20100524ACHD Brief.pdf

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IN THE SUPREME COURT OF THE STATE OF IDAHOiaInttAY 24 AM 8: 29
to' .AH,' 0 P' ',Ai It'".. . VWLIV
UTILITIES COMMISSION
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IN THE MATTER OF THE APPLICATION
OF IDAHO POWER COMPANY TO
MODIFY ITS RULE H LINE EXTENSION
TARIFF RELATED TO NEW SERVICE
ATTACHMENTS AND DISTRIBUTION
LINE INSTALLATIONS.
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IDAHO PUBLIC UTILITIES COMMISSION). )
Respondent on Appeal, )
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Respondent/espondent on AppeaL. ~
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ADA COUNTY HIGHWAY DISTRICT,
Petitioner/ Appeii~t,
vs.
IDAHO POWER COMPANY,
Supreme Cour Docket No. 37294-2010
Idaho Public Utilities Commission No.
IPC-E-08-22
APPELLANT ACHD'S BRIEF
Appeal from the Idaho Public Utilities Commission
Merlyn W. Clark, ISB NO.1 026
D. John Ashby, ISB No. 7228
HAWLEY TROXELL ENNIS & HAWLEY LLP
877 Main Street, Suite 1000
P.O. Box 1617
Boise, ID 83701-1617
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Attorneys for Petitioner/ Appell~t Ada County
Highway District
APPELLANT ACHD'S BRIEF
Kristine Sasser
IDAHO PUBLIC UTILITIES COMMISSION
P.O. Box 83720
Boise, ID 83720-0074
Attorneys for Respondent on Appeal Idaho
Public Utilities Commission
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Lisa Nordstrom
Baron L. Kline
Scott Sparks
Gregory W. Said
IDAHO POWER COMPANY
P.O. Box 70
Boise, Idaho 83707-0070
Attorneys for Respondent/espondent on
Appeal Idaho Power Company
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TABLE OF CONTENTS
Page
i. STATEMENT OF THE CASE ............................................................................................... 1
A. Nature Of The Case ......................................................................................... 1
B. Statement Of Facts And Course Of Proceedings ............................................ 1
1. ACHD And Other Highway Districts................ ........ ............ ..... ......... 1
2.Utility Relocation And The Common Law Rule................................. 2
3.ACHD's Resolution 330...................................................................... 4
4.Idaho Power's Rule H Tariff.............................................................. 5
5. IPUC Order...............................................................................;..........7
6. This Appeal......................................................... ..... ......... ........ ........ 10
II. ISSUES PRESENTED ON APPEAL.................................................................................. 10
III. STANDARD OF REVIEW................................................................................................ 11
IV. ARGUMENT .....................................................................................................................12
A. Public Road Agencies Have Exclusive Jurisdiction Over Public
Highways, Public Streets And Public Rights-Of-Way..... ................ ......... .... 12
Consistent With Its Exclusive Jurisdiction Over Public Rights-Of-
Way And Its Statutory Authority To Pass Resolutions And
Establish Regulations, ACHD Regulates Relocation Of Utilities
Within Ada County Through ACHD Resolution 330................................... 14
C. The IPUC's Authority Is Limited.................................................................. 16
B.
D. This Court Has Not Hesitated To Invalidate Orders Of The IPUC
Where The IPUC Has Attempted To Act Outside OfIts
Traditional Rate-Making Function Or Without Express Statutory
Authority........................................................................................................ 17
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E. Section 10 Of Rule H Usurs The Public Road Agencies'
Exclusive Jursdiction Over Public Rights-Of-Way............................. ......... 19
1. Public Road Agencies Have Exclusive Jurisdiction Over
Public Rights-of Way ........................................................................ 19
2. The IPUC Has No Statutory Authority To Regulate Utility
Relocation On Public Rights-Of-Way............................................... 21
3.Concurent Jurisdiction..................................................................... 23
F. Like Section 10, The New Section 11 Of Rule H Also Usurs The
Public Road Agencies' Exclusive Jurisdiction Over Public
Rights-Of- Way And Is An Unauthorized Attempt To Exercise
Jurisdiction Over Public Road Agencies .............. .............. ........................... 27
G. Section 10 Of Rule H Is An Improper Attempt To Abrogate The
Common Law Rule.............................................. .......................................... 29
V. CONCLUSION.................................................................................................................... 31
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TABLE OF AUTHORITIES
Page
Cases
Alpert v. Boise Water Corporation,
118 Idaho 136, 795P.2d 298 (1990) .............. ....................................................... ..............17, 21
Application of Boise Water Corp. to Revise and Increase Rates Chargedfor Water Service,
128 Idaho 534, 916 P.2d 1259 (1996) .......................................................................................18
Idaho Power Co. v. Idaho Public Utilities Comm 'n,
99 Idaho 374,582 P.2d 720 (1978) .....................................................................................11, 18
In re Application of Hayden Pines Water Co.,
111 Idaho 331, 723 P.2d 875 (1986).........................................................................................11
Matter of Strand,
111 Idaho 341, 723 P.2d 885 (1986) .........................................................................................17
Mountain States TeL. & TeL. Co. v. Boise Redevelopment Agency,
101 Idaho 30, 607 P.2d 1084 (1980) ............................:..............................................3,4,29,30
State ex rei Rich v. Idaho Power Co.,
81 Idaho 487,346 P.2d 596 (1959) ...................................................................................2,3,29
State v. Poynter,
70 Idaho 438, 220 P.2d 386 (1950) ...........................................................................................25
Us. West Communications, Inc. v. City of Longmont,
948 P .2d 509 (Colo. 1997) ...... ..................................................................................................30
United States v. Utah Power & Light Co.,
98 Idaho 665, 570 P.2d 1353 (1977)...................................................................................17, 18
Vilage of Lapwai v. Allgier,
78 Idaho 124,299 P.2d 475 (1956) .....................................................................................13,23
Washington Water Power Co. v. Kootenai Envtl. Allance,
99 Idaho 875, 591 P.2d 122 (1979) ........................................................................ 1 1, 18,22,31
Worley Highway District v. Kootenai County,
104 Idaho 833, 663 P.2d 1135 (Ct. App. 1983) ........................................................................13
Other Authorities
Ada County Highway District Resolution 330.......................................................................passim
Idaho Code § 40-1310 .........................................................................................................2,16,19
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Idaho Code § 40-1310(1)............;............................................................................................12,25
Idaho Code § 40-131 0(8)........................................................................................................passim
Idaho Code § 40-1312 .................................................................................................12, 16, 19,20
Idaho Code§ 40-1401 .....................................................................................................................2
Idaho Code § 40-1406 ................................................................................. ......... .................... .2, 26
Idaho Code § 40-201 .......................................................................................................................1
Idaho Code § 40-21 0 .........................................................................................................27,28,29
Idaho Code § 40-300 et seq. ..........................................................................................................15
Idaho Code § 40-301 et seq .............................................................................................................1
Idaho Code § 40-501 et seq. ............................................................................................................1
Idaho Code § 61-332A ..................................................................................................................21
Idaho Code § 61-502 ...................................................................................................17,18,21,22
Idaho Code § 61-503 ...................................................................................................17, 18,21,22
Idaho Code § 61-629 .....................................................................................................................11
Idaho Code § 62-705 ......................... ..............................................................................................2
Idaho Code § 67-5215(a)...............................................................................................................11
Idaho Constitution, Article 7 § 17 ...................................................................................... ...... ....... 8
Idaho Constitution, Article 8 § 2 .....................................................................................................8
Idaho Constitution, Article V, § 9 ............................. ...................................... ...... .............. .......... 11
Idaho Power's Rule H Tariff ..................................................................................................passim
Idaho Power's Rule H Tarrif, Section 10................................................................................passim
Idaho Power's Rule H Tarrif, Section 11.............................................................................9,27,28
Idaho Public Utilities Commission Order No. 30853................................................................7, 10
Idaho Public Utilities Commission Order No. 30883......................................................................8
Idaho Public Utilities Commission Order No. 30955......................................................................8
IOAPA 39.03.43 ........................................................................................................................5, 15
Public Utility Regulatory Policies Act of 1978 ........... ..................................................................18
Supreme Court Docket No. 37293-2010 .......................................................................................1 0
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I.
STATEMENT OF THE CASE
A. Nature Of The Case
This case is about an attempt by Idaho Power and the Idaho Public Utilities Commission
("IPUC") to usurp the Ada County Highway Distrct's ("ACHD") jurisdiction over the public
rights-of-way in Ada County. ACHD has been statutorily gr~ted "exclusive" jurisdiction over
the public rights-of-way in Ada County. ACHD has exercised that exclusive jursdiction by
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adopting regulations that govern the relocation of utility lines on public rights-of-way. Despite
the absence of statutory authority, the IPUC has approved a proposed modification to Idaho
Power's Rule H Tariff, which now purports to regulate the relocation of utility lines on public
rights-of-way. The IPUC's order approving the modification ofIdaho Power's Rule H Tariff
should be set aside because it interferes with ACHD's exclusive jurisdiction over public rights-
of-way.
B. Statement Of Facts And Course Of Proceedings
..J 1.ACHD And Other Highway Districts
The Idaho Code provides for several highway ~d public rights-of-way systems
throughout the state of Idaho and under the jurisdiction of various state ~d local agencies. See
,j Idaho Code § 40-201. First, the interstate highway system falls within the jursdiction of the
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Idaho Transportation Deparment ("ITD") and the Idaho Transportation Board. Id. lTD is
gr~ted broad jurisdiction over the state highway system. See Idaho Code § 40-301 et seq ~d
§ 40-501 et seq. Second, there is a local system of highways ~d rights-of-way. See I.C. § 40-
201. The local highways ~d rights-of-way fall within the jurisdiction of county and/or city
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highway districts. The broad ~d exclusive jurisdiction given to highway districts over highways
~d public rights-of-way within their respective districts is set forth in Idaho Code § 40-1310.
lTD ~d the various highway districts, including ACHD, wil be referred to hereinafter as the
"Public Road Agencies."
