20090911Brief on Reconsideration, Clarification.pdf

Scott D. Spears, ISB # 4180
Ada County Highway District
3775 Adams Street
Garden City, Idaho 83714
Offce: [phone]
Fax: [phone]
sspears (g achd.ada.id. us
REC ED
zn09 SEP II PH 4:0 I
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
)
)
) CASE NO. IPC.E.08.22
)
) ADACOUNTY
) HIGHWAY DISTRICT'S
) BRIEFON
) RECONSIDERATION
) AND CLARIFICATION
)
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.
The ADA COUNTY HIGHW A Y DISTRICT (hereinafter "ACHD") hereby submits the
following ADA COUNTY HIGHWAY DISTRICT'S BRIEF ON RECONSIDERATION AND
CLARIFICATION in the above-captioned matter pursuant to the Idaho Public Utilties
Commssion's (hereinafter "IPUC") Order No. 30883, issued August 19,2009, Idaho Code § 61-
626, and IPUC Rule 332.
I.
INTRODUCTION
On July 1, 2009, the IPUC issued Order No. 30853 in the above-captioned matter
granting Idaho Power's Application to modify Rule H. On July 22,2009, ACHD fied its
PETITION FOR RECONSIDERATION/CLARIFICATION BY ADA COUNTY HIGHWAY
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DISTRICT requesting reconsideration and clarification of the IPUC's approval of Rule H
Section 10 relating to utility relocations. On that date, the Association of Canyon County
Highway Districts and the City of Nampa also fied petitions for reconsideration of the IPUC's
approval of Rule H Section 10. Additionally, the Building Contractors Association fied a
petition for reconsideration of other portions of Rule H. On August 19, 2009, the IPUC issued
Order No. 30883 granting reconsideration and also directed Idaho Power to clarfy the definition
of "third pary beneficiary" and "local improvement district". As directed by the IPUC, Idaho
Power on August 28,2009, fied modifications to Rule H Section 10. Idaho Power's August 28,
2009 fiing also made modifications to Rule H Section 1 "Definitions" and, in paricular,
modified the definition of "Local Improvement District"and added definitions of "Public Road
Agency" and "Third-Pary Beneficiary", (collectively, these modifications to Rule H Section 1
are referred to below as "applicable portions of Rule H Section 1 ").
ACHD has considered IPUC Order No. 30853, IPUC Order No. 30883, and the modified
Rule H Section 10 and applicable portions of Rule H Section 1 and renews its objections as
stated in its PETITION FOR RECONSIDERATION/CLARIFICATION BY ADA COUNTY
HIGHWAY DISTRICT as well as its original comments submitted March 3, 2009. As wil be
demonstrated below, Rule H Section 10 and applicable portions of Rule H section 1, as modified
by Idaho Power, are unauthorized usurpations of the clear and exclusive jurisdiction of Idaho's
highway districts and public road agencies by the IPUc. To the extent that Rule H Section 10
and applicable portions of Rule H Section 1 are applicable to the state or any entity of local
government, including but not limited to public road agencies and local improvement districts, it
is a violation of the Idaho Constitution. Rule H Section i 0 and applicable portions of Rule H
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Section 1 are also unconstitutional and legally unauthorized abrogations or amendments of the
common law rule that utilities pay the cost of relocation of their facilties within the public
rights-of-way.
ACHD hereby requests that the IPUC issue an Order reversing its earlier decisions and
striking Rule H Section i 0 and applicable portions of Rule H Section 1 from Rule H.
II.
ARGUMENT
A. As Modifed by Idaho Power, Rule H Section 10 and Applicable Portions of Rule H
Section 1 are an Illegal Encroachment Into ACHD's Exclusive Jurisdiction
On August 28,2009, pursuant to Order No. 30883, Idaho Power fied a modified Rule H,
'fhich included changes to Rule H Section 10 and Rule H Section 1. As modified, Rule H
Section 10 and applicable portions of Rule H Section 1 are an ilegal encroachment into ACHD's
exclusive jurisdiction.
Pursuant to Idaho law, 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 and to establish use standards.
Idaho Code § 40-1310(1) & (8) provide as follows:
40-1310. POWERS AND DUTIES OF HIGHWAY DISTRICT
COMMISSIONERS.
(1) The commssioners of a highway district have exclusive general supervision
andjuridiction over all highways and public rights-of-way within their
highway system, with full power to construct, maintain, repair, acquire,
purchase and improve all highways within their highway system, whether
directly or by their own agents and employees or by contract. Except as otherwise
provided in this chapter in respect to the highways within their highway system, a
highway district shall have all of the powers and duties that would by law be
vested in the commissioners of the county and in the district directors of highways
if the highway district had not been organized. Where any highway within the
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limits of the highway district has been designated as a state highway, then the
board shall have exclusive supervision, jurisdiction and control over the
designation, location, maintenance, repair and reconstrction of it. The highway
district shall have power to manage and conduct the business and affairs of the
district; establish and post speed and other regulatory signs; make and execute all
necessary contracts; have an offce and employ and appoint agents, attorneys,
officers and employees as may be required, and prescribe their duties and fix their
compensation. Highway district commssioners and their agents and employees
have the right to enter upon any lands to make a survey, and may locate the
necessary works on the line of any highways on any land which may be deemed
best for the location.
