from the District Court of Burleigh County, South Central
Judicial District, the Honorable Bruce A. Romanick, Judge.
Derrick L. Braaten (argued) and JJ W. England (appeared), for
A. Jeffcoat-Sacco, for appellee North Dakota Public Service
R. Bjella, P.O. for appellee Coyote Creek Mining Company,
1] Casey Voigt appeals from a judgment affirming the Public
Service Commission's ("Commission") order that
affirmed its conditional approval of a surface coal mining
permit for Coyote Creek Mining Company, L.L.C.
("Company"). We conclude the Commission's order
complied with applicable law requiring identification and
protection of "alluvial valley floors" and
sufficiently addressed Voigt's evidence. We further
conclude that the Commission's conclusions of law
regarding the lack of "alluvial valley floors"
within or adjacent to the permit area is supported by the
findings of fact and that a reasoning mind reasonably could
have determined the Commission's findings of fact were
proved by the weight of the evidence from the entire record.
2] Casey Voigt owns several thousand acres of land to the
west of Coyote Creek in Mercer County, which he and his
family have ranched for decades. His homestead is immediately
to the west of Coyote Creek in Section 31 of Township 143N,
Range 88W ("Section 31"). In December 2010, Voigt
and his wife, represented by an attorney, entered into a
surface and coal lease agreement covering approximately 3,
509 acres of land, which granted the right to mine their land
and provided for various compensation.
3] In November 2013, the Company, a subsidiary of The North
American Coal Corporation, applied for a surface coal mining
permit for a new mine located about ten miles southwest of
Beulah. The Company's permit application covers
approximately 8, 092 acres of land in Mercer County, an area
including Coyote Creek. In October 2014, the Commission
conditionally approved Permit No. NACC-1302 to allow the
Company to engage in surface mining operations at the Coyote
Creek Mine, subject to the right of interested persons to
request a formal hearing on its decision. Relevant to this
appeal, the permit made the following "alluvial valley
Finding No. 5. The proposed mining operations will not
interrupt, discontinue, or preclude farming on alluvial
valley floors that are irrigated or naturally sub-irrigated
or materially damage the quantity or quality of water in
surface or underground water systems that supply these
alluvial valley floors [NDCC 38-14.1-21(3)(e)].
Based on an examination of the geologic and geomorphic
characteristics, soils, land use, and the water quality and
quantity of streams occurring within or adjacent to the
permit area, it has been determined that there are no
alluvial valley floors within or adjacent to the permit area.
In addition, portions of Coyote Creek near the permit area
were previously evaluated for alluvial valley floor potential
and Commission staff determined that this creek does not have
the characteristics to be considered an alluvial valley
floor. Detailed alluvial valley floor investigation reports
and determinations are on file with the Commission.
4] In November 2014, Casey Voigt requested an administrative
hearing before the Commission regarding its conditional
approval of the permit allowing the Company to begin
construction of the new mine, situated on the Voigts'
land. Voigt and his wife own or lease much of the land in the
eastern half of the permit area. In requesting a formal
hearing on the permit, Casey Voigt raised concerns regarding
the size of the permit area, the reclamation practices to be
used on the mined land, and his loss of agricultural
production due to mining activities.
5] The Commission held three days of public hearings on the
permit in December 2014 and January 2015. At the hearing,
Voigt argued, among other things, that reclamation of the
land would be difficult without more stringent permit
conditions to protect soil health and prevent compaction.
Relevant to this appeal, Voigt also argued that the Company
and the Commission had failed to take required steps to
adequately identify and protect "alluvial valley
floors" on his property, essentially contending alluvium
along Coyote Creek is an "alluvial valley floor, "
as defined under N.D.C.C. § 38-14.1-02(1). Voigt
supported his arguments at the hearing with personal and
expert witness testimony and documentation. Both the
Commission and the Company also presented testimony from
expert witnesses and documentary evidence at the hearing.
6] In April 2015, the Commission entered a final order,
affirming its October 2014 conditional approval of the permit
and providing Voigt some relief regarding reclamation issues.
In its order, the Commission made eighty-two findings of fact
and, on the basis of its findings, made the following
relevant conclusions of law:
1. The Commission has jurisdiction over [the Company's]
planned mining and reclamation operations in North Dakota,
including Permit No. NACC-1302.
2. [The Company's] application for Surface Coal Mining
Permit NACC-1302 meets all permit application standards under
North Dakota Century Code Chapter 38-14.1 and North Dakota
Administrative Code Article 69-05.2.
