STATE OF
IN COURT OF APPEALS
CASE NO. C3-02-1409
Power Line Task Force,
Inc.
Appellant
v.
Northern States Power
Company
d/b/a Xcel Energy, Inc. and
City of
Respondent
REPLY BRIEF OF APPELLANT AND SUPPLEMENTAL APPENDIX
TABLE OF CONTENTS
i.
A RECENT
HEALTH REPORT LEGITIMIZES THE CONCERNS ATTIBUTABLE TO EMF.
ii. THE TRIAL
COURT ERRED IN DIRECTING ISSUANCE OF A CUP
iii. THE COURT ABUSED ITS DISCRETION IN DISMISSING
THE CASE UNDER RULE 41.01(b)
iv. CONCLUSION
TABLE OF
AUTHORITIES
Cases
Altimus v.
Hyundai Motor Co., 578 N.W.2d 409, 411 (Minn.
Ct. App. 1998)
Erickson v. Bennett, 409 N.W.2d 884, 888 (Minn. Ct. App. 1987)
Lang v. William Bros Boiler & Mfg. Co., 85 N.W.2d 412, 418 (Minn. 1957)
Paulucci v.
City of Duluth, 826 F.2d 780, 783 (8th
Cir. 1987)
Snyder v. Minneapolis, 422 N.W.2d 747, 749 (Minn. Ct. App. 1988)
State ex. rel.
Howard v. Village of Roseville, 70 N.W.2d 404,
409 (Minn. 1955)
State v. Houghton, 213 N.W. 907, 909 (Minn. 1927)
Titmas v.
Superior Court, 87 Cal. App. 4th
738, 742 (2001)
TJX Companies, Inc. v. Superior Court, 87 Cal. App. 4th 747, 751 (2001)
Ullrich Newberg
Township Board, 648 N.W.2d 743 (
Statutes
Minn. Stat. §
216B.2421, Subd. 2(3)(2002
Supp.)
Rules
41.01(b) (multiple locations)
I.
A
RECENT HEALTH REPORT LEGITIMIZES THE CONCERNS ATTIBUTABLE TO EMF.
A party in a lawsuit is
entitled to have a say in whether and how the case is dismissed. The
Power Line Task Force, Inc. (“Task Force”), an Intervenor in this case, was
improperly denied that fundamental right. The preclusion has severe
consequences because the Task Force was correct and prescient in pointing out
the health hazards that will impact the City of Sunfish Lake due to the
Conditional Use Permit (CUP) for the new transmission line that is at issue in
this case.
This case revolves around the
ruling by the Dakota County District Court of the denial by the City of Sunfish
Lake of the CUP sought by Northern States Power Company, d/b/a Xcel Energy, Inc.
(Xcel), to replace an existing single-circuit power line running through the
community with a more intensive and intrusive double-circuit arrangement.
One of the reasons the City initially opposed the project was health concerns
associated with the increased health exposure to Electro-Magnetic Fields (EMF)
stemming from the new power line. Appellant’s App. 000025-26, 33.
A recently concluded study by
the California Department of Health Services validates these concerns.
The $7 million study, funded by the
·
up to a 95%
probability that increased exposure to EMF causes childhood leukemia,
·
up to 85% probability it
causes adult leukemia,
·
up to 80% probability it causes
adult brain cancer,
·
a 50% to 60% probability
it causes ALS, and,
·
a 50% to 60% probability
that it causes miscarriages. Supp. App. 005.[1]
These stark findings legitimize
the concern expressed by
The
Since it was not final until
mid-October, 2002, the California Report was not part of the administrative
record in this case. But a Spring 2001 draft of
the Report, which was before the Sunfish Lake City Council at the time
it denied the CUP, contained very similar conclusions to those in the final
Report. Appellant’s App. 000038. The final Report
demonstrates the concerns expressed by the Task Force and
Notwithstanding the
demonstrated and growing scientific evidence that exposure to EMF can be
dangerous, Xcel seeks to erect a new, expanded power line based upon its cozy settlement
with the City. Xcel and the City seek to prevent the Task Force from
contesting the propriety of the Trial Court’s misguided determination of
II.
THE TRIAL COURT ERRED IN DIRECTING ISSUANCE OF A
CUP
Xcel and the City spend barely
4% of their brief supporting the critical issue in this case: the Trial Court’s
overturning of the denial of the CUP and directing the CUP to be granted.
Respondents’ Brief, pp. 24-25. Respondents advance the conclusory statement that the mandamus Order “was correct
in all respects.” Ibid., at
25.
