Montana-Dakota Utilities Co. v. Montana Department of Public Service Regulation

752 P.2d 155, 231 Mont. 118, 45 State Rptr. 477, 1988 Mont. LEXIS 92
CourtMontana Supreme Court
DecidedMarch 11, 1988
Docket87-060
StatusPublished
Cited by4 cases

This text of 752 P.2d 155 (Montana-Dakota Utilities Co. v. Montana Department of Public Service Regulation) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Montana-Dakota Utilities Co. v. Montana Department of Public Service Regulation, 752 P.2d 155, 231 Mont. 118, 45 State Rptr. 477, 1988 Mont. LEXIS 92 (Mo. 1988).

Opinions

MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiff Montana-Dakota Utilities Company (MDU) appeals a December 7, 1986, judgment of the First Judicial District Court, Lewis and Clark County. The District Court upheld the decision of the Montana Public Service Commission (PSC), which reduced the coal expenses used by MDU in setting rates for Montana electric service. We affirm.

MDU raises three issues for our review:

1. Did the PSC err in adopting the “rate of return” method to determine the amount of MDU’s coal expense which could be passed through to Montana ratepayers?

2. Did the PSC err in applying the “rate of return” method to MDU’s coal expense?

3. Does the record support the PSC decision?

In September of 1983, MDU filed a request with the PSC for a $8,731,439 rate increase, using 1982 as the “test year.” As part of its supporting evidence, MDU reported a $15,622,000 expense for lignite coal used by MDU to generate electricity for Montana consumers. The coal expense was paid by MDU to Knife River Coal Mining Company (KRC). KRC is a wholly-owned subsidiary of MDU Resources Group, Inc., of which MDU is a division. The coal expense represented 100 percent of MDU’s coal purchases for 1982. MDU’s purchases represented 25 percent of KRC’s total coal sales for 1982.

Montana Consumer Counsel (MCC), the agency established to re[120]*120present ratepayers’ interests, contended that MDU’s coal expense should be reduced by $585,000. MCC’s expert witness, Dr. John Wilson, compared KRC to six natural resource companies which sold both coal and oil. Dr. Wilson testified that the six companies’ 1982 average rate of return on equity was 15 percent, while KRC’s rate of return on equity was 22 percent.

After hearing the arguments, the PSC disallowed $347,000 of MDU’s claimed coal expense. The PSC determined that KRC’s return rate of 22 percent was too high and “evaded the spirit of regulation.” However, the PSC found weaknesses in both MCC and MDU’s methods for calculating MDU’s coal expense. PSC determined MDU’s annual coal expense for ratemaking purposes by applying a hybrid rate of return of 14.565 percent to KRC on owner’s equity. To arrive at this percentage, the PSC calculated the rate of return for the six companies suggested by Dr. Wilson and one comparable company, Baukol-Noonan, Inc., suggested by MDU. The PSC then adjusted the rate of return to “normalize” KRC’s 1982 test year and also factored in KRC’s tax rate. The PSC calculated the rate of return on KRC’s total year-end equity, but limited its final adjustment to the 25 percent of KRC’s total sales to MDU. Thus, the PSC avoided regulating the price of coal charged by the subsidiary KRC, and yet fixed a fair price for coal expense to be incurred by MDU when considered for ratemaking purposes.

The PSC justified its calculation procedure in Finding 165:

“The classification of coal reserve operations as a nonutility or utility function becomes important to electric ratepayers due to the different ratemaking treatments afforded to the coal fuel expense. It is not clear to the Commission why coal reserves of Knife River Coal Company should be considered a nonutility function with its ratemaking treatment based on comparable profits and prices. Public utilities are required to provide service at the lowest reasonable rate, and the Commission is required to allow rates that reflect the lowest reasonable costs.”

Upon judicial review, the District Court found that the record supported the positions of both parties. However, the court concluded that the PSC “rate of return” analysis method was not an abuse of discretion and affirmed the PSC. The District Court noted that recent Montana Supreme Court decisions emphasize “the reasonableness of the price for coal paid by the parent to the subsidiary and not on the propriety of ratebasing the subsidiary.” (Emphasis added.) MDU appeals.

[121]*121Issue 1. Adoption of “rate of return” method.

MDU contends that PSC’s rate of return method is flawed because four of the six companies were not truly comparable to KRC. MDU argues that these companies deep-mined bituminous coal in the East, where the high overhead costs squeezed profit margins. MDU asserts that Baukol-Noonan, which earned a higher return than KRC, was the only company truly comparable to KRC.

On review of this issue, we note that the PSC is vested by statute with the duty to supervise and regulate the operations of public utilities and to see that their rates are “just and reasonable.” Section 69-3-330, MCA.

In determining what is just and reasonable, the PSC is not restricted to any single formula, if the method followed and the order entered “when applied to the facts and viewed as a whole do not produce an unjust or arbitrary result.” Montana-Dakota Utilities Co. v. Bollinger (Mont. 1981), [_ Mont. _,] 632 P.2d 1086, 1091, 38 St.Rep. 1221, 1227 (where the PSC reduced MDU’s coal expenses from KRC using Dr. Wilson’s rate of return method, but this Court remanded the case to the PSC to determine if a factual basis existed for the rate of return method).

The PSC has the power to adopt any non-arbitrary method it chooses. Bollinger, 632 P.2d at 1091. In the instant case, the PSC adopted Dr. Wilson’s method to compare KRC’s rate of return to the coal industry generally. Perfect comparisons are impossible because coal is not a fungible commodity. Coal has many variables such as density, latent BTU’s, sulphur content, debris, extraction costs, and transportation costs. At the delivery site, the coal consumer’s boilers must be custom-matched to the coal producer’s particular fuel. The comparable which could precisely correlate with the MDU-KRC rate of return does not exist. The PSC used similar comparables, then extrapolated the variables. In doing so, the PSC was simply trying to determine whether the coal expense paid by MDU was reasonable.

The PSC decision conforms to our past holdings on this issue. The PSC adopted a method which was far from perfect, but it was also far from arbitrary. In the balance, we find it was reasonable. We hold that the method was valid on its face and now move to the validity of its application.

Issue 2. Application of the method.

MDU contends that the PSC exceeded its jurisdiction when it ap[122]*122plied the rate of return method to KRC’s sales, thereby improperly treating KRC as part of MDU. MDU asserts that the PSC must limit its scrutiny to KRC’s sales to MDU and may not examine the other 75 percent of KRC sales. MDU further asserts that KRC’s most profitable sales were not to MDU, and therefore these other sales distorted the profit margins on sales to MDU.

In reviewing this issue, we note that the “interest of the PSC is to see that MDU does not reap an unfair profit on its investment in its subsidiary by allowing the subsidiary to overcharge the parent for coal when the coal expense will be passed on to the ratepayers.” Bollinger, 632 P.2d at 1089.

Contrary to MDU’s assertions, MDU’s coal purchases are at issue, not KRC’s coal sales. The key factor in the PSC’s examination was the extent to which KRC functioned as an organ of MDU.

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752 P.2d 155, 231 Mont. 118, 45 State Rptr. 477, 1988 Mont. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montana-dakota-utilities-co-v-montana-department-of-public-service-mont-1988.