Today the PUC approved all but one part of the CapX 2020 Brookings-Hampton route.  The blue part labeled “CH” on the above map, and which is referred to as “Segment 4″ in the EIS, which includes the river crossings at LeSueur and Belle Plaine, has been remanded to the ALJ to fill in the record regarding the most recent USFWS letter:

June 10, 2010 - USFWS Letter

June 10, 2010 - USFWS Letter part 2

Here are my notes from the meeting, it’s close but no cigar, a lot is missing, lots of misspellings, but it’s important for you to get a feel how this all came down and I’m not about to relive it and edit and correct — what you see is what you get:

July 15 notes

CLICK HERE FOR WEBCAST OF PUC MEETING

Finance & Commerce leads the charge in reporting:

July 15, 2010 4:34 PM CDT

MPUC approves Brookings Project route

by Bob Geiger Staff Writer

The Minnesota Public Utilities Commission (MPUC) has approved a route permit for the $700 million to $725 million Brookings Project electric transmission line, giving a cartel of electric utilities its second route approval.

MPUC approved the route permit for the 345-kilovolt transmission line between Brookings County in South Dakota and Hampton, with the exception of a segment of transmission line crossing the Minnesota River.

After the U.S. Fish and Wildlife Service expressed concern about the impact on birds of a transmission line crossing the Minnesota River, the five-member MPUC voted to have an administrative law judge consider that issue.

Excluding the line segment crossing the river, MPUC members approved 200 miles of the 240-mile route proposed by CapX2020, a joint initiative of 11 utilities supporting the $2 billion network that includes 700 miles of transmission lines.

If necessary, the administrative law judge will schedule a hearing to provide additional information about the transmission line crossing the Minnesota River. CapX2020 proposed two river crossings for review; one near Le Sueur and one near Belle Plaine.
(more…)

That was Charlie the “faciliator” shussssshing me yesterday at the “Citizen Advisory Task Force” meeting in Plainview.  Again…

… and I said I would not leave, he again asked me to leave,  and I wrote down Alan’s phone number on the pile-o-papers of the landowner sitting next to me and said “no, I won’t leave” and restrained myself as best I could, which was very hard, VERY hard.  He said he’d go to the Police across the hall, and I said “Go ahead.”  It’s absurd.  Well, my thoughts on this aren’t even printable… He then stopped the meeting for a break, and came over and was not interested in engaging in a conversation, he was all about forcing me to shut up, telling me how many task forces he’s run (all run wrong, I presume), that the way for the public to participate is through MOES, that this meeting is for Task Force members (and if they need information that you’re not providing, GIGO, eh?  Can’t have people knowing the critical information, can you).  He wanted me to promise to shut up, but II wouldn’t make that promise because ya never know when the fount of information will need to burst forth!  So he goes out the door in a huff, presumably to the police to turn on the video?, maybe he just hid in the bathroom for a while.  If he’s a “facilitator” and chose that approach rather than, “Oh, that’s right, Task Force members should know that _____” which would have been a lot quicker and effective on a couple of fronts, 20 seconds and move on to something else,  instead he has chosen to be oppositional every time this has come up, that says a lot.

What’s the deal?  Why so oppositional?  Is it a control issue or was it that he did not want information about Rural Utilities Service consideration of three river crossing locations known by members of the Task Force?

Since 1995, I’ve been working along-side of Citizen Advisory Task Forces, clients have been members, I’ve Petitioned for them more times than I can count, and I have been to way too many Citizen Advisory Task Force meetings than I care to remember.  And the way they are being set-up (apt word) and run is misfeasance and malfeasance.  People appointed to be on these Task Forces have no idea of the purpose, history or importance of Task Forces, and have no idea how MOES is misshaping this process.  It’s all in MOES interpretation of the rules, and that’s a hard one to get at.  But I’m putting together the background info to show how Task Forces have morphed over the years because I am sick to death of the way these “Task Forces” are manipulated, uninformed, deviated from their charge.

LaCrosse Project Task Force Charge

Deviated from the charge?  Yes.  That’s why the Task Forces revolted in the Brookings routing docket, and they refused to vote, because of the way they were pushed into voting on segments one by one.  Pushed by Charlie, and they pushed back.  Here, there was also significant deviation from the charge, in that after issues were raised, they were to narrow down the list of issues at the second meeting to the ones they identified as most important.  HUH?  The charge is to raise issues, not to limit them:

OES herein charges the ATF members to:
1. Assist in determining specific impacts and issues of local concern that should be assessed
in the EIS by adding detail to the draft Scoping Document;
2. Assist in determining potential route alternatives that should be assessed in the EIS.

This statement from the MOES Notice is also direct quote of the PUC Order.  I missed the second meeting in Cannon Falls, but at the Plainview one, there was objection to limiting these impacts and issues, objection to picking some and leaving out the rest.  GOOD!  Each and every concern raised that they think should be addressed SHOULD go forward to be addressed in the EIS.

Restraint — in a format like this where I see it’s not handled right — for me that’s the hardest part, because when important things are not known to a group, when they’re asking questions and not getting full answers, particularly at a public meeting, at a Citizen Advisory Task Force meeting, there is information they need.  They need it now.  They don’t need it later, they don’t need it in an email, or searching around on the web, they need it when they are talking about it.

