*1 statutes, continuing ny Mr. Orr have a
obligation his wife based on former
agreement essence, of state a matter —in law.” contract
Hence, agree majority I result, a correct I would so hold
reached but
on basis that of the modification terms
alimony obligation barred Also, parties. the contract between I
would reverse the trial court’s plaintiff-petitioner fees to on the ground
additional is barred parties. of the
contract of the the Matter Consideration
Advertising Forth in Sec Standards set 113(b)(3), 303(b)(2) 113(b)(5) tions Utility Regulatory Idaho Public Act of
Policies 1978. COMPANY, Appellant POWER
IDAHO
Cross-Respondent,
v.
The IDAHO PUBLIC UTILITIES COM for Fair
MISSION and Committee
Rates, Respondents Cross-Respondents, Coalition, Respondent
The Idaho Citizens
Cross-Appellant. COMPANY,
INTERMOUNTAIN GAS
Appellant Cross-Respondent,
The IDAHO PUBLIC UTILITIES
COMMISSION, Respondent
Cross-Respondent, Coalition, Intervenor Citizens
Cross-Appellant.
Nos. 13870.
Supreme Court of Idaho.
Dec. *2 Kline, Larry Ripley
Barton L. Rob- D. & Evans, Elam, Burke, ert Tyler, M. Jr. of Koontz, Boise, Boyd appellant-cross & for respondent Idaho Power Co. Moffatt, Thomas, T. N. Bar- Ambrose of Blanton, Boise, appellant-cross- rett & for respondent Co. Intermountain Gas Gen., E. Leroy, Atty. Lynn David H. Thomas, Gen., Sol. John J. McMahon Gen., Gilmore, Deputies Atty. Michael S. respondent cross-respondent Idaho Public Utilities Commission. d’Alene,
Peter Wagstaff, C. Coeur respondent-intervenor Fair Committee for Rates. Givens, d’Alene,
Raymond C. Coeur Coalition, respondent Idaho Citizens cross-appellant 13869 and intervenor McFADDEN, Among the five standards of 16 U.S.C. Justice. 2623(b) relating is the standard 9, 1978, On November President Carter of information advertising and transmittal signed Utility Regulatory the Public Poli- 2623(b)(3) to consumers. U.S.C. §§ seq., cies Act of 2601 et U.S.C. *3 2625(f). and hereinafter referred to as PURPA or the 2631(a) 2623(a), Act. any U.S.C. authorizes Pursuant to U.S.C. (among others) electric consumer conduct required to inter- was to participate vene and as a right matter of in whether hearings to decide any making proceeding appro- 2623(b), rate or other includ- in § standards enumerated priate regulatory proceeding relating utility advertis- relating to the standard design rates or rate which is conducted a information to con- ing and transmittal of state regulatory authority. 16 U.S.C. of all other in the consideration sumers. As 2632(a)(1) I, establishes the electric utilities’ B Title in subtitle of standards listed liability compensate such consumer inter- standard was proceeding to consider venors for certain fees and costs incurred to concerning C’s subject to subtitle prepare positions. and advocate their The per- The judicial review. intervention and provides section further that a consumer 2631 and are U.S.C. §§ tinent sections fees in civil may collect such and costs a 2632. regulatory authority action state unless the IN PRO- “INTERVENTION procedure for de- adopted a reasonable CEEDINGS. including termining the amount of and for (a) TO INTERVENE AUTHORITY of, an such fees and costs in its order award order to initi- AND PARTICIPATE. —In 2632(a)(2). proceeding. in the 16 U.S.C. § of participate in the consideration ate and brought by appeals instant established one or more of the standards Gas, Intermountain and the and concepts which subtitle B or other Coalition, cross of the Idaho Citizens pur- to the achievement contribute place at issue the Idaho Public Utilities title, Ener- Secretary poses of this [of promulgate rules any Commission’s utility, or electric gy], any affected regulations providing compen- and electric of an affected consumer electric sation to intervenors fees and participate may intervene and utility, proceedings ratemaking pro- costs incurred in PURPA right any a matter making pro- then to the regulatory appropriate ceeding or other subsequent pro- mulgated procedure in a