28415.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. 28415 CITY OF PONDERAY,
Intervenor-Appellant,
v.
IDAHO PUBLIC UTILITIES COMMISSION,
Respondent on Appeal,
and
UNION PACIFIC RAILROAD COMPANY,
Applicant-Respondent on Appeal.
)))))))))))))

In Order No. 28106 issued August 5, 1999, the Commission authorized Union Pacific Railroad to close an “old” grade crossing located in Ponderay, Idaho effective October 1, 2000. In November 1999, the City of Ponderay appealed the Commission’s decision to the Idaho Supreme Court. On April 14, 2000, the City filed a Petition to Stay requesting that the Commission stay or postpone the closure of the crossing. On April 28, 2000, the Commission issued Order No. 28368 denying the City’s request to stay the closure.
On May 19, 2000, the Co-op Country Stores and Lake RV, Inc. each filed a Petition for Reconsideration. The businesses requested that the Commission reconsider its decision in Order No. 28368 denying the City’s request for stay. The City did not seek reconsideration. On May 26, 2000, Union Pacific filed an Answer to the two Petitions. After reviewing the two Petitions and Union Pacific’s Answer, the Commission declines to reconsider its decision denying the City’s Petition to Stay as set out in greater detail below.

BACKGROUND
The procedural history in this case is generally contained in Order Nos. 28106 and 28136. In Order No. 28106 issued August 5, 1999, the Commission authorized Union Pacific to close the old railroad crossing effective October 1, 2000. In other words, the Commission postponed the closure of the crossing for approximately 14 months.
Following issuance of Order No. 28106, the Commission received 17 Petitions for Reconsideration including Petitions filed by the City of Ponderay, the Co-op, and Lake RV. On September 24, 1999, the Commission issued reconsideration Order No. 28163 setting out its findings of fact and decision in greater detail. The Commission denied the Petitions for Reconsideration and affirmed its prior Order No. 28106 authorizing the closure of the grade crossing. In particular, the Commission denied at least two requests to postpone closure until vehicular access could be improved. On November 4, 1999, the City appealed the Commission’s decision to the Idaho Supreme Court. Docket No. 25995. The City was the only party to appeal and no other parties (including the Co-op and Lake RV) intervened in the appeal.
A. The City’s Petition to Stay
On April 14, 2000, the City petitioned the Commission to stay or postpone the closure of the railroad crossing. More specifically, the City requested 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.” City Memorandum at 6. In its supporting Memorandum, the City observed that Idaho Appellate Rule 13(g) requires that before a party may seek a stay from the Supreme Court, that party “must first make application to the [Public Utilities Commission]. . . .” Appellate Rule 13(g) further provides that if the Commission “denies an application for a 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.
B. Denial of the Stay
The Commission denied the City’s request for stay for two reasons. First, the Commission found that the City’s Petition did not demonstrate a “distinct and palpable injury” to the City. Thus, the City lacked the requisite “standing” to obtain a stay. More specifically, the Commission held that the alleged financial injury and alleged lack of direct vehicular access to businesses in the commercial triangle “is not an injury to the City.” Order No. 28368 at 4.
Second, even if the City had standing, the Commission found that the City will not experience “great or irreparable harm” if the crossing is closed. Idaho Code § 61-636 requires that a party requesting a stay of the Commission’s Orders show that it would suffer great or irreparable damage without a stay. The Commission found that the four remaining access points to the affected businesses “provided reasonable routes for motorists to enter and exit the commercial triangle.” Order No. 28368 at 6. Consequently, there is no irreparable harm and the City’s Petition to stay was denied.
THE PETITIONS FOR RECONSIDERATION
In their Petitions, Lake RV and the Co-op make several allegations. However, the two Petitions are identical except for the discussion of financial impact applicable to each business. Consequently, both Petitions shall be addressed together except for the alleged economic impact to each business.
The Petitioners allege that closure will have an adverse economic impact on their businesses. In particular, Lake RV alleges that its sales would decline by half or approximately $450,000. The Company asserts that ten people will lose their jobs as a result of the closure representing a salary base of approximately $106,000. Lake RV Petition at 2. Even if sales were just reduced by a third (or $170,000), the Company maintains that it would not earn a profit. Petition at 3.
Turning to the Co-op’s Petition, it claims that closure of the old crossing will reduce its sales by more than $2 million per year or roughly 30.8%. The Company also insists that 35 employees will lose their job. Co-op Petition at 2. The Company further asserts that “if the Co-Op is denied about 25% of its coming or going traffic that uses the ‘old’ crossing, then one could easily conclude that it would impact sales more than $269,000 or losses of 4.1% of sales.” Id. at 3.
The Petitioners next claim that the Commission’s decision did not consider future traffic plans and alternate traffic routes. Petitions at 3 ¶4. Highway 95 improvement projects “will need Fontaine and the old crossing as a frontage road during the construction of the U.S. Hwy 95 widening project (scheduled for 2003) or until an alternative road is constructed.” Id.
