this case it did not the question violated is why do you care why do i carry on i care because that the beauty of it is aggrieved by virtue of the shift in remedy between price caps which it sought and now an exposure to refunds which is never sought and which solely by virtue of the commission's air it now must carry that exposure report that exposure on his financial reports and bear the current actually you're out of the complaint is required to put something in with regard to refund if i'm not saying you were seeking refunds when the point is that the possibility of refunds has been on the table since then it actually stated in that section of the complaint that the committee that it didn't think refunds were appropriate and that any refunds must take into account the prospect of nature of the relief requested i e refunds only after they were price caps and over the price caps acknowledge that the commission reached the correct decision on america why would it put you in a legally aggrieved situation simply because you might have some exposure in terms of shareholder or other disclosure it seems to me there's two separate issues and that you're mixing the two in terms of being aggrieved in a legal sense but for this court on appeal i think we are grieved in the legal sense judge mccown because you can because there are current cost imposed on puget and its customers by virtue of having to have that exposure which exposure it should not have but for the commissions are they has no about theoretical future costs you know it's not just the cost of the litigation or the ultimate cost or burdens of the refunds it's the cost to our our financing by virtue of having being reserved for this we have a reserve for this we do not have a specific reserve for this we have a reserve for the california crisis on our books that's quite substantial is any of this on the record those parties are usually aligned with the absolutely why wouldn't that be the case here i think you get to take the case here goes back to the very substantial shift in the remedy sought or this was a complaint that saw price caps to protect its customers and by virtue of that air that shifting remedy to refunds place to its customers and exposure and i think that's a significant difference it's in some sense akin environmental review process which is part and parcel of the statute it doesn't relate to the final and it's a silly but let me just shift a little  to that of course is that it did not it well if it first says there on time it later says it's their timeline so they do shift in their language of the order there isn't one of the orders ten and specifically to ten v is quite explicit and says only those filings made within the time for scribe in the notice will be considered timely rule to ten i have copies here if the court would like copies and and counsel but rule two ten b makes it clear that timely was driven by the notice the fugitive complaint which was issued in november of two thousand and expired in i think november sixteenth least one of the parties had filed for intervention by then i have to pause because i've lost track of the parking spots it had only in the washington attorney general you know and so the fact that there was somebody else who on a timely basis sought to stick a foot in the door why can't the commission use that as a basis for proceed i'm sorry if you mean timely with regard to the original intervention notice none of the petitioners were timely in that fashion and washington attorney general which were the earliest earliest of the interventions by any of the other petitioners filed on july ninth the very last day prior to when th withdrawal would have been effective they filed for late intervention on that day and purported to oppose the the withdrawal now it's worth noting for a second and emphasizing that the only purpose for them opposing the withdrawal of the complaint in the rehearing would be to oppose the dismissal to urge the commission to not dismiss the complaint because it had been dismissed for quite a while now they did not have standing to raise that issue there we hearing period on whether or not the complaint had been dismissed had run in december of that year and that's the only purpose for which they could have conceivably filed the opposition to the withdrawal of the rehearing  complain when did you file its its request with rods complying it filed the request to withdraw the complaint six twenty two june twenty second so the how's the proceeding december was the last opportunity to intervene do jack and i think i missed something here no i don't think you missed it well i think you did miss something in december the commission dismissed if you just complained in december fifteenth the plate was dismissed on like the san diego case the complaint was dismissed rehearing of that dismissal was due by january sixteenth journey where and what the admission was free to change its mind with regard to its own decision to dismiss and in fact  correct the commission was free to change its mind that the other petitioners had no standing on that issue nor on the issue of refund effective date because nobody challenged again unlike the san diego case and you found this very relevant in the in the p u c decision no one challenged the lack of a refund effective date at the time the complaint was dismissed but isn't that what i do under the bridge once the complaint is reinstated and then later  ask to withdraw its complaint that then kicks off another procedural but i think you have i think you have the process backwards your honor the complaint was never reinstated it was withdrawn and then and then that withdraw became effective as of operation by operation of law in fact the complaint was never reinstated until the nanosecond the nanosecond when they granted rehearing improperly long after this proceeding solely for the purpose of terminating pujas complaint remained dismissed for two and a half years but for that nanosecond well yes it remained dismissed subject to further court order operation of law there was nothing left for the commission to reinstate if not to the contrary is true then of course the commission's actions proper and where's that leave you if the commission to act together is if you are swimming hypothetically that we hold may please the court