Jurisdictional Statement — Omni Farms, Inc. v. Arkansas Power & Light Co.

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80-1486

Office-Supreme Court, U.S.

IN THE

Supreme Court Of The United-States—

No. ____

OCTOBER, 1980 TERM

Omni Farms, Ine. .........secccccecccvcccesess Appellant

Arkansas Power & Light Company.......--.---- Appellee

ON APPEAL FROM THE

SUPREME COURT OF ARKANSAS

JURISDICTIONAL STATEMENT

JOHN B. THURMAN

THURMAN & CAPPS, LTD.

2504 McCain Blvd.

Suite 201

No. Little Rock, AR 72116

(501) 758-1254

Attorneys for Appellant

Omni Farms, Inc.

QUESTIONS PRESENTED ON APPEAL

WHETHER THE APPELLEE IN GOOD FAITH

NEGOTIATED AS REQUIRED BY THE ARKANSAS

EMINENT DOMAIN STATUTE.

II.

WHETHER THE APPELLANT’S DUE PROCESS

RIGHTS WERE VIOLATED BY APPELLEE’S FAILURE

TO GIVE PERSONAL NOTICE OF THE ADMINISTRA-

TIVE HEARING ON 1HE MAJOR UTILITY ROUTE

AFFECTING ITS REAL PROPERTY, AS ALLOWED BY

ARKANSAS STATUTE.

TABLE OF CONTENTS

Page

Questions Presented on Appeal ...............0008- Index

ee OE BTID 68 kc bch es cies i send esn Verne Index.

Official and Unofficial Reports Citation ............. Index

Gowunils ter Satigdietion .. 2. 5 cic enc classes 1

Constitutional Provisions and Statutes................4. 2

OMENS GE CO GOOD. 0 sic sce hc cnc datcnnnsesseueeeeee 3

Statement of Substantial Questions ................0008: 4

Appendix:

Opinion of Supreme Court of Arkansas............ 10

Order of Circuit Court of Lonoke County,

NEE hice ee ccvcdeVewesebacaeeusekaaee eee 18

Notice of Appeal to the Supreme Court

of the Untied Slaten . socio isic'sk ccs sce 22

Petrie Fer TOMORTIMAG . oo ccccricccccicevesedavan 24

Denial of Petition for Rehearing................... 27

“Utility Facility Environmental and

Economic Protection Act” ............seeecccce: 28

TABLE OF AUTHORITIES

Page

Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780,

bee oR Behl. oo | ro ree errr ee eres

Henderson Light & Power Co. v. Blue Ridge LR. Co,

243 U.S. 563, 61 L.Ed. 900, 37 S.Ct. 440 (1917).......... 2

Mullane v. Central Hanover Trust Co., 339 U.S. 306,

70 S.Ct. 652, 94 L.Ed. 865 (1950)... 6... eee eee eee eee 5)

Myles Salt Co. v. Board of Commissioners, 239

U.S. 478, 60 L.Ed. 392, 36 S.Ct. 204 (1916) ..........5-- 2

OFFICIAL AND UNOFFICIAL REPORTS CITATION

Omni Farms, Inc. v. Arkansas Power & Light Co.,

271 Ark. 61, 607 S.W.2d 363 (1980)

Supreme Court Of The United States

| Me

OCTOBER, 1980 TERM

Omni Farms, Inc. .......secceeeccesehecececees Appellant

Arkansas Power & Light Company ........+++++- Appellee

ON APPEAL FROM THE

SUPREME COURT OF ARKANSAS

JURISDICTIONAL STATEMENT

GROUNDS FOR JURISDICTION

This is an appeal from the Arkansas Supreme

Court's decision affirming the Circuit Court's Order of

Entry and allowing Appellant's land to be condemned. The

Supreme Court of Arkansas delivered its opinion on

November 10, 1980. A Petition For Rehearing was timely

filed by Appellants but the Petition was denied by Per

Curiam Order on December 8, 1980. The Notice Of Appeal

To The Supreme Court of the United States was filed with

the Supreme Court of Arkansas on December 31, 1980.

This appeal is taken pursuant to 28 U.S.C. §1257(2).

This Court has found in several cases that a federal question

is involved where the taking of property without due

process of law, in violation of the Fourteenth Amendment,

is presented. Myles Salt Co. v. Board of Commissioners, 239

U.S. 478, 60 L.Ed. 392, 36. S.Ct. 204 (1916); Henderson Light

& Power Co. v. Blue Ridge IR. Co., 243 U.S. 563, 61 L.Ed.

900, 37 S.Ct. 440 (1917). In the alternative, should this Court

find the appeal improvidently taken, Appellant relies upon

28 U.S.C. §2103.

CONSTITUTIONAL PROVISIONS AND STATUTES

U.S. Const. Amend. XIV, §1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

II.

Utility Facility Environmental and

Economic Protection Act, Ark. Stat.

Ann. §73-276 — 73-276.18 (1977)

(Text found in Appendix at page 28.)

STATEMENT OF THE CASE

Appellee is an Arkansas corporation whose principal

business activity is the production and sale of electrical

power. Appellant is an Arkansas Corporation and the

owner of certain real property located in Lonoke County,

Arkansas. Appellee has sought to condemn this property by

exercising the power of eminent domain authorized by Ark.

Stat. Ann. §73-276 et. seq.

Certain Administrative hearings were held before

the Arkansas Public Service Commission as required by

Ark. Stat. Ann. §73-276 et. seg. Notice of the final hearing

was given by publication, as required by the Statute. By

Order of the Public Service Commission, Notice of the final

hearing was given in a letter sent by ordinary mail.

Appellee filed a condemnation suit in Lonoke

County Circuit Court on March 10, 1980 in which it asked

the Court for an Order of Entry onto Appellant's Lonoke

County real property and for the condemnation of said

property. By agreement of counsel, a hearing was set for

April 7, 1980.

In its Answer, Appellant asserted that the

condemnation action filed by Appellee was unconstitutional

under the due process clauses contained in the United

States and Arkansas Constitutions. Appellant further

contended that Appellee had made no effort to negotiate a

settlement with Appellant as required by Ark. Stat. Ann.

§73-276.15.

On April 7, 1980, the Court held a hearing to consider

Appellant’s arguments raised by way of Answer.

Testimony was taken, exhibits were offered, and arguments

were presented.

On May 2, 1980 the Circuit Court entered its Order of

Entry, overruling Appellant’s contentions, and authorizing

Appellee to condemn Appellant's property.

Appellant appealed the decision of the Circuit Court

of Lonoke County to the Supreme Court of Arkansas by

giving notice on April 28, 1980. In its Brief to the Supreme

Court of Arkansas, Appellant again raised the issue of

denial of due process rights under the U.S. Constitution as

well as the issue of Appellee’s failure to negotiate as

required by Ark. Stat. Ann. §73-276.15.

The Arkansas Supreme Court delivered its opinion

on November 10, 1980. The Court found that under Ark.

Stat. Ann. §73-276.15 negotiation with the landowner is

mandatory prior to bringing a condemnation action;

however, the Court further found that preliminary

negotiations are not jurisdictional. On the constitutional

issue, the Court found that Appellant had not suffered a

denial of due process despite its lack of notice of the

impending condemnation.

Appellant filed a Petition For Rehearing with the

Supreme Court of Arkansas on November 21, 1980. By Per

Curiam Order dated December 8, 1980, the Petition for

rehearing was denied.

STATEMENT OF SUBSTANTIAL QUESTIONS

The due process question presented in this appeal

deals with the issues of notice and opportunity to be heard

in the context of an eminent domain case. The Fourteenth

Amendment to the federal Constitution prohibits the

deprivation of property without due process of law.

Numerous cases have stated that due process requires that

no one be deprived of their property or rights without being

given an opportunity to be heard. Mullane v. Central

Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865

(1950); Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28

L.Ed.2d 113 (1971). Due process further requires that a

meaningful opportunity to be heard, preceded by notice, be

given before one may be deprived of a significant property

interest. Boddie v. Connecticut, supra. In the case at hand,

no serious contention can be made that ownership of real

property is not a significant property interest.

While there are situations where some valid,

overriding state interest may justify postponement of a

hearing until after the event, condemnation of real estate

does not fit into that category. There is no risk of the

property being removed or destroyed as might happen with

movable personal property. Further, once the land is

entered onto, cleared, and huge metal transmission towers

put in place, the landowner can never be placed in the same

position again.

