NORTHERN STATES POWER COMPANY, doing business as Xcel Energy, Plaintiff-Appellant, v. FEDERAL TRANSIT ADMINISTRATION; Defendant, Minnesota Department Of Transportation; Elwyn Tinklenberg, Commissioner of Transportation, individually and officially; Minnesota Metropolitan Council; State of Minnesota, Defendants-Appellees.
No. 03-1517.
United States Court of Appeals, Eighth Circuit.
Submitted: December 17, 2003. Filed: February 20, 2004.
358 F.3d 1050
Timothy Robert Thornton, argued, Minneapolis, Minnesota (Thomas J. Basting, Jr, on the brief), for appellant. Donald J. Mueting, argued, for appellees Minnesota Department of Transportatiоn, Elwyn Tinklenberg, and State of Minnesota. Lewis A. Remele, Jr., argued, (Charles E. Lundberg, Andrew L. Marshall, and Jessica Mason Piekklo, on the brief), for appellee Minnesota Metropolitan Council. Before WOLLMAN, LAY, and RILEY, Circuit Judges.
The Minnesota Department of Transportation (“MnDOT“) ordered Northern States Power, doing business as Xcel Energy (“Xcel“), to relocate its underground utility facilities beneath Fifth Street in downtown Minneapolis to make way for the Hiawatha Light Rail Transit project (“LRT“). Xcel filed suit for declaratory and injunctive relief, contesting MnDOT‘s authority to give such an order and asserting that it was entitled to the costs of relocation of its facilities. The district court dismissed Xcel‘s claims against all Defendants on summary judgment, holding that MnDOT had the authority to order relocation and that Xcel must pay for the relocation of its utility facilities. Xcel appeals, and we affirm.
I. BACKGROUND
Xcel supрlies electricity to the City of Minneapolis (“City“). Many of the facilities necessary for the distribution of electricity to downtown consumers are located beneath Fifth Street. Xcel‘s right to use Minneapolis streets for its facilities is secured by a Franchise Agreement with the City. Xcel pays the City over $15 million per year for the franchise.
The LRT is an 11.6 mile light rail train project connecting downtown Minneapolis, the Minneapolis/St. Paul International Airport, and the Mall of America, a large-scale commercial shopping center located in the nearby suburb of Bloomington, Minnesota. The downtown section of the LRT route includes a portion of Fifth Street. MnDOT, a state agency, is responsible for design and construction of the project. Upon completion, the LRT will be owned and operated by the Minnesota Metropolitan Council (“Met Council“), a public corporation and political subdivision of the state. The LRT project will cost an estimated $675.4 million, $334 million of which is to be funded by the Federal Transit Administration (“FTA“), an agency within the United States Department of Transportation.
In order to accommodate the LRT, Xcel‘s Fifth Street facilities needed to be relocated. On November 29, 2000, MnDOT ordered Xcel to submit a plan and schedule for relocation of its facilities within thirty dаys, cautioning that all relocation work must be completed by February 1, 2002. Although the thirty-day deadline was later extended, Xcel did not submit a plan to relocate. Instead, Xcel filed suit in federal district court1 against the FTA, the Met Council, MnDOT, the State of Minnesota, and the Commissioner of MnDOT, Elwyn Tinklenberg. Xcel‘s Complaint alleged that: 1) the FTA was required by law to submit a supplemental Environmental Impact Statement, reflecting MnDOT‘s intention to “pave over” Xcel‘s facilities; 2) MnDOT, Met Council, and Tinklenberg violated Xcel‘s procedural due process, substantive due process, and equal protection rights, and also effected an unconstitutional taking; 3) MnDOT, Met Council, and Tinklenberg violated Xcel‘s right to reimbursement under the Franchise Agreement and
Thereafter, in order to keep the LRT project on schedule, the Defendants moved for a preliminary injunction to compel Xcel to relocate its facilities in one part of Fifth Street. The district court granted the injunction, N. States Power Co. v. Fed. Transit Admin., Civ. No. 01-295, 2001 WL 1618532 (D.Minn. May 24, 2001) (unpublished), and this court upheld the decision on appeal. N. States Power Co. v. Fed. Transit Admin., 270 F.3d 586 (8th Cir.2001).2
Xcel now appeals the following issues from the district court‘s grant of summary judgment: 1) that its Franchise Agreement with the City establishes a right to reimbursement; 2) that MnDOT lacks the authority to exercise the state‘s police powers to order Xcel to remove its facilities; 3) that its Complaint satisfied notice pleading requirements, asserting MnDOT‘s regulations were unreasonable; 4) that its due process and takings claims are valid; and 5) that its claims against Commissioner Tinklenberg are not barred by the Eleventh Amendment.