my name is kevin mckeown i'm appearing this morning on behalf of the people of the state of california and i'm also speaking for the other refund petitioners my colleague mr hankey and i are dividing our time equally i'd like to reserve three minutes of my fifteen minutes f what we see as the pertinent chronology in the case this is an f b i section two zero six complaint case the complaint put at issue all sales of energy into the pacific northwest wholesale power markets the complaint also question withdrawal would have been effective if no opposition to the withdrawal had been filed within fifteen days but within fifteen days the city of seattle and the washington adjourn attorney general filed motions to intervene and oppositions to the withdraw if there was oppositions were valid they prevented the withdrawal of the complaint by operation of law under the commission's rule first then issue the july twenty fifth two thousand and one order in which is set for evidentiary hearing the issue of whether there should be refunds in the pacific northwest case and then two years later after the hearings for the issue disorder on june twenty fifth two thousand and three which is the order on appeal in that order it granted requests for rehearing and reinstated the complaint thereby confirming that we are dealing with a lot of complaint all along it also denied huge it's request to withdraw the complaint necessarily but then it granted huge its relief on the merits it excluded from eligibility for refunds and it denied refunds to parties that the commission might otherwise deem eligible on the grounds that even if rates were unjust and on reasonable it would just be too in equitable to order refunds in this case so my first point is is the dumb tar case  issue in dumb tar was the legality of first decision to allow intervention in the law in order to enable the filing of a rehearing request with the interveners wanted to do in that case was to file for rehearing from for final order  because under s p a three thirteen you may not file a request for rehearing unless you have already a party to statutory jurisdictional requirement so in granting the intervenors rehearing request this would have been done tar ruling jurisdictional issue because of the s t a three thirteen and that's the critical distinction between that case and this case we don't have that here in this case the analog to dom tars ruling three is the june twenty fifth two thousand three hundred that we have on appeal here but let me let me step back because as i understand it's argument well number one under the commission regs a motion have to be a motion can be made by a person who has made  timely motion to intervene and if the motions to intervene were due in november and nobody made such a motion the first motion made to oppose the withdrawal a motion at that time because they have not previously kindly moved to enter me yes your honor that would be a late filed intervention which is what we did and essentially what that means is we were taking the risk that for in its discretion could have denied or late filed intervention request that we file the time with that if you think grant if they grant your request to intervene does that necessarily mean they made a timely motion to intervene of saying it's retroactive we would say not for purposes of rule two twelve which the court also asked us to address well to twelve was a safe harbor if you if you file a timely motion to intervene which in this case would have had to happen in november of two thousand and you and then you file a motion even though first has not acted on your request to intervene your property you don't have that we don't have that here what we have is a late filed a motion to intervene it was it was filed on the same day that we filed a request to withdraw and so technically for could have granted it on that day and if for granted on that day just like in down tar we would have been we would have been in a position where we could file the request to withdraw into the commission's rules  day we filed it and related back to the day we filed it and we agree with that but even if we didn't agree with that and even if the court didn't agree with that focus permitted to waive its procedural rules and there's a good cause here folks found good cause so there's no reason why for can't grant a late intervention this is a housekeeping detail and that's what happened here this is not the situation in dumb tar where it was the jurisdictional statutory question this is these are folks procedural rules my second point is review refund case for it reopened the record here it would allow additional evidence just as it did in the california refund case and then first disposed of due process arguments that parties raised not by saying this isn't foresman action you don't even have to process rights for could have said that if i believe that this was not forced the action but it didn't do that instead it was all the issues on the merits so fuck knows how to convey to the parties and to the court that it's doing an enforcement action discretionary powers that's the m c i case cited in our reply brief at page four footnote six and i'll note that it quotes the minneapolis yes case which is actually an even more on point case i just and the main thrust of your argument there is all that expansion something was discretionary on the part of the commission it was discretionary on the part of the commission your honor on the other hand it was implicit in the complaint just like in the calif refund complaint in fact in the california case there wasn't even a mention of refunds in the complain the court can't review our discretion here because what we really had here was an act of discretion and an enforcement proceeding not an adjudication you have to look at what it really is and call it that and what it is is an adjudication finally i'd like to talk about melinda's in oregon in the pacific northwest and within the definition of pacific northwest as defined in the complaint although the complaint uses the word into is not a word of art into the pacific northwest market it those sales might be subject to refund and so that the difference between that case and this case is that this court excluded in the california refund case the sort of transactions that we are half of