Meg Osswald (No. 16125)Fredric J. Donaldson (1.{o. 12076)Assistant Attorneys GeneralSean D. Reyes (No. 7969)Utah Attorney General1594 W. North Temple, Suite 300Salt Lake City, Utah 84116Tel: (801) 538-7227

Attorneys þr Utah Division of Oil, Gas and Mining

FILEDJAN I 0 2017

SECRETARY BOARD OF

OIL, GAS & MINING

BEFORE THE UTAH BOARD OF OIL, GAS AND MINING

IN THE MATTER OF THE REQUESTFOR AGENCY ACTION OF TARIQAHMAD CHALLENGING CEKTAINNOTICES OF VIOLATION ISSUED BYTHE DIVISION OF OIL, GAS &MINING.

THE UTAH DIVISION OF OIL, GAS ANDMINING'S MOTION TO DISMISS

Docket No. 2017-003

Cause No. 283-01

The Utah Division of Oil, Gas and Mining (the "Division") respectfully submits the

following Motion to Dismiss in response to the letters submitted by Mr. Tariq Ahmad to the

Board of Oil, Gas and Mining (the "Board") which the Board has allowed to be filed and

considered as a Request for Agency Action (the "Request"). The Division asks that the Request

be dismissed for two reasons. First, Mr. Ahmad claims violations of his civil rights, and the

Board does not have subject matter jurisdiction over such claims. Second, to the extent the letters

can be construed to question the Division's application of the oil and gas statutes and regulations,

the letters fail to identify a particular omission or effor by the Division and otherwise fail to

comply with the procedural rules of the Board outlined in the Utah Administrative Code. The

Request does not state what relief is requested from the Board, nor does it provide legal authority

for the Board's jurisdiction or legal authority for a substantive claim itself as required by the

Board's procedural rules. Furthermore, questions concerning the Division's application of oil

and gas statutes and regulations are claims of the companies that are the operators, not of Mr.

Ahmad, and therefore must be filed by counsel.

If the Board does not dismiss petitioner's claim, the Division asks that Mr. Ahmed or the

affected entities be required to obtain counsel and file an amended request outlining the Board's

jurisdiction, legal authority for the claims, and the relief requested from the Board.

Concurrently with this Motion, the Division is filing a Memorandum in Support of its

Motion to Dismiss that more fully sets forth the Division's bases for its Motion.

Respectfully submitted on the 10th day of January 2017.

Ures Oprrce ArroRNpv GeNeRRI-

MegFredric J. DonaldsonAssistant Attorneys GeneralTel: (801) 538-7227Em ail : mo sswald@utah. gov

freddonaldson@utah. gov

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Meg Osswald (No. 16125)Fredric J. Donaldson (No. 12076)Assistant Attorneys GeneralSean D. Reyes (No. 7969)Utah Attorney General1594 W. North Temple, Suite 300Salt Lake city, utah 84116Tel: (801) 538-7227

Attorneysfor Utah Division of Oil, Gas and Mining

FILEDJAN I 0 2017

SECRETARY BOARD OFOIL, GAS & MINING

BEFORE THE UTAH BOARD OF OIL, GAS AND MINING

IN THE MATTER OF THE REQUESTFOR AGENCY ACTION OF TARIQAHMAD CHALLENGING CEKTAINNOTICES OF VIOLATION ISSUEDBY THE DIVISION OF OIL, GAS &MINING.

MEMORANDUM IN SUPPORT OF THEUTAH DIVISION OF OIL, GAS ANDMINING'S MOTION TO DISMISS

Docket No. 2017-003

Cause No. 283-01

The Division of Oil, Gas and Mining (the "Division") hereby files this Memorandum in

Support of its Motion to Dismiss the above entitled Request for Agency Action ("Request") of

Tariq Ahmad. This Memorandum outlines the substantive and procedural deficiencies in Mr.

Ahmad's Request and asks the Board to dismiss Mr. Ahmad's claims or, alternatively, to require

that Mr. Ahmad file a more definite and complete request through counsel as required by the

Rules.

BACKGROUND

Mr. Ahmad's Request concems his interactions with the Division on behalf of two oil

companies for which he is a company representative-Pacific Energy and Mining Company

("Pacific") and Mar/Reg Oil Comparty ("MarlReg") (collectively "the Companies"). Mr.Ahmad

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claims that the Division has violated his civil rights by issuing Notices of Violation and directive

letters to the Companies that he believes were not justified by violations of Utah Code Title 40

and corresponding regulations, but rather based on discriminatory bias against him personally.

On May 27,2016, Mr. Ahmad wrote a letter to the Board Secretary requesting a hearing

to address the Division's alleged discrimination. Specifically, the letter outlined an alleged

history of discrimination against Mr. Ahmad by Division staff. Mr. Ahmad claimed that

Division Inspector Bart Kettle made false accusations against him, and eventually issued a

Notice of Violation ("NOV") in May 2016 based on those false accusations.

