20120328Petition for Reconsideration.pdf

RECEIVED
201?MAR28 PM 3:t8
1DAW PUBLIC
Merlyn W. Clark, ISB No. 1026
.J D. John Ashby, ISB No. 7228
1< HAWLEY TROXELL ENNIS & HAWLEY LLP
877 Main Street, Suite 1000
- P.O. Box 1617
( Boise, ID 83701-1617
- Telephone: [phone]
Facsimile: 208.954.5210
Email: [e-mail]
[e-mail]
Scott D. Spears -
Ada County Highway District
3775 Adams Street
Garden City, Idaho 83714
Email: [e-mail]
Attorneys for Ada County Highway District
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION ) OF IDAHO POWER COMPANY FOR ) CASE NO. IPC-E-08-22
AUTHORITY TO MODIFY ITS RULE H ) LINE EXTENSION TARIFF RELATED TO ) ADA COUNTY HIGHWAY DISTRICT'S
NEW SERVICE ATTACHMENTS AND ) PETITION FOR RECONSIDERATION
DISTRIBUTION LINE INSTALLATIONS. )
)
)
Pursuant to Idaho Code § 61-626, the Ada County Highway District ("ACHD") submits
this Petition for Reconsideration of the Idaho Public Utilities Commission's (hereinafter
"Commission" or "IPUC") Order No. 32476, dated March 7, 2012.
ADA COUNTY HIGHWAY DISTRICT'S PETITION FOR
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I. INTRODUCTION
In a May 25, 2011, Opinion, the Idaho Supreme Court set aside Section 10 and 11 of
Idaho Power's Rule H Tariff, which attempted to authorize the Commission to allocate utility
relocation costs between Idaho Power and Private Beneficiaries when Public Road Agencies
demand that Idaho Power relocate its facilities on public rights-of-way. See Ada County
Highway Dist. v. Idaho Public Utilities Commission, 253 P.3d 675 (Idaho 2011) ("ACHD v.
IPUC"). Under Section 10, the Commission asserted the authority to determine whether the a
Public Road Agencies' utility relocation demand is for the benefit of a third party, in whole or in
part. Accordingly, the Commission would have authority to require a third party to reimburse
Idaho Power for all or a portion of the utility relocation costs incurred as a result of the Public
Road Agencies relocation demand -- even though the utility relocation was not requested by the
third party. The Idaho Supreme Court set aside Section 10 after concluding that the Commission
does not have authority to require a third party to pay for services that it did not request. Id. at
683 ("Thus, IPUC could require a third party to pay for services that the third party did not
request from Company if IPUC determined that a relocation required by a Public Road Agency
benefited the third party. IPUC has not pointed to any statute granting it that authority.")
Under Section 11 of Idaho Power's Rule H Tariff, the Commission also attempted to
require that Idaho Power and "other parties," including Public Road Agencies, comply with
certain provisions of Idaho Code § 40-210. For example, Section 11 mandated that "Idaho
Power and other parties in the planning process will use their best efforts to find ways to
eliminate the cost of relocating utility facilities. . ." The Idaho Supreme Court set aside Section
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11 because the Commission does not have authority to compel Public Road Agencies'
compliance with Idaho Code § 40-2 10. Id.
After the Idaho Supreme Court's Opinion, Idaho Power subsequently requested the
Commission, pursuant to Idaho Code § 61-629, to approve a revised version of Section 10.
Idaho Code § 61-629 requires the Commission to "alter or amend the order appealed from to
meet the objections of the court."
Despite the objections of the Idaho Supreme Court and ACHD's objections, the
Commission approved a revised version of Section 10 that suffers from the same flaws as the
version set aside by the Idaho Supreme Court. See Order No. 32476. Just like the version set
aside by the Idaho Supreme Court, the new version of Section 10 continues to authorize the
Commission to require a third party to pay for a relocation that the third party did not request if
the Commission determines that a relocation required by a Public Road Agency benefits the third
party. The new version of Section 10 also contains language purporting to require Public Road
Agencies to comply with Idaho Code § 40-210. Finally, the new version of Section 10 contains
new language purporting to limit Public Road Agencies' right to require Idaho Power to relocate
its facilities on public rights-of-way. As set forth in more detail below, the new version of
Section 10 approved by the Commission does not meet the objections of the Court, as required
by Idaho Code § 61-629.
