Ball v. Public Service Commission

2007 UT 79
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
In the Matter of the Application of 	Nos. 20060279
Questar Gas Company to Adjust Rates 	20060280
for Natural Gas Service in Utah.
Roger Ball, Claire Geddes, Bud
Allen, Madonna Allen, Sue
Ashdown, Carol Bee, et al.,
Petitioners,
v.
Public Service Commission, Questar
Gas Company, the Committee for
Consumer Services, and the Division 	F I L E D
of Public Utilities,
Respondents. 	October 12, 2007
---
Original Proceeding in this Court
Attorneys: 	Janet I. Jenson, Salt Lake City, for petitioners
Mark L. Shurtleff, Att’y Gen., Michael L. Ginsberg,
Patricia E. Schmid, Reed T. Warnick, Paul H. Proctor,
Asst. Att’ys Gen., Sander J. Mooy, Salt Lake City,
for Public Service Commission, Committee for Consumer
Services, Division of Public Utilities
C. Scott Brown, Colleen Larkin Bell, Gregory B.
Monson, Richard R. Hall, Salt Lake City, for Questar
Gas Co.
---
DURRANT, Justice:
INTRODUCTION
¶1 	The Petitioners, including Roger Ball and Claire
Geddes, seek review of two orders entered by the Utah Public
Service Commission (the “Commission”). 	The first order denied
Ball and Geddes’s request to intervene in the Commission’s
proceedings involving Questar Gas Company’s (“Questar”)

1 See Comm. of Consumer Servs. v. Pub. Serv. Comm’n
(Questar II), 2003 UT 29, 75 P.3d 481; Questar Gas Co. v. Utah
Pub. Serv. Comm’n (Questar I), 2001 UT 93, 34 P.3d 218.
2 See Questar II, 2003 UT 29, ¶ 2.
3 Id.
4 Id.
Nos. 20060279, 20060280 	2
application to recover some of the costs of operating a carbon
dioxide (“CO 2”) processing plant. 	The second order approved a
Gas Management Cost Stipulation (the “Stipulation”) entered into
by Questar, the Committee for Consumer Services (“Consumer
Services”), and the Division of Public Utilities (the “Division”)
that allows partial recovery for a limited time of Questar’s CO 2
processing costs. 	We now affirm the Commission’s first order and
dismiss the petition for review as to the second order.
BACKGROUND
¶2 	This is the third time we have addressed issues
relating to the recovery of gas management and CO 2 processing
costs incurred by Questar and its affiliates. 1 	We quote
liberally from these previous cases in reciting the facts
relevant to this case.
I. 	QUESTAR I
¶3 	In 1998, Questar, a regulated public utility, entered
into a contract with its unregulated affiliate, Questar Pipeline,
to construct a processing plant that would reduce the CO 2 in coal
seam gas, otherwise known as coal bed methane (“CBM”). 2 	Questar
Pipeline was transporting CBM in steadily increasing quantities
and needed the CO 2 processing plant to address safety risks to
Questar customers. 3 	CBM has a low heat content that cannot be
used safely in most homes unless special adjustments are made to
appliances or CO 2 is first removed from the gas at a processing
facility.
¶4 	On November 25, 1998, Questar submitted an application
to the Commission for approval of the contract and requested
authorization to transfer the costs of constructing and operating
the CO 2 plant directly to ratepayers. 4 	In its December 3, 1999
order, the Commission denied Questar’s request on the basis that
these costs were not the kind of expenses allowed under Utah Code
section 54-7-12(3)(d)(i), which is known as the pass-through

5 Id.
6 Id.
7 Id.
8 Questar I, 2001 UT 93, ¶ 19.
9 Questar II, 2003 UT 29, ¶ 3.
10 Id. ¶ 3 n.4 (alteration in original).
11 Questar I, 2001 UT 93, ¶ 20.
3 	Nos. 20060279, 20060280
statute. 5 	The Commission also noted that Questar bears the
burden of establishing the prudence of its contract with Questar
Pipeline because of their affiliate relationship. 6 	The
Commission did not address whether Questar’s decision to enter
into the contract with Questar Pipeline was prudent; rather, the
Commission determined that, even assuming the prudence of the
contract and the reasonableness of its terms, Questar had failed
to present substantial evidence that the resulting rates would be
just and reasonable. 7
¶5 	In Questar Gas Company v. Public Service Commission
(Questar I), we set aside the Commission’s December 3, 1999
order, holding that Questar’s ability to recover costs was not
limited to the pass-through statute. 8 	We based our decision on
the Commission’s own prior practice, noting that the Commission,
when reviewing past requests for cost recovery, determined
whether the resulting rates were “just, reasonable and cost
justified” and whether their approval was “in the public
interest.” 9 	Also, based on the Commission’s finding “that it was
impossible to make a [prudence] determination because the record
was insufficient and could not be created,” we limited our
holding to the question of the procedure Questar should have
followed to recover processing costs incurred between June 1999
and August 2000. 10 	We remanded the case to the Commission for
further consideration in accordance with the appropriate cost
recovery procedure. 11
II. 	QUESTAR II
¶6 	On December 17, 1999, over a year before we issued
Questar I, Questar filed a general rate proceeding with the
Commission, which included a request under Utah Code section
54-7-12(3)(a) for interim rate relief of over $7 million annually

