Vogel v. Marathon Oil Corporation , 2016 N.D. LEXIS 104 ( 2016 )

McEVERS, Justice.

[¶ 1] Sarah Vogel appeals from a district court judgment dismissing without prejudice her complaint against Marathon Oil Company. Vogel argues her claims should not be dismissed because she has a private right of action for violations of the statute restricting the flaring of gas 'produced with crude oil from an oil well, N.D.C.C. § 38-08-06.4, and she was not required to exhaust administrative remedies. We affirm.

I

[If 2] Marathon operates the Elk USA 11-17H well in Mountrail County. The well began producing, hydrocarbons in 2011 and continued producing through at least January 2014. Vogel owns mineral interests and has received royalties from the oil or gas produced and sold from the well.

[¶ 3] In October 2013, Vogel, individually and on behalf of those similarly situated, sued Marathon seeking declaratory relief as well as money damages for failure to pay royalties on flared gas. Vogel alleged Marathon flared all ór some of the gas produced from the well, some of the gas was flared in violation of N.D.C.C. § 38-08-06.4, Marathon owes royalties on the value of the flared gas, and she is entitled to sue for and recover damages under N.D.C.C. § 38-08-06.4. Vogel also sought damages for common law claims of conversion and waste. Vogel also requested class certification, alleging Marathon failed to pay royalties for flared gas on 29 wells and claiming the class includes over 100 similarly situated royalty owners. Vo-gel later amended her complaint, alleging she also has a private right of action under the Environmental Law Enforcement Act (“ELEA”), N.D.C.C. ch. 32-40, to enforce payment of royalties attributable to gas flared in violation of N.D.C.C. § 38-08-06.4.

[¶ 4] Marathon answered and subsequently moved to dismiss Vogel’s complaint under N.D.R.Civ.P. 12(b)(1) and (6) for lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted. Marathon argued the complaint should be dismissed for failure to state a valid claim because N.D.C.C. § 38-08-06.4 does not expressly provide for a private right of action for damages based on a violation of the statute, there is no implied private right of action for damages under N.D.C.C. § 38-08-06.4, the ELEA does not create a private right of action for a violation of N.D.C.C. § 38-08-06.4, and N.D.C.C. ch. 38-08 provides the exclusive remedy for alleged improper flaring preempting any common law claims for conversion and waste.. Marathon also argued the district court lacked subject matter jurisdiction and Vogel’s claims should be dismissed because the North Dakota Industrial Commission has exclusive jurisdiction over the matter and Vogel failed to exhaust her administrative remedies. Vogel opposed Marathon’s motion.

[¶ 5] After a hearing, the district court granted Marathon’s motion to dismiss. The court stated N.D.C.C. ch. 38-08 provides the Industrial Commission with very broad authority to regulate and administer oil and gas related activities in this state, N.D.C.C. ch. 38-08 exclusively provides the remedies Vogel seeks, and Vogel did not exhaust her administrative remedies. The court concluded N.D.C.C. § 38-08-06.4 does not provide an express or implied private right of action, the ELEA does not provide a private right of action but may provide a cumulative remedy if the Industrial Commission fails or refuses 'to act and the administrative remedies are exhausted, and N.D.C.C. § 38-08-06.4 is the controlling law and provides all of the remedies for flaring. The court concluded it did not have subject-matter jurisdiction because Vogel did not exhaust her administrative remedies, and she did not state a claim for which relief can be granted. A judgment dismissing Vogel’s complaint without prejudice was entered.

II

[¶ 6] Vogel argues the judgment dismissing her complaint without prejudice is appealable. Marathon does not dispute that the judgment is appeal-able. A dismissal without prejudice generally is not appealable, but it may be final and appealable if it has the practical effect of terminating the litigation in the plaintiffs chosen forum. Rolette Cty. Soc. Serv, Bd. v. B.E., 2005 ND 101, ¶ 4, 697 N.W.2d 333. The judgment requires Vogel to pursue her administrative remedies and terminates her attempt to seek damages through the courts individually and as a class action. The judgment has the practical effect of terminating the litigation in Vogel’s chosen forum. We conclude the judgment in this case is appealable.

