20100816Amicus Curiae Brief.pdf

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I IN THE SUPREME COURT OF THE STATE OF IDAHO
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ij IN THE MATTER OF THE APPLICATION OF )
IDAHO POWER COMPANY TO MODIFY ITS )
RULE H LINE EXTENSION TARF RELATED)
TO NEW SERVICE ATTACHMENTS AND )
DISTRIBUTION LINE INSTALLATIONS )
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ADA COUNTY HIGHWAY DISTRICT,
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Petitioner-Appellant,
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IJ IDAHO PUBLIC UTILITIES COMMISSION
and IDAHO POWER COMPANY,
Respondents on AppeaL.
-S uf.-E: - ID- 0 ~
Supreme Cour Docket No. 37294-2010
(IPUC Case No. IPC-E-08-22)
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Appeal from the Idaho Public Utilities Commission
Commissioner Marsha H. Smith, Presiding
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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, Idaho 83701-1617
Attorneys for Petitioner-Appellant Ada County
Highway District¡..
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DAVID E. WYNKOOP (ISB No. 2429)
SHERER & WYKOOP, LLP
730 N. Main Street
P.O. Box 31
Mendian, Idaho 83642
Attorneys for Amicus Curiae
Idaho Association of Highway Districts
Association of Idaho Cities
Idaho Association of Counties
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LA WRNCE G. WASDEN
Attorney General
WELDON B. STUTZMAN (ISB No. 3283)
KRSTINE A. SASSER (ISB No. 6618)
Deputy Attorneys General
Idaho Public Utilities Commission
472 West Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
Attorneys for Respondent Idaho Public Utilties
Commission
LISA D. NORDSTROM (ISB No. 5733)
DONOVAN E. WALKER (ISB No. 5921)
Idaho Power Company
1221 West Idaho Street
P.O. Box 70
Boise, Idaho 83707 .
Attorneys for.Respondent Idaho Power Company
TABLE OF CONTENTS
INTEREST OF THE AMICUS CURAE .. ....... ................. ... 1
ARGUMENT ........................................ .-e..................... 2
CONCLUSION ... .................................... ...... ......... ...... 6
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Cases
TABLE OF CASES AND
AUTHORITIES
Alpert v. Boise Water Corporation, 118 Idaho 136, 140, 795
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P.2d 298,302 (1990) ......................................................
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Page(s)
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Pages
Statutes and Rules
Idaho Code §31-805 ... .............................................1
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~1 Idaho Code §40-201 .................................................1
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Idaho Code §40-604 .................................................1
Idaho Code §40-131 0 ................................................ 2, 3OJ
Idaho Code §40-1312 ................................................3,4
Idaho Code §40;. 1406 ................................................ 6
Idaho Code §50-311 ................................................. 1
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J Idaho Code §50-313 .................................................1
Idaho Code §50-314 ..... .......... ...... .... ........... ......... ....1
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The Idaho Association of Highway Distrcts, the Association of Idaho Cities and the
Idaho Association of Counties (collectively, the "Associations"), by and though their counsel
of record, jointly submit this Amicus Brief in the above-entítled matter.
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I. INEREST OF THE AMICUS CURAE
The Idaho Association of Cities is an association of 190 cities thoughout the state of
Idaho. The Idaho Association of Counties is an association of 44 counties thoughout the state
ofIdao. Idaho Code § 40-201 provides for "a system of state highways in the state, a system
of county highways in each county, a system of highways in each highway -distrct, and a
system of highways in each city." Accordingly, the varous cities and counties in Idaho have
formed city street deparments, county road deparents and highway districts (collectively,
"Local Road Agencies") in the state of Idaho. The Idaho Association of Highway Distrcts is an
association of 64 highway districts. Many counties have multiple highway districts, and two
counties have a single, county-wide highway distrct. For example, the Ada County Highway
Distrct ("ACHD"), the Appellant in this matter, is a single, county-wide highway distnct with
responsibility over all public nghts-of-way within the City of Boise, Garden City, the City of
Mendian, the City of Eagle the City of Star and the City ofKuna, all located withi Ada
County.
Idaho cities have control of and authority to regulate city streets pursuant to Idaho Code
§§ 50-311, 50-313 and 50-314. Likewise, Idaho counties have control of and authonty to
regulate county roads pursuant to Idaho Code § § 31-805 and 40-604.
