20100716IPUC Brief.pdf

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SUt ~-c -10 -O"L,
f?!:CE1Vi:
~ SC._~
IN THE SUPREME COURT OF THE STATE OF IDAJJlJt 16
Plf/2:02ADA COUNTY HIGHWAY DISTRICT,) UTH¡íUT~1HO.) - ft:S C
) SUPREME COURT
) DOCKET NO. 37294-2010
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Petitioner/Appellant,
v.
IDAHO PUBLIC UTILITIES COMMISSION,
Respondent on Appeal,BRIEF OF RESPONDENT
IDAHO PUBLIC UTILITIES
COMMISSIONand
IDAHO POWER COMPANY,
RespondentlRespondent on AppeaL.
APPEAL FROM THE IDAHO PUBLIC UTILITIES COMMISSION
Commissioner Marsha H. Smith, Presiding
MERL YN CLARK (ISB # 1 026)
D. JOHN ASHBY (ISB #7228)
Hawley, Troxell, Ennis & Hawley, LLP
877 Main Street, Suite 1000
PO Bex 1617
Boise, 1D 83701-1617
LA WRENCE G. WASDEN
Attorney General
WELDON B. STUTZMAN (ISB #3283)
KRISTTNE A. SASSER (lSB #fIi 1 g)
Deputy Attorneys General
472 W. Washington Street
PO Box 83120
Boise, ID 83720-0074
Attorneys for Appellant
Ada County Highway District
Attorneys for Respondent
Idaho Public Utilities Commission
LISA D. NORDSTROM (ISB #5733)
DONOVAN E. WALKER (ISB #5921)
Idaho Power Company
PO Box 70
Boise, ID 83707-0070
Attorneys for Respondentlespondent on Appeal
Idaho Power Com pany
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TABLE OF CONTENTS
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i. STATEMENT OF THE CASE .................................................................................................. i
A. Nature of the Case............. ..... ............... ................. ............. ......... ........ ........................... ...... i
B. The Course of Proceedings ............................................. ...................................................... 2
C. Concise Statement of the Facts ..............................................................................................3
II. ISSUES PRESENTED ON APPEAL ...................................................................................... 10
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III. ARGUMENT ......................................................................................................................... i i
A. The Commission Regularly Pursued its Authority in Approving Idaho Power's Tarff.. i i
B. Idaho Power's Tariff by its Terms and in Application Serves a Ratemaking Purose for
the IPUC, and it does not Conflict with ACHD Resolution 330...................................... i 4
i. Section i 0 Embodies and thus is Consistent with the Common Law Rule ..................... i 8
2. Neither the "Savings Clause" of Section i 0 nor the New Section i 1 Intederes with
ACHD's Jurisdiction over Road Improvements ............................................................... i 9
C. ACHD's Appeal Should be Dismissed Because there is no Actual Case or Controversy
Between ACHD and the IPUC .........................................................................................23
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IV. CONCLUSION.......................................................................................................................28
APPENDIX A -- SECTIONS i 0 AND i i
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TABLE OF AUTHORITIES
Cases
Aetna Life insurance Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937)............ 24
Harris v. Cassia County, 106 Idaho 513, 516, 681 P.2d 988 (1984).....................~...................... 24
Industrial Customers of Idaho Power v. Idaho PUC, 134 Idaho 285, 288, 1 P.3d 786, 789 (2000)
................................................................................;.................................................................. 13
Miles v. Idaho Power Co., 116 Idaho 635,642, 778 P.2d 757, 764 (1989) ................................; 24
Utah-Idaho Sugar Company v. Intermountain Gas Co., 100 Idaho 368, 376, 597 P.2d 1058
(1 979)........................................................................................................................................ 11
Washington Water Power Co. v. Kootenai Environmental Allance, 99 Idaho 875, 881, 591 P.2d
122 (1979)................................................................................................................................. 22
Worley Highway District v. Kootenai County, 104 Idaho 833, 835, 663 P.2d 1135, 1137 (Ct.App
, 1983) ........................................................................................................................................... 7
Statutes
2009 Sess. Laws, ch. 142 § 1 .......................................................................................................... 8
Idaho Code § 40~210 .......................................................................................... 8, 9,10,21,22,23
Idaho Code § 61-626 ......... ....... ........ ....................... ............... ............. ..... ...... ................ ..... ........... 3
Idaho Code § 61-629 ....................................................................................................................11
Idaho Code §§ 61-502, 503, and 507.................................................................................. 7, 27, 28
Other Authorities
Order No. 30687 ............................ ......................................................................... ........................ 2
Order No. 30853 ............................................................................................................. 3,5, 19,25
Order No. 30883 .............................................................................................................................. 3
Order No. 30955 ........................:....................::........ 3, 6, 7, 8, 9, 11,15,17, 18, 19,20,25,27,28
. Rules
LA.R. 35 ........................................................................................................................................ 10
IDAPA 31.01.01.201 ...................................................................................................................... 3
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I. STATEMENT OF THE CASE
A. Nature of the Case
This case was initiated when Idaho Power Company fied an application with the Idaho
Public Utilities Commission ("Commission" or "IPUC") requesting approval of changes to the
Company's line extension tariff. This appeal involves Sections 10 and 1 1 of the tariff. i Other
provisions of the line extension tariff address the circumstance of providing electric service
where it has not previously been available. Sections 10 and 11 address the relocation of Idaho
Power facilities that have already been placed in public roadways. . Idaho Power proposed the
tariff provisions at issue in this appeal to ensure that its rates include the appropriate costs of
relocating facilities in public roadways. This is the core of the Commission's concern also, that
Idaho Power's customers pay an appropriate share of these relocation costs, but nothing more.
Idaho Power has a statutory obligation to relocate its facilities in public rights-of-way at
the request of the pertinent road agency. Both the Commission and the Company know this and
respect the authority of the road agency to manage the roads under its jursdiction.
Section 10 was drafted using Ada County Highway District's ("ACHD") Res'olution 330
as a template. Resolution 330 divides road improvements into two types: those that are paid for
entirely by ACHD and those where ACHD determines that some other individual, firm or entity
should pay all or a portion of the costs of road improvement. Under either scenaro, Idaho Power
relocates its utility facilities at the direction of and in the timeframe requested by the road
i For the convenience of the Court, Sections 10 and 11 ofldaho Power's line extension tariff are set out in Appendix
A to this Brief. Sections 10 and 11 are located in the Record at Volume iV, pages 676-79.
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IDAHO PUBLIC UTILITIES COMMISSION 1
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agency. It is the recovery of the costs that Idaho Power incurs for those relocations that is the
subject of Section 10 and is at issue here.
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improvement, Idaho Power pays all of its costs to relocate its facilities and those ,costs wil,
though the Commission's ratesetting process, be recovered in the rates charged to all its
customers.
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If the road agency has determined that some other individual, firm or entity should pay all
or a portion of the costs of the road improvement, then Section 10 provides for payment by that
¡...~)third pary of the same portion of the cost of electric facilities relocation. The fairness of this
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cost allocation for Idaho Power's customers is obvious. If the road agency has determined that
the public should not bear some or all of the costs of a road improvement and some other
I__.--beneficiary has cost responsibility, then it is not fair that the general body of ratepayers shoulder
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all the costs of relocating electric facilties for the same project.
