20200818Dkt 11 Joint Mtn to Dismiss_Remand.pdf

Nos. 20-35146/20-35144

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FRANKLIN ENERGY STORAGE ONE, LLC; FRANKLIN ENERGY
STORAGE TWO, LLC; FRANKLIN ENERGY STORAGE THREE, LLC;
FRANKLIN ENERGY STORAGE FOUR, LLC,
Plaintiffs - Appellees,
v.

PAUL KJELLANDER, in his official capacity as Commissioner of the Idaho
Public Utilities Commission; KRISTINE RAPER, in her official capacity as
Commissioner of the
Idaho Public Utilities Commission; ERIC ANDERSON, in his official
capacity as Commissioner of the Idaho Public Utilities Commission,

Defendants - Appellants.

and

IDAHO POWER COMPANY,

Defendant-Intervenor-Appellant.

On Appeal from the United States District Court
for the District of Idaho
No. 1:18-cv-00236-REB

APPELLANTS’ JOINT UNOPPOSED MOTION TO DISMISS
APPEALS
AS MOOT AND REMAND TO DISTRICT COURT WITH
INSTRUCTIONS TO
VACATE ITS ORDER AND DISMISS THE CASE

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Edward J. Jewell, ISB No. 10446
Karl T. Klein, ISB No. 5156
W. Scott Zanzig, ISB No. 9361
LAWRENCE G. WASDEN
ATTORNEY GENERAL
11331 W. Chinden Blvd. Bldg. 8,
Ste. 201-A
P.O. Box 83720
Boise, ID 83720-0074
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

Deputy Attorneys General
Idaho Public Utilities
Commission

Steven B. Andersen, ISB 2618
Jennifer S. Dempsey, ISB 7603
ANDERSEN SCHWARTZMAN
WOODARD DEMPSEY, PLLC
101 South Capitol Blvd., Ste. 1600
Boise, ID 83702-7720
Telephone: [phone]
Facsimile: (208).342-4455
[e-mail]
[e-mail]

Donovan E. Walker (ISB 5921)
IDAHO POWER COMPANY
1221 West Idaho Street (83702)
P. O. Box 70
Boise, ID 83707
Telephone: [phone]
Facsimile: 208.338.6936
[e-mail]

Attorneys for Idaho Power
Company

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APPELLANTS’ JOINT UNOPPOSED MOTION TO DISMISS APPEALS AS MOOT AND
REMAND TO DISTRICT COURT WITH INSTRUCTIONS TO VACATE ITS ORDER
AND DISMISS THE CASE - i

TABLE OF CONTENTS

Table of Authorities.……………………………………………………..................………. ii
Introduction .…………………………………………...............………………….1

Opposing Counsel Does Not Oppose this Motion ……………………….1

Request to Stay Briefing Schedule …………………………………………… 2

Background ………………………………………………………………………….. 2

Summary of Argument......................................................................6

I. Background on Rights and Requirements Established by PURPA
for QFs. …………...……………………...............................……………....7

II. This Case Is Moot Because There Is No Longer a Live Case or
Controversy. ……………………………………………..............................8

III. Because the Case Is Moot, This Court Should Vacate the District
Court’s Decision and Remand with Instructions to Dismiss...…11

IV. It Is Appropriate for This Court to Decide Subject Matter
Jurisdiction Is Lacking and to Vacate the District Court’s
Decision. ……………………...........................................………………14

V. Conclusion. …………………………...........………………………………….16

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AND DISMISS THE CASE - ii
TABLE OF AUTHORITIES

Cases

Akina v. Hawaii, 835 F.3d 1003 (9th Cir. 2016) ………………………………….10

Alliance for the Wild Rockies v. Savage, 897 F.3d 1025
(9th Cir. 2018)..…………………..............................................................13

Arizonans for Official English v. Arizona, 520 U.S. 43 (1997)..…………13, 14

Azar v. Garza, 138 S.Ct. 1790 (2018)..………………………………………………….13

Burke v. Barnes, 479 U.S. 361 (1987)..…………………………………………………..9

Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125
(9th Cir. 2005)(en banc)..………................................................…......8, 9

