20250819Comments.pdf

RECEIVED
August 19, 2025
Andrew P. Moratzka(pro hac vice pending) IDAHO PUBLIC
[e-mail] UTILITIES COMMISSION
STOEL RIVES LLP
33 South 6th Street
Minneapolis, MN 55402
Telephone: [phone]
Facsimile: 612.373.8881
W. Christopher Pooser, ISB No. 5525
[e-mail]
Alaina Harrington, ISB No. 11879
[e-mail]
STOEL RIVES LLP
101 S. Capitol Boulevard, Suite 1900
Boise, ID 83702
Telephone: [phone]
Facsimile: 208.3 89.9040
Attorneys for Idaho Forest Group LLC
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION Case No. CIO-E-25-01
OF NORTHERN LIGHTS, INC. AND THE
CITY OF BONNERS FERRY FOR AN IDAHO FOREST GROUP LLC'S
ORDER APPROVING A SERVICE COMMENT
TERRITORY AGREEMENT BETWEEN
THE APPLICANTS
Idaho Forest Group LLC ("IFG") respectfully submits this formal written comment
pursuant to the Notice of Application and Notice of Modified Procedure, Order No. 36695, issued
by the Idaho Public Utilities Commission("Commission")on July 31,2025 (the"Notice"). In the
Notice, the Commission set the initial comment deadline as August 21, 2025, for parties to
comment on the joint application of Northern Lights, Inc. ("NLI") and the City of Bonners Ferry
("CBF," together with NLI, the "Applicants") for approval of a service territory agreement
pursuant to Idaho Code § 61-333 (the "Application"). IFG timely submits this written comment
in response to the relief sought in the Application.
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I. INTRODUCTION
The Application was filed on June 13, 2025, roughly 44 years after the Applicants entered
into the Service Agreement Pursuant to Idaho Code 61-333 ("Section 61-333 Service Agreement")
and roughly 25 years after the Idaho Legislature met and approved revisions to the Idaho Electric
Supplier Stabilization Act ("ESSA"). Despite this significant passage of time, the Applicants
concede the most recent depiction of their respective service territory boundaries is that contained
within an undescribed and largely illegible map that was attached to the Section 61-333 Service
Agreement,which map has been further modified in an undescribed manner. Application,para. 2,
3 (citing Ex. A to the Application). To address the illegibility and incomplete nature of the
Applicants' modifications to their respective service territories—modifications that have not ever
been approved by the Commission—the Applicants seek approval of the Section 61-333 Service
Agreement conditioned on the submission of an updated service territory map within 24 months
of Commission approval. Application, para. 6. The Application is devoid of reference to the fact
that CBF has and continues to assert, in litigation now on appeal, that the Section 61-333 Service
Agreement does not need Commission approval. See Idaho Forest Group LLC v. City of Bonners
Ferry, Case No. CV11-23-0271 (Boundary County District Court) ("Rates and Service
Litigation"). In fact, IFG did not receive service of, or even a courtesy copy of, the Application
even though counsel for CBF in the Application is the same counsel serving for CBF in the Rates
and Service Litigation. Nor does the Application adequately describe the scope of CBF's proposed
service outside of its municipal boundaries for the Commission to assess whether the Applicants
have been complying with the ESSA or if the Commission's approval of the Application would
overlook prior violations of the ESSA. Given the significant outstanding legal issues, IFG
respectfully asserts that any decision be postponed until the Idaho Supreme Court has had the
opportunity to rule on ESSA provisions relevant to the Application. Furthermore, and to resolve
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the myriad factual issues, IFG respectfully requests this matter be set for technical hearing to
further develop the record.
II. FACTUAL BACKGROUND
IFG commenced the Rates and Service Litigation on June 29, 2023, asserting various
causes of action, including a just and reasonable rates violation under Idaho Code § 50-325, and a
violation of Idaho Code § 50-1048 resulting from CBF's imposition of a 5% general fund transfer
fee that was charged to all customers above and beyond CBF's cost of providing electric service
("Initial Complaint").' CBF moved to dismiss various components of IFG's Initial Complaint. In
denying CBF's motion to dismiss with respect to the 5% general fund transfer fee, the Boundary
County District Court preliminarily determined that CBF could not force IFG into taking electric
service and that"IFG's decision to receive electric service from the City is a privilege,not a right."
Declaration of Andrew P. Moratzka("Moratzka Decl.") at Ex. A, pg. 10.
In response, IFG subsequently sought (and was granted) leave to amend the Initial
Complaint to add a cause of action for interpretation of the relevant provisions of the ESSA and
declaratory judgment on CBF's exclusive right to provide electric service("Amended Complaint).
