Establishing Certain Territorial Elec. Boundaries Within South Dakota, Matter of

• Decision Date: 07 April 1982
• Docket Number: 13508,Nos. 13506,F-3111,s. 13506
• Parties: In the Matter of ESTABLISHING CERTAIN TERRITORIAL ELECTRIC BOUNDARIES WITHIN the State of SOUTH DAKOTA (Aberdeen City Vicinity) ().
• Court: South Dakota Supreme Court

Page 118

318 N.W.2d 118

In the Matter of ESTABLISHING CERTAIN TERRITORIAL ELECTRIC

BOUNDARIES WITHIN the State of SOUTH DAKOTA

(Aberdeen City Vicinity) (F-3111).

Nos. 13506, 13508.

Supreme Court of South Dakota.

Argued Feb. 24, 1982.

Decided April 7, 1982.

Merle D. Lewis and Alan D. Dietrich, Huron, Raymond M. Schutz of Siegel, Barnett, Schutz, O'Keefe, Jewett & King, Aberdeen, for appellant Northwestern Public Service Co. in No. 13506.

William A. Bowen of Rice & Bowen, Aberdeen, for appellant Northern Electric Cooperative, Inc. in No. 13508.

S. Walter Washington, Asst. Atty. Gen., Pierre, for respondent South Dakota Public Utilities Commission.

DUNN, Justice.

This case involves the establishment of territorial boundaries for electric utilities in the Aberdeen vicinity. It is before us on appeal for the second time, and we refer to our prior decision for a further statement of the facts. See Matter of Certain Territorial Elec. Boundaries, Etc., 281 N.W.2d 72 (S.D.1979), hereinafter cited as Aberdeen Vicinity.

In Aberdeen Vicinity, we determined that the electric lines in the entire disputed area were intertwined. We remanded the matter, therefore, to the Public Utilities Commission (PUC) to determine service area boundaries in accordance with our decision and the statutory guidelines set forth in SDCL 49-34A-44.

On May 15, 1980, the PUC made assignments of territory to Northwestern Public Service Company (NWPS) and Northern Electric Cooperative, Inc. (NEC) without receiving additional testimony. The PUC assigned approximately 29 1/2 square miles of the disputed territory to NEC and 20 1/2 square miles to NWPS, based on the June 22, 1976 recommendations of Willis Jongerius, a consultant engineer from Rock Rapids, Iowa. NWPS appealed to circuit court from the decision and order of the PUC. NEC requested a rehearing with the PUC, which request was denied. NEC then appealed to circuit court. These appeals were consolidated and the circuit court affirmed the decision of the PUC. NWPS (# 13506) and NEC (# 13508) appeal separately from the order of the circuit court. We affirm.

NEC contends that the appeal of NWPS should be dismissed as untimely because it was not from a final agency decision. We disagree. The PUC entered its decision and order on May 15, 1980. Thirty days later NWPS filed a notice of appeal to the Sixth Judicial Circuit and on the same day NEC filed an application for rehearing with the PUC. Five days later the PUC denied the request for rehearing and NEC subsequently filed a notice of appeal to the Fifth Judicial Circuit. NEC claims that the agency decision was not final until its request for rehearing was denied.

In part, SDCL 1-26-30 provides:

A person who has exhausted all administrative remedies available within any agency or a party who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter. If a rehearing is authorized by law or administrative rule, failure to request a rehearing will not be considered a failure to exhaust all administrative remedies and will not prevent an otherwise final decision from becoming final for purposes of such judicial review.

Under this statute, NWPS's notice of appeal was filed in a timely manner within thirty days after the PUC entered its decision and order. It was not necessary for NWPS to request a rehearing for the purpose of exhausting all administrative remedies, because under the statute the failure to request a rehearing does not prevent an otherwise final decision from becoming final for purposes of judicial review. NWPS filed its notice of appeal on the same day that NEC filed its application for rehearing with the PUC. Since the application for rehearing was not pending at the time NWPS filed its notice of appeal, we find that the appeal by NWPS was filed in a timely manner.

