20260908Motion to Strike and in the Alternative Reply to Staffs Response to Petition for Reconsideration.pdf

RECE IVED
September 08, 2026
IDAHO PUBLIC
UTILITIES COMMISSION
1 Peter J. Richardson
515 N. 271h Street
2 Boise, Idaho 83702
3 [phone] Office
[phone] Mobile
4 peter,richardsonadanis.eom
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,
11 LLC'S MOTION TO STRIKE AND IN THE
ALTERNATIVE REPLY TO STAFF'S
12 RESPONSE TO PETITION FOR
RECONSIDERATION
13
14
15 I
16 MOTION TO STRIKE
17 1. Pleading Background - Timeline
18 In December 2025, Avista Corporation("Avista") filed its Wildfire Mitigation Plan
19
("WMP") with the Idaho Public Utilities Commission(the "Commission")for approval pursuant
20
to the Wildfire Standard of Care Act.' Subsequently, the Commission duly issued a Notice of
21
22 Application and in response to a Petition to Intervene filed by PotlatchDeltic Forest Holdings,
23
24
25 1. Idaho Code Section 61-1801 et seq. Herein the"WSCA."
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S MOTION TO STRIKE AND IN THE
27 ALTERNATIVE REPLY TO STAFF'S RESPONSE TO PETITION FOR
RECONSIDERATION - IPUC DOCKET NO. AVU-E-25-15
28
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I LLC ("PotlatchDeltic") issued its order granting PotlatchDeltic status as a party to this
2 proceeding.
3
On June 9, 2026, the "Commission issued Order No. 37064 in which it approved Avista'
4
5 2026 Wildfire Management Plan("WMP").
6 On June 30, 2026, PotlatchDeltic timely filed a Petition for Reconsideration of Order No.
7 37064.2
8 On July 7, 2026, answers to PotlatchDeltic's Petition for Reconsideration were due to be
9
filed.3 Neither Staff nor Avista nor any other person or party lodged an answer to
10
11
PotlatchDeltic's Petition for Reconsideration.
12 Also on July 7, 2026, cross-petitions for reconsideration were due to be filed.4 Neither
13 Staff nor Avista nor any other person or Party lodged a cross-petition for reconsideration.
14 Twenty-eight days later, the Commission issued Order No. 37106 granting
15
reconsideration. According to Order No. 37106 reconsideration was limited just to "allow the
16
17 parties to supplement the record in this case. " No issue or allegation of error was referred to by
18 the Commission in its Order No. 37106, which provided the parties with the opportunity to file
19 "all supplemental documentation that Petitioners consider relevant. "5
20
21
22
23
2 See Rule 331 of the Commission's Rules of Procedure,IDAPA 31.01.01.331 and see Idaho Code Section 61-626.
24 3Id.
4 Id.
25 5 Order No.37016 at p.2.
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S MOTION TO STRIKE AND IN THE
27 ALTERNATIVE REPLY TO STAFF'S RESPONSE TO PETITION FOR
RECONSIDERATION - IPUC DOCKET NO. AVU-E-25-15
28
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I On August 11, 2026, PotlatchDeltic timely filed its Response to Order No. 37106
2 granting reconsideration by observing that:
3
[T]he existing record speaks for itself Its[PotlatchDeltic's]Petition is uncontested and
4 unchallenged, no answers to its[PotlatchDeltic's]Petiton have been lodged, and the
time for such answers has long ago lapsed. The Commission must deny approval of
5 Avista's Wildfire Mitigation Plan, because it is both legally deficient and approving the
6 plan would be unconstitutional and unjust.6
7 "The record speaks for itself, " of course means that there is no need to supplement a record that
8 amply supports PotlatchDeltic's position that the Commission's only legal course of action is to
9
deny approval of Avista's defective WMP. PotlatchDeltic's Petition for Reconsideration was
10
incorporated by reference in its Response -- which reiteration once again details all of the
11
12 reasons Avista's WMP must be rejected by the Commission.
13 On August 31, 2026, Staff filed its "Response to PotlatchDeltic's Petition for
14 Reconsideration."
15
2. Motion to Strike Staff s Out-of-Time Late Filed Answer
16
17 The Commission should strike Staffs Response to PotlatchDeltic's Petition for
18 Reconsideration because it is nearly two months late, and Staff has not requested additional time
19 in which to file, nor has it pointed to any exigent circumstances. The deadline,pursuant to the
20 Commission's own rules of procedure for timely filing a response to PotlatchDeltic's Petition for
21
Reconsideration was July 7, 2026. By waiting until the last day of August to file its Response,
22
23
24
25 6 Underscoring provided.
