dissenting.
[¶ 37] I respectfully dissent.
[¶ 38] Black Hills Trucking (“BHT”) argues the North Dakota Industrial Commission (“NDIC”) lacks jurisdiction over the discharge of produced saltwater on a public road. The majority responds by discussing NDIC’s general authority over petroleum well-site operations and disposal of oilfield wastes, including saltwater. Majority opinion, ¶¶ 12-19. But they do not examine the actual grounds on which NDIC seeks to impose nearly $1 million in penalties.
[¶ 39] Examination of the particular statutes and regulations relied upon by NDIC as a basis for the complaint in this case leads me to agree with BHT. I reach this conclusion because the NDIC’s adjudicatory authority is not plenary, but instead is limited to that delegated by the legislature. See Schwind v. Dir., N.D. Dept. of Transp., 462 N.W.2d 147, 150 (N.D. 1990) (“A public administrative body has such adjudicatory jurisdiction as is conferred on it by statute. The jurisdiction of an administrative agency is dependent upon the terms of the statute and must meet at least the basic mandatory provisions of the statute before jurisdiction is established.” (citations omitted)). I believe the majority errs here because it confers on NDIC greater authority than was provided to NDIC in 2014 under the statutes and the administrative code. The majority also erroneously concludes the North Dakota Legislature did not give primary jurisdiction over the discharge of produced saltwater on a public road to the Department of Health, and the penalty imposed by NDIC violates the Constitution. I would reverse.
A
[¶ 40] NDIC charged BHT with violations of N.D. Admin. Code § 43-02-03-19.2 (2013) for a February 8, 2014 fluid dump on a gravel road (Count One); for a February 14, 2014 fluid dump on a gravel road (Count Two); and for a March 3, 2014 incident leaving “two puddles and a trail of fluid” on an area adjacent to a gravel road (Count Three).
[¶ 41] NDIC relies on N.D. Admin. Code § 43-02-03-30.1 (2013) for a claim that the February 8, 2014 and February 14, 2014 incidents each were a “spill or leak” that unlawfully “allowed [fluid] to flow over, pool, or rest on the surface of the land or infiltrate the soil on the gravel road” (Counts Four and Five); for the March 3, 2014 incident where BHT allowed the “two puddles and a trail of fluid” “to flow over, pool, or rest on the surface of the land or infiltrate the soil on the gravel road” (Count Six); and for not properly removing the discharged fluids and allowing the fluids “to remain standing within or outside of diked areas” after the “discharged fluids were not properly removed from the gravel road” (Count Seven, Eight and Nine).
[¶ 42] Section 43-02-03-19.2, N.D. Admin. Code, relates to NDIC regulation of mineral exploration and development, oil and gas conservation, and is titled “disposal of waste material” and in 2014 provided in pertinent part:
“All waste material associated with exploration or production of oil and gas must be properly disposed of in an authorized facility in accordance with all applicable local, state, and federal laws and regulations.
“All waste material recovered from spills, leaks, and other such events shall immediately be disposed of in an authorized facility, although the remediation of such material may be allowed onsite if approved by the director.”
[¶ 43] Section 43-02-03-30.1, N.D. Admin. Code, is titled “leak and spill cleanup” and in 2014 provided:
“At no time shall any spill or leak be allowed to flow over, pool, or rest on the surface of the land or infiltrate the soil. Discharged fluids must be properly removed and may not be allowed to remain standing within or outside of diked areas, although the remediation of such fluids may be allowed onsite if approved by the director. Operators must respond with appropriate resources to contain and clean up spills.”
[¶ 44] I agree with the majority that NDIC has extensive power and authority to regulate oil and gas development in North Dakota. Majority opinion, ¶ 12. I also agree we have said NDIC’s “powers are continuous ... and are exclusive.” Envtl. Driven Solutions, LLC v. Dunn Cty., 2017 ND 45, ¶ 9, 890 N.W.2d 841 (quoting Egeland v. Cont’l Res., Inc., 2000 ND 169, ¶ 11, 616 N.W.2d 861). But the buzz words “continuous” and “exclusive” are being used here to supplant actual wording of the statute, where in Dunn Cty. the words were used in the context of comparing NDIC’s legal authority to those of county government when approving the construction location of a waste oil processing facility. Id.
[¶ 45] The actual statute conferring NDIC’s regulatory authority to act stated:
“The Commission has the authority:
$ ⅜ ⅜ $
(2) To regulate:
(a) The drilling, producing, and plugging of wells, the restoration of drilling and production sites, and all other operations for the production of oil or gas.
