Northern Utilities, Inc. v. Public Service Commission

• Decision Date: 10 October 1980
• Docket Number: No. 5294,5294
• Citation: 617 P.2d 1079
• Parties: NORTHERN UTILITIES, INC., Northern Utilities Division of Kansas-Nebraska Natural Gas Company, Inc., Northern Gas Company, and Northern Gas Division of Kansas-Nebraska Natural Gas Company, Inc., Appellants (Petitioners), v. PUBLIC SERVICE COMMISSION of Wyoming, Appellee (Respondent).
• Court: Wyoming Supreme Court

Page 1079

617 P.2d 1079

NORTHERN UTILITIES, INC., Northern Utilities Division of Kansas-Nebraska Natural Gas Company, Inc., Northern Gas Company, and Northern Gas Division of Kansas-Nebraska Natural Gas Company, Inc., Appellants (Petitioners), v. PUBLIC SERVICE COMMISSION of Wyoming, Appellee (Respondent).

No. 5294.

Supreme Court of Wyoming.

Oct. 10, 1980.

Wm. Bryce Arendt, Wm. H. Brown and Claude W. Martin (argued), Casper, for appellants (petitioners).

John D. Troughton, Atty. Gen., Thomas J. Carroll, III, Senior Asst. Atty. Gen., Natural Resources Division and Steven R. Shanahan, Asst. Atty. Gen. (argued), Cheyenne, for appellee (respondent).

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

RAPER, Chief Justice.

The district judge dismissed as moot appellants' (Northern's) Petition for Review of orders of the appellee Public Service Commission (PSC) suspending temporary tariffs filed by appellants in connection with applications for new increased rates for natural gas supplied to its customers pending the PSC's investigation, hearing and decision ¹ on the ground that no applications were pending before the PSC in that they had been rejected for filing.

The appellants state the issues to be:

1. "Whether the court below erred in recognizing as valid the action of the Commission taken during the time that the reviewing court had exclusive jurisdiction of the case?"

2. "Whether the court below erred in refusing to order the Commission to certify and transmit the whole record to the district court?" (Emphasis in original.)

The PSC contends that the issues are:

1. "Whether an order of the PSC pursuant to W.S. 37-3-106(c) suspending an application for temporary rate increase is an appealable order under Rule 1.05, Wyoming Rules of Appellate Procedure."

2. "Whether a 'Petition for Review' of a PSC order suspending an application for interim rate relief deprives the PSC of jurisdiction from entering an order rejecting for filing the appellant's permanent rate increase applications which are the basis for the temporary rate increase applications."

3. "Whether a 'Petition for Review' of a PSC order suspending an application for interim rate relief deprives the PSC of jurisdiction from entering an order rejecting for filling the appellants' Application for Interim Rate Relief, when such rejection is based upon and enforces a prior existing order of the PSC which the appellants have ignored or defied."

4. "Whether the district court erred in denying appellants' 'Application to have the Record Certified and Transmitted to the District Court', when such application was made after the District Court had entered its final order on appellants' 'Petition for Review' and at the same time as appellants were perfecting their appeal to the Supreme Court."

Northern argues:

1. "The suspension of a change in tariff rate proposed under § 37-3-106(d) W.S. (1977) ² is a 'final decision ... or such other agency action or inaction' within the meaning of § 9-4-114(a) (W.S.1977) ³ such that it is subject to judicial review." (Bracketed footnote markers, footnotes and other material added.)

2. "The institution of proceedings seeking judicial review of an order of an administrative agency deprives the agency of jurisdiction over the matters under review and invests the district court with exclusive jurisdiction thereof."

PSC counters:

1. "An order issued by the PSC pursuant to W.S. 37-3-106(c) (see fn. 1) is not an appealable order."

2. "The PSC retained jurisdiction over the general rate increase application, and no 'Stay of Enforcement' order prevented the PSC from continuing to process the interim and permanent applications."

3. "The PSC retained jurisdiction to enforce its prior order concerning filing."

4. "A petitioners' complaint that a state agency has failed to certify to the District Court the complete record on a 'Petition for Review', pursuant to Rule 12.07, W.R.A.P., ⁴ must be brought before the District Court has entered an order on the petition, and not as the petitioner is perfecting an appeal to the Supreme Court." (Footnote marker and footnote added.)

We will affirm.