Day before yesterday, it was a case of a circular discussion of Hwy. 52 interchanges, and the Task Force members were asking questions about the DOT’s policies and routing through and around existing and planned interchanges, and THE TASK FORCE MEMBERS DIDN’T HAVE THE DOT COMMENTS.  I raised the question, “Do Task Force members have the DOT comment?” while waving my copy in the air, and I was shusssssshed by Charlie, the “facilitator,” but Matt Langan wisely offered to copy mine and give it to the members, who all clearly needed it, and deserved to have the most recent information.  Yesterday, a similar discussion occurred, and the Thursday group had not been provided with the DOT comments.  Why are they withjolding information?

Day before yesterday, the fact of the Stanton airport was raised, and that line shouldn’t have even been drawn on the map because the airport right there renders it infeasible, so why waste anyone and everyone’s time on it?  But apparently the Task Force members didn’t know about it, those who proposed it, or those “facilitating,” and it was drawn as a route.  WTF?  And then Xcel’s Tom Hillstrom states that it’s a PRIVATE airport, and it’s not, it’s a PUBLIC airport.  This is the sort of information that they need to have.  There is no excuse for “facilitating” this ignorance.  It took me about 30 seconds to find the FAA database, and about 15-20 to play with it and format it a little and voila, here it is:

Minnesota Airport Database - Searchable

So why don’t they get that information???

And when a Task Force member who could not attend the prior two meetings and so ended up in the audience, why was he shussssshed when he offered relevant commentary about a historical area, why was that information not welcomed?!?!  To borrow a “land-use” phrase, “How dense can we be?”

The issues with Task Forces have been a problem since the 2001 legislative changes, and it continues, specifically:

• MOES does not give sufficient credence to the term “public participation,” which is one primary purpose of Task Forces.  Participation in Task Forces is a bare minimum of public participation, not an upper bound.
• MOES is resistant to Task  Forces.  They will sometimes acquiesce to one, like their pre-arranged ONE for Dakota County area in the Brookings routing proceeding, and the pre-arranged ONE for Pine Island area in the Hampton-Alma routing proceeding.   We had to fight for more than one Task Force for Brookings and Hampton-Alma, despite the long length of the route.   MOES did not want one for Chisago, it wasn’t Xcel objecting but MOES!!!   THERE WAS NO TASK FORCE FOR THE MINN-CAN PIPELINE - CAN YOU BELIEVE IT?
• Because of MOES reticence, it’s usually up to someone, often moi, to Petition the PUC for Task Forces.  I’ve done this over and over, to the point that each time it’s necessary, I’m getting more and more pissed, and citing more and more examples of the problems in the Petition.
• Despite getting a PUC Order for two or more Task Forces, MOES refused to set one up for the Marshall area, despite requests, claiming they weren’t enough and the right kind of requests.  had they notified people in the Marshall area of a need for more requests, those requests would have come in.
• There is not enough time allotted to get CATF members appointed, for example, it can take a City a number of weeks if they need to have a public meeting to appoint a representative, and sometimes it’s all happening in too fast a time frame.  For the Chisago Project III, there was just six days!
• NO REGULAR CITIZENS ARE APPOINTED to the CITIZEN Advisory Task Forces.  For example, two Task Forces for Hampton-Alma with ONE exception, a person representing a group along a particular route, and no individuals in either.
• No groups like Cannon River Watershed Partnership or Zumbro Watershed Partnership are invited or present.  EH?
• The Task Force members are notified that they have been selected, and for some reason, that notification does not come with a copy of the application!  The first meeting, they arrive and are provided some materials, but THEY ARE NOT GIVEN A COPY OF THE APPLICATION!  The applicants will gladly give them one if they ask, but they have to ask and have to KNOW to ask.   How do you know what issues to raise, what impacts may be, what alternatives there may be, if you don’t know what is being proposed?  How do you know what’s being proposed if you don’t have a copy of the application?
• MOES contracted facilitator focuses on “Land-Use” and states that’s why only “Land-Use Professionals” (yes, that’s a repeated direct quote) are on the Task Force.  He says he’s facilitated 12-13 of these and that’s how it is, therefore that’s the right approach.  SAY WHAT?!?!?!  MOES and its contractor are determining the charge and steering Task Force work in a way that is inconsistent with the PUC’s Order.
• The public is not allowed to speak at Task Force meetings, and there is no designated public comment period at any time during Task Force meetings.  How is this “public participation?”
• Agency people should be brought in to inform the Task Force of agency policies, i.e., DOT, DNR, Fish & Wildlife, FAA, so that Task Force discussions of alternatives and review of applicant proposed routes can be informed, substantive and relevant.
• The maps they were looking at did not have all features identified.  Even some features that were identified were ignored, i.e., when talking about pros and cons of routes in the Cannon Falls area, NO ONE MENTIONED THE CANNON RIVER — NOT EVEN ONCE!
• The legislatively mandated “sunset” of Task Forces means they end wen the Scoping Decision is issued (mandated after the spectacular performance of the Florence Township and Chisago I Task Forces!), however, Task Forces may expressly continue as a workgroup, there was some discussion of that at one of the recent PUC meetings addressing Task Forces, and if they want to continue to meet, they can.  DESPITE THIS, THE PLAINVIEW TASK FORCE, WAS TOLD THAT NO, THEY CANNOT CONTINUE MEETING.  MOES is deciding to present that the Task Force ends, period.
• Task Force Reports are now written by agency staff, they used to be written by the self-elected Chair and members of the Task Force.  The statute and rules are silent as to who writes the report — and it is MOES that determines that MOES shall write the report.
• The Brookings Task Force Reports (2) were NOT entered into the record by MOES — they were entered by yours truly after learning that MOES had not entered them.
• Comments about the Task Force problems filtered into the ALJ’s Recommendation for the CapX St. Cloud-Monticello route:

Task Force Process

108. The ALJ received comments from Sherburne County, the City of Becker, Becker Township, Clear Lake Township and Haven Township expressing disappointment with the Task Force process and lack of notice provided to local governmental units on the east side of the Mississippi River. State Senator Lisa Fobbe commented on behalf of her constituents in Sherburne County that the decision by the Advisory Task Force to consider Route D was made without involvement from the residents of Sherburne County.

