Minn-Kota Ag Products, Inc. v. N.D. Public Service Commission

Filed 1/23/20 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 12Minn-Kota Ag Products, Inc., Appellant
v.
North Dakota Public Service Commission,
Dakota Valley Electric Cooperative, Inc.,
and Otter Tail Power Company, Appellees
No. 20190127
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable David E. Reich, Judge.
AFFIRMED IN PART AND REVERSED IN PART.
Opinion of the Court by VandeWalle, Justice.
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.
Minn-Kota Ag Products, Inc. v. N.D. Public Service Commission
No. 20190127
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
1
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?
2
[¶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
3
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
4
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 be. Any doubt on the
question of standing involving a decision by an administrative
body should be resolved in favor of permitting the exercise of the
right of appeal by any person aggrieved in fact.
Generally, parties to an action or proceedings are set out in
the title of the action or proceedings. However, in matters before
administrative agencies it is common to entitle the proceedings “IN
THE MATTER OF ___.” Such entitlement does not serve as an aid
in determining who is a party, except for the applicant, on which
there is no question. The question of who are parties to the
proceedings must be determined from the record rather than from
the entitlement of the proceedings. The information as disclosed
by the record constitutes the basis upon which a determination can
be made as to who are parties to the proceedings.
In re Bank of Rhame, 231 N.W.2d 801, 808 (N.D. 1975) (footnote omitted).
However, the right to appeal does not extend to merely nominal parties who
are not aggrieved. Shark, 545 N.W.2d at 197.
[¶12] Under N.D.C.C. § 28-32-42, any party to a proceeding has standing to
appeal an agency’s decision. A party is defined as “each person named or
5
admitted as a party or properly seeking and entitled as of right to be admitted
as a party.” N.D.C.C. § 28-32-01(9).
[¶13] Prior to the enactment of the statutory definition of a “party,” this Court
set forth a three-part test to determine who may be considered a party to a
proceeding for standing purposes. Bank of Rhame, 231 N.W.2d at 807-08. In
Bank of Rhame we stated, “any person who is directly interested in the
proceedings before an administrative agency who may be factually aggrieved
by the decision of the agency, and who participates in the proceeding before
such agency” is a party and has standing to appeal from the decision of the
agency. Id. at 808. In Shark v. U.S. West Communications, Inc., we held the
enactment of N.D.C.C. § 28-32-01(9) did not overrule the standing doctrine of
Bank of Rhame, and the definition of a “party” in § 28-32-01(9) does not change
who may be considered a party for standing purposes. 545 N.W.2d at 197, 197
n.1. Likewise, this Court has continued to employ the three-part test set forth
in Bank of Rhame. See, e.g., In re Juran & Moody, Inc., 2000 ND 136, ¶¶ 16-
17, 613 N.W.2d 503.
[¶14] Applying the above stated principles and the Bank of Rhame three-part
test, we conclude Minn-Kota has standing to appeal the PSC’s decision.
A
[¶15] By having a preference for Otter Tail as its preferred electric service
provider, Minn-Kota was directly interested in the proceedings before the PSC.
B
[¶16] Minn-Kota was factually aggrieved by the PSC’s decision. To be factually
aggrieved, a party must be injured in some manner. Washburn Pub. Sch. Dist.
No. 4 v. State Bd. of Pub. Sch. Educ., 338 N.W.2d 664, 667 (N.D. 1983) (citing
Bernhardt v. Rummel, 319 N.W.2d 159, 160 (N.D. 1982)). That is, a decision
must enlarge or diminish a party’s interest. Id. (citing Bank of Neche, 238
N.W.2d 655 (N.D. 1976)). But the potential to be factually aggrieved is not
enough; a party must be aggrieved in fact. Id. In other words, a party must
gain or lose something to be aggrieved. Id. Additionally, a mere dissatisfaction
6
or displeasure with a decision is not enough to appeal from such decision. Id.(citing Huber v. Miller, 101 N.W.2d 136, 140 (N.D. 1960)).
[¶17] The district court determined Minn-Kota was factually aggrieved by the
PSC’s decision, and the PSC itself concedes Minn-Kota was aggrieved. Dakota
Valley argues Minn-Kota was not aggrieved by the PSC’s decision because the
PSC found both Dakota Valley and Otter Tail would provide reliable service
and because there is not enough evidence in the record to conclude that Otter
Tail would provide more affordable service to Minn-Kota. Dakota Valley’s
argument is misplaced. Dakota Valley essentially argues that, on the one hand,
the PSC correctly found Dakota Valley would provide reliable service to Minn-
Kota, but on the other hand, the PSC incorrectly found Otter Tail would
provide more affordable service. We are asked to conclude Minn-Kota was not
factually aggrieved by agreeing with the PSC in one instance yet disagreeing
with it in another. Dakota Valley cannot have it both ways.
