LEGAL | NOTE 11 – LEGAL In June 2011, a wildfire in New Mexico, known as the Las Conchas Fire, burned for five days in northern New Mexico, primarily on national forest service land in the Santa Fe National Forest. Six plaintiff groups, comprised of property owners in the area of the Las Conchas Fire, filed separate lawsuits against our Member, Jemez Mountains Electric Cooperative, Inc. (“JMEC”) in the Thirteenth District Court, Sandoval County in the State of New Mexico. Plaintiffs alleged that the fire ignited when a tree growing outside the right of way fell onto a distribution line owned by JMEC as a result of high winds. On January 7, 2014, the court allowed all parties and related parties to amend their complaints to include the addition of us as a party defendant. These cases are State Farm Fire and Casualty Company, et. al. v. Jemez Mountains Electric Cooperative, Inc., et. al. (amended complaint filed March 6, 2014); Elizabeth Ora Cox, et. al., v. Jemez Mountains Electric Cooperative, Inc., et. al. (second amended complaint filed January 31, 2014); Norman Armijo, et. al., v. Jemez Mountains Electric Cooperative, Inc., et al. (amended complaint filed January 16, 2014); United Services Automobile Association, et. al. v. Jemez Mountains Electric Cooperative, Inc. (amended complaint filed March 6, 2014); Jemez Pueblo v. Jemez Mountains Electric Cooperative, Inc., et. al. (filed June 10, 2013); and Pueblo De Cochiti., et. al. v. Jemez Mountains Electric Cooperative, Inc., et. al. (filed June 10, 2013). The allegations in each case are similar. Plaintiffs allege that we owed them independent duties to inspect and maintain the right-of-way for JMEC’s distribution line and that we are also jointly liable for any negligence by JMEC under joint venture and alter ego theories. On June 16, 2014, we filed multiple motions for summary judgment including for plaintiffs’ claims related to nuisance, trespass, negligence per se, independent duty, joint venture and alter ego. On December 29, 2014, we received a demand letter from the U.S. Department of Justice for costs incurred as a result of the fire, also alleging the joint venture theory. JMEC has settled with the subrogated insurers, executing and funding the deal on December 30, 2014 and on February 7, 2015, the court dismissed the subrogated insurers’ claims against us with prejudice. Settlement demands have been received from plaintiffs Jemez Pueblo and Pueblo de Cochiti claiming damages in the amount of approximately $34.4 million and $23.9 million, respectively, focusing mainly on damages arising from flooding subsequent to the fire. On March 9, 2015, the court granted our motions for summary judgment related to nuisance, trespass, negligence per se, and alter ego, but denied our motions related to independent duty and joint venture. On March 17, 2015, we filed an application for interlocutory appeal with the New Mexico Court of Appeals related to the district court’s denial of our motions for summary judgment for plaintiffs’ claims related to independent duty and joint venture. The New Mexico Court of Appeals denied our application for interlocutory appeal on May 27, 2015. A jury trial commenced on September 28, 2015. On October 28, 2015, the jury affirmed our position that we and JMEC did not operate as a joint venture or joint enterprise. The jury found JMEC was 75 percent negligent, Tri-State was 20 percent negligent, and the United States Forest Service was 5 percent negligent, and each had a role in causing the fire. We are evaluating our options regarding an appeal of the case. A separate trial will occur at a later date to determine the amount of damages. We maintain $100 million in liability insurance coverage for this matter. Although we cannot predict the outcome of these matters at this point in time, we do not expect them to have a material adverse effect on our financial condition or our future results of operations or cash flows. On February 9, 2015, Delta-Montrose Electric Association (‘‘DMEA’’) filed a Petition For Declaratory Order with the United States Federal Energy Regulatory Commission (‘‘FERC’’) seeking a declaratory order from FERC finding that its wholesale electric service contract with us is subject to FERC jurisdiction because we have paid off all our Rural Utilities Service debt; that the wholesale electric service contract cannot be read to preclude DMEA from purchasing power from a ‘‘qualifying facility,’’ which is a co-generator or renewable small power producer capable of producing up to 80 MW, pursuant to the provisions of PURPA and FERC regulations thereunder; and that DMEA has the right under FERC’s PURPA regulations to negotiate its purchase power price from a ‘‘qualifying facility’’ and to reduce its purchases from us by that amount even if that amount exceeds its contractual obligation