2025 CO 1
Holcim U.S. Inc., Petitioner-Appellant
v.
Colorado Public Utilities Commission, Eric Blank, Megan M. Gilman, and John Gavan, Respondents-Appellees:
and Black Hills Colorado Electric LLC and Office of the Utility Consumer Advocate. Intervenors-Appellees:
No. 24SA46
Supreme Court of Colorado, En Banc
January 13, 2025
Appeal
from the District Court District Court, City and County of
Denver, Case No. 22CV30911 Honorable Andrew J. Luxen, Judge
Attorneys for Petitioner-Appellant: Keyes & Fox, LLP Mark
T. Valentine Denver, Colorado
Attorneys for Respondents-Appellees: Philip J. Weiser,
Attorney General Paul C. Gomez, First Assistant Attorney
General Alex J. Acerra, Assistant Attorney General Denver,
Colorado
2
Attorneys for Intervenor-Appellee Black Hills Colorado
Electric LLC: Emanuel T. Cocian Greg E. Sopkin Denver,
Colorado
Taft
Stettinius & Hollister LLP Elizabeth M. Brama Valerie T.
Herring Denver, Colorado
Attorneys for Intervenor-Appellee Office of the Utility
Consumer Advocate: Philip J. Weiser, Attorney General Gregory
E. Bunker, Senior Assistant Attorney General II Thomas F.
Dixon, First Assistant Attorney General Denver, Colorado
JUSTICE GABRIEL delivered the Opinion of the Court, in which
CHIEF JUSTICE MARQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD,
JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER
joined.
3
OPINION
GABRIEL, JUSTICE
¶1
In this appeal taken pursuant to section 40-6-115(5), C.R.S.
(2024), the appellant, Holcim U.S. Inc., contends that the
Colorado Public Utilities Commission (the "PUC")
(1) set an unjust and unreasonable charge for electricity
over a five-day period because the charge allegedly had no
relationship to the electricity that Holcim used during that
period and disproportionately allocated utility costs to
Holcim and (2) committed a taking in violation of the Fifth
Amendment when it purportedly set an excessive charge for
Holcim without evidence that the charge reflected the cost of
service rendered by the electric utility, Black Hills
Colorado Electric LLC.
¶2
Applying the deferential standard of review that we afford
the PUC, we now conclude that the charge that the PUC imposed
was just and reasonable. We further conclude that although
Holcim did not adequately develop its takings claim, it did
present a due process claim. As to that claim, we conclude
that Holcim did not establish a violation of its due process
rights here.
¶3
Accordingly, we affirm the district court's judgment
upholding the PUC's determination in this case.
I.
Facts and Procedural History
¶4
From February 13 through February 17, 2021, Black Hills and
other utilities serving Colorado customers faced a severe
arctic cold weather event that came to
4
be called "Winter Storm Uri." During this weather
event, natural gas wells and production and processing
facilities in certain parts of the United States froze off,
taking a major portion of the nation's gas supply
offline. At the same time, the record-breaking cold
temperatures led to increased demand for natural gas.
¶5
To ensure sufficient natural gas supplies to allow it to
continue providing electric service to its customers during
the extreme weather event, on February 12, 2021, Black Hills
made spot market purchases for the four-day period beginning
on February 13 (Black Hills ultimately did not make any daily
gas purchases on February 16 for delivery on February 17).
Due to the extreme and persistent cold temperatures, Black
Hills made these purchases based on the highest of its
forecasted requirements for the ensuing four-day period.
¶6
The interplay of the extreme cold, freeze-offs of natural gas
production, and high customer demand for natural gas greatly
impacted natural gas prices during this period. Before
February 12, daily natural gas prices hovered around $3 per
dekatherm ("Dth"). During the day on February 12,
in contrast, daily prices for gas to be delivered on February
13 began spiking, resulting in midpoint settlement prices
ranging from $187.69 to $224.56 per Dth. Prices remained at
heightened levels through February 18.
