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Prepared by the North Dakota Legislative Councilstaff for the Electric Utilities Committee

October 1997

TERRITORIAL INTEGRITY ACT· HISTORY AND OPERATION

This memorandum discusses the history andoperation of North Dakota's Territorial Integrity Act.This law was enacted by the Legislative Assembly in1965 and is codified as North Dakota Century Code(NDCC) Sections 49·03·01 through 49·03·01.5.These sections provide:

49-03-01. Certificate of public conven­ience and necessity • Secured by electricpublic utility. No electric public utility hence·forth shall begin construction or operation of apublic utility plant or system, or of an extensionof a plant or system. except as provided below,without first obtaining from the commission acertificate that public convenience and neces·sity require or will require such constructionand operation. This section does not require anelectric public utility to secure a certificate foran extension within any municipality withinwhich it has lawfully commenced operations. Ifany electric public utility in constructing orextending its line. plant, or system, unrea·sonably interferes with or is about to interfereunreasonably with the service or system of anyother electric pUblic utility. or any electric coop·erative corporation. the commission. oncomplaint of the electric public utility or theelectric cooperative corporation claiming to beinjuriously affected. after notice and hearing asprovided in this title. may order enforcement ofthis section with respect to the offending elec·tric public utility and prescribe just and reason·able terms and conditions.

49-03-01.1. Limitation on electric trans­mission and distribution lines. extensions andservice by electric public utilities. No electricpublic utility henceforth shall begin in theconstruction or operation of a public utilityplant or system or extension thereof withoutfirst obtaining from the commission a certificatethat public convenience and necessity require orwill require such construction and operation.nor shall such public utility henceforth extendits electric transmission or distribution linesbeyond or outside of the corporate limits of anymunicipality. nor shall it serve any customerwhere the place to be served is not locatedwithin the corporate limits of a municipality.unless and until. after application. such electricpublic utility has obtained an order from thecommission authorizing such extension andservice and a certificate that public convenience

and necessity require that permission be givento extend such lines and to serve suchcustomer.

49-03-01.3. Exclusions from limitationson electric distribution lines, extension andservice and on issuance of certificates ofpublic convenience and necessity. Sections49·03·01 through 49·03·01.5 shall not beconstrued to require any such electric publicutility to secure such order or certificate for anextension of its electric distribution lines withinthe corporate limits of any municipality withinwhich it has lawfully commenced operations;provided. however. that such extension orextensions shall not interfere with existing servoices provided by a rural electric cooperative oranother electric public utility within suchmunicipality; and provided duplication of servoices is not deemed unreasonable by thecommission.

Sections 49·03·01 through 49·03·01.5shall not be construed to require an electricpublic utility to discontinue service tocustomers thereof whose places receivingservice are located outside the corporate limitsof a municipality on July 1. 1965; provided.however. that within ninety days after July 1,1965, any electric public utility furnishingservice to customers whose places receivingservice are located outside the corporate limitsof a municipality shall file with the commissiona complete map or maps of its electric distribu·tion system showing all places in North Dakotawhich are located outside the corporate limitsof a municipality and which are receiving itsservice as of July 1. 1965. After ninety daysfrom July 1. 1965, unless a customer whoseplace being served is located outside the corpo·rate limits of a municipality is shown on saidmap or maps. it shall be conclusively presumedthat such customer was not being served onJuly 1. 1965. and cannot be served until aftercompliance with the provisions of section49·03·01.1.

49-03-01.4. Enforcement of act. If anyelectric public utility violates or threatens toviolate any of the provisions of sections49·03·01 through 49·03·01.5 or interferes withor threatens to interfere with the service orsystem of any other electric public utility orrural electric cooperative. the commission, after

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complaint, notice, and hearing as provided inchapter 28·32, shall make its order restrainingand enjoining said electric public utility fromconstructing or extending its interfering lines,plant or system. In addition to the restraintimposed, the commission shall prescribe suchterms and conditions as it shall deem reason·able and proper.

Provided, further, that nothing hereincontained shall be construed to prohibit or limitany person, who has been injured in his busi·ness or property by reason of a violation ofsections 49·03·01 through 49·03·01.5 by anyelectric public utility or electric cooperativecorporation, from bringing an action fordamages in any district court of this state torecover such damages.

49-03-01.5, Definitions, As used insections 49·03·01 through 49·03·01.5:

1. "Electric public utility" shall mean aprivately owned supplier of electricityoffering to supply or supplying elec·tricity to the general public.

2. "Person" shall include an individual, anelectric public utility, a corporation, alimited liability company, an associa·tion, or a rural electric cooperative.