Moe v. U.S., 326 F.3d 1065 (9th Cir. 2003)..…………………………………………..8

NASD Dispute Resolution, Inc. v. Judicial Council of State of Calif., 488
F.3d 1065 (9th Cir. 2007).………………………………………..............………12

Princeton Univ. v. Schmid, 455 U.S. 100 (1982).…………………………………..10

Serv. E’ees Int’l Union of Healthcare Workers, 598 F.3d 1061, 1068 (9th
Cir. 2010)…………………………………………………………………………………………...8

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)..………...8

United States v. Munsingwear, Inc., 340 U.S 36 (1950)….…….1, 6, 11, 12, 14

U.S. Bancorp Mortg. Co. v. Bonner Mall Partnership,
513 U.S. 18 (1994)..………......................................................11, 12, 13-14

U.S. v. Hamburg-Amerikanische Packet-Fahrt-Actien Gesellschaft,
239 U.S. 466 (1916)..………………………………………….………………………11

West v. Sec’y of the Dep’t of Transp, 206 F.3d 920 (9th Cir. 2000)..………. 9
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United States Constitution

Art. III, s. 2, cl. 1. ....…………………………………………………………...................... 8

Statutes

16 U.S.C. § 824a-3(a). ………………………………………………………..................... 7

16 U.S.C. § 824a-3(f). ………………………………………………………….……………… 7

16 U.S.C. § 824a-3(h)(2)(B). ……………………………………………………….………. 3

Regulations

18 C.F.R. § 292.204. …………………….…………………………………………………….. 7

18 C.F.R. § 292.207. …………………………………………………………………………… 7

18 C.F.R. § 292.303. ……………………………………………………….………………….. 7

18 C.F.R. § 292.304. ……………………………………………….……..………………….. 8

Federal Rules of Appellate Procedure

Fed. R. App. P. 12.1. ……………………………………………………………….....….. 5, 15

Fed. R. App. P. 27. ……………………………………………………………………………… 5

Federal Rules of Civil Procedure

Fed. R. Civ. P. 62.1. ……………………………………………………………………….. 5, 14

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APPELLANTS’ JOINT UNOPPOSED MOTION TO DISMISS APPEALS AS MOOT AND
REMAND TO DISTRICT COURT WITH INSTRUCTIONS TO VACATE ITS ORDER
AND DISMISS THE CASE - 1

INTRODUCTION
All parties agree this dispute recently became moot when the Plaintiffs-
Appellees Franklin Energy Storage One, LLC, Franklin Energy Storage Two,
LLC, Franklin Energy Storage Three, LLC, and Franklin Energy Storage
Four, LLC (collectively, “Franklin Energy”) voluntarily canceled the energy
storage facility certifications that were the subject of the district court’s order
granting declaratory and injunctive relief against Defendants-Appellants
Paul Kjellander, Kristine Raper, and Eric Anderson, in their official capacity
as Commissioners of the Idaho Public Utilities Commission (collectively the
“Idaho PUC”), and Defendant-Intervenor-Appellant Idaho Power Company
(“Idaho Power”). Accordingly, this Court should dismiss the appeals of Idaho
PUC and Idaho Power as moot and remand to the district court with
instructions to vacate its final order and dismiss the case pursuant to United
States v. Munsingwear, Inc., 340 U.S. 36 (1950).
OPPOSING COUNSEL DOES NOT OPPOSE THIS MOTION
Counsel for Franklin Energy has advised counsel for the Idaho PUC
and counsel for Idaho Power that it does not oppose this motion.

