20150623Motion to Strike Wenner Testimony.pdf

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An IDACORP Company
,iil:i I,i f H L: 23
DONOVAN E. WALKER
Lead Counsel
June 23,2015
VIA HAND DELIVERY
Jean D. Jewell, Secretary
ldaho Public Utilities Commission
472 West Washington Street
Boise, ldaho 83702
Re: Case Nos. IPC-E-15-01 , AVU-E-15-01 , and PAC-E-15-03
Modify Terms and Conditions of PURPA Purchase Agreements - ldaho
Power Company's Motion to Strike the Testimony of Adam Wenner
Dear Ms. Jewel!:
Enclosed for filing in the above matters please find an original and seven (7)
copies of ldaho Power Company's Motion to Strike the Testimony of Adam Wenner.
Very truly yours,
/{, i'
d*?illu__
Donovan E. Walker
DEW:csb
Enclosures
122 1 W. ldaho St. (83702)
P.O. Box 70
Boise, lD 83707
DONOVAN E. WALKER (lSB No. 5921)
ldaho Power Company
1221 West ldaho Street (83702)
P.O. Box 70
Boise, ldaho 83707
Telephone: [phone]
Facsimile: [phone]
dwalker@id ahopower.com
Attorney for ldaho Power Company
IN THE MATTER OF IDAHO POWER
COMPANY'S PETITION TO MODIFY
TERMS AND CONDITIONS OF PURPA
PURCHASE AGREEMENTS
IN THE MATTER OF AVISTA
CORPORATION'S PETITION TO
MODIFY TERMS AND CONDITIONS OF
PURPA PURCHASE AGREEMENTS
IN THE MATTER OF ROCKY MOUNTAIN
POWER COMPANY'S PETITION TO
MODIFY TERMS AND CONDITIONS OF
PURPA PURCHASE AGREEMENTS
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BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
CASE NO. IPC-E-15-01
CASE NO. AVU.E.15.O1
oASE NO. PAC-E-15-03
IDAHO POWER COMPANY'S
MOTION TO STRIKE THE
TESTIMONY OF ADAM WENNER
ldaho Power Company ("ldaho Powe/'or "Company') hereby moves the ldaho
Public Utilities Commission ("Commission") to issue an order striking the direct and
rebuttal testimony of Adam Wenner on behalf of the ldaho Conservation League and
the Siena Club ("ICUSC'). Mr. Wenne/s testimony consists entirely of legal analysis,
TDAHO POWER COMPANY'S MOTION TO STRIKE THE TESTIMONY OF ADAM WENNER - 1
argument, and conclusions and is not admissible as either Iay or expert testimony.
Testimony as to issues and conclusions of law is improper and inadmissible. Expert
opinion is admissible only if it is based on facts or data and will assist the Commission
in understanding specialized matters outside of its own area of competency, and
testimony regarding legal conclusions is inadmissible because interpreting and applying
the law is the role of the Commission. For the reasons set forth below, ldaho Power
requests that the Commission strike Mr. Wenne/s direct and rebuttal testimony from the
record of this €se.
I. BACKGROUND
On January 30, 2015, ldaho Power filed a petition asking the Commission to
reduce the length of its Integrated Resource Plan-based Public Utility Regulatory
Policies Act of 1978 ('PURPA") contracts from 20 years to two years. The Commission
granted ldaho Power interim relief, reducing the term for new PURPA contracts to five
years while the Commission investigates the matter. Order No. 33222. Shortly
thereafter, Avista Corporation and Rocky Mountain Power each filed petitions seeking
the same or similar permanent and interim relief (Case Nos. AVU-E-15-01 and
PAC-E-15-03). On March 13,2015, the Commission consolidated the three cases and
granted Avista Corporation and Rocky Mountain Power the same interim relief granted
Idaho Power. Order No. 33250. The Commission also granted petitions to intervene
from a number of parties, including both the Idaho Conservation League and the Siena
Club. ln preparation for the upcoming hearing, ICUSC submifted the direct and rebutta!
testimony of Adam Wenner on April 22,2015, and May 1 4,2015, respectively.