Respondents join the Trial
Court in mischaracterizing the underlying features of this case. Xcel did
not, as it maintains, seek government approvals to expand a “portion” of the
existing 14.7-mile single circuit transmission line. Respondents’
Brief, p. 3. It sought approval for the entire line, never
modifying or restricting its application to a lesser length. Appellant’s
App. 000030 (Finding No. 82).
Respondents also erroneously
describe the process by which the approval was sought.
Respondents incorrectly assert
that CAI “concluded” that the double-circuited power line “was needed.” Respondents’
Brief, p. 5. CAI reached no such conclusion, and, in fact, was
prohibited from doing so by the terms of its engagement. Rather, CAI
merely presented data suggesting that Xcel’s proposal had the best cost-benefit
ratio among those proposed. While a superior cost-benefit ratio may be of
prime importance to Xcel, there were other factors, including the line’s
deleterious impact upon health and property values, that
were relevant to the City as it reached its decision denying the CUP.
Furthermore, the cost-benefit analysis was prepared before Xcel verbally
announced its intent to reduce the line from 14.7 miles to 6.36 miles.
This announcement effectively invalidated the analysis, because the line would
no longer serve the same area as assumed in CAI’s calculations.
After its formal analysis was
invalidated, CAI submitted a letter to the City, Appellants App. 000044
(document no. 104), which justified a need because it would give Xcel
“flexibility.” However, this justification was purely ad hoc, not
based upon any analysis, and was correctly rejected by the City Council.
CAI never, as Respondents
claim, asserted that exposure to EMF would be reduced by close to 80%.
Further, the Trial Court failed
to take into account Xcel’s data as presented to the EQB, which showed that
future growth in the area would result in greater power usage and, therefore,
more exposure to EMF, rather than less. The City expressly took into
account this reasonably anticipated future growth, use and EMF exposure in its
denial of the CUP. Appellant’s App. 000025 (Finding No. 54).[3]
Xcel’s assertions regarding the
diminution of property values are mistakenly based on its contention that a
report done by Collier Towle conclusively determined
that there would be only nominal negative impact, not in excess of 1%, on
residential properties. Respondent’s Brief, p. 8. In fact,
Collier Towle’s analysis was negated by testimony
from Capital Appraisals that the data base used by Collier Towle
was inaccurate. Appellant’s App. 000011.[4]
Respondents’ contention that
the Task Force’s opposition to the expanded power line has been rejected by
three governmental agencies also is incorrect. Respondents’ Brief, p.
9. The Public Utilities Commission’s (PUC) 1999 rejection of a
proposal to remove the present power line had no bearing on the issue of
whether a new line should be built. Appellant’s Brief, p. 6.
The Environmental Quality Board (EQB) determined that it would not require Xcel
to fund an Environmental Impact Statement, but made no determination on Xcel’s
proposal, instead deferring the issue to “local control, including conditional
use permits.” The EQB specifically noted that the local entities could,
if they chose, reject the line. Appellant’s App. 000027 (Finding
No. 67). Finally, the Minnesota Department of Health had no official
role in the proceeding, although Jan Malcolm, the Commissioner of the
Department, writing as a member of the EQB, expressed concern “[f]rom a public health standpoint … about the level of
magnetic field exposure (EMF) to which certain residents are now and will
continue to be subject.” Appellant’s App. 000027 (Finding No. 66).
The issue of need for the line
also was addressed and rejected by the City Council. Xcel’s contention
that virtually no one contested the need for the project is wrong. Respondents’
Brief, p. 9. The Task Force presented evidence to the City
Council, including the testimony of the highly qualified engineering firm, MSB
Associates, that there was no need for this project. Appellant’s.
App. 000038 (item no. 26F).
The evidence Xcel proffered in
support of need all dealt with the 14.76 mile project. But Xcel never
received the statutorily-required Certificate of Need from the PUC for a power
line of the capacity more than 100 kV and more than 10 miles in length.
Thus, there was ample evidence
in the record substantiating each of the three grounds relied upon by the City
Council in rejecting the CUP last February: lack of proven or
statutorily-required need, diminution of property values, and health concerns
relating to increased exposure to EMF. Appellant’s App. 000019-33.
Therefore, the Trial Court was mistaken in deciding that the City Council’s
decision was “arbitrary, capricious, and unreasonable.”
