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08/18/2017 09:09 AM CDT




                                                           - 105 -
                                  Nebraska Supreme Court A dvance Sheets
                                          297 Nebraska R eports
                               IN RE PETITION OF GOLDEN PLAINS SERVS. TRANSP.
                                               Cite as 297 Neb. 105




                                 In  Petition of Golden Plains Services
                                        re
                                          Transportation, Inc.
                              Golden Plains Services Transportation, Inc.,
                                doing business as GPS Transportation,
                                    appellant, v. Nebraska P ublic
                                     Service Commission, appellee.
                                                       ___ N.W.2d ___

                                             Filed June 30, 2017.    No. S-16-734.

                1.	 Administrative Law: Statutes: Appeal and Error. The meaning and
                    interpretation of statutes and regulations are questions of law for which
                    an appellate court has an obligation to reach an independent conclusion
                    irrespective of the decision made by the court below.
                2.	 Administrative Law. Generally, for purposes of construction, a rule or
                    order of an administrative agency is treated like a statute.
                3.	 ____. Absent a statutory or regulatory indication to the contrary, lan-
                    guage contained in a rule or regulation is to be given its plain and ordi-
                    nary meaning.
                4.	____. A regulation is open for construction only when the lan-
                    guage used requires interpretation or may reasonably be considered
                    ambiguous.
                5.	 Public Service Commission: Administrative Law. The plain lan-
                    guage of 291 Neb. Admin. Code, ch. 3, § 010.01C (2003), does not
                    explicitly limit open class carriers to providing only prearranged serv­
                    ices, nor does it explicitly restrict open class carriers from providing
                    on-demand services.

                 Appeal from the Public Service Commission. Reversed and
               vacated.
                 Jack L. Shultz, of O’Neill, Heinrich, Damkroger, Bergmeyer
               & Shultz, P.C., L.L.O., for appellant.
                              - 106 -
           Nebraska Supreme Court A dvance Sheets
                   297 Nebraska R eports
         IN RE PETITION OF GOLDEN PLAINS SERVS. TRANSP.
                         Cite as 297 Neb. 105

   Douglas J. Peterson, Attorney General, and L. Jay Bartel
for appellee.
   Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and
K elch, JJ.
  K elch, J.
                      NATURE OF CASE
   This case requires the court to determine whether 291 Neb.
Admin. Code, ch. 3, § 010.01C (2003) (Rule 010.01C), limits
“open class” carriers to providing only prearranged transporta-
tion or whether they may also operate on a for-hire basis.
                              FACTS
   Golden Plains Services Transportation, Inc. (Golden Plains),
is a Nebraska carrier certified to provide open class services.
In or before December 2015, the Nebraska Public Service
Commission (Commission) received information that Golden
Plains might have been operating “on a taxi basis” in its
operations. Thereafter, the Commission sent a letter to Golden
Plains, informing Golden Plains that it must immediately cease
and desist all taxi service operations. Golden Plains then filed a
motion for a declaratory ruling on the scope of services it could
provide as an open class carrier.
   Under 291 Neb. Admin. Code, ch. 1, § 019.05 (1992),
“[i]f a petition for declaratory ruling presents a question of
statewide commercial importance or such is noted during or
after hearing on the petition, the Commission shall not issue a
declaratory ruling but will resolve such question in an inves-
tigative proceeding.” In an order entered April 19, 2016, the
Commission found that Golden Plains’ petition presented a
question of statewide commercial concern and that it must
be resolved through an investigative proceeding rather than a
declaratory ruling.
   After an investigation, the Commission entered an order
releasing its interpretation of Rule 010.01C. Interpreting the
rule, the Commission found that “open class carriers may
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
              IN RE PETITION OF GOLDEN PLAINS SERVS. TRANSP.
                              Cite as 297 Neb. 105

provide transportation to passengers for hire on a prearranged
basis only,” and may not “provide on-demand transportation
services to passengers for hire.” (Emphasis supplied.)
   Rule 010.01C provides:
     Open class service shall consist of all of the following
     elements: (i) the business of carrying passengers for hire
     by a vehicle, (ii) along the most direct route between the
     points of origin and destination or along a route under
     the control of the person who hired the vehicle and not
     over a defined regular route, (iii) at a mileage based or
     per trip fare.
   From the order interpreting Rule 010.01C, Golden Plains
appeals.
   Additional facts relating to the history of the “open class
service” definition are set forth in the discussion below.
                 ASSIGNMENTS OF ERROR
   Golden Plains assigns, combined and restated, that the
Commission erred (1) in finding that open class carriers can
provide only prearranged service and not on-demand service
and (2) in not applying “grandfathering” or “color of right”
principles to Golden Plains’ past service history.
                  STANDARD OF REVIEW
   Under Neb. Rev. Stat. § 75-136(2) (Cum. Supp. 2016), an
appellate court reviews an order of the Commission de novo
on the record.
   [1] The meaning and interpretation of statutes and regula-
tions are questions of law for which an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision made by the court below.1

 1	
      Shaffer v. Nebraska Dept. of Health & Human Servs., 289 Neb. 740,
      857 N.W.2d 313 (2014); Mahnke v. State, 276 Neb. 57, 751 N.W.2d 635
      (2008); Anderson Excavating Co. v. Neth, 275 Neb. 986, 751 N.W.2d 595
      (2008); Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728
      N.W.2d 570 (2007); Nebraska Liq. Distrib. v. Nebraska Liq. Cont. Comm.,
      272 Neb. 390, 722 N.W.2d 10 (2006).
                                     - 108 -
                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
              IN RE PETITION OF GOLDEN PLAINS SERVS. TRANSP.
                              Cite as 297 Neb. 105

