Vandehei Developers v. Public Service Com'n of Wyoming, 89-199

• Decision Date: 25 April 1990
• Docket Number: No. 89-199,89-199
• Parties: VANDEHEI DEVELOPERS, Intervenor, Fekany Enterprises, Inc., Mary Ann Tensley and Kevin Tensley, Petitioners, v. PUBLIC SERVICE COMMISSION OF WYOMING; and Cheyenne Light, Fuel and Power Company, Respondents.
• Court: Wyoming Supreme Court

Page 1282

790 P.2d 1282

112 P.U.R.4th 236

VANDEHEI DEVELOPERS, Intervenor, Fekany Enterprises, Inc., Mary Ann Tensley and Kevin Tensley, Petitioners, v. PUBLIC SERVICE COMMISSION OF WYOMING; and Cheyenne Light, Fuel and Power Company, Respondents.

No. 89-199.

Supreme Court of Wyoming.

April 25, 1990.

Bert I. Ahlstrom, Jr., Cheyenne, for petitioner Vandehei Developers.

Edwin H. Whitehead of Whitehead, Gage & Davidson, Cheyenne, for petitioners Fekany Enterprises, Inc., Mary Ann Tensley, and Kevin Tensley.

Joseph B. Meyer, Atty. Gen., Mary B. Guthrie, Sr. Asst. Atty. Gen., and Milo M. Vukelich, Asst. Atty. Gen., for respondent Public Service Com'n of Wyoming.

John A. Sundahl and George E. Powers, Jr. of Godfrey & Sundahl, Cheyenne, for respondent Cheyenne Light, Fuel and Power Co.

Before CARDINE, C.J., THOMAS and MACY, JJ., BROWN, Ret. J., and LEHMAN, District Judge.

BROWN, Justice, Retired.

Cheyenne Light, Fuel and Power Company (Cheyenne Light) sought approval from the Public Service Commission of Wyoming (PSC) to construct a transmission line in north Cheyenne, Wyoming, with a portion of the proposed line to run over and through property owned by petitioners. The PSC granted Cheyenne Light the authority to build the line and this appeal followed.

On appeal, petitioners urge three issues:

Whether the actions, findings and conclusions of the Public Service Commission of Wyoming are unlawful and should be set aside:

I

For the reason that they constitute an abuse of discretion, are arbitrary and capricious, or are otherwise not in accordance with law.

II

For the reason that the Commission acted in excess of statutory jurisdiction, authority or limitations, or was lacking statutory right.

III

For the reason that the actions, findings and conclusions of the Commission are unsupported by substantial evidence.

We will affirm.

On March 15, 1988, the Laramie County Board of Commissioners (the Board) denied Cheyenne Light permission to use county rights-of-way for construction of a planned transmission line that was to run from a substation north of Frontier Mall, west along Four Mile Road and thence to Francis E. Warren Air Force Base. The Board ruled that the line could not be placed above ground because it would disrupt county residents. However, the Board stated that if the line were placed underground, authority for use of county rights-of-way would be granted.

After the Board's decision, Cheyenne Light applied to the PSC for a determination that a certificate of public convenience and necessity was not required to operate the proposed line and related facilities. In the alternative, Cheyenne Light applied for a certificate of public convenience and necessity authorizing the line to be built.

On December 8, 1988, the PSC gave public notice setting Cheyenne Light's application for public hearing. Several parties, including petitioners, intervened. On January 17, 18 and 19, 1989, the PSC held a public hearing to consider an application of Cheyenne Light to build approximately eleven miles of transmission line in north and northwest Cheyenne. The portion of the line at issue here runs from a substation north of Frontier Mall at the intersection of Powder House Road and Four Mile Road and thence west along Four Mile Road to the east boundary of Francis E. Warren Air Force Base. Authority was also sought to install necessary equipment.

On February 23, 1989, the PSC entered its order on Cheyenne Light's application. This order found that there was public need for the proposed line and related facilities; Cheyenne Light and its customers would receive increased reliability and facility-use benefits from approval of the line; and placing the line underground would expose Cheyenne Light to an extraordinary amount of expense when compared to putting the line overhead. The order further held that, based upon extensive health and medical testimony, there were no health risks involved by having the line installed above ground. The PSC rejected an underground line stating that to do so would lead to service problems, place an unreasonable burden on Cheyenne Light's ratepayers, and would cost 7.9 times more than installing the line overhead.