[¶18] Minn-Kota was aggrieved by the PSC’s decision because Otter Tail,
Minn-Kota’s preferred electric service provider, was denied a certificate of
public convenience and necessity. Additionally, Minn-Kota was aggrieved by
the PSC’s finding that Otter Tail would provide more affordable services to
Minn-Kota, yet still denying Otter Tail’s application. In essence, once the PSC
denied Otter Tail’s application, Minn-Kota lost the ability to have its facility
serviced with more affordable electric service by its preferred service provider.
This rendered Minn-Kota factually aggrieved.
[¶19] However, the fact that Minn-Kota was aggrieved by the PSC’s decision
does not in itself make the PSC’s decision erroneous. An administrative agency
may make a rational decision in which one of the parties bound by that decision
is aggrieved. The PSC made its determination based on public convenience and
necessity, not just that of Minn-Kota. In doing so, the PSC weighed ten factors.
Two of the factors considered by the PSC factually aggrieved Minn-Kota.
Nonetheless, the PSC determined all the factors, taken together as a whole,
weighed against granting Otter Tail a certificate of public convenience and
necessity. Minn-Kota need not be aggrieved by all ten factors or the PSC’s
decision as a whole to be factually aggrieved for purposes of standing. It is
7
immaterial how slight or substantial the aggrievance is for a party to be
aggrieved. Minn-Kota was factually aggrieved by the PSC’s decision.
C
[¶20] Both Dakota Valley and the PSC argue, and the district court
determined, the “Appearance by Customer” submitted by Minn-Kota and the
testimony offered at the hearing by Schuler, a Minn-Kota representative, was
inadequate participation in the proceedings to be considered a party.
Additionally, Dakota Valley and the PSC argue Minn-Kota cannot be
considered a party because it was not represented by legal counsel during the
administrative proceedings. We conclude Minn-Kota adequately participated
in the proceedings.
[¶21] This Court has never explicitly stated in what manner or to what extent
a person must participate to satisfy the participation element of the Bank of
Rhame standing test. But a review of our cases indicates that so long as the
party appealing has a significant or unique stake in the outcome, minimal
participation is sufficient to have adequately participated. A party need not
have been named as a party or have actively engaged in the proceedings to
have participated. See Moody, 2000 ND 136, ¶ 18, 613 N.W.2d 503 (holding
North Dakota Securities Commissioner participated when he was treated as a
party throughout the proceedings); Shark, 545 N.W.2d at 198-99 (holding
telephone company customer did not participate by sending an informal pre-
hearing letter to a single PSC commissioner in which he stated no position on
the matter); Washburn Pub. Sch. Dist. No. 4, 338 N.W.2d at 667 (holding school
district participated in proceedings when president of school board was present
at the hearing where petitioners presented their arguments); O’Connor v. N.
States Power Co., 308 N.W.2d 365, 371 (N.D. 1981) (holding rate payers did not
have standing when they were not involved with proceedings before the PSC);
Bank of Neche, 238 N.W.2d at 659 (holding competing bank had standing to
appeal granting of application even though it did not participate in proceedings
relating to application); Bank of Rhame, 231 N.W.2d at 804 (holding competitor
bank had standing when it appeared through counsel at application hearing);
see also Eckre v. Pub. Serv. Comm’n, 247 N.W.2d 656, 662 (N.D. 1976) (holding
8
landowners who had not participated in proceedings had standing to challenge
PSC decision by writ of mandamus).
[¶22] The “Appearance by Customer” was voluntarily submitted by Minn-
Kota. The document clearly advocated for Minn-Kota’s position on the matter
by asking that the PSC grant Otter Tail’s application and issue a certificate of
public convenience and necessity. Voluntarily submitting such a document into
the record is an action regularly taken by a party to an adversarial proceeding
and is not one taken by a person who does not wish to, in at least some manner,
participate in the proceedings.
[¶23] Schuler’s testimony was not similar to that offered by a typical witness.
