You can
search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Matanuska Electric Ass'n. v. Chugach Electric Ass'n. (8/23/2002) sp-5611
Matanuska Electric Ass'n. v. Chugach Electric Ass'n. (8/23/2002) sp-5611
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
MATANUSKA ELECTRIC )
ASSOCIATION, INC., a non-profit ) Supreme Court No. S-9839
electric membership cooperative, )
) Superior Court No.
Appellant, ) 3AN-98-9775 CI
)
v. ) O P I N I O N
)
CHUGACH ELECTRIC ) [No. 5611 -
August 23, 2002]
ASSOCIATION, INC., a non-profit )
electric membership cooperative, )
)
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Stephen M. Ellis and Jeffrey P.
Stark, Delaney, Wiles, Hayes, Gerety, Ellis &
Young, Inc., Anchorage, for Appellant.
Donald W. Edwards, Chugach Electric
Association, Anchorage, and Andrew F.
Behrend, Heller Ehrman White & McAuliffe LLP,
Anchorage, for Appellee. Virginia A. Rusch,
Assistant Attorney General, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Amicus Curiae Regulatory Commission of
Alaska.
Before: Fabe, Chief Justice, Matthews,
Bryner, and Carpeneti, Justices. [Eastaugh,
Justice, not participating.]
CARPENETI, Justice.
I. INTRODUCTION
Retroactive ratemaking by a utility is prohibited in
Alaska, as it is in the majority of jurisdictions in the United
States. The Regulatory Commission of Alaska compelled Chugach
Electric Association to refund payments collected as a result of
a miscalculation in the cost of generation and transmission line
loss. The superior court, concluding that the commission's
ruling constituted retroactive ratemaking, reversed the
commission's order. We agree, and therefore affirm the decision
of the superior court.
II. FACTS AND PROCEEDINGS
"To comprehend the rule against retroactive ratemaking
[as well as the facts involved in a retroactive ratemaking case],
it is necessary first to understand the process for the setting
of public utility rates."1
A. Background
The provision of electric service by Chugach Electric
Association, Inc. (Chugach) and Matanuska Electric Association,
Inc. (MEA) is governed by AS 42.05. Because Chugach and MEA are
electrical cooperatives organized under AS 10.25, they come under
the provisions of AS 42.05.
Chugach generates electricity and sells it wholesale to
MEA. Chugach's rates have two components: a base rate and an
adjustment to that rate known as a fuel surcharge. The base rate
reflects the fixed costs of providing electric service, as well
as other costs that tend to remain stable. The fuel surcharge is
a fluctuating charge that operates to protect Chugach against
those costs associated with purchasing and generating power that
are not as stable.
A utility's rates and business practices are governed
by the tariffs it has in effect with the Regulatory Commission of
Alaska2 (commission).3 The filing or revision of a tariff is a
complicated and lengthy process.4 As a means of expediting the
procedure, Alaska state law allows utilities to utilize a
simplified rate filing process.5 The simplified rate filing
process allows utilities to modify their base rates through
quarterly or semi-annual rate filings.6 Through this process,
utilities are allowed to adjust their base rates, subject to
certain limitations,7 without filing and litigating full rate
cases.
While the simplified rate filing is a means for a
utility to have an expedited procedure to establish its base
rate, a Cost of Power Adjustment Filing allows the same expedited
process for surcharges. The Fuel and Purchased Power Cost
Adjustment Factors (fuel surcharge filing) is an adjustment
Chugach filed with the commission to its base rate and is the
focus of the present dispute. This surcharge is calculated
through a procedure established in a tariff similar to the
simplified rate filing process. Through this mechanism, the
commission permits utilities such as Chugach to collect a
surcharge designed to recover fluctuations in fuel costs relative
to costs in the base rate.8 Fuel surcharge filings are not
subject to the same review as the base rate, although there are
some similarities between the fuel surcharge filing procedure and
simplified rate filing procedure.
