IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 85

Energy Transfer LP and Dakota 

Access LLC, Plaintiffs and Appellants

v.

North Dakota Private Investigative 

and Security Board, Defendant and Appellee

and

Tigerswan, LLC, Defendant

No. 20210244

Appeal from the District Court of Burleigh County, South Central Judicial 

District, the Honorable David E. Reich, Judge.

REVERSED AND REMANDED.

Opinion of the Court by Tufte, Justice.

Jennifer S. Recine (argued), New York, N.Y., and Randall J. Bakke (on brief) 

and Shawn A. Grinolds (appeared), Bismarck, N.D., for plaintiffs and 

appellants.

Courtney R. Titus, Assistant Attorney General, Bismarck, N.D., for defendant 

and appellee.

Jack McDonald and Timothy Q. Purdon, Bismarck, N.D., for amici curiae

North Dakota Newspaper Association, HPR, LLC, and First Look Institute, 

Inc.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

APRIL 28, 2022 

1STATE OF NORTH DAKOTA
1

Energy Transfer v. ND Private Investigative and Security Bd.

No. 20210244

Tufte, Justice.

[¶1] Energy Transfer LP and Dakota Access LLC (together “Energy 

Transfer”) appeal from a district court’s order and judgment affirming the 

North Dakota Private Investigative and Security Board’s (“Board”) order 

denying Energy Transfer’s petition to intervene in an administrative action 

against TigerSwan, LLC. Energy Transfer argues that the district court erred 

by concluding it lacked standing to appeal the Board’s decision denying its 

petition to intervene and that the Board erred in denying its petition to

intervene. We reverse the court order concluding Energy Transfer lacked 

standing to appeal the Board’s order, and we reverse the Board’s order denying 

intervention and remand to the Board for further proceedings.

I

[¶2] TigerSwan contracted with Energy Transfer to provide services related 

to construction of the Dakota Access Pipeline. The Board commenced 

administrative proceedings against TigerSwan, alleging it provided 

investigative and security services in North Dakota without a license. In June 

of 2020, the Board compelled TigerSwan to produce approximately 16,000 

documents in response to a discovery request. Upon learning of the document 

disclosure, Energy Transfer contacted the Board, asserting the documents are

privileged and confidential, or are otherwise irrelevant to the administrative 

action.

[¶3] On September 15, 2020, while Energy Transfer was attempting to 

resolve its claims to the documents, the Board executed a settlement 

agreement with TigerSwan. Energy Transfer filed a petition to intervene on 

September 29, seeking to compel return of the documents and to obtain a 

protective order. Because the documents at issue were produced in electronic 

form and cannot be returned in the same sense as a physical copy, we consider 

the request to “return” the documents as a request to compel destruction of all 

copies in the Board’s possession. The Administrative Law Judge (“ALJ”) sent 
2

the petition to the Board, indicating a notice of settlement and stating she 

would take no further action unless requested. On October 12, the Board held 

a virtual meeting to consider Energy Transfer’s petition. At this meeting the 

Board denied Energy Transfer’s petition and closed the administrative action. 

The Board issued a written order denying the petition on October 30, holding 

that intervention was not proper because it would “impair the orderly conduct 

of the proceedings” because “a settlement had already been reached and the 

case was effectively closed.” The Board also found that even if it would have 

allowed intervention, it could not address or consider the relief sought by 

Energy Transfer because the documents are subject to open records laws. 

Energy Transfer appealed the Board’s order to the district court.

[¶4] The district court dismissed the appeal, concluding Energy Transfer

lacked standing to appeal the Board’s order because it was not a party under 

the Administrative Agencies Practice Act (“AAPA”). The court concluded in the 

alternative that the Board’s decision was in accordance with the law because 

Energy Transfer intervened too late and the Board could not lawfully address 

the relief sought in the petition given the existence of the open records and 

record retention laws. Energy Transfer appealed the court’s order and 

judgment to this Court.

