Iofina Share Discussion Threads

[superg1] 01/12/2014 16:46

Sancler

I used the words verified re my difference of opinion

"The short answer to your question is the determination of whether an objection is valid remains the same. There is nothing in rule or statute that distinguishes a difference in the objection process between an application that is preliminarily determined to be granted and an application that is preliminary determined to be granted following a preliminary determination to deny"

If you have heard or know of the point of new evidence needed, then great, to me that is good news.

The bureau who are the experts on the topic with all the data, took many months coming up with their 'evidence'. Joe Public gets 45 days and stands little chance of proving an adverse effect.

[superg1] 01/12/2014 16:32

On the other points I entirely agree and I listed the points earlier with the details from the PDTG.

'All that said, I cannot (after checking so far as I can) see any error of law in the PDTG.'

Agreed the evidence of water physically and legally available is considerably in excess of the demand from IOF.

'I have some difficulty seeing who, and on what grounds, would be adversely affected.'

I agree there too and have mentioned that point a number of times. 'Legally available' was a bit of a 'phew' moment in the earlier IOF rns, but now I can see the figures, it was a given by a huge margin.

As for your last paragraph I came to that conclusion long ago and posted about it, hence I don't refer to them as like you I believe they are non-starters.


Re your very first comment

'But given that the objector is obliged to show new facts in order to found an objection'

I don't agree, unless you of course you can point to where this is recorded.

I was hoping that point was relevant, as the main points, and the only valid points that seem that can be raised are diversion and beneficial use which have already been proven by IOF.

As I understand it an objector could raise the same points exactly and have a a valid objection, whether it would advance to a hearing when it is pointed out to the objector is another matter. After all the average objector won't have an in- depth knowledge of the law, and they may determine the word 'interest' to have quite a wide meaning.

We could spend all day posting about what owner and propriety right or interest means under our laws. If we sat a number of lawyers together and threw in the topic, there would be a number of disagreements between them. It would take all day and there would be no final agreed conclusion.

In fact whoever reviews the objections may consider them to be valid or not, and if they passed the form to others, conclusions of what is or isn't a valid point would differ.

[superg1] 01/12/2014 16:08

Sancler

Re your comment that it would need to be new facts for it to amount to a valid objection.

'But given that the objector is obliged to show new facts in order to found an objection'

In relation to that assumption you are wrong.

You would think it would be the case but it isn't. The objection process is identical regardless of the existing hearing. It seems daft but that's the way it is. That has been checked and verified.

I believe the circumstances surrounding when a rights holder can object is why the scenario exists.

No one can put in an objection until the public notice goes in. If they object pre that date it's not valid. The water bureau can't and didn't represent all persons with a standing. In fact they will have no idea re the extent of the list of persons that could be deemed to have a standing.

The water bureau hearing was part of the determination process.

As you say it's complicated, but I can assure your findings are wrong, it's nothing to do with new facts.

The slate is more or less wiped clean for objectors.

The person of standing point is interesting as it seems you at least have to have a direct connection to an existing water right. Then you have to describe the adverse effect. If you don't meet the person of standing criteria, then you can put all the evidence in you want, it will be rejected.

[cyberbub] 01/12/2014 14:23

Yes it's hard to see at this stage the basis for a valid objection. But let's see what the company say, I would expect an RNS probably next week after the DNRC have formally told them what the objections are, whether a hearing is required etc.

[sancler] 01/12/2014 13:38

superg1 re post 27364

In effect, an objection is saying to the DNRC "you got it wrong". As the decision involves findings of fact and conclusions of law, it could cover either or both. But given that the objector is obliged to show new facts in order to found an objection, I find it difficult to envisage what relevant facts, not already dealt with by the PDTG, there could be. Just repeating old, or alleging irrelevant, facts would not be enough. But if new and relevant facts are credibly alleged then those would have to be tested by evidence and that would involve a hearing.

