IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 131

Fritz Opp, Petitioner and Appellant

v.

Office of the North Dakota

Attorney General - BCI CWL

Unit and Office of the North

Dakota Attorney General, Respondents and Appellees

No. 20220332

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

District, the Honorable Bruce A. Romanick, Judge.

AFFIRMED AS MODIFIED.

Opinion of the Court by McEvers, Justice, in which Chief Justice Jensen and 

Justices Crothers and Tufte joined. Justice Bahr filed an opinion specially 

concurring.

DeWayne A. Johnston, Grand Forks, ND, for petitioner and appellant.

Matthew A. Sagsveen, Assistant Attorney General, Bismarck, ND, for

respondents and appellees.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JULY 19, 2023 

STATE OF NORTH DAKOTA
1

Opp v. Office of the North Dakota Attorney General - BCI CWL Unit, 

et al.

No. 20220332

McEvers, Justice.

Fritz Opp appeals from a dismissal judgment entered by the district 

court after he attempted to appeal from a Bureau of Criminal Investigation

(“BCI”) decision denying his application for a concealed weapons license under 

N.D.C.C. ch. 62.1-04. The court held it lacked subject matter jurisdiction 

because Opp had not complied with the requirements for perfecting an appeal 

under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32 (“AAPA”). 

We affirm as modified. 

I

The jurisdictional facts are undisputed. BCI issued Opp a letter denying 

his application for a concealed weapons license on grounds that he had been 

convicted of an offense involving moral turpitude. Opp filed a “Petition of

Appeal to the District Court,” which included specifications of error, and noted 

the appeal was taken “pursuant to N.D.C.C. § 28-32-42.” Opp attempted to 

serve the Attorney General with his petition via email but inadvertently 

attached documents from an unrelated matter. Upon receipt of Opp’s email, 

the Attorney General’s office advised Opp: “It is not clear why these records 

were sent to this office. Accordingly, we cannot take any further action until 

we receive clarification.” Opp’s counsel emailed the following response: “This 

is a District Court Review of a CWL Application. Attached is the Notice of filing 

and case assignment.” Opp’s petition and specifications of error were not 

included with the response.

The Attorney General moved to dismiss for lack of subject matter

jurisdiction arguing Opp had not complied with the requirements for perfecting 

an appeal under N.D.C.C. § 28-32-42(4) of the AAPA by failing to serve a notice 

of appeal and specifications of error on the Office of the Attorney General. Opp 

responded arguing the AAPA did not apply because the law authorizing BCI to 

grant or deny concealed weapons licenses, N.D.C.C. ch. 62.1-04, does not refer 
2

to the AAPA. Opp alternatively argued that any timing requirements should 

be subject to equitable tolling. 

After a hearing, the district court granted the Attorney General’s motion 

to dismiss. The court held the AAPA applies to N.D.C.C. ch. 62.1-04 by virtue 

of language referencing the AAPA found in N.D. Admin. Code § 10-12-01-10. 

The court concluded it lacked subject matter jurisdiction because Opp did not 

serve a notice of appeal and specifications of error on the Attorney General

within 30 days as required by the AAPA. See N.D.C.C. § 28-32-42. Opp appeals 

arguing the AAPA does not apply and consequently there are no time limits for 

perfecting an appeal under N.D.C.C. ch. 62.1-04 or, alternatively, any 

applicable deadlines should be extended under the doctrine of equitable tolling.

II

Article VI, § 8 of the North Dakota Constitution vests the district court 

with “appellate jurisdiction as may be provided by law or by rule of the supreme

court.” See also City of Casselton v. N.D. Pub. Serv. Comm’n, 307 N.W.2d 849, 

851 (N.D. 1981) (“[T]he district court exercises appellate jurisdiction conferred 

upon it by statute.”). The district courts of this state have: “Jurisdiction of 

appeals from . . . the determinations of inferior officers, boards, or tribunals, in 

the cases and pursuant to the regulations as may be prescribed by law.”

