20180509IPUC Respondent Brief.pdf

IN THE SUPREME COURT OF THE STATE OF IDAHO
IN THE MA TIER OF THE APPLICATION OF )
IDAHO POWER COMP ANY FOR A )
CERTIFICATE OF PUBLIC CONVENIENCE )
AND NECESSITY TO CONSTRUCT SYSTEM )
IMPROVEMENTS FOR WOOD RIVER )
VALLEY CUSTOMERS )
)
IDAHO POWER COMPANY, )
)
Applicant-Respondent, )
v. )
)
KIKI LESLIE A. TIDWELL, )
)
Intervenor-Appellant, )
)
and )
)
IDAHO PUBLIC UTILITIES COMMISSION, )
)
Respondent. )
SUPREME COURT
DOCKET NO. 45644-2018
IDAHO PUBLIC UTILITIES
COMMISSION NO. IPC-E-16-28
RESPONDENT BRIEF OF THE
IDAHO PUBLIC UTILITIES
COMMISSION
APPEAL FROM IDAHO PUBLIC UTILITIES COMMISSION
Commissioner Eric Anderson, Presiding
LAWRENCE WASDEN
Idaho Attorney General
Edith Pacilio, ISB #5430
Karl Klein, ISB #5156
Idaho Public Utilities Commission
472 W. Washington Street
Boise, Idaho 83702
Atlorney for Respondent Idaho PUC
Donovan E. Walker, ISB #5921
Idaho Power Company
1221 West Idaho
Boise, Idaho 83702
Attorney for Applicant-Respondent Idaho Power Co.
Samuel L Linnet, ISB #9788
Linnet Law Office, PLLC
115 Second A venue South
Hailey, Idaho 83333
Attorney for Intervenor-Appellant Tidwell
TABLE OF CONTENTS
I. ST A TEMENT OF THE CASE ................................................................................................... 1
A. Nature of the Case ............................................................................................................. l
B. The Course of Proceedings ............................................................................................... 2
C. Concise Statement of the Facts ......................................................................................... 3
1. The Initial Proceeding and Commission Decision ........................................................... 3
2. Ms. Tidwell's Late Request for Intervenor Funding ........................................................ .4
3. The Comission's Decision on Ms. Tidwell's Request for Intervenor Funding
(Order No. 33906) ............................................................................................................ 5
4. Ms. Tidwell's Petition to Reconsider the Denial of Her Late Funding Request.. ............. 5
5. The Commission's Reconsideration Decision (Order No. 33928) .................................... 6
II. ISSUES PRESENTED ON APPEAL ......................................................................................... ?
III. STANDARD OF REVIEW ....................................................................................................... 7
IV. ARGUMENT ............................................................................................................................ 8
A. The Commission's Order on the Intervenor-Funding Request Was Not Unreasonable,
Unlawful, Erroneous or Not in the Conformity With the Law ......................................... 8
B. Ms. Tidwell Has Waived the Remaining Arguments in Her Appeal Because She Did
Not Raise Them Below ................................................................................................... 12
1. Ms. Tidwell Had Adequate Notice of Idaho Code § 61-617 A and Rule I 64 ................ .14
2. The Commission Did Not Act Arbitrarily or Capriciously ............................................ 17
3. The Commission Did Not Violate Idaho Code § 61-617 A ............................................ 18
4. Rule 164 Is Not Vague ................................................................................................... 18
C. Ms. Tidwell is Not Entitled to Attorney Fees on Appeal.. .............................................. 20
l. Ms. Tidwell is Not Entitled to Attorney Fees Under the Private Attorney General
Doctrine .......................................................................................................................... 21
2. Ms. Tidwell is Not Entitled to Attorney Fees on Appeal Under Idaho Code § 12-117 .. 22
3. Ms. Tidwell Cannot Use This Forum to Obtain Intervenor Funding .............................. 24
4. Ms. Tidwell is Not Entitled to Attorney Fees Under Appellate Rule 40 ........................ 24
V. CONCLUSION ........................................................................................................................ 25
lJ
TABLE OF AUTHORITIES
Cases
Ameritel Inns, Inc. v. Pocatello-Chubbuck Auditorium or Cmty. Ctr. Dist., 146 Idaho 202, 204,
192 P.3d 1026, 1028 (2008) .................................................................................................... 10
A. W. Brown Co., Inc. v. Idaho Power Co., 121 Idaho 812,819,828 P.2d 841,848 (1992) ......... 23
Bream v. Benscoter, 139 Idaho 364, 79 P.3d 723 (2003) .............................................................. 25
Building Colltractors Ass 'n of Sw. Idaho v. Idaho Pub. Util. Comm '11, 151 Idaho 10, 253 P.3d
684 (2011) .................................................................................................................... 11, 20, 24
Chalmers v. City of Los Angeles, 762 F.2d 753 (9th Cir. l 985) ..................................................... l 9
Cowan v. Bd. of Comm'rs of Fremol11 Cty., 143 Idaho 501, 513-14, 148 P.3d 1247, 1259-60
(2006) ....................................................................................................................................... l 9
Dami v. Dami, 146 Idaho 929, 941-42, 204 P.3d 1140, 1152-53 (2009) .................................... 16
Donovan v. Miller, 12 Idaho 600,605, 88 P. 82, 84 (1906) ........................................................... 17
Duncan v. State Bd. of Accountancy, 149 Idaho l, 6,232 P.3d 322,327 (2010) .......................... 21
Esser Elec. v. Lost River Ballistics Techs., Inc., 145 Idaho 912,917, 188 P.3d 854,859 (2008).16
Eagle Water Co. v. Idaho PUC, 130 Idaho 314, 316-17, 940 P.2d 1133, 1135-36 (1997) ........... 14
Greenfield v. Smith, 162 Idaho 246, 253, 395 P.3d 1279, 1286 (2017) ........................................ 12
Gro-Mor Inc., v. Butts, 109 Idaho 1020, 712 P.2d 721 (Ct.App. 1985) ........................................ 16
H & V Eng'g, Inc. v. Idaho State Bd. of Prof/ Engineers & Land Surveyors, 113 Idaho 646,649,
747 P.2d 55, 58 (1987) ............................................................................................................ 19
Hearst Corporation v. Keller, 100 Idaho 10,592 P.2d 66 (1979) ................................................. 16
Heller v. Cenarrusa, 106 Idaho 571, 578, 682 P.2d 524, 531 (1984) ........................................... 21
Hook v. Homer, 95 Idaho 657,661,517 P.2d 554,558 (1973) .................................................... 23
Idaho Fair Share v. Idaho Pub. Utilities Comm'n, 113 Idaho 959, 963, 751 P.2d 107, 111 (1988)
................................................................................................................................................... 7
Kootenai Medical Center v. Bomzer County Com'rs 141 Idaho 7, 10, 105 P.3d 667,670 (2004)21
Lindstrom v. Dist. Bd. of Health Panhandle Dist. I, 109 Idaho 956,959, 712 P.2d 657,660 (Ct.