¶7
As a result of these price increases, the average price that
Black Hills paid for its baseload and daily gas purchases for
Winter Storm Uri was $106.32 per Dth,
5
resulting in total natural gas costs of $23,188,089 for the
five-day period from February 13 through February 17, 2021.
Black Hills then sought to recover these extraordinary costs.
¶8
In order to mitigate "rate shock" to customers and
to assess whether Black Hills and other utilities prudently
incurred these kinds of extraordinary costs, the PUC ordered
the utilities to delay charging customers for their natural
gas purchases during the extreme weather event and to submit
an application to the PUC for approval of a cost recovery
method.
¶9
In accordance with the PUC's order, Black Hills filed a
verified application to recover the extraordinary costs that
it had incurred. PUC Trial Staff, the Colorado Office of the
Utility Consumer Advocate, and the Colorado Energy Office
then intervened as of right in the proceeding that Black
Hills had initiated, Holcim permissively intervened, and the
PUC referred the matter to an administrative law judge
("ALJ") for consideration.
¶10
Subsequently, all of the parties to the proceeding except
Holcim entered into a proposed settlement agreement, which
they presented to the ALJ for approval. This settlement
agreement proposed an Extraordinary Gas Cost Recovery Rider
("Recovery Rider") that would be charged to Black
Hills customers on a volumetric basis in the same way that
Black Hills's usual cost recovery method, the
"Energy Cost Adjustment" ("ECA"), is
applied to customers.
6
¶11
Black Hills ordinarily recovers its natural gas costs through
the ECA. The ECA is a volumetric charge applicable to all
rate schedules, meaning that Black Hills charges its
customers a uniform per-kilowatt-hour rate on their
electricity usage. In imposing this charge, Black Hills
directly passes on the costs of natural gas to customers and
does not profit from this pass through. This type of rate
structure is known as a "fuel adjustment clause,"
and it is common throughout the United States. See
Sandra L.K. Davidson, Annotation, Validity of "fuel
adjustment" or similar clauses authorizing electric
utility to pass on increased cost of fuel to its
customers, 83 A.L.R.3d 933, § 2(a) (1978); 64 Am.
Jur. 2d Public Utilities § 111 (2024).
¶12
The settlement agreement proposed that Black Hills would pass
the extraordinary gas costs that it incurred during Winter
Storm Uri on to its customers through a similar uniform
volumetric rate applicable to all rate schedules. The
principal difference was that Black Hills proposed to pass on
the extraordinary costs over a longer period of time.
Specifically, whereas under the ECA, Black Hills would have
passed these costs on to customers over a twelve-month
period, under the Recovery Rider, Black Hills would amortize
these costs over a two-year period, lessening the "rate
shock" that customers would have experienced had Black
Hills sought to recover the extraordinary costs over the
shorter period of time.
7
¶13
Holcim, which, at the time, was among Black Hills's
largest retail electric customers, alone opposed this
proposed settlement. In its view, the proposed Recovery Rider
would have required it to pay more than its fair share of the
costs associated with Winter Storm Uri because it claimed to
have conserved energy during that weather event and thus used
substantially less electricity during that period than it did
in the ensuing ten days. According to Holcim, this resulted
in almost $2.57 million in avoided fuel costs, exclusive of
carrying costs.
¶14
Holcim further claimed that applying a single volumetric rate
to it would be unfair and would violate the principle that
rates should be based on cost-causation principles to the
extent possible. A more equitable design, Holcim asserted,
would allocate the costs that Black Hills had incurred in
connection with the weather event based on the proportional
energy use of Black Hills's retail customers during that
event, as opposed to during the ensuing two years. Holcim
thus proposed an alternative rate design under which
volumetric rates would have varied by customer class (e.g.,
residential, small general service, large general service,
large power service, and lighting). Under Holcim's
proposal, approximately $2 million of Black Hills's
extraordinary costs would have shifted to the residential
class, while the costs to be paid by Holcim would have
decreased substantially.
