20121218Objections to Proposed Record.pdf

22- IDAHO 99130MR.
AnDACORPCompany
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DONOVAN E. WALKER
Lead Counsel - r
dwaIkertidahoQower.cOm Li I ILf I iZS COMMISSto
December 18, 2012
VIA HAND DELIVERY
Jean D. Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington Street
Boise, Idaho 83702
Re: Case Nos. IPC-E-10-61 and IPC-E-10-62
Grouse Creek Wind Park, LLC, and Grouse Creek Wind Park II, LLC, Firm
Energy Sales Agreements - Idaho Power Company's Objection to Proposed
Agency's Record
Dear Ms. Jewell:
Enclosed for filing in the above matter are an original and fourteen (14) copies
(seven (7) for each case) of Idaho Power Company's Objection to Proposed Agency's
Record on Appeal and Request for Hearing.
Very tr ours,
Donovan E. Walker
DEW:csb
Enclosures
1221 W. Idaho St. (83702)
P.O. Box 70
Boise, ID 83707
DONOVAN E. WALKER (ISB No. 5921)
Idaho Power Company
1221 West Idaho Street (83702)
P.O. Box 70
Boise, Idaho 83707
Telephone: [phone]
Facsimile: [phone]
dwaIkercidahopower.com
RE CE''
20120EC 18 PM 2:1 +6
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Attorney for Respondent-Intervenor Idaho Power Company
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
GROUSE CREEK WIND PARK, LLC, and
GROUSE CREEK WIND PARK II, LLC,
Petitioners-Appellants,
V.
IDAHO PUBLIC UTILITIES COMMISSION,
Respondent-Respondent on Appeal,
and
IDAHO POWER COMPANY,
Respondent-Intervenor/Respondent on
Appeal.
SUPREME COURT
DOCKET NO. 39151-2011
IPUC CASE NOS. IPC-E-10-61
IPC-E-1 0-62
IDAHO POWER COMPANY'S
OBJECTION TO PROPOSED
AGENCY'S RECORD ON APPEAL
AND REQUEST FOR HEARING
COMES NOW Idaho Power Company ("Idaho Power"), by and through its
attorney of record, Donovan E. Walker, and respectfully objects to certain portions of
the Proposed Agency's Record on Appeal requested by the Petitioners/Appellants,
Grouse Creek Wind Park, LLC, and Grouse Creek Wind Park II, LLC ("Grouse Creek"),
in the above-entitled action. In particular, Idaho Power objects to Grouse Creek's
IDAHO POWER COMPANY'S OBJECTION TO PROPOSED
AGENCY'S RECORD ON APPEAL AND REQUEST FOR HEARING -1
request to include in the Record on Appeal for Case Nos. IPC-E-10-61 and IPC-E-10-62
voluminous materials from different Idaho Public Utilities Commission ("Commission")
cases that are not subject to appeal, nor the subject of this appeal. This Objection is
made pursuant to Idaho Appellate Rules 29(a) and 13(e).
I. THE REQUESTED RECORD
On October 19, 2012, Grouse Creek filed an Amended Notice of Appeal from the
Commission's Final Order No. 32257, Final Reconsideration Order No. 32299, and
Final Reconsideration Order on Remand No. 32635 from Commission Case Nos. IPC-
E-10-61 and IPC-E-10-62. In its Amended Notice of Appeal, Grouse Creek requested
numerous documents from several other Commission cases in addition to the standard
agency record on appeal pursuant to Idaho Appellate Rule 28. Those additional
documents include: the complaints and other documents from Case Nos. IPC-E-10-29
and IPC-E-10-30; the petition, orders, and notices from Case No. GNR-E-10-04;
selected pleadings, comments, motions, and petitions from other parties (Northwest and
Intermountain Power Producers Coalition "NIPPC") in Case No. GNR-E-10-04; the
order and notices from Case No. GNR-E-1 1-01; selected motions, testimony, and an
answer from other parties (NIPPC and Rocky Mountain Power) in Case No. GNR-E-1 1-
01; as well as several documents from Case Nos. IPC-E-10-61 and IPC-E-10-61, which
are the present cases on appeal.
II. THE COMMISSION PROCEEDINGS
On December 29, 2010, Idaho Power filed Applications requesting acceptance or
rejection of two Firm Energy Sales Agreements between Idaho Power and Grouse
Creek. The contracts were entered into pursuant to the Public Utility Regulatory
Policies Act of 1978 ("PURPA"). On February 24, 2011, the Commission issued Notice
IDAHO POWER COMPANY'S OBJECTION TO PROPOSED
AGENCY'S RECORD ON APPEAL AND REQUEST FOR HEARING -2
of the Applications and Notice of Modified Procedure for the processing of both matters
consolidated. Comments were filed by Grouse Creek, Commission Staff, and Idaho
Power. On June 8, 2011, the Commission issued Final Order No. 32257, denying
approval of Grouse Creek's two December 28, 2010, Firm Energy Sales Agreements.
