STATE OF IOWA DEPARTMENT OF COMMERCE UTILITIES BOARD IN RE: DOCKET NO. HLP-2014-0001 DAKOTA ACCESS, LLC ORDER DENYING MOTION TO RECUSE (Issued February 18, 2016) On January 20, 2015, Dakota Access, LLC (Dakota Access), filed with the Utilities Board (Board) a petition for a hazardous liquid pipeline permit, pursuant to Iowa Code chapter 479B. The matter has been docketed as Docket No. HLP-2014-0001. On February 17, 2016, Kriss Wells, one of the parties to this proceeding, filed a motion asking me to recuse myself from further participation in this matter. The motion states that during our deliberations on February 11, 2016, I said “that [I am] resistant to the recognition of Climate Change because of [my] fear that it would damage [my] ability to be successful in running for public office.” On February 18, 2016, the Sierra Club Iowa Chapter (Sierra Club) filed a joinder in the motion, stating its “understanding that Mr. Wagner made the comment about taking a position on climate change damaging his political career on two occasions, once on February 8, 2016, and again on February 11, 2016. Therefore, it does not appear that this was just a light-hearted off-the-cuff remark.” (Joinder at p.1. Sierra Club also cites to Wilson v. Iowa City, 165 N.W.2d 813, 822 (Iowa 1969), DOCKET NO. HLP-2014-0001 PAGE 2 but does not expressly state why the case is relevant. However, the quoted language from that decision refers to the potential for conflict between the public and private interests of governmental officials and employees. Iowa Code § 17A.11(3) allows any party to make a timely request for the disqualification of a person as a presiding officer in a contested case and § 17A.11(4) requires that I, as the person whose disqualification is requested, must rule on the motion. Technically, the statute requires that the motion be accompanied by an affidavit asserting an appropriate ground for disqualification and neither the motion nor the joinder included an affidavit, but I will not reject the motion on that basis. Disqualification of a decision-maker in a contested case proceeding is also governed by the Iowa Code of Administrative Judicial Conduct, set out at 481 Iowa Administrative Code 10.29. Canon 3(b) of that Code requires a person to withdraw from participating in the making of a decision in a contested proceeding for any of 7 different reasons; none of those reasons apply here, so disqualification is not required. Those 7 reasons are: b. Disqualification. A presiding officer or other person shall withdraw from participation in the making of any proposed or final decision in a contested case if that person: (1) Has a personal bias or prejudice concerning a party or a representative of a party; (2) Has personally investigated, prosecuted or advocated, in connection with that case, the specific controversy underlying that case, or another pending factually related contested case, or a pending factually related controversy that may culminate in a contested case involving the same parties; DOCKET NO. HLP-2014-0001 PAGE 3 (3) Is subject to the authority, direction or discretion of any person who has personally investigated, prosecuted or advocated in connection with that contested case, the specific controversy underlying that contested case, or a pending factually related contested case or controversy involving the same parties; (4) Has acted as counsel to any person who is a private party to that proceeding within the past two years; (5) Has a personal financial interest in the outcome of the case or any other significant personal interest that could be substantially affected by the outcome of the case; (6) Has a spouse or relative within the third degree of relationship that: 1. Is a party to the case, or an officer, director or trustee of a party; 2. Is an attorney in the case; 3. Is known to have an interest that could be substantially affected by the outcome of the case; or 4. Is likely to be a material witness in the case; or (7) Has any other legally sufficient cause to withdraw from participation in the decision making in that case. The Motion to Recuse alleges that I am reluctant to recognize climate change because of concern for my potential political future. I assume this is intended to be an allegation that I have a “significant personal interest that could be substantially affected by the outcome of the case.” That argument misses the point of my statements on this subject last week. My point was that regardless of whether I believe climate change is caused by using fossil fuels, I believe climate change is not entitled to great weight in our deliberations in this proceeding. Fossil fuels are consumed because there is demand in the marketplace and granting or denying a permit in this proceeding will not materially affect the demand for oil products. The evidence in the record shows continued production and consumption of oil despite DOCKET NO. HLP-2014-0001 PAGE 4 the possible existence of this and other pipelines, showing that the market and use of fossil fuels is driven by demand. I would also like to clarify that I would never put my personal interests ahead of the public interest. IT IS THEREFORE ORDERED: The “Motion To Recuse” filed by Kriss Wells on February 16, 2016, is denied. UTILITIES BOARD ATTEST: /s/ Trisha M. Quijano Executive Secretary, Designee /s/ Nick Wagner Dated at Des Moines, Iowa, this 18th day of February 2016.