20100901IPC Brief in Response to Amicus Brief.pdf

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IN THE SUPREME COURT OF THE STATE OF IDAHß1'SEP - \ lt\ 3: \9
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RULE H LIN EXTENSION TARFF )
RELATED TO NEW SERVICE )
ATTACHMNTS AND DISTRIUTION LINE ) Supreme Cour Docket No. 37294-2010INSTALLATIONS. ) (IPUC Case No. IPC-E-08-22)
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ADA COUNTY HIGHWAY DISTRICT,
Petitioner-Appellant,
v.
IDAHO PUBLIC UTILITIES COMMISSION
and IDAHO POWER COMPAN,
Respondents on AppeaL.
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RESPONDENT IDAHO POWER COMPAN'S BRIEF
IN RESPONSE TO AMICUS CURIE BRIEF
Appeal from the Idaho Public Utilities Commission
Commssioner Marsha H. Smith, Presidig
Merlyn W. Clark (ISB No. 1026)
D. John Ashby (ISB No. 7228)
HAWLEY TROXELL ENNIS &
HAWLEY,LLP
877 Mai Street, Suite 1000
P.O. Box 1617
Boise, Idaho 83701-1617
Attorneys for Petitioner-Appellant Ada County
Highway District
David E. Wynoop
SHERER & WYOOP, LLP
730 Nort Main Street
P.O. Box31
Meridian, Idao 83680
Attorneys for the IdahoAssociation of Highway
Districts, the Association of Idaho Cities and
the Idaho Association of Counties
LAWRNCEG. WASDEN
Attorney General
WELDON B. STUTZMA (ISB No. 3283)
KRSTIN A. SASSER (ISB No. 6618)
Deputy Attorneys General
Idaho Public Utilities Commssion
472 West Washigton Street
P.O. Box 83720
Boise, Idaho 83720-0074
Attorneys for Respondent Idaho Public Utilities
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
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TABLE OF CONTENTS
I. INTRODUCTION .................................................................................................................... i
II. ARGUMENT ............................................................................................................................... .1
A. Cost Creation Verses Cost Recover .. ..... ..... ........ ... ... ... ..... .... .... ...... .............. ........ 1
B. The Public Road Agencies Have Misinterreted Section 10 of Rule H................. 4
.- III. CONCLUSION ............................................................................................~...........................6
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TABLE OF AUTHORITIES
Cases
Alpert v. Boise Water Corporation, 118 Idaho 136, 140, 795 P.2d 298,302 (1990) .....................2
Grindstone Butte Mut. Canal Co. v. Idaho Public Utilties Commission, 102 Idaho 175,
179-182,627 P.2d 804, 808-810 (1981)....................................................................................3
Idaho State Homebuilders v. Washington Water Power, 107 Idaho 415,419,690 P.2d 350,
354 (1984)..................................................................................................................................3
Statutes
Idaho Code § 61-315.......................................................................................................................3
Idaho Code § 61-629.......................................................................................................................6
IPUC Orders
Order No. 30853 .............................................................................................................................2
Order No. 30955 ................................................................................................................. 2, 4, 5, 6
Other Authorities
Ada County Highway Distrct Resolution 330 ............................................................................... 5
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I. INTRODUCTION
Respondent Idaho Power Company ("Idaho Power") hereby responds to the Amicus
Curiae Brief of the Idaho Association of Highway Distrcts, the Association of Idaho Cities, and
the Idaho Association of Counties (collectively, the "Amicus Road Agencies"). Like the Ada
County Highway Distrct ("ACHD"), the Amicus Road Agencies have (1) failed to recognize the
jurisdictional distinction between the Public Road Agencies' authority to create costs for utilities
by requiring relocation of utility facilities in public rights-of-way as opposed to the Idaho Public
Utilities Commission's authority over the recovery of costs incurred by the utilities pursuant to
the required relocation of facilities in public rights-of-way and (2) have misinterreted Section
10 of Idaho Power's line extension tarff.
II. ARGUMENT
A. Cost Creation Verses Cost Recovery.
As stated above, the Amicus Road Agencies in their Brief fail to recognze the distinction
between the jursdictional authority to impose costs concernng the location or relocation of
public utiity facilities in public rights-of-way and the jursdictional authority over how the
public utility wil recover the costs that are imposed. At pages 17 and 18 of its Respondent
Brief, Idaho Power clearly acknowledges that the Public Road Agencies (including the Amicus
Road Agencies) have exclusive jursdiction and authority to require Idaho Power to relocate 'its
facilities in public road rights-of-way, at no cost to the Public Road Agency, where the facilties
¡ would incommode the public use.
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RESPONDENT IDAHO POWER COMPAN'S
BRIF IN RESPONSE TO AMICUS CURIAE BRIF - 1
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The Idaho Public Utilities Commission ("Commission") in Order Nos. 30853 and 30955
acknowledges this authority and has reiterted ths position in the Commission's Respondent
Brief to this Cour. These acknowledgements confirm that this proceeding has nothng to. do
with the Public Road Agencies' authority to require relocation in the public right~of-way and to
impose costs on the public utility, in ths case Idaho Power. The only question presented in this
appeal is whether a Public Road Agency or the Commission has the jursdiction to decide how,
and from whom, Idaho Power can recover the costs it incurs when a Public Road Agency
I lawflly requires relocation of
utility facilities.
