On June 30, 2020, S Bar Ranch, LLC, and the District at ParkCenter, LLC responded to Cat Creek Energy’s Motion for Protective Order with the Director of the Idaho Department of Water Resources (IDWR). This response is in regards to certain aspects of the proposed Cat Creek Energy project in Elmore County, Idaho.

In short, Cat Creek Energy is withholding required information and data that individuals and government entities, such as the U.S. Forest Service need in order to make informed decisions regarding this immense boondoggle of a project.

Download the full 9.25 mb pdf file at S Bar Ranch, LLC, response to Cat Creek Energy's Motion for Protective Order

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The Response to Cat Creek Energy’s Protective Order

Dana L. Hofstetter, ISB No. 3867
Attorneys for Protestors SBar Ranch, LLC and The
District at ParkCenter, LLC

COME NOW, Protestors SBar Ranch, LLC and The District at ParkCenter, LLC
(hereinafter, “these Protestors”), and hereby respectfully respond to the Applicant, Cat Creek
Energy, LLC’s (“Cat Creek” or “CCE”) Motion for Protective Order and renew their Motion for
the Director to issue an order pursuant to Water Appropriation Rule 40.05.b. for CCE to submit
all information required pursuant to Idaho Water Appropriation Rule 40.05. The Declaration of
Anthony M. Jones (“Jones Declaration”) is contemporaneously filed in support of this Response.

In its Motion for Protective Order, CCE requests that the Director issue, “an order that
(i.) Cat Creek has satisfied the disclosure required under Rule 40.05.f.i of the Water
Appropriation Rules, and (ii) protects from disclosure the confidential information redacted from
the Second Declaration of James Carkulis and the Declaration of John L. Faulkner.” Motion for
Protective Order at 9. As discussed more fully below, CCE has neither satisfied the Rule 40.05
information requirements nor justified the requested protective order and CCE’s Motion should
be denied.

I. CCE’s Motion for Protective Order Should Be Denied as it Proposes Overbroad
Protection of Financial Information and Would Protect Non-Proprietary
Information from Disclosure in Violation of Idaho Code 42-203A’s Financial
Resources Criterion.

CCE provides a general itemization of estimated project development costs but declares
virtually every other aspect of project financing to be trade secret and proprietary. There are
certain kinds of non–confidential information concerning project financing that can and should be
provided pursuant to Rule 40.05. Thus, CCE’s proprietary claims are overbroad and threaten to
unnecessarily interfere with the parties’ ability to ensure the financial resources criterion in Idaho
Code 42-203A is satisfied.

The Declaration of energy economist Anthony M. Jones submitted herewith explains that
at this stage (which by CCE’s own timeline is approximately 5 years from project operation),
substantial non-proprietary economic information about project financing should be available:

At approximately 5 years away from operation, as I
understand Cat Creek Energy claims to be based on a review of its
project timeline provided as CCE-X-00039, it should be able to
provide the full terms of its capital funding arrangements,
including the amount and terms of debt commitments, the amount
and terms of equity commitments, and the interest rates,
amortization schedules, provisions for default, anticipated cash
flows, prospective balance sheets, the cost and income
relationships associated with CCE’s wind, solar, pump–storage,
irrigation, municipal water, and irrigation district operations, etc.,
for the life of the project. The only potentially confidential items
that may need redaction would be the identity of the parties
committing to provide the capital. This redacted information
should be provided to the Hearing Officer, however.

Jones Declaration at.\\2.

         While at this stage, significant project financing commitments should be in place and the
key financing terms would be non–confidential, CCE has claimed wholesale all such information
to be proprietary and has withheld this information from the parties. Although there may be a
basis to protect the identities of the providers of debt and equity commitments from public
disclosure, no good proprietary reason is provided for CCE withholding the existence of such
commitments and their basic terms or for CCE withholding information from disclosure
substantiating the economic viability of the proposed project.

