20200925Idaho Power Company Answer.pdf

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Lisa D. Nordstrom
AnD OORPCompaTry
P.O. Box 70 (8:1707)
1221 W. ldaho St.
Boise, lD 83702
LISAD. NORDSTROT
Lead Counsel
lnor$tromolaLhopowor.coln
Septembet 25,2020
VIA ELECTRONIC FILING
Jan Noriyuki, Secretary
ldaho Public Utilities Gommission
11331 W. Chinden Boulevard
Building 8, Suite 201-A
Boise, ldaho 83714
Re Case No. IPC-E-20-29
Mark Pecchenino vs. ldaho Power Company
Dear Ms. Noriyuki:
Attached for electronic filing, pursuant to Order No. 34602, is ldaho Power
Company'sAnswer and Motion to Dismiss.
lf you have any questions about the attached document, please do not hesitate to
contiact me.
Very truly yours,
X*!.fl^*+r..*,
LDN:slb
Attachment
LISA D. NORDSTROM (lSB No. 5733)
ldaho Power Company
1221 West ldaho Street (83702)
P.O. Box 70
Boise, ldaho 83707
Telephone: [phone]
Facsimile: [phone]
lnordstrom @ida hopower. com
Attorney for ldaho Power Gompany
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
Mark Pecchenino,
Complainant,
vs.
ldaho Poner Company,
Respondent.
Case No. IPC-E-20-29
IDAHO POWER COMPANYS
ANSWER AND MOTION TO
DISMISS
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COMES NOW, ldaho Power Gompany ('Respondent," "ldaho Powef' or
'Company") and pursuant to Procedural Rules 56 and 57, hereby answers the formal
Complaint of Mark Pecchenino ("Complainanf') filed July 15,2020, in the above-entitled
case ('Complaint'). ldaho Power's vegetation management is critical to public safety,
system reliability, access to facilities, regulatory complianoe, security, and fire risk
mitigation. ldaho Power has a robust vegetation management program to ensure these
objectives are met, and which complies with and follows the guidane of the National
Electric Safety Code ("NESC"), American National Standards lnstitute ("ANS|), and the
lnternational Society of Arboriculture (" I SA').
After describing its vegetation management program and the ability to access
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DTSMISS - 1
property to engage in vegetation management activities lawfully, the Company answers
and moves the Commission to dismiss the Complaint as follows:
I. INTRODUGTION. BACKGROUND. AND FACTS
Veg etati o n lt a n age me nt Auth o rity
1. ldaho Power's Vegetation Management Program is subject to federal and
state regulatory oversight. The Federal Energy Regulatory Gommission ('FERC")
oversees and approves reliability standards for the bulk transmission system. The state
and localjurisdictions have authority over the physical location (siting) of transmission
lines and strate agencies also oversee all aspects of the distribution system, including
vegetation management.
2. Vegetation management standards for distribution lines are regulated by
the utility regulatory commission within each state. ln ldaho, most vegetation
management that affects homeowners involves local distribution lines that are subject to
state regulation by the ldaho Public Utilities Commission ("lPUC").
3. ldaho law requires every public utility, including ldaho Poyver, to provide
safe and adequate service that promotes "the safety, health, comfort and convenience'
of the public. ldaho Code S 61-302 provides:
61-302. Maintenance of adequate service. Every public utility
shall furnish, provide and maintain such service,
instrumentalities, equipment and facilities as shall promote
the safety, health, comfort and convenience of its patrons,
employees and the public, and as shall be in all respects
adequate, efficient, just and reasonable.
4. The ldaho Legislature delegated its police power to ensure public safety by
giving the IPUC regulatory oversight over utility safety. ldaho Code S 61-515 authorizes
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 2
the IPUC to enact safety regulations for public utilities.l
5. ln 1993, the IPUC promulgated the Safefy and Accident Repofting Rules
for Uilities Regulated by the ldaho Public Utilities Commission. Rule 101 requires electric
utilities to abide by the provisions of the NESC.2 The NESC requires electric utilities to
maintain both vertical and horizontal clearanes near its power lines for public safety and
reliability. NESC Rule 218.A., Vegetation Management states:
1. Vegetation management should be performed around
supply and communication lines as experience has shown to
be necessary. Vegetation that may damage ungrounded
supply conductors should be pruned or removed.
6. To the extent that "[a] condition immediately dangerous or hazardous to life,
physical safety, or property exists, or if necessary to prevent a violation of federal, state
or local safety or health codes," the IPUC's Util$ Customer Relations Rules 303.01 and
604.01 permit utilities to deny service to new applicants, or terminate seMce to existing
customers, without notice.3
7. Vegetation threatening power facilities also constitutes a 'public nuisance,"
a condition contrary to law, to which the public and ldaho Power have the right to eliminate
under ldaho Code S 52-111.1 ldaho Power therefore trims trees that threaten to interfere
with its power lines and impact service to its customers, to avoid such public nuisance.
1 ldaho Code $ 61-515.
2IDAPA 31.11.01.101. The Commission adopted the 2017 edition of the NESC in April2019.
S|DAPA 3'1.21.01.303.01 for resirlentialcustomers; IDAPA 31.2'1.01.604.01 for industrial, large
commercial, and irrigation customers.
a ldaho Code $ 52-102 defines a public nuisance as'one which afiects at the same time an entire
community or neighborhood, or any considerable number of persons, although the extent of the
annoyance or damage inflected upon individuals may be unequal.'
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 3
Vqetation Management Pnctices Ovenriew
8. As the Commission noted in 2004, 'A good vegetation management
program reduces customer outages and maintiains system integrity.'s To comply with
NESC Rule 218, ldaho Pourer and its contractors perform vegetation management
around distribution lines on an approximately three-year cycle.
9. ldaho Power contracts with third parties to perform vegetation management
activities and requires specific training and certification requirements for each class of
worker. These vegetation management contractors are ldaho Powefs agents and, as
such, have the same rights and authority as the Gompany to manage vegetation and
maintrain appropriate clearances around ldaho Powe/s lines. This includes, and is not
limited to, authority pursuant to Rule C of ldaho Powefs tariff to 'trim trees and oher
vegetation to the extent necessary to avoid interference with the Company's lines to
protect public safe$." The Company has the right to periodically audit contractor training
records for any or all employees that perform work under the active contracts.
Contractors' leaders attest that their employees meet the contmct requirements before
being allowed by ldaho Power to invoice hours. Quality control audits of worksites are
also conducted on a sample of vegetation management crew worksites.
Vegebtion Management Notification
10. Before beginning vegetation management activities in a given work zone,
an informational e-mail is sent to customers that have a valid e-mail address on record a
few weeks in advance. An ldaho Power contractor then patrols the feeder and identifies
tree pruning and removal work necessary to prevent contact with power lines over the
5 ln the Matter of the Application of Avista Corponfon for the Authority to lncreas tfs Rates aN Chargas
for Electric and Natunl Gas Servrbe to Eledic and Natunl Gas Customets in the State of ldaho, Case
Nos. AVU-E-04-01 and AVU-G-(X-O1, Order No. 29602 at 18 (October 8, 20O4).
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 4
next three years. ldaho Power or its contractor then provides notice to the owner or
occupier of the property ("property agents") of the required work either through an in-
person meeting or by leaving a door-hanger along with a pamphlet describing Idaho
Power's vegetation management activities with a website address where the property
agent can find additional information and contiact ldaho Power with any questions.
11. An ldaho Power contrac'tor creates a work plan for the trees in ldaho
Powe/s vegetation managementsoftrare application, which is provided to ldaho Powe/s
vegetation management contractor and assigned to a crew. By contacting the notifier
listed on the door hanger, the property agent can also request notice the day before
commencement of the work. The day the work is to be completed, the vegetation
management crew arrives, performs the work identified in the work plan, cleans up the
work zone as described in the notification literature and other program materials, marks
the work plan as complete in the tracking software, and leaves a survey card at the
property agent's door.