I cannot be sure (as so much rests on Montana case law to which I do not have much access) whether an objection could just be based on a point of law. The requirement for new facts to be alleged by an objection suggests not. But I find it difficult to believe that, if there is a clear error of law on the face of the record, an interested party would not have any recourse. It looks like there are general remedies available in the District Court but those are more time consuming and expensive. So my guess is that, if an objection did allege a clear error of law, it would (even with no new facts) be accepted. If so, that would require a hearing for arguments to be put on both sides.

All that said, I cannot (after checking so far as I can) see any error of law in the PDTG.

And it has to be remembered that, not only in order to object to the DNRC but also to be able to use the general remedies at the District Court, a person has to show that the DNRC decision adversely affects them. I have some difficulty seeing who, and on what grounds, would be adversely affected. But someone obviously thinks they are.

Finally, and just for completeness, there are three criteria that the PDTG does not address because the Applicant only has to prove them if a qualified objector raises them. Two of them - about water quality and effluent - look to me to be absolute non-starters. The other one is "the proposed use will be substantially in accordance with the classification of water set for the source of supply pursuant to" a provision that deals with " the classification of all state waters in accordance with their present and future most beneficial uses, creating an appropriate classification for streams that, due to sporadic flow, do not support an aquatic ecosystem that includes salmonid or nonsalmonid fish". I've not really got my head round that, but I think it means an objection could be based on interference with fishing rights. But the only source materials I have found on that suggested to me that (a) the only qualified objector would be a state agency and (b) it would usually be sorted by agreement, without a hearing.

Sorry for the boring points of law. But that's my retired lawyer's take on the "might there be a hearing" issue.

[che7win] 01/12/2014 13:00

Oil price now positive, as I said this morning, there are a lot of shorters riding it.

[superg1] 01/12/2014 12:30

I imagine so, there may be more than one.

The bureau will go through any objections and note if there are any valid points which make an objection valid.

EG as in the prior post objecting to water not being physically or legally available would appear to be impossible to prove. The data comes from flow monitors on the river.

I did post some time back re beneficial use with the view that someone would have to prove Halliburton and orgers don't need the water etc. Halliburton may have contracts in mind and they certainly wouldn't be obliged to identify them due to competitor issues.

I was of the opinion from the start that the water laws supported IOF not the water bureau. I pointed out that other permits have been awarded under the same type of evidence and circumstances. How can you issue a permit to many and refuse one with the same criteria met.

The laws are complicated and as far as I can see the wordings are not sufficient to cover all options. So all we can do is interpret them from the basic wording.

I had thought about supply availability v demand and whether that has any relevance when issuing permits. There is nothing to suggest it does.

Thinking outside the box on that point. Montana is known for crop growing like wheat.
So if a Montana farmer decided to grow wheat and needed a permit, the bureau can't say, 'no the market has plenty of wheat, you can't have it'.

All that matters is physically and legally available, does it impact the rights of others and does irrigation fall under beneficial use. Yes it does.

[engelo] 01/12/2014 12:03

SG: thanks again for information. Will IOF know the details of the objection by now?

[superg1] 01/12/2014 10:40

The criteria list which objection have to be based on. I have added in facts from the last hearing, including the details which show why some points can't be affected by an objection

In the Preliminary Determination to Deny the Department found that the Applicant had satisfied the criteria of physical availability, legal availability, adverse effect and possessory interest.

1. Physical Availability – Provide facts showing why water cannot be considered physically available.

This point is purely about the actual amount of water flowing at any one time past IOF's identified extraction point.

The amount IOF intend to remove is 5cfs. the actual lowest flow rate from monitoring records is 7751 cfs. That's 1,550 times the rate IOF will extract at.

Thus it is impossible for anyone to show that 5cfs isn't available. That's what they would have to do.


2. Legal Availability – Provide facts showing why the water cannot be considered legally available.

For legal availability, the way facts are recorded and comments made' it seems to relate purely to volumes legally available.

EG a Monthly legally available flow rate is shown. The bureau shows that November is the month with the lowest legally available flow rate.

