G & G Trucking Co., Inc. v. Public Utilities Com'n of State of Colo.

• Citation: 745 P.2d 211
• Decision Date: 13 October 1987
• Docket Number: No. 85SA268,85SA268
• Parties: G & G TRUCKING COMPANY, INC., Plaintiff-Appellant, v. The PUBLIC UTILITIES COMMISSION OF the STATE OF COLORADO; Ashton Trucking Company; Gibson Truck Lines; and Phillips Trucking Company, Defendants- Appellees.
• Court: Colorado Supreme Court

Page 211

745 P.2d 211

G & G TRUCKING COMPANY, INC., Plaintiff-Appellant, v. The PUBLIC UTILITIES COMMISSION OF the STATE OF COLORADO;

Ashton Trucking Company; Gibson Truck Lines; and

Phillips Trucking Company, Defendants- Appellees.

No. 85SA268.

Supreme Court of Colorado,

En Banc.

Oct. 13, 1987.

As Modified on Denial of Rehearing Nov. 2, 1987.

Charles M. Williams, Lakewood, Jean Paul Jones, Alamosa, for plaintiff-appellant.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Valerie McNevin-Peterson, Asst. Atty. Gen., Denver, for defendant-appellee Public Utilities Com'n.

Thomas J. Burke, Denver, for Ashton Trucking Co., Gibson Truck Lines and Phillips Trucking Co., defendants-appellees.

QUINN, Chief Justice.

G & G Trucking, Inc. (G & G) appeals from a judgment of the district court affirming a decision by the Colorado Public Utilities Commission (PUC) that denied G & G's application for clarification or extension of its authority to operate a motor carrier business under a previously issued certificate of public convenience and necessity. ¹ Because the PUC's decision is not fatally inconsistent and is supported by substantial evidence in the record, we affirm the judgment of the district court.

I.

Since 1965 G & G has operated a motor carrier business pursuant to a certificate of public convenience and necessity. The certificate authorizes G & G, in pertinent part, to conduct "a transfer, moving and general cartage business in the counties of Alamosa, Saguache, Rio Grande, and Conejos, in the State of Colorado, ... and for occasional service throughout the State of Colorado, and in each of the counties thereof...." G & G's carrier service consists primarily of transporting livestock, petroleum products, and grains, and, to a limited extent, coal, cement, construction equipment, and other commodities.

In 1979 the PUC initiated an enforcement proceeding against G & G to prohibit it from providing transportation services beyond the scope of the occasional authority granted in the certificate. Shortly thereafter, in July of 1979, G & G filed an application with the PUC to obtain a determination as to whether the services it had been providing were beyond the scope of its occasional authority and, if so, for an extension of its occasional authority to provide for those services. G & G's application was protested by Ashton Trucking Company, Gibson Truck Lines, and Phillips Trucking Company. These trucking companies operated a carrier business under a PUC certificate and claimed that the granting of G & G's application would conflict with their certificated authority and would detrimentally affect their operations. The PUC-initiated enforcement proceeding was held in abeyance pending the final outcome of G & G's application for clarification or extension of its authority.

A hearing was conducted by a hearing examiner on G & G's application in March 1980. Documentary evidence admitted at the hearing depicted G & G's operations as being both within and without the authorized four-county area during the 1970s. Various witnesses, most of whom were livestock dealers, testified in support of G & G's application. They stated that there was a present need for these services and claimed that their businesses would be detrimentally affected if G & G were not permitted to conduct its operations on a regular basis outside the four county area.

Evidence presented before the hearing examiner showed that G & G, in attempting to provide a complete service for the four-county area, had conducted operations in and out of the area on a "regular and frequent basis." James Geiser, the manager and part-owner of G & G, testified that he believed such operations were authorized by virtue of G & G's "occasional service" authority in its certificate, were consistent with 1954 and 1955 decisions of the PUC dealing with the "occasional service" authority of other trucking companies, and were also justified by reason of the PUC's failure to take any enforcement action over the years against G & G for its operations outside the four-county area. Geiser admitted on cross-examination, however, that in the late 1960s a PUC enforcement officer had questioned him about G & G's use of its "occasional authority" and had told him to "get it more in line."