Moratzka Decl. at Ex. B, pg. 2. On March 20, CBF moved to dismiss the ESSA and declaratory
judgment claims in the Amended Complaint. Id. In support of this motion, CBF stated:
The plain language of the ESSA does not require the City to obtain
IPUC approval before serving a customer. Indeed, the IPUC does
not even have authority over municipal electric utilities like the one
the City operates.
' See,Hill-VUMobile Home Park v. City of Pocatello, 162 Idaho 588,402 P.3d 1041 (2017)(citing Idaho
Code§ 50-1048 to support a conclusion that a similar general fund transfer fee assessed by the City of Pocatello was
unlawful).
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Moratzka Decl. at Ex. C, pg. 6 (emphasis in original).2 After hearing arguments from the parties,
the Boundary County District Court agreed with CBF and concluded:
As a matter of law that I.C. § 61-332B prohibits another electric
supplier from supplying or furnishing electric service to IFG,
because IFG is currently, and has previously been lawfully
connected to the electric service facilities of the City and that I.C. §
61-333 does not apply.
Moratzka Decl. at Ex. B, pg. 13. (emphasis added). To be clear, IFG disputes this conclusion.
On June 5, 2025, IFG timely appealed the Boundary County District Court's amended
judgment dated April 25, 2025, commencing Idaho Supreme Court Docket No. 52965-2025.
Moratzka Decl. at Ex. D. Among other issues raised on appeal, IFG specifically appealed the
Boundary County District Court's granting of CBF's "motion to dismiss on Appellant's cause of
action for declaratory relief(re: Appellant's ability to contract with other electric suppliers)" and,
relatedly, whether the Boundary County District Court erred in refusing to hear IFG's claims for
breach of municipal authority under Idaho Code § 50-1048 and unconstitutional taking. Moratzka
Decl. at Ex.D,pg. 2. On June 12,2025,the Idaho Supreme Court Clerk issued a suspension notice
to allow for the court reporter to file a notice of transcript deposit with the Boundary County
District Court. Moratzka Decl. at Ex. E.3 One day later,the Applicants submitted the Application
to the Commission. According to the Application, and notwithstanding CBF's legal arguments in
the Rates and Service Litigation,the Applicants are seeking approval of the Section 61-333 Service
Agreement "to fulfill the requirements of Idaho Code § 61-333." Application, para. 6.
Overlooking the fact that the Application seeks relief that may impact (or may be designed to
2 Citing, Idaho Code §§ 61-101, 61-129, 61-119, and Kiefer v. City of Idaho Falls, 289 P. 81, 82 (1930).
Curiously, these provisions cited by CBF in Idaho Code are outside of the ESSA in supporting this statement. As
discussed in greater detail below,CBF is incorrect,which the Applicants concede in paragraph 6 of the Application.
3 Subsequently, the Idaho Supreme Court issued an order on June 17, 2025, setting August 19, 2025, as the
Reporter's lodging date and September 23, 2025, as the due date for the Clerk's Record and Reporter's transcripts.
Moratzka Decl. at Ex.F.
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impact) the pending appeal regarding the Rates and Service Litigation, counsel for the Applicants
did not, and have not, provided service or courtesy copies of the Application to either IFG, its
representatives, or its counsel. Without knowledge of the Application, and in response to a
Boundary County District Court order regarding fees and costs, IFG filed an amended notice of
appeal to the Idaho Supreme Court. Moratzka Decl. Ex. G.4
III. ANALYSIS
A. The Commission Should Postpone Taking Action on the Application Given the
Significant Legal Issues on Appeal.
The purpose of the ESSA is
to promote harmony among and between electric suppliers
furnishing electricity within the state of Idaho, prohibit the
"pirating" of consumers of another electric supplier, discourage
duplication of electric facilities, actively supervise certain conduct
of electric suppliers as it relates to this act, and stabilize the
territories and consumers serviced with electricity by such electric
suppliers.
Idaho Code § 61-332(2). Relevant here,there are two other provisions of the ESSA at issue. First,
the ESSA is clear that "No electric supplier shall supply or furnish electric service to any electric
service entrance that is then or had at any time previously been lawfully connected for electric
service to facilities of another electric supplier except as provided in this act." Idaho Code § 61-
332B. Second, Idaho law provides a path for a customer to be "lawfully connected"to an electric
supplier that is providing service outside of that electric supplier's service territory—that path is
Commission review and approval of a service territory agreement. Idaho Code § 61-333(1).
It is clear that both CBF and NLI are subject to the ESSA. After all, the term "electric
supplier"is defined to include cooperatives and municipalities, such as CBF and NLI. Idaho Code
4 The timeframes set out in Exhibit F for the Clerk's Record and Reporter's Transcripts Due Date remain
unchanged.
