20130404order_no_32780.pdf

Office of the Secretary
Service Date
April 4, 20 13
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE COMPLAINT
AND PETITION OF IDAHO POWER
COMPANY FOR A DECLARATORY
ORDER REGARDING THE FIRM ENERGY
SALES AGREEMENT AND GENERATOR
INTERCONNECTION AGREEMENT WITH
NEW ENERGY TWO, LLC.
IN THE MATTER OF THE COMPLAINT
AND PETITION OF IDAHO POWER
COMPANY FOR A DECLARATORY
ORDER REGARDING THE FIRM ENERGY
SALES AGREEMENT AND GENERATOR
INTERCONNECTION AGREEMENT WITH
NEW ENERGY THREE, LLC.
1
) CASE NO. IPC-E-12-25
1
) CASE NO. IPC-E-12-26
)
1
) ORDER NO. 32780
1
On November 9 and 21,2012, Idaho Power Company filed two separate "Complaints
and Petitions for Declaratory Order" regarding two Power Purchase Agreements ("PPAs")
between itself and New Energy Two and New Energy Three, respectively. Idaho Power
generally alleged the New Energy projects (collectively "New Energy") breached their
respective PPAs by failing to supply power to the utility. On December 4, 2012, the
Commission consolidated the two cases into a single proceeding and directed New Energy to
answer the Complaints and Petitions by December 27, 2012. Order No. 32692. Rather than file
an answer, New Energy filed a "Motion to Dismiss for Lack of Subject Matter Jurisdiction."
Idaho Power filed an answer to the Motion, and New Energy filed a reply to Idaho Power's
answer.
On March 5, 2013, the Commission issued Interlocutory Order No. 32755 denying
New Energy's "Motion to Dismiss." The Commission found that it did have jurisdiction to
resolve the contract dispute because New Energy and Idaho Power had expressly agreed in their
PPAs to submit disputes arising under their respective PPAs to the Commission for resolution.
Order No. 32755 at 10 citing Afton Energy v. Idaho Power Co. ("Afton IV"), 11 1 Idaho 925,
929, 729 P.2d 400, 404 (1986); PPA 5 19.1. The Commission also ordered New Energy to file
its answer (if any) to the Complaints and Petitions no later than March 19, 20 13. Id. at 12.
ORDER NO. 32780 1
On March 18, 2013, New Energy filed a Motion generally seeking the Commission's
permission for leave to file a permissive appeal pursuant to Idaho Appellate Rule (I.A.R.) 12
challenging the Commission's decision that it did have jurisdiction to resolve the dispute. New
Energy did not request a hearing on its Motion and Idaho Power did not file an answer to the
Motion. As set out below, the Motion is granted in part and denied in part.
BACKGROUND
A. Interconnection and the PPA Processes
The background for this consolidated case is taken primarily from the two complaints
and is set out in greater detail in Order No. 32755. Briefly, New Energy proposed to build two
separate anaerobic digester1 projects at Swager Farms (New Energy Two) and Double B Dairy
(New Energy Three) that would generate electricity for sale to Idaho Power pursuant to the
Public Utility Regulatory Policies Act (PURPA). PURPA generally requires electric utilities
such as Idaho Power to purchase the output from "qualifying facilities (QFs)" at rates set by the
state regulatory commissions. PURPA 5 210(a), 16 U.S.C. 5 824a-3(a). PURPA also requires
QFs (such as the anaerobic digesters in this case) to pay the cost of constructing the necessary
interconnection facilities (or transmission upgrades) to "connect" the QF project with the
purchasing utility's system. Order No. 32755 at 2 citing 18 C.F.R. 5 292.308. Thus, the typical
PURPA transaction in Idaho contains two separate and independent parts. One part is the
parties' obligations to sell and purchase the electrical output from the QF project - in this case
embodied in the PPAs. The other part is the interconnection process where the utility and the QF
negotiate and contract for the construction of the necessary interconnection facilities. Order No.
32755 at nn.2, 3. The culmination of the interconnection process is the execution of a Generator
Interconnection Agreement (CIA) and the construction of the transmission facilities by the
utilityS2
Returning to the facts of this case, New Energy initiated discussions with Idaho
Power in October 2009 about the interconnection process for the two digester projects. Order
Nos. 32755 at 2; 32692 at 2. Following initial discussions, New Energy submitted a request to
' Anaerobic digesters utilize animal waste to produce methane gas which is then combusted to provide motive force
for the production of electricity. Order No. 28945 at 2.