Appellants, who we refer to collectively as Northern, are four separately certificated public utilities, each operating under a separate certificate of public convenience and necessity issued by the PSC. ⁵ Northern, on December 3, 1979, filed four "permanent" applications, one for each of the four appellants, seeking approval of new tariff schedules which were attached. On December 4, 1979, the PSC, by four orders, respectively, suspended the effective date for the six-month period authorized by § 37-3-106(c) (see fn. 1). ⁶

Additionally, on December 3, 1979, Northern filed four separate applications, one for each appellant, with the PSC requesting that if the "permanent" tariffs were suspended, a portion, according to tariff schedules attached, be placed in effect immediately subject to refund pending a hearing and decision by the PSC. These are referred to as "temporary" applications for an interim rate. On December 14, 1979, the PSC, by four orders, respectively, "suspended" the effective date of the "temporary" tariffs for six months.

On January 11, 1980, Northern petitioned the district court for review of the PSC orders "suspending" the "temporary" tariffs. Concurrently, Northern filed a Motion for an Order of the District Court to Stay Enforcement of the Orders of the Public Service Commission of Wyoming, dated December 14, 1979, "suspending" the temporary rates which, if granted, would have the effect of a preliminary injunction placing the "temporary" rates into effect subject to refund. ⁷ The response of the PSC was its filing on January 30, 1980 of a Motion to Dismiss on the ground that the matter was moot because on the date of the PSC's motion in the district court it had denied the applications for "temporary" tariffs and had rejected for filing both the "temporary" and "permanent" applications. On the same date as the motion was filed, a hearing was conducted on Northern's Motion for Order to Stay Enforcement. Following that hearing, the district court entered its Order Granting Motion to Dismiss. The order stated in part:

"The Court finds that a decision upon the merits of this case would be ineffectual as the Public Service Commission has rejected the application of the Petitioners for an interim rate increase. Said rejection supercedes (sic) the Respondent's suspension orders making a challenge to the Suspension Orders moot. Belondon v. State, 379 P.2d 828, 829 (Wyo., 1963). Cheever v. Warren, 70 Wy. 296, 249 P.2d 163, 167 (1952)." ⁸ (Emphasis added.)

The basis for the PSC's rejection of Northern's applications for permanent and interim rate increases was that in 1978 after hearing on Northern's last general increase applications, a portion of the PSC's order entered at that time required the Northern companies to make a consolidated filing of future requests for a rate increase. ⁹ The PSC by rejection of Northern's four separate applications for a general rate increase and rejection and denial of the four separate applications for an interim rate increase was seeking to enforce its 1978 order, which it contends was defied by Northern again filing and docketing with the PSC separate applications for rate increases: one for each of the utilities, seeking "permanent" rate increases, and one for each of the utilities seeking "temporary" increases. We do not, in this appeal, consider the propriety of this action by the PSC.

The PSC claims that it had authority to do so under its Rule 104(a):

"a. All applications, petitions, formal complaints, motions or other communications should be addressed to the Commission and should designate the Commission docket number if known. The person filing or communicating should state his address and the party he represents. Any filing must be accompanied by appropriate fees as required by law. If the Commission is of the opinion that any matter tendered for filing is deficient or incomplete, the Commission may decline to accept the matter as filed and shall advise the person filing where the deficiency lies. The date of receipt of a filing by the Commission and not the date of deposit in the mails is the receipt or filing date for all purposes in these rules." (Emphasis added.)

Northern takes the view that once proceedings are instituted seeking review of an order of the administrative agency, the agency loses its jurisdiction over the matters under review while simultaneously the district court acquires exclusive jurisdiction. Therefore, the PSC was without jurisdiction to reject Northern's filings. We acknowledge that this is generally true. State ex rel. Fawcett v. Board of County Com'rs of Albany County, 1954, 73 Wyo. 69, 273 P.2d 188. However, as will be explained, this case does not fit within that rule.

We do not have before the court in this case the question of whether or not it was error on the part of the PSC to reject the filings as being outside its statutory or rule-making authority or otherwise improper to do so. It is our understanding that a separate appeal to the district court from the rejection of Northern's filings is pending. The fact remains, for the purposes of this appeal, that because of the rejection by the PSC, we are only considering and deciding the narrow issue of mootness arising out of the dismissal of the appeal by the district judge.

To summarize the rate change procedure: a public utility may charge its rates only as set forth in new tariffs and schedules as filed with the PSC, § 37-3-102, W.S.1977. Such rates must be "just and reasonable," § 37-3-101, W.S.1977. A change in rates can be made by filing with the PSC the "application or tariff" containing the new rates, § 37-3106(c), W.S.1977, (see fn. 1) with notice to the PSC given thirty days before the effective date of the change, § 37-3-106, W.S.1977. The PSC may...