which we are claiming here because they were bilateral and so that's exactly the reason why they should be allowed here because they are bilateral and if i understand the testimony live in this case you segregated those transactions from the transactions orders in california proceeding right the title and risk of loss transfer at the livery point and when you look in the records what you see is that melinde it was the delivery point ninety seven percent of the cases and that was in oregon in the pacific northwest and then sort of controlled whether the power was imported into california so those have the risk of a stand the question it's because it wasn't in existence at the time the complaint was filed correct we don't think it makes a difference at all the complaint notified sellers and focused on sellers into the market and notified them that their sales into the pacific northwest might be subject to refund these are sort of sales into the pacific northwest and and they are therefore subject to refund within the definition of the complaint i point out that you know for example sort of didn't exist when the san diego complaint discussion in that opinion was whether sellers had notice that was the whole idea and as i read that paragraph the opinion sellers had did not have noticed because they were bilateral sales not because service was not in existence at the time and what we have here is a different situation so it had very much notice that bilateral sales might be subject to refund well i was also going to point out was that service had the opportunity and is getting refunds as market participant in the california indicated there are two things i want to talk about here the first one is why was served or served it was first wrong in deciding that relief here refunds were an equitable and second why was first wrong when it said we couldn't obtain other sorts of relief i like to start with the purpose of the federal power act is this court held in wackier the primary purpose of the fed power act is to protect consumers from unjust and reasonable prices it's ferguson duty to faithfully achieve that goal but here even though for assumed the prices involved were unjust and unreasonable it never the last refused to give any relief at all we submit that th consumers first respective as it is protecting consumers what is protecting them for the future because it believes that refunds would cause more harm than good if that's factually true and i want to raise at the moment if that's factually true then why isn't that entirely consistent with the statute that in fact they are protecting consumers are just more concerned about the future than the past if it were true well that's ok we can if your answer is well they could do that if it were true that's a legitimate answer but it means the focus is all the attention on the if it were true part yes it does but let me make a couple points here first first didn't think there was any sort of problem in the california proceeding with adverse consequences like the grant relief there was never explained why it's not granting relief in the pacific northwest even though it is found that those markets are in a related and even though it granted therefore granted price caps in both markets at the same time so it can't possibly believe what a market skewed market right but my point is not that they're not different between price caps and refunds my point is that the only way they could impose price caps in the pacific northwest is if they agree those markets are interrelated and if they agree those markets are interrelated then they should treat them in the same way well first half that's right that's the part where i have trouble with your argument because everyone  dispute that the markets are interrelated i think that is woven throughout the first orders the question is simply because they're in a related doesn't make them the same in terms of how they operated one day a centralized market the other at least in this case we're looking at bilateral transactions so what i have trouble with with your argument maybe you can help me and you seem to argue well because they are interrelated therefore you must have the same remedy but it seems to me you're missing a step there because in a related doesn't mean that the set they operate the same it simply means that there is there is some relationship between what's going on yes but i think what first must do and what it didn't do here is explain why having found they were interrelated that it would grant refunds in one of the markets but not the refund in the other market you had a duty to give a reasoned explanation of that and i don't believe it did so also we can go to the merit to the substance of them because that's really doing was focusing only on the sellers what for did not do well as it did not focus on the purchasers who were the people who were injured here it only looked at one side of the equation and said oh there's going to be an adverse consequence possibly to sellers and therefore we shouldn't do anything we submit that they've got it backwards they should be looking at the ultimate impact on consumers and that's something that they never did that they only talked about the adverse consequences that they thought existed for sellers well i mean i counted short the no one issue we're focusing on i take it that your comment here isn't focused specifically on the reasons given by the commission for treating the pacific northwest differently from california which i understand they talked about in their november order you seem to be speaking more generally and it really goes back to the first question i ask which is the first thing that it is showing concern for the consumers but because of its belief that granting the relief sought in the form of refunds would be more destructive than beneficial now you can correlate that factually but again we get different strands of argument we have arguments here the first doesn't have discretion right and i think i keep hearing you say that and then when you get to specifics you always move away to something but the facts don't justify it so let me find out for sure are you making the argument now that further doesn't have discretion period or are you will be focusing on specific factual well i think they have some discretion what i'm saying