Schuler was not subpoenaed and was under no obligation to testify. When
asked why he voluntarily chose to testify, Schuler stated, “I heard about the
situation and, I mean, we saw the figures and, you know, it—I felt it was
necessary to come out here and have you guys hear me and what my thoughts
were.” Moreover, Schuler’s testimony was not limited to the technical figures
or plan of the project. Schuler clearly advocated for a certain result—that Otter
Tail’s application be granted.
[¶24] Besides formally intervening and calling its own witnesses and
submitting its own evidence, Minn-Kota could have done little, if anything, to
have more actively participated in the proceedings. It was not unreasonable
for Minn-Kota to rely on Otter Tail to prudently present evidence supporting
Minn-Kota’s position to the PSC so that the PSC could make an informed
decision.
[¶25] Minn-Kota’s unique personal stake in the outcome of the proceedings
also gives Minn-Kota standing to appeal. If Minn-Kota did not have standing,
it would be subjected to Otter Tail’s willingness to appeal or not appeal the
PSC’s decision. Minn-Kota would also be forced to rely on Otter Tail to
competently litigate the matter. Minn-Kota, not Otter Tail, is in a better
position to appeal given it is the sole customer to whom electric service would
be provided. See In re Otter Tail Power Co., 451 N.W.2d 95, 97 (N.D. 1990).
Denying Minn-Kota the ability to appeal would effectively leave Minn-Kota
9
without a remedy. Such a result would be unjustifiable provided Minn-Kota is
the sole reason for Otter Tail’s application in the first place.
[¶26] Moreover, the PSC’s and Dakota Valley’s argument that Minn-Kota
must participate through legal counsel is without merit. The PSC cites Wetzel
v. Schlenvogt, 2005 ND 190, ¶¶ 11-13, 705 N.W.2d 836, and Blume Constr.,
Inc. v. State ex rel. Job Serv. N.D., 2015 ND 285, ¶ 21, 872 N.W.2d 312, in
support of this argument. Wetzel and Blume relate to court proceedings and
who is authorized to practice law under N.D.C.C. § 27-11-01. Section 27-11-01
provides who is eligible to practice law “in any court of record of this state.”
Minn-Kota and its representative appeared in an administrative proceeding,
not a court of record. Wetzel and Blume, and the underlying statute in which
they are premised on, relate to an entirely different subject matter and in no
way relate to or are persuasive in this case. Rather, the PSC cites the correct
authority for determining who may appear on behalf of a corporation in any
proceeding before the PSC—N.D.A.C. § 69-02-01-05. Under § 69-02-01-05, “an
officer or authorized employee of a corporation” may appear. Adopting the
PSC’s and Dakota Valley’s argument—that a corporation must participate in
the proceedings through an attorney to obtain standing—would lead to an
absurd result. Minn-Kota did not need to be represented by legal counsel in
the administrative proceedings for standing purposes.
[¶27] Minn-Kota is not merely a nominal party and is aggrieved by the PSC’s
decision. Any doubt on whether Minn-Kota has standing should be resolved in
favor of Minn-Kota. Barring Minn-Kota’s appeal on standing grounds would
place a narrow or limited construction on who may be a party for purposes of
appeal or review, which we have long held goes against basic principles of
standing. Minn-Kota satisfied all three elements of the Bank of Rhame test
and has standing to appeal the PSC’s decision. We reverse the district court’s
determination that Minn-Kota lacks standing.
III
[¶28] We have explained our standard for reviewing a decision by the PSC
granting or denying a certificate of public convenience and necessity:
10
An appeal from a Commission decision is governed by the
Administrative Agencies Practice Act, N.D.C.C. ch. 28-32. Capital
Elec. Coop., Inc. v. City of Bismarck, 2007 ND 128, ¶ 30, 736
N.W.2d 788. As relevant to this appeal, a district court must affirm
a Commission order under N.D.C.C. § 28-32-46, unless:
1. The order is not in accordance with the law.
....
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.
In an appeal to this Court from a district court’s decision on
an appeal from a Commission decision, we review the
Commission’s order in the same manner as the district
court. See N.D.C.C. § 28-32-49. The Commission’s decision on
questions of law is fully reviewable. Capital Elec. Coop., 2007 ND
128, ¶ 31, 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).
Capital Elec. Coop., Inc. v. N.D. Pub. Serv. Comm’n, 2016 ND 73, ¶ 6, 877
N.W.2d 304 (quoting N. Cent. Elec. Coop., Inc. v. N.D. Pub. Serv. Comm’n, 2013
ND 158, ¶¶ 6-7, 837 N.W.2d 138). Additionally, “[a]gency expertise is entitled
11
to appreciable deference if the subject matter is highly technical.” Cass Cty.
