Laughy v. ConocoPhillips Co. ( 2010 )


Menu:
  •                  IN THE SUPREME COURT OF THE STATE OF IDAHO
    Docket Nos. 37985 & 37994
    LINWOOD LAUGHY, KAREN                               )
    HENDRICKSON, and PETER GRUBB,                       )
    )
    Plaintiffs-Respondents,       )   Boise, October 2010 Term
    )
    v.                                                  )   2010 Opinion No. 110
    )
    IDAHO DEPARTMENT OF                                 )   Filed: November 1, 2010
    TRANSPORTATION,                                     )
    Defendant-Appellant,                  )   Stephen W. Kenyon, Clerk
    )
    and                                                 )
    )
    CONOCOPHILLIPS COMPANY,                             )
    )
    Intervenor-Appellant.             )
    _____________________________________               )
    Appeal from the District Court of the Second Judicial District of the State of
    Idaho, Idaho County. Hon. John Bradbury, District Judge.
    The decision of the district court is vacated and this case is remanded to the
    district court for entry of a dismissal.
    Hon. Lawrence G. Wasden, Attorney General, Boise, for appellant. Lawrence
    Allen argued.
    Holland & Hart, LLP, Boise, for intervenor/appellant. Erik Stidham argued.
    Advocates for the West, Boise, for respondents. Laurence J. Lucas argued.
    ______________________________________
    W. JONES, Justice
    I. NATURE OF THE CASE
    The Idaho Transportation Department (―ITD‖) granted permits to ConocoPhillips
    Company (―ConocoPhillips‖) to transport oversize loads of refinery equipment down U.S.
    Highway 12 in northern Idaho. The ITD and ConocoPhillips appeal the district court‘s decision
    to reverse these permits.
    II. FACTUAL AND PROCEDURAL BACKGROUND
    ConocoPhillips purchased two coke drums to replace worn out components at its refinery
    1
    in Billings, Montana, and seeks to move them down Highway 12 from Lewiston, Idaho, to the
    Montana border. Highway 12, also known as the Northwest Passage Scenic Byway, runs
    through the Clearwater National Forest and, for much of its length, borders the Clearwater and
    Lochsa Rivers.
    The maximum size and weight of vehicles and their loads allowed on state highways are
    prescribed by statute. See I.C. §§ 49-1001, -1002, -1010 (defining the maximum gross load
    weight and maximum vehicle and load sizes allowed on the highway). ConocoPhillips‘s drum
    shipments will be large enough to take up the entire two-lane highway, requiring a rolling
    roadblock along with a number of traffic flaggers and escort vehicles. For permission to exceed
    the weight and size specifications, ConocoPhillips had to apply to the ITD for ―overlegal‖
    permits under the ITD‘s rules regarding special permits. IDAPA 39.03.10.100; see I.C. § 49-
    1004 (allowing ITD to consider applications for special permits).1                      ConocoPhillips and its
    shipping company, Emmert International, worked with the ITD for over a year to develop a
    detailed transportation plan to move the drums.
    Respondents, who live and operate businesses along the Highway 12 corridor, oppose the
    shipment. They assert that moving the loads down Highway 12 will degrade the local tourism
    industry, disturb the peaceful enjoyment of their homes, impede highway users from reaching
    medical care in an emergency, and could create logistical and environmental problems if a drum
    topples into the river. Respondents voiced their disapproval by sending numerous comments to
    the ITD but did not intervene as parties in the application process.
    Although the ITD had not yet issued the permits to ConocoPhillips, on August 16, 2010,
    Respondents filed a Petition for Judicial Review and Request for Immediate Injunctive Relief.
    The district court granted a temporary restraining order the following day, enjoining the ITD
    from issuing the overlegal permits. On the morning of August 19, 2010, the district court held a
    telephonic hearing in which it granted a motion by ConocoPhillips to intervene. It also lifted its
    restraining order, finding that it did not have jurisdiction over the matter until the ITD issued a
    final agency order. In response, the ITD granted four overlegal permits to ConocoPhillips the
    following day. Then, on August 24, after a hearing on the merits, the district court reversed the
    ITD‘s decision to issue the permits, reasoning that the agency did not properly consider public
    1
    The ITD rules use the phrase ―overlegal permit‖ as a generic term referring to a permit that allows the applicant to
    exceed weight or size restrictions on the highway. IDAPA 39.03.10.000, .001, .100.
    2
    safety and did not reasonably determine that the shipment plan was necessary.
    The ITD and ConocoPhillips (collectively ―Appellants‖) both appealed the district court‘s
    decision. ConocoPhillips then filed a Motion for Expedited Hearing, which this Court granted.
    Oral arguments before this Court occurred on October 1, 2010.
    On appeal, Appellants contend that Respondents did not properly articulate any
    substantial rights that would be prejudiced if the shipment were allowed to occur. They further
    argue that there was substantial evidence in the record to justify the permits because the ITD
    correctly considered the public‘s safety and convenience and determined that it was reasonably
    necessary to use Highway 12.2 Last, ConocoPhillips challenges the district court‘s jurisdiction
    on the grounds that Respondents did not exhaust their avenues for administrative appeal before
    petitioning for judicial review.
    III. ISSUES ON APPEAL
    1.         Whether the district court and this Court have jurisdiction to consider this matter.
    2.         Whether Respondents exhausted their administrative remedies.
    3.         Whether the ITD properly granted the overload permits to ConocoPhillips.
    4.         Whether Respondents or ConocoPhillips are entitled to attorney fees incurred in the
    district court.
    5.         Whether Respondents or ConocoPhillips are entitled to attorney fees on appeal.
    IV. STANDARD OF REVIEW
    ―When reviewing a decision of the district court acting in its appellate capacity, the
    Supreme Court directly reviews the district court‘s decision.‖ Reisenauer v. State, 
    145 Idaho 948
    , 949, 
    188 P.3d 890
    , 891 (2008). The district court shall affirm the agency‘s action unless the
    agency‘s decision was:
    (a) in violation of constitutional or statutory provisions;
    (b) in excess of the statutory authority of the agency;
    (c) made upon unlawful procedure;
    (d) not supported by substantial evidence on the record as a whole; or
    2
    The ITD‘s rules regarding overlegal permits provide:
    01. Primary Concerns. The primary concern of the Department, in the issuance of overlegal
    permits, shall be the safety and convenience of the general public and the preservation of the
    highway system . . . .
    02. Permit Issuance. The Department shall, in each case, predicate the issuance of a [sic] overlegal
    permit on a reasonable determination of the necessity and feasibility of the proposed movement.
    IDAPA 39.03.09.100 (emphases omitted).
