20130930Response to PAC Opposition.pdf

r
Brad M. Purdy
Attorney at Law
BarNo.3472
2019 N. 17n St.
Boise,ID. 83702
[phone]
FAX: [phone]
[e-mail]
Attomey for Intervenor
Community Action Partnership
Association of Idaho
IN THE MATTER OF THE APPLICATION
OX'PACIFICORP DBA ROCKY MOT]NTAIN
POWER TO INITIATE DISCUSSIONS WITH
INTERESTED PARTIES ON ALTERNATTYE
RATE PLAIT PROPOSALS
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
CASE NO. PAC.E.13-04
COMMT]NITY ACTION
PARTNERSHIP ASSOCIATION
OF IDAHO'S RESPONSE TO
ROCKY MOUNTAIN'S
OPPOSITION TO PETITION FOR
INTERVENOR FT]NDING
I. INTRODUCTION
COMES NOW, the Community Action Partnership Association of Idaho (CAPAI) and,
pursuant to Rocky Mountain Power's Opposition to CAPAI's Request for Intervenor Funding
filed with the Commission on Friday, September 27,2013, replies as follows.
II. ARGUMENT
1. Roclqy Mountain Opposition Vague and Not Supported by Procedural Rules.
A. Section 1.
The Company begins its opposition to CAPAI's funding petition with an illegitimate
supposition:
Based on the petition and the attached "Itemized Expenses" it is not
clear to Rocky Mountain Power what portion of this request is related to
CAPAI's participation in settlement discussions, preparation of its
CAPAI REPLY TO RMP OPPOSITION TO INTERVENOR FUNDING
witness testimony, and preparation for the hearing, and what portion is
related to the Motion to Compel filed by CAPAI.
Opposition, p. 1.
Though Rocky Mountain refers in section 2 to "Rule 162," it offers no legal basis for the
objection quoted above and merely presumes that CAPAI was required to make it "clear" to the
Company precisely what portion of the requested funding was applicable to certain unilaterally
selected tasks (e.g., briefs in support of motions) identified by Rocky Mountain in an after-the-
fact fashion. There is not now, nor has there been for at least 25 yeas, any requirement that a
party seeking intervenor funding break out its frrnding request into specific tasks created and
identified after the fact by the public utility involved. Were a utility allowed to arbitrarily
manufacture such requirements in this manner, intervenor funding would be rendered
unobtainable. Section I is nonsensical and is an objection with no stated legal support or logical
rationale.
B. Section 2.
Rocky Mountain begins by characterizing CAPAI's funding petition as containing a "lack
of transparency," apparently referring back to the non-existent requirements unilaterally imposed
by the Company in Section 1.
The Company then argues that because of this alleged lack of transparency:
[t]he Commission should require CAPAI to comply with Rule 162 and
provide a detailed accountinq regarding the number of hours that were
spent on the Motion to Compel and Brief in Support filed by CAPAI and
CAPAI's premature and disingenuous Reply to Response to Motion to
Compel filed by Rocky Mountain Power, and disallow all costs
associated with those pleadings.
Opposition, p. 2 [Emphasis addedJ.
CAPAI REPLY TO RMP OPPOSITION TO INTERVENOR FUNDING
Criticizing the Petition for Intervenor Funding as a "brief" Rocky Mountain further proposes
that the costs of preparing the frrnding petition itself be denied. /d Rocky Mountain also seeks
to deny funding for CAPAI's Reply to Rocky Mountain's Response to the Motion to Compel
labeling the Reply as "premature and disingenuous.".Id.
Rule 162 of the Commission's Rules of Procedure, IDAPA 31.01.01.162, outlines the
expense itemization required in a fi.rnding petition. Subsection (01) states that the petition must
contain "an itemized list of expenses that the intervenor requests to recover broken down into
categories such as legal fees, witness fees, or reproduction fees" and that "[]egal and witness
fees shall, where applicable, indicate hourly rates." Rocky Mountain's demand for a "detailed
accounting," therefore, has no basis in Rule 162 as suggested by the Company.
CAPAI's funding petition provided all of the itemized expenses required using the precise
verbiage found in Rule 162(01). In fact, the expense itemization provided by CAPAI in this case
is identical in format, scope and substance to literally every funding petition CAPAI has filed in
the past decade, beginning with its first formal intervention and participation as a party before
this Commission in Idaho Power's 2003 general rate case.l Throughout that decade, no party, nor
the Commission itself, has ever challenged or even questioned any aspect of the expense
itemization employed by CAPAI, until now. Rocky Mountain is effectively rewriting Rule 162
in a manner that exclusively targets and is discriminatory to CAPAI and would lead to bad
precedent.