(b) The shooting and chemical treatment of wells,
(c) The spacing, of wells.
(d) Operations to increase ultimate recovery such as cycling of gas, the maintenance of pressure, and the introduction of gas, water, or other substances into producing formations.
(e) Disposal of saltwater and oilfield wastes.
(1) The commission shall give all affected counties written notice of hearings in such matters at least fifteen days before the hearing.
(2) The commission may .consider, in addition to other authority granted under this section, safety of the location and road access to saltwater disposal wells, treating plants, and all associated facilities.”
N.D.C.C. § 38-08-04(2) (2013). NDIC and the.majority rely on words in subdivisions (2)(a) and (2)(e), and the majority, proclaims NDIC’s jurisdiction “clearly exists” under these provisions. Majority opinion, ¶ 18.1 respectfully disagree.
[¶ 46] The words of this statute first state NDIC’s jurisdiction is over “all other operations for the production of oil and gas.” N.D.C.G. § 38-08-04(2)(a) (2013). BHT was not the well operator and it is not reasonable to conclude that the remote disposal of produced saltwater is “operations” by a non-operator for purposes of NDIC’s regulatory authority. To rule otherwise would grant NDIC plenary jurisdiction over literally every person, piece of work, commerce, product and byproduct movement to or from a well, all under the guise of being part of “operations for the production of oil or gas.” Such an expansive reading of the statute is not warranted by its plain words or by the context in which those words appear.
[¶ 47] Nor do I believe N.D.C.C, § 38-08-04(2)(e) (2013) provided NDIC authority to regulate the remote transportation or disposal of produced, saltwater. That section was, at the time of events pertinent to this case, limited to “saltwater disposal wells, treating plants, and all associated facilities.” Id. The statutory specification of “wells,” “plants” and “facilities” is far less authority than the “cradle-to-grave jurisdiction over saltwater and oilfield waste” repeatedly claimed by NDIC in its filings with this Court. Rather, the words of the statute make plain that NDIC’s jurisdiction related to “wells,” “treating plants” and “associated facilities.” Id. I do not agree public road's could fairly be' described as any of these three things.
[¶ 48] NDIC next argued and the majority agreed that N.D. Admin. Code § 43-02-03-30.1 (2013) applied to more than “operators.” Majority opinion, ¶¶ 15-17. At the time of events in this case, the regulation applied to “operators.” See ¶ 10, above. The regulation was amended in 2015, after events in this matter, to state: “Operators and responsible parties must respond [to any spill or leak] with appropriate resources to contain and clean up spills.” N.D. Admin. Code § 43-02-03-30.1 (2015). The majority characterizes the addition of the words “and responsible parties” as a clarification rather than a substantive claim. Majority opinion, ¶ 16. They then- build on the “clarification” to conclude others who are not operators are responsible for spill or leak clean up. Id.
[¶ 49] I again respectfully disagree with the majority.' While clean up obligations now exist for operators and others, nothing in the prior plain language allowed for such a conclusion. Rather, the prior statute limited clean up obligations to “operators,” and BHT was not an operator. We must accept this clear statement of law from the face of the statute. See Estate of Christeson v. Gilstad, 2013 ND 50, ¶ 12, 829 N.W.2d 453 (“When engaging in statutory interpretation, this Court has consistently recognized that it must be presumed the legislature intended all that it said, said all that it intended to say, and meant what it has plainly expressed.”). Therefore, I do not believe the law gave NDIC legal authority to seek the relief sought against BHT in Counts 1-3 of the complaint.
B
[¶ 50] The majority next accepts NDIC’s argument that its assertion of jurisdiction over remote disposal of saltwater was not an unlawful encroachment on the North Dakota Department of Health’s (“DOH”) primary jurisdiction. Again, I do not agree.
[¶ 51] The legislature established a regulatory scheme granting NDIC authority over produced saltwater when it is generated and stored at well sites, and when it is disposed of at a facility. See N.D.C.C. § 38-08-04(2)(a), (2)(e) (20Í3). At the same time, the legislature expressly provided DOH with jurisdiction over the transportation of produced saltwater. See N.D.C.C. § 23-29-03(14) (2013) (“ ‘Solid waste’ means ... discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations”), 23-29-02 (2013) (declaring the regulation of solid waste transportation to be one of the purposes of N.D.C.C. ch. 23-29); N.D. Admin. Code § 33-20-01.1-04(3) (2013) (requiring solid waste to be transported “in a manner that provides for public safety, [and] prevents uncontrolled introduction into the environment”).