or rate de- relating to rates proceeding ceeding. fully understand the regula- In order by a state sign which is conducted ” necessary scope of this issue it nature tory authority .... PURPA, the scheme of to first review REPRESENTA- 2632. “CONSUMER discuss the conducted then TION. challenged orders and the FOR COSTS OF (a) COMPENSATION it issued. which INTERVEN- PARTICIPATION OR means (1) If no alternative PURPA, Titles I and III by virtue of its TION. — con- of electric assuring representation seq.) required that (16 2611 et U.S.C. § sub- with in accordance undertake a sumers regulatory authorities state (b) consumer and if an electric policies af- section review of several comprehensive substantially contribut- gas natural an electric fecting regulated electric and part, of or in approval, in whole required ed to the utilities. 16 U.S.C. §§ by such consumer position advocated to consider regulatory authorities utility, and concerning such ratemaking proceeding adopt six it would forth in sub- set relating any standard 2621(d)), five (see standards 16 U.S.C. § to com- B, be liable utility shall (see title such 16 U.S.C. other unrelated standards para- (pursuant consumer pensate such 2623(b)), the standard fees, attorneys’ (2)) 2624). for reasonable graph (see 16 lifeline rates U.S.C. § fees, fees, expert fees, attorneys’ expert witness and other able witness reasonable preparing preparation costs incurred in advoca- and other reasonable costs in, position for, cy intervening proceeding participating such and such (including obtaining ju- fees and and costs proceeding (including costs of fees any pro- dicial review of obtaining determination in such review of judicial proceeding with respect position). to such ceeding).” (2) A consumer entitled to and costs requirements PUR- response paragraph (1) under may collect such fees PA, several has conducted and costs from utility by electric earlier Among generic proceedings. bringing a civil action in State court consider proceedings was competent jurisdiction, unless funding rules. promulgation of regulatory State authority . .. has adopt- Matter of entitled “In the proceeding, This *4 ed a procedure pursuant reasonable in Intervenors Compensation for Consumer which such ... No. P- Proceedings,” PURPA-Related Case (A) determines the amount of such 300-10, of inter- adoption in the culminated costs, fees and and rules in No. funding venor Order (B) includes an award of such fees and for the generally provided These rules costs in order in proceeding. the interve- compensation selected consumer (3) procedure adopted by such State have con- nors found regulatory authority . . para- . under pro- given tributed to a PURPA-related (2) graph may preliminary include a pro- determine ceeding. The would Commission ceeding require rules, could set the and eligibility under (A) as a receiving condition of compen- ceilings maximum amount an on the under sation such such con- be re- expenses intervenor’s which would that, sumer demonstrate but for the rules, Commis- coverable. Under ability award, to receive participa- such expert legal sion could limit rate of tion or intervention in proceeding with compensation to that commensurate significant financial hardship for prevailing in the like rates northwest consumer, for such compensa- kind of service. The quality (B) persons with the same or similar against each elec- tion would be assessable legal interests have a repre- common proceeding and trical affected in proceeding sentative as a condi- on total formula for assessment based receiving
tion to compensation. the rules. retail kwh was included in sales (b) ALTERNATIVE Compen- Idaho Gas had Power and Intermountain MEANS. — sation shall not be required however, under subsec- no ob- proceeding; notice of this (a) tion if the regula- State the State jections any requests nor were [or] were entered tory authority .. . provided an alter- appeals or from rehearing made taken native means providing adequate Order no. 15121.
