rinke noonan - 1xtnk13y5u95o80og3gwd0sw-wpengine.netdna ...€¦ · jay and gail stanger 27209 jade...

..

·111 RINKE NOONAN attorneys at law

January 11, 2012

Steven J. Quam, Esq. James E. Dorsey, Esq. John Drawz, Esq. Fredrickson & Byron, P.A. 200 South Sixth Street, Suite 4000 Minneapolis, MN 55402-1425

Direct Dial: 320-656-3517 [email protected]

SENT VIA MAIL TO STEVEN QUAM AND EAMIL TO EACH OF THE ABOVE: [email protected], [email protected], [email protected]

Re: Northern States Power Company (d/b/a Xcel Energy) et al. v. James Rachey, et al. Court File No. 73-CV-11-9591 Our File No. 20994.001

Dear Counsel:

Enclosed and served upon you by U.S. Mail, please find our Memorandum of Law Objecting to Approval of Petition and Objecting to Petitioners ' Quick Take Motion.

i:gor S. Lerhoer- -ISL/jlp ~---

amb Enclosures cc: Michael C. Rajkowski (via fax: 320-251-1415 w/encls.)

Harry A. Frankman (via fax: 612-335-3572 w/encls.) Gerald J. Sonnen (w/encls.) Ralph Doubeck and Joseph Doubeck, d/b/a Gold Meadows Hunting Preserve (w/encls.) Robert L. and Jeanette L. Eisenschenk (w/encls.) David and Lynn Dingmann (w/encls.) Joseph J. and Cynthia M. Kammermeier (w/encls.) Roger and Annella Bechtold (w/encls.) William J. and Patricia A. Ware (w/encls.) Richard Weiman (w/encls.) Jason and Cindy Goerger (w/encls.) Michael Zimmer and Mary Ann Holdvogt (w/encls.) Cold Spring Granite Company (w/encls.) Terwey Brothers (w/encls.) Kenneth J. and Teresa M. Koltes (w/encls.) Michael J. and Diane D. Zimmer (w/encls.) Eugene H. Marthaler Revocable Trust (w/encls.) Cyril and Marjorie Marthaler (w/encls.) David P. and Ruth A. Minnerath (w/encls.) All named in the attached Service List (w/encls.)

Suite 300 US Bank Plaza IO I 5 W St. Germain St. PO. Box 1497

F:IDATA\20994\001\Letters (St. Cloud to Alexandria 20 11 )\Letter Steven J. Quam I 11 12.docx · 1111 /20 12 10:2 1 AM

St. Cloud. MN 56302 320.25 1.6700

www. rinkenoonan.com

Northern States Power Co., et al. v. James Rachey, et al. Court File No. 73-CV-11-9591

SERVICE LIST

Steven J. Quam, Esq. James E. Dorsey, Esq. John Drawz, Esq. Fredrikson & Byron, P.A. 200 South Sixth Street, Suite 4000 Minneapolis, MN 55402

Michael C. Rajkowski, Esq. (via fax: 320-251-1415) Quinlivan & Hughes, P.A. P.O. Box 1008 St. Cloud, MN 56302-1008

Donald A. and Jeanine Wolbeck 42342 State Highway 28 Sauk Centre, MN 56378

Wells Fargo Bank, National Association c/o Corporation Service Company 380 Jackson Street, #700 St. Paul, MN 55101

First State Bank of Sauk Centre 423 Main Street Sauk Centre, MN 56378

Target National Bank 3901 West 53rd Street Sioux Falls, SD 57106

Sauk Centre Municipal Airport Sauk Centre Airport Commission Jerry Beuning, Chairperson 320 Oak Street South Sauk Centre, MN 56378

F :IDATA•2099~ OQ llPkadings'· Pkadings - St. Cloud H-CV- 11-959 1 We< •AAA - S<rvice l ist .docx 12'16/20 11

Melrose Township Heidi Anderson, Clerk 32724 Birch Field Court P.O. Box 111 Melrose, MN 56342

Randall J. Roelike 34853 County Road 186 Melrose, MN 56352

Grove Township Richard Thull, Clerk 33945 Oakshire Road Melrose, MN 56352

Joseph and Margurite Roelike 34999 County Road 186 Melrose, MN 56352

City of Melrose Patti Haase, Clerk 225 First Street NE Melrose, MN 56352

Harold E. Toenies Family Trust 31715 Riverview Road Melrose, MN 56352

Jeffrey R. and Michele M. Meyer 405 Chinook A venue SW Avon, MN 56301

AgriBank, Farm Credit Bank Attn: Minerals 1 W 30 East ?1h Street, Suite 1600 St. Paul, MN 55101

Harry A. Frankrnan (via fax: 612-335-3572) Leland J. Frankrnan Law Offices 2000 U.S. Bank Plaza 220 South Sixth Street Minneapolis, MN 55402

Steams Cooperative Electric Association 900 East Kraft Drive Melrose, MN 56352

Leroy Moscho 30087 County Road 11 Freeport, MN 56331

St. Martin Township Donald Rausch, Clerk 28422 County Road 177 Paynesville, MN 56362

Freeport State Bank 111 Main Street East Freeport, MN 56331

Kenneth and Marina Doubek 29495 County Road 10 Albany, MN 56307

Wakefield Township Heidi Stalboerger, Clerk 17497 Fairway Circle Cold Spring, MN 56320

Ralph J. Buettner Lori K. Pekarek Buettner 25958 County Road 50 Cold Spring, MN 56320

United FCS, PCA 3881 Abbott Drive P.O. Box 1560 Willmar, MN 56201

F:•DAT A•2099• OOl ' Pleadin~s' Pl eodings - St. Cloud JJ-CV- 11-9591 Wet' AAA - Service List.docx 1.:! 116i::!0 \ I