App. 1985) ............................................................................................................................... 19
McNeal v. Idaho PUC, 142 Idaho 685, 132 P.3d 442 (2006) ........................................................ 14
Murray v. Spalding, 141 Idaho 99, 101-02, 106 P.3d 425, 427-28 (2005) .................................. 14
Newbold v. Arvidson, 105 Idaho 663, 672 P.2d 231 (1983) .......................................................... 16
Olsen v. J.A. Freeman Co., 117 Idaho 706, 716, 791 P.2d 1285, 1295 (1990) ............................. 19
Owner-Operator lndependellt Drivers Ass'n v. Idaho PUC, 125 Idaho 401,407,871 P.2d 818,
824 (1994) .................................................................................................................... 21, 22, 23
Schraufizagel v. Quinowski, 113 Idaho 753, 747 P.2d 775 (Ct.App. 1987) .................................. 16
State v. Hagerman Water Right Owners ("HWRO"), 130 Idaho 718,947 P.2d 391 (1997) ......... 21
State ex rel. Wasden v. Daicel Chem. Indus., Ltd., 141 Idaho 102, 109, 106 P.3d 428,435 (2005)
................................................................................................................................................. 25
Syringa Networks, LLC v. ldaho Dept. of Admin. 155 Idaho 55,305 P.3d 499 (2013) ................ 21
Ultrawall v. Washington Mut. Bank, 135 Idaho 832, 836, 25 P.3d 855, 859 (2010) .................... 23
Washington v. Federal Sav. And Loan Ass'n v Transamerica, 124 Idaho 913,918,856 P.2d
1004, 1009 (1993) .......................................................................................................... 9, 16, 18
Westby v. Schaefer, 157 Idaho 616,338 P.3d 1220 (2014) ............................................................. 8
Wyckoffv. Board of Cotmty Commissioners of Ada County, 101 Idaho 12, 15,607 P.2d 1066,
1069 (1980) .............................................................................................................................. 19
Statutes
Idaho Code § 12-117 ................................................................................................... 20, 22, 23, 24
Idaho Code§ 12-l 17(5)(d) ...................................................................................................... 22, 23
Idaho Code§ 12-121 ..................................................................................................................... 21
Idaho Code § 61-617 A ........................................................................................................... passim
Idaho Code § 67-5201 ................................................................................................................... 22
Idaho Code§ 67-5201(1) ............................................................................................................... 23
Other Authorities
C. WRIGHT, A MILLER, FEDERAL PRACTICE AND PROCEDURE§ 2858 p. 170 (1973) ....
................................................................................................................................................... 16
Rules
IDAPA 31.0l.0l.014 ....................................................................................................................... 4
IDAPA 31.01.01.016 ..................................................................................................................... 14
IDAPA 31.01.01.102 ..................................................................................................................... 15
IDAPA 31.01.01.123 ..................................................................................................................... 15
IDAPA 31.01.01.161 ....................................................................................................................... 1
IDAPA 31.01.0l.161-165 ................................................................................................................ 3
IDAPA 31.0l.0l.164 ....................................................................................................... l, 8, 15, 24
IDAPA 31.01.01.204 ..................................................................................................................... 15
IDAPA 31.0l.01.212 ..................................................................................................................... 15
IDAPA 31.0l.01.286.09 .................................................................................................................. 4
IDAPA 31.0l.0l.331 ................................................................................................................. 8, 10
iv
Idaho PUC Orders
Order No. 33872 .............................................................................................................................. 6
Order No. 33906 .......................................................................................................................... 5, 6
Order No. 33928 ...................................................................................................................... 6, 7, 8
V
I. STATEMENT OF THE CASE
A. Nature of the Case
This is an appeal from a final order on reconsideration issued by the Idaho Public Utilities
Commission ("Commission"). The underlying administrative proceeding was initiated when
Idaho Power Company applied to the Commission for a Certificate of Public Convenience and
Necessity ("CPCN)" to build a new transmission line in the Wood River Valley. The Commission
granted the requested CPCN. It also granted a timely intervenor-funding request, under Idaho Code
§ 61-617A, from one of the intervening parties. This appeal involves the Commission's denial of
a late-filed intervenor-funding request from another intervenor.
Under Idaho Code§ 61 -617A, the Commission may order a regulated electric utility with
annual gross intrastate annual revenues above $3.5 million to pay up to $40,000 in intervenors'
collective costs for legal fees, witness fees, and reproduction costs. Idaho Code § 61-617 A(2).
The Commission must decide whether to order the utility to pay the costs based on considerations
set forth in the statute. Id. As allowed by the statute, the Commission has adopted rules for its
implementation. See IDAPA 31.01.01.161 et seq. The Commission's rules establish a deadline
for intervenors to file intervenor-funding requests. IDAPA 31.01.01.164 ("Rule 164"). The
deadline is, unless otherwise provided by order, "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.
RESPONDENT BRIEF OF THE
IDAHO PUBLIC UTILITIES COMMISSION
In the Commission proceeding at issue here, Ms. Tidwell requested intervenor funding
nearly a month after the deadline. R. Vol. I, p. 164. The Commission denied the request as
untimely. Id. at 175. Ms. Tidwell then filed a petition for reconsideration, which the
Commissioned denied. Id. at 178-179, 180. Ms. Tidwell has appealed the Commission's final
order denying reconsideration to this Court.
B. The Course of Proceedings
On November 8, 2016, Idaho Power Company applied for a CPCN to improve its system
and secure adequate and reliable service for customers in the Wood River Valley. Id. at 8-34.
Specifically, the Company requested a CPCN to build a new (second) transmission line and related
facilities to provide redundant service from the Wood River substation near Hailey into the
Ketchum substation. Id. The Company asked that the CPCN permit the particular line route and
facilities identified in testimony accompanying the application. Id.
The Commission issued a Notice of Application and set a deadline for petitions to
intervene. Id. at 36. The Commission granted timely petitions to intervene from Ms. Tidwell,
Laura Midgley, the Sierra Club, Idaho Conservation League, and the City of Ketchum. Id. at 47,
63. The Commission also granted late petitions to intervene from CoxCom, LLC; Rock Rolling
Properties, LLC; and Rock Rolling Properties #2, LLC. Id. at 84, 120. The Commission held a
public hearing for the Company's customers in Ketchum, Idaho on July 26, 2017, and "technical"
hearing to take evidence presented by the parties' experts in Boise, Idaho on August 8, 2017. See
id. at 143. The August 8, 2017 technical hearing was the last evidentiary hearing in the case, and
Ms. Tidwell and her counsel both attended it. Tr. Vol. I at List of Appearances. When the technical
RESPONDENT BRIEF OF THE
IDAHO PUBLIC UTILITIES COMMISSION 2
hearing adjourned, the Commission's chair for the case, Commissioner Anderson, reminded the
parties that any intervenor-funding requests would be due 14 days from that day (or August 22,
2017). Tr. Vol. Ip. 686, L. 15-16. Intervenor Sierra Club timely requested intervenor funding on
August 21, 2017. R. Vol. I, p. 136. Then, on September 15, 2017, the Commission issued its final
order on the requested CPCN. Id. The Commission found that
[a]t its root, this case presents the question of what facilities are required in the
North Wood River Valley for Idaho Power Company to meet its obligation to
provide service that promotes the "health, safety and convenience" of the public
and that is "adequate, efficient, just and reasonable." [Idaho Code] § 61-302.