compensation persons— Later, P-300-13, PURPA in No. Case have, (1) represent, who or an inter- advertising and concerning utility standards est— were considered. information to consumers (A) which would not otherwise be ade- non-ratemaking standards Among the five represented quately in proceeding, PURPA, two, con- those only set forth in ser- advertising cerning and termination (B) representation of which is neces- vice, as electri- gas well relate to natural sary a fair determination in the Therefore, initiation cal at the utilities. proceeding, and P-300-13, ordered Case No. (2) are, who represent advertising standard interest consideration of is, gas effectively which unable to participate electrical and natural combined for both later, proceeding intervene because utilities. Two weeks persons pay stating cannot afford reason- issued No. 15120 Order costs, and this mine actual assessment be ex- scope of Case No. P-300-13 would translating accomplished by minimum to was later panded beyond the PURPA use in the infor- therms into kwh for of whether the include consideration apply formula. consumers standard would rule’s mation to gas utilities as well as to electri- to natural appeal, relates to this Idaho Insofar as it cal. applied for and Intermountain Gas Power (ICC) regard to the award of com- peti- rehearing in The Idaho Citizens Coalition 300-13, intervening consumer pensation intervene in No. tioned to Case P— submitted, as funding. Objec- groups. In the meantime ICC applied for intervenor concerning costs required, a memorandum to such were filed tions contending in an affidavit Washington Water which included Company legal per hour for petitions part to intervene in that a rate $75 Power. Additional just representation was and reasonable. were filed Intermountain Company and the for Fair Gas Committee June, 1980,issued The Commissionin Or- (CFR). applied for Rates The CFR also which, alia, der No. 15607 inter refused funding. petitions All to inter- compensation figure and in- accept ICC’s granted. vene were appropriate rate stead determined that an per legal representation would be $50 No. 15255 for The Commission issued Order granted requests application hour. This order also ruling on the January, *5 utilities, and rehearing by the funding. for submitted for intervenor The Commission supply briefs requested those utilities to ICC and CFR were essen- determined that (1) wheth- addressing the issues representing particularly common interest in the tially adopting the Intervenor In- er No. 15121 compensation and under the Order conclusive Funding was a final and Funding be limited to Rules tervenor Rules would binding thus I.C. 61-625 and expenses they incurred if shared common order under witnesses, receiving and notice expert upon those utilities legal representation, and (2) rehearing; failing appeal to or file for other resources. The Commissionalso set a the power under general compensation Congress had the ceiling on intervenor $5,850 to au- Supremacy at and Clauses plus lodging expenses, travel and Commerce independent of funding thereby adopting a CFR estimate and re- thorize intervenor law, and, so, whether $18,000 if jecting contrary as the cost to state ICC’sestimate of or PURPA; (3) whether through of it had intervention. recognized as Supreme had Court the May, In No. 15518was issued Order that administrative of state law a matter 300-13, adopting advertising in Case No. P— rules agencies promulgate could This information to consumer rules. before appearing attorney parties fees to question addressed the of inter- order also expressly The Commission agencies. that, pursuant compensation stating venor relating questions excluded consideration adopted in Funding Rules the Intervenor any of or constitutionality of PURPA to the No. 15121 and the determinations Order provisions. made in No. ICC and CFR Order peti- ICC No. response to Order joint of costs were to file a memorandum the decision rehearing from including or rates at which tioned therein the fees to a legal services compensation for paid, that limit experts attorneys were interrog- hour, and also sent objections, per the could then file rate $50 utilities the inquiring about utilities would determine atories to the and that the Commission attorneys. of their among compensation costs rates of the assessment of allowable the questions the at objected to gas The utilities participating the electrical and natural time, compel response. moved to and ICC Recognizing that the Intervenor utilities. No. then issued Order The Commission Funding spoke only reapportion- Rules utilities, petition rehearing, granting ICC’s among ment of costs electrical parties, and re- requesting briefs from would itself deter- ruled that it Commission governing attorney fees quiring interrogatories. rules the award answers required order also staff to make actually and costs to intervenors or to prepare interrogatories awards; and send similar authority of alleged and the counsel ICC. promul- Commission under PURPA to gate actually an such rules make rehearing granted Pursuant Additionally, appeal award. the cross utilities Order No. on the presents an of the issue within the context compensate gen- intervenors adopted intervenor rules should erally granted the intervenors they be found valid: whether Commis- No. Order Commission issued Or- attorney sion limit fees as der No. 15742 affirming earlier deci- Further, it