from the District Court of Dunn County, Southwest Judicial
District, the Honorable Dann Edward Greenwood, Judge.
Zachary E. Pelham (argued) and Meredith L. Vukelic (on
brief), for plaintiff and appellee.
Ariston E. Johnson, Assistant State's Attorney, for
defendant and appellant. Hope L. Hogan, Office of the
Attorney General, for intervenor and appellee.
G. Birst, and Karen S. Prout, Assistant State's Attorney,
Stephanie E. Dassinger, John W. Morrison Jr.,
1] Dunn County appeals from a judgment declaring the
Industrial Commission has exclusive jurisdiction to determine
the location of oil and gas waste treating plants. We affirm,
concluding the County lacks the power to veto the
Commission's approval of the location for an oil and gas
waste treating plant.
2] In August 2013 Environmental Driven Solutions, LLC
("EDS") received a permit from the Commission for a
waste oil treating plant in Dunn County. The permit allowed
EDS "to recycle and treat waste crude oil obtained from
drilling operations, pit oil, swab oil, acid oil, tank
bottoms, oil spills, pipeline breaks, skim oil from saltwater
disposal tanks, and other waste crude oil related to oil and
gas exploration and production." The permit also notes
"treating plants must comply with all applicable local,
state, and federal laws and regulations." Notice of the
hearing on EDS's application was published in the
Bismarck Tribune and in a Dunn County newspaper. Some area
landowners objected in writing to EDS's application, but
representatives of the County did not object or appear at the
3] After EDS began constructing the treating plant, the
County issued notices of "violation and order to abate,
" claiming the treating plant could not be constructed
on the site because the property was zoned "Rural
Preservation, " and "Salt Water Storage Tank &
similar facilities" were not an "allowed use."
EDS applied to the County to rezone the property, but the
County denied the application because its Land Development
Code requires 120 acres to rezone and EDS's property
comprised only 118.58 acres. EDS then applied for a
conditional use permit, but the County denied the
4] EDS brought this action against the County seeking a
declaratory judgment that the Commission, rather than the
County, had jurisdiction to determine the siting of its
treating plant. The Commission was allowed to intervene in
the proceedings. The district court granted summary judgment,
concluding the Commission had exclusive jurisdiction to
determine the location of the oil and gas waste treating
plant and the County's zoning ordinances were preempted
by state law.
5] The County argues the district court erred because the
Commission does not have the power to permit oil waste
treating facilities that are barred by a county's
"properly-enacted zoning ordinance and land use
6] We review summary judgments in declaratory judgment
actions under the same standard as other cases. See
Ramsey Cty. Farm Bureau v. Ramsey Cty., 2008 ND 175, ¶
5, 755 N.W.2d 920. In State ex rel. Stenehjem v.