20130226Brief in Opposition to Appellant's Motion.pdf

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KRISTINE A. SASSER
DEPUTY ATTORNEY GENERAL
IDAHO PUBLIC UTILITIES COMMISSION
P0 BOX 83720
BOISE, ID 83720-0074
[phone]
IDAHO BAR NO. 6618
Attorney for the Respondent on Appeal,
Idaho Public Utilities Commission
21317EB26 FM I:27
UALJ UTUSrIES cOMMSSiO
IN THE SUPREME COURT OF THE STATE OF IDAHO
GROUSE CREEK WIND PARK, LLC and
GROUSE CREEK WIND PARK II, LLC,
Petitioners/Appellants,
LT
IDAHO PUBLIC UTILITIES COMMISSION,
Respondent-Respondent on Appeal,
and
IDAHO POWER COMPANY,
Respondent-Intervenor/Respondent
on Appeal.
SUPREME COURT
DOCKET NO. 39151-2011
IDAHO PUC'S BRIEF IN
OPPOSITION TO
APPELLANT'S MOTION TO
AUGMENT THE RECORD OR,
IN THE ALTERNATIVE,
MOTION TO AUGMENT
RECORD
Pursuant to Idaho Appellate Rule 30, the Idaho Public Utilities Commission
(Commission) respectfully moves this Court to deny the Motion to Augment the Appellate
Record filed with this Court by Grouse Creek Wind Park, LLC and Grouse Creek Wind Park II,
LLC (Grouse Creek) on February 12, 2013. The Commission's previous decision to exclude the
requested material from the appellate record (R. at 396) should be affirmed because the
IDAHO PUC'S BRIEF IN OPPOSITION TO
APPELLANT'S MOTION TO AUGMENT
THE RECORD OR, IN THE ALTERNATIVE,
MOTION TO AUGMENT RECORD 1
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requested material was not "considered by the [Commission] in the trial of the action or
proceeding." I.A.R. 28(c).
BACKGROUND
A.The Requested Material
Grouse Creek seeks, pursuant to Idaho Appellate Rule 30, to augment the appellate
record with an Affidavit of Counsel Gregory M. Adams' and two unserved "Complaints"
originally filed with the Commission in different proceedings on November 8, 2010. Grouse
Creek has acknowledged that "on November 19, 2010, Idaho Power and the [Grouse Creek]
Projects agreed to stay the complaint proceeding[s]. . . ." Exhibits to R. at 16 (emphasis added).
On November 29, 2010, Grouse Creek's previous counsel requested that the Commission "not
serve a summons on Idaho Power [regarding the two complaints] at this time. .. [because] we
have tentatively reached a settlement with Idaho Power. . . ." Atch. A (emphasis added).
Consequently, the Commission never served the two complaints (identified as IPC-E-10-29 and
IPC-E-10-30) on Idaho Power, never reached the merits of the unserved complaints, and never
issued any findings in the two proceedings.
B.Objections to the Record
The affidavit and its two unserved complaints initially comprised pages 1179 through
1203 of the Proposed Agency Record. On December 18, 2012, Idaho Power and the
Commission Staff each filed objections to the proposed record on appeal. R. at 377, 385.
Pursuant to I.A.R. 29(a) the Commission scheduled a hearing on the objections for January 9,
2013. R. at 390. On January 18, 2013, the Commission issued Order No. 32720 (R. at 393),
On January 22, 2013, Grouse Creek substituted new counsel (Williams Bradbury) for its previous counsel
(Richardson & O'Leary).
IDAHO PUC'S BRIEF IN OPPOSITION TO
APPELLANT'S MOTION TO AUGMENT
THE RECORD OR, IN THE ALTERNATIVE,
MOTION TO AUGMENT RECORD 2
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finding that counsel's affidavit and the two complaints should be removed from the record on
appeal. In particular, the Commission found that motions, answers, affidavits and similar filings
made by other parties in other proceedings unrelated to the consolidated cases presently on
appeal (IPC-E- 10-61 and IPC-E- 10-62) are outside the scope of the "additional documents"
contemplated by I.A.R. 28(c) for supplementing a record on appeal. R. at 396. The Commission
found that removal of pages 553 through 891 and 1179 through 1203 would provide a more
concise and relevant agency record. Id. Removal of the superfluous material is also consistent
with the directive provided by I.A.R. 28(a) that encourages parties to limit the record on appeal.
