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Environmental Law & Policy Center, et al. v. N.D. Public Svc. Commission, et al.

Docket No. 20190220
Oral Argument: Tuesday, November 12, 2019 9:00 AM

Docket Info

Title
Environmental Law & Policy Center
and Dakota Resource Council, Appellants
v.
North Dakota Public Service Commission
and Meridian Energy Group, Inc., Appellees
Case Type
CIVIL APPEAL : ADMINISTRATIVE PROCEEDING
Appeal From
Case No. 2018-CV-02937
South Central Judicial District, Burleigh County
Bruce A. Romanick

Parties' Statement of Issues

  • Appellant

    Did the Public Service Commission violate the “fair hearing” and other requirements of the Administrative Agency Practice Act (AAPA) when it summarily dismissed a complaint it had already found stated a prima facie case:
    A. Without allowing complainants any opportunity for discovery;
    B. Without conducting an evidentiary hearing; and
    C. Without considering any evidence other than a single affidavit proffered by the defendant, which contradicted the defendant’s previous statements?

  • Appellee 1

    The overarching issue in this case is whether PSC had subject matter jurisdiction over Meridian Energy Group, Inc. (Meridian) such that PSC had authority under the Administrative Agencies Practice Act (AAPA) (N.D.C.C. ch. 28-32) to order Environmental Appellants’ ultimate requested relief of an AAPA hearing and discovery.

  • Appellee 2

    The issues on appeal, as stated in Appellants’ specifications of error to the District Court for the County of Burleigh, South Central Judicial District (the “District Court”), are whether the North Dakota Public Service Commission (“PSC”) failed to provide a fair hearing and follow the requirements of the Administrative Agencies Practice Act (“AAPA”), N.D.C.C. § 28-32-46, by declining Appellants’ request for discovery and dismissing their Complaint without an evidentiary hearing for lack of subject matter jurisdiction under N.D.C.C. § 49-22.1-01, et seq. (the “Siting Act”).


Summary

Environmental Law and Policy Center and Dakota Resource Council (“Appellants”) appeal from a district court judgment affirming a North Dakota Public Service Commission (“PSC”) order dismissing their complaint for lack of subject matter jurisdiction.

This appeal arises out of Meridian Energy Group, Inc.’s construction of a new oil refinery in Billings County near the Theodore Roosevelt National Park. In June 2018, Appellants filed a complaint with the PSC alleging Meridian was required to obtain a certificate of site compatibility from the PSC under North Dakota law because the planned facility would have a capacity of refining 50,000 or more barrels per day (bpd). Meridian moved to dismiss the complaint for lack of subject matter jurisdiction asserting the refinery would be built in a single phase with a capacity of 49,500 bpd, falling outside of the PSC statutory jurisdictional threshold of 50,000 bpd. The PSC granted Meridian’s motion. Appellants appealed to the district court, which affirmed the PSC’s decision.

On appeal, Appellants argue the PSC failed to provide a fair hearing and follow the requirements of the Administrative Agencies Practice Act when it did not allow them an opportunity for discovery and summarily dismissed their complaint without an evidentiary hearing.


Briefs

Filing Date Description
08/26/2019 APPELLANT BRIEF View
09/25/2019 APPELLEE BRIEF - Meridian Energy Group View
10/09/2019 REPLY BRIEF View

Counsel

Party Type Name
APPELLANT PRIVATE PRACTICE Derrick Lance Braaten - 06394
APPELLEE PRIVATE PRACTICE Lawrence Bender - 03908
APPELLANT PRIVATE PRACTICE JJ William England - 08135
APPELLEE ATT. GENERAL OFFICE Jennifer Leigh Verleger - 06732
APPELLANT PRIVATE PRACTICE Not Licensed in ND - 00002
APPELLEE ATT. GENERAL OFFICE John Maurice Schuh - 08138

(Note: Attachments may not be available for recently filed cases and/or confidential documents.)

Seq. # Filing Date Description Attachment
1 07/15/2019 NOTICE OF APPEAL : 07/15/2019
2 07/15/2019 NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV.
3 07/16/2019 Notice served on Derrick L. Braaten, JJ W. England, Illona A. Jeffcoat-Sacco, John M. Schuh, cont.
4 07/16/2019 Jennifer L. Verleger and Lawrence Bender
5 07/20/2019 ELECTRONIC MEETING TRANSCRIPT DATED DEC 19, 2017
6 07/20/2019 ELECTRONIC MEETING TRANSCRIPT DATED SEPT. 17, 2018
7 07/20/2019 ELECTRONIC MEETING TRANSCRIPT DATED OCTOBER 10, 2018
8 08/13/2019 ELEC. RECORD ON APPEAL DATED AUGUST 12, 2019 (ENTRY NOS.1-167, not including #8)
9 08/15/2019 AMENDED ELEC. RECORD ON APPEAL DATED AUGUST 14, 2019 (ENTRY NOS. 1-168, not including #8)
10 08/26/2019 Affidavit of Scott Strand in support of Admission to Practice Pro Hac Vice
11 08/26/2019 Affidavit of Rachel Granneman in support of Admission to Practice Pro Hac Vice
12 08/26/2019 APPELLANT BRIEF View
13 08/26/2019 APPELLANT APPENDIX
14 08/26/2019 Oral Argument Request by Appellants
15 08/29/2019 Rec'd non-substantive corrections to ATA (pg #ing, etc.)
16 09/03/2019 Rec'd e-filing surcharge for ATA (receipt #27359)
17 09/03/2019 Rec'd 6 copies of ATB & ATA from CSD
18 09/09/2019 MOTION TO TAKE JUDICIAL NOTICE, OR ALTERNATIVELY, MOTION TO STRIKE - RspDue : 09/23/2019
19 09/23/2019 Response Filed to Motion to Take Judicial Notice
20 09/25/2019 ACTION BY SUPREME COURT (judicial notice denied; motion to strike granted) - Denied
21 09/25/2019 APPELLEE BRIEF - Meridian Energy Group View
22 09/25/2019 Oral Argument Request by Appellee (Meridian Energy Group)
23 09/26/2019 Corrected page 15 rec'd for Appellant brief
24 09/26/2019 APPELLEE BRIEF - ND Public Service Commission View
25 09/26/2019 Oral Argument Request by Appellee (ND Public Srvice Commission)
26 10/02/2019 Rec'd 6 copies of AEB -Meridian back from Central Duplicating
27 10/02/2019 Rec'd 6 copies of AEB - ND Public Service Commission back from Central Duplicating
28 10/09/2019 REPLY BRIEF View
29 10/11/2019 Rec'd 6 copies of RYB from CSD
30 10/18/2019 NOTICE OF ORAL ARGUMENT SENT
31 11/05/2019 Request for Radio/TV Coverage
32 11/06/2019 ACTION BY CLERK (Prairie Public, KFYR-TV & Bismarck Tribune) - Granted
33 11/12/2019 APPEARANCES: Derrick L. Braaten, Scott Strand, John M. Schuh, Jennifer L.Verleger, Lawrence Bender
34 11/12/2019 ARGUED: Scott Strand, Jennifer L.Verleger, Lawrence Bender
35 11/12/2019 ORAL ARGUMENT WEBCAST
36 11/13/2019 Supplemental citations under N.D.R.App.P. 28(k) View