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A Whole New Rodeo – The Economy

Posted by David Ganje - May 8th, 2020

I give the reader with an opinion piece discussing legal problems the business and ag world now face. I have seen this rodeo before. I have ridden the bronco. It hurts when you fall.  (I prefer falling off of a motorcycle — the drop is less severe).

Don’t kid yourself. Don’t act like the coronavirus effect on the region’s economy is something that will just pass. Yes, it will pass. But it will take a damn long time to pass. Further, this will be a depression, and one not known by history because of the intricate modern phenomenon of government regulations which are indelibly integrated into every aspect of the business and agricultural world.

Those of you old enough will remember how long it took to get out of the 1980s ag recession. I have seen and worked in two recessions in my career — and this one is bigger and quite distinct from either of those. Start now to plan. Start now to deal with the complicated financial problems in the ag and ranch world. They are here.

A modern economy is not simple. It is an admixture of market stupidity, unresponsive government programs, bad banking regulations and management, and overall misjudgments by most everyone. Government won’t bail out the problem. Government might help some, but it is not the remedy. Government can’t foresee, can’t plan, can’t address and can’t correctly manage.

I know, I have also worked for government.

So let’s start our review. Consider that when I use the term ‘business’ it means those in business whether ranchers, farmers, suppliers, service providers, manufacturers, banks and financial institutions. All of these I have represented in my career. When I taught bankruptcy law, I used a medical analogy:  I told the aspiring legal scholars that a bankruptcy filing is akin to surgery. Surgery should always be treated as the last option.

In the medical field, a reasonable first option might be an antibiotic. Here, the antibiotic is a “workout” or a “turnaround,” each of which are bankruptcy alternatives. These alternatives have value and should be attempted by both creditors and debtors as a viable option, not just a throwaway line. I have successfully represented debtors and creditors in turnarounds and workouts. Resolving “stressed-business” issues out of court makes sense when the option is there.

Financial restructuring and workouts involve working closely with a business’s creditors to create, or “workout” plan (often a written contract) to restructure business debts while allowing the business to remain viable. This process allows the business entity to negotiate its debts in a way that retains profitability without involving the court system. This is not as difficult as it might sound — creditors often share the same objective of returning a financially stressed business to good financial health in order to ensure their debts are paid.

A “turnaround” is a separate process from a workout. It may also use the availability of restructuring and workouts, but a turnaround has several other components. A turnaround will generally restructure operational aspects of the business. This may be the solution when the problem lies deeper in the company than lack of cash flow. Where a creditor will not restructure the debts owed to it, a turnaround will be utilized to find alternative financing or new ownership.

Another possibility in a turnaround is the sale of ownership or a portion of ownership, which can provide liquidity at the expense of a change of control of the business.

If the company’s goal is to continue in business, particularly under current ownership, then a creditor or a lender workout should be considered. If new ownership, or a sale of the business in whole or in part, is an acceptable outcome so long as the business is preserved as a going concern, a turnaround can be considered as well.

The process of financial restructuring and negotiating a workout with business creditors is something that should be considered to avoid the expenses and bureaucracy related to a bankruptcy proceeding. The Chapter 11 bankruptcy reorganization process is expensive and time-consuming. The goal of business turnarounds or financial restructuring is to provide a cost effective approach by way of a ‘non judicial/non bankruptcy’ business reorganization, to restructure business debts. 

Courtship and finances have something in common:  timing is everything. When a business is in a stressed situation, neither the business nor its creditors should go in stand-by mode. Negotiations should begin immediately. In both the workout and turnaround, all parties must agree to the terms; both are matters of serious negotiation to be done with all deliberate speed.

Bankruptcy proceedings are not the only way to save a business — sometimes a well-prescribed antibiotic can halt the damage and let the healing begin.

David Ganje practices law in the area of natural resources, environmental and commercial law with Ganje Law Office. His website is Lexenergy.net.

David L Ganje
Ganje Law Offices
Web: lexenergy.net

605 385 0330

davidganje@ganjelaw.com


Commercial law issues in times of a financial crisis

Posted by David Ganje - April 14th, 2020

I present the reader with a short discussion on legal problems the business and ag world now faces. I have seen this rodeo before.  I have ridden the bronco.  It hurts when you fall.  (I prefer falling off of a motorcycle – the drop is less severe)  Don’t kid yourself. Don’t act like the coronavirus effect on the region’s economy is something that will just pass.  Yes, it will pass.  But it will take a damn long time to pass.  Further, this will be a depression, and one not known by history because of the intricate modern phenomenon of government regulations which are indelibly integrated into every aspect of the business and agricultural world.   Those of you old enough will remember how long it took to get out of the 80s ag recession.  I have seen and worked in two recessions in my career.  And this one is bigger and quite distinct from either of those.  Start now to plan. Start now to deal with the complicated financial problems in the ag and ranch world.  They are here.  A modern economy is not simple.  It is an admixture of market stupidity, unresponsive government programs, bad banking regulations and management, and overall misjudgments by most everyone. Government won’t bail out the problem.  Government might help some, but it is not the remedy.  Government can’t foresee, can’t plan, can’t address and can’t correctly manage.  I know, I have also worked for government.

So let’s start our review.  Consider that when I use the term business it means those in business whether ranchers, farmers, suppliers, manufacturers, the oil and gas industry, service providers and financial institutions.  All of whom I have represented in my career.  When I taught bankruptcy law I used a medical analogy: I told the young legal scholars that a bankruptcy filing is akin to surgery.  Surgery should always be treated as the last option. In the medical field, a reasonable first option is an antibiotic.  Here, the antibiotic is a ‘workout’ or a ‘turnaround,’ each of which are bankruptcy alternatives. These alternatives have value and should be attempted by both creditors and debtors as a viable option, not just a throwaway line. I have successfully represented debtors and creditors in turnarounds and workouts.  Resolving “stressed-business” issues out of court makes sense when the option is there.

Financial restructuring and workouts involve working closely with a business’s creditors to create, or ‘workout,’ a plan (often a written contract) to restructure business debts while allowing the business to remain viable. This process allows the business entity to negotiate its debts in a way that retains profitability without involving the court system. This is not as difficult as it might sound – creditors often share the same objective of returning a financially stressed business to good financial health in order to ensure their debts are paid.

A ‘turnaround’ is a separate process from a workout.  It may also use the availability of restructuring and workouts, but a turnaround has several other components. A turnaround will generally restructure operational aspects of the business. This may be the solution when the problem lies deeper in the company than lack of cash flow. Where a creditor will not restructure the debts owed to it, a turnaround will be utilized to find alternative financing or new ownership. Another possibility in a turnaround is the sale of ownership or a portion of ownership, which can provide liquidity at the expense of a change of control of the business.

If the company’s goal is to continue in business, particularly under current ownership, then a creditor or a lender workout should be considered. If new ownership, or a sale of the business in whole or in part, is an acceptable outcome so long as the business is preserved as a going concern, a turnaround can be considered as well.

