Sprenger v. Psc

• Decision Date: 21 June 2007
• Docket Number: No. 125 Sept. Term, 2006.,125 Sept. Term, 2006.
• Citation: 400 Md. 1,926 A.2d 238
• Parties: Paul C. SPRENGER, et al. v. The PUBLIC SERVICE COMMISSION OF MARYLAND, et al.
• Court: Court of Special Appeals of Maryland

926 A.2d 238

400 Md. 1

Paul C. SPRENGER, et al. v. The PUBLIC SERVICE COMMISSION OF MARYLAND, et al.

No. 125 Sept. Term, 2006.

Court of Appeals of Maryland.

June 21, 2007.

John J. Coyle, Jr. (Hidey, Coyle & Monteleone, Cumberland, MD), on brief, for Petitioners.

Miles H. Mitchell (Susan Stevens Miller of Maryland Public Service Com'n, Baltimore, Md), on brief; Jeffrey A. Lamken (David A. Super and Benjamin E. Kringer of Baker Botts, L.L.P., Washington, DC), on brief, for Respondents.

ARGUED BEFORE RAKER, CATHELL, HARRELL, GREENE, JOHN C. ELDRIDGE, (Retired specially assigned), ALAN M. WILNER, (Retired specially assigned) THEODORE G. BLOOM, (Retired specially assigned), JJ.

CATHELL, Judge.

This case arises from the approval by the Public Service Commission (the Commission) of a plan of Clipper Windpower ("Clipper"), to construct the Allegheny Heights Windpower Facility (the "Facility") in Garrett County, Maryland. Paul C. Sprenger and Rebecca Harvey,¹ petitioners, filed an action for declaratory relief in the Circuit Court for Garrett County, asking that court to rescind two Commission orders. The first order approved Clipper's plan to build the Facility, and the second denied a request for rehearing on the approval of the Facility. The Circuit Court for Garrett County denied petitioners' action for declaratory relief, and they appealed to the Court of Special Appeals. In a reported opinion, that court affirmed the judgment of the Circuit Court. Sprenger v. Public Service Comm'n, 171 Md. App. 444, 910 A.2d 544 (2006). This Court granted certiorari to consider the following questions:

"I. IS AN INTERESTED PERSON WHO IS ADVERSELY IMPACTED BY AN ORDER OF THE PUBLIC SERVICE COMMISSION ENTITLED TO BRING AN ACTION FOR DECLARATORY RELIEF IF THE PUBLIC SERVICE COMMISSION FAILS TO PROVIDE REQUIRED NOTICE AND THE TIME TO FILE AN APPEAL FROM THE PUBLIC SERVICE COMMISSION ORDER HAS EXPIRED?

"II. DOES A CIRCUIT COURT HAVE JURISDICTION TO CONSIDER AND TRY THE SAME ISSUES RAISED BUT NOT TRIED IN ANOTHER CIRCUIT COURT IN AN ACTION DISMISSED AS UNTIMELY IF THE ISSUE OF TIMELINESS, NOT THE LACK OF NOTICE ISSUE RAISED IN BOTH CASES, IS PENDING IN AN APPELLATE COURT?"

Sprenger v. Public Service Comm'n, 396 Md. 524, 914 A.2d 768 (2007). We answer the first question in the negative and affirm the judgment of the Court of Special Appeals.²

I. Facts

This case is the second of two cases, both challenging the process by which the Facility was approved, to reach this Court. As our decision in this case, the second one, is inexorably linked to the first case, we shall summarize the background of that case before reviewing the facts relevant to the present case. For clarity's sake we will refer to the first case as "Clipper I"³ and, when necessary, we will refer to this case as "Clipper II."

Clipper I

In Clipper I, filed earlier, we summarized the relevant facts as follows:

"On August 26, 2002, Clipper filed an application with the Commission seeking authorization to build a wind turbine facility for the purpose of generating electricity. As required, Clipper notified the public of its application to build the facility, and the date, time, and location of a scheduled pre-hearing conference by publishing a notice in both The Republican and The Cumberland Times-News, generally circulated newspapers in Garrett County, on the successive weeks of September 26, 2002, September 30, 2002, October 3, 2002, and October 6, 2002.[⁴]

