Standing to Appeal a PSC CPCN Requires Participation During the Agency Proceeding; Publication Notice Defeats “Good Cause” for Post-Hoc Intervention

Case: Wano Township v. North Dakota Public Service Comm'n, 2026 ND 146 (N.D. July 23, 2026)  |  Court: Supreme Court of North Dakota

1. Introduction

This appeal arose from the North Dakota Public Service Commission’s (“PSC”) grant of a certificate of public convenience and necessity (“CPCN”) to Otter Tail Power Company and Montana-Dakota Utilities Co. (together, “Utility Companies”) for an 85-mile, 345-kilovolt transmission line from Jamestown to Ellendale. After the PSC issued the CPCN order in November 2024—and after the period to seek reconsideration or judicial review had elapsed—a coalition of townships, landowners, and entities (collectively, “Petitioners”) sought to intervene in May 2025 and asked the PSC to reopen the matter.

Petitioners’ core contention was that the PSC proceeded under the wrong statutory framework—asserting the Energy Conversion and Transmission Facility Siting Act, N.D.C.C. ch. 49-22, governed (including “direct notice” requirements) rather than the Territorial Integrity Act, N.D.C.C. ch. 49-03—and that the CPCN order lacked adequate findings and reasoning to be “final.” The PSC denied intervention, emphasizing finality and expired deadlines and noting additional, future permitting proceedings (corridor compatibility and route permitting) would offer further opportunities to raise concerns.

The district court dismissed the portion of Petitioners’ appeal challenging the CPCN order as untimely and affirmed the denial of intervention. On further appeal, the North Dakota Supreme Court affirmed, but on a central threshold ground: Petitioners lacked standing to appeal the CPCN order because they did not participate in the underlying CPCN proceeding. The Court also upheld the PSC’s discretionary denial of post-hoc intervention.

2. Summary of the Opinion

3. Analysis

3.1 Precedents Cited

The Court’s reasoning is built on a line of North Dakota administrative-law cases defining (1) who may seek judicial review of an agency decision and (2) when late intervention in administrative adjudications is permissible.

A. Standing and the participation requirement

• State v. Leingang, 2009 ND 38, ¶ 17, 763 N.W.2d 769
  Cited for the proposition that standing is a threshold, legal question reviewed de novo. In Wano Township, this frames the Court’s insistence on resolving standing before any merits-based arguments about statutory authority or notice.
• Minn-Kota Ag Prods., Inc. v. N.D. Pub. Serv. Comm'n, 2020 ND 12, ¶ 11, 938 N.W.2d 118
  Cited to emphasize that standing in the administrative context is “broad” and that “a narrow or limited construction should not be placed on who may be a party for purposes of appeal.” Importantly, the Court uses Minn-Kota not to expand standing here, but to clarify the low bar for the participation prong—then to show Petitioners did not clear even that low bar.
• In re Bank of Rhame, 231 N.W.2d 801, 808 (N.D. 1975)
  The foundational three-part standing test for judicial review of administrative decisions: (1) directly interested; (2) factually aggrieved; and (3) participated in the proceeding. The Court treats participation as essential, and dispositive on this record.
• Shark v. U.S. W. Commc'ns, Inc., 545 N.W.2d 194, 197 (N.D. 1996)
  Used to explain that the statutory definition of “party” (N.D.C.C. § 28-32-01(9)) helps identify parties before the agency, but “added nothing” to the distinct concept of standing for judicial review—reinforcing that standing is not merely a labeling exercise and includes the Bank of Rhame participation requirement.
• Minn-Kota, 2020 ND 12, ¶¶ 21-23
  Provides the Court’s modern articulation of “minimal” participation: raising an issue or advocating for an outcome during the administrative proceeding. The Court contrasts Petitioners’ total absence from the CPCN record with the facility in Minn-Kota that submitted testimony and documents supporting a specific result.
• Shark v. United States West Communications, 545 N.W.2d 194
  Offers the counterexample: a customer’s letter praising a commissioner and complaining about scheduling did not amount to participation because it raised no substantive issue and advocated no position on the merits of the transfer. The Court analogizes Petitioners to the unsuccessful appellant in Shark: actions taken after the order (or communications not directed to the merits during the proceeding) do not satisfy the participation prong.
• City of Casselton v. N.D. Pub. Serv. Comm'n, 307 N.W.2d 849, 852 (N.D. 1981)
  Cited to support the Court’s decision not to address timeliness after concluding Petitioners lacked standing—i.e., standing (and jurisdictional consequences) can make timeliness moot.

