VOTE SOLAR, MONTANA ENVIRONMENTAL INFORMATION CENTER, and CYPRESS CREEK RENEWABLES, LLC, Plaintiffs and Appellees,
THE MONTANA DEPARTMENT OF PUBLIC SERVICE REGULATION, MONTANA PUBLIC SERVICE COMMISSION, Defendant and Cross-Appellant, and WINDATA, LLC, Plaintiff-Intervenor and Appellee, NORTHWESTERN CORPORATION, d/b/a NORTHWESTERN ENERGY, Defendant and Appellant, and THE MONTANA CONSUMER COUNSEL, Defendant-Intervenor.
North Western Corporation, d/b/a Northwestern Energy
(Northwestern) has filed a M. R. App. P. 22(2)(a) motion for
relief from the District Court's Order denying its motion
to stay judgment pending this appeal. Northwestern seeks
relief from the Order on the basis that the District Court
did not correctly weigh the factors governing stays and
failed to analyze whether a failure to grant a stay would
cause Northwestern to suffer irreparable harm. Appellees Vote
Solar, Montana Environmental Information Center (MEIC), and
Windata, LLC, have responded in opposition to
review a decision of a district court granting or denying a
stay for abuse of discretion. Terms v. State Farm Fire
& Cas. Co., 2011 MT 156, ¶ 17, 361 Mont. 129,
257 P.3d 352. The test for abuse of discretion is whether the
trial court acted arbitrarily without employment of
conscientious judgment or exceeded the bounds of reason
resulting in substantial injustice. Jarvenpaa v. Glacier
Electric Co-op, 1998 MT 306, ¶ 13, 292 Mont. 118,
970 P.2d 84. In reviewing the decision, we are guided by a
number of considerations. First, the Court will be guided by
Rule 22(2)(a)(i), which requires that an appellant
demonstrate good cause for the relief requested. The Court
also looks to the general factors governing stays of civil
judgments articulated in Hilton v. Braunskill, 481
U.S. 770, 107 S.Ct. 2113 (1987). Those factors are: (1)
whether the stay applicant has made a strong showing that it
is likely to succeed on the merits; (2) whether the applicant
will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other
parties interested in the proceeding; and (4) where the
public interest lies.
Order denying the stay, the District Court ruled:
1. [Northwestern] did not make a strong showing of likelihood
of success on the appeal.
2. The only irreparable harm to [Northwestern], if the stay
is not issued, is time and resources to complete the project
they started years ago. [Northwestern] already [has]
voluminous data and calculations, and the anticipated harm,
in event of a remand is not great, when compared to the harm
of the plaintiffs.
3. The harm to the Plaintiffs which would result from a stay
is considerable. Plaintiffs' investments and potential
loss of credits would significantly impact them, perhaps
irreparably if the delay cause them to lose such investment
opportunity or credits.
4. The public interest is not served by a stay. As pointed
out by Plaintiffs, the method and decisions of Defendants,
which were determined arbitrary and unreasonable, is the
potentially affecting negotiations and contract decisions for
other, ongoing projects, which the relevant law charges the
parties and government with encouraging.
District Court offers no analysis for the first factor. The
District Court's analysis of the second factor, as
Northwestern points out, appears unrelated to the present
case: Northwestern is not engaged in a "project,"
but rather a dispute over contracts and rates. Because of the
treatment of these two factors, we cannot conclude that the
District Court did not act arbitrarily as we cannot discern
the District Court's reasoning. For that reason, we
conclude Northwestern has demonstrated good cause for this
Court to consider whether it is entitled to a stay.
the first factor, our review of the briefing on this motion
has not provided us with an impression as to the likelihood
of Northwestern's success on appeal and we thus consider
this a neutral factor.
the second factor, North Western alleges it faces irreparable
harm if it is compelled to enter into 25-year contracts with
energy providers at both a higher rate and longer period of
time than initially set by the Public Service Commission
(PSC). Even if this Court affirms the District Court, in the
interim, Northwestern will have entered into and been bound
by these contracts. Vote Solar and MEIC argue that
Northwestern will not be harmed because the rate set by the
District Court is just and reasonable. Windata acknowledges
that Northwestern will suffer harm, but argues this Court
should disregard such harm because, "Northwestern's
shareholders may be deprived of a ten percent profit.. . but
this deprivation of cash to Goldman Sachs and Wall Street is
not the kind of irreparable harm that justifies staying an
Order ...." This factor preponderates in favor of
Northwestern's position since the respondents have not
refuted NorthWestern's contention that it will suffer
irreparable financial loss if a stay is not granted.
the third factor, again as Northwestern points out to this
Court, two of the Plaintiffs referred to here are two
non-profit organizations, Vote Solar and MEIC, who do not
have investments or the potential loss of credits. Of the
remaining plaintiffs, Cypress Creek Renewables, LLC, has not
opposed-North Western's motion for stay, and although
Windata, LLC, has responded in opposition, it alleges no
specific harm, but only argues generally that tax credits and
landowner agreements may expire.
the fourth factor, Northwestern explains that if it is forced
to enter into 25-year contracts at the higher rates set by
the District Court, its customers will ultimately pay those
rates. Although the respondents to this motion argue the
public interest is best served by denying the stay because
public policy encourages the development of alternative
energy generation in Montana, § 15-32-401, MCA, this is
best achieved by promptly moving forward with this litigation
so that the rate issue is settled.
balancing the four factors, we conclude a stay is appropriate
in this case. Although we have no opinion at this stage as to
NorthWestern's likelihood of success on appeal, we
conclude North Western has demonstrated it will suffer
significant irreparable harm if a stay is not granted and the
District Court's decision is overturned on appeal. The
respondents have not demonstrated that they will suffer
irreparable harm if the stay is granted, and the public
interest will suffer greater harm if the stay is denied and
Northwestern prevails on appeal.
ORDERED that this matter is STAYED pending resolution of this
appeal. The Clerk is directed to provide copies of ...