20111227Response to Objection.pdf

Brad M. Pudy
Attorney at Law
BarNo. 3472
2019 N. 17tl S1.
Boise,ID. 83702
[phone] (Land)
[phone] (Fax)
bmpurdyWihotmaiL.com
Attorney for Petitioner
Community Action Parership
Association of Idao
l:9: 23
ili
BEFORE TH IDAHO PUBLIC UTILITIS COMMSSION
IN TH MATTR OF TH APPLICATION
OF PACIFICORP DBA ROCKY MOUNTAI
POWER FOR APPROVAL OF CHAGES TO
ITS ELECTRC SERVICE SCHEDULES
)
) CASE NO. PAC-E-11-12
)
) COMMTY ACTION
) P ARTNRSID ASSOCIA-
) TION'S RESPONSE TO
) OBJECTION TO PETITION
) FOR INTERVENOR FUNING
)
COMES NOW, the Communty Acton Parership Association ofIdao (CAPAI and,
provides the followig Response to Rocky Mounta Power's (R) Objection to CAP AI's
Petition for Intervenor Funding, emailed to CAPAI's legal counsel on Deember 23,2011.
I. BACKGROUNDffIMG AN NATUR OF RM'S OBJCTION
CAP AI's Petition for Intervenor Funding in ths case was :fled on Fnday, December 23,
2011. As evidenced by the :fle stp date on CAP AI's copy of the Petition on the PUC website
reveals, the Petition was :fled Fnday at 2:52 p.m. Though RM's Objection is dated December
23,2011, it is not clea, as of the date of ths Response, whether RM's Objection has even been
formally fied with the Commssion yet, let alone at what tie, on what date an whether in the
form required by Rule 61 of the Commssion's Rules of Pratice and Procedur, IDAPA
CAP AI RESPONSE TO RM OBJECTION TO INRVENOR FUNING 1
31.01.01.061. Ths is beause CAP AI only received an unigned, untaped copy of the
Objection by email and the Commssion's website shows no evidence of a formal :fling yet.
In fact, according to the undersigned's email, RMP emailed its Objection to the
undersigned at 12:58 p.m. on Fnday, December 23,2011, two hour before CAPAI even :fled its
Petition. Not expectig a par to object to his client's Petition for Intervenor Funding before it
was even :fled, CAP AI's attorney did not check his email Inbox for such an objection pnor to
fializing and :fling his client's Petition and wa completely unawae of RM's Objection when
he :fled CAP AI's Petition.
Because he spent Fnday aferoon, and into the night, photocopyig the Petition and
serving it on other paries, and did not check his emai on a Fnday night two days before
Chrstmas and volunteered to work with the poor on Satuy, CAP AI's counsel did not read
RM's ema or lear of the Objection until Chrstas morng, Sunday, December 25, 2011.
Because the undersigned had business commtments that will keep hi occupied thoughout
Monday, it ha bee necessa for the undersigned to forgo Chrstas dier with loved family
members, some of whom he might never see again given their ages and condition of heath, in
order to hastily dr ths Response to CAP AI's Objection.
Had he wished, RM's legal counsel who fied the Objection (M. Mark C. Moench), or
someone on his behalf, could have contacted CAP AI's counl via telephone to inorm hi of
the Objection on Fnday, but chose not to. i Though CAP AI's counsel strves to check his email
frequently throughout most every day, includig nights, weekends, and holidays, there are
periods of tie when no person has the ability to sty connected to the internet. The undersigned
1 Mr. Moench is shown as attorney of
record (Po Hac Vice) for RM in ths proceedg but is not a member of the
Idao State Bar and there appear no Motion or Order grtig hi liited adssion in th proding as required
by Rule 43 of the Commssion's Rules of Procedur, IDAPA 31.01.01.043. CAPAI is still investigating ths matter
and questions whether any pleadg signed by Mr. Moench in ths case on behalf ofRM is legally valid. Ifnot,
CAP AI conteds that the Objecon should be strcken from the record.
CAP AI RESPONSE TO RM OBJECTION TO INTERVEOR FUNING 2
did not have the opportty to log on to his email until Sunday. RM ha no legitiate basis to
assume that CAP AI's attorney would tiely reeive an email sent the aferoon of a Friday :fling
deadline day two days pnor to Chrstmas. RM should have errd on the side of caution given
the fact tht it was "pre-:fling" an objection to a hypthetica Petition, and given the tie of day,
day of the week and of the year, and ensured tht CAP AI had received the Objection in tie to
respond prior to the beginng of the next week when it is expected the Commssioners will
begin deliberations early in the morng in ths and other cases. Indeed RM is operating under
ths assumption as well which is why it ruhed to :fle its Objection prior to the weekend and not
the :frst thg Tuesday morng, December 27,2011.
