20260908Reply to Avista Reply Comments to Reconsideration Order No. 37106.pdf

RECE IVED
September 08, 2026
IDAHO PL BLIC
UTILITIES COMMISSION
1 Peter J. Richardson
515 N. 271h Street
2 Boise, Idaho 83702
3 [phone] Office
[phone] Mobile
4 petergrichardsonadams.coin
5
6 BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
7
8 IN THE MATTER OF AVISTA CASE No.: AVU-E-25-15
9 CORPORATION'S APPLICATION FOR
APPROVAL OF THE 2026 WILDFIRE
10 MITIGATION PLAN POTLATCHDELTIC FOREST HOLDINGS,
LLC'S REPLY TO AVISTA
11 CORPORATION'S REPLY COMMENTS T
12 RECONSIDERATION ORDER NO. 37106
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14
I.
15 INTRODUCTION AND BACKGROUND
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On August 31, 2026, Avista Corporation("Avista") filed its"Reply Comments to
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Reconsideration Order No. 37106." Order No. 37106 was issued by the Idaho Public Utilities
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19 Commission("Commission") on July 28, 2026.1 That order provides PotlatchDeltic Forest
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24 ' Although Order 37106 provides for Avista to file"responsive comments,"the Company labeled its pleading
"Reply Comments." To avoid confusion PotlatchDeltic's instant pleading is labeled"Reply Comments"as Order
25 Nol 37106 instructed.
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S REPLY TO AVISTA CORPORATION'S
27 REPLY COMMENTS TO RECONSIDERATION ORDER 37106 - IPUC DOCKET NO. AVU-
E-25-15
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1 Holdings, LLC ("PotlatchDeltic") with seven days in which to lodge these Reply Comments.Z
2 These Reply Comments are herein lodged in response to Order No. 37106.
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II.
4 AVISTA MISSTATES THE APPLICABLE LEGAL STANDARD AND
MISCHARACTERIZES POTLATCHDELTIC'S PETITION FOR RECONSIDERATION
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6 Avista opens the "Legal Standards" section of its Reply Comments with the incorrect
7 statement that:
8 PotlatchDeltic asserts that its Petition for Reconsideration("Petition") is "uncontested
9 and unchallenged"because neither Avista nor Commission Staff filed an answer within
seven (7) days of filing it Petition. That argument both misinterprets the Commission's
10 Rule of Procedure and misstates the Commission's order granting reconsideration.3
11 Avista's mischaracterizes PotlatchDeltic's pleading on this issue by stating that it was an
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"assertion" and an "argument." PotlatchDeltic did not have to "assert"or make an"ar ug ment"
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14 that its Petition for Reconsideration(Petition) is "uncontested and unchallenged" -- rather than
15 an `assertion' or `argument' on this point, PotlatchDeltic was simply observing an uncontested
16 fact that:
17 Its Petition is uncontested and unchallenged, no answers to its Petition have been lodged,
18 and the time for such answers has long ago lapsed.
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2 As the seventh day falls on a legal holiday,these comments are lodged on the next business day.
25 s Avista's August 31,2026,Reply Comments at p.4. Emphasis provided.
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S REPLY TO AVISTA CORPORATION'S
27 REPLY COMMENTS TO RECONSIDERATION ORDER 37106 - IPUC DOCKET NO. AVU-
E-25-15
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I It is not an argument and it is not an assertion. PotlatchDeltic's Petition for Reconsideration was
2 uncontested and unchallenged at that time and currently remains uncontested and unchallenged
3
by Avista.'
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5
At the same time, Avista readily admits, without explanation, that it failed to answer
6 PotlatchDeltic's Petition for Reconsideration. It does not ask for leave to file a response out-of-
7 time but rather disparages the Commission's rules by simply marching forward as if this
8 Commission's Rule of Procedure do not apply to it. Such conceit should not be tolerated—the
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Commission's rules serve a purpose and Avista is not immune from compliance with those rules.