It is not possible to conceive
of a process less arbitrary, capricious, or unreasonable. The assertion
of arbitrariness is belied by the intensity of the council’s consideration of
Xcel’s application. The Council considered the application over three
long meetings at which it received testimony from Xcel and opponents. It
further based its decision upon the unanimous recommendation of the City’s
Planning Commission, which also had reviewed this issue over two lengthy
sessions in which it received extensive testimony favoring and opposing the
power line expansion.
The City Council’s decision was
far from capricious. Essentially, the same question considered by the
III.
THE COURT ABUSED ITS DISCRETION IN DISMISSING THE CASE UNDER RULE 41.01(b)
A
party in a lawsuit is entitled to have a say in whether and how a case is
dismissed. The Task Force, an Intervenor below, was improperly
denied that right. Respondents predicate their position in support of the
dismissal below by fabricating a Catch-22 situation. The Trial Court’s
mandamus decision undeniably resulted in the subsequent settlement between Xcel
and the City, leading to issuance by the City of the contested CUP.
Indeed, the settlement agreement itself expressly references the mandamus
ruling as a predicate for the settlement and for the agreed-upon issuance of
the CUP. Appellant’s App. 000133 (¶ 7).
But with stunning circularity,
Respondents maintain this settlement moots review of the mandamus decision,
which prompted the settlement in the first instance. In short, their
position is that the mandamus ruling of May 31st cannot be reviewed
because of the subsequent settlement, which would not have occurred but for the
mandamus decision.
This fabrication was
necessarily predicated upon the inappropriate, systematic and effective
exclusion of the Task Force from the litigation process. The Task Force,
as an Intervenor in this case, has a “distinct right to participate in the
litigation as a co-equal party.” Lang v. William Bros Boiler &
Mfg. Co., 85 N.W.2d 412, 418 (
When presented with a proposed
Stipulation of Dismissal, signed by Xcel and the City, and not joined in
by the Task Force, the Trial Court’s obligation was to dismiss the lawsuit only
upon such terms as are “proper.” Rule 41.01(b). In this case, the
Trial Court did not consider any terms or conditions to be
“proper.” Rather, it gave its unhesitating and unconditional approval,
accompanied by the exhortation to “get on with it,” to the settlement drafted
by Xcel and the City. Appellant’s App. 000179 (line 10).
Rather than imposing “proper” conditions upon the dismissal to protect the
rights of the Intervenor, the Trial Court blatantly acted as a cheerleader for
the efforts by Xcel and the City to prevent this appeal. Appellant’s
App. 000167 (lines 19 – 23).
This is contrary to the proper
role of the Trial Court in considering a dismissal under Rule 41.01(b).
The Rule, modeled after the Federal equivalent, is intended “primarily to
prevent involuntary dismissals which unfairly affect the other side, and to
permit the imposition of curative conditions.” Alamnce
Industries v. Filene’s, 291 F.2d 142, 146 (1st Cir., 1961), cert. denied, 368 U.S. 831 (1961).
The Task Force timely objected
to the proposed dismissal. Nevertheless, the Trial Court signed the
dismissal on
Respondents’
reliance upon this court’s decision in Thompson
v. Northern Realty Inc., No. C6-96-2267, 1997 Minn. App.
LEXIS 416 (Minn. Ct. App. April 8, 1997) (unpublished) is misguided.
Respondents’ Brief, p. 22. That case differs from the
present action because, when one of the two defendants in Thompson allied
with the plaintiff, the counterclaim of the remaining defendant was “not
unresolved.” 1997 Minn. App. LEXIS at 4 (Supp. App. 000012) (emphasis
added). But in this case, the effect of the City’s aligning with Xcel and
entering into a settlement agreement did not resolve the issue of the propriety
of the May 31st mandamus Order. That issue has not been passed
on by this Court, and, unlike the Thompson case, remains
unresolved.
The acknowledged purpose of the
Xcel-City arrangement was to preclude the Task Force from challenging the
mandamus ruling which predicated the subsequent settlement. Appellant’s
App. 00016. The Trial Court did nothing to protect the rights of the
Task Force as Intervenor.
The factors cited by
Respondents for evaluating the propriety of the Rule 41.01(b) dismissal
demonstrate that the Task Force’s opposition was appropriate as a matter of
law. Altimus
v. Hyundai Motor Co., 578 N.W.2d 409, 411 (Minn. Ct. App. 1998), See
also, Paulucci
v. City of Duluth, 826 F.2d 780, 783 (8th Cir.
