MINNESOTA SUPREME COURT IS NOW
IN SESSION.
>> GOOD MORNING, WE HAVE TWO
CASES FOR ARGUMENT THIS MORNING.
NORTHMET PROJECT PERMIT AND GARY
PAUL JOHNSTON VERSUS THE STATE
OF MINNESOTA, WE WILL TAKE THE
NORTHMET PROJECT PERMIT CASE
FIRST.
THIS IS CHIEF JUSTICE LORIE
GILDEA, I'M THE ONLY MEMBER OF
THE COURT IN THE COURTROOM.
THE OTHER MEMBERS ARE ATTENDING
REMOTELY WITH THE EXCEPTION OF
JUSTICE THISSEN WHO IS RECUSED
FROM PARTICIPATING IN THE FIRST
CASE.
BEFORE WE GET STARTED, COUNSEL,
LET'S JUST TEST YOUR MICROPHONES
AND YOUR EQUIPMENT TO MAKE SURE
EVERYBODY CAN HEAR EVERYBODY.
AND WE WILL START WITH COUNSEL
FOR THE APPELLANT, CAN YOU
IDENTIFY YOURSELF PLEASE?
>> JON KATCHEN FOR THE MINNESOTA
DNR.
>> MR. JOHNSON?
>> GOOD MORNING, MAY IT PLEASE
THE COURT.
>> GOOD MORNING, WE WILL TURN TO
COUNSEL FOR RESPONDENTS.
THERE ARE THREE OF THEM, WE WILL
START WITH MISS MACCABEE.
>> GOOD MORNING, THIS IS PAULA
MACCABEE.
>> AND MS. COHEN.
>> THIS IS ANN COHEN FOR MCA
RESPONDENTS.
>> GOOD MORNING, AND MISS.
GOOD MORNING.
>> WE WILL GET STARTED THEN, WE
WILL GIVE THE FIRST COUNSEL
ARGUING 3 MINUTES OF
UNINTERRUPTED TIME AND THEN I
WILL INTERRUPT YOU AND ASK
MEMBERS OF THE COURT IF THEY
HAVE QUESTIONS, MR. KATCHEN YOU
ARE TAKING 13 MINUTES,
MR. KATCHEN YOU MAY PROCEED.
>> GOOD MORNING, MAY IT PLEASE
THE COURT.
I WOULD LIKE TO BRIEFLY TOUCH ON
THREE ARGUMENTS FOR WHY THE
DECISION SHOULD BE AFFIRMED.
FIRST, THE NR'S CONSTRUCTION THE
CONTESTED CASE GIVES EFFECT TO
EVERY PROVISION WHEREAS THE
COURT OF APPEALS RENTED 37 WORDS
AND OPERATIVE.
SECOND, DNR'S CONSTRUCTION IS
CONSISTENT WITH FOUNDATIONAL
PRINCIPLES OF ADMINISTERED OF
LAW AND THIRD, AFTER TAKING A
HARD LOOK AT THE ISSUES,
COMMISSIONER ISSUED A RECENT
DECISION SUPPORTED BY
SUBSTANTIAL EVIDENCE EXPLAINING
WHY THE PETITIONS FAILED TO
SATISFY THE CRITERIA.
MOVING ON TO THE FIRST ISSUE, A
NATURAL READING OF THE CONTESTED
CASE HEARING PROVIDES THAT IT IS
THE COMMISSIONER WHO MUST
DETERMINE WHETHER A PETITION
SATISFIES THE CRITERIA.
THIS SHOULD NOT BE A
CONTROVERSIAL POINT.
IF THE COURT OF APPEALS
ELIMINATED THE COMMISSIONER
DISCRETION, AND INDEPENDENTLY
REVIEWS THE RECORD TO SEE IF A
CONTESTED CASE HEARING IS
WARRANTED.
THE COURT OF APPEALS COMPOUNDED
THIS ERROR BY REVIEWING COURT
FINDS ON ITS OWN, THE FACTS ARE
INCREDIBLY IN DISPUTE, THE
HEARING MUST BE HELD.
THERE ARE THREE MAIN PROBLEMS,
FIRST, IT RUBBED RENDERS SUBDIVN
THREE A INAPPLICABLE FROM
SUBDIVISION ONE.
I RENDERS THE SECOND HALF OF
SUBDIVISION THREE SUPERFLUOUS,
NULLIFIES THE STATUTORY
DISCRETION GIVEN BY THE
COMMISSIONER.
THE LOWER COURT'S INTERPRETATION
WOULD NOT BE ALTERED IN ANY WAY
IF THE 37 WORDS IN THE STATUTE
THAT SUPPORT DNR CONSTRUCTION
WERE STRUCK BACK.
BUT IF AN INTERPRETATION OF THE
STATUTE CAN MEAN THE SAME THING
WITH OR WITHOUT 37 WORDS, THAT
CONSTRUCTION NECESSARILY FAILS
TO GIVE FACT TO THE WORDS
ADOPTED BY THE AGENCY -- BY THE
LEGISLATURE.
THE LOWER COURT'S CONSTRUCTION
PRESENTS A DRAMATIC DEPARTURE
FROM DECADES OF A MINISTRY OF
LAW.
IN PARTICULAR, THE LOWER COURT'S
HOLDING REQUIRES APPELLATE
COURTS TO REVIEW AND SUBSTITUTE
ITS JUDGMENT FOR AGENCIES.
DECADES OF PRECEDENT ESTABLISHED
THAT THIS IS NOT HOW AGENCY'S
DECISIONS ARE REVIEWED ON
APPEAL.
BUT PERHAPS THE BIGGEST FLAW IS
THAT THE COURT NEVER ADDRESSED
WHY THE COMMISSIONER WAS NOT
WARRANTED HERE.
DNR'S DAM SAFETY ADDRESS ALL THE
CONCERNS RAISED AND ASKED BLAINE
WHY A CONTESTED CASE HEARING WAS
NOT NEEDED ON THOSE ISSUES.
THE COMMISSIONER EXCLAIMED, FOR
EXAMPLE, THAT SUBJECT TO THE SUB
DISPUTES WERE ABOUT POLICY OR
LAW.
ON SOME, DNR DID NOT NEED A
HEARING TO RESOLVE ISSUES WHERE
THE PETITION WAS MISAPPREHENDED
FACTS.
AND FINALLY, A HEARING WOULD NOT
AID THE DECISION-MAKING PROCESS
BECAUSE THE DISPUTED ISSUES HAVE
BEEN EXHAUSTED AND SCRUTINIZED
FOR YEARS.
IN CLOSING, WE RESPECTFULLY URGE
THIS COURT TO CAREFULLY REVIEW
THESE FINDINGS AND DEMONSTRATE
THE DNR ISSUED A RECENT DECISION
IN SUPPORT OF THAT RECORD.
>> THINK YOU COUNSEL.
LET ME TURN TO QUESTIONS NOW.
JUSTICE ANDERSON?
YOU HAVE TO UNMUTE YOUR
MICROPHONE.
>> I DON'T HAVE ANY QUESTIONS AT
THIS TIME, I MAY LATER.
>> JUSTICE HUDSON?
>> YES, COUNSEL, ON THAT LAST
POINT THAT YOU MADE, THE COURT
OF APPEALS SAID IN ITS OPINION
THAT THEY REJECTED DNR'S
ASSERTION THAT THE FACT DOES NOT
MEET STATUTORY REQUIREMENT FOR
CONTESTING A HEARING WEIRD IF
THE AGENCY HAS ALREADY
CONSIDERED AN ISSUE DURING
ENVIRONMENTAL REVIEW.
SO THE COURTS SEEM TO BE TAKING
ISSUE WITH YOUR CLAIM THAT YOU
JUST MADE HERE AS WELL, THAT
THESE ISSUES HAVE BEEN REVIEWED
EXHAUSTIVELY OVER A LONG PERIOD
OF TIME.
I'M JUST WONDERING WHAT YOUR
RESPONSES TO THAT STATEMENT BY
THE COURT OF APPEALS.
>> WE HAVE TWO ISSUES, IT
DOESN'T ACCURATELY CHARACTERIZE
WHAT THE AGENCY SAID, IT WASN'T
JUST THE ENVIRONMENTAL REVIEW.
THESE WERE ALSO ADDRESSED AND
SCRUTINIZED DURING PERMANENT.
BUT IT CONFLICTS WITH THIS
COURT'S DECISION WITH NORTHERN
STATE POWER, THE COURT OF
APPEALS IN THAT DECISION MADE
THE EXACT SAME FINDING AND THIS
COURT REVERSED, IT SAID IF
ISSUES HAD BEEN ADEQUATELY
SCRUTINIZED DURING THE PERMIT
AND THE COMMISSIONER DETERMINES
THERE IS NO NEED FOR A CONTESTED
CASE HEARING, THOSE FINDINGS ARE
ENTITLED.
>> THANK YOU.
AND SECONDLY, WHAT WOULD YOU SAY
IS THE LEGAL STANDARD THAT YOU
ARE PROPOSING FOR US TO ADOPT?
THAT A PETITIONER MUST SHOW TO
MERIT A CONTACTED THE BACK
CONTESTED CASE?
MORE SPECIFICALLY I'M GETTING AT
WHAT BASIS UNDERLINES A DISPUTED
MATERIAL ISSUE OF FACT MEAN IN
THE CONTEXT OF 3A3?
>> MY RULE OF LAW IS YOUR
DECISION IN HERRING LAKE, WHAT
THAT DECISION DID, ITS MODE OF
ANALYSIS IS WHAT WE WOULD
ENCOURAGE THE COURT TO ADOPT.
AND WHAT THE COURT DID THEIR IS
DETERMINE WHETHER OR NOT THE
AGENCY'S FINDINGS, EXPLAINING
WHY THERE WAS NO REASONABLE
BASIS AND IN PARTICULAR WHY A
HEARING, AN ADDITIONAL PROCESS
WOULD NOT AID THE AGENCY IN
RENDERING THE APARTMENT.
AND THOSE FINDINGS ARE REVIEWED
TO SEE IF THEY ARE SUPPORTED BY
A REASONABLE BASIS.
>> YOU ARE ON MUTE, JUSTICE
HUDSON.
>> THANK YOU, CHIEF.
ONE LAST QUESTION.
OBVIOUSLY THERE'S A LOT HERE, I
THINK ONE ISSUE THAT CONCERNS ME
THE MOST IN TERMS OF LET'S SAY
WE ADOPT YOUR FRAMING OF THE
PROPER INTERPRETATION, SO WE BE
LOOKING FOR A SUBSTANTIAL IN THE
RECORD.
