C.16-12-004 ALJ/MOD-POD-KJB/lil DRAFT
ALJ/MOD-POD-KJB/lil DRAFT Agenda ID #16137
Adjudicatory
12/14/2017 Item #37
Decision ______
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
DeJong Brothers Farming, Robert Winters, Trustee of the Winters Revocable Trust, Nicholas and Janie Gatzman, Trustees of the 2014 Gatzman Family Trust, and Rhett and Ashley Burgess,Complainants,
vs.
Pacific Gas and Electric Company (U39E),
Defendant. / Case 16-12-004
(See Attachment A for Appearances)
MODIFIED PRESIDING OFFICER’S DECISION
AUTHORIZING REMOVAL OF TREES
Summary
Subject to the conditions contained in its Easements, Pacific Gas and Electric Company may remove such almond trees from beneath the transmission lines that cross Complainants’ properties as may interfere with the operation of the transmission lines. Complainants shall not replace the removed trees.
1. Background
Complainants are almond growers with almond groves in Escalon, Manteca, and Oakdale. Each Complainant’s property is burdened by one or more easement, (Easement) in favor of Pacific Gas and Electric Company (PG&E) for the location of electric transmission lines and supporting towers. Complainants have planted almond trees directly beneath the transmission lines.
As an owner of electric transmission lines, PG&E must comply with both the minimum vegetation clearance requirements of California Independent System Operator (CAISO) vegetation management guidelines and California Public Utilities Commission (CPUC or Commission) General Order (GO) 95. CAISO guidelines and GO 95, Appendix E both require a minimum ten feet vegetation clearance area at all times between the highest point of trees and the lowest point of transmission lines. GO95 requires minimum ground to conductor clearance for 115 kilovolt (kV) and 230kV transmission lines of 27feet. It can be seen that any tree that exceeds 17 feet in height at any time during the growing season would put PG&E in violation of these standards.[1] In years past, PG&E has treated pruning trees to a 15-foot maximum height as an acceptable method of assuring its compliance with the CAISO and GO 95 vegetation management standards. In 2017, PG&E notified Complainants that reliance on annual tree-trimming is no longer sufficient to ensure that the 10-foot clearance area will be maintained at all times and that PG&E intended to cut down and remove any tree that is capable of growing enough in one season to enter the clearance area.
PG&E adopted this new, more restrictive standard of vegetation management in the aftermath of several catastrophic power failures and/or fires caused by contact between a tree and a transmission line, including the 2003 blackout of the entire east coast of the United States that resulted from contact between a tree and a power line in Ohio.[2] The new policy requires removal and stumping of any tree planted beneath a transmission line that might interfere with the operation of the line. In adopting this policy, PG&E asserts that experience in recent years has demonstrated that reliance on tree pruning to prevent contact between transmission lines and fast-growing trees such as almond trees is no longer adequate to prevent potentially catastrophic incidents.
An evidentiary hearing was held on July 6, 2017. The matter was submitted for decision on August 11, 2017 upon the filing of reply briefs.
2. Discussion
2.1. May the Commission interpret the Easements?
Complainants assert that the interpretation of the Easements is a matter of real property law and beyond the jurisdiction of this Commission. As a general proposition, interpretation of the meaning of real property documents is not within this Commission’s jurisdiction. However, when, as in this case, an Easement specifically and unambiguously authorizes a utility company to enter on a burdened property and take action to protect utility infrastructure from damage, the general proposition yields to the specific language of the Easement. In fact, Complainants do not contend that the Easements are vague. Rather they contend that only a court of general jurisdiction can determine how their language applies to the facts in this case. That contention will not withstand scrutiny.
A virtually identical issue was decisively analyzed in Sarale vs. Pacific Gas & Electric Co., (2010) 189 Cal. App. 4th 225. In that case, plaintiffs disputed PG&E’s position that its easement gave it the right to severely prune walnut trees. The court, citing Civil Code Section 806,[3] noted that “no interpretation of the scope of the easement described in the grant is necessary…The instrument, unless it is ambiguous, must be construed by a consideration of its own terms.”[4]
Although the specific language of the Easements varies slightly from Easement to Easement, the language of the DeJong Easements is representative of all the Easements involved in this lawsuit other than the Gatzman Easement. The DeJong property is burdened with two easements in favor of PG&E. The 1907 easement provides, after a section requiring PG&E to cut and pile at its own expense any wood from trees cut down on the property, as follows:
The Company, its successors and assigns, may at any time enter upon said land, for the purposes of erecting, maintaining, operating and repairing said line or its appurtenances, and may cut down any trees and clear away any brush along or on said line, which may interfere with the operation and use thereof, subject to the above requirements as to timber.