¶15
The ALJ rejected Holcim's proposal, concluding that it
was not in the public interest. The ALJ reached this
conclusion for six primary reasons. First, the ALJ
8
observed that the PUC had previously decided that Black Hills
must recover fuel costs through the ECA, and the PUC had
suggested that a similar mechanism should be used to recover
the extraordinary costs incurred during Winter Storm Uri.
Second, adopting Holcim's approach would call into
question the ECA, which the PUC had already decided was in
the public interest. Third, the proceeding before the ALJ was
not a "Phase II rate proceeding," in which Black
Hills's costs would have been allocated based on a class
cost of service study and in which the rate would have been
determined based on such cost allocations. Here, the ALJ
noted, because no class cost of service study had been
conducted, there was no evidence from which the ALJ could
determine whether it would be proper to reallocate costs
between ratepayer classes. Fourth, the evidence did not
establish any efforts by Holcim to conserve electricity
during the weather event. Fifth, Holcim had proposed a rate
based on the principle of cost causation that applied only to
it, while failing to propose individual rates for other
ratepayers who had consumed less electricity than normal
during Winter Storm Uri. In the ALJ's view, such a result
would not be just and reasonable. Finally, Holcim's
approach would likely have required extending the
amortization period beyond two years, but, the ALJ noted,
this would not have been acceptable to Black Hills because it
would have extended Black Hills's carrying costs.
9
¶16
In contrast, the ALJ determined that the compromises reached
by the settling parties in the proposed settlement agreement
produced a just and equitable result for Black Hills, its
ratepayers, and the other parties to the proceeding. In
particular, the ALJ found that the Recovery Rider's
volumetric rate, as agreed to by the parties to the
settlement agreement, was just and reasonable.
¶17
Holcim then filed exceptions to the ALJ's ruling with the
PUC. In its exceptions, Holcim reiterated its argument that
the Recovery Rider did not reflect the costs of service and
was not just and reasonable because it resulted in
Holcim's paying over $2.6 million more than it believed
was appropriate based on its electricity usage during the
weather event. Holcim also argued, for the first time, that
the rate proposed in the settlement agreement and approved by
the ALJ amounted to an unconstitutional taking without due
process because, in Holcim's view, the ALJ's decision
was not supported by sufficient findings and explanation.
¶18
The PUC rejected Holcim's arguments and approved the
settlement agreement.
¶19
Regarding Holcim's contentions as to its electricity use
during the weather event, the PUC concluded:
Holcim's (or any individual ratepayer's) actual use
over [the weekend of the weather event] had no bearing on the
costs Black Hills incurred. The record indicates that Black
Hills went to market to procure natural gas based not on a
real-time assessment of use during the weekend, but rather
based on its two-day-ahead forecasts. Those forecasts were
completed before the weather event had begun.
10
Therefore, the record indicates that Holcim's actual
usage (or any other individual customer's actual usage)
was not a cause of Black Hills incurring the extraordinary
fuel costs. The determination to incur those costs had taken
place prior to and independent of Holcim's use during the
event.
. . . There was also no evidence that at any point prior to
or during the extreme weather event that Holcim notified
Black Hills that it was going to conserve energy. The record
shows that the expert witness Holcim hired did not know why
the company's usage was lower than might be projected for
that holiday weekend. And Staff and Black Hills witnesses
testified that it would be imprudent for Black Hills to
reduce the amount it was purchasing without firm indications
of how much conservation would be taking place. So, neither
Holcim's actual use nor its actions impacted Black
Hills' need to incur the extraordinary fuel costs.
(Footnotes omitted.)
¶20
Regarding Holcim's proposed rate structure, the PUC
concluded that Holcim's proposal would have constituted
an illegal preferential rate for Holcim, in violation of
section 40-3-106(1)(a), C.R.S. (2024).
