Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

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REGULATORY COMMISSION OF 

ALASKA, 

Appellant, 

v. 

MATANUSKA ELECTRIC 

ASSOCIATION, INC.; CHUGACH 

ELECTRIC ASSOCIATION, INC.; 

GOLDEN VALLEY ELECTRIC 

ASSOCIATION, INC.; 

MUNICIPALITY OF ANCHORAGE 

d/b/a MUNICIPAL LIGHT & 

POWER; HOMER ELECTRIC 

ASSOCIATION, INC.; ALASKA 

ENERGY AUTHORITY; and STATE 

OF ALASKA ATTORNEY 

GENERAL’S OFFICE, 

REGULATORY AFFAIRS AND 

PUBLIC ADVOCACY SECTION, 

Appellees. 

HOMER ELECTRIC ASSOCIATION,

INC., 

Appellant, 

v. 

REGULATORY COMMISSION OF 

ALASKA; CHUGACH ELECTRIC 

Supreme Court Nos. S-15944/15973 

(Consolidated) 

Superior Court No. 3AN-14-08890 CI 

O P I N I O N 

No. 7338 – February 22, 2019 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ASSOCIATION, INC.; GOLDEN )
 

VALLEY ELECTRIC )
 

ASSOCIATION, INC.; )
 

MATANUSKA ELECTRIC )
 

ASSOCIATION, INC.; )
 

MUNICIPALITY OF ANCHORAGE )
 

d/b/a MUNICIPAL LIGHT & )
 

POWER; and ALASKA ENERGY )
 

AUTHORITY, )
 

)
 

Appellees. )
 

)
 

Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Anchorage, Michael D. Corey, Judge. 

Appearances: Stuart W. Goering and Megyn A. Greider, 

Assistant Attorneys General, Anchorage, and Jahna 

Lindemuth, Attorney General, Juneau, for Appellant 

Regulatory Commission of Alaska. Michael E. Kreger and 

Sarah C. Gillstrom, Perkins Coie LLP, Anchorage, for 

Appellant and Appellee Homer Electric Association, Inc. 

Robin O. Brena, Matthew C. Clarkson, and Kelly M. 

Moghadam, Brena, Bell & Clarkson, P.C., Anchorage, for 

Appellees Matanuska Electric Association, Inc. and Chugach 

Electric Association, Inc. John J. Burns, Golden Valley 

Electric Association, Inc., Fairbanks, Alaska, for Appellee 

Golden Valley Electric Association, Inc. Dean D. Thompson 

and Jonathon D. Green, Kemppel, Huffman and Ellis, P.C., 

Anchorage, for Appellee Municipality of Anchorage d/b/a 

Municipal Light and Power. Notice of nonparticipation filed 

by Brian Bjorkquist, Senior Assistant Attorney General, 

Anchorage, and Craig W. Richards, Attorney General, 

Juneau, for Appellee Alaska Energy Authority; and by 

Jeffrey J. Waller, Assistant Attorney General, Anchorage, 

and Craig W. Richards, Attorney General, Juneau, for 

Appellee State of Alaska Attorney General’s Office, 

Regulatory Affairs and Public Advocacy Section. 

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Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, 

and Carney, Justices. 

MAASSEN, Justice. 

I. INTRODUCTION 

Electricalutilitiesenteredintoagreementsfor thepurchaseandtransmission 

of energy from a hydroelectric project to utilities in distant service areas. Legislation 

exempted the agreements from the review or approval of the Regulatory Commission of 

Alaska (RCA); any disputes were to be resolved instead by a contractually established 

committee. 

Along the transmission pathway was a substation leased by Homer Electric 

Association (HEA) to Chugach Electric Association (Chugach) and used by Chugach for 

the transmission of the distant utilities’ electricity. When the lease expired, HEA filed 

tariff applications with the RCA, seeking approval of rates for its own transmission of 

the other utilities’ energy. The other utilities objected to the RCA’s jurisdiction, citing 

their agreements and the legislation exempting the agreements from regulatory review. 

The RCA determined that it had the authority to consider the tariff 

applications. The affected utilities appealed to the superior court, which held that the 

RCA did not have that authority. HEA and the RCA petitioned for our review, 

challenging both the superior court’s appellate jurisdiction and the merits of its decision 

regarding the RCA’s authority. 

We granted review. We reject the challenges to the superior court’s 

jurisdiction. Furthermore, like the superior court, we conclude that the intent of the 

original agreements and of the governing statute was to exclude disputes like this one 

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from the RCA’s jurisdiction. We therefore affirm the decision of the superior court 

reversing the RCA’s order. 

II. FACTS AND PROCEEDINGS 

A. Facts 

1. The Bradley Lake Hydroelectric Project 

The Bradley Lake Hydroelectric Project (the Project), located 

approximately 27 miles northeast of Homer, began commercial operation in 1991.1 It 

“consists of a 125-foot high concrete-faced, rock-filled dam structure, three diversion 

structures, a 3.5-mile long power tunnel and vertical shaft, generating plant, interior 

substation, 20 miles of transmission line, and substation.”2 The transmission lines 

connect the power plant to the switching station at Bradley Junction, where Bradley Lake 

energy is transferred to transmission lines owned by HEA. HEA’s lines include “the 

Soldotna Segment,” a 46.8-mile segment from Bradley Junction north to the Soldotna 

Substation, owned by HEA and — until 2014 — leased to Chugach. 

2. The HEA/Chugach lease 

Chugach entered into the lease with HEA to “operate and maintain” some 

of HEA’s transmission facilities in September 1985, six years before the Bradley Lake 

Project began commercial operation. The leased facilities included the Soldotna 

Substation and two transmission lines connecting that substation with one near Quartz 

Creek, owned by Chugach. The lines from the Soldotna Substation to the Quartz Creek 

Substation are called the S/Q Line; they provide the only physical path for the 

transmission of electricity to utilities other than HEA. 

1 ALASKA ENERGY AUTH., BRADLEY LAKE HYDRO PROJECT (2018), 

http://www.akenergyauthority.org/Portals/0/programs/factsheets/Documents/PFS-Bra 

dleyHydro.pdf. 

2 Id. 

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The HEA/Chugach lease expired in January 2014, when HEA removed 

Chugach’s metering equipment at Soldotna Substation and took over operation of the 

S/Q Line. 

3. The Bradley Lake Agreements 

Before the Bradley Lake Project was completed, certain Alaska utilities 

executed agreements for the sale, purchase, and transmission of Bradley Lake energy. 

Other than HEA, the utilities were what is known as “railbelt” utilities: their service 

areas lay along the route of the Alaska Railroad from Seward to Fairbanks. None of 

them owned transmission lines that would provide direct access to Bradley Lake energy. 

The primary purpose of the Bradley Lake Agreements, therefore, was the 

creation of a transmission route for Bradley Lake energy for the utilities that operated to 

the north. Pursuant to the agreements, HEA transmitted railbelt utilities’ energy from 

Bradley Lake via its Soldotna Segment, at the end of which —at the Soldotna Substation 

— Chugach accepted delivery. It was Chugach’s responsibility to transmit the Bradley 

Lake energy farther on, first along the S/Q Line to the Quartz Creek Substation and then 

to more distant delivery points as designated by the other utilities. The sections that 

follow describe the Bradley Lake Agreements in more detail. 

a. The Power Sales Agreement 

The Agreement for the Sale and Purchase of Electric Power (Power Sales 

Agreement) had eight signatories: the Alaska Power Authority (Power Authority), the 

Alaska Electric Generation & Transmission Cooperative (AEG&T),3 Chugach, HEA, 

Golden Valley Electric Association (GVEA), Matanuska Electric Association (MEA), 

3 AEG&T is the prior iteration of the Alaska Electric & Energy Cooperative, 

Inc. (AEEC), which identified itself in pleadings as an “electrical utility cooperative 

providing transmission (115kV) and related ancillary services over its transmission 

facilities to electric utility companies in Alaska, including to its sole member, [HEA].” 

