Mcgree Corp. v. Mont. Pub. Serv. Comm'n

2019 MT 75, 438 P.3d 326, 395 Mont. 229
CourtMontana Supreme Court
DecidedApril 2, 2019
DocketDA 18-0230
StatusPublished
Cited by5 cases

This text of 2019 MT 75 (Mcgree Corp. v. Mont. Pub. Serv. Comm'n) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mcgree Corp. v. Mont. Pub. Serv. Comm'n, 2019 MT 75, 438 P.3d 326, 395 Mont. 229 (Mo. 2019).

Opinion

Justice Beth Baker delivered the Opinion of the Court.

***233¶1 McGree Corporation and Republic Services of Montana petitioned the Second Judicial District Court, Butte-Silver Bow County, to review the Public Service Commission's final order granting L&L Site Services, Inc.'s application for a Class D motor carrier certificate of public convenience and necessity. The District Court affirmed the Commission's final order, holding that the Commission properly considered competition in determining whether public convenience and necessity required the authorization of additional garbage collection service. McGree and Republic appeal. We affirm on each of the following restated issues:

1. Whether the Commission properly considered competition in determining public convenience and necessity under § 69-12-323(2), MCA ;
2. Whether substantial evidence supported the Commission's decision to grant a Class D permit to L&L; and
3. Whether the Commission should have engaged in rulemaking under the Montana Administrative Procedure Act (MAPA) before adopting a new standard.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 L&L Site Services, Inc., is a waste-hauling business operating in Montana. It has had a limited Class D certificate since 2007 to haul construction debris in Gallatin County and in those parts of Madison County within twenty miles of Big Sky, Montana. The Commission denied an application from L&L in 2011 to expand its operation into general residential and commercial garbage hauling. L&L filed another application for a full Class D certificate on May 20, 2015, to provide service throughout both Gallatin and Madison Counties.

¶3 The Commission published notice of L&L's second application to expand into commercial and residential garbage hauling in July 2015. McGree and Republic filed protests *328with the Commission against the application. McGree holds a Class D certificate to haul garbage within an eighty-mile radius of Whitehall, Montana. Republic hauls garbage in Gallatin and Madison Counties under a Class D certificate.

¶4 Before the hearing on the petition, the parties stipulated that L&L is fit to provide the proposed service. The Commission held a three-day hearing in November 2015 to hear testimony regarding public convenience and necessity. L&L presented eleven witnesses in support of its petition-nine of whom were "shippers" or customers. Republic presented nine witnesses in opposition. McGree presented no witnesses.

***234¶5 After post-hearing briefing, the Commission, on a 3-2 vote, approved L&L's application for all of Gallatin County, but limited the permit for Madison County to places accessible from Highway 64 serving the Big Sky, Moonlight Basin, and Yellowstone Club areas. The Commission issued its final order in March 2016. McGree and Republic filed a timely Petition for Judicial Review with the District Court. Following briefing and oral argument on the petition, the District Court affirmed the Commission's final order in December 2017. Additional relevant facts are discussed below.

STANDARDS OF REVIEW

¶6 "In an administrative appeal, we apply the same standards of review that the district court applies." Nw. Corp. v. Mont. Dep't of Pub. Serv. Regulation , 2016 MT 239, ¶ 25, 385 Mont. 33, 380 P.3d 787. Section 2-4-704, MCA, governs administrative appeals. An agency's interpretation of a statute is a conclusion of law that we review de novo. Nw. Corp. , ¶ 25. We review its findings of fact for clear error. Nw. Corp. , ¶ 25.

¶7 The court may reverse or modify an agency decision if the "substantial rights of the appellant" were prejudiced because the administrative findings are "in violation of ... statutory provisions," "made upon unlawful procedure," "affected by other error of law," "clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record," or "arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Section 2-4-704(2)(a)(i), (iii), (iv), (v), (vi), MCA.

¶8 "The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." Section 2-4-704(2), MCA. "A finding of fact is clearly erroneous if it is not supported by substantial evidence in the record, if the fact-finder misapprehended the effect of the evidence, or if a review of the record leaves the court with a definite and firm conviction that a mistake has been made." Williamson v. Mont. Pub. Serv. Comm'n , 2012 MT 32, ¶ 25, 364 Mont. 128, 272 P.3d 71.

DISCUSSION

¶9 1. Whether the Commission properly considered competition in determining public convenience and necessity under § 69-12-323(2), MCA.

¶10 The disagreement between the parties centers on when the Commission may consider competition in determining whether public ***235convenience and necessity requires the granting of an application for a Class D motor carrier certificate. McGree and Republic maintain that the Commission may not consider competition until after it has determined that there is a public need for the proposed services. They argue that this is because the statute favors maintenance of the existing service providers to ensure stable service. McGree and Republic point out that this Court determined in Baker Sales Barn, Inc. v. Mont. Livestock Comm'n , 140 Mont. 1, 10, 367 P.2d 775, 780 (1962), that "convenience and necessity are not synonymous." They argue that a desire for competition goes to convenience, not to necessity; therefore, the Commission must find that there is a public need for the additional proposed service before it can consider any potential benefits from competition.

¶11 McGree and Republic argue that our decision in Waste Management Partners of Bozeman, Ltd. v. Montana Department of Public Service Regulation , 284 Mont. 245,

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Cite This Page — Counsel Stack

Bluebook (online)
2019 MT 75, 438 P.3d 326, 395 Mont. 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgree-corp-v-mont-pub-serv-commn-mont-2019.