19950221_1.docx

MINUTES OF DECISION MEETING
FEBRUARY 21, 1995 - 1:30 P.M.
In attendance were Commissioners Marsha H. Smith, Ralph Nelson and Dennis Hansen and staff members Scott Woodbury, Don Howell, Gary Richardson, Sid Lansing, Tonya Clark, Mary Friddle, Rick Sterling, Randy Lobb and Myrna Walters.  Also in attendance was Fred Logan of GTE and Jeanette Jackson of Idaho Power Company.
Items from the February 21, 1995 Agenda were discussed and acted upon as follow.
1.  Regulated Carrier Division Agenda dated February 21, 1995.
Approved.
2.  Scott Woodbury's February 10, 1995 Decision Memorandum re:  Case No. IPC-E-94-24  Auger Falls.  (Held from February 13, 1995 Decision Meeting)
Commissioner Smith reviewed the matter.  Said her thoughts were the security items that the Commission has instituted in the independent power contracts in order to protect the interest of the ratepayers and therefore thought the security provisions were imputed with the public interest and therefore the Commission should re-emphasize this.  Failure to comply with them would be default of the contract.
Scott Woodbury said these do not come out of a '292 security case.  There is security in there but this is more in the nature of a performance bond to insure that the project is developed and it requires an increment of larger amounts.  As far as..said he was not familiar with the negotiations of this particular contract.  As to the security provisions, think it is appropriate that the Commission require that they be included in a contract.  Think the timeline performance bond is appropriate in establishing security because the company is relying on a resource being built but in view of the statutory authority of the Commission finds little support for jurisdiction in this matter.  Would think if we had jurisdiction it wouldn't be primary.  The Courts when speaking to the Commission's deciding on giving an opinion as to contract language have not addressed the jurisdiction of the Commission to do so.  But were instances where the parties put the matter before the Commission.  Court said what they were given was a third party opinion.  Question as to whether we do this, would note that we don't have this matter being submitted voluntarily to the Commission.  Company points out the contract had a provision for dispute being before the commission.  In our order approving we tied the standard qualifying language to the jurisdiction of the Commission.
Commissioner Smith noted what Mr. Orndorff said.  He can't have it both ways.
Scott Woodbury asked - is the subject matter which is under consideration of such a technical nature that the Commission would be the natural party to make this determination and are liable to reach that conclusion?  As to other matters, there is no relationship to the responsibility of the rate or facility.  This doesn't pertain to electric curtailment.  Is his personal opinion that the Court has jurisdiction over this contract and any determination as to whether there was a breach, think Orndorff had an obligation to post the bond and a year has elapsed and whether there are damages, the Commission has no authority to award damages.
Commissioner Smith said her opinion was different from Scott's.
Commissioner Hansen asked - if the Commission does assert jurisdiction, don't the parties still have the right to appeal it to the Supreme Court?
Scott Woodbury said he thought we could be pulled right in to District Court.  Whether it is a direct appeal to the Supreme Court would think that is true, too.
Commissioner Nelson said - if we assumed jurisdiction and it was appealed, it would go to the Supreme Court and we would wait a year and a half.  Asked what the time line was if we make Idaho Power go to District Court?
Scott Woodbury responded - would think this Commission is better able to handle it quicker than District Court.
Commissioner Smith said it would be 1 1/2 years plus District Court time.
Don Howell said - 2 1/2 to 3 years, depending on how fast the parties what to push the issue.
Commissioner Nelson said Owen doesn't want to push it because Owen will have to cough up.  
Commissioner Smith said she was wondering if what Idaho Power wants is reassurance from the Commission that we don't reach in and say you can't do that.  Maybe this is their way of finding out how we see it.
Don Howell said they could declare the contract breached and terminate it and that issue would go to a Court.  Here they want protection from the Commission or evaluation of the terms and conditions and say it is breached or not breached.
Commissioner Nelson asked Scott Woodbury how strong the Commission position was if we decide there has or has not been a force majure condition?  Do you think we have any jurisdiction to make that decision?
Scott Woodbury said he didn't think we have the facts before us at this time.  Would have to have a hearing.
Commissioner Nelson asked if making a decision like that was part of contract law?
Scott Woodbury said yes.
Commissioner Smith said she would just as soon go ahead and decide it.
Scott woodbury asked if the Commission wishes to assert jurisdiction, procedurally would Commission like to go to a prehearing conference?
**Stephanie Miller in attendance at this time.
Commissioner Smith asked if a prehearing conference was needed?
Don Howell said he thought a hearing would be in order.  But who carries the burden?
For the purpose of hearing, Idaho Power should prefile testimony first and give Owen an opportunity to respond, Idaho Power rebuttal, etc.
Scott Woodbury said - haven't seen the underlying consent agreement which is basically failure to comply with the agreement that led to revocation of the 401 permit by DEQ.
Said the underlying question is do you want to assert jurisdiction to make those determinations?
Commissioner Smith said yes - Commissioner Nelson agreed.
Commissioner Smith asked - should we then divide it into two questions and issue an order and let Orndroff take the issue up?
Commissioner Hansen said there was nothing keeping Idaho Power from declaring a breach.
Don Howell and Scott Woodbury are to consult and decide on procedure and give the information to the Commissioners.
Meeting adjourned.
Dated at Boise, Idaho, this 23rd day of February, 1995.
Myrna J. Walters, Commission Secretary