20150625Opposition to Motion to Strike.pdf

Benjamin J. Otto (ID Bar # 8292)'
710 N 6'h Street
Boise,ID 83701 ii: '' -''l:l?: F'il i2: !5
Ph: [phone] xt2
Far [phone] , ', ,: , , .:ir ,:,:: ',
[e-mail]
Matt Vespa (CA Bar #222265)
Sierra Club
85 Second St., 2nd Floor
San Francisco, CA 94105
Ph: (als) 977-s7s3
Fax [phone]
[e-mail]
Attorneys for the Idaho Conservation League and Sierra Club
BEFORE THE IDAHO PUBTIC UTILITIES COMMISSION
IN THE MATTER OF IDAHO POWER
COMPANY'S PETITION TO MODIFY
TERMS AND CONDITIONS OF PURPA
PURCHASE AGREEMENTS
CASE NO. IPC-E-Is-OI
IN THE MATTER OF AVISTA
CORPORATION'S PETITION TO
MODIFY TERMS AND CONDITIONS OF
PURPA PURCHASE AGREEMENTS
IN THE MATTER OF ROCKY
MOUNTAIN POWER COMPANY'S
PETITION TO MODIFY TERMS AND
CONDITIONS OF PURPA PURCHASE
AGREEMENTS
CASE NO.AVU-E-1s-01
CASE NO. PAC-E-I5-03
IDAHO CONSERVATION TEAGUE AND
SIERRA CIUB
OPPOSITION TO STAFF AND IDAHO
POWER MOTION TO STRIKE
The Idaho Conservation League (ICL) and Sierra Club oppose the Staffand Idaho Power
Motions to Strike the testimony of Adam Wenner. Mr. Wenner is an expert witness with almost
40 years of experience and specialized knowledge of the Public Utilities Regulatory Policy Act
(PURPA) and the federal regulations promulgated by the Federal Energy Regulatory Commission
IPC-E- 1 5-01, AVU-E-1 5-01, PAC-E-l 5-03
ICL and Sierra Club Opposition to Staff and Idaho Power Motions to Strike
(FERC).I ICL and Sierra Club filed Mr. Wenner's direct testimony on April 23,2015, and rebuttal
testimony on May 14,2015 as required by the Scheduling Order No 33253, so admitting it will
not prejudice or surprise any party. The Commission, sitting as fact finder, is well suited to
consider whether the expert opinion testimony of Mr. Wenner, and several other witnesses who
offer the same t]?e of testimony, will assist their decision-mukirg. Idaho R. Evid. 702 and704.
"The public utility commission is a fact-finding, administrative agency and as such is not bound
by the strict rules of evidence governing courts of law." Application of Citizens Utilities Co.,82
Idaho 208,213,35I P.2d 487, 489 ( 1960); Idaho Code S 61-601. To exclude Mr. Wenner's
testimony, but not the testimony of other witnesses who also describe and opine on the law
would be an abuse of discretion. Rather, the Commission has substantial discretion to admit all
relevant evidence to ensure a complete record and substantial discretion to give such evidence the
weight it deserves. For these reasons, fully explained below, the Commission should deny the
Staffand Idaho Power Motions.
ARGUMENT
I. Mn WnNNER's DInncr TnsrtrraoNv Is ADMTSsTBLE ExpERT OprNroN THer cAN Assrsr rHE
Couvrrssrolr's DncrsroN MercNrc.
The outlines of PURPA and the FERC regulations, and whether the utility proposals on
contact length and pricing methodologies conform, is relevant to this case, as evidenced by the
direct testimony of Mr. Sterling2, the direct testimony of Mr. Clements3, the direct testimony of
Mr. Dickmann, and the direct testimony of Mr. Yankles, among others.6 Mr. Wenner's expert
opinion on how the facts here relate to the law is admissible evidence in this proceeding. The
Idaho Rules of Evidence are generally permissive: "all relevant evidence is admissible . . . except as
otherwise provided by these rules or by other rules applicable in the courts of this state." Idaho R.
Evid. 402. An expert may express an opinion, which "embraces an ultimate issue." Idaho R. Evid.
