20230523_GNRU2203_cb.pdf

DECISION MEMORANDUM 1

DECISION MEMORANDUM

TO: COMMISSIONER ANDERSON
COMMISSIONER HAMMOND
COMMISSIONER LODGE
COMMISSION SECRETARY
COMMISSION STAFF
LEGAL

FROM: CHRIS BURDIN
DEPUTY ATTORNEY GENERAL

DATE: MAY 23, 2023

SUBJECT: IN THE MATTER OF DONALD SORRELL’S COMPLAINT AGAINST
SUNNYSIDE PARK UTILITIES; CASE NO. GNR-U-22-03.

On March 9, 2022, Donald Sorrells (“Complainant” or “Sorrells”) filed a complaint
(“Complaint”) against Sunnyside Park Utilities (“Company” or “SPU”), an un-regulated small
water company with the Idaho Public Utilities Commission (“Commission”). Sorrells alleged that
SPU had notified him that it intended to terminate his water service pursuant to violations of
IDAPA 31.21.01.302, and Sorrells requested that the Commission prohibit SPU from terminating
his water service. Sorrells further requested the Commission find that SPU was a regulated public
utility subject to the regulatory authority of the Commission.
After reviewing the record and the arguments of the parties, on August 23, 2022, the
Commission issued Order No. 35513. The Commission found that, based upon the evidence
submitted, the Company was subject to the Commission’s regulatory authority as a public utility.
The Commission gave the Company until September 23, 2022, to file for a Certificate of Public
Convenience and Necessity (“CPCN”).
On September 7, 2022, the Company filed motions to amend its answer, to stay Order No.
35513, and to review Order No. 35513. The Company represented that it had transitioned into a
nonprofit corporation that was statutorily exempt from Commission regulation. The Company
submitted new documentation in support of its motions and amended answer.
On September 26, 2022, the Commission issued Order No. 35534 granting the Company’s
petition for review, motion to amend, and petition to stay. After reviewing the record and the
DECISION MEMORANDUM 2

arguments of the parties, on December 27, 2022, the Commission issued Order No. 35645
affirming Order No. 35513 and ordering the Company to file an Application for a CPCN.
On January 17, 2023, the Company filed a petition for review of Order No. 35645, a
petition to stay Order No. 35645, a petition to designate order as final, and a request for a regulatory
taking analysis. On February 17, 2023, the Commission issued Order No. 35681 granting the
Company’s petition to review Order No. 35645 and granting the Company an additional thirty (30)
days to present additional evidence in support of its claim of exemption from Commission
jurisdiction. The Commission ordered the Company to work with Commission Staff (“Staff”) to
receive advice and assistance in submitting any additional evidentiary support.
On March 20, 2023, the Company filed additional evidentiary documents in support of its
claim of exemption from Commission jurisdiction. The Company represents that pursuant to Order
No. 35681, the Company worked with Staff regarding its submission.
On April 12, 2023, the Commission issued Order No. 35737. After it reviewed the record,
the arguments of the parties, all submitted evidence, and the particular facts and circumstances of
this case, the Commission found that the Company was not subject to the Commission’s regulatory
authority under Idaho Code § 61-104 because the Company is organized and operated for service
at cost and not for profit. Based on its analysis, the Commission determined that it lacked
jurisdiction over the substantive issues in the Complaint and dismissed the Complaint.
Petition for Reconsideration
On May 2, 2023, Sorrells filed a Petition for Reconsideration (“Petition”). Sorrells argues
that reconsideration is necessary to remedy the lack of due process and to apply the Commission’s
regulations governing whether the Company, before its conversion to a bona fide non-profit
corporation, could use Sorrells’ past actions as justification to terminate Sorrells’ water service.
Sorrells argues that he is entitled to reconsideration of the way the Commission disposed
of this matter and that the Commission should assess the sworn evidence Sorrells submitted against
the mere allegations by the Company. Sorrells contends that the Commission should issue an Order
that determines any attempts to terminate Sorrells’ water service based on past actions that were
under the Commission’s jurisdiction are unlawful and prohibited.