The process of financial restructuring and negotiating a workout with business creditors is something that should be considered to avoid the expenses and bureaucracy related to a bankruptcy proceeding. The chapter 11 bankruptcy reorganization process is expensive and time consuming. The goal of business turnarounds or financial restructuring is to provide a cost effective approach by way of a ‘non judicial/non bankruptcy’ business reorganization, to restructure business debts.

Courtship and finances have something in common:  timing is everything.  When a business is in a stressed situation, neither the business nor its creditors should go in stand-by mode.  Negotiations should begin immediately.  In both the workout and turnaround, all parties must agree to the terms; both are matters of serious negotiation to be done with all deliberate speed. Bankruptcy proceedings are not the only way to save a business – sometimes a well-prescribed antibiotic can halt the damage and let the healing begin.

David Ganje practices law in the area of natural resources, environmental and commercial law with Ganje Law Office. His website is Lexenergy.net.

David L Ganje
Ganje Law Offices
Web: lexenergy.net

605 385 0330

davidganje@ganjelaw.com


Property Rights and Water Rights

Posted by David Ganje - April 9th, 2020

Website: lexenergy.net
Phone: 605-385-0330
Fax: 605-385-0330
davidganje@ganjelaw.com

DAVID L. GANJE
ATTORNEY AT LAW
GANJE LAW OFFICES
17220 N Boswell Blvd
Suite 130L
Sun City, AZ 85372

______________________________________________________________________________

March 27th, 2020

Via Mail and Email

Chairperson
Davison County Drainage Board                                 
200 E. 4th Ave.
Mitchell, SD 57301-2631

Davison County Planning and Zoning Administrator    (via email)

Davison County Auditor    (via email for distribution to parties in interest)

RE: John Millan Permit (Parcel) Number: 03000-10361-301-00, 03000-10361-292-00, 03000-10361-303-00, and 03000-10361-304-00

Dear Chairperson, members of the Davison County Drainage Board and other interested parties:

  1. By way of introduction I represent Kenneth Hostler of 39872 252nd St, Mt. Vernon, SD 57363 with regard to a pending drain tile permit application filed with Davison County by an applicant described in the permit application as follows  “Name: Millan, John  Address: 25563 406th Ave. Mitchell, SD 57301” with a date of February 27th, 2020.  My client owns affected land described as the southeast Quarter of Section 19 Range 61 West in Davison County South Dakota.  The Drainage Board held a hearing on the application on March 17th, 2020.  Upon information received, the Board made a tentative, non-final decision to grant the permit. As of now, the Board’s informal decision to grant the permit has not been formalized.
  2. My client’s property and legal rights are prejudiced by the described drainage project application. I respectfully report to the Drainage Board and Davison County that the formal granting of this drain tile permit application would be an error of law. The permit should not be granted.
  3. The Board and interested parties should be aware of legal problems and issues with the permit application and the Board’s process regarding the application and hearing, even though I have yet to be favored with information that I requested from the county on this matter.  This letter is not intended as an exhaustive discussion of the problems and legal issues.
  4. The hearing on the Millan drainage project, including its process, denied my client due process under the South Dakota and United States Constitutions.
  5. The applicant did not provide information, data, analysis and facts on the matters listed below, which are all legally required by both due process of law and by the plain language of the Davison County Drainage Ordinance. 
  6. The below requirements at a. through h. were not in the application and were not discussed at the hearing by the applicant and the Board.  Further, the Board’s findings and decision did not consider the following relevant, required information, analysis,  data and facts:
  • a. Flood hazard zones
  • b. Erosion potential
  • c. Water quality and supply
  • d. Agricultural production 
  • e. Environmental quality 
  • f. Aesthetics
  • g. Fish and Wildlife values
  • h. Considerations of downstream landowners and the potential for adverse effect thereon including consideration of the following criteria:
  • i. Uncontrolled drainage into receiving watercourses which do not have sufficient capacity to handle the additional flow and quantity of water shall be considered to have an adverse effect.
  • ii. Whether drainage is accomplished by reasonably improving and aiding the normal and natural system of drainage according to its reasonable carrying capacity, or in the absence of a practical natural drain, a reasonable artificial drain system is adopted.
  • iii. The amount of water proposed to be drained.
  • iv. The design and other physical aspects of the drain.
  • v. The impact of sustained flows.
  1. The project, as planned, will cause surface water to flow in unnatural quantities over and onto my client’s property to reach Dry Run Creek. The application states the outlet distributes collected water from lengthy drain tile, which then “flows into Dry Run Creek.”  The proposal is to have the water flow over and onto my client’s property and then into the described creek, Dry Run Creek, which is on my client’s real property.
  2. The location of the outlet just south of my client’s real property will result in excessive and unnatural distributions of surface water onto my client’s agricultural lands, which are used for crop production, given the total linear feet of drain tile proposed in the application.
  3. The application provides the following representations regarding the project: Length of Solid Drain (Feet) is I5,000; the Length of Perforated Drain (Feet) is 300,000 and with a Total Length of all Drain (Feet) of 315,000. The application contains no adequate disclosure of the amount of water to be drained. The applicant’s response to the county’s required “Explanation of Drain Design” states that it is to “Improve farm ground to increase yields.”  These limited representations do not provide enough information from which a reasonable person could make a decision concerning the drain tile permit application.  And among other deficiencies, the application does not explain how the applicant’s project would comply with drain tile industry standards.
  4. County officials considering granting a permit for land-use under the Davison County Comprehensive Plan are to rely upon scientific and technical sources in evaluating the proposed use.  That was not done in this matter.
  5. The ambiguity of the project as described by the applicant prevented the Board from analyzing its potential impact. For example, the project has an “outlet into [1] unnamed intermittent stream which goes into SD DOT ROW and north across interstate into [2] unnamed intermittent stream which outlets in NE ¼ of Sec 30[.]” This can be read as to mean the first unnamed intermittent stream carries surface water directly into the second intermittent stream. Or it can be read to mean the first intermittent stream goes through the interstate and into the SD ROW, which then channelizes water towards and into the second intermittent stream. A reasonable person cannot make an informed decision from this information.
  6. Upon information and belief the named applicant, John Millan, is not the legal owner of the real properties proposed to be tiled in the application.  An approval of a permit under these circumstances indicates a failure of due diligence in analyzing the tile drainage project and the pending application.  It also indicates that an incomplete and inadequate application has been submitted the Board.
  7. The Board acted arbitrarily in preliminarily granting the permit before considering the factors it was required by law to review. The project if approved will cast unreasonable quantities of water onto my client’s property.
  8. The comments and discussion contained in this letter should not be construed as a waiver of any additional claims or issues of my client not stated.  Nothing in this letter operates as a waiver or release of my client’s legal rights, remedies, powers or privileges including the right to assert other claims.  My client reserves all legal and equitable rights in full with respect to this matter.

                                                                                 Sincerely,

                                                                                David L Ganje

Cc: to applicant


A Court Looks At Problematic Leases

Posted by David Ganje - March 19th, 2020

A well-known lyricist wrote these words: “When logic and proportion have fallen sloppy dead and the white knight is talking backwards.”

I suspect the lyricist did not have leases in mind as she wrote the words. But I take her advice as spot-on when you consider the subject of leases discussed in this opinion piece.