2 Typically there are three steps to the interconnection process: (I) the QF submits a generator interconnection
request and signs a Study Agreement with the utility; (2) the utility prepares and issues a Study Report; and (3) ifthe
study is acceptable, the parties sign the CIA and QF pays the utility to construct the interconnection facilities.
ORDER NO. 32780 2
Idaho Power for the utility to prepare an Interconnection Study Report (including proposed
routing, estimated cost, and a construction schedule). Id. at n.2. Idaho Power submitted separate
Study Reports for each project to New Energy. Order No. 32755 at 2.
In May 2010, Idaho Power and New Energy entered into a separate PPA for each
digester project. Each project was contracted to supply 1.2 MW of power to Idaho Power over a
15-year term. The scheduled commercial operation date (COD) for Swager Farms was October
1, 2012, and the COD for Double B was December 1, 201 2. Id. On July 1, 2010, the
Commission approved the PPAs for Swager Farms and the Double B Dairy in Order Nos. 32026
and 32027, respectively. Id.
In January 201 1, New Energy requested that the interconnection capacity for each
project be increased from 1.2 MW to 2.0 MW. Id. at 2-3. New Energy and Idaho Power
subsequently executed new Study Agreements and Idaho Power prepared a new Facility
(Interconnection) Study Report for each project. In late April 201 1, Idaho Power issued its final
Facility Study Reports estimating that the cost for the Swager Farms' 2.0 MW interconnection
would cost approximately $1.71 million, and Double B's 2.0 MW interconnection capacity
would cost approximately $376,000. Id. at 3. The parties then engaged in protracted discussions
and communications leading up to Idaho Power's preparation of draft "Generation
Interconnection Agreements" (GIAs) for each QF.
On March 22, 201 2, Idaho Power sent New Energy the draft CIA for Swager Farms.
In April 2012, New Energy asked Idaho Power to revise the interconnection facilities to the
original 0.8 MW capacity. Swager Farms Complaint at 7 59.3 The parties executed a "Re-
Study" Agreement and Idaho Power subsequently estimated that the interconnection cost for the
reduced Swager Farms capacity would be approximately $225,000. Id. at fiy 60-6 1.
On September 14, 2012, Idaho Power sent the final GIA to Swager Farms at the
lower 0.8 MW capacity. Idaho Power's cover letter to the CIA advised Swager Farms that it
"must have the executed GIA and funding no later than October 1, 2012, in order to complete
construction by this date." Id. at 7 66 (emphasis original). In a follow-up e-mail, Idaho Power
warned New Energy that if the executed GIA and the required funding are not received by
3 In May 20 1 1, New Energy advised Idaho Power that Exergy Development would assist New Energy with its two
QF projects. Order No. 32755 at 3.
ORDER NO. 32780
October 1, 2012, "it will not be possible to complete the required interconnection work before
the end of the year 2012." Id. at 7 68.4
On May 9, 2012, Idaho Power sent a draft CIA to New Energy for the Double B
project and advised it that failure to submit all of the required items and the executed CIA *'will
cause the Generator Interconnection request to have been deemed withdrawn." Double B
Complaint at 7 49. On June 19, 2012, Idaho Power sent Double B a final GIA to be executed
and returned to Idaho Power no later than July 20, or "your (GIA] will be deemed withdrawn."
Id. at 7 53. Idaho Power insisted in its Complaint that New Energy did not execute the GIA and
return it to the utility. Idaho Power subsequently issued a deficiency notice to New Energy that
the CIA had been deemed withdrawn and removed the project Gom ldaho Power's
interconnection queue. On August 28, 2012, Idaho Power asserted it refunded New Energy's
interconnection deposit for the Double B project. Id. at 7 54-55.
B. Notice of Force Majeure
On September 28, 2012, the two New Energy projects sent a joint "Notice of Force
Majeure" to Idaho Power in accordance with Section 14 of their respective PPAs. The projects
explained they could not perform under the respective PPAs because of "the occurrence of a
force majeure event." Swager at Tab 56; Double B at Tab 36. The projects alleged in their
notice that the Commission's generic PURPA investigation (GNR-E-11-03) and other "pending
proceedings" caused lenders to be "unwilling to lend in Idaho pending the outcome of these
proceedings." Id. Thus, with "no financing available, . . . it [is] impossible for [the QF] pro-jects
to perform [their] obligation" under the PPAs. Id. 7 4; Order No. 32755 at 4.
