HomeMy WebLinkAbout20040909Eagle Motion to Dismiss.pdfBruce M. Smith, ISB # 3425
Susan E. Buxton, ISB # 4041
MOORE SMITH BUXTON & TURCKE, CHARTERED
Attorneys at Law
225 North 9th Street, Suite 420
Boise, Idaho 83702
Telephone: (208) 331-1800
Facsimile: (208) 331-1202
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Attorney for Respondent, City of Eagle, Idaho
BEFORE THE IDAHO PUBLIC UTILIES COMMISSION
IDAHO POWER COMPANY,
Respondent.
MOTION TO DISMISS
Case No. IPC-O4-
Complainant
vs.
CITY OF EAGLE, IDAHO,
The City of Eagle, Idaho, by and through its attorneys of record, Moore Smith Buxton and
Turcke, Chartered, moves the Commission to dismiss the Complaint by Idaho Power Company,
for failure to exhaust its statutory remedies, under I.C. ~~67-5270 - 5279 and I.R.P. 84, and
because there are no conflicting orders as required under I.C. ~67-6528.
DATED at Boise, Idaho, this 9th day of September, 2004.
MOORE SMITH BUXTON &
CHARTERED L-J
Bruce M. Smith
Attorney for City of Eagle, Idaho
TURCKE
MOTION TO DISMISS -- Page
ORIGINAL
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I HAVE THIS 9th DAY OF SEPTEMBER, 2004, SERVED THE
FOREGOING RESPONSE TO THE MOTION TO DIMISS IN CASE NO. IPC-04-, BY
MAILING A COpy THEREOF, POSTAGE PREP AID, TO THE FOLLOWING:
Donald L. Howell, II
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83720-0074
S. Mail
Facsimile
V"'Hand Delivered
Overnight Mail
Monica B. Moen
Barton L. Kline
Idaho Power Company
O. Box 70
Boise, Idaho 83707-0070
S. Mail
Facsimile
Hand Delivered
Overnight Mail
B. Newal Squyres
Mary V. York
Holland & Hart, LLP
Suite 1400, U.S. Bank Plaza
101 S. Capitol Blvd.
O. Box 2527
Boise, ID 83701
S. Mail
Facsimile
Hand Delivered
Overnight Mail
( ~..
Bruce M. Smith
Attorney for City of Eagle, Idaho
MOTION TO DISMISS -- Page 2
Bruce M. Smith, ISB # 3425
Susan E. Buxton, ISB # 4041
MOORE SMITH BUXTON & TURCKE, CHARTERED
Attorneys at Law
225 North 9th Street, Suite 420
Boise, Idaho 83702
Telephone: (208) 331-1800
Facsimile: (208) 331-1202
Attorney for Respondent, City of Eagle, Idaho
BEFORE THE IDAHO PUBLIC UTILIES COMMISSION
IDAHO POWER COMPANY,
Respondent.
MEMORANDUM IN SUPPORT OF
MOTION TO DISMISS
Case No. IPC-O4-
Complainant
vs.
CITY OF EAGLE, IDAHO,
On February 11 , 2004, Idaho Power Company brought this Complaint before the Idaho
Public Utilities Commission seeking an order allowing Idaho Power to construct a 138kV line on
its choice of three route options with no additional cost to the City, allowing Idaho Power to
construct the line underground along three alternative route options, with the citizens of the City
bearing the burden of the of the incremental increase in cost for the underground installation.
Idaho Power had previously submitted an Application for a Conditional Use Permit to
Construct a 138k V Sub-Transmission Line and a Height Exception Request to Construct Utility
Poles in Excess of 35-feet, Case Number CU-09-02 (the "Application
).
After several public
hearings on the Application, the City Council of the City of Eagle unanimously voted to deny the
Application.
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS -- Page
ORIGINAL
The Idaho Public Utilities Commission ("PUC") has never issued an order with regard to
the installation of the subject lines.
ARGUMENT
Idaho Power has Failed to Exhaust its Remedies to Contest the City's Decision to
Deny Idaho Power s Conditional Use Permit Application No. CU-09-02.
Idaho Code ~50-328 grants cities the authority to regulate utility transmission systems.
Specifically:
All cities shall have power to permit, authorize, provide for and regulate the erection
maintenance and removal of utility transmission systems, and the laying and use of
underground conduits or subways for the same in, under, upon or over the streets, alleys
public parks and public places of said city; and in, under, over and upon any lands owned
or under the control of such city, whether they may be within or without the city limits.
