20100920ACHD Reply to Amicus Brief.pdf

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INTIS~:!~O~TO~~~:mOFIDA~~~S£P2a AH 6' 19
IN THE MATTER OF THE APPLICATION
OF IDAHO POWER COMPANY TO
MODIFY ITS RULE H LINE EXTENSION
TARFF RELATED TO NEW SERVICE
ATTACHMENTS AND DISTRIBUTION
. LINE INSTALLATIONS.
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IDAHO PUBLIC UTILITIES COMMISSION)
)Respondent on Appeal, )and )
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Respondentlespondent on AppeaL. ~
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ADA COUNTY HIGHWAY DISTRICT,
Petitioner/Appellant,Supreme Cour Docket No. 37294-2010
Idaho Public Utilities Commission No.
IPC-E-08-22
vs.
IDAHO POWER COMPANY,
APPELLANT ACHD'S REPLY TO AMICUS BRIEF
Appeal from the Idaho Public Utilities Commission
Merlyn W. Clark, ISB NO.1 026
D. John Ashby, ISB No. 7228
HA WLEY TROXELL ENNIS & HAWLEY LLP
877 Main Street, Suite 1000
P.O. Box 1617
Boise, ID 83701-1617
Krstine Sasser
IDAHO PUl3LIC UTILITffS COMMISSION
P.O. Box 83720
Boise, ID 83720-0074
Attorneys for Respondent on Appeal Idaho
Public Utilities Commission
Attorneys for Petitioner/Appellant Ada County
Highway District
APPELLANT ACHD'S REPLY TO AMICUS BRIEF
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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 Respondentlespondent on
Appeal Idaho Power Company
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TABLE OF CONTENTS
i. INTRODUCTION................................................................................................................... 1
II. ARGUMENT............................. ............................ .... ............ ............................... ................. 1
A. Section 10 Of Rule H Usurs The Public Road Agencies
Exclusive Jurisdiction Over Public Rights-Of-Way.................... ............... ..... 1
B. The Idaho Legislature Gave Jurisdiction To The Public Road
Agencies, Not To The IPUC ........................................................................... 3
C. Section 10 Of Rule H Should Be Amended To Make Clear That It
Does Not Apply In Jurisdictions Where A Public Road Agency
Regulates Utility Relocation On Public Rights Of Way................................. 5
III. CONCLUSION ..................................................... .............. ...................... ........................... 7
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TABLE OF AUTHORITIES
Page
Cases
Alpert v. Boise Water Corp.
118 Idaho 136 P.2d 298 (Idaho 1990).........................................................................................4
Washington Water Power CO. VS. Kootenai
99 Idaho at 882......... ........... .................. ................. ................ ................................................ ....4
Other Authorities
Idaho Code § 40-1312 ....................................................................................................................4
Idaho Code § 40-131 0 .................................................................................................................3,4
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I. INTRODUCTION
Pursuat to the Court's Order dated July 29,2010, Appellant Ada County Highway
District ("ACHD") submits this reply brief in response to the Amicus Curiae Brief filed by the
Idaho Association of Highway Districts, the Association of Idaho Cities and the Idaho
Association of Counties and in reply to Idaho Power Company's Brief in Response to Amicus
Curiae Brief, filed September 1,2010 ("Idaho Power Response Brief'). Much of Idaho Power's
Response Brief merely restates the positions it has taen thoughout this litigation. ACHD will
not re-hash each argument made by Idaho Power, but rather wil address only the three key
issues discussed below.
II. ARGUMENT
Á.Section 10 Of Rule H Usurps The Public Road Agencies Exclusive Jurisdiction Over
Public Rights-Of-Way
Idaho Power disagrees with the Amicus Road Agencies' assertion that Section 10 of Rule
H usurps the Public Road Agencies' exclusive jurisdiction over public rights-of-way. Notably,
Idaho Power does not dispute that ACHD and other Public Road Agencies have exclusive
jursdiction over public rights-of-way, including jurisdiction over utility relocation on public
rights-of-way. Rather, Idaho Power contends that jursdiction over utility relocation should be
bifurcated into two areas of jursdiction. Under Idaho Power's theory, ACHD would retan
jurisdiction to require utilities to relocate and to otherwse regulate the practical aspects of utilty
relocation. However, the Idaho Public Utilities Commission ("IPUC") would have jursdiction
to regulate whether private developers must reimburse Idaho Power for all or a portion of its
utility relocation costs. See Idaho Power's Brief in Response to Amicus Curiae Brief, p. 2 ("The
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only question presented in this appeal is whether a Public Road Agency or the Commission has
the jurisdiction to decide how, and from whom, Idaho Power can recover the costs it incurs when
a Public Road Agency lawflly requires relocation of utility facilities.").