Though RM and its legal counsel presumably enjoyed Chrstmas by the use of what
amounts to a ":fll-in-the-blan," "preemptive ste," ''jus-in-case'' pleadng in response to a
pleading that didn't even fuly exist yet, the undersigned's Chrstmas wa needlessly and
thoroughy ruined. The best that could be said for RM's behavior is tht it was grossly
negligent, disrespectfu, unprofessiona, and unpreceented.
Based on the perceived exigency of fully addressing the issues rased in RM's
Objection, CAP AI does not believe tht it ha sufcient tie to prepare, execute and :fle
affidavits supporting the facts alleged herein. Should the Commssion desire such afdavits,
CAP AI will gladly provide them promptly.
II. RM'S OBJCTION HAS NO LEGITIMATE BASIS IN FACT OR LAW
RM's Objection states tht the Compay "expets" CAP AI to seek intervenor fuding
without knowig whether CAP AI might actually seek fuding, in what amount or the detals
thereof. Thus, RM's Objection is stted in the abstrt and not a legal pleag based on a good
faith belief and knowledge of relevant facts. As such, it is diffcult to respond to. For intance, it
CAP AI RESPONSE TO RM OBJECTION TO INTERVENOR FUNING 3
attcks CAP AI's Petition as being excessive though RM ha no clue when it fied the Objection
what the amount sougt by CAP AI actuly ended up being. Furermore, it does not specify
which paricular aspects of the Petition for Funding is excessive or objectionable or why.
RM clealy intended to object to whatever reuest for fudig CAP AI might seek,
assuming it sought anytg, before the Petition was actuly fied. In fact, beause RM had
obviously pre-determed that it would oppose any inteenor fudig by CAP AI regardless of
the natu or amount, it is possible that RM could have made ths determtion at any point in
time, possibly days, weeks, even month pnor to Decmber 23,2011, but failed to share ths
intent until afer CAP AI ha preared and :fled its Petition on a Fnday two days before
Chrstmas. Even ifRM contacted the Commssion's Secreta late Fnday afrnoon and
obtaed a copy of CAP AIs actu Petition before :fling its Objection, it stil had a good faith
obligation to ensur that CAP AI was imediately inormed using a telephone, but chose not to.
The obvious reason is that RM's legal counsel and/or st wished to leave work early to enjoy
the Chrstmas holiday along with millons of other Americans. RM chose ths sttegy of filing
an objection to a hypothetica petition, knowig ful well tht CAP AI and its legal counel,
assumg they even leared of the Objection pnor to deliberations by the Commission, would
likely have to work over Chrstmas to provide a timely and meangf response pnor to the
commencement of deliberations by the Commssion early the next week. RM is also obviously
aware that CAP AI has already included its costs in the Petition for Fundig :fled Fnday which
mea that either CAP AI or its attorney will have to absorb the costs of a rued Chrstmas spent
workig responding to an unawf an grossly inppropriate plead. Ths is a perfect example
of the unethcal, mean-spinted atttue that CAP AI has had to deal with regardig RM and
certy in ths proceding as well as the 11-13 case.
CAP AI RESPONSE TO RM OBJECTION TO INTERVENOR FUING 4
Regarding RM's Objection itslf, the document cites no Commssion rue in its support.
This is because there ar none. Furerore, there are no laws contaed in Title 61 peng to
such objections. Ths might well be because the Idao Legislatue and the Commssion did not
envision such a procedural move on the pa of a public utility, pacularly in the nefarous
maner in which RM :fled its objection. Ths supposition is supportd by the fact tht the
applicable statutes and rues conta a clear set of gudelines and cntena for wheter a par is
entitled to intervenor fudig and how such an award is grted by the Commssion who has the
ultimat and exclusive authority and discretion in ruing upon fuding reuests.2 It is reasonable
to assume tht the Legislatue deemed the Commssion more th capable of weighg the
validity and reasonableness of fuding applications using the numerous sttutory cntena
enumerated in Idao Code Section 61-617A without the need to ask the utility, who is fuly
reimbured for all intervenor fudi awards and fincialy indifferent, for its opinon. No
doubt, the Commssion taes into consideration the validity of any fuding petitions based on the
many cntena set forth in Idaho Code Section 61-617 A and Rules 161-163 of the Rules of
Procedure and RM should have allowed ths long-stading process to tae its place. As
worded, RM's Objection does little more th cast negative accustions and inuendos against
CAP AI while offerig nearly nothg of substce.
Boiled down to its essence, RM's Objection seems based on the followig two
contentions: 1) the amount RM speculated CAPAI might possibly seek would, theoretically, be
excessive, and 2) the fudig available in ths cae should be "allocate(d)" to Case No. PAC-E-
11-13 (the" 11-13 " case) and no fuding should otherwse be available to CAP AI in ths cae.