"The wind turbine facility was to be composed of up to 67 individual turbines. Each turbine would consist of a free-standing tower approximately 262 feet in height. A rotor, having a diameter not in excess of 262 feet (80m) (39m blades), would be attached to the tower. The maximum combined height would be approximately '394 ft (120 m) with one blade in the vertical position.' Clipper's executive summary of its proposal for the facility implied that some, but not all, of the turbines would be of that size and stated that all 67 turbines may not need to be built depending upon `factors ... not identified prior to [the] start of construction.' In addition to the tower and the blade, each turbine would consist of a foundation anchoring it to the ground and a transformer that would collect the power from the turbines and transfer it to a substation through an `underground electrical collection system.' All-weather gravel service roads would be built from existing hardtop roads and the cables associated with the electrical collection system were to be buried alongside such service roads. The total project area would cover approximately 10.8 miles and would be constructed on Backbone Mountain extending from `Wild Turkey Rock at an elevation of 3,228 ft (984 m) above sea level southwestward to Allegheny Heights at 3,200 ft (975 m).' Although three other sites were surveyed, Allegheny Heights was selected `because of wind resource potential and favorable site characteristics (primarily contiguous, well-exposed areas and proximity to three transmission lines).'[⁵]

"An adjudicatory hearing[⁶] regarding Clipper's proposal, at which attendance was high, `standing room only,' was held. Clipper, the Department of Natural Resources's Power Plant Research Program, the staff of the Commission, and the Office of People's Counsel were the named parties to the proceeding. Pursuant to PUC § 3-106, four individual members of the public intervened and were granted party status.[⁷] Among those in attendance were respondents Eric Tribbey and Russell Bounds .... Although both Tribbey and Bounds submitted citizen comment letters following the conclusion of the hearing, neither they, nor Friends,[⁸] sought to intervene.

"The hearing examiner issued a proposed order that contained and recommended settlement conditions to which all of the parties had agreed, which the Commission subsequently adopted. It issued a final order (Order No. 78354) approving Clipper's plan.

"Tribbey, then, writing on behalf of Friends, submitted a letter to the Commission requesting a rehearing. The Commission, by Order No. 78617, denied the request, explaining:

`This matter comes before the Public Service Commission ("Commission") as a result of a series of filings made by entities that did not appear as parties in the above-captioned proceeding. On April 24, 2003, the Friends of Backbone Mountain ("Friends") filed a pro se formal request for rehearing in this case. On April 25, 2003, Citizens for Responsible Wind Power ("Citizens") also filed a pro se formal request for rehearing in this case. A third pro se formal request for rehearing in this matter was filed on April 28, 2003, by The Garrett County Historical Society ("Garrett Historical"). . . Friends made an additional filing, by Counsel, on June 27, 2003. This June 27th filing includes two documents: (1) an Application to Intervene, and (2) a Supplement to Request for Rehearing and Application to Reopen for Further Evidence.... On August 5, 2003, Counsel for Paul C. Sprenger filed an Application to Intervene and a Motion for Reconsideration and for Modification of the Order of the Public Service Commission ("Sprenger Motion"). This August 5th filing includes four exhibits ("Sprenger Exhibits A, B, C, and D"). None of the actual parties to the case have raised any objection to the Commission's Order No. 78354, issued on March 26, 2003.

`The Commission denies all four requests. Public Utility Companies ("PUC") Article § 3-114(c)(1) restricts the right to apply for rehearing to parties: "A party in interest may apply to the Commission for rehearing within 30 days after service of a final order on the party." [Emphasis added.] Since none of the four entities requesting rehearing were parties to the proceeding, none qualify to request rehearing. Additionally, the filing made on behalf of Friends on June 27, 2003, is not a filing provided for either under PUC § 3-114 or Code of Maryland Regulations ("COMAR") § 20.07.02.08,[⁹] both of which contemplate a single, comprehensive rehearing application by a party. Friends' June 27th filing is also well beyond the thirty-day period during which parties may request rehearing. Sprenger's filings are still further beyond the thirty-day period during which parties may request rehearing.

`Clipper complied with all of the procedural elements of the Certificate of Public Convenience and Necessity ("CPCN") process, including the provisions of COMAR § 20.79.01.03, and also complied with the Hearing Examiner's direction to advertise the pre-hearing conference and the public hearings in local Garrett County newspapers. The four entities requesting rehearing had sufficient notice and opportunity to intervene as parties; since they did not, they do not have standing to request rehearing....

`... as already stated, Clipper properly advertised the pre-hearing conference and the public hearings in local Garrett County newspapers, thus providing sufficient notice to enable prompt and timely intervention. This is not a question of whether Friends could have intervened "sooner in the process," but rather an issue of whether Friends attempted to intervene during the process at all. The Commission finds that the attempted intervention is outside the process, and cannot be granted since the proceeding closed prior to the attempted intervention.'

Order No. 78617 (internal footnotes omitted). Thus, the Commission concluded that Friends was not a `party in interest' under PUC § 3-114 because it had not properly intervened under PUC § 3-106. The Commission also determined that it already had fully considered the issues presented for rehearing in the original proceedings and it was not necessary to readdress them or to address them further.

"Thereafter, . . . Tribbey, on his own behalf, and not on behalf of Friends, filed a petition for judicial review of the Commission's Order No. 78617, and, on the same day, a separate petition for judicial review of the Commission's Order was...