Baker Elec. Co-op., Inc. v. Chaske, s. 93-1696

Citation28 F.3d 1466
Decision Date01 July 1994
Docket Number93-1699,Nos. 93-1696,93-1995 and 93-1701,s. 93-1696
PartiesBAKER ELECTRIC COOPERATIVE, INC., a North Dakota Rural Electric Cooperative Association, Appellant, v. Joseph CHASKE, member of the Devils Lake Sioux Tribe Tribal Utilities Commission; Myra Pearson, member of the Devils Lake Sioux Tribe Tribal Utilities Commission; Oliver Gord, Sr., member of the Devils Lake Sioux Tribe Tribal Utilities Commission; Dr. Merrill Berg; Harold McGowan, President and member of the Devils Lake Sioux Tribe Tribal Utilities Commission, Appellees. SHEYENNE VALLEY ELECTRIC COOPERATIVE, INC., Appellant, v. DEVILS LAKE SIOUX INDIAN TRIBE; Joseph Chaske; Myra Pearson; Oliver Gord, Sr.; Dr. Merrill Berg; Harold McGowan, President of the Devils Lake Sioux Tribe Tribal Utilities Commission, Appellees. DEVILS LAKE SIOUX INDIAN TRIBE, a federally recognized Indian tribe, Appellant, v. NORTH DAKOTA PUBLIC SERVICE COMMISSION; Leo M. Reinbold, as member of the North Dakota Public Service Commission; Dale V. Sandstrom, as member of the North Dakota Public Service Commission; Bruce Hagen, as member of the North Dakota Public Service Commission; State of North Dakota, Appellees. Otter Tail Power Company, Amicus Curiae. OTTER TAIL POWER COMPANY, a Minnesota corporation, Appellant, v. Bruce HAGEN, member of the North Dakota Public Service Commission; Leo M. Reinbold, member of the North Dakota Public Service Commission; Dale V. Sandstrom, member of the North Dakota Public Service Commission, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Larry M. Baer, Cando, ND, argued, for appellant.

Mason Morisset, Seattle, WA, argued, for appellee.

Before McMILLIAN, WOLLMAN, and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

On appeal are four consolidated cases each relating to a dispute involving the rights to buy, sell, and regulate electric services on the Fort Totten Devils Lake Sioux Indian Reservation (Reservation). These appeals raise issues involving tribal sovereign immunity, the propriety of the district court's rescission of a temporary restraining order, and res judicata. We reverse and remand with instructions.

I. BACKGROUND
A. The Parties

The parties to the dispute are: the Devils Lake Sioux Indian Tribe (the Tribe) and members of the Devils Lake Sioux Tribe Tribal Utilities Commission (Tribal Utilities Commission); Otter Tail Power Company (Otter Tail); the North Dakota Public Service Commission (NDPSC) and its members; and two rural electric cooperative associations (collectively the RECs)--namely, Baker Electric Cooperative, Inc. (Baker Electric), and Sheyenne Valley Cooperative, Inc. (Sheyenne Valley).

The Tribe consists of members of the Devils Lake Sioux Band who occupy the Reservation. The Reservation, which was established pursuant to the Treaty with the Sioux-Sisseton and Wahpeton Bands, 15 Stat. 505 (1867), reprinted in C. Kappler, II Indian Affairs: Laws and Treaties 956 (2d ed. 1904) (1867 Treaty), comprises over 240,000 acres of land in northeast North Dakota. Land on the reservation is owned in four ways: (1) by the United States Government in trust for the Tribe (tribal trust land), (2) by the Tribe, (3) in fee by members of the Tribe, and (4) in fee by nonmembers of the Tribe. The Tribal Council, whose members are elected by the Tribe, governs Tribal affairs on the Reservation. The members of the Tribal Utilities Commission enforce the Tribal Utilities Code. The Tribe seeks to assert exclusive regulatory jurisdiction over electric services to its facilities on tribal trust land and throughout the Reservation in general.

Otter Tail is an investor-owned electric utility that operates in North Dakota. Otter Tail, or its predecessor in interest, has provided electricity to the Reservation for over sixty years. Otter Tail owns both transmission and distribution facilities on the Reservation. Otter Tail does not dispute that its operations outside of the Reservation in North Dakota are subject to regulation by NDPSC. See N.D.Cent.Code Sec. 49-02-01 (Supp.1993). Otter Tail presently provides electricity to Dakota Tribal Industries (DTI), a corporation chartered and owned by the Tribe and located on tribal trust land. Otter Tail seeks to provide electric services to the Reservation subject to the exclusive regulatory authority of the Tribe.

NDPSC is a state regulatory commission consisting of three constitutionally elected members, N.D. Const. art. V, Sec. 12, who are authorized under Title 49 of the North Dakota Century Code to regulate investor-owned electric utilities such as Otter Tail. NDPSC seeks to subject Otter Tail to its regulatory jurisdiction on the Reservation and to prevent the Tribe from limiting its regulatory authority on the Reservation.

