20091006Motion to Strike.pdf

Scott D. Spears, ISB # 4180
Ada County Highway District
3775 Adams Street
Garden City, Idaho 83714
Office: [phone]
Fax: [phone]
sspears (g achd.ada.id. us
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2009 OCT -6 PH 2= or.
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BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION OF
IDAHO POWER COMPANY FOR AUTHORITY
TO MODIFY ITS RULE H LINE EXTENSION
TARIFF RELATED TO NEW SERVICE
ATTACHMENTS AND DISTRIBUTION LINE
INSTALLATIONS.
)
)
) CASE NO. IPC-E-08-22
)
) ADACOUNTY
) HIGHWAY DISTRICT'S
) MOTION TO STRIKE
) ALL OR PORTIONS OF
) WRITTEN TESTIMONY
) OF SCOTT D. SPARKS,
) DAVID R. LOWRY,
) AND GREGORY W. SAID
)
)
COMES NOW, the ADA COUNTY HIGHWAY DISTRICT (hereinafter "ACHD"), in
accordance with the Idaho Public Utilities Commssion's Rules of Procedure (hereinafter "RP")
56, 250, 256, 261 and 266 and hereby moves the Commssion for an Order striking all or
portions of the prepared written testimony of Scott D. Sparks, David R. Lowry, and Gregory W.
Said submitted in support of Idaho Power's Application in the above entitled case. For the
following reasons, ACHD moves the Commssion to strike in its entirety, the unsworn written
testimony of Scott D. Sparks, David R. Lowry, and Gregory W. Said or in the alternative, certain
portions of the testimony of David R. Lowry, and Gregory W. Said as identified hereunder.
ADA COUNTY HIGHWAY DISTRICT'S MOTION TO STRIKE ALL OR PORTIONS
OF WRITTEN TESTIMONY OF SCOTT D. SPARKS, DAVID R. LOWRY, AND
GREGORY W. SAID
i
44805.0001.1678354.1
I.
STANDARD OF ADMISSIBILITY
Idaho Code § 61-601 specific all y provides that hearings of the Commssion are not
bound by the Idaho Rules of Evidence but that they governed by the Idaho Public Utilities Law
and rules of practice and procedure adopted by the Commssion. Section 61-601 states:
All hearings and investigations before the commssion or any
commssioner shall be governed by this act and by rules of practice and
procedure to be adopted by the commssion, and in the conduct thereof
neither the commssion nor any commssioner shall be bound by the
technical rules of evidence. (Emphasis added.)
Commssion Rules 250, 261 and 266 establish the standards of admissibilty, which
compel the exclusion of the Direct Testimony of Scott D. Sparks, David R. Lowry and Gregory
W. Said in this proceeding.
RP 250 expressly requires that all testimony in formal Commssion hearings be given
under oath. The Rule provides:
All testimony presented in formal hearings wil be given under oath. Before
testifying each witness must swear or affirm that the testimony the witness wil
give before the Commssion is the truth, the whole truth and nothing but the truth.
(Emphasis added.)
RP 261 provides as follows:
The presiding officer at hearing is not bound by the Idaho Rules of
Evidence. No informality in any proceeding or in the manner of takng
testimony invalidates any order made, approved or confirmed by the
Commssion. Rules as to the admissibilty of evidence used by the district
courts of Idaho in non-jury civil cases are generally followed, but evidence
(including hearsay) not admissible in non-jury civil cases may be admitted
to determne facts not reasonably susceptible of proof under the Idaho
Rules of Evidence. The presiding offcer, with or without objection, may
exclude evidence that is irrelevant, unduly repetitious, inadmissible on
constitutional or statutory grounds, or inadmissible on the basis of any
evidentiary privilege provided by statute or recognized in the courts of
Idaho, and order the presentation of such evidence to stop. All other
evidence may be admitted if it is a type generally relied upon by prudent
ADA COUNTY HIGHWAY DISTRICT'S MOTION TO STRIKE ALL OR PORTIONS
OF WRITTEN TESTIMONY OF SCOTT D. SPARKS, DAVID R. LOWRY, AND
GREGORY W. SAID
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persons in the conduct of their affairs. The Commssion's expertise,
technical competence and special knowledge may be used in the
evaluation of the evidence. (Emphasis added.)
