11 I Il I IIllI I I
Control Number: 24229
11 I Ill Ill1I Ill 1I
Item Number: 289
Addendum StartPage: 0
SOAH DOCKET NO. 473-01-3557
PUC DOCKET NO. 24229
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REMAND OF DOCKET NO. 14454
AND PETITION OF LAMB COUNTY
ELECTRIC COOPERATIVE, INC. AND
BAILEY COUNTY ELECTRIC
COOPERATIVE, INC. FOR A CEASE
AND DESIST ORDER AGAINST
SOUTHWESTERN PUBLIC SERVICE
COMPANY
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PUBLIC UTILWY
COMMISSION
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OF TEXAS
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GOLDEN SPREAD'S AMICUS CURIAE REPLY BRIEF
Golden Spread Electric Cooperative, Inc (Golden Spread) files this its amicus
curiae reply brief in support of Lamb County Electric Cooperative, Inc. (Lamb County),
and in support thereof respectfully shows as follows:
INTEREST OF AMICUS CURIAE
Golden Spread Electric Cooperative, Inc., is an electric cooperative organized
under the Electric Cooperative Corporation Act. TEX. UTIL. CODEANN. $0 161.001161.254. Golden Spread purchases electricity from generators to provide to its 11
member electric distribution cooperatives,' which includes Lamb County Electric
Cooperative. The electric distribution cooperatives in turn provide electricity to their
members, who are the retail consumers.
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The cooperatives that are members of Golden Spread EC are: Bailey County Electric Cooperative, Big
Country Electric Cooperative, Deaf Smith Electric Cooperative, Greenbelt Electric Cooperative, Lamb
County Electric Cooperative, Lighthouse Electric Cooperative, North Plains Electric Cooperative, Rita
Blanca Electric Cooperative, South Plains Electric Cooperative, Swisher Electric Cooperative, and TriCounty Electric Cooperative. All of these cooperatives operate only in Texas, except for Tri-County
Electric Cooperative, which is headquartered in Hooker, Oklahoma and operates in Oklahoma.
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Golden Spread submits this amicus curiae reply brief in support of Lamb County.
The costs of this brief will be paid solely by Golden Spread. Golden Spread asks that the
Commission issue a cease and desist order against Southwestern Public Service Company
(“SPS”), implement a transition plan to transfer customers from SPS to Lamb County,
and require SPS to pay the transition costs incurred by Lamb County and customers.
I.
INTRODUCTION
Golden Spread will address two issues in this reply brief.* First, Golden Spread
will address the contention of Texaco that Lamb County bears the burden of disproving
every rationale supporting the Final Order in Docket No. 2991 .3 Second, Golden Spread
will discuss the doctrine of res judicata and its applicability to this case.
11.
PROCEDURAL HISTORY
Golden Spread generally adopts by reference the briefing on this topic by LCEC.
111.
BURDEN OF PROOF
Texaco erroneously claims that Lamb County must disprove each rationale in Docket No.
2991.
At page 5 of its Initial Post-Hearing Brief, Texaco contends that Lamb County
must “overturn the Commission’s mandated result in Docket 2991” and disprove every
rationale supporting that result. (emphasis in original). This contention blatantly ignores
That Golden Spread does not respond to every contention of those aligned with SPS and Staff should not
be construed as an indication of Golden Spread’s agreement with those contentions.
Petition of Lamb Countv Electric CooDerative. Inc. for a Cease and Desist Order APainst Southwestern
Public Service Companv Within Hocklev and Cochran Counties, Docket No. 2991.5 PUC Bull. 512 (Jan.
8. 1981).
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the certification provisions of PURA, and the decisions in the King Ranch4 and Citizens
Coop’ cases. PURA, as recognized in those cases, dictates that a utility may not serve a
consuming facility unless that utility has received a CCN for the geographic area in
which the consuming facility is located.6 Docket No. 2991’s “result,” that SPS could use
customer owned lines to serve in Lamb County’s service area, has already been
determined to be contrary to PURA. In fact, the Court in Citizens Coop held that the
Commission had no authority under PURA to permit such service. PURA was not
substantively changed between the dates of the Docket No. 2991 and Citizens Coop
decisions, therefore, the Commission had no authority to permit such service in Docket
No.2991.
Whatever the rationale or rationales supporting the decision in Docket No. 2991,
the result reached there was and is contrary to the plain language of PURA. The Court in
Citizens Coop expressly ruled that customer owned lines could not be used to allow a
utility to serve consuming facilities located in another utility’s service area and held that
the Commission had no’authority to sanction such activity. Given that the result of
Docket No. 2991 is contrary to law, it follows that there can be no rationale justifying
that result and any evidence regarding those rationales would be irrelevant as a matter of
law. There is no burden on Lamb County to disprove any rationale supporting the
continuation of the unlawful activity Texaco asks the Commission to sanction.