C. New Energy's Motion to Dismiss
In its Motion to Dismiss, New Energy maintained that the Commission does not
possess the necessary jurisdiction to interpret and/or enforce contracts. In particular, New
Energy asserted the Supreme Court has stated that the "general rule" is:
Generally, the construction and enforcement of contract rights is a matter that
lies in the jurisdiction of the courts and not the public utilities commission.
This is true notwithstanding that the parties are public utilities or that the
subject matter of the contract coincides generally with the expertise of the
4 The Swager Farms PPA provided that the project's commercial operation date for supplying power to the utility is
October 1,2012.
5 Under the terms of its PPA, Double B was to be in commercial operation supplying power to the utility no later
than December 1,20 12.
ORDER NO. 32780 4
commission. If the matter is a contractual dispute, it should be heard by the
courts.
Motion at 6 quoting Lemhi Telephone Co. v. Mountain States Tel. & Tel. Co., 98 Idaho 692, 696,
571 P.2d 753, 757 (1977). New Energy did concede that the Court has recognized exceptions to
the general rule set out above. Id at 9-10. More specifically, the Court in Afton Energy v. Iu'uho
Power Co. ("Affon IV'Y, reiterated the exception to the general rule is that the Commission may
resolve a contract dispute because "the parties agreed to let the PUC settle this dispute and . . .
there is substantial evidence in the record to support the Commission's decision." 11 1 Idaho
925, 729 P.2d 400 (1986), citing Bunker Hill v. Washington Wizter Power Co., 98 Idaho 249,
259, 561 P.2d 391, 394 (1977). New Energy also observed the @on IV Court found that the
PURPA contract "between Afton and Idaho Power does not fall within any of [the] exceptions
[to the general rule]. Idaho Power and Afton have not agreed to allow the Commission to
interpret the contract." Motion at 10 quoting Ajion IV, 11 1 Idaho at 929, 729 P.2d at 404. Idaho
Power filed an answer opposing the Motion. See Order No. 32755 at 7-8.
THE COMMISSION'S INTERLOCUTORY ORDER NO. 32'755
In Order No. 32755, the Commission recognized that the general rule is "&lenerally,
the construction and enforcement of contract rights is a matter which lies in the jurisdiction of
the courts and not in the public utilities commission." Order No. 32755 at 9 quoting Afton IV,
11 1 Idaho at 928, 729 P.2d at 403 (emphasis added). However, the Commission found that this
case is controlled by one of the exceptions to the general rule where "the parties agreed to let the
PUC settle th[e] dispute. . . ." Id. at 9-10; Afton IV, 11 1 Idaho at 929, 729 P.2d at 404 quoting
Bunker Hill, 98 Idaho at 242, 561 P.2d at 394.6 In particular, the Commission found
that the "consent" exception (where parties agree to let the Commission
settle a contractual dispute) is controlling in this instance. More
specifically, we find that the QFs and Idaho Power have expressly agreed in
their PPAs to submit disputes arising under their respective PPAs to the
Commission for resolution. As pointed out by Idaho Power, each PPA
contains a provision granting the Commission jurisdiction over this matter.
Section 19.1 of each PPA provides:
6 In McNeul v Idaho PUC, 142 Idaho 685, 689. 132 P.3d 442, 446 (2006), the Court recognized another exception
to the general rule regarding the Commission's ability to interpret and enforce interconnection agreements between
telecommunication carriers. In explaining this exception, the Court stated it has been "careful to use words such as
'generally' and 'normally' [when stating the applicability of the general rule] and also, to provide for exceptions to
the norm." (Emphasis added.) The Commission resolving disputes about interconnection agreements is an
exception to the general rule (i.e., norm).
ORDER NO. 32780 5
Disputes - All disputes related to or arising, under this Agreement,
including, but not limited to, the interpretation of the terms and
conditions of this Agreement, will be submitted to the Commission for
resolution.
Swager at Tab 1, Double B at Tab 1 (emphasis added). Unlike the parties in
Afton IV, we find that New Energy and Idaho Power have expressly
agreed that "[all1 disputes related to or arising under this Agreement . . .
will be submitted to the Commission for resolution." PPA at fj 19.1. New
Energy Two and New Energy Three signed their respective PPAs containing
Section 19.1 on May 2 1, 201 0. We further find this provision of the PPA to
be clear and unambiguous. "An unambiguous contract will be given its plain
meaning." Shawver v. Huckleberry Estates, 140 Idaho 345, 36 1, 93 P.3d 685,
692 (2004). In this case, the dispute between the parties is "related to or
arising under this Agreement.'' In addition, New Energy's force majeure
notice specifically refers to Section 14 of the PPAs - clearly relating to the
PPAs. Swager at Tab 56, Double B at Tab 36. Moreover, each PPA provides
in Section 20.1 that "This Agreement is subject to the jurisdiction of those
governmental agencies having control over either party of this Agreement."