N.D.C.C. § 27-05-06(4). “[T]he judicial and legislative branches share authority 

when establishing the procedure for the appellate jurisdiction of the district 

court.” City of Williston v. Werkmeister, 2015 ND 172, ¶ 10, 865 N.W.2d 429

(quoting City of Fargo v. Komad, 2006 ND 177, ¶ 10, 720 N.W.2d 619). A party 

invoking the district court’s appellate jurisdiction must satisfy the statutory 

requirements for perfecting an appeal. Altru Specialty Servs., Inc. v. N.D. Dep’t 

of Human Servs., 2017 ND 270, ¶ 8, 903 N.W.2d 721. “The statutory 

requirements for filing and serving a notice of appeal from an agency order are 

jurisdictional.” Id. If an appeal is not properly perfected, the district court lacks 

subject matter jurisdiction and the appeal must be dismissed. Benson v. 

Workforce Safety & Ins., 2003 ND 193, ¶ 6, 672 N.W.2d 640.

Under N.D.C.C. § 62.1-04-03(8), an applicant for a concealed weapons 

license “may appeal a denial or revocation of this license to the district court of 
3

Burleigh County.” Chapter 62.1-04 does not specify a method for taking the 

appeal. It states: “The attorney general may adopt any rules necessary to 

implement this title.” N.D.C.C. § 62.1-04-03(10). The Attorney General has 

adopted regulations allowing an applicant who is denied a concealed weapons 

license to petition for rehearing and reconsideration under N.D.C.C. § 28-32-

40 and to appeal to the district court of Burleigh County under N.D.C.C. § 28-

32-42. See N.D. Admin. Code § 10-12-01-10. Section 28-32-42, N.D.C.C., 

provides in pertinent part: 

1. Any party to any proceeding heard by an administrative 

agency, except when the order of the administrative agency is 

declared final by any other statute, may appeal from the order 

within thirty days after notice of the order has been given as 

required by section 28-32-39. If a reconsideration has been 

requested as provided in section 28-32-40, the party may 

appeal within thirty days after notice of the final 

determination upon reconsideration has been given as 

required by sections 28-32-39 and 28-32-40. If an agency does 

not dispose of a petition for reconsideration within thirty days 

after the filing of the petition, the agency is deemed to have 

made a final determination upon which an appeal may be 

taken. 

. . .

3. a. The appeal of an order may be taken to the district court 

designated by law, and if none is designated, then to the 

district court of the county in which the hearing or a part 

thereof was held. If the administrative proceeding was 

disposed of informally, or for some other reason no hearing 

was held, an appeal may be taken to the district court of 

Burleigh County. Only final orders are appealable. A 

procedural order made by an administrative agency while 

a proceeding is pending before it is not a final order.

(Emphasis added.) 

As an initial matter, we note Opp has not argued the denial of his 

application was not a final order, and there is no indication in the record that
4

Opp sought a hearing, petitioned for reconsideration under N.D.C.C. § 28-32-

40, or requested any other relief from the Attorney General after receiving the 

denial letter. Based on Opp’s petition of appeal, which expressly states it is 

made “pursuant to N.D.C.C. § 28-32-42,” it appears Opp attempted an 

immediate appeal to the district court from the denial of his application. The 

party appealing to district court has the burden to show the district court has 

jurisdiction. See Boyko v. N.D.’s Workmen’s Comp. Bureau, 409 N.W.2d 638, 

640 (N.D. 1987) (discussing a claimant under workers’ compensation statute 

had the burden to show the court has jurisdiction when appealing).

