20121019Amended Notice of Appeal.pdf

Peter J. Richardson (ISB No. 3195)
Gregory M. Adams (ISB No: 7454)
Richardson & O'Leary, PLLC
515 N. 27th Street
Boise, Idaho 83702
Telephone: [phone]
Fax: [phone]
[e-mail]
greg(2richardsonando1eary.com
REV---
C OMM
Q1 19 P 1:59
iSt
Attorneys for Grouse Creek Wind Park, LLC
and Grouse Creek Wind Park II, LLC
BEFORE THE IDAHO
PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE
APPLICATION OF IDAHO POWER
COMPANY FOR A DETERMINATION
REGARDING THE FIRM ENERGY
SALES AGREEMENT FOR THE SALE
AND PURCHASE OF ELECTRIC
ENERGY BETWEEN IDAHO POWER
COMPANY AND GROUSE CREEK
WIND PARK, LLC
IN THE MATTER OF THE
APPLICATION OF IDAHO POWER
COMPANY FOR A DETERMINATION
REGARDING THE FIRM ENERGY
SALES AGREEMENT FOR THE SALE
AND PURCHASE OF ELECTRIC
ENERGY BETWEEN IDAHO POWER
COMPANY AND GROUSE CREEK
WIND PARK II, LLC
) SUPREME COURT DOCKET NO.
) 39151-2011
)
)
) CASE NO. IPC-E-10-61
)
AMENDED NOTICE OF APPEAL
) CASE NO. IPC-E-10-62
)
) AMENDED NOTICE OF APPEAL
)
)
)
)
TO: THE IDAHO PUBLIC UTILITIES COMMISSION, THE PARTIES IN THIS
MATTER AND THIE RESPECTIVE COUNSEL OF RECORD
NOTICE IS HEREBY GIVEN THAT:
AMENDED NOTICE OF APPEAL -
1.The Appellants, Grouse Creek Wind Park, LLC and Grouse Creek Wind Park II,
LLC, appeal to the Idaho Supreme Court from the Idaho Public Utilities Commission's
("Commission's") Final Order No. 32257, Final Reconsideration Order No. 32299, and Final
Reconsideration Order on Remand Order No. 32635 (collectively the "Orders")..
2.Appellants have a right to appeal to the Idaho Supreme Court pursuant to I.C. §
61-627, and the Orders described in paragraph 1 above are appealable orders pursuant to I.C. §
61-627 and I.A.R. 11(e). The Commission entered Order No. 32635 on stipulated remand after
Appellants initially appealed Order Nos. 32257 and 32299. This Amended Notice of Appeal
filed pursuant to I.A.R. 17(m) serves to include in this appeal the Commission's Order No.
32635 and the Commission's record on remand.
3.Appellants presently intend to assert the following issues on appeal, although
Appellants reserve the right to modify and develop these issues as appropriate and/or assert other
issues on appeal as appropriate:
a)Whether the Commission's Orders are arbitrary and capricious and in
violation of controlling federal law, the Public Utility Regulatory Policies Act
of 1978 ("PURPA") and the Federal Energy Regulatory Commission's
regulations, because the Commission's Orders required that a qualifying
facility ("QF") must obtain a bilaterally executed contract with a purchasing
utility, in determining when Appellants created a legally enforceable
obligation for purposes of calculating avoided cost rates;
b)Whether the Commission's "bright line rule," established in Order Nos. 32257
and 32299, that a firm energy sales agreement ("FESA") is not enforceable
until it is executed by both parties is in violation of Idaho case law regarding
contract formation;
c)Whether the Commission's Orders are arbitrary and capricious, or otherwise
not in accordance with law, because the Commission failed to apply and
distinguish its own prior precedent implementing PURPA and FERC's
regulations, including but not limited to 18 C.F.R. § 292.304(d)(2), which
establishes criteria regarding grandfathered entitlement to pre-existing
avoided cost rates and the date for formation of a legally enforceable
obligation without a fully executed contract; and
AMENDED NOTICE OF APPEAL -2
d) Whether the Commission's Orders are arbitrary and capricious and in
violation of controlling federal law, PURPA and FERC's regulations,
including but not limited to 18 C.F.R. § 292.301(b), because the
Commission's Orders disapproved and held invalid Appellants' FESAs
containing agreed-to rates, terms and conditions.
