# Petition for Writ of Certiorari — Black Hills Power & Light Co. v. Weinberger > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2217%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 818 ## Text Inu The Supreme Court of the Unjty @ctober Term, 1986 Le i BLACK HILLS POWER AND LIGHT COMPANY, a South Dakota corporation, and SOUTH DAKOTA PUBLIC UTILITIES COMMISSION and the STATE OF SOUTH DAKOTA, Petitioners vs. CASPAR W. WEINBERGER, et al., Respondents On Writ of Certiorari to the United States Court of Appeals For the Eighth Circuit PETITION FOR WRIT OF CERTIORARI RoGER A. TELLINGHUISEN Attorney General of the State of South Dakota Mary VANDERPAN (attorney of record) General Counsel for South Dakota Public Utilities Commission 500 East Capitol Pierre, South Dakota 57501 Attorneys for Petitioner Public Utilities Commission and State of South Dakota (605) 773-3202 Davip E. Morri.u (attorney of record) MorriL_ & BROWN P. O. Box 8108 Rapid City, South Dakota 57709-8108 Attorney for Petitioner Black Hills Power and Light Company (605) 348-7516 Pandick Technologies, Inc., Chicago @ (312) 236-0200 i QUESTION PRESENTED FOR REVIEW Is state authorized regulation of electric utility service to Department of Defense facilities both on and off federal enclaves by state public utility regulatory commissions in conflict with federal law and regulations, including the Federal Power Act, the Public Utilities Regulatory Policies Act, regulations in force since 1974 requiring armed ser- vices procurement officers to comply with state regula- tion and a 1986 Congressional Act which prohibits the use of federal funds to implement or enforce new rules which would have required federal agencies to ignore state regulation? PARTIES TO THE PROCEEDING 1. Black Hills Power and Light Company, Petitioner (Black Hills); 2. South Dakota Public Utilities Commission and the State of South Dakota, Petitioner (PUC); 3. Caspar W. Weinberger as Secretary of the Department of Defense, Respondent; 4. The Department of Defense, an agency of the United States of America, Respondent; 5. Richard D. Rasmussen as Contracting Officer for Ellsworth Air Force Base, Respondent; 6. Heartland Consumers Power District, a subdivision of the State of South Dakota, Respondent (Heartland); and 7. West River Electric Association, Inc., a South Dakota rural electric cooperative, Respondent (WREA). ii TABLE OF CONTENTS Page QUESTION PRESENTED FOR REVIEW ...... i PARTIES TO THE PROCEEDING ........... i TABLE OF AUTHORITIES ................ iii OFFICIAL AND UNOFFICIAL REPORTS OF EEE « 6.4:040 0400 Shenae eee 1 JURISDICTIONAL GROUNDS.............. 2 CITATIONS TO PERTINENT AUTHORITY .... 2 STATEMENT OF THE CASE AND FACTS..... 4 ARGUMENT FOR ALLOWANCE OF WRIT .... 7 I. This is an important question of federal law which should be settled by this Court ..... 7 Il. Conflict with previous opinions ......... 11 A. Conflict with other Court opinion regard- ing procurement regulations ........ 11 B. Conflict with previous federal enclave PTT eer ee ee 17 lil TABLE OF AUTHORITIES Constitution and Statutes: United States Constitution PST Te Pee ee eee eee 3 United States Code Se re ere ee ae ee 7 ag hb 5 6 6 46d do 0 866 eo 8 5 ES eae 5 ay kk eh eo koe 8 4 oa 6 6 08 8 8 5 he a ak a es 4 60s e's oe 2 I ee ee 3,17 Public Law 99-591 § 620, 100 Stat. 3341-333..... 2,8 Public Law 99-591 § 9111, 100 Stat. 3341-120 ... 3,8 Public Utilities Regulatory Policies Act of 1978 .. 7 Code of Federal Regulations Armed Services Procurement Regulations Sup- plement No. 5, incorporated at 48 ES i sg eno 6 6 9 0 8 6 4 0.9 0 3, 12, Federal Register 51 Fed. Reg. 16988-16991 (May 7,1986).... 2,8 Other Federal Law and Regulations Air Force FAR Supplement § 8.304-91: 8.304- See 2, 7-8, H.R. Report No. 99-723, § 620 at 80, 99th Ee 9,10 iv Cases: Page Adams v. United States, 219 U.S. 312 (1943) .... 17 Andrus v. Shell Oil Company, 446 U.S. 657 ere re rn 1 ee a 10 Arkansas Power and Light Company v. Arkansas Public Service Commission, 330 S.W. 2d 51, cert denied 362 U.S. 975 (1960) ........... 13 Black Hills Power and Light Company v. Caspar W. Weinberger, et al., 808 F.2d 665 Se ls EY 3 Ws oN ek ees ee os ee 2 Hicks v. Miranda, 422 U.S. 332 (197F)......... 13 Mandel v. Bradley, 432 U.S. 173 (1977) ........ 13 Paul v. United States, 371 U.S. 245 (1963)...... 18 Re Souris River Telephone Mutual Aid Corporation, 24 P.U.R. 3d 84 (1958) ........ 13 United States v. State Corporation Commission of Virginia., 345 F. Supp. 843 (1972), aff’d mem. 409 U.S. 1094 (1973) .............. 11, 12, United States v. State Corporation Commission of Virginia, Jurisdictional Statement, In the Supreme Court of the United States, Se Te 6 6 oe oc deka ek ee caw 13, 15 United States v. State Corporation Commission of Virginia, Motion to Dismiss or Affirm, In the Supreme Court of the United States, Se CU ree eT eT eT eee eee 16,17 _————— No. Iu The Supreme Court of the United States @®ctober Term, 1986 BLACK HILLS POWER AND LIGHT COMPANY, a South Dakota corporation, and SOUTH DAKOTA PUBLIC UTILITIES COMMISSION and the STATE OF SOUTH DAKOTA, Petitioners v8. CASPAR W. WEINBERGER, et al., Respondents On Writ of Certiorari to the United States Court of Appeals For the Eighth Circuit PETITION FOR WRIT OF CERTIORARI OFFICIAL AND UNOFFICIAL REPORTS OF OPINIONS Three tribunals have rendered opinions in this matter, the South Dakota Public Utilities Commission, the United States District Court for the District of South Dakota, Western Division and the United States Court of Appeals for the Eighth Circuit. Neither the Public Utilities Commission opinion nor the United States District Court opinion were reported. Both opinions are set forth ver- batim in the Appendix. The United States Court of 2 Appeals for the Eighth Circuit opinion is reported at 808 F.2d 665 (8th Cir 1987). JURISDICTIONAL GROUNDS The judgment of the Eighth Circuit sought to be reviewed in this matter is dated January 7, 1987 and is filed on February 20, 1987. Black Hills and the PUC peti- tioned for rehearing and suggested hearing in banc, both of which were denied by the Eighth Circuit on February 4, 1987. Jurisdiction in this Court to review the judgment of the United States Court of Appeals for the Eighth Circuit is conferred on this Court by 28 U.S.C. 2101(c). CITATIONS TO PERTINENT AUTHORITY Following is a list of citations to pertinent authority, the text of some of the authority being set out verbatim in the Appendix pursuant to Supreme Court Rule 21.1(f) because of the lengthy nature of the provisions: 1. Air Force FAR Supplement 8.304-91: 8.304-91 Competition. The contracting officer shall determine by market survey if more than one supplier can furnish needed public utility services for proposed procurements prior to using other than competitive procedures. The existence of franchised service territories established by state or local governmental entities does not in and of it- self restrict acquisition of public utility services to a sole source. The contracting officer need not enter into a con- tract with the state or locally franchised public utility sup- plier simply because the supplier has obtained the local franchise. The contracting officer should instead seek to competitively acquire public utility services whenever pos- sible. 2. 51 Fed. Reg. 16988-16991 (May 7, 1986) (reprinted in Appendix) 3. P.L. 99-591 § 620, 100 Stat. 3341-333, (99th Cong. Oct. 30, 1986): Sec. 620. None of the funds appropriated 3 or made available by this Act shall be used to imple- ment or enforce the rule proposed on May 7, 1986 (51 Federal Register 16988-16991), or any other regulation issued pursuant to statute requiring competitive bidding for electricity, gas, or steam utility services acquired by the Federal Government. 4. P.L. 99-591 §9111, 100 Stat. 3341-120 (99th Cong. Oct. 30, 1986): Sec. 9111. None of the funds ap- propriated or made available by this Act shall be used to implement or enforce the rule proposed on May 7, 1986 (51 Fed. Reg. 16988-16991), or section 8.304-91 of the Air Force FAR Supplement issued on June 24, 1985. 5. Arms Services Procurement Regulation Supplement No. 5, dated as of October 1, 1974, incorporated at 48 C.F.R. § 208.3 (selected portions reprinted in Appendix) 6. U.S. Const. Art. 1, § 8, Cl. 17: To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of par- ticular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings. 7. 40 U.S.C.S. § 255, 6th unnumbered paragraph (1978 Supp.): Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or inde- pendent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or in- terests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such juris- diction, exclusive or partial, not theretofore obtained, over 4 any such lands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has ac- cepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted. STATEMENT OF THE CASE AND FACTS Statement of the Case This action originated when Black Hills filed a com- plaint against Heartland with the South Dakota PUC ask- ing that the PUC enjoin Heartland from performing a one year contract entered into with Ellsworth Air Force Base (EAFB), a military installation of the Air Force and Department of Defense, to provide overrun electric power. Black Hills complained that Heartland did not have authority to serve at retail outside of its bound- aries and that Black Hills was entitled to serve EAFB un- der the state regulatory law granting franchised areas for retail service. The PUC conducted a three day evidentiary hearing in which the United States through EAFB par- ticipated. The PUC entered a decision and order, which is reproduced in the Appendix, and found that electric ser- vice to EAFB was service at retail and Heartland did not have authority to serve EAFB. The PUC also ruled that under applicable state law and the federal procurement regulations governing utility acquisition, Supplement No. 5, which is reproduced in the Appendix, Black Hills was entitled to be the sole supplier of electric service to EAFB other than that furnished by the United States. EAFB refused to comply with the PUC order. Black Hills then brought an action in the United States District Court for the District of South Dakota, Western Division, Civ. No. 5031, to force EAFB and the applicable government 5 officers to comply with the PUC order. While this action was pending, Heartland, WREA and the United States ap- pealed from the PUC decision to the Sixth and Fourth Judicial Circuit Courts of South Dakota. The United States petitioned to remove those appeals to the United States District Court in Civ. Nos. 85-4068 and 85-3015. The United States also commenced a United States District Court action against the PUC seeking an injunction in Civ. No. 85-5064. All the foregoing cases were consolidated with Black Hills’ action, Civ. No. 5031. The District Court in Civ. No. 5931 denied Black Hills’ motion for summary judgment in the consolidated action, granted the United States’ motion to dismiss, dismissed as moot the two ap- peals of the PUC decision and dismissed as redundant the action brought by the United States seeking an injunction against the PUC. Appeal was then taken to the United States Court of Appeals for the Eighth Circuit. The PUC as a named defendant in the original action cross appealed but filed briefs in support of Black Hills’ position. The Eighth Circuit’s opinion of January 7, 1987 affirmed the District Court judgment. Judgment of the Eighth Circuit was filed February 20, 1987. Black Hills’ and the PUC’s petition for rehearing and in banc was denied on February 4, 1987. Jurisdiction in the District Court action brought by Black Hills in Civ. No. 5031 was invoked on the grounds that the relief sought by Black Hills was in the nature of mandamus against a federal officer or agency as provided at 28 U.S.C. § 1361 and that there existed a question which arose under federal statutes and regulations giving the Court jurisdiction under 28 U.S.C. §1331. The action brought by the United States against the PUC which was consolidated with Black Hills’ action Civ. No. 85-5031 also gave the Court further jurisdiction under 28 U.S.C. § 1345. rr 6 Statement of the Facts In 1984 EAFB, a federal military installation located in Meade and Pennington Counties in South Dakota, re- quested proposals for electric service supplemental to that being received by EAFB from Black Hills and the Western Area Power Administration (WAPA). Black Hills has served, and still does, a portion of EAFB, Renel Heights, for many years, including electric service on March 21, 1975 the date on which the territory comprising EAFB was divided by the PUC as assigned service areas between Black Hills and WREA. Black Hills submitted the only proposal it could legally make based upon rates as ap- proved by the PUC. The one year contract for supplemen- tal power was awarded to Heartland. The contract was renewed for another year and in 1986 Basin Electric, a rural electric generation and transmission cooperative from North Dakota, was awarded a one year contract. Black Hills protested the awarding of the contract to Heartland contending that Heartland was not a qualified bidder because it did not have statutory authority to supply electric service to EAFB; that the sale to EAFB was a sale at retail and Heartland had no power to sell at retail beyond its district; and that Black Hills should be the sole supplier of electric service to EAFB other than government purchased electric power. Black Hills’ protest was denied by EAFB’s contracting officer, the defendant Rasmussen. Black Hills then filed a complaint against Heartland with the PUC. After an evidentiary hearing, the PUC entered a decision and order including findings of fact and conclu- sions of law, finding among other things, that: (1) the sale of electricity to EAFB was a retail sale; (2) Black Hills was the only supplier other than the United States providing electric service to EAFB on March 21, 1975, the date on which South Dakota electric territory law granted electric utilities the right to continue to serve existing customers; and (3) only a portion, approximately 88% , of EAFB is a federal enclave. Those portions of EAFB which are not 7 part of a federal enclave include the Skyway housing area, Capehart housing area, part of the hospital, the security gate and parts of the runway. The PUC also found that Black Hills was able to serve EAFB by three different methods. ARGUMENT FOR ALLOWANCE OF WRIT I. This is an important question of federal law which should be settled by this Court. In this case the Eighth Circuit decided an important question of federal law which has not been but should be settled