20081110GF Cogen Motion to Dismiss.pdf

RECEiVED
~r-=0Jr.E"lt PtL
Peter Richardson
l'llUlOV '0 PM 3: 35
\DAHO PUBLIC
UTIUT1ES COMMISSION
ATTORNEYS AT LAW
Tel: [phone] "Fax: [phone]
petetli richardso nan doleary. com
P.O. Box 7218 Boise,ID 83707 - 515 N. 27th St. Boise, ID 83702
10 November 2008
Ms. Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
472 W. Washington
Boise, ID 83702
RE: IPC-E-08-20
Dear Ms. Jewell:
We are enclosing an original and seven (7) copies of the GLENNS FERRY
COGENERATION PARTNERS, LTS.'S MOTION TO DISMISS FOR LACK OF
SUBJECT MATTER JURISDICTION in the above case.
A copy is included for stamping and returning to our office.
Sincerely,~,~è\\
Nina Curtis
Richardson & O'Leary PLLC
PETER J. RICAHRDSON (ISB # 3195)
MOLLY O'LEARY (ISB # 4996)
Richardson & O'Leary PLLC
515 North 2ih Street
P.O. Box 7218
Boise, Idaho 83707
Telephone: [phone]
Fax: [phone]
RECEIVED
200 HOY l 0 PM 3: 35
IDAHO PUL?,l!G
UTILITIES COMMISSION
Attorneys for Glenns Ferry Cogeneration Partners, Ltd.
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
IDAHO POWER COMPANY,
Complainant
)
) CASE NO. IPC-E-08-20
)
) GLENNS FERRY COGENERATION
)) PARTNERS, L TD.'S MOTION TO
) DISMISS FOR LACK OF SUBJECT
) MATTER JURISDICTION
)
vs.
GLENNS FERRY COGENERATION
PARTNERS, LTD., a Colorado limited
partnership
COMES NOW, Glenns Ferry Cogeneration Partners, Ltd. ("Respondent"I"Glenns
Ferry Cogeneration"), by and through undersigned counsel, and files this Motion to
Dismiss for Lack of Subject Matter Jurisdiction pursuant to Rule 12(b)(1) of the Idaho
Rules of Civil Procedure and Rule 56 of the Idaho Public Utilities Commission's Rules of
Procedure.
BACKGROUND
On October 16, 2008, Idaho Power Company filed a "Petition for Declaratory
Order and Formal Complaint for Breach of Contract" (herein "Complaint") with this
GLENNS FERRY. COGENERATION
MOTION TO DISMISS
Commission. In its Complaint, Idaho Power makes certain factual allegations and
concludes with a Prayer for Relief in which this Commission is asked to adjudicate
whether or not a certain contract has been breached and to further adjudicate that Idaho
Power is entitled to an award of damages as a remedy for said alleged breach of
contract.
In the body of its Complaint, Idaho Power asserts that this Commission has
jurisdiction over its breach of contract claim without reference to a single legal authority
supporting that assertion. The only authority Idaho Power references is the contract
itself - which, as discussed more fully below, cannot be used to bootstrap this
Commission's limited jurisdiction to expand into a court of general jurisdiction.
Glenns Ferry Cogeneration is responding to Idaho Power's Complaint with
this Motion to Dismiss for Lack of Subject Matter Jurisdiction. Should said Motion be
denied in part or in whole Respondent reserves the right to fully respond to each and
every allegation in Idaho Power's Complaint.
