ML17209B117

Order That Listed Facts Are W/O Substantial Controversy & Are Deemed Established.Listed Principals of Law Applicable to Proceeding.Plaintiff Request for Order Limiting Discovery Denied W/O Prejudice.Certificate of Svc Encl

ML17209B117
Person / Time
Site:	Saint Lucie
Issue date:	05/18/1981
From:	Lucas M U.S. DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
To:
Shared Package
ML17209B115	List: ML17209B114 ML17209B116 ML17209B117 ML17209B118 ML17266A459 ML17266A460
References
CV078-810-MML, CV78-810-MML, NUDOCS 8105290158
Download: ML17209B117 (10)

Text

ATTACHMENT 5

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CZTZES OF ANAHELM', RIVERSIDE, ) NO. CV-78-8 10-PAL BANNING, COLTON and AZUSA, )

12 CALIFORNIA, )

) ORDER SPECIFYING CERTAZN Plaintir fs, ) FACTS TO BE WITHOUT,

) SUBSTANTIAL CONTROVEHSY, 14 v ~ ) AND REQUIRING FURTHER

) BRIEFING ON OTHER ISSUES SOUTHERN. CALZFORNIA EDISON )

COMPANY,: )

16 )

Defendant. )

17 .)

On February 3, 1981, plaintiffs filed a Motion to Adjudicate Certain Facts, to Limit the Issues to be. Tried, and to 20 Limit: the Scope of Discovery. After careful consideration of this motion, the memoranda and evidence submitted in supoort and in opoos'ion to the motion, the arguments or counsel for all parties, and the entire record in this action, the Court hereby Orders as follows:

1. Although this motion is characterized by plaintiffs 26 as a Rule 16 motion, the Court f'nds that plaintiffs'otion

. 27 shall be treated as a motion under Rule 56 of the Federal Rules or Civil Procedure either for summary judgment or for 8 yosp S015~

I an order- specifying certain facts to be without substantial 2 controversy. The Court finds that the defendant is not 3 prejudiced by this recharacterization. The defendant has fully argued, all of the issues presented in this motion, both orally and in writing, and has submitted voluminous evidence and affidavits in support of its position.

2. The following facts are without substantial contro-versy, and shall be deemed established for the purposes of'his action:

'0 I (a) BPA and other PQf entities have ha'd, and continue= to have, low-cost bulk powe. available for 12 sale to purchasers outside the PNM area. See Moody I3 testimony, at pp. IZ and 16; (b) The Cities, as public entities, have a federal statutory preference to BPA bulk power surplus energy 16 and surplus peaking capacity marketed outside the PNM 17 area. 16 U.S.C. 5832(c)(a); 16 U.S.C. 5837a; (c) Transmission facilities controlled by Edison 19 and others, known as the Pacific Intertie ("Intertie"),

20 extend from the PNM bulk power market and connect to 21 Edison's electric system. See Hoody testimony, at pp.

2~3 y (d) Access to the intertie is necessary in order for the cities to engage in bulk power transactions with the BPA or other PNU entities. See Plaintiffs'xhibit

~P6; 27 (e) Certain contracts ente. d into by Edison and 28 others gove. n access to the Zntertie and give Edison

and others the power to preclude the Cities from obtaining access to the intertie, subject to the ultimate authority of the FERC. See Plaintiffs'xhibits r'7-11; 16 U. S. C. 5824i; (f) The cities of Anaheim and Riverside have requested direct access to the Xnertie. The cities of Azusa, Banning, and Colton have not. See Plaintiffs'xhibits N13-16; (g) Qn August'8, 1973 and September ll, 1973, 10 P.G. 4 E. informed the cities of Anaheim and River side that it would not provide them, direct access to the 12 Intertie. See Plaintiffs'xhibit iP6 and 20; (h) Edison has informed the citIes of Anaheim and River side that it will not provide them direct access 15 to the Intertie. See Plaintiffs'xhibits ik21;24; and 16 (i) The Cities are dependent upon Edison for t

17 , transmission of bulk power supplies. See p.48 of Edison's memorandum in opposit'on.

19 3. The following principles of law are applicable to

.20 this action:

(a) The transmiss'on facilities known as the Pacific intertie cannot practicably be duplicat d by plaintiffs. Consequently, the intertie is essential to the transmission of bulk power from the PNM area to plaintiffs. See Associated Press v. United States, 326 26 U.S. 1, 13 8 n. 10 (1945); United States v. Terminal Hsilrasa issaaistian, 22t U.S. 383, t09 (1912); Bsai.t

v. Pro-Football, 570 F.2d 982, 992 (D.C; Cir. 1977).

(b) Per se rules oz antitrust lav are appropriate I

only when they relate to conduct that is manifestly anticompetitive. See Northern Paciz ic R.Co. v. United States, 356 U.S. 1, 5 (1958).

