20091019Vol I Oral Argument.pdf

ORIGINAL.BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF IDAHO POWER COMPANY FOR
AUTHORITY TO MODIFY ITS RULE H
LINE EXTENSION TARIFF RELATED TO
NEW SERVICE ATTACHMENTS AND
DISTRIBUTION LINE INSTALLATIONS.
CASE NO. IPC-E-08-22
BEFORE
ORAL ARGUMENT
COMMISSIONER MARSHA SMITH (Presiding)
COMMISSIONER JIM KEMPTON
COMMISSIONER MACK REDFORD
.PLACE:Commission Hearing Room
472 West Washington Street
Boise, Idaho
DATE:October 13, 2009
VOLUME I - Pages 1 - 67
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CSB REPORTING
Constance S. Bucy, CSR No. 187
23876 Applewood Way * Wilder, Idaho 83676
[phone] * [phone]
Email csb~heritagewifi.com
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1 APPEARANCES
2
3 For the Staff:Ms. Kristine A. Sasser, Esq.
Deputy Attorney General
472 West Washington
Boise, Idaho 83720-0074
Ms. Lisa D. Nordstrom, Esq.
& Mr. Barton L. Kline, Esq.
Idaho Power Company
Post Office Box 70
Boise, Idaho 83707-0070
Mr. Scott D. Spears, Esq.
Ada County Highway District
3775 Adams Street
Garden City, Idaho 83714
GIVENS PURSLEY LLP
by Mr. Justin Fredin, Esq.
& Mr. Michael Creamer, Esq.
Post Office Box 2720
Boise, Idaho 83701
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6 For Idaho Power Company:
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For Ada County HighwayDistrict:
For Building Contractors
Association:
(Telephonically)
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APPEARANCES
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1 BOISE, IDAHO, TUESDAY, OCTOBER 13, 2009, 1:00 P. M.
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4 COMMISSIONER SMITH: Good afternoon,
5 ladies and gentlemen. This is the time and place set for
6 an oral argument before the Idaho Public Utilities
7 Commission on the Case No. IPC-E-08-22, further
8 identified as in the matter of the application of Idaho
9 Power Company for authority to modify its Rule H line
10 extension tariff related to new service attachments and
11 distribution line installments.
12 I think we have people here who may not be
13 familiar with us, so I'd like to introduce the
14 Commission. On my left is Commissioner Jim Kempton who
15 is also president of the Commission, and on my right is
16 Commissioner Mack Redford. I'm Marsha Smith and the
17 three of us are the Public Utili ties Commission who will
18 be hearing the arguments today and making a decision on
19 this matter. With that, we'll start with appearances
20 from the parties.
21 MR. SPEARS: My name is Scott Spears,
22 staff attorney for the Ada County Highway District.
23 COMMISSIONER SMITH: Mr. Spears. Oh, I
24 did forget one preliminary thing. If you're at the table.25 and intend to speak, you need to touch where it says
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1 "touch" and your little red light comes on and then your
2 speaker is activated so the room can hear you and the
3 court reporter can also record what you're saying.
4 MR. SPEARS: Shall I say that again?
5 COMMISSIONER SMITH: Certainly.
6 MR. SPEARS: For the record, Scott Spears,
7 staff attorney, Ada County Highway District.
8 COMMISSIONER SMITH: Thank you. For Idaho
9 Power.
10 MS. NORDSTROM: Lisa Nordstrom, attorney
11 for Idaho Power Company and seated with me here at the
12 table is Bart Kline.
13 COMMISSIONER SMITH: And for the
14 Commission Staff.
15 MS. SASSER: Kristine Sasser, attorney for
16 Commission Staff.
17 COMMISSIONER SMITH: I know there are
18 other parties who filed briefs and comments. Are there
19 any other appearances to be made on behalf of those
20 enti ties?
21 MR. FREDIN: Hello, Justin Fredin on
22 behalf of BCA, just entering our appearance today.
23
24 reason you choose not to sit at the table?
COMMISSIONER SMITH: Okay. Is there some
25 MR. FREDIN: We're not participating in
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1 the arguments today.
2 COMMISSIONER SMITH: All right, thank you.
3 MR. FREDIN: Thank you.
4 COMMISSIONER SMITH: Anyone else who needs
5 to make an appearance?
6 MR. CREAMER: Commissioner Smith, Michael
7 Creamer also representing Building Contractors. I
8 appreciate the courtesy of being allowed to participate
9 by telephone from Utah today.
10 COMMISSIONER SMITH: Well, we're very
11 happy to have you, Mr. Creamer. Do you plan to
12 participate in the argument or are you merely listening?
13 MR. CREAMER: Just listening in.
14 COMMISSIONER SMITH: Okay, then I won't
15 call on you in the ordinary course of things unless you
16 let me know that you have something to add.
MR. CREAMER: Very good.
COMMISSIONER SMITH: Thank you. We are
here today I thought it was important after I read
20 everyone's briefs and motions to clarify why we're here
21 today. We're here today as expressed in Order No. 30883
22 to address the allegations that the Commission lacks
23 statutory authority to approve the Rule H tariff, so the
24 reason this is not an evidentiary hearing, but an oral.25 argument, is because it's a legal issue, does the
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1 statutory and constitutional authority granted to the
2 Commission in how we exercise our duties allow us to do
3 this and I think that was the issue, Mr. Spears, that
4 your client raised.
5 MR. SPEARS: Yes, it was.
6 COMMISSIONER SMITH: Okay; so that's why
7 we're here today, to hear the legal arguments on that
8 issue. Keeping that in mind, are there any preliminary
9 matters that need to be brought up before we turn to Mr.
10 Spears for his argument? Ms. Nordstrom.
11 MS. NORDSTROM: Thank you.Idaho Power
12 filed a motion to strike portions of the affidavit of
13 Dorrell Hansen.
14 COMMISSIONER SMITH:I saw that.
15 MS. NORDSTROM: That is a preliminary
16 matter if you wish to address it now.
17 COMMISSIONER SMITH: Well, the way I would
18 address it, I hope with the concurrence of my fellow
19 Commissioners, is that motion will be denied, that the
20 affidavi t is filed as part of the argument and I think
21 the Commission is capable of reading it and giving it the
22 weight to which it' s entitled as it considers the issue
23 of whether we have jurisdiction, so that motion is
24 denied.
25 Mr. Spears.
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1 MR. SPEARS: Madam Chair, as you're well
2 aware, the Ada County Highway District had also filed a
3 motion to strike all or portions of written testimony
4 filed by Idaho Power and we' ii go through the motions, I
5 suppose. Thank you.
6 COMMISSIONER SMITH: As I noted earlier,
7 this is an oral argument on the legal issue. A week from
8 today at 9: 00 a. m. in this Hearing Room we will have an
9 evidentiary hearing on the issues we set up for
10 reconsideration at which time that testimony will be
11 presented, so if you wish to renew those motions at that
12 time, that would be the appropriate time when the
13 wi tnesses are here. They will be sworn and any
14 disagreements over what testimony actually should be
15 placed into the record can be heard by the Commission at
16 that time, so I would just say those motions are
17 premature at this time.
18 MR. SPEARS: Thank you, Madam Chair.
19 COMMISSIONER SMITH: You're welcome. Are
20 there any other issues, Commissioners or others? If not,
21 we'll start with you, Mr. Spears.
22 MR. SPEARS: Thank you, Madam Chair. If I
23 may before shall I give an opening statement, is that
24 customary?
25 COMMISSIONER SMITH: Yes, if you'd like to
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1 do that. Since you are the party that raised the issue
2 and we granted reconsideration, I felt that you should go
3 first and then we'll take the Company and the Staff if
4 they have an argument, any other parties that may wish
5 and then you will have the opportunity for closing.
6 MR. SPEARS: Okay, very well, then.
7 Knowing the procedure, I do have a couple of items that I
8 would like to refer to during my argument. May I
9 approach the Bench --
10 COMMISSIONER SMITH: Certainly.
11 MR. SPEARS: -- and provide those to the
12 Commission and opposing counsel?
13 COMMISSIONER SMITH: Certainly.
14 MR. SPEARS: Thank you.
15 (Mr. Spears distributing documents.)
16 MR. SPEARS: Madam Chair, for the record,
17 I would just like to note that I have handed the
18 Commission and opposing counsel and the Staff attorney
19 two pieces of paper. One is a Relocations Flowchart. It
20 was an Exhibit 7 to Idaho Power Commission's -- Idaho
21 Power Company's reply comments. Then the second item was
22 and is the Statement of Purpose and legislative language
23 of Senate Bill 1097 from last year's session.
24 COMMISSIONER SMITH: Thank you.
25 MR. SPEARS: Thank you. For the record,
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1 Scott Spears, Staff attorney, Ada County Highway
2 District. Rule H, Section 10 and applicable portions of
3 Rule H, Section 1 as modified by Idaho Power are
4 unauthorized use of the clear and exclusive jurisdiction
5 of Idaho's highway districts and public road agencies by
6 the Idaho Public Utilities Commission. To the extent
7 that Rule H, Section 10 and applicable portions of Rule
8 H, Section 1 are applicable to the state or any entity of
9 local government, including, but not limited to, public
10 road agencies and local improvement districts, is a
11 violation of the Idaho Constitution.
12 Rule H, Section 10 and applicable portions
13 of Rule H, Section 1 are also unconstitutional and
14 legally unauthorized abrogation or amendment of the
15 common law rule that utilities pay the cost of relocation
16 of their facilities wi thin the public rights of way.
17 ACHD hereby requests that the Idaho Public Utilities
18 Commission issue an order reversing its earlier decisions
19 and striking Rule H, Section 10 and applicable portions
20 of Rule H, Section 1.
21 COMMISSIONER REDFORD:What were those
22 numbers again?