is that they didn't properly exercise their discretion because they only focused on one end of the equation that's what the mistake here is so why is it arbitrary and capricious under under agency review you can explanation for what they did and i don't think they explained why they wouldn't protect consumers adequately also i believe that their explanation here simply doesn't make any sense what they're really in the up saying here is that people who for a soon were charging unjust an unreasonable prices that those people their investment expectations are somehow going to be damaged if they're not allowed to retain those unjust and unreadable prices that they have tainted we don't believe they have any legitimate expectation in retaining something that is illegal they have no lawful right to charge unreasonable and reese well i think i'm not sure where that argument comes from i think as i and maybe you're referring to what they're talking about is the adverse market consequences but i read that as downstream market consequences of what would happen if you know so called future operation of the market so my question is how how could we as a reviewing court given the proceeding that went on you know how can we challenge their view of a market operation why would we what would we have to do to say that it was arbitrary and capricious when i think you have to go to the fundamental premise here which is what i was talking about their fundamental premise is that somehow the market is upset if a law is in force and that people who either assume charged under reasonable and unjustified prices are forced to turn that money back over that in our view simply turns the federal power act on its head because no longer about assumes that assumes that the parties acting in the way that you describe now is being unjust and unreasonable had reason to think at that time that what they were doing was subject to being on wound because it was unjust and reasonable than i thought time they were sellers of could have been lured into the market s well will manufacture will sell more at that price and i remember buying stock that in retrospect seem outrageously priced but the time seemed like a good idea right at the time it may have seemed like a good idea to the sellers ok well generate this extra energy will sell it at that price it's worth our while if you turn around five years later and say well that price that wasn't fair in retrospect so we're going to pull it back does that make participants in the market hesitant in the future to come to the market if they're not sure the price being quoted is the price it's going to s well i think they always transact in that market realizing that first has the authority leaders finds prices to be unjust and reasonable to set those anybody who says it's there any history of market pricing being found unjust and unreasonable i think the expectation is that market produces just and reasonable prices now we understand there's room for manipulation and you certainly go after the manipulators but what about the party who is not the manipulator well maybe that's a justification as to some particular party exempting them from any remedy but it's not a justification for saying we can't do anything in the pacific northwest at all as in regards to any single transaction or a group of transactions we just can't do anything at all whatsoever also what did here was that fail to consider the evidence of manipulation it asked the parties to present it we presented extensive evidence about market manipulation and then it didn't consider that at all in its determination so that it just laughed that off didn't talk about it and didn't deal with it surely it can't be the case that for a can simply ignore that kind of evidence surely people who we believe gates engaged in intentional wrongdoing don't have any legitimate or reasonable expectation that they can retain the money that they got from unjust and under reasonable prices that just i submit cannot be the law and one of errors here was there was all sorts of evidence of that and they simply wouldn't consider it so whatsoever so i don't know who your honor you invested in and maybe they were perfectly innocent but there were a lot of people here who were not innocent at all and knew what they were doing and knew they were gaming the market and knew that they were in effect stealing from consumers how those people can have any reasonable expectation before you start you have a time allocation yes your honor the agency responded intends on arguing for twenty two minutes and i intend to cede eight remaining minutes to the in undertaken to protect all market participants in this case consumers and suppliers and for the agency's efforts we have petitioners who are both supplier petitioners and consumer petitioners again turning to the last point concerning the ignoring of the evidence i think it's important to emphasize right now with that the commission issued its june twenty fifth two thousand and three order terminating finally the complaint proceeding off so issued at that very same time on that very same day a bundle of other orders initiating investigative proceedings against suppliers show costs proceedings proceedings concerning proceeding to condition all market based rates tariffs to protect against any manipulative or anti competitive behavior what the agency said in the june two thousand and three order was that it did consider all evidence but what the commission also did that day was to establish a number of show cause proceedings in this manner the commission does not have to worry about the timing of the future complaint does not have to concern itself with whether a refund effective date was established or is effective as we know from the two thousand and four lock your opinion what we know from the two thousand and six the august opinion in the california p c case is that if there is a tariff violation the commission does have remedial authority to go back in time whenever that violation may have occurred and to provide complete relief to those consumers who are the victims of manipulative behavior what's important to keep in mind is your mission doing anything along those lines  has done plenty the parties have been very vigorously involved in those cases my understanding is that all of those cases save