Heber Light v. UT. Pub. Serv. Comm'n

2010 UT 27
231 P.3d 1203
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Heber Light & Power Company, 	Nos. 20090053
Petitioner, 	20090385
v.
Utah Public Service Commission
and Rocky Mountain Power 	F I L E D
Company,
Respondents. 	April 30, 2010
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Original Proceeding in this Court
Attorneys: 	Joseph T. Dunbeck, Jr., Joseph A. Skinner, Heber
City, Gary A. Dodge, Salt Lake City, for petitioner
Sander J. Mooy, Salt Lake City, for respondent Utah
Public Service Commission
Mark C. Moench, R. Jeff Richards, Gregory B. Monson,
Scott S. Newman, Salt Lake City, for respondent Rocky
Mountain Power
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PARRISH, Justice:
INTRODUCTION
¶1 	Rocky Mountain Power (“Rocky Mountain”) initiated this
action by filing a complaint with the Public Service Commission
(“Commission”). 	Rocky Mountain alleged that Heber Light & Power
(“Heber Light”) was providing electrical service in the Heber
Valley in violation of the Certificate of Convenience and
Necessity that the Commission issued to Rocky Mountain, which
granted Rocky Mountain the exclusive right to provide electricity
in the area. 	In an effort to resolve the dispute, the parties
requested several stays from the Commission, but were unable to
come to a resolution. 	Heber Light then filed a motion to dismiss
claiming that the Commission lacked subject matter jurisdiction
to hear the claim because Heber Light was not a public utility.
The Commission denied the motion to dismiss and entered a

No. 20090053, 20090385 	2
scheduling order indicating that it had the authority to
determine the extent to which Heber Light could continue to
provide power to customers outside its municipal boundaries and
the extent of Commission jurisdiction. 	Heber Light filed an
Application for Agency Review of the Order, which was rejected.
¶2 	Heber Light then filed a petition for review in this
court or, in the alternative, a petition for extraordinary
relief. 	We deny the petition for review because the Commission’s
order is not final agency action. 	But we grant the petition for
extraordinary relief and reverse the Commission’s order.
BACKGROUND
¶3 	Heber Light is an energy services interlocal entity
comprised of several municipalities organized under the Utah
Interlocal Cooperation Act. 	Utah Code Ann. § 11-13-101 to -314
(2007). 	The municipalities, which include Heber City, Midway
City, and Charleston Town, have been in the business of providing
electricity in the Heber Valley for nearly a hundred years.
Entities organized under the Interlocal Cooperation Act are
considered governmental entities and therefore are not generally
subject to Commission jurisdiction. 	See Utah Const. art. VI,
§ 28 (“The Legislature shall not delegate to any special
commission . . . any power to make, supervise or interfere with
any municipal improvement, money, property or effects . . . or to
perform any municipal functions.”); Utah Code Ann. § 11-13-203(1)
(2007) (“An interlocal entity is . . . (c) a political
subdivision of the state”). 	There are, however, statutory
restrictions on the power of these entities. 	Under Utah law,
municipalities can sell only surplus electricity to customers
outside of their municipal boundaries. 	See Utah Code Ann. § 10-
8-14(1)(d) (2007). 	Heber Light admitted in its answer to Rocky
Mountain’s complaint that it regularly provides power to
customers outside of its municipal boundaries.
¶4 	Rocky Mountain is a public utility company that is
subject to the jurisdiction and control of the Commission. 	The
Commission granted Rocky Mountain a Certificate of Public
Convenience and Necessity for the Heber Valley area, which gives
Rocky Mountain the exclusive right to provide electricity to
customers who are part of unincorporated Wasatch County. 	This
creates an overlap between those customers serviced by Heber
Light outside its municipal boundaries and those within Rocky
Mountain’s certificated area. 	Rocky Mountain argues that Heber
Light is subject to Commission jurisdiction when it acts beyond
its municipal authority and interferes with Rocky Mountain’s

