2020033176-1 Memo in Support of Motion.pdf

MEMORANDUM IN SUPPORT OF 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 - 1
A. Dean Bennett (ISB #7735)
Zachary S. Zollinger (ISB #9259)
HOLLAND & HART LLP
800 West Main Street, Suite 1750
Post Office Box 2527
Boise, Idaho 83701-2527
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
FRANKLIN ENERGY STORAGE ONE, LLC,
FRANKLIN ENERGY STORAGE TWO, LLC,
FRANKLIN ENERGY STORAGE THREE, LLC,
FRANKLIN ENERGY STORAGE FOUR, LLC,

Plaintiffs,
v.

PAUL KJELLANDER, KRISTINE RAPER, and
ERIC ANDERSON, in their official capacity as
Commissioners of the IDAHO PUBLIC
UTILITIES COMMISSION,

Defendants.
and

IDAHO POWER COMPANY,

Defendant-Intervenor.

Case No. 1:18-cv-0236-REB

MEMORANDUM IN SUPPORT OF
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

Case 1:18-cv-00236-REB Document 76-1 Filed 03/31/20 Page 1 of 16

MEMORANDUM IN SUPPORT OF 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 - 2
Plaintiff Franklin Solar LLC (“Franklin Solar” or “Plaintiff”),1 by and through its
respective counsel of record, hereby moves this Court for an indicative ruling under Federal Rule
of Civil Procedure 62.1 that it would grant Plaintiff’s unopposed vacatur motion under Federal
Rule of Civil Procedure 60(b) if the Ninth Circuit Court of Appeals remanded this case under
Federal Rule of Appellate Procedure 12.1. This Motion is supported by the Declarations of
Robert Parrett (“Parrett Decl.”) and A. Dean Bennett (“Bennett Decl.”) and the records and
documents previously filed in this action.
CONFERRAL ON UNOPPOSED MOTION AND TIMING CONSIDERATIONS
As set forth in the Declaration of A. Dean Bennett (“Bennett Decl.”), Plaintiff’s counsel
conferred with Defendants Paul Kjellander, Kristine Raper and Eric Anderson in their official
capacities as Idaho Public Utility Commissioners (“the Commissioners”) and Defendant-
Intervenor Idaho Power Company (“Idaho Power”) prior to filing this Motion. The
Commissioners and Idaho Power do not oppose the relief sought herein. Bennett Decl. ¶ 2.
Plaintiff further informs the Court that there is some urgency in the parties obtaining a
ruling on this Motion. The Ninth Circuit Court of Appeals has set the appellate briefing
schedule, which currently requires opening briefs to be filed no later than May 26, 2020.
Plaintiff therefore respectfully requests this Court issue an indicative ruling on the Motion prior
to that deadline if feasible. Otherwise, the parties will seek to defer the briefing schedule
pending this Court’s consideration of the Motion in the interest of judicial and private
efficiencies. Bennett Decl. ¶ 3.

1 The named plaintiffs in this case, Franklin Energy Storage One, LLC, Franklin Energy Storage
Two, LLC, Franklin Energy Storage Three, LLC, and Franklin Energy Storage Four, LLC
(hereinafter the “Franklin Facilities”), were merged in April 2019 into Franklin Solar LLC
(“Franklin Solar”), as disclosed in the Notice of Merger and Name Change and Supplemented
Corporate Disclosure Statement Supplement filed with this Court on August 6, 2019 (Dkt. 61).
Case 1:18-cv-00236-REB Document 76-1 Filed 03/31/20 Page 2 of 16

