That letter above pretty much sums up the issue at hand.
The ALJ asked Commerce-EERA to produce an Affidavit from the person serving late notice to the “ADDITIONAL new landowners” and they didn’t do it. Affidavit regarding service of the person who actually did it? Yup, it was pretty specific. From the transcript, pages 33-35:
Here’s the RRANT_Motion to Intervene Out of Time.
Here’s selected parts of the 8-13-2015 hearing transcript, thanks to David Moeller, Minnesota Power:
So what did Commerce EERA send?
Starting with this:
This “takes no position” declaration was followed by 2+ pages, single spaced, of position after position! The letter discussed everything BUT the issue at hand” Did the 24 “ADDITIONAL new landowners” get notice of this proceeding on February 9, 2015, and the Affidavit regarding same from the person who did or didn’t do it.
Rather than attach an Affidavit from the person serving notice, as requested by the ALJ, they attached an Affidavit of Bill Storm, as much speculative hearsay as it was at the hearing on August 13, 2015.
Rather than attach an Affidavit from the person serving notice, as requested by the ALJ, they imply that because “Attachment 3” shows that John Wahlberg asked to be put on the service list in June, JUNE, at the same address as Wahlberg Trust, one of the 24 “ADDITIONAL new landowners,” must have received notice. Constructive notice is likely, but what about actual notice? That’s what we’re trying to get at here.
So if it went down as Commerce EERA says it did, why aren’t they producing an Affidavit from the primary person who served Notice on February 9, 2015, be it Sharon Ferguson, Caren Warner, or someone else?
This isn’t a criminal trial, and administrative rules of evidence are not court rules, BUT… not producing the Affidavit as ALJ O’Reilly requested, specifically, several times, opens the door to an inference that they’re doing the best they can and that they can’t produce what the ALJ asked for.
Lack of notice has been a recurrent problem, and yes, we’re trying to deal with this in rulemaking, latest draft released earlier this month:
Anyway, here’s what I sent in response:
To this RRANT Response, MP’s attorney writes, just now:
Judge O’Reilly – I would note that while OAH Rules (1405.0900) allow other parties or persons to respond or object to a Petition To Intervene, the Rules do not provide for “a reply to the replies.” At some point, the process must stop or parties and participants could continually reply to one another. Minnesota Power respectfully suggests that Ms. Overland’ latest filing should be ignored and a decision made on the basis of the filings and arguments to date.
Yeah… whatever… OAH Rules 1405.0900 is not prohibitive either. Let’s be clear, Minnesota Power, this is NOT about you (though in other dockets it’s been the Applicants bringing in new routes at the last minute). This is about the Minnesota Department of Commerce apparently failing to provide notice to landowners targeted in scoping, and failing to comply with the ALJ’s request for an Affidavit regarding service from the person doing the job, not Bill Storm and his speculative hearsay.
Decision time? Yes, bring it on…
What bothers me about this is that never, at no time, ever, should any landowner be subjected to a transmission line without notice and an opportunity to speak their mind about it, to decide whether to participate or not, to intervene or not, and if they do, to do all they can to speak up! If anyone thinks that someone who has not been given notice should “host” a transmission line, or be considered to “host” a transmission line, there’s a serious hole where their sense of ethics and their moral compass should be. And then there’s that pesky matter of due process.