one involving enron has settled  and considerable relief has been afforded to market participants both in california and the pacific northwest and unfortunately there are numerous appeals some degree stayed the question of whether the commission in the order of being appealed adequately to read all sides of the equation both the supplier and the consumers mchugh and i believe that the agency did discuss all sides of the issue and did act in the various rationales that it provided to protect consumer suppliers the market as a whole judge clifton you are correct some of the relief the agency provided is backwards looking some of the relief is forwards looking with respect to  s with respect to consumers of course let's not lose the fact that the agency did provide a price cap in june of two thousand and one and that price cap consumer from the consumer perspective i don't know that's a very satisfying answer well in the pacific northwest just about everybody is both a buyer and seller i realize there are some exceptions my understanding is that puget both buys and sells and that was the nature of the complaint that was filed in october two thousand which focused on the integrated ness of the from california but at other times can't ask to sell into california at a capped price judge but then you mentioned at the beginning of the argument whether the original complaint can be read to suggest the possibility of refund and yes it would not be an irrational reading of the complaint because there is a reference in paragraph seventeen to the possibility of a refund effective date suggest that the most reasonable interpretation or even a reasonable interpretation of the complaint is that the relief  mentioned the possibility of refunds and a refund effective date to the extent it was compelled to do so because of the strictures of section two hundred six of the federal power act and the commission l j proceeding a few months later the commission opens the door to i just you know evidence being submitted lots of things happened say at the end of the day with a complaint only stop prospective relief which we granted two years before sort of invites what happened in the two years in between while this activity going on i think considering something else later on i do agree there was an opening of the door in the agency's july two thousand and one order of course between december of two thousand and july of two thousand and one which of course is the period in question concerning the high rates there was no intervened had not opined on the complaint and were remaining silent during the entire course of the western energy crisis  in looking at the intervention and say well it would really be unfair to these parties who were in effect on the coattails of the complaint saying what's happening to not let them intervene  of only to be characterized as that you look at tory in terms of how it really and and the issues it was looking at well i do agree that the agency expanded the presidency eating kept the preceeding alive but i think it's important to keep in mind precisely what the agency did in two thousand and one in resurrecting the pujas complaint  this was found on page one hundred thirty one of the joint excerpts the agency established a fact finding proceeding the agency directed the parties in conjunction with the administrative law judge to develop a factual record in july of two thousand and one frankly the commission had devoted much of its attention to the pacific northwest commission had devoted and the parties had devoted and the chief failing in the settlement proceeding had devoted most of the attention to california so what the agency did in instituting this complying and if you had if you had stopped with the dismissal and you said we're not going to allow any more enter any more interveners that's yet that would have been one thing but when you reopened it asked for factual findings and you turned it into an educat proceeding a proceeding this either defined by the complaint as presented to the agency by a third party or it is defined and by the agency itself the intervenors here the petitioners they're not second class citizens of course they are parties to the agency proceeding but they take the proceeding as it has been defined by either the complaint or by the agency the agency in july of two thousand and one did not establish a refund effective date and i think that is a key distinction between this case and the california case section two zero six b of the federal power act which is sixteen u s c eight twenty four easy states that whenever the commission institutes a proceeding the commission shall establish it refunds effective da is the submission of recommendations but this is not the type of complaint proceeding or the type of proceeding instituted on the agency's own motion you you're engaged in force proceeding in fact you've taken the position before this court and we've agreed with you that people aren't allowed the parties are allowed to intervene in enforcement proceedings so tell me why you think that this this proceeding yes you're absolutely correct all of those points work in favor of categorizing this case as an adjudication i'm stumbling with respect to there is no third category of something that's not an one or the other because the agencies discretion that we have been talking about is twofold one to bring a new proceeding on its own instigation commission addressed if we were to disagree with some of those and find that reliance on those points was arbitrary and capricious but not disagree with others but state agencies  sufficient to support term a nation of this proceeding your honor the commission indicated that it was relying on the totality of the circumstances  commission did look at various rationales and i and i disagree fervently with the position stated of the titian or is that the agency did not provide any rationale ty over public utilities but not over instrumentalities of the state as the a l j found there are differences between pacific northwest markets california markets and one of those differences is the much higher degree and percentage of governmental entities yes i don't understand why understand you are going on that because basically you're saying if there are entities in the market to which we cannot grant relief we