Power Line Task Force, Inc., on its behalf and on behalf of the State of Minnesota, Appellant, vs. Northern States Power Company, d/b/a Xcel Energy, Respondent.

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 This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-144

 

Power Line Task Force, Inc.,

on its behalf and on behalf of

the State of Minnesota,

Appellant,

 

vs.

 

Northern States Power Company,

d/b/a Xcel Energy,

Respondent.

 

Filed November 23, 2004

Appeal dismissed; motion granted

Harten, Judge

 

Dakota County District Court

File No. C7-03-9371

 

Richard G. Morgan, David S. Miller, Keesha M. Gaskins, Emily A. Murphy, Bowman & Brooke, LLP, 150 South Fifth Street, Suite 2600, Minneapolis, MN 55402 (for appellant)

 

Kerry Koep, (of counsel) Assistant General Counsel, Xcel Energy, U.S. Bancorp Center, 800 Nicollet Mall, Suite 2900, Minneapolis, MN 55402; and

 

Jack Y. Perry, Thomas E. Bailey, Briggs and Morgan, P.A., 2200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge; Harten, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

           

            Appellant, an incorporated group of residents and homeowners of three communities, challenges the summary judgment granted to respondent power company holding that respondent did not need approval from the Public Utilities Commission and the Environmental Quality Board to upgrade the power line running through the communities.  Respondent moves to dismiss this appeal as moot and to strike the portion of appellant's reply brief that raises a new issue on appeal.  We hold that this appeal is moot and dismiss it, and we grant the motion to strike.

FACTS

Appellant Power Line Task Force, Inc. (PLTF) is a non-profit corporation made up of homeowners and residents of three communities: Sunfish Lake, Mendota Heights, and South St. Paul.  Respondent Northern States Power Company, d/b/a Xcel Energy (Xcel), is a public utility corporation.  Their present dispute began when Xcel announced plan to upgrade the 6.36-mile segment of its line that runs from the Red Rock substation to the Rogers Lake substation.  Xcel planned to upgrade the 115 kilovolt, single-circuit power line to a double-circuit line, using steel poles about 25 feet higher than the existing wooden poles, in the communities of Newport, Inver Grove Heights, Mendota Heights, South St. Paul, and Sunfish Lake.

Early in 1999, Xcel began seeking local approval from the communities.  Newport and Inver Grove Heights approved the upgrade.  In March 1999, Xcel applied to Mendota Heights for a Conditional Use Permit (CUP).  N. States Power Co. v. City of Mendota Heights, 646 N.W.2d 919, 921 (Minn. App. 2002), review denied (Minn. 15 Sept. 2002).  This court found Xcel's application was automatically approved by operation of Minn. Stat. § 15.99, subd. 2 (2000).  Id. at 926.  In May 2001, Xcel applied to South St. Paul for a CUP.  South St. Paul effectively denied the CUP by requiring that the line be placed underground, but in October 2001 the district court approved a settlement whereby South St. Paul granted a CUP without that requirement.  In November 2001,  Xcel applied to Sunfish Lake for a CUP.  Sunfish Lake initially denied the application; later the issue was resolved through settlement, which the district court approved.   N. States Power Co. v. City of Sunfish Lake, 659 N.W.2d 271, 275 (Minn. App. 2003) (dismissing as moot PLTF's appeal from the district court's refusal to enter judgment on a mandamus order when it approved the settlement and dismissed the action), review denied (Minn. 25 Jun. 2003). 

In March 2003, PLTF brought this action in Hennepin County District Court, alleging violation of the Minnesota Environmental Rights Act, nuisance, trespass, and invasion of privacy, all premised on the contention that Xcel failed to obtain a Public Utilities Commission (PUC) certificate of need pursuant to Minn Stat. § 216B.243 (2002) and an Environmental Quality Board (EQB) route permit pursuant to Minn. Stat. § 116C.57 (2002).  Hennepin County District Court granted Xcel's motion to change venue to Dakota County District Court, which heard the parties' summary judgment motions, granted Xcel's motion, and denied PLTF's motion. 

PLTF noticed its appeal and moved for an extension of time to file its brief.  During that interval, Xcel completed construction of the upgraded line.  Thereafter, Xcel moved to dismiss the appeal as moot.  In its reply brief, PLTF for the first time cited Minn. Stat. § 116C.68 (2002) and argued that Xcel was held to a strict compliance, not a substantial compliance, standard in regard to Minn. Stat. § 116C.57 and Minn. Stat. § 116C.576 (2002). 

On appeal, PLTF challenges the summary judgment and Xcel moves to dismiss the appeal as moot and to strike the portion of PLTF's reply brief that argues an issue for the first time. 