¶21
Finally, the PUC considered and rejected each of Holcim's
constitutional claims. As to Holcim's takings claim, the
PUC concluded, contrary to Holcim's underlying premise,
that there is no constitutional right to a just and
reasonable rate. Even if there were, however, the PUC
concluded that the Recovery Rider did not violate any such
right. And as to Holcim's claim that its due process
rights were violated because the ALJ allegedly did not make
sufficient findings or provide sufficient reasons to support
his conclusions, the PUC determined that whatever
shortcomings Holcim perceived with the ALJ's decision,
the PUC had
11
remedied them by directly addressing Holcim's arguments.
Specifically, the PUC observed that it had explained why
Holcim's proposed rate design was unworkable and why the
Recovery Rider was appropriate. As a result, the PUC
concluded that Holcim was not deprived of any due process
rights.
¶22
Holcim then sought judicial review of the PUC's decision
in the district court, and that court ultimately affirmed the
PUC's decision. The court found, among other things, that
"a rate which treats all customers the same and reflects
cost causation, the total customer usage forecast, is just
and reasonable and is not arbitrary." Holcim U.S.
Inc. v. Colo. PUC, No. 22CV30911, at *11 (Dist. Ct.,
City &Cnty. of Denver, Dec. 17, 2023). In addition, the
court rejected Holcim's constitutional claims, finding
that Holcim had not shown how the PUC's ratemaking
constituted an unconstitutional taking and had not
established any violation of its due process rights.
Id. at *13-15.
¶23
Holcim now appeals to this court.
II.
Analysis
¶24
We begin by setting forth the applicable standard of review
and basic principles concerning the PUC's rate-making
authority. We then address whether the PUC adopted a just and
reasonable rate when it approved the Recovery Rider, and we
conclude that it did. Last, we consider and reject
Holcim's constitutional claims.
12
A.
Standard of Review and Applicable Legal Principles
¶25
Colorado law vests in the PUC the authority to regulate rates
charged by public utilities for service in this state. Colo.
Const, art. XXV; § 40-3-102, C.R.S. (2024). The PUC
"exists to protect consumers while affording monopoly
status to the utility provider. To further this purpose, and
pursuant to its constitutional and statutory mandate, the
Commission's essential function is to ensure that all
rate charges are fair and reasonable to ratepayers and the
utility." Pub. Serv. Co. of Colo. v. Pub. Utils.
Comm'n, 26 P.3d 1198,1204 (Colo. 2001).
¶26
Judicial review of PUC rate decisions is relatively narrow,
and courts extend considerable deference to the PUC's
factual determinations. CF&I Steel, L.P. v. Pub.
Utils. Comm'n, 949 P.2d 577,584 (Colo. 1997);
Colo.-Ute Elec. Ass'n v. Pub. Utils. Comm'n,
760 P.2d 627, 640 (Colo. 1988). In addition, this court has
recognized that "[r]ate making is not an exact science
but a legislative function involving many questions of
judgment and discretion." City of Montrose v. Pub.
Utils. Comm'n, 629 P.2d 619, 623 (Colo. 1981). Thus,
courts review PUC decisions solely to determine whether (1)
the PUC "has regularly pursued its authority,"
including a determination as to whether the PUC decision at
issue violates any rights of the petitioner under the United
States or Colorado Constitutions; (2) the PUC's decision
is "just and reasonable"; and (3) the PUC's
"conclusions are in accordance with the evidence."
§ 40-6-115(3).
13
¶27
Here, Holcim alleges that the Recovery Rider is not just and
reasonable because it does not charge Holcim for the actual
electricity that it consumed during the weather event.
Accordingly, we will focus on the "just and
reasonable" requirement.
¶28
In the context of reviewing a PUC rate-setting decision, we
explained:
Under the prevailing norms of utility regulation, rates are
to be set at a level that covers the utility's legitimate
costs and expenses in providing service to the public and a
reasonable rate of return on its investment. Accordingly, the
primary matters for PUC determination in the public interest
are: (1) sufficiency of the rates to recompense the utility
and maintain its operational viability for the purpose of
serving the public; and (2) distribution of the revenue
requirement between the various customer classes in a just
and reasonable manner.
CF&I Steel, 949 P.2d at 584; see also Pub.
