20100423Merlyn W Clark Affidavit.pdf

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Merlyn W. Clark, ISB No. 1026
D. John Ashby, ISB No. 7228
HAWLEY TROXELL ENNIS & HAWLEY LLP
877 Main Street, Suite 1000
P.O. Box 1617
Boise, ID 83701-1617
Telephone: [phone]
Facsimile: 208.954.5210
Email: mclark(qhawleytroxell.com
jashbY(qhawleytoxell.com
Attorneys for Petitioner/Appellant Ada County Highway District
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IN THE SUPREME COURT OF THE STATE OF IDAHO
IN THE MATTER OF THE APPLICATION )
OF IDAHO POWER COMPANY TO )
MODIFY ITS RULE H LINE EXTENSION )
TARIFF RELATED TO NEW SERVICE )
ATTACHMENTS AND DISTRIBUTION )LINE INSTALLATIONS. )
)
)
)
)
)
)
)
)
)
IDAHO PUBLIC UTILITIES COMMISSION)
and IDAHO POWER COMPANY, )
)
)
)
)
BUILDING CONTRCTORS
ASSOCIATION OF SOUTHWESTERN
IDAHO,
Petitioner/Appellant,
vs.
Respondents On AppeaL.
AFFIDAVIT OF MERLYN W. CLARK
IN SUPPORT OF STIPULATED
MOTION FOR EXTENSION OF TIME
FOR FILING AND REQUESTED
SCHEDULE FOR FURTHER BRIEFING
Supreme Cour Docket No. 37293-2010
Idaho Public Utilties Commission No.
IPC-E-08-22
AFFIDAVIT OF MERLYN W. CLARK IN SUPPORT OF UNOPPOSED MOTION FOR
EXTENSION OF TIME FOR FILING APPELLANT'S BRIEF AFFIDAVIT OF MERLYN W.
CLARK IN SUPPORT OF STIPULATED MOTION FOR EXTENSION OF TIME FOR
FILING AND REQUESTED SCHEDULE FOR FURTHER BRIEFING - 1
44805.0001.1879712" 1
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IN THE MATTER OF THE APPLICA nON
OF IDAHO POWER COMPANY TO
MODIFY ITS RULE H LINE EXTENSION
TARIFF RELATED TO NEW SERVICE
ATTACHMENTS AND DISTRIBUTION
LINE INSTALLATIONS.
)
)
)
)
)
)
)
)
)
)
)
)
)
IDAHO PUBLIC UTILITIES COMMISSION)
)
Respondent on Appeal, )and ))
)
)
Respondentlespondent on AppeaL. ~
)
ADA COUNTY HIGHWAY DISTRICT,
Petitioner/Appellant,
vs.
IDAHO POWER COMPANY,
Supreme Cour Docket No. 37294-2010
Idaho Public Utilties Commission No.
IPC-E-08-22
Merlyn W. Clark, being first duly sworn upon oath, deposes and states as follows:
1. I am an attorney of record for the Petitioner/Appellant, Ada County Highway
District, in the above-captioned action.
2. I am duly admitted to the practice of law before this Court and the cours of the
State of Idaho, and maintain offices at 877 Main Street, Suite 1000, Boise, Idaho.
3. I have personal knowledge of the matters herein referred to, and make this
Affdavit in support of Appellant's Unopposed Motion for Extension of Time for Filng
Appellant's Brief.
4. Appellant's Brief is curently due May 3, 2010.
5. No previous extension of time has been granted.
AFFIDAVIT OF MERLYN W. CLARK IN SUPPORT OF UNOPPOSED MOTION FOR
EXTENSION OF TIME FOR FILING APPELLANT'S BRIEF AFFIDAVIT OF MERLYN W.
CLARK IN SUPPORT OF STIPULATED MOTION FOR EXTENSION OF TIME FOR
FILING AND REQUESTED SCHEDULE FOR FURTHER BRIEFING - 2
44805"0001.18797n 1
6. No previous request for an extension of time has been denied.
7. The reasons or grounds why an extension is necessar are that my schedule has
not allowed adequate time to prepare Appellant's Brief. Since receipt of the Cour's Order dated
March 29, 2010, establishing the deadline for Appellant's Brief, my available time to work on
the Brief has been limited by prior commitments, including several matters before this Court.
For example, in the last two weeks I have fied a Motion to Dismiss and supporting
memorandum with this Cour in Fazzio v. Mason, Supreme Cour Case No. 36068, on April 16,
2010. I am currently working on a Reply brief to be filed soon in the Wasden v. Idaho State
Board of Land Commissioners matter. In addition to these matters before this Cour, my
schedule over the next few weeks includes several mediations, hearngs and depositions.
8. This appeal wil ultimately decide whether the Idaho Public Utilties Commission
has authority to issue regulations related to the relocation of public utilty lines on public rights-
of-way or whether such issues fall within the exclusive jursdiction of the highway distrcts.
Given the serious nature of this matter, it deserves to be fully briefed with adequate time.
10. Appellant requests a 21 day extension, which will make May 24, 2010 the date on
which Appellant's Brief will be due.
1 1. Over the last few days, I have discussed this request for extension of time with
counsel for Respondents and with counsel for the Building Contractors Association of
Southwestern Idaho (Appellant in the consolidated appeal), none of whom object to the request
for extension of time. I am advised that counsel for the Building Contractors Association of
Southwestern Idaho has a four-day trial scheduled for the end of ApriL. I am advised that
Counsel for Idaho Power wil be out of town for training for approximately thee weeks during
AFFIDAVIT OF MERLYN W. CLARK IN SUPPORT OF UNOPPOSED MOTION FOR
EXTENSION OF TIME FOR FILING APPELLANT'S BRIEF AFFIDAVIT OF MERLYN W.