Pruning Pnctices
12. ldaho Power contractors make pruning cuts designed to directionally prune
trees, maintain appropriate clearance from powerlines until the next pruning cycle,
minimize impacts to tree health, and comply wlth the ANSI A300 Pruning Standard.6
Compliance with the ANSI A300 Pruning Standard includes: performing a minimum
number of cuts, performing cuts outside branch bark collars without leaving stubs,
performing cuts at points of connection with lateral branches that are of adequate size
6 American National Standards lnstitute, ANSI A300 (Part 1) -2017, Tree, Shrub, and Other Wood Plant
Management - Strandard Practices (Pruning). These voluntary industry c{rnsensus standards are
developed by the Tree Gare lndustry Association and drafted by an Accredited Standards Committee
comprised of experts from industrial and government organizations.
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS.5
(i.e., greater than or egual to one-third the diameter of the parent branch), and at a slight
downward angle.T These pruning cuts are made in specific locations to prune the tree
and promote growth away from ldaho Power's lines (directional pruning). Directional
pruning involves removing branches growing torard ldaho Powe/s lines and leaving in
place those branches extending away from the lines. This resutts in the remaining
branches having a natural appearance (i.e., branches of varying lengths and Iaterals
growing from parent branches) even though the overall tree may not look symmetrical
due to bare spots where branches and foliage had to be removed.
13. To allow appropriate clearance, ldaho Powe/s contractors directionally
prune away from ldaho Power's lines to avoid leaves and branches from contacting the
lines before crews retum to the site for the next period (approximately a three-year cycle).
The distance created by the tree-trimming depends on the growth rate and growth pattern
for each specific tree. The Company and its contractors consider the tree species, branch
structure, local environmental condition, tree health, access to nutrients and water,
potential branch displacement due to the wind, power line voltage, and possible power
line displacement due to wind. To accommodate the different grorrth rates of these
species and avoid contactwith the power lines between pruning cycles, fastgrowing trees
such as poplars and willows are pruned to create a greater distance to the power line
than slowgrowing trees such as pine and spruce trees. This is to accommodate the
different growth rates of these species and avoid contact with the power lines between
pruning cycles. With so many factors involved in determining the appropriate clearance,
it is not practicaltofollow a single specification based on prescribed clearances. Instead,
the trained professionals performing the work use their professionaljudgment to obtain
7 ANSI A300 (Part 1) -2017 Pruning, Section 7
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 6
the appropriate and neoessary clearances to accommodate growth until the next three-
year vegetiation management tree-trimming cycle.
14. Upon determining the appropriate clearance, Idaho Powe/s contractors
perform the pruning consistent with the ANSI A300 Pruning Standard - specifically
Sections 7.1 General Pruning Cuts, 7.2 Branch Removal Cuts, and 7.3 Reduction Cuts
to not only achieve the required clearance but also minimize impacts to tree health and
promote growth away from ldaho Power's lines.s The below Figure 1 provides an
illustrative exampte of ldaho Powefs vegetation management near potirer lines in relation
to road rights-of-way and utility easements.e
Fioure 1
Clearance Pruning
aaaa
ratt aa
E{rof Row
or Easamrnt
15. Reduction, or crown reductions, are pruning techniques used in the line-
clearing process when appropriate. Paragraph 10.38 of the ANSI A300 Pruning Standard
0 ANSI A3@ (Part 1l -2017 Pruning, Section 7 (Pruning Cub),
eANSIA300 (Part 1)-2017 Pruning, Section 8.4 (Clearance Pruning)
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 7
tta
a
Iaaarl
1
Minimum point of vegetation removal to avoid
cncroachmcnt lrilo mlnimum clcarance envelope
durin3 the cycle.
. Depondsonspacies/growth 6lc, agc, hcalth,
avallable water/nutrlents and speclfic arowthpattcrns of thc trec.
. Depends on sag of wlrc at msx t mprrlturr
end wind displecament of wirc and branches.
2
Point of prunlng clts fior dlrectlonal prunlng and
compliancc with ANSI-A3@.
. Dcpends on branch rtructurc.
. No stubs. cuts made at live lrterals thit are at
lcast ld thc diamctcr of prrcnt branch belng
removsd.
defines reduction as an "arboriculturalterm referring to decreasing branch Iength, or plant
height and/or spread;" paragraph 10.39 further explains a reduction cut as "a pruning cut
that removes the larger of two or more branches or stems, or one or more codominant
stem(s), to a live lateral branch, typically at least one-third the diameter of the stem or
branch being removed."l0 ldaho Power and its vegetation management contractors
perform these cuts after considering tree health and structural integrity.
16. Topping is a form of pruning considered unacceptable by the ANSI Ag0O
Pruning Standard and is therefore not performed by ldaho Power or its vegetation
management contractors. The ANSI A300 Pruning Standard describes and defines
topping as follorrc:
8.6 Topping. Reduction of tree size by cutting to stubs without
regard for long-term tree health or structural integrity, shall be
considered an unaoceptable practice.
10.60 Topping: Reduction of tree size by cutting live branches
and leaders to stubs, without regard to long-term tree health
or structural integrity.
17. Rounding, or roundover, is a pruning practice where branches are pruned
to create a specific or desired look with a smooth surface similar to a manicured hedge
or sculpted shrub. The ISA defines roundover as a, "discredited pruning technique
whereby trees are severely reduced to a predetermined shape using heading cuts.'l1
Rounding results in small stubs that serve as entry points for insects and disease. Neither
Idaho Power nor its vegetation management contractors perform rounding.
18. ln the utility vegetation management context, "hazardous trees'are those
r0 ANSI A300 (Part 1l - 2017 Pruning, Sec,tion 10 (Definitions).
11 Utility Arboriculture - The Utility Specralst Certification Study Guide, Randatt H. Miiler and Geoffrey
Kempter, lntemational Society of Arboriculture, p. 230 (2018).
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS .8
posing a real and impending threat of structuralfailure that could result in falling across a
power tine. More specifically, "hazard trees'are within striking distance of power lines
and are dead, in poor health, or exhibiting structural problems that are likely to result in
falling into the power line.12 Pursuant to NESC Rule 218, such trees must be removed,
either partially or entirely, during each vegetation management tree-trimming cycle as
experience has shown to be necessary.
Debris Cleanup
19. As a general practice, the Company's vegetation management contractors
will chip and haul away pruned wood. Typica! cleanup activities also include raking and
sweeping up small debris in landscaped areas to the extent practicable.
20. The Company's vegetation management contractors generally do not haul
away wood largerthan four (4) inches in diameter. lnstead, because the largerwood may
have commercial value (such as firewood or woodworking material) and belongs to the
property agent, ldaho Power's contractors cut into manageable lengths and leave on the
property. lf the tree is in a landscaped area, the contractors attempt to stacUpile the
wood at the base of the tree.
21. Deadwood, which cannot be chipped because it can damage wood-
chipping equipment and is hazardous to the wood-chipper operator, is left on the property.
ldaho Powe/s vegetation management contractor cuts deadwood into manageable
Iengths and places the pieces at the base of the tree in landscaped areas or leaves in
place to biodegrade in non-landscaped areas.
12 A'hazard tree" is a'tree that has been assessed and found to be likely to failand cause an
unacceptable degree of injury, damage, or disruption . Hazard trees pose a high or exbeme level of risk."
td See also ANSI A300 (Part 7) -2018lntegrated Vegetation Management, pp. 14-15.