The South Dakota Supreme Court recently decided a quite messy ranch lease case. A ranch lease is a commercial lease. A commercial lease is a  ranch lease. The two are one animal, one species and one thing inseparable.

Those writing and negotiating a ranch lease tend to disregard the wisdom found in the language of a commercial lease. There is little ingenuity and care practiced in the leasing business.

For me the court’s ranch lease decision was deja vu all over again. I’ve seen too many problematic agriculture, farm and commercial leases in my two or three years on this good earth. History repeats itself. It’s easier to follow a pattern from the past when writing and negotiating a lease rather than spending the time and money to get it right.

My comments in this column affect commercial leases, agricultural leases and ranch leases all the same.

Matters related to how a lease will succeed or fail were one of the weaknesses of the written leases in the ranch lease case. As the court discussed the background, it was clear the leases in question did not fully address the lessors and lessees anticipated relationship with a grazing association and with a potential grazing permit. 

No written guidelines were provided in the leases for navigating with a grazing association, or for how a party might obtain a grazing permit. Fraud and deceit claims were also asserted in the litigation.

This trouble could have been avoided by the writing of what I call a legal road map with a legend to the legal map. In legal parlance the leases should have included complete representations and warranties. These are also called “reps and warranties” to insiders in the legal industry.

A representation is a statement in a lease about particular facts, given by the party as true and correct, and given to induce the other party to enter into a lease. A warranty is a promise to legally back up the harmed party if the representation presented in a lease fails or is false.

Representations and warranties allow the parties to allocate responsibility for risks between the lessor and lessee. Typical representations might be a promise that there is no legal condemnation of the property pending, or that there are no disputes or litigation pending or threatened concerning the use and operations of or on the property. Representations and warranties can act in conjunction with due diligence by the prospective lessee. 

Don’t lease property or buy property in the dark. You might run into something you can’t handle.

What do reps and warranties do? They put on the table the legal authority of the lessor to lease the property and importantly these terms govern the use and maintenance of the property during the lease.

A lessor usually wants to lease the property on an “as-is” basis or with limited representations and warranties. This approach eliminates promises about the condition of the property and about the uses to which the lessee may use the property. 

The as-is approach lets the lessor minimize its risk, and reduce any claims in litigation. A lessee on the other hand should want a complete a set of representations and warranties in order to avoid risk, ensure certainty of the nature of the property, and reduce any need for clarifying or enforcing litigation.

No one should rely completely on reps and warranties. Due diligence is still in order. Use your head, not your eagerness to do a deal. It easier to get to a destination with a road map than with my inscrutable intuition.

The lyrics of Grace Slick again provide us with a lesson:  “Remember what the dormouse said; feed your head, feed your head.”

Attorney David Ganje practices in the area of natural resources, environmental and commercial law. His website is  Lexenergy.net


Some water law for landowners and trespassers

Posted by David Ganje - March 14th, 2020

Most things in life are not free, but use and enjoyment of lakes, rivers, and streams in South Dakota often are. In South Dakota, water resources are held in trust by the state for all its citizenry. The SD Department of Environment and Natural Resources regulates water use and makes sure that uses conform to the public interest.

Stemming from South Dakota’s sovereign authority and codified by statute, the public has a right to recreationally use water (like the kayakers pictured above on Split Rock Creek, pictured in SimplySouthDakota.com) when that use conforms to “public purposes.” Public purposes are defined as boating, fishing, swimming, hunting, skating, picnicking, and similar activities.

Free use of public bodies is extended to the underlying bed (including dry bed) between the Ordinary High Water Mark and the Ordinary Low Water Mark, so long as the overlying water body is capable of recreational use. For navigable rivers and lakes, free use extends 50 feet landward from the Low Water Mark, so long as the distance does not extend past the High Water Mark.

The unique space between the High Water Mark and Low Water Mark also serves as a “right-of-way” when a publically managed water body is used for public purposes. It is prudent for those using the water to have an understanding of the law to avoid trespassing on private land.

The ownership of land grants the owner a bundle of rights, which include the right to defend privately owned property from trespassers. But even private land may be encumbered for the use of “public rights.” For instance, South Dakotans have a right to travel on public highways, including section lines that divide plats of land. Section lines are an example of a public right-of-way which the public is free to use without the permission of a private landowner.

Similarly, navigable and other non-navigable waters are considered public highways under South Dakota law. Rivers that are described as navigable under federal law are considered the same under South Dakota law. Federal law defines navigable waters as waters of the United States that were historically used to facilitate interstate commerce. 

Yet the state holds all waters, outside of Indian Country, in trust for the benefit of the public but not as an owner or proprietor.  The people of the State own the waters but not in the exclusive or absolute sense. 

This water right-of-way is not limitless. In South Dakota, riparian (adjacent) landowners own the land down to the Low Water Mark. Recreational users of water for public purposes however can use land located between the High and Low Water Mark via this right-of-way. It is unlawful for a riparian owner to interfere with the water right-of-way between the High and Low Water Mark, even if the landowner is under the false-but-reasonable belief that the public is trespassing.

This prohibition includes the use of livestock fences that keep non-owners off the waterway. Fences across navigable streams must have a 6 foot high by 6 foot wide gate or they are unlawful. Federal navigable waters like the Missouri River are not allowed to be fenced off, regardless of the presence of a gate.

How do recreational users access public water when a landowner owns the submerged land up to the low water mark?  Public ownership of the water body and the accompanying right-of-way does not create an automatic easement to access the public water. The water right-of-way only applies to the space between the High and Low Mark.

However, a limited right to portage exists in South Dakota. Portage refers to the carrying of boats and supplies overland between two waterways or around an obstacle to navigation. The term can also refer to the route by which a user of the waterway accomplishes this task.

 We will here not talk about how I might have accessed water during my youth.  The “statute of limitations” immunizes any conceivable transgression on that score.  A fellow can never be clever enough to buy back his past.  When public water has no access point, the state of the law can make access functionally impossible because there is no law that gives universal access “down to the water” if this entails trespass over private land.

The law is not like a snowplow on a truck.  The snowplow on the highway department truck is supposed to be proactive and in front of a problem trying to make things right. The law is an after-the-fact remedy which sometimes fixes the issue at hand.

Water law is like the Missouri River before the dams were put in.  It meanders all over the place over time.

David Ganje of Ganje Law Office practices in the area of natural resources, environmental and commercial law. The website is  Lexenergy.net


South Dakota – the land of socialized oil and gas production

Posted by David Ganje - January 29th, 2020

The truest evidence a state will leave for history is the rule of law under which its people lived at the time. Today some governments have not credibly accepted the need for environmental stewardship as a part of governance. Such a government opposes sober consideration of environmental stewardship and instead promotes economic progress as if the two governing issues must be universally incompatible. The absence of a balanced environmental stewardship by the state is the evidence I submit in this opinion piece. The actual policies and positions of the state on natural resource management is the material evidence upon which the future will judge South Dakota. I will here discuss current experiences as well as ‘new’ proposed bills before the 2020 legislature. These things will look weak and ill-considered by those reviewing the state’s history in 50 or 100 years.