ACHD is a single, county-wide highway district, which was formed by vote of the
citizens of Ada County in 1972. R., VoL. III, p. 494. As a county-wide highway district, ACHD
is gr~ted the powers and duties set forth in Chapters 13 and 14 of Title 40 of the Idaho Code,
including the authority to pass ordin~ces, rules ~d regulations with regard to the public rights-
of-way within Ada County. See i.e. § 40-1406. Upon the formation of ACHD, the road
deparents of Ada County, the City of Boise, Garden City, the City of Meridian, ~d other
incorporated cities within Ada County were disb~ded, and the road systems were all tr~sferred
to ACHD. R., VoL. III, p: 494; see also i.e. §§ 40-1401, 40-1406.
2. Utilty Relocation And The Common Law Rule
Public utilities commonly place their utility lines upon, along, over or under highways
~d public rights-of-way. See Idaho Code § 62-705 (authorizing the placement of utility lines on
public roads). While utilities may place their utility lines upon, along, over or under public
rights-of-way, the Idaho Legislature has limited the use by utilities of the public rights-of-way
"as not to incommode the public use" thereof. Id.
This Cour has long recognized what is known as the "common law rule" with regard to a
utility's use of public rights-of way. See State ex reI. Rich v. Idaho Power Co., 81 Idaho 487,
498,346 P.2d 596,601 (1959). Under the common law rule, a utility's use ofa public right-of-
way is permissive and does not vest the utility with any property or contract right in a public
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right-of-way. Id; see also Mountain States TeL. & TeL. Co. v. Boise Redevelopment Agency, 101
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Idaho 30, 32, 607 P.2d 1084,1086 (1980). Thus, Public Road Agencies may require a utilty to
relocate its utility line on a public right-of-way. For example, when a Public Road Agency
expands a road from two l~es to four lanes, it is common for utilities to have to relocate their
utility lines to make room for the road expansion. As this Court explained in State ex rei. Rich v.
Idaho Power:
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In ~y case where the facilities incommode the public use of any
highway, the people, under the Constitution ~d the legislative
enactment, reserve the right to require the utilities to relocate their
facilities so as not to incommode such public use. Utilities place
facilities thereon under such constitutional ~d legislative
restrction with full knowledge of such limitation. It follows that
the right of utilities to the use of public thoroughfares is not ~d
cannot be regarded as a perm~ent property right.
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81 Idaho at 498.
Under the common law rule, a utility is required to relocate its utility line whenever it
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"incommode ( s) the public use" of a public right-of-way. State ex rei. Rich v. Idaho Power, 81
Idaho at 498 (quoting Idaho Code § 62-705). This Court has interpreted that phrase as broadly
authorizing the governmental body with jursdiction over the rights of way to "require removal
of a (utility line), which in ~ywise interferes with the public use of streets and highways." Id at
¡ 501; see also id at 499 (explaining that a utility must relocate its utility line where "it has become
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necessary to change the location of the (utility line) so as to accommodate them to the new
public work").
The common law rule not only requires a utility to relocate its utility line at the request of
a highway distrct, but it also requires the utility to pay the cost of relocation. Id at 501 ("Under
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the common law a utility, placing its facilities along streets ~d highways, gains no property
right and upon dem~d must move its facilities at its expense.") (emphasis added); see also
Mountain States Tel. & TeL. Co. v. Boise Redevelopment Agency, 101 Idaho at 32 ("(U)tilities
bear the expense of relocating their facilities in public rights of way when necessary to make way
for proper governmental use of the streets.").
3. ACHD's Resolution 330
ACHD has been statutorily gr~ted "full power to '" establish use standards, pass
resolutions and establish regulations" with regard to the public rights-of-way within its
jurisdiction. See I.C. § 40-13lO(8).Pursu~t to this statutory authority, ACHD adopted
Resolution 330, which establishes regulations for utility and sewer relocations within the public
rights-of-way under the jurisdiction of ACHD. R., VoL. III, pp. 482-492. Resolution 330, which
reflects the work of representatives of ACHD, the Boise City Deparment of Public Works ~d
various utilty organizations, was adopted on September 25, 1986 ~d has now been in effect for
over 23 years.
Resolution 330 addresses utility ~d sewer relocations in a comprehensive fashion,
including assignment of fin~cial responsibility ~d establishment of operational procedures
under various scenarios. For example, with regard to utility and sewer relocations required
because improvements sponsored or funded by ACHD are being undertaken within the public
rights-of-way, Resolution 330 provides that "all relocation costs shall be the responsibility of the
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to utility or sewer relocations required because of improvements being undertaken within the
public rights-of way that are partially fuded by ACHD ~d parially funded by ~other
individual, firm or entity, Resolution 330 provides that "the utility ~d/or sewer comp~y shall
be responsible for that portion of the relocation costs that equals the percentage of (ACHD's)
paricipation in the right-of-way improvement costs" and that the remaining costs "shall be the
responsibility of the individual, firm or entity that provides funds for the bal~ce of the right-of-
way improvement costs." ld at p. 487.
Resolution 330 is much broader than just governing who pays for utility relocations.
Rather, Resolution 330 also contains detailed regulations regarding notice given to affected
paries, coordination meetings that utility and sewer comp~ies are expected to attend ~d
deadlines by which utility or sewer comp~ies shall provide ACHD with engineering pl~s.
Resolution 330 requires utility and/or sewer comp~ies to "coordinate their activities in an
attempt to eliminate duplication of roadway restoration work." Id. at p. 486. Resolution 330
provides also that "all utility or sewer relocations shall be completed prior to the anticipated date
of commencement of work on the right-of-way improvement by (ACHD)." Id.
lTD has regulated utility relocation on the interstate highway system within its
jurisdiction. See IDAPA 39.03.43. Other highway districts throughout the state are authorized
to regulate relocation of utility lines within their respective highway districts. See I.C. § 40-
1310(8).
4.Idaho Power's Rule H Tariff
On October 30, 2008, Idaho Power filed an Application with the IPUC seeking authority
to modify its line extension tarff commonly referred to as the "Rule H" Tarff, which generally
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sets forth Idaho Power's rates ~d charges for certain services and regulates new service
attchment ~d distribution line installations or alterations. R., VoL. I, pp. 1-56. Prior to that
time, Rule H did not address utility relocations on public rights-of-way, leaving the regulation of
utility relocation on public rights-of-way to Resolution 330 and regulations enacted by other
Public Road Agencies in their respective jurisdictions. In connection with the October 30, 2008
Application to IPUC, however, Idaho Power sought to add a new section - "Section 10" -
regulating utility relocation on public rights-of-way. R., VoL. I, pp. 22-23.
Notably, while not as exhaustive as Resolution 330, the proposed addition of Section 10
to Rule H was largely patterned after Resolution 330. See R., VoL. III, p. 517 ("ACHD's
Resolution 330, upon which Idaho Power's Section 10 (of) Rule H is patterned, is a workable,
reasonable approach to the problem."). For example, Rule H generally sets fort the same
division of relocation costs provided for in Resolution 330 (i.e., that Idaho Power pay the entire
cost of relocation where a road improvement requiring utility relocation is funded solely by a
Public Road Agency, and that a "third-party beneficiary" pay a percentage of relocation costs
equal to the percentage paid by that third-pary beneficiary for the road improvement project that
requires utility relocation).
While the newly proposed Section i 0 of Rule H was "patterned" after Resolution 330, it
is different from Resolution 330 in several ways. For example, Section 10 of Rule H would
require a developer to pay the cost of utility relocation ~ytime the developer pays for
improvements to a public right-or-way that requires utility relocation. See R. VoL. I, p. 23.
While Resolution 330 often requires the developer to pay the cost of relocation under those
circumst~ces, Resolution 330 makes an exception to that rule where the right-of-way
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improvements that resulted in the need for relocation "were scheduled to have otherwise been
made by (ACHD) within three years of the date said improvements are actually commenced."
R. Vol. II, p. 489. Section 10 of Rule H is much less exhaustive th~ Resolution 330 and does
not contain notice and m~y other provisions contained in Resolution 330. While
Resolution 330 applies to all utilities (electric power, gas, telephone, water, railroad, fiber-optics,
etc.) ~d sewer companies, Rule H applies only to Idaho Power. While Resolution 330 requires
utilities to relocate upon demand by ACHD and that "all utility or sewer relocations shall be
completed prior to the ~ticipated date of commencement of work on the right-of-way
improvement by (ACHD)," Section 10 of Rule H purorted to require payment from any third-
pary beneficiaries "in adv~ce" of Idaho Power's relocation work. R., VoL. I, p. 23. As
proposed, Rule H also contained a definition of "third-pary beneficiaries" that included "local
improvement districts" in such a way that would require local improvement districts to pay for
utility relocations required as a result of road projects fuded by a local improvement district. Id.
Moreover, Section 10 of Rule H would vest IPUC with authority over the Resolution of ~y
disputes related to utility relocation, whereas Resolution 330 leaves the dispute
Resolution process under the sole authority of ACHD. See R., VoL. III, p. 535.
5. IPUC Order
On July 1,2009, the IPUC issued Order No. 30853, granting Idaho Power's Application
to modify Rule H. . See R., VoL. II, pp. 313-326. ACHD filed a Petition for Reconsideration,
requesting reconsideration ~d clarification of the IPUC's approval of Section 10 of Rule H
relating to utility relocations. R. VoL., II, pp. 341-357. ACHD requested reconsideration on
grounds that Section 10 of Rule H usurps the exclusive jurisdiction of Public Road Agencies
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over public rights-of-way and that the portions of Rule H that purort to require Local
Improvement Districts to pay any portion of relocation costs violate Aricle 8 § 2 and Article 7
§ 17 of the Idaho Constitution. The Association of Canyon County Highway Districts ~d the
City of Nampa filed similar petitions for reconsideration. Id. at pp. 379-382. Additionally, the
Building Contractors Association of Southwest Idaho petitioned for reconsideration of unrelated
portions of Rule H. Id. at pp. 358-372. On August 19,2009, the IPUC issued Order No. 30883
granting reconsideration, setting forth a briefing schedule ~d asking Idaho Power to make
certain clarifications to its proposed Rule H. Id. at V. III, pp. 405-410.
