C. A. White Trucking Co. v. U.S.
| Decision Date | 15 July 1977 |
| Docket Number | No. 75-4421,75-4421 |
| Citation | 555 F.2d 1260 |
| Parties | C. A. WHITE TRUCKING COMPANY, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Bernard H. English, Lloyd Scurlock, Clayte Binion, Ft. Worth, Tex., for petitioner.
Fritz R. Kahn, Gen. Counsel, ICC, Washington, D. C., Edward H. Levi, U. S. Atty. Gen., U. S. Dept. of Justice, Thomas E. Kauper, Asst. Atty. Gen., Robert Lewis Thompson, Atty., Interstate Commerce Commission, Carl D. Lawson, Dept. of Justice, Asst. Chief, Appellate Section, Arthur J. Cerra, Gen. Counsel, Washington, D. C., for respondents.
Petition for Review of an Order of the Interstate Commerce Commission (Texas Case).
Before GODBOLD, TJOFLAT and HILL, Circuit Judges.
This is a "gateway elimination" case. 1 Petitioner, C. A. White Trucking Company, is an irregular route common carrier for the transportation of machinery, equipment, materials and supplies used in the oil and gas industry. Petitioner seeks review of an order of the Interstate Commerce Commission (ICC) denying its application to eliminate two gateways. We affirm.
Petitioner was authorized under various certificates to transport oil field commodities (1) between points in Texas and those in Lea and Eddy Counties, New Mexico, on the one hand, and, on the other, points in Arkansas and Illinois, through gateways in Seminole and Potawatomie Counties, Oklahoma, and (2) between points in Kansas, on the one hand, and, on the other, points in Colorado, Montana, Utah and Wyoming, through gateway points in Texas. In its "gateway elimination" application petitioner sought to eliminate the gateways in Seminole and Potawatomie Counties, Oklahoma and the gateway points in Texas. In essence petitioner sought authority to transport directly between points in Texas and Lea and Eddy Counties, New Mexico, on the one hand, and, on the other, points in Arkansas and Illinois and between points in Kansas, on the one hand, and, on the other, points in Colorado, Montana, Utah, and Wyoming.
In support of its application, petitioner submitted a list of representative shipments transported from January 22, 1972, to May, 1974. Under the ICC's gateway elimination regulations, 49 C.F.R. § 1065.1, only 32 of these representative shipments were considered relevant to a determination of the application. 2 Of these 32 shipments, 27 were from points in Texas to Arkansas; 4 occurred between Texas and Illinois; and 1 shipment was between Arkansas and Texas. Petitioner listed no shipments from Illinois to Texas or New Mexico and no shipments were listed from New Mexico to Arkansas or Illinois, or from Arkansas to New Mexico. Petitioner also presented statements by shippers to the effect that they had used petitioner's services in the past; that they had found the services to be reliable; and that they expected to use petitioner's services in the future.
Only one protestant filed a verified statement in opposition to petitioner's application. 3 This protestant, B. F. Walker, Inc., showed that between January and March, 1975, it had transported 16 truckloads (4 shipments) from points in Texas to Illinois, 17 truckloads (6 shipments) from points in Texas to Arkansas, 2 truckloads (2 shipments) from points in New Mexico to Illinois, 9 truckloads (5 shipments) from points in Arkansas to Texas, and 8 truckloads (6 shipments) from points in Illinois to Texas. The ICC explicitly took note of protestant's shipments from Texas to Arkansas but concluded that protestant's evidence was entitled to little weight since it failed to specify the origin or destination points and failed to indicate the proportion of traffic that might be diverted by any grant of authority to petitioner.
On the basis of the evidence before it, ICC Review Board No. 1 determined that petitioner had been "transporting substantial traffic" from Houston, Lone Star, Lufkin, and Uvalde, Texas to destinations in Arkansas. As to the remaining portion of the application to eliminate Seminole and Potawatomie Counties, Oklahoma, the ICC determined that petitioner had failed to establish that it had been an effective competitor. In addition, the ICC determined that petitioner had failed to demonstrate the inadequacies of existing services and, thus, did not establish a public need for its service.