    3
    (e) arbitrary, capricious, or an abuse of discretion.
    I.C. § 67-5279(3).         In addition to proving one of the enumerated statutory grounds for
    overturning an agency action, the challenging party must also show prejudice to a substantial
    right. Id. § 67-5279(4); Lane Ranch P’ship v. City of Sun Valley, 
    145 Idaho 87
    , 89–90, 
    175 P.3d 776
    , 778–79 (2007). The interpretation of a statute is an issue subject to free review by this
    Court. Neighbors for Responsible Growth v. Kootenai Cnty., 
    147 Idaho 173
    , 176, 
    207 P.3d 149
    ,
    152 (2009).
    V. ANALYSIS
    A.        The District Court Lacked Jurisdiction over the Petition for Judicial Review
    The Idaho Constitution allows the Legislature to delimit the district courts‘ appellate
    jurisdiction. Idaho Const. art. V, § 20.3 Actions by state agencies are not subject to judicial
    review unless expressly authorized by statute. I.R.C.P. 84(a)(1). Without an enabling statute,
    the district court lacks subject-matter jurisdiction. See, e.g., In re Williams, 
    2010 WL 3463992
    ,
    at *3–4 (Idaho Sep. 7, 2010) (dismissing a petition for review for lack of jurisdiction because no
    statute authorized an appeal); Taylor v. Canyon Cnty. Bd. of Comm’rs, 
    147 Idaho 424
    , 431–32,
    
    210 P.3d 532
    , 539–40 (2009) (same); cf. Regan v. Kootenai Cnty., 
    140 Idaho 721
    , 726, 
    100 P.3d 615
    , 620 (2004) (holding that a reviewable final order is necessary for subject-matter
    jurisdiction). Respondents filed a petition for judicial review in the district court to challenge the
    ITD‘s decision to grant the overlegal permits.                  The Idaho Administrative Procedure Act
    (―IAPA‖), I.C. §§ 67-5201 to -5292, governs judicial review of agency actions. Gibson v. Ada
    Cnty. Sheriff’s Dep’t, 
    139 Idaho 5
    , 7, 
    72 P.3d 845
    , 847 (2003) (citing I.C. § 67-5270(1)). 
    Idaho Code § 67-5270
    , subsections 2 and 3, allow petitions for review in two different scenarios but
    neither applies here.
    None of the parties raised the issue of whether the district court had jurisdiction under §
    67-5270 to consider Respondents‘ petition for judicial review. Nonetheless, the courts are
    obligated to ensure their own subject-matter jurisdiction and must raise the issue sua sponte if
    necessary. Highlands Dev. Corp. v. City of Boise, 
    145 Idaho 958
    , 960, 
    188 P.3d 900
    , 902
    (2008).
    1.      I.C. § 67-5270(2) Does Not Provide Jurisdiction Because Respondents Are
    Challenging an Order in a Contested Case
    3
    The Idaho Constitution states: ―The district court shall have original jurisdiction in all cases, both at law and in
    equity, and such appellate jurisdiction as may be conferred by law.‖ Idaho Const. art. V, § 20 (emphasis added).
    4
    
    Idaho Code § 67-5270
    (2) provides that ―[a] person aggrieved by final agency action other
    than an order in a contested case is entitled to judicial review under this chapter,‖ provided the
    petitioner exhausts the available administrative remedies and complies with other procedural
    requirements.4 I.C. § 67-5270(2) (emphasis added). A contested case is then simply defined as
    ―[a] proceeding by an agency . . . that may result in the issuance of an order.‖ I.C. § 67-5240.
    Thus, for jurisdiction to exist under subsection 2, Respondents must be challenging a final
    agency action that is not an order in a contested case as that term is defined by statute. An order
    is ―an agency action of particular applicability that determines the legal rights, duties, privileges,
    immunities, or other legal interests of one (1) or more specific persons.‖ I.C. § 67-5201(12); see
    also IDAPA 04.11.01.005.12 (stating that an order is an ―agency action of particular
    applicability that determines the legal rights, duties, privileges, immunities, or other legal
    interests of one (1) or more specific persons‖).
    a.       The issuance of the permit was an order
    Determining whether the definition of an order applies requires a two-step analysis.
    Westway Constr., Inc. v. Idaho Transp. Dep’t, 
    139 Idaho 107
    , 112, 
    73 P.3d 721
    , 726 (2003).
    First, to have an order, the Legislature must have empowered the agency to determine the
    particular issue. 
    Id.
     The Legislature has enabled the ITD to issue, in its discretion, permits for
    vehicles traveling on the highway exceeding the legal weight or size. I.C. § 49-1004(1). This
    includes the power to ―limit the time of use and operation . . . and may contain any special
    conditions and require any undertaking or other security‖ that the ITD deems necessary. Id. §
    49-1004(1)(a). Pursuant to this grant of authority, the ITD has adopted a variety of rules and
    standards to govern the permit process, including specifically that applicants provide a written
    plan for moving overlegal loads down the highway.                     IDAPA 39.03.09 to .23.            Thus, the
    Legislature has enabled the ITD to make a determination in this case.
    Second, the decision must determine ―the legal rights, duties, privileges, immunities, or
    other legal interests‖ of one or more persons. Westway Constr., 139 Idaho at 112, 
    73 P.3d at 726
    . This Court has already found that ITD encroachment permits are orders because they
    determine ―the legal rights and interests‖ of the applicant seeking to access their property from a
    state highway. Lochsa Falls, L.L.C. v. State, 
    147 Idaho 232
    , 239, 
    207 P.3d 970
    , 977 (2009).
    4
    A ―person‖ is ―any individual, partnership, corporation, association, governmental subdivision or agency, or public
    or private organization or entity of any character.‖ I.C. § 67-5201(15). Respondents are individuals, so they are
    5
    Similarly, the overlegal permits here would grant to ConocoPhillips the right to transport its
    overlegal coke drums down a state highway, in addition to imposing numerous public-safety
    requirements. See IDAPA 39.03.09.200 (specifying the extent of the ITD‘s authority to issue
    permits). Because the permits are an ―order‖ as defined by the IAPA, they were orders issued in
    a contested case.
    Subsection 2 does not permit review of the ITD‘s order because it is instead meant to
    enable challenges either to an agency rule or an agency‘s compliance with a legal duty. Overall,
    the IAPA contemplates three distinct types of agency actions that could be reviewed by a court:
    (1) rules, (2) orders, and (3) the performance of a duty placed on the agency by law. I.C. § 67-
    5201(3).5 Subsection 2, however, rules out reviewability for orders in contested cases, so it must
    therefore only permit judicial review of rules or the agency‘s performance of a legal duty.
