Erickson Transport Corp. v. I.C.C., 83-2435

• Decision Date: 24 August 1984
• Docket Number: No. 83-2435,83-2435
• Citation: 741 F.2d 1096
• Parties: ERICKSON TRANSPORT CORPORATION, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1096

741 F.2d 1096

ERICKSON TRANSPORT CORPORATION, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America,

Respondents.

No. 83-2435.

United States Court of Appeals,

Eighth Circuit.

Submitted April 10, 1984.

Decided Aug. 24, 1984.

John E. Jandera, Jandera, Gregg & Barker, Topeka, Kan., for Erickson Transport Corp.

J. Paul McGrath, Asst. Atty. Gen., Robert B. Nicholson, Marion L. Jetton, Attys., Dept. of Justice, Washington, D.C., John Broadley, Gen. Counsel, Ellen D. Hanson, Associate Gen. Counsel, Essie F. Stevens, Atty., I.C.C., Washington, D.C., for respondents.

Before ROSS, ARNOLD and FAGG, Circuit Judges.

ARNOLD, Circuit Judge.

The Interstate Commerce Commission has granted authority to Trucking Service, Inc. (Trucking), a motor common carrier, to transport alcoholic liquors either in bulk (tank truck) or non-bulk (bottled) form, between points in the contiguous 48 states. Erickson Transport Corporation petitions for review of this order. It contends that the Commission erred in granting bulk authority as well as non-bulk, and that it was error to grant Trucking the right to ship throughout the contiguous states, instead of limiting the authority to selected states specifically mentioned in the evidence.

Our recent decision in Erickson Transport Corp. v. Interstate Commerce Commission, 737 F.2d 775 (8th Cir.1984), governs the first issue and requires us to vacate the ICC's order and remand for the issuance of authority restricted to non-bulk hauling. The geographical issue then becomes moot, because Trucking already has the authority, under another permit, to transport alcoholic liquors throughout the 48 contiguous states in non-bulk form.

I.

Trucking is a Delaware corporation located in Carlinville, Illinois. It owns 48 van trailers, 2 drop flat trailers, 51 flat beds, and several refrigerated vans. At the time of its application, it had no equipment for bulk transportation of alcohol, i.e., tank trucks, cleaning machines, and so forth. The Commission took judicial notice of the fact that Trucking is "a large carrier operating under numerous pieces of authority throughout a broad territorial area" and that "[c]ertain portions of its authority are ... nationwide." Trucking Serv., Inc., Extension--Alcoholic Beverages, No. MC-128837 (Sub-No. 52) (ICC Sept. 8, 1983), slip op. 4. Trucking's application was supported by W.A. Taylor and Co., a wholly owned subsidiary of Hiram Walker. Taylor sells and distributes alcoholic beverages. Taylor cited nine representative origin and destination points in five states (New Jersey, Illinois, Kentucky, Ohio, and Louisiana) and projected that it would tender up to 10 non-bulk truckloads monthly, each weighing about 40,000 pounds.

Trucking did not ask for bulk authority, but the Commission granted it anyway. The Commission has taken the position that under the Motor Carrier Act of 1980, 49 U.S.C. Sec. 10922(b)(1) (Supp. V 1981), it will automatically issue bulk authority whenever non-bulk authority is granted for a specific commodity. Erickson, which protested Trucking's application before the Commission, now brings this petition for review. Trucking has not intervened in support of its permit.

II.

Our holding in Erickson Transport Corp. v. Interstate Commerce Commission, supra, is controlling. There, we noted that the Motor Carrier Act of 1980, 49 U.S.C. Sec. 10922(b)(1)(A) (Supp. V 1981), provides that a certificate of public convenience and necessity for motor transportation may be issued only if the Commission finds that the applicant, here Trucking, is "fit, willing, and able to provide the transportation to be authorized." We went on to hold that the Commission must find, on the basis of evidence in the record, that an applicant desiring non-bulk authority is fit, willing, and able to provide bulk transportation also, if bulk authority is to be granted. The applicant bears the initial burden of establishing these facts, and a desire on the part of an applicant to transport a specific commodity in non-bulk form is not sufficient to establish that the applicant is fit, willing, and able to transport the same commodity in bulk form. Here, there is no evidence that Trucking has any intention of hauling whiskey in tank trucks, or that it has or intends to acquire the necessary equipment. Our Erickson opinion requires, therefore, that the ICC's order granting Trucking's permit be vacated, and the case remanded to the Commission with directions to restrict Trucking's authority to non-bulk hauling. See also Port Norris Express Co. v. Interstate Commerce Commission, 729 F.2d 204, 208 (3d Cir.1984), a clear holding to the same effect, cited with approval by us in Erickson.

III.

It remains to consider Erickson's contention that the permit granted Trucking here should also have been limited geographically. Our holding that bulk authority was unlawfully granted makes this issue moot, because Trucking has another ICC permit, the existence and validity of which are not in issue, authorizing it to transport general commodities, including alcoholic liquors, in the contiguous 48 states in non-bulk form. Respondents' brief, p. 5 n. 4, which is not contradicted on this point by Erickson, states as follows:

After applying for the authority in this case (but before the final Commission decision under review here), Trucking Service sought and obtained authority to transport general commodities (except classes A and B explosives, household goods and commodities in bulk) nationwide (except Alaska and Hawaii), in No. MC-128837 (Sub-No. 54) (Certificate issued December 9, 1982). That certificate encompasses and supersedes all but the bulk portion of the authority involved here.

See also the Commission's decision below, slip op. 4 n. 2; Brief for Respondents 25 n. 14.

Thus, the bulk authority having been stricken...