RP 266 provides that a witness's previously prepared and distributed testimony may be
incorporated into the transcript of the hearing as if read, subject to the admissibilty requirements
of RP 261. RP 266 provides as follows:
The presiding officer may order a witness's prepared testimony previously
distributed to all paries to be incorporated in the transcript as if read if
timely fied pursuant to an order, notice or rule requiring its filing before
hearing. Without objection, the presiding officer may direct other
prepared testimony to be incorporated in the transcript as if read.
Admissibility of prepared testimony is subject to Rule 261. (Emphasis
added).
Under the foregoing law, it is clear that in order to be admissible, evidence and testimony
presented in this proceeding must be in compliance with the rules of the ipUc. The Direct
Statements of Scott D. Sparks, David R. Lowry and Gregory W. Said do not comply with RP
250, 261 and 266 and they must be stricken.
II.
UNSWORN TESTIMONY OF SCOTT D. SPARKS, DAVID R. LOWRY,
AND GREGORY W. SAID MUST BE STRICKEN
The unsworn Direct Testimony of Scott D. Sparks, David R. Lowry, and Gregory W.
Said is inadmissible because it does not comply with RP 250. Moreover, it is well established
that even in administrative hearngs, unsworn testimony is inherently unreliable, incompetent,
and lacking any evidentiary value. In Gibraltar Mausoleum Corporation v. City of Toledo et aI,
106 Ohio App.3d 80, 665 N.E.2d 273 (1995), the Ohio Court of Appeals stated:
In order to have any evidentiary value, the witnesses affdavit, deposition
or oral testimony must be under oath. . . . Although the administration of
the oath at a trial or at an administrative hearng may be expressly or
impliedly waived, when no such waiver is apparent on the record,
unsworn testimony cannot provide the preponderance of substantial,
ADA COUNTY HIGHWAY DISTRICT'S MOTION TO STRIKE ALL OR PORTIONS
OF WRITTEN TESTIMONY OF SCOTT D. SPARKS, DAVID R. LOWRY, AND
GREGORYW. SAID
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reliable and probative evidence necessary to support an administrative
decision. (Emphasis added).
/d. at 276. That the Commssion has recognized that unsworn testimony is inherently unreliable,
incompetent, and lacking any evidentiary value is obvious from its promulgation of RP 250
which as noted above, requires that all testimony to be under oath.
It is clear that the failure to comply with RP 250 renders the unsworn prepared written
Direct Testimony of Scott D. Sparks, David R. Lowry and Gregory W. Said inadmissible in this
case.
Failure to comply with RP 266 and 261 also renders the unsworn Direct Testimony of
Scott D. Sparks, David R. Lowry and Gregory W. Said inadmissible in this case. RP 266
permts a pary to submit a witness's prepared testimony if required pursuant to an order, notice
or rule requiring its filng before hearng. Without objection, the presiding officer may direct
other prepared testimony to be incorporated in the transcript as if read. Here, the proffered
Direct Testimony does not comply with RP 250 and ACHD objects to it being incorporated in
the transcript as if read. Thus, it must be excluded.
III.
PORTIONS OF WRITTEN TESTIMONY OF DAVID R. LOWRY AND
GREGORY W. SAID MUST BE STRICKEN
Separate from the fact that prepared written testimony of Scott D. Sparks, David R.
Lowry, and Gregory W. Said submitted in support of Idaho Power's Application in the above
entitled case is unsworn and therefore inadmissible, portions of the prepared written testimony of
David R. Lowry and Gregory W. Said must be stricken from the record because it offers
inappropriate legal conclusions, is irrelevant, unreliable, lacking any evidentiary value and/or
argumentative and therefore inadmissible.
ADA COUNTY HIGHWAY DISTRICT'S MOTION TO STRIKE ALL OR PORTIONS
OF WRITTEN TESTIMONY OF SCOTT D. SPARKS, DAVID R. LOWRY, AND
GREGORY W. SAID
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A. Inadmissible Portions of the Prepared Written Testimony of David R. Lowry
ACHD hereby objects to the following portions of the prepared written testimony of
David R. Lowry and moves that it be stricken from the record on the grounds that it offers
inappropriate legal conclusions, is unreliable, irrelevant, and/or argumentative and therefore
inadmissible pursuant to RP 261.
