Vacuum Truck Carriers v. La. Serv. Com'n
| Citation | 12 So.3d 932 |
| Decision Date | 05 May 2009 |
| Docket Number | No. 2008-CA-2340.,2008-CA-2340. |
| Parties | VACUUM TRUCK CARRIERS OF LOUISIANA, INC. and Its Member Carriers v. LOUISIANA PUBLIC SERVICE COMMISSION. |
| Court | Supreme Court of Louisiana |
Phelps, Dunbar, Kyle Christian Marionneaux, John Owen Shirley, Sr., Harry Alston Johnson, Baton Rouge, III, Amanda Hurt Smith, Eve Kahao Gonzalez, for appellant.
The Boles Law Firm, Janet S. Boles, Baton Rouge, for appellee.
This appeal raises the issue of whether the Louisiana Public Service Commission (hereinafter, "Commission") acted arbitrarily or capriciously when it granted Southern Specialties Transportation, L.L.C. (hereinafter, "Southern") a limited and restricted common carrier certificate authorizing the transportation of drilling mud for disposal originating in only six named parishes, with additional restrictions specifically prohibiting transportation by dump truck of non-hazardous solid waste originating in three other named parishes. On appeal to the 19th Judicial District Court pursuant to La.Rev.Stat. 45:1192, the district court rescinded the Commission's Order No. T-29541. Thereafter, the Commission and Southern appealed directly to this court pursuant to La. Const. art. IV, § 21 (1974). After reviewing the record of the evidence in this case and the applicable law, we conclude the Commission's determination that Southern met its burden of showing public necessity and convenience in its application for a limited and restricted common carrier certificate was not arbitrary and capricious and is reasonably supported by the evidence. Because we find the district court erred in substituting its judgment for that of the Commission, we reverse the district court's ruling and reinstate the Commission's Order No. T-29541.
On May 8, 2006, Southern filed an application for a common carrier certificate authorizing transportation of drilling mud for disposal, statewide. The application was published in the Commission's Official Bulletin on May 10, 2006. During the publication period, the Commission received notices of opposition on behalf of Vacuum Truck Carriers of Louisiana, Inc. (hereinafter, "Vacuum Truck Carriers"), Vanguard Vacuum Trucks, Inc. (hereinafter, "Vanguard"), and Stranco, Inc. (hereinafter, "Stranco"). The Commission also received a formal protest on behalf of Scioneaux, Inc. (hereinafter, "Scioneaux"). Protestants are holders of common carrier certificates interested in protecting their operating rights.
A hearing before the Commission was continued several times, with counsel for the applicant Southern stating in one motion that the applicant and the protestants were negotiating to resolve their differences. In the meantime, Vanguard in July 2006 withdrew its opposition to Southern's application. In August 2006, Southern filed a restrictive amendment to its application, which action resulted in the withdrawal of Scioneaux's protest. Accepted by the Commission, the restrictive amendment provides as follows:
Restricted against the transportation by dump trucks of regulated non-hazardous solid waste originating in the parishes of St. John the Baptist, St. Charles and St. James. This restriction is applicable only to the transportation of non-hazardous solid waste in dump trucks.
In September 2006, Stranco also withdrew its opposition to Southern's application.
A hearing was conducted on October 3, 2006, before an administrative law judge (hereinafter, "ALJ"). After Southern filed an exception to the ALJ's draft recommendation, the ALJ issued a final recommendation to the Commission on February 23, 2007, in the form of a draft order. The proposed order found that, although there are times when the shippers' needs are not being met on demand, the applicant did not prove as required by La. Rev. Stat. 45:164 that public convenience and necessity required the issuance of a certificate. The Commission in its business and executive session of May 24, 2007, voted, with the exception of one member, to reject the ALJ's final recommendation and to grant Southern a limited and restricted common carrier certificate authorizing the transportation of drilling mud for disposal, which originates in the parishes of Acadia, Evangeline, St. Landry, Jefferson Davis, Vermillion, and Cameron, with the following restrictions or limitation:
Restricted against the transportation by dump trucks of regulated non-hazardous solid waste originating in the parishes of St. John the Baptist, St. Charles and St. James. This restriction is applicable only to the transportation of non-hazardous solid waste in dump trucks.
On October 3, 2007, the Commission initially issued its Order No. T-29541 reflecting that decision, but it subsequently reissued the order on November 26, 2007, "merely to correct the name of the applicant." LPSC Order T29541, November 26, 2007, p. 1, n. 1. Pursuant to La.Rev. Stat. 45:1192, the protestant appealed the Commission's Order No. T-29541 to the 19th Judicial District Court, which issued an opinion rescinding the Commission's order. The Commission and Southern now appeal that ruling to this court under La. Const. art. IV, § 21 (1974).