In 2015, 2016, 2017 and 2018 I wrote several different analysis, in editorials and opinion pieces, advocating for financial assurance from permit applicants in order to satisfy the need for clean-up and plugging of closed projects. The point of my diverse written recommendations applied to mining operations, wind farms, oil and gas exploratory and operating permits as well as other natural resource operations requiring government authorization. My arguments were presented in numerous opinion pieces over those years. The pieces were published in various papers and websites throughout South Dakota, and importantly were not found in so-called advocacy or biased publications. The purpose of the pieces was to warn as well as advise government agencies and the legislature of the significance of proper planning and vigilant oversite for licensed and permitted projects. Some call this planning and oversight stewardship. I wrote about abandoned projects, abandoned wells, orphaned wells, projects in bankruptcy and projects underfunded and at risk. In a 2017 piece I discussed examples of businesses shutting down and not cleaning up after themselves. South Dakota like most states requires financial assurance terms for oil well permits, for mining operations, for sand and gravel permits, for wind farms. In my pieces I also reviewed specific regional examples of permits which imposed inadequate financial requirements for the decommissioning or closing of permitted projects. To restate my principle argument – decommissioning of a government-permitted project is the most significant long-term aspect to a government’s permitting authority. Little, really nothing, has changed since the publication of the articles. Now, I am not personally offended by those who ignore my advice; this is not unusual in my line of work. But no man is pleased to have his good advice so handsomely neglected as has been the subject and recommendation of my articles. How has the advice been neglected? Let us look at current practices of the state as well as proposed legislation before the South Dakota legislature.

The first example. Spyglass, an out-of-state energy company, abandoned 40 natural-gas wells in Harding County over the last several years. The state belatedly sued the company because of its failure to clean up the abandoned wells. The company denied liability. These abandoned gas wells, some of them leaking, have been around for a long time. I personally viewed one of them in 2014. Why has not the operator cleaned up the mess? The state DENR says that, “The problem all along has been that the company didn’t have the money to do so.” The state apparently did not properly oversee the financial assurance submitted by the company and, according to the Rapid City Journal, the state of South Dakota will be left holding the bag on the costs of closing up the wells. The paper reported, “Someone associated with [Spyglass] later cashed out $20,000 from the bonds without state government’s knowledge, leaving the state with only $10,000 to apply toward the estimated cost of nearly $900,000 to plug the 40 orphaned wells.” The original amount of bond money placed on the wells was inadequate in the first place – and if the monies were mismanaged as suggested – this compounds the state’s problem. A settlement consent agreement was entered into between the state and Spyglass but the agreement did not seem to remedy the situation. In the current session of the legislature a bill is pending to specially fund the DENR with earmarked state monies so that it might, itself, clean up orphaned wells. I have in the past been successful in my dealings and communications with the South Dakota DENR. The DENR has been accessible and willing to discuss public matters as well as my client’s issues in good faith. Yet on the proposed new legislation I recently contacted DENR twice by email indicating I would like to discuss the legislation. They did not favor me with a conversation. Instead the DENR emailed me that ‘the legislation speaks for itself.’ This is not open government.

Here are the takeaways for my first example: 1. inadequate financial assurance amounts were required at the outset, 2. there was an apparent failure to vigilantly oversee the operator’s deposited monies, and 3. we have a financial bailout by the state to plug wells at taxpayer’s expense because of a private company’s botched enterprise.

The second example. I have devised a new law of physics. It applies to government activity only and is otherwise an anomaly within the laws of physics: Every action taken by government is always a reaction- never an initiated action. In the current session the legislature proposes to increase the bond amount to $50,000 per well. This is a discretionary amount, not a mandatory amount. The proposed amount is a figure that the Board of Minerals may impose. Or the Board may impose a higher amount by its own authority. This would be an increase over current law. The proposal is nevertheless discretionary. The new legislation also allows the board to require a supplemental plugging and performance bond in the amount of $20,000 or such a mount as will guarantee the cost of reclamation. Again this is a discretionary bond. The Board “may require, or may delegate.” The solution to orphaned wells is not difficult to understand. When companies get a permit to drill they should pay a mandatory minimum bond that covers the cost of plugging and reclaiming the well. If the company plugs and reclaims the well itself they get their bond money back. If the company does not plug and reclaim the well for whatever reason, as we have seen there are several reasons, the state will have adequate money on hand to do the work. Between 1997 and 2014 it cost the State of Wyoming $11 million in total to plug orphaned wells, and only $3 million was covered by bonds. The number of abandoned wells in North Dakota grew by 10% in 2018 and 2019 over prior years. How did the South Dakota legislature come up with its new bond amounts? Has the state and its experts looked at the state’s experience with the Wasta SD well and the 40 orphaned Spyglass wells? I have seen no public state analysis on these matters. While of course no two projects and no two wells are the same, does good stewardship suggest that the lesser protection for the state is the better? North Dakota State Mineral Resources Director Lynn Helms very recently estimated that an abandoned well costs $150,000 to plug and reclaim.

Here are the takeaways from my second example: 1. an increase in bond amount is good. But the proposed legislation is not a mandatory increased amount. It is discretionary. That’s a cop out. If you want to address the problem you address the problem, 2. the state has still not addressed the proper financial amount for financial assurances by a developer. The Wasta abandoned well case is a South Dakota financial tragedy. I respectfully refer the reader to media articles on the abandoned Wasta well. The official stated remedial costs to the state could be $2 million if the Wasta project were ever to be plugged. That is way more than the bond filed with DENR. Further, the Spyglass problem of 40 orphaned Wells is a recent development. The state proposes to address Spyglass by budgeting about three-quarters of a million dollars’ worth of state funds. State funds are to pay for something a private business should be responsible for from the get-go. Thoughtful rules of the road at the initial stages of any project will help address future problems of possible project abandonment, closure and decommissioning. This would be good stewardship.

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law.


Political Higher-Ups ignore infrastructure

Posted by David Ganje - October 25th, 2019

Infrastructure includes roads, bridges, dams, and water and sewer systems.  Infrastructure ain’t sexy.  Managing infrastructure does not give a politician much television coverage or publicity. It is not a favorite subject of political leaders.  I looked at the most recent South Dakota governor’s inaugural address and at State of the State addresses going back several years. None mentioned infrastructure. Mistakenly, political leaders do not think they can create their “Legacy” by fixing or improving infrastructure. That is a mistake for all concerned.

While South Dakota ranks relatively high by the conservative and libertarian Reason Foundation for its cost effectiveness in highway management.  This ranking does not cure the long-term problem the state faces with its infrastructure.  The same Research Foundation indicates that over 23% of the state’s bridges are in deficient condition.  And the South Dakota Legislative Research Council (LRC) in a 2010 report stated that with no changes in revenues by the year 2020 19% of state highways would be in poor condition.  The independent American Society of Civil Engineers submitted a 2017 report which stated that over 18% of the state’s bridges were structurally deficient, and that 13% of the state roads were in poor condition.  South Dakota officials do not have a repair estimate for the number of high-hazard dams in need of repair.  They should. Dams are an infrastructure safety issue because spillway capacities may change, because downstream development by man is always ongoing, and because the structure of a dam naturally deteriorates with time.

