WHITE EARTH BAND OF OJIBWE
Tribal code
Ask Donna
What actually matters in this document.
Text
WHITE EARTH BAND OF OJIBWE
TITLE 23: UTILITIES CODE
DIVISION A .................................................................................................................................................... 4
CHAPTER 1. GENERAL PROVISIONS............................................................................................................... 4
§1.01.
Short Title .................................................................................................................................. 4
§1.02.
Findings ..................................................................................................................................... 4
§1.03.
Purpose ..................................................................................................................................... 5
§1.04.
Interpretation of the Code ........................................................................................................ 6
§1.05
Territory, Persons and Property Affected ................................................................................. 6
§1.06.
Definitions ................................................................................................................................. 6
§1.07.
Sovereign Immunity .................................................................................................................. 7
CHAPTER 2. TRIBAL UTILITY COMMISSION ................................................................................................... 8
§2.01.
Creation of Commission ............................................................................................................ 8
§2.02.
Number and Selection of Commissioners................................................................................. 8
§2.03.
Terms of Office .......................................................................................................................... 8
§2.04.
Vacancies................................................................................................................................... 9
§2.05.
Resignation................................................................................................................................ 9
§2.06.
Removal .................................................................................................................................... 9
§2.07.
Offices of Tribal Utility Commission .......................................................................................... 9
§2.08.
Compensation of Commissioners ............................................................................................. 9
§2.09.
Quorum ..................................................................................................................................... 9
§2.10.
Majority Vote ............................................................................................................................ 9
§2.11.
Tribal Utility Commission Executive Director ........................................................................... 9
§2.12.
Tribal Utility Commission Account Established....................................................................... 10
CHAPTER 3. POWERS AND DUTIES OF COMMISSION ................................................................................. 10
§3.01.
Jurisdiction and Powers of Commission ................................................................................. 10
§3.02.
Accounting Systems ................................................................................................................ 12
§3.03.
Annual Reports by Utilities ..................................................................................................... 13
§3.04.
Depreciation Rates and Practices ........................................................................................... 13
§3.05.
Right of Entrance; Inspection .................................................................................................. 13
§3.06.
Production of Records............................................................................................................. 13
§3.07.
Rules of the Commission......................................................................................................... 14
§3.08.
Commission Employees and Expenses ................................................................................... 14
§3.09.
Bonds....................................................................................................................................... 15
§3.10.
Records of the Commission .................................................................................................... 15
CHAPTER 4. DUTIES OF PUBLIC UTILITIES ................................................................................................... 15
§4.01.
Duty to Serve All within all the Service Territory .................................................................... 15
§4.02.
Duty to Establish Reasonable and Non-Discriminatory Charges for Services......................... 16
§4.03.
Duty to Follow Prescribed System of Accounts ...................................................................... 16
§4.04.
Duty to Obey and Comply with Orders of the Commission .................................................... 16
§4.05.
Duty to Maintain Service During Cold, & Extreme Heat Weather Conditions........................ 16
§4.06.
Utility Customer Suits ............................................................................................................. 16
DIVISION B................................................................................................................................................... 17
CHAPTER 1. ELECTRIC UTILITIES .................................................................................................................. 17
§ 1.01
Statement of Policy. ................................................................................................................ 17
§1.02.
Definitions ............................................................................................................................... 17
§1.03.
Information on Reservation Easements ................................................................................. 18
§1.04.
Assigned Service Areas............................................................................................................ 18
§1.05.
Enforcement of Chapter ......................................................................................................... 19
§1.06.
Terms by Which Facilities of One Utility May Cross Those of Another Utility ........................ 19
CHAPTER 2. ELECTRIC UTILITY RATES AND TARIFFS.................................................................................... 19
§2.01
Electric Utility Ratemaking and Service Standards ................................................................. 19
§2.02.
Application for Changes in Tariff Rates; Public Notice to Customers ..................................... 22
§2.03.
Hearing by Commission on Proposed Change or Rates .......................................................... 23
§2.04.
Factors in Establishing Rate Adjustments ............................................................................... 23
§2.05.
Non-Interference with Federal Programs ............................................................................... 23
§2.06.
Just and Reasonable Rates ...................................................................................................... 24
DIVISION C................................................................................................................................................... 25
TELECOMMUNICATIONS COMPANIES ........................................................................................................ 25
DIVISION D .................................................................................................................................................. 25
PIPELINE UTILITIES ...................................................................................................................................... 25
DIVISION E ................................................................................................................................................... 25
GAS UTILITIES .............................................................................................................................................. 25
2
DIVISION F ................................................................................................................................................... 25
WATER COMPANIES .................................................................................................................................... 25
DIVISION G .................................................................................................................................................. 25
HEATING UTILITIES ...................................................................................................................................... 25
DIVISION H .................................................................................................................................................. 25
OTHER PUBLIC UTILITIES ............................................................................................................................. 25
DIVISION I .................................................................................................................................................... 26
CHAPTER 1. HEARING PROCEDURES ........................................................................................................... 26
§1.01.
Rules and Regulations ............................................................................................................. 26
§1.02.
Depositions ............................................................................................................................. 26
§1.03.
Subpoena; Witnesses .............................................................................................................. 26
§1.04.
Oaths; Contempt; Examiner's Powers .................................................................................... 26
§1.05.
Testimony and Production of Records; Perjury ...................................................................... 26
§1.06.
Rehearings Before Commission .............................................................................................. 27
§1.07.
Conclusive Effect of Orders and Decisions of Commission ..................................................... 27
§1.08.
Effective Date of Orders and Decisions................................................................................... 27
§1.09.
Decisions of Commission; Rescission or Amendment ............................................................ 27
§1.10.
Appeal From Decision of Commission .................................................................................... 28
§1.11.
Judicial Review ........................................................................................................................ 28
§1.12.
Stay on Judicial Review; Bond ................................................................................................. 29
§1.13.
Appeal to Tribal Court of Appeals ........................................................................................... 29
CHAPTER 2. CIVIL ENFORCEMENT............................................................................................................... 29
§2.01.
Purpose ................................................................................................................................... 29
§2.02.
Civil Action for Penalties ......................................................................................................... 30
§2.03.
Violation of This Title or Commission Order or Rule .............................................................. 30
§2.04.
Cumulative Fines ..................................................................................................................... 30
3
DIVISION A
CHAPTER 1. GENERAL PROVISIONS
§1.01.
Short Title
This Title shall be known as the White Earth Band of Ojibwe Utilities Code.
§1.02.
Findings
1. The power to regulate economic activity and persons engaged in business activities on lands
within the jurisdiction of the Tribe, including the provision of utility services, is an inherent
and essential part of the sovereign authorities of the White Earth Band of the Ojibwe Indians.
This power is within the retained sovereignty of the Tribe over the White Earth Reservation,
established pursuant to the Treaty with the Chippewa of the Mississippi of 1867, 16 Stat. 719,
except to the extent it has been limited or withdrawn by federal law. This Title is enacted
pursuant to Article VI, Section 1, of the revised constitution of the Minnesota Chippewa Tribe,
as amended, which authorizes the White Earth Reservation Business Committee to enact laws;
raise revenue; manage the Tribe’s finances; promote and protect public welfare, safety, and
cultural and political sovereignty of the citizens of the White Earth Nation; establish
subordinate boards; and manage the government, lands, waterways, resources, transportation,
business enterprises, and other assets of the White Earth Nation.
