Northern St. Power Co. v. Fed. Transit Admin., 01-241MN

• Decision Date: 18 October 2001
• Docket Number: No. 01-241MN,01-241MN
• Parties: (8th Cir. 2001) NORTHERN STATES POWER COMPANY, DOING BUSINESS AS XCEL ENERGY, A MINNESOTA CORPORATION, APPELLEE, v. FEDERAL TRANSIT ADMINISTRATION, AN ADMINISTRATION OF THE UNITED STATES DEPARTMENT OF TRANSPORTATION; ELWYN TINKLENBERG, COMMISSIONER OF TRANSPORTATION, INDIVIDUALLY AND OFFICIALLY; MINNESOTA METROPOLITAN COUNCIL; AND STATE OF MINNESOTA, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 586

270 F.3d 586 (8th Cir. 2001)

NORTHERN STATES POWER COMPANY, DOING BUSINESS AS XCEL ENERGY, A MINNESOTA CORPORATION, APPELLEE, v. FEDERAL TRANSIT ADMINISTRATION, AN ADMINISTRATION OF THE UNITED STATES DEPARTMENT OF TRANSPORTATION; ELWYN TINKLENBERG, COMMISSIONER OF TRANSPORTATION, INDIVIDUALLY AND OFFICIALLY; MINNESOTA METROPOLITAN COUNCIL; AND STATE OF MINNESOTA, APPELLANT.

No. 01-241MN

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: October 18, 2001

Filed: November 2, 2001

On Appeal from the United States District Court for the District of Minnesota.

Before Bowman, Richard S. Arnold, and Hansen, Circuit Judges.

Per Curiam.

This is an appeal from an order of the District Court¹ granting a preliminary injunction. The injunction, granted on the basis of a counterclaim filed by the defendants (based on Minnesota law), orders the plaintiff, Northern States Power Company, doing business as Xcel Energy, to relocate, at its own expense, certain underground power lines and related facilities. The facilities in question are located under Fifth Street and east of Nicollet Avenue in downtown Minneapolis, and are to be relocated in connection with the construction of a Light Rail Transit project sometimes called Hiawatha. Xcel brought this suit in the District Court, alleging various violations of federal law, but the mandatory preliminary injunction was issued on the state-law counterclaim.

Our review is limited in this procedural posture of the case. As to findings of fact, we may reverse only if we hold the findings clearly erroneous. On the basis of the preliminary record before us, we see no clearly erroneous finding. The District Court has found that the work it has ordered can be carried out safely and properly before a February 2002 deadline. The issues are contested, but the District Court's findings are not clearly wrong on the basis of the record before us. In addition, with respect to the major issue of law in the case, whether state law authorizes the defendant Minnesota Department of Transportation (MnDOT) to require Xcel to do this work at its own expense, we conclude, as the District Court did, that MnDOT and the other state defendants, including the State of Minnesota, are likely to prevail on the merits. The case is set for trial in March of 2002. Our conclusions are necessarily tentative, as the District Court explained in its opinion, but for the present we are satisfied that that Court properly assessed the likelihood of success. The main claims asserted in the complaint, based on federal law, will also have to be dealt with, of course, before the merits are finally decided, but the plaintiff, which is the appellant here, has not suggested that its likelihood of prevailing on these claims is sufficiently great to justify a reversal of the preliminary injunction.

The work that the District Court has ordered is taking place. Xcel moved this Court for a stay of the preliminary injunction pending appeal, but we denied the motion, subject to an early setting of the case for oral argument, which has occurred. The parties need to know where they stand. Time is important. Accordingly we file this opinion affirming the preliminary injunction without extended discussion.

We also believe that the District Court acted within its discretion in weighing the equities in this...