20230731United Evidentiary Hearing Brief.pdf

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Peter J. Richardson
RICHARDSON ADAMS, PLLC
515 N. 27th Street
Boise, Idaho 83702
(208) e38-7e01 (dd)
peterlÐri chardsonadarns. com
BEFORE THE IDAHO
PIJBLIC TJTILITIES COMMISSION
IN THE MATTER OF UNITED ELECTRIC
CO-OP INC.'S FORMAL COMPLATNT FOR
VIOLATION OF CONTRACT ENTERED
INTO PURSUANT TO THE IDAHO
ELECTzuC STABILIZATION ACT.
Case No.: Cl5-E-23-01
LINITED ELECTRIC CO-OP, INC.'S
HEARING BRIEF
COMES NO\ü, the Complainant, United Electric Co-op, Inc.r by and through its
attomey, Peter J. Richardson of the firm Richardson Adams, PLLC, and pursuant to Order No.
35855 issued by the Idaho Public Utilities Commission ("Commission") on July 21,2023, and
hereby lodges its Hearing Brief in anticipation of the public hearing scheduled in this matter for
August 14,2023. In Order No. 35855 the Commission directed that,
The hearing briefs shall contain a statement of the issue, a recitation of the party's
position, and any factual support for that position. Each party shall also file
copies of any exhibits it expects to produce and discuss at the hearing. If the
parties intend to call witnesses, the parties shall also hle prepared testimony.2
I Herein "United Electric" or "United."
2 Order No. 35855 atp.4.
UNITED ELECTRIC CO-OP, INC.'S HEARING BRIEF - I
RECEIVED
2023 JULY 31, 2023 4:37PM
IDAHO PUBLIC
UTILITIES COMMISSION
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Order No. 35855 also provides that:
The evidentiary hearing shall be on the singular factual dispute concerning the
physical location of the facility at it relates to Burley and United's respective
service territories as defined by the current agreements and amendments.3
Finally, Order No. 35855 provides that:
For the purposes of the evidentiary hearing the Commission shall consider the
Agreements between the parties valid and enforceable.a
STATEMENT OF THE ISSUE
In Order No. 35855, the Commission asked the Parties to include a "statement of the
issue" in their hearing briefs. However, the Commission's order itself provides a comprehensive
statement of the issue:
The evidentiary hearing shall be on the singular factual dispute concerning the
physical location of the Facility as it relates to Burley and United's respective
service territories as defined by the current agreements and amendments. For
purposes of the evidentiary hearing the Commission shall consider the
Agreements between the parties valid and enforceable.
Of course, the Commission's assumption that the current agreements and amendments thereto
are valid and enforceable is a good assumption. United's complaint rests on that foundational
assumption. In addition, the City of Burleys has admitted that the Agreements and amendments
have not been amended, altered or revised in response to a United Request for Admission
submitted to the City as follows:
3ldatpp.3-4.
4 Id atp.4.
s Sometimes referred to herein as the "City."
UNITED ELECTRIC CO-OP, INC.'S HEARING BRIEF - 2
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REQUEST FOR ADMISSION NO 3:
Please admit that the referenced Territory Agreements and Amendments that wert
the subject of the City's and United's joint application (dated June 12, 2003) in
Idaho PUC docket No. GNR-E-O3-03 have not been amended, altered, or revised
since the time of filing of the joint application in GNR-E-03-03.
RESPONSE TO REQUEST FOR ADMISSION NO. 3
The City admits this Request for Admission.
Michael Darrington, United's General Manager, provides testimony that includes
Exhibits 6 and 12 from United's complaint that initiated this proceeding. Those exhibits are
comprised of maps delineating the respective service territories of the two utilities. Those
exhibits also show the location of the new Suntado facility. The conclusion from Mr.
Darrington's testimony and from Exhibits 6 and 12 is that the Suntado facility is squarely within
the boundaries of United Electric Co-op, Inc. As testified to by Mr. Darrington, the City has
even admitted that Exhibit 12 'speaks for itself.' Of course, when Exhibit 12 "speaks" for itself
it is clearly stating (and graphically illustrating) United's position that the Suntado facility is
located in its service territory.
