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NO. 82-175 I N THE SUPREME COURT OF THE STATE OF MONTANA 1983 THE MONTANA POWER COMPANY, Plaintiff and A p p e l l a n t , vs. . DEPARTMENT OF PUBLIC SERVICE REGULATION, MONTANA PUBLIC SERVICE COMMISSION e t a l . , Defendants Appeal from: Counsel of and Respondents. D i s t r i c t C o u r t o f t h e Second J u d i c i a l D i s t r i c t , I n a n d f o r t h e C o u n t y o f S i l v e r Bow H o n o r a b l e Mark S u l l i v a n , J u d g e p r e s i d i n g . Record: For Appellant: Crowley, Haughey, Hanson, T o o l e and D i e t r i c h , B i l l i n g s , Montana George C . D a l t h o r p a r g u e d , B i l l i n g s , Montana C o r e t t e , S m i t h , Pohlman a n d A l l e n , B u t t e , Montana H j o r t , Lopach and T i p p y , H e l e n a , Montana For Respondents: James C. Paine argued, Eileen E-Shore argued, Helena, Helena, Submitted: Decided: Filed: MAY 3 1 1983 Montana Montana March 1, 1 9 8 3 May 3 1 , 1 9 8 3 H o n o r a b l e James B. W h e e l i s , O p i n i o n of t h e C o u r t . Montana Power Company D i s t r i c t Judge, delivered (MPC) a p p e a l s from a the judgment e n t e r e d i n t h e S i l v e r Bow County D i s t r i c t C o u r t , t h e Honora b l e Mark P. Sullivan presiding, a f f i r m i n g an o r d e r of the P u b l i c S e r v i c e Commission (PSC) which s e t a l l o w a b l e e l e c t r i c rates. In April 1980 MPC f i l e d a n a p p l i c a t i o n r a t e i n c r e a s e s w i t h t h e PSC. for electric I n i t s r e q u e s t MC asked t h e P PSC t o a c c e p t , a s a p a r t o f t h e r a t e b a s e , money e x p e n d e d by t h e company i n o b t a i n i n g c o a l f r o m W e s t e r n Energy Company (Western Energy). s u b s i d i a r y and annual for Energy MPC's is s u p p l i e s 100 p e r c e n t of MPC's c o a l - f i r e d accounts Western wholly-owned t h e c o a l need g e n e r a t o r s i n C o l s t r i p and B i l l i n g s . a p p r o x i m a t e l y 1 5 p e r c e n t of coal s a l e s with the remaining for MC P Western Energy's 85 p e r c e n t of sales b e i n g made t o o t h e r u t i l i t i e s and m a n u f a c t u r i n g c o n c e r n s . D u r i n g t h e h e a r i n g on t h e r a t e i n c r e a s e r e q u e s t , the PSC h e a r d t e s t i m o n y on two d i f f e r e n t m e t h o d s f o r m o n i t o r i n g the reasonableness of the price F i r s t , MPC s u g g e s t e d t h e u s e o f MC P pays for its coal. t h e " m a r k e t p r i c e " method: a n ex a m i n a t i o n of t h e p r i c e charged i n t h e m a r k e t p l a c e f o r s i m i l a r s a l e s i n c o m p a r i s o n t o t h o s e b e i n g c h a r g e d by t h e subsidiary found, to the parent; if a favorable comparison is t h e p r i c e i s deemed r e a s o n a b l e a n d no a d j u s t m e n t i s necessary. S e c o n d , t h e Montana Consumer C o u n s e l s u g g e s t e d t h e " r a t e o f r e t u r n " m e t h o d , which c a l l e d f o r a n e x a m i n a t i o n o f t h e r e t u r n b e i n g e a r n e d by t h e s u b s i d i a r y on i t s s a l e s t o the parent; an excessive rate of return requires an adjustment. I n s u p p o r t of t h e " m a r k e t p r i c e " m e t h o d , M C s u b m i t t e d P a study prepared by Arthur Little, D. Inc., a firm of n a t i o n a l prominence i n t h e f i e l d of c o a l s u p p l y c o n t r a c t s . MPC r e q u e s t e d A r t h u r D. a t e bids Inc., Little, from c o a l s u p p l i e r s . n i n e c o m p a n i e s , A r t h u r D. Energy's price was Billings plant. the t o s o l i c i t and e v a l u - After Inc., Little, lowest price r e c e i v i n g b i d s from found t h a t Western available MPC's to The C o l s t r i p p l a n t s were n o t i n c l u d e d i n t h e s t u d y b e c a u s e t h e e x i s t i n g c o n t r a c t s had n o t e x p i r e d . In support of the "rate of return" method, the Consumer C o u n s e l ' s e x p e r t w i t n e s s , J o h n W. W i l s o n , p r e s e n t e d e v i d e n c e t h a t compared W e s t e r n E n e r g y ' s p r o f i t s w i t h t h o s e of other c o a l companies. Wilson's approach c h a r a c t e r i z e d W e s t e r n E n e r g y ' s p r o f i t a b i l i t y o f more equity capital as percent average f o r excessive the other when t h a n 20 p e r c e n t on computed to c o a l companies the used 13.5 in his comparison. In December presented, 1980, after analyzing the t h e PSC c h o s e t o r e l y o n t h e " r a t e o f method s u g g e s t e d by t h e Consumer evidence return" Counsel and r e j e c t e d " m a r k e t p r i c e ' ' method s u g g e s t e d by MPC. p e r c e n t t o be a r e a s o n a b l e r a t e of the The PSC f o u n d 1 3 . 