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S MOTION TO STRIKE AND IN THE
27 ALTERNATIVE REPLY TO STAFF'S RESPONSE TO PETITION FOR
RECONSIDERATION - IPUC DOCKET NO. AVU-E-25-15
28
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I Staff s Response is almost two months late. It was not accompanied by a motion for leave to file
2 out-of-time. It was not filed with an explanation as to exigent circumstances that would justify'
3
the Commission to waive its clear and unequivocal rule as to timely filing of answers to petitions
4
for reconsideration.
5
6 Rule 331.05 of the Commission's Rules of Procedure provides that:
7 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
8 be f leC18 according to the procedures for cross-petitions for reconsideration.
9
Rule 331.02 "Cross-Petitions for Reconsideration"provides that:
10
Within seven (7) days after any person has petitioned for reconsideration, any other
11 person may cross-petition for reconsideration in response to any issues raised in the
12 petition for reconsideration.
13 The rule is unambiguous and prescriptive. Staff s purported Answer had to have been filed
14 within seven days after June 30, 2026, which is July 7, 2026, not August 31, 2026. Unlike the
15
Commission's rule on late filed petitions to intervene9 there is no opportunity for a `do-over' for
16
17 late filed answers to petitions for reconsideration. Indeed, Rule 331 provides that timely answers
18 "must"be filed within seven days. There are no exceptions contemplated in the rule. Even if the
19 Rule did allow for excused late filing of answers, in this instance the Staff has offered no
20
21
22
23
24 1 As discussed,infra,Rule 331 does not contemplate late filed answers—even if they are ostensibly justifiable.
8 Underscoring provided,parenthetical in original.
25 9 Rule 73 permits late filed petitions to intervene only upon a showing of a"substantial reason for the delay."
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S MOTION TO STRIKE AND IN THE
27 ALTERNATIVE REPLY TO STAFF'S RESPONSE TO PETITION FOR
RECONSIDERATION - IPUC DOCKET NO. AVU-E-25-15
28
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I explanation, excuse or even apology for imposing its out-of-time pleading on the Commission
2 and the other parties to this case.
3
PotlatchDeltic is not asking that the Staff be held to a higher standard of compliance with
4
5 the Commission's rules of procedure. This Commission has a history of looking with disfavor
6 on out-of-time pleadings (petitions to intervene being the one notable exception). In Order No.
7 27959, "In the Matter of the Application of Idaho Power Company,..."10 the Commission
8 rejected a Petition for Reconsideration that was filed one day late despite the petitioner's
9
assertion that the late filed petition was excused due to a calendaring error and noted that the
10
11
Commission's rules of procedure are to be "liberally construed to secure just speedy and
12 economical determination of all issued presented to the Commission."11 The following colloquy
13 from that case is instructive as to the Commission's overarching position on late filed pleadings:
14 The Idaho Supreme Court has left no doubt regarding the enforceability of the 21 day
15 deadline for reconsideration and the consequences of a late filing. Moreover, as noted by
Idaho Power, the 21 day deadline contained in Idaho Code §61-626 dovetails with the
16 Idaho Appellate Rules (IAR) which utilizes 7 day increments in establishing deadlines.
Rule 14 of the IAR provides that appeals for District Court decisions must be made
17 within 42 days. On more than one occasion, the Idaho appellate courts have rejected an
18 appeal on the basis that it was filed only one day late. For example, in State v. Fuller 104
Idaho 891. 665 P.2d 190 (App., 1983) the Court of Appeals dismissed a criminal appeal
19 that was filed on the 43rd day after the District Court's judgement. The Court held that
"failure to file a timely notice of appeal is a jurisdictional defect which requires dismissal
20 of the appeal.
21
22
23
24 10 In the Matter of the Application of Idaho Power Company, Case No. IPC-E-98-12;Order No.37959,99 Ida.PUC
LEXIS 58(1999).
25 11 Id at P.2,LEXIS pagination.
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S MOTION TO STRIKE AND IN THE
27 ALTERNATIVE REPLY TO STAFF'S RESPONSE TO PETITION FOR
RECONSIDERATION - IPUC DOCKET NO. AVU-E-25-15
28
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I There is simply no question that the Commission views late filed pleadings with extreme
2 disfavor. Staff appears to simply assume that it is entitled to an exception to the rule.