D E C I S I O N

1.         Mootness

The doctrine of mootness restricts an appellate court to hearing only live controversies.  Chaney v. Minneapolis Cmty. Dev. Agency, 641 N.W.2d 328, 331-32 (Minn. App. 2002) (dismissing as moot an appeal of a discharged notice of lis pendens when the property had been transferred to a bona-fide purchaser), review denied (Minn. 28 May 2002).  When an appellate court cannot grant effectual relief, an issue is moot.  Id. at 332.  An action is also moot if the personal interest that must exist to confer standing at the commencement of an action does not continue.  See id. at 332 ("The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." (citation omitted)).

PLTF, which defines itself as a "not-for-profit corporation made up of and representing the interests of homeowners and residents of the cities of Sunfish Lake, Mendota Heights and South St. Paul," brought this action seeking an order requiring Xcel to obtain an EQB route permit and a PUC certificate of need and enjoining Xcel from upgrading its power line through Sunfish Lake, Mendota Heights, and South St. Paul until these items were obtained.  Both parties moved for summary judgment.  Xcel was granted summary judgment and began upgrading the line, which has now been completed.  The relief PLTF seeks on appeal is not clear: reversing the summary judgment would have no effect on the completed upgrade of the power line.  

PLTF argues that, "[t]his court should not countenance Xcel's statutory violations which are intentional and ongoing."  But issues that exist only hypothetically in the future are not justiciable.  State v. Murphy, 545 N.W.2d 909, 917 (Minn. 1996) (dismissing as not ripe for review an incarcerated inmate's challenge to the conditions of his eventual probation).  Nor does an appellate court issue advisory opinions or decide cases merely to establish precedent.  State v. Arens, 586 N.W.2d 131, 132 (Minn. 1998).  By asking this court to address Xcel's alleged "ongoing" violations in other communities, PLTF asks it to issue an advisory opinion. 

Moreover, PLTF does not have standing to litigate Xcel's activities in communities other than Sunfish Lake, Mendota Heights, and South St. Paul because PLTF will not be injured by such those activities.  A litigant must allege injury in fact, or otherwise have a sufficient stake in the outcome, to have a court decide the merits of a dispute.  Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 433 (Minn. App. 1995), review denied (Minn. 31 May 1995).  PLTF has no stake in this court's decisions on Xcel's alleged ongoing violations in other communities.

We dismiss this appeal as moot.  But even if the appeal were viable, it would not succeed, as set forth below.

2.         The EQB Route Permit

When the district court grants summary judgment based on the application of statutes to undisputed facts, the result is a legal conclusion, reviewed de novo by the appellate courts.  Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn. 1998).

a.         Effective date

            PLTF argues first that Xcel did not comply with Minn. Stat. § 116C.57, subd. 2, (2002), providing that "[n]o person may construct a high voltage transmission line without a route permit from the board."  The statute was part of the 1973 Power Plant Siting Act, which defined a high voltage transmission line as "capable of operation at a nominal voltage of 200 kilovolts or more."  Minn. Stat. § 116C.52, subd. 4 (2000).  Xcel's transmission line had a capacity of 115 kilovolts, so Minn. Stat. § 116C.57,  subd. 2,  did not apply to its construction. 

            In 2001, the legislature amended the Power Plant Siting Act by defining a high voltage transmission line as "designed for and capable of operation at a nominal voltage of 100 kilovolts or more."  Minn. Stat. § 116.52C, subd. 4 (2002).  PLTF argues that the amended statute applies to Xcel's 115-kilovolt line.  But the amendment is "effective for certificates of need and route and site permits applied for on or after August 1, 2001."  Minn. Laws 2001 ch. 212, art. 7, § 37.  Xcel's application for permits therefore predated the effective date of the amendment, and the amendment does not apply.[1]

"When two or more amendments to the same provision of law are enacted at the same or different sessions, one amendment overlooking and making no reference to the other or others, the amendments shall be construed together, if possible, and effect be given to each."  Minn. Stat. § 645.33 (2002).  PLTF would have us apply the amendment made by Minn. Laws 2001 ch. 212, art. 7, § 1,  defining a high voltage transmission line as a line over 100 kilovolts, but ignore the amendment made by  Minn. Laws 2001 ch. 212, art. 7, § 37, making that effective only for lines applied for on or after 1 August 2001.  Such a construction is prohibited.  Minn. Stat. § 116C.57, subd. 2, does not apply.

b.         Substantial Compliance

            "If local approval is granted, a site or route permit is not required from the [EQB]."  Minn. Stat. § 116C.576, subd. 1(a) (2002); see also No Power Line, Inc., v. Minn. Envtl. Quality Council, 262 N.W.2d 312, 317 (Minn. 1977) (noting that construction of a power line to which the Power Plant Siting Act did not apply required permit from local authorities).  Xcel chose to obtain local approval.  The district court found that

37.     . . . Xcel Energy has substantially complied with the alternative to a Route Permit pursuant to Minn. Stat. § 116C.576i.e. local zoning approval.