2. The White Earth Reservation consists of tribal trust land, individual Indian trust and allotted
lands, and tribal and non-Indian fee lands within the exterior boundaries of the White Earth
Reservation. Utility lines, pipelines, telecommunications, and other rights-of-ways have been
granted to utilities across the White Earth Reservation. Utilities enjoy existing easements
across Reservation lands and are expected to seek additional easements, the regulation and
granting of which are within the sole jurisdiction of the Tribe. As a result, every utility that
operates within the Reservation enters into voluntary contractual relationship with the Tribe,
Tribal Members and non-members, to provide services, operate facilities, and construct and
erect pipelines, transmission lines, poles, towers, and other improvements upon and across
Reservation lands.
3. The services, rates, policies, procedures, and practices of every utility operating within the
Reservation have a substantial impact on the economic security, health, welfare and general
well-being of the Tribe, its members, and all residents of the Reservation. Tribal members and
non-members within the boundaries of the White Earth Reservation are entitled to reliable,
safe, affordable, and environmentally sound utility services, which are a necessity of modern
life. The economic security, health and welfare of the Tribe, tribal members, and non-members
depend on public utilities, because many homes of tribal members, especially HUD financed
homes, are "all electric," that is, heated solely by electricity due to the lack of a practical heat
source for some tribal members and nonmembers; the health and very lives of many tribal
4
members and nonmembers are dependent upon an assured flow of electricity during the harsh,
subzero winter months; there is a lack of practical transportation for many elderly tribal
members and nonmembers during the harsh, subzero winter months such that many of them
are dependent on reliable utility service; and utility costs have a substantial financial impact
on tribal government operations, tribal members and non-members, and economic enterprises.
In addition, the generation, transmission, distribution, conveyance and delivery of certain
utility services such as electricity, natural gas and propane are inherently dangerous and
environmentally risky activities that can have a substantial and direct negative impact on public
health and safety within the White Earth Reservation. Tribe recognizes that the State of
Minnesota also retains concurrent jurisdiction over the state regulated utilities that also operate
within the Reservation. This concurrent jurisdiction does not prevent the Tribe from exercising
its sovereign authority to regulate utilities within the Reservation or from setting policy related
to utility services.
§1.03.
Purpose
The Tribal Council hereby declares it to be in the public interest that all utilities located, operating
or providing services within the Reservation be regulated as herein provided. The purposes of this
Title include:
1. to ensure that all retail consumers of utility services and commodities within the Reservation
have adequate, safe and reliable utility services at reasonable rates, consistent with the
Tribe's laws and policies, as may be adopted from time to time, related to utility services;
2. to ensure that utility services are provided in a manner that will not harm but rather will
protect the interests of existing and future tribal members in a efficient and healthy
reservation environment, including protection of the land, animals, and plants of the
Reservation environment from adverse impacts of utility operations;
3. to ensure utility services are provided in a manner that reduces carbon emissions, promotes
the use of renewable resources, and complies with the Tribe's energy and economic
development policy goals as may be adopted from time to time;
4. to regulate utility services, utility infrastructure and equipment owned and controlled by
the Tribe;
5. to avoid unnecessary segmentation of utility service within the Reservation among multiple
utilities owned or controlled by non-tribal members;
6. to avoid duplication of facilities that may increase the costs of service to the Tribe, Tribal
Members, and non-members;
7. to minimize disputes between utilities owned or controlled by non-tribal members that may
result in inconvenience or diminished efficiency of services provided to the Tribe, Tribal
Members, and non-members within the Reservation;
8. to regulate all utilities located, operating or providing services within the Reservation to the
extent permitted by federal law, including with respect to: tribal utility policies and
standards; rates; utility easements; safety; reliability, environmental protection, connection
5
of service; disconnection and reconnection of service; deposit and overdue payment
charges; and other utility activities; and
9. to prohibit discriminatory or unreasonable preferences or advantages to any consumer or
group of consumers by providers of utility services.
§1.04.
Interpretation of the Code
This Code shall be liberally construed and applied to carry out its purpose and intent.
§1.05
Territory, Persons and Property Affected
To the extent not prohibited by federal law, this Title shall apply to the following:
1. The White Earth Reservation within the historical boundaries of the Reservation established
in Section 16, of the Act of June 18, 1934 (48 Stat. 984), including all lands, islands, waters,
roads, and bridges, or any interests therein, whether in trust or non-trust status, and
notwithstanding the issuance of any patent or right-of-way, and such other lands, islands,
waters or any interest therein thereafter added to the Reservation;
2. All persons and property within any geographical area referred to in Subsection (1) that are
subject to the jurisdiction and governmental power of the Tribe.
§1.06.
Definitions
In this Title, except where otherwise specifically provided or the context otherwise requires, the
following terms and expressions shall have the following meanings:
1. "Commission" means the Tribal Utility Commission created and established under this Title.
2. "Commissioner" means one of the members of the Commission.
3. "Company" means a private or public corporation incorporated under the laws of any nation,
state or tribe, a limited liability company, a joint venture, a partnership, a municipality, an
association, a non-profit cooperative whether incorporated or not, a joint stock association,
a business trust, or any federal, state, tribal or municipal political subdivision or agency, but
shall not mean any tribal entity created under Title 23 of this Code.
4. "Executive Director" means the Tribal Utility Commission Executive Director acting in his
official capacity.
5. "Municipality" means any town, city, or other local government, however organized, but
shall not include the Tribe.
6. "Rate" means every compensation, charge, fare, toll, tariff, rental, and classification, or any
of them, demanded, observed, charged, or collected by any utility for any service, product,
or commodity, offered by it to the public, and any rules, regulations, practices, or contracts
affecting any such compensation, charge, fare, toll, rental, tariff, or classification.
7. "Reservation" means all lands within the exterior boundaries of the White Earth Reservation,
established pursuant to the Treaty with the Chippewa of the Mississippi of 1867, under the
6
jurisdiction of the United States Government, notwithstanding the issuance of any patent,
and, including rights-of-way running through the reservation.
8. “Service" means the furnishing by any utility of any service product or commodity, and the
installation, removal, or repair of equipment or facilities for generating, delivering or
measuring the service product or commodity of any utility.
9. “RBC” means the White Earth Reservation Business Committee, the duly elected governing
body of the White Earth Reservation pursuant to Article VI, Section 1, of the revised
constitution of the Minnesota Chippewa Tribe, as amended, and organized under Section 16,
of the Act of June 18, 1934 (48 Stat. 984).
10. "Tribal Utility Commission Account" means the account in a federally-insured financial
institution established pursuant to Title 23, Division 2, Chapter 2, Section 2.13.
11. “Tribe” means the White Earth Band of Ojibwe.
12. "Tribal Court" means the courts of the White Earth Band of Ojibwe.
13. “Tribal Member” means an enrolled member of the White Earth Band of Ojibwe.
14. "Tribal Lands” means all land or real property which is held by the United States in trust for
the benefit of the White Earth Band of Ojibwe or, individual Indians, or land held in fee by
the Tribe or individual Indians within the Reservation, and any additional lands acquired for
the Tribe by the United States for the benefit of the Tribe or members of the Tribe.
15. "Utility" means any Company providing Utility Services within the Reservation.
16. "Utility Services" means: i.) providing telecommunications, natural gas, electricity, water,
sewer, or heat at retail; ii) constructing, operating, maintaining or controlling equipment or
facilities for furnishing telecommunications, natural gas, electricity, water, sewer or heat; iii)
engaged in the transportation of gas, oil, coal, and water; iv) the generation, transmission,
distribution of electricity, heat, natural gas, or water, whether at retail or wholesale; v)
electric utilities engaged in the generation and distribution of light, heat, or power; gas
utilities engaged in the distribution of natural, synthetic, or artificial gas; water companies
for the storage and distribution of water for domestic or other beneficial use; heating utilities
engaged in the distribution of heat; and all other utilities which operate, maintain, or control
any equipment or facilities used to provide a public utility service within the reservation.
