All of these proceedings are dismissed with prejudice. The requests for administrative review by Sullivan Petroleum, Inc., which are directed to nonbinding advisory letters by the Department of Natural Resources, Division of Reclamation, are not ripe for review. The requests for administrative review which are directed to notices of violation were filed after the 30-day limitation in which review must be taken.
FINDINGS OF FACT
1. The department of natural resources (the "Department") is an "agency" within the meaning of IC 4-21.5 (the "administrative orders and procedures act" or "AOPA").
2. The Department is charged with the administration of IC 13-8 governing the drilling and operation of any well for oil and gas purposes. IC 13-8-3-1. To assist in the performance of this administrative duty, the Department has adopted rules which are codified at 310 IAC 7.
3. Established within the Department is a division of oil and gas (the "Division"). IC 14-3-3-6(c)(16). The Division administers duties of the Department under IC 13-8. IC 13-8-2-9 and 310 IAC 0.7-3-3.
4. The natural resources commission (the "Commission") is the "ultimate authority", as defined under IC 4-21.5-1-15, for the Department under IC 13-8. IC 13-8-3-5 and IC 143-3-21(a).
5. The AOPA provides an affected person with opportunity for administrative review of an "agency action" made by the Department in the administration of IC 13-8.
6. An "agency action" is defined in IC 4-21.5-1-4 to include each of the following:
(A) The whole or part of an order.
(B) The failure to issue an order.
(C) An agency's performance of, or failure to perform, any other duty, function, or activity controlled by the AOPA.
7. An "order" is defined in IC 4-21.5-1-9 to mean "an agency action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one (1) or more specific persons. The term includes a license."
8. Administrative cause number 92-182G through 92-191G and 92-199G through 92-211G are requests for administrative review of a series of letters addressed to Sullivan Petroleum, Inc. ("Sullivan"). These letters allege noncompliance by Sullivan with provisions of IC 13-8 and 310 IAC 7 with respect to designated wells for oil and gas purposes.
9. The letters direct Sullivan to contact the Division to establish a compliance schedule for the wells. The letters also state that a failure to establish a compliance schedule or to correct the alleged violations with result in the issuance of a notice of violation.
10. The letters from which administrative review is taken in administrative cause number 92-182G through 92-191G and 92-199G through 92-211G do not constitute an "agency action" as defined in IC 4-21.5-1-4. They are not determinative of Sullivan's legal interests and, so, are not orders. Neither does the Division have a duty to provide the letters before issuing notices of violation. The letters are nonbinding and advisory and were provided to Sullivan merely as a courtesy.
11. The constitutional mandate of case or controversy requires a consideration of whether a case has matured or ripened into a controversy worthy of adjudication. U.S. Constitution, Article III. This concept is sometimes referred to as "ripeness"; and the Commission will not adjudicate an administrative proceeding which is not ripe. Goff v. DNR, 5 Caddnar 163 (1990).
12. The letters from which administrative review is taken in administrative cause number 92-182G through 92-191G and 92-199G through 92211G are not reviewable agency actions under the AOPA. These letters are not ripe for administrative review.
13. The requests for administrative review sought in administrative cause numbers 92-182G through 92-191G and 92-199G
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through 92-211G should be dismissed.
14. Administrative cause number 92-192G through 92-198G are requests for administrative review of separate notices of violation issued by the Division under IC 13-8-14 against Sullivan.
15. A notice of violation issued under IC 13-8-14 is controlled by IC 4-21.5-3-6. See IC 13-8-14-2 and IC 13-8-14-3.
16. Ordinarily, a notice of violation which is controlled by IC 4-21.5-3-6 would take effect 15 days after service. IC 4-21.53-6(d).
17. However, a notice of violation under IC 13-8-14 provides 30 days in which to seek administrative review. IC 13-8-14-3.
18. The Department avers in its "Motion to Dismiss" that each of the notices of violation for which administrative review is sought were served upon Sullivan before May 14, 1992. Sullivan does not contest this averment.
19. By a letter dated July 11, 1992 and received July 14, 1992, Sullivan filed its requests for review of the notices of violation reflected in administrative cause numbers 92-192G through 92-198G. These requests were not timely within IC 13-8-14-3 and should be dismissed.
20. As a matter of law, administrative cause number 92-182G and 92-191G and 92-211G should be dismissed because they seek to review nonbinding advisory letters which are not ripe for review. Administrative cause numbers 92-192G through 92-198G should be dismissed because they were filed after the 30-day time limitation established to review a notice of violation by the Division under IC 13-8-14.