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Here's an order from the Administrative Law Judge in the Sandpiper pipeline application denying the subpoenas requested by the intervenor Minnesota Center for Environmental Advocacy
Here's an order from the Administrative Law Judge in the Sandpiper pipeline application denying the subpoenas requested by the intervenor Minnesota Center for Environmental Advocacy
Here's an order from the Administrative Law Judge in the Sandpiper pipeline application denying the subpoenas requested by the intervenor Minnesota Center for Environmental Advocacy
OAH 8-2500-31260
MPUC Docket No. PL-6668 / CN-13-473
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE PUBLIC UTILITIES COMMISSION
In the Matter of the Application of North TWENTIETH
Dakota Pipeline Company, LLC for a PREHEARING ORDER
Certificate of Need for the Sandpiper
Pipeline Project in Minnesota
This matter came before Administrative Law Judge Eric L. Lipman upon the
‘submission of two sets of subpoena requests from the Friends of the Headwaters.
The first set of requests seeks responses, under oath, to a list of questions from
certain employees of the Minnesota Pollution Control Agency (MPCA). These subpoena
requests inquire into the development of the MPCA’s comments to the Minnesota Public
Utilities Commission, dated August 21, 2014, and seek responses from the listed
agency officials to the rebuttal testimony of Sara Ploetz. Ms. Pleotz is a Senior
Environmental Analyst with Enbridge Employee Services, Inc
The second set of subpoena requests seeks the presence of certain employees
of the Minnesota Department of Natural Resources (DNR) at the evidentiary hearing,
and for those employees to lend their “expertise on the various proposed pipeline
locations” during examination by the parties.
While MPCA and DNR, like other interested persons, submitted comments to the
Commission in this matter, neither agency petitioned to intervene as a party to the
contested case.
The following parties earlier noted their appearance in this matter.
Christina K. Brusven, John E, Drawz and Patrick D.J. Mahlberg, Fredrikson &
Byron, P.A.; Kevin Walli and John R. Gasele, Fryberger, Buchanan, Smith & Frederick,
P.A.; James D. Watts, Enbridge Energy Limited Partnership; and Randy V. Thompson,
Nolan, Thompson & Leighton, appeared on behalf of North Dakota Pipeline Company
LLC (NDPC).
Byron E. Starns, Brian M. Meloy and Andrew J. Gibbons, Stinson Leonard Street,
appeared on behalf of Kennecott Exploration Company (Kennecott).
Gerald W. Von Korif, Rinke Noonan, appeared on behalf of the Carlton County
Land Stewards (CCLS).Frank Bibeau, Attorney at Law, and Peter Erlinder, International Humanitarian
Law Institute, appeared on behalf of Honor the Earth.
Joseph Plumer and Jessica Miller, Tribal Attorneys, appeared on behalf of the
White Earth Band of Ojibwe (WEBO).
Leigh Currie and Kathryn Hoffman, Minnesota Center for Environmental
Advocacy, and Richard Smith and Eileen Shore, Steering Group Members, appeared
on behalf of the Friends of the Headwaters (FOH).
Benjamin L. Gerber, Manager for Energy Policy, appeared on behalf of the
Minnesota Chamber of Commerce (the Minnesota Chamber).
Kevin Pranis, Business Representative, appeared on behalf of the Laborers’
District Council of Minnesota and North Dakota (Laborers).
Ellen O. Boardman, O'Donoghue and O'Donoghue LLP, and David L. Barnett,
Special Representative, appeared on behalf of the United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and
Canada (United Association).
Neil J. Roesler, Vogel Law Firm, and Jon Godfread, Vice President of
Governmental Affairs, and Helene Herauf, Government and Regulatory Affairs
Specialist, appeared on behalf of the Greater North Dakota Chamber of Commerce (the
North Dakota Chamber)
Julia E. Anderson and Peter Madsen, Assistant Attorneys General, appeared on
behalf of the Minnesota Department of Commerce, Division of Energy Resources,
Energy Regulation and Planning (DOC-DER).