12 Questar II, 2003 UT 29, ¶ 4.
13 Id.
14 Id.
15 Id.
16 Id.
17 Id.
18 Id.
19 Id. ¶ 5.
20 Id.
21 Id. ¶ 12.
Nos. 20060279, 20060280 	4
to cover the CO 2 plant operating costs. 12 	Questar did not,
however, seek approval of its contract with Questar Pipeline. 13
The Commission held a hearing to consider this request for
interim rate relief and granted the request on January 25,
2000. 14 	Consumer Services petitioned the Commission for
rehearing regarding the interim rate increase, arguing that the
increase was not legally proper, factually supported, or in the
public interest. 15 	By declining to respond to Consumer Services’
request, the Commission affirmed its January 25 order. 16
¶7 	On June 2, 2000, Questar and the Division filed a
stipulation that resolved between them the issues of cost
recovery and ratemaking treatment of gas processing costs and
provided that annual CO 2 plant costs in the amount of $5 million
should be passed on to ratepayers. 17 	Although Consumer Services
objected to the cost recovery stipulation, the Commission
approved the stipulation on August 11, 2000. 18
¶8 	In approving Questar’s cost recovery, the Commission
determined that it need not rule on whether Questar’s decision to
contract with its affiliate Questar Pipeline was prudent. 19 	The
Commission acknowledged that Questar’s prudence in this matter
remained “the most troubling question” and that the burden to
demonstrate prudence was on Questar. 20 	But the Commission relied
on a “safety exception” to excuse Questar from its burden to
demonstrate the prudence of its contract and CO 2 processing
costs. 21 	The Commission determined that “once coal seam gas
became a persistent threat to the [heat level] of [Questar’s] gas

22 Id. ¶ 5.
23 Id.
24 Id.
25 Id. ¶ 13.
26 Id. ¶ 15.
5 	Nos. 20060279, 20060280
supply, customer safety was threatened and an effective response
was mandatory.” 22 	The Commission reasoned that it could decide
the legitimacy of recovering CO 2 plant processing costs from
ratepayers without determining whether the underlying affiliate
contract was prudent because Questar had not specifically applied
for a decision on the affiliate issue. 23 	The Commission then
accepted the argument that $5 million per year, or 68 percent of
the costs of CO 2 processing, represented a “fair and reasonable
settlement of the cost recovery issue.” 24
¶9 	In Committee of Consumer Services v. Public Service
Commission (Questar II), we held that the Commission had abused
its discretion by failing to follow its established practice of
requiring a prudence review of rate increases and affiliate
transactions. 25 	We stated that by approving the cost-recovery
stipulation without considering the prudence of the underlying
source of the costs--the contract between Questar and Questar
Pipeline--the Commission had abdicated its responsibility to find
the necessary substantial evidence in the record in support of
the proposed rate increase. 26 	We did not determine, however,
whether Questar was prudent in entering the affiliate contract
and incurring the CO 2 processing costs.
¶10 	On remand, the Commission found in an August 30, 2004
order (the “2004 Order”) that Questar had failed to meet its
burden of proving the prudence of its rate increase and affiliate
transaction. 	As a result, the Commission barred the cost
recovery that Questar sought during the period from June 1999 to
May 2004. 	The Commission also found that Questar’s actions did
not produce any unique economic benefits to Utah ratepayers
justifying a cost recovery. 	By its own terms, however, the 2004
Order did not foreclose the issue of whether Questar could seek
recovery of future CO 2 processing costs. 	Indeed, the 2004 Order
anticipated opening another docket to develop a long-term plan to
deal with the hazards of CBM and Questar’s obligation to provide
safe and cost-effective services to its customers. 	This plan was
further supported by the Commission’s October 20, 2004 order (the
“Clarification Order”), which stated that the 2004 Order “does

Nos. 20060279, 20060280 	6
not preclude Questar from seeking recovery of CO 2 processing
costs in other dockets.” 	The Clarification Order merely
reiterated that any future cost recovery would be subject to the
appropriate prudence review.
III. 	QUESTAR’S APPLICATION FOR FUTURE COST RECOVERY
¶11 	As contemplated in the 2004 Order, the Commission
opened a new docket and Questar explored a long-term plan to deal
with CBM issues. 	Between October 2004 and January 2005, Questar
explored at least fourteen options to deal with CBM, including
those recommended by Consumer Services and the Division. 	During
that time, Questar conducted six technical conferences, examining
both the cost and the efficiency of the various alternatives. 	By
January 31, 2005, Questar had narrowed down the preferable
alternatives for dealing with CBM to CO 2 removal and precision
blending of gas streams. 	In the short term, these two
alternatives were essentially identical; however, if Questar’s
CO 2 plant were operated year round and used to process third-
party gas, Questar could generate revenue from the third-party
processing to offset other CO 2 processing costs and reduce the
costs passed on to ratepayers. 	As a result, Questar concluded
that continued operation of the CO 2 plant would provide the most
prudent and cost-effective outcome. 	On January 31, 2005, Questar
filed an application with the Commission seeking future recovery
of CO 2 processing costs beginning February 1, 2005.
IV. 	THE STIPULATION
¶12 	After Questar’s application for future cost recovery,
the Commission gave notice of a conference to schedule further
proceedings. 	On March 1, 2005, the parties agreed on a schedule
in which Questar would file testimony on April 15 supporting the
prudence of its ongoing gas management costs, and Consumer
Services, the Division, and any intervenor would file responsive
testimony on August 15. 	The subsequent hearings were scheduled
for October 2005.
¶13 	Questar filed extensive sworn testimony in support of
its application for cost recovery. 	Consumer Services and the
Division conducted extensive discovery both prior to and
following this filing, retaining independent experts to evaluate
the prudence of Questar’s gas management costs. 	In all, Questar
filed testimony of six witnesses, consisting of 206 pages of
testimony and forty-five exhibits, while Consumer Services and
the Division served over four hundred discovery requests that
resulted in the production of nearly one thousand pages of
studies and information. 	During discovery, Consumer Services and