ACHD respectfully requests the Commission to reconsider Order No. 32476. Pursuant to
Idaho Code 61-629, the Commission is statutorily obligated to enter an amended order that is
consistent with the Court's Opinion and incorporates the objections of the Court.
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II. BACKGROUND
A. Idaho Power's October 30, 2008 Application to Modify its Rule H Tariff
On October 30, 2008, Idaho Power filed an Application with the Commission seeking
authority to modify its line extension tariff commonly referred to as the "Rule H" Tariff, which
generally sets forth Idaho Power's rates and charges for certain services and regulates new
service attachment and distribution line installations or alterations. R., Vol. I, pp. 1-56. Prior to
Idaho Power's Application, Rule H did not address utility relocations on public rights-of-way. In
connection with the 2008 Application, however, Idaho Power sought to add a new section,
"Section 10," allocating cost responsibility for utility relocations required by public road
improvement projects on public rights-of-way. R., Vol. I, pp. 22-23.
I Section 10, as proposed by Idaho Power, allocated utility relocation costs between Idaho
Power and Private Beneficiaries when Public Road Agencies require Idaho Power to relocate its
facilities on public rights-of-way. More specifically, as proposed by Idaho Power, Section 10
required Private Beneficiaries to pay Idaho Power for the percentage of relocation costs equal to
the extent to which the public road improvement project is for the benefit of Private
Beneficiaries.
On July 1, 2009, the Commission issued Order No. 30853, granting Idaho Power's
Application to modify Rule H. R., Vol. II, pp. 313-326. ACHD filed a Petition for
Reconsideration, requesting reconsideration and clarification of the Commission's approval of
Section 10. R. Vol. II, pp. 34 1-357. ACHD objected on grounds that Section 10 exceeded the
Commission's authority and encroached upon ACHD's Resolution 330, which regulates utility
relocations on public rights of way within ACHD's jurisdiction.
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After briefing and a hearing, the Commission issued Order No. 30955, which approved a
modified version of Section 10 and added a new section - "Section 11"— to Rule H. R. Vol. IV,
pp. 648-678. Section 11 purported to mandate that Idaho Power and "other parties" involved in
public road projects "use their best efforts to find ways to eliminate the cost of relocating utility
facilities, or if elimination is not feasible, to minimize the relocation costs to the maximum
extent reasonably possible." Id. at 659-660; 678.
B. The Idaho Supreme Court Appeal
ACHD filed an appeal to the Idaho Supreme Court from the Commission's final order on
grounds that Section 10 and Section 11 of Rule H exceeded the authority granted to the
Commission by the Legislature. The scope of the Idaho Supreme Court's review of an order
from the Commission is governed by Idaho Code § 61-629, under which the Idaho Supreme
Court determines "whether the commission has regularly pursued its authority." Under this
standard, an order of the Commission is set aside if the order is in excess of the Commission's
jurisdiction. See Idaho Power Co. v. Idaho Public Utilities Comm 'n, 99 Idaho 374, 379, 582
P.2d 720, 725 (1978); Washington Water Power Co. v. Kootenai Envtl. Alliance, 99 Idaho 875,
878, 591 P.2d 122, 125 (1979) (setting aside a Commission order where the Commission was
"without jurisdiction to issue the orders which are the subject of this appeal").
The primary issue addressed by the Idaho Supreme Court on appeal was whether Section
10 and Section 11 exceeded the Commission's authority by providing that the Commission may
determine whether a utility relocation, in whole or in part, is for the benefit of a third party. The
Idaho Supreme Court noted that the Commission "has the authority to determine the costs that
Company can charge a private person who requests services from Company." See ACHD v.