23 COMMISSIONER SMITH: It's tab 3.
24 MR. SPEARS: And if I may proceed, the
25 Commission -- the commissioners of highway districts have
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1 been granted exclusive jurisdiction over all highways and
2 public rights of way. The Idaho Legislature has seen fit
3 to give highway districts exclusive jurisdiction and
4 supervision over all highways and public rights of way
5 wi thin their highway system and full power to establish
6 design standards and to establish use standards. This
7 exclusive jurisdiction is apparent in Idaho Code
8 40-1310 (1) and (8) wherein it is stated in part that the
9 commissioners of a highway district have exclusive
10 general supervision and jurisdiction over all highways
11 and public rights of way within their highway system,
12 with full power to construct, maintain, repair, acquire,
13 purchase and improve all highways wi thin their highway
14 system.
15 Subpart 8 of Idaho Code 40-1310 provides
16 in pertinent part that the board of highway district
17 commissioners shall have exclusive general supervisory
18 authority over all highway districts, public streets and
19 public rights of way within their jurisdiction with full
20 power to establish design standards and to establish use
21 standards, and I would also at this time refer the
22 Commission to Senate Bill 1097 which I provided earlier
23 and that was a new section of the Idaho Code, 40-210,
24 which specifically addressed the issue of utility
25 relocation and again emphasized in paragraph 5 that no
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1 other provision of this chapter shall diminish or
2 otherwise limit the authority of this state, highway
3 district or other poli tical subdivision having
4 jurisdiction over the public right of way.
5 Nothing in this chapter shall be construed
6 to limit, abrogate or supersede the provisions of the
7 applicable local ordinance or regulations governing the
8 use of the public right of way, so here again, in
9 addition to 40-1310, parts 1 and 8, we had a new
10 provision of Idaho Code, again, reiterating jurisdiction
11 by the highway districts, and what's unique about that
12 statute is that it specifically was addressing
13 relocations, and as I will touch further, it even goes so
14 far as to address the issue of funding for relocations,
15 and it squarely refers to the highway districts. It does
16 not in any fashion include the Public Utili ties
17 Commission in regard to jurisdiction.
18 Turning back to the Idaho Code, pursuant
19 to 40-1312 and confirmed in Worley Highway District v.
20 Kootenai County, the grant of authority of highway
21 districts must be liberally construed, and I would note
22 that in analyzing earlier provisions, earlier iterations
23 of those sections, the Court of Appeals in Worley Highway
24 District stated that this language makes the
25 legislature's intent clear that in the area of
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1 construction, maintenance and day-to-day operations of
2 the highways, the prerogative of the highway
3 commissioners is exclusive, and I would also point to the
4 Commission Idaho Code 40-1406 wherein it's stated that
5 wherever any provisions of existing laws of the State of
6 Idaho are in conflict with the provisions of this
7 chapter, the provisions of this chapter shall control and
8 supersede all such laws; therefore, when you tie all of
9 these provisions of the Idaho Code together, it's clear
10 that to the extent that any law of the State of Idaho is
11 in conflict with the highway districts' exclusive
12 jurisdiction over the public rights of way as granted by
13 these Code provisions that such laws are superseded by
14 these provisions of the Idaho law.
15 Therefore, Ada County Highway District has
16 exercised its exclusive jurisdiction to require public
17 utili ties to relocate their facilities located in public
18 rights of way when necessary and in this regard, Ada
19 County Highway District promulgated Resolution 330 in
20 which it has been effective for over 20 years and it
21 addresses specifically utility and sewer relocations in a
22 comprehensive fashion, including assignment of financial
23 responsibili ty and operational procedures under various
24 scenarios.
25 In Idaho it's been recognized by the Idaho
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1 Supreme Court that there is a common law rule in which
2 utili ties bear the expense of relocating their facilities
3 in public rights of way when necessary to make way for
4 the proper governmental use of streets. Resolution 330
5 was -- is consistent with that. The Idaho Supreme Court
6 has consistently ruled that the common law rule may be
7 modified or abolished only by clear legislative direction
8 and this has been stated consistently in both the State
9 of Idaho v. Idaho Power Company and Mountain States
10 Telephone and Telegraph versus Boise Redevelopment
11 Agency, and in particular would note that when you apply
12 State of Idaho and also Mountain States Telephone, it is
13 apparent that the common law rule applies to relocations
14 ordered by the state as well as entities of local
15 government, and in the case of the Boise Redevelopment
16 Agency, it was a subdivision -- an offshoot of the City
17 of Boise operating under Idaho Code as well as the
18 analogy would be a local improvement district operating
19 under the purview of the highway district or another
20 entity of local government.
21 I would argue that, and we have argued
22 that, under Mountain States there's no difference between
23 an urban renewal agency and a local improvement district
24 formed by the highway district or another entity of
25 government such that would justify a different treatment.
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1 Indeed, both urban renewal agencies and local improvement
2 districts are created by entities of local government.
3 They're each granted the power to install, construct and
4 reconstruct streets and similar public facilities and
5 each have the power to acquire property by purchase and
6 condemnation.
7 The legislature's grant of exclusive
8 authority to highway districts must be contrasted to the
9 Public Utilities Commission' s limited authority. Idaho
10 case law makes it clear that the Idaho Public Utilities
11 Commission exercises limited jurisdiction and has no
12 authori ty other than that expressly granted to it by the
13 legislature, and that is a direct quote from Alpert v.
14 Boise Water Corporation.
15 Idaho Code does not provide express or
16 implied authority for utilities to charge for relocations
17 ordered under Idaho Code 62-705. Rather, Idaho Code
18 61-502, 61-503 authorize the Public Utilities Commission
19 only to determine whether utility costs associated with
20 mandatory relocations may be included in a utility's rate
21 base.
22 Rule H, Section 10 purports to give the
23 Idaho Public Utilities Commission authority over the
24 state's highway districts, public road agencies and
25 enti ties of local government, third parties and
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1 developers and impose upon them a duty to pay for
2 mandatory utility relocations; i. e., relocations ordered
3 under 62-705 which would be done pursuant to a statutory
4 obligation. The issue is the Idaho Public Utilities
5 Commission's lack of authority in this matter. The
6 legislature has given such authority to the highway
7 districts. The legislature could give authority to the
8 Idaho Public Utilities Commission if it wanted to, but it
9 has chosen not to and, again, I would reiterate the fact
10 that as recently as last session, the Idaho legislature
11 considered the issue of utility relocations and even the
12 costs associated with relocations and it did not in any
13 way address or authorize the Idaho Public Utilities
14 Commission to encroach into that arena.
15 There can be no concurrent jurisdiction as
16 proposed by Idaho Power under the state decision, State
17 v. Poynter, where two issues of law, state and local,
18 conflict, there can be no concurrent jurisdiction. In
19 order to have concurrent jurisdiction, there cannot be
20 conflict, and in this case, the Idaho Power has
21 promulgated a rule which requires that the road agency
22 adopt legally binding guidelines that are substantially
23 similar to Rule H, Section 10; in other words, the
24 highway districts can only have jurisdiction under Rule H
25 if the highway district regulations mirror Rule H, but
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1 the Idaho Public utili ties Commission takes over if there
2 is conflict or if they're not the same. This indeed
3 proves the point that there cannot be concurrent
4 jurisdiction and that indeed itself, Rule H, Section 10,
5 usurps the exclusive authority of the highway districts.
6 Rule H, Section 10 is unconstitutional.
7 The constitutionality of Rule H, Section 10 as controlled
8 by State v. Idaho Power is clear that subdivision -- that
9 the provisions of Section 10 impose a duty upon the state
10 and public road agencies, such as cities, counties or
11 highways, as well as any local improvement district they
12 might create, to pay for utility relocations associated
13 wi th road proj ects. This as far as the state goes would
14 violate Article 8, Section 2, Article 7, Section 17, and
15 as far as local entities, highway districts, go, it would
16 be a violation of Article 8, Section 4 as discussed at
17 length in State v. Idaho Power because it would
18 require -- it would impose a requirement upon the state
19 and local entities, entities of local government to pay
20 for utility relocations.
21 In this regard, the reference to local
22 improvement districts, public road agencies, third-party
23 beneficiaries are -- to the extent and to which they
24 bring in and are applicable to either entities of local
25 government or the state are indeed violations of the
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1 Consti tution as recogni zed by State v. Idaho Power.
2 Rule H, Section 10 does more than just
3 determine who pays for relocation costs.It provides
4 that all payments from third-party beneficiaries to the
5 Company under this section shall be paid in advance of
6 the Company's relocation work based upon Company work
7 order costs. Now, here you have, again, a direct
8 infringement upon the operation of the highway district
9 in its scheduling as discussed by the affidavit of
10 Dorrell Hansen and you also have -~ this section also
11 turns out, creates issues for Idaho Code 40-210 which is
12 addressing the issue of coordination of relocation and
13 specifically calling for the highway districts to work
14 things out with the utili ties and then the highway
15 districts could proceed.
16 No mention is given to the fact in 40-210
17 that the highway districts can only proceed with the
18 proj ect if the utility has been paid which is what this
19 particular provision of Rule H, Section 10 would do, and
20 I would point you specifically, point the Commission
21 specifically, to 40-210, Section 3 which states if a
22 utility has received notice of the preliminary design
23 meeting as set forth in subsection 2 of this section and
24 has failed to respond or participate in meetings
25 described therein, such failure to respond or participate
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1 in meetings shall not in any way affect the ability of
2 the public highway agencies to proceed with the proj ect
3 design or construction.It doesn't say anything about
4 whether or not the utility has been paid as would be the
5 result of Section 10 of Rule H.