Collegeville Township Joe Pohl, Clerk 27724 County Road 50 Cold Spring, MN 56320

Central Minnesota Credit Union 20 South 4th Avenue East Melrose, MN 56352

Mortgage Electronic Registration Systems, Inc. P.O. Box 2026 Flint, MI 48501

Bremer Bank, National Association 1100 St. Germain Street West St. Cloud, MN 56301

Libert~ Savings Bank 111 ?1 Avenue South St. Cloud, MN 56302

Alois Theisen 12621 - 2701

h Street St. Cloud, MN 56301

St. Joseph Township Anna Reischl, Clerk 200 Hill Street West St. Joseph, MN 56374

Eugene H. Marthaler Revocable Trust Agreement dated November 30, 1999 Thomas Marthaler, Trustee 1415 Cedar Street Alexandria, MN 56308

Nancy Goodwin, Trustee 900 Farnam, Apt. #701 Omaha, NE 68102

Gerald L. and Kathleen A. Zimmer 1157 5 - 280th Street St. Joseph, MN 56374

First State Bank of St. Joseph 400 4th Avenue NE St. Joseph, MN 56374 Northern Natural Gas Company c/o CT Corporation System, Inc. 100 South 5th Street, #1075 Minneapolis, MN 55402

AgStar Financial Services, FLCA 1921 Premier Drive Mankato, MN 56002

Rachel Otremba, Trustee 122 North Main Street Verona, WI 53593

Matthew A. and Kristine Thralow 27499 Jade Road St. Cloud, MN 56301

Mark F. and Jacqueline R. Molus 28654 Held Court Cold Spring, MN 56320

Jay and Gail Stanger 27209 Jade Road St. Cloud, MN 56301

Marvin and Monica Stanger 1320 East Minnesota Street St. Joseph, MN 56374

Jim Willard 9562 County Road 138 St. Cloud, MN 56301

F:,DAT A · 2099~ 001 Pkadings·P\eadings - Si. Cloud 73-CV- \ \-9j9 \ Wel'AAA - Service LiS1 .docx 12; \ 6•20 11

David L. Phillips Assistant Attorney General State of Minnesota 445 Minnesota Street Suite 1800 St. Paul, MN 55101-2134

Steams County Randy R. Schreifels Auditor/Treasurer 705 Courthouse Square, Rm 148 St. Cloud, MN 56303-4701

..

Ill RINKE NOONAN attorneys at law

January 11, 2012

Stearns County Court Administrator 725 Courthouse Square St. Cloud, MN 56303

HAND DELIVERED

Direct Dial : 320-656-3517 [email protected]

Re: Northern States Power Company (d/b/a Xcel Energy) et al. v. James Rachey, et al. Court File No. 73-CV-11-9591 Our File No. 20994.001

Dear Court Administrator:

Enclosed for filing in your usual manner, please find our Memorandum of Law Objecting to Approval of Petition and Objecting to Petitioners' Quick Take Motion which is scheduled before the Court on Friday, January 13, 2012, at 1:30 p.m.

If you should have any questions or concerns, please do not hesitate to contact me or my paralegal, Angie Bengtson. Thank you.

Sincerely,

~· [.£n1..l\U"' gos.~e er

ISL/jlp J\ Enclosu cc: Steven Quam (via mail and email: [email protected] w/encls.)

James E. Dorsey (via mail and email: [email protected] w/encls.) John Drawz (via mail and email: [email protected] w/encls.) Michael C. Rajkowski (via fax: 320-251-1415 w/encls.) Harry A. Frankman (via fax: 612-335-3572 w/encls.) Gerald J. Sonnen (w/encls.) Ralph Doubeck and Joseph Doubeck, d/b/a Gold Meadows Hunting Preserve (w/encls.) Robert L. and Jeanette L. Eisenschenk (w/encls.) David and Lynn Dingmann (w/encls.) Joseph J . and Cynthia M. Kammermeier (w/encls.) Roger and Annella Bechtold (w/encls.) William J. and Patricia A. Ware (w/encls.) Richard Weiman (w/encls.) Jason and Cindy Goerger (w/encls.) Michael Zimmer and Mary Ann Holdvogt (w/encls.) Cold Spring Granite Company (w/encls.) Terwey Brothers (w/encls.) Kenneth J. and Teresa M. Koltes (w/encls.) Michael J. and Diane D. Zimmer (w/encls.) Eugene H. Marthaler Revocable Trust (w/encls.) Cyril and Marjorie Marthaler (w/encls.) David P. and Ruth A. Minnerath (w/encls.) All named on the attached Service List (w/encls.)

Suite 300 US Bank Plaza I 0 I 5 W St. Germain St. PO. Box 1497 St. Cloud. MN 56302 320.25 1.6700

www. rinkenoonan.com

F:\DATA\20994\00 I \Letters (St. Cloud lo Alexandria 20 11 )\Leu er SI earns Coun1y Court Adminisirator 01 11 2012.docx 1/ 11 /2012 10:52 AM


SERVICE LIST





First State Bank of Sauk Centre 423 Main Street Sauk Centre, MN 563 78

Target National Bank 3901 West 53rd Street Sioux Falls, SD 57106


F:\DATA120994•00 l\PleadingslPleadings - SI. Cloud 73-CV-11 -959 1 Wet\AAA - Service Lis1.docx 1 ~1 1 6/20 11







Jeffrey R. and Michele M. Meyer 405 Chinook Avenue SW Avon, MN 56301

AgriBank, Farm Credit Bank Attn: Minerals 1 W 30 East ?111 Street, Suite 1600 St. Paul, MN 55101

Harry A. Frank.man (via fax: 612-335-3572) Leland J. Frank.man Law Offices 2000 U.S. Bank Plaza 220 South Sixth Street Minneapolis, MN 55402









F:\DATA\20994 00 1\PleadingslPleadings- St. Cloud 73-CV-11 -959 1 Wet\AAA -Service List .docx 1 2' 1 61~0 1 I


