20120518Brief.pdf

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2012 MAY 18 PM 2:36
IDAHO UE1UC
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Merlyn W. Clark, ISB No. 1026
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Z D. John Ashby, ISB No. 7228
HAWLEY TROXELL ENNIS & HAWLEY LLP
877 Main Street, Suite 1000
CD P.O. Box 1617
Boise, ID 83701-1617
Telephone: [phone] CD Facsimile: 208.954.5210
Email: mc1arkhaw1eytroxell.com
[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 ) BRIEF IN RESPONSE TO ORDER NO.
DISTRIBUTION LINE INSTALLATIONS. ) 32532
)
Pursuant to Order No. 32532, and in support of its Petition for Reconsideration, the Ada
County Highway District ("ACHD") submits the following brief.
I. INTRODUCTION
The Commission has asked the parties to submit evidence and briefing relating to the
issue of third party requests for the relocation of Idaho Power's facilities located within a public
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roadway. ACHD submits this response and the accompanying affidavit of Dorrell R. Hansen in
response to the Commission's request.
The Commission's inquiry does not go to the real question at issue here -- whether the
proposed Section 10 meets the objections of the Idaho Supreme Court's decision. Rule H
contains two sections addressing utility relocation -- Section 6 and Section 10. Section 6
addresses utility relocation costs where a private party requests a utility relocation. Under
Section 6, the private party requesting utility relocation pays the cost of the utility relocation.
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."). As explained by Mr. Harrington, "A private party could request that
Idaho Power relocate or bury facilities that are currently located in the road right-of-way and we
would do that at the expense of the requesting party." See April 19, 2012 Transcript, p. 29, 11.
14-18. The Commission's authority over such a request is not in question here. Section 6 would
apply to any request for relocation from a private party, whether on private property or on a
public right-of-way.
By contrast, Section 10 addresses utility relocation demands from Public Road Agencies.
By its own terms, Section 10 applies only where a "Public Road Agency determines that the
Company's facilities must be relocated or removed." Indeed, the whole purpose of adding
Section 10 was to address the situation where the "Company is required to relocate distribution
facilities at the request of a public roadway owner." See Record, p. 75 (testimony of Scott D.
Sparks describing the "purpose of the new section"). Thus, any request for utility relocation
from a private party is governed by Section 6, not Section 10.
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To answer the Commission's inquiry, a private party cannot require that Idaho Power
relocate its facilities on a public right-of-way. Unlike a Public Road Agency, a private party has
no authority over a public right-of-way or over Idaho Power. This is simply a contractual matter
between a third party and Idaho Power. ACHD is not aware of private parties making direct
requests for relocation of utilities on public rights-of-way. However, if a private party were to
request relocation of a utility facility located on a public right-of-way for whatever reason, Idaho
Power would clearly be free to accept or reject that request. If Idaho Power were to voluntarily
choose to relocate its facilities, relocation costs would be governed by Section 6. ACHD's only
role would be to ensure that the relocation is in compliance with ACHD's permit standards that
govern design and location of the facilities. See Idaho Code §§ 40-210 and 40-1310(8). Idaho
Power would request a permit on behalf of the private party.
Simply stated, Section 6 addresses requests for relocation from private parties, regardless
of whether the relocation is on private property or on a public right of way. Section 10 addresses
Public Road Agencies' demands for utility relocation on public rights-of-way.
Idaho Power's proposed language in Section 10 addresses a third category of utility relocation
request - where a public road agency demands a utility relocation on a public right-of-way that
benefits a third party in whole or in part. Idaho Power's expressed concern is that Public Road
Agencies will demand utility relocations for the benefit of private parties without disclosing the
benefit to the private parties. Idaho Power asserted at page 3 of its Amended Motion to Accept
Conforming Rule H Section 10 Tariff that "the [Court's] Opinion 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 the public road right-of-way." To
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the contrary, the Idaho Supreme expressly addressed that issue. The Idaho Supreme Court held
that (1) a Public Road Agency's utility relocation demand is not a request for service from a
private party and (2) the Commission does not have authority to "require a third party to pay for
services that the third party did not request," even if the Commission "determined that a
relocation required by a Public Road Agency benefited a third party" in whole or in part. ACHD
v. IPUC, 253 P.3d at 682-83. The Court made clear that, if Idaho Power believes a third party
should pay for the Public Road Agencies' relocation demand, Idaho Power's remedy is in a
Court of law. Id. The Court also recognized that Commission agreed that this is Idaho Power's
remedy. ACHD v. IPUC, 253 P.3d at 683.
