20231023Order_Re_Petition_for_Declaratory_Judgement_Order_No_35964.pdf

ORDER RE: THE CITY OF BURLEY’S PETITION FOR DECLARATORY JUDGMENT
ORDER NO. 35964 1
Office of the Secretary
Service Date
October 23, 2023
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF UNITED ELECTRIC
CO-OP INC.’S FORMAL COMPLAINT FOR
VIOLATION OF CONTRACT ENTERED
INTO PURSUANT TO THE IDAHO
ELECTRIC STABILIZATION ACT
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CASE NO. C15-E-23-01

ORDER RE: THE CITY OF
BURLEY’S PETITION FOR
DECLARATORY JUDGMENT

ORDER NO. 35964

On February 22, 2023, United Electric Co-op, Inc. (“United”) filed a formal complaint
(“Complaint”) with the Idaho Public Utilities Commission (“Commission”). United alleges that
the City of Burley, Idaho (“Burley” or “City”), violated a series of service agreements
(“Agreements”) related to the allocation of the respective electric service territory and customers
by and between the City and United, which were entered into pursuant to the Idaho Electric
Supplier Stabilization Act (“ESSA”), and that have been approved by order of the Commission.
Specifically, United’s Complaint concerns the construction of a milk processing facility
(“Facility”) that is being built by Suntado, LLC (“Suntado”). United represents that the Facility is
wholly within United’s service territory.
United requests that the Commission issue an order: (1) prohibiting the City from engaging
in further acts in violation of the Agreements; (2) prohibiting the City from providing electric
service to the Facility; and (3) requiring the City to remove all electrical connections, facilities
and/or equipment installed to serve the Facility.
On March 23, 2023, the Commission issued a Summons to Burley directing the City to file
a written answer to the Complaint within twenty-one (21) days of the service date of the Summons.
Burley’s Answer
On March 29, 2023, Burley filed an answer (“Answer”) to the Complaint, and a petition
for declaratory order (“Petition”). Burley specifically denies some of United’s Background and
locational Factual Allegations, and generally denies all of United’s remaining Factual Allegations
and all three of United’s Counts in the Complaint.
Burley requests that the Commission dismiss the Complaint in full and award it: (1) Entry
of an order dismissing United Complaint; (2) Entry of an order awarding Burley its attorney fees
and costs; and (3) Any further relief to which Burley may be entitled.

ORDER RE: THE CITY OF BURLEY’S PETITION FOR DECLARATORY JUDGMENT
ORDER NO. 35964 2
Burley’s Petition
Burley filed its Petition pursuant to Commission Rule of Procedure 101. Burley’s states
that its Petition is based on Commission “Order 29281.”1
Burley requests a declaratory ruling from the Commission finding that the previous
territory service agreement between the parties may be terminated by either party at any time.
Burley argues that the provisions of Idaho Code § 61-333B would then govern the re-negotiation
of a territory service agreement between the parties. Burley presents four arguments in its Petition:
1. The members who negotiated and entered the 1985 Territory Service
Agreement, and the 2003 amendment are no longer members of the bodies who
have the authority to negotiate and enter these Agreements.
2. No clause exists in any of the TSAs which prevents either party from
terminating the TSAs to renegotiate another.
3. Despite waiving conflict, there was a flagrant conflict of interest from
representation throughout the proceedings between the City of Burley and
United Electric Co-op.
4. Pursuant to Idaho Code 61-333B, statutory methods are available for citizens
to not be forced into using one service provider over another based on an
agreement entered into 37 years ago.
Burley requests that the Commission enter a Declaratory Order: (1) stating that Burley and
United both are entitled to terminate the 2003 Territory Service Agreement with reasonable notice
to the other party; (2) stating that the provisions of Idaho Code § 61-333B are now meant to govern
the negotiations between the parties; (3) awarding Burley attorney’s fees and costs; and (4) any
other relief the Commission sees fit.
United’s Answer to the Petition
United primarily argues that the Commission does not have jurisdiction to grant the relief
requested in Burley’s Petition.
The Commission’s implementation role is limited to either the approval or
the rejection of service territory allocation agreements. A role this commission
fulfilled when it issued Order No. 29355. That implementation role is, however,
strictly limited to just the power to “approve or reject” service territory allocation
agreements.
Answer to Petition at 16. United argues that the Commission is not empowered to interpret
agreements for any purposes, let alone to rule that they are terminable. Answer to Petition at 20.