Despite Opp’s reliance on N.D.C.C. § 28-32-42 in his petition, he now 

claims it cannot apply to his appeal because the AAPA is not explicitly 

referenced in N.D.C.C. ch. 62.1-04. Opp’s argument relies on statutory 

provisions in various titles that allow for appeals to the district court and

explicitly refer to the AAPA or chapter 28-32. Opp’s reliance on statutory 

references where the legislature has specifically referenced the AAPA when 

discussing the right to appeal is misplaced. Such a reference is unnecessary 

because the definition of an administrative agency does not require an express 

statutory grant of a right to review. Hammond v. N.D. State Pers. Bd., 332 

N.W.2d 244, 248 (N.D. 1983).

Opp also argues section 62.1-04-03(8) allows for appeals to the district 

court of Burleigh County without any time requirements or limitation. Because 

chapter 62.1-04 expresses no limitations for appealing a decision denying a 

concealed weapons permit, Opp contends the Office of the Attorney General

exceeded its rule-making authority by adopting N.D. Admin. Code § 10-12-01-

10, which adopts the timing requirements of N.D.C.C. § 28-32-42. As Opp 

admits, his reading would allow appeals to be taken years after decisions were 

made, after circumstances have changed, and after governing laws and rules 

may have been revised or repealed. As we explain below, we reject Opp’s 

reading of the laws at issue.

We make every effort to “harmonize and give meaningful effect” to 

statutes that relate to the same subject matter. State v. Marcum, 2020 ND 50, 

¶ 21, 939 N.W.2d 840. We read words in a statute based on their plain, ordinary, 
5

and commonly understood meaning. Bell v. State, 2022 ND 222, ¶ 8, 982 

N.W.2d 589; see also N.D.C.C. § 1-02-02. “We interpret statutes in context to 

give meaning and effect to every word, phrase, and sentence in a statute.” 

Guthmiller v. N.D. Dep’t of Transp., 2018 ND 9, ¶ 8, 906 N.W.2d 73 (quoting 

Doyle v. Sprynczynatyk, 2001 ND 8, ¶ 10, 621 N.W.2d 353). We presume the 

legislature intended a just and reasonable result when enacting a statute, see

N.D.C.C. § 1-02-38(3), and we avoid interpreting statutes in a manner that 

would create an absurd or illogical result, State v. Stegall, 2013 ND 49, ¶ 16, 

828 N.W.2d 526. It is not reasonable to expect an appeal may be taken at any 

time without limitation.

Opp argues N.D. Admin. Code § 10-12-01-10 is inconsistent with the 

statutory framework for appeals under N.D.C.C. ch. 62.1-04. A regulation 

which exceeds statutory authority or conflicts with the statute that it 

implements is void. State ex rel. Clayburgh v. Am. W. Cmty. Promotions, Inc., 

2002 ND 98, ¶ 13, 645 N.W.2d 196. Section 10-12-01-10 requires an appeal 

from the denial of a concealed weapons license to be taken to the district court 

under N.D.C.C. § 28-32-42. In promulgating section 10-12-01-10, the Attorney 

General provided some guidance of the procedure for appealing BCI’s denial of 

an application for a concealed weapons license. In doing so, the Attorney 

General complied with the statutory mandate to adopt rules to implement title 

62.1 on concealed weapons. See N.D.C.C. § 62.1-04-03(10). The language of 

N.D.C.C. § 28-32-42(3)(a) recognizes the legislature may designate a specific 

district court has appellate jurisdiction to hear an appeal, and in this instance 

N.D.C.C. § 62.1-04-03(8) requires an appeal be taken to the district court in 

Burleigh County. See Boyko, 409 N.W.2d at 641 (discussing the statutory 

designation conferred to district courts for filing a notice of appeal from an 

administrative agency as being a matter of jurisdiction, not venue). The 

Attorney General’s promulgation of section 10-12-01-10 does not conflict with 

the statutory right to appeal to the district court in Burleigh County under 

N.D.C.C. § 62.1-04-03(8); rather, the rule restates the jurisdictional limitation 