by this Court. The Eighth Circuit effectively destroyed the long standing state/federal dichotomy in the area of regulation of electricity as evidenced by federal statutes such as the Federal Power Act, 16 U.S.C. § 824 et seq., including the Public Utilities Regulatory Policies Act of 1978 (PURPA). The cases relied upon by the Eighth Circuit involved such things as the regulation of milk sales and truck transportation services, not electric utility ser- vice which is a heavily federal and state regulated area with a long standing natural dichotomy in jurisdiction. The importance of this question and Congressional recognition of the federal/state dichotomy in the regula- tion of electricity is recognized and evidenced by the legislative history in the passage of the new legislation referred to in the Question Presented above, House Joint Resolution 738 (P.L.99-500, resubmitted and signed into law by President Reagan on October 30, 1986 as Public Law 99-591.) Certain sections of Public Law 99-591 were promulgated as a result of proposed federal regulations concerning the acquisition of utility services and a similar Air Force supplemental regulation. After Black Hills had commenced this action complaining to the PUC that EAFB was not purchasing electricity from the state franchised utility as required by applicable law, and a favorable rul- ing by the PUC in favor of Black Hills, the Air Force adopted without notice in the Federal Register section 8 8.304-91 of its regulations, which is reproduced, supra, and the Department of the Defense and other agencies proposed in the May 7, 1986 Federal Register 51 Fed. Reg. 16988- 16991, regulations, which are reproduced in the Appendix, which would direct federal procurement officers not to follow state utility franchise law in determining the ap- plicable suppliers of electric utility services to military in- stallations. As a result of the notice of the proposed regula- tions in the Federal Register and the request for comments thereon, the 99th Congress in the fall of 1986 passed the following two laws as part of the Appropriations Bill, P.L. 99-591, the second one for the Department of Defense: None of the funds appropriated or made available by this Act shall be used to implement or en- force the rule proposed on May 7, 1986 (51 Fed. Reg. 16988-16991), or any other regulation issued pursuant to statute requiring competitive bidding for electricity, gas, or steam utility services ac- quired by the Federal Government. Section 620 of HR 5294 adopted by reference by House Joint Resolution 738, now § 620, Public Law 99-591, 100 Stat. 3341-333 (Oct. 30, 1986). None of the funds appropriated or made available by this Act shall be used to implement or enforce the rule proposed on May 7, 1986 (51 Fed. Reg. 16988-16991), or Section 8.304-91 of the Air Force FAR Supplement issued on June 24, 1985. Section 9108 of HR 5438 adopted by reference by House Joint Resolution 738, now § 9111, Public Law 99- 591, 100 Stat. 3341-120, (Oct. 30, 1986). The legislative history behind the passage of Public Law 99-591 and the sections quoted above demonstrates the importance of this question as follows: The May 7, 1986 proposal raises serious problems as well with respect to the fundamental regulatory scheme which has applied for the last 50 years to the sale and distribution of electricity. Under the Federal Power Act of 1935 (16 U.S.C. § 824 et seq.) and subsequent legislation such as the Public 9 Utility Regulatory Policies Act of 1978, Congress has exerted exclusive jurisdiction over sales of electricity for resale in interstate commerce while at the same time expressly reserving to the states authority to regulate the retail sale and distribu- tion of electricity. H.R. Report No. 99-723, § 620 at 80, 99th Cong., 2d Sess. (1986). The House of Representatives Report further recog- nized that: The autonomy of the states in this area has historically been preserved by federal statute. The proposed rules disregard state authority over retail electric sales by directing federal contract- ing officers to ignore state-created utility service territories when procuring electric service. In ef- fect the rule proposes to dismantle the current, long established regulctory system by permit- ting the Federal Government, the nation’s largest single electricity consumer, to disregard the rules governing all other participants in the heavily- regulated market for retail electric service. H.R. Report No. 99-723, 99th Cong., 2d Sess. § 620 at 80 (1986). The Eighth Circuit’s opinion below allows the federal government to do exactly what Congress was concerned about in the passage of the provisions of Public Law 99-591 quoted above. The opinion concluded that notwithstand- ing the above legislative history and legislation direct- ing that regulations requiring competitive purchasing of electric service not be followed, the Department of Defense can ignore state franchised territory regulation and pur- chase electricity competitively. The Eighth Circuit cor- rectly asserted that the new legislation contained in P.L. 99-591 reaffirmed Supplement No. 5, in force since October 1, 1974, as the applicable law regarding the procurement of electric utility service but determined that the supple- ment did not advance petitioner’s position because of an erroneous conclusion that Supplement No. 5 did not re- quire the federal government to defer to state regulation. 10 That determination is inconsistent with the passage of the new legislation and moreover blatantly ignores and disregards the Congressional intent inherent in the pas- sage of Public Law 99-591. The Eighth Circuit inter- preted Supplement No. 5 as allowing competition in the procurement of utility services just as the May 7, 1986 proposal and Air Force Supplement § 8.304-91 allow com- petition. Congress, however, in passing Public Law 99- 591, prohibited the use of funds in the implementation of the May 7, 1986 proposal or § 8.304-91 of the Air Force Supplement. The only intent that can be ascribed to the passage of Public Law 99-591 is that Congress is inter- preting the federal law and federal regulations including Supplement No. 5, as mandating the acquisition of utilities services for the federal government from state franchised utilities. Otherwise, the passage of the new legislation would be meaningless. If it were Congress’ intent that Supplement No. 5 could be construed to allow the competi- tive procurement of electric services, why would Congress pass Public Law 99-591? It is well established that subse- quent legislation can provide meaning to previous legisla- tion. See Andrus v. Shell Oil Company 446 U.S. 657, 665 n. 8 (1980) (“[WJhile arguments predicated upon subsequent Congressional actions must be weighed with extreme care, they should not be rejected out of hand as a source that a court may consider in the search for legislative intent”). That Congress intends that the federal government should follow state franchise territory was made clear in the legis- lative history of Public Law 99-591: The Committee believes that the Federal Government as an electric consumer should abide by state franchise territory restrictions and regulatory authority over retail electric rates and service. §620 precludes the promulgation, im- plementation, and enforcement of rules that would permit the Federal Government to escape these limitations. H. R. Report No. 99-723, 99th Cong., 2d. Sess., § 620 at 80 (1986). 11 The effect, then, of the Eighth Circuit’s opinion is to allow the Federal Government to ignore state franchise territories in the acquisition of electric utility service in direct violation of Congressional intent in the passage of Public Law 99-591 as evidenced in the legislative history. The opinions below have had a great impact in the electric industry throughout the nation, have been highly publicized and are being followed in every trade journal of that industry. When the federal government can purchase utility service competitively, but the individual household cannot, the household subsidizes the federal government. Nearly every consumer in the United States is affected by this decision. In light of the new legislation and legisla- tive history showing Congressional intent that the federal government should not ignore state franchised utilities when procuring electric service, and the importance of a national policy regarding the procurement of utility ser- vices by the federal government, it is evident that the ques- tion decided by the Eighth Circuit is an important and sub- stantial federal question and should be reviewed by this Court. Il. Conflict with previous opinions A. Conflict with other Court opinion re- garding procurement regulations. The decision of the Eighth Circuit is in direct conflict with a lower court opinion which was subsequently affirmed without opinion by the United States Supreme Court. In United States v. State Corporation Commission of Virginia, 345 F. Supp. 843 (1972), affirmed without opinion 409 U.S. 1094 (1973), the 3 judge panel United States District Court for the Eastern District of Virginia held that the Virginia State Corporation Commission could regulate telephone service to the Pentagon, a federal 2 | 12 enclave.' The United States had argued that such regula- tion would violate the Supremacy Clause of the United States Constitution. The District Court disagreed based in part on Armed Forces’ Procurement Regulations with similar language to Supplement No. 5. The regulations quoted in State Corporation Commission provided that: In accordance with instructions contained in Department of Defense directives ... the Department of Defense generally procures com- munication services...in accordance with tariff — and tariff ‘rates established ... with governmental bodies unless cause for aa operational requirements dictate other- wise. [emphasis in original]. Jd. at 847. This language is strikingly similar to that contained in Supplement No. 5 at S5-103.2(a): “The Department of Defense procures utility services from industries which are, to a greater or lesser extent, regulated by federal, state and local regulatory bodies.” The 3 member panel District Court stated that: The Supreme Court has continued to require a showing, in Supremacy cases, that the con- stitutionally questioned state law or regulation conflicts with federal statute or policy. [citations omitted]... We find no relevant Federal statute that conflicts with the 1971 State Corporation Commission or- der. We find, furthermore, that there is no discern- ible Federal policy relevant to procurement of telephone services that would be offended by enforcement of the Virginia State Corporation Commission order as to the Government and in fact, recognition of the Virginia tariff is, and has 1The fact that the Pentagon was a federal enclave is clear in the government’s Jurisdictional Statement filed with the court in the appeal from the District Court. 13 been, the Government policy. Jd. at 847. This Court’s affirmance of the District Court judgment at 409 U.S. 1094 is binding upon lower courts. “[Llower courts are bound by summary decisions by this Court ‘until such time as the Court informs [them] that [they] are not.’ Hicks v. Miranda, 422 U.S. 332, 344-45 (1975). The District Court and the Eighth Circuit both ignored State Corporation Commission and cited instead state cases such as Re Souris River Telephone Mutual Aid Corporation, 24 P.U.R. 3d 84 (1958) and Arkansas Power and Light Company v. Arkansas Public Service Commission, 330 S.W. 2d 51, cert denied 362 U.S. 975 (1960), both of which were decided before the promulgation of Supplement No. 5. As the Supreme Court in Hicks, supra, indicated, however, the decision in State Corporation Commission was binding ‘on these lower courts. Summary affirmances and dismissals for want of a substantial federal question without doubt reject the specific challenges presented in the statement of jurisdiction and do leave undisturbed the judg- ment appealed from. They do prevent lower courts from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions... Mandel v. Bradley, 432 U.S. 173, 176 (1977). In determining the precedential value then of a sum- mary affirmance, the jurisdictional statement should be ex- amined. See Mandel, supra, 432 U.S. at 180 (Brennan, J., concurring). The Question Presented in the Jurisdictional Statement submitted by the Department of Justice on be- half of the United States in State Corporation Commission above is as follows: Whether the State Corporation Commission of the Commonwealth of Virginia has unconstitutionally negated a federal contract and federal procure- ment policy by requiring an increase in the rates which the United States pays for telephone service 14 at the Pentagon and other military installations in the Washington metropolitan area of northern Virginia. Jurisdictional Statement, No. 72-723, p. 2, (1972). In support of its argument that this Court should reverse the District Court, the United States also argued that: In addition, Article I, §8, Cl. 17, of the Constitution provides that ‘the Congress shall have Power... To exercise exclusive Legislation in all Cases whatsoever’ over the District of Columbia and ‘to exercise like Authority over all Places purchased by the consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock- Yards, and other needful buildings.’ In Paul v. United States, supra, 371 U.S. at 263, this Court declared that ‘the grant of ‘exclusive’ legislative power to Congress over enclaves that meet the requirements of Art. I, §8, Cl. 17, by its own weight, bars state regulation without specific con- gressional action.’ This Court further stated (371 U.S. at 264) that the jurisdiction of the federal government is also ‘exclusive’ when the govern- ment acquires land for the purposes of Clause 17. In addition, as the Court noted (371 U.S. at 265), in giving the ‘consent’ to the goverment’s acquisi- tion of land for purposes set forth in Clause 17, ‘a State may condition its ‘consent’ upon its retention of jurisdiction, over the lands consistent with the federal use. The application of the foregoing principles to the federal reservation at the Pentagon was not devel- oped in the record below although we believe that point was preserved (Motion to amend complaint. Transcript of Proceedings of May 19, 1972, page 27). The statutes and public records, however, in- dicate that the federal government has ‘exclusive’ jurisdiction over the Pentagon that precludes any state regulation of telephone rate service there, because Virginia gave its ‘consent’ to the federal government’s acquisition of the Pentagon for land 15 for Clause 17 purposes without any reservation of jurisdiction to enact such regulations... In view of the foregoing, we suggest that, as in Paul v. United States, supra, 371 U.S. at 245, if the Court should find that our contentions based on the Supremacy Clause do not suffice to re- quire the relief sought, it would be appropriate to remand the case to the District Court to develop the facts pertinent to this additional constitutional issue. Jurisdictional Statement 13-15. It is evident then that this Court was presented in State Corporation Commission the enclave issue in con- junction with federal procurement regulations which are strikingly similar to those involved here contained in Supplement No. 5. The communication regulations in- volved in State Corporation Commission as they existed at the time of the appeal provided in 22-1003 Policy as fol- lows: [T]he Department of Defense generally procures communication services of the kind offered by common carriers, including equipment and facilities incidental to those services, from com- mon carriers in accordance with tariff provisions, and at tariff rates established with the Federal Communications Commission (FCC) or with other appropriate governmental regulatory bodies un- less cause for operational requirements dictate otherwise. Supplement No. 5 provides similarly at S5-103.2(a) that: “The Department of Defense procures utility services from industries which are, to a greater or lesser extent, regulated by Federal, state and local regulatory bodies.” Under 22-1005 Sources for Communication Services of the procurement regulations involved in State Corporation Commission, it is provided that: (a) Generally communication services shall be procured from the communication common carrier authorized by the appropriate regulatory body to operate within the service area in which the ser- 16 vices are required. (b) Although normally only one carrier is authorized to provide a specific type of service in any given location, there are locations at which no single communication common carrier has the exclusive right to provide the required service. When this is the case and more than one common carrier is authorized and can provide the required service, the procurement shall be made from the source offering the lowest cost to the Government, if practicable... United States v. State Corporation Commission of Virginia, Motion to Dismiss cr Affirm, No. 72-723 Appendix A, p.4- 5 (1972). This language in the telecommunications procure- ment regulations is nearly identical to that contained in Supplement No. 5 at S5-104.1(a): Although in most instances utility service sup- pliers operate in franchise territory, competition may nevertheless exist - for example, where more than one supplier is franchised for a given loca- tion, or where more than one supplier is able to provide service at a given location but no sup- plier has yet been franchised for that location. Therefore, when the location of a new military in- stallation has been determined and the procure- ment of utility services is authorized, the contract- ing activity shall determine whether more than one supplier can provide the service. Where com- petition exists, proposals shall be solicited from all potential suppliers... Accordingly, it is evident that this Court has already made a decision in the State Corporation Commission case on the issue of whether the enclave clause would bar state regulation of the federal government when federal procure- ment regulations show a federal policy of compliance with state law regarding the procurement of services. As the attorney for appellees said in their Motion to Dismiss the United States’ appeal in State Corporation Commission: aie j 17 Here we have a purchase of telephone service pursuant to a clearly defined and universally employed Federal policy fully consistent with State law. The Federal policy being applicable, the new issue of ‘exclusive’ jursidiction now raised by the Government can have no effect on this case. Motion to Dismiss or Affirm, No. 72-723, p. 12 (1972). The United States District Court for the District of South Dakota and the Eighth Circuit, being bound by the State Corporation Commission case, should have ruled that the federal procurement regulations, Supplement No. 5, evidenced a federal policy of compliance with state law despite the fact that EAFB is a partial federal enclave un- der the authority of State Corporate Commission. Because the lower courts involved here did not make such a deci- sion, their decisions are in conflict with a decision of this Court. B. Conflict with previous federal enclave decisions. The Eighth Circuit’s opinion is also in conflict with previous decisions of this Court. The Eighth Circuit ex- tended federal jurisdiction beyond the boundaries of a federal enclave. As delineated in the statement of facts above, only 88% of EAFB is on a federal enclave. As to the other 12%, jurisdiction was never accepted by the federal government pursuant to 40 U.S.C. §255. Under Adams v. United States, 219 U.S. 312 (1943), the federal government has no jurisdiction over that 12% of EAFB upon which it did not give the notice required by 40 U.S.C. § 255. In Adams, the Supreme Court construed 40 U.S.C. § 255 as a prerequisite to the federal government’s acquisition of any type of jurisdiction. The Court in discussing the statute said that: The Act [40 U.S.C.A. § 255] created a definite method of acceptance of jurisdiction so that all per- sons could know whether the government had ob- 18 tained ‘no jurisdiction at all, or partial jurisdic- tion, or exclusive jurisdiction.’ .. . The Department of Justice has abandoned the view of jurisdiction which prompted the institu- tion of this proceeding, and now advises us of its view that concurrent jurisdiction can be acquired only by the formal acceptance prescribed in the Act ...Since the government had not accepted jurisdiction in the manner required by the Act the federal court had no jurisdiction of this proceeding. Here, as set forth above, the federal government has not noted acceptance of jurisdiction pursuant to the provi- sions of 40 U.S.C. 255 on approximately 12% of EAFB. That 12% includes Skyway Housing, Capehart Housing, part of the hospital, the security gate and parts of the run- way. In the absence of an acceptance of either partial or ex- clusive jurisdiction, the United States’ possession of lands is that of an ordinary proprietor. Paul v. United States, 371 U.S. 245, 264 (1963). Accordingly, it is evident that as to the portion of EAFB that is not an enclave, the state of South Dakota has jursidiction and Black Hills should be entitled to serve those portions of EAFB, as the PUC has determined that under South Dakota franchise territory law, Black Hills is entitled to be the sole supplier. 19 WHEREFORE, your petitioners would respectfully re- quest that this Court grant a writ of certiorari to review the decision of the United States Court of Appeals for the Eighth Circuit. Respectfully Submitted, RoGER A. TELLINGHUISEN Attorney General of the State of South Dakota MARY VANDERPAN (attorney of record) General Counsel for South Dakota Public Utilities Commission 500 East Capitol Pierre, South Dakota 57501 Attorneys for Petitioner Public Utilities Commission and State of South Dakota (605) 773-3202 Davip E. Morri.u (attorney of record) MorriLt & BRowNn P. O. Box 8108 Rapid City, South Dakota 57709-8108 Attorney for Petitioner Black Hills Power and Light Company (605) 348-7516 APPENDIX : i TABLE OF CONTENTS OF APPENDIX Page Opinion of the United States Court of Appeals for the Eighth Circuit, filed January 7,1987 ...... la Order of United States District Court, District of South Dakota, Western Division, dated October 16, a oe oe ge aN ha alg ne ite em ee eae 6% 23a Opinion of United States District Court, District of South Dakota, Western Division, dated October 16, Ce ee Tee rE ee ee eT ee ee ee ee 25a Decision and Order before the Public Utilities Commission of the State of South Dakota, dated SS ee ee ee ee 4la Judgment of the United States Court of Appeals for the Eighth Circuit, dated January 7,1987 ..... 57a Order denying petition for rehearing of the United States Court of Appeals for the Eighth Circuit, Gabem Pemrwmety 4, BOR ww cece sees 58a Armed Services Procurement Regulation Supple- ment No. 5, dated October 1, 1974 (Selected PTET CECE RE TTS TR eee ee 59a Federal Register, Vol. 51, No. 88, pages 16988 through 16991, dated May 7,1986 ...... 67a Iu The United States Court of Appeals Hor the Lighth Circuit No. 85-5418 ~—_ Black Hills Power and Light Company, A South Dakota Corporation, Appellant, v. Caspar W. Weinberger, as Secretary of the Department of Defense; Department of Defense, an agency of the United States of America; Richard D. Rasmussen, as con- tracting officer for Elisworth Air Force Base, a defense installation under the control of the Department of Defense; Heartland Consumers Power District, a subdivision of the State of South Dakota; West River Electric Association, Inc., a South Dakota rural electric cooperative; and the Public Utilities Commission, a regulatory commission of the State of South Dakota, Appellees. Black Hills Power and Light Company, Appellant, v. Heartland Consumers Power District, Elisworth Air Force Base, United States of America, Appellees. Black Hills Power and Light Company, Appellant, v. Heartland Consumers Power District, Ellsworth Air Force Base, United States of America, Appellees. / Appeal and _ Cross- Appeal from the Uni- ted States District Court for the District of South Dakota. ’ No. 85-5428 Black Hills Power and Light Company, A q South Dakota Corporation, | Appellee, v. Caspar W. Weinberger, as Secretary of the Department of Defense; Department of Defense, an agency of the United States of America; Richard D. Rasmussen, as con- tracting officer for Ellsworth Air Force Base, a defense installation under control of the Department of Defense; Heartland Consumers Power District, a subdivision of the State of South Dakota; West River Electric Association, Inc., a South Dakota rural electric cooperative; and the Public Appeal and _ Cross- Utilities Commission, a regulatory com- Appeal from the Uni- mission of the State of South Dakota, » ted States District Appellant. Court for the District of South Dakota. Black Hills Power and Light Company, v. Heartland Consumers Power District, Ellsworth Air Force Base; USA. Black Hills Power and Light Company, v. Heartland Consumers Power District, Elisworth Air Force Base, United States of America. Submitted: June 9, 1986 Filed: January 7, 1987 3a Before JOHN R. GIBSON and MAGILL, Circuit Judges, and REGAN,” Senior District Judge. JOHN R. GIBSON, Circuit Judge. Black Hills Power and Light Company and the South Dakota Public Utilities Commission appeal from a judg- ment of the district court denying Black Hills’ motion for a preliminary injunction and summary judgment and granting the United States’ motion to dismiss. Appellants seek to have a contract for electric power entered into by Ellsworth Air Force Base and Heartland Consumers Power District declared void, and an order entered requir- ing Ellsworth to contract with Black Hills for the provi- sion of such power. The central issue on appeal is whether Ellsworth Air Force Base must follow the utility franchise territories prescribed by South Dakota law in procuring its electrical service. We conclude that Ellsworth is a federal enclave under exclusive federal jurisdiction, that nothing in federal procurement law directs the Ellsworth contract- ing officials to follow state utility franchise law, and that none of the legislation enacted by Congress while this case was pending alters our analysis and decision. Therefore, we affirm the decision of the district court.’ Ellsworth Air Force Base is a military installation of the Department of Defense and is located in parts of Meade and Pennington Counties, South Dakota. It occupies 4,856.76 acres, of which approximately 88% (4,261.57 acres) has been ceded by South Dakota to the exclusive jurisdiction of the United States. ~ “The HONORABLE JOHN K. REGAN, Senior United States District Judge for the Eastern District of Missouri, sitting by designation. 1The Honorable Andrew W. Bogue, Senior United States District Judge for the District of South Dakota, Western Division. ae 4a Black Hills is a South Dakota electric utility regu- lated by the South Dakota Public Utilities Commission. It provides electric service to the Renel Heights housing area located on Ellsworth’s main base. This service amounts to approximately 5.3% of Ellsworth’s total electrical consump- tion. Prior to 1984, the rest of the main base needs, over 94% of Ellsworth’s total electric consumption, were sup- plieci by the Western Area Power Administration (WAPA), an agency of the United States Department of Energy. At two housing sites not connected to the main base, ele:tricity is provided by West River Electric Association, a South Dakota rural cooperative. West River’s service provides only .6% of Ellsworth’s total needs. With the exception of the Renel Heights housing area, all electri- cal distribution, transmission, transformation, and street lighting systems located on Ellsworth are owned, operated, and maintained by the United States. The Renel Heights electrical system is owned by Black Hills and is not com- patible with the WAPA-owned electrical system. In 1984 WAPA determined that it could no longer supply all of Ellsworth’s main base needs; thus, Ellsworth would have to contract with another supplier for the additional power The United States solicited bids and five suppliers, including Black Hills, submitted proposals. Ellsworth chose the lowest bid, that of Heartland Con- sumers Power District, a subdivision of the State of South Dakota. Heartland’s proposal was $336,769.20 as com- pared to Black Hills’ proposal of $614,381.19. The United States and Heartland entered into a one-year contract in October, 1984. On November 24, 1984, Black Hills filed a complaint with the South Dakota Public Utilities Commis- sion arguing, among other things, that Ellsworth Air Force Base is located in Black Hills’ utility service territory, and therefore Ellsworth is required to obtain electrical power beyond that supplied by WAPA from Black Hills.” 