20230811Order_No_35889.pdf

ORDER NO. 35889 1
Office of the Secretary
Service Date
August 11, 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

ORDER NO. 35889

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
ORDER NO. 35889 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.
Order No. 35855
On July 21, 2023, the Commission issued a Notice of Petition for Declaratory Judgment
and Notice of Evidentiary Hearing. Order No. 35855. The order provides in relevant part:
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 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.
ORDER NO. 35889 3
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.
Order No. 35855 at 4.
Party Filings
On July 31, 2023, United filed a Hearing Brief and the direct testimony of Michael T.
Darrington. On July 31, 2023, Burley filed an Evidentiary Hearing Brief.
United’s Motions
On August 3, 2023, United filed motions (“Motions”) to: (1) strike Burley’s Evidentiary
Hearing Brief in its entirety; (2) admit on the record Mr. Michael T. Darrington’s direct testimony;
(3) vacate the Evidentiary Hearing scheduled for August 14, 2023; and (4) requesting an order
finding that the Suntado Facility is being constructed on property that is wholly located within
United’s exclusive service territory.
1. Procedure on Motions
United requests that the Commission issue its order granting the motions on less than
fourteen days’ notice. United represents that it has complied with Commission Rule of Procedure
Rule 256 by personally informing all parties of the pendency of these Motions and of United’s
request for substantive and procedural relief on less than fourteen days’ notice.
2. Strike Burley’s Brief
United argues that Burley’s pleading affirmatively disregards Order No. 35885’s explicit
ground rules and fails to even mention the question of where the Facility is located in relation to
the parties’ respective service territory boundaries, which is the sole purpose of the evidentiary
hearing and required briefing. Motions at 4.
3. Vacate Hearing
United argues that Burley has failed to make any offer of proof on the sole question at hand
and has ignored the Commission’s directive to address the single question relevant to the
evidentiary hearing. Id. at 7-8. United believes that an evidentiary hearing is unnecessary in light
ORDER NO. 35889 4
of Burley’s failure to address the sole issue identified in Order No. 35855 and failure to proffer a
scintilla of evidence countering United’s showing that the Suntado Facility is wholly located
within United’s exclusive service territory. Id. at 8.
4. Admit Darrington Testimony
United argues that Mr. Darrington’s testimony directly addresses the singular factual
dispute at issue by providing a solid evidentiary foundation for the admission of and reliance on
Exhibits 6 and 12 from United’s Complaint, which provide graphics (maps) as well as narrative
descriptions of the location of the Suntado Facility in relation to the existing electric service
territory boundaries between United and Burley. Motions at 6.
United contends that Mr. Darrington’s testimony is the only offer of proof on the singular
question at issue in this phase of this proceeding, and United requests that should the Commission
grant United’s motion to vacate the evidentiary hearing, the Commission admit Mr. Darrington’s
testimony into the record as proof of the location of the Suntado Facility in relation to the electric
service territory boundaries between Burley and United. Id.
5. Evidentiary Finding Order
Based upon the above arguments, United requests that the Commission make a finding of
fact that the Suntado Facility is wholly located within United’s exclusive service territory. Id. at
9-10.
Decision Meeting
On August 8, 2023, the Commission considered United’s Motions at the Commission’s
decision meeting. During the meeting, the Commission found that United complied with
Commission Rule of Procedure Rule 256 with respect to the timing of United’s Motions. The
Commission found that Burley’s Evidentiary Hearing Brief did not present any substantive or
evidentiary information on the issue of the physical location of the Facility and did not comply
with the requirements of Order No. 35855. The Commission noted that the majority of Burley’s
Evidentiary Hearing Brief was duplicative of Burley’s previously filed Answer and Petition. Based
on its findings, the Commission granted United’s Motions. The Commission now issues this order
in conformity with those decisions.1

1 On August 10, 2023, two days after the Commission had already considered the Motions, Burley filed an objection
to United’s Motions. The Commission notes that Burley agreed with vacating the Evidentiary Hearing and admitted
that the Facility is located within United’s service territory.
ORDER NO. 35889 5
ORDER
IT IS HEREBY ORDERED that United’s Motion to Strike is granted.
IT IS FURTHER ORDERED that United’s Motion to vacate the Evidentiary Hearing is
granted.
IT IS FURTHER ORDERED that United’s Motion to admit Mr. Darrington’s direct
testimony is granted.
IT IS FURTHER ORDERED that United’s Motion for an order finding that the Suntado
Facility is wholly located within United’s exclusive service territory is granted.
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.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this 11th day of
August 2023.

__________________________________________
ERIC ANDERSON, PRESIDENT

__________________________________________
JOHN R. HAMMOND JR., COMMISSIONER

__________________________________________
EDWARD LODGE, COMMISSIONER

ATTEST:

___________________________________
Jan Noriyuki
Commission Secretary

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