Minn-Kota AG Prods., Inc. v. N.D. Pub. Serv. Comm'n

• Citation: 938 N.W.2d 118
• Decision Date: 23 January 2020
• Docket Number: No. 20190127,20190127
• Parties: MINN-KOTA AG PRODUCTS, INC., Appellant v. NORTH DAKOTA PUBLIC SERVICE COMMISSION, Dakota Valley Electric Cooperative, Inc., and Otter Tail Power Company, Appellees
• Court: North Dakota Supreme Court

938 N.W.2d 118

MINN-KOTA AG PRODUCTS, INC., Appellant

v.NORTH DAKOTA PUBLIC SERVICE COMMISSION, Dakota Valley Electric Cooperative, Inc., and Otter Tail Power Company, Appellees

No. 20190127

Supreme Court of North Dakota.

Filed January 23, 2020

Loren L. Hansen, Minneapolis, MN, for appellant.

Zachary E. Pelham, Special Assistant Attorney General, Bismarck, ND, for appellee North Dakota Public Service Commission.

Kimberly J. Radermacher, LaMoure, ND, for appellee Dakota Valley Electric Cooperative, Inc.

VandeWalle, Justice.

[¶1] Minn-Kota Ag. Products, Inc. appealed from a district court order dismissing Minn-Kota’s appeal of findings of fact, conclusions of law and order issued by the North Dakota Public Service Commission (PSC) for lack of standing and affirming an administrative law judge’s (ALJ) order denying Minn-Kota’s petition to intervene. Minn-Kota argues it has standing to appeal the PSC’s decision because it participated in the proceedings before the PSC, and the PSC’s decision should be reversed because it is not supported by the facts or law. In the alternative, Minn-Kota argues the case should be remanded to the PSC and it should be allowed to intervene and introduce additional evidence into the record. We affirm in part and reverse in part.

I

[¶2] In 2017, Minn-Kota began construction of a large, $20 million grain handling facility near the municipalities of Barney and Mooreton, North Dakota. Given its size, the facility needed to be equipped with three-phase electric service to meet its demand requirements. During construction of the facility, Minn-Kota received proposals to provide electric power to the facility from Otter Tail Power Co., an electric public utility, and Dakota Valley Electric Cooperative, a rural electric cooperative. Otter Tail proposed building a distribution substation at the Minn-Kota facility and extending 1,000 feet of underground cable from an existing above-ground transmission line to feed the proposed substation. Dakota Valley proposed improving its existing three-phase infrastructure and extending approximately 4,000 feet of underground cable from the improved, existing infrastructure to the Minn-Kota facility. Minn-Kota determined Otter Tail would provide cheaper and more reliable electric service and chose Otter Tail as its preferred provider.

[¶3] In February 2017, Otter Tail submitted an "Application for Permanent Authority" with the PSC seeking a certificate of public convenience and necessity under N.D.C.C. § 49-03-01 and § 49-03-01.1 as required by an act known as the Territorial Integrity Act codified at N.D.C.C. §§ 49-03-01 to -01.5. Along with Otter Tail’s application, Minn-Kota voluntarily submitted an "Appearance by Customer" expressing its desire for Otter Tail to provide electric power to the facility. However, Minn-Kota did not formally intervene in the proceedings. Rather, it relied on Otter Tail to represent its interests. The PSC issued notice of opportunity for a hearing and served the notice on Dakota Valley, the rural electric cooperative providing service in the area. Dakota Valley protested Otter Tail’s application and requested a hearing. At the request of the PSC, an administrative law judge was appointed to preside as a procedural hearing officer.

[¶4] Because of Dakota Valley’s protest, the PSC issued a notice of hearing identifying ten issues to be considered:

1. From whom does the customer prefer electric service?

2. What electric suppliers are operating in the general area?

3. What electric supply lines exist within at least a two-mile radius of the location to be served, and when were they constructed?

4. What customers are served by electric suppliers within at least a two-mile radius of the location to be served?

5. What are the differences, if any, between the electric suppliers available to serve the area with respect to reliability of service?

6. Which of the available electric suppliers will be able to serve the location in question more economically and still earn an adequate return on its investment?

7. Which supplier’s extended electric service would best serve orderly and economic development of electric service in the general area?

8. Would approval of the applications result in wasteful duplication of investment or service?

9. Is it probable that the location in question will be included within the corporate limits of a municipality within the foreseeable future?

10. Will service by either of the electric supplier in the area unreasonably interfere with the service or system of the other?