Swager at Tab 1, Double B at Tab 1.
We further find that there is a statutory basis for our jurisdiction in this
matter. Just as in the case where QFs may bring complaints against utilities
under PURPA (Afton I/III, 107 Idaho at 781, 693 P.2d at 427), the
Commission is authorized under Idaho Code tj 61-621 to hear complaints
made by public ~tilities.~ As the Idaho Supreme Court noted in Afion I/III,
Section 61 -61 2 "gives the Commission jurisdiction to hear complaints against
public utilities alleging violations of rules, regulations or any provision of law;
I.C. fj 61-502 gives the Commission jurisdiction to determine reasonable rates,
including rates collected under contracts; and I.C. fj 61-503 gives the
Commission power to investigate a single contract. . . ." 107 Idaho at 784,
693 P.2d at 430. The PPAs at issue in this case directly affect Idaho Power's
rates through the annual Power Cost Adjustment (PCA). Idaho Code fj 61-
502, Kootenui, 99 Idaho at 880, 591 P.2d at 1 27.8 The United States Supreme
Court also noted in FERC v. Mississippi, PURPA "and the [FERC]
implementing regulations simply require the [state regulatory] authorities to
adjudicate disputes arising under [PURPA]. Dispute resolution of this kind is
the very tylre of'activify customarily engaged in by the Mississippi [Public
Utilities] Commission. . . ." 456 U.S. 742, 760, 102 S.Ct. 2126, 2138 (1982)
7 Idaho Code 5 61-621 states: "Any public utility shall have a right to complain on any grounds upon which
complaints are allowed to be filed by other parties. . . ."
8 The ldaho Supreme Court in Afton I/III observed: "Contracts entered into by public utilities with [QFs] or
decisions by utilities not to contract with [QFs] have a very real effect on the rates paid by consumers both at present
and in the future." 107 ldaho at 789, 693 P.2d at 435 (emphasis added).
ORDER NO. 32780 6
(emphasis added); Afton I/III, 107 Idaho at 789, 693 P.2d at 435 (emphasis
original).
Order No. 32755 at 10-1 1 (bolding added, underline original, footnote original). Having found
that it has jurisdiction to resolve the contract dispute, the Commission ordered New Energy to
file its answer by March 19,20 1 3.
NEW ENERGY'S MOTION FOR PERMISSIVE APPEAL
New Energy's Motion for leave to file a permissive appeal has four parts. First, it
requests that the Commission designate its two Interlocutory Orders (Nos. 32692 and 32755) as
final Orders pursuant to Commission Rule 323.[03]: IDAPA 31.01.01.323.03. Motion at 2.
Second, New Energy seeks a Commission Order approving New Energy's Motion for a
Permissive Appeal under I.A.R. 12. Id. Third, New Energy seeks a stay of the current
proceeding pursuant to Rule "324 until the appeal to the Supreme Court is resolved." Id.
Finally, and in the alternative, New Energy seeks reconsideration of Order Nos. 32692 and
32755 pursuant to Commission Rule 331, IDAPA 31.01.01.331. Each component of New
Energy's Motion is set out and reviewed in greater detail below.
A. Designating the Commission's Interlocutory Orders as Final Orders
New Energy first requests that the Commission designate its two interlocutory Orders
(Nos. 32692 and 32755) as final Orders pursuant to Commission Rule 323.[03].'~ Rule 323.03
provides in pertinent part that: "Whenever a party believes that an order not designated as a final
order according to the terms of these rules should be a final order, the party may petition the
Commission to designate the order as final." IDAPA 31.01.01.323.03. In its Motion, New
Energy states that it "intends to appeal the [two] Orders in question and designation of those
Orders as final is appropriate." Motion at 2. New Energy insists that these two Orders "embrace
a controlling issue of law and are appealable pursuant to the appellate provisions of the IPUC
Rules of Procedure and the Idaho Code." Id.
