20040917Answer Opposing Eagles Motion to Dismiss.pdf

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DONALD L. HOWELL, II
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, IDAHO 83720-0074
[phone]
IDAHO BAR NO. 3366
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Street Address for Express Mail:
472 W. WASHINGTON
BOISE, IDAHO 83702-5983
Attorney for the Commission Staff
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
Complainant
ST AFF ANSWER OPPOSING
THE CITY OF EAGLE'
MOTION TO DISMISS
IDAHO POWER COMPANY
CASE NO. IPC-O4-
CITY OF EAGLE, IDAHO,
Respondent.
COMES NOW the Commission Staff pursuant to Rule 57 and files this Answer urging
the Commission to deny the City of Eagle s Motion to Dismiss. In its Motion to Dismiss, the City
presents three arguments why this matter should be dismissed. As explained in greater detail
below, Staff believes these arguments are misdirected and the City has misconstrued Idaho Code
9 67-6528.
ARGUMENT
1. The Commission may issue an Order that conflicts with City Ordinances. The City
maintains the Commission is bound to comply with the City s local ordinances. City Memo in
Support of Motion to Dismiss at 3. In particular, the City relies on the first sentence of Idaho
Code 9 67-6528. This sentence states in pertinent part that "Idaho, and all its agencies, boards
departments, institutions, and local special purpose districts, shall comply with all plans and
STAFF ANSWER OPPOSING THE CITY OF
EAGLE'S MOTION TO DISMISS
ordinances adopted under (the Land Use Planning Act unless otherwise provided by law
(Emphasis added). The City infers that the Commission cannot issue an Order in conflict with the
City s ordinances. As explained in greater detail below, this argument is without merit.
The very section that the City cites recognizes that there are exceptions "otherwise
provided by law.Idaho Code 9 67-6528. Indeed, this section recognizes two exceptions,t one
pertinent here. Although not a model of clarity, Section 67-6528 provides in pertinent part that
if a public utility has been ordered or permitted by specific order... to do... an
act by the public utilities commission, (then any action or order of a
governmental agency pursuant to titles 31 , 50, and 67, Idaho Code in conflict
with said public utilities commission order shall be insofar as it is in conflict
null and void if prior entering said order, the public utilities commission has
given the affected governmental agency an opportunity to appear before
consult with the public utilities commission with respect to such conflict.
Idaho Code 9 67-6528 (emphasis added).In other words, this statute recognizes that the
Commission may issue an Order in conflict with the City s ordinances. By its terms, so long as
the City has "appeared before or consulted with" the Commission then, the part of the City
action or order in conflict with the Commission s Order
, "
shall be.. .null and void....
Consequently, Section 67-6528 recognizes that the Commission may under certain circumstances
be exempted from complying with the broad statement in the first sentence.
Staff believes the more pertinent question is the inter-relationship between Idaho Code
9 50-328 and Idaho Code 9 67-6528. On the one hand, Section 50-3283 provide cities with the
authority to regulate the construction of transmission lines. On the other hand, Section 67-6528
provides that any city action or order, or a portion of said action or order, may become null and
void insofar as it is in conflict with a Commission Order. It is clear from both the legislative
history and the statutory construction that the Legislature intended to provide a limited exception
" for a public utility to seek relief from a local land use act or order.
1 The other exception not pertinent here provides that "plans and ordinances enacted pursuant to (the Land Use
Planning Act) shall not apply to transportation systems of statewide importance as may be determined by the Idaho
transportation board.Idaho Code ~ 67-6528 (emphasis added).
2 Title 31 pertains to Counties and County Law, Title 50 pertains to Municipal Corporations, and Title 67 contains the
Land Use Planning Act and the Administrative Procedures Act.
3 This section provides in pertinent part that all "cities shall have the power to permit, authorize, provide for and
regulate the erection, maintenance and removal of utility transmission systems.
. . .
ST AFF ANSWER OPPOSING THE CITY OF
EAGLE'S MOTION TO DISMISS
When interpreting statutes, courts and administrative agencIes begin with an
examination of the literal words of the statutes. A statute s language "is to be given its plain
obvious and rational meaning.State v. Burnight 132 Idaho 654, 659, 978 P.2d 214, 219 (1999).
Courts and agencies will resort to statutory construction if the statute in question is arguably in
conflict with another statute. Peasley Transfer Storage v. Smith 132 Idaho 732, 742, 979 P.
605, 615 (1999). When a Court or agency engages in statutory construction to construe the
legislative intent
, "
not only must the literal words of the statute ( s J be examined, but also the
context of those words, the public policy behind the statute(sJ, and (theirJ legislative history.
State v. Beard 135 Idaho 641 , 646, 22 P.3d 116, 121 (Ct. App. 2001). "Statutes are construed
under the assumption that the legislature was aware of all other statutes and legal precedence at
the time the statute was passed.Druffel v. State Dept. of Transportation 136 Idaho 853 , 856, 41
3d 739, 742 (2002).