Having reviewed the record, we find that the Company has demonstrated the need
for a redundant line from the Wood River substation to the Ketchum substation.
Id. at 155. The Commission thus granted Idaho Power's requested CPCN. Id. at 160. In its order,
the Commission also granted Sierra Club's timely request for intervenor funding. Id. at 159-160.
On September 19, 2017-28 days after the deadline for filing intervenor-funding requests
per Rule 164-Ms. Tidwell filed her intervenor-funding request. Id. at 164-174, 200. The
Commission denied her funding request for lateness on October 12, 2017. Id. at 175-177. Ms.
Tidwell filed a timely petition for reconsideration, id. at 178-179, which the Commission denied.
Id. at 180-182. Ms. Tidwell timely appealed to this Court. Id. at 183-188.
C. Concise Statement of the Facts
1. The Initial Proceeding and Commission Decision.
Relevant to Ms. Tidwell' s appeal, Idaho Code § 61-617 A and the Commission's Rules of
Procedure (IDAPA 31.01.01.161-165) address intervenor funding and notify parties of their
opportunity to request it. Further, it is undisputed that Commissioner Anderson reiterated the
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deadline for requesting intervenor funding under Rule 164 at the close of the August 8, 2017
technical hearing, and that Ms. Tidwell and her legal counsel were in attendance. Tr. Vol. I at List
of Appearances, p. 686, L. 15-I 6.1 Indeed, another intervenor, Sierra Club, was well aware of,
and complied with, the deadline for intervenor-funding requests. R. Vol. I., p. 136. Despite Ms.
Tidwell's claim, discussed herein, that she was unaware of the availability of intervenor funding,
information about intervenor funding, including the request deadline, was provided to Ms. Tidwell
and her counsel and all other intervenors via the statute, Rules, and Commissioner Anderson's
statement at the hearing. 2
On September 15, 2017, the Commission issued a final order in the case that granted Idaho
Power's requested CPCN and Sierra Club's timely-filed request for intervenor funding. Id. at 143.
No one asked the Commission to reconsider that order.
2. Ms. Tidwell's Late Request for Intervenor Funding.
In her brief, Ms. Tidwell claims she filed her intervenor-funding request on September 16,
2017. Appellant's Br. at 2, 3. In fact, it was not received by the Commission Secretary, and thus
not filed as required by Rule 14 of the Commission's Rules of Procedure (IDAPA 31 .01.01.014 ),
until September 19, 2017. R. Vol. I, p. 200. Regardless, it was due on August 22, 2017, and
therefore was filed nearly a month late.
1 Ms. Tidwell's Counsel in the Commission proceeding was different than counsel in this appeal.
2 Ms. Tidwell's assertion that Lhc hearing transcript was "unavailable to intervenors," Appellant's Br. at 2, is false.
Under the Commission's Rules of Procedure, any party or other person may request and pay for a transcript or
portion of a transcript. IDAPA 31.01.01.286.09.
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In the intervenor-funding application, Ms. Tidwell acknowledged that it was late, stating
that she "was not aware of the possibility of Intervenor funding under Idaho Code 61-617 A; my
attorney never presented me this information." Id. at 164. Later, she "apologize[d] that this request
is being submitted late due to the lack of communication that this compensation was available to
me as an intervenor." Id. at 165. Her request also purported to describe how it meets the elements
of Idaho Code§ 61-617A. Id. at 164-165.
Ms. Tidwell's brief describes her intervenor-funding request as "a good-faith attempt at
cooperation and acceptance of the agency's deadline" and a "good-faith attempt at fixing this
procedural error." Appellant's Br. at 7. It does not explain how an intervenor-funding request
filed nearly a month late can constitute "acceptance of the agency's deadline" or an attempt to fix
a procedural error -let alone, what the "procedural error" was.
3. The Commission's Decision o,z Ms. Tidwell's IAte Request for J,ztervenor Funding
(Order No. 33906).
On October 12, 2017, the Commission issued an order denying Ms. Tidwell's intervenor­
funding request as untimely. R. Vol. I, p. 175-177. The Commission noted that Ms. Tidwell was
at the August 8, 2017 hearing when Commissioner Anderson stated -when intervenor-funding
requests were due, and that Ms. Tidwell's request was filed nearly a month late. Id. at 176. The
Commission thus denied the request. Id.
4. Ms. Tidwell's Petition to Reconsider tire Denial of Her IAte Funding Request.
On October 22, 2017, Ms. Tidwell timely asked the Commission to reconsider its order
denying her intervenor funding (Order No. 33906). Id. at 178. Contrary to her initial funding
RESPONDENT BRIEF OF THE
IDAHO PUBLIC UTILITIES COMMISSION 5
request, where she admitted her funding request was late, in her petition for reconsideration Ms.
Tidwell argued that her funding request was timely because she filed it when petitions for
reconsideration of Order No. 33872 could still be submitted. Id. She also argued that the
Commission "had a 'duty to provide a full and fair representation in the proceedings to all affected
customers,"' id. (citation omitted), but that the Commission "failed to provide a fair proceeding
by failing to provide adequate information" about Idaho Code § 61-617 A to intervenors "in
advance of the written September 15, 2017 written order." Id. She further asserted that her
attorney thought that only non-profits could apply. Id. at 179.3
5. Tlte Commission's Reconsideration Decision (Order No. 33928).
On November 17, 2017, the Commission denied Ms. Tidwell' s petition for reconsideration
of the order denying her funding request, Order No. 33906. Id. at 180-182. The Commission
noted that, although Ms. Tidwell's petition for reconsideration argued that her intervenor-funding
request was timely, the funding request itself acknowledged that it was late. Id. at 181. The
Commission also referred to and quoted Rule 164, and noted that Chair Anderson "gave explicit
notice to all parties at the conclusion of the technical hearing, including Ms. Tidwell and her
counsel, about the deadline for intervenor funding requests." Id. The Commission consequently
found "no reasonable basis for reconsideration of our prior decision finding Ms. Tidwell's request
for intervenor funding untimely," and thus denied the petition for reconsideration. Id.
