Legalectric

It’s worth taking a look at the Freeborn Wind transmission docket (PUC Docket 17-322). To check it out, go to eDockets and search for 17 (year) 322 (docket number).  Obviously the Commission’s decision is a problem here, and as we’re awaiting the written order, I’m pondering.

There’s a statute that applies to wind proceedings, specified expressly in the “Exemptions” statute  as part of the Power Plant Siting Act that DOES apply.  That’s found here:

216F.02 EXEMPTIONS.

(a) The requirements of chapter 216E do not apply to the siting of LWECS, except for sections 216E.01; 216E.03, subdivision 7; 216E.08; 216E.11; 216E.12; 216E.14; 216E.15; 216E.17; and 216E.18, subdivision 3, which do apply.

Note the seafoam green Minn. Stat. 216E.08:

Subd. 2.Other public participation.

The commission shall adopt broad spectrum citizen participation as a principal of operation. The form of public participation shall not be limited to public hearings and advisory task forces and shall be consistent with the commission’s rules and guidelines as provided for in section 216E.16.

Check out the first and only Prehearing Order issued by the ALJ:

20184-141685-01_PHO

To call it “minimalist” is too generous…  What does it say about public participation?  Where’s the boilerplate information about intervention, about participation and being a “participant,” etc?  M-I-S-S-I-N-G…

Here’s the siting docket’s Prehearing Order #1 as an example – see the difference?

Prehearing Order 1_20179-135781-01

Association of Freeborn County Landowners showed up on September 20, and let the ALJ know in technicolor what we thought, raised many issues in detail, and later submitted written comments, together with the written comments from many members, including information about land where Freeborn Wind was attempting to route over non-participants!

Before the hearing started, I’d approached the ALJ and requested that he swear people on oath or affirm, and he said something to the order of “I remember you” having requested that before.  He didn’t want to put people under oath.  I reiterated that I’d been present, twice, at Commission meetings where Commissioners asked if specific testimony had been provided under oath, and that the rules provide it as an option, so I want to assure that’s not an issue.  The ALJ was not happy but essentially agreed to swear people in if so requested.  AAAAAAAAAAAAAARGH!

Minnesota Rules include swearing in as a duty of the ALJ:

1400.5500 DUTIES OF ADMINISTRATIVE LAW JUDGE.

Consistent with law, the judge shall perform the following duties:

…  F. administer oaths and affirmations;

That’s a “shall.”

Minnesota Rules have many provisions regarding being sworn in, and regarding testimony regarding “a fact at issue” in a contested case hearing:

All evidentiary testimony presented to prove or disprove a fact at issue shall be under oath or affirmation.

Minn. R. 1400.7800(g).  That’s a “shall.”  Here are a few citations regarding witnesses, oath/affirmation, and facts:

1400.7200 WITNESSES.

Any party may be a witness and may present witnesses on the party’s behalf at the hearing. All oral testimony at the hearing shall be under oath or affirmation. At the request of a party or upon the judge’s own motion, the judge shall exclude witnesses from the hearing room so that they cannot hear the testimony of other witnesses.

1400.7800 CONDUCT OF HEARING, Subp. G.  Any party may be a witness or may present other persons as witnesses at the hearing. All evidentiary testimony presented to prove or disprove a fact at issue shall be under oath or affirmation.

1405.0800 PUBLIC PARTICIPATION, Subp. B.  … However, testimony which is offered without benefit of oath or affirmation, or written testimony which is not subject to cross-examination, shall be given such weight as the administrative law judge deems appropriate.

Oath?  Affirmation?  This is not something anyone should have to push about…

Every Association of Freeborn County Landowner participant requested to be sworn on oath and was.  Not one of the witnesses speaking in support of the project requested to be sworn on oath.

AFCL also filed extensive written comments:

AFCL_TransmissionComments_FINAL

Here’s the ALJ’s Recommendation, filed July 26, 2018:

20187-145230-01_Freeborn ALJ Recommendation

Looking at this recommendation, how are comments from the public laid out?  How are the many substantive comments of AFCL members and project opponents positioned against the few, and with few exceptions, the comments of supports that had no content? Search the Recommendation for “AFCL” and/or “Association of Freeborn County Landowners” and what do ya get?

20187-145230-01_Freeborn ALJ Recommendation

Another point — do you see anywhere the boilerplate language regarding opportunity for any affected party to file Exceptions?  Yeah, this language (example from Docket 17-568):

Notice is hereby given that exceptions to this Report, if any, by any party

adversely affected must be filed under the time frames established in the Commission’s

rules of practice and procedure, Minn. R. 7829.2700, .3100 (2017), unless otherwise

directed by the Commission. Exceptions should be specific and stated and numbered

separately. Oral argument before a majority of the Commission will be permitted

pursuant to Minn. R. 7829.2700, subp. 3. The Commission will make the final

determination of the matter after the expiration of the period for filing exceptions, or after oral argument, if an oral argument is held.

20188-145717-01_AFCL_Exceptions

Details 2018-190