¡ B. The Course of Proceedings
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Idaho Power filed its application with the IPUC on October 30,2008. On November 26,
2008, the Commission issued a Notice of Application and Intervention Deadline. Four paries
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subsequently requested and were granted intervention as paries. Pursuant to IPUC Order No.
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30687, the paries met on January 14,2009 to discuss the processing of the case, and agreed that
Modified Procedure was appropriate. The Commission may use Modified Procedure when it
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IDAHO PUBLIC UTILITIES COMMISSION 2
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preliminarily finds that the public interest may not require a hearing and that the case may be
processed by written submissions (comments) rather than by hearing. IDAPA 31.01.01.201.
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Following the submission of written comments, the Commission on July 1, 2009, issued
Order No. 30853 approving some of the c.hanges Idaho Power requested to its line extension
tariff. Four petitions for reconsideration of the Commission's Order were subsequently fied
pursuat to Idaho Code § 61-626. The IPUC in Order No. 30883 issued August 19, 2009,
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granted in par and denied in par the petitions for reconsideration, and scheduled an evidentiar
hearing and a hearing for oral argument to further consider the issues presented on
reconsideration.
On November 30, 2009, the IPUC issued its final order on reconsideration furter
clarifying and amending Idaho Power's line extension tariff, but also denying some of the
changes requested by ACHD. Order No. 30955; R. VoL. IV, pp. 648-678. ACHD filed an appeal
to the Supreme Court from the Commission's final Order No. 30955.
C. Concise Statement ~f the -Facts
IJ Idaho Power has had a iine extension tariff in place for many years and it was last-
changed in 1995. As with many utility company tarffs on file with the IPUC, Idaho Power's
tariff primarily serves two purposes. First, it provides notice to customers of the utility what
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terms will apply to their requests for service. The second purpose is to remove uncertainty for
Idaho Power regarding recovery of costs. If Idaho Power pays a share of line extension costs
pursuant to the terms of the tariff, the Company can reasonably expect those costs to be included
in customer rates when it files its next rate case.
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IDAHO PUBLIC UTILITIES COMMISSION 3
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In the IPUC proceeding, ACHD objected to Idaho Power's new Section 10 that addresses
the allocation of costs to relocate electric facilities already placed in a roadway. Paragraph (a) of
Section 10 states that Idaho Power wil pay all relocation costs when the relocation request
comes from a road agency making improvements to the road. Appendix A, p. 2; R. VoL. iv, p.
677. The Company can reasonably expect the IPUC wil allow Idaho Power to recover these
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costs in rates paid by its customers.
Paragraph (b) of Section 10 addresses the allocation of costs when the relocation benefits
both a road agency and a private developer. In those cases, the road agency and developer
j typically agree on a sharng of costs to improve the road. Paragraph (b) states that Idaho Power
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wil pay the same percentage of costs to move its facilities as the road agency wil pay on the
project. Likewise, the developer wil pay the same percentage of the costs to move Idaho
J Power's facilities as the developer has agreed to pay the road agency for the road improvements.
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Appendix A, p. 2; R. VoL. IV, p. 677. For example, if the developer is going to pay 50% of the
costs to improye the road, paragraph (b) of Section 10 provides that the developer will also pay,
J 50% of the costs to move Idaho Power's'facilities, and the Company will pay 50%. Idaho Power
can be re~onably assured that the amount it pays wil be included by the Commission in rates
paid by its customers.
Paragraph (c) of Section 10 states that when the request to relocate electric facilties is
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solely for the benefit of a private developer, the private developer wil pay all the costs to move
the facilities. Appendix A, p. 2; R. VoL. IV, p. 677. In that case, none of the costs wil be
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IDAHO PUBLIC UTILITIES COMMSSION 4
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Finally, paragraph (d) states that if Idaho Power and a road agency have an agreement in
place that creates a Private Right of Occupancy, "the costs of Relocation in such designated area
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will be borne by the Public Road Agency, or as directed in the agreement." Appendix A, p. 3; R.
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VoL. IV, p. 678. Idaho Power probably wil not pay relocation costs under paragraph (d), but if it
does, it can request that those costs be included in customer rates.
ACHD challenged these cost allocation terms of Section 10 as "an improper usurpation
of the aforementioned agencies' authority and beyond the jursdiction of this Commission."
Order No. 30853, p. 12; R. VoL. II, p. 324. The IPUC noted that "Idaho Power proposed Section
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10 of its Rule H tariff to address the situation that arises when highway improvements and the
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concurrent requirement to relocate utility facilities is caused by development adjacent to streets
and highways." Order No. 30853, p. 13; R. VoL. II, p. 325. The IPUC disagreed with ACHD's
allegations and concluded that "the Idaho Constitution and existing case law are not violated
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because Section 10 in no way grants Idaho Power or this Commission authority to impose such
.. costs.::.on. a. public road agency." Id Instead, said the Commission, "Section 10 addresses:.;:. _ '.' _. .
1.whether Idaho Power_èustomers or a third pary should pay for the relocation of utility facilities."
Id. The IPUC found "that the Section 10 provisions wil pròperly allocate the utility costs of
relocation so that Idaho Power customers pay only the appropriate amount ofthe cost." Id The
Commission concluded that Section 10 appropriately established costs that would be passed to
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Idaho Power's customers.
ACHD fied a Petition for Reconsideration of Order No. 30853, asserting that "Section
10, Rule H is beyond the jursdictional authority of the IPUC because it seeks to affirmatively,
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IDAHO PUBLIC UTILITIES COMMSSION 5
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regulate the state's public road agencies, entities of governent, third paries, and developers and
impose upon them the duty to pay for mandatory utility relocations in an unreasonable, one size
fits all approach." ACHD Petition for Reconsideration, p. 7; R. Vol. II, p. 347. ACHD argued it
had "exercised its exclusive jurisdiction over utility relocations (including financial liability for
utilty relocations) with the adoption of ACHD Resolution 330 in September 1986," and claimed
that Section 10 "usurps ACHD resolution 330 and ACHD's exclusive jurisdiction." ACHD
Petition for Reconsideration, p. 10; R. VoL. II, p. 350. ACHD recognized that provisions of the
Idaho Public Utilities Laws "authorize the IPUC to determine whether utility costs associated
with mandatory relocations may be included in a utility's rate base;" ACHD argued those laws
do not "provide the IPUC with the jurisdiction or authority to affirmatively intervene in the
exclusive jurisdiction of the state's highway districts and thereby impose upon public road
agencies, entities of governent, third paries, and developers the duty to pay for such
relocations." ACHD Petition for Reconsideration, p. 8; R. VoL. II, p. 348. ACHD described the
__.Commission's approval of Idaho Power's line extension tariff as "aggre8sive~:.and,
-"unprecedented." ACHD Petition for Reconsideration, p. 9; R. VoL. II, p. 349:' The Commission'
granted ACHD reconsideration and convened a hearing for oral argument.
