from the District Court of Burleigh County, South Central
Judicial District, the Honorable James S. Hill, Judge.
H. Olson, Minot, N.D., for appellant.
Schuh, Special Assistant Attorney General, North Dakota
Public Service Commission, Bismarck, N.D., for appellee North
Dakota Public Service Commission.
Sanderson (argued), Bismarck, N.D., and Daniel S. Kuntz (on
brief), MDU Resources Group, Inc., Bismarck, N.D., for
appellee Montana-Dakota Utilities Co.
Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Mary
Muehlen Maring, S.J., Dale V. Sandstrom, Acting C.J. The
Honorable Mary Muehlen Maring, S.J., sitting in place of
VandeWalle, C.J., disqualified. Opinion of the Court by
Ronning Kapsner, Justice.
[¶1] Capital Electric Cooperative, Inc.
(" Capital" ), appeals from a judgment affirming a
Public Service Commission order granting Montana-Dakota
Utilities Company (" MDU" ) a certificate of public
convenience and necessity to extend its electric service in
Burleigh County. Because the Commission's order is in
accordance with the law, its findings of fact are supported
by a preponderance of the evidence and sufficiently address
the evidence presented, and those findings support the
conclusions of law, we affirm the judgment.
[¶2] Menard, Inc., is developing a
manufacturing and distribution center near McKenzie, an
unincorporated community located in Burleigh County. Capital,
a rural electric cooperative, and MDU, an investor owned
electric utility, are the only electric suppliers operating
in the general area of the Menard site. Since 1928 MDU,
through its predecessors in interest, has held a franchise
and a certificate of public convenience and necessity issued
by the Commission, then called the Board of Railroad
Commissioners, to serve the McKenzie community. The
certificate of public convenience and necessity allows MDU
service to the eastern boundaries of McKenzie, which is
immediately northeast of and adjacent to the Menard site.
Capital serves rural customers adjacent to the site. MDU
serves 28 customers within a onemile radius of the Menard
site and 29 customers within a two-mile radius. Capital
serves four customers within a onemile radius of the Menard
site and 11 customers within a two-mile radius.
[¶3] In October 2013, Menard requested
estimated rates from Capital and MDU based on the anticipated
load at its site of approximately 1.2 MW and an estimated
annual consumption of 7 million kWh. Both MDU and Capital
would need to construct extensions to provide three-phase
electric supply lines to serve the Menard site. MDU estimated
the total annual estimated cost to Menard would be
$513,669.84 while Capital estimated the cost would be
$575,883.84. Menard requested service from MDU based on
present and future cost savings, reliability of service, and
the Commission's regulatory oversight over rates and
[¶4] In November 2013, MDU applied to the
Commission to extend electric service to the Menard site.
Capital filed a protest and requested a hearing. Following a
public hearing, the Commission, in a two-to-one decision,
decided to grant MDU a certificate of public convenience and
necessity and allow the company to provide electric service
to the Menard site. In a nine-page decision consisting of 34
findings of fact, the Commission explained:
34. The Commission finds that public convenience and
necessity reasonably requires approval of
Montana-Dakota's application because:
o The customer prefers electric service from Montana-Dakota
as it results in more than $60,000 in annual cost savings and
better meets the customer's needs;
o Montana-Dakota has served customers in the area since
1928 and has more customers within a onemile and two-mile
radius of the location;
o Montana-Dakota's substation is located closer to the
Menard Site providing less voltage drop and less line length
on which a fault could occur;
o The proposed extension of Montana-Dakota's three-phase
system to serve the site is shorter than the proposed
extension of Capital Electric's three-phase system.
o Montana-Dakota will serve the Menard Site more economically
when considering both the cost to extend service and the
annual costs to the customer as reflected in rates for
o Montana-Dakota's extension of service would best serve
the community of McKenzie and realize significant cost
savings to Menard, Inc., therefore best serving orderly and
economic development of the area.
district court affirmed the Commission's order.
[¶5] Capital argues the Commission erred in
granting MDU a certificate of public convenience and
necessity to provide electric service to the Menard site.
[¶6] In North Cent. Elec. Coop., Inc. v.
N.D. Pub. Serv. Comm'n, 2013 ND 158, ¶¶ 6-7, 837
N.W.2d 138, we explained:
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 must ...