Case several did in No. sions. The Commission determined appeal. parties of the fees on seek utilities were bound the Intervenor Funding Rules in Order No. 15121 INTERMOUNTAIN APPEAL GAS since that order was final and conclusive Regarding appeal of In direct and, had, though notice was none of the Gas, agreement the court is in termountain sought utilities by rehearing ap- review with the Commission’s concession on peal. The Commission also concluded that assessing attorney it erred in fees Congress gave Commission, through participation costs ICC’s CFR’s PURPA, the authority provide for com- against Case No. P-300-13 Intermoun pensation of intervenors in PURPA-related tain Gas. The erred in this proceedings, though was lim- regard by lan virtue fact that against ited to awards electrical utilities guage of its own intervenor only. And the Commission decided that applied Thus, only to electric utilities. In had the promul- under state law to Gas, gas utility, termountain natural gate rules concerning attorney should not have been held liable for an of general means rule-making authority funding. award of intervenor provided by recognized by statute and deci- *6 sional law. POWER IDAHO APPEAL regard question proper of the (a) Permissibility of Idaho Power’s Col- compensation rate of legal repre- for ICC’s lateral Attack of Order 15121 No. sentation, the Commission determined that argues Power Commission that Idaho the prevailing rates in the northwest challenged adoption should have the like kind and quality legal sup- service funding intervenor rules in 15121 Order No. ported its decision to limit the rate to $50 from direct that order. The per hour. ap- the Commission contends that instant appeals portions from those peal Nos. from Orders 15518 and of Orders No. 15518 and 15742 impermissible to amounts an collateral at- Commission authority to award intervenor disagree. tack of Order 15121. We No. funding. appeals Intermountain Gas from these orders on similar grounds, additional- Although provides I.C. 61-625 ly noting unique position gas of natural com orders and decisions “[a]ll utilities under provisions the PURPA here con mission which have become final and involved. cross-appeals ICC the decision of collaterally,” clusive shall not be attacked Commission, embodied Orders No. proscription inapplicable its is to case. 15742, 15607 and to legal limit intervenor Sug As recognized the court in Utah-Idaho compensation per rate of $50 hour. 368, Co., ar v. Gas 100 Idaho Intermountain 374, (1979), P.2d “an
The issues on direct
administra
appeal focus on three
collaterally
may generally
interrelated areas:
the effect of
tive order
be
at
the earlier
juris
adopting
issuing agency
uncontested order
when
intervenor
tacked
lacks
”
rules;
funding
alleged
authority
diction over the matter considered . . . .
promulgate
challenges
Commission under state
law
Idaho Power
the Commission’s
rule,
general
promulgate
administrative au-
authority
intervenor
“[a]s
jurisdic-
rules,
thorities are tribunals of limited
alleged
and such
under the fore-
error
jurisdiction
dependent
tion and their
going rule
No. 15121 of
does render Order
entirely upon
reposing power
the statutes
collateral at-
Commission vulnerable to
they
upon
confer
in them and
cannot
tack.
themselves, although they may determine
(b) Authority of
to Issue
Commission
Or-
they
provisions
it.
If the
have
15121,
ders
15518 and 15742 Under State
compli-
of the statutes are not met and
Law
statutes, no
ance is not had with the
The next
to be considered is
added.)
(Emphasis
jurisdiction exists.”
authority
whether the
has
un-
Commission
P.2d at 126.
99 Idaho at
adopt
der state law to
intervenor
A review of Idaho Code Ch.
title
rules,
attorney
and make
award
fees
complete
reveals
absence of
costs,
pro-
in connection with PURPA
empower
section which would
the Commis
ceedings. The
contends that
Commission
adopt
governing
rules
com
sion to either
authority
supervise
regulate
utili-
pro
pensation for consumer intervenors
pursuant
ties
and its au-
to I.C.
61-5011
actually
ceedings related to PURPA or to
thority
adopt
practice
proce-
rules of
compensation in the form
encompass
dure
to I.C.
61-6012
It is true that
attorney
fees or costs.
promulgate
empowers the Commission to
I.C.
61-501
funding rules. We decline to follow
every public utility
supervise
regulate
construction of these statutes as advocated
things necessary to
to do all
in the state and
long line
by the
in view of the
provi
spirit and intent of the
carry out the
(1)
holding that
in this state
law, and it is
utilities
sions of
only
the Commission has
empowers
that I.C.
equally
true
(2)
legislature
conferred to it
practice
only
be awarded
where
spirit and
carry out the
to so
specifically provided
statute or contract.
public utili
provisions of the
intent of the
However,
inappropri
it would
ties law.
Because the
was created
authorize
those
ate to construe
statute,
jurisdic
the Commission has no
compensate consumer
the Commission to
tion other than that which the
specific stat
in the absence of a
intervenors
Washington
specifically granted
to it.
especially
true in
that effect. This
ute to
Environmen
Water Power Co. v. Kootenai
attorney fees
general rule that
light of the
Alliance,
875, 879, 591 P.2d
tal
in an action unless
cannot be recovered
*7
Accord,
(1979).
v. Utah
126
United States
agree
by express
or
by
authorized
statute
665,
Idaho
570
Light Company,
98
&
Fenley, 96
parties.