6 Addi tionally, the Ada County Highway
7 District addressed this issue of coordination and
8 construction by stating that all utility relocation shall
9 be completed prior to the anticipated date of
10 commencement of the right of way improvements, so here
11 you see a direct conflict between Resolution 3 and Rule
12 H, Section 10. Rule H, Section 10 improperly places
13 control of relocations in the hands of the utilities and
14 the Commission. Rule H, Section 10 would cause slowdowns
15 because relocations must be in place before road projects
16 can begin and Rule H, Section 10 requires the third-party
17 beneficiary payment in advance of relocation.
18 As stated in the affidavit of Dorrell
19 Hansen, relocation of utilities is a critical element of
20 project development which can significantly impact a
21 proj ect' s schedule and costs. Lack of timely relocation
22 or coordination has caused delay and contractor claims
23 for road projects and in that regard, that was from the
24 affidavi t of Dorrell Hansen, but also the issue of the
25 coordination and issues relating to coordination was
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1 addressed with the intent of the legislature with the
2 passage of Idaho Code 40-210 which I provided the
3 Commission earlier.
4 In its response brief, Idaho Power states
5 that it will work with the public road agencies to avoid
6 scheduling conflicts. This is not the point. The point
7 is that scheduling is in the exclusive jurisdiction of
8 the highway districts and Rule H~ 10, Rule H, Section 10,
9 usurps the highway districts' authority in that regard.
10 Again, regarding that exclusive authority, I would point
11 the Commission to 40-210.
12 Rule H, Section 10 will effectively
13 dictate the policies and procedures of highway districts
14 and local road agencies regarding electric utility
15 relocations. It will impact the operation of highway
16 districts and local road agencies in their negotiations
17 and relationships with third parties and developers
18 concerning road improvement proj ects and it will regulate
19 and control electric utility relocations by assigning
20 financial liability and in the case of a financial
21 trigger for such relocations, and at this time I would
22 ask the Commission to refer to the second page that I
23 handed out which was entitled "Relocations Flowchart" and
24 I've highlighted in yellow for your convenience, for the
25 Commission's convenience, the Idaho Public Utili ties
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1 Commission jurisdiction.
2 Now, this flowchart purports that whether
3 or not the utility performs relocation of facilities
4 would be under the jurisdiction of the Commission. Now,
5 this certainly flies in the face of the -- of Idaho law
6 as I have set forth and it creates ambiguity of what that
7 would mean. Additionally, the box entitled "Dispute
8 resolution," I've looked at Rule H, Section 10 and I
9 can't see where dispute resolution is addressed, but yet,
10 it's in the flowchart, and additionally, this suggests
11 that if there was dispute resolution, it would be in
12 front of the Public Utili ties Commission and that that
13 begs the question what sort of dispute resolution would
14 this be. Would this be concerning the highway district's
15 apportionment of costs? Would it be whether or not the
16 Company has been paid before construction begins?
17 We're just not sure what that means and
18 indeed, if we had to come to a dispute resolution process
19 in order to solve those issues, that would further
20 complicate and delay construction proj ects, which as
21 indicated in my reference to Idaho Code 40-210, utility
22 coordination and relocation was something that the
23 legislature was addressing in the passage of that Code,
24 and again, 40-210 doesn't talk about dispute resolution
25 in the jurisdiction of the Idaho Public Utili ties
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1 Commission.
2 In its response brief, Idaho Power mostly
3 just explains why it thinks Rule H, Section 10 is a good
4 idea. For example, Idaho Power says that it helps make
5 sure that costs are incurred by individuals and entities
6 that Idaho Power thinks should be responsible. These
7 arguments ignore the legal and jurisdictional issues.
8 The point is that the Idaho legislature has seen fit to
9 give the highway districts exclusive jurisdiction over
10 all highways and public rights of way within their
11 highway system. Rule H, Section 10 seeks to usurp that
12 authority. Only the legislature can give the authority
13 to the Idaho Public Utili ties Commission and it has
14 elected not to do so, and that concludes my remarks,
15 Madam Chair.
16 COMMISSIONER SMITH: Thank you, Mr.
17 Spears. Commissioner Kempton, did you have questions now
18 or do you want to wait until later?
19 COMMISSIONER KEMPTON: I'd like to wait
20 until later, Madam Chair.
21 COMMISSIONER SMITH: Okay. I have a
22 couple just initially now because I am struggling with
23 your argument which is that we lack jurisdiction, which I
24 see as a very different argument from maybe this is
25 inconvenient for the districts or they think it's
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1 ill-advised or they just don't like it. That's one
2 category of don't do it, but saying that we don't have
3 jurisdiction is very specific and very different from
4 saying we don't like iti so I'm trying to get to why you
5 think it's not wi thin our jurisdiction to tell the
6 Company how it's going to recover costs that it must
7 incur because the highway entities have the authority to
8 make the utility relocate its facilities, so given the
9 fact that the utility has no choice when the highway
10 enti ty says it has to move its facilities and it will
11 incur those costs, I'm trying to see how our ability to
12 then take that pool of costs and say how the Company is
13 going to recover it somehow interferes with the highway
14 entity's ability to say you will move these facilities,
15 so that's what I'm struggling with.
16 MR. SPEARS: Madam Chair, I appreciate the
17 question. First of all , it comes in two places. First
18 of all, the Idaho legislature has given the highway
19 districts exclusive authority
20 COMMISSIONER SMITH: And we think that's
21 great and we don't dispute that and we agree that you can
22 require the utili ties to move their facilities when you
23 have a project that requires it and it's at their
24 expense, so they have to incur that expense at which
25 point I think it becomes our problem as to where is the
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1 utili ty going to get the money to recover this expense of
2 the relocation that the highway entity said had to
3 occur.
4 MR. SPEARS: Madam Chair, it relates not
5 only to the highway districts' exclusive jurisdiction,
6 but also the fact that the legislature saw fit to include
7 in the Idaho district statutes implied authorities,
8 meaning that not only do we have the authority
9 exclusively as stated, but that includes implied
10 authori ties to determine relocation costs and we contrast
11 that to the Idaho Public Utilities law, specifically
12 61-502 and 503, and we do not see that those Idaho
13 statutes of the Idaho Code provide the Commission the
14 authori ty. Those are rate setting statutes primarily and
15 we do not believe that those statutes can give the
16 Commission the authority that Idaho Power is seeking.
17 Certainly, those statutes give the
18 Commission the decision authority to decide whether or
19 not relocation rates go into the rate base of Idaho
20 Power, but we do not believe that they give the
21 Commission the authority that Idaho Power is seeking that
22 it assume in regards to relocation and the management of
23 the highway districts that this rule would present.
24 COMMISSIONER SMITH: So is ita timing
25 thing? Do you have Rule H in front of you, Section 10?
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1 MR. SPEARS: Yes, I do.
2 COMMISSIONER SMITH: So if we look at
3 Section 10 (b) where it says that the third-party
4 beneficiary will pay the Company for the cost of the
5 relocation, would you feel if it said reimburse there, if
6 it said reimburse, then would that still raise this
7 question of whether this is something that's happening in
8 your process or something that's happening in our process
9 that comes later after the highway authority has decided
10 that the utility's facilities have to be relocated at
11 their expense, then later on the Commission determines
12 how the Company is going to recover those costs? I'm
13
14
still struggling here. Is ita timing thing?
MR. SPEARS: Madam Chair, no, it's not a
15 timing issue at all. It's a matter of subj ect matter
16 jurisdiction.
17 COMMISSIONER SMITH: So you believe that
18 the implied authorities of the public road agencies that
19 come under the statute dictate how the utility is going
20 to recover the costs of relocation from its customers?
21 In other words, your implied authorities have removed
22 from the Commission's authority to set rates in our
23 statutory and constitutional obligation to see that the
24 utili ty recovers all its reasonably incurred costs, so
25 you believe your implied authorities have removed this
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1 piece from our statutory and constitutional obligations
2 and given it to the highway districts?
3 MR. SPEARS: Madam Chair, it's not our
4 implied authorities, although that's a part of it, but
5 it's the exclusive jurisdiction that
6 COMMISSIONER SMITH: I understand the
7 exclusi vi ty, but I thought that went to managing the
8 roads, deciding when an improvement is needed, deciding
9 when the utility had to move its facilities at its own
10 cost at your schedule, but I didn't know that your
11 exclusive jurisdiction over the roads came over to the
12 other side of the issue which is once the utility knows
13 it has to move its facilities at its own cost, how does
14 it recover those costs. I thought that's when it would
15 move to where the Commission has the obligation to see
16 that the utility gets recovery for its reasonably
17 incurred costs.
18 MR. SPEARS: Well, Madam Chair, again,
19 from our standpoint, the legislature has spoken on this
20 issue as recently as last year.
21 COMMISSIONER SMITH: And I appreciate you
22 bringing this because it seems to me that Senate Bill
23 1097 actually would enhance the operation of Section 10
24 of Rule H because it wants early meetings and
25 consultation between any entity that owns utility
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1 facilities in the right of way and the highway entity so
2 that the utility can understand the goals, obj ecti ves and
3 funding sources for the proposed proj ect. To me, that
4 would enhance the operation of Section 10 of Rule H
5 because they get in early, they understand the project,
6 they understand the time line, they understand the cost
7 responsibility that the highway district or highway
8 enti ty has outlined in order that it might turn around
9 and implement its own tariff, so I think this clearly
10 says what you say it says, that is, that all belongs in
11 the highway district venue, but it also enhances the
12 operation of this section of Rule H by getting the
13 utili ties in early, so I guess I don't see that it in any
14 way intended to limit the Commission's obligations to see
15 that the utility gets cost recovery.
16 MR. SPEARS: Well, Madam Chair, with all
17 due respect, this statute addresses both coordination of
18 relocations and opportunities for funding of those costs
19 and it did not include the Public Utilities Commission in
20 that process.
21 COMMISSIONER SMITH: And we shouldn't be.
22 That's your process. Our process comes later. Our
23 process is now that the utility has this pile of costs,
24 where is it going to go.