4.No order has been entered sealing any portion of the record.
5.A reporter was present at the oral argument on remand held at the Commission on
March 7, 2012. Pursuant to I.A.R. 17(h), Appellants have requested preparation of the standard
transcript, which will include the transcript of the proceedings at oral argument. Other than the
oral argument held on March 7, 2012, Appellants are aware of no proceedings in these two cases
(IPC-E-10-61 and IPC-E-10-62) where a reporter was present because the two cases were
processed by modified procedure pursuant to Commission Rule of Procedure 201 et seq.
Appellants elect to receive a hard copy of the transcript.
6.Appellants request preparation of a standard agency record on appeal pursuant to
I.A.R. 28. Appellants also request that the following documents be included in the agency's
record pursuant to I.A.R. 28(c), to the extent that such documents will not otherwise be included
with the standard agency record. For clarity, Appellants have included in the list below all
documents generated on remand for inclusion in the appellate record:
Date Description
4/25/11 The Commission's Approved Decision Meeting Minutes of the April 25, 2011
Decision Meeting
11/8/10 Complaint of Grouse Creek Wind Park LLC, Case No. IPC-E-10-29
11/8/10 Complaint of Grouse Creek Wind Park II LLC, Case No. IPC-E-10-30
11/8/10 to
present date
All documents in the Commission's files relating to stay of proceedings in Case
No. IPC-E-10-29
11/8/10 to
present date
All documents in the Commission's files relating to stay of proceedings in Case
No. IPC-E-10-30
Various All Orders and Notices in Commission Case No. GNR-E-10-04
AMENDED NOTICE OF APPEAL -3
11/8/10 Joint Petition of Utilities in Commission Case No. GNR-E-10-04
11/8/10 Answer of Northwest and Intermountain Power Producers Coalition in
Commission Case No. _GNR-E-10-04
12/22/10 Comments of Northwest and Intermountain Power Producers Coalition in
Commission Case No. _GNR-E-10-04
1/20/11 Reply Comments of Northwest and Intermountain Power Producers Coalition in
Commission Case No. _GNR-E-l0-04
1/21/11 Motion to Strike of Northwest and Intermountain Power Producers Coalition in
Commission Case No. _GNR-E-l0-04
2/28/11 Petition for Reconsideration of Northwest and Intermountain Power Producers
Coalition in Commission Case No. _GNR-E-10-04
Various All Orders and Notices in Commission Case No. GNR-E-1 1-01
3/17/11 Rocky Mountain Power Motions for Clarification and Protective Order in
Commission Case No. _GNR-E-1 1-01
3/18/11 Answer of Northwest and Intermountain Power Producers Coalition in
Commission Case No. _GNR-E-1 1-01
4/14/11 Motion to Strike of Northwest and Intermountain Power Producers Coalition in
Commission Case No. _GNR-E-1 1-01
4/22/11 Reading Rebuttal Testimony of Northwest and Intermountain Power Producers
Coalition in Commission Case No. _GNR-E-1 1-01
12/30/11 Staff Decision Memorandum in Case Nos. IPC-E-10-61 and IPC-E-10-62
1/5/12 Notice of Oral Argument Order No. 32430 in Case Nos. IPC-E-10-61 and IPC-
____________ E-10-62
2/6/12 Idaho Power Company's Memorandum on Remand in Case Nos. IPC-E-10-61
and IPC-E-10-62
2/6/12 Idaho Power Company's Affidavit on Remand in Case Nos. IPC-E-10-61 and
IPC-E- 10-62
2/6/12 Staff's Legal Brief in Case Nos. IPC-E-10-61 and IPC-E-10-62
2/27/12 Reply Legal Brief of Grouse Creek Wind Park, LLC and Grouse Creek Wind
Park II, LLC in Case Nos. IPC-E-10-61 and IPC-E-10-62
2/27/12 Affidavit of Gregory M. Adams in Case Nos. IPC-E-l0-61 and IPC-E-10-62
9/7/12 Reconsideration Order on Remand Order No. 32635 in Case Nos. IPC-E-10-61
and IPC-E-10-62
7. I certify:
a)That this Amended Notice has been served on the reporter of the
proceeding..
b)That the estimated fee for preparation of the transcript has been paid.