Id.
Grouse Creek now argues that "the 'filing of a meritorious complaint' against Idaho
Power is an important legal and factual issue in this case." Motion at 2. Grouse Creek further
maintains that "[n]either Idaho Power nor Commission Staff objected to or moved to strike the
Affidavit and Complaints from the record in this case." Id. at 4. Finally, Grouse Creek posits
that the Commission clearly considered - in the context of I.A.R. 28(c) - the Affidavit and
complaints because "[i]t said so, when it determined that the dates of the Complaints were
insufficient to establish that 'a legally enforceable obligation arose on or before November 8,
2010." Id
ARGUMENT IN OPPOSITION TO THE MOTION
The applicable text of I.A.R. 28(c) states, "Any party may request any written
document filed or lodged with the district court or agency to be included in the clerk's or
agency's record including, but not limited to. . ., statements or affidavits considered by the court
or administrative agency in the trial of the action or proceeding, or considered on any motion
made therein. . . ." (Emphasis added.) Grouse Creek's request to augment the record misstates
IDAHO PUC'S BRIEF IN OPPOSITION TO
APPELLANT'S MOTION TO AUGMENT
THE RECORD OR, IN THE ALTERNATIVE,
MOTION TO AUGMENT RECORD 3
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the underlying facts, misrepresents the Commission's findings and presumes conclusions that are
not a part of the underlying record in this case or any related cases involving Grouse Creek.
Moreover, the Motion to Augment does not meet the threshold required by the appellate rules.
The Motion should be denied for several reasons. First, the Commission has
previously found that the requested material was not considered by the Commission in its
decision-making in the consolidated cases on appeal. Grouse Creek argues that its complaints
were considered when the Commission "determined that the dates of the Complaints were
insufficient to establish that 'a legally enforceable obligation arose on or before November 8,
2010." Motion at 4. To the contrary, the Commission specifically found that "A determination
regarding whether and when a legally enforceable obligation arose - outside the specific contract
terms - was wholly unnecessary." R. at 358. The Commission acknowledged that the
complaints were filed by Grouse Creek on November 8, 2010, but dismissed any consideration
of the complaints because of Grouse Creek's decision not to pursue them. Id. at 360. The
substance of the complaints has not been considered, evaluated, weighed or ruled upon based on
Grouse Creek's request that the complaints not be served. To include the complaints in the
Record on Appeal after the Commission determined that the complaints were not considered
would be advantageous to Grouse Creek and prejudicial to Idaho Power and the Commission.
Grouse Creek should not be permitted to introduce documents from another case that were not
considered by the Commission in this proceeding. I.A.R. 28(c); Idaho Code § 61-629 ("No new
or additional evidence may be introduced in the Supreme Court, but the appeal shall be heard on
the record certified by it."); McNeal v. Idaho PUG, 142 Idaho 685, 688, 132 P.3d 442, 445
(2006).
IDAHO PUC'S BRIEF IN OPPOSITION TO
APPELLANT'S MOTION TO AUGMENT
THE RECORD OR, IN THE ALTERNATIVE,
MOTION TO AUGMENT RECORD 4
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Second, the premise of Grouse Creek's argument for inclusion of its complaints is
invalid. The complaints have not been deemed meritorious. Grouse Creek filed the complaints
with the Commission but immediately requested that the Commission not serve the complaints,
thereby suspending any action on the complaints. See Attachment A. Unprocessed complaints
amount to nothing more than an argument of the party - an argument that can be made during
briefing and oral argument in the present case. Additionally, because Grouse Creek instructed
the Commission to suspend any action on the complaints, Idaho Power was not provided with
any opportunity to defend itself against the allegations made against it by Grouse Creek in the
complaints. Therefore, inclusion of the unprocessed complaints operates as an unfair advantage
to Grouse Creek because it is representing unchallenged allegations in complaints as meritorious
facts in evidence. McNeal, 142 Idaho at 688, 132 P.3d at 445; Idaho Code § 61-629.
Third, Grouse Creek's argument that "[n]either Idaho Power nor Commission Staff
objected" to the inclusion of the affidavit and complaints is contrary to the underlying record.