7 	Nos. 20060279, 20060280
the Division requested an extension of their August 15 testimony
filing date, in part because they were involved in settlement
discussions with Questar based on the information provided in the
testimony and discovery. 	Finally, after months of negotiation,
Questar, Consumer Services, and the Division reached a settlement
agreement on October 11, 2005, memorialized in the Stipulation.
¶14 	In the Stipulation, Consumer Services and the Division
agreed that Questar should be granted future cost recovery. 	The
parties agreed that Questar is legally obligated to provide safe
and reliable gas service to its customers. 	The parties agreed
that Questar must manage the heat content of its gas supply to
allow customers a transition period in which their appliances can
be inspected and, if necessary, adjusted for the different
composition of gas that will enter Questar’s system once that
transition period is over. 	The parties agreed that the operation
of the CO 2 removal plant is a reasonable means of accomplishing
the necessary heat-content management. 	Finally, the parties
agreed that approval of the Stipulation is in the public
interest, is consistent with just and reasonable rates, and will
help ensure customer safety.
¶15 	The Commission set October 20, 2005, for a hearing
where it would hear testimony favoring or opposing the
Stipulation from the parties and the public at large. 	The
Commission delivered proper notice of the hearing on October 11,
2005.
¶16 	At the hearing, representatives from Questar, Consumer
Services, and the Division testified. 	Dr. William Powell
testified that the Division had conducted its own analysis of the
available alternatives and concluded that operating the CO 2
processing plant was a reasonable course of action until customer
appliances are compatible with the lower heat content of the
natural gas. 	On behalf of Consumer Services, Dan Gimble
testified that the circumstances concerning the supply of CBM had
changed from prior dockets when Consumer Services opposed
Questar’s cost recovery. 	Consumer Services had previously argued
that CBM provided little benefit to ratepayers. 	But Gimble
stated that, as of October 2005, CBM was a significant and
beneficial gas supply to Questar’s customers. 	And on behalf of
Questar, Barrie McKay testified that Questar had engaged in
vigorous negotiations with Consumer Services and the Division,
which included independent experts, responses to discovery
requests, and more than one thousand pages of studies relating to
gas processing alternatives. 	Finally, two members of the public
were present at the public portion of the hearing, one of whom
was not a familiar participant at Commission proceedings.

Nos. 20060279, 20060280 	8
¶17 	On November 4, 2005, Ball and Geddes filed affidavits
opposing the Stipulation. 	Ball was the former staff director of
Consumer Services, and he had participated in that capacity in
the Commission proceedings through January 2005, when his
employment was terminated. 	After leaving Consumer Services, Ball
was notably absent from Commission proceedings until November 17,
2005, when he and Geddes filed their formal Request to Intervene
before the Commission with the support of various individuals
identifying themselves as Questar customers.
V. 	THE COMMISSION’S ORDER DENYING THE REQUEST TO INTERVENE
¶18 	On January 6, 2006, the Commission issued its Order on
Request to Intervene (the “Intervention Order”), denying Ball and
Geddes formal intervention in the proceedings. 	In the
Intervention Order, the Commission noted that both Ball and
Geddes were familiar with the proceedings and, had they wanted to
intervene, they should have done so in a more timely manner. 	The
Commission stated, “We will not give them reprieve from the
consequences of their own choices.” 	The Commission further noted
that allowing their late intervention would “set[] precedent for
seeking intervention after the normal conclusion of the
administrative process.”
¶19 	The Commission also explained that Ball and Geddes’s
interest as consumers was protected because the “Division and
[Consumer Services] are statutorily charged with including
customers’ interest in their deliberations and advocacy” under
Utah Code sections 54-4a-6 and 54-10-4. 	The Commission noted
that “[b]oth entities thoroughly studied the issues in this
matter, carefully scrutinized [Questar’s] proposals and analysis,
and fulfilled their statutory responsibilities.” 	Indeed, the
Commission found that “the Division and [Consumer Services]
obtained significant concessions and compromises from Questar.”
¶20 	The Commission ultimately indicated that allowing the
intervention would violate Utah Code section 63-46b-9: “[I]t is
not appropriate for [Ball and Geddes] to be granted such a tardy
intervention and eviscerate the work already done and subject all
parties, the regulatory process, the State’s and customers’
interests, to the vagaries of the odyssey foreshadowed in [their]
intervention.”
VI. 	THE COMMISSION’S ORDER APPROVING THE GAS MANAGEMENT COST
STIPULATION

27 See Utah Code Ann. § 54-7-15(2)(c) (Supp. 2007).
9 	Nos. 20060279, 20060280
¶21 	On June 6, 2006, the Commission entered its Report and
Order (the “Approval Order”) approving the Stipulation. 	In the
Approval Order, the Commission noted Consumer Services’ change of
position with respect to Questar’s recovery of CO 2 processing
costs. 	The Commission stated that CBM now represents between
twenty-five 	percent and forty percent of Questar’s overall
market purchases as compared to less than five percent 	during
Consumer Services’ previous opposition to Questar’s cost
recovery. 	In addition, Consumer Services’ experts concluded that
special blending of CBM would “not entirely eliminate the need to
process the gas in order to protect Questar Gas Customers.” 	As a
result, Consumer Services concluded that CO 2 removal is the most
effective way to deal with the CBM supply.
¶22 	In the Approval Order, the Commission primarily found
as follows: (1) there had been a significant change of
circumstances such that now “customers have benefitted
financially from the presence of [CBM] on the Questar gas
system”; (2) Questar met its burden of proving the prudence of
its decision to pursue CO 2 processing after its technical
conferences, analyses, studies, and testimony, all of which
indicated that continued operation of the CO 2 plant is the most
cost-effective and efficient means of dealing with the CBM
supply; and (3) safety, efficiency, and cost considerations,
rather than affiliate interests, led all of the parties to
conclude that operation of the CO 2 plant is the preferred course
of action during the stipulated transition period. 	Finally, the
Commission noted that, in reaching the conclusion to continue
operating the CO 2 plant, Questar “conducted a transparent
decision-making process open to the public and subject to
scrutiny by any interested person.”
VII. 	COMMISSION RECONSIDERATION AND JUDICIAL REVIEW
¶23 	The Petitioners requested that the Commission
reconsider both its order denying the request to intervene and
its order approving the Stipulation. 	The Commission never
responded to either of these requests, and as a result the
requests were deemed denied by statute. 27 	The Petitioners filed
petitions with this Court to review both orders of the
Commission. 	The petition to review the Commission’s Intervention
Order was filed by Ball and Geddes, while the petition to review
the Commission’s Approval Order was filed by all of the
Petitioners, including Ball and Geddes. 	Questar filed motions to
dismiss both petitions. 	We deferred ruling on these motions
until the briefing was complete and we heard oral arguments on

