The Block Island Times

Appeal to PUC settlement discussed

Individuals or town can do so
By Stephanie Turaj | May 19, 2013
Photo by: Kari Curtis

The Town Council this week discussed whether it should appeal a decision by the R.I. Public Utilities Commission (PUC) that included a freight rate increase as one of the means by which Interstate Navigation can increase company revenue next year.

“The proposed changes greatly, disproportionately, affect lifeline services,” said Town Councilor Sean McGarry. Whether the town should appeal the decision, McGarry said: “I feel we have a very strong case.”

On April 29, the PUC accepted a settlement agreement between Interstate Navigation and the R.I. Division of Public Utilities and Carriers that allows the ferry company to generate $579,388 in additional traditional ferry revenues. Along with a 34 percent increase in freight charges, there will be an increase in truck charges, a slight increase in passenger ticket costs and a decrease in car charges.

Any individual could appeal the PUC decision, and can do so in Rhode Island Supreme Court, according to PUC Legal Counsel Cindy Wilson-Frias.

“As a party, the town certainly could file for an appeal,” said Wilson-Frias. “A town resident could file. The statue that allows for appeals is very broad.”

However, at the May 15 town council meeting, Town Solicitor Kathy Merolla cautioned the council that winning a PUC appeal could be difficult.

“The standards by which the [Supreme] Court can overturn the PUC decision is traditionally very limited,” she said. “If there were findings or there were evidence going both ways, and the PUC chose one set of testimony, the court wouldn’t substitute the judgement of the PUC.”

Merolla said the court likely wouldn’t choose to change the PUC decision, “unless it is shown to be clearly, palpably and grossly unreasonable.”

“It’s pretty grossly unreasonable,” said McGarry. “The fact that the community spoke so adamantly and none of that was taken into account.”

“I think the process that they [the PUC] used, and the data they looked at is seriously flawed,” said island resident Blake Filippi, who is also an attorney. Filippi questioned the accuracy of some of Interstate’s financials and income.

Both First Warden Kim Gaffett and Town Councilor Norris Pike expressed reluctance to appeal the decision. “I think that was the best we could do,” said Pike. “If we appeal, I think we’re going to waste legal money.”

Pike said the town council now needs to focus on negotiating with Interstate to increase or at least maintain its boat schedule.

“My main concern is the schedule,” said Pike. “If we go to court, I don’t know how much ground we’re going to gain on the schedule.”

“I’d like the court to take a look at lifeline services and to make a definitive ruling on what is required to meet that obligation,” said McGarry.

“In the future, we should be able to negotiate with the PUC,” said Town Councilor Chris Warfel, who expressed dissatisfaction with the amount of input the town had in the rate agreement.

A party or individual looking to file an appeal has seven days after the PUC issues a written order on the Interstate decision (the written order has not been issued yet) to submit a writ of certiorari with the Supreme Court, said Wilson-Frias. (A writ of certiorari is a document that a losing party files to review the decision of a lower court.)

The Supreme Court will review documents used in the PUC decision, and there would ultimately be an oral argument in court during which the Division of Public Utilities and Carriers would represent the PUC, said Wilson-Frias.

“When you file the petition of writ of certiorari, you have a memorandum where you specifically address points that you believe are the reason behind the petition and why you think the court should overturn the decision” said Merolla. “You want to make as strong a case as you can.”

“The council approved testimony to be submitted,” said Town Manager Nancy Dodge. “That initial testimony said that this council ‘reluctantly approved’ the terms of the settlement, and that was voted by this council. It was a position taken by the town council, and that is part of the record that any superior court would look at.”

The council took no action at this time, but seem inclined to hold a special meeting once the written order is issued by the PUC.

“I think it’s very important that we look at the order and determine whether or not we met good criteria for appeal,” said councilor Warfel.

Wilson-Frias said that once the written order is issued by the PUC, all interested parties, including the town, will be notified. It will also be listed on the PUC website,

“I’ve always supported the company [Interstate]. Nobody is challenging the company’s right to an increase. It’s how they dispersed that increase,” said resident Cliff McGinnes.

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