In the Matter of Trade Secret Designations of 2019 Cogeneration and Small Power Production Reports.

This opinion is nonprecedential except as provided by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
A20-0827

In the Matter of Trade Secret Designations of 2019 Cogeneration and
Small Power Production Reports.

Filed April 5, 2021
Appeal dismissed
Larkin, Judge

Minnesota Public Utilities Commission
File No. E-999/PR-19-9

Jeffrey Hammons (pro hac vice), Environmental Law and Policy Center, Washington,
D.C.; and

Scott R. Strand, Environmental Law and Policy Center, Minneapolis, Minnesota (for
relators Environmental Law and Policy Center and Institute for Local Self Reliance)

Keith Ellison, Attorney General, Jeffrey K. Boman, Assistant Attorney General, St. Paul,
Minnesota; and

Ryan P. Barlow, St. Paul, Minnesota (for respondent Minnesota Public Utilities
Commission)

James R. Den niston, Xcel Energy, Minneapolis, Minnesota (for respondent Xcel Energy
Services, Inc.)

Cary R. Stephenson, Otter Tail Power Company, Fergus Falls, Minnesota (for respondent
Otter Tail Power Company)

David R. Moeller, Minnesota Power, Duluth, Minnesota (for respondent Minnesota Power)

Elizabeth M. Brama, Kodi Jean Verhalen, Taft Stettinius & Hollister LLP, Minneapolis,
Minnesota (for respondents Xcel Energy Services, Inc., Minnesota Power, and Otter Tail
Power Company)

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David Shaffer, St. Paul, Minnesota (for amici curiae Solar Energy Industries Association
and Minnesota Solar Energy Industries Association)

Considered and decided by Larkin, Presiding Judge; Cochran, Judge; and Gaïtas,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
In this certiorari appeal, relators Environmental Law and Policy Center and Institute
for Local Self Reliance seek to challenge an order of respondent Minnesota Public Utilities
Commission (the commission) accepting trade -secret designations made by r espondents
Xcel Energy Services Inc., Minnesota Power, and Otter Tail Power Company (the utilities)
in annual filings with the commission. The utilities assert that relators do not have standing
to challenge the commission’s order. We agree and, accordingly, dismiss the appeal.
FACTS
In January 2019, the utilities submitted to the commission their annual cogeneration
and small power production tariffs and reports (the annual filings). The annual filings are
required by the commission’s rules, Minn. R. 7835. 0100-.9920 (2019), which implement
the requirements of section 210 of title II of the federal Public Utility Regulatory Policies
Act of 1978 (PURPA), 16 U.S.C. § 824a-3 (2018); PURPA’s implementing regulations ,
18 C.F.R. § § 292.101-.602 (2019); and Minn. S tat. § 216B.164 (20 20). The utilities
designated portions of the filings as trade secret pursuant to the Minnesota Government
Data Practices Act (MGDPA), Minn. Stat. §§ 13.01-.90 (2020). Relators filed comments

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on the annual filings, objecting t o the trade -secret designations as contrary to the federal
regulations and the commission’s rules.
The commission noticed two successive public-comment periods and discussed the
trade-secret designations at meetings in August and December 2019. Relators, the utilities,
and the Minnesota Department of Commerce Division of Energy Resources submitted
comments and appeared at the commission’s meetings . The commission also received a
comment letter from Ridge Energy LLC, a South Dakota small-power developer, but Ridge
Energy did not appear at the meetings.
In February 2020, the commission issued an order accepting the trade -secret
designations. Relators filed a petition for reconsideration, which the commission denied
in May 2020. Relators then timely filed a petition for a writ of certiorari seeking this court’s
review of the commission’s order.
DECISION
In accepting the utilities’ trade-secret designations, the commission interpreted and
applied three statutory schemes: PURPA and its implementing regu lations; Minn. Stat.
§ 216B.164 and the commission’s rules; and the MGDPA. We begin with an overview of
these schemes, which will inform our analysis of the threshold issue of whether relators
have standing to c hallenge the commission’s order . See State by Humphrey v. Philip
Morris Inc., 551 N.W.2d 490, 493 (Minn. 1996) (analyzing standing in context of claims
asserted).
PURPA “seeks to encourage the development of cogeneration and small power
production facilities.” F.E.R.C. v. Mississippi, 456 U.S. 7 42, 750, 102 S. Ct. 2126, 2132

