BEFORE THE PUBLIC UTILITIES COMMISSION
OF THE STATE OF COLORADO
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DELTA-MONTROSE ELECTRIC
ASSOCIATION,
COMPLAINANT,
V.
TRI-STATE GENERATION AND
TRANSMISSION ASSOCIATION, INC.,

Colorado PUC E-Filings System

RESPONDENT.

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PROCEEDING NO. 18F-0866E

MOTION REQUESTING THE COMMISSION ESTABLISH A PROCEDURAL
SCHEDULE AND REQUEST FOR COMMISSION HEARING EN BANC

Pursuant to § 40-6-101(1), C.R.S., § 40-6-101(2)(b), C.R.S., § 40-6-108(4), C.R.S., 4
CCR 723-1-1302(c), 4 CCR 723-1-1404(a) and 4 CCR 723-1-1405(j), Complainant DeltaMontrose Electric Association (DMEA) moves the Colorado Public Utilities Commission
(Commission) to enter an order adopting a procedural schedule in this proceeding and granting a
Commission hearing en banc. In support of this motion, DMEA states as follows:
RULE 1400 CONFERRAL
Pursuant to Rule 1400(a), on December 10, 2018, counsel for DMEA conferred with
counsel for Tri-State Generation and Transmission Association, Inc. (Tri-State), who indicated
that Tri-State opposes the motion. Tri-State does not agree with the proposed schedule or the
relief requested in this Motion and is not prepared to agree to a procedural schedule at this time.

 INTRODUCTION
1.

On December 6, 2018, DMEA filed its Complaint against Tri-State.

The

allegations of the Complaint are incorporated herein by reference. The Commission issued an
Order to Satisfy or Answer on December 10, 2018, and Tri-State must respond by December 31,
2018. In addition, the Commission issued a Notice of Hearing on December 10, 2018 setting
this matter for hearing on February 19, 2019.
2.

As detailed in the Complaint, this proceeding follows DMEA’s efforts over two

years to exercise its right to withdraw from Tri-State and allow DMEA to pursue more economic
and cleaner power supply alternatives.

Tri-State’s prescribed exit charge for withdrawal,

however, is unjust, unreasonable, and discriminatory. DMEA accordingly requests that the
Commission establish a just, reasonable, and nondiscriminatory exit charge, consistent with the
Commission’s statutory authority and mandate under Colorado Public Utilities Law (Articles 1
through 7 of Title 40, C.R.S.)
3.

Colorado Public Utilities Law provides that the Commission “shall conduct its

proceedings in such manner as will best conduce the proper dispatch of business and the ends of
justice.” 1 The length of time DMEA has already been engaged in the withdrawal and exit charge
process underscores the importance of timely adjudicating the relief requested in the Complaint
and for the Commission to provide a just, reasonable, and nondiscriminatory exit charge.
Accordingly, DMEA requests through this motion that the Commission act to establish a
procedural schedule. The Commission will often wait until after a respondent in a formal
complaint proceeding files its answer before setting a full procedural schedule.

However,

establishing a procedural schedule at the outset, with the filing of testimony commencing in
February 2019, is warranted to provide for the timely resolution of this proceeding. Further, the
1

§ 40-6-101(1), C.R.S.

2

 proposed schedule set forth below allows time for preliminary motion practice, should Tri-State
file any such motions. The proposed schedule also assumes the Commission will ultimately
move the February 19, 2019 hearing date to accommodate a longer procedural schedule with prefiled testimony, statements of position, and an evidentiary hearing on the Complaint, consistent
with Commission practice.
4.

Finally, this motion requests that the Commission hear this matter en banc.

DMEA respectfully submits that given the key legal and policy questions at issue in the
Complaint and the potential impact on DMEA’s retail member-owners, it is appropriate for the
Commission to designate this proceeding as one to be heard en banc.
LEGAL STANDARD AND REQUESTS FOR RELIEF
I.

Request for a Procedural Schedule
5.

Rule 1302(c) provides that “[t]he Commission may expedite a formal complaint

proceeding on its own motion or upon the motion of a party if such motion shows good
cause [].” 2 If the Commission determines to expedite a formal complaint, it shall establish the
expedited procedural schedule, including hearing dates, and may impose appropriate limits on
discovery. 3
6.

Section 40-6-108(4), C.R.S. provides that the Commission shall hold a hearing

and issue a final order in complaint cases within 210 days after the filing of testimony and
exhibits by the Complainant. 4 In addition, Rule 1405(j) specifies that in complaint proceedings,
parties shall file and serve their testimony “as ordered by the Commission,” 5 reinforcing the
Commission’s discretion to set procedural deadlines in complaint cases.

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4 CCR 723-1-1302(c).
4 CCR 723-1-1302(c)(I)-(II).
§ 40-6-108(4), C.R.S.
4 CCR 723-1-1405(j).

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 7.

DMEA proposes the following procedural schedule in this proceeding:

Proposed Procedural Schedule
Date

Procedural Activity

February 1, 2019

DMEA files Direct Testimony (initiating 210-day statutory timeline,
which will conclude August 30, 2019)

March 18, 2019

Respondent Tri-State files Answer Testimony

April 17, 2019

DMEA files Rebuttal Testimony

May 8-13, 2019

Evidentiary Hearing

May 23, 2019

Statements of Position Due

July 11, 2019

Commission Decision

July 31, 2019

Applications for Rehearing, Reargument, or Reconsideration Due

August 30, 2019

Commission RRR Decision (if any)

8.