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REQUEST TO STAY BRIEFING SCHEDULE
Because this motion requests dismissal of the appeals, the parties ask
that the briefing schedule be stayed pending the Court’s disposition of this
motion per Circuit Rule 27.11.
BACKGROUND
Idaho PUC and Idaho Power appealed a district court decision and
order granting summary judgment to Franklin Energy. Franklin Energy
alleged the Idaho PUC usurped the jurisdiction of the Federal Energy
Regulatory Commission (“FERC”) and violated the Public Utility Regulatory
Policies Act of 1978 (“PURPA”), 16 U.S.C. §§ 2601 et seq. (“PURPA”), when
the Idaho PUC issued Order Nos. 33785 and 33858. In Order No. 33785, the
Idaho PUC granted Idaho Power’s petition for a declaratory order regarding
proper contract terms, conditions, and avoided cost pricing for energy
storage facilities (Dkt. 4-6). The Idaho PUC determined that Franklin
Energy’s energy storage qualifying facilities (“QFs”) were entitled to the same
contract terms and rates as solar QFs because Franklin Energy’s energy
storage QFs would primarily store solar energy. In Order No. 33858, the
Idaho PUC denied Franklin Energy’s motion to reconsider Order No. 33785
(Dkt. 4-7).
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Upon receiving the Idaho PUC’s orders, Franklin Energy asked FERC
to bring a 16 U.S.C. § 824a-3(h)(2)(B) enforcement action against the Idaho
PUC in the district court.1 FERC declined and issued a “Notice of Intent Not
to Act.” Franklin Energy then filed their own enforcement action (Dkts. 1,
2).
On February 7, 2019, the district court heard the parties’ motions to
dismiss and cross-motions for summary judgment (Dkt. 60). The court then
took the parties’ motions under advisement.
On August 6, 2019, while the court was still considering the parties’
motions, the four Franklin Energy entities notified the court they had
merged into a new entity, Franklin Solar, LLC (“Franklin Solar”), which in
turn was owned by Alternative Power Development, Northwest, LLC (“APD”)
(Dkt. 61). On January 17, 2020, the district court issued a memorandum
decision granting partial summary judgment to the Franklin Energy entities
and denying the Idaho PUC’s and Idaho Power’s motions to dismiss and

1 This provision provides a QF the right to petition FERC to enforce its rules
implementing PURPA against a state regulatory authority such as the Idaho
PUC. If FERC chooses not to initiate an enforcement action against the state
regulatory authority, the petitioner may bring an action in the appropriate
district court to require the state regulatory authority to comply with FERC
regulations implementing PURPA. FERC may intervene as a matter of right
in such an action.
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motions for summary judgment (Dkt. 62). The district court entered its
judgment on January 24, 2020 (Dkt. 63).
About three weeks later, on February 13, 2020, APD sold Franklin
Solar—the entity into whom the four Franklin Energy entities had merged
and who was, therefore, the prevailing party below—to Duke Energy
Renewables, Solar, LLC (“Duke Energy”) (Dkts. 76-1 p. 3, 76-2 ¶ 2). At this
point, the ownership of Franklin Energy’s four energy storage QFs, and the
prevailing party below and real party in interest as the plaintiff-appellee in
these appeals, had changed as follows:

Franklin Energy Storage I, LLC

Franklin Energy Storage II, LLC
→ Franklin Solar, LLC → Duke Energy
Franklin Energy Storage III, LLC

