Advocate Information

First Name	Last Name	Type	Intervenor	Hourly Fee Requested	Year Hourly Fee Requested	Hourly Fee Adopted
James	Weil	Expert	Water and Energy Consulting	$250	2004	$250
Lon	House	Expert	Water and Energy Consulting	$260	2004	$260
Tanya	Lee	Admin.	Water and Energy Consulting	$150	2004	$150
Vernon	Masayesva	Expert	Water and Energy Consulting	$175	2004	$175
Nicole	Horseherder	Expert	Water and Energy Consulting	$150	2004	$150
Jerry	Honawa	Expert	Water and Energy Consulting	$50	2004	$50
Leonard	Selestewa	Expert	Water and Energy Consulting	$50	2004	$50
Marshall	Johnson	Expert	Water and Energy Consulting	$50	2004	$50

A.02-05-046

D.05-09-029

Concurrence of President Michael R. Peevey:

This decision approves a substantial intervenor compensation award toWater and Energy Consulting (WEC) for its contribution to D. 04-12-016 on behalf of members of both the Navajo Nation and Hopi Tribe. The award of $262,578.00 is imposed as an obligation on Southern California Edison Co. (SCE) and its ratepayers arising out of our consideration of the future disposition of the Mojave Generating Station located in Laughlin, Nevada. The Mojave facility obtains all of its coal supply from the Black Mesa coal mine which is located approximately 273 miles east of Mojave in northeast Arizona. The mine is on lands of the Hopi Tribe and Navajo Nation.

While I concur in the result of this order, I am dissatisfied with the process leading to the Commission's finding that "WEC represents consumers, customers, or subscribers of SCE, a utility regulated by the Commission" (Finding of Fact No.1). As discussed below, an affirmative finding of a clear nexus between WEC and at least one public utility customer of SCE is an essential element of the Commission's legal ability to provide intervenor compensation. However, having reviewed the pleadings and record related to the request of WEC for compensation, I cannot detect any clear basis or support for its claimed representation of a "public utility customer" as required by Public Utilities Code Section 1801, and further defined by Section 1802(b). Given the Commission's recent insistence on meeting a high standard of proof for this particular element of an intervenor compensation request, I am puzzled by our failure to require more substantial proof of utility customer representation in this case. This apparent indifference toward our normal insistence on formal proof of utility customer representation is even more troubling due to the somewhat unique geographic facts underlying this docket.

According to WEC's intervenor compensation request, it represents the Black Mesa Trust, a
non-profit organization representing Hopi sinom people, and their supporters, and
To'nizh Oni'ani, a grassroots organization of local Dineh people. The mission of the Black Mesa Trust is "To safeguard, preserve and honor the land and waters of Black Mesa". The only reference to WEC's representation of customers of Southern California Edison is a an unsupported statement in WEC's NOI to claim compensation that "(m)embership in the Black Mesa Trust includes residential customers of Southern California Edison Company."

In April, 2005 this Commission was asked to reconsider an ALJ's Ruling in R. 04-01-025 (Order Instituting Rulemaking to Establish Policies and Rules to ensure Reliable, Long-Term Supplies of Natural Gas to California) that deemed Ratepayers for Affordable Clean Energy (RACE) ineligible for intervenor compensation. RACE contended that it satisfied the "customer" requirement because "it was affirmatively authorized to represent at least one ratepayer in this proceeding"-namely, ratepayer Lynda Arakelian. The ALJ concluded that there were no documents in RACES's Notice of Intent to support the authorization arrangement between Arakelian and RACE. We unanimously agreed. (D.05-04-050, Conclusion of Law No. 2). Our order cited to D.98-04-059 which states that "A `representative authorized by a customer' connotes a more formal arrangement where a customer, or group of customers, selects a presumably more skilled person to represent the customers' views in a proceeding." This

A.02-05-046

D.05-09-029

requirement was further buttressed by reference to the Commission's "Intervenor Compensation Program Guide", which calls for "evidence of authorization" by a utility customer to an expert intervenor such as WEC.

Unfortunately, today's decision is largely devoid of any discussion of the utility customer requirement. After citation to the customer representation requirements of Public Utilities Code Section 1802(b), the decision simply references an earlier ALJ Ruling issued in May, 2003. That Ruling, after reciting that the Black Mesa Trust includes residential customers of SCE, based its finding of WEC's eligibility not on satisfaction of the Category Two "customer representation" requirement in Section 1802(b)(B), but instead on the third category of representation allowed by Section 1802(b)(C), which defines "customer" as:

C. "A representative of a group or organization authorized pursuant to its articles of incorporation or bylaws to represent the interests of residential customers, or to represent small commercial customers who received bundled electric service from an electrical corporation."

There are two troubling aspects to this determination. First, it does not appear from the ALJ's ruling that WEC submitted either the articles of incorporation or the bylaws of the Black Mesa Trust required by law. Thus, there is no clear basis to validate the standing of the Black Mesa Trust as a customer of SCE.

Secondly, the mission statement of the Black Mesa Trust , which appears to be the exclusive foundation used by the ALJ to for grant customer status, is seriously deficient in expressing the necessary authorization to represent "...the interests of residential customers...". The Commission recently addressed the eligibility requirements for customers claiming "Category Three" status in the context of a request by Local 483 Utility Workers of America for intervenor compensation following its intervention in rate proceedings and a related OII involving SoCal Gas and SDG&E. After initially finding the labor group to be eligible under Section 1802, we reversed ourselves, and concluded that it failed to qualify as a "customer" under any of the three categories of eligibility. I believe that opinion is instructive in this instance. (See D.04-10-012, rehearing granted in D. 05-02-054.)

I concur in the award of intervenor compensation in this matter because, notwithstanding my concerns about the eligibility process, to do otherwise would be unfair to WEC, who received a favorable eligibility ruling in May, 2003. However, I strongly urge our ALJ Division to continue its efforts toward creating and following a more uniform set of criteria for determinations of customer eligibility for intervenor compensation awards.

/s/ MICHAEL R. PEEVEY

MICHAEL R.PEEVEY

President

San Francisco, CA

September 22, 2005