Scanlon v. Schrinar

759 P.2d 1243, 1988 Wyo. LEXIS 105, 1988 WL 85483

• Court: Wyoming Supreme Court
• Decided: August 17, 1988
• Docket: 87-145
• Status: Published

Opinions

MACY, Justice.

Moira Q. Scanlon petitioned the district court for judicial review of the decision of the Commissioner of Public Lands to terminate her oil and gas lease. The case was then certified to this Court, and we are presented with the following issues by Mrs. Scanlon:

I. WHETHER MRS. SCANLON’S EXCLUSIVE RIGHT TO REMOVE SUBSURFACE RESOURCES IS A PROPERTY RIGHT.

II. WHETHER THE COMMISSIONER OF PUBLIC LANDS MUST ABIDE BY HIS OWN REGULATIONS IN DEALING WITH MRS. SCANLON’S EXCLUSIVE RIGHT TO REMOVE SUBSURFACE RESOURCES.

III. WHETHER A “MESSAGE” ON A FORM SOLICITING A “REPLY” CONSTITUTES A “FINAL DECISION OF AN AGENCY IN A CONTESTED CASE.”

It is not necessary to address these issues because there are determinative jurisdictional defects.

We dismiss.

On December 22,1982, Mrs. Scanlon was the successful applicant in the simultaneous oil and gas lease drawing held for the right to lease Parcel No. 699.¹ As a result, Mrs. Scanlon and the Board of Land Commissioners entered into a lease agreement, Lease No. 83-00040, which provided in applicable part:

Annual rentals on all leases shall be payable in advance for the first year and each year thereafter. No notice of rental due shall be sent to the lessee. If the rental is not paid on or before the date it becomes due, notice of default will be sent to the lessee, and a penalty of $0.50 per acre for late payment will be assessed.

The lessee is not legally obligated to pay either the rental or the penalty, but if the rental and penalty are not paid within thirty (30) days after the notice of default has been received, the lease will terminate automatically by operation of law. Termination of the lease shall not relieve the lessee of any obligation incurred under the lease other than the obligation to pay rental or penalty. The lessee shall not be entitled to a credit on royalty due for any penalty paid for late payment of rental on an operating leased.[²]

On January 21, 1986, the Commissioner of Public Lands sent the following letter by certified mail, return receipt requested, to Mrs. Scanlon:

Payment of advance rental in the . amount of $1280.00 on lease No. 83-00040 was not received in this office pri- or to the due date of January 2, 1985.

In accordance with a new rule approved by the Board of Land Commissioners and effective September 29,1981, you may retain this lease in good standing if you wish to pay the rental of $1.00 per acre plus 50<p per acre penalty for late payment.

If your rental and penalty payment in the amount of $1920.00 is not received in this office within 30 days from receipt of this notice, your lease will be terminated by operation of law.

The post office attempted to deliver this letter on January 25 and 30, 1986, with no success and returned it to the Commissioner of Public Lands on February 10, .1986.

The Commissioner of Public Lands received Mrs. Scanlon’s certified check dated January 10, 1987, in the amount of $3,840 for rental payments due on January 2, 1986, and January 2, 1987, plus penalty payments incurred on the lease. On January 15, 1987, that check was returned to Mrs. Scanlon with a notice stating:

We are returning your official bank check No. 177545 dated Jan. 10, 1987 in the amount of $3,840.00 which was sent to this office to pay rental for lease #83-[0]0040. Please be advised that this lease was terminated Feb. 21, 1986 for failure to pay rental when due. We are enclosing [a] copy of [the] default letter and [a] copy of [the] envelope in which we tried to deliver [the] letter.[³]

On February 6, 1987, Mrs. Scanlon, through her attorney, resubmitted the check and requested reconsideration of the decision to terminate her lease because she had never received the required pretermin-ation notice. The Attorney General’s office, on behalf of the Commissioner of Public Lands, responded on February 12, 1987, stating:

I am responding on behalf of my client, Howard M. Schrinar, to your letter of February 5, 1987, concerning the cancellation of State Lease 83-00040.

It is our position that the lease terminated automatically by operation of law as per the terms of the lease and Section 9 of the Rules and Regulations Governing Leasing of Subsurface Resources. Under these provisions, the lease was not “cancelled” on February 21,1986, by any action taken by the Board of Land Commissioners or its staff. The lease terminated automatically 30 days after receipt of the notice of rental default. It is our position that a lessee has constructively received a notice on the date the United States Postal Service makes its last attempt to deliver a certified letter.

Because Mrs. Scanlon did not attempt to cure her default in paying rentals until nearly one year after the rental default notice was constructively received, she can hardly claim a right to cure the default. Enclosed is Mrs. Scanlon’s check for $3,840.00 which I am returning to you. The lease will not be reinstated.

On February 18, 1987, Mrs. Scanlon’s attorney replied to the letter from the Attorney General’s office, stating in applicable part:

It is my understanding that your letter of February 12, 1987, on behalf of your client, Public Lands Commissioner, Howard M. Schrinar, constitutes his final decision. Mrs. Scanlon has now exhausted her administrative remedies, and whether or not her lease should be reinstated is now ripe for review in the District Courts of Wyoming.

If I have misstated your understanding, please let me know.

The Attorney General’s office did not answer this letter. On March 10, 1987, Mrs. Scanlon filed a petition for review in the district court.

