20120423Vol I Oral Argument.pdf

ORIGINAL
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF IDAHO POWER COMPANY FOR ) CASE NO. IPC-E-08-22
AUTHORITY TO MODIFY ITS RULE H
LINE EXTENSION TARIFF RELATED TO
NEW SERVICE ATTACHMENTS AND
DISTRIBUTION LINE INSTALLATIONS. ) ORAL ARGUMENT
BEFORE m
..... U0 .r 0 rn
COMMISSIONER MARSHA SMITH (Presiding)
COMMISSIONER PAUL KJELLANDER
COMMISSIONER MACK REDFORD Cn
u1
PLACE: Commission Hearing Room
472 West Washington Street
Boise, Idaho
DATE: April 19, 2012
VOLUME I Pages 1 - 37
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Constance S. Bucy, CSR No. 187
23876 Applewood Way * Wilder, Idaho 83676
[phone] * [phone]
Email [e-mail]
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AP PE
For the Staff:
For Idaho Power Company:
For Ada County Highway
District:
For Build Idaho:
ARANCES
Weldon Stutzman, Esq.
Deputy Attorney General
472 West Washington Street
Boise, Idaho 83720-0074
Lisa Nordstrom, Esq.
and Patrick Barrington, Esq.
Idaho Power Company
Post Office Box 70
Boise, Idaho 83707-0070
HAWLEY TROXELL ENNIS &
HAWLEY LLP
by D. John Ashby, Esq.
877 Main Street, Suite 1000
Boise, Idaho 83702
HOLLAND & HART LLP
by Scott D. Hess, Esq.
Post Office Box 2527
Boise, Idaho 83701
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BOISE, IDAHO, THURSDAY, APRIL 19, 2012, 10:00 A. M.
COMMISSIONER SMITH: Good morning, ladies
and gentlemen. This is the time and place set for an
oral argument before the Idaho Public Utilities
Commission. My name is Marsha Smith. I'm one of the
Commissioners and I will conduct today's oral argument.
On my right is Commissioner Mack Redford and on my left
is Commissioner Paul Rjellander who is also the President
of the Commission.
We'll start with the appearances of the
parties. Ms. Nordstrom.
MS. NORDSTROM: Good morning. I'm Lisa
Nordstrom for Idaho Power Company and accompanying me
today is Pat Harrington.
COMMISSIONER SMITH: Mr. Ashby.
MR. ASHBY: It's John Ashby for the Ada
County Highway District.
COMMISSIONER SMITH: Mr. Hess?
MR. HESS: Yes, Scott Hess from Holland &
Hart representing Build Idaho, Inc.
COMMISSIONER SMITH: And for the
Commission Staff.
MR. STUTZMAN: Madam Chairman, I'm Weldon
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Stutzman, Deputy Attorney General, with the Commission.
COMMISSIONER SMITH: I see others in the
room, but I'm assuming they don't intend to make an
appearance. They're hiding their faces. All right,
we're here today to -- the Commission has before it
petitions for reconsideration in the matter of the Rule H
tariff, sections 10 and 11, and as part of our thoughts
of whether we should grant or deny reconsideration, we
thought it would be helpful to have the opportunity to
hear the parties and ask questions, so we're very
grateful that you were available and came today to help
us out with that.
I have passed out, and I hope everyone
has, a copy of the relevant portions of the tariff which
was approved March 15th of 2012, and I would ask our
court reporter to mark that as Exhibit 1. I thought this
might make the transcript more clear since there are
different versions and different language that people
have proposed. If we all have the same copy and work
from that, then everybody who reads the transcript will
understand what is happening.
I want to let everyone know that the
Commission has read your briefs and your filings and we
are familiar with them, so there's no need to repeat
everything you said there. We can read and we've done
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22 modify its Rule H line extension tariff related to new
23 service attachments and distribution line installments.
24 MR. ASHBY: Thank you, and again, my name
25 is John Ashby on behalf of the Ada County Highway
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it, but we're very interested in additional points you
wish to make or items you wish to emphasize, so with
that, are there any preliminary matters to come before
us? Then Mr. Ashby, I think we'll start with you.
MR. ASHBY: Thank you. Would you like me
to stand or should I stay seated?
COMMISSIONER SMITH: It's customary here
at the Commission to just sit in your chair.
MR. ASHBY: Perfect.
COMMISSIONER SMITH: Sometimes people are
here a long time. We don't expect them to stand.
MR. ASHBY: Thank you very much and I
would like to thank the Commission for allowing us this
opportunity to appear before you and discuss our concerns
with the Commission's recent Order related to section
H.
COMMISSIONER SMITH: So there's one thing
I forgot to do, Connie, and that was identify the case.
This is Idaho Public Utilities Commission Case No.
IPC-E-08-22, further identified as in the matter of the
application of Idaho Power Company for authority to
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District. We're here after, I guess, somewhat of a long
road which started when Idaho Power submitted an
application to amend its or to modify its Rule H tariff
back in October of 2008, and I wanted to point out for
the Commission, and I'm going to try not to repeat too
much of what's in my brief, but point out to the
Commission that when Idaho Power submitted its
application to modify its Rule H, the purpose of that or
one of the purposes of it was to add a new section 10
which dealt with utility relocation in the circumstances
around where 'a public road agency like ACHD requires
Idaho Power to relocate its facilities, and when Idaho
Power submitted its application and explained the reason
for which it wanted to add this section 10, and what I'm
reading from is Idaho Power's initial application at page
