20110902Notice of Appeal.pdf

WILLIAMS. BRADBURY
ATTORNEYS AT LAW
August 31,2011
RECEIVED
ion AUG 3' PM l :46
Ms. Jean Jewell
Commission Secreta
Idaho Public Utilties Commission
472 W. Washington
Boise,ID 83702
Su p - ~ - J I - 0 d-
Re: PAC-E-11-01 through PAC-E-11-05
Dear Ms. Jewell:
Enclosed please find the original Notice of Appeal for filing with the Idaho Supreme
Cour. Also enclosed are the following:
1. Our check in the estimated amount of $1 00 made payable to the Idaho Public
Utilties Commssion for a copy of the agency's record, and
2. Our check in the amount of $86 made payable to the Idaho Supreme Cour for the
filing of the Notice of AppeaL.
We have mailed a copy of the Notice of Appeal, together with our check in the amount
of$370.50, directly to Constance S. Bucy requesting a copy of the Reporter's transcript be
delivered directly to you.
Please call should you have any questions.
Sincerely,
J?~W~
Ronald L. Wiliams
RLW/jr
Enclosures
1015 W. Hays Street - Boise, ID 83702
Phone: [phone] - Fax: [phone] - ww.wiamsbradbur.com
Ronald L. Wiliams ISB No. 3034
Wiliams Bradbur, Attorneys at Law
1015 W. Hays Street
Boise,ID 83702
Phone: [phone]
Fax: [phone]
ron(qwillamsbradbur .com
Lar F. Eisenstat
Michael R. Engleman
Dickstein Shapiro LLP
1825 Eye Street, NW
Washington, DC 20006-5403
Tel: [phone]
Fax: [phone]
eisenstatl(qdicksteinshapiro.com
engleman(qdicksteinshapiro.com
Attorneys for Appellant Cedar Creek Wind, LLC
RECEIVED
iuii AUG 3 i PM I: 46
ie
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
IN THE MATTER OF THE APPLICATION OF )
ROCKY MOUNTAIN POWER FOR APPROVAL )
OF A POWER PURCHASE AGREEMENT )
BETWEEN RMP AND CEDAR CREEK WIND, )
LLC (RTTLESNAKE CANYON PROJECT) )
)
)
)
)
)
)
)
)
)
)
)
)
)
IN THE MATTER OF THE APPLICATION OF
ROCKY MOUNTAIN POWER FOR APPROVAL
OF A POWER PURCHASE AGREEMENT
BETWEEN RMP AND CEDAR CREEK WIND,
LLC (COYOTE HILL PROJECT)
IN THE MATTER OF THE APPLICATION OF
ROCKY MOUNTAIN POWER FOR APPROVAL
OF A POWER PURCHASE AGREEMENT
BETWEEN RMP AND CEDAR CREEK WIND,
LLC (NORTH POINT PROJECT)
NOTICE OF APPEAL, Page 1
CASE NO. PAC-E-ll-Ol
NOTICE OF APPEAL
CASE NO. PAC-E-ll-02
NOTICE OF APPEAL
CASE NO. PAC-E-ll-03
NOTICE OF APPEAL
IN THE MATTER OF THE APPLICATION OF
ROCKY MOUNTAIN POWER FOR APPROVAL
OF A POWER PURCHASE AGREEMENT
BETWEEN RMP AND CEDAR CREEK WIND,
LLC (STEEP RIDGE PROJECT)
IN THE MATTER OF THE APPLICATION OF
ROCKY MOUNTAIN POWER FOR APPROVAL
OF A POWER PURCHASE AGREEMENT
BETWEEN RMP AND CEDAR CREEK WIND,
LLC (FIVE PINE PROJECT)
)
) CASE NO PAC-E-ll-04
)
)
)
)
)
)
)
)
)
)
NOTICE OF APPEAL
CASE NO. PAC-E-ll-05
NOTICE OF APPEAL
TO: RESPONDENTS IDAHO PUBLIC UTILITIES COMMISSION AND DEPUTY
ATTORNEY GENERAL FOR THE COMMISSION, KRSTINE SASSER.