25 MR. SPEARS: And Madam Chair, the Highway
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10
11
12
13
1 District's position is that the rule -- the applicable
2 portions of Idaho Code certainly provide the Public
3 Utilities Commission the authority to decide in setting
4 rates what those -- whether those costs will be included
5 in the rate and that's cost recovery as far as it's
6 limited within the jurisdiction of the Public Utilities
7 Commission.
8 COMMISSIONER SMITH: Thank you, Mr.
9 Spears. Ms. Nordstrom. I'm sorry, did any
COMMISSIONER KEMPTON: No.
COMMISSIONER REDFORD: No.
COMMISSIONER SMITH: Ms. Nordstrom.
MS. NORDSTROM: Thank you. Good
14 afternoon, Commissioners. Thank you for the opportunity
15 to address the issues raised by Section 10 in person.
16 Idaho Power has filed numerous documents in this case
17 thus far , its application, testimony, reply comments,
18 answers to the reconsideration petitions and its reply
19 brief on reconsideration. I think the maj ori ty of our
20 argument is found there and we ask that you consider
21 those arguments in addition to what we discuss here this
22 afternoon in making your decision.
23 Idaho Power initiated this proceeding last
24 October to implement changes to its Rule H that will
25 better align the payment of utility costs to those
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1 parties that cause them to be incurred. Requiring cost
2 causers to pay the additional costs incurred helps
3 preserve lower rates than would otherwise be for non-cost
4 causers. Section 10, to the extent permitted by law,
5 likewise recovers costs from those entities that cause
6 utility facility relocation costs to be incurred.
7 Section 10 also presents a uniform
8 approach to minimi ze opportunities for relocation
9 expenses to be inappropriately shifted to Idaho Power and
10 its customers. The Commission plays an important role in
11 utility facility relocations from the public rights of
12 way. The Commission is uniquely positioned to safeguard
13 the public interest of Idaho as its utility regulator.
14 While public road agencies are responsible for the public
15 interest of their distinct geographic area, the
16 Commission protects the public interest with regard to
17 utili ty rates for the entire state.
18 The Commission's authority is set out in
19 the statutes that Idaho Power has enumerated in its brief
20 and they include not only the authority to govern its
21 practices, its charges , its rates , its contracts and its
22 procedures, but the Commission is also vested with a
23 broad grant of authority and in particular, 61-501 which
24 states that the Commission is vested with the power and
25 jurisdiction to supervise and regulate every public
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1 utili ty in the state and to do all things necessary to
2 carry out the spirit and intent of the provisions of the
3 Act.
4 The Commission has governed utility line
5 extension and alterations for decades and has set rules
6 for which costs are to be paid by which parties. Section
7 10 is not that different. It likewise sets parameters
8 for cost allocation of utili ty facility relocations. It
9 was modeled on ACHD' s Resolution 330 which has worked
10 quite well since its inception in 1986.It clearly
11 addresses which party is responsible for utility
12 relocation costs and in the Company's experience,
13 Resolution 330 has improved the transparency and working
14 relationships of the parties that work within those
15 parameters and that's what we're trying to, you know,
16 have embodied in Rule H to improve our relationships and
17 the expectations of those that we deal with in regards to
18 relocations and the public rights of way.
19 Counsel for ACHD mentions and refers to
20 Idaho Code 40-210 and we agree that the focus of this
21 particular statute is to foster the cooperation and
22 coordination of the utilities. Lines 27 to 30 state,
23 "Therefore, it is the intent of the legislature that the
24 public highway agencies and utilities engage in
25 proacti ve, cooperative coordination of highway proj ects
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1 through a process that will attempt to effectively
2 minimize costs , limit disruption of utility services, and
3 limit or reduce the need for present or future relocation
4 of such utility facilities," and this is something that
5 the utilities desire as well. In fact, if you notice on
6 the first page on the Statement of Purpose, this was
7 brought by Qwest and initiated at the legislature.
8 Nothing in this particular statute diminishes the powers
9 of the public road agencies and likewise, nothing in it
10 diminishes the powers that are invested in the Idaho
11 Public Utilities Commission.
12 Another issue that was discussed was the
13 fact that ACHD does not believe there's a big difference
14 between urban renewal agencies and local improvement
15 districts and Idaho Power respectfully disagrees. A
16 local improvement district is not a public road agency.
17 It is not charged with operating and maintaining public
18 roads and it does not control the public rights of way.
19 A local improvement district is merely a financing
20 mechanism. Those were the very words used in the briefs,
21 the joint briefs, by the City of Nampa and ACHD.
22 This type of financial instrument is used
23 by parties that seek to enter into a long-term payment
24 arrangement to fund improvements that are not budgeted
25 for in the budgets of municipalities or of public road
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28 COLLOQUY
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1 agencies. It allows landowners to be taxed or to tax
2 themselves in order to fund these improvements over a
3 longer period of time. The only function that an LID
4 performs is to collect that money. It is not a
5 governmental agency in the traditional sense.It doesn't
6 have employees and it has no other function other than
7 just to collect money. It's a financial instrument.
8 It's not unreasonable to expect that a
9 local improvement district would include the amount of
10 money in it that would cover the cost of utility facility
11 relocations not only for the cities, which they almost
12 always do, but they often forget to include the costs of
13 relocations for private utili ties and that's why these
14 costs often get passed on to Idaho Power's customers. If
15 the public interest required that these types of
16 improvements were to be done in the normal course of
17 business, the improvement would have been budgeted for in
18 the public road agency's normal planning cycle. The fact
19 that they weren't so budgeted and they were forced to go
20 form an LID to have these improvements done indicates
21 that something other than the public interest is driving
22 the need for the improvement.
23 When the public road agency obtains a
24 contribution from a third party like an LID to reduce the
25 cost of highway improvement, it's strong evidence that
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1 all or a portion of the improvement will confer a
2 benefit, a direct benefit, on an identifiable third party
3 and not the public generally. Mr. Lowry in his testimony
4 for Idaho Power explains the problems that can occur when
5 LIDs are performed to complete projects that require the
6 relocation of Company facilities. He explains that if
7 the LID has no obligation to include the cost of utility
8 relocation as part of the cost of the work to be done
9 that the LID will collect funding from nearby property
10 owners only for the cost of improvements for city
11 utili ties, but not for other utilities that are
12 relocating in the public rights of way.
13 While the Supreme Court has said that
14 Idaho Power cannot seek payment for utility relocation
15 costs from a public road agency that administers the
16 public right of way, there is no such prohibition against
17 seeking reimbursement from the local improvement district
18 which is not a public road agency and does not administer
19 public rights of way and trust for the public. Idaho
20 Power may seek reimbursement of its facility relocation
21 costs in the same proportion the public road agency
22 requires local improvement district payments for the
23 project. That is an objective standard and it's one
24 that's entirely within the control of the public road
25 agency.
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30 COLLOQUY
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1 Counsel for ACHD also referred to a
2 potential conflict of law between Rule H and any
3 ordinances that municipalities or public road agencies
4 might pass and I would just note when you look at the
5 flowchart that sequentially, once the roadway agency
6 determines the percentage amount that the road
7 improvement will benefit a third party, Idaho Power
8 collects that percentage of the relocation based on the
9 same percentage that was set by the public road agency.
10 Once Idaho Power has performed the relocation, you know,
11 it's really of no concern to the public road agency how
12 it gets reimbursement for those costs, and I understand
13 the concerns about cooperation and scheduling.
14 These are very admittedly difficult and
15 complicated construction proj ects and, you know, we do a
16 lot of heavy construction and this is our business as
17 well. We certainly understand the complications that
18 occur and we try to work very cooperatively to meet these
19 schedules and to be sensi ti ve to the needs of other
20 parties and I believe that Idaho Code Section 40-210 on
21 the second page, lines 4 and 5 describe providing
22 reasonable schedules to enable coordination of highway
23 proj ect construction and such utility facility relocation
24 as may be necessary, and this is certainly one of the
25 things that can be discussed and should be discussed, but
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...
1 Idaho Power also has very serious concerns about getting
2 reimbursed for its expenses for a proj ect that it didn't
3 ini tiate, and certainly when you save that discussion
4 until after, entirely until after, the improvement has
5 occurred, some of the leverage is lost and I know the
6 example that is presented by Mr. Lowery in his testimony
7 where he talked about an ITD project in Nampa several
8 years ago on Nampa-Caldwell Boulevard, you know, getting
9 collection after the fact from the City of Nampa proved
10 very difficult and they had indicated that, you know,
11 they would make and provide for the costs of the
12 relocations for the LID that had requested them, but when
13 the time came to pay, they refused to and that was money
14 that Idaho Power never collected, so obviously, that's a
15 concern for us and our customers and to the extent that
16 we can explicitly deal with those issues and outline how
17 these costs are to be recovered in our tariffs, that
18 would provide some clarity for Idaho Power and for the
19 other parties that we deal with.
20 Another issue that was mentioned was
21 dispute resolution with regard to reimbursement and Idaho
22 Power envisions that any dispute resolution if it is
23 needed is solely related to the collection of the
24 third-party' s percentage share of the relocation costs
25 and the Utilities Commission governs utility practices,
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32 COLLOQUY
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1 its rates and its charges and that's clear in Title 61
2 that the Commission has the authority to do that and the
3 ability to collect reimbursement for the expenses that it
4 has outlaid to relocate facilities from the public rights
5 of way has a direct impact on Idaho Power's rates and is
6 certainly wi thin the authority of the Commission to
7 regulate and oversee if they so choose.
8 Again, I would note that the third-party
9 percentage share of the relocation costs is directly tied
10 to the initial decision that is made by the public road
11 agency, so they have set and made the initial evaluation
12 of what is the public interest and what is in their
13 planning budget and what they are willing to contribute,
14 so they have effectively controlled the dollar matters in
15 this reimbursement proceeding even though they aren't
16 directly a part of it. I think that's all I have.