6, they stated that the reason for the application to add
section 10 was "to address third-party requests affecting
utility facilities in public rights of way."
And so what Idaho Power suggested in its
initial application was a system under which the
Commission could charge third-party beneficiaries for
utility relocation demands from public road agencies
under kind of a three-part system: One, where if the
public road agency demanded utility relocation purely for
its own benefit or for the benefit of the public that
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Idaho Power would bear the entire cost of the relocation.
The second scenario would be where the
public road agency demands utility relocation in part for
its own benefit, or for the benefit of the public, and in
part for the benefit of a private beneficiary, and in
that case, the Commission could charge the private
beneficiary for the portion of the utility relocation
that it attributed to the benefit of that private
beneficiary.
Then the third part of that system was
where the request came from the public road agency, but
was deemed to be purely for the benefit of the private
beneficiary, meaning the private beneficiary paid for the
public road improvement project, and under that
circumstance, the Commission would charge the private
beneficiary for the entire cost of the utility
relocation.
The other part that was new to Rule H was
section 11 which was added later which was a section
addressing obligations of various parties under the
statute, Idaho Code section 40-210, and there was a
statement in that section 11 that talked about how Idaho
Power and other parties would comply with various
obligations under that statute.
As the Commission knows, ACHD objected to
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the proposed section 10, ended up appealing that to the
Idaho Supreme Court, and the Idaho Supreme Court set
aside section 10 and section 11, and the Commission, I
think, stated very well and very clearly in its recent
Order, Order No. 32476, what the Idaho Supreme Court's
objections were.
The Commission explained at page 6 of that
Order that section 10 was set aside because it
impermissibly authorized the Commission to require a
third party to pay for relocation services not requested
by that party, and it set aside section 11 because it --
because section 11 too broadly directed parties not
regulated by the Commission to comply with the statutory
obligations of the Idaho Code section.
What I'd like to do today now that
we're -- we're back in front of the Commission because
17 Idaho Power sought to amend Rule H to meet the objections
18 of the Supreme Court and that's the statute that we're
19 dealing with. We're here under Idaho Code section 61-629
20 which authorizes the Commission to amend the Order that
21 was set aside to meet the objections of the court, so
22 that's what we're here today to discuss, and what I'd
23 like to do is go through the Order in the form that was
24 approved by the Commission, which is Exhibit No. 1 before
25 us, and explain ACHD's objections to that and try to
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• ± explain or try to suggest a way that the Order can be
2 modified in a way that will make it meet the objections
3 of the Idaho Supreme Court.
4 That's my intention today and I'll start
5 with the first paragraph because that comes first. The
6 first sentence is identical to the previous version of
7 section 10 and it is fine. The second sentence refers to
8 Idaho Code section 40-210, much like the prior version of
9 section 10 did, which was set aside because it had
10 required not just Idaho Power, but other parties to
11 comply with that statutory section.
12 The second sentence in the first paragraph
13 does much the same thing, although in a slightly
14 different way. It refers to section 40-210 and it states
15 the Company will meet with the public road agency as
16 provided in Idaho Code section 40-210, and frankly, I
17 think part of our disagreement is in some way just
18 semantics, that we seem to agree that the Commission has
19 authority to direct Idaho Power in its obligations. It
20 can direct Idaho Power to comply with the statute.
21 As the Idaho Supreme Court held and I
22 think the Commission and both Idaho Power have
23 acknowledged, the Commission doesn't have authority to
24 direct ACHD as to its obligations under the statute, and
25 we view the second sentence in that it directs Idaho
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I'f\flt fl((\ 1 r\e UO) OUfl.'O
I Power -- it states that the Company will meet with the
2 public road agency, and when the Commission directs Idaho
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Power to meet with the public road agency, ACHD, that's a
directive both at Idaho Power and at ACHD.
5 Frankly, I think it would be easy to
5 reword that first paragraph in a way that directs only
7 Idaho Power, to simply change it to state that the
3 Company will comply with Idaho Code section 40-210, to
9 simply restate it in a way that it's only directing the
) Company as to its obligations and not public road
I agencies as to theirs.
2 I'll move on to the second paragraph
3 unless the Commission has any questions on that first
one. The second paragraph in Exhibit 1, as Idaho Power
5 has acknowledged, is basically -- in a lot of ways it's
5 background information. It sets forth the common law
7 rule, which is that when a public road agency demands
3 that utility facilities be relocated that the utility