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(1982).1 PURPA’s implementing regulations, adopted by the Federal Energy Regulatory
Commission (FERC), require utilities to “offer to sell electricity to, and purchase electricity
from, qualifying cogeneration and small powe r production facilities.” Id. at 751, 102 S.
Ct. at 2133. Generally speaking, a utility must offer to purchase electricity from a
“qualifying facility”2 at a rate based on the utility’s “avoided costs,” which are defined as
“the incremental costs to an electric utility of electric energy or capacity or both which, but
for the purchase from the qualifying facility or qualifying facilities, such utility would
generate itself or purchase from another source,” 18 C.F.R. § 292.101(b)(6). See 18 C.F.R.
§§ 292.101(b)(6), .303(a), .304.
The federal regulations further require that, “[t]o make available data from which
avoided costs may be derived,” regulated electric utilities shall provide to state regulatory
authorities—in Minnesota, the commission —every other year and “maintain for public
inspection” certain data related to avoi ded costs. 18 C.F.R. § 292.302(b); see also id. (d)
(allowing state to require provision of different data sufficient to determine avoided costs
with notice to FERC ). While FERC’ s regulations set forth basic requirements, “[t]he
implementation of [the] rules is reserved to the [s]tate regulatory authorities.” 45 Fed. Reg.
12,214, 12,216 (Feb. 25, 1980).

1 “A ‘cogeneration facility’ is one that produces both electric energy and steam or some
other form of useful energy, such as heat. 16 U.S.C. § 796(18)(A). A ‘small power
production facility’ is one that has a production capacity of no more than 80 megawat ts
and uses biomass, waste, or renewable resources (such as wind, water, or solar energy) to
produce electric power. § 796(17)(A).” F.E.R.C. v. Mississippi, 456 U.S. at 750 n.11, 102
S. Ct. at 2132 n.11.
2 A qualifying facility is one that meets certain requirements under FERC’s regulations and
either self-certifies or obtains certification from FERC. See 18 C.F.R. §§ 292.201-.211.

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Minnesota implements PURPA through Minn. Stat. § 216B.164 and the
commission’s rules, Minn. R. 7835.0100-.9920. Minn. Stat. § 216B.164, subd. 1, provides
that the statute “shall at all times be construed in accordance with its intent to give the
maximum possible encouragement to cogeneration and small power production consistent
with protection of the ratepayers and the pub lic.” The commission’s rules require that
certain utilities submit to the commission for approval on an annual basis a cogeneration
and small power production tariff. Minn. R. 7835.0300 ; see also Minn. R. 783 5.0100
(specifying utilities subject to requirement) , .0500-.1000 (specifying information to be
included in tariff). Like the federal regulations, the state rules include a public-inspection
requirement. See Minn. R. 7835.1200.
In addition to being governed by the statutes and rules on cogeneration and small
power generation, the commission, like all state agencies, is governed by the MGDPA. See
Minn. Stat. §§ 13.01, subd. 3, .02, subds. 7, 7a. The MGDPA “regulates the collecti on,
creation, storage, maintenance, dissemination, and access to government data in
government entities.” KSTP-TV v. Ramsey County , 806 N.W.2d 785, 788 (Minn. 2011)
(quoting Minn. Stat. § 13.01, subd. 3). “Trade secret information” 3 is classified as

3 “‘Trade secret information’ means government data, including a formula, pattern,
compilation, program, device, method, tech nique or process (1) that was supplied by the
affected individual or organization, (2) that is the subject of efforts by the individual or
organization that are reasonable under the circumstances t o maintain its secrecy, and
(3) that derives independent economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use. ” Minn. Stat. § 13.37, subd. 1(b). The
commission determined that the utilities properly designated certain portions of the annual
filings as trade -secret information as that term is used in the M GDPA, and relators have
not challenged that determination on appeal.

