A20-0947

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1195
A20-0947

In the Matter of Freeborn Wind Energy LLC’s Application for a Large Wind Energy
Conversion System Site Permit for the 84 MW Freeborn Wind Farm in Freeborn County.

Filed April 19, 2021
Affirmed
Slieter, Judge

Minnesota Public Utilities Commission
File No. IP-6946/WS-17-410

Carol A Overland, Overland Law Office, Red Wing, Minnesota (for relator Association of
Freeborn County Landowners)

Keith Ellison, Attorney Genera l, Susan C. Gretz, Leigh Currie, A ssistant Attorneys
General, St. Paul, Minnesota (for respondent Minnesota Public Utilities Commission)

Christina K. Brusven, Lisa M. Agrimoni, Alethea M. Huyser, Fredrickson & Byron, P.A.,
Minneapolis, Minnesota; and

Ryan J. Long, Matthew B. Harris, Minneapolis, Minnesota (for respondent Northern States
Power Company, d/b/a Xcel Energy)

Considered and decided by Johnson, Presiding Judge; Hooten, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In these consolidated certio rari appeals, relator Asso ciation of Freeborn County
Landowners seeks to challenge several orders issued by respondent Minnesota Public
Utilities Commission (MPUC), which granted and amended a site permit for a large wind

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energy conversion system (LWECS) in Freebor n County. The scope of these appeals is
limited to relator’s arguments that the MPUC erred by (1) denying relator’s petition for an
environmental-assessment worksheet (EAW) before approving amendments to the permit;
(2) denying relator’s request for a conteste d-case hearing or public hearing before
approving the amendments; and (3 ) failing to take a “hard look” at noise and light issues
before approving the amendments. We discer n no basis to interfe re with the MPUC’s
decisions and therefore affirm.
FACTS
On December 19, 2018, foll owing a contested-case hearing, the MPUC issued an
order that granted Freeborn Wind Energy LLC (Freeborn Wind) a site application permit
to construct an LWECS in Freeborn County (the first order). Relator petitioned the MPUC
for reconsideration of the first order granting the Freeborn Wind site permit.
On May 10, 2019, the MPUC issued an order that denied reconsideration of the first
order and amended the site permit on its own motion (the second order). Relator did not
thereafter file a certiorari appeal of the first order but petitioned for reconsideration of the
second order (the second petition). On July 2, 2019, the MPUC denied reconsideration of
the second order, which relator timely appealed (the first appeal).
In June 2019, respondent Northern States Power, d/b/a Xcel Energy (Xcel), acquired
Freeborn Wind. In August 2019, Xcel petitioned to amend the site permit. Its petition to
amend the permit included an updated environmen tal analysis of each proposed change.
Relator filed a petition for an EAW.

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On March 20, 2020, the MPUC issued an order that determined an EAW was not
required and granted Xcel’s proposed amendment (the third order). Relator petitioned for
reconsideration (the third petition), which th e MPUC denied on June 12, 2020. Relator
filed an appeal (the second appeal), and we issued an order consolidating the first and
second appeals.
DECISION
As a threshold matter, we address the proper scope of this appeal. Pursuant to Minn.
Stat. § 216B.52 (2020), an aggrieved party may appeal any order of the MPUC pursuant to
the appeal provisions of the Minnesota Administrative Procedure Act (MAPA). See Minn.
Stat. §§ 14.63-.69 (2020). Pursuant to MAPA, a certiorari appeal must be filed within 30
days after the party receives the final decision and order of the agency. Minn. Stat. § 14.63.
But if a request for reconsideration is made w ithin ten days of the agency’s decision, the
30-day appeal period runs from service of the order finally disposing of the application for
reconsideration. Minn. Stat. § 14.64. Finally, Minn. Stat. § 216B.27, subd. 2 (2020) limits
our review to issues that were raised to the MPUC in a petition for reconsideration of a
timely appealed order.
Applying these principles, we conclude that the scope of this ap peal is limited to
issues decided in the MPUC’s second and third orders that were also addressed in relator’s
second and third petitions. Relator raises a number of issues that were addressed and finally