Finally, the Petitioners note that a “business committee” has been formed to address the needs of traffic and infrastructure for the Ponderay business community. The committee plans to obtain grant money from the Idaho Department of Commerce and other sources to build a connector road between U.S. 95 and State Highway 200. Petitions at 3 (6. In conclusion, the businesses requested that the crossing “remain open until an alternative road access can be constructed—the ‘Connector Road’, if the City of Ponderay and the business committee can show progress to that end.” Petitions at 4.
UNION PACIFIC’S ANSWER
Union Pacific urges the Commission to deny both petitions. The Railroad alleges that the economic assertion made by the two businesses are “speculative and unsupportable.” Union Pacific Answer at 2. In addition, the Railroad generally insists that even if the economic losses to the two businesses were not speculative, such losses do not constitute great and irreparable harm as required by Idaho Code § 61-636. “A death at the old crossing is irreparable. . . . As the Idaho Supreme Court stated in Idaho Power & Light Company v. Idaho PUC, 107 Idaho 47, [51] 685 P.2d 276 [280] (1984): ‘irreparable damage is that injury which cannot be adequately compensated for monetary.’” Id. at 7.
Union Pacific also argues that if a stay is granted, then a suspending bond must be posted. Idaho Code § 61-637 provides a judicially stayed order “shall not become effective until a suspending bond shall first have been executed and filed with, and approved by the commission or [the Court] . . . sufficient in amount and security to ensure the prompt payment, by the party petitioning for the review, of all damages caused by the delay in the enforcement of the order or decision of the commission. . . .” Answer at 8-9. The Railroad maintains that if a derailment or accident at the old crossing were to occur “the City should be required to assume liability associated with keeping the old crossing open.” Id. at 9. The Railroad recommends that the City post a bond of a “minimum of $6 million or obtain insurance in like amount naming Union Pacific as an additional insured to cover any such damages.” That is the amount of insurance required for public railroad projects in Idaho. Id.
DISCUSSION AND FINDINGS
We begin our review of the two petitions by recognizing that they renew previous arguments that the Commission postpone closure until access improvements can be identified and constructed. In our administrative proceeding the City and the Bonner County Advisory Transportation Team requested that the Commission not close the old crossing until the planned improvements to U.S. 95 are completed or until new access points/improvements can be constructed (e.g., improve the alley to public street standards). Order No. 28106 at 8 ¶4, 15 ¶3, 18. These arguments were considered in the Commission’s proceeding and rejected. The Commission postponed closure of the old crossing for 14 months to mitigate the financial impact on businesses and to allow interested persons “to evaluate and seek other access improvements....” Order No. 28163 at 6. However, in the final analysis the Commission concluded that the public safety necessitates closure of the crossing.
The Public Utilities Law provides for the orderly administrative review of our decisions by first seeking reconsideration. The petitions here request a stay until an alternative new road is constructed at an unspecified time in the future. However, in this instance, the two petitions seek reconsideration of postponing the closure—an issue that was already considered and reconsidered by the Commission. Idaho Code § 61-625 prevents relitigation of issues already litigated, decided, and reconsidered.
Despite the dire allegations of Lake RV and the Co-op, the public safety compels closure of this crossing. The Commission adheres to its findings in Order Nos. 28106 and 28163 regarding the financial impacts to businesses. A stay of the closure is not warranted.
We must also address the unique context in which these two petitions are before the Commission. As noted in the “Background” section of this Order, the Co-op and Lake RV are not parties to the appeal in this case. When the City petitioned the Commission to stay the closure of the grade crossing, it specifically acknowledged that it must do so before seeking a stay from the Supreme Court. Once the Commission denied the stay request in Order No. 28368, the City may seek a stay from the Supreme Court. I.A.R. 13(g).
Now businesses not parties to the appeal seek a stay of a decision on appeal. However, the City did not petition us to reconsider our denial of a stay pending appeal. Although Order No. 28368 stated that persons “interested in this Order may petition for reconsideration” such an invitation given the unique setting of this case was improvidently offered. Persons not parties to an appeal should not be permitted to seek reconsideration of a stay on appeal when the matter is before the Supreme Court. Consequently, we deny the petitions to reconsider the denial of a stay for a matter on appeal.

O R D E R
IT IS HEREBY ORDERED that the Petitions for Stay filed by Co-op Country Stores and Lake RV, Inc. are denied for the reasons set out above.
THIS IS A FINAL ORDER DENYING RECONSIDERATION.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho, this
day of June 2000.

DENNIS S. HANSEN, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

PAUL KJELLANDER, COMMISSIONER

ATTEST:

Myrna J. Walters
Commission Secretary

Vld/O:UPR-R-99-1_dh7
The Petitioners also argued that a stay should be granted to provide an alternative route for emergency vehicles. They point to an instance when State Highway 200 was blocked and the old crossing was used as an alternate route. However, the “new” crossing offers an alternative route when Highway 200 is blocked by a crossing train and is about a quarter mile from the old crossing. App. R. at 197.

ORDER NO. 28415 1

Office of the Secretary
Service Date
June 16, 2000