3 Ms. Tidwell submitted bo1h the intervenor-funding request and the petilion for reconsideration personally, not
through counsel.
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II. ISSUES PRESENTED ON APPEAL
The Commission restates the issues as follows:
1. Whether the Commission's Order on Ms. Tidwell's intervenor-funding request (Order
No. 33928) was unreasonable, unlawful, erroneous, or not in conformity with the law.
2. Whether Ms. Tidwell waived her remaining arguments on appeal by failing to raise
them below.
3. Whether Ms. Tidwell is entitled to attorney fees on appeal.
In the following sections, the Commission addresses all of Ms. Tidwell' s arguments in the
context of these three issues.
III. STANDARD OF REVIEW
The Commission disagrees with Ms. Tidwell's reliance on Idaho Fair Share v. Idaho Pub.
Utilities Comm'n, 113 Idaho 959, 963, 751 P.2d 107, 111 (1988) for the standard of review. See
Appellant's Br. at 6. That case involved a challenge to the Commission's application of the
statutory criteria in Idaho Code § 61-617 A. Here, the Commission did not rule on the merits of
Ms. Tidwell' s intervenor-funding request under the criteria expressed in Idaho Code § 61-617 A.
Rather, the Commission denied her funding request because it was late under Commission Rule
164. Ms. Tidwell then petitioned the Commission to reconsider its decision to deny her funding
request for untimeliness. The Commission denied her reconsideration request, too. This case is,
therefore, an appeal from the Commission's denial of Ms. Tidwell's petition for reconsideration.
Appellant's Brief at l. When the Supreme Court reviews a trial court's decision to grant or deny
a motion for reconsideration, it uses the same standard of review the lower court used in deciding
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the motion for reconsideration. Westby v. Schaefer, 157 Idaho 616,338 P.3d 1220 (2014). Under
the Rules of Procedure of the Idaho Public Utilities Commission, a petition for reconsideration
must state the grounds why the petitioner contends that the order was unreasonable, unlawful,
erroneous, or not in conformity with the law. IDAPA 31.01.01.331. Therefore, the standard of
review is whether Ms. Tidwell established that the Commission's order on Ms. Tidwell's original
intervenor-funding request was unreasonable, unlawful, erroneous, or not in conformity with the
law.
IV. ARGUMENT
A. The Commission's Order on the Intervenor-Funding Request Was Not Unreasonable,
Unlawful, Erroneous, or Not in Conformity With the Law.
This is an appeal from the Commission's denial of Commission Order No. 33928, denying
Ms. Tidwell's petition for reconsideration. Pursuant to IDAPA 31.01.01.331, a petition for
reconsideration must state the grounds why the petitioner contends that the order was
unreasonable, unlawful, erroneous, or not in conformity with the law. Ms. Tidwell's petition for
reconsideration did not meet this standard.
The Commission applied Rule 164 in denying both her original request and the petition for
reconsideration. Rule 164 states, in relevant part:
Unless otherwise provided by order, an intervenor requesting intervenor funding
must apply 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.
IDAPA 31.01.01.164. The Rule plainly states the deadline for submitting intervenor-funding
requests. The August 8, 20 I 7 technical hearing was the last evidentiary hearing in the case, and
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Ms. Tidwell and her counsel both attended it. Tr. Vol. I at List of Appearances. At the close of
the hearing, the Commission's chair for the case reminded the parties that any intervenor-funding
requests would be due 14 days from that day (or August 22, 2017). Tr. Vol. Ip. 686, L. 15-16.
Ms. Tidwell and her counsel were present at the hearing. Tr. Vol 1, at List of Appearances. Ms.
Tidwell filed her request on September 19, 2017, which is clearly untimely.
Ms. Tidwell's intervenor-funding request acknowledged that it was late, and explained that
Ms. Tidwell "was not aware of the possibility of Intervenor funding under Idaho Code 61-617 A;
my attorney never presented me this information." Id. at 164. Ms. Tidwell also ''apologize[d] that
this request is being submitted late due to the lack of communication that this compensation was
available to me as an intervenor." Id. at 165.
At that time, Ms. Tidwell's only explanation for filing late was that her attorney did not
tell her about the availability of intervenor funding. Her explanation was not supported by
affidavits. Her argument fails because, as a factual matter, it is uncontested that the hearing
chairman stated on the record that the deadline for intervenor-funding requests was 14 days from
the hearing. Tr. Vol 1, p. 686, L. 15-16. Thus, both Ms. Tidwell and her counsel had notice, via
an on-the-record statement, that intervenor funding was available and that a deadline existed.
Further, ignorance of procedural rules is generally inexcusable. Washington v. Federal Sav. And
Loan Ass'n v Transamerica, 124 Idaho 913,918, 856 P.2d 1004, 1009 (1993). Accordingly, the
Commission correctly denied the request as untimely. R. Vol. I, p. 175-177.
In her petition for reconsideration, Ms. Tidwell changed her reasoning for the late filing.
Rather than continuing to admit that her funding request was untimely, she instead stated that the
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funding request was timely because it "was submitted during the period that a petition for
reconsideration could have been submitted." R. Vol. I, p. 178. Ms. Tidwell claimed, on
reconsideration, that the 14-day time period in Rule I 64 did not start running on August 8, 20 I 7.
Instead, she argues, the 14 days for filing a funding request started running on the deadline for
filing petitions for reconsideration, 21 days after the final order (IDAPA 31.01.01.331.01 ), and as
a result, her request was timely. Ms. Tidwell's reading of Rule 164 ignores both the plain language
of the Rule and common sense. Her argument assumes that, because a party might have submitted
a brief, proposed order, or statement of position anytime during the 21 day reconsideration period,
intervenor-funding requests were automatically due 14 days after the 21 day period had run, not
at an earlier date. This interpretation would mean that funding requests could never be due 14
days after the evidentiary hearing, making that provision of Rule 164 superfluous. See, Ameritel
Inns, Inc. v. Pocatello-Chubbuck Auditorium or Cmty. Ctr. Dist., 146 Idaho 202, 204, 192 P.3d
1026, 1028 (2008) (In determining the ordinary meaning of a statute effect must be given to all the
words of the statute if possible, so that none will be void, superfluous, or redundant).
As a factual matter, in this case, no subsequent briefs, proposed orders, or position papers
were ordered or filed. Accordingly, the evidentiary hearing was the "last" event under Rule 164,
and appropriately started the clock ticking. Moreover, any doubt about the plain language of the
Rule was quashed by the meeting chair's statement on the record that intervenor-funding requests
were due within 14 days of the hearing.
