HomeMy WebLinkAbout20130115Oral Argument Vol II.pdfal BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
GROUSE CREEK WIND PARK, LLC, and SUPREME COURT
GROUSE CREEK WIND PARK II, LLC, DOCKET NO.
39151 -2011
Petitioner-Appellant,
V.
IDAHO PUBLIC UTILITIES COMMISSION, ORAL ARGUMENT
Respondent-Respondent on Appeal,
and
IDAHO POWER COMPANY,
Respondent -Intervenor/Respondent
on Appeal.
.
HEARING BEFORE
COMMISSIONER MACK A. REDFORD (PRESIDING)
COMMISSIONER PAUL KJELLANDER
COMMISSIONER MARSHA H. SMITH
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PLACE: Commission Hearing Room
472 West Washington Street
Boise, Idaho
DATE: January 9, 2013
VOLUME II - Pages 45 - 61
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POST OFFICE BOX 578
BOISE, IDAHO 83701
208-336-9208
HEDRICK
COURT REPORTING
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For the Staff:
For Idaho Power Company:
For Grouse Creek Wind Park:
KRISTINE A. SASSER, Esq.
Deputy Attorney General
472 West Washington
Boise, Idaho 83702
DONOVAN E. WALKER, Esq.
and JULIA A. HILTON, Esq.
Idaho Power Company
1221 West Idaho Street
Boise, Idaho 83702
Richardson & O'Leary, PLLC
by GREGORY M. ADAMS, Esq.
and PETER J. RICHARDSON, Esq.
515 North 27th Street
Boise, Idaho 83702
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HEDRICK COURT REPORTING APPEARANCES
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1 BOISE, IDAHO, WEDNESDAY, JANUARY 9, 2013, 9:31 A.M.
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4 COMMISSIONER REDFORD: Let's go on the record.
5 Good morning, ladies and gentlemen. This is a hearing
6 scheduled for this date, January 9, 2013, at 9:30 o'clock a.m.
7 at the Public Utilities Commission headquarters in Boise. This
8 hearing is in the matter of Grouse Creek Wind Park, LLC, and
9 Grouse Creek Wind Park II, LLC, versus the Idaho Public
10 Utilities Commission and Idaho Power. These cases are on
11 appeal to the Idaho Supreme Court in Supreme Court Docket No.
12 39151-2011. These two cases were consolidated in this Supreme
13 Court case. The Idaho Public Utilities Commission Case Nos.
14 are IPC-E-10-61 and IPC-E-10-62.
15 There being -- there is a quorum present. All
16 Commissioners are in attendance.
17 The purpose for this hearing is to settle the
18 record on appeal. In its appeal, Petitioner-Appellant
19 requested certain documents originating before the Commission
20 to be included in the record on appeal. The Idaho Public
21 Utilities Staff and Idaho Power have objected to certain
22 documents that are requested to be included in the record.
23 Idaho Appellate Rules 29(a) and (b) govern these
24 proceedings and give the Idaho Public Utilities Commission
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25 authority to settle the record to be sent to the Idaho Supreme
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1 Court.
2 On the 21st day of December, 2012, the Idaho
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Public Utilities Commission, in Order No. 32702, issued its
4 Notice of Hearing in this matter.
5 If you will please identify yourself for the
6 record, starting with you, Mr. Adams.
7 MR. ADAMS: This is Greg Adams, on behalf of
8 Grouse Creek Wind Parks, and I have with me at the table here
9 Peter Richardson. And I believe Christine Mikell and
10 Andrew Fales from the wind projects may be calling in; I'm not
11 sure if they've gotten through.
12 COMMISSIONER REDFORD: Okay. Mr. Walker.
.
13 MR. WALKER: Thank you, Mr. Chairman. Donovan
14 Walker and Julia Hilton, on behalf of Idaho Power.
15 MS. SASSER: Kristine Sasser, representing
16 Commission Staff.
17 COMMISSIONER REDFORD: Okay. Are there any
18 preliminary matters that need to be taken up before we start
19 into the oral argument on this case?
20 Hearing none, we'll start with you, Ms. Sasser,
21 as you and -- for the Commission Staff and then to Mr. Walker
22 for Idaho Power, as you are the moving parties.