can't grant relief to anybody which does not seem to be reasonable well the commission was focusing on the fact that most of the market participants or both buyers and sellers it's not just simply a matter of providing relief to one party and not providing relief to another party but that the relief would be in applicable as applied to that one particular part be able you would agree to give refunds but not pay them but you would agree i think that for a could have the authority to make those adjustments in an individual cases yes and in fact that's one of the reasons why the commission preferred to consider evidence  market manipulation in individual cases involving the individual suppliers who may or may not be found to have engaged in market manipulation with respect to the various rationales i would like to point out that these are rationales that were also developed by the a l j in the at the den cherry proceeding i believe the a l j and findings are entitled to some deference but i do need to clarify the findings of the a l j were made in september of two thousand and one of course enron imploded a number of months later two thousand and two early two thousand and three was spent investigating and do thing evidence of market manipulation obviously the a l j did not have that evidence before her when she made her recommendations arguably that man ask you about that one of the challenges from the refund proponents is that they then submitted a number of documents related to the enron that finally were came out in various investigations and that having done so the only thing the commission sa considered your submission but didn't offer any verbiage in terms of how it considered it or what impact it had obviously we can deduce that it didn't have any impact in changing its mind take into account the other orders that issued the very same day your honor it's correct there was not much verbiage concerning the market manipulation evidence the commission did say that it considered that evidence in the commission did say that there wasn't any evidence of lawlessness in the pacific northwest as opposed to california and with respect to the a l j finding that markets during this time period were competitive maybe those findings are entitled to less weight because the a l j did not have this market manipulation evidence in front of her the commission itself doesn't adopt those findings that the commission won't say as the elegy appeared to say that the rates were in fact just unreasonable how is that we can give any deference to findings which the commission itself appeared not to adopt because the commission did explicitly adopt all of the other findings of the a l j i admit the findings are weak with respect to market power and competition but the various rationales that the agency did provide in the two thousand and three orders are precisely those rationales that the herself developed  another one in particular differentiating between california and the pacific northwest is the fact that there were options available to the pacific northwest customers in terms of hedg options that frankly were not available to customers in the field to find california markets as we now know why does a cut one way or another on the issue of market manipulation i mean the central question is whether or not the first made adequate findings on market manipulation one way or the other that we can review it seems to me that you didn't say anything about that i think by your actions and not affirming that part i asking for that is correct and the commission found for purposes of pursuing that evidence it made sense to pursue that evidence not in the context of a dismissed fully satisfied complaints with uncertain refund remedial authority but rather in the contemporaneously instituted investigative proceedings which did allow for additional fact finding and did allow for line of giving people time but the servers issue this then brought up and i want you to speak specifically to that and from this context if we're speaking about purchases made within what as the pacific northwest market in economic terms or in market analysis terms that make any difference that the power optimally gets transported to california economically it might not make any difference this is a matter of construction of the complaint itself again this is another matter that the a l j decided the l j decided the commission decided and indeed the complain itself has decided that the complaint was fully satisfied and the complaint contemplated sales into or in the pacific northwest but that complain did not contemplate sales in a southbound direction into california how do you try to distinction because i'm not sure that you said southbound there was a factual finding allegedly sales occurred in california but in looking at the record to me it seems plainly wrong and seems like it either had malan or it occurred or the change of ownership occurred at the california oregon border and the record seems pretty plain on that unless you can point to something else i haven't seen but i've looked at all the references so why aren't those sales in the pacific northwest market i agree there are numerous record references to transactions being undertak at the border and in some sense a sale at the border is in the pacific northwest the cone line in some sense can't you grant relief for those transactions i mean if you on a blanket basis you said no serious transactions are part of this complaint because they occurred in california but we really know from the record that some of them did occur in fact most of them probably that are the base of the  interpretation of what if yours is based on a faulty factual finding and interpretation of the complaint well the complaint says and you agree that it's a sale as in the pacific northwest that's covered by the complaint  complete now we know that some of the service transactions occurred in the pacific northwest right at the border or before the border we know that there are some that we know the change of ownership at that the border some of the some of the delivery points may have been more i think most of them probably current of mainland which is on the oregon side why isn't that enough to send that back for re examination because complaint also makes reference to the word into yes there are