MEMORANDUM IN SUPPORT OF 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 - 3
I. INTRODUCTION
Plaintiff seeks vacatur of this Court’s Memorandum Decision and Order: Re: Motions to
Dismiss and Cross-Motions for Summary Judgment (“Memorandum Decision”) (Dkt. 62) and
Judgment (Dkt. 63), and dismissal of this action in its entirety. The reason for the relief
requested is that this case is moot. There is no live controversy remaining for adjudication. On
February 13, 2020, only weeks after the Court issued its Memorandum Decision and entered
Judgment, Duke Energy Renewables Solar, LLC (“DER”) acquired Franklin Solar. For business
reasons entirely unrelated to this litigation, DER does not intend to construct or operate Franklin
Solar as four “Qualifying Facilities” as defined in 18 C.F.R. § 292.207(a), which was the
underlying subject matter of this lawsuit. Indeed, DER has formally withdrawn the Federal
Energy Regulatory Commission (“FERC”) Form 556 filings which self-certified the Franklin
facilities as Qualifying Facilities.
Both the Ninth Circuit and Supreme Court have held that the “established practice” on
similar facts is for this Court to vacate the Memorandum Decision and Judgment under Federal
Rule of Civil Procedure 60(b), and to dismiss the case with prejudice. Because the
Commissioners and Idaho Power have each filed Notices of Appeal (Dkts. 66, 67), this Court
currently lacks jurisdiction to hear Plaintiff’s Unopposed Motion for Vacatur. Plaintiff therefore
requests the Court enter an indicative ruling pursuant to Federal Rule of Civil Procedure 62.1,
indicating the Court will grant its Unopposed Motion for Vacatur, in order that the Ninth Circuit
can remand this case pursuant to Federal Rule of Appellate Procedure 12.1 for entry of vacatur.
II. PROCEDURAL BACKGROUND
Plaintiff filed this action against the Idaho Public Utilities Commission on May 30, 2018
(Dkt 1). On June 1, 2018, Plaintiff filed an Amended Complaint substituting as Defendants the
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MEMORANDUM IN SUPPORT OF 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 - 4
Commissioners in their official capacities (Dkt. 2). Idaho Power moved to intervene in the
action on July 3, 2018 (Dkt. 7), which motion was granted by the Court on August 17, 2018
(Dkt. 16). The Parties consented to the assignment of this case to Magistrate Judge Ronald Bush
to preside over all proceedings (Dkts. 15, 21).
On September 5, 2018, Plaintiff moved for summary judgment on all counts (Dkt. 24).
On October 26, 2018, Commissioners and Idaho Power moved to dismiss the Amended
Complaint and simultaneously cross-moved for summary judgment on all counts (Dkts. 39, 40,
42). All dispositive motions were fully briefed and pending following oral argument on
February 7, 2019 (Dkt. 60).
On January 17, 2020, the Court ruled on all outstanding dispositive motions in its
Memorandum Decision, granting in part Plaintiff’s motion for summary judgment and denying
the Commissioners’ and Idaho Power’s motions to dismiss and motions for summary judgment
(Dkt. 62). The Court entered Judgment in favor of Plaintiff on January 24, 2020 (Dkt. 63).
On February 14, 2020, Commissioners and Idaho Power filed notices of appeal to the
U.S. Court of Appeals for the Ninth Circuit styled Franklin Energy Storage One, LLC, et al. v.
IPUC, et al., No. 20-35144, and Franklin Energy Storage One, LLC, et al. v. Kjellander et al.,
No. 20-35146 (Dkts. 66, 67).
III. FACTUAL BACKGROUND
On February 13, 2020, DER consummated a purchase and sale transaction with
Alternative Power Development, Northwest, LLC, an Idaho-based renewable energy projects
developer (“APD”), in which DER acquired from APD all the equity interest in Franklin Solar.
Parrett Decl. ¶ 2. The purpose of the Franklin Solar acquisition was to proceed with the
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MEMORANDUM IN SUPPORT OF 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 - 5
development of a 100 megawatt (“MW”) solar photovoltaic electric generating facility in Twin
Falls County, Idaho. Id., ¶ 3.
During the course of its negotiations with APD, and prior to the acquisition closing, DER
learned Franklin Solar held conditional use permits for two development scenarios. The first
scenario was the development of a single solar photovoltaic electric generating facility, which
was DER’s planned use of Franklin Solar. The second scenario, which was of no interest to
DER, contemplated the development of four separate energy storage facilities. DER understood
that to preserve that development scenario, Franklin Solar had submitted Form 556 filings to the
Federal Energy Regulatory Commission (“FERC”) self-certifying the four proposed energy
storage facilities as Qualifying Facilities (“QF”s) under 18 C.F.R. § 292.207(a). Id., ¶¶ 4(a)-(b).
During the course of its negotiations with APD, DER also learned of this litigation. Because
DER had no interest in using Franklin Solar to pursue the development of energy storage QFs,
DER had planned to have Franklin Solar voluntarily dismiss this case upon closing of the
acquisition. However, this Court entered its Memorandum Decision (Dkt. 62) and Judgment
(Dkt. 63) before DER and APD consummated the transaction. Id., ¶ 5.
DER has no interest in pursuing Franklin Solar as energy storage QFs. Since DER
acquired Franklin Solar, Franklin Solar has formally abandoned the second development
scenario and has withdrawn the FERC Form 556 filings. Id., ¶ 6. DER and Franklin Solar
promptly informed the other parties to this case, the Commissioners and Idaho Power, of the
change in ownership, the withdrawal of the FERC Form 556 filings, and the plans to proceed
with the development of a 100 MW solar photovoltaic electric generating facility, which
undisputedly does not qualify as a QF. Id., ¶¶ 7, 8. Counsel for all parties conferred prior to the
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MEMORANDUM IN SUPPORT OF 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 - 6
filing of this motion, and respective counsel for the Commissioners and Idaho Power indicated
they do not oppose the relief sought herein. Bennett Decl. ¶ 2.
IV. ARGUMENT
A. THE ACQUISITION AND REPURPOSING OF FRANKLIN SOLAR HAS MOOTED THE
ISSUES IN THIS CASE.
Federal court jurisdiction depends on the existence of a “case or controversy” under
Article III of the Constitution. See, e.g., GTE Cal., Inc. v. Fed. Communications Comm’n,
39 F.3d 940, 945 (9th Cir.1994). “The usual rule in federal cases is that an actual controversy
must exist at stages of appellate or certiorari review, and not simply at the date the action is
initiated.” Roe v. Wade, 410 U.S. 113, 125 (1973) (citations omitted). In general, a case
becomes moot “when the issues presented are no longer ‘live’ or the parties lack a legally
cognizable interest in the outcome.” Murphy v. Hunt, 455 U.S. 478, 481 (1982) (quotation
marks and citations omitted). In the context of a request for declaratory relief, “the question in
each case is whether the facts alleged, under all the circumstances, show that there is a
substantial controversy, between parties having adverse legal interests, of sufficient immediacy
and reality to warrant the issuance of a declaratory judgment.” Public Utilities Comm’n of State
of Cal. v. F.E.R.C., 100 F.3d 1451, 1461 (9th Cir. 1996) (citations omitted). Because of DER’s
acquisition of Franklin Solar, DER’s withdrawal of the FERC Form 556 filings, and DER’s
intention not to construct or operate the at-issue facilities as QFs, no substantial controversy
exists.
The Amended Complaint sought the following relief: (1) “Declaratory and injunctive
relief directing Defendants to implement PURPA in a lawful manner by recognizing the QF
status of energy storage QFs as distinct from their energy input (source)”; and (2) “Declaratory
and injunctive relief directing Defendants to require the utilities under their jurisdiction to afford
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MEMORANDUM IN SUPPORT OF 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 - 7
energy storage QFs all rights and privileges afforded to ‘all other’ QFs – other than wind and
solar QFs.” (Dkt. 2).
In its Memorandum Decision, the Court granted the following relief:
a. The Court finds that the Defendant IPUC Commissioners
violated the Public Utility Regulatory Policies Act of 1978,16
U.S.C. §§ 2601 et seq., when they issued final order numbers
33785 on July 13, 2017 and 33858 on August 29, 2017. Such
orders established an implementation plan that impermissibly
classified the QF status of Plaintiffs’ energy storage facilities that
are certified under such Act as energy storage facilities.
Classifying such facilities as “solar QFs” is outside the
Commissioners’ authority as state regulators and therefore in
violation of federal law.
b. Defendants are permanently enjoined from enforcing or
applying either of such IPUC final orders to Plaintiffs’ facilities as
if such facilities are classified as something other than energy
storage QFs, to include but not be limited to classifying Plaintiffs’
facilities as if they are “solar QFs” under the IPUC’s prior
implementation plan. Defendants are further permanently enjoined
from considering the energy source input into Plaintiffs’ energy
storage QFs for the purpose of classifying the QFs in any way
other than as energy storage QFs.
(Dkt. 62 at 36-37).
The parties’ controversy, the relief requested, and the relief granted all became moot
when DER acquired Franklin Solar on February 13, 2020.2 While this case was pending and
before the Court issued its Memorandum Decision, DER entered into negotiations to acquire
Franklin Solar, which held permits for two alternative development scenarios: (1) four energy
storage facilities for which Plaintiff sought QF classification; or (2) a single solar power facility
which undisputedly did not qualify for QF status. Parrett Decl., ¶ 4(a)-(b). Although DER was
aware that Franklin Solar had sought QF status for the first scenario above and was litigating this