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decided by the MPUC in its first order.1 But because relator did not timely file a certiorari
appeal from the first order, issues decided in that order fall outside the scope of our review,
and we therefore declin ed to address them. See In re Minn. Power fo r Auth. to Increase
Rates for Electric Serv. in State , 929 N.W.2d 1, 8 (Minn. App. 2019) (determining the
scope of appeal did not extend to i ssues decided in MPUC’s prior order), review denied
(Minn. Aug. 6, 2019). Relator timely filed these appeals from the second and third orders.
Pursuant to Minn. Stat. § 216B.52 and MAPA, we limit our review to the issues decided
by the MPUC in those orders.
Pursuant to MAPA, this court may reverse, remand, or modify an agency decision
only if the agency’s actions were, among other things, affect ed by an error of law or
arbitrary or capricious. Minn. Stat. § 14.69. “[I]f there is room for two opinions on a
matter, the [MPUC]’s decision is not arbitrary and capricious, even though the court may
believe that an erroneous conclusion was reached.” In re N. States Power Co., 775 N.W.2d
652, 658 (Minn. App. 2009).
The MPUC has broad authority to regulate p ublic utilities and to review applications
for siting and routin g permits for large energy facilities. See generally , Minn. Stat.
§§ 216A.01 to 216H.13 (2020); see also Computer Tool & Eng’g, Inc. v. N. States Power
Co., 453 N.W.2d 569, 572 (Minn. App. 1990) (citing Minn. Stat. Ch. 216B), review denied
(Minn. May 23, 1990). An administrative ag ency’s decision enjoys a presumption of

1 These issues include the alleged failure to promulgate rules or siting criteria for LWECS,
the ground factor used by the MPUC in mode ling, and that the public was excluded from
meaningful participation in the Freeborn Wind proceedings.

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correctness; appellate courts defer to an ag ency’s expertise and special knowledge in its
field. In re Annandale & Maple Lake NPDES/SDS Permit Issuance, 731 N.W.2d 502, 514
(Minn. 2007). An appellate court must not s ubstitute its judgment for that of the agency
when the agency’s findi ngs are adequately suppo rted by evidence. See In re Denial of
Eller Media Co.’s Applications fo r Outdoor Device Advert. Permits , 664 N.W.2d 1, 7
(Minn. 2003). Relator, as the party challengi ng an agency decision, bears the burden of
demonstrating error on appeal. In re Review of 2005 Annual Automatic Adjustment of
Charges, 768 N.W.2d 112, 118 (Minn. 2009).
I. The MPUC did not err by denyin g relator’s petition for an EAW.

Relator first challenges the MPUC’s denial of its petition for an EAW, arguing that
Xcel’s petition to amend the site permit necessitated environmental review pursuant to the
Minnesota Environmental Po licy Act (MEPA), Minn. Stat . §§ 116D.01-.11 (2020).
Although MEPA generally requires prepara tion of an EAW or e nvironmental-impact
statement (EIS) for projects with the potential to impact the environment, MEPA authorizes
the Environmental Quality Board (EQB) to a pprove alternative forms of environmental
review for particular types of projects. Mi nn. Stat. § 116D.04, subds. 4a, 5a(6) (2020).
Pursuant to Minn. R. 4410.4300, subp. 3(D) (2019), environmental review for LWECS is
conducted pursuant to Minnesota Rule 7854. Rule 7854.0 500 governs what must be
included in a site permit application, including what an applicant must include with respect
to a project’s environmental impact. Minn. R. 7854.0500 (2019). An applicant must
include “an analysis of the potential impacts of the project, proposed mitigative measures,
and any adverse environmental effects that cannot be avoided.” Minn. R. 7854.0500,