Nov. Legally available 2571 cfs, IOF amount 5cfs amount left 2566 cfs. So there is over 500 times the amount of water legally available compared to the IOF 5cfs request.

3. Adverse Effect – Provide facts showing how this proposed use will adversely affect your water right.

The above figures are from the bureau records. When they determine the amounts available they include all relevant existing permits. The max total extraction by all relevant permits is 44cfs which as you can see is way below the legal amount available.

4. Diversion Works – Provide facts showing why the construction of the project may not be adequate.

Already proven in the recent hearing, but there is an interesting point raised in the hearing.

41. The adequate means of diversion statutory test merely codifies and encapsulates the case law notion of appropriation to the effect that the means of diversion must be reasonably effective, i.e., must not result in a waste of the resource.

So the argument of, can the amount actually be feasibly diverted is not relevant. The fact that it is not impossible is all that matters.

So on that point where could any new objector go on the subject, case law has it covered. In fact IOF demonstrate some permits awarded where the actual supply time rate needed is higher than theirs to achieve full extraction.

5. Beneficial Use – Provide facts showing why the use (purpose) or flow rate and volume may not be considered beneficial.

Once more a hard one to argue, it's already proven. I find this rule strange. The law states you have to identify beneficial use for your water, and that it can't appropriation for water speculation. Yet the ruling is you only need letters of intent for half the volume applied for ???. so the other half then IS speculation in my book. ???. Never mind that's the law there are plenty of weird and wonderful laws around.

Also on that point nowhere does it say not needed, just whether it may not be considered beneficial

6. Possessory Interest – Provide facts showing the applicant does not have possessory interest in the place of use.

This simply won't feature as an objection point. It's about the land the depot will be built on and the rights of way. Without those the application couldn't be submitted.

[1madmarky] 01/12/2014 10:29

Thought the OK oil play was relatively shallow thus cheap to drill compared to other region.. If this is the case then other areas would stop drilling first. Also as pointed out by others, the drilling is the expensive part. Once that's out of the way it's just maintenance water and periodic re-franking that is required.
So I think our brine supply will be safe as existing wells will continue to produce.
AIMHO of course.

[engelo] 01/12/2014 10:24

ridicule: just look it up on

The 'hearing scheduled for' date is a nonsense date which simply indicates that an objection has been received.

[ridicule] 01/12/2014 10:16

superg1 Do I take from your post 27364 that as of today - 1 Dec that the 'hearing box' for the objection already received has not been ticked by the Authority?
May I also add my thanks for excellent research and the effort it must take.

[engelo] 01/12/2014 10:15

Dismal start to the month. There must be investors out there who don't read this thread, and the impression given by the RNSs is that it's damn near impossible to get a decent production rate out of the plants.

Tom's unfortunate remark that 2015 plans will be coming in 'the next few months' doesn't help either.

These investors might also have been expecting a water RNS to-day.

Oil sentiment is not helping either of course, but if margins are under pressure then this makes deals with IOF even more attractive than a couple of weeks ago.

[che7win] 01/12/2014 10:09

Oil,
As I said in my last post, shorts starting to run scared on the oil, up $1.50 since 8 am, still down on the day though.

By the way, not all our brine is supplied from oil fields, some is from gas, I don't see this as an issue.

Existing wells are refracted from time to time, can someone with better knowledge let me know how often? I have read every 7-10 years, but not sure about in the Bakken.

[superg1] 01/12/2014 09:40

Sancler

I note you are a retired lawyer.

On the point of a valid objection.

Even though there has been a hearing covering the points of diversion and beneficial use, someone could object quoting identical reasons. That means it could go to a hearing, as I understand it the bureau won't reject the same point just because it's already been raised. It would still be valid but the objector would be just wasting time and money if they pursued an identical point.

I don't expect any potential depot to be fully complete and supplying until H2 2015, so any valid point and hearing shouldn't change that time line.