1. Page 2, Lines 10-12.
On page 2, lines 10-12 of his written testimony, David R. Lowry states:
". . . when those relocation costs should have been more appropriately
been borne by real estate developers."
Clearly, this statement lacks adequate foundation and is an inappropriate attempt to offer a legal
conclusion.
2. Page 3, Lines 2-5.
On page 3, lines 2-5 of his written testimony, David R. Lowry states:
"If a relocation of facilities is required due to an identified and budgeted
highway project, Idaho Power is legally required to fund the relocation
cost."
This statement lacks adequate foundation and is an inappropriate attempt to offer a legal
conclusion.
3. Page 3, Lines 17-20.
On page 3, lines 17-20 of his written testimony, David R. Lowry states:
"However, the current Rule H tariff does not clearly address cost
responsibilty for all relocations, including relocations requested by a
Public Road Agency on behalf of a third pary."
This statement is an inappropriate attempt to offer a legal conclusion, is irrelevant, and is
argumentative. The Commssion is perfectly able to decide for itself whether Rule H clearly
addresses cost responsibilty for all relocation situations.
ADA COUNTY HIGHWAY DISTRICT'S MOTION TO STRIKE ALL OR PORTIONS
OF WRITTEN TESTIMONY OF SCOTT D. SPARKS, DAVID R. LOWRY, AND
GREGORY W. SAID
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4. Page 7, Lines 7-12.
On page 7, lines 7-12 of his written testimony, David R. Lowry states:
"lTD then requires Idaho Power and other private utilty companies to
fund to fund the relocation costs of their utility facilties. Correspondence
between Idaho Power, lTD and the City of Nampa has been included as
Exhibit NO.1 to my testimony to ilustrate how this cost shifting occurs."
This statement relating to the Idaho Transportation Deparment is irrelevant to the requested
reconsideration by ACHD, the City of Nampa and the Association of Canyon County Highway
Districts. Additionally, it is irrelevant and lacks foundation as to "other private utilty
companies" as well as to an assertion of "cost shifting". Finally, ACHD notes that the Exhibit
NO.1 to which Mr. Lowry refers was not labeled in compliance with RP 267.05 in that it does
not provide Mr. Lowry's title with IPC as required (see example).
5. Page 8, Lines 16-20.
On page 8, lines 16-20 of his written testimony, David R. Lowry states:
"Q. Do you believe the proposed Rule H relocation language, as described
in greater detail in Mr. Spark's (sic) testimony, wil provide Public Road
Agencies and the public with needed clarty as to how responsibilty for
relocation costs is to be apportioned"
"A. Yes."
This question and answer is irrelevant, lacks foundation and is argumentative; additionally, it
does not provide testimony or facts.
B. Inadmissible Portions of the Prepared Written Testimony of Gregory W. Said
ACHD hereby objects to the following portions of the prepared written testimony of
Gregory W. Said and moves that it be stricken from the record on the grounds that it offers
inappropriate legal conclusions, is unreliable, irrelevant, and/or argumentative and therefore
inadmissible pursuant to RP 261.
ADA COUNTY HIGHWAY DISTRICT'S MOTION TO STRIKE ALL OR PORTIONS
OF WRITTEN TESTIMONY OF SCOTT D. SPARKS, DAVID R. LOWRY, AND
GREGORYW. SAID
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1. Page 3, Lines 17-22.
On page 3, lines 17-22 of his written testimony, Gregory W. Said states:
"The company believes that these clarifications wil alleviate
misunderstandings where certain governmental entities have forced
responsibilty for funding line relocation expenses onto Idaho Power
customers that should have been more appropriately be (sic) borne by
developers."
This statement is irrelevant and speculative. The statement is made without foundation and is
argumentative and should be reserved for argument of counseL.
2. Page 5, Lines 7-22
On page 5, lines 7-22 of his written testimony, Gregory W. Said states:
"Is growth paying for itself?