DECISION MEMORANDUM 3

Answer to Petition
On May 9, 2023, the Company filed an Answer to Petition for Reconsideration (“Answer”).
The Company argues that Sorrells’ request for reconsideration should be denied. The Company
argues that it has established that it is organized and operated at cost and not for profit, and that
the Commission lacks jurisdiction. The Company contends that Sorrells has provided no evidence
or argument to contradict the Company’s non-profit status, and that the Company was never under
the Commission’s jurisdiction because the Company has never operated for profit.
The Company concludes that Sorrells has failed to establish, or even argue, any basis for
the Commission to exercise jurisdiction over the Company, nor has Sorrells established that he has
been deprived of any due process right.
LEGAL STAFF RECOMMENDATION
The Deputy Attorney General assigned to the case (“Legal Staff”) reviewed the Petition,
Answer, and all submitted materials. Legal Staff recommends that the Commission deny the
Petition.
Idaho Public Utility Commission Rule of Procedure 331 provides:
Petitions for reconsideration must set forth specifically the ground or grounds why
the petitioner contends that the order or any issue decided in the order is
unreasonable, unlawful, erroneous or not in conformity with the law, and a
statement of the nature and quantity of evidence or argument the petitioner will
offer if reconsideration is granted.
IDAPA 31.01.01.331.01 (emphasis added). Further, “the petition . . . must state whether the
petitioner . . . requests reconsideration by evidentiary hearing, written briefs, comments, or
interrogatories.” IDAPA 31.01.01.331.03.
In this case Sorrells fails to provide argument or authority to show that the Commission’s
determination on the issue of jurisdiction was “unreasonable, unlawful, erroneous or not in
conformity with the law.” Further, Sorrells does not state whether he is requesting reconsideration
by “evidentiary hearing, written briefs, comments, or interrogatories.” Based upon these Rule 331
deficiencies, Legal Staff recommends that the Commission deny the Petition.
However, even if the Commission were to grant reconsideration, and consider the
arguments that are contained in the Petition, Legal Staff still recommends that the Commission
deny the Petition.

DECISION MEMORANDUM 4

Sorrells argues in the Petition that:
This action began when the District Court in Bonneville County, Idaho, ruled that
disputes between Donald Sorrells and SPU were within the jurisdiction of the IPUC
and must be resolved in that forum, not the District Court. See attached
Memorandum Decision of March 2, 2022 citing IDAPA regulations, etc.
Petition at 1 (emphasis added). This assertion is incorrect.
The District Court in Bonneville County reasoned that the Idaho Public Utilities
Commission retains original jurisdiction over interpreting rules and resolving formal complaints
where Idaho water corporations are concerned. Petition at 18. Specifically, the court stated:
Therefore, in the matter concerning whether Sunnyside is in Violation of Idaho
Admin Code r. 31.21.01.602.01, it is the finding of this Court that the District Court
does not have subject matter jurisdiction over this matter and that the IPUC
specifically reserves and therein retains the authority in this matter to reach a final
judgment in the matter.
Petition at 19. As the Commission has determined that the Company is not a water corporation
that is subject to the Commission’s regulatory authority, all arguments concerning the application
of the Commission’s rules and regulations have become moot, and any arguments with respect to
the contractual relationship between Sorrells and the Company concerning the provision of water
services are not matters within the Commission’s power to adjudicate.
In paragraphs 1(a) and 1(b), Sorrells argues that when this action began, the Company was
a water corporation subject to the jurisdiction and orders of the Commission. Sorrells contends
that fact is confirmed by the Commission’s own orders and the Company’s own admissions.
Sorrells is incorrect. Petition at 2.
Statements of parties and the representations made between parties do not create
jurisdiction. Regardless of whether the Company or Sorrells indicates or even openly states that
the Company is a water corporation under the Commission’s jurisdiction, that is a determination
that can only be made by the Commission. In this case, after reconsidering all previous
interlocutory orders, the Commission issued a final order and determined that the Company does
not fall under the Commission’s jurisdiction.
In paragraphs 2(a), 2(b), and 3, Sorrells argues that his due process rights have been
violated. Sorrells contends that there have been numerous ex parte contacts between the
Commission Staff and the Company, and that Staff ignored his evidentiary submissions. Petition
at 2-3. Sorrells arguments are without merit.
DECISION MEMORANDUM 5

Sorrells presents no authority for his assertions regarding due process and ex parte
communications. Sorrells contends, without support, that the Commission and Commission Staff
are considered a singular entity. That assertion is incorrect. Idaho Public Utility Commission Rule
of Procedure 37 provides that: “Commission Staff may appear in any Commission proceeding as
an impartial representative of the public interest with all rights of participation as a party would
have. If counsel is desired, a Deputy Attorney General for the Commission represents the Staff.”
Communication between Commission Staff and other parties in a case does not constitute ex parte
communication. In this case Sorrells was provided with notice and an opportunity to respond to
every motion, petition, pleading, interlocutory order, and final order contained in the record. There
was no violation of Sorrells due process rights.
Additionally, Sorrells arguments concerning his evidentiary support relate only to acts that
would be analyzed under the Commission’s rules and regulations. As noted above, all arguments
concerning the application of the Commission’s rules and regulations have become moot, and any
arguments with respect to the contractual relationship between Sorrells and the Company
concerning the provision of water services are not matters within the Commission’s power to
adjudicate.
Finally, in paragraph 4 of the Petition, Sorrells argues that the Commission “did rightly
have jurisdiction over SPU and over the question of whether Mr. Sorrells’ past actions would allow
SPU to terminate the water service to his commercial property.” Petition at 4. This assertion is
without merit and contradicted by the record. Sorrells does not present any authority for this
assertion. As explained above, the Commission determined that it does not have jurisdiction over
the Company in this case.
Based upon the above analysis, Legal Staff recommends that the Commission deny the
Petition.
COMMISSION DECISION
1. Does the Commission wish to deny Sorrells’ Petition for Reconsideration?

_______________________________
Chris Burdin
Deputy Attorney General

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