Infrastructure maintenance and improvements are not subjects political leaders take on as a personal favorite.  In recent years society and perhaps some politicians have recognized the fact that infrastructure is vital to economic growth.  But that alone does not give the issue political and legislative traction.   Infrastructure is not an interesting topic for the media.  Importantly, it is not a headline-grabbing topic for politicians.  The issue is too mundane; the public and politicians see headline issues including hemp and transgender bathrooms as more important.

In Ohio Republican Governor Mike Devine’s state of the state address for 2019 he called infrastructure the unfinished business of the country. Governor Devine stated that it was his job to put before the people a description of unfinished business.  In his annual address he advised, “Let me start with our roads and bridges. We have neglected them too long and we know face a crisis today that must be addressed immediately.”

In a 2010 report the South Dakota LRC stated the obvious and reported that good highways are needed to get farm and ranch products to market and to promote economic development in rural and urban areas of the state.  The report also told the legislature that the, “Lack of adequate highway funding is causing deteriorating highway conditions and increasing highway maintenance costs.”  If one doubts that truism, I suggest you talk to any township supervisor or county commissioner in the state; they will enlighten the reader very quickly on the infrastructure problem.  According to a road industry organization’s (TRIP) 2015 white paper, which gathered information from state township reports, twenty-eight percent of township-maintained roads in South Dakota are either closed or in poor condition.

What should be repaired? What rebuilt?  Where is the state public policy statement with a priority-of-projects list for all to review?  This is too urgent a problem to be buried in some legislative committee report viewed only be a few, with little public input and without any long term attention given to the issue by those holding the bully pulpit.

David Ganje of Ganje Law Offices practices in the area of natural resources, environmental and commercial law


Wind Energy Brief

Posted by David Ganje - July 12th, 2019

BEFORE THE PUBLIC UTILITIES COMMISSION

OF THE STATE OF SOUTH DAKOTA

­­­­­­­_____________________________________________________________________________

                                                                                                EL 19-003

IN THE MATTER OF THE

APPLICATION BY CROWN

RIDGE WIND, LLC FOR A                                                  INTERVENORS’

PERMIT OF A WIND ENERGY                                          POST-HEARING BRIEF

FACILITY IN GRANT AND                                               

CODINGTON COUNTIES

­­­­­­­                                STATEMENT OF THE CASE AND INTRODUCTION

  1.  On January 30, 2019, the South Dakota Public Utilities Commission (Commission) received an Application for a Facility Permit for a wind energy facility (Application) from Crowned Ridge Wind, LLC (Crowned Ridge or Applicant) to construct a wind energy conversion facility to be located in Grant County and Codington County, South Dakota (Project or proposed project). The Project would be situated on approximately 53,186-acres in the townships of Waverly, Rauville, Leola, Germantown, Troy, Stockholm, Twin Brooks, and Mazeppa, South Dakota. The total installed capacity of the Project is claimed not exceed 300 megawatts (MW) of nameplate capacity. The proposed Project includes up to 130 wind turbine generators, access roads to turbines and associated facilities, underground 34.5-kilovolt (kV) electrical collector lines, underground fiber optic cable, a 34.5-kV to 345-kV collection substation, one permanent meteorological tower, and an operations and maintenance facility. On January 31, 2019, the Commission electronically transmitted notice of the filing and the intervention deadline of April 1, 2019, to interested persons and entities on the Commission’s PUC Weekly Filings electronic listserv. On February 6, 2019, the Commission issued a Notice of Application; Order for and Notice of Public Input Hearing; Notice of Opportunity to Apply for Party Status. On February 22, 2019, the Commission issued an Order Assessing Filing Fee; Order Authorizing Executive Director to Enter into a Consulting Contracts; Order Granting Party Status. On March 20, 2019, a public input hearing was held as scheduled. On March 21, 2019, the Commission issued an Order Granting Party Status. On March 25, 2019, Patrick Lynch filed an Application for Party Status. On March 26, 2019, Commission staff filed a Motion for Procedural Schedule. On March 27, 2019, Crowned Ridge filed its Responses to the Motion for Procedural Schedule. On March 28, 2019, lntervenors filed a Response to Crowned Ridge’s Response to the Motion for Procedural Schedule. On April 5, 2019, the Commission issued an Order Granting Party Status; Order Establishing Procedural Schedule. On April 25, 2019, lntervenors filed a Motion to Deny and Dismiss. On April 30, 2019, the Commission issued an Order For and Notice of Motion Hearing on Less Than 10 Days’ Notice. On April 30, 2019, Commission staff and Crowned Ridge each filed a Response to Motion to Deny and Dismiss. On May 6, 2019, lntervenors filed a Reply Brief in Support of Motion to Deny and Dismiss. On May 10, 2019, the Commission issued an Order Denying Motion to Deny and Dismiss; Order to Amend Application. On May 10, 2019, the Commission also issued an Order for and Notice of Evidentiary Hearing. On May 17, 2019, Intervenors filed a Second Motion to Deny and Dismiss. On May 23, 2019, Commission staff filed a Request for Exception to Procedural Schedule and Crowned Ridge filed its Response to lntervenors Second Motion to Deny and Dismiss and, as a part of its response, Crowned Ridge requested a Motion to Strike. On May 28, 2019, Intervenors filed a Reply Brief and Motion to Take Judicial Notice. On June 12, 2019, the Commission issued an Order Granting Request for Exception to Procedural Schedule; Order Denying Motion to Take Judicial Notice; Order Denying Motion to Strike.  The Commission has not ruled on the Second Motion to Deny and Dismiss.  The Commission has jurisdiction over this matter pursuant to SDCL Chapters 1-26 and 49- 41 B, and ARSD Chapter 20: 10:22.  The evidentiary hearing was held, beginning on June 11, 2019, and ending on June 12, 2019, with one Staff witness heard prior to the scheduled evidentiary hearing.  At the conclusion of the evidentiary hearing, a briefing schedule and decision date was set by the Commission.  Intervenors, through undersigned counsel, submit this Post-Hearing Brief.  Applicant is seeking a permit from the Commission to build a wind farm in Grant and Codington Counties South Dakota. As the permit applicant, Applicant shoulders the burden of proof to establish its proposed project satisfies the provisions of SDCL 49-41B-22.  Intervenors do not have the burden of proof to show the proposed project does not satisfy SDCL 49-41B-22.  If there remains a question as to whether the proposed project complies with SDCL 49-4 lB-22, the permit application must be denied. As shown below, Applicant has not satisfied its burden. Therefore, Intervenors respectfully request the Commission deny Applicant’s permit Application.  Citations to facts contained in the record are included in this Post-Hearing Brief and in the Intervenors’ Proposed Findings of Fact and Conclusions of Law which are incorporated into this Brief.

