20120727Motion to Amend.pdf

i RECEIVED
2912 JUL 27 PM 3:131
R—MUMNA—AMWAM WK * 01i11f24J puc C I BL
ATTOR N EYS AT LAW UT!LmES CUMMSS1Ot
Tel: [phone] Fax: [phone]
P.O. Box 7218 Boise, ID 83707 - 515 N. 27th St. Boise, ID 83702
July 27, 2012
Ms. Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
472 W. Washington
Boise, ID 83702
RE: PAC-E-10-08 - XRG-DP-7, XRG-DP-8, XRG-DP-9, XRG-DP-10, LLCs'
MOTION TO AMEND COMPLAINT
Dear Ms. Jewell:
Enclosed please find the prepared XRG-DP-7, XRG-DP-8, XRG-DP-9, XRG-DP-10,
LLCs' Motion to Amend Complaint. Per the Commission's Rules of Procedure, we have
enclosed and original and seven (7) copies.
Sincerely,
Chynna C. Tipton
Richardson & O'Leary PLLC
end.
Peter J. Richardson
Gregory M. Adams
Richardson & O'Leary, PLLC
515 N. 27" Street
P.O. Box 7218
Boise, Idaho 83702
Telephone: [phone]
Fax: [phone]
[e-mail]
gregrichardsonandoleary.com
RECEIVED
2012 JUL 27 PM 3: t I
rLL'
1-1 1 t 1 ,ONkSu-n
Attorneys for Complainants XRG-DP-7, XRG-DP-8, XRG-DP-9, XRG-DP-10, LLCs
BEFORE THE
IDAHO PUBLIC UTILITIES COMMISSION
XRG-DP-7, XRG-DP-8, XRG-DP-9, XRG-DP-)
10, LLCs, ) Case No. PAC-E-10-08
Complainants, )
) XRG-DP-7, XRG-DP-8, XRG-DP-9, VS XRG-DP-10, LLCs' MOTION TO
PACIFICORP, DBA ROCKY MOUNTAIN AMEND COMPLAINT
POWER, ) Defendant. )
Pursuant to pursuant to Rules 56 and 66 of the Idaho Public Utilities Commission's Rules
of Procedure ("IPUCRP"), and the Commission's Notice of Scheduling Order No. 32600, XRG-
DP-7, XRG-DP-8, XRG-DP-9, XRG-DP-10, LLCs (referred to collectively as "XRG" or
"Exergy") hereby files this Motion to Amend its Complaint. XRG respectfully requests that the
Commission accept its First Amended Formal Complaint for filing and consideration, consistent
with the Commission's directive in its Notice of Scheduling Order No. 32600.
MOTION TO AMEND COMPLAINT
PAC-E-10-08
PAGE 1
BACKGROUND
XRG filed its initial Complaint on July 29, 2010, alleging that PacifiCorp (dba Rocky
Mountain Power) had failed process XRG's request for four power purchase agreements
("PPAs") by insisting that transmission capacity would be unavailable to accept the entire output
XRG proposed to deliver to Rocky Mountain Power. During discovery, on September 21, 2010,
Rocky Mountain Power admitted that it would be able to accept all of the output from XRG's
four projects and finally offered to process XRG's request for four PPAs. XRG then attempted
to settle the Complaint.
During settlement negotiations, Rocky Mountain Power, along with Idaho Power and
Avista, filed a joint petition in GNR-E-10-04 to lower the eligibility cap for published avoided
cost rates, such that the rates in Order No. 31025 available at the time XRG filed its Complaint
would become unavailable. Rocky Mountain Power lifted the stay on discovery in place during
discovery and filed a Motion for Protective Order and a Motion for Summary Judgment, arguing
that XRG was not entitled to the avoided cost rates in effect prior to March 12, 2010.
XRG filed an Answer, opposing summary judgment on its right to the rates in effect prior
to March 12, 2010. XRG also specifically noted "XRG's Complaint's request for any other
relief the Commission deems necessary should be read to include an alternative request for an
order entitling it to 4 PPAs containing the rates in Order No. 31025." XRG 's Answer to Rocky
Mountain Power's Motion for Summary Judgment at 18. In a footnote, XRG further stated:
To the extent the Commission disagrees that XRG's Complaint includes a request
for such alterative relief, XRG hereby requests leave to amend its complaint.
Under I.R.C.P. 15(a), "in the interest of justice, district courts should favor liberal
grants of leave to amend a complaint." Hines v. Hines, 129 Idaho 847, 853, 934
P.2d 20, 26 (1997). Because the availability of published rates has changed and
Rocky Mountain Power has admitted network transmission is available since the
MOTION TO AMEND COMPLAINT
PAC-E-10-08
PAGE 2
filing of the Complaint, XRG should be allowed to amend the Complaint to
include an alternative claim to entitlement to the intervening rates in effect when
it filed its Complaint if the Complaint cannot be read to request such alternative
relief.
Id at 18 n.9.
On May 18, 2012 - almost an entire year after oral argument on summary judgment was
held on June 9, 2011 - the Commission issued its Final Order No. 32553, concluding material
issues of fact precluded summary judgment yet nonetheless dismissing XRG's initial Complaint.
The Order did not address XRG's argument that its Complaint should be construed to include a
claim for alternative relief of the rates in effect at the time XRG filed its Complaint.
XRG filed a Petition for Reconsideration, again requesting that the Commission grant
XRG's "request for leave to amend its complaint to alternatively claim right to the rates in Order
No. 31025 (should the Commission construe the existing complaint not to include such relief)."