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AMCUS CUR BRIF - 1
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As set forth below, the Associations support Appellant Ada County Highway Distrct
("ACHD") in its appeal from the Idaho Public Utility Commssion's ("IPUC") order approvig
the portons of Idaho Power's Rule H tariff related to the relocation of utilty lines on public
nghts-of-way. It is important that the Cour understad the signficant impact that Section 10
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of Rule H will have thoughout Idaho. Section 10 of Rule H affects all Local Road Agencies in
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Idaho. The Associations are concerned that the IPUC has purorted to usur the exclusive
junsdictions of Local Road Agencies over the public rights-of-way within their respective
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junsdictions. The Associations are also concerned that Section 10 of Rule H will impede the
Local Road Agencies' ability to effciently manage their road projects.
II. ARGUMENT
Idaho Code § 40-1310 grants highway distrcts "exclusive junsdiction over all highway
distrcts and public rights-of-way withn their highway system." This exclusive jursdiction
includes the "ful power to ... establish use stadards, pass resolutions and establish
regulations." Id at § 40-1310(8). Pursuat to this broad grant ofauthonty, many Idaho
highway distncts have regulated the relocation of utilty lines on public nghts-of-way within
their respective junsdictions. ACHD's Resolution 330 is just one example of how one highway
distrct has regulated utility relocation on public rights-of-way within its highway distnct.
Likewise, many Idaho cities and counties regulate the placement of utilities and the relocation
of utilties as par of their development policy manuals.
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ANCUS C~ BRfF - 2
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As a legal matter, this case is very simple. The Local Road Agencies have been
statutorily grted broad and exclusive jursdiction over public nghts-of-way, including express
authonty to establish regulations. See e.g. Idaho Coçle §§ 40-1310,40-1312. In contrast, the
IPUC canot point to any statutory authorization to regulate utility relocation on public rights-
of;.way. Without express statutory authority, Section 10 of Rule H is beyond the IPUC's
jurisdiction. See Alpert v. Boise Water Corporation, 118 Idaho 136, 140, 795 P.2d 298,302
(1990) ("The Idaho Public Utilties Commission exercises limited jursdiction and has no
authority other than that expressly granted to it by the legislatue."). In short, the Local Road
Agencies have jursdiction to regulate utility relocation on public rights-of-way, and the IPUC
does not. Accordingly, Section 10 of Rule H should be set aside.
In addition to the IPUC's lack of jurisdiction, there are several practical reasons why the
Local Road Agencies are concerned about Section 10 of Rule H. For example, the legislatue
granted highways distncts "exclusive" jursdiction over public nghts-of-way "to the end that
the control and administration of the distncts may be effcient." Idaho Code § 40-1312
(emphasis added). When a Local Road Agency regulates utility relocation, it generally
reguates the relocation of all utilities (electnc power, gas, telephone, water, sewer, cable, fiber-
optic, etc.) and sewer lines the same way. Through comprehensive regulations of all utilty
relocations, a Local Road Agency is able to effciently manage its road projects that may
involve the relocation of varous different utility lines and services. Any concerns or disputes
related to utilty relocation are resolved by the Local Road Agencies.
AMCUS CUR BRIF - 3
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Section 10 of Ru1e H would impede the Local Road Agencies' abilty to effciently
manage their road projects in that it would tae the regulation of just one type of utilty
relocation (electrc power) out of the hands of the Local Road Agencies and into the hands of the
IPUC In the event of a road project that requires the relocation of mu1tiple utilty lines and
services, the Local Road Agencies would make decisions regarding the relocation of gas,
telephone, water, sewer, cable, fiber-optic and other utility facilties, but the IPUC wou1d make
decisions regarding Idaho Power facilties. That is a recipe for ineffciency, confict and other
general problems.
In fact, it must be noted that Rule H applies only to Idaho Power, not to all electrc power
utilties in Idaho. Several Local Road Agencies in Idaho have jursdiction over rights-of-way
involving electrc utility lines owned by other electrc power utilities, including A vista, Atlanta
Power Company and PacifiCorp d//a Rocky Mountain Power. Rule H applies only to Idaho
Power, and the Associations are not aware of similar Tanffs applicable to the other public
utilties. Thus, uness Section 10 ofRu1e H is set aside, the IPUC will regulate utilty relocations
involving Idao Power, but the Local Road Agencies will continue regulating utilty relocations
involving other electrc power utilties and all other tyes of utilties and services. Again,
contrar to the intent of Idaho Code § 40-1312, that scenano does not provide effciency to the
Local Road Agencies.
The ¡PUC not only lacks the authority to regu1ate utility locations and relocations within public
nghts-of-way, the IPUC also lacks the expertse to so regulate. The standards and practices for
locating and relocating utilty facilities are unque to each communty.