Central Minnesota Credit Union 20 South 4111 A venue East Melrose, MN 56352



Liberti;' Savings Bank 111 i 1 Avenue South St. Cloud, MN 56302

Alois Theisen 12621 - 270111 Street St. Cloud, MN 56301




Gerald L. and Kathleen A. Zimmer 11575 - 280th Street St. Joseph, MN 56374



Rachel Otremba, Tmstee 122 North Main Street Verona, WI 53593






F:\DA TA ' 20994•00 !\Pleadings' Pleadings - SL Cloud 73-CV- 11 -9;9 I We1\AAA - Service Lisi .docx 12'16•20 11


Steams County Randy R. Schreifels Audi tor/Treasurer 705 Courthouse Square, Rm 148 St. Cloud, MN 56303-4701

January 11, 2012

TO THE ATTACHED SERVICE LIST

Direct Dial : 320-656-3517 [email protected]

Re: Re: Northern States Power Company (d/b/a Xcel Energy) et al. v. James Rachey, et al. Court File No. 73-CV-11-9591 Our File No. 20994.001

Dear Sir or Madam:

Enclosed and served upon you by U.S. Mail, please find our Memorandum of Law Objecting to Approval of Petition and Objecting to Petitioners' Quick Take Motion.

Enclosures

cc: Michael C. Rajkowski (via fax: 320-251-1415 w/encls.) Harry A. Frankman (via fax: 612335-3572 w/ encls.) Gerald J. Sonnen (w/encls.) Ralph Doubeck and Joseph Doubeck, d/b/a Gold Meadows Hunting Preserve (w/encls.) Robert L. and Jeanette L. Eisenschenk (w/encls.) David and Lynn Dingmann (w/encls.) Joseph J. and Cynthia M. Kammermeier (w/encls.) Roger and Annella Bechtold (w/encls.) William J. and Patricia A. Ware (w/encls.) Richard Weiman (w/encls.) Jason and Cindy Goerger (w/encls.) Michael Zimmer and Mary Ann Holdvogt (w/encls.) Cold Spring Granite Company (w/encls.) Terwey Brothers (w/encls.) Kenneth J. and Teresa M. Koltes (w/encls.) Michael J. and Diane D. Zimmer (w/encls.) Eugene H. Marthaler Revocable Trust (w/encls.) Cyril and Marjorie Marthaler (w/encls.) David P. and Ruth A. Minnerath (w/encls.)

Suite 300 US Bank Plaza I O I 5 W St. Germain St. PO. Box 1497 St. Cloud, MN 56302 320.25 1.6700

www.rinkenoonan.com

F:\DATA\20994\001\Letters (St. Cloud to Alexandria 20 11 )\Letter Service List I 11 12.docx 1/ 1112012 11 :03 AM


SERVICE LIST






Target National Bank 3901West53rd Street Sioux Falls, SD 57106


F:'DATA. ( !099..J QOl \ Plt:ad in~s'· Plt! adin~s . St. Cloud 73-CV-1 1-959 1 Wer 1AAA - Service lis1.docx \~ l \ 6/::!0 11







Jeffrey R. and Michele M. Meyer 405 Chinook Avenue SW Avon, MN 56301

AgriBank, Farm Credit Bank Attn: Minerals 1 W 30 East ih Street, Suite 1600 St. Paul, MN 55101

Harry A. Frankman (via fax: 612-335-3572) Leland J. Frankman Law Offices 2000 U.S. Bank Plaza 220 South Sixth Street Minneapolis, MN 55402

Stearns Cooperative Electric Association 900 East Kraft Drive Melrose, MN 563 52








F: · DATA ·2099~ OOPP\eadin~s' P l~adi ngs - St. Cloud 73-CV- 11 -9591 WePAAA - Service List.don 12 ' \ 6 1~0 \ \


Central Minnesota Credit Union 20 South 4th Avenue East Melrose, MN 56352



Libert~ Savings Bank 111 i A venue South St. Cloud, MN 56302

Alois Theisen 12621 - 270th Street St. Cloud, MN 56301




Gerald L. and Kathleen A. Zimmer l 1575-280th Street St. Joseph, MN 56374



Rachel Otremba, Trustee 122 North Main Street Verona, WI 53593

Matthew A. and Kristine Thralow 27499 Jade Road St. Cloud,. MN 56301



Marvin and Monica Stanger 13 20 East Minnesota Street St. Joseph, MN 56374


F:•DAT k2099~ 001 Pk>dings·Pleadings - S1. Cloud lJ-CV- 11-9;9 ! Wel'AAA - Service Lis< .docx 12 -- 16•201 I



STATE OF MINNESOTA ) ) AFFIDAVIT OF SERVICE BY MAIL

COUNTY OF STEARNS )

The below signed, being duly sworn, states that on the 11 111 day of January, 2012, I served the attached Memorandum of Law Objecting to Approval of Petition and Objecting to Petitioners' Quick Take Motion upon:

Steven J. Quam, Esq. James E. Dorsey, Esq. John Drawz, Esq. Fredrickson & Byron, P.A. 200 South Sixth Street, Suite 4000 Minneapolis, MN 55402-1425

and the parties on the Attached Service List

by mailing to Steven J. Quam, James E. Dorsey, John Drawz and the parties on the attached service list copies thereof, enclosed in an envelope, postage prepaid, and by depositing same in the post office at St. Cloud, Minnesota, directed to the parties at their last known address and by emailing to Steven J. Quam ([email protected]) , James E. Dorsey ([email protected]) and John Drawz ([email protected]).

Subscribed and sworn to before me this 11 111 day of Januarx, 2012.