Linda S. Jensen, Assistant Attorney General, appeared on behalf of the
Minnesota Department of Commerce, Energy Environmental Review and Analysis
(DOC-EERA).
Based upon the submissions of the parties, and upon all of the files in the record,
IT IS HEREBY ORDERED THAT:
1. The requests of the Friends of the Headwaters are DENIED without
prejudice to re-filing.
2. FOH may renew its requests if its submissions demonstrate that the
testimony sought relates to either:
401301) 2(a) “specific occurrences in dispute,” to which the witness can
testify from personal knowledge;’ or
(b) opinions from the listed experts that were earlier-requested
by a party to the contested case.”
(c) FOH may also renew its requests if its submissions
demonstrate the necessity for such an order under the
balancing test outlined in Kaufman v. Edelstein, 539 F.2d
811, 822 (2d Cir. 1976) — specifically, whether:
i, the witness is a unique expert;
ii. it is unlikely that any comparable witness will willingly
testify;
ii, the sought-after testimony is a previously formed or
expressed opinion or a new one; and,
iv. the likelihood that the witness will be later asked to
testify in similar matters.°
3. Any renewed request shall address how FOH's proffer of the listed
witnesses will comply, if at all, with the prehearing disclosure
provisions of the Seventeenth Prehearing Order and paragraphs 19
through 22 of the Second Prehearing Order.
Dated: January 16, 2015
s/Eric L. Lipman
ERIC L. LIPMAN
Administrative Law Judge
* See generally, Fed. R. Civ. P. 45 (d)(3)(B)(i) (2014)
? Id, See also, NOTES OF ADVISORY COMMITTEE ON RULES—1991 AMENDMENT, F.R. Civ. P. 45 (’A growing
problem has been the use of subpoenas to compel the giving of evidence and information by unretained
experts. Experts are not exempt from the duty to give evidence, even if they cannot be compelled to
prepare themselves to give effective testimony, but compulsion to give evidence may threaten the
intellectual property of experts denied the opportunity to bargain for the value of their services.") (citation
omitted).
2 Kaufman v. Edelstein, §39 F.2d 811, 822 (2d Cir. 1978); accord, Mitzel v. Employers Ins. of Wausau,
878 F 2d 233, 236 (8th Cir. 1980)
[40139/1) 3MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS
600 North Robert Street
Saint Paul, Minnesota 55101
Mailing Adres: Voice (651) 361-7900,
P.O, Box 64620 TTY: (661) 61-7878
St Paul, Minnesota 55164-0620 Fee (1) 535-0800,
January 16, 2015
See Attached Service List
Re: In the Matter of the Application of North Dakota Pipeline Co., LLC for
a Certificate of Need for the Sandpiper Pipeline Project in Minnesota
OAH 8-2500-31260
MPUC
To All Persons on the Attached Service List:
Enclosed and served upon you is the Administrative Law Judge's TWENTIETH
PREHEARING ORDER in the above-entitled matter.
If you have any questions, please contact my legal assistant Katie Lin at
(651) 361-7911 or katie.lin@state.mn.us.
Sincerely,
ERIC L. LIPMAN
Administrative Law Judge
ELLKil
Enclosure
cc: Docket CoordinatorSTATE OF MINNESOTA
OFFICE OF ADMIN!
ISTRATIVE HEARINGS,
PO BOX 64620
600 NORTH ROBERT STREET
‘ST. PAUL, MI
INNESOTA 55164
CERTIFICATE OF SERVICE
[In the Matter of the Application of North
OAH Docket No.:
Dakota Pipeline Co., LLC for a Certificate of | 8-2500-31260
Need for the Sandpiper Pipeline Project in
Minnesota
Katie Lin, certifies that on January 16, 2015 she served the true and correct
TWENTIETH PREHEARING ORDER by eService, and U.S. Mail, (in the manner
indicated below) to the following individual
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