17 COMMISSIONER SMITH: Thank you,
18 Ms. Nordstrom. Do you have questions for Ms. Nordstrom?
19 COMMISSIONER KEMPTON: I do,
20 Madam Chairman, so Ms. Nordstrom, what, if not
21 specifically, then at least by general area, is not
22 covered in Resolution 330 that you're driving for in Rule
23 H?
.24
25
MS. NORDSTROM: We believe that Resolution
330 covers the circumstances that we have envisioned. We
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33 COLLOQUY
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1 would just like to extend Resolution 330 to the dozens of
2 municipalities and public road agencies that we also deal
3 wi th. Quite frankly, we have no beef with ACHD. They
4 are a valued partner to work with. They are transparent
5 and the way that they conduct utility relocations under
6 Resolution 330 has worked well for more than 20 years and
7 our disagreement isn't with them and that's one reason
8 why we suggested in Section 10 that if there was
9 something that was substantially similar, that Section 10
10 wouldn't take precedent over that, and in large part,
11 that was in recognition of the fact that Resolution 330
12 really does work and it is the model for what we're
13 proposing in Section 10.
14 COMMISSIONER KEMPTON: Did Idaho Power
15 participate in the legislative discussions on 40-210?
16 MS. NORDSTROM: I'm not aware of whether
17 we did or didn't. I don't know.
18 COMMISSIONER KEMPTON: In 40-210, there's
19 language in Section 2, it's on the second page, in fact
20 it's the last paragraph -- it's the last sentence, it's a
21 long sentence, it's the last sentence on the top of the
22 page, and as you read the language yourself, would you
23 say that ACHD would be a party in the direction to that
24 sentence which states, "While recognizing the essential
25 goals and obj ecti ves of the public highway agency in
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34 COLLOQUY
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1 proceeding with and completing a proj ect, the parties
2 shall use their best efforts to find ways to," and then
3 it has (a) and (b), did you understand parties to include
4 ACHD in that process?
5 MS. NORDSTROM: We do.
6 COMMISSIONER KEMPTON: In (a) it says the
7 first priority of ACHD in looking at those proj ects is to
8 eliminate the cost to the utility of relocation of the
9 utili ty facilities. Eliminate, not reduce at that point,
10 it's eliminate the costs. I'm simply asking if that's as
11 you understand that, is that a responsibility of ACHD in
12 that sentence as one of the parties?
13 MS. NORDSTROM: It appears to be, I
14 agree.
15 COMMISSIONER KEMPTON: As one of the
16 parties, if you try to eliminate that, would you say
17 Resolution 330 effectively corresponds with that process
18 and the purpose, to eliminate those costs to the utility?
19 MS. NORDSTROM: I think Resolution 330
20 recognizes that relocation costs will be incurred. I
21 don't know that it would eliminate them outright, but I
22 believe Resolution 330 tries to allocate the costs in a
23 process that is fair and transparent, and the decisions
24 of the public interest, you know, those are decisions
25 that are made by ACHD and utilities are reliant upon the
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35 COLLOQUY
.1 public road agencies to act in good faith to decide what
2 that is and also to -- you know, they are constrained by
3 their budgets and the money that they have available to
4 prioritize public interest and I think, you know, it's
5 one of the concerns that the Company has had in whether
6 we should try and get into matters of the public interest
7 and who decides what.
8 I think it's obvious from the briefs that
9 the parties have a very different view and Idaho Power
10 takes a position that is really more of a direct benefit
11 as opposed to a larger societal benefit, but we are
12 dependent to a large degree on the public road agencies.13 to make those decisions.
14 COMMISSIONER KEMPTON: Would you say that
15 if Idaho Power or if ACHD could not eliminate the cost to
16 the utility in the planning process that then it would
17 fall under (b), if the elimination of costs or if costs
18 cannot be eliminated, then they're obligated to minimize
19 the relocation costs to the maximum extent reasonably
20 possible?
21 MS. NORDSTROM: Absolutely.
22 COMMISSIONER KEMPTON: Would you say that
23 Resolution 330 accomplishes that?
24 MS. NORDSTROM: I think that's its.25 intent.
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36 COLLOQUY
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1 COMMISSIONER KEMPTON: If Resolution 330
2 satisfies those requirements that are in the statute, do
3 you feel that the Commission is obligated in any sense in
4 its oversight of Idaho Power operations and procedures
5 and in responding to their primary trust of making sure
6 that costs are fair, just and reasonable to ratepayers
7 would have oversight of your participation in a process
8 like Resolution 330?
9 MS. NORDSTROM: I do.
COMMISSIONER KEMPTON: And if Resolution
11 330 then falls in that category, would not the Commission
12 now have a jurisdictional function in conj unction with
13 the statute that's provided here?
14 MS. NORDSTROM: It does.
15 COMMISSIONER KEMPTON: Thank you.
16 COMMISSIONER SMITH: Ms. Sasser, are you
17 going to enter into this or are you just observing?
18 MS. SASSER: We have a brief statement,
19 Staff has a brief statement.
20 COMMISSIONER SMITH: Please proceed, then.
21 Oh, we're going to be at ease for seven minutes, until
22 2:15.23 (Recess.)
24 COMMISSIONER SMITH: AIl right, we'll go
25 back on the record. Ms. Sasser.
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37 COLLOQUY
.1 MS. SASSER: Thank you, Madam Chair.
2 Staff appreciates the opportunity to briefly discuss the
3 facts and laws that pertain to the matter currently
4 before the Commission. Is that extra loud?
5 COMMISSIONER SMITH: Try again.
6 MS. SASSER: The authority of the ACHD and
7 other poli tical subdivisions and the authority of the PUC
8 are not inconsistent with one another. Staff does not
9 question the power of the state and its political
10 subdivisions to require removal of a nuisance or
11 obstruction which interferes with the public use of
12 streets and highways, and as you have heard numerous.13 times this afternoon, the common law rule holds that
14 utili ties bear the expense of relocating their facilities
15 in public rights of way when necessary to make way for
16 proper governmental use of the streets.
17 Highway districts, including ACHD, have
18 authori ty over the public right of way which extends to
19 the location of the utility's facility wi thin the public
20 right of way. ACHD in particular determines the
21 distribution of costs for the road improvements pursuant
22 to Resolution 330; however, the Idaho Supreme Court has
23 stated that while highway districts have broad powers and
24 authority over streets and highways, it must be held in.25 balance with the statutory responsibilities of other
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38 COLLOQUY
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1 entities, and pursuant to Idaho Code 61~502, the Public
2 Utilities Commission is specifically delegated authority
3 to regulate and fix the charges collected by a utility.
4 Idaho Code 61-503 completes the
5 Commission's power over ratemaking by giving it the
6 authority to investigate rate schedules and contracts
7 affecting rates. Simply put, the Commission has the
8 authori ty to investigate and establish rates for public
9 utili ties' practices which do or may affect the rates
10 charged or the services rendered by a utility. It's
11 standard practice for a utility to charge through
12 Commission approved tariffs for relocating its
13 facili ties. This practice is consistent with the
14 fundamental principle of cost causation, that to the
15 extent practicable, utility costs be paid by those
16 enti ties that caused the utility to incur the costs.
17 Idaho Power's Rule H, Section 10 language
18 regarding the distribution of costs for relocation of the
19 utility's facilities mimics ACHD's Resolution 330,
20 thereby consenting to ACHD' s determination regarding
21 allocation of costs. The language of Section 10 in no
22 way usurps the authority of the ACHD or any other highway
23 district because it does not attempt to give the
24 Commission or Idaho Power any authority that by law
25 belongs to the highway district.
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39 COLLOQUY
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1 Indeed, the districts do not argue that
2 the Commission does not have authority to determine
3 allocation of costs by a utility generally. The
4 districts and ACHD specifically argue that the Commission
5 does not have authority to approve a tariff that
6 allocates the costs of relocation in a public right of
7 way. This argument misses the point.If the Commission
8 has jurisdiction to determine whether a utility's
9 allocation of cost is just and reasonable, the Commission
10 cannot be divested of jurisdiction simply because costs
11 are incurred due to relocation of a facility in a public
12 right of way.
13 Certainly nothing in Idaho statute or case
14 law gives ACHD the express authority to determine how a
15 utility should allocate the costs of relocation and
16 notably, ACHD does not point to any grant of such express
17 authority.In sum and consistent with Idaho Supreme
18 Court precedent, the highway districts' authority must be
19 held in balance with the statutory responsibilities of
20 other entities. The manner and cost of road improvements
21 in a public right of way is the exclusive jurisdiction of
22 the highway districts; however, the cost of road
23 improvements, which includes the roadway, curbs, signals,
24 signs, et cetera does not incorporate the cost to the
25 utili ty for relocation of i ts facilities.
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40 COLLOQUY
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1 The costs incurred by a utility in
2 relocating its facilities is a matter that ultimately
3 affects the rates charged to a utility's customers and
4 therefore is squarely wi thin the Commission's
5 jurisdiction. That's all I have.
6 COMMISSIONER SMITH: Thank you, Ms.
7 Sasser. Any questions for Ms. Sasser?
8 COMMISSIONER REDFORD: Not directly, but I
9 do have some questions for all the attorneys.
10 COMMISSIONER SMITH: Would you like to do
11 that before Mr. Spears' closing or after?
12 COMMISSIONER REDFORD: Well, why don't I
13 do it right now if you don't mind. Mr. Spears, I am
14 having a bit of a difficulty in trying to understand and
15 justify what it is that Ada County Highway District is
16 intending to propose. It seems to me that as to the
17 distribution of the costs for relocation, so long as the
18 Ada County Highway District gets the funds to either
19 relocate the facilities or to have the utility relocate
20 them, as long as you have those funds and they're wi thin
21 the engineering plans and the cost take-offs and so on,
22 why do you care where the money comes from? That's one
23 question.