(Emphasis added.)
(8) The highway district board of commssioners shall have the exclusive general
supervisory authori over all public highways, public streets and public rights-
of-way under their jurisdiction, with full power to establish design standards,
establish use standards, pass resolutions and establish regulations in accordance
with the provisions of title 49, Idaho Code, and control access to said public
highways, public streets and public rights-of-way. (Emphasis added.)
Pursuant to Idaho Code § 40-1312, this grant of power to the highway districts is to be liberally
construed and all necessary powers are to be implied.
40-1312. GRANT OF POWERS TO BE LIBERALLY CONSTRUED. The grant
of powers provided in this chapter to highway districts and to their offcers and
agents, shall be liberally construed, as a broad and general grant of powers, to
the end that the control and administration of the districts may be efficient. The
enumeration of certain powers that would be implied without enumeration shall
not be construed as a denial or exclusion of other implied powers necessary for
the free and effcient exercise of powers expressly granted. (Emphasis added.)
In Worley Highway District v. Kootenai County, 104 Idaho 833, 663 P.2d 1135 (Idaho
App.,1983), the Idaho Court of Appeals considered powers and authorities granted to highway
districts under the predecessors to Idaho Code § 40-1310 and Idaho Code § 40-1312 and stated
as follows:
It is clear to us that (Idaho Code § 40-1310) together with (Idaho Code § 40-1312)
gives highway commissioners broad powers to administer highways within their
districts. Their domain includes not only the "exclusive general supervision and
jurisdiction over all highways," but also "full power to construct, maintain, repair,
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and improve all highways within the district." This language makes the
legislature's intent clear that in the area of construction, maintenance, and day-
to-day operation of highways, the prerogative of the highway commissioners is
exclusive. (Emphasis added.) Worley Highway District v. Kootenai County, 104
Idaho at 835.
Additionally, Idaho Code § 40-1406 provides in pertinent par:
40-l406. POWERS AND DUTIES OF HIGHWAY COMMISSIONERS -- ONE
HIGHWAY DISTRICT IN COUNTY -- HIGHW A Y POWERS OF CITIES IN
COUNTY ABOLISHED -- LAWS IN CONFLICT SUPERSEDED. The highway
commissioners of a county-wide highway district shall exercise all of the powers
and duties provided in chapter 13 of this title, and are empowered to make
highway ad valorem tax levies as provided by chapter 8, of this title.
* * *
Wherever any provisions of the existing laws of the state of Idaho are in conflict
with the provisions of this chapter, the provisions of this chapter shall control
and supersede all such laws. (Emphasis added.)
Therefore, to the extent that any law of the state of Idaho is in conflct with the highway
districts' exclusive jurisdictional authority over the public rights-of-way as granted in Code §§
40-13100),40-1310(8),40-1312, and 40-l406, such laws are superseded by these provisions of
Idaho law.
In Vilage of Lapwai v. Allgier, 78 Idaho l24, 299 P.2d 475 (956), the Idaho Supreme
Court said, "(i)n the exercise of its powers and duties with respect to its streets and alleys, the
municipality (highway district) acts as agent of the state. In discharging a mandatory duty
imposed by the state, the municipality performs a governmental function (cites omitted) within
the police power conferred by the state." Vilage of Lapwai v. Allgier, 78 Idaho at 128.
The highway district's exclusive control and jurisdiction over the public rights-of-way
includes the unqualified ability to demand that electric utility facilties within the public rights-
of-way relocate per Idaho Code § 62-705. Pursuant to Idaho Code § 62-705, utility use of public
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lands is permissive and remains subject to the authority of a city, county or highway district. It is
noteworthy that Idaho Code § 62-705 does not provide express or implied authority for utilties
to charge for relocations. Local governing entities, such as highway districts and public road
agencies, hold such land in trust for the public and must protect the public use. State v. Idaho
Power Company, 81 Idaho 487,346 P.2d 596 (1959). Highway districts have the exclusive
authority to determne whether and when relocation of utility facilities within the public right-of-
way is necessary so as to not incommode the public use. In State v. Idaho Power Company, the
Idaho Supreme Court stated:
The permssive use of public highways, which the legislature by i.e. §§ 62-701
and 62-705 accords to utilities, is in recognition of the time honored rule existing
in this state, that streets and highways belong to the public and are held by the
governmental bodies and political subdivisions of the state in trust for the use by
the public, and that only a permissive right to use, and no permanent property
right can be gained by those using them. . . . This is but a recognition of the
fundamental proposition that (Idaho Power's and Mountain States Telephone's)
permissive use of the public thoroughfares is subordinate to the paramount use
thereofby the public. (Emphasis added.) 81 Idaho at 498,515.