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nonpublic data under the MGDPA. Minn. Stat. § 13.37, subd. 2. As nonpublic data, trade
secret information may not be disclosed by a government entity to a person other than the
subject of the data. See Minn. Stat. §§ 13.02, subd. 9 (defining nonpublic data), .03, subd.
3(f) (governing responses to requests for nonpublic data), .08-.09 (providing civil remedies
and criminal penalties for violations of the MGDPA).
Relators challenge the commission’s interpretation and application of the three
statutory schemes as allowing for trade-secret designations in the annual filings , arguing
that the MGDPA does not apply and that PURPA and Minn. R. 7835.1200 both require the
annual filings to be available for public inspection in their entireties. We may reach these
substantive assertions, however, only if we determine that relators have standing to pursue
judicial review of the commission’s order. In re Custody of D.T.R., 796 N.W.2d 509, 512
(Minn. 2011) (“Standing is a jurisdictional doctrine, and the lack of s tanding bars
consideration of the claim by the court. ”).4 The burden of demonstrating standing is on
relators. See, e.g., id. at 512-13 (stating that plaintiff must demonstrate injury-in-fact to
support standing); see also United States v. Hays, 515 U.S. 737, 743, 115 S. Ct. 2431, 2435
(1995) (“[I]t is the burden of the party who seeks the exerci se of jurisdiction in his favor

4 Relators suggest that the utilities’ standing argument is precluded because the utilities did
not raise it before the commission. But the issue of whether relators have standing to appeal
is separate from whether they had the right to par ticipate in agency proceedings. In re
Complaint Against Sandy Pappas Senate Comm. , 488 N.W.2d 795, 798 (Minn. 1992).
Moreover, “standing is a jurisdictional prerequisite ” that may be raised at any time by a
party or by the court . Minn. Sands, LLC v. County of Winona, 940 N.W.2d 183, 192 n.9
(Minn. 2020), cert. denied, No. 20-0441, 2021 WL 78118 (U.S. Jan. 11, 2021).

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clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution
of the dispute.” (quotations and citation omitted)).
“Standing is the requirement that a party has a sufficient stake in a justiciable
controversy to seek relief from a court.” Philip Morris Inc. , 551 N.W.2d at 493. “The
purpose of the standing doctrine is ‘ to guarantee that there is a suf ficient case or
controversy between the parties so that the issue is properly and competently presented to
the court.’” Minneapolis Fed’n of Teachers, AFL-CIO, Local 59 v. Minneapolis Pub. Sch.,
Special Sch. Dist. No. 1 , 512 N.W.2d 107, 109 (Minn. App. 19 94) (quoting Twin Ports
Convalescent, Inc. v. Minn . State Bd. of Health , 257 N.W.2d 343, 346 (Minn. 1977)),
review denied (Minn. Mar. 31, 1994).
Standing may be acquired either becaus e a party suffered an injury -in-fact or
through a statutory grant of standing. Philip Morris Inc., 551 N.W.2d at 493. Relators
appeal pursuant to Minn. Stat. § 216B.52, subd. 1 (2020), which provides: “Any party to
a proceeding before the commission or any other person, aggrieved by a decision and order
and directly affected by it, may appeal from the decision and order of the commission in
accordance with chapter 14. ” Thus, in order to establish standing, relators must
demonstrate that they are aggrieved and directly affected by the commission’s order.
“[A]n ‘aggrieved party’ . . . is one who is injuriously or adversely affected by the
judgment or decree when it operates on his rights of property or bears directly upon his
personal interest. ” In re Getsug , 186 N.W.2d 686, 689 ( Minn. 1971). “ The word
‘aggrieved’ refers to a substantial grievance, a denial of some personal or property right,
or the imposition on a party of a burden or obligation .” Id. The considerations for