Following the hearing on G & G's application, the hearing examiner issued a decision on June 30, 1980, in which he made the following findings: G & G had been providing more than just occasional transportation service outside the four-county area and, in fact, such service was beyond the scope of its certificate; G & G relied in good faith on a PUC decision which it interpreted as permitting such operations; and there was a public need for G & G to provide this service. The hearing examiner, therefore, recommended that the PUC grant G & G's application for an extension of authority under its certificate.

The three protesting trucking companies (Ashton, Gibson, and Phillips) filed exceptions to the recommended decision, claiming that the evidence presented at the hearing did not demonstrate any public need for G & G's services beyond the occasional service authorized in its certificate. The PUC granted the exceptions and denied G & G's application in its entirety. It expressly found, in pertinent part, as follows: that G & G had been providing more than just occasional service beyond the four-county base area set forth in its certificate; that while G & G allegedly had done so in reliance on 1954 and 1955 decisions of the PUC dealing with the "occasional service" authority of two other trucking companies, the decision of the Colorado Supreme Court in Public Util. Comm'n v. Watson, 138 Colo. 108, 330 P.2d 138 (1958), eliminated any possibility that "regular service" could be authorized under "occasional service" authority; that G & G's operations in transporting various commodities on a regular basis between points outside the four county area under its "occasional service" authority were "knowingly done with respect [sic] intent to violate the law," but the evidence "does not establish that such violations were accomplished with a reckless disregard for the law"; and that G & G's unauthorized operations could not be used to establish a public need to extend its authority under its certificate.

G & G sought judicial review in the District Court of Alamosa County. During the course of the district court proceedings, the parties jointly stipulated that the PUC's decision should be reversed and the case remanded to the PUC because of some inconsistent and ambiguous language in some parts of the PUC's decision, ² and that the PUC should enter a new decision based on the evidentiary record previously made before the hearing examiner. The district court approved the stipulation and remanded the case to the PUC.

Following remand, the PUC entered findings of fact, including the following summary of G & G's intrastate operations within and without the four-county area during various years between 1970 and 1979, based on the total number of loads hauled by G & G during this period:

                      Transportation     Transportation     Transportation
                      Services Wholly   Services Either    Services Wholly
                      Within the Four  Into or Out of the  Outside the Four
                Year   Base Counties   Four Base Counties   Base Counties
                -----------------------------------------------------------
                1970              13%                 62%               25%
                1971           10.77%              72.21%            17.02%
                1972           18.48%              60.32%            21.20%
                1973           21.30%              53.65%            25.05%
                1977           27.71%              46.93%            25.36%
                1978              11%                 75%               14%
                1979             9.5%                 76%             14.5%
                

The PUC further found that during this period the PUC staff examined G & G's operations on approximately ten occasions but took no action until the enforcement proceeding was filed in 1977, and that G & G's corporate officers were familiar with the PUC's rules and regulations and would abide by these rules and regulations if G & G's application for extension of authority were to be granted. The PUC then made the following critical determinations:

1. G & G has transported the named commodities on a regular basis between Alamosa, Saguache, Rio Grande and Conejos Counties, State of Colorado, on the one hand, and all points in the State of Colorado, on the other hand.

2. G & G does not have authority under PUC Certificate No. 353 to transport the named commodities on a regular basis between Alamosa, Saguache, Rio Grande and Conejos Counties, State of Colorado, on the one hand, and all points in the State of Colorado, on the other hand.

3. By transporting the named commodities on a regular basis between Alamosa, Saguache, Rio Grande and Conejos Counties, State of Colorado, on the one hand, and all points in the State of Colorado, on the other hand, G & G has conducted unauthorized operations in reckless disregard for the law.

4. G & G's unauthorized operations conducted in reckless disregard for the law cannot be used to establish public need.

5. The competent evidence in this matter is insufficient to support the granting of the extension sought in this application and the public need does not require the granting of the extension sought herein.

6. G & G's alternative request for an extension of its existing authority to allow it to continue its unauthorized operations under its occasional portion of its authority should be denied.

G & G again sought judicial review in the district court, which affirmed the PUC decision, and this appeal followed. G & G basically claims that the PUC's decision to deny G & G's application for an extension of authority is fatally inconsistent in several particulars and that, if not inconsistent, it is nonetheless unsupported by...