1987). The first factor, consideration of the other party’s effort
and expense, cuts in favor of the Task Force. The Task Force spent an
immense amount of time and effort in the municipal proceedings, including
extensive participation at the numerous hearings at the Planning Commission and
City Council meetings; obtained legal counsel to represent its interests as
Intervenor in the Trial Court proceedings; and has retained separate counsel to
represent it in this appeal, which has been time-consuming and expensive.
These efforts will go for naught if the dismissal is upheld and the Task Force
is not allowed to seek appellate review of the mandamus ruling.
The second 41.01(b) factor
also favors the Task Force, as it has not engaged in any delay or lack of
diligence in pursuing its rights. It timely sought and was granted the
right to intervene in the Trial Court proceedings; it promptly opposed the
dismissal below; and rapidly challenged the dismissal before this Court.
The remaining factors proffered
by Respondents for the dismissal are also insufficient. No work has yet
been done on the project, which leaves ample time for temperate judicial review
of the mandamus ruling of May 31st. If that ruling is
overturned, the settlement and ensuing CUP can be set aside or rescinded.
Finally, the Task Force did join the City, which at the time was its ally, in
seeking summary judgment, although the Trial Court neglected to rule upon its
cross-motion.
The appropriate application of
the Rule 41.01(b) factors demonstrate that the Trial Court abused its
discretion in dismissing the lawsuit so as to bar the Task Force from obtaining
appellate review of the mandamus Order upon which the settlement and subsequent
dismissal were predicated. The Trial Court should have refrained from
dismissing the lawsuit, while entering judgment on the mandamus order, thereby
allowing the mandamus ruling to be appealed to
this Court, as the Task Force now seeks to do. This would have been a
“proper” exercise of Rule 41.01(b), in lieu of the unconditional dismissal.
Litigation is not moot if a court is able to grant effectual relief. In re Schmitt, 443 N.W.2d 824, 826 (
Ullrich provides
a roadmap for handling this case. In Ullrich,
a land use applicant petitioned for mandamus after his application was denied
by a township. The Trial Court granted the petition and ordered mandamus
without entry of judgment. The township appealed from the Order.
This Court reviewed the history of mandamus proceedings, which was marked by
uncertainty and confusion, noting “there has been little uniformity in the way
the parties have sought review by appellate courts in mandamus
proceedings.” The Court noted that case law had allowed appeals from both
a mandamus order without a judgment and only from a judgment itself.
After reviewing the historical inconsistencies, the Ullrich Court
concluded that because the mandamus statute, Minn. Stat.
§ 586.09, and case law called for a judgment to be entered if a writ of
mandamus is granted, the appropriate procedure was to enter judgment upon a
writ of mandamus. Because that had not been done by the lower court, the Ullrich Court allowed the appeal to proceed
from the order granting mandamus, complemented by a directive to the
administrator of the lower court to enter judgment on that order to dispel any
doubts about appealability.
The same approach should be followed here. The mandamus Order should have
been converted into a judgment when entered last May, pursuant to Minn. Stat. §
586.09. That oversight can easily be rectified here, as in Ullrich, by directing the Trial Court administrator
to enter judgment below. Following this procedure would allow the
mandamus Order to be addressed by this Court, a process clearly contemplated by
the Special Term Panel. Appellant’s App. 207-8. While
dismissing a direct appeal of the mandamus ruling, that Panel kept alive the
potential for appealing the mandamus decision by directing that the Panel in
this case “decide whether the May 31 [mandamus] Order should be reviewed in the
context of [this] appeal.”
The answer is that it should be
so reviewed. It will afford the only opportunity for this Court to
determine whether the Trial Court erred in its determination in overturning the
City Council’s denial of the CUP. The Task Force did not acquiesce in the
proceedings below, was prevented by the Trial Court from participating in
arguments or briefing when it was allowed it the right to intervene, and then
bypassed by the parties and the Court below, when the case was dismissed.
Nor did the Task Force consent
to the settlement that led to the dismissal. It was not a signatory to
the settlement. The remarks made by counsel for the Task Force at the
hearing objecting to the dismissal are taken out of context by
Respondents, Respondents’ Brief, p. 17), and actually
reflect the Task Force’s view that it has very limited prospects for
successfully appealing the settlement if the Trial Court’s mandamus decision is
impervious to review under the traditional standard. The purpose of the
Rule 41.01(b) hearing was to determine whether the case would be
dismissed, not to contest the reasonableness of the settlement. The Task
Force maintained at all times that it wished to appeal the mandamus
ruling. As counsel for the Task Force told the Court below: “[W]e are
very concerned if the case were to be dismissed with prejudice, it could have
some impact on our ability of the intervenors to
appeal your determination, which we respectfully wish to do.” Appellant’s
App. 000167 (lines 3-7).
