OPINION
BRYNER, Justice.
I. INTRODUCTION
Twenty-five years after it created overlapping service territory between two utilities that later became the Tlingit-Haida Regional Electrical Authority (THREA) and the Alaska Power Company, the Alaska Public Utility Commission (commission) eliminated the overlap in favor of Alaska Power. THREA appeals, alleging that the commission's decision is procedurally flawed, is substantively wrong, is preempted by federal law, and results in a taking of THREA's property without just compensation. Alaska Power, the commission, and Klawock cross-appeal on the takings issue. We affirm the commission's decision.
II. FACTS AND PROCEEDINGS
This case arises out of Alaska's system of delivering electricity to its rural areas. From 1977 until 1997, THREA operated the electric plant and distribution system in Kla-wock. Initially Klawock and nearby Craig were geographically and electrically isolated, but in 1989 Alaska Power improved the road between the two towns and completed a connecting power line. As electricity and commerce began to flow along these paths, THREA's and Alaska Power's overlapping service territories came into conflict.
Under AS 42.05.221(a), any electric utility-private or municipal-must secure a certificate of public convenience and necessity, which defines the utility's service territory. The original version of the certification statute-former AS 42.05.194-applied only to privately held utilities; it contained a grandfather clause that entitled utilities to receive certificates of public convenience and necessity for areas that they were already serving when the statute was passed.
Alaska Power
had been providing electricity to Craig; hence, in applying for its certificate under former AS 42.05.194, Alaska Power requested that its service area include territory surrounding that town, which it described by certain latitude and longitude measurements. In issuing the requested certificate, the commission
used the surveyor's system of townships and ranges to describe Alaska Power's service area,
explaining that it did so because accurate "protractions" were not available for the territory around Craig
As described in the newly issued certificate, Alaska Power's service area extended beyond the area it had requested, encompassing the town of Klawock, which Alaska Power did not serve.
This situation eventually led to conflicting certificates. In 1970, enactment of AS 42.05.221 extended the original certification requirement to municipal utilities.
In 1972 the town of Klawock, which then operated its own electric utility, complied with this new statute by applying for a certificate. In granting Klawoek's application, the commission noted the overlap with Alaska Power's certificate:
The Commission recognizes that the issuance of a certificate to the City of Klawock to serve the area requested in its application would constitute an overlap of operating authority unless additional action is taken. Accordingly, the Commission will examine, in the near future, the issue of revoking the operating authority of [Alaska Power] to furnish electric utility service in the area to be certificated to the City of Klawoek by this order.
Despite this statement of intent to take action "in the near future," the commission did not revisit the issue of overlapping certificates until a quarter-century later, when THREA initiated the present proceedings.
THREA entered the picture in 1975, when the Tlingit-Haida Central Council created the utility as a regional electrical authority under AS 18.57. The Tlingit-Haida Regional Electrical Authority is a nonprofit corporation and a subdivision of the state that operates small rural electric utilities in Alaska. THREA's operations are funded by loans from the Rural Electrification Administration. In 1977 THREA purchased Klawoek's electric utility with funds borrowed from the Rural Electrification Administration; the commission then issued THREA a certificate to provide electric service to "Klawock and adjacent areas."
The commission's order
granting THREA's certificate did not mention Alaska Power's overlapping certificate, but its silence on this point is hardly surprising, since no actual conflict then existed: THREA served Klawock and Alaska Power served nearby Craig through distribution grids that were physically isolated.
That isolation ended around 1989, when the state completed a new road and electrical intertie between Klawock and Craig. Soon after, THREA stopped generating its own electricity and began buying wholesale from Alaska Power. THREA also contracted for Alaska Power to perform maintenance on THREA's distribution grid in Klawock. These arrangements left THREA in an advantageous position. With wholesale electricity and contractual maintenance work available through Alaska Power, THREA significantly reduced the cost of servicing its Klawock customers-a large part of its rate base. Yet since THREA was exempt from rate regulation,
it was able to charge rates in Klawoek that were unusually high in com- ' parison to those charged to other consumers who were connected to Alaska Power's power grid. In effect, THREA was able to use its increased Klawock profits to cross-subsidize electrical service to its more rural, off-grid customers.