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IPUC, 253 P.3d at 682. However, the Court held that Section 10 exceeded the Commission's
authority because it goes much further than that. Specifically, the Court explained:
Under Section 10, when a Public Road Agency requires that Idaho
Power relocate its distribution facilities, IPUC has the authority to
determine whether the relocation, in whole or in part, is for the
benefit of a third party. If it determines that it is, then Section 10
would allocate all or a portion of the costs of relocation to that
third party. Thus, IPUC could require a third party to pay for
services that the third party did not request from Company if IPUC
determined that a relocation required by a Public Road Agency
benefited the third party. IPUC has not pointed to any statute
granting it that authority.
Id. at 682-83. Accordingly, the Court set aside Section 10. Id.
A related issue presented to the Idaho Supreme Court was whether the Commission has
authority to resolve disputes between Idaho Power and Private Beneficiaries related to relocation
costs. As to this issue, there was significant disagreement between Idaho Power and the
Commission. Idaho Power took the position throughout the Commission and Idaho Supreme
Court proceedings that the Commission has the authority to resolve disputes between Private
Beneficiaries and Idaho Power regarding what portion of utility relocation costs must be paid by
Private Beneficiaries. See Respondent Idaho Power's Brief, pp. 30-31 ("If a dispute between
Idaho Power and a private beneficiary should arise concerning cost recovery by Idaho Power, the
Commission would have jurisdiction to resolve the reimbursement dispute."). The Commission
disagreed with Idaho Power's position that the Commission should resolve disputes between
Idaho Power and Private Beneficiaries with regard to reimbursement of utility relocation costs.
See Respondent Brief of the Idaho Public Utilities Commission, p. 26.
The question of whether the Commission has authority to resolve disputes between Idaho
Power and Private Beneficiaries was addressed during the Idaho Supreme Court oral argument.
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Counsel for the Commission confirmed that the Commission does not have authority to
adjudicate disputes between Idaho Power and Private Beneficiaries as to the portion of relocation
costs that must be paid by Private Beneficiaries. The Idaho Supreme Court addressed that
admission in its written opinion:
During oral argument, IPUC admitted that it could not adjudicate
the dispute between the third party and Company. It also admitted
that if Company wanted to recover relocation costs from a third
party, it would have to sue in court and Section 10 would not
apply.
ACHD v. IPUC, 253 P.3d at 683.
Finally, the Idaho Supreme Court set aside Section 11 because the Commission does not
have authority to compel Public Road Agencies' compliance with Idaho Code § 40-2 10. Id.
("Although the legislature has the authority to order public highway agencies to use their best
efforts to minimize the cost of relocating utility facilities, IPUC does not have that authority.").
C. Order No. 32476
Idaho Power subsequently requested the Commission, pursuant to Idaho Code § 61-629,
to issue an order approving an amended version of Rule H Section 10 that purportedly
conformed with the Idaho Supreme Court's Opinion. See Idaho Power Company's Amended
Motion to Accept Conforming Rule H Section 10 Tariff. ACHD objected to the version of
Section 10 proposed by Idaho Power on grounds that it contradicts the Idaho Supreme Court's
Opinion and violates Idaho Code 61-629. On March 7, 2012, the Commission issued Order No.
32476, which approved Idaho Power's proposed amended Section 10 with minor changes.
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III. ANALYSIS
A.The Commission Can Approve An Amended Rule H Only If It Meets The
Objections Of The Court
Idaho Code § 61-629 authorizes the Commission only to "alter or amend the order
appealed from to meet the objections of the court in the manner prescribed in section 61-624,
Idaho Code." Id. (emphasis added). The statute does not allow Rule H to be amended in a way
that deviates from, or is inconsistent with, the Idaho Supreme Court's opinion in ACHD v. IPUC.
Affected parties cannot negotiate an amended order that does not comply with Idaho Code § 61-
629. After a Idaho Supreme Court's decision, the Commission is only authorized to alter or
amend the order to meet the objections of the Court.
