Legalectric

It’s about time, some serious attention paid to this huge group of 345kV transmission lines criss-crossing the state.   Red Wing and Prairie Island are the most affected of all Minnesota communities, because we have three lines in the CapX plan, one coming in from the southwest, one going south into Wisconsin, and another coming down from the Chisago substation.  IS ANYONELISTENING????

Power line plan may be live wire

Mike Longaecker
The Republican Eagle – 06/14/2007

Xcel Energy officials are gearing up to make a case that Minnesota’s electricity needs require a massive expansion of transmission lines.

Depending on the outcome, the 150-mile-long project could mean new power lines being draped over Red Wing.

The project would extend new high-voltage transmission lines from the Twin Cities to Rochester.

Xcel officials anticipate the line would head south through Hampton on its way to Rochester, though they won’t rule out a second option that would run lines east to the Prairie Island nuclear plant.

Utility officials will present their case — possibly by July — to the state’s Public Utilities Commission.

Notices to be sent

Before that hearing begins, Red Wing residents will be among the approximately 17,000 area landowners who receive notice of the project, an Xcel official said.

“We’re at the beginning of what will be a long and expensive and very open public process,” said Laura McCarten, co-executive director for what’s called the CapX 2020 initiative.

Preliminary cost estimates for the CapX 2020 project are at about $1.3 billion, she said. Xcel predicts that would mean about $1.50 more a month for the average customer.

McCarten said Department of Commerce figures show electricity use in Minnesota has doubled since 1980 but transmission infrastructure hasn’t kept pace.

Is it needed?

Opponents of the project reject Xcel’s claim that the state’s electricity needs will soon outstrip the ability to deliver them. The PUC will be tasked with sorting that out, but one Red Wing resident has her doubts that the need even exists.

Carol Overland, an advocacy attorney on utility, regulatory and land-use issues, said Xcel overestimates the need, citing a North American Electric Reliability Council study showing demand in the immediate area growing by .6 percent.

She suspects the project — to be linked with other transmission lines — is instead using Minnesota land as a conduit to provide more power to the East Coast.

“Is that something that should be built on the backs of Minnesota ratepayers and landowners?” Overland said.

She also noted that a Minnesota Supreme Court decision limits transmission projects to existing corridors. That would likely mean the project following the alternate route to Prairie Island, she said.

Also watching the CapX 2020 project closely is the Prairie Island Indian Community. Attorneys for the tribe filed a letter with the PUC, stating that the project could have “a significant potential impact, whether direct or indirect.”

In the March 2007 letter, tribal officials said they would reserve judgment on the project, but pledged to be heavily involved in a process McCarten said could take more than a year.

Statewide transmission efforts received a major boost from the Legislature during the 2005 session.

Sen. Steve Murphy, DFL-Red Wing, said he sees a need for the new power lines, especially considering the new wind generation sources that were mandated through a renewable energy standard signed into law this year.

“If we’re going to be a leader in this state in renewable energy,” Murphy, an Xcel employee said, “you’ve got to move it from where you generate to where you need it.” 

Time to haul out the big honkin’ gavel again…

I am not making this up — from the “FOURTH PREHEARING ORDER” in the Mesaba Project siting docket:

Unless excused by an Administrative Law Judge, failure of a party to file testimony when due shall result in that party being denied further participation as a party in this matter.

FOURTH PREHEARING ORDER

Ironic given that just last week, there was the backpedalling Chisago ALJ Order that said:

The fact is that our system of due process delights in the contributions that genuinely motivated parties make toward building a record for later decision-making.

Uh-huh… right… except when, as Xcel’s Chris Clark said, “We didn’t have anything to say!” Thankfully, my clients aren’t the only ones who haven’t submitted testimony. We’re in good company – there’s Xcel, Minnesota Power, so far, Excelsior is the only party to submit testimony, and that makes sense because THEY have the burden of proof in this. Intervenors are under no obligation to submit testimony, and if they “didn’t have anything to say” or if they’re cash strapped and will build the record on cross-examination, that’s just ducky.

