Application of Otter Tail Power Co.

• Decision Date: 25 January 1990
• Docket Number: No. 890131,890131
• Citation: 451 N.W.2d 95
• Parties: In the Matter of the Application of OTTER TAIL POWER COMPANY for a certificate of Public Convenience and Necessity to Provide Electric Service to Dakota Tribal Industries, Inc., at Fort Totten, North Dakota. BAKER ELECTRIC COOPERATIVE, INC., Petitioner, v. PUBLIC SERVICE COMMISSION, Leo Reinbold, Dale Sandstrom, and Bruce Hagen as members of the North Dakota Public Service Commission, Respondents, and Otter Tail Power Company, Respondent. Civ.
• Court: North Dakota Supreme Court

Page 95

451 N.W.2d 95

In the Matter of the Application of OTTER TAIL POWER COMPANY

for a certificate of Public Convenience and Necessity to

Provide Electric Service to Dakota Tribal Industries, Inc.,

at Fort Totten, North Dakota.

BAKER ELECTRIC COOPERATIVE, INC., Petitioner, v. PUBLIC SERVICE COMMISSION, Leo Reinbold, Dale Sandstrom, and Bruce Hagen as members of the North Dakota Public

Service Commission, Respondents,

and

Otter Tail Power Company, Respondent.

Civ. No. 890131.

Supreme Court of North Dakota.

Jan. 25, 1990.

Ackre & Baer Chartered, Cando, for petitioner; argued by Larry M. Baer.

William W. Binek (argued), Asst. Atty. Gen., Public Service Commission, Bismarck, for respondent Public Service Commission.

R.W. Wheeler (appearance) of Wheeler Wolf, Bismarck, and Katherine E. Sasseville (argued), Gen. Counsel, Otter Tail Power Co., Fergus Falls, for respondent Otter Tail Power Co.

MESCHKE, Justice.

We exercise our supervisory power to determine whether the North Dakota Public Service Commission [PSC] has regulatory authority over electric utilities competing for a service point within an Indian reservation. Under the circumstances here, we conclude that the PSC had jurisdiction.

Dakota Tribal Industries, Inc. [DTI] is a corporation chartered and owned by the Devils Lake Sioux Tribe [Tribe]. DTI has a new manufacturing plant located wholly within the boundaries of the Fort Totten Indian Reservation. On April 12, 1988, the president of DTI applied to Baker Electric Cooperative, Inc. [Baker] for temporary and permanent electric service to its new manufacturing building. Baker, which serves customers on the reservation, accepted the application and extended temporary power for construction purposes.

On September 14, 1988, the Tribe formally adopted the following resolution:

WHEREAS, The Devils Lake Sioux Tribe of Indians acting under a revised Constitution dated May 5, 1960, approved by the Acting Commissioner, Bureau of Indian Affairs, July 14, 1961, and as subsequently amended July 17, 1969, May 3, 1974, April 16, 1976 and May 4, 1981; and

WHEREAS, the Devils Lake Sioux Tribal Council (hereinafter the Tribal Council), as the Governing Body of the Tribe, is empowered to regulate all business activities conducted upon the Devils Lake Sioux Indian Reservation; and

WHEREAS, the regulation of franchise areas and which power company may provide service to a designated area within the confines of the exterior boundaries of the Devils Lake Sioux Indian Reservation is an exercise of tribal self-government and which exercise of is clearly recognized and supported by federal law; and WHEREAS, the Tribal Council has deemed it necessary to exercise its regulatory authority as to service areas and/or franchise areas for electrical power companies or cooperatives which conduct business upon the Devils Lake Sioux Indian Reservation; and

NOW THEREFORE BE IT RESOLVED, that the Tribal Council hereby designates Otter Tail Power Company to provide electrical service to Dakota Tribal Industries.

Otter Tail Power Company [Otter Tail], which also serves customers on the reservation, received a copy of the resolution from the Tribal Council and filed a "Notice of Intent to Extend Service to Dakota Tribal Industries" with the PSC. In that document, Otter Tail took the position that the Tribal Council was "empowered to regulate all business activities conducted upon" the reservation, "which is a federal enclave and/or a sovereign jurisdiction for purposes of determining the civil rights of non-reservation persons doing business with persons on the reservation." Otter Tail requested that the PSC issue a certificate of public convenience and necessity authorizing Otter Tail to serve DTI "if the Commission should find that the actions taken by Otter Tail ... are in accord with the desire of the Devils Lake Sioux Tribe."

In response, the PSC notified Otter Tail that it had jurisdiction and that Otter Tail should formally apply for a certificate of public convenience and necessity. Otter Tail did so and Baker protested. The PSC held a hearing on the application which included the issue of the PSC's authority to act on the matter. At the hearing, a member of the Tribe testified about the authenticity of the tribal resolution and about the location of the service point within the reservation. However, neither the Tribe nor DTI appeared, nor have they participated in these proceedings in any manner.