In fact I'm going to take a stab at 27th February 2015 as the date that will go in the hearing box if they identify an objection as valid. Valid simply means it's a valid point in context of the objection criteria

[che7win] 01/12/2014 09:19

Oil has been a one way ticket for the past month, China data not helping over the weekend.

There will be a stampede and rise in oil price when the shorts decide to close.

As for IOF, I don't think we are affected much by oil - existing wells drilled producing keep producing for up to 30 years, albeit with a long tail.

The capital is spent on the wells producing, they will keep pumping and we keep receiving brine.

[arlington chetwynd talbot] 01/12/2014 08:14

Price falling here too... it's all related to oil plunging again overnight and the effect it will have on the areas you secure brines.

[superg1] 01/12/2014 07:56

Sancler

On the down time point of the river pumps I entirely agree. I've been head scratching on that point for some time.

IMO they could never supply 77000 bpd 24/7 365 under those circs.

To do that you would need the ability to supply in excess of the amount. Perhaps they consider 50,000 per day to be achievable as an average including down time.

It's that point that confirms to me the water laws are what matter, not opinion.

As it is physically possible to do 77000 bpd, every day without fail the courts said the means for diversion are adequate. It seems logic doesn't come into it.

I can see why the bureau claimed it wasn't adequate, but they would have been working on logic, not a perfect scenario.

In terms of revenue it all depends on the amount of hot water needed.

Taking that point and thinking of Culbertson with just 2 filling water points it's just not a viable filling station for the likes of Halliburton. The vast majority of 'depots' are like that.

[cyberbub] 01/12/2014 00:03

I agree with your last para Sancler!

[sancler] 30/11/2014 23:28

cyberbub

Sorry if I've confused things. Have a look at this



The relevant bits are on pages 4 to 8, Under the heading "ADEQUACY OF MEANS OF DIVERSION" and the sub-headings of "FINDINGS OF FACT" and (if you're interested) "CONCLUSIONS OF LAW".

Those describe the paper exercise of the Hearing Examiner deciding that the necessary box has been ticked.

This (and other) boxes having been ticked the award is made, albeit subject to objection. It covers 3622 acrefeet at a maximum flowrate of 5 cubic feet per second.

How Atlantis actually gets that amount of water from the river to the depot and out of the depot into trucks within that maximum flowrate limit is a different issue. It looks a pretty daunting task to me. On the input side of the equation there seems to be no allowance for any downtime of the river pumps. On the output side of the equation it requires a truck to arrive at the depot, on average, at least every 7.5 minutes every hour of every day throughout the year. But that's me, as a non-engineer, again just doing a paper exercise only on the figures in the PDTG..

I agree with bobbyshilling that we have to assume that Atlantis, as engineers, have done their homework. Both the amount and the flowrate are, after all, what they applied for (although the amount was, at Atlantis' request, scaled down from 3800 to 3622 acrefeet). So they must have reckoned that, in engineering terms, they could cope with it.

[bobbyshilling] 30/11/2014 20:41

cyberbub, I would suggest that IOF would have done their homework on pumps and the type of pump they are going for has already been proven in the field with other water permits. Re: post 27342 by Sancler, the reliability of the pumps does not seem to be a permit issue. Anyway, how do we know for sure that these pumps won't deliver the required volume? I don't think there is a problem here.

[cyberbub] 30/11/2014 19:37

In terms of the pumping, I'm getting a bit confused because it seems like a catch-22.... the permit has been (preliminarily) awarded on the basis of a maximum extraction volume per minute or day or whatever... but the number of pumps isn't enough to reliably deliver that volume??? Why was it awarded then?

[rogerbridge] 30/11/2014 19:14

Thirded, that's if there is such a word, if not "here here"

[woodpeckers] 30/11/2014 18:16

It really does make you realise just how 'complicated' the research needed around this company is and why the analysts can't be bothered to try. Great to have people on this board who are prepared and who are capable of such brilliant research. We all owe you our thanks.