No. 84-290 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

MONTANA POWER COMPANY, 

a Montana corporation, 

Plaintiff and Petitioner, 

THE PUBLIC SERVICE COMMISSION OF 

THE STATE OF MONTANA and its members 

THOMAS J. SCHNEIDER, JOHN B. DRISCOLL, 

HOWARD L. ELLIS, CLYDE JARVIS and 

DANNY OBERG, 

Defendants and Respondents. 

ORIGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Petitioner: 

Daniel 0. Flanagan, John J. Burke, John L. Peterson, 

Dennis L. Lopach, Pamela K. Plerrell, Butte, Montana 

(Helena, Montana) 

For Res~ondents: 

Eileen E. Shore, Public Service Commission, Helena, 

Montana 

For Intervenors: 

James C. Payne & John C. Allen, Montana Consumer Counsel, 

Helena, Montana 

Kurt Krueger, Butte, Montana and Robert Rowe, Missoula, 

Montana for Butte Coinmunity Union, Montana Legal Services, 

Montana Association for Senior Citizens 

Patrick L. Smith, Northern Plains Resources Council, 

Billings, Montana 

Daniel & Jeanne Kemmis, Human Resources Council, Missoula, 

Montana 

John Doubek & Richard Pyfer, Montana Irrigators, Helena, 

Montana 

Donald W. Quander, ASARCO, Billings, Montana 

C. William Leaphart, Champion International & CONOCO, 

Helena, Montana 

Capt. Edwin T. Peterson, Judge Advocate, U.S. Air Force, 

Great Falls, Montana 

Robert L. Deschamps, Missoula County, Missoula, Montana 

James Robischon, Atlantic Richfield & Stauffer Chemical Co., 

Butte, Montana 

Charles W. Kuether, Great Falls Gas Co., Great Falls 

Grant E. Tanner, D.S.I., Portland, Oregon 

Submitted: August 10, 19134 

Decided: ~ugust 22, 1984 

iaub /ti ,! 1984 

Filed: 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion 

of the Court. 

On July 3, 1984, the Montana Power Company filed an 

application with this Court requesting that the Court assume 

original jurisdiction of a petition and complaint for 

declaratory judgment and/or writ of mandate or other 

appropriate relief. We have determined that original 

jurisdiction will be assumed by this Court. A briefing 

schedule is herein established. 

All parties agree that Rule 17, M.R.App.Civ.P. governs 

this Court's exercise of original jurisdiction. Rule 17 

provides: "The institution of such original proceedings in 

the supreme court is sometimes justified by circumstances of 

an emergency nature, as when a cause of action or a right has 

arisen under conditions making due consideration in the trial 

courts and due appeal to this court [Montana Supreme Court] 

an inadequate remedy, . . .'I 

The substantive issue being litigated is whether a coal 

fired generator known as Colstrip #3 should be included in 

the rate base so that the reasonable cost of Unit 3 is born 

by the ratepayers. Unit 3 has been providing electricity for 

the past 8 months. The Montana Power Company is not 

recouping a return on its investment in Colstrip 3 or its 

operation and maintenance expenses associated with the 

generation of that electricity. If the company's position on 

the issue presented to this Court is correct, then the 

revenues it would be earning could be permanently lost as no 

remedy has yet been recognized for the restoration of such 

revenues. 

There can be no dispute that the issue being litigated 

is of statewide importance. The significance of the issue 

was emphasized by the Public Service Commission in its 
"Motion for Extension of Time for Filing Return, Brief and 

Presenting Oral Argument" filed in this matter on July 10, 

1984. In that motion, the PSC stated in part: 

"The issue rasied by MPC1s appeal will have 

profound and far-reaching effects on both MPC and 

the people of Montana. 

"Whether one views the issue presented by MPC in 

this case from a ratepayers viewpoint or from the 

utility's viewpoint, it is one that has major 

ramifications for the State of Montana. It 

involves the statutory interpretation of a very 

significant and fundamental law governing 

construction of major facilities in this State 

(75-20-101-et seq., MCA) . It also involves a 

public utility statute that goes to the heart of 

the PSC's regulatory jurisdiction over the State's 

public utilities." 

On numerous occasions this Court has accepted original 

jurisdiction to hear cases having statewide impact and where 

significant governmental policy was involved. In State ex 

rel. Ward vs. Anderson et al., (1971), 158 Mont. 279, 491 

P.2d 868, the plaintiff, an elector and taxpayer of Lewis and 

Clark County, sought a declaratory judgment respecting 

authority of the Board of Examiners to issue and sell 

long-range building program bonds. The Court accepted 

original jurisdiction because a legislative act was called 

into question vitally affecting Montana's education and 

highway programs. Likewise, in Guillot v. State Highway 

Commission (1936), 102 Mont. 149, 56 P.2d 1072, plaintiff 

sought to invoke original jurisdiction of this Court to 

prohibit the State Highway Commission from expending funds 

for the erection of a highway building. In accepting 

original jurisdiction the Court emphasized that it was doing 

so because interests of the public were involved in the 

controversy and the threatened harm was imminent. 

The most recent controversy involving public interest 

questions, wherein this Court assumed original jurisdiction, 
was Grossman v. Dept. of Natural Resources, et al., (1984), 

41 St.Rep. 804. The question at the heart of the controversy 

was authorization for the DNRC to sell revenue bonds for 

funding Montana's water resources program. We there assumed 

original jurisdiction because the decision would be of 

statewide significance and because delay in making that 

decision did not serve the public interest. 

