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McGree Corp. v. Montana Public Service Commission

Supreme Court of Montana

April 2, 2019

MCGREE CORPORATION and REPUBLIC SERVICES OF MONTANA, Petitioners and Appellants,
v.
MONTANA PUBLIC SERVICE COMMISSION, Respondent and Appellee, And L&L SITE SERVICES, INC., Intervenor and Appellee.

          Submitted on Briefs: January 9, 2019

          Appeal From District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause No. DV-16-155 Honorable Kurt Krueger, Presiding Judge

          For Appellants: Kyle A. Gray, Brianne C. McClafferty, Holland & Hart LLP, Billings, Montana Jacqueline Papez, Doney Crowley P.C., Helena, Montana

          For Appellee Montana Public Service Commission: Justin Kraske, Jeremiah Langston, Montana Public Service Commission, Helena, Montana

          For Intervenor and Appellee L&L Site Services, Inc.: Alison Garab, Western Roots Law, PLLC, Belgrade, Montana Dennis Lopach, Dennis R. Lopach, PC, Helena, Montana

          BETH BAKER JUDGE.

         ¶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 with 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.

         ¶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 ...


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