Ken-Go Services, Inc. v. Louisiana Public Service Com'n., KEN-GO

CourtSupreme Court of Louisiana
Writing for the CourtBLANCHE; LEMMON; DENNIS; DENNIS
Citation483 So.2d 141
PartiesSERVICES, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
Docket NumberKEN-GO,No. 85-CA-1959,85-CA-1959
Decision Date24 February 1986

Page 141

483 So.2d 141
KEN-GO SERVICES, INC.
v.
LOUISIANA PUBLIC SERVICE COMMISSION.
No. 85-CA-1959.
Supreme Court of Louisiana.
Feb. 24, 1986.
Dissenting Opinion Feb. 26, 1986.

Page 142

Janet S. Boles, Monroe, for appellee-plaintiff.

Broderick C. DeJean, Opelousas, Frank T. Salter, Lake Charles, for intervenor-appellant.

Marshall B. Brinkley, Baton Rouge, for defendant-appellant.

BLANCHE, Justice.

This case involves the Louisiana Public Service Commission's grant of a certificate of public convenience and necessity to Washington Trucking and Transportation, Inc., d/b/a Hydrovac. The certificate authorizes the transportation of non-hazardous waste products, including but not limited to, water base mud, oil base mud, rig wash, and salt water from the exploration for, production of, and for refining of oil, gas and other minerals extracted from land and/or water within a sixty (60) mile radius of Lake Charles, Louisiana. After considering the testimony presented at a public hearing before a hearing officer the Commission determined that "the public convenience and necessity requires and would be materially promoted by the granting of the certificate."

The district court for the 19th Judicial District, Parish of East Baton Rouge, reversed the decision of the Commission. From reading the trial judge's reasons for judgment it appears that the district court judge felt that the Commission acted arbitrarily in issuing the certificate in light of the present depression in oilfield drilling operations.

The Louisiana Public Service Commission and Washington Trucking and Transportation, Inc. have appealed to this Court pursuant to La.Const. Art. 4, Sec. 21(E) which provides "a right of direct appeal from any judgment of the district court ... relating to any action taken by the commission."

La.R.S. 45:164 provides in part that "no new or additional certificates shall be granted over a route where there is an existing certificate unless it be clearly shown that the public convenience and necessity would be materially promoted thereby." Public convenience and necessity are not suspectable of precise definition. Florane v. Louisiana Public Service Commission, 433 So.2d 120 (La.1983); 60 C.J.S. Motor Vehicles Sec. 90(1) (1969). Rather, that which constitutes public convenience must be determined on a case by case basis. Florane, supra.

When the Commission determines that it is in the public interest to issue a certificate, that decision is to be accorded great weight and will not be overturned absent a showing that the administrative action was arbitrary and capricious. South Arkansas Vacuum Service of Louisiana, Inc. v. Louisiana Public Service Commission, 457 So.2d 655 (La.1984); Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666 (1972). A Commission's order is arbitrary

Page 143

and capricious only when the record does not and could not reasonably support its finding. Southern Arkansas Vacuum Service of Louisiana, Inc., supra; M & G Fleet Service, Inc. v. Louisiana Public Service Commission, 443 So.2d 579 (La.1983).

A comprehensive review of the testimony presented at the hearing is necessary in order to determine whether the Commission acted arbitrarily and capriciously in issuing the certificate. Scott Washington, part owner of Hydrovac, was the first witness to testify. He stated that he began operating a truck under a lease with American Vacuum Service in August of 1980. Approximately 18 months later his lease was terminated for an alleged lack of work. After unsuccessfully attempting to enter into a lease agreement with other carriers, Washington, on behalf of Hydrovac, applied for a certificate to haul both new materials to the well and waste material from the well within a one hundred (100) mile radius of Lake Charles, Louisiana. The Commission issued the certificate but was reversed by the district court. This court affirmed the reversal concluding that testimony that the applicant would provide adequate service was not sufficient standing alone to justify the issuance of a new certificate. Scotty's Vacuum Service, Inc. v. Louisiana Public Service Commission, 450 So.2d 1303 (La.1984). Before the judgment of this Court had become final, the Commission granted the certificate at issue in this case which allows Hydrovac to haul waste material from well sites within a sixty (60) mile radius of Lake Charles, Louisiana.