We find that the requirements of Rule 17, M.R.App.Civ.P. 

have been satisfied. The resolution of this controversy 

affects people throughout the state. Delay could result in 

irreparable harm to the Montana Power Company. Assumption of 

jurisdiction may also promote judicial economy. 

We are reluctant to further discuss a basis for 

jurisdictional assumption which might be interpreted as a 

predetermination of the substantive issue. Nothing herein 

should be construed to indicate a position on the question to 

be ultimately decided. 

We assume jurisdiction to decide the narrow legal 

question of whether the certificate issued by the Board of 

Natural Resources and Conservation is conclusive and binding 

on the Public Service Commission. The Montana Power Company 

will file its opening brief by the 27th day of September, 

1984. The remainder of the briefs will be filed pursuant to 

the rules governing briefs. After briefs are filed the case 

will be set for oral argument. 
We %a&- concur: 

, 

Chief Justice " ' 

Justices 

District Court Judge 

sitting in place of Justice 

John C. Sheehy 
Mr. Justice Daniel J. Shea, dissenting: 

Since I have been on this Court, I have adhered to the 

view that the special jurisdiction of this Court should not 

be invoked where the party invoking it has an appeal whereby 

all the issues can be presented. I adhere to this view 

today. This case is too complex and too important to decide 

on a piecemeal basis ------- the choice of the majority. 

The decision to take jurisdiction rests not on the 

invocation of sound judicial principles, but rather on the 

use of raw judicial power to achieve the results sought by a 

majority of this Court. The invoca.tion of a phrase which I 

have heard often within the inner sanctums of this Court 

aptly summarizes the decision to take jurisdiction: "If -- we 

-- are to say aye, -- who is there - to nay?" 

The emergency provisions stated in Rule 17, do not apply 

here, the majority pronouncement, notwithstanding. First, 

that a decision may affect many people throughout this state 

is no basis for assuming jurisdiction. Many cases we decide 

affect people in this state in one way or another, and yet we 

normally do not let the parties involved bypass the normal 

appeal procedures. Moreover, a decision not to take 

jurisdiction would ultimately place this Court in a much 

better position to reach a decision based on an understanding 

of the entire case. 

Second, the delay involved in not taking jurisdiction 

will not work irreparable harm upon the utility, for it is 

but a normal risk of business that an appeal must start in 

the District Court before it can get to the Supreme Court. 

The fact that if the utilities later win in the District 

Court or before this Court, they cannot recoup their lost 
revenues incurred during the time delays, is simply a cost of 

doing business, a cost that all utilities other than the 

Montana Power Company seem to be required to bear. If this 

Court believes irreparable harm is proved by a utility's 

inability to recoup losses during the judicial delays, then 

every utility in this state should have the same right to 

bypass appeals to District Court and to come straight to this 

Court for its requested relief. 

Third, the order says that judicial economy "may" be 

promoted, but nothing in the order indicates where judicial 

economy "may" be furthered. Nor is the possibility that 

judicial economy "may" be furthered sufficient reason for 

this Court to assume jurisdiction. This Court should be 

convinced that, and its order should set out, precisely how 

judicial economy will be promoted. Depending on the 

proceedings involved and the state of the record, it is just 

as likely that this Court's constant intervention and 

interruption of the normal process of judicial proceedings 

will have the effect of delaying and muddling the record 

beyond redemption. 

Nor do I have the slightest idea of what is in the mind 

of those signing the majority order where they state they are 

reluctant to discuss another basis for jurisdiction for fear 

of disclosing their hands on the substantive issue itself. 

If the majority has unstated reasons for assuming 

jurisdiction, it appears that they have decided the 

substantive issue in their own mind, despite their 

protestations to the contrary. 

Vtk- 4@7- 

Finally, in defining the issue && will decide, those 

signing the majority order use the broadest possible language 

in stating or defining the issue. What is meant by the issue 
being stated as "whether the certificate issued by the Board 

of Natural Resources and Conservation is conclusive and 

binding on the Public Service Commission?" Conclusive and 

binding on all facts or issues decided, or conclusive and 

binding on more limited facts or issues decided? 

Further, the order of the majority mistakenly states 

that the substantive issue being litigated is whether 

Colstrip No. 3 should be included in the rate base. As 

framed by the application and briefs submitted to this Court, 

the sole substantive issue presented is whether the 

&ARD determination of need made a-lmost ten years ago by the .&wa 

of Natural Resources and Conservation was intended by this 

State's legislature to encompass all of the considerations 

implicit in the PSC's subsequent determination of used and 

S@A &@ 

useful, and whether the l3wxa.a of Natural Resources and 

Conservation's decision was thereby intended to preclude any 

further consideration by the PSC of the need for Colstrip No. 

3's power. Even if this Court does decide that the -&+eem .Boa@ of 

Natural Resources and Conservation has the sole legislative 

a.uthority to determine the need for Colstrip No. 3's power, 

the issue of whether the PSC is obligated, pursuant to 

section 69-3-109, MCA, to include any of the cost of Colstrip 

No. 3 in the rate base will be left undecided, as this issue 

has not been presented to this Court. Again, this is the 

danger with bringing a case as vast and complex as the 

present before this Court on a piecemeal basis. With nothing 

more before it than mere allegations of emergency, this Court 

has decided to forego the benefits of a complete, informative 

record and a clear and exhaustive determination of the 

substantive issues.