Of signific~t import~ce to this appeal, and in recognition that ACHD and lTD have
already adopted regulations related to utility relocations on public rights of way, Idaho Power
added a new provision to Section 10 of Rule H that purports to explain what happens where
those regulations conflict with Section 10 of Rule H. That provision is as follows:
This Section (1 OJ shall not apply to utility relocations within public
road rights-of-way of Public Road Agencies which have adopted
legally binding guidelines for the allocation of utilty relocations
costs between the utility ~d Third-Pary Beneficiaries that are
subst~tially similar to the rules set out in Section 10 of Rule H.
Id. at p. 427.
After briefing and a hearing, the IPUC issued Order No. 30955. R. VoL. iv, pp. 648-678.
In that Order, the IPUCapproved a slightly modified version of Rule H. The IPUC generally
held that the Section 10 of Rule H does not usurp the Public Road Agencies' exclusive
jurisdiction over public rights-of-way within their distrcts. However, the IPUC recognized that
the provisions in Rule H requiring relocations costs to be paid by Local Improvement Districts
would violate the Idaho Constitution. Thus, the IPUC replaced the term "Third-Pary
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Beneficiaries," which included Local Improvement Districts, with "Private Beneficiaries," which
does not include any governental entities. Id at pp. 660-664; 676. The IPUC also strck down
the provision of Section 10 of Rule H requiring that payment of relocation costs to Idaho Power
"shall be paid in advance of the company's relocation work." Id. at pp. 665-666. Notably, in
strking down that provision, the IPUC did not acknowledge that the provision for "adv~ce
payment" usurped the exclusive jurisdiction of Public Road Agencies to demand relocation on
terms determined by the Public Road Agencies. Rather, the IPUC simply held that the provision
was not necessary because Idaho Power had other ways to recover its relocation costs, including
the termination of service to a developer that refuses to pay the relocation costs. Id. at 665-666.
The IPUC also approved the newly added provision that Section 10 of Rule H "shall not
apply to utility relocations within public road rights-of-way of Public Road Agencies which have
adopted legally binding guidelines for the allocation of utility relocations costs between the
utility ~d Third-Pary Beneficiaries that are subst~tially similar to the rules set out in
Section 10 of Rule H." In other words, the ¡PUC held that regulations adopted by Public Road
Agencies are superseded by Section 1 0 of Rule H unless the Public Road Agencies' regulations
are "subst~tially similar" to Section 1 0 of Rule H.
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utility facilities, or if elimination is not feasible, to minimize the relocation costs to the maximum
extent reasonably possible." Id at 659-660; 678.1
6. This Appeal
ACHD timely appealed from the IPUC's July 1,2009 Order No. 30853. R., VoL. iv,
pp. 679-684. The Building Contractors Association of Southwest Idaho separately appealed
from that same Order, although on unrelated grounds. Id. at pp. 685-690; see also Supreme
Court Docket No. 37293-2010. This Cour consolidated the two appeals only for puroses of the
Record on Appeal. The two appeals are separate for puroses of briefing ~d oral argument.
II.
ISSUES PRESENTED ON APPEAL
(1) Whether the IPUC Order approving Section 10 ~d 11 of Rule H should be set
aside because it usurps the Public Road Agencies' exclusive jurisdiction over public rights-of-
way.
(2) Whether the IPUC Order approving Section 1 0 ~d 11 of Rule H should be set
aside because it abrogates the common law rule that utilities pay the cost of relocating utility
lines on public rights-of-way.
1 A complete copy of the entirety of Rule H is not in the record, but the relev~t portions of
Rule H, as approved by the IPUC, are found in Volume iV of the Record at pages 676-678.
For the Cour's convenience, a copy of those pages and a copy of ACHD's Resolution 330
are attached as Exhibits 1 and 2 in ~ addendum at the end of this brief.
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III.
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STANDARD OF REVIEW
This Court has jurisdiction to review ~y order of the IPUC. See Idaho Constitution,
Aricle V, § 9 ("The Supreme Cour shall have jursdiction to review, upon appeal, ... ~y order
of the public utilties commission."). IPUC orders are reviewed directly by the Idaho Supreme
Cour ~d are not subject to judicial review under the Administrative Procedures Act. In re
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Application of Hayden Pines Water Co., 111 Idaho 331,334, 723 P.2d 875, 878 (1986) (citing
I.C. § 67-5215(a)). The scope of this Cour's review is governed byLC. § 61-629, which states
in relev~t part:
(TJhe appeal shall be heard on the record of the commission as
certified by it. The review on appeal shall not be extended furter
than to determine whether the commission has regularly pursued
its authority, including a determination of whether the order
appealed from violates any right of the appell~t under the
constitution of the United States or the state of Idaho. Upon the
hearing the Supreme Court shall enter judgment, either affrming
or setting aside in part the order of the commission.
j Id.
Under this st~dard, an order of the IPUC should be set aside if the order is in excess of
i)1 the IPUC's jurisdiction. See Idaho Power Co. v. Idaho Public Utilties Comm 'n, 99 Idaho 374,
379,582 P.2d 720, 725 (1978); Washington Water Power Co. v. Kootenai Envtl. Allance, 99
APPELLANT ACHD'S BRIEF - 11
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iv.
ARGUMENT
A. Public Road Agencies Have Exclusive Jurisdiction Over Public Highways, Public
Streets And Public Rights-Or-Way
The Idaho Legislature has expressly gr~ted Public Road Agencies exclusive general
supervision ~d jurisdiction over all highways and public rights-of-way within their highway
system. Idaho Code § 40-131 O( 1) provides as follows:
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(1) The commissioners of a highway distrct have exclusive
general supervision ~d jurisdiction over all highways and public
rights-of-way within their highway system, with full power to
construct, maintain, repair, acquire, purchase ~d improve all
highways within their highway system, whether directly or by their
own agents ~d employees or by contract. Except as otherwise
provided in this chapter in respect to the highways within their
highway system, a highway district shall have all of the powers
~d duties that would by law be vested in the commissioners of the
county ~d in the district directors of highways if the highway
district had not been org~ized.
Id. (emphasis added).
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This broad gr~t of authority to Public Road Agencies includes the "exclusive general
supervisory authority over all public highways, public streets ~d public rights-of-way under
)
..~ their jurisdiction, with full power to ... establish use st~dards, pass resolutions ~d establish
regulations .., ." Id. at § 40-1310(8) (emphasis added). Not only is the gr~t of authority to
Public Road Agencies broad, but it is to be liberally construed ~d includes broad impl,ied
powers. See Idaho Code § 40-1312 (providing that the "gr~t of powers provided in this chapter
to highway districts ~d to their offcers ~d agents, shall be liberally construed, as a broad ~d
general gr~t of powers, to the end that the control ~d administration of the distrcts may be
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effcient. The enumeration of certain powers that would be implied without enumeration shall
not be construed as a denial or exclusion of other implied powers necessary for the free and
efficient exercise of powers expressly gr~ted."). As the Idaho Cour of Appeals has explained,
these statutes make "the legislature's intent clear that in the area of constrction, mainten~ce,
and day-to-day operation of highways, the prerogative of the highway commissioners is
exclusive." Worley Highway District v. Kootenai County, 104 Idaho 833, 835 663 P.2d 1135,
1137 (Ct. App. 1983).
In addition to gr~ting broad and exclusive jurisdiction to Public Road Agencies, the
Idaho Legislature has expressly mandated that ~y laws in conflict with the Public Road
Agencies' broad and exclusive jurisdiction are superseded:
The highway commissioners of a county-wide highway district
shall exercise all of the powers ~d duties provided in chapter 13
of this title ... . Wherever ~y provisions of the existing laws of
the state ofIdaho are in conflct with the provisions of this chapter,
the provisions of this chapter shall control ~d supersede all such
laws... .
jurisdiction includes the authority to "pass ordin~ces, rules, and make all regulations, not
repugn~t to law, as necessary, for caring into effect or discharging all powers ~d duties
conferred to a county-wide highway district pursu~t to this chapter and chapter 13 of this title."
Id. (emphasis added).
In Vilage of Lapwai v. Allgier, 78 Idaho 124, 128,299 P.2d 475, 478 (1956), this Cour
explained that, "(i)n the exercise of its powers and duties with respect to its streets ~d alleys, the
(highway district) acts as agent of the state. In discharging a mandatory duty imposed by the
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state, the municipality performs a governmental function ... within the police power conferred
by the state." Id
B. Consistent With Its Exclusive Jurisdiction Over Public Rights-Or-Way And Its
Statutory Authority To Pass Resolutions And Establish Regulations, ACHD
Regulates Relocation or Utilties Within Ada County Through ACHD
Resolution 330
As set forth above, ACHD has exclusive general supervision ~d jurisdiction over all
highways and public rights-of-way within its highway system. That exclusive jursdiction
Highway District by adopting Resolution 330 on September 25, 1986. R., VoL. II, pp. 482-482-
492. As set fort in more detail above, Resolution 330 regulates utility and sewer relocations in
a comprehensive fashion, including assignment of fin~cial responsibility ~d establishment of
operational procedures under various scenarios.
In addition to assigning fin~cial responsibility for utility relocation, Resolution 330
contains detailed regulations regarding notice given to affected paries, coordination meetings
that utility and sewer comp~ies are expected to attend ~d deadlines by which utilty or sewer
comp~ies are to provide ACHD with engineering plans. Resolution 330 requires utilty ~d/or
sewer comp~ies to "coordinate their activities in an attempt to eliminate duplication of roadway
restoration work." Id at p. 486. Resolution 330 provides also that "all utility or sewer
relocations shall be completed prior to the anticipated date of commencement of work on the
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right-of-way improvement by (ACHD)." Id Resolution 330 applies to all utilties and sewer
comp~ies, not just Idaho Power.
The authority of ACHD to regulate utility relocation within its district is not challenged
here, nor has it ever been challenged. In fact, IPUC commissioner, Martha Smith, acknowledged
durng the reconsideration hearingthat ACHD was acting within its jurisdiction in adopting
Resolution 330.
COMMISSIONER SMITH: Well, the way I would see it that you
could adopt your Resolution (330) in whatever form you choose
~d it is effective because you adopted it ~d it applies within your
area of jurisdiction. The issue is does Rule H apply in that
circumstance. I don't see ~y way a utility tariff could invalidate
what a public highway agency did. It just c~'t because you're
operating within your area of jursdiction. The issue would be
does Rule H apply or does it not.
Transcript of October 13, 2009 hearing, p. 60, L. 18 - p. 61, L. 1 (emphasis added); see also id.
at p. 58, L. 21 - p.59, L. 59) (Commissioner Smith expressing her view that "whatever the
highway agency has implemented, that's what applies and Rule H is not applicable in those
1 circumst~ces" because "we have no jurisdiction to approve ~y tariff provision that wouldi..j
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affect what the public road agency does").
lTD has regulated utility relocation on the interstate highway system within its
jurisdiction. See IDAPA 39.03.43. Just like the highway districts, lTD is statutorily granted
broad exclusive jurisdiction and authority over the interstate highway system. See Idaho Code
§ 40-300 et seq. In fact, lTD has express statutory authority to "(m)ake reasonable regulations
for the ... relocation of facilities of any utility ... on the interstate system, including extensions
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within urb~ areas."2 It is clear that ACHD and other Public Road Agencies have acted within
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their respective jurisdictions ~d pursuant to express statutory authority to establish use
st~dards, pass resolutions and establish regulations ... ." See I.C. § 40-1310(8) (emphasis
")
I added). The only question is whether the IPUC has authority to regulate utility relocations on
public rights-of-way.
C. The IPUC's Authority Is Limited
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In stark contrast with the broad "exclusive" ~d "liberally constred" authority statutorily
gr~ted to Public Road Agencies overpublic rights-of-way, the IPUC's jurisdiction is extremely
limited. This Cour has explained the limited jursdiction of the IPUC as follows:
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The Idaho Public Utilities Commission exercises limited
jurisdiction ~d has no authority other th~ that expressly gr~ted
to it by the legislature ... . The Idaho Public Utilities Commission
has no authority other than that given to it by the legislature. It
exercises a limited jurisdiction ~d nothing is presumed in favor of
its jurisdiction. .. . As a general rule, administrative authorities are
tribunals of limited jurisdiction ~d their jursdiction is dependent
entirely upon the statutes reposing power in them ~d they canot
confer it upon themselves, although they may determine whether
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2 The fact that lTD is expressly gr~ted authority to regulate utility relocation on the interstate
system does not me~ that ACHD does not have that same authority over utility relocation
within its highway district. The section ofthe Idaho Code setting forth lTD's powers ~d
authority is much more detailed ~d specific th~ the section setting fort the powers ~d
authority of highway districts. Rather than set forth the specific powers ~d authority of the
highway districts, Idaho Code § 40-1310 broadly gr~ts "exclusive jurisdiction" over public
rights-of-way to the highway districts. The statute further provides that the gr~t is to be
"liberally construed" ~d includes other "implied powers necessary for the free ~d efficient
exercise of powers expressly gr~ted." Idaho Code § 40-1312. Again, ACHD's authority to
regulate utilty relocation has never been questioned ~d was acknowledged by the IPUC at
the reconsideration hearing. See Tr~script of October 13,2009 hearing, p. 60, L. 18 - p. 61,
L. 1.
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they have it. If the provisions of the statutes are not met ~d
compli~ce is not had with the statutes, no jurisdiction exists.
Alpert v. Boise Water Corporation, 118 Idaho 136, 140, 795 P.2d 298, 302 ( 1990) (citations
omitted).
The Idaho Legislature has gr~ted the IPUC limited rate-making authority. See Idaho
Code § 61-502 and § 61-503. These statutes authorize the IPUC to determine whether rates or
charges by public utilities are "unjust, uneasonable, discriminatory or preferential, or in any
wise in violation of ~y provision of law," ~d to otherwise fix the rates charged by public
utilities. The authority ~d jurisdiction ofthe IPUC is limited to this rate-making function.
D. This Court Has Not Hesitated To Invalidate Orders Of The ¡PUC Where The IPUC
Has Attempted To Act Outside Of Its Traditional Rate-Making Function Or
Without Express Statutory Authority
This Court has been asked on multiple occasions to determine whether the IPUC has
acted within its limited jurisdiction, and this Court has set aside several IPUC orders where the
IPUC has overstepped its authority. In reviewing IPUC orders, this Court has repeatedly
reaffirmed the general principle that the IPUC has only that jurisdiction expressly gr~ted it by
statute. See United States v. Utah Power & Light Co., 98 Idaho 665, 667, 570 P.2d 1353, 1355
(1977) ("We star with the proposition that a public service commission has no inherent power;
its powers ~d jurisdiction derive in entirety from the enabling statutes creating it and nothing is
presumed in favor of its jurisdiction. "). Thus, in determining whether the IPUC has acted within
its limited jurisdiction, this Court looks for express statutory authority for the IPUC' s action.
See, e.g., Matter of Strand, 111 Idaho 341, 342, 723 P.2d 885, 886 (1986) (setting aside ~ IPUC
order that prohibited a water comp~y from collecting utility hills that were more th~ one
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month past due as of the date of the IPUC's order because "we have been pointed to no statute
which gives the IPUC the authority to prohibit a utility, charging reasonable rates, from
collecting on its past due accounts."); Idaho Power Co. v. Idaho Public Utilties Comm 'n, 102
Idaho 744, 750, 639 P.2d 442, 448 (1981) (setting aside ~ IPUC order that adopted intervenor
funding rules in proceedings under the Public Utility Regulatory Policies Act of 1978 because of
IPUC lack of authority to do so "in the absence of a specific statute to that effect").
This Cour has expressly held that the IPUC's authority under Idaho Code Sections 61-
502 and 61-503 is limited to the "traditional and ortodox ratemakng fuction." Washington
Water Power Co. v. Kootenai Envtl. Allance, 99 Idaho 875,882,591 P.2d 122, 129 (1979)
(setting aside ~ IPUC order prohibiting a public utility from mailing political advocacy in its
biling envelopes because that order "is not suffciently within the ratemaking authority gr~ted
to it by the legislature"). This Cour further clarified the limited jurisdiction of the IPUC by
explaining that "(i)fthe legislative br~ch desires the (IPUC) to have such authority, it must be
provided by precise l~guage." Id; see also Application of Boise Water Corp. to Revise and
Increase Rates Chargedfor Water Service, 128 Idaho 534, 538, 916 P.2d 1259, 1263(1996)
(interpreting Idaho Code Sections 61-502 and 61-503 and holding that "the IPUC's authority may
only be exercised in such a way as to fix non-discriminatory ~d non-preferential rates ~d
charges"); United States v. Utah Power & Light Co., 98 Idaho at 668 (setting aside ~ IPUC
order that invalidated a contract between utilities because "(n)o provision in the public utilities
act gives the Commission the authority to indiscriminately set aside contracts ... . Nor do we
think such a power c~ be implied from those statutes which delegate rate-making authority to
the Public Utilities Commission.").
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E. Section 10 Of Rule H Usurps The Public Road Agencies' Exclusive Jurisdiction
Over Public Rights-Of-Way
1. Public Road Agencies Have Exclusive Jurisdiction Over Public Rights-of
Way
As set forth above, Public Road Agencies have "exclusive" jurisdiction over public
rights-of-way within their respective highway districts. Idaho Code § 40-1310. That exclusive
jurisdiction expressly includes the "full power to ... establish use standards, pass resolutions ~d
establish regulations" with regard to the public rights-of-way. Id. i.e. § 40-131 0(8). The gr~t
of exclusive Jurisdiction is to be "liberally construed" ~d includes other "implied powers
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\1 necessary for the free and effcient exercise of powers expressly granted." Idaho Code § 40-
1312. Consistent with this broad gr~t of authority, ACHD has regulated the relocation of
utilities on public rights-of-way through Resolution 330, and has done so for over 23 years.
Section 10 of Rule H attempts to usurp the exclusive jurisdiction gr~ted to Public Road
Agencies over public rights-of-way. Through the adoption of Section 10 of Rule H, the IPUC
will effectively dictate the policies ~d procedures of Public Road Agencies regarding electric
:J utility relocations, impact the operation of Public Road Agencies in their negotiations and
relations with third paries ~d developers concerning road improvement projects and regulate
and control electric utility relocations by assigning financial liability for such relocations. Such
is strictly in the power and authority of the Public Road Agencies ~d should be left in the h~ds
of the Public Road Agencies.
Notably, the Idaho Legislatue's express reason for granting "exclusive" jurisdiction over
the rights-of-way to the Public Road Agencies ~d m~dating that such jurisdiction be "liberally
constred" is "to the end that the control ~d administration of the districts may be efficient."
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Idaho Code § 40-1312. Through Resolution 330, ACHD is able to efficiently regulate the
relocation of all utility ~d sewer comp~ies within the rights-of-way though one single set of
regulations. That efficiency is lost if IPUC regulates electric utility relocations on public rights-
of-way through Section 10 of Rule H. The result is that relocation ofIdaho Power's utility lines
is governed by Rule H, while the relocation of all other utility (i.e., gas, telephone) ~d sewer
lines is governed by Resolution of 330. According to Rule H, the resolution of ~y disputes
involving Idaho Power falls under the jurisdiction of IPUC, while resolution of all other disputes
remains under the jurisdiction of ACHD.
It is easy see how operating under two sets of regulations wil reduce efficiency and
otherwse complicate utilty relocation on public rights-of-way. For example, a road widening
project often requires the relocation of multiple utility lines (i.e., water ~d/or gas) in addition to
electrc utility lines. For this reason, Resolution 330 requires all affected utility companies to
paricipate in coordinated meetings and provide their engineering pl~s by specified deadlines.
Resolution 330 requires utility ~d/or sewer companies to "coordinate their activities in an
attempt to eliminate duplication of roadway restoration work." R., VoL. II, p. 486. In the event
of disputes, ACHD is the ultimate decision-maker ~d c~ resolve disputes involving each
affected utility or sewer company. For example, scheduling disputes may arise as to which
utility will relocate its lines first. If Resolution 330 governs as to all utility ~d sewer
companies, ACHD c~ efficiently resolve the dispute. However, if Rule H governs as to Idaho
Power, then ACHD c~ only resolve the disputes involving the other utilities ~d IPUC has
jurisdiction over disputes involving Idaho Power, which may result in scheduling conflicts.
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2. The IPUC Has No Statutory Authority To Regulate Utilty Relocation On
Public Rights-Or-Way
The IPUChas "no authority other th~ that expressly gr~ted to it by the legislature."
Alpert, 118 Idaho at 140. "It exercises a limited jurisdiction and nothing is presumed in favor of
its jurisdiction." Id Here, no statute authorizes IPUC to regulate utility relocation on public
rights-of-way. The IPUC erroneously concluded that it has authority to regulate utility relocation
under Idaho Code §§ 61-502 ~d 61-503. Under those Sections, the IPUC is gr~ted authority to
determine whether a rate charged for any "service or product or commodity" is "unjust,
uneasonable, discriminatory or preferential, or in any Wise in violation of any provision of law."
If the IPUC, after a hearing, determines that the rate charged is "unjust, uneasonable,
discriminatory or preferential, or in ~y wise in violation of ~y provision of law," the IPUC may
"fix" ~ appropriate rate.
These statutes do not grant the IPUC authority to regulate the relocation of utilty lines on
I.
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relocation of a utility line is not the provision of electrcity to a consumer. Rather, a relocation
only comes into play when a utility is already providing electricity through a power line on a
public right-of-way and the utility is required to move the power line because of a road
improvement project. Costs associated with relocation of utility lines are business expenses
incurred by the utility, not a "service" provided to a customer.
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Second, this is not a situation where the IPUC has determined that a rate charged by
Idaho Power is "unjust, unreasonable, discriminatory or preferential, or in any wise in violation
of ~y provision of law." In fact, as the IPUC has acknowledged, the division of relocation costs
under Rule H is the same as it is under Resolution 330.
This Cour has had several occasions to interpret Idaho Code §§ 61-502 ~d 61-503 ~d
has expressly held that the IPUC's authority under these statutes is limited to the "traditional and
COl orthodox ratemaking function." Washington Water Power Co. v. Kootenai Envtl. Allance, 99
Idaho 875, 882, 591 P.2dI22, 129 (1979). In Washington Water Power Co., the IPUC asserted
that Idaho Code §§ 61-502 and 61-503 authorized it to enter orders regulating whether utilities
could mail political advocacy with their biling statement. This Court set aside the IPUC order
as "not sufficiently within the ratemaking authority gr~ted to it by the legislatue." Id.,99
Idaho at 880. In setting aside the IPUC'sorder, this Court specifically addressed the IPUC's
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limited authority to regulate the business expenses incurred by utilities. This Cour explained
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that "(a)n inquiry into such expenses by the Commission will normally only be extended into
whether such expenditures may be classified as 'operating expenses' and thus passed on to the
utility ratepayers." Id. The same analysis applies here to the expenses utilties incur when
required to relocate their utility lines on public rights-of-way. Idaho Code §§ 61-502 and 61-503
authorize the IPUCto determine whether utility costs associated with mandatory relocations may
be included in a utilty's rate base, but this is the limit of the IPUC's jurisdiction ~d authority in
this matter. The statutes do not authorize IPUC to intervene in the exclusive jurisdiction of the
Public Road Agencies to regulate utility relocation on public rights-of-way. As this Cour has
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explained, "(i)fthe legislative br~ch desires the (IPUC) to have such authority, it must be
provided by precise l~guage." Id at 882.
In fact, this Cour has previously addressed the interplay of jursdiction between Public
Road Agencies and the IPUC with regard to the removal of utility lines on public rights-of~way.
In Vilage of LCipwai v. Allgier, 78 Idaho 124,299 P.2d 475 (1956), a municipality required a
utility to remove its utility lines from the certain municipal streets. The utility argued that all
utilities are regulated by the IPUC ~d, therefore, the municipality could not order removal of the
utility lines without approval of the IPUC. In rejecting this argument, this Cour explained that
the regulation of public rights of way, including the removal of utility lines, falls within the
jurisdiction of the municipality ~d is outside the authority of the IPUe. Specifically, this Court
held that "the (Public Utilities Law) does not contain any provision diminishing or transferrng
any of the powers ~d duties of the municipality to control and maintain its streets and alleys."
Id, 78 Idaho at 129. With regard to the use of public streets by utilities, this Court explained that
the legislature "has preserved to the municipality the power to deny their use to a utility, or to
impose reasonable regulations thereon, when necessar to the use of such streets ~d alleys by
the public in the usual m~ner." In other words, even after the IPUC was created and was
gr~ted authority over public utilities, municipalities retained the authority to regulate the
utilities' use of public rights-of-way. ¡d. (explaining that the municipalities' "control of streets
(has) been continued undiminished after the creation of the public utilities commission").
3. Concurrent Jurisdiction
The most clear usurpation of the Public Road Agencies' exclusive jurisdiction over the
public rights-of-way is found in the following provision of Section 10 of Rule H:
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This Section (10) shall not apply to utility relocations within public
road rights-of-way of Public Road Agencies which have adopted
legally binding guidelines for the allocation of utility relocations
costs between the utility and Third-Pary Beneficiaries that are
subst~tially similar,to the rules set out in Section 10 of Rule H.
(Referred to hereinafter as the "Preemption Clause") R., VoL. II, p. 427.
In other words, regulations adopted by Public Road Agencies are superseded by
Section 10 of Rule H unless the Public Road Agencies' regulation are "substantially similar" to
Section 10 of Rule H. This is a clear intrusion upon the Public Road Agencies' "exclusive"
jurisdiction over public rights-of-way in that it ties the Public Road Agencies' hands. Public
Road Agencies are wholly deprived of jurisdiction if the regulations they pass are superseded
unless they are the same as Rule H. In laym~'s terms, the IPUC is telling Public Road Agencies
that "you can regulate utility relocations, but only if you regulate in exactly the same way the
IPUC has regulated utility relocations."
Notably, in the case of ACHD, the IPUC's order leaves doubt as to whether
Resolution 330 or Rule H governs because it is unclear whether Resolution 330 is "subs~tially
similar" to Rule H. Whíle Rule H was purportedly "patterned" after Resolution 330, there are
many differences. Rule H and Resolution 330 conflct with regard to who pays the costs of
utility relocation with regard to improvements to public rights-of-way that are paid for by a
private developer but that otherwise would have been made by ACHD within three years.
r Compare R., VoL. I, p. 23 to R. VoL. III, p. 489. Rule H lacks many of
the detailed provisions
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contained iIl Resolution 330 regarding notice, coordination meetings, deadlines for submitting
engineering pl~s ~d cooperation requirements. Moreover, Rule H purorts to give IPUC
ì jurisdiction of disputes, while Resolution 330 leaves dispute resolution in thejurisdiction of
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ACHD. In light 9fthese differences, ~ argument can be made that Resolution 330 is not
"subst~tially similar" to Rule H and that Resolution 330 is, therefore, null ~d void. Even if
Resolution 330 and Rule H are "substantially similar" in their current form, the effect of the
Preemption Clause is that ACHD would never be able to modify Resolution 330 because ~y
modification would deviate from Rule H and render Resolution 330 null ~d void, thus
abdicating ACHD's exclusive jurisdiction.
The IPUC's conclusion that Rule H preempts any regulations adopted by Public Road
Agencies that are not "substantially similar" is backwards. The IPUC has characterized Rule H
as allowing IPUC to "exercise its jurisdiction concurrently" with the Public Road Agencies. See
R., VoL. II, p. 321. As ~ initial matter, a system of concurrent jursdiction over public rights-of-
way is in clear contravention of Idaho Code § 40-131 O( 1), which gives Public Road Agencies
"exclusive" jursdiction and supervision over public rights-of-way.
Moreover, the so-called "concurrent" jurisdiction envisioned by the IPUC is inconsistent
with State v. Poynter, 70 Idaho 438, 220 P.2d 386 (1950). In State v. Poynter, this Court
addressed the limitations of "concurrent" jurisdiction where two public agencies regulate the
same subject matter. This Cour held that "(tJhe state and a municipal corporation may have
concurrent jurisdiction over the same subject matter ~d in which event the municipality may
make regulations on the subject notwithstanding the exercise of state regulations thereon,
provided the regulations or law are not in conflict." Id., 70 Idaho at 441 (emphasis added). Thus,
there canot be "concurrent" jurisdiction in the event of conflicts between Rule H ~d
regulations adopted by Public Road Agencies. Indeed, the fact that there canot be "concurent"
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jurisdiction is highlighted by the Preemption Clause, which purports to invalidate any Public
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Road Agencies' regulations that are not subst~tially similar to Section 10 of Rule H.
Even if the IPUC had authority to regulate utilty relocation on public rights-of-way
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concurrently with the Public Road Agencies' jurisdiction, the "Preemption Clause" would have
to be in the opposite of its current form. Instead of providing that Rule H preempts Public Road
Agencies' regulations in the event of a confict, it should provide that Public Road Agencies'
regulations preempt Rule H. This result is m~dated by the fact that the Public Road Agencies
are given "exclusive" jurisdiction ~d supervision overthe public rights-of-way. It is also
mandated by Idaho Code § 40-1406, which provides that Public Road Agencies "may pass
'I ordin~ces, rules, ~d make all regulations, not repugnant to law" and that "(w)herever any',-._.'.
provisions of the existing laws of the state ofIdaho are in conflict with the provisions of this
chapter, the provisions of this chapter shall control and supersede all such laws."
Indeed, as quoted above, at least one of the IPUC commissioners acknowledged during
the reconsideration hearing that Rule H canot preempt regulations adopted by Public Road
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d Agencies. See Tr~script of October 13,2009 hearing, p. 60, L. 18 - p. 61, L. 1 (explaining that
Section 10 of Rule H c~not invalidate Resolution 330 because "you're operating within your
area of jurisdiction"); Transcript of October 13,2009 hearing, p. 60, L. 18 - p. 61, L. 1
(emphasis added); see also id. at p. 58, L. 21 - p.59, L. 59) (Commissioner Smith expressing her
view that "whatever the highway agency has implemented, that's what applies ~d Rule H is not
applicable in those circumstances" because "we have no jurisdiction to approve ~y tarff
provision that would affect what the public road agency does").
/
APPELLANT ACHD'S BRIEF - 26
44805.0001.1855311.1
Unfortunately, the IPUC did not adopt Commissioner Smith's view. Rather, the IPUC
approved the Preemption Clause, effectively holding that ~y Public Road Agencies' regulations
are null ~d void if not "subst~tially similar" to Rule H.
F. Like Section 10, The New Section 11 Of Rule H Also Usurps The Public Road
Agencies' Exclusive Jurisdiction Over Public Rights-Of-Way And Is An
Unauthorized Attempt To Exercise Jurisdiction Over Public Road Agencies
Subsequent to Idaho Power's application to modify Rule H, the Idaho Legislature enacted
new legislation aimed at reducing utility relocation costs. Idaho Code § 40-210 (effective July 1,
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2009) expresses the "intent of the legislatue that the public highway agencies ~d utilities
engage in proactive, cooperative coordination of highway projects through a process that will
attempt to effectively minimize costs, limit the disruption of utility services, and limit or reduce
the need for present or future relocation of such utility facilities." ¡d. Accordingly, Section 40-
210 provides that Public Road Agencies ~d affected utilities "shall use their best efforts to find
ways to (a) eliminate the cost to the utility of relocation of the utility facilities, or (b) if
elimination of such costs is not feasible, minimize the relocation costs to the maximum extent
reasonably possible." In furter~ce of this objective, Section 40-210 requires Public Road
Agencies to "permit the affected utility to paricipate in project development meetings" related to
projects that may require the relocation of utility facilities. In enacting Idaho Code § 40-210, the
Idaho Legislature expressly reaffirmed the Public Road Agencies' jursdiction over public rights-
way.").
APPELLANT ACHD'S BRIEF - 27
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Notably, even prior to this legislation, ACHD engaged in the practices now mandated by
Idaho Code § 40-210. ACHD has always attempted to minimize relocation costs ~d includes
affected utilities in project development meetings related to projects that may result in relocation
of utilities. In fact, Resolution 330 expressly invites affected utilities to attend such meetings.
See R., Vol. II., p. 488 ("The District will schedule a plan review conference to which
representatives of all funding paricipants ~d affected utility ~d/or sewer companies wil be
asked to attend.").
Idaho Code § 40-210 makes no mention of the IPUC, much less authorizes the IPUC to
enforce its provisions. Nevertheless the IPUC added a new section to Rule H - "Section 11"-
through which the IPUC purports to have jurisdiction to enforce the provisions of Idaho Code
§ 40-210. Specifically, Section 11 of Rule H provides:
Purs~t to Idaho Code § 40-210, the Company will paricipate in
project design or development meetings upon receiving written
notice from the Public Road Agency that a public road project may
require the relocation of distribution facilities. The Comp~y ~d
other paries in the planing process wil use their best effort to
find ways to eliminate the costs of relocating utility facilities, or if
elimination is not feasible, to minimize the relocation costs to the
maximum extent reasonably possible. This provision shall not
limit the authority of the Public Road Agency over the public road
right-of-way.
R., VoL. IV., pp. 659-660; 678.
Under this provision, particularly given that the IPUC asserts jurisdiction to resolve
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Agencies are complying with their statutory duty to minimize relocation costs. The questions
asked and comments made by the IPUC during the October 13,2009 reconsideration hearng
APPELLANT ACHD'S BRIEF - 28
44805.0001.1855311.1
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fuher indicate the IPUC's belief that it has jurisdiction to regulate ~d determine whether
Public Road Agencies have satisfied the requirements ofIdaho Code § 40-210. See, e.g.,
Transcript of October 13, 2009 hearing, p. 52, LL. 2-11 (explaining ACHD's duties under Idaho
Code § 40-210 to eliminate or minimize relocation costs and asking "who is going to make that
judgment?"); id. at p. 53, L. 17- p. 54, L. 7 (explaining that ACHD would be free to continue
with a project, even if a utility asserted that relocation costs have not being minimized, and
expressing the concern that "you can literally write off provisions (a) ~d (b) (ofIdaho Code
§ 40-210) unless there's something where somebody can have some sort of option to mitigate ~
arbitrar or capricious decision by ACHD.").
With all due respect, the IPUC has no jurisdiction to enforce Idaho Code § 40-210 or
otherwise regulate the actions of Public Road Agencies. In the event that a utilty or other
interested pary believes there has been a violation of Idaho Code § 40-210, that par may raise
its concern to a court, but the IPUC has no authority to police the Public Road Agencies.
G. Section 10 Of Rule H Is An Improper Attempt To Abrogate The Common Law Rule
"Under the common law, a utility, placing its facilities along streets ~d highways, gains
no property right ~d upon dem~d must move its facilities at its expense." State ex reI. Rich v.
Idaho Power Co., 81 Idaho at 501. Over the last several years, utility comp~ies have attempted
on many occasions to abrogate this rule. See, e.g., id. (striking down a statute that would have
required utilities to be reimbursed out of the dedicated State Highway Fund for costs of
relocating their utility facilities on the interstate highway system); Mountain States TeL. and TeL.
Co. v. Boise Redevelopment Agency, 101 Idaho 30, 607 P.2d 1084 (1980) (rejecting the argument
that utilities should be permitted to obtain reimbursement of their relocation costs from ~ urb~
APPELLANT ACHD'S BRIEF - 29
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renewal agency). In these cases, this Court has expressly refused to abrogate the common law in
the absence oflegislation. See Mountain States Telephone, 101 Idaho at 35 ("In the absence of
clear legislative direction we decline to abolish the common law rule ~d establish a rule
requiring relocation costs to be paid to permissive users such as the utilities.).
Under the common law rule, Idaho Power must pay the costs to relocate its facilities at
the dem~d of the Public Road Agencies. Idaho Power c~not circumvent the common law rule
through its Rule H Tariff. Ths principle is explained in Us. West Communications, Inc. v. City
of Longmont, 948 P.2d 509, 520 (Colo. 1997), which addresses the respective jurisdictions of
Colorado municipalities and the Colorado Public Utilities Commission under statutes similar to
the Idaho statutes. There, the Colorado Supreme Court rejected the argument that the Colorado
Public Utilities Commission's power to regulate the services ~d rates of utilities preempts a
municipality's power to regulate the use of its streets, including relocation of utilities on public
streets. The Colorado Supreme Cour upheld the common law rule that utilities must pay the
cost of relocating their facilities on public streets and specifically rejected the argument that the
common law rule could be abrogated by a tariff approved by the Public Utilities Commission.
Id at 518 ("Were we to hold otherwse, a utility company could avoid having to pay relocation
costs simply by procuring P.U.C. approval ofa tariff ... .").
The fact that Idaho Power ~d/or the IPUC believe some other party should be
responsible for the cost of utility relocation does not authorize the abrogation of the common law
rule. As this Cour explained in Mountain States Telephone, the question of who should pay for
utility relocation is "a question of policy (that) is not for us to answer, but for the legislature... .
APPELLANT ACHD'S BRIEF - 30
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The common law rule applies until ~d unless the legislature has specifically stated otherwise."
101 Idaho at 35,607 P.2d at 1089 (citations omitted).
The common law rule cannot be abrogated through a tarff approved by the IPUC. Only
the legislature c~ abrogate the common law rule. Accordingly, Section 10 of Rule H should be
set aside.
V.
CONCLUSION
Ifthe Idaho Legislature had wanted the IPUC to have jurisdiction -over the relocation of
utility lines on public rights-of-way, it would have gr~ted that authority to the IPUC. See
Washington Water Power Co. v. Kootenai Envtl. Allance, 99 Idaho at 882 (setting aside ~
IPUC order as in excess of its jursdiction and explaining that "(i)f the legislative br~ch desires
the (IPUC) to have such authority, it must be provided by precise language"). Instead, it granted
the IPUC only a limited rate~making authority ~d gr~ted Public Road Agencies "exclusive"
jursdiction over public rights-of-way. ACHD and other Public Road Agencies have exercised
that exclusive jurisdiction by adopting regulations that govern the relocation of utility lines on
public rights-of-way. In approving Sections 10 and 11 ofIdaho Power's Rule H Tariff, the IPUC
has acted in excess of its limited jurisdiction and has attempted to usurp the Public Road
Agencies' exclusive jurisdiction over public rights of way. Accordingly, the IPUC's order
approving Sections 10 and 11 ofIdaho Power's Rule H Tariff should be setaside.
APPELLANT ACHD'S BRIEF - 31
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RESPECTFULLY SUBMITTED THIs./ day of May, 2010.
HA WLEY TROXELL ENNIS & HAWLEY LLP
By
rl lark, ISB NO.1 026
D. John Ashby, ISB No. 7228
Attorneys for Petitioner/Appeii~t Ada County
Highway District
APPELLANT ACHD'S BRIEF - 32
44805.0001.1855311.1
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on ths _ day of May, 2010, I caused to be served a tre
copy of the foregoing APPELLAN ACHD'S BRIF by the method indicated below, ~d
addressed to each of the followig:
Je~ D. Jewell
Commission Secretar
IDAHO PUBLIC UTILITIES COMMISSION
P.O. Box 83720
Boise, ID 83720-0074
Krstine Sasser
IDAHO PUBLIC UTILITIES COMMISSION
P.O. Box 83720
Boise, ID 83720-0074
Lisa Nordstrom
Baron L. Kline
IDAHO POWER COMPAN
P.O. Box 70
Boise, Idaho 83707-0070
Scott Sparks
Gregory W. Said
IDAHO POWER COMPAN
P.O. Box 70
Boise, Idaho 83707-0070
Michael C. Creamer
GIVENS PURSLEY, LLP
601 W. Banock St.
Boise, ID 83702
APPELLANT ACHD'SBRIF - 33
L U.S. Mail, Postage Prepaid
Hand Delivered
_ Overnght Mail
E-mail
_ Telecopy
i U.S. Mail, Postage Prepaid
H~d Delivered
_ Overnght Mail
_ E-mail: kts.sasser~puc.idaho.gov
_ Telecopy
-. U.S. Mail, Postage Prepaid
Hand Delivered
_ Overnght Mail
_ E-mail: lnordstrom(gdahopower.com
bklne~idahopower.com
_ Telecopy:
X U.S. Mail, Postage Prepaid
H~d Delivered
_ Overnght Mail
_ E-mail: ssparks(gdahopower.com
gsaid(gdahopower.com
_ Telecopy
Lu.s. Mail, Postage Prepaid
H~d Delivered
_ Overght Mail
_ E-mail: mcc~givenspursley.com
_ Telecopy
44805.0001.1855311.1
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Micheal Kurt, Esq.
Kur J. Boehm, Esq.
BOEHM, KURTZ & LOWRY
36 E. Seventh Street, Suite 1510
Cincinnati, OH 45202
i U.S. Mail, Postage Prepaid
Hand Delivered
_ Overight Mail
_ E-mail: mkur~BKLlawfi.com
kboehm~BKUawfir.com
_ Telecopy
i U.S. Mail, Postage Prepaid
Hand Delivered
_ Overnght Mail
_ E-mail: mjohnson(ghitepeterson.com
dvandervelde~tepeteron.com
_ Telecopy
-t U.S. Mail, Postage Prepaid
_ Hand Delivered
_ Overght Mail
_ E-mail: khns~energystrat.com
_ Telecopy
Matthew A. Johnon
Davis F. V~derVelde
WHITE PETERSON GiGRA Y ROSSMA
NY & NIæOLS, P.A.
5700 E. Franlin Road, Suite 200
Nampa, il 83687
Kevin Higgins
ENERGY STRATEGIES, LLC
Parkside Towers
215 S. State Street, Suite 200
Salt Lake City, UT 84111
APPELLAN ACHD'S BRIF - 34
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ADDENDUM
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EXHIBIT 1
4405.0001.1855311.1
'1 Section 1 Additions and Amendments:
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Easement is the Company's legal right to use the real propert of another for the
purose of installing or locatinKelectric facilities.
Prior Right of Occupancy is a designated area within the public road right-of-way
where the Company and the Public Road Agency have agreed that the costs of the
Relocation of facilities in the designated area will be borne by the Public Road
Agency. For example, a Prior Right of Occupancy may be created when the Public
Road Agency expands the public road right-of-way to encompass a Company
Easernent without compensating the Company for acquiring the Easernent but the
pai-ties agree in writing that the subsequent Relocation of distrbution facilties
within the designated area wil be borne by the Public Road Agency.
Local Improvement District (LID) is any entity created by ~ authorized governing body
under the statutory procedures set fort in Idaho Code, Title 50, Chapter 17 or Idaho Code §
40-1322. For the purose of Rule H, the term LID also includes Urban Redevelopment
projects set forth in Idaho Code, Title 50, Chapter 20.
Public Road Agency is any state or local agency which constrcts, operates,
maintains or administers public road rights-of-way in Idaho, including where
appropriate the Idaho Transporttion Deparent, any city or county street deparent,
or a highway district.
Private Beneficiar is any individual, firm or entity that provides fuding for road
improvernents performed by a Public Road Agency or compensates the Comp~y for
the Relocation of distribution facilities as set fort in Section 10. A Private Beneficiar
may include, but is not liiited to, real estate developers, adjacent landowners, or
existing customers of the Company.
APPENDIX
ORDER NO. 30955
676 -
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10. Relocation Costs in Public Road Rights-of-Way
The Company often locates its distribution facilties 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 wil relocate its distribution
facilties from or within the public road rights-of-way. The Relocation may be for the
benefit of the general public, or in some cases, be a benefit to one or more Private
Beneficiaries. Nothing in this Section bars a Local Improvement District (LID) from
voluntarly paying the Company for Relocations.
The Company's cost of Relocations from or within the public road rights-of-way shall
be allocated as follows:
a. Road Improvements Funded by the Public Road Agency - When the
Relocation of distribution facilities is requested by the Public Road Agency
to make roadway improvements or other public irnprovernents, the Company
wil bear the cost of the Relocation.
b. Road Improvements Parially Funded by the Public Road Agency _
When the Public Road Agency requires the Relocation of distribution
facilities for the benefit of itself (or an LID) and a Private Beneficiar, the
Company wil bear the Relocation costs equal to the percentage of the
Relocation costs allocated to the Public Road Agency or LID. The
Private Beneficiary wil pay the Company for the Relocation costs equal to the
percentage of the road improvement costs allocated to the Private Beneficiar.
c. Road Improvements not Funded by the Public" Road Agency - When the
Relocation of distribution facilties in the public road rights-of-way is solely
for a Private Beneficiar, the Private Beneficiar wil pay the Company for
the cost of the Relocation.
2 APPENIX
ORDER NO. 30955
677
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d. Prior Right of Occupancy - When the Company and the Public Road
Agency have entered into än agreement regarding a Private Right of
Occupancy, the costs of Relocation in such designated area will be borne
by the Public Road Agency, or as directed in the agreement.
All payments from Private Beneficiaries to the Company under this Section shall be
based on the Company's Work Order Cost.
Ths Section shall not apply to Relocations within public road rights-of-way of Public Road
Agencies which have adopted legally binding guidelines for the allocation of utility
relocation costs between the Company and other paries that are substatially similar to
the rules set out in Section i 0 of Rule H.
11. Eliminating or Minimizing Relocation Costs in Public Road Rights-of-
Way
Pursuant to Idaho Code § 40-210'-the Company will paricipate in project design or
developrnent meetings upon receiving written notice from the Public Road Agency
that a public road project may require the relocation of distribution facilities. The
Company and other paries in the planing process will use their best efforts to find
ways to eliminate the cost of relocating utilty facilities, or if elirnInation is not
feasible, to minirnize the relocation costs to the maxirnum extent reasonably possible.
This provision shall not lirnit the authority of the Public Road Agency over the public
road right-of-way.
3 APPENDIX
ORDER NO. 30955678
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APPELLANT ACHD'S BRIEF ~ 37
EXHIBIT 2
44805.0001.1855311.1
RESOLUTION NO. 330
BY THE ADA COUNTY HIGHWAY DISTRICT COMMISSIONERS: :..::: .
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CHARES'L. WINDER, GLENN J. RHODES, KEITH A. LOVELESS
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A RESOLUTION REPEALING RESOLUTION NO. 232 AND ESTABLISHING A REVISED
POLICY WITH RESPECT TO THE RELOCATION OF PUBLIC UTILITY AND SEW
FACILITIES WITHIN THOSE PUBLIC RIGHTS-OF-WAY UNDER THE JURISDICTION
OF ADA COUNY HIGHWAY DISTRICT.
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WHERS, it is deemed to be in the best interests of Ada County
Highway District and the various public utility and sewer entities
who locate, relocate, install and/or reinstall facilities wi thin
the public rights-of-way to establish a revised policy with respect
to the relocation of such facilities; and
'l WHRES, representatives of the District, Boise City Depart-
ment of Public Works and various utility organizations met on Decemer
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18, 1985 to establish the guidelines for utility and sewer relocations
within those public rights-of-way under the jurisdiction of Ada
County Highway District:
~'I ¡NOW, THEFORE, BE IT RESOLVED AND ORDAINED BY THE ADA COUNTY
HIGHWAY DISTRICT BÖAR OF COMMISSIONERS that the following policies
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shall be applicable with respect to the relocation of public utility
and sewer .facilities within the public rights-of-way under the juris-
diction of Ada County Highway District:
SECTION 1. ÒTILITY OR SEliER RELOCATIONS REQUIRED AS A RESULT
OF RIGHT-OF-WAY IMPROVEMENTS FUNDED BY ADA COUNTY HIGHWAY
DISTRICT.
This section is applicable to those instances where utility or
relocations are required because improvements sponsored or
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funded by Ada County Highway District (District) are being
undertaken wi thin the public rights-of-way.
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A.Relocation Cost Responsibility - The responsibility
for costs associated with the relocation of utility
or sewer facilities shaii be assigned' as follows:
.(1) Should the District require that any facility
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of a utility or sewer company be relocated from
its existing location to a new location wi thin
the public right-of-way, all relocation costs
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shall be the responsibility of the utility or
sewer company.
484 EXHIBIT A
Resolution No. 330
Page .2
(2) If a utility or sewer company has facilities 10-
cated on private property, with a right of occu-
pancy other than its right to locate in a public
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right-of-way, and the District requires that any
facility so located be relocated, the actual costs
for such relocation shall be the responsibility
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of the District. Such costs shall be exclusive
of profit allowances.
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B. Operational Procedure:
(1) Preliminary Notification: The District will
provide written notification of potential util-
i ty or sewer relocation requirements at the con-
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ceptual stage of project development. Any plans
provided at this stage shall be noted as prelimi-
nary. Where practical, the District shall provide
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such notification one year in advance of the com-
men cement of right-of-way improvement work. The
notification specified herein shall be delivered
to affected utility and/or sewer companies with a
copy to the the Utility Coordinating Council
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(U.C.C.). The District shall provide the U.C.C.
with a tentative scheduiè of its work for the en-
suing fiscal year at the time of budget approval
by the District' s Board of Commissioners.
(2 ) Preliminary Review: As soon as reasonably
possible and no later than forty-five calendar
days after receipt of the notification indicating
the need for utility or sewer relocations, the
affected utility and/or sewer companies shall
provide the District with a preliminary engineer-
ing plan. That plan shall include the time frame
requirements for material acquisition and reloca-
tion work and spe~ial construction considerations
that may affect scheduling.
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Page 3
(3) Revisions: If revisions are made in the Di5-
trict's preliminary plan which alter the initial
utili ty or sewer relocation requirements, the
District will provide the affected utility and/or
sewer companies with revised plans. The affected
companies shall, as soon as reasonably possible
and no later than thirty calendar days after the
deli very of the revised plans, provide to the
District any revisions in the company's prelimi-
nary engineering plan or schedule.
(4 ) Final Notification: The .District will provide
the Utility Coordinating Council with final
notification of its intent to proceed with right-
of-way improvements and include the anticipated
date work will commence thereon. This notifica-
tion shall indicate that the work to be performed
will either be accomplished pursuant to the
preliminary plan or will be accomplished pursuant
to a revised plan.
(5) Relocation Activity: Unless otherwise agreed
upon, all utility or sewer relocations shall be
completed prior .to the anticipated date of com-
mencement of work on the right-of-way improve-
ments by the District.
A project construction control line will be
established in the field by the District. The
location of this control line will be established
after review with the utility and/or sewer com-
panies involved.
(6) Roadway Res~oration: Whenever possible, District,
utility and/or sewer company construction personnel
shall coordinate, their activities in an attempt to
.eliminate duplication of roadway restoration work.
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Resolution No. 330
Page' 4
SECTION 2. UTILITY OR SEWR RELOCATIONS REQUIRED AS A RESULT OF
RIGHT-OF-WAY IMPROVEMENTS PARTIALLY FUNDED BY ADA COUNTY HIGHWAY
DISTRICT
This section is applicable to those instances where utility or
sewer relocations are required because of improvements being
undertaken within the public rights-of-way which are partially
funded by the District and partially funded by another indi-
vidual, firm or entity.
A. Relocation Cost Responsibility: The responsibility
for costs associated with the relocation of utility
or sewer facilities shall be assigned as follows:
(1) Where the District requires that any facility
of a utility and/or sewer company be relocated
from its existing location to a new location with-
in the public right-of-way, the utility and/or .
sewer company shall be responsible for that por-
tion of the relocation costs that equals the per-
centage of the District i s participation in the
right-of-way improvement tosts. The remaining
utility and/or sewer relocation costs shall be
the responsibility of the individual, firm or
entity that provides funds for the balance of the
right-of-way improvement costs.
(2) If a utility or sewer company has facilities lo-
cated on private property, with a right-of-way
occupancy other than its right to locate in a pub-
lic right-of -way, and the Distric~ requires any
facility so located to be relocated, the actual
costs for such relocation shall be the responsi-
bility of the District and the individual, firm or
entity providing funds to accomplish the improve-
ments wi thin the public right-of -way. Such costs
shall be exclusive of profit allowances.
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Resolution No. 330
Page 5
B. Operational Procedure:
(1) Plan Review: The District will schedule a plan
review conference to which representatives of all
funding participants and affected utility and/or
sewer companies will be asked to attend. Within
thirty calendar days after the date of the plan
review conference, the utility and/or sewer com-
pany shall provide the District with a project
review statement outlining the utility or sewer
relocation work required, the estimated cost
thereof and the time required therefor. This
statement should include the date on which field
relocation work could commence and any other
special construction considerations that may
affect scheduling.
(2) Revisions: If revisions are made in the prelimi-
nary plans which alter the initial utility or
sewer relocation requirements, the District will
provide the affected companies with revised plans.
The affected companies shall, as soon as reason-
ably possible and no later than thirty calendar
days after deli very of the revised plans by the
District, provide the District with any revisions
to the initial project review statement.
(3 ) Final Notification: The District will provide
the Utility Coordinating Council with final noti-
fication of its intent to proceed with right-of-
way improvements and include the anticipated date
that work will commence thereon. This notifica-
tion shall indicate that the work to be performed
will either be accomplished pursuant to the pre-
liminary plan or will be accomplished pursuant to
a revised plan.
(4) Relocation Activity: Unless otherwise agreed
upon, all utility or sewer relocations shall be
completed prior to the anticipated date of com-
men cement of work on the right-of-way improvements.
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Resolution No. 330
Page 6
(5) Roadway Restoration: Whenever possible, District,
utility and/or sewer company construction person-
nel shall coordinate their activities in an at-
tempt to eliminate duplication of roadway restor-
ation work.
SECTION 3. UTILITY OR SEWER RELOCATIONS REQUIRED AS A RESULT OF
RIGHT-OF-WAY IMPROVEMNTS NOT FUNDED BY ADA COUNTY HIGHWAY DISTRICT
This section is applicable to those instances where utility or sewer
relocations are required because of improvements being undertaken
wi thin the public rights-of-way and do not involve participation
or funding by Ada County Highway District (District).
A.Relocation Cost Responsibility - The respònsibility
for costs associated with the relocation of utility
facili ties shall be assigned as follows:
(1) When utility or sewer relocations are required as
a result of improvements being made by a developer
within the public rights-of-way which were sched-
uled to have otherwise been made by the District
wi thin three years of the date said improvements
are actually comenced, then the responsibility
for the costs of utility relocations shall be in
~~J conformance with Section 1 of this Resolution.
(2) When utility or sewer relocations are required as
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a result of improvements being made by a developer
within the public rights-of-way which were not
scheduled to have otherwise been made by the Dis-
trict within three years of the date said improve-
ments are actually commenced, then the responsi-
bility for the costs of utility or sewer reloca-
tions shall be that of the developer.
(3 ) Roadway Restoration: Whenever possible, District i
utility and/or sewer company construction person-
nel shall coordinate their acti vi ties in an at-
tempt to eliminate duplication of roadway restor-
ation work.
489
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Resolution No. 330
Page 7
B.Operational Procedure:
(l) Plan Review: The developer shall provide the
District and all affected utility and/or sewer
companies with preliminary project plans and
schedule a plan review conference to be held at
the District offices. At the plan review oon-
ference each company shall have the right to
appeal, adjust and/or negotiate with the District
and developer on its own behalf. The utility and/
or sewer companies may operate as a technical com-
mit tee in comprehensive plan review with the Dis-
trict. Each utili ty ~nd/or' sewer company shall
provide the developer and the District with a
letter of review indicating the magnitude of and
time required for relocation of its facilities.
Said letter of review is to be provided wi thin
thirty calendar days after the date of the plan
review conference.
(2) Revisions: If revisions are made in the prelimi-
nary plans which modify the utility or sewer re-
location requirements, the companies shall be pro-
vided with such revised plans and have thirty
calendar days after receipt thereof to review and
comment thereon.
(3) Final Notification: The developer will provide
the District, utility and/or sewer companies with
final notification 6f its intent to proceed with
the right-of-way improvements and include the
anticipated date work will COmmence thereon. This
notification Shall indicate that the work to be
performed will either be accomplished pursuant to
the 'preliminary plan or will be accomplished pur-
suant to a revised plan.
(4) Relocation Activity: Unless otherwise agreed
upon, all utility or sewer relocations shall be
completed within the times established during the
plan review process.
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1 Resolutinn No. 330
Page 8
C. Signalized Intersections - Should any utility or sewer
relocation activity be in close proximity of an inter-
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section includéd in the District' s Traffic Planning
Policy for signalization or intersection turning move-
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ments, the developer, the utility and/or sewer company
shall meet with the District to determine the respons-
ible cost allocation for signalization or turning move-
ment modifications.
D.Trust Fund Deposits - In those cases where a developer
elects or is required to make a deposit to the Dis-
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trict i S Road Trust Fund Account to provide for future'.~ ';
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improvements within the public rights-of-way in lieu
of the immediate construction thereof i the developer
will be required to include in the deposit an amount
equal to 110% of the utility and/or sewer company's
estimated cost to accomplish the required utility and/
or sewer relocation work.
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Deposits, administration and disbursements of monies
for future utility or sewer improvements or relocations
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within the public rights-of-way shall be governed by
the provisions of the District i s then current Resolu-
tion regarding the Public Rights-of-Way Trust Fund.
SECTION 4. UTILITY OR SEWER FACILITY UPGRADES WITHIN THE PUBLIC
RIGHTS-OF-WAY
Wnen any utility or sewer company upgrades or modifies those
facilities locåted within the public rights-of-way for its own
purposes, all costs of the work associated therewith shall be the
sole responsibility of the utility company undertaking such
activity.
SECTION 5. REPEAL OF RESOLUTION NO. 232
Resolution No. 232, adopted by the Board of Commissioners of Ada
County Highway District on August 18, 1983, is hereby repealed.
491
Resolution No. 330
Page 9
ADOPTED this 25th day of September , 1986 by the
Board of Commissioners, Ada County Highway District.
( SEAL)
ATTEST;
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~¿d4,~s~. Winder, President
/i~ith A. La eleššary
492