Steere Tank Lines, Inc. v. Interstate Commerce Commission and United States of AmericaSteere Tank Lines, Inc. v. Interstate Commerce Commission and United States of America
Petitioner Steere Tank Lines, Inc. (Steere) seeks review of an Interstate Commerce Commission order granting intervenor VTS Trucking (VTS) a certificate of public convenience and necessity to operate as a common carrier over irregular routes between points in thirteen western and southwestern states. We affirm the ICC’s license grant.
On November 12,1980, VTS applied for a certificate of public convenience and necessity authorizing it to operate as a motor common carrier to transport petroleum and *104 petroleum products between points in Washington, Oregon, California, Nevada, Idaho, Montana, Wyoming, Utah, Colorado, Arizona, New Mexico, Oklahoma and Texas. Several carriers already licensed to operate in the proposed territory opposed the application. 1 At least two of the carriers, including Steere, argued, inter alia, that VTS had not shown itself to be properly equipped to provide the proposed service because it had only one terminal facility and a limited number of trucks. The application was granted over the оbjections of the opposing carriers by order served March 12, 1981. Only Steere sought administrative review of the order. The review was denied and Steere apрeals to this Court. It claims that the Commission erred in finding VTS fit, willing, and able to perform the granted service because VTS “admittedly does not presently have the terminals or thе motor vehicle equipment with which to perform that service.”
By passage of the Motor Carrier Act of 1980, Congress modified past provisions of the Interstate Commerce Act for entry into regulated transportation by motor vehicle. This Court’s recent decision in
American Trucking Associations, Inc. v. ICC,
Steere contends that the Review Board found VTS did not presеntly have the equipment to perform the proposed service (and that there is no evidence that VTS intended to purchase any additional equipment), but, that such a finding was considered immaterial. The relevant portion of the Board’s opinion is as follows:
Finally, protestants challenge applicant’s fitness to рerform the proposed service noting that applicant operates only one terminal. However, applicant’s present lack of terminals or equipment is not in and of itself reason to deny authority to provide the considered service in view of the demonstrated need for it. Compare Graham Contract Application, 73 MCC 769, 771 (1957) . . .
We find:
Performance by applicant of the service described in the appendix will serve a useful public purpose, responsive to public demand or need. Apрlicant is fit, willing, and able properly to perform the granted service and to conform to the the requirements of Title 49, Subtitle 4, U.S.C., and the Commission’s regulations...
The I. C. C. denies thаt the Board found VTS ill equipped to perform the proposed service. It gives a different interpretation of the Board’s language. It claims that the Board was merely noting that a present lack of equipment to meet all potential demand within the involved territory in and of itself is no reason to deny authority in view of the demonstrated need for the service. The Graham case, cited by the Board, while not direct authority for this proposition, provides some support for the I. C. C.’s position. In Graham the Commission held a carrier’s lack of terminals is not to be considered conclusive of his ability to meet the shipper’s requirements. Hence, the Board cоuld well have meant that a large number of terminals was not necessary to perform the contemplated service. While the question presented here is a close one, we find the Board’s conclusion that VTS is fit, willing and able to perform the proposed service, is not based ,on the erroneous assumption that а lack of equipment to perform that service is immaterial.
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The next issue confronting us is-whether the Board’s conclusion is supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It is something less than the wеight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.
See, Refrigerated Transport Company, Inc. v. I.C.C.,
VTS’s application states that it already transports petroleum and petroleum products in the thirteen-state territory for its cоrporate parent, McAuley Oil Company, pursuant to the intercorporate hauling provisions of
In addition, VTS presented evidence that it owned sixteen tractor trailеrs “specifically designed to properly handle the transportation requirements of the supporting shippers,” and that it already uses this equipment to carry petroleum and petroleum products under its intercorporate hauling authority. It states that it stores and maintains the equipment at its terminal in Signal Hill, California, and at various customer facilities and product source facilities (thus, eliminating the need for additional terminals). VTS claims that it employed this operational procedure in transporting waste products in government traffic nationwide and has found it to be effective and efficient. In addition, the supporting shippers stated that they believed VTS was able to meet their needs. They also indicated that they had reviewed and were satisfied with VTS’s equipment.
Steere contends that unless VTS can demоnstrate that it is fit, willing, and able to transport petroleum and petroleum products for a representative amount of the total traffic in the proposed territory that it cannot receive common carrier certification. It claims that the traffic available from the supporting shippers is only a very small рortion of that total. Steere’s argument, however, is based upon an erroneous interpretation of the common carrier’s duty. A common carrier is free to carve out as large or as small a nitch as it feels appropriate.
Pennsylvania Railroad v. Puritan Coal Mining Co.,
Hence, we believe that VTS has presented substantial evidence from which the Review Board could conclude that VTS is fit, willing, and able to perform the granted service.
AFFIRMED.
Notes
. The opposing carriers were Groendyke Transport, Inc., John Bunning Transport Company, Inc., North Northern Tank Lines, Steere Tank Lines, Inc. and Ward Transport, Inc.
. It may be enough that the applicant is willing and has the financial resources to obtain the equipment since it would not be prudent business practice for a carrier to open new terminals and buy additional equipment before it knows whether the authority it seeks will be granted.