Christenson v. Crowned Ridge Wind, LLC, 29334-a-MES

CourtSupreme Court of South Dakota
Writing for the CourtSALTER, JUSTICE
PartiesAMBER KAYE CHRISTENSON, ALLEN ROBISH, KRISTI MOGEN, and PATRICK LYNCH, Appellants, v. CROWNED RIDGE WIND, LLC, and SOUTH DAKOTA PUBLIC UTILITIES COMMISSION, Appellees.
Docket Number29334-a-MES
Decision Date03 August 2022

2022 S.D. 45

AMBER KAYE CHRISTENSON, ALLEN ROBISH, KRISTI MOGEN, and PATRICK LYNCH, Appellants,
v.

CROWNED RIDGE WIND, LLC, and SOUTH DAKOTA PUBLIC UTILITIES COMMISSION, Appellees.

No. 29334-a-MES

Supreme Court of South Dakota

August 3, 2022


CONSIDERED ON BRIEFS MARCH 23, 2021

APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA THE HONORABLE CARMEN MEANS Judge

R. SHAWN TORNOW Sioux Falls, South Dakota Attorney for appellants.

MILES F. SCHUMACHER of Lynn Jackson Shultz & Lebrun P.C. Sioux Falls, South Dakota BRIAN J. MURPHY of NextEra Energy Resources, LLC Juno Beach, Florida Attorneys for appellee Crowned Ridge Wind, LLC.

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AMANDA M. REISS KRISTEN N. EDWARDS of South Dakota Pubic Utilities Commission Attorneys for appellee South Dakota Public Utilities Commisssion.

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SALTER, JUSTICE

[¶1.] Crowned Ridge Wind, LLC (Crowned Ridge) applied to the South Dakota Public Utilities Commission (the PUC) for a permit to construct a wind energy farm in northeast South Dakota. Several individuals impacted by the potential wind farm intervened and objected to Crowned Ridge's application. After conducting an evidentiary hearing, the PUC issued a written decision approving the application. The intervenors appealed to the circuit court, which affirmed the PUC's decision. Two of the intervenors now appeal to this Court. We affirm.

Facts and Procedural History

[¶2.] Crowned Ridge is a wind energy company that sought to construct a wind farm comprised of up to 130 wind turbines capable of producing 300 megawatts of electricity in Codington and Grant Counties (the Project). Given its size, the Project is classified as a "wind energy facility" and was required to obtain a permit from the PUC before beginning construction. See SDCL 49-41B-2(13) (defining "[w]ind energy facility" as a facility, which, among other things, is "capable of generation of one hundred megawatts or more of electricity"); SDCL 49-41B-4 (stating siting permit requirement).

[¶3.] Amber Christenson and Allen Robish, among other area residents, sought and obtained party status as intervenors (the Intervenors) in order to oppose Crowned Ridge's application.[1] Their opposition triggered the PUC's contested

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hearing procedures, including the requirement that Crowned Ridge file written testimony in support of its application in advance of the hearing. See ARSD 20:10:22:39 (stating in part, "Upon the filing of an application pursuant to SDCL 49-41B-11, an applicant shall also file all data, exhibits, and related testimony which the applicant intends to submit in support of its application."). [¶4.] Crowned Ridge filed, or "pre-filed" as it is commonly known, the testimony of a number of witnesses, including Jay Haley who conducted sound and shadow flicker[2] studies in connection with the Project. Haley's testimony and attached studies were supplemented during the pendency of the administrative case.

[¶5.] Using this pre-filed testimony procedure, Crowned Ridge also filed the written testimony of Kimberly Wells, Ph.D., who provided her findings and expert opinions regarding the Project's impact on the environment, to include its effect on natural resources as well as cultural implications. However, as the dates for the evidentiary hearing drew closer, Crowned Ridge learned that Dr. Wells would be unable to attend and testify in person. As a result, Crowned Ridge indicated it would call Sarah Sappington, who is a colleague of Dr. Wells, to testify about the environmental impact of the Project.

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[¶6.] Sappington had previously received a bachelor's degree in anthropology with an emphasis in archaeology and a master's degree in the same disciplines. At the time of the hearing, she had been employed by an environmental consulting firm for sixteen years, working on a variety of energy development projects throughout the Midwest.

[¶7.] Sappington worked with Dr. Wells on the environmental planning for the Project and had personal knowledge of the findings and opinions expressed in Dr. Wells's initial pre-filed testimony. In fact, Sappington assisted in drafting the testimony. To provide notice of the transition from Dr. Wells to Sappington, Crowned Ridge pre-filed Sappington's testimony adopting Dr. Wells's earlier testimony.