Under the Arkansas statutory scheme, as found in

Ark. Stat. Ann. §73-276 et. seq., the Arkansas Public

Service Commission is given the exclusive and final

jurisdiction to determine the location and route for a major

utility line. The P.S.C. is given exclusive authority to grant

a “certificate of environmental compatability and public

need” following the submission of an application by the

utility and a hearing. While a copy of the application and

notice of the hearing must be given to certain public bodies

and public officials, the public and affected landowners are

“served” by publication in newspapers of general

circulation. Ark. Stat. Ann. §73-276.4(c).

After the Certificate is issued to the Utility,

negotiation for the sale of land must be initiated with the

landowner. If a settlement is noi reached, the utility simply

files a Condemnation action in the county in which the land

is located. The Utility is required to deposit with the Court

a sum of money determined by the Court to be sufficient to

secure compensation. The issues of location of the line and

necessity are not considered by the Court. The Arkansas

legislature has given the P.S.C. the exclusive jurisdiction to

determine these issues.

What results from this scheme is that the landowner

is precluded from participating in the determination of

where a utility line will be located unless they intervene in

the P.S.C. case. The statutory plan outlined above requires

notice by publication only.

This case is then very similar to Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306 (1950). There, a

New York Statute allowed for a common trust fund for

small trusts. The only notice required, by the law, of the

accounting to the Court was by newspaper publication,

after which the account was made binding and conclusive on

all beneficiaries.

The Supreme Court stated that “the fundamental

requisite of due process of law is the opportunity to be

heard.” 339 U.S. 306, 313-14. The Court further stated:

An elementary and fundamental requirement of due

process in any proceeding which is to be accorded

finality is notice reasonably calculated under all the

circumstances to apprise interested parties of the

pendency of the action and afford them an opportunity

to present their objections (citations omitted, 339 U.S.

306, 314-315).

The Court held that publication is sufficient only for

those whose addresses were unknown; statutory notice

deprived those whose names and addresses were known to

the bank of due process of law.

Based upon this reasoning, Appellant submits that

there are substantial questions of law which require plenary

consideration by this Court.

Respectfully submitted,

THURMAN & CAPPS, LTD.

BY:

JOHN B. THURMAN

2504 McCain Blvd.

Suite 201

No. Little Rock, AR 72116

(501) 758-1254

Attorneys for Appellant

Omni Farms, Inc.

CERTIFICATE OF SERVICE

I, John B. Thurman, Attorney of Record in this

Appeal, do hereby certify that the appropriate number of

copies of Appellant’s Omni Farms, Inc., Jurisdictional

Statement have been delivered to the undersigned parties

by placing them in the U.S. Mail, properly addressed, and

with first-class postage pre-paid. Since 28 U.S.C. §2403(b)

may be applicable, the Jurisdictional statement has been

served on the Arkansas Attorney General in the same

manner.

JOHN B. THURMAN

Attorney For

Omni Farms, Inc.

Robert Robinson

Attorney for Arkansas

Power & Light

1550 Tower Bldg.

L.R., AR 72201

The Honorable Steven Clark

Arkansas Attorney General

Justice Building

Little Rock, AR 72201

Se cihtiniitiant

IN THE SUPREME COURT OF THE UNITED STATES

October, 1980 Term

OMNI FARMS, INC. APPELLANT

VS.

ARKANSAS POWER & LIGHT APPELLEE

ENTRY OF APPEARANCE

I, John. B. Thurman, of Thurman & Capps, Ltd. law-

firm, hereby enter my appearance as counsel of record for

the Appellant, Omni Farms, Inc.

Respectfully submitted,

THURMAN & CAPPS, LTD.

BY:

JOHN B. THURMAN

APPENDIX

SUPREME COURT OF ARKANSAS

No. 80-137

OMNI FARMS, INC., Opinion Delivered Nov. 10, 1980.

Appellant, Appeal from Lonoke

V. Circuit Court; Cecil

Tedder, Judge.

ARKANSAS POWER &

LIGHT COMPANY,

Appellee. Affirmed.

GEORGE ROSE SMITH, Associate Justice

GEORGE ROSE SMITH, J. In August, 1978, the

Public Service Commission authorized the appellee, Arkansas

Power & Light Company, to construct a generating plant in

Independence county and about 170 miles of connecting high-

voltage transmission lines to points in Pulaski and Lonoke

counties. Pursuant to that authorization A.P. & L. brought

this condemnation suit 18 months later to acquire a 180-foot

right of way across a cattle ranch owned by the appellant,

Omni Farms, Inc., in Lonoke County. In its answer Omni

asked that the action be dismissed because, first, A.P. & L.

had allegedly made no effort to negotiate a settlement with

Omni before filing suit, and second, “the laws relied upon by

Plaintiff are unconstitutional on due process grounds.”

After a preliminary hearing the trial court rejected

both defenses, approved the condemnation, and ordered a

$15,000 deposit. as the estimated value of the 17.14 acres being

taken. The court, however, to avoid a possibility of irreparable

injury to Omni, stayed the judgment pending this appeal. The

case has not yet been tried on the main issue of the amount of

compensation to be awarded. Our jurisdiction rests on Rule

29 (1) (c).

At the outset, A.P. & L. asks that the appeal be

dismissed for want of an appealable order. The record

indicates that the proposed transmission lines will be strung

on tall metal towers, embedded in concrete. At the oral

argument counsel for A.P. & L. conceded that if the

construction is allowed to proceed, it will be impossible in the

event of a reversal for Omni's land to be restored to its

previous condition. We conclude that this is one of the

comparatively rare instances, foreseen by some of our earlier

opinions, in which an order must be regarded as appealable

because otherwise the order would divest a substantial right

in such a way as to put it beyond the power of the court to

place the party in its former condition. See Johnson v.

Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967); Batesville v.

Ball, 100 Ark. 496, 140 S.W. 712, Ann. Cas. 1913C, 1317 (1911).

On the merits, Omni first argues that the controlling

statute mandatorily requires the condemnor to negotiate

with regard to the purchase price before bringing suit to

condemn and that a failure to negotiate is a jurisdictional

defect so fundamental as to require dismissal of the action.

We do not agree. Unquestionably the legislature is

free to require preliminary negotiation as a condition

precedent to the exercise of the power of eminent domain.

Courts elsewhere have frequently construed as mandatory

various statutes contemplating such preliminary

negotiations and have sometimes indicated that a

condemnation order entered without prior negotiation is

absolutely void for want of jurisdiction. The cases have

been extensively collected in Nichols’ Eminent Domain,

§24.62 (rev. 3d ed., 1976), and need not be reviewed here.

The language of the particular statute, however,

must be considered. Our General Assembly has said, for

example, that in certain condemnation actions brought by

state colleges the board of trustees must first “exercise

every reasonable effort to obtain the property in question

at a reasonable price by negotiation, and the Trial Court

shall so find.” Ark. Stat. Ann. §80-3318 (Repl. 1980). If

language such as that were now before us, Omni's argument

would have greater force.

The statute controlling this case is vastly different

from that just quoted. It provides that whenever a utility

company has obtained from the Public Service Commission

the required certificate of environmental compatibility and

public need, and the utility “is unable to reach agreement

with the owner of land .. . to construct, operate, maintain

and obtain reasonable access to the major utility facility, it

may acquire the same by the exercise of the power of

eminent domain.” Ark. Stat. Ann. §73-276.15 (Repl. 1979). It

was evidently the intention of the legislature to require

preliminary negotiation, which has often proved to be

immensely beneficial to both parties when a condemnation

suit is being considered. We accordingly hold, in harmony

with the great weight of authority, that the statute now in

question imposes a mandatory duty on the utility company

to negotiate.

It does not follow, however, that the duty is

necessarily of such indispensable importance as to be

jurisdictional. By analogy, many steps required by the

election laws are mandatory, but noncompliance does not

destroy the validity of the election unless the statute

expressly so declares or unless the particular provision

affects an essential element of the election, as by

obstructing the free and intelligent casting of the vote. Orr

v. Carpenter, 222 Ark. 716, 262 S.W.2d 280 (1953).