Had a party submitted any additional filings, such as a petition for reconsideration of a final
order, the Commission could consider subsequent funding requests for costs incurred during the
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subsequent phases of the proceeding, even when filed past the initial 14-day time period. In such
cases, the time period for the subsequent filing starts running upon the "last" applicable event listed
in Rule 164. See, Building Contractors Ass 'n of Sw. Idaho v. Idaho Pub. Util. Comm '11, 151 Idaho
10, 253 P.3d 684 (2011) (acknowledging Commission denied first application as untimely but
considered second application for costs incurred during reconsideration phase). In this way, the
Commission gives effect to the entirety of Rule 164 and protects intervenors by not foreclosing
subsequent or additional funding requests if a case moves into subsequent phases beyond issuance
of a final order. Adopting Ms. Tidwell's position would eliminate the possibility that the time
period could start running at the close of the evidentiary hearing, which the Rule plainly allows.
Ms. Tidwell also asserted in her petition for reconsideration that the Commission failed to
"provide a full and fair representation in the proceedings to all affected customers" by "failing to
provide adequate information" about Idaho Code§ 61-617A to intervenors prior to the September
15, 2017 final order in the underlying case. R. Vol. I, p. 178. Ms. Tidwell misstates the statute.
Idaho Code § 61-617A states that Idaho's policy is to encourage participation in Commission
proceedings so all affected customers receive full and fair representation in the proceedings. The
statute furthers this policy by providing the Commission discretion to order a utility to pay some
or all of the costs of intervenors that apply, up to a cap, after taking into account certain
considerations. Idaho Code § 61-617 A(2). The statute thus encourages participation so all
affected customers receive full and fair representation by allowing intervenors an opportunity to
defray the costs they incurred by participating. The statute does not, as Ms. Tidwell asserts, require
the Commission to provide such representation to customers. Indeed, Ms. Tidwell was represented
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by counsel at the evidentiary hearing. Further, Ms. Tidwell has not claimed or shown that her or
her counsel's alleged lack of knowledge or understanding about the intervenor-funding statute
somehow discouraged her from participating or being fully represented in the underlying
proceeding. Thus, there is no evidence to suggest that the policy behind the statute was somehow
undermined in this case.
Ms. Tidwell further claimed, in her petition for reconsideration, that the Commission has
the "burden to explain" the intervenor-funding mechanism to her and to her counsel. R. Vol. I, p.
l 78. Ms. Tidwell provided no authority for this bald assertion. In Greenfield v. Smith, 162 Idaho
246,253,395 P.3d 1279, 1286 (2017), a prose litigant in a legal malpractice case argued that the
trial court had a duty to explain to her the effects of a motion for summary judgment. The Idaho
Supreme Court disagreed, stating the well-established rule that pro se litigants are not accorded
any special consideration and are not excused from procedural rules. Id. If courts do not have to
explain legal principals and procedures to litigants, then administrative agencies, such as the
Commission, similarly have no duty to explain statutes and rules to represented participants, let
alone to their counsel. Accordingly, Ms. Tidwell's assertion that the Commission had a burden to
explain Idaho Code § 61-617 A and Rule 164 to her and her counsel is meritless. For the foregoing
reasons, the Commission's denial of Ms. Tidwell's petition for reconsideration should be affirmed.
B. Ms. Tidwell Has Waived the Remaining Arguments in Her Appeal Because She Did
Not Raise Them Below.
Ms. Tidwell raised the issues discussed in Section A, above, when she petitioned the
Commission to reconsider its denial of her intervenor-funding request. She has also raised them
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here as part or all of her first and fourth issues on appeal. Apart from those issues, however, Ms.
Tidwell failed to raise these issues in her petition for reconsideration before the Commission. Ms.
Tidwell now adds four new issues and arguments on appeal. These include:
( 1) The Commission had to e-mail or mail her a written notice that intervenor-funding
requests would be mentioned at the final evidentiary hearing on August 8, 2017, and
that they would be due 14 days after the hearing. Ms. Tidwell raises this issue as part
of her first issue on appeal -that the Commission failed to adequately notify her when
funding requests were due. See Appellant's Br. at 7;
(2) The Commission acted arbitrarily, capriciously, and abused its discretion by denying
her intervenor-funding request as untimely when it previously granted intervenor
funding to a late petitioner in another. This issue is Ms. Tidwell's second issue on
appeal. See Appellant's Br. at 5, 9-12;
(3) The Commission "violated" Idaho Code § 61-617A by denying Ms. Tidwell's
intervenor-funding request under Rule 164. This is Ms. Tidwell's third issue on appeal.
See Appellant's Br. at 5, 12-13; and
(4) Intervenor-funding Rule 164 is unconstitutionally vague. This is Ms. Tidwell's fifth
issue on appeal. See Appellant's Br. at 5, 14-16.
The Court should decline to consider these four issues because Ms. Tidwell is raising them
for the first time on appeal. It is well-settled that, in an appeal from the Commission, matters may
not be raised for the first time on appeal. Objections that were not raised before the Commission
in a petition for reconsideration, will not be considered for the first time by the Idaho Supreme
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Court. McNeal v Idaho PUC, 142 Idaho 685, 132 P.3d 442 (2006) (holding that, where the
appellant's petition for reconsideration at the Commission failed to raise a certain argument, the
"argument may not be raised for the first time on appeal"). "The rationale behind the rule is to
afford the [Commission] an opportunity to rectify any mistake before presenting the issue to the
Supreme Court." Eagle Water Co. v. Idaho PUC, 130 Idaho 314, 316-17, 940 P.2d I 133, 1135-36
( 1997). Here, Ms. Tidwell failed to present the four matters above to the Commission in her
petition for reconsideration. She thus deprived the Commission of its opportunity to rectify any
mistake before she appealed. Accordingly, the Court should decline to consider these issues here.4
Nonetheless, because Ms. Tidwell has raised these four new arguments here, in the sections
below the Commission shows why they fail.
1. Ms. Tidwell Had Adequate Notice of Idaho Code§ 61-617A and Rule 164.
Ms. Tidwell argues the Commission did not adequately notify her that intervenor-funding
requests were due on August 22, 2017, in part because the Commission did not e-mail or mail her
a written notice that funding requests would be mentioned at the final evidentiary hearing on
August 8, 2017, and that they would be due 14 days after the hearing. Appellant's Br. at 7 (citing
ID APA 31.01.01.016 (Rule 16)). This argument fails because Ms. Tidwell assumes the hearing
chairman issued an "order" regarding the availability of intervenor funding and was, therefore,
4 An exception to the rule against appellate courts considering issues not raised below is that the Court may consider
constitutional issues for the first time on appeal if doing so is necessary for subsequent proceedings in the case.
Murray 11• Spalding, 141 Idaho 99, 101-02, 106 P.3d 425, 427-28 (2005). Although Ms. Tidwell raises a
constitutional challenge when arguing that Ruic 164 is unconstitutionally vague, because there arc no subsequent
proceedings in this case, the exception docs not apply. This Court should thus still decline to consider the vagueness
ISSUC.