Kidwell v.
ment of
(1977);
Tel. Co. v. Moun
P.2d 1353
Lemhi
534,
(1975); Mecham v.
751 statutory American, Inc., Idaho and without authorization derson v. 95 Cominco Pence, (1973); narrowly providing tailored rules for an P.2d 873 Harrison v. (1957). attorney I.C. other Idaho 318 P.2d fees or costs to award of appearing proceedings 12-101. This authorization is for participants § in be- courts, not agency. disagree. the Commission. We fore the Legislature The Idaho has authorized the arose from claims Kerr and White Both clearly attorney only award of fees in a few presented unemployment compensation for 12- defined circumstances. Idaho Code §§ appeal- Department Employment, 120 and set at- 12—121 allow the courts to ed to Industrial Commission then torney damage in cer- fees civil suits under to this In both cases this appealed court. Notably, by adopting tain conditions. IRCP payment attorney fees court awarded 54(e)(1), award the court has restricted the Department regulation to a of attorney fees under those attorney providing for fees Employment brought, pursued cases frivo- defended upon ap- who for claimants are successful unreasonably lously, or without foundation. peal this court. 97 Idaho at before legislature attorney has allowed for 475; 572 P.2d at P.2d at at fees in for the very other limited contexts: However, in Kerr nor White neither wrongful dishonor of a check I.C. under Depart- did the court determine that 28-3-510A; under the Protec- Consumer Employment’s regu- ment of administrative Act, 48-608(3); by per- tion recovery I.C. § allowing attorney lation fees and costs representative sonal for services on behalf enabling legislation rested on the of that of a decedent’s estate under 15—3- I.C. § agency. did the court administrative Nor 710; responsi- I.C. 32-704 delineates the address the whether an adminis- bility spouse’s attorney fees in di- agency could own rule trative its vorce proceeding; attorney fees for unrea- regulation specific and in the absence of sonable refusal to honor claim insurance statutory authority allow for the award of 1839; under I.C. for violation of state § 41— attorney fees or other The Commis- costs. law, 30-1446; securities I.C. actions brief; sion this fact in and in admits our wages employer, due to an 45- I.C. § view this admission is the crux of the mat- 605; involving actions ter. A review of the briefs submitted in brought Compensa- under the Workmen’s both Kerr White reveal no chal- Act, See, tion I.C. 72-803. Reasonable lenge made parties was Idaho, Attorneys Fees in Law fees; attorney the reason be- award (1975). Review 279 ing attorney in those cases fees statutes, employers, not but foregoing paid,
From the is were itself, clear its own Department that the Idaho out of funds. provid has viewed, ed for the Kerr and have no attorney specifical award of Thus White bear- intends, ly presented when in this only it so it so on the issue case of when intends. The same is true for It whether costs. language
follows
fees and
to interve-
therefore
broad
costs
empower
against
utility.
I.C.
61-501 and 601
do not
nors
§§
*8
the
any compensation
Commission to award
Additionally,
it is to be noted that
the
in the form
of costs
consumer interve
involving
Depart-
statutory framework
the
nors in
proceedings.
PURPA related
Employment
ment
in Kerr and White
argues
statutory
in
significantly
the alternative
differs
from
the cases of Kerr v.
Department
involving
Commission,
framework
in
385,
Employment,
Department
In
545 P.2d
this case.
White the
(1976),
regulations
Indus- Employment
provided
White
Idaho Forest
for the
tries,
(1977),
attorney
attorneys repre-
posite because
California’s, has a broad constitutional
pay
shall
like
(employer
also
I.C. §
authority:
oth-
attorney fees in addition to
base of
reasonable
has
compensation
employer
er
where such
granted
Art. XXV
“Colorado Const.
claim, unreasonably
unreasonably contested
cer-
authority to issue
to the Commission
payment
compensation,
discontinued
neces-
public convenience and
tificates of
etc.). Thus,
awarding of attor-
the court’s
legislative function
This is a
sity ....
ney
in both Kerr and White was
Assembly re-
and, until the General
.. .
designed
statutory
result of a
framework
it,
much
has as
stricts
peculiar
for the
needs and circumstances
pri-
legislature possessed
compensation
unemployment
claimants
XXV in
adoption of Article
or to the
including
protections,
benefits.