CLARK IN SUPPORT OF STIPULATED MOTION FOR EXTENSION OF TIME FOR
FILING AND REQUESTED SCHEDULE FOR FURTHER BRIEFING - 3
44805.001.1879712.1
the month of June. For purposes of keeping the same briefing schedule for the two consolidated
appeals, and for puroses of allowing all paries adequate time for briefing, it is respectfully
submitted that the following schedule apply to each Appellants' Brief and each Respondents'
Brief:
a) Each Appellants' Briefwill be due May 24,2010
b) Each Respondents' Briefwil be due July 9, 2010
c) Any Reply Brief wil be due as per the standard deadline set forth in I.A.R. 34( c).
12. Counsel for all paries have agreed to this requested briefing schedule.
~
STATE OF IDAHO )
) ss.County of Ada )
UttJ.SUBSCRIBED AND SWORN before me this day of April, 2010.
~~Name:~~
Notar Public for Idah
Residing at I'"l1m, ID
My commission ex~ires ,J/. II, ó/OIS=
AFFIDAVIT OF MERLYN W. CLARK IN SUPPORT OF UNOPPOSED MOTION FOR
EXTENSION OF TIME FOR FILING APPELLANT'S BRIEF AFFIDAVIT OF MERLYN W.
CLARK IN SUPPORT OF STIPULATED MOTION FOR EXTENSION OF TIME FOR
FILING AND REQUESTED SCHEDULE FOR FURTHER BRIEFING - 4
44805.0001.1879712.1
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this ~ay of April, 2010, I caused to be served a tre
copy of the foregoing AFFIDAVIT OF MERLYN W. CLARK IN SUPPORT OF UNOPPOSED
MOTION FOR EXTENSION OF TIME FOR FILING APPELLANT'S BRIEF by the method
indicated below, and addressed to each of the following:
Jean D. Jewell .,/ U.S. Mail, Postage Prepaid
Commission Secretar Hand Delivered
IDAHO PUBLIC UTILITIES COMMISSION _ Overnight MailP.O. Box 83720 E-mailBoise, ID 83720-0074 _ Telecopy
Kristine Sasser
IDAHO PUBLIC UTILITIES COMMISSION
P.O. Box 83720
Boise, ID 83720-0074
Lisa Nordstrom
Baron L. Kline
IDAHO POWER COMPANY
P.O. Box 70
Boise, Idaho 83707-0070
Scott Sparks
Gregory W. Said
IDAHO POWER COMPANY
P.O. Box 70
Boise, Idaho 83707-0070
Michael C. Creamer .,'.
GIVENS PURSLEy:tLP
601 W. Banock St.
Boise, ID 83702
,,/ U.S. Mail, Postage Prepaid
Hand Delivered
_ Overnght Mail
_ E-mail: krs.sasser(tpuc.daho.gov
_ Telecopy
./ U.S. Mail, Postage Prepaid
Hand Delivered
_ Overnight Mail
_ E-mail: Inordstrom(tidahopower.com
bklne(tidahopower .com
_ Telecopy:
/U.S. Mail, Postage Prepaid
Hand Delivered
_ Overnight Mail
_ E-mail: ssparks(tidahopower.com
gsaid(tidahopower.com
_ Telecopy
--.S. Mail, Postage Prepaid
Hand Delivered
_ Overnight Mail
_ E-mail: mcc(tgivenspursley.com
_ Telecopy
AFFIDAVIT OF MERLYN W. CLARK IN SUPPORT OF UNOPPOSED MOTION FOR
EXTENSION OF TIME FOR FILING APPELLANT'S BRIEF AFFIDAVIT OF MERLYN W.
CLARK IN SUPPORT OF STIPULATED MOTION FOR EXTENSION OF TIME FOR
FILING AND REQUESTED SCHEDULE FOR FURTHER BRIEFING - 5
44805.0001.1879712.1
N
Micheal Kurz, Esq.
Kur J. Boehm, Esq.
BOEHM, KURTZ & LOWRY
36 E. Seventh Street, Suite 1510
Cincinnati, OH 45202
Matthew A. Johnson
Davis F. VanderVelde
WHITE PETERSON GIGRA Y ROSSMAN
NYE & NICHOLS, P.A.
5700 E. Franlin Road, Suite 200
Nampa, ID 83687
Kevin Higgins
ENERGY STRATEGIES, LLC
Parkside Towers
215 S. State Street, Suite 200
Salt Lake City, UT 84111
./ U.S. Mail, Postage Prepaid
Hand Delivered
_ Overnight Mail
_ E-mail: mkurtz(tBKLIawfirm.com
kboehm(tBKLawfir.com
_ Telecopy
L U.S. Mail, Postage Prepaid
Hand Delivered
_ Overnight Mail
_ E-mail: mjohnson(thitepeterson.com
dvandervelde(thitepeterson.com
_ Telecopy
~.S. Mail, Postage Prepaid
Hand Delivered
_Overnight Mail
_ E-mail: khiggns(tenergystrat.com
_ Telecopy
AFFIDAVIT OF MERLYN W. CLARK IN SUPPORT OF UNOPPOSED MOTION FOR
EXTENSION OF TIME FOR FILING APPELLANT'S BRIEF AFFIDAVIT OF MERLYN W.
CLARK IN SUPPORT OF STIPULATED MOTION FOR EXTENSION OF TIME FOR
FILING AND REQUESTED SCHEDULE FOR FURTHER BRIEFING - 6
44805.0001.1879712.1