3
PotlatchDeltic humbly and respectfully requests the Commission issue its order striking, with
4
5
prejudice, Staff s Response to PotlatchDeltic's Petition for Reconsideration. Staff had ample
6 opportunity to file a timely response at the time such responses were due.
7 3. Staff s Comments Fail as a Possible Response to Order No. 37106
8 Staff filed its "Response to PotlatchDeltic's Petition for Reconsideration" on the same
9
due date that Order No. 37106 called for"responsive comments"to the record supplements that
10
11 were filed by the two petitioners for reconsideration were due. According to Order No. 37106:
12 [T]he Commission grants reconsideration to allow the parties to supplement the record in
this case. The Commission hereby orders Petitioners to file all supplemental
13 documentation that Petitioners consider relevant ...within 14 days of the date of this
order. ... [and] grant[s] the Company and other interested parties an opportunity to file
14 responsive comments. ... [O]nce the petitions 12 are fully submitted, the Company and all
15 other interested parties shall have 21 days to file responsive comments and Petitioners
shall then have an additional 7 days in which to file any replies to the responses.
16
17 Staff s `coincidental' filing of its Response to PotlatchDeltic's Petition for Reconsideration on
18 the same say that"responsive comments"to supplements to the record were due should not be
19 confused as a clerical error by simply mis-labeling its `responsive comments' as a"Response to
20 PotlatchDeltic's Petition for Reconsideration." PotlatchDeltic did not file any supplements to the
21
22
23
24
12 It is unclear what"petitions"the Commission is referencing—presumably the reference means the supplements to
25 the record previously addressed in the same paragraph.
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S MOTION TO STRIKE AND IN THE
27 ALTERNATIVE REPLY TO STAFF'S RESPONSE TO PETITION FOR
RECONSIDERATION - IPUC DOCKET NO. AVU-E-25-15
28
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I record. It simply, and accurately, noted that the record speaks for itself and that its Petition for
2 Reconsideration stands as ample evidence as to the inadequacy of Avista's Wildfire Mitigation
3
Plan—and hence the requirement that the Commission issue its order rejecting the same.
4
5
4. Prayer for Relief— Motion to Strike
6 Staff s filing in this docket on August 31, 2026, however labeled, must be stricken. If it
7 be a"Response to PotlatchDeltic's Petition for Reconsideration" it is out of time and filed
8 without so much as a request for leave to file such a pleading out of time as fully discussed
9
supra. If it be "responsive comments"to supplements to the record, it fails and must be stricken
10
because there are no supplements to record upon which it may respond. As such, it is a rogue
11
12 pleading not contemplated by the Commission's Rules of Procedure nor contemplated by the
13 procedural schedule established by order in this docket.
14 I1
15 SUBSTANTIVELY, STAFF'S "RESPONSE TO POTLATCHDELTIC'S PETITION FOR
RECONSIDERATION INVALIDATES THE USE OF MODIFIED PROCEDURE
16
17 PotlatchDeltic's position, as discussed supra, is that Staffs filing on August 31, 2026,
18 however labeled, must be stricken from the record. However, should the Commission rule
19 against the Motion to Strike and allow Staff s pleading to stand, then the entire premise of
20 proceeding pursuant to modified procedure will be nullified.
21
Staffs pleading of August 31, 2026, recants and disavows its original comments on
22
23 Avista's WMP. It creates a factual dispute as to the accuracy of both the original comments and
24 also of the revised and recanted comments. Staff s retraction of its original comments that were
25
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S MOTION TO STRIKE AND IN THE
27 ALTERNATIVE REPLY TO STAFF'S RESPONSE TO PETITION FOR
RECONSIDERATION- IPUC DOCKET NO. AVU-E-25-15
28
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I cited by PotlatchDeltic also calls into question the very credibility of its remaining comments
2 that were not addressed in PotlatchDeltic's comments.
3
1. Essential Plan Elements Simply Dissolve into Optional Suggestions
4
A. INSPECTION DEFICIENCIES
5
6 In its original comments on Avista's WMP, Staff made the following unequivocal,
7 unambiguous and straight-forward statement:
8 The Company should identify deficiencies through its inspections and other related
9 activities. Monitoring and correcting inspection deficiencies according to their respective
priority is essential to protect safety and system reliability because a growing backlog
10 signals that additional resources or process changes are needed to keep risks from
11 escalating.13
12 PotlatchDeltic's Petition for Reconsideration observed, relative to staff s above quoted statement
13 that:
14 The use of the word"essential"was not accidental. Staff s Comments explain why this
15 information is essential and also explain the consequences of Avista's failure to include
this "essential" information in its WMP: to wit"a growing backlog signals that
16 additional resources are needed. ""
17 Staff s August 31, 2026, pleading at page 3 makes the unsupportable assertion that
18
PotlatchDeltic has `misrepresented' Staff s comments:
19
20 "PotlatchDeltic's interpretation misrepresents Staff s suggestion to the Company."15
21
22
23
24 13 Staff Comments at p. 17. Italics provided.