9 will relocate them, and in fact, the version of section
) 10 that was initially approved by the Commission back in
1 2008 or 2009, it stated the common law rule precisely.
2 In fact, I brought with me today a copy of the Order that
3 the Commission had approved back in 2008 or 2009. It's
1 Order No. 30955. I don't know that it's necessary to
5 submit it as an exhibit, but it might be helpful for the
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Commission to have it in front of you.
COMMISSIONER SMITH: It's not necessary to
3 have it as an exhibit and I think the Commission has
4 Order 30955 in its Commission notebooks.
5 MR. ASHBY: Perfect, thank you.
6 COMMISSIONER SMITH: Our rules allow us to
7 take notice of our own orders.
8 MR. ASHBY:
9 very much. That version
10 the second sentence --
11 COMMISSIO1I
12 page?
13 MR. ASHBY:
14 the number that I have is
15 to Order No. 30955. It's
16 appendix. Thank you. TI-
17 states precisely the corm
18 request of a public road
19 relocate its distributior
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Great, thank you. Thank you
of section 10 that was approved,
JER SMITH: Are you on a certain
It is page -- in the record
No. 677, but it's the appendix
the second page of that
ie second sentence in section 10
on law rule, which is at the
agency, the Company will
i facilities from or within the
r. That's the version that went
ourt. The Idaho Supreme Court
iguage. The Supreme Court did
1 general the common law rule,
rule, didn't make any changes to
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Now, when we came back on this motion to,
for an amended Rule H, section 10, Idaho Power suggested
new language that changed that and that's in -- it's the
second paragraph and really all it does is it adds a
qualifier to Idaho Power's obligations to relocate their
facilities and states -- you know, leads with the
qualifier of if a public road agency determines that the
Company's facilities incommode the public use of any
road, highway or street. We view that as a
qualification. It's unnecessary. It seems to be a
qualification as to the circumstances under which Idaho
Power would relocate its facilities that's contrary to
the common law rule and simply adds extra language that
is not necessary.
What I would suggest is that the new Order
repeat exactly what the original Order stated, the
section that was not set aside by the Supreme Court, to
simply restate it just like the original section 10, that
at the request of a public road agency, the Company will
relocate its distribution facilities from or within the
public road rights-of-way.
I'll move on to the third paragraph unless
you have any questions. The third paragraph really
was -- it was the central focus of the Idaho Supreme
Court's opinion in that the third paragraph here
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addresses -- it addresses the Commission's ability to
charge third parties for utility relocations demanded by
public road agencies, and the Supreme Court addressed --
there's a paragraph that's throughout all the briefing in
front of the Commission that lays it all out what the
Supreme Court analyzed, and it started with the sentence
that's been quoted often for the Commission that the IPUC
certainly has the authority to determine the costs that
the Company can charge a private person who requests
services from the Company, we don't contest that.
In fact, that's what section 6 of Rule I-I
discusses is where a private party requests services,
including utility relocations on their own private
property or on private roads, that they can be charged
for that service. What the Court explained is that the
prior version of section 10 went much further than that
in that it set up a system under which -- it states here,
the IPUC has the authority to determine whether the
relocation in whole or in part is for the benefit of a
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third party, meaning that three-pronged system that I
21 discussed at the beginning here today.
22 The Court went on to say that under
23 section 10 as proposed, section 10 would allocate all or
24 a portion of the costs of relocation to that third party.
25 It explained that the effect of that would be that the
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IPUC could require a third party to pay for services that
the third party did not request from the Company if the
IPUC determined that a relocation required by a public
road agency benefited the third party, which was the
whole system we had set up, that if the public road
agency demands the utility relocation under section 10,
the Commission would have been authorized to determine
that all or a portion of that utility relocation demand
should be attributed to a request from the third party,
and the Court concluded and determined that the
Commission doesn't have that authority by stating the
IPUC has not pointed to any statute granting it that
authority.
That's the central -- that's the crux of
the Idaho Supreme Court's decision is that a utility
relocation demand is not a request for service from a
third party. It's a demand from a public road agency,
that the Commission doesn't have the authority to require
the third party to pay for that as if it were a request
from the third party.
Now the new section 10, paragraph 3, in
22 ACHD's view does exactly what the Idaho Supreme Court
23 stated the Commission doesn't have authority to do in
24 that it allows the Commission or Idaho Power to determine
25 that a demand for a utility relocation from the public