III

[¶ 7] A claim may be dismissed for lack of subject-matter jurisdiction under N.D.R.Civ.P. 12(b)(1). Generally, dismissal for lack of subject matter jurisdiction is appropriate if the plaintiff failed to exhaust administrative remedies. Thompson v. Peterson, 546 N.W.2d 856, 861 (N.D. 1996). A dismissal for lack of subject-matter jurisdiction will be reviewed de novo on appeal if the jurisdictional facts are not disputed. Id. at 860.

[¶ 8] A motion to dismiss for failure to state a claim under. N.D.R.Civ.P. 12(b)(6) tests the legal sufficiency of the claim presented in the complaint. In re Estate of Nelson, 2015 ND 122, ¶ 5, 863 N.W.2d 521. We review a dismissal under N.D.R.Civ.P. 12(b)(6) de novo on appeal. Nelson, at ¶ 5. We construe the complaint in the light most favorable to the plaintiff and accept the well-pleaded allegations as true. Id.

IV

[¶ 9] Vogel argues her claims under N.D.C.C. § 38-08-06.4 should not be dismissed because there is an implied private right of action for damages under the statute. She contends producers are liable to mineral owners for royalties on the value of gas flared in violation of N.D.C.C. § 38-08-06.4 and the statute provides mineral owners with a right to recover damages when royalties are not paid.

[¶ 10] Section 38-08-06.4, N.D.C.C., provides restrictions on the flaring of gas from an oil well, stating:

1. As permitted under rules of the industrial commission, gas produced with crude oil from an oil well may be flared during a one-year period from the date of first production from the well.

2. After the time period in subsection 1, flaring -of gas from the well must cease....

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4. For a well operated in violation of this section, the producer shall pay royalties to royalty owners upon the value of the flared gas and shall also pay gross production tax on the flared gas at the rate imposed under section 57-51-02.2.

5. The industrial commission may enforce this section and, for each well operator found to be in violation of the section, may determine the value of flared gas for purposes of payment of royalties under this section and its determination is final.

6. A producer may obtain an exemption from this section from the industrial commission upon application...,

[¶11] Although N.D.C.C. § 38-08-06.4(4) states a producer shall pay royalties to royalty owners upon the value of the gas flared in violation of the statute, N.D.C.C. ch. 38-08 does not expressly provide a private right of action for damages for a violation of N.D.C.C. § 38-08-06.4. Vogel argues the statute implies a private right of action, allowing a royalty owner to bring suit in district court seeking damages for unpaid royalties,

[¶ 12] Three factors are applied to determine whether a private right of action should be implied under a statute:

(1) [W]hether the plaintiff is one of the class for whose special benefit the statute was enacted; (2)whether there is an indication of legislative intent, explicit or implicit, either to create such remedy or to deny one; and (3) whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff.

Empower the Taxpayer v. Fong, 2012 ND 119, ¶ 4, 817 N.W.2d 381 (quoting Ernst v. Burdick, 2004 ND 181, ¶ 11, 687 N.W.2d 473). Whether a statute creates a private right of action is a question of legislative intent. Trade ‘N Post, L.L.C. v. World Duty Free Americas, Inc., 2001 ND 116, ¶ 13, 628 N.W.2d 707. “The ‘ultimate issue’ is whether the legislature intended to create a particular cause of action, and ‘unless this [legislative] intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of a private remedy simply does not exist.’ ” Id. at ¶ 13 (quoting Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988)). “The legislature’s silence in failing to expressly provide a private right of action is a strong indication it did not intend such a remedy.” Trade ‘N Post, at ¶ 14. The party arguing an implied right of action exists bears the burden of proof to establish the legislature intended to create the remedy. Id. at ¶ 14. Vogel has the burden of proving the legislature intended to create a private right of action for damages under N.D.C.C. § 38-08-06.4, through the language and focus of the statute, the legislative history, or the statutory purpose. See Trade ‘N Post, at ¶ 14.

[¶ 13] Vogel contends she is a member of the class for whose special benefit N.D.C.C. § 38-08-06.4 was enacted and she meets the first factor of the three-part test. Marathon conceded in its brief that Vogel may be a member of the class. Vo-gel owns mineral interests from which oil and gas were produced, and therefore she appears to be a member of the class for whose benefit the statute was enacted. However, that is only one factor, and Vo-gel must establish the legislature intended to create a private right of action. See Trade 'N Post, 2001 ND 116, ¶15, 628 N.W.2d 707.

