BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF COLORADO

*****
IN THE MATTER OF THE
APPLICATION OF THE CITY OF
BOULDER, COLORADO FOR
APPROVAL OF THE PROPOSED
TRANSFER OF ASSETS FROM
PUBLIC SERVICE COMPANY OF
COLORADO TO THE CITY AND
ASSOCIATED AUTHORIZATIONS
AND RELIEF

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PROCEEDING NO. 15A-0589E

THE CITY OF BOULDERS REPLY TO STAFFS RESPONSE IN SUPPORT OF

Colorado PUC E-Filings System

PUBLIC SERVICE COMPANY OF COLORADOS MOTION TO DISMISS

September 10, 2015

TABLE OF CONTENTS
I. EXECUTIVE SUMMARY ................................................................................................... 1
II. ARGUMENT ....................................................................................................................... 5
A.

THE DETERMINATIONS OF LAW SOUGHT BY STAFF ARE

CONTRARY TO COLORADO LAW AND TO THE COMMISSIONS
DECISIONS. ...................................................................................................... 5

1.

The Citys Proposed Joint Use of Facilities Through Its Distribution Wheeling
Arrangement Is Consistent with the Commissions Decisions, Honors the
Doctrine of Regulated Monopoly and Is Commonplace. .................................. 6

2.

The Citys Proposed Joint Use of Facilities Through Its Distribution Wheeling
Arrangement Does Not Obstruct PSCos Customer Relationships. .................. 8

B.

THE COMMISSION CAN AND SHOULD STRIKE A HARMONIOUS

BALANCE BETWEEN THE COMMISSIONS OVERSIGHT OVER
PUBLIC UTILITY SERVICE IN COLORADO AND BOULDERS
CONSTITUTIONAL HOME RULE AUTHORITY. ..................................... 10

1.

The Commission Can Continue to Ensure the Delivery of Safe and Reliable
Service at Just and Reasonable Rates. ............................................................. 10

2.

Regardless of Staffs View of Boulders Proposed Distribution Wheeling

Arrangement, the Entire Application Should Not Be Dismissed. ................... 11

C.

STAFFS RESPONSE SHOULD BE CONSTRUED AS A MOTION FOR A

DETERMINATION OF A QUESTION OF LAW AND SHOULD BE
STRICKEN. ..................................................................................................... 12

D.

STAFFS RESPONSE IS DEFICIENT. .......................................................... 13

1.

Staff Fails to Identify a Viable Reason for a Determination of Incompleteness.

.......................................................................................................................... 13

2.

Staffs Response Constitutes a de facto Rulemaking. ..................................... 15

3.

The Arguments in Trial Staffs Response More Properly Belong in Motions in

Limine or in Its Answer Testimony ................................................................. 16

III. CONCLUSION ................................................................................................................. 17

The City of Boulder, Colorado (Boulder or the City), pursuant to Rule 1400 of
the Colorado Public Utilities Commissions (Commission) Rules of Practice and
Procedure, hereby submits its Reply to Staffs Response (Response) in Support of Public
Service Company of Colorados (PSCo or the Company) Motion to Dismiss the
Application (Motion or Motion to Dismiss), filed with the Commission on August 28,
2015. The City respectfully requests that the Motion to Dismiss be denied for all the reasons
provided below and in Boulders previously filed Response in Opposition to PSCos Motion
to Dismiss.1
I.

EXECUTIVE SUMMARY

Both PSCos Motion to Dismiss and the additional relief sought for the first time in
Staffs Response should be denied. Rule 1303(c) was never intended to be used as the basis
for a motion to dismiss. It is an administrative task assigned to Staff. Staff is required to
make a determination of completeness, not of the law or the merits of the case. In fact, Rule
1303(c) states explicitly that a determination of completeness is not a decision on the merits
of the application.
The determinations of questions of law sought by Staff are contrary to Colorado law
and to Commission Decision Nos. C13-1350 and C13-1550 issued in Proceeding No. 13D0498E (the Commissions Decisions). Staffs Response turns on the assumption that the
Citys Application constitutes a plan to serve out of City customers in a manner that would
deprive PSCo of its certificated right to serve and the Commission of its right to regulate. In
fact, the Application provides a detailed plan to serve only customers within the City in a
safe, reliable, and cost-effective manner by sharing out of City distribution resources with
PSCo and proposes two additional proceedings before the Commission. The Citys proposal

Boulder incorporates the arguments presented in its Response to PSCos Motion to Dismiss, which the City
filed on August 28, 2015, by reference herein.