Franklin Energy Storage IV, LLC

Duke Energy bought Franklin Solar intending to develop it as a single
100 megawatt (“MW”) solar facility instead of as four separate energy storage
QFs under PURPA as originally contemplated by Franklin Energy (Dkts. 76-
1, p.3, 76-2, ¶ 3). Duke Energy then canceled the QF self-certifications that
Franklin Energy had filed with the FERC (Dkts. 76-1, p.5, 76-2, ¶ 6).
On February 14, 2020, the day after Duke Energy bought the Franklin
Energy/Franklin Solar energy storage facilities, the Idaho PUC and Idaho
Power filed notices of appeal of the district court’s decision (Dkts. 67, 66).
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On March 31, 2020, Duke Energy filed with the district court an
“Unopposed Motion for Vacatur Due to Mootness Pursuant to Fed. R. Civ. P.
60(b), and Request for Indicative Ruling Pursuant to Fed. R. Civ. P. 62.1”
(Dkt. 76) as well as supporting affidavits (Dkts. 76-2, 76-3). The Idaho PUC
and Idaho Power filed notices of non-opposition to the motion (Dkts. 78, 79).
The district court found Duke Energy’s vacatur motion raised a
substantial issue under Rule 62.1(a)(3) but declined to state it would grant
vacatur due to mootness (Dkt. 81, p.7). Instead, the court relayed that “the
request for a finding of mootness and vacatur is best raised with the court of
appeals because the events alleged to have resulted in mootness occurred
after this Court issued its decision and judgment and because the current
record leaves questions about whether this case presents an ‘extraordinary
circumstance’ justifying vacatur (Dkt. 81, p.7).” On May 15, 2020, Duke
Energy filed a Notice Pursuant to Federal Rule of Appellate Procedure 12.1,
notifying this Court of the district court’s finding that the motion raised a
substantial issue.
Given the lack of a live controversy, Idaho PUC and Idaho Power now
bring this motion under Federal Rules of Appellate Procedure 12.1 and 27 to
dismiss these appeals as moot and remand to the district court with
instructions to vacate its order and dismiss the case.
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ARGUMENT
This case became moot due to the voluntary actions of the prevailing
party before the losing parties’ appeals could be heard. This Court therefore
should follow the “established practice” set forth in the Supreme Court’s
decision in Munsingwear by dismissing the appeals, “vacat[ing] the
judgment below, and remand[ing] with a direction to dismiss.” 340 U.S. at
38-40.
The district court found that the Idaho PUC violated PURPA by
determining that the Franklin Energy energy storage facilities were eligible
for the same contract terms and avoided cost rates as solar QFs. Because
Duke Energy has rescinded its self-certifications as energy storage QFs and
no longer intends to develop the project under the statutorily created rights
for small power developers established by PURPA, there is no longer a live
case or controversy. Because this action was mooted by the unilateral actions
of Duke Energy—the prevailing party below—this Court should vacate the
lower court’s decision and remand the case with instructions to dismiss it.
Vacating the district court’s opinion would not prejudice the rights of any
party and would clear the path for future litigation. These arguments are
further explained below.

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I. Background on Rights and Requirements Established by
PURPA for QFs.

PURPA is a federal statute that is implemented by FERC and the states.
Congress tasked FERC with prescribing “such rules as it determines
necessary to encourage cogeneration and small power production, and to
encourage geothermal small power production facilities of not more than 80
megawatts capacity[.]” 16 U.S.C. § 824a-3(a). Congress tasked the states
with implementing the FERC regulations. 16 U.S.C. § 824a-3(f). PURPA and
the FERC regulations provide several guarantees to QFs. A small power
producer becomes a QF by complying with the energy source requirements
and size requirements established by PURPA and FERC regulations and by
filing Form 556 with FERC. See 18 C.F.R. § 292.204 (defining the maximum
size of the QF and energy source requirements); 18 C.F.R. § 292.207
(establishing procedures for a small power producer to self-certify with
FERC that the small power producer meets the regulatory requirements for
being a QF).
Once a facility is a QF, the electric utility must purchase any energy
made available by the QF. 18 C.F.R. § 292.303. The electric utility must
purchase the QF’s output at “avoided cost rates” that are established by the
state regulatory authority pursuant to federal requirements that the rates be
just, reasonable, in the public interest, non-discriminatory, and not above
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the utility’s incremental costs. See 18 C.F.R. § 292.304. PURPA thus creates
protections and guarantees for QFs that are not available to other
independent power producers but also imposes restrictions and limitations
on QFs.
II. This Case Is Moot Because There Is No Longer a Live Case or
Controversy.