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I'll end it with that.
COMMISSIONER SMITH: Thank you, Mr. Ashby.
I do have a couple of questions, and you're here today,
are you representing Ada County Highway District only or
do you represent other road agencies?
MR. ASHBY: I represent only Ada County
Highway District.
COMMISSIONER SMITH: And Ada County
Highway District has a resolution 330, does it not?
MR. ASHBY: That's correct.
COMMISSIONER SMITH: And is resolution 330
still being used by the Ada County Highway District?
MR. ASHBY: I don't know and I don't see
resolution 330 as being at issue in this hearing.
COMMISSIONER SMITH: Well, it really
isn't, but it was such a good template that resolution
330 was the basis on which the original Idaho Power
tariff was founded because it was a simple to use and
sensible method of determining when costs should be borne
by someone other than the general body of Idaho Power's
customers.
MR. ASHBY: That's correct.
COMMISSIONER SMITH: And ACHD was actually
exempted from the original tariff because it had
resolution 330, so that tariff didn't even apply to ACHD.
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I'm, I guess, interested in your argument that you think
a sentence directing the Company when it gets a notice to
meet pursuant to Idaho Code section 40-210, because if I
look at Idaho Code section 40-210, it's very clear that a
public highway agency or any private party working with a
public highway agency on a project that may require the
relocation of utility facilities in connection therewith,
shall, shall, permit the affected utility to participate
in project development meetings.
In addition, at the beginning of the
preliminary design phase of the project, the public
highway agency shall, upon giving written notice of not
less than 30 days to the affected utility, meet with the
utility for the purpose of allowing the utility to review
plans, understand goals, et cetera, all with the goal of
eliminating or minimizing utility relocation costs, so
those aren't our words. We're not mandating the road
agency to do anything, but the legislature certainly did,
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19 so are we to assume that you're going to choose not to do
20 this?
21 MR. ASHBY: Not at all. Ada County
22 Highway District acknowledges that the legislature has
23 mandated through section 40-210 all of those statements
24 you just read. Ada County Highway District is obligated
25 by that statute to meet with Idaho Power. It has. I
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1 don't believe there's ever been an instance that I'm
2 aware of where it hasn't. We don't dispute --
3 COMMISSIONER SMITH: So why are you
4 worried about us directing the Company, because when you
5 look at section 3 there in 40-210, it says if a utility
6 has received notice of the preliminary design meeting as
7 set forth in subsection 2 of this section and has failed
8 to respond or participate, such failure shall not in any
9 way affect the ability of the public highway agencies to
0 proceed, so that tells me that if you give the notice and
1 a utility doesn't participate, then you go ahead with it
2 and they've lost their opportunity, so this sentence to
3 me is telling the utility that you better be on your toes
4 and participate when you get the notice, and I can't in
5 my wildest imagination see how that directs any road
6 agency to do anything.
7 MR. ASHBY: I think there's a subtle
8 distinction there between directing the Company to comply
9 with its meeting obligations and when the Commission
0 states the Company will meet with public road agencies.
1 COMMISSIONER SMITH: When it gets the
2 notice, because this is what this says. The road agency
3 shall give the notice of the meeting and the Company,
4 according to the tariff, then, just better participate.
25 I don't think our -- this language to me doesn't tell the
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Highway District to do anything. The statute is what
made the responsibility, not the tariff.
MR. ASHBY: The statute created the
responsibility and Ada County Highway District will
comply with the statute.
COMMISSIONER SMITH: Thank you.
MR. ASHBY: The tariff states that the
Company will meet with the public road agency, which we
9 view as a statement that the public road agency will meet
10 with Idaho Power. It's purely that it's a directive
11 coming from the Commission.
12 COMMISSIONER SMITH: So you object to us • 13 repeating what the statute requires?
14 MR. ASHBY: The objection is that it is
15 directed at Ada County Highway District, just like --
16 COMMISSIONER SMITH: But Mr. Ashby, it's
17 not. The whole object of this sentence is the Company.
18 MR. ASHEY: Just like with the prior
19 version of section 11 when it stated that the Company and
20 other parties would comply -- would meet is what it
21 basically said. We view this as the same in that it
22 mentions the public road agency by name or by its title,
23 and when it directs the Company to meet with the public
24 road agency, it is telling both the Company and the
25 public road agency to meet.
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COMMISSIONER SMITH: I think that's just
bizarre. Do you have questions? Commissioner Redford.
COMMISSIONER REDFORD: Yes, moving on to
paragraph 3, are you telling us that you object to the
Company charging any other party for any of the costs for
the removal of the utilities? It seemed to me that you
were objecting to the words "directly or indirectly," but
from your argument this morning, it seemed to me that you
