The Minnesota Public Utilities Commission (PUC) for the first time has established an official policy on Tribal Engagement and Consultation.
In it, the Commission commits to annual consultations with each Native Nation and establishing a formal process to consult with Native Nations throughout the year when specific issues emerge.
Commissioners approved the policy last December and it hasn’t gotten a lot of attention. It’s the first significant change to result from criticism leveled at the Commission for how it handled the contentious Enbridge Line 3 tar sands pipeline hearings, particularly its treatment of Native Americans and those who opposed the pipeline.
The Minnesota Office of Legislative Auditor’s evaluated the PUC’s public engagement efforts for much of 2019 and the first half of 2020. The Auditor released its report in July. More changes are sure to come.
Native Nations and Native peoples are asserting more political power. Consider that Peggy Flanagan, a member of the White Earth Nation, is Lieutenant Governor, and in Minnesota’s recent primary, six candidates who are Native American advanced in state legislative races.
In recent years, a number of Native Nations have intervened in PUC’s cases, another sign of their growing political power.
Both Gov. Mark Dayton and Gov. Tim Walz issued executive orders directing certain executive branch agencies to develop and implement tribal consultation policies. Neither order included the PUC. In June, 2019 PUC Chair Katie Sieben wrote Gov. Walz and indicated the Commission’s commitment to replicate and implement his policy.
As a result, the PUC adopted its Tribal Engagement/Consultation Policy in December. Will Seuffert, PUC Executive Secretary, said Commission staff “developed this policy based on a review of other state agency Tribal Consultation plans and input from tribal liaison staff.”
The policy recognizes:
A unique government-to-government relationship exists between federally recognized Tribal Nations in Minnesota, the State of Minnesota and the United States federal government. The U.S. Constitution, numerous treaties, statutes, Federal case law, regulations and executive orders, as well as political, legal, moral, and ethical principles have recognized the right of Tribal Nations to self-governance and self-determination.
Comment: I wonder whether the PUC would have handled the Enbridge Line 3 case differently had this policy been in place. Native Nations repeatedly argued that Line 3 would violate their treaty rights. They have treaty rights to hunt, fish and gather on lands outside their reservations, in what is called “ceded territory.” Line 3 would diminish those rights.
The PUC refused to consider treaty rights an issue within its jurisdiction. If Commissioners would have understood the rights established by treaties and federal case law — as well as a sense of their moral and ethical obligations to Native Nations — they could have decided that Line 3 could not proceed until treaty rights issues were resolved. Its silence on treaty rights allowed Line 3 to proceed without resoving treaty rights. It silence sided with Enbridge.
The PUC has a key difference from other state agencies. It’s a “quasi-judicial body,” operating more like a court. That limits the interactions it has with individual parties during a specific case without the other side being present. (The legal term is ex-parte communications.)
According to the Auditor’s report: “Commissioners can and do interact with entities that are parties to PUC cases (such as utilities) in other settings about other issues. Ex parte communication rules do not prevent PUC from consulting with tribes about matters that are not pending before it.”
This kind of relationship building outside of contested cases is very important. It’s a chance to meet people in a non-adversarial setting.
The PUC’s new policy says:
The Commission will consult with each Tribal Nations in Minnesota on prior to September 1 of each year. By October 1 of each year, these priorities will be submitted to the Office of the Governor and Lieutenant Governor for review. …
The Commission will also engage in consultation with Tribal Nations in Minnesota on specific issues outside of the Annual Consultation. Specific Matter Consultation may be initiated by a Tribal Nation or group of Tribal Nations, or by the Commission.
The policy also commits the PUC to:
- Maintaining a list of preferred contact information for each Tribal Nation in order to facilitate ease of communication.
- Maintaining documentation and information for Commission staff about the location of Tribal Nations and how that information relates to regulated utility services.
- Notifying Tribal Nations and their representatives of dockets before the Commission that may affect the interests of Tribal Nations.
- Assisting and advising Tribal Nations on how to effectively participate in Commission proceedings, short of providing legal advice.
The PUC also included language to protect itself from any lawsuit based on alleged violations of its Tribal Engagement/Consultation Policy.
This policy is not intended and does not create any right to administrative or judicial review, or any other right or benefit or responsibility, substantive or procedural, enforceable against the Commission, its officers or employees, or its subdivisions or any other persons.