20130904Motion to Strike.pdf

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ROCKY MOUNTAIN .i-1
POWER 4'1,1.r_n -!} i;i1 l$,C2A DrvrsroN oF pAcrFrco.p / ii i 'i ) ; i- '
Ma* C. Moench
Senior Vice President and General Counsel
201 S. Main Sfieet, Suite 2400
Salt Lake CiA, aT 84111
801-2204459 Ollice
801-2204058 Fax
mar *. mo en c h@p ac iJic o rp. c o m
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I;.::'i,
September 3,2013
VA ELECTORNIC FILING
AND OVERNIGHT DELIVERY
Jean D. Jewell
Commission Secretary
Idaho Public Utilities Commission
472W. Washington
Boise,lD 83702
Attention: Jean D. Jewell
Commission Secretary
RE: CASE NO. PAC-E-13-04
IN THE MATTER OF THE APPLICATION OF' ROCKY MOUNTAIN POWER TO
INITIATE DISCUSSIONS WITH INTERESTED PARTIES ON ALTERNATIVE RATE
PLAI\ PROPOSALS
Enclosed please find the original and seven (7) copies of Rocky Mountain Power's Response to
the Motion to Strike in this proceeding.
Please let me know if you have any further questions.
Sincerely,
Mark C. Moench
Senior Vice President and General Counsel
Rocky Mountain Power
Enclosures
Cc: Service List
Mark C. Moench (ISB #8946)
Daniel E. Solander (ISB #8931)
201 South Main Street, Suite 2300
Salt Lake City, Utah 84111
Telephone No. [phone]
Facsimile No. [phone]
mark. moen ch@p acifrcorp. c om
dani e l. so lan der @p acifrc orp. c om
Attorneys for Roclry Mountain Power
IN THE MATTER OF THE
APPLICATION OF PACIFICORPDBA ROCKY MOUNTAIN
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
POWER TO
DISCUSSIONS
INITIATE
WITH
CASE NO. PAC.E.I3.O4
MOTION TO STRIKE
INTERESTED PARTIES ON
ALTERNATTVE RATE PLAN
PROPOSALS
ROCKY MOUNTAIN POWER'S MOTION TO STRIKE
Rocky Mountain Power (the "Company") hereby submits its motion to the Idaho Public
Utilities Commission ("Commission") to strike the legal brief attached as an exhibit to the
testimony filed by Ms. Christina Zartora on behalf of the Community Action Partnership
Association of Idaho ("CAPAI") on August 23,2013, as well as the portions of her testimony
that: (l) generally complain about the burden of numerous rate cases while simultaneously
attacking Company's efforts to avoid such burdens through an alternative rate plan; (2)
incorrectly accuse the Company of failing to comply with CAPAI's discovery reques[ (3)
improperly rely on a legal brief that has already been withdrawn from the case; and (4) raise
legal issues on which Ms. Zamora admittedly is "not well versed" and puts forth inappropriate
legal conclusions in testimony. As discussed below, including a legal brief as an exhibit to the
testimony of a lay witness is highly improper, and the testimony by Ms. Zanora on these
subjects improperly draws legal conclusions, contains mistakes of fact that are not supported by
the record and is generally self-contradictory and confusing. In support of its motion, Rocky
Mountain Power states as follows:
1. On August 23,2013, Christina Zatrorapre-filed testimony in Case PAC-E-13-04
on behalf of CAPAI. Ms. Zamora's testimony addressed a number of issues, including: (l) the
burden numerous rate case filings by other Idaho utility companies places on CAPAI's limited
resources and the difficulty CAPAI faces internally when it seeks to intervene in a rate case; (2)
discovery issues that have already been resolved; and (3) legal opinions for which Ms. Zamora
has no expertise. Indeed, it is difficult to ascertain the purpose of Ms. Zatnora's testimony, other
than to raise procedural issues already raised in CAPAI's motion to compel, which has since
been withdrawn.
2. Ms. Zamora's testimony begins by outlining the financial burden that "nearly
annual" general rate cases - by Idaho Power, Rocky Mountain Power and Avista - have had on
CAPAI's limited resources. She opines about the uncertainty of federal funding for CAPAI, the
fact that CAPAI may be interested in participating in other cases, and the approvals it must
obtain from CAPAI's board of directors before the organization is permitted to intervene in any
given case. Ms. Zamora states that CAPAI has not been able to "meaningfully participate in
general rate cases." This testimony is not only irrelevant to the present case, but it is undermined
by the very procedure that underlies the Company's rate plan, which is a less costly altemative to
a general rate case. In the present case, CAPAI has intervened, participated in settlement
discussions, and conducted discovery. Thus, it appears that CAPAI has had the opportunity to
participate. Whether this participation precludes CAPAI from intervening in other cases is an
internal problem for which the Commission cannot provide relief. Lastly, despite the lengthy
discussion on CAPAI's limited resources, Ms. Zamora goes on to criticize the practice of
settlement negotiations. The very purpose of these negotiations is to limit the resource
expenditures involved with a fully litigated general rate case. As such, public policy has favored
settlement in lieu of litigation since time immemorial. Company requests that page 4,lines 22-
23, andpage 8, lines 9-24 be stricken from the record.