[¶5] A hearing on Otter Tail’s application was held in October 2017. Otter Tail and Dakota Valley were represented at the hearing, and each offered evidence and testimony. Testimony was received from representatives and employees of Otter Tail and Dakota Valley and from George Schuler IV, a member of the board of directors and a minority owner of Minn-Kota. Minn-Kota was not a formal party represented at the hearing and, other than the testimony offered by Schuler, Minn-Kota did not contribute to the hearing.

[¶6] In December 2017, the PSC held a work session to contemplate and discuss Otter Tail’s application. At the work session, the PSC expressed concern that Otter Tail’s proposal would result in wasteful duplication of investment and would not best serve orderly and economic development of electric service in the area. The concerns expressed by the PSC at the work session made it clear the PSC was likely going to deny Otter Tail’s application.

[¶7] As a result, Minn-Kota submitted a petition to intervene on February 1, 2018, because it "had a unique perspective on [the] issues before the [PSC], and because Minn-Kota no longer felt that its interest in the issuance of the certificate was sufficiently aligned with or adequately represented by Otter Tail’s appearance before the [PSC] ...." Minn-Kota sought intervention so that it could introduce additional evidence and address the concerns expressed by the PSC during the work session. The ALJ denied Minn-Kota’s petition. The ALJ determined Minn-Kota submitted its petition after the deadline to intervene had passed and Minn-Kota had not shown good cause as to why it should be allowed to intervene late. Minn-Kota requested the ALJ reconsider his decision, and the ALJ again denied Minn-Kota’s request.

[¶8] In March 2018, the PSC issued its findings of fact, conclusions of law and order. The PSC denied Otter Tail’s application finding that although Minn-Kota preferred Otter Tail and Otter Tail would be able to provide more affordable service, both Otter Tail and Dakota Valley would provide reliable service to the facility, extension of service by Dakota Valley would best serve orderly and economic development of electric service in the general area, and extension of service by Otter Tail would result in a wasteful duplication of service and investment. Minn-Kota appealed to district court, challenging the PSC’s decision and the ALJ’s order denying Minn-Kota’s petition to intervene.

[¶9] The district court affirmed the ALJ’s order denying Minn-Kota’s petition and dismissing Minn-Kota’s appeal of the PSC’s decision for lack of standing. The district court agreed with the ALJ’s order and concluded Minn-Kota had not shown good cause "for the delay in filing its Petition to Intervene." Additionally, the district court concluded the "Appearance by Customer" submitted by Minn-Kota and Schuler’s testimony at the hearing was "more akin to participation as a witness" and, therefore, Minn-Kota had not adequately participated in the proceedings for them to have standing. The district court did not review the merits of the PSC’s decision, but it did state the decision appeared to be a "process of rational application of the facts to the law and that decision would have been affirmed."

II

[¶10] Standing is a question of law, which is reviewed de novo on appeal. Dakota Res. Council v. Stark Cty. Bd. of Cty. Comm'rs , 2012 ND 114, ¶ 5, 817 N.W.2d 373 ; see also Johnson v. Taliaferro , 2011 ND 34, ¶ 9, 793 N.W.2d 804 (stating interpretation of statute is a question of law). We have explained the over-arching concept of standing for justiciability:

The question of standing focuses upon whether the litigant is entitled to have the court decide the merits of the dispute. It is founded in concern about the proper—and properly limited—role of the courts in a democratic society. Without the limitation of the standing requirements, the courts would be called upon to decide purely abstract questions. As an aspect of justiciability, the standing requirement focuses upon whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to justify exercise of the court’s remedial powers on his behalf. The inquiry is two-fold. First, the plaintiff must have suffered some threatened or actual injury resulting from the putatively illegal action. Secondly, the asserted harm must not be a generalized grievance shared by all or a large class of citizens; the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights and interests of third parties.

Shark v. U.S. W. Commc'ns, Inc. , 545 N.W.2d 194, 198 (N.D. 1996) (quoting other cases).

[¶11] An administrative agency "challenging the standing of those seeking a review of its decision.... is a deliberate effort to prevent a judicial review of the agency’s decision," which we do not look favorably upon. Citizens State Bank of Neche v. Bank of Hamilton , 238 N.W.2d 655, 658 (N.D. 1976) ; Reliance Ins. Co. v. Pub. Serv. Comm'n , 250 N.W.2d 918, 924 (N.D. 1977). We have said a narrow or limited construction should not be placed on who may be a party for purposes of appeal or review:

The question of who is a proper party should not be resolved on strict technical grounds which could result in the public being denied the opportunity to question the actions of the governing agency, body or board, as the situation may

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