Idaho Power objected to the inclusion of all documents not part of the record in this case. R. at
381; Settlement Tr. at 51, 11.10-11 (included as Atch. B). Idaho Power stated in its objection to
the proposed record that "Idaho Power objects to the inclusion of these separate [complaints] in
the Record on Appeal. . . ." R. 381. In addition, at the Commission's hearing to settle the record
on appeal - Idaho Power specifically "objected to inclusion of the materials from separate
Complaint dockets, which appear in [proposed record] Volume III, page 553 through page 574.
They also appear again in an Affidavit that was filed on remand in these contract approval cases
in Volume V, pages 1179 and 12[031." Settlement Tr. at 53 (emphasis added). It is clear that
Idaho Power's objection did include the complaints.
IDAHO PUC'S BRIEF IN OPPOSITION TO
APPELLANT'S MOTION TO AUGMENT
THE RECORD OR, IN THE ALTERNATIVE,
MOTION TO AUGMENT RECORD 5
For the foregoing reasons, Grouse Creek's Motion to Augment should not be granted
by the Court. The Commission, after hearing oral argument regarding the requested material,
determined that the two different complaints were irrelevant and inclusion of them was
unnecessary. The Commission found that removal of the complaints (and additional superfluous
material) from the Record provided a more concise and relevant record on appeal and is
consistent with the directives provided by the Court in Rule 28(a). R. at 396. Moreover, the
complaints were never served, they were never considered, and the merits of the complaints (if
any) have never been found. Indeed, the complaints have never been determined to be
meritorious. Idaho Code § 61-629.
MOTION TO AUGMENT IN THE ALTERNATIVE
If the Court grants the Motion to Augment then, in the alternative, the Commission
respectfully moves pursuant to Rule 30 that the Court also augment the record with two
documents. First, the Commission requests that the attached e-mail dated November 29, 2010,
from Grouse Creek's counsel (Peter Richardson) to the Commission's counsel (Kristine Sasser)
requesting that the complaints not be served upon Idaho Power be added to the record. See Atch.
A. Second, we request that the transcript from the Commission's hearing on settlement of the
record (pages 49-55, 58-59) be added to the record on appeal. See Atch. B.
Submitted on behalf of the Idaho Public Utilities Commission this 26th day of
February 2013.
2 cA -t4 2 J £1 iw
KRISTINE A. SASSER
Deputy Attorney General
Attorney for Respondent on Appeal,
Idaho Public Utilities Commission
IDAHO PUC'S BRIEF IN OPPOSITION TO
APPELLANT'S MOTION TO AUGMENT
THE RECORD OR, IN THE ALTERNATIVE,
MOTION TO AUGMENT RECORD 6
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY THAT I HAVE THIS 26" DAY OF FEBRUARY 2013,
SERVED THE FOREGOING IDAHO PUC'S BRIEF IN OPPOSITION TO
APPELLANT'S MOTION TO AUGMENT THE RECORD OR, IN THE
ALTERNATIVE, MOTION TO AUGMENT RECORD, IN SUPREME COURT DOCKET
NO. 39134-2011, IPUC CASE NOS. IPC-E-10-61 AND IPC-E-10-62 BY E-MAILING A
COPY THEREOF TO THE FOLLOWING:
DONOVAN E. WALKER
IDAHO POWER COMPANY
P0 BOX 70
BOISE ID 83707-0070
E-MAIL: [e-mail]
RONALD L. WILLIAMS
WILLIAMS BRADBURY, P.C.
1015 W. HAYS STREET
BOISE, ID 83702
E-MAIL: [e-mail]
f&(uLL'
SECRETARY
0
.

.
Xan Allen
From: Kris Sasser
Sent: Monday, November 29, 2010 10:51 AM
To: Xan Allen
Subject: FW: Grouse Creek Complaint Dockets 210 NOV 29 tiLI: 52
IDAH(,r UTILITIES OMMlS10t
Xan-
Could you please include this email in the record for the IPC-E-10-29 and 10-30 case? Thank you.
