This opinion will be unpublished and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, Relator,


Minnesota Department of Transportation,


Filed September 3, 2002


Stoneburner, Judge


Minnesota Department of Transportation


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


Mike Hatch, Attorney General, Donald J. Mueting, Assistant Attorney General, Ann K. Bloodhart, Assistant Attorney General, Suite 200, 525 Park Street, St. Paul, MN 55103-2106 (for respondent)


            Considered and decided by Stoneburner, Presiding Judge, Toussaint, Chief Judge, and Randall, Judge.

U N P U B L I S H E D  O P I N I O N


            By writ of certiorari, relator Northern States Power Company, d/b/a Xcel Energy (Xcel), requests this court to strike the June 1, 2002 relocation deadline contained in the notice and order issued by respondent Minnesota Department of Transportation (MnDOT), as arbitrary and capricious and unsupported by any record evidence.  The notice and order directs Xcel to complete relocation and adjustment of its utility facilities affected by the light rail transit (LRT)[1] construction in downtown Minneapolis by June 1, 2002.  Because there is no support in the record supporting the completion date set by MnDOT, the date set is arbitrary and capricious, and we grant Xcel’s request to strike the deadline from the Notice and Order.


An agency determination will not be overturned by a reviewing court so long as the determination is not arbitrary and capricious.  See Crookston Cattle Co. v. Minn. Dep’t of Natural Res., 300 N.W.2d 769, 777 (Minn. 1980) (stating that an agency’s findings will only be reversed if “they reflect an error of law or * * * are arbitrary and capricious or are unsupported by substantial evidence”).  A determination is not arbitrary and capricious “so long as a rational connection between the facts found and the choice made has been articulated.”  In re Excess Surplus Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 277 (Minn. 2001) (quotation omitted). 

I.          Completion Date

            Xcel argues that MnDOT’s order requiring Xcel to complete the relocation and adjustment of Xcel’s utility facilities by June 1, 2002 is arbitrary and capricious for several reasons:  (1) MnDOT failed to issue any findings supporting June 1, 2002 as the completion date; (2) MnDOT excluded Xcel from the schedule planning, thereby denying Xcel due process; and (3) the June 1, 2002, completion date ignores the complexities of the project and the relocation expertise of Xcel.  We agree.

            Lack of Findings     

            Xcel argues that MnDOT’s failure to hold an evidentiary proceeding, to make findings of fact, or to cite evidence to support the completion date in MnDOT’s Notice and Order demonstrates that the completion date articulated by MnDOT is arbitrary and capricious.  Although we are puzzled as to why Xcel did not address the deadline in its ongoing proceeding in federal court, we have previously determined that this issue is properly before us.  See N. States Power Co. v. Minn. Dep’t of Transp., No. CX-02-287 (Minn. App. Apr. 23, 2002).  After careful review of the record, we agree with Xcel that the June 1, 2002, completion date is unsupported by any record evidence and, therefore, is arbitrary and capricious.

A party makes a prima facie showing of arbitrariness with regard to an agency decision when an administrative agency fails to issue any findings or cite any evidence explaining the agency’s reasons for its decision.  See Honn v. City of Coon Rapids, 313 N.W.2d 409, 416 (Minn. 1981) (noting that it concluded in a previous case that the “failure of the council to record any legally sufficient basis for its determination at the time it acted made a prima facie showing of arbitrariness inevitable” (quotation omitted)); Reserve Mining Co. v. Minn. Pollution Control Agency, 364 N.W.2d 411, 414 (Minn. App. 1985) (stating that the MPCA Board’s limit on fiber per liter was arbitrary and capricious as the limit was set “without providing written findings and reasons”), review dismissed (Minn. June 10, 1985).

MnDOT argues that to require findings or citation to evidence in the record to support every project deadline will create chaos in its work projects.  We are not dealing with every project.  The nature and scope of the LRT project is unique and the potential disruption to the provision of power created by the need for Xcel to relocate or redesign major portions of its utility facilities serving greater Minneapolis is significant.  Xcel has advanced reasons, unrefuted in the record before us, why the completion date cannot be met. 

In response, MnDOT argues that it might be willing to extend deadlines for certain portions of the work and states satisfaction with the progress Xcel had made by the time of oral argument (June 5, 2002), despite the fact that relocation and adjustment by Xcel is far from complete.  By rule, MnDOT is required to ensure that completion dates specified in orders for improvements affecting utilities “be reasonable under the circumstances.”  Minn. R. 8810.3300, subp. 3 (2001).   MnDOT’s response in this case is tantamount to an admission that the completion date imposed in the order is unreasonable.

            Because we are striking the deadline as arbitrary and capricious, we do not reach Xcel’s other arguments.

II.        Motion to Strike Barron Affidavits and Motion to Supplement the Record

            MnDOT moved to supplement the record with the following documents:  (1) a May 1, 2002 affidavit by Vicki Barron, the utility and construction compliance engineer on the LRT project; (2) an April 25 letter from Barron to James Kucera, Xcel’s engineer; and (3) an April 1, 2002 affidavit by Barron.  Xcel opposed MnDOT’s motions and moved to strike the May 1, 2002 Barron affidavit, the April 1, 2002 Barron affidavit, and the April 25 letter.

            The documents do not constitute conclusive documentary evidence and, therefore, we deny MnDOT’s motion to supplement the record and grant Xcel’s motion to strike the requested documents from the record.  See In re Livingood, 594 N.W.2d 889, 895-96 (Minn. 1999) (stating that a court may consider papers not filed in the district court when the documents are “documentary evidence of a conclusive nature” (quotations and citations omitted)). 



[1] The area involved in the Notice and Order is the LRT Corridor from Nicollet Avenue to 1st Avenue North in Hennepin County.