20090911Joint Brief re Reconsideration.pdf

WHITE PETERSON
RECE.\\lED
WM.F.GIGRY,m
MATI A. JOHNSON
WILF. NiæOLS *
CHPHE S. NYE
ATIORNYS AT LAW
çp \ \ PM 2.\ 00WHI, PETERSN, GIGRAY, ROSSMA, Nn & Ni.,i~
CANON PAR AT TH IDAHO CER UQ pI \'6UC. n ci
5700E.FRINRD.,SUI200 . \OA,Eb, rOMM\SSltJh
NAMA, IDAHO 83687-7901 ui\Ul\i:.. v
TEL [phone]
FAX [phone]
EMA: mjohnsonl¡hitepeterson.com
PH A. PEN
TODD A. ROSSMA
DAviF. VANERVELE**TECER WHI***
* Al adtt in OR
* * Al ad in NV
*** Al adtt in W A
September 11, 2009
Via HA DELIVRY
IDAHO PUBLIC UTILITIES COMMISSION
P. O. Box 83720
Boise, il 83720-0074
RE: Case No. IPC-E-08-22:
In the Mater of the Applicatn of Idaho Power Company for Authori to
Modif it Rule H Line Extension Tari Related to New Service Attachments
and Distrbutn Line Installations
Intervenors: (1) Association of Canyon County Highway Districts; and
(2) City of Nampa
Dear Commssion:
Enclosures:
1. (origial + 7 copies) Joint Brief on Reconsideration by Nampa and ACCHD.
Enclosed for filing with the IPUC, please fid Intervenors Nampa and ACCHD's Joint
Brief on Reconsideration in connection with the above referenced matter.
Pleas contat ths offce if you have any questions. Th you.
Sincerely,~so
LeAn Hembree
Legal Assistant to Matthew A. Johnson
Encls.
Cc: counl of record
Clients
W: \ WorJram\1da Power - Rule H chage \Lttr to ¡PUC re filing Joint Brf Reconidr 09-11-09 lhdo
"
RECEI D
2009 SEP I I PM 2: 00
Davis F . VanderVelde
Mattew A. Johnson
WHITE PETERSON GIGRA Y ROSSMAN
NYE & NICHOLS, P.A.
5700 East Franin Road, Suite 200
Nampa, Idaho 83687
Telephone: [phone]
Facsimile: [phone]
ISB Nos.: 7314,7789
dvandervelde~whitepeterson. com
mjohnson~whitepeterson. com
Attorneys for Intervenors
City of Nampa
Association of Canyon County Highway Districts
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION
OF IDAHO POWER COMPANY FOR
AUTHORITY TO MODIFY ITS RULE H
LINE EXTENSION TARIFF RELATED TO
NEW SERVICE ATTACHMENTS AND
DISTRIBUTION LINE INSTALLATIONS
CASE NO. IPC-E-08-22)
)
)
)
)
)
JOINT BRIEF ON
RECONSIDERATION
The CITY OF NAMPA (Nampa) and the ASSOCIATION OF CANYON COUNTY
HIGHWA Y DISTRICTS (ACCHD) hereby submit the following brief on reconsideration. This
brief is submitted in accordance with Interlocutory Order No. 30883, dated August 19, 2009, in
the above-captioned matter.
JOINT BRIEF ON RECONSIDERA nON BY NAMPA AND ACCHD . i
ORIGINAL
Nampa and ACCHD are separate intervenors in ths matter, but share similar concerns in
their roles as public road agencies.1,2 Both paries are represented by the same legal counsel.
Additionally the issues raised by each are suffciently similar such that this brief is submitted
jointly in the interests of time and for the convenience of the Commission and paries.
I. PUBLIC ROAD AGENCIES HAVE EXCLUSIVE AUTHORITY OVER
HIGHWAYS AND RIGHT OF WAYS.
Exclusive authority over highways within city limits lies with the municipality.
Exclusive authority over rights-of-way in highway districts lies with the highway distrct
commissioners. This point was set forth in the original comments of Nampa and ACCHD, as
well as the comments and petition for reconsideration of the Ada County Highway Distrct
(ACHD).
Municipalities and highway districts, as public road agencies, hold these right-of-way
lands in trst for the public. Public road agencies are required to protect the public use. State ex
rei. Rich v. Idaho Power Co., 81 Idaho 487, 346 P.2d 596 (1959). As such, muncipalities have
the exclusive authority to determine that relocation of utilty facilties is necessar so as not to
incommode public use. This includes the power to require relocation at the utilty's cost.
Utilty use of public right-of-ways is permissive and subject to the authority of the public
road agency. "(The) permissive use of the public thoroughfares is subordinate to the paramount
use thereof by the public." Id. at 498. The public road agencies' authority over the paramount
1 As a municipality, Nampa has the power and responsibilty to supervise and control city
highways under Idaho Code § 50-313 and § 50-314. Nampa also has authority over utilty
transmission systems on municipal land under Idaho Code § 50-328.2 Under Idao Code § 40-1310, the Canyon County highway districts have "exclusive general
supervision and jurisdiction over all highways and public rights-of-way within their highway
system."
JOINT BRIEF ON RECONSIDERA nON BY NAMPA AND ACCHD - 2
public use necessarily includes the authority to determine that a utilty relocate at its own cost.
Of course the authority of the public road agencies also allows that these agencies could
pay for portions of the relocation cost or negotiate agreements for apportionment of relocation
costs. ACHD has pursued such an approach with Idaho Power in ACHD's adoption, under
ACHD's own authority, of Resolution 330. Public road agencies may also negotiate utilty
relocation costs on a case-by-case basis with utilities and developers. Municipalities may
approach relocation cost apportionment under the muncipality's authority in formulating a
franchise agreement. However, these all would fall under the exclusive supervisory authority of
public road agencies over utilty use of the public right-of-way. Such agreements must be
worked out with the public road agencies, not imposed by the IPUC.
II. THE ¡PUC DOES NOT HAVE JURISIDICTION TO APPROVE SECTION 10 OF
RULEH.
IPUC's jurisdiction is limited to that expressly granted by the legislatue. Washington
Water Power Co. v. Kootenai Environmental Allance, 99 Idaho 875, 591 P.2d 122 (1979). The
IPUC is not granted authority to determine what mayor may not incommode the public use as it
pertains to muncipal land and highways. It is the fuction and duty of a municipality to
determine whether the public use and safety is protected by such actions as road-widening,
sidewalk development, or installation of a tuing lane. The Public Utilties Act "does not
contain any provision diminishing or transferrng any of the powers and duties of the
municipality to control and maintain its streets and alleys." Vilage of Lapwai v. Allgier, 78
Idaho 124, 129, 299 P.2d 475, 478 (1956). Lapwai found that authority over municipal lands
remains with the municipality and that the IPUC has no authority in regard to a municipality
requiring utilty relocation. Lapwai also held that IPUC consent to such relocation is not
JOINT BRIEF ON RECONSIDERA nON BY NAMPA AND ACCHD - 3
required. The IPUC is not given authority to regulate utilty relocation or to tae on the role of
determining when utility system location may, or may not, impair the public use.
Similarly the Public Utilties Act does not give the IPUC the jurisdiction to take utilty
relocation costs and impose the duty to pay them on public road agencies, governent entities,
developers, or other thrd paries alleged to have specially benefitted from the improvements.
Idaho Code § 67-205 provides no express or implied authority for utilties to charge thrd paries
for relocations. If the governng public road agency determines that relocation is necessar to
support the public use and safety, then the utilty must relocate at its own cost.
Furhermore, the thrd-pary beneficiar cost apportionment proposal of Section 10
overlooks that the public benefits from such road improvements, even if paid for in portion by a
third pary. Idaho Power suggests that "Idaho Power customers in Pocatello do not benefit from
roadway improvements for a new shopping center in Nampa" but that such customers bear a
portion of the relocation cost. Idaho Power Company's Answer to Petitions for Reconsideration,
page 16. However, a customer in Pocatello does benefit. That Pocatello customer pays a lower
utilty rate because Idaho Power is able to make permissive use of public rights-of-way, rather
than having to acquire its own private rights-of-way. Additionally, the Pocatello customer
benefits when on a futue visit to Nampa he or she is not stuck in trafc because that road was
widened and a traffc light installed. The Pocatello customer benefits when traveling more safely
on a highway through Canyon County because the highway district negotiated with developers
for contributions to more quickly make certain improvements that improve trafc flow. There
are always some members of the public who may see a more immediate or more frequent
benefit, but the public road agencies requests for relocation are always to benefit the public use
generally. If Idaho Power has concerns that in certain situations there has been "inappropriate
JOINT BRIEF ON RECONSIDERA nON BY NAMPA AND ACCHD - 4
cost shifting" then Idaho Power needs to work to resolve such with the public road agencies. If
absolutely necessar, Idaho Power may decide to pursue a remedy in the cours. However, it is
not the role of the IPUC, or withn the jursdiction or expertise of the IPUC, to begin second-
guessing the motivation behind public road agency requests for relocation.
III. THE REVISED DEFINITION OF THIRD PARTY BENEFICIARES IS TOO
BROAD.
In the initial comments by both Nampa and ACCHD, concern was raised about the
definition of "third pary beneficiaries," paricularly the inclusion of location improvement
districts and other government entities. Idaho Power's clarfication on the definition, including
that the intent is this apply to all local improvement districts under Idao Code Title 50, Chapter
17, does not assuage the intervenors' concerns.
Local governent entities often cooperate and work together on projects. For instance a
municipality and a highway district may coordinate on a muncipal water line improvement
coupled with a highway district widening project. The highway district widening project would
require that an Idaho Power line be relocated. However, under Section 10, the municipality will
have contributed to the widening project in conjunction with repaving required by its water line
improvement and therefore the municipality would be required to pay Idaho Power relocation
costs. This does not make sense.
Alternatively a municipality or highway district may work with a neighborhood to form a
local improvement distrct for the improvement of water and/or sewer facilties or for the
improvement of sidewalks, curbs, and gutters. The local improvement distrct is a financing
mechanism available to the local governent body so that such improvements may be made
sooner than if relying on general fuds. The local improvements may have nothing to do with
JOINT BRIEF ON RECONSIDERA nON BY NAMPA AND ACCHD - 5
, .
electric utilty lines. However, due to the improvements, reconfiguration of the road and right-of-
way may be necessar, thereby requiring relocation of electric utility lines so as not to interfere
with the public use and so as to protect the public safety.
Section 10 and its treatment of third pary beneficiaries would interfere with the abilty of
the public road agencies to cooperate with other governent entities, with neighborhoods, and
with developments. Rather than being in position to negotiate and cooperate between paries,
Section 10 imposes a scheme where now these entities are in competition with each other to
minimize their contribution to the project and therefore avoid Idaho Power imposing relocation
costs. This is another example of how Section 10 as proposed interferes with the exclusive
authority of the public road agencies and impedes their ability to negotiate appropriately with all
paries.
Rule H should be limited and retued to its original definition of local improvement
districts, which contemplates only LIDs under Idaho Code § 50-2503 which are specifically
related to electrc utilty line installation and alteration.
iv. SECTION 10 is UNCONSTITUTIONAL AND is CONTRARY TO THE
COMMON LAW.
Intervenors, along with ACHD, have presented constitutional and common law concerns
with Section 10 of Rule H. See Comments of Intervenor City of Nampa, Comments of Intervenor
ACCHD, and Comments of ACHD. See also Petition for Reconsideration/Clarifcation by
ACHD. Nampa and ACCHD hereby reaffirm those arguments and urge the IPUC to reconsider
and delete Section 10 from Rule H.
JOINT BRIEF ON RECONSIDERA nON BY NAMPA AND ACCHD - 6
. I.".
V. CONCLUSION
Section 10 of Rule H, as proposed, is in direct confict with the exclusive jurisdiction of
public road agencies over their rights-of-way. Rather than seek to cooperate with the agencies to
come to an agreement under their exclusive authority, Section 10 usurs that authority to tr and
force a one-size- fits-all approach on the agencies. The proposed rule interferes with the abilty of
public road agencies to pursue necessar road improvements. It places the IPUC in an
undesirable position of second-guessing relocation requests. Section 10 also places the IPUC in a
position outside its jurisdiction and expertise. The proposed Section 10 is also in violation of the
Idaho constitution and in conflict with the common law. For these reasons, Nampa and the
ACCHD recommend reconsideration of Order 30853.
DATED ths 11TH day of September, 2009.
WHITE PETERSON
~DarVelde
Mattew A. Johnson
Attorneys for the Association of Canyon
County Highway Districts
Attorneys for the City of Nampa
JOINT BRIEF ON RECONSIDERATION BY NAMPA AND ACCHD-7
. .
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on the 11TH day of September, 2009, a true and correct
copy of the above and foregoing JOINT BRIEF ON RECONSIDERATION BY NAMA AND
ACCHD was served upon the following by the method indicated below:
Lisa D. Nordstrom øBarton L. Kline 0Scott Sparks 0Gregory W. Said 0
IDAHO POWER COMPANY øP.O. Box 70 øBoise, ID 83707-0700 ø
ø
Kristine A. Sasser øDeputy Attorney General 0
IDAHO PUBLIC UTILITIES 0COMMISSION 0
472 W. Washington (83702) ø
P. O. Box 83720
Boise, ID 83720-0074
Michael C. Creamer øGiven Pursley LLP 0
601 W. Bannock St. 0Boise, ID 83702 0Attorneysfor BUILDING ø
CONTRACTORS ASSOCIATION OF
SOUTHWESTERN IDAHO
Michael Kurt, Esq. øKurt J. Boehm, Esq. 0Boehm, Kurt & Lowr 0
36 E. Seventh Street, Suite 1510 0Cincinnati, OH 45202 ø
Attorneysfor The Kroger Co. ø
Kevin Higgins
Energy Strategies, LLC
Parkside Towers
215 S. State Street, Suite 200
Salt Lake City, UT 84111
Attorneys for The Kroger Co.
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W: \ WorkWlNampa\1daho Power - Rule H change\1PUC FilingsVoint Nampa - ACCHD - ¡PC Rule H reconsideration brief 09-11-09.doc
JOINT BRIEF ON RECONSIDERA nON BY NAMPA AND ACCHD - 8