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…

A couple days ago, Judge Heydinger, who is presiding in the Xcel Hiawatha Transmission Project routing docket, issued an Order to Show Cause, demanding they comply or be booted out of the proceeding!

Here’s the March 29, 2010 Order to Show Cause

There were two problems that just shouldn’t go unchallenged.  First, she PRESUMES need, by ordering, in a Prehearing Order, that Intervening parties choose their “preferred route.”

Here’s the December 7, 2009 Prehearing Order

HUH?  “PREFERRED ROUTE” presumes that the route is needed, it requires parties to say “Stick it THERE!” which pits communities against each other, pits interests against other interests, it is just not right.  Why?  It’s going a step too far, it’s putting the cart before the north end of a horse headed south.  Need has not been proven in this case.  There is no Certificate of Need.  Heydinger’s presumption of need shows bias and prejudice in favor of Xcel.  It shows acceptance that the design of this project as proposed, the size, type and timing, is appropriate.  It shows acceptance of the proposer’s claim that this is the full project, which is contrary to studies revealed in Discovery and out in the public realm (on this blog, too!).   None of this has been demonstrated or found as fact in this docket.  There is no basis in the record or in law for that presumption.

And then, the following day, she issued a “letter” (not an Order) about “Hearing Arrangements” requiring that each intervening party be present every day, EVERY day, for the Evidentiary Hearing that’s likely to last three weeks.

Here’s the March 30, 2010 Letter – Hearing Arrangements

This hearing may be a bit much (compared to Arrowhead WI with 37 intervenors and 63 witnesses???) but imagine what it’s like for the Intervenors who are not funded, not represented, struggling along as best they can.

To see the full Hiawatha Transmission Project docket, go to www.puc.state.mn.us and then “Search eDockets” and then search for docket 09-38.

The rules say that “any PERSON” can file an affidavit of prejudice to disqualify a judge, so I did:

Overland Affidavit and Exhibits

So my question for all the Intervenors already in this — why are you all just sitting silent and letting these Orders and presumptions go unchallenged?