VI. Mackintosh Request to Hold
Record Open After Hearings
During the October 2006 hearing on this case, the Mackintoshes filed a motion asking the ALJ to hold the record open for submission of additional data regarding the hydrology of their property.18 The data would include data from borings and soil samples taken at the Mackintoshes' property to verify water table levels, 2) expert testimony interpreting the results from the borings and soil samples, 3) existing well logs for the Mackintoshes' property and adjacent properties, and 4) well logs and other relevant documents obtained by Mr. Richard Renouf, a witness at hearing, that were previously not accessible. The Mackintoshes claimed there was good cause to receive the new evidence.
In a response to the Mackintoshes' motion filed on October 20, 2006, PacifiCorp asked that ESA, the Commission's consultant, take borings at three agreed-upon pole locations on the Mackintosh property. PacifiCorp stated that the Mackintoshes had agreed to this plan. In light of this agreement, PacifiCorp asserted, there was no requirement to hold the record open for other material offered by the Mackintoshes. PacifiCorp stated that "gathering and submitting well logs and boring and soil reports from points that are relatively remote from the actual pole locations, as proposed by the [Mackintoshes'] Motion, will not aid in resolving the Protestants' concerns."19 PacifiCorp expressed concern that this data would unnecessarily require additional expert testimony from both sides: "This [submission of the Mackintosh data] would undoubtedly force both the Protestants and PacifiCorp into unnecessarily having to engage experts to analyze the information and, potentially, incur the time and expense of further evidentiary hearings in the event of disagreement over their experts' opinions."20
In later electronic mail communications with the ALJ regarding the motion, the Mackintoshes stated they no longer wished to submit their property to borings, but did wish to submit well log information. Their counsel stated on November 21, 2006 that,
You should have been copied on an email in which I provided notice, as Mr. Clark points out, that the Mackintoshes are no longer willing to endanger their springs by allowing ESA to conduct test borings and do not wish to do so themselves, either. They are, however, continuing to gather well log data from neighboring properties that would be affected by the Option 3 route. They believe that that data is relevant to the proceeding and have not withdrawn their motion regarding the record as it relates to that data.
The Mackintoshes have not yet submitted the data. They may file and serve such data within 7 calendar days of the effective date of this decision. They shall indicate in the first paragraph in a cover pleading accompanying the data that this decision allows such submission. Once the Commission receives the data, the ALJ will instruct the parties as to whether further briefing or other response is appropriate. No extensions of time will be allowed, given that the Mackintoshes have had since October 2006 to proffer the new data.
18 Revised Motion to Leave Record Open Upon Conclusion of Hearing, filed October 5, 2006.
19 Response of PacifiCorp to Revised Motion to Leave Record Open Upon Conclusion of Hearing, filed October 20, 2006, at 3.
20 Id. at 3-4.