II. DISCUSSION
A. Standard of Review
We review the district court‘s grant of summary judgment de novo. Girten v. McRentals, Inc., 337 F.3d 979, 981 (8th Cir.2003). We must view the record in the light most favorable to Xcel, and give Xcel the benefit of all reasonable inferences. Viking Supply v. Nat‘l Cart Co., 310 F.3d 1092, 1096 (8th Cir.2002).
B. Cost of Relocation
The Supreme Court has clearly stated that “[u]nder the traditionаl common-law rule, utilities have been required to bear the entire cost of relocating from a public right-of-way whenever requested to do so by state or local authorities.” Norfolk Redevelopment and Hous. Auth. v. Chesapeake & Potomac Tel. Co. of Va., 464 U.S. 30, 35, 104 S.Ct. 304, 78 L.Ed.2d 29 (1983) (citing New Orleans Gas Light Co. v. Drainage Comm‘n of New Orleans, 197 U.S. 453, 462, 25 S.Ct. 471, 49 L.Ed. 831 (1905)). Minnesota courts recognize the same rule. See Stillwater Co. v. City of Stillwater, 50 Minn. 498, 52 N.W. 893, 894 (1892); N. States Power Co. v. City of Oakdale 588 N.W.2d 534, 542 (Minn.Ct. App.1999) (holding that no compensation was due to the utility company in light of “the long-held view that a city may regulate a utility without compensation in valid exercise of its police power“).
Xcel seeks to avoid this undisputed precedent by focusing оn the Franchise Agreement. Xcel maintains that § 7 of that agreement specifically provides for payment of relocation costs to Xcel under these circumstances. It states in relevant part:
Except where required solely for a City improvement project, the vacation of any public way, after the installation of electric facilities, shall not operate to deprive [Xcel] of its rights to oрerate and maintain such electrical facilities, until the reasonable cost of relocating the same and the loss and expense resulting from such relocation are first paid to [Xcel].
(Appellant‘s App. at 811.) Xcel argues that this express contractual provision in the Franchise Agreement “overrides” the common law rule, and therefore the district court‘s reliance on New Orleans Gas Light was reversible error.
Xcel‘s arguments are not pеrsuasive. Even assuming that the Franchise Agreement is controlling and creates a legal right that could be enforced against the Defendants,3 it does not provide for reimbursement under these circumstances because the City did not vacate Fifth Street.
Section 3. Vacation of Streets. The City Council may also by a vote of two-thirds of the members thereof vacate any highway, street, lane or alley, or portion of either and such power of vacating highways, streets, lanes and alleys within the City of Minneapolis is vested exclusively in said City Council, and no court or other body, or authority shall have any power to vacate any such highway, street, lane or alley, nor any plat or portion of any plat of lands within said City.
