20090304ACHD Comments.pdf

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Carol A. McKee, President
Sherry R. Huber, 1st Vice President
Rebecca W. Arnold, 2nd Vice President
John S. Franden, Commissioner
Sara M. Baker, Commissioner
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
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 DISTRIUTION LINE
INSTALLATIONS.
)
) CASE NO. IPC.E.08.22
)
) COMMENTS OF THE
) ADA COUNTY HIGHWAY
) DISTRICT
)
)
The ADA COUNTY HIGHWAY DISTRICT (hereinafter "ACHD") hereby submits the following comments
in the above-captioned matter pursuant to the Idaho Public Utilities Commssion's (hereinafer "IPUC")
Januar 12,2009 Notice of Modifed Procedure, Notice of Scheduling, Order No. 30719.
ACHD COMMENT NO.1
Proposed Section 10 of Rule H is Beyond the Jurisdictional Authori of/PUC
Pursuant to Idaho Code § 40-131O( 1) & (8), highway districts have exclusive general supervision and
jurisdiction over all highways and public rights-of-way within their highway system and full power to
establish design standards, establish use standards. This includes the unqualified abilty to demand that
electric utilty facilities within the public rights-of-way relocate per Idaho Code § 62-705. Proposed
Section 10 of Rule H is an ilegal usurpation of the highway districts' exclusive general supervision and
jurisdiction over all highways and public rights-of-way because it purports to regulate and control electric
utilty relocations by assigning financial liabilty for such relocations. Such is strictly in the power and
authority of the highway districts and should be left in the hands of the highway districts, working in a
coordinated effort with local government offcials and utilty companies to develop an approach that is
mutually beneficiaL. This local approach was taken by ACHD with great success in 1986 and resulted in
ACHD Resolution 330; upon which proposed Section 10 of Rule H appears to be loosely based.
The usurpation ofthe highway district's exclusive general supervision and jurisdiction over the highways
and public rights-of-way through proposed Section 10 of Rule H is clearly contrar to Village of Lapwai
v. Alligier, 78 Idaho 124,299 P.2d 475 (1956), in which the Idaho Supreme Court established clear lines
of authority over the public rights-of-way and the relocation of utilty facilities. within public rights-of-
way, stating: ". . . the (Public Utilities Law) does not contain any provision diminishing or
transferrng any of the powers and duties of the municipality to control and maintain its streets and
alleys. Moreover, the legislature, in providing for the use of streets and alleys by utilties, expressly
required the consent of the municipal authorities, and authorized the municipal authorities to impose
reasonable regulations upon such use. The legislature recognizing the duty it imposes upon the
municipality to control and maintain its streets and alleys, has preserved to the municipality the power to
deny their use to a utilty, or to impose reasonable regulations thereon, when necessar to the use of such
streets and alleys by the public in the usual manner. . . we conclude that the village was not required to
procure the consent of the (public utilits) commission as a condition to discontinuance of appellants'
service and their ouster from its streets and alleys." (Emphasis added) 1d. at 478.
ACHD respectfully requests that the IPUC strike from Idaho Power's proposed Rule H Tarff, anything
whatsoever attempting to regulate in any manner, the relocation of utilties in the public rights-of-way.
Ada County Highway District. 3775 Adams Street. Garden City, ID. 83714. PH 208 387-6100 · FX 345"7650. ww.achd.ada.id.us
ACHD COMMENT NO.2
Proposed Section 10 of Rule H Appears to be Unconstitutional:
In Rich v.idaho Power Company, 81 Idaho 487,346 P.2d 596 (1959), the Idaho Supreme Court struck
down as unconstitutional, Idaho Code § 40-120(27) which established upon the Idaho Board of Highway
Directors (predecessor to the Idaho Department of Transportation) and affirmtive obligation to pay for
utilty relocations associated with state highway projects. To the extent that proposed Section 10 of Rule
H imposes a duty upon the state to pay for utilty relocations associated with state highway projects, it
appears to violate Article 8 § 2 and possibly Article 8 § 17 of the Idaho Constitution. Applying Rich v.
1daho Power Company to proposed Section 10 of Rule H as it relates units of local government and local
improvement districts created by units of local government, proposed Section 10 of Rule H also appears
to violate Aricle 8 § 4 of the Idaho Constitution which operates in the same manner as Aricle 8 § 2 to
prohibit the loaning of a local government's credit to any individual, association, municipality, or
corporation.
ACHD respectfully requests that the IPUC strike from Idaho Power's proposed Rule H Tarff, anything
whatsoever attempting to regulate in any manner, the relocation of utilties in the public rights-of-way.
ACHD COMMENT NO.3
Third Party Beneficiary:
As currently written, the proposed Section 10 of Rule H includes an overly broad and potentially
troublesome definition of "third party beneficiar" which could be construed to include a highway district
whose roadways are being improved strictly as a result of another political subdivision's public project.
For example, road improvements occurrng in the course of a city sewer project. From the highway
district's perspective, road improvements benefit the general public as a whole, whether underten as a
highway district planned and coordinated project or by another entity improving its own facilities.
Therefore, ACHD requests that proposed Section 10 of Rule H be modified to expressly exclude public
entities and political subdivisions from the definition of "third pary beneficiar".
Local improvement districts created by a highway distrcts under Idaho Code § 40-1322 and organized
and operated under Title 50, Chapter 17 of the Idaho Code are limited to the "construction, reconstruction
and mantenance of highways and accompanying curbs, gutters, sidewalks, paved medians. . . ", all of
which are improvements that ultimately benefit the general public as a whole. Therefore, ACHD
requests that proposed Section 10 of Rule H be modified to expressly exclude Local Improvement
districts created by highway districts under Idaho Code § 40-1322 from the definition of "third pary
beneficiar" .
Than you in advance for your consideration of ACHD' s comments in the above-captioned matter.
Dated this 3.. day of March, 2009.
ADA COUNY HIGHWAY DISTRICT
CERTIFICATE OF MAILING
I hereby certify that on the3 ,.day of March, 2009, I caused to be mailed by U.S. Mail (postage prepaid)
a tre and correct copy of the foregoing COMMENTS OF THE ADA COUNTY HIGHWAY DISTRICT as
follows:
Commssion Secretary
Idaho Public Utilties Commission
P.O. Box 83720
Boise,ID 83720-0074
Lisa Nordstrom
Barton L. Kline
Idaho Power Company
P.O. Box 70
Boise, Idaho 83707-0070
Michael C. Creamer
Givens Pursley, LLP
60 i W. Banock St.
Boise, ID 83702
Scott Sparks
Gregory W. Said
Idaho Power Company
P.O. Box 70
Boise, Idaho 83707-0070
Micheal Kurz, Esq.
Kur J. Boehm, Esq.
Boehm, Kurtz & Lowr
36 E. Seventh Street, Suite 151O
Cincinnati, OH 45202
Matthew A. Johnson
Davis F. VanderVelde
White Peterson Gigray Rossman
Nye & Nichols, P.A.
5700 E. Franin Road, Suite 200
Nampa, ID 83687
Kevin Higgins
Energy Strategies, LLC
Parkside Towers
215 S. State Street, Suite 200
Salt Lake City, UT 84111
ADA COUNTY HIGHWAY DISTRICT