On March 17, 1989, a group of individuals known as the Read Tract Residents petitioned the PSC to rehear the Cheyenne Light application. The Read Tract Residents claimed insufficient notice of the original hearing and that the notice did not state that alternative routes would be considered. The PSC granted a rehearing which was held on May 1, 1989. On June 5, 1989, the PSC entered its order on rehearing stating that the line should be routed from where Four Mile Road intersects Interstate 25 directly west to Francis E. Warren Air Force Base. The original order of the PSC provided that the line go around petitioners' property. The order on rehearing provided that a portion of the line run over and through petitioners' property. On June 23, 1989, petitioners filed their petition for review with the District Court for the First Judicial District. The district court certified this matter to the Supreme Court.

In this appeal, we are governed by certain rules previously announced by this court. The Supreme Court will review the decision of an administrative agency as if it were a reviewing court of the first instance. Exxon Corporation v. Wyoming State Board of Equalization, 783 P.2d 685 (Wyo.1989). Petitioners have the burden of proving that the PSC's actions are arbitrary, capricious or an abuse of discretion. Wyoming Bancorporation v. Bonham, 527 P.2d 432, 439 (Wyo.1974), op. supp., 563 P.2d 1382 (Wyo.1977), reh'g denied, 566 P.2d 219 (Wyo.1977). The reviewing court must examine whether the decision made by an administrative agency has been reached on relevant factors and was rational. Tri-State Generation and Transmission Association, Inc. v. Environmental Quality Council, 590 P.2d 1324, 1331 (Wyo.1979). Agency decisions are to be reversed only for errors of law. Shenefield v. Sheridan County School District No. 1, 544 P.2d 870, 874 (Wyo.1976). Further, courts will not substitute their judgment for that of an administrative agency. Gilmore v. Oil and Gas Conservation Commission, 642 P.2d 773 (Wyo.1982).

I

In the first issue raised on appeal, petitioners contend that the PSC acted in an arbitrary and capricious manner and abused its discretion in making the order appealed from. The terms "abuse of discretion," "arbitrary," and "capricious" are frequently used interchangeably. In this opinion we will not attempt to explain minute differences in meaning except to say arbitrary or capricious actions are ways to abuse discretion.

Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.

Martin v. State, 720 P.2d 894, 897 (Wyo.1986).

Petitioners contend that the PSC made its second order without substantial evidence being presented at the rehearing. W.S. 37-2-214 (1977) ¹ provides for rehearing; however, this statute does not require that new evidence be presented. A rehearing may be had if, in the judgment of the PSC, "sufficient reason therefor be made to appear." A rehearing may be proper whether or not new evidence is contemplated.

In Utah Power & Light Company v. Public Service Commission of Wyoming, 713 P.2d 240, 244 (Wyo.1986), we held "[a] rehearing is in the discretion of the agency and will be interfered with only for a clear abuse of such discretion." In that case, we quoted with approval the court's definition of abuse of discretion explained in Martinez v. State, 611 P.2d 831, 838 (Wyo.1980):

A court does not abuse its discretion unless it acts in a manner which exceed the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances.

Petitioners do not contend that the final action of the PSC order appealed from would have been arbitrary, capricious and an abuse of discretion in any case. Their contention rather is that the PSC changed its mind and in doing so abused its discretion. We cannot agree.

The PSC was influenced to grant the petition for rehearing because it was not satisfied that sufficient notice had been given to several affected property owners. While general notice of a hearing had been given, some property owners were not aware that an additional route was to be considered. At the rehearing, the property owners who petitioned for a rehearing testified concerning the effect the route ordered by the PSC would have on them. Considerable additional evidence was produced at the rehearing. There was additional and more specific evidence regarding costs of the alternative routes for the line. Evidence was also produced regarding the problem of obtaining easements for the alternative routes. In addition to the new evidence received at the rehearing, the PSC considered and re-evaluated the evidence produced at the first hearing.

We believe that the PSC's final determination was based on relevant factors and was rational. We are not aware of any errors in law made by the PSC, and we will not substitute our judgment for that of the PSC. Petitioners have not met their burden to demonstrate that the action of the PSC was arbitrary, capricious or an abuse of discretion.

II

The Board conditioned Cheyenne Light's use of county rights-of-way by requiring that Cheyenne Light place its lines underground. In petitioners' second issue on appeal, they attempt to structure a conflict in the powers of the PSC and the Board.

The PSC's statutory authority is set out in W.S. 37-2-112 (1977): "The Commission shall have general and exclusive...