NOTICE is HEREBY GIVEN THAT:
1. The above named Appellant Cedar Creek Wind, LLC ("Appellant"), appeals
against the above-named Respondent, Idaho Public Utilties Commission ("Respondent" or
"Commission"), to the Idaho Supreme Cour from the Commission's Final Order No. 32260
dated June 8, 2011, Errata to Order No. 32260 dated June 14,2011 and the Commission's Final
Order on Reconsideration, Order No. 32304 dated July 27, 2011 ("Orders") in the above
numbered cases.
2. Appellant has a right to appeal to the Idaho Supreme Cour pursuant to Idao
Code § 61-627. The Orders from which this appeal is taken are appealable final orders under
Idaho Code § 61-627 and I.A.R II(e).
3. The following is a preliminar statement of the issues on appeal which Appellant
presently intends to assert in the appeal, subject to modification and development as appropriate:
a. Whether the Commission violated federal law by holding that the only means
to establish a "legally enforceable obligation" under the Public Utilty
Reguatory Policies Act of 1978 ("PURPA") and the Federal Energy
Regulatory Commission's implementing regulations, for the purose of
NOTICE OF APPEAL, Page 2
establishing the date on which Appellant's right to avoided cost rates under
PURPA arose, was through a "fully executed contract."
b. Whether the Commission's resulting failure to (1) find that the Appellants had
established, prior to December 14, 2010, a "legally enforceable obligation"
under PURP A and (2) therefore approve the power purchase agreements
between the Appellant and Rocky Mountan Power was arbitrar, capricious,
in excess of the Commssion's authority or otherwise in violation of the law.
c. Whether the Commission's Orders denying Appellant's request for
grandfathered rates for its five projects deviate, without any explanation, from
prior Commssion orders implementing PURPA's "legally enforceable
obligation" standard, entered in factually-similar circumstaces, and
establishing so-called " grandfathering" criteria for determining whether such
legally enforceable obligation arose prior to contract execution, and are
therefore arbitrar, capricious, in excess of the Commission's authority or
otherwse in violation of the law.
d. Whether the Commission's Orders establishing, without any prior notice to
the Appellant, a new "bright line" rule that the Appellant must have had a
fully executed contract in order to be considered eligible for grandfathered
rates, terms and conditions, is a violation of Idaho law, is arbitrar and
capricious, and is in excess of the Commission's authority.
e. Appellant reserves the right to identify and raise other issues as the basis for
this appeal to the extent permitted by law.
4. No portion of the record has been sealed.
5. There is no reporter's transcript in this case for the reason that the five cases were
processed pursuant to Modified Procedure pursuant to Commission Rule 201 et. seq.
However, the appellant requests a parial transcript comprised of the following
portions of the reporter's transcript in both electronic and hard copy from IPUC Case
No. GNR-E-II-0l, as follows:
a. Direct and rebuttal testimony and cross examination of Bruce Grswold in
IPUC Case No. GNR-E-II-0l consisting of transcript pages 268 through 382.
NOTICE OF APPEAL, Page 3
6. Appellant requests preparation of a stadard agency record on Appeal pursuat to
i.A.R. 28. In addition to the stadard agency record Appellant requests that the
following documents be included in the agency's record:
Date Description
1/26/11 Affidavit of Dana Zentz and Exhbits thereto, Cases No. PAC-E-
11-01 through PAC-E-ll -05.
Varous All Orders and Notices in IPUC Case No. GNR-E-I0-04
11/8/2010 Joint Petition of Utilties in IPUC Case No. GNR-E-1O-04.
12/23/2010 Rocky Mountain Power Comments in IPUC Case No. GNR-E-
10-04.
1/20/2011 Reply Comments of Rocky Mountain Power in IPUC Case No.
GNR-E-1O-04, dated Januar 19,2011.