Commission Findings: Idaho Code $ 6 1-601 provides that all proceedings before the
Commission shall be governed by the Public Utilities Law and by the rules of practice and
procedure adopted by the Commission. Commission Rule 321 defines and designates certain
9 New Energy actually cites to Rule 323.04 but quotes Rule 323.03. Motion at 2-3.
10 Supra, n.9.
ORDER NO. 32780
Commission Orders as interlocutory orders. Rule 321.01 defines interlocutory orders as those
orders "that do not finally decide all previously undecided issues presented in a proceeding,
except the Commission may by order decide some of the issues presented in a proceeding and
provide in that order that its decision on those issues is final and subject to review by
reconsideration and appeal. . . ." IDAPA 3 1.0 1 .01.32 1.0 1. Rule 32 1.02 specifically designates
certain orders as "always interlocutory [including]: . . . orders initiating complaints or
investigations; orders joining, consolidating or separating issues, proceedings or parties. . . ."
IDAPA 3 1 .01.0 1.32 1.02 (emphasis added).
Returning to the first Order (32692), we find that it is clearly an interlocutory order as
defined by our Rule 321. Order No. 32692 initiated the complaint and consolidated the two
complaints into a single proceeding. In addition, the Idaho Supreme Court has held that "[als a
general rule, final judgment is an order or judgment that ends the lawsuit, adjudicates the subject
matter of the controversy, and represents a final determination of the rights of the parties." In re
Johnson, 153 Idaho 246, 25 1 n.5, 280 P.3d 749, 754 n.5 (Ct.App. 20 12) quoting Camp v. East
Fork Ditch Co., 137 Idaho 850, 867, 55 P.3d 304, 321 (2002). Our first Order neither ended the
case nor represented a final determination. It does not meet the definition of a final order under
our Procedural Rules or the guidelines issued by our appellate courts.
The Commission's second Order No. 32755 denying New Energy's Motion to
Dismiss also was not designated as a final Order pursuant to Rule 323, IDAPA 31.01.01.323.01.
However, it is not the "title" or description of an order that is controlling but whether the order
represents a final decision of the whole controversy. Williams v. State Bd. of Real Estate
Appraisers, 149 Idaho 675, 677-78, 239 P.3d 780, 782-83 (2010). An order "which is
intermediate or incomplete and, while it settles some of the rights of the parties, leaves
something to be done in the adjudication of their substantive rights in the case . . . is
interlocutory." Id. quoting Evans State Bank v. Skeen, 30 Idaho 703, 705, 167 P. 1 165, 166
(1917). The Commission expressly noted that Order No. 32755 did not address or resolve the
substantive issues in dispute. Order No. 32755 at 12. Although this second Order decided that
the Commission had jurisdiction to resolve this contract dispute, it did not end the lawsuit, did
not fully adjudicate the subject matter of the controversy, and did not represent a final
determination of the rights of the parties. Rule 321.01.
ORDER NO. 32780
Our Supreme Court held in Williams that an "order simply denying a motion to
dismiss is not a final order." 149 Idaho at 678, 239 P.3d at 783. The Court went on to say that
an order denying a motion to dismiss "would only be reviewable in connection with the petition
for judicial review of the final order ultimately entered." Id. Consequently, we conclude that the
Commission's Order Nos. 32692 and 32755 are not "final Orders" and we decline to designate
them as final Orders (thereby becoming subject to reconsideration). Idaho Code $ 5 61-626(1),
61 -627; Key Trunsp, v. Trans Magic Airlines, 96 Idaho 110,524 P.2d 1338 (1974).
B. Motion for Approval of Permissive Appeal
New Energy next requests that the Commission approve the digesters' Motion for
permission to appeal from an interlocutory order pursuant to Appellate Rule 12. New Energy
asserts that a permissive appeal from the Commission's interlocutory Orders is appropriate in
this circumstance "because the issues on appeal are threshold matters that will determine whether
these proceedings may be adjudicated before the Commission or in another forum. As such,
these are controlling issues of law reviewable by an appellate court preparatory to an
adjudication of the merits." Motion at 2-3.
Appellate Rule 12(a) provides that the Supreme Court may grant permission to appeal
from an interlocutory order issued by the Commission "which is not otherwise appealable under
these rules, but which involves a controlling question of law as to which there is substantial
grounds for difference of opinion and which an immediate appeal from the order or decree may
materially advance the orderly resolution of the litigation." New Energy asserts that a
permissive appeal is warranted at this juncture in the case "given the disagreement between the
parties and the Commission as to which adjudicatory body has jurisdiction to hear [this]
dispute." Motion at 6. It further maintains that it would be "duplicitous and wasteful" for the
proceeding to continue until the question of jurisdiction has been resolved. Id Consequently,
New Energy respectfully requests that the Commission grant permission for an interlocutory
appeal "to materially advance the orderly resolution of this dispute." Id. at 7.