This argument ignores the fact that ACHD has long-exercised its jurisdiction to oversee
both aspects of utility relocation. ACHD's resolution 330 regulates whether a private developer
is required to reimburse a utility for all or a portions of its relocation costs when ACHD requires
it to relocate its facilities on a public right-of-way. R., VoL. III, p. 487 (providing that, where a
private developer pays for a percentage of a public road improvement project that results in
utility relocation, the private developer must reimburse the public utility for that same percentage
of its relocation costs). Neither Idaho Power nor the IPUC has questioned ACHD's authority to
regulate utility relocation in this regard. In fact, Idaho Power cites the similarities between
ACHD's Resolution 330 and Section 10 of Rule H as the reason why Section 10 ofRuIe H does
not usur ACHD's exclusive jurisdiction over the public rights-of-way. See Idaho Power
Response Brief, p. 5; see also IPUC Respondent's Brief, p. 21 (explaining that the IPUC canot
"question a road agency's cost allocation rules, whether similar to Section 10 or not").
Idaho Power's argument misses the point. Given that ACHD has "exclusive" jurisdiction
to regulate utility relocation on public rights-of-way, no other governental entity can have
jurisdiction to take over ACHD's authority to allocate the cost of utility relocation between
private developers and utilities. Idaho Power contends that Section 10 of Rule H "has no effect
on the Public Road Agencies' management of utility relocation in public rights-of-way," (id at
p. 6), but it most certinly does. Section 10 of Rule H purorts to strip ACHD of its exclusive
jurisdiction to regulate utility relocation on public rights-of-way by taking away from ACHD the
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authority to determine whether a private beneficiar must reimburse a utility for its relocation
costs.
B. The Idaho Legislature Gave Jurisdiction To The Public Road Agencies, Not To The
IPUC
Idaho Power next calls upon principles of "logic and equity" to argue that the IPUC
should have jurisdiction over whether Idaho Power may recover its utilty relocation costs from
private developers. In this regard, Idaho Power complains that, without Section 10 of Rule H,
Idaho Power would have to deal with regulations implemented by multiple Public Road
Agencies to recover its costs for utility relocations in different highway districts. Specifically,
Idaho Power asserts that "(IJogic and equity dictate that there must be a uniform method
applicable to all customers or persons as to how Idaho Power's costs will be recovered." See
Idaho Power Response Brief, p. 3.
As an initial matter, Idaho Power's invocation of "logic and equity" is irrelevant. This
appeal has nothing to do with whether it makes more sense for the IPUC or the Public Road
Agencies to have jurisdiction over allocating utility relocation costs that result from public road
projects. The only question is which entity has been statutorily granted that authority by the
. 1 Idaho Legislature. The Idaho Legislature has expressly granted Public Road Agencies
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"exclusive" jurisdiction over public rights-of-way (see Idaho Code § 40-1310), and ACHD has
exercised that statutorily granted authority to allocate utilty relocation costs through its
regulation 330. In contrast to the Public Road Agencies broad and exclusive authority, "(tJhe
Idaho Public Utilities Commission exercises limited jurisdiction and has no authority other than
that expressly granted to it by the legislature." Alpert v. Boise Water Corp., 118 Idaho 136, 140,
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795 P.2d 298,302 (Idaho 1990). "If the legislative branch desires the Public Utilities
Commission to have such authority, it must be provided by precise language." Washington
Water Power Co., 99 Idaho at 882 (emphasis added). Thus, ifIdaho Power wants jurisdiction
over utility relocation on public rights-of-way to be split as it proposes, it must go to the Idaho
Legislatue.
Notably, Idaho Power's complaint that it should not have to deal with various different
Public Road Agencies is contrary to the intent of the legislature as expressly set forth in statute.
Idaho Code § 40-1310(8) broadly grants "exclusive general supervisory authority" over public
rights-of-way. Idaho Code § 40-1312 provides that this grant of authority to the Public Road
Agencies should be "liberally construed, as a broad and general grant of powers, to the end that
the control and administration of the distrcts may be efficient." Thus, the whole reason for the
broad grant of authority to the Public Road Agencies is so the Public Road Agencies can oversee
all aspects of public rights-of-way in a way that would provide effciency to the Public Road
Agencies.
Through Resolution 330, ACHD enacted regulations that create efficiency for all public
road projects within the Ada County Highway District. Resolution 330 regulates not only the
practical aspects of utility relocation on public rights~of-way, but it also regulates whether a
private developer must reimburse public utilties for their relocation costs. That way, all affected
paries - ACHD, the public utilities and private developers - know exactly who will pay the cost
of utility relocation by looking to one single set of regulations.
Moreover, it should not be overlooked that Rule H applies only to Idaho Power, not to the
many other utilities that are affected by utilty relocations. A large public road project wil often
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require several utilities to relocate their utility lines. Even with Rule H, all utilities except for
Idaho Power would be governed by Resolution 330. ACHD would stil determine whether a
private developer must reimburse every utility other than Idaho Power for its relocation costs.
