(concurring in part, dissenting in part).
The majority opinion upholds the PUC on the (1) Transmission Plant Allocation (2) Construction Work in Progress and (3) Power Pool Sales with which I am in accord. The majority opinion reverses the PUC on the Compensating Bank Balances and Inflation Adjustment. I would uphold the PUC on the Compensating Bank Balances and join with my colleagues in reversing the PUC on the Inflation Adjustment issue.
I do not believe the PUC acted arbitrarily and capriciously or abused its discretion with respect to compensating bank balances. The majority opinion and the trial court take a contrary viewpoint. There is no doubt that there is a three prong test as set forth in the majority opinion. It appears to me that the utility failed to meet its burden of proof and that is what the PUC held. The evidence, which is certainly substantial, upon which the PUC made its findings is essentially as follows:
1. Northwestern National of Minneapolis received a letter from OTP on January 12,1976, which was a part of Exhibit A-21 and which stated: “Withdrawal by the Company of the compensating balances was not legally restricted at December 31, 1975.” (Emphasis supplied). I say that this does not represent a clear legal obligation to maintain a fixed obligation.
2. A letter dated April 21, 1976, from the Citibank states the bank “anticipates” the company “will maintain average balances with us that will bear such relationship to this line of credit and your usage of the line as may be satisfactory to each of us from time to time.” Again, this is not a clear obligation to maintain a fixed obligation; rather, it is an “anticipation” to do so.
3. A letter of the Irving Trust dated December 1, 1975, does not state, on its face, any compensating bank balances.
4. No mention is made of a compensating bank balance in a letter from the Northwestern National Bank of Minneapolis.
5. A loan agreement dated October 15, 1975, between OTP and the State Bank of Burleigh County and the Bank of North Dakota contains no reference to a compensating bank balance.
6. OTP’s president, when questioned about available financing arrangements, testified that Exhibit A-21, which, in part comprised the five points covered above, condoned the testimony of the financial vice-president;- “. . . these credit arrangements are handled on a more informal basis that apparently the public believes.” This is a far cry from the first requirement of the three pronged test that “the company must show that these balances are contractually required.” (Emphasis supplied).
The PUC was entitled to written documentation through OTP’s records and it was not forthcoming. Not one bank official of any finance institution which extended credit to OTP ever testified during the hearing or otherwise presented testimony. Moreover, there was no testimony that the company had actively sought alternative financing arrangements to the maintenance or compensating balances. The PUC had an absolute right, under the evidence, to conclude that OTP had failed to prove that it actually maintained $246,427 in compensating balances.