designated in N.D.C.C. § 62.1-04-03(8) on where appellate review may occur as 

may be provided by law under N.D.C.C. § 28-32-42(3)(a).
6

Regardless of the regulations adopted by the Attorney General, the 

AAPA applies to this appeal based on its plain language. BCI is organized 

under the Attorney General, and the Attorney General acts as its 

superintendent. See N.D.C.C. ch. 12-60. This Court has previously considered

the process for the denial of a renewal of a concealed weapons license under 

N.D.C.C. ch. 62.1-04 to fall under the AAPA. See Kasprowicz v. Finck, 1998 ND 

4, ¶¶ 14-15, 574 N.W.2d 564 (remanding for the BCI chief to exercise his 

discretion under N.D.C.C. § 62.1-04-03 and N.D.C.C. ch. 28-32). Opp’s appeal 

asks the district court to review a decision by BCI, which is organized under 

the Office of the Attorney General, an “administrative unit of the executive 

branch,” to deny a license to carry a concealed weapon, a “form of authorization 

required by law.” See N.D.C.C. § 28-32-01(2), (7) (defining the terms 

“administrative agency” and “license”). By its terms, the AAPA applies to Opp’s 

appeal.

We reject Opp’s invitation to read the reference to Burleigh County 

district court in section 62.1-04-03(8) as permitting appeals without limitation. 

Absent any apparent law to indicate otherwise, we hold Opp’s appeal is 

governed by the AAPA. Although there was no hearing in this case as 

ordinarily contemplated by the AAPA, N.D.C.C. § 28-32-42(3)(a) also 

contemplates instances when, for some reason, no hearing is held. In addition, 

the relief Opp requests on appeal is for reversal of the district court’s dismissal, 

not a hearing under the AAPA. Opp has made no argument that he was denied 

due process under the AAPA.

An appeal under the AAPA may be taken by serving a notice of appeal 

and specifications of error on the agency within 30 days after a party has 

received notice of the agency’s decision. N.D.C.C. § 28-32-42. Opp undisputedly 

did not do so, and therefore he did not satisfy the statutory requirements for 

perfecting his appeal. Although the district court reached the same result 

based on a different rationale (that the AAPA applies via N.D. Admin. Code § 

10-12-01-10), we will not set aside its judgment merely because the court relied 

on different reasoning. PHI Fin. Servs., Inc. v. Johnston Law Off., P.C., 2020 

ND 22, ¶ 34, 937 N.W.2d 885. Based on this record, we agree with the district 
7

court that it lacked subject matter jurisdiction because Opp failed to perfect 

his appeal under the AAPA.

III

Opp alternatively argues he is entitled to equitable tolling of “any 

deadlines accompanying the appeal.” He relies on Boechler, P.C. v. 

Commissioner of Internal Revenue, 142 S.Ct. 1493, 1501 (2022), where the 

United States Supreme Court held a time limit to file a petition for review of 

an IRS decision was a “nonjurisdictional deadline subject to equitable tolling.” 

However, unlike the timing requirement in Boechler, the provisions of the 

AAPA are jurisdictional. See Altru Specialty Servs., 2017 ND 270, ¶ 8. 

“Jurisdictional requirements . . . do not allow for equitable exceptions.” 

Boechler, at 1497. The doctrine of equitable tolling, which this Court has not 

adopted, is an exception to a statute of limitations. Grand Forks Homes, Inc. v. 

State Bd. of Equalization, 2011 ND 65, ¶ 22, 795 N.W.2d 335. Equitable tolling 

cannot be used to extend a statutory deadline for perfecting an appeal. Id.

Rather, “[t]he terms of the statutes governing appeals control whether the time 

for taking an appeal may be tolled.” Id.

Opp also argues he is entitled to relief under N.D.R.Ct. 3.5(f), which 

allows the district court to “grant appropriate relief if electronic filing or 

electronic service was not completed due to technical problems.” See Inwards 

v. N.D. Workforce Safety & Ins., 2014 ND 163, ¶¶ 14-15, 851 N.W.2d 693 

(affirming district court’s application of Rule 3.5(f) to allow agency additional 

time to serve notice of appeal after attempted electronic service failed). 