[¶ 14] There is nothing in the plain language of N.D.C.C. ch. 38-08 indicating'the legislature intended to provide a private right of action for damages for violations of N.D.C.C. § 38-08-06.4. Rather, N.D.C.C. ch. 38-08 contains a comprehensive regulatory scheme providing an administrative remedy for a violation of N.D.C.C. § 38-08-06.4.

[¶ 15] Under the plain language of N.D.C.C. § 38-08-06.4(1), (2), and (6), an operator is permitted to flare gas produced with crude oil from a well for one year from the date of first production from the well, and after that time flaring must cease, unless the operator receives an exemption from the Industrial Commission. If a well is operated in violation of N.D.C.C, § 38-08-06.4, the producer is required to pay royalties to royalty owners upon the value of .the flared gas and pay taxes on the flared gas. N.D.C.C. § 38-08-06.4(4). The statute also provides, “The industrial commission may enforce this section and, for each well operator found to be in violation of this section, may determine the value of flared' gás for purposes of payment • of- royalties under this section and its determination -is final.” N.D.C.C. § 38-08-06.4(5). The Industrial Commission “has continuing jurisdiction and authority over all persons and property, public and private, necessary to enforce effectively the-provisions of [N.D.C.C. ch. 38-08].” N.D.C.C. § 38-08-04.- Chapter 38-08, N.D.C.C., authorizes an interested person to petition the commission to act, the commission is required to set a hearing and give notice if there is a petition, and it is required to enter an order within thirty days after the hearing. N.D.C.C. § 38-08-11(4). Any party adversely affected by an order of the Industrial Commission may request reconsideration or may appeal the order to the district court. N.D.C.C. §§ 38-08-13 and 38-08-14.

[¶ 16] A royalty owner may petition the Industrial Commission for a determination of royalties on gas flared in violation of N.D.C.C. § 38-08-06.4. N.D.C.C. § 38-08-11(4). If a royalty owner flies a petition, the Industrial Commission is required to set a date for a hearing and give notice and must enter an order within thirty days after a hearing. Id. If the royalty owner is adversely affected by the Industrial Commission’s order, they may apply for reconsideration or appeal to the district court. N.D.C.C. §§ 38-08-13 and 38-08-14. Chapter 38-08, N.D.C.C., includes a comprehensive regulatory scheme and gives royalty owners an administrative remedy for violations of N.D.C.C. § 38-08-06.4.

[¶ 17] A statute expressly including a comprehensive regulatory scheme is a strong indication the legislature did not intend to provide other remedies. Trade ‘N Post, 2001 ND 116, ¶ 17, 628 N.W.2d 707. In other cases where a statute has expressly included a comprehensive regulatory scheme, we have explained:

The structure of these statutes similarly counsels against recognition of an implied right of action in this case. The language of the statutes entrusts enforcement of the statutory requirements to the appropriate [regulatory] agencies .... The comprehensive character of a remedial scheme expressly fashioned by [the legislature] strongly evidences an intent not to authorize other remedies. It is not within the competence of the judiciary to amend these comprehensive enforcement schemes by adding to them another private remedy not authorized nor intended by [the legislature].

Id. (quoting R.B.J. Apartments, Inc. v. Gate City Sav. & Loan Ass’n, 315 N.W.2d 284, 288-89 (N.D.1982)). The legislature did not create a right under N.D.C.C. § 38-08-06.4 without providing an enforcement mechanism; rather, it provided an administrative remedy. The chapter’s comprehensive regulatory scheme is a strong indication the legislature did not intend to provide a private right of action for damages under N.D.C.C. § 38-08-06.4.

[¶ 18] In contrast, N.D.C.C. § 38-08-17(2) expressly provides for a private right of action for injunctive relief:

If the commission fails to bring a suit to enjoin a violation or threatened violation of any provision of this chapter ... within ten days after receipt of written request to do so by any person who is or will be adversely affected by such violation, the person making such request may bring suit in the person’s own behalf to restrain such violation or threatened violation in any court in which the commission might have brought suit.

We have said the legislature clearly expresses its intent not to create a private right of action for damages when a statute expressly provides a private right of action for injunctive relief and does not include a private right of action for damages. Trade ‘N Post, 2001 ND 116, ¶20, 628 N.W.2d 707.

