Reasonableness of Requested Compensation

WEC requested $314,247.09⁵ for its participation in this proceeding, itemized as follows:

Advocate/Expert Type Hour/Rate⁶ Total⁷_____

James Weil Policy 19.6/$250 $ 5,954.63

Lon House Primary witness/Advocate 658.1/$260 $188,582.10

Vernon Masayesva Black Mesa Trust/Policy 75/$175 $ 15,524.40

Jerry Honawa Hopi-Native Expert 6/$50 $ 300.00

Leonard Selestewa Hopi-Native/Local 43.75/$50 $ 2,187.50

Tanya Lee Black Mesa Trust/Admin. 77.1/$150 $ 11,565.00

Andrea Hartley Black Mesa Trust/Admin. 48.5/$75 $ 3,637.50

Nicole Horseherder Navajo/To Nizhoni Ani- 364/$150 $ 70,821.83

Policy

Marshall Johnson Navajo/To Nizhoni Ani- 283/$50 $ 15,674.13

Native/Local

Total $314,247.09

The components of this request must constitute reasonable fees and costs of the customer's preparation for and participation in a proceeding that resulted in a substantial contribution. Thus, only those fees and costs associated with the customer's work that the Commission concludes made a substantial contribution are reasonable and eligible for compensation.

On February 28, 2005, SCE filed a response to WEC's claim for compensation pointing out certain components of the claim that might not be allowable under the intervenor statutes and precedent. In particular, SCE took issue with two categories of WEC's request: (1) compensation for preparing press releases and lobbying Navajo Nation governmental bodies that was not in preparation for Commission hearings (Pub. Util. Code § 1803), and (2) compensation for administrative overhead (Pub. Util. Code § 1803).

While SCE is correct that Pub. Util. Code § 1803, and Commission decisions on intervenor compensation, do not allow recovery for such activities, we are persuaded by WEC's reply comments⁸ that some limited exceptions to the normal prohibition are warranted here because of the unique nature of situation of the inhabitants of the Black Mesa.

To begin, WEC conceded that some of its requested claim for compensation was not supported by the statutes and voluntarily reduced its request accordingly. Specifically, WEC reduced expert Masayesva's request by $5,818.75, the amount to which SCE objected. In addition, WEC withdrew its request for $3,637.50 for Hartley's time, based on SCE's objection.

However, WEC presents arguments in support of the remainder of its compensation claim. As explained by WEC, representing the Navajo and Hopi who inhabit the vast area of the Black Mesa, where the mining activity takes place, presented unique communications issues. The Navajo Nation and the Hopi Tribe each had its own advocate participating in all phases of this proceeding. WEC was also representing members of both tribes who live on the Black Mesa and who will most be affected by the Commission's decision on Mohave. As WEC argued in support of its claim for "lobbying" time, "the two tribes don't get along in the best of times, and our work was doubly difficult because most of the Navajos we spoke for live on the Hopi Partition Land on Black Mesa . . ."⁹ Much of WEC's time was spent meeting and consulting with the inhabitants of Black Mesa in an attempt to reach consensus on their position regarding the continued operation of Mohave. When the cultural differences are compounded with the communication impediments of no telephone, e-mail or computer access in many parts of the Black Mesa area, WEC's argument in support of compensation for "consensus building" has some justification.

While the facts are sympathetic and WEC presented a cogent argument in support of the time spent lobbying/consensus building, we are constrained by the statute and these activities do not fit into the "preparing for litigation" category. Therefore, we are unable to grant WEC's claims for $29,742.31 for Horseherder and $5,540.53 for Johnson.

SCE also objected to WEC's request for $11,565.00 for Tanya Lee and $2,187.50 for Leonard Selestewa as being "administrative costs" that are not recoverable. WEC responded that Lee's activities were comparable to that of a paralegal in that she was responsible for receiving all the documents in the proceeding, summarizing them for the Black Mesa Board, then conveying testimony and policy directives back from the Board to WEC. Part of the critical importance of Lee's function was that she was stationed in Flagstaff, Arizona, where she had computer and other office equipment access, and could insure timely receipt and delivery of documents for the proceeding. WEC states that Lee spent almost 40% of her time reading and summarizing the documents. Considering this, we will allow 40% of Lee's requested compensation, and reduce the amount requested for her by 60%, awarding a total of $4,635.00 for her work.

WEC argues that Selestewa's fees should be allowed since, as President of the Black Mesa Trust, he was responsible for policy directives for the Commission proceeding, and as such the fees are not "administrative" work. We are convinced these fees were properly incurred as preparation for Black Mesa's participation in the proceeding and will allow them.

WEC documented its claimed hours by presenting a daily breakdown of the hours of its advocates, policy analysts and experts, along with a brief description of each activity. Given the scope of WEC's participation and the work products prepared, the number of claimed hours is reasonable. Since we find that WEC's efforts made a substantial contribution to the decision, we need not exclude from WEC's award any compensation for hours on specific issues. We only reduce WEC's hours as discussed above.