B.The First Paragraph Of The Amended Rule H Improperly Grants The Commission
Authority To Compel ACHD's Compliance With Idaho Code § 40-210
The first paragraph of Idaho Power's Proposed Amended Rule H provides as follows:
The Company often locates its distribution facilities within state
and local public road rights-of-way under authority of Idaho Code
§ 67-705 (for locations outside Idaho city limits) and the
Company's city franchise agreements (for locations within Idaho
City limits). When the Company is notified of a road improvement
project pursuant to Idaho Code § 40-210, the Company will meet
with the Public Road Agency as provided in Idaho Code § 40-
210.
(Emphasis Added).
The first sentence of this first paragraph is consistent with the Idaho Supreme Court's
recent Opinion, but the second sentence is not. The Idaho Supreme Court clearly set aside
Section 11 of the previously proposed Rule H because it purported to require "other parties,"
including ACHD to comply with Idaho Code § 40-210. Specifically, the Court explained:
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The second sentence in Section 11 states, "The Company and other
parties in the planning process will use their best efforts to find ways
to eliminate the cost of relocating utility facilities, or if elimination is
not feasible, to minimize the relocation costs to the maximum extent
reasonably possible." ... .Those other parties would include ACHD
and entities which are not utilities regulated by IPUC. . . . Although
the legislature has the authority to order public highway agencies to
use their best efforts to minimize the cost of relocating utility
facilities. IPUC does not have that authority.
ACHD v. IPUC, 253 P.3d at 683 (italics in original, underlining added).
The newly proposed language mandates that Public Road Agencies notify Idaho Power of
road improvement projects pursuant to Idaho Code § 40-210. It further mandates that "the
Company will meet with the Public Road Agency as provided in Idaho Code § 40-210." Not
only is that language unnecessary and duplicative of the statute, but it purports to place
obligations on Public Road Agencies to notify and meet with Idaho Power.
Idaho Power erroneously contends that this language "does not affect ACHD." See Idaho
Power Company's Answer to the Ada County Highway District's Memorandum in Opposition to
Idaho Power Company's Amended Motion to Accept Conforming Rule H Section 10 Tariff
("Idaho Power's Answer"), p. 5. The Commission agreed, stating that the first paragraph "now
confirms only Idaho Power's legal obligation to meet with road agencies when notified of a
project by the agency." The Commission further characterized ACHD's objection as "apparently
based merely on the reference to Section 40-210 in the sentence." These statements are
incorrect.
ACHD's objection is not based on the mere reference to Idaho Code § 40-210, and the
first paragraph does more than merely compel Idaho Power's compliance with that statute. The
provision that, "When the Company is notified of a road improvement project pursuant to Idaho
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Code § 40-210, the Company will meet with the Public Road Agency as provided in Idaho Code
§ 40-2 10," mandates at least three things: (1) that ACHD provide notice to Idaho Power of road
improvement projects; (2) that Idaho Power meet with ACHD; and (3) that ACHD meet with
Idaho Power. Just like the Commission does not have authority to compel "other parties,"
including public road agencies, to "use their best efforts to find ways to eliminate the cost of
relocating utility facilities," the Commission does not have authority to compel public road
agencies to notify and meet with Idaho Power.
Indeed, Section 10 purports to go even further than Idaho Code § 40-210, which sets
forth only the "intent of the legislature" that Public Road Agencies and utilities work to reduce
relocation costs. Section 10, as now written, would apparently give the Commission to compel
Public Road Agencies' compliance with the statute. This begs the question of what the
Commission will do if a Public Road Agency does not give notice to Idaho Power of road
improvement projects, does not meet with Idaho Power, or otherwise does not comply with
Idaho Code § 40-210 or if Idaho Power does not comply with the Order. ACHD has and will
continue to comply with Idaho Code § 40-210, but it objects to any provision implying that the
Commission has authority to compel ACHD's or Idaho Power's compliance. Any failure to
comply with Idaho Code § 40-210 must be addressed by a court, not by the Commission. The
Idaho Supreme Court expressly held that the Commission does not have the authority to order
Public Road Agenciesto use their best efforts to minimize the cost of relocating utility facilities.
Id.
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In summary, the first paragraph of Section 10 does not meet the objections of the Court
because it still purports to assert authority over Public Road Agencies' compliance with Idaho
Code § 40-210.