IDAHO POWER GOMPANY'S ANSWER AND MOTION TO DISMISS - 9
Public Righb of Way
22. When a power line is in the public road right-of-way, ldaho Power trims
branches that cross the vertical boundary to overhang into the road righhof-way. The
ldaho Power-owned distribution line referenced in the Complaint (the "Distribution Line")
is appropriately located in the Ten Mile Road right of way ("Road RO\M). The Distribution
Line delivers electricity to the Company's other power lines that tap off the Distribution
Line to serve the lots within the McClure Subdivision, including Complainant's property
(Lot 2 in Attachment 1). The Distribution Line meets all applicable NESC electrical
requirements and the Company's intemal power line design standards.
Rule C Riglrts of Way
23. As a condition of service, Section 7 of Rule C of ldaho Power's tariff filed
with the IPUC requires customers to grant ldaho Power a right-of-way at no cost.l3 This
right-of-way includes giving ldaho Power personnel (including ldaho Power contractors
acting on its behaCI reasonable access to facilities located on customers' property for
maintenance and vegetation management.
7. Riohts of Way. The Customer shall, without cost to the
Company, grant the Company a right of way for the
Company's lines and apparatus across and upon the property
owned or c,ontrolled by the Customer, neoessary or incidental
to the supplying of Electric Service and shall permit ac@ss
thereto by the Company's employees at all reasonable hours.
The Customer shall also permit the Company to trim trees and
othervegetation to the extent necessary to avoid intefiercnce
with the Company's lines and to protect public safety.la
13 l.P.U.C. No. 29, Tariff No. 101, Rule G (Service and Limitrations).
il The IPUG apprcved addition of the italicized language to Section 7 of Rule C in Advice No. 19{4
effecUve April 16, 2019.
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS. 10
Prtvab Easemenls
24. In addition to public road rights-of-way and Rule C right-of-way, ldaho
Power also obtains private power line easements over private land where necessary and
appropriate ("private easements"). ldaho Powe/s private easements are perpetual right-
of-way grants and typically include a defined easement width for Idaho Power's power
line facilities. Private easements are recorded with the County Recordefs office, and
copies are typically kept on file with the county.
25. ldaho Power has a valid subdivision utility easement for managing
vegetation and trimming trees on Complainant's property. Complainant's property is
shown as Lot 2 on the Amended PIat of McClure Subdivision ("Plaf'), which is included
as Attachment 1 to this Answer and Motion to Dismiss. The Plat includes a series of
Notes, including the following three (3) utility easement grants:
(3) All lots are here by designated as having a permanent public utilities,
drainage and inigation easement over the ten (10) feet adjacent to any
street that is dedicated to the use of the public and private lane. The
easement shall not preclude the construction of hard-surfaced driveways to
each lot.
(5) A ten (10) foot utility easement is located along the exterior boundary
lines.
(10) There will be a ten (10) foot public utility, drainage and inigation
easement lying five feet either side of the interior lot lines.
26. The above utility easements 3 and 5 grant ldaho Power a ten (10) foot utility
easement inside the east boundary of Lot 2, which lies adjacent to Ten Mile Road, as
shown on the Plat (the'Utility Easement").
ldaho lrespass Statutory Exemptions
27. ln 2018, the ldaho Legislature exempted certain activities from civil and
criminal trespass claims where individuals have lavvful or public safety authority to access
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 11
the private property
28. Fortree-trimming purposes, ldaho Code SS 6-202(7) (civiltrespass) and 18-
7008(6) (criminal trespass) use identical language to exclude application to individuals
who enter or remain on the property pursuant to the following rights or authorities:
(a) An established right of entry occupancy of the real property
in question, including, but not limited to: . . . (iii) A lease,
easement, contract, privilege or other lega! right to enter,
remain upon, possess or use the real property;
(b) A lawful authority to enter onto or remain upon the real
property in question, including, but not limited to: . . . (iii) Any
licensed professional othenrise authorized to enter or remain
on the real propefi during the course and scope of fulfilling
his lawfulduties; or
Any other person with a legally prescribed right to enter or
remain upon the realpropefi in question.
These statutes also provide illustrative examples of percons excluded from trespass,
including, but not limited to, ua meter reader in the scope and course of his employment"
and "power company personnelfixing downed power lines."1s
29. Although neither statute relieves any person from civil or criminal liability
under applicable law for causing damage while entering or remaining on the property
(even those lawfully entering),16 the statutory definition of ndamage" excludes cufting
down or injuring trees on another's land when conducted with'lawful authority," such as
that described in Section ll of this Answer and Motion to Dismiss.lT
II. ANSWER
30. Mr. Pecchenino did not make specifically numbered allegations in his formal
15 ldaho Gode SS 6-202(8) and 18-7008(7).
16 ldaho Code S$ 6-202(9) and 18-7008(8).
t7 ldaho Code SS 6-202(1Xc) and 18-7008(1Xc).
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 12
Complaint, but instead made general allegations in a narrative fomnat. Consequently,
ldaho Power generally denies Complainant's allegations and answers written in such
narrative, including the numbered paragraphs and statements included in ldaho Powe/s
Section I above. To the extent Mr. Pecchenino's allegations contain legalconclusions, a
response is not required by ldaho Power. Idaho Power reserves the right to supplement
and/or amend its Answer if Mr. Pecchenino amends his Complaint, responds to discovery
requests, or if additional defenses arise throughout the course of discovery or otherwise.
31. As detailed below, ldaho Power denies that it exceeded its tree-trimrning
authority with respect to Complainant's trees, or that it trespassed on Complainant's real
property. Complainant introduces numerous unfounded allegations and claims of
interactions with both Idaho Power and Asplundh (the Company's vegetation
management contractor). Accordingly, the Company clarifies these interactions to the
best of its ability but, considering some of Complainant's allegations occurred several
years ago, ldaho Power does not have access to certain contractor employees to confirm
or deny some of Complainant's allegations.
ldaho Power Personnel
32. Brent Van Patten is employed as an Engineering Leader in ldaho Power's
Planning, Engineering and Construction Department and has managed ldaho Power's
Vegetation Management team since June of 2018. Mr. Van Patten is a licensed
Professional Engineer in the state of ldaho in the discipline of Mechanical Engineering
and has been employed with the Company since 2006. Since 2007, before his current
vegetation management role, Mr. Van Paften led the ldaho Power Transmission and
Distribution Lines Construction, Station Construction, Project Portfolio Management, and
Joint Use teams at different times.
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 13
33. Employed as an ldaho Power Utility Arborist since November 2019, Tyler
Hopper is an ISA Certified Arborist, ISA Certified Utility Specialist, and ISA Certified Tree
Risk Assessor with approximately ten years of experience in utility vegetation
management. Mr. Hopper has also completed the Utility Vegetation Management
Professional Course which is offered jointly through the Utitity Arborist Association and
Utility Vegetation Management Association. Mr. Hopper previously worked for ldaho
Power's vegetation management contractor to notify customers of upcoming vegetation
management to be performed on ldaho Power,s system.
lncident 7,8 on July 6,2016
34. Work Performed. Although the Complainant alleges the first incident
occurred between 2017 and 2018,1e Haho Powe/s records indicate that ldaho powe/s
vegetation management contractor used a bucket truck and flaggers to perform tree-
trimming at the Complainant's property on July 6, 2016. The work included side trims on
six (6) poplar trees, crown reductions on three (3) poplar trees, and a side trim on one
willow tree. Attachment 2 to this Answer and Motion to Dismiss is a survey of the
Gomplainant's property and provides clarity regarding the specific locations and spacing
of the subject trees, Unlike Exhibit 2 to the Complaint,2o which is not drawn to scale and
thus has limited evidentiary value, Attachment 2 to this Answer and Motion to Dismiss is
a survey conducted by ldaho Power on September 16, 2020, showing the road right-of-
way, distribution line, tree locations, and utility easement to scale based on survey data.