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the Municipality of Anchorage d/b/a Municipal Light & Power (ML&P), and the City 

of Seward d/b/a Seward Electric System. Under the Power Sales Agreement, the Power 

Authority — the predecessor to today’s Alaska Energy Authority — agrees to sell, and 

the other parties agree to purchase, certain shares of the Bradley Lake Project’s energy 

capacity. The Power Sales Agreement designates the physical point “at which the 

Purchasers accept delivery” of their Project energy: the switching station at Bradley 

Junction. The Agreement further provides that absent mutually-agreed termination or 

renewal, it remains in effect either for “50 years after the Date of Commercial Operation” 

or until all bonds issued to fund the Project have been “satisfied or provided for, 

whichever occurs later.” 

The Power Sales Agreement also establishes a committee — generally 

referred to as the Project Management Committee or BPMC — “responsible for the 

management, operation, maintenance, and improvement of the Project,” including the 

“scheduling, production and dispatch” of Bradley Lake energy. The Project 

Management Committee, composed of the Power Authority and the purchasing utilities, 

is required among other things to “[a]dopt procedures . . . for the resolution of disputes 

that may arise between or among the Purchasers and the Authority concerning the 

interpretation of this Agreement, the obligations created by this Agreement, or the 

performance of such obligations.” 

b. The Services Agreement 

Chugach and the other energy-purchasing utilities, including HEA and 

AEG&T, contemporaneously entered into the Agreement for the Wheeling of Electric 

Power and for Related Services (Services Agreement), which governs the transmission 

of Bradley Lake energy from the Project to the railbelt utilities’ own transmission 

systems. The Services Agreement contemplates that purchasing utilities will deliver 

Bradley Lake energy to Chugach at the Soldotna Substation, which is defined in the 

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Agreement as “[t]he Soldotna Substation owned and operated by [HEA], or any 

successor facility at which Bradley Lake Energy can be and is delivered to Chugach at 

Chugach’s metering point by a Wheeling Utility for services under this Agreement.” 

The utility may then request that Chugach provide “wheeling services” (meaning a 

utility’s use of its facilities to transmit another utility’s electricity).4 A request for 

wheeling services requires Chugach to wheel the energy to the requesting utility’s 

“Delivery Point” designated in the Agreement. The “applicable wheeling rates” are to 

be established and modified “only in accordance with . . . Appendix A” attached to the 

Agreement. 

Alternatively, the utility may ask Chugach to store or purchase the 

electricity delivered to the Soldotna Substation, and Chugach is required to comply; 

compensation for these services is also set out in the Agreement. The Agreement further 

obligates Chugach to “operate, maintain, and repair the electrical facilities used to 

perform the services provided hereunder,” subject to “the capability of Chugach’s 

generation and transmission system” as it then existed and to Chugach’s priority to first 

meet “the safety, efficiency, and economic needs of [its] own system.” 

The Services Agreement requires the parties to meet at least quarterly to 

discuss any “difficulties encountered” or alleged failures to perform; and the parties 

agree that “any further procedures for dispute resolution under [the Services Agreement] 

shall be entrusted (if the Authority concurs) to good faith negotiation and adoption by 

4 See Puget Sound Energy v. State, Dep’t of Revenue, 248 P.3d 1043, 1046 

n.6 (Wash. App. 2010) (noting regulatory definition of “wheeling” as “the activity of 

delivering or distributing electricity owned by others using power lines and equipment 

of the person doing the wheeling”); see also Matanuska Elec. Ass’n v. Municipality of 

Anchorage, 184 P.3d 19, 21 n.4 (Alaska 2008) (defining “wheeling rates” as “the 

compensation [a utility] receives for the joint use and interconnection of [its transmission 

line]”). 

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the Project Management Committee, with Chugach’s affirmative vote required for 

adoption of such procedures.” Finally, the Services Agreement provides that the 

“Agreement in its entirety reflects the meeting of the minds among the Parties” and that 

“there exists no agreement among the Parties that services will be provided to the 

Wheeling Utilities for Bradley Lake Energy . . . on terms or conditions other than as set 

forth in this Agreement.” 

c. The Capability Agreement 

A third Bradley Lake Agreement is the Amendment to Agreement for Sale 

of Transmission Capability (the Capability Agreement), executed by HEA, AEG&T, 

Chugach, GVEA, and ML&P.5 The Capability Agreement confirms HEA’s intent to 

construct two transmission lines from Bradley Junction, one of them “the Soldotna 

Segment” between Bradley Junction and the Soldotna Substation. HEA commits to sell, 

and the other parties commit to buy, shares of the carrying capacity of the Soldotna 

Segment equal to their shares in the Bradley Lake Project. HEA assumes the duty to “in 

good faith and at all times operate, maintain and repair the electrical facilities used to 

perform the services provided” under the Capability Agreement. The parties again 

“agree that any procedures for dispute resolution under [the Capability Agreement] be 

entrusted to good faith negotiations and adoption by the Project Management 

Committee,” this time “with HEA’s affirmative vote required for adoption of such 

procedures.” 

In sum, thus, the Bradley Lake Agreements describe the following 

transmission pathway for Bradley Lake energy purchased by utilities other than HEA: 

(1) pursuant to the Power Sales Agreement, the utilities accept the Power Authority’s 

5 TheCapabilityAgreementisactuallyanamendmenttoanearlier agreement 

among the same parties, preexisting completion of the Bradley Lake Project, for “the sale 

and purchase of a portion of the transmission capability of the Soldotna Segment.” 

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delivery of energy at the Bradley Lake Substation; (2) pursuant to the Capability 

Agreement, HEA transmits the other utilities’ energy from there to the Soldotna 

Substation via the Soldotna Segment; and (3) pursuant to the Services Agreement, 

Chugach wheels the energy from there to the Quartz Creek Substation via the S/Q Line 

before wheeling the energy farther north along its own transmission lines to delivery 

points designated by the railbelt utilities. 

4. Legislative action 

Bradley Lake’s energy potential was studied for decades before the Project 

became a reality.6 In 1982 the Power Authority assumed responsibility for moving it 

forward.7 At that time the Alaska Public Utilities Commission (APUC) — the 

predecessor of the RCA8 — “did not have review and approval authority for power sales 

contracts” such as those contemplated by the Project.9 That changed in 1986, when the 

legislature amended AS 42.05.431 to require that wholesale power agreements receive 

6 See ALASKAENERGY AUTH., supra note1 (“Thepowergeneration potential 

of Bradley Lake was first studied by the U.S. Corps of Engineers in 1955. The project 

was authorized by Congress in 1962.”); see also Ch. 90, § 1, SLA 1981 (appropriating 

funds); Ch. 92, § 69, SLA 1981 (amending appropriation). 

7 See Ch. 133, § 20, SLA 1982 (“Subject to review of the feasibility study 

and the plan of finance by the division of budget and management in the Office of the 

Governor under AS 44.83.384(c)(2), the Bradley Lake hydroelectric project is approved 

as a project of the Alaska Power Authority under AS 44.83.384(c)(1).”). 