However, it appears Opp did not move for relief under Rule 3.5(f) in the district 

court. See N.D.R.Civ.P. 7(b)(1) (“A request for a court order must be made by 

motion.”). Nor has Opp identified any place in the record where he claimed

Rule 3.5(f) applied. Opp cannot argue on appeal that the district court erred by 

failing to issue relief he did not seek. See Schrodt v. Schrodt, 2022 ND 64, ¶ 7, 

971 N.W.2d 861 (issues not presented to the district court will not be addressed

on appeal). 
8

IV

Opp did not satisfy the requirements to perfect an appeal under N.D.C.C.

§ 28-32-42, which apply to his appeal and are jurisdictional. Equitable tolling 

cannot be applied as an exception to a statutory jurisdictional requirement. 

The district court correctly held it lacked subject matter jurisdiction. However, 

the court dismissed the matter with prejudice. A dismissal with prejudice is 

considered an adjudication on the merits. Trottier v. Bird, 2001 ND 177, ¶ 8, 

635 N.W.2d 157. Absent jurisdiction, a court is powerless to do anything beyond 

dismissing without prejudice. Riemers v. State, 2006 ND 162, ¶ 10, 718 N.W.2d 

566. We affirm dismissal of the action but modify the judgment to dismiss 

without prejudice. 

Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Bahr, Justice, specially concurring.

I concur with the majority’s conclusion the district court lacks subject 

matter jurisdiction over Opp’s appeal because Opp did not satisfy the 

requirements to perfect an appeal under N.D.C.C. § 28-32-42.

Opp’s “Petition of Appeal” cites N.D.C.C. § 28-32-42, N.D.C.C. § 62.1-04-

03, and N.D. Admin. Code § 10-12-01-10 as authority for his appeal. For that 

reason, I write separately to address application of N.D.C.C. § 62.1-04-03 and 

N.D. Admin. Code § 10-12-01-10. I also write separately to emphasize the 

majority’s decision should not be read as holding an applicant for a concealed 

weapons license is not entitled to a hearing prior to BCI issuing a final order 

denying the application, and to suggest possible changes to N.D.C.C. § 62.1-04-

03 and N.D. Admin. Code § 10-12-01-10.

V

Section 62.1-04-03(8), N.D.C.C., provides “[t]he applicant [for a concealed 

weapons license] may appeal a denial or revocation of this license to the district 
9

court of Burleigh County.” Opp correctly notes N.D.C.C. ch. 62.1-04 does not 

address an applicant’s right to an adjudicative proceeding under N.D.C.C. ch. 

28-32, the Administrative Agencies Practice Act (AAPA), prior to the denial of 

an application for a concealed weapons license. He therefore argues the AAPA 

does not apply to his appeal. I agree with the majority that the AAPA applies 

to Opp’s appeal.

A statutory reference to the AAPA or to the right to a hearing in N.D.C.C. 

ch. 62.1-04 is not required for the AAPA to apply to applications for a concealed 

weapons license. Applicants for concealed weapons licenses are entitled to the 

protections of the AAPA due to the definitions of “adjudicative proceeding,” 

“administrative agency,” “license,” and “order” in N.D.C.C. § 28-32-01 

irrespective of whether N.D.C.C. ch. 62.1-04 specifically references the AAPA. 

Hammond v. N.D. State Pers. Bd., 332 N.W.2d 244, 248 (N.D. 1983) (“The 

current definition of an administrative agency no longer requires that there be 

an express statutory grant of a right of review under a statute located outside 

the provisions of Chapter 28-32, N.D.C.C.”). A statute does not have to refer to 

the AAPA or state an applicant has a right to a hearing for the AAPA to apply 

to quasi-judicial decisions of administrative agencies. For that reason, I concur 

with the majority that the AAPA governs Opp’s appeal. Majority, at ¶¶ 8, 12-

13.

