BOULDER - The city of Boulder filed an appeal in Boulder County District Court pointing out flaws in the Public Utilities Commission's ruling that the commission can stop the city from condemning Xcel Energy Inc.'s (NYSE: XEL) infrastructure in the city's bid to form its municipal utility.

The city contends that it has the authority to determine which property and assets it can acquire and that the commission lacks the power to stop the acquisition of infrastructure. The city also contends that the court has jurisdiction over condemnation proceedings.

The city argues in the filing that the commission overstepped its authority in its rulings, saying that the city's home rule authority gives it the power to condemn Xcel Energy's assets. In the filing, the city names other cases in which other Colorado cities condemned electric utility companies' assets in the past. The city also contends that it has the power to condemn assets outside the city necessary for use by the city and its residents.

In October, the Public Utilities Commission ruled that it should determine which Xcel Energy assets the city may acquire through eminent domain. The commission also asserts that it must rule on the matter before Boulder can file for condemnation.

The city appealed the decision in January, contending that the state constitution grants cities the right to condemn property for a public purpose. It has asked the district court to reverse the commission's ruling.
The commission will file a response the city's latest filing by June 25, commission spokesman Terry Bote said.

Xcel spokeswoman Michelle Aguayo said that the company was still reviewing the city's filing Thursday. The company also will submit an official reply to the court by June 25.

"We believe the PUC review is an essential step, as required by Colorado law, to protect county and other customers as well as to determine how Boulder's plans will impact the statewide electric system," Aguayo said in an email.

The filing Wednesday by the city follows a decision by the Boulder City Council last week to create a municipal electric utility, which paved the way for the city to seek financing to form its own utility. The ordinance establishes the city council as the utility's governing body and also creates a utility advisory board.

In January, the city sent Xcel a notice of its intent to acquire its assets in and around the city, a step required by law to start the process of acquiring property by the power of eminent domain.

Xcel does not want to sell its assets, contending that it can help Boulder reach its goals of a cleaner energy mix faster and more economically than the city can do on its own.