§1.07.
Sovereign Immunity
The White Earth Band of Ojibwe, and all its constituent parts, including the Tribal Utility
Commission established pursuant to this Title, are immune from suit in any jurisdiction except to
the extent that such immunity has been expressly and unequivocally waived by the Tribe in this
Title or elsewhere. Nothing in this Title shall be construed as waiving the sovereign immunity of
the Tribe or any of its constituent parts, including the Tribal Utility Commission, except that after
exhaustion of administrative remedies as provided in Division I, a party aggrieved by a decision
of the Commission may petition the Tribal Court for review of such decision. Nothing in this Title,
nor any petition to the Tribal Court, nor any enforcement action taken pursuant to this Title,
including the filing of suit by the Commission for the collection of penalties, or interest, and for
7
recovery of reasonable attorney's fees and expenses incurred in bringing such action, shall
constitute a waiver of such sovereign immunity as to any claim for damages, attorney's fees or
costs, regardless of whether any such claim arises out of the same transaction or occurrence, or in
any other respect.
CHAPTER 2. TRIBAL UTILITY COMMISSION
§2.01.
Creation of Commission
The Tribe hereby creates and establishes, pursuant to this Title, the Tribal Utility Commission, a
governmental agency and political subdivision of the Tribe.
§2.02.
Number and Selection of Commissioners
1. The Commission shall comprise of five voting members appointed by the Tribal Council.
2. At least three Commissioners shall be members of the White Earth Band of Ojibwe.
3. All members of the Commission must be residents of the White Earth Reservation and
maintain residency during their term of office.
4. The Tribal Council shall designate a Commissioner to serve as the Chair of the
Commission.
a. The Chair shall preside over all Commission proceedings; sign all Commission
documents, decisions, orders, notices, or other papers approving execution on
behalf of the Commission; and ensure that the Commission's polices and duties are
properly executed.
5. The Tribal Council shall designate a Commissioner to serve as the Vice Chair of the
Commission.
a. The Vice Chair shall be clothed with all of the powers and duties of the Chair if the
Chair is unable to unable to preside or fulfill the duties of the Chair.
§2.03.
Terms of Office
1. Of the initial members of the Commission appointed under this Title, three members shall
be appointed for a term of office that will expire in three years and two members shall be
appointed for a term of office that will expire in two years. Each respective successor shall
be appointed in accordance with Section 2.02 and this Section of this Chapter.
2. Members of the Commission shall be appointed for a term of office of 3 years, and shall
continue to serve until their successor is appointed and qualified, notwithstanding any
provision to the contrary in this Chapter.
8
§2.04.
Vacancies
If any Commissioner shall die, resign, be removed or, for any reason, be unable to serve as a
Commissioner, the position shall be vacant and the RBC shall appoint another person to fill the
position. The term of office as a result of a vacancy, shall be for the balance of the unexpired term.
§2.05.
Resignation
Any Commissioner may resign by delivering a written resignation to the Chair of the Commission,
or in the case of a resignation by the President, to the Vice-Chair of the Commission. Such
resignation shall be effective upon confirmation of receipt by the Chair of the Commission, unless
otherwise provided by the terms thereof. A Commissioner's resignation under this Section or
removal under Section 2.06 below shall also terminate that Commissioner's status, if applicable,
as a presiding officer of the Commission.
§2.06.
Removal
A Commissioner may he removed by the Tribal Council for neglect of duty or for malfeasance,
misfeasance, or for misconduct in office.
§2.07.
Offices of Tribal Utility Commission
The Commission shall be provided with suitable office space, necessary office furniture,
stationery, books, maps, office technology, communications equipment, and office supplies, the
expense thereof to be paid by the Tribe pursuant to appropriations for such purposes.
§2.08.
Compensation of Commissioners
Compensation of Commissioners, if any, shall he determined by the RBC and shall be paid from
the General Fund of the Tribe.
§2.09.
Quorum
Three Commissioners shall constitute a quorum of the Commission. At a meeting at which there
is no quorum, the meeting must adjourn for a period not exceeding ten days in any one instance.
§2.10.
Majority Vote
Every finding, order, or decision approved by a majority of the members of the Commission shall
be deemed to be the finding, order, or decision of the Commission.
§2.11.
Tribal Utility Commission Executive Director
The members of the Commission, acting jointly, shall hire an Executive Director to assist the
Commission to perform the duties and exercise the powers granted under this Code and any laws
enacted by the Tribe or State. The Executive Director shall be responsible for the supervision and
9
direction of the Commission staff and for the necessary administrative activities of the
Commission, subject only to Commission direction and approval. In furtherance thereof, the
Executive Director may organize the Commission staff into such departments or divisions as
deemed necessary or appropriate, and may delegate and assign to one or more staff member or
members the supervision and direction of any such department section or division.
§2.12.
Tribal Utility Commission Account Established
1. There is hereby authorized and directed to be established an account in a federally insured
financial institution to be known as the Tribal Utility Commission Account.
2. The Tribal Utility Commission Account shall he an interest-bearing account and the funds
therein may be invested and reinvested as approved by the Council.
3. All fees, penalties, interest, charges, or other monies collected by the Commission in the
administration and enforcement of this Title shall be deposited in the Tribal Utility
Commission Account.
CHAPTER 3. POWERS AND DUTIES OF COMMISSION
§3.01.
Jurisdiction and Powers of Commission
1. The Tribal Utility Commission shall have general supervision of all Utilities providing
Utility Services on the Reservation, except as otherwise provided in this Code or any other
law.
2. The Commission shall have power to:
a. Hold investigations, inquiries and hearings concerning any matters covered by the
provisions of this Code, or by any other Titles relating to utilities subject to such rules
and regulations as the Commission may establish, consistent with due process.
i. Investigation and inquiries by the Commission may include but is not limited
to examining the reasonableness, prudence, or efficiency of any aspect of the
utility's operations, costs, management, decisions or functions that may affect
the adequacy, safety, efficiency or reliability of utility service or the
reasonableness or prudence of the costs underlying rates or charges for utility
service and operation on the Reservation.
ii. Hearings shall be held consistent to due process.
iii. In the conduct of any investigation, inquiry or hearing the provisions of the
Commission's procedural rules shall apply.
b. Require utilities or other persons to conform to the laws of the Tribe and to all rules,
regulations, and orders of the Commission not contrary to law.
c. Require filing of reports, rates, classifications, schedules, time tables, standards,
guidelines, or other internal utility documents in effect and used by such utilities or
10
other persons and all other information desired by the Commission relating to
investigations or any of the duties assigned to the Commission by this Title.
d. Compel obedience to its lawful orders by proceedings of mandamus or injunction or
other proper proceedings, in the name of the Tribe, in any court having jurisdiction
over the parties or over the subject matter, including but not limited to the Tribal Court.
e. Employ and fix the compensation of rate experts, engineers, cultural resource
specialists, and all other expert help, and assistance for rate increase application
hearings, investigations, and proceedings relating to utilities.
f. Cooperate with and receive technical and financial assistance from the United States or
any state for any purposes relating to utilities subject to the jurisdiction of the
Commission, including the authority to file any reports, hold hearings, and promulgate
regulations required for any such purposes.
g. Promulgate and enforce rules and regulations consistent with this Title, generally
applicable procedural rules of the Tribe, and the Constitution.
h. Require by regulation the filing of any forms or reports necessary for implementation
of this Title.
i. Examine under oath either orally or in writing any agent, officer, or employee of any
utility subject to regulation under this Title, or any other witness with respect to any
enforcement action authorized by this Title.
j. Delegate to an individual Commissioner, or to the Director or other members of the
Commission staff or Tribal staff, such of its functions as may be necessary to administer
this Title efficiently; provided that the Commission may not delegate its powers to
promulgate rules and regulations, to hear or rule upon any complaints filed with the
Commission pursuant to this Title, or to take any action reserved to the Commission
by this Title.
k. Adopt rules and regulations in furtherance of the purposes of this Title.
l. Exercise all other authority delegated to it by law, or as may be reasonably necessary
in the implementation of any provision in this Title.