[¶ 19] The legislative history of N.D.C.C. § 38-08-06.4 also does not support Vogel’s claim of a private right of action for damages. Representative Ron Anderson, who sponsored the 1985 bill which enacted N.D.C.C. § 38-08-06.4, testified:

This bill has to do with a limit on the flaring of gas at crude oil producing wells. The federal government already requires royalties to be paid on flared gas at well sites. After one year if the well has not been hooked up to a natural gas line the producer can do one of three things: 1) He can stop well production; 2) He can continue production if he pays a tax and royalties to the land owner; or 3) he can obtain an exemption from the Industrial Commission. This gives the Industrial Commission the ability to charge a tax or require royalties to be paid to the land owner.

Hearing on H.B. 1521 Before the Senate Nat. Res. Comm., 49th N.D. Legis. Sess. (Feb. 21, 1985) (testimony of Rep. Ron Anderson) (emphasis added) [“Hearing on H.B. 1521 ”]. This legislative history indicates the legislature intended the Industrial Commission would determine- whether royalties are required to be paid to the royalty owner and does not contemplate the courts would make that determination.

[¶ 20] The legislative history for subsequent amendments to the statute also does not support Vogel’s interpretation of the statute. When N.D.C.C. § 38-08-06.4 was enacted in 1985, it stated, “The 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 ... royalties under this section and its determination is final.” 1985 N.D. Sess. Laws ch. 401. In 1993, the legislature amended the statute, and removed the word “shall” from this provision and replaced it with the word “may.” 1993 N.D. Sess. Laws ch. 368, § 1. Vogel contends the amendment means the Industrial Commission has discretion in deciding whether it will enforce N.D.C.C. § 38-08-06.4 and the presence of any administrative remedy is “illusory.” The legislative committee hearings on the 1993 amendment included testimony that every well was required to go through the hearing process to get an exemption under the prior version of the statute, there- were some geographic areas where there were no gas lines and an exemption was required because it was not economically feasible to build a pipeline, and a hearing would be held, even though an exemption was required. Hearing on S.B. 2342 Before the Senate Nat. Res. Comm., 53rd N.D. Legis. Sess. (Jan. 29, 1993) (testimony of Lowell Ridgeway, ND Petroleum Council, and Wes Norton, Industrial Commission) [“Hearing on S.B. 2812 Before Senate”]; Hearing on S.B. 2312 Before the House Nat. Res. Comm., 53rd N.D. Legis. Sess. (Feb. 26, 1993) (testimony of Norton) [“Hearing on S.B. 2312 Before House ”]. Testimony indicated the amendment to the statute would provide the Industrial Commission with discretionary authority to determine whether a hearing should be held and an operator should be required to demonstrate why a line was not being built, and the amendment would give the Industrial Commission more flexibility and would reduce the Commission’s workload. Hearing on S.B. 2312 Before Senate, supra (testimony of Ridgeway and Norton); Hearing on S.B. 2312 Before House, supra (testimony of Norton). The chapter still requires the Industrial Commission to act if an interested person files a petition. See N.D.C.C. § 38-08-11(4). The legislative history does not support Vogel’s claim that the administrative remedy is “illusory” and that a private right of action for damages is implied.

[¶21] Vogel has not established the legislature intended to create a private right of action for damages, and therefore we need not address the third factor to determine whether a private right of action is consistent with the statutory scheme. See Empower the Taxpayer, 2012 ND 119, ¶ 5, 817 N.W.2d 381. We conclude there is not an implied private right of action for damages under N.D.C.C. § 38-08-06.4 and the district court did not err in dismissing Vogel’s claims.

V

[¶22] Vogel argues the district court erred in dismissing her claim for damages under the Environmental Law Enforcement Act of 1975, N.D.C.C. ch. 32^0. She claims the ELEA provides a private right of action to enforce N.D.C.C. § 38-08-06.4-.