The statute now in question does not expressly

declare preliminary negotiations to be jurisdictional, nor in

our opinion does it do so by implication. The opportunity to

negotiate does not end with the filing of the suit, especially

as severai months may pass before the case is set for trial.

Moreover, if negotiation were a jurisdictional requirement,

it would follow that a condemnation judyment entered after

a long and hotly contested trial would be void if it were later

shown that the condemnor failed to negotiate. The wording

of the statute would have to be decidedly more imperative

than it is before we could regard negotiation as

jurisdictional.

The trial court's finding that A.P. & L.'s negotiation

procedure met the requirements of the law is not clearly

erroneous. A.P. & L.'s appraiser testified that the value of

the 17.14 acres being taken for a right of way was $875 an

acre, making a total of about $15,000. Another witness for

A.P. & L. testified that he had authorized settlement offers

through the company’s attorneys; the trial court took notice

that the negotiations had not been successful. William Fay

Wright, Omni's president, testified on cross examination

that on the morning of the hearing Omni's attorney had

informed Wright of an offer of $15,000. “When I heard

$15,000, it was so ridiculous he [the attorney] wouldn't bring

anything like that to me. It would only tend to upset me.”

He said the offer would not be accepted under any

circumstances. Negotiations need not be carried farther

than to demonstrate the impossibility of agreement, which

may be shown by the landowner'’s willingness to sell only at

a price which the condemnor deems excessive. Kerr v.

Raney, 305 F. Supp. 1152 (W.D. Ark. 1969); see also Nichols,

supra. That appears to have been the situation in the case at

bar; so no error is shown.

Omni’s alternative ground for dismissal is _ its

assertion that the governing statute denies due process of

law. The statute is Act 164 of 1973, amended by Act 866 of

1977. Ark. Stat. Ann. §§73-276.1 through -276.18. Omni's

argument is really directed not so much to the terms of the

statute as to Omni’s failure to receive sufficient notice of the

Public Service Commission proceeding by which A.P. & L.

was authorized to cross Omni’s land. Consequently we need

discuss the statute and the proof only as they relate to the

matter of notice. Upon this branch of the case it must be

kept in mind that Omni is attacking the procedure as a

denial of due process and therefore has the burden of

proving its invalidity. Rebsamen Motor Company v.

Phillips, 226 Ark. 146, 289 S.W.2d 170, 57 A.L.R. 2d 1256

(1956); State ex rel. Kimberlite Diamond Mining & Washing

Co. v. Hodges, 114 Ark. 155, 169 S.W. 942, L.R.A. 1916F, 122

(1914).

The statute requires the Commission to make

various findings as to the probable environmental impact of

the proposed facility. §73-176.8. With respect to such

matters of general public interest the statute provides for

actual notice to specified governmental agencies and for

notice by publication to persons residing in affected

municipalities and counties. §73-276.4. Omni does not appear

to be concerned about these environmental matters, but

even if it were concerned it has not met its burden of

proving any want of notice in this aspect of the case.

What Omni does seem to be concerned about, as

nearly as we can tell from its meager proof, is the particular

location of the right of way that will cross its land. On this

point Wright mentioned an airport that Omni has built on

its land, but he did not say just how the proposed line might

interfere with the airport (except possibly by a reference to

a plastic overlay which has not been brought to our

attention). In fact, the construction of the airport, which

took only about two months, was not even begun until some

three months after A.P. & L. had notified Omni in

September, 1979, that in the very near future surveyors

would be on the land to make a final location of the

transmission line route on the ground.

As we understand Omni's argument, it is contended

that Omni did not receive adequate notice about just where

the transmission line was going to cross its property. Omni

concedes that it is not entitled to procedural due process

concerning the necessity for the taking unless the

legislature has provided a forum in which the landowner

may contest that necessity. Bragg v. Weaver, 251 U.S. 57

(1919). Omni argues that the legislature did designate the

Public Service Commission as such a forum, but Omni did

not receive adequate notice of the proceedings to be

conducted by the Commission. Specifically, Omni insists

that although it received letters from A.P. & L. informing it

of the pendency of the proceedings, those letters stated that

Omni would be notified of the time and place of a hearing to

be scheduled by the Commission in connection with A.P. &

L.’s application as soon as the Commission advised A.P. &

L. of the schedule. That follow-up information was not

received by Omni.

We do not find this argument persuasive. The

Commission’s primary concern was with environmental

matters, which were presumably to be considered at the

hearing to which the letters referred. Omni has made no

effort to show that the hearing mentioned in the letters

would have touched upon any issue with which Omni was

concerned.

Of course, the Commission had to fix the

approximate location of the transmission lines to assess

their environmental impact. That was eventually done, and

the letters sent by A.P. & L. to Omni enclosed aerial

photographs of Omni’s land, showing the proposed location

of the lines. Even when the Commission finally fixed the

location of the lines in its order granting the application, the

order expressly allowed some variation, up to 300 feet and

possibly more, in the exact location of the right of way to

accommodate the landowner.

We emphasize the fact that the two letters, one

received by Omni in February, 1978, and the other in

January, 1979, contained much substantial information in

addition to the aerial photographs. Omni was informed of

the nature of the proceeding before the Public Service

Commission. Omni was told that information about its right

to intervene in the proceeding could be obtained from the

Secretary of the Commission, whose name, address, and

telephone number were given. The writer of the letters

offered to discuss any questions about the proposed facility

with Omni, giving his name and address, with a long

distance telephone number that Omni could use free of

charge.

Neighbors of Omni did call A.P. & L. in response to

similar letters. The Commission’s final order details

modifications in line locations made in response to

interventions by other landowners. The letters were

certainly sufficient to put a reasonably prudent person on

inquiry, which means that Omni is charged with notice of all

facts such an inquiry would have revealed. Kellogg-

Fontaine Lbr. Co. v. Cronic, 219 Ark. 170, 240 S.W.2d 842

(1951). Unquestionably Wright must be taken to have

known that the Commission would not hold a hearing upon

Omni's particular probiems with respect to its particular

land unless Omni took the initiative in bringing those

problems to the Commission’s attention. But no move in

that direction was made. Omni did file a petition for

rehearing with the Commission, but it is not shown what it

contained nor whether Omni might have had a remedy by

appealing from the denial of the petition.

Omni's due process argument boils down to this. It

complains that A.P. & L. failed to give it the promised

notice of a Commission hearing, the nature of which Omni

has not shown. Omni did receive actual notice, once in

February, 1978, and again in January, 1979, that the line

was to cross its ranch. Details and sources of information

were supplied, but Omni and Wright apparently paid little if

any attentiun to the matter until receiving notice that A.P.

& L.’s surveyors would be on the ground soon after

September, 1979, more than 18 months after the February

letter. We still do not know exactly what Omni's objections

to the proposed line may be, because the record is

practically silent on that pivotal point. We cannot say that

Omni has proved a denial of due process of law by any lack

of notice of the impending condemnation.

Affirmed.

Fogleman, C.J.,and Hickman, J., concur.

IN THE CIRCUIT COURT

OF LONOKE COUNTY, ARKANSAS

ORDER FILED MAY 2, 1980

ARKANSAS POWER & LIGHT COMPANY PLAINTIFF

VS. NO. 80-103

OMNIFARMS, INC. DEFENDANT

ORDER

On this 7th day of April, 1980, is presented to the

Court the Complaint of Arkansas Power & Light Company

for condemnation and for an easement for transmission

lines as part of a major utility facility for the construction

facilities designated for operation at a capacity of 50

megawatts or more on the property of the Defendant

described in the Complaint. Arkansas Power & Light

Company appearing by its attorneys, the Honorable James

F. Swindoll and the Honorable Robert L. Robinson and the

Defendant, appearing by its attorneys, the Honorable John

Thurman and the Honorable Rita Gruber, and the Court

convening in White County, Arkansas and after reviewing

the sworn testimony, the exhibits thereto, the pleadings

filed herein, and the applicable law, the Court made the

following findings of fact and conclusion of law:

1. That the parties have voluntary waived venue in

this case so that the matter might be heard in the Circuit

Court of White County, Arkansas.

2. That the applicable laws, statutes and

regulations which establish the guidelines and procedures

by which the Plaintiff, as a private utility company, may

acquire private property by eminent domain action,

establish the necessity therefor, and prescribe the

procedures for such action, are deemed by this Court to be

constitutional and not in deprivation of the due process

rights of the Defendant.

