20230117Petition for Review and Stay.pdf

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 1

MARK R. FULLER (ISB NO. 2698)
DANIEL R. BECK (ISB NO. 7237)
PAUL L. FULLER (ISB NO. 8435)
FULLER & BECK
410 MEMORIAL DRIVE, SUITE 201
P.O. BOX 50935
IDAHO FALLS, ID 83405-0935
TELEPHONE: [phone]
EMAIL: [e-mail]
EMAIL: [e-mail]

ATTORNEY FOR RESPONDENT

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

DONALD SORRELLS,

Complainant,

v.

SUNNYSIDE PARK UTILITIES,
INC.,

Respondent.
______________________________
) Case No.GNR-U-22-03
)
)
)
) PETITION FOR REVIEW OF
) INTERLOCUTORY ORDER AND
) PETITION FOR STAY AND
) PETITION TO DESIGNATE ORDER
) AS FINAL
)
)
)

COMES NOW the Respondent, Sunnyside Park Utilities, Inc.
(“SPU”), by its counsel of record, Paul L. Fuller, pursuant to
IPUC Rule 322, and petitions the IPUC to review interlocutory
Order No. 35645.1 This Petition also includes a Petition to Stay
Order No. 35645 under IPUC Rule 324 and a Petition to Designate
Order as Final under IPUC Rule 323. This Petition is based upon
the arguments, contained herein, documents previously filed with
the IPUC, the Request for a Regulatory Taking Analysis filed

1 Although Order No. 35645 is a review of Order No. 35513, it was not
designated a Final Order under IPUC Rule 323.
RECEIVED
Tuesday, January 17, 2023 4:44:53 PM
IDAHO PUBLIC
UTILITIES COMMISSION

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 2

herewith, and the Second Declaration of Doyle Beck, submitted
herewith.
ARGUMENT
In Order No. 35645, the Idaho Public Utilities Commission
(“IPUC”) properly ignored the “Staff Criteria”, as an improper
attempt to extend IPUC‟s jurisdiction which was not justified
under the limited jurisdiction delegated to the IPUC by the Idaho
Legislature. However, IPUC improperly determined that SPU is both
a “corporation” and a “water corporation” under applicable Idaho
statutes and case law, in order to allow IPUC to exercise
jurisdiction over SPU. For the following reasons, IPUC is in error
in its analysis of Idaho statutes and case law, and is without
jurisdiction over SPU.
1. Idaho Code § 61-104 – The Absence of Evidence is not
Evidence.
In Order No. 35645, IPUC asserts that it has authority to
exercise jurisdiction over SPU based upon a lack of evidence that
SPU is “operated” for service at cost and not for profit.
Specifically, Order 35645 states as follows:
Based upon the lack of evidence in the record concerning
the operating cost of the Company, the Commission cannot
find that the Company is exempt from Commission
regulation under Idaho Code § 61-104 as both organized,
and operated, for service at cost and not for profit.
See Order No. 35645, p. 7. IPUC makes a presumption that the lack
of evidence that SPU is “operated” for service at cost and not for

