Legalectric

Above — the mittens (approximation) the judge was wearing at the hearing, big brown leather — DURING the hearing, yes, it was indeed a cold day in hell…

The “siting” hearing for Excelsior Energy’s Mesaba Project was Tuesday and Wednesday, that’s the long dead IGCC/coal gasification plant that keeps hanging on as we beat that equine’s bloated and stinky carcass. It was bizarre, but it’s hard to tell how far back to go in detailing the bizarreness… and I’m a little cranky, having sat most of the 20 degrees below zero day in an unheated gym attached to the Hoyt Lakes Arena (they couldn’t turn the heat on because when they did, the blowers made so much noise we wouldn’t hear anything but the blowers). The first day went pretty well, we did get through a few witnesses with some good issues raised in the record, so good for our side that the second day the process was shut down. They rammed through all the witnesses through at once, before any public questioning was allowed, and it wasn’t until around 7 p.m. or later that we could get started.

How far back to go… It really started back in Big Stone II, I think, but I’ll stick to this docket for now… First large weirdness in this docket was the ALJ’s Prehearing Order granting intervenor status to Xcel, Minnesota Power, and Public Energy-Mesaba (coalition of groups actively challenging Mesaba), and then there was the Prehearing Order that those not submitting prefiled testimony would no longer be intervenors and could not participate as intervenors, only as members of the public! Really!

Fourth Prehearing Order

In that Fourth Prehearing Order, it was noted that there would be a Phase I and Phase II as provided by Minn. R. 1405.1500:

1405.1500 SEQUENCE OF PROCEEDINGS.

Subpart 1. Recess. All hearings shall recess at 11:00 p.m.
unless the administrative law judge determines that the public
interest will best be served in any given hearing by continuing
the hearing beyond 11:00 p.m. The administrative law judge may,
in the judge’s discretion, order a time and place for a
continuance of that hearing.

Subp. 2. Two-stage hearing. The hearing may be scheduled
in two stages. The first stage shall be for the purpose of
introducing into evidence all of the prefiled direct testimony
of the parties, and the cross-examination of each witness by all
other parties. The subsequent stage shall be for the purpose of
allowing all other interested persons to present their direct
testimony and to question witnesses that offered testimony
during the first stage of the hearing process.

Nothing contained herein shall be interpreted so as to
prevent the public from being present during the first stage of
the proceedings or to question witnesses at an appropriate time
during the first stage of the proceedings, should time allow.
The administrative law judge may give priority to those members
of the public desiring to ask questions which would enable them
to better prepare for cross-examination during subsequent stages.
It is the intended purpose of the two-stage process to establish
specific hearing dates for the primary purpose of public
participation in order to avoid inconveniencing the general
public by requiring them to wait until late at each hearing
before having opportunity to offer direct testimony and ask
questions. However, at the discretion of the administrative law
judge, the applicant and other parties may present a brief
summary of the prefiled direct testimony at the beginning of
each session.

Subp. 3. Additional hearing dates. Nothing contained
herein shall be interpreted so as to prevent the administrative
law judge from establishing additional hearing dates on motion
or at the judge’s discretion.

STAT AUTH: MS s 116C.66; 216E.16

HIST: L 1984 c 640 s 32; 17 SR 1279
Current as of 08/21/07

About this time, I saw trouble coming… So anyway, when Xcel, Minnesota Power and Public Energy-Mesaba did not submit Pre-Filed Testimony, we got the ax, we were out as Intervenors. THERE WERE NO INTERVENORS IN THE EXCELSIOR ENERGY – MESABA PROJECT DOCKET!!! That happened in Prehearing Order 5:

Fifth Prehearing Order

which said, in pertinent part:

4. Because they have failed to file testimony when due, Xcel Energy,
Minnesota Power, and Public Energy—Mesaba are denied further participation as
parties in this matter. They shall remain on the service list and may participate as
members of the public and interested persons as set forth in the First Prehearing Order
(January 19, 2007).

So let’s go back to that First Prehearing Order:

First Prehearing Order

Note the foreshadowing:

3. Any person desiring to become a formal party must file a Petition to
Intervene by February 12, 2007. Any person petitioning to intervene after that date may
be restricted as to the scope of their participation. Any existing party that wishes to
object must file an objection within seven days of service of the petition. Petitions to
Intervene should comply with Minn. R. 1400.6200.

5. Members of the public need not become formal parties to participate in the
hearings. Members of the public may offer either oral or written testimony, may offer
exhibits for inclusion in the record and may question the parties’ witnesses as set forth
below.

7. As suggested by Excelsior Energy, and for the greatest convenience of
the public, the two-stage hearing procedure permitted by Minn. R. 1405.1500, subp. 2,
will be used. In Stage One, the prefiled direct testimony of each party’s witnesses shall
be admitted and those witnesses shall be cross-examined by the other parties. If time
allows, limited questioning by other interested persons may be allowed. In Stage Two,
other interested persons may present testimony and may question the witnesses who
offered testimony during Stage One. Interested persons offering testimony may be
questioned by other persons at the hearing.

In the First Prehearing Order, there were to be days and days of hearings, more than two weeks worth! Given there were 20 or so witnesses, that sounds workable:

April 2-6, 2007 Stage One sessions in St. Paul, Taconite, and/or
Hoyt Lakes

April 9-11, 2007 If necessary, additional Stage One sessions in
St. Paul, Taconite, and/or Hoyt Lakes

April 20-24, 2007 If necessary, additional Stage One sessions in
St. Paul, Taconite, and/or Hoyt Lakes

April 25-26, 2007 Stage Two sessions in Taconite and/or Hoyt
Lakes

April 27, 2007 If necessary, additional Stage Two sessions in
Taconite and/or Hoyt Lakes

But all the Intervenors were eliminated and so was the public vetting and gutting of Excelsior Energy’s Mesaba Project. That got it down to two days… TWO DAYS!!!!!! Twenty witnesses in two days. Yup, great record we’ve got here. So under the rules, Minn. R. 1405.1500, Subp. 3, seems it’s time for a Motion…

Stay tuned… highlights and lowlights of the hearing to follow …