IDAHO POWER COMPANY'S MOTION TO STRIKE THE TESTIMONY OF ADAM WENNER - 2
According to his testimony, Mr. Wenner is a Califomia-based private practice
lawyer who worked in the Office of General Counsel at the Federal Energy Regulatory
Commission ("FERC") over three decades ago. By way of describing his qualifications
to provide expert testimony, Mr. Wenner explains that he worked on PURPA matters
and that he was one of four staff members extensively involved in drafting FERG's
proposed rules implementing PURPA and the FERC's final order adopting those
regulations. According to Mr. Wenner, the purpose of his testimony is to provide his
opinion as to whether ldaho Powefs requested relief in this case-reduction of the
maximum required term for qualifying facility ("QF') agreements to two years-is
consistent with PURPA and FERG's PURPA regulations and decisions. Wenner Dl at
2. Mr. Wenner concludes that "an ldaho PUC policy that limits legally enforceable
obligations to purchase from QFs to a two year period would be inconsistent with and in
violation of the FERC's regulation." Wenner D! at 3.
The purpose of this Motion is not to respond to the legal arguments in Mr.
Wenne/s testimony-with which the Company disagrees-but rather to demonstrate
that Mr. Wenne/s opinions do not constitute proper evidence in this case.
II. STANDARD FOR REVIEW OF MOTION TO STRIKE
The Commission's evaluation of evidence and determination of admissibility is
govemed by Rule 261 of its administrative rules of procedure, which provides that the
presiding officer will generally follow the "rules as to admissibility of evidence used by
the district courts of ldaho." Pursuant to Rule 261, the presiding officer "may exclude
evidence that is inelevant, unduly repetitious, or inadmissible" and order the
presentation of such evidence to stop. !n determining whether to exclude Mr. Wenne/s
IDAHO POWER COMPANY'S MOTION TO STRIKE THE TESTIMONY OF ADAM WENNER.3
testimony, the Commission properly looks for guidance from the ldaho Rules of
Evidence ("lRE') and cases interpreting those rules. Additionally, the Idaho courts have
repeatedly held that federal case law interpreting the Federal Rules of Evidence
("FRE"), where the FRE at issue is substantively similar to the lRE, is both "relevant and
helpful." Sfafe v. Woodbury, 127 Idaho 757,758 (Ct. App. 1995); Sfafe v. Canasa,
117ldaho 295,298 (1990); Sfafe v. Vaughn,l24ldaho 576, 580 (Ct. App. 1993).
III. ARGUMENT
The Commission should exclude Mr. Wenne/s testimony for the following
reasons, described in detail below:
1. Mr. Wenne/s lega! opinion testimony is not admissible evidence
regardless of whether it is offered as either lay witness (lRE 701) OR expert witness
testimony (lRE 702).
2. Even if admissible, the recollections of a former agency staffer do
not form a proper basis for statutory interpretation and Mr. Wenne/s testimony is
therefore inelevant.
A. Mr. Wenne/s Lesal Opinion Testimonv ls lnadmissible.
As noted above, Mr. Wenne/s testimony in this case does not even purport to
present facts or data. Other than alleging certain facts regarding his personal career
and role at FERC-facts that are not at issue or relevant to this case-Mr. Wenne/s
testimony contains nothing more than his legal argument and opinions regarding the
very questions of Iaw that the Commission must decide in this case. As such, his
testimony is inadmissible.
IDAHO POWER COMPANY'S MOTION TO STR]KE THE TESTIMONY OF ADAM WENNER.4
The courts have concluded that testimony as to matterc of law amounting to legal
conclusions is not admissible, both because it is unhelpful and includes legal
conclusions. The ldaho Supreme Court has expressly held that "Witnesses are not
allowed to give opinion on questions of law . . . ." Carnell v. Barker Management, lnc.,
137 ldaho 322, 328 (2002). Additionally, ldaho courts have held that lay witnesses,
including police officers, may not testify to opinions on questions of law. Hawkins v.
Chandler, SS ldaho 20 (1964)(citing 20 Am. Jur., Evidence, $ 799;32 C.J.S. Evidence
S 453). The Ninth Circuit Court of Appeals has held that "an expert cannot testify to a
matter of law amounting to a legal conclusion." U.S. v. Tamman,782 F,3d 543, 552-53
(9th Cir. 2015); citing Aguilar v. lnt'l Longshoremen's Union,966 F.2d 443,447 (9th Cir.