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obligated to provide such order by mail or e-mail under Rule 16. Ms. Tidwell's assumption is
incorrect. Rule 16 does not apply, and the Commission did not have to issue a "notice" or "order"
relating to intervenor-funding requests. The words "notice" and "order" are terms of art used in
specific contexts throughout the Rules of Procedure of the Idaho Public Utilities Commission,
which specify when the Commission will issue a notice or order. See, e.g., ID APA 31.01.01.102
(notices issued and orders served in petition for declaratory order cases); IDAPA 31.01.01.123
(notice of application issued in rate cases); IDAPA 31.01.01.204 (orders in modified procedure
cases); IDAPA 31.01.01.212 (notice of prehearing conference).
In contrast, Rule 164 does not require the Commission to issue an order. In fact, Rule 164
states that "unless otherwise provided by order," intervenors must request funding no later than 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 APA 31.01.01.164. Unless the
Commission wishes to deviate from the timeframe in the Rule, it need not issue an order. The
hearing chairman's statement on the record of the due date for funding requests was not a notice
or an order, as those terms are used in the rules. Ms. Tidwell's assertion that the hearing
chairman's statement was the only way intervenors would have known of the availability of
intervenor funding, or of the deadline for such requests, is erroneous. The intervenor-funding
statute and Rule 164 speak for themselves. And, as explained above, the Commission did not
have to notify parties, intervenors, or counsel about the existence of the statute or the rule. Ms.
Tidwell and her counsel are charged with notice of both.
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This Court's rulings in cases involving requests for relief from final judgment provide
guidance here. For instance, in Washington v. Federal Sav. And Loan Ass 'n v Transamerica, 124
Idaho 913,856 P.2d 1004 (1993), the head of the Transamerica's litigation department mistakenly
believed that he had thirty days to respond to a complaint and missed the true deadline. Default
judgment was thus entered against Transamerica. When Transamerica sought relief from the
default judgment based on excusable neglect, this Court stated that "ignorance of the laws or rules
of procedure are generally inexcusable." Id. at 916-917. (citing 11. C. WRIGHT, A MILLER,
FEDERAL PRACTICE AND PROCEDURE§ 2858 p. 170 (I 973)). There was no confusion over
conflicting documents, statutes, or rules, "there was only a misinterpretation or ignorance of Idaho
law." Id. at 918,856 P.2d at 10IO (distinguishing Scl1rauf11agel v. Quinowski, 113 Idaho 753, 747
P.2d 775 (Ct.App. 1987)). The Court cited several additional cases for the proposition that "failure
to know and meet filing deadlines are inexcusable mistakes of law." Id. citing Gro-Mor Inc., v.
Butts, 109 Idaho 1020, 712 P.2d 721 (Ct.App. 1985); Hearst Corporation v. Keller, 100 Idaho 10,
592 P.2d 66 ( 1979) reversed on other grounds; Newbold v. Arvidson, l 05 Idaho 663, 672 P.2d 231
( 1983). Similarly, in several other types of civil cases, this Court has held that a lawyer's mistake
of law is an insufficient basis upon which to reverse a lower court's order. See, Dami v. Danti,
146 Idaho 929, 941--42, 204 P.3d 1140, 1152-53 (2009) (In child custody case, "well-settled rule
in Idaho that the negligence, mi-stakes, or unskillfulness of counsel do not provide a basis for setting
aside a civil judgment"); Esser Elec. v. Lost River Ballistics Techs., Inc., 145 Idaho 912,917, 188
P.3d 854, 859 (2008) (In real property case, "equity will not relieve against a judgment at law on
account of any ignorance, unskillfulness, or mistake of the party's attorney (unless caused by the
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opposite party) nor for counsel's negligence or inattention"); Do110\la11 v. Miller, 12 Idaho 600,605,
88 P. 82, 84 (l 906) (In contract case, .. it is well established that a mistake or unskillfulness of an
attorney is not sufficient to authorize an injunction to issue to restrain the enforcement of a
judgment at law"). Similarly, here, the Commission did not have to give Ms. Tidwell or her
counsel notice of the statute or Rule, and her lack of knowledge of the statute or Rule does not
mean that the Commission must excuse her noncompliance.
2. Tlze Commission Did Not Act Arbitrarily or Capriciously.
For her second issue on appeal, Ms. Tidwell argues that the Commission acted arbitrarily,
capriciously, and abused its discretion by denying her intervenor-funding request as untimely.
Appellant's Br. At 5, 9-12. In support of her argument, Ms. Tidwell points out that the Commission
has previously granted intervenor funding to a late petitioner in a different, unrelated case. Id. at
9. As noted above, Ms. Tidwell failed to raise this issue below. She thus deprived the Court of an
adequate record on appeal to assess this claim. For example, the record on appeal does not contain
the Commission's order from the prior case, or reveal whether the Commission found the prior
petition was late but that the petitioner had extenuating circumstances justifying the late filing, or
whether the Commission simply did not recognize the prior petition was late and awarded
intervenor funding assuming it was timely. Ms. Tidwell has offered this Court no basis upon
which to review her claim that the Commission acted arbitrarily, capriciously, and with an abuse
of discretion when it denied her late funding request despite having previously accepted a another
intervenor's late funding request in an unrelated case. Therefore, her argument fails.
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Finally, Ms. Tidwell's argument that the Commission's denial of her untimely request is
not sustainable because the decision was "based solely on timing" is simply nonsensical, and
therefore must be rejected.
3. The Commission Did Not Violate Idaho Code§ 61-617A.
For her third issue on appeal, Ms. Tidwell argues that the Commission "violated" Idaho
Code § 61-617 A by denying Ms. Tidwell' s intervenor-funding request under Rule 164.
Appellant's Br. at 5, 12-13. The gist of this argument seems to be that Rule 164, which sets the
timeframe for intervenor-funding requests under Idaho Code § 61-617 A, is "complex,"
"unknown," and "tricky." Id. This argument fails because it essentially rehashes Ms. Tidwell's
prior argument that neither she nor her counsel knew of Rule 164. As stated above, however, this
Court has consistently held that ignorance of the laws or rules of procedure are generally
inexcusable. Washington v. Federal Sav. And Loan Ass'n v Transamerica, 124 Idaho at 918,856
P.2d at 1009. Ms. Tidwetrs argument that the Rule is unknown or complex is also belied by the
fact that another intervenor filed a timely intervenor-funding request, which the Commission
considered and ruled on. R. Vol 1, p.136-142; 158-159. Ms. Tidwell has not shown that her ability
to intervene and meaningfully participate in the underlying case was hampered by the denial of
her late request for intervenor funding. Accordingly, the Commission's application of Rule 164
did no violence to the policy underlying Idaho Code § 61-617 A.