8 See Amerada Hess Pipeline Corp. v. Regulatory Comm’n of Alaska, 176 

P.3d 667, 670 (Alaska 2008). 

9 Hearing on H.B. 356 Before the Sen. Res. Comm., 15th Leg., 2d Sess. 

(Feb. 29, 1988) (testimony of Rob LeResche, Exec. Dir., Alaska Power Auth.). 

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the APUC’s approval.10 

A bill introduced the following year, supported by the Power Authority,11 

was intended in part to remove the APUC’s jurisdiction to review wholesale power 

agreements.12 The bill was passed by the legislature13 but vetoed by Governor Cowper,14 

and his veto was sustained.15 The governor’s veto message focused on the bill’s 

deregulatory effect on dozens of “small public utilities in the state”; the governor 

specifically “did not reach the question of whether the exemption of Bradley Lake from 

[APUC] review is in the public interest at this time,” saying he “hope[d] to have an 

opportunity to review that question in the interim.”16 

Meanwhile, interested utilities were waiting to execute the Power Sales 

Agreement pending the outcome of legislative action on proposed electric energy 

interties fromHomer to Fairbanks.17 By the end of the 1987 legislative session, however, 

10 See Ch. 104, § 5, SLA 1986; see also AS 42.05.431(b) (“A wholesale 

power agreement between public utilities is subject to advance approval of the 

commission.”). 

11 Senate Bill (S.B.) 22, 15th Leg., 1st Sess. (1987); Hearing on H.B. 356 

Before the Sen. Res. Comm., 15th Leg., 2d Sess. (Feb. 29, 1988) (testimony of 

Bob LeResche, Exec. Dir., Alaska Power Auth.). 

12 House Committee Substitute for Committee Substitute for Sponsor 

Substitute for Senate Bill (H.C.S.C.S.S.S.S.B.) 22, 15th Leg., 1st Sess. (1987). 

13 1987 Senate Journal 1610-11. 

14 1987 Senate Journal 1731. 

15 1987 Senate Journal 1756-57. 

16 1987 Senate Journal 1731. 

17 Hearing on H.B. 356 Before the Sen. Res. Comm., 15th Leg., 2d Sess. 

(continued...) 

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the legislature had not authorized the interties or appropriated funds for them, and there 

was “not a lot of hope” for such action in the future.18 At that point, the Power Authority 

refused to proceed with the Bradley Lake Project until it had binding agreements for the 

sale of Bradley Lake energy “in hand.”19 In later testimony to the legislature, the Power 

Authority’s executivedirector, Bob LeResche, described thenegotiationsresulting in the 

“paper intertie” laid out in the Services and Capability Agreements, by which the 

interested utilities “concocted a way in which they could get the Bradley power 

distributed to each of the buyers on existing interties with people paying certain amounts 

under certain principles.”20 

The Bradley Lake Agreements, however, would only become effective 

upon receipt of “all necessary approvals.”21 And as LeResche explained, there were only 

two ways to get the necessary approvals: “One is to run them through the [APUC] and 

through the courts thereafter if someone appeals the [APUC’s] decision . . . [a]nd the 

second way is by passing [a] bill which eliminates the necessity for those [APUC] 

agreements.”22 

To address these concerns the House Rules Committee, at the governor’s 

request, introduced a bill in January 1988 that again sought to amend AS 42.05.431 to 

17 (...continued)
 

(Feb. 29, 1988) (testimony of Bob LeResche, Exec. Dir., Alaska Power Auth.).
 

18 Id. 

19 Id. 

20 Id. 

21 Id. 

22 Id. 

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limit regulatory oversight of Bradley Lake power.23 During a House Judiciary 

Committee hearing on the bill, H.B. 356, the committee chair described the bill’s 

threefold purpose: (1) “to ensure the completion of Bradley Lake in a timely manner 

without any potential delays caused by intervenors in [APUC] hearings”; (2) to ensure 

that Project bondholders “areadequately secured”; and (3) to “minimize the deregulation 

of the railbelt utility” (ostensibly addressing the concern of Governor Cowper’s 1987 

veto).24 During a later hearing of the Senate Resources Committee, LeResche stressed 

the importance of avoiding the costs of further delay, which he estimated to be “10 to 12 

million dollars a year as we sit on this project”; he also testified that “the bond buying 

community puts a significant premium on revenue bonds . . . secured by contracts” that 

are subject to regulatory review, meaning that “the rate payers who are going to pay off 

these bonds . . . would have to pay significantly higher interest on the bonds if the 

contract were under [APUC] review now and in the future.”25 

23 See H.B. 356, 15th Leg., 2d Sess. (1988) (“An Act relating to the authority 

of the Alaska Public Utilities Commission in connection with certain activities of the 

Alaska Power Authority . . . .”). 

24 Hearing on H.B. 356 Before the House Judiciary Comm., 15th Leg., 2d 

Sess. (Jan. 28, 1988) (statement of Representative John Sund, Chair, House Judiciary 

Comm.). In the order here under review, the RCA found that the legislative history of 

AS 42.05.431(c) “shows that this exception was intended to ‘minimize the deregulation 

of railbelt utilities.’ ” This appears to be incorrect. Chairman Sund’s comments logically 

refer to the fact that H.B. 356 omitted that aspect of S.B. 22 that would have removed 

APUC “regulation over . . . 67 small public utilities in the state”; it was this deregulatory 

effect that had prompted Governor Cowper’s veto of S.B. 22. 1987 Senate Journal 1731. 

The perception that H.B. 356 minimized deregulation was due to what the bill omitted, 

not what it contained. 

25 Hearing on H.B. 356 Before the Sen. Res. Comm., 15th Leg., 2d Sess. 

(Feb. 29, 1988) (testimony of Bob LeResche, Exec. Dir., Alaska Power Auth.). 

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LeReschealso describedthenegotiating process that resultedin theBradley 

Lake Agreements.26 He explained the Agreements’ interdependency and why H.B. 356 

should be viewed as excluding all of them from regulatory oversight: “[T]he bargain 

between the State and the utilities isn’t just the power sales agreement, nor just the 

wheeling agreements, but it’s the intertwined sum of those three agreements. That’s the 

bargain they’ve struck.”27 Because of this contractual interdependency, he testified, 

“[t]here is no logic and no good sense to trying to excise some of those agreements out 

for special regulatory treatment from the others.”28 

House Bill 356 was passed into law in 1988.29 As enacted, it amended 

AS 42.05.431 by adding the following subsection: 

(c) Notwithstanding (b) of this section [requiring APUC 

review of wholesale power agreements], 

(1) a wholesale agreement for the sale of power from a 

project licensed by the Federal Energy Regulatory 

Commission on or before January 1, 1987, and related 

contracts for the wheeling, storage, regeneration, or 

wholesale repurchase of power purchased under the 

agreement, entered into between the Alaska Power Authority 

and one or more other public utilities or among the utilities 

after October 31, 1987, and before January 1, 1988, and 

amendments to the wholesale agreement or related contract, 

are not subject to review or approval by the commission until 

all long-term debt incurred for the project is retired; and 

26 Hearing on H.B. 356 Before the House Judiciary Comm., 15th Leg., 2d 

Sess. (Jan. 27, 1988) (testimony of Bob LeResche, Exec. Dir., Alaska Power Auth.). 

