Justia Utilities Law Opinion Summaries

801 Skinker Boulevard Corporation (801), a corporation operating as a residential cooperative, sought a refund for sales taxes under Mo. Rev. Stat. 144.030.2, which indicates that utilities purchased for residential units for common areas and facilities shall be deemed to be for domestic use. The refund request concerned state sales tax charged and paid on electric and natural gas utilities purchased from 2006 through 2009. 801 filed for a refund of sales tax on its Union Electric (Ameren) and Laclede Gas Company (Laclede) bills. Ameren and Laclede also filed for refunds on behalf of 801. Ameren and Laclede's applications were denied. 801, Ameren, and Laclede (Taxpayers) subsequently filed a request for a refund of sales tax with the Administrative Hearing Commission, alleging that the utilities were purchased for domestic use by the individual owners and residents of 801 in accordance with section 144.030.2. The Commission denied the request. The Supreme Court reversed and ordered a full refund of the sales tax paid, holding that Taxpayers were entitled to the exemption and refund of their sales taxes pursuant to section 144.190.2, as 801's utility purchases were deemed by statute to be for "domestic use" and, thus, were exempt from sales tax. View "801 Skinker Boulevard Corp. v. Dir. of Revenue" on Justia Law

In 1996, Dominion, a power company, replaced coal burners in two of its plants, temporarily removing the units from service for two to three months. During that time, Dominion incurred interest on debt unrelated to the improvements. On its tax returns, Dominion deducted some of that interest. The IRS disagreed, citing Treasury Regulation 1.263A-11(e)(1)(ii)(B), as requiring Dominion to capitalize half ($3.3 million) of that interest over several years, instead of deducting it in a single tax year. The Claims Court granted summary judgment to the IRS. The Federal Circuit reversed. The associated property rule in Treasury Regulation 1.263A-11(e)(1)(ii)(B), as applied to property temporarily withdrawn from service, is not a reasonable interpretation of the Tax Reform Act of 1986, I.R.C. 263A (Capitalization and Inclusion in Inventory Costs of Certain Expenses). Treasury acted contrary to 5 U.S.C. 706(2) in failing to provide a reasoned explanation when it promulgated that regulation. View "Dominon Res., Inc. v. United States" on Justia Law

Plaintiff is a non-profit, member-owned, water company serving rural areas of Ross County, Ohio. To finance its system, plaintiff borrowed nearly $10.6 million from the USDA. The disputed area of the county includes properties served by the city and properties served by plaintiff. Each has objected to the other's extension of new lines to the area. The district court granted plaintiff summary judgment, finding that the company is protected under the Agriculture Act, 7 U.S.C. 1926(b)(2), based on its obligations under the USDA contract, had a legal right to serve the area under a contract with the county, and did not have unclean hands. The Sixth Circuit affirmed.View "Ross Cnty. Water Co., Inc v. City of Chillicothe" on Justia Law

Plaintiff owns 2,485 acres containing Indiana's only antebellum plantation and 2,000 acres of "classified forest," with endangered species habitats. A utility company has a lease for storing and extracting oil and natural gas on portions of the property. The Lease continues so long as "oil or gas is produced in paying quantities" or "the Property continues to be used for the underground storage of gas" and will terminate upon the utility's surrender or failure to make payments. The lease contains provisions to protect historic sites and to calculate damage to trees, requires notice of utility activity, and requires that the utility's use be "as minimally necessary." Plaintiff sought damages and to terminate the lease and evict the utility. The district court entered judgment for the utility, finding that a disagreement about the use of land was not an express reason for termination and that the lease specifically provided that damages were the proper remedy. Plaintiff dismissed the damages claim with prejudice to appeal the ejectment claim. The Seventh Circuit affirmed. Plaintiff did not show that damages are inadequate to compensate for the harm to its property. View "Cedar Farm, Harrison County, Inc. v. Louisville Gas & Elec. Co" on Justia Law

St. Charles Tower, Inc. (St. Charles) filed suit against defendants after they declined to issue St. Charles a conditional use permit necessary to construct a proposed cell-phone tower in Franklin County. After the district court entered a consent judgment, trustees of a homeowner's association that opposed construction of the tower (Intervenors) sought to intervene in the litigation in order to challenge the consent judgment on the grounds that it violated state law. The district court granted their motion to intervene but denied their motion to alter, amend, or vacate the consent judgment and intervenors appealed. The court held that the consent judgment impermissibly circumvented sections 32 and 81 of the Land Use Regulations. Therefore, the court held that the district court erred in holding that the consent judgment did not violate state law and that any violation was justified as a necessary remedy for a violation of the Telecommunications Act of 1996, 47 U.S.C. 332(c)(7)(B)(v). Accordingly, the court reversed the denial of intervenors' motion and remanded for further proceedings. View "St. Charles Tower, Inc. v. Kurtz, et al." on Justia Law