The logical basis for the second premise is far from clear, if it exists at alL. As RM notes in its
Objection, CAP AI has alreay sought intervenor fudig in the 11-13 cas. Furermore, RMP
2 See, Rules 161-165, IDAPA 31.01.01.61-165. See, alo, Idao Cod Setion 61-61 7A.
CAP AI RESPONSE TO RM OBJECTION TO INTERVENOR FUNING 5
states that "it has no objection" to CAP AI's fudig request in the 11-13 case. Because of its
highly unusua natue, one must interpret the Objection by us of inerences, but the Company
apparently contends that the two caes ar completely identical as to render fudig in one case a
ful compensation in the other cae. For the reasns set fort below, ths is a gross
mischaractenzation of the two cass and simply not based in fact, law or common sense.
A. Cases PAC-E-ll- 12 and PAC-E-ll- 13 Are Not the Same.
The 11-13 cas was a proceedig in which RM submitted a seriously flawed stdy of its
LIW A progr based on severely limte and flawed data collecte by the Company and given
to its contractor. The study purorts to show that LIW A is not cost-effective without addig
"non-energy" bene:fts (e.g., reduction in areages and debt collection costs) which RM did
not even fuly evaluate. CAP AI retaed a nationaly renowned expert in the :feld of evaluating
LIW A programs, Roger Colton. Mr. Colton's anysis reveals tht LIW A is cost-effective even
without considenng non-energy bene:fts (which CAP AI believes the Commssion considers
relevant), and abundatly cost-effective when non-energy bene:fts are included.
In addition to mishandling the data collection porton of the LIWA evaluation process,
RM then sought an unawf order from the Commssion relievig the Company of any
obligation to conduct futue evaluations and approving what was purrtedly a non-cost effective
program. Concerned that nearly a decade of hard work by CAP AI to bnng LIW A fudig levels
and program design to a more reasonable level and correctly prectig tht the 11-13 filing
would have an adverse domio effect on Idao Power's and A VISTA's LIW A programs, CAP AI
invested considerable tie and expense in demonstratig tht RM's LIW A progr is amply
cost-effective and urging the Commssion to not issue a ruing tht could be legally chaenged.
CAP AI was also sensitive to the fact tht Sta oppose the notion of not conducting
CAP AI RESPONSE TO RM OBJECTION TO INRVENOR FUNING 6
futue evaluations of LIW A. Even though care blanche approval of LIW A would argubly be in
CAP AI's best interests, CAP AI stved to accommodate the concern of others and the
questionable legality of a Commssion ruing as proposed by RM and tae a more reasnable
approach to RM's unortate :fling. Ths placed CAP AI in a very diffcult position,
paricularly becaus RMP's evaluation was so vague and inconclusive which requid the
retention of an expert and expeditu of a considerable amount of money in advance in order to
prevent RM's failures from impugg the integrty of other LIW A progrs. In short, the
contorted maner in which RM fred its 11-13 application and the tig of that filing greatly
increased the amount of work requid of CAP AI in not only the 11-13 case, but RM's, Idao
Power's and A VISTA's general rate cas as well.
The most salient point is that the 11-13 case did not even purrt to addrss the
appropnate amount of LIW A fudig for RM's progr. Ths is somethg tht was addressed
in the rate case. To suggest that CAPAI had no right to seek increases in LIWA fudig in the
three rate cases is patently discriatory. Because the 11-13 case did create an opportty to
seek more fudig for what CAPAI confdently believes is a cost-effective DSM program with
system-wide bene:fts, it was necessar for CAP AI to seek ths result in RM's rate cas.
Furermore, CAP AI raised a number of other issues in the rate cas tht were not
involved in the 11-13 case including an opposition to anua general rate case :flings, and
expedited black box settlements. Finlly, the rate case also involves the futu of fudig for
RM's conservation education requied by the Commssion in Order No. 32224 issued April 18,
2011 discussed below.
Regardig the fact tht CAP AI ha sought fudig in both the 11-13 and ths case,
CAP AI notes that the 11-13 cas involved extmely complex principles, concepts and
CAP AI RESPONSE TO RM OBJECTION TO INTERVEOR FUING 7
methodologies usd in evaluatig the respective costs and bene:fts of LIW A. The arcane and
complex, and sophisticated natu of ths work requid a substantial amount of time on the par
of CAP AI, its legal counsel, and its expert Roger Colton. The 11-13 case involved the review of
substatial amounts of information generated by CADMUS and CAPAI's consultat.
Furhermore, it wa necessa for CAP AI, its expert Ten Otens and its legal counl to become
familiar with sophisticated modeling tehnques they had never encountered.