1992)(recitation of facts and the legal conclusion that defendant acted in conformity with
SEC rules is not a proper expert opinion). "Experts interpret and ana[lze factual
evidence. They do not testify about the law." Crow Tribe of lndians v. Racicot, ST F.3d
1039, 1045 (9th Cir. 1996Xfinding that expert testimony is not proper for issues of
law)(citations omitted).
The courts have further found that the expert opinion of a lawyer regarding a
question of law is improper and inadmissible. ln United Sfafes v. Eastern Municipal
Water District,2008 WL 4755420 (CD Cal. 2008), a defendant in a lawsuit regarding
water rights presented the testimony of a water rights attomey to assist the court "in
weighing the veracity and propriety of plaintiffs' claims to any entitlement to water." The
plaintiffs moved to strike the attomey's testimony on the basis that his opinions were
impermissible legal conclusions. The court agreed, concluding that the lawye/s
opinions called for legal conclusions and would not help the trier of fact. ln so holding,
IDAHO POWER COMPANY'S MOTION TO STRIKE THE TESTIMONY OF ADAM WENNER - 5
the court cited numerous federal cases as support. United Sfafes v. Scholl, 166 F.3d
964, 973 (9th Cir. 1999)(stating that experts do not "testify about the law because the
judge's special Iegal knowledge is presumed to be sufficient"); Pinal Creek Group v.
Newmont Mining Corp.,352 F. Supp. 2d 1037, 1042 (O. Ariz. 2005)("federal courts
typically prohibit lawyers, professors, and other experts from interpreting the law for the
court or from advising the court about how the law should apply to the facts of a
particular case").
Pursuant to IRE 7O1, a non-expert witness may testify in the form of an opinion
only if the opinion is rationally based on the perception of the witness, helpful to a clear
understanding of the testimony of the witness or the determination of a fact in issue, and
not based on scientific, technical, or other specialized knowledge within the scope of
Rule 702. IRE 701. Opinion testimony by a lay witness is appropriate where the
witness is in a better position than the fact finder to draw a conclusion on an issue of
fact. See ldaho Trial Handbook S 16.1 (Non-Expert Opinion Testimony)(November
2O14)(citing numerous ldaho cases illustrating proper use of lay witness opinion
testimony). To the extent that ICUSC is offering Mr.Wenne/s testimony as the opinion
of a lay witness, it is clearly inadmissible. lt does not address a fact or facts at issue,
and Mr. Wenner himself states that the very purpose of his testimony is to provide an
opinion regarding a question of law. Wenner Dl at 1-3.
Pursuant to IRE 702, a witness qualified as an expert by knowledge, skill,
experience, training, or education may provide opinion testimony if the witness has
scientific, technical, or other specialized knowledge that "will assist the trier of fact to
understand the evidence or to determine a fact in issue." Ryan v. Beisner, 123 ldaho
IDAHO POWER COMPANY'S MOTION TO STRIKE THE TESTIMONY OF ADAM WENNER - 6
42, 46 (1992)(holding that a party offering expert opinion testimony must show that the
expert is a qualified expert in the field, the evidence will be of assistance to the trier of
fact, experts in the field would reasonably rely upon the type of facts relied upon by the
expert in forming his opinion, and the probative value of the opinion testimony is not
substantially outweighed by its prejudicial effect). The Advisory Committee's notes
regarding FRE 702, on which IRE 702 is modeled, emphasize that the key inquiry
regarding the admissibility of expert testimony is whether it wi!! be of assistance to the
fact finder and recommend a common sense inquiry into whether the fact finder would
be "qualified to determine intelligently'' the subject of the dispute "without enlightenment
from those having a specialized understanding.' FRE 702 (Testimony by Expert
Witnesses), Nofes of Advisory Committee on Proposed Rules (1975)(quoting Ladd,
Expert Testimony, 5 Vand. L. Rev., 414,418 (1952)).
Here, Mr. Wenne/s opinion regarding how PURPA and FERC's PURPA
regulations should apply to ldaho Power and the similarly situated utilities does not
meet the standard for admissibility, and should be stricken from the record. First, Mr.