The United States Supreme Court in American Farm Lines v. Black Ball, 397 U.S. 532, 90 S.Ct. 1288, 25 L.Ed.2d 547 (1970), was confronted with a similar situation, wherein the Interstate Commerce Commission (ICC) granted an application to provide temporary operating authority to a single-line motor carrier service. Petitions for reconsideration were filed and before they were passed upon, some carriers filed suit. The rehearing was subsequently granted. In determining whether the ICC had the power to grant a rehearing while the matter was pending before the District Court, the Supreme Court noted that in multi-party proceedings some of the parties may seek judicial review and others may seek administrative reconsideration. "The concept 'of an indivisible jurisdiction which must be all in one tribunal or all in the other may fit' some statutory schemes, ibid., but it does not fit this one." 397 U.S. at 541, 90 S.Ct. at 1293-94, 25 L.Ed.2d at 554. See also United States v. Benmar Transp. & Leas. Corp., 444 U.S. 4, 100 S.Ct. 16, 62 L.Ed.2d 5 (1979). Our statutory scheme leaves it to each litigant's choice to determine whether they will seek judicial review under SDCL 1-26-30.2 or administrative reconsideration under SDCL 49-34A-61.1 of a final agency decision. If the petition for rehearing is granted, judicial review may be deferred until the petition has been acted upon, B. J. McAdams, Inc. v. I.C.C., 551 F.2d 1112 (8th Cir. 1977); Outland v. C.A.B., 284 F.2d 224 (D.C.Cir.1960), or the appeal may be remanded to the agency, Anchor Line Limited v. Federal Maritime Commission, 299 F.2d 124 (D.C.Cir.1962), cert. denied, 370 U.S. 922, 82 S.Ct. 1563, 8 L.Ed.2d 503 (1962).

NEC contends that the trial court erred in denying its affidavit for change of judge. The affidavit alleged that NEC could not have a fair and impartial determination of its appeal before Judge Miller. Under SDCL 15-12-22, a judge may be disqualified if a party to an action files a timely affidavit. The right to change a judge, however, is subject to SDCL 15-12-24, which provides:

The submission to a judge or magistrate of argument or proof in support of a motion or application, or upon trial, is a waiver of the right thereafter to file an affidavit for change of such judge or magistrate by any party or his counsel who submitted the same or who after notice that such matter was to be presented, failed to appear at the hearing or trial. Such waiver shall continue until the final determination of the action and includes all subsequent motions, hearings, proceedings, trials, new trials, and all proceedings to enforce, amend or vacate any order or judgment.

The matter presently before Judge Miller was the continuation of the litigation previously before him in 1977 and this court on appeal in Aberdeen Vicinity, supra. Our prior decision in this matter remanded the case to the PUC for assignment of the disputed areas. We stated that: "Such assignment shall be made by the PUC, based on its findings, in accordance with this decision." 281 N.W.2d at 77.

Our decision in Aberdeen Vicinity, supra, indicates that the remand was not made for the purposes of constituting a new proceeding, but, to the contrary, was a part of and continuation of the original action. See In re Estate of Scheibe, 35 Wis.2d 89, 150 N.W.2d 427 (1967); Luedtke v. Luedtke, 29 Wis.2d 567, 139 N.W.2d 553 (1966). We hold that NEC waived its right to request a change of judge when it initially submitted to the jurisdiction of Judge Miller in the 1977 proceeding.

NEC contends that the findings of fact and conclusions of law adopted by the PUC were unsupported by substantial evidence on the whole record and were arbitrary or capricious. NWPS contends that the PUC erred in its application of the guidelines of SDCL 49-34A-44 in assigning the disputed territory. We disagree with both of these contentions.

When the initial application was heard, SDCL 1-26-36 provided as follows: ^*

The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Unsupported by substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

The term "substantial evidence" means such relevant and competent evidence as a reasonable mind might accept as being sufficiently adequate to support a conclusion[.]" SDCL 1-26-1(8). The fact that there may be substantial evidence in the record to support findings contrary to those made by the agency is not a reason for reversal. Rather, the inquiry is whether the record contains substantial evidence to support the agency's determination. Nehlich v. S. D. Comprehensive Health, 290 N.W.2d 477 (S.D.1980); Dail v. South Dakota Real Estate Com'n, 257 N.W.2d 709 (S.D.1977). In reviewing on appeal the circuit court's judgment under the South Dakota Administrative Procedures Act (SDCL ch. 1-26), we must make the same review of the administrative agency's action as does the circuit court, unaided by a presumption that the circuit court's decision is correct. Matter of Gannon, 315 N.W.2d 478 (S.D.1982); Devericks v. John Morrell & Co., 297 N.W.2d 325 (S.D.1980).

This court in Aberdeen Vicinity, supra, directed the PUC to determine service area boundaries for the disputed territory according to the guidelines of SDCL 49-34A-44. Those guidelines are as follows:

(1) The proximity of existing distribution lines to such assigned territory, including the length of time such lines have been in existence;

(2) The adequacy and dependability of existing distribution lines to...