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Voigt v. North Dakota Public Service Commission

Supreme Court of North Dakota

March 30, 2017

Casey Voigt, Appellant
v.
North Dakota Public Service Commission and Coyote Creek Mining Company, L.L.C., Appellees

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

         AFFIRMED.

          Derrick L. Braaten (argued) and JJ W. England (appeared), for appellant.

          Illona A. Jeffcoat-Sacco, for appellee North Dakota Public Service Commission.

          Brian R. Bjella, P.O. for appellee Coyote Creek Mining Company, L.L.C.

          OPINION

          Kapsner, Justice.

         [¶ 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. We affirm.

         I

         [¶ 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 floor" determination:

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 Permit NACC-1302.
6. The alluvium along Coyote Creek is not an alluvial valley floor as defined by subsection 1 of N.D.C.C. Section 38-14.1-02.
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.

         II

         [¶ 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 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 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. 1994)).

         III

         [¶ 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. 38-14.1:

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 ...


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