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§ 61-332A(2), (3), and (4). It should also be clear that CBF's assumed service territory is limited
to its municipal boundary. For example, according to records maintained by the Commission, all
of Boundary County Idaho is within the service territory of NLI, save except the municipality of
CBF.S According to records produced in the Rates and Service Litigation,the municipal boundary
of CBF is quite limited, appears to be much smaller than the Section 61-333 Service Agreement
represents, and almost certainly doesn't cover Moyie Springs, Idaho, where IFG's Moyie Springs
Mill is located. Moratzka Decl. at Ex. H. Therefore, in order for IFG and other customers outside
of CBF's municipal boundary to be "lawfully connected"to CBF, the Commission must approve
the Section 61-333 Service Agreement.
IFG respectfully asserts that,because the Commission has not approved the 61-333 Service
Agreement, it and other customers outside of CBF's municipal boundary are not "lawfully
connected" as that term is used in Idaho Code § 61-332B and, therefore, those customers have a
choice in electric provider. IFG acknowledges that CBF disputes this interpretation of the ESSA,
that the Boundary County District Court sided with CBF on this dispute, and that this issue is
presently on appeal before the Idaho Supreme Court. IFG also notes that the Applicants concede
that it may take them up to 24 months to finalize the content of their Application. Application,
para. 4. Given the unresolved legal issue presently on appeal, and the additional work the
Applicants admit remains, IFG requests that the Commission refrain from taking any action until
this dispute is resolved by the Idaho Supreme Court.
B. The Commission Lacks Sufficient Information to Approve the Application.
Once the legal issues have been resolved by the Idaho Supreme Court,or if the Commission
determines that the aforementioned legal issues are sufficiently resolved to begin processing the
5 See https://puc.idaho.gov/Fiteroom/PublicFiles/maps/clecoop.pdf.
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Application, IFG emphasizes that further record development is critical because the record at this
time is woefully inadequate to warrant approval of the Application. Idaho law specifically
provides that"The commission shall approve such contracts only upon finding that the allocation
of territories or consumers is in conformance with the provisions and purposes of this act." Idaho
Code § 61-333(1)(emphasis added). Here,the Section 61-333 Service Agreement is over 40 years
old. Furthermore, the maps included are illegible and, according to the Applicants, not
representative of the alleged existing service territory boundaries. Indeed,the Applicants state that
they "intend to develop an updated map showing their respective service areas as they
currently exist,along with a list of existing service points that are exceptions to the service areas."
Application, para. 4 (emphasis added). Absent the Applicants providing this information at the
outset and as part of the Application, there does not appear to be any basis for the Commission to
determine either the Section 61-333 Service Agreement or the Applicants' practices over the past
44 years have been in conformance with the provisions and purposes of the ESSA. Therefore, the
Commission should set this matter on for a technical hearing to allow for record development on
the following items: (1)the precise scope and geographical boundaries of the service territory NLI
proposes to cede to CBF; (2) a full listing of customers that are impacted by the Section 61-333
Service Agreement and relief sought in the Application; (3) a detailed one-line diagram of the
Applicants' electric service systems in Boundary County, including facilities owned and operated
by other parties, including Bonneville Power Administration; (4) future planned investments of
NLI and CBF, respectively, to provide service and maintain reliability in Boundary County; and
(5) all other relevant information for the Commission to adequately reach its conclusion as to
whether the Application is in conformance with the provisions and purposes of the ESSA.
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IV. CONCLUSION
The relief sought in the Application appears to be a collateral attack on a pending appeal
now before the Idaho Supreme Court, filed without sufficient information for the Commission to
conduct the analysis required under applicable law. Given the significant outstanding legal issues,
IFG respectfully asserts that any decision be postponed until the Idaho Supreme Court has had the
opportunity to rule on ESSA provisions relevant to the Application. Furthermore, once the legal
issues have been resolved by the Idaho Supreme Court, or if the Commission determines that the
legal issues are sufficiently resolved to begin processing the Application,IFG respectfully requests
this matter be set for technical hearing to resolve the myriad factual issues identified in this
comment.
DATED: August 19, 2025 STOEL RIVES LLP
By: /s/W. Christopher Pooser
W. Christopher Pooser
Andrew P. Moratzka
Attorneys for Idaho Forest Group LLC
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 19, 2025, I served a true and correct copy of the
IDAHO FOREST GROUP LLC'S COMMENT upon the following by electronic mail only:
Commission Secretary
Idaho Public Utilities Commission
472 W. Washington Street
Boise, ID 83702
[e-mail]
Susan P. Weeks
James, Vernon, & Weeks, P.A.
1626 Lincoln Way
Coeur d'Alene, ID 83834
[e-mail]
Tyler R. Whitney
Cable Huston LLP
1455 SW Broadway, Ste 1500
Portland, OR 97201-3412
[e-mail]
/s/W. Christopher Pooser
W. Christopher Pooser
150053409.8 0026695-00016
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