24 MR. SPEARS: Madam Chair, Commissioner,
25 our concern --
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.1 COMMISSIONER SMITH: I s your mic on?
2 MS. SASSER: Yes, it is. Our concern,
3 again, relates to matters of jurisdiction and the Highway
4 District's exclusive jurisdiction over the right of way
5 and what happens concerning the right of way and our
6 abili ty to manage our proj ects effectively and
7 efficiently.
8 COMMISSIONER REDFORD: Well, it seems to
9 me that that is a very ambitious goal to the extent you
10 appear to expand your jurisdiction somewhat in your
11 arguments.If you do the engineering in conj unction with
12 the utility, make a determination in a public right of.13 way what has to be moved, determine the costs, determine
14 those persons responsible to do the construction work,
15 how can you possibly say that you have jurisdiction to
16 say where the money comes from? Let's assume for a
17 second that Idaho Power said well, it's a minor move and
18 so we're not going to ask that the rates be adj usted,
19 we'll just assume it, assume those costs, why do you
20 care?
21 I mean, if you're making a jurisdictional
22 argument simply for jurisdiction purposes, it seems to me
23 that you have to clearly delineate what the jurisdiction
.24 is and where the jurisdiction is being infringed upon and
25 I haven't heard anything you said today that makes me
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1 believe that the jurisdiction is being infringed upon,
2 because we know that the utility must pay the costs,
3 common law. We know that you have the responsibility and
4 right to determine how the road is constructed. You also
5 have the responsibility to make sure that all those
6 persons who have an obligation to the Highway District
7 for relocation costs are fairly finite, and I think
8 that's your jurisdiction.
9 To step out and say well, we're now going
10 to determine not only who the third parties are that are
11 going to pay this, we're going to make sure that we do
12 so -- that we're the final determiner as to who these
13 third parties are and I think that's way beyond your
14 jurisdiction. You've also talked about disputes and you
15 said well, there's no dispute resolution. Well, I
16 suppose if there was a dispute between a third party and
17 the utility and/or you, that regardless of whether it's
18 the PUC, which I kind of doubt that it is, there are
19 district courts that resolve those kinds of disputes all
20 the time.
21 I'm really just trying to grab ahold of
22 what it is you're complaining about and why and so I
23 don't want you to do your argument completely over again,
24 but you might think about that when you're doing your
25 rebuttal.It seems to be I wouldn't say a lot to do
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43 COLLOQUY
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1 about nothing, but it in my estimation approaches that a
2 li ttle bit and Ms. Nordstrom, I do have one question
3 about this dispute. If you have a dispute over a debt
4 that a third party might owe you as a result of the
5 relocation, do you believe that we have the authority to
6 resol ve that or does a district court have the duty to
7 resol ve a debt between you and a customer, any more than
8 we have the right to determine whether a ratepayer wants
9 to go to court over a rate that's in your tariff that's
10 been approved by us? Maybe that was a long, drawn-out
11 question, but...
12 MS. NORDSTROM: Well, certainly to the
13 extent that there is a dispute regarding the Company's
14 rates or charges, those are certainly areas over which
15 the Commission has jurisdiction by statute. You know, if
16 the amount itself is not in dispute and it's solely a
17 collection issue, that traditionally isn't something that
18 the Commission has gotten involved in normally. The
19 Company has attempted to resolve that on its own and
20 through mediation and its own venues outside of the
21 Commission's practice.
22
23 district court?
COMMISSIONER REDFORD: How about in a
24
25
MS. NORDSTROM: We have done that.
COMMISSIONER REDFORD: Okay, and I guess
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.24
25
1 one more question for Mr. Spears, what is the criteria
2 you use for determining those third parties who must
3 ul timately bear the cost?
4 MR. SPEARS: Madam Chair, Commissioner,
5 I'm referring to Resolution 330 and it states,
6 "Relocation Cost Responsibility. The responsibility for
7 costs associated with the relocation of a utility or
8 service facility, sewer facilities shall be assigned as
9 follows: Where the district requires that any facility
10 or utility be relocated from its existing location, the
11 utility and/or sewer company shall be responsible for
12 that portion of the relocation costs that equals the
13 percentage of the district's participation in the right
14 of way improvement cost. The remaining utility and/or
15 sewer relocation cost shall be the responsibility of the
16 individual firm or entity that provides funds for the
17 balance of the right of way improvement cost."
18 COMMISSIONER REDFORD: Who is that?
19 MR. SPEARS: That would be a developer or
20 some other entity, perhaps a city.
21 COMMISSIONER REDFORD:Okay, and, of
22 course, that resolution arose in front of the Highway
23 District?
MR. SPEARS: Yes, Madam Chair,
Commissioner, that was adopted by the Ada County Highway
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45 COLLOQUY
.
.
.
1 Commission September 25, 1986.
2 COMMISSIONER REDFORD: So that was kind of
3 imposed upon yourself by yourself?
4 MR. SPEARS: Madam Chair, yes.
5 COMMISSIONER REDFORD: So you vested
6 jurisdiction in yourself by your resolution?
7 MR. SPEARS: Commissioner, yes.
8 COMMISSIONER REDFORD: Well, I guess my
9 question again is as to the depth of the contributions,
10 it appears that that simply states you can assess the
11 responsibility and the financial responsibility on the
12 utili ty. Now, why do you care where the utility gets the
13 money?
14 MR. SPEARS: Madam Chair, Commissioner,
15 this probably kind of puts us at our closing, although we
16 can discuss it now. As I stated, Rule H, Section 10 does
17 just more than determine who pays.
18 COMMISSIONER REDFORD:Well , it seems
19 like your resolution does the same thing.
20 MR. SPEARS: Madam Chair, Commissioner,
21 yes, our resolution is quite a detailed approach
22 concerning coordination and other issues concerning
23 projects and the relationship of utility relocation to
24 projects.
25 COMMISSIONER REDFORD:Okay, why don't
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46 COLLOQUY
.
.
.
1 you just go ahead and do your final argument if you want
2 to.
3 MR. SPEARS: Okay. Madam Chair --
4 COMMISSIONER KEMPTON: Madam Chair?
5 COMMISSIONER SMITH: Commissioner
6 Kempton.
7 COMMISSIONER KEMPTON: Thank you,
8 Madam Chairman and Mr. Spears. First of all, I have to
9 extend a compliment to ACHD for acting as they did at
10 that period of time in recognizing a problem and working
11 with Idaho Power to draw up Resolution 330. It's been in
12 effect a long time. It seems to be practical. What I'm
13 having a lot of trouble understanding is where the
14 specific parts, and perhaps you can address that in
15 closing, where you start separating from the provisions
16 of Resolution 330 and start getting heartburn about Rule
17 H, because to me, those are defining arguments about what
18 might have to be done with Section 10, but in the area of
19 jurisdiction, and I apologize for going back over this
20 litany one more time, but I'm going to ask roughly the
21 same questions I asked Ms. Nordstrom and, of course, the
22 first question is what I just addressed and that is what
23 specifically is the distinguishing characteristics of
24 Rule H that cause heartburn in comparison to Resolution
25 330. And the second thing, at the time you did that, do
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47 COLLOQUY
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.
1 you have an idea why ACHD -- it's the same question
2 essentially that Commissioner Redford asked, why ACHD
3 thought that that was a good thing to do?
4 MR. SPEARS: Madam Commissioner,
5 Commissioner -- Madam Chair, Commissioner, I, of course,
6 was not with the Ada County Highway District back in
7 I'm looking to see if the document stated -- if it1986.
8 would please the record, I could review the whereases in
9 stating the intent of the Highway District.
10 COMMISSIONER KEMPTON: How many whereases
11 are we talking about?
12 MR. SPEARS: Only two.
13 COMMISSIONER KEMPTON: Madam Chair, I
14 think the question will stand for later discussion,
15 perhaps in the technical hearing, so I don't -- okay,
16 let's go ahead. We might as well. We've got time. Read
17 the whereases.
18 MR. SPEARS: Yes, Madam Chair,
19 "Whereas, it is deemed to be in theCommissioner.
20 interest of Ada County Highway District and the various
21 public utility and sewer entities who relocate, install
22 or reinstall facilities within the public rights of way
23 to establish a revised policy with respect to the
24 relocation of such facilities. Whereas , representatives
25 of the District, Boise City Department of Public Works
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.
.
1 and various utility organizations met on December 18,
2 1985 to establish the guidelines for utility and sewer
3 relocations wi thin those public rights of way under the
4 jurisdiction of Ada County Highway District," and those
5 are the two whereases.
6 COMMISSIONER KEMPTON: So when you look at
7 what was Senate Bill 1097 and then became Chapter 40,
8 Section 210 and in that area in subparagraph 2 and the
9 last sentence in that -- the last paragraph which is at
10 the top of page 2, I asked the question about whether you
11 considered -- Ms. Nordstrom I asked the question, so do
12 you consider yourself a party to which it's described in
13 this section, a party responsible in part as one of the
14 parties to eliminate the cost of the utility
15 relocation -- let's see, I'm sorry, let me read this
16 thing."Eliminate the cost to the utility of relocation
17 of the utility facilities, or if elimination of such
18 costs is not feasible, minimize the relocation costs to
19 the maximum extent reasonably possible." Would you agree
20 that you're a party that's responsible for those two
21 subsections, (a) and (b)?
22
23 yes.
MR. SPEARS: Madam Chair, Commissioner,
24
25
COMMISSIONER KEMPTON: And would you
consider the Resolution 330 you currently have in
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1 existence to be a contributing factor in how you would
2 achieve those two items?
3 MR. SPEARS: Madam Chair, Commissioner,
4 yes.
