20180413Appellant Brief.pdf

RECTIVED
IiltS Api? l3 f,t{ 9: &0
IN TEE SUPREME COURT OF TEB STATE OF IDAHO .i ;. .' , J.
'
i1iJ$516*
IDAHO POWERCOMPANY,
Appllcant-Respondent,
v.
KIKI LESLIE A. TIDWELL,
Intervenor-Appellant,
and
IDAEO PUBLIC UTILITIES COMIVIISSrON,
Respondent.
DOCKETNO.4s644-2018
APPELLAI\TT'S BRIEF
Appeal &om Idaho Public Utilities Commission
Commissioner Eric Anderson, presiding
Samuel L. Linnet
Linnet Law Office, PLLC
I 15 Second Avenue South
Hailey,ID 83333
[e-mail]
Attorrrey for Intenenor-Appellant Kiki
Leslie A. Tidwell
Donovan E. Walker
Idatro Power Company
l22l West Idaho (83702)
P.O. Box 70
Boise,ID 83707
Attorney for Applicrnt-Respondent Idaho
Power Company
Lawrence G. Wasden
Attomey General
Camille Christen
Deputy Attorney General
Idaho Public Utilities Commission
P.O. Box 83720
Boise, ID 83720-0074
Attomeys for Respondent ldaho Publlc
Utilides Commission
TABLE OF CONTENTS
I.STATEMENT OF THE CASE
A. Nature of the Case.................
I
I
I
2
5
6
6
B. Course of Proceedings and Disposition
C. Statement of Facts...
II. ISSUES PR-ESENTED ON APPEAL..
III STAI\DARD OF REVIEW
.A.RGUMENT.............IV
A. IPUC failed to provide adequate notice to all parties that intervenor funding requests
were due on August 22,2017. ................ 6
B. IPUC's denial of Appellant's intervenor funding request based solely on timing is
arbitrary, capricious, and an abuse of discretion because the IPUC has previously
awarded intervenor funding to late applicants. ..........9
C. IPUC violated Idaho Code $ 6l-617 A because it denied Ms. Tidwell's application
solely based on timing.t2
D. The August 8,2017 evidentiary hearing was not "the last evidentiary hearing in a
proceeding or the deadline for submitting briefs, proposed orders, or statements of
position," under Rule 164. ...........13
E. Rule 164 is unconstitutional for reason of vagueness.........,....... .............. l4
F. Ms. Tidwell is entitled to an award of attorney fees on appeal.l6
l. This Case Satisfies the Requirements of the Private Attorney General Exception
to the American Rule on Attorney Fees.....17
2. Idaho Code $ l2-ll7 is an appropriate basis for an award of attomey fees because
the IPUC's actions were arbitrary, capricious, and an abuse of discretion................. 18
3. Idaho Code $ 6l-617A is an appropriate basis for an award of attomey fees
because Ms. Tidwell meets the substantive requirements for such an award............. 19
4. Ms. Tidwell seeks an award of attorney fees under Idaho Appellate Rule 40......20
V. CONCLUSION
Appellant's Brief - i
20
TABLE OF CASES AND AUTHORITIES
Cases
Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,374 (1998) ............... l7
Building Contractors Assn. of Southwestern Idaho v. Idaho Public Utilities Comm'n., l5l Idaho
to, 2s3 P.3d 684 (201 r ) ...16
Enterprise, Inc. v. Nampa City, 96 Idaho 734, 739,536P.2d729,734 (1975). .. 10, 12
Fed. Commc'n Comm'n v. Fox Television Stations, lnc., 127 S. Ct. I 800, l8l l, 556 U.S. 502,
Hellar v. Cenamrs a, 106 Idaho 57 l, 57 7 -7 8, 682 P .2d 524, 530-31 (1 984)........
passim
,.'.',17
Idaho Fair Share v. Idaho Public Utilities Comm'n, 113 Idaho 959,751 P.2d 107 (Idaho)........... 6
J.R Simplot Co., Inc. v. Idaho State Tax Comm'n, 120 Idaho 849,862,820P.2d 1206,1219
5ls (200e)
(leel)........6
Judulang v. Holder, 132 S. Ct. 476, 484 (201I ) ............... ...................... l7
Lane Ranch Partnership v. City of Sun Valley ("Lane Ranch [I"), 145 Idaho 87, 91, 175 P.3d
776,780 QOAT)10,12
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. lns. Co.,463 U.S. 29, 43 (1983),....... 10, l3
Neighbors for a Healthy Gold Fork v. Valley County, 145 Idaho l2l, 138, 176 P.3d 126,143
(2007)................,... l9
,,..,..,.'.,.7,9State v. Gibbs, 94 Idaho 908,914, 500 P.2d 209 (1972)
State, Dept. of Law Enforcement v. Engberg, 109 Idaho 530, 533, 708P.2d 935 (App. 1985)....9
Washington Water Power Co. v. Idaho Public Utilities Commission, l0l Idaho 567, 579,617
p.zd 1242,1254 (1980). ........ 10, I r
Statutes
Idaho Code $ l2-l I7 , 17,19
passimIdaho Code $ 6l-617A'.