The IPUC issued final Order No. 30955 after considering the arguments raised by ACHD
and other petitioners. The Commission noted that there was no disagreement between ACHD
and Idaho Power regarding underlying legal standards. For example, ACHD and Idaho Power
agree that "road agencies have exclusive jurisdiction to supervise highways and public rights-of-
way." Order No. 30955, p. 9; R. VoL. IV, p. 656. The Commission cited case law affirming that
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IDAHO PUBLIC UTILITIES COMMISSION 6
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"highway agencies have exclusive jurisdiction over all highways including the power to
construct, maintain, and repair public highways as well as to establish design standards and use
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standards." Id., citing Worley Highway District v. Kootenai County, 104 Idaho 833, 835, 663
P.2d 1135, 1137 (Ct.App. 1983). Finally, the IPUC explicitly affirmed "that highway agencies
have the authority to determine when Idaho Power must relocate its distribution facilties and
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whether any other pary is responsible for paying for the road improvement costs." Order No.
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30955, p. 10; R. VoL. IV, p. 657.
The Commission in Order No. 30955 approved Section lOin Idaho Power's line
extension tariff, and described its ratemaking purpose: "(OJnce the highway agency determines
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that a private pary (e.g., a developer) must shoulder all or a portion of the road improvement
costs, then it is the Commission that establishes the costs for utility relocation pursuant to Idaho
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Code §§ 61-502, 503, and 507." Order No. 30955, p. 10; R. Vol. iv, p. 657. The IPUC
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acknowledged that its "ability to set relocation costs arses only afer the highway agency
determines that it or another party is responsible for road improvement costs." Id,:,(.:mphasis
added). The COITission concluded that if ACHD requires "that a third "pary pay fQr the road
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improvement costs of Idaho Power's facilities within a public right-of-way or where the road
agency requires Idaho Power to move its facilty located in its easements, Section 10 and other
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R. VoL. IV, p. 659.
The IPUC required Idaho Power to make several changes to its tarff based upon the ,oral
¡..J argument and briefs. In particular, Idaho Power was directed to change Section 10 out of a
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concèm it could affect the Company's cooperation with road agencies' projects. Idaho Power
had included a term to require that it be paid in advance when third paries are paying the
Company for relocating its facilities in public rights-of-way. ACHD argued that "requiring all
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relocations in the public right-of-way to be paid in advance wil unduly interfere with the
project's timetable." Order No. 30955, p. 19; R. VoL. iv, p. 666. The Commission agreed with
ACHD "that requiTing advance payments may hinder the timely completion of improvements
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and relocations within the public rights-of-way." Id The IPUC accordingly required the
advance payment term be dropped from Idaho Power's tariff.
The IPUC in Order No. 30955 also approved two other paragraphs to the tariff that are
par of ACHD's appeaL. The 2009 session of the Idaho Legislature added a new provision to
Title 40, Highways and,Bridges, of the Idaho Code, effective July 1,2009. 2009 Sess. Laws, ch.
142 § 1. New Section 40-210 requires roadway agencies, after giving specific notice, to
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meet with the utility for the purpose of allowing the utility to review plans,
understand the goals, objectives and funding sources for the proposed project,
provide and discuss recommendations to the public highway agenc.Ycethat . would
reasonably eliminate or minimize utility relocation costs, limit the disruption of
utilty services, eliminate or reduce the need for present 61" future' utilty facility
relocation, and provide reasonable schedules to enable coordination for the
highway project constrction and such utìlty facility relocation as may be
necessary.
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Idaho Code § 40-210(2) (emphasis added). The section also requires that "all paries shall use
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their best efforts to find ways to (a) eliminate the cost to the utility of relocation of the utility
facilities, or (b) if elimination of such costs is not feasible, minimize the relocation costs to the
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maximum extent reasonably possible." Id. (emphasis added). Given enactment of Idaho Code §
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40-210, the Commission directed Idaho Power to add Section 11 to the line extension tarff.
Appendix A, p. 3; R. VoL. IV, p. 678. Section 11 states Idao Power's obligation to meet with
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Power's facilities. By paricipating in project design and development meetings, Idaho Power
wil be in a better position to minimize utility relocation costs, and accomplish the objectives of
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Idaho Code § 40-210. The Commission in Order No. 30955 approved that amendment to the
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tariff. Order No. 30955, p. 13; R. VoL. IV, p. 660.
The other change Idaho Power made to the tariff now chaIIenged by ACHD on appeal is
a "Savings Clause" added to Section 10. As an appeasement to ACHD, Idaho Power proposed to
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add a sentence to make clear that Section 10 does not apply where a road agency has adopted
similar "legally binding" guidelines, as ACHD had done with Resolution 330. Appendix A, p. 3;
R. VoL. IV, p. 678. The IPUC approved this change to the tarff, finding that "the 'Savings
Clause' of Section 10 does not operate to invalidate or void a road agency's legally enacted
guidelines for the allocation of utility relocation costs." Order No. J0955,.p.20; R. VoL. IV, p.
iJ 667.
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ACHD filed its Notice of Appeal from IPUC Order No. 30955 on Januar 8, 2010. As it
did before the Commission, ACHD argues on appeal that "Section 10 of Rule H attempts to
usurp the exclusive jursdiction granted to Public Road Agencies over public rights-of-way."
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ACHD Brief, p. 19. ACHD claims that by approving Idaho Power's tariff, "the IPUC wil
effectively dictate the policies and procedures of Public Road Agencies regarding electric utility
relocàtions, impact the operation of Public Road Agencies in their negotiations and relations with
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third parties and developers' concemìng road improvement projects and regulate and control
electricity utility relocations by assigning financial liability for such relocations." Id.
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ACHD on appeal also objects to the Savings Clause added to Section 10, now referring to
it as a "Preemption Clause." ACHD Brief, p. 27. ACHD claims the Savings Clause purports to
confer concurrent jurisdiction on the IPUC to regulate utility relocations. ACHD Brief, p. 24.
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Finally, ACHD on appeal argues that Section 11 added to the tarff is improper because,
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by approving it, "the IPUC purorts to have jursdiction to enforce the provisions of Idaho Code
§ 40-210," and that the Commission "is attempting to take upon itself the authority to police
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whether Public Road Agencies are complying with their statutory duty to minimize relocation
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costs." ACHD Brief, p. 28.
II. ISSUES PRESENTED ON APPEAL
!.J The IPUC contends the issues presented on appeal listed by ACHD in its brief are
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insufficient or incomplete, and so wil state the issues on appeal consistent with Idaho Appellate
Rule 35, as follows:
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~J 1. Does the IPUC's approval of Sections 10 and 11 ofIdaho Power's line extension tarìff
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impermissibly intrude in ACHD's jursdiction over public rights-of-way?
2. Should ACHD's appeal be dismissed because there curently is no case or controversy
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III. ARGUMENT
A. The Commission Regularly Pursued its Authority in Approving Idaho Power's Tariff
The Supreme Court's review of Commission orders "shall not be extended fuer than to
determine whether the commission has regularly pursued its authority." Idaho Code § 61-629.
