                                     No. 84-290
                 IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         1984



MONTANA POWER COMPANY,
a Montana corporation,

                         Plaintiff and Petitioner,


THE PUBLIC SERVICE COMMISSION OF
THE STATE OF MONTANA and its members
THOMAS J. SCHNEIDER, JOHN B. DRISCOLL,
HOWARD L. ELLIS, CLYDE JARVIS and
DANNY OBERG,

                         Defendants and Respondents.


ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
         For Petitioner:
          Daniel 0 Flanagan, John J. Burke, John L. Peterson,
                  .
          Dennis L. Lopach, Pamela K. Plerrell, Butte, Montana
          (Helena, Montana)
         For Res~ondents:
           Eileen E. Shore, Public Service Commission, Helena,
           Montana
         For Intervenors:
           James C. Payne & John C. Allen, Montana Consumer Counsel,
           Helena, Montana
           Kurt Krueger, Butte, Montana and Robert Rowe, Missoula,
           Montana for Butte Coinmunity Union, Montana Legal Services,
           Montana Association for Senior Citizens
           Patrick L. Smith, Northern Plains Resources Council,
           Billings, Montana
           Daniel & Jeanne Kemmis, Human Resources Council, Missoula,
           Montana
           John Doubek & Richard Pyfer, Montana Irrigators, Helena,
           Montana
           Donald W. Quander, ASARCO, Billings, Montana
           C. William Leaphart, Champion International & CONOCO,
           Helena, Montana
           Capt. Edwin T. Peterson, Judge Advocate, U.S. Air Force,
           Great Falls, Montana
           Robert L. Deschamps, Missoula County, Missoula, Montana
           James Robischon, Atlantic Richfield & Stauffer Chemical Co.,
           Butte, Montana
           Charles W. Kuether, Great Falls Gas Co., Great Falls
           Grant E. Tanner, D.S.I., Portland, Oregon


                                     Submitted:   August 10, 19134
                                      Decided:    ~ u g u s t22, 1984
         iaub /ti ,!   1984
Filed:


                                    Clerk
     Mr. Justice Frank B. Morrison, Jr. delivered the Opinion
of the Court.
      On July 3, 1984, the Montana Power Company filed an
application with this Court requesting that the Court assume
original     jurisdiction      of     a   petition     and   complaint       for
declaratory     judgment     and/or        writ   of   mandate      or     other
appropriate    relief.         We     have    determined     that    original
jurisdiction will be assumed by                this Court.       A briefing
schedule is herein established.
      All parties agree that Rule 17, M.R.App.Civ.P.                     governs
this Court's exercise of original jurisdiction.                      Rule 17
provides:    "The institution of such original proceedings in
the supreme court is sometimes justified by circumstances of
an emergency nature, as when a cause of action or a right has
arisen under conditions making due consideration in the trial
courts and due appeal to this court [Montana Supreme Court]
an inadequate remedy,      ..   .'I



      The substantive issue being litigated is whether a coal
fired generator known as Colstrip # 3 should be included in
the rate base so that the reasonable cost of Unit 3 is born
by the ratepayers.       Unit 3 has been providing electricity for
the   past   8 months.         The Montana        Power Company          is not
recouping a return on its investment in Colstrip 3 or its
operation     and   maintenance       expenses     associated       with     the
generation of that electricity.              If the company's position on
the   issue presented       to this Court is correct, then the
revenues it would be earning could be permanently lost as no
remedy has yet been recognized for the restoration of such
revenues.
      There can be no dispute that the issue being litigated
is of statewide importance.               The significance of the issue
was   emphasized    by   the    Public       Service Commission in           its
"Motion for Extension of Time for Filing Return, Brief and
Presenting Oral Argument" filed in this matter on July 10,
1984.     In that motion, the PSC stated in part:
        "The issue rasied by MPC1s appeal will have
        profound and far-reaching effects on both MPC and
        the people of Montana.


       "Whether one views the issue presented by MPC in
       this case from a ratepayers viewpoint or from the
       utility's viewpoint, it is one that has major
       ramifications for the State of Montana.         It
       involves the statutory interpretation of a very
       significant    and   fundamental   law   governing
       construction of major facilities in this State
       (75-20-101-et seq., MCA)          .
                                     It also involves a
       public utility statute that goes to the heart of
       the PSC's regulatory jurisdiction over the State's
       public utilities."
       On numerous occasions this Court has accepted original
jurisdiction to hear cases having statewide impact and where
significant governmental policy was involved.                   In State ex
rel. Ward vs. Anderson et al., (1971), 158 Mont. 279, 491
P.2d 868, the plaintiff, an elector and taxpayer of Lewis and
Clark     County,    sought    a     declaratory     judgment    respecting
authority     of    the   Board     of   Examiners   to    issue and    sell
long-range    building      program      bonds.      The   Court   accepted
original jurisdiction because a legislative act was called
into    question     vitally       affecting   Montana's    education   and
highway programs.          Likewise, in Guillot v.          State Highway
Commission (1936), 102 Mont. 149, 56 P.2d                  1072, plaintiff
sought to invoke original jurisdiction of this Court to
prohibit the State Highway Commission from expending funds
for    the   erection of       a    highway    building.     In accepting
original jurisdiction the Court emphasized that it was doing
so because interests of the public were involved in the
controversy and the threatened harm was imminent.
       The most recent controversy involving public interest
questions, wherein this Court assumed original jurisdiction,
was Grossman v. Dept. of Natural Resources, et al., (1984),
41 St.Rep. 804.     The question at the heart of the controversy
was authorization for the DNRC to sell revenue bonds for
funding Montana's water resources program.           We there assumed
original    jurisdiction     because     the   decision    would    be    of
statewide significance       and because delay        in making          that
decision did not serve the public interest.
     We find that the requirements of Rule 17, M.R.App.Civ.P.
have been satisfied.         The resolution of this controversy
affects people throughout the state.            Delay could result in
irreparable harm to the Montana Power Company.             Assumption of
jurisdiction may also promote judicial economy.
     We    are   reluctant    to   further     discuss     a   basis      for
jurisdictional assumption which might be interpreted as a
predetermination of the substantive issue.                Nothing herein
should be construed to indicate a position on the question to
be ultimately decided.
     We    assume   jurisdiction    to    decide   the     narrow      legal
question of whether the certificate issued by the Board of
Natural Resources and Conservation is conclusive and binding
on the Public Service Commission.          The Montana Power Company
will file its opening brief by the 27th day of September,
1984.     The remainder of the briefs will be filed pursuant to
the rules governing briefs.        After briefs are filed the case
will be set for oral argument.
 %a&-
We concur:

Chief Justice
                ,

                " '




Justices




District Court Judge
sitting in place of Justice
John C. Sheehy
Mr. Justice Daniel J. Shea, dissenting:


     Since I have been on this Court, I have adhered to the
view that the special jurisdiction of this Court should not
be invoked where the party invoking it has an appeal whereby
all the issues can be presented.           I adhere to this view
today.   This case is too complex and too important to decide
on a piecemeal basis   ------- the choice of the majority.
     The decision to take jurisdiction rests not on the
invocation of sound judicial principles, but rather on the
use of raw judicial power to achieve the results sought by a
majority of this Court.     The invoca.tion of a phrase which I
have heard often within the inner sanctums of this Court
aptly summarizes the decision to take jurisdiction:          "If -
                                                              - we
- - say aye, - - there -
are to       who is    to                nay?"
     The emergency provisions stated in Rule 17, do not apply
here, the majority pronouncement, notwithstanding.           First,
that a decision may affect many people throughout this state
is no basis for assuming jurisdiction.       Many cases we decide
affect people in this state in one way or another, and yet we
normally do not let the parties involved bypass the normal
appeal   procedures.     Moreover,   a    decision   not   to   take
jurisdiction would ultimately place this Court in a much
better position to reach a decision based on an understanding
of the entire case.
     Second, the delay involved in not taking jurisdiction
will not work irreparable harm upon the utility, for it is
but a normal risk of business that an appeal must start in
the District Court before it can get to the Supreme Court.
The fact that if the utilities later win in the District
Court or before this Court, they cannot recoup their lost
revenues incurred during the time delays, is simply a cost of
doing business, a cost that all utilities other than the
Montana Power Company seem to be required to bear.                       If this
Court believes irreparable harm is proved by a utility's
inability to recoup losses during the judicial delays, then
every utility in this state should have the same right to
bypass appeals to District Court and to come straight to this
Court for its requested relief.
     Third, the order says that judicial economy "may" be
promoted, but nothing in the order indicates where judicial
economy "may" be furthered.                Nor is the possibility that
judicial economy "may" be furthered sufficient reason for
this Court to assume jurisdiction.                 This Court should be
convinced that, and its order should set out, precisely how
judicial   economy       will    be   promoted.         Depending        on   the
proceedings involved and the state of the record, it is just
as   likely     that     this    Court's     constant      intervention       and
interruption of the normal process of judicial proceedings
will have the effect of delaying and muddling the record
beyond redemption.
     Nor do I have the slightest idea of what is in the mind
of those signing the majority order where they state they are
reluctant to discuss another basis for jurisdiction for fear
of disclosing their hands on the substantive issue itself.
If   the      majority     has     unstated       reasons      for   assuming
jurisdiction,      it     appears     that    they      have     decided      the
substantive      issue     in     their     own    mind,       despite     their
protestations to the contrary.
                                                  Vtk-4 7
                                                       @-
     Finally, in defining the issue                && will decide, those

signing the majority order use the broadest possible language
in stating or defining the issue.            What is meant by the issue
being stated as "whether the certificate issued by the Board
of    Natural    Resources and     Conservation is conclusive and
binding on the Public Service Commission?"                 Conclusive and
binding on all facts or issues decided, or conclusive and
binding on more limited facts or issues decided?
       Further, the order of the majority mistakenly states
that     the    substantive   issue    being   litigated      is   whether
Colstrip No.         3 should be included in the rate base.               As
framed by the application and briefs submitted to this Court,
the    sole     substantive    issue    presented     is    whether    the
                                                                   &ARD
determination of need made a-lmost ten years ago by the .&wa
of Natural Resources and Conservation was intended by this
State's legislature to encompass all of the considerations
implicit in the PSC's subsequent determination of used and
                         S@A&@
useful, and whether the l3wxa.a of Natural Resources and
Conservation's decision was thereby intended to preclude any
further consideration by the PSC of the need for Colstrip No.
                                                    .Boa@ of
3's power. Even if this Court does decide that the -&+eem
Natural Resources and Conservation has the sole legislative
a.uthority to determine the need for Colstrip No. 3's power,
the    issue of whether the PSC is obligated, pursuant to
section 69-3-109, MCA, to include any of the cost of Colstrip
No. 3 in the rate base will be left undecided, as this issue
has not been presented to this Court.               Again, this is the
danger with bringing a case as vast and complex as the
present before this Court on a piecemeal basis.              With nothing
more before it than mere allegations of emergency, this Court
has decided to forego the benefits of a complete, informative
record    and    a    clear and   exhaustive determination of         the
substantive issues.