Commission Findings: Our Supreme Court has held that permission to appeal from
an interlocutory order should only be granted "in the most exceptional cases." Verska v. St.
Alphonsus Reg. Med Center, 15 1 Idaho 889, 892, 256 P.3d 502, 505 (20 1 1); Montalbano 11. St.
Alphonsus Reg. Med. Center, 151 Idaho 837 n.1, 264 P.3d 994 n.l (201 1); see also Aardema v.
ORDER NO. 32780
US. Dairy Systems, 147 Idaho 785, 215 P.2d 505 (2009). In Verska, the Court laid out six
factors to be considered when evaluating a request for permissive appeal.
It was the intent of I.A.R. 12 to provide an immediate appeal from an
interlocutory order if [there are: (I)] substantial legal issues of great public
interest[; (2)] legal questions of first impression[; (3)] the impact of an
immediate appeal upon the parties[; (4)] the effect of the delay on the
proceedings in the [agency] pending the appeal[; (5)] the likelihood or
possibility of a second appeal after judgment is finally entered by the
[agency; and (6)] the case workload of the appellate courts. No single factor
is controlling in the Court's decision of acceptance or rejection of an appeal
by certification, but the Court intends by Rule 12 to create an appeal in the
exceptional case and does not intend by the rule to broaden the appeals which
may be taken as a matter right under I.A.R. 11.
151 Idaho at 892, 265 P.3d at 505 quoting Budell v. Todd, 105 Idaho 2, 4, 665 P.2d 701, 703
(1 983) (emphasis added).
Turning to the first two Verska factors set out above, we find that the question of
jurisdiction in this case is neither a legal question of first impression nor an issue of great public
interest. As the Commission noted in its Order, this Court has recognized an exception to the
general rule that allows the Commission to resolve contract disputes when both parties consent to
the Commission's jurisdiction. Order No. 32755 at 9-1 1; Afton IV, 11 1 Idaho at 929, 729 P.2d at
404. Relying on 5 19.1 of the Agreements, the Commission found that New Energy and Idaho
Power expressly agreed that "[all1 disputes related to or arising under this Agreement . . . will be
submitted to the Commission for resolution." Order No. 32755 at 10. The Commission also
noted that New Energy's Notice of Force Majeure specifically references tj 14 of the PPA and
that fj 20.1 of the PPA provides that the Agreement "is subject to the jurisdiction of those
governmental agencies having control over either party of this Agreement." Id. Section 19 also
states that the interpretation of terms contained in the Agreement - including what constitutes
,force majeure under 5 14.1 - will be submitted to the Commission for resolution. Id.; PPA fjfj
14.1 and 19.1. As far as this issue being "of great public interest," it involves two QF entities, a
utility, and the Commission. While this issue may be of great interest to the parties, it does not
rise to the level of "great public interest."
Turning to the remaining factors, we find that granting a permissive appeal from the
interlocutory Order will certainly delay this proceeding and cause the parties to commit
additional time and resources. While a decision on the issue of the Commission's jurisdiction
ORDER NO. 32780 10
will be definitive, a ruling in favor of the Commission may not eliminate the possibility of a
second appeal on the merits. Motion at 2. Although there is a difference of opinion whether the
Commission has jurisdiction to resolve this dispute, New Energy has not demonstrated the
"substantial grounds" regarding the dispute over jurisdiction or why the Commission's decision
is in error. I.A.R. 12(a). There is substantial and competent evidence to support the
Cornmission's findings as well as a statutory basis to hear the utility's complaint. Industrial
Customers of Idaho Power v. Idaho PUC, 134 Idaho 285, 288, 1 P.3d 786, 789 (2000); Order
No. 32755 at 9- 1 1 ; Idaho Code Cj 6 1-62 1. In summary, after weighing the factors set out above,
we find that these factors tip the scales in favor of disapproving New Energy's request for
granting a permissive appeal.
C. Reconsideration of Order No. 32 755
If the Commission is not inclined to either designate its Orders as final or approve a
request for a permissive appeal, then New Energy moves in the alternative for the Commission to
reconsider its Order denying the Motion to Dismiss. Relying on our Procedural Rule 33 1, New
Energy requests that the Commission "reconsider" its ruling on jurisdiction for the reasons set
forth in New Energy's Motion and its reply to Idaho Power's answer. Motion at 8. The Motion
further states that "the fact that the New Energy parties agreed to boilerplate language offered by
Idaho Power as to [the] forum for dispute resolution is not outcome determinative because [sic],
as set forth in detail in the New Energy parties' Motion to Dismiss." Id.
