Big Diamond Truck Service, Inc. v. Louisiana Public Service Com'n

• Decision Date: 11 December 1989
• Docket Number: No. 89-CA-1397,89-CA-1397
• Citation: 553 So.2d 431
• Parties: BIG DIAMOND TRUCK SERVICE, INC., et al v. LOUISIANA PUBLIC SERVICE COMMISSION.
• Court: Louisiana Supreme Court

Page 431

553 So.2d 431

BIG DIAMOND TRUCK SERVICE, INC., et al v. LOUISIANA PUBLIC SERVICE COMMISSION.

No. 89-CA-1397.

Supreme Court of Louisiana.

Dec. 11, 1989.

Janet S. Boles, Boles, Boles & Ryan, Baton Rouge, for plaintiff-appellant.

Robert L. Rieger, Jr., Baton Rouge, for defendant-appellant.

J.B. Jones, Jr., Jones, Jones & Alexander, Cameron, Dennis J. Hauge, and John W. Barton, Jr., Breazeale, Sachse & Wilson, Baton Rouge, for intervenor-appellant.

CALOGERO, Justice.

In these reciprocal appeals by the common carrier applicant Roy Bailey Construction, Inc. and the Louisiana Public Service Commission on the one hand, and Big Diamond Truck Service, Inc. and additional opponents on the other, we review a district court judgment partially favorable and partially unfavorable to Bailey regarding certification of public convenience and necessity granted by the Louisiana Public Service Commission. For the reasons which follow, we conclude that the Commission had no reasonable basis for granting Bailey certificates of public convenience and necessity authorizing either transportation of oilfield waste, or general oilfield hauling.

Roy Bailey Construction, Inc. applied to the Louisiana Public Service Commission for common carrier certificates authorizing transportation of 1) oilfield waste including salt water, ¹ and 2) general oilfield hauling including hot shot services, each over irregular routes, statewide. The case was heard by an examiner on May 23, 1988, during which hearing Bailey agreed to an amendment to its application which restricted against the transportation of hazardous wastes.

Bailey's application was opposed by numerous competing carriers with existing certificates. However, the Commission approved Bailey's applications finding that they materially promoted the public convenience and necessity. Louisiana Public Service Commission Order No. T-17917, June 14, 1988. Big Diamond Truck Services, Inc. and other common carrier oilfield haulers and common carriers of oilfield waste appealed the Commission's order, and Bailey intervened. The Nineteenth Judicial District Court remanded to the Commission for written reasons for its order. After receiving and reviewing the Commission's reasons, the district court judge found that the public convenience and necessity would be materially promoted by granting Bailey authority for transporting oilfield waste. However, the court held that not enough evidence was presented to show a need for the certificate for general oilfield hauling authority and reversed the Commission's order in this respect. Big Diamond and other carriers with existing certificates appealed to this Court that portion of the judgment affirming the Commission's grant of a certificate for transportation of oilfield wastes; the Commission and Bailey appealed that portion of the judgment reversing the Commission's grant of a certificate for general oilfield hauling. La.Const.Art. 4 Sec. 21(E).

Louisiana law provides that a motor carrier may not operate as a common carrier without obtaining from the Commission a ruling or order that public convenience and necessity require the issuance of a certificate. Additionally, if a new or additional certificate is to be granted to a carrier over a route where an existing certificate already exists, then the applicant must clearly show that the public convenience and necessity would be materially promoted thereby. La.R.S. 45:164.

In several recent decisions, this Court has addressed the principles of "public convenience and necessity" as well as the burdens of proof and standard of review in these matters. See Louisiana Tank Truck Carriers, Inc. v. Louisiana Public Service Commission, 549 So.2d 850 (La.1989); A-1 Moving & Storage, Inc. v. Louisiana Public Service Commission, 548 So.2d 934 (La.1989); CTS Enterprises v. Louisiana Public Service Commission, 540 So.2d 275 (La.1989); Miller Transporters, Inc. v. Louisiana Public Service Commission, 518 So.2d 1018 (La.1988). Although not defined by statute, several criteria have been established jurisprudentially regarding public convenience and necessity: whether the new service will serve a useful public purpose; whether that purpose cannot or will not be served by other existing carriers; whether the applicant's service will hurt the operations of existing carriers; and whether the applicant's service will endanger highway users or the safety of the roads. Louisiana Tank Truck, 549 So.2d at 854-55; A-1 Moving & Storage, 548 So.2d at 935; CTS, 540 So.2d at 281; Miller, 518 So.2d at 1020. In weighing these criteria, the Commission must balance the improvement which the new service will provide with the cost of making the improvement. CTS, 540 So.2d at 281; Miller, 518 So.2d at 1019. Furthermore, "public convenience and necessity" refers to the entire public affected by the new certificate rather than to an individual or number of individuals. Louisiana Tank Truck, 549 So.2d at 854; Miller, 518 So.2d at 1019.

The applicant in an area already serviced by certificated carriers bears a heavy burden, that of proving that the public convenience and necessity will be materially promoted by the issuance of a certificate. And he must meet that burden by proving specific facts rather than making general conclusory statements. La.R.S. 45:164; Louisiana Tank Truck, 549 So.2d at 853-54; CTS, 540 So.2d at 280-81; Miller, 518 So.2d at 1020; Scotty's Vacuum Service, Inc. v. Louisiana Public Service Commission, 450 So.2d 1303 (La.1984); Florane v. Louisiana Public Service Commission, 433 So.2d 120 (La.1983). On review, a court will not upset the Commission's issuance of a certificate unless it was based on an error of law or unless the Commission's finding was not reasonably based on the evidence. Louisiana Tank Truck, 549 So.2d at 853; CTS, 540 So.2d at 277-78; Miller, 518 So.2d at 1020. Therefore, in considering the case before us, we will determine whether the Commission, on the evidence before it, could reasonably have decided that the grant of Bailey's certificates for general oilfield hauling and for transporting oilfield wastes was in the public interest, and whether the district court erred either in affirming the grant of authority for transporting oilfield waste or in reversing the grant for general oilfield hauling.

In order to prove public convenience and necessity, Bailey had to prove that his certification would serve a useful public purpose; that that purpose could not or would not be served by other existing carriers; that his operation would not hurt the operations of other carriers; and that his service would not endanger highway users or the safety of the road. Furthermore, he had to prove these criteria for each certificate he sought from the Commission.

At the hearing, Bailey attempted to prove that his new service in hauling saltwater and other oilfield wastes would serve a useful public purpose that could not be served by other existing carriers. He testified, as did his six shipper witnesses, that no carrier with a terminal in Cameron Parish was authorized to transport oilfield waste. Therefore, grant of authority to Bailey would serve a useful public purpose in two ways: his trucks operating out of Creole, Louisiana would be closer to the oil wells in lower Cameron Parish in case of an emergency, and his service, based nearby, would reduce transportation costs.

Robert Mudd and Lee Harrison testified that they believed that Bailey's service would be less expensive since other carriers had to come from Lake Charles and Abbeville. John Crain testified that although drilling for new wells had decreased, some needs for vacuum trucks in the parish had increased, because drillers were working old wells which produced more salt water than new wells. However, no witness offered any figures showing mileage and costs comparing Bailey's proposed service with existing services. All witnesses agreed that Cameron Parish had no disposal sites, so that Bailey's trucks would have to go to Belle City or Mermentau to dispose of the salt water and other wastes, and several shippers admitted to knowing of vacuum truck carriers located in Cameron Parish. Competing carriers testified that since Bailey's service would be subject to the same portal-to-portal rates to which they were subject, and since he would have to go out of parish to dispose...