Such
In Colorado the commission has even broad- act. While both the Commission and Idaho powers er agree constitutional than the California the federal standards set Thus, PURPA, commission. neither 2621-2627, Consumers Lob- forth in 16 U.S.C. §§ States, by supra, nor Mountain has rele- binding upon are not utility state commis- scope sions, vance to the parties of the Idaho Commis- disagree the two as to wheth- legislative grant powers. 16, U.S.C., sion’s er 2632 of Title § funding, intervenor require was intended to Finally, we consider the contention utility state commissions to award interve- that the implicitly ap Idaho funding despite nor authority lack of un- proved passage of the intervenor fund stated, der state law Simply to so act. by them, rules way non-objection argues Congress intended to I.C. 67-5217 and 5218. §§ to preempt regulation, this field of while statutory provisions These two provide a argues Idaho Power contrary. For the procedure legislative review of all rules below, reasons agree- discussed we are in promulgated by any agency. state Rele argument ment with advanced Idaho provision vant to this case is the in I.C. Power. 67—5218 that legislature] “failure [of provisions relating in PURPA report rules to in- submitted to it for re [on judicial tervention and review are set forth legislative approval shall constitute view] in 16 U.S.C. 2631-2634. the rules Section §§ as submitted.” That section fur 2632(a)(1) provides part provides that if no alter- ther that “[e]very promulgat rule native assuring representation means for ed within authority conferred law adopted electric consumers under in accordance with the 2632(b) and if an electric chapter Code, consumer Title shall be in full force rejected, until the same is amend “substantially approv- contributed to the ed or (Em al, modified legislature.” part, in whole or in position of a phasis added.) It is undisputed that proceed- advocated such consumer in a legislature took no regard action with ing concerning validity, relating such the Commission’s funding intervenor subchapter rules. standard set forth in II However, by the very terms of I.C. 67- chapter, utility of this shall be liable 5218, in order for legislature’s non-ob compensate such consumer ... jection to the rules to legislative fees, constitute attorneys’ expert reasonable witness approval them, fees, the Commission in the and other reasonable costs incurred first instance must have acting been within preparation advocacy posi- of such grant of authority in promulgating the tion.” rules. Inasmuch as we have determined 2632(a)(2) While states that an elec- section the Commission is without authority tric consumer entitled to fees and costs under state law promulgate intervenor utility by bringing collect them from the allowing costs civil action unless the state commis- fees, legislative object failure to to their making sion has promulgation is an irrelevant consideration awards; validity validity as to the of the rules. ability and hence the of an electric consum- (c) Authority of Commission to Issue Or- bring er to such an action is not before the ders Nos. 15518 and 15742 Under court and comment thereon would be Federal Law dicta.
The next issue to be considered opinion on In our language of 16 U.S.C. Congress nor, intended require; 2632 does not impor- more through its enactment of PURPA to tantly, confer any authority upon does it confer on the Commission promul Congress the Commission. has left to the gate Commission, rules and to make discretion of assuming such awards in PURPA-related preexisting authority, State legis- independent of any 2632(b), to so lature in the case of whether it
754
will
permissive
act
not.
language
being
valid, i.e.,
Such
found to be
whether
is irreconcilable
applicability
with the
the Commission may properly limit
preemption
doctrine of federal
in this in-
award as it did here.
Inasmuch as the
stance.
Commission lacked the
it as-
award,
making
sumed in
of
The construction of
2632 ad
§
may properly
limit such an
today
hered to
is consistent with the funda
is
award mooted.
mental
rule that statutes “must be con
whole,
strued as a
without separating one
Orders Nos.
and 15742 are
15518
provision from another.” First Am. Title
requests
set aside. All
fees on
Co.,
Clark,
10, 12,
Inc. v.
