In re App. No. P-12.32 of Black Hills Neb. Gas
311 Neb. 813
Neb.2022Background:
- Black Hills Nebraska Gas (Black Hills) applied in 2021 to extend natural gas mains to an OPPD generation site in Sarpy County (Application No. P-12.32); the site lay in Papillion's extraterritorial zoning jurisdiction and Black Hills held a Papillion franchise.
- Metropolitan Utilities District (MUD) protested, arguing the site had been allocated to MUD in a 2010 joint application (Application No. P-0014) that the Public Service Commission (PSC) closed with a "conclusively presumed" finding of public interest because no protests were filed.
- MUD claimed the 2010 PSC order permanently established MUD’s right to serve the area and barred the PSC from approving Black Hills’ 2021 application.
- The PSC held a hearing, found Black Hills presented evidence satisfying the statutory public-interest factors, concluded the 2010 conclusive presumption applied only to the 2010 application, and approved P-12.32; one commissioner dissented.
- MUD appealed, arguing the PSC lacked authority to revisit the 2010 allocation and that MUD had met its burden to overcome Black Hills’ rebuttable presumption under the statute.
Issues:
| Issue | MUD's Argument | Black Hills/PSC's Argument | Held |
|---|---|---|---|
| PSC authority to decide P-12.32 given prior 2010 order | 2010 order conclusively allocated the site to MUD and precludes PSC relitigating public-interest for the same area | Statutes require PSC to decide public interest for each new application; prior order was limited to 2010 conditions | PSC has statutory authority to determine public interest for P-12.32 |
| Effect of § 66-1863(3) "conclusive presumption" from 2010 on later applications | The conclusive presumption is permanent and prevents Black Hills from obtaining approval for the same territory | The presumption is limited to the specific application/time; later applications may be evaluated on current conditions | "Conclusive" presumption is limited to the 2010 application and does not bind future PSC determinations |
| Force of the 2010 joint-application terms and parties’ reliance on its maps | The parties’ 2010 agreement and subsequent reliance should control allocation and bar Black Hills’ entry | The parties cannot contract away the PSC’s statutory duty; reliance is a factor but not dispositive | The 2010 terms and reliance are relevant but do not override the PSC’s duty to consider current public interest |
| Whether MUD overcame the rebuttable presumption favoring Black Hills (service within Papillion extraterritorial jurisdiction) | The 2010 allocation and MUD’s plans show Black Hills’ presumption should be rebutted | Black Hills showed statutory factors (economic feasibility, nonduplication, franchise, lack of nearby MUD mains, changed municipal boundaries) support approval | PSC correctly found MUD did not overcome the rebuttable presumption and approved P-12.32 |
Key Cases Cited
- In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (standard for de novo review of PSC orders)
- Nebraska P. P. Dist. v. Huebner, 202 Neb. 587, 276 N.W.2d 228 (final administrative orders carry reliance interests and finality concerns)
- First Nat. Bank of Bellevue v. Southroads Bank, 189 Neb. 748, 205 N.W.2d 346 (administrative determinations of public convenience and necessity are time‑specific and not res judicata for future applications)
- In re Application of Union P. R. R. Co., 149 Neb. 575, 31 N.W.2d 552 (agency rulings on public‑convenience issues relate to conditions presented at the time)
- Thomson v. Nebraska State Railway Commission, 142 Neb. 477, 6 N.W.2d 607 (agency judgments tied to then‑existing conditions)
- Salem Grain Co. v. City of Falls City, 302 Neb. 548, 924 N.W.2d 678 (interpretation of statutory language regarding conclusive determinations)
- In re Guardianship of Eliza W., 304 Neb. 995, 938 N.W.2d 307 (statutory provisions should be construed to give effect to all parts)