Commission Findings: For the reasons set out below, we decline to "reconsider"
Order No. 32755. Our Rule 33 1 provides that within 21 days of the "issuance of any final order,
any person interested in a final order . . . may petition for reconsideration." IDAPA
3 1.0 1.0 1.33 1.0 1 (emphasis added). First, under the Commission's Rules of Procedure,
reconsideration under Rule 33 1 is only applicable to final Orders of the Commission. As the
Commission found above, Order No. 32755 is neither a "final" Order nor does it result in a final
determination of the rights of the parties. As our appellate courts have held, a final order is one
that resolves all issues, or the last unresolved issue. Johnson, 153 Idaho at 25 1,280 P.3d at 754;
Williams, 149 Idaho at 677-78, 239 P. 3d at 782-83; Camp v. East Fork Ditch Co., 137 Idaho at
867, 55 P.3d at 32 1.
Second, Rule 331.01 also requires that requests "for reconsideration must set forth
specifically the ground or grounds why the petitioner contends that the order or any issue
ORDER NO. 32780 11
decided in the order is unreasonable, unlawful, erroneous, or not in conformity with the law. and
a statement of the nature and quantity of evidence or argument the petitioner will offer if
reconsideration is granted." IDAPA 3 1 .01.0 1.33 1.01. New Energy does not specifically point to
any particular finding or analysis contained in the Commission's Order that is in error. Order
No. 32755 set forth several reasons supporting the Commission's jurisdiction but New Energy
does not indicate which specific finding is in error. The Motion merely asks the Commission to
reconsider its Order based upon "the reasons set forth in the New Energy parties' motion to
dismiss and reply" to Idaho Power. Motion at 8. Despite New Energy's concession that the
dispute resolution language contained in Section 19.1 allows the Commission to resolve contract
disputes, New Energy does not elaborate why this "is not outcome determinative."
Third, and more importantly, New Energy's request is more properly viewed as a
motion to "review" interlocutory Order No. 32755 pursuant to Rule 322. The distinction here is
important because "reconsideration" is only available from final orders and is a statutory
prerequisite for parties seeking to appeal. Idaho Code $ 61-626; compare Rule 322 with Rule
33 1, IDAPA 3 1.01.01.322 and .33 1. As the Supreme Court observed in Washington Water
Power Co. v. Kootenai Environmental Alliance, the purpose of "reconsideration" under I&ho
Code 5 61-626 is "to afford an opportunity for the parties to bring to the Commission's attention
in an orderly manner any question [previously] determined in the [proceeding] and thereby
afford the Commission an opportunity to rectify any mistake made by it before" an appeal. 99
Idaho 875, 879,591 P.2d 122, 126 (1 979).
In essence, reconsideration is an administrative remedy that must be exhausted before
seeking judicial review. Rule 33 1.01, IDAPA 3 1 .O1 .01.33 1.01; Idaho Code $5 61-626, 61-627;
Eagle Water Co. v. Idaho PUC, 130 Idaho 3 14, 3 16, 940 P.2d 1 133, 1 135 (1 997). "Final orders
of the Commission should ordinarily be challenged either by petition to the Commission for
[reconsideration] or by appeal to this Court as provided by I.C. $5 61-626 and -627; Idaho Const.
Art. V, $ 9. A different rule would lead to endless consideration of matters previously presented
to the Commission and confusion about the effectiveness of Commission orders." Utah-Iclaho
Sugar Co. v. Intermountain Gas Co., 100 Idaho 368, 373-74, 597 P.2d 1058, 1063-64 (1979)
(emphasis added). Simply put, reconsideration is not available with the issuance of every
Commission Order.
ORDER NO. 32780
Finally, we find that New Energy's reliance on the Afton cases is misplaced because
the Agreement and facts in the Afton cases are distinguishable from the Agreements and facts in
this case. In Afton I/III, Afton filed a complaint with the Commission requesting that the
Commission order Idaho Power to enter into a PURPA contract with Afton. Idaho Power
objected to the Commission's jurisdiction (authority) to compel the utility to enter into a PURPA
contract with Afton. Afton Energy v. Idaho Power Co., 107 ldaho 781, 782, 693 P.2d 427, 428
(1984) (Afton I/III).I1 In Afton IV* Idaho Power petitioned the Commission to interpret the
underlying contract but the Commission declined finding that the proper forum was district
court. 11 1 Idaho at 928, 729 P.2d at 403. The Court stated in Afton IV that "Idaho Power and
Afton have not agreed to allow the Commission to interpret the contract." Id. at 929, 729 P.2d at
404.
