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Home My WebLink About20120613Answer to Motion.pdfHO !PNER® ° C P VP fl .1 . An IDACORP Company P JASON B. WILLIAMS Corporate Counsel IDAHU JEJ jwilIiamsidahopower.com UT!LTIES CJMMS 1O June 13, 2012 VIA HAND DELIVERY Jean D. Jewell, Secretary Idaho Public Utilities Commission 472 West Washington Street Boise, Idaho 83702 Re: Case No. [PC-E-1 2-11 Petition of Rainbow Ranch Wind LLC and Rainbow West Wind LLC to Modify Order No. 32300 - Answer to Motion to Set Oral Argument and Request to Take Official Notice Dear Ms. Jewell: Enclosed for filing please find an original and seven (7) copies of Idaho Power Company's Answer to Motion to Set Oral Argument and Request to Take Official Notice in the above matter. Very truly yours, oWilliams JBW:csb Enclosures 1221 W. Idaho St. (83702) P.O. Box 70 Boise, ID 83707 JASON B. WILLIAMS (ISB No. 8718) DONOVAN E. WALKER (ISB No. 5921) Idaho Power Company 1221 West Idaho Street (83702) P.O. Box 70 Boise, Idaho 83707 Telephone: (208) 388-5104 Facsimile: (208) 388-6936 jwilIiams(äidahoower.com dwaIkeridahopower.com RECEIV D. 2012 JUN 13 PM [t:23 UTILITIES OMMlSSO;\ Attorneys for Idaho Power Company BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION IN THE MATTER OF THE PETITION OF RAINBOW RANCH WIND LLC AND RAINBOW WEST WIND LLC TO MODIFY ORDER NO. 32300 OR IN THE ALTERNATIVE APPLICATION FOR APPROVAL OF FIRM ENERGY SALES AGREEMENT. CASE NO. IPC-E-12-11 IDAHO POWER COMPANY'S ANSWER TO MOTION TO SET ORAL ARGUMENT AND REQUEST TO TAKE OFFICIAL NOTICE COMES NOW, Idaho Power Company ("Idaho Power" or "Company") and, pursuant to RP 057, hereby answers the Request to Set Oral Argument and Request to Take Official Notice filed by Rainbow Ranch Wind LLC and Rainbow Ranch West Wind LLC ("Rainbow") in the above-captioned proceeding ("Rainbow Motion"). I. BACKGROUND On March 2, 2012, Rainbow filed a Petition and Application ("Rainbow Application") requesting that the Idaho Public Utilities Commission ("Commission") modify Final Order No. 32300 issued in Case Nos. IPC-E-10-59 and IPC-E-10-60 such that the Firm Energy Sales Agreements between Rainbow and Idaho Power ("FESA5") be approved by the Commission. The Rainbow Application plead, in the alternative, IDAHO POWER COMPANY'S ANSWER TO MOTION TO SET ORAL ARGUMENT AND REQUEST TO TAKE OFFICIAL NOTICE -1 that the Commission approve the FESAs pursuant to RP 052. Idaho Power answered the Rainbow Application and filed a Motion to Dismiss on March 22, 2012 ("Idaho Power Motion"). The Idaho Power Motion advocates that the Rainbow Application is (I) an impermissible collateral attack on a Final Order of the Commission and (2) barred by the doctrines of collateral estoppels and res judicata, among others. On April 4, 2012, Rainbow answered the Idaho Power Motion. On May 30, 2012, Rainbow filed a Motion requesting oral argument on the Idaho Power Motion and that the Commission take official notice of a Notice of Intent Not to Act and Declaratory Order issued by the Federal Energy Regulatory Commission ("FERC") on April 30, 2012, in Docket No. ELI2-41, 139 FERC ¶ 61,077 ("FERC Rainbow Order"). Idaho Power now files this Answer to the Rainbow Motion. II. ANSWER TO THE RAINBOW MOTION Idaho Power objects to Rainbow's Motion as its request for both oral argument and for official notice are unnecessary for the Commission's determination related to Idaho Power's Motion. Alternatively, should the Commission determine that oral argument is appropriate, Idaho Power requests that the scope of such oral argument be narrowly limited to the procedural issues raised by Idaho Power's Motion. Oral argument on the Idaho Power Motion is unnecessary. The Idaho Power Motion contains detailed legal arguments describing the Company's position. Rainbow's response contains a point-by-point response to the Idaho Power Motion. The Rainbow Motion fails to state how or why holding oral argument on the Idaho Power Motion will provide the Commission with additional insight or information in deciding the Idaho Power Motion other than what the parties have already submitted in IDAHO POWER COMPANY'S ANSWER TO MOTION TO SET ORAL ARGUMENT AND REQUEST TO TAKE OFFICIAL NOTICE -2 their pleadings. Accordingly, oral argument