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subp. 7. (listing 18 categories to be considered under unavoidable environmental effects).
This rule explicitly states, “[ t]he analysis of the environm ental impacts required by this
subpart satisfies the environmental review requirements of chapter 4410, parts 7849.1000
to 7849.2100, and Minnesota Statutes, chapter 116D. No [EAW] or [EIS] shall be required
on a proposed LWECS project.” Id.
Freeborn Wind filed an environmental analysis as part of its initial application for a
LWECS, and Xcel updated its environmental-impact analysis supporting its later petition
to amend the site permit. The Minnesota Department of Commerce, Energy and
Environmental Review Analysis division (DOC-EERA) considered the environmental
impacts of the amendment and determined that Xcel’s proposed amendment only required
alteration to the original permit’s description of the project. DOC-EERA determined that
an environmental review had already been completed and nothing further was required
pursuant to Minnesota Rules. The MPUC adopted DOC-EERA’s analysis and subsequent
recommendations.
Relator argues that the project required an EAW and EIS pursuant to MEPA. This
argument is unavailing by the plain language of the rules governing environmental review
for LWECS. Xcel satisfied the environmenta l-review requirements by including in its
permit amendment an analysis of the poten tial environmental impacts of the Freeborn
Wind project. Because the law requires neither an EAW nor EIS for LWECS, the MPUC
did not err in denying relator’s petition for an EAW.

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II. The MPUC did not err by denying re lator’s request for a second contested-
case hearing or by denying public part icipation before approving the permit
amendments.

Relator next challenges the MPUC’s deni al of its requests for a contested-case
hearing or public hearing before approving amendments to the permit. “Any person may
request . . . a contested case hearing be held on an application fo r a site permit for a
proposed LWECS project.” Minn. R. 7854.0900, subp. 5(A) (2019). “The [MPUC] shall
order a contested case hearing if the [MPUC] finds that the person requesting the contested
case hearing has raised a material issue of fact and that holding a hearing would aid the
[M]PUC in making a final determination on the permit application.” Id., subp. 5(B).
Following Freeborn Wind’s original site permit application, the MPUC referred the
matter to the Office of Admini strative Hearings for a contested-case hearing, and a
contested-case hearing was held over three days. After Xcel acquired Freeborn Wind and
petitioned the MPUC for an amended site permit, relator requested a second contested-case
hearing. The MPUC relied on environmenta l analysis from DOC-EERA in denying a
second contested-case hearing. The MPUC in the third order adopted DOC-EERA’s
conclusion that the anticipated impacts of the proposed permit amendment were
“comparable to, or less than, th e consequences anticipated from the existing site permit.”
The MPUC noted that DOC-EERA “evaluated the consequences of Xcel’s proposed
changes for noise—both from the operation of the turbines themselves, and when that noise
would be combined with ambient noise—and found support for the proposition that the
revised project would be able to comply with the site permit’s requirements.” Likewise,
the MPUC noted DOC-EERA agr eed “with Xcel’s analysis that the project could be

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expected to cause six residences to experien ce more than 30 hours of shadow flicker per
year, arguably triggering the need for remedial measures.” The MPUC accordingly denied
appellant’s petition for a contested-case hearing, “find[ing] no significant issues of material
fact that require resolution before acting on Xcel’s petition.”
Relator contends that the MPUC’s deni al of a contested-case hearing before
granting Xcel an amended perm it is “contrary to the [MPUC] ’s responsibility to address
material issues of fact,” citing “thousands of pages of new filings,” including “compliance
filings.” Relator argues the compliance fili ngs, filed after the permit was granted, raise
material issues of fact regarding both noise modeling and shadow flicker modeling. Nearly
all of the fact issues to which relator points—including la ck of production of noise
modeling and the failure to consider modeling results of shadow flicker—were addressed
in the contested-case hearings on the site perm it application. As to these issues, relator
therefore alleges no new material facts beyond those raised at the first contested-case
hearing.
Relator contends that “[n]ew shadow f licker modeling admittedly shows impacts,
with methodology for tallying total number of hours [being] in consistent and not
explained.” However, relator again does not assert any new issues of material fact which
would assist the MPUC in determining whether to gran t the permit amendment.
Additionally, relator argues that Xcel’s co mpliance filings “claim[] to demonstrate
predicted impacts, and admit[] that there woul d be impacts,” but does not cite what those
impacts would be. Relator also argues Xcel’s compliance filings demonstrate the turbines
are “larger [and] noisier,” but does not otherwise support its assertion.