Kris
From: Peter Richardson fmailto:oeterrichardsonandolearv.com1
Sent: Monday, November 29, 2010 10:46 AM
To: Kris Sasser
Cc: Walker, Donovan; Greg Adams; Allphin, Randy
Subject: Grouse Creek Complaint Dockets
Kris, as we discussed this morning on the telephone, we have tentatively reached a settlement with
Idaho Power and respectfully request that the Commission not serve a summons on Idaho Power at this
time. We believe we will have a final settlement within approximately two to three weeks and we will
at that time formally request a dismissal that would be contingent upon Commission approval of the
final settlement agreement and power purchase agreement. Please reference Docket Nos. 1PC-E-10-29
and IPC-E-10-30.
Peter Richardson
Richardson & O'Leary
515 N. 27th Street
Boise, Idaho 83702
[phone]
ATTACHMENT A
DOCKET NO. 39151-2011
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I
al BEFORE. THE IDAHO PUBLIC UTILITIES COMMISSION
GROUSE CREEK WIND PARK, LLC, and ) SUPREME COURT
GROUSE CREEK WIND PARK II, LLC, ) DOCKET NO.
39151-2011
Petitioner-Appellant,
V .
IDAHO PUBLIC UTILITIES COMMISSION, ORAL ARGUMENT
Respondent-Respondent on Appeal,
and
IDAHO POWER COMPANY,
Respondent -Intervenor/Respondent
on Appeal.
S HEARING BEFORE
COMMISSIONER MACK A. REDFORD (PRESIDING)
COMMISSIONER PAUL KJELLANDER
COMMISSIONER MARSHA H. SMITH
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01r" M
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CA
PLACE: Commission Hearing Room
472 West Washington Street
Boise, Idaho
DATE: January 9, 2013
VOLUME II - Pages 45 - 61
HEDRICK .
COURT REPORTING
POST OFFICE BOX 578
BOISE, IDAHO 83701
208-336-9208
ATTACHMENT B
DOCKET NO. 39151-2011
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.
1 APPEARANCES
2

3 For the Staff: KRISTINE A. SASSER, Esq.
Deputy Attorney General

4 472 West Washington
Boise, Idaho 83702
5
For Idaho Power Company: DONOVAN E. WALKER, Esq.

6 and JULIA A. HILTON, Esq.
Idaho Power Company

7 1221 West Idaho Street
Boise, Idaho 83702
8
For Grouse Creek Wind Park: Richardson& O'Leary, PLLC

9 by GREGORY M. ADAMS, Esq.
and PETER J. RICHARDSON, Esq.

10 515 North 27th Street
Boise, Idaho 83702
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BOISE, IDAHO, WEDNESDAY, JANUARY 9, 2013, 9:31 A.M.
COMMISSIONER REDFORD: Let's go on the record.
Good morning, ladies and gentlemen. This is a hearing
scheduled for this date, January 9, 2013, at 9:30 o'clock a.m.
at the Public Utilities Commission headquarters in Boise. This
hearing is in the matter of Grouse Creek Wind Park, LLC, and
Grouse Creek Wind Park II, LLC, versus the Idaho Public
Utilities Commission and Idaho Power. These cases are on
appeal to the Idaho Supreme Court in Supreme Court Docket No.
39151-2011. These two cases were consolidated in this Supreme
Court case. The Idaho Public Utilities Commission Case Nos.
are IPC-E-10-61 and IPC-E-10-62.
There being -- there is a quorum present. All
Commissioners are in attendance.
The purpose for this hearing is to settle the
record on appeal. In its appeal, Petitioner-Appellant
requested certain documents originating before the Commission
to be included in the record on appeal. The Idaho Public.
Utilities Staff and Idaho Power have objected to certain
documents that are requested to be included in the record.
Idaho Appellate Rules 29(a) and (b) govern these
proceedings and give the Idaho Public Utilities Commission
authority to settle the record to be sent to the Idaho Supreme
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1 Court.
2 On the 21st day of December, 2012, the Idaho
3 Public Utilities Commission, in Order No. 32702, issued its
4 Notice of Hearing in this matter.
5 If you will please identify yourself for the
6 record, starting with you, Mr. Adams.
7 MR. ADAMS: This is Greg Adams, on behalf of
8 Grouse Creek Wind Parks, and I have with me at the table here
9 Peter Richardson. And I believe Christine Mikell and
10 Andrew Fales from the wind projects may be calling in; I'm not
11 sure if they've gotten through.