The Court's review often includes deference to IPUC findings and conclusions. The Cour will
sustain factual detenninations made by the Commission "unless it appears that the clear weight
of the evidence is against its conclusion or that the evidence is strong and persuasive that the
Commission abused its discretion." Utah-Idaho Sugar Company v. Intermountain Gas Co., 100
Idaho 368, 376, 597 P.2d 1058 (1979). The Cour will sustain Commission rulings on the
meaning of technical terms in a rate tariff "where the decision is based upon a reasonable
interpretation of the instruent." Id The Court in the Utah-Idaho Sugar case affirmed that par
of the Commission's order that denied the sugar company a credit toward gas consumption
because it was based on "a reasonable reading of the tarff." Id
The IPUC approved Idaho Power's line extensiootariffbecause the purose and effect of
the tariff falls within the Commission's ratemaking authority; and does not interfere in any way
with ACHD's jurisdiction over road projects. The IPUC specifically acknowledged that its role
regarding Idaho Power's relocation costs "arses only after the highway agency determines that it
or another party is responsible for road improvement costs." Thus, Section 1 0 assIststhe
Commission with its ratemaking responsibilities. Order No. 30955, pp. 10, 12; R. VoL. IV, pp.
657,659.
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ACHD's claims about the effect of Sections 10 and 1 i ascribe much greater purose and
effect to the tariff than is normally granted a utility tarff approved by the Commission. ACHD's
difference of opinion about the effect of the tariff, paricularly Section 10, is neatly summarzed
in a dialogue between Commissioner Smith and ACHD's attorney durng the hearng on
reconsideration:
COMMISSIONER SMITH: Well, okay, I'm stil back on (the Savings Clause
of) this section, so all it says is that if you've done something like this, this
section (10) doesn't apply. If you've done something that's different, then I
guess the issue arses whether this section applies or not.
MR. SPEARS: Madam Chair, yes. It effectively instrcts highway districts,
such as Ada County Highway District which has adopted a resolution that our
resolution must -
COMMISSIONER SMITH: No, no, no, you can't-
MR. SPEARS: For it to be effective, I'm sorr, it must be substantially
similar to Rule H, Section 10.
COMMISSIONER SMITH: Well, the way I would see it that you could adopt
your resolution in whatever form you choose and it is effective because you
adopted it and it applies within:" your~~area.of jurisdiction. The issue is does
Rule H (Section 10) apply in that circumstance. I don't see any way a utilty
tariff could invalidate what a public highway agenc.y did. It just can!t
because you're operating within your area of jurisdiction. The issue
would be does Rule H apply or does it not.
MR. SPEARS: Well, Madam Chair, with all due respect, I think that you
have just made and demonstrated our concern regarding jursdiction.
COMMISSIONER SMITH: But whether Rule H (Section 10) applies or not
is for the Commission to determine. You've already made your resolution
and done your thing with regard to the roads.
MR. SPEARS: But this provision of Rule H, Section 10 states that if our
legally binding guidelines are not similar, then they're invalid.
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COMMISSIONER SMITH: No, it does not. The word "invalid" is not here
in any sense. It can't operate that way.
MR. SPEARS: Effectively it does.
COMMISSIONER SMITH: The tariff is only applicable to the utilty and
the people who are taking services under the conditions where the rules
apply. It cannot invalidate your resolution.
MR. SPEARS: Madam Chair, I guess that we reach a friendly
. disagreement on what the effect of this provision is. We view it as a direct
encroachment upon our exclusive jurisdiction.
COMMISSIONER SMITH: And I would think that you should view it as an
accommodation of your existing practices so that they don't get in the way of
what's already in place.
Tr. Vol. I, p. 60, 1.4 - p. 62, 1.2 (emphasis added).
The Commission approved Idaho Power's tarff, understanding it is applicable only to the
utility and the customers who are taking services under the conditions 'where the rules apply, and
that there is no way Idaho Power's tarff can invalidate an ACHD resolution. There is no clispute
in this case that ACHD has excIi.sive jurisdiction over roadway improvements, that ACHD can
require Idaho Power to relocate its facilities in public rights-of-way in its district, and thatACHD
determines whether Idaho Power or some other pary will bear the costs to relocate. Nor is there
any dispute that the IPUC has authority to determine the extent to which relocation costs will be
included in Idaho Power's rate base to be recovered in customer rates. The Commission
regularly pursued that authority by approving Idaho Power's line extension taiff. The
Commission's Order is entitled to a presumption of correctness and ACHD has the burden of
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IDAHO PUBLIC UTILITIES COMMISSION 13
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demonstrating the Commission's Order is arbitrar. Industrial C~stomers of Idaho Power v.
IdahoPUC, 134 Idaho 285, 288, 1 P.3d 786, 789 (2000).
B. Idaho Power's Tariff by its Terms and in Application Serves a Ratemaking Purpose for
the IPUC, and it does not Conflct with ACHD Resolution 330
Section 10 ofIdaho Power's line extension tariff assigns' or allocates costs the Company
Incurs when relocating its facilities, thus implicating the Commission's oversight of cost
recovery and customer rates for Idaho Power. ACHD's Resolution 330 serves a different
purpose altogether. ACHD noted that "Resolution 330 is much broader than just governing who
pays for utility relocations." ACHD Brief, p. 5. ACHD commits large portions of its brief to
addressing differences in the tariff and its resolution. Because much of ACHD's argument is
inaccurate, the IPUC is compelled to address it.
Idaho Power fashioned its cost allocation terms in Section 10 to mirror ACHD' s
Resolution 330, as ACHD recognizes by several statements in its brief: "the proposed addition
of Section 10 to Rule H was largely patterned after Resolution 330," and, "In fact, as the IPUC
has acknowledged, the division of relocation costs .under Rule H is the same as it is under
Resolution 330." ACHD Brief, pp. 6,22. Even ifIdaho Power's tariff and ACHD's Resolution
330 were to both apply on a project, Idaho Power's cost allocation terms do not confict with the
cost allocation terms of ACHD's Resolution 330.
The language of Section 10 supports the Commission's view that it afects cost recovery
for Idaho Power, and thus the Commission's ratemaking authority. The heading for the section
is "Relocation Costs in Public Road Rights-of-Way." (Italics added.) The lead paragraph
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IDAHO PUBLIC UTILITIES COMMISSION 14
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plainly states that Idaho Power wil relocate its facilities in a roadway "at the request of a Public
Road Agency," followed by specific provisions for recovery of the Company's cost of
relocations in different scenarios. Appendix A, p. 2; R. VoL. iv, p. 677. First, where the
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relocation is requested by a public road agency to make roadway improvements or other public
improvements, Idaho Power wil bear the cost of the relocation. Id This, incidentally, is the
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common law rule ACHD argues is violated by Section 10. ("Under the common law rule, Idaho
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Power must pay the costs to relocate its facilities at the demand of the Public Road Agencies. ")
ACHD Brief, p. 30. This tariff provision mirrors ACHD's resolution.
i.J The next paragraph of Section 10 addresses the allocation of costs to relocate Idaho
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Power's facilities when the relocation benefits both a road agency and a private developer.
