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North Central Electric Cooperative, Inc. v. North Dakota Public Service Commission

Supreme Court of North Dakota

September 3, 2013

North Central Electric Cooperative, Inc., Appellant
v.
North Dakota Public Service Commission, Otter Tail Power Company, and Turtle Mountain Band of Chippewa Indians, Appellees

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge.

Debra L. Hoffarth, for appellant.

Ryan M. Norrell, Special Assistant Attorney General, for appellee North Dakota Public Service Commission.

Paul R. Sanderson, and Bruce G. Gerhardson (on brief), for appellee Otter Tail Power Company. Tracy L. Vigness Kolb, and Richard A. Monette (on brief), for appellee Turtle Mountain Band of Chippewa Indians.

OPINION

Kapsner, Justice.

[¶ 1] North Central Electric Cooperative appeals from a district court judgment affirming a Public Service Commission order dismissing North Central's complaint against Otter Tail Power Company after the Commission decided it did not have regulatory authority over Otter Tail's extension of electric service to a facility owned by the Turtle Mountain Band of Chippewa Indians on tribal trust land within the Turtle Mountain Indian Reservation. North Central argues (1) the Commission's decision is not in accordance with the law because the Commission has jurisdiction under North Dakota law and (2) the Commission's findings are not supported by a preponderance of the evidence and do not sufficiently address North Central's evidence. We affirm, concluding the Commission did not err in deciding it lacked authority to regulate the Tribe's decision to have Otter Tail provide electric service to a tribal-owned facility on tribal-owned land within the reservation.

I

[¶ 2] After the governing body of the Turtle Mountain Band of Chippewa Indians passed a resolution designating Otter Tail as the electric service provider to the Sky Dancer Casino, a tribal-owned business located on tribal trust land within the Turtle Mountain Indian Reservation, North Central filed a formal complaint against Otter Tail with the Commission, alleging Otter Tail's extension of service to the Sky Dancer Casino without a certificate of public convenience and necessity violated N.D.C.C. ch. 49-03. North Central alleged it had been supplying electric service to the Sky Dancer Casino since December 1998, and North Central provided electric service for construction work at the Sky Dancer Casino after the casino requested electric service for that work in November 2011. North Central claimed it serves seven separately metered service entrances on the Sky Dancer Casino campus, Otter Tail's closest facility to the casino is a transmission line about 1, 000 feet from the casino, Otter Tail's nearest retail customer is three miles from the casino, and Otter Tail began construction of an extension of its electric service to the casino on December 9, 2011, after the Tribe adopted a resolution requesting service from Otter Tail. North Central asserted Otter Tail's transmission lines would bore under State Highway 5 and cross North Central's distribution lines in the area. North Central alleged the Sky Dancer Casino was not located within the corporate limits of any municipality and Otter Tail's proposed service to the casino was a wasteful duplication and would unreasonably interfere with North Central's service system. North Central asked the Commission to enjoin Otter Tail from extending electric service to the Sky Dancer Casino.

[¶ 3] Otter Tail answered, admitting it had begun construction of a system to provide electric service to the Sky Dancer Casino and North Central had been providing electric service to the casino. Otter Tail claimed a certificate of public convenience and necessity under North Dakota law was not required because the Commission did not have regulatory authority over the Turtle Mountain Tribe's determination of the electric service provider for the tribal-owned facility on tribal land within the Turtle Mountain Indian Reservation. Otter Tail moved to dismiss North Central's complaint. North Central responded, claiming the Commission had authority to regulate electric service provided to the casino and seeking summary judgment because Otter Tail admitted beginning construction of facilities for service outside of a municipality without a certificate of public convenience and necessity as required by N.D.C.C. ch. 49-03.

[¶ 4] The parties stipulated that the Sky Dancer Casino is a tribal-owned facility located on tribal trust property, that the Turtle Mountain Tribe passed a November 23, 2011, resolution requesting Otter Tail to provide electric service to the Sky Dancer Casino, that the Tribe has a long-standing tribal utility code, and that the Tribe informed the Commission "the Tribe is aware of this proceeding and... 'confirms that it is exercising its inherent sovereignty to determine which utility will provide electric service to Sky Dancer Casino'" under Devils Lake Sioux Indian Tribe v. North Dakota Pub. Serv. Comm'n, 896 F.Supp. 955 (D.N.D. 1995). The Tribe thereafter intervened for the limited purpose of objecting to the Commission's jurisdiction, asserting the Tribe's inherent sovereignty to determine which utility would provide electric service to the Sky Dancer Casino.

[¶ 5] After hearing oral arguments on the motions, the Commission concluded it lacked regulatory authority over the Tribe's decision to authorize Otter Tail to provide electric service to the tribal-owned casino on tribal trust land within the Turtle Mountain Indian Reservation. The Commission denied North Central's motion for summary judgment and dismissed North Central's complaint. The district court affirmed the Commission's decision.

II

[¶ 6] An appeal from a Commission decision is governed by the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Capital Elec. Coop., Inc. v. City of Bismarck, 2007 ND 128, ¶ 30, 736 N.W.2d 788. As relevant to this appeal, a district court ...


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