20230329Answer to Complaint.pdf

ANSWER AND PETITION FOR DECLARATORY ORDER - 1
Jaxon C. Munns, ISB# 11092
MURRAY ZIEL & JOHNSTON, PLLC
770 South Woodruff Avenue
Idaho Falls, Idaho 83401
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
UNITED ELECTRIC CO-OP, INC.,
COMPLAINANT,
vs.
THE CITY OF BURLEY, IDAHO,
RESPONDENT.

) ) ) ) ) ) ) ) ) )
Case No. C15-E-23-01 ANSWER TO UNITED ELECTRIC CO-OP INC.’s FORMAL COMPLAINT FOR VIOLATION OF CONTRACT ENTERED INTO PURSUANT TO THE IDAHO ELECTRIC STABILIZAITON ACT & CITY OF BURLEY’S PETITION FOR DECLARATORY ORDER
COMES NOW, the City of Burley, Idaho, by and through its attorney, Jaxon C. Munns of
the firm Murray, Ziel, & Johnston, PLLC, and pursuant to Rule 54 of the Idaho Public Utilities
Commision’s Rules of Procedure, and answers the Complainant’s formal Complaint. The City of
Burley denies the allegations of United Electric’s Complaint, unless specifically admitted hereafter.
Communications regarding the formal Complaint should be sent to:
THE CITY OF BURLEY, IDAHO
c/o Jaxon C.Munns
Murray, Ziel, & Johnston, PLLC
770 S Woodruff Avenue
Idaho Falls, ID 83401
[phone] (phone)
[phone] (fax)
[e-mail]
Copies of all pleadings, production requests, production responses, Commission orders and
other documents should also be provided to:
THE CITY OF BURLEY, IDAHO
c/o Brent Wallin
RECEIVED
2023 March, 29 4:37PM
IDAHO PUBLIC
UTILITIES COMMISSION
ANSWER AND PETITION FOR DECLARATORY ORDER - 2
City of Burley Utility Department
1401 Overland Avenue
Burley, ID 83318
[phone]
[e-mail]