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 3

profit justifies IPUC‟s jurisdiction over SPU. IPUC‟s analysis
contradicts many years of Idaho Supreme Court rulings, which the
IPUC is without authority to ignore.
The Idaho Supreme Court has repeatedly stated that "[t]he
Idaho Public Utilities Commission has no authority other than that
granted to it by the legislature. It exercises a limited
jurisdiction, and nothing is presumed in favor of its
jurisdiction." Miles v. Idaho Power Co., 116 Idaho 635, 644, 778
P.2d 757 (1989) (emphasis added); see also Idaho State
Homebuilders v. Washington Water Power, 107 Idaho 415, 418, 690
P.2d 350, 353 (1984); Washington Water Power Co. v. Kootenai
Environmental Alliance, 99 Idaho 875, 591 P.2d 122 (1979); United
States v. Utah Power & Light Co., 98 Idaho 665, 570 P.2d 1353
(1977); Lemhi Tel. Co. v. Mountain States Tel. & Tel. Co., 98
Idaho 692, 571 P.2d 753 (1977); Arrow Transp. Co. v. Idaho Public
Utilities Comm'n, 85 Idaho 307, 379 P.2d 422 (1963).
The Idaho Supreme Court has also stated as follows with
regard to the IPUC:
As a general rule, administrative authorities are
tribunals of limited jurisdiction and their jurisdiction
is dependent entirely upon the statutes reposing power
in them and they cannot confer it upon themselves,
although they may determine whether they have it. If the
provisions of the statutes are not met and compliance is
not had with the statutes, no jurisdiction exists. Arrow
Transp. Co. v. Idaho Public Utilities Comm'n, supra.
Washington Water Power Co. v. Kootenai Environmental Alliance, 99

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 4

Idaho 875, 879, 591 P.2d 122 (1979) (emphasis added). If
jurisdiction is not conclusively established under the statute,
jurisdiction does not exist by default.
As noted in Order No. 35645, no evidence is in the record
establishing whether SPU is “operated” at cost and without profit.
Based upon this complete lack of evidence, the IPUC presumes that
SPU is operating for profit in order to justify exercising
jurisdiction over SPU. Such presumption is in direct violation of
Idaho case law, and further presumes without evidence that SPU is
acting in violation of Idaho‟s Nonprofit Corporation Act.
IPUC‟s presumption that SPU is operating in violation of
Idaho Code Section 30-30-904 is contrary to the basic
Constitutional Due Process requirement of a presumption of
innocence. The U.S. Supreme Court has stated that the “presumption
of innocence, although not articulated in the Constitution, is a
basic component of a fair trial under our system of criminal
justice." Estelle v. Williams, 425 U.S. 501, 503, 96 S.Ct. 1691
1692, 48 L.Ed.2d 126, 130 (1976); see also State v. Baeza, 161
Idaho 38, 40, 383 P.3d 1208 (2016).
Central to the right to a fair trial, guaranteed by the Sixth
and Fourteenth Amendments, is the principle that "one accused
of a crime is entitled to have his guilt or innocence
determined solely on the basis of the evidence introduced at
trial, and not on grounds of official suspicion, indictment,
continued custody, or other circumstances not adduced as
proof at trial.
Holbrook v. Flynn, 475 U.S. 560, 567, 106 S.Ct. 1340 1345, 89

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 5

L.Ed.2d 525, 533–34 (1986)(emphasis added); quoting Taylor v.
Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930 1934, 56 L.Ed.2d 468,
474–75 (1978); see also Baeza, 161 Idaho at 40-41. Making a
determination of guilt based upon an admitted lack of proof, is
nothing short of a Due Process violation. “The legislature [and by
extension, administrative agencies] may not enact directly that a
defendant shall be deprived of the presumption of his innocence
and required to assume the burden of proving that a crime has not
been committed, or that he was not connected therewith.” On
Rehearing, 33 Idaho 218, 219-20 (1920). The State of Idaho, and
its agency, the IPUC, have no authority to presume SPU is
violating Idaho‟s Nonprofit Corporation Act or to act based upon
“official suspicion” of a violation.
IPUC is taking the position that the burden is on SPU to
establish IPUC‟s lack of jurisdiction, when the Idaho Supreme
Court has made clear that the burden is on the IPUC (or in this
case, arguably the Complainant)2 to establish IPUC has
jurisdiction. Nothing is presumed in favor of jurisdiction. The
complete absence of evidence establishing IPUC jurisdiction
necessarily means IPUC lacks jurisdiction. The Idaho Supreme Court
is clear that until statutory compliance has been met establishing

2 See Steele v. City of Shelley, 151 Idaho 289, 255 P.3d 1175 (2011): “Once
jurisdiction has been called into question, the party asserting jurisdiction
has the burden of proving jurisdictional facts. Schneider v. Sverdsten
Logging Co., 104 Idaho 210, 214 n. 2, 657 P.2d 1078, 1082 n. 2
(1983)(emphasis added); citing Taylor v. Portland Paramount Corp., 383 F.2d
634, 639 (9th Cir.1967)" Steele, 151 Idaho at 294.