    The distinction between an order and a rule ―turns primarily on applicability: orders—
    like judicial decrees—affect identified parties; rules—like statutes—affect classes of persons.‖
    Michael S. Gilmore & Dale D. Goble, The Idaho Administrative Procedure Act: A Primer for the
    Practitioner, 
    30 Idaho L. Rev. 273
    , 284 (1993) (emphasis omitted).                    Unlike a generally
    applicable rule, the permits particularly affect only ConocoPhillips‘s right to move a load down a
    state highway. The permits are therefore an order, not a rule, and are not reviewable under
    subsection 2 because they were orders in a contested case. Similarly, there are other duties that
    are imposed on the ITD by statute or judicial mandate, such as, for example, the obligation to
    adopt a uniform system of traffic-control devices. Id. at 289; I.C. § 49-201(3). A failure or
    deficiency in performing this duty would also be an agency action reviewable under subsection
    2. Again, however, the permits at issue in this case affect ConocoPhillips‘s particular rights,
    privileges, and duties. They are therefore an order, not the product of an improperly performed
    duty. Respondents contend that by issuing the permits, the ITD incorrectly fulfilled its ―duty‖ to
    ensure the public‘s safety and convenience. This in reality is just a substantive challenge to
    ITD‘s order that questions whether the ITD correctly applied the standards governing special
    permits. Consequently, no jurisdiction is available under I.C. § 5270(2).
    b.       This is a contested case even though the ITD used informal procedures
    The Dissent asserts that this is not a contested case because the ITD utilized informal
    ―persons‖ who could, in some cases, be eligible for review under I.C. § 67-5270(2).
    6
    procedures in processing the case.
    A person aggrieved by an agency action other than an order in a contested case is entitled
    to petition for judicial review. I.C. § 67-5270(2). This was a contested case even though the
    ITD only followed informal procedures because the IAPA both authorizes and expressly
    encourages state agencies to resolve issues informally. Formal procedures, such as notice, a
    hearing, or a formal record are not part of the definition of an order in a contested case.
    The IAPA provides that an ―informal disposition may be made of any contested case by
    negotiation, stipulation, agreed settlement, or consent order.‖ I.C. § 67-5241(1)(c). It goes on to
    specifically state that ―[i]nformal settlement of matters is to be encouraged.‖ Id. The statute
    represents a conscious legislative effort to ―encourage informal dispute resolution‖ related to all
    kinds of agency action. Gilmore & Goble, supra, 30 Idaho L. Rev. at 280; see also Act of April
    8, 1992, ch. 263, § 25, 
    1992 Idaho Sess. Laws 783
    , 802 (adding I.C. § 67-5241).
    However, an agency cannot unilaterally decide to utilize informal procedures to the
    exclusion of formal proceedings. ―Unless all parties agree to the contrary in writing, informal
    proceedings do not substitute for formal proceedings and do not exhaust administrative remedies,
    and informal proceeding [sic] are conducted without prejudice to the right of the parties to
    present the matter formally to the agency.‖ IDAPA 04.11.01.103.
    Although the ITD has adopted substantive standards for issuing special permits, the
    Attorney General promulgates rules of procedure for agencies to use when executing their
    general functions, including adjudicating contested cases. Id. § 67-5206(2), (4). These rules
    apply unless an agency has devised its own procedural scheme, which the ITD has not. Id. § 67-
    5206(5). The ITD rules also specifically state that appeals in special-permit applications are
    governed by the Attorney General‘s rules.                      IDAPA 39.03.11.003.           The Idaho Rules of
    Administrative Procedure of the Attorney General (―the Rules‖) can be found at IDAPA
    04.11.01.000 to .999.
    The Rules allow informal proceedings to be followed in contested cases before an
    agency. IDAPA 04.11.01.100. ―Unless prohibited by statute, the agency may provide for the
    use of informal procedure at any stage of a contested case.‖ IDAPA 04.11.01.101. There is
    ample authority supporting an agency‘s decision to handle a dispute informally.
    5
    I.C. § 67-5201(3) defines an ―agency action‖ as: ―(a) The whole or part of a rule or order; (b) The failure to issue a
    rule or order; or (c) An agency‘s performance of, or failure to perform, any duty placed on it by law.‖
    7
    The Dissent asserts that only formally adjudicated cases are contested cases under the
    IAPA. To the contrary, no statute or rule makes formal proceedings a prerequisite to a contested
    case. A contested case is defined both by statute and by the Rules as a ―proceeding by an agency
    . . . that may result in the issuance of an order.‖ Id. § 67-5240; see also IDAPA 04.11.01.005.06
    (stating that a contested case is a ―proceeding which results in the issuance of an order‖).
    Moreover, Rule 50 states that the rules governing both informal and formal proceedings apply to
    agencies in contested cases. IDAPA 04.11.01.050.
    Following the plain text of the statute, this Court has twice stated that there are only two
    elements to a contested case: (1) the agency must be empowered to determine the particular
    issue, and (2) the action must fit the statutory definition of an ―order.‖ Lochsa Falls, 147 Idaho
    at 237, 
    207 P.3d at 968
    ; Westway Constr., 
    139 Idaho at
    111–13, 
    73 P.3d at
    725–27. This Court
    has never otherwise suggested that only formally adjudicated cases are contested cases. See
    Barron v. Idaho Dep’t of Water Res., 
    135 Idaho 414
    , 417, 
    18 P.3d 219
    , 222 (2001) (stating that
    ―all proceedings by an agency . . . that may result in the issuance of an ‗order‘‖ are governed by
    the IAPA (emphasis added)); Dupont v. Idaho State Bd. of Land Comm’rs, 
    134 Idaho 618
    , 622, 
    7 P.3d 1095
    , 1099 (2000) (―I.C. § 67-5240 defines any proceeding that may result in an order as a
    contested case, unless otherwise provided.‖ (emphasis added)). Whether formal procedures were
    followed is irrelevant to the definition of a contested case.
    The Dissent nonetheless contends that there was no contested case because the ITD stated
    that it declined to initiate one and indicated that it did not regard ConocoPhillips‘s application for
    a permit as a contested case. The Dissent cites I.C. § 67-5241(1)(a), which does provide that ―an
    agency or a presiding officer may decline to initiate a contested case.‖ Again, however, it does
    not matter whether the agency regards a proceeding to be part of a contested case or not.
    Proceedings that result in the issuance of an order are contested cases. I.C. § 67-5240.
