Proposed Conclusions of Law

The above-entitled matter came on for Plaintiff’s Motion for Summary Judgment and Defendant’s Motion to Dismiss before the undersigned, a Judge of the above-named Court, on September 15, 2003, at the Dakota County Judicial Center, City of Hastings, State of Minnesota.

Richard Morgan, Esq. and Emily Murphy, Esq., appeared on behalf of the Plaintiff, Power Line Task Force, Inc. (“Power Line”). Jack Perry, Esq. appeared on behalf of the Defendant, Northern States Power Company d/b/a Xcel Energy (“Xcel”).

PROCEDURAL HISTORY

Plaintiffs contend that Summary Judgment under Minnesota Rule of Civil Procedure, 56.01, should be granted to Power Line as there exists no disputed issue of material fact that Defendant’s proposed Southeast Metro Transmission Line project is a 115 kV line exceeding ten (10) miles in length on which construction had not begun prior to August 1, 2001. As proof of these facts, Power Line relies upon various documents produced by Defendant Xcel, describing the nature and length of the proposed transmission line, including petitions, applications, maps, reports and letters. Plaintiffs argue that after August 1, 2001, a public utility like Xcel must apply for and obtain a route permit from the Minnesota Environmental Quality Board as defined by Minnesota State Statute Section 116C.57 before constructing a 115 kV transmission line. Further, Plaintiff’s argue that Xcel must apply for and obtain a Certificate of Need from the Minnesota Public Utilities Commission as defined by Minnesota State Statute Section 216B.243 before constructing a 115 kV transmission line at least ten miles in length after August 1, 2001.

Defendant Xcel denies that the law requires it to apply for a Certificate of Need or Route Permit, arguing the Southeast Metro Transmission Line is less than ten miles in length because construction of the line would occur in two (2) phases each less than ten miles in length. Later, in an October 7, 2003 memo to the Court, Xcel claimed construction began on one of the phases of the line prior to August 1, 2001, citing the construction of a cement block on which to store heavy equipment at the Red Rock substation located at the end of the Southeast Metro Transmission Line project.

In Defendant’s Motion to Dismiss, it claims that applications to local cities for zoning permits and Conditional Use Permits related to the Southeast Metro Transmission Line satisfy the legal requirements for a Certificate of Need and Route Permit because the zoning applications and Conditional Use Permits were made prior to August 1, 2001.

After fully considering the oral and written arguments of counsel, exhibits submitted, and applicable law, the Court makes the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. The Minnesota Environmental Rights Act under Minnesota State Statute Section 116B.01, provides that an entity may maintain a civil action in the name of the State of Minnesota for protection of the air, water, land or other natural resources within the state from pollution, impairment or destruction.

2. The Minnesota Legislature passed two laws requiring approval and review of certain high-voltage transmission lines by the Minnesota Public Utilities Commission and the Minnesota Environmental Quality Board. Under Minnesota State Statute 216B.243, a public utility must apply for and obtain a Certificate of Need from the Minnesota Public Utilities Commission prior to the construction of any 115 kV transmission line exceeding ten miles in length. Under Minnesota State Statute Section 116C.57, a public utility must apply for and obtain a route permit from the Minnesota Environmental Quality Board prior to the construction of any 115kV transmission line.

3. The parties do not dispute that these two laws became effective August 1, 2001 and that Xcel is a public utility.

4. It is also undisputed that prior to the August 1, 2001 changes in the above-cited laws, Xcel would not have been required to apply for either the Certificate of Need or the Route Permit.

5. Both parties agree that the proposed Southeast Metro Transmission line is a 115 kV line.

6. Xcel’s documents indicate that the proposed Southeast Metro Transmission Line project is a 14.7 mile transmission line extending from Red Rock Substation, Stockyards Substation, Rogers Lake Substation, the Airport Substation and the Bloomington and Wilson Substations. These documents include reports, affidavits, petitions, letters, applications and maps.

7. A petition dated August 13, 2001 submitted by Xcel to compel the City of South Saint Paul to issue a Conditional Use Permit for the Southeast Metro Transmission Line project, states that construction “will now begin in late fall of 2001.”

8. Xcel’s documents show that a concrete slab used to store heavy equipment was constructed at the Red Rock substation prior to August 1, 2001. The Red Rock Substation is a substation located at the end of the Southeast Metro Transmission Line route. The Red Rock substation serves eight different transmission lines.

9. As indicated by a letter sent to homeowners dated October 10, 2003, Xcel has begun construction on the Southeast Metro Transmission Line.

10. Xcel has never applied to the Minnesota Public Utilities Commission for a Certificate of Need before beginning construction on the Southeast Metro Transmission Line.

11. Xcel has never applied to the Minnesota Environmental Quality Board for a Route Permit before beginning construction on the Southeast Metro Transmission Line.

12. In 2002, the Minnesota Legislature considered adding language to Minnesota State Statute Section 216B.243, subdivision 8, the exemption paragraph for Certificates of Need, exempting transmission lines of 115kV more than ten miles in length for which an application had been approved by or was pending before at least one local unit of government on August 1, 2001. The Legislature never enacted this provision into law.

13. The “application has been approved by or was pending before at least one local unit of government on August 1, 2001” language relied upon by Xcel applies to a separate statutory provision concerning public utility projects, commonly called the Priority List statute, Minnesota State Statute Section 218B.2425.

14. Defendant Xcel did not apply to all local units of government affected by the proposed upgrade of the Southeast Metro Transmission Line project prior to August 1, 2001. It is undisputed that Xcel did not apply to a .8 mile section of the project in Inver Grove Heights.

