Filed 1/23/20 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 12

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

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.
1

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 threephase 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 
2

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?
3

[¶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. MinnKota 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 MinnKota 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 
4

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 
5

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 
6

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 
7

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 MinnKota, 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 
8

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 prehearing 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 
9

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 MinnKota. 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 
10

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:
11

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 
12

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. 
13

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 MinnKota’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 
14

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.
15

[¶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: 
16

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. 
17

§ 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 
18

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.
19

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.