20100616Motion to Strike.pdf

Benjamin J. Otto
ISB No. 8292
710 N 6th Street
POBox 844
Boise,ID 83701
Ph: [phone] x 12
Fax: [phone]
botto~idahoconservation.org
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Attorney for Idaho Conseration League
BEFORE THE IDAHO PUBLIC UTILITIES COMMSSION
IN THE MATTER OF THE
APPLICATION OF ROCKY
MOUNAIN POWER FOR AN
INCREASE TO THE CUSTOMER
EFFICIENCY SERVICES RATE
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)
)
)
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CASE NO. PAC-E-1O-03
MOTION TO STRIKE THE REPLY COMMNTS OF ROCKY MOUNTAIN POWER
OR, IN THE ALTERNATIVE, MOTION TO FILE OUT OF TIME IDAHO
CONSERVATION LEAGUE'S REPONCE
COMES NOW Idaho Conservation League, pursuant to IDAPA Rule 31.01.01.056 and
.256, with the following alternative motions. As provided in Rule 256, the Commission may
approve these motions with or without a hearig as it finds appropriate. Likewise, ICL is not
seeking expeditious relief and thus the Commission has foureen days to rule on these motions.
1. MOTION TO STRKE THE REPLY COMMENTS OF ROCKY MOUNTAI
POWER
Facts: Rocky Mountain Filed Their Reply Outside the Deadline Established by the Commission
On May 7, 2010, the Commission issued the Notice of Modified Procedure in this matter.
Order No. 31076. This Order notified all "that any person desiring to state a position on this
Application may fie a wrtten comment in support or opposition with the Commission no later
than 28 days from the date of this Order." ¡d., at 2 (emphasis retained). Rule 202 explains the
ICL'S ALTERNATIVE MOTIONS 1 June 16, 2010
Notice of Modified Procedure wil, "establish the deadline for filing wrtten protests or
comments, and a reply by the moving par." IDAPA 31.01.01.202.01(d). Despite the authority
to do so conferred by this Rule, Order No. 31076 did not establish a deadline for a reply.
Therefore, the plain languge of the Order establishes June 4, 2010 as the deadline for all wrtten
submissions.
The PUC Staff, members of the public, Idaho Irrgation Pumpers Association, and the
Idaho Conservation League all managed to fie their comments within this deadline. Rocky
Mountain did not. They could have asked for, and the Commission could have granted, an
additional deadline to fie a reply. They did not. Despite the unequivocal deadline established in
Order NO.3 1076 Rocky Mountain Power fied their reply on June 14,2010 -- ten days late.
The Rules: Modified Procedure is Premised Upon Adequate and Reliable Public Notice
The rules governing Modified Procedure are premised on the notion that the public
interest is adequately served by deciding matters on wrtten submissions alone. To ensure the
public interest is adequately served, the Rules require the Notice of Modified Procedure to,
among other things, "establish a deadline for filing wrtten protests or comments, and a reply by
the moving par." IDAPA 3 1.01.01.202.01(d). Rule 204 explains that "(i)fprotests, supports,
comments or a reply are filed within the deadlines, the Commission wil consider them and . . .
may decide the matter and issue its order on the basis of the wrtten positions before it." IDAPA
31.01.01.204. The Commission's Rules do not appear to allow consideration of wrtten
submissions fied outside the established deadline.
Rule 13 explains the Commission's Rules of Procedure "wil be liberally constred to
secure just, speedy, and economical determination of all issues presented to the Commission."
IDAPA 31.01.01.013. Allowing one par some undefined timeline to file a wrtten submission
ICL'S ALTERNATIV MOTIONS 2 June 16,2010
is not just, speedy, or economicaL. In fact, adhering to established deadlines is critical to
securng just, speedy and economical determinations. When wrtten submissions provide the
entire basis for the Commission's decision, adherence to the established deadlines is even more
important.
Rule 13 does allow the Commission to "deviate from these rules when it finds
compliance with them is impracticable, unecessar or not in the public interest." ¡d. Requiring
all paries to comply with the deadlines for wrtten submission is eminently practicable and
necessar. Moreover, deviating from the established deadline in this matter is not in the public
interest. The only way to adequately protect the public interest when utilzing Modified
Procedure is to ensure the Notice explains the rights and obligations for all interested persons.
The Notice in the case established a single deadline for all wrtten submission, which according
to Rule 204 would provide the basis for the Commission's decision. If the members of the
public and other paries cannot rely on the contents of the Notice and the plain languge of the
Rules of Procedure, their interest in fully paricipating in this matter is not served.
Prayer for Relief: The Commission Should Not Consider Rocky Mountain's Reply Brief
Rocky Mountain could have requested, and the Commission could have approved, an
additional deadline for a reply. They did not. The rules governing Modified Procedure state the
Commission wil consider only on those wrtten submissions fied within the deadlines. Because
Rocky Mountain did not fie their reply brief within the deadline, the Commission has no
authority to consider it and should strike it from the record in this case.
2. MOTION TO FILE OUT OF TIME IDAHO CONSERVATION LEAGUE'S
RESPONCE
ICL'S ALTERNATIVE MOTIONS 3 June 16, 2010
If the Commission denies the above Motion to Strke, ICL, in the alternative, respectfully
requests the Commission also accept Idao Conservation League's Response.
Facts: ICL's Response is Timely, Succinct. and Clarfies the Issues Before the Commission
On May 7, 2010, the Commission issued the Notice of Modified Procedure in this matter.