[¶5] Energy Transfer commenced a separate action against the Board and 

TigerSwan after its unsuccessful attempt to intervene in the administrative 

proceeding. Energy Transfer brought claims for conversion, claim and delivery, 

and breach of contract and also sought an injunction to require the Board and 

TigerSwan to keep the disputed documents confidential and not to be produced 

to any third party. The court dismissed Energy Transfer’s claims for 

conversion, claim and delivery, and breach of contract and denied Energy 

Transfer’s request for an injunction, holding the produced documents 

constitute records for purposes of the N.D.C.C. ch. 44-04 open records laws and 

the N.D.C.C. ch. 54-46 document retention laws. That action is the subject of 

the appeal in Energy Transfer LP v. North Dakota Private Investigative & 

Security Board (Docket No. 20220036; Dist. Ct. Case No. 08-2020-CV-02788).
3

II

[¶6] Energy Transfer argues the district court erred in dismissing its appeal 

for lack of standing. “Standing is a question of law, which is reviewed de novo 

on appeal.” Minn-Kota Ag Prods., Inc. v. N.D. Pub. Serv. Comm’n, 2020 ND 12, 

¶ 10, 938 N.W.2d 118.

[¶7] Under N.D.C.C. § 28-32-42, any party to an administrative proceeding

has standing to appeal the agency’s decision. A party is defined as “each person

named or 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).

[¶8] The parties articulate different standards a court should use in 

determining whether a party has standing to appeal an order denying 

intervention in the administrative context. The Board argues the court applied 

the proper three-part test established in Bank of Rhame, 231 N.W.2d 801, 807-

08 (N.D. 1975), in determining Energy Transfer was not a “party” to the 

proceeding who had standing to appeal the Board’s order. 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.” Minn-Kota Ag 

Prods., Inc., 2020 ND 12, ¶ 13 (quoting Bank of Rhame, 231 N.W.2d at 808).

Using these three factors, the court determined Energy Transfer could not 

meet this test to establish it had standing to appeal the Board’s order denying 

intervention. Energy Transfer, on the other hand, argues the court erred in

applying the Bank of Rhame test because this test is only “appropriate to

assess a movant’s standing to appeal the merits of a substantive agency

decision [and] it is not applicable to judicial review of an order denying a

petition to intervene.” Energy Transfer contends that our case law has not

applied the Bank of Rhame test in evaluating standing to appeal an order

denying a petition to intervene because “[t]o require that a would-be

intervenor—who is not a “party”—be a “party” to have standing to appeal

would deny persons denied intervention the right to appeal such order.”

Instead, Energy Transfer urges this Court to follow what it describes as the
4

“well-established rule across the country that persons denied intervention

have standing to appeal that denial, independent of whether they would have

standing to appeal on the merits.”

[¶9] This Court has discussed standing in an appeal involving an order 

denying intervention in the administrative context on only one occasion. In 

Minn-Kota, the appellant appealed both the agency’s decision and the ALJ’s 

order denying its petition to intervene. 2020 ND 12, ¶ 1. We applied the Bank 

of Rhame test to determine whether the appellant had standing to appeal the 

merits of the Public Service Commission’s decision. Id. at ¶¶ 11–14. Because 

we concluded Minn-Kota had standing to appeal the merits under the Bank of 

Rhame test, we did not discuss whether standing may be more easily satisfied 

when a failed intervenor appeals only an order denying intervention. Id. at 

¶¶ 14, 39–47.

[¶10] A review of our case law demonstrates that the Bank of Rhame test is 

used only to assess a movant’s standing to appeal the merits of an agency’s

decision, not from a denial of intervention. See, e.g., In re Juran & Moody, Inc., 

2000 ND 136, ¶¶ 17–20, 613 N.W.2d 503 (applying the Bank of Rhame test to 

analyze whether appellant had standing to appeal an ALJ’s final order of 

dismissal determining no securities registration laws were violated); Shark v. 

U.S. WEST Commc’ns, Inc., 545 N.W.2d 194, 196–200 (N.D. 1996) (applying 

the Bank of Rhame test to analyze whether appellant had standing to appeal 

a PSC decision approving the sale of the exchanges and transfers of certificates 

of public convenience and necessity); Cass Cty. Elec. Co-op., Inc. v. Northern 

States Power Co., 518 N.W.2d 216, 219 (N.D. 1994) (applying the Bank of 

Rhame test to analyze whether appellant had standing to appeal a PSC 

decision finding the flexible tariffs to be valid); Washburn Pub. Sch. Dist.

No. 4 v. State Bd. of Pub. Sch. Educ., 338 N.W.2d 664, 666–68 (N.D. 1983)

(applying the Bank of Rhame test to analyze whether appellant had standing 

to appeal the State Board of Public School Education’s decision denying 

annexation). Likewise, when we review an appeal from persons denied 

intervention outside of the AAPA, we do not impose a standing requirement on 

the failed intervenor, but instead simply review the denial of intervention. E.g., 

Manning v. Jaeger, 2021 ND 162, 964 N.W.2d 522; Public Serv. Comm’n v. 
5

Grand Forks Bean Co., Inc., 2017 ND 201, 900 N.W.2d 255; Brigham Oil & 

Gas, L.P. v. Lario Oil & Gas Co., 2011 ND 154, 801 N.W.2d 677; Wyatt v. R.D. 