THE ONE ISSUE THAT DID CONCERN
ME IS DEALT WITH THE
EFFECTIVENESS OF THE BENTONITE
AMENDMENT, I WANT TO TAKE YOU TO
MCA'S PRINCIPAL BRIEF ON PAGE 38
AND 39, THEY HAVE A WONDERFUL
CHART IN THERE ABOUT THE
FINDINGS THAT THEY CLAIM THE DNR
MADE AND WHAT THE RECORD
ACTUALLY SHOWS.
AND I GUESS MY PRINTABLE
CONCERN, AND YOU TALK ABOUT
THESE THINGS IN YOUR OWN
FINDINGS AS WELL, ON THE
BENTONITE EFFECTIVENESS.
ONE OF THE THINGS THAT CONCERNS
ME IS THERE IS A REPEATED
CITATION TO THE FINAL
ENVIRONMENTAL REPORT AT A-585
THAT DESCRIBES THE BENTONITE
LAYER THAT WOULD REDUCE OXYGEN
INFILTRATION BY UP TO 90%.
AND I HAVE TO CONFESS,
MR. KATCHEN, I HAVE LOOKED HIGH
AND LOW AND OUR CLERKS HAVE
LOOKED HIGH AND LOW FOR THAT
STUDY AND WE CANNOT FIND IT.
WE SEE A REFERENCE TO IT, BUT
YOU SEEM TO RELY HEAVILY ON THAT
FOR THE EFFECTIVENESS OF THE
BENTONITE AMENDMENT AND I'M
WONDERING CAN YOU POINT ME WHERE
IN THE RECORD, IS THE STUDY
ITSELF IN THE RECORD OR WHERE IS
THAT?
I DON'T FIVE FIND A-585.
>> IT SHOULD BE IN THE RECORD,
IF IT'S NOT I KNOW WE STRUGGLED
UPLOADING ALL OF THE DOCUMENTS
AND MAYBE THIS IS ONE THAT FELL
OUT.
IF IT'S NOT, WE WILL GET IT TO
YOU.
>> OKAY, BUT -- I'M SORRY, GO
AHEAD.
>> SORRY, I WAS -- GO AHEAD.
>> OKAY, THANK YOU.
SECONDLY, THERE'S A REFERENCE
SEVERAL TIMES AS WELL TO A-549
FROM THE FINAL ENVIRONMENT
IMPACT STATEMENT.
WHEN I LOOK AT THAT, IT'S JUST A
COMMENT, A PUBLIC COMMENT.
ARGUING THAT THE FBI ASKED
SHOULD INCLUDE INFORMATION FROM
OTHER MINE SITES.
SO THAT CONCERNED ME AS WELL.
AND THEN AGAIN, I GUESS LASTLY
YOU CITE A-524 BUT IT DOESN'T
MENTION BENTONITE.
AND SO THERE'S A NUMBER OF
ISSUES LIKE THAT.
AND THEN I GUESS LASTLY WOULD BE
TO POINT TO A NUMBER OF
CONDITIONS THAT WERE ADDED TO
THE APARTMENT BUT SOME OF THOSE
CONDITIONS ESSENTIALLY ALLOW
POLYMET TO TEST THE BENTONITE
AMENDMENT FOR A NUMBER OF
YEARS TO SEE IF IT WORKS, AND
SUGGEST THAT IT MIGHT NOT WORK
AND THEN THEY CAN DO A STUDY
LATER ON YEARS DOWN THE ROAD
AFTER THE MINE HAS BEEN IN
EFFECT.
SO WHEN I PUT ALL OF THOSE
TOGETHER, ALONG WITH SOME
STATEMENTS FROM YOUR OWN EXPERTS
QUESTIONING THE VIABILITY OF THE
BENTONITE AMENDMENT, I WONDER IF
THERE IS SUBSTANTIAL EVIDENCE.
HELP ME WITH THAT.
>> SURE, FIRST THERE ARE AGAIN
STUDIES THAT WE WILL GET TO YOU
IF THEY ARE NOT IN THE RECORD.
BUT MOST IMPORTANT LEE, DNR'S
EXPERTS REVIEWED ALL OF THIS
EVIDENCE, WAS WELL AWARE OF THE
DISPUTE AND DETERMINED THAT
IT WILL BE EFFECTIVE.
THE EXPERT SAID IT WOULD BE
EFFECTIVE, HE QUESTIONED WHETHER
OR NOT DNR WAS PROPOSING 3% OR
POLYMET WAS PROPOSING 3%, HE
WANTED A HIGHER VOLUME OF
BENTONITE TO BE APPLIED.
AND SO THEIR OWN RECORDS, THEIR
OWN EXPERTS SUGGEST THAT IT
WOULD BE AVAILABLE AND EFFECTIVE
EFFECTIVE.
BUT IN ORDER TO -- THE MOST
IMPORTANT PART HERE IS IN ORDER
TO DETERMINE THE EFFECTIVENESS
OF BENTONITE, DNR IMPOSED
RIGOROUS MONITORING AND TESTING
PROGRAMS AND THEIR THREE
DIFFERENT APPLICATIONS.
THE FIRST AND MOST IMPORTANT IS
APPLYING IT TO THE SPACE IN THE
WALL, THERE CAN BE NO
CONSTRUCTION AND THIS IS DAM
SAFETY CONDITION NUMBER 31 AND
THREE PERMIT TO MINE CONDITION
89.
THERE CAN BE NO CONSTRUCTION
UNTIL POLYMET PROVES THE
EFFECTIVENESS OF BENTONITE.
SO THERE IS NO DEPOSITION OF
TAILING INTO THE BASIN WITHOUT
DNR DETERMINING THAT BENTONITE
WILL IN FACT BE EFFECTIVE.
THAT TYPE OF APPROACH IS VERY
COMMON IN MINING AND OTHER
PERMANENT DECISIONS ISSUED BY
THIS COURT WHERE PERMITS ARE
ISSUED WITH CONDITIONS AND THE
PERMIT TEAM NEEDS TO GO OUT AND
DEMONSTRATE ITS EFFECTIVENESS.
DNR MADE A DETERMINATION THAT IT
WILL BE BUT IN ORDER TO VERIFY
THAT DETERMINATION, IT'S IMPOSED
A VERY VIGOROUS TESTING
PROTOCOL.
IN FACT, MCEA'S EXPERT ALSO MADE
THE SAME SUGGESTION.
MAKE SURE THERE'S PILOT TESTING
THAT WILL PROVE ITS
EFFECTIVENESS AND THAT'S WHAT
WE'VE DONE HERE.
>> ONE LAST QUESTION, WHAT WAS
THE SITE FOR THAT AGAIN?
>> FOR WHICH PART?
>> THE CONDITION THAT YOU ARE
REFERRING TO.
HE SAID NUMBER 30 SOMETHING.
>> DAM SAFETY CONDITION 31.
AND THAT SAYS PRIOR TO DAM
CONSTRUCTION, PERMIT SHALL
OBTAIN WRITTEN APPROVAL.
CONSTRUCTION MAY NOT COMMENCE
UNTIL SUCH WRITTEN APPROVAL IS
OBTAINED.
AND IT'S ALSO AGAIN IN THE
PERMIT TO MINE CONDITION 81.
>> NO FURTHER QUESTIONS.
>> JUSTICE CHUTICH?
>> I WANT TO ASK YOU ABOUT THE
PERMIT TERM.
IF WE AGREE WITH THE
COMMISSIONERS PERFORMANCE-BASED
INTERPRETATION OF SECTION
93.481, DOESN'T THAT MAKE THE
COMMISSIONERS ROLL NEGLIGIBLE
WESTERN MARK THERE IS NO NEED TO
DETERMINE THE TERMS BECAUSE THEY
ARE FIXED TO THE CLOSURE
RECLAMATION, AS I UNDERSTAND
THE RECORD THAT COULD BE WATER 0
YEARS.
>> WRITES, SO THE DNR HAS A
LONG-STANDING PRACTICE AND TECH
AT NIGHT AND ISSUING PERMITS
THAT ARE PERFORMANCE-BASED.
THE TERM CAN CLEARLY BE
INTERPRETED TO REQUIRE FIXED
TERM, OR IT CAN BE
PERFORMANCE-BASED, AMBIGUOUS.
DNR WANTS TO BE ABLE TO ENSURE
POLYMET IS ALWAYS RESPONSIBLE
FOR RECLAMATION AND OBLIGATIONS,
IF THERE IS A SET DATE THAT
TURNS OUT TO BE WRONG BY A YEAR
OR A DECADE, POLYMET WOULD HAVE
AN ARGUMENT THAT IT SHOULD BE
RELEASED SINCE THE TERM HAS
EXPIRED.
TO PREVENT THAT OUTCOME, WE HAVE
A PERFORMANCE-BASED.
THEY NEED TO SHOW THAT -- I'M
OVER MY TIME.
I'M SORRY.
>> I WAS JUST GOING TO INTERRUPT
YOU.
YOU ARE INTO MR. JOHNSTON'S
TIME.
LET'S GO AHEAD AND GO TO
MR. JOHNSTON.
AND JUST A CHUTICH, YOU STILL
HAVE THE FLOOR.
>> LET ME SEE, YOUR CLIENT
DIDN'T SEEK REVIEW OF THE
STANDING ISSUE.
DO YOU CONCEDE THAT STANDING IS
APPROPRIATE FOR PROPERTY OWNERS
OF WATER LEGACY AND MCEA?
>> YOUR HONOR, WE DID AGREE WITH
DNR DECISION AND THE COURT
BELOW, BUT I THINK WE IN GENERAL
THE STANDING SHOULD BE
RELATIVELY NARROW AND LIMITED TO
PROPERTY OWNERS.
IT DOESN'T AFFECT THE OUTCOME OF
THIS CASE, BECAUSE NO MATTER
WHAT THEY CAN'T SATISFY THE
THREE CRITERIA IN SECTION
93.483.
>> I WANT TO ASK YOU ABOUT YOUR
INTERPRETATION OF SECTION
93.483.
YOU SAID IT FORCES THE
COMMISSIONER TO MAKE EVIDENTIARY
FINDINGS CONCERNING THE
USEFULNESS OF THE HEARING, THEN
WE APPLY THE SUBSTANTIAL
EVIDENCE TEST TO THAT.
HOW DOES THAT -- I THINK THERE
WAS SOME STATEMENT THAT MAY BE
CONFLATES THE PERMIT, THE ISSUE
AS WELL.
HOW ARE THOSE SUBSTANTIAL
EVIDENCE REVIEWS DIFFERENT?
WITH THE ENVIRONMENTAL GROUPS
HAVE TO SHOW THAT THE STANDARDS
FOR PERMITTING WEREN'T NECESSARY
NECESSARY?