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In denying relator’s request for a sec ond contested-case hearing, the MPUC noted
the case had an extensive history, that there had already been a contested-case proceeding,
that the project did not present a potential for significant environmental effects, and that it
had previously addressed noise concerns. It also noted it solicited and received public
comments on the amended permit. Finally, th e MPUC noted that “whether Xcel will
actually comply with these requirements in the future is not a matter that can be established
via a contested case proceeding.” On this re cord, we cannot conc lude that a second
contested-case hearing was required.
Relator separately asserts that the MPUC “fail[ed] in its duty to the public” by
failing to allow for public participation. Minn. R. 7854.0900 governs public participation
requirements before issuance of a wind siting permit. The MPUC, before the third order,
noticed a public-comment period for the Xcel permit amendment. See Minn. R. 7854.0900
subp. 1. The MPUC solicited comments on: “X cel’s petition to amend the site permit to
change the number, type, and layout of the turbines to be used, and to incorporate additional
land” (the amendments eventua lly granted by the third orde r) “and Xcel’s supplemental
environmental impact analysis offered in support of its proposed amendments.” A public-
comment period was required by Minn. R. 7854.0900 subp. 3. The MPUC noted the
“comments received from the public expressed concerns regarding potential impacts of the
project similar to those received and considered prior to issuance of the site permit” and
that “commenters raised concerns about the health effects of noise, shadow flicker and the
selection of an appropriate ground factor for noise analysis.” Further, the MPUC
considered information “prese nted at public information me etings” in denying relator’s

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petition for an EAW and EIS. This meeting was also requ ired pursuant to Minn. R.
7854.0900, subp. 4. Because the MPUC complied with the public-participation
requirements of Minn. R. 7854.0900, we reject relator’s assertion that the MPUC erred by
failing to allow for public participation.
III. The MPUC did not act arbitrarily or capriciously in approving the permit
amendments.

Relator next challenges the MPUC’s d ecision to grant permit amendments. An
amendment to a LWECS site permit may be granted “at any time for good cause.” Minn.
R. 7854.1300, subp. 2 (2019). The MPUC also has “inherent authority to correct its prior
decisions.” In re Applications for Auth. to Provide Alternative Operator Servs. in Minn.,
490 N.W.2d 920, 925 (Minn. App. 1992), review denied (Minn. Dec. 15, 1992). So long
as the MPUC engaged “in reasoned decision making” appellate courts will affirm, even if
it “may have reached a different conclusion had it been the factfinder.” Cable Commc’ns
Bd. v. Nor-West Cable Commc’ns P’ship, 356 N.W.2d 658, 669 (Minn. 1984). Appellate
courts “will intervene . . . wh ere there is a ‘combination of danger signals which suggest
the agency has not taken a “hard look” at the salient problems’ and the decision lacks
‘articulated standards and reflective findings.’” Id. (quoting Reserve Mining Co. v. Herbst,
256 N.W.2d 808, 825 (Minn. 1977)). Rela tor has the burden on appeal “of proving that
[the agency’s] findings are unsupport ed by the evidence as a whole.” Friends of Twin
Lakes v. City of Roseville , 764 N.W.2d 378, 381 (Mi nn. App. 2009) (citing Citizens
Advocating Responsible Dev. v. Kandiyohi Cnty Bd. of Comm’rs , 713 N.W.2d 817, 833
(Minn. 2006).

