Louisiana Tank v. Louisiana Public Service Commission

442 So. 2d 1124, 1983 La. LEXIS 12332
CourtSupreme Court of Louisiana
DecidedNovember 28, 1983
DocketNo. 83-CA-0914
StatusPublished
Cited by2 cases

This text of 442 So. 2d 1124 (Louisiana Tank v. Louisiana Public Service Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Louisiana Tank v. Louisiana Public Service Commission, 442 So. 2d 1124, 1983 La. LEXIS 12332 (La. 1983).

Opinion

MARCUS, Justice.

This case involves the Louisiana Public Service Commission’s grant of a certificate of public convenience and necessity to Well-Vac, Inc., conferring statewide authority as a common carrier to transport certain special commodities over irregular routes.

An application for the aforesaid certificate was filed by Well-Vac with the Commission on April 8, 1981. As amended on April 22, 1981, the application sought a common carrier of special commodities certificate authorizing transportation “by vacuum truck of any and all commodities used in, produced or demanded by industrial operations, oil and gas field operations, and marine and pipeline operations, specifically including any waste products, from, to and between all points in the State of Louisiana.” After publication of notice of hearing by the Commission, an opposition and protest was filed by the Vacuum Truck Carriers of Louisiana, its individual member carriers, and certain non-member carriers. A hearing was held before Commissioner Thomas E. Powell and Examiner James W. Henderson on September 1,1981. Subsequent to this hearing, application was considered at an open session of the full Commission held September 21, 1981. The Commission, by a 3-2 vote with Commissioners Powell and George J. Ackel dissenting, found that in view of the evidence present in the record, “the public convenience and necessity require, and would be materially promoted by the granting of the authority sought.” Accordingly, by order dated September 30, 1981, the application was approved conditioned upon the grantee’s compliance with the “laws and rules and regulations of the Commission bearing thereon.” Commissioner Powell, in his written reasons for dissenting, stated:

I respectfully dissent because there is no evidence whatsoever in the record to prove that the public convenience and necessity would be served by the grant of this authority. The two witnesses testifying in support of applicant who utilize vacuum truck common carriers confirmed that adequate service is provided by the several authorized carriers domiciled in the area and the third witness is a lease operator to a regulated motor carrier who had only hearsay testimony. To the contrary, the 13 authorized carriers appearing in opposition expressed concern over the lack of business with some carriers realizing only 20% to 25% utilization of equipment.
Additionally, there was no testimony at all in support of transportation of industrial waste.

After the order became effective, Louisiana Tank, Inc. and eleven other vacuum truck carriers with certificates of authority from the Commission filed a petition in the [1126]*1126district court pursuant to La.R.S. 45:11921 setting forth their cause of objection to the order of the Commission. The petition alleged that the decision of the Commission was arbitrary and capricious and that no showing was made that the public convenience and necessity would be materially promoted by the granting of the certificate. The Commission answered generally denying the allegations of the petition. Well-Vac intervened uniting with the Commission in resisting Louisiana Tank’s action. After a pre-trial conference on July 7,1982, Judge Doherty complied with a request by Well-Vac and remanded the matter to the Commission to take additional evidence. Pursuant to this order, a second hearing ' was held before Examiner Henderson alone on September 1, 1982. By order dated November 12, 1982, the Commission found no evidence was introduced at the second hearing that would alter its initial order of September 30, 1981. Accordingly, over the dissents of Commissioners Powell and Ack-el, the Commission’s original order was affirmed.

The matter was again brought before Judge Doherty who, after considering all of the testimony adduced at both hearings, reversed the orders of the Commission. According to the court, “the evidence produced before the Commission ... is wholly inadequate to justify the issuance of a certificate to the applicant.” The Commission and Well-Vac appealed to this court pursuant to La. Const, art. 4, § 21(E).2

On appeal to this court, Well-Vac’s primary contention3 is that the district court erred in holding that there was insufficient evidence to support the Commission’s finding that the public convenience and necessity would be materially promoted by the granting of the certificate sought by Well-Vac.

La.R.S. 45:164 provides in pertinent part: No motor carrier shall operate as a common carrier without first having obtained from the commission a certificate of pub-[1127]*1127lie convenience and necessity, which shall be issued only after a written application made and filed, a public hearing, due notice given to applicant and all competing common carriers, and a finding by the commission that public convenience and necessity require the issuance of a certificate. No new or additional certificate shall be granted over a route where there is an existing certificate, unless it be clearly shown that the public convenience and necessity would be materially promoted thereby.

The principles are well settled for judicial review of Commission orders granting certificates of public convenience and necessity under this provision. The applicant has the burden of clearly showing that the public convenience and necessity would be materially promoted by the issuance of a certificate to it. The orders of the Commission and of other administrative bodies exercising discretionary authority are accorded great weight and will not be overturned in the absence of a showing that the administrative action is arbitrary and capricious. Upon judicial review, a court will not upset Commission orders unless, after looking at the evidence, it concludes that the Commission could not have reasonably concluded that the applicant has “clearly shown that the public convenience and necessity would be materially promoted” and that the Commission’s action was therefore arbitrary and capricious. Florane v. Louisiana Public Service Commission, 433 So.2d 120 (La.1983); Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission, 396 So.2d 1265 (La.1981).

The record reflects that, at the original hearing on September 1, 1981, Well-Vac presented the testimony of three supporting witnesses. The first was Mr. Robert Cornell, the secretary/treasurer of Drew Cornell, Inc., a Lafayette-based independent producer and consultant in the oil and gas industry. Mr. Cornell testified that Drew Cornell regularly requires the services of vacuum trucks to transport salt water and drilling mud in the southwest Louisiana area. He stated that, although he is not personally responsible for obtaining transportation during normal operations, he does acquire vacuum trucks on an emergency basis. The certified vacuum truck services with which Mr. Cornell was familiar are Holston, Guillory and Pru-dhomme. • He testified that he did not know whether Drew Cornell had utilized any of the other carriers. When asked if the carriers with whom Drew Cornell dealt had provided adequate service, Mr. Cornell’s response was, “Yes.” His testimony about alleged service failures consisted merely of vague references to difficulty obtaining a truck “from time to time.” He was unable to provide documentary evidence of these failures or give specific instances or dates.

Well-Vac’s second supporting witness was Mr. Carl Martin, a production foreman employed by Conoco, Inc.

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Bluebook (online)
442 So. 2d 1124, 1983 La. LEXIS 12332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/louisiana-tank-v-louisiana-public-service-commission-la-1983.