3. That the procedure followed by Plaintiff in its

negotiations with Defendant, the filing of pleadings, and the

deposit of funds, adequately followed the requirements of

the law.

4. That although the Court believes’ that

Defendant's challenge of the sufficiency of the notice of the

filing of the application and notice of the subsequent

hearing thereon before the Public Service Commission

should be presented to the Public Service Commission as

prescribed by Title 73 of the Arkansas Statutes, this Court,

nevertheless, finds that Plaintiff sufficiently complied with

the requirements of the law with regard to notice in all

respects.

_ 5. That this Court treats the Defendant's request

for denial of an immediate Order of Entry in favor of

Plaintiff as being tantamount to a prayer for injunctive

relief, which this Court hereby denies.

6. Based upon the proof submitted to the Court, the

Court finds that Plaintiff should be required to deposit

$15,000 with the Circuit Clerk of Lonoke County, Arkansas,

as a prerequisite to obtaining the Order for Entry.

7. The Court further finds that this Order is an

appealable Order in that (a) it is determinative of the

constitutional questions raised by the Defendant; (b) it

effectively denies injunctive relief sought by Defendant;

and, (c) delay in an appeal until such time as the proposed

utility line is in place and a trial is had on the merits of the

case could result in irreparable damage to the Defendant.

IT IS, THEREFORE, CONSIDERED, ORDERED

AND ADJUDGED that the Plaintiff, Arkansas Power &

Light Company, be and it is hereby authorized to condemn

said lands of the Defendant in Lonoke County, Arkansas,

for the purpose of locating, clearing and constructing said

transmission facilities on an easement described as follows:

A right-of-way 180 feet wide across the East

Half Northeast Quarter (E-'/2, NE-'4) of Section 35, and

the Southeast Quarter, Southeast Quarter (SE-'4, SE-

14) of section 26, and the Southwest Quarter,

Southwest Quarter (SW-'4, SW-'4) of Section 25 all in

Township 5 North, Range 10 West, Lonoke County,

Arkansas, said right-of-way extending 90 feet on each

side of the center line of the proposed transmission line

as now staked, for an approximate distance of 4,210

feet.

The Plaintiff, Arkansas Power & Light Company, is

directed to deposit with the Clerk of this Court, cash in the

sum of $15,000 for the protection of the Defendant, which

will guarantee the Defendant that the Plaintiff will satisfy

any judgment which may be entered against it at a trial of

this cause, and the Clerk may deposit the said sum of cash in

a suitable bank or savings and loan association where said

money will draw interest at the highest rate now being paid

by banks or savings and loan associations’ regular accounts

within the State of Arkansas, that said sum of money to

remain in said bank or savings and loan association subject

to further orders of this Court.

IT IS, THEREFORE, ORDERED that this cause be

tried before a jury for the assessment of just compensation

as soon as can be reached on the calendar.

ls/ Cecil C. Tedder

CIRCUIT JUDGE

May 1, 1980

DATE

APPROVED:

HOUSE, HOLMES & JEWELL

1550 Tower Building

Little Rock, Arkansas 72201

BY: /s/ James F. Swindoll

James F. Swindoll

Attorneys for Arkansas Power & Light Company

APPROVED:

THURMAN & CAPPS

BY:

John Thurman

Attorney for Omni Farms, Inc.

IN THE SUPREME COURT

OF THE STATE OF ARKANSAS

Notice Filed 12-31-80

OMNI FARMS, INC. Appellant

VS. Lonoke No. 80-137

ARKANAS POWER & LIGHT COMPANY Appellee

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that Omni Farms, Inc., the

Appellant above named, hereby appeals to the Supreme

Court of the United States from the final judgment of the

Supreme Court of ihe State of Arkansas affirming the

Order of Entry entered in this action on May 1, 1980, by the

Circuit Court of Lonoke County, Arkansas.

IT.

This appeal is taken pursuant to 28 U.S.C. Section

1257 (1).

ITt.

That Appellant's Petition For Rehearing was denied

by the Supreme Court of Arkansas on December 8, 1980.

/s/ John B. Thurman

THURMAN & CAPPS, LTD.

Attorney for Omni Farms, Inc.

#2504 McCain Place, Suite 201

North Little Rock, AR 72116

(501) 758-1254

Proof of Service

I, Rita W. Gruber, an Attorney in the office of

Messrs. Thurman & Capps, Ltd., Attorneys of record for

Omni Farms, Inc., Appellant herein, depose and say that on

the 31 day of December, 1980, I served a copy of the

foregoing Notice of Appeal to the Supreme Court of the

United States on Arkansas Power & Light Co., Appellee

herein, by mailing a copy of same to Robert L. Robinson, Jr.,

of HOUSE, HOLMES & JEWELL, P.A., Attorneys for

Appellee, by U.S. Mail, postage prepaid, 1550 Tower

Building, Little Rock, Arkansas 72201.

I further certify that a copy of this Notice of Appeal

was sent this same day to the Honorable Cecil Tedder,

Circuit Judge, Wilbur D. Mills Courts Building, Searcy,

Arkansas 72143.

/s/ Rita W. Gruber

RITA W. GRUBER

SUBSCRIBED and SWORN to before me, at North

Little Rock, Arkansas this 31 day of December, 1980.

/s/ Melanie Poe

NOTARY PUBLIC

MY COMMISSION EXPIRES:

May 17, 1982

SUPREME COURT OF ARKANSAS

OMNI FARMS, INC. | APPELLANT

VS. NO. 80-137

ARKANSAS POWER & LIGHT COMPANY APPELLEE

APPEAL FROM LONOKE CIRCUIT COURT

THE HONORABLE CECIL TEDDER, JUDGE

PETITION FOR REHEARING

Filed Nov. 21, 1980

Dona L. Williams, Clerk

Appellant, for its Petition for Rehearing, states:

1. That the Court erred in finding that the Public

Service Commission was not the exclusive forum in which

Appellant could contest necessity for the AP&L

transmission line and the lines’ ultimate location on

Appellant's land.

2. That the Court erred in finding that Ark. Stat.

Ann. Section 73-276.15 (repl. 1979), while imposing a

mandatory duty on a utility company to negotiate, does not

make negotiation a jurisdictional prerequisite as well.

3. That Appellee’s failure to give actual notice of

the Public Service Commission hearing and Appellee’s

further failure to negotiate, require that this case be

dismissed. .

BRIEF

The power given to the Public Service Commission

in Ark. Stat. Ann. Section 73-276 through 276.18 includes

but is not limited to protecting the environment and

economic protection. The certificate of the Commission for

the location of a major utility facility is issued only after the

Commission finds and determines that there is a need and

the facility will serve the public interest, convenience, and

necessity. Section 73-276.8. Furthermore, no other Court of

this state has jurisdiction to hear the issues of location of

the line or necessity. Section 73-276.11. Therefore, one must

participate in the Public Service Commission proceeding in

order to be heard at all. In the case at hand, a very valuable

property right will be divested because the property owner

was never given actual notice as required by Section 73-

276.4 and by accepted concepts of due process, Mullane v.

Central Hanover Bank & Trust Company, 339 U.S. 306

(1950).

The Court has found at page 4 of its opinion that Ark.

Stat. Ann. Section 73-276.15 imposes a mandatory duty on

any utility company to negotiate. Using the reverse

argument of that used by the Court, a Court could find that

a utility did not negotiate as required by statute and the

landowner would essentially be without a remedy. In

addition, the utility would know this and only make

unilateral offers and then file a condemnation action, as

found here. In fact, the Public Service Commission order in

this case requires the Appellee to negotiate with the

landowner and move the line as situations require, but

Appellee flatly states that it will not move “one inch” from

the route as presently laid out.

That based on these points and arguments Appellant

respectfully prays that this Court rehear this case ind

reverse its former decision.

Respectfully Submitted,

THURMAN & CAPPS, LTD.

#2504 McCain Place, Suite 201

North Little Rock, Arkansas 72116

(501) 758-1254

Attorneys for Appellant

CERTIFICATE OF COUNSEL

I, Rita W. Gruber, of Thurman & Capps, Ltd.,

attorney for Appellant, believe that there is merit in this

petition and it is not filed for the purpose of delay.