THE COMMISSION MUST DISMISS
FOR LACK OF SUBJECT MATTER JURISDICTION
Idaho Power filed its Complaint "pursuant to this Commission's Rules of
Procedure, including but not limited to RP 54 and RP 101." Both RP 54 (dealing with
Complaints) and RP 101 (dealing with Declaratory Orders) specifically require that the
referenced pleading identify the legal authority upon which the complaint or petition for
declaratory order is based. RP 54.02 requires a complaint to "refer to statutes, rules,
orders or other controlling law involved". Likewise RP 1 01.02(c) requires that a petition
for declaratory order "indicate the statute, order, rule or other controllng law" upon
GLENNS FERRY COGENERATION
MOTION TO DISMISS - 2
which the petitioner relies. Idaho Power's Complaint refers only to the contract as the
source of authority for this Commission's jurisdiction. In essence, at page 4 of its
Complaint, Idaho Power asserts that "The Commission has jurisdiction over this
dispute" because the contracting parties so deem. The Commission recognized this
flaw when it issued its order approving the contract for rate recovery purposes:
The Commission reminds the parties that jurisdiction may not be conferred on
the Commission by contractual stipulation. The authority and jurisdiction of the
Commission is restricted to that expressly and by necessary implication
conferred upon it by enabling statutes. The nature and extent of the Commission
jurisdiction to resolve actual disputes will be determined by the Commission on
an individual case-by-case basis notwithstanding paragraph 21.1 of the
Agreement.
Order No. 24674 at p. 3.
The Commission warned Idaho Power that contract disputes are the sole
province of the judiciary when it issued its order creating the security matrix that
underlies Idaho Power's contract with Glenns Ferry Cogeneration. In a docket entitled
"In the Matter of the Investigation on the Commission's own Motion of Reasonable
Terms for Security in Agreements Between Idaho Power Company and Cogenerators
and Small Power Producers" the Commission was clear that "Contract disputes and
interpretation in the event of alleged default or breach are normally appropriate for
judicial determination, not Commission determination." Order No. 21800 at p. 3.
As early as 1921, the Idaho Supreme Court made clear that the Commission only
has jurisdiction over public utilities:
(Y)et in every case before the Public Utilities Commission, it must in the first
instance determine from the evidence before it whether the utility with which it is
GLENNS FERRY COGENERATION
MOTION TO DISMISS - 3
seeking to deal is a public utility, for unless it be a public utility, the commission is
without any jurisdiction over ít whatsoever...
Natatorium Co. v. Erb, 34 Idaho 209,215,200 P. 348 (1921)
The Commission's jurisdiction is statutorily derived and cannot be expanded
without legislative action. "The Public Utilities Commission has no inherent power; its
powers and jurisdiction derives in its entirety from the enabling statutes, and nothing is
presumed in its jurisdiction." Lemhi Telephone Co. v. Mt. States Tele. & Tele, Co., 98
Idaho 692,696,571 P. 2d 753 (1.977). "The power which the Commission has is that
given by the legislature. It has no other. It exercises a limited jurisdiction; nothing is
presumed in favor of its jurisdiction. (Citations omitted). The general rule is stated in 42
Am.Jur. 440, § 109, as:
Administrative authorities are tribunals of limited jurisdiction. Their jurisdiction is
dependent entirely upon the provisions of the statutes reposing power in them;
they cannot confer it upon themselves, although they may determine whether
they have it. If the provisions of the statutes are not met and complied with, they
have no jurisdiction."
Arrow Transportation Co. v. Idaho Public Utilties Comm'n, 85 Idaho 307,313-314,379
P.2d 422 (1963), citing Malone v. Van Etten, 67 Idaho 294, 178 P.2d 382, 383; In the
Matter of the Jurisdiction of the Oregon P. U. C., 201 Or. 1, 268 P .2d 605; 42 Am. Jur.,
Pub.Ad.Law., secs. 109, 157; I.C. § 61-808; 49 U.S.C. §312(a).
The enabling statute for the Commission is clear and unequivocal, and narrowly
circumscribes the Commission's jurisdiction:
61-501. INVESTMENT OF AUTHORITY. The public utilities commission
is hereby vested with power and jurisdiction to supervise and regulate
every public utility in the state and to do all things necessary to carry out
the spirit and intent of the provisions of this act.