15. A February 21, 2002, letter to non-party Great River Energy from John Hynes using Minnesota Environmental Quality Board letterhead gave an opinion exempting a separate project proposed by Great River Energy from the Route Permit statute because the project “was begun” prior to August 1, 2001.

16. The above-referenced letter does not address the issue of when or whether construction began on the exempted Great River Energy proposed project for the purpose of Minnesota State Statute Section 116C.52, subsection 3.

17. Minnesota State Statute Section 116C.02, subdivision 6, states that members of the Minnesota Environmental Quality Board may not delegate their powers and responsibilities as board members to any other person.

CONCLUSIONS OF LAW

1. Xcel’s documents established that the proposed Southeast Metro Transmission Line is an 115kV line extending 14.7 miles.

2. Xcel’s documents established that construction did not begin on the proposed Southeast Metro Transmission Line until after August 1, 2001, the effective date of Section 216B.243 and Section 116C.57.

3. A document provided by Xcel regarding the construction of a slab of concrete at the Red Rock substation is not proof of construction on the Southeast Metro Transmission Line, but rather proof of construction at a substation. According to Minnesota State Statute Section 116C.52, subdivision 8, a “route” is “the location of a high voltage transmission line between two end points.” The Red Rock Substation is the end point of the Southeast Metro Transmission Line according to Xcel’s own documents. Construction at a substation is construction at a “site”, or “the location of a large electric power generating plant” as described under Minnesota State Statute Section 116C.52, subdivision 9. The statutory scheme separates “site” construction from construction on a transmission line “route.”

4. No legislative language exempting proposed high voltage transmission line projects that had applications pending before at least one local unit of government before August 1, 2001 is found in Sections 216B.243 or 116C.57.

5. Legislative language exempting proposed high voltage transmission line projects that had applications pending before at least one local unit of government before August 1, 2001 is found only in Minnesota State Statute Section 216B.2425, the Priority List Statute. 6. The Priority List statute is a different statute than the Certificate of Need or Route Permit statutes. It is undisputed that the Southeast Metro Transmission Line project is not covered by the Priority List Statute.

7. Therefore, Xcel cannot rely upon the “application has been approved by or was pending before at least one local unit of government on August 1, 2001” language found in the Priority List statute under section 216B.2425 to the Certificate of Need statute under section 216B.243 or the Route Permit statute under section 116C.57. Indeed, as to the Inver Grove Heights section of the line, no application was involved.

8. Applications made by Xcel to local cities for zoning permits for zoning issues related to the Southeast Metro Transmission Line are separate and distinct applications and do not exempt Xcel from applying for and receiving a Certificate of Need or Route Permit under sections 216B.243 and 116C.57 respectively.

9. The February 21, 2002 letter to Great River Energy from John Hynes has no force and effect because the letter indicates a staff member opinion rather than a board ruling as required under Minnesota State Statute Section 116C.02, subdivision 6.

10. Furthermore, the February 21, 2002 letter from John Hynes does not address the issue of when construction began, an essential element required by both sections 216B.243 and 116C.57.

11. Therefore, the Minnesota Public Utilities Commission and the Minnesota

Environmental Quality Board have never issued formal findings that Xcel is exempt from applying for and obtaining a Certificate of Need or a Route Permit for the proposed Southeast Metro Transmission Line.

12. Under section 216B.243, Xcel must apply to the Minnesota Public Utilities Commission for a Certificate of Need prior to beginning construction on the Southeast Metro Transmission Line.

13. Under section 116C.57, Xcel must apply to the Minnesota Environmental Quality Board for a Route Permit prior to beginning construction on the Southeast Metro Transmission Line.

14. Defendant Xcel admits that they have not yet applied to either the Minnesota Public Utilities Commission or the Minnesota Environmental Quality Board for the above-required permits.

15. The aim of the environmental legislation found in Minnesota State Statutes Sections 116C.51 to 116C.69, enacted to complement the Minnesota Environmental Rights Act under section 116B.01, was to harmonize the need for electric power with the equally important need for environmental protection. Floodwood-Fine Lakes Citizens Group v. Minnesota Environmental Quality Council, 287 N.W. 2d 390, 397 (1979).

16. Section 216B.243 and Section 116C.57 are part of environmental legislation enacted to ensure that a public utilities’ proposed changes in electrical power are compatible with environmental concerns in Minnesota State Statute 116B.01.

17. Defendant’s failure to obtain the permits required by sections 216B.243 and 116C.57 has prevented the Minnesota Public Utilities Commission and the Minnesota Environmental Quality Board from reviewing Xcel’s proposed changes to the Southeast Metro Transmission Line.

18. Therefore, Defendant’s failure to obtain the permits required by Sections 216B.243 and 116C.57 violates the Minnesota Environmental Rights Act under Minnesota State Statute Section 116B.01.

19. Xcel’s entry upon the private property of Power Line representatives to begin construction of the Southeast Metro Transmission Line prior to applying for and obtaining the requisite permits under Minnesota State Statutes Sections 216B.243 and 116C.57 is a trespass and invasion of privacy.

20. Power Line is the prevailing party as defined by Minnesota Rule of Civil Procedure 56.01.

ORDER FOR JUDGMENT

Based upon the Findings of Fact, Conclusions of Law and all the files, records and proceedings herein,

IT IS HEREBY ORDERED:

1. Plaintiff’s Motion for Summary Judgment under Minnesota Rules of Civil Procedure, Rule 56.01, is hereby granted and judgment is entered on behalf of Power Line Task Force.

2. Defendant’s Motion to Dismiss is hereby dismissed.

LET JUDGMENT BE ENTERED ACCORDINGLY.

BY THE COURT:

________________________________________

Karen Asphaug

Judge of District Court

Dated this ______ day of November, 2003