B. Appealability of intervention denials and standards of review

• Energy Transfer LP v. N.D. Priv. Investigative & Sec. Bd., 2022 ND 85, ¶ 12, 973 N.W.2d 394
  Establishes that an administrative order denying intervention is immediately appealable because it prevents the movant from becoming a party. This is crucial: although Petitioners could not reach the CPCN merits (no standing), they could obtain appellate review of the denial of intervention.
• Reile v. State by & through Workforce Safety & Ins., 2025 ND 6, ¶¶ 8-9, 16 N.W.3d 212
  Cited for the “limited” scope of review under the Administrative Agencies Practice Act, N.D.C.C. ch. 28-32, reinforcing deference to agency factfinding and the enumerated grounds for reversal.
• Cap. Elec. Coop., Inc. v. City of Bismarck, 2007 ND 128, ¶ 31, 736 N.W.2d 788
  Used to confirm that appellate review of the PSC decision mirrors the district court’s review; legal issues are reviewed de novo; factual determinations are reviewed for whether a reasoning mind could have reached them by the weight of the evidence.
• Energy Transfer, 2022 ND 85, ¶ 15 and Pub. Serv. Comm'n v. Grand Forks Bean Co., 2017 ND 201, ¶ 16, 900 N.W.2d 255
  Supply the abuse-of-discretion framework governing intervention decisions: reversal is warranted only for arbitrary/unreasonable action, irrational process, or legal misapplication. The Court applies this to uphold the PSC’s denial of late intervention.

C. Reasonableness of notice in PSC proceedings

• Eckre v. Pub. Serv. Comm'n, 247 N.W.2d 656, 664 (N.D. 1976)
  Provides the controlling principle that the reasonableness of PSC notice is assessed in light of the “scope and nature of the hearing.” The Court uses this to conclude that publication in fourteen newspapers (including each affected county’s official newspaper), identifying the project and issues and inviting comments, was sufficient to inform the public and thus did not amount to “good cause” justifying post-hoc intervention.

3.2 Legal Reasoning

A. Standing: participation must occur before the final agency decision

The Court’s central doctrinal move is straightforward: even under North Dakota’s “broad” approach to administrative standing, Bank of Rhame requires participation in the agency proceeding as a condition to judicial review. The Court reads participation as an ex ante requirement—meaning involvement must occur during the decision-making process, not after the fact.

Petitioners attempted to rely on post-order conduct (meetings, local permit denials, and a petition to reopen). The Court rejected this as legally irrelevant to the participation prong because none of it placed Petitioners’ concerns before the PSC while the CPCN decision was under consideration. In effect, the Court treats participation not as a general demonstration of interest, but as a procedural predicate ensuring the agency had an opportunity to hear and address the appellant’s position in the original adjudication.

B. The Court limits merits review by posture: no “bootstrapping” CPCN validity through intervention appeal

Petitioners sought to force a ruling on the alleged statutory misfit (ch. 49-03 vs. ch. 49-22) and asserted “direct notice” defects, arguing these questions were “intertwined” with intervention. The Court drew a clean line: the appeal from denial of intervention is properly before it, but that does not open the door to a collateral merits review of the underlying CPCN order—especially where standing to appeal the CPCN order is absent. The operative question becomes whether the PSC abused its discretion in denying intervention, not whether the original order was correct.

C. Intervention after a final decision: “unusual,” requires “good cause,” and is reviewed deferentially

Building on Energy Transfer LP v. N.D. Priv. Investigative & Sec. Bd., the Court reiterates that post-final-order intervention is “unusual and not often granted,” and PSC rules bar late intervention absent “good cause” (N.D. Admin. Code § 69-02-02-05(2)). The Court adopts Minn-Kota’s functional definition of good cause: a showing why late intervention should be allowed “under the circumstances.”