1 It appears that Burley’s reference to Order No. 29281 is an error. Staff believes that the correct order is Order No.
29355.
ORDER RE: THE CITY OF BURLEY’S PETITION FOR DECLARATORY JUDGMENT
ORDER NO. 35964 3
United further argues that even if the Commission were to consider the arguments in the Petition,
Burley’s arguments are without merit.
Order No. 35855
On July 21, 2023, the Commission issued a Notice of Petition for Declaratory Judgment
and Notice of Evidentiary Hearing. Order No. 35855. In that order, the Commission found it
appropriate to serve copies of the Notice of Petition on all affected utilities and provide twenty-
one (21) days from the filing of the order to submit written comments in support of, or opposition
to, the petition.
Comments on the Petition
The Commission received four comments on the Petition. All the comments were from
Electric Service Providers, and all the comments were in opposition to the Petition. The comments
generally noted that the express purpose of the ESSA is to promote harmony among and between
electric suppliers, prohibit pirating of consumers of another electric supplier, discourage
duplication of electrical facilities, actively supervise certain conduct of electric suppliers, and
stabilize the territories and consumers served with electricity. The comments reasoned that voiding
service territory agreements will have the opposite effect and will increase costs, cause uncertainty,
require duplicative service lines, encourage pirating, and make long-range utility planning
difficult, if not impossible.
COMMISSION FINDINGS AND DECISION
The Commission has jurisdiction to issue declaratory orders under Title 61 of the Idaho
Code and the Idaho Uniform Declaratory Judgments Act of 1933, Idaho Code §§ 10-1201 et seq.
A declaratory judgment “must clarify and settle the legal relations at issue, and afford leave from
uncertainty and controversy which gave rise to the proceeding.” Harris v. Cassia County, 106
Idaho 513, 517, 681 P.2d 988 (1984). For a declaratory judgment to be rendered, there must be
“an actual or justiciable controversy” that is “real and substantial,” and “definite and concrete,
touching the legal relations of parties having adverse legal interests.” Id. at 516.
“In order for there to be a justiciable controversy there must be more than a difference or
dispute of a hypothetical or abstract character. Accordingly, a litigant seeking a declaratory
judgment must demonstrate that an actual controversy exists and that the requested relief will
provide actual relief, not merely potential relief.” ABC Agra, LLC v. Critical Access Grp., Inc.,
156 Idaho 781, 784, 331 P.3d 523, 526 (2014) (internal citations and quotations omitted).
ORDER RE: THE CITY OF BURLEY’S PETITION FOR DECLARATORY JUDGMENT
ORDER NO. 35964 4
Having reviewed the Petition, the record, and the arguments of the parties, the Commission
cannot find that Burley’s Petition presents a justiciable controversy for which the requested relief
will provide actual relief. Burley’s Petition provides:
Petitioner seeks a declaratory ruling from the Commission regarding the
2003 Order entered by the Commission. Specifically, Burley respectfully asks the
Commission to enter an Order that previous territory service agreement of the
parties can be terminated by either party, at which point the provisions of Idaho
Code §61-333B would govern the re-negotiation of a territory service agreement
between the parties.
Petition at 7-8.
A. Request for a Termination Provision
1. Jurisdiction for Relief
Based upon the Petition, it appears Burley requests that the Commission retroactively
modify the present Agreements between the parties to include a termination provision. As support
for the Commission’s authority to grant such relief, Burley argues:
An entity may petition the Commission to enter a declaratory order, and the
Commission has authority to grant the same. See Idaho Code §61-334B(3), IDAPA
31.01.01.101. The Commission has broad authority and jurisdiction “to supervise
and regulate every public utility in the state and to do all things necessary to carry
out the spirit and intent of the provisions of this act.” Idaho Code§ 61-501. Pursuant
to Idaho Code 61-333B, mechanism exist if parties are unable to come to voluntary
agreements regarding the provisions of public utilities to growing cities.
Petition at 11. Having reviewed the Petition, the Commission finds that Burley has failed to
provide any argument with analysis or authority to support a claim that the Commission may
modify agreements between United and Burley. While Burley cites to Idaho Code § 61-501, that
section specifically relates to public utilities. Similarly, Idaho Code § 61-334B(3) provides only
for the procedure before the Commission upon a petition by an electric supplier or consumer for
an exception to the provisions of section 61-332B or 61-332C(1)(a), (b) or (c); a situation not
present in this Petition.
2. Potential Relief
Even if Burley had presented sufficient argument and authority to establish that the
Commission could grant the relief requested, the Commission finds that Burley has requested
potential relief, not actual relief.
The basis of the Complaint is that United alleges Burley violated a series of Agreements,
entered pursuant to the ESSA, related to the allocation of the respective electric service territories.
ORDER RE: THE CITY OF BURLEY’S PETITION FOR DECLARATORY JUDGMENT
ORDER NO. 35964 5
Burley requests that the Commission issue an order declaring that the Agreements “can be
terminated by either party.” Petition at 7-8. Burley’s request for relief does not provide actual relief
for a number of reasons including: (1) Burley would still be subject to the current Agreements until
such time as, hypothetically, Burley or United elected to terminate the Agreements; (2) Burley
would potentially still be subject to claims for alleged violations of the Agreements and the ESSA
for the period the Agreements were in place, regardless of whether Burley elected to terminate the
Agreements following a Commission order; and (3) even in the absence of the Agreements, Burley
