20090417Comments.pdf

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Matthew A. Johnson, ISB #7789
Davis F. VanderVelde, ISB #7314
WHITE PETERSON GIGRA Y ROSSMAN NYE & NICHOLS, P.A.
5700 East Franklin Road, Suite 200
Nampa, Idaho 83687
Office: [phone]
Fax: [phone]
mjohnsonêwhitepeterson.com
Attorneys for Intervenor: Association of Canyon County Highway Districts
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 DISTRIBUTION LINE )INSTALLATIONS )
)
CASE NO. IPC-E-08-22
COMMENTS OF
INTERVENOR
ASSOCIATION OF CANYON
COUNTY HIGHWAY
DISTRICTS
The ASSOCIATION OF CANYON COUNTY HIGHWAY DISTRICTS ("ACCHD")
hereby submits the following comments in the above-captioned matter pursuant to the Idaho
Public Utilities Commission's ("IPUC") January 21,2009 Notice of Modifed Procedure, Notice
of Scheduling, Order No. 30719, and March 11, 2009 Notice of Extension of Comment Deadline,
Order No. 30746.
I. The IPUC does not have Jurisdiction to Authorize Proposed Section 10.
Idaho Code § 40-1310(1) provides that highway district commissioners have "exclusive
general supervision and jurisdiction over all highways and public rights-of-way within their
COMMENTS OF ACCHD - 1
highway system." These broad powers include the right to own and control land, to change
highway locations, to construct and repair highways, and establish standards and regulations.
Idaho Code § 40-1310. These supervisory powers include the authority to demand relocation
of utilities using the public right-of-way under Idaho Code §62-705.
Idaho Power is authorized to use public highways for its facilties only so long as it does
so "in such maner and at such points as not to incommode the public use of the road or
highway." Idaho Code § 62-705. Utility use of public lands is permissive and remains subject to
the authority of a city, county, or highway district. Local governing entities, such as highway
districts, hold such land in trust for the public and must protect the public use. Rich v. Idaho
Power Co., 81 Idaho 487, 346 P.2d 596 (1959). As such, highway districts have the exclusive
authority to determine that relocation of utilty facilities is necessary so as not to incommode
public use.! This includes the power to require relocation at the utility's cost.
The jurisdiction of the IPUC is limited to that expressly granted by the legislature.
Washington Water Power Co. v. Kootenai Environmental Allance, 99 Idaho 875, 591 P.2d 122
(1979). The IPUC is not granted authority to determine what mayor may not incommode the
public use as it pertains to municipal land and highways. It is the function and duty of a highway
district to determine whether the public use and safety is protected by such actions as road-
widening, sidewalk development, or installation of a turning lane. The Public Utilities Act "does
not contain any provision diminishing or transferring any of the powers and duties of the
municipality to control and maintain its streets and alleys." Vilage of Lapwai v. Allgier, 78
Idaho 124, 129,299 P.2d 475,478 (1956). Although Lapwai references municipal authority, the
reasoning is equally applicable to other governing bodies with authority over the rights-of-way,
1 For background on pennissive use and the public trst see Rich v. Idaho Power Co., 81 Idaho 487, 346 P.2d 596
(1959).
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such as highway districts. The Lapwai case found that since the authority over public lands
remains with the governing authority that IPUC consent is not required for a governing entity
requiring utilty relocation. The IPUC is not given authority to regulate utilty relocation or to
take on the role of determining when utility system location mayor may not impair the public
use.
The IPUC does not have authority to approve Idaho Power's proposed Rule H - Section
10. The proposed terms would place the IPUC in the position of having to determine what does
or does not constitute a general public benefit versus a third party benefit versus a shared benefit.
This determination it outside the expertise and role of the IPUC. Approving proposed Section 10
would cause the IPUC to act outside its jurisdiction and usurp the authority of highway districts
to govern the public use and safety of public highways.
The issues implicit within the proposed Section 10 are more appropriately a matter for
negotiation between Idaho Power and the highway districts. One example of such an approach
has already been accomplished in an agreement between Idaho Power and the Ada County
Highway District. See Comments of the Ada County Highway District, March 3, 2009, and
ACHD Resolution 330. The highway districts making up the ACCHD have also pursued
agreements with utilties to standardize how relocations are handled. These agreements are the
appropriate mechanism for addressing relocation costs and concerns.
ACCHD advises that the IPUC delete the proposed Section 10 and any other pars of the
proposed Rule H that attempt to regulate the relocation of utilities on highway district land.
Such relocation regulation is outside the jurisdiction of the IPUC.
II. Problems with the Definition and Treatment of Third Part Beneficiaries
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Proposed Section 10, in trying to apportion relocation costs, focuses on the idea of third-
party beneficiaries. The notion seems to be that some improvements are made for the general
public and other improvements are made only for the benefit of an identifiable "third party."
Section 10 does not clearly define what constitutes a third party beneficiary, providing only
examples: "private or public third paries such as real estate developers, local improvement
districts, or adjacent landowners." This definition is problematic and overly broad.
