Caward v. State ex rel. Oklahoma Dept. of Mines

Caward v. State ex rel. Oklahoma Dept. of Mines
1991 OK CIV APP 94
818 P.2d 506
62 OBJ 3307
Case Number: 75923
Decided: 09/24/1991

LELA A. CAWARD, D/B/A/ DUANE'S GRANITE PIT, APPELLEE,
v.
STATE OF OKLAHOMA, EX REL. OKLAHOMA DEPARTMENT OF MINES, APPELLANT.

Appeal From the District Court of Greer County; Charles Goodwin, Judge.

REVERSED.

Mark Secrest, Gen. Counsel, Oklahoma Dept. of Mines, Oklahoma City, for appellant.
Paul Stumbaugh, Mangum, for appellee.

MEMORANDUM OPINION

BAILEY, Judge.

¶1 Appellant State of Oklahoma, ex rel. Oklahoma Department of Mines (Appellant or ODM) seeks review of the Trial Court's order granting judgment to Appellee Lela A. Caward, d/b/a Duane's Granite Pit (Appellee or Operator) in Operator's action for judicial review of an ODM administrative order directing forfeiture of Operator's reclamation bond. Herein, ODM asserts error of the Trial Court (1) in reversing ODM's order of forfeiture, (2) in considering evidence outside the administrative record in rendering the decision, and (3) in holding that a mining lessor may relieve the lessee from the statutory obligation imposed by the Oklahoma Mining Lands Reclamation Act

¶2 The record reveals that in 1984 Operator obtained a lease of property from the owner of certain property located in Greer County, Oklahoma (hereinafter Landowner, not a party to this action) for the operation of a granite mine. On proper application and posting of an $11,000.00 certificate of deposit in lieu of bond to secure reclamation of the property,

3. That [Landowner] has agreed, and said agreement is made a part hereof, that [Landowner] relives [Operator] . . . of and from all burdens imposed for reclamation of the leased lands as provided by the laws of the State of Oklahoma, and particularly Title 45 Oklahoma Statutes Section 721 et seq., and [Operator] shall not be required for restoration of grading or vegetation as required by the said Reclamation Act; and holds [Operator] . . . harmless from complying with said Restoration Act.

¶3 In 1989, after inspection of the site, ODM gave a "Notice of Bond Forfeiture" to Operator for failure of Operator to reclaim the property, such reclamation required by statute.

¶4 Operator then sought judicial review in the District Court of the administrative decision, presenting evidence of Landowner's previous injunction restraining Operator from entering upon the premises. Based thereon, the Trial Court reversed ODM's order of forfeiture. ODM now appeals as aforesaid.

¶5 Neither party disputes that ODM is an "agency" within the scope of the Oklahoma Administrative Procedures Act, 75 O.S.Supp. 1987 §§ 250 et seq., and that ODM administrative decisions are subject to the same standard of review as are other agency decisions under 75 O.S. §§ 322 , 323. In that regard, District Court review of an administrative decision is confined to the record made before the agency.

¶9 ODM's prior order REINSTATED.

¶10 HANSEN, P.J., and ADAMS, J., concur.

Footnotes:

1 45 O.S. 1981 and Supp. 1983 §§ 721 et seq.

2 45 O.S.Supp. 1983 §§ 724 , 728(E).

3 45 O.S. §§ 725 (H), 729.

4 45 O.S. § 725 (H).

5 75 O.S. § 321 .

6 Seely v. Oklahoma Horse Racing Commission, 743 P.2d 685, 687-688 (Okl.App. 1987).

7 75 O.S. § 322 (3).

8 See, e.g., Dycus v. Belco Industries, Inc., 569 P.2d 553 (Okl.App. 1977) (contracts in derogation of statutes will not be enforced); Stanolind Oil & Gas Co. v. Phillips, 195 Okl. 377, 157 P.2d 751 (1945) (contract designed to allow violation of statute void as contrary to public policy); 45 O.S. § 722 (declaration of policy of Reclamation Act to protect natural resources and promote health, safety and general welfare of citizens of the state).

9 45 O.S. § 724 (D).

10 45 O.S. §§ 725 , 728.

11 75 O.S. § 322 (1)(a-g).

12 The issue of any remedy Operator may have for recovery of the forfeited bond under the "hold harmless" clause of the agreement between Landowner and Operator, embodied in the previous injunctive order, is not before us.