5 r e t u r n o n c o a l s o l d by W e s t e r n E n e r g y t o MPC and o r d e r e d $ 9 0 0 , 7 3 0 o f MPC's r e q u e s t be disallowed. An a p p e a l o f t h e PSC o r d e r was t a k e n t o t h e D i s t r i c t C o u r t by MPC. A f t e r review, the court held that: (1) t h e e v i d e n c e p r e s e n t e d t o t h e PSC showed t h a t t h e r a t e o f r e t u r n established by the PSC compares closely to other coal c o m p a n i e s ; ( 2 ) MPC o f f e r e d no s u b s t i t u t e f o r w h a t i t t h o u g h t t h e r e t u r n f i g u r e should be, nor d i d it o f f e r any e v i d e n c e t o support a higher r a t e of return; ( 3 ) MPC, i n i t s r e b u t t a l of Consumer C o u n s e l ' s w i t n e s s W i l s o n , o f f e r e d no evidence t h a t W i l s o n ' s c o m p a r a b l e c o a l i n d u s t r y e a r n i n g s e x h i b i t was f a u l t y ; a n d , ( 4 ) MPC d i d n o t s u s t a i n i t s b u r d e n o f p r o o f a s t o t h e o r d e r o f t h e PSC b e i n g u n l a w f u l o r u n r e a s o n a b l e . (1) t h e MPC now a p p e a l s t o t h i s C o u r t c l a i m i n g t h a t : PSC f a i l e d t o g i v e e f f e c t t o t h e d e c i s i o n i n Montana-Dakota U t i l i t i e s Co. v . B o l l i n g e r ( 1 9 8 1 ) , 1086, 38 S t . R e p . e r r e d by strated 1221; Western available coal price and, PSC . , 632 P.2d ( 2 ) t h e PSC and t h e D i s t r i c t C o u r t i g n o r i n g MPC's that Mont substantial Energy's under coal e v i d e n c e which was price the demonlowest competitive market conditions; ( 3 ) t h e Montana Consumer C o u n s e l ' s e v i d e n c e w h i c h t h e adopted in imposing a rate of return limitation on Western E n e r g y ' s p r o f i t a b i l i t y is i n h e r e n t l y flawed. A p p e l l a n t M C c o n t e n d s t h a t t h e PSC s h o u l d n o t h a v e P used the "rate of return" method because a competitive m a r k e t was shown t o e x i s t and W e s t e r n E n e r g y ' s c o a l was t h e l o w e s t p r i c e d c o a l a v a i l a b l e t o MPC. It asserts the cost c l a i m e d by M C s h o u l d n o t h a v e b e e n deemed e x c e s s i v e . P Respondent contends t h a t t h e use of p r o f i t a b i l i t y a v e r a g e was n o t i m p r o p e r . t h e 13.5 p e r c e n t The i n t e r e s t o f t h e PSC i s t o see t h a t MPC d o e s n o t r e a p a n u n f a i r p r o f i t o n i t s i n v e s t m e n t i n i t s s u b s i d i a r y by a l l o w i n g t h e s u b s i d i a r y t o o v e r c h a r g e t h e p a r e n t f o r c o a l when t h e c o a l e x p e n s e w i l l b e passed on t o t h e r a t e p a y e r s . A very s i m i l a r s i t u a t i o n w a s presented t o t h i s Court i n Montana-Dakota Mont. , U t i l i t i e s Co. 632 P.2d v. 1 0 8 6 , 38 S t . R e p . Bollinger 1221. (1981), Montana-Dakota (MDU) had r e q u e s t e d a n i n c r e a s e o f i t s e l e c - tric utility rates. I n i t s r e q u e s t , MDU a s k e d t h e PSC t o U t i l i t i e s Co. accept, as part company in a the obtaining "rate r a t e base, coal of return" money from Knife a wholly-owned (Knife River), used of River method to of return allowed by Coal reduce the the Company s u b s i d i a r y o f MDU. i n v e s t m e n t f r o m a p p r o x i m a t e l y 33 p e r c e n t (the rate expended The PSC return t o 12.124 on percent its o v e r a l l opera- t o MDU o n tion). Apparently, remand MC P has misunderstood Montana-Dakota U t i l i t i e s interpret our marketplace decision to hold is e s t a b l i s h e d , b e u s e d by t h e PSC. to that, decision PSC. the our MPC a once to would competitive t h e " m a r k e t p r i c e " method m u s t W e remanded t h a t W d i d not s o hold. e case t o t h e PSC, n o t b e c a u s e t h e PSC c h o s e t o u s e t h e " r a t e o f r e t u r n " m e t h o d , b u t r a t h e r b e c a u s e t h e PSC d i d s o w i t h o u t s u f f i c i e n t evidence t o support its findings. U t i l i t i e s , 632 P.2d a t 1 0 9 1 , 38 S t . R e p . did We state a preference marketplace c o s t of c o a l approach, cient facts for its determination, a t 1227. for if Montana-Dakota "the PSC to use a it can o b t a i n s u f f i - rather than using the r a t e o f r e t u r n method w i t h a l l o f i t s d i f f i c u l t t h e o r i e s a n d computations." 