20090209_2477.pdf

DECISION MEMORANDUM 1
DECISION MEMORANDUM

TO: COMMISSIONER REDFORD
COMMISSIONER SMITH
COMMISSIONER KEMPTON
COMMISSION SECRETARY
COMMISSION STAFF

FROM: KRISTINE SASSER
DEPUTY ATTORNEY GENERAL

DATE: FEBRUARY 6, 2009

SUBJECT: IDAHO POWER’S REQUEST FOR ORAL ARGUMENT – COMPLAINT
FOR BREACH OF CONTRACT, CASE NO. IPC-E-08-20

BACKGROUND
On October 16, 2008, Idaho Power filed a Petition for Declaratory Order and Formal
Complaint for Breach of Contract against Glenns Ferry Cogeneration Partners, LTD (Glenns
Ferry). In its complaint, Idaho Power alleges that Glenns Ferry has permanently lost its host
(Idaho Fresh-Pak) and Glenns Ferry’s delivery of energy has been permanently curtailed. Given
this “material breach” of the parties’ Agreement, Idaho Power seeks a Commission Order
declaring that: (1) the Agreement is terminated; and (2) the utility is entitled to liquidated
damages under the Agreement of $11.15 million. Complaint at ¶¶ 19, 23.
On October 21, 2008, a summons was issued by the Commission notifying Glenns
Ferry that it had 21 days to respond to Idaho Power’s complaint. Idaho Power immediately
began filing discovery requests. On November 10, 2008, Glenns Ferry filed with the
Commission a Motion to Dismiss for Lack of Subject Matter Jurisdiction. Subsequently, on
November 14, 2008, Glenns Ferry filed a Motion to Stay Discovery.
On November 24, 2008, the parties filed a Joint Motion regarding scheduling and
discovery. The parties submitted that: (1) the complex nature of the allegations, law, and Glenns
Ferry’s claims warrant additional time for briefing; and (2) in consideration of Glenns Ferry’s
Motion to Dismiss, responses to discovery should be stayed until the Commission has ruled on
the issue of jurisdiction. On November 26, 2008, the Commission granted additional time for
DECISION MEMORANDUM 2
briefing and stayed answers to discovery filed by Idaho Power until such time as the
Commission rules on Glenns Ferry’s Motion to Dismiss. Order No. 30688.
REQUEST FOR ORAL ARGUMENT
Idaho Power filed its brief in opposition to Glenns Ferry’s Motion to Dismiss on
January 13, 2009. The Company simultaneously filed a Request for Oral Argument on the
limited issue of whether the Commission has subject matter jurisdiction over the complaint.
Glenns Ferry filed a reply brief on January 26, 2009. Glenns Ferry did not oppose Idaho
Power’s Motion for Oral Argument.
COMMISSION DECISION
Given the agreement of the parties, does the Commission wish to grant Idaho
Power’s request for oral argument on the limited issue of subject matter jurisdiction?

M:IPC-E-08-20_ks