28 Id. § 54-4-26 (2000).
Nos. 20060279, 20060280 	10
the matter. 	We now affirm the Commission’s Intervention Order
and grant Questar’s motion to dismiss the petition for review as
to the Approval Order.
VIII. 	THE PETITIONERS’ AND THE RESPONDENTS’ ARGUMENTS
¶24 	On appeal, the Petitioners offer several reasons why
the cost recovery granted in the Approval Order should not be
allowed. 	First, the Petitioners argue that the Approval Order is
barred because the 2004 Order is res judicata. 	The Respondents,
which include Questar, Consumer Services, and the Commission,
reply that res judicata does not apply because the Commission in
the 2004 Order never actually decided that Questar was imprudent,
but instead decided that Questar had not established facts
sufficient to show prudence. 	The Respondents also assert that
the 2004 Order does not bar cost recovery in the Approval Order
because ratemaking is a legislative function of the Commission to
which res judicata does not apply. 	Furthermore, the Respondents
argue that there is a material difference in the facts underlying
the two orders such that the 2004 Order does not bar recovery
under the Approval Order; the 2004 Order by its very terms
welcomed and anticipated Questar’s seeking recovery of CO 2
processing costs when it could demonstrate the prudence of its
continued operation of the CO 2 plant.
¶25 	Second, the Petitioners argue that the Commission did
not conduct a proper prudence review before entering the Approval
Order. 	The Petitioners maintain that Questar’s previous
imprudence is still determinative regardless of how the
circumstances have changed. 	The Respondents reply that the
Approval Order, finding that Questar’s decision to operate the
CO 2 plant was prudent, need only be supported by substantial
evidence, a standard that was met in this case. 	The Respondents
maintain that, as markets develop and facts change, the decision
to continue operating the CO 2 plant is a separate decision to
which prudence should be applied.
¶26 	Third, the Petitioners argue that if the appropriate
standard had been correctly applied, the Commission would have
prohibited Questar from contracting with its affiliate, Questar
Pipeline, to build the CO 2 plant. 28 	The Respondents reply that
affiliate transactions are not absolutely barred but require
review by the Commission to assure that customer interests are
not being subordinated to those of corporate affiliates.

29 Utah Code Ann. § 63-46b-16 (2004).
11 	Nos. 20060279, 20060280
¶27 	We do not reach the merits of the various arguments in
the Petitioners’ petition for review of the Commission’s Approval
Order but instead dismiss the petition for lack of appellate
standing. 	And we affirm the Commission’s Intervention Order
denying Ball and Geddes intervention in the Commission
proceedings. 	We have jurisdiction pursuant to Utah Code section
78-2-2(3)(e)(i).
STANDARD OF REVIEW
¶28 	The Utah Administrative Procedures Act (“UAPA”) governs
our review of administrative agency decisions based on formal
adjudicative hearings. 29 	Section 63-46b-16(4) provides that we
grant relief to petitioners only if they were “substantially
prejudiced” by any of the following:
(d) the agency has erroneously
interpreted or applied the law;
(e) the agency has engaged in an
unlawful procedure or decision-making
process, or has failed to follow prescribed
procedure;
. . . ;
(g) the agency action is based upon a
determination of fact, made or implied by the
agency, that is not supported by substantial
evidence when viewed in light of the whole
record before the court;
(h) the agency action is:
(i) an abuse of the discretion
delegated to the agency by statute;
. . . ;
(iii) contrary to the agency’s prior
practice, unless the agency justifies
the inconsistency by giving facts and
reasons that demonstrate a fair and
rational basis for the inconsistency; or
(iv) otherwise arbitrary or
capricious.

30 Utah Code Ann. § 63-46b-16(4)(g) (2004).
31 Id. § 63-46b-16(4)(g); see Millard County v. State Tax
Comm’n, 823 P.2d 459, 462 (Utah 1991).
32 823 P.2d 459, 464 (Utah 1991).
33 Id. at 460.
Nos. 20060279, 20060280 	12
ANALYSIS
¶29 	Our analysis of appellate standing is dependent on the
outcome of our review of the Commission’s Intervention Order
denying Ball and Geddes’s request to intervene. 	Accordingly, we
will first review the Intervention Order and then proceed to our
analysis of appellate standing.
I. 	REVIEW OF THE COMMISSION’S INTERVENTION ORDER
¶30 	We review the Commission’s Intervention Order denying
Ball and Geddes’s request to intervene for “substantial evidence”
in the record. 30 	Because the Commission based its decision on
substantial record evidence, its denial of Ball and Geddes’s
request to intervene was proper.
¶31 	Section 63-46b-9 of the UAPA governs intervention in
Commission proceedings. 	Section 63-46b-9(2) grants a qualified
right to intervene so long as “(a) the petitioner’s legal
interests may be substantially affected by the formal
adjudicative proceeding; and (b) the interests of justice and the
orderly and prompt conduct of the adjudicative proceedings will
not be materially impaired by allowing the intervention.” 31 	The
Respondents concede that Ball and Geddes may be “substantially
affected” by the proceedings. 	Thus, the only issue is whether
Ball and Geddes’s intervention meets the second requirement for
intervention.
¶32 	Ball and Geddes rely on our decision in Millard County
v. State Tax Commission, where we allowed Millard County to
intervene in a proceeding before the Utah State Tax Commission
(the “Tax Commission”). 32 	In Millard County, Intermountain Power
Agency (“IPA”) filed a petition for redetermination of its sales
and use tax liability with the Tax Commission in May 1988. 33 	One
month after IPA filed its petition, Millard County (“the County”)
petitioned to intervene in the proceeding since it was a

