NOTICE OF HEARING ON PETITION, NSP

Published 3:39pm Wednesday, December 11, 2013 Updated 3:39pm Tuesday, December 10, 2013

(First Publication December 11, 2013)

STATE OF
MINNESOTA
COUNTY OF
OTTER TAIL

DISTRICT COURT
SEVENTH JUDICIAL DISTRICT

NOTICE OF HEARING
ON PETITION
File No.
56-CV-13-3161
Judge Senyk
Case Type:  Condemnation

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.

Wal-Mart Real Estate Business Trust, a Delaware statutory trust; Retail Trust III, a Delaware statutory trust; Unknown Heirs of Robert Bunkowske a/k/a Robert J. Bunkowske; Tamie Bunkowske; Heidi Bunkowske; Stacie VanWatermulen; Don VanWatermulen; U.S. Bank National Association, a national banking association, successor in interest to State Street Bank and Trust Company of Connecticut, National Association; Wal-Mart Stores, Inc., a Delaware corporation; City of Fergus Falls; Magellan Pipeline Company, L.P., a Delaware limited partnership, f/k/a Magellan Pipeline Company, LLC; MDU Resources Group, Inc., a Delaware corporation, d/b/a Great Plains Natural Gas Co., successor in interest to Great Plains Natural Gas Company, a Minnesota corporation; NuStar Pipeline Operating Partnership, L.P., a Delaware limited partnership; Lake Region Electric Cooperative, a Minnesota cooperative, f/k/a Lake Region Co-op Electrical Association, a Minnesota cooperative association; Ottertail Plaza, LLC, a Kansas limited liability company; Bank of the West; Robert J. Bunkowske, LLLP, a Minnesota limited partnership, a/k/a Robert J. Bunkowske Limited Partnership, LLP, and a/k/a Robert J. Bunkowske, LP; State of Minnesota; Otter Tail County,
Respondents.

IN THE MATTER OF THE CONDEMNATION OF CERTAIN REAL ESTATE
IN THE COUNTY OF OTTER TAIL, STATE OF MINNESOTA,
FOR HIGH VOLTAGE TRANSMISSION LINE PURPOSES

TO THE RESPONDENTS HEREIN:
YOU WILL PLEASE TAKE NOTICE, that on February 10, 2014 at 3PM or as soon thereafter as Counsel can be heard, before the Honorable Wally Senyk, at the Otter Tail County Courthouse, 121 West Junius Avenue, Fergus Falls, Minnesota, Petitioners will present their Petition in condemnation, which is now on file with the District Court Administrator.  A copy of the Petition is being served herewith and is made a part hereof by reference as though fully set forth at this point.  The objects of the Petition are stated therein.

YOU WILL PLEASE TAKE FURTHER NOTICE, that Minn. Stat. § 117.055, subd. 2(b) (2013), provides that:
(1) a party wishing to challenge the public use or public purpose, necessity, or authority for a taking must appear at the court hearing and state the objection or must appeal within 60 days of a court order; and

(2) a court order approving the public use or public purpose, necessity, and authority for the taking is final unless an appeal is brought within 60 days after service of the order on the party.

Petitioners seek an order of the Court:  (1) adjudging that the taking is necessary, is for a public use, and is authorized by law; (2) appointing three disinterested persons to serve as commissioners to ascertain and report the amount of damages that will be occasioned by the taking, other than those construction-related damages provided for in the Agricultural Impact Mitigation Plan; and (3) fixing the time and place of the first meeting of the commissioners and their compensation.

Dated:
November 19, 2013        Michael A. Sindt (# 0222331)
Matthew G. Sindt
(# 0393404)
SINDT AND ASSOCIATES
310 4TH Avenue South, Suite 5010
Minneapolis, Minnesota 55415
Telephone:
(651) 270-9400
Fax: (612) 612-3726
Attorneys for Petitioners

ACKNOWLEDGMENT

The undersigned acknowledges that sanctions may be awarded pursuant to Minn. Stat. § 549.211(2013).
Dated:
November 19, 2013        Michael A. Sindt
(# 0222331)

STATE OF
MINNESOTA
COUNTY OF
OTTER TAIL

DISTRICT COURT
SEVENTH JUDICIAL DISTRICT

PETITION
File No.
56-CV-13-3161
Case Type:  Condemnation

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.