The reason the City was driven
to settle with Xcel was because of the Trial Court’s mandamus ruling, Appellant’s
App. 000133. Respondents’ contention that a “good faith” settlement
cannot be challenged does not address the issue in this case. Respondents’
Brief, p. 20. Litigants surely are entitled, indeed encouraged, to reach
settlements, but they cannot do so in a way that subverts another party’s right
to participate fully in the litigation, including the appellate process.
This appeal is predicated upon
the mandamus Order, which the Task Force has consistently maintained was
erroneous and should be subject to judicial review. Respondents’
assertion that the Task Force is not prejudiced by allowing the case to be
dismissed because it can start a new lawsuit challenging the CUP is
disingenuous,
The Task Force’s only realistic
alternative is to have this Court review the mandamus ruling. If that
ruling is reversed, the explicit predicate for the settlement will no longer
exist. This could result in recision of the CUP, which was issued upon a
faulty premise that the mandamus Order was final and binding. State ex. rel. Howard
v. Village of Roseville, 70 N.W.2d 404, 409 (
This Court can furnish
effectual relief to the parties in this appeal by reversing the dismissal
below, directing the entry of judgment on the mandamus pursuant to the Ullrich case, and then reviewing the merits of
that determination. If the Court determines that the ruling was
erroneous, as it ought to do, the mandamus ruling should be reversed. The
City may then wish to reconsider the settlement since the expressed predicate
for it, the mandamus ruling, is no longer in effect. The City could choose
to adhere to the settlement, or it could rescind the settlement and reinstate
the original denial of the CUP. That determination, of course, is not
currently before the Court and may or may not occur, depending upon future
developments.
For the above reasons, the
Court should reverse the Judgment of Dismissal, direct the Dakota County Trial
Court Administrator to enter judgment on the mandamus ruling of
MANSFIELD, TANICK & COHEN,
P.A.
Dated:
Marshall H. Tanick (108303)
Stephen H. Parsons (84219)
1700 Pillsbury Center South
(612)
339-4295
and:
LAW OFFICE OF CHRISTOPHER
THOMAS JOHNSON
Christopher Thomas
Johnson (0303744)
P.O. Box 86
(612) 386-8743
ATTORNEYS FOR APPELLANT
POWER LINE TASK FORCE,
INC.
INDEX
TO SUPPLEMENTAL APPENDIX TO APPELLANT’S REPLY BRIEF
1.
Executive Summary, An Evaluation of the
Possible Risks From Electric and
Magnetic Fields (EMFs) From Power
Lines, Internal Wiring, Electrical
Occupations and Appliances . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . pp. 001-006
2.
“Xcel Lawyers Did Study // Independent Third Party Is Utility’s Law
Firm,”
St. Paul Pioner Press, October 9,
2002, page C1 . . . . . . . . . . . . . . . . . . . . . . . pp.007-008
3.
Thompson v. Northern Realty, 1997
App. LEXIS 416 (unpublished),
300866
[1]
“Appellant’s App.” refers to Appellant’s Appendix submitted with Appellant’s
Brief; “Supp. App.” refers to the Supplemental Appendix attached hereto.
[2]
The other basis for denial of the CUP by the City last February included
diminution of property values and lack of proven need for the project, or a
Certificate of Need, as required by the Public Utilities Commission. See
Appellant’s Brief, pp. 42-46.
[3] CAI’s lack of real “independence” from Xcel parallels
recent revelations of Xcel proffering of supposedly detached third-parties who
are not “independent” at all. It was reported a few weeks ago that Xcel’s
assurance to the Public Utilities Commission that “an independent third-party”
had concluded that the company did not furnish fraudulent figures regarding
reliability and power outages to the state. It then was revealed that the
“independent third-party” was none other than Xcel’s own paid outside law firm
which has a long history of advocacy on behalf of the utility company. See
David Haner, “Xcel Lawyers Did a Study,”
[4]
Respondents’ scoffing at “last-minute” letters by real estate agents reflecting
a diminution of value is a mischaracterization. Respondents’ Brief,
p. 8. The letters were introduced as part of the City’s consideration of
the matter, and were neither early nor late in the proceedings. Further,
even the nominal 1% decline in property values suggested by Collier Towle would have significant impact, a diminution of
property values in the community of more than $1 million, for an average of
about $4,000 per each of the 251 residences in the community. Appellant’s
App. 000019.