Other Authorities
Idaho Administrative Law: A Primerfor Students and Practitioners,Sl ldaho Law Review 421,
443-444 (2015)....... .................... r0
Michael S. Gilmore & Dale D. Goble, The ldaho Administrative Procedttre Act: A Primerfor the
Practitioner, 30 Idaho L. Rev. 273, 365 (1993)......l3
Rules
rDAPA 31.01.01.016.01
IDAPA 31.01.01 .164 ....
IDAPA 31.0t.01 .252 ....
IDAPA 31.01.01 .zss ....
7,8,9
passim
....... l6
. 13, l6
Appellant's Brief - ii
I. STATEMENT OF THE CASE
A. Nature of the Case
This is an appeal of Order No. 33928 Final Order Denying Reconsideration ("Final
Order") in Idaho Public Utilities Commission Case No. IPC-E-16-28, issued by the Idaho Public
Utilities Commission ("IPUC") on November 17,2017. The Final Order denied Ms. Tidwell's
petition for reconsideration concerning an award of interuenor funding. Intervenor funding
awards are provided for under Idaho Code $ 6l -6 I 7A. However, the IPCU denied Ms. Tidwell's
request for intervenor funding because it was received after August22,2017. Ms. Tidwell
contends that the agency failed to properly notice the August 22,2017 deadline, and that the
administrative rule governing intervenor funding requests is arbitrary, capricious, and an abuse
of discretion, in addition to being unconstitutionally vague. This appeal seeks an award of
attomey fees and clarification of administrative law questions related to intervenor funding
requests.
B. Course of Proceedings and Disposition
On December 5, 2016, Kiki Leslie A, Tidwell ("Ms.Tidwell") petitioned to intervene in
Idaho Power's Applicationfor Certificate of Public Convenience and Necessityfor Wood River
Valley in IPUC Case No. IPC-E-16-28. Ms. Tidwell was the first intervenor in this case.
Between November 29 , zArc and June 27 , 2017 , the IPUC published eleven notices or orders
that were available to intervenors. On August 8,2017, the IPUC held a technical hearing that
was scheduled to continue on August 9,2017, if needed. R. vol. l,pp.77-78.
Appellant's Brief - I
On September 15, 2017,the IPUC granted Idaho Power's Certificate of Public
Convenience and Necessity (CPCN) and awarded intervenor funding to the Sierra Club in Order
No. 33872. R. vol. I, pp. 143-160. September 15,2017 was the first time Ms. Tidwell was aware
that intervenor funding requests were available to intervenors and that the time to apply for
intervenor funding requests had passed.
On September 16,2017, Ms. Tidwell filed an intervenor funding request with the IPUC.
R. vol. l, pp. 164-174. On October 12,2017, the IPUC denied Ms. Tidwell's request in Order
No. 33906. R. vol. I, pp. 175-177. Ms. Tidwell filed a petition for reconsideration on October 23,
2017. R. vol. I, pp. 178-l79.The IPUC denied Ms. Tidwell's petition for reconsideration on
November 17,2017 in OrderNo. 33928. R. vol. I, pp. 180-182. This appeal was filed with the
IPUC on December 27,2017. R. vol. I, pp. 183-188.
C. Statement of Facts
IPUC Case No. IPC'E-I6-28 began on November 28,2016 and the final order was issued
on Novemb er 17 , 2Al7 . ln the almost year long process of this case, the IPUC never provided
written notice of Rule 164, its requirements, or the August 22,2017 deadline for intervenor
funding requests. The only notice of the August 22,2017 deadline that was provided to
intervenors was a one sentence, oral proclamation by Commissioner Anderson at the August 8,
2017 evidentiary hearing where he said, "Intervenor funding requests under Rule 164 are due l4
days from today." R. vol. II, p. 686. This statement is only reflected in the transcript of the
August 8,2017 evidentiary hearing, which was unavailable to intervenors. Othenwise, if a party
was to look back through the official record, Commissioner Anderson's determination that
Appellant's Brief - 2
intervenor funding requests were due 14 days from August 8, 2017 cannot be found, nor can it be
reconstructed.
Ms. Tidwell attended all of the IPUC hearings. Specifrcally, she attended the August 8,
2017 evidentiary hearing, which was scheduled to continue the following day. While the August
8,2017 transcript states that Commissioner Anderson gave oral notice of the Rule 164 deadline,
the record does not establish that Ms. Tidwell heard that announcement. R. vol. II, p. 686. In
fact, Ms. Tidwell did not hear Commissioner's Anderson's oral pronouncement that intervenor
funding requests were due l4 days from the August 8,2017 evidentiary hearing. R. vol. I, p. I 79.
