20111024Stipulated Motion.pdf

DONALD L. HOWELL, II
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, ID 83720-0074
(208) 334-03 12
IDAHO BAR NO. 3366
Attorney for the Respondent on Appeal,
Idaho Public Utilities Commission
IN THE SUPREME COURT OF THE STATE OF IDAHO
Sa (J-f;- / /- D '1
IN THE MATTER OF THE APPLICATION OF )
PACIFICORP DBA ROCKY MOUNTAIN )
POWER FOR A DETERMINATION )
REGARDING A FIRM ENERGY SALES )
AGREEMENT BETWEEN ROCKY )
MOUNTAIN POWER AND CEDAR CREEK )
WIND, LLC (RATTLESNAKE CANYON )
PROJECT (11-01), COYOTE HILL PROJECT )
(11-02), NORTH POINT PROJECT (11-03), )
STEEP RIDGE PROJECT (11-04), AND FIVE )
PINE PROJECT (11-05)). )
)CEDAR CREEK WIND, LLC, )
)Petitioner/Appellant, )
)v. )
)
IDAHO PUBLIC UTILITIES COMMISSION, )
)
Respondent, Respondent on Appeal, )
)and )
)
PACIFICORP DBA ROCKY MOUNTAIN )POWER, )
)Respondent. )
)
STIPULATED MOTION TO SUSPEND
APPEAL AND REMAND TO THE
ADMINISTRATIVE AGENCY i
SUPREME COURT
DOCKET NO. 39134-2011
STIPULATED MOTION TO
SUSPEND APPEAL AND
REMAND TO THE
ADMINISTRATIVE AGENCY
COMES NOW Cedar Creek Wind, LLC ("Cedar Creek") and the Idaho Public
Utilties Commission ("PUC") (collectively referred to as the "Paries") through their respective
counsels of record to request that the Cour suspend the appeal in the above-captioned matter and
remand this matter to the PUC pursuant to Appellate Rules 13.2 and 13.3.1 As outlined in
greater detail below, the Paries maintain there is good cause for the Cour to grant this Motion in
order for the Paries to consider a recent decision issued by the Federal Energy Regulatory
Commission ("FERC") regarding the subject matter of the appeaL.
BRIEF IN SUPPORT OF SUSPENSION AND REMAND
A. Background
On July 27, 2011, the PUC issued its final Order on reconsideration No. 32302
affirming its prior decision not to approve five Power Purchase Agreements ("Agreement")
entered into between Cedar Creek and PacifiCorp dba Rocky Mountain Power2 pursuant to the
Public Utility Regulatory Policies Act of 1978 (PURPA).3 The PUC's decision is the primar
subject of the appeal in this case. On August 5, 2011, Cedar Creek fied a Petition with FERC
requesting that the federal agency bring an enforcement action against the PUC pursuant to
PURPA Section 21O(h), 16 U.S.C. § 824a-3(h)(2), or, in the alternative, to make certain findings
related to the PUC's decision. Cedar Creek claimed that the PUC's decision to not approve the
five Agreements is inconsistent with FERC's regulations implementing PURPA. While its
i On October 4, 201 1, PacifiCorp dba Rocky Mountain Power ("Rocky Mountain") fied a Petition to Intervene as a
part in this appeaL. As of the date of this Stipulated Motion, the Court has not ruled upon Rocky Mountain's
Petition. Nevertheless, Rocky Mountain supports the suspension of the appeal and remand to the Commission.
2 See supra n. 1 .
J 16 U.S.C. § 824a-3.
STIPULATED MOTION TO SUSPEND
APPEAL AND REMAND TO THE
ADMINISTRATIVE AGENCY 2
petition to FERC was pending, Cedar Creek on August 31, 2011, fied its Notice of Appeal in
this case.
On October 4,2011, FERC issued an Order in response to Cedar Creek's Petition. In
its Order FERC concluded that the PUC's Order was inconsistent with PURPA and FERC's
regulations implementing PURPA Notice of Intent Not to Act and Declaratory Order, 137
FERC ~ 61,006 (Oct. 4, 2011). Given FERC's recent Order, the Parties believe that it is
appropriate for the appeal to be suspended: (1) to allow the PUC to reconsider its Order in light
of FERC's Order; and (2) to provide the Parties with an opportunity to discuss the possibility of
settling the appeaL.