Werner Co., Inc., 524 N.W.2d 579 (N.D. 1994). Judicial review of an order 

denying intervention is “immediately appealable” because “[a]n order denying 

a non-party’s motion to intervene effectively concludes the proceedings for 

intervention and prevents the movant from becoming a party to the original 

action”. Wyatt, 524 N.W.2d at 580.

[¶11] Allowing immediate appellate review of an order denying intervention is 

the established rule across the nation. See, e.g., City of Cleveland v. Ohio, 508 

F.3d 827, 837 (6th Cir. 2007) (applying constitutional standing principles 

applicable to federal courts “recogniz[ing] the general rule prohibiting a party 

who unsuccessfully filed a motion to intervene from appealing anything but 

the order denying intervention”); In re Associated Press, 162 F.3d 503, 506 (7th 

Cir. 1998) (explaining that a failed intervenor “has no standing to appeal any 

order other than the denial of intervention”); Hopper v. Estate of Goard, 386 

P.3d 1245, 1247 n.2 (Alaska 2017) (“Although we review the denial of their 

motion to intervene, we do not reach their other arguments because ‘[a] failed 

intervenor has standing to appeal only the denial of intervention’ and not the 

merits of the adjudication.”); In Interest of EHD, 2017 WY 134, ¶ 18, 405 P.3d 

222 (recognizing “the right to appeal from the denial of a motion to intervene” 

as distinct from the “ability to challenge any other rulings”).

[¶12] The district court erred in applying the Bank of Rhame test to Energy 

Transfer’s appeal. Energy Transfer was not appealing the merits of the Board’s 

decision regarding TigerSwan’s inability to obtain a license to provide security 

and investigative services in North Dakota. Energy Transfer brought a 

narrower appeal limited to the Board’s order denying its petition to intervene. 

A failed intervenor has standing to appeal an order denying intervention. 

Therefore, we conclude Energy Transfer had standing to appeal the Board’s 

order denying its petition to intervene.
6

III

[¶13] Because Energy Transfer had standing to appeal the Board’s order 

denying intervention, we now address whether the Board erred in determining 

post-settlement intervention was improper and whether it lacked authority to 

address the relief sought in Energy Transfer’s petition. “When a decision of an 

administrative agency is appealed from the district court to this Court, we 

review the decision of the agency.” Rennich v. N.D. Dep’t of Human Servs., 2008 

ND 171, ¶ 10, 756 N.W.2d 182. A reviewing court must affirm an agency order 

unless:

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the 

appellant.

3. The provisions of this chapter have not been complied with in 

the proceedings before the agency.

4. The rules or procedure of the agency have not afforded the 

appellant a fair hearing.

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.

8. The conclusions of law and order of the agency do not

sufficiently explain the agency’s rationale for not adopting any 

contrary recommendations by a hearing officer or an 

administrative law judge.

N.D.C.C. § 28-32-46. This Court will reverse an agency’s findings only if they 

“are not supported by a preponderance of the evidence” and a reasoning mind 

could not have determined the factual conclusions based upon the evidence 

from the entire record. Rennich, 2008 ND 171, ¶ 11. Questions of law, however, 

“are fully reviewable on an appeal from an administrative decision.” Id.
7

A

[¶14] 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.

[¶15] The abuse of discretion standard of review used for permissive 

intervention under N.D.R.Civ.P. 24(b) is applicable to intervention in the AAPA 

context because N.D.C.C. § 28-32-28 also gives the agency discretion on 

whether to grant intervention. “A court abuses its discretion if it acts in an 

arbitrary, unreasonable, or unconscionable manner, its decision is not the 

product of a rational mental process leading to a reasoned determination, or it 

misinterprets or misapplies the law.” Grand Forks Bean Co., Inc., 2017 ND 

201, ¶ 16.

[¶16] Our intervention precedents under N.D.R.Civ.P. 24 provide guidance in 

analyzing denied intervention in the AAPA context. Minn-Kota, 2020 ND 12, 

¶¶ 41–44. “Intervention has historically been liberally granted in North 

Dakota.” Id. at ¶ 41. Although liberally granted, “post-judgment intervention 

is ‘unusual and not often granted.’” Id. (quoting Quick v. Fischer, 417 N.W.2d 

843, 845 (N.D. 1988)). In deciding whether to grant a post-judgment petition 

for intervention, certain considerations must be taken into account, including:

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 
8

termination of the litigation intervention ordinarily will be 

allowed.

