Power Fuels, Inc. v. Elkin

• Decision Date: 22 August 1979
• Docket Number: No. 9588,9588
• Citation: 283 N.W.2d 214
• Parties: Application of Power Fuels, Inc., Minot, North Dakota, for a Special Certificate of Public Convenience and Necessity. POWER FUELS, INC., Applicant (Respondent Below) and Appellee, v. Richard ELKIN, Ben Wolf, and Bruce Hagen, as Members of the North Dakota Public Service Commission, Respondents (Respondents Below) and Appellees, and Northern Tank Lines and Big "M" Oil Field Service, Inc., Protestants, and Getter Trucking, Inc., Protestant (Appellant Below), and Matador Service, Inc., Protestant (Appellant Below) and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 214

283 N.W.2d 214

Application of Power Fuels, Inc., Minot, North Dakota, for a

Special Certificate of Public Convenience and Necessity.

POWER FUELS, INC., Applicant (Respondent Below) and Appellee, v. Richard ELKIN, Ben Wolf, and Bruce Hagen, as Members of the

North Dakota Public Service Commission,

Respondents (Respondents Below) and Appellees,

and

Northern Tank Lines and Big "M" Oil Field Service, Inc., Protestants,

and

Getter Trucking, Inc., Protestant (Appellant Below),

and

Matador Service, Inc., Protestant (Appellant Below) and Appellant.

Civ. No. 9588.

Supreme Court of North Dakota.

Aug. 22, 1979.

F. John Smith, Bismarck, for applicant (respondent below) and appellee Power Fuels, Inc.

David W. Tiistola, Sp. Asst. Atty. Gen., Bismarck, for respondents (respondents below) and appellees Elkin, Wolf and Hagen as Members of the North Dakota Public Service Commission.

R. W. Wheeler of Wheeler, Wolf, Wefald & Peterson, Bismarck, for protestant (appellant below) and appellant Matador Service, Inc.

VANDE WALLE, Justice.

This is an appeal from a judgment of the district court of Burleigh County affirming an order of the Public Service Commission that granted Power Fuels, Inc., a special common motor carrier certificate of public convenience and necessity authorizing it to transport crude oil, water, and salt water, in bulk, in tank vehicles to and from certain points and places in North Dakota. We affirm.

In March 1977, Power Fuels, Inc. ("Power Fuels"), filed an application with the Public Service Commission ("PSC") seeking a special common motor-carrier certificate of public convenience and necessity authorizing it to transport crude oil, water, and salt water, in bulk, in tank vehicles to, from, and between all points and places in North Dakota lying west of a line defined in the application. Getter Trucking, Inc. ("Getter"), Matador Service, Inc. ("Matador"), Big "M" Oil Field Services, Inc. ("Big 'M' "), and Northern Tank Lines ("Northern Tank") special common motor carriers holding authority to provide all, or a part of, the transportation service proposed in the application protested the application.

In April 1977, Power Fuels filed an application for temporary authority to provide service until such time as the application could be heard and determined by the PSC. The PSC granted temporary authority on April 12, 1977, and notified Power Fuels on May 20, 1977, that it had met all necessary "compliances" and could initiate operations. Temporary authority was granted to Power Fuels pursuant to Section 49-18-12, N.D.C.C. ¹

The hearing on the application for permanent authority was held on September 8, 1977. On November 25, 1977, the PSC issued its findings of fact, conclusions of law, and order granting Power Fuels the special certificate of convenience and necessity. Getter and Matador appealed to the district court of Burleigh County. On May 25, 1978, the district court remanded the case to the PSC with the direction that the PSC make proper findings of fact and that, after the PSC had issued proper findings of fact, the matter be returned to the district court for review. On July 6, 1978, the PSC entered its amended findings of fact, conclusions of law, and order and returned the matter to the district court. The district court, after reviewing the matter, sustained the PSC order and judgment was entered on October 12, 1978. Matador appeals that judgment to this court.

Matador, on appeal, has advanced essentially three issues:

1. Whether or not the PSC's granting of temporary authority to Power Fuels was unlawful.

2. Whether or not the statutory requirement that, on review, a court must determine if the administrative agency's findings of fact are supported by a preponderance of the evidence, is constitutional.

3. Whether or not the PSC's findings of fact are supported by a preponderance of the evidence.

I

First, Matador argues that the PSC should not have granted Power Fuels a temporary permit for service and, because the PSC should not have granted such permit, its Amended Finding of Fact No. 6 should not have been made. In Amended Finding of Fact No. 6 the PSC stated:

"Under the Temporary Authority granted by the Public Service Commission, Power Fuels has been engaged in a satisfactory common carrier transportation of crude oil and water for Wiser Oil, Phillips Petroleum, Murphy Oil, Ward-Williston, Zinke and Phillipe, utilizing three trucks and three trailers stationed at Minot, North Dakota."

