28368.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF THE PETITION FROM UNION PACIFIC RAILROAD COMPANY TO CLOSE A GRADE CROSSING IN PONDERAY LOCATED AT MILEPOST 76.12. ))))))

SUPREME COURT
DOCKET NO. 25995

IPUC CASE NO. UPR-R-99-1

IPUC ORDER NO. 28368 CITY OF PONDERAY,
Intervenor-Appellant,
v.
IDAHO PUBLIC UTILITIES COMMISSION,
Respondent on Appeal,
and
UNION PACIFIC RAILROAD COMPANY,
Applicant-Respondent on Appeal.
)))))))))))))

On April 14, 2000, the City of Ponderay filed a Petition to Stay the closure of a railroad grade crossing in Ponderay, Idaho. In the Commission’s Order Nos. 28106 (issued August 5, 1999) and 28163 (issued September 24, 1999), the Commission authorized Union Pacific Railroad to close the “old” railroad crossing effective October 1, 2000. The City has appealed the Commission’s two orders to the Idaho Supreme Court in Docket No. 25995. In the City’s Petition for Stay, it requests that the Commission stay the closure of the crossing “at least pending the determination of the appeal by the Idaho Supreme Court but preferably until alternative access reasonably can be secured.” Memorandum at 6 (emphasis omitted). As set out in greater detail below, the Commission denies the City’s request.

STAY STANDARDS
The Commission’s Procedural Rule 324 provides that any person may petition the Commission to stay any order. IDAPA 31.01.01.324. This rule also recites that “orders may be stayed by the judiciary according to statute.” Id. Idaho Code § 61-635 provides that filing a Notice of Appeal from orders of the Idaho Public Utilities Commission “shall not of itself stay or suspend the operation of the order[s] of the commission, but during the pendency of such appeal, the Supreme Court may stay or suspend, in whole or in part, the operation of the commission’s order[s].”
Pursuant to Appellate Rule 13(g), the Supreme Court may stay orders of the Commission but only after the requesting party first seeks a stay from the Commission. I.A.R. 13(g). If the Commission “denies an application for stay, or fails to act upon the application within fourteen (14) days after the filing of the application, any party may apply to the Supreme Court for a stay.” Id.
In Rosebud Enterprises v. Idaho PUC, the Court stated that “[i]f a party seeks to suspend the operation of an IPUC order, that party must comply with the statutory requirements set forth by the legislature.” 128 Idaho 633, 635, 917 P.2d 790, 792 (1996). The Public Utilities Law contains the statutory scheme for obtaining judicial stays of the Commission’s orders. Idaho Code § 61-636 provides that the Court shall issue no order staying or suspending a Commission order “otherwise than upon a three (3) days’ notice and after hearing. . . .” If the Court issues a stay, the order suspending this Commission’s order “shall contain a specific finding based upon the evidence submitted to the court and identified by reference thereto, that great or irreparable damage would otherwise result to the petitioner and specifying the nature of the damage.” Idaho Code § 61-636 (emphasis added). Where an order is stayed, the stay shall not become effective until a suspending bond has been executed and approved by the Commission or the Courts. Idaho Code § 61-637; Rosebud, 128 Idaho at 632-33, 917 P.2d at 792-93.

“Irreparable damage is that injury which cannot be adequately compensated for monetarily.” Utah Power & Light v. Idaho PUC, 107 Idaho 47, 51, 685 P.2d 276, 280 (1984) citing Black’s Law Dictionary. The legislature has determined that before an order of the Commission may be suspended on appeal, the party seeking such a stay must show that it would suffer great or irreparable damage if the Commission’s order was not stayed pending judicial determination of the appeal. Thus, the Commission and the Supreme Court will employ the “great or irreparable damage” standard when review requests for a stay of Commission orders.
THE PETITION FOR STAY
In support of its Petition, the City submitted a supporting memorandum and the affidavit of Jessie DeMers, apparently the new Mayor of Ponderay. The City maintains that the appellate record, its Brief on Appeal, and the mayor’s affidavit “demonstrate that great and irreparable harm will result if IPUC Order Nos. 28106 and 28163 are not stayed pending the appeal.” Memorandum at 2. The City generally offers three grounds to support its position that closure of the old crossing will result in great and irreparable harm. First, the City asserts that closure of the old crossing will seriously impact the businesses located in the commercial triangle. Second, the City insists that the four remaining access points to the commercial triangle (following closure of the old crossing) are inferior because they provide no direct access to businesses located in the commercial triangle. Third, the City argues that future changes to U.S. 95 currently under consideration by the Idaho Transportation Department (ITD) will diminish access to the commercial triangle. After reviewing the City’s Petition and supporting documents, as well as the appellate record before us, we deny the Petition for Stay for the reasons set out below.
A. The City does not have Standing to Obtain a Stay
First, for purposes of the stay, we find that the City lacks standing to bring this Petition. Although the Commission concedes that the City has standing to challenge the Commission’s findings contained in Order Nos. 28106 and 28163, the City has failed to demonstrate that the City will suffer direct injury of great and irreparable harm if a stay is not granted.
As the Supreme Court explained in Miles v. Idaho Power Company,
the essence of the standing inquiry is whether the party seeking to invoke the Court’s jurisdiction has “alleged such a personal stake in the outcome of the controversy as to assure the concrete adversariness which sharpens the presentation upon which the Court also depends for illumination of difficult constitutional questions.” As refined by subsequent reformation, this requirement “personal stake” has come to be understood to require not only a “distinct palpable injury” to the plaintiff, but also a “fairly traceable” casual connection between the claimed injury and the challenged conduct.

