Update on December 22 Hearing

A whole lot besides really bad weather has happened since December 14.

Today, Virginia State Corporation Commission Hearing Examiner, Alexander Skirpan held a “telephonic pre-hearing conference” pursuant to a Ruling he issued December 17.

Read the Ruling.As a result of today’s conference, SCC sources indicate that tomorrow’s hearing will be an extremely brief establishment of the facts of the case between the Department of Historic Resources and Highland New Wind Development, whereupon the Hearing Examiner will request both parties to submit written briefs in lieu of making oral arguments. The hearing will be webcast at 10:00 am EST via http://www.scc.virginia.gov/case/webcast.aspx

Serious winter weather has made it physically impossible for Brightside to attend the hearing—perhaps just as well, under these new, ever-surprising circumstances.

Let’s attempt to decipher what’s occurred…

The Hearing Examiner’s December 17 Ruling was made in response to Highland New Wind’s “Answer to the Motion for Hearing” Read The Motion for Hearing
and “Motion for Summary Judgment” Read The Motion for Summary Judgment,
both filed on December 14. As well as the Defendant’s “Motion to Certify Issues to the Commission and for an Ore Tenus Hearing” filed on December 16. An Ore Tenus Hearing is an oral hearing. Read The Motion for an Ore Tenus Hearing.

Several aspects of HNWD’s recent filings are instructive.

The dismissive and disrespectful tone of each of these missives speaks for itself.

In summary, HNWD contends that “the Director of the DHR has exceeded her jurisdiction by seeking monetary compensation from HNWD for the alleged visual impact of the project.”

HNWD contends that, because “Camp Allegheny lies entirely in Pocahontas County, West Virginia…DHR does not have the jurisdiction nor the authority to seek mitigation of an alleged impact to this site, because it is not one of the Commonwealth’s significant historic, archaeological, and cultural resources. Further, the Commission lacks authority or jurisdiction to impose conditions pertaining to sites outside the Commonwealth.”

Furthermore, HNWD asserts that “The powers expressly conferred upon DHR do not include the ability to require monetary payments. In fact, the powers expressly conferred upon DHR do not include the ability to consult or coordinate with a developer regarding a project, or to require any type of mitigation related to that project’s alleged impact on historic resources.”

HNWD insists not only that the entire matter of “viewshed” was settled law when Highland County issued a Conditional Use Permit, and cannot, therefore be legally addressed by the SCC, but that no law related to the preservation of historic properties applies to their project.

HNWD is not denying that they will adversely impact a historic property. They fully know that they will. They are simply insisting that no law requiring historic preservation prohibits such destruction.

And, perhaps, given the narrowest interpretation of current laws designed to protect sites on the National Register of Historic Places, HNWD is correct.

But just because it’s technically legal, doesn’t make it right.

This is why Americans consider the Law as a living body, a living organism that adjusts, and often expands, to address society’s interests.

To this end, DHR’s “Response to Defendant’s Motion for Summary Judgment” submitted via the Attorney General’s office on December 17, is quite encouraging.

Read DHR’s Response.DHR contends that the agency’s interests in preservation of historic resources are in no way limited to those resources located within the boundaries of the Commonwealth of Virginia. Since officials in West Virginia have no authority to dictate how HNWD operates in Virginia, it devolves to Virginia officials to insure that a national historic resource, located in West Virginia yet within the “viewshed” of HNWD, is properly considered and protected.

DHR further states that HNWD has “consistently, and, one must again assume, deliberately misrepresented DHR’s request for mitigation as a demand for payment of money to DHR. At best, this must be considered a gross misrepresentation of the facts. DHR has never demanded that any sum be paid to it directly for any mitigation measures nor has it ever suggested that such an action would constitute appropriate mitigation.”

The final paragraph in DHR’s response deserves a careful, deeply appreciative reading: “In fact, HNWD has gone so far as to say that any amount of money spent on mitigation measures that was not diverted from a previously committed amount would be unacceptable to the project’s finances. This statement must necessarily call into question the financial viability of the project as a whole. In this regard, of course, it must be noted that HNWD has expended substantial resources to resist meeting its consultation obligations under the Final Order. If resources are available to resist DHR, one wonders why those assets could not have been devoted to working with DHR towards a viable solution.”

One is tempted to believe that the Hearing Examiner wonders the same thing.

Perhaps we’ll find out tomorrow.