Complaint of Nueces Electric Coouerative. Inc., Against Central Power and Light Company, Docket No.
4572, July 2, 1984 Order and revised September 17, 1984 Order.
Citizens Coop Gin v. General Telephone Co., 728 S . W.2d 903 (Tex. App. - Austin 1987, no writ.)
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Under PURA 9 37.052(a)(3), facilities in existence on September 1, 1975 are “grandfathered.” In Docket
42, SPS waived its rights under this provision.
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The official certification maps in evidence in this proceeding establish that the oil
fields and consuming facilities complained of are within Lamb County’s certificated
service area. It is SPS that bears the burden of establishing that, despite the boundaries
shown on the official certification maps, those boundaries do not apply to it and that SPS
is somehow certified to serve consuming facilities located in Lamb County’s service area.
See . US. v. An Article of Drug, 469 F. 2d 875, 878 (5th Cir. 1972); US. v. Allan Drug
Corp., 357 F. 2d 713, 718 (IOth Cir. 1966); Rheem Mfg. Co. v. Rheem, 295 F.2d 473,475
(9* Cir. 1961); Honeywell Inc. v. US.,661 F.2d 182, 186 (Ct.Cl. 1981).
IV.
ORIGINAL CERTIFICATION
Golden Spread generally adopts by reference the briefing on this topic by LCEC.
V.
PACT OF SUBSEQUENT PROCEEDINGS/CHANGES IN CIRCUMSTANCES
SINCE DOCKET 2991
Res judicata does not bar Lamb County’s claims in this proceedinp.
The Staff, SPS and others insist that a decision in this case can rest on res
judicata. For several reasons, however, the doctrine of res judicata cannot form the basis
of a decision in this proceeding.
First, the decision in Docket No. 2991 was a policy decision addressing whether
customer owned lines could be used to circumvent established certification boundaries.
In Docket No. 2991, the PUC did not determine or change the location of any
certification boundaries. Relying on a policy that customer preferences could justify
extra-territorial service, the PUC merely ruled that SPS could serve some consuming
facilities located in Lamb County’s service area. No boundaries were changed by the
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final order in Docket No. 2991. Therefore, to the extent any party claims that Docket No.
299 1 is res judicata as to certification boundaries they are wrong.
Second, this proceeding involves different parties and different claims than those
involved in the 1981 proceeding.
Claim preclusion, or res judicata, prevents the
relitigation of claims or causes of action that have been finally adjudicated; it also
prevents the litigation of related matters that, with due diligence, should have been
litigated in a prior suit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.
1992). Issue preclusion, or collateral estoppel, prevents the relitigation of issues already
resolved in a prior lawsuit. Id.
Lamb County’s complaints in the 1981 proceeding pertained only to lines owned
by two of SPS’s customers, Texaco and Amoco. In contrast, the present proceeding
concerns lines owned by numerous other customers of SPS.
Not only are there many more parties in this proceeding than in the 1981
proceeding, but the claims brought in this case are significantly broader as well. Lamb
County has alleged in this case that SPS engaged in the following activities:
providing extensive new service to consuming
facilities in Lamb County’s certificated territory by
extending and improving facilities from original
lines that were grandfathered to SPS in the 1976
Order;
providing energy service to new consuming
facilities wholly located in Lamb County’s singly
certificated areas by using new and extended
customer-owned facilities across the CCN
boundary;
constructing new distribution facilities across
certificated boundaries in order to serve agricultural
consuming facilities wholly located within Lamb
County’s singly certificated area;
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(4)
interfering with Lamb County’s operations by
providing retail electric service to disconnected
consuming facilities wholly located in Lamb
County’s singly certificated territory; and
(5)
using SPS energy to serve consuming facilities
wholly located in Lamb County’s singly certificated
area by the use of meters and submeters.
The issues in this case are not identical to those in the 1981 proceeding, and thus the 1981
Order cannot bar the present proceeding. Johnson & Higgins of Texas, Inc. v. Kenneco
Energy, Inc., 962 S.W.2d 507,521 (Tex. 1998).
Third, Lamb County’s complaints involve extensions of service by SPS that
occurred after 1984. Necessarily, the 1981 Order could not have adjudicated complaints
that occurred after its issuance.
A prior judgment “is res adjudicata only of [then-]present and not of future
conditions.” Cowling v. Colligan, 158 Tex. 458, 312 S.W.2d 943, 947 (1958). See
Franklin v. Rainey, 556 S.W.2d 583, 585 (Tex. Civ. App.-Dallas
1976, no writ) (second
suit alleging water diversion not barred by judgment in first suit, rendered 20 years
earlier, because “there is a lack of subject matter identity” due to “facts occurring in the
intervening years which may alter the rights of the parties.”). “[Res judicata] extends
only to facts in issue as they existed at the time the judgment was rendered, and does not
prevent a re-examination of the same question between the same parties, where, in the
interval, the facts have changed, or new facts have occurred which may alter the legal
rights or relations of the parties.” City of Lubbock v. Stubbs, 160 Tex. 111, 327 S.W.2d
411,414 (1950).