[¶8.] At the PUC's July 2019 evidentiary hearing, Crowned Ridge called Haley as a witness, but before he began his direct examination, the Intervenors objected to his testimony. They argued that Haley had misrepresented himself as a professional engineer and used the corresponding "P.E." designation after his name on correspondence and documents filed in connection with his sound and shadow flicker studies.

[¶9.] Haley explained that he holds a bachelor's degree in mechanical engineering and was a licensed professional engineer in North Dakota and Minnesota for nearly 30 years. However, he had in recent years voluntarily allowed his licensure to lapse because of changes to continuing education requirements and his plan to retire in the near future. Although he understood that he was no longer able to stamp engineering drawings, he believed he could still use the professional

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engineer designation. He learned that his latter belief was incorrect shortly before the evidentiary hearing.

[¶10.] Nevertheless, Haley explained that it was not necessary to be a professional engineer to conduct sound and shadow flicker studies. He stated that he was a partner in a wind energy consulting firm and had performed many such studies over the years and trained hundreds of others from various disciplines to use a particular software program to plan the construction of wind farms. Haley also testified that he was a member of a committee working to develop international standards for evaluating and locating proposed wind energy farms.

[¶11.] Crowned Ridge responded to the Intervenors' argument by claiming Haley's inaccurate use of the "P.E." designation was an innocent mistake that did not impact his ability to provide expert testimony. Staff for the PUC offered a similar view, indicating that the Intervenors' objection may implicate issues of weight or credibility, but not admissibility.

[¶12.] The PUC's hearing examiner agreed and overruled the Intervenors' objection. Counsel for the Intervenors sought a ruling from the commissioners, all three of whom agreed that the objection should be overruled.

[¶13.] The Intervenors also objected to Sappington's testimony immediately after Crowned Ridge called her as a witness, claiming that Sappington's testimony would constitute inadmissible hearsay. Under the Intervenors' theory, Sappington was simply "adopting" Dr. Wells's out-of-court pre-filed testimony as a sort of proxy witness. However, Crowned Ridge argued that Sappington had personal knowledge of the environmental impact assessment in the same way Dr. Wells did because

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Sappington worked with Dr. Wells and others in a collaborative effort to complete the assessment for the Project. Staff for the PUC did not support the Intervenors' objection, and the hearing examiner overruled it. Counsel for the Intervenors again sought a ruling from the members of the PUC who all agreed that the objection should be overruled.

[¶14.] The PUC issued its written final decision and order approving Crowned Ridge's application and granting it a permit to begin construction on the Project. The final decision was subject to 45 conditions, which ranged from restrictions regulating sound emissions from the wind turbines to limits on shadow flicker and other conditions designed to avoid or minimize the Project's impact on natural resources and areas holding historic and cultural significance.

[¶15.] The Intervenors appealed the PUC's final order to the circuit court. As part of their appeal, the Intervenors filed a statement of issues, identifying 31 individual issues, including 36 separate sub-issues. The Intervenors did not expressly challenge the PUC's decision to overrule their objection to Haley's testimony. And though they did include a specific issue relating to Sappington's testimony, the Intervenors alleged a due process violation, not a hearsay claim.

[¶16.] In their brief to the circuit court, the Intervenors addressed only three issues: (1) "Whether the PUC abused its discretion when it approved the Application using incomplete and inaccurate information related to sound studies[;]" (2) "Whether the PUC abused its discretion when it approved the Application without sound and shadow flicker studies at all occupied [residences] within the siting area[;]" and (3) "Whether the PUC abused its discretion when it

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approved the Application without a complete avian use study." The Intervenors referenced Haley's use of the "P.E." designation as a means of undermining his expert opinion, but they did not directly challenge the PUC's decision to overrule their objection. The Intervenors also mentioned Sappington in their brief, but only to point out that her testimony supported their view that Crowned Ridge's application did not include an avian study for birds in all affected areas but, in the Intervenors' view, should have.

[¶17.] The circuit court affirmed the PUC's final decision. The court noted the Intervenors' criticism of Haley's testimony but concluded the issue relating to its admissibility was not part of the appeal because it had not been listed among the Intervenors' stated issues. The court also referenced Sappington's testimony. It clarified that, though Sappington acknowledged the absence of an avian study for an area known as Cattle Ridge, the PUC specifically contemplated that fact and had relied upon additional testimony from Sappington, which convinced the PUC that Crowned Ridge had nevertheless used proper methods to assess the Project's "potential effects to wildlife for the entire Project Area."

[¶18.] In the current appeal,...

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