Northern States Power v. Federal Transit Admin.
| Decision Date | 20 February 2004 |
| Docket Number | No. 03-1517.,03-1517. |
| Citation | 358 F.3d 1050 |
| Parties | NORTHERN STATES POWER COMPANY, doing business as Xcel Energy, Plaintiff-Appellant, v. FEDERAL TRANSIT ADMINISTRATION; Defendant, Minnesota Department Of Transportation; Elwyn Tinklenberg, Commissioner of Transportation, individually and officially; Minnesota Metropolitan Council; State of Minnesota, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Timothy Robert Thornton, argued, Minneapolis, Minnesota (Thomas J. Basting, Jr, on the brief), for appellant.
Donald J. Mueting, argued, for appellees Minnesota Department of Transportation, Elwyn Tinklenberg, and State of Minnesota.
Lewis A. Remele, Jr., argued, (Charles E. Lundberg, Andrew L. Marshall, and Jessica Mason Piekklo, on the brief), for appellee Minnesota Metropolitan Council.
Before WOLLMAN, LAY, and RILEY, Circuit Judges.
The Minnesota Department of Transportation ("MnDOT") ordered Northern States Power, doing business as Xcel Energy ("Xcel"), to relocate its underground utility facilities beneath Fifth Street in downtown Minneapolis to make way for the Hiawatha Light Rail Transit project ("LRT"). Xcel filed suit for declaratory and injunctive relief, contesting MnDOT's authority to give such an order and asserting that it was entitled to the costs of relocation of its facilities. The district court dismissed Xcel's claims against all Defendants on summary judgment, holding that MnDOT had the authority to order relocation and that Xcel must pay for the relocation of its utility facilities. Xcel appeals, and we affirm.
Xcel supplies electricity to the City of Minneapolis ("City"). Many of the facilities necessary for the distribution of electricity to downtown consumers are located beneath Fifth Street. Xcel's right to use Minneapolis streets for its facilities is secured by a Franchise Agreement with the City. Xcel pays the City over $15 million per year for the franchise.
The LRT is an 11.6 mile light rail train project connecting downtown Minneapolis the Minneapolis/St. Paul International Airport, and the Mall of America, a large-scale commercial shopping center located in the nearby suburb of Bloomington, Minnesota. The downtown section of the LRT route includes a portion of Fifth Street. MnDOT, a state agency, is responsible for design and construction of the project. Upon completion, the LRT will be owned and operated by the Minnesota Metropolitan Council ("Met Council"), a public corporation and political subdivision of the state. The LRT project will cost an estimated $675.4 million, $334 million of which is to be funded by the Federal Transit Administration ("FTA"), an agency within the United States Department of Transportation.
In order to accommodate the LRT, Xcel's Fifth Street facilities needed to be relocated. On November 29, 2000, MnDOT ordered Xcel to submit a plan and schedule for relocation of its facilities within thirty days, cautioning that all relocation work must be completed by February 1, 2002. Although the thirty-day deadline was later extended, Xcel did not submit a plan to relocate. Instead, Xcel filed suit in federal district court1 against the FTA, the Met Council, MnDOT, the State of Minnesota, and the Commissioner of MnDOT, Elwyn Tinklenberg. Xcel's Complaint alleged that: 1) the FTA was required by law to submit a supplemental Environmental Impact Statement, reflecting MnDOT's intention to "pave over" Xcel's facilities; 2) MnDOT, Met Council, and Tinklenberg violated Xcel's procedural due process, substantive due process, and equal protection rights, and also effected an unconstitutional taking; 3) MnDOT, Met Council, and Tinklenberg violated Xcel's right to reimbursement under the Franchise Agreement and Minn.Stat. § 161.46; and 4) MnDOT's order to relocate was an invalid exercise of state power.
Thereafter, in order to keep the LRT project on schedule, the Defendants moved for a preliminary injunction to compel Xcel to relocate its facilities in one part of Fifth Street. The district court granted the injunction, N. States Power Co. v. Fed. Transit Admin., Civ. No. 01-295, 2001 WL 1618532 (unpublished), and this court upheld the decision on appeal. N. States Power Co. v. Fed. Transit Admin., 270 F.3d 586 (8th Cir.2001).2
Following discovery, all Defendants moved for summary judgment. On September 10, 2002, the district court granted summary judgment, dismissing all of Xcel's claims. The district court held that: 1) Xcel's claim against the FTA was moot because the facility relocation was either completed, or in the process of being completed, and therefore there was no longer a threat that MnDOT would "pave over" Xcel's facilities; 2) MnDOT had the authority to exercise the state's police powers to order Xcel to relocate its facilities; 3) neither Minn.Stat. § 161.46 nor the Franchise Agreement provided for reimbursement under these circumstances; 4) Xcel failed to plead the issue of whether MnDOT's regulations were unreasonable; 5) Xcel's constitutional claims were without merit; and 6) the Eleventh Amendment barred claims against MnDOT Commissioner Tinklenberg.
