Response to IPCo Motion to Dismiss Appeal.doc

JOHN R. HAMMOND
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
472 W. WASHINGTON (83702-5983)
BOISE, ID 83720-0074
Tele: [phone]
Idaho Bar No. 5470
FAX: [phone]

Attorneys for the Respondent, Idaho Public Utilities Commission

IN THE SUPREME COURT OF THE STATE OF IDAHO

IN THE MATTER OF JAY HULET’S
COMPLAINT REGARDING IDAHO
POWER COMPANY’S IRRIGATION BUY-
BACK PROGRAM
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SUPREME COURT
DOCKET NO. 28262

IPUC CASE NO. IPC-E-01-25

IDAHO PUBLIC UTILITIES
COMMISSION’S RESPONSE
TO IDAHO POWER
COMPANY’S MOTION TO
DISMISS APPELLANT’S
APPEAL
JAY HULET,

Complainant/Appellant,

v.

IDAHO PUBLIC UTILITIES COMMISSION,

Respondent on Appeal,

and

IDAHO POWER COMPANY,

Respondent/Respondent on Appeal,
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COMES NOW Respondent on Appeal, Idaho Public Utilities Commission (“IPUC”) pursuant to Idaho Appellate Rule 32(d) and respectfully submits its response in opposition to Idaho Power Company’s Motion to Dismiss Appellant’s Appeal.

I.
BACKGROUND
On June 19, 2001, Jay Hulet (“Hulet”) filed a formal complaint with the IPUC requesting that it order Idaho Power to accept his farm near Oreana, Idaho into its 2001 Irrigation Load Reduction Program (“Program”). R. at 1-7. See also R. at 118-46. Hulet’s Complaint contained two counts. Id. The first was that Idaho Power representatives on several occasions falsely represented to him that he was not eligible to submit a bid into the Program because of his unpaid power bills. R. at 4. Hulet claimed he did not submit a bid for his Oreana farm because of these representations. Id. The second was that Idaho Power released his account information to third parties without his authorization. R. at 5. In his request for relief Hulet asked the IPUC to order Idaho Power to accept his Oreana farm into its Program. R. at 6. Idaho Power filed an answer denying all material allegations of Hulet’s Complaint. R. at 11-14.
On September 28, 2001, the IPUC issued Order No. 28860 that contained its findings and decision regarding Hulet’s Complaint. R. at 24-30. The IPUC found it had consistently denied previous requests to submit late bids into the Program because to do so would violate the anti-discrimination provisions of Idaho Code § 61-315. R. at 28-29. The IPUC reasoned it must rule on Hulet’s Complaint similarly. R. at 29. The IPUC also found it had no statutory authority to award damages so it could not compensate Hulet even if Idaho Power had inappropriately released his account information to a third party. Id. Based on these findings the IPUC dismissed Hulet’s Complaint in its entirety. Id.
On October 11, 2001, Hulet filed a timely Petition for Reconsideration with the IPUC. R. at 33-37. Hulet first alleged that the IPUC erroneously issued Order No. 28860 without a hearing and that on this ground alone it should rescind Order No. 28860. R. at 34. Second, Hulet contended that the IPUC erroneously determined that there was no valid reason for his failure to submit a bid for his Oreana farm into Idaho Power’s Program. R. at 35. Specifically, Hulet argued that the dismissal of his Complaint based on Idaho Code § 61-315 was improper because his case was distinguishable from previous cases. Id. Thus, Hulet contended that Idaho Power discriminated against him because it provided him with false information that prevented him from submitting bids into the Program. Id. Based on these arguments Hulet requested that the IPUC rescind Order No. 28860 and consider his substantive claims against Idaho Power by proper procedures (i.e., prehearing conference, discovery and a hearing).
On November 8, 2001, the IPUC issued Order No. 28992. R. at 48-49. In this Order the IPUC did not rescind Order No. 28860 as requested, but granted Hulet reconsideration for the purpose of holding an evidentiary hearing to reconsider the allegations raised in his Complaint and logically the arguments raised in his Petition. R. at 48. An evidentiary hearing was held on January 15, 2002. R. at 52. On February 12, 2002, the IPUC reaffirmed its earlier dismissal of Hulet’s Complaint in Order No. 28950. R. at 102-11. The IPUC found that, “Mr. Hulet has failed to present sufficient evidence to demonstrate that the Commission should vacate Order No. 28860 as to Count I of his Complaint. Accordingly, his Complaint shall remain dismissed in its entirety.” R. at 110. In the ordering paragraphs of this Order the IPUC stated:
THIS IS A FINAL ORDER ON RECONSIDERATION.  Any party aggrieved by this Order or other final or interlocutory Orders previously issued in this Case No. IPC-E-01-25 may appeal to the Supreme Court of Idaho pursuant to the Public Utilities Law and the Idaho Appellate Rules.  See Idaho Code § 61-627.

