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DECISION MEMORANDUM TO: COMMISSIONER KJELLANDER COMMISSIONER SMITH COMMISSIONER HANSEN JEAN JEWELL RON LAW LOU ANN WESTERFIELD BILL EASTLAKE DON HOWELL RANDY LOBB DAVE SCHUNKE RICK STERLING TONYA CLARK BEV BARKER GENE FADNESS WORKING FILE FROM: SCOTT WOODBURY DATE: JUNE 4, 2002 RE: CASE NO. IPC-E-01-42 (Idaho Power) AFFILIATE CONTRACT WITH GARNET ENERGY LLC MOTION FOR ISSUANCE OF SUPBOENA DUCES TECUM On May 31, 2002, intervenor Idaho Rural Council/Citizens for Responsible Land Use (IRC/CFRLU or intervenor) filed a Motion with the Idaho Public Utilities Commission (Commission) for the issuance of a subpoena duces tecum requiring the attendance of Mr. Ken Eklund, Director of the Energy Division of the Idaho Department of Water Resources, at the hearing scheduled in this matter for July 23, 24, and 26, 2002. As represented in its Motion, IRC/CFRLU intends to present the testimony of Mr. Eklund as a part of its case in chief. Mr. Eklund is represented as possessing knowledge relevant to issues identified in the Commission's Notice of Issue Identification, including DSM programs and resource alternatives available to Idaho Power Company for implementation or acquisition in the state of Idaho. Mr. Eklund, the intervenor contends, is arguably one of the states more knowledgeable individuals in this area and will provide the Commission with valuable insight into available DSM and alternative resource options and the effect they would have on reducing Idaho Power's peak hour demand; the primary basis identified by Idaho Power as justification for building Garnet. Mr. Eklund is also represented as being in possession of notes, memoranda and other documents showing the relative costs of implementing or acquiring these programs and resources and the fact that these DSM options have been available to Idaho Power for years. Specifically, IRC/CFRLU moves the Commission for issuance of a subpoena duces tecum containing, essentially the following language: You are commanded to bring with you the following documents and items: Any and all studies, reports, memoranda, analyses, evaluations, telephone logs, notes, charts, graphs, tapes, electronic recordings, photographs, minutes, or any other written items that pertain to the availability of demand side management (DSM) or alternative energy resources within Idaho Power Company's service territory, or that pertain to communications, whether through meetings, mail, e-mail, telephone, or any other form of communication, you have had with Idaho Power Company regarding such DSM or alternative resources. Rule 226 of the Commission's Rules of Procedure provides that "upon a Motion in writing" the Commission may issue subpoenas "requiring the attendance of a witness from anyplace in Idaho" and for the "production of documents from anyplace in Idaho." IRC/CFRLU notes that Mr. Eklund is a State of Idaho employee and the documentation sought by this subpoena duces tecum constitutes "public records," pursuant to Title 9, Chapter 3 of the Idaho Code. The intervenor offers the following procedural suggestions for the Commission's consideration. The Commission could simply issue a subpoena to Mr. Eklund to appear and testify at the hearing and present as exhibits, whatever relevant written documentation at that time. Any party who so desired, could take a deposition of Mr. Eklund prior to the hearing. In the alternative, the intervenor suggests that the Commission could issue a subpoena requiring Mr. Eklund to prefile written testimony and appear at the hearing. The other parties would then have a normal opportunity to rebut and/or cross-examine Mr. Eklund. Under this alternative, IRC/CFRLU, as the party who is calling him as a witness, could first present questions to Mr. Eklund in writing, who would then provide his written answers to the intervenor. The questions and answers would then be filed in the customary format prescribed by the Commission's Rules of Procedure. Given the brief time remaining prior to intervenor prefile, IRC/CFRLU requests, pursuant to Rule 256 of the Commission's Rules of Procedure, that procedure on this Motion be expedited. IRC/CFRLU moves that any party who wishes to oppose the Motion do so no later than Wednesday, June 5, 2002; IRC/CFRLU would file a response no later than Friday, June 7, 2002; and the Commission could issue an Order by Monday, June 10, 2002. Counsel for IRC/CFRLU represents that it has provided actual notice of its Motion to at least one representative of every party to this proceeding, by either telephone call or personal delivery or both, as required pursuant to Rule 256. Commission Decision Intervenor IRC/CFRLU has filed a Motion for issuance of subpoena duces tecum requiring the attendance of Mr. Ken Eklund, Director of the Energy Division of the Idaho Department of Water Resources at the hearing scheduled in this matter for July 23, 24 and 26, 2002. IRC/CFRLU also suggests an alternative scenario which would permit the prefile of written testimony by Mr. Eklund. How does the Commission wish to proceed in this matter? Scott Woodbury vld/M:IPCE0142_sw3