Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Donald L. Jorgensen, Judge.
The opinion of the court was delivered by: Crothers, Justice.
N.D. Supreme CourtDakota Resource Council v. N.D. Public Service Commission, 2012 ND 72
This opinion is subject to petition for rehearing. [Go to Documents ]
[Download as WordPerfect] Concurrence filed.
Opinion of the Court by Crothers, Justice.
[¶1] The Dakota Resource Council ("DRC") appeals a district court judgment affirming a North Dakota Public Service Commission ("PSC") order. DRC argues (1) the PSC's decision was not in accordance with the law and (2) the PSC's conclusions of law and order were not supported by its findings of fact. We affirm.
[¶2] In August 2008, Falkirk Mining Company filed an application with the PSC requesting revision of a surface mining permit. Falkirk proposed changing the postmining use of 428 acres of land from agricultural and industrial use to recreational use. The purpose of the revision was to facilitate the transfer of approximately 730 acres of land from Falkirk to the North Dakota Department of Transportation ("NDDOT"). The NDDOT planned to use the land as mitigation acres to eliminate "no mow" areas within the rights-of-way of the state highway system in McLean County. To implement the mitigation plan, the NDDOT and the North Dakota Game and Fish Department agreed Game and Fish would manage the land as a wildlife management area.
[¶3] In March 2010, the PSC granted the revision subject to the right of adversely affected parties to request a formal hearing. In April 2010, DRC requested a hearing. DRC asserted 86 acres located in noncontiguous parcels throughout the proposed wildlife management area should remain designated for agricultural use. Game and Fish planned to allow local farmers to grow crops on the 86 acres, harvesting 70 percent and leaving the remaining 30 percent standing as food for wildlife.
[¶4] McLean County, the NDDOT and Game and Fish petitioned to intervene. The PSC allowed intervention. In July 2010, the PSC held a public hearing. Several witnesses testified at the hearing including DRC's staff director, the PSC's reclamation division director, Falkirk's environmental manager, the chairman of the McLean County Commission, the director of the NDDOT and the director of Game and Fish. The PSC affirmed its conditional approval of the revision to Falkirk's permit. DRC appealed to the district court. The district court affirmed the PSC's decision.
[¶5] "Courts exercise limited review in appeals from administrative agency decisions under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32." Industrial Contractors, Inc. v. Workforce Safety & Ins., 2009 ND 157, ¶ 4, 772 N.W.2d 582. Under N.D.C.C. § 28-32-49, our standard of review of an agency's decision is the same as the standard applied by the district court under N.D.C.C. § 28-32-46. Industrial Contractors, at ¶ 4. We will not reverse an agency decision unless:
"1. The order is not in accordance with the law. "2. The order is in violation of the constitutional rights of the appellant. "3. The provisions of this chapter have not been complied with in the proceedings before the agency. "4. The rules or procedure of the agency have not afforded the appellant a fair hearing. "5. The findings of fact made by the agency are not supported by a preponderance of the evidence. "6. The conclusions of law and order of the agency are not supported by its findings of fact. "7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant. "8. The conclusions of law and order of the agency do ...