May Trucking Co. v. U.S., 76-2068

• Decision Date: 07 February 1979
• Docket Number: No. 76-2068,76-2068
• Citation: 193 U.S.App.D.C. 195,593 F.2d 1349
• Parties: MAY TRUCKING COMPANY, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, Anthony G. Ayala, d/b/a Queen City Trucking, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1349

593 F.2d 1349

193 U.S.App.D.C. 195

MAY TRUCKING COMPANY, Petitioner, v. UNITED STATES of America and Interstate Commerce Commission,

Respondents,

Anthony G. Ayala, d/b/a Queen City Trucking, Intervenor.

No. 76-2068.

United States Court of Appeals,

District of Columbia Circuit.

Argued Jan. 25, 1978.

Decided Feb. 7, 1979.

J. Michael Alexander, Salem, Or., for petitioner.

Carl E. Howe, Jr., Atty., I.C.C., Washington, D. C., with whom Mark L. Evans, Gen. Counsel, Robert S. Buck, Deputy Gen. Counsel, I.C.C., and Robert B. Nicholson, Atty., Dept. of Justice, Washington, D. C., were on brief, for respondent.

Ronald P. Erickson, Seattle, Wash., was on brief, for intervenor.

Before ROBINSON, ROBB and WILKEY, Circuit Judges.

Opinion for the Court filed by Spottswood W. Robinson, III, Circuit Judge.

Spottswood W. Robinson, III, Circuit Judge:

May Trucking Company, the petitioner, challenges the grant by the Interstate Commerce Commission of a certificate of public convenience and necessity authorizing motor carrier operations by Anthony G. Ayala, the intervenor. ¹ Two of May's contentions give us little pause, ² but its remaining claim that the Commission's decision is unsupported by substantial evidence warrants somewhat extended comment. Our review ultimately persuades us that the Commission's action has sufficient foundation in the record, and accordingly must be upheld.

I

Ayala sought authority to carry specified commodities between points in Idaho, Montana, Oregon and Washington. May and fourteen other carriers noted their opposition, and the ensuing litigation has taken a normal course. The applicant, supporting shippers and the protesting carriers presented evidence at five days of hearings. The administrative law judge presiding rendered an initial decision in favor of Ayala, ³ to which the opposing parties filed exceptions. The Commission entered an order affirming essentially on the basis of the judge's opinion, ⁴ and subsequently denied petitions for reconsideration. ⁵

The administrative law judge and the Commission successively narrowed the scope of Ayala's certificate with respect to the commodities and territory involved. In the end, Ayala obtained authority to carry iron and steel products from Seattle, Tacoma and Portland to Spokane and points in Idaho and Montana; scrap metal from points in Idaho and Montana to Seattle, Tacoma and Portland; and hides from points in Montana to Seattle, Tacoma and Portland, as well as from points in Idaho except Nampa and Caldwell, to Seattle and Tacoma. ⁶

May challenges the grant insofar as it permits the hauling of iron and steel products from Portland to points in southern Idaho ⁷ and scrap metal from southern Idaho to Portland and Seattle. ⁸ May contends primarily ⁹ that the evidence does not sufficiently indicate that Ayala's operations in those areas would serve the public convenience and necessity, and would do so without grave injury to May. We discuss these complaints seriatum.

II

To garner our approval, the Commission's decision must be supported by substantial evidence. ¹⁰ That can be "something less than the weight of the evidence," ¹¹ but the bare minimum is " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " ¹² Beyond that, the decision must be neither "arbitrary, capricious, (nor) an abuse of discretion." ¹³ Mindful of these guiding premises, we turn to examine the evidentiary foundation of the Commission's decision. The Commission's guidelines for a prima facie case ¹⁴ summon the applicant to prove a public need for the proposed new service that existing carriers do not meet. ¹⁵ This is usually accomplished through evidence supplied by supporting shippers. ¹⁶ Of particular relevance here is the Commission's insistence that shippers have reasonably thorough knowledge of the capabilities of those carriers, ¹⁷ and that the evidence support the sought-after authority in all of its breadth. ¹⁸ On the other hand, there is no requirement that data on need and benefit be gathered for every village and hamlet in the area of proposed operations before a certificate of such encompassing scope may be awarded. Were it otherwise, certificates would be cumbersome and perhaps confusing; carriers often could not assure themselves of the economy of full loads and backhauls; and the Commission would be denied the normally reasonable inference that what is true for a fair sampling of localities is probably true for most. Thus, all that is required is evidence portraying the situation at a representative number of points. ¹⁹