 

38.     As mandated for statutory requirements having no consequence for non-compliance, Xcel Energy only had to "substantially comply" with Minn. Stat. § 116C.576.  Sullivan v. Credit River  Township, 299 Minn. 170, 176-77, 217 N.W.2d 502, 507 (1974); Manco of Fairmont, Inc. v. Town Bd. of Rock Dell Township, 583 N.W.2d 293, 295 (Minn. Ct. App., 1998).

 

39.     Xcel Energy more than substantially complied with the requirements of Minn. Stat. § 116C.576.

 

As a threshold matter, PLTF argues for the first time in its reply brief that substantial compliance is not the appropriate standard because Minn. Stat. § 116C.68 (2002) provides consequences for non-compliance with Minn. Stat. § 116C.51-.69 (2002).  Xcel moved to strike this argument from the reply brief.  See Minn. R. Civ. App. P. 128.02, subd. 3, ("The reply brief must be confined to new matter raised in the brief of the respondent").[2]  We grant the motion to strike.

We note, moreover, that PLTF not only failed to raise this argument earlier; it both implicitly and explicitly argued the opposite, i.e., that substantial compliance is the appropriate standard, to the district court in its briefs and at the hearing and to this court
in its principal brief.  A party may not "obtain review by raising the same general issue litigated below but under a different theory."  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Moreover, the primary issue here is whether Minn. Stat. § 116C.57 or Minn. Stat. § 116C.576 applies; deciding whether substantial compliance is the appropriate standard would not resolve the controversy.  See Watson v. United Services Auto. Ass'n, 566 N.W.2d 683, 687 (Minn. 1997) (appellate court may base its decision on a theory not presented to the district court if that theory is "plainly decisive of the entire controversy on its merits" (citation omitted)).

            PLTF challenges the finding of substantial compliance on four grounds.  First, PLTF claims the district court erred in relying on "the [environmental] ‘review' of the Line by various zoning authorities" because the review conducted did not meet the standards of Minn. Stat. § 116C.576. The record refutes this claim.  Minn. Stat. § 116C.576 provides that one of the local governmental units will be appointed to conduct an environmental review.  On 4 April 2000, Mendota Heights, Sunfish Lake and South St. Paul created a steering committee to conduct an independent environmental review of Xcel's proposal to upgrade the line.  The steering committee selected Commonwealth Associates to conduct the review, and Xcel paid over $130,000 for it.  On 3 January 2001, Commonwealth provided its report.  Its study encompassed (1) Xcel's proposed design; (2) five alternative routes; (3) the use of highway right of way; (4) the crossing of the Minnesota river; (5) potential environmental effects including effect on residential property values; (6) the color of the poles; (7) the effect on wetlands; and (8) the effect on the Dodge Nature Center.  The Commonwealth environmental review found no proposal more advantageous than the Xcel proposal. 

Second, PLTF argues that an environmental review "must include an environmental impact statement (EIS)."  But in November 1999, the EQB, which has jurisdiction over such projects, decided "that the proposed Southeast Metro 115 kV Transmission Line Project does not have the potential for significant environmental effects and issue[d] a negative declaration on the need for an environmental impact statement."  PLTF unsuccessfully challenged the EQB decision in district court.

Third, PLTF argues that Xcel obtained its CUP's not as a result of the environmental review but through district court action. But the decision to involve the courts was not Xcel's; the communities were free to grant CUP's independently, but chose not to do so.

Fourth, PLTF argues that some citizens never received the notification mandated by the statute.  But PLTF does not specify who these citizens were or why the notification did not reach them. 

PLTF fails to provide a basis for reversing the summary judgment on the basis of a route permit.

3.         The PUC Certificate of Need

The 1973 Power Plant Siting Act provided that "[n]o large energy facility shall be sited or constructed in Minnesota without the issuance of a certificate of need by the [PUC] commission . . ."  Minn. Stat. § 216B.243. subd. 2 (2002).  A "large energy facility" then included "any high voltage transmission line with a capacity of 200 kilovolts or more and with more than 50 miles of its length in Minnesota; or, any high voltage transmission line with a capacity of 300 kilovolts or more with more than 25 miles of its length in Minnesota."  Minn. Stat. § 216B.2421, subd. 2(2) (2000).  In 2001 this statute was amended to include "(2) any high-voltage transmission line with a capacity of 200 kilovolts or more; [and] (3) high voltage transmission line with a capacity of 100 kilovolts or more with more than ten miles of its length in Minnesota."  Minn. Stat. § 216B.2421, subd. 2 (2002); Minn. Laws 2001 ch. 212, art. 7, § 29.  Again, the amendment applied to "certificates of need . . . applied for on or after August 1, 2001."  Minn. Laws 2001 ch. 212, art. 7, § 37.  