C) That the estimated fee for preparation of the clerk's record has been paid.
AMENDED NOTICE OF APPEAL -4
d)That the appellate filing fee of $86.00 was paid to the Secretary of the
Commission at the time of filing the initial Notice of Appeal.
e)That service has been made upon all parties required to be served pursuant
to I.A.R. 20, and the Attorney General of Idaho pursuant to I.C. § 67-
1401(1).
DATED THIS \ day of October 2012.
RICHARDSON AND O'LEARY, PLLC
By
Peter chardson (ISB No: 3195)
Gregory M. Adams (ISB No: 7454)
Attorneys for Grouse Creek Wind Park,
LLC and Grouse Creek Wind Park II, LLC
AMENDED NOTICE OF APPEAL -5
Peter J. Richardson (ISB No. 3195)
Gregory M. Adams (ISB No: 7454)
Richardson & O'Leary, PLLC
515 N. 27th Street
Boise, Idaho 83702
Telephone: [phone]
Fax: [phone]
[e-mail]
greg(richardsonando1eary.com
7:012 OCT 19 PM 2: 00
IDAHO PUUU
UTILITIES COMM1SSiO
Attorneys for Grouse Creek Wind Park, LLC
and Grouse Creek Wind Park II, LLC
BEFORE THE IDAHO
PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE
APPLICATION OF IDAHO POWER
COMPANY FOR A DETERMINATION
REGARDING THE FIRM ENERGY
SALES AGREEMENT FOR THE SALE
AND PURCHASE OF ELECTRIC
ENERGY BETWEEN IDAHO POWER
COMPANY AND GROUSE CREEK
WIND PARK, LLC
IN THE MATTER OF THE
APPLICATION OF IDAHO POWER
COMPANY FOR A DETERMINATION
REGARDING THE FIRM ENERGY
SALES AGREEMENT FOR THE SALE
AND PURCHASE OF ELECTRIC
ENERGY BETWEEN IDAHO POWER
COMPANY AND GROUSE CREEK
WIND PARK II, LLC
) SUPREME COURT DOCKET NO.
) 39151-2011
)
)
) CASE NO. IPC-E-10-61
)
) AMENDED NOTICE OF APPEAL
)
)
CASE NO. IPC-E-10-62
)
) AMENDED NOTICE OF APPEAL
)
)
)
)
)
TO: THE IDAHO PUBLIC UTILITIES COMMISSION, THE PARTIES IN THIS
MATTER AND THIE RESPECTIVE COUNSEL OF RECORD
NOTICE IS HEREBY GIVEN THAT:
AMENDED NOTICE OF APPEAL -
1.The Appellants, Grouse Creek Wind Park, LLC and Grouse Creek Wind Park II,
LLC, appeal to the Idaho Supreme Court from the Idaho Public Utilities Commission's
("Commission's") Final Order No. 32257, and-Final Reconsideration Order No. 32299, and Final
Reconsideration Order on Remand Order No. 32635 (collectively the "Orders")..
2.Appellants have a right to appeal to the Idaho Supreme Court pursuant to I.C. §
61-627, and the Oerders described in paragraph 1 above are appealable orders pursuant to I.C. §
61-627 and I.A.R. 11(e).The Commission entered Order No. 32635 on stipulated remand after
Appellants initially appealed Order Nos. 32257 and 32299. This Amended Notice of Appeal
filed pursuant to I.A.R. 17(m) serves to include in this appeal the Commission's Order No.
32635 and the Commission's record on remand.