(c) Plaintiffs have failed to demonstrate that the defendant's restzictions on access to the intertie system warrants a nez'e rule.

(d) Zn. Blonder -Ton ue Laboratories, Znc. v.

Universit of Illinois, 402 U.S.. 313, 329 (1971), the Supreme Court abandoned the requirement of mutuality of parties vhen applying the principle of'ollateral estopp and held that estoppel vill be applied unless the party, can demonstrate that, it did not have a full and fair oppoz tuni,ty, procedurally,, substantively, and evidential to litigate the issue. sought to be estopped in the prior case. Subsequently, in. Parklane Hosier Co. v.

Shave, t39 U.S'. 322 (197g), the Supreme court held that the trial court is granted broad discretion in determini whether or not to apply the doctrine of collatez'al estoppel. Nhen making such a. determination; the trial court should conside.>> (i) the incentive to tully lit'tati in the prior f'orum; (2) vhethez the orior judgment is inconsistent with other decision; and (3) the proceduz al limitations on other proceedings. Also see United States v. TT Ra onier, 627 F.2d 996 (9th Cir. 1980).

(e) Collateral estoppel may be 'nvoked to foreclos of'ssues already determined in an adminis-I'elitigation trative proceeding. United States v. Utah Construction

I C ., 3)) U.). 39), ))'-22 )!96)); P 2 Transport S stems v. Chauffeurs etc., t>6 p.2n 106t, 1066 (9th Cir. 1971).

(f) Edison is collaterally estopped from disputing the following factual issues determined in FERC proceedings:

(i.) The Cities and Edison are in actual, and potential competition at the retail level. See Plaintiffs,'xhibits 027 at p. 886, and lP28 at pp.-

10 896-98.

(ii) The aporopriate rates to'ompare to determine whether Edison subjected the Cities to 13 unlawful monoooly pricing ("pr ice squeeze") between

'February 1,. 1976 and August.16, 1979 are the A-8 retail rates oaid. by Edison's large industrial 16 customers and Edison's R-2 wholesale rate oaid by 17 resale customers, such as 0he Cities. See Plaintif exhibits iP27 a.t p. 874, and iP28 at o. 898.

19 (iii.) Edison's R-2 wholesale rat , paid by 20 the Cities, exceeded the A-8 r tail rates. paid by I

21 Edison's large industrial customers during the period between February 1,. 1976 and August 16, 1979. See Plaintiffs'xhibits ~~27 at po. 875, 882, and IP28 at p. 898.

As to these facts, Edison had every incentive to 'ully litigate them before the Administr ative Law Judge and p7 the FERC. Edison was reoresented by counsel, oermitted massive discovery, allowed to oresent documentary eviden

and testimony, permitted to cross examine witnesses, permitted to object to evidentiary mater ial, and in general.'iven a full, and fair opportunity to litigate these factual issues. Moreover, Edison was permitted to appeal the Administrative Law Judge's decision, to the FERC on two occasions, with. the opportunity to raise each of the objections presently ra'sed in this Court. The FERC,expressly found-that each of these findings ~as necessary to the proceedings and rejected 10 Edison's. contention that the findings were superfluous.

See Plaintiffs'xhibit ~P27 at pp. 885-86. The FERC also indicated that the- findings as to these issues are final, regardless of the disposition of further hearings 14 See Plaintif fs 'xhibit fP28 at p. 898.

(g) At, this time, the. plaintiff has failed, to demonstrate that the FERC has reached a final decision on whether Edison's H-2 wholesale rate, paid by the Cities between February 1, 1976 and August 16, 1979, 19 was cost-justified. See Plaintiffs'xhibit /r'28 at 20.

p. 899. Collateral estoppel, therefore, shall not be 21 applied at the present time to this factual issue.

22 I

Plaintiffs'equest for an order lim'ting discover y*

23 is denied at this time without prejudice. The Court finds

'6 that in light of the findings above, the requested restrictio upon discovery ma'y be unnecessary. The parties are reminded, however, of the requirements of Hule 26 of the Federal Rules 27 of Civil Procedure to limit discovery to matters relevant to 28 the subject matter involved in the pend'ng action, and to

information that appears reasonably calculated to lead to the discovery of admissible evidence.

5.. Pursuant to Rule 16 of the Federal Rules of Civil Procedure, the Court hereby directs the attorneys for both parties to appear on i4fonday, July 20, 1981, at 10:00 a.m. in Courtroom 12 for a conference to consider the simplification of the issues. in this case. Prior- to this conference, on or before June 15, 1981, plaintiffs shall submit a brief fully examining whether or not the following issues are properly 10 issues for trial in this case:

(a) The impact of government regulation of defen-12 dant's activities and rates upon plaintiffs'laims in this action; (b) The'impact of Congressional or FERC encourage-ment of the. present intertie system on'laintiff's 16 claim; 17 .(c) The relevance of'onspiracy theory under the antitrust laws, in light of the contracts entered into 19 by Edison-and other s with respect to the intertie; 20 (d) The relevance oi prior settlements'r ZOAs 21 entered into between plaint'iffs and defendant, on plaintiffs'resent claims; (e) The impact or relevance ox PURPA upon plaintif claims; (f) The consequences, particular ly with respect to standing, of Azusa, Banning, and Colton's failure to 27 request direct access-to the. ntertie; and (g) The relevance or facts concerning future

I availability of bulk power sources outside the PNM to 2 plaintiffs.