The announcement of the deadline by Commissioner Anderson was made just moments before
5:27 PM, after an all day long hearing. Tellingly, Commissioner Anderson described his sole
comment about Rule 164 as a "little housekeeping thing[]." R. vol. II, p. 686. The legal right and
opportunity to request $ 18,538.47 in intervenor funding is not a little housekeeping thing.
On September 15, 2017, Ms. Tidwell received the first notice that intervenor funding
requests were due on August 22,2017 when Order No. 33872, which awarded intervenor
funding to the Sierra Club, was received in the mail. R. vol. I, pp. 143-160. Prior to September
15, 2017, Ms. Tidwell was unaware of the intervenor funding availability. Ms. Tidwell submitted
her application for intervenor funding one day after receiving IPUC Order No. 33872, which was
the first time Ms. Tidwell was aware of the availability and deadline for intervenor funding. Ms.
Tidwell was unaware of the opportunity to apply for intervenor funding, and Order No. 33872
was the first notice she received indicating the availability and deadline for intervenor funding
requests.
Appellant's Brief - 3
Ms. Tidwell's application for intervenor funding acknowledges that it was submitted late
per the IPUC's August 22,2017 deadline, and it tries to reasonably explain the tardiness; her
initial application was a good-faith attempt at cooperation and acceptance of the agency's
deadline. R. vol. I, pp. 164-165, 178-179. Ms. Tidwell hoped that by acting in good-faith, the
IPUC would use its discretion to award her late intervenor funding request as it had previously
done in IPUC Case No. IPC-E-17-03. Unfortunately for Ms. Tidwell, the IPUC denied her
application without ever considering whether she met the relevant factors under Idaho Code $
6 I -61 7A, and they used her good-faith attempt at fixing this procedural error as justification to
deny her request. R. vol. l, pp.l75-177, I 80-182.
The IPUC denied Ms. Tidwell's request solely because it was received after the purported
August 22, 2017 deadline for intervenor funding requests. R. vol. I, pp. I 80- I 82. The denial was
based on Idaho Administrative Procedure Act Rules 3l.01 .0l.l6l-165, which provide procedural
rules for intervenor funding requests. Specifically, IDAPA 3l .01 .01 .164 (Rule 164) states:
Unless otherwise provided by order, an intervenor requesting intervenor funding
must apply no later than fourteen (la) days after the last evidentiary hearing in a
proceeding or the deadline for submitting briefs, proposed orders, or statements of
position, whichever is last. Motions in opposition to intervenor funding must be
filed within fourteen (14) days after the request for intervenor funding is filed.
Rule 164 is the heart of this appeal because it was the legal justification for denying Ms.
Tidwell's request for intervenor funding.
The IPUC did not provide adequate notice to intervening parties that August 22,
2017 was the deadline for intervenor funding applications under Rule 164. Similarly, the
IPUC failed to give proper notice to intervenors that any of the other triggering events
Appellant's Brief - 4
provided for in Rule 164 had occuned. As explained below, without the IPUC making a
determination that Rule 164 is in effect, it is impossible for intervenors to accurately
determine the correct intervenor funding request due date. As written, Rule t 64 requires a
determination by the IPUC that its l4-day deadline is in effect.
Ms. Tidwell's argument, therefore, relies on the fact that the August 22,2017 deadline
for intervenor funding applications was not noticed in writing, and that her application for
intervenor funding was denied solely on the basis of the August 22,2017 deadline.
II. ISSUES PRESENTED ON APPEAL
Ms. Tidwell presents the following issues on appeal:
l. Whether the IPUC failed to provide adequate notice to all parties that intervenor
funding requests were due on August 22,2017.
2. Whether the IPUC's denial of Appellant's intervenor funding request based solely
on timing is arbitrary, capricious, and an abuse of discretion because the IPUC
previously awarded intervenor funding to late applicants.
3. Whether the IPUC violated Idaho Code $ 6l-617A because it denied Ms.
Tidwell's application solely based on timing.
4. Whether the August 8,2017 was "the last evidentiary hearing in a proceeding or
the deadline for submitting briefs, proposed orders, or statements of position,"
under Rule 164.
5. Whether Rule 164 is unconstitutional for reason of vagueness.
6. Whether Ms. Tidwell is entitled to an award of attorney fees.
Appellant's Brief - 5
IIL STAI{DARD OF REVIEW
The Commission is authorized to award intervenor funding requests pursuant to statute.
The Supreme Court employs an abuse of discretion standard in reviewing such decisions. Idaho
Fair Share v. Idaho Public Utilities Comm'n, I l3 Idaho 959,751P.2d 107 (1988), rev'd on other
grounds. J.R Simplot Co., Inc. v. Idaho State Tax Comm'n, 120 Idaho 849, 862,820 P .2d 1206,
l2l9 (1991} "The wording of I.C. $ 6l -617A makes it evident that the Commission is vested
with the discretion to award attorney's fees and costs... The decision of the adjudicating body
awarding fees will not be overturned absent an abuse of discretion." Id. at963,751 P .2d at I I l.