This Court should dismiss these appeals because it cannot “give the
appellant[s] any effective relief in the event that it decides the matter on the
merits in [their] favor.” Serv. E’ees Int’l Union of Healthcare Workers, 598
F.3d 1061, 1068 (9th Cir. 2010).
Subject matter jurisdiction concerns “the courts’ statutory or
constitutional power to adjudicate the case.” Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 89 (1998). “Jurisdiction is at issue in all stages
of a case.” Moe v. U.S., 326 F.3d 1065, 1070 (9th Cir. 2003). The federal
judiciary is limited to deciding “cases” or “controversies.” U.S. Constitution
Art. III, s. 2, cl. 1. “It is an inexorable command of the United States
Constitution that the federal courts confine themselves to deciding actual
cases and controversies.” Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125,
1128 (9th Cir. 2005) (en banc). “Where this condition is not met, the case
has become moot, and its resolution is no longer within our constitutional
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purview.” Id. at 1129. “[I]t is not enough that there may have been a live
case or controversy when the case was decided by the court whose judgment
we are reviewing.” Burke v. Barnes, 479 U.S. 361, 363 (1987). The “central
question” is “whether changes in the circumstances that prevailed at the
beginning of litigation have forestalled any occasion for meaningful relief.”
West v. Sec’y of the Dep’t of Transp., 206 F.3d 920, 925 n. 4 (9th Cir. 2000).
“The Supreme Court has repeatedly held that the requisite case or
controversy is absent where a plaintiff no longer wishes—or is no longer
able—to engage in the activity concerning which it is seeking declaratory
relief.” Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1129 (9th Cir.
2005) (en banc).
This matter began when Idaho Power petitioned the Idaho PUC for a
declaratory order clarifying the terms and avoided cost rates available to
Franklin Energy Storage One through Four (and one other energy storage QF
that is not party to these appeals). The Idaho PUC’s resulting Order Nos.
33785 and 33858 were the subject of the enforcement action Franklin Energy
subsequently filed in the district court.
The district court granted summary judgment to the Franklin Energy
entities. Franklin Solar could have benefited from the district court’s opinion
by exercising its rights as declared by the district court in regard to its energy
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storage QFs. Instead Franklin Solar was sold to Duke Energy, a company that
has no interest in pursuing the four separate energy storage QFs under
PURPA and has instead made the business decision to develop the facility as
a single 100 MW solar facility (Dkts. 76-1, p.5, 76-2, ¶ 6). Because Duke
Energy has revoked its FERC Form 556 self-certifications, Duke Energy is no
longer able or willing to engage in the activity for which declaratory relief was
sought.
Nor do these appeals fall within the exceptions to the mootness
doctrine for voluntary cessation of a challenged practice or for disputes that
are capable of repetition yet evading review. See Akina v. Hawaii, 835 F.3d
1003, 1010–11 (9th Cir. 2016). Both exceptions turn on the likelihood that
the behavior at issue could recur. But here, Duke Energy has made it clear
that it has no intention of developing the energy storage QFs. Accordingly,
“[a]ny opinion by this Court at this juncture would amount to an
impermissible advisory opinion.” Id. (citing Princeton Univ. v. Schmid, 455
U.S. 100, 102 (1982) (per curiam) (“We do not sit to decide hypothetical
issues or to give advisory opinions about issues as to which there are not
adverse parties before us.”)).

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III. Because the Case Is Moot, This Court Should Vacate the
District Court’s Decision and Remand with Instructions to
Dismiss.

