                  United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                              _____________

                              No. 01-2414MN
                              _____________

Northern States Power Company,          *
doing business as Xcel Energy,          *
a Minnesota corporation,                *
                                        *
             Appellee,                  *
                                        * On Appeal from the United
                                        * States District Court
       v.                               * for the District of
                                        * Minnesota.
Federal Transit Administration, an      *
administration of the United States     * [To Be Published]
Department of Transportation; Elwyn *
Tinklenberg, Commissioner of            *
Transportation, individually and        *
officially; Minnesota Metropolitan      *
Council; and State of Minnesota,        *
                                        *
             Appellant.                 *
                                   ___________

                          Submitted: October 18, 2001
                             Filed: November 2, 2001
                              ___________

Before BOWMAN, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.
                          ___________

PER CURIAM.
      This is an appeal from an order of the District Court1 granting a preliminary
injunction. The injunction, granted on the basis of a counterclaim filed by the
defendants (based on Minnesota law), orders the plaintiff, Northern States Power
Company, doing business as Xcel Energy, to relocate, at its own expense, certain
underground power lines and related facilities. The facilities in question are located
under Fifth Street and east of Nicollet Avenue in downtown Minneapolis, and are to
be relocated in connection with the construction of a Light Rail Transit project
sometimes called Hiawatha. Xcel brought this suit in the District Court, alleging
various violations of federal law, but the mandatory preliminary injunction was issued
on the state-law counterclaim.

       Our review is limited in this procedural posture of the case. As to findings of
fact, we may reverse only if we hold the findings clearly erroneous. On the basis of
the preliminary record before us, we see no clearly erroneous finding. The District
Court has found that the work it has ordered can be carried out safely and properly
before a February 2002 deadline. The issues are contested, but the District Court’s
findings are not clearly wrong on the basis of the record before us. In addition, with
respect to the major issue of law in the case, whether state law authorizes the
defendant Minnesota Department of Transportation (MnDOT) to require Xcel to do
this work at its own expense, we conclude, as the District Court did, that MnDOT and
the other state defendants, including the State of Minnesota, are likely to prevail on
the merits. The case is set for trial in March of 2002. Our conclusions are necessarily
tentative, as the District Court explained in its opinion, but for the present we are
satisfied that that Court properly assessed the likelihood of success. The main claims
asserted in the complaint, based on federal law, will also have to be dealt with, of
course, before the merits are finally decided, but the plaintiff, which is the appellant



      1
      The Hon. John R. Tunheim, United States District Judge for the District of
Minnesota.

                                          -2-
here, has not suggested that its likelihood of prevailing on these claims is sufficiently
great to justify a reversal of the preliminary injunction.

       The work that the District Court has ordered is taking place. Xcel moved this
Court for a stay of the preliminary injunction pending appeal, but we denied the
motion, subject to an early setting of the case for oral argument, which has occurred.
The parties need to know where they stand. Time is important. Accordingly, we file
this opinion affirming the preliminary injunction without extended discussion.

       We also believe that the District Court acted within its discretion in weighing
the equities in this matter, with one exception. The Court required only a $50,000
bond of the defendants, which is a token amount in the circumstances of this case.
The issues involved are, principally, two: whether the State has the authority to order
relocation, and, if so, whether the relocation must be at the expense of Xcel. The
second issue will remain to be decided even if the entire relocation work has been
accomplished by the time the trial takes place. Although the State defendants are
likely to prevail on this issue, this is by no means certain. We think the equities
require a much more substantial bond.

       In setting the bond at only $50,000, the District Court observed that “[i]f
plaintiff is found to have been wrongfully enjoined, the Court has no concern
regarding defendants’ ability to pay costs and damages.” Northern States Power Co.
v. Federal Transit Administration, Civil No. 01-295, slip op. 31 n.11 (D. Minn.,
May 24, 2001). Ordinarily, we would accept this judgment. We do not question
either the solvency or the honor of the State of Minnesota, or of any of the state
agencies made defendant in this case. However, at the oral argument, substantial
uncertainties developed about where the money would come from if the State
ultimately had to reimburse the plaintiff for the work. We think this issue should be
faced now. Plaintiff estimates the cost at $8 to $10 million. The Hiawatha Project



                                          -3-
Office estimates $4 to $6 million.2 In the circumstances, it is our firm view that a
more substantial bond should be required, in the amount of $8,000,000, to protect
plaintiff against financial loss in the event it should ultimately prevail on the question
of who must pay for the work.

       Accordingly, the order of the District Court is affirmed, except that the order
is modified to require that the State defendants, some or all of them, must post a bond
in the amount of $8,000,000, for the protection of the plaintiff in the event that the
ultimate determination of law, either by the District Court or by this Court, is that
plaintiff was not obligated to pay for this work, but rather ought to be reimbursed by
the State of Minnesota or one of its agencies. The bond should be submitted to the
District Court and is subject to approval as to form by that Court.

       In accordance with this opinion, the order granting a preliminary injunction is
affirmed, as modified. The case is remanded to the District Court for further
proceedings, as necessary, consistent with this opinion. We direct that our mandate
issue forthwith.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      2
      These numbers come from a letter jointly submitted to the defendant
Metropolitan Council by representatives of Xcel Energy and MnDOT. II Joint
Appendix 643.

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