UCAN Motion Denied!

Filed under:Uncategorized — posted by admin on March 1, 2008 @ 1:04 pm

UCAN had filed a Motion regarding notice to landowners:

UCAN Motion to Enforce Citizens’ Due Process Rights

The ALJ sent notice that there were 10 days to respond to the Motion, and this is what came in, from two of the parties:

Commerce Energy Facility Permitting response to UCAN Motion to … to…

Applicants’ Response to UCAN Motion

And here is the ALJ, tossing out the Motion:

ALJ Denial of UCAN Motion 2-28-08

What I found interesting about this Order is the distancing from the Environmental Report, interesting to me because I found the Scoping Decision from the Commissioner of Commerce so egregiously limiting. UCAN was complaining about lack of notice for Commerce’s scoping meetings. Here’s what she said in the Order:

Challenges to the development of the Environmental Report are not within the jurisdiction of the Administrative Law Judge. Any such challenge must be reviewed by a declaratory judgment action in the district court. Although the other parties have not challenged the Administrative Law Judge’s jurisdiction to consider UCAN’s claims, jurisdiction may not be waived.

In the judicial context, “jurisdiction” refers to “[t]he legal power and authority of a court to make a decision.” Subject-matter jurisdiction “involves a court’s authority to decide a particular class of actions and its authority to decide the particular questions before it.” This concept goes to the heart of a court’s legal authority to decide a case, and unlike personal jurisdiction, the court cannot acquire subject-matter jurisdiction “either by waiver or consent.”

The Administrative Law Judge has no role to play in the scoping of the Environmental Report or its development and UCAN’s objections are not properly raised in this proceeding. The Commissioner of Commerce has the authority to develop the Environmental Report and has not requested the assistance of the Administrative Law Judge, nor does the Administrative Law Judge have independent authority to oversee the scoping and preparation of the Report. Once the Report is complete, it must be offered into the record of the certificate of need proceeding. At that point, it will be considered as part of the evidence that contributes to the recommendation concerning the certificate of need. At hearing, the parties are free to argue that the preparation or scope of the report was inadequate, and such evidence may affect the weight that the Report is given. The parties may also argue that the report fails to address the issues identified by the Commissioner of Commerce in the decision issued pursuant to Minn. R. 7849.7050, subp 7, and may assert that the Commission should order the Report to be supplemented. The Administrative Law Judge may address those issues in findings, conclusions and recommendations to the Commission.

She referenced a section of MEPA, Minn. Stat. 116D.04, subs. 10 & 13… So that brings us to the next post…

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image: detail of installation by Bronwyn Lace