116 Idaho 635, 641, 778 P.2d at 757, 763 (1989) quoting Duke Power Company v. Carolina Env. Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 2630 (1978) (emphasis added & citations omitted). For purposes of our inquiry here, the doctrine of standing focuses on: 1) the party seeking relief and not on the issues the party wishes to have adjudicated; and 2) the party must demonstrate a great or irreparable injury that the stay will prevent. Boundary Backpackers v. Boundary County, 128 Idaho 371, 375, 913 P.2d 1141, 1145 (1986) citing Miles, 116 Idaho at 641, 778 P.2d at 763.
“The doctrine of standing focuses on the party seeking relief and not on the issues the party wishes to have adjudicated.” Miles, 116 Idaho at 641, 778 P.2d at 763. In Miles, the Court noted that “the injury in fact” criteria for standing requires a specialized and peculiar injury. Id. As the Court recently noted in Rural Kootenai Organization v. Board of Comm’ners, Kootenai County, the “distinct palpable injury” must be to the plaintiff and the plaintiff must show that harm or peril personal to the plaintiff is caused by the agency’s actions. Slip op. at 13 (December 9, 1999) (“Simply because RKO’s members may own property near the proposed subdivision, the location of their property alone does not confer standing.”).
Applying these concepts of standing to the City, the Commission finds that the City has not demonstrated a “distinct and palpable injury” to itself and that the injury, if it exists, is not great or irreparable. First, the alleged financial injury to businesses located within the commercial triangle is not an injury to the City. As the Court in Miles stated, standing focuses on the party seeking relief. 116 Idaho at 641, 778 P.2d at 763. Here the party seeking a stay is the City, not the businesses in the commercial triangle. Although these businesses were “parties” on reconsideration in the Commission’s underlying proceeding, these businesses have chosen not to participate in the appeal. Only the City filed a notice of appeal. R. at 191-93. The City’s attempt to bootstrap itself with the harm alleged to be incurred by business owners must fail because this harm, even if true, is not harm or peril personal to the City. Rural Kootenai, Slip op. at 13. The alleged harm to businesses cannot confer standing to the City to seek a stay of the Commission’s orders to close a hazardous grade crossing. Id.
Second, the City’s argument that the four remaining access points to the commercial triangle are inferior because they provide no direct access to businesses located in the commercial triangle also fails for two reasons. Again, this alleged injury of no direct access to the business is not a “distinct palpable injury” to the City. Miles, 116 Idaho at 641, 778 P.2d at 763; Rural Kootenai, Slip op. at 13. Second, there is no great or irreparable injury to the City because there is, in fact, direct access to the businesses in the commercial triangle. The City continues to assert that the northern boundary of the commercial triangle is Bonner Mall Way. The Commission rejected this argument in its orders and found that there is substantial evidence to support its decision. R. at 182-83; 24; 35; 47-48; 81. See UP Exh. 10 (IPUC Brief App. 2). This issue is adequately addressed in the Commission’s brief on appeal at pp. 32-34 and is incorporated herein.
Finally, future and unspecified changes to U.S. 95 that may diminish access to the commercial triangle cannot be considered “great or irreparable injuries” to the City. In its orders, the Commission recognized that these proposed changes were speculative and accorded this evidence little weight. R. at 183. The changes are speculative at best. In its Memorandum and in the affidavit of the Mayor, the City acknowledges that the ITD plans are not final. Memorandum at 4 (“[t]he plan of the moment”); Affidavit at 2, ¶ 9 (ITD “still has not finalized plan”). The speculative nature of the U.S. 95 improvements is too uncertain to constitute competent evidence of an injury, much less a great or irreparable injury to the City. See Walker v. American Cyanamid, 130 Idaho 824, 832, 948 P.2d 1123,1131 (1997); Bromley v. Garey, 132 Idaho 807, 811, 979 P.2d 1165, 1169 (1999).
In summary, the City has no standing to seek a stay of the Commission’s orders authorizing Union Pacific to close the old and hazardous grade crossing because the injuries are not distinct palpable injuries to the City. The alleged injuries to businesses and speculative future injuries are not great or irreparable and cannot confer standing upon the City.
B. There is no Great or Irreparable Injury
