III. CONCLUSION

For the reasons stated above, D.07-07-040 is modified to: (1) clarify the basis for not applying the doctrines of res judicata and judicial estoppel; (2) eliminate language that suggests the Decision asserts jurisdiction over crude oil companies who are not parties to this proceeding; (3) clarify the basis for finding that Assoc. Pipe Line is not controlling; (4) clarify certain findings of fact; and (5) add an ordering paragraph directing Shell to file tariffs for its third party contracts. Rehearing of D.07-07-040, as modified, is denied. In addition, we deny the request for oral argument.

Therefore IT IS ORDERED that:

1.D.07-07-040 is modified as follows:

a. Page 23, FOF 5 is modified to state:

"Defendants market excess capacity of the 20" Pipeline to other oil producers in the San Joaquin Valley and to Bay Area refineries."

b. Page 24, FOF 7 is modified to state:

"Shell moves crude oil from the San Joaquin Valley to the Bay Area refineries, and receives compensation under the buy/sell agreements for the transportation service it provides."

c. Page 10, first full paragraph, third sentence is modified to read:

"As discussed more fully below, res judicata and collateral estoppel bar a party in one case from re-asserting the same claim in a subsequent action between the same parties; and judicial estoppel prevents a party from "asserting a position in a legal proceeding that is contrary to a position previously taken in the same or earlier proceeding." (footnote included)

d. Page 16, is modified to delete the first full paragraph, and restate the second full paragraph continuing to p. 17 to state:

"In its narrowest aspect, res judicata precludes parties or their privies from relitigating a cause of action finally resolved in a prior proceeding. Collateral estoppel, which is sometimes referred to as a broader form of res judicata, "may preclude a party to a prior litigation from redisputing issues therein decided, even when those issues bear on different claims raised in a later case." Vandenberg v. Superior Court (1999) 21 Cal.4th 815. Judicial estoppel prevents a party from asserting contrary positions in different legal proceedings. The public policy behind these doctrines is to encourage judicial efficiency. However, even if the elements of these doctrines are satisfied in this proceeding, we believe circumstances warrant our exercise of discretion to not apply the doctrines. In particular, it is relevant that this Commission was not a party to the prior action where the court considered whether the Pipeline was subject to Commission regulation. Yet, this Commission is the California agency vested with exclusive jurisdiction over public utilities, and is uniquely suited to determine whether the Pipeline should be subject to Commission jurisdiction. To the extent we were precluded from considering that matter previously, we should consider it now. Further, we note that judicial estoppel is usually invoked only where a party has misrepresented or concealed material facts. There is no evidence in this proceeding that Chevron has acted in that manner."

e. Page 25, COL 4 is modified to state:

"Res judicata and collateral estoppel prevent a party in a prior litigation from re-litigating lost claims or issues in subsequent proceedings between the same parties."

f. Page 25, COL 5 is modified to state:

"We exercise our discretion as a decisionmaker not to apply res judicata or collateral estoppel to bar Chevron's complaint."

g. Page 26, COL 6 is modified to state:

"Chevron's complaint is not barred by judicial estoppel because there is no evidence that Chevron has misrepresented or concealed material facts."

h. Page 11, Section 7, first full paragraph, forth sentence is modified to state:

"The California Supreme Court found that the company was not subject to Commission jurisdiction because it transported crude oil only to itself or its affiliates."

i. Page 21, first full paragraph to state:

"In holding that PG&E v. Dow Chemical is more applicable here, we necessarily decline to rely on Assoc. Pipe Line. Assoc. Pipe Line found that the company was not subject to Commission jurisdiction because it transported crude oil only to itself and/or its affiliates. Assoc. Pipe Line does not apply here because nothing in that case mentions sales documents, third party transactions, buy/sell agreements, or the relevance of holding title to the crude oil in the pipeline. The facts here are more analogous to U.S. v. Ohio Oil because Shell controls the only heated crude oil pipeline from the San Joaquin Valley to the Bay Area and it not only carries its own crude oil, but that of any other producer wanting to move its crude oil by that means."

j. Page 25, FOF 19 is modified to state:

"In Assoc. Pipe Line, the California Supreme Court found that the company was not subject to Commission jurisdiction because it transported crude oil only to itself and/or its affiliates."

k. Page 14, second paragraph is modified to state:

"Nevertheless, while economics may drive this case, the complaint alleges a legitimate jurisdictional question, and we are obligated to consider whether we should assert jurisdiction over Equilon and Shell with respect to the 20" Pipeline."

l. Page 23, FOF 5 is modified to state: