20100809Appellant ACHD Reply Brief.pdf

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IN THE SUPREME COURT OF THE STATE OF IDAHO l8lBAUG -9 AM 8: 24
IDAHO PUSL ¡;;
UTILITIES COMr,iiSS¡ON
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IN THE MATTER OF THE APPLICA nON
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)
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Respondent on Appeal, )and ))
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Respondent/espondent on Appeal. ~
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ADA COUNTY HIGHWAY DISTRICT,
Petitionerl Appellant,
vs.
IDAHO POWER COMPANY,
Supreme Cour Docket No. 37294-2010
Idaho Public Utilities Commission No.
IPC-E-08-22
APPELLANT ACHD'S REPLY BRIEF
Appeal from the Idaho Public Utilties Commission
Merlyn W. Clark, ISB No. 1026
D. John Ashby, ISB No. 7228
HAWLEY TROXELL ENNIS & HAWLEY LLP
877 Main Street, Suite 1000
P.O. Box 1617 .
Boise,ID83701-1617
Attorneys for Petitionerl Appellant Ada County
Highway District
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APPELLANT ACHD'S REPLY BRIEF
Krstine 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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APPELLANT ACHD'S REPLY BRIEF
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
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I. INTRODUCTION ................................................................................................................... 1
II. STANDARD OF REVIEW ................................................................................................... 2
III. ARGUMENT..... ....... ...... ...... ...... ......... ............ ...... .......... .......... ..... ........... .... ....... ................ 2
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j A.Public Road Agencies Have Exclusive Jurisdiction Over Public
Rights-Of-Way, Including Authority To Regulate Utilty
Relocation And The Extent To Which Private Developers Must
Reimburse Utilties For The Cost Of Utilty Relocation................................. 2
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B.The IPUC Does Not Have Express Statutory Authority To
Regulate Utilty Relocation On Public Rights-Of-Way.................................. 5
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C.ACHD And The IPUC Canot Concurrently Regulate Utilty
Relocation On Public Rights-Of-Way, Especially Where
Resolution 330 And Rule H Conflct .............................................................. 9
D. The Savings (Preemption) Clause Is Backwards........................................... 13
E. Section 11 Of Rule H Exceeds The IPUC's Jursdiction .............................. 14
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F. This Appeal Raises A Judiciable Controversy.............................................. 17
IV. CONCLUSION .................................................................................................................. 20
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TABLE OF AUTHORITIES
Page
Cases
. -, Alpert v. Boise Water Corp.,
i 118 Idaho 136, 795 P.2d 298 (1990) ...................................................................................2, 5, 8
Grindstone Butte Mut. Canal Co. v. Idaho Public Utilties Comniission,
102 Idaho 175,627 P.2d 804 (Idaho, 1981)................................................................................6
Harris v. Cassia County,
106 Idaho 513, 681 P.2d 988 (1988)...................................................................................17,19CJ
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Idaho Power Co. v. Idaho Public Utilties Comm 'n,
102 Idaho 744, 639 P.2d 442 (1981) ....................................:................................................5, 18
Idaho State Bar Association v. Idaho Public Utilties Commission,
102 Idaho 672, 637 P.2d 1168 (Idaho, 1981)............................................................................20
Idaho State Homebuilders v. Washington Water Power,
107 Idaho 415, 690 P.2d 350 (Idaho, 1984)..............................................................................19
In re Application of Hayden Pines Water Co.,
111 Idaho 331, 723 P.2d 875 (1986) .........................................................................................18
Pacifc Gas & Electric Co. v. Dame Construction Co.,
191 CaL.App.3d 233, 236 CaL.Rptr. 351 (Cal. App. 1987) .......................................................... 7
State v. Poynter,
70 Idaho 438,220 P.2d 386 (1950) ...........................................................................................11
Vilage of Lapwai v. Allgier,
78 Idaho 124 (1956) ..................................................................................................................12
Washington Water Power Co. v. Kootenai Envtl. Allance,
99 Idaho 875, 591 P.2d 122 (l979)....................................................................................passim
Statutes
I.C. § 3-1 04 .....................................................................................................................:..............20
I.C. § 40-1310......................................................................................................................3,12,14
I.C. § 40-1310(8) .............................................................................................................................3
I.C. § 40-1406............................................................................................................................3, 12
I.C. § 40-210...........................................................................................................................passim
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I.C. § 61-502.................................................................................................................................5,6
I.C. § 61-629 ................................................................................................................17, 18, 19,20
I.C. § 62-705....................................................................................................................................8
I.C. § 67-5215(a) ...........................................................................................................................18
I.C. § 67-8202(2) ............................................................................................................................. 7
I.C. § 67-8202(5) .............................................................................................................................8
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I. INTRODUCTION
Appellant Ada County Highway District ("ACHD") submits this Reply Brief in response
to the briefing submitted by Respondents Idaho Power and the Idaho Public Utilties
Commission ("IPUC"). In their briefing, Idaho Power and the IPUC make several arguents as
to why the IPUC should be able to regulate whether private developers are required to reimburse
Idaho Power for its costs incurred in relocating its utilty lines withn public rights-of-way. The
fact remains, however, that the IPUC'sjurisdiction is extremely limited and that the Idaho
Legislature has not granted the IPUC authority to regulate utilty relocations within the public
rights-of-way. Instead, the Idaho Legislature has granted Public Road Agencies "exclusive"
jurisdiction over the public rights-of-way. In fact, the Idaho Legislatue recently enacted Idaho
Code § 40-210, which requires Public Road Agencies and related paries to minimize utilty
relocation costs. Rather than grant regulatory authority to the IPUC, the Idaho Legislature
reaffirmed that Public Road Agencies' have jursdiction over the rights-of-way. Id. With that
jursdiction, ACHD regulates utilty relocations within its highway district, including detaled
regulations as to when private developers are required to reimburse Idaho power and other
utilities for their utilty relocation costs.
and the Public Road Agencies' "exclusive" jurisdiction over public rights-of-way, the IPUC's
order approving Sections 10 and 11 of Idaho Power's Rule H Tarff should be set aside for lack
of jurisdiction.
APPELLANT ACHD'S REPLY BRIEF-l
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II. STANDARD OF REVIEW
Idaho Power and the IPUC have attempted to describe the applicable standard of review
as a stadard that would grant substantial deference to the IPUC. While IPUC findings of fact
may be entitled to deference, this appeal does not involve the review of any findings of fact.
Rather, the only question on appeal is whether Sections 10 and 11 of Rule H usur the exclusive
jursdiction granted to Public Road Agencies over public rights-of-way or are otherwise in
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excess of the IPUC'sjurisdiction.
The IPUC is given no deference with regard to its jursdiction. To the contrar, the IPUC
"exercises a limited jursdiction and nothing is presumed in favor of its jurisdiction." Alpert v.
Boise Water Corp., 118 Idaho 136, 140, 795 P.2d 298,302 (1990). The IPUC "has no authority
other than that expressly granted to it by the legislature." Id Because the IPUC's order
approving Sections 10 and 11 of Rule H exceeds the IPUC's jursdiction, it should be set aside.
Washington Water Power Co. v. Kootenai Envtl. Allance, 99 Idaho 875, 878, 591 P.2d 122, 125
(1979).
J III. ARGlJMENT
A.Public Road Agencies Have Exclusive Jurisdiction Over Public Rights-Or-Way,
Including Authority To Regulate Utilty Relocation And The Extent To Which
Private Developers Must Reimburse Utilties For The Cost or Utilty Relocation
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The only dispute in ths appeal is whether the IPUC has been granted express, statutory
authority to regulate utilty relocation on public rights-of-way. Before gettng to that dispute,
however, it is important to recognize an issue on which there is no dispute. All paries to this
appeal agree that Public Road Agencies have been statutorily granted exclusive supervision and
jurisdiction over all highways and public rights-of-way within their respective highway systems.
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See i. c. § 40-1310. That statutorily granted authority includes the "full power to . . . pass
resolutions and establish regulations." Id. at i.C. § 40-1310(8); see also i.C. § 40-1406.
Pursuant to this statutory authority, ACHD regulates the relocation of utilty lines on
public rights-of-way though its Resolution 330. R., VoL. III, pp. 484-492. Resolution 330,
which has been in effect without challenge for over 23 years, regulates utilty relocations on
public rights-of-way in two key ways. First, it regulates the day-to-day practical aspects of
utilty relocations. For example, it contains regulations regarding the notice that must be given
to affected paries, coordination meetings that affected paries must attend and various deadlines
applicable to the various entities involved in utilty relocations. Second, it regulates who pays
for utilty relocations, including detailed regulations as to whether a private developer is required
to reimburse public utilities for their utilty relocation costs. Specifically, Resolution 330
requires a private developer to reimburse utilties for the cost of utilty relocations that result
from public road projects made for the benefit of that private developer. Id. at p. 489. However,
Resolution 330 provides that the private developer is not required to reimburse a utilty, even if
the private developer pays for the public road project, if ACHD had already scheduled the public
road project to be made within three years after the project was commenced. Id.
The IPUC concedes that ACHD has authority to implement the above regulations,
including the authority to regulate whether a private developer is required to reimburse a public
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utilty for its relocation costs. See IPUC Brief, p. 21 (explaining that the IPUC canot "question
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a road agency's cost allocation rules, whether similar to Section 10 or not"). 1
While conceding that ACHD has authority to regulate whether a private developer must
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¡reimburse a utilty for its relocation costs, the IPUC asserts that it also has authority to reguate
whether Idaho Power can seek reimbursement of utilty relocation costs from private developers.
This arguent ignores the fact that Public Road Agencies' jurisdiction is "exclusive."
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over public rights-of-way, which includes the authority to assign financial responsibility for
utilty relocation costs, no other entity has jurisdiction to tae upon itself that same authority.
This conclusion follows from the following three steps of logic: (1) ACHD has "exclusive"
jurisdiction over the public rights-of-way within its highway district; (2) the ¡PUC concedes that
said exclusive jursdiction includes the authority to regulate utility relocation on public rights-of-
way, including the authority to determine whether a private developer must reimburse Idaho
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Power for all or a portion of its utilty relocation costs; and (3) if ACHD has exclusive
jurisdiction to determine whether a private developer must reimburse Idaho Power, then the
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1 Oddly, Idaho Power taes a different position. See Idaho Power Brief, p. 17 ("The authority
to require relocation does not give Public Road Agencies authority to decide if the utilty will
receive any subsequent reimbursement from third paries other than the general public if
private paries also benefit from the facilities relocation. "). This position fles in the face of
the fact that ACHD has been regulating all aspects of utilty relocation on public rights-of-
way, including reimbursement of utility relocation costs by private developers, for over 23
years though Resolution 330. Idaho Power and the IPUC have never questioned ACHD's
authority in that regard. Indeed, Rule H applies only to Idaho Power, not the many other
utilities that must relocate their utility lines at ACHD's request. Thus, ACHD would stil
allocate utilty relocation costs as to those many other utilities even if Rule H is not set aside.
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IPUC canot have jurisdiction to make that same determination (especially where it has no
express statutory authority and where its regulations conflct with ACHD's regulations).
B. The IPUC Does Not Have Express Statutory Authority To Regulate Utilty
Relocation On Public Rights-Of-Way
The ¡PUC's jurisdiction is extremely limited. As this Cour has held, "(t)he Idaho Public
Utilties Commission exercises limited jurisdiction and has no authority other than that expressly
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granted to it by the legislatue." Alpert v. Boise Water Corporation, 118 Idaho 136, 140, 795
P.2d 298,302 (1990) (citations omitted) (emphasis added). "It exercises a limited jursdiction
and nothng is presumed in favor of its jursdiction." Id. (emphasis added). Accordingly, this
Cour has consistently set aside ¡PUC orders where the IPUC canot point to a "specific statute"
that authorizes its action. See, e.g., Idaho Power Co. v. Idaho Public Utilties Comm 'n, 102
j Idaho 744, 750, 639 P.2d 442, 448 (1981).
Respondents do not address these authorities, nor do they point to any statute that
Ì expressly authorizes the IPUC to determine whether a private developer must reimburse a utilty
for its utility relocation costs or to otherwse regulate utilty relocations on public rights-of-way.
Rather, Respondents contend that the IPUC's authority to assign utility relocation costs should
be inferred from the ¡PUC's general ratemakng authority. See IPUC Brief, p. 11 ("The IPUC
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approved Idaho Power's line extension tarff because the purose and effect of the taiff falls
within the Commission's ratemakng authority. . . ."). However, the IPUC's ratemaking
authority, set forth in Idaho Code § 61-502, et seq., is limited to the "traditional and orthodox
ratemaking function." Washington Water Power Co. v. Kootenai Envtl. Allance, 99 Idaho 875,
882,591 P.2d 122, 129 (1979). Those statutes allow the IPUC to "fix" an appropriate rate ifit
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finds, after a hearng, that the rate charged by a utilty is "unjust, uneasonable, discriminatory or
preferential, or in any wise in violation of any provision oflaw." Id at § 61-502. The IPUC's
ratemaking authority would authorize it to determine whether utilty costs (including costs
associated with relocations) may be included in a utility's rate base, but that is the limit of the
IPUC's jurisdiction. See Washington Water Power Co., 99 Idaho at 880 (explaining that the
IPUC's ratemaking authority allows it to determine whether a utilties "expenditures may be
OJ classified as 'operating expenses' and thus passed on to the utility ratepayers"). The IPUC's
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ratemaking authority does not extend so far as to allow it to regulate the expenses charged to
i) Idaho Power by other paries.
Notably, Idaho Power cites Grindstone Butte Mut. Canal Co. v. Idaho Public Utilties
Commission, 102 Idaho 175, 177, 627 P.2d 804, 806 (Idaho, 1981) as an example of a case
"J setting fort the IPUC's "broad authority over a public utilty's rates and charges." See Idaho
Power Brief, p. 22. However, Grindstone was a traditional ratemaking case in which this Cour
affirmed an IPUC order "granting Idaho Power interim rate relief in the form ofa 7.09% uniform
J increase to all rates and charges." Id. ACHD acknowledges the IPUC's authority to set utility
rates. Such authority is expressly granted to the IPUC by statute. However, the IPUC has no
authority to allocate utilty relocation costs on public rights-of-way because no statute authorizes
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such action and because the allocation of utilty relocation costs falls within the Public Road
Agencies' exclusive jurisdiction over the rights-of-way.2
Respondents' briefs (especially Idaho Power's brief) are filled with a variety of public
1 policy arguments without citation to existing law. For example, Idaho Power discusses the
public policy behind growth paying for itself and why Idaho Power should be able to recover its
utilty relocation costs from private developers that are parially responsible for causing the need
for relocation. See Idaho Power's Brief, pp. 16-17. These expressions of public policy, whether
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sound or not, are irrelevant absent statutory adoption. There may be arguments as to why the
IPUC should have authority to regulate utilty relocations on public rights-of-way, but the fact of
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\the matter is that it does not.
Idaho Power cites ACHD's recent Impact Fee Ordinance as an example of ACHD
agreeing with the public policy of growth paying for itself. Notably, however, it was not ACHD
that came up with the public policy of growt paying for itself in the context of impact fee
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ordinances. Rather, the Idaho Legislatue codified that public policy in the Idaho Development
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Impact Fee Act. See I.C. § 67-8202(2) (setting fort the public policy that "those who benefit
from new growt and development pay a proportionate share of the cost of new public facilties
2 Idaho Power also cites a California case, Pacifc Gas & Electric Co. v. Dame Construction
Co., 191 Cal.App.3d 233,235,236 CaL. Rptr. 351, 352 (CaL. App. 1987) as authority that a
utilty can recover relocation costs from a private developer. However, that case made clear
that no governent entity required the utilty relocation. Id (citing a stipulation that "neither
the Board of Supervisors nor any other local governent agency specifically required Dame
to relocate the PG & E power poles and lines"). Rather, the utilty relocated its utilty line at
the direct request of a private developer. More importantly, that case did not involve a
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needed to serve new growth and development"). Moreover, the Idaho Legislature expressly
granted governent agencies like ACHD the authority to pass impact fee ordinances to furter
that public policy. Id. at § 67-8202(5).
There a two key differences between ACHD's Impact Fee Ordinance and the IPUC's
attempt to regulate utilty relocation. First, the Idaho Legislatue has not codified any public
policy that any pary other than utilties pay for utilty relocations resulting from public road
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projects. To the contrary, Idaho Code § 62-705 provides that the utilities may place their utilty
lines upon, along, over or under public rights-of-way only "as not to incommode the public use"
thereof. This Court has interpreted Idaho Code § 62-705 as requiring that, upon demand, a
utilty "must move its facilties at its expense." Second, unlike the Idaho Development Impact
Fee Act, which grants express authority to ACHD to pass impact fee ordinances, the Idaho
Legislature has not granted the IPUC any authority to regulate whether third paries must
\ reimburse Idaho Power for its utilty relocation costs on public rights-of-way. Instead, thatj
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authority has been granted to the Public Road Agencies.
l,Idaho Power's arguents highlight the reason why the IPUC's order must be set aside-
because the IPUC lacks express statutory authority to regulate utilty relocations on public rights-
of-way. As this Cour has held, "(t)he Idaho Public Utilties Commission exercises limited
jursdiction and has no authority other than that expressly granted to it by the legislatue."
Alpert, 118 Idaho at 140 (emphasis added). "If the legislative branch desires the Public Utilities
jurisdictional dispute. There was no highway district involved with express authority to
regulate and its own regulations as to who pays for utilty relocation.
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Commission to have such authority, it must be provided by precise language." Washington
Water Power Co., 99 Idaho at 882 (emphasis added). If the legislature wants to grant the IPUC
authority to regulate utilty relocation on public rights-of-way, it would do so. All it would have
to do is amend the statutes setting fort the IPUC's authority or the statutes addressing utilty
relocation costs to add a specific provision granting the IPUC authority to allocate utilty
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. ¡ relocation costs on public rights-of-way. Indeed, just last year (undoubtedly after lobbying by
"'1 the utilty industr) the legislature enacted a new statute addressing utilty relocations on public
rights-of-way. See I.C. § 40-210. That statute requires Public Road Agencies and related paries
to work together to minimize utilty relocation costs associated with road projects on public
rights-of-way. Conspicuously absent from that statute is any mention of the IPUC, much less a
specific provision authorizing the ¡PUC to allocate utilty relocation costs. Instead, the statute
reaffirms that the regulation of utilty relocations on pubic rights-of-way falls under the
) jurisdiction of the Public Road Agencies. See ide (stating that the statute is not intended to
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"diminish or otherwise limit the authority of this state, highway distrct or other political
J subdivision having jursdiction over the public right-of-way"). Given the absence of any
statutory grant of authority to the IPUC to regulate utilty relocations on public rights-of-way, the
IPUC's order should be set aside for lack of jursdiction.
C. ACHD And The IPUC Cannot Concurrently Regulate Utilty Relocation On Public
Rights-Of-Way, Especially Where Resolution 330 And Rule H Conflct
Much of the IPUC's brief is spent attempting to minimize the conflcts between ACHD's
Resolution 330 and the IPUC's Rule H. However, the IPUC concedes that the two sets of
regulations conflct in one key aspect that is paricularly important for this appeaL. See IPUC
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Brief, p. 16. In the event that a private developer fuds a public road project, both Resolution
330 and Rule H generally would require that developer to reimburse Idaho Power for utilty
relocation costs caused by that public road project. Compare R., VoL. III, p. 489 and R., VoL. IV,
p.677. However, Resolution 330 makes an exception to that general rule where the public road
project that resulted in the need for utilty relocation was "scheduled to have otherwse been
made by (ACHDJ within three years of the date said improvements are actually commenced."
See R., VoL. III, p. 489.
ACHD maintains a detailed schedule of the public road projects it expects to perform
over the next several years. Often, a private developer asks ACHD to perform a public road
project sooner than ACHD has planed. ACHD may agree to perform a public road project
sooner than it had planed in exchange for the private developer paying for a percentage of the
public road project. For example, ACHD may agree to commence in 2010 a public road project
that it had previously scheduled to commence in 2012 in exchange for the private developer
paying a portion of the cost of the public road project. In such a case, there is a significant
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J conflct between ACHD's Resolution 330 and the IPUC's Rule H. Under ACHD's Resolution
330, the private developer would have no obligation to reimburse Idaho Power. Under Rule H,
however, the private developer would be required to reimburse Idaho Power for a portion of its
I. j utility relocation costs associated with the public road project.
While Respondents generally assert that Rule H has no affect on Resolution 330, both
Idaho Power and the IPUC insist that Rule H applies even where it conflcts with Resolution
330. For example, the IPUC recognizes that Rule H's cost allocation provision conflcts with
Resolution 330 with regard to any public road project that is funded by a private developer but
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that ACHD would have commenced within three years. See IPUC Brief, p. 16. While
recognizing the conflict and recognizing that Rule H "canot overrle ACHD's resolution," the
IPUC stil asserts that "(u)nder Idaho Power's tariff provision the Company should seek
reimbursement from the developer so that these costs are not recovered in customer rates." Id;
see also Idaho Power Brief, p. 25 ("If the Public Road Agency's ordinance governing the initial
relocation cost allocation is different than Section 10 governing the utilty's subsequent
reimbursement of its costs, so be it. They operate sequentially. . . .").
In other words, Respondents assert that Rule H applies despite its conflcts with
Resolution 330. Such concurent jurisdiction is not permitted. State v. Poynter, 70 Idaho 438,
220 P.2d 386 (1950) (explaining that there are circumstances under which two governent
entities can have concurrent jurisdiction over the same subject matter, but only where the
"regulations or law are not in conflct").
Another significant conflct that exemplifies why the Public Road Agencies and the IPUC
canot have concurent jurisdiction over utilty relocations on public rights-of-way is the
question of which entity would resolve any conflcts. The IPUC accuses ACHD of "fabricating"
an arguent that the IPUC would have jurisdiction to resolve conflcts arising out of utilty
relocations. ACHD did no such thing. Rather, Idaho Power, the drafer of Rule H, is the pary
that contends that IPUC has conflct resolution authority. See R., VoL. III, p. 535. In fact, Idaho
Power repeats that assertion in its appellate briefing. See Idaho Power Brief, pp. 30-31 ("If a
dispute between Idaho Power and a private beneficiary should arise concerning cost recovery by
Idaho Power, the Commission would have jurisdiction to resolve the reimbursement dispute.").
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Who else would have dispute resolution authority over disputes arising out of the application of
Rule H if not the IPUC?
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i)Especially in light of the differences between Resolution 330 and Rule H, it is easy to see
how disputes will arise. Disputes are paricularly likely to arse in the case of a private developer
that pays for a percentage of a public road project that ACHD intended to perform within the
next three years. That developer would go into the project having been expressly told by
f ACHD's Resolution 330 (which is an action of
the state pursuant to ACHD's police power as per
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Vilage of Lapwai v. Allgier, 78 Idaho 124, 128 (1956)) that it would have no obligation to
reimburse Idaho Power or other utilities for the utilty relocation costs. See R., VoL. III, p. 489.
After completing the project, however, the IPUC would require the private developer to
reimburse Idaho Power pursuant to the cost allocation provisions in Rule H. See IPUC Brief, p.
J 16 and Idaho Power Brief, p. 25 (asserting that Rule H would stil require the private developer
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to reimburse Idaho power, despite Resolution 330's provision to the contrar). Thus, the private
developer would have been told by one state entity (ACHD) that it has no reimbursement
obligation and by another state entity (the IPUC) that it must reimburse Idaho Power. In light of
these conflcts, there can be no concurent jurisdiction.
Moreover, two separate statutes prohibit concurent jurisdiction over utilty relocations
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j on public rights-of-way. First, Idaho Code § 40- 1310 grants Public Road Agencies "exclusive"
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jurisdiction over public rights-of-way. Two agencies canot have concurent jurisdiction over a
subject matter where one agency has been statutorily granted "exclusive" jurisdiction. Second,
Idaho Code § 40-1406, which applies to county-wide highway districts like ACHD, expressly
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provides that any laws in conflct with the county-wide highway distrct's exclusive jursdiction
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are superseded:
The highway commissioners of a county-wide highway distrct
shall exercise all of the powers and duties provided in chapter 13
of this title. . .. Wherever any provisions of the existing laws of
the state ofIdaho are in confict with the provisions of this chapter,
the provisions of this chapter shall control and supersede all such
laws... .
For each of these reasons, Public Road Agencies have the exclusive jursdiction to
;-1 regulate utilty relocation on public rights-of-way and the IPUC has no authority to exercise
concurent jursdiction.
D. The Savings (Preemption) Clause Is Backwards
Section 10 of Rule H provides that it does not apply to utilty relocations within public
rights-of-way if a Public Road Agency has adopted regulations "that are substatially similar to
the rules set out in Section 10 of Rule H." R., VoL. iv, p. 678. The clear intent of this provision
J is that Rule H would govern over any conficting regulations adopted by a Public Road Agency.
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Even if a Public Road Agencies' regulations were "substantially similar" (whatever that.means)
to Rule H, the Public Road Agency would apparently be precluded from amending its
regulations in the futue in any maner that is not "substantially similar" to rule H. This is yet
another example of how Rule H usurs the Public Road Agencies' exclusive jurisdiction.
At page 20 of its Brief, the IPUC states that "the Savings Clause means that Section 10 of
j the tariff does not apply when ACHD directs road improvements in Idaho Power's service area,
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foreclosing any possibility of a conflct between Resolution 330 and Section 10." If this were
really the case, there would be no need for this appeaL. However, both Idaho Power and the
APPELLANT ACHD'S REPLY BRIEF -13
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IPUC insist that the cost allocation provisions in Rule H would stil apply despite their conflict
with Resolution 330's cost allocation provisions. See IPUC Brief, p. 16; Idaho Power Brief, p.
25.
The easiest way to resolve this appeal would be to remand with instrctions for the IPUC
to clarify that Rule H shall not apply to utilty relocations within public rights-of-way in any
jurisdiction where a Public Road Agency regulates utilty relocations. For example, the
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applicable portion of Section 10 of Rule H could be strcken and amended as follows:
This Section shall not apply to utility Relocations within public
road rights-of-way of Public Road Agencies which have adopted
legally binding guidelines rules or regulations for the allocation of
utilty relocations costs between the utilty and other paries th
afe substanially similar to the rules set out in 8ection i 0 of Rule
H. In such a case, the Public Road Agencies' rules or regulations
shall govern.
Again, the Public Road Agencies' jursdiction is "exclusive," so the IPUCcanot
regulate utilty relocations on public rights-of-way in any jurisdiction in which a Public Road
Agency regulates utilty relocations. It does not matter whether the Public Road Agencies'
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relocations within its jurisdiction pursuant to Idaho Code § 40-1310, Rule H canot apply in that
jurisdiction.
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i,j E.Section 11 Of Rule H Exceeds The IPUC's Jurisdiction
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Idaho Code § 40-210 expresses the "intent of the legislature that the public highway
agencies and utilities engage in proactive, cooperative coordination of highway projects through
a process that wil attempt to effectively minimize costs, limit the disruption of utilty services,
and limit or reduce the need for present or future relocation of such utility facilties." Id
APPELLANT ACHD'S REPLY BRIEF - 14
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Accordingly, Section 40-210 provides that Public Road Agencies and affected utilties "shall use
their best efforts to find ways to (a) eliminate the cost to the utility of relocation of the utilty
facilties, or (b) if elimination of such costs is not feasible, minimize the relocation costs to the
maximum extent reasonably possible."
Even though Idaho Code § 40-210 does not grant any authority to the IPUC, the IPUC
has assumed jurisdiction to enforce the Public Road Agencies' compliance with this statute
through Section 11 of Rule H. That Section provides:
Pursuant to Idaho Code § 40-210, the Company wil
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 distrbution facilties.
The Company and other parties in the planng process wil use
their best efforts to find ways to eliminate the costs of relocating
utility facilties, 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 (emphasis added).
Under this provision, the IPUC attempts to take upon itself the authority to police
whether Public Road Agencies are complying with their statutory duty to minimize relocation
costs. Faced with the clear absence of authority to police the Public Road Agencies' compliance
with Idaho Code § 40-210, the IPUC misconstres the clear language of Section 11 and attempts
to distance itself from the position it took at the reconsideration hearng. The IPUC now
characterizes Section 11 as merely expressing an obligation on the par of Idaho Power to
minimize relocation costs and asserts that Section 11 "has no effect on ACHD.'~ See IPUC Brief,
p.22. Idaho Power offers the same mischaracterization. See Idaho Power Brief, p. 25 (asserting
APPELLANT ACHD'S REPLY BRIEF - 15
44805.0001.2001481.1
that Section 11 merely "directs the Company to participate in public road project design or
development meetings to eliminate or minimize relocation costs in pubic road rights-of-way."
The characterization of Section 11 now offered by Idaho Power and the IPUC ignores the
clear language of Section 11, which purorts to impose obligations not just on Idaho Power, but
on Public Road Agencies. Section 11 requires Idaho Power to paricipate in project design or
development meetings with Public Road Agencies. It then goes on to require that "(t)he
d~~l Company and other paries in the planning process will use their best efforts to find ways to
eliminate the costs of relocating utility facilties, or if elimination is not feasible, to minimize the
relocation costs to the maximum extent reasonably possible." R., VoL. IV" pp. 659-660; 678
(emphasis added).
At the October 13,2009 reconsideration hearing, the IPUC expressly stated its position
that it has authority to regulate and determine whether Public Road Agencies have satisfied the
) requirements ofIdaho Code § 40-210. See, e.g., Trascript of October 13,2009 hearing, p. 52,
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LL. 2-11 (explaining ACHD's duties under Idaho Code § 40-210 to eliminate or minimize
J 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 utilty asserted
that relocation costs are not being minimized, and expressing the concern that "you can literally
wrte off provisions (a) and (b) (ofIdaho Code § 40-210) unless there's something where
somebody can have some sort of option to mitigate an arbitrary or capricious decision by
ACHD.").
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APPELLANT ACHD'S REPLY BRIEF - 16
44805.0001.2001481.1
The IPUC has no statutory authority to adopt a rule requiring Public Road Agencies to
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minimize relocation costs or to otherwse police Public Road Agencies' compliance with Idaho
Code § 40-210. Accordingly, Section 11 of Rule H should be set aside.
F. This Appeal Raises A Judiciable Controversy
In this appeal, ACHD asks this Cour to set aside Sections 10 and 11 ofIdaho Power's
Rule H Tarff, which the IPUC approved in Order No. 30955. The IPUC now contends that ths
appeal should be dismissed for lack of a 'Judicial controversy." Specifically, the IPUC contends
that "(t)he relief ACHD requests in essence is in the nature of a declaratory judgment" and cites
.f..'........).............I' ..
'i.-,the general rule that "a declaratory judgment can only be rendered in a case where an actual or
judiciable controversy exists." See IPUC Brief, p. 24 (citing Harris v. Cassia County, 106 Idaho
513,516,681 P.2d 988 (1988)). As explained in Harris, the "judicial controversy" requirement
requires that there be a controversy that is "definite and concrete, touching the legal relations of
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paries having adverse legal interests. . . . It must be a real and substantial controversy admitting
of specific relief though a decree of a conclusive character, as distinguished from an opinion
advising what the law would be upon a hypothetical state of facts." Id.
As an initial matter ACHD has not broughta declaratory judgment action. Rather,
ACHD has brought a direct appeal to this Cour pursuant to Idaho Code § 61-629 to review
whether the IPUC has authority to issue its order. This Cour has jurisdiction to review any order
of the IPUC. See Idaho Constitution, Aricle V, § 9 ("The Supreme Cour shall have jurisdiction
to review, upon appeal, . . . any order of the public utilties commission."). IPUC orders are
reviewed directly by the Idaho Supreme Court and are not subject to judicial review under the
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Administrative Procedures Act. In re Application of Hayden Pines Water Co., 111 Idaho 331,
APPELLANT ACHD'S REPLY BRIEF - 17
44805.0001.2001481.1
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334, 723 P.2d 875,878 (1986) (citing I.C. § 67-5215(a)). This Cour's review is set fort in
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Idaho Code § 61-629, which states in relevant par:
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rTJhe appeal shall be heard on the record of the commission as
certified by it. The review on appeal shall not be extended fuher
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 appellant under the
constitution of the United States or the state ofIdaho. Upon the
hearing the Supreme Cour shall enter judgment, either affirming
or setting aside in par the order of the commission.
Id. (emphasis added).
The ¡PUC's argument would deprive ACHD of its right to the Idaho Supreme Cour's
direct review of the IPUC's order. Under the IPUC's arguent, ACHD would not be entitled to
review of the IPUC's order, but instead would have to wait until some later date and bring a
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declaratory judgment action, presumably to a district cour.
This appeal seeks the very relief that is authorized under Idaho Code § 61~629. That
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J commission has regularly pursued its authority." Under that stadard, this Court determines
whether the IPUC's order is in excess of its 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.
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Kootenai Envtl. Allance, 99 Idaho 875,878, 591 P.2d 122, 125 (1979). If the ¡PUC's order
exceeds its limited jurisdiction, the remedy provided by Idaho Code § 61-629 is that the IPUC's
order be set aside. See also Washington Water Power Co, 99 Idaho at 878 (setting aside an
¡PUC order where the ¡PUC was "without jurisdiction to issue the orders whÌch are the subject of
this appeal"). That is exactly the relief that ACHD seeks here. ACHD contends that the ¡PUC
APPELLANT ACHD'S REPLY BRIEF - 18
44805.0001.2001481.1
lacks authority to regulate utilty relocation on public rights-of-way and that its attempt to do so
though Rule H usurs ACHD's statutory "exclusive" jursdiction over regulation of the public
rights-of-way. The remedy sought by ACHD is not a declaratory judgment, but rather an order
setting aside the portion of the IPUC's order that approves Sections 10 and 11 of Rule H.
This appeal easily satisfies the "judicial controversy" requirement, which requires a
dispute "touching the legal relations of paries having adverse legal interests" though which a
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pary may obtain "specific relief through a decree ofa conclusive character." Harris, 106 Idaho
at 516. This controversy "touch ( es) the legal relations of paries having adverse legal interests"
because ACHD contends that the IPUC order usurps its exclusive jursdiction over public rights-
of-way. If ACHD prevails, it will obtain "specific relief through a decree of a conclusive
character" in the form of an order setting aside the portion of the IPUC's order that approves
Sections 10 and 11 of Rule H" - the relief provided for in Idaho Code § 61-629.
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While ACHD has raised some hypothetical examples in its briefing, the purose of those
examples is merely to help this Cour see the practical effect Rule H will have on ACHD's
" i exclusive jurisdiction over public rights-of-way and its abilty to effciently manage public road
projects. The IPUC's order, itself, usurs ACHD's exclusive jursdiction.
