Idaho Fair Share v. Idaho Public Utilities Com'n

Decision Date17 February 1988
Docket NumberNo. 16469,16469
Citation751 P.2d 107,113 Idaho 959
PartiesIDAHO FAIR SHARE, Appellant, v. IDAHO PUBLIC UTILITIES COMMISSION, Respondent, and Washington Water Power Co., Intervenor.
CourtIdaho Supreme Court

Charles Sheroke, Coeur d'Alene, and Daniel W. Meek, (argued), Portland, Or., for appellant.

Jim Jones, Atty. Gen., for respondent. Michael S. Gilmore, Deputy Atty. Gen., argued.

Paine, Hamblen, Coffin, Brooke & Miller, Coeur d'Alene, for intervenor Washington Water Power Co. Robert E. Neate, argued.


The opinion of Oct. 29, 1987 is withdrawn and this opinion is substituted therefor.

BISTLINE, Justice.

Idaho Fair Share is a non-profit consumer and environmental protection citizen organization funded primarily through membership dues and contributions. Washington Water Power (WWP) is an investor-owned utility which provides electric service to customers in Washington and Idaho.

In 1983, WWP initiated a rate case, No. U-1008-185, before the Public Utility Commission to apply for an increase in WWP's charges to customers. Idaho Fair Share intervened in that rate case, and alleged that WWP's rates improperly included costs pertaining to its investment in the Washington Public Power Supply System (WPPSS) Washington Nuclear Project No. 3. Thereupon, the IPUC placed WWP on formal notice that its continued involvement in WNP-3 would become an issue in that rate case. WWP responded to the IPUC's notice by moving to sever WNP-3 issues from the rate case on the grounds that the IPUC's notice presented planning and contract questions, not rate questions. The Commission responded to WWP's motion by creating Case U-1008-204, in which Fair Share was also an intervenor. In Case U-1008-204, Fair Share submitted testimony through its expert witnesses that differed from the Commission staff's and witness's positions and that was in opposition to WWP's positions with regard to several matters.

During the course of this WNP-3 proceeding, the legislature enacted I.C. § 61-617A which authorizes the payment of intervenor legal fees and costs. The statute became effective on July 1, 1985. On November 13, 1985, Fair Share filed a timely application for intervenor compensation.

Fair Share's application requested compensation for the efforts of two attorneys, one expert witness and for the research costs of Fair Share's director. The application totaled in excess of $53,000. Fair Share sought the statutory maximum of $20,000.

The Commission addressed the substantive issue of ratemaking treatment for WWP's investment in WPPSS Plant No. 3 and Fair Share's application in Order No. 20208. The Commission found that Fair Share had substantially and materially contributed to the Commission's decision, specifically noting that the intervenor's "excellent brief fully justifies award of some intervenor funding." R., p. 471.

However, the Commission also found that not all of the work for which Fair Share sought reimbursement was relevant to the Commission's decision. The amount it awarded was slightly less than $10,000. The Commission specifically refused to compensate Fair Share for any work performed prior to July 1, 1985, the effective date of I.C. § 61-617A. Neither WWP nor the Commission dispute the reasonableness of hourly fee rates submitted by Fair Share's expert and attorneys. The Commission reaffirmed its decision in Order No. 20266. R., pp. 570-79.

Fair Share's appeal presents the following issues for review:

1. Whether the standard of appellate review of the Commission's interpretation of the intervenor compensation statute is provided by the Administrative Procedure Act, I.C. § 67-5215(g), or I.C. § 61-629.

2. Whether the Commission erred by failing to consider any of Fair Share's legal fees and costs incurred prior to July 1, 1985, the effective date of I.C. § 61-617A.

3. Whether the Commission properly exercised its discretion in awarding legal fees and costs only for those efforts of fair share it deemed relevant to its decision.

For reasons discussed below, we affirm in part, reverse in part, and remand for further proceedings.


Fair Share argues that our review of the Commission's application of the intervenor compensation statute is controlled by the standards of review appropriate under the Administrative Procedure Act, Idaho Code Title 67, Chapter 52. The Commission counters by stating that the Court's role is limited by the deferential standard contained in I.C. § 61-629 as interpreted in Intermountain Gas Co. v. Public Utilities Commission, 97 Idaho 113, 540 P.2d 775 (1975). Neither position is correct.