[¶ 52] BHT was transporting produced saltwater over public highways. Produced saltwater is a solid waste under North Dakota law. N.D.C.C. .§ 23-29-03(14) (2013). DOH has specific and comprehen-. sive authority over transportation of solid waste, which vests DOH with clear and direct (i.e, primary) jurisdiction in this matter.
[¶ 53] The primary jurisdiction’ doctrine generally applies when an agency’s jurisdiction overlaps with a court’s jurisdiction. This Court has expressed disapproval of bifurcated legal proceedings that “create duplication, and uncertainty, and waste manpower and money, with no appreciable result, and all without improving'the administration of justice.” Shark Bros., Inc. v. Cass Cty., 256 N.W.2d 701, 705 (N.D. 1977); see Amerada Hess Corp. v. Conrad, 410 N.W.2d 124, 126 n.1 (N.D. 1987); City of Minot v. Central Ave. News, Inc., 325 N.W.2d 243, 243 (N.D. 1982) (illustrating “the evils that flow from thoughtless bifurcation or trifurcation of actions”). -
[¶ 54] In the exercise of its regulatory jurisdiction over hauling produced water, DOH cited BHT with multiple violations relating to' the spills, including:
• That BHT hauled solid waste (produced saltwater) without a valid ■ waste transporter’s permit issued by DOH; '
• That BHT unlawfully abandoned solid waste on a street or highway;
• That BHT deposited solid. wastes where they may cause pollution of . the state’s waters;
•. That BHT did not report spills of solid waste to DOH.
In response to DOH’s Notice of Violations, BHT entered an Administrative Consent Agreement where it “[did] not dispute the findings, in- the Department’s Notice of Violation.” BHT agreed to pay a $459,000 administrative penalty, with $259,000'sus-pended on certain conditions. Among the conditions were that BHT would train its drivers on legal requirements,-regarding spills and that BHT would not apply for a “Waste Transporter Permit” for five years. During the five year period, BHT could apply to the DOH for a “probationary Waste Transporter Permit” which would be subject to “any conditions reasonably related to environmental protection, such as conditions requiring such waste tracking and equipment to prevent such waste leaking from trucks.”
[¶ 55] In view of the regulatory system in place at the time of the spills, I agree with BHT that the logic underlying our prior applications of the primary jurisdiction doctrine should inform us in this case. Here, NDIC imposed daily $12,500 fines totaling $875,000 for alleged failures to properly remove discharged fluids. At the same time, D.OH’s Consent Agreement covered' the same spills, imposed a substantial fine, and imposed regulatory sanctions directly related to transportation of produced saltwater. It also should not be lost on us that DOH—the Department with clear authority over transportation of waste—required no remediation or reclamation. BHT contacted both the county and the township with jurisdiction over the roads and neither required nor requested any remediation or reclamation. By contrast, NDIC seeks to impose fines totaling $875,000 for BHT’s failure to remediate, yet NDIC has not and cannot articulate what environmental harms resulted from the spills or what efforts would be needed to address them. When asked to identify any environmental consequence resulting from the spills, NDIC’s representative testified, “I believe there is probably some. I don’t have the evidence, though.” And, while NDIC’s order criticizes and fines BHT for failing to remediate the spills, the order never specifies what remediation efforts could have or should have been performed, and concedes that any harms arising from the spills “may not be readily quantifiable.”
[¶ 56] In view of clear law vesting DOH with jurisdiction over transportation of solid waste, and in view of NDIC’s at best questionable jurisdiction over produced saltwater that is moved away from a well site and that is not at a facility, I would conclude NDIC has impermissibly interfered with DOH’s primary jurisdiction in this matter. As a result, NDIC cannot lawfully assert or prosecute any of the claims in the complaint.
C
[¶ 57] The final issue upon which I part company with the majority relates to whether the amount of NDIC’s fine was constitutionally suspect. BHT argues the fine was unconstitutionally excessive and due process was violated when NDIC sought to impose daily fines for lack of remediation, yet did not give BHT notice of violation or ever demand remediation. The Administrative Law Judge (“ALJ”), Patrick Ward, addressed these issues. NDIC rejected ALJ Ward’s recommendation. I agree with ALJ Ward and incorporate the relevant portion of his decision below.