2The Commission determined that because West River’s service (Footnote continued on the following page) a 5a After a three day evidentiary hearing and a personal inspection of the Air Force base, the Commission issued its decision. It held that it had jurisdiction to determine who has the right to furnish electrical service to the base because, first it has jurisdiction to determine retail service areas of electric utilities, see S.D. Codified Laws Ann. §§49- 34A-42 to 49-34A-44 (1983), and, second, although it does not have jurisdiction over the operations at Ellsworth, it has jurisdiction over the utility companies to determine who has the right to furnish the base with electricity. PUC Decision at 8. In addition, since part of the base was not ceded to the United States, that part is under the Commis- sion’s jurisdiction, and “in order to control the delivery of electric power and energy which is commingled and served throughout the entire Base, it is necessary for the Com- mission to control the whole.” Jd. Furthermore, the Com- mission determined that it was not interfering with federal jurisdiction because Congress has preempted regulation of wholesale sales of power and has left regulation of retail sales to the states. The Commission also decided that the federal procurement regulations direct federal procure- ment officers to abide by local franchise or service ter- ritories. Thus, the Commission concluded that federal law recognizes the Commission’s jurisdiction to determine which electric utility has authority to deliver electric ser- vice to the base. , After deciding that it had jurisdiction, the Commission ruled that the sale of power to the United States is a retail sale, and Ellsworth is located primarily in Black Hills’ service area. It concluded that, under South Dakota law, Black Hills is entitled to be the exclusive provider of electric service to Ellsworth for use at the base. Jd. at 10. 2 (Continued) area encompassed a portion of the base, it was also a party to the proceedings. West River chose not to participate, but instead simply filed a letter with the Commission stating its position. As an appellee in the present case, West River adopts the arguments of Heartland and the United States. 6a Because the 1984-85 contract was awarded to Heartland as the lowest bidder, the Commission als.» discussed issues pertaining solely to Heartland’s authority under state law to provide electric service to the base. However, the one- year contract beginning in October, 1986, was granted to Basin Electric Power Cooperative, a North Dakota entity that submitted a bid lower than Heartland’s. Because the parties are requesting future injunctive relief rather than money damages, the issues concerning Heartland’s authority are now moot. Heartland, the United States, and West River ap- pealed the Commission’s decision to the South Dakota cir- cuit courts, and the United States subsequently removed this appeal to the United States district court. In addition, Black Hills commenced an action for declaratory and in- junctive relief, seeking to have the district court require that the United States contract with Black Hills for the provision of overrun power, and the United States brought an action seeking to enjoin the Commission from prevent- ing the United States from using competitive procedures. The district court consolidated these four cases. Black Hills Power & Light Co. v. Weinberger, Civ. 85-5031, 85-3015, 85-4068, 85-5064, slip op. at 2-4 (D.S.D. Oct. 16, 1985). The court denied Black Hills’ motions for a preliminary injunction and summary judgment and granted the United States’ motion to dismiss. Slip op. at 15. The court dis- missed as redundant the United States request for injunc- tive relief. Jd. at 15-16. The district court held that there was a conflict be- tween state and federal law, and that the supremacy clause, U.S. Const., art. VI, cl. 2, prevented the Commis- sion from forcing the United States to contract with a specified electric utility. Slip op. at 6-13. Additionally, the court concluded that the Commission lacks jurisdiction over Ellsworth Air Force Base because it is an exclusive federal enclave. Jd. at 14. In the alternative, the district court concluded that the South Dakota utility statutes do not apply to the United States. Jd. at 14-15. Ta I Congress has the power “[t]o exercise exclusive Legislation ...over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock- Yards, and other needful Buildings.” U.S. Const. art. I, § 8, cl. 17. The grant of “exclusive” legislative power to Congress over federal enclaves, by its own weight, bars state regulation without specific congressional approval. Paul v. United States, 371 U.S. 245, 263 (1962). The im- portance of distinguishing between jurisdiction on state- owned land and on a federal enclave was articulated by the Supreme Court in Pacific Coast Dairy , Inc. v. Department of Agriculture of California, 318 U.S. 285 (1943). There, a California milk dealer attempted to prevent the California Department of Agriculture from revoking his license for selling milk to the War Department (now Department of Defense) at less than the minimum price fixed by state law. The sale and delivery took place on Moffett Field, federally-owned land, and the Court held that that alone precluded state regulation of the sale, even in the absence of conflicting federal regulation. 318 U.S. at 294. The Court distinguished Pacific Coast Dairy from Penn Dairies, Inc. v. Milk Control Commission of Pennsylvania, 318 U.S. 261 (1943), decided the same day, in which the same state milk control law was held applicable to War Department contracts that were made on land owned by Pennsylvania, and therefore within Pennsylvania’s jurisdiction and con- trol. Id. at 295. The Court held that the distinction be- tween regulation on federal land and on state land was not a technical one, but was necessary to preserve the balance between national and state power and honor Congress’ ex- clusive jurisdiction under the Constitutional. Jd. at 295- 96. It is undisputed that 88% of the Air Force base, in- cluding all of the main operational facilities, was ceded to the United States, part in 1945, part in 1950, and the remainder in 1953. PUC Decision at 4 (referring to EE 8a Black Hills Exhibit 15F). South Dakota reserved only the right to serve criminal and civil process; it surrendered all other jurisdiction. When there is a transfer of sovereignty, state law adopted after the transfer is without force in the enclave. Pacific Coast Dairy, 318 U.S. at 294. In seeking bids for power in excess of its WAPA alloca- tion, the United States specified that the point of delivery and metering is to be the federally-owned substation lo- cated on the base in territory owned by the United States. The electric power delivered to this substation is com- mingled with the power provided by WAPA and served throughout the entire base. South Dakota’s division of the State into franchised utility areas and its authoriza- tion to the Commission to regulate electric service based on those assigned service areas was made long after it lost jurisdiction over the territory.* Thus, South Dakota had no authority to include the federal enclave in its as- signed service territories for the purpose of exerting control over sales of electric service that are consummated within federal territory. The Commission justifies regulating the United States’ ability to use competitive bidding to obtain electrical ser- vice by stating the following: While the Commission herein does not attempt to exercise any jurisdiction over the United States through its operations through Ellsworth at the Base, the Commission does exert its jurisdiction over Black Hills, Heart'and and West River in determining who has the right to furnish electric service to the Base. Even if that part of the Base which was ceded to the United States is not within the jurisdiction of the Commission, that part of the 3The Commission was first granted the authority to estab- lish assigned service areas in 1965. 1965 S. D. Laws 254, §14 (current version at S.D. Codified Laws Ann. §49-34A-44). The Commission did not establish the territorial boundaries that en- compass Ellsworth Air Force Base until 1976. PUC Decision and Order, F-3103 (July 1,1976). — 9a Base which was not ceded to the United States is under the Commission’s jurisdiction, and in order to control the delivery of electric power and energy which is commingled and served throughout the entire Base, it is necessary for the Commission to control the whole. PUC Decision at 8. We reject this analysis. First, as the district court noted, the Commission cannot avoid a clear constitutional barrier to state regulation of the enclave by claiming that it is only exercising jurisdiction over the supplier. The same argument failed in Pacific Coast Dairy, supra, where the Court rejected the lower Court’s determination that the state statute regulates only the purchasing, handling, and processing of milk within California and not the actual sale on Moffett Field. 318 U.S. at 295 . It was clear to the Supreme Court, as it is to us in this case, that the state was simply attempting to regulate sales on federal territory in- directly where it had no authority to do so directly. Cf. United States v. Georgia Public Service Commission, 371 U.S. 285 (1963) (Georgia Public Service Commission could not revoke certificates of carriers for contracting at rates other than those prescribed by Commission where state law conflicted with federal procurement policy); Paul v. United States, supra (California could not sue milk sup- pliers whose bids on a contract with United States or at a price below the state minimum when state regulation conflicted with federal procurement policy); Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956) (State could not apply its license requirement to building contractor who con- tracted with the United States where requirement would frustrate federal policy).‘ “While these cases discuss conflicting state and federal regula- tion in the context of the supremacy clause, their analysis is equally applicable to state regulation that interferes with ex- clusive federal jurisdiction under the enclave clause. They il- lustrate that a state cannot diminish the constitutional authority of the United States government by regulating the parties with whom it may contract. 10a This court also finds unpersuasive the assertion that the Commission may exercise jurisdiction over all of the federal territory because approximately 12% of the Air Force base is-on land that has not been ceded to the United States. As previously stated, the point of delivery and metering for the overrun electricity is a substation owned by the United States, through WAPA, and is located on land that has been ceded to the United States. The over- run power is commingled with that supplied by WAPA and may or may not be distributed to the buildings in non- federally owned territory. Some of this overrun electrical power, either that provided by WAPA or that provided by the electric utility with whom the United States contracts, may be used in areas that are within the ceded territory. Likewise, some of the power supplied by WAPA, a federal agency over which the Commission admittedly has no juris- diction, see PUC Decision at 8-9, may serve the area that is within the State’s jurisdiction. Once the power is com- mingled at the point of delivery, it is impossible to deter- mine what portion of the base is served by WAPA and what portion is served by the private utility. We believe that exclusive federal jurisdiction over eighty-eight percent of the base need not be surrendered because of the possibility that the purchase and distribution of electricity within the enclave may affect the need for electricity on the small sec- tion of the base that is still within South Dakota’s jurisdic- tion. These effects are not enough to allow the Commission to regulate transactions that take place exclusively within the enclave. Cf. United States v. State Tax Commission of Mississippi, 412 U.S. 363 (1973)) (twenty-first amendment confers no power on a state to regulate importation of al- cohol into a military base on exclusive federal territory even if liquor sold there is for use and consumption on state-owned land). — The facts indicate that the purpose behind the State’s regulation of service territories, the “prevention of un- necessary duplication of electric facilities,” PUC Decision ’ lla at 8, would be best served if the United States had juris- diction over the procurement and distribution of electric service for the entire base. As previously stated, with the exception of the Renel Heights housing area, the United States owns, operates and maintains the entire Ellsworth electrical system. In addition, the Commission admits that it has no jurisdiction to restrict the amount of electrical service generated by the United States through WAPA, and that WAPA could serve even the non-ceded portions of the base. Jd. at 8-9. In fact, until 1984, when the demand for power at Ellsworth exceeded its WAPA allocation, the Commission did not control the power that was delivered to the non-ceded portion of the base. Thus, the rationale that the Commission’s lack of authority to control the flow of power to the state-owned territory will result in un- necessary duplication of electric facilities is without logic. However, we need not extend the jurisdiction of the United States beyond the borders of the federally-owned territory in order to hold that South Dakota has no jurisdiction to prevent the United States from using competitive bidding to purchase electric service for delivery within the enclave. Black Hills and the Commission assert that state juris- diction is permissible because there is no interference with the jurisdiction asserted by the federal government. However, the cases cited by appellants do not support their position regarding state jurisdiction or regulation within a federal enclave. Appellants argue that Howard v. Commissioners of the Sinking Fund, 344 U.S. 624 (1953), provides authority for the Commission’s division of Ellsworth into assigned service areas. In Howard, the Supreme Court allowed the City of Louisville to annex certain territory, embracing a Naval Ordnance plant that had been acquired by the United States. The Court held that it was permissible for the State to include the piant within the boundaries of the city, as “[a] state may con- form its municipal structures to its own plan, so long as the state does not interfere with the exercise of juris- ts | 12a diction within the federal area by the United States.” Id. at 626-27 (emphasis added). Thus, Howard does nothing to alter the exercise of exclusive federal jurisdiction over federally-owned territory. The Court determined in that case that including the enclave within the city’s bound- aries did nothing to affect the use or disposition of the property by the United States. Jd. at 627. However, by ordering the United