Monsanto Motion to Dismiss.pdf

MOTION TO STAY OR DISMISS - 1
Randall C. Budge, ISB 1949
RACINE, OLSON, NYE, BUDGE &
BAILEY, CHARTERED
P.O. Box 1391; 201 E. Center
Pocatello, Idaho 83204-1391
Telephone: [phone]
Fax: [phone]
Attorneys for Intervenor Monsanto Company
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
In the Matter of the Application of PacifiCorp )
dba Utah Power & Light Company for ) Case No. PAC-E-01-16
Approval of Interim Provisions for the Supply )
of Electric Service to Monsanto Company. )
)
MOTION TO DISMISS OR STAY
COMES NOW Monsanto Company (“Monsanto”), through counsel, and pursuant to Rules
56 and 256 of the Rules of Procedure of the Idaho Public Utilities Commission, and hereby moves
the Commission for the entry of an Order dismissing PacifiCorp’s Application seeking to establish
a new tariff pricing electric service to Monsanto. Alternatively, Monsanto moves the Commission
for an Order staying any further action on PacifiCorp’s Application until the termination date of the
existing Power Supply Agreement between PacifiCorp and Monsanto dated November 1, 1995,
approved by Commission Order No. 26282 has been established by the Court and expired. This
motion is made upon the grounds and for the reason that the Commission lacks jurisdiction to
establish any new rate for Monsanto, because the existing Power Supply Agreement has not expired.
For some time a dispute has existed between PacifiCorp and Monsanto regarding the
termination date of the Agreement. The dispute involves the interpretation of the Agreement, a
MOTION TO STAY OR DISMISS - 2
matter which lies in the jurisdiction of the Courts and not in the Commission as established by the
Idaho Supreme Court in Afton Energy, Inc. v. Idaho Power Company, 111 Idaho 925, 928, 729 P.2d
400, 403 (1986) and most recently in Idaho Power Company v. Cogeneration, Inc., 134 Idaho 749,
748, 9 P.3d 1204 (2000), to be discussed in greater detail in Monsanto’s supporting brief.
Monsanto filed on November 16, 2001, a Complaint for Declaratory Judgment against
PacifiCorp for the purpose of obtaining a Court interpretation of the Contract determining the date
of termination, copy of which is attached to Monsanto’s supporting brief. Said lawsuit was removed
by PacifiCorp from State District Court to Federal District Court and is now pending in the United
States District Court for the District of Idaho as Case No. CIV-01-0607-E-BLW.
Monsanto’s Contract with PacifiCorp and the rates established therein remain in full force
and effect until such time as the Federal Court establishes the termination date. Until such time, this
Commission lacks jurisdiction to establish any new or different rate for Monsanto.
Monsanto is prepared for oral argument and/or hearing on this Motion.
This Motion will be further supported by Monsanto’s supporting brief to be filed herein.
RESPECTFULLY SUBMITTED this 14th day of December, 2001.
RACINE, OLSON, NYE, BUDGE &
BAILEY, CHARTERED
By
RANDALL C. BUDGE
CERTIFICATE OF MAILING
MOTION TO STAY OR DISMISS - 3
I HEREBY CERTIFY that on this 14th day of December, 2001, I served a true, correct
and complete copy of the foregoing document, to each of the following, in the manner
indicated:
Jean D. Jewell, Secretary [ ] Hand Delivery
Idaho Public Utilities Commission [ ] U.S. Mail/Postage Prepaid
P.O. Box 83720 [x] Overnight Mail
472 W. Washington Street [x] Facsimile
Boise, Idaho 83720-0074
Fax: [phone]
John M. Eriksson [ ] Hand Delivery
Stoel Rives LLP [ ] U.S. Mail/Postage Prepaid
201 S. Main St., Ste 1100 [x] Overnight Mail
Salt Lake City, Utah 84111 [ ] Facsimile
Mary S. Hobson [ ] Hand Delivery
Stoel Rives LLP [ ] U.S. Mail/Postage Prepaid
101 South Capitol Blvd, Suite 1900 [x] Overnight Mail
Boise, Idaho 83702-5958 [ ] Facsimile
Doug Larson [ ] Hand Delivery
PacifiCorp [ ] U.S. Mail/Postage Prepaid
201 South Main, Suite 2300 [x] Overnight Mail
Salt Lake City, Utah 84140-0023 [ ] Facsimile

RANDALL C. BUDGE