Notably, this Cour has reviewed and set aside many IPUC orders that, like Rule H,
\j establish IPUC rules that are beyond the IPUC's jurisdiction. For example, in Idaho State
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Homebuilders v. Washington Water Power, 107 Idaho 415, 416, 690 P.2d 350,351 (Idaho,
1984), a homebuilder association brought an appeal to review an IPUC order establishing a rule
that would impose a non-recurring charge of $50 per kilowatt on the installation of or conversion
F .1.
APPELLANT ACHD'S REPLYBRIEF-19
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to electric space heating. This Cour set aside the IPUC's order on grounds that it "was an act in
excess of(the IPUC's) authority." Id
Similarly, in Idaho State Bar Association v. Idaho Public Utilties Commission, 102
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Idaho 672, 673, 637 P.2d 1168, 1169 (Idaho, 1981), the IPUC issued orders approving new
IPUC rules of practice and procedure concerning appearances and representation of paries
before the IPUC. Specifically, the Idaho State Bar contended that those rules would allow for
the unauthorized practice oflaw in violation ofIdaho Code § 3-104. Much like ACHD's
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argument here, the Idaho State Bar contended that the IPUC's rules "constitute a usuration of
the authority of this cour to define and regulate the practice of law." Id, 102 Idaho at 674. Ths
Cour set aside portions of the IPUC's order on grounds that the IPUC was "without authority to
adopt those portions of Rule 4.3(b) and (c) which permit representation ofa utility, motor carer
1 or non-profit organization by a non-attorney unconnected with the entity." Id at 677.
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ACHD's appeal is properly before this Court for the same reasons the appeals by the
Idaho State Homebuilders Association's and the Idaho State Bar Association's appeals were
J properly before this Cour. ACHD seeks the review provided for under Idaho Code § 61-629 to
determine whether the IPUC has jurisdiction to adopt Sections 10 and 11 of Rule H. If the ¡PUC
lacks jursdiction, this Cour should set aside the IPUC's order.
IV. CONCLUSION
The Idaho Legislature granted Public Road Agencies "exclusive" jursdiction over the
public rights-of-way. As the IPUC has conceded, that exclusive jursdiction includes the
authority to allocate utilty relocation costs between utilties and private developers.
Accordingly, no other entity can have concurent jurisdiction to determine whether private
APPELLANT ACHD'S REPLY BRIEF - 20
44805.0001.2001481.1
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developers are required to reimburse Idaho Power for its utilty relocation costs. If the Idaho
Legislature had wanted the IPUC to have jursdiction to allocate utilty relocation costs, it would
have expressly granted that authority to the IPUC. In approving Sections 10 and 11 of Idaho
Power's Rule H Tariff, the IPUC has acted in excess of its limited jursdiction and has attempted
to usur the Public Road Agencies' exclusive jurisdiction over public rights-of-way. Given the
absence of express statutory authority, the IPUC's order approving Sections 10 and 11 ofIdaho
Power's Rule H Tariff should be set aside. ø-
RESPECTFULL Y SUBMITTED THI¿ day of August, 2010.
HA WLEY TROXELL ENNIS & HAWLEY LLP
By
. Clark, ISB NO.1 026
D. John Ashby, ISB No. 7228
Attorneys for Petitioner! Appellant Ada County
Highway District
APPELLANT ACHD'S REPLY BRIEF - 21
44805.0001.2001481.1
\'CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this k day of August, 2010, I caused to be served a tre
copy of the foregoing APPELLANT ACHD'S REPLY BRIEF by the method indicated below,
and addressed to each of the following:
r, l
Jean D. Jewell
Commission Secreta
IDAHO PUBLIC UTILITIES COMMISSION
P.O. Box 83720
Boise, ID 83720.0074
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Krstine Sasser
IDAHO PUBLIC UTILITIES COMMISSION
P.O. Box 83720
Boise, ID 83720-0074
Lisa Nordstrom
Baron L. Kline
IDAHO POWER COMPANY
P.O. Box 70
Boise, Idaho 83707-0070
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I J Scott Sparks
Gregory W. Said
IDAHO POWER COMPANY
P.O. Box 70
Boise, Idaho 83707-0070
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Michael C. Creamer
GIVENS PURSLEY, LLP
601 W. Banock St.
Boise, ID 83702
APPELLANT ACHD'S REPLY BRIEF - 22
~.S. Mail, Postage Prepaid
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E-mail
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44805.0001.2001481.1
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Micheal Kur, Esq.
Kur 1. Boehm, Esq.
BOEHM, KURTZ & LOWRY
36 E. Seventh Street, Suite 1510
Cincinnati, OH 45202
"J"._C',',
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Matthew A. Johnson
Davis F. VanderVelde
WHITE PETERSON GIGRA Y ROSSMAN
NYE & NICHOLS, P.A.
5700 E. Franlin Road, Suite 200
Nampa, ID 83687
Kevin Higgins
ENERGY STRATEGIES, LLC
Parkside Towers
215 S. State Street, Suite 200
Salt Lake City, UT 84111
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APPELLANT ACHD'S REPLY BRIEF - 23
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