109. Clear Lake Township commented that no representative of any governmental body in Sherburne County participated in the EIS scoping process before or after the identification of four proposed alternate routes located in Sherburne County.  Clear Lake Township believes the Advisory Task Force did not comply with Minn. Stat. § 216E.08, which requires public participation in the EIS preparation process. ALJ’s Recommendation for St. Cloud to Monticello p. 21.

• From Chisago III, A View From The Ground: Alternative Routes & Least Environmental Cost Considerations for the Proposed Chisago Electric Transmission Line Project , here’s the introduction to the Task Force Report:

A. CHARGE

In the Public Utilities Commission Order “accepting route permit application as complete, authorizing selection of Public Advisor, and combining environmental review and public hearing with Certificate of Need application,” dated February 12, 2007, the Commission authorized “the Department of Energy Facilities Permitting staff to establish an advisory task force and develop a proposed structure for the task force.”

The Department developed a candidate application form and presented the proposed structure and charge for the advisory task force at a Public Meeting in Lindstrom, Minnesota on February 27, 2007. A six (6) day deadline for submitting applications for membership on the task force was announced. Predictably, the short time frame ruled out the possibility of appointments from most affected governments because they do not meet frequently enough to respond to such an unreasonable deadline. According to the Project Manager, only one of the nine affected local governments responded. One affected local government, Chisago City, was not notified of either the applications or the task force opportunity, yet has since become involved in the process.

Subsequently, representatives from two affected cities and several other citizens did submit candidate applications to the Public Advisor by the March 5, 2007 cut off. The Department declined task force member requests and a request from the City of Lindstrom to extend the deadline for submission of task force applications and on March 9 declined to establish a formal advisory task force, citing Minnesota Statute 218E.08, supd 1.

The Commission authorization to establish a task force was then replaced by Commerce with an informal advisory task force process led by the Project Manager. The advisory task force had a membership of sixteen (16) representatives and met three times as a group to discuss scoping, alternate route designations and environmental and safety issues that should be addressed in the Environmental Assessment (EA). The advisory group met March 19, 23 and 26 at the Lindstrom City Hall and individual ‘homework’ assignments were completed by members between meetings.

The advisory task force included eight staff or elected official representatives from Chisago City, the City of Lindstrom, Center City, Shafer Township and Chisago County. The advisory group also included at least one representative of East Central RDC, Chisago Lakes School District, Concerned River Valley Citizens and St. Croix Scenic Coalition. Depending on how you count, four or five listed members of the advisory task force were citizens who represented themselves. Additionally, another eight or ten community leaders attended the meetings, participated in discussions and made recommendations to the group. The advisory task force was given only nine work days within which to initiate its work at the first meeting, draft and review recommendations and submit its recommendations to the Project Manager.

The impossibly rushed participation schedule was presented to affected local governments as a fait accompli and this has led Chisago community leaders to conclude the spirit and intent of the Power Plant Siting Act to “provide for broad spectrum citizen participation as a principle of operation” was not intended in the above described process. To this point, agencies entrusted with protecting a fair public process have failed themselves…and the public. The City of Lindstrom has filed a Motion for Extension of Task Force and, in the alternative, Certification to the Commission. We hope for a late rally that will overcome the initial failures of process.

The public, in this case represented by advisory task force members, did participate in good faith to conclude prescribed work on time and bring forward recommendations. They represent a public perspective of what should be the overriding ‘charge’ directed to all parties to protect the public interest.

DO THE WORDS OF THE CHISAGO TASK FORCE SOUND FAMILIAR?!?!? Special thanks to Kristen Eide-Tollefson for reminding me of this intro.  And that triggered some memories… would you believe that when we got to the Chisago hearing, months after the Task Force Report was issued, the very last day we learned to our astonishment and consternation that the Appendices to the Task Force had been omitted from the record?  MOES did not include them.  That included a flyover video,  obtained with tremendous effort; the Chisago I Task Force Report (so as not to have to reinvent the wheel for the same project 10 years later):

Expanding Horizons - Chisago I Task Force Report 1997

Expanding Horizons - Appendices - Chisago I

And some other examples, there are so many, and I haven’t the stomach for it right now.  Some more history, in this post:

Citizen Advisory Task Forces through time…

You all know how disgusted I’ve been watching Citizen Advisory Task Forces devolve over the last decade, from a group that could meaningfully participate in a routing/siting proceeding to a neutered exercise in choreographed futility.  In these proceedings, we’ve had to Petition to get a Task Force, and MOES has objected and is wanting to do ONE, for the Brookings line, and again ONE for the Hampton-Alma/LaX line.  HOW ABSURD!  Both to claim that one is sufficient, and to have to fight for it!