references to in but there are references to and and the complaint specifically defines the pacific northwest by reference to the pacific northwest how were planning and conservation act at sixteen u s the section eight thirty nine a fourteen this is a footnote on the second page of its complaints the reference to that statute refers to oregon washington idaho and portions of other states but not portions of california and i submit that the l j was correct that the reference to into who does suggest not just the actual location of a particular transaction but also the movement and the direction of that trans downs transactions but not for northbound transactions and as a result when the a l j found that the transactions for service were the delivery was physically taken in california and that w citations for here but the important point is the purpose behind the puget complaint which was to protect consumers in the pacific northwest and the state commissions in washington and oregon specifically asked for to reject the request for refunds by seattle and tacoma and others because of the two hundred twenty six participants in the ws p p only a handful came forward asking for refunds and the reason for that was that all of the other sellers and purchasers in the pacific northwest had protected their consumers by spending money to engage in long term or medium term hedging instruments and the state commissions in washington and oregon charged to protecting consumers specifically told for it wouldn't be fair to consumers to reward those entities like seattle and tacoma they have not protected their consumers by engaging in the kind of hedging instruments for a long and medium term contracts that other purchasers have had so it is simply false for the other side to say that the commission did not take the interests of consumers into account the commission say that they purchased this defective product which was unjust and unreasonable but we're not going to give them any relief because they didn't have the foresight to purchase the product next door which turned out not to be unjust a half a million specific transactions that were at issue here what the ale chain and the commission determined was that at some point in that chain a governmental entity could not be order to pay refunds and what you have here judge mccune is seattle and tacoma who are also selling this same interest under the bonneville decision they would not have to pay refunds but they would be order to receive a refund of sort of say you can't get more than you you can't collect on a gross basis you have to collect only on that basis well what the commission in its discretion and it does have discretion under section two of six of the federal power determined that it would be in equitable for that reason to try to parse through all of these different layers because those particular entities could not be ordered to pay refunds but yet we're asking to receive them and the state commissions also determined that that would create a destabilizing effect for the marketplace which would be unfair and inequitable for consumers because after all if you're not in a utility district that is one of the petitioners here because of weather conditions that are drawing down the hydroelectric capacity which comprises sixty percent of the pacific northwest market so the very end it was that one of the reasons that was one of the specific reasons for for distinguishing the what the commission was attempting to do was to come to a rational result where only a handful of and at least that had sat on their hands they had placed over reliance on the spot markets while adjoining utilities had paid extra money to engage in long in the medium term contracts that protected against the very risks that bonneville have warns them about the commission in its discretion quite properly thought it would be unfair and inequitable to order refunds in that circumstance if you assume for the moment on one level of argument says look drought conditions as the algae found the market operated properly it was not unfair not unjust not unreasonable but the commission chooses not to adopt that conclusion and since even if it is done just an unreasonable we're not going to relieve and at that point to have some difficulty because if you say there is gouging going on i'm not sure it's a very satisfactory answer today but we're going to disregard it because some people got more than others well the statute itself answers the question just clifton because it says that if the commission after having determined that there are unjust and were on reasonable rates may order that i might add our clients and others thought was unfairly granted in its effort to get fact finding but at the end of the day what the commission determined was that it couldn't equitably award refunds given the rippling effects of transactions the presence of governmental entities bonneville after all complicit consists of forty percent of the sales in this market and so at the end of the day what the commission determined after a amassing a great deal of investigatory evidence was that regardless of any findings about particular transactions that might be unjust and reasonable it would be unfair and inequitable to award refunds and i think it's important to distinguish one of pacific northwest where as one person or one entity might cause a change in the market clearing price in the in the case so and in the cow p x that couldn't happen with respect to arm's length bilateral transactions thank you establish or go about setting the refund effect a date at a certain time that is the issue that is raised here it is hornbook law that you cannot raise new issues for the very first time on appeal there are very distinct issues and we would simply submit to the court that the refund effective date argument that has been raised nearly here is not before you because it has not been preserved for appellate review interests throughout this reseating have only been it's interest of its customers it hat it is not a seller in any context other than as a utility protecting the interests of its customers one of the unique characteristics of this case that is completely different than the california case which is consumers are on all sides of every transaction almost all of the transactions all the selling