Durango Transportation, Inc. v. Colorado Public Utilities Commission

122 P.3d 244, 2005 WL 2710169
CourtSupreme Court of Colorado
DecidedOctober 24, 2005
DocketNo. 04SA391
StatusPublished
Cited by6 cases

This text of 122 P.3d 244 (Durango Transportation, Inc. v. Colorado Public Utilities Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Durango Transportation, Inc. v. Colorado Public Utilities Commission, 122 P.3d 244, 2005 WL 2710169 (Colo. 2005).

Opinion

RICE, Justice.

Appellant Durango Transportation, Inc. (DTI) appeals the judgment of the district court affirming the decision of appellee Public Utilities Commission (Commission) that granted exceptions to the Recommended Decision of the Administrative Law Judge (ALJ) and- granted an Application for an Extension of Certificate of Public Convenience and Necessity to appellee, DSC Purgatory, LLC, doing business as Durango Mountain Resort (DMR).1 The district court concluded that the Commission regularly pursued its authority, that the Commission’s decision is just and reasonable, and that the Commission’s conclusions are in accordance with the evidence. We affirm the district court’s judgment.

I. Facts and Procedural History

DMR is a ski resort located on Purgatory Mountain, approximately twenty-six miles north of the town of Durango and approximately seventeen to eighteen miles southeast of the Durango-La Plata County Airport (airport). DMR contains 450 rental units, as well as an unspecified number of units occupied by permanent residents. DMR currently holds a Certificate of Public Convenience and Necessity (CPCN) that authorizes it to provide scheduled transportation service between the-resort and Durango, with service to intermediate points. Seeking to improve transportation services for its guests, DMR [246]*246on September 3, 2002 filed an application for an extension of its CPCN that would extend its authority to include call-and-demand limousine service to passengers between the resort and all points in the counties of La Plata, Montezuma, Ouray, and San Juan.

DTI operates a passenger-transportation service based in Durango and holds a CPCN that authorizes it to provide taxi service, charter service, and call-and-demand limousine-service to an area that encompasses the territory that DMR seeks by this application to serve by call-and-demand limousine service. DTI timely intervened to oppose DMR’s application, arguing that DMR’s proposed extension would illegally interfere with its authority.2

On November 19, 2002, a hearing on the application was held before an ALJ. DMR presented eight witnesses, DTI presented five witnesses, and seventeen exhibits were admitted into evidence. After hearing the evidence, the ALJ made fifty-five separate and comprehensive findings of fact and prepared a Recommended Decision. The ALJ concluded that, under the doctrine of regulated monopoly, DMR had failed to demonstrate that DTI’s service in the contested area was “substantially inadequate,” and therefore recommended that the Commission deny DMR’s application. Central to the ALJ’s Recommended Decision was its conclusion that DMR had “presented no evidence that [DTI] failed or refused to respond to a service request on more than an occasional basis.”

DMR filed exceptions with the Commission pursuant to section 40-6-109(2), C.R.S. (2006), and DTI filed a response to the exceptions. Neither party challenged the ALJ’s findings of fact, and the Commission adopted them in their entirety. The Commission, however, disagreed with the ALJ’s conclusion that an applicant must prove specific instances of failure or refusal to provide service by the incumbent carrier in order to show substantial inadequacy. Considering “the overall context” of the transportation needs of southwest Colorado, the Commission determined that DTI is not “ready, willing, and able” to meet the area’s needs. Therefore, the Commission concluded that DTI’s service is substantially inadequate and granted DMR’s exceptions and the extension to DMR’s CPCN.

The Commission based its decision on a number of factors. First, the Commission determined that the only transportation services available between Purgatory Mountain (including DMR) and Durango are DTI’s services, DMR’s scheduled service, and private (including rental) vehicles. The Commission found further that, despite “huge growth” in the Durango area — particularly in the tourist industry surrounding Purgatory Mountain and DMR — DTI has failed to make efforts to provide timely and efficient service to these potential customers. In this regard, the Commission noted that in ski season 2001 through 2002, an estimated 20,000 people needed transportation between the airport and DMR. Of this number, DTI transported only 132 people from the airport to DMR and 140 people from DMR to the airport. The Commission also observed that, because DTI’s only base of operations is in Durango, which is twenty-six miles from DMR, DMR guests have to wait at least forty-five minutes for call-and-demand limousine service from DTI.

The business that DTI loses through its failure to provide timely and efficient service to these potential customers, the Commission found, “is directly related' to the fact that DTI’s rates to and from DMR are perceived by the public to be prohibitively expensive -” For a one-way trip for one passenger between- DMR and the airport, DTI charges $65; for two passengers, the trip costs $80. For a one-way trip between DMR and Du-rango for one or two customers, DTI charges $54. The Commission considered the testimony of past and present employees of DMR that DMR guests generally do not use DTI’s transportation services and that guests have cited the cost of DTI’s services, as well as the [247]*247long wait times, as the reasons for their rejection of DTI.

The Commission also concluded that DTI does not have enough vehicles or drivers to serve its service area adequately. DTI’s authority covers 7,000 square miles. However, at the time of the hearing, the Commission found that DTI had only four vehicles in operation and two to three drivers working at any given time.

The Commission considered evidence that the lack of timely, efficient, and affordable shuttle service creates safety concerns on Purgatory Mountain. The Commission noted that many visitors to DMR come from out of state and lack experience in mountain driving, that the highway between Durango and DMR is unlit, and that visitors often drive on the highway after consuming alcohol either on the mountain or in Durango. Finally, the Commission noted that La Plata and San Juan Counties have made on-call and shuttle service a requirement for DMR’s plans to expand over the next ten to twenty years. Concluding that the inadequacies of DTI’s service create a public need for DMR’s proposed service, the Commission granted the extension to DMR’s CPCN.

DTI filed an application for Rehearing, Reargument, or Reconsideration pursuant to section 40-6-114(1), C.R.S. (2006), which the Commission denied. Thereafter, DTI appealed the Commission’s decision to the district court pursuant to section 40-6-115(1), C.R.S. (2005). The district court affirmed the Commission’s decision, and DTI now requests that this Court reverse the district court and the Commission.3

II. Analysis

A. Standard of Review

The standard of review in this case is provided by section 40-6-115, C.R.S. (2005). See Jarco, Inc. v. Pub. Utils. Comm’n, 2 P.3d 116, 118 (Colo.2000). Under this section, judicial review is limited to the questions of

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122 P.3d 244, 2005 WL 2710169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durango-transportation-inc-v-colorado-public-utilities-commission-colo-2005.