Around the time that the intertie went on line, Alaska Power began serving a few customers within the overlapping territory. According to THREA's former general manager, THREA did not object to Alaska Power's serving these - customers. Eventually, though, as more Klawock consumers clamored for Alaska Power's services, THREA felt threatened by unwanted competition. In May 19983, THREA sent a letter asking the commission to cut Klawock out of Alaska Power's territory. The commission construed the letter to be a formal petition, and opened a docket. After receiving comments from Alaska Power, it denied THREA's petition without prejudice, finding that THREA had not proved that exeluding Alaska Power from Klawock would be in the public interest.
Two months later, THREA filed a second petition, renewing its request to remove the overlap between THREA's and Alaska Power's service areas. The commission responded by opening docket U-94-2 and by formally designating Alaska Power a party to the proceeding. The town of Klawock then moved to intervene, and the commission granted its motion.
The commission conducted several hearings on THREA's petition. At a consumer hearing in Klawock, ten of THREA's Kla-wock customers voiced their desire to be switched from THREA's service to Alaska Power's because Alaska Power's rates for Prince of Wales Island were significantly lower than THREA's rates for Klawock. THREA did not have an opportunity to cross-examine the consumer witnesses. The commission also heard evidence concerning THREA's performance as a public utility: its management and distribution systems, rates, outages, and system of consumer representation.
After taking the matter under consideration, the commission issued its judgment in Orders Nine and Ten. Order Nine laid out the commission's factual findings. The most significant of these were: (1) the representation of THREA and Alaska Power throughout the proceedings provided sufficient due process to allow the commission to modify both certificates; (2) the Klawoek consumer reaction "demonstrated a level of dissatisfaction with utility service heretofore unheard of"; (8) THREA's rates were distorted; (4) THREA's service and rates were unregulated because it is a political subdivision of the state; (5) unlike most political subdivisions, THREA was not politically responsible to all of its customers;
and (6) since the intertie was built, THREA has acted largely as a broker for power generated and delivered by Alaska Power. In light of these findings, the commission determined that, under AS
42.05.221(d) and .271, competition between THREA and Alaska Power is not in the public interest, and there was good cause for awarding the Klawock territory to Alaska Power.
THREA appealed this decision to the superior court, raising three issues: (1) THREA did not receive due process, particularly the opportunity to cross-examine the consumers testifying at the Klawoek consumer input hearing; (2) decertifying THREA amounted to an uncompensated taking of THREA's property; and (8) the commission's action was preempted by the federal Rural Electrification Act.
On the preemption issue, the superior court ruled that, by showing that the commission's action may have jeopardized some of THREA's Rural Utility Service loans, THREA had set forth a prima facie case of frustration of federal purpose under the federal Rural Electrification Act. Accordingly, the court remanded the case to the commission, directing it to take a "hard look" at the impact losing Klawock would have on THREA. On THREA's due process claim, the court directed the commission to provide THREA an opportunity to cross-examine witnesses from Klawoek.
On remand, the commission directed the parties to resubmit any testimony from the previous hearings that they wanted the commission to consider; the commission also stipulated that if Alaska Power resubmitted testimony from prior witnesses who had not been cross-examined by THREA, those witnesses would have to be made available for cross-examination at the hearing on remand. In addition, the commission scheduled a hearing to take new evidence concerning the financial impact of removing Klawock from THREA's territory.
This hearing produced extensive economic testimony concerning how the loss of Kla-wock might affect THREA and its non-Kla-wock customers. Klawock's expert, Loren Ublenkott, foresaw a - minimal - effect; THREA's expert, Dennis Eicher, foresaw economic ruin. These different views arose from differing methodologies. Uhlenkott began by analyzing THREA's actual performance with Klawock included in its service area; he then examined THREA's hypothetical revenue requirements and projected performance ability with Klawoeck removed from its certificate. His hypothetical model factored in various changes-efficiencies, accounting procedures, and a reduced rate of return-that Uhlenkott believed THREA would be capable of adopting. Eicher, in contrast, analyzed two hypothetical seenarios involving THREA's operations, one with Kla-wock and one without; as to both scenarios, he applied identical assumptions about rate of return, accounting methods, and management efficiencies, basing these assumptions on THREA's existing situation. In other words, Eicher's analysis presumed that if THREA lost Klawock, it would make no operational changes to adapt to its new situation.