                            ANALYSIS
   [2-4] Generally, for purposes of construction, a rule or order
of an administrative agency is treated like a statute.2 Absent
a statutory or regulatory indication to the contrary, language
contained in a rule or regulation is to be given its plain and
ordinary meaning.3 A regulation is open for construction only
when the language used requires interpretation or may reason-
ably be considered ambiguous.4
   Rule 010.01C provides:
      Open class service shall consist of all of the following
      elements: (i) the business of carrying passengers for hire
      by a vehicle, (ii) along the most direct route between the
      points of origin and destination or along a route under
      the control of the person who hired the vehicle and not
      over a defined regular route, (iii) at a mileage based or
      per trip fare.
   [5] Neither party contends that any portion of Rule 010.01C
is ambiguous. And the plain language of Rule 010.01C does
not explicitly limit open class carriers to providing only pre-
arranged services, nor does it explicitly restrict open class
carriers from providing on-demand services. Because there
is no language within the rule to support the Commission’s
interpretation that open class carriers are limited to prearranged
services only, we conclude that such an interpretation is clearly
erroneous.
   The Commission argues that the order releasing the rule
interpretation was within the scope of its authority under
Neb. Rev. Stat. § 75-118.01 (Reissue 2009), which authorizes
the Commission to determine the scope and meaning of a

 2	
      Chase 3000, Inc. v. Nebraska Pub. Serv. Comm., 273 Neb. 133, 728
      N.W.2d 560 (2007) (superseded by statute on other grounds as stated in
      Telrite Corp. v. Nebraska Pub. Serv. Comm., 288 Neb. 866, 852 N.W.2d
      910 (2014)); Stratbucker Children’s Trust v. Zoning Bd. of Appeals, 243
      Neb. 68, 497 N.W.2d 671 (1993).
 3	
      See Utelcom, Inc. v. Egr, 264 Neb. 1004, 653 N.W.2d 846 (2002).
 4	
      Id.
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                Nebraska Supreme Court A dvance Sheets
                        297 Nebraska R eports
              IN RE PETITION OF GOLDEN PLAINS SERVS. TRANSP.
                              Cite as 297 Neb. 105

regulation. In support of this argument, it cites In re Proposed
Amend. to Title 291.5 In that case, the Commission had released
orders defining the terms “limousine” and “limousine service,”
which were used but not defined in the Commission’s motor
carrier rules. A limousine company appealed the orders, alleg-
ing that the Commission acted outside its authority by creating
new rules without following the procedures required under the
Administrative Procedure Act. However, we concluded that the
Commission was not creating new rules, but “interpret[ing]
existing rules and regulations pursuant to its authority under
§ 75-118.01.”6
   The Commission’s reliance on In re Proposed Amend. to
Title 291 is misplaced. In that case, we found that § 75-118.01
authorized the Commission to interpret the terms “limousine”
and “limousine service” as they were used within the regula-
tion at issue. Here, however, the Commission is not defining
any term or interpreting any language within Rule 010.01C.
Instead, it effectively created a new regulation by reading a
meaning into the regulation that had no terms or language to
support it.
   Since the plain language of Rule 010.01C clearly does not
restrict open class service providers from providing on-demand
services, we need not rely on the history of the rule. But, here,
we note that the Commission’s previous interpretation of the
rule is inconsistent with the interpretation set forth in the order
at issue in this appeal.
   On February 5, 2002, when the Commission adopted the
definition of “open class service” that is codified in Rule
010.01C, it stated in a comment below the definition:
         No commenter expressly opposed this amendment. . . .
      Again, the Commission has provided for trips by an open
      class service provider that are made by a “prearranged

 5	
      In re Proposed Amend. to Title 291, 264 Neb. 298, 646 N.W.2d 650
      (2002) (superseded by statute on other grounds as stated in Telrite Corp. v.
      Nebraska Pub. Serv. Comm., 288 Neb. 866, 852 N.W.2d 910 (2014)).
 6	
      Id. at 309, 646 N.W.2d at 659.
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               Nebraska Supreme Court A dvance Sheets
                       297 Nebraska R eports
             IN RE PETITION OF GOLDEN PLAINS SERVS. TRANSP.
                             Cite as 297 Neb. 105

      fare contract” and/or on a demand basis. The Commission
      believes that this would grant carriers the flexibility to
      provide transportation service on a prearranged basis and
      demand basis, while, at the same time, widening the dis-
      tinction between open class and taxicab service.
The above comments show that at the time Rule 010.01C was
adopted, the Commission interpreted it to allow open class car-
riers to provide services on a prearranged or on-demand basis.
   Moreover, the Commission has shown that when it wants
to limit service providers to prearranged services only, it has
done so. For example, Neb. Admin. Code, ch. 3, § 010.01B,
now defines “limousine service” as “(i) the business of carry-
ing passengers for hire by a vehicle, (ii) along a route under
the control of the person who hired the vehicle and not over
a defined regular route, (iii) on a prearranged and not on a
demand basis.” (Emphasis supplied.) That the Commission
did not add such limiting language to the definition of “open
class service” is an unambiguous expression of its intent not to
restrict open class service providers in this manner.
   Although the current rules allow the Commission to restrict
the authority granted to certain providers on a case-by-case
basis when such restriction is deemed “necessary and reason-
able and in the public interest,”7 the Commission may not
restrict all open class service providers by reading a restric-
tion into Rule 010.01C that is not there. To do so would
allow the Commission to create a new rule without comply-
ing with the rulemaking obligations under the Administrative
Procedure Act.
                         CONCLUSION
   Because the Commission’s interpretation is not supported by
the language of Rule 010.01C, we reverse and vacate the order
releasing the Commission’s interpretation of such rule.
                                      R eversed and vacated.
   Funke, J., not participating.

 7	
      See 291 Neb. Admin. Code, ch. 3, § 010.02A (2003).
