Power Line Task Force

2 Sunfish Lane

Sunfish Lake, MN 55118

To: Sunfish Lake City Council

From: Roger R. Conant, President, PLTF

Date: June 25, 2002

Re: Potential Appeal of Stacey Decision

This is to report upon last night’s meeting between the PLTF, impacted homeowners, and our attorney, Marshall Tanick.

Mr. Tanick told us an arbitrary and capricious finding requires an extremely high standard of proof, a standard we believe was clearly not met in the Sunfish Lake Case. Therefore, we concluded a key reason Sunfish Lake lost was that, by not specifically objecting to Xcel’s factual presentations, the City implicitly agreed to the facts as developed by Xcel. We believe the Xcel facts should have been disputed, given that Summary Decision hearings are only appropriate when there is agreement on the facts. By conceding the key facts to Xcel, the City conceded the case.

This is not hindsight. Before the hearing, we sent two memos to the attorney representing the city: one listing Xcel’s incorrect facts and another highlighting the factual problems in the City’s brief. These memos are posted on the PLTF website, www.powerlinefacts.com.

We therefore determine the case is winnable upon appeal if the facts are developed and presented properly. Accordingly, we have decided to take advantage of our intervenor status by appealing this case.

We will appeal irrespective of the City’s decision and would resist in court any settlement. However, it is our strong hope we will be joining Sunfish Lake in appealing the decision. The probability of prevailing is higher if we work together on this appeal.

We appreciate the city already has incurred substantial expenses relevant to this case. Accordingly, we will gladly reimburse the city for the uninsured portion of the legal fees it incurs in pursuing this appeal.

We understand that, if the city does appeal, it continues to be exposed to damage claims from Xcel. We believe the City’s insurance would provide meaningful protection from such claims. More fundamentally, it is not clear there are any damages. Xcel has dropped the western link in this project, implying it has low priority. That is why CAI’s engineer Dave Shafer in his letter to Frank Tiffany acknowledges there is no immediate need for the line by noting it only provides Xcel with the "future option" to build the link to Bloomington.” Furthermore, Xcel has long stated it cannot construct the line until the ground freezes, at which point the appeal process might be concluding. As an economist, I am keenly aware that, in this low-inflation environment, construction costs are stable. Therefore, there may be only a low risk of a damage claim.

Attached is the resume of our attorney, Marshall Tanick, together with an article he wrote on relevant issues. We will provide you tomorrow his analysis of the case. In addition, he will be present at tomorrow’s meeting. We hope you will ask him many penetrating questions.

In conclusion, we are appealing because we believe this case is winnable. We want very much to join the city in this effort.