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determining whether a party is aggrieved are “similar to t he considerations of the ‘injury-
in-fact’ test for standing” in its judicial manifestation. Minn. Educ. Ass ’n v. Indep. Sch.
Dist. No. 404 , 287 N.W.2d 666, 669 (Minn. 1980) ; see also D.T.R., 796 N.W.2d at 513
(“The appellant’ s status as an aggr ieved party depends on whether there is injur y to a
legally protected right.” (quotation omitted)).
Participation in agency proceedings alone is not sufficient to confer standing , nor
can a “mere ‘interest’ in the problem, regardless that the interest is longstanding . . . confer
standing on an individual or organization. ” Sandy Pappas Senate Comm., 488 N.W.2d at
798. The Minnesota Supreme Court has stated that, in order to pursue a certiorari appeal,
a person must assert more than dissatisfaction with an agency’s
interpretation of statutes: the person must articulate with a
degree of clarity some legally cognizable interest of his which
has sustained injury in fact by the agency action —i.e., that he
has in fact sustained injury to some interest which differs from
injury to the interests of other citizens generally.
Id. at 797; see also Stansell v. City of Northfield , 618 N.W.2d 814, 818 -19 (Minn. App.
2000) (holding that residents were not aggrieved parties with standing to challenge
ordinances where they did “ not allege that they [had] suffered any specific injuries” and
instead “ seem[ed] to be litigati ng a matter of public interest”) , review denied (Minn.
Jan. 26, 2001) . “[M]erely possible or hypothetical injury is not enough to satisfy this
standard.” Kennedy v. Carlson, 544 N.W.2d 1, 6 (Minn. 1996); see also State v. Knutson,
523 N.W.2d 909, 911 (Minn. App. 1994) (“A party must have more than an abstrac t
concern and the injury must not be merely speculative .”), review denied (Minn. Jan. 13,
1995).

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Following the lead of the United States Supreme Court, the Minnesota Supreme
Court has recognized the doctrine of associational standing, “ which recognizes that an
organization may sue to redress injuries to itself or injuries to its members.” Philip Morris
Inc., 551 N.W.2d at 497-98. In this case, relators assert that they have standing based on
their own injuries, 5 a type of standing that this court and others have referred to as
“organizational standing.” See Rukavina v. Pawlenty, 684 N.W.2d 525, 532 (Minn. App.
2004), review denied (Minn. Oct. 19, 2004) ; All. for Metro. Stability v. Metro. Council ,
671 N.W.2d 905, 914 -15 (Minn. App. 200 3); see also, e.g. , OCA-Greater Houston v.
Texas, 867 F.3d 604, 610 (5th Cir. 2017) (“An association or organization can establish an
injury-in-fact through either of two theories, appropriately called ‘ associational standing’
and ‘organizational standing.’”).6
In relation to organizational standing, Minnesota courts have “recognize[d]
impediments to an organization’ s activities and mission as an injury sufficient for
standing.” Rukavina, 684 N.W.2d at 533; All. for Metro. Stability, 671 N.W.2d at 914. In
addition, we have explained:
Where an organization attempts to claim an interest in a statute,
there are two key questions to ask to determine if
organizational standing is more likely: (1) if these

5 Relators do not assert that they have standing based on the interests of their members.
Thus, we do not further address this basis for standing.
6 Although the Minnesota Supreme Court has not used the term “organizational standing,”
it has clearly recognized that an organization may have standing based on its own interests,
thereby treating what we have referred to as “organizational standing” as a subset of
“associational standing.” See Philip Mor ris Inc., 551 N.W.2d at 49 7-98 (defining
associational standing to encompass standing based on interests of organization or its
members and rejecting argument that associational standing applies only to organizations
with members).

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organizations were denied standing, would tha t mean that no
potential plaintiff would have standing to challenge the
regulation in question? and (2) for whose benefit was the
regulation at issue enacted?
All. for Metro. Stability , 671 N.W.2d at 915 (citing Snyder’s Drug Stores , Inc. v. Minn.
State Bd. of Pharmacy, 221 N.W.2d 162, 165 (Minn. 1974)).
In support of their argument that they have organizational standing, relators assert
that they “are harmed by the lack of access to the contested avoided cost information
because it impacts their abilit y to further their organizations’ missions.” Based on our
careful review of the record and the parties’ arguments, w e conclude that relators lack
standing to challenge the commission’s order because (A) they have not demonstrated that
they are aggrieved and directly affected by the commission’s order; and (B) there are other
potential challengers to the trade -secret designations who have direct interests and for
whose benefit the relevant statutes and regulations were adopted.
A. Relators have not demons trated that they are aggrieved and directly
affected by the commission’s order.

Neither this court nor the Minnesota Supreme Co urt has explained what type of
impediments are sufficient to confer standing on an organization in its own right. But the
decisions of federal courts provide a helpful framework for our analysis. See Philip Morris
Inc., 551 N.W.2d at 497 -98 (stating that associational standing is derived from United
States Supreme Court decisions); Snyder’s Drug, 221 N.W.2d at 165 (relying on decisions
by United States Supreme Court and federal courts of appeals to guide standing analysis) ;
All. for Metro. Stability, 671 N.W.2d at 914 (relying on decisions by United States Supreme
Court to guide standing analysis).