Minneapolis, Minn., City Charter ch. 8, § 3. Likewise, the Minneapolis City Ordinances4 require that a number of formal steps be taken before vacation may occur, including: 1) the referral of any proposed vacation to the planning commission for investigation and report; 2) an invеstigation and a report and recommendation by the commission on the proposed vacation; 3) a public hearing, if thought necessary by either the City Council or the planning commission; 4) an application, including a plat specifically delineating the right-of-way to be vacated, filed with the City Clerk by the person or entity requesting vacation; and 5) a $300 application fee to be paid by the person or entity requesting vacation. Minneapolis, Minn., Code of Ordinances ch. 433 §§ 433.10 to 433.50. Only after these steps are taken may the City vacate a public way under the City Ordinances. See id. It does not appear that these steps were taken in this case.
The district court was also correct to note that Minnesota courts have identified vacation to be a formal act which releases the public‘s entire interest in the right-of-way, reverting ownership of the land occupied by the street to the abutting landowners. See McCuen v. McCarvel, 263 N.W.2d 64, 65-66 (Minn.1978) (explaining that, upon vacation, the land occupied by the right-of-way reverts to the fee owners of the land next to the right of way); In re Hull, 163 Minn. 439, 204 N.W. 534, 537 (1925) (“The vacation of a street has several consequences[,]” including “releas[ing] the estates of abutting landowners from the public easement in the land between the street lines.“); Lamm v. Chicago, St. P., M. & O. Ry. Co., 45 Minn. 71, 47 N.W. 455, 458 (1890) (stating that vacating a street constitutes “giving up and releasing the entire interest of the public in it“).
Xcel argues that the City Council did satisfy the formal procedures for vacating the street by voting 12-0 for vacation. A close review of the record, however, reveals that the issue of vacation was never before the City Council. The vote to which Xcel refers in its brief is simply a vote to authorize City officers to execute a “Construction Cooperation Agreement.” (Appellant‘s App. at 1614-15.) Again, there was no evidence that the vacation procedures were followed here.
Xcel also argues that the word vacation is not capitalized in the Franchise Agreement, and it should therefore be interpreted under its normal meaning and not by reference to any formal procedure. This argument is not particularly convincing, given that “vacation” is not capitalized in the Charter or Ordinances either. Also, the vacation procedures, which have been in place since at least 1960, were surely known to both parties. It stands to reason that the City was familiar with its own Charter and Ordinances, and that Xcel was familiar with the concept of vacation through its extensive dealings with City rights-of-way.
Even if Xcel is correct that the parties were not referring to any formal vacation procedure, we hold that under the plain meaning of the word, the City did not “vacate” Fifth Street. Dictionary definitions of the word “vacate” include: “to deprive of an incumbent or occupant,” Merriam Webster‘s Collegiate Dictionary 1380 (11th ed., Merriam Webster, Inc. 2003); “to give up possession or occupancy of ... to give up or relinquish ... to cause to be empty or unoccupied,” Random House Webster‘s College Dictionary 1442 (2nd rev., Random House 2001); “[t]o cease to occupy or hold; give up,” The American Heritage Dictionary of the English Language 1969 (3d. ed., Houghton Mifflin Co.1996). The City has never fully “given up” its interest in the street. For instanсe, the City has always owned and will continue to own the street. The fact that the Met Council will operate and maintain the LRT does not change this fact. Furthermore, given that Fifth Street is a public right-of-way, the City never really physically “occupied” the street. Thus, Xcel‘s arguments that the City “ceased to occupy” Fifth Street when MnDOT constructed the LRT do not persuade us. The City continued to “occupy” the street to the same extent as it did before the LRT, insofar as it maintained its interest in the street. The only difference is that it cooperated with the state for the construction of LRT on part of the street.
Xcel argues that, at a minimum, § 7 of the Franchise Agreement is ambiguous and therefore presented an issue of fact for the jury that precludes summary judgment. For the reasons stated above, however, we find that the Franchise Agreement is not ambiguous. The district court was therefore correct to decide the issue as a matter of law on summary judgment. See Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 394 (Minn. 1998) (“The construction and effect of a contract presents a question of law, unless an ambiguity exists.“).
