Power struggle

TRACY KALYTIAK AND BOB MARTINSON/Frontiersman staff

PALMER - A battle that began brewing last year over Matanuska Electric Association's plan to erect a power-transmission line across the Mat-Su Borough's central landfill and Crevasse-Moraine properties has exploded in a fusillade of court filings.

MEA insists that state statutes allow the electricity co-op to use section lines when building or maintaining its facilities, and trump the borough's denial of utility-permit applications for MEA's planned 115-kilovolt power line.

That line would link two existing primary lines and provide backup electricity for the new Mat-Su Regional Medical Center, which is scheduled to open in January 2006.

The borough argues that MEA does not have the right to send chain-saw crews or anyone else onto borough property without its permission.

The co-op's failure to comply with a code provision requiring public comment made it impossible to grant or deny MEA's application within the code-required 20 days.

Public notice for MEA's project was especially critical, borough officials believe, since MEA's favored route for the power lines would cross the middle of its central landfill - in which $3.2 million has been invested - and affect its heavily used Crevasse-Moraine trail system.

MEA claims that the borough's objection to MEA's applications means nothing because borough officials neglected to express their opposition until after response deadlines - which are set in borough code - had passed.

What's the ruckus about?

The co-op wants to run its double-circuit line on 90-foot towers from the north boundary of the landfill property, south to a section line and then west along that section line, crossing 1.75 miles of borough property.

The power line ultimately would connect a line running along a portion of the Palmer-Wasilla Highway to a line near the intersection of Trunk Road and the Parks Highway.

Running the line along section-line easements would be the least-costly route, MEA claims, because state law grants utility companies rights to those easements.

Delays in getting the project going, MEA officials say, could leave the hospital without a backup power supply and result in power outages and voltage irregularities in the Trunk Road/Parks Highway area.

Borough officials say they don't understand the hurry, since, to the best of their knowledge, MEA has not completed engineering and design work for the transmission line and the hospital has electric power and on-site backup power.

They want MEA to slow down and consider other routes that would have less of a destructive impact on the landfill and Crevasse-Moraine areas.

"Our position is that MEA didn't provide any public notice and we did, therefore, we went beyond the 20 days to answer the request, to provide time for the public comments," Borough Manager John Duffy said Wednesday.

"Something as major as this large power supply line, it's a pretty large undertaking and people should have the public notice and the say on where it

is located."

A percolating feud

The roots of the skirmish developed last year, when MEA filed utility-permit applications with the borough that, if granted, would have allowed the company access to section-line easements on borough property.

MEA filed one application, for a 100-foot-wide easement, on Feb. 5, 2004. MEA claims the borough didn't grant, deny or otherwise mention anything about additional requirements within 30 days, as required by borough code.

On Aug. 11, MEA says, the borough orally notified the co-op that the Feb. 5 application would be denied because it violated code requirements. MEA then filed a utility-permit application with the borough on Aug. 12.

Borough officials say they denied the electricity co-op's Aug. 12 application because MEA had not, as required by borough code, issued a public notice about the project.

"While the MSB did not reply within 20 days of MEA's application, the MSB believes it very important to notify property owners (in this case borough residents) of the proposed activity as that is also a requirement of our code," Don Shiesl, borough public works director, stated in an Oct. 26 letter to MEA's general manager, Wayne Carmony. "The need to provide the public with an adequate amount of time to comment made the 20-day stipulation impossible to meet."

Public notice for MEA's project was issued Sept. 1 and closed Oct. 6. Trail users and residents of adjacent areas objected to MEA's plan, saying they didn't want the transmission line placed in that area.

After the public-comment period, the Assembly passed a resolution objecting to MEA's intended route, and urged the borough, MEA and the University of Alaska - which also owns property affected by the project - to work out a better location. The borough had another route in mind, which Shiesl mentioned in his letter to Carmony.

"The parties did meet on October 25th and identified possible alternatives to explore and this will be followed up with a further meeting on November 2nd, with [the Alaska Department of Transportation and Public Facilities] to further the possibilities of placing at least part of the utility line either within or immediately adjacent to the new Trunk Road alignment," Shiesl's letter stated.

The Trunk Road route, if eventually adopted, would extend along the eastern edge of the property on which the landfill is situated, skim the top of university land and, where that land meets with a proposed realignment of Trunk Road, follow that road, veering slightly eastward after Mat-Su College to follow the existing Trunk Road to the hospital site.

Shiesl, in his letter, told Carmony that MEA's favored route crosses university property in areas where the two entities have disputes over the existence of section-line easements.