States to contract with a particular utility based on an assigned service area, the South Dakota Public Utilities Commission has directly interfered with the United States’control over the provision of electrical service within the base. Similarly, the other cases cited by Appellants all involve instances in which the state regula- tion only generally affected federal property, and in no way placed any restrictions on the ability of the United States to enter into contracts regarding the use of the federally- owned property. See, United States v. City of Bellevue, 474 F.2d 473 (8th Cir.), cert. denied, 414 U.S. 827 (1973) (City may annex Air Force base to the extent permitted by Congress); Bartsch v. Washington Metropolitan Area Transit Commission, 357 F.2d 923 (4th Cir. 1966) (per curiam) (Washington, D.C. Commission had jurisdiction to set taxicab rates to and from Washington National Airport, a federal enclave). In two factually similar cases, it was recognized that state regulation of utility service to federal instal- lations intrudes upon the exercise of exclusive federal jurisdiction. In Re Souris River Telephone Mutual Aid Corporation, 24 Pub. Util. Rep. 3d (PUR) 84 (1958), the North Dakota Public Sevice Commission held that it had no power to grant or deny a certificate to con- struct telephone facilities on a federally owned Air Force base where jurisdiction and control of the land had been transferred to the federal government. Jd. at 86. Likewise, in Arkansas Power and Light Company v. Arkansas Public Service Commission, 231 Ark. 142, 330 S.W.2d 51, cert. denied, 362 U.S. 975 (1960), the Arkansas 13a Supreme Court recognized that allowing the State Public Service Commission to designate, based on specified service areas, the utility from which the United States govern- ment must purchase electricity would interfere with car- rying out the operations of the Air Force base. Jd. at 144- 148, 330 S.W.2d at 52-54. In that case, because the United States had not acquired jurisdiction over the land on which the Air Force base was located, the Arkansas court based its decision on actual conflict between state and federal regulation. Here we are dealing with a federal enclave, and the United States has exclusive jurisdiction even ab- sent such conflict. Paul, 371 U.S. at 263-64. I. Black Hills and the Commission argue strenuously that even if this is federally-owned territory, Congress has taken specific action mandating that federal procure- ment officers follow state utility franchise law in pur- chasing electricity. See Paul, 371 U.S. at 245. In sub- stance, appellants argue that even if the federal govern- ment has exclusive jurisdiction over the enclave, federal law specifically defers to state utilities franchise law and prevents Ellsworth from procuring services through com- petitive bidding. After carefully examining the relevant federal law, we must reject this argument. Federal procurement law is specifically designed to en- sure “active competition so that the United States may receive the most advantageous contract.” Paul, 371 US. at 253. The authority to procure public utility services for the military has been delegated by the General Services Administration (GSA) to the Secretary of Defense. See 15 Fed. Reg. 8227 (Dec. 1, 1950) (adopted as amended at 41 C.F.R. §101-33.002). The “Statement of Understanding ” between the GSA and the Department of Defense provides that: The basic purpose of the agreements and proce- dures outlined herein relating to utility services l4a is that all these services shall be procured or provided at the minimum practical total cost to the government. Id. (emphasis added). The statutes and regulations applicable when the United States solicited bids in 1984~—as well as the recent amendments under the Competition in Contracting Act of 1984, Pub. L. No. 98-369, 98 Stat. 1175 (relevant portions codified in scattered sections of 10 U.S.C. and 41 U.S.C.), applicable at the time of the two subsequent procure- ment decisions® — do not mandate that federal officers fol- low state utility franchise law in procuring electrical ser- vice. Quite the opposite is true. The Federal Acquisition Regulation makes clear that the general rule is the promo- tion of “full and open competition in soliciting offers and awarding Government contracts.” 48 C.F.R. §6.101 (1985) (citing 10 U.S.C. §2304 (Supp. III 1985)). The procuring agency must use competitive procedures unless the agency, in exercising its discretion, determines that competition does not exist. If the procurement official determines that competition does not exist, the regulations permit him to depart from standard competitive procedures. However, there is nothing in the regulations that require him to do SO. One example of when an agency may depart from us- ing competitive procedures is when there is only one avail- able source: The head of an agency may use procedures other than 5 An appellate court must apply the law in effect at the time it renders its decision. Bradley v. Richmond School Board, 416 U.S. 696, 711 (1974) (quoting Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 281 (1969)). Thus, we must con- sider the Competition in Contracting Act as applicable law. This is particularly appropriate since this case is one for injunctive relief—an order requiring the government to purchase electrical service for Ellsworth from Black Hills. 15a competition only when - (1) the property or services needed by the agency are available from only one responsible source and no other type of property or services will satisty the needs of the agency. 10 U.S.C. §2304(c)(1); see also 48 C.F.R. 6.302-1(a)(2). The term “responsible source” is defined at 41 U.S.C. §403 (Supp. III 1985).° It includes a number of relevant fac- tors to be considered by the procuring agency, one of which is whether the prospective contractor “is otherwise qualified and eligible to receive an award under applicable laws and regulation.” See id. §403(8)(G). Black Hills argues that “[s]tate electric law is applicable law” and that these regulations “strengthen the argument that the Department of Defense should follow state law in the procurement of utility services.” Black Hills Brief at 39, 41. The statute’s reference to “applicable law,” however, does not change the discretionary nature of determin- ing whether more than one responsible source exists and whether competitive procedures should be departed from. It is relevant that in the Paul case, supra, the Supreme Court examined almost identical language in a federal 6This section provides: the term “responsible source” means a prospective contractor who — (A) has adequate financial resources to perform the contract or the ability to obtain such resources; (B) is able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and Government business commitments; (C) has a satisfactory performance record; (D) has a satisfactory record of integrity and business ethics; (E) has the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain such organization, experience, controls, and skills; (F) has the necessary produc- tion, construction, and technical equipment and facilities, or the ability to obtain such equipment and facilities; and (G) is other- wise qualified and eligible to receive an award under applicable laws and regulations. 16a procurement provision and held that it did not require the procurement official to follow state law: (TJhe references to rates or prices “fixed by law or regulation” are merely minor collateral accom- modations to those situations where, within the limits of the Regulation and the 1962 Act, the federal procurement official decides that the prac- tical way to obtain the supplies or services is by following the state price-fixing or rate-fixing sys- tem. 371 U.S. at 260-61. Thus, the determination of whether competition exists is not one to be made based on South Dakota utility franchise law, but instead is within the sound discretion of the Air Force. Uniform policy for the procurement of utility ser- vices by the Department of Defense is provided by Armed Services Procurement Regulation Supplement No. 5. See 48 C.F.R. §208.3 (1985). Contrary to the assertions of the Commission and Black Hills, Supplement No. 5 does not amount to specific congressional action directing the Air Force to follow state utility service areas in purchasing electricity. While Supplement No. 5 describes instances in which competition may not be possible because of the existence of state franchise areas, it includes no directive to Department of Defense agencies to surrender their dis- cretion in determining the the existence of competition in order to secure a contract for the government “at the min- imum practical total cost ***.” 15 Fed. Reg. 8227 (Dec. 1, 1950). Appellants rely quite heavily on the language in paragraph S5-104.1, entitled “Determination as to the Existence of Competition,” which states: (a) Although in most instances utility service sup- pliers operate in franchised territory, competition may nevertheless exist—for example, where more than one supplier is franchised for a given loca- 17a tion, or where more than one supplier is able to provide service at a given location but no sup- plier has yet been franchised for that location. Therefore, when the location of a new military in- stallation has been determined and the procure- ment of utility services is authorized, the contract- ing activity shall determine whether more than one supplier can provide the service. Where com- petition exists, proposals shall be solicited from all potential suppliers. Even where one of the com- peting potential suppliers has entered into a GSA area contract, proposals shall be solicited to deter- mine definitely which of the suppliers offers more advantageous competing services under the par- ticular circumstances. (b) Similarly, where an existing installation is be- ing served by one supplier, and either another prospective supplier requests an opportunity to furnish the service or the Department concerned becomes aware of another potential supplier, the Department shall determine whether more than one supplier can provide the service. Where com- petition is found to exist, competitive solicita- tion of proposals shall be initiated at whatever time is considered to be most advantageous to the Government. The district court correctly determined that this section applies only to new military installations or existing in- stallations being served by only one supplier. Slip op. at 11. Ellsworth is neither a new installation nor is it supplied electricity only by Black Hills. To the con- trary, the majority of its power is provided by WAPA through the WAPA .«...ued system. Even in those instances where paragraph S5-104.1 does apply, the main concern is whether competition exists as a practical matter. While state franchise territories may indicate that competition is not possible, their existence does not preclude the United States from making this determination. In the present case, the United States owns the electrical system that serves over 94% of the Air Force base. The Ellsworth ' 18a contracting officer determined that a number of potential suppliers could distribute energy through the federally- owned lines without duplication of transmission facilities. Having determined that competition exists, Supplement No. 5 mandates that “proposals shall be solicited from all potential suppliers.” 9S5-104.1(a). Thus, the actions of the Air Force in seeking competitive bidding for the overrun electricity were clearly authorized by the relevant procure- ment statutes and regulations.’ III. Finally, we must address the controversy surround- ing Section 8.304-91 of the Air Force Federal Acquisition Regulation Supplement issued on June 24, 1985, the proposed rule of May 7, 1986, and subsequent congres- sional legislation preventing enforcement or implementa- tion of either of these new regulations.® 7 Appellants’ reliance on the Public Utility Regulatory Policies Act of 1978, 16 U.S.C. §§2601-2645 (1982), is misplaced. That Act simply indicates that the federal government has not preempted state regulation of electric utilities that provide retail service. Although the Act recognizes that states may continue to regulate the operations of utility suppliers within the state, it does not permit state regulations to displace federal jurisdiction on a federally-owed enclave. Nor does it alter federal procure- ment law. See, e.g., United States v. Georgia Public Service Commission, 371 U.S. 285 (1963), (although state generally regu- lates shipping rates by intrastate carriers, regulations must give way in light of conflicting federal procurement policy). 8The addition to the Air Force Federal Acquisition Regulation Supplement, section 8.304-91, provides: The contracting officer shall determine by market sur- vey if more than one supplier can furnish needed public utility services for proposed procurements prior to us- ing other than competitive procedures. The existence of (Footnote continued on the following page) 19a The Air Force regulation was issued by the Department of the Air Force as an internal procurement management instruction and was not published in the Federal Register.? The May 7, 1986 proposed rule was proposed jointly by the Department of Defense, GSA, and NASA. Both the proposed rule and the Air Force regulation make clear that contracting officers must acquire utility services competitively, and the existence of state or local franchise service territories may not be used as a basis for deeming the acquisition of utilities to be a “sole source” exception to the normal competition requirements. This is a departure from previous regulations in that it takes away the discretion of the federal agencies: they must, in 8 (Continued) franchised service territories established by state or local governmental entities does not in and of itself restrict acquisition of public utility services to a sole source. The contracting officer need not enter into a con- tract with the state or locally franchised public utility supplier simply because the supplier has obtained the local franchise. The contracting officer should instead seek to competitively acquire public utility services whenever possible. Likewise, the relevant part of the May 7, 1986 proposed rule states: 41.104 Acquisition Policy *** (b) The existence of franchised service territories is not a justification for the acquisi- tion of utility services on a “Sole Source”basis (see 6.302-1). * * * (d) The contracting officer shall acquire utility services by con- tract * * * whether or not rates or conditions of service are fixed by a Federal, State, or other regulatory body. 51 Fed. Reg. 16989 (1986) (to be codified at 48 C.F.R. pt. 41) (proposed May 7, 1986). °In their briefs, appellants argue that this regulation was not timely issued under section 2752 of the Competition in Contracting Act of 1984, Pub. L. No. 98-369, 98 Stat. 1203 (referenced in 41 U.S.C. §403 note), and that it was a substantive change that should have been published in the Federal Register. In light of the subsequent congressional legislation prohibiting the regulation’s enforcement or implementation, we need not ad- dress this question. ’ 20a every case, use competitive procedures. The district court referred to the proposed rule in its opinion and intimated that although it did not apply retroactively to the 1984 procurement, it appeared to moot Black Hills’ claim for any future injuctive relief. Slip op. at 12. Since the district court opinion was issued, however, Congress has adopted legislation that prevents any of the funds appropriated for the Department of Defense in 1987 to be used to implement or enforce either the proposed rule or Section 8.304-91 of the Air Force FAR Supplement. Act of Oct. 18, 1986, Pub. L. No. 99-500 (enacting into law H.R.J. Res. 738, 99th Cong., 2d Sess. (1986) (making continuing appropriations for the fiscal year 1987)). Furthermore, the Conference Committee has directed the Department of Defense “not to implement ad- ditional changes affecting the purchase of utilities until after they have been formally presented to and approved by the Committee on Appropriations of the House and Senate.” 