Ayala's presentation focused on asserted inadequacies of the service furnished by existing carriers in particular, unacceptable delays and carrier disinclination to haul scrap metal because of accompanying damage to their equipment. The evidence certainly indicated that, ²⁰ and tended also to show that Ayala could provide service free from those deficiencies. ²¹ Ayala had operated for a time under temporary authority ²² and his customers, of course, had enjoyed an opportunity to assess his performance. The administrative law judge found that Ayala "ha(d) provided excellent service for the shippers supporting (his) application, a service which insofar as these shippers collectively are concerned is markedly superior to the services offered by protestants." ²³ Our independent review of the record convinces us that the judge had heard enough to justify that overall conclusion.

III

May argues, with considerable cogency, that while the data supplied by shippers supporting Ayala would have warranted approval of additional carriage to and from northern Idaho, the evidence is too sparse to sustain that outcome for southern Idaho.

We are satisfied, however, that there was substantial evidence to support the validity of the administrative law judge's generalization for southern Idaho as well as for other parts of the area certificated. To be sure, May has operating authority for southern but not northern Idaho, and thus an inference of need for service in southern Idaho exclusively from proof of deficient service in northern Idaho might be hazardously speculative. It must be remembered, however, that in fashioning operating authorities the Commission has to chart boundaries, a matter involving numerous practical considerations. This kind of linedrawing is to be left to the agency's judgment unless "patently unreasonable." ²⁴ What was necessary here, but all that was necessary, was enough of a presentation specifically related to points in southern Idaho to enable an informed decision by the Commission on Ayala's request to serve that area. ²⁵ That, we think, was made.

To begin with, many of the carriers whose service in northern Idaho plainly was indicted also operated in the remainder of the state. It would not surpass reason to presume that their performance did not vary dramatically with a change in latitude. More importantly, this is not a case in which operating authority is extended over large territories without a shred of direct supporting evidence. ²⁶ Under his temporary operating authority Ayala had served southern Idaho, as well as other areas, and there were shippers who spoke to the situation there. ²⁷ Some of their testimony specifically attacked existing trucking service in southern Idaho, including that furnished by May.

Sternoff Metals ships scrap primarily out of the Idaho panhandle. Sternoff attempts, however, to purchase that type of cargo all over the state, and it has had isolated shipments out of the south. ²⁸ Sternoff tried to obtain service from May and one other carrier, but neither compared favorably to Ayala. ²⁹ Sternoff declared that with Ayala available it would be willing and able to develop the southern market further. ³⁰

Sentry Automatic Sprinkler Company likewise was dissatisfied with the service available for shipment of its unassembled firesprinkler systems ³¹ from Tacoma to points in southern as well as northern Idaho. ³² May argues that this evidence is infirm because Sentry had not tried all of the truckers already certificated. Other evidence discloses, however, that Sentry had utilized a total of six carriers and was familiar with two others, but found their service deficient because of Sentry's need for fast and certain delivery. ³³ Besides, we cannot subscribe to May's legal premise in this regard. A supporting shipper need not have had experience with every carrier already on the scene. It is essential only that the sum of the evidence indicate persuasively that existing carriers are unable or unwilling to provide the kind or level of service desired. ³⁴

Pacific Hide & Fur Company, a shipper of scrap metal, has among its principal sources Nampa and Salmon, two towns in southern Idaho. ³⁵ The company had a hard time finding satisfactory carriage for its scrap, but was quite pleased with Ayala. ³⁶ The spokesman for Pacific Hide had little knowledge of much of his company's traffic, ³⁷ and little specific information on what carriers, other than one, had been tried. ³⁸ But it cannot be gainsaid that he espoused Pacific Hide's general opinion on its needs.

Similarly, Myers Pacific ships iron and steel products from Seattle and Portland to Idaho. Regular shipments are made to Pocatello, in southern Idaho. ³⁹ There was a witness from its Seattle office, but southern Idaho is served by Portland, ⁴⁰ and this witness had only meager personal knowledge of service problems to the south. ⁴¹ He was, however, able to testify that the service Myers Pacific had received from a number of existing carries was unacceptable, and that his company believed Ayala would usher in an era of substantial improvement. ⁴²

In short, while the evidence of need for and expected benefit from Ayala's proposed service in southern Idaho was far from compelling, it sufficed to support the Commission's decision on that score. Despite its weakness, we regard it as such that ...