12 COMMISSIONER REDFORD: Okay. Mr. Walker.
.
13 MR. WALKER: Thank you, Mr. Chairman. Donovan
14 Walker and Julia Hilton, on behalf of Idaho Power.
15 MS. SASSER: Kristine Sasser, representing
16 Commission Staff.
17 COMMISSIONER REDFORD: Okay. Are there any.
18 preliminary matters that need to be taken up before we start
19 into the oral argument on this case?
20 Hearing none, we'll start with you, Ms. Sasser,
21 as you and -- for the Commission Staff and then to Mr. Walker
22 for Idaho Power, as you are the moving parties.
23 MS. SASSER: Thank you, Chairman Redford,
24 Commissioners.
S 25 Staff objects to the inclusion of any and all
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documents produced, submitted, or issued as part of the
GNR-E-10-04 case and GNR-E-11-01 case. The cases have been
fully and finally decided by this Commission, no parties
appealed, and the time for appeal on those cases has long since
expired. And inclusion of these cases in the record confuses
the issues and it subjects the final Decisions of this
Commission to collateral attack on the cases as they are
presented and the material assets presented to the Supreme
Court.
To the extent that any of the material in these
cases might be relevant to the Decision in the Grouse Creek
matter, it's already a part of the agency's record in this case
on appeal. It's part of the final Orders in the Grouse Creek
matter on the original final Order, the final Order on
Reconsideration, and the Order on Reconsideration on Remand in
the 10-61 and 10-62 case to the extent that any of the material
from the generic dockets is relevant to the Decisions in this
particular matter currently in front of the Commission.
Also, while Idaho Appellate Rule 28(c) allows for
the inclusion of additional documents beyond the standard
record, the Rule specifically states -- and it's page 620 in
the Court Rules book. Idaho Appellate Rule 28(c), about
two-thirds of the way down, in talking about additional
documents that can be added to the record on appeal, states:
Not limited to written requested jury
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instructions, written jury instructions given by the court,
depositions, briefs, statements or affidavits considered by the
Court or administrative agency in the trial of the action or
proceeding, or considered on any motion made therein, and
memorandum opinions or decisions of a court or administrative
Now, as Mr. Richardson has requested, Affidavits,
Motions, Answers, additional documents, I believe that that
request is clearly outside the Rule for additional documents on
appeal to the Supreme Court. I think that the Rule includes
the Decisions made from the administrative agency which would
be the final Orders in the case, but clearly any of the
additional documents filed by NIPPC and any other parties is
not included in that language from the Rule.
I also believe that if Mr. Richardson would have
wanted the arguments from other parties in other cases to be
included and a part of the record and necessary on appeal for
the Grouse Creek matter, then those are arguments that he
should have included in the underlying case in this matter.
Removal of the irrelevant, unnecessary, and
duplicative material would substantially reduce the size of an
already substantial record. It would reduce the size of the
record by 315 pages, as proposed by Commission Staff. What's
more, it would allow the Supreme Court to focus on the real
issues in the Grouse Creek matter, which are narrowly tailored
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to the final Orders in this case and the issues that are
discussed in the underlying matter in this case.
And as a final note, I would also point out that
to be consistent with what the Court Rules are that the Supreme
Court puts in front of us and requests of us as parties and
agencies, Rule 28(a) of the Idaho Appellate Rules, when it
speaks about designation of record, the last sentence in Rule
28(a) of the Idaho Appellate Rules says: Parties are
encouraged to designate a clerk's or agency's record more
limited than the standard record.
Clearly in this case we not only have the
standard record, but we have more than 300 additional pages
that are really unnecessary to appeal the legitimate and
necessary issues in this case.
And that's all I have. I open it up for
questions.
COMMISSIONER REDFORD: Any questions from the
Commissioners?
Hearing none, we'll move on to Mr. Walker.
MR. WALKER: Thank you, Mr. Chairman. And thank
you, Ms. Sasser.