5 COMMISSIONER KEMPTON: And so my last
6 question that I asked Ms. Nordstrom was given that fact,
7 do you feel that the Commission does or does not have a
8 jurisdictional responsibility to see this is a statute
9 now -- that those same guidelines that you have in
10 Resolution 330 would apply to all highway districts where
11 Idaho Power is located, all state or, I'm sorry, all,
12 right, all state, all local highway jurisdictions to
13 include counties , cities and local highway districts?
14 MR. SPEARS: Madam Chair, Commissioner, my
15 answer to that question is no and I point again to the
16 fact that the Idaho Public Utilities Commission is a
17 limited authority entity. This has been recognized by
18 the Idaho Supreme Court in numerous court cases and it
19 was not specifically enumerated as a party and arbiter in
20 40-210 and our answer, therefore, is no.
21 COMMISSIONER KEMPTON: Mr. Spears, you see
22 no connection between the PUC oversight responsibilities
23 of Idaho Power as a regulated utility in how they
24 interface with a public highway agency in achieving the
25 statutory specifications that are in 40-210?
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.
1 MR. SPEARS: Madam Chair, Commissioner,
2 absent a direction from the legislature, I must answer
3 no.
4 COMMISSIONER KEMPTON: Mr. Spears, would
5 you -- do you argue with the fact that the statutory
6 responsibili ty from the legislature for the Idaho Public
7 Utili ties Commission in the oversight of a regulated
8 utili ty, in this case Idaho Power, originates in statute?
9 MR. SPEARS: Madam Chair, yes.
10 COMMISSIONER KEMPTON: And if there's a
11 statutory responsibility for that regulatory oversight
12 and if it connects into a decision process that is
13 conducted by public highway agencies, would you not see
14 that there's a jurisdictional responsibility to see that
15 Idaho Power and the language in Idaho Power tariffs
16 reflect the provisions that are existing in this section
17 in 40-210 even though it's written within the Highway's
18 section of code?
19 MR. SPEARS: Madam Chair, Commissioner,
20 again, Ada County Highway District does not see the
21 connection that the Commissioner sees in regards to
22 40-210. Again, point to the regulatory authority under
23 61-502 and 503 to set rates, but absent express granting
24 of authority, again, iting to Alpert v. Boise Water
25 Corporation, we see that there is no connection or
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51 COLLOQUY
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.
1 authority granted under 40-210.
2 COMMISSIONER KEMPTON: Thank you, Mr.
3 Spears. Let me ask the question a different way because
4 I wasn't suggesting we had authority that was granted
5 specifically through 40-210, but actually through the
6 process that's described in 40-210. ACHD as a party is
7 directed to eliminate the cost to the utility of
8 relocation of utility facilities or if elimination of
9 such costs is not feasible, minimize the relocation costs
10 to the maximum extent reasonably possible, who is going
11 to make that judgment?
12 MR. SPEARS: It would be, Madam Chair,
13 Commissioner, as near as anyone can tell from this
14 statute, it's the parties; i. e., the Highway District and
15 the utility.
16 COMMISSIONER KEMPTON: And in that case
17 Idaho Power Company is a party and so they could
18 challenge the elimination or the minimization of the
19 costs to themselves?
20 MR. SPEARS: Madam Chair, Commissioner , it
21 doesn't this Code does not state that they have an
22 ability to challenge it. It states that it's a
23 recognized goal and that the parties would use their best
24 efforts.
25 COMMISSIONER KEMPTON: And would it not if
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52 COLLOQUY
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.
1 it were challenged, if one of the parties said we think
2 that this isn't going right, that you could do better,
3 that this is our position and submitted that as a matter
4 of contest in whatever decision is made, that would just
5 be simply left on the books and you would go ahead and do
6 the proj ect?
7 MR. SPEARS: Madam Chair, Commissioner, in
8 answer to that question, I believe that the answer is
9 yes. Under subsection (5), it states, "No provision of
10 this chapter shall diminish or otherwise limit the
11 authori ty of the state, the highway district or political
12 subdi vision having jurisdiction."
13 COMMISSIONER KEMPTON: And that --
14 MR. SPEARS: In other words, Madam Chair,
15 Mr. Commissioner, this Code provision does not create,
16 appear to create, a private right of action and so --
17 COMMISSIONER KEMPTON: Mr. Spears, we're
18 not talking about the authority of them to go ahead and
19 do the proj ect and that wasn't what I said in my
20 question. I just said you would simply go ahead and do
21 the proj ect which presumed that you had the authority to
22 do it and go ahead and do it, but you would simply do it
23 recognizing that one or more of the parties had a
24 significant objection to the accomplishment of (a) or
25 (b. ) It doesn't say in here that they can stop the
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53 COLLOQUY
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.
1 proj ect. I'm just saying that if there is no balancing,
2 if there's no method to judge whether you have actually
3 accomplished those, you can do whatever you want. In
4 fact, you can literally write off provisions (a) and (b)
5 unless there's something where somebody can have some
6 sort of option to mitigate an arbitrary or capricious
7 decision by ACHD.
8 MR. SPEARS: Madam Chair, Commissioner, I
9 can state that ACHD doesn't make arbitrary or capricious
10 decisions, at least we don't believe that they are so,
11 but--
12 COMMISSIONER SMITH: Join the club
13 MR. SPEARS: -- this is a new section, so
14 it hasn't been litigated yet and so it's hard to say
15 exactly what this section of Idaho Code does in that
16 relationship; i. e., the relationship between the ACHD and
17 the utility, but it's noteworthy as to what is absent
18 from it and that is a reference to the Public Utilities
19 Commission as having jurisdiction to be a mediator, to be
20 an arbiter and that is what at this point we can take
21 from this statute.
22 COMMISSIONER KEMPTON: Okay, Mr. Spears,
23 then, a question, if Resolution 330 were effectively
24 incorporated in Rule H so that it gets out to all of the
25 highway districts that work in Idaho Power delivery
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54 COLLOQUY
.1 areas, would that not facilitate a reasonable process by
2 which all highway districts could follow the same
3 process, the same methodologies and basically the same
4 condi tions in comparison one with the other instead of
5 having -- I think there's 139 highway jurisdictions in
6 the state, something like that, instead of having 139
7 different operating procedures for Idaho Power to have to
8 handle in terms of how this process will be done?
9 MR. SPEARS: Madam Chair, Commissioner,
10 prefacing my remark with the fact that Ada County Highway
11 District believes that this question is best left to the
12 local highway district working in conj unction with its.13 partner utili ties, if the other highway agencies across
14 the state were to adopt something like Resolution 330,
15 that would be beneficial.
16 COMMISSIONER KEMPTON: So Mr. Spears, I
17 think that's where the Commission feels that there is a
18 jurisdictional issue here. It is a jurisdictional
19 responsibili ty to ratepayers to have consistency in how
20 we finally have utilities assign costs to customers and
21 to receive funding from those who obligate the utility to
22 providing services whose costs ultimately trickle down to
23 all ratepayers and that jurisdictional responsibility in
24 this case, at least as I see it, is an open question for.25 decision. Like you said, it hasn't been litigated yet,
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1 but to me personally, I see a Commission jurisdictional
2 responsibili ty in incorporating in the tariff the process
3 by which we would accomplish reasonably 40-210 across the
4 state using provisions that ACHD has very kindly provided
5 as an initial model and which Rule H effectively
6 incorporates in that tariff, subj ect only to those areas
7 where you specifically can identify where there are
8 conflict between Rule H and Resolution 330, and that's
9 just a statement on my part and that's why I think that
10 there is a j urisdictional responsibility for the Public
11 Utili ties Commission in this case and I think this
12 statute 40-210 effectively highlights that and I think
13 that's probably all I need to say on the issue. I'm
14 certainly interested in hearing closing on all the
15 parties.
16 COMMISSIONER SMITH: Please proceed.
17 MR. SPEARS: Madam Chair, Commissioners,
18 Scott Spears again, Ada County Highway District. There
19 are several issues at hand in Ada County Highway
20 District's opposition to Rule H, Section 10, the first of
21 which is, of course, jurisdictional. We've laid that out
22 and discussed it. There are also constitutional issues
23 at hand in regard to the requirement under Rule H,
24 Section 10 that highway districts or local improvement
25 districts or other public third-party entities might be
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56 COLLOQUY
.1 required or that this Rule would be applicable to those
2 third-party entities.
3 There are significant constitutional
4 issues, would again point to Article 8, Section 4 with
5 regard to the highway districts and other public
6 enti ties. There is the common law rule as it has been
7 developed in Idaho with rulings of the Idaho Supreme
8 Court that clearly are at play here in any sort of a
9 regulation that would impose upon highway districts,
10 local entities of government, whether they be viewed as
11 third-party beneficiaries, local improvement districts,
12 you name it, an obligation to reimburse or to pay for.13 utility relocations.
14 There are the operational issues that
15 we've discussed, the fact that under Rule H, Section 10,
16 there are broad definitions of third-party beneficiary
17 and that goes to the constitutional issues, the common
18 law rule issues. There's the issue in this rulemaking
19 that would require that all payments of third-party
20 beneficiaries shall be paid in advance of the Company's
21 relocation based upon the Company's work order. As
22 indicated and discussed in the affidavit of Dorrell
23 Hansen, that in and of itself has the potential to bring
24 our projects to their knees and create an unreasonable.25 advantage on the part of the utility in this regard.
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57 COLLOQUY
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.
20
21
1 There's also the fact that Rule H would
2 require that if the public road agencies have adopted
3 legally binding guidelines that they be substantially
4 similar or else they're null and void. That in and of
5 itself is a direct --
6 COMMISSIONER SMITH: I'm sorry, could you
7 point me to where that happens?
8 MR. SPEARS: Madam Chair, that is the last
9 paragraph of Section 10.
10 COMMISSIONER SMITH: But I thought you
11 said it backwards. You said something like if the local
12 road agency implements something and it's not
13 substantially like Rule H, it's invalid. That's not what
14 this says.