Appèndix A, p. 2; R. VoL. IV, p. 677. Paragraph (b) mirrors a provision in Resolution 330:
"With regard to utility or sewer relocations required because of improvements being undertaken
J within the public rights-of-way that are partially fuded by ACHD and parially fuded by
another individual, firm or eatity,Resolution 330 provides that 'the utility and/or sewer company
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- shall be responsible for that portion of the relocation costs that -equals the percentae of
(ACHD'sJ paricipation in the right-of-way improvement costs' and that the remaining costs
'shall be the responsibility of the individual, firm or entity that provides funds for the balance of
the right-of-way improvement costs.'" ACHD Brief, p. 5.
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Paragraph (c) of Section 10 states that when the request to relocate electric facilties is
solely for the benefit of a private developer, the private developer wil pay all the costs to move
the facilities. Appendix A, p. 2; R. VoL. iv, p. 677; Order No. 30955, p. 11; R. VoL. IV, p. 658.
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IDAHO PUBLIC UTILITIES COMMISSION 15
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This provision also mirrors what is in Resolution 330: "With regard to utility or sewer
relocations required as a result of rights-of-way improvements funded by a third-party developer,
the 'responsibility for the costs of utility or sewer relocations shall be that of the developer.'"
ACHD Brief, p. 4.
There is only one difference between the cost allocation terms of Section 10 and
Resolution 330, identified by ACHD as follows: although "Section 10 of Rule H would require
a developer to pay the cost of utility relocation anytime the developer pays for improvements to a
public right-of-way that requires utility relocation," Resolution 330 "makes an exception to that
rule where the right-of-way improvements that resulted in the need for relocation 'were
scheduled to have otherwise been made by (ACHDJ within thee years of the date said
improvements are actually commenced.''' ACHD Brief, pp. 6-7. In that event, Section 1 of the
resolution controls and ACHD will look to the utility company to pay the costs.
This only difference between the tarff and Resolution 330 cannot affect ACHD's road
projects. Idaho Power understands that its tariff canot overrle ACHD's resolution. Idaho
Power testified in its comments that,' where ACHD "plans oILmaking improvements.or the
general public benefit within three years from the day the improvements begin, or from their
budgeted period, Idaho Power wil fud the cost of such relocation," as Resolution 330 requires.
Idaho Power Lowry Direct Testimony, p. 4; R. VoL. I, p. 82. Under Idaho Power's tariff
provision the Company should seek reimbursement from the developer so that these costs are not
recovered in customer rates, but this has no impact on ACHD's control of the road improvement.
Whether Idaho Power obtains reimbursement could become an issue in the Company's next rate
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IDAHO PUBLIC UTILITIES COMMISSION 16
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case if it seeks to include those costs for recovery in rates. If Idaho Power has an opportnity but
fails to collect from the developer, the Commission might determine the relocation costs should
not be included in rates, absent sound justification by the Company for failing to obtain
reimbursement. This ratemaking process and outcome can have no effect on ACHD's
jurisdiction over roadway improvements.
At page 20 of its brief, ACHD provides examples of how Idaho Power's tarff and
Resolution 330 conflict. None of the possible conflicts identified by ACHD are based on a
reasonable reading of Idaho Power's tariff or the Commission's Order No. 30955. ACHD begins
by stating: "It is easy to see how operating under two sets of regulations will reduce efficiency
and otherwse complicate relocation on public rights-of-way." ACHD Brief, p. 20. ACHD's
first example is: "a road widening project often requires the relocation of multiple utility lines
(i.e., water and/or gas) in addition to electric utility lines. For this reason, Resolution 330
requires all affected utility companies to paricipate in coordinated meetings and provide their
engineering p1ans,hy specified deadlines." Id Allocation ofIdaho Power's costs under its tariff
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and can have no effect on ACHD's scheduling of road projects.
ACHD's second example is: "Resolution 330 requires utility and/or sewer companies to
i,I.,'coordinate their activities in an attempt to eliminate duplication of roadway restoration work.'"
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Id. Nothing in Idaho Power's tarff attempts to direct coordinating or other activities by other
utilty companes, and canot conflct with Resolution 330's direction that utility and sewer
companies coordinate their activities. Appendix A, pp. 2-3; R. Vol. IV, pp. 677-678.
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IDAHO PUBLIC UTILITIES COMMISSION 17
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ACHD's final example of how Section 10 of the tariff and Resolution 330 could conflict
is: "In the event of disputes, ACHD is the ultimate decision-maker and can resolve disputes
involving each affected utility company." ACHD Brief, p. 20. ACHD posits that "if Rule H
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governs as to Idaho Power, then ACHD can only resolve the disputes involving the other utilities
and IPUC has jurisdiction over disputes involving Idaho Power, which may result in scheduling
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conficts." Id This example is based on a false assertion made earlier in ACHD's brief. At
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page 7 of its brief, ACHD states that "Section 10 of Rule H would vest IPUC with authority over
the resolution of any disputes related to utility relocation." There is no provision in Section 10 or
elsewhere in Idaho Power's tariff that provides for dispute resolution by the IPUC. Appendix A,
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pp. 2-3; R. VoL. IV, pp. 677-678. This possible conflict between Idaho Power's tarff and
Resolution 330 is fabricated, and wil be addressed later in this brief.
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1. Section 10 Embodies and thus is Consistent with the Common Law Rule
In the final section of its argument on appeal, ACHD states that "Under the common law
rule, Idao.Power must pay the costs to relocate its facilities at the demand of the Püblic-Road ._.-_.. ....., -
Agency," and "Ida.1.o Power canot circúmvent the. common law rule through its Rule H Tariff. '"
ACHD Brief, p. 30. Neither the IPUC nor Idaho Power contest these statements, as the common
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law principle is embodied in paragraph (a), Section 10 of the line extension tariff. Indeed, the
I.,Commission's Order is in agreement with the common law rule. Order No. 30955, pp. 9-13; R.
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VoL. IV, pp. 656-660.
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ACHD does not explain how Section 10, which states the common law principle as the
primar cost allocation scenario, nonetheless violates the principle and . must be set aside.
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IDAHO PUBLIC UTILITIES COMMISSION 18
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Perhaps ACHD has in mind the possibilty discussed above, where Idaho Power may seek
reimbursement for relocation costs from a developer after ACHD has assigned a portion of the
.1J road improvement costs to the developer. The common law rule is not abrogated by Idaho
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Power's recovery of costs from a developer, or by the IPUC's approval ofthe Company's tarff
to allow for reimbursement of costs paid by Idaho Power so that these costs are not passed on to
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the Company's customers.
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2. Neither the "Savings Clause" of Section 10 nor the New Section l11nterferes with
ACHD's Jurisdiction over Road Improvements
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a. Savings Clause. ACHD asserts that the "Savings Clause" Idaho Power added to
Section 10 during reconsideration ofIPUC Order No. 30853 is "the most clear usuration of the
1.J Public Road Agencies' exclusive jurisdiction over public rights-of-way." ACHD Brief, p. 23.
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The Savings Clause states that the Section 10 cost allocation terms "shall not apply to utilty
relocations within public road rights-of-way of Public Road Agencies which have adopted
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Third-Party Beneficiaries that are substantially similar to the rules set out in Section 10 of Rule
H." Appendix A, p. 3; R. VoL. IV, p. 677. ACHD recognizes that Section 10 was patterned after
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I..its Resolution 330, and that the cost allocation provisions of both are the same. ACHD
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nonetheless argues at this point in its brief that there are differences and the effect of the Savings
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Clause could render its Resolution 330 "null and void." ACHD Brief, p. 25. The IPUC
approved the addition of the Savings Clause afer concluding it "does not operate to invalidate or
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void a road agency's legally enacted guidelines for the allocation of utilty relocation costs."