See also, Mountain States Telephone and Telegraph Co. v. Boise Redevelopment Agency, 101
Idaho 30, 32, 607 P.2d 1084 (1980).
Under the common law rule, "utilities bear the expense of relocating their facilties in
public rights of way when necessary to make way for proper governmental use of the streets."
Mountain States Telephone and Telegraph Co., 101 Idaho at 32. As noted by the Idaho
Supreme Court in State v. Idaho Power Company, "(1)ong before the adoption of our
Constitution, the people adopted the common law as the rule of decision in all cases not
otherwise provided by law. . . . Under the common law, a utility, placing its facilities along
streets and highways, gains no property right and upon demand must move its facilities at its
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expense." 81 Idaho at 501. The highway district's exclusive authority and jurisdiction over the
public right-of-way necessarly includes the exclusive power to determine who pays for the
utility relocation. This is consistent with, and supported by Idaho Code §40-1312 which, as
noted above, is an affrmative statement by the Idaho legislature that the power to the highway
districts is to be liberally construed with all necessary powers to be implied.
Acting in its role as agent of the state per Vilage of Lapwai v. Allgier, and performing its
governmental function with police power conferred by the state, ACHD exercised its exclusive
jurisdiction over utility relocations (including financial liabilty for utilty relocations) with the
adoption of Resolution 330 in September 1986 (a copy of which is attached as Exhibit "A" to the
Affdavit of Susan Slaughter which is attached hereto as Attachment "l"). Resolution 330
reflects the work of representatives of ACHD, the Boise City Deparment of Public Works and
various utilty organizations and establishes guidelines for utilty and sewer relocations within
the public rights-of-way under the jurisdiction of ACHD. Resolution 330 addresses utilty and \
sewer relocations in a comprehensive fashion including assignment of financial responsibility,
and establishment of operational procedures, in three different scenarios: 1) utilty and sewer
relocations are required because improvements in the public right-of-way are sponsored or
funded by ACHD; 2) utility and sewer relocations are required because improvements in the
public right-of-way are parially funded by ACHD and parially funded by another party; and 3)
utilty and sewer relocations are required because improvements in the public right-of-way do
not involve the paricipation or funding of ACHD.
Accordingly, ACHD requests that the IPUC issue an Order reversing its earlier decisions
and striking Rule H Section 10 and applicable portions of Rule H Section 1 fromRule H.
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B. As Modified by Idaho Power, Rule H Section 10 and Applicable Portions of Rule H
Section 1 are Beyond the Jurisdiction of the IPUC.
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 (1979). In
Alpert v. Boise Water Corporation, 118 Idaho 136, 795 P.2d 298 (1990), the Idaho Supreme
Court cited Washington Water Power Co. v. Kootenai Environmental Allance and other Idaho
precedent reaching back to 1963 stating:
The Idaho Public Utilities Commssion exercises limited jurisdiction and has no
authority other than that expressly granted to it by the legislature. (cite to
Washington Water Power Co.). The Idaho Public Utilities Commssion has no
authority other than that given to it by the legislature. It exercises a limited
jurisdiction and nothing is presumed in favor of its jurisdiction. United States v.
Utah Power & Light Co., 98 Idaho 665,570 P.2d 1353 (1977); Lemhi Tel. Co. v.
Mountain States Tel. & Tel. Co., 98 Idaho 692 Idaho 692, 571 P.2d 753 (1977);
Arrow Transp. Co. v. Idaho Public Utils. Comm'n., 85 Idaho 307, 379 P.2d 422
(1962). As a general rule, administrative authorities are tribunals of limited
jurisdiction and their jurisdiction is dependent entirely upon the statutes reposing
power in them and they cannot confer it upon themselves, although may
determine whether they have it. If the provisions of the statutes are not met and
compliance it not had with the statutes, no jurisdiction exists. (Emphasis added.)
Alpert v. Boise Water Corporation, 118 Idaho at 140
Additionally, in Utah Power & Light Co. v. Idaho Public Utilties Commission, 107
Idaho 47,685 P.2d 276 (l984) the Idaho Supreme Court said, "(t)he Idaho Public Utilities
Commssion has no authority other than that given to it by the legislature. It exercises a limited
jurisdiction and nothing is presumed in favor of its jurisdiction." Utah Power & Light Co. v.
Idaho Public Utilties Commission, 107 Idaho at 52.
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The IPUC is not granted authority to determine what mayor may not incommode the
public use as it pertains to public rights-of-way. In Vilage of Lapwai v. Allgier, 78 Idaho 124,
299 P.2d 475 (1956), 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
transferring 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 utilities, 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 necessary 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 utilities) commission as a condition to
discontinuance of appellants' service and their ouster from its streets and alleys."