3. "Rural electric cooperative" shallinclude any electric cooperative organ·ized under chapter 10·13. An electriccooperative, composed of members asprescribed by law, shall not be deemedto be an electric public utility.

It should be noted that as enacted, the TerritorialIntegrity Act included a section that provided that the"public service commission of the state of NorthDakota shall not issue its order or its certificate ofpublic convenience and necessity to any electricpublic utility to extend its electric distribution linesbeyond the corporate limits of a municipality or toserve a customer whose place to be served is locatedoutside the corporate limits of a municipality unlessthe electric cooperative corporation with lines or facili·ties nearest the place where service is required shallconsent in writing to such extension by such electricpublic utility, or unless, upon hearing before thecommission, called upon notice, shall be shown thatthe service required cannot be provided by an electriccooperative corporation. Such certificate shall not benecessary if the public service commission approvesan agreement between a public utility and a ruralelectric cooperative serving the area which includesthe station to be served in which agreement desig·nates said station to be in an area to be served by thepUblic utility." However, in Montana·Dakota UtilitiesCo. v. Johanneson, 153 N.W.2d 414 (N.D. 1967), this

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section was declared to be an unconstitutional delega·tion of legislative authority. However, the remainderof the Act was upheld.

Although the legislative history of the TerritorialIntegrity Act is extensive, the rationale for its enact·ment was summarized recently in Capital ElectricCooperative Inc. v. Public Service Commission,534 N.W.2d 587 (N.D. 1995). In this case, it wasnoted that "the Act was adopted at the request of theNorth Dakota Association of Rural Electric Coopera·tives to provide 'territorial protection' for rural electriccooperatives and to prevent public utilities from'pirating' rural areas," and the "primary purpose ofthe Act was to minimize conflicts between suppliers ofelectricity and wasteful duplication of investment incapital·intensive utility facilities."

Under the Act, a public utility may not begin theconstruction or extension of a public utility plant orsystem until a certificate of public convenience andnecessity is obtained for the construction orextension. A public utility also may not extend trans·mission or distribution lines beyond the corporatelimits of a municipality or serve any customer outsidea municipality, unless an order and a certificate ofpublic convenience and necessity is first gained. Inaddition, the Supreme Court established a require·ment in Capital Electric Cooperative Inc. v. PublicService Commission that a request by a new customerfor electric service from a public utility must be madebefore the Public Service Commission may considerwhether to issue a certificate of public convenienceand necessity to the utility.

While the Act did not require the public utilitycompanies to discontinue service to customers whowere being served outside of municipalities prior tothe effective date of the Act, they were required to filemaps within 90 days showing all such customers, or itwas conclusively presumed that the customer was notbeing served. In this event, the customer could notbe served unless authorized by the commission inaccordance with those provisions of the Act relating tothe extensions of service.

Public utilities were allowed to make extensions ofservice in municipalities where they had lawfullycommenced operations without obtaining a certificateif the extension would not interfere with servicesalready provided by a cooperative or another publicutility, or result in an unreasonable duplication ofservices.

Certain limitations were placed on the issuance oforders and certificates of public convenience andnecessity by the Public Service Commission, in thatsuch orders and certificates were not to be issued toany private utility to allow an extension of distributionlines outside a municipality or allow the service of anew customer outside the municipality, unless the

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nearest cooperative had consented to the service inwriting, or unless it was shown upon hearing that thecooperative could not supply the service. Certificateswere not necessary for the extension of facilities if a"consent" agreement was entered into between thecooperative and the public utility as to service areasand the agreement was approved by the PublicService Commission.

Thus, the Act basically allowed cooperatives toextend service in rural areas and public utilities toextend service in municipal areas without firstobtaining a certificate of public convenience andnecessity from the Public Service Commission.. thetheory being that the delineation of service areaswould allow each type of enterprise to expand withinits own sphere without conflict with each other. Prob·lems arose, however. as the public utility companiesbelieved that by being confined to municipal areasexcept as provided in the Act, they were being denieda fair share of the business arising in the rural"growth" areas. As noted above, this objection to theeffect of the Territorial Integrity Act culminated inMontana-Dakota Utilities Co. v_ Johanneson, whichsquarely attacked its constitutionality. In Johanneson.the public utility companies took the position that thelaw was an unconstitutional classification for severalreasons. They contended that cooperatives weregiven a monopoly in rural areas and were allowed tooperate without Public Service Commissionregulation, while the public utilities were regulated inevery respect by that agency. Further, they claimedthat cooperatives could infringe on the existing serviceareas of public utility companies in rural localities andthat new customers could be gained in municipalareas only if there was no interference with coopera­tive services already provided in the municipality.Finally. they asserted that cooperatives had a right tocomplain against public utilities' actions, but the utili·ties had no such right as against actions of the coop­eratives. Thus. they maintained that the TerritorialIntegrity Act was unfair, arbitrary, and unreasonable.and discriminated against the public utility companiesand the public generally.