Under Louisiana law, a motor carrier may not operate as a common carrier without first obtaining from the Commission a certificate of public convenience and necessity, which shall be issued only after a written application is made, a public hearing conducted, due notice given to the applicant and all competing common carriers, and a finding by the Commission that public convenience and necessity require the issuance of a certificate. La.Rev.Stat. 45:164. Furthermore, no new or additional certificate will be granted over a route where the Commission has previously issued a certificate, unless it is clearly shown that the public convenience and necessity would be materially promoted thereby. Id.
Given the focus on public convenience and necessity, that concept has been the subject of much litigation and discussion. See, e.g., Matlack, Inc. v. Louisiana Public Service Comm'n, 622 So.2d 640 (La. 1993). Consequently, it is well-settled that public convenience and necessity is a dynamic and flexible concept, which is not susceptible to a rigid or precise definition and, therefore, must be determined on a case-by-case basis. Louisiana Household Goods Carriers v. La. Public Service Comm'n, 00-2803, p. 4 (La.3/12/01), 781 So.2d 545, 547; Matlack, Inc., 622 So.2d at 650; Florane v. Lousiana Public Service Comm'n, 433 So.2d 120, 123 (La.1983). Among the factors that may be considered in determining public convenience and necessity are whether the new operation or service will serve a useful public purpose responsive to public demand or need, whether this purpose can and will be served as well by existing carriers, whether it can be served by the applicant's operation without endangering or impairing operations of existing carriers contrary to public interest, and whether it can be served by the applicant without undue jeopardy to highway users or to the structure and safety of the roads. Miller Transporters, Inc. v. Louisiana Public Service Comm'n, 518 So.2d 1018, 1019-20 (La.1988)(collecting cases and authorities); see also Matlack, Inc., 622 So.2d at 655-56 (citing L & B Transp. Co. v. Louisiana Public Service Comm'n, 602 So.2d 712, 714 (La.1992); Gulf Coast Pre-Mix Trucking v. Louisiana Public Service Comm'n, 336 So.2d 849, 854 (La.1976)).
Evaluating whether an applicant meets the requisite burden of proving public convenience and necessity is within the Commission's sound judgment and discretion. Mississippi Chem. Exp., Inc. v. Louisiana Public Service Comm'n, 94-0440, p. 7 (La.5/23/94), 637 So.2d 93, 98; Matlack, Inc., 622 So.2d at 650. The Commission's determination is accorded great weight because it is an exercise of the Commission's discretionary authority. Mississippi Chem. Exp., Inc., 94-0440 at p. 7, 637 So.2d 93, 98; Florane, 433 So.2d at 123; Dreher Contracting & Equip. Rental, Inc. v. Louisiana Public Service Comm'n, 396 So.2d 1265, 1267 (La.1981)). Indeed, "[t]he general rule is that a regulatory body may use its own judgment in evaluating evidence as to a matter within its own expertise...." Louisiana Household Goods Carriers, 00-2803, p. 4, 781 So.2d at 548; Baton Rouge Water Works Co. v. Louisiana Public Service Comm'n, 342 So.2d 609, 611 (La.1977). The determinations made by the Commission are presumed valid; therefore, the party who attacks the Commission's determination has the burden of proving its invalidity. Louisiana Household Goods Carriers, 00-2803, p. 4, 781 So.2d at 548; Baton Rouge Water Works Co., 342 So.2d at 611; Louisiana Oilfield Carriers Ass'n v. Louisiana Public Service Comm'n, 281 So.2d 698, 700 (La.1973).
A reviewing court may not overturn the Commission's determination of public convenience and necessity unless the determination is based on an error of law, or unless it is arbitrary or capricious. Louisiana Household Goods Carriers, 00-2803, p. 4, 781 So.2d at 548; Baton Rouge Water Works Co., 342 So.2d at 611; Miller Transporters, Inc. v. Louisiana Public Service Comm'n, 518 So.2d 1018, 1020 (La. 1988). The Commission's determination "is arbitrary and capricious only when the evidence in the record does not and could not reasonably support it." Mississippi Chem. Exp., 94-0440 at p. 7-8, 637 So.2d at 98. When reviewing the Commission's determinations, the reviewing court should not re-weigh the evidence or re-judge the credibility of the witnesses or substitute its findings for those of the Commission. Louisiana Household Goods Carriers, 00-2803, pp. 4-5, 781 So.2d at 548; Louisiana Household Goods Carrier v. Louisiana Public Service Comm'n, 99-3184, pp. 3-4, 762 So.2d 1081, 1085; Mississippi Chem. Exp., 94-0440 at p. 7-8, 637 So.2d at 98. Instead, reasonable inferences of fact and of credibility made by the Commission should...
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