R. at 111.
On February 15, 2002, Hulet filed a Notice of Appeal with the Idaho Supreme Court raising four issues on appeal. R. at 112-14.
II.
ARGUMENT
Order No. 29050 is the IPUC’s Final Order on Reconsideration because it did not raise new issues, denied the remaining grounds of Hulet’s Petition and reaffirmed the dismissal of his Complaint by Order No. 28860.

It is well settled that in an appeal from an IPUC decision, matters not raised in a petition for reconsideration may not be raised for the first time on appeal. Key Transp., Inc. v. Trans Magic Airlines Corp., 96 Idaho 110, 112-113, 524 P.2d 1338, 1340-41 (1974). In order to satisfy this rule a party must file a petition for reconsideration pursuant to Idaho Code § 61-626. Reconsideration provides an opportunity for an aggrieved person to bring to the IPUC’s attention any issue previously determined and provides it with an opportunity to rectify any mistake or omission. Idaho Code § 61-626; Washington Water Power v. Kootenai Environmental Alliance, 99 Idaho 875, 591 P.2d 122 (1979). The IPUC’s Procedural Rule 31.01.01.331.01 requires that, “[p]etitions for reconsideration must set forth specifically the ground or grounds why the petitioner contends that the order or any issue decided in the order is unreasonable, unlawful, erroneous or not in conformity with the law.”
IPUC orders on reconsideration are afforded a degree of finality similar to that possessed by judgments made by a court of law. Utah-Idaho Sugar Company v. Intermountain Gas Company, 100 Idaho 368, 373, 597 P.2d 1058, 1063 (1979) citing Idaho Code § 61-625. Any party aggrieved by issuance of a decision on reconsideration may appeal to the Idaho Supreme Court by filing a notice of appeal. Idaho Code § 61-627. To not enforce these authorities would lead to endless consideration of matters previously presented to the IPUC and confusion about the effectiveness of its orders. Utah-Idaho Sugar Company, 100 Idaho at 373-374, 597 P.2d 1063-64.
Idaho Power contends that Hulet’s appeal should be dismissed because he did not file a petition for reconsideration after Order No. 29050 was issued. In support of its argument Idaho Power alleges that the only relief Hulet requested in his Petition was that the IPUC hold an evidentiary hearing to consider the substantive allegations of his Complaint. The Company argues because this request was granted Hulet obtained the “full relief” he was seeking in his Petition. Thus, any appeal of Order No. 28860 was essentially moot. The Company then contends that once Order No. 29050 was issued Hulet had to file another petition for reconsideration, alleging assignments of error, prior to the filing of an appeal.
The IPUC disagrees with Idaho Power’s characterization of the record in this case and its position that Hulet’s appeal should be dismissed. In support of IPUC’s position a discussion of the record and the pleadings in it is helpful.
If the conclusion of Hulet’s Petition for Reconsideration is read in isolation the reader might believe that the only relief requested was the granting of an evidentiary hearing. R. at 36. However, a closer reading of the entire Petition shows that Hulet requested further relief. Specifically, Hulet requested that Order No. 28860 be rescinded, alleging that the IPUC had erroneously determined that there was no valid excuse for his failure to submit a bid for his Oreana farm into Idaho Power’s Program. R. at 35-36. By inference it is also clear that after recission of this Order Hulet desired the IPUC to order Idaho Power to include his Oreana farm in the Irrigation Load Reduction Program. As discussed above, Hulet raised arguments to support this allegation. Id. The IPUC believes that this was the “full relief” Hulet desired. Accordingly, Idaho Power’s contention that Hulet’s request for a hearing was the “full relief” he sought on reconsideration is unsupported by the content of the Petition itself.