(Emphasis added) Vilage of Lapwai v. Allgier, 299 P.2d at 478.
Rule H Section 10 and applicable portions of Rule H Section 1 are beyond the
jurisdictional authority of the IPUC because they seek to affrmatively regulate the state's
highway districts, public road agencies, entities of government, third paries, and developers and
impose upon them the duty to pay for mandatory utilty relocations in an unreasonable, one size
fits all approach. The state's highway districts, public road agencies, entities of government,
third paries and developers are not "public utilities" as defined in Idaho Code § 61-129. Idaho
Code § 61-101 provides, "(t)his act shall be known as "The Public Utilties Law" and shall apply
to the public utilities and public services herein described and the commssion herein referred
to."
In Order No. 30853 at page 13, the IPUC asserts jurisdiction via Idaho Code §§ 61-502
and 61-503. It is erroneous for the IPUC to find that these provisions ofthe Idaho Code, which
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relate to rates and charges for services, products or commodities, provide the IPUC the
jurisdiction and authority it has exercised in this matter. Mandatory relocation of utility facilities
from the public rights-of-way is not a service, product or commodity. It is only by an
unreasonable and irrational stretch of logic that the IPUC characterizes a mandatory relocation of
utility facilities located in the public right-of-way permissively and subordinately to the public,
to be "services". Certainly, per Washington Water Power Co. v. Kootenai Environmental
Allance, Idaho Code §§ 61-502 and 61-503 authorize the IPUC to determine whether utility
costs associated with mandatory relocations may be included in a utilty's rate base, but this is
the limit of the IPUC's jurisdiction and authority in this matter. Idaho Code §§ 61-502 and 61-
503 in no way, express or implied, provide the IPUC with the jurisdiction or authority to
affrmatively intervene in the exclusive jurisdiction of the state's highway districts and public
road agencies and thereby impose upon highway districts, public road agencies, entities of
government, third paries, and developers the duty to pay for such relocations.
The IPUC's jurisdiction and authority to determne whether utility charges, services or
practices are unjust, unreasonable, discriminatory or preferential does not expressly or impliedly
provide the IPUC with the jurisdiction or authority to impose upon public road agencies, entities
of government, third paries, and developers the duty to pay for such relocations and thereby
affirmatively intervene in the exclusive jurisdiction of the state's highway districts.
Moreover, the IPUC's jurisdiction and authority to determine whether utility charges,
services or practices are unjust, unreasonable, discriminatory or preferential does not expressly
or impliedly provide the IPUC with the jurisdiction or authority to dictate the operation of public
road agencies and thereby affrmatively intervene in the exclusive jurisdiction of the state's
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highway districts. Rule H Section 10 and applicable portions of Rule H Section 1 dictate the
operation of public road agencies in at least two ways. First, they effectively dictate the
substance of any guidelines that public road agencies might develop for the allocation of utility
relocation costs. Second, they wil arificially and inappropriately inject the allocation of utilty
relocation costs into any development agreement between highway districts and third paries.
It is noteworthy that Idaho Code § 62-705 does not provide express or implied authority
for utilities to charge for relocations and no such authority is granted to the IPUC in Idaho Code
§ 62-705. That the people have reserved the common law right to require the utilties to relocate
facilities permissively located within the public right-of-way cannot mean to give utilties or the
IPUC the authority to decide who pays for the relocation. Clearly, with the adoption of Section
10 Rule H, the IPUC has overstepped its jurisdictional bounds.
Rule H Section 10 and applicable portions of Rule H Section 1 are an unprecedented
ilegal usurpation of the highway districts' exclusive general supervision and jurisdiction over all
highways and public rights-of-way. Through the adoption of Rule H Section 10 and applicable
portions of Rule H Section 1, the IPUC wil effectively dictate the policies and procedures of
highway districts and local road agencies regarding electric utilty relocations, impact the
operation of highway districts and local road agencies in their negotiations and relations with
third paries and developers concerning road improvement projects, and 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 utility companies to
develop an approach that is mutually beneficial.
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Additionally, with the following provision, Rule H Section 10 attempts to regulate how
quickly a public utility is required to make the relocation: "All payments from Third Pary
Beneficiaries to the Company under this Section shall be paid in advance of the Company's
Relocation work, based on the Company's Word Order Cost." Thus, the IPUC is takng away
from the highway districts and public road agencies the exclusive right, authority and jurisdiction
to require the public utilty to relocate its facilities on the highway district's schedule. ACHD
has experienced problems in the past getting public utilities to relocate utilty lines in a timely
manner. See, Affidavit of Dorrell Hansen, attached hereto as Attachment "2". Rule H Section 10
explicitly takes ACHD's exclusive authority to control the timing of the relocation of utilties
and transfers it to the IPUC and the utilities. Rule H Section 10 wil jeopardize the timing and
schedule of road project development and construction and the public's use of the right-of-way.
See, Affidavit of Dorrell Hansen, attached hereto as Attachment "2".
ACHD is unaware of any similar move by the IPUC since its formation nearly 100 years
ago. ACHD questions this aggressive and unprecedented move now, at this time.
ACHD requests that the IPUC overturn its clearly erroneous finding that "Section 10
does not explicitly or implicitly usurp the public road agencies' authority to manage and control
their rights-of-way" (Order No. 30853, page 12) and that it reverse its earlier decision and strike
Rule H Section 10 and the applicable portions of Rule H Section 1 from Rule H.
In Order No. 30853 at page 9, the IPUC notes Idaho Power's acknowledgement that
public road agencies such as ACHD have "sole and complete (exclusive) jurisdiction to
determine when relocation is required to avoid incommoding the public" and that "in regard to
the costs of utilty facility relocations to determne utility rates and charges, the Commssion has
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exclusive jurisdiction", but that somehow, with regard to utilty relocations, the public road
agencies and the IPUC wil "exercise jurisdiction concurrently". Unfortunately, it appears in
Order No. 30853 at page 13 that the IPUC has accepted Idaho Power's unfounded and
incongruous position that two entities, each with exclusive jurisdiction, can exercise jurisdiction
concurrentl y.
As previously stated, acting in its role as agent of the state per Vilage of Lapwai v.
Allgier, and performng its governmental function with police power conferred by the state,
ACHD exercised its exclusive jurisdiction over utilty relocations (including financial liabilty
for utilty relocations) with the adoption of ACHD Resolution 330 in September 1986. Rule H
Section 10 usurps ACHD Resolution 330 and ACHD's exclusive jurisdiction as outlned above.
Additionally, Rule H Section 10 is in conflct with ACHD Resolution 330. As stated by the
Idaho Supreme Court in State v. Poynter, 70 Idaho 438,220 P.2d 386 (1950), "(t)he state and a
municipal corporation may have concurrent jurisdiction over the same subject matter and in
which event the municipality may make regulations on the subject notwithstanding the exercise
of state regulations thereon, provided the regulations or law are not in conflict." (Emphasis
added.) State v. Poynter, 70 Idaho at 441. Additionally, it must be noted that in modifying
Rule H Section 10 to provide that Rule H Section 10 wil not apply if a public road agency has
adopted "legally binding guidelines" with "substantially similar" terms, Idaho Power has
highlighted the point that there can be no concurrent jurisdiction where regulations of a local
entity and a state entity are in conflct. Thus, pursuant to State v. Poynter concurrent jurisdiction
as proposed by Idaho Power and accepted by the IPUC cannot exist with regard to utility
relocations from the public rights-of-way.
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In adopting Rule H Section 10 and applicable portions of Rule H Section l, the IPUC
erroneously assumes that the public (rate payers) does not benefit from road projects funded by
entities of government including but not limited to local improvement districts, as well as those
funded by third paries, and developers; in fact, the opposite is quite true. The public (rate
payers) benefits tremendously from road projects funded by entities of government including but
not limited to local improvement districts, as well as those funded by third paries, and
developers; this is evidenced by the fact that upon completion, such road projects are commonly
accepted for the public by highway districts for ownership and maintenance as public right-of-
way per Idaho Code § 40-1310. Additionally, 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.
Improvements, whether funded by an entity of government, including but not limited to
local improvement districts, as well as those funded by third paries or developers, do provide
certain local benefits, but the improvements also ultimately provide benefits to the general
public. For example, a new subdivision may receive certain benefits from a new turn-out lane,
but the general public benefits as well as the turn-out lane provides relief for the general flow of
traffc. Highway districts and public road agencies have been exclusively authorized to evaluate
such benefits, determne funding responsibilties and establish funding mechanisms where
appropriate, and determne whether relocation of utility facilities is necessary so as to not
incommode the public. It is beyond the jurisdiction of the IPUC to determine what does or does
not constitute a general public benefit versus a third pary benefit versus a shared benefit.
Moreover, such a determination is well beyond the expertise and role of the IPUe. The IPUC
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does not have the jurisdiction to act as arbiter in any dispute over public benefit, third pary
benefit, or shared benefit and to do so under Rule H Section 10 and applicable portions of Rule
H Section 1 usurps the exclusive authority and jurisdiction of highway districts and public road
agencies to govern the public use and safety of the public rights-of-way.
Moreover, the Idaho Supreme Court has clearly stated that the permissive use of the
public right-of-way is a benefit which utilties and their rate payers enjoy and they and their rate
payers should bear the burden of relocation from the public right-of-way when requested:
A further answer to the argument that relocation costs should be paid by highway
users is, that (Idaho Power's and Mountain States Telephone's) permssive use of
the highways is for the benefit of the utilities and their subscribers and relocation
costs should therefore be paid by them as an incident of such benefit; . . . State v.
Idaho Power Company, 81 Idaho at 505.
Neither Idaho Power nor the IPUC can simply ignore the compellng policy issues expounded by
the Idaho Supreme Court in the foregoing quotation from State v. Idaho Power Company.
ACHD requests that the IPUC overturn its clearly erroneous finding that Idaho Code §§
61-502 and 61-503 expressly or impliedly provide the IPUC with the concurrent jurisdiction or
authority to affirmatively intervene in the exclusive jurisdiction of the state's highway districts
and public road agencies.
ACHD also questions the wisdom of singling out electric utilities for treatment. In Order
No. 30853, at page 13, the IPUC praises the concept of maintaining "consistency between the
agencies", yet, with the adoption of Section 10 of Rule H, the IPUC has singled out electric
utilities. This creates a lack of consistency between and among the public utilties in Idaho.
Accordingly, ACHD requests that the IPUC issue an Order reversing its earlier decisions
and striking Rule H Section 10 and applicable portions of Rule H Section 1.
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c. As Modifed by Idaho Power, Rule H Section 10 and Applicable Portions of Rule H
Section 1 are Unconstitutional
In State v. Idaho Power Company, the Idaho Supreme Court struck down as
unconstitutional, Idaho Code § 40-120(27) which imposed upon the Idaho Board of Highway
Directors (predecessor to the Idaho Deparment of Transportation) an affrmative obligation to
pay for utility relocations associated with state highway projects. The Idaho Supreme Court
ruled that Idaho Code § 40-l20(27) violated both Aricle 8 § 2 and Article 7 § 17 of the Idaho
Constitution. State v. Idaho Power Company, 81 Idaho at 515.
Aricle 8 § 2 of the Idaho Constitution prohibits the state from giving, loaning, or aiding
in any manner the credit of the state to any individual, association, municipality or corporation.
Aricle 7 § 17 of the Idaho Constitution mandates that proceeds from any tax on gasoline shall be
used exclusively for the construction, repair, maintenance and traffic supervision of the public
highways of Idaho and that no par of such funds shall by transfer of funds or otherwise, be
diverted to any other purposes whatsoever. Aricle 8 § 4 of the Idaho Constitution is the local
government analogue to Aricle 8 § 2 and prohibits counties, cities, and other political
subdivisions from loaning pledging the credit or faith, directly or indirectly, in any manner, to or
in aid of any individual, association, municipality or corporation.
In Order No. 30853, at page 13, and again in Order No. 30883, at page 2 the IPUC makes
the clearly erroneous findings: "Section 10 in no way grants Idaho Power or this Commission
authority to impose such costs on a public road agency". ACHD directs the IPUC to Subsection
d of Section 10 which states: ". . . where the Company has a private right of occupancy for its
power line facilities within the public road right-of-way, such as an easement or other private
right, the costs of the relocation is borne by the Public Road Agency." Applying State v. Idaho
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Power Company, it is clear that Subsection d of Section 10 clearly imposes a duty upon the state
and public road agencies such as cities, counties or highway districts to pay for utility relocations
associated with road projects, and therefore violates Aricle 8 § 2 and Aricle 7 § 17 of the Idaho
Constitution (state) Article 8 § 4 of the Idaho Constitution (highway districts and other public
road agencies) because it establishes a requirement upon the state and such entities of local
government to pay for utility relocations.
The holdings of State v. Idaho Power Company apply to other entities of local
government by virtue of Aricle 8 § 4 of the Idaho Constitution, including but not limited to,
local improvement districts. Inclusion of any entity of local government, including but not
limited to local improvement districts, in the definition of third pary beneficiary as provided in
the new Rule H Section 1, is a clear violation of Aricle 8 § 4 of the Idaho Constitution because it
establishes a requirement upon such entities of local government to pay for utility relocations.
Idaho Power's revisions to Rule H Section LO and Rule H Section 1, with the
modification of "Local Improvement District" and addition of the definitions of "Public Road
Agency" and "Third-Pary Beneficiary", served only to rearange these terms as expressed in the
previous iteration of Rule H Section 10 as adopted by the IPUC in Order No. 30853. As
originally adopted, Rule H Section 10 essentially defined the terms "Public Road Agency" and
"Third-Pary Beneficiares", with use of text and parentheses. The previous version of Rule H
Section 10 explicitly included a reference to "local improvement districts" in attempting to
define the term "Third Pary Beneficiaries". The previous version of Rule H Section 10
explicitly set out the definition of "Local Improvement District" as including "any local
improvement district created under the statutory procedures set forth in Idaho Code Title 50,
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Chapter 17." Thus, as revised, Rule H Section 10 and the applicable portions of Rule H Section
1 continues to include and be applicable to local improvement districts which may be created by
any entity of local government such as a city, highway district or public road agency and
therefore continues to violate the Idaho Constitution.
IPUC has erroneously found that Rule H Section 10 does not violate the Idaho
Constitution. (Order No. 30853, page 13 and Order No. 30883, at page 2). ACHD requests that
the IPUC issue an Order reversing its earlier decisions and striking Rule H Section 10 and
applicable portions of Rule H Section 1.
D. As Modifed by Idaho Power, Rule H Section 10 and Applicable Portions of Rule H
Section 1 is an ilegal attempt to abrogate or amend the Common Law Rule
In State v. Idaho Power Company, the Idaho Supreme Court discussed the common law
rule as follows: "(1)ong before the adoption of our Constitution, the people adopted the common
law as the rule of decision in all cases not otherwise provided by law. . . . Under the common
law, a utility, placing its facilities along streets and highways, gains no propert right and
upon demand must move its facilities at its expense." (Emphasis added) 8l Idaho at 501. As
noted above, in State v. Idaho Power Company, 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 Deparment of Transportation) an affrmative obligation to
pay for utilty relocations associated with state highway projects. In addition to finding Idaho
Code § 40-l20(27) to be a violation of Aricle 8 § 2 and Aricle 7 § l7 of the Idaho Constitution
as discussed in the preceding section II C, the Idaho Supreme Court also indicated that Idaho
Code § 40-120(27) was an unconstitutional abrogation of the common law rule.
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We are aware of the basic rule that, inasmuch as our Constitution is a limitation
and not a grant of power, the legislature has plenary power in all matters except
those prohibited by the Constitution. (cite omitted) Expressions of this rule, as it
relates to the power of the legislature to change the common law obligation of
utilties to pay the cost of relocation of their facilities, recognize that the
legislature is powerless in the premises if there is a constitutional limitation upon
the exercise of such power. And (Idaho Power's and Mountain States
Telephone's) assertion that the legislature may abrogate the common law rule
must be so circumscribed. The constitutional limitation upon the exercise of such
legislative power is expressed (cites omitted) as follows: 'The common-law
obligation of a utility to relocate its own structures * * * in connection with a
grade crossing * * * program continues until the Constitution and statute
expressly provide otherwise.' (Emphasis added.) (Emphasis supplied.) State v.
Idaho Power Company, 8l Idaho at 503-504.
If Idaho Code § 40-120(27), a statute attempting to abrogate or modify the common law
rule was contrary to the Idaho Constitution's limitation on power, then without question, Section
10, Rule H, an administrative rule ofthe IPUC is certainly contrary to the Idaho Constitution's
limitation on power. Clearly, Rule H Section 10 and the applicable portions of Rule H Section 1
are violations of the Idaho Constitution's limitation on power to abrogate or amend the common
law rule that utilities pay the cost of relocation of their facilities from the public rights-of-way.
Supporting the conclusion that the common law rule applies any time a utility is
requested to relocate its facilties from the public rights-of-way, is Mountain States Telephone
and Telegraph Co. v. Boise Redevelopment Agency, 101 Idaho 30, 607 P.2d 1084 (1980), in
which the Idaho Supreme Court found that the common law rule prohibited the utilties from
obtaining reimbursement of their relocation costs from an urban renewal agency. Citing to State
v. Idaho Power Company, the Idaho Supreme Court said:
The rule at common law that utilities must relocate at their own expense is not an
absolute, however, but is subject to legislative provision to the contrary, and also
subject to any constitutional prohibition or requirement. (cite to State v. Idaho
Power Company) We must thus decide whether the legislature has provided that
the B.R.A must pay the costs of relocation. While i.e. §§ 50-2007(h) and 50-
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2018(j)(3) permt payment of such costs, they do not appear to be mandatory. In
the absence of clear legislative direction we decline to abolish the common law
rule and establish a rule requiring relocation costs to be paid to permissive
users such as utilities. (Emphasis added.) Mountain States Telephone and
Telegraph Co. v. Boise Redevelopment Agency, 101 Idaho at 34-35.
It cannot be argued that there is a difference between urban renewal agencies and local
improvement districts such that would justify a different treatment under Mountain States
Telephone and Telegraph Co. v. Boise Redevelopment Agency for local improvement districts.
Indeed, both urban renewal agencies and local improvement districts are created by entities of
local government and each are granted the power to install, construct, and reconstruct streets and
similar public facilties and each have the power to acquire property by purchase and
condemnation.
As demonstrated above in Section II. B., Idaho Code §§ 61-502, 61-503, and 62-705 in
no way, express or implied, provide the IPUC with the jurisdiction or authority to affirmatively
intervene in the exclusive jurisdiction of the state's highway districts and thereby impose upon
public road agencies, entities of government, third paries, and developers the duty to pay for
such relocations within the public rights-of-way. Moreover, Idaho Code §§ 61-502,61-503, and
62-705 are completely absent of any legislative direction or intent that utilities should be entitled
to recover their costs of relocation within the public rights-of-way. In the absence of "clear
legislative direction" no such intent can be presumed or authority assumed by the IPUe.