The district court found that:

16.       The Certificate of Need requirement is inapplicable in this case.  The Certificate of Need requirements only applies to transmission line projects that are at least 10 miles long.  Minn. Stat. § 216B.2421, subd. 2(3).  Xcel Energy's local zoning applications for its "phase one" upgrade were for upgrade to a transmission line less then 10 miles in length, i.e., 6.36 miles.

 

17.       In order to trigger the Certificate of Need requirement, PLTF seeks to expand Xcel Energy's proposal to the full 14.7-mile length of its southeast metro line.  Xcel Energy has not sought the approval of the remaining 8.34-mile "phase two" segment of the Southeast Metro line from the Rogers Lake Substation in Mendota Heights to the three substations in Bloomington.  Approval of "phase two" is not the subject of this case.

 

PLTF contends that "[t]he only issue . . . is whether the trial court erred in concluding as a matter of law that because Xcel constructed the Line in two ‘phases,' it is not a unified entity over 10 miles long requiring PUC approval."  But the phases were determined by the location of substations, not arbitrarily: the phase one line goes from the Red Rock substation to the Rogers Lake substation.  PLTF claims that "[e]ach time Xcel sought approvals from state or local entities from 1999 to 2003, Xcel represented the Line as a unified entity."  The record refutes this claim: Xcel's CUP applications to South St. Paul and Sunfish Lake refer to the 6.36-mile phase one upgrade as a separate entity, as do forms relating to the construction in South St. Paul and Mendota Heights.  Finally, PLTF relies on three documents to assert that "Xcel considered the Line a single unified entity with two phases of construction."  PLTF's reliance is misplaced. Two of the documents were prepared in connection with the EIS litigation. "Multiple projects and multiple stages of a single project that are connected actions or phased actions must be considered in total when determining . . . the need for an EIS."  Minn. R. 4410.1000, subp. 4 (2001); Minn. R. 4410.2000, sub. 4 (2001).  Therefore, those documents were required to refer to both phases of the project.  The third document on which PLTF relies concerned crossing a protected water and is irrelevant.

PLTF provides no basis for reversing the summary judgment.

            Appeal dismissed; motion granted.

 


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Xcel did not apply for a permit to upgrade the 1.268-mile Sunfish Lake portion of the line until November 2001, but the district court found that this portion of the line was not an independent project but rather part of a route that had already been applied for, as route was defined in Minn. Stat. § 116C.52, subd. 8 (2002), and PLTF does not challenge this finding on appeal.

[2] This court has repeatedly refused to address issues first raised in a reply brief.  See, e.g., Huston v. Comm'r of Employment and Econ. Dev., 672 N.W.2d 606, 612 (Minn. App. 2003) (striking section of reply brief that asserted claim for the first time); State v. Bergerson, 671 N.W.2d 197, 205 n.6 (Minn. App. 2003) (striking section of reply brief that raised argument not raised to trial court); Wood v. Diamonds Sports Bar & Grill, Inc., 654 N.W.2d 704, 707 (Minn. App. 2002) (striking section of reply brief pertaining to issue raised in statement of the case but not discussed in main brief); In re Silicone Implant Ins. Coverage Litig., 652 N.W.2d 46, 63 (Minn. App. 2002) (declining to consider argument made for the first time in a reply brief), rev'd on other grounds, 667 N.W.2d 405 (Minn. 2002); Braith v. Fischer, 632 N.W.2d 716, 724  (Minn. App. 2001) ("argument fails because [it] appears for the first time in [appellant's] reply brief, and is therefore not properly before us"), review denied (Minn. 24 Oct. 2001); Swarthout v. Mut. Serv. Life Ins. Co., 632 N.W.2d 741, 748 (Minn. App. 2001) (rejecting question in reply brief not mentioned in brief on the merits); Shepherd of the Valley Lutheran Church v. Hope Lutheran Church, 626 N.W.2d 436, 443 (Minn. App. 2001) ("argument fails [because] . . . issues not raised or argued in an appellant's brief cannot be revived in a reply brief"), review denied (Minn. 24 Jul. 2001); Zimmerman v. Safeco Ins. Co. of America, 593 N.W.2d 248, 251 (Minn. App. 1999) (holding that party had waived issue raised in reply brief by not raising it in principal brief).