412 F.2d 115 (10th Cir. 1969), 9252, Tri-State Generation & Transmission Ass'n v. Public Service Commission of Wyoming

Docket Nº:9252.
Citation:412 F.2d 115
Party Name:TRI-STATE GENERATION & TRANSMISSION ASSOCIATION, Inc., Appellant, v. The PUBLIC SERVICE COMMISSION OF WYOMING, and Richard J. Luman, Walter W. Hudson, Francis Hillard, Zan Lewis and Rudolph Anselmi, as members thereof, and Alex J. Eliopulos, as its Secretary, Appellees, and Cheyenne Light, Fuel & Power Company, Black Hills Power & Light Company, Li
Case Date:April 28, 1969
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 115

412 F.2d 115 (10th Cir. 1969)

TRI-STATE GENERATION & TRANSMISSION ASSOCIATION, Inc., Appellant,

v.

The PUBLIC SERVICE COMMISSION OF WYOMING, and Richard J. Luman, Walter W. Hudson, Francis Hillard, Zan Lewis and Rudolph Anselmi, as members thereof, and Alex J. Eliopulos, as its Secretary, Appellees, and Cheyenne Light, Fuel & Power Company, Black Hills Power & Light Company, Lincoln Service Corporation, Pacific Power & Light Company, and Utah Power & Light Company, Intervenors.

No. 9252.

United States Court of Appeals, Tenth Circuit.

April 28, 1969

Rehearing Denied June 6, 1969.

Page 116

Raphael J. Moses, Boulder, Colo. (John J. Conway, Denver, Colo., and George P. Sawyer, Torrington, Wyo., were with him on the brief), for appellant.

Don M. Empfield (Dean W. Borthwick, Atty. Gen., Lawrence E. Johnson, Chief Sp. Asst. Atty. Gen., and William D. Norman, Sp. Asst. Atty. Gen., Cheyenne, Wyo., were on the brief), for appellee Public Service Commission of Wyoming.

Houston G. Williams, Casper, Wyo., Paul B. Godfrey, Cheyenne, Wyo., and Bryce E. Roe, Salt Lake City, Utah (Edgar J. Herschler, Kemmerer, Wyo., was with them on the brief), for intervenors.

Before MURRAH, Chief Judge, and LEWIS, BREITENSTEIN, HILL, SETH, HICKEY and HOLLOWAY, Circuit Judges.

PER CURIAM.

In this Wyoming federal question suit, Tri-State Generation and Transmission Association, Inc., sought unsuccessfully to enjoin the Wyoming Public Service Commission from interfering with increased contract charges for electrical power which it purchases from the Bureau of Reclamation and transmits over Bureau lines to Wyoming, where it is sold to its REA member cooperatives for retail distribution. The district court denied the application for the convention of a three-judge court on grounds that the suit was not an attack upon the constitutionality of a state statute, but rather that the statutes were being unconstitutionally applied to Tri-State, Bartlett & Co. Grain v. State Corp. Commission of Kansas, 223 F.Supp. 975, aff'd 338 F.2d 495, cert. denied 380 U.S. 964, 85 S.Ct. 1109, 14 L.Ed.2d 154, and on the further grounds that the Commission had not exercised any jurisdiction over Tri-State.

Upon trial of the injunction issue, the court finally denied relief on somewhat the same grounds as for the rejection of three-judge jurisdiction; and upon the further ground that, in any event, the laws of Wyoming provided a plain, speedy and efficient administrative and judicial remedy for the adjudication of the matter in controversy. The court also found that Tri-State was not engaged in interstate commerce.

The operative facts are not materially in dispute. Tri-State is a nonprofit cooperative corporation with twenty-eight REA cooperative members in Colorado, Wyoming and Nebraska. It is governed by a board selected or elected from its members. Twelve of these members are located in Wyoming and are admittedly subject to the jurisdiction of the Wyoming Commission. Tri-State owns no electrical generating facilities and performs no physical functions. Its function is to purchase power wholesale from the Bureau of Reclamation, transport it over Bureau lines to Colorado, Wyoming and Nebraska for sale to its co-operative members for retail sale. The Bureau bills Tri-State for the wholesale price, and Tri-State in turn bills the members and pays the Bureau. Title to the power from the Bureau to Tri-State passes to members at the point of delivery in Wyoming, where the members' facilities are connected with the Bureau's transmission lines. Title passes immediately from Tri-State to the members for distribution to their customers. The members purchase all of their power needs from Tri-State by contract and Tri-State pays the Bureau for the use of the Bureau's facilities in Wyoming. There is no contractual relationship between the member cooperatives and the Bureau.

In order to firm up its power pool, Tri-State secured an REA loan to build transmission lines in Nebraska and Colorado. The increased price was assessed against the members to amortize the REA loan.

Page 117

When the new contracts and increased contract schedules were tendered to the Wyoming Commission for filing, the Commission declined to accept them and notified the members that they would have no effect until the Commission had evaluated and passed upon their propriety. A short time later the Commission enlarged upon the reasons for its action in a directive to all of the Wyoming members, in which it characterized Tri-State as the wholesale power contracting agent for the Wyoming members, and noted that no formal application had been made concerning the proffered contract and no information or data had been provided on which the Commission could make a ruling. It was careful to note that the directive was not intended in any way to foreclose further consideration of the matter but indicated quite clearly that it would look with disfavor upon the increase, observing that if one entity should be permitted to...

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