                                                               ARGUMENT

2.     The Legislature intended for an extensive and complete review of a wind farm permit application by the Commission.  The legislature would not have done so if it did not expect its statutory requirements to be a high bar.  In this proceeding, as of the conclusion of the evidentiary hearing, the Application is still, at best, materially incomplete. It is also accurate to say the Application at completion of the evidentiary hearing is unavailable as an understandable proposed project.  See for example the findings set forth in Intervenors’ Proposed Findings of Fact and Conclusions of Law on the issue of due process.

3.      Intervenors’ Proposed Findings of Fact and Conclusions of Law are filed with this Brief as Exhibit A and are incorporated into this Post-Hearing Brief by reference.  The insufficiency of Applicant’s evidence and facts, the unaddressed relevant legal issues in this proceeding, as well as the failure of the Applicant to satisfy legal requirements following applicable siting law and rules under the mandate of SDCL 49-41B-22(1) are presented in detail as findings and conclusions in Exhibit A.

4.      Applicant’s statutory burden of proof under SDCL 49-41B-22 has not been met in this proceeding.  Additionally, ARSD 20:10:01:15.01 is one of the Commission’s Rules of Practice, and it also applies to this matter.  The rule requires: In any contested case proceeding, the complainant, counterclaimant, applicant, or petitioner has the burden of going forward with presentation of evidence unless otherwise ordered by the commission.  The complainant, counterclaimant, applicant, or petitioner has the burden of proof as to factual allegations which form the basis of the complaint, counterclaim, application, or petition. ARSD 20:10:01:15.01  Applicant’s evidence supporting its regulatory compliance obligations are matters within the possession of the Applicant.  The burden to produce evidence is on the Applicant.  Davis v. State, 2011 S.D. 51, 804 N.W.2d 618, 628 (S.D. 2011); Eite v. Rapid City Area School Dist. 51-4, 739 N.W.2d 264 (S.D. 2007); Meacham v. Knolls Atomic Power Lab., 554 U.S. 84 (2008); Dubner v City and County of San Francisco, 266 F3d 959, 965 (9th Cir 2001)  This burden remains upon Applicant regarding all wind energy siting statutes and concerning all wind energy siting rules throughout every stage of the proceeding.  Gordon v. St. Mary’s Healthcare Ctr., 617 N.W.2d 151   The facts and issues regarding the denial of due process of the law raised by Intervenors also reflect Applicant’s failure to meet its statutory and administrative burden of proof in this proceeding.  Wind farm siting laws and the related administrative rules have disturbed Applicant’s efforts to obtain a permit.  The proposed Application, at the completion of the evidentiary hearing, does not meet Applicant’s burden of proof under which this Commission might have approved a permit — even with proposed conditions.  In this matter the Applicant and Staff submitted proposed permit conditions.  As the record reflects, Intervenors were not invited to, and did not participate in, the writing or negotiation surrounding the creation of the proposed conditions.  Under these circumstances the Intervenors do not accept the terms of the proposed conditions.  Applicant must prove to the Commission compliance with all the elements of South Dakota’s siting statutes and each of the applicable siting rules by a greater convincing force of the evidence.  Applicant’s burden of proof is that the “proposed facility will comply with all applicable laws and rules.”  That’s not a maybe. That’s not a might.  The Applicant is not allowed to get kind of close to complying with applicable laws and rules.  An applicant must comply with all applicable laws and rules.  Applicant has not done this.

5.      In this proceeding are the Applicant’s requested 45 db(A) and 50 db(A) sound levels for the proposed project standards which the Commission should approve?  No.  Are Applicant’s requested 45 db(A) and 50 db(A) sound levels supported by the testimony and writings of Staff witness Hessler and supported by the testimony and writings of Applicant’s principle health witness Ollson?  No.  Applicant must prove to the Commission compliance with all the elements of South Dakota’s siting statutes and each of the applicable siting rules by a greater convincing force of the evidence.  Applicant has failed to meet that burden on the issue of health and welfare.  SDCL 49-41B-22(3)   Staff witness Hessler wrote in a 2011 professional article that 40 db(A) is recommended.  Staff witness Hessler testified in a prior 2018 South Dakota PUC hearing that 40 db(A) should be the design goal.  Staff Witness Hessler advised the Minnesota Public Service Commission in a 2011 report that any new project should maintain a mean sound level of 40 db(A) or less. Staff witness Hessler advised the Wisconsin Public Service Commission in a 2012 report that a 39.5 db(A) or less should be used for all non-participating residences. Staff witness Hessler testified in the current proceeding that for many years he recommended as the ideal performance level of 40 db(A).  Staff witness Hessler testified also in the present preceding that he recommended 40 db(A) as an ideal design goal.   Staff witness Hessler acknowledged as his professional opinion that a 40 db(A) for every non participant was recommended.  Staff witness Hessler reported in his pre-filed testimony in this proceeding that anytime sound levels are higher than about 40 db(A) he anticipates complaints with the number of complaints and the severity of complaints increasing exponentially as sound levels approach 50 db(A). Staff witness Hessler told the Commission that 40 db(A) sound level maximums would be better for the public than 42 db(A).  Staff witness Hessler testified that 40 db(A)  would be acceptable to the welfare of the public as a permit condition.  Staff witness Hessler testified in this proceeding that he agreed with a professional article found at Exhibit I – 8 reporting that the level of 40 db(A) is a design goal intended to protect the public.  Staff witness Hessler also agreed with a 2017 professional article at Exhibit I-4 indicating that wind turbine farms designed to a level of 40 db(A) or lower for  non-participating receptors have an acceptable community response.  Staff witness Hessler acknowledged that a report he gave to the Wisconsin Public Service Commission recommended a 40 db(A) level for non-participating residences.  Applicant’s principle health Witness Christopher Ollson agreed that a 2011 World Health Organization noise guideline of 40 db(A) is a health-based limit value.  Applicant witness Ollson acknowledged he wrote in a 2014 professional article recommending that preference should be given to sound emissions of approximately 40 db(A) for non-participating receptors and that this level was the same as the World Health Organization night noise guideline. Applicant’s witness Ollson wrote in a 2014 presentation that noise from wind turbines can be annoying to some and associated with sleep disturbance especially when found at levels greater than 40 db(A).  Applicant’s witness Ollson wrote in a 2014 presentation that preference should be given to sound emissions of 40 db(A) or less for non-participating individuals.   Ollson further testified that the limit of 40 db(A) or less for non-participating was the same guideline as the World Health Organization guideline.  Applicant’s witness Ollson admitted that he had previously testified in a 2014 Canadian wind farm proceeding that 40 db(A) was reasonable and sufficient to protect against human effects.  Ollson also testified he had recommended in a prior application proceeding that best practices include a preference for sound emissions of 40 db(A) or less for non-participating receptors.  In his testimony in this proceeding Applicant witness Ollson acknowledged that he expressed a preference to be given to sound dimensions of 40 db(A) or less for non-participating receptors in a 2014 professional article he had written.  When asked in this proceeding, Ollson stated that he had not changed any of his writings or his opinion on the opinion recommending sound emissions of 40 db(A) or less.  Intervenor’s Proposed Findings of Fact and Conclusions of Law cite to and provide reference to the record on the above statements for each of the two witnesses.  The preceding is substantial evidence, by Applicant and Staff witnesses, against approving Applicant’s requested sound level standards in this proceeding.  Considering this evidence, Applicant has not presented its case for sound standards with a greater convincing force of the evidence.  The Commission cannot and should not approve the Applicant’s requested sound standards for the proposed project.