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There are a myrad of goverental agencies and private paries that impose costs and
fees on Idaho Power. The authority or right to impose those costs is separate from the
Commission's jursdiction to deterne how Idaho Power wil recover those costs. How. the
public utility, in ths case Idaho Power, wil recover the costs imposed for location or relocation
of facilities in public rights-of-way is subject to the jursdiction of the Commission. As is noted
in Alpert v. Boise Water Corporation, 118 Idaho 136, 140, 795 P .2d 298, 302 (1990):
The public utilities law (Chapters 1-7 of Title 61, Idaho Code)
establishes a comprehensive scheme for the regulation of investor-
owned public utilities by the Idaho Public Utilities Commission.- 1Idaho Code, tit. 61, chap. 5.
1 More specifically, the authority granted the IPUC includes
the power to investigate and fix rates and reguations, LC. § 61-
503; deterine the reasonableness of rates, LC. § 61-502;
investigate proposed interstate rates, I.C. § 61-506; deterine rues -
and regulations affecting the pedormance of public utilities, I.C. §
61-507; order improvements to utility facilities, LC. § 61-508;
investigate accidents occurg on public utility propery arsing
from its maintenance or opertion, I.C. § 61-517; deterine
standards and practices for the measurement of quatity, quality or
RESPONDENT IDAHO POWER COMPAN'S
BRIF IN RESPONSE TO AMICUS CURIAE BRI - 2
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other conditions perainng to the supply of a public utility product
or serce, i.e. § 6 i -520; ascer the value of public utility
propery, I.C. § 61-523; and issue cerificates of convenience and
necessity, I.C. § 61-526.
See also Grindstone Butte Mut. Canal Co. v. Idaho Public Utilties Commission, 102 Idaho 175,
179-182,627 P.2d 804, 808-810 (1981). How idaho Power wil recover in its rates and charges
the costs imposed by the Public Road Agencies is clearly within the exclusive jursdiction of the
Commission.
As noted in the Amicus Brief at page i, there are multiple highway distrcts, counties, and
cities which Idaho Power must deal with concerng the use of their respective jursdictional
public rights-of-way. Logic and equity dictate that there must be a unform metod applicable to
all cutomers or persons as to how Idaho Power's costs will be recovered. It is for the
Commssion to exercise its authority "in such a way as to fix non-discrmiatory, and non-
preferential rates and charges." Idaho State Homebuilders v. Washington Water Power, 107
Idaho 415, 419,690 P.2d 350,354 (1984). To allow each separate highway distrct, county, and
city to create a method of public utility cost recover would clearly be in violation of the unform
legal framework the Idaho Legislatue created when it established the Public Utilities Law.
Without a single entity establishing unform rules, there would be no uniformty of treatment, a
crtical element of public utility charge, as required by Idaho Code § 61-315.
Although the Amicus Road Agencies do not actually state in their Amicus Brief that they
contend they have the authority to detenine how Idaho Power will recover in its rates and
charges the costs that are imposed in the location or relocation of the utility facilities, ths is
apparently their position. If they do not contend that Public Road Agencies have the authority to
RESPONDENT IDAHO POWER COMPAN'S
BRIF IN RESPONSE TO AMICUS CURI BRIF - 3
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deterine how Idaho Power is to recover its location or relocation costs, there is no controversy
in this proceeding. The central question that must be . asked of the Public Road Agencies is:
How do they propose Idaho Power wil recover its costs? Are those costs to be recovered by
Idaho Power from the paricular entity or person that caused the costs to be incured, or are the
costs to be socialized and recovered in the overall rates and charges to all utility customers? Wil
the recover method and cost allocation be different for each Public Road Agency's
geographical area? Realisticaly, the only agency with both jursdiction and experence to
establish the required unform rate treatment is the Commission.
B.The Public Road Agencies Have Misinterpreted Section 10 of Rule H.
Apparently, like ACHD, the Amcus Road Agencies have misinterreted the effect of
Section 10 of Idaho Power's line extension taff. In Order No. 30955, the Commssion clearly
found that Section 10 only becomes applicable after the Public Road Agency has deterned the
cost of relocating facilities that would be paid by Idaho Power. The Commssion is only
concered with Idaho Power's recovery of costs. Ths cost recover issue is within the exclusive
jursdiction of the Commssion and has absolutely no financial impact on the Public Road
- Agencies. As pointed out by the Commission, Section lOis simply an accommodation to
remove frction between the Public Road Agency, a developer, and Idaho Power. It does not
usur any power or jursdiction from the Public Road Agencies because it is only the recover of
relocation costs by Idaho Power that is at issue before the Commission. As was succinctly stated
by the Commission in Order No. 30955, page 11:
RESPONDENT IDAHO POWER COMPAN'S
I BRIF IN RESPONSE TO AMICUS CURI BRIF - 4J
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The language of Section lOin no way usurps the authority of
ACHD or any other highway distrct or political subdivision
because it does not attempt to give Idaho Power or this
Commission any authority that a highway distrct would otherise
hold. It is because the allocations of Resolution 330 have worked
so effectively in the past 20 years that Idaho Power proposed it as a
model for the allocation of relocation costs with its Rule H,
Section 10. Tr. at 27.