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AMCUS CUR BRIF - 4
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Idaho's Local Road Agencies have developed considerable expertise over many years pursuat
to their statutory authority and in consideration of the unque circumstances and needs of each
local communty. Thus, the most effcient way to regulate utility relocations is to utilze the
existig expertse of Idaho's Local Road Agencies; not to expand the powers of and create new
and conficting regulatory authority at the IPUC.
From the perspective of the Associations, the most senous problem with Section 10 of
Rule H is found in the following provision:
This Section (10) shall not apply to utility relocations withn
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 and Third-Par
Beneficiares that are substantially similar to the rules set out in
Section 10 of Rule H.
(Referred to hereinafer as the "Preemption Clause") R., VoL. III, p. 427.
Under ths provision, regulations adopted by Local Road Agencies are purortedly
superseded by Section 10 of Rule H uness they are "substantially similar" to Section 10 of
Rule H. As an initial matter, it is entirely unclear whether the regulations adopted by varous
Local Road Agencies are "substantially similar" to Section 10 of Rule H. Some are simlar in
some ways, but none are identicaL. More importantly, this provision usurs the Local Road
Agencies' exclusive jursdiction to reguate the public nghts-of-way withn their respective
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superseded by any conflcting IPUC order. If anytng, the preemption of regulations should
go the opposite way. Given the Local Road Agencies' statutonly granted authonty to pass
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reguations with regard to public rights-of-way and the IPUC's lack of authority, any
regulations passed by the Local Road Agencies should supersede any conficting IPUC order.
See e.g. Idaho Code § 40-1406 (providing that county-wide highway districts "shall exercise all
of the powers and duties provided in chapter 13 of this title" and that "(wJherever any
provisions of the existing laws of the state of Idaho are in conflict with the provisions of ths
chapter, the provisions of this chapter shall control and supersede all such laws").
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ILL. CONCLUSION
The IPUC does not have statutory authonty to regulate the relocation of public utilities
on the public rights-of-way. Instead, theIdaho Legislatue has granted exclusive jursdiction
over the public rights-of-way to the Local Road Agencies. Section 10 of Rule H not only
usurs the Local Road Agencies' exclusive jursdiction, but it impedes their abilty to
efficiently mange road projects that require relocation of public utilities. For these reasons,
the Associations respectively ask the Cour to set aside the IPUC's order approving Section 10
of Rule H.
DATED this / 3 day of August, 2010.
SHERER & WYNKOOP, LLP
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AMCUS CPR BRIF - 6
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on ths /3 day of August, 2010, I served a tre and
correct copy of the AMCUS CUR BRIF upon the following named pares by the method
indicated below, and addressed to the following:
Idaho Public Utilties Commission
Jean D. Jewell, Secretary
Idaho Public Utilties Commission
472 West Washigton Street
P.O. Box 83720
Boise, Idaho 83720-0074
Via U.S. Mail, postage prepaid
Weldon B. Stutzan
Krstine A. Sasser
Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington Street
P.O. Box 83720
Boise, Idaho 83720-0074
Via U.S. Mail, postage prepaid
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Building Contractors Association of
Southwestern Idaho
Michael C. Creamer
Michael P. Lawrence
GIVENS PURSLEY, LLP
601 West Banock Street
P.O. Box 2720
Boise, Idaho 83701-2720
Via U.S. Mail, postage prepaid
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Ada County Highway District
Merlyn W. Clark
D. John Ashby
HAWLEY TROXELL ENNIS &
HAWLEY,LLP
877 Mai Street, Suite 1000
P.O. Box 1617
Boise, Idaho 83701-1617
Via U.S. Mail, postage prepaid
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Idaho Power Company
Lisa D. Nordstrom
Donovan E. Walker
Idaho Power Company
1221 West Idaho Street
P.O. Box 70
Boise, Idaho 83707-0070
Via U.S. Mail, postage prepaid
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Gregory W. Said
Idaho Power Company
P.O. Box 70
Boise, Idaho 83707-0070
Via U.S. Mail, postage prepaid
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Micheal Kurz, Esq.
Kur J. Boehm, Esq.
BOEHM, KURTZ & LOWRY
36 E. Seventh Street, Suite 1510
Cincinati, Ohio 45202
Via U.S. Mail, postage prepaid
J Mattew A. Johnon Via U.S. Mail, postage prepaid'
David F. VanderVelde
WHTE PETERSON GIGRA Y ROSSMA
NY & NICHOLS, P.A.
5700 E. Franin Road, Suite 200
Nampa, Idaho 83687
Kevin Higgin Via U.S. Mail, postage prepaid
EN"'RGY STRATEGIES, LLC
Parkside Towers
215 S. State Street, Suite 200
Salt Lake City, UT 84111
AMCUS CUR BRIF - 8