' Page l, line 3 of Mr. Wenner's direct testimony identifies him as a Washington D.C. based
attorney, not a California based attorney as Idaho Power alleges. Idaho Power Motion at 3.
2 Sterling Direct at page 10, line 24 through page 11 line l0; page 11 line 13 through page 12 line
4ipage20linesT -21.
3 Clements Direct at page Zline2 - 4;page 5 lines 6 - 9; page 6 lines 17 -23;pageT line 3 through
page l0line 10.
a Dickman Direct at page 6line 6 though pageT line 12; page 8 line 18 through page g line 19.
'Yankle Direct at page 3 lines 4- 17 and page 5 lines 7 - 12.6ICL and Sierra Club provide these references as examples and acknowledge these and other
witnesses have similar direct and rebuttal testimony.
IPC-E-15-01, AVU-E-15-01, PAC-E-15-03 2
ICL and Sierra Club Opposition to Staff and Idaho Power Motions to Strike
704.lnthis proceeding, the ultimate issue is whether or not reducing long-term PURPA
contracts from twenty years to two years violates the purpose of PURPA and FERC's regulations.
As an expert witness', Mr. Wenner's testimony is admissible to the extent it "will assist the
trier of fact to understand the evidence or to determine a fact in issue[.]" Idaho R. Evid. 702. As
Staffrecognizes, "the Commission generally follows '[r]ules as to the admissibility of evidence
used by the district court of Idaho in non-jury civil cases.'' StaffMotion at 2.In jury trials, courts
do not allow experts to give legal conclusions because to do so would interfere with a judge's
instructions and confuse the jury. See Hygh v. Iacobs, 961 F.zd 359, 364 (2d Cir. 1992); United
Statesv.Milton,555F.2d 1198, 1203 (5thCir. 1977). Herethereisno juryandthe"[t]hepublic
utility commission is a fact-finding, administrative agency and as such is not bound by the strict
rules of evidence governing courts of law." Application of Citizens Utilities Co.,92ldaho 208,213,
351 P.2d 487,489 (1960). This conforms to Idaho Code S 6l-601 that states, "neither the
commission nor any commissioner shall be bound by the technical rules of evidence." Admitting
Mr. Wenner's testimon/, along with the similar testimony from other parties describing and
opining on the law,8 is appropriate here because there is no jury to confuse. Rather the
Commission is well suited to consider the testimonies and give them the appropriate weight.
Mr. Wenner's testimony regarding his opinion as to whether the fact of a two-year
contract conforms to the intent of PURPA could help the Commission understand the evidence
as applied to a complex regulatory scheme. Idaho Power's Motion cites cases for the proposition
"that the expert opinion of a lawyer regarding a question of law is improper and inadmissible."
Idaho Power Motion at 5. But Courts do admit attorney-witnesses to provide expert opinion on
mixed questions of fact and law. See General/1 Note, Expert Legal Testimofl/, 97 Haw. L. Rev.
7e7 (re84).
ln United States y. Van Dykq the 8th Circuit held that excluding an expert's testimony by
the author of the regulation at issue and a practicing attorney who dealt with the regulation
frequently, was a "reversible error." 14 F.3d 415,422 (8th Cir. 1994). The court concluded the
expert opinion would "clearly have assisted the jury in understanding the regulation", and the
court was concerned because the opponent had been allowed to use an expert witness who gave
his opinion explaining how the regulation had been violated. Id. ln Peckham v. Continental
7 ICL and Sierra Club offer Mr. Wenner as an expert witness under Idaho R. of Evid. 702, not as a
laywitness under Idaho R. of Evid. 701. Accordingly, the Commission may disregard tdaho
Power's assertion this is impermissible lay testimony. Idaho Power Motion at 6.
8 Supra notes 2 - 6; Infra notes 14 - 17.
IPC-E-l 5-01, AVU-E-t 5-01, PAC-E- 1 5-03
ICL and Sierra Club Opposition to Staff and Idaho Power Motions to Strike
Casualty Insurance, Co., two "attorneys versed in the nuances of insurance law" were allowed to
offer "opinion evidence as to proximate cause." 895 F.2d 830,837 (1st Cir. 1990). The court
found that because insurance is a complicated subject where "[a]rcana abound," the attorneys
could be "expected to shed some light'on the practice and the court found it significant that the
opponent's expert witness had also presented an opinion on the ultimate issue of causation. Id.