38 S t . R e p . PSC h a s the Montana-Dakota U t i l i t i e s , a t 1228. I t was, however, r i g h t t o c h o o s e t h e method 632 P.2d recognized followed. a t 1092, that the The PSC s h o u l d n o t be r e s t r i c t e d t o any s i n g l e formula s o long as t h e method f o l l o w e d and t h e o r d e r e n t e r e d when a p p l i e d to t h e f a c t s and viewed a s a whole d o n o t produce a n u n j u s t o r abitrary result. 632 P.2d a t 1 0 9 1 , 38 S t . R e p . a t 1227. The PSC i s v e s t e d , by s t a t u t e , w i t h t h e d u t y t o s u p e r v i s e and r e g u l a t e t h e o p e r a t i o n s o f p u b l i c u t i l i t i e s and t o s e e t h a t r a t e s a r e j u s t and r e a s o n a b l e . S e c t i o n 69-3-330, T h i s C o u r t c a n n o t s u b s t i t u t e i t s judgment f o r t h a t o f MCA. Our f u n c t i o n i s t o d e t e r m i n e w h e t h e r t h e PSC a c t e d t h e PSC. a r b i t r a r i l y and u n r e a s o n a b l y w i t h o u t s u f f i c i e n t e v i d e n c e t o support its findings. v. Dept. , of Mountain S t a t e s Telephone Public Service Regulation 624 P.2d 4 8 1 , 38 S t . R e p . I n Montana-Dakota & Telegraph (1981), Mon t . 165. Utilities we remanded the case to t h e PSC w i t h i n s t r u c t i o n s t o : ". . . hold an a d d i t i o n a l h e a r i n g t o d e t e r m i n e t h e f o l l o w i n g : (1) i f r a t e o f r e t u r n is u s e d , a f a c t u a l b a s i s f o r t h e r a t e of r e t u r n a l l o w e d K n i f e R i v e r c o n s i d e r i n g i t s a s s e t s and r a t e o f r e t u r n on a marketplace b a s i s comparable t o o t h e r c o a l companies; o r ( 2 ) i n t h e event m a r k e t c o s t o f c o a l is u s e d , s u f f i c i e n t f a c t s t o s u p p o r t t h e PSC d e t e r m i n a t i o n o f the f a i r market p r i c e f o r coal." 632 P.2d a t 1 0 9 2 , 38 S t . R e p . a t 1 2 2 8 . W did e not hold that the PSC m u s t u s e a "market price" method i f a c o m p e t i t i v e m a r k e t p l a c e c a n b e e s t a b l i s h e d ; t h e c h o i c e o f m e t h o d s is l e f t t o t h e PSC. I n t h e i n s t a n t c a s e , t h e PSC c h o s e t o a p p l y a " r a t e o f r e t u r n " method i n a n e f f o r t t o d e t e r m i n e t h e r e a s o n a b l e n e s s of the p r i c e paid i n q u i r y is l i m i t e d by MPC for Western Energy t o determining whether coal. Our substantial evi- d e n c e was p r e s e n t e d t o s u p p o r t t h e P S C ' s d e c i s i o n o r i f t h e d e c i s i o n was u n j u s t o r a r b i t r a r y . On a p p e a l , MPC c o n t e n d s t h e P S C ' s r e l i a n c e upon t h e t e s t i m o n y o f Montana Consumer C o u n s e l w i t n e s s J o h n W. W i l s o n is erroneous. MPC c l a i m s W i l s o n ' s s t u d y is n o t a n a c c u r a t e s t u d y of the e n t i r e industry. earned 20 p e r c e n t since a 1974. Wilson e q u a l s 13.5 p e r c e n t . return Wilson found Western Energy on testified equity that capital the every year industry average MPC now claims W i l s o n c o l l e c t e d a r b i - trary data rebuttal its MC did P however, value does In industry. which of that not not accurately testimony challenge testimony. MPC, its o r i g i n a l position serted MPC's t e s t i m o n y . the reflect coal a t t h e PSC h e a r i n g , accuracy or in rebuttal, that the probative merely reas- t h e PSC s h o u l d r e l y on No f o u n d a t i o n o b j e c t i o n s were made by MPC c o n c e r n i n g t h e e x h i b i t s u s e d by W i l s o n . MPC i s e s s e n t i a l l y c h a l l e n g i n g W i l s o n ' s t e s t i m o n y f o r t h e f i r s t time on a p p e a l . i n v i t a t i o n