Hempstead County Hunting Club v. Ark. Pub. Serv. Comm'n

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Cite as 2010 Ark. App. 553 ARKANSAS COURT OF APPEALS EN BANC Nos. CA09-283, CA09-304, & CA09-385 Opinion Delivered JULY 28, 2010 DONALD R. JOHNSON, MARY D. JOHNSON, and CHARLES MICHAEL TURNER APPELLANTS V. ARKANSAS PUBLIC SERVICE COMMISSION and SOUTHWESTERN ELECTRIC POWER COMPANY APPEALS FROM THE PUBLIC SERVICE COMMISSION [NO. 08-001-U, 08-002-U, & 08-098-U] NO. CA09-283 APPELLEES AND WILLIS B. SMITH, JR., and PATTY F. SMITH APPELLANTS V. ARKANSAS PUBLIC SERVICE COMMISSION, SOUTHWESTERN ELECTRIC POWER COMPANY, and AMERICAN ELECTRIC POWER COMPANY APPELLEES NO. CA09-304 AND HEMPSTEAD COUNTY HUNTING CLUB, INC., SCHULTZ FAMILY MANAGEMENT COMPANY, PO-BOY LAND COMPANY, INC., YELLOW CREEK CORPORATION, SCHULTZ FAMILY LIMITED PARTNERSHIP, NO. CA09-385 Cite as 2010 Ark. App. 553 MARY O’BOYLE, and F. PATRICK SCHULTZ APPELLANTS V. ARKANSAS PUBLIC SERVICE COMMISSION and SOUTHWESTERN ELECTRIC POWER COMPANY REMANDED APPELLEES PER CURIAM On November 21, 2007, the Arkansas Public Service Commission (Commission) entered Order No. 11 in Docket No. 06-154-U granting Southwestern Electric Power Company (SWEPCO) a Certificate of Environmental Compatibility and Public Need (CECPN) for construction and operation of a coal fire baseload electric generation facility in Hempstead County, Arkansas (the Turk Plant). That decision was appealed to this court in Hempstead County Hunting Club, Inc. v. Ark. Pub. Serv. Comm’n, CA08-128. While the Turk Plant appeal was pending, the Commission, in separate dockets, granted SWEPCO additional CECPNs to build transmission lines related to the Turk Plant. The granting of these CECPNs were then appealed to this court in Donald R. Johnson v. Ark. Pub. Serv. Comm’n, CA09-283; Willis B. Smith, Jr. and Patty Smith v. Ark. Pub. Serv. Comm’n, CA09-304; and Hempstead County Hunting Club, Inc. v. Ark. Pub. Serv. Comm’n, CA09-385. Afterwards, the parties to these appeals filed various motions to consolidate appeals, to separate -2- Cite as 2010 Ark. App. 553 jointly filed appeals, and they sought stays on briefing schedules until their motions were decided. Decisions on these motions were held over by us until the appeal in the Turk Plant was decided, although stays were granted for the filing of briefs in CA09-283 and CA09-304 and, at the Commission’s request, for the filing of the record in CA09-385. On June 24, 2009, this court reversed the CECPN granted to SWEPCO for the Turk Plant in Hempstead County Hunting Club, Inc. v. Arkansas Public Service Commission, 2009 Ark. App. 511, ___ S.W.3d ___. Thereafter, the supreme court granted the appellees’ petition for review of this decision in Docket No. 09-71. In an opinion handed down May 13, 2010, the supreme court reversed the CECPN for construction of the Turk Plant and affirmed as modified the opinion of this court. See Hempstead County Hunting Club, Inc. v. Ark. Pub. Serv. Comm’n, 2010 Ark. 221, ___ S.W.3d ___. With the reversal of SWEPCO’s CECPN for the Turk Plant, appellants in two of the pending appeals have now filed emergency motions to stay the CECPNs previously granted to SWEPCO for transmission lines for the Turk Plant. SWEPCO and the Commission oppose these motions. The motions now pending in this court for disposition are: CA09-283 -Separate appellants Donald R. Johnson and Mary D. Johnson’s emergency motion to stay CECPN, filed July 6, 2010, with responses filed by SWEPCO and the Commission. CA09-283 - Separate appellants Donald R. Johnson and Mary D. Johnson’s motion to withdraw emergency motion to stay CECPN, filed July 15, 2010. CA09-283 - Appellants’ motion to consolidate appeals CA08-128 and CA09-283. -3- Cite as 2010 Ark. App. 553 (Held over.) CA09-283 - Appellants’ motion to withdraw motion to consolidate with CA08-128, filed July 15, 2010. CA09-304 - Appellants’ motion to consolidate CA09-304 with CA09-283 and CA08128. (Held over.) CA09-385 - Appellants’ emergency motion to stay CECPN, filed July 8, 2010, with responses filed by SWEPCO and the Arkansas Public Service Commission. CA09-385 - Appellants’ motion to file reply to appellees’ response, filed July 21, 2010. CA09-385 - Appellees’ joint motion to separate Arkansas Public Service Commission dockets filed jointly on appeal with response and amended response filed by appellants. (Held over.) In consideration of the supreme court’s decision in Hempstead, we hereby remand the abovelisted motions and the orders granting the CECPNs that are being appealed in CA09-283, CA09-304, and CA09-385 to the Arkansas Public Service Commission for determination of whether the Hempstead decision nullifies the CECPNs granted in these appeals and for such further orders as the Commission deems necessary. Remanded. -4-

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