Wenne/s Iegal opinion testimony regarding legal conclusions is inadmissible pursuant
to the relevant case law authority on that basis alone. Second, it is very difficult to see
how Mr. Wenne/s Iegal argument and opinion testimony could appreciably help this
Commission with the questions of law before it in this proceeding. The Commission is
more than qualified to consider mafters of public utility regulatory policy and interpret
applicable laws; it can do so without the "enlightenment" offered by Mr. Wenner.
IDAHO POWER COMPANY'S MOTION TO STRIKE THE TESTIMONY OF ADAM WENNER - 7
B. The Recollections of a Former Aqencv Staffer do Not Form a Proper Basis
for Statutorv lnterpretation.
Even if Mr. Wenne/s testimony were admissible, which, as demonstrated above,
it is not, it would not be relevant. Pursuant to IRE 401, relevant evidence means
"evidence having a tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable than it would be
without the evidence."
It appears that ICUSC and Mr. Wenner offer his credentials as a former FERC
staff lawyer to suggest that Mr. Wenne/s personal recollections and understandings are
evidence of how PURPA should be interpreted or of FERC's legislative intent in drafting
its PURPA regulations. To rely on Mr. Wenne/s testimony for either purpose is plainly
inconsistent with the goveming principles of federal law. ln interpreting PURPA, federa!
courts begin with a determination of whether Congress addressed the precise issue at
hand. Southern California Edison Co. v. FERC, 195 F.3d 17 (1ggg)(applying Chevron
USA lnc. v. NRDC, \nc.,467 US 837, 842-43 (1984)). When applying the Chevron test,
a court must exhaust the traditional tools of statutory construction (beginning with the
plain meaning) before deference to an agency's reasonable interpretation is appropriate
or warranted. ld. Even when deference to a federa! agency's interpretation of a federal
law is appropriate, it stands to reason that it is interpretations by the agency itself that
are entitled to deference, not statements made by a former agency lawyer. Accordingly,
Mr. Wenne/s opinion testimony is simply not relevant here. lf the Commission wishes
to review FERC's statements interpreting PURPA, it may perform a firsthand review of
publicly available agency documents, including the FERC orders and regulations that
Mr. Wenner references in his testimony.
IDAHO POWER COMPANY'S MOT]ON TO STRIKE THE TESTIMONY OF ADAM WENNER - 8
IV. CONCLUSION
For the reasons set forth above, the Commission should grant ldaho Powe/s
motion to strike Mr. Wenne/s direct and rebuttaltestimony from the record.
Respectfully submitted this 23d day of June.2015.
Attomey for ldaho Power Company
IDAHO POWER COMPANY'S MOTION TO STRIKE THE TESTIMONY OF ADAM WENNER - 9
CERTIFICATE OF SERVICE
t HEREBY CERTIFY that on this 23d day of June 2015 I served a true and
conect copy of IDAHO POWER COMPANY'S MOTION TO STRIKE THE TESTIMONY
OF ADAM WENNER upon the following named parties by the method indicated below,
and addressed to the following:
Gommission Staff
Donald L. Howell, ll
Daphne Huang
Deputy Attomeys General
ldaho Public Utilities Commission
472 W est Washington (83702)
P.O. Box 83720
Boise, ldaho 83720-007 4
J. R. Simplot Gompany and Cleanrater Paper
Gorporation
Peter J. Richardson
Gregory M. Adams
RICHARDSON ADAMS, PLLC
515 North 27s Street (83702)
P.O. Box 7218
Boise, ldaho 83701
Dr. Don Reading
6070 Hill Road
Boise, ldaho 83703
Clearwater Paper Corporation
ELECTRONIC MAIL ONLY
Carol Haugen
Clearwater Paper Corporation
lntermountain Energy Partners, LLC;
AgPower DCD, LLC; and AgPower Jerome,
LLC
