               IN THE SUPREME COURT OF IOWA
                             No. 16 / 06–1420

                             Filed May 30, 2008


CITY OF CORALVILLE, IOWA,

      Appellant,

vs.

MIDAMERICAN ENERGY COMPANY,

      Appellee,

IOWA DEPARTMENT OF JUSTICE,
OFFICE OF CONSUMER ADVOCATE,

      Intervenor-Appellee.



      Appeal from the Iowa District Court for Johnson County, Denver

D. Dillard, Judge.



      City of Coralville appeals from summary judgment entered in a

declaratory judgment action. AFFIRMED.



      Ivan T. Webber, Ahlers & Cooney, P.C., Des Moines, for appellant.



      Sheila K. Tipton, Richard W. Lozier, and Nathanael J. Blake of

Belin Lamson McCormick Zumbach Flynn, P.C., Des Moines, for

appellee.



      John R. Perkins and Ben A. Stead, Office of Consumer Advocate,

for intervenor-appellee.
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PER CURIAM.

         The City of Coralville appeals the district court’s grant of summary

judgment in favor of MidAmerican Energy Company in a declaratory

judgment action. We affirm.

         I.     Factual and Procedural Background.

         The City of Coralville notified MidAmerican in January 2000 that

the roadway at 1st Avenue in Coralville was to be widened, necessitating
relocation of MidAmerican’s overhead power lines. MidAmerican elected

to place its electric lines underground. A dispute arose as to whether the

City or MidAmerican would bear the costs of the undergrounding.                In

City of Coralville v. MidAmerican Energy Co., Johnson Co. No.

LACV61728 (Coralville I), the district court concluded the City had the

authority, incident to its police power, to order the utility to move wires

underground “at the utility’s expense.” MidAmerican did not appeal the

ruling.

         In 2005, Coralville undertook a street construction project in the

vicinity of Quarry Road and 7th Street. A Coralville ordinance authorized

the City to notify a utility to relocate at its expense power lines located in

the City’s right-of-way.        Relying on this ordinance, Coralville directed
MidAmerican to relocate its power lines underground in the area of the

project. MidAmerican requested reimbursement for the cost of the work,

but the City refused. MidAmerican went forward with the relocation of

its lines after informing the City that the utility company reserved the

right     to   recover   all   of   its   otherwise   unreimbursed   overhead-to-

underground conversion costs from its customers in the City of Coralville

in accordance with its state tariffs on file with the Iowa Utilities Board

(IUB).
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       The City commenced this action seeking a declaration that the

tariff was inapplicable and enjoining MidAmerican from assessing the

tariff against Coralville citizens.1        The City claimed MidAmerican was

precluded from litigating the issue of whether it could charge the City or

its citizens for the undergrounding because of the court’s holding in

Coralville I. It also requested the district court to declare the City’s right

to regulate its right-of-way would be violated if MidAmerican were

permitted     under     the    prevailing       tariff   to   charge   the    costs    of

undergrounding to its customers.

       MidAmerican denied the City’s issue preclusion claim, and

contended (1) the valid tariff allows it to charge its customers in the City

for the cost of undergrounding, and (2) the IUB had exclusive jurisdiction

to decide matters affecting the rates charged for electricity. The Office of

Consumer Advocate (OCA) intervened in support of MidAmerican’s

position.     MidAmerican and the City filed motions for summary

judgment.      The district court granted summary judgment in favor of

MidAmerican.

       II.    Scope of Review.

       We review a district court’s summary judgment ruling for

correction of errors at law. Iowa R. App. P. 6.4.




       1In   a separate, contemporaneous administrative proceeding, MidAmerican
requested the IUB to determine the utility company could, under the prevailing tariff,
include the cost of relocating power lines in the price charged to its customers for
electricity. That administrative proceeding and the related judicial review action are the
subject of our opinion filed today in City of Coralville v. Iowa Utilities Board, No. 07–
0558.
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       III.    Discussion.2
       A.      Issue Preclusion. The City raised identical issue preclusion

arguments before the district court in this case and in the administrative

proceeding before the IUB. We address those arguments in our opinion

filed today in City of Coralville v. Iowa Utilities Board, No. 07–0558. For

the reasons stated in that opinion, MidAmerican was not precluded by

Coralville I from recovering from its Coralville customers the costs of City-

mandated relocation of power lines.

       B.      Control of the Right of Way. The City also contends the

district court erred in rejecting its claim that the City’s right to control its

right-of-way trumps MidAmerican’s tariff-based right to charge its

customers for the costs of relocating power lines. Our opinion filed today

in City of Coralville v. Iowa Utilities Board, No. 07–0558, is dispositive of

this claim as well. For the reasons stated in that opinion, the tariff is a

valid exercise of the board’s power to regulate utility rates and does not

violate the City’s right to control its right-of-way.

       IV.     Conclusion.

       For the reasons stated in our opinion filed today in City of

Coralville v. Iowa Utilities Board, No. 07–0558, the district court correctly

concluded MidAmerican is not precluded by Coralville I from including

the cost of relocating power lines in the price charged to its customers for

electricity under a valid tariff, and Coralville’s right to control its right-of-

way is not violated by the enforcement of the tariff.                    Accordingly, we


       2In  addition to the arguments we discuss below, the City on appeal contends the
enforcement of the tariff permitting MidAmerican to “pass through” to its customers the
cost of relocating power lines would violate article I, section 6, and article III, section 30
of the Iowa Constitution. Although the City’s constitutional challenge to the tariff was
raised and decided before the IUB and district court in City of Coralville v. Iowa Utilities
Board, No. 07–0558, it was not raised or decided in this declaratory judgment action.
We therefore do not address the City’s constitutional claims in this opinion.
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affirm the district court’s grant of summary judgment in MidAmerican’s

favor.

         AFFIRMED.

         All justices concur except Baker, J., who takes no part.

         This is not a published opinion.
