Weaver Bros., Inc. v. Alaska Transp. Commission
| Decision Date | 29 December 1978 |
| Docket Number | No. 3577,3577 |
| Citation | 588 P.2d 819 |
| Parties | WEAVER BROS, INC., Appellant, v. ALASKA TRANSPORTATION COMMISSION, K & W Trucking Co., Inc., O. G. Ness doing business as O. G. Ness Truck Company, Appellees. |
| Court | Alaska Supreme Court |
Edward T. Noonan and Charles E. Cole, Law Offices of Charles E. Cole, Fairbanks, for appellant.
Douglas A. Hebbel and Thomas Wickwire, Asst. Attys. Gen., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee Alaska Transp. Commission.
H. Russel Holland, Holland & Thornton, Anchorage, for appellee K & W Trucking Co., Inc.
George L. Benesch, Anchorage, for appellee O. G. Ness.
Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR and BURKE, Justices.
This case challenges a decision of the Alaska Transportation Commission, approving the transfer of a motor carrier permit. Orville G. Ness, doing business as O. G. Ness Truck Company, applied to the Alaska Transportation Commission for approval to transfer his motor carrier permit 1 to K & W Trucking Co., Inc. Three carriers filed protests to this transfer application, but two of them withdrew from the case, leaving appellant Weaver Bros., Inc. as the sole protestant.
Weaver Bros.' principal objection was that certain portions of Ness's operating authority were dormant, primarily because Ness allegedly had not transported goods between and within certain geographic areas as authorized by his permit. 2 AS 42.10.220(b) 3 and a Commission regulation 4 provide that only those operating rights shown to be in regular and active use may be transferred. The Commission, finding that Ness's operating rights were not dormant approved the transfer. The Commission's decision was affirmed by the superior court, which ordered Weaver Bros. to pay attorney's fees to Ness and K & W Trucking, of $1,000 and $1,500 respectively. Weaver Bros. appeals the affirmance of the Commission's order and the award of attorney's fees.
We must first determine the scope of our review. Appellant argues that this case calls for statutory construction of the language of AS 42.10.220(b), and that such a task is within our special competency. Appellant, therefore, urges us to interpret the statute independently of the Commission's decision.
Appellees argue that the Commission's decision involved the formulation of fundamental policies, requiring the particularized expertise and experience of the Commission's personnel. Appellees, therefore, contend that we should merely inquire whether the Commission's decision had a reasonable basis. We agree with appellees' contention.
It is indeed within our special competency, as appellants urge, to interpret a statute independently of an administrative agency determination, when the issue to be resolved is one of general statutory interpretation. 5 Where, however, as here, the agency decision concerns "administrative expertise as to either complex subject matter or fundamental policy formulations, deference should be given to an administrative determination if it has a reasonable basis in law and in fact." 6
We have stated that such deference should be granted because the agency, having specialized knowledge in a field, is in a better position than a court to make such determinations. 7 We believe that the Commission's decision about the dormancy of some of Ness's operating rights involved formulations of fundamental policy, requiring the expertise of the Commission's personnel. AS 42.10.220(b) mandates that permits to be transferred be in " active and regular use." The agency is better equipped than are we to determine how active and regular use shall be measured, since fundamental policy questions are presented concerning the adequacy of service to various routes and the regulation of competition in those routes.
Therefore, we shall limit our review to whether the Commission's determination had a reasonable basis in law and in fact.
We proceed to apply the reasonable basis test to the Commission's finding of non-dormancy. The agency concluded that:
"If it is shown that a carrier has conducted substantial and continuous operations under its permit, as a whole, the authority is not to be decimated merely because of a lack of active, physical operations in some territorial segments, unless it appears that the carrier abandoned or refused to provide needed service to such segments . . . ."
In determining what sort of operations were substantial and continuous, the Commission looked to various factors, such as the continuity with which required filings, including tariffs and insurance, were made, the willingness of the carrier to serve, and the ability of the carrier to serve when called upon.