[¶ 23] The ELEA was enacted to provide relief to a person aggrieved by another’s failure to abide-by or enforce the state’s environmental laws. N.D.C.C. § 32-40-02. Section 32-40-06, N.D.C.C., authorizes an action for the violation of any eíivif onmental statute "or rule:

[A]ny person ... aggrieved by the violation of any environmental statute, rule, or regulation of this state may bring an action in the appropriate district court, either to enforce such statute, rale, or regulation, or to recover any damages that have occurred as' a result of the violation, or for both such enforcement and damages. Such action may be brought against any person, state agency, or county, city, township, or other political subdivision allegedly engaged in such violation.

“Aggrieved” for purposes of the ELEA means “the suffering of an injury in fact as á result of the alleged violation of a statute, rule, or regulation, and the injury is of the type the statute, rule, or regulation in question was intended to regulate or protect against.” N.D.C.C. § 32-40-03(1). In an action brought under the ELEA, the district court may grant the relief specified in the environmental statute allegedly violated, grant equitable relief, award damages, or enter any order it deems necessary to enforce compliance with the environmental statute. N.D.C.C. § 32-40-11.

[¶ 24] The ELEA provides a private right of action for ' a person aggrieved by an alleged violation of an environmental statute. An environmental statute is “any statute ... for the protection of the air, water, and other natural resources, including land, minerals, and wildlife, from pollution,’ impairment, or destruction.” N.D.C.C. § 32-40-03(2). Vogel contends N.D.C.C. § 38-08-06.4 is an environmental statute as defined by the ELEA. We agree. Oil and gas are generally classified as minerals. See State ex rel. Rausch v. Amerada Petroleum Corp., 78 N.D. 247, 251, 49 N.W.2d 14, 17 (1951); see also Mineral, Black’s Law Dictionary (10th ed.2014) (“1. Any natural" inorganic matter that has a definite chemical composition and specific physical properties that give it value ...; 2. A subsurface material that is explored for, mined, and exploited for its useful properties and commercial value”). One of the purposes of N.D.C.C. ch. 38-08 is to protect minerals by preventing the waste of oil and gas, which includes the unnecessary destruction of oh or gas. See N.D.C.C. §§ 38-08-01, 38-08-02(19), and 38-08-03. Section 38-08-06.4, N.D.C.C., limits the flaring of gas, protecting air from pollution and protecting minerals by preventing the unnecessary destruction or waste of gas. See Hearing on H.B. 113⅛ Before the Sen. Nat. Res. Comm., 63rd N.D. Legis., Sess. (Mar. 8, 2013) (Testimony of Rep. Todd Porter) (testified about the concern that there is a waste of the resource and the goal is to put it to a beneficial use); Hearing on S.B. 24-13 Before the House Fin. And Taxation Comm., 61st N.D. Legis. Sess. (March 4, 2009) (testimony of Rep. Frank Wald) (limiting flaring is good' for the environment); Hearing on H.B. 1521, supra (testimony of Dana K. Mount, Dir. of Envtl. Engineering at the Dep’t of Health); Hearing on H.B. 1521, supra (testimony of Rose Sickler, Chair of Dakota Res. Council). Section 38-08-06.4, N.D.C.C., is an environmental statute for purposes of the ELEA.

[¶ 25] Although the ELEA may provide a private right of action for a violation of N.D.C.C. § 38-08-06.4, any remedies the ELEA provides are cumulative and do not replace statutory or common law remedies. See N.D.C.C. § 82-40-04. Section 32-40-04, N.D.C.C., explicitly states the ELEA does not replace statutory remedies. See also Hearing on H.B. 1059 Before the House Judiciary Comm., 44th N.D. Legis. Sess. (Jan. 20, 1975) (testimony of Prof. Robert Beck stating the bill would allow parties to bring a lawsuit to enforce current environmental law but the law was not intended to “do away” with •existing remedies a person may already have). If a party is allowed to bring a judicial action for a violation of" N.D.C.C. § 38-08-06.4 before they pursue the administrative remedies provided by the statute, the ELEA will replace the statutory remedy. Pursuing the administrative remedies under N.D.C.C. ch. 38-08 should resolve any claim á royalty owner may have for royalties for a violation of N.D.C.C. § 38-08-06.4. However, ’ the ELEA provides a cumulative remedy and any remedy it provides may be pursued if the Industrial Commission fails or refuses to act when the administrative remedies aré pursued.