And then, after winning an increase from what MOES wanted, it’s still a fight, to get people appointed, to get a Marshall Task Force which was denied, and to have the Task Force do what the CHARGE states, not what MOES wants (it is not the same).

Who is eligible to be on a task force?

Who is appointed?

How many times to they meet (it’s been limited to 3 meetings for the last few!)

What is the charge?

Who runs the group?

Does the “facilitator” facilitate according to the charge?

Is there a report and if so, who writes it?

Does the way Task Forces are handled these days meet the statutory criteria and intent?

Here’s the statute:

216E.08 PUBLIC PARTICIPATION.
Subdivision 1.Advisory task force.

The commission may appoint one or more advisory task forces to assist it in carrying out its duties. Task forces appointed to evaluate sites or routes considered for designation shall be comprised of as many persons as may be designated by the commission, but at least one representative from each of the following: Regional development commissions, counties and municipal corporations and one town board member from each county in which a site or route is proposed to be located. No officer, agent, or employee of a utility shall serve on an advisory task force. Reimbursement for expenses incurred shall be made pursuant to the rules governing state employees. The task forces expire as provided in section 15.059, subdivision 6. At the time the task force is appointed, the commission shall specify the charge to the task force. The task force shall expire upon completion of its charge, upon designation by the commission of alternative sites or routes to be included in the environmental impact statement, or upon the specific date identified by the commission in the charge, whichever occurs first.

In this round, for the Hampton-Alma/LaCrosse line, they’ve utterly ignored the statutory purpose of public participation, and are limiting it to elected officials in the area, who they term as “land-use professionals,” and there are no regular people!  At least two local groups, the Cannon River Watershed Partnership and the Zumbro Watershed Partnership were not contacted and asked to participate!  “Land Use Perspective” eh? Where did that come from?

So to gather background info,  I fired off a Data Practices Act request to get info on the specifics over the last decade:

Task Force -  Data Practices Act Request - 1

Task Force - Data Practices ActRequest - 2

And a partial response came in Friday — this has links to make it easier, it’s the info that they were able to find on the web:

Advisory Task Forces - Web-based information 2002-2010

Background info for what???  We shall see… I’ll be posting info as it comes in.

Maybe Pawlenty knew the revolution waiting if he did not sign.  BE SURE TO LET THOSE LEGISLATORS WHO SUPPORTED IT KNOW HOW MUCH YOU APPRECIATE THIS BILL.   Here’s the scoop plagiarized direct from David Bly:

Governor signs eminent domain law to protect landowners

May 3rd, 2010

ST. PAUL – Governor Pawlenty has signed legislation I authored to increase fairness for Minnesota landowners involved in an eminent domain process with utility companies. The law repeals the special exemptions for eminent domain given to utility companies involving high-voltage transmission lines and natural gas and petroleum pipelines.

This new law is a victory for individual property rights and for all Minnesotans. Fairness and respect for property owners put in extremely difficult situations has prevailed.

Previously, “public service corporations” (PSC) were exempted from Minnesota regulations and restrictions designed to protect landowners in eminent domain disputes.  This exemption has created a paradox in state law that is unfair to Minnesota property owners.

If a non-profit entity like the state government wants to use your land for a public park, you have far more protections than if a for-profit utility company wants to run a high-voltage power line through your property. In the interest of fairness to Minnesota’s property owners, we are simply holding these specific utility companies to the same standard we hold our own government.

The new law ensures that utility companies involving high-voltage transmission lines and natural gas and petroleum pipelines must pay for the attorney fees of prevailing landowners if the final award for damages in an eminent domain proceeding exceeds the last offer made by the acquiring authority by 40 percent or more.

Several other new protections include:

• Appraisal and negotiation requirements: Acquiring authority must obtain one or more appraisals before commencing an eminent domain proceeding and furnish copies to the property owner when an offer is made. Inform the property owner of the property owner’s right to obtain an appraisal, paid for by the acquiring authority, up to a maximum amount. Make a good faith attempt to negotiate personally with the property owner to acquire the property through direct purchase. Give advance notice to the property owner of its intent to use an appraisal or documentation related to loss of going concern at a condemnation commissioners’ hearing.
• Contents of notice of petition for taking: Specifies that an eminent domain notice given by an acquiring authority to a property owner must state that the taking may be challenged in person at the court hearing or by appeal within 60 days and that a court order is final unless appealed within 60 days of service of the order.
• Compensation for loss of going concern: Requires an owner of a business or trade destroyed by a taking to be compensated for loss and allows a party to appeal the amount awarded.
• Minimum compensation: Specifies that an owner forced to relocate must receive minimum damages that allow the owner to purchase a comparable property in the community.
• Limitations on condemning authority’s actions: Prohibits the acquiring authority from requiring the owner to accept as part of the compensation any substitute or replacement property, or to accept the return of any portion of the acquired property.
• Limit on relocation benefits: Provides that relocation benefits to a displaced business shall be in accord with federal regulations, but establishes a maximum of $50,000 that those regulations do not contain.
• Relocation assistance determined by administrative law judge: Allows a person rejecting the acquiring authority’s offer of relocation benefits to initiate a contested case hearing before an administrative law judge, whose decision is final.

