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IN RE PETITION OF GOLDEN PLAINS SERVS. TRANSP.

Cite as 297 Neb. 105

In re Petition of Golden Pla

Transportation

Golden Plains Services Transport

doing business as GPS Trans

appellant, v. Nebraska Pu

Service Commission, app

___ 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, language contained in a rule or regulation is to be given its plain and ordinary meaning.

4. ____. A regulation is open for construction only when the language used requires interpretation or may reasonably be considered 

ambiguous.

5. Public Service Commission: Administrative Law. The plain language of 291 Neb. Admin. Code, ch. 3, § 010.01C (2003), does not 

explicitly limit open class carriers to providing only prearranged services, 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

08/11/2017 09:07 AM CDT
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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,

Kelch, J

Kelch, 

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 transportation 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 investigative 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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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 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.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).
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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 reasonably 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 prearranged 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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IN RE PETITION OF GOLDEN PLAINS SERVS. TRANSP.

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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, alleging 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 regulation 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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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 distinction 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 carriers 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 carrying 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 reasonable and in the public interest,”7

 the Commission may not 

restrict all open class service providers by reading a restriction into Rule 010.01C that is not there. To do so would 

allow the Commission to create a new rule without complying 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.

Reversed and vacat

Funke, J., not participatin

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