IS THERE COMPLETION OF THE
STANDARDS FOR THE COURT?
>> YOUR HONOR, I THINK THAT THE
CONTESTED CASE HEARINGS
STANDARDS ARE REALLY INTENDED TO
ALLOW DNR TO DECIDE WHETHER A
CONTESTED CASE HEARING WILL BE A
USEFUL TOOL IN ITS
DECISION-MAKING.
THEY FORCED DNR TO MAKE
FINDINGS, AS THEY DID IN THIS
CASE EXTENSIVELY ABOUT WHETHER
THERE IS NEW EVIDENCE THAT NEEDS
TO BE CONSIDERED FROM DNR'S
PERSPECTIVE.
I DON'T THINK THAT'S THE SAME
THING AS DNR DECIDING WHETHER
POLYMET HAS SATISFIED ALL OF THE
PERMEATING REQUIREMENTS.
AND I THINK, WE CAN SEE THAT DNR
HAS DIVIDED THINGS UP BETWEEN
ITS FINDINGS RELATED TO POLYMET
SATISFYING RULES AND FINDINGS
RELATED TO WHETHER RELATORS HAVE
PRESENTED EVIDENCE THAT CREATES
A REASONABLE BASIS SO THAT A
HEARING WOULD ALLOW SUBSTANTIAL
INFORMATION TO AID THE
COMMISSIONER'S DECISION.
>> THANKS CHIEF, NOTHING
FURTHER.
>> JUSTICE McKEIG?
>> ONE QUESTION.
COUNSEL, ON THE ISSUE OF WHAT
SHOULD BE INCLUDED AND WHETHER
IT SHOULD BE THE UP-TO-DATE
INFORMATION OR IF IT SHOULD BE
LIMITED TO THE PREVIOUS RECORD.
IT'S MY UNDERSTANDING THAT
POLYMET DOES NOT WANT TO EXPAND
THE RECORD.
BUT OBVIOUSLY THE COURT OF
APPEALS DID NOT AGREE.
CAN YOU ADDRESS THAT ISSUE
PLEASE?
>> OF COURSE, AND THEN
ADMINISTRATIVE APPEAL UNDER THE
MINNESOTA ADMINISTRATIVE
DECISION THE INFORMATION THAT IS
BEFORE THE AGENCY WHEN IT MAKES
A DECISION, SO TO THE EXTENT
THAT THE COURT OF APPEALS WANTED
TO LOOK AT THINGS THAT HAPPEN
AFTER THE DECISION WAS MADE,
IT'S BASICALLY WONDERING WHAT
THE AGENCY WOULD HAVE DONE IF IT
HAD KNOWN THINGS THAT IT DIDN'T
KNOW WHEN IT MADE THE DECISION.
THE ENTIRE PREMISE OF REVIEW IS
A DECISION BASED ON THE RECORD.
>> BUT DOESN'T THE LAW ALLOW FOR
THE EXPANSION OR FOR THERE TO BE
THIS EXPANSION OF JUDICIAL
NOTICE?
WHY WOULDN'T THAT MAKE SENSE
GIVEN HOW CONTESTED THIS CASE
HAS BEEN AND GIVEN HOW IMPORTANT
THIS ISSUE IS TO EVERYONE?
>> WELL, YOUR HONOR, I THINK TWO
REASONS.
ONE, IF THERE WERE A LIMITED
ABILITY TO CONTINUE EXPANDING
THE RECORD IT'S BEEN AT THIS
POINT NEARLY TWO YEARS SINCE THE
ORIGINAL DECISION.
OBVIOUSLY, NEW THINGS ARE ALWAYS
HAPPENING IN THE WORLD.
THE AGENCY'S DECISION HAS TO BE
JUDGED BY WHAT IT MEANT AT THE
TIME.
COROLLARY TO THAT IS WHEN THESE
THINGS DO HAPPEN, AGENCIES HAVE
THE ABILITY TO CONSIDER THEM IN
THE CONTEXT OF A DIFFERENT
DECISION, WHETHER THAT BE A
REQUEST TO AMEND THE PERMIT OR
SOMETHING LIKE THAT.
THAT'S EXACTLY WHAT'S HAPPENING
WITH NEW INFORMATION THAT'S BEEN
RAISED IN THIS CASE, INCLUDING
BOTH THE DAM FAILURE IN BRAZIL
THAT HAPPENED AFTER THE PERMIT
WAS DESIGNED AND THE CHANGE IN
OWNERSHIP STAKE, BOTH OF THOSE
ISSUES EITHER WERE OR ARE BEING
ADDRESSED BY DNR IN SEPARATE
DECISIONS THAT ARE SEPARATELY
APPEALED.
SO I THINK IT'S IMPORTANT FROM
AN ADMINISTRATIVE LAW
PERSPECTIVE TO KEEP THE AGENCY'S
DECISION CABIN TO WHAT IT
ACTUALLY HAD IN FRONT OF IT TO
HIM AND TO ADDRESS THINGS THAT
HAPPEN LATER IN SEPARATE
DECISIONS.
>> THANK YOU.
>> JUSTICE MOORE?
>> THANK YOU, CHIEF.
I UNDERSTAND THAT YOUR CLIENT'S
INTERPRETATION OF SUBDIVISION
3A3 IS THAT THE COMMISSIONER
MUST GRANT TO CONTEST A CASE
PETITION IF THERE IS A
REASONABLE BASIS UNDERLYING
DISPUTED ISSUES AND THE
COMMISSIONER BELIEVES A
CONTESTED CASE WOULD HELP HER
RESOLVE THOSE DISPUTED FACTS TO
MAKE A FINAL DECISION.
AND MY UNDERSTANDING YOUR
INTERPRETATION?
>> I GUESS I WOULD SAY IN A
SLIGHTLY DIFFERENT WAY, I THINK
WHEN THE STATUTE SAYS REASONABLE
BASIS UNDERLYING THE DISPUTED
MATERIAL FACTS SO THAT A
CONTESTED CASE HEARING WOULD
INTRODUCE INFORMATION.
IT'S REALLY LINKING THOSE TWO
FINDINGS, IT'S NOT SAYING THERE
IS A REASONABLE BASIS FINDING
AND SEPARATELY THERE'S A
INTRODUCING INFORMATION TO AID
THE COMMISSIONER FINDING.
IT'S SAYING THAT A REASONABLE
BASIS IS DEFINED BY AND
UNDERSTOOD IN TERMS OF THE
PURPOSE OF A HEARING, WHICH
WOULD BE TO INTRODUCE
INFORMATION TO AID THE
COMMISSIONER.
>> SO YOUR POSITION IS THAT THE
COMMISSIONER DECIDES WHETHER OR
NOT THAT REASONABLE BASIS EXISTS
EXISTS?
>> THAT'S CORRECT.
>> AND YOUR CLIENT OBVIOUSLY
BELIEVES THE COMMISSIONER
DECISION WAS CORRECT, IS THAT
RIGHT?
>> THAT IS CORRECT.
>> THE ADMINISTRATIVE LAW RAISED
IN A INTERESTING QUESTION, THEY
SAY FOR THE COMMISSIONER TO FIND
THE SECTION REVIEW COULD NOT BE
AN AID TO HER DECISION-MAKING IS
AT BEST SPECULATIVE.
GIVEN THE COMPLEXITY OF THIS
RECORD, GIVEN THE UNPRECEDENTED
NATURE OF THIS PERMIT, DON'T
THOSE HAVE A REASONABLE POINT
THAT THE COMMISSIONERS ENGAGING
IN SPECULATION RELATED TO THE
DESIRABILITY OF A CONTESTED CASE
HEARING?
>> I DON'T THINK SO, YOUR HONOR.
THE COMMISSIONER IS THE ULTIMATE
DECISION-MAKER IN THIS CASE.
IT'S UP TO THE COMMISSIONER,
EVEN IF THE COMMISSIONER DECIDES
TO HOLD A CONTESTED CASE
HEARING.
ULTIMATELY, THE COMMISSIONER
WILL MAKE THE DECISION.
SO IF THE COMMISSIONER AFTER 13
YEARS OF ENVIRONMENTAL REVIEW
AND PERMIT REVIEW HAS CONCLUDED
THAT ALL THE INFORMATION THAT
RELATORS PUT INTO THE RECORD AND
THAT CONTESTED CASE PETITION IS
JUST REPEATING EVERYTHING THEY
SAID BEFORE, AND THAT IS WHAT
THE COMMISSIONER CITED IS THE
CASE.
THEN HOLDING A NEW CONTESTED
CASE HEARING REALLY COULD JUST
INTRODUCE CONFUSION FOR
EVERYONE, INCLUDING THE COURTS
REVIEWING IT.
I AGREE THAT THIS IS AN
EXTREMELY COMPLICATED RECORD,
WITH LOTS OF FACTS.
BUT THE PRINCIPLES OF
ADMINISTRATIVE LAW SAY THAT'S
WHEN YOU DEFER AND LEAN ON THE
AGENCY, NOT GO TO AN OUTSIDE
ADMINISTRATIVE LAW TO MAY OR MAY
NOT HAVE ANY SCIENTIFIC
EXPERTISE TO MAKE THESE
DECISIONS.
ULTIMATELY, THIS IS A SCIENTIFIC
DECISION, NOT A DECISION THAT
NEEDS TO BE RESOLVED IN THE
ADVERSARIAL PROCESS.
>> THINK YOU CHIEF.
>> JUSTICE HUDSON?
>> COUNSEL, BACK ON THE
BENTONITE AMENDMENT.
UNTIL MR. KATCHEN'S STATEMENT TO
ME ABOUT THE CONDITIONS THAT
WERE -- THAT HAD BEEN PUT ON THE
USE OF THE BENTONITE
SPECIFICALLY THAT NO
CONSTRUCTION WAS TO BEGIN UNTIL
THAT HAS BEEN EFFECTIVELY
TESTED, BECAUSE THAT WAS MY
UNDERSTANDING BEFOREHAND.
I WAS QUESTIONING WHY WE SHOULD
EVEN CONSIDER THESE SPECIAL
CONDITIONS ABOUT FUTURE PILOT
TESTING THAT COULD GO OUT FOR
YEARS AFTER THE MINE HAS BECOME.
BUT IT'S MY UNDERSTANDING, IF I
HEARD MR. KATCHEN CORRECTLY, NO
CONSTRUCTION CAN BEGIN UNTIL
SOME OF THAT BENTONITE TESTING
HAS BEEN DONE AND WE'VE GOTTEN
SOME RESULTS FROM THAT.
