STATE OF MINNESOTA DISTRICT COURT
COUNTY OF RAMSEY SECOND JUDICIAL DISTRICT

Power Line Task Force, File No. 62-C3-99-010952

Plaintiff,

vs.

Minnesota Environmental Quality Board,
Defendant,

and Northern States Power Company,

Intervenor-Defendant.

ORDER AND MEMORANDUM OF LAW

The above-entitled matter came before the Honorable Louise Dovre Bjorkman, Judge of the District Court, on December 11, 2000, on the Motion of Plaintiff Power Line Task Force for an Order reopening the judgment entered in this matter and remanding the environmental impact statement need determination back to the Minnesota Environmental Quality Board for consideration in light of newly discovered information,

Carol A Overland, Esq., 402 Washington Street South, Northfield, Minnesota 55057, represented Plaintiff.

Assistant Attorney General Dwight S, Wagenius, Suite 900, 445 Minnesota Street, St. Paul, Minnesota 55101, represented Defendant Minnesota Environmental Quality Board.

Michael C. Connelly, Esq., 800 Nicollet Mall, Minneapolis, Minnesota 55402, represented Intervenor-Defendant Northern States Power Company

The Court, being duly advised in the premises, and after hearing arguments of counsel and reviewing the memorandums and other supporting documents, the pleadings and all other matters of record, IT IS HEREBY ORDERED:

Plaintiff's Motion for New Trial/Relief from Judgment is hereby in all respects DENIED. Dated: 1/12/01 BY THE COURT:

Honorable Louise D Bjorkman

Judge of District Court

MEMORANDUM

Facts:

Northern Stares Power Company ("NSF") proposes to reconstruct a transmission line that passes through six cities in the southeastern part of the Metropolitan Area, from NSF's Red Rock Substation in Newport to the Rogers flake Substation in Mendota Heights, and on to the Wilson Substation in Bloomington.

The project is not large enough to require environmental review by the MEQB. However, pursuant to a citizen petition and with the cooperation of NSF, the MFQB Staff prepared an environmental assessment worksheet (EAW). Public comments and the ensuing discussions during the EAW process and before this Court focused on potential impacts from electric and magnetic fields (EME).

Although an EAW is not required to include a discussion of alternatives to the project proposed, as is an ErS, information regarding an alternative route was attached to the EAW. Information on alternatives was discussed with MEQB board members at meetings held on September 16 and November 18, 1999, to deliberate on whether an FIS was warranted.

At the end of the September 16 meeting, the Board rejected a motion for a positive declaration, i.e., ordering preparation of an EIS, seven voting against the motion and three for it.

Near the end of the November 18 Board meeting, a motion for a positive declaration again failed, this time with three Board members supporting the motion and ten voting against. A few minutes later, the MEQB board voted 10-3 not to require preparation of an EES.

On December 10, 1999, Plaintiff filed its Complaint in this Court seeking a declaratory judgment that an FIS be ordered on the project. NSP intervened. Plaintiff stated in its informational statement that discovery may be appropriate to determine if Intervenor NSP had failed to provide full information on the project to the MEQB£ This Court ordered on February 17 that discovery was available until May26. There is no evidence in the record of Plaintiff conducting any discovery

The parties filed cross-motions for summary judgment. On August 24, 2000, this Court issued its’ Order for judgment, finding that the MEQB made a deliberate, reasoned decision that is supported by the evidence. This Court granted the MEQB and NSF motions for Summary judgment and dismissed Plaintiff's Complaint. On September 7, 2000, this Court entered judgment dismissing Plaintiffs complaint.

The period for Plaintiff to file an appeal expired on or about November 6, 2000.

On November 27, 2000, Plaintiff requested that this Court reopen its judgment and remand the negative declaration on the need for an FIS back to the MEQB as provided under Minn. R. Civ. P.60.02 (b) claiming "newly discovered information."

In its memorandum, Plaintiff asserted two categories of newly discovered information. First, the Plaintiff cites to '4new information" concerning system alternatives that has been generated from NSP system information as a part of zoning processes currently under way by local authorities. Second, Plaintiff claims that there is "new information" in the form of four new studies regarding the potential health impacts of EMF. Law:

Plaintiff's motion relies on Minn. R. Civ. P.60.02 (b), which provides that the court may relieve a party from a final judgment for the reason of 'newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial."