"The outcome of that disagreement could take significant time to resolve," Shiesl stated. "Based on known public concern over the proposed location of the MEA utility line, the established use within this area by the public and the question over whether legal access exists across the University land, your application is denied."

Shiesl went on to tell Carmony that his decision to deny MEA's application could be appealed to the borough manager within 10 borough business days of written notice of the denial. According to borough code, the borough manager's decision "shall be final."

At a meeting in November, DOTPF officials indicated right-of-way acquisition would not begin until early or mid 2005. Judy Dougherty, DOT's Trunk Road project manager, told the Frontiersman in November that something closer to the middle of the year would be more likely.

"MEA wants to do the work sooner, but the borough believes they can wait," Dougherty said, in November.

Also in November, MEA spokesman Tuckerman Babcock told the Frontiersman that the co-op planned to have the transmission line built and in place by the time the hospital was set to open - tentatively by January 2006.

Babcock, in November, said the co-op had to leave enough construction time to allow for delays along the way and that MEA wanted the university and the borough to find an alternative route to the Trunk Road route as soon as possible - by sometime in December - or MEA would begin clearing land along the easements as planned.

On Jan. 4, the borough Assembly postponed until March 1 its choice of a power-line route.

Getting ready to rumble

On Jan. 6, MEA's engineering and operations manager, Robert Drake, fired what the borough took to be the first salvo in its legal clash with MEA, in a letter he wrote to Shiesl.

In that letter, Drake told Shiesl that MEA would begin clearing the easements through borough property beginning the following day.

There was a small matter that had to be addressed first, however.

"The Borough has emplaced unauthorized obstructions across the section line easement within the developed portion of the Borough's Central Landfill," the letter stated. "Specifically, these obstructions include the entrance gate, scalehouse, and drop-off structures. These encroachments block access by MEA to our section line easements and MEA can require the Borough to remove these obstructions, if removal is required for our reasonable use of the section line easements."

Drake went on to say that MEA would not remove the structures if the borough made available to MEA the use of the existing roadway system within the landfill and outside the section-line easement.

In his letter, Drake said he had learned the borough might be drawing up a request for a restraining order.

"MEA will incur additional damages in the form of contractual mobilization and de-mobilization costs if Borough actions result in delay to our contractor once he has mobilized to the Central Landfill," Drake's Jan. 6 letter stated. "MEA hereby notifies you that these additional costs will be included in the damages that we will seek recovery of from the Borough if they are incurred."

Calling in - and calling off - the crews

The borough was, indeed, readying a request for a temporary restraining order, which it filed Jan. 7 upon learning that MEA-contracted crews with chain saws were arriving to clear brush and trees for the power-line project.

The borough wanted a judge to sign an order prohibiting MEA employees or contractors from entering borough property, including the landfill, for the purpose of clearing the section-line easements.

"The Defendant Matanuska-Electric Association, Inc. has stated in writing that it intends to illegally enter Borough property on or before January 8, 2005 and to commence clearing all vegetation [in] the section line," the request stated. "The Borough has been notified that equipment is on site as of 9 a.m. January 7, 2005. This would create irreparable harm."

Ron Swanson, the borough's community development director, submitted an affidavit that accompanied the restraining-order request.

"The Crevasse Moraine Trail System represents a long-term effort and expenditure of public funds to provide residents of the Borough a high-quality access to the out-of-doors," Swanson stated in the affidavit.

"It is the most popular non-motorized outdoor trail system in the Borough. It interconnects with the Kepler Bradley State Trail system and the University of Alaska. It is the only extensive public trail system in the Core Area. MEA's proposed transmission line would have a significant negative impact on the trail system and would threaten the ability of the Borough to maintain it as a non-motorized use."

Swanson also said the transmission line would traverse the actively used section of the landfill "and severely compromise use of the facility and potentially threaten the integrity of the landfill."

"To the best of my knowledge," Swanson continued in his affidavit, "MEA has not completed the engineering and design for this transmission line. Thus it is not possible for the Borough to fully assess the impacts of the transmission line and to issue a construction permit which would safeguard the public lands and the Borough land fill."

MEA called off its crews, agreeing to allow a judge to decide whether MEA has a legal right to its favored power-line route. Palmer Superior Court Judge Eric Smith then denied the borough's request for the restraining order, since the immediate crisis - as perceived by the borough - had passed.

All that remained was for a judge to address the bigger issue - could MEA legally enter borough property with the purpose of building its power line there without a permit?

What each side wants

MEA asked that a judge other than Smith decide the matter, because Smith is currently presiding over a 2003 case involving the co-op and former board member Mike Janecek. Superior Court Judge Beverly Cutler was then assigned to hear the borough's lawsuit against MEA.