This appeal involves the use of an estimated generation
and transmission system energy loss in Chugach's fuel surcharge
filings. A generation and transmission line loss factor is an
adjustment to the base rate to reflect the amount of electric
energy that is lost through its generation and transmission.
This amount varies and cannot always be accurately predicted.
Because of the fluctuations, it is part of the fuel surcharge and
is adjusted on a periodic basis.
Additionally, because the fuel surcharge is an
estimate, the amount collected might fall short or exceed the
actual cost of a utility's fuel and purchased power. After a
given period, the commission reconciles fuel cost recoveries
collected through a fuel surcharge. Such recoveries are
collected in a balancing account and only balance "over- or under-
collections occurring in the immediately preceding quarter
through adjustments for the following quarter." "The purpose of
these `true-up' proceedings is to determine whether the amounts
passed through to customers were in accordance with the [actual
surcharge]."9 Thus, whatever variances occur are taken into
account when calculating the next quarterly fuel surcharge
filing.
B. Facts
Chugach's fuel surcharge was approved in 1987 and
governed Chugach's collection of fuel surcharges. Approval
authorized Chugach to collect fuel surcharges as an adjustment to
base rates if certain requirements were met. Approval of the
surcharge permitted adjustments to the rate on a quarterly basis.
The amount of the permissible adjustment was the difference
between the estimated fuel and purchase power costs for the
upcoming quarter and the base amount established in the tariff.
To support these estimates, Chugach was required to file a tariff
advice letter with the commission, no later than forty-five days
after the beginning of each quarter, along with tariff sheets
showing the fuel surcharges, studies of its fuel and purchased
power costs, documentation of those costs, as well as other
supporting documentation.
The Fuel and Purchased Power Cost Adjustment Factors
established a balancing account to reconcile the fuel surcharge
with actual fuel costs. Through separate accounts for wholesale
and retail customers, Chugach debited the actual monthly fuel and
purchased power costs and credited the total of the base rate
plus the fuel surcharge in effect for that month multiplied by
the number of kilowatt hours sold. The commission was permitted
to adjust Chugach's fuel surcharge rates individually and in its
simplified rate filing each quarter, but only under limited
circumstances. The procedures established by the Fuel and
Purchased Power Cost Adjustment Factors provided that all fuel
surcharge rates are subject to review and adjustment after being
implemented unless "sooner authorized" by the commission.
Chugach sought and gained the approval of the
commission before each surcharge was implemented. At the time
the commission's approval is sought, the same information is
submitted to Chugach's customers. Thus, MEA received a copy of
Chugach's fuel surcharge documentation each time it was submitted
to the commission. A fuel surcharge filing can total well over
100 pages.
Upon submitting its fuel surcharge filing to the
commission, Chugach's documents are reviewed and a tariff action
memorandum is prepared by a utility tariff analyst. All of the
tariff action memoranda in this case reflect that the documents
were in fact received, reviewed, and that the calculations
contained in them were correct. In each tariff action
memorandum, the utility tariff analyst recommended the commission
approve Chugach's tariff advice letter submitting that quarter's
fuel surcharge. Each tariff advice letter submitted for the 1995-
1997 period received commission approval before it became
effective. Each contained that quarter's fuel surcharge rate.
Since the mid-1980s, Chugach has used a line loss
factor of 5.219% in its rate filings for wholesale customers. In
a general rate case in 1987, the commission issued an order
formally approving this factor as an appropriate reflection of
Chugach's transmission line losses. This line loss factor was
identified in all of Chugach's simplified rate filings and each
of the quarterly fuel surcharge filings that the commission later
approved.
In November 1997 Chugach and MEA discovered a
discrepancy in the line loss factor Chugach used in its projected
fuel surcharges. Chugach's own documents showed the actual line
loss experienced by Chugach in 1995, 1996, and 1997 was
substantially lower than the 5.219% Chugach had claimed in its
simplified rate filings and fuel surcharge filings. On June 25,
1999 a utility tariff analyst recommended suspension of the
surcharge.