Idaho Power agrees and objected to the same
documents referenced by Commission Staff, those being the
documents from the two GNR cases: GNR-E--10-04 and GNR-E- -- is
it 11 -- 11-01. And Idaho Power had a somewhat more expansive
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objection than Staff in that Idaho Power objects up front to
the inclusion of documents from any case that is not the case
that is on appeal presently in front of the Court.
It's a fundamental premise of appellate procedure•
and the standards of review of this Commission's Decisions that
the review of any particular case is done on the record of that
case. It's not done on the record of other cases, it's not
done considering the arguments or documents or issues from
other matters. It's done on the record for this case, and
that's it.
I think Idaho Power -- it's Idaho Power's
position that not only as argued by Commission Staff as a
duplicative or not necessary or cause confusion in the record
or undue amount of documents, but it's entirely improper to
have an opportunity to argue about and discuss and possibly
back-door challenge issues or items from other cases that have
their Own final Orders, their own determinations that are not
subject to appeal in this matter, that are the law of the case,
the law of this Commission, and not subject to argument and
challenge in the course of this case, they are to be accepted.
And to that matter, citation to Commission Orders
or other authority can be done in legal briefings and arguments
without the necessity of including those case dockets and those
records at this body in the record on appeal for an entirely
separate matter.
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1 And as referenced by Commission Staff, once we
2 look a little closer at the specific documents requested, not
3 only is it improper because they're from different cases, but
4 several of them concern entirely different parties; i.e., not
5 Grouse Creek or these projects that are the subject matter of
6 this case.
7 At the end of the day, we have a system with
8 appellate review that vests the authority back to the trier of
9 fact, be that this Commission or a court of law, as the final
10 determination on what is contained in the record that was
11 before you that you utilized to make your Decision in the case.
12 And that's why we're here today. Regardless of what any three
13 of us may argue, it's up to you to determine what was relevant,
14 what's part of this case record, and what you relied upon in
15 reaching the Decisions for this case; not the Decisions in a
16 GNR case or in any other matter, but for this matter.
17 And to be specific, Idaho Power objects to
18 everything designated in the record that originates from other
19 cases besides IPC-E-10--61 and IPC-E-10-62, which are the two
20 Grouse Creek matters. Those are found in the proposed agency
21 record on appeal, Volume III, page 553, through Volume IV,
22 page 891, we ask be stricken from the record on appeal.
23 COMMISSIONER REDFORD: Mr. Adams.
24 MR. ADAMS: Thank you for the opportunity to
[1 25 respond.
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I think I'm first going to provide a little bit
of context for why we requested to have this material in the
record, bearing in mind that it was a while ago that we did it
and having -- the original Notice of Appeal was filed back in
September of 2011. So it's -- we -- in looking at the record
again, the amended Notice of Appeal, I think we're going to be
able to stipulate to have some of this material removed if
Idaho Power and the Commission would be willing to stipulate in
exchange for concessions not to add materials from these other
cases themselves.
So there's basically two different categories of
material that are in issue: There's the material from the
generic docket -- the two generic dockets, and then there's
also the material from the Complaint case. I'll start with the
generic docket materials from GNR-E-10-04 and GNR-E-11-01.
You know, first, in defense of our initial
request to include this material in the record, much of this
material is, in fact, referenced in Pleadings in this case.
Idaho Power's Application to approve the PPAs and their
comments asking to have the PPAs rejected directly stated that
Idaho Power incorporated by reference materials from the
GNR-E-10-04 proceeding, and also the NIPPC comments were
referenced in the Grouse Creek comments and discussed. And
that was our thinking when we included those in the record.
However, in reviewing the amended Notice of
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Appeal and the objections, we would be willing to stipulate to
remove the materials in Volume III, page 575, to Volume IV,
page 891. That's the entirety of what they requested to have
removed from those generic dockets. We would stipulate to do
that in exchange for agreement that Idaho Power and the
Commission are not going to move to augment the record with any
materials from those dockets at a later point in time during
the appeal. That was our concern and why we included material
from those dockets.
With regard to the Complaint dockets, the
Complaints actually appear twice in the record. Idaho Power
has objected to inclusion of the materials from the separate
Complaint dockets, which appear in Volume III, page 553 through
page 574. They also appear again in an Affidavit that was
filed on remand in these contract approval cases in Volume V,
pages 1179 and 12 dash oh three.