As the Idaho Supreme Court has made clear, Idaho Power and the Commission cannot
treat a Public Road Agency's relocation demand as if it were a request for service from a private
party. However, that is exactly what the revised version of Section 10 does. To the extent that
Section 10 would allow Idaho Power or the Commission to treat a Public Road Agency's utility
relocation demand as a request for relocation from a private party, it does not meet the objections
of the Court and will, once again, be set aside by the Idaho Supreme Court.
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
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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.
Section 10 did not purport to regulate utility relocation requests by private parties.
Relocation requests from private parties were already addressed in Section 6 of Rule H.
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, which asserted jurisdiction and authority
over the issue of relocation of utilities within the public rights-of-way. ACHD filed a Petition
for Reconsideration, requesting reconsideration and clarification of the Commission's approval
of Section 10. R. Vol. II, pp. 341-357. ACHD objected on grounds that Section 10 exceeded the
Commission's authority.
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
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extent reasonably possible." Id. at 659-660; 678. ACHD appealed that decision to the Idaho
Supreme Court.
B. The Idaho Supreme Court Appeal
ACHD's appeal to the Idaho Supreme Court asserted that Section 10 and Section 11 of
Rule H exceeded the authority granted to the Commission by the Legislature. 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. 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. Id. 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 (emphasis added). 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. 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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Id. at 683. 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. Id, 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 19 would not
apply.
ACHD v. IPUC, 253 P.3d at 683 (emphasis added).
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 § 40-210. 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 that the Commission, pursuant to Idaho Code § 61-
629, issue an order approving an amended version of Rule H Section 10 that purportedly
conformed with the Idaho Supreme Court's Opinion. 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.
D.Order No. 32532
ACHD moved for reconsideration of Order No. 32476. The Commission held a hearing
on April 19, 2012, at which oral argument was presented. The Commission then issued Order
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No. 32532, which requested additional briefing and affidavits addressing whether a private party
can request that Idaho Power relocate facilities located on public rights-of-way.
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 Court's decision directs the Commission to set aside
Sections 10 and 11. ACHD v. IPUC, 253 P.3d at 683. 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. Nor does the statute authorize Idaho Power or the Commission to
fundamentally re-write Section 10 to circumvent the Court's decision. The addition of
qualifying language in the second paragraph of Section 10 is an example of Idaho Power
attempting to add new provisions to Section 10 that are not a result of objections of the Idaho
Supreme Court and not even part of the original Tariff application.
Idaho Power has repeatedly suggested that ACHD cannot or should not object to the
proposed version of Section 10 because ACHD proposed certain language to Idaho Power.
Idaho Power's suggestion finds no support in Idaho Code § 61-629. That statute does not
authorize the Commission or affected parties to negotiate for an amended order that does not
meet the objections of the Idaho Supreme Court. Nor does it authorize the Commission to
fundamentally re-write the Tariff After the Idaho Supreme Court's decision, the Commission is
authorized only to alter or amend the order to meet the objections of the Court.
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B. Questions of ACHD's Authority or Harm to ACHD are Not Relevant
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
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"). As the Idaho Supreme Court held in
ACHD v. IPUC, "[t]he Idaho Public Utilities Commission has no authority other than that given
to it by the legislature." ACHD v. IPUC, 253 P.3d at 681. "It exercises a limited jurisdiction and
nothing is presumed in favor of its jurisdiction." Id.
The Idaho Supreme Court "set aside" Section 10 because no statute grants the
Commission "authority to determine whether the relocation, in whole or in part, is for the benefit
of a third party" and because the Commission does not have the 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. . . .Therefore, we set
aside Section 10." Id. at 682-83. The Idaho Supreme Court set aside Section 11 because the
Commission does not have authority to compel Public Road Agencies' compliance with Idaho
Code § 40-210. 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. We therefore set aside Section 11."). Thus, the issue before the Commission now
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is whether the proposed revisions to Section 10 meet the objections of the Court, i.e., whether
they fall within the authority granted to the Commission by the legislature.
