20120615Brief in Response.pdf

212 JUN 15 PH 3:52
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:CQMMiR
Merlyn W. Clark, ISB No. 1026
D. John Ashby, ISB No. 7228
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: mclarkhawleytroxell.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 IDAHO
DISTRIBUTION LINE INSTALLATIONS. ) POWER COMPANY'S BRIEF ON
) RECONSIDERATION REGARDING
RELOCATION REQUESTS FROM
THIRD PARTIES
Pursuant to Order No. 32532, and in support of its Petition for Reconsideration, the Ada
County Highway District ("ACHD") submits the response to Idaho Power Company's Brief on
Reconsideration Regarding Relocation Request from Third Parties.
ADA COUNTY HIGHWAY DISTRICT'S BRIEF IN RESPONSE TO IDAHO
POWER COMPANY'S BRIEF ON RECONSIDERATION REGARDING
RELOCATION REQUESTS FROM THIRD PARTIES -1
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Idaho Power has submitted an affidavit from David R. Lowry, which cites to numerous
examples where private parties have made requests directly to Idaho Power to relocate its
facilities on public rights-of-way. Mr. Lowry further explains that, in each one of those projects,
the private party has made its relocation request and relocation payment directly to Idaho Power.
ACHD does not dispute these factual assertions, and ACHD objects to any attempt to turn this
matter into a fact-finding exercise. The Idaho Supreme Court did not remand this matter to the
Commission to develop a factual record. Instead, the Idaho Supreme Court set aside Section 10
of Rule H because it purported to authorize the Commission to require third parties to pay the
cost of utility relocations demanded by Public Road Agencies. Notwithstanding and without
waiving its objections, ACHD responds to Idaho Power's briefing and Mr. Lowry's affidavit
below.
In setting aside Section 10, 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." Ada County Highway Dist. v. Idaho Pub. Utils., 253 P.3d
675, 682-683 (Idaho 2011).
Idaho Code § 61-629 authorizes the Commission only to "alter or amend the order
appealed from to meet the objections of the court. . . ." Id. (emphasis added). The only question
before the Commission now is whether the revised Section 10 meets the objections of the Court.
The version of Section 10 approved by the Commission does not meet the objections of the
ADA COUNTY HIGHWAY DISTRICT'S BRIEF IN RESPONSE TO IDAHO
POWER COMPANY'S BRIEF ON RECONSIDERATION REGARDING
RELOCATION REQUESTS FROM THIRD PARTIES -2
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Court because it would still allow the Commission to "require a third party to pay for services
that the third party did not request from Company." ACHD v. IPUC, 253 P.3d at 682.
Specifically, Section 10 would allow the Commission to require a third party to pay for a Public
Road Agencies utility relocation demand anytime the Commission determines that such a
demand is really a request from a third party made "indirectly through a Public Road Agency."
II. ARGUMENT
Even before Idaho Power sought to add Section 10 to Rule H, Rule H provided for the
relocation of utilities at the request of private parties. Specifically, Section 6 of Rule H provides
that a private party requesting utility relocation must pay 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 implicitly recognized by Mr. Lowry's affidavit, Section 6 applies to relocation
requests from private parties, regardless of whether the relocation is on private property or on a
public right-of-way. Mr. Lowry's affidavit explains that, at the direct request of private parties,
Idaho Power has relocated its facilities on public rights-of-way on numerous occasions. Mr.
Lowry's affidavit describes projects going as far back as 2004, long before Idaho Power sought
to add Section 10 to Rule H. Accordingly, it is undisputed that Section 6 applies to a private
party's request that Idaho Power relocate its facilities on public rights of way.
This matter has never been about utility relocations at the direct request of private parties,
and the Idaho Supreme Court has recognized that the Commission "has the authority to
determine the costs that Company can charge a private person who requests services from
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POWER COMPANY'S BRIEF ON RECONSIDERATION REGARDING
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Company." See ACHD v. IPUC, 253 P.3d at 682. Instead, the crux of this matter is and always
has been whether the Commission has authority to allocate cost responsibly with regard to utility
relocation demands from Public Road Agencies. 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") (emphasis added).
The Idaho Suprme Court set aside Section 10 because it would have allowed the
Commission to require third parties to pay for relocation demands from Public Road Agencies,
demands that the Supreme Court held are "services that the third party did not request from the
Company." Id. Specifically, the Court explained:
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.
Id.
ACHD has no objection to Section 6 of Rule H, nor does it dispute that private parties
should pay the cost of relocation requests directly made by private parties, regardless of whether
the utilities are located on private property or pubic rights-of-way. However, Section 10, as
proposed by Idaho Power and as approved by the Commission, still goes beyond the
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POWER COMPANY'S BRIEF ON RECONSIDERATION REGARDING
RELOCATION REQUESTS FROM THIRD PARTIES -4
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Commission's authority. The version of Section 10 approved by the Commission purports to
give the Commission authority to allocate utility relocation costs where "one or more Private
Beneficiaries has, directly or indirectly through a Public Road Agency, requested that the
Company's facilities be relocated or removed." (Emphasis added).
The Idaho Supreme Court has 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," even "if IPUC determined that a relocation required by a Public Road Agency
benefited the third party." ACHD v. IPUC, 253 P.3d at 682. 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." ACHD v. IPUC, 253 P.3d at 682-83.
Idaho Code § 61-629 authorizes the Commission only to "alter or amend the order
appealed from to meet the objections of the court. . . ." Id. (emphasis added). The version of
Section 10 approved by the Commission does not meet the objections of the Court because it
would still allow the Commission to "require a third party to pay for services that the third party
did not request from Company." ACHD v. IPUC, 253 P.3d at 682. Specifically, Section 10
would allow the Commission to require a third party to pay for a Public Road Agency's utility
relocation demand anytime the Commission determines that such a demand is really a request
from a third party made "indirectly through a Public Road Agency."
Throughout these proceedings, the Commission has expressed a public policy concern
that Idaho Power should have a remedy to recover relocation costs incurred as a result of
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POWER COMPANY'S BRIEF ON RECONSIDERATION REGARDING
RELOCATION REQUESTS FROM THIRD PARTIES -5
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relocation requests from private parties. As an initial matter, Mr. Lowry's affidavit indicates that
the Commission's concern may not be justified. Idaho Power has no obligation to relocate its
facilities at the request of a private party. Any relocation at the request of a private party is
purely voluntary. As explained in Mr. Lowry's affidavit, private parties pay those relocation
costs directly to Idaho Power. As set forth in Section 6, the private party must pay the quote
given by Idaho Power, and Idaho Power presumably requires payment of the quote up front.
Thus, it seems highly unlikely that Idaho Power would ever relocate its facilities at the request of
a private party without being paid in full up front. More importantly, the Idaho Supreme Court
has already explained that Idaho Power's remedy is in a court of law in the event of disputes with
private parties. ACHD v. IPUC, 253 P.3d at 683
As explained previously by ACHD, the way to make Section 10 meet the objections of
the Court is to simply delete the third paragraph of Section 10. Idaho Power claims that the only
purpose of Section 10 is to allow Idaho Power to recover its relocation costs when a private party
requests relocation of utility facilities located on public rights-of-way. As set forth clearly in Mr.
Lowry's affidavit, Idaho Power already does recover those costs. Costs associated with any
utility relocation request made directly by a private party are already recoverable under Section
6. The only thing added by the third paragraph of Section 10 is the provision that the
Commission can treat a utility relocation demand from a Public Road Agency as if were an
"indirect" request from a third party. The Idaho Supreme Court has already held, however, that
the Commission has no such authority.
If the Commission's and Idaho Power's goal is to ensure that private parties pay for
utility relocation requests actually made by private parties - as opposed to relocation demands
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POWER COMPANY'S BRIEF ON RECONSIDERATION REGARDING
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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. 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.
III. CONCLUSION
ACHD respectfully asks that the Commission reconsider Order No. 32476. As set forth
above and in ACHD's prior briefing, the version of Section 10 approved by the Commission
violated Idaho Code § 61-629 because it does not meet the objections of the Court.
DATED THIS day of June, 2012.
HAWLEY TROXELL ENNIS & HAWLEY LLP
By
Merlyn W. Clark, ISB No. 1026
D. John Ashby, ISB No. 7228
Attorneys for Ada County Highway District
ADA COUNTY HIGHWAY DISTRICT'S BRIEF IN RESPONSE TO IDAHO
POWER COMPANY'S BRIEF ON RECONSIDERATION REGARDING
RELOCATION REQUESTS FROM THIRD PARTIES -7
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this day of June, 2012, I caused to be served a true
copy of the foregoing ADA COUNTY HIGHWAY DISTRICT'S BRIEF IN RESPONSE TO
IDAHO POWER COMPANY'S BRIEF ON RECONSIDERATION REGARDING
RELOCATION REQUESTS FROM THIRD PARTIES 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
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E-mail: [e-mail]
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E-mail: mccgivenspursIey.com
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dvanderveldewhitepeterson.com
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ADA COUNTY HIGHWAY DISTRICT'S BRIEF IN RESPONSE TO IDAHO
POWER COMPANY'S BRIEF ON RECONSIDERATION REGARDING
RELOCATION REQUESTS FROM THIRD PARTIES -8
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Kevin Higgins
ENERGY STRATEGIES, LLC
215 South State Street, Suite 200
Salt Lake City, UT 84111
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]
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pharringtonidahopower.com
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D. John Ashby
ADA COUNTY HIGHWAY DISTRICT'S BRIEF IN RESPONSE TO IDAHO
POWER COMPANY'S BRIEF ON RECONSIDERATION REGARDING
RELOCATION REQUESTS FROM THIRD PARTIES -9
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