After hearing this evidence, the commission issued its decision on remand. As before, it found that the public interest required that Alaska Power exclusively serve Klawock. Finding Uhblenkott's testimony persuasive, the commission concluded that assigning Alaska Power the exclusive right to serve Klawoek would not frustrate the federal purposes of the Rural Electrification Act-subsidizing rural electricity through low interest loans and loan guarantees-because THREA's loss of Klawoek would not jeopardize that utility's financial well-being or the Rural Electrification Act loans that Kla-woek's physical plant secured.
THREA again appealed to the superior court, which affirmed the commission's decision but found that THREA's loss of the use of its Klawock facility amounted to a de facto taking that entitled THREA to "recover fair value for the property taken." The court again remanded the case to the commission, directing it to determine the fair value of THREA's Klawoek property.
THREA appeals, challenging multiple aspects of the commission's and the superior court's orders. Alaska Power, the commission, and Klawock cross-appeal certain aspects of the superior court's de facto taking decision.
III. DISCUSSION
A. Ripeness
Because the superior court remanded this case to the commission for further proceedings, its decision is not an ap-pealable final order:
[A] decision of a superior court, acting as an intermediate appellate court, which reverses the judgment of the court below or the decision of an administrative agency and remands for further proceedings, is a non-final order of the superior court.[
]
Nevertheless, we may "treat an appeal improperly brought from a non-final judgment as a petition for review in order to prevent hardship and injustice."
The remand ordered by the superior court would focus on the value of THREA's physical plant, which the commission's certificate modification order effectively forces THREA to sell. That value turns on whether or not THREA's certificate is property for which compensation is due. If it is, then a fundamentally different approach to valustion would be nee-essary. - Furthermore, if THREA prevails on its federal preemption and indispensable federal party arguments, the pending proceedings on remand would be inappropriate. Given these circumstances, we conclude that it is "necessary to provide immediate guidance" on the matters before us, and we choose to review this case as though it were properly presented through petitions for review.
B. Standard of Review
When, as here, the superior court acts as an intermediate appellate court, we decide legal questions ourselves and directly review the agency's decision.
We independently review questions of constitutional law, federal preemption, and administrative procedure, substituting our judgment for that of the agency.
But when the commission decides issues that fall within its unique expertise, such as issues dealing with rural utility policy goals, we defer to reasonable agency determinations that are "supported by the evidence in the record as a whole."
We review the commission's findings of fact for clear error, reversing them only if they are "not supported by substantial evidence on the whole record."
C. - Modification of THREA's Certificate
1. Removal of Klawock from THREA's service area
Alaska Statute 42.05.271
broadly authorizes the cor imission to amend, modify, suspend, or revoke a utility's certificate when it finds good cause to do so in light of the requirements of public convenience and necessity. In deciding to delete Klawoeck from THREA's service area, the commission relied on this provision, finding that the requirements of public convenience and necessity justified the modification. THREA complains, however, that the commission failed to give adequate notice of its intent to modify THREA's certificate and that it improperly forced THREA to bear the burden of prov
ing the absence of good cause for the modification.
THREA bases these arguments on the specific manner in which this case arose before the commission. THREA opened the commission proceedings with its petition to modify Alaska Power's certificate by removing Klawock from Alaska Power's service area.
In evaluating THREA's request, the commission eventually began to consider whether a better course might be to modify THREA's certificate instead by ousting THREA from Klawock. It ultimately chose that option.
THREA argues that, upon converting the proceeding from one in which Alaska Power's certificate was at issue to one that considered modifying THREA's certificate, the commission should have notified THREA of the change and should have formally shifted to THREA's adversaries the burden of establishing good cause for the modification. THREA reasons that, because the commission failed to do so, its order modifying THREA's certificate violates due process and is invalid.
The commission has never published rules explaining what burden of proof applies in proceedings before it, but a case decided by this court and a recent commission decision suggest that when a proceeding places a utility's certificate at risk of being unfavorably modified, the usual practice is to assign the burden of proof to the commission or to a complaining party.