2 Had the acquisition closed prior to the Court’s Memorandum Decision and Judgment, DER
would have sought voluntary dismissal of Plaintiff’s claims on the basis of mootness. Parrett
Decl., ¶ 5.
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MEMORANDUM IN SUPPORT OF 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 - 8
case on that basis, both during negotiations and upon closing of the acquisition, DER never
intended to develop or operate Franklin Solar under the first scenario. Id.
Rather, for reasons wholly unrelated to this litigation, DER intended to – and continues to
intend to – develop and operate Franklin Solar as a single solar project. Id. ¶ 4(a), 8. Consistent
with that intent, following the acquisition, DER withdrew the FERC Form 556 filings self-
certifying the Franklin Facilities to be energy storage QFs. Id. ¶ 6. As such, there are no QFs to
be the subject of this lawsuit, and the action is moot. See Funbus Sys., Inc. v. State of Cal.
Public Utilities Comm’n., 801 F.2d 1120, 1131 (9th Cir. 1986) (“Because the issues in the
district court are thus no longer live and the parties now lack a legally cognizable interest in the
outcome of this case, the appeal from the district court’s order is moot.”).
B. BECAUSE THE CASE IS MOOT, THE DISTRICT COURT MAY VACATE ITS
MEMORANDUM DECISION AND JUDGMENT UNDER FEDERAL RULE OF CIVIL
PROCEDURE 60.
Upon “just terms, the court may relieve a party ... from a final judgment, order, or
proceeding” if it “(5) ... is no longer equitable; or (6) any other reason that justifies relief.” Fed.
R. Civ. P. 60(b)(5), (6). Rule 60(b) “does not particularize the factors that justify relief; [instead]
it provides courts with authority ‘adequate to enable them to vacate judgments whenever such
action is appropriate to accomplish justice.’” United States v. Washington, 98 F.3d 1159, 1163
(9th Cir. 1996). Indeed, Rule 60(b) specifically empowers a district court to vacate its own
judgment. Am. Games, Inc. v. Trade Prods., Inc., 142 F.3d 1164, 1168 (9th Cir.1998); see also
Bonner Mall, 513 U.S. 18, 29 (1994) (noting “a district court may vacate its own judgment if it
would be equitable to do so”). For the reasons set forth below, it would be equitable for the
Court to vacate the Memorandum Decision and Judgment and to dismiss this case.
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MEMORANDUM IN SUPPORT OF 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 - 9
The “established practice” to address a civil case that has become moot while pending
appeal is to vacate the judgment and dismiss the appeal. See United States v. Munsingwear, 340
U.S. 36, 39 (1950); Bonner Mall, 513 U.S. at 22. This is true notwithstanding the irreproachable
premise that “[j]udicial precedents are presumptively correct and valuable to the legal
community as a whole” and “should stand unless a court concludes that the public interest would
be served by a vacatur.” Bonner Mall, 513 U.S. at 27 (citation omitted). However, vacation of
decisions that become moot on appeal has been deemed in the public interest to “clear[] the path
for future relitigation of the issues between the parties,” preserving “the rights of all parties,”
while prejudicing none “by a decision which ... was only preliminary.” Alvarez v. Smith, 558
U.S. 87, 94 (2009) (quoting Munsingwear, 340 U.S. at 40). Said another way, “[t]he point of
vacatur is to prevent an unreviewable decision ‘from spawning any legal consequences,’ so that
no party is harmed by what we have called a ‘preliminary’ adjudication.” Camreta v. Greene,
563 U.S. 692, 713 (2011). Indeed, the practice is so established as to be “automatic” in
circumstances similar to this case. Dilley v. Gunn, 64 F.3d 1365, 1369 (9th Cir.1995) (citations
omitted). Where, as here, the circumstances causing mootness result from the actions of the
prevailing party and without regard for the litigation, vacatur is proper. See Public Utilities
Comm’n of State of Cal., 100 F.3d at 1461 (mootness resulting from the “‘unilateral action of the
party who prevailed below’ does require vacatur”) (emphasis in original) (quoting Bonner Mall,
513 U.S. at 22-23).
C. THERE ARE NO APPLICABLE EXCEPTIONS TO THE “ESTABLISHED PRACTICE”
OF VACATUR.
Both the Supreme Court and the Ninth Circuit have recognized an exception to the
“established practice” of vacating a then-moot judgment if “the party seeking appellate relief
fails to protect itself or is the cause of subsequent mootness.” Public Utilities Comm’n of State
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MEMORANDUM IN SUPPORT OF 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 - 10
of Cal., 100 F.3d at 1461 (emphasis in original) (citing Munsingwear, 340 U.S. at 40). The
rationale underlying this exception is that “a dissatisfied litigant should not be allowed to destroy
the collateral consequences of an adverse judgment by destroying his own right to appeal.”
Dilley, 64 F.3d at 1370 (quoting Allard v. DeLorean, 884 F.2d 464, 467 (9th Cir.1989)). This
legal principle was first articulated by the Ninth Circuit in Ringsby Truck Lines, Inc. v. Western
Conference of Teamsters.3 686 F.2d 720, 722 (9th Cir. 1982) (stating that an appellant who
moots his own appeal “is in no position to complain that his right of review of an adverse lower
court judgment has been lost”). When an appellant moots his or her own appeal, the district
court must “decide whether to vacate its judgment in light of ‘the consequences and attendant
hardships of dismissal or refusal to dismiss’ and ‘the competing values of finality of judgment
and right to relitigation of unreviewed disputes.’” Dilley, 64 F.3d at 1370-71 (collecting cases).
See also Ringsby, 686 F.2d at 722.
There can be no dispute that the rationale in Ringsby does not apply to this case.
Commissioners and Idaho Power have filed notices of appeal and have taken no action to moot
their appeals. The mootness of this lawsuit was caused solely by DER’s business decision to
pursue Franklin Solar as a single solar facility, instead of as four separate energy storage QFs.
Cf. Dilley, 64 F.3d at 1370 (“[A] litigant should not be bound by an adverse unreviewed
judgment when mootness results from unilateral action of the party who prevailed below.”
(quoting Bonner Mall, 513 U.S. at 391-92)).