The PURPA Agreement in Afton I/III is markedly different than the Agreements in
this proceeding. The Afon Agreement Article XI11 (Legal Dispute) states that there is "a bona
fide legal dispute . . . between [Afton] and Idaho [Power] as to the authority of the Idaho Public
Utilities Commission to order Idaho [Power] to enter into contracts containing rates, terms and
conditions with which Idaho [Power] does not concur." Afton PPA, Art. XI11 dated Aug. 11,
1982. That language stands in stark contrast to the dispute resolution language in the current
PPAs which provides that "all disputes related to or arising under this Agreement, including, but
not limited to, interpretation of the terms and conditions of this Agreement will be submitted to
the Commission for resolution." Order No. 32755 at 10 citing PPA § 19.1. Thus, the parties in
the present Agreements have expressly agreed to the Commission's jurisdiction, while each party
in the Afon cases and Agreement did not consent to submitting the dispute to the Comnission's
jurisdiction.
Having reviewed our interlocutory Order No. 32755, we deny New Energy's
alternative request for reconsideration for the reasons set out above.
" The lineage of the Afton cases is sometimes confusing. Afton I was issued in January 1984. Idaho Power
subsequently petitioned the Court for rehearing and the case was re-argued. In July 1984, the Court issued a
subsequent opinion (Afton /I) at which time Afton petitioned for rehearing. Finally, in December 1984, the Court
withdrew its Afton II opinion and issued a third opinion (Afton III) that modified the Court's Afton I opinion.
Consequently, the first opinion is often cited as "Afton I/III." Order No. 32755 at n.6 citing Afton IV, 11 1 Idaho 927
n. 1, 729 P.2d 402 n. 1.
ORDER NO. 32780 13
D. Request for Stny
As part of its Motion, New Energy requests that the Commission stay the proceedings
while the digesters pursue an interlocutory appeal under I.A.R. 12. Motion at 3, 7. New Energy
maintains that a stay is appropriate so that "the threshold issue of jurisdiction is resolved" and a
stay will preserve resources. Id. at 7. Rule 324 provides that the Commission may "stay any
order, whether interlocutory or final." IDAPA 3 1.0 1.0 1.324.
Commission Findings: While the Commission does not approve New Energy's
request to seek a permissive appeal, we find there is merit in granting a stay. Appellate Rule
12(c)(l) provides that any party may appeal an agency's "order approving or disapproving a
motion for permission to appeal" within 14 days of the agency's order. The Commission finds
that it is reasonable to stay our proceeding for 15 days to see whether New Energy files a motion
for a permissive appeal with the Court. If New Energy files a Rule 12 motion with the Court
requesting acceptance of an appeal by permission, then the Commission will continue its stay of
this proceeding until such time as the Court has ruled on the Rule 12 motion.
O R D E R
IT IS HEREBY ORDERED that New Energy's Motion for Permissive Appeal is
granted in part and denied in part. More specifically, New Energy's request that the Commission
designate its two interlocutory Order Nos. 32692 and 32755 as final Orders is denied.
IT IS FURTHER ORDERED that New Energy's motion that the Commission
approve a permissive appeal from the two interlocutory Orders is denied.
IT IS FURTHER ORDERED that New Energy's request that the Commission
reconsider its Order No. 32755 regarding the Commission's finding that it has jurisdiction to
resolve the contract dispute is denied.
IT IS FURTHER ORDERED that New Energy's request for a stay of this proceeding
is initially granted for 15 days from the date of this Order. If New Energy does not file an
Appellate Rule 12 motion with the Supreme Court within 14 days from the service date of this
Order, the stay will be lifted and New Energy is directed to file an answer to Idaho Power's
complaints within 28 days from the service date of this Order. If New Energy does file a timely
Rule 12 motion with the Supreme Court seeking a permissive appeal from interlocutory Order
No. 32755, the stay shall be continued until such time as the Court rules on New Energy's
motion.
ORDER NO. 32780
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this Y 7-4
day of April 201 3.
MARSHA H. SMITH, COMMISSIONER
ATTEST:
ORDER NO. 32780