The Commission's determination that the requisite statutory use is "substantial" use corresponds to the Interstate Commerce Commission's application of the federal non-dormancy requirement, found at 42 C.F.R. § 1132.5(b). 8 Interstate Commerce Commission cases applying this regulation establish that the test for non-dormancy is whether there has been "substantial" service to a representative number of points within the authorized zone of operations. 9 This test does not require that each geographic area within a carrier's authority be served. 10 In determining substantiality of operations, the Interstate Commerce Commission also looks to whether the carrier holds itself out as willing to perform, 11 whether operations have ceased due to circumstances beyond the carrier's control, 12 and whether the carrier intends to abandon the route. 13
The Supreme Court of Washington, in interpreting a regulation 14 which more closely resembles AS 42.10.220(b) than its federal counterpart, has reasoned along the same lines as the federal cases. In Herrett Trucking Co. v. Washington Public Service Commission, 61 Wash.2d 234, 241, 377 P.2d 871, 875 (1963), the court held that the "mere failure to operate in one portion of the state does not affect an intrastate permit, unless there is an intent to abandon state-wide service." The carrier in Herrett had been active in eastern Washington, but not in the western part of the state. The court found that the carrier's intrastate permit was not dormant, taking into consideration Herrett, supra 61 Wash.2d at 242, at 876. In Black Ball Freight Service v. Washington Utilities & Transportation Commission, 77 Wash.2d 479, 463 P.2d 169, 171 (1969), the Washington Supreme Court held that "readiness, willingness and ability to serve" were more important factors to be considered in deciding whether operating rights were dormant than "mere numerical calculation of the number of shipments." The court also took into account that the carrier maintained equipment consistent with the size and scope of its operation, and that it was, therefore, in a position to provide service when requested to do so. Further, the court found that there was no evidence that the carrier intended to abandon any of its rights. On that record, the rights were held to be not dormant.
The Commission's reliance upon factors similar to those used by the Washington Supreme Court and the Interstate Commerce Commission convinces us that the Commission's determination of non-dormancy had a reasonable basis in law.
We also hold that, under the factors which the Commission considered, its decision was supported by substantial evidence. The Commission found that Ness's operations were, for the most part, substantial and continuous. As for the segments claimed by protestant to be dormant, Ness held himself out as ready and willing to serve, but no traffic was offered to him. The Commission also noted that much of the traffic from construction of the trans-Alaska pipeline, available to protestant, was not offered to Ness, because of Alyeska Pipeline Service Company's policy of using only those carriers who held both I.C.C. and A.T.C. authority to serve the particular points involved in any given shipment. 15 The Commission noted that Ness had filed all tariffs, had adequate insurance, and had paid all required fees. The Commission further considered the size and scale of Ness's operations in making its determination.
As we find that the Commission's determination has a reasonable basis in law and is supported by substantial evidence, we affirm the Commission's decision and the superior court's determinations, that Ness's operating rights were not dormant and were transferable.
As to attorney's fees, it appears to us that the competitive advantage sought by appellant in this litigation takes the case outside of the notion of public interest litigation. See Lynden Transport, Inc. v. State, 532 P.2d 700 (Alaska 1975); Mobil Oil Corporation v. Local Boundary Commission, 518 P.2d 92 (Alaska 1974). It was not an abuse of discretion for the superior court to award fees to appellees. Our opinion in Gilbert v. State, 526 P.2d 1131 (Alaska 1974), on which appellant bases its argument, is not apposite.
AFFIRMED.
MATTHEWS, J., not participating.
1 Ness's permit gave him the following operating rights:
"I. GENERAL COMMODITIES EXCEPT CLASS A AND B EXPLOSIVES AND HOUSEHOLD GOODS AS DEFINED BY THE INTERSTATE COMMERCE COMMISSION.
BETWEEN ALL POINTS AND PLACES IN ZONE 5A.
BETWEEN ALL POINTS AND PLACES IN ZONE 5A ON THE ONE HAND, AND ON THE OTHER HAND, ALL POINTS AND PLACES IN ZONES 3, 4, 5, 6 and 7.
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