The 1910 Easement’s language is nearly identical stating, at paragraph 8:
That the Company, its successors and assigns, may at any time enter upon said land, for the purpose of erecting, maintaining, operating and repairing said line or its appurtenances, and may cut down any trees and clear away any brush along or on said line which may interfere with the operating and use thereof, subject to the above requirements as to timber.
It is clear from their unambiguous wording that the DeJong Easements, and the very similar Burgess and Winters Easements, by their own terms give PG&E the right to enter on Complainants’ premises and cut down trees that “may interfere” with the operation and use of the line.
The Gatzman Easement is worded somewhat differently, giving PG&E the right to “make and maintain the necessary clearance” for “all purposes connected with construction, maintenance and use of said lines of poles or towers, wires and other structures….” The language of the Gatzman Easement is virtually identical to the grant to the Wilburs as described in Sarale.[5] The court in Sarale held that the Wilburs’ claims of excessive tree pruning were within the jurisdiction of the Commission, as Wilbur acknowledged PG&E had the right to prune.[6] Complainants similarly accept PG&E’s right to prune, but argue that removal of the trees, i.e., pruning to ground level, is excessive.[7] The Gatzman Easement, by its own terms, contains no restriction on the degree of pruning that PG&E may undertake in order to maintain the “necessary clearance” and its interpretation, like the interpretation of the DeJong, Burgess and Winters Easements, is within the jurisdiction of this Commission.
Applicants have suggested that removal of the designated trees constitutes a taking under the Fifth Amendment for which PG&E is required to compensate the property owners. That argument fails. The property owners’ predecessors in title negotiated the easements with PG&E and presumably received valuable consideration in exchange for their agreement that the utility could remove trees that may interfere with the transmission lines. Authorized tree removal that is the result of a bargained for exchange cannot be a taking. It is axiomatic that a taking requires condemnation for a public purpose (See California Code of Civil Procedure sections 1230, et. seq.), which is not the case here, where the trees are to be removed pursuant to a negotiated easement.
2.2. Do the almond trees planted by Complainants have the potential to grow impermissibly close to the overhead lines? Is it reasonable to conclude that they “may interfere” with the operation of the transmission line?
Testimony in the evidentiary hearing established the following facts: (1)after pruning, an almond tree has the potential to send up a shoot as much as 12 feet in length during a single growing season;[8] (2) applicable regulations require a 10-foot minimum clearance area between trees and transmission lines at all times;[9] (3) almond trees should be trimmed to between 12 and 17 feet in height to comply with applicable regulations;[10] (4) electric transmission lines sag further toward the ground in hot weather, reaching a low point that, pursuant to CPUC order, cannot be less than 27 feet above the ground.[11] From these facts it is easy to determine that in order to prevent an almond tree shoot from entering the 10foot minimum clearance area, the tree would have to be trimmed to a height of five feet.[12] A tree trimmed to 12 and 17 feet would need to produce only a fivefoot shoot to enter the minimum clearance area. Testimony also established that serious fires and power outages have been started by trees that did not touch the transmission lines but grew within three to four feet them, close enough for electric arcs to form between the wires and the trees.[13]
Based on the evidence presented, we conclude that PG&E is lawfully exercising the rights conferred on it by the Easements if it enters onto the Complainants’ properties and removes almond trees planted beneath the transmission lines that have the potential to grow into the minimum clearance area.
2.3. Do applicable laws and regulations support PG&E’s policy of removing trees that may interfere with the operation of transmission lines from beneath those lines?
In Yox vs. PG&E, Case 11-04-014, a case with facts strikingly similar to those in this case, we summarized the laws and regulations governing PG&E’s vegetation management practices as follows:
PG&E’s vegetation management practices are based on a matrix of federal and state standards including:
1. North American Electric Reliability Corporation (NERC) Reliability Standards for Vegetation Management, initially designated as FAC3001, include enforcement authority provided by Congress through delegation to the Federal Energy Regulatory Commission (FERC). The current NERC reliability standard for vegetation management is FAC-003-4.
