20130909Response to Motion to Strike.pdf

Brad M. Purdy
Attornev at Law
2ol9 N: 17ft st.
Boise,Idaho 83702
(208) 384-129e
Cell: [phone]
Far: (208) 384-851I
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September 9,2013
Jean Jewell
Secretary, Idaho Public Utilities Commission
472 W. Washington St.
Boise,lD 83702
Re: Case PAC-E-13-04 - Commrmity Action Partnership Association of Idaho's Response to
Rocky Mountain's Motion to Stike.
Dear Ms. Jewell:
Enclosed are an original and seven (7) copies of Community Action Parhership Association of
Idalro's Response to Rocky Mountain's Motion to Strike in the above-captioned proceeding.
Given the late nature of the Motion to Strike and the scheduling of the hearing this Wednesday,
CAPAI's response will only be sent via email.
Sincerely,
Brad M. Purdy
Attorney at Law
Bar No. 3472
2019 N. 17ft St.
Boise,ID. 83702
[phone] (Land)
[phone] (Fax)
[e-mail]
Attomey for Petitioner
Community Action Partnership
Association of Idaho
IN TIIE MATTER OF THE APPLICATION )
oF PACIHCORP DBA ROCKY MOUNTAIN )
POWER TO TMTIATE DISCUSSIONS WTIH )
INTERESTED PARTIES ON ALTERNATIVE )
RATE PLAI\I PROPOSALS
CASE NO. PAC.E-13-04
COMMT]NITY ACTION PARTNER-
SHIP ASSOCIATION OF IDAHO'S
RESPONSE TO ROCKY
MOT]NTAIN'S MOTION TO
STRIKE
t2
BEFORE TIIE IDAHO PI]BLIC UTILITIES COMIVISSION
)
)
)
)
)
The Community Action Parfrrership Association of Idatro (CAPAI) offers the following
response to the Motion to Stike filed by Rocky Mountain Power on September 3,2013.
I. Introduction
It is CAPAI's understanding that although the Company neglected to properly request
expedited relief pursuant to Rule 256 of the Commission's Rules of hocedure, IDAPA
31.01.01.256, the Commission intends to hear the motion on Wednesday, September 11,2013,
well in advance of the 14 days otherwise provided CAPAI to respond to the motioru absent an
objection by CAPAI to the motion. As articulated below, CAPAI respectfully submits that the
Commission need not hear oral argument and should deny the motion prior to hearing on the
basis that it was filed too late.
CAPAI RESPONSE TO MOTION TO STRIKE
ln the event however, that the Commission, after evaluating CAPAI's objection as to the
untimely nature of the filing, still wishes to proceed to oral argumento and because Rocky
Mountain already firlly brieH its motion, CAPAI also includes in this response all of the
grounds for its objections to the motion, including those not related to timeliness.
II. ARGUMENT
CAPAI asserts that the Company's motion is completely without merit in fact or law.
Rather, it is an attempt to impugn the credibility of CAPAI's only witness to this case and to
make arguments more appropriately addressed through cross-examination at hearing. Further,
the motion is a transparent attempt to conceal from the evidentiary record certain critical facts
proving the contentions made by CAPAI that the abbreviated ratemaking procedure in this case
provides fertile ground for gamesmanship.
A. Motion is Untimely
As stated, the motion was filed on September 3,2013. It was not served on CAPAI by
email until the end of the business day and CAPAI was not even aware it had been filed until
September 4,2013. Rocky Mountain does not cite a single Commission procedural rule, any
Idatro Court Rules, or any legal doctrine in support of its motion. Furtlrermore, Rocky Mountain
fails to specifically seek expedited teaunent of its motion and to provide the necessary
information supporting such a request pursuant to Rule 256(2)(a).
Regardless, Rule 256 of the Commission's procedural rules contains a very detailed
explanation of the procedure by which motions are to be handled. Rule 256Q) states that a
motion requesting substantive relief on fewer than fourteen (14) days notice will not be acted
upon on fewer than fourteen (1a) days notice unless it states a) the facts supporting its request to
act on shorter notice; and b) that all parties have been properly notified of the motion. Subpart 3
CAPAI RESPONSE TO MOTION TO STRIKE
of Rule 256 states that motions seeking procedural relief must satisff the requirements regarding
substantive motions (1) facts supporting the request and 2) proper notice is made to the parties).
