CHAPTER 13 APPEAL OF COMMISSION ORDERS
| Jurisdiction | United States |
(Sep 1985)
APPEAL OF COMMISSION ORDERS
Brown, Drew, Apostolos, Massey & Sullivan
Casper, Wyoming
INTRODUCTION
An array of administrative law concepts, procedural and substantive issues are suggested by the title of this paper. A detailed analysis of all of those concepts and issues under the laws of all of the producing states is, however, beyond the scope of this undertaking and the patience of the reader. Rather, the author's inquiry has been limited to the laws of several selected Rocky Mountain states1 and the focus of the paper to several topics which appeared preeminent.
First, a brief survey will be undertaken of principal procedural steps necessary to effect an appeal of an order of a conservation commission2 . Such procedures are, in the states surveyed, set forth by statute and/or court rule and reasonably easy to understand and accomplish. However, the reader is cautioned to examine closely all such procedural steps and the time frames specified in a particular case. The emphasis of the survey below is the common elements and procedures and those providing some problem or ambiguity to the practitioner. Further, the survey will not undertake an examination of the procedural steps necessary to perfect an appeal from the trial court to a state supreme court or intermediate appellate court.
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Next, an examination will be made of two principal issues in the reported decisions involving oil and gas conservation agency orders: 1) the adequacy of the record; and 2) the standard of review. Due apparently to the relative clarity of the substantive law governing the function of conservation agencies and the identity and alignment of the parties to a proceeding, no reported decision was found from the selected states involving such matters as primary jurisdiction3 , ripeness4 , or standing5 . The reader with an interest in such, as topics, as yet unexamined in the conservation agency context, is referred to administrative law treatise and articles.6
SURVEY OF PROCEDURE
With due regard to the caveat mentioned above,7 the following is an overview of salient procedural steps required under the law of all of the Rocky Mountain states examined.
a. Initiation of Appeal and Venue.
All of the states under consideration require, in order to commence the appellate process, the filing of a pleading variously termed a "notice of appeal", "petition for review" or "complaint". Parenthetically, only in New Mexico does it appear that a motion or petition for rehearing is a prerequisite to commencement of the appeal.8
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In Wyoming, an appeal is commenced by filing a petition for review within 30 days of written, certified notice to all parties of the commission's order, or of the denial of a petition for rehearing, or if a rehearing is held, within 30 days after written, certified notice to all parties.9 The venue of a petition for review in Wyoming may be governed by both a provision in the Administrative Procedure Act and a provision in the conservation law.10
The petition for review may be filed under the Administrative Procedure Act, in the county where the administrative action was taken (virtually always Natrona County), or in which any real property affected is located, or if no real property is affected, in the county where the party adversely affected resides or has its principal place of business.11 Under the conservation law, venue is proper in Laramie County, or where the complaining party resides, or in the United States District Court for the District of Wyoming, if it otherwise has jurisdiction.12 Although no case law yet exists, it appears venue would be proper in any of the places provided.
The appeal is commenced in North Dakota by the filing of a notice of appeal with the Industrial Commission within 30 days of the "entry" of the order complained of, or within 30 days of an order overruling a motion for rehearing.13 A copy of the notice of appeal is to be filed in the district court of Burleigh County for all conservation orders14 except those involving units. The notice is to be filed in the district court of the county
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where the land is located for orders involving unitization.15
In Montana, judicial review of an order is commenced by the filing of a suit for injunction against the Board of Oil and Gas Conservation in the district court where the board keeps its principal office or where the land affected is located.16
A complaint filed within 30 days after the order "becomes effective" is required in Colorado.17 Venue is apparently the City and County of Denver.18 Notice must be given to the Commission within 10 days of the filing of the complaint.19
In New Mexico, appeal is to the district court of the county where the property of the party adversely affected is located.20 A petition for review must be filed within 20 days of the "entry" of an order following rehearing or "after the refusal or [of] rehearing as the case may be."21
A party appealing a Utah Board of Oil, Gas and Mining order must file a complaint in a civil action in which the Board is a defendant within 90 days after the "entry" of the order.22 The action may be commenced in the district court of Salt Lake County, or in the district court where the complaining party resides, or in the United States District Court for the District of Utah, if it otherwise has jurisdiction.23
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b. Content of Initiating Pleading
In the states utilizing the complaint as the initiating pleading,24 the pleading presumably must comply with applicable rules governing civil cases. Colorado requires that the complaint specifically include the facts upon which the plaintiff alleges he is adversely affected by the commission order, reasons entitling him to relief and the relief requested.25
In the remaining states in which the more familiar notice of appeal or petition for review is utilized,26 the description of the content of the notice or petition is fairly uniform. The notice or petition must set forth the order complained of and briefly state the grounds of its invalidity or the basis of the appeal.27
c. Date From Which Time to Appeal Runs
As indicated, the date from which the time to file the initiating pleading runs in several of the states under consideration is the "entry" of the commission's order.28 No reported case was found which reveals that the date of the "entry" of the order has been explicated. Perhaps all practitioners involved have been sufficiently timely in their filings that the question has never arisen. In any event, it would appear that the "entry" of a commission order is tantamount to the "entry" of a judgment under applicable rules of civil procedure; viz. the entering or filing of the order on the official minute book, journal or other official record of the involved commission.29
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In Wyoming, in the absence of an extension thereof, the date from which the time to petition for review is unequivocal: 30 days from certified, written notice, to all parties of the order of the commission.30 The Wyoming Commission practice, however, belies an otherwise simple procedure.
The Wyoming Commission maintains a mailing list, upon which any interested person may be listed. The Commission's monthly notices of hearing and orders issued as the result of the prior month's hearings are transmitted to the whole mailing list, by regular mail, at regular intervals. However, this mailing may occur in excess of 30 days from the date of the hearing and knowledge by the parties of the Commission's decision. The Commission does not mail, by certified mail, its orders to the parties involved. No Wyoming decision yet exists in which a lack of timely filing due to this practice by the Commission or a discussion of the requirement has been at issue. The author, however, respectfully suggests that the Wyoming Commission should commence mailing its orders, at least in contested cases, by certified mail to the participants.
d. Stay of Commission Orders Pending Appeal
None of the states considered has a provision automatically staying the effectiveness of a conservation commission order pending appeal. In all of the states surveyed, such a stay or suspension of the effectiveness of the order must be specially applied for with the usual
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additional requirement of the posting of a bond or other security as determined by the court or conservation commission.31
ADEQUACY OF RECORD— HEREIN ON THE NECESSITY OF BASIC FINDINGS
At the outset, it should be noted that only in Montana is the review of a conservation commission order not based upon the record of the proceeding before the commission.32 Notwithstanding whether commenced under a pleading styled a complaint, notice of appeal or petition for review, in the balance of the states considered, the review conducted by the court is upon the record of the conservation agency proceeding.33
"Adequacy of the record" conceptually suggests that courts engage in a review of the record of the administrative agency proceeding to determine if that record supports the decision reached. That endeavor is clearly the function of a court reviewing an administrative action on the record.34 Additionally, "adequacy of the record" can suggest an inquiry by the court to determine if the evidence posited by one side or the other rises to the level required to establish a prima facie case or sustain a burden of proof.35 The former, however, is more a function of the standard of review applied by the court, and the latter a threshold inquiry which has received little attention in the law of the states considered. The latter is also more properly included in other papers contained in this
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institute. For purposes here, the adequacy of the record will be limited to a discussion of reported decisions finding fault with a conservation commission...
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