Minnkota Power Coop., Inc. v. Anderson, s. 20120017

• Decision Date: 21 May 2012
• Docket Number: 20120024.,Nos. 20120017,s. 20120017
• Citation: 2012 ND 105,817 N.W.2d 325
• Parties: MINNKOTA POWER COOPERATIVE, INC., Petitioner and Appellee v. Thomas ANDERSON, Lori Due, Griffton Hughes, Rhonda Hughes, Rachel Weed, Ronald Lamm, Kelly Lamm, Michelle Lamm, Amy Lamm, Steven Flick, David Flick, Michael Flick, Darlene Hankison, Charles Krahler and Margie Krahler, Respondents. Steven Flick, David Flick, Michael Flick, and Darlene Hankison, Appellants. Minnkota Power Cooperative, Inc., Petitioner and Appellee v. Todd Axt, Doris Axt, Ione Frueh, Garrett Frueh, Ricky Frueh, Cheryl Sadowsky, Roy Jr. Kensmoe, Pearl Kensmoe, Kent Kensmoe, Kenneth Rauser, Launa Rauser, Roger Strobel, Julie Strobel, Weckerly F.L.P., Respondents. Weckerly F.L.P., Appellant.
• Court: North Dakota Supreme Court

817 N.W.2d 325

2012 ND 105

MINNKOTA POWER COOPERATIVE, INC., Petitioner and Appellee

v.Thomas ANDERSON, Lori Due, Griffton Hughes, Rhonda Hughes, Rachel Weed, Ronald Lamm, Kelly Lamm, Michelle Lamm, Amy Lamm, Steven Flick, David Flick, Michael Flick, Darlene Hankison, Charles Krahler and Margie Krahler, Respondents.

Steven Flick, David Flick, Michael Flick, and Darlene Hankison, Appellants.

Minnkota Power Cooperative, Inc., Petitioner and Appellee

v.Todd Axt, Doris Axt, Ione Frueh, Garrett Frueh, Ricky Frueh, Cheryl Sadowsky, Roy Jr. Kensmoe, Pearl Kensmoe, Kent Kensmoe, Kenneth Rauser, Launa Rauser, Roger Strobel, Julie Strobel, Weckerly F.L.P., Respondents.

Weckerly F.L.P., Appellant.

Nos. 20120017, 20120024.

Supreme Court of North Dakota.

May 21, 2012.

Tami L. Norgard (argued), Fargo, ND, and Jade M. Rosenfeldt (on brief), Moorhead, MN, for petitioner and appellee.

Christopher M. McShane (argued) and John T. Shockley (on brief), West Fargo, ND, for appellants.

VANDE WALLE, Chief Justice.

[¶ 1] Darlene Hankison, Michael Flick, Steven Flick, David Flick, landowners in Wells County, and Weckerly F.L.P., a landowner in Sheridan County, (collectively, “appellants”) appealed from a Wells County district court judgment and a Sheridan County district court order that denied their motions to dismiss and granted Minnkota Power Cooperative, Inc.'s petitions to enter their property to conduct testing and surveys. We affirm.

I.

[¶ 2] The facts are not in dispute. Minnkota is a Minnesota cooperative engaged in the generation and transmission of electricity and authorized to do business in North Dakota as a foreign cooperative. Minnkota proposed to build a 250–mile power transmission line from Center, North Dakota to Grand Forks, North Dakota. Minnkota sought option agreements to obtain right-of-way easements from most of the property owners along the route. Minnkota asked the property owners who declined the option agreements for access to the property to do testing and surveying so it could determine if the route was feasible and appropriate. Several landowners did not grant permission, and Minnkota filed petitions for access to the properties in Wells County and Sheridan County. Appellants filed motions to dismiss Minnkota's petitions, asserting Minnkota is not in the category of persons entitled to seek eminent domain under North Dakota law. The district courts held separate hearings on the matter.

[¶ 3] The Wells County district court denied Hankison's and the Flicks' motion to dismiss Minnkota's petition and granted the petition to allow access to the properties. The Wells County court held that for purposes of a petition to enter land for surveying and testing, Minnkota only needed to show it was in charge of a public use or it was in the category of persons entitled to seek eminent domain. The court determined Minnkota was in charge of a public use and also was entitled to seek eminent domain. The court held that N.D.C.C. § 10–13–03(7) specifically grants electric cooperatives in North Dakota the power of eminent domain and N.D.C.C. ch. 10–15 extends this authority to foreign cooperatives. The court also held, under N.D.C.C. § 49–22–07, the right of eminent domain attaches to the construction of energy lines once the Public Service Commission has issued a certificate of site compatibility, and Minnkota was issued such a certificate.

[¶ 4] The Sheridan County district court denied Weckerly F.L.P.'s motion to dismiss the petition and granted Minnkota's petition to enter Weckerly F.L.P.'s property. The Sheridan County court held, under N.D.C.C. § 10–15–52, a foreign cooperative is entitled to all rights, exemptions, and privileges of a cooperative organized for the same purposes under the laws of this state when it is issued a certificate of authority from the secretary of state. Minnkota was issued a certificate of authority from the secretary of state, and it is organized to provide power to its members. Because North Dakota electric cooperatives have authority to use eminent domain, the court determined Minnkota also has the power to use eminent domain. The court also observed that N.D.C.C. § 32–15–02(4) allows the power of eminent domain to be exercised for power transmission lines, and Minnkota's petition to enter Weckerly F.L.P.'s property was based on a proposed power transmission line.