Elec. Coop., Inc. v. N. States Power Co., 518 N.W.2d 216, 220 (N.D. 1994) (citing
True v. Heitkamp, 470 N.W.2d 582 (N.D. 1991)).
[¶29] Minn-Kota argues the PSC’s findings that Dakota Valley would provide
reliable electric service, Dakota Valley serves more customers within at least
a two-mile radius, and Otter Tail’s proposal would be a wasteful duplication of
services are not supported by the evidence.
A
[¶30] The PSC found:
Otter Tail’s proposal to serve Minn-Kota’s large motor load on a
dedicated circuit from a dedicated substation it will have to
construct may offer a higher level of reliability. However, the
Commission finds that both Otter Tail and Dakota Valley would
provide reliable service to Minn-Kota.
The record supports the PSC’s finding that Otter Tail’s proposal of building a
substation adjacent to the Minn-Kota facility would be more reliable than
Dakota Valley’s proposal. This is because the substation would be on the
facility’s premises and it would only serve the Minn-Kota facility. Therefore,
repair service would be quicker and easier if an electricity outage were to occur.
[¶31] However, the record also indicates Dakota Valley can reliably provide
electricity to the facility through its existing systems and infrastructure.
Dakota Valley’s ability to provide reliable electric service is not negated by the
PSC’s finding that Otter Tail’s proposal may be more reliable. Considering the
differences in reliability between two potential providers does not require the
PSC grant a certificate of public convenience to an applicant who would provide
more reliable service when there is ample evidence that the party opposing the
application can also provide reliable service. These are precisely the
circumstances here. The PSC’s finding that both Otter Tail and Dakota Valley
can provide reliable service is supported by a preponderance of the evidence in
the record.
12
B
[¶32] The PSC found Otter Tail served two customers within a two-mile radius
of the Minn-Kota site, while Dakota Valley served approximately eighteen
customers within a two-mile radius. Minn-Kota argues the two-mile radius
was an arbitrary cutoff, and the PSC should have taken into consideration the
number of customers served by Otter Tail in the larger region. A review of the
record does show that Otter Tail serves more customers within a four-mile
radius of the facility, but this is because a four-mile radius would include the
municipalities of Barney and Mooreton, which are both within Otter Tail’s
service territory.
[¶33] In Capital Electric Cooperative, Inc. v. North Dakota Public Service
Commission, we stated, “the number of customers served by electric suppliers
in the larger vicinity should be considered for assessing capacity requirements
in determining the orderly development of electrical service.” 2016 ND 73, ¶
12, 877 N.W.2d 304. However, in Capital Electric we did not consider the
number of customers beyond a two-mile radius. See id. at ¶ 11. Rather, we
emphasized the number of customers in the larger area should be examined to
ensure there is no wasteful duplication of services. See id. at ¶ 12. Construction
of additional infrastructure by one party to service a single customer when the
opposing party has existing infrastructure in place that services multiple
existing customers, and that can be easily modified or upgraded to provide
service, can be a wasteful duplication of services. See id. at ¶ 15.
[¶34] The record shows Dakota Valley serves more rural customers in the
vicinity of the Minn-Kota facility, and Otter Tail serves more customers in the
municipalities of Barney and Mooreton. For Otter Tail to extend electricity to
the rural area where the Minn-Kota facility is located, it would have to
construct substantial additional infrastructure. Dakota Valley already has
similar infrastructure in place that can be easily modified to satisfy Minn-
Kota’s needs. The PSC’s finding that Dakota Valley serves more customers
within a two-mile radius is supported by a preponderance of the evidence in
the record. Refusing to consider the number of customers beyond a two-mile
13
radius is not erroneous provided with the fact that such a consideration would
support a wasteful duplication of services.
C
[¶35] With regard to wasteful duplication of services, the PSC found:
43. Service by Otter Tail to the Minn-Kota facility would require
construction of a new substation while the existing Mooreton
substation is fully capable of serving the facility.
44. Dakota Valley, and Central Power Electric Cooperative,
have made investments in the Mooreton substation and associated
distribution facilities to serve the general area. Approval of Otter
Tail’s application to serve the Minn-Kota facility would result in
wasteful duplication of service and investment.