10
Rule 331.05 of the Commission's Rules of Procedure provides that:
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12 Answers to petitions for reconsideration(pleadings that disagree with a petition for
reconsideration, but do not ask for affirmative relief from the Commission's orders)must
13 be filed' according to the procedures for cross-petitions for reconsideration.
14 Rule 331.02 "Cross-Petitions for Reconsideration"provides that:
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Within seven(7) days after any person has petitioned for reconsideration, any other
16 person may cross-petition for reconsideration in response to any issues raised in the
17 petition for reconsideration.
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The rule is unambiguous and prescriptive. Avista's answer to PotlatchDeltic's Petition for
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20 Reconsideration was due to be filed on July 7, 2026. Rule 331 provides that timely answers
21 "must"be filed within seven days. There are no exceptions contemplated in the rule. Even if the
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24 a Just a couple of days ago Staff filed an out-of-time response challenging limited provisions in PotlatchDeltic' s
Petition for Reconsideration which is subject to a pending motion to strike as being an out-of-time pleading.
25 5 Underscoring provided,parenthetical in original.
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S REPLY TO AVISTA CORPORATION'S
27 REPLY COMMENTS TO RECONSIDERATION ORDER 37106 - IPUC DOCKET NO. AVU-
E-25-15
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I Rule did allow for an excused late filing of answers, in this instance Avista has offered no
2 explanation, excuse or apology for imposing its out-of-time pleading on the Commission and the
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other parties to this case.
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5
Avista muddies the waters by mistakenly referring the Commission to its rules governing
6 complaints by observing that:
7 Further,pursuant to Rule 57(b), "the complainant or petitioner must offer evidence of its
allegations regardless of whether the complaint or petition is answered or denied."6
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9 The substantive requirement that the "petitioner must offer evidence of its allegations" is not
10 applicable to petitions for reconsideration, which are governed by separate rules specific to
11 reconsideration petitions. There is no need to reference the general rule (Rule 57) on answers to
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complaints/petitions when there is an applicable and very specific rule addressing answers to
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14 petitions for reconsideration(Rule 331). Although Avista's reliance on Rule 57 is misplaced, it
15 fails to comply even with that rule's more relaxed approach to late filed answers. Rule 57 does
16 permit late filed answers if they are made with"good cause." However,Avista does not make ain
17 offer of a showing of"good cause" for its failure to answer PotlatchDeltic's Petition for
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Reconsideration. That rule (Rule 57) also precludes Avista from asserting any affirmative
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20 defenses. Rule 57(b), in its entirety, provides that:
21 A parry that fails to answer a complaint or petition within the prescribed time will be
treated as generally denying the allegations of the complaint or petition and will be
22 precluded except for good cause shown from setting up M affirmative defense in the
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24
25 6 Avista Reply Comments at p.4.
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S REPLY TO AVISTA CORPORATION'S
27 REPLY COMMENTS TO RECONSIDERATION ORDER 37106 - IPUC DOCKET NO. AVU-
E-25-15
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I proceeding. In these cases,the Commission may proceed with the matter solely upon the
issues set forth in the complaint or petitions. The complainant or petitioner must offer
2 evidence of its allegations regardless of whether the complaint or petition is unanswered
3 or denied.'
4 Avista has made no offer of a showing of"good cause" as required by Rule 57. Therefore, even
5 if Rule 57 applied to this proceeding, which it does not, the Commission will have to strike all of
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Avista's affirmative defenses that are raised in its Reply Comments.
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8
Furthermore, should Rule 57 be deemed applicable, PotlatchDeltic's Petition for
9 Reconsideration is compliant in that it already contains multiple offers of evidence of its
10 allegations pertaining to Avista's incomplete and flawed Wildfire Mitigation Plan("WMP").
11 PotlatchDeltic offered to provide evidence as to the following three categories of fatal flaws in
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Avista's WMP.
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14 First. The Commission lacks jurisdiction to approve a WMP primarily for the benefit of
15 Washington State residents. Doing so violates the U.S. and Idaho Constitutions both in terms of
16 lack of due process but also in terms of the extra jurisdictional reach of Avista's WMP. Avista's
17 WMP burdens Idaho residents with reduced access to legal redress for wrongfully ignited
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wildfires while benefiting Washington State residents who enjoy almost all of Avista's wildfire
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mitigation measures. Notably, Avista does not have immunity in Washington State, which
21 means it has an ongoing incentive to invest resources directed at wildfire mitigation there,
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25 7 Emphasis provided.