When confronted with the discrepancy between its actual
line losses and what it had charged for line losses, Chugach
acknowledged and rectified the error. Chugach then submitted
revised tariffs to the commission that more accurately reflected
the line loss factor in future rates. Chugach, however, refused
to refund the overcharged tariffs, invoking the doctrine
prohibiting retroactive ratemaking.
C. Proceedings
This appeal arises from commission docket number U-96-
37. Until December 1997 the issues in that docket were limited
to Chugach's base rates established through the simplified rate
filing process. On December 19, 1997 MEA raised the issue of the
incorrect generation and transmission line loss factor. MEA
asked the commission to correct Chugach's line loss factor and
demanded a refund based on the difference between the incorrect
line loss factor and the corrected one.
In Order U-96-37(13) issued on July 1, 1998, the
commission ordered Chugach to recalculate its fuel surcharges for
1995 using the actual line loss factor for that year. The
commission also ordered Chugach to refund an amount based on the
difference between the original line loss factor and the revision
to its wholesale customers. In making its decision, the
commission noted that "the principles relevant to retroactive
ratemaking are not applicable to fuel adjustment clauses."
Both Chugach and MEA sought reconsideration of the
commission's order. Chugach argued the commission overlooked the
prohibition against retroactive ratemaking, creating
"confiscatory rates which result in taking Chugach property
without due process of law." The commission denied Chugach's
request for reconsideration. MEA's petition for reconsideration
asserted that the commission's previous order was internally
inconsistent. MEA noted the order only addressed the use of the
newly calculated generation and transmission line loss factor for
1995, failing to require a new line loss factor be utilized for
the 1996 and 1997 portions of the refund. The commission granted
MEA's request and ordered refunds for the additional years using
the actual line loss factor from those particular years.
Chugach appealed the commission's decisions in U-96-
37(13) and U-96-37(18)10 to the superior court. Both MEA and the
commission filed briefs in response. On July 27, 2000 the
superior court reversed the commission's decision. In his
decision, Superior Court Judge Peter A. Michalski held that the
commission clearly erred "in its determination that Chugach's use
of the tariff mandated line loss factor was `incorrect';" Judge
Michalski also held "that going back more than one quarter in the
correction of a Cost of Power Adjustment constitutes retroactive
rate making."
MEA now appeals. The commission declined to pursue an
appeal and is no longer a party to this action. It has, however,
filed an amicus curiae brief outlining its position.
III. STANDARD OF REVIEW
In an administrative appeal where the superior court
acts as an intermediate appellate court, we directly review the
agency action in question.11 "As we substitute our judgment, it
is our duty `to adopt the rule of law that is most persuasive in
light of precedent, reason, and policy.' "12
Whether the commission's decision ordering Chugach to
refund MEA payments collected from fuel surcharges constitutes
unlawful ratemaking is a question of law. Because assessing the
scope of an agency's authority "involves statutory
interpretation, or analysis of legal relationships, about which
courts have specialized knowledge and expertise," our independent
judgment is used.13 "However, even under the independent judgment
standard [we have] noted that the court should give weight to
what the agency has done, especially where the agency
interpretation is longstanding."14
The commission's findings of fact are reviewed for
clear error and are only reversed if there is not substantial
evidence to support them.15
IV. DISCUSSION
A. The Rule Against Retroactive Ratemaking
Both MEA and Chugach agree that retroactive ratemaking
is impermissible under Alaska state law. We concur.
" `A fundamental rule of ratemaking is that rates are
exclusively prospective in nature.' "16 One purpose of having
such a rule is a consumer's right to rely on rates set by the
commission. "Some reliability, of course, is essential to the
public utility regulatory system. If commissions could
retroactively change rates willy-nilly,[17] and ratepayers' bills
and utility revenues were continually subject to large
fluctuations, serious questions would arise concerning the
legitimacy of the ratemaking process."18 Thus, the rule is
critical for a utility to plan its finances.19 Other purposes for
prohibiting retroactive rates include "investor confidence,
utility credit rating, and the integrity of service."20 And
"[r]etroactivity, even where permissible, is not favored, except
upon the clearest mandate."21
The question before us is whether requiring Chugach to
refund amounts collected in excess of the generation and
transmission line loss factor constitutes impermissible
retroactive ratemaking.