B. Suspension and Remand to the PUC
Idaho Appellate Rule 1 3( e) provides that unless stayed, the Public Utilties
Commission "shall have continued jursdiction of the matter and the paries consistent with the
provisions of applicable statutes. . . ." I.A.R. 13(e). In addition, Idaho Code § 61-624 provides
that the PUC "may at any time, upon notice to the public utilty affected, and after opportunity to
be heard. . . rescind, alter or amend any order or decision made by it." In this Stipulated Motion,
the Parties are requesting that the appeal be temporarly suspended and the case remanded to the
PUC. I.A.R. 13.3.
Granting the Motion wil allow the underlying parties in the PUC case to review the
recent FERC Order and its effects on the PUC's Orders on appeaL. The suspension and remand
wil also provide the Parties with an opportunity to settle the appeal, thereby conserving pary
and judicial resources.
In considering a suspension on appeal, the Parties must disclose the duration of the
requested suspension. I.A.R. 13 .2. The Parties request that the appeal be suspended for
STIPULATED MOTION TO SUSPEND
APPEAL AND REMAND TO THE
ADMINISTRATIVE AGENCY 3
approximately 45 days. The Paries assert that this amount of time wil provide suffcient
opportunity to address how the FERC Order affects the PUC's prior Orders that are the subject
of this appeaL.
PRAYER
In summary, the Paries respectfully request that the Court grant a suspension of this
appeaL. Granting the Motion wil allow: (1) the Commission to reconsider its Orders in light of
FERC's Order; and (2) the Paries an opportunity to discuss the possibilty of settling the entire
appeaL. Moreover, suspending the appeal will conserve judicial resources. Consequently, there
is good cause for the Cour to suspend the appeal and remand this matter to the PUC until the
PUC has completed its review on remand or until December 5,2011, pursuant to I.A.R. 13.2 and
13.3.
CERTIFICATE OF UNCONTESTED MOTION
The undersigned does hereby certify that he has contacted opposing counsels and is
authorized to represent that opposing counsels have no objection to this Motion, and joins in the
Stipulated Motion.
RESPECTFULL Y submitted on behalf of the Parties this 2. t~ay of October 201 1.
IDAHO PUBLIC UTILITIES COMMISSION
Donald L. Ho i, II
Deputy Attorney General
bls/O:PAC-E-II-01-05_Appeal_Stipulated Motion to Suspend Appeal_dh
STIPULATED MOTION TO SUSPEND
APPEAL AND REMAND TO THE
ADMINISTRATIVE AGENCY 4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I HAVE THIS 24th DAY OF OCTOBER 2011,
SERVED THE FOREGOING STIPULATED MOTION TO SUSPEND APPEAL AND
REMAND TO THE ADMINISTRATIVE AGENCY, IN SUPREME COURT DOCKET NO.
39134-2011, BY E-MAILING A COPY THEREOF TO THE FOLLOWING:
MARK C MOENCH
DANIEL E SOLANDER
ROCKY MOUNTAIN POWER
201 S. MAIN STREET, SUITE 2300
SALT LAKE CITY, UT 84111
E-MAIL: mark.moench($pacificorp.com
daniel.so lander($pacificorp.com
RICHAR HALL
WALTER SINCLAIR
STOEL RIVES LLP
101 S. CAPITOL BOULEVARD, SUITE 1900
BOISE, ID 83702-7705
E-MAIL: rrhall($stoel.com
jwsinclair($stoel.com
KENNETH E. KAUFMANN
LOVINGER KAUFMANN LLP
825 NE MUL TNOMAH, SUITE 925
PORTLAND, OR 97232-2150
E-MAIL: Kaufman($lklaw.com
RONALD L. WILLIAMS
WILLIAMS BRADBURY
1015 W. HAYS STREET
BOISE, ID 83702
E-MAIL: ron($willamsbradbury.com
LARRY F. EISENST AT
MICHAEL R. ENGLEMAN
DICKSTEIN SHAPIRO LLP
1825 EYE STREET, NW
WASHINGTON, DC 20006-5403
E-MAIL: eisenstatl($dicksteinshapiro.com
engleman~dicksteinshapiro.com
~~
SECRETARY