    
    Idaho Code § 67-5241
    (1)(a) does not state that an agency may decline to follow the
    required statutory procedures in a contested case. It states that an agency may decline to initiate
    a contested case. It recognizes that some agencies have a prosecutorial function and, when
    exercising that function, have discretion to decline to prosecute.         Agencies can have both
    prosecutorial and adjudicatory functions.       As IDAPA 04.11.01.420 states, ―[w]hen statute
    assigns to an agency both (1) the authority to initiate complaints or to investigate complaints
    made by the public, and (2) the authority to decide the merits of complaints, the agency is
    8
    required to perform two distinct functions: prosecutorial/investigative and adjudicatory.‖ The
    prosecutorial function includes deciding whether or not to issue a complaint.           As IDAPA
    04.11.01.420.01 states, ―[t]he prosecutorial function includes presentation of allegations or
    evidence to the agency head for determination whether a complaint will be issued . . . .‖ A
    ―complaint‖ charges a person with a violation of the law.          ―All pleadings charging other
    person(s) with acts or omissions under law administered by the agency are called ‗complaints.‘‖
    IDAPA 04.11.01.240.01. The filing of a complaint initiates a contested case. See IDAPA
    04.11.01.210 (―Pleadings in contested cases are called applications or claims or appeals,
    petitions, complaints, protests, motions, answers, and consent agreements.‖). 
    Idaho Code § 67
    -
    5241(1)(a) simply provides that an agency has discretion to decline to prosecute—to decline to
    initiate a contested case.
    For example, under the Idaho Bar Commission Rules (―I.B.C.R.‖), Bar Counsel
    investigates all grievances that allege violations of the Rules of Professional Conduct. I.B.C.R.
    504(b), 509(a). Bar Counsel has a number of options when handling a grievance, including the
    power to seek formal charges.       I.B.C.R. 509(c).   Yet, after an informal investigation, Bar
    Counsel often chooses to simply disregard the matter, to issue an informal admonition, or to
    privately reprimand the charged attorney. I.B.C.R. 509(b), (c). While all of these actions would
    constitute the agency‘s disposition in a dispute, none involves an order that determines the
    attorney‘s legal rights, duties, or privileges. These actions would reflect the presiding officer‘s
    decision to ―decline to initiate a contested case‖ under I.C. § 67-5241(1)(a).
    The Dissent also argues that, since apparently no application was filed with the ITD until
    the day it issued the permits, no contested case was ever initiated. It cites Rule 200 for the
    proposition that ―an application is the initial pleading that commences a contested case.‖ This
    position ignores the plain text of Rule 200, which simply provides that representatives for service
    must be named in ―[t]he initial pleading of each party at the formal stage of a contested case.‖
    IDAPA 04.11.01.200 (emphasis added). The rule on its face does not require any pleading to
    commence a contested case, but merely governs how pleadings are filed in the formal stage of a
    contested case. ConocoPhillips did not have to file an application to initiate a contested case.
    Therefore, because the issuance of the permit was an order in a contested case, this Court
    does not have jurisdiction under I.C. § 67-5270(2).
    2.      I.C. § 67-5270(3) Does Not Provide Jurisdiction Because Respondents Were Not
    9
    Parties and No Final Order Was Issued
    a. Respondents were not parties before the agency
    Subsection 3 states that ―[a] party aggrieved by a final order in a contested case decided
    by an agency . . . is entitled to judicial review under this chapter,‖ again if some additional
    procedural requirements are met. I.C. § 67-5270(3) (emphasis added). ―‗Party‘ means each
    person or agency named or admitted as a party, or properly seeking and entitled as of right to be
    admitted as a party.‖ Id. § 67-5201(13).
    Rule 150 states that ―[p]arties to contested cases before the agency are called applicants
    or claimants or appellants, petitioners, complainants, respondents, protestants, or intervenors.‖
    IDAPA 04.11.01.150. People who ―seek any right, license, award or authority from the agency
    are called ‗applicants‘ or ‗claimants‘ or ‗appellants.‘‖ IDAPA 04.11.01.151. To oppose an
    applicant, anyone can petition to become an ―intervenor‖ under Rule 156, a blanket term that
    applies to a person who does not fall into a specific category and who is nonetheless permitted to
    participate as a party.6 IDAPA 04.11.01.156. Persons petitioning for intervenor status are
    admitted as parties if they can demonstrate a ―substantial interest in the proceeding.‖ IDAPA
    04.11.01.350, .353.
    Respondents were not admitted as parties at any time; neither did they seek admission.
    Respondents sent a number of written comments and objections to the ITD to oppose
    ConocoPhillips‘s application for an overlegal permit, but never filed as intervenors or any other
    kind of party. Despite the fact that ConocoPhillips and the ITD had undergone months of
    discussion over this matter, Respondents simply filed a petition for judicial review just as the
    ITD was preparing to issue the overlegal permits. They therefore were not parties entitled to
    judicial review under I.C. § 67-5270(3).7
    Allowing only a party, and not simply any interested person, to petition for judicial
    review of an order is a natural corollary to the exhaustion doctrine, which requires all petitioners
    to exhaust their administrative remedies before appealing to the district court. See I.C. § 67-5271
    (imposing exhaustion requirement). The exhaustion doctrine flows from a number of important
    6
    Rule 156 provides: ―Persons, not applicants or claimants or appellants, complainants, respondents, or protestants to
    a proceeding, who are permitted to participate as parties pursuant to Rules 350 through 354 are called ‗intervenors.‘‖
    IDAPA 04.11.01.156.
    7
    It is immaterial whether Respondents were ―entitled‖ to be admitted as intervenors because there is no indication in
    the record that they sought such admission.
    10
    policy considerations, ―such as providing the opportunity for mitigating or curing errors without
    judicial intervention, deferring to the administrative processes established by the Legislature and
    the administrative body, and the sense of comity for the quasi-judicial functions of the
    administrative body.‖ White v. Bannock Cnty. Comm’rs, 
    139 Idaho 396
    , 401–02, 
    80 P.3d 332
    ,
    337–38 (2003).     Being admitted as parties would have enabled Respondents to actively
    participate in the application process at the agency level. Shokal v. Dunn, 
    109 Idaho 330
    , 334,
    
    707 P.2d 441
    , 445 (1985). If Respondents had formally intervened, the agency could have
    brought its expertise to bear in considering the parties‘ competing interests, heard Respondents‘
    evidence and testimony, and corrected substantive mistakes. Instead, Respondents sought to
    circumvent the administrative process by going directly to the district court to block
    ConocoPhillips‘s overlegal permits from issuing.