3. Except as provided in this Title, the Commission may exercise one or more of the above
powers, in its discretion, and may, by appropriate rule or regulation issued after notice and
hearing, assume regulatory authority over one or more classes of utilities within the
Reservation. Failure to exercise one or more powers delegated under this Title shall not be
deemed a waiver of or a limitation on the Commission’s ability to exercise such powers in
the future.
4. The Commission is hereby vested with the powers, rights, functions, and jurisdiction to
regulate, in accordance with the provisions of this Code, every utility as defined herein. The
exercise of such powers, rights, functions, and jurisdiction is prescribed as a duty of the
Commission.
5. The Commission shall supervise all rates, tariffs, and charges of all utilities located or
operating within the Reservation. It shall have the power, after notice and hearing, to
11
originate, establish, modify, adjust, promulgate, and enforce all rates, tariffs, and charges of
all utilities. Whenever the Commission, after hearing, shall find any existing rates, tariffs,
charges, or schedules unjust, unreasonable, insufficient, unjustly discriminatory, or
otherwise in violation of any of the provisions of this Title, the Commission by order shall
fix reasonable rates, joint rates, wheeling rates, charges, or schedules to he followed in the
future in lieu of those found to be unjust, unreasonable, insufficient, unjustly discriminatory,
or otherwise in violation of any provision of law.
a. Whenever the Commission shall find, after hearing, that the rules, regulations,
practices, equipment, appliances, facilities, or service of any utility or the methods of
manufacture, distribution, transmission, storage, or supply employed by it are unjust,
unreasonable, unsafe, improper, inadequate, or insufficient, the Commission shall
determine the just, reasonable, safe, proper, adequate, or sufficient rules, regulations,
practices, equipment, appliances, facilities, service, or methods to be observed,
furnished, constructed, enforced, or employed, and, after hearing, shall fix the same by
its order, rule, or regulation. The Commission shall, pursuant to regulations
promulgated under this Title, and after a public hearing, prescribe rules and regulations
for the performance of any service, or the furnishing of any commodity, of a character
furnished or supplied by any utility. On demand and tender of rates, such utility shall
furnish such commodity and render such service within the time and upon the
conditions provided in such rules and regulations.
6. After environmental review, the Commission has the power to approve the siting of facility
locations for generation, pipelines, transmission/distribution power lines, cell towers,
fiber/broadband lines, storage and other facilities related to the provision of Utility Services.
7. The Commission has the authority to negotiate and make recommendations for RBC consent
to Utility leases and easements.
§3.02.
Accounting Systems
1. The Commission shall establish a system of accounts to be kept by utilities subject to its
jurisdiction. A utility which maintains its accounts in accordance with the system of accounts
prescribed by a federal agency or authority shall be deemed to be in compliance with the
system of accounts prescribed by the Commission. Where optional accounting is prescribed
by a federal agency or authority, the Commission may prescribe which option is to be
followed.
2. Every utility engaged directly or indirectly in any business other than that of a utility shall,
if required by the Commission, keep and render separately to the Commission in like manner
and form the accounts of all the other business, in which case all the provisions of this Title
shall apply to the books, accounts, papers, and records of the other business.
3. Every utility is required to keep and render its books, accounts, papers, and records
accurately and faithfully in the manner and form prescribed by the Commission and to
12
comply with all directions of the Commission relating to these books, accounts, papers, and
records.
§3.03.
Annual Reports by Utilities
1. The Commission may require any utility to file annual reports in such form and content,
having regard for the provisions of this Title, as the Commission may require, and special
reports concerning any matter about which the Commission is authorized to inquire or to
keep itself informed. The Commission may require that reports be verified by an officer of
the filing utility.
2. The Commission may require that the financial statements in the annual report of a utility be
examined by an independent certified public accountant and the accountant's opinion thereof
included in the annual report filed with the Commission. The Commission may require the
examination and audit of all utility accounts, and all items shall be allocated to the accounts
in the manner prescribed by the Commission.
§3.04.
Depreciation Rates and Practices
The Commission shall fix proper and adequate rates and methods of depreciation, amortization, or
depletion in respect of utility property, and every utility shall conform its depreciation,
amortization, or depletion accounts to the rates and methods fixed by the Commission.
§3.05.
Right of Entrance; Inspection
The Commissioners and duly authorized officers and employees of the Commission, during
regular business hours, may enter upon any premises of a utility for the purpose of making
examinations and tests and to inspect the accounts, books, papers, and documents, of any utility
for the purpose of exercising any power or duty provided for in this Title, and may set up and use
on the premises any apparatus and appliance necessary therefor. Such utility shall have the right
to be represented at the making of the examinations, tests, and inspections. The utility and its
officers and employees, shall facilitate the examinations, tests, and inspections by giving every
reasonable aid to the Commissioners and any person or persons designated by the Commission for
such duties.
§3.06.
Production of Records
The Commission may require, by order served on any utility in the manner provided herein for the
service of orders, the production, at a reasonable time and place as the Commission may designate,
of any books, accounts, papers, or records of the utility relating to its business or affairs within the
Reservation, pertinent to any lawful inquiry and kept by such utility in any office or place within
or without the Reservation, or, at its option, verified or photostatic copies in lieu thereof, so that
an examination thereof may be made by the Commission or under the direction of the Commission.
13
§3.07.
Rules of the Commission
1. The Commission shall promulgate internal operational procedures of the Commission and
its staff to carry out the orderly performance of its duties.
2. The Commission shall promulgate such written rules and regulations as are necessary to
carry its duties and powers to implement the provisions of this Code, including but not
limited to rules and regulations relating to:
a. interpretation and application of this Title as may be necessary to carry out its duties and
exercise its powers;
b. supervision and regulation of the rates, wheeling rates, charges, tariffs, rules,
regulations, practices, equipment, appliances, facilities, service, depreciation rates and
practices, accounting systems, annual reports, and all other aspects of all utilities;
c. any reports or other information required by, or necessary to implement, this Title; and
d. the conduct of inspections, investigations, complaints, hearings, enforcement actions
and other powers of the Commission authorized by this Title, consistent with due
process; provided that the Commission’s rules shall provide for hearings for all
interested persons upon reasonable notice, and shall ensure their right to present oral or
written testimony.
3. No rule or regulation of the Commission shall be of any force or effect until and unless copies
of the rule or regulation have been filed for record in the office of the Tribal Secretary and
in the office of the Clerk of the Tribal Court. The copy shall bear the signature of at least
three Commission members, certifying that the rule or regulation was duly adopted by the
Commission pursuant to this Title.
4. The Tribal Court and any other court of competent jurisdiction shall take judicial notice of
all rules and regulations of the Commission promulgated pursuant to this Title.
§3.08.
Commission Employees and Expenses
1. The Commission may employ such persons or entities and incur such expenses as may be
necessary for the proper discharge of its duties subject to the limitations and restrictions set
out in this Section.
2. Upon the approval of the Council by resolution, the Commission may utilize regular Tribal
staff to exercise the duties and responsibilities set out in this Title.
3. The Commission may delegate to the Tribal staff by rule such of its functions as may be
necessary to administer this Title efficiently, consistent with the limitations of this Title.
