20220808Decision Memo.pdf

DECISION MEMORANDUM 1
DECISION MEMORANDUM

TO: COMMISSIONER ANDERSON
COMMISSIONER CHATBURN
COMMISSIONER HAMMOND
COMMISSION SECRETARY
COMMISSION STAFF
LEGAL

FROM: CHRIS BURDIN
DEPUTY ATTORNEY GENERAL

DATE: AUGUST 9, 2022

SUBJECT: IN THE MATTER OF NOAH KINNE’S FORMAL COMPLAINT AGAINST
AVISTA CORPORATION; CASE NO. AVU-E-22-08.

On August 20, 2021, Noah Kinne contacted the Idaho Public Utilities Commission
(“Commission”) alleging, among other things, that Avista Corporation (“Company” or “Avista”)
failed to comply with its vegetation management policy. After informal proceedings proved
unsatisfactory, on March 7, 2022, Mr. Kinne filed a formal Complaint with the Commission.
Exhibit A.
Mr. Kinne claims that on or about July 13, 2021, a tree fell on Avista’s power line just
outside of Sandpoint, Idaho. Mr. Kinne contends that the tree fell south from railroad property, on
the west side of a farm access road, and that the tree downed a power line, which started a fire that
caused damage to Mr. Kinne’s Combine Harvester. Mr. Kinne claims that, based on Avista’s
negligence, the fire resulted in the total loss of Mr. Kinne’s farm equipment worth approximately
$8,000. Mr. Kinne argues that had the Company paid closer attention to the state of vegetation
surrounding its power lines, the fire would not have occurred because the Company would have
noticed the rotted tree and removed it.
In response, the Company claims that: (1) the downed tree that caused the brush fire was
outside of the Company’s utility corridor and therefore, not within the scope of the Company’s
vegetation management; (2) there is no evidence of negligence, or improper or incorrect work or
actions, on the part of the Company; (3) the tree was visibly healthy, and did not pose any visible
risks to the power lines.

DECISION MEMORANDUM 2
LEGAL RECOMMENDATION
The Deputy Attorney General (“Legal”) attached to the Commission has reviewed the
Complaint by Mr. Kinne as well as the documents provided by both parties. Based upon its review
of the Complaint and all submitted materials, Legal recommends that the Commission dismiss the
Complaint because: (1) the relief sought is outside the scope of the Commission’s jurisdiction; and
(2) Mr. Kinne’s Complaint lacks sufficient argument or authority for the Commission to consider.
A. Relief Sought
Legal notes that while it is not included in Mr. Kinne’s Formal Complaint, the basis of Mr.
Kinne’s informal complaint and the underlying relief sought by Mr. Kinne is a monetary damages
award against Avista for the damages done to Mr. Kinne’s farm equipment. The Commission lacks
jurisdiction to provide any monetary damage judgment against Avista.
With respect to the relief sought as stated in the Formal Complaint, Mr. Kinne concludes:
This problem can be remedied by doing the needed vegetation management in the
area and replacing the damaged pole. Avista claims that this tree would not have
been seen when doing a level 1 inspection of the area. If major hazards like this are
missed, they need to implement a better method of doing their inspections. It might
be called for to investigate whether Avista is actually complying with vegetation
management rules. Any fire caused by vegetation should warrant an onsite
inspection by the vegetation management department of the utility company to
ensure that there are no other hazards and if any others are present, they are
addressed immediately.
Complaint at 3. The basis of Mr. Kinne’s sought relief is that the Commission will dictate the
manner in which the Company will operate its vegetation management process. The Commission
does not have jurisdiction to dictate the manner in which the Company operates its vegetation
management process; rather, the Commission has jurisdiction under Idaho Code 61-302 to
determine whether a public utility has furnished its facilities and equipment to promote the safety,
health, comfort and convenience of its customers and the public, and to be in all respects adequate,
efficient, just, and reasonable. Thus, Mr. Kinne has not sought any relief that the Commission may
grant.
B. Sufficiency of Argument and Authority
Even if the Commission were to determine that it has jurisdiction to grant some relief as
requested by Mr. Kinne, the Complaint lacks sufficient argument or authority for the Commission
to make any determination as to the issues presented.
DECISION MEMORANDUM 3
Mr. Kinne cites to three sources of authority in his Complaint: (1) “Tariff schedule 70 16.
CONTINUITY OF SERVICE”; (2) Idaho Code 61-302; and (3) The National Electric Safety Code
(NESC) Rule 218. However, Mr. Kinne does not provide any argument or analysis as to how or
why the Company’s actions or omissions constituted a violation of any of the cited authority. Mr.
Kinne presents conclusory statements that Avista was negligent in its actions, and that Avista
should have seen the tree as a hazard during its inspection; however, Mr. Kinne has not presented
sufficient evidence to support the Complaint.
Specifically, with respect to the tree in question, Mr. Kinne presented a statement from
Terry Oliver, President of Legacy Consulting. Exhibit A. Mr. Oliver states that: “My conclusion
is that this tree was ‘standing dead’ for who knows how long and it finally succumbed to gravity
and fell in the direction of the sun as that is where the majority of the dead limbs were pointed.”
Exhibit A. Mr. Oliver’s statement does not contain any reference to the date on which his
examination was conducted, or a recitation of Mr. Oliver’s qualifications to make such a statement.
Further, the statement itself indicates that Mr. Oliver does not know when the tree may have died
as Mr. Oliver states “who knows” how long the tree had allegedly been dead.
Additionally, Mr. Kinne provided some photographs of the area in question. One photo is
alleged to have been taken on 7/3/2020, prior to the incident, and to show the tree in question
leaning in a clump of trees. Legal finds that photo to be taken from a great distance, and to not
clearly show any supporting evidence for Mr. Kinne’s complaint. Mr. Kinne’s additional
photographs are not dated but Legal believes they were taken in preparation for the formal
complaint in the year 2022, months after the event in question. Legal does not believe those
additional photographs provide sufficient support for the Complaint.
Finally, Avista submitted argument and documentation to show that the tree was outside
of its utility corridor. Exhibit B. Avista further argues that the tree would not have appeared as a
risk or hazard during its inspection of the power line corridor, and that Mr. Kinne has not presented
any evidence of actions or omissions by the Company in accordance with its vegetation
management process. Exhibit B. Mr. Kinne’s Complaint does not specifically allege that the tree
was inside of the Company’s utility corridor; rather, Mr. Kinne simply claims that Avista should
have seen the tree as a hazard. Similarly, Mr. Kinne does not point to any specific action on the
part of Avista; rather, Mr. Kinne concludes that Avista should have seen the tree as a hazard.

DECISION MEMORANDUM 4
Thus, because Mr. Kinne has not asked for any relief that the Commission may grant, and
because Mr. Kinne’s Complaint is not supported by sufficient argument or authority at this time,
Legal recommends that the Commission dismiss the Complaint.
COMMISSION DECISION
Does the Commission wish to dismiss Mr. Kinne’s Complaint?

______________________________
Chris Burdin
Deputy Attorney General

I:\Legal\ELECTRIC\AVU-E-22-08\memos\AVUE2208_dec_cb.docx
EXHIBIT A
EXHIBIT B