So, show me the authority for an order like this!!!

hy are we sitting back? The ALJs’ recommendation has come down in the PPA side of things, with the ALJs recommending that Excelsior’s Petition be denied. As we wait for the Public Utilities Commission to take it up, the siting side of this is sitting… languishing… a good thing:

Commerce Siting Docket Site

For PUC Siting docket site, go to www.puc.state.mn.us and then to “eDockets” and then to “Search Documents” and then search for docket “06” and “668.”

Intervenors in a docket may participate to the extent that the choose. They can wage and active and fierce intervention or they can collect the mail as biomass, their choice. They can passively proceed with thumbs up various orifices or flood the other side with frantic information requests. It’s OUR choice. It’s not for the ALJ to limit. So here we go again, off to the races.

And of course I’m remembering the Hearing Examiner gavelling and yelling at Alan when he had the nerve to ask for the authority for ordering that he and the other Intervenors could not speak at a public hearing! I’m remembering the ALJ’s Order that CRVC explain just exactly why their representing themselves was not unauthorized practice of law (Here’s another post on that). And I’m remembering David Ludwig of the PSC essentially saying the same thing to me when I was representing a client before the PSC! How dare they try to quash the public! I expect this from the project proponents, but from state agencies? The arm of the governor???

Unless excused by an Administrative Law Judge, failure of a party to file testimony when due shall result in that party being denied further participation as a party in this matter.

Plus they’ve not added Charlotte, Ed, Ron and Linda, and Ross to the service list… so they didn’t know about this outrageous Order.

OK, fine, whatever, well, at least Xcel and Minnesota Power know about this and I trust they’re shaking their heads in amazement too…

Just in today — the “Second Order of Intervention” granting Concerned River Valley Citizens Intervention status:

SECOND ORDER ON INTERVENTION

And check this Memorandum, which simply must be read in its entirety to appreciate:

Because of the concerns Concerned River Valley Citizens (“CRVC”) raised in its filings as to the extent of public participation if its motion for intervention as a party were not granted, a few points deserve special emphasis.

It bears noting that while the Administrative Law Judge had concerns as to who might make an appearance on behalf of CRVC in these proceedings there was never a serious question as to whether, as an association of affected landowners, CRVC had a legal right to raise questions or be heard as to the proposed project. Similarly, there was never a risk that the views of CRVC would not be sought, or integrated in a meaningful way, into hearing record. Likewise, it is free from doubt that Mr. Neuman, Ms. Johnson or other affected landowners, could have intervened in their individual capacity, without counsel. The fact is that our system of due process delights in the contributions that genuinely motivated parties make toward building a record for later decision-making.

The much narrower item of concern for the Administrative Law Judge was whether Mr. Neuman or Ms. Johnson, neither of whom are attorneys, could permissibly make an appearance on behalf of CRVC – which is a corporate entity. The general, and more familiar rule, is that a corporation must be represented by an attorney in legal proceedings.

There is, however, an important exception to this general rule. The predecessor Environmental Quality Board2 had a specific representation rule for proceedings “involving … the routing of high voltage transmission lines” that is more generous and permissive than both the common law rule and the representation rule for contested cases under the Minnesota Administrative rocedures Act. Rule 1405.0600 permits “all persons” to be “represented by legal counsel, or by a person of their choice, or they may represent themselves.”  Under these same rules, the definition of “person” is broad enough to include corporate entities such as CRVC. 

Because of these more generous rules, which are specific to these proceedings, granting CRVC’s request as it was submitted by its chosen representatives, is appropriate.

And this is another aspect of the Chisago case that has me fuming!  There’s yet another twist in the Chisago proceeding is the harassment of my former client, Concerned River Valley Citizens (CRVC).  I’m glad I’m a step removed, because this is such flagrant _________ (your favorite invective here).