132 Cong. Rec. H10728 (daily ed. Oct. 15, 1986). ’ Responding to the “sigificant policy issues” raised by the proposed rule, the Department of Defense, GSA, and NASA stated that a final rule on the acquisition of utility services would not be promulgated until those issues are resolved. 51 Fed. Reg. 36970 (Oct. 16, 1986). They issued a final rule amending FAR Section 8.300 to read: This subpart prescribes policies and procedures for the acquisition of utility services. Agency policies and procedures predating the effective date of the Federal Acquisition Regulation (FAR) may con- tinue to be used. However, any new or changed policies or procedures must be approved in ad- vance by the appropriate FAR council. Id. at 36971. Appellants contend that this new congressional legis- lation and the amendment to FAR reaffirm Supplement No. 5 as the applicable law in procuring utility services. While this is a correct assertion, it does not advance their 2la position. We have already determined that Supplement No. 5 does not require the federal government to defer to a state’s regulation of franchise territories; nothing in the new legislation changes this. The reports accompany- ing the legislation indicate concern over a general procure- ment policy that would require federal contracting officers to “ignore state-created utility service territories.” S. Rep. No. 406, 99th Cong., 2d Sess., §618, at 68 (1986); H.R. Rep. No. 723, 99th Cong., 2d Sess., 620, at 79 (1986). The Senate report states the following: The Committee has adopted this section to protect utility customers from the burden of increased rates that inevitably would result if federal facilities abandon local utility systems. Utility systems have built necessary capacity under State-created obligations to serve all customers, including federal facilities, within their service territories. As a general rule, under state law only one utility is authorized to provide retail utility service within its service territory. The proposal has serious legal, technical, and economic reper- cussions. The committee intends that this provi- sion avoid these detrimental consequences. S. Rep. No. 406, 99th Cong., 2d Sess. §618, at 68 (1986). This statement indicates that Congress was concerned with a particular situation: one in which a federal facility that obtains all of its electricity from a single utility switches suppliers and abandons a local utility system that has already built the necessary capacity. In the present case, however, the general rule that “only one utility is authorized to provide retail utility service” does not apply. Both WAPA and Black Hills provide service to the main base.?° 10 The parties have strongly disputed whether the sale of over- run power to Ellsworth is a sale at retail or wholesale. The (Footnote continued on the following page) 22a Ellsworth is not abandoning the Black Hills facilities, but is making the most efficient use of the existing WAPA distribution system.'? We do not believe that Congress in- tended to prevent the use of competitive procedures in this situation. Had Congress wanted to mandate that state franchise law governs the determination of when a utility is in a “sole source” position, it could easily have done so. Congress has specifically provided that agencies may use other than competitive procedures if a statute requires that procurement be from a specified source. 10 U.S.C. §2304 (c)(5). However, Congress has never enacted a statute requiring that the United States purchase utility service from local franchise utilities. Finding nothing in federal law that specifically directs such procurement, we cannot order Ellsworth to contract with Black Hills for the over- run electrical service to an exclusive federal enclave. The judgment of the district court is affirmed. A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT. 10 (Continued) Commission determined that, under South Dakota law, the sale is at retail. The district court, however, did not reach that issue. For our present purpose, it is relevant to note only that, whatever label is given to the type of electric service being provided, the electricity delivered by WAPA and by the supplier of the overrun amounts is used for the same purposes. Thus, there is more than one authorized utility providing the same service. 11The competitive bidding procedure for procuring overrun power had no effect on Black Hills’ service to the Renel Heights area. Black Hills continues to use its electrical system to provide service to this housing area. 23a UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION FILED October 16, 1985 WILLIAM F. CLAYTON CLERK arr BLACK HILLS POWER & LIGHT COMPANY, a South Dakota Corporation, Plaintiff, v. CASPAR W. WEINBERGER, et al, Defendant. BLACK HILLS POWER & LIGHT COMPANY, a South Dakota Corporation, Plaintiff, v. HEARTLAND CONSUMERS POWER DISTRICT, ELLSWORTH AIR FORCE BASE: UNITED STATES OF AMERICA, Defendants. BLACK HILLS POWER & LIGHT COMPANY, a South Dakota Corporation, Plaintiff, v. HEARTLAND CONSUMERS POWER DISTRICT, ELLSWORTH AIR FORCE BASE: UNITED STATES OF AMERICA, Defendants. UNITED STATES OF AMERICA, Plaintiff, v. THE PUBLIC UTILITIES COMMISSION OF THE STATE OF SOUTH DAKOTA, Defendant. — ; CIV 85-5031 CIV 85-3015 ORDER CIV 85-4068 CIV 85-5064 Pe eS ee 24a In accordance with this Court’s Memorandum Opinion, it is hereby ORDERED that in CIV 85-5031 Plaintiff Black Hills Power & Light Company’s Motions for a Preliminary Injunction and for Summary Judgment are denied. Furthermore, it is hereby ORDERED that in CIV 85-5031 Defendants’ Motion to Dismiss is granted. It is also ORDERED that CIV 85-3015 is hereby dismissed as moot. Similarly, it is hereby ORDERED that CIV 85-4068 is hereby dismissed as moot. Finally, it is hereby ORDERED intervenor Biack Hills Power & Light’s Motion to Dismiss CIV 85-5064 be, and the same hereby is, granted. Dated this 16th day of October, 1985. BY THE COURT: ANDREW W. BoGUE ANDREW W. BOGUE, SENIOR JUDGE ATTEST: WILLIAM F. CLAYTON, CLERK BY /s/ ALICE R. RAESLY DEPUTY => * 25a UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION FILED October 16, 1985 WILLIAM F. CLAYTON CLERK BLACK HILLS POWER & LIGHT » COMPANY, a South Dakota Corporation, CIV 85-5031 _ Plaintiff, v. CASPAR W. WEINBERGER, et al, Defendant. BLACK HILLS POWER & LIGHT COMPANY, a South Dakota Corporation, Plaintiff. CIV 85-3015 v. HEARTLAND CONSUMERS POWER DISTRICT, ELLSWORTH AIR FORCE BASE: UNITED STATES OF AMERICA, MEMORANDUM Defendants. OPINION BLACK HILLS POWER & LIGHT COMPANY, a South Dakota Corporation, Plaintiff, v. HEARTLAND CONSUMERS POWER CIV 85-4068 DISTRICT, ELLSWORTH AIR FORCE BASE, and UNITED STATES OF AMERICA, Defendants. UNITED STATES OF AMERICA, Plaint, CIV 85-5064 v. THE PUBLIC UTILITIES COMMISSION OF THE STATE OF SOUTH DAKOTA, Defendant. / a 26a There are four consolidated cases before this Court on various motions. The cases which have been consolidated and the motions which have been made are as follows: I BLACK HILLS POWER & LIGHT CO. vs. CASPAR W. WEINBERGER, ET AL-CIV 85- 5031 This action for declaratory and injunctive relief was commenced by Planitiff Black Hills Power & Light Company, a South Dakota Corporation (hereinafter BHP&L) against Caspar W. Weinberger, as Secretary of the Department of Defense, an agency of the United States of America, Richard D. Rasmussen, as contracting officer for Ellsworth Air Force Base (EAFB), a defense instal- lation under the control of the Department of Defense, Heartland Consumers Power District, a subdivision of the State of South Dakota (hereinafter Heartland), West River Electric Association, Inc., a South Dakota rural electric cooperative, and the South Dakota Public Utilities Commission (hereinafter PUC), a regulatory commission of the State of South Dakota. Essentially, BHP&L seeks to have this Court require the United States to contract with BHP&L for the provision of overrun power to EAFB. Additionally, BHP&L seeks to have this Court declare the contract into which the United States and Heartland entered void. The other specific relief sought by BHP&L is set forth at pages 10 and 11 of its Complaint. In this action BHP&L initially moved for a prelimi- nary injuction. Subsequently, the United States moved to dismiss this action pursuant to Federal Rule of Civil Procedure 12. The rationale for the motion to dismiss is set forth by the United States as follows: ...{TJhe grounds for this motion are that this Court has no jurisdiction to order the the United States to enter into a contract with Black Hills; that plaintiffs action is barred by the Supremacy Clause of the United States Constitution because 27a the South Dakota Public Utilities Commission cannot regulate the manner in which the United States Government seeks to secure services for its military installations, that the state may not regu- late a federal enclave; and that there is no entitle- ment to a contract with United States... After the Government filed its Motion to Dismiss, BHP&L moved for summary judgment in this action. In this motion, BHP&L recites that “...the entire record before the Public Utilities Commission of the State of South Dakota wherein Plaintiff was granted the right to serve electric service to Ellsworth Air Force Base and all of the other files and briefs and pleadings are hereby in- corporated by reference into this motion...” These three motions are before the Court for resolution. Il IN THE MATTER OF THE COMPLAINT OF THE BLACK HILLS POWER & LIGHT COMPANY AGAINST HEARTLAND CON- SUMERS POWER DISTRICT WITH RE- GARD TO ELECTRIC SERVICE TO ELLS- WORTH AIR FORCE BASE NOTICE OF APPEAL - CIV 85-3015 The PUC entered a Decision and Order on February 4, 1985 in which it held that EAFB was required to be served by BHP&L. The United States, on behalf of EAFB, ap- pealed that decision in the South Dakota Circuit Court, Sixth Judicial Circuit, County of Hughes. The West River Electric Association, Inc. also appealed the PUC decision in the Circuit Court, Sixth Judicial Circuit, County of Hughes. The United States subsequently removed this ap- peal to the United States District Court for the District of South Dakota, Central Division. This appeal was subse- quently consolidated with CIV 85-5301, 85-4068 and CIV 85-5064 in this division. There are no motions outstanding in this appeal. a 28a III. IN THE MATTER OF THE COMPLAINT OF BLACK HILLS POWER AND LIGHT COMPANY AGAINST HEARTLAND CON- SUMERS POWER DISTRICT WITH RE- GARD TO ELECTRIC SERVICE TO ELLS- WORTH AIR FORCE BASE.-CIV 85-4068 Heartland Consumers Power District appealed from the February 4, 1985 PUC decision in the South Dakota Circuit Court, Fourth Judicial Circuit, County of Lake. The United States subsequently removed this appeal to the United States District Court for the District of South Dakota, Southern Division. This appeal was subsequently consolidated with CIV 85-5031, CIV 85-3015 and CIV 85- 5064 in this division. There are no motions outstanding in this appeal. IV UNITED STATES OF AMERICA VS. THE PUBLIC UTILITIES COMMISSION OF THE STATE OF SOUTH DAKOTA - CIV 85-5064 The United States brought this action against the PUC seeking declaratory and injunctive relief. Essentially, the United States seeks to have this Court enjoin the PUC “from preventing the United States from seeking the most advantageous contract for the supply of electricity to Ellsworth Air Force Base.” This action was subsequently consolidated with CIV 85-5031 and CIV 85-3015 and CIV 85-4068. BHP&L moved to intervene in CIV 85-5064 and also moved to dismiss CIV 85-5064. BRIEF FACTUAL BACKGROUND The record from the hearing before the PUC is voluminous. The recitation of facts necessary for decisions on the motions currently before the Court is, however, rela- tively brief. EAFB is a military installation of the Department of 29a Defense which is located in parts of Meade and Pennington Counties, South Dakota. Prior to 1984, the main base electic power needs of EAFB were provided by the Western Area Power Administration (hereinafter WAPA), an agency of the United States Department of Energy. BHP&L supplied and continues to supply electricity for the Renel Heights housing area located on the base. In 1984 WAPA concluded that it was unable to provide all of EAFB’s main base electrical needs. The United States then sought to meet EAFB’s overrun needs for electricity through the solicitation of proposals for the supplying of these needs. The United States received a total of five bids for the supplying of EAFB’s additional electric needs. Amongst the proposals was one from BHP&L. The contract was awarded to the lowest bidder, Heartland. In October of 1984, Heartland and the United Stated then entered into a one-year contract for the delivery of the overrun electricity. BHP&L subsequently filed a protest with the EAFB contracting officer in accordance with the Federal Acquisition Regulations (FAR). Before a response to that protest had been given, BHP&L filed a complaint with the PUC. The PUC determined that another entity, the West River Electric Association, was a party to the proceed- ings on the