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Home My WebLink About20181018Stipulated Statement of Facts.pdfCase 1:18-cv-00236-REB Document 37 Filed 10/18/18 Page L of 7 Steven B. Andersen (ISB 2618) s bu (t ),u.\ v' h I u\'. L' o t t t Wade L. Woodard (tSB 63 12) v' I v' (0,us v' b I u v'. c o trt AI\DERSEN SCHWARTZMAN wooDARD BRAILSFORD, PLLC 101 South Capitol Boulevard, Suite 1600 Boise, ID 83702-7720 Telephone: 208.342.441 I Facsimile: 208.342.4455 Donovan E. Walker (ISB 5921) d v' u I ke r(Q,i d a h op ou' e r. c o nt IDAHO POWER COMPANY 1221 West Idaho Street (83702) P. O. Box 70 Boise,lD 83707 Telephone: 208.388.53 1 7 Facsimile: 208.388.6936 Attorneys for Defendant-Intervenor ldaho Power Company FRANKLIN ENERGY STORAGE ONE, LLC, FRANKLIN ENERGY STORAGE TWO, LLC, FRANKLIN ENERGY STORAGE THREE, LLC, FRANKLIN ENERGY STORAGE FOUR, LLC, rdaho Public utilities commission Office ol the Secretary RECEIVED ocT r I 2018 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO Boise,ldaho Dr s t E- t8'a I Case No.: 1 : I 8-cv-00236-REB STIPTJLATED STATEMENT OF FACTS AND LEGAL ISSUES Plaintiffs, VS. PAUL KJELLANDER, KzuSTINE RAPER and ERIC ANDERSON, in their official capacity as Commissioners of the IDAHO PUBLIC UTILITIES COMMISSION, Defendants, and, IDAHO POWER COMPANY, Defendant- Intervenor, STIPULATED STATEMENT OF FACTS AND LEGAL ISSUES - I Case L:18-cv-00236-REB Document 37 Filed 10/1-8/18 Page 2 ot 7 The parties, by and through their respective counsel of record and in compliance with the Court's September 4,2018 Minute Entry (Dkt.22),hereby respectfully submit the following Stipulated Statement of Facts and Legal Issues. The parties agree that the submission of this document does not constrain the parties from submitting additional facts and./or legal issues in their respective filings with the Court. A. STIPULATED STATEMENT OF FACTS The facts upon which the parties have stipulated are as follows: 1. Plaintiffs, Franklin Energy Storage One, LLC, Franklin Energy Storage Two, LLC, Franklin Energy Storage Three, LLC and Franklin Energy Storage Four, LLC (collectively "Plaintiffs"), are each battery storage facilities whose primary energy source is solar power. Each of Plaintiffs' four battery storage facilities has a nameplate design capacity of 32,000 kilowatts, is located on the same site and is being developed by Alternative Power Development, LLC. 2. Defendants, Paul Kjellander, Kristine Raper and Eric Anderson, are each Commissioners of the Idaho Public Utilities Commission ("IPUC"). 3. DefendanGlntervenor, Idaho Power Company ("Idaho Power"), is a public electric utility company that is regulated by the IPUC and the Public Utility Commission of Oregon and that is subject to the provisions of the Public Utility Regulatory Policies Act of 1978. 4. In January 2017, Plaintiffs each filed a Form 556, entitled "Certification of Qualifying Facility (QF) Status for a Small Power Production or Cogeneration Facility" (ooForm 556"), with the Federal Energy Regulatory Commission ("FERC"), in which they each self- certified thernselves to be battery storage Qualifying Facilities ("QF"). 5. ln late January 2017, Plaintiffs each submitted to Idaho Power their respective Schedule 73 Qualifying Facility Energy Sales Agreement Request ("Schedule 73"), along with STIPULATED STATEMENT OF FACTS AND LEGAL ISSUES - 2 Case 1:18-cv-00236-REB Document 37 Filed 10/18/18 Page 3 of 7 their Form 556 and a generation output profile. ln their respective Schedule 73 applications, Plaintiffs each requested published avoided cost rates, Rate Option No. 4, Non-Levelized Non- Fueled Rates, and a 20-year contract. 6. On February 9, 2017, Michael Darrington of Idaho Power sent Peter Richardson, Plaintiffs' counsel, a letter in which Mr. Darrington addressed Plaintiffs' four Schedule 73 applications. 7. On February 10,2017, Mr. Richardson sent Mr. Darrington a letter responding to his February 9, 2017, letter. 8. On February 27, 2017 , Mr. Darrington sent Mr. Richardson a letter responding to his February 10, 2017, letter. 9. On February 27 , 2017 , Idaho Power filed a Petition for Declaratory Order with the IPUC pertaining to Plaintiffs' four Schedule 73 applications, which was assigned Case No. IPC- E-r7-01. 