23 MS. SASSER: Thank you, Chairman Redford,
24 Commissioners.
.
25 Staff objects to the inclusion of any and all
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1 documents produced, submitted, or issued as part of the
2 GNR-E-10-04 case and GNR-E--11-01 case. The cases have been
3 fully and finally decided by this Commission, no parties
4 appealed, and the time for appeal on those cases has long since
5 expired. And inclusion of these cases in the record confuses
6 the issues and it subjects the final Decisions of this
7 Commission to collateral attack on the cases as they are
8 presented and the material assets presented to the Supreme
9 Court.
10 To the extent that any of the material in these
11 cases might be relevant to the Decision in the Grouse Creek
12 matter, it's already a part of the agency's record in this case
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13 on appeal. It's part of the final Orders in the Grouse Creek
14 matter on the original final Order, the final Order on
15 Reconsideration, and the Order on Reconsideration on Remand in
16 the 10-61 and 10-62 case to the extent that any of the material
17 from the generic dockets is relevant to the Decisions in this
18 particular matter currently in front of the Commission.
19 Also, while Idaho Appellate Rule 28(c) allows for
20 the inclusion of additional documents beyond the standard
21 record, the Rule specifically states -- and it's page 620 in
22 the Court Rules book. Idaho Appellate Rule 28(c), about
23 two-thirds of the way down, in talking about additional
24 documents that can be added to the record on appeal, states:
25 Not limited to written requested jury
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instructions, written jury instructions given by the court,
depositions, briefs, statements or affidavits considered by the
court or administrative agency in the trial of the action or
proceeding, or considered on any motion made therein, and
memorandum opinions or decisions of a court or administrative
agency.
Now, as Mr. Richardson has requested, Affidavits,
•Motions, Answers, additional documents, I believe that that
request is clearly outside the Rule for additional documents on
appeal to the Supreme Court. I think that the Rule includes
the Decisions made from the administrative agency which would
be the final Orders in the case, but clearly any of the
additional documents filed by NIPPC and any other parties is
not included in that language from the Rule.
I also believe that if Mr. Richardson would have
wanted the arguments from other parties in other cases to be
included and a part of the record and necessary on appeal for
the Grouse Creek matter, then those are arguments that he
should have included in the underlying case in this matter.
Removal of the irrelevant, unnecessary, and
duplicative material would substantially reduce the size of an
already substantial record. It would reduce the size of the
record by 315 pages, as proposed by Commission Staff. What's
more, it would allow the Supreme Court to focus on the real
issues in the Grouse Creek matter, which are narrowly tailored
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1 to the final Orders in this case and the issues that are
2 discussed in the underlying matter in this case.
3 And as a final note, I would also point out that
4 to be consistent with what the Court Rules are that the Supreme
5 Court puts in front of us and requests of us as parties and
6 agencies, Rule 28(a) of the Idaho Appellate Rules, when it
7 speaks about designation of record, the last sentence in Rule
8 28(a) of the Idaho Appellate Rules says: Parties are
9 encouraged to designate a clerk's or agency's record more
10 limited than the standard record.
11 Clearly in this case we not only have the
12 standard record, but we have more than 300 additional pages
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13 that are really unnecessary to appeal the legitimate and
14 necessary issues in this case.
15 And that's all I have. I open it up for
16 questions.
17 COMMISSIONER REDFORD: Any questions from the
18 Commissioners?
19 Hearing none, we'll move on to Mr. Walker.
20 MR. WALKER: Thank you, Mr. Chairman. And thank
21 you, Ms. Sasser.
22 Idaho Power agrees and objected to the same
23 documents referenced by Commission Staff, those being the
24 documents from the two GNR cases: GNR-E-10-04 and GNR-E- -- is
25 it 11 -- 11-01. And Idaho Power had a somewhat more expansive
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1 objection than Staff in that Idaho Power objects up front to
2 the inclusion of documents from any case that is not the case
3 that is on appeal presently in front of the Court.
It's a fundamental premise of appellate procedure
5 and the standards of review of this Commission's Decisions that
6 the review of any particular case is done on the record of that
7 case. It's not done on the record of other cases, it's not
8 done considering the arguments or documents or issues from
9 other matters. It's done on the record for this case, and
10 that's it.