I.
FACTUAL ALLEGATIONS
A. Background – The Service Territory Agreements
1. The Respondents lack requisite knowledge to affirmatively answer the allegations
of Paragraph 1. To the extent an answer is required, the Respondents aver the
Complainant is entitled to relief, and deny the allegations of Paragraph 1 thereof.
2. The Respondents admit the allegations of Paragraph 2
3. The Respondents admit the allegations of Paragraph 3.
4. In response to Paragraph 4, the Respondents state that the 1985 Territory Service
Agreement speaks for itself. To the extent that an answer is required for Paragraph
4, the Respondents aver the Complainant is entitled to relief, and deny the
allegations of Paragraph 4 thereof.
5. In response to Paragraph 5, the Respondents state that the 1996 Service Area
Stabilization Agreement speaks for itself. To the extent that an answer is required
for Paragraph 5, the Respondents aver the Complainant is entitled to relief, and
deny the allegations of Paragraph 5 thereof.
6. The Respondents admit the allegations of Paragraph 6.
7. The Respondents admit the allegations of Paragraph 7.
ANSWER AND PETITION FOR DECLARATORY ORDER - 3
8. The Respondents admit the allegations of Paragraph 8.
9. The Respondents admit the allegations of Paragraph 9.
10. The Respondents admit the allegations of Paragraph 10.
B. Suntado Proposes a New Facility Located in United’s Service Territory but within
the formal limits of the City of Burley.
11. The statements of Paragraph 11 are not within the knowledge base of Respondents,
however, Respondents admit the Suntado facility is currently in United Electric’s
currently existing service territory.
12. In response to Paragraph 12, the Respondents state that Exhibit No. 6 speaks for
itself. To the extent that an answer is required for Paragraph 12, the Respondents
aver the Complainant is entitled to relief, and deny the allegations of Paragraph 12
thereof.
13. The Respondents deny the allegations of Paragraph 13.
14. In response to Paragraph 14, the Respondents state that the maps speak for
themselves. To the extent that an answer is required for Paragraph 14, the
Respondents aver the Complainant is entitled to relief, and deny the allegations of
Paragraph 14 thereof.
15. The Respondents admit the allegations of Paragraph 15.
16. The Respondents admit the allegations of Paragraph 16.
17. The Respondents deny the allegations of Paragraph 17.
ANSWER AND PETITION FOR DECLARATORY ORDER - 4
18. The Respondents deny the allegations of Paragraph 18.
C. United Has Used Is Best Efforts to Resolve Burley’s Threatened Encroachment
Into its Service Territory
19. The Respondents deny the allegations of Paragraph 19.
20. The Respondents deny the allegations of Paragraph 20.
21. The Respondents deny the allegations of Paragraph 21.
22. The Respondents deny the allegations of Paragraph 22.
23. The Respondents deny the allegations of Paragraph 23.
24. The Respondents deny the allegations of Paragraph 24.
25. The Respondents deny the allegations of Paragraph 25.
26. The Respondents deny the allegations of Paragraph 26.
D. United’s Efforts to Resolve the Service Territory Encroachment By the City Have
Been Rebuffed
27. The Respondents deny the allegations of Paragraph 27.
28. The Respondents deny the allegations of Paragraph 28.
29. The Respondents deny the allegations of Paragraph 29.
30. The Respondents deny the allegations of Paragraph 30.
31. The Respondents deny the allegations of Paragraph 31.
ANSWER AND PETITION FOR DECLARATORY ORDER - 5
32. The Respondents deny the allegations of Paragraph 32.
33. In response to Paragraph 33, the Respondents state that Exhibit 12 speaks for
themselves. To the extent that an answer is required for Paragraph 33, the
Respondents aver the Complainant is entitled to relief, and deny the allegations of
Paragraph 33 thereof.
II
JURISDICTION
34. The Respondents admit the allegations of Paragraph 34.
35. The Respondents admit the allegations of Paragraph 35.
36. In response to Paragraph 36, the Respondents state that Order No. 29355 speaks for
itself. To the extent that an answer is required for Paragraph 36, the Respondents
aver the Complainant is entitled to relief, and deny the allegations of Paragraph 36
thereof.
37. The Respondents deny the allegations of Paragraph 37.
III
COUNT ONE
38. No answer is required in relation to the statements of Paragraph 38. To the extent
an answer is deemed required, the Respondents aver the Petitioner is entitled to
relief and deny the allegations of Paragraph 38 thereof.
39. The Respondents deny the allegations of Paragraph 39.
COUNT TWO
40. No answer is required in relation to the statements of Paragraph 40. To the extent
ANSWER AND PETITION FOR DECLARATORY ORDER - 6
an answer is deemed required, the Respondents aver the Petitioner is entitled to
relief and deny the allegations of Paragraph 40 thereof.
41. The Respondents deny the allegations of Paragraph 40.
COUNT THREE
42. No answer is required in relation to the statements of Paragraph 42. To the extent
an answer is deemed required, the Respondents aver the Petitioner is entitled to
relief and deny the allegations of Paragraph 42 thereof.
43. The Respondents deny the allegations of Paragraph 43.
Wherefore, the City of Burley, Idaho respectfully requests that the Commission dismiss the
Complainant’s Complaint in full and award the City of Burley, Idaho the following:
1. Entry of an order dismissing United Electric Co-op’s Complaint.
2. Entry of an order awarding the City of Burley, Idaho its attorney fees and costs
incurred in defending the Complaint.
3. Any further relief to which the City of Burley, Idaho may be entitled.
///
///
///
///
ANSWER AND PETITION FOR DECLARATORY ORDER - 7
PETITION FOR DECLARATOY ORDER
COMES NOW, the City of Burley, herein referred to as “Burley”, and pursuant to Rule 101
of the Rules of Procedure of the Idaho Public Utility Commission (IDAPA 31.01.01.101), hereby
respectfully submits its Petition for Declaratory Order regarding Order 29281. As grounds, Burley
states as follows:
PETITIONER INFORMATION

The Petitioner in this matter is the City of Burley. Burley has provided electrical service to
its residents for a period of at least 37 years, and was one of the parties in Case No. GNR-E-03-09,
a matter previously handled by this Idaho Public Utilities Commission.
PROCEDURAL HISTORY