Id. Further, if allowing intervention after judgment will neither “(1) prejudice 

the rights of the existing parties to the litigation or (2) substantially interfere 

with the orderly processes of the court[,] . . . the mere fact that judgment 

already has been entered should not by itself require a motion for intervention 

to be denied.” Brigham Oil & Gas, 2011 ND 154, ¶ 40.

[¶17] Although unusual, this Court has granted post-judgment intervention to 

protect legal and property interests when an attempted intervenor moved for 

intervention “promptly after learning of the entry of judgment, within the time 

for appeal.” Quick, 417 N.W.2d at 845. However, when attempted intervenors 

seek “to intervene months after learning of the court’s decision” where “[n]o 

explanation has been given for the delay and intervention [would allow] 

relitigation of the issues, and other expensive delays at a cost to the existing 

parties and to the orderly processes of the court,” post-judgment intervention 

is inappropriate. Brigham Oil & Gas, 2011 ND 154, ¶ 42.

[¶18] The Board abused its discretion in denying Energy Transfer’s postsettlement petition to intervene. First, regarding prejudice to the existing 

parties, the Board found that keeping the administrative action open to resolve 

Energy Transfer’s document concerns could “detrimentally affect the parties’ 

settlement and conclusion of the case.” However, Energy Transfer is not 

concerned with any of the issues resolved by the settlement between the 

parties, but instead is concerned with the entirely separate issue of disposition 

and management of documents. TigerSwan would have no involvement in this 

issue, and it would not incur any additional time and expense if the action 

remained open to resolve document management issues. Additionally, while 

this Court has yet to address post-judgment or post-settlement intervention for 

the sole purpose of managing documents, many jurisdictions that have 

addressed this issue have concluded that intervention would not prejudice the 

parties or impair the judgment. See, e.g., Equal Emp’t Opportunity Comm’n v. 

Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1047 (D.C. Cir. 1998) (“We simply 

note that there is a ‘growing consensus among the courts of appeals that 
9

intervention to challenge confidentiality orders may take place long after a 

case has been terminated.’”); United Nuclear Corp. v. Cranford Ins. Co., 905 

F.2d 1424, 1427 (10th Cir. 1990) (allowing intervention three years after 

settlement of the case because intervention “was not on the merits [of the 

underlying case], but for the sole purpose of challenging a protective order”); 

Zenith Elec. Corp. v. Ballinger, 204 P.3d 1106, 1112 (Ariz. Ct. App. 2009) 

(because a non-party “sought to intervene for a limited purpose [of furthering 

the public’s interest in access to materials produced during discovery] and not 

to disrupt or interfere with the settlement agreement . . . prejudice to [the 

parties] was unlikely”); Rosado v. Bridgeport Roman Catholic Diocesan Corp., 

884 A.2d 981, 1016 (Conn. 2005) (because the “would-be intervenor” seeks to 

intervene for “an ancillary issue concerning the protective orders . . . we 

conclude that the delay in intervention caused little, if any, prejudice to the 

parties to the withdrawn cases”). Further, the potential prejudice from 

relitigation of issues discussed in Brigham Oil & Gas and Minn-Kota is absent 

in this case because the request to intervene relates only to document

management and would not implicate the merits of the settlement. 

Additionally, unlike the appellants in Brigham Oil & Gas and Minn-Kota, 

Energy Transfer has explained its reason for delayed intervention—assurances 

from the Board’s counsel that their privileged documents would be returned 

and that the Board would keep the action open to address Energy Transfer’s 

document concerns. Therefore, there is no indication the parties would be 

prejudiced to justify the Board denying post-settlement intervention.

