In Re Wilmarth Line of the C U Project

299 N.W.2d 731, 1980 Minn. LEXIS 1632
CourtSupreme Court of Minnesota
DecidedNovember 7, 1980
Docket50911
StatusPublished
Cited by3 cases

This text of 299 N.W.2d 731 (In Re Wilmarth Line of the C U Project) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Wilmarth Line of the C U Project, 299 N.W.2d 731, 1980 Minn. LEXIS 1632 (Mich. 1980).

Opinions

TODD, Justice.

This matter arises out of eminent domain proceedings brought by the respondents Cooperative Power Association (CPA) and United Power Association (UPA) and was previously before this court. See Co-op. Power Ass’n v. Eaton, 284 N.W.2d 395 (Minn. 1979).

In that case, we found that appellant landowners had not been given an adequate opportunity to present evidence concerning the public necessity for the condemnation proceedings. We found that additional evidence must be taken relative to the adequacy of notice originally given in the certificate of need proceedings for the C U Project and consolidated all cases in various counties relating to proposed condemnations in the area of the Wilmarth segment of the proposed transmission system. We designated certain issues to be determined by the trial court and appointed a three-judge panel to hear the evidence and decide the questions presented. The panel found that the notice given relative to the certificate of need proceedings was adequate, that [733]*733appellants’ offer of proof did not present sufficient evidence which could materially affect the original decision of the Minnesota Environmental Agency (MEA) to issue the certificate of need, and found that appellants had not been guilty of laches even though they had not raised the notice issue until the commencement of these condemnation proceedings.

The appellant landowners appealed from the first two determinations of the trial panel and respondents filed a notice of review on the issue of laches. We conclude that the determination of the trial panel that there was adequate notice of the need proceedings is incorrect and remand with instructions.

This case is a culmination of a long and bitter controversy over the construction of an electrical generating plant at Underwood, North Dakota, known as the Coal Creek Station, and over the transmission system used in delivering the output of that plant to CPA and UPA facilities. The initial case before this court was No Power Line v. Minn. Environmental Quality, 262 N.W.2d 312 (Minn. 1977). That case involved the corridor and siting proceedings in the segment of the transmission system from the Minnesota border to the conversion station at Delano, Minnesota, known as the Dickinson Substation. In that original litigation, we stated:

In our judgment the need for additional electric power was so clear that the order in which the hearings were held was of no practical significance. This belief is confirmed by the fact that during the course of oral argument before this court none of the appellants seriously argued that the electrical energy to be supplied by this project was unnecessary.

Id. at 326. The concurring opinion in that case points out that the litigants and the state agencies assumed that there was a need for the facilities which were the subject of the action, and that, therefore, the need question was not litigated and was not before us. Id. at 332. Thus, it is apparent that this court has never directly passed upon the issue raised by the appellants; namely, was there proper notice given at the time of the original certificate of need hearings?

In our previous opinions, we have recited in detail the factual background of the present litigation. Those facts will not be repeated herein except as they relate to the issues presented. We do note, however, that the practicalities of the situation dictate that we focus on need only as it affects a third AC line, since the transmission system for which the original certificate of need was issued is now in place and operating except for the Wilmarth segment.

The history of the statutes applicable to this case is helpful in evaluating the issues presented. Prior to 1973, there were no statewide statutory requirements concerning electrical generating or distribution facilities. Electrical utilities made determinations based on their own interests and were granted the power of condemnation to effectuate those interests. The adoption of the Minnesota Environmental Protection Act on May 19,1973, and subsequent enactments thereafter, have been discussed in detail in our No Power Line case. See id. at 323-24.

An examination of these statutes discloses a legislative attempt to systematically evaluate electrical energy needs and other energy needs within this state and to adopt an orderly system of fulfilling those needs in a manner that is compatible with environmental and resource considerations.

The power companies involved herein filed an application for a certificate of need on October 6, 1975. At that time, corridor proceedings on the segment of the transmission system from the Minnesota border to the Dickinson Substation were in progress. These corridor proceedings were initiated prior to the need proceedings, in that instance, because the statutory certificate of need requirement was not passed until 1974 and did require the promulgation of regulations until September 15, 1975. See Minn.Stat. § 116H.13 (1978 & Supp. 1979). The statute contemplates that certificate of need hearings are of a general nature and deal with broad determinations [734]*734of public energy needs, the available resources for satisfying those needs, and the desirability of or necessity for additional generating or transmission systems. Minn. Stat. § 116H.13, subd. 3 (Supp. 1979); see 6 MCAR § 2.0611(C). These proceedings may or may not be site specific, but the determination, of need is not dependent on or related to specific sites. Site specific determinations are relegated to route proceedings since corridor-type proceedings have been statutorily abandoned. See Minn.Stat. § 116C.57 (1978).

The determination regarding need must be “facility specific,” however. That is, the utility must satisfy the Energy Agency of the need for any specifically proposed facility which qualifies as a “large energy facility” under Minn.Stat. § 116H.02, subd. 5 (Supp. 1979).1 That conclusion is compelled by the language of the certificate of need legislation and the Energy Agency regulations. In assessing need for a proposed facility, the director of the Energy Agency must consider, among other things, the “relationship of the proposed facility to overall state energy needs”; “[promotional activities which may have given rise to the demand for this facility“[s]ocially beneficial uses of the output of this facility, including its uses to protect or enhance environmental quality”; and the “effects of the facility in inducing future development.” Minn.Stat. § 116H.13, subd. 3(3), (4), (5), (6) (Supp. 1979) (emphasis added). Likewise, Energy Agency regulations require the director, in passing on a utility’s application for a need certificate, to consider “the appropriateness of the size, type and timing of the proposed facility * * *.” 6 MCAR § 2.0611(C)(2)(a) (emphasis added). The Wilmarth Line constitutes a large energy facility under the statute, being 76 miles in length and having a capacity of 345 kilo-volts. The statutory language indicates that the legislature intended that the Energy Agency, in determining need, consider the need for the specific proposed facility.

The route determination proceedings were commenced in this case in February 1976.

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Related

In Re Condemnation Proceeding for the Wilmarth Line of the CU Project
380 N.W.2d 127 (Court of Appeals of Minnesota, 1986)
In Re Wilmarth Line of the C U Project
299 N.W.2d 731 (Supreme Court of Minnesota, 1980)

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Bluebook (online)
299 N.W.2d 731, 1980 Minn. LEXIS 1632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-wilmarth-line-of-the-c-u-project-minn-1980.