is consistent with the Commissions Decisions, honors the doctrine of regulated monopoly
and is consistent with common practice in Colorado.
Pursuant to C.R.S. 40-4-101(1), the Commission has broad authority over the
practices, equipment, facilities, or service of any public utilityand may fix the same by its
order, rule, or regulation.2 Further, the joint use statute, C.R.S. 40-4-105, anticipates the
Commission ordering the joint use of equipment and facilities when utilities are unable to
agree on joint use and/or the terms and conditions of the joint use. These statutes, taken
together, argue against Staffs position that the Commission has no authority to order PSCo
to share facilities with the City if the Commission determines that joint use is appropriate.
Utilities in Colorado routinely enter into joint use arrangements. They also routinely
enter into contracts for services, such as that contemplated by Boulders Application. After
reviewing the evidence presented in this proceeding, the Commission will determine the
appropriate degree of joint use. In future proceedings, the Commission will determine
appropriate distribution wheeling rates and the appropriate terms and conditions by which the
City, acting as PSCos agent, will provide various contracted services to PSCo.
In the course of this proceeding, the Commission can and should strike a harmonious
balance between the Commissions oversight of public utility service in Colorado and
Boulders constitutional authority to condemn facilities both inside and outside the City that
are necessary for the safe, reliable and cost-effective operation of a municipal electric
distribution system.
Whether the Commission ultimately approves Boulders Application as proposed,
there is no reason to dismiss Boulders Application. A substantial portion of the assets
proposed for transfer are used exclusively to serve customers entirely within the City limits.
Further, while the City proposed the plan that it has found to be the safest, most reliable, and

C.R.S. 40-4-101(1).

most cost-effective, it recognizes that there are a host of alternative arrangements that may be
offered by intervenors for the Commissions consideration during the course of the
proceeding. The fact of disagreement on the best, most efficient, cost-effective approach for
transferring PSCos assets to Boulder and establishing interconnection points is not reason to
dismiss the Application as incomplete or deficient.

It is precisely the reason why a

proceeding on the merits of Boulders Application is necessary. Finally, the power supply
issue, included in the Application, can be decided by the Commission independent of the
proposed transfer of assets and interconnection plan. There is simply no basis to dismiss the
Application in its entirety. Rather than prejudge the outcome, the Commission should reject
Staffs Response, deny PSCos Motion, and consider Boulders Application on its merits so
as to harmoniously balance the Citys constitutional home rule authority and the
Commissions oversight over public utility service in Colorado.
Having addressed the substantive issues raised in Staffs Response, Boulder requests
that Staffs Response be stricken to the extent that it requests determinations of questions of
law. Staffs requested determinations of questions of law, which are allowed pursuant to
Colorado Rules of Civil Procedure, Rule 56(h), are properly filed after the last required
pleading and may only be granted if there are no genuine issues of material fact. In seeking
such determinations from the Commission, Staffs Response is distinguishable from a motion
to dismiss. The Commission should strike those portions of Staffs Response that go beyond
simply supporting PSCos Motion to Dismiss.
Staff, like PSCo, has failed to identify a viable reason for the Commission to
determine the Application is incomplete. Boulders Application meets all of the requirements
necessary to be deemed complete under Rule 1303(c), as was discussed in the Citys
Response in Opposition to PSCos Motion to Dismiss. The Application seeks Commission
approval of the transfer of assets under Rule 3104, and provides the information required by

that rule. The Application is consistent with, and in fact honors the Commissions Decisions.
The Application presents issues that are within the Commissions jurisdiction to consider and
allows the Commission to strike a balance between the Citys home rule power 3 and the
Commissions need to protect substantially adequate utility service throughout the state. 4
Nothing in the Application interferes with the Commissions duty or ability to ensure the
provision of safe and reliable service. On the contrary, Boulder presents a proposal for doing
just that.
Staffs response also constitutes an impermissible de facto rulemaking by offering a
new interpretation of Commission Rule 1303(c) that would permit intervenors to move to
dismiss applications as incomplete. By submitting a response in support of PSCos Motion
rather than an independent finding on the completeness of Boulders Application, Staff
impermissibly cedes its role as the exclusive advisor to the Commission regarding an
applications completeness to PSCo and any and all future intervenors in application
proceedings. This would disrupt the Commissions practice and impermissibly modify the
Commissions rules outside the context of a rulemaking proceeding.
The great irony here is that while Staff believes that the Commission may dictate the
facilities Boulder may seek to condemn, and how and the extent to which the City may use
PSCos facilities notwithstanding the Commissions limited authority over municipal utilities
and the Citys independent Constitutional authority, Staff apparently also believes the
Commissions statutory authority to dictate to PSCo what it must do with its facilities is
limited by the doctrine of regulated monopoly. Staff is wrong. The Commissions clear
statutory authority to determine the just, reasonable, safe, proper, adequate, or sufficient

COLO. CONST. ART. XX, 1 and 6; City of Ft. Morgan v. Colo. Pub. Utils. Comm'n, 159 P.3d 87, 95 (Colo.
2007) (The constitutional and statutory provisions strive to ensure that public utility service is substantially
adequate across Colorado, while not disturbing home rule power any more than necessary to accommodate the
state interest expressed in the constitution and statutes.).
4
COLO. CONST. ART. V, 35; COLO. CONST. ART. XXV; 40-5-101, -102, C.R.S.

rules, regulations, practices, equipment, facilities, services, or methods to be observed,

furnished, constructed, enforced, or employed by public utilities like PSCo is not constrained
by the doctrine of regulated monopoly. Ultimately, Staffs arguments lack legal support,
collaterally attacks the Commissions Decisions, and defies common practice.