99 Idaho
576 P.2d
appeal
appellants
are denied.
to
Ida-
Costs
(1978);
Department
Norton v.
of Em
ho Power and Intermountain Gas.
ployment,
(1972);
94 Idaho
As mentioned the cross right to attor- only to a statute which creates a an issue within the con- presented ICC ney’s fees. text of
755 notes, regulatory authority As the State ... has majority IPUC’s statu- 61-501, tory authority procedure pursuant I.C. includes which a reasonable to which provides: (A) .. . determines the costs, (B) amount of fees and and authority. public
“Investment of —The award of such includes an fees and costs in hereby utilities vested commission is with ” 2632(a)(2)(A) . . . 16 U.S.C. its order . power jurisdiction supervise and and (B). considering courts and State federal regulate every public in the state ly right by of action are bound created and things necessary carry to do all out attorney’s fees federal law of associated spirit and intent of the right. with the federal See Maine v. act.” Thi 1, 2502, 2507, boutot, 100 S.Ct. 448 U.S. 65 I.C. provides: A federal (1980). may statute L.Ed.2d 555 hearings “Practice —Evidence.—All and right to attorney’s properly create investigations before commission or before a performed state ad for services governed by commissioner shall be in furtherance of a agency ministrative fed this act by practice and rules of Gaslight Club, York eral statute. New adopted by to be the commis- 54, 100 2024, Inc., S.Ct. Carey, v. 447 U.S. 64 sion, and in the conduct thereof neither general rule, As a (1980). 723 L.Ed.2d the commission nor commissioner rights law are by created federal enforce shall by be bound the technical rules of in the able the state courts absence of evidence.” creating juris legislation federal exclusive statutorily Since the IPUC is authorized courts, diction in the or a federal federal practice procedure, rules of legislative pattern by necessary which im jurisdiction and is “vested with plication pervasive preclude juris is so as to supervise every public regulate utili- diction in the state courts. See United 61-501, ty .,” in the state .. I.C. I would Co., States v. Bank of New York & Trust procedural hold that the adoption rules 296 U.S. 80 L.Ed. S.Ct. governing statutorily autho- (1936); Lockridge Amalgamated Ass’n of attorney’s rized fees in an otherwise valid Ry. Street Employees Elec. & Motor Coach IPUC is well within the IPUC’s America, jurisdiction Furthermore, authority. (1962). Where the federal law specifically while the majority stating is correct contemplates enforcement state adminis may the IPUC not create new agencies, principle trative the same applies. submitting for itself rules to Club, Gaslight supra. See New York Fur appropriate committee, legislative see thermore, principles comity and federal 67-5217, 5218, objection I.C. the lack of §§ ism support the efforts to implement PUC’s these rules does estab- PURPA in the most efficient and cost-ef lish that legislative mind understood the fective pre manner. “Federalism does not rules to procedural, properly promul- be cooperative clude action between the two gated in pursuit statutory of the IPUC’s sovereigns when the interests of both state authority. thereby and nation are served.” Gereau v. Finally, the it is a federal stat- fact that Henderson, (5th 1976). 526 F.2d Cir. right which attorney’s ute creates the Although agree I that the statute at issue circumstances, fees under these and not a purport require public here does not state statute, change analysis. does not to adopt govern- utilities commissions rules clearly right The statute creates attor- awards, ing attorney’s clearly fee ney’s contem- performed fees for services in state plates that the utilities proceedings. administrative commissions U.S.C. 2632(a). might promulgate procedural govern- The statute then states these fees “in any awarding specific recovered of fees in these State competent jurisdiction, court proceedings, unless the PURPA and in fact encour- them to ages by specifying do so criteria to in awarding
be used such fees.1 awarding attorney’s fees is a
Since matter, pre-
procedural unless the Court is
pared to hold that not be PURPA all, by the I
implemented IPUC at would awarding from the attor-
not bar IPUC right which
neys fees the statute creates
to. respectfully dissent.
I Clark, George W. CLARK and
Dennis Transportation,
dba Clark
Plaintiffs-Respondents, PAUL PROPERTY AND LIABIL- ST.
ITY INSURANCE dba COMPANIES St. Compa- Fire
Paul and Marine Insurance Insurance, Inc.,
ny; and an Idaho Taber
corporation, Defendants-Appellants.
No. 13582.
Supreme Court of Idaho.
Dec. 1981. Alexander,
J. Walter Sinclair of Benoit & Falls, defendants-appellants. Twin Nunges- Hepworth Hepworth, John C. Felton, Falls, plaintiffs-re- Twin ter & spondents. Obviously, expense ney’s great for that To intervenor’s work. force deal of time separate bring parties court is be saved if the to duplicative, action in state could for all involved IPUC, unnecessary. to which work is wasteful and all of the intervenor’s presented, also awards attor- evaluates and