34 Id.
35 Id.
36 Id.
37 Id. at 462.
38 Id. at 463.
13 	Nos. 20060279, 20060280
significant beneficiary of the taxes paid by IPA. 34 	The Tax
Commission and IPA subsequently settled and stipulated to IPA’s
tax liability in August 1988. 35 	As a result of this settlement,
the Tax Commission in February 1989 denied Millard County’s
petition to intervene. 36 	We reversed and held that the Tax
Commission erred in denying the County intervention because the
County had legal interests that would be substantially affected
by the proceeding. 37 	Moreover, the County’s intervention was
filed after only one month of proceedings and therefore would not
have disrupted the minimal work completed by the parties up to
that point. 38
¶33 	Unlike Millard County’s timely petition, Ball and
Geddes’s request to intervene will materially impair the
interests of justice and the orderly and prompt conduct of the
Commission proceedings. 	Ball and Geddes filed their request to
intervene in this case over a year after the parties initiated
proceedings 	and after the parties entered into a settlement
agreement. 	Beginning in October 2004 and prior to Ball and
Geddes’s attempted intervention in November 2005, the parties
undertook much work at great expense. 	The parties engaged in
vigorous negotiations and retained independent experts to make
assessments of the best alternatives to deal with the CBM supply.
Moreover, Questar provided lengthy testimony and responded to
over four hundred discovery requests made by Consumer Services
and the Division that comprised over one thousand pages. 	Ball
and Geddes’s failure to intervene earlier was not for lack of
knowledge or notice of the proceedings; indeed, Ball originally
participated in the proceedings as a staff director for Consumer
Services. 	As staff director, Ball was aware of the six technical
conferences conducted by Questar, as well as the initial
recommendations made by Consumer Services and the Division. 	By
January 2005, Ball knew that Questar had narrowed down the
preferable alternatives for dealing with CBM to CO 2 removal or
precision blending of gas streams.
¶34 	The Stipulation in this case was not used to prevent
another party from participating in the proceedings, as in

39 See id. at 461.
40 Utah Code Ann. § 63-46b-9(2)(b).
Nos. 20060279, 20060280 	14
Millard County,39 but was entered into before Ball and Geddes
attempted to intervene. 	Furthermore, Ball and Geddes’s request
to intervene came after they failed to participate in the public
hearings that were conducted to receive testimony favoring or
opposing the Stipulation. 	Although Ball and Geddes argue that
the Commission failed to give adequate notice of the hearing, the
record indicates that the Commission followed all UAPA guidelines
for providing notice. 	Indeed, two nonparties received notice of
the proceedings and participated in the hearing, including one
individual who was not a regular participant in Commission
proceedings.
¶35 	Finally, in Millard County, the County did not have its
interests adequately represented by another party in the
proceedings, whereas Ball and Geddes’s interests as consumers in
this case were protected by Consumer Services and the Division--
both charged by statute with protecting consumer interests.
Consumer Services indicated at the Stipulation hearing that the
market for CBM had undergone a material change and had become a
significant source of gas, providing substantial benefits to
consumers. 	According to Consumer Services, because of this
change in market conditions, the Stipulation would financially
benefit Questar’s customers.
¶36 	Ball and Geddes do not provide any reasonable
explanation for their late intervention. 	They argue that up
until their request to intervene, they had relied on Consumer
Services to represent their interests as consumers, but at the
moment Consumer Services agreed to the Stipulation, it abandoned
the interests of consumers and yielded to the desires of Questar.
Were we to follow Ball and Geddes’s reasoning, a party would need
to disagree only with the direction of the proceedings to be
justified in intervening, no matter how late in the game. 	Such
reasoning is misguided because it ignores the plain language of
section 63-46b-9, which requires that intervention not materially
interfere with the interests of justice and the orderly and
prompt adjudication of the matter before the Commission. 40
¶37 	Ultimately, Ball and Geddes’s intervention contemplates
undoing all of the Commission proceedings in order to subject
to their scrutiny and cross-examination. 	Clearly, at this late
stage, such action would materially impair the proceedings
because it would require all the parties to duplicate
expenditures of time and money to accommodate a party who was

41 Grace Drilling Co. v. Bd. of Review of Indus. Comm’n, 776
P.2d 63, 68 (Utah Ct. App. 1989); see also Associated Gen.
Contractors v. Bd. of Oil, Gas & Mining, 2001 UT 112, ¶ 21, 38
P.3d 291; EAGALA, Inc. v. Dep’t of Workforce Servs., 2007 UT App
43, ¶ 8, 157 P.3d 334.
42 See Wayment v. Howard, 2006 UT 56, ¶ 9, 144 P.3d 1147.
43 Utah R. App. P. 24(a)(9) (“The argument shall contain the
contentions and reasons of the appellant with respect to the
issues presented, including the grounds for reviewing any issue
not preserved in the trial court, with citations to the
authorities, statutes, and parts of the record relied on.”).
15 	Nos. 20060279, 20060280
well aware of the proceedings and yet decided to postpone
intervention. 	Therefore, the Commission properly denied Ball and
Geddes’s request to intervene.
¶38 	In addition to affirming the Commission’s Intervention
Order, we briefly discuss two additional bases for upholding the
Commission’s order. 	First, Ball and Geddes failed to
substantially marshal the evidence as required when contesting a
factual finding of the Commission. 	Second, Ball and Geddes
failed to meet the briefing requirements of rule 24 of the Utah
Rules of Appellate Procedure.
A. 	Failure to Substantially Marshal the Evidence
¶39 	A party is required to marshal the evidence supporting
the Commission’s factual findings and to show that, “despite the
supporting facts, and in light of conflicting or contradictory
evidence, the findings are not supported by substantial
evidence.” 41 	In this case, Ball and Geddes failed to
substantially marshal the evidence in support of the Commission’s
finding regarding intervention. 	Instead, they advocated their
position by merely arguing that it is just and equitable for them
to intervene in the proceedings. 	Their failure to marshal the
evidence is a sufficient basis for affirmance of the Intervention
Order. 42
B. 	Failure to Adequately Brief
¶40 	Additionally, Ball and Geddes’s briefing on the issue
of intervention is inadequate. 	Under rule 24 of the Utah Rules
of Appellate Procedure, petitioners seeking judicial review must
identify the legal or factual errors of the lower court or
agency. 43 	We have consistently declined to review issues that

