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Home My WebLink About20081216Motion to Strike.pdfBARTON L. KLINE, ISB #1526 LISA D. NORDSTROM, ISB #5733 DONOVAN E. WALKER, ISB #5921 Idaho Power Company P.O. Box 70 Boise, Idaho 83707 Telephone: (208) 388-2682 Facsimile: (208) 388-6936 bkline((idahopower.com Inordstrom((idahopower.com dwalker((idahopower.com \1'" r-Rl"CE' .f",1t: I ,L, c,' lUDa DEC t 6 PM 3: 35 IOAHO Fua.Liç~.ìn,,! UTILITIES COMl'¡H0';;¡'''''¡' Attorneys for Idaho Power Company Street Address for Express Mail: 1221 West Idaho Street Boise, Idaho 83702 BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION IN THE MATTER OF THE APPLICATION OF IDAHO POWER COMPANY FOR AUTHORITY TO INCREASE ITS RATES AND CHARGES FOR ELECTRIC SERVICE. ) ) MOTION TO STRIKE ) ) CASE NO. IPC-E-08-10 ) ) COMES NOW, Idaho Power Company ("Idaho Power" or the "Company) and hereby moves the Commission for a ruling that Exhibits Nos. 702 and 703, sponsored by Micron Technology's witness Dr. Peseau, constitute inadmissible hearsay testimony and should be stricken and not included as a part of the record in this proceeding. This Motion is based on the following: MOTION TO STRIKE - 1 1. In his direct testimony, Dr. Peseau is critical of the use of a future or forecasted test year. In support of his critique, he relies on the contents of two reports presented to the Iowa and Nevada legislatures by the Iowa Utilities Board and Nevada Public Service Commission, respectively. These reports were prepared in response to directives from the Nevada and Iowa legislatures that the two regulatory commissions discuss the pros and cons of various regulatory procedures. In the main, Dr. Peseau refers to these reports to provide context for his testimony on future test years. However, in one part of his testimony, Dr. Peseau goes beyond simply referring to these reports to provide context. Dr. Peseau offers them as evidence of the correctness of his allegations rather than presenting evidence in his own testimony to support his conclusions. This is hearsay testimony that the Commission cannot allow into the record in this case. 2. Black's Law Dictionary, Sixth Edition, describes hearsay testimony as follows: "A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Fed.R.Evid. 801(c)." 3. On page 7 of his testimony, Dr. Peseau discusses his assertion that allowing Idaho Power to utilize a forecasted test year wil encourage it to intentionally misstate its costs and revenues included in the forecasted test year. Dr. Peseau refers to this as "systemic bias." However, Dr. Peseau presents no evidence supporting his allegation that systemic bias flows from the use of forecast test years. Instead, on page 7, line 21, of his testimony, he claims it is "obvious" that "systemic bias" exists when future test years are used and then directs the Commission to look at Exhibits Nos. 702 MOTION TO STRIKE - 2 and 703 as the support for his contention that "systemic bias" exists. In so doing, Micron requests that the Commission accept inadmissible hearsay testimony. Dr. Peseau is presenting the two exhibits, Exhibits Nos. 702 and 703, to establish the truth of the matter asserted; i.e., that Idaho Power's proposed forecasted test year wil introduce "systemic bias." This is classic hearsay evidence and is an excellent example of why the rule of evidence prohibiting the use of hearsay testimony is necessary. Idaho Power is unable to cross-examine written reports prepared and presented in Iowa and Nevada several years ago. In addition, the Commission cannot ask questions or view the demeanor of the people that prepared the reports. There is nothing in Dr. Peseau's testimony that proves that "systemic bias" wil occur, only his conclusory statement that it is "obvious" and that the support for that conclusion that it is "obvious" is set out in Exhibits Nos. 702 and 703. 