3 Other circuits have also recognized that, after Bonner Mall, the first inquiry in assessing if
vacatur is appropriate is “whether the party seeking relief from the judgment below caused the
mootness by his own voluntary action.” See, e.g., Jones v. Temmer, 57 F.3d 921, 923 (10th Cir.
1995); Associated Gen. Contractors of Connecticut, Inc. v. New Haven, 41 F.3d 62, 67 (2d Cir.
1994).
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MEMORANDUM IN SUPPORT OF 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 - 11
Vacatur may also be “inapplicable” where a case is mooted by a settlement between the
parties. The rationale for potentially denying vacatur in such circumstances is that the “losing
party has voluntarily forfeited his legal remedy by the ordinary processes of appeal or certiorari,
thereby surrendering his claim to the equitable remedy of vacatur.” Bonner Mall, 513 U.S. at
25.4 See also Ringsby, 686 F.2d at 721 (“If the effect of post-judgment settlements were
automatically to vacate the trial court’s judgment, any litigant dissatisfied with a trial court’s
findings would be able to have them wiped from the books.”).
Contrast the situation here. The mootness of this case was not the result of any
settlement, and certainly not a settlement that voluntarily forfeited the legal remedy of an appeal.
The acquisition by DER of Franklin Solar was consummated on February 13, 2020, less than a
month after the Court’s Memorandum Decision and Judgment. Parrett Decl. ¶ 2. At all times
during negotiations and up through closing, DER intended to develop and operate Franklin Solar
as a single solar project and not as energy storage QFs. Parrett Decl. ¶¶ 3, 4(a)-(b), 5, 6. In
short, the Court’s Memorandum Decision and Judgment had no bearing on DER’s intended use
of Franklin Solar. Accord Security Bancorp v. Board of Governors of the Fed. Reserve Sys., 655
F.2d 164 (9th Cir. 1979), vacated by 454 U.S. 1118 (1981) (vacating judgment where case was
not rendered moot by settlement, but by appellant’s decision to merge with another bank rather
than become a bank holding company, which mooted the dispute regarding its application for
status as a bank holding company); Ringsby, 686 F.2d at 723 (discussing the Supreme Court’s