THE CITY OF BURLEY HAS TAKEN INCONSISTENT AND
INCOMPATIBLE POSITTONS ON WHETHER OR NOT THE SUNTADO
FACILITY IS - OR IS NOT - IN UNITED'S SERVICE TERRITORY
Paragraph I I of United's Complaint asserts
I l. In the Fall of last year, (2022), United leamed that Suntado, LLC is in the
process of developing a large milk processing facility on a tract of land that is
wholly in United's service territory.
In its Answer the City of Burley clearly, unequivocally and without reservation declared that
United's assertion is correct, the Suntado facility is located wholly in United's service territory
The City's answer in total provided:
1 l. The statements of Paragraph I 1 are not within the knowledge base of
Respondents, however, Respondents [Burley] admit the Suntado Jhcility is
UNITED ELECTRIC CO-OP, INC.'S HEARING BRIEF - 3
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currently in Uniled Electric's currently existing service territory. [emphasis
addedl
In addition, Burley admits that United Electric Co-op is currently serving a home on the Suntado
site. Burley admitted to United's allegations in Paragraphs l5 and l6 that the house on the
Suntado site that is currently listed as the business address for Suntado is being served by United
Electric:
15. The house at l2l0 W. 16th Ave., Burley, is currently being service by
United Electric.15. The Respondents [Burley] admit the allegations of Paragraph 15.
16. The house at l2l0 W. 16th Ave., Burley, Idaho is being used as the
physical business address of Suntado. See Exhibit No. 7 for a copy of Suntado's
annual report to the Idaho Secretary of State indicating that Suntado's physical
address is 1210 W. 16th Ave., Burley, Idaho.16. The Respondents fBurley] admit the allegations of Paragraph 15.
Despite speciflrcally admitting "the Suntado facility is currently in United Electric's currently
existing service territory" [Paragraph 1l of Burley's Answer]; and despite admitting that United
is cumently serving the home on the Suntado site that is being used as the business address for
Suntado [Paragraphs l5 and 16 of Burley's Answer]; Burley then, inexplicably, denies that the
Suntado site is in United's service territory. According to Burley's response to Paragraph l8 of
United's Complaint:
18. The site in question is wholly located withing the Commission approved
service tenitory of United Electric Co-op, Inc.
18. The Respondents [Burley] deny the allegations of Paragraph 18.
United has in good faith, and using its best efforts, attempted to understand and provide Burley
ample opportunities to disclose the foundation of its denials regarding whose service territory the
Suntado facility is located within. For example, United Electric has served discovery questions tc
the City that have specifically asked Burley to provide correspondence, maps, and agreements
UNITED ELECTRIC CO-OP, INC.'S HEARING BRIEF - 4
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that support Burley's denials. The City's responses have been vague, disorganized, and
unresponsive as to these foundational questions. Burley has not provided evidence that it has
any authority to provide electric service to the Suntado site. Either Burley is playing 'hide-the-
ball' and has some mysterious and unknown theory as to how the facility can be both in United
Electric's service territory and at the same time is not in United Electric's service territory - or
its Answer is so inconsistent, contradictory and unreliable such that it should be disregarded in
its entirety by the Commission in its deliberations. If it be the former, it is incumbent upon the
City to stop wasting the Commission's and United's time and resources and make a forthright
statement of its theory of the case or if it be the latter, then Burley should withdraw opposition to
United's complaint and facilitate the uneventful transfer of the Suntado electric connections to
United.
United Electric reserves its right, as provided for in the Commission's
Order No. 35855 to file rebuttal testimony/pleadings as such may be warranted in response to the
City's anticipated filings herein.
Dated this 31't day of July 2023.
Peter J.
CERTIFICATE OF SERVICE
I hereby certifu that on this 31't day of July 2023,1 caused to be delivered via electronic
mail only the foregoing Hearing Brief of United Electric Co-op, Inc. in IPUC Docket No. Cl5-E
23-01on the following Parties:
UNITED ELECTRIC CO-OP, INC.'S HEARING BRIEF - 5
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Idaho Public Utilities Commission
Jan Noriyuki, Commission Secretary
[e-mail]. gov
j an.noriyuki@puc. idaho. gov
Chris Burdin, Deputy Attorney General
[e-mail]. gov
By
Peter J.ISB # 3195
The City of Burley
Jaxon Munns, Counsel
[e-mail]
Brent Wallin
bwallin@burleyidaho. org
UNITED ELECTRIC CO-OP, INC.'S HEARING BRIEF - 6