The City of Burley and United Electric Co-Op, Inc. (“United”) through its predecessor, Rural
Electric, agreed to establish, in 1985, separate service territories for each party in Minidoka County.
The parties made an amendment to this agreement on or about May 6, 2003. Subsequently, the
parties filed an Application, on or about June 20, 2003 with the Idaho Public Utilities Commission
(“Commission”) seeking to have this Agreement approved by the Commission. The Commission
subsequently entered its order stating that “this Application be processed under Modified
Procedure.”
On or about July 3, 2003. To the best of Petitioner’s knowledge, no additional filings have
been submitted to the Commission since the entry of its 2003 Order, with exception of the March
2023 Complaint filed by United Electric.
DECLARATORY RULING PETITIONER SEEKS

Petitioner seeks a declaratory ruling from the Commission regarding the 2003 Order entered
by the Commission. Specifically, Burley respectfully asks the Commission to enter an Order that
ANSWER AND PETITION FOR DECLARATORY ORDER - 8
the previous territory service agreement of the parties can be terminated by either party, at which
point the provisions of Idaho Code §61-333B would govern the re-negotiation of a territory service
agreement between the parties.
FACTUAL AND LEGAL BASIS FOR PETITION FOR
DECLARATORY ORDER

Since the entry of the 2003 Order, disputes have arisen between the parties regarding the
continued growth the City of Burley is experiencing. As basis for this Petition, Burley raises the
following concerns:
i. The members who negotiated and entered the 1985 Territory Service Agreement,
and the 2003 amendment are no longer members of the bodies who have the
authority to negotiate and enter these Agreements.
The 1985 Territory Service Agreement (“TSA”) and the 2003 Amendment to the 1985
TSA were negotiated and approved by members of the Burley City Council, as well as the Board
of Directors for United Electric Co-Op. The City of Burley City Council Members in 2003 consisted
of: Curt Mendenhall, Gordon Hansen, Brent Kerbs, Dennis Curtis, Dave Ringle, and Adria Masoner.
Not a single member of the 2003 Burley City Council is the same, with the following members now
comprising the City Council: Casey Andersen, John Craner, Janet Hansen, Bryce Morgan, Jim Powell,
and Kimberli Seely. Upon information and belief, none of the individuals who exercised their
responsibilities on behalf of United Electric remain in those positions to date. To hold both parties
to the 1985 TSA and 2003 amendment in perpetuity goes against the very nature of democracy,
namely, that as new City Council Members are elected to office, they have the ability to make
changes to these significant items as they were elected to do by the citizens of Burley.
ii. No clause exists in any of the TSAs which prevents either party from terminating
the TSAs to renegotiate another.
ANSWER AND PETITION FOR DECLARATORY ORDER - 9
The TSAs in 1985, 1996, and 2003 are all replete with extensive language regarding the
rights and responsibilities of the parties. There are no clauses in any of these agreements which
explicitly prohibit the parties from being able to exercise a termination for any reason at all. Even
more shocking, the TSAs do not schedule regular and anticipated renewal periods wherein the
parties are able to revisit any issues Even if the intent in 1985, 1996 and 2003 was to bind the City
of Burley and United or its predecessors to the TSA in perpetuity, such intent would have and is
impracticable given the very nature of the parties themselves entering into this kind of agreement.
iii. Despite waiving conflict, there was a flagrant conflict of interest from
representation throughout the proceedings between the City of Burley and United
Electric Co-Op.
In the June 20, 2003 application filed with the Idaho Public Utilities Commission Case No.
GNR-E-03-03 the City of Burley was represented by R.C. Stone, Esq. United Electric Co-Op, on
the other hand was represented by William A. Parsons, Esq. See Exhibit “A”. Both these attorneys
worked at the same law firm, as is clearly stated in the application caption itself. Namely, both
attorneys state working at Parsons, Smith & Stone, LLP in Burley, Idaho. This fact alone creates
significant red flags as to whether or not either party was receiving sound legal advice, however
the issue is further worsened by looking at past filings and agreements in this matter. Specifically,
in a letter dated June 15, 1976 the same William A Parsons can clearly be seen representing the
City of Burley in these negotiations. See Exhibit “B” Again later, Mr. Parsons in a letter dated
June 10, 1996 can clearly be seen representing the city of Burley in the negotiations which are
now being litigated in front of this Commission. See Exhibit “C”. As such, after representing the
City of Burley on these matters for presumably over 20 years, Mr. Parsons then hands off
representation of the City to R.C. Stone, and claims United Electric Co-Op as a client for himself,
while possessing knowledge of over 20 years of representing Burley on this matter.. Even if the
ANSWER AND PETITION FOR DECLARATORY ORDER - 10
parties waived such conflict, this calls into question the validity of the legal advice relied upon by
both United Electric as well as the City of Burley. Thankfully, the Idaho legislature has provided
mechanism for parties to not be held hostage to the incorrect decisions of past law makers.
iv. Pursuant to Idaho Code 61-333B, statutory methods are available for citizens to
not be forced into using one service provider over another based on an agreement
entered into 37 years ago.
The Idaho legislature has contemplated an issue of two service providers not being able to
reach terms for an amended service agreement. Namely, the legislature provided, “In the event that
such voluntary agreement cannot be made within ninety (90) days of the date of incorporation or
annexation of such territory served by such cooperative association, then the municipal
corporation may, if so determined by unanimous vote of its governing body, submit to the
qualified electors of such municipality upon a special ballot to be voted upon at the next regular
election of such municipality, the question "Shall portions of the …. of …., Idaho which have
heretofore been served electrical energy by …. become a part of the electrical system of the
…. of …., Idaho. Said areas are generally known and described as follows: (Insert description)."
Idaho Code 61-333B.
Once this process is undertaken, the parties must then work to come to an agreement on
terms of “just compensation” for whatever business would be lost by the party who loses
business. Mechanisms are clearly in place here to handle such a situation, as is the situation the
parties now find themselves. The City of Burley stands prepared to negotiate this just
compensation to United Electric.