    Counsel for Respondents suggested at oral argument that, since the ITD and
    ConocoPhillips were undergoing an informal application process, the Respondents could become
    parties by informally opposing the permits. Neither the IAPA nor the Rules, however, recognize
    or create a classification of ―informal parties.‖ Although the IAPA expressly encourages parties
    and agencies to reach informal dispositions, I.C. § 67-5241(1), a person asserting party status
    must still be admitted or rightfully be seeking admission as a party, id. § 67-5201(13). The law
    distinguishes between informal and formal proceedings merely to specify what procedures the
    agency must undergo in adjudicating a contested case, such as appointing hearing examiners and
    building a formal record. See IDAPA 01.11.01.100 (stating that ―[i]nformal proceedings are
    proceedings in contested cases . . . to be conducted using informal procedures‖ such as a
    proceeding without a formal record, designation of parties, hearing examiners, or other formal
    procedures). Persons seeking admission must still file a protest, a petition to intervene, or
    another similar pleading to be admitted as a party. IDAPA 04.11.01.250, .350, .353. Because
    Respondents never sought to be admitted as parties, it is irrelevant whether the proceedings were
    in a formal or informal phase.
    The Dissent suggests that Respondents ―may be entitled to party status‖ as petitioners,
    complainants, or protestants even without filing any pleadings. Even if someone could become a
    party without filing any pleadings, and even if Respondents had filed a pleading to initiate formal
    proceedings, they would not have been eligible for party status under any of these categories.
    First, ―petitioners‖ are persons ―who seek to modify, amend or stay existing orders or rules of the
    11
    agency . . . or to otherwise take action that will result in the issuance of an order.‖ IDAPA
    04.11.01.152. If Respondents had participated in the agency proceedings, they would have been
    opposing an application or, in other words, opposing the issuance of an order. They would not
    have been seeking to modify or stay an existing order. Second, ―complainants‖ are persons
    ―who charge other person(s) with any act or omission.‖ IDAPA 04.11.01.153. Respondents
    would not be charging ConocoPhillips with violating any rule or regulation, but would be
    opposing their application for a permit.          Last, ―protestants‖ are persons ―who oppose an
    application or claim or appeal and who have a statutory right to contest the right, license, award
    or authority sought by an applicant.‖            IDAPA 04.11.01.155 (emphasis added).             While
    Respondents certainly oppose an application, they have no specific statutory right to do so, and
    have never asserted as such. As explained above, Respondents might have sought to be admitted
    as intervenors if they could demonstrate a ―substantial interest in the proceeding,‖ but they took
    no steps to do so. IDAPA 04.11.01.350, .353. Respondents are not entitled to party status unless
    granted leave to intervene, and were therefore never wrongly denied the opportunity to take part
    in formal agency proceedings.
    b. There is not yet a final order
    A party aggrieved by a final order in a contested case can seek judicial review. I.C. § 67-
    5270(3). Not only must the person seeking judicial review be a party, but there must be a final
    order. It does not appear in this case that there is yet a final order that is subject to judicial
    review.
    The only document in the appellate record that could be a final order is the
    ―Memorandum of Decision‖ issued on August 20, 2010, by Alan Frew, Administrator of the
    Division of Motor Vehicles, Idaho Transportation Department. For that to be a final order, it
    must fit within one of three definitions, and it does not.
    1.      A final order where the presiding officer was the agency head
    ―If the presiding officer is the agency head, the presiding officer shall issue a final order.‖
    I.C. § 67-5246(1). ―‗Agency head‘ means an individual or body of individuals in whom the
    ultimate legal authority of the agency is vested by any provision of law.‖ I.C. § 67-5201(4). The
    Idaho Transportation Board is the agency head of the Idaho Transportation Department. I.C. §§
    40-301 & 40-501. Because Mr. Frew is not the Board, his memorandum cannot constitute a final
    order issued by the agency head.
    12
    2.      A final order issued by the agency head upon review of a
    recommended order
    ―If the presiding officer issued a recommended order, the agency head shall issue a final
    order following review of that recommended order.‖              I.C. § 67-5246(2).       Mr. Frew‘s
    memorandum does not constitute a recommended order because ―[a] recommended order shall
    include a statement of the schedule for review of that order by the agency head or his designee.‖
    I.C. § 67-5244. There is no such statement in the memorandum. In addition, a recommended
    order is not a final order. The agency head must still issue a final order after reviewing the
    recommended order, and the record does not reveal any such final order issued in this case.
    3.      A preliminary order that becomes a final order.
    ―If the presiding officer issued a preliminary order, that order becomes a final order
    unless it is reviewed as required in section 67-5245, Idaho Code.‖ I.C. § 67-5246(3). Mr.
    Frew‘s memorandum was not a preliminary order because it did not include ―(a) A statement
    that the order will become a final order without further notice; and (b) The actions necessary to
    obtain administrative review of the preliminary order,‖ both of which are required for a
    preliminary order. I.C. § 67-5245(1).
    In summary, the record does not indicate that the IDT ever issued a final order in this
    case. Absent a final order, any petition for judicial review is premature.
    Because the Respondents are not parties, and because there was no final order issued,
    there is no jurisdiction under I.C. § 67-5270(3).
    3.      Respondents Are Not Entitled to Have the Case Remanded to the Agency for
    Formal Proceedings
    The Dissent argues that even if this were a contested case, judicial review is premature
    and the permits should be remanded to the ITD for formal adjudication procedures. It refers to
    Rule 102, which states that ―any person participating in an informal proceeding must be given an
    opportunity for a later formal administrative proceeding before the agency, at which time the
    parties may fully develop the record before the agency.‖ IDAPA 04.11.01.102. The Dissent
    maintains that Respondents were automatically entitled to formal proceedings because they
    submitted comments to the ITD during the application process.
    Because the district court, and thus this Court, lacks jurisdiction, the only remedy this
    Court may order is a dismissal. ―Whenever it appears by suggestion of the parties or otherwise
    that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.‖ I.R.C.P.
    13
    12(g)(4). Therefore, this Court must dismiss the case and does not have the power to remand to
    the agency for further proceedings.
    Further, regardless of whether Respondents were entitled to an ―opportunity‖ to
    participate in formal proceedings here, they never took the basic procedural steps necessary to
    request them. ―Formal proceedings . . . must be initiated by a document (generally a notice,
    order or complaint if initiated by the agency) or another pleading listed in Rules 210 through 280
    if initiated by another person.‖ IDAPA 04.11.01.104. Rules 210 through 280 list a number of
    pleadings a person may file, including ―applications or claims or appeals, petitions, complaints,
    protests, motions, answers, and consent agreements.‖ See IDAPA 04.11.01.210. Respondents
    filed no such documents. They therefore are not entitled to any formal hearing before the ITD.
    Respondents would only be entitled to participate in formal proceedings if they became parties
    before a final order was entered.