Finally, subpart 4 of Rule 256 states the normal procedure providing parties responding to a
motion fourteen (14) days to respond to the motion.
1. Rocky Mountain's motion was filed late in the day only 8 days priorto hearing.
The motion seeks to stike critical and substantial portions of the testimony of CAPAI's only
witness to this proceeding, Ms. ChristinaZamor4 based either on unstated grounds, or on
grounds that are substantive in nature. Thuso the motion is primarily substantive in nature and,
technically, pursuant to Rule 256(4), CAPAI should be grven until September 17,2013, fourteen
days from the date of filing, to respond. The only reason that CAPAI files this response now is
because it was informed by Stafflegal counsel that the Commission intends or "anticipates"
hearing oral argument on Rocky Mountain's motion on Wednesday, prior to the expiration of the
14 day response period. Just the same, CAPAI does not waive its right to a full fourteen day
response period.
2. Rocky Mountain also failed to specifically seek expedited relief on substantive
and procedural issues in its own motion leaving it to CAPAI to point out the untimely nature of
the motion. As stated in Rule 256{a), the Company was required to state the "facts supporting its
request to act on shorter notice." Rocky Mountain doesn't even specifically request shorter
notice. All that Rocky Mountain seeks in the prayer for relief at the conclusion of its Motion to
Strike is: "[t]hat the Commission (l) 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." Mtn. at p. 4.
CAPAI RESPONSE TO MOTION TO STRIKE
Much of the Motion to Stike is based on the fact that CAPAI took the reasonable step of
withdrawing its Motion to Compel in this case after the Company had filed its response to a
discovery request made approximately four months earlier. Without this withdrawal, the
majority of the grounds for Rocky Mountain's motion, stated or unstated, would not exist.
Regarding the withdrawal of its Motion to Compel, CAPAI did not believe that Rocky
Mountain's discovery response was complete nor made in good faitlu but did not wish to hold the
technical hearing up so withdrew its Motion to Compel on August 14,2013, more than two
weeks prior to Rocky Mountain's Motion to Strike was filed The Motion to Strike is an
opportunistic and unlawful tactic and was made long after it should have been filed and fartoo
late to be considered prior to hearing. The Company of;lers no explanation for this needless and
costly delay and the consequences of that delay should fall squarely on the shoulders of Rocky
Mountain, not CAPAI.
B. CAPN's \ilithdrawal of Motion to Compel was Conditional
Although it certainly did not anticipate the Company's exploitation of its willingness to
withdraw its Motion to Compel, to free up the Commissioners' schedules, and to allow the
hearing to proceed as scheduled, CAPAI withdrew its Motion to Compel, but did so with
conditions and qualifications so that the record could not be altered as the Company is
attempting to now do. CAPAI's withdrawal states:
Although it is CAPAI's position that Rocky Mountain's response
indicates a lack of comprehension of the information sought and contains
statements that are eroneous or confirsing, CAPAI accepts the response
for the purpose of its pending Motion to Compel and, consequently,
withdraws that Motion.
Though the Motion to Compel is deemed withdrawn, CAPAI waives
no riehts associated with the discovery dispute in general, including
whether there might be financial consequences to Rocky Mountain based
on its refusal to timely respond to the discovery in good faith.
CAPAI RESPONSE TO MOTION TO STRIKE
Emphasis Added.
Again, although there was no way that CAPAI could have known ttrat Rocky Mountain
would use CAPAI's reasonable withdrawal against it, CAPAI's unease with the Company's prior
tactics caused it to incorporate conditional and general language regarding the non-waiver of its
rights.