is still bound by the provisions of the ESSA.
B. Substantive Arguments
While the Commission has already determined that the Petition fails to establish
jurisdiction for the requested relief, and does not request actual relief, the Commission believes it
necessary to address the four arguments advanced by Burley in the Petition.
Burley’s first argument provides:
The members who negotiated and entered the 1985 Territory Service Agreement,
and the 2003 amendment are no longer members of the bodies who have the
authority to negotiate and enter these Agreements.
Petition at 8. Burley does not present any substantive argument, authority, or legal support for its
claim. Without argument or authority to support this claim, the Commission is left with nothing to
consider and finds Burley’s first argument meritless. Notably, even if the Commission were
persuaded by the argument, the logical relief would be to determine that the Agreements are now
void, not that the Agreements now contain a termination clause.
Burley’s second argument provides:
No clause exists in any of the TSAs which prevents either party from terminating
the TSAs to renegotiate another.
Id. at 8-9. Again, Burley does not present any substantive argument, authority, or legal support for
its claim. In the absence of any such argument or authority to support this claim the Commission
is once again left with nothing to consider and finds Burley’s second argument meritless.
Burley’s third argument provides:
Despite waiving conflict, there was a flagrant conflict of interest from
representation throughout the proceedings between the City of Burley and United
Electric Co-Op.
Id. at 9. Notably, Burley’s third argument is inconsistent in its very terms. Burley states that the
parties to the present Agreements waived any conflicts, but then claims that flagrant conflicts
ORDER RE: THE CITY OF BURLEY’S PETITION FOR DECLARATORY JUDGMENT
ORDER NO. 35964 6
existed and suggests, without support, that those conflicts are a reason for the Commission to act.
Burley again does not present any substantive argument, authority, or legal support for its claim.
It is the Commission’s understanding that conflict is a required element when parties agree
to waive conflict. Further, even if the Commission agreed that conflict existed and that the parties’
waiver of that conflict was ineffectual, the logical relief would be to determine that the present
Agreements are void; relief that Burley has not requested. The Commission finds Burley’s third
argument meritless.
Burley’s fourth argument provides:
Pursuant to Idaho Code 61-333B, statutory methods are available for citizens to not
be forced into using one service provider over another based on an agreement
entered into 37 years ago.
Id. at 10. Burley’s argument misconstrues the record before the Commission. Burley contends that
“[t]he Idaho legislature has contemplated an issue of two service providers not being able to reach
terms for an amended service agreement.” Petition at 10. However, in its Complaint, United
represents that it has used its best efforts to resolve the service territory dispute. United alleges that
on November 2, 2022, United tendered a Proposed Agreement to Burley that would allow Burley
to serve the Facility. The Proposed Agreement explicitly provides that it does not set precedent for
future encroachments by Burley into United’s service territory. United represents that Burley has
not responded to the Proposed Agreement.
Burley does not acknowledge United’s offer of a Proposed Agreement, rather Burley
contends that Idaho Code 61-333B provides a process in the event that the parties cannot agree on
an amended agreement, and Burley argues that:
Once this process is undertaken, the parties must then work to come to an
agreement on terms of “just compensation” for whatever business would be lost by
the party who loses business. Mechanisms are clearly in place here to handle such
a situation, as is the situation the parties now find themselves. The City of Burley
stands prepared to negotiate this just compensation to United Electric.
Id.
It is not clear to the Commission why Burley would now stand prepared to negotiate just
compensation to United when the record shows that Burley has not been prepared to negotiate with
United at all as to any modifications of the current Agreements, especially when the record shows
that United has offered a modification contemplating little or no compensation to resolve the very
issue in dispute.
ORDER RE: THE CITY OF BURLEY’S PETITION FOR DECLARATORY JUDGMENT
ORDER NO. 35964 7
What is clear to the Commission is that Burley has failed to establish that the requested
relief may be granted by the Commission, failed to request actual relief, and failed to present any
substantive argument or authority to support the arguments in the Petition. For those reasons,
Burley’s Petition is denied.
C. Attorney Fees
Burley requests an order for attorney fees and costs. Petition at 12. Burley does not present
any argument, authority, or legal support for its request. The Commission denies the request.
ORDER
IT IS HEREBY ORDERED that Burley’s Petition for Declaratory Order is denied.
IT IS FURTHER ORDERED that Burley’s request for Attorney Fees is denied.
IT IS FURTHER ORDERED that parties comply with Order No. 35375, issued April 21,
2022. Generally, all pleadings should be filed with the Commission electronically and will be
deemed timely filed when received by the Commission Secretary. See Rule 14.02. Service between
parties should continue to be accomplished electronically when possible. However, voluminous
discovery-related documents may be filed and served on CD-ROM or a USB flash drive.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this 23rd day of
October 2023.

__________________________________________
ERIC ANDERSON, PRESIDENT

__________________________________________
JOHN R. HAMMOND JR., COMMISSIONER

__________________________________________
EDWARD LODGE, COMMISSIONER
ATTEST:

___________________________________
Jan Noriyuki
Commission Secretary
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