18 For-consistelcy and ease of comprehension, ldaho Power uses the same "incident" language found onpage 6 of the Complaint.
le Complaint at 6.
20 Gomplaint at 5.
IDAHO POWER COMPANY'SANSWERAND MOTION TO DISMISS - 14
ldaho Ponrer also provides Figure 2 to illustrate the key components of the survey and
the fac6 that are misrepresented in Complainant's Exhibit 2.21 The green shading
represents the 'vegetation drip line' and indicates honv far the branches presently extend.
Trees 1,2,9,4, 13, and 14 are planted inside the 10-foot utility easement and all trees
shown in ldaho Powe/s Figure 2 aN Attachment 2 extend into the utility easement.
lu
2r Complaint at 5.
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 15
Fioure 2
Propcrty
Lln.
N
A'i Vegctetlon
Drlp Llnes
Rlght ot W.y
II lo,
.F Powcr Pole
oo,I
o
cf
=anot,o
5
Ovcrhead
Porvcr Llne
I5
Berbed Wlrr
Fence
tO'Platted Publlc
Utlllty Earement
20'Prop.rty
UneH
Nofe; Figure 2 is drcwn to scale in accordance with the suruey data included in
Attachment 2 (September 16, 2020).
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 16
35. Notification. Although Complainant alleges he did not receive notice,22
ldaho Power's records indicate the homeowner at Complainant's address was notified of
the upcoming work during a May 12,2016 site visit.
36. Damaoe to Trees. Complainant alleges Trees 1,2,3, and 4, identified in
both Attachment 2 and Figure 2, died as a result of topping and over-pruning from the
tree-trimming work performed during lncident 1.23 ldaho Power not only denies all sucft
trees are dead, ldaho Power further denies the declining tree health or deaths resulted
from the 2016 pruning. Potential causes of such declining health include water shortage,
nutrient deficiency, incompatible soil pH, disease, pests, herbicides applied along the
roadside for weed control, and ice melt chemicals applied to the roadway during winter.
ldaho Powefs April 28, 2020 inspection confirmed only Trees 3 and 4 arc dead, as
demonstrated by Figure 3 below. ldaho Power admits that Tree 2 is in poor health but
denies it is dead or creates a safety conoern to ldaho Power's !ine.
ut
22 Complaint a|11,32, and 33
a Complaint at 6.
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 17
Fioure 3
37. Grown Reduction Pruning. Complainant alleges ldaho Power employed a
"topping" technique not recommended by the ANSI A300 Pruning Standad.2a ldaho
Power denies this was the $pe of pruning employed on the Complainant's trees. Crown
reductions, as described in paragraph 15 above, are an ANS|-approved form of pruning
used to clear lines when appropriate. Crown reduc{ions are performed after considering
u Complaint at 6.
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 18
the tree health and structural integrity. Figure 4 is an illustrative example of the
differences between an unpruned tree, crown reductions, and topping.
Fioure 4
Unpuned Trce Crown Reducdon loppltt3
38. Lions Tailinq versus Clearance Pruninq. ldaho Power denies
Complainant's allegation that Trees 5, 6, and 7 were "severely over-pruned" using a
practice known as'lions tailing.'zs Lions tailing involves removing lateral branches along
a parent branch and leaving a nearly bare parent branch with a tuft of foliage at the end.
Figure 5 is an illustrative example of the lions tailing pruning practice. Neither ldaho
Power nor its vegetation management contractors prune trees using this practice. Rather,
branches are shortened by pruning them back to an appropriate lateral branch as
illustrated in Figure 1. ln some cases, these branches are pruned back to the trunk or
main stem to achieve proper clearance or when no suitiable lateral branch exists. This
practice, with which ldaho Power's contractor complied in this case, is "clearance pruning"
performed in accordance with paragraph 8.4.1 of the ANSI A300 Pruning Standard:
8.4.1 Branches growing toward specified clearance areas should
be reduced to lateral branches or rcmoved to parent stems
growing outside and/or away from the clearance area (see
subclause 1 0. 1 5 directional pruning).
25 Complaint at 6.
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 19
ln addition, ldaho Powe/s vegetation management contractor also performed in
accordance with the ANSI A300 Pruning Standard paragraph 8.4.2:
8.4.2 When a minimum clearance distance is required, a branch
removal or reduction cut should be made beyond the specified
clearance distance at a suitable branch union.
Fioure 5
Uons Taillng
lncident 2 on April 27, 2020
39. Work Performed. ldaho Power admits that on April27,2020, its vegetation
management contractor used a bucket truck and flaggers to perform side trims on five (5)
poplar trees, crown reduction on two (2) poplar trees, and a side trim on one (1) willow
tree. The dead tops in Trees 1, 5, and 6 were at risk of falling into ldaho Poweds line and
were therefore crown-reduced for deadwood to mitigate this risk. When removing the
dead tops from Trees 1, 5 and 6, ldaho Power's vegetation management contractor
complied with the ANSI A300 Pruning Standard by making reduction cuts at live laterals
and not Ieaving stubs. This is consistentwith the stated objectives outlined in Section 4.2
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISM]SS - 20
of the ANSI A3OO Pruning Standard to manage risk and tree health, as wel! as ensure
safe and reliable utility services. Because the remaining live portions of these particular
trees did not meet ldaho Power's criteria ior a"hazard tree,' itwas unnecessaryto remove
these trees entirely. ln Figure 2, Trees 5 and 7, along with Trees 9, 10, 13, and 14 (not
shown in Complainant's Exhibit 2),26 were side-trimmed. As shown in Figure 2, Trees 1
through 4 are either partially or fully planted in the Utility Easement. ln addition, the
vegetation drip line in Figure 2 indicates all of the tree canopies presently extend into the
Utility Easement. Further, these canopies extend up to, and in some cases past, the
Road ROW. Tree 13 is a willow tree that requires additional pruning with the canopy
extending beyond ldaho Powefs line as indicated in Figure 2.
40. Notification. ldaho Power denies Complainant's allegations that ldaho
Power did not provide advance notice of the tree-trimming.2' According to ldaho Power's
records dated March 30, 2020, Complainant was provided advance notice, via door-
hanger on Complainant's door at the subject property, of the upcoming work. ldaho
Power confirmed its contractor visited the property shortly after the COVID-19 social
distancing practices had begun. On either Friday, March 27 or Monday, March 30, 2020,
ldaho Power's contractor confirmed they walked from the road up the lane to the front
doorof the residence and placed the hanger on the doorwithout knocking to avoid making
contact with the homeowner pursuant to social distancing guidelines. The contractor
subsequently entered the day's notified locations into an electronic database. lf the
Complainant were to produce the recordings referenced on page 11 of the Complaint, as
zo Complaint at 5.
27 Complaint at 11
IDAHO POWER COMPANY'SANSWERAND MOTION TO DISMISS -21
requested in discovery2E by the Company, ldaho Power believes the records would
validate the exact date and time contractor arrived at the residence on either March 27 or
March 30.n
41. Deroqatorv Statements. ldaho Powerwholly denies tdaho Porver made any
derogatory statements as alleged by Complainant.3o lnstead, the Company admits these
discussions involved opinions about the completed work, impacts to the trees, proper
pruning techniques, notification practices, and ldaho Powe/s easements and rlghts to
prune Complainant's trees on private property. With respect to its vegetation
management contractor, although ldaho Pcnre/s investigation indicates no derogatory
staternents were made, ldaho Power is unable to confirm or deny the content of such
interactions based on lack of access to certain of its contractor's employees. Again, the
Company seeks copies of the video surveillance and/or voice recordings from
Complainant to demonstrate these disparaging remarks did not occur as Complainant
alleges.