4. The total amount disbursed by the Treasurer in any one fiscal year for the payment of salaries,
expenses, and incidentals of the Commission shall not exceed the amount in the Commission
budget for that fiscal year. The Commission shall submit to the Tribal Council a line item
proposed budget for the next fiscal year not later than May 1st of each year. After its approval
by the Tribal Council, such budget shall be the official budget of the Commission.
5. The Commission may require that a utility include a charge in its rates for the purpose of
recovery of the cost of regulation of the utility by the Commission.
14
§3.09.
Bonds
1. The Commission may require its members and each of its officials and employees who may
handle tribal monies or revenues, or who are responsible therefor, to give a bond for the
honest and faithful performance of their duties, in such amounts as may be fixed by the
Commission.
2. The premiums on any bonds required of the Commission members, officials, and its
employees shall be paid from the Tribal Utility Commission Account as authorized in the
Commission budget.
§3.10.
Records of the Commission
1. The Commission shall keep and maintain accurate, complete, and detailed records which
reflect all taxes, penalties, and interest levied, due, and paid, and each and every official
transaction, communication, or action of the Commission, including minutes of all meetings
of the Commission.
2. Such records shall be maintained at the offices of the Commission and shall not be removed
from that location absent the consent of the Commission by formal resolution.
3. Such records shall be subject to audit any time upon the direction of the Tribal Council, and
shall be audited not less than once each year by an independent auditor selected by the
Council.
4. The records of the Commission are public records of the Tribe. Such records shall be
available for public inspection and copying during the Commission's regular business hours.
Copies of such records may be obtained by payment of such copying cost as may be
established by rule of the Commission.
5. The Commission shall establish regulations needed to protect confidential, trade secret, and
proprietary records.
CHAPTER 4. DUTIES OF PUBLIC UTILITIES
§4.01.
Duty to Serve All within all the Service Territory
Each utility shall furnish safe, adequate, efficient, and reasonable service without unjust
discrimination or preference to all within the service territory. Every utility shall furnish, provide,
and maintain such service, instrumentalities, equipment, and facilities as will promote the safety,
health, and convenience of its customers, employees, and the public. For purposes of this Title, the
time of service shall be deemed adequate if it is established within 90 days after a person within
the service area requests service. Upon application by a utility and upon a showing by the utility
of good cause, the Commission may extend this period by no more than an additional 90 days.
15
§4.02.
Duty to Establish Reasonable and Non-Discriminatory Charges for Services
Every rate made, demanded, or received by any public utility shall be just and reasonable. Rates
and services shall not be unreasonably preferential, unreasonably prejudicial, or discriminatory.
§4.03.
Duty to Follow Prescribed System of Accounts
When the Commission has prescribed the forms for accounts and records to be kept by any utility
for any of its business on the Reservation, it thereafter shall be unlawful for such utility to keep
any accounts or records of such business other than those prescribed by the Commission and those
prescribed by or under authority of the United States.
§4.04.
Duty to Obey and Comply with Orders of the Commission
Every utility shall obey and comply with each requirement of every order, decision, direction, rule,
or regulation made or prescribed by the Commission in any manner in any way relating to or
affecting its business as a utility on the Reservation, and shall do everything necessary or proper
in order to secure compliance with and observation of every such order, decision, direction, rule,
or regulation by all of its officers, agents, and employees.
§4.05.
Duty to Maintain Service During Cold, & Extreme Heat Weather Conditions
1. During the cold weather period, a utility may not involuntary disconnect and must reconnect
any utility service of a customer whose household income is less than 185% of the federal
poverty level; who are bedridden, suffer from a significant disability, or who are inflicted
with a serious, life-threatening disease; or for whom the disconnection of utility service
would have other serious, life-threatening effects.
2. During an excessive heat watch, heat advisory, or excessive heat warning issued by the
National Weather Service is in effect, a utility may not involuntary disconnect residential
utility services in affected counties on the Reservation.
3. The Commission has the authority to adopt rules to carry out the provisions of this Section.
§4.06.
Utility Customer Suits
Except as provided by Tribal law or any Federal law, any resident of the Reservation may
commence an action on their own behalf against a utility operating on the Reservation to recover
for such loss, damage, or injury. The Tribal Court shall have jurisdiction, without regard to the
amount in controversy or the citizenship of the parties, to apply the appropriate penalties.
16
DIVISION B
CHAPTER 1. ELECTRIC UTILITIES
§ 1.01
Statement of Policy.
1. The RBC finds that the energy sector is a growing area of the economy in the State of
Minnesota and further finds that the White Earth Tribe needs to take a leadership role in the
Reservation's investment in the clean energy economy in Minnesota. To promote this
interest, the RBC charges the Commission with the authority to promote clean energy
generation, renewable energy standards, energy efficiency, a carbon free energy supply to
ensure health, economic, and environmental benefits for tribal members.
2. The RBC finds that the protection of the public health, safety, and welfare of the Tribe and
its members require policies to promote electric utility and energy company programs that
provide for increased conservation of electric energy, increased efficiency in the use of
facilities and resources by electric utilities, and equitable retail rates for electric consumers,
and improve the distribution of electric energy, the reliability of electric service, the use of
renewable energy, carbon free and distributed energy resources.
§1.02.
Definitions
In this chapter, except where otherwise specifically provided or the context otherwise requires, the
following terms and expressions shall have the following meanings:
1. "Assigned service area" means the geographical area in which the boundaries are established
as provided in this Chapter within which a specified electric utility shall provide electric
service to customers on an exclusive basis.
2. "Customer" means a person contracting for or purchasing electric service at retail from an
electric utility.
3. "Distributed energy resources" means small, modular, energy generation and storage
technologies that connected to the local electric power grid or isolated from the grid in standalone applications.
4. "Electric generation" means the production of electricity.
5. "Electric service" means electric service furnished to a customer at retail for ultimate
consumption, but does not include wholesale electric energy furnished by an electric utility
to another electric utility for resale.
6. "Electric line" means lines for conducting electric energy used for distributing electric energy
directly to retail customers.
7. "Electric utility" means any Company or the Tribe that provides electric Utility Services
within the Reservation.
8. "Energy Company" means any Company that constructs, operates, maintains and controls
equipment or facilities that generate, transmit and/or distribute electricity within the
Reservation, regardless of whether for sale or use on the Reservation.
17
9. "Energy storage" means the capture of energy produced at one time for use at a later time.
10. "Independent Power Producer" means a non-utility generator which owns and/or operates
facilities to generate electricity for sale to a Utility or the Tribe, or for sale off the
Reservation.
§1.03.
Information on Reservation Easements
Within 180 days of the effective date of this Title, each Energy Company and Electric Utility
operating on the Reservation shall provide to the Commission a list of all leases and easements
owns on the Reservation and a copy of each such lease and/or easement.
§1.04.
Assigned Service Areas
1. Public Policy. In order to encourage the rational development of coordinated Reservationwide retail electric service within the limited geographic scope of the Reservation, to
eliminate or avoid unnecessary duplication of electric utility facilities, to limit the cost and
complexity of utility regulation by the tribe, and to promote economical, efficient, and
adequate electric service to residents of the Reservation, the Tribe may designate all land
within the Reservation boundary as a single service area or may divide such lands into the
least number of service areas possible taking into account cost and any practical limitations
that may prevent the creation of a single service area. Within 180 days of the effective date
of this Title, the Commission shall establish regulations implementing the provisions in this
Chapter.