ANSWER AND PETITION FOR DECLARATORY ORDER - 11
JURISDICTION AND PROCEDURAL BASIS FOR
PETITION FOR DECLARATORY ORDER

An entity may petition the Commission to enter a declaratory order, and the Commission has
authority to grant the same. See Idaho Code §61-334B(3), IDAPA 31.01.01.101. The Commission
has broad authority and jurisdiction “to supervise and regulate every public utility in the state and to
do all things necessary to carry out the spirit and intent of the provisions of this act.” Idaho Code§
61-501. Pursuant to Idaho Code 61-333B, mechanism exist if parties are unable to come to
voluntary agreements regarding the provisions of public utilities to growing cities.
CONCLUSION

In sum, the City of Burley respectfully requests that the Idaho Public Utilities Commission
consider the change in circumstances that have occurred since the entry of the 2003 Order, and to
enter an order consistent with the aims and purposes of the Commission. Namely, the fact that all
parties now acting in decision making capacities are different than the individuals who made these
decisions in 2003. The Citizens of the City of Burley exercise their sacred right to vote in different
City Council members, in an effort to make changes to what has been done in the past. To hold
not just the City of Burley, but additionally, the citizens both current and present, hostage to the
decisions of a City Council 30 years ago flies in the face of the nature of democracy. Further, the
change in population in Burley since 2003 has been vast and extreme. The Idaho legislature has
provided a clear means and mechanism for which these kinds of disputes can be handled.
Respectfully, the City of Burley requests the Idaho Public Utilities Commission rescind its
previous order and allow the process of Idaho Code 61-333B to govern between the parties.
PRAYER
WHEREFORE, The City of Burley, Idaho respectfully requests the following from this
Honorable Body:
ANSWER AND PETITION FOR DECLARATORY ORDER - 12
1. A Declaratory Order, stating that the City of Burley and United Electric both are
entitled to terminate the 2003 Territory Service Agreement with reasonable notice to
the other party.
2. A Declaratory Order, stating that the provisions of Idaho Code 61-333B are now
meant to govern the negotiations between the parties.
3. An Order for Attorney’s Fees and Costs for the City of Burley, awarding them the fees
and costs incurred in bringing this Petition for Declaratory Order.
4. Any other relief the Commission sees fit to award the City of Burley.
DATED this 29th day of March 2023.

/s/ Jaxon C. Munns_____________
Jaxon C. Munns
Attorney for the City of Burley
ANSWER AND PETITION FOR DECLARATORY ORDER - 13