Iv. ARGUMENT
A. IPUC failed to provide adequate notice to all parties that intervenor
funding requests were due on August 2212017,
The first issue on appeal is whether the IPUC gave adequate notice of the August 22,
2017 deadline for intervenor funding requests to comply with procedural due process
requirements.
Rule 164 is a procedural rule that establishes a 14-day window for intervenors to apply
for intervenor funding requests, IDAPA 3 1.01.01 .164. According to Rule 164, intervenor
funding requests are due "no later than fourteen ( 14) days after the last evidentiary hearing in a
proceeding or the deadline for submitting briefs, proposed orders, or statements of position,
whichever is last." Id. This court has also long held that "[t]o satisfu an essential requisite of
procedural due process, a 'hearing' must be prefaced by timely notice which adequately informs
the parties of the speciiic issues they must prepare to meet." State v. Gibbs, 94 Idaho 908, 914,
Appellant's Brief - 6
500 P.2d 209 (1972\.ln Gibbs, a criminal summons only informed the defendant that the issue to
be heard was guilt or innocence. However, at the hearing, the court also entertained a
jurisdictional question not contemplated in the summons. The Supreme Court of Idaho found that
the defendant did not have adequate notice of the issues that would be heard, and thus, his due
process rights were violated for lack of notice. But, most important to the case at hand, is IDAPA
31.01.01.016.01 (Rule l6), which requires all notices of the IPUC to be either mailed or emailed.
The IPUC did not provide notice that Rule 164 was an issue that would be contemplated
at the August 8, 2017 evidentiary hearing, nor did it provide a mailed or emailed notice of the
Rule 164 deadline as required by Rule 16. The IPUC also did not provide prior notice to
intervenors that the August 8, 2017 evidentiary hearing would be the last evidentiary hearing or
that August 8, 2017 was the last date for submitting briefs, proposed orders, or statements of
position (see IDAPA 31.01.01.164). In fact, the scheduling order for the August 8,2017
technical hearing included an additional day for the evidentiary hearing (August 9, 2017), and it
was silent as to Rule 164. R. vol, I, p. 78. Similarly, the IPUC did not provide notice to
intervenors after the August 8,2017 hearing that Rule 164 was in effect as of August 8, 2017,
and that the due date for intervenor funding requests was August 22,2017. The only time in the
entire ten-month proceeding that the IPUC mentioned Rule 164 was at the August 8,2017
technical hearing when Commissioner Anderson devoted a one-sentence oral pronouncement
that, "Intervenor funding requests under Rule 164 are due l4 days from today." R. Partial Tr.
vol. II, p. 686.
Appellant's Brief - 7
The inadequacy of this oral pronouncement is the crux of Ms. Tidwell's argument. There
is simply no way to verifu that Ms. Tidwell or the other intervenors heard Commissioner
Anderson, and Ms. Tidwell strongly contends that oral announcements of deadlines for
legislatively enacted rights is wholly inadequate. Rule l6 requires all notices to be mailed or
emailed. Prior to Commissioner Anderson's statement, intervenors had no indication that the
time limit contemplated in Rule 164 would begin on August 8, 20l7.Had intervenors wished to
go back and determine when the time limit in Rule 164 began, they would be unable to do so
because there was no notice in the record available to intervenors that would allow them to make
such a determination independent of an actual order or notice. If an intervenor had a hearing
disability they would have similarly not known about the Rule 164 deadline, and the IPUC
would be at risk of Americans with Disabilities Act violations. Or, had an intervenor been in
conversation with counsel for the split second that Commissioner Anderson made his Rule 164
announcement they would also be without notice of the deadline. Simply put, the IPUC failed to
take the action required by Rule 16 and Idaho case law that would put intervenors on notice that
the Rule 164 deadline had been set.
This situation specifically and unfairly prejudiced those intervenors that either did not
hear Commissioner Anderson's statement that funding requests were due August 22,2017 or
were not present due to other factors (it is our understanding that intervenor Laura Midgley was
unable to attend the August 8,2017 hearing and was similarly unaware of the intervenor funding
deadline). The only notice of Rule 164 that could have been received by intervenors was if they
happened to hear a one sentence proclamation made by Commissioner Anderson at 5:27 PM,
Appellant's Brief - 8
after an all-day technical hearing. R. Partial Tr. vol. tt, 686. There are a myriad of ways in which
oral notice fails to effectively set the intervenor funding request deadline, all of which can be
remedied with a simple written statement setting forth the deadline for intervenor funding
requests. Rule l6 provides a solution to this problem, but the IPUC failed to comply with its
requirements.