11 I think Idaho Power -- it's Idaho Power's
12 position that not only as argued by Commission Staff as a
13 duplicative or not necessary or cause confusion in the record
14 or undue amount of documents, but it's entirely improper to
15 have an opportunity to argue about and discuss and possibly
16 back-door challenge issues or items from other cases that have
17 their own final Orders, their own determinations that are not
18 subject to appeal in this matter, that are the law of the case,
19 the law of this Commission, and not subject to argument and
20 challenge in the course of this case, they are to be accepted.
21 And to that matter, citation to Commission Orders
22 or other authority can be done in legal briefings and arguments
23 without the necessity of including those case dockets and those
24 records at this body in the record on appeal for an entirely
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25 separate matter.
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1 And as referenced by Commission Staff, once we
2 look a little closer at the specific documents requested, not
3 only is it improper because they're from different cases, but
4 several of them concern entirely different parties; i.e., not
5 Grouse Creek or these projects that are the subject matter of
6 this case.
7 At the end of the day, we have a system with
8 appellate review that vests the authority back to the trier of
9 fact, be that this Commission or a court of law, as the final
10 determination on what is contained in the record that was
11 before you that you utilized to make your Decision in the case.
12 And that's why we're here today. Regardless of what any three
13 of us may argue, it's up to you to determine what was relevant,
14 what's part of this case record, and what you relied upon in
15 reaching the Decisions for this case; not the Decisions in a
16 GNR case or in any other matter, but for this matter.
17 And to be specific, Idaho Power objects to
18 everything designated in the record that originates from other
19 cases besides IPC-E-10-61 and IPC-E-10-62, which are the two
20 Grouse Creek matters. Those are found in the proposed agency
21 record on appeal, Volume III, page 553, through Volume IV,
22 page 891, we ask be stricken from the record on appeal.
23 COMMISSIONER REDFORD: Mr. Adams.
24 MR. ADAMS: Thank you for the opportunity to
25 respond.
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HEDRICK COURT REPORTING ARGUMENT
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I think I'm first going to provide a little bit
of context for why we requested to have this material in the
record, bearing in mind that it was a while ago that we did it
and having -- the original Notice of Appeal was filed back in
September of 2011. So it's -- we -- in looking at the record
again, the amended Notice of Appeal, I think we're going to be
able to stipulate to have some of this material removed if
Idaho Power and the Commission would be willing to stipulate in
exchange for concessions not to add materials from these other
cases themselves.
So there's basically two different categories of
material that are in issue: There's the material from the
generic docket -- the two generic dockets, and then there's
also the material from the Complaint case. I'll start with the
generic docket materials from GNR-E-10-04 and GNR-E-11-01.
You know, first, in defense of our initial
request to include this material in the record, much of this
material is, in fact, referenced in Pleadings in this case.
Idaho Power's Application to approve the PPA5 and their
comments asking to have the PPAs rejected directly stated that
Idaho Power incorporated by reference materials from the
GNR-E-10-04 proceeding, and also the NIPPC comments were
referenced in the Grouse Creek comments and discussed. And
that was our thinking when we included those in the record.
However, in reviewing the amended Notice of
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HEDRICK COURT REPORTING ARGUMENT
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1 Appeal and the objections, we would be willing to stipulate to
2 remove the materials in Volume III, page 575, to Volume IV,
3 page 891. That's the entirety of what they requested to have
4 removed from those generic dockets. We would stipulate to do
5 that in exchange for agreement that Idaho Power and the
6 Commission are not going to move to augment the record with any
7 materials from those dockets at a later point in time during
8 the appeal. That was our concern and why we included material
9 from those dockets.
10 With regard to the Complaint dockets, the
11 Complaints actually appear twice in the record. Idaho Power
12 has objected to inclusion of the materials from the separate
13 Complaint dockets, which appear in Volume III, page 553 through
14 page 574. They also appear again in an Affidavit that was
15 filed on remand in these contract approval cases in Volume V,
16 pages 1179 and 12 dash oh three.
17 As we understand it, there's no objection to
18 inclusion of the second reference in Volume V. The Complaints
19 are obviously relevant to the issues on appeal; I don't think
20 that's disputed. So, you know, we would stipulate to removal
21 of the documents from the separate Complaint dockets in
22 Volume III, page 553 through page 574, so long as we get
23 confirmation that the other place where the Complaints exist in
24 the record in Volume V, 1179 to 1203, will not be removed from
.
