North Central Electric Cooperative, Inc. v. North Dakota Public Service Commission
2013 ND 158
| N.D. | 2013Background
- Tribunal designated Otter Tail to provide electric service to Sky Dancer Casino on tribal trust land within Turtle Mountain Reservation.
- North Central has been providing service to Sky Dancer since 1998 and performed construction work in Nov 2011.
- Otter Tail began extending service in Dec 2011; Tribe requested service from Otter Tail via resolution.
- PSC concluded it lacked regulatory authority to regulate the Tribe’s choice of utility for tribal-owned facility on tribal land.
- North Central challenged the PSC order as erroneous under ND law; district court and PSC upheld the PSC’s lack of jurisdiction.
- The question is whether tribal sovereignty preempts state regulation in this context and whether PSC findings were properly supported.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PSC has jurisdiction over the Tribe’s choice of utility. | North Central asserts PSC authority under ND law. | Otter Tail/ PSC argue tribal sovereignty precludes PSC regulation. | PSC lacks authority to regulate tribal decision. |
| Whether ND public utility law requires a certificate for extending service to a tribal facility. | North Central sought relief under certificate requirements. | ND law does not apply where tribe regulates itself. | ND certificate requirements do not apply to tribal decisions on tribal land. |
| Whether tribal sovereignty under Montana/exceptions governs this dispute. | Tribe’s sovereignty allows selection of utility without PSC interference. | Tribe’s sovereignty permits regulation over internal matters; Montana exceptions not applicable here. | Tribal sovereignty governs; Montana exceptions do not authorize PSC regulation. |
| Whether the Commission’s findings are supported by the record. | Findings should address North Central’s evidence. | Findings properly reflect the law and record. | Findings supported; no error in review standards. |
Key Cases Cited
- Williams v. Lee, 358 U.S. 217 (1959) (state cannot undermine tribal self-government over reservation matters)
- Montana v. United States, 450 U.S. 544 (1981) (Montana exceptions for tribal civil authority over non-Indians on non-Indian fee lands)
- Strate v. A-1 Contractors, 520 U.S. 438 (1997) (tribal court lacks jurisdiction over nonmembers on non-Indian land within reservation)
- South Dakota v. Bourland, 508 U.S. 679 (1993) (limits tribal regulation on lands taken for federal purposes)
- Plains Commerce Bank v. Long Family Land and Cattle Co., Inc., 554 U.S. 316 (2008) (tribal authority over non-Indians on non-Indian fee lands generally limited)
- Atkinson Trading Co., Inc. v. Shirley, 532 U.S. 645 (2001) (tribe lacks authority to impose hotel occupancy tax on non-Indians on non-Indian fee land)
- Nevada v. Hicks, 533 U.S. 353 (2001) (tribal ownership alone not enough for tribal regulatory authority over nonmembers)
- Baker Elec. Coop., Inc. v. Public Serv. Comm’n, 451 N.W.2d 95 (1990) (tribe’s regulatory authority depends on context; Baker discussed tribe’s standing and sovereignty)
- Devils Lake Sioux Indian Tribe, 896 F.Supp. 957 (1995) (federal court recognized tribal sovereignty to contract for provision of service on reservation)