Serv. Co. of Colo. v. Pub. Utils. Comm'n, 644 P.2d
933, 939 (Colo. 1982) (noting that "[t]he fixing of
'just and reasonable' rates involves a balancing of
investor and consumer interests" and that "[t]he
PUC must therefore set rates which protect both: (1) the
right of the public utility company and its investors to earn
a return reasonably sufficient to maintain the utility's
financial integrity; and (2) the right of consumers to pay a
rate which accurately reflects the cost of service
rendered").
¶29
We have also made clear that, "[s]ince rate setting is a
legislative function which involves many questions of
judgment and discretion, courts will not set aside the rate
methodologies chosen by the PUC unless they are inherently
unsound." CF&I Steel, 949 P.2d at 584;
see also Pub. Utils. Comm'n v. Nw. Water Corp.,
451 P.2d 266, 275 (Colo. 1969)
14
("[I]n a question of rate-making there is a strong
presumption in favor of the conclusions reached by an
experienced administrative body after a full hearing.")
(quoting Darnell v. Edwards, 244 U.S. 564, 569
(1917)).
¶30
"The objecting party has the burden of proving that the
PUC's decision is unlawful." CF&I
Steel, 949 P.2d at 585.
B.
The Recovery Rider Is Just and Reasonable
¶31
The first question before us is whether, in approving the
Recovery Rider, the PUC adopted a just and reasonable rate.
The question is not whether Holcim's alternative proposal
was reasonable or provided a preferable recovery method.
¶32
As noted above, a rate is just and reasonable when it
protects the right of utility customers to pay a rate that
accurately reflects the cost of service rendered, distributes
costs among the customer base in a just and reasonable
manner, and protects the utility's and its investors'
rights to earn a return that is reasonably sufficient to
maintain the utility's financial integrity. See
CF&I Steel, 949 P.2d at 584; Pub. Serv.
Co., 644 P.2d at 939. The Recovery Rider satisfies each
of these criteria.
¶33
The Recovery Rider accurately reflects the cost of service
because, as discussed above, the PUC concluded, with ample
record support, that Black Hills had purchased natural gas
based on total forecasted customer need, not based on
15
actual individual consumption during Winter Storm Uri. This
court has explained that "[a] major operating expense
which the PUC must necessarily consider in arriving at a just
and reasonable rate is the cost which [a utility] must pay to
acquire natural gas from their suppliers." Pub.
Serv. Co., 644 P.2d at 939. Here, Black Hills forecasted
its customer needs during Winter Storm Uri using
industry-standard methods that no party has contested.
Moreover, it appears undisputed that Black Hills's
natural gas purchases enabled it to provide to its customers
uninterrupted service at normal usage volumes throughout the
weather event, which was the very purpose for Black
Hills's advance purchases. Accordingly, we conclude that
the PUC reasonably determined that the Recovery Rider
accurately reflects the cost of service rendered during
Winter Storm Uri.
¶34
We further conclude that the Recovery Rider distributes costs
among Black Hills's customer base in a just and
reasonable manner. As noted above, Black Hills incurred the
extraordinary costs at issue based on its total forecasted
load, to ensure that all of its customers had access to their
normal volume of electricity during the storm; Black
Hills's costs were not based on any individual
customer's actual consumption during the storm. Black
Hills then proposed distributing the costs that it had
incurred on a volumetric basis applicable to all rate
schedules. This, in turn, would allow Black Hills to recover
the extraordinary costs that it had incurred in anticipation
of Winter Storm Uri in exactly the same way that it
16
recovers its normal fuel costs through the EC A, which method
the PUC has long determined is in the public interest.
Accordingly, in approving the cost recovery design that Black
Hills and the other parties to the settlement agreement had
proposed, the PUC applied the Recovery Rider among all of
Black Hills's customers in a just and reasonable manner.
¶35
On this point, as Black Hills and the PUC noted in their
briefing to us, the facts at issue in this case are in stark
contrast with the facts in City of Montrose v. Public
Utilities Commission, 590 P.2d 502, 504-05 (Colo. 1979).