In summary, the Franchise Agreement does not provide for relocation costs to Xcel under these circumstances. Therefore, Xcel must bear the cost of relocation of its facilities under the traditional common law rule.
C. MnDOT‘s Authority
Xcel argues that the district court erroneously read
This is not the correct meaning of § 174.35. The plain language of § 174.35 is itself a delegation of police power to the MnDOT Commissioner to “plan, design, acquire, construct, and equip” the LRT line wherever the project would be located “in the metropolitan area.” This plain meaning is supported by the context in which the statute was enacted. When the legislature enacted this statute in 1993, the FTA‘s 1985 Environmental Impact Statement showed that a portion of the proposed route wоuld not include trunk highways. (Appellant‘s App. at 102-106.) We find it unlikely that, given the breadth of the delegation of power to MnDOT under the plain meaning of § 174.35, the legislature intended to limit the Commissioner‘s power in such a way to make it impossible for him to construct the LRT as planned. Instead, we agree with the district court that:
For Xcel to argue that these statutes and regulations apply only to trunk highways ignores the very purpose of the legislation: to рermit MnDOT to use its existing highway authority to create LRT. The legislature is free to extend the application of existing rules by statute, and that is precisely what it did when authorizing LRT under
Minn.Stat. § 174.35 .....
... The Court is persuaded that the Minnesota legislature expressly granted authority and police power to MnDOT to create the LRT project, and that this authority sufficiently empowered the department to order relocation of the Fifth Street utilities at Xcеl‘s own expense.
N. States Power Co. v. Fed. Transit Admin., 2002 WL 31026530 at *9, 10 (D.Minn. Sept.10, 2002) (unpublished). Accordingly, we find that MnDOT and Commissioner Tinklenberg possessed the power to order relocation of Xcel‘s facilities from Fifth Street.
Xcel argues that its claim that MnDOT‘s regulations were unreasonable under
Rule 8(a) of the Federal Rules of Civil Procedure provides that pleadings must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”
Xcel‘s Complaint fails to mention the relevant legal standards that provide a basis for their claim:
Thus, while we recognize that the pleading requirements under the Federal Rules are relatively permissive, they do not entitle parties to manufacture claims, which were not pled, late into the litigation for the purpose of avoiding summary judgment.
E. Constitutional Claims
Xcel also argues on appeal that the district court erred in holding that there was no unconstitutional taking by the Defendants.5 Xcel points to a number of cases in which courts have held that franchise agreements constitute constitutionally-protected property rights, the taking of which requires just compensation. See, e.g., N.Y. Elec. Lines Co. v. Empire City Subway Co., 235 U.S. 179, 192, 35 S.Ct. 72, 59 L.Ed. 184 (1914). As the district court pointed out, however, “Xcel‘s franchise with the City remains undamaged; Xcel merely had to move its facilities from one portion of the street to another, and such regulation is well within the state‘s police powers.” N. States Power Co., 2002 WL 31026530 at *14. Xcel protests on appeal that the district court‘s decision ignores the fact that it was deprived of its right to compensation for relocation under § 7 of the Franchise Agreement. As discussed above, however, the district court correctly found that § 7 does not provide for compensation under these circumstances. Thus, there was no unconstitutional taking.
F. Commissioner Tinklenberg
Finally, it is not necessary to reach the issue of whether the district court properly decided that Xcel‘s claims against Commissioner Tinklenberg violated the Eleventh Amendment under the reasoning of Pennhurst v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Analysis of whether Tinklenberg was a proper defendant would be extraneous, given that we conclude that the district court‘s dismissal of all claims against all Defendants on summary judgment was correct. See In re Snyder, 472 U.S. 634, 642, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985) (“We avoid constitutional issues when resolution of such issues is not necessary for disposition of a case.“).
III. CONCLUSION
For the reasons stated above, the decision of the district court is AFFIRMED.