20230721Notice_of_Petition_for_Declaratory_Judgement_Order_No_35855.pdf

NOTICE OF PETITION FOR DECLARATORY JUDGEMENT
NOTICE OF EVIDENTIARY HEARING
ORDER NO. 35855 1
Office of the Secretary
Service Date
July 21, 2023
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF UNITED ELECTRIC
CO-OP INC.’S FORMAL COMPLAINT FOR
VIOLATION OF CONTRACT ENTERED
INTO PURSUANT TO THE IDAHO
ELECTRIC STABILIZATION ACT
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CASE NO. C15-E-23-01

NOTICE OF PETITION FOR
DECLARATORY JUDGEMENT

NOTICE OF EVIDENTIARY
HEARING

ORDER NO. 35855

On February 22, 2023, United Electric Co-op, Inc. (“United”) filed a formal complaint
(“Complaint”) with the Idaho Public Utilities Commission (“Commission”). United alleges that
the City of Burley, Idaho (“Burley” or “City”), violated a series of service agreements
(“Agreements”) related to the allocation of the respective electric service territory and customers
by and between the City and United, which were entered into pursuant to the Idaho Electric
Stabilization Act (“ESSA”), and that have been approved by order of the Commission.
Specifically, United’s Complaint concerns the construction of a milk processing facility
(“Facility”) that is being built by Suntado, LLC (“Suntado”). United states that the Facility is
wholly within United’s service territory.
United requests that the Commission issue an order: (1) prohibiting the City from engaging
in further acts in violation of the Agreements; (2) prohibiting the City from providing electric
service to the Facility; and (3) requiring the City to remove all electrical connections, facilities
and/or equipment installed to serve the Facility.
On March 23, 2023, the Commission issued a Summons to Burley directing the City to file
a written answer to the Complaint within twenty-one (21) days of the service date of the Summons.
On March 29, 2023, Burley filed an answer (“Answer”) to the Complaint, and a petition
for declaratory order (“Petition”). Burley specifically denies some of United’s Background and
Factual Allegations concerning the location of the Facility with respect to United and Burley’s
service territories:
[United]: 13. Exhibit 6, in addition to showing the location of the proposed new
Suntado facility, also shows the boundary between the City of Burley’s service
territory and United Electric’s service territory. As is apparent from Exhibit 6,
although the Suntado site abuts on two sides the boundary dividing the City and
NOTICE OF PETITION FOR DECLARATORY JUDGEMENT
NOTICE OF EVIDENTIARY HEARING
ORDER NO. 35855 2
United’s respective service territories, it is entirely within the boundaries of
United’s exclusive service territory.
[Burley]: 13. The Respondents deny the allegations of Paragraph 13.
[United]: The location of the Suntado proposed processing plant on the site in
question may be generally described as being bounded by 16th Street on the south,
the railroad on the east and roughly by Washington Street on the west. The northern
and eastern boundaries of the lot are conterminous with the existing boundary
separating United’s service territory from the City’s service territory. It is located
at approximately the 1200 through 1600 blocks on the north side of 16th Street and
west of the railroad right-of-way in the City of Burley
[Burley]: 17. The Respondents deny the allegations of Paragraph 17
[United]: 18. The site in question is wholly located within the Commission
approved service territory of United Electric Co-op, Inc.
[Burley]: 18. The Respondents deny the allegations of Paragraph 18.
Burley generally denies all of United’s remaining Factual Allegations and all three of United’s
Counts in the Complaint.
Burley requests that the Commission dismiss the Complaint in full and award it: (1) Entry
of an order dismissing United Electric Co-op’s Complaint; (2) Entry of an order awarding Burley
its attorney fees and costs; and (3) Any further relief to which the City of Burley, Idaho may be
entitled.
NOTICE OF PETITION FOR DECLARATORY JUDGMENT
YOU ARE HEREBY NOTIFIED that Burley has petitioned for a declaratory ruling from
the Commission finding that the previous territory service agreement between Burley and United
may be terminated by either party at any time. Burley represents that the provisions of Idaho Code
§ 61-333B would then govern the re-negotiation of a territory service agreement between the
parties. Petition at 7-8.
YOU ARE FURTHER NOTIFIED that Burley represents that the territory service
agreement should be terminated because 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. Id. at 8.
YOU ARE FURTHER NOTIFIED that Burley represents that the territory service
agreement should be terminated because no clause exists in any of the service agreements that
prevents either party from terminating the agreements to renegotiate another agreement. Id. at 8-
9.
NOTICE OF PETITION FOR DECLARATORY JUDGEMENT
NOTICE OF EVIDENTIARY HEARING
ORDER NO. 35855 3
YOU ARE FURTHER NOTIFIED that Burley represents that the territory service
agreement should be terminated because, despite waiving conflict, there was a flagrant conflict of
interest from representation throughout the proceedings between Burley and United. Id. at 9.
YOU ARE FURTHER NOTIFIED that Burley represents that the territory service
agreement should be terminated because 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. Id. at 10.
YOU ARE FURTHER NOTIFIED that Burley requests that the Commission enter a
Declaratory Order: (1) stating that Burley and United both are entitled to terminate the 2003
Territory Service Agreement with reasonable notice to the other party; (2) stating that the
provisions of Idaho Code § 61-333B are now meant to govern the negotiations between the parties;
