6. Discussion
6.1. Motion to Dismiss
Roseville Land moved to dismiss this complaint on both procedural and substantive grounds. As set forth below, we find that the procedural requirements for this proceeding are largely determined by § 625, and that the Commission and parties have complied with those requirements. The most significant substantive issue raised in the Motion to Dismiss - that the current pipeline is not located within the actual boundaries of the easement previously granted to Wild Goose - has been resolved by a Butte County Superior Court order correcting an error in the legal description of the original easement.2 We, therefore, conclude that the motion to dismiss should be denied.
Procedurally, Roseville Land argued that the complaint initiating this proceeding should have been a petition, and that the Commission has no jurisdiction to instruct non-public utility landowners to answer a complaint. Roseville Land contended that complaints are to be directed to public utilities pursuant to § 1702, not private landowners over which the Commission has no jurisdiction.
In § 625, however, the Legislature left to the Commission the determination of the filing to be used to initiate the proceeding necessary to make the needed determinations. Specifically, § 625(a)(1)(A) states that the Commission must find that the proposed condemnation would be in the public interest "pursuant to a petition or complaint filed by the public utility." (Emphasis added.) In the Commission's manual3 for property owners, utilities, and the public regarding these eminent domain proceedings, the public utilities are directed to use a complaint. This type of filing is within the terms of the statute and is fully consistent with the Legislative directive that the Commission conduct an "adjudication hearing" to make the determinations.
Roseville Land next argues that the complaint should have been personally served on it because § 625 requires "personal notice" to the property owners of the property to be condemned. Roseville Land contends that Wild Goose's use of first class mail to effectuate service violates this requirement. Rule 1.9 of the Commission's Rules of Practice and Procedure provides for three different means of serving a document, including first class mail. Wild Goose complied with the Commission's rule for service of a document. Roseville Land received actual and timely notice of the proceeding.
Roseville Land also raised the issue of necessity in its motion, contending that the Commission authorized Wild Goose's pipeline expansion in 2002 and that Wild Goose has not moved forward with construction, thus dispelling any argument of "necessity." Wild Goose explained that it has expanded its storage facilities as authorized by the 2002 decision and that the additional areas it proposes to condemn are needed to complete the pipeline portion of the authorized expansion.
As discussed in more detail below, we find that the additional property Wild Goose proposes to condemn is necessary for Wild Goose's gas storage and pipeline project.
Roseville Land's other issues with the expedited schedule for this proceeding are essentially objections to the procedural requirements of § 625, which we are not authorized to revise.
We, therefore, conclude that Roseville Land's motion to dismiss should be denied.
6.2. The Proposed Condemnation is Subject to the Public Interest Test in § 625
The Commission is charged under § 625(a)(1(A) with determining if a utility may condemn property for the purpose of competing with another entity:
For the purpose of this article, except as specified in paragraph (4), a public utility that offers competitive services may not condemn any property for the purpose of competing with another entity in the offering of those competitive services, unless the commission finds that such an action would serve the public interest.
We next analyze the four statutory standards in relation to the evidence presented.4 We analyze the standards in the following order:
· Whether the property to be condemned is necessary for the proposed project;
· Whether the public benefit of acquiring the property by eminent domain outweighs the hardship to the owners of the property;
· Whether the proposed project is located in a manner most compatible with the greatest public good and least private injury; and
· Whether the public interest and necessity require the proposed project.
6.3. The Property to be Condemned is Necessary for the Proposed Project
Wild Goose's witnesses explained that the strips of property proposed to be condemned are the only feasible means to complete the pipeline loop, as previously authorized by the Commission. Other than to take issue with the Commission's authorization of the pipeline loop, Roseville Land has not credibly challenged the need for these particular strips of property.
We, therefore, conclude that the property to be condemned is necessary for the proposed pipeline loop portion of the expansion project.
6.4. The Public Benefit of Acquiring the Property by Eminent Domain Outweighs the Hardship to the Owners of the Property
The Commission has previously determined that additional independent natural gas storage capacity will benefit the public by increasing reliability and exerting downward pressure on natural gas prices. See D.02-07-036, at Findings of Fact 3 and 4.
Roseville Land stated that the pipeline is not far from its clubhouse and bunking cottages, and that the project and its vehicles have disrupted the serenity of farm and wildlife habitat. Roseville Land offered no evidence of hardships from the proposed condemnation that were in addition to the initial condemnation or uniquely caused by the loop pipeline. Roseville Land argued that the additional pipeline would impose additional risks. Those risks, however, were previously considered by this Commission in the expansion decision, with the Commission determining that the expansion project should go forward.
The public benefits were set out in the 2002 decision, are re-stated below in Section 6.6, and are significant. We have previously determined that these benefits outweigh the disruption of farm life imposed on landowners. We conclude, therefore, that the public benefit of Wild Goose's proposed condemnation outweighs the private harm.