44 See State v. Thomas, 961 P.2d 299, 304 (Utah 1998) (“[A]
reviewing court will not address arguments that are not
adequately briefed.”); see also W. Jordan City v. Goodman, 2006
UT 27, ¶ 29, 135 P.3d 874 (stating that the “court is not a
depository in which the appealing party may dump the burden of
argument and research” (citations and internal quotation marks
omitted)).
45 Lake Shore Motor Coach Lines, Inc. v. Bennett, 333 P.2d
1061, 1064 (Utah 1958).
46 Bearden v. Wardley Corp., 2003 UT App 171, ¶ 8 n.4, 72
P.3d 144 (citation and internal quotation marks omitted).
47 Utah Code Ann. § 54-7-15(2)(b) (Supp. 2007).
Nos. 20060279, 20060280 	16
are not adequately briefed. 44 	And we have long held that it is
improper to “mak[e] blanket assertions and leav[e] the
responsibility to the court to ferret out evidence from the
record to support [them].” 45 	In this case, Ball and Geddes’s
“overall analysis of the issue is so lacking as to shift the
burden of research and argument to the reviewing court.” 46
¶41 	After the Commission denied their request to intervene,
Ball and Geddes submitted a request for reconsideration to the
Commission. 	In their brief for reconsideration, Ball and Geddes
failed to raise or even identify a single error that would have
required the Commission to modify its Intervention Order.
Rather, Ball and Geddes incorporated by reference the brief they
had previously filed with the Commission on December 13, 2005,
which included arguments as to reasons the Commission should
grant the intervention. 	Thus, Ball and Geddes essentially asked
the Commission to review the previous brief and find some reason
to change its Intervention Order.
¶42 	In its motion to dismiss, Questar highlights this
inadequate briefing before the Commission. 	Questar argues that
because Ball and Geddes did not raise any issues of error in
their request for reconsideration, they did not preserve any
issues for our review. 	Indeed, Utah Code section 54-7-15 states
that “[a]n applicant [for reconsideration] may not urge or rely
on any ground not set forth in the application in an appeal to
any court.” 47
¶43 	Furthermore, like their request for reconsideration,
Ball and Geddes’s memorandum opposing summary dismissal of their
appeal consists of a single page and does not identify specific
issues of error but merely incorporates by reference the same

48 Id. § 63-46b-14(3) (2004) (“A party may seek judicial
review only after exhausting all administrative remedies
available . . . .”).
49 Id. §§ 63-46b-14(1), -16(4).
50 Williams v. Pub. Serv. Comm’n, 754 P.2d 41, 46 (Utah
(continued...)
17 	Nos. 20060279, 20060280
December 13, 2005 brief. 	Their memorandum further states in
reference to that brief that “these pleadings, seeking
reconsideration, speak for themselves and show the Court that
these Petitioners have raised arguments of substantial merit,
warranting review in this Court.” 	Ultimately, Ball and Geddes’s
petition before us amounts to a request that we review their
initial request for intervention and find some merit in that
argument. 	Even under a de novo standard of review, such briefing
would be inadequate. 	But here, where we give deference to the
Commission’s decision and review for “substantial evidence” in
the record, asking us to review the arguments and facts
originally submitted to the Commission is clearly inappropriate.
Accordingly, had we so chosen, we could have avoided addressing
the intervention issue as a result of inadequate briefing.
II. 	PETITIONERS’ APPELLATE STANDING
¶44 	Generally, a party lacks appellate standing when the
party is denied intervention in a proceeding and therefore is
unable to participate below. 	This is a corollary to the
exhaustion of remedies requirement that must be satisfied in
order to appeal a Commission decision. 48 	In this case, however,
our appellate standing analysis does not end with affirming the
Commission’s decision to deny Ball and Geddes intervention in the
proceedings. 	Utah Code section 54-7-15 grants standing to
certain classes of individuals to seek judicial review of
Commission decisions regarding public utilities. 	Nevertheless,
such individuals are not given standing to appeal any Commission
decision, but must also be “aggrieved” or “substantially
prejudiced” by that decision. 49 	Thus, we must now determine
whether any individual petitioner in this case has appellate
standing to seek judicial review of the Commission’s orders.
A. 	Statutory Standing Requirements
¶45 	As we have stated, “Prior to deciding the substantive
questions presented by the parties, this Court must ascertain
whether it has subject matter jurisdiction over the petitions and
the appeal before it.” 50 	In this case, three sections of the