t o judge The M C i s o f f e r i n g t h i s C o u r t a n P t h e c r e d i b i l i t y and w e i g h t o f e v i d e n c e w h i c h is n o t p a r t of factual t h e r e c o r d which MPC i t s e l f ignored, overlooked, or misinterpreted a t the administrative level--the has T h i s w e w i l l n o t do. PSC h e a r i n g . previously recognized strengthens the that administrative This Court limited judicial process. "Limited review review e n c o u r a g e s t h e f u l l and c o m p l e t e p r e s e n t a t i o n of e v i d e n c e t o t h e a g e n c y by t h e p a r t i c i p a n t s i n t h e a d m i n i s t r a t i v e p r o c e s s by p e n a l i z i n g t h o s e who a t t e m p t t o add new e v i d e n c e o r new l i n e s of argument a t t h e j u d i c i a l review l e v e l . " Dairy, Inc. v. Dept. Mont. 3 4 1 , 343-344, It of Business 553 p.2d Regulation Vita-Rich (1976), 170 9 8 0 , 982. is a n axiom of u t i l i t y l a w t h a t a u t i l i t y s e e k i n g increased r a t e s h a s t h e burden of reasonable. showing its claims are The MPC d i d n o t o b j e c t t o t h e f o u n d a t i o n o f t h e Consumer C o u n s e l ' s witness's exhibit. The PSC was e n t i t l e d t o b e l i e v e and a c c e p t t h e e v i d e n c e a s p r e s e n t e d by t h e Con- sumer C o u n s e l ' s w i t n e s s and t o r e j e c t t h e e v i d e n c e p r e s e n t e d by MPC. So l o n g a s t h e r e c o r d s u p p o r t s t h e d e c i s i o n , t h a t judgment must s t a n d . I t is n o t r e q u i r e d t h a t a person be knocked down by a g a l e b e f o r e h e knows w h i c h way t h e wind i s blowing. capable that All of being required is believed. that is In the the instant evidence case, is unlike Montana-Dakota U t i l i t i e s Co. v . B o l l i n g e r , s u p r a , t h e r e c o r d s u p p o r t s t h e d e c i s i o n made by t h e PSC. T h e r e was ample e v i - d e n c e p r e s e n t e d by Consumer C o u n s e l ' s w i t n e s s J o h n W. W i l s o n that Western t h a t of Energy profitability percent) (20 the average f o r t h e industry was above (13.5 p e r c e n t ) . The PSC c h o s e t o make t h e n e c e s s a r y a d j u s t m e n t s i n t h e amount t h a t M C was a l l o w e d t o p a s s on t o t h e r a t e p a y e r s . P MC cannot w a i t u n t i l appeal t o challenge t h e evidence P and t e s t i m o n y of t h e Consumer C o u n s e l . its burden of proof as to the MC did not s u s t a i n P order of the PSC being unlawful or unreasonable. We hold substantial guidelines that the evidence established and PSC's decision fully meets i n Montana-Dakota is the supported standards Utilities Co. by and v. Bollinger, supra. Af f i r m e d . \&bisiYa, Hon r a b l e J a m e s B. W h e e l i s , D i s t i c t Judge, s i t t i n g i n p a o f Mr. J u s t i c e D a n i e l J. S e a W e concur: Chief J u s t i c e \ Justices i n place Mr. Justice John Conway Harrison dissenting. I dissent. I have tried in vain to reason with my colleagues not to make what I view to be a further confusion in the law of utility regulation in the State of Montana. The result of the majority holding will, in my opinion, not only increase the cost of electricity to the consumers of Montana, but, in addition, increase the cost of coal to purchasers of Western energy which will in turn be passed on to the consumers. -- The economic result of the majority holding will force Montana Power to purchase its coal from more expensive sources and sell the 15 percent it contracted for with Western Energy to a better market. To so hold does not, in my opinion, make economic sense. Taking the uncontroverted facts presented to us, it is evident that Montana Power Company (MPC) studied our opinion in Montana-Dakota Utilities Co. v. Bollinger (1981), Mont . 