IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 37294

ADA COUNTY HIGHWAY DISTRICT,

 Petitioner-Appellant,

v.

IDAHO PUBLIC UTILITIES

COMMISSION and IDAHO POWER

COMPANY,

 Respondents.

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Boise, May 2011 Term

2011 Opinion No. 56

Filed: May 25, 2011

Stephen W. Kenyon, Clerk

Appeal from the Idaho Public Utilities Commission.

The order of the Commission is set aside.

Merlyn W. Clark, Hawley Troxell Ennis & Hawley LLP, Boise, argued for 

appellant.

Weldon B. Stutzman, Deputy Attorney General, Boise, argued for respondent

Idaho Public Utilities Commission.

Lisa D. Nordstrom, Boise, argued for respondent Idaho Power Company.

EISMANN, Chief Justice.

This is an appeal from an order of the Public Utilities Commission revising Idaho Power 

Company’s tariff with respect to relocating utilities within public rights-of-way. We set aside

the order of the Commission.

I. FACTS AND PROCEDURAL HISTORY

On October 30, 2008, Idaho Power Company (Company) filed an application with the 

Idaho Public Utilities Commission (IPUC) seeking to modify Rule H, its tariff. Some of the 

proposed amendments applied to the relocation of utilities’ facilities within public rights-of-way. 

The City of Nampa and the Association of Canyon County Highway Districts (Intervenors) were 

granted permission to intervene in the proceedings, and they each filed written comments 

objecting to Section 10 of the proposed amendments. Even though it was not an intervenor in 
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the proceedings, the Ada County Highway District (ACHD) also filed written comments 

objecting to proposed Section 10.

On July 1, 2009, IPUC issued an order approving proposed Section 10. On July 22, 

2009, ACHD filed a petition for reconsideration and clarification. It argued that by adopting 

Section 10, IPUC exceeded its authority; that Section 10 was unconstitutional; that Section 10 

was an unlawful attempt to amend or abrogate the common law rule requiring a utility to relocate 

its facilities placed in a public right-of-way at its expense; and that the definition of “third party 

beneficiary” in Section 10 was too broad. On the following day, Intervenors also filed petitions 

for reconsideration. They contended that Section 10 exceeded IPUC’s jurisdiction and that the 

definitions of “third party beneficiaries” and “local improvement districts” used in Section 10 

needed to be clarified.

On August 19, 2009, IPUC issued an order granting the motions for reconsideration. It 

ordered Company to update the language of Section 10, including clarifying the definitions of 

“third party beneficiaries” and “local improvement districts.” It further provided that once 

Company had done so, the parties could file additional briefs if necessary. Company filed the 

modifications on August 28, 2009, which included modified definitions of some of the terms 

used.

On September 11, 2009, Intervenors filed a joint brief in support of their petitions for

rehearing. In that brief, they argued that Section 10 exceeded the jurisdiction of IPUC, was 

unconstitutional, and was contrary to the common law. They also argued that the revised 

definition of “third party beneficiaries” was still too broad.

On the same day, ACHD filed its brief. It argued that as modified, Section 10 and the 

revised definitions encroached upon ACHD’s exclusive jurisdiction over its highways and rightsof-way; exceeded IPUC’s jurisdiction; are unconstitutional; attempted to amend or abrogate the 

common law rule that utilities must move their facilities from public rights-of-way at their own 

expense; and contained an overly broad definition of “third party beneficiary.”

IPUC held oral argument on the motions for reconsideration for October 13, 2009, and on 

November 30, 2009, it issued its final order (Order No. 30955). It granted the motions for 

reconsideration in part and denied them in part and added Sections 1 and 10, as revised, and 

Section 11 to the tariff (Rule H). ACHD then appealed.
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II. ISSUES ON APPEAL

A. Should this appeal be dismissed for lack of a case or controversy between IPUC and ACHD?

B. Does Section 10 usurp ACHD’s exclusive jurisdiction over public rights-of-way?

C. Does Section 10 exceed the authority of IPUC?

D. Does Section 11 exceed the authority of IPUC?

III. ANALYSIS

Appeals from IPUC are heard on the commission record as certified by it. I.C. § 61-629. 

