Montana-Dakota Utilities continues to serve Bismarck's Boulder Ridge after the state's Supreme Court stayed District Judge Don Jorgensen's order that the power company turn over service to Capital Electric Cooperative.

On Nov. 8, the Supreme Court ordered the stay, which stems from the Public Service Commission's original order that Capital Electric holds the franchise right. The court also combined MDU's appeal of Jorgensen's and the PSC's order with Capital's challenge of a court upheld decision regarding the city of Bismarck's right to award the franchise to MDU.

The Supreme Court intends on hearing the appeals sometime in January, though no specific date has yet been set. The PSC is continuing a similar case regarding Bismarck's Promontory Point third subdivision, awaiting the Supreme Court's decision regarding Boulder Ridge.

Meanwhile, the Bismarck City Commission will hold a hearing on award of a general franchise for electrical service to MDU on Dec. 12. MDU's 20-year franchise with Bismarck expires at the end of April, so it is now seeking a renewal of that 20-year agreement.

"The Supreme Court issued the stay, saying that the two appeal cases are conflicting," PSC Commissioner Tony Clark says. "MDU is still serving Boulder Ridge."

While the PSC was named as a party in the case in which Capital is challenging Bismarck's award of Boulder Ridge franchise rights to MDU, Clark doesn't expect the PSC will have an active participation. But in Capital's assertion that MDU's service of Boulder Ridge is a violation of the state' Territorial Integrity Act, the PSC is listed as a respondent.

"MDU is challenging the PSC's order that Capital is to be the provider, so we'll be responding along with Capital. We must take that role since it's our ruling," Clark said.

What effect the Supreme Court case might have on Bismarck's award of franchise is uncertain, according to city attorney Charlie Whitman. In previous meetings with the utility providers, the commission has asked MDU and Capital to work out an area service agreement, but in the past year nothing has come forward.

Whitman believes it is possible that the area service agreement might come up during the hearing and that a couple of the city commissioners have talked to him about the possibility. The city attorney feels the Supreme Court's interest in the case will likely have less impact on a commission decision, since it may be months before the court reaches a conclusion.

"Whatever is presented at the public hearing may have an effect on the city commission's decision. I don't know if the area service agreement or Supreme Court case will be made an issue," Whitman said.

MDU spokesman Mark Hanson doesn't believe the Supreme Court cases should have an impact on the award of a franchise, maintaining the issues are separate.

"The oral arguments will be heard in January, a court decision could be months from now," Hanson said. "From the beginning, everybody guessed these issues would end up before the Supreme Court."

But Capital Electric attorney Carol Larson is of a differing opinion on the lack of an area service agreement impact on MDU's franchise.

"We just became aware that the (MDU franchise) renewal process has started," Larson said. "Whether there is an agreement is a fair question for the city to ask and the people of Bismarck. The cooperative and MDU have been meeting on a regular basis and I believe progress is being made."

Bismarck Mayor John Warford said he's disappointed that Capital and MDU have not been able to develop an area service agreement since the Boulder Ridge issue came before the commission a year ago. But the mayor adds, "I'm not holding my breath," that the two utilities will come to an agreement while their appeals are before the Supreme Court.

"Yes, I am disappointed. As I said at the public hearing I have no favorite in this dispute," Warford said. "It's kind of like a dispute between two siblings. Both have their valid points, but I'm disappointed they haven't been able to get together. Perhaps I have a too simplistic point of view, but there seems to be plenty of electrical business. Why they can't equitably resolve this and determine you take this and I'll take this …"

Warford isn't sure whether the inability of the two utilities to develop an area service agreement or their cases before the Supreme Court will impact the city commission's hearing.

"With the franchise coming up at a public hearing, well that's almost independent of the litigation taking place, in my mind. A franchise involves access to a right of way - the rules of the road," Warford said.

The mayor is anxious to see what the public might offer at the hearing.

"I hate to make any definitive conclusion until after we've had the public hearing," Warford said. "I like to listen to all parties, let everybody have their say. Perhaps one of the things that comes out of it is that the companies will agree to work on an area service agreement."

Clark is unsure what will come out of the Supreme Court.

"Once they get a case like this they can do anything they want. But there are some pretty big issues at stake. They could use this as an opportunity to reshape franchises or take a new look at how the TIA is interpreted," Clark said. "They could keep it a very narrow issue, just determining electrical service to Boulder Ridge which would could not have much applicability to future cases. It could be a minor tweak or a major overhaul."

(Reach reporter Gordon Weixel at 250-8255 or gordon.weixel@;bismarcktribune.com.)