[¶ 26] Furthermore, when a general statutory provision conflicts with a special statutory provision, the two statutes must be construed to. give effect to both provisions if possible, but if the conflict is irrecr oncilable, the special statutory provision must prevail and must be construed as an exception to • the general provision. N.D.C.C. § 1-02-07. To the extent the ELEA and N.D.C.C. § 38-08-06.4 conflict, they can be construed - to give effect to both. The ELEA provides a cumulative remedy that may be pursued if the Industrial Commission fails or refuses to act.

[¶27] A 1977 Attorney General’s opinion about the ELEA Is consistent with our interpretation, stating:

With regard- to the Environmental Law Enforcement Act of 1975, ... this 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. 77-40. “Attorney General opinions are not binding upon this court and we will not follow them if they are inconsistent with the statutory interpretation that the court deems reasonable.” Sorum v. Dalrymple, 2014 ND 233, ¶ 10, 857 N.W.2d 96 (quoting Sauby v. City of Fargo,. 2008 ND 60, ¶ 12, 747 N.W.2d 65). The Attorney General interpreted the provisions of the ELEA and determined an aggrieved person may bring a private action to enforce an environmental statute, which otherwise is enforceable only by the state agency. In this case,. N.D.C.C. ch. 38-08 authorizes an interested person to petition the Industrial Commission pursuing administrative remedies or bring suit to enjoin an alleged violation. The provisions of N-D.C.C. ch. 38-08 are not enforceable only by the state agency and the administrative remedies must be pursued before an “aggrieved person” may bring a private action under the ELEA. The Attorney General’s interpretation is not inconsistent with our interpretation.

[¶ 28] Chapter 38-08, N.D.C.C., provides an administrative remedy for a royalty owner to pursue if there-is a violation of N.D.C.C. § 38-08-06.4 and that remedy must be pursued before pursuing a private action as an “aggrieved person” under the ELEA. The ELEA provides a cumulative remedy that is available if the Industrial Commission fails or refuses to act. We conclude the district court properly determined the ELEA may provide a cumulative remedy if the Industrial Commission fails or. refuses to act.

VI

[¶ 29] Vogel argues the district court erred in dismissing her common law claims for conversion and waste. She contends the common law claims are complementary remedies and do not conflict with N.D.C.C. § 38-08-06.4.

[¶ 30] The law of this state is expressed by various sources, including statutes and common law. N.D.C.C. § 1-01-03. This Court has said, “The common law is therefore adopted by statute as the basic law applicable to civil rights and remedies not defined by the statute. Where there is no express constitutional or statutory declaration upon the subject the common law is applied.” Tarpo v. Bowman Pub. Sch. Dist. No. 1, 232 N.W.2d 67, 70 (N.D.1975) (quoting McLaughlin Oil Co. v. First State Bank of Buffalo, 79 N.D. 525, 57 N.W.2d 860, 864 (1953)) (citations omitted). “In this state there is no common law in any case in which the law is declared by the code.” N.D.C.C. § 1-01-06. In construing N.D.C.C. § 1-01-06, this Court has said statutory enactments take precedence over and govern conflicting common law doctrines. Finstad v. Ransom-Sargent Water Users, Inc., 2014 ND 146, ¶ 12, 849 N.W.2d 165; Vandall v. Trinity Hosp., 2004 ND 47, ¶ 14, 676 N.W.2d 88. “[I]f a particular statute is so designed that it covers the entire field to which it relates, it does so to the exclusion of the common law.” In re White, 69 N.D. 61, 284 N.W. 357, 358 (1939). However, we have also said the common law remains relevant when there is no conflict between the statutory and common law. Rassier v. Houim, 488 N.W.2d 635, 636 (N.D.1992).

[¶ 31] Vogel’s common law claims of conversion and waste are based on her assertion that she is entitled to royalties for flared gas and include a request for damages for unpaid royalties on gas flared after production began, including royalties on gas flared during the first year of production. Conversion is the tor-tious detention or destruction of personal property, or a wrongful exercise of control over the property of another inconsistent with or in defiance of the property owner’s rights. Ritter, Laber and Assoc., Inc. v. Koch Oil, Inc., 2004 ND 117, ¶ 11, 680 N.W.2d 634; see also Great Am. Ins. Co. v. Am. State Bank of Dickinson, 385 N.W.2d 460, 462 (N.D.1986). Under the common law doctrine of waste, this Court, has said that “[w]aste may be defined as an unreasonable or improper use, abuse, mismanagement, or omission of duty touching real estate by one rightfully in possession, which results in a substantial injury.” Meyer v. Hansen, 373 N.W.2d 392, 395 (N.D.1985).