For its par the RM rate cae wa just as tie consumg as any other genera rate case,
if not more so beuse of the complicatig and chaotic effect of the simultaeously pendig 11-
13 case. As CAP AI has repeatedly noted, the effect of RM's 11-13 filing which thew all thee
LIW A progrs into chaos, the expeted settlement of thee cass by Sta and other paries in
late sumer, and the fact that CAP AI simply could not explain joing yet another thee black
box settlements to the customers it represents, espeially for RM who ha :fled and intends to
continue filing anua general rate cases, convinced CAP AI tht it had an obligation to its
constituents to stand :f in the face of seemigly endless rate increases and represent the
interests of low-income and residential cusomers alike. The fin consequence of all these
factors was to increase the amount of tie and money that CAP AI normly invests in any given
proceedig before ths Commssion. The decision by CAP AI to do ths was cey not made
lightly. At every point durg the past 8 month, CAP AI has always sought to provide the
Commssion with a meangf perspetive, different from the majority as it might be, that
would stil aid the Commssion in rehig its fi ruings.
B. RMP 2010 Rate Case-Commission Order No. 32224.
Durg RM's 2010 general rate ca, an issue was rased concerng RM's low-income
conservation education program and whether the Company had agred, in a pnor settlement, to
CAP AI RESPONSE TO RM OBJECTION TO INTERVENOR FUNING 8
fud the program on an ongoing basis. The issue was addressed durg the 2010 heag but not
fully resolved in the Commssion's Final Order No. 32196. CAP AI :fled a Petition for
Clarfication which was granted by the Commssion in Order No. 32220 (Apr 7,2011) and fully
briefed by CAP AI and RM. The Commssion ultiately determed tht the contiuation of
low-income conservation education was a complex issue and diected the paries to address it in
greater detal in the Company's anticipated 2012 rate case, the curent proceeding. The
Commssion found:
We fid tht it is both reaonable and appropriate to revisit ths issue in
the Company's next genera rate cas. The Commssion taes offcial
notice tht Rocky Mountai has alady filed its advance notice tht it
intends to file a new general rate case on or afer May 29, 20111.
Without reachig the ments of the issue, we generaly believe that
education programs addressing energy conservation provide valuable
inormation to low-income rapayers. We foresee that ths issue will
receive carefu attention from CAP AI, Rocky Mounta and Sta and
will be fuly resolved in the next genera rate proceedg.
Reconsideration Order No. 32224 at p. 5 (issued Apr 18,2011).
Based on the foregoing Order, CAP AI believed it ha an obligation to intervene in this
case, if for no other ren, to addrss the issue as outlined by the Commssion. Intervention in a
general rate case involves a considerable investent regardless of how few issues a par
addresses in the proceeding.
CAP AI does not contend tht it had no other reason to intervene in ths year's RM
general rate case than low-income conseration education. To the contr, there are may other
legitimate reasons for CAP AI's paricipation in ths case, but the Commssion clearly anticipated
such an intervention for at lea one speific issue. For RM to oppose all of CAP AI's requested
fudig on the basis that CAP AI "requi the Commssion and pares to spend tie on issues
CAP AI RESPONSE TO RM OBJECTION TO INRVENOR FUING 9
associated with the other low-income case" demonstrtes a woefu lack of undersding and
awareness of CAP AI's involvement in ths cae and pnor Commssion Orers and expectations.
C. CAP AI Acted in Good Faith in Partcipatig in Current Case.
Though no intervenor should ever assume tht it will receive intervenor fudig, every
intervenor should assume tht so long as it complies with and satisfies the numerous cntera set
fort in statutes and rues tht it will at leas have an opportty to seek such fudig without its
petition being rejected outrght. RM's arguents, when one attempts to make sense of them,
suggest that CAP AI never ha any hope of obtag fuding in the rate cae beause RM had
filed another, distct proceedig and because RM, in its inte hidsight wisdom, has deemed
CAP AI's parcipation in ths cae not worty of intervenor fudig.
Ths self-serving and presumptuous arguent overlooks the fact that CAP AI sought and
was grted intervention without any objection by RM. If the Commssion believed that
CAP AI should not fuly paricipate in ths case as a formal par (and have the right to at least
seek interenor fuding), it would not have granted CAP AI interention. Similarly, ifRM
believed that CAP AI did not have ful par's rights, then it should have opposed intervention or
at some ealy point in the proceing, or made some tye of motion to limt or effectively evict
CAP AI from this cas. RM not only failed to tae these steps, but acted to the contrar.