Opp further argues N.D.C.C. § 62.1-04-03(8) does not contain a time limit 

for perfecting an appeal, which renders his appeal timely. Section 62.1-04-

03(8), without setting a time limit to perfect the appeal, designates the district 

court with jurisdiction to hear an appeal; N.D.C.C. § 28-32-42(1) provides the 

time limit to perfect an appeal from an order of an administrative agency.

Under N.D.C.C. § 28-32-42(1), “[a]ny party to any proceeding heard by 

an administrative agency . . . may appeal from the order within thirty days 

after notice of the order has been given as required by section 28-32-39.”

Section 28-32-42(3)(a), N.D.C.C., provides “[t]he appeal of an order may be 

taken to the district court designated by law, and if none is designated, then to 

the district court of the county in which the hearing or a part thereof was held.” 

(Emphasis added.) Section 62.1-04-03(8), N.D.C.C., provides “[t]he applicant 
10

[for a concealed weapons license] may appeal a denial or revocation of this 

license to the district court of Burleigh County.” Thus, N.D.C.C. § 62.1-04-03(8) 

designates the district court where an appeal of a denial of an application for 

a concealed weapons license may be taken under N.D.C.C. § 28-32-42. The 

limited language in N.D.C.C. § 62.1-04-03(8) cannot reasonably be read as an 

exception to the AAPA, as argued by Opp.

We avoid interpreting statues in a manner that would create an absurd 

and illogical result. Henry Hill Oil Servs. LLC v. Tufto, 2023 ND 41, ¶ 10, 987 

N.W.2d 314. Interpreting N.D.C.C. § 62.1-04-03(8) to grant a right to a direct 

appeal to the district court of Burleigh County would create an absurd and 

illogical result because a direct appeal to the district court would conflict with 

the AAPA and deny applicants the established protections of the AAPA. 

Moreover, interpreting N.D.C.C. § 62.1-04-03(8) to grant a right to a direct 

appeal, as distinguished from an appeal under N.D.C.C. § 28-32-42, would 

create an absurd and illogical result because the statue does not provide a 

process for the appeal, such as within what amount of time the appeal has to 

be taken, the standard of review, and the record on appeal. See Majority, at ¶ 6 

(“Chapter 62.1-04 does not specify a method for taking the appeal.”); Majority, 

at ¶ 9 (section 62.1-04-03(8) has no time requirements or limitations and 

“would allow appeals to be taken years after decisions were made, after 

circumstances have changed, and after governing laws and rules may have 

been revised or repealed”).

Furthermore, “[s]tatutes relating to the same subject matter shall be 

construed together and should be harmonized, if possible, to give meaningful 

effect to each, without rendering either one useless.” Henry Hill Oil, 2023 ND 

41, ¶ 10. To read the appeal language in N.D.C.C. § 62.1-04-03(8) to grant a 

right to a direct appeal to the district court does not harmonize N.D.C.C. § 62.1-

04-03(8) with N.D.C.C. § 28-32-42 and would give no effect to the due process 

requirements established in the AAPA. However, concluding N.D.C.C. § 62.1-

04-03(8) designates the district court where an appeal of a denial of an 

application for a concealed weapons license may be taken under the AAPA 

harmonizes N.D.C.C. § 62.1-04-03(8) with N.D.C.C. § 28-32-42 and the AAPA.
11

Under N.D.C.C. § 62.1-04-03(4), BCI “is required to process the 

application and make a determination within sixty days of receipt of the 

properly completed application.” The sixty-day timeline does not conflict with 

BCI providing an applicant the procedural protections of the AAPA. As we 

stated in Singha v. N.D. State Board of Medical Examiners, 1998 ND 42, ¶ 27, 

574 N.W.2d 838, the AAPA “is flexible enough to allow the [agency] to 

informally deny license applications during its scheduled meetings as long as 

applicants are afforded subsequent procedural safeguards required by the 

A.A.P.A.” Thus, BCI can make its determination on an application within sixty 

days based solely on the application as long as the applicant is subsequently 

afforded the procedural safeguards required by the AAPA, including the right 

to request a hearing.