50 (...continued)
1988).
51 Utah Code Ann. § 54-7-15(1) (Supp. 2007) (emphasis
added).
52 Id. § 63-46b-14(2) (2004).
53 Id. § 54-7-15(2)(a) (Supp. 2007).
54 Id. § 63-46b-14(1) (2004).
55 Id. § 63-46b-16(4) (emphasis added).
Nos. 20060279, 20060280 	18
Utah Code are relevant in determining whether any individuals
have appellate standing that would grant this court subject
matter jurisdiction to hear their appeal: (1) section 54-7-15,
(2) section 63-46b-14, and (3) section 63-46b-16. 	Read together,
these three sections provide the basis for our standing analysis.
¶46 	First, section 54-7-15 of the Public Utilities Act
(“PUA”) identifies the individuals who are allowed to seek
judicial review of a Commission decision. 	Section 54-7-15(1)
states as follows: “Before seeking judicial review of the
commission’s action, any party, stockholder, bondholder, or other
person pecuniarily interested in the public utility who is
dissatisfied with an order of the commission shall meet the
requirements of this section.” 51
¶47 	Second, section 63-46b-14 of the UAPA, which governs
state administrative agency proceedings, requires individuals to
exhaust all administrative remedies before they will be allowed
to seek judicial review of an agency decision. 52 	This includes
applying for a rehearing with the Commission. 53 	The UAPA also
reflects the traditional notion that a party may 	appeal only an
adverse judgment. 54
¶48 	Third, section 63-46b-16(4) echoes the “aggrievement”
requirement of section 63-46b-14 by using a synonymous term,
stating as follows: “The appellate court shall grant relief only
if, on the basis of the agency’s record, it determines that a
person seeking judicial review has been substantially prejudiced
. . . .” 55 	Thus, if an agency decision has not “substantially
prejudiced” the appealing party, the party has no appellate
standing.
¶49 	In sum, an individual may have appellate standing to
seek judicial review of an agency decision if he or she has

56 Roger Ball did participate in some of the lower
proceedings as staff director of Consumer Services but not in his
current capacity as an individual ratepayer.
19 	Nos. 20060279, 20060280
exhausted all administrative remedies and qualifies as an
“aggrieved” or “substantially prejudiced” “party, stockholder,
bondholder, or other person pecuniarily interested in the public
utility.”
¶50 	The exhaustion of administrative remedies is not at
issue here, since the Petitioners sought rehearing before the
Commission on both the Intervention Order and the Approval Order.
Further, while none of the Petitioners were parties to the
proceedings below, 56 (indeed only Ball and Geddes petitioned the
Commission to intervene and their request was denied) some of the
Petitioners are ratepayers or stockholders of Questar. 	We
therefore are left to consider whether those petitioners who
qualify as nonparty (1) ratepayers or (2) stockholders have
appellate standing. 	We conclude that the ratepayers do not have
standing because they are not “pecuniarily interested in the
public utility.” 	And while the stockholders are among an
authorized class of persons who have standing, they are not
“aggrieved” or “substantially prejudiced” by the Commission’s
decision and therefore have no appellate standing.
B. 	Ratepayer Standing
¶51 	We first note that ratepayers who were parties to the
proceedings below may have appellate standing in a given case if
they exhaust all administrative remedies and are aggrieved by the
Commission’s decision. 	But in this case, where none of the
Petitioners were parties to the action below, the Petitioners
argue that ratepayers have appellate standing because they
qualify as “pecuniarily interested in the public utility” and are
“aggrieved” by the Commission’s decision to approve Questar’s
cost recovery. 	There is no dispute among the parties that the
ratepayers are adversely affected in the short term by the
Commission’s decision. 	In fact, Questar concedes that their cost
recovery will result in an approximate $0.50 increase per month
in a ratepayer’s gas bill until the stipulated transition period
is completed as planned in 2008. 	Differences arise, however, in
the parties’ interpretation of the term “pecuniarily interested
in the public utility.”
¶52 	According to the Petitioners, a pecuniary interest in
the public utility means having some kind of financial interest
related to the public utility. 	So the Petitioners argue that
because ratepayers are financially affected by Questar’s cost

57 Utah Code Ann. § 54-7-15(1) (Supp. 2007).
58 State ex rel. A.T., 2001 UT 82, ¶ 12, 34 P.3d 228.
59 Even the Petitioners recognize the opposing nature of the
two classes as they seek to have stockholders, not ratepayers,
bear the cost of operating the CO 2 processing plant.
Nos. 20060279, 20060280 	20
recovery, ratepayers qualify as “pecuniarily interested in the
public utility” and therefore have standing to appeal the
Commission’s decision.
¶53 	On the other hand, the Respondents argue that having a
pecuniary interest in the public utility means having a direct
financial stake in the public utility, such as that of a
stockholder, rather than having a financial relation to the
public utility, such as that of a ratepayer. 	We agree.
¶54 	First, under the doctrine of ejusdem generis,
ratepayers simply do not qualify as persons “pecuniarily
interested in the public utility” by the very terms of the
statute. 57 	The term “pecuniarily interested in the public
utility” must be interpreted as a class consistent with the terms
“stockholder” and “bondholder.” 	“[Ejusdem generis] declares that
in order to give meaning to the general term, the general term is
understood as restricted to include things of the same kind,
class, character, or nature as those specifically enumerated,
unless there is something to show a contrary intent.” 58 	The
statute first speaks in terms of “stockholders” and
“bondholders,” individuals that have a specific financial stake
in the public utility, whether it be equity or debt. 	A
ratepayer, although financially affected in the sense of paying
higher or lower rates as a consumer, does not have a stake in the
public utility akin to a stockholder or bondholder and therefore
does not qualify as a “person pecuniarily interested in the
public utility.” 	Furthermore, a ratepayer’s financial interest
is in direct opposition to that of stockholders and bondholders
and therefore inconsistent with a pecuniary interest in the
public utility. 	Indeed, ratepayers want low rates, while
stockholders generally want greater revenues, and as a result,
higher rates. 	It would be nonsensical to interpret “ratepayers”
as falling within the same class of persons as “stockholders”
when the interests of the two classes are opposed to each
other. 59
¶55 	Second, we note the complete absence of the term
“ratepayer” or “customer” in this section of the statute. 	The
Legislature was well aware of these terms as evidenced by their