Throughout these proceedings, the Commission and Idaho Power have attempted to shift
the focus from the absence of authority on the part of the Commission to whether Section 10
infringes on ACHD's authority or otherwise causes ACHD harm. For example, the first several
pages of the Commission's Order No. 32476 are spent discussing the assertion that "The Tariff
does not Infringe on ACHD's Authority or Jurisdiction." Idaho Power argued at the recent
reconsideration hearing that "ACHD has not pointed to any provision in section 10 that infringes
upon its power or its jurisdiction." See April 19, 2012 Transcript at p. 27, 11. 4-6.
The Commission and Idaho Power have similarly focused on their contention that Section
10 causes no harm to ACHD. See April 19, 2012 Transcript, p. 21, 1. 11-12 (Commissioner
Redford asking: ". . . . [W]hat is the interest of the Ada County Highway District generally. I
mean, why do you care?"); see also id at p. 27 (Idaho Power arguing that "it is unclear how
ACHD is harmed by the language that was approved in the Commission's Order issued last
month.")
The validity of Section 10 does not depend on whether it infringes on ACHD's authority
or otherwise harms ACHD. Instead, the relevant question is whether the Commission has the
authority asserted in Section 10 and whether the revised version of Section 10 meets the
objections of the Court.
C. Questions of Public Policy are Not Relevant to Whether the Revised Section 10
Meets the Objections of the Court under Idaho Code § 61-629
Discussion at the recent hearing indicated that the Commission believes that policy
reasons justify the revised Section 10 language authorizing the Commission to determine that
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utility relocation demands for public road agencies are really disguised requests from third
parties. For example, the Commission pointed to an example of where the Commission believes
the City of Nampa on one occasion demanded that Idaho Power relocate its facilities for what the
Commission believes may have been solely for the benefit of a private developer. See April 19,
2012 Transcript at p. 21, 1. 20 - p. 22, 1. 13. The Commission then asked "what is the
Commission to do to protect the ratepayers in those circumstances," and "why should the
customers of Idaho Power all throughout southern Idaho pay the share that is done for the benefit
of a third party?" Id. Those questions inappropriately raise policy concerns. The question now
before the Commission is not whether the revised Section 10 makes good policy. Under Idaho
Code § 61-629, the only relevant question is whether the Commission has authority to adopt the
revised Section 10 and whether the revised version of Section 10 meets the objections of the
Court.
D. The First Paragraph Of The Amended Section 10 Improperly Grants The
Commission Authority To Compel ACHD's Compliance With Idaho Code § 40-210
The first paragraph of Idaho Power's proposed Section 10 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
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Section 11 of the previously proposed Rule H because it purported to require "other parties,"
including ACHD to comply with Idaho Code § 40-210. ACHD v. IPUC, 253 P.3d at 683.
Specifically, the Court explained:
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.
Id. (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 § 40-2 10." Not
only is that language of Section 10 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.
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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
Code § 40-210, the Company will meet with the Public Road Agency as provided in Idaho Code
§ 40-210," 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 authority 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 compliance.
Idaho Power asserts that the mention of the Public Road Agencies' obligations under
Idaho Code § 40-2 10 is "innocuous" and "inconsequential," but Idaho Power's insistence on that
language suggests otherwise. Idaho Power's proposed language appears to be aimed at a result
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that, if a Public Road Agency does not meet with Idaho Power or otherwise comply with Idaho
Code § 40-210, Idaho Power would not have to pay the cost of relocating its facilities. ACHD's
compliance with Idaho Code § 40-210, however, is a legislative matter. The legislature has not
given the Commission authority to enforce Idaho Code § 40-2 10. Accordingly, any failure to
comply with Idaho Code § 40-210 must be addressed by a court, not by the Commission.
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. If the Commission believes it is necessary to refer to Idaho Code § 40-210,
Section 10 should simply state that "the Company will comply with Idaho Code § 40-210."