2. Within 60 days following the effective date of this Title, or when requested in writing by an
electric utility and for good cause shown, whichever first occurs, and at such further time as
the Commission may fix by order, each electric utility providing service on the Reservation
shall file with the Commission a map or maps showing all its electric lines within the
Reservation as they existed at the time of the request, and also showing all residences,
businesses, and all other facilities on the Reservation receiving its service, together with an
address list of residences, businesses, and other facilities within the reservation served by the
utility. Upon such filing, it shall be conclusively presumed that any facility not included on
such maps was not being served by the filing utility on the effective date of this Title.
3. On or before twelve months following the effective date of this Title, the Commission shall,
after notice and hearing, establish assigned service area or areas within the Reservation and
shall prepare or cause to be prepared a map or maps to show accurately and clearly the
boundaries of the assigned service area of each electric utility providing electric service or
maintaining an electric line within the White Earth Reservation.
4. To the extent that the Commission divides areas within the Reservation into more than one
service area and the boundaries of such service areas are not clearly defined on the maps
required by Subsection (a), the boundaries of each assigned service area shall be a line
equidistant between the electric lines of adjacent electric utilities as they exist on the effective
date of this Title, provided that these boundaries may be modified by the Commission to take
18
account of natural and other physical barriers including, but not limited to, highways,
waterways, railways, major bluffs, and ravines, and shall be modified to take account of preexisting contracts; and provided further that at any time after the effective date of this Title,
the Commission may on its own or at the request of an electric utility make changes in the
boundaries of the assigned service areas, but only after appropriate notice and hearing as
provided for in this Title.
5. In those areas where, on the effective date of this Title, the existing electric lines of two or
more electric utilities are so intertwined that the provisions of this Section cannot reasonably
be applied, the Commission shall determine the boundaries of the assigned service areas for
the electric utilities involved in such manner as will best promote the interests of the Tribe.
§1.05.
Enforcement of Chapter
1. If any electric utility violates or threatens to violate any of the provisions of this Chapter or
interferes with or threatens to interfere with the system of any other electric utility, the
Commission, after complaint, notice, and hearing, shall make its order restraining and
enjoining such electric utility from constructing or extending its interfering lines, plant, or
system. In addition to the restraint imposed, the Commission shall prescribe such terms and
conditions as it shall deem reasonable and proper.
2. Nothing herein contained shall be construed to prohibit or limit any person whose property
or business has been injured by reason of a violation of this Chapter by any electric utility,
from bringing an action for damages in Tribal Court to recover damages.
§1.06.
Terms by Which Facilities of One Utility May Cross Those of Another Utility
Whenever public convenience and necessity requires that an electric distribution or transmission
line of any electric utility cross a line of another electric utility, and the electric utilities have failed
to agree upon the terms and conditions or compensation for the same, the Commission, after notice
and hearing, may prescribe reasonable terms, conditions, and compensation on which the crossing
shall be permitted.
CHAPTER 2. ELECTRIC UTILITY RATES AND TARIFFS
§2.01
Electric Utility Ratemaking and Service Standards
1. Consideration and determination. The Commission shall consider each standard established
by subsection 3 and make a determination concerning whether or not it is appropriate to
implement such standard to carry out the purposes of this Title. For purposes of such
consideration and determination in accordance with subsections 2, and for purposes of any
review of such consideration and determination in any court in accordance with this Title,
the purposes of this chapter supplement otherwise applicable Tribal law.
19
2. Procedural requirements for consideration and determination. The consideration referred to
in subsection 1 shall be made after public notice and hearing. The determination referred to
in subsection 1 shall be:
a. in writing,
b. based upon findings included in such determination and upon the evidence
presented at the hearing, and;
c. available to the public.
3. The following electric utility service standards are hereby established:
a. Cost of service. Rates charged by any electric utility for providing electric
service to each class of electric consumers shall be designed, to the maximum extent practicable,
to reflect the costs of providing electric service to such class, as determined under this Chapter.
b. Time-of-day rates. The rates charged by any electric utility for providing electric
service to each class of electric consumers shall be on a time-of-day basis which reflects the costs
of providing electric service to such class of electric consumers at different times of the day unless
such rates are not cost-effective with respect to such class, as determined under this Chapter.
c. Seasonal rates. The rates charged by an electric utility for providing electric
service to each class of electric consumers shall be on a seasonal basis which reflects the costs of
providing service to such class of consumers at different seasons of the year to the extent that such
costs vary seasonally for such utility.
d. Interruptible rates. Each electric utility shall offer each industrial and
commercial electric consumer an interruptible rate which reflects the cost of providing
interruptible service to the class of which such consumer is a member.
e. Load management techniques. Each electric utility shall offer to its electric
consumers such load management techniques as the Commission has determined will—
(i) be practicable and cost-effective;
(ii) be reliable, and
(iii) provide useful energy or capacity management advantages to
the electric utility.
f. Integrated resource planning. Each electric utility shall employ integrated
resource planning. All plans or filings before the Commission to meet the requirements of this
paragraph must be updated on a regular basis, must provide the opportunity for public participation
and comment, and contain a requirement that the plan be implemented. Each electric utility shall
20
(i) integrate energy efficiency resources into utility, State, and
regional plans; and
(ii) adopt policies establishing cost-effective energy efficiency as a
priority resource.
g. Investments in conservation and demand management. The rates allowed to be
charged by the electric utility shall be such that the utility’s investment in and expenditures for
energy conservation, energy efficiency resources, and other demand side management measures
are at least as profitable, giving appropriate consideration to income lost from reduced sales due
to investments in and expenditures for conservation and efficiency, as its investments in and
expenditures for the construction of new generation, transmission, and distribution equipment.
Such energy conservation, energy efficiency resources and other demand side management
measures shall be appropriately monitored and evaluated.
h. Energy efficiency investments in power generation and supply. The rates
charged by any electric utility shall be such that the utility is encouraged to make investments in,
and expenditures for, all cost-effective improvements in the energy efficiency of power generation,
transmission and distribution. In considering regulatory changes to achieve the objectives of this
paragraph, the Commission shall consider the disincentives caused by existing ratemaking
policies, and practices, and consider incentives that would encourage better maintenance, and
investment in more efficient power generation, transmission and distribution equipment. The rates
allowed to be charged by any electric utility shall—
(i) align utility incentives with the delivery of cost-effective energy
efficiency; and
(ii) promote energy efficiency investments.
i. Net metering. Each electric utility shall make available upon request net metering
service to any electric consumer that the electric utility serves. For purposes of this paragraph, the
term “net metering service” means service to an electric consumer under which electric energy
generated by that electric consumer from an eligible distributed energy resource and delivered to
the local distribution facilities may be used to offset electric energy provided by the electric utility
to the electric consumer during the applicable billing period. Net metering shall also include
virtual net metering and aggregate net metering.
j. Fuel sources. Each electric utility shall develop a plan to minimize dependence
on carbon-emitting fuel sources and to ensure that the electric energy it sells to consumers is
generated using a diverse range of fuels and technologies, including renewable technologies. The
Commission shall establish a renewable energy or clean energy requirement that achieves 100%
carbon free electricity no later than 2050.
21
k. Community Distributed Energy Program. Each electric utility shall offer a
community distributed energy program. For the purposes of this paragraph, the term ‘community
distributed energy program’ means a service provided to any electric consumer that the electric
utility serves through which the value of electric energy generated by a community distributed
energy facility may be used to offset charges billed to the electric consumer by the electric utility.