"One of the purposes of adequate notice is to inform the affected individuals of the issues
to be presented at the hearing so they can reasonably prepare their case." State, Dept. of Law
Enforcement v. Engberg, 109 ldaho 530, 533, 708 P.2d 935 (App. I985) (citing State v. Gibbs,
94 Idaho 908, 500 P.2d209 (1972)\. Here, adequate notice was not given to Ms. Tidwell, and her
legislatively granted right to request intervenor funding quietly passed.
B. IPUC's denial of Appellant's intervenor funding request based solely
on timing is arbitrary, capricious, and an abuse of discretion because the IPUC has
previously awarded intervenor funding to late applicants.
The IPUC has previously granted late intervenor funding requests. In IPUC Case No.
IPC-E-17-03, the Community Action Partnership Association of Idaho (CAPAI) submitted a late
intervenor funding request. The IPUC's final order in that case granted CAPAI's late intervenor
funding request. Curiously, in its order granting intervenor funding, the IPUC did not address the
issue of timing for the intervenor funding request, and it was completely silent as to why it
granted intervenor funding under Rule 164, even though the application was late.
An agency action is arbitrary, capricious, or an abuse of discretion when there is a lack of
reasoned decision-making. See Lane Ranch Partnership v. City of Sun Valley ("Lane Ranch II"),
Appellant's Brief - 9
145 Idaho 87 , 9l , I 75 P.3d 77 6, 780 (2007) (citing Enterprise, Inc. v. Nampa City, 96 Idaho 734,
739,536P.2d729,734 (1975)); Michael S. Gilmore & Dale D. Goble, The ldaho Administrative
Procedure Act: A Primerfor the Practitioner,30ldaho L. Rev.273,365 (1993); and Motor
Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,463 U.S. 29,43 (1983). The Idaho
Supreme Court has not yet directly addressed whether agency actions need to be consistent with
prior agency action. However, it has come close.
In 1980, the Supreme Court of Idaho stated, "So long as the Commission enters sufficient
findings to show that its action is not arbitrary and capricious, the Commission can alter its
decisions." Washington Water Power Co. v. Idaho Public Utilities Commission, l0l Idaho 567,
579, 617 P.2d 1242,1254 (1980). But, several other state and federal decisions have
contemplated this question more directly. Richard H. Seamon, Idaho Administrative Law: A
Primer for Students and Practitioners,5l Idaho Law Review 421, 443-444 (2015). The United
States Supreme Court stated that "[a]n agency may not, for example, depart from a prior policy
sub silentio or simply disregard rules that are still on the books." Fed. Commc'n Comm'n v. Fox
Television Stations, Inc., 127 S. Ct. 1800, I 8l l, 556 U.S. 502, 515 (2009). ln FCC v. Fox
Televiston Stations, Inc. the Commission's new policy conceming censoring certain expletives
was not arbitrary or capricious because the FCC "acknowledged that its recent actions have
broken new ground, taking aceount of inconsistent 'prior Commission and staff action' and
explicitly disavowing them. . ." Id at I 812, 51 7. The rule out of that case is that agencies must
adequately explain inconsistencies with prior administrative actions if their inconsistent actions
are going to be valid.
Appellant's Brief - l0
In Ms. Tidwell's case, the IPUC did exactly what FCC v. Fox Television Statians, Inc.
explained was prohibited: it strictly construed Rule 164 without explanation, even though it had
previously ignored the requirements of Rule 164 in CAPAI's request. The IPUC also failed to
enter findings explaining why its earlier grant of late intervenor funding requests was appropriate
in the CAPAI case, but not in Ms. Tidwell's case; the IPUC's decision to strictly construe Rule
164's l4-day deadline was not explained or contemplated in light of the fact that they had
previously allowed late intervenor funding applications. It seems that the IPUC simply decided,
without explanation, that this was a case where Rule 164 would be applied strictly. Disregarding
specific administrative rules in one instance while strictly enforcing them in others, and doing so
sub silentio, is the exact kind of arbitrary and capricious action that the United States Supreme
Court contemplated and prohibited in FCC v. Fox Television Stations, Inc and the Idaho
Supreme Court contemplatedin Washington Water Power Co. v. Idaho Pub. Utils. Comm'n.
Ms. Tidwell's case is not unlike the CAPAI case, except that CAPAI's application for
intervenor funding was accepted and approved, while Ms. Tidwell's application for intervenor
funding was denied. The record shows that the IPUC denied Ms. Tidwell's intervenor funding
request solely because it was submitted late. R. vol. L pp. 175-176. Despite Ms. Tidwell applying
for funding on the day that she became aware intervenor funding requests were due, the IPUC
decided that it would strictly construe Rule 164, even though it had previously awarded late
intervenor funding quests without any explanation. The inconsistency and lack of explanation for
why the IPUC would accept one applicant's intervenor funding request while denying another's
is the defrnition of arbitrary and capricious decision making and it is the very type of action
Appellant'sBrief- ll
prohibited by administrative agencies. Ms. Tidwell respectfully asks this court to rule that
inconsistent agency actions are only valid if adequately explained.
