A WIN! But a DUH! win…

July 1st, 2006


Yeah, here’s another win, for those keeping score! It’s a DUH! win because it’s so obvious, no way could the ALJs get through the contortions necessary to find for Excelsior on this issue… a real waste of time, but that’s all to be expected in this game… the more they can keep me mired in this, the less time there is to build our case… so they think….

This is the link for the ALJs’ decision: Download file

Here’s Excelsior’s brief: Download file

And here’s our mncoalgasplant.com Response: Download file

What’s the problem here? Well, under the Mesaba enabling legislation, Minn. Stat. 216B.1694, Subd. 2(3),(7), the PUC has to consider the cost of “ancillary services” and “economic development benefits to the state.” Obviously Excelsior Energy doesn’t want anyone looking at the total amounts that the local governments are shelling out for “economic development.” Tens of millions of dollars, probably over $100 million, maybe $200 million all tolled, given there’s over $40 million for the county to become and build a short line railroad (!), realign Scenic Hwy. 7 as an “access road” for Mesaba. Nashwauk is becoming a gas utility and building a HUGE gas pipeline and taking away people’s land to do it! Taconite will take on water responsibility — another HUGE pipeline that can push 6,500 gpm that Mesaba needs, wastewater treatment, and the exit pipelines too. Ancillary services specifically includes transmission too, so we’re well over $200 million. And what else is there in the way of costs? That’s what I’m trying to find out. Given the statute requires we look at “ancillary services” and “economic development benefits,” they can’t hide this info.

But a bigger problem is that Excelsior was trying to Quash a subpoena that is for local governments, not for Excelsior, and that the subpoenas weren’t even served yet! Worse, in Excelsior’s brief, it says it was “invited” by “the Court” to submit a Motion to Quash — ex parte contact — and where Excelsior has no legal basis for such a motion! How many violations of law can you find in this picture?

Here’s the rule about subpoenas. Minn. R. 1400.7000 Subpoenas

And dig this, the bold part — where in this rule can Excelsior object to Subpoena requests for local governments, much less ones that haven’t been served::

Subp. 3. Objection to subpoena. Any person served with a
subpoena who has an objection to it may file an objection with
the judge.
The objection shall be filed promptly, and in any
event at or before the time specified in the subpoena for
compliance. The judge shall cancel or modify the subpoena if it
is unreasonable or oppressive, taking into account the issues or
amounts in controversy, the costs or other burdens of compliance
when compared with the value of the testimony or evidence sought
for the presentation of a party’s case, and whether or not there
are alternative methods of obtaining the desired testimony or
evidence. Modification may include requiring the party
requesting the subpoena to pay reasonable costs of producing
documents, books, papers, or other tangible things.

Excelsior has no standing, and its’ premature for even a party with standing to file a Motion to Quash. Given this rule, that they tried to interfere is bad enough, but that they got an “invitation” from “the Court” is bizarre. And then to write about it in the brief? Whatever are they thinking?

What it shows is how badly they do not want this PUBLIC INFORMATION made public:
Requests – County: Download file

Requests – City: Download file

When I heard that Excelsior was going to Object, knowing they have no right, I quick fired off Data Practices Requests, the same Requests with a different heading, directly to the local governments, because under the Data Practices Act, they’ve got to provide the information. hee hee hee hee, no way can Excelsior stop that! But what a pain, here the judge says we can’t get the info from Excelsior and I file Motion challenging that (meanwhile, I send my requests to them anyway, but they’ll stall and fight), so I subpoena for some of same info under APA rules and Excelsior objects and I file Repsonse and send out the same requests as Data Practices Act. Two weeks spent going round and round working on getting the info — I will prevail but this is too much time taken with all this happy horseshit and they’re getting away with avoidance and filing bullshit Motions. Rule 11 anyone? And isn’t “the Court” supposed to follow the rules? Both for Subpoenas and ex parte contact?

Our Pre-filed Testimony is due August 14, so tempest ist fugiting, and because of their delays, I’m looking at having to go in blind… needless to say I’ll be raising holy hell if they don’t produce and logically the schedule will have to be pushed back due to the delays in disclosure, eh? They’re making me work for it, but it’s way too much fun when Excelsior does something unfounded in law and so damn stupid! Serving all the parties on that Service List from Hell with our Response was a joy, heightened by the “Copy special” at InstyPrintes and capped by the availability of Sugar Ray Robinson stamps — how appropriate! Yes, we’re having fun now.

And then there’s the IRRRRRRRRRB, which under Minn. Stat. 216B.1694, Subd. 1(3), has to certify that the site has infrastructure sufficient for new or expanded development — and they did certify: Download file

So I’ve asked them for documentation of their site visits and documentation of infrastructure on Excelsior’s preferred “West site” in the undeveloped woods supporting their Certification: Download file

So they’ll claim pine tree roots as “pipeline infrastructure?” There is nothing whatsoever on the West site. That’s why Excelsior is so busy shifting costs for all the infrastructure that is supposed to be there but isn’t over to the local governments. But those costs are part of the “economic development benefit” equation that, under Minn. Stat. 216B.1694, Subd. 2(7), must be considered.

Oh, yeah, we’re having fun now.

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