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 6

jurisdiction, no jurisdiction exists.
The IPUC‟s interpretation of Section 61-104 would subject all
non-profits to IPUC jurisdiction upon their initial formation or
conversion. IPUC‟s interpretation would require all non-profits to
apply for Certificates of Convenience and Necessity when
constructing water systems, because by definition, no evidence of
operational cost or history of distributions can exist until after
such system becomes operational. Such universal presumption in
favor of jurisdiction is not consistent with Idaho case law, and
would effectively destroy the non-profit exemption identified in
Idaho Code Section 61-104. If IPUC requires definitive evidence
that an entity is “operated” as a non-profit in order to prevent
jurisdiction (as opposed to requiring such evidence by a
complainant to exercise jurisdiction), IPUC is necessarily
interpreting the statute to grant IPUC jurisdiction over all non-
profits upon incorporation or conversion, with continuing
jurisdiction until such time that IPUC is satisfied that the
entity is operated as a non-profit, which may take months or years
to develop. The IPUC has not identified any basis to presume
jurisdiction by default over all newly formed or converted non-
profit entities.
Based upon Order No. 35645, the IPUC recognizes that there is
no evidence to establish that SPU “operates” for profit. Until it
is established that SPU is operating for profit, SPU is not a

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 7

“Corporation” under Section 61-104. Until jurisdiction is
conclusively established, no jurisdiction exists. IPUC must
decline to exercise jurisdiction based upon its own
acknowledgement that no evidence exists establishing jurisdiction.
2. Idaho Code § 61-125 cannot be Ignored.
SPU disagrees with IPUC‟s attempt to overturn or distinguish
Stoehr v. The Natatorium Co., 34 Idaho 217, 200 P. 132 (1921).
Members of the IPUC have not been appointed or elected to the
Idaho Supreme Court. Only that Supreme Court may decide whether
“Stoehr remains good law.” See Order No. 35645, p. 8. Until the
Supreme Court reverses the Stoehr holding, the oaths of office
taken by the members of the Commission require that the Stoehr
holding be obeyed. This fact has been recognized by the Idaho
Industrial Commission, which held that “it is not the role of this
Commission to overrule Idaho Supreme Court decisions. Only the
Court itself has that prerogative.” See Jackman, 090294 IDWC, 86-
552345 (Idaho Industrial Commission Decisions, 1994).3
Stoehr is clear that there are problematic constitutional
concerns if all corporations which provide water for compensation
are deemed “water corporations”. Id. at 221. Verska v. Saint
Alphonsus Reg’l Med. Ctr., 151 Idaho 889, 265 P.3d 502 (2011),
addresses statutory construction as it relates to legislative
intent, but nothing in Verska limits the Court‟s ability to