C@:; l? '~ Notary Public

CATHY M. THEIS NOTARY PUBLIC· MINNESOTA

My Commission Expires Jan. 31, 2015


SERVICE LIST




Wells Fargo Bank, National Association c/o Corporation Service Company 3 80 Jackson Street, #700 St. Paul, MN 55101


Target National Bank 3901West53rd Street Sioux Falls, SD 57106

Sauk Centre Municipal Airport Sauk Centre Airport Commission Jerry Beuning, Chairperson 320 Oak Street South Sauk Centre, MN 563 78

F:\DATA'20994 OO llPleadings' Pkadings-St. Cloud 73-CV- 11 -9;9 1 Wel'AAA - Service List .docx 12' 16120 11







Jeffrey R. and Michele M. Meyer 405 Chinook A venue SW Avon, MN 56301

AgriBank, Farm Credit Bank Attn: Minerals 1 W 30 East ?111 Street, Suite 1600 St. Paul, MN 55101

Harry A. Frankman (via fax: 612-335-3572) Leland J. Frankman Law Offices 2000 U.S. Bank Plaza 220 South Sixth Street Minneapolis, MN 55402









F:\OATA\2099~ OOl'Pleadings' Pleadings -St. Cloud 73-CV- 11 -959 1 We1\AAA - Service Lisi .docx 12 1 1 6i~Ol 1


Central Minnesota Credit Union 20 South 4th A venue East Melrose, MN 56352



Libertri Savings Bank 111 i 1 Avenue South St. Cloud, MN 56302

Alois Theisen 12621 - 270th Street St. Cloud, MN 56301




Gerald L. and Kathleen A. Zimmer 11575 - 280111 Street St. Joseph, MN 56374



Rachel Otremba, Trnstee 122 North Main Street Verona, WI 53593






F:IDATA'2099~ 001 Pkadingf·Pleadings ·St. Cloud 73-CV- \ \.9;91 Wel'AAA ·Service Lisi .docx \21\6•2011



ST A TE OF MINNESOTA

COUNTY OF STEARNS

Northern States Power Company (d/b/a Xcel Energy) a Minnesota corporation, by its Board of Directors; Great River Energy, a Minnesota cooperative corporation, by its Board of Directors; ALLETE, Inc. ( d/b/a Minnesota Power) , a Minnesota corporation, by its Board of Directors; Western Minnesota Municipal Power Agency, a municipal corporation and political subdivision of the State of Minnesota, by its Board of Directors; and Otter Tail Power Company, a Minnesota corporation, by its Board of Directors,

Petitioners,

vs.

James Rachey, et al.,

Respondents.

Case Type: Condemnation DISTRICT COURT

SEVENTH JUDICIAL DISTRICT

MEMORANDUM OF LAW OBJECTING TO APPROVAL OF PETITION AND OBJECTING TO PETITIONERS' QUICK TAKE MOTION Court File No. 73-CV-11-9591

Respondents Gerald J. Sonnen (AQ183, AQ184); Ralph Doubek and Joseph Doubek,

d/b/a Gold Meadows Hunting Preserve (AQ351); Robert L. Eisenschenk and Jeanette L.

Eisenschenk (AQ372); David Dingmann, a/k/a David M. Dingmann and Lynn Dingmann, a/k/a

Lynn E. Dingmann (AQ394-AQ396); Joseph J. Kammermeier and Cynthia M. Kammermeier

(AQ397); Roger Bechtold and Annella Bechtold, a/k/a Annella M. Bechtold (AQ403); William

J. Ware, a/k/a William Jeffrey Ware and Patricia A. Ware, a/k/a Patricia Ann Ware (AQ404);

Richard R. Weiman (HQ405); Jason Goerger, a/k/a Jason W. Goerger and Cindy Goerger, a/k/a

Cindy R. Goerger (AQ406); Michael M. Zimmer and Mary Ann Holdvogt (AQ417); Cold

Spring Granite Company, a Minnesota corporation (AQ434); Terwey Brothers, a Minnesota

F:\DATA\20994\001\Pleadings\P leadings -St. Cloud 73-CV-11-9591 Wet\Memo of Law (ISL)2.docx 11/21/2011

partnership (AQ428); Kenneth J. Koltes and Teresa M. Koltes (AQ427); Michael J. Zimmer and

Diane D. Zimmer (AQ423 , AQ426, AQ424); Eugene H. Marthaler Revocable Trust, Cyril

Marthaler, Marjorie E. Marthaler (AQ422, AQ425); David P. Minnerath and Ruth A. Minnerath

(AQ373, AQ377) submit the following Memorandum of Law in support of their objection to the

Petition to acquire certain portions of their land for purposes of constructing a 345 kV high

voltage transmission line (HVTL) from Monticello, Minnesota to Fargo, North Dakota.

Procedural Background

Petitioners are part of the CapX 2020 utility company joint venture. As part of this joint

venture, Petitioners are constructing approximately 700 miles of high voltage power lines.

Petitioners, using a delegation of power from the State of Minnesota, seek to condemn three

easements from the listed Respondents. These easements are summarized as follows (see

Exhibit B of Petition fo r exact wording):

1. CORRIDOR "RIGHT OF WAY" EASEMENT. The first easement is an easement corridor defined by survey across Respondents' various properties (the "Corridor Easement"). The Corridor Easement ranges in size but generally corresponds to Petitioners' needs to have a 150 foot wide utility corridor in which to locate its high voltage power lines and poles. The Corridor Easements are defined in the Petition as the "Easement" and cover a defined "Easement Area."

2. EASEMENT FOR INGRESS AND EGRESS. The second easement sought by Petitioners is an ingress and egress easement to provide access to the Corridor Easement area (the "Ingress and Egress Easement"). The Ingress and Egress Easement covers all property held in fee title by Respondents --referred to in the Petition as the "Premises". The Ingress and Egress Easements are blanket easements across the entire Premises owned by Respondents.