Staff s characterization of Section 67-6528 is supported by the rules of statutory
construction and legislative history. Idaho Code 9 50-328 was recodified in 1967. Idaho Code
9 67-6528 was enacted in 1975 as part of the Land Use Planning Act. The Staff does not assert the
later enacted statute (67-6528) implicitly repeals or is inconsistent with the earlier statute, 50-328.
Tetzlafv. Brooks 130 Idaho 903, 950 P.2d 1242 (1997). In our view, Section 67-6528 operates as
a limited exception, thereby avoiding an implied repeal of Idaho Code 9 50-328. The repeal of an
earlier statute is disfavored in the law. Chapple v. Madison County Officials 132 Idaho 76, 967
2d 278 (1998).
When two statutes relate to the same subject matter (in pari materia), the most recent
expression of the legislature will control. Id.; Greenwald v. Idaho State Tax Comm '119 Idaho
501 , 506, 808 P.2d 420, 425 (Ct. App. 1991). Separate statutes dealing with the same subject
matter should be construed harmoniously, if at all possible, so as to further the legislative intent.
State v. Evans 134 Idaho 560, 6 P.3d 416 (Ct. App. 2000); State v. Resendiz-Fortanel 131 Idaho
488 , 489, 959 P .2d 845, 846 (Ct. App. 1998). In practical terms, the Staff recognizes that utilities
are subject to land use planning ordinances enacted by cities and counties. Idaho Code 9 67-6528
does not operate as a blanket exemption enabling utilities to disregard the mandates of local plans
and ordinances. For example, the Staff concedes the City may enact ordinances that require cable
electrical distribution, and telephone service systems be installed underground. Exhibit 135, City
Ord. 9 8-2A-6(A)(5). Or, that utility buildings must conform to city design standards applicable
STAFF ANSWER OPPOSING THE CITY OF
EAGLE'S MOTION TO DISMISS
all buildings. Id. 9 8-2A-6(A)(6). However, it is Staffs view that Section 67-6528 provide a
limited, remedial procedure in the event that a city decision conflicts with a Commission Order.
Finally, the minutes from the Senate Committee note that Section 67-6528 was
amended in committee to include the PUC remedy. The utilities sponsoring the amendment
explained to the committee "that where the utilities run a line in the county and cities should be left
to the PUC to make the final decision.Senate Gov t and Taxation Committee (March 3 , 1975)
(emphasis added). The committee agreed and the amendment was incorporated in the bill.
In the nearly 30 years that Idaho Code 9 67-6528 has been in effect, the present case is
the first instance where a utility has sought to utilize this limited remedy. As the text of the statute
indicates, only public utilities may avail themselves of the extraordinary remedy contained in this
section. It is clear that the Legislature intended to provide a limited exception for a public utility to
seek relief from a local land use act or order.
2. Idaho Power has not failed to exhaust all of its appeal options . The City next
maintains that Idaho Power failed to follow the statutory process for obtaining judicial review
once the City denied Idaho Power s Conditional Use Permit (CUP) No. CU-, Exhibit 5. The
City generally insists that because Idaho Power has "refused to avail itself' of its right to seek
judicial review under the Land Use Planning Act, it "cannot now circumvent the statutory appeals
process by filing this Complaint with the PUC." City Memo in Support of Motion to Dismiss at 2.
The City infers that Idaho Power should have sought judicial review of the City denial of the CUP
within 28 days "and the relevant statutes of limitations have now run.4 As explained in greater
detail below, Staff believes this argument is misdirected and ignores Idaho Code 9 67-6528.
Staff asserts the Idaho Land Use Planning Act provides two avenues for administrative
or judicial review. The first review process is the one alluded to by the City. Any person
aggrieved by a City s land use decision may seek judicial review within 28 days after all
administrative remedies have been exhausted as provided for in the Idaho Administrative
Procedures Act. Idaho Code 9 67-6521(d). Under the first process, any aggrieved party may seek
judicial review by filing a Petition in the District Court. Idaho Code 9 67-5272. However, as set
Idaho Code ~ 67-5273 provides that a petition for judicial review of a final agency action "must be filed within
twenty-eight (28) days of the agency action, except as provided by other provision of law." As Staff argues above
Idaho Code ~ 67-6528 provides an exception.
STAFF ANSWER OPPOSING THE CITY OF
EAGLE'S MOTION TO DISMISS
out below Idaho Code 9 67-6528 creates a second, limited alternative applicable only to public
utilities. Section 67-6528 provides that:
if a public utility has been ordered or permitted by specific order... to do... an
act by the public utilities commission, (thenJ any action or order of a
governmental agency pursuant to titles 31 , 50 and 67, Idaho Code in conflict
with said public utilities commission order. shall be insofar as it is in conflict
null and void if prior to entering said order, the public utilities commission has
given the affected governmental agency an opportunity to appear before or
consult with the public utilities commission with respect to such conflict.