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We begin with the proposition that “[i]n determining whether [an organization] has
standing . . . , we conduct the same inquiry as in the case of an individual.” Havens Realty
Corp. v. Coleman , 455 U.S. 363, 378, 102 S. Ct. 1114, 1124 (1982). And, j ust as an
individual may not demonstrate standing through mere interest in a problem, Sandy Pappas
Senate Comm., 488 N.W.2d at 798, “ an injury to organizational purpose, without more,
does not provide a basis for standing ,” S. Walk at Broadlands Homeowner’s As s’n v.
OpenBand at Broadlands, LLC , 713 F.3d 175, 183 (4th Cir. 2013) . See also Sierra Club
v. Morton, 405 U.S. 727, 739, 92 S. Ct. 1361, 1368 (1972) (stating that “a mere ‘interest in
a problem,’ no matter how longstanding the interest and no matter how qualified the
organization is in evaluating the problem, is not sufficient by itself to render the
organization ‘adversely affected’ or ‘aggrieved’ within the meaning of t he APA ”).
Organizations that “seek to do no more than vindicate their own value preferences through
the judicial process” do not have standing. Id. at 740, 92 S. Ct. at 1369. Instead, the federal
courts have recognized a distinction between allegations that the activities of an
organization have been impeded and “those that merely alleg e that their mission has been
compromised.” Abigail All. for Better Access to Developmental Drugs v. Eschenbach, 469
F.3d 129, 133 (D.C. Cir. 2006) (emphasis added). Organizational standing exists when an
organization demonstrates that the challenged conduct has “perceptibly impaired” the
organization’s ability to provide services with a “consequent drain on the organization’s
resources” rather than “simply a setback to the organizati on’s abstract social interests.”
Havens Realty, 455 U.S. at 379, 102 S. Ct. at 1124.

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With this understanding of the nature of interests necessary to support
organizational standing, we turn to the information that relators have provided to
demonstrate sta nding. In their comments to the annual filings, relators identified
themselves as public -interest organizations with interests in promoting small -power
development:
ELPC [the Environmental Law and Policy Center] is a
nonprofit public interest organizatio n that works to achieve
cleaner air and cleaner water, promote renewable energy and
energy efficiency resources, and preserve natural resources in
Minnesota and the Midwest. ELPC has an office in
Minneapolis and has members throughout the state of
Minnesota and the Midwest. ELPC and its members have an
interest in promoting the development and availability of
renewable energy through implementation of PURPA.

The Institute for Local Self -Reliance is a national
nonprofit organization focused on public poli cy that supports
energy customers, individually and collectively, being able to
access the financial and economic benefits of distributed
renewable energy. The Institute for Local Self-Reliance has an
office in Minneapolis.

When questioned by the commission about their interest in access to the annual
filings, counsel for relator s stated: “We have an interest in seeing all sorts of different
programs in the state being implemented in a way that promotes clean energy
development.” And, in their brief to this court, relators assert that they “are harmed by the
[commission’s] failure to ensure public access to avoided cost information because it
discourages investment in renewable qualified facilities and harms their ability to pursue
advocacy to further their organizational missions.”

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The information and arguments offered by relators do not demonstrate injuries to
their organizational interests sufficient to support standing . They do not explain how or
why the commission’s order has “perceptibly impaired” their ability to provide services
with a “consequent drain on [their] resources”; rather they seem to assert “simply a setback
to the organization’s abstract social interests.” Id. Absent specific allegations 7 of
impediments to the activities of their organizations, this court is left to speculate as to the
nature of relators’ injuries. Standing cannot be based on speculation. See Byrd v. Indep.
Sch. Dist. No. 194, 495 N.W.2d 226, 231 (Minn. App. 1993) (affirming dismissal of union
for lack of standing because asserted injury to members was speculative) , review denied
(Minn. Apr. 20, 1993).
At oral argument, relators asserted that they, and all other members of the public,
necessarily have standing because both the federal regulations impleme nting PURPA and
Minn. R. 7835.1200 include public-disclosure requirements that relators assert have been
violated. We disagree. Notwithstanding the public -disclosure requirements, Minn. Stat.
§ 216B.52, subd. 1, limits the class of persons who may appeal orders of the commission