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11 practice notes
  • AAA Cooper Transp. v. Louisiana Public Service Com'n, 93-CA-0126
    • United States
    • Supreme Court of Louisiana
    • September 3, 1993
    ...Florane v. Louisiana Public Service Com'n, 433 So.2d 120 (La.1983); Ken-Go Services, Inc. v. Louisiana Public Service Commission, 483 So.2d 141 The Commission's order should be upheld if there is evidence that unrestricting TLC's permit would promote public convenience and necessity. M & G ......
  • Matlack, Inc. v. Louisiana Public Service Com'n, 93-CA-0277
    • United States
    • Supreme Court of Louisiana
    • May 24, 1993
    ...does not and could not reasonably support it. L & B, 602 So.2d at 714 (citing Ken-Go Services, Inc. v. Louisiana Public Service Comm'n, 483 So.2d 141 (La.1986)). Conversely, the court has a duty to reverse the LPSC's determination when it is based on an error of law or on material facts tha......
  • Mississippi Chemical Exp., Inc. v. Louisiana Public Service Com'n
    • United States
    • Supreme Court of Louisiana
    • May 23, 1994
    ...Co. v. Louisiana Public Service Comm'n, 602 So.2d 712, 714 (La.1992); Ken-Go Services, Page 99 Inc. v. Louisiana Public Service Comm'n, 483 So.2d 141, 142-43 In reviewing the LPSC's determination, it is not our role as a reviewing court to reweigh the evidence, to rejudge the credibility of......
  • CTS Enterprises, Inc. v. Louisiana Public Service Com'n, 88-CA-2061
    • United States
    • Supreme Court of Louisiana
    • March 13, 1989
    ...of a certificate is made necessary by the public convenience and necessity. Ken-Go Services, Inc. v. Louisiana Public Service Commission, 483 So.2d 141, 144 With respect to the burden of proof, it is on the applicant. This is so as to both the contract carrier (Southern Sugar Transp., Inc. ......
  • Request a trial to view additional results
11 cases
  • AAA Cooper Transp. v. Louisiana Public Service Com'n, 93-CA-0126
    • United States
    • Supreme Court of Louisiana
    • September 3, 1993
    ...Florane v. Louisiana Public Service Com'n, 433 So.2d 120 (La.1983); Ken-Go Services, Inc. v. Louisiana Public Service Commission, 483 So.2d 141 The Commission's order should be upheld if there is evidence that unrestricting TLC's permit would promote public convenience and necessity. M & G ......
  • Matlack, Inc. v. Louisiana Public Service Com'n, 93-CA-0277
    • United States
    • Supreme Court of Louisiana
    • May 24, 1993
    ...does not and could not reasonably support it. L & B, 602 So.2d at 714 (citing Ken-Go Services, Inc. v. Louisiana Public Service Comm'n, 483 So.2d 141 (La.1986)). Conversely, the court has a duty to reverse the LPSC's determination when it is based on an error of law or on material facts tha......
  • Mississippi Chemical Exp., Inc. v. Louisiana Public Service Com'n
    • United States
    • Supreme Court of Louisiana
    • May 23, 1994
    ...Co. v. Louisiana Public Service Comm'n, 602 So.2d 712, 714 (La.1992); Ken-Go Services, Page 99 Inc. v. Louisiana Public Service Comm'n, 483 So.2d 141, 142-43 In reviewing the LPSC's determination, it is not our role as a reviewing court to reweigh the evidence, to rejudge the credibility of......
  • CTS Enterprises, Inc. v. Louisiana Public Service Com'n, 88-CA-2061
    • United States
    • Supreme Court of Louisiana
    • March 13, 1989
    ...of a certificate is made necessary by the public convenience and necessity. Ken-Go Services, Inc. v. Louisiana Public Service Commission, 483 So.2d 141, 144 With respect to the burden of proof, it is on the applicant. This is so as to both the contract carrier (Southern Sugar Transp., Inc. ......
  • Request a trial to view additional results

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