to purchase from us. We filed our motion to intervene and protest with FERC related to such petition on March 11, 2015. DMEA filed a motion to answer and answer to our protest on March 26, 2015. We filed a motion for leave to answer and answer to DMEA’s answer on April 2, 2015. On June 18, 2015, FERC issued an order stating (a) DMEA is obligated to purchase from “qualifying facilities” offering available energy and capacity and such sales may be at negotiated rates and (b) we are not subject to the general FERC rate jurisdiction under the Federal Powers Act (“FPA”). On July 20, 2015, Kit Carson Electric Cooperative, Inc. (“Kit Carson”) filed a Motion for Clarification or Alternatively, Rehearing with FERC seeking a clarification of the FERC order, or alternatively, a rehearing, to the extent the FERC order applies to any of our policies or the application of any of our policies regarding Kit Carson’s obligations under PURPA to purchase renewable energy from a “qualifying facility” and as it relates to Kit Carson’s obligation to purchase and receive at least 95 percent of its electric power requirements from us under the wholesale electric service contract. On August 3, 2015, we filed a motion for leave to answer and answer to Kit Carson’s motion requesting FERC to deny Kit Carson’s motion because it is beyond the scope of FERC’s order in the proceeding and not within FERC’s jurisdiction under the FPA. On October 15, 2015, FERC denied Kit Carson’s Motion for Clarification or Alternatively, Rehearing stating FERC’s earlier order does not need further clarification and further restating that DMEA was obligated to purchase power from any “qualifying facility” that can deliver its power to DMEA regardless of any conflicting contract terms found in the wholesale electric service contract. We do not expect the FERC order or the denial of Kit Carson’s motion to have a material adverse effect on our financial condition or our future results of operations or cash flows. We are evaluating our options regarding its impact on our wholesale electric service contracts with our Members. In February 2013, WildEarth Guardians (‘‘WEG’’) filed suit against the United States Office of Surface Mining, Reclamation and Enforcement (‘‘OSM’’), in the United States District Court for the District of Colorado, alleging OSM’s failure to involve the public and address the economic impacts of coal mining throughout the Rocky Mountain West prior to mine plan approval. The suit alleged unlawful mine plan approval of mines located in Colorado, Montana, New Mexico, and Wyoming. The court granted intervention to several mine owners, including Colowyo Coal and Trapper Mining. The Colowyo Mine plan in WEG’s suit was approved in 2007 and the Trapper Mine plan in WEG’s suit was approved in 2009. In February 2014, the court agreed to sever the claims and transfer venue for the mines located outside of Colorado. In August 2014, WEG submitted its opening brief on the part of the case that remained in Colorado as Civil Action No. 1:13-cv-00518-RBJ. OSM’s responsive brief was filed on October 7, 2014, and Trapper Mining and Colowyo Coal, as intervenors, each filed a responsive brief on October 20, 2014. WEG asked the court to declare that OSM’s approval of the mine plans violated the National Environmental Policy Act (‘‘NEPA’’) and for the court to vacate the approvals until OSM demonstrates compliance with the act. Oral arguments took place on April 24, 2015. On May 8, 2015, the court issued an order agreeing with WEG that OSM’s approval of the mine plans violated NEPA. The court noted that the majority of the coal covered by the permit at Trapper Mine had already been mined, but ordered that no remaining coal covered by the permit be mined prior to approval of a new permit revision. With respect to the Colowyo Mine, the court determined that immediate vacatur of the Colowyo Mine plan did not outweigh the potential harm. The court deferred an immediate vacatur order for a period of 120 days from May 8, 2015 and expected the OSM during that time to address the deficiencies in the permitting process. On May 29, 2015, Colowyo Coal filed a Notice of Appeal and Motion to Stay the Order issued by the court. On July 25, 2015, the court denied Colowyo Coal’s Motion to Stay the Order. On July 27, 2015, OSM released a draft remedial environmental assessment of Colowyo Coal’s mining permit modification with a preliminary Finding of No Significant Impact. On August 31, 2015, OSM signed an environmental assessment of Colowyo Coal’s mine permit modification with a Finding of No Significant Impact, which was approved by the Assistant Secretary on September 2, 2015. On September 4, 2015, OSM filed a Notice of Compliance stating OSM had complied with the court’s May 8, 2015 order, thus obviating the need for entry of a vacatur order. |