IS THAT YOUR UNDERSTANDING OF
THE WAY THE PERMIT IS
STRUCTURED?
>> YES, MR. KOCH KATCHEN ACCURAY
DESCRIBE THAT WITH RESPECT TO
BENTONITE TESTING.
>> GO AHEAD.
>> THAT'S FINE, YOU GO AHEAD.
>> IS -- ARE THERE SIMILAR
CONDITIONS SET WITH RESPECT TO
BENTONITE TESTING ON ME POND
BOTTOM?
AND HOW HAS NOT BEEN DETERMINED
THAT YOU ARE GOING TO DO THAT?
I NOTICED IN SOME OF THE
DIAGRAMS YOU ARE TALKING ABOUT
EITHER BENTONITE INJECTIONS OR
BENTONITE SPREADING OF SOME SORT
SORT.
WHAT'S THE STATUS?
AS YOU UNDERSTAND THE CONDITIONS
NOW.
>> THAT'S JUST WHAT I WAS ABOUT
TO SAY.
THE POND BOTTOM TESTING REALLY
THE FIRST THING HAS TO DECIDE IS
WHETHER IT'S EVEN NECESSARY, AND
THAT WILL DEPEND ON TESTING THAT
HAPPENS AFTER CONSTRUCTION HAS
BEGUN BECAUSE THE ENTIRE
QUESTION IS WHETHER TO WHAT
DEGREE THE WATER COVERAGE AND
BENTONITE ON SIDE SLOPES AND ALL
THE OTHER ENGINEERING CONTROLS
IN PLACE WILL PREVENT
CONTAMINATION OUT OF THE BASINS.
FIRST THERE'S THE QUESTION OF DO
WE NEED POND BOTTOM COVER, AND
IF THERE IS ONE NEEDED DONE
THERE IS TESTING TO KNOW EXACTLY
HOW THAT'S REINSTALLED.
>> COUNSEL.
VERY QUICKLY, I KNOW THE TIME IS
EXPIRED BUT VERY QUICKLY, I
FOUND IT INTERESTING GIVEN THE
DEPTH OF THE ARGUMENT HERE AND
NATURE OF THE DISPUTE, THERE WAS
NO APPEAL OF THE FINAL, I WONDER
IF THAT'S SIGNIFICANT, LEGALLY
SIGNIFICANT AND IF YOU HAVE AN
OBSERVATION ABOUT THAT.
I INTEND TO ASK RESPONDENTS
ABOUT THAT AS WELL.
>> I DO THINK IT SIGNIFICANT,
YOUR HONOR, I THINK IT'S
SIGNIFICANT BECAUSE WHEN DNR
BEGAN DETERMINING PROCESS IT
KNEW THAT IT HAD SPENT TEN YEARS
AND MADE AN ADEQUACY
DETERMINATION THAT NO ONE HAD
APPEALED.
SO I THINK IT SIGNIFICANT IN THE
SENSE THAT DNR WAS COMPLETELY
REASONABLE TO RELY ON ITS
FINDINGS IN THE UNCHALLENGED AS
IT PROCEEDED WITH THE PROCESS.
>> THINK YOU COUNSEL.
WE WILL SEE YOU BOTH BACK ON
REBUTTAL, WE WILL TURN NOW TO
COUNSEL FOR THE RESPONDENTS.
AND WE ARE TO START WITH
MISS MACCABEE.
>> THANK YOU YOUR HONOR.
MAY IT PLEASE THE COURT, MY NAME
IS PAULA MACCABEE AND I
REPRESENT WATER LEGACY.
THE POLYMET COPPER NICKEL MINE
WOULD BE MINNESOTA'S FIRST SALT
MINE, OTHERS WOULD FOLLOW IN THE
BOUNDARY WATERS AND
LAKE SUPERIOR BASIN.
ACROSS THE GLOBE, EVERY SULFITE
MINE HAS RESULTED IN ACID
DRAINAGE OR TOXIC METAL
POLLUTION.
THAT'S 100% FAILURE RATE IN
PROTECTING CLEAN WATER.
DAM FAILURES, PARTICULARLY
UPSTREAM DAMS, HAVE RESULTED IN
ENVIRONMENTAL CATASTROPHE.
AND LOSS OF LIFE.
MINES HAVE GONE BANKRUPT WHILE
PARENT CORPORATIONS TAKE THE
PROFIT AND LEAVE CLEANUP COSTS
FOR TAXPAYERS.
WE NEED TO GET THIS RIGHT.
THE COURT OF APPEALS GOT IT
RIGHT IN REVERSING POLYMET'S
PERMITS.
THE COURT FOUND DNR ERROR AND
DIDDENIED A CONTESTED CASE.
WHAT ARE DAM CONSTRUCTION IS
ACCEPTABLE, WHETHER BENTONITE
CLAY WILL WORK, WHETHER THERE
ARE ALTERNATIVES TO WHAT TAILING
STORAGE AND WHAT CLOSURE THAT
ARE FEASIBLE AND PRUDENT TO
REDUCE ENVIRONMENTAL HARM.
AND WHETHER PLACING GLEN COURT
ON THE PERMIT IS REQUIRED BY
RULE.
THE COURT ALSO FOUND THAT DNR
ERRED IN ISSUING POLYMET'S
PERMIT WITHOUT A FIXED TERM.
I FOCUS ON THE CONTESTED CASE
HEARING AND: REPRESENTING
SEVERAL CONSERVATION GROUPS
JOINS OUR CONTESTED CASE
ARGUMENTS AND ALSO SEEKS TO
ADDRESS DNR'S FAILURE TO SET A
PERMIT TERM AND INSTEAD ALLOW AN
ENDLESS WET CLOSURE.
VANESSA RAY-HODGE, COUNSEL FOR
THE FOND DU LAC BAND OF
LAKE SUPERIOR CHIPPEWA WILL
ARGUE THAT ADDITIONAL ERRORS OF
LAW SUPPORT REVERSAL OF THE
POLYMET PERMITS.
THE POLY TO THE POLYMET PERMIT
CALLS FOR A CONTESTING CASE
HEARING ON PRINCIPLES.
AN ADVERSARIAL HEARING PROCESS
WILL HELP THE AGENCY RECEIVE
BETTER SUBSTANTIVE RESULTS.
A FOCUSED RECORD WILL SUPPORT
JUDICIAL REVIEW.
THREE, AN OPEN, NEUTRAL HEARING
WILL INCREASE PUBLIC CONFIDENCE.
RESPONDENTS ASK THIS COURT TO
ORDER A HEARING BASED ON THE
FOLLOWING RULE OF LAW.
A CONTESTED CASE HEARING IS
REQUIRED BY THE PLAINTEXT OF
SECTION 93.483, WHEN THERE IS A
REASONABLE BASIS UNDERLYING
DISPUTED MATERIAL FACTS BASED ON
COMPETENT EVIDENCE, EXPERTS, AND
AUTHORITY.
THIS PROCEDURAL RIGHT IS
DESIGNED TO INTRODUCE
INFORMATION THAT WOULD AID IN
RESOLVING DISPUTED FACTS PRIOR
TO THE AGENCY'S FINAL DECISION
ON A PROPOSED MINE.
THEY CONTESTED CASE STATUTE IS
ABOUT RESOLVING DISPUTED
MATERIAL FACTS.
THERE IS NO -- IN THE WAY
RESPONDENTS AND COURT OF APPEALS
HAVE INTERPRETED 93.43.
THANK YOU.
THAT COMPLETES MY STATEMENT.
>> THANK YOU COUNSEL.
JUSTICE ANDERSON.
>> THANKS COUNSEL, A QUESTION
THAT I ASKED OPPOSING COUNSEL.
WHAT ABOUT THE FAILURE TO APPEAL
THE FINAL DIS?
>> YOUR HONOR, THAT IS NOT
SIGNIFICANT FOR TWO REASONS.
RESPONDENTS DID NOT APPEAL FROM
THE DIS, I SPEAK FOR WATER
LEGACY.
WE HAD NO OPPORTUNITY TO HAVE
ANY KIND OF HEARING TO PRESENT
EVIDENCE AND CROSS-EXAMINE
WITNESSES.
SOME OF THE ISSUES THAT WERE IN
THE DIS WERE SIMPLY NEVER
RESPONDED TO NO MATTER HOW MANY
TIMES WE BROUGHT THEM UP WITH
EXPERTS.
ALSO THE WAY THE LAW WORKS, EIS
IS NOT A SUBSTITUTE AND DOES NOT
DETERMINE PERMIT OUTCOMES.
THAT IS STATED IN THE TEXT OF
THE RULE ITSELF, AND THERE HAVE
BEEN SEVERAL CASES HOLDING AS
MUCH.
IF DNR AND POLYMET WERE TO HAVE
THEIR WAY AND 93.483 WAS
INTERPRETED TO REQUIRE THAT THE
EVIDENCE BE NEW, NOT ONLY WOULD
THEY BE WRITING SOME THING INTO
THE STATUTE, QUALIFICATIONS THAT
AREN'T THEY ARE, BUT ANY NEW
PERMIT TO MINE REQUIRES EIS THEY
WOULD BE PENALIZING ANY MEMBER
OF THE PUBLIC WHO PARTICIPATED
IN THAT MANDATORY EIS PROCESS.
THERE IS A SEPARATE NEED FOR A
CONTESTED CASE HEARING.
>> ISN'T THE PRACTICAL EFFECT OF
YOUR POSITION HERE THAT IN ANY
KIND -- A CONTESTED CASE HEARING
IS GOING TO BECOME A MATTER OF
ROUTINE GRANT IF A REQUEST IS
MADE.
AS A PRACTICAL MATTER.
ISN'T THAT WHERE WE WIND UP?
>> RESPECTFULLY, YOUR HONOR,
THAT IS NOT THE CASE.
THE SAME INTERPRETATION OF
REASONABLE BASIS FOR A CONTESTED
CASE, A REASONABLE BASIS
UNDERLYING DISPUTED MATERIAL
FACTS WAS ADOPTED BY THE COURT
OF APPEALS AND RESPONDENTS URGE
TODAY WAS ADOPTED IN 2004 IN THE
OWATONNA CASE.
WITH A RULE THAT HAD VERY
SIMILAR LANGUAGE ABOUT
INTRODUCTION OF INFORMATION IN
ORDER TO RESOLVE DISPUTED FACTS.
THERE HAVE BEEN NO FLOODGATES,
THEY HAVEN'T BEEN OPENED.
EVEN IF THERE WERE, IT'S
RESPONDENTS POSITION THAT THAT
WOULD BE UP TO THE LEGISLATURE
TO CORRECT BY AMENDING THEIR
STATUTE.