4 The parties in Bonner Mall, after having contested a legal question from bankruptcy court up
through the Supreme Court, agreed upon a reorganization plan that they stated would constitute a
settlement mooting the pending case. The Supreme Court did not vacate the lower court’s
judgment on the basis that mootness was not due to “the vagaries of circumstance,” id. at 25, but
rather the party seeking review had “caused the mootness by voluntary action.” id. at 24.
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MEMORANDUM IN SUPPORT OF 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 - 12
vacatur and remand in Security Bancorp and noting that “[s]ignificantly, appellant had prevailed
[in the case] but chose to pursue a different course of action which mooted the dispute”).
D. EVEN IF THE COURT APPLIES THE “EQUITABLE BALANCING TEST,” VACATUR
IS ALSO MERITED.
Where the Munsingwear “established practice” of automatic vacatur does not apply
because either the appellant mooted the circumstances of the case or the parties settled the case,
the Ninth Circuit directs district courts to conduct an “equitable balancing test” to determine
whether vacatur is nevertheless warranted. Am. Games, Inc., 142 F.3d at 1168. In doing so, the
court considers: (1) the consequences and hardships associated with vacatur or refusal to vacate;
(2) “the competing values of finality of judgment and right to relitigation of unreviewed
disputes”; and (3) the “motives of the party whose voluntary action mooted the case.” Id. at
1168-70 (quoting Dilley, 64 F.3d at 1370-71). Whether to grant such relief is discretionary with
the Court.5 Id. If the Court decides to apply the “equitable balancing test” in this case to
evaluate the propriety of vacatur – something Plaintiff believes the Court ought not do given the
relevant Supreme Court and Ninth Circuit precedent – the equities weigh in favor of vacatur.
First, the appellants in this case, Commissioners and Idaho Power, will suffer hardship if
this Court does not vacate its Memorandum Decision and Judgment. This is because the Ninth
Circuit lacks jurisdiction to hear the appeals since the case is moot. See Public Utilities Comm’n
of State of Cal., 100 F.3d at 1458 (“The court must be able to grant effective relief, or it lacks
jurisdiction and must dismiss the appeal.”). “The point of vacatur,” which “is to prevent an