3. Next, Ms. Zamora's testimony describes studies that were done in Avista's
previous rate case - which has no bearing on this case and does not obligate Rocky Mountain
Power to perform such studies. The relevance of this portion of the testimony is unclear, but it
seems as though Ms. Zamora wishes to describe the usefulness of these studies in order to
compel - by means of a discovery request - Rocky Mountain Power to perform similar studies.
As discussed in the Company's Response to the motion to compel, this type of request is beyond
the bounds of lawful discovery; the Company is under no obligation to perform studies in
response to a request for documents. Even so, the Company did in fact provide CAPAI with the
study it requested. Thus, CAPAI's motion to compel was withdrawn. Strangely, Ms. Zamora's
testimony repeatedly refers to and relies on this withdrawn motion. As such, this portion of Ms.
Zarnora's testimony is irrelevant, seeks to address issues that have already been resolved, and
pages 12 lines 9-24,page 13 lines l-23,page 14lines 1-10, page 19 lines l5-2l,page20lines 1-
16, and page 2l lines 18-20, should be stricken from the record.
4. The most troubling aspect of Ms. Zamora's testimony is that she specifically
disclaims knowledge of "proper rate case procedure," yet the majority of her testimony critiques
the procedure in this case and relies heavily on a (withdrawn) legal brief. Despite her "limited
knowledge" Ms. Zamora improperly draws the legal conclusion that "the procedure employed in
this case is in violation of the law" and thus, "Rocky Mountain Power's application should be
considered withdrawn[.]". Confusingly, Ms. Zarrora asks the Commission to consider
Company's application withdrawn, yet her testimony repeatedly refers to CAPAI's motion to
compel discovery. Thus, the relief requested does not align with the relief requested in the
motion and even if it did, the Company aheady complied with the discovery request of CAPAI
as indicated by CAPAI's withdrawal of its motion to compel. The most appropriate means for
sorting out the confusion in Ms. Zamora's testimony is cross examination. However, Ms.
Zamora cannot be fairly and adequately cross-examined on legal issues that are beyond the scope
of her expertise and knowledge. This portion of her testimony is admittedly beyond the scope of
her expertise, unlawfully draws legal conclusions, and page 3, lines ll-I4,page 16,lines 9-13,
page lT,lines 1-6 and page 21, lines 9-13 should be stricken in their entirety.
(5). Because Ms. Zamora's testimony inappropriately relies on a legal brief, and
because the brief has been withdrawn from the case, the exhibit containing the brief should also
be stricken in its entirety.
WHEREFORE, Rocky Mountain Power respectfully requests the following:
That the Commission (1) grant Rocky Mountain Power's motion to strike; (2) disregard any
statements containing legal conclusions and (3) disregard the withdrawn legal brief on which Ms.
Zamora' s testimony relies.
RESPECTFULLY SUBMITTED,
This 3'd day of September 2013.
7,Q,0-6,2,k"'*l^--
Mark C. Moench
Daniel E. Solander
4
CERTIFICATE OF SERVICE
I hereby certifu that on this 3'd day of September, 2013, I caused to be served, via electronic mail, a true
and correct copy of Rocky Mountain Power's Stipulation Testimony in PAC-E-13-04 to the following:
Ted Weston
Rocky Mountain Power
201 South Main, Suite 2300
Salt Lake City, uT 841I I
ted. weston@pacificorp. com
Data Request Response Center
PacifiCorp
[e-mail]
Randall C. Budge
Racine, Olson, Nyc, Budge & Bailey
201E. Center
P0 Box 1391
Pocatello, lD 83204-1391
E-Mail: [e-mail]
James R. Smith
Monsanto Company
P.O. Box 816
SodaSprings,lD 83276
[e-mail]
Anthony Yankel
29814 Lake Road
Bay Village, OH44140
[e-mail]
Ronald Williams
Williams Bradbury, P.C.
l0l5 W, Hays St.
Boise, ID 83702
ron@will iamsbradbury. com
Tim Buller
Agrium, Inc.
3010 Conda Rd.
Soda Springs,lD 83276
[e-mail]
Brad Purdy
Attorney at Law
2019 N. 17ft St.
Bosie, ID 83702
bmourdv@.hotmail.com
Daniel E. Solander
Rocky Mountain Power
201 South Main, Suite 2300
Salt Lake City, UT 841I I
daniel. [e-mail]
Ken Miller
Snake River Alliance
Box l73l
Boise,ID 83701
[e-mail]
Neil Price
Deputy Attomey General
Idaho Public Utilities Commission
47 2 W, Washington (837 02)
P0 Box 83720
Boise,ID 83720-0074
neil.price@.puc.idaho. eov
Eric L. Olsen
Racine, Olson, Nye, Budge & Bailey
201E. Center
P0 Box l39l
Pocatello, ID 83204-l 391
[e-mail]
Brubaker & Associates
16690 Swingley Ridge Rd., #140
Chesterfield, MO 63017
[e-mail]
Benjamin J. Otto
Idaho Conservation League
710 N. 6tr St.
Boise,ID 83702
botto@ idahoconservation. org
Don Schoenbeck
RCS, Inc.
900 Washington St., Suite 780
Vancouver, WA 98660
[e-mail]
A,lrt/
Amy Eissler
Coordinator, Regulatory Operations