Here, Alaska Power did not formally move to modify THREA's certificate, and the commission gave THREA no formal notice that the proceedings had been expanded to encompass such a modification. Yet the expanded seope of the proceedings was made unmistakably clear to all parties at an carly stage of the proceedings. At the August 3, 1994, consumer hearing, commission staff explained that the commission had four options before it: "1) to maintain the status quo with regard to the service area; 2) to award the entire service area to [THREA]; 3) to award the entire service area to [Alaska Power]; or 4) to divide the service area into two exclusive service areas."
Although the commission reiterated its intent to consider these options during later evidentiary hearings, THREA never objected that the option of modifying THREA's petition was not properly before the commission, never complained that it lacked prior notice of this option, and never suggested the need for a formal complaint alleging good cause for modification of its certificate. Instead, THREA simply acquiesced to the commission's characterization of its available options and continued to litigate the case on its merits.
In deciding to modify THREA's certificate, the commission explicitly determined that all parties were afforded sufficient notice and opportunity to be heard. On appeal, THREA offers no indication of how it might have proceeded differently had it received more formal notice that its own certificate was at issue or how such notice might have changed the ultimate outcome of the proceedings. Given that AS 42.05.271 broadly authorizes the commission to modify any certificate for good cause "[ulpon complaint or upon its own motion," given THREA's actual knowledge, early on, that the commission would consider the option of modifying either or both certificates, and given THREA's failure to voice an objection after it acquired this knowledge, we conclude that the commission's failure to give THREA more formal notice that its certificate might be modified amounted, at most, to harmless error.
We reach the same conclusion on THREA's claim that the commission erred in failing to formally shift the burden of proving good cause for modification. Although the commission's decision makes passing reference to THREA's failure to meet its burden,
the decision also makes it abundantly clear that the commission did not find this to be a close case that might turn on the allocation of burdens rather than on positive proof of good cause for modification. The commission made strong and specific findings concerning the undesirability of THREA's continuing to provide service to Klawock; these findings are supported by substantial, affirmative record evidence. And THREA makes no realistic effort to demonstrate how a formal change in the allocation of burdens could conceivably have changed this decision.
Instead, THREA advances two evi-dentiary points arising from the superior court's original order on remand. First, THREA claims that the commission ignored the superior court's order to disregard any consumer testimony presented during the first round of hearings unless THREA was afforded the opportunity for cross-examination on remand. But the commission expressly determined on remand that it would not consider any pre-remand testimony unless the parties specifically designated the testimony and provided an opportunity for cross-examination. THREA infers that the commission must have disregarded this determination because it ultimately found that "the public interest requires that the consumers in Klawoeck receive electrical service from an entity that can provide safe, reliable service at a reasonable rate." According to THREA, this finding necessarily depends on pre-remand consumer testimony. But other evidence strongly supports a finding that THREA was failing to meet those criteria. For example, the record shows that Alaska Power charged significantly lower rates in locations similar to Klawock, yet Alaska Power performed THREA's maintenance and repair work in Klawoek on a contract basis, and THREA did little more than broker Alaska Power's electricity. These facts alone support a finding that Alaska Power is better suited to provide Klawoek with safe, reliable service at a reasonable rate.
Second, THREA claims that the commission violated the superior court's order barring it from considering THREA's "postage stamp" rate structure
on remand. But THREA's argument misconstrues the court's order, which merely directed that, if other utilities used similar rate structures, THREA's use of a postage stamp rate would not itself amount to good cause for modifying THREA's certificate. On remand, the commission examined THREA's postage stamp rate structure and found that it unfairly burdened Klawock residents. But the commission did not rely exclusively on this factor in finding good cause for modification; instead, it considered a host of other factors. Moreover, the commission did not find that other utilities used similar rate structures. While it heard evidence that Alaska Power, too, used postage stamp rates, this evidence indicated that Alaska Power confined this rate structure to contiguous and geographically similar service areas. Because Klawoek was isolated and geographically differed from other communities served by THREA, the evidence concerning Alaska Power effectively distinguished its use of postage stamp rates from - THREA's, - demonstrating - that THREA's rates were not in the public interest because they applied indiscriminately to widely disparate communities.
Since neither of these evidentiary points has merit, THREA has failed to establish that the commission's allocation of the burden of proof amounted to reversible error. Accordingly, we uphold the commission's finding of good cause under AS 42.05.271.