In a complaint the borough filed with its restraining order request, the borough quoted from Drake's Jan. 6 letter - the one that told the borough to expect MEA contractors at the landfill, soon - and said MEA did not have a permit authorizing the clearing of borough property because its application had been denied Oct. 26.

The borough also said MEA did not have written permission from the borough manager authorizing the clearing, as required by code.

The borough wants a judge to enter an order barring MEA crews from borough property, including the Central Landfill, to clear section-line easements. The borough requested a judgment imposing civil penalties of up to $1,000 a day for each day MEA violates borough ordinances that set requirements for permits and use of borough-owned property.

On Jan. 27, MEA filed an answer to the borough's complaint, along with a counterclaim of its own.

In that document, MEA admitted that as of the date of its court filing, it did not have a borough utility permit for the part of its power-line project that would take place on borough property, had never filed an appeal, and had never applied for written permission from the borough manager to clear or use easements "in which MEA has a legal right to install and maintain electric utility infrastructure."

MEA went on to deny the borough's accusation that MEA had threatened, through Drake's Jan. 6 letter, to violate borough ordinances, and denied the borough's claim that it is entitled to keep MEA from clearing on borough property and would be entitled to treble damages if MEA carried out its plans on borough property without a permit.

MEA argued, in those Jan. 27 court documents, that state law authorizes the co-op to construct and maintain its poles, lines and other equipments in section-line easements, and that the borough's code cannot supersede state statute on that issue.

The borough Assembly can petition the Alaska Department of Natural Resources to vacate or relocate a section-line easement, MEA claims, but only upon showing that equal or better access designated in a recorded easement is available and that the Assembly has agreed that the borough is willing to bear additional costs incurred by using the alternative easement.

MEA says the easements involved in its dustup with the borough have not been vacated by DNR and therefore, it is legal for MEA to use them without the permission of the borough.

Getting a utility permit, MEA stated in its court filing, "is a discretionary act by the utility."

MEA contended that it was not informed of the preliminary load requirements for the new hospital until January 2004.

"Electric utility industry standards establish that, whenever economically feasible, adequate and safe service to hospitals includes the provision of facilities capable of serving the hospital's entire load through two independent routes," MEA's filing stated. "This is a safety requirement intended to minimize electric power interruptions [to the] hospital."

MEA's electric distribution system is currently capable of serving the new hospital's projected entire load only through one route, MEA stated, and a new route must be completed by the time the hospital opens in January 2006. Outages and voltage irregularities in the Trunk Road/Parks Highway area could also occur if the power-line project does not go forward quickly, MEA contends.

"The hospital's manager said they need full power by August 2005 for testing the facility," Babcock said Thursday. "We have the ability to provide full power for the hospital, but we want to have full, reliable backup power.

"With the delays that have been foisted upon us, we are not going to be able to meet that timetable," Babcock said.

By denying its permit applications, the borough has unlawfully delayed the project, MEA claims, and should therefore have to pay civil penalties of up to $1,000 per day, plus damages and attorney fees.

MEA wants the court to force the borough to immediately issue the utility permit MEA applied for Aug. 12 and declare the Oct. 26 letter invalid.

MEA's counterclaim states that if the judge does not grant those requests, MEA will conclude that the borough "has through regulatory action taken MEA's private property interests" in the section-line easements in question, and should be compensated for that taking of private property.

MEA says "taking" of borough property and property rights through eminent domain is necessary because the borough didn't respond positively to MEA's attempt to obtain an easement that would serve MEA's purposes.

"If denial of MEA's use of the AS 19.10.010 section line easements is upheld, there are no prudently available easement routes that would serve MEA's electric utility purposes that do not involve taking Borough property and property rights," MEA's filing stated.

MEA contends that its eminent-domain taking of this easement through borough land is part of the compensation the borough owes MEA for taking MEA's private interest in the section-line easements at the landfill.

"Thus, MEA owes the Borough no monetary amount in compensation for this taking," the filing stated.

A hearing on MEA's request for eminent domain is set for Feb. 14. The borough's response was expected Feb. 4, Babcock said Thursday.

"We have the right to have eminent domain over the borough's property. We have the right to not only take private, but we can take borough property, but we have to pay for it," Babcock said. "The borough cannot take away our property right to a state- granted easement."

Duffy disagreed with Babcock's assertion.

"We don't see it as an unfettered right," Duffy said of MEA's right to access section-line easements.

The Assembly will take up the power-lines issue March 1, and Duffy said its members hope to get new information to them by mid-February, so they will have a couple of weeks to study it.