Dean J. Miller
McDEVITT & MILLER, LLP
420 West Bannock Street (83702)
P.O. Box 2564
Boise, ldaho 83701
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daphne. huanq@ouc. idaho.qov
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oreq@ richardsonadams. com
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heather@ mcdevitt-m i ller.com
IDAHO POWER COMPANY'S MOT]ON TO STR]KE THE TESTIMONY OF ADAM WENNER - 1O
lntermountain Energy Partners, LLC
Leif Elgethun, PE, LEED AP
lntermountain Energy Partners, LLC
P.O. Box 7354
Boise, ldaho 83707
AgPower DCD, LLC, and AgPower Jerome,
LLC
Andrew Jackura
Camco Clean Energy
9360 Station Street, Suite 375
Lone Tree, Colorado 80124
ldaho Gonservation League and Sierra Club
Benjamin J. Otto
ldaho Conservation League
710 North 6th Street (83i02)
P.O. Box 844
Boise, ldaho 83701
Sierra Club
Matt Vespa
Siena CIub
85 Second Street, Second Floor
San Francisco, Califomia 94105
Snake River Alliance
Kelsey Jae Nunez
Snake River Alliance
223 North 6th Street, Suite 317
P.O. Box 1731
Boise, ldaho 83701
ELECTRONIC MAIL ONLY
Ken Miller
Snake River Alliance
PacifiGorp d/b/a Rocky Mountain Power
Daniel E. Solander
Yvonne R. Hogle
Rocky Mountain Power
201 South Main Street, Suite 24OO
Salt Lake City, Utah 84111
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yvonne. hoqle@pacificorp. com
x
IDAHO POWER COMPANY'S MOTION TO STRIKE THE TESTIMONY OF ADAM WENNER - 11
Ted Weston
Rocky Mountain Power
201 South Main Street, Suite 2300
Salt Lake City, Utah 84111
ELECTRONIC MAIL ONLY
Data Request Response Center
PacifiCorp
Twin Falls Ganal Gompany, North Side Ganal
Company, and American Falls Reservoir
District No. 2
C. Tom Arkoosh
ARKOOSH LAW OFFICES
802 West Bannock Street, Suite 900 (83702)
P.O. Box 2900
Boise, ldaho 83701
ELECTRONIC MAIL ONLY
Erin Cecil
ARKOOSH LAW OFFICES
Avista Corporation
Michael G. Andrea
Avista Corporation
1411 East Mission Avenue, MSC-23
Spokane, Washingto n 99202
Clint Kalich
Avista Corporation
1411 East Mission Avenue, MSC-7
Spokane, Washingto n 99202
ldaho lrrigation Pumpers Association, lnc.
Eric L. Olsen
RACINE, OLSON, NYE, BUDGE & BAILEY
CHARTERED
201 East Center
P.O. Box 1391
Pocatello, ldaho 83204-1 391
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I i nda. gerva is@avistaco rp. com
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IDAHO POWER COMPANY'S MOTION TO STRIKE THE TESTIMONY OF ADAM WENNER. 12
Anthony Yanke!
29814 Lake Road
Bay Village, Ohio 44140
Renewable Energy Goalition
Ronald L. Williams
WILLIAMS BRADBURY, P.C.
1015 West Hays Street
Boise, Idaho 83702
Irion Sanger
SANGER LAW, P.C.
11'17 SW 53'd Avenue
Portland, Oregon 97215
The Amalgamated Sugar Company
Scott Dale Blickenstaff
The Amalgamated Sugar Company, LLC
1951 South Satum Way, Suite 100
Boise, ldaho 83709
Micron Technology, lnc.
Richard E. Malmgren
Micron Technology, lnc.
800 South FederalWay
Boise, ldaho 83716
Frederick J. Schmidt
Pamela S. Howland
HOLLAND & HART, LLP
377 South Nevada Street
Carson City, Nevada 89703
Ecoplexus, lnc.
John R. Hammond, Jr.
FISHER PUSCH LLP
U.S. Bank Plaza, Seventh FIoor
101 South Capito! Boulevard, Suite 701 (83702)
P.O. Box 1308
Boise, ldaho 83701
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phowland@holland hart.com
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Email irh@fi sherpusch.com
IDAHO POWER COMPANY'S MOT]ON TO STRIKE THE TESTIMONY OF ADAM WENNER - 13
John Gorman
Ecoplexus, lnc.
650 Townsend Street, Suite 310
San Francisco, Califomia 94103
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IDAHO POWER COMPANYS MOTION TO STRIKE THE TESTIMONY OF ADAM WENNER - 14