BUT IT'S BEFORE THE COURT IS A
STATUTE THAT DEFINES REASONABLE
BASIS ON THE BASIS OF
INFORMATION TO RESOLVE DISPUTED
FACTS.
>> I THINK THAT ANSWERS MY
QUESTION.
I'M DONE, THANK YOU.
>> JUSTICE HUDSON?
>> COUNSEL, YOUR POSITION,
APPELLANTS SAY IT SEEMS TO
COLLAPSE IF YOU WILL.
IT SEEMS TO COLLAPSE 3A1 WITH
3A3, YOU ALREADY HAVE TO FIND
THAT THERE'S MATERIAL ISSUE OF
FACT AND DISPUTE.
AND SO IT DOES SEEM THAT 3A1 AND
383 AND UP GETTING COLLAPSED
TOGETHER SO THAT YOU HAVE AS
JUSTICE ANDERSON INDICATED
ESSENTIALLY WHENEVER A
CONTESTED CASE HEARING WILL BE
REQUIRED WHENEVER THERE IS A
GENUINE ISSUE OF MATERIAL FACT
AT STAKE, WHEN THERE'S COMPETENT
DISPUTED MATERIAL FACTS.
IT JUST STRIKES ME THAT THAT
CAN'T BE.
THERE HAS TO BE MORE, AND IT
SEEMS TO ME SUBDIVISION THREE
REQUIRES THAT THERE BE MORE.
SO YOUR RESPONSE TO THAT, THAT
IT DOES SEEM TO COLLAPSE THE
TWO.
>> YOUR HONOR, THAT IF SHE WAS
ACTUALLY ADDRESSED BY THIS COURT
IN 1990.
IN THAT CASE, THE COURT SAID
THERE NEEDED TO BE SOME EVIDENCE
CONTRARY TO THE POSITION TAKEN
BY THE AGENCY.
AND THE COURT SAID JUST THE FACT
THAT THERE IS A DISPUTED
MATERIAL FACT ISSUE IN THEORY IS
NOT ENOUGH TO REQUIRE A
CONTESTED CASE.
THE COURT IDENTIFIED THAT IT
COULD BE EVIDENCE, IT COULD BE
EXPERTS, IT COULD BE CONVINCING
AUTHORITY BUT THERE HAD TO BE
SOMETHING ON WHICH AN
ADMINISTRATIVE LAW JUDGE WOULD
FIND FINDINGS OF FACT THAT COULD
BE SUBJECT TO THE COMMISSION'S
REVIEW AND COURT REVIEW.
SO THAT ISSUE, YOUR HONOR, I
BELIEVE YOU ARE CORRECT, IT'S
NOT JUST THAT THERE IS A
THEORETICAL DISPUTE, THERE HAS
TO BE EVIDENCE, EXPERTS, AND
AUTHORITY TO PROVIDE A
REASONABLE BASIS SO THAT THEY
WOULD BE AN INTRODUCTION OF
INFORMATION TO HELP RESOLVE
THESE DISPUTED FACTS.
>> COUNSEL, I'M NOT SURE, IT
SEEMS TO ME YOU ARE TAKING
AMENDMENT 4 OUT OF CONTEXT IN
TERMS OF WHAT WE REQUIRED THERE
TO BE SUBSTANTIAL EVIDENCE OF.
ULTIMATELY, WHAT WE SAID IS THAT
BECAUSE THE PETITIONER'S FAILED
TO PRODUCE ANY OF THOSE THINGS,
NOT THAT IF YOU DO YOU
AUTOMATICALLY GET A CONTESTED
CASE HEARING.
BUT BECAUSE THOSE THINGS WERE
NOT THERE, THEY COULD NOT SHOW
THAT A CONTESTED CASE HEARING
WOULD AID THE AGENCY.
THERE'S STILL THE REVIEW FOR
SUBSTANTIAL EVIDENCE, YOU LOOK
AT THE EVIDENCE AS A WHOLE.
YOUR RESPONSE.
YOUR THOUGHTS ON THAT.
>> YOUR HONOR, TWO THINGS: FIRST
OF ALL, THE RULE BEFORE THE
COURT IN AMENDMENT NUMBER 4 JUST
SAID THERE HAD TO BE REASONABLE
BASIS UNDERLYING DISPUTED FACTS.
SO THAT A CONTESTED CASE WOULD
AID THE AGENCY.
WHAT THE STATUTE NOW SAYS IS IT
DEFINES A REASONABLE BASIS AS
CONTESTED CASE WOULD ALLOW THE
INTRODUCTION OF INFORMATION THAT
WOULD ALLOW THE AGENCY TO
RESOLVE DISPUTED FACTS.
AND WHAT THE SOMETHING ELSE IS
IS THAT DNR IN THIS CASE DID NOT
TAKE ON AND ACTUALLY SHOW UP OR
EXPERTS WERE IRRELEVANT OR THEY
WERE UNQUALIFIED OR THAT OUR
EVIDENCE DIDN'T EXIST CARED WHAT
THEY DID IN THE CASE OF UPSTREAM
DAMAGE THEY SAID WE PREFER OUR
EXPERTS, WHEN THERE'S A CONCEPT
OF EXPERTS THAT'S A TIME A
CONTESTED CASE IS NECESSARY.
>> I GUESS I JUST WANT TO PUSH
BACK MORE, IT SEEMS TO ME THAT
THAT'S ALL OR PART OF THE
PERMITTING PROCESS AS THEY LOOK
AT ALL OF THE VARIOUS EXPERTS
AND WHO SAYS WHAT AND THERE'S
ALWAYS GOING TO BE A CONTEST.
ESPECIALLY IN A COMPLEX MINING
PROJECT LIKE THIS.
THERE'S ALWAYS GOING TO BE A
CONTEST BETWEEN VARIOUS EXPERTS.
WHAT IS REQUIRED, IT SEEMS TO ME
UNDER OUR SUBSTANTIAL EVIDENCE
TEST, IS THAT THERE BE
SUBSTANTIAL EVIDENCE FOR THE
DECISION THAT THE AGENCY MADE.
NOT THAT -- THERE'S GOING TO BE
COMPLEX, BUT THEY RESOLVE THOSE.
THEY WEIGHED THOSE, THEY TOOK
THE HARD LOOK I THINK AS DNR
POSITIONS.
AND THEY RESOLVE TO THOSE, AND
THERE IS SUBSTANTIAL EVIDENCE TO
DEMONSTRATE THAT.
THE FACT THAT YOU DISAGREE OR
THAT WE MIGHT DISAGREE WITH HOW
THAT CAME OUT, I WON'T SAY IS
IRRELEVANT BUT THAT'S NOT THE
TEST.
>> YOUR HONOR I WOULD SAY TWO
THINGS: ON SEVERAL OF THE
ISSUES, FOR EXAMPLE WATER LEGACY
NOTED THAT ALL THE EXPERTS
BELIEVE THAT THE RECAPTURE
SYSTEM WOULDN'T WORK.
ALL OF THE EXPERTS BELIEVE THAT
BENTONITE WAS UNPROVEN.
AND WITH THE STATUTE REQUIRES
UNDER 93.483 IS WHEN THERE ARE
THOSE DISPUTES, THAT THE
RESOLUTION OF THOSE DISPUTES IS
THROUGH A CONTESTED CASE HEARING
PROCESS.
>> COUNSEL, YOU ARE INTO
MS. COHEN'S TIME.
I'M GONNA JUST ASK YOU TO PAUSE
THERE AND I WILL TURN THE
MICROPHONE OVER TO MS. COHEN.
JUSTICE HUDSON, DO YOU HAVE ANY
OTHER QUESTIONS?
JUSTICE CHUTICH?
>> I WANTED TO ASK ON A SEPARATE
ISSUE THAT DNR SAYS THAT IT'S
CURRENTLY REVIEWING THE ONE CORE
ISSUE AND THE DAM FAILURE IN
BRAZIL.
AND I AM WONDERING, THEY SAY
THAT POLYMET SAYS THAT IT'S A
SEPARATE APPEAL CAN BE TAKEN
WHEN THOSE ISSUES ARE DECIDED.
SO DOESN'T A REVIEW OF THESE
ISSUES NOW AS ORDERED BY THE
COURT OF APPEALS RISK WASTING
JUDICIAL RESOURCES?
MAYBE THEY DNR WILL AGREE WITH
YOUR POSITION.
>> WE HAVE NO EVIDENCE THE DNR
IN FACT IS DOING THINGS IT SAYS
IT IS DOING.
IF DNR HAD OPENED UP AND
ADMINISTERED OF PROCESS, FOR
EXAMPLE TO AMEND THE PERMIT, TO
ADD GLENCORE AND WE WERE
PARTICIPATING IN THIS PROCESS
THEN WE WOULD HAVE SOME
ASSURANCE THAT DNR MIGHT BE
ACTUALLY LOOKING AT THIS ISSUE
AND WOULD BE CONSIDERING THE
EVIDENCE THAT WE AND OTHER
COMMENTERS MIGHT SUBMIT TO THE
ADMINISTRATIVE RECORD.
BUT WE HAVE NO ASSURANCE OF THAT
BECAUSE DNR HASN'T DONE THAT.
SIMILARLY WITH THE SITUATION, WE
SKED DNR TO RECONSIDER ITS
DECISION ON THE DAM SAFETY
PERMIT, THE DISASTER OCCURRED
JUST MONTHS AFTER THE PERMIT WAS
ISSUED AND WE DISCOVERED THAT
THE VERY SAME METHOD OF
EVALUATING THE SAFETY OF THAT
DAM HAD BEEN APPLIED ON THE POLY
POLYMET DAM, AND HAD FAILED TO
IDENTIFY THE PROBLEM AND WE
THOUGHT THAT WAS AN ADEQUATE
BASIS TO GO BACK AND TAKE A
SECOND LOOK AT THE GEOPHYSICAL
STUDIES THAT HAD BEEN DONE ON
THIS UPSTREAM DAM.
WHICH IS IN FACT VERY SIMILAR TO
THE BERNARDINO DAM.
DNR REFUSED TO DO THAT, DNR
DENIED OUR REQUEST FOR
RECONSIDERATION.
AND WE BROUGHT A MOTION IN FRONT
OF THE COURT OF APPEALS TO HAVE
THE MATTER REMANDED BACK TO DNR.
UNFORTUNATELY, THE COURT OF
APPEALS INTERPRETED 1467, THE
PROVISION WE BROUGHT THIS MOTION
UNDER, TO RESTRICT THE RECORD TO
AGAIN WHAT WAS SIMPLY BEFORE THE
AGENCY AND NOT THE NEW
INFORMATION.