25 the Appellate record. And those -- that's an Affidavit of
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[]
1 Counsel that was filed during the remand proceedings.
2 So, with that --
3 COMMISSIONER REDFORD: What was that last,
4 Volume V, what were those numbers?
5 MR. ADAMS: It was numbers 1179 to 1203.
6 So hopefully with that, that makes resolution of
7 this hearing pretty simple, and we can answer any questions the
8 Commissioners may have.
9 COMMISSIONER REDFORD: Any questions?
10 COMMISSIONER SMITH: No.
11 COMMISSIONER REDFORD: Just so I can be clear,
12 you would -- you agree that documents 575 through 891 can be
13 removed.
14 MR. ADAMS: It's -- well, the complete,
15 everything is Volume III, 553, through Volume IV, 891. And we
16 would agree to that if there is agreement that no other
Norm documents from GNR-E-10--04 and GNR-E-11-01 will later be
18 submitted into the appellate record through a Motion to Augment
19 under Idaho Appellate Rule 30 or otherwise; because once this
20 record is settled, the timeline is set for us to file our
21 brief, and we don't -- we anticipated that material being
22 submitted into the record, so we're fine with having it all
23 removed and we agree it's not relevant.
24 COMMISSIONER REDFORD: Have you spoken with the
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25 other parties about the Stipulation?
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1 MR. ADAMS: No, we didn't. The hearing was set
2 so quickly, we decided to just address it at the hearing here.
3 COMMISSIONER SMITH: Should we give them a few
4 minutes to talk about it.
COMMISSIONER REDFORD: Yes. Why don't we go off
6 the record for a few minutes, and maybe you can get together
7 and see if you can come up with a Stipulation.
8 Okay, we'll be in recess.
9 (Recess.)
10 COMMISSIONER REDFORD: Okay, let's go back on the
11 record.
12 MS. SASSER: Get Grouse Creek.
13 COMMISSIONER SMITH: Hang on.
14 COMMISSIONER REDFORD: Okay, we're on the record.
15 Mr. Adams, have you resolved your differences
16 with Staff and Idaho Power?
17 MR. ADAMS: I think -- I don't think we were able
18 to. I think that Idaho Power didn't want to stipulate to not
19 adding materials from these other dockets at a future time.
20 So, you know, we're not in a position to waive -- to stipulate
21 to have it removed and thereby waive our right to request
22 having any of this other material included at a later date.
23 COMMISSIONER SMITH: So -- I have a question.
24 COMMISSIONER REDFORD: Ms. Smith.
.
25 COMMISSIONER SMITH: So I was kind of curious
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about what you would see the difference between, you know, your
Stipulation kind of format and just the regular format where
people file their briefs and cite to stuff, be it legal
precedent or Commission Orders, which I think happens all the
time, even to stuff that's not in the official record.
MR. ADAMS: Well, I think -- I think we're in
agreement that the Orders don't need to be in the record to be
cited to the Court, Commissioner Smith.
COMMISSIONER SMITH: Okay.
MR. ADAMS: So, you know, the concern is more the
other materials that were filed by other parties in the docket.
COMMISSIONER SMITH: So you think that if -- that
there's a possibility that if the Commission chooses not to
have this material in the record and you don't have any
agreement, they are going to come along later and say, Please
add this to the record.
MR. ADAMS: That's our only concern.
COMMISSIONER SMITH: Okay. Thank you.
COMMISSIONER REDFORD: Any questions?
COMMISSIONER KJELLANDER: No.
COMMISSIONER REDFORD: Any further questions?
COMMISSIONER SMITH: Yeah. Yeah.
So if they did do that, would they be coming to
us or would they be coming to the Supreme Court?
MR. ADAMS: They would be going to the Supreme
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1 Court under a Motion to augment the record.
2 COMMISSIONER SMITH: Aha. I see.
3 MR. ADAMS: And our concern is also with the
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questions.
(Telephone sounds.)
COMMISSIONER REDFORD: This button?
COMMISSIONER SMITH: No, the bottom, that one.