Idaho Code 9 67-6528 (emphasis added). In this matter, the Commission might issue an Order in
conflict with the City s denial of Idaho Power s proposal to construct a transmission line along the
Bypass in City Case No. CU-02 (Exhibit 5 , p. 12). If there is such a conflict between the City
decision and the Commission s Order, that part of the decision then in conflict with the Order
shall be "null and void " so long as the Commission has given the City an opportunity "to appear
before or consult with" the Commission prior to the effective date of the Order.
As is the case with the Planning Act, persons aggrieved by final Orders of the
Commission must exhaust their administrative remedies by seeking reconsideration. Idaho Code
9 61-626. Subsequent judicial review is also available directly to the Supreme Court. Idaho
Const. Art. V, 9 9; Idaho Code 9 61-627. Consequently, both parties have a right to seek judicial
review of Commission action directly to the Supreme Court.
Idaho Power may use either remedial avenue. In this case Idaho Power brought its
action against the City on February 12, 2004. The City did not issue an order denying Idaho
Power s Application until April 27, 2004. Exhibit 5 , at p. 13. Staff believes that the utility timely
filed for relief under Idaho Code 9 67-6528. Thus, Idaho Power has not exhausted all remedies to
contest the City s decision and the City s Motion should be denied.
3. No Conflicting Order.Finally, the City of Eagle argues that this matter should
dismissed because "the City s Order does not conflict with any existing PUC Order." Motion
Dtsmiss at 3. In other words, the City maintains that because the Commission has not yet issued
its Order, there is no conflict and thus, the Commission has no jurisdiction. The City argues Idaho
Power should have first "sought an order from the PUC before going to the City to request a
conditional use permit. Its failure to do so prohibits Idaho Power from now seeking a conflicting
order from the PUC and prohibits the PUC from even considering this Complaint." Id. at 4.
STAFF ANSWER OPPOSING THE CITY OF
EAGLE'S MOTION TO DISMISS
The City s argument would put form over substance and would turn the Land Use
Planning Act on its head. Following the City s argument to its logical conclusion, the PUC would
become the land use permitting agency for public utilities. In the City s view, all utility
construction would require a Commission Order before applying to the City for a CUP. Such a
process is inconsistent with and not contemplated by the Planning Act. City permit conditions not
in conflict with a Commission Order would be mandatory for the utility. Moreover Idaho Code
61-526 permits utilities to extend their lines within any city or county where they have previously
commenced operations; no approval from the Commission is required.
In examining this case of first impression, the Commission convened a prehearing
conference to determine how best to process this matter. As indicated in Order No. 29465 at 2
the City agreed to a schedule so that a record could be prepared upon which the Commission
would then issue an Order. Idaho Code 9 67-6528 provides that before a city act or order may be
voided, the Commission must give "the affected governmental agency an opportunity to appear
before or consult with" the Commission with respect to such conflict. The City s argument is
non-sequitur as the City now, at the final hour, objects that the Commission has not yet issued an
Order when the reason for that is to allow the City, as well the other parties, to be heard and to
appear before it prior to issuing such Order. The City has fully participated in this case and has
appeared before" the Commission. Once the Commission closes this proceeding, it will issue an
Order based upon the record. IDAP A 31.01.01.283-284. Given the fact that the Commission has
built an extensive record in this matter, it is unreasonable to dismiss the case now.
PRAYER
As indicated above, the City of Eagle s Motion to Dismiss should be denied. Idaho
Power has not failed to exhaust its statutory remedies and the Commission clearly has jurisdiction
over this matter pursuant to Idaho Code 9 67-6528.
Respectfully submitted this 11~ day of September 2004.
Donald L. Ho ell, II
Deputy Attorney General
VldlN:IPCEO44 dh3
STAFF ANSWER OPPOSING THE CITY OF
EAGLE'S MOTION TO DISMISS
CERTIFICATE OF SERVICE
HEREBY CERTIFY THAT I HAVE THIS 17TH DAY OF SEPTEMBER 2004
SERVED THE FOREGOING STAFF ANSWER OPPOSING THE CITY OF EAGLE'
MOTION TO DISMISS IN CASE NO. IPC-04-, BY E-MAIL AND MAILING A
COpy THEREOF POSTAGE PREPAID TO THE FOLLOWING:
BARTON L KLINE
MONICA B MOEN
IDAHO POWER COMPANY
PO BOX 70
BOISE ID 83707-0070
E-mail: bkline~idahopower.com
mmoen~idahopower. com
SUSAN BUXTON
BRUCE SMITH
JOHN McFADDEN
MOORE SMITH BUXTON & TURCKE
225 N 9TH ST SUITE 420
BOISE ID 83702
E-mail: bms~msbtlaw.com
sebCillmsbtlaw. com
B. NEW AL SQUYRES
MARYV' YORK
HOLLAND & HART LLP
PO BOX 2527
BOISE ID 83701
E-mail: nsquyres~hollandhart.com
york~ho llandhart. com
CITY OF EAGLE
PO BOX 1520
EAGLE ID 83616
EAGLE RIVER LLC
C/O A. ENNIS DALE
485 E. RIVERSIDE DR.
EAGLE ill 83616
ClJ~
SECRETARY
CERTIFICATE OF SERVICE