Staffs

arguments must be rejected.

II.
A.

ARGUMENT

THE DETERMINATIONS OF LAW SOUGHT BY STAFF ARE

CONTRARY TO COLORADO LAW AND TO THE COMMISSIONS
DECISIONS.
In its Response, Staff misapprehends and drastically overextends the doctrine of

regulated monopoly and, in so doing, seeks determinations from this Commission that are
contrary to Colorado law and to the Commissions Decisions. These legal determinations
would materially limit the Commissions statutory authority over the facilities and services of
public utilities and are contrary to both C.R.S. 40-4-101(1) and 40-4-105. If anything, the
requests underscore the importance of a robust evidentiary record in this proceeding, and
argue against dismissing the Application.
At its heart, Staffs Response requests that this Commission adopt, as a matter of law,
Staffs unsupported interpretation of what it means to provide service. As Staff sees it, any
intrusion whatsoever into the ownership or operation of facilities used in providing service to
customers is impermissible. Staffs approach allows no room for the joint use of facilities,
the contracting of services, or even a home rule citys ability to exercise its constitutional
rights. Indeed, this approach ignores the law, the Commissions Decisions, common practice
in Colorado (including PSCos), and even offends the foundational underpinnings of the
doctrine of regulated monopoly.

1.

The Citys Proposed Joint Use of Facilities Through Its Distribution

Wheeling Arrangement Is Consistent with the Commissions
Decisions, Honors the Doctrine of Regulated Monopoly and Is
Commonplace.

The Commission has the authority to determine the just, reasonable, safe, proper,
adequate, or sufficient rules, regulations, practices, equipment, facilities, services, or methods
to be observed, furnished, constructed, enforced, or employed and to fix the same by order,
rule or regulation.5 Further, the Commission has the authority to order that one utility may
use the equipment and facilities of another utility, especially if the public utilities are unable
to agree on the terms and conditions of such use.6 The statute governing joint use, C.R.S.
40-4-105 reads in pertinent part:
(1) Whenever the commission, after a hearing upon its own
motion or upon complaint of a public utility affected, finds that
the public convenience and necessity require the use by one
public utility of the conduitswires, poles other equipment,
or any part thereof on, over, or under any street or highway that
belongs to another public utilityand that such use will not
result in irreparable injury to the owners or other users of such
conduitswires, poles or other equipmentor in any
substantial detriment to the service, and that such public
utilities have failed to agree upon such use or the terms and
conditions or compensation for the same, the commission by
order may direct that such use be permitted and prescribed
reasonable compensation and reasonable terms and conditions
for the joint use.
The statute grants the Commission authority to order PSCo to share facilities with the
City of Boulder if the Commission were to determine that such an arrangement was just and
reasonable. When taken together, C.R.S. 40-4-101(1) and 40-4-105 argue against Staffs
position that the Commission has no authority to order PSCo to share facilities with the City
if the Commission determines that joint use is appropriate. The Commission should not
restrict its own authority in this case or going forward in the manner suggested by Staff.
Furthermore, Staffs assessment entirely ignores that the Commissions Decisions

5
6

C.R.S. 40-4-101(1).
C.R.S. 40-4-105(1).

specify the need for the Commission to investigate and determine how the facilities should
be assigned, divided, or jointly used to protect the systems effectiveness, reliability, and
safety[.]7 That is, the Commission specifically contemplated the Citys acquisition or joint
use of PSCos facilities outside of the city. Staffs proposal would strip the Commission of
the authority to do exactly what it said it would do in its prior rulings.
Utilities in Colorado, including PSCo, routinely enter into joint use arrangements.
Colorado utilities also routinely contract with third parties to provide generation,
transmission, and distribution services, such as vegetation management and the installation of
distribution lines.

This is arguably why the Commissions Decisions specifically

contemplate a joint use arrangement between the City and PSCo. To assert that joint use is
categorically prohibited is not only contrary to Colorado statutory law, but could also be
interpreted as an improper collateral attack on the Commissions Decisions.
The Application, like the Commissions Decisions, fully honors the doctrine of
regulated monopoly, as well as its foundational roots of avoiding the unnecessary duplication
of facilities.