This legislation is a direct response to the proposed CapX 2020 line that is moving forward that will affect many regions of the state. The CapX 2020 line will go from Brookings to Hampton affecting Minnesotans in Lincoln County in the west through, Scott, Rice, Dakota and Goodhue counties and points south toward the Wisconsin border.

The CapX 2020 power lines are moving forward as we speak and it’s critical we ensure that the rights of Minnesota property owners are protected.

Thanks to my constituents and all Minnesotans who spoke up about their concerns about this issue.

We never would have built the bipartisan coalition needed to pass this new law had it not been the citizens across the state who spoke up and contacted their legislators. This is a great example of our democracy in action.

IT PASSED IN THE HOUSE — THE FULL HOUSE!  Now on to finish up in the Senate.

Thanks to Rep.  David Bly for authoring HF 1182, to remove the eminent domain law exemptions for public service corporations — our “good neighbor” utilities who thought they were special.  Thanks also to the other co-authors  Falk ; Paymar ; Buesgens ; Brod ; Morrow ; Drazkowski ; Haws

Here’s Bly’s press release — and kudos to Russ Martin, United Citizens Action Network, for all his work, all Judy’s work… and then there’s Joyce Osborn too!  Anyway, the press release:

NEWS RELEASE
BLY PROTECT RIGHTS OF HOMEOWNERS FROM EMINENT DOMAIN

Bipartisan legislative victory passes 123 to 5

ST. PAUL – Legislation authored by Rep. David Bly (DFL - Northfield) passed the House today that would increase fairness and balance for Minnesota homeowners whose land may be taken through eminent domain process. Passed on a wide bipartisan vote of 123 to 5, Bly’s bill repeals the special exemptions for eminent domain given to utility companies involving high-voltage transmission lines and natural gas and petroleum pipelines. Bly called the bill a victory for private property rights for all Minnesotans.

“A constituent of mine named Russell Martin came to me in 2008 when he found out an oil pipeline was going to be built across his land. A year later he found out the CAPX 2020 powerline was sited to cross his property. I began hearing from other property owners across the state on this issue and drafted the current bill,” said Bly. “This bill will protect homeowners like Russell who deserve to have a fair process when they are put in this unfair position.”

After United States Supreme Court broadened the ability of government to use eminent domain in 2005, the Minnesota Legislature took action to limit the power of state government to use eminent domain in order to protect and increase fairness to property owners. However, as part of those changes, “public service corporations” (PSC) were exempted from the new regulations and restrictions. Bly said this exemption has created a paradox in state law that is unfair to Minnesota property owners.

“If a non-profit entity like the state government wants to use your land for a public park, you have far more protections than if a for-profit utility company wants to run a high-voltage power line through your property,” said Bly. “In the interest of fairness to Minnesota’s property owners, we are simply holding these specific utility companies to the same standard we hold our own government.”

This legislation is a direct response to the proposed CapX 2020 line that is moving forward that will affect many regions of the state. The CapX 2020 line will go from Brookings to Hampton affecting Minnesotans in Lincoln County in the west through, Scott, Rice, Dakota and Goodhue counties and points south toward the Wisconsin border.

“The CapX 2020 power lines are moving forward as we speak and it’s critical we ensure that the rights of Minnesota property owners are protected,” said Bly.

The Minnesota Senate is expected to act on a similar bill soon at which point it will be sent to the Governor for his signature.

Here’s what Rep. Steve Drazkowski has to say about it — he wouldn’t co-author last year, but this year, with all the constituents calling, his name is on it — this is from his email blurb (I omitted the part about the federal health care bill, sorry, but my stomach just cannot abide by his rant):

Over the past year in southeastern Minnesota, property owners have been dealing with the uncertainties brought forward by the development of the CapX2020 project and the plans for the development of a 345 Mhz high powered transmission line.  The proposed route runs right through house district 28B.  From the outset, there were two items that I have communicated my commitment to doing to help limit the impact that this line would have on private property rights in our district.

The first was to work with government agencies, the CapX consortium, and other legislators to encourage the selection of a route that maximized the use of existing corridors and minimized the impact on private property.  At this point, it appears that our work has paid off, as the proposed route uses existing corridors to a high degree, and the impact on private property should be minimized.

The second goal was to have eminent domain reform passed into law - so that the very same eminent domain restrictions applied to utilities as it does to local units of government.  This will ensure that when property is taken for utility projects like CapX, that property owners are placed in the very best position to ensure fair and honest compensation from the utility company.  I am happy to report that this afternoon, HF1182, a bill that I co-sponsored - and a bill that accomplishes the eminent domain reforms that our state lacks, passed the House Floor a vote of 123-5!  I am confident that the senate companion will also pass, that we will get a favorable conference committee report, and that the bill will be signed into law very soon.

Now, everyone call the Governor and let him know that we expect him to sign that bill when it lands on his desk.  Oh, but wait, he’s not there… where is he campaigning these days…

It’s a little confusing, because we’re inbetween, the House isn’t in session, but last Wednesday was the House Energy and Civil Justice committees hearing on HF 1182 and morphs of it since, and anticipate future morphs too.  In essence,  a free ranging discussion of utilities’ exemption from eminent domain laws under Minn. Stat. 117.189.