There, we determined that a utility's action in imposing
on municipal, but not non-municipal, residents the costs of
utility franchise charges was unjust and discriminatory
because it resulted in municipal customers subsidizing and
paying higher rates than non-municipal customers who were
receiving the same service. Id. Here, in contrast,
Black Hills's customers will be charged an
identical rate, and customers' ultimate billing
will appropriately be based on their individual usage.
See Integrated Network Servs., Inc. v. Pub. Utils.
Comm'n, 875 P.2d 1373, 1383-84 (Colo. 1994)
(distinguishing City of Montrose on the ground that,
unlike in that case, the rates ordered to be paid by the
petitioning parties in the case before the court would be
"charged based upon usage," and no evidence showed
that the petitioning parties would be subsidizing other
customers).
17
¶36
Finally, no party has asserted that the Recovery Rider fails
to provide Black Hills with a reasonable rate of return, and
given that Black Hills agreed to the Recovery Rider in the
settlement agreement, we presume that it was satisfied with
the rate of return provided thereby.
¶37
For all of these reasons, we conclude that the rate
established by the Recovery Rider is just and reasonable.
¶38
We are not persuaded otherwise by Holcim's arguments that
the rate does not reflect "cost causation" and that
it charges Holcim a disproportionate amount.
¶39
For the reasons discussed above, the Recovery Rider
does reflect cost causation because Black Hills
incurred the costs at issue based on its total forecasted
load during the winter storm, and it is these costs that are
being passed through to Black Hills's customers. As the
PUC concluded below, Holcim's actual use during Winter
Storm Uri had no bearing on the costs that Black Hills had
incurred.
¶40
Moreover, Holcim has not established that the Recovery Rider
imposes disproportionate charges on it. Holcim's argument
in this regard appears to be based on its incorrect
assumption that the costs that Black Hills incurred were the
result of customers' actual usage during the storm. As
noted above, however, the costs at issue resulted from Black
Hills's forecasted needs, which were determined
prior to the extreme weather event.
18
¶41
Additionally, to the extent that Holcim is relying on its
claim that it had conserved electricity during the storm, as
the ALJ found, no evidence established that Holcim's
usage during the storm was reduced as a result of any
intentional conservation efforts on its part. Nor does any
evidence in the record show that Holcim advised Black Hills
in advance that it planned to lessen its electricity needs
during the storm, which could potentially have impacted Black
Hills's forecasted needs (as PUC Trial Staff and Black
Hills witnesses testified, however, absent an indication of
how much conservation would occur, it would have been
imprudent for Black Hills to reduce the amount of natural gas
that it was purchasing). Instead, Black Hills proceeded based
on its forecasts, and all Black Hills customers, including
Holcim, were able to satisfy their normal electricity needs
throughout the storm.
¶42
We are also unpersuaded by Holcim's apparent assumption
that the question of a just and reasonable rate turns
exclusively on the cost of service. As we said three decades
ago, "[W]hile cost-of-service may be a factor, it is
certainly not the exclusive factor to be considered in a
ratemaking decision of the PUC. Indeed, if such were the
case, the PUC would have little ratemaking discretion;
rather, it would become a rubber stamp relegated to examining
cost studies of utilities." Id. at 1383. Here,
the record demonstrates that the PUC considered all of the
relevant facts before it, including the parties' desires
to avoid "rate shock,"
19
ensure rate stability by maintaining a similar rate design
for similar costs, and provide for equal treatment of all of
Black Hills's customers. See id.
¶43
Finally, we note that Holcim cites no applicable authority
prohibiting the type of uniform, volumetric rate for the
recovery of fuel costs that the PUC imposed here. To the
contrary, Colorado utilities have used fuel adjustment
clauses like that at issue for at least fifty years. See
Colo. Energy Advoc. Off. v. Pub. Serv. Co. of Colo.,
704: P.2d 298, 300 (Colo. 1985). And other states'
courts that have considered challenges to similar rate
structures likewise have upheld them, further supporting our
conclusion that the PUC adopted a just and reasonable rate in
this case. See, e.g., Gulf Power Co. v. Fla. Pub. Serv.
