one three zero nine one seven edgar county citizens versus the commission or one four zero two one eight more than saying scott counties land preservation and others versus the commission and four one four zero two nine macon county property owners versus the commission we have several attorneys appearing here today and i think i'll start with  thirteen the case was consolidated with other landowner groups for purposes of the appeal while we all share the same record on appeal our individual arguments turn on the individual facts and legal theories preach particular line segment the argument i make concerns a line segment from quincy illinois to mary doe shell annoying which travels mainly through adams county and some others but i'm  seeking permission to construct a three hundred seventy five mile three hundred forty eight heavey transmission line and related facilities from the illinois border near twenty two the indiana border near terre haute which in this case required a decision from the commission within two hundred twenty five days now as it relates to my arguments a c p o seeks reversal reversal of the commission order and it's not our arguments are not based on the decision the commission as it relates to of the needs of the project that's not our argument our argument is based on the decision the commission as it relates the location of the transmission line that decision the commission evaluated a set of factors known as the least cost means factors which are eleven criteria of the commission applied for my particular line segment that criteria involves the length of the line the cost of construction impact on agricultural land the number of impacted land owners and the ability of existing rights away to name a few a c p o contends they t s i failed to demonstrate its route was the least cost means required by contained in the record by thirteen season row three zero zero six dash c zero three zero one six and eight another map containing essentially the same diagram is on page fourteen of the the commission's decision was based on these routes and when i refer to these routes i'm referring to whack line orders they did which is contention before the court is that the commission erred by choosing a route that was other than it is c p o route one what the commission did is they selected a hybrid route and that contained a portion of the alternate million dollars less then than amorous routes was three miles shorter than aaron's routes contained fifteen less that in structures and was recommended to the commission and approved by the staff engineer are the basis of my appeal the commission stated that there was a concern that the e c piotr out which reverse a neighborhood that it would impact six residences however the record indicates and even reference route one may potentially sure vers an existing residential area displacing six assumed residences and because the expedited nature this record because the ex and i nature of the proceedings there wasn't a whole development of whether the route would actually impact those six residences and the only thing the commission can do is make it an assumption or hypothetical what we do know that the commission's decision actually does an act of particular kind of mind which is a dairy farm please the court because judge i represent judges excuse me i represent morgan saying that scott county land preservation we're a group of approximately sixty landowners in the area affected by the proposed law we participated at all times proceeding before the illinois conversation and essentially is somewhat like my predecessor any of us here are the construction cost thirty six seven hundred eighty two thousand less to construct than the  i would like to point out a very interesting fact something that doesn't occur with any great frequency for the commission to general and actively participated i hired to give the commission guidance as to how these cases should be decided one of the gentlemen is a gentleman by name a great rocker he was mentioned prominently in my brief mr  dedication his thorough the other gentleman hired by the commission to present the case on to the commission was none other than mr harvey who sits here today mr harvey is a true expert in public utilities law that's all he does that's his thing as the old saying goes mr harvey is probably forgotten more public utility law than any of us writ the rest of us will know i should say throughout these proceed there's nothing unsafe or inherently unreliable about having to transmission lines that do not serve the same function or area routed adjacent to each other and he went on to quote a standard from the public utility law he says both went on to say both lines will not be serving the same area that's presenting a critical that presenting a critical problem he further went on to say percent rog or then the line adopted by the committee would be subject to the same when a plane crash whatever essentially said there is nothing to gain it certainly second rehearing there were three options available for the amount science substations were consider options one and two were located within one half mile of each other near mt zion option number three was located several miles away in your mill week county property owners favored option number three believing that there were various problems associated with options number one and two in the eleventh hour of the proceedings amerind introduced a stipulation between amarin and mount zion supporting option number two based requirement which provides of the utility must demonstrate to the commission that the proposed construction is necessary and is the least cost means of satisfying the service needs of its customers make kind of property owners your owners of sighted in its brief the case of citizens united or responsible energy versus the online commerce commission in citizens united the court held that a consideration of the least cost of a means by the commission is absolutely critical in that case because the lease cost  means issue was not considered the court ruled that the commission's order must be reversed and the cause must be remanded for further proceedings i hear your honour's there was disagreement over which side was the most appropriate location for the mt zion substation the commission also meant she decided because the community in amman simulated that option two was the appropriate site stipulation in question in awarding the site selection the commission overlooked the fact that absolutely no evidence had been presented regarding which of options one or two was the least costly option now am and suggestion is free that because i'm a kind of property owner failed to raise this issue if you have an injury hearing that