For example, just last month RM submittd a massive set of discovery requests to
CAP AI that constitute hundrds of separte requests, many of which are compound requests. In
reality, if every discovery request submitt by RM to CAP AI in November were counted, it
would add up to many hundred. Ths massive discover request required CAP AI sta and
CAP AI's legal counsel to work on Thansgivig Day, nights, and weekends in an attempt to
provide a good faith response to RM's discvery in ths proceg. Furermore, RM began
CAP AI RESPONSE TO RM OBJECTION TO INERVEOR FUNING 10
a constat series of communcations with the Communty Action Agencies, CAP AI sta and
CAP AI's legal counsel. Ths consumed an extrrdin amount of time by CAP AI and its
constituent agencies for which CAP AI doesn't even seek fuding. If RM intended to object to
intervenor fudig literaly weeks afer recivig CAP AI's discvery responses, it had an
obligation to convey ths unusua position to CAP AI before putting CAP AI though all of the
work created by redundat and irlevant discovery request for which RM alady had the
majority of inormation sought. The discovery, like RM's Objection, was retaiatory in natue
though CAP AI made a goo faith attempt to respond to it. RM should not be permtt to stad
idly by not only allowig but paricipatig in causing CAP AI to incur substtial time and
expense if it intended to object to any compensation to CAP AI for such expenditue.
Therefore, though CAP AI does not assert tht it ha any "right" to intervenor fuding, it
acted in good faith reliance on the grtig of its intervention, non-opposition by RM, and
RM's treatment of CAP AI as nothg less th a formal par, and ha a reasonable expetation
of the right to at leas seek intervenor fuding. RM is estopped by ths good faith reliance from
now challenging CAP AI's Petition for Funding outrght.
D. CAP AI's Request for Fundig Is Reaonable.
Without any idea of what CAP AI would ultimtely seek in term of intervenor fuding,
RMP simply assumes it will be excessive and "would amount to more than 5% of the low-
income weathenzation anua fuding." Furer, RM support ths arguent stating that
CAP AI "did not rase issues or offer expert testimony on issues relevant to the general rate case."
Ths asserions are factuly incorrect and wrng-headed.
Firt, there is no logical reasn to gauge the reasonableness of CAP AI's intervenor
fudig request (which is spre out over all cusomers) by the amount ofRM's LIWA fuding
CAP AI RESPONSE TO RM OBJECTION TO INTERVENOR FUNING 11
(which provides direct benefits to low-income cusomer but system-wide bene:fts to all).
Regardless, RM's comparson simply reveals how minimal its LIW A fudig is.
Second, CAP AI's involvement over nearly the past decade in RM's and other utilties'
LIW A progr, along with supportve Commssion orders, have resulted in considerable
fuding increases to a progr that provides benefits to all cusomer and paricularly the poor.
Thrd, CAP AI rased a varety of issues and concer it ha regarding the requestd rate
increase that were not at issue in the 11-13 cae. For example, CAP AI objects to anua general
rate case :flings, especially by RM who ha :fled for a genera rate increae in roughy 5 out of
the past 6 year. CAP AI objects to the lack of transparncy resulting from black box settlements,
which the settement in ths case clearly is. CAP AI expressed concern regarding the state of
povert in Idao, the expanding number of residential customers who quaify as low-income, a
failure by the pares to the settlement to increase LIWA fudig to achieve party, a pnnciple
that CAP AI believes is relevant to the Commssion uness dictly inormed otherse and,
finaly, CAPAI's position on the contiuation of low-income consrvation education which was
addresse by CAP AI and seems to be resolved between RM and CAP AI. None of the
foregoing issues were addressed in or resolved in the 11-13 case.
Regardig the actu costs sought by CAP AI in its fuding petition, RM fails to mention
that followig its submission of hundreds of objectionable discovery requests, and knowig tht
CAP AI was preparg for two rate case heargs, and stil involved in a thid, and given the
holiday season, the Company began makg a series of inormal "inquies" of the Communty
Action Agencies in its servce tetory including SEICCA and EICAP. These "inquines" were,
in reaity, inormal discvery requests sought for the purse of litigation agai CAP AI.
Furermore, they were made not only without notifying CAP AI's attorney, but without even
CAP AI RESPONSE TO RM OBJECTION TO INRVENOR FUING 12
notifying CAP AI sta. As these inquies increasd in frequency and magntude along with the
pressure being applied by RM to the agencies seekig expedted responses, the agencies
notified CAP AI who then noti:fed its legal counsel regardig what was occurg and expressing
concern over respondig to RM's many demands durng the CAP's busiest tie of year (heating
assistace intae) and the holiday seasn.
At fit, CAP AI made a good faith attempt to provide responss to inormation requests.