Fourth, the King Ranch case and the Citizens Coop case effectively overruled the
policy behind and the result reached in the Docket No. 2991 Order. Citizens Coop
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determined that the PUC has no authority to sanction extra-territorial service. The policy
followed by the PUC in authorizing such service, deference to customer preference, was
abandoned in King Ranch and wholly discredited by Citizens Coop. This departure from
the Docket No. 2991 decision constitutes a change in facts and in law for res judicata and
collateral estoppel analysis.
The Texas Supreme Court noted in Marino v. State Farm & Cas. Ins. Co., 787
S.W.2d 948, 950 (Tex. 1990), that “the well-accepted rule that res judicata is not a
defense in a subsequent action if there has been a change in the material facts, the
applicable statutory law, or the decisional law between the first judgment and the second
suit,” (Emphasis in original). See also Restatement (Second) of Judgments
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27,
comment c; Farm Mut. Auto. Ins. Co. v. Duel, 324 U S . 154, 65 S.Ct. 573, 577 (1945)
(“Res judicata is no defense where between the time of the first judgment and the second
there has been an intervening decision or a change in the law creating an altered
situation”); Commissioner oflnternal Revenue v. Sunnen, 33 U.S. 591, 599,68 S.Ct. 715,
720 (1948) (“[Collateral estoppel] is designed to prevent repetitious lawsuits over matters
which have once been decided and which have remained substantially static, factually
and legally. It is not meant to create vested rights in decisions that have become obsolete
or erroneous with time. . . .”) (emphasis added).
Res judicata and collateral estoppel are affirmative defenses that must be pleaded
and proved by the party raising them. Tex. R. Civ. P. 94; Feinman v. State, 717 S.W.2d
106, 108 (Tex. Civ. App.-Houston
[lst Dist.] 1986, writ refd n.r.e.). The burden of
proof extends to all elements of the defense, including identity of the issues. Hernandez
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v. City of Los Angeles, 624 F.2d 935, 937 (9th Cir. 1980) (“The burden of pleading and
proving the identity of issues rests on the party asserting the estoppel”).
SPS failed to meets its burden of proof. It did not, and cannot, prove that there is
an identity of parties and claims. Additionally, both the facts and the law have changed
since the 1981 decision. The record conclusively negates any argument that res judicata
or collateral estoppel operate as a bar to this proceeding.
VI.
REQUESTED RELIEF INCLUDING TRANSITION ISSUES
Golden Spread generally adopts by reference the briefing on this topic by LCEC.
VII.
CONCLUSION
SPS, Staff, Texaco and other intervenors base much of their argument on the
decision in Docket No. 2991. Texaco goes so far as to contend Lamb County cannot
prevail unless it negates every rationale supporting the long discredited decision in
Docket No. 2991. That contention is erroneous. As pointed out in the Citizens Coop
case, the PUC has no authority to again sanction the use of customer owned lines to
provide extra-territorial service. In King Ranch, the PUC distanced itself from the very
rationales Texaco contends Lamb County must refute. Because the result is unauthorized
by statute, any rationale supporting that result is irrelevant. Likewise, Docket No. 2991
does not bar Lamb County’s claims in this proceeding. The parties and facts have
changed. Additional claims are made. Most importantly, the neither the result reached or
policy applied in Docket No. 2991 is contemplated by the law the PUC is charged with
enforcing.
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WHEREFORE,
PREMISES
CONSIDERED,
Golden
Spread
Electric
Cooperative, Inc., respectfully requests that the Commission grant Lamb County Electric
Cooperative’s request for a cease and desist order, and for such other and further relief to
which Lamb County shows itself entitled.
Respectfully submitted,
McGINNIS, LOCHRIDGE & KILGORE, L.L.P.
Campbell McGinnis
Shawn P. St. Clair
1300 Capitol Center
9 19 Congress Avenue
Austin, Texas 78701
(5 12) 495-6000
(512) 495-6093 FAX
By:
CampbelrMcGinnis
State Bar No. 13630500
ATTORNEYS FOR GOLDEN SPREAD
ELECTRIC COOPERATIVE, INC.
CERTIFICATE OF SERVICE
I hereby certify that a true and complete copy of the above and foregoing b i f has
been sent by U.S. mail, telecopy, electronic mail or hand delivery on this the
day of December, 2002, to all parties of record.
&
C d b e l l McGinnis
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