Missoula asks court to assert jurisdiction over PSC in Mountain Water case (August 29, 2015)

The city of Missoula is asking District Court to direct the Montana Public Service Commission to dismiss its proceedings with a rival buyer for Mountain Water Co., saying the city has already been awarded constructive ownership and that future actions by the PSC would be moot.

In a petition filed Friday in Missoula County District Court, the city argued that the PSC erred when it granted Liberty Utilities Co. the right to keep certain documents secret during its quest to purchase Mountain Water.

The city also believes the PSC erred by failing to dismiss its proceedings with Liberty, saying District Court has already ruled on ownership, which makes pending decisions by the PSC irrelevant.

It makes zero sense for the PSC to consider that transaction given where we are in our process, Mayor John Engen said Friday. Because of (District Court) Judge Karen Townsend’s ruling, the city already has constructive ownership of Mountain Water. The PSC is wasting its time because of that constructive ownership.

The petition for judicial review asks the court to assert jurisdiction in the case by directing the PSC to dismiss the proceedings pending with Liberty. If that’s not possible, the petition asks the court to direct the PSC to delay the proceedings until the city’s condemnation case is complete.

We’re asking one of the District Court judges here do what the PSC has not done, and that's assert jurisdiction and say the PSC isn’t hearing this, or at least stay it pending the outcome of the condemnation proceedings, Engen said.

The petition marks a series of legal moves that began in April 2014 when the city first filed a condemnation action to acquire its drinking water system from The Carlyle Group, which owns Mountain Water.

Six months later, Liberty and Mountain Water filed a joined application with the PSC, seeking authorization for a merger. The city asked the PSC to dismiss or stay that request, but the PSC denied the city’s motion.

Along the way, the city said in its petition, it has sought to review information related to the requested merger. However, it has been denied the chance and, with it, a meaningful opportunity to participate in the proceedings.

After Townsend issued her preliminary order of condemnation in June, the city again asked the PSC to dismiss the proceedings, but again the commissioners denied the motion.

Two weeks ago, the PSC voted 3-2 to grant Liberty special protections.

That shouldn’t have been granted by the PSC, said Natasha Prinzing Jones of Boone Karlberg. This is the type of data that’s regularly provided in PSC proceedings, and it’s important to the citizens.

Three PSC commissioners believe the information provided by Liberty is proprietary and includes sensitive financial models. But commissioners Brad Johnson and Travis Kavulla disagree.

In a dissenting opinion issued Tuesday, Kavulla said the information provided by Liberty – and protected by the PSC – was relatively mundane and didn’t seem particularly sensitive.

I am left to wonder what the special protections stand for other than nuisance, Kavulla wrote in a partially redacted opinion.

In a note to the Missoulian this week, PSC communications director Eric Sell said the material was available for review by the city's attorneys on premises.

Although the normal form of distribution will not be used to distribute the information that was placed under special protection, we want to make it clear that the Montana Consumer Counsel and the city of Missoula do have access to analyze the information on site at Crowley Fleck’s office, and will be able to use it in their testimony for the proceeding before the commission, Sell said.

Jones, however, said that hasn’t been the case.

We were supposed to be given access to (the) data based upon the protections the PSC granted, but they have refused to share it, she said. Even on premises.

The city is asking District Court to direct the PSC to dismiss the proceedings with Liberty, or at least postpone them.

It’s also seeking legal fees and a court-ordered release of Liberty’s allegedly proprietary information.

The data will give citizens a glimpse of what they could expect if the PSC were to grant (Liberty) ownership, Jones said. It’s bad for the city of Missoula, in all likelihood, otherwise we’d be seeing it.

Source: Missoulian.com