4. Rule 164 ls Not Vague.
Ms. Tidwell's fifth argument on appeal is that Rule 164 is unconstitutionally vague. See
Appellant's Br. At 5, 14-16. Ms. Tidwell's vagueness argument fails. When a constitutional
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challenge is made, every presumption is in favor of the constitutionality of the regulation, and the
burden of establishing unconstitutionality rests upon the challenger. Lindstrom v. Dist. Bd. of
Health Panhandle Dist. I, 109 Idaho 956, 959, 712 P.2d 657,660 (Ct. App. 1985). The void for
vagueness doctrine was defined as follows in Wyckoff v. Board of County Commissioners of Ada
County, 101 Idaho 12, 15,607 P.2d 1066, 1069 (1980):
[A] statute is unconstitutionally vague when its language does not convey
sufficiently definite warnings as to the proscribed conduct, and its language is such
that men [or women] of common intelligence must necessarily guess at its meaning.
H & V Eng'g, Inc. v. Idaho State Bd. of Prof/ Engineers & Land Surveyors, 113 Idaho 646,649,
747 P.2d 55, 58 ( 1987). Although most decisions invoking the "void for vagueness" doctrine deal
with criminal statutes and ordinances, the doctrine applies equally well to civil ordinances. Olsen
v. J.A. Freeman Co., 117 Idaho 706, 716, 791 P.2d 1285, 1295 (1990). "However, greater
tolerance is permitted when addressing a civil or non-criminal statute as opposed to a criminal
statute under the void for vagueness doctrine." Id. (citing Chalmers v. City of Los Angeles, 762
F.2d 753 (9th Cir.1985)); Cowan v. Bd. ofComm'rs of Fremont Cty., 143 Idaho 501, 513-14, 148
P.3d 1247, 1259-60 (2006). Ms. Tidwell has not met her burden to overcome the presumption of
constitutionality.
Because Ms. Tidwell's argument does not implicate constitutionally protected conduct
(such as free speech or freedom of association) she must show that Rule 164 is impermissibly
vague in all of its applications. Lindstrom v. Dist. Bd. of Health Panhandle Dist. I, 109 Idaho 956,
960, 712 P.2d 657,661 (Ct. App. 1985). Failing that, she must show that Rule 164-as applied to
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her-is impermissibly vague. Id. Ms. Tidwell's arguments do not meet her burden. Rule 164 is
not vague. Another intervenor successfully and timely applied for intervenor funding, which belies
any argument that a person of common intelligence had to guess at its meaning. See R. Vol I,
p.136-142; 158-159. Additionally, the reasons that Ms. Tidwell gives for filing her funding request
late are: I) she was not aware of the possibility of intervenor funding, 2) her funding request was
late due to a lack of communication, 3) the request was actually timely, 4) the Commission had a
duty to provide information about intervenor funding, and 5) her attorney thought that only non­
profits could ask for funding. Id., p. 164-165; 178-179. None of these reasons, even if true, relate
to the language of Rule 164 being either facially vague, or vague as applied to her. Rather, they
merely evidence an ignorance of the existence of the Rule or a misreading of its substance.
Additionally, the fact that a petition for reconsideration could create more than one opportunity
for intervenor funding does not make the rule vague. See, Building Contractors Ass '11 of Sw. Idaho
v. Idaho Pub. Util. Comm'n, 151 Idaho 10, 253 P.3d 684 (2011) (acknowledging Commission
denied first intervenor-funding request as untimely but considered second request for costs
incurred during reconsideration phase). As discussed previously, the Rule gives effect to the
intervenor funding statute. In conclusion, Ms. Tidwell has not met her burden to show that Rule
164 is unconstitutionally vague.
C. Ms. Tidwell Is Not Entitled to Attorney Fees on Appeal.
Ms. Tidwell seeks attorney fees on appeal under: l) the private attorney general doctrine,
2) Idaho Code§ 12-117, 3) Idaho Code§ 61-617A, and 4) Idaho Appellate Rule 40. Each of these
bases for award of attorney fees is without merit.
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1. Ms. Tidwell ls Not Entitled to Attorney Fees Under the Private Attomey General
Doctrine.
Idaho is an "American Rule" state requiring "each party to bear their own attorney fees
absent statutory authorization or contractual right." Owner-Operator Independelll Drivers Ass'n
v. Idaho PUC, 125 Idaho 40 I, 407, 871 P.2d 818, 824 ( 1994 ); Heller v. Cenarrusa, I 06 Idaho 571,
578, 682 P.2d 524, 531 (1984). The private attorney general doctrine allows for an award of
attorney fees when a civil action "meets three specific requirements: ( 1) great 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; and (3) the number of people standing
to benefit from the decision." Owner-Operator, 125 Idaho at 408, 871 P.2d at 825; Heller, 106
Idaho at 578, 682 P.2d at 531 . In Kootenai Medical Celller v. Bonner County Com 'rs, this Court
held that the private attorney general doctrine is not available to award attorney fees against the
State. 141 Idaho 7, 10, 105 P.3d 667,670 (2004), citing State v. Hagen11a11 Water Right Owners
("HWRO"), 130 Idaho 718,947 P.2d 391 (1997) abrogated on other grounds by Syringa Networks,
LLC v. Idaho Dept. of Admin. 155 Idaho 55, 305 P.3d 499 (2013). As the Court explained in
HWRO, the private attorney general doctrine arises from the authority of Idaho Code § 12-121 ...
. " 130 Idaho at 725, 947 P.2d at 398. However, this Court has stated that Section 12-121 "does
not ... authorize an award of attorney fees on appeal of an agency ruling. " Duncan v. State Bd.
of Accountancy, 149 Idaho 1, 6,232 P.3d 322,327 (2010).
Second, even if the private attorney general doctrine applied, Ms. Tidwell has not satisfied
the first and third elements of the doctrine. The first element requires that the litigation be pursued
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to benefit the public, rather than to protect private pecuniary interests. HWRO, 130 Idaho at 726,
947 P.2d at 399. In HWRO, this Court noted that if a party is protecting its own economic interests,
it cannot claim it is a public interest litigant. Id. at 726, 947 P.2d at 399. In this case, Ms. Tidwell
seeks compensation for her attorney fees as an intervenor in a Commission case. Her only
expressed interest in the underlying case is a private pecuniary interest related to her real property.
R. Vol. I at 43-46; 164; 178-179. Thus, no public benefit exists.
Finally, the third element of the private attorney general doctrine -regarding the number
of people standing to benefit from the decision -is not met in this case. In Owner-Operator, the
Court found that the number of people standing to benefit was insufficient to justify an award of
attorney fees . 125 Idaho at 408, 871 P.2d at 825. In Owner-Operator, a class action suit was
brought against the Commission on behalf of "tens of thousands of motor carriers" operating in
Idaho. Plaintiffs Brief, 1993 WL 13141746 at 36 (Idaho). If the Court found that the tens of
thousands of motor carriers were "insufficient to justify an award of attorney's fees," then Ms.