E. The Second Paragraph Of The Proposed Amended Section 10 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 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.
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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
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
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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 that 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
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."
F. The Third Paragraph Of The Amended Section 10 Is Inconsistent With The Idaho
Supreme Court's Opinion
Long before Idaho Power submitted its Application in 2008 seeking authority to modify
Rule H Tariff, Rule H authorized Idaho Power to charge a private party for utility relocation
costs requested by a private party. Specifically, Section 6 provides that "If an Applicant or
Additional Applicant requests a Relocation, Upgrade, Conversion or removal of company
facilities, the Applicant or Additional Applicant will pay a non-refundable charge equal to the
Cost Quote."
The purpose of Idaho Power's Application to add Section 10 was to address the
allocation of utility relocation costs where a Public Road Agency demands that Idaho Power
relocate its facilities. See Record at pp. 75-76 (testimony of Scott D. Sparks) ("The purpose of
the new section addressing relocations in public road rights-of-way is to ensure that a consistent
and defined funding methodology is adhered to when the Company is required to relocate
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distribution facilities at the request of a public roadway owner.") (emphasis added). Specifically,
Section 10, as proposed by Idaho Power would have allowed Idaho Power to determine what
portion of a Public Road Agency's utility relocation demand was for the benefit of a private
party and then charge that private beneficiary for that portion of the utility relocation costs. In
support of its Application to modify Rule H, Idaho Power submitted testimony from David R.
Lowry. See Record at pp. 83-84. Mr. Lowry testified that, on a few occasions, private parties
"have asked a city to make a relocation request to Idaho Power on their behalf and the city has
not disclosed that the developer is involved." Id.
Section 10 was proposed to remedy the issue described by Mr. Lowry. Under Section 10,
the Commission could determine the extent to which a Public Road Agency's utility demand
benefits a private party and require that private party to pay for services that the private party did
not request from Idaho Power.
Idaho Power and the Commission have consistently taken the position that a Public Road
Agency's utility relocation demand, to the extent that it benefits a private party, is really a
request for services from that private party. The Idaho Supreme Court, however, rejected that
argument and held that the Commission lacks authority to require a third party to pay for a utility
relocation demanded by a Public Road Agency.
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
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from Company if IPUC determined that a relocation required
by a Public Road Agency benefited the third party. iuç has
not pointed to any statute 2rantin2 it that authority.
ACHD v. IPUC, 253 P.3d at 682-83 (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.
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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
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. Specifically, the new version
of Section 10 approved by the Commission provides 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.
Just like the prior version of Section 10, this new version 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 could not have been more clear in
holding that that Commission has no such authority. See ACHD v. IPUC, 253 P.3d at 683. The
Commission has authority to charge a private party for services requested by that private party
(i.e., Section 6), but it does not have authority to treat a Public Road Agency's utility relocation
demand as if it were a request for service from a private party. Id. Accordingly, the new version
of Section 10 does not meet the objections of the Court and should be deleted.
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G. A Private Party's Request for Utility Relocation, Whether on Private Property or an
a Public Right-of-Way, Is Governed by Section 6, Not Section 10
In apparent recognition that its proposed language contradicts the Idaho Supreme Court's
opinion, Idaho Power has now suggested that the phrase "directly or indirectly through a Public
Road Agency" could be deleted from the third paragraph of Section 10. Deletion of that phrase,
however, would not make a difference because Section 10 would still impermissibly allow the
Commission to treat a Public Road Agency's demand for utility relocation as if it were a request
for service from a private party.
Rule H contains two sections addressing utility relocation -- Section 6 and Section 10.
Section 6 addresses utility relocation costs where a private party requests a utility relocation.
Under Section 6, the private party requesting utility relocation pays the cost of the utility
relocation. 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.").
By contrast, Section 10 addresses utility relocation demands from Public Road Agencies.
By its own terms, Section 10 applies only where a "Public Road Agency determines that the
Company's facilities must be relocated or removed." Indeed, the whole purpose of adding
Section 10 was to address the situation where the "Company is required to relocate distribution
facilities at the request of a public roadway owner." See Record, p. 75 (testimony of Scott D.
