dissenting.
[¶ 52] I respectfully dissent. Vogel has asserted a proper cause of action under the Environmental Law Enforcement Act of 1975 (“ELEA”). The majority’s holding both frustrates the purpose of the ELEA and disregards its plain language.
[¶ 53] In paragraphs 23 and 24, the majority quotes N.D.C.C. § 32-40-06, which authorizes a person aggrieved by the violation of an environmental statute to bring action in district court and acknowledges that N.D.C.C. § 32-40-03(2) is an environmental statute as defined by the ELEA. However, the majority’s holding eviscerates the ELEA by requiring an aggrieved person to first exhaust administrative remedies before bringing an action under the ELEA. This is contrary to the plain language of the statute: “The remedies provided by this chapter shall be cumulative and shall not replace statutory or common-law remedies.” N.D.C.C. § 32-40-04. The majority’s holding removes the private enforcement power the ELEA was meant to provide.
[¶ 54] The majority holding is also out of step with other jurisdictions’ treatment of similar legislation. Other jurisdictions have recognized that environmental protection acts like the ELEA were enacted to ensure enforcement of environmental laws despite inaction or indifference on the part of state agencies.
Michigan’s EPA was the first legislation of its kind and has attracted worldwide attention. The act also has served as a model for other states in formulating environmental legislation. The en*487actment of the EPA signals a dramatic change from the practice where the important task of environmental law enforcement %oas left to administrative agencies without the opportunity for participation by individuals or groups of citizens. Not every public agency proved to be diligent and dedicated defenders of the environment.
Ray v. Mason Cnty. Drain Comm’r, 393 Mich. 294, 224 N.W.2d 883, 887 (1975) (emphasis added).
[¶ 55] In more recent cases, the Michigan Court of Appeals and the Supreme Court of Michigan have specifically held that under Michigan’s Environmental Protection Act (“MEPA”) exhaustion, of administrative remedies is not required before citizens may bring suit; See Preserve the Dunes, Inc. v. Dep’t of Envtl. Quality, 253 Mich.App. 263, 655 N.W.2d 263 (2002), rev’d 471 Mich. 508, 684 N.W.2d 847 (2004). In these cases, the Michigan Court of Appeals and the Supreme Court of Michigan decided a number of issues under MEPA. The Michigan Department of Environmental Quality issued a permit that allowed a private entity to mine sand from sand dunes that were protected under various environmental statutes. 655 N.W.2d at 268-69. A local citizen's’ group sued the state agency under MEPA for violating the environmental statutes. Id.
[¶ 56] The Court of Appeals concluded the citizens could bring an action under MEPA despite not exhausting other administrative remedies available to them: “[T]his Court [has] reiterated the rule that the MEPA provides a direct method for enforcing environmental regulations and challenging an administrative agency’s decision without exhausting administrative remedies. Further, this Court stated that the MEPA is expressly supplementary to other administrative and regulatory procedures provided by law_It is unnecessary for a party to :exhaust administrative remedies before seeking relief under the MEPA.” Preserve the Dunes, 655 N.W.2d at 271 (emphasis in original) (citations omitted).
[¶ 57] The Court of Appeals also explained that courts should decide environmental issues under MEPA'independently of administrative procedures because administrative rules may fall short: “Noting that the MEPA is supplementary to other administrative and regulatory procedures provided by law, the court correctly stated that the MEPA specifically authorizes a court to determine the validity, reasonableness, and applicability of any standard for pollution or pollution control and to specify a new or different pollution control standard if the agency’s standard falls short of the substantive requirements of MEPA.” Preserve the Dunes, 655 N.W.2d at 276 (emphasis in original).