2. California Independent System Operator (CAISO) approved and enforced Transmission Owner Maintenance Practices, which include vegetation management requirements; and
3. CPUC General Order 95, Rules 35 and 37, and Appendix E.
The NERC Standards were adopted pursuant to a Congressional mandate in the 2005 Energy Policy Act (16 U.S.C. § 8240). That statute authorizes the FERC to certify an electric reliability organization to develop and enforce reliability standards for the electric energy transmission network. NERC is the agency certified by FERC to develop and enforce the transmission network reliability standards, which became mandatory in 2007.
NERC Standard FAC-003-4 requires PG&E to prepare and keep current a formal Transmission Vegetation Management Program (TVMP). As a transmission owner, PG&E is in violation of this standard if: (a) any vegetation-related sustained outages occur; (b) if the “no-grow” minimum clearance area is violated at any time; and (c) if PG&E fails to comply with its own required TVMP. Liability under these standards is absolute, that is to say, it is no defense to suit based on a vegetation-related sustained outage that PG&E trimmed trees to what it believed to be a reasonable distance from a transmission line. Penalties for violating the standard can run as high as $1 million per day. PG&E’s overall vegetation management program is documented in its Transmission Vegetation Management Standards (TVMS), the current equivalent of the TVMP, which it replaced.
Although Standard FAC-300-4 does not contain an explicit statement of clearance distances from transmission lines, it endorses American National Standards Institute (ANSI) Standard A300 (Part 7) as an industry best practice. The ANSI Standard divides the area adjacent to a transmission line into a “Belly Zone” (effectively, the area where a power line could come in contact with vegetation either through upward growth of the vegetation or downward sag of the power line or both) and a “Border Zone” in which such contact is not possible. The ANSI Standard specifies vegetation removal as an appropriate measure for the Belly Zone. PG&E’s TVMS adopts this best practice.
As demonstrated in the testimony summarized above, the almond trees that PG&E proposes to remove are located in the Belly Zone of the various Easements and capable of sending up shoots within a single growing season that will enter the 10-foot minimum vegetation clearance area. Nothing in the complaint contradicts the conclusion that the trees will grow tall enough to do so and could grow within arcing distance of the wires or even touch them. Indeed, the complaint accepts these facts but seeks to have us mandate periodic tree trimming as opposed to tree removal as a way of dealing with them.
In sum, evidence in this proceeding establishes that:
(a) The Easements authorize PG&E to enter on Complainants’ properties and remove trees that may interfere with the operation of the transmission lines;
(b) Almond trees planted in a Belly Zone and trimmed to between 12 and 17 feet in height have a high likelihood of growing into the vegetation clearance area; and
(c) No law or regulation prohibits PG&E from choosing to remove trees that may interfere with the operation of transmission lines instead of trimming them.
3. Appeal of Presiding Officer’s Decision
The decision of Administrative Law Judge (ALJ) Bemesderfer in this matter was mailed to the parties in accordance with Section 311 of the Public Utilities Code. On November 6, 2017, plaintiffs filed a timely appeal of the decision pursuant to Rule 14.4 of the Commission’s Rules of Practice and Procedure. The appeal alleged that the decision erred (a) in interpreting the easements granted to PG&E by the various plaintiffs; (b)misstating the record regarding the height to which almond trees could be allowed to grow underneath a power line whose lowest point was 27 feet above the ground; (c)similarly mis-stating the record in regard to the possibility that electric arcing may occur between a tree and a power line even if they do not come in direct contact; and (d)ordering plaintiffs not to re-plant trees in the Belly Zone of the transmission lines from which PG&E has removed trees. We consider each allegation in turn.
With regard to (a), the interpretation of easements, the presiding officer’s decision correctly stated the law. When an easement specifically and unambiguously authorizes a utility company to take action to protect utility infrastructure, the Commission has the legal authority to interpret the application of the easement to the facts of a case, as it did here. With regard to (b), the protest is correct in that the citation to Doll’s opening testimony should have been to Doll’s rebuttal testimony at pp. 2-3 where he acknowledges that “the maximal tree height at the ‘belly’ of the lines could range from 12’ to 17’ of maximum tree height. Almond trees have successfully been managed to and farmed at this height in PG&E’s service territory.” The text of the decision and the footnote reference have been corrected accordingly. With regard to (c), the testimony of witness Miller includes his description of how arcing occurs between trees and transmission lines, his acknowledgment that Pacificorp treated five feet as a minimum arcing distance between trees and transmission lines and his statement that he regards a five-foot minimum arcing distance as a best practice.[14] With respect to (d), if public safety requires removal of trees from the Belly Zone then public safety similarly forbids their replanting.