20181026Memo in Support of Mtn to Strike 38-3.pdf

DEFENDANT-INTERVENOR’S MEMORANDUM IN SUPPORT OF ITS MOTION TO
STRIKE THE DECLARATION OF ROBERT A. PAUL IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [DKT. 29-3]
Steven B. Andersen (ISB 2618) [e-mail]
Wade L. Woodard (ISB 6312)
[e-mail] ANDERSEN SCHWARTZMAN WOODARD BRAILSFORD, PLLC 101 South Capitol Boulevard, Suite 1600
Boise, ID 83702-7720
Telephone: [phone] Facsimile: 208.342.4455 Donovan E. Walker (ISB 5921)
[e-mail] IDAHO POWER COMPANY 1221 West Idaho Street (83702) P. O. Box 70 Boise, ID 83707
Telephone: [phone]
Facsimile: 208.388.6936
Attorneys for Defendant-Intervenor Idaho Power Company
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,
vs.
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-00236-REB
DEFENDANT-INTERVENOR’S MEMORANDUM IN SUPPORT OF ITS MOTION TO STRIKE THE DECLARATION OF ROBERT A. PAUL
IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [DKT. 29-3]
Case 1:18-cv-00236-REB Document 38-3 Filed 10/26/18 Page 1 of 5
DEFENDANT-INTERVENOR’S MEMORANDUM IN SUPPORT OF ITS MOTION TO
STRIKE THE DECLARATION OF ROBERT A. PAUL IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [DKT. 29-3] - 1
Defendant-Intervenor Idaho Power Company (“Idaho Power”), by and through its counsel
of record, hereby submits this Memorandum in Support of its Motion to Strike the Declaration of
Robert A. Paul in Support of Plaintiffs’ Motion for Summary Judgment [Dkt. 29-3].
I. BACKGROUND
On September 5, 2018, Plaintiffs filed their Motion for Summary Judgment and supporting
documents, including the Declaration of Robert A. Paul. (See Dkts. 29, 29-1, 29-2, 29-3 and 29-
4.) In his declaration, Mr. Paul gives his “estimates” on the costs associated with constructing
Plaintiffs’ four battery storage facilities and his personal opinions on whether two year contracts
with Idaho Power for those facilities would “defeat[] the articulated national policy to encourage
alternative energy development,” would make obtaining financing for their construction difficult
and would make their construction fiscally irresponsible. (See Dkt. 29-3.) Plaintiffs do not cite to
or rely upon Mr. Paul’s declaration in their Brief in Support for Motion for Summary Judgment.
(See Dkt. 29-1.)
II. ARGUMENT
A. Standard Applicable to Summary Judgment Motions and the Documents Submitted in Support Thereof It is well-established that “[a] trial court can only consider admissible evidence in ruling
on a motion for summary judgment.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir.
2002). In line with this rule, any “affidavit or declaration used to support…a motion [for summary
judgment] must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.
R. Civ. P. 56(c)(4).
To be admissible, all of the following must be true: (1) the evidence must be relevant; (2)
the evidence must not constitute inadmissible hearsay; (3) the witness offering the evidence must
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DEFENDANT-INTERVENOR’S MEMORANDUM IN SUPPORT OF ITS MOTION TO
STRIKE THE DECLARATION OF ROBERT A. PAUL IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [DKT. 29-3] - 2
be competent to testify as to the matters, meaning he or she, among other things, must have
personal knowledge of the matters; and (4) a lay witness must not be providing improper opinion
testimony. Fed. R. Evid. 401, 402, 601, 602, 701, 801, 802. With respect to relevance, evidence
is relevant if it “has any tendency to make a fact more or less probable than it would be without
the evidence” and “the fact is of consequence in determining the action.” Fed. R. Evid. 401.
B. This Court Should Strike Mr. Paul’s Inadmissible Declaration
In his declaration, Mr. Paul discusses his history with solar energy projects and, based upon
that history and experience, declares in pertinent part as follows:
6. I estimate the total cost to construct and bring to commercial
operation for each project to be approximately $47,000,000 (forty-