Order No. 30955, p. 20; R. VoL. iv, p. 667.
It canot be seriously argued that Section 10 and Resolution 330 are not substatially
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similar, notwithstanding ACHD's effort to distinguish them for the purposes of its argument.
ACHD notes that Section 10 "lacks many of the detailed provisions contained in Resolution 330
J regarding notice, coordination meetings, and deadlines for submitting engineering plans and
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cooperation requirements." ACHD Brief, p. 24. This statement clearly shows how ACHD
misunderstands the purose of the line extension tariff. The tariff does not contain these
I.J provisions because its purpose is not to regulate utility relocations in roadways, its purpose is to
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allocate the costs Idaho Power incurs to relocate its facilities, with a concomitant effect on the
Company's customer rates.
.J The effect of the Savings Clause is to eliminate any possible conflict between Idaho
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Power's tariff and ACHD's Resolution 330. Because Section 10 and Resolution 330 are
substantially similar in their cost allocation provisions, that ends any dispute between ACHHand
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Idaho Power or the IPUC. As the Commission explained In.its Order, the Sayings Clause means
that Section 10 of the tarff does not apply when ACHD directs road improvements in Idao
Power's service area, foreclosing any possibility of a conflict between Resolution 330 and
Section 10. Order No. 30955, p. 20; R. VoL. iv, p. 667.
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ACHD misstates the impact of the Savings Clause were it to come into play: "Public
Road Agencies are wholly deprived of jurisdiction if the regulations they pass ar superseded
.-unless they are the same as Rule H." ACHD Brief, p. 24. This statement is based on a false
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premise. The Savings Clause states whether Idaho Power's Section 10 is in effect or not, it has
no impact on ACHD's jurisdiction. The Clause affects the allocation of relocation costs for
recovery by Idaho Power, and neither by its terms or application could it deprive ACHD of
jurisdiction.
If Section 10 were effective where a road agency either had no cOst allocation rules or
had cost allocation rules substantially different from Section 10, the result would be the same.
The Commission would expect Idaho Power to account for its costs on a project as Section 10
directs. If the Company did not obtain reimbursement, for example, under circumstances where
Section 10 would provide for it, the burden would fall on Idaho Power to explain why those costs
should nonetheless be included in customer rates. The Savings Clause could affect Idaho
Power's recovery of relocation costs through customer rates, but it canot "wholly deprive" or
even minimally impact ACHD's jurisdiction over its road projects. Nothing in the Savings
Clause or Section 10 suggests the IPUC can attempt to question a road agency's cost allocation
rules, whether similar to Section 10 or not.
b. Section 11. ACHD's arguments about Section 11 also are-groundless. After oral
argument on reconsideration, the Commission added Section 1 1 to the line extension tariff. It
reaffirms the Company's statutory obligation to work with road agencies, and others to minimize
utility relocation costs as directed by Idaho Code § 40-210. Section 11 simply states that
"pursuat to Idaho Code § 40-210, the Company will paricipate in project design or
development meetings upon receiving wrtten notice from the Public Road Agency that a public
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IDAHO PUBLIC UTILITIES COMMISSION 21
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road project may require the relocation of distribution facilities." Appendix A, p. 3; R. VoL iv
p.678.
ACHD characterizes Section 11 as an attempt by the IPUC "to take upon itself the
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authority to police whether Public Road Agencies are complying with their statutory duty to
minimize relocation costs." ACHD Brief, p. 28. ACHD claims Section 11 "purorts to mandate
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that Public Road Agencies and other paries involved in public road projects that may require
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utility relocation 'use their best efforts to find ways to eliminate the cost o.f relocating utility
facilities, or if elimination. is not feasible, to minimize the relocation costs to the maximum
extent reasonably possible.'" ACHD Brief, p. 10.
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ACHD's claims about the meanng and purose of Section 11 are incorrect. This is a
statement of commitment by Idaho Power to follow its statutory duty to attend planing meetings
and has no effect on ACHD. Section 11 parallels the language of Idaho Code § 40-210. It
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canot reasonably be constred as an attempt by the IPUC "to take upon itself the authority to
police whether Public Road Agencies are complying with their statutory--duty to minimize
J relocation costs." ACHD Brief, p. 28: Lest there:bany question othei:wise, the final sentence
clarfies that "This provision shall not limit the authority of the Public Road Agency over the
public road right-of-way." Appendix A, p. 3; R. VoL IV, p. 678.
j ACHD's argument that "the IPUC has no jursdiction to enforce Idaho Code § 40-210 or
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otherwse regulate the actions of Public Road Agencies" misconstrues the language of Section
1 i. ACHD Brief, p. 29. Section 11 merely requires Idaho Power to paricipate in project design
and development meetings after receiving notice of such meetings from the road agency.
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Whether Section 11 existed or not, the IPUC might inquire into Idaho Power's compliance with
Idaho Code § 40,.210, especially if any non-compliance might impact its costs and thus customer
iJ rates. See Washington Water Power Co. v. Kootenai Environmental Allance, 99 Idaho 875, 881,
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591 P.2d 122 (1979) (The IPUC is authorized to investigate a public utility's "practices" which
mayor do affect the rates charged or the services sought or rendered which are within the
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Commission's ratemaking fuctions). ACHD's speculation about hypothetical circumstances
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where the Commission might inquire into public road agencies' compliance with Idaho Code §
40-210 is completely baseless. The Legislature may care if ACHD is complying with the lette~
and spirit of Idaho Code § 40-210; the Commission's concern is whether utilities are.
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C. ACHD's Appeal Should be Dismissed Because there is no Actual Case or Controversy
Between ACHD and the IPUC
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ACHD argued to the Commission that Idaho Power's amendments to its line extension
tariff "are unauthorized usurations of the clear and exclusive jursdiction of Idaho's highway
1__J districts and public road agencies by the IPUC." ACHD Brief on Reconsideration, p. 22; R. VoL.
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III, p. 480. ACHD asserted that the tariff, to the extent it is applicable "to the state or any entity
of local government, including but not limited to public road agencies and local improvement
districts, it is a violation of the Idaho Constitution." Id. Finally ACHD claimed the tarff is "an
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unconstitutional and legally unauthorized abrogation or amendment of the common law rule that
utilities pay the cost of relocation of their facilities within the public rights-of-way." Id. ACHD
I_J requested the IPUC issue an order "strking Rule H Section 10 and applicable portions of Rule H
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Section 1." Id.
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ACHD's allegations and request for relief were made in a case where Idaho Power was
seeking approval of its tarff amendments. . ACHD requested broad declaratory relief on behalf
of all road agencies and any state or local entity tlat might be involved in road projects, even
before the tarff went into effect. ACHD now requests the same relief from the Supreme Court.
The relief ACHD requests in essence is in the natue of a declaratory judgment.