C. The Second Paragraph Of The Proposed Amended Rule H Is Inconsistent With The
Idaho Supreme Court's Opinion In That It Purports To Limit ACHD's Authority
To Require Utility Relocations
The common law rule in Idaho is that, upon demand from a Public Road Agency, a utility
must relocate its facilities located on a public right-of-way. See State ex rel. Rich v. Idaho Power
Co., 81 Idaho 487, 501 (Idaho 1959) ("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."). In ACHD v. IPUC, the Idaho Supreme Court interpreted Idaho Code § 62-705
and affirmed the common law rule, without limitation, as follows:
When ACHD determines that a utility must remove or locate its
facilities that are within the public right-of-way, the Public Road
Agency is not required to bear any of the utilities cost of doing so.
[cite omitted] The utility must proceed with the relocation. . . . The
utility is required to complete the relocation regardless of whether
it is reimbursed by a third party.
ACHD v. IPUC, 253 P.3d at 680-81.
The second paragraph of the proposed amended Rule H contradicts the Idaho Supreme
Court's recent opinion by purporting to limit the circumstances under which ACHD can require
Idaho Power to relocate its facility:
If a Public Road Agency determines that the Company's facilities
incommode the public use of any road, highway, or street, the
Public Road Agency can require the company to relocate or
remove the facilities. If a Public Road Agency determines that the
Company's facilities must be relocated or removed because they
incommode the public use of the road, highway, or street, the
Company will relocate its distribution facilities from or within the
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public road rights-of-way and the Company will bear the costs of
such relocation.
(Emphasis added).
Idaho Power asserts that its proposed language "has no application whatsoever to Public
Road Agencies" and "does not in any way restrict the rights of Public Road Agencies to require
utilities to relocate or remove their facilities from public road rights-of-way under Idaho law."
Instead, Idaho Power explains that the purpose of its proposed language is merely to describe the
"most common reasons" for a utility relocation. Regardless of Idaho Power's intent, the
language in the Proposed Amended Rule H indicates that the only circumstance under which a
Public Road Agency "can require" utility relocation is "[i]f a Public Road Agency determines
that the Company's facilities must be relocated or removed because they incommode the public
use [of the right-of-way]."
In approving the second paragraph, the Commission incorrectly asserts that "the [second]
paragraph is virtually identical to language in the appealed tariff, and the Court did not set aside
the provision." The version of Section 10 previously approved by the Commission did not
contain any language limiting the reasons for which a Public Road Agency could require utility
relocation. Consistent with the Idaho Supreme Court's interpretation of Public Road Agencies'
rights, it simply provided: "At the request of a Public Road Agency, the Company will relocate
its distribution facilities from or within the public road rights-of-way." See R., Vol. IV, p. 677.
In summary, the second paragraph of Section 10 does not meet the objections of the
Court because it purports to limit Public Road Agencies' authority in a way to contradicts the
Idaho Supreme Court's decision. As previously suggested by ACHD, the limiting language
should be deleted from the second paragraph. The second paragraph should mirror the
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previously approved Section 10 as follows: "At the request of a Public Road Agency, the
Company will relocate its distribution facilities from or within the public rights-of-way and the
Company will bear the costs of such relocation."
D. The Third Paragraph Of The Amended Rule H Is Inconsistent With The Idaho
Supreme Court's Opinion
The third paragraph of the amended Rule H, as approved by the Commission, is as
follows:
If one or more Private Beneficiaries has, directly or indirectly
through a Public Road Agency, requested that the Company's
facilities be relocated or removed, the Company will use
reasonable efforts to recover that portion of the total Relocation or
removal costs attributable to the request from the Private
Beneficiaries. If the Private Beneficiaries dispute the Company's
calculation of the Private Beneficiaries' cost responsibility, either
the Company or the affected Private Beneficiaries may initiate a
proceeding to have the Commission establish the reasonableness of
the Company's calculation of the Relocation or removal cost
responsibility as between the Company and the Private
Beneficiaries.