3. CONSTRUCTION EASEMENT. The third easement to be condemned by Petitioner is an easement for use of the Premises "adjacent" to the Easement Area (the "Construction Easement"). The Construction Easement is also a blanket easement covering the entire Premises owned by Respondents . This allows Petitioner to work outside of the Corridor Easement on property "adjacent" to the Easement Area. This

2

F:\ OATA\20994\001\Pleadings\Pleadings ·St. Cloud 73·CV·11·9S91 Wet\Memo of Law (ISL)2.docx 11/21/2011

easement is unconfined in space or time. However, after the initial construction the Construction Easement is restricted to undefined "remote and unusual circumstances ... "

In previous condemnation actions brought by Petitioners, property owners objected to the

scope of the three easements to be acquired. In those matters, the petitions were approved with

the understanding that the Petitioners and property owners would agree to confine and better

define the three easements. That concept has failed miserably, and has also forced impacted

property owners into the position of expending funds to appraise and argue damages just to have

the Petitioners appear at the last minute and agree to release or confine the easements. Allowing

this Petition to move forward will require that Respondents unnecessarily expend attorneys' fees,

appraisal costs, time, lost wages, and efforts in order to pursue "just compensation" without

knowing what has or has not been taken from them.

Respondents respectfully request that the Court deny Petitioners ' request for approval of

their Petition and deny Petitioners' quick take motion.

The Court should not approve the Petition because (1) the three easements as described in

the Petition violate Minn. Stat. § 301B.03 in addition to well-settled caselaw requiring easements

to be described in the Petition with accuracy and certainty; (2) Petitioner fails to show that the

takings are "necessary" to serve a public purpose; and (3) Petitioner lacks the authority to take

these three easements.

THE EASEMENTS PROPOSED TO BE TAKEN EXCEED LEGISLATIVE AND CONSTITUTIONAL LIMITS.

The United States Constitution and the Minnesota Constitution provide that the

government shall not take private property for public use without "just compensation." U.S.

3

F:\DATA\20994\001\Pleadings\Pleadings - St . Cloud 73-CV-11-9591 Wet\Memo of law (ISL)2.docx 11/21/2011

Const. amend. V; Minn. Const. art. I, § 13. The power of eminent domain is legislatively created

and prescribed, and thus can be exercised only as authorized by statute. Minnesota Canal &

Power Co. v. Fall Lake Boom Co., 148 N.W. 561, 562 (Minn. 1894). Petitioner, Northern States

Power Company ( d/b/a Xcel Energy) is a public utility and public service corporation that

derives its eminent domain powers from the Minnesota Power Plant Siting Act (PPSA), codified

in Minnesota Statutes Chapter 216E. "By enacting the PPSA, the legislature sought to ensure

that the future siting of ... transmission lines would be carried out in an orderly fashion

according to a rational design, rather than haphazardly, and possibly unnecessarily, at the whim

of individual public utilities whose decision might fail to consider or comport with the public's

interest." No Power Line, Inc. v. Minnesota Environmental Quality Council, 262 N.W.2d 312,

321 (Minn. 1977).

Because Petitioner is a public service corporation, as opposed to a state agency, the

delegation of eminent domain power must be strictly construed and the courts may not imply any

power that is not expressly granted by statute. In re Fuchs, 19 N.W.2d 394, 400 (Minn. 1945).

In other words, if there is doubt as to whether a statute confers a certain power to condemn, it

must be resolved against the condemning authority. Minnesota Canal & Power Co. v.

Koochiching Co., 107 N.W. 405, 435 (Minn. 1906) ("In these days of enormous property

aggregation, where the power of eminent domain is pressed to such an extent, and where the

urgency of so-called public improvements rests as a constant menace upon the sacredness of

private property, no duty is more imperative than that of the strict enforcement of these

constitutional provisions intended to protect every man in the possession of his own.").

4

F:\DATA\20994\001\Pleadings\Pleadings -St. Cloud 73-CV- 11-9591 Wet\Memo of law (ISL)2.docx 11/21/2011

A condemning authority, before taking private land, must detennine that there is a public

use for the land and that the taking is "reasonably necessary or convenient for the furtherance of

that public use." Lundell v. Cooperative Power Ass 'n, 707 N.W.2d 376, 380 (Minn. 2006). To

this end, a condemning authority must obtain a certificate of need. Minn. Stat. § 216B.243

(2010). While a condemning authority's general detennination of public necessity is subject to

great deference, Lundell, 707 N.W.2d at 381, the condemning authority's power to determine

public necessity is not limitless. Significantly, property owners have the right to challenge

"whether the specific interest in a particular piece of property is necessary to accomplish the

general project." Cooperative Power Ass 'n v. Eaton, 284 N.W.2d 395, 397 (Minn. 1979). For

example, in Eaton, two power cooperative corporations obtained a certificate of need to

construct and maintain a HVTL and petitioned the district court under Minnesota Statutes

Chapter 117 to condemn easements over certain private properties to that end. Id. at 396.

Property owners challenged the eminent domain Petition and requested a trial, arguing, among

other things, that the proposed acquisitions were not for public uses or purposes, arguing

alternatively that the language granting the easement was too broad to effectuate the purpose. Id.

Relying in large part on the issuance of the certificate of need, the district court granted the

cooperatives' Petition. Id. at 397. The Minnesota Supreme Court reversed, determining that the

landowners should have the chance to "address the factual issue of whether the requested

easement is too broad to effectuate the purpose in question." Id.