the may county property owners have somehow forfeited their right to a raise on a missions failure to make the least cost analysis and or even goes so far as stating that one party is lacking notice of a claim they lack opportunity to develop a record and because megan did not present this issue until a proposed order had already been issued amber never had an opportunity to meet to meet the issue with evidence the statute places the burden of a say abolition least cost wearily on the utility or honors the burden is not on the interveners amarin did not lack notice property owners do not have knowledge of the stipulation prior to its metal making any property owners do not have an opportunity to address the stipulation during testimony until that time the property owners believe that the various parties were actually advocating foresight that it's in the record these sulphur springs site and not options one or two that being the case may county property owners had no reason to believe that it was necessary that hammer put on evidence to satisfy the statutory a least cost requirements honors my name's drew griffin and i'm here on behalf of the group known as the at your county citizens are entitled to due process simply put we here a day because our clients didn't get the notice we think that they should have received in order to have a meaningful opportunity to participate in the proceedings at the commission level as such we would like for this court to reverse the order issued by the commission that night our ability to intervene as well as denied our application for requiring or argument slightly different than what counsel before me is presented because we're not here necessarily to argue about specific points along the lines or elements that were considered least costs etc we're here because as you can see from the are three lines here the yellow line is the alternate route proposed initially by hammering the green line is the primary route initially proposed by amarin and then the reddish orange dotted line that travels just north of the alternate route is the route that was selected by the commission that was a route that was proffered by a group called stop the powerlines coalition after having initially presented that route sometime in in may  thirteen they entered into a stipulation with amber and other parties supporting the alternate routes they actually decided to support go their effort even pursuing that route however it was still on the table for the commission to consider and another group took up the cause and  fought to have that route chosen the concern here is our landowners the people there on that dotted line that does not overlap with the alternate route they didn't know the route to change they did not get the  is silent as to what type of notice landowners deserve if they're being if their land being affected by an alternate route proposed however in the illinois ministry dakota talks about what happens when  so the only so where we look to guidance the closest we can get is the conversations happening tween the administrative law judges in this proceeding when people would show up to the hearings so in the transcripts that we've sat in our grief from those meetings as well as from discussions between the ale jason the commission were that if intervener were to propose a route then they would just follow the same procedure basically that amran had to which was to put together a list of landowners affected by the proposed route as well as  map to show what they would be and been the clerk of the the i c c was to send a notice we don't know why our people didn't get the notice we just know they didn't at the time we figure this out it was after the initial aug twentieth two thousand and thirteen order was entered the way they found out was because cameron had sent them a letter dated september sixth twenty thirteen bice by certified mail return receipt requested so we know they got that and all these landowners along this dotted line they did not overlap with the alternate route started to talk to each other and they realized what's going on this this isn't right we didn't get notice of this so soon as they could they got together and they found we filed a petition intervene ok council let me ask you this that's backed up a little bit posing council says that your people did receive notice of the project do you agree with that the project generally we would we hope and agree that notice of the proceedings and the routes under consideration we would disagree that they knew about the proceedings because they did not get that special type of notice of the notice they had about the project was the general notice that there is an enormous project coming from west to east across the state it's going to construct power lines are going to carry three hundred forty kilovolts of energy a process say when they go to the initial meetings that and was supposed to hold prior to filing the certificate pursuant to the statute they had a map of the primary route and the alternate route but that would not have put them on any form of notice that their property would be affected because their property is not located on either of those routes so when they wore mail notice like the people on the green and yellow lines were that were part of the amber routes initially submitted because in addition to the public meetings they got stuck and see my time's expired i continue answering that question you have if they didn't get the nose that everybody else got these people that run the primary alternate route in addition knowing about the general meetings they got letters mailed to them that they parents received we never got those letters mailed to our individuals so they didn't know to get a seat at the table to present the evidence so all we were left to do was try to intervene and try to file an application for rehearing and procedurally it looks movie we will admit that but they've been deprived of their right to have a say in this matter and not only that if we got a chance to have a say which were nine here to argue about now unfortunately we would see that there are a lot of houses and structures that are affected on this route and the commission order specifically points out that the s t p l route the one adopted issues and my colleagues mr sturdivant and more and that will address other issues i think it's an initial matter it's important for this court to understand the scope of the proceedings from which this appeal is  accomodate landowner concerns there could be any number of outcomes that would not result in an eminent domain action being brought and i there are additional requirements as far as notice and things of that nature that come into have to comply fully with the