Baker Electric and Sheyenne Valley are rural electric cooperative associations that provide electric services to various portions of North Dakota. See N.D.Cent.Code Secs. 10-13-01 to -05 (1985 & Supp.1993). Baker Electric and Sheyenne Valley serve both tribal and non-tribal members on the Reservation. The RECs seek to supply electric services to additional locations on the Reservation and to prevent the Tribe from subjecting them to the Tribe's regulatory authority on the Reservation.

B. The Litigation

These appeals involve the interplay and possible overlap between the sovereign jurisdictions of the Tribe--acting through the members of the Tribal Utilities Commission--and the State of North Dakota--acting through the members of NDPSC--with respect to regulation of electric services on the Reservation. Both the Tribe and NDPSC seek to exercise exclusive regulatory authority over electric services on the Reservation. Otter Tail supports the Tribe and recognizes the Tribe as the exclusive regulatory authority on the Reservation. The RECs seek to prevent the Tribe from exercising regulatory authority on the Reservation. We turn to the specific facts underlying these appeals.

In September 1988, the Tribal Council selected Otter Tail to provide electricity for DTI. Otter Tail filed notice with NDPSC that it intended to extend electric services to DTI. NDPSC notified Otter Tail that it alone had jurisdiction and that Otter Tail should formally apply to NDPSC for a certificate of public convenience and necessity.

Baker Electric, which also sought to provide electricity to DTI, discovered that Otter Tail had begun to provide electric services to DTI before NDPSC had issued Otter Tail a certificate of public convenience and necessity. In November 1988, Baker Electric filed a protest with NDPSC and requested that NDPSC hold Otter Tail in contempt. In April 1989, NDPSC issued Otter Tail a show cause order and scheduled a hearing for later in that month. In response, Otter Tail petitioned the state district court for a writ of prohibition against any proposed action by NDPSC. The state district court granted the writ of prohibition. The North Dakota Supreme Court lifted the writ of prohibition and assumed supervisory jurisdiction over whether NDPSC had jurisdiction over electric services to DTI. See In re Application of Otter Tail Power Co., 451 N.W.2d 95, 97 (N.D.1990). In May 1989, after the North Dakota Supreme Court lifted the writ of prohibition, NDPSC determined that it had jurisdiction to regulate electric service to DTI.

The North Dakota Supreme Court then analyzed NDPSC's jurisdictional determination and, in January 1990, held that Otter Tail lacked standing to raise the rights of the Tribe. Id. at 98. After deciding jurisdictionally that Otter Tail lacked third-party standing to raise the Tribe's rights, the North Dakota Supreme Court nevertheless proceeded to decide on the merits that the Tribe had no sovereign right to regulate electricity use on the Reservation. Id. at 98-107. Justice Levine concurred in the majority's result based on Otter Tail's lack of standing to raise the rights of the Tribe, id. at 107-08, and noted that the majority had "ranged far and wide in answering broad questions about the authority of the Tribe" that were not before the court, id. at 108.

Thereafter, in July 1990, the Tribal Council enacted the Tribal Utilities Code, which asserts extensive regulatory authority over electric services within the historic exterior boundaries of the Reservation. In response to the Tribal Council's enactment of the Tribal Utilities Code, Baker Electric and Sheyenne Valley brought suit against the members of the Tribal Utilities Commission. Nos. 93-1696, 93-1699 Baker Electric Coop. v. Joseph Chaske (Suits 1 & 2, Nos. 93-1696, 93-1699, Baker Electric v. Chaske ). The RECs argue that the Tribe lacks regulatory jurisdiction over electric utilities doing business within the exterior boundaries of the Reservation. The RECs sought prospective injunctive relief against the individual members of the Tribal Utilities Commission to prevent them from exercising the authority invested in them by the Tribal Utilities Code. The district court dismissed the RECs' suits because the sovereign Tribe had not consented to the suits, and therefore the district court lacked jurisdiction.

In August 1990, NDPSC ordered Otter Tail to discontinue service to DTI. The Tribe filed suit against NDPSC and its individual members alleging that the Tribe had the right to purchase electricity from the supplier of its choice. No. 93-1995 Devils Lake Sioux Indian Tribe v. North Dakota Pub. Serv. Comm'n (Suit 3, No. 93-1995, Tribe v. NDPSC ). The Tribe requested and, on September 4, 1990, was granted injunctive relief that prevented NDPSC from interfering with its choice of suppliers. See Tribe's App. No. 93-1995, at 23-24 (Sept. 4, 1990 order). The district court later rescinded the September 4, 1990 temporary restraining order (TRO) that prohibited NDPSC from interfering with the Tribe's regulation of electric services on the Reservation.

Meanwhile, Otter Tail also brought suit against the members of NDPSC with...

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