DMEA notes this procedural schedule is not “expedited” per se; rather, it fits the

entire process into a 210-day period from the filing of direct testimony, consistent with § 40-6108(4), C.R.S. Nevertheless, it is expedited in the sense that DMEA requests the Commission
establish a procedural schedule now. Setting a date certain for the filing of direct testimony will
allow DMEA to continue to prepare and file expert and related testimony in order to assist the
Commission in adjudicating a just, reasonable, and nondiscriminatory exit charge.
9.

It is appropriate to establish this procedural schedule now, given the likelihood of

preliminary motion practice by Tri-State. This proposed procedural schedule is intended to
accommodate, to some degree, such motion practice. DMEA understands that Commission
decisions on any such preliminary motion may not issue by February 1, 2019, given that the
Order to Satisfy or Answer issued December 10, 2018, and Tri-State’s answer or any other
dispositive briefing will not be filed until December 31, 2018. Nevertheless, DMEA is prepared
and willing to undertake the expense and effort required to develop and file its direct case by
4

 February 1, 2019. As discussed above, DMEA has tried for more than two years, without
success, to obtain a just, reasonable, and nondiscriminatory exit charge from Tri-State. Time is
accordingly of the essence, and DMEA therefore wants to advance this proceeding in as efficient
a manner as possible.
10.

Under DMEA’s proposed procedural schedule, the Commission would issue a

decision by July 11, 2019. The proposed procedural schedule also accounts for any applications
for Rehearing, Reargument, or Reconsideration (RRR) that may be filed following the
Commission’s decision. DMEA therefore respectfully requests that the Commission issue its
decision in this proceeding by July 11, 2019. This procedural schedule spans 210 days and fits
within the statutory limit imposed by § 40-6-108(4), C.R.S.
II.

Request for Commission Hearing En Banc
11.

Under Colorado law, the Commission is vested with the authority to “conduct its

proceedings in such a manner as will best conduce the proper dispatch of business and the ends
of justice.” 6 Under § 40-6-101(2)(b), C.R.S., every case submitted to the Commission for
adjudication shall first be heard by an administrative law judge (ALJ) “unless the Commission,
by minute order, assigns the case to the commission [] for hearing.” 7 Rule 1404(a) similarly
provides that “unless the Commission orders otherwise, all matters submitted to the Commission
for adjudication shall be referred to a hearing Commissioner or an Administrative Law Judge.” 8
Both the statute and the rule give the Commission power to assign a proceeding for hearing by
the full Commission, rather than an ALJ. Because this case involves important legal and policy
issues for the future of energy supply in Western Colorado, and because time is of the essence in

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§ 40-6-101(1), C.R.S.
§ 40-6-101(2)(b), C.R.S. (emphasis added).
4 CCR-723-1-1404(a) (emphasis added).

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 determining the future of power supply for DMEA’s retail member-owners, it is appropriate for
the Commission to hear the merits of DMEA’s Complaint en banc.
WHEREFORE, DMEA respectfully requests that the Commission issue an order
adopting the procedural schedule set forth in this motion and determining that it will hear this
proceeding en banc.
DATED this 10th day of December, 2018.

Respectfully submitted,
/s/ Matthew S. Larson
Raymond L. Gifford, #21853
Matthew S. Larson, #41305
Wilkinson Barker Knauer LLP
1755 Blake Street, Suite 470
Denver, Colorado 80202
Phone: (303) 626-2350
Email: rgifford@wbklaw.com
mlarson@wbklaw.com
ATTORNEYS FOR DELTA-MONTROSE
ELECTRIC ASSOCIATION

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 CERTIFICATE OF SERVICE
I hereby certify that on this 10th day of December 2018, a copy of the foregoing MOTION
REQUESTING THE COMMISSION ESTABLISH A PROCEDURAL SCHEDULE AND
REQUEST FOR COMMISSION HEARING EN BANC was filed with the Colorado Public
Utilities Commission via e-file and a copy was served via e-mail to the following:
Doug Dean
Cindy Schonhaut
Tom Dixon

doug.dean@state.co.us
cindy.schonhaut@state.co.us
thomas.dixon@coag.gov

Ken Reif

kreif@tristategt.org

Rick Gordon

rick.gordon@tristategt.org

Tom Dougherty

tdougherty@lrrc.com

Jasen Bronec
Raymond Gifford
Matthew Larson

jasen.bronec@dmea.com
rgifford@wbklaw.com
mlarson@wbklaw.com

Colorado Public Utilities Commission
Colorado Office of Consumer Counsel
Colorado Office of Consumer Counsel
Tri-State Generation and Transmission
Association, Inc.
Tri-State Generation and Transmission
Association, Inc.
Tri-State Generation and Transmission
Association, Inc.
Delta-Montrose Electric Association
Delta-Montrose Electric Association
Delta-Montrose Electric Association

/s/ Hannah Bucher
Hannah Bucher

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