Review on appeal is limited to “whether the commission has regularly pursued its authority, 

including a determination of whether the order appealed from violates any right of the appellant 

under the constitution of the United States or of the state of Idaho.” Id. This Court can either 

affirm the order of the Commission or set it aside in whole or in part. Id.

A. Should This Appeal Be Dismissed for Lack of a Case or Controversy Between IPUC 

and ACHD?

IPUC contends that this appeal should be dismissed because no justiciable controversy 

exists between it and ACHD. It reasons, “Because Section 10 and Resolution 330 are 

substantially similar, Section 10 by its terms is not in effect for ACHD’s projects.” That 

argument is based upon the provision in Section 10 stating that it does not apply to relocations 

where the public road agency has adopted legally binding guidelines with provisions that are 

substantially similar to Section 10 for allocating utility relocation costs between the Company 

and other parties. Thus, as long as ACHD keeps its Resolution 330, that resolution will control 

the allocation of the cost of relocating the Company’s utilities to third parties. IPUC also

addresses various arguments made by ACHD, pointing out why they are without merit.

A justiciable controversy must be “ ‘a real and substantial controversy admitting of 

specific relief through a decree of a conclusive character, as distinguished from an opinion 

advising what the law would be upon a hypothetical state of facts.’ ” Harris v. Cassia County, 

106 Idaho 513, 516, 681 P.2d 988, 991 (1984) (quoting from Aetna Life Insurance Co. of 

Hartford, Connecticut v. Haworth, 300 U.S. 227, 241 (1937)). This case presents a real and 

substantial controversy regarding the legality of the amended tariff. Specifically, ACHD 

contends that it infringes upon its exclusive jurisdiction to determine whether a third party is 
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required to reimburse a utility for all or a portion of its cost of relocating the utility’s distribution 

facilities that are in a public right-of-way and exceeds the authority granted to IPUC by the 

legislature. IPUC believed that there was enough of a controversy regarding those issues that it 

adopted the amendments to Idaho Power’s tariff. The resolution of those issues would not be an 

advisory opinion based upon a hypothetical state of facts. It will be based upon the law and the 

provisions of the tariff. Therefore, we will not dismiss the appeal.

B. Does Section 10 Usurp ACHD’s Exclusive Jurisdiction Over Public Rights-of-Way?

ACHD contends that Section 10 usurps ACHD’s exclusive jurisdiction over public 

rights-of-way. ACHD’s commissioners have “exclusive general supervision and jurisdiction 

over all highways and public rights-of-way within their highway system.” I.C. § 40-1310(1). 

With the permission of the commissioners, Company has the right to construct its electricity 

transmission facilities within ACHD’s public rights-of-way “in such manner and at such places 

as not to incommode the public use of the road, highway, [or] street.” I.C. § 62-705. However,

Company’s right to use the public rights-of-way is permissive only. State ex rel. Rich v. Idaho 

Power Co., 81 Idaho 487, 498, 346 P.2d 596, 601 (1959). “[T]he right of utilities to the use of 

public thoroughfares is not and cannot be regarded as a permanent property right.” Id. If ACHD 

determines that Company’s facilities incommode the public use of any road, highway, or street, 

ACHD can require Company to relocate the facilities. Id.

ACHD contends that by adopting Section 10 IPUC has sought to usurp ACHD’s 

exclusive jurisdiction. Section 10 provides:

The Company often locates its distribution facilities within state and local 

public road rights-of-way under authority of Idaho Code § 62-705 (for locations 

outside Idaho city limits) and the Company’s city franchise agreements (for 

locations within Idaho city limits). At the request of a Public Road Agency, the 

Company will relocate its distribution facilities from or within the public road 

rights-of-way. The Relocation may be for the benefit of the general public, or in 

some cases, be a benefit to one or more Private Beneficiaries. Nothing in this 

Section bars a Local Improvement District (LID) from voluntarily paying the 

Company for Relocations.

