(dissenting).
I would reverse the circuit court and uphold the Public Utilities Commission. Therefore, I dissent.
We have before us a classic illustration of a circuit judge not giving deference to the Commission’s factual findings. Deference must be given under our holding in Matter of Midwest Motor Exp., Inc., Bismarck, 431 N.W.2d 160 (S.D.1988). Janeo met its burden of proof on the factual issue of public convenience and necessity. The circuit court is required by state statute to give great weight to the PUC’s factual findings. It failed to do so. SDCL 1-26-36.
The trial court’s words truly reflect its errant “scope of review” approach:
The court finds that the record more closely supports the proposed findings of the Administrative Law Judge than it does the decision of the Commission.
The test is not if the record “more closely supports” the proposed decision of the Administrative Law Judge. Rather, the test is if there is substantial evidence in the record to support the Commission’s decision. Midwest Motor Exp., supra. There was substantial evidence to support the issuance of these permits. See, Schlenker v. Boyd’s Drug Mart, 458 N.W.2d 368, 371 (S.D.1990).