Heber Light & Power Co. v. Utah Pub. Serv. Comm'n

• Decision Date: 30 April 2010
• Docket Number: No. 20090053,20090385.,20090053
• Citation: 2010 UT 27,231 P.3d 1203
• Court: Utah Supreme Court
• Parties: HEBER LIGHT & POWER COMPANY, Petitioner,v.UTAH PUBLIC SERVICE COMMISSION and Rocky Mountain Power Company, Respondents.

231 P.3d 1203

2010 UT 27

HEBER LIGHT & POWER COMPANY, Petitioner,v.UTAH PUBLIC SERVICE COMMISSION and Rocky Mountain Power Company, Respondents.

Nos. 20090053, 20090385.

Supreme Court of Utah.

April 30, 2010.

COPYRIGHT MATERIAL OMITTED

Joseph T. Dunbeck, Jr., Joseph A. Skinner, Heber City, Gary A. Dodge, Salt Lake City, for petitioner.

Sander J. Mooy, Salt Lake City, for respondent Utah Public Service Commission.

Mark C. Moench, R. Jeff Richards, Gregory B. Monson, Scott S. Newman, Salt Lake City, for respondent Rocky Mountain Power.

PARRISH, Justice:

INTRODUCTION

¶ 1 Rocky Mountain Power (“Rocky Mountain”) initiated this action by filing a complaint with the Public Service Commission (“Commission”). Rocky Mountain alleged that Heber Light & Power (“Heber Light”) was providing electrical service in the Heber Valley in violation of the Certificate of Convenience and Necessity that the Commission issued to Rocky Mountain, which granted Rocky Mountain the exclusive right to provide electricity in the area. In an effort to resolve the dispute, the parties requested several stays from the Commission, but were unable to come to a resolution. Heber Light then filed a motion to dismiss claiming that the Commission lacked subject matter jurisdiction to hear the claim because Heber Light was not a public utility. The Commission denied the motion to dismiss and entered a scheduling order indicating that it had the authority to determine the extent to which Heber Light could continue to provide power to customers outside its municipal boundaries and the extent of Commission jurisdiction. Heber Light filed an Application for Agency Review of the Order, which was rejected.

¶ 2 Heber Light then filed a petition for review in this court or, in the alternative, a petition for extraordinary relief. We deny the petition for review because the Commission's order is not final agency action. But we grant the petition for extraordinary relief and reverse the Commission's order.

BACKGROUND

¶ 3 Heber Light is an energy services interlocal entity comprised of several municipalities organized under the Utah Interlocal Cooperation Act. Utah Code Ann. § 11-13-101 to -314 (2007). The municipalities, which include Heber City, Midway City and Charleston Town, have been in the business of providing electricity in the Heber Valley for nearly a hundred years. Entities organized under the Interlocal Cooperation Act are considered governmental entities and therefore are not generally subject to Commission jurisdiction. See Utah Const. art. VI, § 28 (“The Legislature shall not delegate to any special commission ... any power to make, supervise or interfere with any municipal improvement, money, property or effects ... or to perform any municipal functions.”); Utah Code Ann. § 11-13-203(1) (2007) (“An interlocal entity is ... (c) a political subdivision of the state”). There are, however, statutory restrictions on the power of these entities. Under Utah law, municipalities can sell only surplus electricity to customers outside of their municipal boundaries. See Utah Code Ann. § 10-8-14(1)(d) (2007). Heber Light admitted in its answer to Rocky Mountain's complaint that it regularly provides power to customers outside of its municipal boundaries.

¶ 4 Rocky Mountain is a public utility company that is subject to the jurisdiction and control of the Commission. The Commission granted Rocky Mountain a Certificate of Public Convenience and Necessity for the Heber Valley area, which gives Rocky Mountain the exclusive right to provide electricity to customers who are part of unincorporated Wasatch County. This creates an overlap between those customers serviced by Heber Light outside its municipal boundaries and those within Rocky Mountain's certificated area. Rocky Mountain argues that Heber Light is subject to Commission jurisdiction when it acts beyond its municipal authority and interferes with Rocky Mountain's exclusive ability to provide electrical service in unincorporated Wasatch County.

JURISDICTION

¶ 5 The Utah Supreme Court has appellate jurisdiction only over final agency action. See Utah Code Ann. § 78A-3-102(3)(e) (2008). The court may also, in its discretion, grant extraordinary relief when a party is without a plain, speedy, and adequate remedy in any other forum. See id. § 78A-3-102(2); Utah R. of Civ. P. 65B(a). In this case, the Commission's order does not qualify as a final agency action and we therefore lack jurisdiction to hear the appeal. But we exercise our discretion to grant Heber Light an extraordinary writ to determine whether the Commission can continue to adjudicate Rocky Mountain's complaint against Heber Light.

