Jul 20, 2006 - 02:10:13 CDT
The war over Bismarck electrical service continues with two court battles scheduled within the next week.The first legal challenge occurs Friday afternoon, as District Judge Donald Jorgenson hears a Montana-Dakota Utilities request for a stay of the Public Service Commission's decision granting Capital Electric Cooperative rights to Boulder Ridge, a subdivision in north Bismarck.
MDU, the PSC and Capital Electric go head-to-head again on Tuesday, with MDU requesting a writ of prohibition to prevent the PSC from hearing the cooperative's complaint regarding MDU's servicing of another north-side Bismarck subdivision, Promontory PointIII.
For those keeping track, MDU and Capital Electric have debated which company should be serving Boulder Ridge three times. Before the Bismarck City Commission, Jorgenson and the PSC.
The city commission granted MDU service rights based on the power company's general franchise with Bismarck. Jorgenson upheld the city commission's decision.
But the PSC found there is an unnecessary duplication of services and ordered MDU to relinquish service to Capital Electric.
The PSC decision is based on the Century Code's Territorial Integrity Act. The city commission and district judge rulings are based on the state's constitution allowing cities to make decisions on franchising without state interference.
Two opposing decisions, based on two different points of the law. A difference of opinion destined to be resolved by the state's Supreme Court.
MDU spokesman Dan Sharp said the company is taking a different approach in asking for the writ of prohibition, which would keep the PSC from addressing Promontory Point III.
"Our point with the district court is the PSC does not have authority to grant a franchise in the city of Bismarck; that's the authority of the city commission," Sharp said. "The PSC has already ruled once, and we're asking the court to prohibit them to rule or authorize in the case of Promontory Point III."
The PSC ordered MDU, in the case of Boulder Ridge, to cease and desist, and to sell its electrical distribution assets in the area to Capital Electric.
In her response to MDU's request for a writ of prohibition regarding Promontory Point III, Capital Electric attorney Carol Larson called the request "an extraordinary remedy, out of the normal course of legal procedure."
"MDU's claim that it has no adequate remedy regarding Promontory Point is not credible, considering MDU's record in the Boulder Ridge case," Larson wrote.
PSC Chairman Tony Clark said the PSC is not making any claim on the franchise process or that it has any jurisdiction over the Bismarck City Commission.
"All we're saying is that we're charged by the Legislature with a section of law that you can't wastefully duplicate capital intensive utilities," Clark said. "MDUis making the case that the right for a city to have franchises is in the constitution, and it's a city's right."
Clark said that the PSC made its decision based on the Territorial Integrity Act in the Century Code, which guards against checkerboarding of utilities. It's not within the PSC's authority to determine whether the act is constitutional, but it does fall to the PSC to determine whether state law is being broken.
"If we're going by state law, we're (PSC) in charge. If it's a matter of constitutionality, the court has to make that decision," Clark said.
Capital Electric does say that it is serving Promontory Point I and II. He said that Bismarck is perhaps the only major city in North Dakota that doesn't have an area service agreement between the general franchise holder and rural cooperative.
"The reason you don't see this happening in Grand Forks or Fargo is that the utilities have come to an agreement on what they serve. You may occasionally get a complaint within the service area, but they're usually easily taken care of," Clark said. "I guess we're going to see this kind of thing go on in Bismarck until an agreement is worked out. Bismarck is a rapidly growing city, and we have a situation where service territories are very unsettled."
(Reach reporter Gordon Weixel at 250-8255 or gordon.weixel@;bismarcktribune.com.)
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