5 “While the Supreme Court has stated that exceptional circumstances could support vacatur of a
judgment upon settlement by the parties, the Ninth Circuit has subsequently ruled that a district
court may vacate its own decision in the absence of extraordinary circumstances.” Quest
Integrity USA, LLC v. A.Hak Industrial Servs. US, LLC, 2019 WL 1572691, at *1 (W.D. Wash.
2019); Am. Games, Inc., 142 F.3d at 1169 (“According to the post-Bonner Mall Ninth Circuit
decisions, the district court below could have vacated its own judgment using Ringsby’s
equitable balancing test.”).
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MEMORANDUM IN SUPPORT OF 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 - 13
unreviewable decision from spawning any legal consequences,” can only be accomplished if the
Memorandum Decision and Judgment are vacated. See Camretta, 563 U.S. at 692. Further,
unless vacatur is granted, DER will suffer hardship because it will be forced to spend time and
resources briefing issues of which it has no interest to the Ninth Circuit, or otherwise briefing
issues related to mootness. Therefore, the hardships weigh in favor of vacatur.
Second, the declaratory relief sought and granted in this case is, by design, specific to the
parties on the facts as alleged in the Amended Complaint and as argued in the parties’ summary
judgment motions. DER’s intended development and operation of Franklin Solar is entirely
different from the development and operation contemplated by the Memorandum Decision.
While the parties respect the value of the finality of judgments and orderly procedure, any such
value is outweighed by the Commissioners’ and Idaho Power’s rights to relitigate live
controversies capable of appellate review. Dilley, 64 F.3d at 1370 (“[A] litigant should not be
bound by an adverse unreviewed judgment when mootness results from unilateral action of the
party who prevailed below.”).
Finally, DER’s motives in the acquisition, development, and use of Franklin Solar are
completely independent of and unrelated to this litigation. DER’s actions were not motivated by
a desire to avoid the collateral estoppel effect of the Memorandum Decision and Judgment. See
Ringsby, 686 F.2d at 723. Instead, even prior to standing in the shoes of the prevailing party to
this lawsuit, DER made the business decision to pursue Franklin Solar for use as a single solar
project. That mootness resulted from this straightforward business decision weighs in favor of
vacation of the Memorandum Decision and Judgment. See id.
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MEMORANDUM IN SUPPORT OF 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 - 14
E. THE COURT MAY PROPERLY ISSUE AN INDICATIVE RULING UNDER FEDERAL
RULE OF CIVIL PROCEDURE 62.1 IN ORDER TO INITIATE A REMAND BY THE
NINTH CIRCUIT UNDER ASSOCIATED FEDERAL RULE OF APPELLATE
PROCEDURE 12.1.
“The filing of a notice of appeal is an event of jurisdictional significance – it confers
jurisdiction on the court of appeals and divests the district court of its control over those aspects
of the case involved in the appeal.” Idaho Bldg. and Const. Trades Council, AFL-CIO v.
Wasden, 2013 WL 1867067, at *2 (D. Idaho 2013) (quoting Griggs v. Provident Consumer
Discount Co., 459 U.S. 56, 58 (1982)). However, Federal Rule of Civil Procedure 62.1 provides
district courts options for action when “a timely motion is made for relief that the court lacks
authority to grant because of an appeal that has been docketed and is pending.” Fed R. Civ. P.
62.1. Rule 62.1 thus allows the district court to inform the circuit court that it may have granted
relief on an underlying motion if a notice of appeal had not divested the district court of
jurisdiction. See Fed. R. Civ. P. 62.1(b). See also Fed. R. App. P. 12.1(a).
Upon the filing of a motion under Rule 62.1(a) seeking an “indicative ruling,” a district
court may: (1) defer consideration of the motion; (2) deny the motion; (3) indicate that it would
grant the motion if the court of appeals remands for that purpose; or (4) indicate that the motion
raises a substantial issue. Fed R. Civ. P. 62.1(a). See also Idaho Bldg., 2013 WL 1867067, at *2
(granting a motion for indicative ruling on the basis that it raises substantial issues). Rule 62.1
operates in conjunction with Federal Rule of Appellate Procedure 12.1, which provides that if the
district court, pursuant to Rule 62.1(a)(3), states that it would either grant the motion on remand
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.
Case 1:18-cv-00236-REB Document 76-1 Filed 03/31/20 Page 14 of 16