[¶ 32] Section 38-08-06.4, N.D.C.C., provides royalty owners with a right to receive royalties on flared gas, but that right is limited to flaring that violates the statute. See N.D.C.C. § 38-08-06.4(4). The plain language of N.D.C.C. § 38-08-06.4(4) states a producer must pay royalties on gas flared in violation of the statute. The legislature created a statutory right to royalties on flared gas, but" limited the right to royalties for gas flared in violation of the statute. Chapter 38-08, N.D.C.C., also provides a remedy for a royalty owner when gas is flared in violation of N.D.C.C. § 38-08-06.4, replacing common law claims for royalties on flared gas. Section 38-08-06.4, N.D.C.C., is designed to cover the entire field relating to royalties for flared gas.

[¶33] Furthermore, the statutory and common law conflict. Vogel requested damages for her common law conversion claim of unpaid royalties for gas flared during the first year of production. Section 38-08-06.4(1), N.D.C.C., authorizes a producer to flare gas produced with crude oil from an oil well during a one-year period from the date of first production from the well and does not require the producer pay royalties on the flared gas. Section 38-08-06.4, N.D.C.C., conflicts with any right royalty owners previously had under the common law for royalties on flared gas. “There cannot be two rules of law on the same subject contradicting each other,” and the statute prevails when the statutory provisions differ from previous case law. Finstad, 2014 ND 146, ¶ 12, 849 N.W.2d 166 (quoting Bornsen v. Prago-trade, LLC, 2011 ND 183, ¶ 15, 804 N.W.2d 56); see also Vandall, 2004 ND 47, ¶ 15, 676 N.W.2d 88.

[¶ 34] Vogel’s common law claims seek damages for unpaid royalties on flared gas. Section 38-08-06.4, N.D.C.C., regulates the flaring of gas from oil wells, gives royalty owners a right to royalties for gas flared in violation of the statute, and provides a remedy when the statute is violated. Because two contradictory rules of law on the same subject are precluded, we conclude N.D.C.C. § 38-08-06.4 governs any claim for royalties for flared gas. The district court did not err in concluding Vogel’s common law claims should be dismissed.

VII

[If 35] Vogel argues the district court erred in ruling she was required to exhaust administrative remedies before she could pursue any of her claims , in court. She contends she may choose the forum for relief because she has a private right of action.

[¶ 36] This Court has “consistently required the exhaustion of remedies before the appropriate administrative agency as a prerequisite to making a claim in court.” Brown v. State ex rel. State Bd. of Higher Educ., 2006 ND 60, ¶ 8, 711 N.W.2d 194. A party’s failure to exhaust administrative remedies will generally preclude making a claim in court. Id. The purpose of the exhaustion requirement has its basis in the separation of powers doctrine. Tracy v. Cent. Cass Pub. Sch. Dist., 1998 ND 12, ¶ 14, 574 N.W.2d 781. The requirement preserves agency authority and promotes judicial efficiency. Medcen-ter One, Inc. v. N.D. State Bd. of Pharmacy, 1997 ND 54, ¶ 11, 561 N.W.2d 634. The requirement recognizes the agency’s initial decision-making responsibility and allows the agency to use its particular expertise in resolving the dispute. See id.; Tracy, at ¶ 14. It “encourages administrative decision makers to explain the basis for their decisions and perhaps, most important, provides courts with the benefit of their expertise in such matters in the event of judicial review.” Med. Arts Clinic, P.C. v. Franciscan Initiatives, Inc., 531 N.W.2d 289, 295 (N.D.1995). The requirement provides an opportunity for the matter to be settled and avoid judicial review. Tracy, at ¶ 14. The court’s review of the matter is aided by the agency’s findings, conclusions, and record if the case makes its way into the court system. Id.