Such a system of concurrent jurisdiction may be more efficient for Idaho Power, but it certainly
is not more efficient for the Public Road Agencies.
C. Section 10 Of Rule H Should Be Amended To Make Clear That It Does Not Apply
In Jurisdictions Where A Public Road Agency Regulates Utilty Relocation On
Public Rights Of Way
Idaho Power takes issue with the Amicus Road Agencies' concern over the "savings
clause" of Section 10 of Rule H. That clause provides that Section 10 of Rule H wil not apply
in jursdictions where a Public Road Agency has adopted utility relocation regulations "that are
substantially similar to the rules set out in Section 10 of Rule H." See R., VoL. iv, p. 678. The
clear intent of this provision is that Section 10 of Rule H would trp any Public Road Agency
regulation that is not "substantially similar" to Section 10 of Rule H.
Idaho Power expresses dismay at the Amicus Road Agencies' concerns with this
provision. Specifically, Idaho Power responds as follows:
This adverse reaction is bafflng in that any Public Road Agency
can avoid any problems hypothesized by the Agencies concerning
this provision by simply choosing not to implement any "legally
binding gudelines" like the ones ACHD implemented in its
Resolution 330.
See Idaho Power's Response Brief, p. 5. In other words, Idaho Power's position is that a Public
Road Agency should simply abstain from regulating utility relocations if it does not want its
regulations to be trumped by Section 10 of Rule H. Idaho Power's position confrms two key
points. First, it confirms that Section 10 of Rule H purorts to trmp Public Road Agencies'
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regulations. Second, it shows exactly how Section 10 of Rule H usurs the exclusive jurisdiction
granted to the Public Road Agencies. Idaho Power's position is that the Public Road Agencies
should either implement regulations that are "substatially similar" to Section 10 or Rule H or
just not regulate utility relocation at alL. Either way, Section 10 of Rule H strips the Public Road
Agencies of their jurisdiction over utility relocations on public rights-of-way with regard to
whether private developers are required to reimburse public utilties for their relocation costs.
Finally, almost as if conceding that the "savings clause" rus afoul of the Idaho
Legislatue's grant of authority to the Public Road Agencies, Idaho Power offers a way for the
Cour to fix the problem. See Idaho Power Response Brief, p. 6 ("(I)fthe Cour sees some
problem, it could order that the provision be removed."). ACHD agrees with the proposition that
the Court can fix Section 10 of Rule H, but disagrees with the suggestions that the offending
provision be "removed." Simply removing the provision would leave ambiguity as to which
regulations control where a public Road Agencies' regulations conflct with Section 10 of Rule
H. To solve this problem, ACHD respectfully requests that this Cour find that Section 10 of
Rule H, as wrtten, improperly usurps the Public Road Agencies' jurisdiction over public rights-
of-way. Section 10 of rule H should either be strcken in its entirety, or, alternatively, the matter
should be remanded to the IPUC with instructions to amend Rule H to make clearthat
regulations implemented by Public Road Agencies control over Section 10 of Rule H. ACHD
suggests that the following provision could replace the "savings clause":
This Section shall not apply to utility Relocations within public
road rights-of-way of Public Road Agencies which have adopted
rues or regulations for the allocation of utilty relocations costs
between the utilty and other paries. In such a case, the Public
Road Agencies' rues or reguations shall govern.
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III. CONCLUSION
For the foregoing reasons, and as set forth in ACHD's prior briefing, Sections 10 and 11
of Rule H exceed the scope of the IPUC's jurisdiction and 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 set aside.
RESpECTFULLY SUBMITTED THIS 11 day of September, 2010.
HA WLEY TROXELL ENNIS & HAWLEY LLP
~'-ilW. Clark, ISB No. 1026
D: Ashby, ISB No. 7228
Attorneys for Petitioner/Appellant Ada County
Highway District
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 11 day of September, 2010, I caused to be served a
true copy of the foregoing APPELLANT ACHD'S REPLY BRIEF by the method indicated
below, and addressed to each of the followig:
Jean 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 COMPANY
P.O. Box 70
Boise, Idaho 83707-0070
Scott Sparks
Gregory W. Said
IDAHO POWER COMPANY
P.O. Box 70
Boise, Idaho 83707-0070
Michael C. Creamer
GIVENS PURSLEY, LLP
601 W. Banock St.
Boise, ID 83702
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Micheal Kurz, Esq.
Kurt 1. Boehm, Esq.
BOEHM, KURTZ & LOWRY
36 E. Seventh Street, Suite 1510
Cincinnati, OH 45202
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Matthew A. Johnson
Davis F. VanderVelde
WHITE PETERSON GIGRA Y ROSSMAN
NYE & NICHOLS, P.A.
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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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