2. Methodology of Klawock's expert witness, Uhlenkott
The superior court's original remand order required the commission to determine how the loss of Klawock would affect THREA. The parties called various experts on this question. The commission relied on one of Klawoek's experts in particular, Loren Uhlenkott, to support its conclusion that the federal purpose of the Rural Electrification Act would not be frustrated if THREA lost the Klawoeck service area and to support its original conclusion that the public interest would not be served by allowing THREA to continue providing electrical service in Kla-wock. The superior court upheld the commission's reliance on Uhlenkott. THREA contests this ruling on appeal.
THREA claims that in predicting that THREA would be able to survive financially without Klawoeck in its service area, Uhlen-kott relied on an analytical model that was so flawed as to render his expert opinions fundamentally unreliable. Uhlenkott compared THREA's actual situation, with Kla-woeck included in its service area, to a hypothetical situation adjusted to project THREA's operations without Klawock. In building this analytical model, Uhlenkott adjusted many variables relating to THREA's rate base, most importantly the desired rate of return. THREA attacks this approach because it changed several variables at once. But according to Uhlenkott, he designed his hypothetical model to account for real world adjustments THREA would be capable of making to cope with the loss of its profitable Klawock - service - area. In - contrast, THREA's expert, Eicher, assumed that if THREA lost Klawock, it would make no changes to adapt to offset the loss or ameliorate its financial situation-that it would simply continue to operate just as it had with Klawoek.
THREA's challenge to the reliability of Uhlenkott's model posits the validity of Eicher's approach. But it could just as easily be argued that the flawed approach is Eicher's. In reality, though, neither approach seems so inherently flawed as to be fundamentally unreliable. Both experts presented substantial, albeit - opposing, - evidence - concerning THREA's financial ability to weather the loss of Klawoek. The commission had the task of determining the strengths of their competing views and assessing their relative credibility. The commission's ultimate decision to favor Uhlenkott's testimony over Eicher's was not clearly erroneous.
D. Fair Value of Property Taken from THREA
The superior court ruled that THREA is entitled to recover fair value for its property in Klawoeck because the decertifi-cation order effectively prevents THREA from using that property and therefore amounts to a de facto taking. The court ordered the commission to determine the fair value of THREA's property. On appeal, THREA contends that it should be compensated not just for the value of its physical property in Klawoek, but also for the profits it could have made had it continued serving Klawock under its original certificate. In essence, THREA asserts that the certificate itself is valuable property that the commission has taken without just compensation. In response, Alaska Power and the commission do not deny that THREA is due compensation for its stranded facility. But they contest THREA's claim that the proper measure of compensation includes anything more than the fair market value of THREA's stranded Klawoek facility.
The Alaska Constitution's takings clause provides: "Private property shall not be taken or damaged for public use without just compensation."
This clause must be interpreted generously in favor of the property owner;
by requiring the state to pay when property is "damaged," and not just when it is "taken," the clause offers Alaska property owners broader protection than does the federal Constitution's Fifth Amendment.
Furthermore, under Alaska's
takings clause, any state action that entirely denies a property owner "all the economically feasible use" of the owner's property amounts to a per se taking.
Here, because the commission's modification of THREA's certificate had the effect of denying THREA the use of property dedicated to providing Klawock with electrical service, we agree with the superior court that the modification is a per se taking for which compensation is due.
But we disagree with THREA's contention that the property taken includes both its stranded Klawock facility and its right, under its original certificate, to operate as a utility in Klawoek. The commission originally granted THREA's certificate under a statutory structure that allows certificate modification. Thus, THREA was on notice that modification in the future was a real possibility. Because the commission at all times had the authority to modify THREA's service area under the circumstances presented here, THREA owned no property interest against the commission's regulatory action.
This approach finds support in the United States Supreme Court's decision in Bowen v. Public Agencies Opposed to Social Security Entrapment.
There, the Court considered whether Congress took private property by eliminating an opt-out provision in the Social Security Act that allowed voluntarily enrolled states to withdraw from the Social Security System. A key ingredient of the case was that Congress had explicitly retained the power to alter the terms of the Act. The Supreme Court ruled that "contractual rights" conferred under the Act were necessarily subject to the sovereign power of the United States and "bear[ ] little, if any, resemblance to rights held to constitute 'property' within the meaning of the Fifth Amendment."