Even if the City has standing to request a stay of the Commission’s orders, there is no great or irreparable harm to the City if the old crossing is closed. Consequently, the City cannot meet this standard in its Petition for Stay. Idaho Code § 61-636.
As previously set out, the City generally asserts that closure of the old crossing and the remaining inadequate access points to the commercial triangle will harm local businesses. However, the Commission found that the four remaining access points provide reasonable routes for motorists to enter and exit the commercial triangle. R. at 182-86, IPUC Brief at 31-36, UP Exh. 10 (IPUC Brief App. 2). The availability of direct vehicular access forecloses a finding of great or irreparable injury to the City.
In support of its position, the City cites remarks contained in the Petition for Reconsideration filed by the Bonner County Advisory Transportation Team (BCATT). In its Petition for Reconsideration, the BCATT urged the Commission to “be very careful in closing this crossing in that no alternative access to businesses on Fontaine Drive has been identified.” R. at 112, Memorandum at 3. However, this sentence in isolation stands in stark contrast to the current access points. Namely, Tibbetts Road and the intersection of U.S. 95 and Bonner Mall Way leading to Fontaine Drive are available. See UP Exh. 10 (IPUC Brief App. 2). Moreover, in its initial comments filed with the Commission, BCATT stated that “public safety remains our paramount concern.” R. at 45.
The Mayor also asserts in her affidavit that if the old crossing is closed that “most, if not all, of the businesses in the commercial triangle will be severely harmed through loss of business revenue.” Id. at 3, ¶ 11. However, this statement is contrary to the substantial evidence contained in the Commission’s record. First, “most” of the businesses within the commercial triangle are located in the Bonner Mall itself or are located adjacent to the Mall’s frontage road, Bonner Mall Way. In other words, most of the businesses in the commercial triangle are directly adjacent to (the north and south) of Bonner Mall Way. Bonner Mall Way is accessible from the new crossing at State Highway 200 on the east side or directly accessible from U.S. 95 on the west side of the commercial triangle. See UP Exh. 10 (IPUC Brief App. 2).
In addition, those businesses located in the southern part of the commercial triangle (such as Lake R.V. and the Co-op) are directly served by Tibbetts Road and accessible from Fontaine Drive. For example, the Co-op (located south of Tibbetts Road and between Fontaine Drive and U.S. 95) has direct access from Tibbetts Road in at least two locations. See UP Exh. 10 (IPUC Brief App. 2). In addition, the main entrance to Lake R.V. is located opposite the intersection of Fontaine Drive and Tibbetts Road. Id. The “cluster of stores” on the west side of Fontaine Drive (between Tibbetts Road and Bonner Mall Way) also have access from these two access points on U.S. 95. Consequently, most of the businesses are directly accessible from Tibbetts Road, the new crossing, and Bonner Mall Way at U.S. 95. See UP Exhibit 10 (IPUC Brief App. 2); Staff Exhibit 11 (R. at 43).
The Mayor next asserts that the old crossing is an “alternative emergency route” when the new crossing is blocked by rail traffic. Affidavit at 3-4, ¶ 13. The Commission addressed this issue in its Order No. 28163 on reconsideration. The Commission found that it is not “reasonable to leave open a hazardous crossing for those few occasions (although important) when emergency vehicles use the [old] crossing.” Order No. 28106 at 17 (R. at 180). The Commission also observed that when the old crossing is closed, Union Pacific will be able to perform more yard operations at the southern end of its dual track (near the old crossing) and avoid blocking the new crossing. “We also note that Idaho Code § 49-1425 requires that trains not block the vehicular use of any highway for a period of time in excess of 15 consecutive minutes.” Id. Thus, the likelihood of the new crossing being unusable for emergency vehicles is small, and does not constitute great or irreparable injury to the City.
The Commission also offered one suggestion to address the issue of emergency responses. In our Order No. 28163, the Commission encouraged the City, the fire district and the Railroad to
explore the possibility of receiving telemetry information at the fire and police stations that would indicate when the automated safety devices are activated at the new crossing. Presumably, this would indicate times when the new crossing is blocked. This would alert responding emergency vehicles that the new crossing is blocked and they can proceed to use one of the alternative routes to gain access to the commercial triangle.

