Eckre v. Public Service Commission

• Decision Date: 30 November 1976
• Docket Number: No. 9225,9225
• Citation: 247 N.W.2d 656
• Parties: Ragnhild ECKRE, et al., Plaintiffs-Appellees, v. PUBLIC SERVICE COMMISSION of the State of North Dakota et al., Defendants-Appellants, Dome Pipeline Corporation, Intervenor Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 656

247 N.W.2d 656

Ragnhild ECKRE, et al., Plaintiffs-Appellees, v. PUBLIC SERVICE COMMISSION of the State of North Dakota et al., Defendants-Appellants Dome Pipeline Corporation, Intervenor Defendant and Appellant.

Civ. No. 9225.

Supreme Court of North Dakota.

Nov. 30, 1976.

Rehearing Denied Dec. 27, 1976.

Syllabus by the Court

1. Appeal from proceedings of the Public Service Commission must be taken in the district court of the county wherein the hearing or a part thereof was held.

2. A person seeking a writ of mandamus must be beneficially interested. Such beneficial interest must be presently existing, and except in cases in which a party's interest as a taxpayer is sufficient, it must be substantial, real, and actual, different from and transcending those interests of the citizens generally.

3. Persons with beneficial interests within the scope of the Public Service Commission's consideration of an application for a certificate of public convenience and necessity have legal standing to challenge the scope and form of notice used by the Public Service Commission for a hearing on such an application.

4. The filing of an acceptance of the provisions of Chapter 49--19, N.D.C.C., is not the only condition precedent placed upon a common pipeline carrier's acquisition and use of the power of eminent domain, but, rather it is only one of several statutory conditions precedent to the exercise of the right of eminent domain by a common pipeline carrier.

5. A common pipeline carrier must apply for and receive a certificate of public convenience and necessity prior to the construction or operation of a pipeline system.

6. The Public Service Commission is delegated the power to promulgate such rules and issue such orders to govern the method and scope of notice which may be necessary for the orderly regulation of proceedings before the Public Service Commission, so long as the forms of such notice conform as nearly as possible to those in use in the courts of this State, and that such notice is reasonable in view of the nature, scope, and importance of the hearing.

7. The Public Service Commission's choice of methods for issuing notice of hearing to members of the public generally is discretionary, and will not be reversed unless exercised in 'clear abuse of discretion', i.e., failing to be in a manner conducive to the proper dispatch of business and to the ends of justice, and failing to provide notice that is reasonable in view of the nature, scope, and importance of the hearing.

8. Where the Public Service Commission posted notice of hearing in its office, sent notice of hearing to competing public utilities and to the respective chairmen of the boards of county commissioners of the counties wherein resided citizens who would be affected by the construction or operation of a proposed pipeline, and sent, as a general news release, a copy of such legal notice of hearing to the official newspaper of each county wherein resided citizens who would be affected by the construction or operation of such proposed pipeline--such notice was not unreasonable where the scope of inquiry at a hearing on an application for a certificate of public convenience and necessity for a common pipeline carrier system is limited to the consideration of: (1) whether the proposed service is reasonably necessary or would be wasteful and a useless burden on the public; (2) whether it would cause economic waste or public disadvantage; (3) whether it would cause unnecessary duplication of facilities which, in turn, might jeopardize presently existing facilities of the same type in the area where the proposed facility is to be located and which could ultimately result in inadequate services and higher rates; and (4) whether or not an applicant has the ability to finance its proposed service and is a fit, willing, and able party to perform the services proposed in conformance with the laws of the State and the rules and regulations of the Public Service Commission.

9. The trial court's issuance of a writ of mandamus will not be reversed unless, as a matter of law, such writ should not issue or unless there is a finding that the court has abused its discretion.

10. The prerequisites to the issuance of a writ of mandamus are that the petitioner must show that he has no plain, speedy, and adequate remedy in the ordinary course of the law and that he has a clear legal right to the performance of the particular act sought to be compelled by the writ.

11. Where a petitioner does not have a clear right to the relief sought, a writ of mandamus should not issue.

Pearce, Anderson, Pearce, Thames & Pearce, Bismarck, for intervenor defendant and appellant; argued by William P. Pearce, Bismarck.

Thomas F. Kelsch, Sp. Asst. Atty. Gen., and Ray H. Walton, Commerce Counsel, North Dakota PSC, Bismarck, for defendants-appellants (Public Service Commission); argued by Mr. Kelsch.