“Administrative proceedings must not violate the due process rights of the parties appearing, and must conform to ‘[b]asic notions of fundamental fairness.’ Morrell v. North Dakota Dep’t of Transp., 1999 ND 140, ¶ 9, 598 N.W.2d 111. Published cases in North Dakota dealing with due process in administrative hearings have generally focused on the minimum requirements of procedural due process: notice and a meaningful opportunity for a hearing. E.g., Schlittenhart v. North Dakota Dep’t of Transp., 2015 ND 179, ¶ 27, 865 N.W.2d 825. However, the North Dakota Supreme Court has also recognized that the concepts of due process and fairness ‘are flexible and must be analyzed on a case-by-case basis.’ Wahl v. Morton Cty. Soc. Servs., 1998 ND 48, ¶ 6, 574 N.W.2d 859.
“Federal courts have recognized that when a party is potentially liable for penalties that accrue daily, an administrative agency has an obligation to notify a party of a violation at the time the agency acquires knowledge of that violation: ‘it would seem unreasonable to permit the commission to knowingly let daily penalties accrue without giving notice of the commission’s position at the earliest reasonable time.’ [ United States v. ITT Cont'l Baking Co., No. C-1220, slip op. at 5, 1971 WL 596 (D. Colo. Aug. 2, 1971), dismissal denied, 462 F.2d 1104 (10th Cir. 1972).] The district court’s opinion labeled this statement as ‘obiter dictum,’ because the court also held that the Federal Trade Commission could not levy daily accruing penalties against the defendant. The district court’s ruling on daily-accruing penalties was upheld by the Tenth Circuit, but overruled by the United States Supreme Court. United States v. ITT Cont'l Baking Co., 420 U.S. 223, 243, 95 S.Ct. 926, 43 L.Ed.2d 148 (1975). The Supreme Court took note of the district court’s comments on the agency’s need to give notice, but explicitly declined to rule on the issue. Id. at 226 n.2, 95 S.Ct. 926.
“The Second Circuit subsequently expressed broad agreement with the idea that an agency cannot knowingly allow daily penalties to accrue without providing notice of the violation, but noted that it was difficult for a reviewing court ‘unacquainted with the Commission’s workload’ to determine what constituted reasonably timely notice. United States v. J[.]B. Williams Co., 498 F.2d 414, 435 (2d Cir. 1974).
“The rule proposed by the federal district court in ITT Conti Baking is sound and should be adopted in this case. Here, the Commission met with representatives -of Black Hills after the February 8 and February 14 incidents; those representatives informed Commission staff that, based on their conversations with Leo Slemin, they believed that the February 14 incident was a onetime event. Commission staff failed to notify Black Hills of the February 8 incident at this meeting, and failed to notify Black Hills at that time of either the February 8 incident or the subsequent March 3 incident until it served Black Hills with the Complaint. The Commission had knowledge of what it believed were violations that it could use as a basis to pursue daily $12,500 fines, knew that Black Hills was not aware of two of the three alleged incidents, and still failed to notify Black Hills of .the incidents or order immediate remediation. The Commission’s conduct in this, case violates basic notions of fundamental fairness, and this is another reason the Commission should refrain from imposing the daily-accruing penalties it seeks in Count Seven (for the alleged February 8 incident) and Count Nine (for the alleged March 3 incident).
“The actions of Mr. Slemin, the Black Hills[] driver, were deliberate and intentional, against the law, and clearly not consistent with company policy, based on testimony of the various company witnesses who participated in the hearing. Given that fact, it is difficult to see how BHT could have taken remedial action or even been aware of Slemin’s conduct without advice from someone who knew what he was doing. It is fundamentally unfair for the Commission to now slam BHT with the maximum allowable fine as a punitive and deterrent measure for incidents in which it was holding its aces up its sleeve during its meeting with BHT. If any daily penalties are allowed to accrue in this case, they should be reasonably related to the gravity of the offense and the knowledge or scienter of BHT,”
[¶ 58] I agree with ALJ Ward that NDIC’s fines aré both punitive and excessive because the fines bear no relationship to the damage caused or the cost of remediation or reclamation. As indicated above, NDIC could not identify environmental harm resulting from the spills, and neither it nor any other governmental body ever requested much less ordered any work at the sites. The fines therefore are aimed at punishing BHT and warning others that they will be treated harshly for similar misconduct. While punishment might otherwise be an option if NDIC had jurisdiction over the violation, the actual punishment meted out must comport with both due process and the excessive fines clause. Here, the facts ■ demonstrate that NDIC complied with neither, and the fines sought in Counts 7, 8 and 9 of the complaint should have been barred by the Constitution.
[¶ 59] Daniel J. Crothers