27 Id. 

28 Id. 

29 Ch. 11, §§ 1, 2, SLA 1988. 

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(2) a wholesale agreement or related contract described in (1) 

of this subsection may contain a covenant for the public 

utility to establish, charge, and collect rates sufficient to meet 

its obligations under the contract; the rate covenant is valid 

and enforceable.[30] 

The bill also amended AS 42.05.511 — subsequently renumbered to AS 42.05.431(e)31 

— by adding the following subsection: 

(d) Validated costs incurred by a utility in connection with 

the related contracts described in AS 42.05.431(c)(1) must be 

allowed in the rates charged by the utility. In this subsection, 

“validated costs” are the actual costs that a utility uses, under 

the formula set out in related contracts described in 

AS 42.05.431(c), to establish rates, charges for services and 

rights, and the payment of charges for services and rights. 

This subsection does not grant the commission jurisdiction to 

alter or amend the formula set out in those related 

contracts.[32] 

B.	 Proceedings 

1. The RCA proceedings 

In November 2013, in anticipation of the expiration of the HEA/Chugach 

lease, HEA filed two tariff letters with the RCA. One — the transmission tariff 

application —sought “approval of transmission and related ancillary services tariffs” for 

HEA’s contemplated assumption of the S/Q Line’s operation. The other — the line loss 

tariff application — sought compensation for “transmission line losses due to 

transmitting energy from the [Project].” A number of utilities objected to HEA’s choice 

of forum: Chugach, GVEA, MEA, and ML&P (the Protesting Utilities). They argued 

30 Id. § 1. 

31 See AS 42.05.431. 

32 Ch. 11, § 2, SLA 1988. 

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that the RCA should reject the tariff filings because they sought to “fundamentally 

change the rights, obligations, and rates associated with wheeling Project power across 

the S/Q line.” According to the Protesting Utilities, “[t]hose rights, obligations, and rates 

are defined in the Bradley Lake Agreements,” which, along with “any amendments to 

those agreements, are exempt from Commission review or approval under 

AS 42.05.431(c).” 

In June 2014 the RCA issued Order 10, entered in both the transmission 

tariff docket and the line loss docket. Order 10 addressed the RCA’s authority to decide 

HEA’s tariffapplications,theapplications’ substance, and anumber ofprocedural issues. 

The RCA prefaced the summary of its findings and conclusions by stating that they were 

“[b]ased on the record developed so far in these dockets, and only for the purpose of 

setting interim and refundable inception rates for wheeling Bradley Lake energy from 

Soldotna Substation to Quartz Creek Substation and for the purpose of denying 

implementation of HEA’s line loss tariff.” 

The RCA acknowledged that the Bradley Lake Agreements, “and any 

amendments to them, including future amendments, [were] not to be submitted to us for 

review or approval before going into effect.” But it concluded that the Agreements did 

not specifically address the effect of the expiration of the HEA/Chugach lease and did 

not preclude the RCA from setting rates for HEA’s subsequent provision of wheeling 

services from the Soldotna to Quartz Creek Substations over the S/Q Line. 

Turning to the substance of the tariff applications, the RCA denied the line 

loss tariff application on the understanding that the parties had “reached tacit, if not 

explicit, agreement regarding compensation for Bradley Lake related line losses on the 

HEA system.” It denied HEA’s transmission tariff application on grounds that the rates 

sought were unjust and unreasonable. It further noted, however, that “HEA is currently 

providing wheeling services for Bradley Lake energy over the SQ Line without 

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compensation,” and it approved an “interim and refundable inception rate for wheeling 

Bradley Lake energy over the SQ Line” retroactive to January 1, 2014. The RCA 

conditioned its approval of interim rates on HEA’s compliance with certain filing 

requirements and stated that “[f]urther proceedings [were] necessary . . . to finally 

determine whether the rates and rules contained in [the transmission tariff application 

were] just and reasonable.” The RCA concluded that “[n]o substantive or procedural 

matters remain[ed] in [the line loss docket],” closed that docket, and advised the parties 

of their rights to appeal it as “the final decision in [the line loss docket].” 

TheProtestingUtilities —Chugach, GVEA, MEA,and ML&P —appealed 

Order 10 to the superior court. 

2. The Project Management Committee proceedings 

In the meantime the same issues were being considered by the BPMC, the 

Project Management Committee established under the Bradley Lake Agreements. In 

December 2013 the BPMC issued a resolution noting the upcoming expiration of the 

HEA/Chugach lease and HEA’s November 2013 tarifffilings with the RCA. The BPMC 

asserted that it had the “primary jurisdiction and authority . . . to resolve” the dispute, 

urged the interested parties to mediate, and formed a committee to recommend 

resolutions. 

In a May 2014 order the BPMC affirmed its authority over the dispute both 

because of the dispute-resolution provisions of the Bradley Lake Agreements and 

because of “the exemption of the Bradley Lake Agreements from any regulatory 

oversight under AS 42.05.431(c),” which allowed the participants’ “rights and 

responsibilities . . . over electrical facilities and rates . . . to be addressed and resolved by 

the industry through the specialized experience and expertise of the BPMC.” The BPMC 

then concluded that the Bradley Lake Agreements were not affected by the expiration of 

the HEA/Chugach Lease and that Chugach was still entitled to wheel Project energy over 

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the S/Q Line. The BPMC further concluded, however, that while “HEA is adequately 

compensated under the Bradley Lake Agreements for the use of HEA’s system and is 

entitled to no additional compensation,” “in the interest of reaching a resolution . . . , 

HEA is to receive additional payments from the other Project Participants for the 

continuing use of HEA’s facilities north of the Soldotna Substation throughout the term 

of the Services Agreement.” The BPMC set the payments to include a “fixed 

component” of $300,000 a year and a “variable component” reflecting HEA’s costs of 

performing the maintenance and repair that the Services Agreement had contractually 

delegated to Chugach. 

3. The superior court proceedings 

The judicial process was first invoked in April 2014, when AEEC, HEA’s 

transmission affiliate,33 filed a complaint seeking restitution from Chugach, GVEA, and 

ML&P for unjust enrichment based on its wheeling of their electricity along the S/Q Line 

following the lapse of the HEA/Chugach lease. MEA intervened. AEEC amended its 

complaint to seek not only restitution for unjust enrichment but also declaratory relief, 

including a declaration that the RCA, “not the BPMC, has jurisdiction to determine just 

and reasonable rates for the transmission of electric energy across AEEC’s transmission 

system.” 

With their answer the Protesting Utilities filed a third-party complaint 

naming HEA and a counterclaim seeking, among other things, a declaration that “the 

Bradley Lake Agreements and any amendments to those agreements are exempt fromthe 

RCA’s jurisdiction.” They also sought a permanent injunction prohibiting AEEC and 

HEA from “seeking approval from the RCA of their Tariff Filings as they relate to 

matters governed by the Bradley Lake Agreements.” AEEC and HEA then moved to 

See supra note 3. 

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33 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

stay their suit “pending final resolution of the matters presently pending before the RCA 

or the granting of a petition for review,” noting that “[t]he RCA ha[d] interpreted the 

scope of its authority and taken jurisdiction over this matter.” 

When the Protesting Utilities filed their superior court appeal from the 

RCA’s Order 10, the RCA moved to dismiss the appeal on grounds of untimeliness and 

the lack of an appealable final order. Ultimately the superior court, without ruling on the 

RCA’s motion to dismiss the appeal and over its objection, exercised its discretionary 

authority under Alaska Civil Rule 42(a) to consolidate the administrative appeal with the 

AEEC lawsuit for the purpose of litigating “a common question of law”: “whether the 

[RCA] had the authority (i.e., subject matter jurisdiction) to address the issues raised in 

[the transmission tariff and line loss tariff dockets].” The court stayed other proceedings 

in both cases pending its decision of the jurisdictional issue. It invited the parties in both 

cases, including the RCA, to address the jurisdictional issue, and all of the parties, 

including the RCA, did so. 