Earlier this month, CRVC’s Motion for Extension of Task Force was “taken under advisement,” and they received the most bizarre Order from the ALJ, directing them to respond to specific questions of the ALJ set out in Order point 3:

    3.    On or before 4:30 p.m. on Wednesday, April 18, 2007, a representative of the Concerned River Valley Citizens shall file responsive papers addressing the following matters:

a.    Whether either Mr. Neuman or Ms. Johnson is licensed to practice law in Minnesota or any other jurisdiction;

b.    Whether, in the view of the association, representation of Concerned River Valley Citizens by a non-attorney would amount to the unauthorized practice of law, as those terms are used in Rule 1400.5800;

c.    Whether, in the view of the association, retaining the services of a licensed attorney to appear on behalf of Concerned River Valley Citizens would be unduly burdensome;

d.    Whether the Concerned River Valley Citizens, if granted intervention as a party, would seek access to confidential trade secret data; and,

e.    Whether a more limited role than intervention, under Rule 1400.7150, might meet the needs of Concerned River Valley Citizens.

Seems to me that this is express notice to CRVC that they are being offered the “choice” of caving and relinquishing meaningful participation, or they’ll get only a “limited role.”  Good thing I’m not representing them, because MY response would not be printable in this “family blog.”

Here’s the full Order:

ALJ Harrassment and Quashing of CRVC

Bill Neuman has taken the lead in CRVC’s Intervention, since they “passed me off” to the City, and he submitted the following responses to the ALJ:

II. CRVC POSITION ON ISSUES

A. Whether either Mr. Neuman or Ms. Johnson is licensed to practice law in Minnesota or any other jurisdiction.

CRVC objects to this question as it infers a requirement that it be represented by a licensed attorney.  Maintaining that objection, neither Mr. Neuman nor Ms. Johnson are  attorneys licensed to practice law in Minnesota or any other jurisdiction. There is no authority in rule or statute to support the notion that licensure is required for an individual to represent themselves or a non-profit organization of which they are an officer. Further, the statutory and regulatory policy of encouraging public participation requires that parties be afforded the opportunity to represent their interests.

B. Whether, in the view of the association, representation of Concerned River Valley Citizens by a non-attorney would amount to the unauthorized practice of law, as   those terms are used in Rule 1400.5800.

CRVC objects to this question, as it, again, infers a requirement that CRVC be represented by a licensed attorney. While maintaining that objection, representation of CRVC by a non-attorney does not amount to unauthorized practice. Rule 1400.5800 does not offer guidance as to the definition of “unauthorized practice,” which is correctly found in Minn. Stat. §481.02. CRVC notes that this statute draws a distinction between those corporations organized for pecuniary profit, and non-profits such as CRVC. Minn. Stat. §481.02, Subd. 2. The statute also specifies legal representation in “court” and does not address administrative proceedings. Parties may draw and submit documents without charge where they are officers of a corporation, as Ms. Johnson and Mr. Neuman are with CRVC. Neither Johnson nor Neuman are receiving payment for their work on this issue. Minn. Stat. §481.02, Subd. 3. Minn. Stat. §481.02, Subd. 1,Subd. 5. Further, it has long been agency practice that individuals and officers of non-profit corporations represent themselves before the Commission and the Environmental Quality Board, and before ALJs of the Office of Administrative Hearings. Departure from this practice would be a change of great magnitude and impact and would greatly limit the ability of the public to participate in dockets that have a direct impact on
their lives and property.

Again, there is no authority in rule or statute to support the notion that licensure is required for an individual to represent themselves or a non-profit organization of which they are an officer. Further, the statutory and regulatory policy of encouraging public participation requires that parties be afforded the opportunity to represent their interests.

C. Whether, in the view of the association, retaining the services of a licensed attorney to appear on behalf of Concerned River Valley Citizens would be unduly burdensome.

CRVC objects to this question as it again infers a requirement that CRVC be represented by a licensed attorney and that an Order to that effect is contemplated. Maintaining that objection, CRVC states that retaining the services of a licensed attorney to appear on behalf of Concerned River Valley Citizens would be unduly burdensome, utterly unnecessary, and that any Order that CRVC must retain an attorney would be unreasonable. It should be noted that Minnesota does not offer Intervenor Compensation.