B. The Rule Against Retroactive Ratemaking Applies to the Fuel
Surcharge at Issue.
Chugach contends that the rule against retroactive
ratemaking applies to the fuel surcharge here. MEA, as well as
the commission, distinguish the fuel surcharges from regular
commission-made rates, both arguing that, because of this
distinction, fuel surcharges are not susceptible to the
prohibition.
1. The fuel surcharge constitutes a commission-made rate.
1. While Chugach maintains that the fuel surcharge for the
generation and transmission line loss factor is a rate, MEA
claims the surcharge is distinguishable from a rate. The
commission concurs with MEA, arguing that fuel surcharges are
distinct from actual rates because "unlike traditional rates
which are estimates derived from historical costs and consumption
adjusted to predict future costs and consumption, surcharges in
Alaska are designed and administered to cover actual costs
exactly."
"The difficulty in classification [for fuel surcharges]
stems not only from the inflationary rise in fuel costs that
triggered the problem, but from the fact that fuel cost
adjustment clauses are themselves unique animals that are not
easily assimilated to classical rate-making principles."22
Chugach draws a distinction in the case law regarding
fuel surcharges that have been pre-approved by the relevant
state's utilities commission from those where the fuel surcharge
did not receive such review. In distinguishing between the two,
Chugach notes that where the fuel surcharge received approval by
the necessary authority before enactment, the court did not
permit a retroactive refund of any excess rates, finding it
constituted retroactive ratemaking. However, where the utility's
surcharge did not receive review, the court was more likely to
find the rule against retroactive ratemaking did not apply, as
the commission retained jurisdiction over the matter. MEA,
however, argues that it is not whether the rates were reviewed
that matters, but rather how much review they received. The
question, therefore, is what type of review does the commission
provide for fuel surcharge filings in Alaska and whether such
review is adequate to consider a fuel surcharge a rate,
applicable to the prohibition against retroactive ratemaking.
a. Fuel surcharges in Alaska receive a documentary review.
Chugach argues that the distinction between the instant
case and those cases supporting the proposition that fuel
surcharges are in a different category than rates is that the
charges in this case were approved by the commission. MEA and
the commission argue that the fuel surcharge filings utilized by
Chugach only received ministerial review. Chugach's position is
the more persuasive.
In their dissent from the commission's order denying
reconsideration, Commissioners Alyce A. Hanley and James M. Posey
wrote "[t]he argument that [Chugach's fuel surcharge] filings
were only subject to a superficial review is disingenuous." The
dissenters note that the filings received "extensive review."
However, utility tariff analyst Dawn Bishop-Kleweno affied that
"[u]nder the present system, it is simply impossible to
thoroughly investigate fuel surcharges like rates in a rate
case."
Chugach used the simplified rate filing process to
establish its base rates and argues that if the same review is
given to fuel surcharge filings as to simplified rate filings,
one cannot constitute a rate if the other does not. The
processes are indeed similar. Chugach submitted the same amount
of documentation for both its simplified rate filings as well as
its fuel surcharge filings. Much of the same information is
included in both processes. Both filings are made at least forty-
five days before the rate takes effect and are subject to
investigation and possible suspension if the commission feels
they need additional time for review.23 Simplified rate filing
rates are deemed final once they are approved.24
b. The commission's review of Chugach's fuel surcharge is
substantial enough to constitute a rate.
Despite the similarities between the simplified rate
filing and fuel surcharge filing review processes, MEA and the
commission claim their differences outweigh the similarities
because the commission's review of the latter is purely
ministerial. We disagree.