were talking about that the sole responsibility for the
Power Company is to remove the utility or to move it and
that the Power Company has no authority whatsoever to
backcharge or to charge any other customer who may be
affected or whether directly or indirectly requested the
action which brought about Ada County Highway District's
actions.
MR. ASHBY: I don't think it's me that's
making that statement. I think it's the Idaho Supreme
Court that held that the Commission doesn't have
authority to charge a third party for a demand that came
from the public road agency.
COMMISSIONER REDFORD: So the Company and
the ratepayers generally eat that cost?
MR. ASHBY: Whether that's the effect at
the end, I don't know. What I know is that's what's the
Idaho Supreme Court ruled in its decision.
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1 COMMISSIONER REDFORD: Only one other
2 question. Do you have any objection to the item No. 10
3 or 11?
4 MR. ASHBY: No, no objection to section
5 11.
5 COMMISSIONER REDFORD: Okay, did you
7 happen to look at the Idaho Power suggested change to
3 paragraph 3 of No. 10?
MR. ASHBY: Yes, I did.
) COMMISSIONER REDFORD: And that still
1 doesn't cure any problem that you've talked about this
2 morning, because they don't have the authority to charge
3 anybody?
MR. ASHBY: No, and it's still that the
5 context of section 10 is still in the context of where
5 the request or the demand for utility relocation comes
7 from the public road agency, and regardless of the
3 sentence talking about whether the request comes directly
or indirectly from a public road agency, it has to.
) That's what section 10 is all about is where it's the
L public road agency that makes the demand. I don't think
there could be a circumstance under which a private party
3 could request a utility relocation on a public
I right-of-way. It's not the private party's road. It's
25 the public road agency's.
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COMMISSIONER REDFORD: I understand that,
but it just seems to me that if a party -- and you're
absolutely stating that the Idaho Supreme Court has ruled
that the Power Company cannot charge any other person or
interested party for the cost of the change of the
utilities?
MR. ASHBY: Right, because the Idaho
Supreme Court is holding that --
COMMISSIONER REDFORD: Other than your
assisting the Idaho Supreme Court in making sure we
follow them, what is the interest of the Ada County
Highway District generally? I mean, why do you care?
MR. ASHEY: It simply is that we're back
under the Idaho Code standard that the Order can only be
amended to meet the objections of the Court and it
doesn't, so Ada County Highway District is stating that
objection.
COMMISSIONER REDFORD: I have no further
questions, Madam Chair.
COMMISSIONER SMITH: Thank you,
Commissioner Redford. I just want to follow up on one
item that Commissioner Redford asked. It can and has
happened, at least we're told, that a road movement has
been made because a private party wished it to be made,
and in one instance they went first to the utility, got
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the cost for doing that, then went to the road agency and
through discussions, the road agency said well, you let
us make the request and then you won't have to pay, so
what is the Commission to do to protect the ratepayers in
those circumstances, because even Ada County Highway
District's resolution 330 recognizes that sometimes roads
are changed or moved or whatever to benefit someone
besides the general public, and in those circumstances,
the people benefiting pay a portion that's deemed to be
the benefit they're deriving for their share of the costs
in this project, and why should the customers of Idaho
Power all throughout southern Idaho pay the share that is
done for the benefit of a third party?
MR. ASHBY: Your question is coming from a
policy perspective.
COMMISSIONER SMITH: Well, that's what we
do.
MR. ASHBY: Right, that's what you do.
What the Idaho Supreme Court did was determine whether
the Commission had the authority to do so.
COMMISSIONER SMITH: Thank you, Mr. Ashby.
That's the answer. Mr. Hess.
MR. HESS: Thank you. Well, I can be very
brief because I join the statements that were presented
by Mr. Ashby, but I do want to address the question of
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25 pretty frustrated at its attempts to address relocations
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and public road rights-of-way in this docket. Prior to
the appeal, ACHD declined Idaho Power's offer to
collaborate on acceptable tariff language that would work
for both of us. After the appeal and after Idaho Power
filed its motion with conforming tariff language in
response to the Supreme Court's opinion, ACHD contacted
Idaho Power and suggested that we work on language
together and provided us with language.
In the spirit of compromise, Idaho Power
accepted word for word the language that ACHD proposed
for the first two paragraphs of section 10, and we filed
that language with the Commission in January of this
year. In its memorandum of opposition filed on January
25th, ACHD then objected to the very language it proposed
last September.
All of this is water under the bridge and
I'm not mentioning it here to whine or to gripe about
that. I mention it only because Build Idaho and ACHD
imply that section 10 of the Rule H tariff is improper
and unnecessary, and Idaho Power would argue that section
10 is not limited to public road agency requests. It
covers any requests by ACHD or by private parties to