6.5. The Proposed Project is Located in a Manner Most Compatible with the Greatest Public Good and Least Private Injury
The proposed condemnation is located adjacent to the existing pipeline easement and is part of the expansion project approved by the Commission. Roseville Land offered no contradictory evidence. The amount of land to be taken is minimal. We, therefore, conclude that the proposed condemnation is most compatible with the greatest public good and least private injury.
6.6. The Public Interest and Necessity Requires the Proposed Project
In D.02-07-036, the Commission granted Wild Goose's request to amend its CPCN to allow for the expansion of Wild Goose's Butte County natural gas storage and pipeline facility. The Commission found that the following factors supported granting the request:
1. demonstrated customer interest in additional gas storage facilities;
2. increased demand for natural gas from electrical generators;
3. downward pressure on natural gas prices; and
4. increased availability during times of high demand.
Wild Goose testified that these factors remain valid today. In its brief, Roseville Land argued that due to the passage of time, the Commission's 2002 rationale and Wild Goose's presentation in support of that application have become "stale" and no longer valid. Roseville Land offered no evidentiary support for its assertion, other than the passage of time.
In its testimony, Wild Goose contended that during the intervening years, natural gas consumption has increased. There has been no showing that the passage of time has decreased the need and, therefore, we conclude that the public interest and necessity require the proposed condemnation.
6.7. The Proposed Project Has Been Reviewed Under the California Environmental Quality Act
CEQA (Public Resources Code Section 21000 et seq.) applies to discretionary projects to be carried out or approved by public agencies, and requires the Commission to consider the environmental consequences of its discretionary decisions, such as § 625 findings of public interest. A basic purpose of CEQA is to "inform governmental decision-makers and the public about the potential significant environmental effects of the proposed activities." (Title 14 of the California Code of Regulations, hereinafter CEQA Guidelines Section 15002.)
Here, Wild Goose included the bi-directional storage loop pipeline in the project evaluated by the Commission in Application 01-06-029. The Commission certified the Environmental Impact Report on this project in D.02-07-036.
Roseville Land argued that the Environmental Impact Report did not consider the impacts of directional boring underneath an existing pipeline. Wild Goose testified and referenced supporting documentation showing that these impacts were evaluated in the Report.
The record shows that the Commission specifically considered a bi-directional storage loop pipeline in the environmental review leading up to the 2002 decision. Wild Goose's witness persuasively testified that this review included the environmental impacts of directional boring in close proximity to an existing pipeline and that those impacts would not be substantially different should the directional boring pass under the existing pipeline. Roseville Land offered no contradictory evidence.
We, therefore, find that the proposed project including the loop pipeline environmental impacts has been previously reviewed by this Commission and that no further CEQA review is required.
6.8. Appeal of the Presiding Officer's Decision
In its appeal, Roseville Land argues that this proceeding should have been initiated with a petition, not a complaint, and that personal service was required. As set out above, § 625 allows for the complaint form of action and the Commission's Rules of Practice and Procedure provide for service by mail.
Roseville Land also challenges the Commission's practice of using prepared written testimony with cross-examination before the Presiding Officer as denying Roseville Land due process. These are standard Commission procedures designed to enhance discovery and cross-examination by requiring direct testimony ahead of the hearing. These procedures did not deny Roseville Land its due process rights. See D.08-06-021.
Roseville Land next contends that Wild Goose abandoned similar condemnation efforts in 2004 and is therefore barred by California law from pursuing this condemnation. Wild Goose countered that its 2004 abandonment without prejudice did not bar its proposed condemnation under California law and is no basis for dismissing this proceeding.
The legal effect, if any, of the 2004 abandonment is not within the findings required under § 625. We will, therefore, leave this question for the Superior Court in the ensuing condemnation proceeding.
Roseville Land next reiterated its challenge to the 2002 decision finding that the pipeline expansion would serve the public interest and was necessary. Roseville Land offered no new basis for disturbing our 2002 findings and we will not.
Roseville Land also restated its objections to relying on the 2002 Environmental Impact Report. These objections are resolved above.
We conclude that the appeal presented no basis for substantive alteration of the Presiding Officer's Decision, and we make no such alterations.
2 Pursuant to Rule 13.10 of the Commission's Rules of Practice and Procedure, we take official notice of the court's May 9, 2008, order and direct that the copy provided by Wild Goose's counsel be placed in the official record for this proceeding.
3 Information for Property Owners, Utilities, and the Public Regarding Senate Bill 177.
4 These standards are set forth in § 625(b)(2)(A) - (D). Section 625(b)(1) sets forth an alternative condition for showing "public interest," namely, that the proposed project would provide service to an unserved area.