It is true that the fuel surcharge filing procedure is
not the same as the simplified rate filing process in all
respects. While the simplified rate filing applies to base
rates, the fuel surcharge filing is for estimated costs such as
line loss factors. Generally, there is no public notice
regarding fuel surcharge filings. The commission also notes that
generally there is also no hearing. Under AS 42.05.421, however,
the commission does have the power to conduct a hearing upon its
own motion "to determine the reasonableness and propriety of the
filing."
The commission further argues that the analyst's
duties, in reviewing a fuel surcharge filing, do not include
investigating the underlying accuracy of information such as the
line loss factor or meter read data, claiming the fuel surcharge
filing is primarily reviewed "to verify the prior quarter's fuel
costs . . . unless something unusual stands out," and that,
"[t]here simply is not enough time to investigate a utility's
estimates for fuel costs and [kilowatt hour] sales prior to the
next quarterly filing." While this may generally be true, in the
present case MEA acknowledges that in 1987 the commission issued
an order in a contested general rate proceeding in which MEA
itself was an intervenor, expressly finding it appropriate for
Chugach to use a 5.219% line loss factor for its transmission
losses. Thereafter, Chugach relied on this order, and the
commission repeatedly approved the same figure for Chugach's line
loss factor for a period of years without inquiring into why
there was no fluctuation, something that could be considered
"surprisingly unusual." And, although the balancing account
rectifies other changes in price, the account cannot rectify the
constant use of the wrong figure when it is not due to any actual
costs, but instead human error.
The law supports this approach. "[T]he essential
principle of the rule against retroactive ratemaking is that when
the estimates prove inaccurate and costs are higher or lower than
predicted, the previously set rates cannot be changed to correct
for the error; the only step that the [commission] can take is to
prospectively revise rates in an effort to set more appropriate
ones."25 As one court stated, "[t]ariffs are encompassed within
the prohibition against retroactive ratemaking, particularly
when, as in the present case, they share similarities with rate
schedules."26 Here, the similarities vastly outweigh any
differences between the two. And, as the court stated in First
Hartford Corp. v. Central Maine Power Co.,27 "[w]hether or not the
clauses were `just, reasonable and otherwise lawful', as the
Commission's orders recited, they functioned as rates, filed and
approved in advance of their inclusion in customers' charges."28
Thus, "[t]he time for challenging a fuel adjustment rate is
before the rate is approved by the Commission."29
Even if we were to agree with MEA and the commission
and find that the amount of review the commission gave to the
fuel surcharge filings was inadequate, we agree with the
Wisconsin Supreme Court's reasoning in Wisconsin Power & Light
Co. v. Public Service Commission of Wisconsin,30 making the
argument irrelevant.
In Wisconsin Power & Light, the public service
commission for the state of Wisconsin determined that Wisconsin
Power & Light imprudently administered a contract for coal
causing the company to overcharge customers for electricity.
Wisconsin Power & Light was therefore ordered to pay nine million
dollars in penalties, an amount derived from the actual
"overcharges." The case is similar to the instant case as one
party there contended that the penalties were valid, because
Wisconsin Power & Light "use[d] unreasonably high fuel costs"
when calculating its rates.31 It was thus argued that the
commission was only responsible for reviewing the formula, not
the numbers plugged into it.32 Similarly here, the commission
claims analysts are not responsible for investigating the
numbers. The Wisconsin court rejected this argument, as do we.
The commission had the power to review Chugach's filings each
time they were submitted. The record shows that the amount of
review given fuel surcharge filings is in dispute. As in
Wisconsin Power & Light, however, the dispute is irrelevant.
What is relevant is that the commission had full power to review
additional data concerning Chugach's line losses and to reexamine
its own determination that a 5.219% line loss factor was
appropriate; yet neither the commission nor MEA questioned
Chugach's continuing reliance on the approved line loss factor
until 1997.