C. No Stated Legal Basis for Motion
The Company puts forth five somewhat redundant areas of argument as to why
substantial portions of Ms. Zamora's testimony and information contained in pleadings including
the briefs and affidavits supporting CAPAI's Motion to Compel should be stricken from the
record. Those five areas include: l) ttut Ms. Zamora admits she isn't an attomey and that "it is
difficult" for Rocky Mountain to understand the point of Ms. Zamora's testimony; 2)that
CAPAI's financial limitations as described by Ms. Zamoraare irrelevant to this case and that it is
cheaper and in CAPAI's best interests to employ an abbreviated and still undetermined
ratemaking technique; 3) that low-income "studies" performed by Avista and referred to by Ms.
Z,amorado "not obligate Rocky Mountain to perform such studies; 4) Again, that Ms. Z,amoru
admits she has limited or no legal knowledge or expertise yet her testimony "relies heavily on a
legal brief'that was incorporated by reference in Ms. Z,anoru's testimony to provide the
Commission with greater context in this proceeding, ondl 5) because Ms. Zamora's testimony
should largely be stricken from the recor{ so too should the exhibit attached to her testimony
that contains CAPAI's brief in support of its Motion to Compel.
CAPAI will address each of these five areas offered in support of Rocky Mountain's
motion in the order they were presented.
CAPAI RESPONSE TO MOTION TO STRIKE
l. Rocky Mountain complains that'it is difficult" to understand the purpose of Ms.
Zamora's testimony and that she apparently offers "legal opinions for which [she] has no
expertise." Mtn., p. 2.
Rocky Mountain's first point is itself difficult to understand. If the Company cannot
understand the "purpose" of Ms. Zamora's testimony then its attomey can simply ask her to
explain it during cnoss-examination. Were a witness's testimony stricken every time one party to
a case didn't "understand the point" ofthat testimony, the Commission would rarely hear any
testimony. Regarding Ms. Zamora's disclaimer of legal expertise, this is an very common
statement for non-attomey witnesses to ensure that there is no doubt that they do not purport to
possess the general knowledge of lawyers. Rocky Mountain failed to point to a single specific
word of Ms. Zamora's testimony that should be stricken based on this ground making it
impossible, not difficult, to respond to. Rather, the Company cites to large swaths of testimony,
much of which isn't even relevant to Rocky Mountain's objections. Regardless, Ms. Zamora
simply offers her understanding of the Commission's legal process but does not claim to be an
attorney. If Rocky Mountain's legal counsel wishes to explore that fact, then that person is free
to do so during cross-examination.
Again, the Company's motion seems to be an opportunistic act designed to keep critical
evidence from the record including the Company's numerous promises to provide CAPAI with
information critical to a determination of whether to join the settlemen! only to be followed by a
retaction of those promises followed by more promises and more retractions. The Company
would, presumably, also like to keep from the record the heavy-handed tactic by which it refused
to respond discovery unless and until CAPAI ageed to sign the settlement stipulation first,
CAPAI RESPONSE TO MOTION TO STRIKE
before even seeing the discovery response, and thereby force CAPAI to waive its rights to
challenge all or a portion of the settlement.
2. Rocky Mountain's claims that Ms. Zarnora's testimony regarding CAPAI's
financial limitations should be suicken because the procedure adopted by the other parties to this
case is cheaperl is argumentative and simply begs the point. It is Ms. Zamora's clear position
that the procedure employed did not result in less costs to CAPAI. Furthermore, the Company's
rebuttal witness, Mr. Ted Weston, discusses this point at length in his testimony and that is
where it should be made, not in a prehearing motion. Allowing Mr. Weston's testimony while
striking Ms. Zamora's would be patently discriminatory.
Ms. Zamora's testimony regarding CAPAI's limited financial meilrs is very relevant to
and lies at the heart of CAPAI's objection to the procedure adopted in this case whictr, by the
way, is the primary "point" of her testimony that Rocky Mountain claims to not understand. Ms.
Zarnoratestifies that the discovery dispute alone in this case cost CAPAI more money than it can
afford to squander and that the settlement process has been very costly. This is a direct rebuttal
to the Company's claims, by way of the testimony of Mr. Weston among other means, that the
procedure adopted is cheaper. As with the other grounds for its motion, Rocky Mountain fails to
demonstrate that Ms. Z-amora's testimony is somehow unfair to the Company or prevents them
from attempting to challenge it through cross-examination.