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a. The Second Order
The MPUC, on its own motion in the second order, adopted changes to the site
permit that it determined were reasonable, co rrecting language in section 7.4.1. that
conflicted with section 6.1.2 In addressing the permit’s conflicting provisions, the MPUC
retained a 47 dB(A) standard for noise mo deling as opposed to a 45 dB(A) modeling
standard. However, the 47 dB(A) retained standard did not change the MPUC’s
requirement that the Freeborn Wind project’s turbines comply with a 50 dB(A) limit.
Additionally, expert testimony and testimo ny of MPUC officials provide evidence
supporting the provision retained, and the MPUC’s amendment, as supported by evidence,
is entitled to deference. See Annandale, 731 N.W.2d at 514.
Further, the MPUC’s clerical changes to sections 6.1, 6.2, and 7.4 were rational
decisions supported by evidence. These sections cont ained duplicative and potentially
conflicting material, which the MPUC had inherent authority to correct. See Applications
for Auth. to Provide Alternati ve Operator Servs. in Minn. , 490 N.W.2d at 925. The
MPUC’s actions in its second order corre cting conflicting provi sions and correcting
clerical errors were not arbitrary or capricious.

2 Section 6.1 explicitly controlled Special Co nditions and Noise Mode ling. Section 6.2
controlled Post-construction Noise Modeling. Section 7.4 governed Noise Studies, and
7.41 and 7.42 initially covered Pre-Construction Demonstration of Compliance with Noise
Standards and Post-Construction Noise Monitoring, respectively. Additionally, regulation
of a wind farm’s pre-construction noise modeling and post-construction noise monitoring
is an area of agency expertise to which we give deference.

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b. The Third Order
The MPUC in its third orde r granted Xcel’s petition to amend the Freeborn Wind
site permit, after DOC-EERA determined that Xcel’s proposed amendment only required
alteration to the original permit’s description of the project. The department of commerce,
through DOC-EERA, provides technical exper tise and other assistance to the MPUC in
LWECS proceedings. Minn. Stat. § 216E.03, s ubd. 11 (2020). The MPUC’s adoption of
DOC-EERA’s environmental analysis is entitled to the same deference. Minn. Ctr. For
Envtl. Advocacy v. Minn. Pollution Control Agency , 644 N.W.2d 457, 464 (Minn. 2002)
(holding environmental effects analysis is a determination of fact that necessarily requires
application of agency expertise).
In its third order, the MPUC noted Xcel’s petition to amend the site permit involved
only authorization of the “installation of a different turbine model and updating the project
layout.” Supporting its petition, Xcel raised, and the MPUC considered, 18 factors on the
potential environmental impacts resulting from Xcel’s proposed amendment, as required
pursuant to the Minnesota Rules. See Minn. R. 7854.0500, subp. 7. Based on Xcel’s
submitted evidence, DOC-EERA determined the proposed am endment demonstrated the
same or similar economic impacts, while continuing to meet the permit’s conditions. The
MPUC received comments on the proposed amendments, reviewed the extensive record of
this case, and reviewed Xcel’s submissions. The MPUC relied on DOC-EERA’s analysis
of those submissions to determine the permit would, as amended, meet its conditions, and
so found good cause to amend the permit.

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Relator contends that the MPUC failed to scrutinize “material facts regarding
changes in the project and potential impacts.” In so contending, relator argues the MPUC
“fail[ed] to verify” Xcel’s claims in supp ort of the permit’s ame ndment, and that DOC-
EERA’s requests for information demonstrates th at the record is insu fficient to “support
granting a permit in compliance with Minnesota law.”
The Minnesota Rules do not require th e MPUC to perform any independent
verification of the informa tion submitted in a petition, see Minn. R. 7854.0500 subp. 7,
and, by statute, DOC-EERA provides tec hnical expertise to the MPUC in LWECS
proceedings. Minn. Stat. § 216E.03, subd. 11. The MPUC’s thir d order amending the
description of the Freeborn Wind project wa s supported by the required environmental
analysis, and, as noted above, this anal ysis was supported by DOC-EERA. The MPUC
therefore reasonably relied on the analysis conducted by DOC-EERA, based upon the
required information submitted by Xcel. The MPUC did not act arbitrarily or capriciously
by granting Xcel’s permit amendment.
Affirmed.