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S REPLY TO AVISTA CORPORATION'S
27 REPLY COMMENTS TO RECONSIDERATION ORDER 37106 - IPUC DOCKET NO. AVU-
E-25-15
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1 instead of in jurisdictions where it has been granted immunity—such as Idaho. The Commission
2 has the opportunity to hold Avista accountable by only approving a WMP that includes
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appropriate mitigation commitments directed at the State of Idaho.
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5 Second. The Commission abrogated its obligation to incorporate the comments of the
6 State Forester.
7 Third. The Commission ignored uncontested competent evidence as to the
8 unreasonableness of Avista's WMP.
9
Because PotlatchDeltic's Petition for Reconsideration is uncontested by Avista and
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11 because Avista has not even made an offer of a showing of good cause for its failure to respond-
12 it is estopped from challenging any of the assertions and conclusions contained in
13 PotlatchDeltic's Petition for Reconsideration.
14 Despite having been handed the opportunity to, once again, respond to PotlatchDeltic's
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Petition for Reconsideration Avista remains largely silent. Avista makes no attempt to challenge
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17 any of the three major flaws identified in PotlatchDeltic's Petition for Reconsideration that are
18 outlined above. It is black letter law that the failure to respond to assertions and failure to timelti
19 assert one's rights constitute a forfeiture of the ability to do so. The United States Supreme
20 Court eloquently explained the rule thusly:
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26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S REPLY TO AVISTA CORPORATION'S
27 REPLY COMMENTS TO RECONSIDERATION ORDER 37106 - IPUC DOCKET NO. AVU-
E-25-15
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I "[n]o procedural principle is more familiar to this Court than that a ... right may be
forfeited in criminal as well as civil cases by the failure to make timely assertion of the
2 right before a tribunal having jurisdiction to determine it.8
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If a litigant believes that an error has occurred (to his detriment) during a federal judicial
4 proceeding, he must object in order to preserve the issue. If he fails to do so in a timely
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manner, his claim for relief from the error is forfeited.'
6 The Idaho Supreme Court has similarly ruled that failure to respond equates to forfeiture of the
7 claim.10 Avista has therefore surrendered any objections it may have to PotlatchDeltic's Petitioll
8 for Reconsideration. But for Staff s very limited objections, which are the subject of a separate
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Motion to Strike filed concurrently with this Reply, PotlatchDeltic's Pettion for Reconsideration
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11 remains intact, unchallenged and unassailed.
12 III
AVISTA STILL FAILS TO MAKE ANY OFFER OF SHOWING THAT THE STATE
13 FORESTER'S COMMENTS ARE NOT JUST AND NOT REASONABLE AND NOT IN THE
PUBLIC INTEREST
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15 The Wildfire Standard of Care Act requires the Commission to incorporate the
16 recommendations of the state Forester in its decision, unless those recommendations are not
17 "just, reasonable and in the public interest."11 If the Commission determines those
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recommendations fail to meet that standard,the Commission must explain its reasoning in its
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order.12 The Commission and Avista have failed to do either throughout these proceedings.
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23 s Pickett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266(2009).
9 Yakus v.United States,321 U.S.414,444,64 S.Ct.660, 88 L.Ed. 834(1944).
24 10 State ex. Rel. Lance v. Hobby Horse, 129 Idaho 565(1996).
11 Idaho Code Section 61-1804(3).
25 12 Id.