42. Contractor Personnel and Training. Complainant alleges3l he saw onty
a ldaho Powe/s First Produc'tion Request to Mark Pecchenino filed July 24,zA2},ldaho Power,s
Reissued Firct Production Request b Mark Pecchenino filed August 27,2020 after the Summons uas
issued on August 21,2020, and the Complainant's response to ldaho Power dated September 16, 2020,
can be found in Attachment 3. As of the filing of this Answer and Motion to Dismiss, the Complainant has
refused to ptoduce the recordings and/or documentation referenced in his Complaint. lf the iomplainant
subsequently makes this information available, ldaho Power requests that it have an opportunig io review
and respond to the material in accordance with procedural due process.
2e Prior to leaving the door-hanger, ldaho Power also sent a pre-notification, informational e-mail to
customers who have an email address associated with their ldaho Power accounts, and frat are served
by the distribution feeder around which the bimming was completed. However, Complainant has not
associated an email address with his account and thus did not receive the emai! notice sent out prior to
the door-hanger left at his residence.
soSee Complaintat 11, 13, 32, 33, and 34 (e.g., calting Complainanta'lia/).
s1 Complaint at 6.
IDAHO POWER COMPANY'S ANSI'\'ER AND MOTION TO DISMISS - 22
three men on site that self-identified as a "tree pruner,' "helper," and 'flagger'"3z Each
crew is required to have eithera SeniorTrimmeror Foreman present. Both classifications
require certification from the lSA, Tree Care lndustry Association, or an equivalent
Company-approved training program. ldaho Polrrer recognizes the contractot's Line-
Clearing Safeg Qualffication training as an equivalent training program. All ldaho
Power's vegetation management contractor's Senior Trimmers and Foreman have
completed this training. According to the contracto/s timesheets and statements, the
crew Foreman was on site and involved in discussions with Complainant. The Foreman
supervised the work of a Trimmer and a Trimmer Trainee at the site; a traffic control
company also had personnel present.
43. Prunino Documentation. Complainant alleges he requested ldaho Power's
vegetation management contractor provide documentation or policies related to tree-
trimming services and the contractor had none to provide.33 Based on information
provided by such contractor's crew Foreman, ldaho Power denies Complainant ever
made such request. ln the event such a request had been made, the contractor has
documentation in every truck that explains proper pruning techniques.
44. Contractor ldentification. ldaho Power denies Complainant's allegation that
its contractor did not have identification or a work order authorizing tree-trimming on
Complainant's property.il ldaho Power confirmed with its contractorthat every employee
is issued an identification badge and is required to have identification on the truck; the
general Foreman performs daily checks to ensure appropriate identification. Each crew
u Gomplaint at L
33 Complaint at 7.
il Complaint at 7.
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 23
also has a tablet that includes the anticipated scope of work, which the crew Foreman
confirmed Complainant never requested.
45. Contractor Equioment. ldaho Power denies Complainant's allegation that
vegetation management contractor's truck used at the Complainant's property on April
27,202A, had only a lO-foot boom.3s None of the contracto/s trucks have a 1O-foot
boom; the truck on site had a 5S-foot lift that the crew used to safely access the trees in
question.
46. Responsibilitv for Damaqes to Personal Propertv. ldaho Power admits its
contractors are generally responsible for paying damages caused to personal property
while performing vegetation management activities. Complainant alleges that a
contractor employee indicated he would be suspended for damaging perconal property.36
ldaho Power confirmed with its contractor that it is not contracto/s policy to suspend
employees for damaging customer property or to require employees pay damages out of
their own pocket. The employee against whom Complainant asserts made these
statements was not the crew Foreman and is no longer employed by the contractor.
47. Conversations with ldaho Power Employees. ldaho Power denies the
Complainant's version of events on April 27 and 28, 2A20,37 with the exception of the
following: Tyler Hopper received an e-mail from ldaho Powe/s Customer lnteraction
Center ('ClC) on April 27,2020, stating Mr. Pecchenino called the ClC, was upset about
tree pruning activities on his propefi, and would like an ldaho Power representative to
contact him. Mr. Hopper called Mr. Pecchenino that same afternoon and agreed to meet
s Gomplaint at 8.
s Complaint at 9.
37 Complaint at 11-14.
IDAHO POWER COMPANY'SANSWERAND MOTION TO DISMISS -24
at his residence the following morning. Mr. Hopper met with Mr. Pecchenino at his home
around 8:00 a.m. on April 28,2020. ln Mr. Hoppe/s professional opinion as an arborist,
the work completed by the vegetation management crewwas appropriate and met ldaho
Powe/s requirements. Mr. Hopper ultimately referred Complainant to his supervisor,
Brent Van Patten. Following their meeting, Mr. Hopper contacted Mr. Van Patten, briefed
him on the issue, and provided the phone numberwhere he could reach Mr. Pecchenino.
48. Mr. Van Patten contacted Complainant by phone the morning of April 28,
2020, which was followed-up with an in-person meeting at Complainant's home around
noon that same day. Upon inspection, Mr. Van Patten determined the work generally met
ldaho Power's requirements. While he saw nothing wrong with the pruning, Mr. Van
Patten preferred some additional pruning on a couple of trees located at the north end of
the grove to minimize potentialencroachment on the power line before the next pruning
cycle (Trees 13 and 14 in Figure 2 and Attiachment 2). While deadwood left on the ground
follows ldaho Power's practices in non-landscaped areas, Mr. Van Patten also preferred
the deadwood be cut and arranged rnore neatly at the base of the trees. Mr. Van Patten
also observed two (2) dead trees at the south end of the grove (Trees 3 and 4 in Figure
2 and Attachment 2), which had been reduced sometime in the past. Because they were
short enough to pose no threat to ldaho Power's line, no work was performed on them
during lncident 2 on April 27,2020.
49. ldaho Poweds Debris and Tree Removal Offer. Complainant contends
ldaho Powe/s debris-removal and compensation for tree removals in the form of a
standard voucher are insufficient.s ldaho Power admits on April 28,2020, it offered a
crew to return to Complainant's property to prune more branches on the trees at the north
s Complaint at 29-30.
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 25
end of the grove and haul away the dead debris previously Ieft at the property. ldaho
Power admits it offered to remove the two dead trees (Trees 3 and 4) and provide the
standard voucher for tree removals despite there being no evidence Idaho Powefs
pruning techniques killed Trees 3 and 4. Complainant declined ldaho Powe/s offer,
50. Complainant's Tree Request. After declining its offer, ldaho Power admits
Complainant asked Mr. Van Patten on April 28,2020, to remove all damaged trees and
compensate with values commensurate with mature trees. Although Complainant
referred to these as "dead' trees, they were not dead and could be managed with
pruning.3e Except for the two trees mentioned above, the other trees are alive with green
leaves. Accordingly, ldaho Power did not agree to Complainant's request.
51. Damaged lrrioation Pioe. Complainant alleges ldaho Power's contractor
damaged an irrigation pipe and contracto/s employee paid to have it replaced.ao He
further alleges addltional out-of-pocked expenses associated with such replacement.al
However, Complainant failed to raise this issue of the replacement pipe being
unacceptable or the additional out-of-pocket expense he now claims during either of the
two April 28,2020 visits ldaho Power made to Complainant's property.
52. ldaho Power holds monthly meetings with its vegetation management
contractors. During such meetings, ldaho Power regularly discusses claims made by
customers regarding damages alleged against its contractors during perfonnance of
vegetation management services. lf Complainant contacted ldaho Power or its
vegetation management contractor regarding a damage claim, it would have been
ss Complaint al ll-14.
e Complaint at 9.