CAPAI respectfully submits that when a disputed issue can be scrutinized through cross-
examination, then this is a far preferable method than blindly striking chunks of a witness's
testimony whictr, in turn, can then place other remaining testimony out of context.
3. Rocky Mountain's objection to Ms. Zamora's discussion of the fact that Avista
willingly and with useful end result "has no bearing" on this case misses the point of Ms.
I Mtn at p. 2.
CAPAI RESPONSE TO MOTION TO STRIKE
Zamora's discussion of the Avista discovery process which is to demonstrate that the information
sought was readily available to the utility, and provided useful information to all concemed. The
Avista rate case was processed under normal general rate case procedure. This case, as Ms.
Z,amorunotes, resulted in very different results including a lenglhy and costly battle to obtain
legitimate information from Rocky Mountain. The promises made during settlement of good
faith cooperation with respect to providing CAPAI the information it stated it desired to
determine the impact of altemative rate designs and a determination of whether the existing rate
design was fair to low-income customers evaporated once the Company obtained the party
signahres it felt it needed on the settlement stipulation.
Rocky Mountain's motion contradicts itself by simply rearguing the issues contained in
the Motion to Compel contending that the Company is not obligated to provide information to
CAPAI that it ultimately provided. CAPAI has pointed out in the testimony of Ms. Zamorathat
a better understanding of the impact that alternative residential rate designs has on low-income
customers is critical to making good the ratemaking decision process, with the end result being
consideration of all ratepayers. That was the primary point of Ms. Zamora's referral to the
information willingly provided by Avista but stubbornly by Rocky Mountain.
4. This section of the motion repeats arguments already made regarding Ms.
Zamora's lack of legal expertise and experience with Commission legal procedure and her
reference to CAPAI's Motion to Compel. As noted earlier, it is Rocky Mountain that reargues
the issues presented in the Motion to Compel in its Motion to Strike. Not only that, but
Company witress Mr. Ted Weston and Staffwitness Mr. Randy Lobb also discuss the merits of
the Motion to Compel in their rebuttal testimonies. Thus, the Company has placed the matter
back on the table for discussion.
CAPAI RESPONSE TO MOTION TO STRIKE
It is not CAPAI's intent, nor the point of Ms. Zamora's testimony, to argue a motion that
is no longer live. What the Company fails to acknowledge is that the briefs and affidavits
supporting CAPAI's Motion to Compel contain facts that are relevant to the issues that remain in
this case, specificalln the negative consequences and effects of a ratemaking procedure thatis ad
hoc and,the rules of which seem to change as the case progresses. Certainly, the Company's
position on CAPAI's discovery changed and that is at the core of the Motion to Compel and
supporting pleadings. As already noted, that is the point of Ms. 7-ariora's mention of the
discovery dispute; that it resulted in as much or more time and expense to CAPAI than a formal
general rate case procedure would have. The parties have presented their ratemaking
"alternatives" to the Commission not by way of description" bluepring or even an explanation,
but simply by way of a negotiated general rate increase settlement agreement. It is the Company
that touts the virtues of this process while CAPAI points out its many shortcomings. This is the
primary issue being presented to the Commission from CAPAI's perspective.
Regarding any interpretation of Ms. Zamora's testimony that characterizes it as a legal
opinion, she has fully conceded that she is not a lawyer and is relatively new to PUC
proceedings. This is her first time testiffing before the Commission and CAPAI is merely being
candid about that fact. This does not, however, render Ms. Zamora's assessment of the
fundamental fairness and efficacy, or lack thereof, of the process employed in this case compared
to her understanding of the legal process employed under formal general rate case statutes and
administrative rules. The Commission is more than capable of recognizing the extent of Ms.
Zamora's assessment of legal procedure and giving it the weight it deems it is entitled to.