3 	No. 20090053, 20090385
exclusive ability to provide electrical service in unincorporated
Wasatch County.
JURISDICTION
¶5 	The Utah Supreme Court has appellate jurisdiction only
over final agency action. 	See Utah Code Ann. § 78A-3-102(3)(e)
(2008). 	The court may also, in its discretion, grant
extraordinary relief when a party is without a plain, speedy, and
adequate remedy in any other forum. 	See id. § 78A-3-102(2); Utah
R. of Civ. P. 65B(a). 	In this case, the Commission’s order does
not qualify as a final agency action and we therefore lack
jurisdiction to hear the appeal. 	But we exercise our discretion
to grant Heber Light an extraordinary writ to determine whether
the Commission can continue to adjudicate Rocky Mountain’s
complaint against Heber Light.
STANDARD OF REVIEW
¶6 	The question of Commission jurisdiction turns on
statutory interpretation and therefore presents a question of law
that we review for correctness. 	See ExxonMobil Corp. v. Utah
State Tax Comm’n, 2003 UT 53, ¶ 10, 86 P.3d 706 (granting no
deference for agency interpretation of oil and gas valuation
methods); see also Indus. Commc’ns, Inc. v. Utah State Tax
Comm’n, 2000 UT 78, ¶ 11, 12 P.3d 87 (applying a correction of
error standard to the Tax Commission’s interpretation of Utah
Code Ann. § 59-12-103 and giving no deference to the agency). 	As
such, we accord no deference to the Commission’s interpretation
of the statute.
ANALYSIS
I. THE COMMISSION ORDER DENYING HEBER LIGHT’S MOTION TO DISMISS
IS NOT FINAL AGENCY ACTION
¶7 	The Utah Supreme Court has jurisdiction over “final
orders and decrees in formal adjudicative proceedings originating
with . . . the Public Service Commission.” 	Utah Code Ann. § 78A-
3-102(3)(e)(i) (2008). 	We have articulated a three-part test to
determine whether an agency decision qualifies as final agency
action for purposes of appellate jurisdiction:
(1) Has administrative decisionmaking reached a
stage where judicial review will not disrupt the
orderly process of adjudication?;

No. 20090053, 20090385 	4
(2) Have rights or obligations been determined or
will legal consequences flow from the agency
action?; and
(3) Is the agency action, in whole or in part, not
preliminary, preparatory, procedural, or
intermediate with regard to subsequent agency
action?
Union Pac. R.R. Co. v. Utah State Tax Comm’n, 2000 UT 40, ¶ 16,
999 P.2d 17. 	All three questions must be answered in the
affirmative for an order to qualify as final agency action. 	Id.
The Commission’s order does not qualify.
A. 	The Orderly Process of Adjudication
¶8 	The Commission’s order did not constitute an end to the
process of adjudication. 	Rather, it was simply a denial of Heber
Light’s motion to dismiss. 	In Ameritemps, Inc. v. Utah Labor
Commission, the Utah Court of Appeals held that the agency’s
order was final because “the [Board] reached the end of its
decision making process on the issue of permanent total
disability.” 	2005 UT App 491, ¶ 20, 128 P.3d 31, aff’d, 2007 UT
8, 152 P.3d 298 (alteration in original)(internal quotation marks
omitted). 	Furthermore, the Board’s order contained a “Notice of
Appeal Rights” section specifying the party’s appeal options,
indicating that the Board’s review was complete. 	Id.
¶9 	Unlike the order at issue in Ameritemps, the
Commission’s order in this matter denied only the pending motion
to dismiss. 	It did not decide whether or not Heber Light was in
fact exceeding its municipal powers and infringing on Rocky
Mountain’s certificated area, but rather opined that the
Commission had the authority to complete its administrative
process and make such a determination. 	Far from ending the
administrative process, the order signaled the beginning of the
process, a process that would be disrupted were Heber Light
allowed to appeal.
B. 	Rights or Obligations Determined
¶10 	The Commission’s order did not confer any rights or
obligations upon the parties. 	Unlike the situation in
Ameritemps, where the Board awarded permanent total disability
compensation payments after a finding of total disability, 2005
UT App 491, ¶ 20, the Commission in this case did not reach any
final determination regarding Heber Light’s authority to provide
power. 	The order stated, “[t]o the extent [Heber Light] serves