As to petitioner's attempt to eliminate the gateway of points in Texas, the ICC determined that petitioner's traffic was not sufficient to establish it as an effective competitor and that its evidence was insufficient demonstration of a public need for the authority which it sought.
On motion for reconsideration, ICC Division I, acting as an appellate division, deleted the authority granted to petitioner to transport from Uvalde, Texas to points in Arkansas. ICC Division I noted that petitioner's traffic from Uvalde was destined for Illinois rather than Arkansas. Thus, because petitioner had failed to demonstrate that it had transported a substantial amount of traffic from Uvalde to Arkansas, ICC Division I modified the earlier order to delete the origin point of Uvalde, Texas. In all other respects, the findings of Review Board No. I were affirmed.
Petitioner first contends that the ICC erred in failing to grant it statewide or areawide authority to make pickups in Texas, because the ICC agreed to follow "grandfather" procedures 4 in gateway elimination cases and in "grandfather" cases statewide or areawide authority has been granted to specialized carriers of oil field equipment. The ICC gateway elimination regulations provide that applications "will be processed in accordance with the normal procedures of the Interstate Commerce Commission as modified in the Federal Register publication of a notice of the filing of such applications (which shall reflect the procedure outlined in the Commission's report and order in Gateway Elimination, 119 M.C.C. 530)." 49 C.F.R. § 1065.1(d)(2) (iv). The Gateway Elimination case referred to in the regulation, Motor Common Carriers of Property, Routes and Service, 119 M.C.C. 530 (1974), stated that in judging whether elimination of a specific gateway would be permitted, no greater burden of proof would be imposed "than that governing regular elimination of gateway applications, but will be somewhat more akin to the standard 'grandfather' procedures utilized by this Commission in the past." Id. at 550. Based upon this analogy, petitioner contends that it was error for the ICC to grant less than statewide or areawide authority from Texas to Arkansas.
The analogy to the grandfather cases in gateway elimination cases has very recently been rejected by this court in Refrigerated Transport Company, Inc. v. Interstate Commerce Commission, supra.
This burden of proof proviso is not a mandate that every carrier then utilizing gateways or tacking will be entitled either to continue or get gateway elimination benefits. The Gateway Rulemaking case and the public interest in resolving the energy crisis which compelled gateway rules indicate that the use of circuitous routes must stop. The normal grandfather considerations for continuing past practices are antithetical to the purpose of these rules and grandfather protection was correctly rejected by the Commission.
We, likewise, reject the notion that the nature of petitioner's operations entitle it to some type of "grandfather" consideration.
In the...
To continue reading
Request your trial
-
State of La., ex rel. Guste v. Verity
...standard, however, is very narrow. 8 The court is not to weigh the evidence in the record pro and con. C.A. White Trucking Co. v. United States, 555 F.2d 1260, 1264 (5th Cir.1977). Rather, our role is to review the agency action to determine whether the decision "was based on a consideratio......
-
Smith v. RI ST. SERV. FOR BLIND & VIS. HANDICAPPED, Civ. A. No. 83-0292 S.
...606 F.2d 1131, 1141 (D.C.Cir.1979); cert. denied, 444 U.S. 1073, 100 S.Ct. 1019, 62 L.Ed.2d 755 (1980); C.A. White Trucking Co. v. United States, 555 F.2d 1260, 1264 (5th Cir.1977); Grand Islander, 573 F.Supp. at 412. Accordingly, "administrative action may be regarded as arbitrary and capr......
-
Tengasco, Inc. v. Jewell
...on the basis of the record before the agency at the time that it made its decision. Id. at 327 (citing C.A. White Trucking Co. v. United States, 555 F.2d 1260, 1264 (5th Cir. 1977)).The Substantial Evidence Requirement The "scope of review" provisions of the APA, 5 U.S.C. § 706(2), are cumu......
-
Creppel v. U.S. Army Corps of Engineers
...same conclusion is of no consequence, for Congress has imparted this decision to the Corps of Engineers. C.A. White Trucking Co. v. United States, 555 F.2d 1260, 1264 (5th Cir. 1977) (the court of appeals does "not sit as a trier of fact" and it is not its function "to weigh the evidence pr......