THURMAN & CAPPS, LTD.

BY: /s/ Rita W. Gruber

RITA W. GRUBER

I certify that a copy of the foregoing was furnished

opposing counsel of record by mailing same to the usual

business address of said counsel on 11-20, 1980.

/s/ Rita W. Gruber

TO: ROBERT ROBINSON

Attorney at Law

1550 Tower Building

Little Rock, Arkansas 72201

OFFICE OF THE CLERK

SUPREME COURT OF THE STATE OF ARKANSAS

ARKANSAS COURT OF APPEALS

LITTLE ROCK

DECEMBER 8, 1980

Rita W. Gruber

Attorney at Law

2504 McCain Place, Suite 201

North Little Rock, AR 72216

Re: 80-137 Omni Farms, Inc. v. Arkansas Power &

Light Company

Dear Ms. Gruber:

The Court made the following order in the above

styled case today:

“Petition for Rehearing denied.”

Sincerely yours,

/s/ Dona L. Williams

Dona L. Williams

Clerk

DLW:rh

ce: Robert Robinson

Attorney at Law

1550 Tower Building

Little Rock, AR 72201

73-276. Utility facility environmental protection — Short

title. — This Act [§§ 73-276 — 73-276.18] shall be known, and

may be cited as, the “Utility Facility Environmental and

Economic Protection Act.” [Acts 1973, No. 164, §1, p. 564;

1977, No. 866, § 1, p. 2160.]

73-276.1. Policy. — The Legislature hereby finds and

declares that there is at present and will continue to be a

growing need for electric and gas public utility services

which will require the construction of major new facilities.

It is recognized that such facilities cannot be built without

in some way affecting the physical environment where such

facilities are located and without the expenditure of

massive amounts of capital. The Legislature further finds

that it is essential in the public interest to minimize any

adverse effect upon the environment and upon the quality

of life of the people of the State which such new facilities

might cause and to minimize the economic costs to the

people of the State of obtaining reliable, clean, safe, and

adequate energy supplies. The Legislature further finds

that present laws and practices relating to the location,

financing, construction, and operation of such utility

facilities should be strengthened to protect environmental

values, to encourage the development of alternative

renewable and non-renewable energy technologies which

are energy-efficient, and to take into account the total cost

of society of such facilities. Present laws and practices may

result in undue costly delays in new construction, may

encourage the development of energy technologies which

are relatively inefficient, and may increase costs, eventually

borne by the people of the State in the form of higher utility

rates. These existing laws and practices threaten the ability

of utilities to meet the needs of the people of the State for

economic [economical] and_ reliable utility service.

Furthermore, the Legislature finds that there should be

provided an adequate opportunity for individuals, groups

interested in energy and resource conservation and the

protection of the environment, State and regional agencies,

local governments, and other public bodies to participate in

timely fashion in decisions regarding the location, financing,

construction, and operation of major facilities. The

Legislature, therefore, hereby declares that it shall be the

purpose of this Act [§§73-276 — 73-276.18] to provide a

forum with exclusive and final jurisdiction, except as

provided in Section 19 [§ 73-276.18] of this Act, for the

expeditious resolution of all matters concerning the

location, financing, construction, and operation of electric

generating plants and electric and gas transmission lines

and associated facilities in a single proceeding to which

access will be open to individuals, groups, State and

regional agencies, local governments and other public

bodies to enable them to participate in these decisions.

These matters presently under the jurisdiction of multiple

State, regional and local agencies, are hereby declared to be

of State-wide interest. [Acts 1973, No. 164, § 2, p. 564; 1977,

No. 866, § 2, p. ___-]

73-276.2. Definitions. — The following words, when

used in this Act [§§ 73-276 — 73-276.18], shall have the

following meanings, unless otherwise clearly apparent from

the context:

(a) The word “Commission” shall mean the Public

Service Commission of this State.

(b) The words “major utility facility” shall mean (1)

electric generating plant and associated transportation and

storage facilities for fuel and other facilities designed for, or

capable of, operation at a capacity of fifty (50) megawatts or

more; (2) for the sole purpose of requiring an environmental

impact statement hereunder, an electric transmission line

and associated facilities, including substations, of a design

voltage of one hundred (100) kilovolts or more, extending a

distance of more than ten (10) miles, or of one hundred

seventy (170) kilovolts or more, extending a distance of

more than one (1) mile; and (3) for the sole purpose of

requiring an environmental impact statement hereunder, a

gas transmission line and associated facilities designed for,

or capable of, transporting gas at pressures in excess of one

hundred twenty-five (125) pounds per square _ inch,

extending a distance of more than one (1) mile, excepting,

however, those gas pipelines devoted solely to the

gathering of gas from gas wells constructed within the

limits of any gas field as defined by the Arkansas Oil and

Gas Commission.

(¢) The words “commence to construct” shall mean

any clearing of land, excavation, or other action that would

adversely affect the natural environment of the site or

route of a major utility facility, but does not include changes

needed for temporary use of sites or routes for non-utility

purposes, or uses in securing survey or geological data,

including necessary borings to ascertain foundation

conditions.

(d) The word “municipality” shall mean any county

or municipality within this State.

(e) The word “person” shall include any individual,

group, firm, partnership, corporation, cooperative

association(s), municipality, government subdivision,

government agency, local government or _ other

organization.

(f) The words “renewable energy technology” shall

mean any technology or source of energy, such as solar,

wind, biomass conversion, or geothermal, which is not

depletable.

(g) The words “non-renewable energy technology”

or “non-renewable energy svurces’” shall mean any

technology or source of energy which depends upon the use

of depletable fossil fuels such as oil, gas, and coal.

(h) The words “energy-efficient” shall mean

economical in the use of energy.

(i) The words “public utility” or “utility” shall mean

any person engaged in the production, storage, distribution,

sale, delivery or furnishing of electricity or gas, or both, to

or for the public, as defined in Sections 1(d) (1) and 1(d) (3) of

Act 324 of 1935 [subsections (d) (1) and (d) (3) of § 73-201], as

amended.

(j) The word “applicant” shall mean the utility or

other person making application to the Commission for a

certificate of environmental compatibility and public need.

[Acts 1973, No. 164, § 3, p. 564; 1977, No. 866, § 3, p. 2160.]

73-276.3. Certificate of environmental compatibility

and public need. — (a) No person shall hereafter commence

to construct a major utility facility in the State, except

those exempted as provided in Sections 4(d), 4(e) or 4(f)

[subsections (d) through (f) of this section], without first

having obtained a certificate of environmental compatibility

and public need (hereafter in this Act [§§ 73-276 — 73-276.i8]

called a “certificate”) issued with respect to such facility by

the Commission. The replacement or expansion of an

existing transmission facility with a similar facility, in

substantially the same location, or the _ rebuilding,

upgrading, modernizing or reconstruction for the purposes

of increasing capacity [shall not constitute construction of a

major utility facility], provided, no increase in width of

right-of-way is required. Any facility, with respect to which

a certificate is required, shall thereafter be located,

financed, constructed, operated, and maintained in

conformity with such certificate and any terms, conditions

and modification[s] contained therein. A certificate may

only be issued pursuant to this Act.

(b) A certificate may be transferred subject to the

approval of the Commission, to a person who agrees to

comply with the terms, conditions and modifications

contained therein, and shall be transferable by operation of

law to any receiver, trustee or other similar assignee under

a mortgage, deed of trust or similar instrument.

issued hereunder may be amended as herein provided, or in

accordance with such simplified procedures as_ the

Commission may establish by reasonable rules and

regulations.

(d) This Act shall not apply to any major utility

facility:

(1) for which prior to the effective date [July 5,

1977] of this Act, an application for the approval of same has

been made to any Federal, State, regional or local

governmental agency, which possesses the jurisdiction to

consider the matters prescribed for finding and

determination in Subsection (a) of Section 9 [§ 73-276.8] of

this Act; (2) for which, prior to the effective date of this Act,

the Commission has issued a certificate of convenience and

necessity or otherwise approved the construction of same;

or (3) over which an agency of the Federal Government has

exclusive jurisdiction.

(e) Nothing in this Act shall be construed to require

a certificate hereunder or an amendment thereof for

reconstruction, alteration or relocation of any major utility

facility which must be reconstructed, altered or relocated

because of the requirements of any Federal, State, or

county governmental body or agency for highway

transportation purposes, public safety, or air and water

quality.

