concurring in part and dissenting in part:
I
I concur in the result of Part I of the Court’s opinion, but disagree with the majority’s conclusion that the I.C. § 61-629 standard of review, i.e., that the scope of review on appeal is “whether the commission has regularly pursued its authority,” is not the appropriate standard. The setting of intervenor attorney fees in a rate-making case is certainly a “ratemaking” matter. Those fees are incurred as part of the ratemaking proceeding, and the cost of them will ultimately be included in the utility’s overhead which will be part of the utility’s costs, which will affect the rates which the utility charges. The I.C. § 61-629 standard is clearly applicable. While I agree with the majority’s statement that the proper “construction of a statute is [a] matter of law for the judiciary,” once we determine the proper interpretation of a statute involving utility rate-making, such as the intervenor attorney fee statute, the application of that statute is a part of the ratemaking and oversight-supervisory process before the Idaho Public Utilities Commission, to which the I.C. § 61-629 standard is applicable.
II
I concur in Part II of the Court’s opinion which holds that the commission’s application of the statute to pre-July 1, 1985, effective date was not a retroactive application of the statute.
III
Since, as set out in Part I above, the appropriate standard on review, in my opinion, is “whether the commission has regularly pursued its authority,” I.C. § 61-629, I believe the Commission should be affirmed in its determination of the amount of attorney fees which it allowed.
Even if the Court were correct that the I.C. § 61-629 standard is not applicable, the Court does not explain how the commission erred in its determination of how much fees it would allow. The intervenor attorney fee statute, I.C. § 61-617A, states: “The commission may order any regulated ... utility to pay all or a portion of the costs of one or more of the parties for legal fees ... [or] costs____” The majority doesn’t even acknowledge that the statute gives the discretionary determination to the commission by the use of the word “may.” Nor does the Court make an abuse of discretion analysis. Rather, the majority *965opinion analyzes the statute as though it reads “shall,” not “may.”
The Court’s decision today is inconsistent with this Court’s interpretation of the same word “may” in attorney fee statutes applying to the courts. Our interpretation of I.C. § 12-121, prior to the implementation of I.R.C.P. 54(e), was that the trial courts were vested with discretion and this Court would not review that discretion regardless of whether the trial courts granted or denied attorney fees. The statute, I.C. § 67-617A, places the discretion to allow fees in full, in part, or not at all in the commission, not this Court, and accordingly I would affirm the commission’s orders entirely.
SHEPARD, C.J., concurs.