Order No. 28163 at 18 (R. at 181). This suggestion would be especially helpful for emergency responses from the fire station that is located on State Highway 200 half a mile north of the new crossing.
The Mayor states that the City “has investigated other options for improving circulation in the commercial triangle served by the subject railroad crossing. However, the City does not have the funds nor are funds available from any other source, which would permit any improved access prior to October 1, 2000, or in the foreseeable future.” Affidavit at 3, ¶ 10. The Mayor further states that the City “is doing everything in its power to improve access to minimize the harm that will certainly follow closure of the subject crossing.” Id. at 4, ¶ 14. However, the City does not indicate what other options it investigated or what actions, if any, it is contemplating to improve access. R. at 81-82. As the Commission pointed out in its orders, the City may declare the northern portion of Fontaine Drive to be a public road because the City has maintained it for more than five years. R. at 82 n.5; 184 n. 9; Idaho Code § 40-202(3); Stafford v. Klosterman, Slip op. at 4 (April 20, 2000).
Conspicuously absent in the City’s Petition for Stay is any mention of the public safety. In Order Nos. 26103 and 26163, the Commission specifically found that the old crossing should be closed in the interest of and as reasonably necessary for the public safety. R. at 79-81; 172-81. In discussing the great and irreparable harm to area businesses, the City does not express any concern for the safety of motorists utilizing the old crossing. As the Commission noted in its Order on Reconsideration, it found that public safety alone necessitates the closure of this crossing. R. at 181. As set out in the Commission’s Brief on appeal, there is substantial and competent evidence to support the Commission’s decision that closure of the old crossing is reasonably necessary for the public safety. IPUC Brief at 23-31. Granting a stay of our Orders to close the crossing may unintentionally result in irreparable harm if an accident were to occur at the old crossing. This risk was balanced with the inconvenience to the motoring public when the Commission postponed closure to October 1, 2000. A safer course of action would have been for the City to ask for expedited review of the appeal. See Mt. View Rural Tele. v. Interstate Utilities Company, 55 Idaho 86, 38 P.2d 40 (1934).
Finally, we address the Mayor’s concern that closure of the crossing before judicial review has been completed may lead to a waste of time and resources if the Commission’s decision is set aside. When Union Pacific closes the old crossing, it should do so in a manner that does not incommode the public’s use of the remaining roadway. Idaho Code § 62-305. Likewise, we encourage the City to appropriately notify travelers that the crossing is going to be closed. To provide the best possible notice to motorists, the City should consider posting appropriate warning traffic signs advising motorists that the crossing will be closed effective October 1, 2000, thereby reducing inconvenience to motorists.
O R D E R
IT IS HEREBY ORDERED that the City of Ponderay’s Petition for Stay of the Commission’s Order Nos. 28106 and 28163 authorizing the closure of the old crossing effective October 1, 2000 is denied.
IT IS FURTHER ORDERED that when Union Pacific permanently closes the old crossing, it should ensure that appropriate barricades are installed in such a fashion as to not incommode the public and minimize intrusion on the public roadway. We also encourage the City to consider posting appropriate “dead end” or other warning signs at appropriate locations approaching the crossing.
THIS IS A FINAL ORDER. Any person interested in this Order may petition for reconsideration within twenty-one (21) days of the service date of this Order. Within seven (7) days after any person has petitioned for reconsideration, any other person may cross-petition for reconsideration. See Idaho Code § 61-626.

DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho, this
day of April 2000.

DENNIS S. HANSEN, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

PAUL KJELLANDER, COMMISSIONER

ATTEST:

Barbara Barrows
Assistant Commission Secretary

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The Mayor of Ponderay’s supporting affidavit requests a stay “pending the determination of this Appeal” while the Memorandum asked for a much longer time. Cf. Affidavit p. 4, ¶ 15 with Memorandum at 6.

In the Commission’s administrative proceeding, the mayor was James E. Hunt. R. at 25.

Idaho Code § 61-626 provides that “any person” may petition the Commission to reconsider an order but only a party to the PUC proceeding may appeal. Cf. Idaho Code § 61-626 with Idaho Code § 61-627; Malone v. VanEtten, 67 Idaho 294, 178 P.2d 382 (1947).
In addition, three businesses opposing the closure of the old crossing at the public hearing are not located in the commercial triangle. Tr. p. 29, LL.6-10; p. 32, LL. 4-11; p. 89, LL. 17-21.

We have considered all the issues raised by the City and have addressed those issues material to the resolution of the Petition for Stay. Browning v. Ringel, ___ Idaho ___, ___, 995 P.2d 351, 362 (2000).

ORDER NO. 28368 5