seven million dollars). The grand total of the costs for all four projects combined will be approximately $188,000,000 (one hundred and eighty-eight million dollars).
7. In my experience, expertise, and opinion, it would be fiscally
irresponsible, and imprudent, to promote a project(s) of such magnitude under a contract to purchase the energy produced of only two year’s duration.
8. A contract of such short duration would make procurement
of financing extremely difficult, if not impossible, to obtain. Such an impediment certainly defeats the articulated national policy to encourage alternative energy development.
(Dkt. 29-3, ¶¶ 6-8.)
These paragraphs, along with the remainder of Mr. Paul’s declaration, are inadmissible for
various reasons. First, as confirmed by the fact that Plaintiffs did not cite to Mr. Paul’s declaration
anywhere in its entire Brief in Support of Motion for Summary Judgment, the information
contained in Mr. Paul’s declaration is irrelevant to the matters at issue in this case in general or in
Plaintiffs’ motion in particular. As alleged by Plaintiffs in their operative Complaint, the issue is
whether the Idaho Public Utilities Commission (“IPUC”), in ruling upon Idaho Power’s Petition
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DEFENDANT-INTERVENOR’S MEMORANDUM IN SUPPORT OF ITS MOTION TO
STRIKE THE DECLARATION OF ROBERT A. PAUL IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [DKT. 29-3] - 3
for Declaratory Relief as to the rates and contract terms Plaintiffs are eligible for under the IPUC’s
scheme for implementing the Public Utility Regulatory Policies Act of 1978 (“PURPA”),
improperly intruded upon the exclusive jurisdiction of the Federal Energy Regulatory Commission
by determining Plaintiffs’ Qualifying Facility (“QF”) status. (See Dkt. 2; see also Dkt. 29, 29-1.)
Nothing contained in Mr. Paul’s declaration is even remotely relevant to evaluating whether the
IPUC determined Plaintiffs’ QF status and, as such, it is inadmissible.
Additionally, Mr. Paul’s conclusion as to the estimated costs for constructing Plaintiffs’
four battery storage facilities, without any factual support for that conclusion, and his personal
opinions on (1) the fiscal irresponsibility of constructing such a project if Plaintiffs are only eligible
for a two year PURPA contract with Idaho Power; (2) Plaintiffs’ ability to procure financing for
the project if the contracts are limited to two years; and (3) whether that impediment “defeats the
articulated national policy to encourage alternative energy development” are all inadmissible for
other reasons. For example, these statements constitute inadmissible hearsay and improper
opinion testimony by a lay witness. Finally, Mr. Paul is not competent, nor does he have the
requisite personal knowledge, to testify to these statements. As such, this Court should strike Mr.
Paul’s declaration in its entirety or, at the very least, should strike paragraphs 6 through 8 therein.
III. CONCLUSION
Based upon the foregoing, Idaho Power respectfully requests that this Court strike the
Declaration of Robert A. Paul in its entirety. In the alternative, Idaho Power respectfully requests
that this Court strike paragraphs 6 through 8 of that declaration.

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DEFENDANT-INTERVENOR’S MEMORANDUM IN SUPPORT OF ITS MOTION TO
STRIKE THE DECLARATION OF ROBERT A. PAUL IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT [DKT. 29-3] - 4
DATED this 26th day of October, 2018.
ANDERSEN SCHWARTZMAN
WOODARD BRAILSFORD, PLLC /s/ Steven B. Andersen
Steven B. Andersen
Attorneys for Defendant-Intervenor Idaho Power Company CERTIFICATE OF SERVICE
I hereby certify that on this 26th 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 CM/ECF
system, which sent a Notice of Electronic Filing to the following persons:
Peter J. Richardson [e-mail] Robert C. Huntley [e-mail] Brandon Karpen [e-mail] Scott Zanzig [e-mail]

/s/ Steven B. Andersen
Steven B. Andersen

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