relocate from road rights-of-way.
Idaho Code Title 61, Chapter 5, sets forth
that the Commission can review requests for services,
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utility services, and charges for that service request
and that is what is laid out in section 10. The section
10 that was approved by the Commission in Order No. 32476
specifically focuses on the word request and that
addresses the issue, all the issues that are brought up
here today.
As you know, tariffs are really important
in the utility business. Once they're approved by the
Commission, tariffs comprise the utility's contract for
service and it forms the standard by which the actions of
the utility will be judged. They promote utility
transparency, accountability and consistent treatment of
customers.
As evidenced by this case, line extensions
and relocations can be very contentious and Idaho Power
cannot simply ignore the issues addressed in section 10
because Build Idaho and ACHD erroneously believe that the
mere mention of public rights-of-way in a tariff
governing cost recovery for utility relocations threatens
their authority.
The section 10 language approved by the
Commission in Order No. 32476 specifically references the
authority of the public road agencies and requires Idaho
Power to defer to it when the law requires. Idaho Power
contends that ACHD and Build Idaho have invented a
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monster where none exists. Moreover, it is unclear how
ACHD is harmed by the language that was approved in the
Commission's Order issued last month.
As noted by the Court on page 9 of its
opinion, ACHD has not pointed to any provision in section
10 that infringes upon its power or its jurisdiction.
That was true last spring and it's true today. In trying
to adopt a tariff that will meet any reasonable or
unreasonable criticism, this process has devolved
somewhat into a debate over semantics and torturing
statutes beyond reasonable interpretations.
As explained in Idaho Power's answer to
the petitions for reconsideration filed by Build Idaho
and ACHD, Order No. 32476 is lawful and it addresses the
Supreme Court's concerns. It does not need to be changed
in any respect in order to comply with the Supreme
Court's opinion. However, in an attempt to avoid further
litigation and to avoid any potential for
misunderstanding, Idaho Power indicated in its answer
that it would not object if the Commission removed the
phrase "directly or indirectly through a Public Road
Agency" from the third paragraph of section 10 if the
Commission so desired.
Idaho Power stands by that today and I'm
available to answer any questions you may have.
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CSB REPORTING 27 COLLOQUY
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COMMISSIONER SMITH: Just one curiosity
question, so are you aware of circumstances where private
people have asked for whatever reason that the Company's
I facilities that are present in a public road right-of-way
5 be moved?
5 MR. HARRINGTON: I believe the record
7 refers to a California situation in one instance,
3 Commissioner. I believe it was in the San Francisco area
) where a private entity requested a relocation of the
) utility facility from the road right-of-way and it was
L acknowledged that that request would be paid for by the
requesting private party.
3 COMMISSIONER SMITH: But it is not -- the
1 road agency has sole jurisdiction over moving the roadway
5 and altering the roadway, but it doesn't seem
5 unreasonable or out of, you know, the possibility, the
7 range of possibility, that a private party would want the
3 Company to move its facilities for whatever reason. They
) knew it was somethina it wants to do on its oroDertv --
20 that's adjacent to the public right-of-way.
21 MS. NORDSTROM: It has been Idaho Power's
22 experience that municipalities and public road agencies
23 work to promote development within their jurisdictions,
24 and if that means relocating or agreeing to move roads in
25 order to accommodate schools or shopping centers or
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museums or what have you, you know, they work to try and
do that, and sometimes we get requests from private
parties. We also get demands to relocate from public
road agencies and sometimes it's not always clear who is
who, but what the Company is requesting here is that when
a request has been made, you know, once the facilities
have been moved to satisfy the demands of the public road
agency that the Company determine whether or not a
request has been made to relocate facilities and then
make a determination based upon the facts if those costs
should be recovered from the party that made that
request.
MR. HARRINGTON: Further in response to
your question, Commissioner, you are absolutely right. A
private party could request that Idaho Power relocate or
bury facilities that are currently located in the road
right-of-way and we would do that at the expense of the
requesting party. For instance, you might have a
19 clearance issue. You might have some other overhead
20 condition that would cause the private party to want the
21 line buried even though it's within the road
22 right-of-way, so absolutely, that request could be made
23 by the private party.
24 COMMISSIONER SMITH: Do you have anything,
25 Commissioner Redford?
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1 COMMISSIONER REDFORD: It just seems to
2 me, Mr. Ashby and Mr. Hess, that you could have a
3 situation where you could have part of the private