Under this paragraph, Commission would have authority to determine whether a Public
Road Agencies' request for utility relocation is for the benefit of one or more Private
Beneficiaries, and thus construe it as a request from the Private Beneficiaries. The Idaho
Supreme Court has already held, however, that the Commission does not have such authority.
Idaho Power and the Commission focus on a sentence in the opinion stating that the
"IPUC certainly has the authority to determine the costs that Company can charge a private
person who requests services from Company." Id. Idaho Power and the Commission apparently
interpret this sentence as allowing Idaho Power to determine that a Public Road Agency's
demand for utility relocation is really an "indirect" request for service from a private party.
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Notably, Idaho Power has taken inconsistent positions in this regard. In its Amended Motion to
Accept Conforming Rule H Section 10 Tariff, Idaho Power stated that the Idaho Supreme
Court's decision "does not address" the "respective rights and responsibilities of the
Commission, the private party, and the Company when the private party requests a relocation of
utility facilities located in a public road right-of-way." See Amended Motion to Accept
Conforming Rule H Section 10 Tariff, p. 3. Then, in its most recent briefing, Idaho Power takes
the position that "[t]he Supreme Court stated unequivocally that when a private party (Private
Beneficiary) requests utility services such as relocation of utility facilities, the Commission's
primary jurisdiction is invoked." See Idaho Power's Answer, p. 7 (emphasis in original).
Not only are Idaho Power's two positions inconsistent, but they are both wrong. The
Idaho Supreme Court expressly held that a Public Road Agency's relocation demand is IIQI a
request for service from a private party and that the Commission has no authority to treat it as
such. In setting aside the prior version of Section 10, the Idaho Supreme Court described the
authority purportedly granted to the Commission by Section 10 and then held that the
commission does not have that authority:
IPUC certainly has the authority to determine the costs that
Company can charge a private person who requests services from
Company. However, Section 10 goes further than that. Under
Section 10, when a Public Road Agency requires that Idaho
Power relocate its distribution facilities, IPUC has the
authority to determine whether the relocation, in whole or in
part, is for the benefit of a third party. If it determines that it is,
then Section 10 would allocate all or a portion of the costs of
relocation to that third party. Thus, IPUC could require a third
party to pay for services that the third party did not request
from Company if IPUC determined that a relocation required
by a Public Road Agency benefited the third party. IPUC has
not pointed to any statute granting it that authority.
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Id. (emphasis added).
The above-quoted paragraph is the crux of the Idaho Supreme Court's decision to set
aside Section 10, and it sets forth several key conclusions. First, the Court set aside Section 10
because it purported to grant the Commission "authority to determine whether the relocation
[required by a Public Road Agency], in whole or in part, is for the benefit of a third party."
Second, the Court recognized that, while utility relocation may be a "service," a demand from a
Public Road Agency to relocate utility facilities is not a request for services from a third party.
Third, the Court expressly held that the Commission does not have authority to "require a third
party to pay for services that the third party did not request from Company if IPUC determined
that a relocation required by a Public Road Agency benefited the third party." Id. (emphasis
added).
A Public Road Agency's demand that Idaho Power relocate utility facilities on public
rights-of-way is not a request from a third party. The Commission recognized as much in Order
No. 32476:
It is clear in this context that the Court's objection was to the
possibility the Commission "could require a third party to pay for
services that the third party did not request.". .
Section 10 would have authorized the Commission in some
circumstances to require a third party to pay for services that the
third party did not request from Idaho Power.
See Order No. 32476, p. 9.
As the Commission has acknowledged, the reason the Idaho Supreme Court set aside
Section 10 was because it would allow the Commission to treat a utility relocation demand from
a Public Road Agency -- a demand described by the Court as a service "that the third party did
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not request from Company" -- as if it were a request for service from a third party. Yet the new
version of Section 10 approved by the Commission does just that. It allows the Commission to
determine whether a utility relocation demand from a Public Road Agency is really a request for
service from the third party. The Idaho Supreme Court has already held that that Commission
has no such authority. See ACHD v. IPUC, 253 P.3d at 683 ("Thus, IPUC could require a third
party to pay for services that the third party did not request from Company if IPUC determined
that a relocation required by a Public Road Agency benefited the third party. IPUC has not
pointed to any statute granting it that authority.")