  •     When one considers the essential information needed to obtain permit approval under wind energy siting law, one appreciates the law’s purpose in requiring that an applicant place before all interested parties a competent and full disclosure as well as a public explanation of how the proposed project complies with applicable siting law and rules and how the project would affect the health, safety and welfare of inhabitants.  Applicant has not met its burden of proof under the administrative rules and under wind energy siting statutes.  By way of illustration, Applicant states that it may agree to move 7 turbines because of the opinion of Staff witness Hessler who recommended to the Commission that 16 turbine locations should be moved.  Staff witness Hessler testified, “The 16 units that I believe are unduly and unnecessarily affecting non-participating residences are circled in black. . .”  (citation for  the record and quotations in this Post-Hearing Brief are found in Intervenors’ Proposed Findings of Fact and Conclusions of law)  The recommendation Staff witness Hessler expressed to the Commission regarding the welfare of inhabitants is not reflected in the proposed minimal acts of Applicant.  Applicant suggested it may move seven of the recommended 16 turbines. “Q. You’re not going to move 16 of them? A. We have agreed to moving seven turbine locations. Q. You haven’t agreed to move 16? A. That’s correct. We agreed to move 7.”  Applicant’s position is far from a commitment to do what is recommended.  And further, Applicant does not represent to the Commission that the 7 turbine sites which it may move are to be withdrawn sites or are to be terminated as project turbine location sites.  Applicant will still maintain those 7 sites as a ‘back up.’  None of this ‘moving of 7 turbines’ complies with the Staff witness’ recommendations.  Applicant is not taking adequate action to protect the health, safety and welfare of project inhabitants.  The Applicant’s several witnesses in this proceeding do not show any dispute or criticism regarding the recommendations of Mr. Hessler that 16 turbines should be relocated.  Applicant’s proposed action does not adequately protect non-participators.  This effort to sway to the Commission is too little.  Applicant is over-careful regarding its own interests at the expense of the project community, the inhabitants and non-participators.  A proposed move of a minimal number of the turbine relocations contrary to the recommendation by Staff witness Hessler does not meet Applicant’s burden of proof regarding the health and welfare of the inhabitants pursuant to SDCL 49-41B-22(3).

7.      The materially incomplete Application is shown by the lack of a full avian use survey report.  Applicant’s purported avian study for the proposed project is found at Appendix E of the Application. The study ended in November of 2017.  See page 58 of Appendix E.  The avian use survey report fails to include a significant portion of the proposed project.  The northeast area of the proposed project was not included in the report.  This unsurveyed project area consists of 15,500 acres of land and 25 proposed turbine sites or alternate turbine sites.  Applicant’s avian survey map, Exhibit A1-E p2, reveals the failure to survey this large northeastern area of the project. The map included with the survey is Applicant’s document filed in support of its assertion that Applicant completed a survey of the proposed project area. The northeastern area of the project was acquired by the Applicant at the end of November 2017 but well over one year before the Applicant formally filed the pending Application.  Application Exhibit A1 p 88 “Cattle Ridge Wind Farm, LLC was acquired by the CRW on November 22, 2017 for inclusion with the Project.”   Applicant did not do an avian use survey report on the northeast area of the proposed project.  The fact that the Application contains no avian use study of the completed project area is confirmed by Applicant witness Sappington’s testimony.  “Mr. Ganje Q. I would refer you to Exhibit A1-E…”  “Mr. Ganje Q. So then no avian study report was done for that portion of the project, was it? Sarah Sappington A. No Avian Use Survey.”  The dashed lines on A1-E show the limits of the survey area.   “Q. I would ask you please to refer to A1-B page 80.  And is the — referring now to page 80 of the exhibit, please. Is page 80 the colored area, the area of interest that was studied by your company?” Sarah Sappington “A. This was studied as of July 2017.  Q. Yes. And does that study area include the northeastern portion of the proposed project that I referred to you in a previous question and showed you on a previous map? A. Are you referring to that northeast portion? Q. That is correct. A. No. This map does not have it.”  The purple area shown on A1-B does not include the northeast area of the proposed project.  And, Figure 1 of the “study area” on page 2 of the Avian Use Survey Report is clear evidence the Application is materially incomplete.  See Appendix E to the Application.  Applicant cannot be granted a permit by the Commission.

8.      In this proceeding the problem of denial of the Intervenors’ due process rights is set forth with citations in the findings and conclusions found at Exhibit A to this Brief.  The lack of due process issue is stark. The issue warrants a review in this Brief.  The right to be informed of, to access, to know and to challenge an Application is not available to Intervenors where material information has not been timely placed on the record – even at the end of the final evidentiary hearing.  Applicant has not implemented a fair and adequate procedure under which Intervenors could understand the facts necessary for the Commission to reach a decision.  Applicant has not followed a fair and adequate procedure necessary for the Commission to reach a decision on the impacts of the proposed project.  Since the day of filing the Application, Interveners have been deprived of adequate information from which to understand, research and challenge the Application under its ever-evolving and materially-changed proposed project. Up to the last day of the hearing substantial and material proposed project changes were submitted to the Commission.  Adequate notice and due process of law do not permit an applicant in such a complicated public siting process to change material facts and technical representations on the final day and at the final hour of the submission of evidence.  Further, the Application is still incomplete in multiple, material respects, and should be denied by the Commission.

9.      Instances of denial of due process. 

9a.)   At the close of the evidentiary hearing, Applicant filed two documents Exhibits: A67 and A68, as so-called updated shadow flicker tables.  The shadow flicker tables list 70 nonparticipating and 61 participating receptors, which are homes, with 4 participants listed as pending. The table is missing 56 of 59 of nonparticipators receptors in Stockholm and Waverly.  Exhibit A1 page 75   And at this late date Intervenors still do not know the participators.  Applicant fails to provide information on who is participating, who is not, and the effects on these receptors.  Of the 131 receptors listed on the table, more than half are non-participators and this table does not include the 56 non-participating receptors in the two towns inside the proposed project.  This brings the total of the non-participators inside the project boundary at 129 vs 61 participating.  In the last 2 days of the evidentiary hearing Applicant submitted exhibits A57, A67 and A68. The exhibits are presented as updated sound and flicker modeling for the proposed project. Except for modeling four receptors in Waverly and one in or near Stockholm, Applicant failed to consider, model or include receptors and residences in the towns of Stockholm and Waverly.  While the proposed project offers setbacks away from the towns of Waverly and Stockholm, setbacks do not address the issue of the effects of sound and flicker on the residences of Waverly and Stockholm.  The Applicant’s modeling buffer zone, as well as the proposed project site, includes the towns of Waverly and Stockholm, but Applicant did not consider, model or include all the receptors and residences in the two towns.  The large number of town residences within the proposed project is identified in the Application.   See Application page 75  Applicant did not do complete sound and flicker modeling for Waverly and Stockholm.  Applicant’s evidence is void of material and necessary information concerning the consequences of sound and flicker on the residents of Stockholm and Waverly.  The lack of relevant and material evidence makes it impossible for Intervenors to evaluate a complete Application which covers 53,186 acres of South Dakota.