    It is no mystery why persons must initiate formal proceedings by filing a pleading. This
    rule prevents anyone from doing what Respondents did here: sit out the agency proceedings,
    show up in court just as a decision is made, and force the agency to litigate the matter. As the
    Dissent itself emphasizes, the ITD handles roughly 28,000 overlegal permits per year. It would
    place a crushing burden on state agencies if anyone supposedly aggrieved by an agency action
    could become a ―participant‖ by commenting on a permit application, then drag the agency into
    court and force it to hold formal hearings after making its decision. This would eviscerate the
    administrative process and allow anyone to unfairly prevent an applicant from receiving a license
    from a state agency.
    To summarize our holding today, it is entirely possible that Respondents have real
    grievances with the ITD‘s decision in this case, and the Court is sympathetic to those who seek
    to participate in the government‘s participation process. Even so, the Constitution and the
    Legislature have limited the Court‘s power to act here. Without the authority to consider the
    Respondent‘s arguments, the Court‘s only choice is to remand with instructions to dismiss
    without prejudice.
    B.     No Party Is Entitled to Attorney Fees Either in the District Court or on Appeal
    The ITD did not request attorney fees on appeal and did not challenge the district court‘s
    refusal to award fees below. ConocoPhillips, however, requests fees under I.C. § 12-117(1) and
    -121, both in the district court and on appeal. Respondents also request fees under I.C. § 12-
    14
    117(1) below and on appeal.8
    Neither ConocoPhillips nor Respondents are eligible for attorney fees under I.C. § 12-
    117(1). This provision was amended to permit fees ―in any administrative proceeding or civil
    judicial proceeding.‖ Act of March 4, 2010, ch. 29, 
    2010 Idaho Sess. Laws 49
    , 49–50.9 As this
    Court recently held, however, a petition for judicial review of an agency action is neither an
    administrative proceeding nor a civil judicial proceeding, so § 12-117(1) does not enable the
    courts to award attorney fees in cases like this one. Smith v. Washington Cnty., No. 35851
    (Idaho Oct. 6, 2010). Neither party can collect fees under § 12-117(1).
    ConocoPhillips is also not entitled to fees under I.C. § 12-121. This provision grants
    discretion to the Court to award fees ―[i]n any civil action.‖10 A petition for judicial review is
    not a civil action, Neighbors for Responsible Growth v. Kootenai Cnty., 147 Idaho at 176 n.1,
    
    207 P.3d at
    152 n.1, so fees are not available under § 12-121. Accordingly, ConocoPhillips‘s
    request for attorney fees under I.C. § 12-121 is denied.
    VI. CONCLUSION
    The district court lacked jurisdiction, as does this Court, to consider Respondents‘
    petition for judicial review. The order reversing the ITD‘s decision to grant overlegal permits to
    ConocoPhillips is vacated and the case remanded for entry of an order of dismissal without
    prejudice for lack of jurisdiction. No attorney fees are awarded.
    Chief Justice EISMANN and Justice HORTON CONCUR.
    8
    In their Response Brief on appeal, Respondents requested attorney fees from the ITD under ―I.C. § 12-117(a)‖
    because the ITD is a state agency. Respondents were plainly referring to I.C. § 12-117(1), which provides for
    attorney fees in some actions involving state agencies as parties.
    9
    I.C. § 12-117(1) provides:
    Unless otherwise provided by statute, in any administrative proceeding or civil judicial proceeding
    involving as adverse parties a state agency or political subdivision and a person, the state agency
    or political subdivision or the court, as the case may be, shall award the prevailing party
    reasonable attorney‘s fees, witness fees and other reasonable expenses, if it finds that the
    nonprevailing party acted without a reasonable basis in fact or law.
    10
    I.C. § 12-121 provides:
    In any civil action, the judge may award reasonable attorney's fees to the prevailing party or
    parties, provided that this section shall not alter, repeal or amend any statute which otherwise
    provides for the award of attorney's fees. The term ―party‖ or ―parties‖ is defined to include any
    person, partnership, corporation, association, private organization, the state of Idaho or political
    subdivision thereof.
    15
    J. JONES, Justice, dissenting or, alternatively, concurring in the result.
    I dissent because this does not appear to be a contested case under the Idaho
    Administrative Procedure Act (APA) and the Respondents have the right to seek judicial review
    of ITD‘s decision. However, if this is properly considered to be a contested case, I concur that it
    should be dismissed for the reason that judicial review is premature. No final order has been
    issued by ITD and Respondents are entitled to the opportunity to request further proceedings.
    THIS IS NOT A CONTESTED CASE
    It is common knowledge that if something does not walk like a duck or talk like a duck, it
    is probably not a duck. Similarly, if a request for a state permit is not required to be processed as
    a contested case, if the request is not treated like a contested case by the processing agency, and
    if the agency does not comply with any of the requirements for handling a contested case, it
    probably is not a contested case. That is the situation here.
    While it is true that requests or applications for state licenses and permits are proceedings
    that may result in the issuance of an order, as defined in Idaho Code section 67-5201(12),
    arguably making the proceedings contested cases under Idaho Code section 67-5240, that is not
    the end of the inquiry. In order to be a contested case, it must be processed in accordance with
    the statutory requirements in Idaho Code sections 67-5242 through 5253. None of those
    requirements were complied with in this case. There was no notice of hearing, hearing, presiding
    officer, or recording of proceedings as required under section 5242. There was no recommended
    order, preliminary order, or final order as required by sections 5243 through 5246. There was no
    contested case record upon which to base findings of fact as provided in section 5248. The
    ―evidence‖ was not as contemplated in section 5251, making it unlikely that the record complied
    with section 5249. And, while section 5253 contemplates no ex-parte communications, the
    record here was based almost solely on ex-parte communications between ConocoPhillips/
    Emmert and ITD.