Notably, Section 6 of Rule H separately addresses requests for relocation from third
parties. See R., Vol. I, p 17 ("If an Applicant or Additional Applicant requests a Relocation...
of Company facilities, the Applicant or Additional Applicant will pay a non-refundable charge
equal to the Cost Quote."). That provision is not at issue here. The only question at issue here is
whether the Commission has authority treat a demand for utility relocation from a Public Road
Agency as a request from a third party, and the Idaho Supreme Court has already held that it
does not.
The second sentence of the third paragraph of Section 10 should similarly be removed
because it purports to grant the Commission authority to resolve disputes between Idaho Power
and Private Beneficiaries as to the allocation of utility relocation costs demanded by Public Road
Agencies. The second sentence contradicts the Idaho Supreme Court's conclusion, and the
Commission's admission, that the Commission does not have authority to adjudicate disputes
between Idaho Power and Private Beneficiaries. See ACHD v. IPUC, 253 P.3d at 83 ("During
oral argument, IPUC admitted that it could not adjudicate the dispute between the third party and
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Company. It also admitted that if Company wanted to recover relocation costs from a third
party, it would have to sue in court and Section 10 would not apply.").
The Commission approved this dispute resolution provision on grounds that "[n]owhere
does the Court's decision say the Commission cannot adjudicate a dispute between Idaho Power
and a third party involving services requested by the party under a proper Idaho Power tariff."
See Order No. 32476, p. 10 (emphasis added). Again, however, the Idaho Supreme Court has
already held that a utility relocation demand from a Public Road Agency is not a request for
services from a third party.
In summary the third paragraph of Section 10 does not meet the objections of the Court
because it allows the Commission to determine whether a utility relocation demand from a
Public Road Agency is really a request for service from the third party -- the very reason the
Court set aside the prior version of Section 10.
IV. CONCLUSION
For the foregoing reasons, ACHD respectfully asks that the Commission reconsider
Order No. Order No. 32476. The Idaho Supreme Court set aside Section 10. If the Commission
finds it necessary to adopt an amended Rule 10, it must approve a version of Section 10 that
meets the objections of the Court.
) (p4 L
DATED THIS /. day of March, 2012.
HAWLEY TROXELL ENNIS & HAWLEY LLP
Merlyn W. Clark, ISB No. 1026
D. John Ashby, ISB No. 7228
Attorneys for Ada County Highway District
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 0 po this day of March, 2012, I caused to be served a true
copy of the foregoing ADA COUNTY HIGHWAY DISTRICT'S ADA COUNTY HIGHWAY
DISTRICT'S PETITION FOR RECONSIDERATION by the method indicated below, and
addressed to each of the following:
Commission Staff
Weldon B. Stutzman
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington
P.O. Box 83720
Boise, Idaho 83720-0074
Building Contractors Association of Southwestern
Idaho
Michael C. Creamer
GIVENS PURSLEY, LLP
601 West Bannock Street
P.O. Box 2720
Boise, Idaho 83701-2720
City of Nampa and Association of Canyon County
Highway Districts
Matthew A. Johnson
Davis F. VanderVelde
WHITE PETERSON GIGRAY ROSSMAN NYE &
NICHOLS, P.A.
5700 East Franklin Road, Suite 200
Nampa, Idaho 83687
The Kroger Co.
Michael L. Kurtz
Kurt J. Boehm
BOEHM, KURTZ & LOWRY
36 East Seventh Street, Suite 1510
Cincinnati, Ohio 45202
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ADA COUNTY HIGHWAY DISTRICT'S PETITION FOR
RECONSIDERATION -18
44805.0001.4861785.1
Kevin Higgins
ENERGY STRATEGIES, LLC
215 South State Street, Suite 200
Salt Lake City, Utah 84111
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.John Ashby
ADA COUNTY HIGHWAY DISTRICT'S PETITION FOR
RECONSIDERATION -19
44805.0001.4861785.1