In support of its position Matador has included in the appendix a copy of a Burleigh County district court decision in Dan Dugan Transport Company v. Elkin, Civil No. 26208 (Sept. 7, 1977). No appeal was taken from the decision in Dan Dugan. Dan Dugan apparently was an action for declaratory judgment naming the PSC as a party and asking the court to construe the provisions of Section 49-18-12, N.D.C.C., insofar as those provisions concern the issuance of a temporary permit. The Burleigh County district court determined that whether or not a temporary permit should be issued to an applicant was not a matter that rested solely in the discretion of the members of the PSC. It concluded that the PSC has the authority to grant temporary permits upon a showing that (1) there is an immediate and urgent need for the proposed service and (2) there is no carrier capable of meeting that need. Furthermore, the district court concluded that where the records of the PSC reveal that an existing common motor carrier is authorized to provide the service in question, some procedure should be utilized by the PSC to determine whether or not that carrier is willing and able to provide the service required by the immediate, urgent need therefor. The district court determined, however, that the precise summary procedure to be used by the PSC in reaching the determination required by statute should be left to the PSC but that the PSC cannot lawfully confine itself to unsupported allegations contained in an application for a temporary permit. Matador now asks that we give the PSC "some further hints" concerning what should be required of an applicant in the ex parte proceeding to permit the PSC to conclude that there is an immediate and urgent need for common motor-carrier service requiring the issuance of a temporary permit under Section 49-18-12, N.D.C.C.

The PSC and Power Fuels note, however, that the decision in Dan Dugan was issued some five months after the temporary permit had been issued to Power Fuels by the PSC, and that Power Fuels should not be penalized by a decision issued after the temporary permit had been issued. Additionally, both the PSC and Power Fuels argue that the evidence submitted at the hearing before the PSC, on which Amended Finding No. 6 was based, was used only for the purpose of determining whether or not Power Fuels provided satisfactory service during the time it held the temporary permit and not for the purpose of determining whether or not there was a need for additional service. It is obvious that such evidence could not be used to establish a need for additional service because Section 49-18-12, N.D.C.C., provides, in part, that the temporary permit "shall create no presumption that the corresponding certificate of public convenience and necessity shall be granted after the hearing on the application." The PSC also argues that there is no evidence in the record upon which we can conclude that it has failed to adhere to the decision in Dan Dugan because, as we have already noted, that decision was issued after the temporary permit was granted by the PSC.

We agree with the PSC and Power Fuels that the method of issuance of the temporary permit should not be decided by this court in the context of the present appeal. If the decision in Dan Dugan was meant to be instructive to the PSC in its issuance of temporary permits, it could not apply to a permit issued some five months prior to that decision. Although Matador in its brief alleges that the PSC has "really done nothing to effect a change in its policy relating to the issuance of temporary common motor carrier authority under the statute," evidence of that allegation is not before us. A review of the transcript of the proceedings before the PSC on the issuance of the certificate of convenience and necessity and the PSC's findings of fact and conclusions of law do not reflect that the testimony concerning the satisfactory service provided by Power Fuels under its temporary authority was used by the PSC as a presumption that the certificate of public convenience and necessity should be granted. Furthermore, we agree with the Burleigh County district court that the PSC should determine the precise summary procedure to be used by the PSC in deciding whether or not temporary authority should be granted. The Legislature obviously also has authority to determine that procedure. Surely this court should not do so, however, particularly where there is no record to reflect that the PSC has refused to abide by the decision of the Burleigh County district court in Dan Dugan.

II

The second issue Matador raises concerns the scope of review on appeal from a decision of an administrative agency. Prior to July 1, 1977, Section 28-32-19, N.D.C.C., provided, in part, that the decision of the agency should be affirmed unless "the findings of fact made by the agency are not supported by the evidence." This provision was construed to mean that the findings must be supported by "substantial evidence." E. g., Geo. E. Haggart, Inc. v. North Dakota Workmen's Compensation Bureau, 171 N.W.2d 104 (N.D.1969).

In 1977, the Legislature amended Section 28-32-19, N.D.C.C., to require that the decision of the agency be affirmed unless the findings of fact made by the agency "are not supported by a preponderance of the evidence." In its decision the district court determined, in part:

"3. The standard of review of agency decisions found at NDCC...