Those decisions focused on the Citys plan, at that time, to acquire the

certificate of public convenience and necessity to serve customers outside its jurisdictional
boundaries. The City is no longer seeking to acquire the CPCN to serve customers outside
the City nor does it propose having a service relationship with retail customers outside the
City. Staff, too, recognizes that from the interests of efficiency and cost, [a]voiding the
needless duplication of utility facilities is generally understood to be one of the reasons
behind the doctrine of regulated monopoly.8
Indeed, the Citys proposed distribution wheeling arrangement presents Boulders

Decision No. C13-1350 at 28 (emphasis added); see also, Decision No. C13-1550 at 19, which provides,
Performance of the Commissions duty to ensure the ability of the system for unincorporated Boulder County
and other regions of the state requires an evaluation and determination of the optimal division, joint use, and
potential replacement of assets and facilities providing services both inside and outside Boulder city limits.
(Emphasis added).
8
Staffs Response, pp. 6-7.

proposal for an efficient and logical use of the distribution facilities and interconnection,
designed to comply with the Commissions Decisions and to enable PSCos continued
provision of retail service to PSCos customers in PSCos service territory.
In this proceeding, one of many questions before the Commission will be the
appropriate degree of joint use. The Commission should deem the Application complete,
permit the parties to develop a robust evidentiary record, and apply the facts of the case to the
prevailing legal standard to reach a determination on the merits of Boulders Application.
2.

The Citys Proposed Joint Use of Facilities Through Its Distribution

Wheeling Arrangement Does Not Obstruct PSCos Customer
Relationships.

Boulders proposed distribution wheeling arrangement was designed in large measure

to enable PSCos continued ability to serve its retail customers within its service territory. If
Boulders Application is approved by the Commission, Boulder will strive to work with
PSCo to develop a transition plan that permits Boulder Light & Power to begin operations in
a manner that is seamless and transparent to customers. In the course of developing the
transition plan, Boulder would anticipate developing a contract with PSCo by which it would
provide certain services to PSCo. Those services would include regular maintenance and
repair of the facilities owned by Boulder over which PSCo would wheel power to its retail
customers. Contrary to Staffs assertions,9 the Citys ownership of limited distribution assets
outside the City and contractual arrangement with PSCo to provide certain aspects of
operating and maintaining the distribution assets does not constitution serving PSCos retail
customers.
Staffs position, that this contractual relationship somehow obstructs PSCos
customer relationships, is wrongheaded. It relies on the assumption that because Boulder will
be responsible pursuant to a Commission-approved and fully regulated contract or tariff for

Staffs Response, p. 5.

facilities maintenance, vegetation management, outage restoration and the like, PSCo will
lack control whatsoever on what Boulder does or does not do in carrying out its
responsibilities. PSCo entering into a Commission-approved and fully regulated contract
with the City for these services does nothing to deny PSCo its rights. Consider the fact that
PSCo regularly outsources responsibility for these tasks to independent contractors under
contracts that are not Commission-regulated. No one would assert that if PSCo entered into a
contract with a vegetation management company that it wasnt serving its customers. No one
would assert that if PSCo purchased generation or transmission from a third party that it
wasnt serving its customers. No one would assert that if PSCo relied on a fringe service
agreement to use another utilitys distribution network in times of outages or emergencies it
wasnt serving its customers. Under those circumstances, the third party merely acts as
PSCos agent. Under the proposed arrangement included in the Application, PSCo will still
be the serving utility, will still supply all electricity, will still send the customer bills, will still
receive payments, will still be directly responsible for the vast majority of the facilities used
that serve that customer, will still make available demand side management programs for
those customers and will still be responsible for managing the third-party contractors,
including the City of Boulder, that PSCo relies upon to ensure that reasonable electric service
is delivered. If the Commission were to adopt Staffs position on the doctrine of regulated
monopoly as a matter of law, there could no longer be a place for the contracting out of
services.
In this proceeding, one question before the Commission will be the appropriate degree
to which PSCo and Boulder should contract for services. This requires a factual debate.
What cannot be disputed, as a matter of law, is that the mere fact that some portion of the
utility service is proposed to be provided via a third-party contract does not cause a public
utility to no longer serve its customer.

Further, there can be no dispute of the

Commissions own authority under Colorado law to determine the just, reasonable, safe,
proper, adequate, or sufficient rules, regulations, practices, equipment, facilities, services, or
methods to be observed, furnished, constructed, enforced, or employed by public utilities
like PSCo.10
B.

THE COMMISSION CAN AND SHOULD STRIKE A HARMONIOUS

BALANCE BETWEEN THE COMMISSIONS OVERSIGHT OVER
PUBLIC UTILITY SERVICE IN COLORADO AND BOULDERS
CONSTITUTIONAL HOME RULE AUTHORITY.
1.

The Commission Can Continue to Ensure the Delivery of Safe and

Reliable Service at Just and Reasonable Rates.