5 	No. 20090053, 20090385
those extra-territorial customers, and to the extent it is acting
just like any other public utility, it seems the legislature
intended it would be considered a corporation, association, etc.
and would be subject to commission jurisdiction as would any
other public utility.” 	Because the Commission’s order did not
finally determine whether Heber Light is in fact operating in a
way that would subject it to Commission regulation, the order did
not determine Heber Light’s rights and obligations.
C. 	Preliminary, Preparatory, Procedural, or Intermediate
¶11 	The Commission’s order is clearly a preliminary ruling.
Indeed the Commission was still in the process of adjudicating
the dispute after the order was issued. 	In Barker v. Utah Public
Service Commission, we identified three prior Utah cases
evaluating finality and
“found no final order in the following
circumstances: 	(1) a remand for further
proceedings, Sloan v. Board of Review, 781
P.2d 463, 464 (Utah Ct. App. 1989); (2) an
order converting informal proceedings into
formal ones, Merit Elec. & Instrumentation v.
Department of Commerce, 902 P.2d 151, 153
(Utah Ct. App. 1995); and (3) a denial of a
motion to dismiss, Barney v. Division of
Occupational & Professional Licensing, 828
P.2d 542, 544 (Utah Ct.App. 1992).”
970 P.2d 702, 706 (Utah 1998).
¶12 	The Barney case is particularly instructive. 	In
Barney, the Division of Occupational and Professional Licensing
filed a petition alleging that the petitioner in that case was
guilty of unprofessional conduct. 	828 P.2d at 543. 	The
petitioner filed with the Division a motion to dismiss for lack
of subject matter jurisdiction based on double jeopardy grounds
since the petitioner had previously been acquitted of the abuse
charges that served as the basis of the unprofessional conduct
complaint. 	Id. 	His motion was denied. 	Id. 	Despite the serious
nature of his double jeopardy motion, the court of appeals
determined that the denial of his motion to dismiss did not
constitute final agency action and was therefore not subject to
appellate review. 	Id. 	Like the order denying the motion to
dismiss in Barney, the Commission’s order denying Heber Light’s
motion to dismiss is only preliminary and is therefore not
subject to appellate review.

1 A writ of prohibition was one of the many common-law writs
that we now classify as extraordinary relief. 	See Union Portland
Cement Co. v. Pub. Util. Comm’n of Utah, 189 P. 593, 596 (Utah
1920) (internal quotation marks omitted) (The court described the
writ as a “process by which a superior court prevents an inferior
court or tribunal from usurping or exercising a jurisdiction with
which it has not been vested by law. 	It is an extraordinary
writ, because it only issues when the party seeking it is without
other adequate means of redress for the wrong about to be
inflicted by the act of the inferior tribunal.”) 	The standard is
the same for both a writ of prohibition and extraordinary relief.
Where a petitioner cannot obtain a “plain, speedy, and adequate
remedy” a writ is available at the discretion of the court. 	Id.
(The writ of prohibition was limited by Comp. Laws Utah 1917,
Section 7408: 	“It may be issued by the Supreme Court to an
(continued...)
No. 20090053, 20090385 	6
¶13 	Because Heber Light has not met its burden of showing
that the Commission order constitutes a final appealable agency
action, we now consider its request for extraordinary relief.
II. 	HEBER LIGHT CANNOT OBTAIN PLAIN, SPEEDY, AND ADEQUATE RELIEF
FROM THE COMMISSION BECAUSE THE COMMISSION LACKS REGULATORY
JURISDICTION OVER HEBER LIGHT
¶14 	This court, within its discretion, may grant relief to
a petitioner under Utah Code section 78A-3-102(2) by issuing an
extraordinary writ. 	Rule 65B(a) of the Utah Rules of Civil
Procedure states that the court may issue an extraordinary writ
if there is “no other plain, speedy[,] and adequate remedy”
available. 	In some situations, we have held that the process of
exhausting administrative remedies and then appealing from a
final agency action does not constitute plain, speedy, or
adequate relief--particularly in those situations where an
administrative agency is acting outside of its legislative
jurisdiction. 	See Aldolph Coors Co. v. Liquor Control Comm’n,
105 P.2d 181, 183 (Utah 1940). 	In other words, requiring that a
party participate in an administrative process in front of an
agency lacking jurisdiction constitutes neither plain, speedy,
nor adequate relief.
¶15 	Such was the case in Aldolph Coors Co., where the
Liquor Control Commission was enforcing a regulation that
prohibited the Coors brewing company from selling 8-ounce bottles
of beer. 	Id. 	The regulation was based on the Commission’s
interpretation of a statute that granted it the authority to
forbid the selling of bottles in excess of 64 ounces. 	Id. at
182. 	Coors petitioned for a writ of prohibition 1 to prevent the

