Beauregard Elec. Co-op., Inc. v. Louisiana Public Service Commission

• Citation: 378 So.2d 404
• Decision Date: 13 December 1979
• Docket Number: No. 65049,65049
• Parties: BEAUREGARD ELECTRIC COOPERATIVE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
• Court: Supreme Court of Louisiana

Page 404

378 So.2d 404

BEAUREGARD ELECTRIC COOPERATIVE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.

No. 65049.

Supreme Court of Louisiana.

Dec. 13, 1979.

John Schwab, Baton Rouge, for plaintiff-appellant.

Marshall B. Brinkley, Baton Rouge, for defendant-appellee, La. Pub. Service Com.

Andrew P. Carter, Kenneth P. Carter, Monroe & Lemann, New Orleans, for intervenor-appellee Louisiana Power & Light Co.

SUMMERS, Chief Justice.

On June 15, 1977, Louisiana Power and Light Company ("L.P. & L.") filed a complaint with the Louisiana Public Service Commission ("Commission"), alleging that Beauregard Electric Cooperative, Inc. ("Beauregard") was making attempts to serve a proposed elementary school to be located on the Fort Polk military installation in violation of the Commission's General Order of March 12, 1974, relating to duplication of electric service. In its complaint L.P. & L. alleged that it had furnished electric service to Fort Polk for many years and that it currently furnished such service to the installation. L.P. & L. alleged in its complaint that it had an existing 34.5 KV three-phase electric line located approximately 1,900 feet from the school site, and that Beauregard's closest line was located a greater distance from the school. L.P. & L. further asserted that by its attempted service to the proposed Polk Elementary School, Beauregard was allegedly in violation of the Commission's General Order of March 12, 1974, by duplicating electric service in the area. The complaint concluded by seeking a cease and desist order against Beauregard, enjoining it from further attempts to furnish electrical service at the school.

By an amended complaint dated June 29, 1977, L.P. & L. alleged that Beauregard had constructed an electric line extending from the Beauregard line nearest to the school location to the school site, a distance of approximately 3,500 feet. This extension was alleged by L.P. & L. to have been constructed between June 23, 1977, and June 28, 1977, and L.P. & L. claimed that this action by Beauregard was taken after service of the Commission's summons upon Beauregard. L.P. & L. claimed that the extension crossed directly under existing L.P. & L. power lines. The amended complaint sought an order that Beauregard dismantle the extension it had constructed and refrain from further action.

In response to the complaint, Beauregard filed an exception to the jurisdiction of the Commission and an exception of no cause of action, as well as its answer including a reservation of rights. In the exceptions filed, Beauregard claimed that since the school facility was owned by the United States Government and was to be located on property owned by the United States Government, the Commission had no jurisdiction to adjudicate the respective rights of the electric utility companies to serve the Fort Polk military installation. Beauregard claimed in addition that neither La.Rev.Stat. 45:123, relative to extending service to a point of connection which is within 300 feet of an electric line of another public electric utility, nor the Commission's General Order of March 12, 1974, had any application to the furnishing of electrical service on United States Government property, and therefore, L.P. & L. stated no cause of action.

After a hearing the Commission rendered its order finding that

". . . after consideration of the evidence and exhibits in this case including the exception to the jurisdiction and exception of no cause of action filed by Beauregard and the response thereto by legal counsel for L.P. & L. L.P. & L. can serve the Vernon Parish School Board Elementary School to be constructed on Fort Polk property more economically than Beauregard can and further finds that Beauregard is in violation of this Commission's General Order dated March 12, 1974 entitled 'Duplication of Electric Service' . . ."

On these findings the Commission ordered that L.P. & L. was authorized to provide electric service to the Vernon Parish School Board Elementary School on the Fort Polk property and that Beauregard was to remove the extension it had constructed to serve the school.