eminent domain act and post civil procedure so i'm sure that notice in terms of you know personal service would be required circumstances so you don't view it as a significant strike against these landowners that the fact is a certificate has been very well in the sense that it's not leaving right to mind but the fact is that the evidence domain proceeding is where the property interest is clearly implicated and that's clear from the cases and accordingly the due process issues really don't arise in the proceeding from which this deal is taken and i think you had your county citizens have conceded that what they're asking this court to do is essentially reconsider the doctrines that the supreme court has enunciated and this court's decision and when now turning to the specific notice required by section eight for a six point one that was fully complied with i mean and i think the edgar county citizens again fully concede that public hearings were held notice by publication was given and a web site was a selfish and there's no suggestion of that did take place  likewise there is ample evidence that the commissions gave notice of the general proceeding to everybody involved and the missions rules call for that and that was complied with the issue that seems to ever come citizen seem to be taking issue with whether they individually got notice and that presumes that they were entitled to it in the first place which we submit is not the case  the record reflects that individual notice of a route modification was given pursuant to a notice issued by our clerk on january thirty first two thousand we're seeing our commission consider edgar county citizens further argue that due process was denied because they weren't permitted to intervene in the proceedings and because they weren't here however one of the requirements to intervene is if you have to accept the record as it exists at the time of your intervention and the anger of counting citizens i don't face of their pleading didn't do that they wanted the record entirely stricken and the commission's decision stricken as to their segment of the line now the commission controls its own proceedings its decisions as to allow intervention are discretionary and the abuse of discretion standard applies to that so that argument does likewise procedures and the commission staff is it not the commission itself the commission staff is it experts who work for the commission try to recommend rural clark and at your county concerned citizens the sat the map so to speak we are in the same area that mr grant's clients are after county due process which is the east or most segment of the line from the kansas substation today indiana line i have two points i want to talk to here and this appeal to the first is whether the members of due process have a property right that's protected bull pursuant to some cognisable law that's at interest here and to notice because mr harvey talked about notice or talked about the property ri alive i thought i would start with notice to understand what happened in this case the statute requires there before the utility files its petition it has public meetings it sets up a website that has to stay in place throughout the entire project and then it files its petition with detailed maps specifications and lists of landowners those landowners are given mail notice of the project in this amarin was required in their petition to set forth to alternative flying's a primary line you know of from line my clients were on the alternate line after the case was filed there were a lot of intervener some place i think i read eight interveners that a o j said interveners you too can propose winds though the rules for the commission don't talk about this don't require it it we're going to require that you do the exact same thing that the utility had to do and that is provide us with details maps landowner lists with your alternate lists there was another group in our area called staff the power lines they submitted to alternate routes with maps with lists of individuals that were on those route shows on its face january thirty first two thousand and thirteen that those people listed were provided with notice of the two routes that staff the power lines had tender to be considered those one all the way through we got to our hearing there was a five or eight day hearing so that the power line had given up their support for its two alternatives but they said they're still in consideration so we my group supported those as well as the staff of the i c c supported in the end the c found that that was the least cost alternative service of public necessity and convenience and it made sense my people lived on virgin territory no lyings  arguments here is an argument that hey there's something really screwing with this line it's in the wrong place it's not going to work there it goes over a civil war cemetery none of that has been presented here the only issue is notice it's our position that the base of the record in this case show us that they did receive notice when they found their petition to intervene they were required to and did say that they would accept the record the face of the record as it was on the day that they intervened therefore in this case there is no question that they got notice you then move to the constitutional side of the argument the due process side of the argument the point i'd like to make there is is that they haven't cited one case one statute one president law review article anything that says that they have a property right at this stage of the proceeding no precedent on without that they don't have standing here to make that argument they don't get to go to the facial constitutionality of their argument and therefore and i think both mr mr moran and mr harvey get on this the i c c had in place a mechanism to provide mail noticed that utility proposed routes and the old days imposed that same mechanism to provide mail notice to interview i think that ford's due process turning down your honors to some of the routing questions i would start with some of the points made by making county  group i think we should be clear regarding the substation option one purchase option two there was evidence in the record of option one versus option two and the commission's order said that it  consider the arguments the other parties including arguments regarding option one and option two for example whether by the pm but there is option one option two are quite similar and so stipulated to that location and that was a reasonable basis to do so council for me in county in their arguments talks about some of the different factors that they think should have been considered regarding option one versus option to use for example crossing