3 A copy of this decision can be provided to IPUC upon request.

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 8

address the constitutionality of statutory interpretations, or to
recognize common law elements where necessary to prevent
constitutional violations. If Verska overturned the Stoehr Court‟s
decision that there must be “unequivocal intent to dedicate itself
to public use”, then the question regarding the constitutionality
of Idaho Code Section 61-125 identified in Stoehr must now be
addressed. A clear reading of Stoehr establishes that if the
“unequivocal intent” requirement was not imposed, then Idaho Code
Section 61-125 is unconstitutional. As stated in Stoehr, the IPUC
must not “fail to appreciate and respect constitutional
limitations.” Stoehr, 34 Idaho at 221.
Stoehr has been cited approvingly in the following non-
exclusive list of cases:
a. Coastal States Gas Transmission Co., Inc. v. Alabama
Public Service Com'n, 524 So.2d 357, 362 (Ala. 1988):
“…to fall into the class of a public utility, a business
or enterprise must be impressed with a public interest
and that those engaged in the conduct thereof must hold
themselves out as serving or ready to serve all members
of the public, who may require it, to the extent of
their capacity.”
b. Grever v. Idaho Telephone Co., 499 P.2d 1256, 94 Idaho
900 (1972): “A corporation becomes subject to regulation
by the Idaho Public Utilities Commission as a public
utility when the business of the corporation becomes
devoted to public use or when it holds itself out as
ready, able and willing to serve the public or some
portion of the public.”
c. Public Utilities Commission of State of Idaho v.
Natatorium Co., 36 Idaho 287, 211 P. 533 (1922): In a
secondary action to Stoehr, involving an attempt by the
IPUC to exercise jurisdiction over The Natatorium, which
conveyed water to 276 users, the Supreme Court again
declared that the Natatorium was not a public utility.

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 9

“The water being private water, it was private property
and could not be impressed with a public use and
subjected to the jurisdiction of the commission without
the consent of [The Natatorium], express or implied, for
to so hold would be in effect to take its property
without due process of law.” Id. at 291 (emphasis
added).
d. Borough of Ambridge v. P. S. C, 108 Pa.Super. 298, 165
A. 47 (Pa. Super. Ct. 1933).
e. Rural Electric Co. v. State Board of Equalization, 57
Wyo. 451, 120 P.2d 741 (Wyo. 1942).
f. Inland Empire Rural Electrification, Inc. v. Department
of Public Service of Washington, 199 Wash. 527, 92 P.2d
258 (Wash. 1939).
Stoehr remains good law. The IPUC‟s attempt to distinguish or
overturn Stoehr, ignores the Constitutional Due Process violation
issues which the Stoehr and Natatorium Courts were explicitly
attempting to avoid. At no time has the Idaho Supreme Court
overturned Stoehr’s or Natatorium’s requirement that there must be
a dedication to public use for a water corporation to be regulated
by the IPUC. Such common-law requirement is recognition that to
hold otherwise would render Section 61-125 constitutionally
invalid, which the Supreme Court refused to declare. SPU submits
herewith a Request for Regulatory Taking Analysis, based upon the
Supreme Court recognition in Natatorium that IPUC exercising
jurisdiction over a water corporation, where no public dedication
has occurred, constitutes a taking and due process violation. See
Natatorium, 36 Idaho at 291. The filing of this request tolls any
deadline imposed by the IPUC in this proceeding until a response
to such request is provided by the IPUC. See Idaho Code Section

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 10

67-8003(4).
In Public Utilities Commission of State of Idaho v.
Natatorium Co., 36 Idaho 287, 211 P. 533 (1922), providing water
to 276 customers was not deemed to be a public dedication of a
water company. In that action, the Supreme Court held that “the
mere fact of distribution or the receiving of compensation for the
use thereof, in the absence of an unequivocal intention to
dedicate to a public use, would not be such a use as would make
the [Natatorium] a public service corporation.” Id. at 306.
The mere fact that SPU distributes to and receives
compensation from 19 customers does not make SPU a public service
corporation. IPUC‟s secondary argument regarding Stoehr’s holding,
found on Page 9 of Order No. 35645, directly contradicts the
Supreme Court‟s decision in Natatorium, where the IPUC was
attempting to assert jurisdiction over an entity which served 276
customers. Public Utilities Commission of State of Idaho v.
Natatorium Co., 36 Idaho 287, 211 P. 533 (1922), has cited
approvingly in the following non-exclusive list of cases:
a. Baker v. Ore-Ida Foods, Inc., 95 Idaho 575, 513 P.2d 627
(1973).
b. Maher v. Gentry, 67 Idaho 559, 186 P.2d 870 (1947).
c. Jones v. McIntire, 60 Idaho 338, 91 P.2d 373 (1939).
d. Hall v. Taylor, 57 Idaho 662, 67 P.2d 901 (1937).
e. Washington County Irrigation District v. Talboy, 55