Before the PSC acted, Baker discovered that Otter Tail had begun supplying electric service to DTI. Baker sought to have the PSC hold Otter Tail in contempt. On April 4, 1989, the PSC issued a show cause order and set a hearing for April 25, 1989. Otter Tail responded by petitioning the district court for a writ of prohibition on April 10, 1989 on the grounds that the PSC lacked jurisdiction over electric service to points on the reservation. The district court granted the writ and scheduled a hearing for May 5, 1989. Baker then moved this court to quash the district court's writ of prohibition and, alternatively, for assumption of original jurisdiction. We treated the motion as an application for a supervisory writ; ordered that the writ of prohibition be suspended insofar as it prohibited the PSC from making findings and reaching a decision on the issues of jurisdiction and of public convenience and necessity; ordered that the PSC not be permitted to proceed against Otter Tail for contempt; and ordered that thereafter the jurisdictional issue be reviewed by this court. On May 15, 1989, the PSC decided, among other things, that it had jurisdiction to regulate electric service to the DTI building on the reservation. We limit our supervisory review to that jurisdictional decision.

STANDING

Otter Tail asserted that assumption of jurisdiction by the PSC would unlawfully interfere with the Tribe's sovereign rights of self-government. However, because the Tribe (which did not appear) was the proper party to press the potential of harm to its governmental interests, we conclude that Otter Tail had no standing to advance the Tribe's self-government interests.

As an aspect of justiciability, the standing requirement focuses upon whether a litigant has alleged such a personal stake in the outcome of the controversy as to justify exercise of the court's remedial powers on the litigant's behalf. State v. Carpenter, 301 N.W.2d 106, 107 (N.D.1980); Trinity Medical Center v. N.D. Board of Nursing, 399 N.W.2d 835, 838 (N.D.1987). A litigant must assert his own legal rights and interests, and cannot claim the legal rights and interests of third parties, unless " 'weighty countervailing policies' " exist. Hovet v. Hebron Public School Dist., 419 N.W.2d 189, 193 (N.D.1988) Otter Tail asserted that the Tribe's failure to appear is irrelevant to the jurisdictional question because in Cotton Petroleum Corp. v. New Mexico, --- U.S. ----, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989), the Supreme Court considered the interests of the Jicarilla Apache Tribe although the tribe was not a party and participated only by way of amicus briefs. Although the Cotton Petroleum Corp. opinion did not say whether standing was questioned in the Supreme Court, we know that the issue was not raised in the state court proceedings. See Cotton Petroleum v. State, 106 N.M. 517, 745 P.2d 1170, 1172 n. 2 (Ct.App.1987). We do not look upon Cotton Petroleum Corp. as helpful on standing.

                [quoting State v. Woodworth, 234 N.W.2d 243, 249 (N.D.1975) ].  The reasons for this limitation on standing are "the avoidance of the adjudication of rights which those not before the Court may not wish to assert, and the assurance that the most effective advocate of the rights at issue is present to champion them."    Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 80, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978).  Otter Tail's argument primarily advanced the Tribe's interests in self-government, the rights of a third party not present
                

In Northern Border Pipeline Co. v. State, 772 P.2d 829 (Mont.1989), a pipeline company attempted to assert that the state's property tax levied on the portion of its pipeline running beneath reservation trust lands impermissibly interfered with the Indian tribes' sovereign rights of self-government. The Montana Supreme Court concluded that although the pipeline company had standing by virtue of its taxpayer status to challenge the property tax imposed on it by the state, the company did "not have standing to assert the Tribes' sovereign right of self-government in doing so." Northern Border Pipeline Co. v. State, supra, 772 P.2d at 836. We agree with the rationale of the Montana Supreme Court. Otter Tail has not postulated sufficiently "weighty countervailing policies" for us to depart from the general rule against third-party standing. See Hovet v. Hebron Public School Dist., supra. We conclude that Otter Tail could not assert the self-government interests of the Tribe to defeat the PSC's authority over Otter Tail's activities.

PSC JURISDICTION

Even assuming that Otter Tail had standing to assert the self-government interests of the Tribe, we nevertheless conclude that the PSC had jurisdiction in this case.

Neither party cited, nor have we discovered, a court decision about state regulatory jurisdiction over electric service within an Indian reservation. ¹ In Application of Otter Tail Power Co., 354 N.W.2d 701 (N.D.1984), this court concluded that federal law did not foreclose the PSC from acting on a request for a certificate of public convenience and necessity to extend electric service to a Bureau of Indian Affairs school within the Turtle Mountain Indian Reservation. However, we did not there consider whether the PSC's exercise of jurisdiction infringed upon the tribal right of self-government. Application of Otter Tail Power Co., supra, 354 N.W.2d at 705-706. That decision does not control this case.

To begin our analysis,...