Section 10-12-01-10, N.D. Admin. Code, states an applicant may appeal 

the denial of an application of a license to the district court of Burleigh County. 

To read N.D. Admin. Code § 10-12-01-10 to provide an applicant a right to 

appeal BCI’s decision without providing an applicant the opportunity for an 

adjudicative proceeding would be inconsistent with the AAPA, making the rule 

invalid. N.D.C.C. § 28-32-23 (providing “an administrative agency may adopt 

specific agency rules of procedure not inconsistent with this chapter”); State ex 

rel. Clayburgh v. Am. W. Cmty. Promotions, Inc., 2002 ND 98, ¶ 13, 645 N.W.2d 

196 (“A regulation which exceeds the [agency’s] statutory authority or conflicts 

with the statute that it implements is void.”); Steele v. N.D. Workmen’s Comp. 

Bureau, 273 N.W.2d 692, 701 (N.D. 1978) (“A rule may not exceed statutory 

authority or supersede a statute.”). Construing N.D. Admin. Code § 10-12-01-

10 to preserve its validity, N.D. Admin. Code § 10-12-01-10 must be 

harmonized with N.D.C.C. ch. 28-32 by construing it to simply restate the 

appeal rights and jurisdiction provided in N.D.C.C. §§ 28-32-42 and 62.1-04-

03(8). Steele, at 701 (construing administrative rule to preserve its validity by 

interpreting it to require Workmen’s Compensation Bureau to conduct or hold 

a formal hearing if requested by a party aggrieved by the result of an informal 

hearing).
12

VI

In enacting the AAPA, the North Dakota legislature “set out the due 

process requirements for administrative agencies.” Steele, 273 N.W.2d at 700-

01. The AAPA generally governs due process requirements that must be 

followed before an administrative agency issues an order as defined in the 

AAPA. A significant procedural protection provided by the AAPA is the right to 

an adjudicative proceeding. Under N.D.C.C. § 28-32-01(1), an “‘[a]djudicative 

proceeding’ means an administrative matter resulting in an agency issuing an 

order after an opportunity for hearing is provided or required.” (Emphasis 

added.) “At any hearing in an adjudicative proceeding, the parties shall be 

afforded opportunity to present evidence and to examine and cross-examine 

witnesses as is permitted under sections 28-32-24 and 28-32-35.” N.D.C.C. § 

28-32-21(2). Section 28-32-35, N.D.C.C., which addresses procedures at the 

hearing, provides “the person presiding at the hearing shall afford to all parties 

and other persons allowed to participate the opportunity to respond, present 

evidence and argument, conduct cross-examination, and submit rebuttal 

evidence, except as restricted or conditioned by a grant of intervention or by a 

prehearing order.” See also Singha, 1998 ND 42, ¶ 28 (“In administrative 

contexts, we have held a hearing generally contemplates the presentation of 

evidence and testimony.”). The right to a hearing is a significant procedural 

protection in the AAPA. See Id. at ¶ 27 (“The statutory scheme of the A.A.P.A. 

generally contemplates formal hearing procedures for deciding matters before 

an agency.”); Steele, at 701 (explaining a formal evidentiary hearing is required 

under the AAPA “unless the parties either agree otherwise or there is no 

dispute of a material fact”).

As noted by the majority, “there was no hearing in this case as ordinarily 

contemplated by the AAPA.” Majority, at ¶ 13. Opp’s “Petition of Appeal” to the 

district court states: “In a letter from Casey Miller, Chief Agent, North Dakota 

Bureau of Criminal Investigation dated April 20, 2022, Fritz Opp was notified 

that he was not going to be issued a Class 1 North Dakota Concealed Weapon 

License.” Neither party filed a copy of the April 20, 2022 letter with the court. 