As we understand it, there's no objection to
inclusion of the second reference in Volume V. The Complaints
are obviously relevant to the issues on appeal;. I don't think
that's disputed. So, you know, we would stipulate to removal
of the documents from the separate Complaint dockets in
Volume III, page 553 through page 574, so long as we get
confirmation that the other place where the Complaints exist in
the record in Volume V, 1179 to 1203, will not be removed from
the Appellate record. And those -- that's an Affidavit of
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HEDRICK COURT REPORTING ARGUMENT
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1 Counsel that was filed during the remand proceedings.
2 So, with that --
3 COMMISSIONER REDFORD: What was that last,
4 Volume V, what were those numbers?
5 MR. ADAMS: It was numbers 1179 to 1203.
6 • So hopefully with that, that makes resolution of
7 this hearing pretty simple, and we can answer any questions the
8 Commissioners may have.
9 COMMISSIONER REDFORD: Any questions?
10 COMMISSIONER SMITH: No.
11 COMMISSIONER REDFORD: Just so I can be clear,
12 you would -- you agree that documents 575 through 891 can be
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13 removed.
14 MR. ADAMS: It's -- well, the complete,
15 everything is Volume III, 553, through Volume IV, 891. And we
16 would agree to that if there is agreement that no other
17 documents from GNR-E-10-04 and GNR-E-11-01 will later be
18 submitted into the appellate record through a Motion to Augment
19 under Idaho Appellate Rule 30 or otherwise; because once this
20 record is settled, the timeline is set for us to file our
21 brief, and we don't -- we anticipated that material being.
22 submitted into the record, so we're fine with having it all
23 removed and we agree it's not relevant.
24 COMMISSIONER REDFORD: Have you spoken with the
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1 MR. ADAMS: No, we didn't. The hearing was set
2 so quickly, we decided to just address it at the hearing here.
3 COMMISSIONER SMITH: Should we give them a few
4 minutes to talk about it.
5 COMMISSIONER REDFORD: Yes. Why don't we go off
6 the record for a few minutes, and maybe you can get together
7 and see if you can come up with a Stipulation.
8 Okay, we'll be in recess.
9 (Recess.)
10 COMMISSIONER REDFORD: Okay, let's go back on the
11 record.
12 MS. SASSER: Get Grouse Creek.
13 COMMISSIONER SMITH: Hang on.
14 COMMISSIONER REDFORD: Okay, we're on the record.
15 Mr. Adams, have you resolved your differences
16 with Staff and Idaho Power?
17 MR. ADAMS: I think -- I don't think we were able
18 to. I think that Idaho Power didn't want to stipulate to not
19 adding materials from these other dockets at a future time.
20 So, you know, we're not in a position to waive,-- to stipulate
21 to have it removed and thereby waive our right to request
22 having any of this other material included at a later date.
23 COMMISSIONER SMITH: So -- I have a question.
24 COMMISSIONER REDFORD: Ms. Smith.
S 25 COMMISSIONER SMITH: So I was kind of curious
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about what you would see the difference between, you know, your
Stipulation kind of format and just the regular format where
people file their briefs and cite to stuff, be it legal
precedent or Commission Orders, which I think happens all the
time, even to stuff that's not in the official record.
MR. ADAMS: Well, I think -- I think we're in
agreement that the Orders don't need to be in the record to be
cited to the Court, Commissioner Smith.
COMMISSIONER SMITH: Okay.
MR. ADAMS: So, you know, the concern is more the
other materials that were filed by other parties in the docket.
COMMISSIONER SMITH: So you think that if -- that
there's a possibility that if the Commission chooses not to
have this material in the record and you don't have any
agreement, they are going to come along later and say, Please
add this to the record.
MR. ADAMS: That's our only concern.
COMMISSIONER SMITH: Okay1 Thank you.
COMMISSIONER REDFORD: Any questions?
COMMISSIONER KJELLANDER: No.
COMMISSIONER REDFORD: Any further questions?
COMMISSIONER SMITH: Yeah. Yeah.
So if they did do that, would they be coming to
us or would they be coming to the Supreme Court?
MR. ADAMS: They would be going to the Supreme
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1 Court under a Motion to augment the record.