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 11

Idaho 382, 43 P.2d 943 (1935).
f. Codd v. McGoldrick Lumber Co., 48 Idaho 1, 279 P. 298
(1929).
g. Humbird Lumber Co. v. Public Utilities Commission, 39
Idaho 505, 228 P. 271 (1924).
After citing to the Stoehr case, the Supreme Court in Humbird
Lumber Co. v. Public Utilities Commission, 39 Idaho 505, 228 P.
271 (1924), stated that “[t]he test for determining whether the
lumber company is a public utility would seem to depend upon
whether it has held itself out as ready, able and willing to serve
the public generally, or some portion thereof." Id. at 513.
Although SPU serves various customers within a specific
subdivision, SPU has never held itself out as ready, able and
willing to serve all members of the public or even all members of
the subdivision. See Second Declaration of Doyle Beck, para. 3.
Each customer was required to request service, and service is only
provided to those customers individually approved by SPU.4 Id. at
para. 4. SPU has refused service to owners of lots within the
subdivision where the owner‟s demands exceeded system capacity.
Id. at para. 4. Nearly half of the subdivision is not served by
SPU. See First Declaration of Doyle Beck, para. 4. No evidence has
been presented that SPU has unequivocally stated that it is ready,

4 For example, a “Will Serve” letter was issued to Complainant, and is
attached as Exhibit H to the Amended Answer.

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 12

able and willing to serve all members of the public or all members
of the subdivision. SPU only serves customers on a case-by-case
basis. See Second Declaration of Doyle Beck, para. 4.
Idaho case law is clear that the mere conveyance of well
water to customers does not create a public utility without
unequivocal dedication to the public, even where well water is
conveyed to 276 customers. The record contains no evidence that
SPU has made such an unequivocal dedication to the public or any
part thereof. SPU will not consent to such a dedication being
presumed. SPU‟s conveyance to 19 customers on a case-by-case basis
clearly does not meet the requirements of intent to create a
public utility.
3. IMPACT ON THIRD PARTY BENEFICIARY AGREEMENT.
Staff Comments submitted May 12, 2022, recognized that the
Third Party Beneficiary Agreement provides SPU‟s customers
“significant control over the rates SPU charges.” See Staff
Comments, May 12, 2022, p. 4. A review of the Third Party
Beneficiary Agreement, attached as Exhibit „G‟ to SPU‟s Amended
Answer, establishes that should IPUC exercise jurisdiction over
SPU, IPUC‟s regulation would remove this significant control
exercised by SPU‟s customers. In Section 12 of the Agreement, p.
6-7, the Third Party Agreement will terminate if “the rates,
services and operation of the Company are placed by law under the
jurisdiction of a regulatory commission or other governmental

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 13

agency or body empowered to fix rates….” Given that the Third
Party Beneficiary Agreement applies to both the water and sewer
service, IPUC jurisdiction would result in customers losing their
significant control over rate setting for both water and sewer
service.
Ironically, the IPUC‟s exercise of jurisdiction may have
exactly the opposite effect from what is desired. SPU‟s customers
would never be able to petition the IPUC regarding SPU‟s rates or
charges, because under Idaho Code Section 61-612, IPUC will not
entertain any complaint regarding rates or charges unless a
minimum of 25 customers sign the complaint.5 Where SPU only has 19
customers, they would never meet the minimum statutory threshold
to pursue an IPUC complaint. By exercising jurisdiction over SPU,
IPUC is effectively removing all protection the customers now have
with regards to rates and charges set by SPU.
4. IMPROPER ORDER REQUIREMENT.
Under Order No. 35645, SPU is ordered to file an Application
for a “CPCN” to become a regulated water company within 30-days of
issuance of the Order. Certificates of Convenience and Necessity
are governed by Idaho Code Section 61-526.6 Section 61-526