    Further, as required under Idaho Code section 67-5206(2), the Idaho Attorney General
    has promulgated rules of administrative procedure that apply to administrative proceedings (AG
    Rules). IDAPA 04.11.01. According to Rule 1 of the AG Rules, ―Every state agency that
    conducts rulemaking or hears contested cases must adopt individual rules of procedure as
    required by this chapter. Further every state agency will be considered to have adopted the
    16
    procedural rules of this chapter unless the state agency by rule affirmatively declines to adopt
    this chapter, in whole or in part.‖ IDAPA 04.11.01.001.02. ITD has not affirmatively declined to
    adopt the AG Rules, except in certain narrow respects not relevant here, and therefore the AG
    Rules apply here. ITD did not follow the contested case rules set out in Subchapter B (Rules 100
    through 800) of the AG Rules.11
    Idaho Code section 67-5240 appears to make every application for a state license, permit,
    registration, or charter, a contested case subject to the contested case rules. However, the APA
    requires much more of a proceeding in order to properly categorize it as a contested case. The
    Legislature obviously recognized that it would be impractical and unnecessary to make each and
    every one of these proceedings a contested case. Indeed, it would impose a crushing burden on
    every state agency to have to appoint a hearing officer every time someone walked through the
    door wanting some sort of permit, or to be licensed as a lawyer, chiropractor, certified public
    accountant, or the like.12 Thus, the Legislature wisely provided that, ―Unless prohibited by other
    provisions of law . . . an agency or a presiding officer may decline to initiate a contested case…‖
    Idaho Code section 67-5241(1)(a). If an agency declines to initiate a contested case, the agency
    is to furnish a brief statement for the reasons therefor. Idaho Code section 67-5241(3). It is
    unknown whether that occurred in this case. What is known is that ITD did not consider this to
    be a contested case and did not process it as one. In its opening brief, ITD stated:
    The issuance of permits is authorized in Idaho Code title 49. There is not any
    provision in title 49 which requires the Department to base its actions exclusively
    on a record. In fact, the permit process generally is not resolved in a contested
    case or an adjudicative manner. Accordingly, this is a not a case in which the
    Department was required to make its decision exclusively upon the administrative
    record.
    Counsel for the Department conceded at oral argument that this case was not handled as a
    11
    It is not even clear if, or when, a contested case might have been initiated in this matter. According to Rule 200 of
    the AG Rules, an application can initiate a contested case. IDAPA 04.11.01.200. Among the documents in the file
    before the Court are four documents entitled ―Idaho Permit and Application for Over-Legal Permit and/or Load
    Movement,‖ all dated August 20, 2010. If these were ConocoPhillips/Emmert‘s first applications for the four
    permits at issue here, it is unlikely a contested case was initiated prior to August 20, 2010. The copies of documents
    in the Court file do not appear to have been signed by or behalf of ConocoPhillips/Emmert, making it difficult to
    determine whether the applications ever became effective.
    12
    In an affidavit submitted in support of ITD‘s motion for expedited hearing, Mr. Frew pointed out that ITD issued
    over 28,000 overlegal permits in fiscal year 2010 for overweight and oversized vehicles. Conducting a contested
    case for each of these applications would be a daunting and costly undertaking.
    17
    contested case.13
    ITD apparently has a policy of declining to initiate contested cases in the context of
    permit applications. Rather, it appears that ITD generally treats these matters in an informal
    manner, comparable in some respects to the informal procedure described in AG Rule 100,14
    ―i.e., procedures without a record to be preserved for later agency or judicial review, without the
    necessity of representation according to Rule 202, without formal designation of parties, without
    the necessity of hearing examiners or other presiding officers, or without other formal procedures
    required by these rules for formal proceedings.‖ IDAPA 04.11.01.100.
    Since the Department did not consider this to be a contested case and did not process it as
    a contested case but, rather, processed it informally, it is simply not a contested case. The
    Legislature gives an agency the option to decline to initiate a contested case and that is what
    occurred here. Therefore, the Respondents are entitled to review under Idaho Code section 67-
    5270(2) which provides, ―A person aggrieved by final agency action other than an order in a
    contested case is entitled to judicial review under this chapter if the person complies with the
    requirements of sections 67-5271 through 67-5279, Idaho Code.‖ While the permit and
    13
    It would be unfair to deem this concession as a binding admission that the matter was not a contested case, just as
    it would unfair and incorrect to deem the Respondents‘ attorney‘s concession that the Respondents were not parties
    in this matter to be a binding admission. Neither issue was raised or decided below, nor addressed in the briefing
    before the Court. We should base our decisions upon the actual facts and not upon what individual participants
    perceive them to be, particularly where the parties have not had an opportunity to brief and argue the issues. With
    regard to the contested case issue, while the concession by ITD does not constitute a legal admission, it certainly
    does have a bearing on the factual matter as to how ITD processes overlegal permit requests, including this one. It
    was by no means handled in the manner of a formal contested case. The question is whether ITD declined to process
    it as a contested case of any nature under the statutory authority of I.C. § 67-5241(1)(a) or whether ITD was
    processing it initially under the informal procedure provided for in the AG Rules. With regard to the issue of
    whether Respondents are parties, the concession by their attorney that they had not been admitted as parties was, at
    best, uninformed. It was fairly obvious when this case was presented on oral argument that Respondents‘ attorney
    was not familiar with the various definitions of party participants in the AG Rules. The discussion revolved around
    the definition of a ―party‖ in the context of the Idaho Rules of Civil Procedure, which definition does not apply in
    the context of an administrative proceeding. As one might expect, the AG Rules set out more relaxed definitions for
    an administrative proceeding that contemplate a broader range of parties than in a court proceeding. Again, this
    matter was not briefed or considered below and not briefed or argued before this Court. This Court has little basis to
    determine whether or not Respondents (or, for that matter, ConocoPhillips/Emmert) obtained party status in the
    administrative proceeding. As that determination is not necessary to the decision of this case, since the procedure in
    the administrative proceeding was informal under any definition, since the administrative proceeding produced no
    final order, and since Respondents will have the opportunity upon remand to seek party status (if they are not
    already parties) and to request a formal administrative proceeding under Rule 102 of the AG Rules, it is a matter of
    no import here.
    14
    The AG Rules apply only to contested cases, the attorney general not having been authorized to promulgate
    agency rules for proceedings exempted under I.C. § 67-5241(1)(a). Thus, the AG Rules make no provision for
    procedures to be employed by the agency where it declines to initiate a contested case. The informal manner in
    which this case was processed need not necessarily comply with the informal procedure provisions of the AG Rules
    (Rules 100-103), as those rules are promulgated specifically to apply to contested cases.
    18
    application documents, or the Memorandum of Decision, may be orders, they are not orders in a
    contested case because this was not a contested case. One need not be a ―party‖ in order to obtain
    judicial review of a final agency action where the action is something ―other than an order in a
    contested case‖ under the APA. An aggrieved person may seek judicial review of final agency
    action resulting outside the context of a contested case. As persons who live along the route and
    who will be affected by the transportation of the ConocoPhillips units, Respondents certainly
    appear to be aggrieved persons. As such, they have a right to be heard.
    IF THIS IS A CONTESTED CASE, JUDICIAL REVIEW IS PREMATURE
    If ITD‘s declination to initiate a contested case in this matter was invalid for failure to
    ―furnish a brief statement of the reasons for [its] decision‖ not to initiate a contested case or, if
    for some other reason not apparent in the record before the Court, this is properly considered to
    be a contested case, judicial review is premature because contested case proceedings have not
    run their course. If this is a contested case, I concur in the dismissal so that administrative
    proceeding can be completed, including the issuance of a proper final order.