As the scope and magntude of the requests and pressur for prompt replies grew to be too much,
CAP AI's attorney notified CAP AI who notifed the agencies to ru all reuests thugh CAP AI
and its attorney for review. It was quite evident that RM had end-ru the prescnbed discovery
process for contested cases and CAP AI's attorney inormed his client to not provide fuer
responses though much damage ha alady been done. Incidentaly, Sta was engaging in the
same procedure seekig inormtion related to both the RM and Idao Power heargs. Despite
repeated requests that Sta cease such inquines they continued requig CAP AI's attorney to
send an email to Stas attorney tht such inquies were a violation of procedur rues, were
unduly burdensome, and that the CAP agencies would no longer respond. Stas attorney never
replied and the request contiued.
Because of the fact that CAP AI's attorney was constatly consulted regarding his legal
opinion and the pressur the agencies felt they could not hadle in light of the busy heating
assistace season and holidays, ths inappropnately consumed substtial amounts of CAP AI's
attorney's time which is reflected in CAP AI's request for fudig. The very utility tht largely
created this needless problem now asse tht CAP AI's fuding request, whatever it might be, is
excessive.
CAP AI RESPONSE TO RM OBJECTION TO INTERVENOR FUNING 13
Finaly, RM cnticizes CAP AI in setion 2 of the Objection for failing to hie an expert
witness on rate cas issues. It is more th irnic that RM cnticizes CAP AI for not hing an
expert on some of the issues it raised. Firt, CAP AI did not have the money to hi such an
expert, especially followig the money invested in Mr. Colton's thorough anysis in the 11-13
case. Second, hig an expert in ths case would have increasd CAP AI's requested costs.
RMP's cnticism, therefore, makes no sense.
Incidentaly, RM argues tht CAPAI's involvement "required the Commssion and
pares to spend tie on issues associated with the other low-income cas." It is completely
unclear how the pares to this cas were "requird" to spend tie on issues in the 11-13 case,
uness they were pares to that seate case. Again, RM makes no sen. Not only tht, but it
overlooks the increased workload and associated costs tht RM's simultaeous pendency of its
long overdue 11-13 evaluation and thee genera rate cases caused. RM also conveniently
overlooks the fact that its :flig of genera rate cases every year causes considerable time and
expense on the par of the Commssion and all pares. RM's perspective is grossly one-sided.
E. RMP's 11-13 Fig Caused Excessive Costs.
As was pointed out a year ago in the RM 2010 rate ca, RM was more than a year late
in fiing its LIW A evaluation. It apparently took a doubling by the Commssion in that case of
LIW A fuding to filly prompt RM to file its evaluation, flawed though it is. RM was
keenly aware tht not only it, but also Idao Power and A VISTA intended to fie general rate
cases in early sumer of ths yea. RM fied its application in the 11-13 case at a tie when it
was alost certin to result in an overlap between tht case, RM's rate case and the rate cases of
Idaho Power and A VISTA. The Commssion is acutely aware of the stess that ths ha caused
many paries and people.
CAP AI RESPONSE TO RM OBJECTION TO INTERVENOR FUING 14
It didn't help that it took two month for a Notice of Application to be issued in the 11-13
cas. CAP AI approached Sta last spnng and expresse concern over the problematic natue of
the 11-13 case and the domio effect it would have ifnot quickly resolved. Unforttely,
CAP AI's conce went uneeed. CAP AI's legal counel made numerous inquies as to when
the 11-13 case would be noticed and how quickly it could be resolved to avoid the tye of trafc
jam that occurd. CAP AI obviously has no power over these thgs and the worst case scenaro
occurd just as CAP AI prected it would.
In short it is RM tht ha put the Commssion, Sta and other paes thugh needess
expense from the ting to the natue of its :flings. CAP AI has done everg in its power to
avoid this from occurg.
F. CAPAI Costs Not Excessive.
Contr to RM's inerence of gr and excess on the par of CAP AI, CAP AI notes
that its legal counel and expert witness have and contiue to charge rates that are extordinarly
low for their respective aras of expertse and levels of knowledge and expenence. Attorney
Pudy charges CAP AI $130/h., less than what is believed to be the going rate for an associate
attorney fresh out oflaw schooL. Expert Teri Otens who ha many year of expertise in low-
income issues and seed as CAP AI's Executive Dirctor chages $50/h. Compare ths to the
expert hourly rates and fees chaged by other intervenors attorneys and expe.
CAP AI's representatives chage these reduced rates and fees because CAP AI must front
its costs, which not every other Intervenor clai for its constituents, and CAP AI's counel and
expert pnce their services in a way tht is mangeable for CAP AI, and just barly at that.
Because of the simultaeous pendency of five searte cases including the 11-13 proceeding in
which years of had work by CAPAI were being thatened by a misguded and highy
CAP AI RESPONSE TO RM OBJECTION TO INRVENOR FUNING 15
inaccurate evaluation, CAP AI deterined tht it could not aford to stay out all the pending
cases.