The clear answer is no. Additional revenues generated from the addition
of new customers and load growth in general is not keeping pace with the
additional expenses created and required to provide ongoing safe and
reliable service to new and existing customers. While the provisions of
Rulè H have required some contributions in aid of construction for new
distribution facilities, there are no requirements for contributions in aid of
construction for new transmission or generation facilities which are also
typically required to serve customer growth. Reducing the Company's
new customer-related distribution rate base by reducing allowances and
refunds wil relieve one area of upward pressure on rates and wil take a
step toward growth paying for itself."
This statement lacks foundation for the conclusory statements and arguments made. This
testimony is also irrelevant to the issues involved in this case. This statement is argumentative
and should be reserved for argument of counseL.
3. Page 6, Lines 2-12
On page 6, lines 2-12 of his written testimony, Gregory W. Said states:
"Q. Please describe how certain governmental entities are able to force
payment of line installation expenses onto Idaho Power customers that
should more appropriately be borne by developers."
"A. Under Idaho law, governmental agencies charged with constructing,
operating, and maintaining road, such as the Idaho Transportation
ADA COUNTY HIGHWAY DISTRICT'S MOTION TO STRIKE ALL OR PORTIONS
OF WRITTEN TESTIMONY OF SCOTT D. SPARKS, DAVID R. LOWRY, AND
GREGORY W. SAID
7
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Deparment and the Ada County Highway District have the authority to
require the relocation of Company-owned transmission and distribution
facilties that are sited in road rights-of-way at Company expense."
This statement is an inappropriate attempt to offer a legal conclusion.
4. Page 7, Line 4 to Page 8, Line 13
On page 7, line 4 to page 8, line 13 of his written testimony, Gregory W. Said states:
"Mr. Lowry has informed me of a number of examples where I believe
governmental entities have required the relocation of Company-owned
transmission and distribution facilties at Company cost instead of seeking
payment from third pary developers. Mr. Lowry's testimony in this
proceeding provides examples of instances where third-pary developers
have attempted to avoid Idaho Power's requirement that they make
contributions in aid of relocating transmission and distribution facilities
for their developments. When governmental entities require Idaho Power
to relocate facilties and incur costs that should be properly paid for by
local developers, it results in the inappropriate shifting of costs from local
developers to the general rate paying customers of Idaho Power. Mr.
Sparks describes in his testimony a newly drafted Rule H provision
clarifying the rules governing cost responsibilty for relocations.
Hopefully these clarfications wil assist the highway agencies in
determning when relocation costs should be borne by developers and
avoid further inappropriate cost shifting from local developers to Idaho
Power customers."
"Q. Ultimately, what is the Company requesting in this proceeding?"
"A. The Company believes that as a result of Mr. Sparks' review and
evaluation of the provisions of Rule H, the revisions to Rule H as
proposed in this fiing are in the best interest of Idaho Power customers.
The proposed Rule H language provides a more logical and readable flow,
updates costs to current levels, and reduces one aspect of upward pressure
on rates. In addition, the new Rule H section addressing relocation of
distribution facilities for third-pary development wil also assist in
makng sure that growth pays for itself rather than transferrng additional
costs to Idaho Power's rate paying customers."
This statement is replete with conclusory, argumentative, and duplicative testimony.
Additionally, this statement includes hearsay testimony in which Mr. Said is commenting on, and
asserting as true, the testimony of other witnesses. The Commssion is better in a position to
weigh the testimony of other witnesses and decide for itself whether to credit or discredit such
ADA COUNTY HIGHWAY DISTRICT'S MOTION TO STRIKE ALL OR PORTIONS
OF WRITTEN TESTIMONY OF SCOTT D. SPARKS, DAVID R. LOWRY, AND
GREGORY W. SAID
8
44805.0001.1678354.1
testimony. Finally, the Commission can decide what is in the best interest of Idaho Power's
customers.
iv.
COMPLIANCE STATEMENTS
1. Pursuant to RP 56.07, ACHD has reviewed all of the Commssion's rules and agrees
to comply with them.