STANDARD OF REVIEW

¶ 6 The question of Commission jurisdiction turns on statutory interpretation and therefore presents a question of law that we review for correctness. See ExxonMobil Corp. v. Utah State Tax Comm'n, 2003 UT 53, ¶ 10, 86 P.3d 706 (granting no deference for agency interpretation of oil and gas valuation methods); see also Indus. Commc'ns, Inc. v. Utah State Tax Comm'n, 2000 UT 78, ¶ 11, 12 P.3d 87 (applying a correction of error standard to the Tax Commission's interpretation of Utah Code Ann. § 59-12-103 and giving no deference to the agency). As such, we accord no deference to the Commission's interpretation of the statute.

ANALYSIS

I. THE COMMISSION ORDER DENYING HEBER LIGHT'S MOTION TO DISMISS IS NOT FINAL AGENCY ACTION

¶ 7 The Utah Supreme Court has jurisdiction over “final orders and decrees in formal adjudicative proceedings originating with ... the Public Service Commission.” Utah Code Ann. § 78A-3-102(3)(e)(i) (2008). We have articulated a three-part test to determine whether an agency decision qualifies as final agency action for purposes of appellate jurisdiction:

(1) Has administrative decisionmaking reached a stage where judicial review will not disrupt the orderly process of adjudication?;

(2) Have rights or obligations been determined or will legal consequences flow from the agency action?; and

(3) Is the agency action, in whole or in part, not preliminary, preparatory, procedural, or intermediate with regard to subsequent agency action?

Union Pac. R.R. Co. v. Utah State Tax Comm'n, 2000 UT 40, ¶ 16, 999 P.2d 17. All three questions must be answered in the affirmative for an order to qualify as final agency action. Id. The Commission's order does not qualify.

A. The Orderly Process of Adjudication

¶ 8 The Commission's order did not constitute an end to the process of adjudication. Rather, it was simply a denial of Heber Light's motion to dismiss. In Ameritemps, Inc. v. Utah Labor Commission, the Utah Court of Appeals held that the agency's order was final because “the [Board] reached the end of its decision making process on the issue of permanent total disability.” 2005 UT App 491, ¶ 20, 128 P.3d 31 aff'd, 2007 UT 8, 152 P.3d 298 (internal quotation marks omitted)(alteration in original). Furthermore, the Board's order contained a “Notice of Appeal Rights” section specifying the party's appeal options, indicating that the Board's review was complete. Id.

¶ 9 Unlike the order at issue in Ameritemps, the Commission's order in this matter denied only the pending motion to dismiss. It did not decide whether or not Heber Light was in fact exceeding its municipal powers and infringing on Rocky Mountain's certificated area, but rather opined that the Commission had the authority to complete its administrative process and make such a determination. Far from ending the administrative process, the order signaled the beginning of the process, a process that would be disrupted were Heber Light allowed to appeal.

B. Rights or Obligations Determined

¶ 10 The Commission's order did not confer any rights or obligations upon the parties. Unlike the situation in Ameritemps, where the Board awarded permanent total disability compensation payments after a finding of total disability, 2005 UT App 491, ¶ 20, 128 P.3d 31, the Commission in this case did not reach any final determination regarding Heber Light's authority to provide power. The order stated, “[t]o the extent [Heber Light] serves those extra-territorial customers, and to the extent it is acting just like any other public utility, it seems the legislature intended it would be considered a corporation, association, etc. and would be subject to commission jurisdiction as would any other public utility.” Because the Commission's order did not finally determine whether Heber Light is in fact operating in a way that would subject it to Commission regulation, the order did not determine Heber Light's rights and obligations.

C. Preliminary, Preparatory, Procedural, or Intermediate

¶ 11 The Commission's order is clearly a preliminary ruling. Indeed the Commission was still in the process of adjudicating the dispute after the order was issued. In Barker v. Utah Public Service Commission, we identified three prior Utah cases evaluating finality and

“found no final order in the following circumstances: (1) a remand for further proceedings Sloan v. Board of Review, 781 P.2d 463, 464 (Utah Ct.App.1989); (2) an order converting informal proceedings into formal ones Merit Elec. & Instrumentation v. Department of Commerce, 902 P.2d 151, 153 (Utah Ct.App.1995); and (3) a denial of a motion to dismiss Barney v. Division of Occupational & Professional Licensing, 828 P.2d 542, 544 (Utah Ct.App.1992).”

970 P.2d 702, 706 (Utah 1998).

¶ 12 The Barney case is particularly instructive. In Barney, the Division of Occupational and Professional Licensing filed a petition alleging that the petitioner in that case was guilty of unprofessional conduct. 828 P.2d at 543. The petitioner filed with the Division a motion to dismiss for lack of subject matter jurisdiction based on double jeopardy grounds since the petitioner had previously been acquitted of the abuse charges that served as the basis of the unprofessional conduct complaint. Id. His motion was denied. Id. Despite the...