Johnson, Milloy, Johnson, Stokes & Robinson, Ltd., Wahpeton, for plaintiffs-appellees; argued by Rauleigh D. Robinson, Wahpeton.

PAULSON, Judge.

This appeal is from the April 20, 1976, judgment of the district court of Burleigh County granting to the plaintiffs (hereinafter Landowners) a peremptory writ of mandamus compelling defendant Public Service Commission of the State of North Dakota (hereinafter the PSC) to withdraw, as improperly granted, the PSC's order in the matter of the application of intervenor-defendant Dome Pipeline Corporation (hereinafter Dome) for a certificate of public convenience and necessity granted May 1, 1972, for the construction and operation of a common carrier pipeline; and which certificate was amended on August 22, 1973, and on September 10, 1974. In addition, the judgment ordered the PSC to 'begin anew' in the matter of the application of Dome for such certificate and to include a proper notice and afford an opportunity to be heard to interested parties, specifically including the Landowners herein; and the judgment further ordered the PSC to make new findings of fact, conclusions of law, and orders based solely upon evidence presented to the PSC. Both the PSC and Dome appeal from the judgment and the writ of mandamus.

The facts herein are not disputed. On February 11, 1972, Dome filed an application with the PSC wherein Dome requested the authority to construct and operate a pipeline and related facilities in the State of North Dakota. On February 18, 1972, the PSC sent notice of hearing to other public utilities in the area of the proposed pipeline, and to the chairman of the board of county commissioners of each county traversed by said pipeline. Also, on February 18, 1972, the PSC forwarded a copy of the notice of hearing in the form of a general news release to the official county newspaper of each county affected by said pipeline, but did not request such notice to be published as a legal publication in any of such newspapers. On March 16, 1972, a hearing on the application of Dome for a certificate of public convenience and necessity for the construction and operation of a common carrier pipeline was held before the PSC at Bismarck. On May 1, 1972, the PSC issued a certificate of public convenience and necessity to Dome, subject, among other conditions, to the following: (1) that the applicant begin construction not later than September of 1973; and (2) that the pipeline be constructed along the basic route outlined by exhibits filed at the March 16, 1972, hearing. The initial certificate authorized Dome to construct a single 16-inch pipeline.

On July 27, 1973, Dome filed a petition with the PSC advising the PSC that Dome could not meet the requirements of PSC's order insofar as commencing construction of the proposed pipeline before September of 1973, and indicated that the pipeline would now consist of two parallel lines, one of them 10 inches in diameter and the other one 12 inches in diameter, rather than the originally proposed single 16-inch line. Accordingly, the PSC, without notice or hearing, issued an amended order dated August 22, 1973, wherein the PSC authorized construction and operation of the common carrier pipeline in accordance with Dome's petition of July 27, 1973, and ordered that construction begin not later than September of 1974.

On September 6, 1974, Dome filed another petition with the PSC wherein Dome requested further extension of its certificate of public convenience and necessity to permit Dome to commence construction of the proposed pipeline no later than August 31, 1975. In accordance with such request, the PSC, on September 10, 1974, issued another amended order, approving Dome's request of September 6, 1974.

The Landowners herein were never served with notice or other process, nor did they have actual notice of the initial hearing before the PSC held on March 16, 1972; nor did the Landowners receive notice prior to the issuance of the PSC's respective amended orders of August 22, 1973, and September 10, 1974.

The Landowners, having been contacted by representatives of Dome and having refused to negotiate the sale of their property to Dome, are all defendants in eminent domain cases now pending in the district courts of Ransom and Richland Counties.

On January 6, 1976, the Landowners filed a petition for a writ of mandamus with the district court of Burleigh County, seeking to compel the PSC to withdraw the certificate of public convenience and necessity previously granted to Dome; to require the PSC to rehear Dome's application, giving adequate notice to and affording opportunity for interested parties to be heard; and, thereafter, to issue new findings of fact, conclusions of law, and orders based upon evidence to be adduced at the new hearing. The PSC resisted the Landowners' petition, and Dome, as an intervenor, joined with the PSC. The district court entered its judgment and granted the writ of mandamus April 20, 1976, ordering the PSC 'to begin anew'. Both the PSC and Dome...