(Tr. VoL. IV, p. 658.) The approval of Section 10, Rule H, of Idaho Power's line extenion tarff
is clearly witi1in the jursdiction of the Commssion and such approval is fair a.TJd reasonable.
The Public Road Agencies have taken strong exception to the following "savings clause"
provision of Section 10:
This Section (l0) 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 Beneficiares that are
substantially similar to the rules set out in Section 10 of Rule H.
Ths advere reaction is baffing in that any Public Road Agency can avoid any problems
hypothesized by the Agencies concering this provision by simply choosing not to implement
any "legally binding guidelines" like the ones ACHD implemented in its Resolution 330.
Although the Amicus Road Agencies vaguely refer to "ineffciency, conflict, and other
general problems" on page 4 of their Amicus Brief, they do not identify any concrete exampiès of
additional administration effort for the Public Road Agencies. Section 10 wil not chage one
thing about how the Public Road Agencies car out their work. There is a good reason why
they have not presented such examples. ACHD has been doing it in the same maner set fort in
Order No. 30955 for twenty-three years. Idaho Power wil continue to relocate its facilities
exactly as it has in the past - in the maner and time schedule. agreed to with the Public Road
RESPONDENT IDAHO POWER COMPAN'S
BRIF IN RESPONSE TO AMICUS CURI BRIF - 5
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Agency. The only difference is that Order No. 30955 adds a cost recover mechansm to the
process at the Commission after the Agency-mandated relocation is complete. It has no effect on
the Public Road Agencies' management of utility relocation in public rights-of-way.
Of course, pursuant to the provisions of Idaho Code § 61-629, ths Cour may alter or
amend any provision of the Commission's Order to meet any objection of the Cour. Although
Idaho Power Company does not believe that the above-quoted "savigs clause" provision of
J Section 10 is improper, if the Court sees some problem, it could order that the provision be
i removed. Nothing would really change as a result of this removal, but the Public RoadJ
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Agencies' complait would be addressed.
III. CONCLUSION
The Idaho Public Utilities Commission has exclusive jurisdiction to deterine how Idaho
Power will recover the cost that it incurs when locating or relocating facilities in public rights-of-
way, and Section 10 of Rule H in Idaho Power's line extension tarff is fair, just, and reasonable.
Respectfully submitted this 1 st day of September 2010.
~fl.tb~
LISA D. NORDST M
Attorney for Respondent Idaho Power Company
RESPONDENT IDAHO POWER COMPAN'S
BRIF IN RESPONSE TO AMICUS CURI BRIF - 6
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 1st day of September 2010 I served a tre and correct
copy of RESPONDENT IDAHO POWER COMPANY'S BRIEF IN RESPONSE TO AMICUS
CURIAE BRIEF upon the following named pares by the method indicated below, and
addressed to the following:
Idaho Public Utities Commssion
Jean D. Jewell, Secretar
Idaho Public Utilities Commssion
472 West Washigton Street
P.O. Box 83720
Boise, Idaho 83720-0074
--Hand Delivered
U.S. Mail
_ Overght Mail
FAX
~ Email jean.jewel1(ã,puc.idaho.gov
Weldon B. Stutzan
Krstine A. Sasser
Deputy Attorney General
Idaho Public Utilties Commission
472 West Washington
P.O. Box 83720
Boise, Idaho 83720-0074
--Hand Delivered
U.S. Mail
_ Overnight Mail
FAX
~ Email weldon.stutzmanaYuc.idaho.gov
krs.sasser0luc.idaho. gov
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
Hand Delivered
--U.S. Mail
_ Overnight Mail
FAX
~ Email mccØ2givenspursley.com
michaellawrenceØ2givenspursley.com
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
Hand Delivered
-- U.S. Mail
_ Overight Mail
FAX
~ Email mclarkØ2hawleytoxell.com
iashbyßaw leytoxell.com
RESPONDENT IDAHO POWER COMPAN'S
BRIF IN RESPONSE TO AMICUS CURI BRIF - 7
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Idaho Association of Highway Districts,
the Association of Idaho Cities, and the
Idaho Association of Counties
David E. Wynoop
SHERER & WYKOOP, LLP
730 Nort Main Street
P.O. Box 31
Merdian, Idaho 83680
RESPONDENT IDAHO POWER COMPAN'S
BRIF IN RESPONSE TO AMICUS CURIAE BRIF - 8
Hand Delivered
-2U.S. Mail
_ Overight Mail
FAX
-X Email dwyooplaw(fgmail.com
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