State v. Iowa Public Service Co.

454 N.W.2d 585, 112 P.U.R.4th 544, 1990 Iowa Sup. LEXIS 96, 1990 WL 48908
CourtSupreme Court of Iowa
DecidedApril 18, 1990
DocketNo. 89-214
StatusPublished

This text of 454 N.W.2d 585 (State v. Iowa Public Service Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Iowa Public Service Co., 454 N.W.2d 585, 112 P.U.R.4th 544, 1990 Iowa Sup. LEXIS 96, 1990 WL 48908 (iowa 1990).

Opinion

ANDREASEN, Justice.

Both the Iowa Department of Transportation (DOT) and the Iowa Utilities Board are given broad statutory powers and duties. The DOT is responsible for the planning, development, regulation, and improvement of transportation. Iowa Code § 307.2 (1985). The DOT’s director is responsible for the planning, design, construction, and maintenance of the state primary highways. Iowa Code § 307.24. The director is authorized to adopt rules as are necessary for the administration of the DOT and the exercise of the director’s and the DOT’s powers and duties.

The utilities board, under the department of commerce, is directed to regulate and supervise public utilities operating in this state, including the regulation of rates and services furnishing gas and electricity to the public. Iowa Code § 476.1. The board has broad power to establish needful, just, and reasonable rules to govern the exercise of its powers and duties. Iowa Code § 476.2. Both agencies have adopted extensive rules and regulations to carry out their statutory duties.

Here we must determine if a public utility, who complied with the rules and regulations of the utilities board, must also comply with the rules and regulations of the DOT when constructing electric lines and gas pipelines within state highway right-of-way.

Iowa Public Service Company (IPS) constructed in 1985 a gas pipeline in the right-of-way of state highway 12 within the city limits of Akron, Iowa. The main pipeline runs approximately parallel to the roadway. A gas service connection crosses under the roadway at a right angle. The pipeline is buried only two feet deep at some points. Prior to construction, IPS obtained permits from the city and the utilities board and complied with their requirements.

IPS also installed in 1985 an underground electric line in the right-of-way of state highway 3 within the city limits of LeMars, Iowa. Part of the line runs approximately parallel to the roadway, but it crosses under the roadway at one point at a right angle. The electric line is not encased. Again, IPS obtained permits from the city and the utilities board and complied with their requirements.

IPS did not notify the DOT, seek a DOT permit, or comply with DOT rules governing the accommodation of utility use of highway right-of-way. Specifically, DOT [587]*587rules require gas pipelines to be buried at least three feet deep within highway right-of-way and at least four feet under the roadway itself. See Iowa Dep’t of Transp., Utility Accommodation Policy § 14-2(A) (1973) (incorporated by reference at 761 Iowa Admin.Code § 115.1). Electrical cable always must be buried at least four feet deep and generally must be encased. Id. at §§ 14-2(A), 16-1(C). DOT rules require utilities to obtain a DOT permit to install lines upon the highway right-of-way. Id. at §§ 9-1, 9-6.

The DOT brought an action against IPS seeking injunctive relief and a declaratory judgment concerning the failure of IPS to follow DOT rules. After trial, the district court denied the DOT’s request for a mandatory or prohibitory injunction based on the failure to obtain permits. The court did order IPS to remove or reconstruct the utility lines to comply with DOT rules, however. No declaratory judgment was issued. IPS appealed and the DOT cross-appealed.

The action was tried in equity. Thus, our review is de novo. Iowa R.App.P. 4. Since various statutes governing highways and utilities are involved, rules of statutory construction will guide us through the jurisdictional fog surrounding DOT and utilities board authority.

We begin with the undisputed propositions that the DOT exercises jurisdiction over all primary highways within the state and that state highways 12 and 3 are primary highways. See Iowa Code §§ 306.-3(2), 306.4(1). Since these highways pass within cities, the DOT shares concurrent jurisdiction with the cities of Akron and LeMars over these highways within city limits. Iowa Code § 306.4(3). Furthermore, the DOT has designated all primary highways “controlled access facilities” within the meaning of Iowa Code section 306A.3. 761 Iowa Admin.Code § 112.2(4) (1987). Although nothing in the record indicates the cities of Akron and LeMars have consented to this designation, IPS has admitted that highways 12 and 3 are controlled access highways within the city limits of Akron and LeMars. See Iowa Code §§ 306A.3, 306A.7. Although “controlled access highways,” these highways are not freeways or expressways within the meaning of Iowa Code section 306.1(2)(a).

We have held that chapter 306A, relating to controlled access highways, gives the DOT authority over the placement of utility lines along and upon interstate highways. Iowa Power & Light Co. v. Iowa State Highway Comm’n, 254 Iowa 534, 117 N.W.2d 425 (1962). We pointed out that we were dealing only with an interstate federal highway and our decision applied only to it, although logically it appeared the same reasoning would apply to any controlled access road. 254 Iowa at 538, 117 N.W.2d at 427. We now conclude, in light of special and later enacted statutes, that our reasoning cannot apply to the highways involved in this case. See Iowa Code § 4.7 (general and special provisions shall be construed to give effect to both but the special provision will prevail if they irreconcilably conflict); Iowa Code § 4.8 (later enacted statutes prevail over earlier statutes where they irreconcilably conflict).

In 1974, the legislature specifically addressed DOT authority to regulate construction of utilities within the highway right-of-way. See 1974 Iowa Acts ch. 1182, § 4 (codified at Iowa Code § 319.14 (1985)). The act prohibits persons from excavating, filling, or making any physical change within the right-of-way of a public road or highway without obtaining a permit from the proper highway authority. It requires work performed under the permit to conform with the specifications prescribed by the highway authority. If the work does not conform to specifications, the person must be notified to make the conforming changes. If the changes are not made, the authority may make the necessary changes and bill the person responsible for the costs. The act concludes: “Utility companies are exempt from the provisions of this section.” Iowa Code § 319.14.

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Related

Iowa Southern Utilities Co. v. Iowa State Commerce Commission
372 N.W.2d 274 (Supreme Court of Iowa, 1985)
Iowa Power & Light Co. v. Iowa State Highway Commission
117 N.W.2d 425 (Supreme Court of Iowa, 1962)
Hines v. Illinois Central Gulf Railroad
330 N.W.2d 284 (Supreme Court of Iowa, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
454 N.W.2d 585, 112 P.U.R.4th 544, 1990 Iowa Sup. LEXIS 96, 1990 WL 48908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-iowa-public-service-co-iowa-1990.