The North Dakota Supreme Court in Johannesonupheld the constitutionality of the Act in all but onerespect. It was held that the Act did amount to aclassification in that public utilities and cooperativeswere treated dissimilarly, but that the classificationwas not objectionable, as it was based on legally justi­fiable distinctions. While public utilities were deniedthe right under the Act to complain of improperactions by cooperatives, the right remained to bringan action in the courts of the state for redress of anyinjury that might be suffered. Thus. the courtreasoned, the public utilities did have an adequateremedy and were not prejudiced.

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However. the court found otherwise with regard toSection 3 of the Act which conditioned the issuance ofcertificates of public convenience and necessity on thewritten consent of the nearest cooperative, or upon afinding that a cooperative could not provide the servoice. Here, the court found that it was ". .. the coop·erative, and not the public service commission ...that determines whether a certificate of publicconvenience and necessity shall be granted to a publicutility in the area outside the limits of themunicipality" and that "[n]o guidelines are set out inthe law to be followed by the cooperative in makingsuch determination, and no safeguards are providedagainst arbitrary action ...." Thus. the court heldthat where "... the Act attempts to delegate. to eitherthe Public Service Commission or the cooperative.powers and functions which determine such policyand which fix the principles which are to control, theAct is unconstitutional." Likewise, the court foundthat the portion of the Act that permitted supplying ofservice without certificates if a "consent" agreementwas entered into by the cooperative and public utilityas to service areas also was unconstitutional, as againthe cooperative was permitted to determine whether acertificate should be granted.

The impact of the Johanneson decision immediatelybecame evident. Since the provisions of the Territo­rial Integrity Act allowing for "consent" agreements inlieu of certificates of public convenience and necessitywere declared unconstitutional, it was apparent thatthe caseload of the commission and the issuance ofcertificates would increase substantially. In anticipa­tion of this increase and to reduce the delay causedby the notices and hearings necessary for the issu·ance of certificates, the Public Service Commissionrequested an opinion of the Attorney General as towhether conditional certificates could be issuedwithout the usual full scale hearing anddetermination. The Attorney General. in an opiniondated October 30. 1967, found that the issuing ofconditional certificates without hearing was proper,provided that the controversy was fully submitted tothe commission by an interested party in such amanner so that a decision could be made. and thatthe parties waived the notice and hearing required inthe issuance of a certificate of public convenience andnecessity. Thus, the issuing of temporary certificatesunder certain conditions was upheld.

Although. as noted above, the primary purpose ofthe Act was to keep to a minimum wasteful duplica·tion of capital-intensive utility services and conflictsbetween suppliers of electricity, a continuous series ofdisputes. as discussed in Tri-County Electric Coopera­tive V. Elkin. 224 N.W.2d 785 (N.D. 1974). has arisenbetween rural electric cooperatives and stockholder­owned utilities. The court noted that typically, these

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suits arise from disputes as to which supplier of elec·tricity is entitled to serve a customer in a rural areanear a municipality where the investor·owned utilityholds a franchise. The court further noted that whenSection 3 was declared unconstitutional, the legisla·tive directions to the Public Service Commission wereeliminated and no criteria upon which the commissioncould make its decisions remained. However, thisdeficiency was remedied by the court in Application ofOtter Tail Power Co., in which the court establishedthat in addition to customer preference. factors to beconsidered in determining whether an application fora certificate of public convenience and necessityshould be granted include "the location of the lines ofthe supplier; the reliability of the service which will berendered by them; which of the proposed supplierswill be able to serve the area more economically andstill earn an adequate return on its investment; andwhich supplier is best qualified to furnish electric

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service to the site designated in the application andwhich also can best develop electric service in thearea in which such site is located without wastefulduplication of investment service." Application of OtterTail Power Co., 169 N.W.2d 415, 418 (N.D. 1969).Thus, customer preference is not a controlling factorbut only one of a number of factors which must beconsidered for a certificate of public convenience andnecessity to be granted.

Finally, as noted above, the court has established arequirement that a new customer's request for serviceby an electric public utility is necessary to invoke thePublic Service Commission's jurisdiction to considerthe public utility's application for a certificate ofpublic convenience and necessity to extend service toan area outside the corporate limits of a municipality.Capital Electric Cooperative Inc. v. Public ServiceCommission, 534 NW.2d 587, 592 (N.D. 1995).