[¶36] Any duplication is not necessarily wasteful duplication. See N. States
Power Co. v. N.D. Pub. Serv. Comm’n, 452 N.W.2d 340, 344 (N.D. 1990).
Whether construction of a facility is duplicative or wasteful is one of fact for
the PSC to decide. Id. at 345. This Court has upheld a PSC’s finding that
construction of a new facility would be wasteful when a rural electric
cooperative “had an extensive system in place for the annexed territory, and .
. . extension of electric service into [this territory by an electric public utility]
would constitute an unreasonable duplication of the facilities and services
provided by [the cooperative] in the area.” Id. at 344.
[¶37] Dakota Valley has recently made investments in its infrastructure that
will service the Minn-Kota facility. Otter Tail’s construction of a new
substation and extension of service would be duplicative of the facilities and
services invested in and provided by Dakota Valley in the area. The PSC’s
finding that Otter Tail’s proposal would lead to a wasteful duplication of
investment or service is supported by a preponderance of the evidence in the
record. This finding is further supported by the PSC’s findings that Dakota
Valley serves more customers within a two-mile radius, and Dakota Valley
would best serve orderly and economic development of electric service in the
general area.
14
[¶38] Under our deferential standard of review of agency decisions, we
conclude a reasoning mind could have determined the factual conclusions
reached by the PSC were supported by the weight of the evidence from the
entire record. We do not reweigh or reevaluate the evidence that was presented
at the PSC hearing, and we do not function as a super board and second guess
the PSC’s findings. We conclude the PSC’s decision is supported by a
preponderance of the evidence, and we affirm the PSC’s Findings of Fact,
Conclusions of Law and Order.
IV
[¶39] In the alternative, Minn-Kota argues it should be allowed to intervene
and submit new evidence into the record for the PSC’s consideration. We
review an ALJ’s decision under the same standard of review as we review an
agency’s decision. In re Juran and Moody, Inc., 2000 ND 136, ¶ 22, 613 N.W.2d
503. We give deference to an ALJ’s findings of fact and review an ALJ’s legal
conclusions under a de novo standard of review. Id. at ¶¶ 23-24. We apply a
similar standard when reviewing whether a party may intervene under
N.D.R.Civ.P. 24(a). See Eichhorn v. Waldo Twp. Bd. of Supervisors, 2006 ND
214, ¶ 13, 723 N.W.2d 112 (applying a clearly erroneous standard for findings
of fact and a de novo standard for the ultimate question of whether a party has
a right to intervene).
[¶40] Under N.D.C.C. § 28-32-28:
An administrative agency may grant intervention in an
adjudicative proceeding to promote the interests of justice if
intervention will not impair the orderly and prompt conduct of the
proceeding and if the petitioning intervenor demonstrates that the
petitioner’s legal rights, duties, privileges, immunities, or other
legal interests may be substantially affected by the proceeding or
that the petitioner qualifies as an intervenor under any provision
of statute or rule. . . . An administrative agency may adopt rules
relating to intervention in an adjudicative proceeding.
Under § 28-32-28, the PSC adopted the following rule for intervention in a
proceeding before the agency:
15
Any person with a substantial interest in a proceeding may
petition to intervene . . . . An intervention may be granted if the
petitioner has a statutory right to be a party to the proceeding; or
the petitioner has a legal interest which may be substantially
affected by the proceeding, and the intervention would not unduly
broaden the issues or delay the proceeding.
....
A petition to intervene in any proceeding must be filed at least ten
days prior to the hearing, but not after except for good cause shown.
N.D.A.C. § 69-02-02-05 (emphasis added).
[¶41] In civil legal proceedings, N.D.R.Civ.P. 24 allows for intervention “on
timely motion.” Intervention has historically been liberally granted in North
Dakota. Eichhorn, 2006 ND 214, ¶ 13, 723 N.W.2d 112. Even though liberally
granted, post-judgment intervention is “‘unusual and not often granted.’”
Brigham Oil & Gas, L.P. v. Lario Oil & Gas Co., 2011 ND 154, ¶ 40, 801
N.W.2d 677 (quoting Quick v. Fischer, 417 N.W.2d 843, 845 (N.D. 1988)).
Certain considerations must be taken into account in deciding whether to grant
a post-judgment motion for intervention:
The most important consideration in deciding whether a
motion for intervention is untimely is whether the delay in moving
for intervention will prejudice the existing parties to the case. If
prejudice is found, the motion will be denied as untimely.