(3) awarding Burley attorney’s fees and costs; and (4) any other relief the Commission sees fit.
YOU ARE FURTHER NOTIFIED that the Petition and submitted documentation is
available for public inspection during regular business hours at the Commission’s office. All
documents are also available on the Commission’s website at http://www.puc.idaho.gov/. Click
on the “ELECTRIC” icon, select “Open Cases,” and click on the case number as shown on the
front of this document.
YOU ARE FURTHER NOTIFIED that all proceedings in this case will be held pursuant
to the Commission’s jurisdiction under Title 61 of the Idaho Code, and that all proceedings in this
matter will be conducted pursuant to the Commission’s Rules of Procedure, IDAPA 31.01.01.000
et seq.
YOU ARE FURTHER NOTIFIED that, pursuant to Rule 102, the Commission finds it
appropriate to serve copies of this Notice on all affected utilities. IDAPA 31.01.01.102. Utilities
shall have twenty-one (21) days from the filing of this order to submit written comments in
support of, or opposition to, the petition.
NOTICE OF EVIDENTIARY HEARING
YOU ARE HEREBY NOTIFIED that the Commission shall conduct an evidentiary
hearing in this matter on MONDAY, AUGUST 14, 2023, starting at 11:00 a.m. (local time).
The evidentiary hearing will be held at the Idaho Public Utilities Commission, 11331 W.
Chinden Boulevard, Building 8, Suite 201-A, Boise, ID 83714. The evidentiary hearing shall be
on the singular factual dispute concerning the physical location of the Facility as it relates to Burley
NOTICE OF PETITION FOR DECLARATORY JUDGEMENT
NOTICE OF EVIDENTIARY HEARING
ORDER NO. 35855 4
and United’s respective service territories as defined by the current agreements and amendments.
For the purposes of the evidentiary hearing the Commission shall consider the Agreements
between the parties valid and enforceable.
YOU ARE FURTHER NOTIFIED that the Parties shall file hearing briefs with supporting
affidavits and exhibits by July 31, 2023. 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 file prepared testimony.
YOU ARE FURTHER NOTIFIED that the evidentiary hearing shall be conducted in
accordance with the general rules outlined in the Commission’s Rules of Procedure. As the
complainant, United shall present its evidence first in the form of oral argument, submission of
evidence and exhibits, and if applicable, witness testimony. Respondent Burley shall then present
its evidence in similar fashion. United may then be given a chance to rebut. At the conclusion of
the hearing, the Commission may request that the parties submit closing briefs before the
Commission issues its decision.
YOU ARE FURTHER NOTIFIED that all testimony and exhibits in this matter must
comport with the requirements of Commission Rules of Procedure 231 and 267. IDAPA
31.01.01.231 and .267.
YOU ARE FURTHER NOTIFIED that all hearings and prehearing conferences in this
matter will be held in facilities meeting the accessibility requirements of the Americans with
Disabilities Act (“ADA”). Persons needing the help of a sign language interpreter or other
assistance in order to participate in or to understand testimony and argument at a public hearing
may ask the Commission to provide a sign language interpreter or other assistance at the hearing.
The request for assistance must be received at least five working days before the hearing by
contacting the Commission Secretary at:
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, IDAHO 83720-0074
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
YOU ARE FURTHER NOTIFIED that all proceedings in this matter will be conducted
pursuant to the Commission’s Rules of Procedure, IDAPA 31.01.01.000, et seq.
NOTICE OF PETITION FOR DECLARATORY JUDGEMENT
NOTICE OF EVIDENTIARY HEARING
ORDER NO. 35855 5
INVITATION TO SETTLE
Pursuant to Rule 273, the Commission invites the parties to settle this matter in full. The
Commission believes that the current agreements between the parties and the provisions of Idaho
Code provide a path toward settlement that does not require Commission adjudication of a Formal
Complaint.
ORDER
IT IS HEREBY ORDERED that copies of this Notice shall be served on all affected
utilities.
IT IS FURTHER ORDERED that those utilities shall have twenty-one (21) days from the
filing of this order to submit written comments in support of, or opposition to, the petition.
IT IS FURTHER ORDERED that the Commission shall conduct an evidentiary hearing in
this matter on MONDAY, AUGUST 14, 2023, starting at 11:00 a.m. (local time). The evidentiary
hearing will be held at the Idaho Public Utilities Commission, 11331 W. Chinden Boulevard,
Building 8, Suite 201-A, Boise, ID 83714.
IT IS FURTHER ORDERED that the Parties shall file hearing briefs and exhibits with the
Commission by July 31, 2023.
IT IS FURTHER ORDERED that parties comply with Order No. 35375, issued April 21,
2022. Generally, all pleadings should be filed with the Commission electronically and will be
deemed timely filed when received by the Commission Secretary. See Rule 14.02. Service between
parties should continue to be accomplished electronically when possible. However, voluminous
discovery-related documents may be filed and served on CD-ROM or a USB flash drive.
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NOTICE OF PETITION FOR DECLARATORY JUDGEMENT
NOTICE OF EVIDENTIARY HEARING
ORDER NO. 35855 6
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this 21st day of
July 2023.

__________________________________________
ERIC ANDERSON, PRESIDENT

__________________________________________
JOHN R. HAMMOND JR., COMMISSIONER

__________________________________________
EDWARD LODGE, COMMISSIONER

ATTEST:

___________________________________
Jan Noriyuki
Commission Secretary

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