    The procedural analysis is complicated by the uncertainty as to when, or even if,
    ConocoPhillips/Emmert actually submitted an application for the overlegal permits. None of the
    parties have pointed to an application by ConocoPhillips, or its agent Emmert, prior to the four
    permit and application documents dated August 20, 2010. The copies of those documents in the
    file are not signed. Under the AG Rules, an application is the initial pleading that commences a
    contested case. IDAPA 04.11.01.200. If no application was submitted prior to August 20, 2010,
    it may be that a contested case was never properly initiated.
    It appears axiomatic that there can be no parties to a contested case until a contested case
    is initiated. If ConocoPhillips/Emmert did not file an application until August 20, 2010, it could
    hardly have been a party before that time.15 Based upon the state of the record, it is difficult to
    say when a contested case was initiated, if indeed one was.
    However, assuming that a contested case was initiated some time during the discussions
    15
    It is unclear when, or if, ConocoPhillips/Emmert became a ―party‖ in the administrative proceeding. Whether a
    contested case is handled under informal or formal proceedings, it must be initiated by a pleading within the
    meaning of AG Rule 200. IDAPA 04.11.01.200. The record does not disclose any document that could be
    considered to be an initial pleading, with the possible exception of the four permit and application documents, dated
    August 20, 2010. ConocoPhillips/Emmert may have regarded this as a potential defect, as it did move to intervene in
    the administrative appeal before the district court on August 19, 2010, and was granted intervenor status by the
    district court judge. That occurred the day before the applications/permits were issued by ITD.
    19
    between ConocoPhillips/Emmert and ITD, it was obviously conducted under informal procedure.
    IDAPA 04.11.01.101. Rule 102 of the AG Rules states:
    If statute provides that informal procedures shall be followed with no opportunity
    for further formal administrative review, then no opportunity for later formal
    administrative proceedings must be offered following informal proceedings.
    Otherwise, except as provided in Rule 103,16 any person participating in an
    informal proceeding must be given an opportunity for a later formal
    administrative proceeding before the agency, at which time the parties may fully
    develop the record before the agency.
    IDAPA 04.11.01.102. (emphasis added). None of the briefing before the Court discloses a statute
    that provides for the use of informal procedure with regard to the permits at issue here or that
    prohibits an opportunity for further formal administrative review. Therefore, persons
    participating in the informal proceedings at issue here, specifically including Respondents, must
    be given an opportunity for a later formal administrative proceeding in order to fully develop the
    record before ITD. While it is not entirely clear from the AG Rules, it appears that persons, other
    than applicants, who participate in informal proceedings may be entitled to party status when
    formal proceedings follow the informal proceedings. Such persons may qualify as petitioners
    (IDAPA 04.11.01.152), complainants (IDAPA 04.11.01.153) or protestants (IDAPA
    04.11.01.155). If Respondents do fall within one of these categories, and it appears they might,
    they become parties upon the commencement of formal proceedings and need not file a petition
    for intervention to become a party during the course of the formal proceedings.
    Furthermore, ITD has failed to issue a final order. The permits and Memorandum of
    Decision, all dated August 20, 2010, do not constitute final orders under the provisions of
    IDAPA. In Westway v. Idaho Transportation Dept., 
    139 Idaho 107
    , 
    73 P.3d 721
     (2003), this
    Court considered and decided what constitutes a final order issued by ITD:
    The next question is whether a final order was issued by the ITD. It does not
    argue that it has issued an order that would be final under the APA. The two
    documents in the record that could arguably constitute a final order are the
    August 14, 2000 letter written by ITD‘s counsel and the September 14, 2000 letter
    entitled ―Final Report‖ written by a roadway design engineer. Because neither of
    those persons was the ―agency head‖ (the Idaho Transportation Board), they
    16
    Rule 103 of the AG Rules states that ―informal proceedings do not substitute for formal proceedings and do not
    exhaust administrative remedies,‖ unless all parties agree to the contrary in writing. IDAPA 04.11.01.103. There is
    no such written agreement in this case. It seems fairly obvious that administrative remedies have not been exhausted
    here.
    20
    could only issue either a recommended order or a preliminary order. IDAHO
    CODE § 67-5243(1) (2001). A recommended order becomes final only after
    review by the agency head in accordance with 
    Idaho Code § 67-5244
    . 
    Id.
     There is
    no contention that the Idaho Transportation Board reviewed either of these letters.
    Therefore, neither letter was a recommended order that became final upon review
    by the agency head. A preliminary order can become final without review by the
    agency head, 
    Id.,
     but it must include ―a statement that the order will become a
    final order without further notice‖ and ―the actions necessary to obtain
    administrative review of the preliminary order.‖ IDAHO CODE § 67-5245(1)
    (2001). Neither of the letters contained those required statements. Therefore, they
    were not preliminary orders. Thus, no final order has been issued, nor does the
    record indicate that the ITD even complied with the hearing requirements in the
    APA.
    Id. at 114, 
    73 P.3d at 728
    . The same situation pertains here. There is no indication anywhere in
    the ―record‖ that the agency head reviewed or approved the permits or the Memorandum of
    Decision. Mr. Frew, who issued the Memorandum of Decision, is not the agency head. Neither
    the Memorandum of Decision nor the permits contain the finality statements required by the
    APA or by the AG Rules. See IDAPA 04.11.01.740. Furthermore, it should also be observed that
    the four permit and application documents are only conditional ―orders.‖ Each permit states,
    ―Permit not valid until Montana permit has been issued.‖ There is no evidence in the record that
    Montana has issued permits for the four loads.17 Thus, there is no final order in this proceeding
    and, as mentioned above, ITD has also failed to comply with the hearing requirements.
    Therefore, assuming this to be a contested case, I would concur that the case needs to be
    remanded for dismissal without prejudice so that the administrative proceedings can be
    completed in accordance with the AG Rules.
    Justice BURDICK CONCURS.
    17
    Apparently, the permits will lie dormant until such time as the state of Montana issues permits. This creates an
    interesting situation, since the Idaho permits make no provision for inclement weather conditions. If the state of
    Montana were to approve permits for the loads on January 1 of 2011, the Idaho permits would automatically become
    valid for a period of five days. Thus, ConocoPhillips/Emmert would be faced with a situation where they would
    either have to make the risky decision to proceed over snow-covered roads or allow the permits to expire upon the
    fifth day from their issuance. It is unknown why ITD made no provision for inclement weather conditions.
    21