C. A. White Trucking Co. v. U.S., No. 75-4421

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore GODBOLD, TJOFLAT and HILL; JAMES C. HILL
Citation555 F.2d 1260
PartiesC. A. WHITE TRUCKING COMPANY, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents.
Docket NumberNo. 75-4421
Decision Date15 July 1977

Page 1260

555 F.2d 1260
C. A. WHITE TRUCKING COMPANY, Petitioner,
v.
UNITED STATES of America and Interstate Commerce Commission,
Respondents.
No. 75-4421.
United States Court of Appeals,
Fifth Circuit.
July 15, 1977.

Page 1261

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.

JAMES C. HILL, Circuit Judge:

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

Page 1262

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...

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8 practice notes
  • State of La., ex rel. Guste v. Verity, No. 88-3185
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 15, 1988
    ...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 consideration of the r......
  • Smith v. RI ST. SERV. FOR BLIND & VIS. HANDICAPPED, Civ. A. No. 83-0292 S.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • March 2, 1984
    ...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 capricious on......
  • Tengasco, Inc. v. Jewell, CIVIL ACTION NO. 14-2184 SECTION "B"(2)
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • July 14, 2015
    ...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)).Page 14The 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, No. 80-3743
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 17, 1982
    ...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 pro and The record......
  • Request a trial to view additional results
8 cases
  • State of La., ex rel. Guste v. Verity, No. 88-3185
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 15, 1988
    ...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 consideration of the r......
  • Smith v. RI ST. SERV. FOR BLIND & VIS. HANDICAPPED, Civ. A. No. 83-0292 S.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • March 2, 1984
    ...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 capricious on......
  • Tengasco, Inc. v. Jewell, CIVIL ACTION NO. 14-2184 SECTION "B"(2)
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • July 14, 2015
    ...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)).Page 14The 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, No. 80-3743
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 17, 1982
    ...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 pro and The record......
  • Request a trial to view additional results

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