When the application for rehearing was denied, Beauregard petitioned the Nineteenth Judicial District Court under appropriate authority for an appeal from and judicial review of the Commission's order. L.P. & L. intervened and upon responsive pleadings filed, L.P. & L. filed with the Commission and in the district court rules to show cause why Beauregard should not be ordered to remove the extension it had constructed. The district court referred the exceptions to the merits and the rules to show cause were dismissed pending the outcome of the appeal. By amended petition Beauregard prayed for an interlocutory injunction with reference to removal of the extensions.

A stipulation between the parties set forth that the Vernon Parish School Board elementary school site was physically located on property owned by the United States Government, with Vernon Parish School Board as owner and operator of the buildings. On these stipulations and the record made before the Commission, the district court rendered judgment approving the order of the Commission. From this judgment, Beauregard appeals.

The record before the Commission reflects that in this "customer dispute," L.P. & L. seeks to prevent Beauregard from providing service to Polk Elementary School, a proposed school which was to be constructed, owned and operated by the Vernon Parish School Board on the Fort Polk military reservation. Testimony given before the Commission indicates that the Vernon Parish School Board and the United States Government, through the Department of the Army, had agreed by lease that the Vernon Parish School Board had permission to place its school upon the military installation.

Pursuant to its resolution passed June 2, 1974, the Vernon Parish School Board had accepted Beauregard's proposal to supply electrical service to the new school. Construction was scheduled to begin by September 1977. The Vernon Parish School Board subsequently filed an application for membership in the cooperative and for electric service with Beauregard, constituting an agreement for service between the parties.

By letter dated June 21, 1977, Beauregard was granted an immediate "right of entry" or right of way upon the Fort Polk reservation to install the extension line under the authority of the Secretary of the Army. The formal right of way easement agreement was subsequently executed between Beauregard and the United States Government, granting to Beauregard a fifteen-foot wide easement from the military installation boundary proceeding 1,626 feet to the school site and 813 feet to the point of service, according to the copy of the right of way easement included in the record before the Commission.

The record reflects that the point of service in question within the Fort Polk reservation is approximately 1,400 feet from the north-south boundary on the west side of the reservation. L.P. & L. serves a telephone company located at the edge of this boundary which is L.P. & L.'s nearest customer to the school site. Prior to the construction of the Beauregard extension of which L.P. & L. complained, Beauregard's existing 13 KV line, constructed in 1955 according to the date on the poles, reached a point 1,800 feet west of the Fort Polk boundary, where the line then proceeded north. Beauregard constructed its extension, a three-phase line, from the point where this 13 KV line began its northerly path, toward the school site, an approximate distance of 3,200 feet. L.P. & L. claims that the Beauregard extension measures a total length of 3,306 feet, in comparison to a length of 1,410 feet estimated as the length of an extension it would be able to construct from its existing 34.5 KV line. This latter line runs parallel to the Beauregard extension until it reaches the western boundary of the Fort Polk reservation, from which point it runs southward.

Beauregard provides service to several other schools operated by the Vernon Parish School Board. Electric service on the Fort Polk military installation has been provided by L.P. & L. since 1941, with the exception of Northwestern State University, located in the northwest corner of the reservation, which is served by Central Louisiana Electric Company ("CLECO"). CLECO and L.P. & L. have a reciprocal arrangement to provide assistance in the event of outages and other service problems in the area.

In its appeal Beauregard contends that the Commission had no jurisdiction over the property owned by the United States Government to adjudicate the respective rights of the public utilities to serve this property. It argues therefore that the finding of the Commission that Beauregard's service to the proposed school site was a violation of the Commission's General Order of March 12, 1974 is contrary to the facts and the law and is arbitrary, capricious and unreasonable under this Court's holding in Louisiana Power and Light Company v. Louisiana Public Service Commission, et al., 353 So.2d 718 (La.1977).

In support of its first contention Beauregard argues that the property on which its customer, Fort Polk Elementary School, is located is owned by the United States Government. The property is therefore part of a United States military installation. For these reasons the exercise of the Commission's jurisdiction is precluded by the exclusive federal jurisdiction granted by Article I, Section 8, clause 17 of the United States Constitution, which provides:

"(The Congress shall have the power to exercise...