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The Supreme Court has held that "as a general rule, a declaratory judgment can only be
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rendered in a case where an actual or justiciable controversy exists." Harris v, Cassia County,
106 Idaho 513, 516, 681 P.2d 988 (1984) (citations omitted). The Cour in that case adopted the
following guideline for analyzing the "controversy" issue from the United States Supreme Court:
A 'controversy' in this sense must be one that is appropriate for judicial
determination. . " A justiciable controversy is thus distinguished from a
difference or dispute of a hypothetical or abstract character; from one that is
academic or moot. . .. The controversy must be definite and concrete, touching
the legal relations of 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.
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Harris v. Cassia County, 106 Idaho 513, 516, 68lP.2d 988,991, quoting Aetna Life insurance
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Co, v. Haworth, 300 U.S. 227,57 S.Ct. 461, 81 L.Ed. 617 (1937). See also Miles~. Idaho Power
Co., 116 Idaho 635, 642, 778 P.2d 757, 764 (1989) (A declaratory judgment action must raise
j issues that are definite and concrete, and must involve a real and substantial controversy as
opposed to an advisory opinion based upon hypothetical facts).
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is not in effect for ACHD's projects. Idaho Power's line extension tariff does not apply to
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IDAHO PUBLIC UTILITIES COMMISSION 24
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ACHD and there can be no conflct between the tariff and ACHD's Resolution 330. ACHD's
speculation about what might happen if it were to change its Resolution 330 is simply presenting
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Even if Idaho Power's tarff were to apply when ACHD directs road improvement
projects in Idaho Power's service area, its application would have no affect on the way ACHD
conducts its business. ACHD would continue to assign relocation costs to Idaho Power under
Resolution 330; the IPUC would continue to -assign Idaho Power's costs for ratemaking purposes
consistent with the Company's line extension tariff. Instead of presenting a real and substantial
controversy admitting of specific relief, ACHD seeks an opinion advising what the law would be
given a hypothetical state of facts. ACHD's allegations regarding the effect of the tariff is
opinion unsupported by fact or legal analysis. ACHD presents little more than ¡'a friendly
disagreement on what the effect of (Section 10J is." Tr. VoL. I, p. 61, II. 20-22.
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There is evidence ACHD is less than candid and stretches to find a conflct between
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Section 10 and its own Resolution 330, and to support groundless allegations that the IPUC "has
attempted to usur tIie Public Road Agencies' exclusive jurisdiction over public rights-of-way."
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ACHD Brief, p. 31. A prime example is ACHD's reference to a non-existent dispute resolution
provision in Idaho Power's tarff. ACHD states at page 7 of its brief that "Section 10 of Rule H
would vest ¡PUC with authority over the Resolution of any disputes related to utility relocation,
ìj whereas Resolution 330 leaves the dispute Resolution process under the sole authority of
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ACHD." Following this sentence, ACHD provides the citation "See R. VoL. III, p. 535." ACHD
Brief, p. 7. The document at page 535, volume III of the Record is a relocation flow-char that
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Idaho Power attached to reply comments it filed durng the initial comment period. Nothing in
the attachment identifies a provision in Section 10 that vests the IPUC with authority to resolve
ìJ disputes related to utility relocation. There is no dispute resolution term in any part of the line.
extension tarff, and no discussion by the IPUC of a dispute resolution provision in either Order
No. 30853 or Order No. 30955.
j After making the unequivocal assertion that Section 10 vests the IPUC with authority to
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resolve disputes, ACHD thoughout its brief mentions problems that may arise from the non-
existent dispute resolution provision. At page 20, ACHD reiterates that "according to Rule H,
!.J the resolution of any disputes involving Idaho Power falls under the jursdiction of IPUC, while
resolution of all other disputes remains under the jurisdiction of ACHD." ACHD Brief, p. 20.
ACHD identifies a potential problem from this alleged conflct:
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For example, scheduling disputes may arise as to which utility will relocate its
lines first. If Resolution 330 governs as to all utility and sewer companies,
ACHD can efficiently resolve the dispute. However, if Rule H governs as to
Idaho Power, then ACHD can only resolve the disputes involving the other
utilties and IPUC has jursdiction ever disputes involving Idaho Power, which
may result in scheduling conflicts. .
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ACHD Brief, p. 20.
.i ACHD later asserts, without reservation or citation to the record, that "Rule H purorts to
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give IPUC jurisdiction of disputes, while Resolution 330 leaves dispute resolution in the
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jurisdiction of ACHD." ACHD Brief, pp. 24-25. Finally, ACHD highlights a potential problem
of the phantom dispute resolution provision at page 28: "Under ths (Section 11) provision,
j particularly given that the IPUC asserts jurisdiction to resolve disputes, the IPUC is attempting
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to take upon itself the authority to police whether public road agencies are complying with their
statutory duty to minimize relocation costs." ACHD Brief, p. 28 (italics added). ACHD's
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discussion of a non-existent dispute resolution term in Idaho Power's tarff goes beyond an
advocate's hyperbole.
Another example that ACHD is less than forthrght is its mischaracterizations of
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Commission decisions or motives. At page 9 of its brief, ACHD notes the IPUC removed the
provision of Section 10 requiring that Idaho Power's relocation costs be paid in advance when a
private developer is paying costs. ACHD states: "Notably, in striking down that provision, the
IPUC did not acknowledge that the provision for 'advance payment' usured the exclusive
jursdiction of Public Road Agencies to demand relocation on terms determined by the Public
Road Agencies," ACHD Brief, p. 9. In striking the advance payment term, the Commission
specifically agreed with ACHD's argument that "requiring advance payments may hinder the
timely completion of improvements and relocations within the public rights-of-way." Order No.
30955, p. 19; R. VoL. IV, p. 666. Whther this is sufficient acknowledgement that "Public Road
1j Agencies can demand relocation on terms~deterned by the Public Road Agencies," it is clear
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the IPUC removed the one provision in Section 10 it believed might result in Idaho Power
hindering ACHD's control of road projects.
j Additional examples of ACHD's unfair argument are its inaccurate statements about the
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Commission's Orders and the effect of Idaho Power's tariff. ACHD asserts that "Despite the
absence of statutory authority, the IPUC has approved a proposed modification to Idaho Power's
J Rule H Tarff, which now purports to regulate the relocation of utility lines on public rights-of-
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way." ACHD Brief, p. 1. At another point, ACHD claims that "the IPUC erroneously
concluded that it has authority to regulate utility relocation under Idaho Code §§ 61~502 and 61~
i.J 503." ACHD Brief, p. 21. At page 25 of its brief, ACHD states "The IPUC's conclusion that
Rule H (Savings Clause) preempts any regulations adopted by Public Road Agencies that are not
"substantially similar" is backwards." ACHD Brief, p. 25. These statements are inaccurate and
1.J misleading.