In addition to the requirement to establish public necessity for the taking of particular

property, condemning authorities must also describe in the Petition the land sought to be taken,

including easements, "with accuracy and certainty." Monongahela Power Co. v. Shackelford, 73

5

F:\DATA\ 20994\001\ Pleadings\Ple ad ings ·St. Cloud 73-CV-11·9591 Wet\ Memo of l aw (ISL) 2.docx 11/21/2011

S.E.2d 809, 813 (W.Va. 1952) (quoting Otter Tail Power Co. v. Von Bank, 8 N.W.2d 599

(N.D. )) ; see also Bell Telephone Co. v. Parker, 79 N.E. 1008, (Ct. App. N.Y. 1907) ("The

command of the Condemnation Law is that the Petition shall contain 'A specific description of

the property to be condemned, and its location, by metes and bounds, with reasonable

certainty."'); City of Gastonia v. Glenn, 11 S.E.2d 459, (N.C. 1940) ("The right of way is to be

located before it can be taken. It must be fixed and not fugitive."); Dailey v. Missouri Pacific

Railway Co. , 170 N.W. 888, (Neb. 1919) ("A petition to condemn the land of another for the use

of a railroad is the basis of the proceeding, and before an owner over his protest can be

compelled under the sovereign power of eminent domain to part with the title to his land, it is

essential to the validity of the proceedings that the petition filed with the county judge under [the

Nebraska statute] accurately describe the tracts ought to be condemned"). Certainty and

accuracy are essential "so that both the owner of the easement and the owner of the property

subjected to it may know exactly what their rights are with respect to their different interests."

Monongahela Power Co., 73 S.E.2d at 813 (quotation omitted). Moreover, certainty is required

in order to determine the value of the interest taken and the damage done to the remainder of the

property. Id.

For example, in Monongahela Power Co. , the condemning authority sought to condemn

an easement for the construction and operation of an electric transmission line over the

appellants' properties, as well as the rights of ingress and egress over the properties for purposes

of construction and maintenance. Id. at 810-11. The Petition described the easement by defining

the center line, but failed to provide the width. The West Virginia Supreme Court reversed the

district court's order allowing the taking, reasoning that because the description was so vague, it

6

F:\DATA\20994\001\Pleadings\Pleadings ·St. Cloud 73-CV-11-9591 Wet\Memo of Law (ISL)2.docx 11/21/2011

could not determine whether the property sought to be acquired was, as required by statute,

"limited to such quantity as is necessary for the purpose or purposes for which it is

appropriated." Id. at 813 .

Similarly, in Bell Telephone Co., the district court properly determined that a Petition

lacked sufficient specificity when it allowed the condemning authority "to trim such trees as may

be necessary to protect said line from interference," but did not specify the distance deemed

necessary to maintain the safety of the line. 79 N.E. at 1009. The Court of Appeals of New

York reasoned that the distance necessary to maintain the safety of the line must be stated in the

Petition in order to inform the property owner in advance of the extent of the interest being

acquired and to allow the commissioners to justly assess the damage sustained by the taking. Id.

The Court concluded, " It is not enough in a proceeding to condemn an interest in land for public

purposes to describe the interest sought to be acquired so vaguely as to leave it dependent upon

the undisclosed opinion of the condemning party as to the quantum of the interest which it may

be deemed necessary to take." Id.

The requirements of specificity and certainty also apply to the right of ingress and egress

for purposes of maintenance. In Loyd v. Southwest Arkansas Utilities Corp., for example, the

condemning authority sought to acquire, in addition to an easement for an electric line, an

undefined right of ingress and egress over all of the appellants' property. 580 S.W.2d 935, 936

(Ark. 1979). The Arkansas Supreme Court rejected the condemning authority's argument that

such a right was a "secondary easement" that passed by express or implied grant with the main

easement, concluding instead that it was a "separate and distinct right of ingress and egress over

all the Loyds ' property" similar to the easement itself. Id. at 938. Specifically, the Court

7

F:\ DATA\20994\001\Pleadings\Pleadings - St . Cloud 73-CV-11-9591 Wet\Memo of Law (I SL)2.docx

11/21/2011

reasoned, "any vehicle that would be needed for the maintenance or operation of the line could

be driven across the Loyds' land." Id. Citing Arkansas's rule of strict construction in favor of

landowners, the Loyd Comt held that easement, as defined, was not sufficiently located and

remanded. Id. at 938-39.

In accord with well-settled caselaw, Minnesota statutes provide:

When public service corporations, including pipeline companies, acquire easements over private property by purchase, gift, or eminent domain proceedings, except temporary easements for construction, they must definitely and specifically describe the easement being acquired, and may acquire an easement in a width necessary for the safe conduct of their business.

Minn. Stat. § 301B.03 (2010). Section 301B.03 further provides that a public service

corporation meets the requirements for definiteness and specificity when it includes in the

description of the easement (1) the specific legal reference points as to the location the easement

enters and departs the property, the width of the easement, and its changes of cours.e; or (2) a

drawing that identifies the same reference points. Id. (b). When the recorded description of the

easement lacks a definite and specific description, as set forth in the statute, the public service

corporation must produce and record an instrument that provides such description upon the

request of a property owner. Id. (c) . The Minnesota Supreme Court addressed section 301B.03

in Scherger v. Northern Natural Gas Co., noting that in 1993, it "was amended by the addition of

language intended to protect landowners from marketability of title problems caused by

easements covering large tracts ofland." 575 N.W.2d 578, 581 (Minn. 1998) (holding that

section 301B.03 does not apply to easements acquired before its enactment).

8

F:\ DATA\20994\001\Pleadings\ Plead ings - St. Cloud 73-CV-11-9591 Wet\Memo of La w (IS L) 2.docx 11/2 1/2011

In the Petition at issue here, Petitioner seeks to condemn, in addition to the Corridor

Easement for the HVTL line, an Ingress and Egress Easement over and across the Premises to

the Corridor Easement area "by the use of the most reasonable and feasible route selected by

Petitioners in their reasonable discretion." This description is deficient because it does not

confine the Ingress and Egress Easement by location on the property. Petitioner also seeks to

acquire a Construction Easement, which is "a temporary easement for use by Petitioners of the

premises adjacent to the Easement Area from time to time during construction, repair, or

replacement of the Electric Lines." The description of the Construction Easement is also

deficient because it does not confine the Construction Easement by width or duration. Thus, the

Court must deny approval of the Petition and Petitioners' quick take motion.