D. Whether the Concerned River Valley Citizens, if granted intervention as a party, would seek access to confidential trade secret data.

CRVC objects to this question because whether a potential party would seek access to confidential trade secret data is not a criteria for granting or denying intervention. Commission and OAH practice has long been to provide Intervenors with confidential trade secret data under a protective order, whether utility or non-profit intervenors. These agreements are routine. CRVC would obviously be bound by a confidentiality agreement. Further, there does not seem to be any confidential trade secret.

E. Whether a more limited role than intervention, under Rule 1400.7150, might meet the needs of Concerned River Valley Citizens.

CRVC objects to this question as it implies granting a limited intervention only, contrary to the policy goals of encouragement of public participation. Further, provisions of Rule 1400.7150 do not convey a right of participation. CRVC requires intervention with full-party status, as has been granted previously, because of the depth and breadth of issues raised, and that no other party adequately represents these interests. 

I guess CRVC told the ALJ, huh!!!

The ALJ’s Order is unprecedented harassment of Intervenors and is an extreme example of the many attacks against public participation, the basic due process rights of people affected by all these infrastructure proposals.  HOW DARE THEY!!!!

We had a “win” at the PUC on Thursday, but it’s the kind of a win that is such a “DUH!” that it’s hard to celebrate, it’s too much of a reminder of the ways that the public is being treated these days, shut out of process, harassed, quashed, and in this case, as attorney for City of Lindstrom, it’s astounding me the lengths Commerce on the Siting and Routing side will go to to keep a local government from having input. Unbelievable!

While I’m clear that Xcel is not “our friend,” they are not the ones putting up the roadblocks, and we have to be ever vigilant about ALL the players in this. Pawlenty’s state agencies particularly!

I’m having a hard time getting this posting done because the actions and position of the Dept. of Commerce have been so egregious… so I guess I’ll just let them speak for themselves, the pattern will show through:

Prior Post: Chisago — State cuts out the public

When it became clear that the Task Force process was being perverted by Dept. of Commerce into a “no notice” and “too little time” fiasco, we filed a Motion to Extend Task Force:

City of Lindstrom – Motion to Extend Task Force

Which was followed by the Commerce position, in a “letter” and not a responsive pleading, that it was not necessary to extend Task Force, that what had transpired was just fine, and arguing that the Siting/Routing docket was not a contested case:

Commerce Letter to ALJ Lipman

OK, fine, so then we filed a Petition for a Contested Case with the PUC:

City of Lindstrom – Petition for Contested Case

Our Motion was referred to the PUC, and was put on agenda for Thursday, April 19, 2007.  And here are the Staff Briefing Papers for Thursday’s meeting:

Staff Briefing Papers for April 19 2007

And here’s where it gets interesting. Xcel was not the “bad guy” here, the “bad guy” is the Dept. of Commerce Siting and Routing staff! Xcel came in with no objections to a contested case, an interest in assuring that “at the end of the day” the City of Lindstrom couldn’t say “we were shut out,” and “we had no opportunity to participate!” AND, best of all, they brought in this great chart showing just how it could be handled, where the rules for this “Alternate Review Process” can be integrated into the pre-existing Contested Case for the Certificate of Need! Minn. R. 4400.2850 folded into Minn. R. Ch. 1400 (and noting in places that “Ch 1405 provides helpful analogy.” And yes, I made sure Mike Krikava new that I appreciated Xcel’s attitude in this. Another interesting point — Commerce staff, in presenting their off the wall arguments, were there on their own, no Asst. A.G. to be seen!

Here’s Xcel’s chart, that shows how the processes can be combined:

Xcel – Alternate Review and CoN can be combined

The meeting was “spirited” and the bottom line was that because (I believe) Xcel had no objection with combining the two forks, Siting/Routing and Certificate of Need, into one contested case, that’s how it’s going to go! Will post the Order when it comes out.