632 P.2d 1086, 38 St.Rep. 1221, and decided that in cases where coal is purchased from a wholly-owned subsidiary, the steps necessary to make the purchase would be carefully adhered to, and that the holding of that opinion was controlling as to the proper method to be used by the Public Service Commission (PSC) in determining the methodology to be used. I believe the PSC misread our holding in arguing that we held in Bollinger (supra) that the "marketplace price of the coal" was controlling. we held was: "'As a matter of justice, it appears to the court that it might be better for the PSC to use the marketplace cost of coal approach, if it can obtain sufficient facts for its determination, rather than using the rate of return method with all its difficult theories and computations. While the PSC does have the right to choose the method followed, this court did not find a factual reason for the summary rejection of the marketplace cost of coal approach.'" (emphasis added) "We therefore, vacate the judgment of the District Court and remand the case to the PSC with instructions to hold additional hearings to determine the following: (1) if the rate of return is used, a factual for the rate of What I return allowed Knife River considering its assets and rate of return on a marketplace basis comparable to other coal companies; or in the event market cost of coal is used, sufficient facts to support the PSC determination of the fair market price for coal.'" While we did indicate by our language in Bollinger (supra) that is our opinion the "market price might be the better approach," we did not rule out the use of other methodology by the PSC. We noted that a parent's earnings in a subsidiary are improper if the utility earns "excessive profits" at the expense of the ratepayer. We further held that sales to other customers and "evidence of prices charged by other companies in the competitive area" are sufficient to establish the reasonableness of coal prices. Perhaps it was this latter language that caused the MPC to follow the market price approach in its presentation to the PSC believing, on the basis of Knife River case, that if such an approach was taken,their evidence would be so convincing the PSC would be found to be arbitrary if it arrived at a different holding. In my view, the evidence for the rate of return method was so weak this case should be reversed. It is apparent MPC believed that our holding in Knife River stated that it was prefera.ble to use the market price method because the record indicates that the company was aware that the PSC had expressed concern regarding the "captive coal" situation of Mpntana Electric Utilities. Therefore, MPC retained an independent firm, knowledgeable in the areas of coal supply and contracts, to secure for the Corette Plant at the lowest possible cost, a fuel supply that was available at the time when the existing contract was expiring. The appellant company specifically informed the PSC by letter of its intention to do so. Thereafter, they secured the services of an Arthur D. Little, Inc., who solicited some sixteen coal companies operating in the Montana and Wyoming area for bids for coal supply to the Corette Plant. An advertisement was placed in Coal Week, a coal industry publication, and this advertisement produced five additional requests for that information. bids were eventually received. Nine An analysis of the bid showed that the prices as of September 1, 1979, including transportation and utilitization costs, for the three lowest bids were as follows: Western Energy (Rosebud Mine), 0.753 per million BTU; Westmoreland Resources, Absarokee (Absaloka Mine), 0.897 per million BTU; ARC0 (Black Thunder Mine), 0.921 per million BTU. The remaining six bids ranged from 0.993 to 1.346 per million BTU. It is interesting to note that V7estmoreland's Absaloka Mine is closer to the Corette Plant than the lowest Western Energy's Rosebud mine. An additional factor considered by Montana Power was its desire to secure the coal supply for a ten-year period, and further analysis was required to determine how escalation clauses and increased transportation clauses would effect the contract prices over the ten-year period. The result of the analysis described by the independent reporter, Arthur Little, was that the cost levelized over a full contract period thus Mr. Little calculated a $0.40 per million BTU cost advantage for the Western Energy Coal. I find the Arthur D. Little report to be objective and conclusive evidence that competition existed, and that Western Energy appropriately received a contract as a result of its favorable contract offer. I also find that the evidence is unchallenged and should have formed the basis for the PSC's determination