Bear Gulch Solar et al v. Montana Public Service Commission et al

Filing 51

ORDER setting hearing on SJ motions 9/5/2018, at 10:00 a.m., Courtroom II, USDC, Helena; Answer deadline 6/27/2018; any cross-motion SJ deadline 6/27/2018; denying 29 Motion to Stay; denying 29 Motion to Dismiss for Lack of Jurisdiction; denying 29 Motion to Dismiss for Failure to State a Claim; granting 39 Motion for Extension of Time to File Response/Reply re 35 MOTION for Summary Judgment (Responses due by 6/27/2018, Replies due by 7/11/2018, Motions ripe 7/11/2018); denying 41 Motion for Abeyance. Signed by Judge Charles C. Lovell on 6/5/2018. (MKB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

BEAR GULCH SOLAR, LLC, et al.,

CV 18–6–H–CCL

Plaintiffs,
ORDER

vs.
MONTANA PUBLIC SERVICE
COMMISSION, et al.,
Defendants.

Before the Court are Defendants’ “Partial Motion to Dismiss and Motion for
Stay” (ECF No. 29) and “Motion to Hold in Abeyance Plaintiffs’ Motion for
Summary Judgment” (ECF No. 41). The motions came on for hearing on June 5,
2018. Ms. Jennifer Selendy, Mr. Daniel Mach, and Mr. William Mercer appeared
on behalf of Plaintiffs. Mssrs. Justin W. Kraske and Jeremiah Langston appeared
on behalf of Defendants. The Court has reviewed the parties briefs and received
their arguments and is prepared to rule.

This is a private enforcement action pursuant to the Public Utility
Regulatory Policies Act of 1978 (“PURPA”), Pub.L. 95–617, 92 Stat. 3117. In
their Rule 12(b)(1) motion, the Defendants assert that the Court lacks subject
matter jurisdiction to grant a portion of the relief sought by Plaintiffs, namely, a
declaratory order directing Defendants to allow any QFs that satisfied the
appropriate “legally enforceable obligation” standard on or before June 16, 2016,
to sell their output under the “Prior QF-1 Tariff.” However, it is clear that
Plaintiffs’ singular implementation claim pursuant to PURPA does provide this
Court with subject matter jurisdiction. 16 U.S.C. § 824a-3(h)(2)(B). While it is
not necessarily clear that all of the relief sought by Plaintiffs is available to them
under PURPA, the Court finds that it is at least plausible that all of the relief
sought by Plaintiffs might be available. This relief might be viewed as flowing
naturally from Plaintiffs’ implementation claim and would not require any
technical effort by the Court (such as a rate setting). The relief sought may be
available under the heading “other relief as may be appropriate.” 16 U.S.C. §
824a-3(h)(2)(B). In any event, any right to such relief can be better decided in the
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future in the context of a complete record rather than at this early stage of the
proceedings.
Defendant’s motion for stay pending proceedings is designed to permit
Defendants to conduct a parallel administrative rulemaking, with perhaps the goal
of mooting this litigation. However, Plaintiffs question whether the proposed
rulemaking will result in a standard that satisfies PURPA. The Court notes also
that Defendants could have begun their amendment process as early as January,
2017, after the Federal Energy Regulatory Commission issued its declaratory order
on December 15, 2016. FLS Energy, Inc., 157 FERC 61,211 (2016). Instead,
Defendants waited for over a year, until two months after Plaintiffs filed this
litigation, to propose a new rulemaking process. In the meantime, Plaintiffs claim
that they are suffering continuing economic damage by being subjected to an
invalid rule. Under these circumstances, and in view of the Supreme Court’s
decision in Landis v. N. Am. Co., 299 U.S. 248, 255 (1936), that parallel
administrative proceedings are insufficient justification for a stay if one party
could be harmed by the delay, the sounder plan is to forge straight ahead with this
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litigation.
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Partial Motion to Dismiss and
Motion to Stay (ECF No. 29) are both DENIED.
IT IS FURTHER ORDERED that Defendants’ Motion to Hold in Abeyance
Plaintiffs’ Motion for Summary Judgment (ECF No. 41) is DENIED.
IT IS FURTHER ORDERED that Defendants shall file their Answer,
response to Plaintiffs’ summary judgment motion, and any Defendants’ crossmotion for summary judgment on or before June 27, 2018.
There appearing to be no triable issues of fact, the Court sets down hearing
on summary judgment motions on Wednesday, September 5, 2018, at 10:00 a.m.,
in Courtroom II, U.S. District Courthouse, Helena.
Dated this 5th day of June, 2018.

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