Appellant owned and operated the Sewell Creek Energy Facility, a "peaking" power plant that began operating in 2000. Appellees, neighbors of the power plant, filed suit in 2007 alleging that the power plant constituted a nuisance. At issue was whether appellants were entitled to summary judgment where the power plant was either a permanent nuisance or continuing nuisance that could be abated. The court found that the power plant's exhaust silencing system, which was an integral part of the gas turbines that generated power, was an enduring feature of the power plant's plan of construction and the noise emanating from the exhaust stacks resulted from the essential method of the plant's operation. Consequently, the exhaust stacks were a permanent nuisance. Thus, the court held that the Court of Appeals erred when it omitted any consideration of whether the nuisance resulted from an enduring feature of the power plant's plan of construction or an essential method of its operation and grappled only with whether the nuisance could be abated at "slight expense." The court held that appellees' action was barred under the statute of limitation for permanent nuisances because they did not file their lawsuit until almost seven years after the plant became operational, unless some new harm that was not previously observable occurred within the four years preceding the filing of their cause of action. The court also held that, to the extent the trial court found that a factual issue remained concerning whether there was an "adverse change in the nature" of the noises and vibrations coming from the plant after the start of the 2004 operating season, the denial of summary judgment was appropriate. By contrast, to the extent that the trial court found that a factual issue remained concerning whether there was an "adverse change in the... extent and amount" of the noises and vibrations after the 2004 operating season, the denial of summary judgment was inappropriate. Accordingly, the court affirmed in part and reversed in part. View "Oglethorpe Power Corp., et al. v. Forrister, et al." on Justia Law

In consolidated appeals, plaintiff challenged the district court's conclusions that its property was properly included in the South of Laramie Water and Sewer District ("district") and that the district lawfully issued certain general obligation bonds. Plaintiff also challenged the refusal of the Board of County Commissioners of Albany County ("board") to exclude plaintiff's property from the district. The court affirmed Docket No. S-10-0199 and held that plaintiff was barred from challenging the inclusion of its property in the district and found that the district's proposed general obligation bond issue was not unlawful. In Docket No. S-10-0238, the court answered certified questions related to the Wyoming board of county commissioners' power to remove real property from a water and sewer district and the district court's dismissal of plaintiff's claim under W.R.C.P. 12(b)(6). The court affirmed the district court's dismissal of Claim I under section 12(b)(6) where a motion to dismiss under section 12(b)(6) was an appropriate vehicle in which to raise the issue of the passage of a period of limitations; where Wyo. State. Ann 41-10-107(g) unambiguously forbade any "petition in error [or] other appeal" from a board's resolution establishing a water district, and unambiguously stated that the "organization of the district shall not be directly or collaterally questioned in any suit, action or proceeding" except "an action in the nature of a writ of quo warranto, commenced by the attorney general within thirty (30) days after the resolution..."; and where there was no inherent right to appeal from administrative action.

Plaintiff filed suit against defendants, Wayne Hagan and James Joubert, alleging that Joubert was negligently excavating on a backhoe and severed plaintiff's underground fiber-optic cable in violation of the Louisiana Damage Prevention Act, LA. REV. STAT. ANN 40:1749,11 et seq., and that Hagan was vicariously liable because Joubert was acting as his agent at the time. At issue was whether the district court erred when it refused to give the jury plaintiff's proposed instruction on trespass. Also at issue was whether the district court erred when it excluded statements made by Hagan's attorney to plaintiff's employee under Federal Rule of Evidence 408; when it refused to certify plaintiff's witness as an expert; and when it held that defendants were entitled to attorneys' fees and costs. The court certified the first issue where the Louisiana Supreme Court had not previously determined what standard of intent was used for trespass to underground utility cables and the issue was determinative of whether plaintiff was entitled to a new trial on its trespass claim. The court held that the statements made by Hagan's attorney to plaintiff's employer could have been excluded on other grounds given that it was inadmissible hearsay against Joubert and therefore, the court declined to remand for a new trial on this ground. The court also held that the district court did not commit a reversible error where plaintiff did not proffer the substance of plaintiff's witness' excluded testimony. Finally, the court deferred addressing the attorneys' fees issue pending the Louisiana Supreme Court's decision on the first issue.

Plaintiff Great Wolf Lodge of Traverse City, LLC (Lodge) is a water park that sits on former farmland. In 2000, the Lodge annexed a new portion of the former farmland to expand its premises. Defendant Cherryland Electric Cooperative (Cherryland) ran an electric line to the former farm. Cherryland insisted that it had exclusive rights to provide electric service to the Lodge. The Lodge did not protest Cherrylandâs assertion in order to keep its expansion project on track. The new Cherryland contract called for discounted rates. Over the course of the contract, Cherryland unilaterally raised the rates. The Lodge filed suit seeking a refund of excess rates it paid to Cherryland, and to have the ability to choose its own electric service provider. A hearing officer would rule in favor of the Lodge on the rate refund, but would not allow it to choose its own service provider, citing Cherrylandâs âright of first entitlementâ that dated back to when it provided service to the farm. The appellate court reversed the hearing officer. One of the issues on appeal to the Supreme Court was whether Cherrylandâs âright of first entitlementâ stopped when the property ownership changed hands. The Court concluded that the right is not extinguished when ownership changes. The Court reversed the judgment of the appellate court, and reinstated the decision of the hearing officer.