Border battle

| April 02, 2008

Both sides await a ruling from the U.S. 9th Circuit Court of Appeals after a hearing on whether the federal cross-border trucking program with Mexico should continue.

On Feb. 12, attorneys for the Teamsters, the Owner-Operator Independent Drivers Association, Public Citizen and the Sierra Club argued that the Federal Motor Carrier Safety Administration broke the law by continuing the project in defiance of the fiscal 2008 omnibus spending bill that President Bush signed Dec. 26. About 450 Teamsters rallied against the program outside the San Francisco courtroom, said Leslie Miller, a union spokeswoman.

When the three-judge panel will issue its ruling is unknown, said Charles Miller, a U.S. Department of Justice spokesman.

The court decided Jan. 23 that it would consider in its ruling an amendment – part of the package signed by President Bush – that was intended by its sponsor, U.S. Sen. Byron Dorgan, D-N.D., to cut off money to the cross-border program. The FMCSA maintains the ban on funding to “establish” such a program bars it only from creating any new cross-border project with Mexico, not from continuing the program started Sept. 6.

Dorgan is trying to schedule a hearing to ask Mary Peters, secretary of the U.S. Department of Transportation, to justify that decision.

The agency’s legal brief in the case stated that the petitioners had not proven they had standing in the case – that is, that they had been harmed or would be harmed by the program. The agency also repeated its contentions that the project is safe and meets congressional mandates.

Judge Dorothy Nelson seemed sympathetic to the plaintiffs, while Judge Andrew Kleinfeld seemed sympathetic to the administration. Judge Michael Daly Hawkins’ position was unclear.
“Why isn’t this case moot with the act of Congress?” Nelson asked.

Jonathan Weissglass, who represented the plaintiffs other than OOIDA, replied that the program had proceeded even after the amendment was signed into law.

“They’re continuing on, even with the low number of truckers?” Nelson asked – a reference to the congressional mandate that the program be statistically valid.

Kleinfeld said the low number of participants – a total of 42 Mexican trucks so far – does not make the project invalid as a test of opening the border, as opponents have argued. “You can get statistical significance out of 42 trucks,” he said.

OOIDA’s attorney, Paul Cullen Sr., said the agency lacked authority to accept Mexican regulations as equal to U.S. regulations. Mexico’s standards are not equal to those in the United States, he said. For example, American truckers’ CDLs are affected by violations involving private vehicles, but the same is not true in Mexico, he said.

Moreover, granting exemptions to regulations is a complex process that the FMCSA did not follow, Cullen argued.

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