5 The fact that there is a 25 person minimum to file a complaint to the IPUC
is prima facie evidence that it was never the Legislative intent for IPUC to
regulate small private water providers.
6 Section 61-527 is inapplicable because that provision relates solely to
utilities holding municipal or county rights or franchises. SPU does not
possess any water distribution rights or franchise from a county or
municipality. See Clearwater Power Co. v. Washington Water Power Co., 78

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 14

prohibits “the construction of a … system or of any extension of
such … system, without having first obtained from the commission a
certificate that the present or future public convenience and
necessity require or will require such construction….” (Emphasis
added). However, SPU has no current intention of constructing or
expanding its water system. It is clear that the IPUC treats
Certificates of Convenience and Necessity as licenses to operate a
utility7, where the Idaho Code clearly treats such Certificates as
a preconstruction building permit.
This is further underscored by IPUC Rules 111 and 112, which
identify the form and content required when making an application
for a Certificate of Convenience and Necessity. Whether a new
system is being created, or an existing system is expanding, both
Rules require applicants to produce various items related to
proposed construction or proposed expansion of the system. SPU can
find no Idaho Statute or IPUC Rule which allows the IPUC to order
that an existing system apply for a Certificate to continue its
current operation, effectively mandating consent to be regulated.
Because SPU has no intention of building or expanding its system,
IPUC‟s Order to apply for a Certificate is improper and should be
withdrawn.
Ordering SPU to apply for a certificate to build or expand

Idaho 150, 152, 299 P.2d 484 (1956).
7 See Order No. 35645 where IPUC orders SPU to apply for a “CPCN to become a
regulated water company….” Order No. 35645, p. 10.

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 15

its system, where no building or expansion is contemplated, is an
abuse of any authority IPUC may have over SPU. Idaho Code and the
IPUC Rules do not recognize Certificates of Convenience and
Necessity as a means by which an existing utility provider applies
for regulation by the IPUC. It would be an absurd reading of the
law to require any company establish that the service already
provided to its customers is both convenient and necessary. If the
company‟s service was not convenient or necessary, the customers
would have found more convenient water sources or would not have
requested service. Any attempt to now require application for a
Certificate of Convenience and Necessity, or to impose a penalty
or fine against SPU, for the construction of its system over
twenty years ago, would be barred by applicable statutes of
limitation and will be reversed on appeal.
5. ADDITIONAL EVIDENCE FOR CONSIDERATION.
Should the IPUC refuse to reconsider Order No. 35645 based
upon the above stated arguments, submitted herewith, is the Second
Declaration of Doyle Beck, providing evidentiary testimony
establishing that SPU is both organized and operated at cost and
not for profit. Mr. Beck provides this evidence to establish that
SPU is a lawfully operated nonprofit. Because the conversion is
recent, the financial statements, cost analysis, and/or tax
information identified by IPUC (see Order No. 35645, p. 7) as
potentially establishing SPU‟s non-profit operating status simply

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 16

do not exist. It is requested that this additional information be
taken into consideration during IPUC‟s review of Order No. 35645.
Dr. Phil McGraw often states that “the best predictor of
future behavior is past behavior.” This maxim has been
acknowledged by the Idaho Court of Appeals in Doe v. State, Dept.
of Health and Welfare, 123 Idaho 502, 506, 849 P.2d 963 (Ct. App.,
1993). In its concern for potential future misconduct by SPU, the
IPUC ignores the 20+ year history of SPU which contains no
evidence to indicate that SPU will treat its customers improperly.
SPU‟s own history is evidence that SPU is operating in a manner
satisfactory to its customers.
6. RULE 323.01(a)
In the event the IPUC still claims jurisdiction over SPU, it
is requested that after compliance with the Request for a
Regulatory Takings Analysis, the IPUC enter a final order with
regards to jurisdiction under Rule 323.01(a), allowing SPU to file
a Petition for Reconsideration under Rule 331 and then appeal this
matter to the Idaho Supreme Court under Rule 341. Given the
dispute between the IPUC and SPU regarding the applicability and
relevancy of Idaho Supreme Court decisions and statutory
interpretation, and the potential constitutional violations if
Stoehr is not applied, it is essential that this matter is
addressed by the Idaho Supreme Court prior to the IPUC exercising
jurisdiction over SPU. SPU will not consent to such jurisdiction