The commission, which purportedly reviewed the filings,
cannot now argue that proper review did not take place. Chugach
requested approval of its surcharges before passing them through
to its customers. The commission's duty to check submitted
filings for accuracy is not excused; it has specific statutory
authority to investigate and even suspend a utility's proposed
filing prior to implementation.
2. Is the one-quarter limitation for true-ups prohibited by the
rule against retroactive ratemaking?
In his order, Judge Michalski holds that "going back
more than one quarter in the correction of a Cost of Power
Adjustment constitutes retroactive rate making."
Whether or not true-ups should be limited to one
quarter is not an issue raised in the points of appeal and is not
seriously briefed by any party. We deem issues addressed only
cursorily in briefs waived by the party.33 Where an issue
involves a question of law that is critical to a proper decision,
it may be considered.34 However, in the instant case, this
question is best considered by the commission35 and is not
critical to our finding that any refund would be retroactive
ratemaking. Accordingly, we decline to consider the allowable
duration of the true-up period.
3. The commission's powers do not include the power to bypass
the rule against retroactive ratemaking.
In this case, the commission approved each tariff
establishing the quarterly fuel surcharge rate before that rate
took effect. Chugach argues that, even if the commission had the
general authority to change a commission-approved fuel surcharge
rate, it could not do so in the instant case as the procedure for
revising the quarterly fuel surcharge rate is in the tariff
itself.36 MEA responds that the commission's actions here were
valid under our previous case law, which stated that it has
"whatever powers are expressly granted to it by the legislature
or conferred upon it by implication as necessarily incident to
the exercise of powers expressly granted."37 We need not consider
whether or not the commission's order violates the procedures
established in the tariff, as we have already found any refund
here would constitute retroactive ratemaking.
4. The evidence does not support the conclusion that Chugach
knew that the actual line loss factor was below 5.219%.
In its brief, MEA contends that a decision in Chugach's
favor would allow Chugach to retain the benefit of an incorrect
line loss factor and that Chugach knew the line loss factor was
incorrect for several years and did not use this knowledge to
correct the factor. MEA claims that when Myles C. Yerkes, a
representative of the Alaska Electric Generation & Transmission
Cooperative, met with Chugach he was provided line loss data for
the 1995-1997 period. MEA then argues that "expressly set out in
those documents, the actual . . . line loss for those years was
not 5.219%, but rather 3.64%, 2.61%, and 2.79%."
Chugach denies there is any evidence that it knew that
the line loss factor it was using was incorrect. Although the
documents MEA cites do set out line loss factors below 5.219%, it
is not clear when these documents were generated. Also, Yerkes
states in his affidavit that Chugach assumed the 5.219% rate
"instead of calculating the actual value."
The assertion that Chugach had prior knowledge of the
overstated line loss is not supported by the evidence.
V. CONCLUSION
The prohibition against retroactive ratemaking applies
to the generation and transmission line loss factor included in
Chugach's fuel surcharge filing. We therefore AFFIRM the
decision of the superior court that reversed the commission's
order requiring Chugach to refund its wholesale customers amounts
collected in excess of the actual line loss factor.
_______________________________
1 Stefan H. Krieger, The Ghost of Regulation Past:
Current Applications of the Rule Against Retroactive Ratemaking
in Public Utility Proceedings, 1991 U. Ill. L. Rev. 983, 993.
2 In 1999, the name "Regulatory Commission of Alaska" was
substituted for "Alaska Public Utilities Commission" in
accordance with ch. 25, 30(a), SLA 1999.
3 AS 42.05.371.
4 As MEA notes,
under 3 AAC 48.220, an original and 10 copies
of each utility tariff filing must be
provided to the Commission at least 45 days
prior to the proposed effective date.
Moreover, 3 AAC 48.275 sets forth a
voluminous list of supporting materials that
must accompany a permanent or interim tariff
revision. The Commission examines the
information provided in the course of its
investigation, which can take several months
to complete.
5 AS 42.05.381(e).
6 3 Alaska Administrative Code 48.710(b) (2000).
7 3 AAC 48.770.
