The North Dakota Supreme Court lifted the writ of prohibition and assumed supervisory jurisdiction over whether NDPSC had jurisdiction over electric services to DTI. See In re Application of Otter Tail Power Co., 451 N.W.2d 95, 97 (N.D. 1990). In May 1989, after the North Dakota Supreme Court lifted the writ of prohibition, NDPSC determined that it had jurisdiction to regulate electric service to DTI.
Thus, the Montana "consensual relationship" exception has no application to the facts of this case. The North Dakota Supreme Court also addressed this issue in a case entitled In Re Application of Ottertail Power Co., 451 N.W.2d 95 (N.D. 1990). The Supreme Court was asked to apply Montana's main rule and the two recognized exceptions to the provision of electrical services to the Fort Totten Indian Reservation. The North Dakota Supreme Court went through a detailed analysis to determine the parameters of a consensual relationship dealing with a supplier of electricity and the consumer of electricity.
[ΒΆ 18] Here, the Turtle Mountain Tribe requested a nonmember, Otter Tail, to provide electric service to a tribal-owned casino on tribal trust land within the Turtle Mountain Indian Reservation. The parties stipulated and the Commission found the Sky Dancer Casino is a tribal-owned facility, the Sky Dancer Casino is located on tribal trust property, the Tribe βhas a long-standing tribal utility code,β and the Tribe passed a November 23, 2011, resolution authorizing Otter Tail to provide electric service to the Sky Dancer Casino. [ΒΆ 19] In Baker Elec. Coop., Inc. v. Public Serv. Comm'n, 451 N.W.2d 95, 97β107 (N.D.1990), a case in which the affected tribe did not appear and in which this Court held the utility did not have standing to assert the sovereign interests of the tribe, this Court issued a writ of supervision vacating a district court's writ of prohibition that forbade the Commission to exercise its jurisdiction over the regulation of electrical service on the Fort Totten Indian Reservation. A concurrence by Justice Levine agreed the utility did not have standing to assert the affected tribe's self-government interests. Id. at 107β08 (Levine, Justice, concurring in result).
After initial proceedings in the North Dakota state district court, the North Dakota Supreme Court assumed jurisdiction. In Application of Otter Tail Power Co., 451 N.W.2d 95 (N.D. 1990), the North Dakota Supreme Court reached two alternative holdings. First, because the Tribe was not a party to the proceedings, the court held that Otter Tail did not have standing to argue that the NDPSC's assertion of jurisdiction over the Reservation would impair tribal sovereignty.
20. Baker Electric claimed the right to supply the plant, and in proceedings initiated before the North Dakota Public Service Commission, was successful in obtaining an order requiring Otter Tail to discontinue service to the plant. (Application of Otter Tail Power Company, 451 N.W.2d 95 (ND 1990). 21. The wisdom or lack thereof in the order of the North Dakota Public Service Commission is not in issue in this court, and the statements of the utility parties extolling the equities of the position of each as opposed to the other is a waste of paper.
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. SeeIn 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 without a remedy. Such a result would be unjustifiable provided Minn-Kota is the sole reason for Otter Tailβs application in the first place.
This Court has ruled that a private party has no standing to advance a tribe's interests when the tribe itself fails to appear. See Baker Elec. Coop., Inc. v. Pub. Serv. Comm'n, 451 N.W.2d 95, 97β98 (N.D.1990). Second, in determining whether conduct threatens or has a direct effect on the political integrity, economic security, or health or welfare of the tribe, a court must look at the βsubject matterβ of the lawsuit.
See Three Tribes I, 476 U.S. at 148-49; Zaman, 946 P.2d at 462; Wacondo v. Concha, 873 P.2d 276, 280 (N.M.Ct.App. 1994) ("[N]either federal law nor tribal sovereignty precludes Indian plaintiffs from pursuing their state remedies against a nonmember Indian in state court. "); American Indian Law Deskbook, supra, at 156 ("Whenever a tribe or a tribal member seeks to assert a reservation-based claim against a nonmember, exercise of state adjudicatory jurisdiction is permissible."); see also In re Otter Tail Power Co., 451 N.W.2d 95, 98 (N.D. 1990) (holding a public utility lacked standing to assert an Indian tribe's sovereign rights of self-government). [ΒΆ 22] The court in Zaman held state court jurisdiction over a paternity action brought by a member of a tribe against a non-Indian did not infringe on the tribe's right to self-government even when the events leading up to the paternity action occurred on the tribe's reservation.
[ΒΆ 66] Previously, we have concluded a utility company had no standing to advance tribal sovereign rights of self-government for alleged unlawful interference with the tribe's interests. In reApplication of Otter Tail Power Co., 451 N.W.2d 95, 97 (N.D. 1990); see alsoSwanson v. N.D. Workers Comp. Bureau, 553 N.W.2d 209, 212 (N.D. 1996) (determining a claimant lacked standing to challenge the Bureau's alleged lack of a statutorily required peer review system for determining reasonableness of fees and payment denials for unjustified treatments, because under the statute only doctors or health care providers could appeal adverse Bureau decisions regarding fee reasonableness and payment denials); Statev. Tibor, 373 N.W.2d 877, 880-81 (N.D. 1985) (concluding a criminal defendant had no standing to raise a vagueness challenge to a criminal statute, because he did not demonstrate the statute was vague as applied to his own conduct).
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 cannot rest his claim to relief on the legal rights and interests of third parties.State v. Carpenter, 301 N.W.2d 106, 107 (N.D. 1980) (citations omitted); see also Application of Otter Tail Power Co., 451 N.W.2d 95, 98 (N.D. 1990) (quoting Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 80, 98 S.Ct. 2620, 2634, 57 L.Ed.2d 595 (1978)) ("The reasons for this limitation on standing are `the avoidance of the adjudication of rights which those not before the Court may not wish to assert, and the assurance that the most effective advocate of the rights at issue is present to champion them.'"). Swanson is certainly the most effective advocate on whether appropriate peer review affecting his health has taken place.