on the Idaho Power Motion is unnecessary and the Rainbow Motion should be denied. In addition to seeking oral argument on the Idaho Power Motion, the Rainbow Motion requests that the Commission take official notice, pursuant to RP 263.01(a), of the FERC Rainbow Order. Idaho Power objects to the taking of official notice of the FERC Rainbow Order as it is irrelevant to the issues raised by the Idaho Power Motion. Notably, the FERC Rainbow Order merely reiterates the FERC's finding in Cedar Creek' that "the requirement in the June 8 Order that a Firm Energy Sales Agreement/Power Purchase Agreement must be executed by both parties to the agreement before a legally enforceable obligation arises, is inconsistent with PURPA and our regulations implementing PURPA ....." FERC Rainbow Order at ¶23 citing Cedar Creek at 130. Whether a fully executed Firm Energy Sales Agreement/Power Purchase Agreement constitutes a legally enforceable obligation under PURPA is not at issue in the Idaho Power Motion. Indeed, the Idaho Power Motion cites to Cedar Creek and describes how the findings of that order, and, by extension, the similar findings that were issued in the FERC Rainbow Order, do not diminish Idaho Power's arguments that the Rainbow Application is an impermissible collateral attack on a final Commission order and/or the Rainbow Application is barred by the doctrines of collateral estoppel and res judicata. See, e.g., Idaho Power Motion at pp.11, 14. Therefore, the Commission should reject Rainbow's request to take official notice of the FERC Rainbow Order as it is irrelevant to the issues presented by the Idaho Power Motion. Assuming, arguendo, that the Commission grants Rainbow's request and holds oral argument on the Idaho Power Motion, Idaho Power requests that the Commission 1 Cedar Creek Wind, LLC, 137 FERC 161,006 (2011) ('Cedar Creek'). IDAHO POWER COMPANY'S ANSWER TO MOTION TO SET ORAL ARGUMENT AND REQUEST TO TAKE OFFICIAL NOTICE -3 limit the scope of that argument to the issues contained in the Idaho Power Motion. As evidenced by Rainbow's request for the Commission to take official notice of the FERC Rainbow Order, Idaho Power is concerned that should oral argument be held on the Idaho Power Motion, Rainbow will likely attempt to expand the scope of the issues raised in the Idaho Power Motion and want to argue the merits of whether Rainbow had a legally enforceable obligation prior to December 14, 2010. That issue was not raised in Idaho Power's Motion and would be beyond the scope of oral argument. Thus, Idaho Power requests that should the Commission grant the Rainbow Motion, that it strictly limit the scope of the oral argument to the issues raised by the Idaho Power Motion. III. CONCLUSION For the reasons set forth above, Idaho Power respectfully requests that the Commission deny Rainbow's request for oral argument and request to take official notice of the FERC Rainbow Order. In the alternative, if the Commission grants Rainbow's request for oral argument, Idaho Power requests that the scope of that oral argument be limited to the issues raised in the Idaho Power Motion. Respectfully submitted this 13 th day of June 2012. iAON (WILLIA S itomey for Idaho Power Company IDAHO POWER COMPANY'S ANSWER TO MOTION TO SET ORAL ARGUMENT AND REQUEST TO TAKE OFFICIAL NOTICE -4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 13th day of June 2012 I served a true and correct copy of IDAHO POWER COMPANY'S ANSWER TO MOTION TO SET ORAL ARGUMENT AND REQUEST TO TAKE OFFICIAL NOTICE upon the following named parties by the method indicated below, and addressed to the following: Commission Staff Kristine A. Sasser Deputy Attorney General Idaho Public Utilities Commission 472 West Washington (83702) P.O. Box 83720 Boise, Idaho 83720-0074 Rainbow Ranch Wind LLC and Rainbow West Wind LLC Dean J. Miller Chas. F. McDevitt McDEVITT & MILLER LLP 420 West Bannock Street (83702) P.O. Box 2564 Boise, Idaho 83701 X Hand Delivered U.S. Mail Overnight Mail FAX X Email Kris.SasserDuc. idaho.qov Hand Delivered X U.S. Mail Overnight Mail FAX X Email joe(ämcdevitt-miller.com chasmcdevitt-milIer.com Christa Bearry, Legal Assistant IDAHO POWER COMPANY'S ANSWER TO MOTION TO SET ORAL ARGUMENT AND REQUEST TO TAKE OFFICIAL NOTICE -5