3 Plaint'fs'rief shall also address the question of a bifurcation in this action of the issues of liability and damages.

Defendant may then submit a brief in response to plaintiffs'. brief, on or before July 3, 1981.

ZT ZS SO ORDERED.

10 ZT iS FURTHER ORDERED that the Clerk shall serve, by United.

States mail, copies of this Order on counsel for plaintiffs and counsel for defendant in this action.

Dated: May 18, 1981 Ma o m . ~ucas 16 United tate District Judge 17 19 27

UNITED STATES NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

Florida Power 6 Light Company ) Docket No. 50-389A

)

(St. Lucie Nuclear Plant, Unit No. 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the "Motion to Establish Procedures, For a Declaration That a Situation Inconsistent with the Antitrust Laws Presently Exists and For Related Relief" with Attachments 1-5, Appendices A and B, and 'indices (without documents) of Appendices C through I, have been served on the following hand delivery (*) or deposit, in the U. S. Mail, first class,by postage prepaid, this by27th day of May, 1981.

I hereby certify that copies of Appendices C through I (with documents) will be served on all parties, including the Nuclear Regulatory Commission, by hand delivery (*) or by deposit in the U. S. Mail, first class, postage prepaid, on the 28th day of May, 1981.

• Chase Stephens, Chief 'erome Saltzman, Chief Docketing S Service Section Antitrust 6 Indemnity Group Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Ivan W- Smith, Esquire Richard S. Salzman, Esquire Chairman Atomic Safety 6 Licensing Board Atomic Safety S Licensing Board Panel Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Robert M. Lazo, Esquire William D. Paton, Esquire Atomic Safety S Licensing Board A. P. Hodgdon, Esquire Nuclear Regulatory Commission Counsel for NRC Staff Washington, D. C. 20555 Nuclear Regulatory Commission Washington, D.C. 20555 Michael A. Duggan, Esquire College of Business Administration J. A. Bouknight,'r.

University of Texas Lowenstein, Newman,. Reis E Axelrad Austin, Texas 78712 1025 Connecticut Avenue, N. W.

Washington, D. C. 20036 Elizabeth S. Bowers, Chairman Atomic Safety 6 Licensing Board Joseph Rutberg, Esquire Nuclear Regulatory Commission Lee Scott Dewey, Esquire Washington; D. C. 20555 Fredric Chanania, Esquire Counsel for NRC Staff Nuclear Regulatory Commission Washington, D.C. 20555

Dr. Peter A. Morris Thomas Gurney, Sr., Esquire Atomic Safety & Licensing Board 203 North Magnolia Avenue Panel Orlando, Florida 32802 Nuclear Regulatory Commission Washington, D. C. 20555 William C. Wise, Esquire 1200 18th Street Dr. Oscar H. Paris Suite 500 Atomic Safety & Licensing Board Washington, D. C. 20036 Panel Nuclear Regulatory Commission Charles R. P. Brown, Esquire Washington, D. C. 20555 Brown, Paxton & Williams 301,South 6th Street.

William H. Chandler, Esquire P. O. Box 1418 Chandler, O'Neal, Avera, Gray Fort Pierce, Florida 33450

& Stripling P. O. Drawer 0 Hutchinson Island Coalition Gainesville, Florida 32602 c/o Helen Shea Wells 93 El Mar Drive Janet Urban, Esquire Jensen Beach, Florida 33457 Department of Justice P. 0, Box 14141 George R. Kucik, Esquire Washington, D. C. 20044 Mare Gary, Esquire I Ellen E. Sward Donald A. Kaplan, Esquire Arent, Fox, Kintner, Plotkin Robert Fabrikant, Esquire & Kahn Antitrust Division 1815 H Street, N. W.

Department of Justice Washington, D. C. 20006 Washington, D. C. 20530 Herbert Dym, Esquire Covington & Burling 888 16th Street, N. W.

Washington, D. C. 20006 Robert, A. Jablon Alan J. Roth Daniel Guttman Attorneys for the Gainesville Regional Utilities, the Lake Worth Utilities Authority, the Utilities Commission of New Smyrna Beach, the Sebring Utilities Commission,'nd the Cities of Alachua, Bartow, Fort Meade, Key West, Lake Helen, Mount Dora, Newberry, St.

Cloud, and Tallahassee, Florida and the Florida Municipal Utilities Association BY