THIS WILL BE AN ISSUE IN THE UPCOMING LEGISLATIVE SESSION.  It will go to both of these committees, so to get a head start, let’s make sure everyone on the committee knows that utilities are not special!  Utilities should not be exempted from eminent domain landowner protections:

http://www.commissions.leg.state.mn.us/lec/members.htm
Here’s Senate member info:
http://www.senate.leg.state.mn.us/members/index.php?ls=#header
Here’s House member info:
http://www.house.leg.state.mn.us/members/hmem.asp

Once more with feeling, thanks to Rep. David Bly for being ON this, persevering to support CapX affected landowners in 25B and throughout Minnesota.

Here’s 117.189 with links to see what all perks utilities get:

117.189 PUBLIC
SERVICE CORPORATION EXCEPTIONS.

Sections 117.031; 117.036; 117.055, subdivision 2, paragraph (b); 117.186;
117.187; 117.188; and 117.52,  subdivisions 1a and 4, do not apply to public service corporations. For purposes of an award of appraisal fees under section 117.085,
the fees awarded may not exceed $1,500 for all types of property except for a
public service corporation’s use of eminent domain for a high-voltage
transmission line, where the award may not exceed $3,000.

Those appraisal award limits were raised, but as Joyce Osborn, United Citizens Action Network, testified, her appraisal for the pipeline was more than twice that ceiling, so that still needs work.

The appraiser’s testimony was best, direct hard hitting front-lines view, that the utilities do not need this exemption, and that the exemption is a subsidy for utilities.  That’s clear, simple, and it’s the truth.  Why this was allowed… well, think about it.  It was a time, 2006, when they supposedly were trying to reinforce the state’s eminent domain landowner protections after the Kelo decision.  But these utility exemptions — there was no explanation of why, but it would seem to me that, given the Kelo focus on “public purpose,” utilities would be awfully skittish about taking land for something like CapX 2020, which is private purpose, PROFIT, and not at all necessary for their charge as public service corporations.

Then there’s the “party line” from ???  Rep. Mike Beard is parroting it, that the utilities can be exempted, should be exempted, because they have to go through the PUC process.  SAY WHAT!!!???!!!  The Certificate of Need process has nothing whatsoever to do with eminent domain.  A Certificate of Need is a basis for “need” claim for eminent domain, but it’s not true that, as he said, that utilities can’t get land without a Certificate of Need.  It’s very possible, either it’s a project that falls below the CoN threshold, or it’s one that goes under Local Review.

And Rep. Steve Drazkowski was flailing and he deserves one of these — do his constituents know how he behaves?

Here’s the flyer we sent that he was waving around as if it were some terrorist manifesto:

NoCapX 2020 & United Citizens Action Network Newsletter

Let’s see … notice of public meetings, the Nov. 4 hearing, info on Buy the Farm and questions landowners should ask… sounds pretty radical to me!!!

And speaking of public meetings, it’s time to gear up for the Brookings EIS “meetings” (whatever happened to public HEARINGS?):

PUBLIC INFORMATION MEETING DATES & LOCATIONS

It’s filed…

Appeal - NoCapX 2020 & U-CAN

CETF has appealed too, but I don’t have it electronically.

ONWARD!!! (to Susquehanna-Roseland Discovery, due today, AAAAARGH!)

This is one of those things that’s been bugging me for a long time, and I’m finally getting around to looking it up.  There are a few twists and turns, and this is a long post, with a lot of links and a lot of audio listening for you to dig in if you’re interested.  If you’re a landowner, you sure better be!  If you’re a landowner affected by utility infrastructure, this is required reading and listening!

Here we go!

History of Minn. Stat. 117.189

Here’s the statute (the specific statutory cites below are linked):

117.189 PUBLIC SERVICE CORPORATION EXCEPTIONS.

Sections 117.031; 117.036; 117.055, subdivision 2, paragraph (b); 117.186; 117.187; 117.188; and 117.52, subdivisions 1a and 4, do not apply to public service corporations. For purposes of an award of appraisal fees under section 117.085, the fees awarded may not exceed $500 for all types of property.
History:

2006 c 214 s 14

Short version - this bill was a bipartisan sell-out that exempted CapX 2020 and any other public service corporation project from eminent domain that every other entity must comply with.  Why on earth would they do this… or rather, what innocent explaination is there for this 117.189 section of the bill?

So far that I’ve heard (only ~6 hours thus far), Sen. Scott Dibble is
the only one asking “Why exempt public service corporations?”

The only Senators who voted against this were:

Anderson, Cohen, Dibble, Hottinger, Marko, Moua, Pappas, Ranum, Skoglund

The only Reps who voted against this were:

Davnie, Ellison, Goodwin, Hausman, Hornstein, Huntley, Johnson, S., Kahn, Lanning, Lenczewski, Mahoney, Mariani, Mullery, Paymar, Thao, Wagenius, Walker

Please take a few minutes and send them a thank you note!  Here’s a link to their emails:

House Members

Senate Members

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First, some more history, going back to my all time favorite bill:

2005 TRANSMISSION OMNIBUS BILL FROM HELL

Remember, this was the bill that grew from the deal the enviros did in 2003, incorporating the material terms of that deal into the 2005 Omnibus bill.

ME3, MCEA, Waltons, NAWO -TRANSLink deal

And… why… look, there’s language in the 2005 Transmission Omnibus Bill from Hell mandating an “Eminent Domain Landowner Compensation — Landowner Payments Working Group!”

