Public Serv. Co. of Colorado v. Andrus
| Decision Date | 31 May 1977 |
| Docket Number | Civ. A. No. 76-F-48. |
| Citation | 433 F. Supp. 144 |
| Parties | PUBLIC SERVICE COMPANY OF COLORADO, Arizona Public Service Company, Idaho Power Company, Montana Power Company, Pacific Power & Light Company, Southern California Edison Company, Plaintiffs, v. Cecil D. ANDRUS, Secretary of the Interior, Curt Berlund, Director of Land Management, Dale Andrus, Director of the Colorado State Office of the Bureau of Land Management, Robert O. Boffington, Director of the Arizona State Office of the Bureau of Land Management, Edward Hartey, Director of the California State Office of the Bureau of Land Management, William L. Mathews, Director of the Idaho State Office of the Bureau of Land Management, Edwin Zaidlicz, Director of the Montana State Office of the Bureau of Land Management, E. I. Rowland, Director of the Nevada State Office of the Bureau of Land Management, Murl W. Storms, Director of the Oregon State Office of the Bureau of Land Management, Daniel P. Baker, Director of the Wyoming State Office of Bureau of Land Management, Defendants. |
| Court | U.S. District Court — District of Colorado |
COPYRIGHT MATERIAL OMITTED
Bryant O'Donnell, James R. McCotter, Kelly, Stansfield & O'Donnell, Denver, Colo., and Francis M. Shea, Richard T. Conway, William S. Moore, James R. Bieke, Shea & Gardner, Washington, D. C., for plaintiffs.
Cathlin Donnell, U. S. Atty., by Hank Meshorer, Dept. of Justice, Denver, Colo., and James P. Gatlin, U. S. Asst. Atty., Denver, Colo., for defendants.
Plaintiffs are six utility companies who provide electrical services to the Western states. They bring this declaratory and injunctive case requesting review of regulations dealing with charges assessed by the Secretary of the Interior. On cross motions for summary judgment the parties seek declaratory relief determining the legality of the regulations. The parties have filed a statement of uncontested facts.1 In addition, numerous exhibits have been admitted into evidence.
Specifically, plaintiffs challenge certain regulations promulgated by the Bureau of Land Management (BLM), Department of the Interior, requiring applicants for rights of way across public lands to reimburse the government for costs incurred in the processing and monitoring of the applications. In connection with plaintiffs' operations in six western states providing electrical service, plaintiffs obtain rights of way across federal lands for electric power transmission and distribution lines. Plaintiffs do not contest the requirement that they pay fair market value to the government for the rights of way. What is contested are the charges made under the regulations for the processing of rights of way applications and monitoring the activities of the applicant after a right of way has been granted.
The reimbursement regulations which we review, 43 C.F.R. § 2802.1-2 et seq. became effective on June 1, 1975. They require applicants and holders of rights of way across government land to reimburse BLM for its costs in processing right of way applications and monitoring the applicant's activities along the granted right of way. Prior to the effective date of the regulations, the BLM required only a $10.00 filing fee for the processing and monitoring functions. Stip. Para. 19.
On October 21, 1976 the Federal Land Policy and Management Act (FLPMA) became effective. The FLPMA was designed to provide BLM with "a modern statutory management mandate" for the administration of public lands. S.Rep.No. 94-583, 94th Cong. 1st Sess. at 34 (1975). It appears that reimbursement costs for right of way applications pending after the effective date of the FLPMA will be assessed under the new act. The Secretary of the Interior has not yet interpreted the Act nor promulgated regulations thereunder. Thus, the reimbursement regulations which we review have had a short lifespan — from their effective date in June of 1976 to the enactment of the FLPMA in October of 1976.2
Under the reimbursement regulations an applicant must submit with its application a non-returnable sum in an amount fixed by the regulations. Sec. 2802.1-2(a)(3). After a right of way is granted, the applicant is required to submit another fixed amount to reimburse the government for the costs associated with the monitoring of the right of way. Sec. 2802.1-2(b)(2). Both fees are based on the size or length of the project. The monitoring is an incident to the issuance of the right of way and concerns construction requirements such as avoiding changes in the natural flow of surface waters, minimal disturbance of flora and the like.
Where "actual costs" attributed to a right of way exceed the non-returnable fixed fee for processing or monitoring, the applicant is required to reimburse the BLM for the difference. Sec. 2802.1-2(a)(4)-(8), (b)(3) and (b)(4). If an applicant withdraws its application prior to approval, or the application is denied, it remains liable for reimbursement of the actual costs involved in the incompleted processing. Sec. 2802.1-2(a)(6) and (7). Actual costs are composed of two elements: direct and indirect costs. All costs which can be readily identified to a particular applicant through the BLM's cost accounting system are charged to it as direct costs. These costs include the salaries and benefits paid to technical specialists assigned to preparing environmental impact statements; travel associated with the project; contracts to gather inventory data needed in preparation of the impact statement; land examination work; field inspections of the proposed route; public relations and public affairs work; wages paid to BLM employees for the time spent on a particular project; and various technical, clerical and administrative support costs (including employee training and employee safety training). Stip. Paras. 42-49.
Indirect costs include the salaries of office heads and general administrative personnel in multi-functional offices. They include the costs of organizational components whose work cannot be readily allocated to a particular applicant, such as work accomplished in the BLM's records system division the Office of Equal Employment Opportunity and safety officers. Indirect costs also include the costs of services which would be difficult or impossible to allocate to individual applicants. For example, telephone bills, office space rental, postage and employee transfer costs. Since indirect costs by their nature cannot be assigned to a particular project they are assessed at the rate of 30 percent of direct costs assessed. Stip. Paras. 50-54.
