The URL can be used to link to this page

Home My WebLink About20120518Build Idaho Brief.pdf(D 0 J. Frederick Mack, ISB # 1428 Scott D. Hess, ISB # 2897 HOLLAND & HART LLP Suite 1400, U.S. Bank Plaza 101 South Capitol Boulevard P.O. Box 2527 Boise, Idaho 83701-2527 Telephone: (208) 342-5000 Facsimile: (208) 343-8869 fmack@hollandhart. corn Attorneys for Build Idaho Inc. RECEIVED 2012 MAY 18 AMII:27 DAO P(0-J.— UTILiTIES COMMISSION 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 BUILD IDAHO INC'S BRIEF IN RESPONSE TO ORDER NO. 32532 Comes Now Build Idaho Inc. (hereinafter "Build Idaho"), by and through its attorneys of record, Holland & Hart LLP and submits this Brief in response to the Commission's Order No. 32532 ("Order"). Pursuant to the Order, the Commission requested that the parties submit evidence and briefing on the issue "whether a third party may request relocation of Idaho Power's facilities that are located in a public roadway from Idaho Power." Build Idaho joins in and supports the positions asserted by Ada County Highway District ("ACHD") in any briefs and accompanying Affidavits filed with the Commission's Order. BUILD IDAHO INC'S BRIEF IN RESPONSE TO ORDER NO. 32532 -1 The Commission's request demonstrates that the Commission is focused on the public policy issue rather than complying with Idaho Code 61-629, which clearly requires that the Commission is to enter an order to meet those objections of the Idaho Supreme Court's decision in ACHD v. IPUC, --Idaho--, 253 P.3d 678, 682 (2012) ("Decision"). Specifically, the Court held: (1) "We hold that the provisions of Section 10 discussed above exceed the authority of IPUC. Therefore, we set aside Section 10. I.C. Section 61-629." (2) "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. I.C. Section 61-629. (3) "We set aside Sections 10 and 11 of the amendments to Rule H approved in IPUC Order No. 30955." Id. at 683. The requirement of Idaho Code 61-629 is simple and the Commission post-Decision proceedings and Orders fail to enter an order consistent with the Court's clearly noted objections and instructions. Instead, the Commission is capitalizing on the Idaho Code 61-629 process as a fresh opportunity to take a second shot at drafting an order to legislate its public policy objectives. See April 19, 2012 Transcript at pp.22, 1.14-22. The Commission is not authorized to "alter or amend" the appeal order to the point of: (1) re-writing the order in a blatant effort to circumvent the Court's decision; (2) altering the order to significantly change provisions that were never in dispute on appeal; and (3) re-writing the order to address issues that the Court did not provide a satisfactory remedy.. The Court's Decision is also clear in addressing all the relocation situations. First, there is simply no question that and under well established precedent of the Idaho Supreme Court, where a Public Road Agency requests, a utility must relocate its facilities at its own expense. Section 10, paragraph 2 alters the Court's Decision and well established precedent, which was never an issue in the Commission proceedings or appeal to the Court. This conclusion was affirmed in BUILD IDAHO INC'S BRIEF IN RESPONSE TO ORDER NO. 32532-2 ACHD v. IPUC, --Idaho--, 253 P.3d 678, 682 (2012). The Supreme Court further confirmed that the IPUC does not have the authority to "require that a third party pay for services that the third party did not request." 253 P.3d at 683. Second, where it is a third party that requests that the utility move its facilities from a public roadway, the issue is controlled by Section 6 of Rule H, not by section 10. A third party has absolutely no right to compel the utility to move its facilities. See April 19, 2012 Transcript at pp.29, 1.13-23 .However, if the utility agrees to move its facilities at the request of the third party, then the utility has the right under Section 6 to compel the third party to pay specified costs. Third, if ACHD directs the utility to move its facilities, then the issue is controlled by ACHD v. IPUC, Supra in which the Supreme Court held that the IPUC does not have the authority to require payment from a third party even if facts exist to suggest that the relocation that is requested of and required by the Public Road Agency "benefited a third party." 253 P.3d at 682-83. However, the Supreme Court's Decision doesn't preclude Idaho Power from suing a third party to recover relocation costs. 253 P.3d at 683. ("None of the parties posited a legal theory upon which Company could recover from the third party, and we express no opinion on that issue.") While policy reasons may exist both in support of and in opposition to imposing costs upon a third party in such situations, those policy concerns raise issues for legislative scrutiny and do not fall within the authority of the Commission. Equally important, any attempt by the Commission at this point to review, analyze, adjudge and assert jurisdiction of the merits of such policy issues, would violate Idaho Code section 61-629, which authorizes the Commission to BUILD IDAHO INC'S BRIEF IN RESPONSE TO ORDER NO. 32532-3 enter an Order "to meet the objections of the [Supreme] court", but not to engage in legislative fact finding and policy analysis. Accordingly, Build Idaho responds to the inquiry from the Commission set forth in Order No. 32532 by noting that a third party may request that a utility relocate its facilities that are in a public roadway, and that if the request comes from the third party to the utility, the utility has authority to require payment of specified costs as set forth in Section 6. Where the request to move utility facilities comes from a Public Road Agency, even if the request benefits a third party, Section 10 and established Idaho law requires that the utility accomplish the relocation and bear the costs of such relocation. The Supreme Court's Decision does not preclude or impair the utility's ability to pursue any legal remedy in court against a third party to recover relocation costs. 253 P.3d at 683. RESPECTFULLY SUBMITTED. I rz f-- Datedthis ('7 day of May, 2012. HOLLAND & HART LLP Scott D. Hess, of the firm J. Frederick Mack, for the firm BUILD IDAHO INC'S BRIEF IN RESPONSE TO ORDER NO. 32532-4 CERTIFICATE OF SERVICE I hereby certify that on this I day of May 2012, I caused to be served a true and correct copy of the foregoing by the method indicated below, and addressed to 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 Kevin Higgins ENERGY STRATEGIES, LLC 215 South State Street, Suite 200 Salt Lake City, UT 84111 O U.S. Mail, Postage Prepaid IZI Hand Delivered El Overnight Mail E-mail: weldon.stutzmanpuc.idaho.gov O Telecopy IZI U.S. Mail, Postage Prepaid o Hand Delivered o Overnight Mail IZI E-mail: mcc@givenspursicy.com 0 Telecopy IZI U.S. Mail, Postage Prepaid o Hand Delivered o Overnight Mail E-mail: mjohnson@whitepeterson.com dvandervelde@whitepeterson.com o Telecopy IZI U.S. Mail, Postage Prepaid o Hand Delivered o Overnight Mail IZI E-mail: rnkurtz@BKLlawfirrn.com kboehm@BKLlawfirrn.com o Telecopy IZJ U.S. Mail, Postage Prepaid o Hand Delivered El Overnight Mail EZI E-mail: khigginsenergystrat.com El Telecopy BUILD IDAHO INC'S BRIEF IN RESPONSE TO ORDER NO. 32532-5 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 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] IZI U.S. Mail, Postage Prepaid O Hand Delivered o Overnight Mail IZI E-mail: mc1arkhawIeytroxe1I.com El Telecopy: 208.954-5210 o U.S. Mail, Postage Prepaid E] Hand Delivered o Overnight Mail El E-mail: lnordstrom@idahopower.com pharringtonidahopower.com o Telecopy: 208.388.6936 HOLLAND & HART LU' 5603564_2.DOC BUILD IDAHO INC'S BRIEF IN RESPONSE TO ORDER NO. 32532-6