Submitted on Briefs: August 15, 2018
District Court of the First Judicial District, In and For the
County of Lewis and Clark, Cause No. BDV-2016-437 Honorable
Michael F. McMahon, Presiding Judge
Appellant: Monica J. Tranel, Tranel Law Firm, P.C., Missoula,
Appellee: John Alke, Northwestern Energy, Helena, Montana.
Plaintiff independent power producer Boulder Hydro LP
(Boulder) appeals from an order granting summary judgment to
NorthWestern Corporation d/b/a NorthWestern Energy (NWE) in
the First Judicial District Court, Lewis and Clark County. We
The issue on appeal is:
the District Court erred in granting summary judgment to
AND PROCEDURAL BACKGROUND
This is a contract pricing dispute between NWE and Boulder.
The Public Service Commission (PSC) regulates Montanan energy
sales. The PSC issues orders controlling how utility
companies like NWE and qualifying facilities (QFs) like
Boulder agree to pricing and term length in their Power
Purchase Agreements (PPAs). The PSC sets pricing in PPAs by
giving NWE a set list of options from which the QFs may
choose, measuring increments of energy in megawatt hours
(MWh), e.g., Order 6501f (PSC docket D2003.7.86).
NWE provides QFs these PSC-approved options in Exhibit A to
There have been several PPAs between Boulder and NWE (or its
predecessor Montana Power): one from 1985-2003, one from
2003-2007, and the currently litigated PPA dated July 1,
2007. The 2007 PPA offered by NWE to Boulder included three
pricing options set by the PSC in Exhibit A:
1. Rate Option 1 is a fixed payment rate of $49.90 per MWh
and allows a term from 7 to 15 years . . . .
2. Rate Option 2 consists of two sub-options: 2(a) and 2(b).
a. Option 2(a) is designed to reflect NorthWestern's
actual hourly incremental market purchases ..... This hourly
rate per ...