I DON'T AGREE WITH THAT READING
OF THE STATUTE BUT THAT WAS
THEIR RULING.
BUT IN EFFECT, AND I THINK THIS
GETS TO JUSTICE McKEIG'S
QUESTION, IF THIS COURT DOES
REMANDED BACK FOR A CONTESTED
CASE HEARING IT IS NOT LIMITED
TO THE RECORD THAT WAS BEFORE
THE DNR.
IN 2017 AND 28 TEAM AND
MADE THESE DECISIONS.
THE RECORD THEN WILL BE OPENED
UP, THAT'S IN THE STATUTE ITSELF
AND 93.43.
THAT IS SPECIFIC, YOU ARE NOT
LIMITED TO WHAT YOU SUBMITTED IN
YOUR PETITION, YOU CAN SUBMIT
ADDITIONAL INFORMATION,
ADDITIONAL EXPERTS AND DNR AT
THAT TIME COULD CERTAINLY
CONSIDER NEW INFORMATION THAT
HAS COME TO LIGHT IN THE PAST
TWO YEARS.
THERE HAVE BEEN SOME VERY
SIGNIFICANT CHANGES THAT DNR
COULD TAKE CONSIDERATION OF.
>> LET ME ASK YOU ANOTHER
QUESTION, NOT RELATED TO THE
PERMIT TERM.
NOBODY HAS BRIEFED THE STRUCTURE
AND ADEQUACY OF THE FINANCIAL
ASSURANCE HERE.
AND WE TYPICALLY DON'T CONSIDER
ISSUES RAISED ONLY BY APPEAL.
WHY SHOULD WE DEPART FROM THAT
PRACTICE HERE?
>> I DON'T THINK WE ARE ASKING
THE COURT TO DEPART FROM ANY
PRACTICE, THERE ARE A HOST OF
ISSUES THAT COULD GO BACK AND
FRONT OF DNR.
AND THE FINANCIAL ASSURANCE IS
JUST ONE OF THOSE ISSUES.
WE CERTAINLY DID NOT HAVE ENOUGH
WORDS IN OUR BRIEF TO IDENTIFY
ALL THE ISSUES, WHICH ARE THE
DISPUTED ISSUES, WHAT WE ARE
GOING TO HEAR ON.
I THINK IT'S APPROPRIATE TO
INCLUDE IT ON THE BASIS OF THE
ARGUMENTS THAT WERE RAISED BY
OUR CLIENT GROUP IN THE PETITION
AND WERE PICKED UP BY THE GROUP
IN ITS BRIEF.
THAT INCLUDES THE BACK LOADING
OF THE FINANCIAL ASSURANCE.
AND THIS HAS BECOME MORE FRONT,
IN THE RECORD WE FIND A DOCUMENT
AND I CAN PROVIDE A CITATION
THAT INDICATES THAT POLYMET'S
FINANCIAL POSITION IS QUITE
TENUOUS.
IN FACT, IT ONLY JUSTIFIES AND
THIS IS AN INVESTOR DOCUMENT, A
CANADIAN POLY TECHNICAL REPORT
43.101.
DNR HAD ITS EXPERT LOOK AT THAT
TECHNICAL REPORT AND WHAT THAT
EXPERT DISCOVERED WAS THAT THE
FINANCIAL CONDITION THAT POLYMET
DESCRIBED IN THAT REPORT WAS
ESSENTIALLY A CHEAT.
POLYMET WAS ASSUMING AND NOT
REPORT THAT IT COULD MAKE
CHANGES TO ITS MINING PLAN.
AND SO, THE FINANCIAL ASSURANCE
IS JUST ONE OF THE ISSUES THAT
WE WOULD ASK DNR TO LOOK AT IN A
CONTESTED CASE HEARING.
ALONG WITH THE BENTONITE AND
UPSTREAM DAM AND WHETHER THAT
MEETS CURRENT ENVIRONMENTAL AND
ENGINEERING STANDARDS,
ET CETERA.
>> THANK YOU, CHIEF.
NO FURTHER QUESTIONS.
>> JUSTICE McKEIG?
>> YOU SAID UNDER 93.483 THAT IT
WOULD ALLOW FOR THE EXPANDED
RECORD.
CAN YOU TELL ME WHAT PROVISION
YOU ARE RELYING ON?
I'M LOOKING AT IT, ARE YOU
RELYING ON SUBDIVISION 5 UNDER
THE SCOPE OF HEARING?
>> YOUR HONOR, UNDER 93.43
SUBDIVISION 2, ITEM -- LIPSEY, A
PETITIONER IS NOT BOUND OR
LIMITED TO THE WITNESSES, MATERR
ESTIMATED TIME IDENTIFIED IN THE
PETITION IF THE REQUESTED
CONTESTED CASE IS GRANTED BY THE
COMMISSIONER.
AND THAT, I THINK IN COMBINATION
WITH THE COMMISSION'S ABILITY IN
THE NOTICE OF ORDERS FOR HEARING
TO ESTABLISH THE ISSUE, THIS
HEARING WILL ESSENTIALLY BE A DO
OVER.
WE CAN BRING EVIDENCE THAT
WASN'T IN OUR PETITIONS, DNR ITS
EXPERTS ARE GOING TO TESTIFY,
THAT WILL BE NEW EVIDENCE.
OUR EXPERTS WILL HAVE TO
TESTIFY, THAT WILL BE NEW
EVIDENCE.
THAT'S HOW A CONTESTED CASE
HEARING WORKS, YOUR HONOR.
PEOPLE WILL BRING ALL THE
EVIDENCE THEY HAVE TWO THAT
HEARING, A COHERENT, ROBUST, AND
ORGANIZED RECORD WILL BE CREATED
BY THE ALJ.
AND THEN THE AGENCY WILL HAVE TO
LOOK AT THAT RECORD IN ITS
ENTIRETY AND MAKE A DECISION.
AND THIS WILL AID THIS COURT AND
OTHER APPELLATE COURTS IN MAKING
DECISIONS ABOUT WHETHER THE
DECISION WAS SUPPORTED BY
SUBSTANTIAL EVIDENCE OR WHETHER
IT WAS CONTRARY TO THAT EVIDENCE
AND THEREFORE ARBITRARY.
>> NOTHING FURTHER, THANK YOU
CHIEF.
>> JUSTICE MOORE?
>> AS A I UNDERSTAND YOUR
ARGUMENT, UNDER SUBDIVISION 5 OF
93.480 THE COMMISSIONER WOULD
HAVE DISCRETION TO IDENTIFY THE
ISSUES TO BE RESOLVED IF THE
COURT REMANDED THE CASE FOR
HEARING, IS THAT CORRECT?
>> THAT'S CORRECT.
>> DOESN'T DECOMMISSION ALSO
HAVE THE DISCRETION TO DETERMINE
WHETHER THE CONTESTED CASE
WOULD AID IN DECIDING A
PARTICULAR DISPUTED ISSUE OF
FACT?
>> YOUR HONOR, THE STATUTE
PROVIDES THAT THE CRITERIA IS A
REASONABLE BASIS.
IN ORDER TO BE -- IN THIS
COURT'S WORDS, ENTITLED TO A
CONTESTED CASE HEARING, WE HAVE
TO SHOW THAT THERE IS A MATERIAL
DISPUTED ISSUE AND THAT WE HAVE
EXPERTS AND EVIDENCE ON OUR SIDE
SO THAT -- THAT'S THE WORDS OF
THE STATUES -- THAT DNR AND
POLYMET WANT THIS COURT TO READ
OUT, THAT IT WILL AID THE
COMMISSIONER.
THIS REPRESENTS A LEGISLATIVE
DETERMINATION OF WHAT WOULD HELP
THE COMMISSIONER.
THE COMMISSIONER WILL BE AIDED
IF THERE IS THIS REASONABLE
BASIS.
AND THEN ITS FINDING, IN ITS
COMPENDIOUS FINDINGS, DNR NEVER
ONCE QUESTIONED THE
QUALIFICATIONS OF OUR EXPERTS,
THE CONFIDENCE OF THE STUDIES,
THAT THEY DID SUBMIT IN THE
RECORD.
THAT STUDY ISN'T THERE, BUT OUR
EXPERT SUBMITTED IN SUPPORT OF A
REPORT AND RESUBMITTED IN
SUPPORT OF REPETITION NUMEROUS
STUDIES THAT DNR NEVER
QUESTIONED.
SO THAT IS THE SUBSTANTIAL
EVIDENCE QUESTION ASSOCIATED
WITH 93.483.
AND ON THAT QUESTION, YOU DO NOT
FIND THE EVIDENCE, THE
SUBSTANTIAL EVIDENCE THAT DNR
NEEDED TO ELUDE A CONTESTED CASE
HERE.
THIS IS AN OBJECTIVE STANDARD,
DNR ONCE THIS COURT TO TURN INTO
A SUBJECTIVE STANDARD THAT IS
ESSENTIALLY SPECULATIVE.
>> COUNSEL, YOU WERE INTO
MISS RAY-HODGE'S TIME.
RAY-HODGE, YOU HAVE THE FLOOR.
>> THANK YOU.
THE BAND ASSERTS THAT THIS COURT
CAN ALSO AFFIRM ON ALTERNATIVE
GROUNDS THAT THE PERMITS CONTAIN
REVERSIBLE LEGAL ERRORS BECAUSE
THEY VIOLATE SPECIFIC PROVISIONS
OF THE MINING AND DAM SAFETY
RULES.
FOR EXAMPLE, THE PERMIT TO MINE
VIOLATES THE REACTIVE STORAGE
WASTE REQUIREMENT AS WELL AS A
CLOSURE AND POSTCLOSURE
REQUIREMENTS REQUIREMENTS OF THE
RECLAMATION RULES IN THE MINING
REGULATIONS.
IN ADDITION, THE TAILINGS DAM
VIOLATES THE TERMINATION PLAN
AND ALL THREE PERMITS OTHERWISE
VIOLATE THE RULES BECAUSE THEY
WERE ISSUED WITHOUT THE REQUIRED
INFORMATION AS PROVIDED IN BOTH
THE MINING RULES AND DAM SAFETY
RULES.
FOR EXAMPLE, WITH RESPECT TO 60
1:30 2.2200 SUBPART TO BE, THAT
REQUIRES THAT MINE WASTE BE
STORED SO THAT IT IS NO LONGER
REACTIVE COURSE OF PREVENT
SUBSTANTIALLY ALL WATER MOVING
THROUGH THE WAIST, THE FIRST
OPTION ISN'T MEANT HERE.
