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NO. 89-492
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990

STATE ex rel. H. R. ROBERTS and ELIZABETH ROBERTS, d/b/a H. R. ROBERTS & SONS, INC.,
Relators and Appellants,

PUBLIC SERVICE COMMISSION OF
THE STATE OF MONTANA,
Respondent and Respondent,
and
WATKINS AND SHEPARD TRUCKING, INC.,
Intervenor and Respondent.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:
For Appellants:

W. William Leaphart argued, Helena, Montana

For Respondents: C;; Robin McHugh argued, Helena, Montana
C .,
i. -I
Stanley T. Kaleczyc argued, Helena, Montana

Submitted: March 13, 1990
Decided: April 13, 1990

9
Chief Justice J. A. Turnage delivered the Opinion of the Court.

H. R. Roberts and Sons appeals from an order of the First
Judicial District Court, Lewis and Clark County, denying the
appellant's petition for declaratory judgment and writ of mandamus.
We affirm.

ISSUES

1.
Did the District Court err in holding that B 69-12-324 (2), MCA, does not provide an exemption for all Class C carriers operating under government contracts?

2.
Did the District Court err in not holding that the Montana
Procurement Act preempts the Public Service Commission public
convenience and necessity hearing requirement for the winner of a
competitive bid, state contract?


3.
Did the District Court err in holding that 5 69-12-324, MCA, does not deny equal protection when it allows state contracted solid waste carriers to obtain certificates without a public convenience and necessity hearing while requiring state contracted commodities carriers to go through the hearing process?


FACTS AND PROCEDURE

Appellant H. R. Roberts and Sons [hereinafter Roberts] underbid intervenor Watkins & Shepard Trucking, Inc. [hereinafter Watkins], by $150,000 on a statewide, three-year contract to haul United States Department of Agriculture surplus commodities forthe Montana Office of Public Instruction [hereinafter OPI] school lunch
program. Watkins held the contract for the previous nine years and
was the only carrier in Montana with the requisite USDA Commodities
Class C certificate. Roberts held a Class C certificate, but under
Public Service Commission [hereinafter PSC] procedure, could not
obtain a USDA commodities endorsement until it had a commodities
contract.

The OPI awarded Roberts the contract on June 16, 1989, on condition that Roberts obtain the USDA commodities endorsement by August 1. Roberts immediately applied to the PSC arguing that 5 69-12-324, MCA, exempted all government contracted Class C carriers from the requirement of a public convenience and necessity hearing. The PSC refused to exempt Roberts. The agency inter- preted

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Montana Law