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St. Croix County judge to issue written decision about Forest Voice

By LeAnn R. Ralph

HUDSON — A St. Croix County judge said he will issue a written decision concerning a request by the Forest Voice to add information to the record of the Wisconsin Public Service Commission’s approval of the Highland Wind Farm.

Judge Edward Vlack heard oral arguments in St. Croix County Circuit Court May 21 from attorneys representing Highland Wind Farm and an attorney representing the citizens’ group the Forest Voice.

The Forest Town Board has asked for a judicial review of the PSC’s decision to approve the Highland Wind Farm application to construct wind turbines in the Town of Forest.

The judicial review will not involve any additional information being added to the record, but will only be a review of the existing record.

Members of the Forest Voice want to add information to the record for the decision that the PSC issued last October.

On October 25, the PSC granted a Certificate of Public Convenience and Necessity for Highland Wind Farm to build more than 40 wind turbines in the Town of Forest that are expected to generate up to 102.5 megawatts of electricity.

The substation for Highland Wind Farm will be located in the Town of Cylon.

The PSC denied a request in December from the Forest Town Board asking the PSC to reconsider its approval of the Highland Wind Farm application.

According to state law, any party to a proceeding has 20 days to file additional information.

The Forest Voice was a party to the initial PSC proceeding for the Highland Wind Farm application, and by law, should have filed any additional information for the record within 20 days of the PSC’s decision.

On March 19, the Forest Voice filed a motion to be allowed to participate, and attorneys for Highland Wind Farm then filed a motion on April 1 to have the Forest Voice’s participation stricken.

At issue for Judge Vlack to consider are two Supreme Court cases dealing with participation and time limits.

Discretion

The key question, said Judge Vlack, is what discretion does the court have in allowing participation if it does not occur within the 20-day time limit set by state law.

The law says a party has a right to participate within the time limit, but the law does not say 20 days or as the court may allow, Judge Vlack said.

An attorney representing the citizens’ group said the Forest Voice could not make the 20-day time limit because the group did not have enough money to pay an attorney.

The Forest Voice has made several requests to the PSC for public money to pay for attorneys and consultants.

In 2012, the Forest Voice asked for nearly $300,000 in public funds and was awarded $20,000 in July of that year.

During the June 21, 2013, PSC meeting, the Forest Voice filed a request with the PSC for money to help them with their case in the amount of $199,605.

The Forest Voice also filed a supplemental request for intervenor compensation in the amount of $37,350.

The PSC modified the request and awarded $32,000 in supplemental intervenor compensation for the Forest Voice to participate in the reopening of the Highland Wind Farm application.

The Wisconsin Legislature created the intervenor compensation program in 1983 so that financial assistance would be available for individuals or organizations who wished to intervene in a PSC proceeding.

The Forest Town Board has spent around $400,000 so far on legal fees and expert witnesses to fight against the Highland project.

What harm?

The Forest Town Board has asked the circuit court to review the record concerning the PSC’s approval of the Highland Wind Farm project, and one question that arises is — can the Forest Town Board adequately protect the Forest Voice? asked Marcel Oliveira of Reynolds & Oliveira LLC out of Madison, who is representing the Forest Town Board.

The issue at hand is a review of the record, but there would be “no harm” in bringing in the Forest Voice and allowing the group to file a brief with the court, Oliveira said.

A brief is a legal argument about why a certain party should prevail in a lawsuit.

No further evidence would be added to the record, and the brief would not prejudice the PSC or Highland Wind Farm, Oliveira said.

In legal terms, “prejudice” means to bring harm or disadvantage to a case.

What harm would come from allowing the Forest Voice to add to the record? asked Judge Vlack.

An attorney representing the PSC noted that it would be an issue of timely resolution for Highland Wind Farm because the Highland application was first submitted in 2011 and it is now 2014.

One more brief “would not be a big deal” and would not prejudice the case against  Highland Wind Farm, said the attorney representing the Forest Voice.

The hearing lasted for an hour, and at the end of that time, Judge Vlack said “there was no way” that he would make a decision from the bench and that he would instead issue a written decision.

Judge Vlack did not give a timeframe for completing his decision.

Tee-shirts

Prior to the start of the May 21 court hearing, the hallway in front of the courtroom was filled with Forest Voice members wearing “no turbines” tee-shirts, buttons and stickers.

Two St. Croix County sheriff’s department deputies were assigned to keep order among the group.

Prior to the Highland Wind Farm/Forest Voice hearing, no one from the hallway was allowed into the courtroom because the court was in the process of initial appearances for jail prisoners.

At one point, members of the Forest Voice attempted to enter the courtroom en masse but were turned back by the deputies.

At the appointed time of the hearing, one deputy announced that there was room for 56 people in the courtroom and that members of the Forest Voice would have to decide who would go into the courtroom.

Standing inside of the courtroom would not be allowed, the deputy said.

Group organizers went up and down the hallway cautioning people not to moan, groan, sigh or make comments during the court proceedings.

After the courtroom was filled and Judge Vlack had started the hearing, he informed the group that he expected them to remember they were in a court of law and to act accordingly.

Perhaps only half of the Forest Voice members who came to the courthouse ended up with a seat inside of the courtroom.