12/22/2010 Comments of the Commssion Staff in IPUC Case No. GNR-E-
10-04, dated December 22,2010.
1/19/2011 Reply Comments of Commission Staff in IPUC Case No. GNR-
E-1O-04, dated Januar 19,2011.
Various All Orders and Notices in IPUC Case No. GNR-E-II-Ol.
7. I certify:
a. That a copy of this notice of appeal has been served on the reporter of whom a
transcript has been requested as named below at the address set out below:
CSB Reporting
23876 Applewood Way
Wilder, ID 83676
csb~heritagewifi.com, 208-890-5198
b. That the Secreta of the Commission has been paid the estimated fee for
preparation of the reporter's transcript.
c. That the estimated fee for preparation of the Commission's record has been
paid;
NOTICE OF APPEAL, Page 4
d. That the appellate filing fee has been paid to the Secreta of the Commssion
in the amount of eighty six dollars and no cents ($86.00); and
e. That service has been made upon all paries required to be served pursuat to
Idaho Appellate Rule 20.
DATED: This 11 day of August, 2011.
NOTICE OF APPEAL, Page 5
WILLIAMS BRADBURY, P.C.
,
By JlAlw~
Ronald L. Wiliams
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this '1 J day of August, 2011, I caused to be served a true
and correct copy of the foregoing document upon the following individuals in the manner indicated
below:
Ted Weston
Rocky Mountain Power
201 South Main, Suite 2300
Salt Lake City, UT 84111
E-Mail: ted.westonCIpacificorp.com
Daniel E. Solander
Rocky Mountain Power
201 South Main, Suite 2300
Salt Lake City, UT 84111
E-Mail: danieLsolanderCIpacificorp.com
Data Request Response Center
PacifiCorp
825 NE Multnomah, Suite 2000
Portland, OR 97232
E-Mail: datarequestCIpacificorp.com
Kenneth E. Kaufmann
Lovinger Kaufman LLP
825 NE Multnomah, Suite 925
Portland, OR 97232-2150
E-Mail: kaufmannCIlklaw.com
Kristine Sasser
Idaho Public Utilties Commission
472 W. Washington (zip: 83702)
POBox 83720
Boise,ID 83720-0074
E-Mail: kris.sasserCIpuc.idaho.gov
Larr F. Eisenstat
Dickstein Shapiro LLP
1825 Eye Street, NW
Washington, DC 2006-5403
E-Mail: eisenstatlCIdicksteinshapiro.com
NOTICE OF APPEAL, Page 6
D Hand Delivery
D US Mail (postage prepaid)
D Facsimile Transmission
D Federal Express
I: Electronic Transmission
D Hand Delivery
D US Mail (postage prepaid)
D Facsimile Transmission
D Federal Express
I: Electronic Transmission
D Hand Delivery
D US Mail (postage prepaid)
D Facsimile Transmission
D Federal Express
I: Electronic Transmission
D Hand Delivery
D US Mail (postage prepaid)
D Facsimile Transmission
D Federal Express
I: Electronic Transmission
D Hand Delivery
D US Mail (postage prepaid)
D Facsimile Transmission
D Federal Express
I: Electronic Transmission
D Hand Delivery
D US Mail (postage prepaid)
D Facsimile Transmission
D Federal Express
I: Electronic Transmission
Michael R. Engleman
Dickstein Shapiro LLP
1825 Eye Street, NW
Washington, DC 2006-5403
E-Mail: englemanmCIdicksteinshapiro.com
Constance S. Bucy
CSB Reporting
23876 Applewood Way
Wilder,ID 83676-5137
D Hand Delivery
D US Mail (postage prepaid)
D Facsimile Transmission
D Federal Express
I: Electronic Transmission
D Hand Delivery
I: US Mail (postage prepaid)
D Facsimile Transmission
D Federal Express
D Electronic Transmission
J?~ihJ~
Ronald L. Willams
NOTICE OF APPEAL, Page 7