4 party's or Idaho Power going to the District Court on
5 part of the issue and part going to the Commission for

S utilities, changing and relocating utilities, that didn't

7 impact or weren't on Ada County Highway District's

B property. How do you answer that situation?

9 MR. HESS: Well, Commissioner, yes, I

D think that's certainly a possibility. I mean, I think
1 the way that the Supreme Court has framed the issue in

2 their decision, it is a question, it's a jurisdictional

3 question. The extent of the jurisdiction of the

4 Commission and where the Commission's jurisdiction does
5 not go far enough, the potential remedy available is
6 through court proceedings.

7 COMMISSIONER REDFORD: And also through
B the Commission proceedings for property that doesn't abut
9 or property that's not on Ada County Highway District's

O property.

1 MR. HESS: Yes, but then I don't think it
2 would fall within 10, relocations in public road
4 .-.l- .-. . - -r 4 not - 4 4 - -

4J L.Ly1tL -L).L -wdy. IJ.. LL I1OL W..LLII.LL1 LI1 y11LULWy, LI1I1

24 section 10 would not apply.

25 COMMISSIONER REDFORD: So notwithstanding
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.that the utility had to do extra work for this third
party, that wouldn't apply either. I mean, they would
have to come to the Commission for that, and then once
you got to the Ada County Highway District line, you'd
have to go to the District Court, so what we would wind
up having would be -- just to explain a little bit.
Let's assume a third party 10 miles from the Ada County
Highway District wanted its facilities upgraded and in
order to do so, it would require some work on Ada County
Highway District's right-of-way. Well, what you're
telling us here is that if there's an issue as to a third
party reimbursing Idaho Power, that would be -- could be
at District Court for property on Ada County Highway
District's right-of-way, but what about the 10 miles of
upgrade from the private party to the Ada County Highway
District's right-of-way where we clearly have the
authority and Idaho Power has the right to charge for
upgrades, so we could be back at the Supreme Court
fussing over that.
MR. HESS: I think so. I think that as I
understand the Supreme Court's opinion, if the request is
made by the third party, which would be your situation
where they're 10 miles from any public road, that the PUC
has authority, but if the request for relocation is made
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is
2C
Supreme Court says is the issue is over from the
standpoint of the PUC's jurisdiction.
If Idaho Power wishes to pursue the third
party in District Court on some theory, the Supreme Court
said that's certainly something that is available, and I
think that brings up my concern with the proposed
modification from Idaho Power. If one or more private
beneficiaries has requested that the Company's facilities
be relocated, my concern with that is as requested from
whom. Again, as I read the Supreme Court, if the third
party is dealing with ACHD and ACHD determines that there
has to be a relocation, from the PUC's standpoint, the
jurisdiction is over. I think the Supreme Court has said
Idaho Power in that circumstance if they want to, they
can go into District Court to seek to recoup some of
their costs, but it's not an issue to be determined by
the PUC.
COMMISSIONER REDFORD: Thank you,
appreciate it.
COMMISSIONER SMITH: Did you have any
21 response to that, Ms. Nordstrom?
22 MS. NORDSTROM: I didn't.
23 COMMISSIONER SMITH: Mr. Stutzman, I think
24 you were referred to earlier as statements made at the
25 Supreme Court, do you wish to provide any
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clarification?
MR. STUTZMAN: Just briefly, Madam
Chairman, thank you. I didn't plan to present an
argument this morning, but to clarify, what was said at
the Supreme Court was fairly narrow and is spelled out in
the Commission's Order No. 32476 where the Commission
agreed at oral argument that it could not adjudicate a
dispute between Idaho Power, ACHD and a third party over
ACHD's determination of cost responsibility. That was
it. That was the end of the concession. It had nothing
to do with the question that we're dealing with here
where there's a proper tariff in place. Determining
.costs between Idaho Power and a private party and ACHD is
not involved in that process. There was no concession
made that the Commission does not have authority to
resolve that dispute between those two parties.
COMMISSIONER SMITH: Yes, Mr. Ashby.
MR. ASHBY: If I could just address that
comment, I think it's actually right in some ways. The
20 statement was that the Commission wouldn't have authority
21 to resolve a dispute between a third party and Idaho
22 Power when ACHD or some other public road agency is
23 involved, and that is the situation of section 10 and
24 section 10 only comes into play when a public road agency
25 has demanded the utility relocation. Section 6 applies
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1 where a relocation is as a result of a request from a
2 private party as to some other location, not a public
3 road agency. A private party cannot demand that Idaho
4 Power relocate its facilities on a public right-of-way.
5 That's within the public road agency's area of
6 jurisdiction.
7 COMMISSIONER SMITH: So it sounds like you