complaint, together with Heartland, EAFB and BHP&L. Hearings were held before the PUC in December, 1984 and January, 1985. On February 4, 1985, the PUC issued its decision. The PUC ruled that BHP&L “is the electric utility which is en- titled to furnish, and from which Ellsworth shall acquire, all of the electric power and energy needs of the United States at that part of Ellsworth Air Force Base referred to in these findings as the “Base” ...” The Decision of the PUC then specified that nothing therein should be inter- preted to preclude EAFB from obtaining power through WAPA. cca aaa 30a The cases and appeals which are here consolidated sprang up after this PUC Decision and Order were entered. DECISION The threshold question’ with which this Court must deal is the Supremacy Clause issue. Article VI, Clause 2 of the United States Constitution provides that: This Constitution, and the Laws of the United States which shall be made in pursuance thereof... shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding. The Supreme Court has had numerous opportunities to construe the Supremacy Clause. See, eg. Paul v. United States, 371 U.S. 245, 253 (1963); Public Utilities - Commission v. United States, 355 U.S. 534 (1958); United States v. Georgia Public Service Commission, 371 U.S. 285 (1963) and Leslie Miller, Inc. v. Arkansas, 352 U.S. 187 (1956). This court has also had occasion to rule on the Supremacy Clause. See e.g. Citizens & Landowners, etc. v. Secretary, etc., 513 F.Supp. 257 (D.S.D. 1981), affirmed, 683 F.2d 1171 (8th Cir. 1982). The test to be applied in Supremacy Clause cases was reiterated by the Court of Appeals for the Eighth Circuit in Citizens, supra. at 1178. Specifically, the Court stated: ...In Hancock v. Train, 426 U.S. 167, 178, 96 S.Ct. 2006, 2012, 48 L.Ed.2d 555 (1976), the Supreme Court stated: It is a seminal principle of our law “that the constitution and the laws made in pursuance thereof are supreme; that they control the con- stitution and laws of the respective States, and 1 Numerov-> and voluminous briefs have been filed in this case. The Court will not address every issue which has been raised but, instead, will discuss those issues upon which its decision is based and which it believes are dispositive. 3la cannot be controlled by them.” M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 426, 4 L.Ed. 579 (1819). Accordingly, “the activities of the Federal Govern- ment are free from regulation by any state.” Jd. at 178, 96 S.Ct. at 2012, quoting Mayo v. United States, 319 U.S. 441, 445, 63 S.Ct. 1137, 1139, 87 L.Ed. 1504 (1943) (footnote omitted). Congress, of course, may choose to subject its in- strumentalities or property to state regulation. However, [bJecause of the fundamental importance of the principles shielding federal installations and activities from regulation by the States, an authorization of state regulation is found only when and to the extent there is a “clear con- gressional mandate,” “specific congressional ac- tion” that makes this authorization of state regulation “clear and unambiguous.” Hancock v. Train, supra, 426 U.S. at 179, 96 S.Ct. at 2012 (footnotes omitted). The parties disagree strenuously concerning the ex- istence or non-existence of: (1) a conflict between the federal law involved and the relevant state law and (2) the presence or absence of a “clear congressional mandate” concerning the allowance of state regulation of the Federal Government’s acquisition of electric power on a federal military installation. In order to discern if a conflict exists and whether Congress has spoken “clearly and unambiguously”, the relevant federal law must be examined. The law which ap- plies to the procurement of this electric service is set forth at 10 U.S.C. § 2301 et. seg., as amended by the Competition in Contracting Act of 1984, §§ 2721-27, 98 Stat. 1175, 1185- 95.? 2The amendments apply to solicitations for proposals after March 31, 1985 and are therefore not at issue here. ee 32a The Government contends that it negotiated the con- tract under what was 10 U.S.C. §2304(g) which provides that: In all negotiated procurements in excess of $25,000 in which rates or prices are not fixed by law or regulation and in which time of delivery will permit, proposals, including price, shall be solicited from the maximum number of qualified sources consistent with the nature and requirements of the supplies or services to be procured... .. The Federal Acquistion Regulation which pertains to the transaction in question is found at 48 CFR § 203.3, Acquisition of Utility Services. That regulation states: “See Supplement No. 5, Procurement of Utility Services.” The meaning of certain provisions of Supplement No. 5 con- stitutes the crux of the disagreement between the United States, the WREA and Heartland on one side and BHP&L and the PUC on the other side. The PUC specifically found that EAFB “failed to follow the provisions of Supplement No. 5, including S5-102, S5- 103.2(a), S5-104.1(a)(b).” (PUC Decision and Order, page 5, Finding of Fact 11). It is around these provisions that the controversy continues to exist. Therefore, the relevant positions of the Supplement will be set forth in their en- tirety. SF-102 General provides as follows: SF-102 General. Utility suppliers may te quasi-public service corporations, private con- cerns, municipalities, associations, or coopera- tives. They generally operate in a franchised territory without competition, so they may fre- quently be in a “sole source” position. Under common law, however, public utilitites must render service at reasonable rates and without unjust discrimination. Furthermore, their opera- tions, management, rates, and profits are usually regulated by Federal, state, or local regulatory bodies, but absence of a regulatory body does Wiehe (ss At CRAG 33a not necessarily mean a complete lack of con- trol. Administrative remedies pursuant to ena- bling statutes may be pursued or complaints may be taken to a court of competent jurisdiction. In instances where such remedies are to be taken, authorization shall be obtained from the Chief of Engineers for the Army; the Commander, Naval Facilities Enginering Command for the Navy; or Headquarters USAF (AF/LGPLA) for the Air Force; the Executive Director of Procurement and Production, for DSA; or their designees. This provision is descriptive in nature and does not man- date any particular action on the part of the United States. Furthermore, a subsequent regulation, S5-103.2, specifically enumerates the matters concerning which the Department of Defense defers to state regulations. S5-103.2 Procurement from Utility Suppliers. (a) The Department of Defense procures utility services from industries which are, to a greater or lesser extent, regulated by Federal, state, and lo- cal regulatory bodies. Notwithstanding the other provisions of this Regulation, as to those matters over which the appropriate regulatory body has taken jurisdiction it is the policy of the Department of Defense, as a matter of comity rather than law, to comply with the current regulations, prac- tices, and decisions of that body concerning ac- counting practices, allowability of costs pricing, and rates, subject to judicial appeal through the normal channels. As to those matters concerning which the regulatory body has not accepted juris- diction or has not spoken, or for which there is no appropriate regulatory body, the rules of the Federal Power Commission and the general prac- tices of the particular utilities industry as to ac- counting practices, allowability of costs, pricing, and rates shall be followed. This policy does not extend to the regulations, practices, or decisions of regulatory bodies whose decisions are not sub- ject to judicial appeal, nor does it extend to those agencies which are regulating utilites owned or operated by the same Governmental entity which 34a has established the regulatory body. (Emphasis added.) This Court simply cannot agree with the PUC’s finding that the United States failed to follow the requirements of S5-103.2. This subsection states that the United States is deferring to “the appropriate regulatory body” concern- ing “accounting practices, allowability of costs pricing and rates.” The subsection goes no further. The next subsection which the PUC found had been violated by the United States is S5-103.3, Cost or Pricing Data. That section provides as follows: $5-103.3 Cost or Pricing Data. Rates or preliminary estimates quoted by utility suppliers for services for which the rates are es- tablished by an effective, independent regulatory body are considered “prices set by law or regula- tion” even if the rate will not be formally es- tablished until after the execution of the con- tract. Accordingly, such utility suppliers are not required under 3-807.3 to submit cost or pricing data for such services prior to the awarding of the contract. On the other hand, rates or prelimi- nary estimates quoted by a utility supplier for ser- vice for which the rates are not established by an effective, independent regulatory body are not considered “prices set by law or regulation” even though the supplier itself may be subject to regula- tion. The provisions of 3-807.3 which relate to the “prices set by law or regulation” exception from the requirement for the submission of cost or pric- ing data shall be applied in accordance with the above guidance; the provisions of 3-807.3 relating to the other exceptions are not affected by this paragraph. This regulation does not address the issue of determining whether there is more than one prospective supplier. The last regulatory provision which the PUC found that the United States has violated and about which con- troversy has existed in this case is S5-104 Competitive 35a Procurement of Utility Services. S5-104 Competitive Procurement of Utility Services. S5-104.1 Determination as to Existence of Competition. (a) Although in most instances utility service sup- : pliers operate in franchised territory, competition may nevertheless exist — for example, where more than one supplier is franchised for a given loca- tion, or where more than one supplier is able to provide service at a given location but no sup- plier has yet been franchised for that location. Therefore, when the location of a new military in- stallation has been determined and the procurement of utility services is authorized, the contracting ac- - tivity shall determine whether more than one sup- plier can provide the service. Where competition exists, proposals shall be solicited from all poten- tial suppliers. Even where one of the compet- ing potential suppliers has entered into a GSA area contract, proposals shall be solicited to deter- mine definitely which of the suppliers offers more advantageous competing services under the par- ticular circumstances. (b) Similarly, where an ex- isiting installation 1s being served by one supplier, and either another prospective supplier requests an opportunity to furnish the service or the Department concerned becomes aware of another potential sup- plier, the D partment shall determine whether more than one supplier can provide the service. Where competition is found to exist, competitive solicita- tion of proposals shall be initiated at whatever time is considered to be most advantageous to the Government. (Emphasis added.) On its face, this regulation only applies to (a) new military installation or (b) existing military installations that are only served by one supplier. Therefore, the regulation simply does not apply to the case at bar. This Court cannot find in these regulations the “clear congressional mandate” for the state of South Dakota to regulate the United States’ acquisition of utility services on military bases. Absent such a clear congressional man- 36a date, this Court cannot conclude that it was Congress’ in- tention that the United States be forced to contract with the electric utility specified by the PUC. The conflict be- tween the PUC’s attempt to designate the supplier from whom the United States must obtain service and the Federal Government’s policy of competition is apparent. After the initial briefing had been concluded in this case, a subsequent round of briefing was prompted by the addition to the Air Force Federal Acquisition Regulation Supplement (AFFARS) which provides as follows: 8.304-91 Competition The contracting officer shall determine by market survey if more than one supplier can furnish needed public utility services for proposed procure- ments prior to using other than competitive pro- cedures. The existence of franchised service ter- ritories established by state or local governmental entities does not in and of itself restrict acquisi- tion of public utility services to a sole source. The contracting officer need not enter into a contract with the state or locally franchised public utility supplier simply because the supplier has obtained the local franchise. The contracting officer should instead seek to competitively acquire public utility services whenever possible. There has been controversy concerning the federal govern- ment’s observance of the necessary prerequisites for the passage of this regulation. Even if the federal government has not observed all the necessary prerequisites for the passage of this regulation, which appears unlikely to this Court, the Court concludes that such a regulation could ultimately be enacted. Although this regulation would not apply retroactively to a contract negotiated in the fall of 1984, it would appear to remove any and all possible doubt that the government would be free to negotiate with whom it wants, as it did with Heartland in the instant case, in the future. As the Plaintiff in CIV 85-5031 has not sought any money damages for damages arising from the October 1984 “eT Sect Me ibe e i car Ail lle Sis aie ea Bak BS Sots: 2 te eet Oe 37a to October 1985 contract the federal government executed with Heartland, the regulation would seem essentially to moot BHP&L’s lawsuit. The PUC and BHP&L have argued that even if this Court should find that the PUC cannot regulate the United States (which the PUC avers that it is not attempt- ing to do), this Court should declare the contract be- tween Heartland and the United States void because it is Heartland which the PUC is regulating, not the United States. If this argument were to prevail, it is difficult to im- agine a case where the state could not regulate indirectly (by reguiating the distributor or supplier) what, under the Supremacy Clause, it is not permitted to regulate directly (that is, the Federal Government). In Paul v. United States, supra, (which was decided