4. Idaho Power recognizes that the Commission's Rules allow the use of hearsay testimony which is not admissible in non-jury civil trials, for the purpose of determining facts, not reasonably susceptible of proof under the Idaho Rules of Evidence. (RP 261.) However, that exception to the ban on the use of hearsay testimony is not applicable here. For these reasons, the Commission should strike Exhibits Nos. 702 and 703 and the reference to them on page 7 of Dr. Peseau's testimony. Respectfully submitted this 16th day of December 2008. () '" BARTON L. KLINE Attorney for Idaho Power Company MOTION TO STRIKE - 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 16th day of December 2008 I served a true and correct copy of the within and foregoing MOTION TO STRIKE upon the following named parties by the method indicated below, and addressed to the following: Commission Staff Weldon B. Stutzman Deputy Attorney General Idaho Public Utilities Commission 472 West Washington P.O. Box 83720 Boise, Idaho 83720-0074 -2 Hand Delivered U.S. Mail _ Overnight Mail FAX _ Email Weldon.stutzmanCâpuc.idaho.gov Neil Price Deputy Attorney General Idaho Public Utilities Commission 472 West Washington P.O. Box 83720 Boise, Idaho 83720-0074 -2 Hand Delivered U.S. Mail _ Overnight Mail FAX _ Email Neil.price((puc.idaho.gov Industrial Customers of Idaho Power Peter J. Richardson, Esq. RICHARDSON & O'LEARY PLLC 515 North 2¡th Street P.O. Box 7218 Boise, Idaho 83702 -2 Hand Delivered U.S. Mail _ Overnight Mail FAX _ Emaillpeter((richardsonandolearv.com Dr. Don Reading Ben Johnson Associates 6070 Hil Road Boise, Idaho 83703 -2 Hand Delivered U.S. Mail _ Overnight Mail FAX _ Email dreading((mindspring.com Idaho Irrigation Pumpers Association, Inc. Randall C. Budge Eric L. Olsen RACINE, OLSON, NYE, BUDGE & BAILEY, CHARTERED P.O. Box 1391 201 East Center Pocatello, Idaho 83204-1391 -2 Hand Delivered U.S. Mail _ Overnight Mail FAX Email rcb((racinelaw.net elo((racinelaw.net MOTION TO STRIKE - 4 Anthony Yankel Yankel & Associates, Inc. 29814 Lake Road Bay Vilage, Ohio 44140 Kroger Co. I Fred Meyer and Smiths Michael L. Kurt Kurt J. Boehm BOEHM, KURTZ & LOWRY 36 East Seventh Street, Suite 1510 Cincinnati, Ohio 45202 The Kroger Co. Attn: Corporate Energy Manager (G09) 1014 Vine Street Cincinnati, Ohio 45202 Kevin Higgins Energy Strategies, LLC Parkside Towers 215 South State Street, Suite 200 Salt Lake City, Utah 84111 Micron Technology Conley Ward Michael C. Creamer GIVENS PURSLEY, LLP 601 West Bannock Street P.O. Box 2720 Boise, Idaho 83701-2720 Dennis E. Peseau, Ph.D. Utility Resources, Inc. 1500 Liberty Street SE, Suite 250 Salem, Oregon 97302 MOTION TO STRIKE - 5 -2 Hand Delivered U.S. Mail _ Overnight Mail FAX Email tony((yankel.net -2 Hand Delivered U.S. Mail _ Overnight Mail FAX Email mkurt((BKUawfirm.com kboehm((BKUawfirm .com -2 Hand Delivered U.S. Mail _ Overnight Mail FAX Email -2 Hand Delivered U.S. Mail _ Overnight Mail FAX Email khiggins((energystrat.com -2 Hand Delivered U.S. Mail _ Overnight Mail FAX Email cew((givenspursley.com mcc((givenspursley.com -2 Hand Delivered U.S. Mail _ Overnight Mail FAX Email dennvtemp((yahoo.com Department of Energy Lot R. Cooke Arthur Perry Bruder Offce of the General Counsel United States Department of Energy 1000 Independence Avenue SW Washington, DC 20585 Routing Symbol GC-76 Dwight D. Etheridge Exeter Associates, Inc. 5565 Sterrett Place, Suite 310 Columbia, MD 21044 Community Action Partnership Association Of Idaho Brad M. Purdy Attorney at Law 2019 North 1¡th Street Boise, Idaho 83702 Snake River Allance Ken Miler Snake River Allance P.O. Box 1731 Boise, Idaho 83701 MOTION TO STRIKE - 6 -2 Hand Delivered U.S. Mail _ Overnight Mail FAX Email Lot.Cooke((hg.doe.gov Arthur. Bruder((hg .doe. gov -2 Hand Delivered U.S. Mail _ Overnight Mail FAX Email detheridge((exeterassociates.com -2 Hand Delivered U.S. Mail _ Overnight Mail FAX Email bmpurdy((hotmail.com -2 Hand Delivered U.S. Mail _ Overnight Mail FAX _ Email kmiler((snakeriverallance.org ~~ Barton L. Kline