Applying abuse-of-discretion review, the Court held the PSC rationally concluded: (1) its CPCN decision was final; (2) reconsideration and appeal deadlines had expired; and (3) Petitioners could raise concerns in subsequent corridor-compatibility and route-permit proceedings. That reasoning was neither arbitrary nor a misapplication of governing law.

D. Notice: publication was reasonable given the proceeding’s nature

Petitioners’ best “good cause” theory was that they lacked “direct notice.” Without deciding which statutory regime ultimately governs this kind of line, the Court held the PSC’s publication notice was reasonable and sufficient for the CPCN proceeding’s public-interest focus. The Court emphasized the breadth of publication (fourteen newspapers, including official county newspapers), the content of the notices (project identification, issues, invitation to comment), and Eckre’s context-driven standard for judging notice.

The Court also signaled a timing principle: alleged individualized due-process impacts can be litigated “when those issues arise,” i.e., in later proceedings where specific property or personal interests may be more directly at stake.

3.3 Impact

• Reinforces a bright-line practical rule for challengers of PSC orders: if you want judicial review of a final PSC order, you must make at least “minimal” merits-directed participation before the order issues. Post-order activism does not cure the defect.
• Strengthens administrative finality: by denying standing to nonparticipants, the decision reduces the risk of late, collateral attacks on major infrastructure approvals after reliance interests have formed.
• Channels disputes into the correct procedural vehicle: denial of intervention remains immediately appealable, but that appeal will be confined to whether the agency reasonably denied intervention—not a backdoor merits appeal of an unchallenged final order.
• Clarifies “good cause” for late intervention in PSC proceedings: generalized dissatisfaction with the underlying decision or after-the-fact discovery of objections will likely be insufficient where publication notice was broad and the proceeding invited public comment.
• Practical consequences for local governments and landowners: towns/townships and landowners opposing transmission lines must monitor PSC dockets and respond during the CPCN phase (or other early procedural windows) to preserve appellate options, even if later siting/route proceedings remain.

4. Complex Concepts Simplified

• CPCN (Certificate of Public Convenience and Necessity): An agency authorization that a proposed utility project serves the public interest and may proceed subject to conditions and additional permitting.
• Standing (administrative appeals): The legal right to ask a court to review an agency decision. Here, standing required (among other elements) that the challenger participated in the agency proceeding.
• Participation (the “minimal” requirement): Doing something during the agency proceeding that puts your position before the agency—e.g., submitting comments/testimony, raising an issue, or advocating for a specific outcome. Actions after the final order do not count.
• Intervention: The process of becoming a party in an administrative case. Intervention is typically easier during an ongoing proceeding and much harder after a final decision.
• “Good cause” for late intervention: A specific, persuasive reason explaining why intervention should be allowed despite lateness, considering fairness and the orderly conduct/finality of the proceeding.
• Abuse of discretion: A deferential appellate standard. The court does not ask whether it would have decided differently, but whether the agency’s decision was irrational, arbitrary, or legally mistaken.
• Notice by publication: Informing the public through newspapers (often including official county newspapers). Under Eckre, adequacy depends on the scope and nature of the hearing.

5. Conclusion

Wano Township v. North Dakota Public Service Comm'n solidifies two procedural guardrails in North Dakota administrative law for PSC matters. First, standing to appeal a final PSC order requires at least minimal participation during the underlying agency proceeding; post-order efforts cannot supply the missing participation. Second, post-hoc intervention is exceptional and demands “good cause,” which is not shown where the PSC provided broad publication notice and where the agency rationally relied on finality and available future proceedings to address concerns.

The decision’s broader significance lies less in transmission-line policy than in procedure: it encourages timely engagement in agency processes, protects final agency decisions from late collateral attacks, and confines intervention appeals to whether the agency reasonably denied party status—rather than reopening unappealed merits.