[¶ 58] The Supreme Court of Michigan agreed with these. conclusions: “MEPA provides for immediate judicial review of allegedly harmful conduct. The statute does not require exhaustion of administrative remedies before a plaintiff files suit in circuit court.” Preserve the Dunes, 684 N.W.2d at 850. Michigan’s MEPA may be broader than North Dakota’s ELEA, because Michigan appears to give the courts the authority to. determine the validity of pollution standards whereas the North Dakota Act gives only the authority to enforce environmental laws. However, the underlying principle of providing citizens with an enforcement mechanism for violation of environmental laws is the same. The majority’s requirement of exhaustion of administrative remedies will dilute that purpose — particularly if the agency is the impediment or is merely dilatory in its enforcement. ,
[¶ 59] Minnesota has reached the same conclusion in its application of the Minne*488sota Environmental Rights Act (“MERA”). In Minnesota ex rel. Swan Lake Area Wildlife Ass’n v. Nicollet Cnty. Bd. of Cnty. Comm’rs, 711 N.W.2d 522 (Minn.Ct. App.2006), the Minnesota Court of Appeals held individuals may bring suit -under MERA without first exhausting administrative remedies. In that case, an environmental association sued a county board over a dispute concerning the construction of a dam. The issue at the center of the litigation — how high to build the dam— was governed by drainage provisions found in Minnesota’s state code. The county board argued that “because the drainage authority is the proper arbiter of claims asserted under the drainage code, the district court erred in determining that it had subject matter jurisdiction over a drainage-related claim brought under [MERA].” Id. at 523.
[¶ 60] Concluding this ¡was the only issue to be decided on appeal, the Court of Appeals held “that the district court has subject matter jurisdiction over respondent’s MERA claim regardless of the administrative processes and remedies available under the drainage provisions of [the state code].” Swan Lake, 711 N.W.2d at 525-26. The court interpreted the language of MERA, which stated its remedies “shall be in addition to any administrative ... rights and remedies now or hereafter available” to necessitate this result. Id. at 525 (emphasis in original). The court reasoned: “The legislature could have supplied an exception'for MERA claims subject to drainage code proceedings. But it did not. And this court cannot supply that which the legislature purposely omits or inadvertently overlooks.” Id. See also Minnesota ex rel. Fort Snelling State Park Ass’n v. Minneapolis Park & Rec. Bd., 673 N.W.2d 169, 177 (Minn.Ct.App. 2003) (“this civil action under MERA was authorized regardless of administrative processes”).
[¶ 61] To be clear, courts have not interpreted these environmental enforcement statutes to be limitless. The Supreme Court of Minnesota has explained the burden plaintiffs must meet to establish a MERA claim. See Minnesota ex rel. Schaller v. Cnty. of Blue Earth, 563 N.W.2d 260, 267 (Minn.1997). The court explained MERA “established] a private right of action by which any person residing within the state might sue ... to protect the state’s natural resources....” Id. at 264 (quoting MERA). It concluded two types of conduct give rise to MERA claims: “(1) any conduct by any person which violates, or is likely to violate, any environmental quality standard, permit, or similar rule; and (2) any conduct which materially adversely affects or is likely to materially adversely affect the environment.” Id. The court instructed the following factors should be considered to determine whether conduct gives rise to a MERA claim.
(1) The quality and severity of any adverse effects of the proposed action on the natural resources affected;
(2) Whether the natural resources affected are rare, unique, endangered, or have historical significance;
(3) Whether the proposed action will have long-term adverse effects on natural resources, including whether the af-fécted resources are easily replaceable (for example, by replanting trees or restocking fish);
(4) Whether the proposed action will have significant consequential effects on other natural resources (for exaipple, whether wildlife will be lost if its habitat is impaired or destroyed);
(5) Whether the affected natural resources are significantly increasing or decreasing in number, considering the *489direct and consequential impact of the proposed action.
Mat 267.
■[IF62] The Minnesota Supreme Court has recognized the. environmental statute itself may require some criteria .to establish a materially adverse effect on the environment. But burdens extraneous to, and contrary to, the plain language of the ELEA, such as requiring exhaustion of administrative remedies, violate express legislative intent. N.D.C.C. § 32-40-02. This is especially true when the statute contemplates the possibility that a state agency may be a defendant. N.D.C.C. § 32-40-06. To bring an action under the ELEA, a party must have suffered an injury in fact as a result of an alleged violation of an environmental statute, rule, or regulation. The Vogel complaint .alleges the necessary elements of a cause of action under the ELEA and § 32-40-06 states the district court is open to her to determine whether she can prove a cause of action.