1 (...continued)
inferior tribunal, or to a corporation, board or person, in all
cases where there is not a plain, speedy, and adequate remedy in
the ordinary course of law.”).
7 	No. 20090053, 20090385
Commission from enforcing the regulation. 	Id. 	This court held
that the regulation was an invalid interpretation of the statute
and therefore the Commission lacked jurisdiction to prohibit the
sale of 8-ounce bottles. 	Id. at 183. 	To deny the writ and force
Coors to carry out the administrative appeal process before the
Commission would “subject it to criminal prosecution throughout
the state, subject it to fines, if convicted, and to a possible
forfeiture of its licence, if it fail[ed] to pay the fines.” 	Id.
We concluded that to “force the case through the ordinary
channels of procedure would be an injustice.” 	Id. 	We therefore
granted the writ of prohibition and allowed the brewery to
continue to sell 8-ounce bottles. 	Id.
¶16 	Rocky Mountain argues that Heber Light has an adequate
remedy in allowing the Commission to conclude its administrative
process and then appealing any final adverse order. 	We disagree.
Subjecting Heber Light to the administrative process when the
agency conducting that process lacks jurisdiction is neither
plain, speedy, nor adequate. 	As was the case with the Liquor
Control Commission’s interpretation of the statute in Aldolph
Coors Co., the Public Service Commission’s interpretation is
invalid. 	As we discuss below, Utah Code section 54-4-1 does not
give the Commission jurisdiction to regulate Heber Light when it
sells power outside of municipal boundaries. 	We therefore see no
reason to require that Heber Light be forced to continue with the
administrative process.
III. 	THE COMMISSION MAY NOT ASSERT REGULATORY JURISDICTION
WITHOUT AN EXPRESS STATUTORY GRANT OF AUTHORITY.
¶17 	“‘It is well established that the Commission has no
inherent regulatory powers other than those expressly granted or
clearly implied by statute.’” 	Hi-Country Estates Homeowners
Ass’n v. Bagley & Co., 901 P.2d 1017, 1021 (Utah 1995) (quoting
Mountain States Tel. & Tel. Co. v. Pub. Serv. Comm’n, 754 P.2d
928, 930 (Utah 1988)). 	“When a ‘specific power is conferred by
statute upon a . . . commission with limited powers, the powers
are limited to such as are specifically mentioned.’” 	Id.
(quoting Union Pac. R.R. v. Pub. Serv. Comm’n, 134 P.2d 469, 474
(Utah 1943). 	“Accordingly, to ensure that the administrative
powers of the [Commission] are not overextended, any reasonable
doubt of the existence of any power must be resolved against the
exercise thereof.” 	Id. (internal quotation marks omitted).

2 Although this case was initiated in 2008, we cite to the
2009 Supplement to the Utah Code because, while the numbering of
the relevant statutes has been updated, there are no material
changes to the substance of the relevant statutes between the
2008 and 2009 Supplements.
No. 20090053, 20090385 	8
¶18 	In this case, the Commission relies on a number of
statutes and cases to argue that a gap exists in the regulatory
scheme, which requires that the Commission have the ability to
regulate entities like Heber Light when they provide power
outside municipal boundaries. 	Whether or not such a gap exists,
it is nevertheless improper for the Commission to regulate Heber
Light absent clear authority from the legislature. 	And the
legislature has failed to confer such authority. 	Under
applicable statutes, the Commission may only regulate “every
public utility” and Heber Light does not fit within that
definition. 	See Utah Code Ann. § 54-4-1 (2000).
¶19 	Under applicable rules of statutory construction, “we
look first to the statute’s plain language to determine its
meaning.” 	Sill v. Hart, 2007 UT 45, ¶ 7, 162 P.3d 1099 (internal
quotations marks omitted). 	We also “interpret [the statute’s]
provisions in harmony with other provisions in the same statute
and with other statutes under the same and related chapters. 	Id.
(quoting State v. Schofield, 2002 UT 132, ¶ 8, 63 P.3d 667).
“[I]f we find ambiguity in the statute’s language, we look to
legislative history and other policy considerations for
guidance.” 	Summit Water Distrib. Co. v. Summit County, 2005 UT
73, ¶ 17, 123 P.3d 437 (internal quotation marks omitted).
¶20 	Under the plain language of the statute, the Commission
has the authority to regulate “public utilities.” 	Utah Code Ann.
§ 54-4-1 (2000). 	The Utah Code includes an “electrical
corporation” within the definition of a “public utility.” 	Id.
§ 54-2-1(16)(a) (Supp. 2009). 2 	An “electrical corporation” is
further defined as, “every corporation, cooperative association,
and person . . . .” 	Id. § 54-2-1(7) (Supp 2009). 	These three
subgroups are further defined within statutes and case law. 	We
conclude that Heber Light does not fit the definition of any
group subject to Commission regulation.
¶21 	A “corporation,” as it is defined in the public utility
code, expressly excludes “towns, cities, counties, conservancy
districts, improvement districts, or other governmental units
created or organized under any general or special law of [Utah].”
Id. § 54-2-1(5)(b) (Supp. 2009). 	Because Heber Light is a

