ALJ backs down – U-CAN retains party status

Filed under:Uncategorized — posted by admin on August 22, 2008 @ 7:59 am

Here’s the ALJ’s Order:

ALJ\’s Order – U-CAN and Prairie Island

And the important part:

The United Citizens Action Network shall retain its status as a party to the proceedings.

The ALJ makes a disturbing reference in this Order to a conversation in the hall, ex parte, not on the record or reflected in any filed documents:

On August 12, 2008, Joyce Osborne and Judy Martin, members of United Citizens Action Network (UCAN), appeared at the evidentiary hearing and asked questions of David Birkholz who prepared the Environmental Report required in this proceeding. At that time, Ms. Osborne told the undersigned that UCAN may withdraw.

What’s disturbing is that the ALJ saw fit to mention part of an ex parte conversation between U-CAN representatives and herself in an Order — an ex parte discussion between an ALJ who should have explained the ex parte rules to the unrepresented U-CAN representatives who don’t know what ex parte contact or conduct means, who should have known better than to have an ex parte conversation in the first place. The judge, knowing they’re not represented, has a wide ranging substantive conversation, including her Order to Show Cause and then uses a portion, just a portion, in her Order? Highly irregular. Beyond the use of an off the record ex parte comment, it was used in a way that misrepresents the general feelings of these representatives U-CAN. This expression that “U-CAN may withdraw” was a small part of a much larger conversation including statements expressing frustration with the process, that they’re utter novices in a sophisticated proceeding, that they are not represented and can’t afford representation, that they didn’t know what to do about the Order to Show Cause, that they wanted more time to address the Order to Show Cause, and have had to deal with the pipeline which is being built based on an Order of ALJ Heydinger, and a recitation of all of the problems they’ve had in dealing with that pipeline. How very, very strange that she would make a selective reference to this ex parte conversation …

Two weeks ago, the ALJ made it clear that she wanted to give U-CAN the boot, saying that she was going to issue an Order to Show Cause and that U-CAN and Prairie Island Indian Community would have to show why they should remain (there’s been an increasing effort from OAH to limit parties in proceedings, I’ve seen too many of these efforts myself). She did issue the Order:

Order to Show Cause – U-CAN

Order to Show Cause – Prairie Island Indian Community

grrrrrrrrrrr… Prairie Island opted out, asking to withdraw, and U-CAN did respond, and oh, did U-CAN show cause:

U-CAN Response to Order to Show Cause

Affidavit of Russell & Judy Martin

No way should they be tossed out of this proceeding, they are the affected landowners already under siege of MinnCan pipeline. But they’re a wild card in this proceeding… can’t have that, now, can we…

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