Mr. Wenner helped develop the regulation at issue, which is part of a complex regulatory system,
and is a practicing attorney in this field since 1976.e His testimony can assist the Commission in
understanding the evidence in this case in the context of the PURPA regulations. Other parties to
the case offer similar testimony, to which the Staffand Idaho Power do not object.to Mr.
Wenner's testimony is just the type of expert opinion on a mixed question of law and fact that is
admissible under the Rules of Evidence.
The other cases relied upon by Staffand Idaho Power are distinguishable. In United States
v. Tamman, the non-attorney expert witness "provided only a recitation of facts and the legal
conclusion that Tamman acted in conformitywith the unidentified SEC rules and regulations
and otherwise did not break the law." 782F.3d 543,553 (9th Cir. 2015). The court concluded,
without analysis, "this is not proper expert opinion." Id.Inthe current matter, Mr. Wenner is
offering much more than a recitation of facts followed by a legal conclusion. Instead, Mr. Wenner
identifies the applicable legal rules and offers his expert opinion on the ultimate issue; just as
witnesses (none of them lawyers) for other parties have done."
Next, in Crow Tribe of Indians v. Racicot, the Crow Tribe offered expert testimony
defining the term "lotteries" as used in a contract. 87 F.3d 1039, 1045 (9th Cir. 1996). The Court
concluded, again with little discussion, that expert witness' testimony, who spoke only to the
general meaning of a lottery, was not admissible. Rather "experts interpret and analyze factual
evidence." Id.Here, Mr. Wenner, just as other witnesses, interprets the fact of a two-year contract
term in the context of PURPA.
In citing to Carnellv. Barker Management,Inc.,the Staffand Idaho Power Motions
disregard the compelling facts that made it clear that the so-called expert was anything but one.
48 P.3d 65I,657 (Idaho 2002). The court found that the expert witness was not qualified in the
e ldaho Power alleges ICL and Sierra Club rely only on Mr. Wenner's FERC experience to
establish his qualifications. Idaho Power Motion at 2. As explained on page I of Mr. Wenner's
testimony it is the combination of experience as a FERC Attorney and decades in private practice
that qualifies Mr. Wenner as an expert in this field.
'o Supra notes 2 - 6; Infra notes 14 - 17
" Supra notes 2 - 6; Infra notes 14 - 17
IPC-E-1 5-01, AVU-E-l 5-01, PAC-E-l 5-03
ICL and Sierra Club Opposition to Staff and Idaho Power Motions to Strike
area of fire investigation and cited the "lack of information in his affidavit concerning his
education, training, and experience." Id. Next, it "tried to determine if [the witness's] testimony
was based on "scientific, technical, or other specialized knowledge" as required by I.R.E. 702." Id.
And it found there was "no explanation of the methodology" used and his "testimony lacked
factual foundation." Id.It is only after finding the expert wholly lacking that the court mentioned
that his affidavit contained only "conclusions as to questions of law." Id. Unlikein Tamman,
Crow Tribq and Carnell, Mr. Wenner is qualified to testifr about the regulations of PURPA and
grounds his testimony in the facts of this case in the context of the law and regulations.
Finally, Idaho Power's argument that Mr. Wenner's testimony is irrelevant misses the
mark. Idaho Power Motion at 8. ICL and Sierra Club do not offer Mr. Wenner's testimony in an
attempt to argue deference to FERC. Even if that was true, the first step in statutory
interpretation is to consider the plain language of the statute and only if this is ambiguous may a
court look to other sources, none of which include later statements by former agency employees.
Chevron USA Inc. v. NRDC Inc., 467 U.S. 837, 842-843 ( 1984). Idaho Power then offers that
testimony on this issue is irrelevant because the Commission is free to "preform a first hand
review" of FERC orders and regulations. Idaho Power Motion at 8. ICL and Sierra Club
encourage the Commission to do so. However, several other parties found it relevant witness
testimony to explain the outlines of PURPA and FERC regulations including the testimonies of
Mr. Sterling, Mr. Clements, Mr. Dickman, and Mr. Yankle, among others.r2Idaho Power does
not appear to object to this type of testimony as irrelevant.