C. IPUC violated Idaho Code $ 61-6174 because it denied Ms. Tidwell's
application solely based on timing.
Idaho Code $ 6l-617A sets out four standards upon which awards of intervenor funding
requests are to be evaluated. The IPUC did not deny Ms. Tidwell's application for intervenor
funding because it failed to comply with the factors of Idaho Code $ 6l-617A, nor did any other
parties to the case object to Ms. Tidwell's request for intervenor funding. Instead, the IPUC
found a convenient way to deny Ms. Tidwell's application for intervenor funding due to a
procedural error for which she was unaware because the deadline had not been properly noticed.
The legislature did not intend for the public to fall victim to complex and unknown procedural
rules when seeking costs and attorney fees. Instead, the intent of the legislature was
unmistakably codified in [daho Code $ 6l-617A(l), which states that it is "the policy of this state
to encourage participation at all stages of all proceedings before the commission so that all
affected customers receive full and fair representation in those proceedings."
Such a policy is directly opposed to tricky and unknown procedural rules that can be
silently used to avoid legislatively mandated policies. The IPUC has discretion in implementing
this law, but that discretion must be reasoned and based in fact. Lane Ranch Partnership v. City
of Sun Valley ("Lane Ranch II"), 145 Idaho 87, 91, 17 5 P.3d 776,780 (2007) (citing Enterprise,
Inc. v. Nampa City,96Idaho 734, 739,536P.2d729,734 (1975)); Michael S. Gilmore & Dale
D. Coble, The ldaho Administrative Procedure Act: A Primerfor the Practitioner,30 Idaho L.
Appellant's Brief - l2
Rev.273,365 (1993); and Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,463
U.S. 29,43 (1983). And, when looked at in conjunction with Idaho Code $ 61-617,{, it is clear
that the IPUC acted contrary to the legislatively enacted policy of Idaho Code $ 61-617A and
beyond the authorization given to it by the legislature.
Denying Ms. Tidwell's application solely on the basis of Rule 164 is antithetical to the
legislature's intent, and beyond the authority delegated to the IPUC as an administrative agency
because the IPUC failed to consider the appropriate factors.
D. The August8,2017 evidentiary hearing was not 66the last evidentiary
hearing in a proceeding or the deadline for submitting briefs, proposed orders, or
statements of position," under Rule 164.
Even if the court determines that notice of Rule 164 was sufficient, the IPUC incorrectly
determined that Rule 164 went into effect on the August 8,2017 evidentiary hearing. Unless
otherwise stated in an order, Rule 164 states that intervenor funding requests are due 14 days
after the last evidentiary hearing in a proceeding or the deadline for submitting briefs, proposed
orders, or statements of position, whichever is last. IDAPA 31.01.01.164.
The IPUC failed to take into account that the date of the last deadline for submitting
briefs was November 2,2017, which is 2l days after the Final Order was served and the due date
forpetitions for reconsideration. R. vol. 1,p.176. Under IDAPA 31.01.01.255 (Rule 255),any
party may move to file briefs, proposed orders, or statements of position. Thus, because final
orders by the IPUC are all subject to petitions for reconsiderations, the deadline to submit briefs,
proposed orders, or statements of position had not yet passed.
Appellant's Brief- l3
Without an order to the contrary, the Rule 164 deadline would not have begun until 14
days after November 2,2017, at the earliest. The true deadline for filing intervenor funding
requests was November 16, 2017, which would have been l4 days after the last opportunity to
file briefs, proposed orders, or statements of position without an order stating otherwise. Any
requests prior to that date would have opened up intervenors to additional attorney fees if
petitions for reconsideration and other further proceedings occurred.
Based on the November 2,2017 deadline for submitting petitions for reconsideration, the
deadline for submitting briefs, proposed orders, or statements of position under Rule 164 was
after August, 8, 2017, and the l4-day window to apply for intervenor funding was actually
between November 2,2017 and November 16, 2017. Under the plain language of Rule 164,
August 22,2017 would only be the intervenor funding deadline if an order "otherwise stated."
Since there was no order, the deadline for submitting applications for intervenor funding was
after August22,2077.
Ms. Tidwell's request for intervenor funding was submitted on September 16,2017, a
month before the November 16, 2017 deadline. Ms. Tidwell's request for intervenor funding was
timely and should not have been dismissed because it was late.
E. Rule 164 is unconstitutional for reason of vagueness.
As written, Rule 164 is arbitrary and capricious because it is too imprecise and vague to
accurately determine when the rule takes effect. After the above discussion, it should be clear
that Rule 164 is extremely vague when applied to real-world IPUC cases because numerous
Appellant's Brief - l4
interpretations of Rule 164 are plausible, and the justification for picking one over the other is
act in arbitrary decision-making.