({) The Commission shall have, and is hereby

granted, after reasonable notice and hearing, the power and

authority to make, and amend from time to time, reasonable

rules and regulations establishing exemptions from seme or

all of the requirements of this Act for the construction,

reconstruction or expansion of any major utility facility

which is unlikely to have major adverse environmental or

economic impact by reason of length, size, location, available

space or right-of-way on or adjacent to existing utility

facilities and similar reasons.

(g) Any person intending to construct any utility

facility excluded or exempted from this Act may elect to

waive such exclusion or exemption by delivering notice of

such waiver to the Commission. This Act [§§ 73-276 — 73-

276.18] shall thereafter apply to each such major utility

facility identified in such notice from the date of its receipt

by the Commission. [Acts 1973, No. 164, § 4, p. 564; 1977, No.

866, § 4, p. 2160.]

73-276.4. Application for certificate. — (a) An

applicant for a certificate shall file with the Commission a

verified application in such form as the Commission may

prescribe and containing the following information: (1) a

general description of the location and type of the major

utility facility proposed to be built; (2) a general description

of any reasonable alternate location or locations considered

for the proposed facility; (3) a statement of the need and

reasons for construction of the facility; (4) a statement of the

estimated costs of the facility and the proposed method of

financing the construction of the facility; (5) a general

description of any reasonable alternate method(s) of

financing the construction of the facility; (6) a description of

the comparative merits and detriments of each alternate

financing method considered. If, at the time of filing of the

application, the federal income tax laws and the State laws

would permit the issuance of tax-exempt bonds to finance

the construction of the proposed facility for the applicant by

a State financing agency, the application shall also include a

discussion of the merits and detriments of financing the

facility with such bonds: (7) an analysis of the projected

economic or financial impact on the applicant and the local

community where the facility is to be located as a result of

the construction and the operation of the proposed facility;

(8) an analysis of the estimated effects on energy costs to

the consumer as a result of the construction and operation

of the proposed facility; (9) an exhibit containing an

Environmental Impact Statement, which shall fully develop

the four [4] factors listed hereafter, treating in reasonable

detail such considerations, if applicable, as the proposed

facility’s direct and indirect effect on the ecology of the

land, air and water environment, established park and

recreational areas, and on any sites of natural, historic and

scenic values and resources of the area in which the facility

is to be located, and any other relevant environmental

effects. The Environmental Impact Statement shall set out:

(1) the environmental impact of the proposed action; (ii) any

adverse environmental effects which cannot be avoided; (iii)

a description of the comparative merits and detriments of

each alternate location or for generating plants, the energy

production process considered, and a statement of the

reasons why the proposed location and production process

were selected for the facility; (iv) any irreversible and

irretrievable commitments of resources which would be

involved in the proposed action should it be implemented;

(10); such other information of an environmental or

economic nature as the applicant may consider relevant or

as the Commission may by regulation or order require; (11)

promptly after filing, the staff of the Commission shall

invite comments from all State agencies entitled to service

under Subsection (b) of this Seciion as to the adequacy of

applicant’s statements. The invitation to comment shall

advise said State agencies that comments must be received

within sixty (60) days of the date of mailing or delivery

thereof, unless an agency request [requests] for cause a

longer period for consideration. Upon review of said

comments, if any, if the staff shall determine that the

applicant failed to include or adequately develop any

environmental or economic aspect of the facility, it shall

issue a deficiency letter pointing out in detail all such

specific deficiencies in the statement(s). Such deficiency

letter shall be prepared and served upon applicant as

promptly as possible and in no event later than twenty (20)

days before the date set for the public hearing. Applicant

shall promptly respond to any deficiency letter and the

public hearing shall be deferred unless applicant has

responded prior thereto to any deficiency letter.

(b) Each application shall be accompanied by proof

of service of a copy of such application on the Mayor of each

municipality, the County Judge, the Chairman of the

County Planning Board, if any, and on any head of a

government agency charged with the duty of protecting the

environment or of planning land use upon which the

Commission has by regulation or order directed service be

made, in the area in which any portion of such facility is to

be located, both as primarily and as alternatively proposed,

on each member of the legislature in whose district the

facility or any alternative location listed in the application is

to be located, on the Office of the Governor, and upon the

director or other administrative head of the following State

agencies or departments: (1) Department of Pollution

Control and Ecology; (2) Department of Health; (3)

Department of Local Services; (4) Department of Industrial

Development; (5) Department of Commerce; (6) Arkansas

Highway Department; (7) Arkansas Game and Fish

Commission; (8) Arkansas Environmental Preservation

Commission; (9) Any State agency which may have

authority to assist in financing the applicant's facility; (10)

Any other State agency or department which manages or

has jurisdiction over State owned lands on which all or part

of the proposed utility facility is to be, or may be located;

(11) Department of Finance and Administration; (12) State

Energy Conservation and Policy Office; (13) Attorney

General; (14) Any other State agency or department

designated by Commission regulation or order. The copy of

such application shall be accompanied by a notice specifying

the date on or about which the application is to be filed, and

a notice that interventions or limited appearances must be

filed with the Commission within thirty (30) days after the

date set forth as the date of filing, unless good cause is

shown pursuant to Section 7(c) [§ 73-276.6 (c)] of this Act.

proof that public notice thereof was given to persons

residing in municipalities and counties entitled to receive

notice under Subsection (b) of this Section, by the

publication of a summary of the application, and a statement

of the date on or about which it is to be filed, and a

statement that intervention or limited appearances must be

filed with the Commission within thirty (30) days after the

date set forth in said notice, unless good cause is shown

pursuant to Section 7(c) [§ 73-276.6(c)] of this Act, in a

newspaper or newspapers having substantial circulation in

such municipality, municipalities, or county or counties. For

purposes of this Subsection any environmental impact

statement submitted as an exhibit to the application need

not be summarized, but the published notice shall include a

statement that said impact statements are on file at the

office of the Commission and available for public inspection.

The applicant shall also cause copies of the environmental

impact statement to be furnished to at least one [1] of its

local offices, if any, in the county or counties in which any

portion of such facilities are to be located, both as primarily

or as alternatively proposed, to be there available for public

inspection. The published notice shall contain a statement of

the location of these local offices and the times said impact

statements will be available for public inspection.

(d) Inadvertent failure of service on, or notice to,

any of the municipalities, counties, government agencies or

persons identified in Subsections (b) and (c) of this Section

may be cured pursuant to orders of the Commission

designed to afford such persons adequate notice to enable

their effective participation in the proceedings. In addition,

the Commission may, after filing, require the applicant to

serve notice of the application or copies thereof or both

upon such other persons, and file proof thereof, as the

Commission may deem appropriate.

(e) Where any personal service or notice is required

herein, such service may be made by any officer authorized

by law to serve process, by personal delivery or by certified

mail.

(f) An application for an amendment of a certificate

shall be in such form and contain such information as the

Commission shall prescribe. Notice of such an application

shall be given as set forth in Subsections (b) and (c) of this

Section.

(zg) An initial filing fee of Five Hundred Dollars

($500.00) shall accompany each application. [Acts 1973, No.

164, § 5, p. 564; 1977, No. 866, §5, p. 2160.] Jee

73-276.5. Hearing on application or amendment. — (a)

Upon receipt of an application complying with Section 5 [§

73-276.4], the Commission shall promptly fix a date for the

commencement of a public hearing thereon, not less than

forty (40) nor more than ninety (90) days after such receipt,

and shall conclude the proceeding as expeditiously as

practicable. The testimony presented at such hearing may

be presented in writing or orally, provided that the

Commission may make rules designed to exciude repetitive,

redundant or irrelevant testimony.

(b) On an application for an amendment of a

certificate, the Commission shall hold a hearing in the same

manner as a hearing is held on an application for a

certificate if the Commission affirmatively finds from the

application, within thirty (30) days from the date of filing,

that the proposed change in the facility would result in any

material increase in any environmental or economic impact

of the facility, or that a substantial change will occur in the

location of all or a portion of such facility other than as

provided in the alternates set forth in the original

application. If the Commission does not make such a finding

by order within thirty (30) days after filing of the application

for amendment, said amendment shall become effective and

the certificate shall be deemed to be amended as requested.