A. Blanket easements are unnecessary and overly broad.

The property interests sought by Petitioner are most accurately characterized as blanket

easements over Respondents' entire property. The description of the Ingress and Egress

Easement set out in the Petition allows Petitioner, ifthere are no existing field roads or lanes, to

enter the entirety of Respondents' property on routes "selected by Petitioners in their reasonable

discretion." In other words, if there are no existing field roads or lanes, Petitioners may traverse,

drive vehicles, and haul equipment over the entirety of Respondents' land to reach the Corridor

Easement. While "reasonable discretion" may appear to provide some kind of limits for the

Ingress and Egress Easement, it fails to provide the accuracy required by caselaw and necessary

for valuation purposes, among other things. Similarly, the "temporary" Construction Easement

contained in the Petition allows Petitioner to enter Respondents' property "adjacent to the

Easement Area" for purposes of construction, repair, or replacement. "Adjacent" is defined as

9

f :\DATA\20994\001\Pleadings\Pleadings - St. Cloud 73-CV-11-9591 Wet\Memo of La w (ISL)2.docx 11/21/2011

"[l]ying near or close to, but not necessarily touching." Black's Law Dictionary, supra at 16.

Thus, because the Construction Easement covers all land "lying near or close to" to the Easement

Area, unconfined by a specified width, Petitioner may use the entirety of Respondents' property.

Petitioner can occupy Respondents' entire property with equipment, vehicles, or construction

materials for unlimited periods of time. Such actions, allowed by the overly broad easement

descriptions, are not necessary for the enjoyment of a limited right of way for placement of

HVTL lines. Therefore, Petitioner cannot properly justify the inclusion of the Ingress and Egress

Easement nor the "temporary" Construction Easement.

Further, the Construction Easement and Ingress and Egress Easements are "blanket

easements" that cover Respondents' entire property because it restricts Respondents' right to

exclude with regard to the entirety of the property. See generally Hendler v. The United States,

952 F.2d 1364, (U.S. App. 1991) ("In the bundle of rights we call property, one of the most

valued is the right to sole and exclusive possession-the right to exclude strangers, or for that

matter friends , but especially the Government."); see also Otay Mesa Property v. The United

States, 93 Fed. Cl. 476, 485-86 (Fed. Cir. 2010).

Lastly, the description of the interest sought by Petitioner with regard to the Construction

Easement is deficient because it describes the easement as "temporary" when it plainly allows

Petitioner to enter the entirety of Respondents' property for unlimited periods of time into the

undefined future. The Construction Easement described here is not limited by any time

constraints with regard to both periods of construction or repair, or overall duration.

10

F:\DATA\20994\001\Pleadings\Pleadings ·St. Cloud 73-CV-11-9591 Wet\Memo of Law (ISL) 2.docx 11/ 21/2011

Blanket access easements are not necessary. Petitioners in many cases can travel the

Corridor Easement area to access other areas, the lines are inspected and strung by helicopter,

and even if ground access is required, only a defined access driveway is needed.

As to the "temporary" Construction Easement, Petitioner does not need nor can they

justify the blanket easement covering the entire Premises of Respondents .

Furthennore, given the language of the easements and testimony of Xcel Energy's

Engineer at previous commissioners' hearings, landowners are left with no certainty as to the

right they have retained in their underlying land.

B. The Court should deny Petitioners' Petition and quick take motion because the easements to be acquired violate Minn. Stat. § 301B.03 and well-settled caselaw requiring easements to be described with certainty and accuracy.

Perhaps most plainly, Petitioner, a "public service corporation," is required to "definitely

and specifically describe the easement being acquired" pursuant to Minn. Stat. § 301B.03(a)

(2010). The Ingress and Egress Easement lacks the requisite specificity because, if there are no

existing field roads and lanes, it covers the entirely of Respondents' property. The "temporary"

Construction Easement lacks the requisite specificity because it covers the entirety of

Respondents' property and lasts indefinitely into the future.

Section 301B.03 further provides that a public service corporation "may acquire an

easement in a width necessary for the safe conduct of their business." The language in the

Petition fails to limit either the Construction Easement or the Ingress and Egress Easement to any

specific width; therefore, it would be impossible for a court to determine whether it is in fact

"necessary for the safe conduct of [Petitioner's] business." See Monongahela Power Co., 73

S.E.2d at 813 (reasoning that because the easement description was so vague, it could not

11

F:\DATA\20994\001\P lead ings\Ple adings ·St. Cloud 73-CV-11-9591 Wet\Memo of law (ISL)2.docx 11/2 1/2011

determine whether the property sought to be acquired was, as required by statute, "limited to

such quantity as is necessary for the purpose or purposes for which it is appropriated").

The deficiency of the easement descriptions implicates the policies behind section

301B.03, as well as policies set forth in caselaw requiring easements to be defined with accuracy

and certainty. First, the descriptions fail to allow "the owner of the easement and the owner of

the property subjected to it [to] know exactly what their rights are with respect to their different

interests." See id. For example, the description of the Construction Easement states that the

easement is "temporary," when it fails to limit Petitioner's right to use the entirety of

Respondents' property by any temporal restrictions. Further, it is unclear whether a property

owner may build on the property "adjacent" to the Easement Area, or even what area is

considered to be "adjacent." Such ambiguity in the description may lead to future litigation

regarding its exact meaning. Likewise, the Ingress and Egress Easement allows Petitioner to

access the entirely of Respondents' property in order to reach the Corridor Easement. Disputes

may arise regarding what is a "reasonable" path through Respondents' property. There is simply

no criteria to determine what is reasonable; in effect, Petitioner's discretion is boundless and

unchecked.

In addition, the vague and overly broad descriptions make it difficult for the

condemnation commissioners to determine the "just compensation" for the damage sustained.

See id. "The Supreme Court has defined just compensation as 'the full and perfect equivalent in

money of the property taken. The owner is to be put in as good [a] position pecuniarily as he

would have occupied if his property had not been taken.'" Otay Mesa Property, 93 Fed. Cl. at

484 (quoting United States v. Miller, 317 U.S. 369, 373 (1943)).