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S REPLY TO AVISTA CORPORATION'S
27 REPLY COMMENTS TO RECONSIDERATION ORDER 37106 - IPUC DOCKET NO. AVU-
E-25-15
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I Avista's Reply Comments makes no reference to the standard(just,reasonable and in the
2 public interest)that is applicable to the Commission should it choose to ignore or reject
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comments made by the State Forester. In contrast, Bennett Lumber and PotlatchDeltic both
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5 address the requirements of the law. Avista's suggestion that IDL's late-filed recommendations
6 should be disregarded altogether is not enough."13 Although given another chance, Avista has
7 still made no offer of a showing as to why the State Forester's comments have been ignored or
8 how they are unjust, unreasonable and not in the public interest. Instead Avista minimizes the
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role the State Forester plays in the evaluation of its WMP by asserting that:
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[B]ennett Lumber appears to take the position that any recommendation advanced by
11 IDL14 must be incorporated into Avista's WMP to satisfy the WSCA requirement. That
12 is not the standard established by Idaho Code 61-1803, which requires a utility to develop
and implement a wildfire mitigation plan that balances wildfire risk reduction with
13 customer costs and system reliability. The statute15 does not require adoption of every
14 recommendation offered by interested stakeholders...16
15 But the statute does require all of the recommendations made by the State Forester to be adopted
16 by the Commission absent an affirmative finding that said recommendations are not just, not
17 reasonable and not in the public interest.
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Avista is wrong. Recommendations by the State Forester are required to be included in
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20 its WMP. Failure to do so requires that the Commission reject the plan. Avista simply dismisses
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13 Avista Reply Comments at p. 7.
24 14 IDL is the State Forester.
15 The Wildfire Standard of Care Act.
25 16 Avista Reply Comments,August 31,2026,at p.6.
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S REPLY TO AVISTA CORPORATION'S
27 REPLY COMMENTS TO RECONSIDERATION ORDER 37106 - IPUC DOCKET NO. AVU-
E-25-15
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I the application of Section 61-1804(3) with the incredible statement that the statute does not mean
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what it says.
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V.
4 PRAYER FOR RELIEF
5 WHEREFORE, for the reasons stated above, PotlatchDeltic Forest Holdings, LLC
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respectfully requests the Commission issue its order on reconsideration rejecting Avista's WMP,
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8 without prejudice to allow it to go back to the drawing board and craft, with full stakeholder
9 input a workable and legally tenable WMP. Furthermore, nothing in Avista's Reply Comments
10 alters the conclusion that Avista's WMP should be rejected by the Commission for the reasons
11 set forth in PotlatchDeltic's Petition for Reconsideration and as elaborated herein.
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Dated this 8th day of September 2026.
13
Peter J. Richardson ISB # 3195
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15
16 1 HEREBY CERTIFY that on the 8th day of September 2026, a true and correct copy of the
17 within and foregoing POTLATCHDELTIC FOREST HOLDINGS, LLC'S REPLY TO AVIST
CORPORATION'S REPLY COMMENTS TO RECONSIDERATION ORDER NO. 37106 IN
18 CASE NO. AVU-E-25-15 was served by electronic copy only,to:
19
Monica Barrios-Sanchez
20 Commission Secretary
21 Idaho Public Utilities Commission
Monica.barriossanchez rni puc.idaho. ov
22 secretMna,puc.idaho.gov
23 Jeff Loll
24 Idaho Public Utilities Commission
jeff.loll(&puc.idaho.gov
25
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S REPLY TO AVISTA CORPORATION'S
27 REPLY COMMENTS TO RECONSIDERATION ORDER 37106 - IPUC DOCKET NO. AVU-
E-25-15
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1
Anni Glogovac
2 Avista Corporation
3 [e-mail]
Avistadockets cr,avistacorp.com
4
Elizabeth Andrews
5 Sr. Mgr. Revenue Requirements
6 Avista Corporation
Liz.andrews a avistacoip.com
7
John A. Richards
8 J.J. Winters
9 Idaho Department of Lands
winters(,idl.idaho.gov
10 jrichards(caidl.idaho.gov
11 Tara Malek
12 Bennett Lumber, et al.
Simth& Malek, PLLC
13 service ammalekattorneys.com
14 By.
15 Peter J. Richardsongle4���
ISB # 3195
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26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S REPLY TO AVISTA CORPORATION'S
27 REPLY COMMENTS TO RECONSIDERATION ORDER 37106 - IPUC DOCKET NO. AVU-
E-25-15
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