B disagree with Mr. Harrington that an individual who for
9 whatever reason wished that the Company's facilities,
0 say, for example, would be undergrounded as opposed to
1 overheaded or poles moved and they happen to be in a
2 right-of-way that that private party would have to go to
3 the road agency in order to get the utility to do that?
4 MR. ASHBY: I think so. I don't think a
5 private party has any right to demand or request that
6 action be taken on a public right-of-way. That's for the
7 public road agency to determine.
3 COMMISSIONER SMITH: And Mr. Harrington
disagrees.
) MR. HARRINGTON: That's correct.
21 COMMISSIONER SMITH: So that's where we're
22 at. Well, maybe we'll have a hearing. Is there
23 anything else that people wish to point out or enlighten
24 us with? Anything else?
25 MS. NORDSTROM: I would just point out
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that there's been .a lot of talk about what the Supreme
Court said about the Commission's jurisdiction, but the
Supreme Court's opinion also addressed the jurisdiction
of ACHD and where its limits were, and I just think that,
you know, a clear understanding of when ACHD's role has
been satisfied, when the relocations have been made,
completed in a timely manner and at no cost to the public
road agency that that is where the jurisdiction of ACHD
ends.
The jurisdiction of this Commission starts
when questions of cost recovery for requests for
relocation services have been made. That's where the
Commission has authority to determine if the rates and
charges for the utility relocation services were
appropriate and reasonable, and if a party who has
received the bill for that service has a dispute, then
they are entitled under Idaho Code 61-612 to file a
complaint with the Commission to resolve that dispute in
the Commission's rate setting capacity, so I do think
that there is a distinction between the jurisdiction of
public road agencies and the Commission and that should
22 be remembered as this decision is made.
23 COMMISSIONER SMITH: And I agree,
24 Ms. Nordstrom, and I think it was very clear and that's
25 why I was interested to know if resolution 330 was still
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(2O890-51
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A U T H E N T I C A T I 0 N
This is to certify that the foregoing oral
argument held 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, commencing at 10:00
a.m., on Thursday, April 19, 2012, at the Commission
Hearing Room, 472 West Washington Street, Boise, Idaho,
is a true and correct transcript of said oral argument
and the original thereof for the file of the Commission.
kS&tL .
CONSTANCE S. BUCY
Certified Shorthand Reporter/# 87
. .
. ............ R)'
0
j.
Slct \ /
CSB REPORTING 37 AUTHENTICATION
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Idaho Power Company First Revised Sheet No. H-14
Cancels
I.P.U.C. No. 29, Tariff No. 101 Original Sheet No. H-14 and H-15
RULE H
NEW SERVICE ATTACHMENTS
AND DISTRIBUTION LINE
INSTALLATIONS OR
ALTERATIONS
(Continued)
IDAHO PUBLIC UTILITIES COMMISSION
Approved Effective
March 12, 2012 March 15, 2012
Per O.N.32473
Jean D. Jewell Secretary
10.Relocations in Public Road Rights-of-Way
The Company often locates its distribution facilities within state and local public road rights-of-
way under authority of Idaho Code § 62-705 (for locations outside Idaho city limits) and the
Company's city franchise agreements (for locations within Idaho city limits). When the
Company is notified of a road improvement project pursuant to Idaho Code § 40-210, the
Company will meet with the Public Road Agency as provided in Idaho Code to § 40-210.
If a Public Road Agency determines that the Company's facilities incommode the public use of
any road, highway, or street, the Public Road Agency can require the company to relocate or
remove the facilities. If a Public Road Agency determines that the Company's facilities must be
relocated or removed because they incommode the public use of the road, highway, or street,
the Company will relocate its distribution facilities from or within the public road rights-of-way
and the Company will bear the costs of such relocation.
If one or more Private Beneficiaries has, directly or indirectly through a Public Road Agency,
requested that the Company's facilities be relocated or removed, the Company will use
reasonable efforts to recover that portion of the total Relocation or removal costs attributable to
the request from the Private Beneficiaries. If the Private Beneficiaries dispute the Company's
calculation of the Private Beneficiaries' cost responsibility, either the Company or the affected
Private Beneficiaries may initiate a proceeding to have the Commission establish the
reasonableness of the Company's calculation of the Relocation or removal cost responsibility as
between the Company and the Private Beneficiaries.
11.Existing Agreements
This rule shall not cancel existing agreements, including refund provisions, between the
Company and previous Applicants, or Additional Applicants. All Applications will be governed
and administered under the rule or schedule in effect at the time the Application was received
and dated by the Company.
EXHIBIT
IDAHO Issued by IDAHO POWER COMPANY
Issued per Order No. 32476 Gregory W. Said, Vice President, Regulatory Affairs
Effective - March 15, 2012 1221 West Idaho Street, Boise, Idaho