11 Complaint at 9.
IDAHO POWER COMPANY'S ANSVVER AND MOTION TO DISMISS - 26
reviewed in this meeting.
53. Atthough Complainant did not contact ldaho Power or its vegetation
management contractor regarding a damage claim, after reviewing the formal Complaint,
ldaho Power contacted Mr. Pecchenino on September 11, 2020, to gather more
information and schedule replacement of the pipe. ldaho Power admits that Gomplainant
is claiming unresolved damages associated with the irrigation pipe, but that Complainant
has also requested postponing resolution untila Iater date.
54. Trimmino Outside the Utilitv Easement. Complainant alleges ldaho Power
was not authorized to trim or remove trees outside the 1O-foot Utility Easement.a2
However, based on its April 2020 tree trimming activity and the surveyed distances shown
in Figure 2 and Attachment 2 to this Answer and Motion to Dismiss, ldaho Power did not
trim Complainant's trees beyond the 10-foot Utility Easement. The 1O-foot Utility
Easement is reserved for public utility use and any use of the Utility Easement by the lot
owner must not interfere with superior right of use by public utilities. In the present case,
Complainant allowed his trees to grow into and across the 10-foot Utility Easement,
extending into ldaho Power's Distribution Line located in the adjaeent Road ROW, as
shown in Figure 2 and Attachment 2 to this Answer and Motion to Dismiss. ldaho Power
had the right to trim the interfering trees back as it did, following its 3-year groMh trimming
standard. Although Complainant's Exhibit 2 is not drawn to scale, it appears to suggest
the trees and the corresponding branches do not extend into the Utality Easement.a3
However, ldaho Power's Figure 2 conectly reflects that all trees in question extend into
the Utility Easement at present, even after being trimmed by ldaho Powe/s vegetation
a2 Complaint at 17
€ Complaint at 5.
IDAHO POWER COMPANY'S ANSWER AND MOT]ON TO DISMISS .27
management contrastor.
55. lt is the property agent's responsibility to avoid planting trees or other
vegetation that will encroach on the platted Utility Easement and interfere with utility uses
of the designated 10-foot Utilaty Easement. !n the present case, the Complainant allowed
the subject trees to grow into the Utility Easement and interfere with ldaho powe/s
adjacent Distribution Line, requiring the Company to trim the trees under its standard
three-year growth trimming policy. Poplar trees, similar to Complainant's, are likely to
grow between 5 and 10 feet per year. The willow trees are likely to grow between 8 and
12teet per year. There are trees south of Trce 1 (not pictured in Figure 2) that have not
been pruned by the Company's contractor; they will likely require pruning in the future as
they begin to encroach on ldaho Power's line. This is also true of the conifer tree ([ree
15 in Figure 2, pictured behind Trees 3 and 4 in Figure 3).
II!. AFFIRMATIVE DEFENSES
56. Mark Pecchenino's Complaint, and all allegations and requests for relief
therein, fails to state a claim upon which relief can be granted.
57. ldaho Power and its contractors can legally access property to trim
vegetation that is touching or close to power lines using public rights-of-way, private
rights-of-way, or easements to protect public safety. The Company has the right to instialt,
operate, maintain, and protect the Distribution Line under the Road ROW and Utility
Easement. Property agents, including Complainant, do not have the right to interfere with
ldaho Power's facilities validly located within the Road ROW or Utility Easement to
provide service to the subdivision. ln the present case, Complainant's trees on Lot 2 were
interfering with the Distribution Line and the branches had grown too close to the
Distribution Line, creating a hazardous condition. Accordingly, ldaho power was entirely
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS .28
within its rights to trim the trees to protect and maintain adequate Distribution Line
ctearance during the next three-year vegetation management cycle.
58. The Commission is an agency of limited jurisdiction and may only exercise
authority delegated by the ldaho Legislature.# The Commission is not empowered to
award damages for losses, damages, or injuries.as Damage claims for trespass to real
or personal properg are tort matters that do not raise a utility customer issue within the
Commission's jurisdiction.a6
59. The Commission also lacks subject matter jurisdiction over Complainant's
claim under the Americans with Disabilities Act of 1990, 42 U.S.C. S 12101 et. seq.
("ADA"). Complainant fails to state a claim under the ADA upon which relief can be
granted. Complainant's claims are barred because Complainant's property is not a place
of 'public accommodation,' and Respondent did not deny Complainant full and equal
access to goods and services. Even if it were determined the ADA applies here, which it
does not, ldaho Power has not run afoul of ADA requirements with its vegetation
management practices raised in Complainant's Complaint. ldaho Power maintains
policies and procedures related to equal access and reasonable accommodation under
a Washington Water Power v. Kootanai Environmental Allianm, gg ldaho 875, 591 P.2d 122 (1979).
a5 tdaho Code g 61-702 provides that "any corporate or person' injured by the conduct of a public utility-
may file an "action to reiover such loss, damage or injury . . . in any court of competent jurisdiction . . ."
u Ctty of Spener, Complainant v. PacifrCorp DBA lJtah Power & Light Company, Respondenf, Case No,
UpL-E-91-0S, Oder Uo. Zat 14 (January 1992); Pamela and Scott Bowers, Complainants v. ldaho Povter
Company, Respondent, Case No. IPC-E-07-14, Order No. 30615 at 6 (August Z, Z0Q!)r_Gpce Joint
Sdrdol Distrtct'No. 148, Comptainantv. Qwest Corporation, Reqpondent, Case No. QWE-T-10{4, Order
No. 31 099 (June 3, 2010); ln the Matter of tdaho Power Company's Petitbn for a D*laratory Ruling
Regading its Rrgf,fs anci Obligations under Schedute 15, Case No. IPC-E-14-10, Oder No. 33065 at 2
(June 27, 2014).
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 29
the ADA and at no point ditl Complainant provide notice to tdaho Power of a disability
under the ADA or request a reasonable accommodation underthe ADA.
60. ldaho Power has not "condemned" or committed a "taking" of Gomplainant's
trees as asserted in the Complaint.aT First, as indicated in paragraph S0 above, ldaho
Power maintains that all of Complainant's trees in question are alive except Trees 3 and
4, and ldaho Power denies that its pruning techniques killed Trees 3 and 4. Accordingly,
there has been no "taking" of the trees to begin with. Second, ldaho Power is not a
government entity with the inherent right of condemnation that would be subject to a claim
of inverse condemnation. ldaho Code 7-701(11) provides a right of condemnation for the
following electric power uses:
11. Electric distribution and transmission lines for the delivery, fumishing,
distribution, and transmission of etectric current for power, lighting, heatingor other purposes; and structures, facilities and equipment for thi
production, generation, and manufiacture of electric current for power,
Iighting, heating or other purposes.
This provision grants the right of condemnation for electric power !!8, not to
electric power entities. ldaho Power has the right to condemn for electric facilities under
Section 7-7A1(1) like other entities engaging in power development in ldaho, but tdaho
Power does not have an inherent right of condemnation like a govemmental entity, and
thus is not subject to a claim for inverse condemnation ,,taking.,,
Third, as discussed in this Answer and Motion to Dismiss, ldaho Power had
the legal right to trim the interfering tree branches in question within the Road ROW and
within the platted Utility Easement, to protect the Distribution Line and maintain
compliance with the NESC. ldaho Power's power line has never caused damage to the
47 Complaint at 29-30,40.
.DAHO POWER COMPANY'S ANSWERAND MOTION TO DISMISS - 30
trees. Complainant allowed the tree branches to encroach into the power Iine and create
a dangerous condition, requiring ldaho Power to trim the branches back. Exercising a
legal right to trim encroaching tree branches to protect ldaho Power's facilities and public
safety does not constitute a *taking."