IT'S FACTUAL ISSUES ASIDE,
BECAUSE POLYMET'S OWN MODELING
SHOWS THAT EVEN WITH THE
BENTONITE AMENDMENT ON THE POND
BOTTOM THE REACTIVE WASTE WILL
REMAIN REACTIVE FOR AT LEAST 200
YEARS.
IN ADDITION, THE SECOND ELEMENT
ISN'T MEANT BECAUSE THE BASIN IS
ACTUALLY DESIGNED TO CONTINUALLY
PUMP HUGE AMOUNT OF WATER INTO
THE BASIN AND LIAM'S OF GALLONS
OF WATER WILL CONSTANTLY SEEP
INTO AND THROUGH THE
REACTIVE MIND WASTE DURING AND
AFTER OPERATIONS.
THAT SEEPAGE WATER MUST BE
MECHANICALLY TREATED BEFORE IT'S
RELEASED INTO THE ENVIRONMENT.
OR RECYCLED BACK IN TO THE
TAILINGS BASE IN PERPETUITY.
IN FACT, THE SONAR GOT A SIMILAR
APPROACH WHICH REQUIRES WATER TO
BE PERPETUALLY TREATED DUE TO
THE POTENTIAL FOR THE LONG-TERM
FAILURE WHEN THE OPERATOR IS NO
LONGER PRESENT.
AND INSTEAD DNR SPECIFICALLY
CHOSE TO REQUIRE ONE OF THE TWO
OPTIONS IN THIS RULE TO BE MET,
WHICH ISN'T HAPPENING HERE.
IN ADDITION, THE DAM SAFETY
PERMIT FOR THE TAILINGS BASIN
REQUIRES THE TERMINATION PLAN
THAT PROVIDES DISPOSAL OF ALL
POND AND CHANNELED WATERS.
BUT BECAUSE HERE, POLYMET AND
DNR BOTH ACKNOWLEDGE THE
TAILINGS BASIN POND MUST EXIST
FOR AT LEAST 200 YEARS OR
FOREVER, THAT RULE CAN ACTUALLY
NEVER BE MET.
EFFECTIVELY NULLIFYING IT, WHICH
DNR DOES NOT HAVE THE AUTHORITY
TO DO.
IT'S IMPORTANT TO UNDERSTAND
THAT DNR DEVELOPED THE MINING
RULES AS SHOWN IN THE SONAR TO
ADDRESS KNOWN CONCERNS AND
PROBLEMS OVER NONFERROUS MINING
AND BENEFIT FROM LESSONS LEARNED
IN THE IRON ORE INDUSTRY AND A
CENTRAL ELEMENTS OF THOSE RULES
IS TO REQUIRE A BASELINE OF
COMPLETE INFORMATION AND
EXPLANATIONS ABOUT A PROJECT'S
DESIGN, OPERATIONS, AND ABILITY
TO MEET THE RECLAMATION AND
CLOSURE REQUIREMENTS AT THE
OUTSET IN ORDER TO PROTECT THE
STATE AND ITS NATURAL RESOURCES
LONG-TERM.
BUT BY APPROVING THESE PERMITS
THAT ARE BASED IN LARGE PART ON
SPECIAL CONDITIONS, WHICH
REQUIRE A COMPLETE AND FINAL
PLANS AFTER PERMIT ISSUANCE, THE
MINING RULES HAVE BEEN VIOLATED.
IN ADDITION, THE DAM SAFETY
RULES, SPECIFICALLY REQUIRE AND
6515.0390 THAT A PERMITTEE
SUBMIT FINAL DESIGN FOR ALL NEW
DAMS.
THOSE FINAL DESIGNS HAVE NOT
BEEN COMPLETED AND WERE NOT
SUBMITTED AT THE TIME OF PERMIT
ISSUANCE FOR EITHER THE TAILINGS
BASIN OR THE HR F DAM, INCLUDING
FOR IMPORTANT ASPECTS LIKE THE
BENTONITE AMENDMENT THAT WAS
DISCUSSED EARLIER.
WHICH IS A CLEAR ERROR OF THE
RULES.
AND FOR THESE REASONS, WE
BELIEVE THAT THE COURT HAS THE
AUTHORITY UNDER THE EDEN HOUSE
RULE TO AFFIRM THE COURT OF
APPEALS ON ALTERNATIVE GROUNDS
THAT THE PERMITS CONTAIN
REVERSIBLE LEGAL ERRORS BASED ON
VIOLATIONS OF THE DAM SAFETY AND
PERMIT TO MINE RULES.
THANK YOU.
>> THANK YOU, COUNSEL.
WE WILL TURN NOW TO REBUTTAL AND
COUNSEL ARE SPLITTING TIME, WE
WILL HEAR FROM MR. KATCHEN FIRST
FOR 5 MINUTES.
>> THANK YOU, YOUR HONOR.
I JUST WANT TO START BY
EMPHASIZING THAT DNR POSSESSES
THE TECHNICAL AND SCIENTIFIC
EXPERTISE TO ADDRESS ALL THE
ISSUES THAT HAVE BEEN
IDENTIFIED.
DNR'S JUDGMENTS ARE ENTITLED TO
AN ASSUMPTION OF CORRECTNESS AND
WHEN DNR DETERMINES MORE PROCESS
IS NOT NEEDED TO ADDRESS A
TECHNICAL ISSUE, THESE FINDINGS
SHOULD BE NO DIFFERENT.
THE ISSUE REALLY IS WHY THE DNR
DENIED -- THERE'S BEEN A LOT OF
DISCUSSION BUT SOME ISSUES, THE
DISPUTES WERE RESOLVED.
FOR INSTANCE, ON SEEPAGE CAPTURE
THE EXPERTS THAT MCEA BROUGHT
FORTH SO THAT WE HAVE A CONCERN
THAT THE CUTOFF WILL NOT BE KEY
TO BEDROCK, A LOT MORE SEEPAGE
WILL GO THROUGH.
DNR MADE CLEAR IN THE CONDITIONS
AND CONDITION 55 THAT THE CUT
OFF HAS TO BE KEYED TO BEDROCK.
AGAIN, THERE EXPERTS TALKED
ABOUT NEEDING TO CREATE A MORE
ROBUST TESTING PROTOCOL, PILOT
TESTING FOR BENTONITE AND DNR
DID THIS.
THEY ARE EXPERTS AND OUR EXPERTS
REQUIRED MORE ROBUST MONITORING
ON A WHOLE HOST OF ISSUES, AND
THE DNR AND POST MANY CONDITIONS
OR CLARIFIED MANY CONDITIONS TO
ENSURE THAT MORE MONITORING AND
INSPECTION WAS IN PLACE, ONE
OTHER ISSUE WAS THE PEAKS UNDER
THE BUTTRESS FOUNDATION, SO DNR
REQUIRED POLYMET TO REMOVE IT,
ON ISSUE AFTER ISSUE DNR WROTE
THE CONCERNS AND ADDRESS THEM
AND ALL OF THIS IS SEPARATE FROM
THE FINDINGS.
>> COUNSEL, IF I MAY, JUST A
COUPLE OF QUESTIONS FOR
CLARIFICATION.
MS. MACCABEE INDICATED THAT SOME
OF THE ENVIRONMENTAL AGENCIES OR
AT LEAST THE ONE SHE IS
REPRESENTING HAD NO OPPORTUNITY.
I HOPE I'M NOT MISCHARACTERIZING
WHEN I SUMMARIZE WHAT I HEARD,
BUT I THINK SHE SAID.
TO PARTICIPATE IN THE FINAL
ENVIRONMENTAL IMPACT STUDY.
THEY HAD LIMITED OPPORTUNITY TO
PARTICIPATE IN THAT.
WHAT IS YOUR RESPONSE TO THAT?
>> WHILE I THINK SHE SAID THEY
DIDN'T HAVE AN OPPORTUNITY TO
CROSS-EXAMINE WITNESSES.
THEY DID AS WE LAY OUT AND
PERHAPS TOO MUCH DETAIL IN OUR
BRIEFING, THEY PARTICIPATED
EARLY AND OFTEN IN THE
ENVIRONMENTAL PROCESS AND A LOT
OF THE SAME EXPERTS AND REPORTS
AND CONCERNS WERE RAISED INTO
INTO2012 AND RECYCLED IN THEIR
PETITIONS, THEY PARTICIPATED,
RAISED ISSUES, DNR ADDRESSED
THEM AND CONTINUES TO ADDRESS
THEM.
THAT TYPE OF REVIEWING IN
PARTICULAR WHEN A PETITIONER HAS
PARTICIPATED IN THE
ENVIRONMENTAL REVIEW PROCESS AND
THE PERMIT PROCESS MEANS THAT
THE AGENCY'S DECISION IS
REASONABLE.
>> THANK YOU FOR THAT
CLARIFICATION.
QUESTION ON POTENTIAL
DISPOSITION, LET'S ASSUME FOR A
MOMENT THAT WE DISAGREE WITH YOU
IN TERMS OF -- WE AGREE WITH
YOUR TEST BUT WE DISAGREE WITH
YOU DEMONSTRATED SUBSTANTIAL
EVIDENCE WITH RESPECT TO ONE OF
THE ISSUES.
I'M THINKING IN PARTICULAR THE
BENTONITE AMENDMENT.
LET'S SAY WE DISAGREE WITH YOU
ON THAT.
WHAT, IN YOUR MIND, IS THE
PROPER DISPOSITION?
WHAT I'M GETTING AT IS IT SEEMS
TO ME AT SOME POINT INEVITABLY
AN APPELLATE COURT IS GOING TO
HAVE TO DECIDE THE UNDERLYING
PERMIT ISSUE.
AND SO, IS THE RESOLUTION THAT
WE SEND IT BACK FOR THE COURT OF
APPEALS TO CONSIDER THE LEGAL
CHALLENGES TO THE DECISION TO
ISSUE THE PERMIT TO MINE AND THE
DAM SAFETY PERMITS?
OR SHOULD THE COURT OF APPEALS,
OR SHOULD WE HAVE SOME SORT OF
SIMULTANEOUS PROCEEDING?
IN OTHER WORDS, WE SEND IT BACK
FOR YOU, DNR, TO HOLD A
CONTESTED CASE HEARING ON THE
BENTONITE AMENDMENT OR OTHER
MATTERS AND LET THE COURT OF
APPEALS ALSO SIMULTANEOUSLY BE
CONSIDERING THE UNDERLYING LEGAL
CHALLENGES OR DOES THAT MAKE A
BIG MESS.
I'M JUST GETTING TRYING TO GET M
COUNSEL, WHAT DOES THAT LOOK
LIKE IN TERMS OF DISPOSITION?
>> IF THE COURT DETERMINES THAT
THERE IS SUBSTANTIAL EVIDENCE,
THAN IT NEEDS TO BE REMANDED TO
THE AGENCY.
