Steere Tank Lines, Inc., Petitioner, v. Interstate Commerce Commission and United States of America,respondents, 703 F.2d 927 (5th Cir. 1983)

The petitioner, Steere Tank Lines, Inc., joined by Groendyke Transport, Inc., intervening petitioner, seeks review of an Interstate Commerce Commission order granting intervenor Cactus Transport, Inc. a certificate of public convenience and necessity to operate as a common carrier over irregular routes between points in Texas, New Mexico, Kansas, Oklahoma, Arkansas, and Colorado. We conclude that the Commission's order was neither arbitrary nor capricious and that it was based on substantial evidence. We affirm.

Cactus, a small intrastate carrier based in Texas, currently provides bulk service hauling petroleum and petroleum products between points within Texas using a fleet of eight truck tractors and seven tank trailers. On January 8, 1982, Cactus applied for a certificate of public convenience and necessity authorizing it to operate as a motor common carrier to transport petroleum and petroleum products between points in Texas, New Mexico, Kansas, Oklahoma, Arkansas, and Colorado. The application was supported by affidavits from seventeen shippers (of whom at least fourteen were using and were satisfied with Cactus' intrastate services), each stating that it needed Cactus' services interstate and would tender it business as soon as a certificate was issued. The application was approved May 14, 1982 by a three member Review Board, and affirmed by a division of three Commissioners, July 23, 1982.¹  Pursuant to 28 U.S.C. §§ 2321, 2341-2349, this appeal was taken.

Below and here, protestants-appellants Steere and Groendyke urge in their respective briefs (1) that the statewide operating authority granted Cactus for Texas and New Mexico was not based on substantial evidence since, in their view, the present and future Texas and New Mexico activities of the supporting shippers appear to be concentrated within the fairly limited geographic region comprising the Texas Panhandle and bordering counties of New Mexico, and (2) that Cactus failed to present adequate factual findings regarding Cactus' financial fitness to conduct the proposed operations.

Under the Motor Carrier Act of 1980, a carrier seeking a certificate of public convenience and necessity must show (1) that it is "fit, willing, and able" to perform the proposed services; and (2) that "the service proposed will serve a useful public purpose, responsive to a public demand or need"; if the Commission finds that the carrier has made a prima facie showing to such effect, it will grant the certificate, unless protesting carriers show that "the transportation to be authorized by the certificate is inconsistent with the public convenience and necessity." 49 U.S.C.A. Sec. 10922(b) (1) (West Supp.1982).²  Steere Tank Lines, Inc. v. I.C.C., 687 F.2d 104, 105 (5th Cir. 1982) (Steere II) ; Steere Tank Lines, Inc. v. I.C.C., 675 F.2d 103, 104 (5th Cir. 1982) (Steere I) ; American Trucking Associations, Inc. v. I.C.C., 659 F.2d 452, 469-70 (5th Cir. 1981), clarified and enforced through mandamus, 669 F.2d 957, 963 (5th Cir. 1982), cert. denied --- U.S. ----, 103 S. Ct. 1272, --- L. Ed. 2d ---- (U.S.1983).

Our review on appeal is limited to determining whether the Commission's conclusions were "arbitrary, [or] capricious, an abuse of discretion, ... not in accordance with law, ... [or] unsupported by substantial evidence." Administrative Procedure Act, Sec. 10(e) (2), 5 U.S.C. § 706(2). If the Commission's findings are "grounded on 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion' ", they must be upheld. Steere II, supra, 687 F.2d at 105 (quoting Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)); Steere Tank Lines, Inc. v. I.C.C., 694 F.2d 413, 418 (5th Cir. 1982) (Steere III) .

Our own review of the seventeen supporting shipper affidavits submitted by Cactus indicates that sufficient evidence was presented to support the Commission's conclusion that the " [a]pplicant [Cactus] has demonstrated a need for service throughout substantial portions of the territory sought", in what is "essentially an extension of the service it provides to shippers within the State of Texas." When viewed as a whole, we cannot conclude that the carefully drawn four-state-nonradial/two-state-radial authority granted to Cactus was arbitrary, capricious or not supported by substantial evidence. More than forty points scattered among the four-state area covered by the grant of nonradial authority were specifically mentioned by shippers, many of whom stated that such points were to be understood as a representative sampling, and not an exhaustive listing, of current shipping it would tender Cactus once it had obtained Commission certification.³  While the specific evidentiary basis for granting nonradial operating authority to Cactus within all of New Mexico may seem somewhat thin when viewed in isolation, we cannot conclude that the Commission exceeded its broad discretion. As we recently stated:

The fact that two different conclusions could be drawn from the evidence does not prevent the agency's finding from being supported by substantial evidence. As long as the ICC considers relevant factors and articulates a rational connection between the facts found and the choice made, the decision is not arbitrary or capricious [citations omitted].

J.H. Rose Truck Line, Inc. v. I.C.C., 683 F.2d 943, 948 (5th Cir. 1982).

We likewise reject the protestants' argument that Cactus failed to make a showing adequate to sustain a finding of financial fitness. While it is true that a specific financial information requirement has been eliminated from the Commission's present application procedure⁴  (although 49 U.S.C. § 10922(b) (1) retains the former requirement that the applicant is "fit, willing, and able" to provide the service), Cactus' two and a half years of successful intrastate operations, its fleet and facilities, provided a more than adequate evidentiary basis for the Commission's findings that Cactus' statutorily required "fitness is adequately demonstrated by its past bulk petroleum service within Texas"--for the new certificate's authority merely provided a more extended territorial basis within which for Cactus to perform similar services, with the Commission-noted availability of Cactus' equipment to do so.

As we stated in rejecting similar contentions in Steere II, since the applicant:

has fifteen pieces of equipment (truck tractors and trailers) with which to perform the proposed service ... [and] it is already engaged in the petroleum hauling business between points in Texas ..., [the appellant's] argument that [the applicant] was not properly found to be fit, willing, and able ... verges on the frivolous. See Steere [I, supra ] ("fit, willing and able" determination upheld for company that operated sixteen trucks from one terminal); cf. American Trucking [supra, 659 F.2d at 473] (negative implication that carrier already having tank trucks and experienced in their proper use is virtually automatically "fit, willing, and able" to serve public for such loads), clarified and enforced through mandamus, 669 F.2d 957 (1982).

Steere II, supra, 687 F.2d at 106.

Conclusion

Accordingly, the order of the Commission is AFFIRMED.

AFFIRMED.