The Commissioner of Public Lands filed a motion to dismiss with a supporting brief, and Mrs. Scanlon replied with her own brief in opposition. On June 5, 1987, a “Joint Motion for Certification to the Supreme Court” was filed by the parties. The district court, after allowing Amoco Production Company to intervene as a defendant/respondent to the action and after Amoco Production Company had consented to the motion for certification to the Supreme Court, certified this case for review by this Court.

Mrs. Scanlon argues that the notice dated January 15, 1987, informed her of the termination of her oil and gas lease but could not be considered as a final decision of an agency which was ripe for judicial review until after she had received the letter from the Attorney General’s office dated February 12, 1987, or until after some time had elapsed following her letter to the Attorney General’s office dated February 18, 1987, asking if such determination to terminate her lease was a final decision. We cannot agree.

Judicial review of an administrative action is governed by Rule 12 of the Wyoming Rules of Appellate Procedure. W.R.A.P. 12.01 provides:

To the extent that judicial review of administrative action by a district court is available, any person who is aggrieved or adversely affected in fact by a final decision of an agency in a contested case, or who is aggrieved or adversely affected in fact by any other agency action or inaction, or who is adversely affected in fact by a rule adopted by [an] agency, may obtain such review as provided in this rule.

W.R.A.P. 12.04 provides in pertinent part:

In a contested case, or in a noncontest-ed case where a statute places a time limit on appeal, the petition for review shall be filed within thirty (30) days after written, certified notice to all parties of the final decision of the agency or denial of the petition for a rehearing, or, if a rehearing is held, within thirty (30) days after written, certified notice to all parties of the decision thereon, except that upon a showing of excusable neglect based upon the failure of a party to learn of the decision or action, the district court may extend the time for filing the petition for review not exceeding thirty (30) days from the expiration of the original time herein prescribed.[⁴]

The January 15, 1987, notice to Mrs. Scanlon advised her of a final decision by an agency which adversely affected her rights.⁵ The correspondence between the Attorney General’s office and Mrs. Scan-lon’s attorney had no bearing on the finality of the agency’s decision and did not serve to toll the thirty-day period of time in which to file her petition for review.⁶ Although Mrs. Scanlon may have had meritorious issues for review, her failure to file her petition for such review within thirty days after receiving notice divested the district court of jurisdiction.

In the case of Stagner v. Wyoming State Tax Commission, 642 P.2d 1296, 1297-98 (Wyo.1982), we stated that untimely filing is a ground for dismissal of a petition for review:

Timely filing of a petition for review is mandatory and jurisdictional.

******

* * * [I]t must be within thirty days of such action or of notice of such action or of the time the person becomes aggrieved or adversely affected by such action, whichever is latest. A petition for judicial review may be timely if filed within thirty days after a rule or agency action or inaction adversely affects the person although the action, inaction, or adoption of the rule may have occurred long before that time. Likewise, a petition for review may be timely if filed within thirty days after receiving notice thereof although the action, inaction, or adoption of the rule may have occurred long before that time. In a contested case, the required notice of the decision will normally start the running of the thirty-day period.

“The law is almost elementary that whatever puts a party on inquiry amounts to ‘notice.’ ” Rodin v. State [ex rel. City of Cheyenne], Wyo., 417 P.2d 180, 195 (1966).

(Citations omitted.) See also Employment Security Commission of Wyoming v. Young, 713 P.2d 198 (Wyo.1986).

We also stated:

This court can have no greater jurisdiction of the subject matter than the trial court and where the trial court had no jurisdiction in an administrative appeal from an agency, this court must dismiss the appeal.

Snell v. Ruppert, 541 P.2d 1042, 1048 (Wyo.1975), quoted in Joelson v. City of Casper, Wyoming, 676 P.2d 570, 572 (Wyo.1984).

We hold that the district court lacked jurisdiction to proceed with this cause, and such lack of jurisdiction by the district court undermines the jurisdiction of this Court.

Dismissed.

THOMAS, J., files a specially concurring opinion.

URBIGKIT, J., files a specially concurring opinion in which THOMAS, J., joins.

1 . Parcel No. 699 is legally described as follows: N‘/2: EViSWA: SEVi of Section 16, T. 55 N., R. 81 W., 6th P.M. (560 acres); SE'/SW¼: SW/4SE1/: of Section 17, T. 55 N., R. 81 W., 6th P.M. (80 acres); and all of Section 30, T. 55 N., R. 81 W., 6th P.M. (639.48 acres).

2 . We note that the default provisions contained in Section 9 of the Rules and Regulations Governing Leasing of Sub-Surface Resources for the State of Wyoming Board of Land Commissioners and Wyoming Farm Loan Board, effective March 1, 1982, are identical to these lease provisions.

3 . The copy of the letter mentioned herein is apparently the certified letter sent by the Commissioner of Public Lands to Mrs. Scanlon on January 21, 1986.

4 .Such review is available by statute. W.S. 16-3-114(a) provides in applicable part:

Subject to the requirement that administrative remedies be exhausted and in the absence of any statutory or common-law provision precluding or limiting judicial review, any person aggrieved or adversely affected in fact by a final decision of an agency in a contested case, or by other agency action or inaction, or any person affected in fact by a rule adopted by an agency, is entitled to judicial review * * *. The procedure to be followed in the proceeding * * * shall be in accordance with rules heretofore or hereinafter adopted by the Wyoming supreme court.

5 . This becomes particularly apparent when it is recognized that on August 2, 1986, the Board of Land Commissioners entered into a lease agreement with Amoco Production Company for a portion of the land formerly leased by Mrs. Scanlon.

6 . If the soliciting of reconsideration or clarification of agency action were permitted, the limit on the time to file a petition for judicial review would be rendered meaningless.