55.35                             ARTICLE 11
55.36               EMINENT DOMAIN LANDOWNER COMPENSATION
56.1      Section. 1.  [LANDOWNER PAYMENTS WORKING GROUP.]
56.2      Subdivision 1.  [MEMBERSHIP.] By June 15, 2005, the
56.3   Legislative Electric Energy Task Force shall convene a landowner
56.4   payments working group consisting of up to 12 members, including
56.5   representatives from each of the following groups:
56.6   transmission-owning investor-owned utilities, electric
56.7   cooperatives, municipal power agencies, Farm Bureau, Farmers
56.8   Union, county commissioners, real estate appraisers and others
56.9   with an interest and expertise in landowner rights and the
56.10  market value of rural property.
56.11     Subd. 2.  [APPOINTMENT.] The chairs of the Legislative
56.12  Electric Energy Task Force and the chairs of the senate and
56.13  house committees with primary jurisdiction over energy policy
56.14  shall jointly appoint the working group members.
56.15     Subd. 3.  [CHARGE.] (a) The landowner payments working
56.16  group shall research alternative methods of remunerating
56.17  landowners on whose land high voltage transmission lines have
56.18  been constructed.
56.19     (b) In developing its recommendations, the working group
56.20  shall:
56.21     (1) examine different methods of landowner payments that
56.22  operate in other states and countries;
56.23     (2) consider innovative alternatives to lump-sum payments
56.24  that extend payments over the life of the transmission line and
56.25  that run with the land if the land is conveyed to another owner;
56.26     (3) consider alternative ways of structuring payments that
56.27  are equitable to landowners and utilities.
56.28     Subd. 4.  [EXPENSES.] Members of the working group shall be
56.29  reimbursed for expenses as provided in Minnesota Statutes,
56.30  section 15.059, subdivision 6.  Expenses of the landowner
56.31  payments working group shall not exceed $10,000 without the
56.32  approval of the chairs of the Legislative Electric Energy Task
56.33  Force.
56.34     Subd. 5.  [REPORT.] The landowner payments working group
56.35  shall present its findings and recommendations, including
56.36  legislative recommendations and model legislation, if any, in a
57.1   report to the Legislative Electric Energy Task Force by January
57.2   15, 2006.

Now, let’s take a look at who was on that Committee:

REPRESENTATIVE MEMBERS

1. Jim Musso (Xcel Energy) representing transmission owning investor-owned utilities
2. Bob Ambrose (Great River Energy) representing electric cooperatives
3. Mrg Simon (Missouri River Energy) representing municipal power agencies
4. Chris Radatz-representing the Minnesota Farm Bureau
5. Tim Henning (farmer) representing the Minnesota Farmers Union
6. Jack Keers (Pipestone County Commissioner) representing county commissioners
7. Robin Nesburg (Rural Appraisal Services) representing real estate appraisers

AT LARGE MEMBERS

8. Beth Soholt (Wind on the Wires)
9. John Nauerth III (farmer)
10. George Crocker (North American Water Office)
11. Bob Cupit (Public Utilities Commission)
12. Bill Blazar (Minnesota Chamber of Commerce)

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Let’s look at the Senate bill, SF 2750 and the House bill, HF 2846.

SF 2750

Senate Authors, none added after introduction:    Bakk ; Kiscaden ; Bachmann ; Chaudhary ; Kubly

Bill as introduced, had the Public Service Corporation exemption AND the appraisal fee limitation:

12.8        Sec. 14. [117.189] PUBLIC SERVICE CORPORATION EXCEPTIONS.
12.9    Sections 117.031; 117.036; 117.055, subdivision 2, paragraph (b); 117.186; 117.187;
12.10   117.188; and 117.52, subdivisions 1a and 4, do not apply to public service corporations.
12.11   For purposes of an award of appraisal fees under section 117.085, the fees awarded may
12.12   not exceed $500 for all types of property.

On the Senate side, there are some interesting statements in the first Committee hearing, Judiciary, discussion about limiting who can speak at county meetings about eminent domain (!!!), limitations of attorneys’ fees… and there’s a discussion that I’m trying to transcribe … will post soon…

Senate Judiciary - March 9, 2006 - PART I

Senate Judiciary - March 9, 2006 - PART II

*****************************************************

HF 2846

Introduced with these authors: House Authors    Johnson, J. ; Thissen ; Smith ; Davids ; Dill ; Paulsen
By the end, here is who signed on to this:
House Authors        Johnson, J. ; Thissen ; Smith ; Davids ; Dill ; Paulsen ; Penas ; Moe ; Garofalo ; Nelson, P. ; Wardlow ; Magnus ; Cybart ; Olson ; Westrom ; Erickson ; Klinzing ; Charron

As introduced it had the Public Service Corporation exemption:

5.25         Sec. 9. [117.189] PUBLIC SERVICE CORPORATION EXCEPTION.
5.26     Sections 117.031, 117.186, 117.187, and 117.188 do not apply to public service
5.27     corporations.

*** The sentence about appraisals did not appear in it as introduced or in the 5 engrossments online.

Here’s the House Research explanation of that paragraph:

12      Public service corporation exception. Provides that the provisions for attorneys’ fees (section 4 ), compensation for loss of going concern (section 8 ), minimum compensation (section 10 ), and limitations (section 11 ), do not apply to public service corporations.