Striking the entirety of Ms. Zamords testimony, however, is overkill. Much of what the
pleadings supporting CAPAI's Motion to Compel discuss and prove are Rocky Mountain's
9CAPAI RESPONSE TO MOTION TO STRIKE
gamesmanship when it came to negotiations with CAPAI and the process of first agreeing to
promptly and informally responding to CAPAI's discovery, then taking a significant step back
and conditioning any response on CAPAI's execution ofthe settlement stipulation, then renewing
its promise to respond to the discovery, and back and forth. It is CAPAI's contention that this
behavior would not have been as likely to occur under a formal rate case process.
Even Staffhas taken advantage of the informal process in this case through the rebuttal
testimony of Mr. Randy Lobb who argues that CAPAI did not properly propound its discovery
(an argument that Rocky Mountain did not make or join in wittr) or timely file its motion to
compel. Although the discovery had nothing to do with Staffwho lacks standing to even
challenge it on such grounds, the fact is that the information Rocky Mountain seeks to stike
from the record demonsfrates the haphazard nature of the discovery process and the fact that the
Company misled CAPAI into believing a promise that the Company never intended to keep, then
offered to respond to the requested discovery only if CAPAI first waived all of its rights to
oppose the settlement and actually sigl the stipulation. Even then, Rocky Mountain only offered
to conduct a vague "workshop" to consider the discovery request. It is CAPAI's position that this
type of behavior would not likely have occurred under a general rate case procedure and that is
why proof of the discovery process remains relevant to whether the adopted, expedited procedwe
is a fair,just and reasonable basis for setting rates.
5. This basis for the Motion to Stike is redundant to several others and CAPAI
incorporates responses already made. It is one thing to consider the Motion to Compel
withdrawn from the record, but the grounds for that motion remain at the heart of CAPAI's
overall objection to the procedure adopted in this case as already explained. The pleadings
supporting the Motion to Compel contain factrnl allegations, and proof of those allegations, that
CAPAI RESPONSE TO MOTION TO STRIKE 10
are still relevant and should not be stricken from the record. Inthe alternative, CAPAI could be
allowed to cross-examine Mr. Weston using as exhibits the emails and other documents proving
many of Ms. Zamora's contentions regarding the higher price that the alternative procedure has
carried for CAPAI. Once again, the purpose of maintaining this information in the evidentiary
record is to demonstate the consequences of the alternative procedure employed, not to reargue
the Motion to Compel discovery responses.
CAPAI submits that the Company is attempting to surgically separate each portion of Ms.
Zamora's testimony and then attack it out of context to the whole. Ms. Zamora's testimony
brings numerous aspects of the procedure adopted in this case to the Commission's attention in
order for the Commission to determine whether any purported benefits really exist and even if
they do, whether they offset the costs. Thus, Ms. Zamora's testimony regarding the loose nature
ofthis case's procedure, the fact that it led to inappropriate behavior in ke,eping critical
information from CAPAI until several days priorto the prefile deadline, the fact that this cost
CAPAI money it could not afford to spend the fact that the process was exclusionary and gave
preference to certain parties but not others, must all be viewed in their entirety for the
Commission to have a sense of whether a procedure that might have precedential effect is
desirable or ill-advised. Striking Ms. Zamora's testimony as suggested by Rocky Mountain will
keep an already opaque process in the dark rather than viewed by the Commission and ratepayers
in the light of day.
III. ST]IVIMARY
The Company's Motion to Strike should be rejected as untimely on the grounds that l)
the basis for the motion, the withdrawal of CAPAI's Motion to Compel, occurred more than two
weeks earlier, and; 2) the Company's motion was filed roughly a week prior to hearing, depriving
llCAPAI RESPONSE TO MOTION TO STRIKE
CAPAI of the 14 day response time all parties are entitled to and too late to be acted upon other
than through extraordinary expedited fashiorl a request the Company never even made and the
requirements of which it did not even satisfr. The Company has simply not satisfied the
required showing of facts and circumstances that justi8, such a needlessly late-filed motion that,
if granted, would have severe corxiequences for CAPAI.
Rocky Mountain's motion is discriminatory in ttrat the testimony of Ms. Zamorusought
to be stricken from the record is the subject matter of a portion of Company witness Weston's
testimony. While Ms. Zamora's testimony might not be popular with the Company, she has
adequately stated a case for why the unprecedented and extremely informal procedure adopted in
this case is unfair to CAPAI and the interests of the low-income customers it represents and
should not be accepted by the Q6mmission.