Any party which files an application for an amendment of a

certificate shall serve copies thereof on each party to the

original proceedings. [Acts 1973, No. 164, § 6, p. 564, 1977,

No. 866, § 6, p. 2160.]

73-276.6 Parties to certification proceedings. — (a)

The parties to a certification proceeding shall include: (1)

the applicant; (2) each municipality, county and government

agency or department or other person entitled to receive

service of a copy of the application under Subsection (b) of

Section 5 [§ 73-276.4] of this Act, if it has filed with the

Commission a notice of intervention as a party within thirty

(30) days after said service; (3) any person residing in a

municipality or county which is entitled to receive service of

a copy of the application under Subsection (b) of Section 5 [§

73-276.4] of this Act, or any domestic nonprofit corporation,

formed in whole or in part to promote conservation or

natural beauty, to promote energy conservation, to protect

the environment, personal health or other biological values,

to represent commercial and industrial groups, or to

promote the orderly development of the areas in which the

facility is to be located, where such person or organization

has an interest which may be directly affected by the

Commission's action and which interest is not adequately

represented by other parties, if such a person or

corporation has petitioned the Commission for leave to

intervene as a party within thrity [thirty] (30) days after the

date given in the public notice as the date of filing the

application.

(b) Any person may make a limited appearance in

the proceeding by filing a verified statement of position

within thirty (30) days after the date given in the public

notice as the date of filing the application. No person

making a limited appearance shall be a party or shall have

the right to receive further notice, or to cross-examine

witnesses on any issue outside the scope of its statement of

position, and such person making a limited appearance is

subject to being called for cross-examination only on the

subject matter of such statement of position by the

applicant or other party. If such person fails to appear for

cross-examination, if called, such statement of position may

be stricken from the record at the discretion of the

Commission.

grant a petition for leave to intervene as a party or to make

a limited appearance and to participate in subsequent

phases of the proceeding, filed by any person who failed to

file a timely notice of intervention or petition for leave to

intervene, as the case may be, whose interests the

Commission finds are not otherwise adequately

represented by another party, and whose participation will

not delay the proceedings, if such intervention or limited

appearance is filed and served at least ten (10) days in

advance of the date the hearing on the application is

scheduled to commence.

(d) Every notice of intervention and petition to

intervene shall be in writing and shall comply with all

procedural rules of the Commission, and shall contain clear

and concise statements of the nature of the right or interest

of the petitioner or intervenor in the proceeding, the

specific objections of the petitioner or intervenor to the

applicant’s proposal, the grounds and issues of fact and law

upon which petitioner or intervenor wishes to be heard, and

any other reasonable information which may be required by

rule or order of the Commission. [Acts 1973, No. 164, § 7, p.

564; 1977, No. 866, § 7, p. 2160.}

73-276.7. Conduct of hearing. — A record shall be

made of the hearing and of all testimony taken and the

cross-examination thereon. Rules of evidence[,| as specified

by the Commission, shall apply to the proceeding. The

Commission may provide for the consolidation of the

representation of par.ies having similar interests. [Acts

1973, No. 164, § 8, p. 564; 1977, No. 866, § 8, p. __.]

73-276.8. Decision of commission. — (a) The Com-

mission shall render a decision upon the record either

granting or denying the application as filed, or granting it

upon such terms, conditions or modifications of the location,

financing, construction, operation or maintenance of the

major utility facility as the Commission may deem

appropriate. The Commission may not grant a certificate

for the location, financing, construction, operation and

maintenance of a major utility facility, either as proposed or

as modified by the Commission, unless it shall find and

determine (1) the basis of the need for the facility; (2) that

the facility will serve the public interest, convenience and

necessity; (3) the nature of the probable environmental

impact of the facility; (4) that the facility represents an

acceptable adverse environmental impact, considering the

state of available technology, the requirements of the

customers of the applicant for utility service, the nature and

economics of the proposal and the various alternatives, if

any, and other pertinent considerations; (5) the nature of the

probable economic impact of the facility; (6) that the facility

financing method either as proposed or as modified by the

Commission represents an acceptable economic impact,

considering economic conditions and the need for and cost of

additional public utility services; (7) in the case of an electric

transmission line, that such facility is not inconsistent with

known plans of other electric systems serving the State,

which have been filed with the Commission; (8) in the case of

a gas transmission line, that the location of the line will not

pose an undue hazard to persons or property along the area

to be traversed by the line; (9) (and) that the energy

efficiency of the power production facility has been given

significant weight in the decision-making process; and (10)

that the location of the facility as proposed conforms as

closely as practicable to applicable State, regional and local

laws and regulations issued thereunder, except that the

Commission may refuse to apply all or any part of any

regional or local law or regulation if it finds that, as applied

to the proposed facility, such law or regulation is

unreasonably restrictive in view of the existing technology,

or of factors of cost or economics, or of the needs of

consumers whether located inside or outside of the directly

affected government subdivisions.

(b) If the Commission determines that the location

or design of all or a part of the proposed facility should be

modified, it may condition its certificate upon such

modification, provided that the municipalities, counties and

persons residing therein affected by the modification shall

have been given reasonable notice thereof, if such persons,

municipalities or counties have not previously been served

with notice of the application. If the Commission requires, in

the case of a transmission line, that a portion thereof shall

be located underground in one or more areas, the

Commission shall, after giving appropriate notice and an

opportunity to be heard to affected ratepayers, have the

power and authority to authorize the adjustment of rates

and charges to customers within the area or areas where

the underground portion of the transmission line is located

in order to compensate for the additional costs, if any, of

such underground construction.

or part of the proposed facility should be modified, it may

condition its certificate upon such modification. If at the

time of filing of the application or within 60 days thereafter

the federal income tax laws and the State laws would

permit the issuance of tax-exempt bonds to finance the

construction of the proposed facility for the applicant and if

the Commission determines that financing the facility with

such tax-exempt bonds would be in the best interests of the

people of the State, the Commission shall, after giving

appropriate notice and an opportunity to be heard to the

parties, have the power and authority to require by order or

regulation that the facility be financed in such manner as

may be provided elsewhere by law.

(d) A copy of the decision and any order issued

therewith shall be served upon each party within sixty (60)

days after the conclusion of each hearing held under this

Act [§§ 73-276 — 73-276.18].

(e) Any certificate issued hereunder to an applicant

shall be in lieu of, and exempt the applicant from, the

requirements of obtaining a certificate of convenience and

necessity pursuant to Sections 41, 42 or 43 of Act 324 of 1935

[§§ 73-240 — 73-242], as amended, and shall also entitle such

applicant to a permit under Act 188 of 1961 [§§ 73-2201 — 73-

2216] without any further notice or hearing, provided said

applicant shall have filed with the Commission the consent

or authorization required by Subsection (7) of Section (3) [§

73-2203] of said Act, and paid the damages set out in said

Act. [Acts 1973, No. 164, § 9, p. 564; 1977, No. 866, § 9, p.

2160.]

73-276.9 Findings of fact required. — In rendering a

decision on the application for a certificate, the Commission

shall issue and serve upon all parties an order which shall

include or be accompanied by, findings of fact stating its

reasons for the action taken. If the Commission has found

that any regional or local law or regulation, which would be

otherwise applicable, is unreasonably restrictive pursuant

to Paragraph (10) of Subsection (a) of Section 9 [§ 73-276.8(a) (10)]

of this Act, it shall state in its order the reasons therefor.

[Acts 1973, No. 164, § 10, p. 564; 1977, No. 866, § 10, p. 2160.]

73-276.10 Rehearing — Judicial review. — Any

party aggrieved by any decision issued on an application for

a certificate may apply for a rehearing as provided in Act

231 of 1973 [§§ 73-229 — 73-229.3] as amended. Any party

aggrieved by the final decision of the Commission on

rehearing may obtain judicial review thereof in accordance

with the provisions of Act 231 of 1973 [§§ 73-229 — 73-229.3],

as amended. [Acts. 1973, No. 164, § 11, p. 564; 1977, No. 866,

§ 11, p. 2160.]