2 COMMISSIONER SMITH: Aha. I see.
3 MR. ADAMS: And our concern is also with the
4 timing --
5 (Telephone sounds.)
6 MR. ADAMS: -- how that would play out.
7 COMMISSIONER SMITH: Tell, them they're late.
8 COMMISSIONER KJELLANDER: Just don't talk. Just
9 hang up.
10 COMMISSIONER SMITH: So if that happens again,
'I you have to push this button right there.
12 Thank you, Mr. Chairman. Those are all my
S 13 questions.
14 (Telephone sounds.)
15 COMMISSIONER REDFORD: This button?
16 COMMISSIONER SMITH: No, the bottom, that one.
17 COMMISSIONER REDFORD: Hello.
18 MS. MIKELL: Hello. Hello?
19 COMMISSIONER REDFORD: Who am I speaking to?
20 MS. MIKELL: This is Christine Mikell from
21 Wasatch Wind, trying to call in to the hearing.
22 COMMISSIONER REDFORD: Okay, you're on the
23 hearing. Would you please mute your phone so that we don't get
24 anything from your end.
[IJ
25 MS. MIKELL: Sure, I'd be happy to. Going on
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mute. Thank you.
COMMISSIONER REDFORD: Thank you.
Is there anything further that the parties want
to discuss?
MR. ADAMS: Commissioner Redford, yes, just one
more thing.
I would like to clarify on the record that
there's been no objection to inclusion of the Complaints that
were filed with -- in the remand proceedings, in Volume V,
pages 1179 to page 1203, so that regardless of what the
Commission decides with regard to the material from the other
dockets, that that material will remain in the appellate
record.
COMMISSIONER REDFORD: What's that? What are
they again?
MR. ADAMS: It's Volume V, pages 1179 to 1203.
COMMISSIONER REDFORD: Okay. Well, if there's
nothing further to come before the Commission --
MR. WALKER: Mr. Chairman.
COMMISSIONER REDFORD: Yes.
MR. WALKER: I have a quick point relevant to
what Mr. Adams just referenced.
Idaho Power did reference on page 5 of its Motion
what Mr. Adams refers to is his own Affidavit in the 10-61 and
10-62 cases that he submitted that attached copies of the
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Complaints from the other matters, and what Idaho Power said in
its written materials was exactly what I said in argument:
That to the extent that the Commission determines it relied on
any of those materials, then it should determine that they're
part of the record.
COMMISSIONER REDFORD: Which were those again?
What's the page numbers of those Affidavits? Do you have them?
• MR. WALKER: They're from Volume V. I don't have
the exact page number reference. I can look it up if you --
COMMISSIONER REDFORD: But it's an Affidavit of
Mr. Adams.
MR. WALKER. Yes. I believe it starts on 1179.
COMMISSIONER SMITH: And goes to 1203.
MR. ADAMS: That's correct. And when Mr. Walker
is done, I can direct the Commission to where that was actually
cited in the Orders.
MR. WALKER: And that's not necessary, because
I will agree that upon my review of the Order on Remand this
morning, I did see the Commission's own reference to the
Complaint and the fact that a summons was not issued in its
Orders in the 10-61 and 10-62 cases.
COMMISSIONER REDFORD: Anything else anyone has
to offer?
Well, hearing no other explanations or argument,
the Commission will take this under consideration and in due
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And so we'll go off the record at this time.
(The hearing adjourned at 10:02 a.m.)
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AUTHENTICATION
This is to certify that the foregoing is a
true and correct transcript to the best of my ability of the
proceedings held in the matter of Grouse Creek Wind Park, LLC,
and Grouse Creek Wind Park II, LLC, Petitioners/Appellants, vs
Idaho Public Utilities Commission, Respondent-Respondent on
Appeal, and Idaho Power Company, Respondent-Intervenor/
Respondent on Appeal, Supreme Court Docket No. 39151-2011,
commencing on Wednesday, January 9, 2013, at the Commission
Hearing Room, 472 West Washington, Boise, Idaho, and the
original thereof for the file of the Commission.
WENDY J. MURRAYT/'N$tafy Public
in and for the Sete of Idaho,
residing at Meridian, Idaho.
My Commission expires 2-8-2014.
Idaho CSR No. 475
..'.ADY A
SLIC
ID
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