[¶ 63] Prior to now, this Court has not had occasion to interpret North , Dakota’s ELEA. The majority’s inaugural interpretation here strips the statute of the very purposes the legislature expressed for its enactment. We need only look to. the plain language of Chapter 32-40. The ELEA is written to ensure environmental laws are enforced even when state agencies fail to act or are dilatory:
The legislative.assembly of North Dakota enacts this Environmental Law Enforcement Act in recognition of the vital role played by environmental laws in maintaining the health, safety, and general welfare of the state’s citizens; the need to maintain a sound system of law, order, and justice; and the need to provide relief to-those aggrieved by a failure of others to abide by or enforce the state’s environmental laws.”
N.D.C.C. § 32-40-02 (emphasis added). In other words, the legislature has recognized that a violation may exist because of a state agency’s failure to enforce the environmental laws it is charged with enforcing. It makes little sense under the ELEA to require the party aggrieved by such dereliction of duty to first exhaust remedies before the agency that may have allowed a violation to persist, especially when that agency may be the agency the plaintiff is suing. Such a requirement defeats the very purpose of the ELEA. ,:
[¶64] The majority'requires plaintiffs to first utilize the remedy provided in N.D.C.C. § 38-08-06.4 before they may use the remedy the legislature provided when it passed the ELEA. The majority does not base its preferred order of remedies on language in either statute. Rather, it invokes the judicial doctrine of' exhaustion of administrative remedies. All the while, the majority calls these remedies “cumulative.” The majority supports this conclusion by stating: “If a party is allowed to bring a judicial action for a violation of N.D.C.C, § 38-08-4)6.4 before they pursue the administrative remedies provided by the statute, the ELEA will replace the statutory remedy.” Majority Opinion at ¶ 25. This is simply false, ignores the fact that both remedies are statutorily granted, and confuses the nature of cumulative remedies.
[¶ 65] The existence of the ELEA does nothing to take away the authority of- the Industrial Commission, whose authority to act under Chapter 38-08 will still exist. “The remedies provided by [the ELEA] shall be cumulative and shall not replace statutory or common-law remedies.” N.D.C.C. § 32-40-04. A cumulative remedy. is “[a] remedy available to a party in addition to another remedy that still remains in force.” Black’s Law Dictionary, 1408 (9th ed.2009). We have concluded *490cumulative remedies “are not identical and neither the pursuit of one of the available remedies nor the failure to pursue one will bar an action on the other” Meier v. Novak, 338 N.W.2d 631, 633 (N.D.1983) (emphasis added).
[¶ 66] It is not clear what the majority suggests by referencing Professor Robert Beck’s testimony before the adoption of the ELEA in paragraph 25. Professor Beck is simply stating the nature of a cumulative remedy; that it is intended to be in addition to, and not to take away, an existing remedy. Both continue to exist as this Court recognized in Meier, 338 N.W.2d at 633. The cumulative nature of the ELEA is clear from the report of the testimony of David Niss, Attorney, Legislative Council, in Hearing on H.B. 1059 Before the Natural Resources Comm., 44th N.D. Legis. Sess. (1975): “On H.B. 1059 Mr. Niss stated that a person can sue if he can prove (1) damages and if the law is being broken and (2) allows enforcement of environmental laws by citizen-mandamus which allows a citizen to enforce duties owed to the citizens by agencies.” A remedy is not cumulative to other remedies if the other remedies must be utilized before it — such a remedy is secondary. The majority ignores this straightforward legal concept and disregards the very reason the ELEA was adopted.