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 17

by filing a Certificate of Convenience and Necessity. Should the
IPUC refuse to issue a final order regarding jurisdiction under
Rule 323, SPU will pursue a Writ of Prohibition and/or Mandate
under Idaho Code Section 7-401, et. seq.
7. PETITION FOR STAY
Respondent further petitions for a stay of Order No. 35645,
pursuant to IPUC Rule 324, and requests a stay of the Order to the
extent it orders SPU to file an Application for a “CPCN” within
thirty (30) days of the date of the Order. Because Respondent‟s
Petition for Review addresses the IPUC‟s jurisdiction over SPU and
the authority of IPUC to require such Application, such
determinations must be decided before SPU is required to incur the
costs and attorney fees required to prepare and file an
Application for a CPCN.
CONCLUSION
The IPUC lacks jurisdiction over SPU because SPU does not
qualify as a corporation under Idaho Code Section 61-104 or a
water corporation under Idaho Code Section 61-125.
The IPUC improperly presumes facts in favor of jurisdiction,
in direct violation of Idaho Supreme Court holdings. The Supreme
Court requires an affirmative showing of statutory compliance in
order for the IPUC to exercise jurisdiction. Order No. 35645 is
based upon a negative showing of statutory compliance: “the
Commission cannot find that the Company is a mutual nonprofit,

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 18

cooperative corporation, nor a public utility organized and
operated for service at cost at this time….” See Order No. 35645,
p. 9-10 (bold emphasis added). In order to exercise jurisdiction,
IPUC must affirmatively (not presumptively or negatively) find
that SPU is not organized and operated for service at cost.
IPUC further violates Supreme Court authority by overturning
holdings without authorization. Absent an unequivocal dedication
to the public, individuals and entities providing water for
compensation are not deemed public utilities. IPUC has not
provided any evidence that such unequivocal dedication has
occurred or that Stoehr and other related cases have been
overturned by the Idaho Supreme Court. Absent the Stoehr
limitations on IPUC jurisdiction, Idaho Code Section 61-125
violates constitutional due process rights of water suppliers and
requires a regulatory takings analysis to be completed before any
further action is taken.
IPUC‟s demand for SPU to apply for regulation by submitting
an application for a “CPCN” is also not justified under Idaho
Code. SPU is neither building nor expanding a system requiring an
application for a Certificate of Convenience and Necessity.
Based upon the foregoing it is requested that the IPUC
recognize that it lacks jurisdiction over SPU and dismiss the
Complaint filed by Donald Sorrells with prejudice to end this
proceeding.

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 19

DATED this 17th day of January, 2023.

/s/ Paul L. Fuller
Paul L. Fuller
Attorney for Sunnyside Park Utilities, Inc.

PETITION FOR REVIEW OF INTERLOCUTORY ORDER AND PETITION FOR STAY - 20

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served a true and correct copy of the following
described pleading or document on the persons listed below on this 17th day of January,
2023:
Document Served: PETITION FOR REVIEW OF
INTERLOCUTORY ORDER AND PETITION
FOR STAY

Persons Served:

Paul B. Rippel Via Email
Austin O. Allen
HOPKINS RODEN CROCKETT
HANSEN & HOOPES, PLLC
428 Park Ave.
Idaho Falls, ID 83402
[e-mail]
[e-mail]

/s/ Paul L. Fuller
Paul L. Fuller
FULLER & BECK LAW OFFICES, PLLC