As proposed in Boulders Application, the Commission would continue to exercise

its constitutional duty to ensure safe and reliable service and to safeguard the integrity of the
statewide system.11 Boulder is specifically seeking this Commissions directive, through a
ruling on the Citys prayer for relief, regarding the best approach to ensuring a safe, reliable,
efficient, and cost-effective means for transferring assets, providing for interconnection, and
enabling the City and PSCo to serve their respective customers. The Citys request and
proposal falls squarely within the Commissions jurisdiction and exercise of its regulatory
duties.
Boulder has proposed that it would return to the Commission for its review and
approval of the distribution wheeling rate.

The Commissions decision in that future

proceeding, based on costs necessary to provide distribution wheeling service, would be the
rate Boulder would be permitted to charge PSCo.
Boulder has also proposed that it return to the Commission for its review and
approval of a transition plan to enable a seamless transition of service. The details of the
transition plan, as well as distribution wheeling rate, will only be worked through once the
Commission makes its determination with regard to the assets Boulder has proposed be

10
11

C.R.S. 40-4-101(1).
Staffs Response, p. 9.

10

transferred to the City, as well as the manner in which the PSCo system and the Boulder
Light & Power system are interconnected. Boulder appreciates Staffs concern that the
Commissions role in determining safe and reliable service and to safeguard the integrity of
the statewide system be maintained. The Application, as well as Boulders proposal for
future proceedings before the Commission, does just that.
In addition to its role regulating Colorados electric utilities, the Commission has
another role to play in this proceeding: ensuring that Boulders constitutional right to
condemn facilities as part of its home rule authority is given due weight. It is incumbent
upon the Commission to strike a balance between these Constitution-based authorizations.12
That balance cannot be struck if the case is dismissed.
2.

Regardless of Staffs View of Boulders Proposed Distribution

Wheeling Arrangement, the Entire Application Should Not Be
Dismissed.

Despite Staffs concern with Boulders distribution wheeling proposal, Boulders

Application clearly seeks relief that the Commission is authorized to consider and grant.
There is no reason to dismiss the Application in its entirety.
First, a substantial portion of the assets proposed to be transferred13 are used primarily
to serve customers who are within the City limits. Neither PSCo nor Staff has raised any
arguments against the Commissions proceeding forward to examine whether these assets
may be transferred.
Further, if the Commission correctly concludes that it has the authority to order PSCo
and the City to share facilities, there are a host of alternative arrangements that may be
offered by intervenors for the Commissions consideration during the course of the

12

City of Ft. Morgan v. Colo. Pub. Utils. Comm'n, 159 P.3d 87, 95 (Colo. 2007) (The constitutional and
statutory provisions strive to ensure that public utility service is substantially adequate across Colorado, while
not disturbing home rule power any more than necessary to accommodate the state interest expressed in the
constitution and statutes.).
13
Direct Testimony of Thomas A. Ghidossi, Attachment TAG8.

11

proceeding.

The Commission could evaluate the different feeders, transformers, and

substations and decide that some should be owned by the City with PSCo paying to wheel
power to their customers and some should be owned by PSCo with the City paying to wheel
power.

The Commission could determine that additional points of interconnection and

separation should be established or that less sharing of facilities is appropriate. The City
believes that the evidence will show that all of these options are inferior to the Citys
recommended approach, but understands that the Application does not present the
Commission with a binary decision of granting the relief sought in its entirety or rejecting it
in its entirety.
Finally, the Citys requested relief regarding the power supply issue has nothing to do
with the issue of the proposed distribution wheeling arrangement and neither PSCo nor the
Staff raised any arguments in support of dismissing that portion of the Application.
In short, there is simply is no basis to dismiss the Application in its entirety regardless
of how the Commission feels about the proposed distribution wheeling arrangement. Having
responded to the substantive issues raised in Staffs Response, Boulder will address the
procedural problems with Staffs Response.
C.

STAFFS RESPONSE SHOULD BE CONSTRUED AS A MOTION FOR A

DETERMINATION OF A QUESTION OF LAW AND SHOULD BE
STRICKEN.
Staff has not simply responded to PSCos Motion to Dismiss. Rather, Staff has

requested that the Commission make four determinations of law.14 Determinations of law are
made pursuant to Rule 56(h) of the Colorado Rules of Civil Procedure. Unlike motions for

14

Staff requests that the Commission find as a matter of law: (1) the Citys proposed provision of distribution
wheeling services to PSCo for PSCo to serve PSCos customers in PSCos service territory, constitutes
Boulders proposed provision of electric utility services to customers in unincorporated Boulder County, Staffs
Response, p. 2;.(2) Boulders performance of certain activities over City-owned distribution facilities
including maintenance, upgrades, and vegetation management renders the City a provider of utility services
for [customers in unincorporated Boulder County], Staffs Response, p. 5; (3) the doctrine of regulated
monopoly applies to a utilitys relationship with its customers, Trial Staffs Response, pp. 3-6; and (4) Boulders
ownership and control over distribution assets used to deliver electricity to PSCos customers constitutes the
provision of service to these customer under the doctrine of regulated monopoly, Staffs Response, pp. 4-5.