[¶19] Second, regarding substantial interference with the orderly processes of 

the agency, this factor also appears to be absent because Energy Transfer 

promptly moved for intervention after learning of the Board’s decision. Energy 

Transfer filed its petition to intervene 13 days after the settlement was 

executed and before any action was taken to close the proceeding. Thus, 

because Energy Transfer did not seek “to intervene months after learning of 

the court’s decision” like the intervenors in Brigham Oil & Gas, 2011 ND 154, 

¶ 42, we conclude there is no indication that the orderly processes of the Board 

would suffer substantial interference to justify denying post-settlement 

intervention.
10

[¶20] Lastly, Energy Transfer has demonstrated it has “legal rights, duties, 

privileges, immunities, or other legal interests [that] may be substantially 

affected by the proceeding” to allow intervention to be granted pursuant to 

N.D.C.C. § 28-32-28. The courts that have addressed intervention for 

document management issues hold that non-parties may intervene for the 

purpose of protecting their legal interest in disclosure of allegedly privileged 

materials. See, e.g., United States v. American Telephone & Telegraph Co., 642 

F.2d 1285, 1292 (D.C. Cir. 1980) (“Without the right to intervene in discovery 

proceedings, a third party with a claim of privilege in otherwise discoverable 

materials could suffer ‘the obvious injustice of having his claim erased or 

impaired by the court’s adjudication without ever being heard.’”); North Valley 

Bancshares, Inc. v. Raines, No. CT20090028, 2009 WL 3542209, at *1–3 (Ohio 

Ct. App. 2009) (reversing lower court’s denial of intervention where failed 

intervenor sought to protect his interest in preventing disclosure of privileged 

information); Rosado v. Bridgeport Roman Catholic Diocesan Corp., 758 A.2d 

916, 927 (Conn. App. Ct. 2000) (reversing judgment denying motion to 

intervene and directing “the seven priests on remand are to be granted 

intervention for the unique purpose of contesting the disclosure of private,

confidential files and issues relating to this interest”).

[¶21] Energy Transfer has satisfied the requirements set forth in N.D.C.C. 

§ 28-32-28. The Board misinterpreted and misapplied the law because it denied 

intervention based upon the “mere fact” that a settlement in the 

administrative action had been entered. The Board’s order also was not the

product of a rational mental process leading to a reasoned determination,

because it failed to articulate a rational reason that the existing parties could 

be prejudiced or that the Board’s orderly processes would suffer a substantial 

interference. We conclude the Board abused its discretion in denying Energy 

Transfer’s petition to intervene.

B

[¶22] The Board also made findings regarding its statutory authority to 

address and provide the relief sought by Energy Transfer in its petition. We 

now address those findings.
11

[¶23] The Board “determined it was not the appropriate body to address this 

matter, which includes private contract disputes between two private parties 

as it falls outside its statutory authority.” We conclude that the Board’s 

classification of this matter as a contract dispute is erroneous. This matter 

involves a dispute regarding documents TigerSwan was compelled to produce 

in the administrative action against the Board. To the extent there are contract 

claims between Energy Transfer and TigerSwan, the Board was correct that it 

was not the appropriate venue to resolve those claims; however, the petition to 

intervene asserted not contract claims but claims the documents were not 

subject to disclosure under the open records law. Therefore, this matter did not 

fall outside the Board’s statutory authority.

[¶24] Further, the Board determined it could not issue a protective order 

regarding the disputed documents in this matter. However, N.D.C.C. § 28-32-

33(2) authorizes an administrative hearing officer to “issue subpoenas, 

discovery orders, and protective orders in accordance with the North Dakota 

Rules of Civil Procedure.” “If a party or a nonparty from whom discovery is 

sought claims privilege, a hearing officer may issue a protective order 

precluding disclosure of the privileged information or requiring disclosure in a 

designated way.” Med. Arts Clinic, P.C. v. Franciscan Initiatives, Inc., 531 

N.W.2d 289, 297 (N.D. 1995). Section 28-32-27(1), N.D.C.C., sets forth that a 

hearing officer is not limited to an administrative law judge but also includes 

“[a]ny person or persons presiding for the agency in an administrative 

proceeding.” Therefore, because the Board decided to take up the document 

dispute, it had statutory authority to issue a protection order. We conclude that 

the Board’s findings regarding its statutory authority to address and provide 

the relief sought by Energy Transfer in its petition are not supported by the 

law.

IV

[¶25] Because we conclude the Board erred in denying Energy Transfer’s 

petition to intervene, a remand is necessary for the Board to assess Energy 

Transfer’s claims regarding the produced documents. While we held in Energy 

Transfer LP v. North Dakota Private Investigative & Security Board, 2022 ND 
12

84, ¶ 23, that the produced documents are subject to open records and record 

retention laws, we also recognized that individual documents or parts of 

documents may be withheld from disclosure if they fall within a statutory 

exemption. Thus, we remand to the Board for further proceedings.

V

[¶26] We reverse the district court’s order dismissing Energy Transfer’s appeal 

for lack of standing, and we reverse the Board’s order denying intervention and 

remand for further proceedings.

[¶27] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte