20090722Petition for 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
REef/tiff)
2009 JUL 22 d ,/
PH 3' 231 IDAHo .. .UltUTtES PUB!!,,
COMMh~S/ON
BEFORE THE IDAHO PUBLIC UTILITIES COMMSSION
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
)
) PETITION FOR
) RECONSIDERA TIONI
) CLARIFICATION BY
) ADA COUNTY
) HIGHWAY DISTRICT
)
The ADA COUNTY HIGHWAY DISTRICT (hereinafter "ACHD") hereby submits the
following PETITION FOR RECONSIDERAITON/CLARIFICATION in the above-captioned
matter pursuant to the Idaho Public Utilties Commssion's (hereinafter "IPUC") Order No.
30853, dated July 1, 2009, and Idaho Code § 61-626.
1.
HIGHWAY DISTRICTS POSSESS EXCLUSIVE JURISDICITION OVER THE PUBLIC
RIGHTS-OF- WAY AND FULL POWER TO ESTABLISH USE STANDARDS
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.
PETITION FOR RECONSIDERATION/CLARIFICATION
BY ADA COUNTY HIGHWAY DISTRICT
1
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
andjurisdiction 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 commssioners of the county and in the district directors of highways
if the highway district had not been organized. Where any highway within the
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 reconstruction 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,
offcers 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 juridiction, 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
constred and all necessar powers are to be implied.
40-1312. GRANT OF POWERS TO BE LffERALLY 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 effcient. The
enumeration of certain powers that would be implied without enumeration shall
PETITION FOR RECONSIDERATION/CLARIFICATION
BY ADA COUNTY HIGHWAY DISTRICT
2
not be construed as a denial or exclusion of other implied powers necessary for
the free and efficient 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 commssioners 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,
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:
40-1406. 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 §§
40-1310(1),40-1310(8),40-1312, and 40-1406, such laws are superseded by these provisions of
Idaho law.
PETITION FOR RECONSIDERATION/CLARIFICATION
BY ADA COUNTY HIGHWAY DISTRICT
3
In Vilage of Lapwai v. Allgier, 78 Idaho 124,299 P.2d 475 (1956), 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 facilities within the public rights-
of-way relocate per Idaho Code § 62-705. Pursuant to Idaho Code § 62-705, utility use of public
lands is permssive 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, 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 utilty 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
thereof by 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).
PETITION FOR RECONSIDERATION/CLARIFICATION
BY ADA COUNTY HIGHWAY DISTRICT
4
Under the common law rule, "utilties 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
expense." 81 Idaho at 501. The highway district's exclusive authority and jurisdiction over the
public right-of-way necessarily includes the exclusive power to determne who pays for the
utilityrelocation. 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. Alligier, and performng 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. Resolution 330 reflected the work of
representatives of ACHD, the Boise City Deparment of Public Works and various utility
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 responsibilty, 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
PETITION FOR RECONSIDERATION/CLARIFICATION
BY ADA COUNTY HIGHWAY DISTRICT
5
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.
II.
SECTION 10 OF RULE HIS BEYOND THE JURISDICTIONAL AUTHORITY OF 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 Utilties 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
determne 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 Utilities Commission, 107
Idaho 47,685 P.2d 276 (1984) 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 Utilities Commission, 107 Idaho at 52.
PETITION FOR RECONSIDERATION/CLARIFICATION
BY ADA COUNTY HIGHWAY DISTRICT
6
The IPUC is not granted authority to determne 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
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 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.
Section 10, Rule H is beyond the jurisdictional authority of the IPUC because it seeks to
affirmatively regulate the state's public road agencies, entities of government, third paries, and
developers and impose upon them the duty to pay for mandatory utility relocations in an
unreasonable, one size fits all approach. The state's public road agencies, entities of
government, third paries and developers are not "public utilties" as defined in Idaho Code § 61-
129. Idaho Code § 61-101 provides, "(t)his act shall be known as "The Public Utilities 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 of the Idaho Code, which
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 facilties
PETITION FOR RECONSIDERATION/CLARIFICATION
BY ADA COUNTY HIGHWAY DISTRICT
7
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 permssively 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 determne whether utility
costs associated with mandatory relocations may be included in a utilty's rate base, but this is
the limit ofthe 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 thereby
impose upon public road agencies, entities of government, third paries, and developers the duty
to pay for such relocations. Moreover, 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
affrmatively intervene in the exclusive jurisdiction ofthe 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.
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 permssively 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.
PETITION FOR RECONSIDERATION/CLARIFICATION
BY ADA COUNTY HIGHWAY DISTRICT
8
Section 10 of Rule H is 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 Section 10 of Rule H, the IPUC wil effectively regulate and control
electric utilty relocations by assigning financial liability 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. ACHD is unaware of any similar move by the
IPUC since its formation in nearly 100 years ago. ACHD questions this aggressive and
unprecedented move now, at this time.
ACHD requests that the IPUC reconsider and clarify 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).
In Order No. 30853 at page 9, the IPUC notes Idaho Power's acknowledgement that local
road agencies such as ACHD have "sole and complete (exclusive) jurisdiction to determne 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 exclusive
jurisdiction", but that somehow, with regard to utility relocations, the local 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 concurrently.
As previously stated, 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 utilty relocations (including financial liabilty
PETITION FOR RECONSIDERATION/CLARIFICATION
BY ADA COUNTY HIGHWAY DISTRICT
9
for utility relocations) with the adoption of ACHD Resolution 330 in September 1986. Section
10, Rule H usurps ACHD Resolution 330 and ACHD's exclusive jurisdiction as outlined above.
Additionally, Section 10, Rule H 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. 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.
Additionally, in adopting Section 10, Rule H, the IPUC erroneously assumes that the
public (rate payers) does not benefit from road projects funded by entities of government, 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, 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.
Moreover, the Idaho Supreme Court has clearly stated that the permssive 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.
PETITION FOR RECONSIDERATION/CLARIFICATION
BY ADA COUNTY HIGHWAY DISTRICT
10
ACHD requests that the IPUC reconsider and clarify 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 affrmatively 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.
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.
III.
SECTION 10 OF RULE H IS UNCONSTITUTIONAL
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) and affrmative obligation to
pay for utilty relocations associated with state highway projects. The Idaho Supreme Court
ruled that Idaho Code § 40-120(27) violated both Aricle 8 § 2 and Aricle 7 § 17 of the Idaho
CQnstitution. State v. Idaho Power Company, 81 Idaho at 515.
In Order No. 30853, at pages 12 and 13, the IPUC makes the clearly erroneous findings:
"Section does not impede a public road agency's right to require Idaho Power to relocate
facilties in the public right-of-way, at no cost to the public road agency, where the facilties
incommode the public use"; "the Idaho Constitution and existing case law are not violated
because Section 10 in no way grants Idaho Power or this Commssion authority to impose such
PETITION FOR RECONSIDERATION/CLARIFICATION
BY ADA COUNTY HIGHWAY DISTRICT
11
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 Power Company, it is
clear that Subsection d of Section 10 clearly imposes a duty upon the state and local 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) Aricle 8 § 4 of the Idaho Constitution (local road agencies).
Additionally, the principles of State v. Idaho Power Company equally apply to other
entities of local government including but not limited to, local improvement districts. The
inclusion of any entity of local government, including but not limited to local improvement
districts, in the definition of third pary beneficiary is yet another violation of Aricle 8 § 4 of the
Idaho Constitution.
ACHD requests that the IPUC reconsider and clarfy its erroneous finding that Section 10
does not violate the Idaho Constitution. (Order No. 30853, page 12).
iv.
SECTION 10 OF RULE H is AN ILLEGAL 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) 81 Idaho at 501. As
PETITION FOR RECONSIDERATION/CLARIFICATION
BY ADA COUNTY HIGHWAY DISTRICT
12
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 affirmative obligation to
pay for utilty relocations associated with state highway projects. In addition to finding Idaho
Code § 40-120(27) to be a violation of Aricle 8 § 2 and Aricle 7 § 17 of the Idaho Constitution
as discussed in the preceding section III, the Idaho Supreme Court also indicated that Idaho Code
§ 40-120(27) was an unconstitutional abrogation of the common law rule.
Weare 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. As (Idaho Power's and Mountain States
Telephone's) asserton 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 utilty 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, 81 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 Section 10, Rule H, an
administrative rule of the IPUC is certainly contrary to the Idaho Constitution's limitation on
power. Clearly, Section 10, Rule H is a violation of the Idaho Constitution's limitation on power
to abrogate or amend the common law rule that utilties pay the cost of relocation of their
facilties from the public rights-of-way.
Supporting the conclusion that the common law rule applies any time a utilty is
requested to relocate its facilities from the public rights-of-way, is Mountain States Telephone
PETITION FOR RECONSIDERATION/CLARIFICATION
BY ADA COUNTY HIGHWAY DISTRICT
13
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-
2018(j)(3) permit 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.
As demonstrated above in Section II., 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 reconsider and clarify its legal authority and jurisdiction to
adopt and enforce Section 10, Rule H, 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
PETITION FOR RECONSIDERATION/CLARIFCATION
BY ADA COUNTY HIGHWAY DISTRICT
14
reimbursement of utility relocation costs in Idaho Code §§ 61-502, 61-503, and 62-705 per
Mountain States Telephone and Telegraph Co. v. Boise Redevelopment Agency.
v.
THIRD PARTY BENEFICIARY
As currently written, the Section 10 of Rule H includes an overly broad and potentially
troublesome definition of "third pary beneficiary" 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, a road improvement occurrng as par of a city sewer
project. From the highway district's perspective, 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.
The inclusion of any entity of local government, including but not limited to local improvement
districts, in the definition of third pary beneficiar 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 reconsider and clarify its erroneous finding that Section 10
may include any local improvement districts. (Order No. 30853, page 13). Specifically, ACHD
requests that unless overturned in its entirety, that Section 10 of Rule H be modified to expressly
exclude public entities and political subdivisions from the definition of "third pary beneficiary".
PETITION FOR RECONSIDERATION/CLARIFICATION
BY ADA COUNTY HIGHWAY DISTRICT
15
Vi.
CONCLUSION:
As demonstrated above, Section 10, Rule H is an unauthorized usurpation of the clear and
exclusive jurisdiction of Idaho's highway districts and local road agencies by the ipUe. To the
extent that Section 10, Rule H is applicable to the state or any entity of local government,
including but not limited to local road agencies and local improvement districts, it is a violation
of the Idaho Constitution. Section 10, Rule H is also an unconstitutional and legally
unauthorized abrogation or amendment of the common law rule that utilities pay the cost of
relocation of their facilities within the public rights-of-way. ACHD hereby petitions and
requests reconsideration/clarification of Order No. 30853 as set forth herein by written briefs. If
ACHD's Petition for Reconsideration/Clarfication is granted, ACHD wil provide additional
argument on the issues raised herein.
Respectfully submitted this Ll.day of July, 2009.
SCOTT D. SPEAR , Attorney for the Petitioner,
Ada County Highway District
PETITION FOR RECONSIDERATION/CLARIFICATION
BY ADA COUNTY HIGHWAY DISTRICT
16
CERTIFICATE OF SERVICE
I hereby certify that on the 1.1. day of July, 2009, I caused to be delivered by hand or bye-mail
and u.s. Mail (postage pre-paid) in the manner indicated, a true and correct copy of the foregoing
PETITION FOR RECONSilERA TION/CLARIFICA TION BY ADA COUNTY HIGHWAY
DISTRICT upon the following paries:
Jean D. Jewell, Commssion Secreta
Idaho Public Utilties Commssion
P.O. Box 83720
Boise, il 83720-0074
Service: Hand
Krstine Sasser
Idaho Public Utilties Commssion
P.O. Box 83720
Boise, il 83720-0074
krs. sasser Cipuc.idaho .gov
Service: e-mail & U.S. Mail
Lisa Nordstrom
Barton L. Kline
Idaho Power Company
P.O. Box 70
Boise, Idaho 83707-0070
lnordstrom Ciidahopower.com
bkline Ciidahopower .com
Service: e-mail &U.S.Mail
Michael C. Creamer
Givens Pursley, LLP
601 W. Bannock St.
Boise, il 83702
mcc Ci 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 Ciidahopower .com
gsaid Ciidahopower .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 Ci BKLlawfirm.com
kboehm Ci BKLlawfirm.com
Service: e-mail & U.S. Mail
Matthew A. Johnson
Davis F. VanderVelde
White Peterson Gigray Rossma
Nye & Nichols, P.A.
5700 E. Franin Road, Suite 200
Nampa, il 83687
mjohnson Ciwhitepeterson.com
dvandervelde Ciwhitepeterson.com
Service: e-mail & U.S. Mail
Kevin Higgins
Energy Strategies, LLC
Parkside Towers
215 S. State Street, Suite 200
Salt Lake City, UT 84111
khiggins Cienergystrat.com
Service: e-mail &U.S.Mail
ADA COUNY HIGHWAY DISTRICT
¿~~k~epettioner
Ada County Highway District
PETITION FOR RECONSIDERA TION/CLARIFICATION
BY ADA COUNTY HIGHWAY DISTRICT
17