Sparks describing the "purpose of the new section"). Thus, any request for utility relocation
from a private party is governed by Section 6, not Section 10.
The Commission has asked the parties to submit evidence as to "whether a third party
may request relocation of Idaho Power's facilities that are located in a public roadway from
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Idaho Power." That question is addressed in the accompanying affidavit of Dorrell R. Hansen.
With all due respect, however, the question of whether a private party can request relocation of
utility facilities located on a public right-of-way is not relevant to the issue of whether Section 10
meets the objections of the Court. As explained above, if a private party requests relocation of
utility facilities, whether located on private property or on a public right-of-way, Section 6 would
apply. Under Section 6, the private party would be required to pay the utility relocation costs.
Section 10 would not be implicated because, as the Idaho Supreme Court has held, a Public Road
Agency's utility relocation demand is not a request for service from a private party.
Notably, a private party cannot require that Idaho Power relocate its facilities on a public
right-of-way. Unlike a Public Road Agency, a private party has no authority over a public right-
of-way. If a private party were to request relocation of a utility facility located on a public right-
of-way for whatever reason, Idaho Power would be free to accept or reject that request. If Idaho
Power were to voluntarily choose to relocate its facilities, relocation costs would be governed by
Section 6. Alternatively, any relocation requests could be governed by private contract. Given
that Idaho Power has no legal obligation to relocate its facilities located on public rights-of-way
at the request of a private party, Idaho Power would presumably require payment of any
relocation costs before actually performing any work. See April 19, 2012 Transcript, p. 29, 11.
14-18.
It is clear that Idaho Power is attempting to use Section 10 to circumvent the Idaho
Supreme Court's opinion. The Idaho Supreme Court held that (1) a Public Road Agency's utility
relocation demand is not a request for service from a private party and (2) the Commission does
not have authority to "require a third party to pay for services that the third party did not
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request," even if the commission "determined that a relocation required by a Public Road
Agency benefited a third party." ACHD v. IPUC, 253 P.3d at 682-83. Despite those holdings,
Idaho Power asserts that it can still use Section 10 to determine that a Public Road Agency's
utility relocation demand is, in whole or in part, really a request for service from a private party.
Idaho Power asserted the following at the recent hearing:
We also get demands to relocate from public road agencies and
sometimes it's not always clear who is who, but what the Company
is requesting here is that when a request has been made, you know,
once the facilities have been moved to satisfy the demands of the
public road agency that the Company determine whether or not a
request has been made to relocate facilities and then make a
determination based upon the facts if those costs should be
recovered from the party that made that request.
See April 19, 2012 Transcript at p. 29, 11. 3-12.
ACHD does not object to Idaho Power pursuing a legal claim in a court of law against a
third party to recover all or a portion of costs for relocation in the public right-of-way, which the
Court preserved. Also, ACHD's does not object that Idaho Power charges a third party for
relocation requests made directly by private parties. Indeed, Section 6 already provides that
private parties will pay for their own relocation requests, regardless of whether Idaho Power's
facility is located on private property of a public right-of-way. ACHD's objection is that, as
Idaho Power has indicated to be the case, Section 10 is used to treat a Public Road Agencies'
utility relocation demand as if it is a request for service from a private party.
If the Commission's and Idaho Power's only policy goal is to ensure that private parties
pay for utility relocation requests actually made by private parties - as opposed to relocation
demands from Public Road Agencies, it would be very easy to accomplish that goal. All the
Commission would have to do is incorporate the Section 6 language into Section 10.
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Specifically, the Commission could delete the third paragraph in its entirety and replace it with
the following:
As set forth in Section 6, if an Applicant or Additional Applicant
requests a Relocation of Company facilities within a public road
right-of-way, the Applicant or Additional Applicant will pay a
non-refundable charge equal to the Cost Quote.