Conversely, the absence of prejudice supports finding the motion
to be timely . . . . Delay is not the only possible form of prejudice to
the existing parties, but if the intervention will not delay the
termination of the litigation intervention ordinarily will be
allowed.
Brigham Oil & Gas, at ¶ 40.
[¶42] Unlike N.D.R.Civ.P. 24, N.D.A.C. § 69-02-02-05 provides an explicit time
frame for seeking to intervene—at least 10 days prior to the hearing. However,
if a potential intervenor shows good cause, intervention may be allowed after
the 10 day deadline. We note here that a showing of good cause under N.D.A.C.
16
§ 69-02-02-05(2) should not be interpreted to mean a showing of good cause for
the delay in petitioning to intervene. Rather, “good cause” should be
interpreted to mean a showing of good cause as to why a petitioning intervenor
should be allowed to intervene late under the circumstances.
[¶43] We have never stated what constitutes “good cause” under N.D.A.C. §
69-02-02-05. But our cases on post-judgment intervention under N.D.R.Civ.P.
24 are analogous and provide guidance on what may constitute “good cause.”
[¶44] This Court has granted post-judgment intervention to protect legal and
property interests. See, e.g., Quick, 417 N.W.2d at 845. On the other hand, we
have denied intervention sought months after judgment was entered when the
petitioning party had notice of the proceedings, was present at court hearings,
gave no explanation for the delay in seeking intervention, and was attempting
to relitigate issues resolved in the main action rather than raising important
policy issues. Brigham Oil & Gas, 2011 ND 154, ¶ 42, 801 N.W.2d 677. Under
such circumstances, allowing intervention would have interfered with the
orderly processes of the court, would have required withdrawal of the appeal,
relitigation of the issues, and caused other expensive delays to the existing
parties. Id.[¶45] Minn-Kota filed its petition to intervene on February 1, 2018—over 100
days after the October, 2017, hearing on Otter Tail’s application. Minn-Kota
did not give a reason for the delay, other than Minn-Kota felt it “had a unique
perspective on these and other issues before the Commission, 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 Commission . . . .” Minn-Kota argued it had shown good cause
because it had a “substantial interest” in the outcome of the proceedings and
because it would be “substantially affected” by the PSC’s decision. The ALJ
denied Minn-Kota’s petition to intervene finding Minn-Kota’s and Otter Tail’s
interests were sufficiently aligned, Minn-Kota and Otter Tail had made many
of the same arguments throughout the proceedings, Minn-Kota’s interests had
been adequately represented by Otter Tail and by Minn-Kota’s representative
who testified at the October hearing, and the issues had been substantially and
17
thoroughly laid out for the PSC to make a reasoned and intelligent decision.
Moreover, the ALJ concluded Minn-Kota did not show good cause as to why it
should be allowed to intervene.
[¶46] Even though intervention is liberally granted, we agree with the ALJ’s
findings and conclusion that Minn-Kota did not show good cause as to why it
should be allowed to intervene late. It is certainly true that Minn-Kota’s
interests are “substantially affected” by the PSC’s decision. But Minn-Kota has
not provided a compelling argument on how Otter Tail did not adequately
represent its interests at the October hearing or throughout the entirety of the
proceedings. Minn-Kota’s readily apparent purpose for seeking to intervene
was to offer additional information to address concerns expressed by the PSC
during the December 20, 2017, work session. Otter Tail presented sufficient
information at the October hearing for the PSC to make an intelligent and
informed decision. Any additional information offered by Minn-Kota after the
December 20 work session would have been tailored to the PSC’s concerns.
Allowing a party to present evidence after it has been provided with insight on
how an agency is likely to decide would circumvent the administrative process
and the adversarial system in place for such matters. Both Dakota Valley and
the PSC would have incurred additional time and expense in rebutting and
considering additional evidence presented by Minn-Kota if it had been allowed
to intervene. This after all parties involved in the matter had already invested
significant time and expense throughout the proceedings.
[¶47] Contrary to its argument, Minn-Kota would not have been the only party
prejudiced from a delay if it had been allowed to intervene; every party to the
action would have been impacted and prejudiced by the additional time and
expense incurred. Minn-Kota has not shown good cause or that allowing it to
intervene late would promote the interests of justice. We affirm the ALJ’s
denial of Minn-Kota’s petition to intervene and the district court’s order.
18
V
[¶48] The district court’s order is affirmed in part and reversed in part, and
thus the order of the PSC is affirmed.
[¶49] Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Jon J. Jensen, C.J.
19