Xcel now appeals the following issues from the district court's grant of summary judgment: 1) that its Franchise Agreement with the City establishes a right to reimbursement; 2) that MnDOT lacks the authority to exercise the state's police powers to order Xcel to remove its facilities; 3) that its Complaint satisfied notice pleading requirements, asserting MnDOT's regulations were unreasonable; 4) that its due process and takings claims are valid; and 5) that its claims against Commissioner Tinklenberg are not barred by the Eleventh Amendment.
We review the district court's grant of summary judgment de novo. Girten v. McRentals, Inc., 337 F.3d 979, 981 (8th Cir.2003). We must view the record in the light most favorable to Xcel, and give Xcel the benefit of all reasonable inferences. Viking Supply v. Nat'l Cart Co., 310 F.3d 1092, 1096 (8th Cir.2002).
The Supreme Court has clearly stated that "[u]nder the traditional common-law rule, utilities have been required to bear the entire cost of relocating from a public right-of-way whenever requested to do so by state or local authorities." Norfolk Redevelopment and Hous. Auth. v. Chesapeake & Potomac Tel. Co. of Va., 464 U.S. 30, 35, 104 S.Ct. 304, 78 L.Ed.2d 29 (1983) (citing New Orleans Gas Light Co. v. Drainage Comm'n of New Orleans, 197 U.S. 453, 462, 25 S.Ct. 471, 49 L.Ed. 831 (1905)). Minnesota courts recognize the same rule. See Stillwater Co. v. City of Stillwater, 50 Minn. 498, 52 N.W. 893, 894 (1892); N. States Power Co. v. City of Oakdale 588 N.W.2d 534, 542 (Minn.Ct. App.1999) ().
Xcel seeks to avoid this undisputed precedent by focusing on the Franchise Agreement. Xcel maintains that § 7 of that agreement specifically provides for payment of relocation costs to Xcel under these circumstances. It states in relevant part:
Except where required solely for a City improvement project, the vacation of any public way, after the installation of electric facilities, shall not operate to deprive [Xcel] of its rights to operate and maintain such electrical facilities, until the reasonable cost of relocating the same and the loss and expense resulting from such relocation are first paid to [Xcel].
(Appellant's App. at 811.) Xcel argues that this express contractual provision in the Franchise Agreement "overrides" the common law rule, and therefore the district court's reliance on New Orleans Gas Light was reversible error.
Xcel's arguments are not persuasive. Even assuming that the Franchise Agreement is controlling and creates a legal right that could be enforced against the Defendants,3 it does not provide for reimbursement under these circumstances because the City did not vacate Fifth Street.
The district court was correct to note that under the Minneapolis Charter and the Ordinances, vacation is a formal act of the Minneapolis City Council. Chapter 8, Section 3 of the Minneapolis Charter provides that vacation may only occur upon a two-thirds vote of the City Council:
Section 3. Vacation of Streets. The City Council may also by a vote of two-thirds of the members thereof vacate any highway, street, lane or alley, or portion of either and such power of vacating highways, streets, lanes and alleys within the City of Minneapolis is vested exclusively in said City Council, and no court or other body, or authority shall have any power to vacate any such highway, street, lane or alley, nor any plat or portion of any plat of lands within said City.
Minneapolis, Minn., City Charter ch. 8, § 3. Likewise, the Minneapolis City Ordinances4 require that a number of formal steps be taken before vacation may occur, including: 1) the referral of any proposed vacation to the planning commission for investigation and report; 2) an investigation and a report and recommendation by the commission on the proposed vacation; 3) a public hearing, if thought necessary by either the City Council or the planning commission; 4) an application, including a plat specifically delineating the right-of-way to be vacated, filed with the City Clerk by the person or entity requesting vacation; and 5) a $300 application fee to be paid by the person or entity requesting vacation. Minneapolis, Minn., Code of Ordinances ch. 433 §§ 433.10 to 433.50. Only after these steps are taken may the City vacate a public way under the City Ordinances. See id. It does not appear that these steps were taken in this case.
The district court was also correct to note that Minnesota courts have identified vacation to be a formal act...
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