This Court should vacate the district court’s decision and remand to
the district court with instructions to dismiss. Because this case is moot for
lack of a justiciable controversy, it is no longer equitable to hold the Idaho
PUC and Idaho Power to the district court’s decision. See Munsingwear, 340
U.S. at 40 (when vacatur is granted due to mootness, “the rights of all parties
are preserved; none is prejudiced by a decision which in the statutory scheme
was only preliminary.”).
Vacatur is an equitable remedy that requires the party seeking relief
from the lower court’s opinion to show it is entitled to that relief. “It is
petitioner’s burden, as the party seeking relief from the status quo of the
appellate judgment, to demonstrate not merely equivalent responsibility for
the mootness, but equitable entitlement to the extraordinary remedy of
vacatur.” U.S. Bancorp Mortg. Co. v. Bonner Mall Partnership, 513 U.S. 18,
26 (1994). “From the beginning we have disposed of moot cases in the
manner ‘‘most consonant to justice’ . . . in view of the nature and character
of the conditions which have caused the case to become moot.’” Id. at 25
(citing U.S. v. Hamburg-Amerikanische Packet-Fahrt-Actien Gesellschaft,
239 U.S. 466, 478 (1916)).
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Despite being an “extraordinary remedy,” the appellate courts’
longstanding practice is to vacate a lower court’s opinion that has become
moot before the appeals process is complete, subject to a few notable
exceptions that do not apply here. “The established practice of the Court in
the federal system which has become moot while on its way here or pending
our decision on the merits is to reverse or vacate the judgment below and
remand with a direction to dismiss.” Munsingwear, 340 U.S. at 39. “Under
the ‘Munsingwear rule,’ vacatur is generally ‘automatic’ in the Ninth Circuit
when a case becomes moot on appeal.” NASD Dispute Resolution, Inc. v.
Judicial Council of State of Calif., 488 F.3d 1065, 1070 (9th Cir. 2007).
Exceptions to the established practice of vacatur for mootness stem
from the appellant forfeiting their right to appeal either through voluntary
settlement or through failure to exercise their right to appeal, none of which
are present in this case. See Munsingwear, 340 U.S. at 36; Bonner Mall, 513
U.S. at 18. The courts have found it inappropriate to grant vacatur for
mootness where the appellant has slept on their rights or voluntarily
forfeited their rights. Mootness in this case is the result of the unilateral
actions of the party prevailing below and therefore none of the exceptions to
the established practice of vacatur for mootness apply.
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The prevailing party’s unilateral actions in mooting this case make the
case especially appropriate to vacate. “The principal condition to which we
have looked is whether the party seeking relief from the judgment below
caused the mootness by voluntary action.” Bonner Mall, 513 U.S. at 24.
When mootness is attributable to the unilateral actions of the prevailing
party below, it is a “clear example” of when vacatur is in order. Azar v.
Garza, 138 S.Ct. 1790, 1792 (2018) (citing Arizonans for Official English v.
Arizona, 520 U.S. 43, 71-72 (1997) (vacatur is appropriate “when mootness
occurs through happenstance—circumstances not attributable to the
parties—or, relevant here, the ‘unilateral action of the party who prevailed in
the lower court.’”) “When mootness is not caused by actions of the party
seeking vacatur, we typically will vacate the district court’s order.” Alliance
for the Wild Rockies v. Savage, 897 F.3d 1025, 1032 (9th Cir. 2018) (citation
omitted).
Here, the Idaho PUC and Idaho Power are the parties seeking relief
from the judgment below. Idaho PUC and Idaho Power, however, did
nothing to moot the case. Rather, the mootness was caused by the prevailing
party’s actions alone. The established practice of vacatur for mootness
caused by the prevailing party is thus appropriate here. “A party who seeks
review of the merits of an adverse ruling, but is frustrated by the vagaries of
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circumstance, ought not in fairness be forced to acquiesce in the judgment.”
Bonner Mall, 513 U.S. at 25. Vacatur “clears the path for future relitigation
of the issues between parties and eliminates a judgment, review of which was
prevented through happenstance.” Munsingwear, 340 U.S. at 40. “’It would
certainly be a strange doctrine that would permit a plaintiff to obtain a
favorable judgment, take voluntary action that moots the dispute, and then
retain the benefit of the judgment.’” Arizonans for Official English, 520 U.S.
at 75 (formatting omitted). Granting vacatur in this case would clear the path
for future relitigation without prejudicing any of the parties and without
violating the constitutional requirement of a live case or controversy.
IV. It Is Appropriate for this Court to Decide Subject Matter
Jurisdiction Is Lacking and to Vacate the District Court’s
Decision.