IV. CONCLUSION
For the foregoing reasons, ACHD respectfully asks that the Commission reconsider
Order No. 32476. The Idaho Supreme Court did not issue a remand to the Commission to re-
write the Rule H Tariff, nor did it set aside only parts of Section 10 and Section 11. Instead, it
expressly "set aside" Section 10 and Section 11 in their entirety. ACHD's position is that the
Commission should delete Section 10 and Section 11 in their entirety as instructed by the Idaho
Supreme Court. However, if the Commission adopts an amended Rule 10, it must approve a
version of Section 10 that meets the objections of the Court. Attached hereto as exhibit A is a
proposed version of Section 10 and 11 that complies with Idaho Code § 61-629 in that it meets
the objections of the Court.
DATED THIS J8 day of May, 2012.
HAWLEY TROXELL ENNIS & HAWLEY LLP
BRJJ?
ffliiW Clark. ISBNo. 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 jfj day of May, 2012, I caused to be served a true
copy of the foregoing ADA COUNTY HIGHWAY DISTRICT'S BRIEF IN RESPONSE TO
ORDER NO. 32532 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, ID 83720-0074
Building Contractors Association of
Southwestern Idaho
Michael C. Creamer
GIVENS PURSLEY, LLP
601 West Bannock Street
P.O. Box 2720
Boise, ID 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, ID 83687
The Kroger Co.
Michael L. Kurtz
Kurt J. Boehm
BOEHM, KURTZ & LOWRY
36 East Seventh Street, Suite 1510
Cincinnati, OH 45202
Q U.S. Mail, Postage Prepaid
IZI Hand Delivered
O Overnight Mail
E-mail: we1don.stutzmanpuc.idaho.gov
O Telecopy
LZJ U.S. Mail, Postage Prepaid
• Hand Delivered
• Overnight Mail
E-mail: mccgivenspurs1ey.com
o Telecopy
IZI U.S. Mail, Postage Prepaid
• Hand Delivered
• Overnight Mail
E-mail: [e-mail]
[e-mail]
El Telecopy
EZI U.S. Mail, Postage Prepaid
• Hand Delivered
• Overnight Mail
EZI E-mail: [e-mail]
[e-mail] o Telecopy
Kevin Higgins EZI U.S. Mail, Postage Prepaid
ENERGY STRATEGIES, LLC 0 Hand Delivered
215 South State Street, Suite 200 0 Overnight Mail
Salt Lake City, UT 84111 IZI E-mail: khigginsenergystrat.com
0 Telecopy
ADA COUNTY HIGHWAY DISTRICT'S BRIEF IN RESPONSE TO ORDER
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Build Idaho Inc.
J. Frederick Mack
HOLLAND & HART LLP
U.S. Bank Plaza
101 South Capitol Boulevard, Suite 1400
P.O. Box 2527
Boise, ID 83701-2527
Lisa D. Nordstrom
Patrick A. Harrington
IDAHO POWER COMPANY
1221 West Idaho Street
P.O. Box 70
Boise, ID 83707
[Attorneys for Idaho Power Company]
0 U.S. Mail, Postage Prepaid
0 Hand Delivered
0 Overnight Mail
E-mail: [e-mail]
O Telecopy: 208.388.6936
U.S. Mail, Postage Prepaid
• Hand Delivered
• Overnight Mail
IZI E-mail: [e-mail]
pharringtonidahopower.com
0 Telecopy: 208.388.6936
D. John Ashby
ADA COUNTY HIGHWAY DISTRICT'S BRIEF IN RESPONSE TO ORDER
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RULE H
NEW SERVICE ATTACHMENTS
AtTeRAT N8
AF4D i 1UtlN LINE
INSTALLATIONS OR
10.Relocations in Public Road Rights-of-Way
The Company often locates its distribution facilities within state and local public road rights-of-
way under authority of Idaho Code § 62-705 (for locations outside Idaho city limits) and the
Company's city franchise agreements (for locations within Idaho city limits). 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.
As set forth in Section 6, if an Applicant or Additional Applicant requests a Relocation of
Company facilities within a public road right-of-way, the Applicant or Additional Applicant will
pay a non-refundable charge equal to the Cost Quote.
11.Existina Aareements
This rule shall not cancel existing agreements, including refund provisions, between the
Company and previous Applicants, or Additional Applicants. All Applications will be governed
and administered under the rule or schedule in effect at the time the Application was received
and dated by the Company.