12

summary judgment, which may be filed after 21 days from the commencement of the action,
motions for determination of a question of law are allowed after the last required pleading
and may only be granted if there are no genuine issues of material fact.15 In seeking such
determinations from the Commission, Staffs Response is distinguishable from a motion to
dismiss.16 The Commission should strike those portions of Staffs Response that go beyond
simply supporting PSCos Motion to Dismiss.
D.

STAFFS RESPONSE IS DEFICIENT.

Like PSCos Motion to Dismiss, Staffs Response suffers from several defects.
1.

Staff Fails to Identify a Viable Reason for a Determination of

Incompleteness.

First, Rule 1303(c) was never intended to be used as the basis for a motion to dismiss.
It is an administrative task assigned to Staff. Staff is required to make a determination of
completeness, not of the law or the merits of the case. In fact, Rule 1303(c) states explicitly
that a determination of completeness is not a decision on the merits of the application.
Second, like PSCo, Staff errs in neglecting to cite any Commission rules that Boulder
has not met or required information that Boulder has not provided. To the contrary, the
Citys Application is complete and fully compliant with the Commissions rules and
decisions. Rule 1303 sets forth the test for whether an application is complete. Specifically,
to be deemed complete an application must state the relief requested, identify all applicable
requirements of Commission rule and decision(s), and address each of those respective
requirements.17 Boulder has fully complied with these requirements. In its Application and
supporting testimony and exhibits, the City provided its prayer for relief, identified pertinent

15

C.R.C.P. Rule 56(h).

Boulder maintains that PSCo did not file a proper motion to dismiss pursuant to the requirements of Rule
12(b). PSCo filed its Motion, not pursuant to Rule 12(b) (e.g., failure to state a claim), but instead based on the
Commission rule that dictates the process by which Commission staff determines whether an application is
complete.
17
4 C.C.R. 723-1-1303(b).
16

13

statutes and rules, including 40-5-101(b) and 40-5-105, C.R.S., and Commission Rule
3104, governing applications for the transfer of assets,18 and addressed those requirements
throughout its filing. Staff does not argue that the City failed to meet the requirements of
Rule 3104 or address each of the respective requirements of Rule 3104. Instead, like PSCo,
Staff distorts the requirements of the Commissions Decisions. There is nothing in the
Commissions Decisions that creates an additional requirement for completeness based on the
common law doctrine of regulated monopoly. Perhaps more to the point, the Commissions
Decisions did not provide that certain methods of assigning, dividing or jointly using
facilities were prohibited by the doctrine. To the contrary, the Commissions Decisions
specifically contemplate the Commissions ability to investigate and determine how the
facilities should be assigned, divided, or jointly used to protect the systems effectiveness,
reliability, and safety[.]19 That is precisely what the City has proposed.

Staffs argument

overlooks the clear language of the Commissions Decisions and could be seen as an
impermissible collateral attack on those Decisions.
If the Commission treats Staffs Response as a Rule 12(b) motion to dismiss, to
prevail, Staff must bear a very heavy burden (i.e., the Commission must accept all assertions
of material facts made by the City as true, and the Commission must deny a motion to
dismiss unless it appears beyond doubt that the Applicant cannot prove facts in support of the
Application that would entitle Applicant to relief).20 Neither Staff nor PSCo address this
standard.

For Staffs part, by framing its concerns about Boulders proposal as a

18

4 C.C.R. 723-3-3104.
Decision No. C13-1350 at 28 (emphasis added); see also, Decision No. C13-1550 at 19, which provides,
Performance of the Commissions duty to ensure the reliability of the system for unincorporated Boulder
County and other regions of the state requires an evaluation and determination of the optimal division, joint use,
and potential replacement of assets and facilities providing services both inside and outside Boulder city
limits. (Emphasis added.)
20
In Re Eady, 04A-007CP, 2004 WL 729310 (Mar. 12, 2004) (para. 12) (Emphasis added) (citations omitted),
citing Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 911 (Colo. 1996).
19

14

completeness issue, Staff deprives Boulder of the benefit and protections afforded to the City
by the Commissions rules.21
Because Staff ignores critical language from the Commissions Decisions, the Staffs
support for dismissal on the basis of completeness is baseless and should be rejected. The
Commission should deem Boulders Application complete and defer consideration on its
substantive merit until parties can develop their positions through discovery and the
Commission has before it the evidentiary record it needs to rule on Boulders prayer for
relief.
2.

Staffs Response Constitutes a de facto Rulemaking.