Tidwell's claim solely on her own behalf cannot meet this prong of the private attorney general
doctrine to justify an award of attorney fees on appeal. For these reasons, Ms. Tidwell's request
for attorney fees under the private attorney general doctrine must be denied.
2. Ms. Tidwell Is Not E11titled to Attorney Fees 011 Appeal Under Idaho Code§ 12-117.
Idaho Code§ 12-117 allows a prevailing party to recover reasonable attorney's fees against
a "state agency" if the nonprevailing party acted without a reasonable basis in law or fact. This
statute cannot be used to award fees against the Commission, because the Commission is not a
"state agency" under the statute. Notably, Idaho Code§ 12-1 l 7(5)(d) specifies that "[f]or purposes
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of this section: ... (d) "State agency" means any agency as defined in section 67-5201, Idaho
Code." In turn, Idaho Code § 67-5201 (I) specifically excludes agencies of the legislative branch
from the "state agency" definition. This Court has long held that the Idaho Public Utilities
Commission is a legislative agency not falling within the "state agency" definition in Idaho Code
§ 67-5201(1). A. W. Brown Co., Inc. v. Idaho Power Co., 121 Idaho 812,819,828 P.2d 841 ,848
( 1992); Owner-Operator lndep. Drivers Ass'n, Inc. v. Idaho Pub. Utilities Comm '11, 125 Idaho 401,
407-08, 871 P.2d 818, 824-25 (1994). Despite these long-standing decisions, when the
Legislature amended Idaho Code § 12-117 in 2010, it did not change the definition or scope of
"state agency" found in Section 12-117(5)(d). When the Legislature amends a statute it is
presumed to have full knowledge of existing judicial decisions and case law. Hook v. Homer, 95
Idaho 657, 661, 517 P.2d 554, 558 (1973); Ultrawall v. Washi11gto11 Mut. Bank, 135 Idaho 832,
836, 25 P.3d 855, 859 (2010). And when it amended Section 12-117, it presumably knew that the
statute did not apply to the Commission. The Legislature nevertheless declined to change it to
include the Commission.
Even if Idaho Code § 12-117 applied, the Commission has acted with a reasonable basis in
law and in fact. The Commission followed the plain language of Rule 164 in denying Ms.
Tidwell's late intervenor-funding request. Thus, the Commission had a reasonable basis in law
for its decision and for defending the decision on appeal. The Commission also had a reasonable
basis in fact for rejecting Ms. Tidwell's request. Those facts were set forth in Ms. Tidwell's
funding request and petition for reconsideration, which the Commission considered in its decisions
below. R. Vol. I, p. 76; 18 l. The Commission appropriately concluded that the facts that Ms.
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Tidwell provided did not excuse her late filing and provided its reasons in its orders. The
Commission thus had a reasonable basis in fact for the decision below and for defending its
decision on appeal. The Court thus should not award attorney fees under Idaho Code § 12-117.
3. Ms. Tidwell Cannot Use TJ,is Forum to Obtain llltervenor Funding.
Ms. Tidwell requests this Court to award her intervenor costs as part of her appeal.
Appellant's Br. at 19-20. Such an award is not available. Even assuming, for the purposes of this
argument only, that Ms. Tidwell has satisfied the criteria for awarding intervenor funding as set
forth in Idaho Code § 61-617 A, this Court cannot award such funding in the first instance. Idaho
Code § 61-617 A states, "The Commission may order .... " (Emphasis added). This Court may only
review the Commission's substantive decisions on intervenor funding under an abuse of discretion
standard. Building Contractors Ass '11 of Sw. Idaho v. Idaho Pub. Util. Comm '11, 151 Idaho 10, 18,
253 P.3d 684,692(2011). Here, the Commission made no substantive decision on the merits of
Ms. Tidwell's intervenor-funding request, or the reasonableness of her requested attorney fees, so
there is no decision for this Court to review. Additionally, other parties and intervenors in the
underlying case must be afforded the opportunity to oppose intervenor funding. IDAPA
31.01.01.164. This has not occurred. An appeal to this Court is not a substitute for the procedure
set forth in Idaho Code § 61-617 A and Rule 164. The Court cannot award attorney fees on this
basis.
4. Ms. Tidwell ls Not Entitled to Attomey Fees U11der Idaho Appellate Rule 40.
Appellate Rule 40 provides the procedure for allowing costs on appeal to the prevailing
party. It is not a basis for attorney fees. If the Court gives Ms. Tidwell the benefit of the doubt
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and considers her request under Appellate Rule 41, not Appellate Rule 40, the request must still
be rejected. This Court has repeatedly held that a reference to Rule 41 is not sufficient by itself to
properly request an award of attorney fees on appeal. Bream v. Benscoter, 139 Idaho 364, 79 P.3d
723 (2003). The requesting party must point to a statute or contractual provision authorizing such
award. State ex rel. Wasden v. Daicel Chem. Indus., Ltd., 141 Idaho 102, 109, 106 P.3d 428,435
(2005). Because none of the other bases cited by Ms. Tidwell have merit as a basis for attorney
fees on appeal, the Court should reject this basis as well.
V. CONCLUSION
Ms. Tidwell's petition for reconsideration did not establish that the Commission's order on
her petition for reconsideration was unreasonable, unlawful, erroneous, or not in conformity with
the law, as argued in Section IV.A, above The remainder of Ms. Tidwell's arguments were not
raised below and should not be considered on appeal. Even if they are considered, the Commission
still prevails. Ms. Tidwell is not entitled to attorney fees on appeal.
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The Commission requests that the Court deny Ms. Tidwell's appeal and affirm Order No.
33928.
RESPECTFULLY submitted this $ay of May, 2018.
---------.•. _
Karl T. Klein
Deputy Attorneys General
Attorneys for the
Idaho Public Utilities Commission
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CERTIFICATE OF SERVICE
I hereby certify that on the ~ day of May, 2018, I served a true and correct copy of
the foregoing document by the method indicated below, and addressed to each of the following:
Samuel L. Linnet
Linnet Law Office
115 Second A venue South
Hailey, Idaho 83333
Donovan E. Walker
Idaho Power Company
PO Box 70
Boise, Idaho 83707-0070
RESPONDENT BRIEF OF THE
_.,{_ U.S. Mail, Postage Prepaid
Hand Delivered ----Overnight Mail
___L_ E-Mail sam@.linnctlmv.com
_L_ U.S. Mail, Postage Prepaid
Hand Delivered ----Overnight Mail
~ E-Mail dwalkerwl.idahopower.com
[e-mail]
IDAHO PUBLIC UTILITIES COMMISSION 27