9 	No. 20090053, 20090385
governmental unit organized under the Interlocal Cooperation Act,
it cannot be a corporation. 	See id. §§ 11-13-101 to -314 (2007).
¶22 	A “cooperative association” is a non-profit, member-
owned organization that only serves its members. 	See Cottonwood
Mall Shopping Ctr. Inc. v. Pub. Serv. Comm’n, 558 P.2d 1331, 1332
(Utah 1977). 	It is generally formed by a group of rural citizens
who are unable to obtain electrical service under any other
arrangement. 	See id. 	Because Heber Light is a governmental
entity organized under the Interlocal Cooperation Act, it is not
owned by individual members and cannot be a “cooperative
association.”
¶23 	Finally, “person” as used in the public utility code is
defined as “all individuals, corporations, partnerships,
associations, trusts, and companies.” 	Utah Code Ann. § 54-2-2
(2000). 	“Governmental entities” were at one time included within
the definition of a person. 	See id. § 54-2-1(18) (1986) (In
1986, the utility code defined “person” as “all individuals,
government entities, corporations, partnerships, associations,
trusts, and companies and their lessees, trustees, and
receivers.” (emphasis added)). 	However, in 1989 the legislature
amended the statute and deleted “governmental entities” from the
definition of a “person.” 	See Public Utilities Definitions, ch
20, § 2, 1989 Utah Laws 36. 	Thus, Heber Light cannot qualify as
a “person” subject to Commission regulation. 	This conclusion is
buttressed by the transcripts from the 1989 hearing on the
amendment, which demonstrate that the legislative intent was to
prevent the Commission from exercising general jurisdiction over
governmental entities by excluding them from the definition of a
person. 	See Transcript of House Floor Debate on S.B. 43 (Jan.
28, 1989) (Statement of Sen. Moody).
¶24 	In summary, Heber Light is simply not subject to
regulation by the Commission. 	Even though the Commission is only
asserting limited jurisdiction, authority to regulate
governmental entities in any respect cannot be read into the
statute. 	Rather, the statutory language and the legislative
history show an intention to exclude governmental entities from
Commission jurisdiction.
¶25 	Lacking legislative authorization to regulate
governmental units when they provide power outside their
municipal boundaries, the Commission may not continue to
adjudicate the case initiated by Rocky Mountain. 	Heber Light’s
motion to dismiss should have been granted because the Commission
lacks authority to hear the dispute. 	We therefore exercise our

No. 20090053, 20090385 	10
discretion to grant the extraordinary writ and reverse the
Commission’s order.
¶26 	If, in fact, Heber Light may be acting beyond its
statutory authority by providing power to customers outside of
its municipal boundaries, our holding today would not excuse that
fact. 	Just as the Commission is confined to the authority
granted to it by statute, so too are municipalities bound by
statute. 	See Utah Code Ann. § 10-8-14 (2007) (describing the
powers of a city to distribute water, sewer, gas, electricity,
and public transportation). 	Municipalities may distribute
electricity to customers within their boundaries, but for those
customers beyond the municipal borders, a municipality may only
distribute surplus power. 	Id. § 10-8-14(1)(d) (2007). 	If Heber
Light has been providing power to customers in unincorporated
Wasatch County, those customers would have no protection from
rate hikes or unfair treatment and no vote on municipal matters.
The fact that these customers have no recourse with the
Commission may be troubling. 	However, until the Utah State
Legislature confers authority on the Commission to regulate
municipalities acting beyond their statutory authority, the
Commission may not regulate Heber Light and the proper forum for
Rocky Mountain’s complaint is in the district court.
CONCLUSION
¶27 	We lack jurisdiction to review the Commission’s order
under the Utah Administrative Procedures Act because the order is
not final agency action. 	However, we choose to exercise our
discretion to issue an extraordinary writ and reach the merits of
Heber Light’s claim. 	The Commission may act only pursuant to
express power delegated from the legislature and the legislature
has not vested authority in the Commission to regulate
municipalities such as Heber Light, even if they are selling
nonsurplus power beyond their municipal boundaries. 	As a result,
we reverse the Commission’s order denying the motion to dismiss.
The proper forum for resolving Rocky Mountain’s claim that Heber
Light has exceeded its statutory authority is in the district
court.
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¶28 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Wilkins, and Justice Nehring concur in Justice Parrish’s
opinion.
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