This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Northern States Power Company,

d/b/a Xcel Energy,





Minnesota Department of Transportation,



Filed April 16, 2002

Appeal dismissed; motion denied
Klaphake, Judge


Department of Transportation

File No. HLRTUL0153


Timothy R. Thornton, Thomas J. Basting, Jr., Briggs and Morgan, P.A., 2400 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for relator)


Mike Hatch, Attorney General, Donald J. Mueting, Ann K. Bloodhart, Assistant Attorneys General, 525 Park Street, Suite 200, St. Paul, MN  55103 (for respondent)


            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            In this certiorari appeal, relator Northern States Power Company (NSP) challenges the authority of respondent Minnesota Department of Transportation (MnDOT) to issue a permit for utility relocation as part of the light rail transit (LRT) project in Hennepin County.  NSP also argues that the permit requirement that its utilities be relocated to a depth of 66 inches is an arbitrary and capricious exercise of power, having no factual basis in the record.  Because the federal court has exercised supplemental jurisdiction over state law claims arising out of NSP’s utility relocation for LRT, including the commissioner’s authority to order relocation, we decline to consider the permit issue.  Further, because the utility relocation in question was completed before oral argument in this matter, we conclude that NSP’s challenge to the depth of the utility lines is moot.  We therefore dismiss this appeal.


I.  Permit Authority

            On November 13, 2001, this court issued a special term order limiting this appeal to the sole issue of whether the permit requirement that utilities be laid at a depth of 66 inches is arbitrary and capricious or without support in the record.  Nevertheless, NSP continues to challenge MnDOT’s permitting authority.  In addition, both NSP and MnDOT are currently in federal district court on a comprehensive suit involving relocation of the same utility lines.  The federal court has accepted supplemental jurisdiction over all state law claims raised in the suit, including the question of the extent of the commissioner’s authority in matters involving the LRT project.  N. States Power Co. v. Fed. Transit Admin., 2001 WL 1618532 (D. Minn. May 24, 2001) (memo. op.), aff’d, 270 F.3d 586 (8th Cir. Nov. 2, 2001).

            Supplemental jursidiction is available where claims not strictly federal in nature are so related to the underlying federal cause of action that they form part of the “same case or controversy.”  28 U.S.C. § 1367(a) (1994).  It is exercised when the federal court recognizes  

state law claims which arise from the same common nucleus of operative fact as that of a substantial federal claim and which, if considered without regard to their federal or state character, * * * are such that [plaintiffs] would ordinarily be expected to try them all in one judicial proceeding.


Alumax Mill Prods., Inc. v. Congress Fin. Corp., 912 F.2d 996, 1005 (8th Cir. 1990) (quotation omitted).  The purpose of exercising this pendent or supplemental jurisdiction is to “promote judicial economy and fairness.”  Ryther v. KARE 11, 976 F. Supp. 853, 856 (D. Minn. 1997).  Thus an issue that has been accepted by the federal court for decision is not subject to trial in state court.

            NSP attempts to distinguish the question before the federal court as involving the authority to order utility relocation for LRT while asserting that the challenge raised in this court is to the process by which relocation authority was exercised, rather than the authority itself.  MnDOT’s authority over LRT facilities is broad.  The statutory provision empowers the commissioner to “exercise the powers granted in [Minn. Stat. Ch. 174 (2000)] and chapter 473, as necessary, to plan, design, acquire, construct, and equip light rail facilities in the metropolitan area * * *.”  Minn. Stat. § 174.35 (2000).  Because the federal court has agreed to review this grant of authority, it is only logical that the question of the extent of the commissioner’s authority will include the means by which that authority is exercised.

            We therefore conclude that the permitting issue is a necessary part of the state law claims accepted by the federal court and that this issue is not properly before us.

II.  Permit Condition

            NSP challenges the permit requirement that new ductwork be placed at a depth of 66 inches unless waived by MnDOT.  NSP asserts that this permit condition is arbitrary and capricious and without factual basis in the agency record.  However, as NSP conceded at oral arguments, the work covered by this permit condition was completed prior to the hearing before this court. 

            The doctrine of mootness requires that a court decide only actual controversies; where effective relief cannot be granted, an issue is deemed to be moot.  In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989).  A decision by this court on the permit condition would not grant the relief sought by either party because, presumably, the relocated utility lines have been laid and are in the ground to stay.

            NSP argues that this matter fits within the narrow exception to the mootness rule: where an issue is capable of repetition, yet evades review, the court can decide an otherwise moot question.  In re McCaskill, 603 N.W.2d 326, 328 (Minn. 1999).  Thus, where an issue is generally resolved in an expedited way that makes it difficult to challenge, the court will nevertheless hear the matter, particularly when the application is broad and could affect the rights of others.  Schmidt, 443 N.W.2d at 826; Everest Dev., Ltd. v. City of Roseville, 566 N.W.2d 341, 344 (Minn. App. 1997).  NSP asserts that this issue will arise again whenever LRT is expanded and should therefore be addressed by this court.

            The fact of repetition alone is not sufficient to trigger this exception to the doctrine of mootness.  McCaskill, 603 N.W.2d at 328.  An issue that is heavily fact specific, even if likely to be repeated, is an unlikely candidate for waiver of the mootness doctrine.  Id. (narrow issue of sufficiency of evidence in particular commitment will not arise again and thus is moot).  We decline to speculate on whether a 66-inch depth requirement in a future expansion of LRT will have or lack a factual basis.  Nor do we believe that this issue evades review.  The timing in this particular set of circumstances may have effectively prevented review, but this timing is largely the consequence of the interplay of the federal court suit, the preliminary injunction, the construction timetable, and NSP’s last-minute appeal to this court.

            Given our decision dismissing this appeal, we also deny NSP’s motion to strike the affidavit of Vicki Barron.

            Appeal dismissed; motion to strike denied.