Hearing Set for December 22

On December 8, Assistant Attorney General Steven Owens, acting on behalf of the Department of Historic Resources (DHR), filed a Motion with the Virginia State Corporation Commission (SCC) requesting a new hearing date of December 22, 2009, on the matter of DHR’s complaint against Highland New Wind Development.

The Motion states: “The parties have engaged in dialogue and have discussed many avenues of mitigation and minimization of the impacts of the Defendant’s proposed development on the nearby historic Camp Allegheny Battlefield site. The parties have concluded that further dialogue will not be fruitful, and they have reached an impasse that requires a Hearing on the merits.”

A “hearing on the merits” is another term for an “evidentiary hearing,” which is another term for a trial, defined as: “A formal proceeding before a judge who hears testimony under the rules of evidence and makes a final decision relating to the matters presented. All such decisions are with prejudice since they are final adjudications of the matters presented.”

Read the Motion:

Hearing Examiner Alexander Skirpan issued a Ruling December 9, in which he found in favor of DHR’s pleading. The final line states: “It is directed that a public hearing shall be convened on Tuesday, December 22, 2009, at 10:00 am in the Commission’s Courtroom, Second Floor, Tyler Building, 1300 East Main Street, Richmond, Virginia, to receive evidence on this matter from DHR and Highland Wind.”

Read the Ruling:

December 22? As a date for a public, evidentiary hearing? Good grief!

We have no idea why DHR requested this date.

We do know that December 22 is a date absolutely, positively not conducive to broad-based public participation.

The universal reaction I have received is: “You have GOT to be kidding me!” Followed by groans of frustration.

After everything that has happened since August, the selection of this particularly problematic date for such a long-anticipated public hearing is simply hard to fathom.

Why is Public Participation So Important?

On September 21, Highland New Wind filed a “Motion in Limine-Viewshed” in an attempt to have evidence of visual impact on Camp Allegheny Battlefield withheld from future hearings regarding the company’s compliance with the SCC’s Final Order. On September 23, Hearing Examiner Skirpan denied this Motion, ruling that “visual impact evidence will be presented.”

As a practical matter, what does this mean? We are not exactly sure. However, judging by Highland New Wind’s sustained efforts to avoid a hearing, we’ve made an educated guess.

We think it means that the Hearing Examiner, in determining whether or not Highland New Wind has complied with the terms of the Final Order and entered into constructive consultation with DHR regarding the minimization of impact on Camp Allegheny, will consider actual empirical evidence of visual impact on the historic site. If so, then the Hearing Examiner’s determination of compliance will be based, at least in part, on his evaluation of the sincerity of the company’s efforts both to fully consider and to mitigate such impact.

So, what does “visual impact evidence” include? What “evidence” will DHR present to the Hearing Examiner?

Again, we are not certain; however, it should include a broad array of documentation available to DHR. Recent written statements of the American Battlefield Protection Program define the Battlefield boundaries and thus establish the site as being well-within two miles of the proposed wind turbines, belying Highland New Wind’s statement to the Hearing Examiner on September 23 that Camp Allegheny is more than two miles away. Maps, photo simulations, line-of-sight analyses, and at least one video, narrated by the President Emeritus of the Pocahontas County Historical Society, attest to the many vantage points from which the turbines will be visible at a distance of two miles or less. The inclusion of Camp Allegheny on the Civil War Preservation Trust’s 2009 list of most “at-risk” sites is eloquent testimony to the negative visual impact of 19, 400-foot structures on a location virtually unchanged in nearly 150 years, as are the statements of renowned historians bemoaning the desecration of this “hallowed ground.”

All of this “evidence” should be presented for the Hearing Examiner’s consideration along with something else: the testimony of the biggest stakeholders—The People. After all, Camp Allegheny is listed on the National Register of Historic Places. Camp Allegheny is where Americans died in sacred struggle for our Union. Camp Allegheny belongs to Us.

We’re the ones who will experience the negative impact—up close and personal. We’re the ones whose eyes will be affronted, whose experience of history will be diminished if not destroyed. This land is, quite literally, Our Land.

How can the Hearing Examiner give full consideration to “visual impact evidence” unless he hears from Us?

He can’t.

And so, despite the most-unfortunate and inconvenient selection of December 22 as the date for this “public hearing,” Brightside is asking all who can to attend.

We are petitioning the Hearing Examiner for assurance that The People will have the opportunity to speak. If you are interested in making a statement on December 22, please use the Contact Us link to let us know. Given the fact that this hearing has already been changed, postponed, or canceled five times, please check back here for updates.

Thank you.