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Conference Committee

04/12/2006      Senate conferees       Bakk, Murphy, Betzold, Higgins, Ortman
04/12/2006      House conferees       Johnson, J.; Abrams; Davids; Anderson, B.; Thissen

*****************************************************

Here are the reports of House and Senate adoption of Conference Committee Report, including votes:

Senate Adopted Conference Committee Report, bill repassed

House Adopted Conference Committee Report, bill repassed

YEAAAAAAAAAA!  RUS EIS is on the way!!!

So what’s the big deal that the Rural Utility Service is doing an EIS on CapX 2020?  And just the LaCrosse line part of CapX 2020?

Consider the piss-poor excuse of “environmental review” done in the Certificate of Need proceeding, when what was needed was the level of review in a RUS EIS.  Look at the state’s “scope” and look what was EXPRESSLY EXCLUDED:

Scope of Environmental Report

Then, look at the result:

Environmental Report

Environmental Report - Maps

The state scope is very important because Commerce blew us off, saying that federal review wasn’t going to happen:

And they specifically said an EIS by RUS was not anticipated and blew off so many of us saying that they needed to do a joint EIS:

**************

So now, it appears, there will be an RUS EIS, because of the RUS money going in for Dairyland, and it’s stating what we knew all along.  By doing it this way, by doing it at this stage, at this late date, it limits RUS  review to just this one part of what we know is one big honkin’ project, not just this Phase I group, but also Phase II and Phase III and who knows what all else.  They admit it in their Application, Appendix A-1 where they list the big chart of “common facilities.”

As Carter Bishop always said in Contracts, “Well…. that’s one option.”   Here’s another:

1) The important thing in this RUS EIS is to tie it all together, that this is just one small part of the plan, phased and connected actions, and they must address all:

* Applied for in CoN as ONE PROJECT
* Needs all pieces to work
* Application lists the full spectrum of “common elements” that they want to build (see Application, Appendix A-1)
* The LaX to mid-WI has been announced
* Mississippi River is “only” one crossing and Minnesota River has two, TWICE the impacts, both are designated Scenic Byways, both have Federal Wildlife Management Areas.

2) Systems alternatives must be addressed and the NO BUILD alternative must be addressed - and not “NO BUILD” for just that part, but for ALL OF IT.

3) Another thing to bring in here is impact of this line if it is used for various capacity ranges of coal.  The wind lobby talks of getting 700MW of wind, BFD where potential capacity means it’s about 1/6 of capacity… sigh….this was NOT addressed in any way.

* Line has 4,100MVA capacity.
* MISO goal is to displace natural gas with coal
* EIS must address emissions impacts of various scenarios of coal generation on CapX lines (and not just CO2):
o 10% -    410 MW
o 30% - 1,230 MW
o 50% - 2,050 MW
o 75% - 3,033 MW
o 85% - 3,485 MW

Here’s a comparative emissions chart from a recent MPCA analysis, with some ballpark comparative levels for NOx, SO2, PM, Hg, CO2, and you can figure some estimates for 410, 1,230, 2,050, 3,033, 3,485 and 4,100MW of polluting:

In case it’s not legible, here’s the chart in pdf:

MPCA Final - from Mesaba Project

In short, if they put more coal on line, what emissions are enabled?  And then, what are impacts, because it would be wafting over Minnesota!  Dumping on Minnesota!

That all said, it seems to me that those are the things that need to be addressed in this EIS!  Those things that the state wouldn’t touch… wouldn’t touch because they know it poses a problem.  Now’s our chance!

Three cheers for Rep.  David Bly and Sen. Kevin Dahle, who authored a bill for repeal of Minn. Stat. 117.189, which is the exemption for Public Service Corporations from most of the laws of eminent domain.

117.189 PUBLIC  SERVICE  CORPORATION EXCEPTIONS.

Sections 117.031; 117.036; 117.055, subdivision 2, paragraph (b); 117.186; 117.187; 117.188; and 117.52, subdivisions 1a and 4, do not apply to public service corporations. For purposes of an award of appraisal fees under section 117.085, the fees awarded may not exceed $500 for all types of property.

That statute gives them unfair advantage when condemning land, and now that we’ve got CapX 2020 and Green Power Express, and all sorts of awful transmission ideas coming down the pike, it’s important that they not get an advantage, and it’s important that landowners have all their constitutional protections under law.

Here’s the Text:

H.F. No. 1182,  as introduced - 86th Legislative Session (2009-2010)

Posted on Feb 27, 2009

1.1 A bill for an act

1.2 relating to eminent domain; repealing certain exemptions for public service
1.3 corporations;amending Minnesota Statutes 2008, section 117.225; repealing
1.4 Minnesota Statutes 2008, section 117.189.
1.5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

1.6 Section 1. Minnesota Statutes 2008, section 117.225, is amended to read:
1.7 117.225 EASEMENT DISCHARGE.
1.8 Whenever claiming that an easement acquired by condemnation is not being used
1.9f  or the purposes for which it was acquired, the underlying fee owner may apply to the
1.10 district court of the county in which the land is situated for an order discharging the
1.11 easement, upon such terms as are just and equitable. Due notice of said application shall
1.12 be given to all interested parties. Provided, however, this section shall not apply to
1.13 easements acquired by condemnation by a public service corporation now or hereafter
1.14 doing business in the state of Minnesota.

1.15 Sec. 2. REPEALER.
1.16 Minnesota Statutes 2008, section 117.189, is repealed.

It was introduced today.  Senate File 1112 went to Judiciary, and HF 1182 went to Gov Ops.