Hilt Truck Line, Inc. v. U.S., No. 75-1269

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before HEANEY, WEBSTER and HENLEY; WEBSTER
• Citation: 532 F.2d 1199
• Parties: HILT TRUCK LINE, INC., a corporation, Petitioner, Midwest Coast Transport, Inc., et al., Intervenor-Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Schneider Transport, Inc., Intervenor-Respondent.
• Decision Date: 31 March 1976
• Docket Number: No. 75-1269

Page 1199

532 F.2d 1199 HILT TRUCK LINE, INC., a corporation, Petitioner,
Midwest Coast Transport, Inc., et al., Intervenor-Petitioners,
v.
UNITED STATES of America and Interstate Commerce Commission,
Respondents,
Schneider Transport, Inc., Intervenor-Respondent. No. 75-1269. United States Court of Appeals,
Eighth Circuit. Submitted Nov. 11, 1975.
Decided March 31, 1976.

Page 1200

A. J. Swanson, Lincoln, Neb., for petitioner. Stern, Harris, Feldman, Becker & Thompson, Omaha, Neb., and Peterson, Bowman, Coffman & Larsen, Lincoln, Neb., on brief for petitioner Hilt Truck Lines, Inc. and intervenors Midwest Coast Transport, Inc., Kodiak Refrigerated Lines, Inc., and Curtis, Inc.

Lawrence Frier, Atty., I. C. C., Washington, D. C., for appellees, I. C. C. and United States; Thomas E. Kauper, Asst. Atty. Gen., and John H. D. Wigger, Atty., Dept. of Justice, Fritz Kahn, Gen. Counsel, I. C. C., Washington, D. C., on brief.

Charles W. Singer, Fort Lauderdale, Fla., for intervenor-respondent Schneider Transport, Inc.; Singer, Sullivan & Smyth, P. C., Chicago, Ill., Gregory A. Stayart, Fort Lauderdale, Fla., on brief.

Before HEANEY, WEBSTER and HENLEY, Circuit Judges.

WEBSTER, Circuit Judge.

Hilt Truck Line, Inc. brings this petition for review of a final order of the Interstate Commerce Commission granting the application of Schneider Transport, Inc. for a certificate of public convenience and necessity for operating authority as a common carrier over irregular routes transporting (1) canned goods and animal feed from three states in the far west to a twenty-six state area in the midwest, mideast, and east; and (2) unfrozen dinners from certain California sites to the same designated area. See 28 U.S.C. §§ 2321 and 2342.

Schneider Transport filed its application on April 5, 1971, pursuant to 49 U.S.C. § 307. The Interstate Commerce Commission referred the proceedings to an Administrative Law Judge, and hearings were held December 6-7, 1971, and continued on December 18-19, 1972. Eight motor carriers filed an appearance in opposition to the application. ¹ The application was supported by five shippers: Topco Associates, Inc.; Hunt-Wesson Foods, Inc.; Kal Kan Foods, Inc.; North Pacific Canners & Packers, Inc.; and National Can Corporation.

Page 1201

In a report and recommended order filed May 1, 1973, the Administrative Law Judge found that public convenience and necessity required operation by Schneider Transport within the scope of the application and recommended that a certificate be granted. Exceptions were filed by several protestants and replied to by Schneider Transport. In a decision and order filed July 15, 1974, the Commission found that there was insufficient evidence to warrant the finding that the rates of regular route carriers were so expensive as to constitute an embargo against the movement of shipper traffic, but that the recommended grant of authority was otherwise warranted by the record evidence. The Commission thus affirmed and adopted as modified the findings and conclusions of the Administrative Law Judge.

Petitions for reconsideration were denied by the Commission on March 6, 1975, and a certificate of public convenience and necessity was issued to Schneider Transport on April 30, 1975. Thereafter, Hilt Truck Line initiated this petition for review, contending that the order of the Commission was based on findings of fact which were inadequate and unsupported by evidence in the record, and that the Commission thus erred in finding (1) that the need for the proposed service was adequately demonstrated by the supporting shippers, (2) that the existing service of the regular and irregular route carriers was inadequate to fulfill the needs of the supporting shippers, and (3) that no impairment of the operation of existing carriers contrary to the public interest would result from the grant of authority. ² We disagree and therefore affirm the decision of the Interstate Commerce Commission.

Evaluation of the present and future public convenience and necessity is a matter for the sound judgment and discretion of the Interstate Commerce Commission. See Interstate Commerce Commission v. Parker, 326 U.S. 60, 65, 65 S.Ct. 1490, 1492, 89 L.Ed. 2051, 2058 (1945); McLean Trucking Co. v. United States, 321 U.S. 67, 87-88, 64 S.Ct. 370, 380, 88 L.Ed. 544, 556 (1944). Accordingly, this Court has recognized that the recent amendment of28 U.S.C. § 2321 ³ does not alter the limited scope of review of Commission orders:

In this circuit a petition for review of a Commission's order will be denied on a summary basis when the order is based on the evidence and supported by a rational judgment of the Commission. This does not mean that this court will fail in its obligation to review thoroughly every record to ascertain that evidence as a whole supports the Commission's findings and that the proper legal standards have been applied.

Warren Transport, Inc. v. United States, 525 F.2d 148, 151 (8th Cir. 1975). Assessing the instant petition for review under this standard, we find little merit to the contentions of the petitioners.

The guidelines governing an application for a certificate of public convenience and necessity were promulgated by the Commission in Pan-American Bus Lines Operation, 1 M.C.C. 190, 203 (1936):

The question, in substance, is whether the new operation or service will serve a useful public purpose, responsive to a public demand or need; whether this purpose can and will be served as well by existing lines or carriers; and whether it can be served by applicant with the new operation or service proposed without endangering or impairing the operations of existing carriers contrary to the public interest.

See Warren Transport, Inc. v. United States, supra, 525 F.2d at 149; Artus Trucking Co. v. Interstate...