Finally, though Rocky Mountain places much emphasis on its inability to understand Ms.
Zamora's testimony, it is the Company's Motion to Strike ttrat is obtuse. Rather than a statement
of applicable legal standards followed by application of those standards to the facts extant in this
caseo the motion engages in a narrative but vague criticism of what seems to represent more
frustration than factual and legal substance. For each of the bases listed by the Company in
support of the motion, there is little to no analysis of how any particular statement by Ms.
Zarroraviolates any principle of law. Rather, at the end of each section of the brief, there is a
large chunk of her testimony cited and that the Company summarily dismisses as somehow being
inadmissible under legal standards not even stated.
The motion" therefore, is more argumentative in nature and the Company's objections
would be better suited to cross-examination during hearing than the far more drastic act of
cutting out large swaths of the testimony of CAPAI's only witness. This latter tecbnique has a
CAPAI RESPONSE TO MOTION TO STRIKE t2
tendency to intemrpt the flow of testimony and put qrhat remains of that testimony out of
context. The Commission is not a jury of lalpersons and is exhemely competent at giving aU
evidence submitted duing hearingthe weight it deserves and assigning the probative value that
the Commission deems in its experience and expertise to be appropriate.
Based on the foregoing CAPAI respectfrrlly submits that Rocky Mountain's Motion to
Stike be denied in its entirety.
DATED, this 9th day of September, 2013.
CAPAI RESPONSE TO MOTION TO STRIKE l3
CERTIFICATE OF SERVICE
I, the undersigne4 hereby certift that on the 9th day of September, 2013,I served a copy
of the foregoing doctrment on the following by electronic mail.
Ted Weston
Rocky Mountain Power
201 South Main, Suite 2300
Salt Lake City, UT 8411I
ted. weston@pacifi corp.com
Daniel E. Solander
Rocky Mountain Power
201 South Main, Suite 2300
salt Lake city, uT 841I I
dani e l. so I ander@paci fi corp. com
Electronic Senice Onlv:
Data Request Response Center
PacifiCorp
datareq uest@f aci fi corp.com
Neil Price
Deputy Attorney General
Idatro Public Utilities Commission
472 W, Washington (837 02)
P0 Box 83720
Boise, lD 83720-0074
neil.price@puc. idaho. gov
Randall C. Budge
Racine, Olson, Nyc, Budge & Bailey
201E. Center
P0 Box l39l
Pocatello, ID 83204-1391
E-Mail: [e-mail]
Brubaker & Associates
16690 Swingley Ridge Rd., #140
Chesterfield, MO 63017
bcol I ins@consu ltbai.com
James R. Smittr
Monsanto Company
P.O. Box 816
Soda Springs,ID 83276
Jim.r. [e-mail]
CAPAI RESPONSE TO MOTION TO STRIKE t4
Eric L. Olsen
ASSOCIATION, INC: Racine, Olson, Nye, Budge & Bailey
(ExhibitNos.30 1400) 201E. Center
P0 Box 1391
Pocatello, ID 83204- 139 I
elo(@racinelaw.net
Anthony Yankel
29814 Lake Road
Bay Village, OH 44140
tonv@..vankel.net
Benjamin J. Otto
Idaho Conservation League
710 N. 6s St.
Boise,ID 83702
botto @ idahoconservation. org
Ronald Williams
Williams Bradbury, P.C.
1015 W. Hays St.
Boise, ID 83702
ron@wil liamsbradbury.com
Don Schoenbeck
RCS,Inc.
900 Washington St., Suite 780
Vancouver, WA 98660
[e-mail]
Tim Buller
Agrium, [nc.
3010 Conda Rd.
Soda Springs,lD 83276
[e-mail]
Ken Miller
Snake RiverAlliance
Box 1731
Boise,ID 83701
E-Mail : kmiller@,snalteriveralliance.org
CAPAI RESPONSE TO MOTION TO STRIKE 15