2014 UT App 232

_________________________________________________________

THE UTAH COURT OF APPEALS

WERNER UHLIG,

Petitioner,

v.

PUBLIC SERVICE COMMISSION,

Respondent.

HI-COUNTRY ESTATES HOMEOWNERS ASSOCIATION,

Intervenor.

Per Curiam Decision

No. 20140635-CA

Filed October 2, 2014

Original Proceeding in this Court

Werner Uhlig, Petitioner Pro Se

Melanie A. Reif, Attorney for Respondent Public

Service Commission

J. Craig Smith and Adam S. Long, Attorneys for

Intervenor Hi-Country Estates Homeowners

Association

Before JUDGES GREGORY K. ORME, MICHELE M. CHRISTIANSEN,

and SENIOR JUDGE RUSSELL W. BENCH.

1

PER CURIAM:

¶1 Petitioner Werner Uhlig seeks judicial review of a decision

of the Public Service Commission (the Commission) determining

that he lacked standing to challenge a May 2014 Report and Order

1. The Honorable Russell W. Bench, Senior Judge, sat by special

assignment as authorized by law. See generally Utah R. Jud. Admin.

11-201(6).
Uhlig v. PSC

approving proposed water service schedules and rates on an

application by Hi-Country Estates Homeowners Association (HiCountry Estates). This case is before the court on the Commission’s

motion for summary disposition and on Hi-Country Estates’s

motion to intervene. We grant Hi-Country Estates’s motion to

intervene in the case before this court, affirm the Commission’s

decision on standing, and dismiss the petition for review based

upon Uhlig’s lack of standing to seek judicial review.

¶2 InJuly 2013, Hi-Country Estates filed its application with the

Commission. After appropriate notice, the Commission issued a

scheduling order on September 24, 2013, setting a deadline of

December 27, 2013, for individuals to request to intervene as

parties. Uhlig did not request intervention, and the deadline for

doing so passed. The Commission held evidentiary hearings at

which the parties—including two intervenors—participated. The

Commission held an additional hearing to take statements from

members of the public. Uhlig provided testimony at that hearing,

objecting to the proposed standby fee rate increase from his

position as a resident of Hi-Country Estates and as a private well

owner who is not connected to its water system. On May 5, 2014,

the Commission issued its Report and Order approving the

proposed rates. The order advised the parties of their rights to seek

agency review or rehearing and to petition for judicial review.

¶3 Although he had not intervened as a party, Uhlig filed a

request for agency review or rehearing. In the Report and Order

Denying Mr. Uhlig’s Request for Review or Rehearing dated June

19, 2014, the Commission ruled that Uhlig lacked standing because

a request for review or rehearing of a Commission action can be

filed only by a party to the agency proceeding. Because Uhlig

neither requested nor was granted intervention, the Commission

ruled that he lacked standing to challenge the Commission’s May

2014 Report and Order, and dismissed his request for agency

review. Uhlig filed a petition for judicial review of the order

dismissing his request for review in the agency. The Commission

20140635-CA 2 2014 UT App 232
Uhlig v. PSC

now moves for summary disposition. Intervenor Hi-Country

Estates joins that motion.

¶4 The Utah Supreme Court considered a similar case in Ball v.

Public Service Commission, 2007 UT 79, 175 P.3d 545. The petitioners

in Ball moved to intervene in the case before the Commission. The

supreme court dismissed the petition for judicial review based on

lack of standing after affirming the Commission’s order denying

intervention. Id. ¶ 27. The supreme court stated that standing

before the supreme court was dependent on the outcome of its

reviewof the Commission’s order denying the request tointervene.

Id. ¶ 29. After determining that the Commission properly denied

the request to intervene, the supreme court held that the petitioners

also lacked standing. Id. ¶¶ 29-30, 62. Accordingly, we first

consider whether the Commission properly determined that Uhlig

lacked standing to seek agency review in the formal adjudicative

proceedings.

¶5 In ruling that Uhlig was not a party to the proceedings

before it, the Commission noted that under provisions of the

Administrative Procedures Act (UAPA), if permitted by statute or

an agency’s rules, “parties to any adjudicative proceeding [may]

seek review of an order by the agency or by a superior agency.”

Utah Code Ann. § 63G-4-301(1)(a) (LexisNexis 2011). “‘Party’

means the agency or other person commencing an adjudicative

proceeding, all respondents, allpersons permitted by the presiding

officer to intervene in the proceeding, and all persons authorized

by statute or agency rule to participate as parties in an adjudicative

proceeding.” Id. § 63G-4-103(1)(f). It is undisputed that Uhlig did

not seek to intervene in the proceedings before the Commission,

and the time to do so under the scheduling order expired. Uhlig

claims that the Commission did not provide adequate information

explaining how to move to intervene. This claim lacks merit.

Because Uhlig neither sought nor obtained permission to intervene

as a party in the agency proceedings, the Commission properly

ruled that Uhlig lacked standing to seek review or rehearing in the

agency.

20140635-CA 3 2014 UT App 232
Uhlig v. PSC

¶6 Generally, an individual lacks standing to seek judicial

review when the party was not a party in the agency proceeding.

See Ball, 2007 UT 79, ¶ 44. After affirming the Commission’s

decision denying a motion to intervene, the Utah Supreme Court

in Ball then considered whether any of the petitioners had standing

granted by statute. Utah Code section 54-7-15 grants standing to

seek judicial review of Commission decisions regarding public

utilities to “any party, stockholder, bondholder, or other person

pecuniarily interested in the public utility who is dissatisfied with

an order of the commission.” Id. ¶ 46 (citation and internal

quotation marks omitted). UAPA requires an individual seeking

judicial review of an agency decision to exhaust all administrative

remedies including applying for a rehearing. Id. ¶ 47. UAPA also

requires that an individual seeking judicial review must have been

“substantially prejudiced” by the agency decision. Id. ¶ 48. The

supreme court stated, “In sum, an individual may have appellate

standing to seek judicial review of an agency decision if he or she

has exhausted all administrative remedies and qualifies as an

‘aggrieved’ or ‘substantially prejudiced’ ‘party, stockholder,

bondholder, or other person pecuniarily interested in the public

utility.’” Id. ¶ 49. In Ball, the supreme court considered whether the

petitioners who qualified as “ratepayers” had appellate standing

because they were “pecuniarily interested in the public utility.” Id.

¶ 51. The supreme court concluded that although ratepayers are

aggrieved by the increase in their bills, “they lack appellate

standing because they have no pecuniary interest in the public

utility and therefore do not fall within the classes of person to

whom standing is granted.” Id. ¶ 57. It follows that Uhlig is not

within the class of persons authorized by statute to have standing

to seek judicial review.

¶7 Based upon the foregoing, we affirm the Commission’s

decision that Uhlig lacked standing to participate in the agency

proceedings, and we dismiss the petition for review based upon his

lack of standing in this proceeding for judicial review.

20140635-CA 4 2014 UT App 232