Federal Rule of Civil Procedure 62.1 provides parties the opportunity
to file a motion in district court, after a notice of appeal has been filed and
therefore the district court’s jurisdiction has been divested, requesting an
indicative ruling on a motion for relief that is barred by a pending appeal.
Plaintiffs-Appellees filed such motion for an indicative ruling with the
district court (Dkt. 76). Federal Rule of Civil Procedure 62.1(a) provides that
the district court may (1) defer considering the motion; (2) deny the motion;
or (3) state either that it would grant the motion if the court of appeals
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remands for that purpose or that the motion raises a substantial issue.” The
district court declined to state that it would grant the motion if it were before
it but did state that the motion raised a substantial issue (Dkt. 81, p.7).
Federal Rule of Appellate Procedure 12.1 governs remand after an indicative
ruling by the district court on a motion for relief that is barred by a pending
appeal. “If the district court states that it would grant the motion or that the
motion raises a substantial issue, the court of appeals may remand for
further proceedings but retains jurisdiction unless it expressly dismisses the
appeal. . . .” Fed. R. App. P. 12.1(b).
It is appropriate for this Court to vacate the district court’s opinion and
remand with instructions to dismiss, rather than simply remand the case for
the district court to make the determination in the first instance. The district
court stated that arguments regarding mootness are appropriately made to
the circuit court in this matter. “[T]he request for a finding of mootness and
vacatur is best raised with the court of appeals because the events alleged to
have resulted in mootness occurred after this Court issued its decision and
judgment and because the current record leaves questions about whether
this case presents an ‘extraordinary circumstance’ justifying vacatur.” (Dkt.
81, p.7). The district court also observed “that none of the cases relied upon
by Plaintiffs [in their motion for indicative ruling] involves a district court
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APPELLANTS’ JOINT UNOPPOSED MOTION TO DISMISS APPEALS AS MOOT AND
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vacating its own judgment due to mootness that arises while an appeal is
pending and without the appellate court weighing in.” (Dkt. 81, p.6). Finally,
the district court also stated, “Obviously, if the circuit court rules that
jurisdiction is lacking because of mootness and remands the matter back to
this Court for further action consistent with its order of remand, then this
Court will comply with that directive.” (Dkt. 81, p.7).
CONCLUSION
This is a clear case where vacatur for mootness is appropriate because
the lack of a live controversy is the result of the unilateral actions of the party
prevailing below. This Court should therefore determine that it does not
have subject matter jurisdiction to hear the merits of this case, vacate the
district court’s opinion, and remand with instructions to dismiss.
DATED this 25th day of June 2020.
LAWRENCE G. WASDEN
ATTORNEY GENERAL

/s/ Edward J. Jewell
Edward J. Jewell
Deputy Attorneys General
Idaho Public Utilities Commission
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APPELLANTS’ JOINT UNOPPOSED MOTION TO DISMISS APPEALS AS MOOT AND
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AND DISMISS THE CASE - 17
ANDERSEN SCHWARTZMAN
WOODARD DEMPSEY, PLLC

/s/ Jennifer S. Dempsey
Jennifer S. Dempsey
Attorneys for Defendant-Intervenor Idaho
Power Company

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APPELLANTS’ JOINT UNOPPOSED MOTION TO DISMISS APPEALS AS MOOT AND
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

9th Cir. Case Number(s) 20-35146/20-35144

I am one of the attorneys for the Idaho Public Utilities Commission.
This brief contains 3,387 words, excluding the items exempted by Fed. R.
App. P. 32(f). The brief’s type size and typeface comply with Fed. R. App. P.
32(a)(5) and (6).
I certify that this brief complies with the word limit of Cir. R. 32-1.

Signature s/Edward J. Jewell Date June 25, 2020

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APPELLANTS’ JOINT UNOPPOSED MOTION TO DISMISS APPEALS AS MOOT AND
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CERTIFICATE OF SERVICE
I hereby certify that on this 25th day of June, 2020, I caused a true
and correct copy of the foregoing document to be electronically filed with
the Clerk of the Court using the CM/ECF system, which sent a Notice of
Electronic Filing to the following persons:
A. Dean Bennett [e-mail]
Zachary S. Zollinger [e-mail]
John P. Coyle [e-mail]
Steven B. Anderson [e-mail]
Jennifer S. Dempsey [e-mail]
Donovan E. Walker [e-mail]

/s/ Edward J. Jewell
Edward J. Jewell

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