There are also serious practical problems with Rocky Mountain's proposal. As set forth
in the Third Affidavit of Brad M. Purdy, CAPAI's legal counsel keeps relatively detailed
timesheets of the work he performs for CAPAI but, with respect to work performed on a given
day for a given client, it is simply not possible to segregate tasks performed into sub-categories.
I Case No. IPC-E-03-13
CAPAI REPLY TO RMP OPPOSITION TO INTERVENOR FUNDING
For example, a telephone call, email, or even legal research might relate to several disparate
tasks that legal counsel is simultaneously undertaking. There is no way to subjectively allocate
every task into a specific category, especially when that category is created at the utility's whims
long after the timesheets have been completed. The Company is suggesting a degree of billing
precision that is impractical and certainly not commonly performed in the legal profession
Though certain parties in relatively recent years have voluntarily chosen to include what
appears to be their actual timesheets billed to their clients in a particular PUC proceeding, this is
not the result of any rule or specific Commission requirement. CAPAI asserts that providing
actual timesheets sent by an attorney to his or her client comes dangerously close to a violation
of attorney-client confidentiality. This is because, especially in a contested proceeding, such
timesheets are quite likely to reveal litigation strategy and other highly sensitive and confidential
information. CAPAI is not questioning the decisions or practices made or engaged in by other
intervenors, but states that CAPAI chooses not to waive its attorney-client confidentiality.
Regarding Rocky Mountain's contention that CAPAI's Reply brief to the Company's
Response to the Motion to Compel was "premature and disingenuous,"2 CAPAI notes that up to
that point in time, the Company insisted on stating its refusals to respond to CAPAI's discovery
in emails and Word documents attached thereto. Despite Rocky Mountain's ultimate admissions
to the contrary3 it seemed apparent to CAPAI that the Company would continue to stubbomly
refuse to file a proper response to CAPAI's Motion to Compel dragging out the dispute through
back and forth emails containing Rocky Mountain's proposals and reneging of those proposals.
Given the fact that precious little time remained prior to hearing, and because CAPAI intended to
set the matter for oral argument in just days CAPAI filed, on August 6,2013, its Reply to Rocky
2 Opposition at p. 2.
3 See, RoclE Mountain Response to Motion to Compel, p. 3.
CAPAI REPLY TO RMP OPPOSITION TO INTERVENOR FUNDING
Mountain's emailAVord document position. Rocky Mountain finally took CAPAI's Motion to
Compel seriously and filed a Response on August 9,2013. Because CAPAI had already replied
to what it knew would be Rocky Mountain's response position, CAPAI avoided "unnecessary
waste" and stood on the merits of its August 6,2013 Reply which it had a right to file. The
timing was the result of Rocky Mountain's strategic tactics. Thus, the Reply brief was not
"premature and disingenuous. "
Regarding the Company's positionthat expenses incurred in preparing CAPAI's funding
petition should be denied, the Third Affidavit of Brad M. Purdy filed contemporaneously
herewith states that all work performed in preparing the brief was never billed to CAPAI and is
not included in the final expenses sought by CAPAI's funding petition. [n fact, CAPAI rarely, if
ever, seeks recovery of expenses incurred to prepare funding petitions filed in any proceeding.
This is why there is no mention of the work performed in seeking intervenor funding in CAPAI's
petition.
C. Section 3.
The Company states: "[a]s described in Rocky Mountain Power's Response to CAPAI's
Motion to Compel...Rocky Mountain Power fully and properly responded to CAPAI's data
requests in a timely fashion." Opposition at p. 2. The Company further argues that CAPAI's
contention that the Company failed to fully respond to discovery "is disingenuous and ignores
the Commission Rules and Idaho Rules of Civil Procedure." Regarding CAPAI's Motion to
Compel, the Company concludes Section 3 with the contention that "CAPAI's Motion to
Compel, its Brief in Support, and its Reply were all unnecessary, a waste of party and
Commission resources, and should not be supported by intervenor funding. Opposition, pp. 2-3.
CAPAI REPLY TO RMP OPPOSITION TO INTERVENOR FUNDING
Thus, despite its own Motion to Strike CAPAI's pleadings related to the Motion to
Compel, Rocky Mountain has voluntarily and fully placed those pleadings, and the facts
involved in the discovery dispute, back on the table. Rocky Mountain cannot strike CAPAI's
discovery-related pleadings yet continue to quote and reargue its own discovery-related briefing.