12

F:\DATA\20994\001\Pleadings\Plead ings - St. Cloud 73-CV-11-9591 Wet\Memo of Law (IS L)2.docx 11/21/2011

It is difficult to determine the fair market value of Respondents' property in light of the

broad and overly vague Ingress and Egress Easement because it is unclear what portions of

Respondents' property Petitioner may choose to use "in their reasonable discretion." See Otay

Mesa Property, 93 Fed. C. at 485 ("The Court cannot detennine just compensation ... without

first identifying the precise scope of the easement . . . "). The language as it is now allows

Petitioner, in the absence of existing field roads and lanes, to ingress and egress over whatever

route it deems reasonable, without regard to Respondents' right to exclude Petitioner from

portions of their property, is not necessary to accomplish the project. It is even more problematic

to value the "temporary" Construction Easement because it is unclear how often and to what

extent Petitioner will occupy Respondents' property for purposes of maintenance and repair.

The language is broad enough to allow Petitioner to occupy the entirety of Respondents'

property with vehicles, equipment, and construction materials from "time to time" for as long as

they wish into the unlimited future. Therefore, any determination of "just compensation" for the

interests is speculative and unlikely to represent "the full and perfect equivalent in money of the

property taken." See Otay Mesa Property, 93 Fed. Cl. at 484 (defining "just compensation").

Lastly, the vague and overly broad description of the perpetual Construction Easement

may constitute a cloud on Respondents' title that will affect Respondents' ability to sell their

property in the future. Significantly, the Scherger Court noted that section 301B.03 was

amended in 1993 "by the addition of language intended to protect landowners from marketability

of title problems caused by easements covering large tracts of land." 575 N.W.2d at 581

(providing that the statute was amended to allow property owners to request a definite and

specific description of a questionable easement and to require public service corporations to

13

F:\DATA\20994\001\Pleadings\Pleadings ·St. Cloud 73-CV-11-9591 Wet\Memo of Law (ISL)2.docx

11/21/2011

"produce and record in a timely manner a definite and specific description"). The vague and

overly broad Construction Easement here may adversely affect Respondents' ability to insure the

title to the property.

C. Petitioner lacks authority to take the easements as described.

As set forth above, "[t]he power of eminent domain rests exclusively in the legislature

and can be exercised only as authorized by the legislature." Minnesota Canal & Power Co., 148

N.W. at 562. And, because Petitioner is a public service corporation, its power to condemn must

be strictly construed and the Court may not imply any power not expressly granted by statute.

See In re Fuchs, 19 N.W.2d at 400.

Here, Petitioner derives its authority to condemn private land for purposes of constructing

and maintaining HVTLs pursuant to the PPSA, codified in Minnesota Statutes Chapter 216E.

"By enacting the PPSA, the legislature sought to ensure that the future siting of .. . transmission

lines would be carried out in an orderly fashion according to a rational design, rather than

haphazardly, and possibly unnecessarily, at the whim of individual public utilities whose

decision might fail to consider or comport with the public's interest." No Power Line, Inc., 262

N.W.2d at 321. The PPSA provides that a utility may only construct an HVTL with a route

permit and certificate of need issued from the Commission. Minn. Stat.§ 216E.03, subd. 2

(2010) (requiring route permit); Minn. Stat. § 216B.243 (2010) (requiring certificate of need).

The route permit issued by the Commission states, "When the transmission line is placed cross-

country across private land, an easement for the entire right-of-way (150 to 180 foot width) shall

be acquired from the affected landowner(s)." The permit provides a list of "specific construction

practices" the Petitioners are required to follow, including the requirement that Petitioners "shall

14

F:\ DATA\20994\001\Pleadi ngs\Ple adings ·St. Cloud 73·CV·11·9591 Wet\ Me mo of law (1 5L)2.docx 11/21/2011

limit temporary easements to special construction access needs and additional staging or lay-

down areas required outside of the authorized right-of-way. Space should be selected to limit the

removal and impacts to vegetation."

The certificate of need establishes the general necessity of the HVTL project, but does

not discuss the details of the easements to be acquired. It notes that under Minn. R. 7849.0120,

an applicant must show its proposal will comply with all relevant laws. As discussed above, the

descriptions of the Ingress and Egress Easement and "temporary" Construction Easement violate

Minn. Stat. § 301B.03. And lastly, the descriptions are contrary to the PPSA's policy to ensure

that the siting of power lines is accomplished in a rational manner "rather than haphazardly, and

possibly unnecessarily, at the whim of individual public utilities whose decision might fail to

consider or comport with the public's interest." See No Power Line, Inc. , 262 N.W.2d at 321.

In short, nothing in the Route Permit or Certificate of Need grants Petitioner the authority

to condemn blanket easements on the entirety of Respondents' property for purposes of ingress

and egress to the HVTL, and then maintaining and repairing the HVTL. To the contrary, the

language in the route permit specifically delineates the 150-to-180-foot right of way to be

acquired and emphasizes the need to limit temporary easements. And because Petitioner is a

private corporation, as opposed to a state entity, the Court may not imply any authority that is not

expressly confeITed by statute. See In re Fuchs, 19 N.W.2d at 400.

Respondent respectfully requests that the Court deny approval of the Petition and deny

the motion for a quick take because the easements described in the Petition violate Minnesota

statute and well-settled caselaw.

15

F:\DATA\20994\001\Pleadings\Pleadings - St. Cloud 73-CV-11-9591 Wet\Memo of law (ISL)2.docx 11/21/2011

Dated: / - / / , 2012 -------"----- ---

Respectfully submitted,

16

F:\DATA\20994\001\Pleadings\P leadings - St. Cloud 73-CV-11-9591 Wet\Memo of law (I SL)2.docx 11/21/2011

rinke noonan - 1xtnk13y5u95o80og3gwd0sw-wpengine.netdna ...€¦ · jay and gail stanger 27209 jade...

Documents