ELLENSBURG – A Thurston County Superior Court judge on Friday granted Kittitas County and two other appellants more time to investigate their contention that the state reflected bias and prejudgement and violated appearance of fairness rules in approving the location of a wind farm in the county.
Judge Richard Hicks ruled from the bench to deny a request from the state Energy Facility Site Evaluation Council and Gov. Chris Gregoire to close the official record on how EFSEC decided to recommend to Gregoire that she approve the Kittitas Valley Wind Power Project, which she did Sept. 18. In so doing she overruled an earlier rejection of the project by county commissioners.
The 65-turbine wind farm, sought by Houston-based Horizon Wind Energy, is planned for 12 miles northwest of Ellensburg.
The Friday court action in Olympia is part of an appeal to the state Supreme Court that challenges the state’s wind farm approval, an appeal mounted by county government, Residents Opposed to Kittitas Turbines and Kittitas Valley resident Steve Lathrop.
Attorneys representing EFSEC and the governor on Friday called on the court to certify that the nearly 16,500-page record of decision was complete and immediately close it to any further documents or evidence that the Supreme Court might consider.
Kittitas County Deputy Prosecutor Neil Caulkins, after the Friday hearing, said Yakima attorney James Carmody in the hearing argued for the three appellants why the record shouldn’t be closed.
He said Hicks agreed and ordered EFSEC to come up with all documents requested by the county by Dec. 21. The county made public disclosure requests for the documents six months ago, Caulkins said, and the state has only partially complied.
Hicks also allowed the appellants until Jan. 15 to further investigate adding more evidence to the record through a legal discovery process, a process that also allows the state and governor to challenge what is allowed in the record. This process could include obtaining documents and taking verbal testimony.
Hicks set Feb. 22 as the hearing date when he would make a final decision on what records and evidence the Supreme Court will receive.
Caulkins said Carmody cited e-mail records previously obtained that the appellants say allegedly show that EFSEC Chairman Jim Luce was biased against the county’s position on the wind farm, prejudged the project before the county made its final case and violated appearance of fairness rules, in part, by communicating disdain for public input in the case.
Other e-mailed comments from Luce presented to the judge show Luce was more concerned about preserving the existence and authority of EFSEC than deciding in a fair manner on how to meet the power needs of the state, Caulkins said.
Caulkins, present at the Friday hearing, said Hicks on at least two occasions reacted to Luce’s e-mail comments from the bench by saying Luce sounded like a “loose cannon.”
“The language from the judge was very strong, very strong, indeed,” Caulkins said. “I believe it took the other side by surprise.”
Caulkins said Hicks indicated he wasn’t deciding ahead of time what evidence will be allowed in the record by his comments in the hearing about Luce’s e-mails, but remarked that the county’s characterization of the e-mails was plausible.
Assistant Attorney General Kyle Crews, representing EFSEC, after the hearing acknowledged the hearing didn’t go well for the state, and that the judge agreed to the requests of the appellants and denied what the state sought.
He declined to go into detail what the judge may have stated from the bench indicating Carmody would form a proposed order encompassing what the judge said and present it to the judge soon for final approval.
“One way or the other at the end of February it’s all going to the Supreme Court for a decision,” Crews said.
The appellants want to overturn the governor’s wind farm decision or have it sent back to the governor or EFSEC for reconsideration.
In prepared statements, Kittitas County commissioners said Luce’s e-mailed comments, back to 2004, show that Luce already has his mind made up about approving the project.
Commissioner David Bowen said it appears that the EFSEC decision “was predetermined and systematically manipulated” by Luce, and Luce’s actions have “irreparably damaged the credibility of EFSEC” in evaluating sites for alternative energy facilities, “a true injustice for all.”
Commissioner Mark McClain said the community, the project applicant and “the tenants of fair and impartial review have been hijacked by EFSEC, Mr. Luce in particular and the governor’s office, by prejudging the application.”
By Mike Johnston
10 December 2007
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