On June 29, 2011, Grouse Creek petitioned for reconsideration of Order No. 32257. On
July 27, 2011, the Commission issued its Final Order on Reconsideration No. 32299
denying Grouse Creek's Petition for Reconsideration. On September 7, 2011, Grouse
Creek Filed a Notice of Appeal from Order Nos. 32257 and 32299.
Prior to settlement of the Agency's record and transfer to the Idaho Supreme
Court, Idaho Power, the Commission, and Grouse Creek filed a stipulated motion with
the Idaho Supreme Court to suspend the appeal and remand to the Commission for the
Commission to consider its decision in light of a recently issued decision from the
Federal Energy Regulatory Commission. The Commission issued Order No. 32430
granting further rehearing to reconsider its Final Order on Reconsideration No. 32299.
Idaho Power, Commission Staff, and Grouse Creek each filed legal briefing and the
Commission held oral argument on reconsideration. On September 7, 2012, the
Commission issued its Final Reconsideration Order on Remand No. 32635, affirming its
previous disapproval of Grouse Creek's Firm Energy Sales Agreements. On October
19, 2012, Grouse Creek filed an Amended Notice of Appeal from the Commission's
Final Order No. 32257, Final Reconsideration Order No. 32299, and Final
Reconsideration Order on Remand No. 32635.
III. LEGAL STANDARDS
The standards for review of Commission orders are clear. "No new or additional
evidence may be introduced in the Supreme Court, but the appeal shall be heard on the
IDAHO POWER COMPANY'S OBJECTION TO PROPOSED
AGENCY'S RECORD ON APPEAL AND REQUEST FOR HEARING -3
record of the commission as certified by it." Idaho Code § 61-629; Idaho Power Co. v.
Idaho Public Utilities Commission, 140 Idaho 439, 441-42, 90 P.3d 889, 891-92 (2004).
It is a basic tenet of administrative law that a reviewing court is bound by the evidence
placed into the record and presented to the agency. B. Schwartz, Administrative Law,
2d Ed. § 10.2 (1984). Judicial review is clearly confined to the record presented to the
Commission, as finder of fact. Greenfield Village Apartments v. Ada County, 130 Idaho
207, 938 P.2d 1245 (1997).
When objection is made to the requested record on appeal, the Commission
must determine, after hearing, what is to be included in the Agency's Record that is sent
to the Supreme Court. I.A.R. 29(a)-(b). "In administrative appeals from the Public
Utilities Commission, . . . the administrative agency shall have continued jurisdiction of
the matter and the parties. . . including the power to settle the transcript and record on
appeal." I.A.R. 13(e). Once settled by the Commission, the Agency's Record is then
filed with the Supreme Court. I.A.R. 29(b).
IV. OBJECTION TO DOCUMENTS
Idaho Power objects to Grouse Creek's request to include in the Record on
Appeal for Case Nos. IPC-E-10-61 and IPC-E-10-62 materials from different
Commission cases that are no longer subject to appeal, nor the subject of this appeal,
nor contained in the record for these matters. Moreover, some of the additional
requested documents are not only from different Commission cases and matters but
they also are from different parties, other than Grouse Creek. The additional requested
documents are not part of the record in this case, were not considered by the
Commission in its resolution of this case, and concern separate matters that were
resolved by their own final orders, or are still pending final orders at the Commission.
IDAHO POWER COMPANY'S OBJECTION TO PROPOSED
AGENCY'S RECORD ON APPEAL AND REQUEST FOR HEARING -4
Even if relevant and appropriate for inclusion in the Agency's record for this case, which
they are not, Grouse Creek has cherry-picked selected pleadings, arguments, and
testimony, submitted by a non-party to this case, NIPPC, and left out the opposing
pleadings, arguments, and testimonies of the other parties to those proceedings.
The additional documents requested by Grouse Creek to be part of the Agency's
Record on Appeal that are from other separate cases should be stricken from the
Record on Appeal:
1.Documents from Case Nos. IPC-E-10-29 and IPC-E-10-30 should be
stricken. Grouse Creek has requested documents from Case Nos. IPC-E-10-29
and IPC-E-10-30, which are separate complaint cases which were filed by
Grouse Creek, and then stayed. Idaho Power did not answer the Complaints
and the commission has never issued a Summons nor ruled upon the
Complaints. Idaho Power objects to the inclusion of these separate cases and
matters in the Record on Appeal for Case Nos. IPC-E-10-61 and IPC-E-10-62.
Specifically, Idaho Power objects to the inclusion of the November 8, 2010,
Complaints in Case Nos. IPC-E-10-29 and IPC-E-10-30 found in the Proposed
Agency Record on Appeal, Vol. III, pp. 553-570; the November 29, 2010, e-mail,
Vol. III, p. 571; and the April 25, 2011, Decision Meeting Minutes, Vol. Ill, pp.
572-574, and asks that they be should be stricken.'