While piggybacking on PSCos claim of incompleteness under Commission Rule

1303(c), Staff voluntarily and improperly cedes Staffs authority as the exclusive advisor to
the Commission of completeness to PSCo and any other party in any future proceeding
before the Commission.
Rule 1303(c)(II) provides in pertinent part:
Commission staff shall evaluate the application and prepare a
recommendation regarding completeness. Not more than ten days after the
filing of an application, Commission staff may send the applicant and its
attorney written notification concerning any specific deficiencies of the
application regarding its completeness[.]22
This is a clearly an administrative task that is to be performed by Staff. There is no evidence
in the rule that any other entity may participate in this threshold determination.23
By supporting PSCos challenge of completeness instead of following the process
contemplated by the rules, Staff is, in effect, voluntarily ceding its unique role and authority

21

It should be noted, too, that it is generally plaintiffs that are afforded the protection of these burdens
applicable to motions to dismiss. Indeed, in the Commissions rules, the procedures for motions to dismiss
follow the procedures for complaints with no mention of being applicable to applications, as well.
22
4 C.C.R. 723-1-1303(c)(II) (Emphasis added).
23
Notably, Staff did not send Boulder written notification of any alleged deficiencies in the Application. While
such notification is permissive, it is notable that Trial Staff has still not stated in its Response the manner in
which the application is deficient, opting rather to file a motion for determination of law before the proceeding
is at issue.

15

to PSCo, and arguably any other party interested in challenging the completeness of any
future application. In addition to eviscerating Staffs role, this disrupts the Commissions
practice, and also impermissibly modifies the Commissions rules outside the context of a
rulemaking proceeding. Creating or changing Commission rules may only take place in the
context of a rulemaking, and de facto rulemakings cannot be shoehorned into an adjudicated
proceeding.24
3.

The Arguments in Trial Staffs Response More Properly Belong in

Motions in Limine or in Its Answer Testimony

By not directly bringing the concerns about any deficiencies in the Application to
Boulders attention, Staffs Response denies Boulder the opportunity to cure or even consider
modifications to the Application that may satisfy Staffs concerns as is permitted under Rule
1303. If Staffs concerns are not with the completeness of the application, but rather, with
the substance of the proposal contained within the Citys Application, those concerns would
generally be addressed within the context of a proceeding, rather than by jettisoning the
proceeding altogether before the merits can be vetted.
The process demanded by Staff, dismissal and refiling, would substantially prejudice
the City. The City has made a good faith effort to comply with the Commissions Decisions
by presenting its best path forward to enable it and PSCo to serve their respective customers
with electric utility services safely, reliably, and cost-effectively. Whether the Application
and the requested prayer for relief carry the day is a question for the Commission at the
conclusion of this proceeding, but neither PSCo nor Staff have presented any compelling
reason for Boulder to be denied its day in court. Boulders proposal should be considered on
its merits.

24

Home Builders Assn of Metro. Denver v. Public Util. Commn, 720 P.2d 552 (Colo. 1986); see also Colo.
Office of Consumer Counsel v. Mountain States Tel. and Tel. Co., 816 P.2d 278 (In general, agency proceedings
that primarily seek to or in effect determine policies or standards of general applicability are deemed rulemaking proceedings.).

16

III.

CONCLUSION

Whether or not the Commission ultimately approves Boulders Application as

proposed, there is no reason to dismiss the Application. Staff asks the Commission to decide
important legal issues without the benefit of any evidentiary record. Staffs support of an
intervenors right to challenge completeness is unprecedented and, if allowed, would open up
an entire new area of litigation before the commission. Moreover, staff has not identified a
single requirement of Rule 3104 that the City has failed to include in its Application, nor has
it cited to portions of the Commissions Decisions that require the City to provide additional
information with its application.

Boulders Application meets all of the requirements

necessary to be deemed complete under Rule 1303(c). The determinations of questions of

law sought by Staff are contrary to Colorado law and the Commissions Decisions,
collaterally attack the Commissions Decisions, and defy common practice. The Commission
should deem Boulders Application complete and defer consideration on its substantive merit
until parties can develop their positions through discovery and the Commission has before it
the evidentiary record it needs to rule on Boulders prayer for relief.
WHEREFORE, for the reasons set forth above, the City of Boulder, Colorado
respectfully requests that the Commission deny PSCos Motion to Dismiss and reject Staffs
Response in support thereof.
Respectfully submitted this 10th day of September 2015.
/s/ Debra S. Kalish
Debra S. Kalish #18858
Sr. Assistant City Attorney
Thomas A. Carr # 42170
City Attorney
City of Boulder
Box 791
1777 Broadway
Boulder, CO 80306 - 0791
Telephone: 303-441-3020
kalishd@bouldercolorado.gov
carrt@bouldercolorado.gov

17

Robert M. Pomeroy, #7640

Thorvald A. Nelson, #24715
Michelle Brandt King, #35048
Nikolas S. Stoffel, #44815
Holland & Hart LLP
6380 South Fiddlers Green Circle, Suite 500
Greenwood Village, CO 80111
Telephone: 303-290-1600
rpomeroy@hollandhart.com
tnelson@hollandhart.com
mbking@hollandhart.com
nsstoffel@hollandhart.com