The Company’s cost of Relocations from or within the public road rightsof-way shall be allocated as follows:

a. Road Improvements Funded by the Public Road Agency - When the 

Relocation of distribution facilities is requested by the Public Road 
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Agency to make roadway improvements or other public improvements, 

the Company will bear the cost of the Relocation.

b. Road Improvements Partially Funded by the Public Road Agency - When 

the Public Road Agency requires the Relocation of distribution facilities 

for the benefit of itself (or an LID) and a Private Beneficiary, the 

Company will bear the Relocation costs equal to the percentage of the 

Relocation costs allocated to the Public Road Agency or LID. The Private 

Beneficiary will pay the Company for the Relocation costs equal to the 

percentage of the road improvement costs allocated to the Private 

Beneficiary.

c. Road Improvements not Funded by the Public Road Agency - When the 

Relocation of distribution facilities in the public road rights-of-way is 

solely for a Private Beneficiary, the Private Beneficiary will pay the 

Company for the cost of the Relocation.

d. Prior Right of Occupancy - When the Company and the Public Road 

Agency have entered into an agreement regarding a Private Right of 

Occupancy, the costs of Relocation in such designated area will be borne 

by the Public Road Agency, or as directed in the agreement.

All payments from Private Beneficiaries to the Company under this Section 

shall be based on the Company’s Work Order Cost.

This Section shall not apply to Relocations within public road rights-of-way 

of Public Road Agencies which have adopted legally binding guidelines for the 

allocation of utility relocation costs between the Company and other parties that 

are substantially similar to the rules set out in Section 10 of Rule H.

First, ACHD states, “Through the adoption of Section 10 of Rule H, the IPUC will 

effectively dictate the policies and procedures of Public Road Agencies regarding electric utility 

relocations.” It does not point to any provision in Section 10 by which IPUC attempts to do so.

Next, it asserts that Section 10 will “impact the operation of Public Road Agencies in 

their negotiations and relations with third parties and developers concerning road improvement 

projects.” The contention is that one of the bargaining chips ACHD has in negotiating with 

developers is the authority to rule upon whether the developer will have to reimburse Company 

for any of the cost of relocating its electrical distribution facilities. ACHD can get a developer to 

pay more money to it if the developer does not have to reimburse Company. That ACHD finds

that authority useful does not mean it is a power granted to it by the legislature.
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Next, it claims that Section 10 will “regulate and control electric utility relocations by 

assigning financial liability for such relocations.” Section 10 seeks to require a “Private 

Beneficiary” to pay all or a portion of the costs of relocating Company’s distribution facilities in 

a public right-of-way if such relocation was for the Private Beneficiary’s benefit. A Private 

Beneficiary would not include ACHD or other entity exercising the police power delegated to it 

by the State.1

 ACHD does not explain how requiring a third party to reimburse Company for 

relocation costs enables IPUC to “regulate and control electric utility relocations.” ACHD only 

argues that it has exclusive authority “to assign financial responsibility for utility relocation 

costs.” It argues as follows:

[I]t [Section 10] regulates who pays for utility relocations, including detailed 

regulations as to whether a private developer is required to reimburse public 

utilities for their utility relocation costs. Specifically, Resolution 330 [adopted by 

the ACHD] requires a private developer to reimburse utilities for the cost of 

utility relocations that result from public road projects made for the benefit of that 

private developer. However, Resolution 330 provides that the private developer 

is not required to reimburse a utility, even if the private developer pays for the 

public road project, if ACHD had already scheduled the public road project to be 

made within three years after the project was commenced. [Citations to record 

omitted.]

In support of this asserted exclusive authority to determine whether a private party must 

reimburse Company, ACHD quotes subsections (1) and (8) of Idaho Code § 40-1310, which 

state as follows:

(1) The commissioners of a highway district have exclusive general supervision and 

jurisdiction over all highways and public rights-of-way within their highway system, with 

full power to construct, maintain, repair, acquire, purchase and improve all highways 

within their highway system, whether directly or by their own agents and employees or by 

contract. Except as otherwise provided in this chapter in respect to the highways within 

their highway system, a highway district shall have all of the powers and duties that would 

by law be vested in the commissioners of the county and in the district directors of 

highways if the highway district had not been organized. . . . .

. . . . 

 

1 Section 1 of the tariff provides:

Private Beneficiary is any individual, firm or entity that provides funding for road 

improvements performed by a Public Road Agency or compensates the Company for the 

Relocation of distribution facilities as set forth in Section 10. A Private Beneficiary may include, 

but is not limited to, real estate developers, adjacent landowners, or existing customers of the 

Company. [Underlining in original.]
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(8) The highway district board of commissioners shall have the exclusive 

general supervisory authority over all public highways, public streets and public 

rights-of-way under their jurisdiction, with full power to establish design 

standards, establish use standards, pass resolutions and establish regulations in 

accordance with the provisions of title 49, Idaho Code, and control access to said 

public highways, public streets and public rights-of-way. [Emphases added by 

the ACHD.]