3.Appellants presently intend to assert the following issues on appeal, although
Appellants reserve the right to modify and develop these issues as appropriate and/or assert other
issues on appeal as appropriate:
a)Whether the Commission's Orders are arbitrary and capricious and in
violation of controlling federal law, the Public Utility Regulatory Policies Act
of 1978 ("PURPA") and the Federal Energy Regulatoiy Commission's
regulations, because the Commission's Orders held-required that a qualifying
facility ("QF") must obtain a bilaterally executed contract with a purchasing
utility, in determining when Appellants created a legally enforceable
obligation for purposes of calculating avoided cost rates;
b)Whether the Commission's "bright line rule," established in the-Order.Nos .
32257 and 32299, that a firm energy sales agreement ("FESA") is not
enforceable until it is executed by both parties is in violation of Idaho case law
regarding contract formation;
c)Whether the Commission's Orders are arbitrary and capricious, or otherwise
not in accordance with law, because the Commission failed to apply ef-and
its own prior precedent implementing PURPA and FERC's
regulations, including but not limited to 18 C.F.R. § 292.304(d)(2), which
establishes criteria regarding grandfathered entitlement to pre-existing
avoided cost rates and the date for formation of a legally enforceable
obligation without a fully executed contracifo the Appellants' FESM; and
AMENDED NOTICE OF APPEAL -2
d) Whether the Commission's Orders are arbitrary and capricious and in
violation of controlling federal law. PURPA and FERC's regulations,
including but not limited to 18 C.F.R. § 292.301(b), because the
Commission's Orders disapproved and held invalid Appellants' FESAs
containing agreed-to rates, terms and conditions.
43 Whether the Commission's "bright line rule," established in the Orders, is
in violation of the rulemaking requirements of the Idaho Administrative
Procedures Act and is therefore void.
4.No order has been entered sealing any portion of the record.
5.A reporter was present at the oral argument on remand held at the Commission on
March 7, 2012. Pursuant to I.A.R. 17(h). Appellants have requested preparation of the standard
transcript, which will include the transcript of the proceedings at oral argument. Other than the
oral argument held on March 7, 2012. Appellants are aware of no proceedings in these two cases
(IPC-E-10-61 and IPC-E-10-62) where a reporter was present because the two cases were
processed by modified procedure pursuant to Commission Rule of Procedure 201 et seq.
Appellants elect to receive a hard copy of the transcript.
6.Appellants request preparation of a standard agency record on appeal pursuant to
I.A.R. 28. Appellants also request that the following documents be included in the agency's
record pursuant to I.A.R. 28(c), to the extent that such documents will not otherwise be included
with the standard agency record. For clarity. Appellants have included in the list below all
documents generated on remand for inclusion in the appellate record:
Date Description
4/25/11 The Commission's Approved Decision Meeting Minutes of the April 25, 2011
Decision Meeting
11/8/10 Complaint of Grouse Creek Wind Park LLC, Case No. IPC-E-10-29
11/8/10 Complaint of Grouse Creek Wind Park II LLC, Case No. IPC-E-10-30
11/8/10 to
present date
All documents in the Commission's files relating to stay of proceedings in Case
No. IPC-E-10-29
11/8/10 to All documents in the Commission's files relating to stay of proceedings in Case
AMENDED NOTICE OF APPEAL -3
present date No. IPC-E-10-30
Various All Orders and Notices in Commission Case No. GNR-E-10-04