60 The Utah Code references either the term “customer” or
the term “ratepayer” six times. 	Utah Code Ann. §§ 54-2-1(15)(e)
(Supp. 2007) , 54-3-1 (2000), 54-4-4(4)(a)(i) (Supp. 2007), 54-4-
14 (2000), 54-4-25(5)(a) (Supp. 2007), 54-4a-6(4)(d) (2000).
61 See also id. § 54-1-11(1)(a) (2000).
62 See id. § 54-7-15(2)(a) (Supp. 2007).
21 	Nos. 20060279, 20060280
frequent use in the PUA, yet the terms are notably absent from
section 54-7-15. 60
¶56 	Third, sections 54-1-11 and 54-4a-5 of the PUA support
our interpretation of the term “pecuniarily interested in the
public utility.” 	Section 54-1-11(1)(a) states that “[n]o person
employed as a commissioner or as personnel of the commission
shall, while so employed . . . [h]ave any pecuniary interest,
whether as the holder of stock or other securities . . . [of] any
public utility.” 	Similarly, section 54-4a-5(1) states that “[n]o
employee of the Division of Public Utilities shall, while so
employed . . . have any pecuniary interest, whether as the holder
of stock or other securities . . . [of] any public utility.” 61
Thus, consistent with these sections, a commissioner or employee
with a “pecuniary interest” is one who holds “stock or other
securities” of a public utility, not a mere ratepayer, a category
that would presumably include all commissioners.
¶57 	Ultimately, although the ratepayers are “aggrieved” by
the increase to their gas bill resulting from the Commission’s
decision, they lack appellate standing because they have no
pecuniary interest in the public utility and therefore do not
fall within the classes of persons to whom standing is granted.
We now turn to the remaining three petitioners who have provided
stock certificates to verify their status as Questar
stockholders.
C. 	Stockholder Standing
¶58 	Of the many petitioners in this case, only three are
Questar stockholders. 	As stockholders, these individuals are
explicitly granted the right to seek judicial review under the
PUA. 62 	Unlike the ratepayers, however, the stockholders lack
appellate standing in this case because they are not “aggrieved”
or “substantially prejudiced” by the Commission’s decision.
¶59 	In Utah Chapter of the Sierra Club v. Utah Air Quality
Board, we held that standing requires a showing of injury,

63 2006 UT 74, ¶ 19, 148 P.3d 960.
64 Salt Lake City Corp. v. Prop. Tax Div., 1999 UT 41, ¶ 11,
979 P.2d 346 (quoting Jenkins v. Swan, 675 P.2d 1145, 1148 (Utah
1983)) (alterations in Salt Lake City Corp.); see Sierra Club,
2006 UT 74, ¶ 19.
Nos. 20060279, 20060280 	22
causation, and redressability. 63 	And we have stated that the
term “aggrieved” connotes nothing more than a showing of injury,
“the traditional principle that claimants ‘must be able to show
that [they have] suffered some distinct and palpable injury that
gives [them] a personal stake in the outcome of the legal
dispute.’” 64 	In this case, the stockholders fail to assert a
proper injury to meet the first element of the traditional test;
therefore, a full analysis of standing is unnecessary.
¶60 	The Petitioners’ brief does not provide much by way of
argument as to how the Questar stockholders have been injured in
that capacity by the Commission’s decision. 	Although the
Petitioners’ brief inadequately addresses the stockholders’
injury, the stockholders set forth in personal affidavits a claim
that they may be adversely affected in the long term by Questar’s
self-dealing transaction with Questar Pipeline, which enabled the
CO 2 plant to be built. 	The stockholders allege that approving
the Stipulation will encourage Questar to continue affiliate
transactions and will lead stockholders to suffer a fate
comparable to the stockholders of Enron, WorldCom, or Tyco. 	But
the stockholders fail to assert any injury similar to the
economic injury alleged by the ratepayers. 	In fact, the
Petitioners’ brief indicates that Questar stockholders have
benefitted from the improved financial situation that resulted
from the Commission’s approval of the cost recovery.
Furthermore, the stockholders do not assert that their alleged
injury is immminent. 	Rather, their alleged injury is one that
might take place sometime in the future. 	In short, stockholders
may have appellate standing where the Commission’s decision
substantially prejudices the interests of those stockholders, but
such is not the case here.
¶61 	Protecting stockholders from corporate mismanagement
does not fall within the “zone of interest” contemplated by
section 54-7-15. 	A person who is “aggrieved” by agency action
must establish “that the injury he complains of . . . falls
within the ‘zone of interests’ sought to be protected by the
statutory provision whose violation forms the legal basis for his

65 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990);
see Ass’n of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150,
153-54 (1970); S & G, Inc. v. Morgan, 797 P.2d 1085, 1087 (Utah
1990).
23 	Nos. 20060279, 20060280
complaint.” 65 	The Public Utilities Act was created to regulate
utilities, not to protect stockholders from mismanagement.
Stockholders are given other means to deal with such matters.
Indeed, the Petitioners recognized before the Commission the
stockholders’ ultimate remedy when dealing with corporate
mismanagement. 	The Petitioners’ stated that, unlike ratepayers,
[i]f the Questar shareholders believe that
their company’s executives have injured their
interests by wrongheaded business decisions,
they have a choice--they can seek redress
through the corporate oversight shareholders
have always had with respect to management
functions or they can sell their shares and
invest in better operated companies.
¶62 	In sum, the ratepayers may have suffered a distinct and
palpable injury but are not among the classes of persons
authorized by statute to appeal an agency decision. 	On the other
hand, the stockholders are an authorized class but lack a
distinct and palpable injury to qualify as a “party aggrieved” or
“substantially prejudiced.” 	Therefore, none of the Petitioners
qualify for appellate standing before this Court.
CONCLUSION
¶63 	We affirm the Commission’s Intervention Order denying
Ball and Geddes intervention and dismiss the petition for review
of the Approval Order for lack of appellate standing.
---
¶64 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.