This story has been updated.

PIERRE, S.D. (KELO) — The South Dakota Public Utilities Commission decided to dismiss the complaint brought by three citizens against Crowned Ridge Wind, after none of the complainants appeared at the 9 a.m. evidentiary hearing Wednesday.

Amber Christenson of rural Strandburg and Linda and Timothy Lindgren of rural South Shore had filed a formal complaint on September 21, 2022, that Crowned Ridge Wind’s turbines in the area were making more noise than allowed by the PUC’s permit that was granted for the project in 2019 and alleging that Crowned Ridge failed to comply with a 2021 mitigation plan.

The commission had voted 2-1 on Tuesday afternoon to grant Crowned Ridge’s request that the commission should disregard most of the information that Christenson had sought to present because she wasn’t qualified to serve as an expert witness.

Commission chair Kristie Fiegen said Christenson could present some of the information and commissioner Gary Hanson supported her, while commissioner Chris Nelson voted, in his words, “No, reluctantly.”

Fiegen said her Tuesday motion recognized that Christenson had spent a lot of time working on the complaint. “This allows her work to be used by commissioners, like me,” she said, adding that the work would allow the commission to ask Crowned Ridge questions about the complaint.

Fiegen agreed with the contention by Crowned Ridge’s attorneys that the technical expertise involved in this case is beyond the knowledge of the average lay person. “As a commissioner, I’m upholding the law regarding the rules of evidence,” Fiegen said. “So Crowned Ridge, be prepared tomorrow (Wednesday) for the tough questions Amber has asked in her rebuttal, although they won’t be on the record in the evidence.” 

Nelson said Fiegen’s motion would “thread the needle.” and described as “difficult” the question of whether Christenson was an expert witness or a lay witness. “I think we all agree that a citizen ought to be able to bring questions like this to us,” he said, but noted that Christenson had told the commission that she considered herself an expert witness.

Nelson said that meant Christenson could be challenged by Crowned Ridge’s attorneys on Wednesday about her expertise. “Whether it survives the next 24 hours is another question, but as of this moment, that’s where we’re at,” Nelson said. 

Hanson said Tuesday he had to “chat a little bit” while reaching his decision. He disagreed with Christenson’s assertion that the motion was premature.

“This whole process and this motion brings to light a concern I have had for many years,” Hanson said, regarding situations where a lay person who doesn’t have the financial ability to hire an expert and the commission doesn’t provide services of a consumer advocate. In the past, the commission has allowed lay persons to do things that the commission wouldn’t allow lawyers to do, he said.

Hanson described Fiegen’s solution as “a compromise that resolves everything in its proper order.” 

On Wednesday, attorneys Brian Murphy and Miles Schumacher were present for Crowned Ridge in a meeting room on the fourth floor of the Capitol.

The other side was a no-show.

“The meeting room is absent from the complainant,” Fiegen said.

The complainants bore the burden of proof.

“Apparently they have chosen to not put on a case,” Nelson said.

Hanson said the elevator wasn’t functioning and had requested a staff member to go downstairs to check on whether Christenson was climbing three flights of stairs.

Fiegen noted two other elevators were working. The commission went into a recess for three to five minutes at 9:06 a.m. 

A few minutes later, the commission returned to the hearing. Fiegen looked to Crowned Ridge for a motion. Schumacher said that the complainants hadn’t filed expert testimony or shown up, and he requested the commission to dismiss the complaint.  

Said Nelson, “It’s unfortunate, certainly.” He noted that the commission had been working for four years on the sound-level issue. “Today was the day appointed to get to the bottom of this.” 

Hanson described the situation as like “showing up at the wedding and the brides not there — it’s a little difficult” and said he was surprised. “I’m just amazed she is not here. I hope nothing bad happened on the drive here,” he said. “It leaves us with no other direction than to support the motion.” 

Said Fiegen, “We have spent a lot of time studying this, holidays, weekends et cetera.” In her view, there was no other option than to dismiss. “Like commissioner Hanson said, I hope everyone’s okay.” 

UPDATE: KELOLAND News reached Christenson by telephone Wednesday afternoon.

“I decided to not take any more time or energy away from what I had going on personally,” she said, adding that the commission has typically favored the industry. “I don’t think it should have ever come to a complaint,” she said.

In Christenson’s view, the commission and staff should have reached the same conclusion. She stated that one of the sound studies was conducted only four of the scheduled 14 days. “I think they should have picked up that ball. I shouldn’t have had to,” she said.

The commission had set aside Wednesday and Thursday to consider evidence. She said the commission’s decision on Tuesday to limit her testimony was part of the reason she didn’t show up Wednesday.

“Absolutely, absolutely – I worked so hard on this since this whole project began,” she said. “I am an expert on the Crowned Ridge project. I absolutely am. Their throwing away all that evidence just weighted the scale in favor of Crowned Ridge.”

Told that her decision to not attend Wednesday surprised the commissioners, she replied, “I assumed they would be surprised, because I’ve been a fighter right from the get-go. I’ve been a dog on bone.” She added, “I’ve been disappointed in quite a few of their decisions and yesterday was icing on the cake, I guess.”

Christenson said the commission can still delve into the issue that she raised. “They don’t need me.” As to not showing up, she said, “I guess it was my civil disobedience.”