Paul M. Vetterick, Chief of the Division of Budget and Program Development, BLM, was involved in the drafting, promulgation and enforcement of the reimbursement regulations. In his affidavit, Mr. Vetterick states that "The reimbursement regulations were drafted with the intention that all costs incurred by the BLM on behalf of an applicant's project was to be the sole measure of the required reimbursement." (Emphasis added.)
As of November 1, 1976, all of the plaintiffs but one have been charged actual costs above the fixed fees.3 Altogether, plaintiffs have been billed some $1.6 million of which over $1.4 million has been paid. Part of the $1.6 million was assessed against applications which were pending on the effective date of the regulations, June 1, 1975, but for work which was accomplished prior to that effective date. See Sec. 2802.1-2(a)(15).
The largest portion of the actual costs assessed are the result of the environmental analysis and environmental impact statement which is prepared for each right of way application. See Sec. 2802.1-2(a)(1). Approximately 80 percent of the direct costs are attributable to these reports. In preparing its environmental reports, the BLM does not merely consider the impact of the project over the right of way. Rather, the entire area within the project's "sphere of influence" is reviewed. Thus, if a plaintiff were to construct a power generating plant on private land, but some part of the transmission line runs across federal lands, environmental reports could consider the impact of the entire project. Stip. Para. 55.
BLM Instruction Memorandum 76-263, dated May 18, 1976 (Ex. 24), was circulated to aid in the determination of those portions of a project which are within the sphere of influence. One example in the memorandum posits a situation where a proposed electric generating plant situated on private lands requires transmission lines across federal lands. The commentary accompanying the graphic example states:
All costs related to right of way applications are costs recoverable and chargeable. . . . In this example, the "sphere of influence" would include costs associated with the proposed power generating plant, its coal source and the proposed rights of way for the pipeline and transmission lines. The rights of way are the key mechanisms for developing the project. Without the issuance of these grants, the project could not be implemented. (Emphasis added.)
If the reimbursement payments made by an applicant exceed the BLM's costs, the agency may either refund the excess or apply it to the "next billing". 43 C.F.R. § 2802.1-2(a)(8).
Defendant officials of the Interior take the position that this court is without jurisdiction to determine the validity of plaintiffs' claims insofar as they allege the taking of private property without due process of law. It is asserted that 28 U.S.C. § 1491 (the Tucker Act), prohibits district courts from determining monetary claims against the United States which exceed $10,000. The short answer to this contention is that we have not been asked to adjudicate a monetary claim against the United States. Rather, in this action for declaratory relief, the court is beseeched to determine the validity of certain administrative regulations. That our determination may have some incidental affect on the fisc (as do most...
To continue reading
Request your trial
-
US v. An Article of Drug Neo-Terramycin
...has retroactive effects, it may still be sustained despite such retroactivity if it is reasonable. Id.; Public Service Co. of Colorado v. Andrus, 433 F.Supp. 144, 154 (D.Col.1977). It should be noted that an interpretative rule does not primarily have future effect and, therefore, is not a ......
-
Nevada Power Co. v. Watt
...were authorized, the statutes represented an unconstitutional delegation by Congress of the tax power. In Public Service Co. v. Andrus, 433 F.Supp. 144 (D.Colo.1977) (PSC I ), Judge Finesilver held that the IOAA and PLAA authorized Interior to recover costs only for services providing "spec......
-
Alyeska Pipeline Service Co. v. US
...1976), was in force. That statute perhaps would have authorized the Secretary to impose these fees. But see Public Serv. Co. v. Andrus, 433 F.Supp. 144, 149-50 (D.Colo.1977). Like the Independent Offices Appropriation Act, however, the Public Land Administration Act required the Secretary t......
-
Gooderham v. Adult & Family Services Div. of State of Or.
...are invalid if their retroactivity is unreasonable in the circumstances * * *." Davis, supra, at 109. See also Public Serv. Co. of Colorado v. Andrus, 433 F.Supp. 144 (D.D.C.1977); General Telephone Co. of Southwest v. United States, 449 F.2d 846, 863 (5th In Securities Comm'n v. Chenery Co......
-
CHAPTER 7 RIGHTS-OF-WAY UNDER TITLE V OF FLPMA
...79-115 (Dec. 4, 1978). [106] Alumet v. Andrus, 607 F.2d 911 (10th Cir. 1979). An earlier case, Public Service Co. of Colo. v. Andrus, 433 F. Supp. 144 (D. Colo. 1977), considered a broad-based challenge to the earlier BLM program, which was based on different statutory authority. The court ......
-
CHAPTER 5 CURRENT ISSUES IN ACQUISITION AND MAINTENANCE OF DEVELOPMENT RIGHTS ON PUBLIC LANDS
...F.2d 913 (10 Cir. 1983); Colorado Ute Electric Assn. v. Watt, 533 F. Supp. 197 (D. Colo. 1982); Public Service Co. of Colo. v. Andrus, 433 F. Supp. 144 (D. Colo. 1977); Alaskan Arctic Gas Pipeline Co. v. United States, 9 Cl. Ct. 723 (1986). [84] 43 U.S.C. § 1734(b). [85] 346 DM 1.2.A. [86] ......
-
CHAPTER 9 MINERAL LEASING ACT OF 1920
...Colorado-Ute Electric Association v. Watt (82-1304). [102] 43 U.S.C. § 1734(b). [103] 48 Fed. Reg. 48478 (October 19, 1983). [104] 433 F.Supp. 144 (D. Colo. 1977). [105] Alyeska Pipeline Service Co. v. United States, 624 F.2d 1005 (Ct. Cl. 1980). [106] 43 CFR 2883.1-2 . [107] 43 CFR 2803.1-......