Rule 60.02 can be utilized only if one of the grounds specified in the rules exists. Carter v Anderson, 554 N.W.2d 110, 113 (Minn. Ct. App. 1996). Rule 60.02 (b) does not provide for the introduction of evidence that was known to exist before judgment was entered. Stellivan V Spot Weld, Inc., 560 N.W.2d 712, 716 (Minn. Ct App 1997). A district court's record cannot be supplemented by new evidence after the court grants summary judgment. Ii In order for relief from judgment to be granted where there is newly discovered evidence, such evidence must be relevant and admissible at trial, must be likely to have an effect on the result of a new trial, and must not be merely collateral, impeaching, or cumulative. Regents of University of Minnesota V. Medical Inc., 405 N,W.2d 474, 478 (Minn. Ct. App. 1987) (citing Gruenhagen V. Larson, 246 N.W.2d 565, 569 (Minn. 1976); Vikse V. Flaby,316 N.W.2d 276, 284 (Minn. 1982). To require a new trial, the new evidence must be such that with diligence it could not have been found and produced at trial; diligence requires the use of available discovery toots as well as reasonable investigation efforts. Regents, 405 N.W.2d at 479, citing Brown V. Benrand, 254 Minn. 175, 185-185, 94 N.W.2d 543, 550 (1959). Further, the moving party must show that the evidence could not have been discovered through the exercise of due diligence before trial. Vikse, 316 N+W.2d at 284.

In summary, in order to reopen a judgment on these grounds, the moving party must show: (I) that there exists "new" evidence that existed at thc time of trial and that does not merely supplement evidence already in the record; (2) that the evidence, if it had been presented prior to judgment, would have been likely to affect the outcome of the case; and (3) that this new evidence could not have been discovered in time through due diligence.

Analysis:

Plaintiff has satisfied none of the applicable criteria. None of the "new" information meets legal criteria for "newly discovered evidence which by due diligence could not have been discovered" in the terms of Rule 60.02 (b). The remainder of this memorandum addresses the two asserted categories of alleged new information.

Alternatives. Alternatives are not at issue in the EAW process because evidence regarding alternatives is not relevant to the decision whether to order an BIS on a proposed project. Even though alternatives were discussed by the MEQB, discussion of alternatives does not raise the issue to legal relevance in the face of law that reserves consideration of alternatives to environmental impact statements. Minn. Stat. § 116D.04, subd. 2a. Alternatives to the proposed facility are not relevant considerations in determining whether an EIS should be ordered on a proposed facility.

The practical and legal result of the Board's decision was that NSP next went to the local units of government to seek appropriate approvals to proceed with its proposed facility. The Minnesota Power Plant Siting Act provides that the proposer of a facility that is exempt from the operation of that statute shall 4'comply with any applicable state rule and any applicable zoning, building and land use rules, regulations and ordinances or any regional, county, local and special purpose government." Minn. Stat. § 116C.57, subd. 5. The Board placed reliance on the proposed facility and any alternative routing being subject to those further approvals of local units of government.

Land use and zoning approval for the Project is proceeding before the representatives of the people most directly affected by the Project. The information gathered in the environmental review process is being used by the local units of government for, among other things, helping to define additional information they need to complete their tasks. Among the additional information defined in the local processes are Systems alternatives created by Commonwealth Associates and by the Midcontinent Area Power Pool ("MAPP"). The Commonwealth Associates' alternatives were identified and created by that entity between September and October of 2000 from NSP systems information. Alternatives that did not exist at the time of the earlier proceedings before this Court can not serve as the basis for imposition of Rule 60E02 (b) The newly discovered information posited as a basis for imposition of the rule must have existed at the time of trial. Brown v. Bertrand, 94 N.W.2d at 548 The Commonwealth Associates-created alternatives are thus not subject to the rule or a basis for granting the relief requested.

The MAPP alternative existed, was known by Plaintiff at the time of the proceeding before the MEQB, was discussed by the Board, and was subject to discovery if Plaintiff needed more information for purposes of the declaratory judgment action before this Court.

EMF Studies. Plaintiff has asked this Court to reopen the judgment for the MEQIR to consider four new studies regarding EMF. Three of the articles are truly new studies, so new they do not qualify as "newly discovered evidence" under Rule 60.02 (b). They were published in September and October 2000, after the matter had been submitted to the Court. Such new material does not qualify under the rule as "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial." Material that does not yet exist cannot be subject to discovery. Gruenhagen, 246 N.W.2d at 569.

None of Plaintiff's alleged new studies offers significant change to the EMF literature The studies are cumulative; they supplement but are not inconsistent with studies already known to the MEQB. The National Institute for Environmental Health Science ("NIEHS") Report itself, the basis for the MEQB's decision as regards EMP, acknowledges that research is continuing. Under Rule 60.02 (b), the new EMF studies provide no basis for granting Plaintiff's motion

Conclusion:

All of the new information offered by Plaintiff fails to satisfy one or more of the criteria of Rule 60.02 (b) The alternatives information is not relevant to the issue before the MEQB and the Court and thus not subject to the Rule. Three of the EMF studies did not exist at the time of trial and are thus not subject to the Rule. The fourth EMF study was available and could have been discovered and brought into the record. The EMF studies are cumulative with information in the record. None of the information would have likely affected the outcome of the case.

The Court denies Plaintiff's motion as failing to satisfy the criteria of Minn. R. Civ. P.60.02 (b).