[¶ 37] The exhaustion requirement, however, does have several recognized exceptions, including when exhaustion, would be futile or if the case only involves the interpretation of an unambiguous statute. Kadlec v. Greendale Twp. Bd. of Twp. Supervisors, 1998 ND 165, ¶ 25, 583 N.W.2d 817. Whether the exhaustion of remedies requirement applies in each case “depends on a mixed bundle of considerations, ‘including, but not limited to, expertise of administrative bodies, statutory interpretation, pure questions of law, constitutional issues, discretionary authority of the courts, primary, concurrent, or exclusive jurisdiction, inadequacies of administrative bodies, etc.’” Id, (quoting Shark Bros., Inc. v, Cass Cty., 256 N.W.2d 701, 705 (N.D.1977)).

[¶ 38] Citing Werlinger v. Champion Healthcare Corp., 1999 ND 173, 598 N.W.2d 820, Vogel argues she is not required to exhaust administrative remedies before pursuing her claims in court because she has a private right of action and she is entitled to choose which remedy to pursue.

[¶ 39] In Werlinger, 1999 ND 173, ¶¶ 1-2, 56, 598 N.W.2d 820,' this Court reviewed a district court decision granting class certification under N.D.R.Civ.P. 23 in a suit to recover unpaid wages and overtime, liquidated damages, attorneys’ fees, and other costs. This Court considered that the Wage Collection Act provided administrative remedies through the Depart ment of Labor, but held the Act also provides an implied private right of action in addition to the administrative remedy, a private right of action was within the statutory scheme, and an individual has the option to proceed either by way of a private right of action or by way of the administrative scheme under the Act. Id. at ¶¶ 42-48.

[¶ 40] This case is different from Werlinger. Chapter 38-08, N.D.C.C., does not provide an implied private right of action for a violation of N.D.C.C. § 38-08-06.4; rather, it only provides an administrative remedy. ". Unlike the statutes at issue in Werlinger, -the- statutory provisions in this case do not provide an individual with a choice of remedies. Vogel is required to exhaust her administrative remedies before pursuing any claims in a court action. This is consistent with our prior case law. See e.g., Brown, 2006 ND 60, ¶ 16, 711 N.W.2d 194 (holding degree recipient’s failure to exhaust administrative remedies precluded him from making a claim in court);' Tracy, 1998 ND 12, ¶ 14, 574 N.W.2d 781 (holding teacher’s "claim for tortious interference with a contract was properly dismissed for lack of subject matter jurisdiction because teacher did-not exhaust administrative remedies); Long v. Samson, 1997 ND 174, ¶ 14, 568 N.W.2d 602 (holding professor was required to exhaust administrative remedies before bringing suit for contract and tort claims).

, [¶ 41] Vogel argues the administrative remedy is inadequate. To the extent she argues an exception to the exhaustion requirement applies, her argument is without merit. Vogel is seeking royalties for the gas flared in violation of N.D.C.C. § 38-08-06.4. Her claims for alleged damages are the type of claim the statute provides an administrative remedy. The Industrial Commission has authority to enforce N.D.C.C.' § 38-08-06.4 and determine the value of gas flared in violation for purposes of payment of royalties. N.D.C.C. § 38-08-06.4(5). An interested person may file a petition with the Industrial Commission when he or she believes there is á flaring violation of N.D.C.C. § 38-08-06.4 and royalty owners are enti-tléd to royalties bn the flared gas; théreaf-ter, the Industrial Commission is required to fix a date for a hearing, give notice, and enter an order within thirty days of the hearing. See N.D.C.C. § 38-08-11(4). A party adversely affected by the Industrial Commission’s order may apply for reconsideration or< may appeal to the district court. N.D.C.C. §§ 38-08-13 and 38-08-14. The statutes provide an adequate remedy for a royalty owner when gas is flared in violation of N.D.C.C. § 38-08-06.4. Furthermore, the Industrial Commission has expertise in determining whether there is a-violation and determining the value of the gas flared in violation. Pursuing the administrative remedy would likely resolve Vogel’s claims.

[¶ 42] Vogel is required to exhaust her administrative remedies prior to pursuing any claims she may have in court. We conclude the district court did not err in dismissing Vogel’s claims for lack of subject matter jurisdiction.

vni

[¶ 43] We conclude the district court did not err in dismissing Vogel’s claims under N.D.R.Civ.P. 12(b)(1)-and (6). We affirm the judgment.

[¶ 44] ■ DANIEL J. CROTHERS' and DALE V. SANDSTROM, JJ., concur. -