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TJ Jerke, Forum News Service, Published September 04 2013

Judge says PSC did not violate federal law

BISMARCK – A federal judge says a North Dakota conservation group failed to prove that state Public Service Commission policy changes on the coal industry were in violation of federal law or caused any harm.

The Dakota Resource Council, a Dickinson-based nonprofit conservation group, had filed a complaint in 2012.

U.S. District Court Judge Daniel Hovland said the the council did not show in any court documents a specific permit request, application, amendment or termination decision by the commission that caused harm.

“Instead, the plaintiff relies exclusively on hypothetical future harms that are untethered to any site-specific action concerning any of the challenged (issues),” Hovland wrote in denying the complaint.

Hovland wrote that the council believes at least five memorandums by the commission created “substantive changes to the state program.”

But the council’s allegations were “vague, nonspecific challenges to the policy memoranda issued by the PSC,” he said.

The council’s executive director, Don Morrison, said Hovland’s opinion mischaracterizes the entire lawsuit, which was to make sure citizens could participate in the decision-making process.

“We’re concerned about how they are making the changes,” he said.

Under federal law, he said the policy changes must be approved by the Department of the Interior. He doesn’t believe the previous changes were.

“In a democracy, there should be public input and they are getting around that,” he said. “We need to make the government follow the law. It’s unbelieveable that government agencies cannot follow the law.”

The case is linked to a separate lawsuit filed the same day – but not ruled upon – that is seeking to stop the commission from regulating the mining industry.

The Sierra Club and Dakota Resource Council are accusing North Dakota Public Service Commissioner Brian Kalk and former commissioner Kevin Cramer of taking improper campaign contributions from coal mining officials.

Both of the Republicans have said the donations were legal and properly reported.

The lawsuit names U.S. Interior Secretary Sally Jewell, saying she should require federal regulators to step in.

North Dakota’s mining regulations must be at least as stringent as federal laws, and the federal government can intervene if states aren’t following their own or federal law.