Distinguishing between the right to withdraw from the Social Security program and direct contractual rights or debts against the federal government, the Court emphasized that Congress had "reserved" the power to alter the opt-out element of the Social Security Act.
A certificate of public convenience and necessity presents a similar situation. When the legislature passed AS 42.05.271(1), it gave specific notice that the commission could modify or revoke a certificate of public convenience and necessity upon good cause shown.
Thus, the certificate grants a utility like THREA no vested right against the commission's exercise of this regulatory power.
Since THREA offers no convincing authority or reason why a certificate should qualify as property when the commission exercises a reserved regulatory power that was a condition of the certificate's original issuance, we conclude that the commission's de-certification order is not a compensable taking of business rights conferred by THREA's original certificate.
In summary, the commission's action did strand some of THREA's physical assets. The superior court correctly recognized that THREA must be compensated for those assets, and it properly ordered the commission to determine their value in the next phase of its proceedings. But the court did not err in failing to identify THREA's original certificate as compensable property taken by the commission's order.
One aspect of the takings issue remains to be considered. In its cross-appeal, Alaska Power expresses reservations about the commission's impending determination of
the fair market value of THREA's Klawock facilities. Fearing that the price may prove too high, Alaska Power argues that it should remain free to build new facilities in Kla-woeck, thereby stranding THREA's facilities and leaving the state with the burden of paying THREA fair compensation.
But in our view, under AS 42.05.221(d) and other provisions of the Public Utility Act, the commission may direct that Alaska Power purchase the existing Klawoeck facilities as a condition of its exclusive certification. If Alaska Power disagrees with the commission's evaluation of these assets, it may, of course, resort to its administrative appeal rights. But having come this far in this process, Alaska Power may not back away from the obligation to provide service in Kla-wock or to acquire THREA's plant, if the commission makes that purchase part of the package.
E. Federal Preemption
THREA's operations as a rural utility are funded by federal loans issued under the Rural Electrification Act.
The purpose of the Rural Electrification Act is best explained by section 902 of the Act, which "authorizes and empowers" the Secretary of Agriculture
to make loans in the several States and Territories of the United States for rural electrification and ... for the purpose of furnishing and improving electric and telephone service in rural areas, as provided in this chapter, and for the purpose of assisting electric borrowers to implement demand side management, energy conservation programs, and on-grid and off-grid renewable energy systems.[
]
In both of its appeals to the superior court, THREA argued that the commission's decision to modify its certificate frustrated the purposes of the Rural Electrification Act and was therefore preempted by federal law. In THREA's first appeal, the superior court ruled that THREA had presented a prima facie case of federal preemption and remanded the case to the commission for a "hard look" at whether modifications to THREA's permit would frustrate the federal purpose of the Rural Electrification Act. After a new round of hearings, the commission affirmed its initial decision, ruling that the federal purpose of the Rural Electrification Act would not be frustrated by removing Kla-wock from THREA's service area because the Rural Utility Service's loan interest would be protected and because THREA would be financially capable of continuing to serve other rural areas. The superior court affirmed these findings in THREA's second appeal. THREA challenges the superior court's ruling and argues federal preemption.
The law of federal preemption "is derived from the supremacy clause of article VI of the federal Constitution, which declares that federal law shall be 'the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.' "
Thus, state regulation that conflicts with federal law cannot stand.
To determine whether Congress has preempted state action in a particular arena, we "look to the policy, intent, and context of the federal statute to determine whether application of the state law would frustrate the operation of the federal one."
Generally, we apply a two-step analysis to preemption questions. First, we look to see whether Congress has overtly preempted the subject matter the state wishes to regulate, either explicitly, by declaring its intent to preempt all state authority, or implicitly, by occupying the entire field of regulation on the subject in question.
Second, if neither kind of direct preemption is found, we look to whether federal and state law conflict in this particular instance. If state and federal regulations openly conflict or if state regulations
obstruct the purpose of federal regulations, then the supremacy clause blocks the state regulation.
THREA asserts that this latter type of preemption-frustration of federal purpose-is at issue here. According to THREA, the commission's order deleting Klawoek from its certificate of public necessity and convenience stands "as an obstacle to the accomplishment and execution of the full purposes and objectives" of the Rural Electrification Act.
In considering this argument, we must "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress."