15 MR. SPEARS: Madam Chair, but that would
16 be the effect of this.
17 COMMISSIONER SMITH: No, it wouldn't be.
18 This says if you have something, like I assume Ada
19 County's Resolution -- was it 330?
MR. SPEARS: Yes.
COMMISSIONER SMITH: But this doesn't
22 apply, that whatever the highway agency has implemented,
23 that's what applies and Rule H is not applicable in those
24 circumstances. It only runs that way. It can't run the
25 other way because we have no jurisdiction to approve any
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58 COLLOQUY
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.
20
1 tariff provision that would affect what the public road
2 agency does, so it can only run to say that Rule H won't
3 apply if, say, for example, in the case of Ada County
4 there's a Resolution 330, that already covers the field,
5 so that's how I read it. I didn't read it the way __
6 going back to invalidate what anyone had done.
7 MR. SPEARS: With all due respect,
8 Madam Chair, this provision instructs that if -_
9 COMMISSIONER SMITH: Yeah, this section
10 doesn't apply. This section, Section 10, Rule H, does
11 not apply to utility relocations within public road
12 rights of way of public road agencies which have adopted
13 legally binding guidelines for the allocation of utility
14 ,relocation costs between the utility and third-party
15 beneficiaries, so --
16 MR. SPEARS: But Madam Chair, if they have
17 adopted legally binding guidelines
18 COMMISSIONER SMITH: Are you saying that
19 are not substantially similar?
MR. SPEARS:that are not substantially
21 similar--
22
23
24
25
COMMISSIONER SMITH: Okay, got it.
MR. SPEARS: -- then this overrules them.
COMMISSIONER SMITH: So it's the part that
are not substantially similar, gotcha. Thank you.
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59 COLLOQUY
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.
.
1 MR. SPEARS: And I believe, Commissioners,
2 that concludes my discussion.
3 COMMISSIONER REDFORD: No questions.
4 COMMISSIONER SMITH: Well, okay, I'm still
5 back on this section, so all it says is that if you've
6 done something like this, this section doesn't apply. If
7 you've done something that's different, then I guess the
8 issue arises whether this section applies or not.
9 MR. SPEARS: Madam Chair, yes. It
10 effectively instructs highway districts, such as Ada
11 County Highway District which has adopted a resolution
12 that our resolution must --
13 COMMISSIONER SMITH: No, no, no, you
14 can't--
15 MR. SPEARS: For it to be effective, I'm
16 sorry, it must be substantially similar to Rule H,
17 Section 10.
18 COMMISSIONER SMITH: Well, the way I would
19 see it that you could adopt your resolution in whatever
20 form you choose and it is effective because you adopted
21 it and it applies wi thin your area of jurisdiction. The
22 issue is does Rule H apply in that circumstance. I don't
23 see any way a utility tariff could invalidate what a
24 public highway agency did. It just can't because you're
25 operating within your area of jurisdiction. The issue
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60 COLLOQUY
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20
1 would be does Rule H apply or does it not.
2 MR. SPEARS: Well, Madam Chair , with all
3 due respect, I think that you have just made and
4 demonstrated our concern regarding jurisdiction.
5 COMMISSIONER SMITH: But whether Rule H
6 applies or not is for the Commission to determine.
7 You've already made your resolution and done your thing
8 wi th regard to the roads.
9 MR. SPEARS: But this provision of Rule H,
10 Section 10 states that if our legally binding guidelines
11 are not similar, then they're invalid.
12 COMMISSIONER SMITH: No, it does not. The
13 world "invalid" is not here in any sense. It can't
14 operate that way.
15 MR. SPEARS: Effectively it does.
16 COMMISSIONER SMITH: The tariff is only
17 applicable to the utility and the people who are taking
18 services under the conditions where the rules apply. It
19 cannot invalidate your resolution.
MR. SPEARS: Madam Chair, I guess that we
21 reach a friendly disagreement on what the effect of this
22 provision is. We view it as a direct encroachment upon
23 our exclusive jurisdiction.
24.25
COMMISSIONER SMITH: And I would think
that you should view it as an accommodation of your
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61 COLLOQUY
.
.
.25
1 existing practices so that they don't get in the way of
2 what's already in place.
3 Anybody else?
4 COMMISSIONER REDFORD:I just have one
5 other question. While we are dealing with the issue of a
6 tariff and with your resolution, it seems to me that you
7 would want to have brought this in a district court under
8 a declaratory judgment action, and after all, we are
9 dealing with Rule H in a tariff decision, not really a
10 jurisdictional setting. It seems like you've chosen to
11 get involved here on the basis of some sort of a conflict
12 of laws or conflict of regulations or tariffs and I'm
13 just wondering if your best place to have resolved this
14 would have been in a district court. You don't have to
15 answer that if you don't want to.
16 COMMISSIONER SMITH: Commissioner
17 Kempton.
18 COMMISSIONER KEMPTON: Thank you,
19 Madam Chairman. Mr. Spears, I have just one other
20 question. Resolution 330, what are the provisions for
21 cancellation of that resolution between the parties?
22 MR. SPEARS: Madam Chair, Commissioner,
23 that resolution is effective until it is repealed by the
24 commission, by the Ada County Highway District
Commission.
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62 COLLOQUY
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1 COMMISSIONER KEMPTON: And so all of the
2 good practices as far as the utility is concerned, those
3 are being conducted under a resolution, the cancellation
4 of which is the prerogative of ACHD?
5 MR. SPEARS: Madam Chair, Commissioner,
6 yes, that is correct. For example, Resolution 330
7 repealed an earlier resolution, 232, and it established a
8 revised policy with respect to relocation of public
9 utili ty and sewer facilities, so it is an act of our duly
10 elected commission.
11 COMMISSIONER KEMPTON: And Mr. Spears, if
12 that Resolution 330 is accomplishing beneficial purposes
13 to ratepayers, as Idaho Power has indicated, lacking the
14 defini tion of something that would do the same thing in
15 tariff language, like Section 10, if the Commission
16 doesn't encourage Idaho Power to incorporate that kind of
17 language in tariff that would be applicable to the other
18 public highway agencies across the state, it also can't
19 have any authority to help maintain a resolution that is
20 obviously beneficial to the purposes of the utility and
21 apparently in some fashion to ACHD and yet, ACHD is the
22 one that has the cancellation authority, doesn't ask any
23 questions of Idaho Power. It's not contingent on
24 anything. It's essentially a contract written in a
25 resolution that ACHD can cancel at any time.
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63 COLLOQUY
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1 I don't see that as serving good public
2 purpose in having that kind of looseness in cost
3 allocations when it can just as easily be incorporated as
4 Idaho Power has done in their proposal for Section 10,
5 and again, I assert that the Commission has
6 jurisdictional authority on the basis of an oversight
7 responsibili ty for customers of Idaho Power to see that
8 something like Resolution 330 is incorporated in Section
9 10, and to the extent that Section 10 violates some other
10 deeper concerns other than what's specifically identified
11 in Resolution 330 as beneficial, I would submit that the
12 process should be one of eliminating those elements that
13 are in conflict with Resolution 330 or wi thin the
14 authorities of ACHD just as a basis, a model for going
15 ahead with Section 10, but I do believe that that
16 jurisdictional, parallel jurisdictional , responsibility
i 7 of the PUC through statute, recognizing that we cannot as
18 a Commission interfere with the explicit authority of
19 public highway agencies, I still feel that there's a
20 jurisdictional line that extends over into that area and
21 that it can be seen in the incorporation of Section 10.
22 That's all I have to say. It's just a jurisdictional
23 question and we're not there yet.
24 COMMISSIONER SMITH: Commissioner Redford.
25 COMMISSIONER REDFORD: What about -- you
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64 COLLOQUY
.
.
.
1 also have, could have, a situation where you would want
2 to reroute an irrigation canal and let's assume that the
3 irrigation canal was under an irrigation district which
4 is a taxing organization or agency, would you feel as
5 well that your regulations would trump, for instance, an
6 irrigation district?
7 MR. SPEARS: Madam Chair, Commissioner, I
8 haven't thought that through enough to give an answer.
9 COMMISSIONER REDFORD: I don't want to
10 push you to answer something that you haven't considered.
11 MR. SPEARS: I apologize.
12 COMMISSIONER REDFORD: No further
13 questions.
14 COMMISSIONER SMITH:It appearing that the
15 Commission has exhausted its questions and exhausted the
16 audience, if there's nothing further to come before us on
17 this issue, we will consider the issue of the
18 Commission's jurisdiction over this part of Rule H to be
19 fully submitted and we will consider it based on the
20 filings that have been made previously and the oral
21 argument that we've heard this day.
22 We want to thank everyone who participated
23 and discussed this and helped us in our understanding of
24 these issues and we will issue an Order as soon as
25 possible on this case and so with that, the oral argument
CSB REPORTING
( 2 0 8) 8 90 - 519 8
65 COLLOQUY
.1 is adjourned.Thank you.
2 REDFORD:ThankCOMMISSIONER you,
3 everyone.
4 MR.SPEARS:Thank you.
5 (The oral argument adjourned at 3: 10 p.m. )
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(208 )890-5198
.1 AUTHENTICATION
2
3
4 This is to certify that the foregoing oral
5 argument held in the matter of the application of Idaho
6 Power Company for authority to modify its Rule H line
7 extension tariff related to new service attachments and
8 distribution line installations, commencing at 1: 00 p. m. ,
9 on Tuesday, October 13, 2009, at the Commission Hearing
10 Room, 472 West Washington Street, Boise, Idaho, is a true
11 and correct transcript of said oral argument and the
12 original thereof for the file of the Commission..
20
21
22
23
24.25
13
14
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16
17
18 ,\"\1\11"","
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CSB REPORTING
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67 AUTHENTICATION