II.

[¶ 5] In its petition, Minnkota sought and was granted access to appellants' property under N.D.C.C. § 32–15–06, which provides:

In all cases when land is required for public use, the person or corporation, or the person's or corporation's agents, in charge of such use may survey and locate the same, but it must be located in the manner which will be compatible with the greatest public benefit and the least private injury and subject to the provisions of section 32–15–21. Whoever is in charge of such public use may enter upon the land and make examinations,surveys, and maps thereof, and such entry constitutes no claim for relief in favor of the owner of the land except for injuries resulting from negligence, wantonness, or malice.

We have held that a party seeking to enter land for surveying and testing under section 32–15–06 must show it is in the category of persons entitled to seek eminent domain. Square Butte Electric Coop. v. Dohn, 219 N.W.2d 877, 883 (N.D.1974). “The time, manner, and occasion of the exercise of the power of eminent domain are wholly in the control and discretion of the legislature, except as it is restrained by the constitution of the state.” Johnson v. Wells Cnty. Water Res. Bd., 410 N.W.2d 525, 527 (N.D.1987). The power of eminent domain “lies dormant in the state until the Legislature by specific enactment designates the occasion, modes, and agencies by which it may be placed in operation.” Id. at 527–28 (quoting City of Pryor Creek v. Pub. Serv. Co. of Okla., 536 P.2d 343, 345–46 (Okla.1975)).

[¶ 6] We do not agree with the Wells County district court's conclusion that the right to seek eminent domain attaches to the construction of an energy transmission line simply because the Public Service Commission issues a certificate of site compatibility. However, the dispositive issue on appeal is whether Minnkota, a foreign cooperative authorized to do business in North Dakota, is entitled to have and exercise the power of eminent domain under N.D.C.C. §§ 10–13–03(7) and 10–15–52. Statutory interpretation is a question of law, which is fully reviewable on appeal. Nelson v. Johnson, 2010 ND 23, ¶ 12, 778 N.W.2d 773. The primary goal when interpreting a statute is to determine the legislature's intent from the language of the statute. Sorenson v. Felton, 2011 ND 33, ¶ 8, 793 N.W.2d 799. Words in a statute are to be given their ordinary and commonly understood meaning unless defined by statute or a contrary intention is clearly evident. N.D.C.C. § 1–02–02. Statutes are construed as a whole and are harmonized to give effect to related provisions. Sorenson, at ¶ 8 (citing N.D.C.C. § 1–02–09.1). If a statute's wording is clear and unambiguous, “the letter of it is not to be disregarded under the pretext of pursuing its spirit.” N.D.C.C. § 1–02–05.

[¶ 7] Section 10–13–03, N.D.C.C., provides in part:

In addition to the powers granted by the general law governing cooperatives, electric cooperatives have the power:

....

7. Subject to chapter 32–15, to have and exercise the power of eminent domain to acquire private property for its use, such right to be paramount except as to property of the state or any political subdivision thereof.

Appellants argue this statute only applies to North Dakota cooperatives organized under N.D.C.C. ch. 10–13. Because Minnkota is a foreign cooperative entitled to do business in the state under N.D.C.C. ch. 10–15, appellants assert Minnkota does not enjoy the power to seek eminent domain under N.D.C.C. § 10–13–03(7).

[¶ 8] The authority granted to foreign cooperatives under North Dakota law is found at N.D.C.C § 10–15–52: “Upon issuance of the secretary of state's certificate of authority, a foreign cooperative is entitled to all rights, exemptions, and privileges of a cooperative organized for the same purposes under the laws of this state.” Looking first to the plain language of the statute and giving each word its ordinary meaning, section 10–15–52 clearly and unambiguously grants qualifying foreign cooperatives the same rights as similar North Dakota cooperatives. We will not construe a statute to create an ambiguity or exception when none exists in the statute's plain language. See State v. Paulson, 2001 ND 82, ¶ 9, 625 N.W.2d 528 (“Where the terms of a statute are positive and unambiguous, exceptions not made by the Legislative Assembly cannot be read into the law”) (quoting Walsvik v. Brandel, 298 N.W.2d 375, 377 (N.D.1980)). Minnkota has been issued a certificate of authority by the secretary of state. Because North Dakota electric cooperatives are entitled to seek eminent domain under N.D.C.C. § 10–13–03(7), Minnkota is entitled to the same right and privilege. N.D.C.C. § 10–15–52.

[¶ 9] Appellants argue, however, that N.D.C.C. § 10–15–52 does not grant Minnkota the power to seek eminent domain because electric cooperatives, governed by N.D.C.C. ch. 10–13, are exempt from the application of N.D.C.C. ch. 10–15 under section 10–15–60, which states:

All foreign and domestic cooperatives are governed by the provisions of this chapter except that they shall not apply to cooperatives governed by title 26 or by chapters 6–06, 10–12, 10–13, 36–08, or 49–21, except when the laws governing such associations clearly adopt or refer to any provisions of this chapter or refer to provisions of the general law governing cooperatives.

If a statute is ambiguous, we may look to extrinsic aids, such as the legislative history, to determine the legislature's intent. N.D.C.C. § 1–02–39(3). The legislative history of N.D.C.C. § 10–15–60 provides guidance on the legislature's intent...