Kittitas County legal officials say they’re concerned that an official of the state Energy Facility Site Evaluation Council had improper contact with the governor’s office and with others related to wind farm issues as the council prepared to make a decision on the Kittitas Valley Wind Power Project.
County Deputy Prosecutor Neil Caulkins recently released the information in connection with the county’s court appeal of Gov. Chris Gregoire’s decision last year to approve the Kittitas Valley wind farm, a 65-turbine project planned for 12 miles northwest of Ellensburg and sought by Portugese-owned Horizon Wind Energy.
The county is challenging the wind farm’s approval by the state Energy Facility Site Evaluation Council, or EFSEC, and by Gregoire in the state Supreme Court.
Kittitas County, in a case joined with Residents Opposed to Kittitas Turbines and Steve Lathrop, want the governor’s decision overturned.
Thurston County Superior Court Judge Richard Hicks is presiding over decisions on what past legal records will be given to the state’s highest court for its consideration.
The judge earlier set Feb. 22 as the date for him to certify the record as complete and halt any further submission of material to the nine justices of the state Supreme Court. Because of delays, that date will likely be rescheduled to sometime at the end of February.
In a hearing before Hicks Jan. 4, the county asked for and received approval to possibly broaden
its investigation into actions of EFSEC Chairman Jim Luce and EFSEC member Chris Towne who represents the state Fish & Wildlife Commission on the state council.
Caulkins said the county’s search for information related to Luce’s actions may be expanded depending on depositions taken from Luce and Towne. If EFSEC and the governor’s office don’t agree with county-sought depositions or document requests, they can be challenged before Judge Hicks.
In earlier findings, Caulkins brought before Judge Hicks communications made by Luce that the county alleges shows that Luce was biased against the county’s contentions against wind farm approval, indicated he had prejudged the project before final decisions were made, and violated appearance of fairness rules by disdaining public comments.
Caulkins said new documentation appears to show Luce communicating to the governor’s office, to Puget Sound Energy officials, an attorney for Horizon Wind Energy and to a representative of the Northwest Independent Power Producers Coalition.
Caulkins said the county believes this and other communications by Luce reflect a violation of legal rules prohibiting ex parte contact – meaning improper contact by a decision-maker, judge or adjudicator without all sides in a case being informed about the contact or brought in on the same communication.
The communication Luce was involved in related to EFSEC using pre-emption to overrule the county’s 2006 rejection of the wind farm.
“We can’t see where there is any other conclusion other than Mr. Luce has violated ex parte contact prohibitions,” Caulkins said. “It shows serious bias and prejudice in being what appears an advocate instead of being an unbiased adjudicator.”
Assistant Attorney General Kyle Crews, representing EFSEC and the governor’s office, said the communication with the governor’s office was a factual one, only dealing with points of the law and EFSEC’s responsibilities under the law, not in advocating any position one way or the other.
“There is more to the story than what the county is presenting,” Crews said. “The county isn’t showing all the different hats that Mr. Luce, as EFSEC chairman, legally wears under the law. The county is releasing only that part of the record that supports their contentions. The county needs to see and reflect the whole record.”
Crews said the goal of the current discovery period in the case is to finalize the entire record and get it to the state Supreme Court where a decision can be rendered on several important issues that raise issues of statewide importance.
By Mike Johnston
22 January 2008
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