specially concurring:
I concur in the result reached by the Court but arrive at that result differently.
Although the interpretation of contracts does not, as a general rule, fall within the IPUC’s jurisdiction, this Court has recognized an exception where the parties have agreed to submit a dispute involving contract interpretation to the IPUC. Afton IV, 111 Idaho at 929, 729 P.2d at 404, citing Bunker Hill Co. v. Washington Water Power Co., 98 Idaho 249, 252, 561 P.2d 391, 394 (1977).
The Agreement between Cogeneration and Idaho Power provides, at paragraph 21.1, as follows:
All disputes relating to or arising under this Agreement, including, but not limited to, the interpretation of the terms and conditions of this Agreement, will be submitted to the Commission for resolution.
If the IPUC had merely interpreted the force majeure clause in this case I believe it would have had jurisdiction to do so based upon the above exception to the limitation on the IPUC’s jurisdiction to interpret contracts.
However, I agree with the Court’s opinion that the IPUC went beyond the interpretation of a contract by modifying the timing of the security requirement without making the finding that such a modification was necessary to protect the public interest. Thus, the IPUC had no jurisdiction to enter an order postponing the posting of the second installment to May 1,1995, and it was error for the district court to find that Cogeneration’s noncompliance with that order was a material breach. I therefore concur in the result reached by the Court.