Thus, the record does not show whether BCI provided Opp an opportunity for 

a hearing as required by the AAPA. I agree with the majority’s decision not to 
13

address this issue because Opp did not raise this issue on appeal, and because 

Opp’s notice of appeal and specifications of error were untimely. However, as 

noted earlier, I write separately to emphasize the majority’s decision should 

not be read as holding an applicant for a concealed weapons license is not 

entitled to a hearing prior to BCI issuing a final order denying the application.

Based on the limited record, it appears BCI issued an initial 

determination based on Opp’s application. However, under the AAPA, BCI was 

required to provide Opp an opportunity for a hearing prior to issuing a final 

order denying his application. N.D.C.C. § 28-32-01(1) (“‘Adjudicative 

proceeding’ means an administrative matter resulting in an agency issuing an 

order after an opportunity for hearing is provided or required.” (emphasis 

added)); Singha, 1998 ND 42, ¶¶ 30, 32 (remanding “the case to the Board for 

proceedings consistent with the requirements of the A.A.P.A.” because the 

Board denied Singha’s application “without complying with the procedural 

formalities required by the A.A.P.A.”); Steele, 273 N.W.2d at 701 (“We are not 

ruling out the use of an informal hearing (a non-evidentiary hearing) for 

making an initial determination provided the Bureau will afford the claimant 

a formal hearing (an evidentiary hearing) upon request if a dispute of a 

material fact exists, as contemplated by the due process requirements set out 

by the legislature in Ch. 28-32, NDCC.”).

The majority correctly notes “there is no indication in the record that 

Opp sought a hearing[.]” Majority, at ¶ 7. However, nothing in the record 

indicates BCI notified Opp of his right to request a hearing. See Steele, 273 

N.W.2d at 700 (distinguishing a case where claimant “was notified of his right 

to seek reconsideration which would ultimately lead to an evidentiary hearing 

but elected to treat the decision as final and appealed to the court”). Further,

neither N.D.C.C. ch. 62.1-04 nor N.D. Admin. Code ch. 10-12-01 informed Opp 

he could request a hearing. Rather, N.D.C.C. § 62.1-04-03(8) and N.D. Admin. 

Code § 10-12-01-10 only provide Opp could appeal to the district court of 

Burleigh County. Therefore, arguably Opp justifiably believed his only remedy 

was to appeal BCI’s letter to the district court of Burleigh County.
14

To avoid any possible confusion created by N.D. Admin. Code § 10-12-01-

10 as currently promulgated, the Attorney General may consider amending 

N.D. Admin. Code ch. 10-12-01 to specifically identify applicants’ right to a 

hearing under the AAPA and the process and timeline to request a hearing. If 

it is not already doing so, BCI may consider specifically notifying applicants of 

their right to request a hearing in its initial letter notifying applicants of the 

denial of their application.

The legislature may consider amending N.D.C.C. § 62.1-04-03 to 

specifically reference applicants’ right to a hearing under the AAPA. See, e.g., 

N.D.C.C. §§ 38-14.2-15, 43-02.2-10, 43-03-20, 43-10-23; 43-13-22; 43-23-11.1(2); 

43-30-13; 43-31-11; 57-60-11. Alternatively, if the legislature intends N.D.C.C. 

§ 62.1-04-03(8) to grant a right to a direct appeal to the district court of 

Burleigh County, exempting applications for a concealed weapons license from 

the procedural requirements of the AAPA, it may consider clearly and explicitly 

doing so. It may also consider establishing the requirements and process for 

the direct appeal, such as any timelines for the appeal to be taken, the standard 

of review, and the record on appeal. See, e.g., N.D.C.C. § 2-04-11.

Douglas A. Bahr