The Supreme Court of the United States has held that agency rules cannot be overly
vague. "[T]he void for vagueness doctrine addresses at least two connected but discrete due
process concems: first, that regulated parties should know what is required of them so they may
act accordingly; second, precision and guidance are necessary so that those enforcing the law do
not act in an arbitrary or discriminatory way." FCC v. Fox Television Stations, lnc., 132 S. Ct.
2307,23t7, 567 U.S. 239, 254 (2012).
Intervenors are unable to know what is required of them under Rule 164, unless a written
order is provided by the IPUC. But, adding to the confusion is that the IPUC's interpretation of
Rule 164 is often at odds with intervenor's interpretations. As demonstrated by this IPUC case
and other cases involving intervenor funding, Rule 164 does not allow the IPUC to act with
precision or the necessary guidance in enforcing Rule 164. Without written notice of Rule 164 or
an order stating the Rule 164 deadline, it is difficult to determine the date of the last evidentiary
hearing or when the last deadline for briefs, proposed orders, or statements of position are due.
Additionally, Rule 252 allows the commissioner to continue hearings, making it impossible to
know with any certainty when "the last evidentiary hearing" will occur unless the last evidentiary
hearing is noticed after it has occurred. IDAPA 3l .01.01 .252.That did not happen in Ms.
Tidwell's case.
Similarly, and as mentioned above, a petition for reconsideration opens the door for
briefs, proposed orders, and statements of position. See Building Contractors Assn. of
Appellant's Brief - l5
Southwestern ldaho v. Idaho Public Utilities Comm'n., I 5l Idaho 10,253 P.3d 684 (201 1);
IDAPA 31.01.01.252 and255. Without a determination by the IPUC that the Rule 164 deadline
would be on a date certain, it is impossible for intervenors to determine the deadline for
intervenor funding requests because Rule 164 is too imprecise and vague.
While the intent of Rule 164 is obvious - and Ms. Tidwell has no objection to the simple
existence of a deadline for intervenor funding requests - the language of the rule creates
somewhat of an unknowable and imprecise deadline that even a seasoned attorney has a hard
time figuring out, let alone a non-attorney intervenor. A rule that cannot be accurately predicted
as to when it takes effect can only be applied arbitrarily and capriciously, and necessarily
violates the Vagueness Doctrine as stated in FCC v. Fox Television Stations, Inc. A rule as vague
as Rule 164 cannot hold muster against the requirements of the Constitution.
As a result, while a l4-day deadline for submitting intervenor funding requests is
eminently reasonable, when that deadline occurs must be accurately determinable and applied
consistently. Rule 164 cannot achieve this low bar, as written. As a result, it is unconstitutional
for reason of vagueness.
F. Ms. Tidwell is entitled to an award of attorney fees on appeal.
Ms. Tidwell was required to obtain the advice and services of counsel to bring this appeal
and is entitled to an award of attomey fees and costs on appeal pursuant to the private attorney
general doctrine, Idaho Code $$ l2-l17,61-617A, and [daho Appellate Rules 40 and 41.
Appellant's Brief - 16
1. This Case Satisfies the Requirements of the Private Attorney General Exception to
the American Rule on Attorney Fees.
The private attorney general doctrine forms a strong basis for an award of attorney fees in
this case. The private attorney general doctrine was developed to allow for an award of attorney
fees when an action meets three specific requirements: (l) the strength or societal importance of
the public policy indicated by the litigation, (2) the necessity for private enforcement and the
magnitude of the resultant burden on the plaintiff, (3) the number of people standing to benefit
from the decision. Hellar v. Cenamrsa, 106 Idaho 571, 577-78,682 P.2d 524, 530-31 (1984).
The societal importance of the public policy requiring adequate notice is enshrined by the
Due Process clause of 5th Amendment of the U.S. Constitution and its application to states via
the l4th Amendment of the U.S. Constitution. Due process, specifically proper notice and an
opportunity to be heard, are fundamental to the rule of law in the United States of America.
Similarly administrative bodies in this country are required to act in a reasoned decision-making
process. Judulang v. Holder, 132 S. Ct. 476,484 QAll), see a/so FCC v. Fox Television
Stations, Inc. 556 U.S. 502, 537 (2009) ("If [a] [federal] agency takes action not based on neutral
and rational principles, the [federal] APA grants federal court power to set aside the agency
action as 'arbitrary' or'capricious"'); Allentown Mack Sales & Serv.,lnc. v. NLRB, 522 U.S.
359,374 (1998) ("adjudication is subject to the requirement of reasoned decision making").
Additionally, the Idaho legislature has specifically stated that it is the policy of the State
of Idaho to encourage intervenor funding, and encouraging intervenor shall take the form of
reimbursing intervenors for attomey fees and costs. This litigation is a direct result of this
Appellant's Brief - 17
legislatively enacted public policy. Thus, the societal importance of ensuring that administrative
agencies act within these boundaries is paramount to upholding the public policy mandated by
the U.S. Constitution and expanded by the Idaho legislature.