And we must further recognize, as the Supreme Court has, that "the regulation of utilities is one of the most important of the functions traditionally associated with the police power of the States."
As we have already pointed out, the Rural Electrification Act's central purpose is to lend money to promote rural electrification.
In keeping with the Act's purpose, the United States Supreme Court has described the Rural Electrification Administration as "a lending agency rather than a classic public utility regulatory body."
Our own decisions have recognized that the Rural Electrification Act is meant "to provide electric energy to persons residing in rural areas who were not able to receive such services from utility companies serving cities and other populated communities."
Because the Rural Electrification Act was designed to promote rural electrification by offering financial incentives to utilities that serve outlying areas, direct interference with property mortgaged to the Rural Utility Service could conceivably frustrate the purposes of the Act. But legitimate regulation of a utility that allows the Rural Utility Service and its loan recipient to recoup their investments, does not. Thus, as the United States Supreme Court expressly noted in the context of rate setting, the Rural Electrification Administration has been "expected to play a role in assisting the fledgling rural power cooperatives in setting their rate structures . within the constraints of existing state regulatory schemes."
Here, the fact that this federal role does not act as a substitute for existing state regulation is demonstrated by Rural Utility Service's insistence that THREA obtain a certificate of public convenience and necessity as a condition of receiving its Rural Electrification Act loan.
Although courts considering federal preemption under the Rural Electrification Act in contexts other than rate regulation have split on the issue,
we believe that Stilwell v. Ozarks Rural Electric Cooperative represents the better view. In Stilwell, relying on the trial court's determination that a rural utility would not suffer financial jeopardy if it lost a contested service area, the Tenth Circuit Court of Appeals held that the Rural Electrification Act did not preempt state action restricting the utility's territory, declining "to read the [Rural Electrification Act] so broadly as to expand the [Rural Utility Service's] authority beyond that which is ... 'derivative of the Administrator's responsibilities for the operation of the loan and guaran
tee programs under the [Rural Electrification Act]" "
THREA attempts to distinguish Stilwell, arguing that a Rural Utility Service officer in that case agreed that loss of the contested service area would not be harmful to the rural utility's economic future; in contrast, here, a Rural Utility Service officer testified that losing Klawock would doom THREA. But preemption requires something more than the personal prediction of an agency official. For as the United States Supreme Court has noted, federal officials have not "always welcomed state regulation of rural power cooperatives, or thought it was a good idea.... But, of course, such expressions of opinion do not constitute sufficient grounds for pre-emption."
In the present case, after hearing substantial evidence on both sides of the issue-including testimony from Klawoek's expert that favored Alaska Power-the commission found that THREA would be capable of surviving the loss of Klawock. Faced with conflicting evidence on the relative merits of different approaches to utility management, we apply a deferential standard of review and rely on the commission's considerable expertise in resolving such matters.
Because substantial evidence supports the commission's finding that THREA will not founder if it loses Klawock, we will not disturb that finding.
Given the commission's findings that THREA's continuing service of Klawock was not in the public interest, that the loss of that service area would not jeopardize THREA's ability to serve other rural areas, and that THREA must be justly compensated for the federally-financed facilities that the commission's action would strand, we do not see how the commission's decertification order frustrates the federal purpose of capitalizing rural electrification. Accordingly, we affirm the superior court's ruling that federal law does not preempt the commission's action.
F. Indispensable Party
Finally, we turn to the question of whether the Rural Utility Service was an indispensable party to this action.
Alaska Civil Rule 19 governs courts in deciding whether an absent party is indispensable to particular court proceedings. Rule 19(a) de-seribes when courts must join absent parties, if possible.
A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may () as a practical matter impair or impede the person's ability to protect that interest or (i) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff, If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action.
Rule 19(b) explains how courts should proceed when joinder is impossible:
If a person as described in subsection (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court
include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder. -
Although this rule does not directly apply to administrative actions, we agree with THREA that it appropriately balances the equities involved when a case arises without all necessary parties. The rule thus provides relevant guidance.
Moreover, since administrative adjudications are reviewed by courts that are bound by Rule 19, the most consistent approach is to apply Rule 19 at the outset.