I.C. § 61-501 (emphasis supplied). The express scope of the Public Utilities Law is
limited to the supervision and regulation of public utilities in Idaho. There is no provision
GLENNS FERRY COGENERATION
MOTION TO DISMISS - 4
in the Public Utilities Law that requires or permits the Commission to interpret or enforce
civil contracts, and such authority is not "necessary" to carry out the "spirit and intent" of
the Commission's regulatory and supervisory authority over public utilities.
The Idaho Supreme Court has ruled on the question of the Commission's
jurisdiction to interpret and/or enforce private contracts on several occasions throughout
the past three decades. As was the case in Lemhi Telephone Company v. Mountain
States Telephone, the issue presented here by Idaho Power's Complaint is "in all
manners one callng for the interpretation and enforcement of the parties' contractual
rights." Lemhi Telephone Co. v. Mt. States Tele. & Tele. Co., 98 Idaho at 696. The
Supreme Court held in that case:
Generally, construction and enforcement of contract rights is a matter which lies
in the jurisdiction of the courts and not the Public Utilities Commission. This is
true notwithstanding that the parties are public utilties or that the subject matter
of the contract coincides generally with the expertise of the commission. If the
matter is a contractual dispute, it should be heard by the courts.
Id., citing New York, Susquehanna & Western R. Co. v. Follmer, 254 F.2d 510 (3d Cir.
1958); Gibson v. City Telephone Co., 411 P.2d 551 (OkI.1966); Sydnor Pump and Well
Co. v. Taylor, 201 Va. 311, 110 S.E.2d 525 (1959); Appalachian Power Co. v. John
Stewart Walker, Inc., 214 Va. 524, 201 S.E.2d 758 (1974); Katz Drug Co. v. Kansas
City Power and Light Co., 303 S.W.2d 672.
Similarly, in Bunker Hil Co. v. Washington Water Power Co., 101 Idaho 493,
494; 616 P. 2d 292 (1980), the Idaho Supreme Court held that:
Here, as in Lemhi, the parties' dispute arises from differing constructions
and interpretations of the contract rights of the parties. While one of the parties is
a public utility, and while the general area of power supply may be one in which
the Commission is presumed to have expertise, nevertheless, the matter remains
a contractual dispute involving the legal interpretation of a contract which
historically lies within the jurisdiction of the courts. Hence, no jurisdiction is
GLENNS FERRY COGENERATION
MOTION TO DISMISS - 5
vested in the Public Utilities Commission and the refusal of the Commission to
grant Bunker Hil's motion to dismiss was error.
Based on the foregoing, there can be no dispute that the Commission lacks
jurisdiction over the subject matter of Idaho Power's Complaint and, as the Commission
correctly noted in its Order No. 24674, the parties cannot contractually confer such
jurisdiction upon the Commission.
WHEREFORE, Respondent respectfully prays that the Commission dismiss
Idaho Power's Complaint for lack of subject matter jurisdiction. Respondent stands
ready for oral argument on its Motion if the Commission so desires.
DATED this -- day of November, 2008.
GLENNS FERRY COGENERATION
MOTION TO DISMISS - 6
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 10th day of November, 2008, I caused a
true and correct copy of the MOTION TO DISMISS FOR LACK OF SUBJECT MATTER
JURISDICTION TO THE IDAHO PUBLIC UTILITIES COMMISSION to be served by the
method indicated below, and addressed to the following:
Jean Jewell
Secretary
Idaho Public Utilities Commission
472 W Washington Street
Boise ID 83702
Bruce C Jones
Jones & Schwartz PLLC
1673 N Shoreline Dr Ste 200 (83702)
PO Box 7808
Boise ID 83707-7808
bruceßijonesandschwartlaw.com
( ) U.S. Mail, Postage Prepaid
(X) Hand Delivered
( ) Overnight Mail
( ) Facsimile
( ) Electronic Mail
(X) U.S. Mail, Postage Prepaid
( ) Hand Delivered
( ) Overnight Mail
( ) Facsimile
( ) Electronic Mail
SignedCJLt\\ÚJ~\
Nina Curtis
GLENNS FERRY COGENERATION
MOTION TO DISMISS - 7