7 Appellate courts generally review issues of standing in the context of the procedural
posture in which the issue was raised. Compare Garcia-Mendoza v. 2003 Chevy Tahoe ,
852 N.W.2d 659, 663 (Minn. 2014) (applying summary -judgment standard to standing
issue), with Forslund v. State, 924 N.W.2d 25, 32 (Minn. App. 2019) (applying motion-to-
dismiss standard to standing issue). Because relators have not made allegations sufficient
to support standing, we need not determine what evidentiary standard applies to standing
issues raised in certiorari appeals.

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to those “aggrieved by a decision and order and directly affected by it. ” As we explain
above, relators have not demonstrated that they fall within this class.8
In determining that relators lack standing, we are cognizant that public-interest
organizations have often been recognized as having standing to pursue judicial relief for
environmental harms. See, e.g., No Power Line, Inc. v. Minn. Envtl. Quality Council, 250
N.W.2d 158, 160 ( Minn. 1976) (holding that organizations had standing to challenge
issuance of certificate for power line based on the in terests of their members who own ed
land within the proposed corridor) . But even public-interest organizations must
demonstrate injuries to interests —either their own or those of their members —that are
different from those held by the general public. See Sandy Pappas Senate Comm. , 488
N.W.2d at 798; see also Havens Realty, 455 U.S. at 379, 102 S. Ct. at 1124; Sierra Club,
405 U.S. at 734-35, 92 S. Ct. at 1366. Relators have not done so in this case.

8 The United States Supreme Court has recognized that in some cases informational injury
supports the existence of standing. See, e.g., Fed. Election Comm’n v. Akins, 524 U.S. 11,
21, 118 S. Ct. 1777, 1784 (1998). Relators do not explicitly argue informational injury or
rely on these cases. We n ote that, even in informational -injury cases, the Supreme Court
has required a demonstration of injury-in-fact. Id. As the D.C. Circuit has explained: “In
some instances, a plaintiff suffers the type of harm Congress s ought to remedy when it
simply seeks and is denied specific agency records,” but “[i]n others, a plaintiff may need
to allege that nondisclosure has caused it to suffer the kind of harm from which Congress,
in mandating disclosure, sought to protect individuals or organizations like it.” Friends of
Animals v. Jewell , 828 F.3d 989, 992 (D.C. Cir. 2016) (quotation omitted). We are not
persuaded that relators suffered the type of harm Congress and the Minnesota Legislature
sought to remedy simply because the commission allowed trade-secret designations in the
annual filings. The purpose of the public-disclosure requirements in the federal regulations
and Minn. R. 7835.1200 is to encourage development of cogeneration and small -power
projects. F.E.R.C. v. Mississippi , 456 U.S. at 750, 102 S. Ct. at 2132. Relators must
therefore assert concrete harm related to this purpose. As we have explained, relators have
not met their burden to do so.

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B. There are other potentia l challengers to the trade -secret designations
who have direct interests and for whose benefit the relevant statutes and
regulations were adopted.

Our conclusion that relators have not demonstrated that t hey are aggrieved and
directly affected by the commission’s order likely is dispositive of the issue of whether
they have standing. See Minn. Stat. § 216B.52, subd. 1. We nevertheless address two
considerations that we have stated “determine if organizat ional standing is more likely.”
All. for Metro. Stability, 671 N.W.2d at 915. First, we consider whether denying relators
standing would mean that no potential relator would have standing. Id. We answer this
question in the negative because the trade -secret designations could be challenged by
small-power developers who seek to become qualifying facilities under PURPA. We
second consider for whose benefit the relevant statutes and regulations were adopted. Id.
Again, here, our focus is directed to the small-power developers. Accordingly, we
conclude that neither of the considerations that make organizational standing more likely
is implicated in this case.
In sum, because relators have not demonstrated that they are aggrieved and directly
affected b y the commission’s order, and because there are no considerations that make
organizational standing more likely, we discharge the writ of certiorari and dismiss this
appeal.
Appeal dismissed.