8 These surcharges can also be referred to as fuel cost
adjustment clauses. "[T]he purpose of such a clause is to permit
prompt rate adjustment to offset unusual changes in fuel costs .
. . ." Southern California Edison Co. v. Pub. Utils. Comm'n, 576
P.2d 945, 947 (Cal. 1978).
9 Krieger, supra note 1, at 1017.
10 This was the order granting MEA's petition for
reconsideration and denying Chugach's motion for reconsideration.
11 See Northern Alaska Envtl. Ctr. v. State, Dep't of
Natural Res., 2 P.3d 629, 633 (Alaska 2000).
12 Cook Inlet Pipe Line Co. v. Alaska Pub. Utils. Comm'n,
836 P.2d 343, 348 (Alaska 1992) (citing Guin v. Ha, 591 P.2d
1281, 1284 n.6 (Alaska 1979)).
13 Far N. Sanitation, Inc. v. Alaska Pub. Utils. Comm'n,
825 P.2d 867, 871 n.6 (Alaska 1992).
14 Nat'l Bank of Alaska v. State, Dep't of Revenue, 642
P.2d 811, 815 (Alaska 1982).
15 Tlingit-Haida Reg'l Elec. Auth. v. State, 15 P.3d 754,
761 (Alaska 2001).
16 Far N. Sanitation, 825 P.2d at 872 (quoting New England
Tel. & Tel. Co. v. Pub. Util. Comm'n, 358 A.2d 1, 20 (R.I.
1976)).
17 "Whether desired or not . . . . Being or occurring
whether desired or not." An alteration of "will ye, nill ye, be
you willing, be you unwilling." Webster's II New Riverside
University Dictionary 1320 (1988).
18 Krieger, supra note 1, at 1040.
19 Far N. Sanitation, 825 P.2d at 872.
20 Alaska Pub. Utils. Comm'n v. Municipality of Anchorage,
902 P.2d 783, 788 (Alaska 1995).
21 In re Cen. Vermont Pub. Serv. Corp., 473 A.2d 1155,
1161 (Vt. 1984).
22 Maine Pub. Serv. Co. v. Fed. Power Comm'n, 579 F.2d
659, 668 (1st Cir. 1978).
23 AS 42.05.411(a); AS 42.05.421.
24 3 AAC 48.730(a) provides, in part: "A cooperative's
rate adjustment filing under 3 AAC 48.700 - 3 AAC 48.790 is
governed by 3 AAC 48.280 and will become permanent at the end of
the notice period described in AS 42.05.411 unless the commission
suspends the filing in accordance with AS 42.05.421."
25 Detroit Edison Co. v. Michigan Pub. Serv. Comm'n, 331
N.W.2d 159, 164 (Mich. 1982).
26 Kansas Gas & Elec. Co. v. State Corp. Comm'n of the
State of Kansas, 794 P.2d 1165, 1171 (Kan. App. 1990) (holding
the state's commission and the utility bound by the original
tariff until changed by further order of that commission).
27 425 A.2d 174 (Me. 1981).
28 Id. at 177.
29 Id. at 181.
30 511 N.W.2d 291 (Wis. 1994).
31 Id. at 295.
32 Id.
33 Elsberry v. Elsberry, 967 P.2d 1004, 1006 & n.3 (Alaska
1998).
34 Vest v. First Nat'l Bank of Fairbanks, 659 P.2d 1233,
1234 n.2 (Alaska 1983).
35 Cole v. Ketchikan Pulp Co., 850 P.2d 642, 647 (Alaska
1993) (remanding issue to Workers' Compensation Board because
board had not previously considered it and because parties had
not briefed or argued issue on appeal).
36 Chugach thus argues that the commission's order
violates four statutes in the utility code: AS 42.05.371, AS
42.05.411, AS 42.05.421, and AS 42.05.431.
37 Glacier State Tel. Co. v. Alaska Pub. Utils. Comm'n,
724 P.2d 1187, 1190 (Alaska 1986).
