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Ada County Highway District v. Idaho Public Utilities Commission and Idaho Power Company

May 25, 2011


Appeal from the Idaho Public Utilities Commission. The order of the Commission is set aside.

The opinion of the court was delivered by: Eismann, Chief Justice.

2011 Opinion No. 56

This is an appeal from an order of the Public Utilities Commission revising Idaho Power Company's tariff with respect to relocating utilities within public rights-of-way. We set aside the order of the Commission.


On October 30, 2008, Idaho Power Company (Company) filed an application with the Idaho Public Utilities Commission (IPUC) seeking to modify Rule H, its tariff. Some of the proposed amendments applied to the relocation of utilities' facilities within public rights-of-way. The City of Nampa and the Association of Canyon County Highway Districts (Intervenors) were granted permission to intervene in the proceedings, and they each filed written comments objecting to Section 10 of the proposed amendments. Even though it was not an intervenor in the proceedings, the Ada County Highway District (ACHD) also filed written comments objecting to proposed Section 10.

On July 1, 2009, IPUC issued an order approving proposed Section 10. On July 22, 2009, ACHD filed a petition for reconsideration and clarification. It argued that by adopting Section 10, IPUC exceeded its authority; that Section 10 was unconstitutional; that Section 10 was an unlawful attempt to amend or abrogate the common law rule requiring a utility to relocate its facilities placed in a public right-of-way at its expense; and that the definition of "third party beneficiary" in Section 10 was too broad. On the following day, Intervenors also filed petitions for reconsideration. They contended that Section 10 exceeded IPUC's jurisdiction and that the definitions of "third party beneficiaries" and "local improvement districts" used in Section 10 needed to be clarified.

On August 19, 2009, IPUC issued an order granting the motions for reconsideration. It ordered Company to update the language of Section 10, including clarifying the definitions of "third party beneficiaries" and "local improvement districts." It further provided that once Company had done so, the parties could file additional briefs if necessary. Company filed the modifications on August 28, 2009, which included modified definitions of some of the terms used.

On September 11, 2009, Intervenors filed a joint brief in support of their petitions for rehearing. In that brief, they argued that Section 10 exceeded the jurisdiction of IPUC, was unconstitutional, and was contrary to the common law. They also argued that the revised definition of "third party beneficiaries" was still too broad.

On the same day, ACHD filed its brief. It argued that as modified, Section 10 and the revised definitions encroached upon ACHD's exclusive jurisdiction over its highways and rightsof-way; exceeded IPUC's jurisdiction; are unconstitutional; attempted to amend or abrogate the common law rule that utilities must move their facilities from public rights-of-way at their own expense; and contained an overly broad definition of "third party beneficiary."

IPUC held oral argument on the motions for reconsideration for October 13, 2009, and on November 30, 2009, it issued its final order (Order No. 30955). It granted the motions for reconsideration in part and denied them in part and added Sections 1 and 10, as revised, and Section 11 to the tariff (Rule H). ACHD then appealed.


A. Should this appeal be dismissed for lack of a case or controversy between IPUC and ACHD?

B. Does Section 10 usurp ACHD's exclusive jurisdiction over public rights-of-way?

C. Does Section 10 exceed the authority of IPUC?

D. Does Section 11 exceed the authority of IPUC?


Appeals from IPUC are heard on the commission record as certified by it. I.C. § 61-629. Review on appeal is limited to "whether the commission has regularly pursued its authority, including a determination of whether the order appealed from violates any right of the appellant under the constitution of the United States or of the state of Idaho." Id. This Court can either affirm the order of the Commission or set it aside in whole or in part. Id.

A. Should This Appeal Be Dismissed for Lack of a Case or Controversy Between IPUC and ACHD?

IPUC contends that this appeal should be dismissed because no justiciable controversy exists between it and ACHD. It reasons, "Because Section 10 and Resolution 330 are substantially similar, Section 10 by its terms is not in effect for ACHD's projects." That argument is based upon the provision in Section 10 stating that it does not apply to relocations where the public road agency has adopted legally binding guidelines with provisions that are substantially similar to Section 10 for allocating utility relocation costs between the Company and other parties. Thus, as long as ACHD keeps its Resolution 330, that resolution will control the allocation of the cost of relocating the Company's utilities to third parties. IPUC also addresses various arguments made by ACHD, pointing out why they are without merit.

A justiciable controversy must be " 'a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.' " Harris v. Cassia County, 106 Idaho 513, 516, 681 P.2d 988, 991 (1984) (quoting from Aetna Life Insurance Co. of Hartford, Connecticut v. Haworth, 300 U.S. 227, 241 (1937)). This case presents a real and substantial controversy regarding the legality of the amended tariff. Specifically, ACHD contends that it infringes upon its exclusive jurisdiction to determine whether a third party is required to reimburse a utility for all or a portion of its cost of relocating the utility's distribution facilities that are in a public right-of-way and exceeds the authority granted to IPUC by the legislature. IPUC believed that there was enough of a controversy regarding those issues that it adopted the ...

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