It is under this statute that the City is able to issue conditional use permits regarding the
installation of power lines over and upon any lands owned or under the control of the City.
mentioned previously, Idaho Power submitted a CUP application to the City requesting
permission to site the 138k V line on the Eagle Bypass route.See Complaint ~ 8. After
numerous public hearings, in which the City Planning and Zoning Commission and the City
Council considered public testimony and a professional cost analysis, the City determined to
deny Idaho Power s application.
Once CU-09-02 was denied, Idaho Power had appeal options under either I.C. ~~ 67-
5270 through 67-5279 or pursuant to I.R.P. 84. Both sections provide for the judicial review
of decisions made by the City. However, Idaho Power refused to avail itself of either option.
Idaho Power s appeal options were clearly defined and Idaho Power chose not to exercise those
options. Idaho Power cannot now circumvent the statutory appeals process by filing this
Complaint with the PUC. Idaho Power is now seeking to use the PUC in an effort to avoid its
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS -- Page 2
responsibilities under the Idaho Code. The PUC is bound to comply with the City's local
ordinances. I.C. ~67-6528 ("The state of Idaho, and all its agencies, boards, departments
institutions, and local special purpose districts, shall comply with all plans and ordinances
adopted under this chapter unless otherwise provided by law.Idaho Power s Complaint
should be dismissed since it has failed to exhaust its statutory remedies and the relevant statutes
of limitations have now run.
Idaho Power s Complaint should be dismissed because there are no conflicting
orders as required by Idaho Code ~67-6528.
Even if the PUC determines that Idaho Power is following the proper process to achieve a
remedy from the City's decision, the PUC does not have the authority to hear this Complaint
pursuant to Idaho Code ~67-6528. Idaho Code ~67-6528 discusses the applicability of
municipal ordinances on state agencies.
If a public utility has been ordered or permitted by specific order, pursuant to title 61
Idaho Code, to do or refrain from doing an act by the public utilities commission, any
action or order of a governmental agency pursuant to titles 31 , 50 or 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.
This statute is inapplicable to the Complaint filed by Idaho Power. Even though the
City's order was issued pursuant to Idaho Code Title 67, the City's order does not conflict with
any existing PUC order. In order for the City's order to be null and void, the order must
conflict with a previous PUC order. To date, the PUC has not issued any order with regard to
the installation of lines through the City of Eagle.
Idaho Power is now seeking to create a conflict by asking the PUC to issue an order in
conflict with the order previously issued by the City. Even if the PUC issues an order regarding
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS -- Page 3
the installation of the subject lines, the PUC has not given the City an opportunity to appear
before the PUC with respect to the conflict prior to the issuance of the City's order. In order to
utilize this statute, Idaho Power should have 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. Consequently, Idaho Power s Complaint should be dismissed.
The City agrees that the PUC has authority over the installation of public utilities.
However, that authority does not extend so far as to allow Idaho Power to ignore the City's local
land use ordinances and procedural obligations set in place by the Idaho Legislature. Nor is
there any statutory authority allowing the PUC to assess a surcharge against the City, simply
because the City is enforcing its own rules and regulations. The Complaint filed by Idaho
Power must be dismissed.
CONCLUSION
Idaho Power has failed to exhaust its statutory appeal remedies by refusing to appeal the
City's order pursuant to the Administrative Procedure Act or Rule 84 of the Idaho Rules of Civil
Procedure. Additionally, the PUC does not have the jurisdiction to hear this Complaint
pursuant to I.C. ~67-6528.Consequently, this Complaint must be dismissed in its entirety.
DATED at Boise, Idaho, this 9th day of September, 2004.
MOORE
CHARTE
By:
BUXTON TURCKE
mlth
r City of Eagle, Idaho
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS -- Page 4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I HAVE THIS 9th DAY OF SEPTEMBER, 2004, SERVED THE
FOREGOING RESPONSE TO THE MOTION TO DIMISS IN CASE NO. IPC-04-, BY
MAILING A COpy THEREOF, POSTAGE PREP AID, TO THE FOLLOWING:
Donald L. Howell, II
Idaho Public Utilities Commission
472 West Washington Street
Boise, ID 83720-0074
S. Mail
Facsimile
7Hand Delivered
Overnight Mail
Monica B. Moen
Barton L. Kline
Idaho Power Company
O. Box 70
Boise, Idaho 83707-0070
S. Mail
Facsimile
Hand Delivered
Overnight Mail
B. Newal Squyres
Mary V. York
Holland & Hart, LLP
Suite 1400, U.S. Bank Plaza
101 S. Capitol Blvd.
O. Box 2527
Boise, ID 83701
S. Mail
Facsimile
Hand Delivered
Overnight Mail
e M. Smith
ey for City of Eagle, Idaho
MEMORANDUM IN SUPPORT OF MOTION TO DISMISS -- Page 5