The superior court issued its order in the consolidated cases in May 2015. 

It concluded that the “RCA did not have the authority to review or determine the interim 

rates for wheeling Bradley Lake energy from the Soldotna Substation to the Quartz 

Creek Substation or to review or determine line loss related to wheeling Bradley Lake 

energy over HEA’s transmission system.” The court observed that the Bradley Lake 

Agreements were signed after the HEA/Chugach lease was already in effect, ostensibly 

“with [the parties’] full knowledge of the possessory status of the S/Q Line.” The court 

reasoned that unless otherwise agreed, “the termination of a lease does not change the 

rights and obligations of parties to a separate and unrelated contractual agreement, much 

less terminate that agreement.” It cited the Services Agreement’s integration clause: 

“This Agreement in its entirety reflects the meeting of the minds among the Parties . . . 

and there exists no agreement among the Parties that services will be provided to the 

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Wheeling Utilities for Bradley Lake Energy . . . on terms or conditions other than as set 

forth in this Agreement.” The court concluded, “Because the Bradley Lake Agreements 

are not affected by the lease agreement, RCA is statutorily exempted from resolving 

disputes that arise from the Bradley Lake energy running across the S/Q Line.” The 

court therefore vacated Order 10, remanded the administrative appeal to the RCA “for 

clarification consistent with this order,” and lifted the stay on further proceedings on 

AEEC’s lawsuit. 

The RCA and HEA filed petitions for review, which we granted and 

converted to appeals because the superior court’s order effectively resolved all issues in 

the administrative appeal. Their challenges center on whether Order 10 was a final, 

appealable order; whether the superior court properly decided the administrative appeal 

in the absence of an agency record; and whether the RCA had authority to issue 

Order 10. 

III. STANDARD OF REVIEW 

“When the superior court acts as an intermediate court of appeal in an 

administrative matter, we ‘independently review and directly scrutinize the merits of the 

[agency]’s decision.’ ”34 “We exercise our independent judgment on [any] issue 

concerning the scope of an agency’s authority since it involves statutory interpretation, 

or analysis of legal relationships, about which courts have specialized knowledge and 

expertise.”35 

34 Nw. Med. Imaging, Inc. v. State, Dep’t of Revenue, 151 P.3d 434, 438 

(Alaska 2006) (alteration in original) (quoting Alyeska Pipeline Serv. Co. v. DeShong, 

77 P.3d 1227, 1231 (Alaska 2003)). 

35 Far N. Sanitation, Inc. v. Alaska Pub. Utils. Comm’n, 825 P.2d 867, 871 

n.6 (Alaska 1992); see also Nw. Med. Imaging, 151 P.3d at 438 (“Whether an agency 

acting in a judicial capacity or the superior court has subject matter jurisdiction is a 

(continued...) 

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Issues of ripeness are subject to de novo review.36 “Whether an appeal is 

timely is a question of law,”37 but a superior court’s decision to relax the timeliness rules 

is reviewed for abuse of discretion.38 

“Questions ofcontract interpretationaregenerallyquestions oflawthatwill 

be reviewed de novo.”39 

IV. DISCUSSION 

TheRCAand HEAraiseseveral challengesto thesuperior court’sappellate 

jurisdiction: that Order 10 was not a final, appealable order; that to the extent it was final 

and appealable the Protesting Utilities’ appeal was late; that the superior court erred by 

ruling on the RCA’s jurisdiction without the benefit of the agency record, which had not 

yet been filed; and that the superior court erred by allowing the Protesting Utilities to 

submit evidence in support of their jurisdictional arguments that had not been considered 

by the RCA. We reject these arguments and conclude that the superior court properly 

exercised its appellate jurisdiction. 

On the merits, we also agree with the superior court’s conclusion: that the 

RCA lacked the regulatory authority to issue Order 10. 

35 (...continued)
 

question of law, subject to de novo review by this court.”).
 

36 State v. Am. Civil Liberties Union, 204 P.3d 364, 367-68 (Alaska 2009). 

37 Griswold v. City of Homer, 252 P.3d 1020, 1025 (Alaska 2011). 

38 See Anderson v. State, Commercial Fisheries Entry Comm’n, 654 P.2d 

1320, 1322 (Alaska 1982). 

39 Norville v.Carr-Gottstein Foods Co.,84P.3d 996, 1000 n.1 (Alaska2004). 

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A.	 The Superior Court Had Jurisdiction To Determine The RCA’s 

Authority To Issue Order 10. 

The superior court has appellate jurisdiction over “final orders” of the 

RCA.40 Order 10 contained a paragraph designating it as a “Final Order” and setting out 

the parties’ appeal rights, with this qualification: “This order constitutes the final 

decision in Docket U-13-204,” the line loss docket. The order did not purport to be the 

final decision in the transmission docket, and in fact, as explained above, it specifically 

contemplated further proceedings on HEA’s transmission tariff application. 

The RCA and HEA accordingly contend that Order 10 was interlocutory 

and not appealable as to the transmission docket because it did not dispose of the entire 

case.41 They further contend that although Order 10 was final as to the line loss docket 

— denying HEA’s line loss tariff application without prejudice and closing that docket 

on grounds that the parties appeared to have reached agreement — the line loss docket 

cannot serve as the vehicle for judicial review of the jurisdictional issue because there 

was no losing party with a reason to appeal, and, in addition, a finding of jurisdiction was 

not necessary to that part of the order since all it did was deny relief. 

In response, the Protesting Utilities point out that their administrative 

appeal was consolidated with AEEC’s lawsuit, in which both sides sought declaratory 

relief addressing the issue of the RCA’s authority to approve rates for wheeling Bradley 

40 See AS 22.10.020(d) (“The superior court has jurisdiction in all matters 

appealed to it from . . . [an] administrative agency when appeal is provided by law. . . .”); 

AS 42.05.161(a) (providing “that final administrative determinations by the commission 

are subject to judicial review under [the Administrative Procedure Act, AS 44.62] as 

provided in AS42.05.551(a)”); AS 42.05.551(a) (“All finalorders ofthecommission are 

subject to judicial review in accordance with AS 44.62.560 - 44.62.570.”). 

41 See Ostman v. State, Commercial Fisheries Entry Comm’n, 678 P.2d 1323, 

1327 (Alaska 1984). 

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Lake energy over the S/Q Line. The superior court’s order was entered in the 

consolidated cases, and the RCA, though not a party to the AEEC lawsuit, was a party 

to the consolidated cases by virtue of the appeal and had the same right and opportunity 

as every other party to brief and argue the essential issue of its regulatory jurisdiction. 

But the RCA counters that despite consolidation it was a party only to the administrative 

appeal; that the appeal was invalid for a number of reasons; and that the RCA cannot be 

bound by a decision that was lawfully entered only in the lawsuit to which it was not a 

party. 

We conclude, however, that the issue of the RCA’s jurisdiction was 

properly decided in both the administrative appeal and the AEEC lawsuit. Even if Order 

10 was not a final, appealable order with regard to the transmission docket — an issue 

we need not decide — it was expressly made a final, appealable order with regard to the 

line loss docket. The Protesting Utilities appealed fromOrder 10 without differentiation; 

their appeal encompassed both dockets. And Order 10 in its entirety was premised on 

the RCA’s authority to issue it. 