11/8/10 Joint Petition of Utilities in Commission Case No. GNR-E-10-04
11/8/10 Answer of Northwest and Intermountain Power Producers Coalition in
Commission Case No. GNR-E-10-04
12/22/10 Comments of Northwest and Intermountain Power Producers Coalition in
Commission Case No. GNR-E-10-04
1/20/11 Reply Comments of Northwest and Intermountain Power Producers Coalition in
Commission Case No. GNR-E-l0-04
1/21/11 Motion to Strike of Northwest and Intermountain Power Producers Coalition in
Commission Case No. GNR-E-l0-04
2/28/11 Petition for Reconsideration of Northwest and Intermountain Power Producers
Coalition in Commission Case No. GNR-E-10-04
Various All Orders and Notices in Commission Case No. GNR-E-ll-01
3/17/11 Rocky Mountain Power Motions for Clarification and Protective Order in
Commission Case No. GNR-E-1 1-01
3/18/11 Answer of Northwest and Intermountain Power Producers Coalition in
Commission Case No. GNR-E-1 1-01
4/14/11 Motion to Strike of Northwest and Intermountain Power Producers Coalition in
Commission Case No. GNR-E-ll-0l
4/22/11 Reading Rebuttal Testimony of Northwest and Intermountain Power Producers
Coalition in Commission Case No. GNR-E-1 1-01
12/30/11 Staff Decision Memorandum in Case Nos. IPC-E-l0-61 and IPC-E-10-62
1/5/12
____________
Notice of Oral Argument Order No. 32430 in Case Nos. IPC-E-10-61 and IPC-
E-1 0-62
2/6/12 Idaho Power Company's Memorandum on Remand in Case Nos. IPC-E-10-61
and IPC-E-l0-62
2/6/12 Idaho Power Company's Affidavit on Remand in Case Nos. IPC-E-l0-61 and
IPC-E- 10-62
2/6/12 Staff's Legal Brief in Case Nos. IPC-E-l0-61 and IPC-E-10-62
2/27/12 Reply Legal Brief of Grouse Creek Wind Park, LLC and Grouse Creek Wind
Park II, LLC in Case Nos. IPC-E-10-61 and IPC-E-10-62
2/27/12 1 Affidavit of Gregory M. Adams in Case Nos. IPC-E-10-61 and IPC-E-10-62
9/7/12 Reconsideration Order on Remand Order No. 32635 in Case Nos. IPC-E-10-61
and IPC-E-lO-62
7. I certify:
a) That this Amended Notice has been served on the reporter of the
proceeding. there is no transcript fee and no reporter on whom to serve
AMENDED NOTICE OF APPEAL -4
b) That the estimated fee for preparation of the transcript has been paid.
bc) That the estimated fee for preparation of the clerk's record has been paid.
ed) That the appellate filing fee of $86.00 has-LwLas paid to the Secretary of
the Commission at the time of filing the initial Notice of Appeal.
de) That service has been made upon all parties required to be served pursuant
to I.A.R. 20, and the Attorney General of Idaho pursuant to I.C. § 67-
1401(1).
DATED THIS day of October 2012September 2011.
RICHARDSON AND O'LEARY, PLLC
By Peter J4ichardson (ISB No: 3195)
Gregory M. Adams (ISB No: 7454)
Attorneys for Grouse Creek Wind Park,
LLC and Grouse Creek Wind Park II, LLC
AMENDED NOTICE OF APPEAL -5
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 19th day of October 2012, a true and correct copy
of the within and foregoing AMENDED NOTICE OF APPEAL was served in the manner shown
to:
Jean Jewell X Hand Delivery
Commission Secretary U.S. Mail, postage pre-paid
IDAHO PUBLIC UTILITIES COMMISSION - Facsimile
472 W Washington Electronic Mail
Boise ID 83702
Kristine Sasser X Hand Delivery
Deputy Attorney General U.S. Mail, postage pre-paid
IDAHO PUBLIC UTILITIES COMMISSION - Facsimile
472 W Washington Electronic Mail
Boise ID 83702
Honorable Lawrence Wasden
Attorney General of the State of Idaho
700 W. Jefferson Street, Suite 210
P.O. Box 83720
Boise, Idaho 83720-0010
Donovan E. Walker
Lisa Nordstrom
Randy Allphin
IDAHO POWER COMPANY
P0 Box 70
Boise ID 83707-0070
Hand Delivery
U.S. Mail, postage pre-paid
Facsimile
Electronic Mail
Hand Delivery
U.S. Mail, postage pre-paid
Facsimile
Electronic Mail
M. Adams
AMENDED NOTICE OF APPEAL -6