Legalectric

You may remember prior posts about that but I’ll start from the beginning and try to make it quick.  There’s a pattern at the Office of Administrative Hearings that is disturbing…

Way back on the MinnCan pipeline, members of U-CAN had tried to intervene and were refused.  They got late notice and were not represented, stumbling through the administrative process pro se.  MPIRG showed an interest and started working on it, among other things, submitting a Petition for Intervention:

MPIRG Petition for Intervention - MinnCan Pipeline

Despite the late notice and their attempts to “work within the system,” the Petition of MPRIG individual U-CAN members was denied:

OAH - Denial of Intervention

And when they appealed, they were tossed out, as if they had not even tried to intervene:

MinnCan Appellate Decision

So when CapX 2020 hit, and they filed a Certificate of Need and landowners learned it wasn’t just the pipeline, but now transmission TOO (how much can a landowner stand?) they got right to it, and intervened as United Citizens Action Network (U-CAN), participating pro se as they had no resources to hire an attorney and were in condemnation and appellate court at the time.  They Petition, and were admitted as full parties.  So what happens?

Judge Heydinger, the same ALJ in the CapX Certificate of Need case as in the MinnCan pipeline case, files sua sponte (on her own initiative, not a Motion brought by parties) a demand that they explain why they, and the Prairie Island Indian Community,  should remain intervenors:

Order to Show Cause - U-CAN

Order to Show Cause - Prairie Island Indian Community

This had been done before in the Excelsior Energy Mesaba Project siting docket, where ALJ Steve Mihalchick booted out Xcel Energy, Minnesota Power, and my client, Public Energy - Mesaba, because no testimony had been provided:

5th Prehearing Order

This docket went forward, there were two days of hearings, first in Taconite, where ALJ Mihalchick rammed through 4 witnesses and where we weren’t provided adequate opportunity for questioning, and, I swear, when I tried to get a table, he said, “Whatever would you need a table for?”  Really… after much hassle, Bill Storm of Commerce found one (thank you!!).  Since that day, I bring my own.  Anyway, the second day, it was -30 in Hoyt Lakes and the hearing was in the unheated gym next to the hockey rink.

That day, Judge Mihalchick rammed through … what… 16 witnesses?…  in one day, and left saying, “I’m not coming back here.”

Travesty doesn’t begin to characterize that hearing.  And worse, Excelsior Energy got a permit for a vaporware project:

Excelsior Energy Mesaba Project siting hearing

Fast forward to 2011, where ALJ Heydinger has now again issued a similar Order to Show Cause regarding two intervenors, Energy Cents and Verso Paper:

Order to Show Cause

Here’s Verso Paper’s response:

Response to Order to Show Cause - Verso Paper

Just filed:   Order Confirming Party Status - Verso Paper

Where’s the Energy Cents Coalition?

Anyway, I’ve submitted a Rulemaking Petition to OAH about Minn. R. Ch. 1400 & 1405 to try to address some of this.  We shall see…

Thursday, June 30, the last day before the state government shuts down, the Public Utilities Commission will hear oral arguments and deliberate and likely decide fate of the AWA/Goodhue Wind Project.

PUC Staff Briefing Papers

The Staff Briefing Papers matter-of-factly point out a couple of things that make a huge difference in this case:

In the ALJ’s December 8, 2010 First Prehearing Order, Order point #13 noted:

13. As noted above, the parties may submit legal argument on how the good cause standard should be applied, if at all, in their closing memoranda. In particular, the Administrative Law Judge would like the parties to brief the issue whether Minn. Stat. 216F.081 (2008) is intended to apply only to counties that have assumed the responsibility to process applications and issue permits for LWECS with a combined nameplate capacity of less than 25 MW pursuant to Minn. Stat. 216F.081. …

This is not an issue that the Commission referred to the ALJ. The ALJ’s findings on this issue are included in her report as findings #39 - 47.

And shortly after that:

Staff recommends that the Commission consider all parties‟ positions on this matter and their previous November 2, 2010 Order for Hearing (cited above).

Staff believes that if the Commission comes to the same conclusion as the November 2, 2010 Order, it should strike ALJ findings #40-46 on the basis that the Commission has already considered this matter and the matter was not referred to the ALJ. Findings #39 and 47 are general in nature and staff doesn’t believe the findings would need to be omitted.

The recommendation of staff to the Commissioners?  Hold on to your seats:

Staff recommends adopting the ALJ’s Report with the following changes:

1) modifications to findings #10, 60 and 71 as outlined in Attachment B under “Staff”;
2) striking findings #40-46, as discussed above; and
3) providing for other modifications the Commission deems necessary.

YEAAAAAAA! From there to where this should be isn’t all that far…

To watch the oral arguments and PUC’s deliberation, CLICK HERE and then click the blue button to “Watch Webcast!” Or come on down, Thursday, 9:30 a.m. ( a little after, we’re 2 and 3 on the agenda), at 121 - 7th Place East, 3rd Floor, Large Hearing Room, St. Paul, MN, 55101.

Gil Scott Heron died at 62, the end of a tortured and torturous life, he was one of the few speaking out, standing up…

On Gil Scott-Heron, prelude to a performance at the Dakota last year, and “Gil,” warns his road manager, Danielle Beckom, “is not good with schedules.”