2. Pursuant to RP 256.02, this Motion is made on fewer than 14 days notice for the
reason that the Commssion, in Order No. 30900 in the above entitled case, issued a
Notice of Hearng for Oral Argument scheduling said Hearing for October 13,2009,
and a ruling on this Motion, as well as a Motion to Strike fied by IPC on September
21,2009 and ACHD's Brief in Opposition to IPC's Motion to Strike fied on October
5,2009, at the aforementioned hearing is anticipated. On October 6,2009, ACHD
provided actual notice of this Motion to at least one (1) representative of all paries by
telephone or personal delivery.
v.
CONCLUSION
For the foregoing reasons, ACHD respectfully requests that the Commssion grant this
Motion to Strike and that it strike in its entirety, the unsworn written testimony of Scott D.
Sparks, David R. Lowry, and Gregory W. Said or in the alternative, that it strike certain portions
of the testimony of David R. Lowry, and Gregory W. Said as identified above.~Respectfully submitted this ~ day of October, 2009.L~!JJ~
SCOTT D. SPEARS, AttoÆe
Petitioner, Ada County Highway District
ADA COUNTY HIGHWAY DISTRICT'S MOTION TO STRIKE ALL OR PORTIONS
OF WRITTEN TESTIMONY OF SCOTT D. SPARKS, DAVID R. LOWRY, AND
GREGORY W. SAID
9
44805.0001.1678354.1
CERTIFICATE OF SERVICE
Gtti hereby certify that on the _ day of October, 2009, I caused to be delivered by hand or by e-
mail and U.S. Mail (postage pre-paid) in the manner indicated, a true and correct copy of the
foregoing ADA COUNTY HIGHWAY DISTRICT'S MOTION TO STRIKE ALL OR
PORTIONS OF WRITTEN TESTIMONY OF SCOTT D. SPARKS, DAVID R. LOWRY, AND
GREGORY W. SAID upon the following paries:
Jean D. Jewell, Commssion Secretar
Idaho Public Utilities Commssion
P.O. Box 83720
Boise, ID 83720-0074
Service: Hand
Lisa Nordstrom
Baron L. Kline
Idaho Power Company
P.O. Box 70
Boise, Idaho 83707-0070
lnordstrom (g idahopower.com
bkline (fidahopower.com
Service: e-mail & U.S. Mail
Krstine Sasser
Idaho Public Utilities Commssion
P.O. Box 83720
Service: e-mail &U.S.Mail
Boise, ID 83720-0074
krs.sasser(fpuc .idaho. gov
Service: e-mail &U.S.Mail
Scott Sparks
Gregory W. Said
Idaho Power Company
P.O. Box 70
Boise, Idaho 83707-0070
ssparks (fidahopower .com
gsaid (fidahopower .com
Service: e-mail & U.S. Mail
Michael C. Creamer
Givens Pursley, LLP
601 W. Bannock St.
Boise, ID 83702
mcc (f givenspursley .com
Service: e-mail & U.S. Mail
Micheal Kurtz, Esq.
Kurt J. Boehm, Esq.
Boehm, Kurtz & Lowry
36 E. Seventh Street, Suite 1510
Cincinnati, OH 45202
mkrtz(f BKLlawfirm.com
kboehm (f BKLlawfirm.com
Service: e-mail &U.S.Mail
Matthew A. Johnson
Davis F. VanderVelde
White Peterson Gigray Rossman
Nye & Nichols, P.A.
5700 E. Fraklin Road, Suite 200
Nampa, ID 83687
mjohnson (fwhitepeterson.com
dvandervelde (fwhitepeterson.com
Service: e-mail & U.S. Mail
Kevin Higgins
Energy Strategies, LLC
Parks ide Towers
215 S. State Street, Suite 200
Salt Lake City, UT 84111
khiggins (fenergystrat.com
Service: e-mail & U.S. Mail
:f~lr~CT
SCOTT D. SPEARS, Attorney for the Petitioner
Ada County Highway Distnct
ADA COUNTY HIGHWAY DISTRICT'S MOTION TO STRIKE ALL OR PORTIONS
OF WRITTEN TESTIMONY OF SCOTT D. SPARKS, DAVID R. LOWRY, AND
GREGORYW. SAID
10
44805.0001.1678354.1