IT WOULD CREATE A BIG MESS,
WHILE WE ARE ADDRESSING
PARTICULAR ISSUES DURING THE
CONTESTED CASE HEARING RELATED
TO BENTONITE, THAT ISSUE WOULD
BE ON APPEAL ON THE UNDERLYING
LEGAL ISSUE.
THE ENGINEERING CONTROLS IN
PLACE TO DEAL WITH THE REACTIVE
MIND WASTE RATIFIES REGULATORY
REQUIREMENTS.
>> I'M SORRY, CHIEF.
YOU WOULDN'T WANT TO SEE ANY
KIND OF SIMULTANEOUS MATTER?
>> OFF-THE-CUFF, NO.
>> THANK YOU CHIEF, I HAVE ONE
OTHER QUESTION BUT I CAN ASK IT
TO MR. JOHNSON.
>> LET'S GO TO MR. JOHNSON.
GO AHEAD, JUSTICE HUDSON.
>> I'M WONDERING -- WELL, IT'S
MORE OF A QUESTION FOR
MR. KATCHEN.
THIS IDEA THAT IF THERE WERE A
REMAND THAT THE ENTIRE RECORD
WOULD BE OPENED UP FOR THE
RESPONDENTS TO PRESENT ANY KIND
OF NEW INFORMATION.
YOUR THOUGHTS ON THAT,
MR. JOHNSON?
>> MY THOUGHT IS THAT IS TRUE
THAT SUBDIVISION 2 OF 93.43 SAYS
THE PETITIONER IS NOT BOUND TO
THE WITNESSES IN HIS PETITION,
IT DOESN'T SAY ANYTHING ABOUT
THE PETITIONER BEING BOUND TO
EVIDENCE THAT'S AVAILABLE AT THE
TIME OF THE AGENCY'S DECISION.
SO WHILE WE THINK THAT A REMAND
WOULD BE INAPPROPRIATE BECAUSE
EVERYTHING THAT THE DNR DID WAS
SUPPORTED WITH MORE THAN
SUBSTANTIAL EVIDENCE.
IF THERE WERE SOME SORT OF
REMAND, I GUESS I WOULD RELY ON
SUBDIVISION 5 AND LET DNR DECIDE
THE SCOPE AND WHAT EVIDENCE
WOULD BE AVAILABLE TO US.
BUT ADMINISTRATIVE LAW
PRINCIPLES, THE AGENCY'S
DECISION HAS TO BE JUDGED BY THE
EVIDENCE THAT WAS BEFORE IT WHEN
IT MADE HIS DECISION.
>> THANK YOU.
AND ONE LESS QUESTION, COUNSEL,
WHAT DO YOU -- WHAT IS YOUR READ
ON THE COURT OF APPEALS DECISION
IN OWATONNA AND HOW DOES THAT
FIT WITH -- IF IT DOES -- OUR
DECISION IN NSP AND OTHER CASES?
>> SURE, THE DECISION FOR
OWATONNA CLEARLY AND RELATORS
ADMIT THIS, OVERTURNED THE COURT
OF APPEALS DECISION EXACTLY LIKE
THE COURT OF APPEALS DECISION IN
THIS CASE.
THE PETITIONERS HAD PRESENTED
NEW EVIDENCE, THE PETITIONERS
HAD EXPERTS, AND THE COURT OF
APPEALS SAID THAT'S ENOUGH.
THEN THE SUPREME COURT SAID IT'S
NOT ENOUGH.
THE AGENCY GETS TO DECIDE IF WE
HAVE A CONTESTED CASE HEARING.
OWATONNA, AND MY VIEW, IS A
DIFFICULT TO DISCERN DECISION.
IN ONE PLACE SAYS THERE IS NO
SUBSTANTIAL EVIDENCE TO SUPPORT
THE DECISION, IN ANOTHER IT
SEEMS TO ADOPT A STANDARD VERY
MUCH LIKE THE ONE THAT THEY
OVERTURNED.
MY VIEW IS TO THE EXTENT ANYONE
READS OWATONNA TO SAY MATERIAL
DISPUTE OF FACT RESULTS
AUTOMATICALLY IN A CONTESTED
CASE HEARING, THAT WOULD BE
INCONSISTENT WITH BOTH 93.483
AND THE COURT'S DECISION.
>> AND COUNSEL, DOES NOT MATTER
IF HERE AS THE ENVIRONMENTAL
ORGANIZATION SAY THAT THE
CREDIBILITY OF THEIR EXPERTS WAS
NEVER QUESTIONED BY THE DNR.
>> I DON'T THINK THAT'S A
RELEVANT CONSIDERATION.
I MEAN, CREDIBILITY OF EXPERTS
DOESN'T NECESSARILY SAY ANYTHING
ABOUT WHETHER THE EXPERT IS
RIGHT OR WRONG ABOUT A FACTUAL
DISPUTE.
CREDIBLE EXPERTS CAN DISAGREE
ABOUT THINGS AND THAT'S EXACTLY
WHY YOU HAVE AN AGENCY, A
NEUTRAL EXPERT DECISION-MAKER TO
RESOLVE THOSE DISPUTES.
NUMEROUS DECISIONS OF THIS COURT
SAY THAT IF THE AGENCY THAT GETS
TO DETERMINE THE CREDIBILITY OF
EXPERTS, THAT THE AGENCY GETS TO
WEIGH THE FACTS THAT ARE
PRESENTED BY EXPERTS, AND I'M
THINKING IN PARTICULAR ABOUT THE
SURPLUS CASE THAT WE CITED
THROUGHOUT THE BRIEFING.
SO COME UP WE DON'T NEED TO HAVE
INCREDIBLE EXPERTS, WE JUST HAVE
TO HAVE EXPERTS THAT THE AGENCY
RESOLVE.
NOBODY HAS TO DECIDE WHETHER
EXPERTS WERE LYING, OR WHETHER
THEY JUST WEREN'T CORRECT.
IF THAT'S WHAT THE DNR DECIDED
IN THIS CASE.
>> COUNSEL, HOW DO YOU RESPOND
TO THE ARGUMENTS MADE BY WATER
LEGACY THAT A CONTESTED CASE
HEARING WOULD ADVANCE IMPORTANT
PUBLIC INTERESTS AND
TRANSPARENCY LEGITIMACY AND
FRANKLY THE CONFIDENCE AND
APPROPRIATENESS OF THE FINAL
DECISION THAT WILL AFFECT A LOT
OF PEOPLE?
>> MY RESPONSE IS IN A LOT OF
WAYS, IF YOU ADOPT THE OTHER
SIDE'S VIEW OF THIS, IT ACTUALLY
UNDERMINES CONFIDENCE.
BECAUSE THE PUBLIC OFTEN HAVE
CONFIDENCE IN WHAT THE DNR DOES
AS A AGENCY, A NEUTRAL
DECISION-MAKER.
ADDING PROCESS JUST FOR THE SAKE
OF PROCESS BECAUSE THE OTHER
SIDE IS UNHAPPY WITH THE DNR'S
DECISION AND THEIR BRIEFS ARE
CLEAR ON THIS FALLS INTO
QUESTION DNR'S CREDIBILITY.
I THINK THE CREDIBILITY QUESTION
REALLY SHOULD BE ASKED IN THE
CONTEXT OF ADMINISTERING OF LAW,
WHICH SAYS THE DNR'S DECISIONS
ARE PRESUMED TO BE CORRECT, THE
DNR'S DECISIONS ARE MADE
REGULARLY IN PROCESS AND THE
DNR'S EXPERTS HAVE TO BE TRUSTED
TRUSTED.
>> JUSTICE HUDSON, DID YOU HAVE
A QUESTION?
>> I DID, JUST ONE LAST
QUESTION.
MR. JOHNSON, BACK ON THE
BENTONITE AMENDMENT AND THIS
STUDY THAT IS CITED IN THE PAGE
85 OF THE FINAL EIS.
IT SEEMS LIKE BOTH DNR AND YOUR
CLIENT'S PUT A LOT OF HEAVY
RELIANCE, IS THAT THE MAIN
STUDY?
IT SOUNDS LIKE YOU FOLKS ARE
GOING TO GET TO US, YOU THOUGHT
IT WAS IN THE RECORD BUT IT DOES
NOT APPEAR TO BE THERE.
OR YOU THOUGHT IT HAVE BEEN
TRANSMITTED TO US BUT WE DON'T
HAVE IT.
>> I'M NOT QUITE SURE OF THE
STATUS OF THE RECORD, MY
UNDERSTANDING IS THAT IT'S A
PUBLISHED STUDY SO THAT IF THE
PUBLIC WANTS TO BE INFORMED OF
THIS CASE, I THINK IT'S COMMON
PRACTICE IF IT'S NOT IN THE
RECORD THAT THE AGENCY WILL GIVE
A PUBLISHED STUDY AND PEOPLE CAN
GO LOOK AT IT.
MAYBE THEY SHOULD HAVE PUT IT IN
THE RECORD AND MAYBE IT IS.
I DON'T THINK ANYONE DISPUTES,
INCLUDING THE OTHER SIDE, THAT
THE RESULTS OF THE STUDY SHOW A
90% REDUCTION IN OBSERVATION
WITH VERY LITTLE BENTONITE.
BENTONITE IS NOT JUST RELYING ON
THIS STUDY, IT'S ESSENTIALLY A
WIDER ABSORBING CLAY THAT HAS
BEEN USED FOR DECADES IN NUMEROS
DIFFERENT APPLICATIONS, I
THINK IN ADDITION TO THIS STUDY
WHICH IS VERY SPECIFIC TO THE
KIND OF APPLICATION USED HERE,
DNR HAS WIDE EXPERTISE IN THE
USE OF BENTONITE IN NUMEROUS
DIFFERENT APPLICATIONS.
EVERYTHING FROM LINERS TO MINING
APPLICATIONS, ALL SORTS OF
DIFFERENT THINGS SO DNR IS
RELYING AT LEAST IN PART ON
EXPERIENCE AND EXPERTISE.
THAT'S EXACTLY WHAT IS ENTITLED
TO DO UNDER CASES LIKE MCEA AND
THINGS LIKE THAT.
>> THANK YOU COUNSEL.
THANKS TO ALL COUNSEL FOR THE
HELP THAT YOU PROVIDED TO THE
COURT IN THIS MATTER.
THIS CASE IS SUBMITTED, WE WILL
ISSUE AN OPINION IN DUE COURSE.
COUNSEL IN THE FIRST CASE, YOU
ARE FREE TO EXIT THE BUYBACKS
NOW WITH A THANKS FROM THE