Uhlig v. Public Service Commission

2014 UT App 232
_________________________________________________________

THE UTAH COURT OF APPEALS

WERNER UHLIG,
Petitioner,
v.
PUBLIC SERVICE COMMISSION,
Respondent.

HI-COUNTRY ESTATES HOMEOWNERS ASSOCIATION,
Intervenor.

Per Curiam Decision
No. 20140635-CA
Filed October 2, 2014

Original Proceeding in this Court

Werner Uhlig, Petitioner Pro Se

Melanie A. Reif, Attorney for Respondent Public
Service Commission

J. Craig Smith and Adam S. Long, Attorneys for
Intervenor Hi-Country Estates Homeowners
Association

Before JUDGES GREGORY K. ORME, MICHELE M. CHRISTIANSEN,
and SENIOR JUDGE RUSSELL W. BENCH.1

PER CURIAM:

¶1 Petitioner Werner Uhlig seeks judicial review of a decision
of the Public Service Commission (the Commission) determining
that he lacked standing to challenge a May 2014 Report and Order

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah R. Jud. Admin.
11-201(6).
Uhlig v. PSC

approving proposed water service schedules and rates on an
application by Hi-Country Estates Homeowners Association (Hi-
Country Estates). This case is before the court on the Commission’s
motion for summary disposition and on Hi-Country Estates’s
motion to intervene. We grant Hi-Country Estates’s motion to
intervene in the case before this court, affirm the Commission’s
decision on standing, and dismiss the petition for review based
upon Uhlig’s lack of standing to seek judicial review.

¶2 In July 2013, Hi-Country Estates filed its application with the
Commission. After appropriate notice, the Commission issued a
scheduling order on September 24, 2013, setting a deadline of
December 27, 2013, for individuals to request to intervene as
parties. Uhlig did not request intervention, and the deadline for
doing so passed. The Commission held evidentiary hearings at
which the parties—including two intervenors—participated. The
Commission held an additional hearing to take statements from
members of the public. Uhlig provided testimony at that hearing,
objecting to the proposed standby fee rate increase from his
position as a resident of Hi-Country Estates and as a private well
owner who is not connected to its water system. On May 5, 2014,
the Commission issued its Report and Order approving the
proposed rates. The order advised the parties of their rights to seek
agency review or rehearing and to petition for judicial review.

¶3 Although he had not intervened as a party, Uhlig filed a
request for agency review or rehearing. In the Report and Order
Denying Mr. Uhlig’s Request for Review or Rehearing dated June
19, 2014, the Commission ruled that Uhlig lacked standing because
a request for review or rehearing of a Commission action can be
filed only by a party to the agency proceeding. Because Uhlig
neither requested nor was granted intervention, the Commission
ruled that he lacked standing to challenge the Commission’s May
2014 Report and Order, and dismissed his request for agency
review. Uhlig filed a petition for judicial review of the order
dismissing his request for review in the agency. The Commission

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Uhlig v. PSC

now moves for summary disposition. Intervenor Hi-Country
Estates joins that motion.

¶4 The Utah Supreme Court considered a similar case in Ball v.
Public Service Commission, 2007 UT 79, 175 P.3d 545. The petitioners
in Ball moved to intervene in the case before the Commission. The
supreme court dismissed the petition for judicial review based on
lack of standing after affirming the Commission’s order denying
intervention. Id. ¶ 27. The supreme court stated that standing
before the supreme court was dependent on the outcome of its
review of the Commission’s order denying the request to intervene.
Id. ¶ 29. After determining that the Commission properly denied
the request to intervene, the supreme court held that the petitioners
also lacked standing. Id. ¶¶ 29-30, 62. Accordingly, we first
consider whether the Commission properly determined that Uhlig
lacked standing to seek agency review in the formal adjudicative
proceedings.

¶5 In ruling that Uhlig was not a party to the proceedings
before it, the Commission noted that under provisions of the
Administrative Procedures Act (UAPA), if permitted by statute or
an agency’s rules, “parties to any adjudicative proceeding [may]
seek review of an order by the agency or by a superior agency.”
Utah Code Ann. § 63G-4-301(1)(a) (LexisNexis 2011). “‘Party’
means the agency or other person commencing an adjudicative
proceeding, all respondents, all persons permitted by the presiding
officer to intervene in the proceeding, and all persons authorized
by statute or agency rule to participate as parties in an adjudicative
proceeding.” Id. § 63G-4-103(1)(f). It is undisputed that Uhlig did
not seek to intervene in the proceedings before the Commission,
and the time to do so under the scheduling order expired. Uhlig
claims that the Commission did not provide adequate information
explaining how to move to intervene. This claim lacks merit.
Because Uhlig neither sought nor obtained permission to intervene
as a party in the agency proceedings, the Commission properly
ruled that Uhlig lacked standing to seek review or rehearing in the
agency.

20140635-CA 3 2014 UT App 232
Uhlig v. PSC

¶6 Generally, an individual lacks standing to seek judicial
review when the party was not a party in the agency proceeding.
See Ball, 2007 UT 79, ¶ 44. After affirming the Commission’s
decision denying a motion to intervene, the Utah Supreme Court
in Ball then considered whether any of the petitioners had standing
granted by statute. Utah Code section 54-7-15 grants standing to
seek judicial review of Commission decisions regarding public
utilities to “any party, stockholder, bondholder, or other person
pecuniarily interested in the public utility who is dissatisfied with
an order of the commission.” Id. ¶ 46 (citation and internal
quotation marks omitted). UAPA requires an individual seeking
judicial review of an agency decision to exhaust all administrative
remedies including applying for a rehearing. Id. ¶ 47. UAPA also
requires that an individual seeking judicial review must have been
“substantially prejudiced” by the agency decision. Id. ¶ 48. The
supreme court stated, “In sum, an individual may have appellate
standing to seek judicial review of an agency decision if he or she
has exhausted all administrative remedies and qualifies as an
‘aggrieved’ or ‘substantially prejudiced’ ‘party, stockholder,
bondholder, or other person pecuniarily interested in the public
utility.’” Id. ¶ 49. In Ball, the supreme court considered whether the
petitioners who qualified as “ratepayers” had appellate standing
because they were “pecuniarily interested in the public utility.” Id.
¶ 51. The supreme court concluded that although ratepayers are
aggrieved by the increase in their bills, “they lack appellate
standing because they have no pecuniary interest in the public
utility and therefore do not fall within the classes of person to
whom standing is granted.” Id. ¶ 57. It follows that Uhlig is not
within the class of persons authorized by statute to have standing
to seek judicial review.

¶7 Based upon the foregoing, we affirm the Commission’s
decision that Uhlig lacked standing to participate in the agency
proceedings, and we dismiss the petition for review based upon his
lack of standing in this proceeding for judicial review.

20140635-CA 4 2014 UT App 232