A ‘community distributed energy facility’ is:
(i) a solar photovoltaic, wind, landfill gas, biomass, fuel cell, gas or
diesel generation system that produces electricity and allocates electricity to multiple electric
consumers of an electric utility;
(ii) connected to a local distribution of the electric utility;
(ii) located either on or off the property of the electric consumers;
and
(iv) may be owned by an electric utility, an electric consumer, the
Tribe or a third party.
l. Interconnection. Each electric utility shall make available, upon request,
interconnection service to any electric consumer that the electric utility serves or community
distributed energy facility. For purposes of this paragraph, the term “interconnection service”
means service to an electric consumer or a community distributed energy facility under which
distributed energy resources shall be connected to the local distribution facilities. Interconnection
services shall be offered based upon the standards developed by the Institute of Electrical and
Electronics Engineers: IEEE Standard 1547 for Interconnecting Distributed Resources with
Electric Power Systems, as they may be amended from time to time. In addition, agreements and
procedures shall be established whereby the services are offered shall promote current best
practices of interconnection for distributed generation, including but not limited to practices
stipulated in model codes adopted by associations of state regulatory agencies. All such
agreements and procedures shall be just and reasonable, and not unduly discriminatory or
preferential.
m. Consideration of smart grid investments. The Commission shall consider
authorizing each electric utility of the State to recover from ratepayers any capital, operating
expenditure, or other costs of the electric utility relating to the deployment of a qualified smart
grid system, including a reasonable rate of return on the capital expenditures of the electric utility
for the deployment of the qualified smart grid system.
§2.02.
Application for Changes in Tariff Rates; Public Notice to Customers
No change shall be made by any electric utility in any tariffs, rates, joint rates, wheeling rates,
charges, fares, tolls, schedules, classifications, or service unless approved by the Commission after
22
the electric utility has filed an application with the Commission for such change. Upon application
to the Commission, the electric utility must provide public notice of the filing to its customers.
Such notice shall state plainly the changes proposed.
§2.03.
Hearing by Commission on Proposed Change or Rates
1. Whenever an application stating an individual or joint rate, classification, contract, practice,
rule, or regulation, increasing or decreasing or resulting in an increase or decrease in any
rate, shall be filed with the Commission, the Commission shall order a hearing, upon due
notice, concerning the propriety of such rate, classification, contract, practice, rule or
regulation. A utility must, at its own expense, notify customers of the date and place of a rate
change hearing.
2. On such hearing, the Commission shall establish the rates, classifications, contracts,
practices, rules, or regulations proposed, in whole or in part, or others in lieu thereof, which
it shall find to be just and reasonable.
3. At any such hearing, the burden to show that the increased rate or proposed change of rate,
classification, regulation, rule, or practice is just and reasonable shall be upon the electric
utility making application therefor.
§2.04.
Factors in Establishing Rate Adjustments
In reaching its decision on any request for change in tariffs, rates, joint rates, wheeling rates,
charges, fares, tolls, schedules, or classifications of an electric utility, the Commission shall apply
the standards established in in this Section and corresponding Section. The Commission may also
adopt, in whole or in part, on an interim basis, those rates approved or allowed by the Minnesota
Public Utilities Commission or adjacent rural electric cooperative for the same type or
classification of service provided to customers outside the boundaries of the Reservation. The
Commission may adopt such state or rural electric cooperative rates on an interim basis pending
full investigation and collection and analysis of data relevant to such rates. Nothing in this Section
shall be construed to be a consent to jurisdiction of the State or its agencies and political
subdivisions, or to the jurisdiction of a rural electric cooperative, with respect to the regulation of
utilities within the boundaries of the Reservation, such jurisdiction residing exclusively with the
Tribe and the Tribal Utility Commission pursuant to the provisions of this Title. The interim
adoption by the Commission under this Section of any tariff, rate, joint rate, wheeling rate, fare,
toll, schedule, or classification established by the Minnesota Public Utilities Commission or a rural
electric cooperative shall not affect or in any way limit implementation and enforcement by the
Commission of any other provision of this Title relating to tribal regulation of electric utilities
within the Reservation.
§2.05.
Non-Interference with Federal Programs
In establishing rates under this Chapter for any rural electric cooperative or similar entity operating
or providing service within the Reservation; the Commission shall take into consideration the
23
obligations of such electric utilities to the federal government, including the Rural Electrification
Administration, and the requirements under federal law applicable to such obligations. Any rates
established by the Commission with respect to cooperative electric utilities shall be established so
as not to interfere with any federal loan requirements or other federal regulations relating to such
electric utilities.
§2.06.
Just and Reasonable Rates
Every rate made, demanded, or received by any utility, or by any two or more utilities jointly, shall
be just and reasonable. Rates shall not be unreasonably preferential, unreasonably prejudicial or
discriminatory, but shall be sufficient, equitable, and consistent in application to a class of
consumers. To the maximum reasonable extent, the Commission shall set rates to encourage tribal
self-sufficiency with regard to electricity supply by means of energy conservation and onReservation renewable energy generation, and to limit the adverse environmental impacts of utility
operations. Any disagreement as to reasonableness should be resolved in favor of the consumer
and Tribal policy.
24
DIVISION C
TELECOMMUNICATIONS COMPANIES
[RESERVED]
DIVISION D
PIPELINE UTILITIES
[RESERVED]
DIVISION E
GAS UTILITIES
[RESERVED]
DIVISION F
WATER COMPANIES
[RESERVED]
DIVISION G
HEATING UTILITIES
[RESERVED]
DIVISION H
OTHER PUBLIC UTILITIES
[RESERVED]
25
DIVISION I
HEARINGS, ADMINSTRATIVE REMEDIES AND ENFORCEMENT
CHAPTER 1. HEARING PROCEDURES
§1.01.
Rules and Regulations
The Commission has the power to hold investigations, inquiries and hearings concerning any
matters covered by the provisions of this Title; and in furtherance of this authority, shall adopt
rules and regulations related to hearing, administrative remedies and enforcement.
§1.02.
Depositions
The Commission or any party to the proceedings may, in any investigation or hearing before the
Commission, cause the deposition of witnesses residing within or without the Reservation to be
taken in the manner prescribed by law for taking depositions in civil actions in the Tribal Court.
§1.03.
Subpoena; Witnesses
In furtherance receive evidence The Commission or a Commissioner may issue subpoenas and all
necessary process in proceedings pending before the Commission; and each process shall extend
to all parts of the Reservation and may be served by any person authorized to serve process under
this Code.
§1.04.
Oaths; Contempt; Examiner's Powers
The Commission or a Commissioners may administer oaths and examine witnesses in proceedings
pending before the Commission. In case of failure on the part of any person to comply with any
subpoena, or in the case of the refusal of any witness to testify concerning any matter on which a
witness may be interrogated lawfully, the Tribal Court, on application of the Commission, may
compel obedience by proceedings for contempt as in the case of disobedience to the requirements
of a subpoena issued from the Tribal Court or a refusal to testify therein.
§1.05.
Testimony and Production of Records; Perjury
No person shall be excused from testifying or from producing any book, document, paper, or
account in any investigation, or inquiry by, or hearing before, the Commission or any
Commissioner, or person designated by it to conduct hearings, when ordered to do so, upon the
ground that the testimony or evidence, book, document, paper, or account required may tend to
incriminate the person or subject the person to penalty or forfeiture; but no person shall be
prosecuted, punished, or subjected to any forfeiture or penalty for or on account of any act,
transaction, matter, or thing concerning which the person shall have been compelled under oath to
testify to, or produce documentary evidence of; provided, that no person so testifying shall be
exempt from prosecution or punishment for any perjury committed in testimony.
26
§1.06.
Rehearings Before Commission
1. Within 20 days after service by the Commission of any decision constituting an order or
decision, any party to the proceeding and any other person aggrieved by the decision and
directly affected thereby, may apply to the Commission for a rehearing in respect to any
matters determined in the decision. The Commission may grant a rehearing on any or all
matters raised in the request for rehearing, if in its discretion sufficient reason exists.