None of powers granted to ACHD in the above-quoted statutes provide that ACHD can 

determine whether a third party is required to reimburse a utility for all or a portion of its cost of 

relocating the utility’s distribution facilities that are in a public right-of-way. ACHD contends 

that such power is an implied power, based upon Idaho Code § 40-1312, which provides:

The grant of powers provided in this chapter to highway districts and to 

their officers and agents, shall be liberally construed, as a broad and general grant 

of powers, to the end that the control and administration of the districts may be 

efficient. The enumeration of certain powers that would be implied without 

enumeration shall not be construed as a denial or exclusion of other implied 

powers necessary for the free and efficient exercise of powers expressly granted. 

[Emphases added by the ACHD.]

Section 10 provides that when Company is required to relocate its distribution facilities 

within a public right-of-way for the benefit of a Private Beneficiary, such entity may be required 

to pay some or all of the costs incurred by Company in doing so.2 When ACHD determines that 

a utility must remove or relocate its facilities that are within a public right-of-way, ACHD is not 

required to bear any of the utility’s cost of doing so. Mountain States Tel. & Telegraph Co. v. 

Boise Redevelopment Agency, 101 Idaho 30, 33, 607 P.2d 1084, 1087 (1980). The utility must 

proceed with the relocation. Because ACHD does not bear any of that cost, there is no need for 

it to have the authority to determine whether some third party should reimburse the utility for all 

or a portion of the cost. Whether some third party reimburses the Company after the relocation 

has been completed is not an issue of concern to ACHD. The utility is required to complete the 

relocation regardless of whether it is reimbursed by a third party. Determining whether there 

 

2 IPUC had initially approved a version of Section 10 that would have required the Private Beneficiary to prepay its 

portion of the costs. IPUC deleted that requirement based upon the objection that it may hinder the timely 

completion of improvements and relocations within the public rights-of-way. Requiring prepayment could certainly 

infringe upon ACHD’s express powers because it could delay road improvement projects. However, ACHD has not 

shown that it must have the implied power to determine whether a Private Beneficiary must reimburse Company for 

relocating its distribution facilities.
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will be reimbursement from a third party is simply not necessary in order for ACHD to freely 

and efficiently exercise powers expressly granted to it. Such reimbursement does not involve 

any sums that ACHD will incur while supervising, constructing, maintaining, repairing, 

acquiring, purchasing, and improving its highways or exercising any of its other powers.

ACHD’s exclusive jurisdiction over its highways and rights-of-way does not extend to 

matters that do not involve its legitimate interests. For example, in Village of Lapwai v. Alligier, 

78 Idaho 124, 299 P.2d 475 (1956), the city enacted an ordinance terminating a waterworks 

franchise and ordering the franchisees to remove their pipes and apparatus from the city streets. 

When the franchisees failed to do so, the city sued to force the removal. It was stipulated that the 

pipes and apparatus were buried under the streets and did not interfere with public travel or use 

of the surface of the streets. The trial court ordered the franchisees to remove their pipes and 

apparatus, but on appeal we modified that order. We ruled that because the buried pipes and 

apparatus did not interfere with the usual use of the surface of the streets, the order should be 

modified to permit the franchisees to remove them or not at their option. Id. at 130, 299 P.2d at 

479.

Finally ACHD relies upon that portion of Idaho Code § 40-1312 which provides that the 

grant of powers to highway districts “shall be liberally construed, as a broad and general grant of 

powers, to the end that the control and administration of the districts may be efficient.” It 

argues: “Through Resolution 330, ACHD is able to efficiently regulate the relocation of all 

utility and sewer companies within the rights-of-way through one single set of regulations. That 

efficiency is lost if IPUC regulates electric utility relocations on public rights-of-way through 

Section 10 of Rule H.” As an example of the alleged inefficiency that Section 10 will cause, it 

points to scheduling disputes that may arise as to which entity will relocate its facilities first. It 

argues:

If Resolution 330 governs as to all utility and sewer companies, ACHD can 

efficiently resolve the dispute. However, if Rule H governs as to Idaho Power, 

then ACHD can only resolve the disputes involving the other utilities and IPUC 

has jurisdiction over disputes involving Idaho Power, which may result in 

scheduling conflicts.

Missing from ACHD’s argument is any reference to a provision in Section 10 that 

purports to prevent ACHD from resolving such disputes involving Company, or that purports to 

have IPUC resolve those disputes, or that purports to regulate electric utility relocations on 
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public rights-of-way. ACHD has not pointed to any provision in Section 10 that infringes upon 

ACHD’s power or jurisdiction.

C. Does Section 10 Exceed IPUC’s Authority?

ACHD also contends that IPUC exceeded its authority and jurisdiction by adopting 

Section 10. “The Idaho Public Utilities Commission has no authority other than that given to it 

by the legislature. It exercises a limited jurisdiction and nothing is presumed in favor of its 

jurisdiction.” Alpert v. Boise Water Corp., 118 Idaho 136, 140, 795 P.2d 298, 302 (1990). The 

legislature has vested IPUC with “power and authority to supervise and regulate every public 

utility in the state and to do all things necessary to carry out the spirit and intent of [the Public 

Utilities Law].” I.C. § 61-501. “The public utilities law (Chapters 1-7 of Title 61, Idaho Code) 

establishes a comprehensive scheme for the regulation of investor-owned public utilities by the 

Idaho Public Utilities Commission.” Alpert, 118 Idaho at 140, 795 P.2d at 302.

In Washington Water Power Co. v. Kootenai Environmental Alliance, 99 Idaho 875, 881, 

591 P.2d 122, 128 (1979), we stated “that the legislature intended to limit the Commission’s 

authority under I.C. § 61-502 and § 61-503 to those practices which affect the rates, fares, tolls, 

rentals, charges or classifications of the public utility.” Idaho Code § 61-507 provides that IPUC 

“shall prescribe rules and regulations for the performance of any service or the furnishings of any 

commodity of the character furnished or supplied by any public utility.”

In its final order, IPUC held that it had the authority to adopt Section 10 based upon 

Idaho Code §§ 61-502, 61-503, and 61-507. It held that relocating distribution facilities for the 

benefit of a private party is a “service” under those statutes. It stated:

First, the Commission affirms that highway agencies have the authority to 

determine when Idaho Power must relocate its distribution facilities and whether 

any other party is responsible for paying for the road improvement costs. 

However, once the highway agency determines that a private party (e.g., a 

developer) must shoulder all or a portion of the road improvement costs, then it is 

the Commission that establishes the costs for utility relocation pursuant to Idaho 

Code §§ 61-502, 503, and 507. This is the purpose of Section 10. The

Commission’s ability to set relocation costs arises only after the highway agency 

determines that it or another party is responsible for road improvement costs. . . . 

. [Emphasis in original.]

. . . .

Third, we reject ACHD’s argument that the relocation of Idaho Power’s 

facilities from the public right-of-way is not a “service or product” provided by 
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the utility. . . . The relocation of Company facilities is a “practice” or “service”

subject to our jurisdiction. Idaho Code §§ 61-502 and 61-503 authorize the 

Commission to establish the just and reasonable rate or charge “for any service or 

products or . . . the rules, regulations, practices, or contract . . . affecting such 

rates.” In addition, Idaho Code § 61-507 provides that the Commission “shall 

prescribe rules and regulations for the performance of any service.” [Emphasis in 

original.]

Relying upon Idaho Code § 61-332A, ACHD contends that the relocation of distribution 

facilities does not meet the statutory definition of “service.” It argues: “[T]he relocation of a 

utility line is not within the scope of Idaho Code §§ 61-502 and 61-503 because it is not a 

‘service.’ Idaho Code § 61-332A defines ‘Electric service’ as ‘electricity furnished to an 

ultimate consumer by an electric supplier.’ ”

The fallacy of this argument is that the definitions in section 61-332A do not apply to 

Idaho Code §§ 61-502, 61-503, and 61-507. Section 61-332A expressly states that its definitions 

apply to “this act,” I.C. § 61-332A, which is the Electric Supplier Stabilization Act. Idaho Code 

§ 61-332 states, “This act includes sections 61-332 through 61-334C, Idaho Code, and shall be 

referred to herein as ‘this act’ and may be cited and referred to as the ‘Electric Supplier 

Stabilization Act.’ ” I.C. § 61-332. Because sections 61-502, 61-503, and 61-507 are not part of 

that Act, the definition in section 61-332A does not apply to them.

Idaho Code § 61-501 states that IPUC “is hereby vested with power and jurisdiction . . . 

to do all things necessary to carry out the spirit and intent of the provisions of [the Public 

Utilities Law],” which includes sections 61-502, 61-503 and 61-507. IPUC’s construction of the 

word “service” in this context is reasonable. Idaho Code § 61-507 states, “The commission shall 

prescribe rules and regulations for the performance of any service or the furnishing of any 

commodity of the character furnished or supplied by any public utility . . . .” (Emphasis added.) 

The performance of any service indicates action by the public utility, which reasonably includes 

removing and reinstalling distribution facilities. However, holding that the relocation of 

distribution facilities can be the performance of a service under section 61-507 does not mean 

that Section 10 is a valid exercise of IPUC’s power.

IPUC certainly has the authority to determine the costs that Company can charge a

private person who requests services from Company. However, Section 10 goes further than 
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that. Under Section 10, when a Public Road Agency3 requires that Idaho Power relocate its 

distribution facilities, IPUC has the authority to determine whether the relocation, in whole or in 

part, is for the benefit of a third party. If it determines that it is, then Section 10 would allocate 

all or a portion of the costs of relocation to that third party. Thus, IPUC could require a third 

party to pay for services that the third party did not request from Company if IPUC determined 

that a relocation required by a Public Road Agency benefited the third party. IPUC has not 

pointed to any statute granting it that authority.

During oral argument, IPUC admitted that it could not adjudicate the dispute between the 

third party and Company. It also admitted that if Company wanted to recover relocation costs 

from a third party, it would have to sue in court and Section 10 would not apply. 4 In addition, 

IPUC admitted that the percentage of road improvement costs that the third party agreed to pay 

the road agency may bear no relationship to the percentage of the relocation costs that allegedly 

benefit the third party.

We hold that the provisions of Section 10 discussed above exceed the authority of IPUC. 

Therefore, we set aside Section 10. I.C. § 61-629.

D. Does Section 11 Exceed IPUC’s Authority?

ACHD also argues that Section 11 of the amended tariff infringes upon its exclusive 

jurisdiction over public rights-of-way and is an unauthorized attempt to exercise jurisdiction over 

public road agencies. Section 11 states:

11. Eliminating or Minimizing Relocation Costs in Public Road 

Rights-of-Way

Pursuant to Idaho Code § 40-210, the Company will participate in project 

design or development meetings upon receiving written notice from the Public 

Road Agency that a public road project may require the relocation of distribution 

facilities. The Company and other parties in the planning process will use their 

best efforts to find ways to eliminate the cost of relocating utility facilities, or if 

elimination is not feasible, to minimize the relocation costs to the maximum 

 

3 A “Public Road Agency” is defined in Section 1 of the tariff as “any state or local agency which constructs, 

operates, maintains or administers public road rights-of-way in Idaho, including where appropriate the Idaho 

Transportation Department, any city or county street department, or a highway district.” 4 None of the parties posited a legal theory upon which Company could recover from the third party, and we express 

no opinion on that issue.
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extent reasonably possible. This provision shall not limit the authority of the 

Public Road Agency over the public road right-of-way.

The second sentence in Section 11 states, “The Company and other parties in the planning 

process will use their best efforts to find ways to eliminate the cost of relocating utility facilities, 

or if elimination is not feasible, to minimize the relocation costs to the maximum extent 

reasonably possible.” (Emphasis added.) During oral argument, IPUC admitted that it has no 

authority to order “other parties” to use their best efforts to minimize relocation costs. Those 

other parties would include ACHD and entities which are not utilities regulated by IPUC. It 

stated that the language is based upon Idaho Code § 40-210(2). Although the legislature has the 

authority to order public highway agencies to use their best efforts to minimize the cost of 

relocating utility facilities, IPUC does not have that authority. We therefore set aside Section 11.

I.C. § 61-629.

IV. CONCLUSION

We set aside Sections 10 and 11 of the amendments to Rule H approved in IPUC Order 

No. 30955. We award costs on appeal to appellant.

Justices BURDICK, J. JONES, HORTON and J. Pro Tem TROUT CONCUR.