CCE requests that the parties be required to execute a certain Protective Agreement in
order to have access to the financial information CCE is required by Rule 40.05 and Idaho Code
42~203A(5)(d) to disclose. In a number of ways, the Protective Agreement proposed by CCE is
too overbroad to protect the limited confidential information that may be in CCE’s financial
disclosures:

1. CCE, not IDWR, decides what is protected information and what is not.
   IDWR, not the applicant, should be in the position of deciding whether
   information is legally protected.
2. Every person involved in this proceeding must execute the Protective
   Agreement to obtain access to virtually all project financial information,
   although the Applicant statutorily is required to establish its prima facie case
   and meet its burden of proof under Idaho Code 42-203A regarding financial
   resources.
3. What about the public nature of this proceeding and how would the public’s
   right to access information, including financial information, about these
   Applications be safeguarded? Would parties’ experts also be required to sign
   the Protective Agreement to be able to review the protected documents?
4. Paragraph #2 of the proposed Protective Agreement concerning who could
   have access to the documents could preclude any law firms who have ever
   been involved with any energy project transactions in this State from
   participating in this proceeding, including, likely, CCE’s own counsel
5. With only in camera review and no ability to copy protected information
   except upon specific request and IDWR order, discovery and other
   preparations for hearing would be severely impaired.

IDWR is in the best position to determine whether certain information actually is
proprietary and trade secret. However, even if certain aspects of CCE financial information may
be proprietary, much of it would not be. IDWR can decide what is the right balance between
public disclosure of information and the protection of any truly proprietary information. CCE’s
concerns about law firms’ unnamed clients are unfounded speculation. Hawley Troxell is not
representing any other client in connection with this matter other than SBar Ranch and The
District at Parkcenter. These Protestors have water rights that could be impacted by these
applications. These Protestors have no other use for the Rule 40.05 information other than
protecting their own interests. These Protestors will comply with the Director’s Order on this
matter entered into in accordance with applicable Idaho law.

II. Although CCE Has Added 11 Additional Documents to its Repository Since
these Protestors Last Filed their Motion for Rule 40.05 Information, the Rule
40.05 Information CCE Has Disclosed Remains Woefully Inadequate.

          These Protestors, in the chart prepared by Spronk Water Engineers attached as Exhibit B
to their May 1, 2020, Motion for Rule 40.05.b. Order, detailed the informational insufficiencies
of CCE’s initial Rule 40.05 information submission. On June 16, 2020, in connection with its
Motion for Protective Order, CCE updated its repository, deleting 9 documents and adding the
following 11 documents:

CCE–C–00343– List of Surrounding Groundwater Wells (1 pg.)
CCE–C–01217– June 4, 2020, USFS comment letter to IDWR (2 pgs.)
CCE–D-00015– Civil Site Plan (1 pg.)
CCE-D-00016– Electrical Diagram– Not for Construction (1 pg.)
CCE-D-00029– Conceptual General Arrangement Substation (1 pg.)
CCE-D-00021– Preliminary – Not for Construction–General Arrangement Substation (1 pg.)
CCE-D-00022– Preliminary–Not for Construction Switching Diagram Substation (1 pg.)
CCE-D–00023– Financing Sources (2 pg.)
CCE-D-00025– Preliminary Transmission Line Sketches (10 pgs.)
CCE-D-00035 – Preliminary Plan 115kv lines (1 pg.)
CCE–X-00039– Timeline– Major Milestone Dates (3 pgs.)

Unfortunately, as reflected in the updated Spronk Water Engineers chart attached hereto as
Exhibit A, the addition of these 11 documents do little, if anything, to address the inadequacies
in CCE’s Rule 40.05 submission. The chart in Exhibit A details the significant gaps in CCE’s
Rule 40.05 information that remain unsatisfied.

CONCLUSION
For the foregoing reasons, these Protestors respectfully request that the Director deny
CCE’s Motion for Protective Order and issue an order requiring CCE’s compliance with Rule
40.05’s information requirements within thirty (30) days.

Dated: June 30.2020                                  HAWLEY TROXELL ENNIS & HAWLEY LLP

~ signed ~

Dana L. Hoffstetter

The tables referenced in the S Bar Ranch response to Cat Creek Energy contains many of the Water Rule 40.05 violations. These omissions and rule violations are highlighted in red on pages 8 through 14 in the original document found at https://catcreek-energy.com/download/1081/

Here are just the first few violations of Rule 40.05:

• No information provided to establish that storage pond will
  not intercept or appropriate groundwater.
• General documents on the project concept. No design,
  construction, or operation specifics.
• Claims no impact on water rights without supporting
  information.
• Claim diversions only in high flows and that Water Master
  will ensure no injury but no information on how CCE
  Project will be designed, constructed, operated or
  administered on a real–time basis to protect other water
  rights.

If you feel that the Elmore County Commissioner made a mistake in approving the Cat Creek Energy Project, we encourage you to contact them and let your feelings be known. 

Quick County Commission Phone Listing …

Chairman Al Hofer 208-599-1620
Wes Wooten 208-599-3131
Bud Corbus 208-599-1294

Thanks.