The RCA began its discussion by stating that its findings and conclusions 

were “for the purpose of setting interim and refundable inception rates for wheeling 

Bradley Lake energy from Soldotna Substation to Quartz Creek Substation and for the 

purpose of denying implementation of HEA’s line loss tariff.” (Emphasis added.) Its 

subsequent discussion of its authority repeatedly referenced the line loss tariff as well as 

the transmission tariff, finding that HEA’s filing of the line loss tariff did not violate the 

Power Sales Agreement but did conflict with requirements of the Capability Agreement 

and therefore was outside the RCA’s authority. Thoughrecognizing thelikely resolution 

of the line loss dispute by “a tacit agreement . . . which appears satisfactory to the parties 

for linelosscompensation toHEA, making [thelineloss tariffapplication]unnecessary,” 

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the RCA nonetheless found that the application “proposed rates which are unjust and 

unreasonable in their entirety” and denied interim implementation. 

The RCA and HEA contend that the Protesting Utilities cannot properly 

appeal from an order that gave them “the relief (the denial of the line loss tariff) which 

they sought below”; they contend that any appeal from Order 10 as it related to the line 

loss docket was moot. But in Alaska the mootness doctrine “is a matter of judicial 

policy” and, unlike its federal counterpart, does not act as a limit on jurisdiction.42 The 

court had the jurisdiction to hear an appeal from the line loss docket even if that appeal 

could have been properly dismissed as moot. We therefore consider the superior court’s 

decision to rule on the issue of the RCA’s authority in the consolidated cases not as an 

assertion of appellate jurisdiction but as a prudential decision, implicating issues of 

ripeness and mootness that we review de novo.43 

It is not reasonably disputed that the issue of the RCA’s authority was 

central to both the AEEC lawsuit and the administrative appeal, that it remained 

genuinely at issue, and that it was implicated in all proceedings going forward. Nor is 

it reasonably disputed that all interested parties were before the court in the consolidated 

cases, and all had the opportunity to be heard on the issue of the RCA’s authority. It was 

42 Bowers Office Prods., Inc. v. Univ. of Alaska, 755 P.2d 1095, 1096-97 

(Alaska 1988); see also Falcon v. Alaska Pub. Offices Comm’n, 570 P.2d 469, 474-75 

(Alaska 1977) (“Since the requirement of adversity is neither federally mandated nor 

required by the Alaska Constitution, the court’s requirement of adversity as a component 

of standing is essentially a judicial rule of self-restraint.”). 

43 See Alaska Cmty. Action on Toxics v. Hartig, 321 P.3d 360, 366 (Alaska 

2014); see also State v. Am. Civil Liberties Union, 204 P.3d 364, 367-68 (Alaska 2009) 

(“[T]his court is the ultimate arbiter of . . . issues [of standing, mootness, and ripeness] 

and we review de novo a superior court’s ripeness determination.”). 

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certainly efficient to decide the issue only once at the superior court level. We thus 

conclude that the issue was ripe and not moot.44 

The RCA and HEA contend, however, that the issue should not have been 

decided yet, because the RCA’s own decision-making process wasongoingat theagency 

level; any mistake in its assertion of jurisdiction could “be remedied in the further agency 

proceedings or on appeal from a final order.”45 HEA points out that the RCA approved 

only rates that were interim and fully refundable, and its assertion of jurisdiction, if 

mistaken, could be easily remedied following an appeal in the usual course from a final, 

appealable order. 

But while Order 10’s approval of rates was expressly interim, its decision 

of the RCA’s jurisdiction to set those rates was not. The order’s relevant conclusions 

include both (1) that the RCA has authority to establish wheeling rates for the S/Q Line 

upon expiration of the HEA/Chugach lease and (2) that “[f]urther proceedings are 

necessary in [the transmission tariff docket] to finally determine whether the rates and 

rules contained in [HEA’s tariff application] are just and reasonable.” The Order’s 

discussion of the first issue, the RCA’s authority, closely examines AS 42.05.431, 

44 “The requirement of ‘ripeness’ means there must be ‘a substantial 

controversy, between parties having adverse legal interests, of sufficient immediacy and 

reality to warrant the issuance of a declaratory judgment.’ ” Lowell v. Hayes, 117 P.3d 

745, 757 n.61 (Alaska 2005) (quoting Brause v. State, Dep’t of Health &Soc. Servs., 21 

P.3d 357, 359 (Alaska 2001)). “A claim is moot if there is no ‘present, live controversy’ 

or if it is impossible to provide the relief sought.” Alaska Cmty. Action on Toxics, 321 

P.3d at 366 (quoting Ulmer v. Alaska Rest. &Beverage Ass’n, 33 P.3d 773, 776 (Alaska 

2001)). 

45 The RCA’s and HEA’s challenge to finality is in the context of their 

argument that Order 10 was not a final, appealable order with regard to the jurisdictional 

issue. We consider the challenge in what we believe is its proper context: as a challenge 

to the superior court’s prudential decision to consider an issue that may have been moot 

or not ripe for review. 

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including its legislative history, as well as the terms of the Bradley Lake Agreements to 

determine what effect, if any, they may have on the issue. The Order distinguishes the 

RCA’s regulatory authority from the BPMC’s contractual dispute-resolution authority. 

The Order concludes “that wheeling of Bradley Lake energy over the SQ Line is no 

longer governed by the Bradley Lake Agreements” and that the RCA therefore has 

“authority to regulate both the terms and rates under which HEA provides this wheeling 

service.” This conclusion — a necessary first step to the next, in which the RCA 

addresses the merits of HEA’s tariff applications — appears final; there is nothing about 

the discussion that invites or anticipates further proceedings on the issue of the RCA’s 

authority. 

In Alaska Consumer Advocacy Program v. Alaska Public Utilities 

Commission (ACAP), we reviewed an order allowing a telephone utility to begin 

collecting “charges for operator assistance with intrastate calls” pending the 

commission’s consideration of a new “rate design” for the utility’s intrastate and 

interstate rates.46 We held that the order — Order 37 — was “final and appealable 

because it [was] fully effective and [had] practical consequences.”47 We explained that 

the order’s “effects [were] felt by Alaska consumers” to the extent that consumers were 

paying “operator assistance charges because of it.”48 We further explained that “[s]ince 

the challenges [to Order 37 were] procedural and not substantive challenges to the design 

of the rate, these challenges were as ripe for review on the day the order was entered as 

they will ever be”; “[s]ubsequent notice and production of evidence in ongoing 

46 793 P.2d 1028, 1031 (Alaska 1990). 

47 Id. at 1032. 

48 Id. 

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proceedings could not possibly remedy procedural defects in the promulgation of 

Order 37.”49 

We conclude that the same rationale applies here. The challenge to the 

RCA’s assertion of jurisdiction for purposes of Order 10 was not a challenge to the 

interimrates per se, which were subject to modification as the proceedings continued and 

were refundable if not ultimately sustained. The challenge, rather, was to the RCA’s 

authority to address that subject at all. “Jurisdictional defects deprive the agency of [the] 

power to adjudicate or regulate the subject matter.”50 Further proceedings in the 

transmission docket could not possibly remedy the claimed jurisdictional defect; they 

could only perpetuate it. Thus, the challenge is “as ripe for review” now as it “will ever 

be.” 

HEA contends that our decision on this issue should be governed not by 

ACAP but rather by Far North Sanitation, Inc. v. Alaska Public Utilities Commission. 