XRG 's Petition for Reconsideration at 1. The Commission granted XRG' s Petition for
Reconsideration in Order No. 32588. The Commission then issued its Notice of Scheduling
Order No. 32600, wherein the Commission for the first time addressed XRG's argument that it
should be entitled to the rates in effect on the date it filed its Complaint on July 29, 2010.
Specifically, the Notice of Scheduling Order No. 32600 stated:
No amended complaint has ever been received by the Commission.
Amendments are permissible pursuant to Rule 66 of the Commission's Rules
of Procedure. However, a mere mention in a footnote of what is otherwise an
answer to Rocky Mountain Power's Motion for Summary Judgment is not
sufficient to constitute a motion upon which the Commission can base a
ruling. If XRG seeks to amend its complaint it must do so pursuant to the
Commission's Rules of Procedure. See IPUC Rules 56 and 66.
Notice of Scheduling Order No. 32600 at 1-2.
MOTION TO AMEND COMPLAINT
PAC-E-10-08
PAGE 3
MOTION TO AMEND COMPLAINT
XRG respectfully submits that it was unaware the Commission would require it to file a
motion and amend its Complaint until the issuance of the Commission's Notice of Scheduling
Order No. 32600 on July 26, 2012. Until that time, the Commission had not yet ruled on XRG's
assertion in its Answer in opposition to summary judgment that the original Complaint should be
construed to include a claim for alternative relief of the rates in effect at the time XRG filed its
Complaint.
XRG' s position reasonably requested liberal construction of its initial Complaint. See
IPUCRP 66 ("Pleadings will be liberally construed, and defects that do not affect substantial
rights of the parties will be disregarded."); IPUCRP 327 ("Unless prohibited by statute, the
substance of orders and the reliefprovided by orders may differ from the relief requested or
proposed by any party... ." (emphasis added)). In Harper v. Harper, 122 Idaho 535, 835 P.2d
1346 (Ct. App. 1992), the Court of Appeals addressed the standard for dismissing a complaint -
which is how the Commission initially disposed of XRG's initial Complaint prior to
reconsideration. The Court stated, "It need not appear that the plaintiff can obtain the particular
relief prayed for, as long as the court can ascertain that some relief may be granted." Id., 122
Idaho at 536, 835 P.2d at 1347; accord Conley v. Gibson, 355 U.S. 41,48(1957). XRG
maintains that the Commission should liberally construe the original Complaint as requested by
XRG in its Answer in opposition to summary judgment filed February 22, 2011.
However, because the Commission's Notice of Scheduling Order No. 32600 appears to
request that XRG file an amendment to its initial Complaint, XRG respectfully requests leave to
amend its Complaint, and respectfully requests that the Commission accept for filing and
MOTION TO AMEND COMPLAINT
PAC-E-10-08
PAGE 4
consideration XRG's First Amended Formal Complaint. In this case, such amendment is proper
for multiple reasons. First, XRG reasonably expected from existing rules and case law that its
initial Complaint would be liberally construed and from the facts set forth therein the
Commission could "ascertain that some relief may be granted" - namely, the rates in effect at the
time the Complaint was filed. Id., 122 Idaho at 536, 835 P.2d at 1347 (emphasis added).
Furthermore, the First Amended Complaint is limited to additional facts and relief specifically
included in XRG's Answer in opposition to Rocky Mountain Power's Motion for Summary
Judgment. Thus, Rocky Mountain Power is not prejudiced because it knew XRG intended to
secure the very alternative relief XRG now proposes to set forth expressly in the First Amended
Formal Complaint at the request of the Commission. Moreover, Rocky Mountain Power has
itself argued in this proceeding that the only way XRG could entitle itself to vintage avoided cost
rates is to file a meritorious complaint prior to the date of the rate change. XRG did just that
prior to the rate change on December 14, 2010. To deny XRG alternative claim to those rates
after XRG attempted in good faith to settle this matter would be patently unjust.
CONCLUSION
For the reasons set forth above, XRG respectfully requests that the Commission accept its
First Amended Complaint for filing and consideration, consistent with the Commission's
directive in its Notice of Scheduling Order No. 32600.
MOTION TO AMEND COMPLAINT
PAC-E-10-08
PAGE 5
Respectfully submitted this 27th day of July, 2012.
RICHARDSON AND O'LEARY, PLLC
Richardson (ISB No: 3195)
Gregory M. Adams (ISB No. 7454)
Attorneys for the XRG LLCs
MOTION TO AMEND COMPLAINT
PAC-E-10-08
PAGE 6
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 27th day of July, 2012, a true and correct copy of
the within and foregoing XRG LLCs' MOTION TO AMEND COMPLAINT was served in
the manner shown to:
Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
472 W. Washington
Boise, ID 83702
[e-mail]
Mark C. Moench
Rocky Mountain Power
201 South Main Street, Suite 2300
Salt Lake City, UT 84111
[e-mail]
Daniel E. Solander
Rocky Mountain Power
201 South Main Street, Suite 2300
Salt Lake City, UT 84111
[e-mail]
Jeffrey S. Lovinger
Kenneth E. Kaufmann
Lovinger Kaufmann LLP
825 NE Multnomah, Suite 925
Portland, OR 97232
lovinger(LKLaw.com
[e-mail]
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Adams
RIHkDSON & O'LEARY PLLC
Attorneys for Complainant
MOTION TO AMEND COMPLAINT
PAC-E-10-08
PAGE 7