3. There is no basis for the Commission to rescind or revoke
6. The alluvium along Coyote Creek is not an alluvial valley
floor as defined by subsection 1 of N.D.C.C. Section
7. The Commission does not have any jurisdiction over coal or
surface leasing terms, conditions or practices.
7] Voigt appealed the Commission's decision to the
district court, specifying issues regarding both the
reclamation of the land and the alluvial valley floor
determination. In the district court, however, Voigt argued
only issues relating to the Commission's alluvial valley
floor decision. The district court subsequently entered an
order and judgment, concluding the Commission's decision
was supported by the weight of the evidence from the record
and affirming its conditional approval of the permit.
8] The Administrative Agencies Practice Act, N.D.C.C. ch.
28-32, governs an appeal from a Commission decision.
Capital Elec. Coop., Inc. v. N.D. Pub. Serv.
Comm'n, 2016 ND 73, ¶ 6, 877 N.W.2d 304. We
review the Commission's order in the same manner as the
district court under N.D.C.C. § 28-32-46. Capital
Elec. Coop., ¶ 6. We must affirm the
Commission's order unless:
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of
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
8. The conclusions of law and order of the agency do not
sufficiently explain the agency's rationale for not
adopting any contrary recommendations by a hearing officer or
an administrative law judge.
Id.; see also N.D.C.C. § 28-32-49.
9] The Commission's decision on questions of law is fully
reviewable. Capital Elec. Coop., Inc. v. City of
Bismarck, 2007 ND 128, ¶ 30, 736 N.W.2d 788. In
reviewing the Commission's findings of fact, however, we
do not substitute our judgment for that of the Commission or
make independent findings. Id.; see
Power Fuels, Inc. v. Elkin, 283 N.W.2d 214, 220
(N.D. 1979) ("In construing the 'preponderance of
the evidence' standard to permit us to apply the
weight-of-the-evidence test to the factual findings of an
administrative agency, we do not make independent findings of
fact or substitute our judgment for that of the
agency."). Rather, in reviewing the Commission's
findings of fact, "[w]e determine only whether a
reasoning mind reasonably could have determined that the
factual conclusions reached were proved by the weight of the
evidence from the entire record." Capital Elec.
Coop., at ¶ 31 (quoting Power Fuels, at
220). "This standard defers to the [fact-finder's]
opportunity to hear the witnesses' testimony and to judge
their credibility[, ] and we will not disturb the
agency's findings unless they are against the greater
weight of the evidence." Johnson v. N.D. Dep't
of Transp., 530 N.W.2d 359, 361 (N.D. 1995). We have
also said that "[a]gency expertise is entitled to
appreciable deference if the subject matter is highly
technical." Capital Elec. Coop., 2016 ND 73,
¶ 6, 877 N.W.2d 304 (quoting Cass Cty. Elec. Coop.,
Inc. v. N. States Power Co., 518 N.W.2d 216, 220 (N.D.
10] Voigt argues the Commission erred in affirming the
conditional approval of the coal mining permit for the new
mine located partly on his land. He contends the Commission
failed to follow and enforce North Dakota's surface
mining statutes and regulations that recognize and protect
"alluvial valley floors" in issuing the permit.
11] Statutes governing North Dakota's surface coal mining
and reclamation program are contained in N.D.C.C. ch.
Chapter 38-14.1, N.D.C.C., is part of North Dakota's
surface coal mining and reclamation program established in
accordance with the requirements of the federal Surface
Mining Control and Reclamation Act of 1977
["SMCRA"]. See 30 U.S.C. § 1253. The
North Dakota program makes the [Commission] "the state
regulatory authority for all purposes relating to the Surface
Mining Control and Reclamation Act of 1977." N.D.C.C.
§ 38-14.1-02(4). The [Commission] has several
program-related powers and duties, including "issu[ing]
permits for surface coal mining operations" and
"promulgat[ing] such regulations as may be necessary to
carry out the purposes and provisions of this chapter and the
Surface Mining Control and Reclamation Act of 1977."
N.D.C.C. § 38-14.1-03(10)-(11).
Dakota Res. Council v. N.D. Pub. Serv. Comm'n,
2012 ND 72, ¶ 6, 815 N.W.2d 286.
12] Consistent with SMCRA requirements, N.D.C.C. §
38-14.1-21 provides for surface coal mining permit approval
and denial standards. Section 38-14.1-21(3)(e), N.D.C.C., in
particular, provides for the protection of certain types of
valleys with special ...