73-276.11 Jurisdiction of courts. — Except as

expressly set forth in Section 11 [§ 73-276.10] and Section 19

[§ 73-276.18] of this Act, no court of this State shall have

jurisdiction to hear or determine any issue, case or

controversy concerning any matter which was or could have

been determined in a proceeding before the Commission

under this Act (§§ 73-276 — 73-276.18] or to stop or delay the

financing, construction, operation or maintenance of a major

utility facility except to enforce compliance with this Act or

the provisions of a certificate issued hereunder. [Acts 1973,

No. 164, § 12, p. 564; 1977, No. 866, § 12, p. 2160.]

73-276.12. Powers of local governments and state

agencies. — Notwithstanding any other provision of law, no

State department or agency, except the Department of

Pollution Control and Ecology as set out in Section 19 [§ 73-

276.18] of this Act, or municipality or other local

government unit may require any approval, consent,

permit, certificate or other condition for the construction,

operation or maintenance of a major utility facility

authorized by a certificate issued pursuant to the provisions

of this Act [§§ 73-276 — 73-276.18]; except that nothing

herein shall prevent the application of State laws for the

protection of employees engaged in the construction,

operation or maintenance of such facility. [Acts. 1973, No.

164, § 13, p. 564; 1977, No. 866, § 13, p. 2160.]

73-276.13. Joint hearings and orders. — The Com-

Commission in the discharge of its duties under this Act [§§ 73-

276 — 73-276.18] or any other Act, is authorized to make joint

investigations, hold joint hearings within or without the

State, and issue joint or concurrent orders in conjunction or

concurrence with any official or agency of any other State

or of the United States, whether in the holding of such

investigations or hearings, or in the making of such orders,

the Commission shall function under agreements or

compacts between States or under the concurrent power of

States to regulate interstate commerce, or as an agency of

the United States, or otherwise. The Commission, in the

discharge of its duties under this Act, is further authorized

to negotiate and enter into agreements or compacts with

agencies of other States, pursuant to any consent of

Congress, for cooperative efforts in certification,

construction, financing, operation and maintenance of major

utility facilities in accord with the purposes of this Act and

for the enforcement of the respective State laws regarding

same. The Arkansas Public Service Commission is hereby

deemed to be the agency of the State of Arkansas that shall

be the member of any regional hearing authority or

Commission created by the terms of any compact between

Arkansas and other States or between Arkansas and the

United States of America otherwise concerning the

implementation of this Act, except as may be provided by

Section 19 [§ 73-276.18] herein. It is the intent of the

Legislature to conter upon the Commission under this Act

broad rule making authority adequate to enable it to comply

with any requirements, imposed by State or federal

legislation dealing with the subject matter of this Act, upon

state administered certification programs; and to enable it

to comply with any State or federal requirements for

facilitating the issuance of tax-exempt bonds, should such

issuance be authorized. [Acts 1973, No. 164, § 14, p. 564;

1977, No. 866, § 14, p.__.]

73-276.14. Forecasts of loading and resources. — Each

public utility shall annually furnish a report to the

Commission for its review containing a forecast of loads and

resources and describing the major utility facilities which,

in the judgment of such utility, will be required to supply

system demands during the forecast period. The forecast

shall cover a period of at least two (2) calendar years, next

succeeding the date of such report, and such additional

longer range forecast reports as the Commission may find

necessary and may require by rule or regulation from time

to time. All such reports shall be available to public *

inspection, and a copy of any report shall be furnished by

the Commission to any municipality, county, or government

agency charged with the duty of protecting the

environment or of planning land use which requests a copy

of such a report in writing. The report shall be in such form

and shall contain such information as may be reasonably

prescribed by the Commission by rule or regulation. The

Commission, pursuant to this section, may also require each

public utility to furnish, from time to time, reports

concerning actions taken by the utility to encourage the

conservation of energy by its customers. [Acts 1973, No.

164, § 15, p. 564; 1977, No. 866, § 15, p. 2160.]

- 73-276.15. Eminent domain. — (a) Whenever a

certificate has been issued to an applicant for the

construction of any major utility facility under the

provisions of this Act [§§ 73-276 — 73-276.18] and such

applicant is unable to reach agreement with the owner of

land (hereafter in this section the word “land” shall include

any estate or interest therein) to construct, operate,

maintain and obtain reasonable access to the major utility

facility in accordance with the certificate, it may acquire the

same by the exercise of a power of eminent domain in a

State court of competent jurisdiction in the judicial district

in which such land is located. In the event the property

sought to be condemned is owned by one [1] person and is

situated in more than one [1] county, the petition may be

filed in the court of any county where a part of the property

may be located. The petition shall contain or have annexed

thereto: (1) a statement of the authority under which and

the use for which such land is taken; (2) a description of the

land taken sufficient for the identification thereof; (3) a

statement of the estate or interest in the land taken for such

use; (4) a statement that a certificate has been issued to

petitioner; (5) a statement of the sum of money estimated by

such utility to be just compensation for the land taken.

(b) After the filing of such petition and upon the

deposit in court of a sum determined by the Court to be

sufficient to secure compensation to the owner or owners of

the property or interest therein sought to be condemned,

the Court shall immediately enter an order finding title to

such land in fee simple absolute, or such less estate or

interest therein as is prayed in such petition, to be vested in

such applicant, and such land, or interest therein, shall be

deemed to be condemned and taken for the use of the

applicant, and the right to just compensation for the same

fee or for such lesser interest as may be taken shall vest in

the person or persons entitled thereto; provided, however,

that any taking of lands in fee simple absolute under the

authority granted herein shall be limited to taking for

electric generating plant sites and substation sites, and

compressor station sites, and meter station sites only, and

nothing herein shall be construed as authorizing a utility to

take fee simple title to lands for gas or electric transmission

line or distribution line rights-of-way purposes.

jury pursuant to Section 35-310 Ark. Statutes 1947

Annotated.

(d) Upon the filing of a petition, the court shall have

power to fix the time within which and the terms upon

which the party or parties in possession shall be required to

surrender possession to such applicant. The court shall have

power to make such orders in respect of encumbrances,

liens, rents, taxes, assessments, insurance and other

charges, if any, as shall be just and equitable.

(e) No appeal in such proceeding or any bond or

undertaking given therein shall operate to prevent or delay

the vesting of title to such land in such applicant.

(f) The right to exercise the power of eminent

domain and to take possession and title in advance of final

judgment in such proceeding and all powers delegated in

this Section shall be in addition to any right, power or

authority conferred by any other laws of the State of

franchises, contracts, or agreements and shall not be

construed as abrogating, limiting or modifying any such

right, power, authority, franchise, contract or agreement.

[Acts 1973, No. 164, § 16, p. 564; 1977, No. 866, § 16, p. 2160.]

73-276.16. Cooperation of state agencies—Employees

of commission. — All State agencies and departments entitled

to service under Section 5(b) [§ 73-276.4(b)] are directed to

cooperate with and render assistance to the Commission in

discharging its responsibilities under this Act [§§ 73-276 — 73-

276.18]. The Commission is empowered to employ additional

consultants to assist it as it deems necessary to an adequate

appraisal of the application. [Acts 1973, No. 164, § 17, p. 564;

1977, No. 866, § 17, p. 2160.]

73-276.17. Limitation on commissions power. —

Nothing in this Act [§§ 73-276 — 73-276.18] shall be deemed to

confer upon the Commission power or jurisdiction to regulate

or supervise the rates, service or securities of any person not

otherwise subject to the Commission's jurisdiction. [Acts 1973,

No. 164, § 18, p. 564; 1977, No. 866, § 18, p. 2160.]

73-276.18. Effect on department of pollution control

and ecology. — Nothing herein contained shall affect the

jurisdiction of the Department of Pollution Control and

Ecology with respect to water and/or air pollution control or

other matters within its jurisdiction or the requirement that.a

person apply for and obtain a permit from said Department as

provided by the Arkansas Water and Air Pollution Control

Act [§§ 82-1901 — 82-1909, 82-1931 — 82-1943], as amended

(Ark. Stats. Ann. Section 84-1901 et seq.); nor shall anything

herein contained confer upon the Public Service Commission

any authority or jurisdiction conferred by law upon the

Department of Pollution Control and Ecology or be deemed to

amend said Arkansas Water and Air Pollution Control Act.

[Acts 1973, No. 164, § 19, p. 564; 1977, No. 866, § 19, p. ___.]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.