MEMORANDUM IN SUPPORT OF 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 - 15
12.1. Once the district court has decided the motion on remand, the parties then notify the circuit
clerk.6 Id.
The Commissioners and Idaho Power filed notices of appeal on February 14, 2020,
conferring jurisdiction on the Ninth Circuit Court of Appeals in this matter (Dkts. 66, 67).
Plaintiff therefore seeks an indicative ruling from this Court that it would grant the Unopposed
Motion for Vacatur if the Ninth Circuit remanded the case for that purpose, or alternatively, that
the Unopposed Motion for Vacatur raises substantial issues meriting further consideration by this
Court.
V. CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests the Court issue an indicative
ruling under Federal Rule of Civil Procedure 62.1 that it would grant the Unopposed Motion for
Vacatur under Federal Rule of Civil Procedure 60(b)(6) if the Ninth Circuit remanded the appeal
for this limited purpose under Federal Rule of Appellate Procedure 12.1(a). If possible, Plaintiff
respectfully seeks this relief in advance of the pending Ninth Circuit briefing schedule requiring
opening briefs to be submitted no later than May 26, 2020.
DATED this 31st day of March, 2020.
HOLLAND & HART LLP

By /s/ A. Dean Bennett
A. Dean Bennett, of the Firm
Zachary S. Zollinger, for the Firm
Attorneys for Plaintiffs

6 Even if the district court states that the motion raises a substantial issue for remand, it is not
bound to grant the motion on remand. See Committee Notes on Rules, Fed. R. Civ. P. 62.1.
Case 1:18-cv-00236-REB Document 76-1 Filed 03/31/20 Page 15 of 16

MEMORANDUM IN SUPPORT OF 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 - 16
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 31st day of March, 2020, I filed the foregoing
electronically through the CM/ECF system, which caused the following parties or counsel to be
served by electronic means, as more fully reflected on the Notice of Electronic Filing:
Brandon Karpen [e-mail]
Edward Jewell [e-mail]
Scott Zanzig [e-mail]
John P. Coyle [e-mail]
Steven B. Andersen [e-mail]
Christine R. Arnold [e-mail]
Donovan E. Walker [e-mail]

/s/ A. Dean Bennett
A. Dean Bennett for HOLLAND & HART LLP

Case 1:18-cv-00236-REB Document 76-1 Filed 03/31/20 Page 16 of 16