2.Documents from Case No. GNR-E-10-04 and GNR-E-11-01 should be
stricken. Grouse Creek has requested several documents from Case No. GNR-
1 Idaho Power notes that these Complaints were attempted to be submitted into the record in
Case No. IPC-E-10-61 and IPC-E-10-62 attached to an affidavit of counsel. To the extent that the
Commission relied upon or considered the above materials form Case No. IPC-E-10-29 and IPC-E-10-30,
they should be part of the record as submitted in this case, and not included from their separate case
records in IPC-E-10-29 and IPC-E-10-30.
IDAHO POWER COMPANY'S OBJECTION TO PROPOSED
AGENCY'S RECORD ON APPEAL AND REQUEST FOR HEARING -5
E-10-04 and GNR-E-1 1-01, which are separate cases that were resolved by their
own final orders, and were not appealed to the Supreme Court. Grouse Creek
cannot now argue issues from these different cases in the appeal of its contract
cases, Case Nos. IPC-E-10-61 and IPC-E-10-62. Moreover, the requested
documents consist of an answer, comments, reply comments, a petition, and
rebuttal testimony submitted by NIPPC, a non-party to the present action.
Additionally, none of the opposing pleadings or documents from other parties
were requested, only a cherry-picked selection that Grouse Creek somehow
feels are appropriate or supportive of its position or arguments it intends to make
in this case. It is entirely improper to include argument and documents from
other separate cases that were resolved by their own Commission orders that
were not appealed, and were not even submitted by the same party as the
present case. Specifically, Idaho Power objects to the inclusion all requested
additional documents from the record of Case No. GNR-E-10-04 found in the
Proposed Agency Record on Appeal Vol. III, p. 575 through Vol. IV p. 803—as
well as all additional requested documents from the record of Case No. GNR-E-
11-01 found at Vol. IV, p. 804 through Vol. IV, p. 891.
3. Documents from Case No. IPC-E-10-61 and IPC-E-10-62. Idaho Power
does not object to the inclusion in the Agency's Record on Appeal of the
additional documents requested that are actually part of record in these cases,
as they are appropriately included.
V. REQUEST FOR HEARING
"Any objection made to . . . the agency's record must be accompanied by a
notice setting the objection for hearing and shall be heard and determined by the ...
IDAHO POWER COMPANY'S OBJECTION TO PROPOSED
AGENCY'S RECORD ON APPEAL AND REQUEST FOR HEARING -6
administrative agency from which the appeal is taken." I.A.R. 29(a). Idaho Power
respectfully requests that the Commission schedule a hearing for this matter following
one of the Commission's scheduled Decision meetings during the month of January
2013 and issue a Notice of Hearing pursuant to IDAPA 31.01.01.241 with at least
fourteen (14) days notice.
VI. CONCLUSION
Based upon the reasons set forth above, Idaho Power respectfully requests that
the Commission exclude all requested documents from separate Commission case files
that were not part of the record for Case Nos. IPC-E-10-61 and IPC-E-10-62, and not
considered by the Commission in resolution of those matters. Specifically, Idaho Power
objects to, and asks, that the following pages of the Proposed Agency Record on
Appeal be stricken: Vol. III, p. 553 through Vol. IV, p. 891. Idaho Power respectfully
requests that the Commission schedule a hearing to consider Idaho Power's objections
to the Proposed Agency Record on Appeal and issue a Notice of Hearing pursuant to
IDAPA 31.01.01.241 with at least fourteen (14) days notice.
Donovan E. Walker
Attorney for Idaho Power Company
IDAHO POWER COMPANY'S OBJECTION TO PROPOSED
AGENCY'S RECORD ON APPEAL AND REQUEST FOR HEARING -7
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 18th day of December 2012 I served a true and
correct copy of IDAHO POWER COMPANY'S OBJECTION TO PROPOSED
AGENCY'S RECORD ON APPEAL AND REQUEST FOR HEARING upon the following
named parties by the method indicated below, and addressed to the following:
Commission Staff
Kristine Sasser, Deputy Attorney General
Donald L. Howell, II, Lead Deputy Attorney General
Idaho Public Utilities Commission
472 West Washington (83702)
P.O. Box 83720
Boise, Idaho 83720-0074
Attorneys for Respondent-Respondent Idaho Public
Utilities Commission
Grouse Creek Wind Park, LLC, and Grouse Creek
Wind Park II, LLC
Peter J. Richardson
Gregory M. Adams
RICHARDSON & O'LEARY, PLLC
515 North 27th Street (83702)
P.O. Box 7218
Boise, Idaho 83707
Attorneys for Petitioner-Appellant Grouse Creek
Wind Park, LLC, and Grouse Creek Wind Park II,
LLC
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Don. howelI(uc.idaho.qov
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Christa Bearry, Legal Assistar5
IDAHO POWER COMPANY'S OBJECTION TO PROPOSED
AGENCY'S RECORD ON APPEAL AND REQUEST FOR HEARING -8
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