Like these other witnesses, who do not appear to be objectionable to Staffand Idaho
Power, Mr. Wenner's testimony can assist the Commission in understanding the facts of this case
in the context of the law. "The public utility commission is a fact-finding, administrative agency
and as such is not bound by the strict rules of evidence governing courts of law." Application of
Citizens Utilities Co, 82 Idaho 208, 213, 351 P .2d 487 , 489 ( 1960) . ICL and Sierra Club agree with
Staffthat Commission generally follows the rules of evidence for non-jury civil cases. Staff
Motion at 2. The rules of evidence are generally permissible and allow for expert opinion on
ultimate issues in the case. Idaho R. of Evid. 402,704. Mr Wenner's is a qualified expert who
addresses relevant issues by interpreting the fact of a two-year contract in the context of a
complex regulatory scheme. This testimony can assist the Commission to understand the
evidence. Idaho R. Evid 702. Other parties submit direct and rebuttal testimony that recites
12 Supra notes 2 - 6; Infra notes 14 - 17
IPC-E- 1 5-01, AVU-E-l 5-01, PAC-E-l 5-03
ICL and Sierra Club Opposition to Staff and Idaho Power Motions to Strike
PURPA law and regulations and make conclusions based thereon.r3 Instead of striking all of Mr.
Wenner's testimony, the better course is to allow all relevant testimony and for the Commission
to exercise the discretion to give each testimony the weight it deserves.
II. ExcruoING MR. WnNNnn's TnstnaoNy oNLy WoULD BE AN ABUSE oF DrscnntroN.
"The trial court's broad discretion in admitting evidence will only be disturbed on appeal
whentherehasbeenaclearabuseofdiscretion." Statev.Merwin,13l Idaho 642,646 (Idaho
1998). Staffand Idaho Power Motions are overbroad and excluding all of Mr. Wenner's
testimony beyond page 1, line 14, as requested by Staffand all of Mr. Wenner's direct and
rebuttal testimony as requested by Idaho Power, but not other witnesses who describe and opine
on the law, would exclude admissible expert opinion and be a clear abuse of discretion. For
example, the very next potion of Mr. Wenner's direct testimony following page 1 line 14 provides
further background regarding his qualifications and the purpose of his testimony.tn There is no
legitimate reason to exclude this type of truthful testimony. Further, other sections of Mr.
Wenner's direct testimony sets forth some basic PURPA regulations, just as Mr. Clements does
on page 7 line 3 through page 10, line 10, and similar to Mr. Sterling's testimony that "FERC's
regulations implementing PURPA are silent on contract length. Furthermore, I am not aware of
any FERC case or court decision involving a requirement for a minimum contract length."rs
Beyond identifring the applicable law, other witnesses also make legal conclusions like this
question and answer in Mr. Sterling's direct:
Q. Is a 2}-year maximum contract length inconsistent with PURPA's objectives?
A. Yes, it can be. One of the Commission's primary duties under PURPA is to set avoided
cost rates that are just and reasonable to customers, in the public interest, and not
discriminatory to QFs. Such rates must not exceed incremental costs to the utility. The
concern arises when contracts extend for many years and the forecast of avoided cost
becomes inaccurate. Long-term contracts based on forecasted rates create greater risks for
customers because the rates in the later years are not reflective of avoided costs.r6
And this exchange from Mr. Dickman's direct:
13 Supra notes 2 - 6; infra notes 14 - 17
'o Wenner Direct at page 1 line 15 - 19.
'5 Sterling Direct at page 11 line 13 through 16.
'6 Sterling Direct at page 10, line 24 through Page 11 line 10.
IPC-E-15-01, AVU-E-l 5-01, PAC-E-l 5-03
ICL and Siena Club Opposition to Staff and Idaho Power Motions to Strike
Q. Would reflecting proposed QFs in the determination of avoided cost rates be
consistent with FERC PURPA regulations?