From City Pages:

By Rick Mason Wednesday, Mar 24 2010

Often called the Godfather of Rap these days, Gil Scott-Heron in fact emerged as a fiercely eloquent voice from the urban wilderness in the early 1970s, mercilessly skewering political and social forces that had disenfranchised huge swaths of the population and were leading the world down a treacherous path. A writer first and an admirer of Langston Hughes, Scott-Heron eventually fused his own poetry with a potent dose of jazz laced with blues and R&B, railing against complacent media, an oblivious mainstream America, runaway consumerism, racism, venal politicians, and drug abuse. Pieces like “The Revolution Will Not Be Televised,” “Winter in America,” “Johannesburg,” and “Home Is Where the Hatred Is” hit like lightning bolts, both electrifying and enlightening. The rise of hip hop was clearly indebted to Scott-Heron, who has been sampled and referenced by the likes of Kanye West and Common. Silent for a decade and a half—during which he reportedly battled health, addiction, financial, and legal problems—Scott-Heron, 60, recently re-emerged with I’m New Here, a stark, riveting portrait of the artist as weathered scribe, more personally analytical than of the wayward world that once drew his searing scrutiny. In place of jazz is hard-edged post-industrial blues laced with ragged beats as he covers Robert Johnson’s “Me and the Devil,” Bobby Blue Bland’s “I’ll Take Care of You,” and Smog, in the title track’s tale of arid alienation. It’s like hearing a voice from the other side of the apocalypse, but unmistakably that of a survivor.

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He’s finally announced he’s running. Tim Pawlenty for President. Pass the barf bags. As he describes our horrible situation, it looks like he’s trying real hard not to break out laughing. After all he’s done to Minnesota, I can only hope his reputation precedes him:

And the StPPP announces this on the Obituary page, thank you thank you thank you thank you:

And he can shovel it with the best of them:

Let’s hear it for Minnesota, a state with a legislature putting a Constitutional Amendment to a vote, “Shall the Minnesota Constitution be amended to provide that only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota?” and also trying, but failing, to also put to a vote the stripping constitutional checks and balances from the judicial branch.  And doing it in the name of “God.”  Makes me want to puke.

Yes, folks, it’s the inflamed “gay marriage” bill that I am so disgusted with, well, more correctly, I’m so disgusted with the people promoting it, the vitriolic fear and hatred flying out of the capitol and all things political, and the promotion of this nonsense by people ignorant of what the bill even says, by people ignorant and uncaring of who it affects and how it affects them.

Let me be very clear.  I’m an attorney, licensed in the state of Minnesota, sworn to uphold the constitution, state and federal, which is no small task, and I’m struggling to do my small part.  I’m one who grew up being carted around to my mothers pretty tame churchy “social justice” meetings, soaking in the imperative of “good deeds.”  In 4th grade I quit saying the Pledge of Allegiance when I realized there wasn’t “liberty and justice for all” and vowed to work towards it; one who religiously attended and enjoyed both sessions of Mayflower’s Confirmation class and chose not to sign up when I saw the glorious theories weren’t being practiced; transferred into Central H.S. as part of the first magnet class and sounded off at the School Board meetings as they were trying to wiggle out of the NAACP suit about Minneapolis’ segregated schools (did you know the court defined “segregated” as a 30 some percent minority school, yet a 100% white school was NOT “segregated?”); was a programmer and board officer for years at KFAI Community Radio recognizing the importance, the necessity, of independent voices; and drove a million bleary-eyed miles over 12 years in a Kenworth/Peterbilt to get through school to be “where I am today,” in a career I love, fighting for human and landowner rights when faced with steamrollers of utility infrastructure and ill-conceived land-use projects, suffice it to say that I am hypersensitive about the importance of standing up.  Standing up is not optional, standing up is not a question… it’s an inherent part of our job as humans, our duty as citizens, our calling as living breathing beings on this planet to leave it better than we found it, and it’s for each of us to figure out how we do that.  The bottom line is standing up.  There is nothing worse than standing silent in the face of injustice.

Here’s a video, thanks to Carol Duff, about public perceptions, speaking out, and silence:

I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.

There are no exceptions, here, folks. It’s ALL. Everybody, liberty and justice for all.

It’s not just “liberty and justice” for those you like, not just liberty and justice for those you agree with, not just to your select friends & relatives, not just liberty and justice for immigrants from your grandparents era, not just those who don’t make you queasy, not just liberty and justice who believe in your God, not just those who don’t challenge your belief system, but it’s liberty and justice for ALL.

ALL… liberty and justice for ALL…

Here’s the first engrossment text — where’s the “liberty and justice for all” in this?  As my mother would say… is this a Christian thing to do?

Here’s what they tried to amend it to, but failed, trying to take out the checks and balances of the judicial branch:

“Section 1. CONSTITUTIONAL AMENDMENT PROPOSED.
An amendment to the Minnesota Constitution is proposed to the people. If the amendment is
adopted, a section shall be added to article VI, to read:

Sec. 14. The judicial branch has no jurisdiction under this constitution to define marriage. The
legislature has the sole power to define marriage.

Sec. 2. SUBMISSION TO VOTERS.
The proposed amendment must be submitted to the people at the 2012 general election. The
question submitted must be:

“Shall the Minnesota Constitution be amended to provide that the judicial branch has no
jurisdiction under the Minnesota Constitution to define marriage and that only the legislature has
this power?
Yes ……………..
No ……………….

Here, linked, is where it passed in the Senate.

Here, linked, is where it passed in the House.

And on the federal side, they re-upped the “Patriot Act” also this week… sigh…

We have our work cut out for us… in Minnesota, it comes to a vote November, 2010.