Comm'n, 487 So.2d 1036,1036 (Fla. 1986);
Archer-Daniels-Midland Co. v. III. Com. Comm'n,
704 N.E.2d 387, 397 (Ill. 1998); City of Chicago v. III.
Com. Comm'n, 150 N.E.2d 776, 778-80 (Ill. 1958);
State ex rel. Utils. Comm'n v. Edmisten, 230
S.E.2d 651, 662-63 (N.C. 1976); City of Norfolk v. Va.
Elec. & Power Co., 90 S.E.2d 140,141,149-50 (Va.
1955).
¶44
For these reasons, we conclude that Holcim has not met its
burden of proving that the PUC's methodology was
"inherently unsound." CF&I Steel, 949
P.2d at 584. The PUC chose a rate that mirrors the structure
that has been used to recover fuel costs in Colorado and
throughout the United States for decades. Moreover, in
allowing Black Hills to recover its extraordinary fuel costs
while distributing those costs among all customers over a
two-year period via a uniform,
20
volumetric rate, the PUC reasonably balanced customer
interests, utility interests, and relevant factors such as
cost causation, avoiding "rate shock," and rate
stability.
¶45
Accordingly, we conclude that the Recovery Rider that the PUC
adopted in this case was just and reasonable.
C.
Holcim's Constitutional Claims
¶46
Holcim next purports to assert two constitutional claims.
First, it contends that the Recovery Rider constitutes an
unconstitutional taking in violation of the Fifth Amendment.
Second, Holcim argues that the PUC has violated Holcim's
due process rights because, it asserts, the PUC's
decision was not sufficiently supported by the evidence. We
are not persuaded.
¶47
Regarding Holcim's claim that the Recovery Rider
constitutes an unconstitutional taking, Holcim presents no
facts or law to support such a claim. Instead, it asserts, in
conclusory fashion, that the Recovery Rider is so
unreasonable that it constitutes a taking in violation of the
Fifth Amendment. Such a conclusory statement does not suffice
to develop a viable claim for appellate consideration, and we
therefore decline to address that claim. See, e.g., Comm,
for Better Health Care for All Colo. Citizens v. Meyer,
830 P.2d 884, 890 (Colo. 1992) (concluding that a claim was
not properly presented for appellate review when, among other
things, the party's arguments "were stated in
conclusionary form
21
[and] were not accompanied by citations to any
authority"); Middlemist v. BDO Seidman, LLP,
958 P.2d 486, 495 (Colo.App. 1997) (concluding that certain
claims were not properly presented for appeal when the
appellant had "fail[ed] to identify any specific errors
committed by the trial court. . . and provide[d] no legal
authority to support an allegation that the trial court erred
in making its rulings").
¶48
As for Holcim's due process claim, we note that in the
context of rate-making, the Supreme Court has stated,
"When the rate-making agency of the state gives a fair
hearing, receives and considers the competent evidence that
is offered, affords opportunity through evidence and argument
to challenge the result, and makes its determination upon
evidence and not arbitrarily, the requirements of procedural
due process are met. . . R.R. Comm'n v. Pac. Gas
& Elec. Co., 302 U.S. 388, 393-94 (1938). For the
reasons set forth at length above, we conclude that the PUC
has satisfied each of these requirements and that substantial
evidence in the record supported the PUC's decision.
¶49
Accordingly, Holcim has not established a violation of its
due process rights in this case.
III.
Conclusion
¶50
For these reasons, we conclude that, in approving the
Recovery Rider, the PUC set a just and reasonable charge for
the recovery of Black Hills's extraordinary
22
natural gas costs. We further conclude that Holcim has not
established either an unconstitutional taking or a violation
of its due process rights.
¶51
Accordingly, we affirm the district court's judgment
upholding the PUC's decision in this case.