The Company's tactics have placed CAPAI in the position of having to either assume that the
Commission will not be influenced by Rocky Mountain's re-argument of the discovery dispute
pleadings as misconstrued by the Company, or recreate the pleadings stricken by the
Commission in order to fairly respond to Rocky Mountain's re-arguments. The Company cannot
have it both ways. This factual dispute remains relevant only because Rocky Mountain now
seeks to reargue a stricken set of pleadings and deny CAPAI intervenor funding for any expenses
related to its Motion to Compel on the basis that those expenses constifute an "unnecessary
waste." Opposition, pp. 2-3.
Rocky Mountain has still not relinquished its dogged and bewildering insistence that it
never refused to fully respond to CAPAI's discovery requests. This fact is contradicted by
Rocky Mountain's Response to CAPAI's Motion to Compel. See, Response Brief at p. 3.
In truth, CAPAI's Motion to Compel was not a waste at all, as evidenced by Rocky
Mountain's capitulation, just days prior to oral argument on the motion, when it provided a
response to discovery request 6(b). Thus, had CAPAI not filed its Motion to Compel, Rocky
Monntain would not have provided the information that CAPAI is now making use of to analyze
the Company's existing rate design and whether it is fair, just and reasonable to Rocky
Mountain's low-income customers. Thus, the Motion to Compel was successful, not wasteful.
CAPAI REPLY TO RMP OPPOSITION TO INTERVENOR FUNDING
Like CAPAI, the Company must live with its actions and cannot claim that CAPAI is not
entitled to recover expenses related to the Motion to Compel when that motion led to the very
data in dispute.
Section 4.
The Company concludes its brief in opposition with the requested relief as follows:
Accordingly, Rocky Mountain Power requests that the Commission
deny CAPAI's request for intervenor funding in the case for costs
associated with the Motion to Compel and associated pleadings. Rocky
Mountain Power takes no position on the remainder of CAPAI's request
for intervenor frrnding.
Opposition at p. 3.
Rocky Mountain's requested relief again creates the problem inherent in a vague and
sweeping opposition to a funding request based on unilateral and misinterpreted interpretations
of the Commission's procedural rules and requirements manufactured by the utility at the end of
the case. CAPAI fully complied with the Commission's procedural rules regarding intervenor
frrnding as it has for the past ten years. Any argument by Rocky Mountain that actual timesheets
must be provided violates the attorney-client privilege and is not practical as described above.
ilI. CONCLUSION
CAPAI respectfully submits that its Petition for Intervenor Funding fully complies with
the Commission's applicable Rules of Procedure. Rocky Mountain's arguments that CAPAI's
Motion to Compel and supporting pleadings should not be recovered through intervenor funding
should be entirely rejected because the Motion to Compel was successful and was withdrawn
only as a good faith measure by CAPAI and because it successfully motivated Rocky Mountain
to fully respond to discovery. The Company exploited CAPAI's good faith with its Motion to
Strike which it now wishes to ignore by rearguing the very pleadings stricken.
CAPAI REPLY TO RMP OPPOSITION TO INTERVENOR FUNDING
The expenses related to CAPAI's Petition for Intervenor Funding are not included in the
funding petition and, therefore, not capable of being rejected. CAPAI had a legal right to file its
Reply to Rocky Mountain's Response brief and it is part of the Motion to Compel that proved
successful.
CAPAI respectfully submits that the Commission reject all of Rocky Mountain's
arguments and requests and make a determination on the merits of CAPAI's funding petition as it
stands.
RESPECTFULLY SUBMITTED, this 30th day of September,20l3.
CAPAI REPLY TO RMP OPPOSITION TO INTERVENOR FUNDING
CERTIFICATE OF SERYICE
I, the trndersigned, hereby certiff that on the 30th day of September, 2013, served a copy
of the foregoing document on the following by electronic mail and/or U.S. mail, first class
postage.
Ted Weston
Rocky Mountain Power
201 South Main, Suite 2300
Salt Lake City, UT 84111
Daniel E. Solander
Rocky Mountain Power
201 South Main, Suite 2300
Salt Lake City, UT 84111
Randall C. Budge
Racine, Olson, Nyc, Budge & Bailey
201E. Center
P0 Box 1391
Pocatello, lD 83204-1391
James R. Smith
Monsanto Company
P.O. Box 816
Soda Springs, ID 83276
Benjamin J. Otto
Idaho Conservation League
710 N. 6tr St.
Boise,lD 83702
Ronald Williams
Williams Bradbury, P.C.
l0l5 W. Hays St.
Boise,lD 83702
Ken Miller
Snake River Alliance
Box 1731
Boise,ID 83701
Eric L. Olsen
Racine, Olson, Nye, Budge & Bailey
201E. Center
P0 Box 1391
Pocatello, ID 83204-1 391
CAPAI REPLY TO RMP OPPOSITION TO INTERVENOR FUNDING