Ports respond to ATA suit

NITL (The National Industrial Transportation League) -- Logistics Management, 8/26/2008

The Ports of Los Angeles and Long Beach (August 21) filed their response in opposition to the court complaint made last month by the American Trucking Associations (ATA) which is seeking a preliminary injunction against the port's Clean Truck Program as it applies to the licensing of truckers permitted to operate in the ports.

The ports argue that the ATA complaint is without legal basis for three reasons. First, the statute that the ATA claims is a bar to local entities from regulating trucks does not apply to special tidelands property on which the ports are located. The ports' view is that the U.S. Supreme

Court decided that tidelands were granted to California under the U.S. Constitution and subsequently granted to the cities. Therefore, absent Congressional intent, a federal statute will not interfere with the ports' right to manage and control such land.

Second, the ports claim the statute does not apply to action taken by landholders (i.e. the ports), and as "commercial enterprises…in the business of providing world-class port facilities and services" the ports are not "regulating" the drayage truck industry.

Third, the ports maintain that the statute does not apply to port actions directed to the safety and security of the ports, which is a major goal of the Clean Truck Program concession agreement.

The ports also point out that the ATA's alleged injuries are merely financial in nature and therefore cannot justify the action the preliminary injunction seeks.

The court has scheduled a hearing for September 8 to hear arguments on the motion for preliminary injunction.

Meanwhile the National Retail Federation (NRF) has filed an amicus (friend of the court) brief in support of the ATA position. NRF specifically attacks the ports' expected defense that they are market participants and as such are not regulating an industry. NRF also warned the court that what happens at the southern California ports is likely to spread