existing power lines twice and i think that really illustrates the point that those types of arguments were not raised until after the the record was closed in the briefing was over there was no opportunity for am or the commission or anybody to respond to those arguments with that ins which is the basis of the waiver attorney next your honor to the adams county property owner adams the splay segment at least six assumed residences that finding is supported by the record the record shows that a c p o alternate route one would in fact traverse an existing residential area it takes eyes reading expert testified as much and you can see from the aerial photographs so for example exhibit four point two part two page two quite clearly from the aerial imagery how the c p o alternate route follows across the south of the intersection of highway one seventy two and highway ninety six and follows highway ninety six along a residential subdivision area and there's you know evidence to support know your honor that the evidence supports the i believe that there were within one hundred fifty feet of the line there were nine more residences on the alternative route proposed by adams of whom six would potentially need to be displaced or the homes torn  testimony from amber and witnesses that would have highlighted potential grok that yes there was your honor so in both the direct case and the rehearing case there was testimony from i am an witnesses regarding the operational reliability problems associated with paralleling transmission lines that was witnessed with mr hackman in the rehearing  his was the testimony to commission found particularly convincing on this issue there was other testimony generally the other testimony was that the parallel transmission lines were not inherently unsafe but mr hanken pointed out that there were operational liability problems and the issue before the commission was those problems increase the more extensive you're paralleling problem with the organ group is that one hundred percent of the fifty seven odd miles of that route were parallel and that's why the commission recognizing that there was a choice between short or lower costs and the liability shows reliability close this by saying it in all the discussion of notice and the roots of the transmission line it's important to keep in mind that this transmission project is a necessary and important project for illinois represents a substantial investment in the state and as the commission  challenge here because the project is necessary it has to go somewhere not on the property of one landowner on the property of someone else commissioned recognise this of they recognise that they were faced with difficult and challenging routing choices and route number one could be adopted so therefore instead of spending nine million dollars in additional funds for an alternate route we can test a c p o on the given all the overwhelming evidence in favor of it should be the one that the commission adopted a reality reliability issue which touches on a c p o to the commission found that a c p o alternate one parallels an existing one thirty eight k v line which eighty excise suggests may present reliability operational main concerns although the fact that eighty x i does not have similar concerns of a look and long illinois has project is troubling troubling to the commission so in one breath a commission finds it relevant that there may be reliability concerns spike the fact that stabbing near said there is no reliability concerns and th real experts in the field or mr rockmore we testified mr harvey presented the time this matter to the side of a commission there were five members of the committee who were lawyers one was a political scientist one was a community activist and one was a guidance counselor they hired expert big guy and they didn't in the orders say why they rejected their own expert i think that is critical one other point i would like mr harvey in his brief stated that it's a true prong co equal test of mine shows let's be shorter and least cost and co equally must be ship and i don't believe that our line is not reliable but let's assume mr harvey's argument is right and it's got to be sent back to the commission because my line without argument is the least cost back to the commission and there are new hearings the issues are more clarify we know what we were coming from and hopefully the conditional get it right this time other and council states that options one and two costs are quite similar option to cross a road twice involve several miles i don't recall exactly how many but several miles of additional line but we don't know exactly what the costs are with regard to option one versus option two because by their admission there was no showing of cost of these costs the commissions defensive option to rest entirely on the communities acceptance which was in the accidents happen things get lost in the mail things that are supposed have been sent out don't always make it out ok what we have is fourteen affidavits that we were able to round up when we filed our petition we were buying up or titian that with the order stating that that letter from amarin was the first time from a tax i was the first time those landowners on that route that was selected knew about the proceedings so if we've got it it's in the if it's in that much dispute it seems like the damage done to the property owners is going to be far longer lasting than the damage done if our landowners our group is allowed its thirty days or whatever it might be to have an opportunity to present its own evidence why they've selected a bad route and briefly just because justice turner and justice holder white were having this discussion with mr harvey about the property interests we do think there is a property interests there and we'll say this mr moran did say that there was no authority cited for that proposition i don't know that i can argue that but it case it may be this what mr harvey for free to the state and i don't know illinois power versus land was a case talking about the probably right attaching the confirmation process it has to attach sooner because these proceedings basically say where the line is don't b that we get the eminent domain proceeding we believe justice holder white it's too late now all we're talking about see amount of compensation it we're not talking about an opportunity to be able to preserve your land this land matters more than money to these people and what they've been deprived of because of their lack of notice is an opportunity to present evidence for why they shouldn't have to give up their land so to say that property interest isn't there it's a legal fiction their land is marked for being taken thank you