The Administrative Procedure Act, by the express terms of its provision for judicial review, excludes the Public Utilities Commission and the Industrial Commission:

Judicial Review of Contested Cases--(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case of an agency other than the industrial commission or the public utilities commission is entitled to judicial review under this act. I.C. § 67-5215 (emphasis added). See also, Application Hayden Pines Water Co., 111 Idaho 331, 335, note 1, 723 P.2d 875, 878, note 1 (1986).

The standard of review contained in I.C. § 61-629 is also inapplicable. The statute provides as follows:

The review on appeal shall not be extended further than to determine 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. I.C. § 61-629. (emphasis added)

Title 61, Chapter 5 of the Idaho Code details the matters that are within the authority of the Commission:

The public utilities commission is hereby vested with power and jurisdiction to supervise and regulate every public utility in the state and to do all things necessary to carry out the spirit and intent of the provisions of this act. I.C. § 61-501.

It is apparent that the Commission's authority is generally supervisory and regulatory. The detailed provisions of Title 61, Chapter 5, demonstrate that the legislature has delegated primarily ratemaking and oversight powers to the Commission. See Washington Water Power Co. v. Kootenai Environmental Alliance, 99 Idaho 875, 882, 591 P.2d 122, 129 (1979). The standards, urged upon us by the Commission, that are derived from Intermountain Gas, supra, are inapplicable. That case reviewed orders of the Commission that set rates and divested the utility of its appliance business.

Here, however, we review the Commission's interpretation and construction of I.C. § 61-617A, the intervenor compensation statute, which is not a ratemaking nor a supervisory matter. While myriad cases state that the construction given a statute by an administrative agency is entitled to great weight, see Kopp v. State, 100 Idaho 160, 163, 595 P.2d 309, 312 (1979) (see cases cited within); Public Utilities Commission v. V-1 Oil Co., 90 Idaho 415, 420, 412 P.2d 581, 586 (1966) (see cases cited within), the proposition is commonly stated with the proviso that the administrative construction will not be followed if there are cogent reasons for holding otherwise. Id. In addition, there are two unanimous decisions of this Court which establish the position that whether an administrative construction is correct is ultimately a question for judicial decision. Ware v. State Tax Commission, 98 Idaho 477, 481, 567 P.2d 423, 427 (1977); Compensation Co. v. Hubbard, 70 Idaho 59, 62, 211 P.2d 413, 416 (1949).

Finding that there are cogent reasons for straying from the Commission's reading of the statute and recognizing that the construction of a statute is matter of law for the judiciary, we will apply the standard of free review to the Commission's interpretation of I.C. § 61-617A to which we now turn.


Fair Share contends that the Commission erred by failing to consider any of Fair Share's legal fees and costs incurred prior to July 1, 1985, the effective date of I.C. § 61-617A. We agree.

The Commission counters with the prohibition of I.C. § 73-101 against retroactive application of statutes unless expressly so declared. This position misses the point. If the Commission had issued its decision and order prior to July 1, 1985, thereby completing the WNP-3 proceeding, Fair Share would be advocating a retrospective application of the statute.

But this was not the case. Order No. 20208 was issued January, 1986; the final order, No. 20266, was issued February 14, 1986. Therefore, the proceeding was pending before the Commission when the intervenor compensation statute took effect on July 1, 1985. Fair Share contends that these circumstances dictate a prospective application to a current proceeding. This position finds support from three sources: (1) the wording of the statute itself, (2) cases dealing with other attorney's fees statutes, and (3) a California case very much on point with the facts of this case.

The plain wording of the statute supports Fair Share. The first paragraph provides:

(1) It is hereby declared the policy of this state to encourage participation at all stages of all proceedings before the commission so that all affected customers receive full and fair representation in those proceedings. I.C. § 61-617A (Supp.1987) (emphasis added).

On July 1, 1985, the WNP-3 proceeding was a proceeding "before the commission." Efforts expended before July 1, 1985, were part of "all stages of all proceedings" before the Commission. It is the express policy of the statute to encourage participation in by intervenors by awarding all or a portion of the costs of intervention. This very broadly worded declaration of policy inevitably brought the WNP-3 proceeding, and Fair Share's participation, within the statute's ambit.

Closely analogous Idaho cases support Fair Share. The leading case is Jensen v....

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