Widing Transp., Inc. v. I. C. C.
| Decision Date | 01 November 1976 |
| Docket Number | No. 75-1849,75-1849 |
| Citation | 545 F.2d 652 |
| Parties | WIDING TRANSPORTATION, INC., Petitioner-Appellant, Bigge Drayage Company, and Mojave Transportation Co., Intervening Petitioners-Appellants, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents-Appellees, C & H Freightways et al., Intervening Respondents-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Earle V. White (argued), of White & Southwell, Portland, Ore., for petitioner.
Peter A. Fitzpatrick, Atty. (argued), ICC, Washington, D.C., for respondent.
John Paul Fischer (argued), of Silver, Rosen, Fischer & Stecher, San Francisco, Cal., for intervenor, Mojave Transp. Co.
Ann M. Pougiales (argued), of Loughran & Hegarty, San Francisco, Cal., for intervenor, Bigge Drayage Co.
J. M. Doherty (argued), of Doherty, Robertson & Maxwell, Austin, Tex., for intervenor, J. H. Rose Truck Line, Inc. & Sammons Trucking.
Russell M. Allen (argued), of White, Sutherland, Parks & Allen, Portland, Ore., for intervenor, Mitchell Bros. Truck Line & Wilhelm Trucking Co.
Before TRASK and GOODWIN, Circuit Judges, and JAMESON, * District Judge.
Petitioner, Widing Transportation, Inc. (Widing), and intervening petitioners, Bigge Drayage Company (Bigge) and Mojave Transportation Co. (Mojave), seek judicial review of an order of the Interstate Commerce Commission denying their respective applications for certain irregular route motor carrier authority. Their applications were considered in a consolidated proceeding with those of five other motor carriers seeking similar authority. The administrative law judge recommended that the applications of three other applicants be granted and that the remaining applications, including those of petitioners, be denied. The Commission adopted, with slight modifications, the findings, conclusions, and recommended order of the judge. This appeal followed. We affirm.
On June 14, 1971, Mitchell Bros. Truck Lines filed an application with the Commission pursuant to section 207 of the Interstate Commerce Act, 49 U.S.C. § 307, 1 seeking a certificate of public convenience and necessity to operate as a heavy hauler motor carrier 2 between points in California and other points in Oregon, Washington, Idaho, Utah, Nevada, Wyoming, Colorado, and Arizona. Applications were thereafter filed by Widing, Bigge, Mojave, Ashworth Transfer, Inc., Reliance Truck Company, West Coast Truck Lines, Inc., and Salt Lake Transfer Company. These applications sought commodity authority similar to that sought by Mitchell, but over differing geographic territories. 3
All applicants held authority allowing joint-line 4 heavy hauling service in some of the areas covered by the applications. By their applications they were seeking authority for a single-line 5 service to and from points in California and surrounding states.
The applications were consolidated into one proceeding 6 and assigned to an administrative law judge, who held extensive hearings on the application in five western cities. Each applicant was afforded an opportunity to present evidence supporting its application and to challenge evidence presented by other applicants. Numerous motor carriers, including three of the applicants, opposed one or more of the applications. The transcript consists of more than 3,000 pages, including the testimony of 289 public or shipper witnesses who testified in support of one or more of the applications. Over 300 exhibits were also received in evidence. Much of the evidence was directed toward showing a public need for the expanded single-line service and the extent of past operations of each carrier over portions of the authority sought in its application.
On July 20, 1973, the judge issued his initial decision, which recommended that the applications, as amended, of Mitchell, Reliance, and West Coast be granted and that the remaining applications be denied. Those applicants whose applications had been denied thereafter filed joint exceptions to the initial decision. Following consideration of these exceptions, the Commission, Division 1, adopted the findings and conclusions of the judge by final decision and order on February 13, 1975.
On April 16, 1975, Widing filed this petition for review of the Commission's action. Applicants Mojave and Bigge intervened as petitioners pursuant to F.R.App.P. 15(d) and 28 U.S.C. § 2323. West Coast and Mitchell, as well as several other carriers, 7 intervened in support of respondents. Bigge seeks to set aside the Commission's order in its entirety. Widing and Mojave seek to set aside those portions of the order which denied their own applications, with instructions to the Commission that their applications be granted.
The administrative law judge issued an extensive initial decision reviewing the evidence of the operating authority and contentions of each applicant, 8 and setting forth his findings, conclusions and recommended order. The decision itself, consisting of 32 pages, was supplemented by appendices detailing the authority sought by each applicant (3 pages), summarizing the testimony of the shipper witnesses (137 pages), and summarizing the evidence of 22 protestants (37 pages).
The judge found that there was a public need for single-line service in portions of the ten-state area 9 covered by the applications and that each applicant was "fit and able, financially and otherwise", to conduct the operations proposed in their applications. Facing the difficult task of choosing which of the applications should be granted, the judge noted that each applicant had attempted "to rely principally upon past interline operations and their competitive presence as justification for the grant of new single- line authority". He concluded that it was therefore necessary to define the actual service provided by each applicant "independent" of the others, particularly where the applicants had engaged in interlining, since "it would not be in the public interest to grant each of the interlining carriers single line authority" unless a need for the additional service was clearly established.
The judge found that Widing, Bigge, Mojave, Salt Lake, and Ashworth had each "submitted evidence of existing interline service and past joint line operations," but that "a very substantial part of the evidence" was "duplicated in one or more of the other presentations". 10 Each of these carriers "provides facilities essentially limited on a regional basis". 11 The decision continued: "However, more to the point, each of the five applicants (Mojave, Bigge, SLT, Ashworth and Widing) failed to present documentary evidence that would permit the judge to determine which one, or how many, of these applicants actually provided any physical service, and which merely provided the required operating authority as a bridge carrier or as a passive recipient of a percentage of the revenue". 12 The judge concluded that "on this record there is no practical method to determine whether any one or more of these services are actually required on a single line basis".
The court found, however, that the "record clearly establishes the existence of two non-duplicating services between California on the one hand, and, on the other, points in the Pacific Northwest". These carriers were Mitchell and West Coast, whose services were found to be "well defined on this record within the described areas". 13 Since no other applicant was involved in providing the services of these carriers, the judge found that "no additional and destructively surplus services would result in a grant of authority to permit these carriers to continue a beneficial competitive service in this territory". The operations of Reliance between California and Arizona were found to be of a similar character.
The judge concluded that "authorization of these three services on a single line basis will not create unnecessary duplicating service, but rather will permit these carriers to provide the exact same service now provided, more efficiently and economically, all to the public benefit". Accordingly the judge recommended that the applications of West Coast, Mitchell, and Reliance, as amended, 14 be granted, giving them substantially the commodity authority sought (see note 2) over the following territory:
In essence all of the petitioners contend that (1) the denial of their applications was arbitrary, capricious, and an abuse of discretion; (2) the administrative law judge overlooked and failed to accord proper weight to substantial evidence which required the granting of their applications; and (3) erroneous and discriminatory standards of law were applied to various parties similarly situated. Widing does not question the grant of authority to Mitchell, but contends that its application should have been granted either in addition to, or instead of, those granted.
The parties agree that the scope of review of orders of the Interstate Commerce Commission is narrow. 5 U.S.C. § 706 provides in pertinent part:
"To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall
(2) hold unlawful and set aside agency action,...
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