Application of Nebraska Public Power Dist. for a Certificate of Corridor Compatibility for a 500 KV AC Elec. Transmission Facility Extending from Canadian Border Near Cavalier, North Dakota to South Dakota Border near Forman, N.D., 10263

• Decision Date: 07 February 1983
• Docket Number: No. 10263,10263
• Citation: 330 N.W.2d 143
• Parties: In the Matter of the Application of NEBRASKA PUBLIC POWER DISTRICT FOR A CERTIFICATE OF CORRIDOR COMPATIBILITY FOR A 500 KV AC ELECTRIC TRANSMISSION FACILITY EXTENDING FROM the CANADIAN BORDER NEAR CAVALIER, NORTH DAKOTA TO the SOUTH DAKOTA BORDER NEAR FORMAN, NORTH DAKOTA. Civ.
• Court: North Dakota Supreme Court

Page 143

330 N.W.2d 143

In the Matter of the Application of NEBRASKA PUBLIC POWER DISTRICT FOR A CERTIFICATE OF CORRIDOR COMPATIBILITY FOR A 500 KV AC ELECTRIC TRANSMISSION FACILITY EXTENDING FROM the CANADIAN BORDER NEAR CAVALIER, NORTH DAKOTA TO the SOUTH DAKOTA BORDER NEAR FORMAN, NORTH DAKOTA.

Civ. No. 10263.

Supreme Court of North Dakota.

Feb. 7, 1983.

Kelsch, Kelsch, Bennett, Ruff & Austin, Sp. Asst. Attys. Gen., Mandan and Ray Walton, Commerce Counsel, PSC, Bismarck, for PSC; argued by Thomas F. Kelsch, Bismarck.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, and Crowell & Moring, Washington, D.C. and Gene D. Watson, Gen. Counsel, Nebraska Public Power Dist. Columbus, Neb., for Nebraska Public Power Dist., argued by John D. Kelly, Fargo.

Conmy, Feste, Bossart, Hubbard & Corwin, Fargo, and Hodny, Burke & Rice, Grafton, for aggrieved landowners-appellants; argued by David R. Bossart, Fargo.

PEDERSON, Justice.

This is an appeal by aggrieved landowners ¹ from a judgment which affirmed a Public Service Commission (PSC) decision granting the Nebraska Public Power District (NPPD) a certificate of corridor compatibility for a 500 kilovolt electric transmission line in eastern North Dakota, commonly known as the MANDAN line, which extends from the Canadian border to the South Dakota border. We affirm.

I. FACTS

Under Chapter 49-22, NDCC, the North Dakota Energy Conversion and Transmission Facility Siting Act, the first step in siting an electric transmission line is the selection of a six-mile wide corridor, within which a specific line route will later be chosen. The PSC held general informational hearings in the counties through which the MANDAN line corridor transversed--Pembina, Walsh, Grand Forks, Steele, Barnes, Ransom and Sargent. In addition, seven days of hearings involving expert testimony on the technical aspects of the line were held in Valley City.

The PSC then prepared findings of fact, conclusions of law and an order granting the corridor certificate. The corridor approved by the PSC was wider than the one NPPD applied for as it included an expanded western border. On appeal to the Barnes County District Court, the PSC decisions on the merits and in denying the request for a rehearing were affirmed. This appeal followed.

II. APPELLATE REVIEW

In North Dakota the right to appeal is purely statutory. Young v. White, 267 N.W.2d 799, 800 (N.D.1978). The Siting Act provides that any party who is aggrieved by the issuance of a certificate, permit, or final order of the PSC may request a rehearing. Section 49-22-19, NDCC. The Siting Act also states that there is a right to appeal to the district court from any adverse ruling by the PSC. Id.

The Administrative Agencies Practice Act, Ch. 28-32, NDCC, similarly states that any party aggrieved by the decision of an administrative agency may request a rehearing by the agency. This language, which corresponds with that in the Siting Act, was interpreted by this court in Evanson v. Wigen, 221 N.W.2d 648, 653 (N.D.1974). We quoted from Petition of Village Board of Wheatland, 77 N.D. 194, 221, 42 N.W.2d 321, 336 (1950) as follows: "[T]he statute clearly warrants the conclusion that the legislature did not intend that a request for a rehearing should constitute a prerequisite to an appeal from a final decision of an administrative agency." We interpret Sec. 49-22-19 of the Siting Act similarly in that an aggrieved party may request a rehearing, but is not required to do so before appealing to the district court.

From the wording of Sec. 49-22-19 it is not clear if an aggrieved person is always entitled to a rehearing by the PSC upon request. Although the statute states that any aggrieved party "may request a rehearing," it also states that the "hearing shall be conducted pursuant to chapter 28-32 [the Administrative Agencies Practice Act]." [Emphasis added.] The PSC contends that although any aggrieved party may request a rehearing, the PSC has the option to deny the request pursuant to Chapter 28-32, NDCC. Section 28-32-14 of the Administrative Agencies Practice Act states, in part, that the "administrative agency may deny such request for rehearing ...." We do not find error in the position of the PSC. The landowners' request for rehearing is considered under Chapter 28-32, the Administrative Agencies Practice Act, and may be denied pursuant to Sec. 28-32-14, NDCC.