51 

In that case, a garbage collection company filed an appeal following a final rate 

determination, challenging not the final order but only an interim order that had been 

issued 21 months earlier, which the company alleged “was unauthorized and illegal as 

retroactive ratemaking.”52 The APUCargued that the company waived its right to appeal 

the interim order because that order had itself been final and thus appealable within 30 

49 Id.
 

50
 Far N. Sanitation, Inc. v. Alaska Public Utils. Comm’n, 825 P.2d 867, 870 

(Alaska 1992). 

51 Id.
 

52
 Id. at 868-69. 

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days of its issuance.53 We observed that “[w]e employ a ‘practical’ test to determine 

whether or not an order is a final order,” by which we look to whether the order 

“completely and finally disposes of the contested claims on their merits.”54 We 

concluded that the interim order was not a final, appealable order because the 

commission had given the company “time to submit a tariff advice letter and a revenue 

requirements study in support of its rates.”55 

This case is fundamentally different from Far North Sanitation in that here 

there indisputably was a final, appealable order, though limited to one docket. The 

question is whether the judicial policies of ripeness or mootness should have prevented 

the superior court from deciding the issue of the RCA’s jurisdiction in the context of that 

appeal, when properly consolidated with an original lawsuit seeking an answer to the 

same question. We conclude that under the unique circumstances of this case it was 

proper for the superior court to decide the jurisdictional issue when it did. 

B.	 Other Alleged Procedural Deficiencies Do Not Affect The 

Validity Of The Superior Court Appeal. 

The RCA and HEA also contend that the superior court erred by deciding 

the appeal before the agency record had been prepared and by allowing the parties to 

submit affidavits and other materials in support of their jurisdictional arguments that had 

not first been presented to the RCA. They rely on AS 22.10.020(d), which provides that 

“hearings on appeal from a final order or judgment of [an] . . . administrative agency . . . 

shall be on the record unless the superior court, in its discretion, grants a trial de novo, 

53 Id. at 869. 

54 Id. at 869-70 (quoting Mukluk Freight Lines, Inc. v. Nabors Alaska 

Drilling, Inc., 516 P.2d 408, 411 (Alaska 1973)). 

55 Id. at 870. 

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in whole or in part,” and on the Appellate Rules, which define the record on appeal as 

“the original papers and exhibits filed with the administrative agency.”56 HEA identifies 

“five affidavits with 486 pages of sworn statements and exhibits” that the Protesting 

Utilities submitted “in support of their jurisdictional brief,” only part of which had been 

submitted to the RCA. 

But the parties to the AEEC lawsuit, an original action, were not 

constrained by the rules relating to an agency record on appeal. The superior court 

allowed themto submit documentary evidence regardless of whether it was in the agency 

record; presumably it would have allowed the RCA and HEA to do the same. And 

neither the RCA nor HEA points to any relevant evidence in the agency record that they 

lacked the opportunity to present in support of their own jurisdictional briefing. 

Furthermore, even if the superior court had erred in its consideration of evidence, it 

would not affect our review, which considers the agency decision de novo.57 

HEA also argues that the Protesting Utilities’ appeal from Order 10 was 

untimely because it was filed more than 30 days after the order was distributed. The 

Protesting Utilities counter that the petition for reconsideration HEA filed with the RCA 

tolled the time for appeal,58 but HEA contends that because the petition for 

reconsideration addressed only Order 10’s discussion of the transmission tariff docket, 

56 Alaska R. App. P. 604(b)(1)(A). 

57 Nw. Med. Imaging, Inc. v. State, Dep’t of Revenue, 151 P.3d 434, 438 

(Alaska 2006). We note that our own analysis of the jurisdictional issue, infra Section 

C, cites no evidence presented only in the superior court. 

58 “If a request for agency reconsideration is timely filed before the agency, 

the notice of appeal must be filed within 30 days after the date the agency’s 

reconsideration decision is mailed or otherwise distributed to the appellant, or after the 

date the request for reconsideration is deemed denied under agency regulations[,] 

whichever is earlier.” Alaska R. App. P. 602(a)(2). 

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it failed to toll the time for appealing Order 10 as it related to the line loss tariff docket. 

We reject HEA’s contention that Order 10 was two orders for purposes of calculating the 

effect of reconsideration on the time for appeal.59 But even if we accepted that argument, 

we would not conclude that the superior court abused its discretion by relaxing the 30­

day deadline, given the case’s unusual procedural posture and HEA’s failure to allege, 

let alone demonstrate, that it suffered any prejudice from an appeal it claims was filed 

23 days late.60 

C.	 By Contract And Statute, The RCA Lacks Authority To Regulate 

Wheeling Rates For Bradley Lake Energy Over The S/Q Line. 

No party disputes that until January 1, 2014, the rates for Chugach’s 

wheeling services of Bradley Lake energy over the S/Q Line were set by the Services 

Agreement. The substantive jurisdictional question before us is whether, upon the 

expiration of the HEA/Chugach lease for the Soldotna Substation, authority to set those 

wheeling rates reverted to the RCA. We conclude that such a reading of the Bradley 

Lake Agreements, and of the legislation insulating them from regulatory overview, 

would be contrary to the obvious intent of the Agreements and the statute. 

59 See Richter v. Richter, 330 P.3d 934, 937 n.2 (Alaska 2014) (rejecting 

argument that motions for reconsideration and new trial “did not affect the time for 

appealing the jurisdiction issue because they did not address it,” because “Rule 204(a)(3) 

does not extend the time for appealing only those issues that are addressed in post-trial 

motions; such a rule would needlessly foster piecemeal appeals”). 

60 See Anderson v. State, Commercial Fisheries Entry Comm’n, 654 P.2d 

1320, 1322 (Alaska 1982) (finding abuse of discretion in superior court’s failure to relax 

30-day time limit for appeal when appellant had “far from untenable” position that he 

was entitled to move for reconsideration before appealing, “[t]he agency ha[d] made no 

showing that the minimal (seventeen day) delay worked to its disadvantage,” and the 

consequences of denying an appeal were “severe”). 

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1.	 The parties intended the Services Agreement to govern the rates 

for wheeling Bradley Lake energy over the S/Q Line. 

The Agreements are clear about their intent. The “whereas” clauses 

prefacing the Services Agreement lay out the parties’ expectation that the State will 

someday finance construction of an intertie allowing transmission of Bradley Lake 

energy to the railbelt utilities; meanwhile, they need “some alternative solution to the 

problem of transmitting or otherwise utilizing Project power.” That “alternative 

solution,” they agree, is contained in the Services Agreement. The Services Agreement 

contemplates that Chugach will wheel the other utilities’ energy north from the Soldotna 

Substation, and it provides that “[t]he applicable wheeling rates shall be established 

initially, and shall be changed from time to time, only in accordance with the provisions 

of Appendix A attached hereto.” (Emphasis added.) The Agreement makes no mention 

of the HEA/Chugach lease, nor does it contemplate an alternative plan in case the lease 

is terminated. Indeed, in the Services Agreement the parties (including HEA) agree that 

“[t]his Agreement in its entirety reflects the meeting of the minds among the Parties, . . . 

and there exists no agreement among the Parties that services will be provided to the 

Wheeling Utilities for Bradley Lake Energy . . . on terms or conditions other than as set 

forth in this Agreement.” (Emphasis added.) The parties’ rights and obligations last for 

the Service Agreement’s term: 50 years from the date the Project began commercial 

operation, unless the Project itself is terminated or the parties invoke other contractual 

processes, not relevant here, for early termination. 