ACHD requests that the IPUC strike Rule H Section 10 and applicable portions of Rule H
Section 1 in light of the clear constitutional limitation on power to abrogate the common law rule
as expressed by the Idaho Supreme Court in State v. Idaho Power Company and in light of a
complete lack of legislative direction or authority regarding reimbursement of utility relocation
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costs in Idaho Code §§ 61-502, 61-503, and 62-705 per Mountain States Telephone and
Telegraph Co. v. Boise Redevelopment Agency.
Rule H Section 10 and applicable portions of Rule H Section 1 continue to include an
overly broad and potentially troublesome definition of "third pary beneficiary" which would
include a highway district and it's duly created and established local improvement district. As
discussed above, road improvements benefit the general public as a whole, whether undertaken
as a highway district planned and coordinated project or by another entity improving its own
facilities.
As noted in the preceding section, the principles of State v. Idaho Power Company and
Mountain States Telephone and Telegraph Co. v. Boise Redevelopment Agency apply equally to
all other entities of local government including, but not limited to, local improvement districts
established by highway districts under Idaho Code § 40-1322. The inclusion of any entity of
local government, including but not limited to local improvement districts created by highway
districts and public road agencies, in the definition of third pary beneficiary is yet another
violation of Aricle 8 § 4 of the Idaho Constitution and the common law rule that utilities pay the
cost of relocation of their facilities within the public rights-of-way.
ACHD requests that the IPUC overturn its erroneous finding that Section 10 may include
any local improvement districts. (Order No. 30853, page 13). ACHD requests that the IPUC
issue an Order reversing its earlier decisions and striking Rule H Section 10 and applicable
portions of Rule H Section 1.
III.
CONCLUSION
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As demonstrated above, Rule H Section 10 and applicable portions of Rule H section 1 as
modified by Idaho Power are unauthorized usurpations of the clear and exclusive jurisdiction of
Idaho's highway districts and public road agencies by the IPUe. To the extent that Rule H
Section 10 and applicable portions of Rule H Section 1 are applicable to the state or any entity of
local government, including but not limited to public road agencies and local improvement
districts, it is a violation of the Idaho Constitution. Rule H Section 10 and applicable portions of
Rule H Section 1 are also an unconstitutional and legally unauthorized abrogation or amendment
of the common law rule that utilties pay the cost of relocation of their facilities within the public
rights-of-way. ACHD hereby requests that the IPUC issue an Order reversing its earlier
decisions and striking Rule H Section 10 and applicable portions of Rule H Section 1.ttRespectfully submitted this lL day of September, 2009.
1~~.~ -
ŠCOTT D. SPEARS~ollleyfm the Petitioner,
Ada County Highway District
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CERTIFICATE OF SERVICE
I hereby certify that on the .iay of September, 2009, I caused to be delivered by hand or by e-
mail and U.S. Mail (postage pre-paid) in the manner indicated, a true and correct copy of the
foregoing ADA COUNTY HIGHWAY DISTRICT'S BRIEF ON RECONSIDERATION AND
CLARIFICATION upon the following paries:
Jean D. Jewell, Commssion Secretary
Idaho Public Utilties Commssion
P.O. Box 83720
Boise, ID 83720-0074
Service: Hand
Krstine Sasser
Idaho Public Utilties Commssion
P.O. Box 83720
Boise, ID 83720-0074
krs. sasser (gpuc .idaho .gov
Service: e-mail &U.S.Mail
Lisa Nordstrom
Baron L. Kline
Idaho Power Company
P.O. Box 70
Boise, Idaho 83707-0070
lnordstrom (gidahopower.com
bkline (gidahopower .com
Service: e-mail &U.S.Mail
Michael C. Creamer
Givens Pursley, LLP
601 W. Bannock St.
Boise, ID 83702
mcc (g givenspursley .com
Service: e-mail & U.S. Mail
Scott Sparks
Gregory W. Said
Idaho Power Company
P.O. Box 70
Boise, Idaho 83707-0070
ssparks (gidahopower.com
gsaid (gidahopower.com
Service: e-mail & U.S. Mail
Micheal Kurtz, Esq.
Kurt J. Boehm, Esq.
Boehm, Kurtz & Lowry
36 E. Seventh Street, Suite 1510
Cincinnati,OH 45202
mkrtz (g BKLlawfirm.com
kboehm (g BKLlawfirm.com
Service: e-mail & U.S. Mail
Matthew A. Johnson
Davis F. VanderVelde
White Peterson Gigray Rossman
Nye & Nichols, P.A.
5700 E. Franklin Road, Suite 200
Nampa, ID 83687
mjohnson (gwhitepeterson.com
dvandervelde (gwhitepeterson.com
Service: e-mail &U.S.Mail
Kevin Higgins
Energy Strategies, LLC
Parks ide Towers
215 S. State Street, Suite 200
Salt Lake City, UT 84111
khiggins (genergystrat.com
Service: e-mail & U.S. Mail
ADA COUNY HIGHWAY DISTRICTdw&~
SCOTT D. SPEARS, A orney for the Petitioner
Ada County Highway District
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