61. ldaho Power hereby reserves the right to assert any and all additional
defenses, ascertained during the course of discovery or otherwise, by amendment to this
answer as the Commission's rules, procedures, and/or Orders may allow and/orwithdraw
or amend the above affirmative defenses.
tV. COilIilIUNICATIONS AND SERVICE PLEADINGS
62. Service of pteadings and communications with reference to this case should
be sent to the following:
Lisa D. Nordstrom
ldaho Power Company
1221 West ldaho Street (83702)
P.O. Box 70
Boise, ldaho 83707
I nord strom@ ida hopower. com
dockets@idahopower. com
Brent Van Patten
ldaho Power Company
1221 West ldaho Street (83702)
P.O. Box 70
Boise, ldaho 83707
bva n patten@ idahopower. com
V. REQUESTED RELIEF
63. WHEREFORE, having fully answered, ldaho Power respectfully requests:
The Commission issue its Order denying the relief sought by Mark
Pecchenino in his Complaint's'Compensation - Remedy' request;
Mr. Pecchenino's Complaint be dismissed with prejudice and without cost
or delay; and
Such other relief as the Commission deems just and reasonable.
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 31
Dated at Boise, ldaho, this 25th day of September 2A2O
&L!.ff^u^-,-,
LISA D. NORDSTROM
Attomeyfor ldaho Povuer Company
IDAHO POWER COMPANY'S ANSWERAND MOTION TO DISMISS - 32
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 25h day of September 20201 serued a true and
correct copy of the within and foregoing IDAHO POWER COMPANY'S ANSWER AND
MOTION TO DISMISS upon the following named parties by the method indicated belour,
and addressed to the following:
Commission Staff
Dayn Hardie
Deputy Attorney General
ldaho Public Utilities Commission
472 West Washington (83702)
P.O. Box 83720
Boise, ldaho 837 20-OO7 4
Hand Delivered
_U.S. Mail
_Overnight Mail
_FA)(X E-mail [e-mail]
Mark Pecchenino
2173 N. Ten Mib Road
Kuna, ldaho 83634
_Hand Delivered
_U.S. Mail
_Overnight Mail
_FN(X E-mail [e-mail]
Stephanie Buckner, Executive Assistant
IDAHO POWER COMPANY'S ANSWER AND MOTION TO DISMISS - 33
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
GASE NO. IPC-E-20-29
IDAHO POWER COMPANY
ATTAGHMENT 1 . AMENDED PLAT OF McCLURE
SUBDIVISION
TO
IDAHO POWER COMPANY'S ANSWER MOTION TO
DISMISS
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BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
cAsE NO. IPC-E-20-29
IDAHO POWER COMPANY
ATTACHMENT 2 - PECCHENINO TREE SURVEY
TO
IDAHO POWER COMPANY'S ANSWER AND MOTION
TO DISMISS
FOUNDBRASSCAP 15 14
NORTHEASTCORNER LOT
-F
WLLOWIN NEED OF
ADDITTONAL PRUNING
NOTES:'r. slrE SURVEYED 9/14,2020 AND 9/16120202. PROPERVEASEMENT'RIGHTOFWAY
LINES S,}IOW{ HEREON ARE ESTASLISHED
BY THE SURVEYED SECTION LINE AND THE
RECORD LINES FROM THEAMENDED P]TT
OF MCCLURE SUBDIVISION.3. THETOPOGRAPHIC FEATURES SHOWT.I
HEREON WERE SURVEYED REMOTELY
WTH ATRIMBLE S7 ROBOTIC TOTAL
STATION USING REFLECTORLESS
METHODS..I. BASIS OF BEARINGS IS IDAHO STATE
PLANE WEST ZONE GRID AZIMUTH.5. TREES ARE NUMBERED BY THIS SYMBOqII
FOR IDENTIFICATION PURPOSES.
ieo
noao nronrorm!
VEGETATION ORIP LINE
BARBEDWIRE FENCE
1'WESTOF RIGHTOFWAY
a
1(I PLATIED PUBLIC
UTILITIES EASEMENT
LOT 2. BLOCK T
AMENDED PTAT
OF McLURE
SUBDIVISION
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EO
EO
%
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o
oE.
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=ztu
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POIA'ER POLE
7.85'
SECTION LINE
EVERGREEN TREE
MAIN TREE TRUNK
SYMBOLFYP)
OVERHEAD POWER LINE
I
I
I-*l
Lo
30.00'
10.00'
1 14 FOUND ALUMINUM CAP
14878
1.65E?2020
Eil
5
0f
DS: )fi)(SCALE: 1'= 20'DATE:0916/2020 PECCHENINO TREE SURVEY
ADA COUNTY, IDAHO
sEc. 15, T.2N, R. 1W B.M an Dtaonp cdrE nv
--,+*
DR: AMF
SHT:1/1 VrlO. NO.: iUASV: AMF
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
GASE NO. IPC-E-20-29
IDAHO POWER COMPANY
ATTACHMENT 3 _ IDAHO POWER'S FIRST
PRODUCTION REQUEST TO MARK PECCHENINO
FILED JULY 24,2020; IDAHO POWER,S REISSUED
FIRST PRODUCTION REQUEST TO MARK
PECCHENINO FILED AUGUST 27,2020;
COMPLAINANT'S RESPONSE TO IDAHO POWER.
SEPTEMBER 16,2A20
TO
IDAHO POWER COMPANY'S ANSWER AND MOTION
TO DISMISS
LISA D. NORDSTROM (lSB No. 5733)
ldaho Power Company
1221 West ldaho Street (83702)
P.O. Box 70
Boise, ldaho 83707
Telephone: [phone]
Facsimile: [phone]
lnord strom@ ida hooower. com
Attorney for ldaho Power ComPanY
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE RULE 54
FORMAL COMPLAINT OF MARK
PECCHENINO
CASE NO. IPC-E-20-29
IDAHO POWER COMPANY'S
FIRST PRODUCTION REQUEST
TO MARK PECCHENINO
COMES NOW ldaho Power Company ("Company'), by and through its attomey,
and hereby requests that Mark Pecchenino answer the following production requests
and provide the follorring information and documents in accordance with the
Commission's Rules of Procedure and appticable scheduling orders and notices to be
issued by the Commission in this proceeding.
Please provide information that is responsive to this rcquest as soon as possible
but no later than August 14,2020.
This production request is to be deemed continuing in nature and Mark
Pecchenino is requested to provide, through supplementation, additional documenB or
IDAHO POWER COMPANY'S FIRST PRODUCTION
REOUEST TO MARK PECCHENINO- 1
)
)
)
)
)
)
)
)
information that is responsive to this request that it, or any person acting on its behatf,
may later come into possession or beome aware of.
REQUEST NO. I:
Please proville a copy of any outdoor video surveillane of the Prcpefi for
Friday, March 27,2A20, and Monday, March 30, 2020.
REQUEST NO.2:
Please provide a copy of recorded audio and/or any other supporting
documentation b substantiate the claims of statements made by ldaho Power Company
personnel or personnel of its contrac{or, Asplundh, to Complainant as explicitly quoted
in the forma! complaint on page numbers *14,25-26, 29-31, 37, and 3g.
DATED at Boise, ldaho, this 24h day of Juty 2020.