Holding the IPUC accountable to administrative law requirements of proper notice and
due process is necessarily the duty of private citizens. Since administrative agencies, like the
IPUC, are subdivisions of the state, the attorney general's office is more often devoted to
defending agency action. Only private citizen action can hold the administrative bodies
accountable to the low burden of reasoned decision making, and only private citizens will bring
suits arguing against specific adminishative rules.
Finally, the number of people that stand to benefit from this action is significant because
requiring proper notice procedures for Rule 164 will affect all future intervenors in public utility
cases. For all of the foregoing reasons, Ms. Tidwell respectfully requests an award of attorney
fees under the private attorney general doctrine, to include those requested by her as an
intervenor and the additional costs required to bring this action.
2. Idaho Code $ l2-l l7 is an appropriate basis for an award of attomey fees because the
IPUC's actions were arbitrary. capricious. and an abuse of discretion.
Idaho Code $ 12- l I 7 provides for an award of attorney fees to the prevailing party and
against a state agency or other political subdivision if the non-prevailing party acts without a
reasonable basis in fact or law. Idaho Code $ l2-ll7 serves "as a deterrent to groundless or
arbitrary action and to provide a remedy for persons who have borne unfair and unjustified
financial burdens defending against groundless charges or attempting to correct mistakes
Appellant's Brief - 18
agencies should never have made." Neighbors for a Healthy Gold Fork v. Valley County, 145
Idaho l2l, 138, 176 P.3d 126,143 (2007).
An action that is arbitrary, capricious, or an abuse of discretion is necessarily an action
brought without reasonable basis in law.
As a result, and if Ms. Tidwell is the prevailing party, Idaho Code $ l2-ll7 provides Ms.
Tidwell with an avenue to recover attomey fees and costs.
3 . Idaho Code Q 6 1 -61 7,A' is an appropriate basis for an award of attomey fees because
Mq. Tidwell meets the substantive requirements for such an award.
Idaho Code $ 61-617 A allows intervenors in public utility commission cases to recoup
some or all of their costs associated in participating. The intent of this statute is clear: encourage
public participation in otherwise inaccessible administrative procedures. In Ms. Tidwell's initial
application to the IPUC for intervenor funding, she explained why she qualified for intervenor
funding under the stated factors. R. vol. I, pp. 164-165. Ms. Tidwell's rationale for why she
deserves an award of attorney fees and costs under Idaho Code $ 6l-617A are the same now as
they were in September, except that her current appeal also stands to significantly clarify and
improve the intervenor funding process for all future intervenors. Ms. Tidwell has satisfied the
requirements to receive intervenor funding because she materially contributed to the IPUC's
decision, the costs claimed are reasonable and constitute a significant financial hardship for Ms.
Tidwell, her recommendation to the IPUC differed materially from the testimony and exhibits of
the [PUC, and Ms. Tidwell's participation addressed issues of concem to the general public
affected by ldaho Power's proposal. Furthermore, the IPUC did not deny Ms. Tidwell's
Appellant's Brief - l9
application for intervenor funding for failing to satisfo the above requirements. lnstead, her
application for intervenor funding was denied solely based on timing.
Ms. Tidwell meets the statutory requirements to receive funding from the IPUC.
Furthermore, the IPUC did not deny her initial applications for intervenor funding based on the
statutory factors required under ldaho Code $ 6l -617A. Ms. Tidwell respectfully requests that
she be awarded the attorney fees and costs associated with her original application for fees and
costs, in addition to the costs and fees associated with this current appeal as a continuation of her
original intervenor action.
4. Ms. Tidwell seeks an award of attorney fees under Idaho Appellate Rule 40.
Idaho Appellate Rule 40 provides an award of attorney fees to the prevailing party. If Ms.
Tidwell prevails on her appeal, she respectfully asks this court to award attomey fees.
V. CONCLUSION
For the fbregoing reasons, Order No. 33928 should be set aside. Ms. Tidwell should be
awarded attorney fees and costs to the full extent allowed by ldaho Code $ 61-617A. Ms.
Tidwell also respectfully requests reasonable attorney fees and costs on appeal.
DATED this lO day of April, 2018.
Linnet
Attomey for Appell ant/lntervenor
Appellant's Brief - 20
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this ) O day of April, 2018, I caused to be served a
true copy of the foregoing document by the method indicated below, and addressed to each of
the following:
Donovan E. Walker
Idaho Power Company
PO Box 70
Boise,ID 83707-0070
dwalker@idahopower. com
dockets@idahopower. com
Camille Christen
Deputy Attorney General
Idaho Public Utilities Commission
PO Box 83720
Boise, lD 83720-0A74
cam i I le. chri sten@puc. id aho. gov
,ts}v
X
.'V
Fed Ex
E-Mail
Fed Ex
E-Mail
Appellant's Brief - 21
I