Wal-Mart Real Estate Business Trust, a Delaware statutory trust; Retail Trust III, a Delaware statutory trust; Unknown Heirs of Robert Bunkowske a/k/a Robert J. Bunkowske; Tamie Bunkowske; Heidi Bunkowske; Stacie VanWatermulen; Don VanWatermulen; U.S. Bank National Association, a national banking association, successor in interest to State Street Bank and Trust Company of Connecticut, National Association; Wal-Mart Stores, Inc., a Delaware corporation; City of Fergus Falls; Magellan Pipeline Company, L.P., a Delaware limited partnership, f/k/a Magellan Pipeline Company, LLC; MDU Resources Group, Inc., a Delaware corporation, d/b/a Great Plains Natural Gas Co., successor in interest to Great Plains Natural Gas Company, a Minnesota corporation; NuStar Pipeline Operating Partnership, L.P., a Delaware limited partnership; Lake Region Electric Cooperative, a Minnesota cooperative, f/k/a Lake Region Co-op Electrical Association, a Minnesota cooperative association; Ottertail Plaza, LLC, a Kansas limited liability company; Bank of the West; Robert J. Bunkowske, LLLP, a Minnesota limited partnership, a/k/a Robert J. Bunkowske Limited Partnership, LLP, and a/k/a Robert J. Bunkowske, LP; State of Minnesota; and Otter Tail County,

Respondents.

IN THE MATTER OF THE CONDEMNATION OF CERTAIN REAL ESTATE
IN THE COUNTY OF OTTER TAIL, STATE OF MINNESOTA,
FOR HIGH VOLTAGE TRANSMISSION LINE PURPOSES

TO THE ABOVE-NAMED COURT:

Petitioners respectfully represent and allege as follows:
1. Petitioner Northern States Power Company (d/b/a Xcel Energy) is a corporation duly organized and existing under the laws of the state of Minnesota.  This proceeding is taken in Petitioner’s corporate name by its Board of Directors, its governing body.
2. Petitioner Great River Energy is a cooperative corporation duly organized and existing under the laws of the state of Minnesota.  This proceeding is taken in Petitioner’s corporate name by its Board of Directors, its governing body.
3. Petitioner ALLETE, Inc. (d/b/a Minnesota Power Company), is a corporation duly organized and existing under the laws of the state of Minnesota.  This proceeding is taken in Petitioner’s corporate name by its Board of Directors, its governing body.
4. Petitioner Western Minnesota Municipal Power Agency is a municipal corporation and political subdivision duly organized and existing under the laws of the state of Minnesota.  This proceeding is taken in Petitioner’s corporate name by its Board of Directors, its governing body.
5. Petitioner Otter Tail Power Company is a corporation duly organized and existing under the laws of the state of Minnesota.  This proceeding is taken in Petitioner’s corporate name by its Board of Directors, its governing body.
6. Petitioners are public utilities and public service corporations engaged in the business of generating and transmitting electric power and energy in the states of Minnesota, North Dakota, South Dakota, and Wisconsin.
7. In the conduct of their businesses, Petitioners have undertaken to construct and operate a 345 kilovolt (“kV”) high voltage transmission line (“HVTL”) project between Fargo, North Dakota, and Monticello, Minnesota (the “Fargo Project”).
8. On May 22, 2009, the Minnesota Public Utilities Commission (“MPUC”) issued certificates of need to Petitioners for the Group 1 CapX 345 kV transmission projects (the Brookings Project, the Fargo Project, and the La Crosse Project) pursuant to Minn. Stat. § 216B.243 (2009) and Minn. R., Ch. 7849.  See MPUC Docket No. ET-2, E-002, et al./ CN-06-1115 (hereinafter Docket No. 1115).
9. On August 10, 2009, the MPUC issued its Order Granting and Denying Motions for Reconsideration, and Modifying Conditions, in Docket No. 1115.  Said order granting certificates of need, as modified, became final on August 20, 2009.  Minn. Stat. § 216B.27, subd. 3 (2009).  An appeal was taken.  On June 8, 2010, the Minnesota Court of Appeals affirmed the MPUC’s order granting certificates of need for the Group 1 CapX 345 kV transmission projects.  In the Matter of the Application of Great River Energy, Northern States Power Company (d/b/a Xcel Energy) and Others for Certificates of Need for the CapX 345-kV Transmission Projects, Nos. A09-1646 and A09-1652 (June 8, 2010) (unpublished opinion).  No further appeals have been taken, and the certificates of need are final.  Thus, the MPUC has established the public purpose and necessity for the Fargo Project.
10. On June 24, 2011, the MPUC issued its Findings of Fact, Conclusions of Law, and Order Issuing an HVTL Route Permit to Xcel Energy and Great River Energy for the Fargo to St. Cloud 345 kV Transmission Line Project (hereinafter the “Project”), a subset of the Fargo Project, pursuant to Minn. Stat. § 216E.03 (2011) and Minn. R., Parts 7850.1700-7850.2700.  See MPUC Docket No. E002, ET2/TL-09-1056 (hereinafter Docket No. 1056).  On September 21, 2011, Petitioners requested twelve amendments to the approved route under Minn. R., Part 7850.4900.  On January 9, 2012, the MPUC issued its Order Approving Minor Alterations and issuing a Route Permit Amendment as to ten route change requests.  On April 12, 2012, the MPUC issued its Order Approving Minor Alterations and Issuing a Route Permit Amendment as to an additional route change request.  No appeals were taken from the MPUC’s orders, and the MPUC’s route permit orders are final.
11. Minn. Stat. § 216E.03, subd. 2, provides as follows:
Route permit.  No person may construct a high-voltage transmission line without a route permit from the commission.  A high-voltage transmission line may be constructed only along a route approved by the commission.
12. Minn. Stat. § 216E.10, subd. 1, provides as follows:
Site or route permit prevails over local provisions.  To assure the paramount and controlling effect of the provisions herein over other state agencies, regional, county, and local governments, and special purpose government districts, the issuance of a site permit or route permit and subsequent purchase and use of such site or route locations for large electric power generating plant and high-voltage transmission line purposes shall be the sole site or route approval required to be obtained by the utility.  Such permit shall supersede and preempt all zoning, building, or land use rules, regulations, or ordinances promulgated by regional, county, local and special purpose government.
13. Minn. Stat. §§ 216E.12, 222.36, and 301B.02 grant Petitioners the right to acquire real property for the purposes stated herein by exercise of the power of eminent domain, in the manner prescribed by Minn. Stat., Ch. 117 (2013).  Therefore, having been issued a certificate of need and a route permit for the Project, Petitioners are authorized by law to exercise their powers of eminent domain to acquire real property for said Project.
14. To accomplish the foregoing public use and purpose of constructing the Project, it is reasonably necessary and convenient for Petitioners to acquire by exercise of the power of eminent domain perpetual and irrevocable easements and rights-of-way, as tenants-in-common, to survey, construct, operate, maintain, use, upgrade, rebuild, relocate or remove a transmission line facility with one or more circuits, with all towers, structures, poles, foundations, crossarms, cables, wires, guys, supports, counterpoises, fixtures, and equipment related to said transmission line facility, together with communication equipment relating to the operation of such transmission line facility through, over, under, and across the real property described in Exhibit A, attached hereto and made a part hereof as though fully set forth at this point.  The easement rights to be acquired by Petitioners as tenants-in-common are specifically described in Exhibit B, attached hereto and made a part hereof as though fully set forth at this point.
15. The owners of the real property described in Exhibit A hereto shall have the full use and enjoyment of the easement areas and rights-of-way, so long as said use and enjoyment is consistent with Petitioners’ rights as set forth herein.  Exhibit B hereto, in addition to describing the easement rights to be acquired, also describes and defines the owners’ rights to use and enjoy the easement areas and rights-of-way.
16.  The easements and rights-of-way to be acquired by Petitioners as tenants-in-common are entirely within the route designated by the MPUC in Docket No. 1056.
17. Petitioners have complied with the provisions of Minn. Stat. §§ 117.036 and 117.054 (2013).
18. The legal description of the real property affected by the takings and the names of those appearing of record or known to Petitioners to be the owners of said real property or interested therein, including all whom Petitioners have, by investigation and inquiry, been able to discover, together with the nature of the ownership of each, as ascertained by Petitioners, are set forth in Exhibit A hereto.
19. Petitioners, by resolutions of their governing bodies, have authorized the acquisition of the real property described in Exhibit A hereto by the exercise of their rights of eminent domain, including the use of the “quick-take” provision of Minn. Stat. § 117.042 (2013).
20. The property to be acquired through this proceeding is located in Otter Tail County, Minnesota.
WHEREFORE
, Petitioners pray for an order of this Court as follows:
1.    Adjudging that said takings are for a public use and purpose, are necessary, and are authorized by law, and granting the Petition;
2.    Appointing three disinterested persons, and at least two alternates, to ascertain and report the amount of damages that will be sustained by the several owners on account of the takings; fixing the time and place of the first meeting of the three commissioners; prescribing their compensation; and requiring the commissioners to file their report with the District Court Administrator within 365 days from the date of the order appointing the commissioners, unless said time be further extended by order of the Court; and
3.    For such other and further relief as may be proper and pursuant to law.

Respectfully submitted,
Dated:
November 19, 2013        Michael A. Sindt
(# 0222331)
Matthew G. Sindt
(# 0393404)
SINDT AND ASSOCIATES
310 4TH Avenue South, Suite 5010
Minneapolis, Minnesota 55415
Telephone:
(651) 270-9400
Fax:  (612) 612-3726
Attorneys for Petitioners

ACKNOWLEDGMENT
The undersigned acknowledges that sanctions may be awarded pursuant to Minn. Stat. § 549.211 (2013).
Dated:
November 19, 2013        Michael A. Sindt
(# 0222331)

Additional documents on file with the Otter Tail County District Court at xxx Junius Ave, Fergus Falls, Mn. Documnets available upon request,
SINDT AND ASSOCIATES
310 4TH Avenue South, Suite 5010
Minneapolis, Minnesota 55415
Telephone:
(651) 270-9400
Fax: (612) 612-3726
Publication Dates: December 11, 17, 24, 2013.

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