X*!.ffa-*,.*,
LISA D. NORDSTROM
Attorney for ldaho Power Company
IDAHO POWER COMPANY'S FIRST PRODUCTION
REQUEST TO MARK PECCHENINO- 2
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 24h day of July 2020 I served a true and conect
copy of IDAHO POWER COMPANY'S FIRST PRODUCTION REQUEST TO MARK
PECCHENINO, upon the following named parties by the method indicated below, and
addressed to the folloring:
Commission Staff
Deputy Attomey General
ldaho Public Utilities Commission
11331 W. Chinden Boulevard
Building 8, Suite 201-A
Boise, ldaho 83714
Complainant
Mark Pecchenino
2173 N Ten Mile Road
Kuna, ldaho 83634
IDAHO POWER COMPANY'S FIRST PRODUCTION
REQUEST TO MARK PECCHENINO- 3
_ Hand Delivered
_U.S. Mail
Ovemight Mail
_FN(
-L Email [e-mail]
_ Hand Delivered
_U.S. Mail
Ovemight Mail
_FN(3 Email mpeccheninodDmsn.com
/** )-z/4*"_
Sandra Holmes,
Legal Administrative Assistant
LISA D. NORDSTROM (lSB No. 5733)
ldaho Power Company
1221 West ldaho Street (83702)
P.O. Box 70
Boise, ldaho 83707
Telephone: [phone]
Facsimile: [phone]
lnordstrom@ida hopower. com
Attomey for ldaho Power Company
BEFORE THE IDAHO PUBLIC UTILITTES COMMISSION
MARK PECCHENINO,
COMPLAINANT,
vs.
IDAHO POWER COMPANY,
RESPONDENT.
CASE NO. |PC-E-20-29
IDAHO POWER COMPANY'S
REISSUED FIRST PRODUCTION
REQUEST TO MARK
PECCHENINO
)
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coMEs Now, ldaho Power company ("company'), by and through its aftorney,
and hereby reguests that Mark Pecchenino answer the following production requests and
provide the following information and documenb in accordance with the Commission's
Rules of Procedurc and applicable scheduling orders and noties to be issued by the
Commission in this proceeding.
Please provide information that is responsive to this request as soon as possible
but no later than Septamber 17,2020.
This production request is to be deemed continuing in naturc and Mark Pecchenino
is requested to provide, through supplementation, additional documenb or information
IDAHO POWER COMPANY'S REISSUED FIRST PRODUCTION
REQUEST TO MARK PECCHENINO. 1
that is responsive to this request that it, or any person ac.ting on its behall may later come
into possession or become aware of.
REQUEST NO. 1:
Please provide a copy of any outdoor video surveillance of the Property for Friday,
March 27,2020, and Monday, March 30,2O2O.
REQUEST NO.2:
Please provide a copy of recorded audio and/or any ofier supporting
documenhtion to substrantiate the claims of stratements made by ldaho Power Company
personnel or personnel of its contractor, Asplundh, to Complainant as explicitly quoted in
the formalcomplaint on page numbers *14,25-26,29-31, 37, and 39.
DATED at Boise, ldaho, this 27h day of August 2020.
X* !.ff^t t,"*,
LISA D. NORDSTROM
Attomey for ldaho Power Company
IDA}IO POWER COIi/IPANY'S REISSUED FIRST PRODUCTION
REQUEST TO MARK PECCHENINO. 2
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 27m day of August 2A2O,l served a true andorrect copy of IDAHO POWER COMPANY,S REISSUED FIRST PRODUCTION
REQUEST TO MARK PECCHENINO, upon the following named parties by the method
indicated below, and addressed to the following:
Gommlsslon Staff
Dayn Hardie
Depu$ Attomey Genenal
ldaho Public Utilities Commission
11331 W. Chinden Boulevard
Building 8, Suite 2O1-A
Boise, ldaho 83714
_ Hand Delivered
_U.S. Mail
_Overnight Mail
_F$(X Email [e-mail]
Complalnant
Mark Pecchenino
2173 N Ten Mile Road
Kuna, ldaho 83634
_ Hand Delivered_U.S. Mail
Ovemight Mail
_F$(a Email [e-mail]
AA)Z/**_
Sandra Holmes,
Legal Administrative Assiatant
IDAHO POWER COMPANY'S REISSUED FIRST PRODUCTION
REQUEST TO MARK PECCHENINO. 3
September 16,2020
Re: Case No. IPC-E-20-29
Mark Pecchenino vs. Idaho Power Company
Response to IPC Second Production Request
Dear Ms. Noriyuki: Attached for electronic filing is the Complainant's ttsponse to the Idatro
Power Company Reissued First hoduction Request. The request is not in accordance with ldaho
Rules of Civil Prccedure specifically RP 225 01. O), whereas the request seels a copy of
recorded audio and/or any other supporting documentation concerning matters of opinion or
policy or the application of law, and/or policy statemenb of opinion by Idaho Porver
employees and/or their alleged contractor. Therefore, this request is not reasonably calculated
to lead to the discovery of relevant evidence as the information requested is of opinion in nature
and not addrcss the core issues of the Complaint, trtspass, arbitrary and cupr€ous policies,
trakings without due process and no ADA policies as addressed in the Complaint by t6he
Complainant.
Thercfore, the Complainant is denying their request for this reason and the rcasons stated below.
As previously stated, if the PUC deems this information curtail to their deliberation of the
Complaint and findings of facf the Complainant would respond promptly to any such requests
directly from the PUC.
REQUEST NO. t: Please provide a copy of any outdoor video surveillance of the Property for
Friday, Marph 27,2020, and Monday, March 30,2020.
RESPONSE NO, I:
l. The request is overly broad and unduly burdensome as no specific date or time was
requested just two day (48 hours).
2. Idaho Power has repeatedly olaimed to have proof of notice. The Complainant has
provided exhaustive testimony on this issue. This request is not reasonably calculated to
lead to the discovery of relevant evidence as the information requested will not produce
evidence to the matters at hand, addressing the core issues of the Complaint, trespass and
arbifary and cupreous policies. The Complaint has stated in the Formal Complaint " . . .
the policy suggests that by noticing they can do what they want on the Property without
regard to private property rights or trespass issues. Their policy states. ". , .we do likc to
notify our customers when access to thcir Trees or property is tacessary. . . " This policy
is an attempt to circumvent private property rights and statutes by implying that by
"notify our customers " somehow relieves the Respondent from trespass laws. . ." Again
the policy is arbitrary and capacious as it states "we do like to notifr" when it should say
we shall notifr. All ofthe Respondents policies are written to benefit them and not their
customers.
REQUEST NO. 2: Please provide a copy of recorded audio and/or any other supporting
documentation to substantiate the olaims of statements made by Idaho Power Company
personnel or personnel of its contmctor, Asplundh, to Complainant as explicitly quoted in the
formal oomplaint on page numbers 6-14,25-26,29-31,37, and 39. DATED at Boise, Idaho, this
2Tthday of August 2020.
RESPONSENO,2:
l. This request is overly broad and unduly burdensome. lt is vague lacking specificity as it
requests page numbers without specific questions.
2. The request is not reasonably calculated to lead to the discovery of relevant evidence and
has no bearing of the matters at hand, addrcssing the cor€ issues of the Complaint,
trespass and arbitrary and cupreous policies.
3. The request is not in accordanoe with ldaho Rules of Civil ProcedurB specifically RP 225
01. (b), whereas the request seeks a copy ofrecorded audio and/or any other supporting
dooumentation conoerning matterr of opinion or poliry or the application of lew,
and/or poltcy statements of opinion by ldaho Power employec and/or their alleged
contractor. Therefore, this request is not rcasonably calculated to lead to the discovery
of relevant evidence as the information requested is of opinion in nature and not address
the core issues of the Complaint, hespasg arbitrary and cupreous policies, takings
without due process and no ADA policies as addressed in the Complaint by t6he
Complainant.