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Pesall v. Montana Dakota Utilities, Co.

Supreme Court of South Dakota

November 4, 2015

GERALD PESALL, Intervener and Appellant,
v.
MONTANA DAKOTA UTILITIES, CO., OTTER TAIL POWER and THE SOUTH DAKOTA PUBLIC UTILITIES COMMISSION, Appellees, and SCHURING FARMS, INC. and BRADLEY MOREHOUSE, Interveners.

CONSIDERED ON BRIEFS ON AUGUST 31, 2015

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT DAY COUNTY, SOUTH DAKOTA, THE HONORABLE SCOTT P. MYREN Judge

N. BOB PESALL Flandreau, South Dakota Attorney for intervener and appellant.

THOMAS J. WELK JASON R. SUTTON of Boyce Law Firm, LLP Sioux Falls, South Dakota Attorneys for appellees, Montana Dakota Utilities Co. and Otter Tail Power.

MARTY J. JACKLEY Attorney General

JOHN J. SMITH KAREN E. CREMER Special Assistant Attorneys General South Dakota Public Utilities Commission Pierre, South Dakota Attorneys for appellee the South Dakota Public Utilities Commission.

ZINTER, JUSTICE.

[¶1.] Montana Dakota Utilities Co. and Otter Tail Power Company (Applicants) filed an application with the South Dakota Public Utilities Commission (PUC or Commission) for a permit to construct a high-voltage electrical transmission line. Appellant Gerald Pesall objected to the project because he was concerned that excavating and moving soil to construct the project might unearth and spread a crop parasite. The PUC granted the permit on conditions, including a condition to identify and mitigate the potential parasite problem. The circuit court affirmed. Pesall's appeal raises two issues: whether the permit condition relating to the parasites constituted an improper delegation of authority to a private party; and, whether the PUC exceeded a twelve-month time limit for rendering complete findings on the application. We affirm.

Facts and Procedural History

[¶2.] On August 23, 2013, Applicants applied for a permit to construct a 345-kilovolt transmission line that would start near Ellendale, North Dakota; would run through Brown, Day, and Grant counties in South Dakota; and would terminate near Big Stone City. The construction involved the suspension of high-voltage electrical lines from steel monopole towers. Each tower would be approximately 120 to 155 feet in height. The towers were to be attached to cylindrical concrete foundations, six to eleven feet in diameter and twenty-five to thirty feet deep. Construction required the removal and disposal of approximately thirty cubic yards of soil for each tower.

[¶3.] Applicants' project would cross one part of Pesall's farm. Pesall intervened and was granted party status.[1] In a subsequent contested-case hearing, Dr. Gregory Tylka, one of Pesall's witnesses, testified about soybean cyst nematodes (SCNs). He testified that SCNs are soil-born parasites that can decrease soybean productivity in infected fields. SCNs may exist in soil at depths of six feet, and they may remain dormant for ten years. SCNs have been found in three of the counties through which the transmission line would traverse. SCNs can spread by any activity that moves soil. There is no dispute that the construction necessary to build the proposed line could spread the parasite. However, wind, water erosion, burns, typical farming practices, and even people walking over infected soil can also spread SCNs. Furthermore, there was no evidence that SCNs infected any soil along the project route.

[¶4.] Before the evidentiary hearing, Applicants and PUC staff submitted a proposed settlement stipulation that would subject the permit to thirty-three conditions. One condition addressed SCN mitigation. Condition 17 provided: "Applicant shall develop and implement a mitigation plan to minimize the spread of [SCNs] . . . in consultation with a crop pest control expert." Pesall objected to the proposed condition at the evidentiary hearing.

[¶5.] Following the hearing, PUC staff and Applicants entered into an amended settlement stipulation that further addressed SCN mitigation. Pesall also objected to this proposal. He did not, however, propose an alternative mitigation plan. Instead, he requested that the PUC deny the permit on grounds relating to SCN mitigation, require the Applicants to reapply within three years, and limit the reconsideration to SCN mitigation. The PUC acknowledged Pesall's concerns, but denied his request. The PUC found that the risk of spreading SCNs from the project was not a serious threat. Additionally, in rendering its final decision to grant the permit, the PUC modified Condition 17 to require PUC oversight of any required SCN mitigation. Modified Condition 17 provided:

After Applicants have finished the soil sample field assessment in accordance with the specifications for such assessment prepared in consultation with an expert in the proper methodology for performing such a sampling survey, Applicants shall submit to the Commission a summary report of the results of the field assessment and Applicants' specific mitigation plans for minimizing the risk of the spread of soybean cyst nematode from contaminated locations to uncontaminated locations. At such time and throughout the construction period, one or more Commissioners or Staff shall have the right to request of Applicants confidential access to the survey results to enable ...

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