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Saturday, October 3, 2009

PUC Chills Citizen Activism with Burdensome Information Requests

Mr. Mercer notes that Dakota Rural Action has failed to meet another deadline in submitting pre-filed testimony on the Keystone XL pipeline docket. Mercer cites a letter from PUC staff attorney Kara Semmler that says DRA may request postponement of the upcoming November hearing, a change Semmler says may be impossible.

To understand what's taking so long, perhaps we should go back to June and the Interrogatories and Request for Production of Documents Ms. Semmler sent to Dakota Rural Action. On June 3, 2009, Semmler, on behalf of the PUC, gave DRA 26 days to submit the following information for HP09-001, the Keystone XL docket. As you read these "requests" (quoted verbatim), ask yourself what relevance each point may have to permitting the Keystone XL pipeline:
  1. Describe Dakota Rural Action's business structure.
  2. Describe Dakota Rural Action's business relationship with Plains Justice.
  3. How many members does Dakota Rural Action have?
  4. How many members own property crossed by the TransCanada Keystone XL pipeline (herein "pipeline")? List the names and addresses of those members.
  5. How many members are located within one half mile of the pipeline? List the names and addresses of those members.
  6. How many members will have a pumping station located on his or her property? List the names and addresses of those members.
  7. How many members are interveners in HP09-001? List the names of intervener members.
  8. Provide a copy of all correspondence from your members regarding this pipeline.
  9. Provide all records of telephonic or other verbal communication with members regarding this pipeline.
  10. What is Dakota Rural Action's mission statement or goal?
  11. Identify any membership meetings or other types of meetings scheduled by or through Dakota Rural Action at which this pipeline was discussed.
  12. Provide a copy of any correspondence you sent members or non-members regarding this pipeline. Provide a copy of all mass mailings as well as individually addressed letters. Specify whether the mailings were sent to members only.
  13. Provide a copy of all newsletters or other information published or created by Dakota Rural Action regarding this pipeline.
  14. Has Dakota Rural Action polled or otherwise communicated with its membership to determine what percentage support and what percentage oppose this pipeline? If so, provide the results.
  15. For the past two years, list all legal processes, administrative and otherwise in which Dakota Rural Action has participated.
  16. How does Dakota Rural Action determine what legal or other process to become involved [sic]?
  17. The applicable applicant burden of proof reads as follows... [see SDCL 49-41B-22]... Specify particular aspect(s) of the applicant's burden of proof for which you intend to provide testimony and evidence. Provide Dakota Rural Action's position regarding said aspect.
  18. State Dakota Rural Action's position regarding "terms, conditions or modifications of the construction, operation, or maintenance." See SDCL 49-41B-24 and 49-41B-36.
  19. List with specificity the witnesses Dakota Rural Action intends to call. Please include, name, address, phone number, credentials and area of expertise.
  20. Do you intend to take depositions? If so, of whom?
  21. As an ongoing request, provide Commission Staff with a copy of all data, documentary or interrogatory requests you send any party to this docket along with its complete answer to such request.

    —Kara Semmler, staff attorney, Interrogatories and Request for Production of Documents, South Dakota Public Utilities Commission, 2009.06.03
Now I've never been party to a PUC docket, so I can't speak with authority about the normal scope of interrogatories addressed to interveners. I haven't seen the interrogatories the PUC sent to TransCanada, the entity actually seeking to disrupt land and property rights in South Dakota, so I can't compare the burden placed on other parties to this docket.

In its formal response, Dakota Rural Action argues the PUC's interrogatories are a burdensome and occasionally unconstitutional fishing trip. In twenty-plus pages, DRA offers the following objections (I paraphrase):
  • Some requests improperly seek private, confidential information.
  • Some requests seek information irrelevant to the docket that could not produce evidence admissable in the PUC hearing.
  • The PUC fails to offer the "threshold showing of relevance" required by precedent to justify its seemingly extraneous requests that do not touch on "facts related to the Proposed Pipeline or its impacts."
  • Quoting from case law, "no overbroad or 'carte blanche' disclosure, unduly burdensome or lacking in specificity, should be allowed."
  • The requests in total are "unduly burdensome, expensive, oppressive, [and] excessively time-consuming."
  • The disclosure and publication of member names and addresses violates the First and Fourteenth Amendments.
  • Disclosure and publication of member information and internal communications have a chilling effect on freedom of association and free speech.
I find the chilling effect particularly disturbing. Suppose you're a member of a group that advocates certain policies in Pierre—Dakota Rural Action, South Dakota Retailers, whatever. Suppose your organization told you it would be recording every call you make to your organization's officials and archiving every e-mail you send for possible publication in government proceedings. I don't think it's a stretch to say a lot of members would avoid calling or writing... or even sending in membership dues.

Even from a practical perspective, the PUC's interrogatories threaten to chill citizen activism. Suppose you're working for a local non-profit advocacy group, or you're just a concerned citizen trying to speak up for your neighbors. In this case, you're busting your chops researching oil pipelines, right-of-way proceedings, environmental and economic data, and other relevant and complicated information. You're spending your spare time—or your spare change hiring a lawyer or two to help you—trying to put together a case that can reasonably compete with the attorneys and experts that a multi-billion-dollar corporation has at its disposal.

In the middle of that process, the state calls and asks you to turn your file cabinets inside out for them. Whether you submit to the request and turn over stacks of private information or work up a solid legal argument to protect your and your neighbors' constitutional rights, your workload just doubled. And every dollar and hour you spend on that task is a dollar and hour you can't spend building your case that permitting the pipeline does not serve the public interest.

Citizen activism is already hard enough. If the PUC can erect further barriers like the information requests it made of Dakota Rural Action, even more citizens and organizations will back away from public activism. That will leave public decision-making all the more in the hands of the well-moneyed and well-lawyered.

While R. Blake Curd and his Tea Party friends are dressing up in tri-corner hats and re-enacting their personal mash-up of the Cold War and the Revolutionary War, and while South Dakota conspiracy theorists like Lori Stacey are fighting the Illuminati, groups like Dakota Rural Action are fighting real battles, against real threats, to protect the rights of South Dakotans against encroachment from big corporations (and in this case, a foreign corporation).

And our own state appears to be sandbagging citizen groups with impractical and unconstitutional legal demands.


  1. This boondoggle is a fabulous example of what happens when we overfeed The Beast.

  2. Bob Mercer left something very important out of the blog post Cory linked to.

    Before PUC staffer Kara Semmler sent her letter, PUC Chairman Dusty Johnson had already requested to reconsider whether the PUC should order TransCanada to provide more discovery documents regarding the Emergency Response Plan.

    The last time the PUC considered discovery requests, the Commissioners voted that TransCanada didn't have to. (The PUC did order TransCanada to provide more documents on other issues.)

    It's great that the Commission is willing to reconsider the Emergency Response Plan.

    The Plan is extremely important to landowners and others living near the pipeline's proposed route because the Plan relates to pipeline accidents, such as oil spills, pumping station fires, and explosions.

    Because the Keystone XL pipeline would go through remote areas of South Dakota where residents and small volunteer fire departments would probably be first responders during a pipeline accident, people are understandably interested in the Plan. However, the general public is not allowed to participate in the creation of the Plan.

    It would be a great public service if the PUC watchdogged the Emergency Response Plan and judged carefully whether the Plan was adequate before the Commission decides whether to approve the pipeline.

    Kelly Fuller
    Plains Justice


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