In resolving Hulet’s Petition the IPUC essentially had to make three decisions, the first two being separated from the last. First, the IPUC had to determine whether to reconsider its decision in Order No. 28860 based on the arguments raised in Hulet’s Petition and if so by what procedure would it accomplish this task. See Idaho Code § 61-626(2). In this regard the IPUC determined that it was necessary to reconsider its decision in Order No. 28860 and that an evidentiary hearing was necessary to resolve his allegations raised on reconsideration. R. at 48. The last decision was to determine whether the “full relief” requested on reconsideration, recission of Order No. 28860 and ultimately whether Idaho Power would be ordered to accept Hulet’s farm into the Program, should be granted. After the evidentiary hearing and receipt of all post hearing briefs the IPUC issued Order No. 29050 that reaffirmed Order No. 28860, its previous dismissal of his Complaint. In other words the IPUC denied the relief Hulet was seeking in his Petition for Reconsideration, rescission of this Order and inclusion into Idaho Power’s Program. Accordingly, Order No. 29050 was the Final Order on Reconsideration because the IPUC was resolving only the remaining allegations contained in Hulet’s Petition for Reconsideration. Consistent with its intention to enter a final order on reconsideration the IPUC also advised the parties that any party aggrieved by this Order could appeal to the Idaho Supreme Court pursuant to Idaho Code § 61-627. R. at 111.
By focusing on the procedural relief accorded Hulet, Idaho Power ignores that the hearing on reconsideration had a substantive purpose. The IPUC convened the hearing to consider Hulet’s evidence on those issues he believed the IPUC erred on when it dismissed his Complaint. If it had not the hearing would have been a mere formality, and a classic elevation of procedure over substance. Based on this record it is clear that Hulet has already presented his assignments of error to the IPUC through his Petition for Reconsideration of Order No. 28860. The IPUC considered these issues at the evidentiary hearing and declined to rescind its dismissal of his Complaint. Thus, the “full relief” he sought on reconsideration was denied. Accordingly, further reconsideration is unwarranted. To dismiss his appeal now and require another petition for reconsideration to be filed would be cumulative and serve no purpose other than delaying the final resolution of this matter. Accordingly, Idaho Power’s Motion should be denied.
III
CONCLUSION
For the foregoing reasons, IPUC respectfully requests that Idaho Power’s Motion to Dismiss Hulet’s appeal be denied.

RESPECTFULLY SUBMITTED this day of June 2002.

John R. Hammond
Deputy Attorney General

Attorney for the Idaho Public Utilities Commission

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Mr. Hulet did not seek reconsideration on Count II of his Complaint. Thus, on reconsideration the IPUC only considered the allegations regarding Count I. R. at 103.
The IPUC viewed Hulet’s request for a hearing as the procedure he desired the IPUC to use to resolve the remaining allegations raised in his Petition for Reconsideration of Order No. 28860. IDAPA 31.01.01.331.03. See also R. at 36.

Because no new issues were raised or addressed in this Order, Hulet need not file a second petition for reconsideration prior to filing an appeal. For this reason this case is distinguishable from Consumers’ Co., Ltd. v. Public Util. Comm., 40 Idaho 772, 236 P.2d 732 (1925).

IPUC’S RESPONSE TO
IDAHO POWER’S MOTION 7