2. Applications for rehearing shall be governed by general rules which the Commission may
establish. If, after rehearing, it shall appear that the original order or decision is in any
respect unlawful or unreasonable, the Commission may reverse, change, modify or suspend
the original action accordingly. No order of the Commission shall become effective until
the time for filing an application for rehearing expires or while a rehearing is pending and
until ten days after any such application for a rehearing is either denied, or the Commission
has announced its final determination on rehearing, whichever first occurs.
3. The grant or denial of a rehearing shall be discretionary with the Commission. A request for
rehearing shall not be deemed a condition precedent to judicial review of a final
administrative order or decision.
§1.07.
Conclusive Effect of Orders and Decisions of Commission
In all collateral actions or proceedings before any court or administrative agency of competent
jurisdiction, findings of fact contained within the orders and decisions of the Commission which
have become final shall be conclusive.
§1.08.
Effective Date of Orders and Decisions
Every decision made by the Commission constituting an order or decision shall be effective and
enforced 20 days after it has been filed and has been served by personal delivery or by mailing a
copy thereof to all parties to the proceeding in which the decision was made or to their attorneys,
unless the Commission shall specify a different date upon which the order or decision shall be
effective.
§1.09.
Decisions of Commission; Rescission or Amendment
The Commission may at any time, on its own motion or upon motion of an interested party, and
upon notice to the utility and after opportunity to be heard, rescind, alter or amend any order or
decision made by the Commission and may reopen any case following the issuance of an order or
decision therein, or the taking of further evidence or for any other purpose. Any order rescinding,
altering, amending or reopening a prior order or decision shall have the same effect as an original
order or decision.
27
§1.10.
Appeal From Decision of Commission
Any party to any proceeding heard by the Commission who is aggrieved by the decision or by the
entry of any final order or decision of the Commission therein may seek judicial review therefrom
in the Tribal Court. The rules of civil procedure and the civil provisions of this Code shall be fully
applicable to any such judicial review.
§1.11.
Judicial Review
1. Any party to any proceeding heard by the Commission who is aggrieved by the decision or
by the entry of any final order or decision of the Commission is entitled to judicial review
thereof in Tribal Court. A preliminary, procedural, or intermediate Commission action is
not subject to review.
2. An action in the Tribal Court seeking relief other than damages, attorney's fees or costs
against the Commission or an officer or employee thereof shall not be dismissed nor relief
be denied on the ground that it is against the Tribe or that the Tribe is an indispensable party
and, for the limited purposes of this Title, the Tribe hereby waives the sovereign immunity
of the Executive Director, the Commission, and its members for the limited purpose of
Tribal Court review of decisions of the Executive Director and the Commission. Such
waiver of immunity is further limited to prospective, equitable relief, including declaratory
and injunctive relief, and does not include money damages of any kind.
3. Nothing herein either affects other limitations on judicial review or the power or duty of the
Tribal Court to dismiss any action or deny relief on any other appropriate legal or equitable
ground; or confers authority to grant relief if any other tribal law that giants consent to suit
expressly or impliedly forbids the relief which is sought.
4. When the Commission finds that justice so requires, it may postpone the effective date of
an action taken by it, pending judicial review. On such conditions as may be required, and
to the extent necessary, to prevent irreparable injury, the Tribal Court may issue all
necessary and appropriate process to postpone the effective date of a Commission action or
to preserve the status quo or rights pending conclusion of the review proceedings.
5. To the extent necessary to a decision and when presented, the Tribal Court shall decide all
relevant questions of law, interpret constitutional provisions and all other tribal law, and
determine the meaning or applicability of the terms of the Commission's action. The Tribal
Court may:
a. compel Commission action unlawfully withheld or unreasonably delayed;
b. hold unlawful and set aside Commission action, findings, and conclusions found to be:
i. arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law;
ii. contrary to any right, power, privilege, or immunity accorded by the Tribal
Constitution or the Indian Civil Rights Act, 25 U.S.C. § 1301, et seq., as amended;
iii. in excess of jurisdiction, authority, or limitations provided by law;
iv. without observance of procedure required by law;
28
v. in an adjudicatory proceeding only, unsupported by substantial evidence.
6. In making the foregoing determinations, the Tribal Court shall review the whole record
before the Commission or those parts of it cited by a party.
§1.12.
Stay on Judicial Review; Bond
1. In case the order or decision of the Commission is stayed or suspended by order of the Tribal
Court, the order of the Tribal Court shall not become effective until a suspending bond first
shall have been executed and filed with and approved by the Tribal Court, payable to the
Tribal Utility Commission, and sufficient in amount and security to insure the prompt
payment by the party appealing of all damages caused by the delay in the enforcement of
the order or decision of the Commission and of all monies which any person may be
compelled to pay, pending appeal or review, for transportation, transmission, product,
commodity, or service in excess of the charges fixed by the order or decision of the
Commission, in case such order or decision is sustained.
2. The Tribal Court, in case it stays or suspends the order or decision of the Commission in
any matter affecting rates, also by order shall direct the utility affected to pay into Court,
from time to time, there to be impounded until the final decision of the case, under such
conditions as the Tribal Court may prescribe, all sums of money which may collect from
any person in excess of the sum which such person would have been compelled to pay if
the order or decision of the Commission had not been stayed or suspended. Upon a final
determination of the Tribal Court, the Court shall make an appropriate order disposing of
the impounded funds in accordance with such determination. In the event the utility shall
fail to comply with the conditions of the stay bond, the Commission may sue thereon for
the use and benefit of the patrons or others who have suffered damage by reason of the stay.
§1.13.
Appeal to Tribal Court of Appeals
Any party to an appeal to the Tribal Court who is aggrieved by the judgment in the Tribal Court
upon judicial review of a final order or decision of the Commission, may prosecute an appeal to
the Tribal Court of Appeals under the provisions of this Code.
CHAPTER 2. CIVIL ENFORCEMENT
§2.01.
Purpose
The civil fines imposed under this Chapter are intended to be remedial and not punitive and are
designed to compensate the tribe for the damage done to the peace, security, economy and general
welfare of the Tribe and to compensate the Tribe for damages sustained by the Tribe by reason of
violations of this Title and the costs incurred by the Tribe in enforcing this Title. The civil fines
under this Chapter are also intended to coerce persons into complying with this Title and the laws
29
and regulations of the White Earth Band of Ojibwe and not to punish such persons for violation of
such laws and regulations.
§2.02.
Civil Action for Penalties
In enforcing the civil infraction provisions of this Chapter, the Tribal Utility Commission shall
proceed, in the name of the Tribe, against a person for violation of such provision by civil
complaint pursuant to the provisions of this Code. The Commission in such action shall have the
burden of showing by the preponderance of the evidence that such person violated the applicable
provision of this Title.
§2.03.
Violation of This Title or Commission Order or Rule
Any person who violates or fails to comply with any provision of this Title, or who fails, omits, or
neglects to obey, observe, or comply with any order, decision, decree, rule, direction, demand, or
requirement of the Commission, or any part or provision thereof, shall be liable for a civil fine not
to exceed $1,000 for each violation thereof. Each day during which any such violation or failure
to comply continues shall constitute a separate violation of this Title. The amount of the civil fine,
when finally determined or agreed upon in compromise, if not paid, may be recovered in a civil
action in the Tribal Court.
§2.04.
Cumulative Fines
All civil fines accruing under this Chapter shall be cumulative and a suit for the recovery of one
fine shall not bar or affect the recovery of any other fine, or judgment, penalty, forfeiture or
damages; nor bar the power to punish for contempt; nor bar any criminal prosecution by the Tribal
Court against any utility or any officer, director, agent, or employee thereof, or any other person.
30
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.