Arizona Court of Appeals Division One holds that the Court does not have jurisdiction to consider the Tribe’s challenges to the Arizona Corporation Commission’s decision to provide transition assistance because the decision was not final.

Arizona Public Service Company (“APS”) filed a rate case with the Arizona Corporation Commission (the “Commission”) in 2019.  In response to APS’s plan to shut down coal-fired power plants located on or near tribal land, the Commission ordered APS to develop a proposal and budget to implement energy efficiency projects with communities affected by the closure of coal-fired power plants.  Subsequently, in 2021, the Commission ordered APS to pay “transition assistance” to the Hopi Tribe worth $2.25 million.  The Tribe petitioned for rehearing, which the Commission denied.  The Tribe then filed an appeal but agreed to stay the appeal while the Commission considered transition assistance issued in the generic docket.  The Commission closed the generic docket without deciding whether to award the Tribe additional transition assistance, leaving the issue to be determined in the 2022 rate cases.  In 2023, the Commission resolved Tucson Electric Power’s transition assistance obligation to the Tribe without awarding any additional funds.  The 2022 APS rate case is pending before the Commission. 

The issue in dispute is whether the Tribe can appeal the Commission’s transition assistance order.  The Court of Appeals dismissed the Tribe’s appeal for lack of jurisdiction.  The Court reviewed the Commission’s decision and found that it left open the possibility that the Commission may order additional transition assistance through the general docket.  And because an application for rehearing from a final decision is an administrative remedy which must be exhausted as a prerequisite for judicial review, the Court lacks jurisdiction to evaluate the merits of the Tribe’s arguments.  The Tribe may challenge the entire transition assistance award only after the entire transition assistance entitlement has been finally resolved.

Judge Perkins delivered the opinion of the Court, in which Judges Howe and Kiley joined.

Posted by: Sarah Pook Lawson