COMMISSIONER REDFORD: Hello.
MS. MIKELL: Hello. Hello?
COMMISSIONER REDFORD: Who am I speaking to?
MS. MIKELL: This is Christine Mikell from
Wasatch Wind, trying to call in to the hearing.
COMMISSIONER REDFORD: Okay, you're on the
hearing. Would you please mute your phone so that we don't get
anything from your end.
MS. MIKELL: Sure, I'd be happy to. Going on
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(Telephone sounds.)
MR. ADAMS: -- how that would play out.
COMMISSIONER SMITH: Tell them they're late.
COMMISSIONER KJELLANDER: Just don't talk. Just
hang up.
COMMISSIONER SMITH: So if that happens again,
you have to push this button right there.
Thank you, Mr. Chairman. Those are all my
HEDRICK COURT REPORTING ARGUMENT
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1 mute. Thank you.
2 COMMISSIONER REDFORD: Thank you.
3 Is there anything further that the parties want
4 to discuss?
5 MR. ADAMS: Commissioner Redford, yes, just one
6 more thing.
7 I would like to clarify on the record that
8 there's been no objection to inclusion of the Complaints that
9 were filed with -- in the remand proceedings, in Volume V,
10 pages 1179 to page 1203, so that regardless of what the
11 Commission decides with regard to the material from the other
12 dockets, that that material will remain in the appellate
13 record.
14 COMMISSIONER REDFORD: What's that? What are
15 they again?
16 MR. ADAMS: It's Volume V, pages 1179 to 1203.
17 COMMISSIONER REDFORD: Okay. Well, if there's
18 nothing further to come before the Commission --
19 MR. WALKER: Mr. Chairman.
20 COMMISSIONER REDFORD: Yes.
21 MR. WALKER: I have a quick point relevant to
22 what Mr. Adams just referenced.
23 Idaho Power did reference on page 5 of its Motion
24 what Mr. Adams refers to is his own Affidavit in the 10-61 and
25 10-62 cases that he submitted that attached copies of the
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Complaints from the other matters, and what Idaho Power said in
its written materials was exactly what I said in argument:
That to the extent that the Commission determines it relied on
any of those materials, then it should determine that they're
part of the record.
COMMISSIONER REDFORD: Which were those again?
What's the page numbers of those Affidavits? Do you have them?
MR. WALKER: They're from Volume V. I don't have
the exact page number reference. I can look it up if you --
COMMISSIONER REDFORD: But it's an Affidavit of
Mr. Adams.
MR. WALKER. Yes. I believe it starts on 1179.
COMMISSIONER SMITH: And goes to 1203.
MR. ADAMS: That's correct. And when Mr. Walker
is done, I can direct the Commission to where that was actually
cited in the Orders.
MR. WALKER: And that's not necessary, because
I will agree that upon my review of the Order on Remand this
morning, I did see the Commission's own reference to the
Complaint and the fact that a summons was not issued in its
Orders in the 10-61 and 10-62 cases.
COMMISSIONER REDFORD: Anything else anyone has
to offer?
Well, hearing no other explanations or argument,
the Commission will take this under consideration and in due
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1 course will issue its ruling on how the record should be
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3 And so we'll go off the record at this time.
4 (The hearing adjourned at 10:02 a.m.)
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1 AUTHENTICATION
2
3
4 This is to certify that the foregoing is a
5 true and correct transcript to the best of my ability of the
6 proceedings held in the matter of Grouse Creek Wind Park, LLC,
7 and Grouse Creek Wind Park II, LLC, Petitioners/Appellants, vs
8 Idaho Public Utilities Commission, Respondent-Respondent on
9 Appeal, and Idaho Power Company, Respondent-Intervenor/
10 Respondent on Appeal, Supreme Court Docket No. 39151-2011,
11 commencing on Wednesday, January 9, 2013, at the Commission
12 Hearing Room, 472 West Washington, Boise, Idaho, and the
S
13 original thereof for the file of the Commission.
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16
WENDY J. NURRAY/5tafy Public
17 in and for the Stte of Idaho,
residing at Meridian, Idaho.
18 My Commission expires 2-8-2014.
Idaho CSR No. 475
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21 '1 r4
22 rLC J
23 - op ID 0
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