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The Commission approved Idaho Power's tariff because it determined it "in no way
usurps the authority of ACHD or any other highway district or political subdivision." Order No.
j,J 30955, p. 11; R. VoL. IV, p. 658. It is simply false to say the IPUC concluded "that it has
authority to regulate utility relocation under Idaho Code §§ 61~502 and 61-503." The IPUC
specifically affirmed "that highway agencies have the authority to determine when Idaho Power
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must relocate its distrbution facilities and whether any other pary is responsible for paying for
the road improvement costs." Order No. 30955, p. 10; R. VoL. iv, p. 657. The Commission
approved the Savings Clause because it "does not operate to invalidate or void a road agency's
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(italics added); R. VoL. IV, p. 667.
iv. CONCLUSION
¡..1 The only point of contention in this case is the effect of Idaho Power's line extension
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tarff, Sections 10 and 11. Because Section 10 by its terms does not apply to ACHD's road
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projects, ACHD raises its argument in a hypothetical debate. The specific language of the tariff
limits it to allocation of Idaho Power's relocation costs, and the Commission clearly stated its
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RESPONDENT BRIEF OF THE
IDAHO PUBLIC UTILITIES COMMISSION 28
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understanding that the tariff affects only the IPUC's ratemaking function and canot invalidate
ACHD's road improvement resolution. Idaho Power proposed the tariff provisions to ensure that
iJ its customer rates include the appropriate costs of relocating facilities in public roadways.
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ACHD nonetheless insists the tarff usurs its authority over regulation of road improvements
and that it is an attempt by the IPUC to regulate public rights-of-way. However, it canot
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does not. ACHD may harbor its own view of the reach of Idaho Power's tariff, but it must be
supported by something besides broad allegations based on a complete misunderstanding of the
ratesetting process to constitute a proper appeal.
The Commission requests that ACHD's appeal be dismissed and that the Commission be
awarded costs on appeaL.
DATED at Boise, Idaho this 16th day of July 2010.
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. -Weldon B; StutZman
Krstine A. Sasser
Deputy Attorneys General
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Attorneys for the
Idaho Public Utilities Commission
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û:ACHD Brief_ ws
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RESPONDENT BRIEF OF THE
IDAHO PUBLIC UTILITIES COMMISSION 29
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CERTIFICATE OF SERVICE
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I HEREBY CERTIFY THAT I HAVE THIS 16TH DAY OF JULY 2010,
SERVED THE FOREGOING RESPONDENT BRIEF OF THE IDAHO PUBLIC
UTILITIES COMMISSION, IN SUPREME COURT DOCKET NO. 37294-2010, BY
MAILING TWO COPIES THEREOF, POSTAGE PREPAID, TO THE FOLLOWING:
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LISA D. NORDSTROM
DONOVAN E. WALKER
IDAHO POWER COMPANY
1221 W. IDAHO STREET
POBOX 70
BOISE, ID 83707-0070
MERL YN W. CLARK
D. JOHN ASHBY
HA WLEY TROXELL ENNIS & HAWLEY, LLP
877 MAIN STREET, SUITE 1000
PO BOX 1617
BOISE, ID 83701-1617
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SECRETARY
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J CERTIFICATE OF SERVICE
APPENDIX A
SECTIONS 10 AND 11
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Section 1 Additions and Amendments:
Easement is the Company's legal right to use the real propert of another for the
purpose of installing or locating electrc facilties.
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Prior Right of Occupancy is a designated area within the public road right-of-way
where the Company and the Public Road Agency have agreed that the costs of the.
Relocation of facilties in the designated area wil be borne by the Public Road
Agency. For example, a Prior Right of Occupancy may be created when the Public
Road Agency expands the public road right-of-way to encompass a Company
Easement without compensating the Company for acquiring the Easement but the
paries agree in writing that the subsequent Relocation of distrbution facilties
within the designated area wil be borne by the Public Road Agency.
Local Improvement District (LID) is any entity created by an authorized governing body
under the statutory procedures set forth in Idaho Code, Title 50, Chapter 17 or Idaho Code §
40-1322. For the purose of Rule H, the term LID also includes Urban Redevelopment
projects set forth in Idaho Code, Title 50, Chapter 20.
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Public Road Agency is any state or local agency which constrcts, operates,
maintains Of-administers public road rights-of-way in Idaho, including where
appropriate the Idaho Transportation Deparent, any city or county street deparent,
or a highway distrct.
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Private Beneficiar is any individual, firm or entity that provides funding for road
improvements performed by a Public Road Agency or compensates the Company for
the Relocation of distribution facilties as set fort in Section 10. A Private Beneficiar
may include, but is not limited to, real estate developers, adjacent landowners, or
existing customers of the Company.
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APPENDIX
ORDERNO. 30955
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10. Relocation Costs in Public Road Rights-of-Way
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The Company often locates its distrbution facilties within state and local public road
rights-of-way under authority of Idaho Code § 62-705 (for locations outside Idaho city
limits) and the Company's city franchise agreements (for locations within Idaho city
limits). At the request of a Public Road Agency, the Company wil relocate its distribution
facilties from or within the public road rights-of-way. The Relocation may be for the
benefit of the general public, or in some cases, be a benefit to one or more Private
Beneficiares. Nothing in this Section bars a Local Improvement District (LID) from
voluntarly paying the Company for Relocations.
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The Company's cost of Relocations from or within the public road rights-of-way shall
be allocated as follows:
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a. Road Improvements Funded by the Public Road Agency - When the
Relocation of distrbution facilties is requested by the Public Road Agency
to make roadway improvements or other public improvements, the Company
wil bear the cost of the Relocation.J
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b. Road Improvements Parially Funded by the Public Road Agency -:
When the Public Road Agency requires the Relocation of disti:i1?utl()n.
facilties for the benefit of itself (or an LID) and a Private Beneficiar, the
Company wil bear the Relocation costs equal to the percentage of the
Relocation costs allocated to the Public Road Agency or LID. The
Private Beneficiar wil pay the Company for the Relocation costs equal to the
percentage of the road improvement costs allocated to the Private Beneficiar.
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Road Improvements not Funded by the Public Road Agency - When the
Relocation of distrbution facilties in the public road rights-of-way is solely
for a Private Beneficiar, the Private Beneficiar wil pay the Company for
the cost of the Relocation.
2 APPENDiX
ORDER NO. 30955
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d. Prior Right of Occupancy - When the Company and the Public Road
Agency have entered into an agreement regarding a Private Right of
Occupancy, the costs of Relocation in such designated area wil be borne
by the Public Road Agency, or as directed in the agreement.
All payments from Private Beneficiares to . the Company under this Section shall be
based on the Company's Work Order Cost.
This Section shall not apply to Relocations within public road rights-of-way of Public Road
Agencies which have adopted legally binding guidelines for the allocation of utilty
relocation costs between the Company and other paries that are substatially similar to
the rules set out in Section 10 of Rule H.
11. Eliminating or Minimizing Relocation Costs in Public Road Rights.-of-
Way
Pursuant to Idaho Code § 40-210,' the Company wil paricipate in project design or
development meetings upon receiving wrtten notice from the Public Road Agency
that a public road project may require the relocation of distribution facilties. The
Company and other paries in the planing process wil use their best efforts to find
ways to eliminate the cost of relocating utilty facilties, or if elimination is not
~- feasible, to minimize the relocation costs to the maximum extent re as omibly possible.
This provision shall not'limit the àuthority of the Public Road Agency over the public
road right-of-way.
3 APPENDIX
ORDER NO. J09S5