As a result of ths policy choice, CAPAI's legal counel and expert witness put aside
substatial amounts of other work and responsibilities over the course of 7-8 month to give
these case the attntion and hard work they are due. CAP AI's Sta, its attorney and its expert
spent this time often workig nights, weekends and holidays since May. Sacnfices were made in
order to do ths. CAPAI ha never sought every dollar it has spent in appearg before ths
Commssion but ha always tempere its request with a :f desire to develop and maintan
credibilty and trst with the Commssion tht its requests were more th reasnable and
reflected hard work at modest pnces. It is galling tht a utility with an obvious hostlity toward
CAP AI would call into question the commtment to excellence and crebilty shown by CAP AI.
G. RM Unfairly Singlg CAP AI Out.
CAP AI ha never objected to the fuding request of any other intervenor and makes the
following points purely to show the inequity with which RM attcks CAP AI's fudig request.
The Idao Irrgation Pumpers' Association also intervened in ths proceeing and ar seeking a
fuding award of $36,407.96, considerably more than CAPAI. CAPAI notes tht the Irgators'
fuding requests in the A VISTA and Idao Power cases also greatly exceed CAP AI's request.
The Irgators settled all the cases in late Auguearly September and did not require the
presence of their expert at hearg. In fact, most of the other intervenors did not have much
involvement in the techncal heang in ths cas. CAP AI engaged in discovery in the weeks
leading up to hearg and fuly engaged in hearg in a litigation fashion, presentig its expert
witness and cross-examg other witnesses.
CAP AI RESPONSE TO RM OBJECTION TO INTERVENOR FUNING 16
CAP AI does not question the value of the Irgators' (or any other Intervenors') work
performed, input to the Commssion, or entitlement to any parcular fudig request. CAP AI
believes that the Irrgators provide meanngf and professional input to the Commission in the
proceedigs in which they intervene. CAP AI points to the Irgators simply as a reference point
for how RM has singled out CAP AI. The message seems to be retaiatory; if an interenor
opposes settlement or cntiques and highy questonable fiing by RM, the Company will
retaiate in whatever maner it can.
CAP AI notes that because RM revers all intervenor fuding awards from its
customers, it has no parcular ficial interest in the outcome of fudig awards, especially
when they constitute such a small frtion of most any other cost recovered frm ratepayers. In
addition, Idao Power has not objecte to CAP AI's involvement in that utilty's rate case in
which CAP AI raise may simlar issues. One would be had-pressed to fid instaces in which
reguated public utilties oppose interenor fudig. Thus, the only rationa explanation as to
why RM has done so in ths cas and singled out CAPAI is hostlity, both long-stadig and
borne out of ths proceeding, the 11-13 case, and the Company's 2010 general rate cae, if not
sooner.
Though CAP AI wishes that the two paries could reach a much more amcable
relationship, RM seems determed to resist ths. CAP AI respectfuly asks the Commssion to
consider the Company's motives in opposing intervenor fudig.
H. CAP AI Represents More than One Special Contract or Large Use Customer.
As emphasized by CAP AI expert Ter Otens, the ra ofRM's low-income customers
are swelling. As evidenced by the natu of public comments recently received in not only
RM's but Idaho Power's and A VISTA customers there is a discernble population of customers
CAP AI RESPONSE TO RM OBJECTION TO INTERVENOR FUNING 17
who perceive that even durg dire ecnomic conditions, reguated utiities are effectively
immunzed and given large rate increases every year which are settled thoug a secretive
process. Whle CAP AI understads tht these perceptions do not come from detaled knowledge
of how public utilties are reguated and rates set, they do represent the voices of real people
whose lives are afected by ever-climbing utility rates. The black box setlement process, though
not unwarted in every case, adds fuel to the fie of ths public perception.
Whle CAP AI might not have taen the most popular position in ths and other pending
cases, tht is not its mandate. CAP AI believes that it represents the points of view of many
customers, low-income and non alike. CAP AI does not perceive itslf to be a formal public
advocate for PUC purses, but does believe tht the interests of the public should be
represented, or at leas arculated. Agree or not with CAP AI's positions, they represent an
increasing number of customers. Advocting for an incree in an electrc public utility's LIW A
fuding resuts in may benefits to tht Company's enti system and all of its customers.
CAP AI is not merely attempti to save money for one large-user interest. It is stving, as best
it can with its limted mean, to represent the greater good. Whether CAP AI has ben
successfu in tht effort should and certy will be arculate by the Commssion when it
issues its ruings on the pending Petitions for Intervenor Funding. For the reasons arculated
above, however, it is highy inappropnate for RM to tr to sway the Commssion's ruings.