 9b.)  Applicant’s astonishing last-minute presentation of Application evidence included Exhibit A55 –Proposed Turbine Drops and Moves.  This exhibit was presented to the Intervenors and the Commission on the first day of the evidentiary hearing June 11th, 2019.  Revealing for the first time in a 6 month application process several proposed turbine drops and several proposed turbine moves.  This last-minute disclosure did not provide adequate and timely notice to Intervenors on a substantive and material aspect of the Application.  Applicant’s Exhibit A55 represents that turbines will be ‘dropped’ from the project.  However the testimony of Applicant witness Wilhelm at the evidentiary hearing contradicts this proposition.  Mr. Wilhelm testified during the evidentiary hearing that, 1. The turbines will not be dropped but will actually be reserved for possible later use, and that, 2. The relocation of the turbines that Applicant offered to move is not to be disclosed.  Applicant provided no coordinates for the turbines to be relocated.  Further, the so-called dropped turbines proposed do not address witness Hessler’s recommended 16 turbine relocations.  The representations of Applicant regarding the so-called dropped turbines, and Applicant’s suggested turbines to be moved, found in Exhibit A55 are misleading at best.  Turbines identified as CRII – 127 and CRII – 129 are included among the so-called dropped turbines.  These turbines are not turbines sites for the proposed project. These turbines sites are part of a different wind farm project altogether.  And, three turbine sites to be ‘moved’ (CR II Alt 3, CRII 126, CRII 133) are not a part of the proposed project. The three turbines are a part of a different wind farm project altogether.  Further, and just as material, Applicant’s proposal found in Exhibit A55 does not move ten of the turbines sites recommended to the Commission by Staff witness Mr. Hessler for relocation.  See Exhibit S1a   Applicant provides no designated placement sites for the ‘moves’ it suggests it would make.  The map produced by Applicant at A55 and the accompanying proposal is an attempt by Applicant to offer something of no relevant value to the legitimacy of the proposed Application in exchange for approval of the proposed project by the Commission, the Intervenors and the affected property owners.  Applicant’s proposal should be labeled a dance of dissemblance.  The lack of relevant and material information makes it impossible for Intervenors to timely evaluate a completed Application which covers 53,186 acres of South Dakota. 

9c.)   Although it is a requirement of the permit process, the Applicant did not timely file documents needed to evaluate the Application and its impacts to the environment and citizens.  Applicant represented from and after January 2019 that no turbines would be placed on grasslands or wetlands.  Application page 79   Applicant’s representation is not true.  On June 4, 2019 Intervenors learned through data request responses in Exhibit A45-3 the matter of missing USFWS easements.  An Applicant may only place turbines on the upland portion of a federal wetlands easement parcel. The maps submitted by Applicant do not adequately reflect the location of wind turbines on parcels designated as federal wetlands parcels.    In this proceeding a reasonable person cannot determine the location of turbines proposed to be located in the 7 wetland parcels.  The lack of relevant and material information makes it impossible for Intervenors to evaluate a completed Application for a proposed project that covers 53,186 acres of South Dakota, without all the required information timely provided. 

9d.)  Applicant misled the parties concerning a claimed, completed Avian Study. The Applicant provided an incomplete Avian Study in which 15,500 acres were not included, although the written Application represents that all such matters are good to go.  And Applicant did not provide biological studies and information concerning native grasslands and mammals. The lack of relevant and material information makes it impossible for Intervenors to evaluate a completed Application for a proposed project that covers 53,186 acres of South Dakota, without all the required information timely provided. 

9e.)  Intervenors’ Second Motion to Deny provides an illustration of the Applicant’s failure to timely disclose and failure to provide proper notice, adequate information and failure to provide Intervenors due process.  In paragraph 14 of the Patrick Lynch affidavit in support of the motion, Applicant’s misrepresentation to the record, to the Commission and to Intervenors is recited. Patrick Lynch Affidavit filed 5/17/2019   The Lynch Affidavit reveals Applicant’s failure to disclose a material fact.  Until Applicant was obliged to respond to the Second Motion, Applicant withheld the fact that it did not have legal access to 25 proposed turbine locations.  In its motion response Applicant did not deny Applicant’s lack of an easement, even though Applicant had represented in its filings from January 2019 until the Second Motion was filed (the end of May 2019) that it had legal access to the 25 proposed turbines. The false representation was made for 4 months of the 6 month application process allowed by law.  Applicant knew the easement did not exist.  And in response to the Second Motion Applicant further admitted there were six expired land agreements; while in a separate disclosure in June 2019 Applicant admitted that there were seven material land agreements necessary for the project. Without knowledge of the location of turbines, the location of easements and collection lines it is and was impossible for Intervenors to understand, research and timely challenge a completed Application

10.     Intervenors incorporate by reference into this Brief:  Intervenors’ filed Brief in support of their First Motion to Deny and Dismiss, Intervenors’ filed Reply Brief in support of their First Motion to Deny and Dismiss, Intervenors’ filed Brief in support of their Second Motion to Deny and Dismiss, and Intervenors’ filed Reply Brief in support of their Second Motion to Deny and Dismiss.  Intervenors also incorporate by reference into this Brief Intervenors’ hearing Brief on Intervenors’ Motion to Strike testimony of witness Haley.

                                                CONCLUSION

11.      The Application does not meet the criteria required by South Dakota Codified Laws.  The construction of the project does not meet the requirements of South Dakota Codified Law 49-41B.   Applicant has not demonstrated that the proposed facility will comply with all applicable laws and rules.  Applicant has not demonstrated that the facility will not pose a threat of serious injury to the environment nor to the social and economic condition of inhabitants or expected inhabitants in the siting area.  Applicant has not demonstrated that the facility will not substantially impair the health, safety or welfare of the inhabitants. 

12.      Even if reviewed in the best light (which is not the legal standard for assuring a party due process of the law, and does not comply with Applicant’s required burden of proof) the pending Application is murky, muddled, incomplete and with material information unknown.  The Commission and the Intervenors should not have this many unanswered questions, and the Applicant unfulfilled legal obligations, all at this stage of the proceeding. Because there are so many and because of the significance of the unanswered questions as well as an incomplete Application, the Commission should deny the permit application.  Further, based upon the arguments described in this Post-Hearing Brief and based upon the findings and law described in Intervenors’ Proposed Findings of Fact and Conclusions of Law the Application should be denied.  In addition, the application process in this proceeding has denied and infringed upon Intervenors’ due process rights including their opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333 (1976). The Applicant has failed to meet its burden of proof under SDCL 49-41B-22 and ARSD 20:10:01:15.01.  The Application should be denied.

Dated this _____ day of __________, 2019

/s/ David L Ganje

Ganje Law Offices

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Phone 605 385 0330