"Id. Italics in original comments.
25 15 Staff s 2026,Pleading at p.3.
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S MOTION TO STRIKE AND IN THE
27 ALTERNATIVE REPLY TO STAFF'S RESPONSE TO PETITION FOR
RECONSIDERATION - IPUC DOCKET NO. AVU-E-25-15
28
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I Staff s statement is not credible for multiple reasons. First, it does not identify any alleged
2 "misrepresentation"by PotlatchDeltic. PotlatchDeltic did not perverse nor falsify any statement
3
made by Staff. Its claim of misrepresentation is derogatory and pejorative. At a minimum
4
5
Staff s assertion of an active misrepresentation must be completely disregarded by the
6 Commission. Second,the quoted language is accurate. The explanation is accurate. The
7 consequences of the failure to "identify deficiency through inspections" is accurately noted.
8 Third, Staff s comments are not a mere "suggestion"—after all, identifying essential elements of
9
Avista's WMP that are missing is not merely an inconsequential suggestion. Finally, Staffs
10
11 comments are not a"suggestion to the Company." They are comments lodged with the
12 Commission for the Commission's consideration—they are not some side note to Avista offering
13 helpful hints on drafting technicalities.
14 Staff then backtracks, recants and self-contradicts its original comments by observing
15
that:
16
Neither the Wildfire Standard of Care Act("WSCA") nor the Commission's WMP
17 Guidelines require this particular data to be included within the 2026 WMP. As it is not
18 a minimum requirement, Staff does not believe that the lack of a monitoring process
invalidates the Commission's approval of the 2026 WMP.16
19
20
21
22
23
24
25 16 Staffs August 31,2026,pleading at p.3.
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S MOTION TO STRIKE AND IN THE
27 ALTERNATIVE REPLY TO STAFF'S RESPONSE TO PETITION FOR
RECONSIDERATION- IPUC DOCKET NO. AVU-E-25-15
28
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I All of a sudden, what was once "essential to protect safety and system reliability"becomes less
2 than a"minimum requirement." One can only conclude either that"safety and system reliability'
3
are not"essential" or that Staff s comments lack credibility.
4
5
This inconsistency and self-contradictory position on what may (or may not be) an
6 "essential" element of Avista's WMP can not be resolved via modified procedure, obviously.
7 Conflicting evidence/testimony/positions are resolvable only through the hearings process in
8 which a witness is held accountable for his or her statements via examination and cross-
9
examination. This is especially true when the conflicting evidence/testimony/positions are
10
emanating from one and the same party. It is simply impossible to discern what Staff really
ll
12 thinks based on its comments that are wildly inconsistent and self-contradictory. Of course,this
13 inconsistency calls into question Staffs credibility with response to the other issues it addresses
14 in its comments, issues such as quality assurance which is addressed below.
15
B. QUALITY ASSURANCE PROGRAMS
16
17 In its Petition for Reconsideration, PotlatchDeltic accurately quoted Staff s concerns
18 regarding the lack of a Quality Assurance program for vegetation management in Avista's WMP
19 That Petition for Reconsideration provides at p. 19:
20 Staff also identified a vegetation management"quality assurance program"as a missing
21 essential element of the WMP. Staff specifically called out the lack of a Quality
Assurance program for vegetation management and complained that this essential
22 element of the WMP is also missing:
23 [quoting Staff]
24
25
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S MOTION TO STRIKE AND IN THE
27 ALTERNATIVE REPLY TO STAFF'S RESPONSE TO PETITION FOR
RECONSIDERATION - IPUC DOCKET NO. AVU-E-25-15
28
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I Staff believes a [vegetation management] QA program is essential, as it verifies
that corrective work truly resolves the identified issue, ensuring safety, reliability,
2 and accountability . . . however it was not included within its [Avista's] WMP.17
3
PotlatchDeltic accurately quoted Staff's description of QA programs as "essential" and agreed
4
5 with Staff s observation that they are missing from Avista's WMP. PotlatchDeltic also pointed
6 out that the Commission completely missed the point of Staff s comments by punting to future
7 WMP's to cure this lack of an essential element in Avista's current WMP when it stated that:
8 Staff recommended that the Company describe its vegetation management quality
9 assurance program in future WMP filings.18
10 PotlatchDeltic expressed concern that this essential element is missing from Avista's WMP. The
11 cure is not to "describe its vegetation management quality assurance program"in some
12
unidentified future WMP. Staff s recommendation that it be included in future WMP's
13
14 completely missed the point that it is not included in the current WMP which is the source of