10. OnJuly 13,2017, theIPUC issuedOrderNo.33785 inCaseNo. IPC-E-I7-01, in which it issued its ruling on Idaho Power's Petition for Declaratory Order. ll. On August 3,2017, Plaintiffs filed a Petition for Reconsideration of the IPUC's OrderNo.33785. 12. On August 29,2017, the IPUC issued Order No. 33858 in Case No. IPC-E-17-01, in which it issued its ruling on Plaintiffs' Motion for Reconsideration. 13. To date, Plaintiffs have not appealed either IPUC OrderNo. 33785 or 33858 to any state court in ldaho, including the Idaho Supreme Court. STIPULATED STATEMENT OF FACTS AND LEGAL ISSUES - 3 Case l-:18-cv-00236-REB Document 37 Filed l-0/18/18 Page 4 ot 7 14. On December 14,2017 , Plaintiffs filed a Petition for Declaratory Order and Petition for Enforcement Pursuant to Section 210(h) of the Public Utility Regulatory Policies Act of 1978 with FERC, which was assigned Docket No. EL 18-50-000. 15. On February 15, 2018, FERC issued a Notice of lntent Not to Act in Docket No. EL 18-50-000. 16. On May 30, 2018, Plaintiffs commenced the instant lawsuit by filing their Complaint for Violation of the Federal Power Act, the Public Utilities Regulatory Policies Act of 1978, and Federal Energy Regulatory Commission Regulations. 17. To date, no party has challenged or disputed Plaintiffs' QF status before FERC or any other administrative or legal tribunal. 18. All parties agree that Plaintiffs' QF status is a matter exclusively within FERC's jurisdiction. B. LEGAL ISSUES The parties cannot agree on the legal issues to be decided by this Court. The Defendants and Defendant-lntervenor submit that the subject legal issues are: 1. Whether this matter is founded with proper subject matter jurisdiction; 2. Whether Plaintiffs' claims are time-barred; 3. Whether the IPUC's orders have preclusive effect; and 4. Whether the IPUC, in ruling upon Idaho Power's Petition for Declaratory Order through Order Nos. 33785 and 33858, improperly determined Plaintiffs' QF status, thereby intruding upon FERC's exclusive jurisdiction in violation of the Public Utility Regulatory Policies Act of 1978. STIPULATED STATEMENT OF FACTS AND LEGAL ISSUES - 4 Case 1:18-cv-00236-REB Document 37 Filed 1-0/18/18 Page 5 of 7 Plaintiffs agree that issue number 4 is to be decided by this Court but do not join in issue numbers 1 through 3. In addition, Plaintiffs maintain that this Court must also decide the following 1sSUe: "Since PURPA preempts the IPUC from determining QF status, may the IPUC and Idaho Power properly deny 20-year energy sales and purchase agreement rights of the four Plaintiffs as Qualifuing Facilities ("QF"), which rights are vested in them under PURPA" Defendants and Defendant-Intervenor cannot stipulate to this particular legal issue because they do not believe that it accurately reflects the law. Dated: October 18,2018 RICHARDSON ADAMS, PLLC /s/ Peter J. Richardson Peter J. Richardson Attorneysfor Plaintffi Dated: October 18,2018 R. HUNTLEY LAW, PLLC /s/ Robert C. Huntlev Robert C. Huntley At t orn ey s fo r P I ain t iffs [Remaining signatures on the following page] STIPULATED STATEMENT OF FACTS AND LEGAL ISSUES - 5 Case 1:1-8-cv-00236-REB Document 37 Filed l-0/18/18 Page 6 of 7 Dated: October 18,2018 IDAHO PUBLIC UTILITIES COMMISSION /s/ BrsudoaKqrpea Brandon Karpen Attorneys for Defendants Paul Kjellander, Kristine Raper and Eric Anderson, in their fficial capacity as Commissioners of the ldaho Public Utilities Commission Dated: October 18,2018 AIIDERSEN SCHWARTZMAN WOODARI) BRAILSFORD, PLLC /s/ Steven B. Andersen Steven B. Andersen Attorneys for Defendant-Intervenor ldaho Power Company STIPULATED STATEMENT OF FACTS AND LEGAL ISSUES - 6 Case l-:18-cv-00236-REB Document 37 Filed 10/18/1-8 Page 7 ot 7 CERTIFICATE OF SERVICE I hereby certify that on this l8th day of October, 2018, I caused a true and correct copy of the foregoing document to be electronically filed with the Clerk of the Court using the CN{/ECF system, which sent a Notice of Electronic Filing to the following persons: p et er(@ ri ch ardsonadam s. com rhuntely@ huntl eyl aw. com brandon.kamen@puc. idaho. sov scott.zanzi e@ ag. idaho. eov lsl Steven B. Andersen Steven B. Andersen Peter J. Richardson Robert C. Huntley Brandon Karpen ScottZarzig STIPULATED STATEMENT OF FACTS AND LEGAL ISSUES - 7