[¶ 67] Shortly after the ELEA was adopted, the attorney general issued an opinion explaining individuals can bring suit under the ELEA to enforce environmental laws that were otherwise enforceable by state agencies: “[T]his Act provides a procedural remedy by which an ‘aggrieved’ plaintiff may directly enforce environmental statutes and regulations otherwise enforceable by state agencies charged with their enforcement. The Act grants jurisdiction to the court to enforce, by private lawsuit, laws and regulations which otherwise may be enforceable only by the state agency.” N.D. Att’y Gen. Op. 1977, 40 (emphasis added).
[¶ 68] It is clear that when the legislature was considering enacting the ELEA, it intended to give enforcement power to citizens because doing so would be beneficial to the state and its environment. The legislature expressly recognized that some lack of enforcement was simply the result of overburdened resources. Professor Beck’s testimony focused on how the ELEA would help to remedy this problem:
(1) It permits the Attorney General’s office to enforce the various environmental laws that we now have on the books in North Dakota. Under present law the enforcement responsibility is left essentially with our state’s attorneys around the state and many of those individuals are part time and already have a heavy load of responsibility. (2) It allows aggrieved persons to bring court actions against those who have violated current North Dakota laws. This bill does not create any new environmental law. The law then goes into some detail to specify the circumstances the bringing of a lawsuit by parties to enforce our present environmental law. There are specific provision[s] as to who may sue, the type of notice that- is to be given before suit may be brought, bond requirement, awarding of cost and specific provision of type of relief that a court may grant. This law is not intended to do away with existing remedies that a person may have. We need to take positive action to implement environmental laws already on the books. This is a middle of the road approach because it is between doing nothing and going to the point where a number of states, such as Minnesota, allows any citizen to bring a law suit to enforce the law. This law does not go that far. This bill would *491contribute to the enforcement of the existing environmental law and any additional law the assembly should choose to enact.
Hearing on H.B. 1059 Before the Judiciary Comm., 44th N.D. Legis. Sess. (Jan. 20, 1975) (“ELEA Legislative History ”) (testimony of Prof. Robert Beck, University of North Dakota School of Law).
[¶ 69] This reasoning is even more applicable to the waste of natural gas after N.D.C.C. § 38-08-06.4 was amended in 1993. The statute’s language was changed from “[t]he industrial commission shall enforce this section and, for each well operator found to be in violation of this section, shall determine the value of flared gas for purposes of payment of gross production tax and royalties under this section and its determination is final” to discretionary language. Now the industrial commission “may” enforce this section. The legislative history indicates that, in part, these changes reflect the lack of resources available to comply with the mandatory language of the former statute. See e.g. Hearing on S.B. 2312 Before the House Natural Resources Comm., 53rd N.D. Legis. Sess. (Feb. 26, 1993) (“SB 2342 allows the industrial commission to look at cases brought before them on an economical basis.” “It’s a bill that allows economics to come into play.” “It gives the industrial commission more flexibility.” “The impact of this bill means it would cut down on our workload.”). Royalty owners, the state coffers, and the quality of our environment would all benefit from the additional enforcement resources the ELEA was intended to provide.
[¶70] The majority applies our traditional tests for an implied private cause of action under Trade ‘N Post, L.L.C. v. World Duty Free Americas, Inc., 2001 ND 116, 628 N.W.2d 707, to section 38-08-06.4. I might agree with this approach if § 38-08-06.4 were the only applicable statute. It is not. Section 38-08-06.4, N.D.C.C., is the substantive environmental statute that Vogel asserts was violated. Chapter 32-40, the ELEA, is a separate statute designed to create a private right of enforcement. The legislature has clearly and unambiguously stated that it is a cumulative remedy. This Court ought not create roadblocks that were specifically eliminated by the legislature. By enacting the ELEA, the legislature intended for courts to determine whether our environmental laws have, in fact, been violated. “[A]ny person ... aggrieved by the violation of any environmental statute ... may bring an action in the appropriate district court .,. to enforce such statute_” N.D.C.C. § 32-40-06.
[¶ 71] I dissent.
[¶ 72] CAROL RONNING KAPSNER