A. Yes. Federal regulations governing the rates for QF purchases state that, to the extent
practicable, the following shall be taken into account: "[t]he availability of capacity or
energy from a qualifring facility during the system daily and seasonal peak periods,
including . . . [t]he individual and aggregate value of energy and capacity from qualifring
facilities on the electric utility's system." This language makes it clear that considering QFs
in the aggregate is an important consideration because it may impact the accuracy of
avoided cost rates.rT
Mr. Alphin's rebuttal testimony also describes PURPA law and regulations and offers legal
conclusions like: "The must-take, or mandatory purchase, obligation of PURPA is the way
PURPA was designed to promote the development of additional cogeneration and small power
production facilities."rs To exclude only the testimony of Mr. Wenner as improper legal opinion,
without excluding other testimony that opines on the meaning PURPA and states a definitive
conclusion would be an abuse of discretion. The better course is to allow all relevant testimony
and for the Commission to exercise discretion to give each testimony the weight it deserves.
III. Mn. WErvxnnrs Nor pRACTICTNG LAwIN Ioeno.
Staffs Motion offers a second argument: "To the extent Wenner asserts his testimony
should be considered as legal memoranda, rather than expert opinion, such a submission would
violate Idaho statutes governing the practice of law." StaffMotion at 4. ICL and Sierra Club offer
Mr. Wenner's testimony as expert opinion, not a legal memorandum. Regardless, Mr. Wenner is
not practicing law in Idaho. According to Idaho Code S 3-420 unlawful practice of law may occur
when a person, who is not a member of the Idaho bar or otherwise authorized to practice here,
"shall . . . practice or assume to act or hold himself out to the public as a person qualified to
practice or carry on the calling of a lawyer within this state.' The Idaho Supreme Court
interpreted this rule to cover the act of representing another before a court of justice, and "in a
larger sense, it includes legal advice and counsel, and the preparation of instruments and
contracts by which legal rights are secured, although such matter may or may not be depending
" Dickman Direct at page 6line 6 - 14 (internal citations omitted).tsAlphin Rebuttal at page 14,lines 16 - 19.
IPC-E- 1 5-0 1, AVU-E-1 5-01, PAC-E-l 5-03
ICL and Sierra Club Opposition to Staff and Idaho Power Motions to Strike
inacourt." InreMathews,58Idaho772,776 (Idaho1938); StateV.Bettwieser,l43Idaho5S2,
586 (Idaho App. 2006). Mr. Wenner is not holding himself out to the public as practicing law in
Idaho. Mr. Wenner did not prepare any instrument that secured legal rights. Mr. Wenner is not
offering a legal advice to the public, or appearing before the Commission as a representative of
another. Rather Mr. Wenner was retained by properly represented organizationst'to provide
expert witness testimony. Mr. Wenner is not practicing law in Idaho.
IV. CoNcrusroN.
ICL and Sierra Club urge the Commission to reject the Staffand Idaho Power Motions to
Strike the testimony of Mr. Wenner. "[N]either the commission nor any commissioner shall be
bound by the technical rules of evidence." Idaho Code S 61-601. ICL and the Sierra Club
encourage the Commission to follow their traditional course of action and use it's substantial
discretion to ensure an adequate record and give the evidence the weight it deserves. To exclude a
single witness but not other witnesses who submit similar testimony is the most obvious way the
Commission could abuse this discretion. For these reasons,ICL and Sierra Club urge the
Commission to deny the Staff and Idaho Power Motions to Strike.
Respectfully submitted this 25s day of June 2015,
Attorney for Idaho Conservation
League and Sierra Club
le Council for ICL is a member in good standing of the Idaho Bar. The Commission granted Pro
Hac Vice status to Council for Sierra Club in Order No. 33245.