I. Outrght Rejection of CAP AI Petition Wil Have Chiling Effect.
CAP AI always undersds tht the Commssion will consider many factors when ruling
on Petitions for Intervenor Funding and tht it might determe that what CAP AI seeks is
excessive. Wht RM is proposing in its Objection, however, parcularly under the
circumstaces of ths cae, will likely have a chilling effect on intervention by not just CAP AI
CAP AI RESPONSE TO RM OBJECTION TO INTERVENOR FUING 18
but possibly other public interest intervenors who do not have the ficial mean to intervene
before the Commssion on a reguar basis. CAP AI ha ben the most consistet public interest
advocate before ths Commssion over nearly ten year, though it has always recogned and
supported the importce and considerable value of other intervenors such as those known
collectively as the "conseration paries."
CAP AI notes the obvious: tht the Idaho Legislatu singled out intervenors with limited
:fnancial means as eligible recipients of intervenor fuding. The very fact that intervenor
fudig exists in Idao is tht it is importt tht not only those large, well-ficed customer
groups have representation before ths Commssion. CAP AI simply requests tht the
Commssion not reject its fuding position outrght as proposed by RM and consider it own its
own merits under the sttutory and rue-based criteria tht CAP AI has relied on and attempted in
every cas to saisfy.
CAP AI respectfully submits that ths would be the worst possible tie to call into
question CAP AI's parcipation in ths and every one of the other :fve pending cases it has
intervened in.
m. CONCLUSION
CAP AI does not contend that it has any "entitlement" or "assurance" to intervenor
fuding in ths or any other proceedig it paricipates in. CAP AI does respectfly submit tht
the Commission stre or completely disregard RM's untiely and highy questionable
Objection to CAP AI's Petition for Intervenor Fundig, and consider that Petition using the same
criteria it always does as set forth in the Idao Code and Commssion's Rules of Prcedure.
CAP AI RESPONSE TO RM OBJECTION TO INTERVENOR FUNING 19
t/ l P
RESPECTFULLY SUBMITTD, ths 25th day of December, 2011..~~~L3LA~ .)Brad M. Purdy ~
CAP AI RESPONSE TO RM OBJECTION TO INRVENOR FUNING 20
h l ~
CERTIICATE OF SERVICE
I, the undersigned, herby cerfy that on the 26th day of Decembe, 2011 I seed a copy
of the foregoing document on the followig by emai.
Ted Weston
Rocky Mountain Power
201 South Mai, Suite 2300
Salt Lake City, UT 84111
ted. weston(£pacificorp.com
Danel E. Solander
Rocky Mounta Power
201 South Mai, Suite 2300
Salt Lake City, UT 84111
daniel.solander(£paci:fcorp.com
Data Request Response Center
PacifiCorp
825 NE Multnomah, Suite 2000
Portland, OR 97232
datarequest(£pacificorp.com
Neil Price
Deputy Attorney General
Idaho Public Utilities Commission
472 W, Washigton (83702)
PO Box 83720
Boise, ID 83720-0074
neil.price(£puc.idaho. gOY
Randall C. Budge
Racine, Olson, Nyc, Budge & Bailey
201 E. Center
PO Box 1391
Pocatello, il 83204-1391
E-Mail: rcb(fracine1aw.net
Brubaker & Associates
16690 Swingley Ridge Rd., #140
Chesterfeld, MO 63017
bco llns(fconsultbai.com
James R. Smith
Monsanto Company
P.O. Box 816
Soda Sprigs, ID 83276
CAP AI RESPONSE TO RM OBJECTION TO INRVENOR FUING 21
.. ...\ lt
Jim.r.smithaYmonsanto.com
Eric L. Olsen
ASSOCIATION, INC: Racine, Olson, Nye, Budge & Bailey
(Exhibit Nos. 30 1-400) 201 E. Center
POBox 1391
Pocatello, il 83204-1391
elo(fracinelaw.net
Anthony Yanel
29814 Lake Road
Bay Vilage, OH 44140
tony(f,yankeL.net
Benjamin J. Otto
Idao Conservation League
710 N. 6tl St.
Boise,ID 83702
bottoaYidahoconservation.org
Ronald Wiliams
Wiliams Bradbur, P.C.
1015 W. Hays St.
. Boise, ID 83702
ron(fwilliamsbradbury.com
Don Schoenbeck
RCS, Inc.
900 Washington St., Suite 780
Vancouver, W A 98660
dws(fr-c-s- inc.com
Tim Buller
Agrium, Inc.
3010 Conda Rd.
Soda Sprigs, ID 83276
TBulleraYagrum.com
DATED, ths 25th day of December, 2011.
(~
Bra M. Purdy
CAP AI RESPONSE TO RM OBJECTION TO INRVENOR FUNING 22