15 PotlatchDeltic's objection.
16 Now, in its Response to Petition for Reconsideration; Staff once again recants its original
17 position as to the "essential"nature of a missing and critical piece of Avista's WMP. Now,
18
according to Staff, Avista's failure to include a quality assurance program in its WMP is no
19
20 longer an"essential"missing piece but is nothing more than a mere suggestion that"would
21 strengthen the Company's WMP over time."19
22
23
24 PotlatchDeltic Petition for Reconsideration at p. 19,quoting Staff Comments [also] at p. 19.
'g Id.,quoting Order No. 37064 at p.5.
25 19 Staffs Response to Petition for Reconsideration filed on August 31,2026,at pp.4—5.
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S MOTION TO STRIKE AND IN THE
27 ALTERNATIVE REPLY TO STAFF'S RESPONSE TO PETITION FOR
RECONSIDERATION - IPUC DOCKET NO. AVU-E-25-15
28
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I As noted above, Staff s repeated recanting of its prior unequivocal assertions as to
2 "essential"missing elements in Avista's WMP makes the use of modified procedure
3
inappropriate. Staff s credibility is therefore also called into question relative to its other
4
5
assertions relative to the viability of Avista's WMP in general—including its conclusions that the
6 WMP ought to be approved.
7
8
V.
9 PRAYER FOR RELIEF
10 WHEREFORE, for the reasons stated above, PotlatchDeltic Forest Holdings, LLC
11 respectfully requests the Commission strike from the record Staff s out-of-time Response to
12
PotlatcliDeltic's Petition For Reconsideration filed on August 31, 2026. Substantively there is
13
14 nothing in Staff s Comments that alters the conclusion that Avista's WMP should be rejected by
15 the Commission for the reasons set forth in PotlatchDeltic's Petition for Reconsideration and as
16 further elaborated herein. Finally, the Commission's decision to proceed via modified procedure
17 is undermined and should be rescinded due to the contradictory nature and lack of credibility of
18
Staff s comments and reply comments.
19
20 Dated this 8th day of September 2026. r
21 Peter J. Rich• dson ISB # 3195
22
23
24
25
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S MOTION TO STRIKE AND IN THE
27 ALTERNATIVE REPLY TO STAFF'S RESPONSE TO PETITION FOR
RECONSIDERATION - IPUC DOCKET NO. AVU-E-25-15
28
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1
I HEREBY CERTIFY that on the 8th day of September 2026, a true and correct copy of the
2 within and foregoing POTLATCHDELTIC FOREST HOLDINGS, LLC'S MOTION TO
3 STRIKE AND IN THE ALTERNATIVE REPLY TO STAFF'S RESPONSE TO PETITION
FOR RECONSIDERATION CASE NO. AVU-E-25-15 was served by electronic copy only, to:
4
5 Monica Barrios-Sanchez
6 Commission Secretary
Idaho Public Utilities Commission
7 Monica.Uarriossanchez, puc.idaho.gov
8
secretarycO p uc.idaho.gov
9 Jeff Loll
Idaho Public Utilities Commission
to jeff.loll(n�puc.idaho.gov
11 Anni Glogovac
12 Avista Corporation
Anni.glogovacreDavistacorp.com
13 Avistadocketsna�,avistacorp.com
14 Elizabeth Andrews
15 Sr. Mgr. Revenue Requirements
Avista Corporation
16 Liz.andrews(a-),avistacorp.com
17 John A. Richards Tara Malek
18 J.J. Winters Bennett Lumber, Et.al.
Idaho Department of Lands Smith& Malek, PLLC
19 jwintersni idl.idaho.gov service tQi malekattorneys.corn
20 Richards @idl.idaho.gov
21 Q�By:
22 Peter J. Richardson ISB # 3195
23
24
25
26 POTLATCHDELTIC FOREST HOLDINGS, LLC'S MOTION TO STRIKE AND IN THE
27 ALTERNATIVE REPLY TO STAFF'S RESPONSE TO PETITION FOR
RECONSIDERATION- IPUC DOCKET NO. AVU-E-25-15
28
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