after Penn Dairies, Inc. v. Milk Control Comm. of Pennsylvania, 318 U.S. 261, 63 S.Ct. 617, 87 L.Ed 748 (1943)) reference is made to the California Director of Agriculture’s attempts to stop dis- tributors from selling milk to the federal military installa- tions at prices below the California established minimum prices. The Director of Agriculture did not bring any action against the United States but, instead, sought recourse against the distributors. As the United States Supreme court observed: ... While the federal procurement policy demands competition, the California policy, as respects milk, effectively eliminates competition. The California policy defeats the command to federal officers to procure supplies at the lowest cost to the United States by having a state officer fix the price on the basis of factors not specified in the federal law. Moreover, when the supply contract is negotiated because “it is impracticable to obtain competition,” to use the statutory words, it is the state agency, not the federal procurement officer and the seller, that determines the price provi- sions of the contract, if state policy prevails. The collision between the federal policy of negotiated prices and the state policy of regulated prices is as 38a re nia cocci eal clear and acute here as was the conflict between federal negotiated rates and state regulated rates in Public Utilities Comm. of State of California v. United States, supra ... at 253. For these reasons, the Court declines the invitation to declare the contract between Heartland and the United States void. Somewhat similarly, it has been argued by the Plaintiff that the allowance of the contract between Heartland and the United States would afford Heartland more power than has been granted to it by the State of South Dakota. It is urged that such a result contravenes the Tenth Amendment to the United States Constitution. This Court agrees with the federal defendants’ response to this particular argument. Additionally, this Court concludes that the PUC lacks jurisdiction over EAFB because it is an exclusive federal enclave. See Article I, section 8, clause 17 of the United States Constitution and SDCL 1-1-1. In construing the relevant portion of the United States Constitution, the United States Supreme Court has observed that “[tJhe cases make clear that the grant of ‘exclusive’ legislative power to Congress over enclaves that meet the require- ments of Art. 1, §8, cl. 17, by its own weight, bars state regulation without specific congressional action.” Paul v. United States, supra, at 263. Furthermore, even if this Court did not find the Paul decision determinative on this issue, the Court would non- etheless refuse to declare the contract void. SDCL 49-34A- 42 Electric Utility’s exclusive rights in assigned service area -- Connecting facilities in another area is the statute un- der which the PUC concluded that BHP&L has the right to provide service at Ellsworth. That statute provides, in pertinent part, as follows: Each electric utility shall have the exclusive right to provide electric service at retail at each and every location where it is serving a customer as 39a of March 21, 1975.... (Emphasis added.) A customer is defined at SDCL 49-34A-1(3) as “... any person contracting for or purchasing gas or eletric service from a utility.” The definition of person is: “,..€a natural person, a partnership, a private cor- poration, a public corporation, a municipality, an association, a cooperative whether incorporated or not, a joint stock association, a business trust, any political subdivision or agency, or two or more per- sons having joint or common interest.” SDCL 49- 34A-1(11). BHP&L has argued strenuously for the proposition that the United States is a person within the meaning of this statute. The Court finds the argument and reasoning, although detailed and thorough, unpersuasive. SDCL 2- 14-1, Words used in ordinary sense mandates what words used in the South Dakota statutes should be given their or- dinary meanings. The ordinary meaning of the word per- son does not include the United States. Elsewhere in the statutes pertaining to the regulation of electric utilities, the United States was specifically mentioned (in addition to “person”). The Supreme Court of Mexico declined to in- clude the United States in the definition of “person” within the meaning of their Public Utilities Act. Southern Union Gas Co. v. New Mexico Pub. Ser. Comm’n, 482 P.2d 913 (N. M. 1971). For the reasons set forth in this Memorandum Opinion, BHP&L’s motions for a preliminary injunction and for summary judgment in CIV 85-5031 will be denied. The Federal Government’s motion to dismiss in CIV 85- 5031 will be granted. CIV 85-3015 and CIV 85-5064 are rendered moot by this decision. The only matter which now remains for this Court’s resolution is intervenor BHP&L’s motion to dismiss in CIV 85-5064. The Court believes that CIV 85-5064 raises issues which were put before this Court in the other actions. As a 40a consequence, the action is unnecessary. BHP&L’s motion to dismiss will be granted. Dated this 16th day of October, 1985. BY THE COURT ANDREW W. BoGUE ANDREW W. BOGUE SENIOR JUDGE cisi> BETIS an a tsetieet 4la BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF SOUTH DAKOTA IN THE MATTER OF THE COMPLAINT OF BLACK HILLS POWER AND LIGHT COMPANY AGAINST HEART- ‘ilieaiinii LAND CONSUMERS POWER > = AND ORDER DISTRICT WITH REGARD (F - 3513) TO ELECTRIC SERVICE TO ELLSWORTH AIR FORCE BASE. } On the 29th day of November, 1984, Black Hills Power and Light Company (“Black Hills”) filed a complaint against Heartland Consumer Power District (“Heartland”) with regard to Heartland delivering electric service to the United States for use at its Department of Defense instal- lation, Ellsworth Air Force Base, a military establishment located in Meade and Pennington Counties, South Dakota. Black Hills requested that Heartland be enjoined from delivering electric service to the United States at Ellsworth Air Force Base and that the Commission determine that Black Hills is entitled to be the sole supplier of electric service to Ellsworth Air Force Base, except for that electric service furnished by the United States. Heartland filed with this Commission an answer to the complaint request- ing the Commission to dismiss the complaint claiming that the Commission does not have jurisdiction over the subject matter of the proceeding and that Heartland was within its jurisdictional rights in delivering electric service to Ellsworth Air Force Base in that it was a sale at wholesale and not resale and that Black Hills is estopped from claim- ing it is the sole supplier because it submitted a proposal to Ellsworth to deliver electric service. On the 29th day on November, 1984, the Commission a a ee 42a issued an order for and notice of hearing with Black Hills’ complaint attached, and caused the order for and notice of hearing to be delivered to Black Hills, Heartland, Ellsworth and West River Electric Association (“West River”). The Commission further ordered that Black Hills, Heartland, Ellsworth and West River are parties to the proceeding without the necessity of formal intervention. The Commission issued an amended order for and notice of hearing on December 10, 1984, and caused it to be delivered to all parties to the proceedings. In the amended order, the Commission found that it has jurisdiction over the proceedings pursuant to SDCL 49-34A generally, in SDCL 49-34A-4, 26, 27, 39, 42, 43, 44 and 59, specifically. The Commission held a hearing on December 14 and 17, 1984 at Pierre, South Dakota, and on January 4, 1985 at Ellsworth Air Force Base, South Dakota. Black Hills, Heartland and the United States through Ellsworth directly participated in the proceedings and submitted evidence and argument in support of their positions. West River did not participate in the proceedings, but West River was personally present at the hearing held at Ellsworth Air Force Base, South Dakota. West River filed a letter with the Commission after the evidentiary hearing was closed stating West’s River’s position. At the commencement of the hearing, Ellsworth orally made a motion for the Commission to dismiss the com- plaint on the grounds that the Commission lacks juris- diction and the complaint failed to state a claim upon which relief may be granted. The specific grounds of Ellsworth’s motion to dismiss were that the State of South Dakota has ceded jurisdiction of Ellsworth Air Force Base to the United States in accordance with SDCL 1 —1 et seq., that the Commission has no jurisdiction because of federal supremacy, that the State cannot interfere with federal procurement policy, federal procurement policies were fol- lowed and required competitive procurement, that Black Hills lacks standing to raise the complaint under South 9 tah tant TEL Na 43a Dakota law because it was not an affected utility, and that the Commission has no jurisdiction over Heartland under State law and that Heartland was under a duty to deliver electric service to Ellsworth Air Force Base. Heartland orally moved that the Commission dismiss the complaint because it had no jurisdiction over the matter in hear- ing, that Ellsworth Air Force Base has been ceded to the exclusive jurisdiction of the United States, and that the Commission has no jurisdiction over Heartland. Heartland later in the proceeding moved to dismiss the complaint on the grounds that the United States was not a party or cus- tomer under SDCL 49-34A-34. The Commission reserved rulings on the motions and received the evidence of all parties. On January 4, 1985, all members of the Public Utilities Commission personally inspected Ellsworth Air Force Base and observed the structures and use of electric service being made on each side of the territorial boundary between Black Hills and West River. The parties simul- taneously filed briefs in this matter on January 25, 1985. The Commission has carefully reviewed the record, the evidence, testimony and the briefs. From the review of all such evidence, arguments and inspection, the Commission makes the following findings of fact and conclusions of law. FINDINGS OF FACT 1. Black Hills. Black Hills Power and Light Company (“Black Hills”) is an investor — owned electric utility en- gaged in the generation, transmission, distribution and sale of electric power and energy to the Black Hills area of South Dakota in addition to service in the States of Wyoming and Montana. 2. Heartland. Heartland Consumers Power District (“Heartland”) is a public corporation and political subdivi- sion of the State of South Dakota, formed as a consumers power district under the provisions of SDCL ch. 49-35. The | 44a governmental district boundaries of Heartland are totally contained within an area east of the Missouri River in the State of South Dakota, and the nearest boundary thereof is approximately 200 miles from Ellsworth Air Force Base. The exact boundaries are shown by Black Hills’ Exhibit 10 which is made a part hereof by express reference. 3. West River. West River Electric Association (“West River”) is a rural electric cooperative and a public utility which renders electric service to customers in an area lo- cated adjacent to and east of the service territory of Black Hills. 4. Ellsworth. Ellsworth Air Force Base is a military installation operated by the Department of Defense of the United States located in parts of Meade and Pennington Counties, South Dakota, east of Rapid City, South Daktoa. The term “Ellsworth” when used herein shall refer to the United States Government, a party to this proceeding. 5. Base. Ellsworth Air Force Base (“Base”) for the purpose of this hearing shall be deemed to be that con- tiguous territory being operated by Ellsworth as a defense military establishment. That contiguous territory is shown by various maps admitted into evidence herein. Those maps which show the contiguous territory constituting the Base, all of which are made a part hereof, include Black Hills’ Exhibits 3 and 12. The Commission finds that the Renel Heights housing area, the Skyway housing area, and the Capehart 190 and Capehart 500 housing area are all deemed to be a part of the Base. The four Nike sites located a few miles north, south, east and west of the Base are not contiguous and are not deemed to be a part of the Base for the purposes herein. 6. Base areas ceded to United States. That part of the Base the jurisdiction of which was ceded to the United States pursuant to SDCL 1-1-1 et seg. is colored red, green and blue on the map attached to Black Hills’ Exhibit 15F except for that parcel on which is written “no Juris” Ge Te 45a and the parcel which has a circled 61 thereon in Section 2, Township 2, Range 8, colored green. Those areas of the Base on the map attached to Black Hills’ Exhibit 15F which are not colored were not ceded to the United States but remain under the jurisdiction of South Dakota. 7. Assigned Service Areas. The area occupied by the Base was assigned as service area pursuant to SDCL 49- 34A-43 and 49-34A-44 to Black Hills and West River. That area of the Base assigned as the service area of Black Hills is all of that area south of the line and designated as Black Hills’ Exhibit 3. The dividing line between the two service areas is the east—west quarter section lines of Section 7 and the west half of Section 8 of Township 2 North, Range 9 East and Section 12 of Township 2 North, Range 8 East, all in Meade County, South Dakota. See Black Hills’ Exhibit 15F. 8. Electric Service to Base on March 21, 1975. On March 21, 1975, electric service to the Base was be- ing furnished by the Western Area Power Administration (“WAPA”) and Black Hills, and WAPA and Black Hills have continued to provide all of the electric service to the Base from March 21, 1975 to this date, excluding the recent contested Heartland deliveries. 9. Electric Service to Base at the Time This Action Arose. Electric service to the Base at the time this action arose was furnished by two suppliers, WAPA and Black Hills. The Black Hills deliveries were made and are con- tinuing to be made through its substation located in the Renel Heights housing area of the Base and the WAPA deliveries were made and are continuing to be made at a WAPA substation located at the north part of the Base. 10. Ellsworth’s Need for Additional Electric Service. Ellsworth has been obtaining electric service from WAPA at a demand which has reached approximately 2,000 kilowatts in excess of the demand allowed and al- located by WAPA for Ellsworth. See Black Hills’ Exh [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2217%3A1. Public record. Not legal advice.