IPC-E-15-01, AVU-E-15-01, PAC-E-15-03 8
ICL and Sierra Club Opposition to Staff and Idaho Power Motions to Strike
trBenjamin I. Otto
CERTIFICATE OF SERVICE
I hereby certifr that on this 22nd day of April 2015, I delivered true and correct copies of
the DIRECT TESTIMONY OF ADAM WENNER, DIRECT TESTIMONY OF R. THOMAS
BEACH, and, EXHIBITS 301 - 303 on behalf of the Idaho Conservation League and the Sierra
Club the following persons via the method of service noted:
Hand Delivery:
Yvonne. ho gel@pacifrcorp. com
Ted.we ston@pacifi corp. com
datareque s t@pacifrcorp. c om
J.R. Simplot Corp & Clearwater Paper
Peter J. Richardson
Gregory M. Adams
Richardson Adams, PLLC
515 N. 27th Street
Boise, lD 83702
peter@richardsonadams. com
gre g@richardsonadmas. com
Dr. Don Reading
6070 Hill Road
Boise,ID 83703
dreading@mindspring. com
Carol Haugen, Clearwater Paper
Carol.haugen@clearwater. com
Twin Falls Canal, Northside Canal,
American Falls Reservoir District No 2.
C. Tom Arkoosh
Arkoosh Law Offices
802 W. Bannock St Ste. 900
P.O. Box 2900
Boise,ID 83701
Tom.arkoo sh@arkoosh. com
Erin.cecil@arkoosh. com
Intermountain Energ,t P artner s
Dean J. Miller
McDevitt & Miller LLP
420W. Bannock Street
PO Box 2564-83701
Boise,lD 83702
j [e-mail]
Jean Jewell
Commission Secretary
Idaho Public Utilities Commission
42TW.Washington St.
Boise,lD 83702-5983
(Original and seven copies provided)
Electronic Mail:
Idaho Power
Donovan E. Walker
Regulatory Dockets
Idaho Power Company
1221 West Idaho Street
P.O. Box 70
Boise,ID 83707
dwalker@idahopower. com
[e-mail]
Avista
Michael G. Andrea, Senior Counsel
Clint Kalich
Avista Corporation
l4l I E. Mission Ave, MSC-23
Spokane, WA99202
Michael. andrea@avistacorp. com
Clint.kalish@avistacorp. com
RoclE Mountain Power
Yvonne R. Hogle
Daniel Solander
Ted Weston
Rocky Mountain Power
201 S. Main Street, Ste 2400
Salt Lake City, UT 84111
Daniel. solander@pacifi corp. com
Leif Elgethun, PE, LLE AP
Intermountain Energy Partners
PO Box 7354
Boise,lD 83707
[e-mail]
Idaho lrrigation Pumpers As sociation
Eric L. Olsen
Racine, Olson, Nye, Budge & Bailey,
Chartered
P.O. Box l39l
201 E. Center
Pocatello,ID 83204
[e-mail]
Anthony Yankel
29814 Lake Road
Bay Village, OH 44140
[e-mail]
Micron Technologlt
Richard Malmgren
Assistant General Counsel
Micron Technology Inc.
800 South Federal Way
Boise,lD 83716
remalmgren@micron. com
Frederick J Schmidt
Pamela S Howland
Holland & Hart LLP
377 S. Nevada St.
Carson City, NV 89703
fschmidt@hollandhart. com
phowland@holandhart. com
Amalgamated Sugar
Scott Dale Blickenstaff
Amalgamated Sugar Co LLC
1651 S. Saturn Way, STE 100
Boise, Idaho 83702
sblickenstaff@amalsugar. com
Ren ew abl e En er gy C o aliti o n
Ronald L. Williams
Williams Bradbury, P.C.
1015 W. Hays St.
Boise,Idaho 83702
ron@williamsbradbury. com
Irion Sanger
Sanger law, P.C.
1117 SW 53'd Avenue
Portland, OR 97215
irion@sinager-law. com
Agltowu DCD, LLC andAgpower ferome,
LLC.
Andrew Iackura
Sr. Vice President North America
Development
Camco Clean Energy
9360 Station Street. Suite 375
Lone Tree, CO 80124
Andrewj [e-mail]
Dean J. Miller
McDevitt & Miller LLP
420W. Bannock Street
PO Box 2564-83701
Boise,ID 83702
j oe@mcdevitt-miller. com
EcoPlexus,Inc
Iohn R. Hammond,Ir.
Fisher Pusch LLP
101 S. Capitol Blvd., Suite z0t
Boise ID 83702
[e-mail]
Iohn Gorman
Ecoplexus,Inc.
650 Townsend Street, Suite 310
San Fransisco, CA 94103
[e-mail]
Benjamin J. Otto