First, the definition allows a third party to be private or public. The inclusion of a
possibility of a public third pary beneficiary is troublesome. Public governing bodies overlap.
Highway districts border each other and may have joint agreements sharing in maintenance.
Projects in municipalities may impact and benefit highway district facilities For instance, a
municipal water project may lead to construction that benefits highway district facilities. The
water project is for the general public so the municipality would not be required to pay relocation
costs. However, the benefit to the highway district could be construed so that the highway
district is considered a "third party beneficiary" and now is required to pay relocation costs to
Idaho Power. Therefore ACCHD requests that the definition of "third pary beneficiary" be
amended to delete reference to public entities or political subdivisions.
Additionally, the definition of third pary beneficiaries includes local improvement
districts (LIDs). It is not clear whether this reference to local improvement districts is limited to
the current definition in Rule H or to local improvement districts in general? Regardless the
inclusion of local improvement districts as a third pary beneficiar conflicts with the authority
2 Rule H defines a local improvement district as being under Idaho Code §50-2503, which provides for the
formation of such a district for distribution line installation or alteration. Rule H - Section 9 covering Local
Improvement Districts is also concerned only with §50-2503 LIDs. Highway districts are granted the power to
create local improvement districts for a variety of other purposes as well. See Idaho Code §40-l322 and chapter 17
of title 50. Should Section 10 be approved by the IPUC, ACCHD requests that this portion be clarified so that local
improvement districts as third-part beneficiaries are limited only to the defmition included in Rule H.
COMMENTS OF ACCHD - 4
of the highway district to require relocation of utilities. The legislature has given highway
districts the authority to organize local improvement districts as a funding mechanism for certain
improvements. See Idaho Code § 40-1322. Such improvements do provide certain local
benefits, but the improvements also ultimately provide benefits to the general public as a whole.
For example, a new subdivision may receive certain benefits from a new tun-out lane,
but the general public benefits as well as the turn-out lane provides relief for the general flow of
traffic. Highway districts have been authorized to evaluate such benefits, provide for local
assessments or impact fees as a funding mechanism, and determine whether relocation is
necessary so as not to incommode the public use. A utility is not granted such authority and the
IPUC is not authorized to make such determinations.
Therefore ACCHD requests that local improvement districts be removed from the
definition of "third-party beneficiaries."
III: Constitutional Concerns
ACCHD also notes and re-emphasizes the concern of the Ada County Highway District
that the proposed Section 10 may be unconstitutionaL. See ACHD Comment NO.2 in Comments
of Ada County Highway District, March 3, 2009. For this reason, ACCHD also requests that the
IPUC delete language in the proposed Rule H Tariff attempting to regulate relocation of utilties
in the public right-of-way.
The Association of Canyon County Highway Districts appreciates the Commission's
consideration of these comments.
COMMENTS OF ACCHD - 5
Dated this 17th day of April, 2009.
COMMENTS OF ACCHD . 6
WHITE PETERSONBY'~~. Matthew A. Johnon ~
Attorneysfor the City of Nampa
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on the 17th day of April, 2009, a true and correct
copy of the above and foregoing instrument was served upon the following by the method
indicated below:
Lisa D. Nordstrom
Baron L. Kline ~U.S. Mail
Scott Sparks _ Overnight Mail
Gregory W. Said _ Hand Delivery
IDAHO POWER COMPANY Facsimile:-
P. O. Box 70 X lnordstromaYidahopower .com
Boise, ID 83707-0700 X bklineaYidahopower .com
X ssparksaYidahopower .com
X gsaidaYidahopower .com
Kristine A. Sasser
Deputy Attorney General ~U.S. Mail
IDAHO PUBLIC UTILITIES Overnight Mail
COMMISSION _ Hand Delivery
472 W. Washington (83702)Facsimile:-
P. O. Box 83720 X kris. sasseraYpuc.idaho. gov
Boise, ID 83720-0074
Michael C. Creamer
Given Pursley LLP ~U.S. Mail
601 W. BannOck St._ Overnight Mail
Boise, ID 83702 _ Hand Delivery
for BUILDING CONTRACTORS Facsimile:-
ASSOCIATION OF X mcc(fgivenspursley.com
SOUTHWESTERN IDAHO
Michael Kurtz, Esq.
Kurt J. Boehm, Esq.~U.S. Mail
Boehm, Kurz & Lowry _ Overnight Mail
36 E. Seventh Street, Suite 1510 _ Hand Delivery
Cincinnati, OH 45202 Facsimile:-
for The Kroger Co.X mkurtzaYBKLlawfirm.com
X kboehm(fBKLlawfirm.com
Kevin Higgins ~U.S. Mail
Energy Strategies, LLC _ Overnight Mail
Parkside Towers Hand Delivery
COMMENTS OF ACCHD - 7
215 S. State Street, Suite 200
Salt Lake City, UT 84111
for The Kroger Co.
Facsimile:
X khiggins(fenergystrat.com
~~
for WHITE PETERSON ~
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