transactions are from one consumer are you saying it is a consumer own company it's not consumer own company it's an investor on utility but all of its actions in the marketplace are soley on behalf of its utility customers it has no other business and i don't want to debate whose interests are being looked after but i'm still confused because is it not a seller of energy in this market not only to its customers but to other other utilities yes of course it is of course it is and every utility that is that run utility will at times be forced to make sales because they are forced to plan for the future and ensure that they have reserves that they have more than they need if demand spikes higher than it so every utility is selling that is power that was bought on behalf of customers and the sale price goes back to its customers any part of the rationale for the complaint in the first place as i understand it was described is that you're selling during certain times of the year to california and buying it are the times of the year from california  whipsawed by by price pass that fido only wants exactly correct because it would be our consumers that would be wished by those those differences then to that to the point under three thirteen that it's i agree with with the statements on the law but it's applied to the wrong quite the point at which the refund effect of aig was not greatest and thus was reclusive is the point in november and december when nobody raised when the commission dismissed the complaint and nobody challenge regard to a situation where price caps were protecting consumers in california and no price caps for protecting consumers in the pacific northwest it's completely different than the craftsman of the san diego complaint which dealt with i'm just an on reasonable rates a seated whatever time he left had left to me i'd like to respond first to this question about the spot markets and the argument that somehow seattle and the other petitioners didn't protect themselves the fact of the matter is there's nothing  federal power commission that says that people who participate in the spot market aren't entitled to protection by ferg can't simply cut out one mark and say well if you're over here in this market we're not going to do anything to protect you let me try this has discretion with regard to remedy would it be inherently arbitrary for a commission to say if we look at the market if we do things that going to people encourage people to participate in the spot market and rely on the spot market rather than on on longer term contracts that's destructive we don't want to encourage that so we don't want to go down a road that may lead to refunds to people that that i didn't start their nets for the winter and are built to house  guess the problem is it's not true see apple had ninety nine percent of its purchases not in the spot market these are not people who simply said oh we're going to dump everything in the spot market run the risk everybody had some needs that had to be done in the spot market but they weren't just putting as you said your honor all their nuts in one basket over here and running the risk and then saying we ran the risk for coming to save us from the risks that we took in any of it when they were doing things in the spot market they were entitled to be protected in that market like in the other market there's also this definitional problem here of course what's the spot market in the long term market you know addition your honor i think this falls right within what commissioner m market you can't get relief on the spot market you don't get any relief as far as work is concerned this court recently reversed that is long term market said you're entitled to protection there we believe that entitled to protection w it said we considered the totality of the circumstances did not say we find chanel number two by itself is adequate what it said was if you take every one of these and you add them all up and you look at the totality that justifies our decision if you now knock out a couple of those rationales that totality no longer exists and for never found that any one of its rationales by itself was adequate to justify what it did in addition not only are its rationales inadequate but i really want to emphasize the point of what for didn't look at the parties here submitted one hundred forty thousand pages of exhibits and two hundred seventy pages of testimony on manipulation and first gave that not one whit of attention the parties demonstrated that terrible damage starting separate enforcement actions writes this as something first and final then i think there are two problems with that one those enforcement actions do not cover by any means everything that the petitioners are objecting to here they are far more limited they are not an adequate substitute because they don't cover all the proceedings that we aren't unhappy about all the transactions i should have said that we're complaining about they simply aren't an adequate substitute i also think that this court answered that question in the p u c case you know august when it said on page one thousand and fifty one and i quote when section three zero nine relief sought parties have a right to a market wide ruling unquote that's exactly what we're asking for and what firth is refusing to give us they're saying all will go over here and we'll pursue a couple of individual enforcement actions that are far narrower than what you're complaining about you should be satisfied with consider them and we put that in here but we still come out with the saying rationale on what basis with it we have to as a court of include the materials i'm talking about that is they had an initial record then said everybody will go and get all this other evidence and we've got it but if you look at their decision they say they're relying on the earlier records you know addition if you look at their decision they never explain why the manipulation evidence why the damage to consumers evidence is not relevant to this equitable lane process they must give a reasoned decision as to why none of that evidence should be considered here and there only explanation is to say well we're going to go off and pursue some individual foresman actions that is not an adequate answer when we're our asking for a market wide rel