ATTORNEYS FOR THE CITY OF

BOULDER

18

BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF COLORADO
DOCKET NO. 15A-0589E
CERTIFICATE OF SERVICE
I hereby certify that on this 10th day of September 2015, the foregoing THE CITY
OF BOULDERS REPLY TO STAFFS RESPONSE IN SUPPORT OF PUBLIC
SERVICE COMPANY OF COLORADOS MOTION TO DISMISS, was electronically
filed at the Colorado Public Utilities Commission through the Commissions e-filing system,
and thereby to be served electronically and automatically on any persons for whom such
automatic electronic filing is provided by the Commissions e-filing system in this docket on
this date.
**Matthew S. Larson
**Adam M. Peters
John Tayer

mlarson@wbklaw.com
apeters@wbklaw.com
john.tayer@boulderchamber.com

Boulder Chamber of Commerce

Boulder Chamber of Commerce
Boulder Chamber of Commerce

**Richard Fanyo
**Mark Valentine
**Cesilie J. Garles

rfanyo@duffordbrown.com
mvalentine@duffordbrown.com
cgarles@duffordbrown.com

CF&I Steel, L.P. /Evraz

CF&I Steel, L.P. /Evraz
CF&I Steel, L.P. /Evraz

Thomas A. Carr
Debra Kalish
David J. Gehr
Kathleen E. Haddock
Sandra M. Llanes
Michelle Brandt King
Thorvald A. Nelson
Nikolas S. Stoffel

carrt@bouldercolorado.gov
kalishd@bouldercolorado.gov
gehrd@bouldercolorado.gov
haddockk@bouldercolorado.gov
llaness@bouldercolorado.gov
mbking@hollandhart.com
tnelson@hollandhart.com
nsstoffel@hollandhart.com

City of Boulder
City of Boulder
City of Boulder
City of Boulder
City of Boulder
City of Boulder
City of Boulder
City of Boulder

**Richard Fanyo
**Mark Valentine
**Cesilie J. Garles
**Nancy Schartz

rfanyo@duffordbrown.com
mvalentine@duffordbrown.com
cgarles@duffordbrown.com
nschartz@duffordbrown.com

Climax Molybdenum Company

Climax Molybdenum Company
Climax Molybdenum Company
Climax Molybdenum Company

Todd Lundy
**Anne Botterud
**Scott Dunbar
Gene Camp
Sharon Podein
Stephen Brown
Paul Caldara
Ron Davis
Ellie Friedman

todd.lundy@state.co.us
anne.botterud@state.co.us
scott.dunbar@state.co.us
gene.camp@state.co.us
sharon.podein@state.co.us
stephen.brown@state.co.us
paul.caldara@state.co.us
ron.davis@state.co.us
ellie.friedman@state.co.us

CPUC/Commission Counsel
CPUC/Trial Staff
CPUC/Trial Staff
CPUC/Trial Staff
CPUC/Trial Staff
CPUC/Trial Staff
CPUC/Advisory Staff
CPUC/Advisory Staff
CPUC/Advisory Staff

Jacqueline Thaler
Ann C. McEvily

jthaler@us.ibm.com
amcevily@us.ibm.com

IBM
IBM

19

**Ray Gifford
**Caitlin M. Shields
John M. Dorsey

rgifford@wbklaw.com
cshields@wbklaw.com
Jdorsey6224@msn.com

IBM/Leave BoCo Out

IBM/Leave BoCo Out
Leave BoCo Out

**Gregory E. Bunker
**Thomas Dixon
**Ron Fernandez
**Tim Villarosa
**Cindy Schonhaut

gregory.bunker@state.co.us
thomas.dixon@state.co.us
ron.fernandez@state.co.us
tim.villarosa@state.co.us
cindy.schonhaut@state.co.us

OCC
OCC
OCC
OCC
OCC

Randolph W. Starr

randy@starrwestbrook.com

PVREA

William Dudley
Robin Knittel
Judy Matlock

bill.dudley@xcelenergy.com
Robin.Kittel@ xcelenergy.com
Judith.Matlock@dgslaw.com

Public Service
Public Service
Public Service

**Thomas J. Dougherty

tdougherty@lrrlaw.com

Tri-State.

**Karl F. Kumli, III

**Robyn W. Kube
**Mark D. Detsky
Gabriella Stockmayer

karlk@dietzedavis.com
rkube@dietzedavis.com
mdetsky@dietzedavis.com
gstockmayer@dietzedavis.com

University of Colorado
University of Colorado
University of Colorado
University of Colorado

/s/ Sarah Bennett

** DENOTES PERSONS ELIGIBLE TO RECEIVE CONFIDENTIAL PROPRIETARY INFORMATION PURSUANT TO THE COMMISSIONS RULES ON
CONFIDENTIALITY, 4 CCR 723-1100-1102

20