Order No. 31076. This Order notified all ''tat any person desirig to state a position on this
Application may fie a wrtten comment in support or opposition with the Commission no later
than 28 days from the date of this Order." ¡d., at 2 (emphasis retained). Rule 202.01(d) explains
the Notice of Modified Procedure wil "establish the deadline for filing wrtten protests or
comments, and a reply by the moving par." IDAPA 31.01.01.202.01(d). Despite the authority
to do so conferred by this Rule, the Order did not establish a deadline for a reply. Therefore, the
plain language of the Order establishes as deadline for all wrtten submissions June 4, 2010.
Rocky Mountain Power fied their reply on June 14, 2010 -- ten days after the deadline
for established in Order No. 31076. ICL's response is attached to this motion and is submitted to
the Commission just two days after Rocky Mountain's late filing. This response quickly address
three key issues that Rocky Mountain misrepresents in their reply. ICL feels compelled to take
this unortodox step because of our concern the mischaracterization of both our comments and
the prior Orders of the Commission cannot go unanswered.
The Rules: Deviation for the Rules of Procedure Must Serve the Public Interest.
The rules governing Modified Procedure are premised on the notion that the public
interest wil be adequately served by deciding matters on wrtten submissions alone. To ensure
the public interest is adequately served, the Rules require the Notice ofModified Procedure to
"establish a deadline for filing wrtten protests or comments, and a reply by the moving pary."
ICL 's ALTERNATI MOTIONS 4 June 16, 2010
IDAPA 31.01.01.202.01(d). Rule 204 explains that "(i)fprotests, supports, comments or a reply
are fied within the deadlines, the Commission wil consider them and . . . may decide the matter
and issue its order on the basis of the written positions before it." IDAPA 31.01.01.204. The
Commission's rules do not appear to allow consideration of wrtten submissions fied outside the
established deadline.
Rule 13 does allow the Commission to "deviate from these rules when it finds
compliance with them is impracticable, unecessar or not in the public interest." IDAP A
31.01.01.013. It canot be that compliance with the Modified Procedure rules is impracticable
because those rules authorize the Commission to establish a separate deadline for a reply, an
authority not exercised here. Likewise, it canot be that compliance with deadlines is
unecessar, otherwse matters could go unesolved while paries file wrtten submissions within
some unspecified timeline. Therefore, if the Commission accepts Rocky Mountain's late reply
then this deviance must be in the public interest. If the public interest is served by allowig one
part to fie mischaracterizations outside of the established deadline, then the public interest
requires allowing other paries to correct the record.
Rule 13 explains the Commission's Rules of Procedure "wil be liberally constred to
secure just, speedy, and economical determination of all issues presented to the Commission."
IDAPA 31.01.01.013. If the Commission believes that accepting one late fiing wil secur a
just, speedy, and economical determination, then it stads to reason so will an additional filing
that is timely, succinct, and corrects the record.
Prayer for Relief: If You Accept Rocky Mountain's Reply, Then Please Accept ICL's
The Notice of Modified Procedure issued in this case established a single deadline for all
wrtten submissions. If the Commission intends to accept the late fiing of Rocky Mountain,
ICL'S ALTERNATIVE MOTIONS 5 June 16,2010
thereby deviating from the Rules of Procedure, then the public interest requires allowing others
to do the same. This is paricularly tre when the public interest is being served solely though
wrtten submissions. Accepting ICL's response is just because it corrects the
mischarcterizations made by Rocky Mountain. It is speedy because this response comes just
two days after Rocky Mountain's late filing. It is economical, because the response is brief,
timely, and clarfies the issues. In short, if you accept Rocky Mountain's late filing, then ICL
respectfully requests the Commission consider ours.
WHREFORE, for the reasons stated above, ICL respectfully requests the Commission grant
this Motion to Stre the Reply of Rocky Mountain as fied outside the deadline established by
Order No. 31076. In the alternative, ICL respectfully requests the Commission grant this Motion
to File Out of Time Idao Conservation League's Response in order to serve the public interest
in this matter.
Submitted this 16th day of June, 2010 âv~Benjamin J. Oto
Idao Conservation League
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ICL'S ALTERNATIVE MOTIONS 6 June 16,2010
CERTIFICATE OF SERVICE
I hereby certify that on this 16th day of June, 2010, tre and correct copies of the
foregoing MOTIONS IN THE AL TERNA TIVE OF IDAHO CONSERVATION LEAGUE were
delivered to the following persons via the method of service noted:
Hand delivery:
Jean Jewell
Commission Secreta (Original and seven copies provided)
Idaho Public Utilities Commission
427 W. Washington St.
Boise, ID 83702-5983
ELECTRONIC MAL ONLY:
Daniel Solander
Senior Counsel
201 South Main, Suite 2300
Salt Lake City, UT 84111
Telephone: [phone]
Facsimile: [phone]
E-mail: DanieI.Solander~acifiCorp.com
Ted Weston
Idaho Regulatory Affairs Manager
201 South Main, Suite 2300
Salt Lake City, UT 84111
Telephone: [phone]
Facsimile: [phone]
E-mail: ted.weston~PacifiCorp.com
Eric L Olsen
Racine Olson Nye Budge & Baily
P.O. Box 13691
Pocatello, ID 83204-1391
elo~racinelaw.net
Anthony Yanel
29814 Lake Road
Bay Vilage, OH 44140
tony~yanel.net Ä.~Benlatto
CERTIFICATE OF SERVICE . June 16,2010