TheRCA’s conclusion thatHEA’stariffapplications did not seek to modify 

the Services Agreement relied on its definition of “Soldotna Substation,” which is: “The 

Soldotna Substation owned and operated by Homer Electric Association, Inc., or any 

successor facility at which Bradley Lake Energy can be and is delivered to Chugach at 

Chugach’s metering point by a Wheeling Utility for services under this Agreement.” 

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(Emphasis added.) The RCA noted the parties’ conflicting interpretations of this 

provision: HEA relied on it “to argue that changing the delivery point from HEA’s 

Soldotna Substation to Chugach’s Quartz Creek Substation is not a modification of the 

Services Agreement,” whereas the Protesting Utilities asserted “that the ‘successor 

facility’ language in the Services Agreement was meant only to incorporate movement 

of the delivery point from Soldotna Substation to the southern terminus of the proposed 

Southern Intertie.” The RCA rejected the Protesting Utilities’ argument, explaining that 

when the Services Agreement was being negotiated, the prospects for funding the 

southern intertie in the near future were dim, and it was unlikely to have played a 

prominent part in the parties’ expectations. The RCA therefore found “that the successor 

facility language was intended to cover circumstances where a Wheeling Utility 

delivered its share of Bradley Lake energy to Chugach at a Chugach metering point other 

than HEA’s Soldotna Substation.” Because Chugach could no longer accept delivery at 

the Soldotna Substation, the “successor facility” was necessarily “its metering point in 

Quartz Creek Substation.” And because moving the delivery point from Soldotna 

Substation to a “successor facility” was specifically contemplated by the Services 

Agreement, HEA’s tariff application for imposing new wheeling rates on the S/Q Line 

was consistent with the Agreement rather than an attempt to amend it. 

We consider the RCA’s conclusion to be somewhat beside the point, given 

the obvious purpose of the Agreements and the legislation — to remove the transmission 

pathway from the RCA’s rate-setting authority. Whether Chugach moved its metering 

point for Bradley Lake deliveries to Quartz Creek or another point north would not 

change the fact that the purchasing utilities needed to have their Bradley Lake energy 

wheeled across the S/Q Line and had agreed to a formula for setting those wheeling rates 

in the Services Agreement. 

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Moreover, we do not find the RCA’s interpretation of the Services 

Agreement persuasive. The Agreement does not explain how a “successor facility” is 

designated, but there is nothing to suggest that the designation may occur without the 

consent of the affected wheeling utility. Under the RCA’s interpretation, Chugach could 

next surrender its Quartz Creek Substation to another entity, moving its delivery point 

another step north and again prompting a change in rates as the new owner of Quartz 

Creek Substation filed a tariff application for wheeling services — services that, under 

the RCA’s interpretation, might no longer be covered by the Services Agreement. We 

note also that the Services Agreement specifically allows the parties to renegotiate their 

contract five years after the start of commercial production and “by unanimous 

agreement select an entity other than Chugach . . . to dispatch generation of the Project,” 

(emphasis added) after which the terms and conditions for providing those services may 

be changed, but only through negotiation and amendment. The Bradley Lake 

Agreements evidence an intent throughout that significant changes to the status quo will 

be agreed to by the affected participants or submitted to the BPMC for decision. 

Like the superior court, we conclude that the Bradley Lake Agreements 

clearly demonstrate the parties’ intent to restrict the setting of wheeling rates along the 

S/Q line to the schedule set in the Services Agreement and therefore to exclude it from 

the RCA’s jurisdiction. There is nothing in the Agreements to indicate that the 

expiration of the HEA/Chugach lease would change this fundamental understanding. 

2.	 The governing statute precludes RCA authority over ratesetting for the wheeling of Bradley Lake energy over the S/Q 

Line. 

Alaska Statute 42.05.431(a) undoubtedly grants authority to the RCA to 

establish “just and reasonable rate[s]” for services that are “subject to the jurisdiction of 

the commission.” Subsection (b) of the same statute provides that “[a] wholesale power 

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agreement between public utilities is subject to advance approval of the commission.”61 

Subsection (c) — added to the statute specifically to address the Bradley Lake 

Agreements — begins, “[n]otwithstanding (b) of this section,” and it identifies 

agreements that are not subject to RCA review, at least for a time. Wholesale power 

agreements “for the sale of power from a project licensed by [FERC] on or before 

January 1, 1987,” as well as related energy contracts and amendments, “are not subject 

to review or approval by the commission until all long-term debt incurred for the project 

is retired.”62 

The parties do not dispute that “all long-term debt incurred for the [Bradley 

Lake Project]” has not yet been retired, nor do they argue that the Services Agreement 

is not a “related contract” that falls within the statute’s exclusion from RCA jurisdiction. 

The import of this express statutory language is reinforced by the legislative history 

described above. Because of its concerns with regulatory delay, satisfying bondholders, 

and minimizing the cost to ratepayers, the legislature intended that rate-setting for the 

wheeling of Bradley Lake energy from the Project to the railbelt utilities — a path that 

necessarily includes the S/Q Line — was not subject to RCA review but rather entrusted 

to the participants’ contractual dispute-resolution process, primarily the BPMC. 

In Order 10, the RCA cited AS 42.05.431(e) in support of its jurisdiction, 

concluding that thefinalsentence, “which prohibits [theRCA]fromaltering or amending 

the cost of service formulas established in the Bradley Lake Agreements[,] . . . would not 

be required if [the RCA] were prohibited by AS 42.05.431(c) from reviewing the 

Bradley Lake Agreements for any purpose.” In response MEA cites to legislative 

testimony by Roger Kemppel, a utilities lawyer, who explained to the House Finance 

61 AS 42.05.431(b). 

62 AS 42.05.431(c)(1). 

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Committee that subsection (e) was intended to ensure that utilities in rate proceedings 

before the APUC would be allowed to include in those rates the “[v]alidated costs 

incurred . . . in connection with the related contracts.”63 As an example, Kemppel 

explained that if GVEA “is in on a rate hearing” and “[i]t’s paying certain wheeling 

cost[s] to Chugach,” those costs “should be allowed in the [GVEA] rate case” without 

being subject to APUC approval.64 MEA’s explanation is persuasive; the testimony 

shows that subsection (e) was intended to emphasize rather than minimize the limitations 

on regulatory review. 

We conclude that AS 42.05.431(c) was intended to preclude the RCA from 

asserting jurisdiction over rates for services that were covered by the Bradley Lake 

Agreements. Since wheeling services over the S/Q Line are governed by the 

Agreements, the RCA’s assertion of jurisdiction over the tariff applications at issue on 

this appeal was contrary to the statute and therefore unlawful. 

V. CONCLUSION 

We AFFIRMthe superior court’s decision reversing the RCA’s Order 10.65 

63 Hearing on H.B. 356 Before the House Fin. Comm., 15th Leg., 2d Sess. 

(Feb. 5, 1988) (testimony of Roger Kemppel, Gen. Counsel, Alaska Rural Elec. Coop. 

Ass’n). 

64 Id. 

65 We do not consider the RCA’s authority over joint-use agreements under 

AS 42.05.321 as an alternative basis for jurisdiction because it was not raised in the 

superior court. See Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 

1064, 1083 n.88 (Alaska 2009) (“Issues that are not raised in the superior court are 

waived and cannot be asserted on appeal as grounds for overturning a judgment.” 

(quoting Still v. Cunningham, 94 P.3d 1104, 1111 (Alaska 2004))). 

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