to recognize the appellant's Western Energy Coal purchase expense as fully recoverable. The Arthur D. Little study does not include the coal supply for Colstrip's Units I and I1 because that contract at that time had expired. There was testimony on the record that the Colstrip contract was negotiated jointly with Western Energy by the Puget Sound Power and Light Company and the MPC, as partners in ~olstrip I and 11. The price paid for that coal was subsequently recognized in Puget Sound's electrical rates, and therefore, Puget Sound negotiated with knowledge that its fuel expenses would be scrutinized -12- by its home state, Washington, regulators. In Washington, Puget Sound sought a price which it could later justify. As previously noted, Washington approved Puget Sound's coal purchases from Western Energy. The cost of the appellant Montana Power and Puget Sound for Colstrip is substantially below the competitive price at the Corette Plant, even before transportation and other expenses are considered. The Colstrip cost of $7.097 per ton compares favorably with the $8.757 Corette cost. This comparison, made for the purpose of independently verifying the reasonableness of the Colstrip Cost level, is, in my opinion, one of the strong points for Montana Power's position that it's claimed level of coal expense is fair to the Montana Power ratepayers. In addition, the record indicates, through the testimony of Mr. Burke, that Montana Power coal expense at Colstrip I and 11, as well as at Billings, had been accepted by the PSC in previous hearings in 1968, 1972, 1975, and 1978, as a result of rate proceedings in those years. Such facts are, in my opinion, indicative of the coal price at Colstrip. It is interesting to note that in those previous hearings regarding Pacific Power and Light, the expert of the Consumer Counsel, Dr. Wilson, was examined on the theory that he presented in this case by the consumer counsel and by the PSC, and in those instances the PSC did not accept his testimony. With this back- ground, it is understandable that the appellant, IIPC, choose not to cross-examine him because in those four cases the PSC had found his testimony unreliable or at least unconvincing. As it is above noted, Dr. Wilson has for some time been trying to sell the rate-of-return methodology as an expert witness here in Montana, and we noted in Knife River, supra, that such a method could be acceptable so long as the method did not produce "an unjust or arbitrary result" and that the reasonableness of the coal purchase expenses be based on "sufficient evidence." The PSC argues since MPC did not challenge the testimony of J.W. Wilson it gave them license to adopt that testimony without even -13- superficial scrutiny. Then the PSC asserts that their "substantial evidence" rule applied so the court cannot substitute its judgment for that of the PSC. I do not agree with that in view of the fact that there is, in my opinion, an arbitrary, capricious decision made by the PSC in adopting the testimony of J.W. Wilson. Dr. Wilson is the only witness that testified concerning the issue of earnings of other coal companies. This testimony is as follows: "As shown on page one of exhibit 22, (JW-3), the coal industry equity profits have averaged about 16 percent in this decade, with the exception of very high earnings rates in the three years immediately following the OPEC embargo. In November of 1973, the average earnings rates in the coal industry have been under 12 percent." He thereafter listed eight coal companies as "comparable coal industry earnings from 1970-1979." Those companies were Bates Manufacturing, Eastern Gas a.nd Fuel, Fulcom Seaboard, Kaiser Resources, Kaneb Services, North American Coal, Pittstown and Westmoreland Coal. As previously noted, the appellant, MPC, had contacted twenty-one coal companies in connection with the Corette coal contract that there was only one of the companies contacted by Montana Power on both lists, that is "Westmoreland." Even that is not a sufficient identity for the same company is listed on the Arthur Little, Inc. report as "Westmoreland Resources, Inc." which operates a mine in Big Horn County, Montana. All of the sixteen companies solicited by Arthur D. Little, Inc., were producing coal in Montana and Wyoming. None of the companies, except Westmoreland, if that is the same Westmoreland as the Westmoreland Resources, are listed as solicited by Arthur D. Little, are within the area of Montana and Wyoming. In comparing the testimony of Arthur D. Little, Inc., and Wilson, there appears to be inadequacies on the part of Dr. Wilson that should have drawn more attention from the PSC in evaluating his testimony. 