The parties agree that the Rural Utility Service has declined to take part in these proceedings and cannot be required to participate because it is cloaked by the sovereign immunity of the United States. Therefore, we look to Rule 19(b) to answer whether this litigation should have continued, based on: (1) the prejudice to the Rural Utility Service or the existing parties, (2) how relief may be shaped to avoid prejudice, (8) adequacy of such relief, and (4) what remedy is left if the action is dismissed.
Here, the commission found that its inability to order the Rural Utility Service to be joined as a party caused insufficient prejudice to justify dismissing the docket. In reaching this conclusion, the commission distinguished City of Fairbanks v. Electric Distribution System,
where we ruled that the Rural Utility Service was an indispensable party in a condemnation proceeding against property for which it held a mortgage.
We agree with the commission's reasoning.
Though similar to this case in many ways, City of Fairbanks is distinguishable because the regulatory context here allows a remedy to be fashioned that protects the Rural Utility Service's unrepresented interests. City of Fairbanks involved a pure condemnation proceeding; Fairbanks sought to acquire customers from the densely populated portion of a rural utility's territory, evidently to add to the service area of its own municipal utility.
In that cireumstance, the rural utility and the Rural Utility Service were the only parties concerned with the provision of electricity to the rural areas outside the contested service area. We thus explained that
the United States has an interest in this litigation that would be adversely affected by a judgment condemning the electric distribution facilities in the Island Homes Subdivision. It is an interest that would not be satisfied merely by repayment from the condemnation proceeds of the pro tan-to portion of the money the United States has loaned. ... The interest of the United States is not merely that of a money lender who expects repayment of its loan with interest. The interest of the United States is in seeing to it that [the rural utility it has financed] is able to continue to provide electrical services at reasonable rates to the rural areas it has undertaken to serve. This it may not be able to do if the cream of its consumers of electrical energy in the densely populated areas is skimmed off by another utility . . . . (
)
In the present situation, by contrast, the superior court initially remanded this case so that the commission could take a "hard look" at how the loss of Klawock would affect THREA's ability to serve other rural areas. On remand, the commission then heard testimony from several experts, including the Rural Utility Service, regarding THREA's future. Afterwards, the commission specifically found that the loss of Klawoek would not unduly damage THREA. Thus, our con
cerns in City of Fairbanks were specifically addressed by the commission. This effort by the commission satisfied the four elements of Rule 19(b).
First, the commission's treatment of this case avoids undue prejudice to the parties or to the Rural Utility Service, itself. THREA points out various problems that might arise by proceeding without the participation of the Rural Utility Service.
In our view, the commission's planned second phase of hearings is more likely to result in an equitable resolution of the issues than would a dismissal based on the Rural Utility Service's absence. If this action were dismissed, THREA and Alaska Power would be in direct competition for Klawock customers and there would be no guarantee that THREA would receive anything for its facilities if it lost its Klawock business to Alaska Power, its wholesale supplier. Under the commission's proposed procedure, THREA will be able to recoup the value of its Klawoek facility, which will offer it the opportunity to apply that capital to its Rural Utility Service loans and to investments in other rural areas.
The second element of Rule 19(b)-the commission's ability to fashion a protective remedy lessening or avoiding prejudice in the Rural Utility Service's absence-also supports the commission's decision to proceed. In the next phase of its proceedings, the commission can assure THREA and the Rural Utility Service alike the opportunity to receive optimal value for THREA's Klawoeck property. We are similarly satisfied that the proceedings on remand will address Rule 19(b)'s third element by ensuring the adequacy of the ultimate judgment in the Rural Utility Service's absence.
And turning to the final element of Rule 19(b)-the adequacy of the plaintiffs' remedy in the event of a dismissal for nonjoinder-we again find little reason to declare the Rural Utility Service an indispensable party. In the event of a dismissal, both Alaska Power and THREA would keep Klawock within their service territories; unregulated market forces presumably would decide the fate of THREA's Klawock facility, leaving neither the commission nor Alaska Power under any obligation to purchase it in the future. Because the commission could reasonably deem this remedy to be undesirable, we conclude that the commission did not abuse its discretion in ruling that the Rural Utility Service was not an indispensable party.
IV. CONCLUSION
For these reasons, we AFFIRM the superior court's order and REMAND this case to the commission for further proceedings consistent with this opinion.
EASTAUGH, Justice, not participating.