In an appeal from a decision of an administrative agency which has been appealed first to the district court and then to this court, we review the decision of the administrative agency rather than the decision of the district court. Lee v. Gulf Oil Exploration and Production, 318 N.W.2d 766, 768 (N.D.1982). Accordingly, in our review we must look to the record compiled before the administrative agency itself. North Dakota Real Estate Commission v. Allen, 271 N.W.2d 593, 595 (N.D.1978).

North Dakota Century Code Secs. 28-32-19 and 28-32-21 control our review of administrative agency determinations. In this case, unless we find that the "rules or procedure of the agency have not afforded the appellant a fair hearing ... [t]he findings of fact made by the agency are not supported by a preponderance of the evidence [or] [t]he conclusions and decision of the agency are not supported by its findings of fact," we must affirm. Section 28-32-19, NDCC.

In Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220 (N.D.1979), this court applied the following general principle when reviewing an administrative agency's factfinding: "[W]e do not make independent findings of fact or substitute our judgment for that of the agency. We determine only whether a reasoning mind reasonably could have determined that the factual conclusions reached were proved by the weight of the evidence from the entire record." We must exercise restraint when we review administrative agency findings. Asbridge v. North Dakota State Highway Com'r, 291 N.W.2d 739, 744 (N.D.1980). "It is not the function of the judiciary to act as a super board, substituting its judgment for that of the administrator whose decision is being reviewed." Barnes County v. Garrison Diversion, Etc., 312 N.W.2d 20, 25 (N.D.1981). Similarly, we will not substitute our judgment for that of the qualified experts in the administrative agencies. Bank of Hamilton v. State Banking Bd., 236 N.W.2d 921, 925 (N.D.1975).

III. PSC FINDINGS OF FACT

The PSC made 53 findings of fact and 11 conclusions of law in this case. The landowners contend the PSC erred in four areas, each of which is involved in the central issue of the appeal--the extent of the PSC's power under the Siting Act.

Finding of fact number 25 states that the methodology used by NPPD in its corridor analysis process "was designed to identify a corridor in which the proposed transmission line ... [could] be constructed, operated and maintained in a manner that would minimize overall adverse effects on the environment, consistent with economics and technological considerations." The landowners contend that the proposed corridor was actually selected because it permits the MANDAN line to be constructed in a straight line and thus is the most economical method.

We are convinced that finding number 25 is supported by a preponderance of evidence in the record. Because the MANDAN line must cross several states and a Canadian province, the state corridors must meet to form one continuous corridor. A straight corridor from which the route will eventually be chosen will not only lower NPPD's costs, but will also involve fewer acres of North Dakota land and, accordingly, there will be less impact upon the environment and agricultural practices.

The landowners also challenge finding of fact number 38 which involves avoidance areas, exclusion areas, and the "fifty-percent rule." The North Dakota Legislature has determined that transmission facilities affect the environment and welfare of North Dakota citizens. Section 49-22-02, NDCC. The PSC has the duty to minimize these adverse effects. The PSC has identified exclusion areas and avoidance areas to enable it to do so. Section 69-06-08-02, NDAC.

Exclusion areas initially are not eligible for consideration when choosing a transmission line route. They include national, state, and local parks and wilderness areas. Section 69-06-08-02(1), NDAC. Avoidance areas include woodlands (through January 1, 1982), wildlife refuges, game management areas, forests, grasslands, reservoirs, and land within 500 feet of rural residences. Section 69-06-08.02(2), NDAC. Although exclusion and avoidance areas may be located within a corridor, at no given point may they encompass more than fifty percent of the corridor width unless there is no reasonable alternative to that corridor. Section 69-06-08-02, NDAC.

In the MANDAN line proposed corridor, there are avoidance areas, consisting mainly of woodlands, which encompass more than fifty percent of the corridor width. The question thus becomes whether or not the PSC's finding that there is no reasonable alternative to the grant of the proposed corridor across the avoidance areas is supported by a preponderance of the evidence. We believe it is. The PSC considered an alternate western corridor, but determined it was not a "reasonable alternative." This conclusion was based, in part, on the fact that the western alternate corridor would involve 44 additional corridor miles.

We note that the PSC has recently amended its rules, deleting "woodlands and wooded areas" from its list of avoidance areas. As a result the approved corridor does not violate the current fifty-percent rule.

In finding of fact number 53 and conclusion of law number 10, the PSC decided to modify NPPD's proposed corridor by moving the western boundary further west. The landowners contend the PSC did not have the authority to expand the corridor. The PSC is limited to the statutory authority given it by the legislature. Petition of Village Board of Wheatland, supra...