1. According to Dr. Wilson, the Fulcom Seaboard showed a percentage of earnings from 1974 - 1978 averaging 30.8 percent, which far exceeds Western Energy's average for thosefiveyears by as much as 7.8 percent per year. In addition, Fulcom Seaboard's figure for 1979 was not used by Wilson and, therefore, it had no input into the 13.5 percent earning figure which PSC was going to allow Western Energy. 2. Next, the company given by Wilson called "Bates Manufacturing" was liquidated by 1979, and therefore has not had any impact on the "average" 13.1 percent selected by Wilson with a slight modification adopted by the Commission. 3. Wilson listed as an "average" number at the base of each column of his exhibit. This actually is an average of the averages of each company, and does not take into consideration any proper variables. cannot be, in my opinion, a true average. This Further, in distorting the figure, he left out Fulcom Seaboard, which was an unusually low figure and inserted. in its place Westmoreland Coal (1 percent) and Pittstown (8.6 percent) which disotrted the so-called average figures. Including leaving out Fulcom Seaboard, which had by far the best earnings, Wilson failed to mention Bridger Coal which had a 60 percent figure and the Pacific Minerals which had 37 percent, thereby leaving two companies with unreasonable low percentage earning figures and therefore arriving at a fixed coal company average of 13.1 percent, a figure which, in my opinion, is distorted. Had he included Bridger Coal and Pacific Minerals, there would have been a considerably higher change in his "average" figure. I find Dr. Wilson's testimony to be both arbitrary and discriminatory in an effort to get the PSC to accept his methodology and feel that no credible evidence was submitted to the record on rates of return on "comparable coal companies." As previously noted, I find that the PSC's posture in this matter is totally inconsistent with its prior actions with regard to the Pacific Power and Light Company and the MDU where it refused the very testimony that was given by Dr. Wilson in this -15- matter. In Knife River, supra, we allowed a return of 1-3.5 per- cent which is nearly identical to the rate of return of 13.45 percent allowed Montana Power on its utility operations. After our decision in Knife River, supra, the case was returned by the District Court to the PSC for them to consider the testimony on a competitive market methodology and stayed with their original opinion supporting Dr. Wilson. Last but not least, the PSC contends that Plontana Power had no right at this stage of the proceedings to challenge Dr. Wilson's comparisons for the first time. They claim that the MPC had a burden of contradicting Dr. Wilson's stud.y of comparable coal companies at the hearing, and, as it stands now, there is no evidence which can sufficiently rebut the testimony of Dr. Wilson. In pursuing the argument that Montana Power did not cross-examine Dr. Wilson at the hearing and is not estopped from attacking the credibility of his evidence,I would find that because the testimony of Dr. Wilson was so weak and was rebutted by the studies of Arthur D. Little, Inc., the evidence before the PSC lacked credibility and their decision to adopt his findings is both arbitrary and capricious. While the PSC cites Vita-Rich Dairy, Inc. v. Department of Business Regulation (1976), 170 Mont. 34L, 553 P.2d 980, for the authority that at the time at the judicial review level, the appellant, MPC was precluded from raising the issue for the first time, I do not believe that holding stands for a rule that a party cannot argue on appeal from a record that the testimony of the key witness is without substance. I would reverse the decision of the District Court and return the matter to the PSC for further hearings.

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