Mr. Ahmad also alleged that Division employees John Rogers and Dustin Doucet, as well

as Assistant Attorney General Steve Alder, ordered him to wire $250,000 to a drilling contractor

who Mr. Ahmad alleged is friends with Bart Kettle. Mr. Ahmad also alleged that the drilling

contractor created false invoices that were somehow connected to the Division. Mr. Ahmad also

accused the Division of discriminatory behavior for addressing correspondence conceming

Pacific Energy to him, rather than the president, for ordering him to open a pipeline when it has

not ordered other companies to do so, and for allegedly calling him a liar. Ultimately, Mr.

Ahmad concluded that the Division's alleged disparity in how it treated him relative to other

operators amounts to racial and religious discrimination that he requests a Board Hearing to

address. The letter lacked any factual support for the allegations, and the Division has denies that

there are facts that support the claims.

The Board, through its counsel, advised Mr. Ahmad by letter on September 7,2016 that

it did not have jurisdiction to hear and address complaints regarding discrimination alleged by

Mr. Ahmad. Specifically, the letter advised Mr. Ahmad that actions of Division employees are

not within the jurisdiction of the Board to review, and that the Board's jurisdiction was limited to

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specific violations of oil, gas, and mining statutes and rules. In response, Mr. Ahmad wrote a

second letter on September 15,2016 in which Mr. Ahmad again alleged civil rights violations by

Division employees and referred to NOVs and other actions by the Division against the

companies. His letter did not specifically set out the facts surrounding alleged the

discrimination, the error by the Division, or the remedy sought from the Board. The Board

allowed the letters to be filed as a Request for Agency Action and included the Request on the

docket for its January 2016 hearing.

The Division has filed its Motion to Dismiss and this Memorandum in Support in

response to Mr. Ahmad's letters, which ask the Board to dismiss his Request without a hearing.

Alternatively, the Division asks the Board to require Mr. Ahmad to file a proper request that

specihcally outlines his allegations, such that the Division and the Board have sufficient

information to properly respond.

ARGUMENT

I. TARIQ AHMAD'S REQUEST SHOULD BE DISMISSED FOR FAILURE TOSTATE A CLAIM, LACK OF SUBJECT MATER JURISDICTION, ANDFAILURE TO FOLLOW THE BOARDNS PROCEDURAL RULES.

The Board should dismiss Mr. Ahamad's Request because it does not provide adequate

information to state a claim, does not concern subject matter over which the Board has

jurisdiction, and fails to follow the Board's procedural rules. The Oil and Gas Conservation Act

(the "Act") provides that the Board has jurisdiction over all persons necessary to enforce the Act

and to adopt rules as necessary to address specific provisions identified in the Act. Utah Code $$

40-6-4 and 5 (2016). Among the rules adopted are the Procedural Rules of the Board that outline

specific procedures that the Board and parties seeking a hearing before the Board must follow.

Utah Admin. Code R641-100 through 119. Thus, the Act and corresponding rules outline what

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the Board has the power to address and how the Board, and parties appearing before it, should

address those specific matters.

In this case, Mr. Ahmad's Request should be dismissed because A) it fails to provide

sufficient facts and legal basis to state a claim on which relief could be granted; B) the Board

lacks subject matter jurisdiction because the Request, even when read with a generous degree of

deference, continues to ask the Board to address allegations ofpersonal prejudice, and does not

allege violations of a specific statute or rule related to oil and gas production or extraction that

are within the jurisdiction of the Board; C) the Request is untimely; and D) the Request fails to

comply with the Board's procedural rules.

A. A Board hearing is not proner to address Mr. Ahmad's Request because Mr.Ahmad's letters fail to provide facts or legal authority necessary to state a claim.

Mr. Ahmad's Request should be dismissed without a hearing because the Request lacks

sufficient factual information and legal basis to state a claim, making it impossible for the Board

or the Division to prepare for a hearing or respond to the merits of the Request. The Board's

procedural rules require that Requests for Agency Action include a statement of legal authority

and jurisdiction under which the Board action is requested, a statement of relief sought, and facts

and reasons forming the basis of relief. Utah Admin. Code R. 641-104-133. Moreover, the

petitioner has the burden of proof to set forth facts and law relevant to the relief requested when

seeking a review of a Division decision . Southern Utah Wilderness Alliance v. Division of Oil,

Gas, and Mining, Docket No 2001-027, Cause No. C/007/013-SR98(1) at 3 (Dec. 2001). In the

administrative context, petitioners must not only provide facts sufficient to state a claim, the

petitioner must also show that the Division's administrative decisions were uffeasonable,

arbitrary, or contrary to law. Id; see qlsoUtah Code $ 40-10-30(3). The Utah Rules of Civil

Procedure also require petitioners to state a claim with enough specificity to make the court and

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the defendant aware of what allegations petitioner is making. Rusk v. University of Utah

Healthcare, 2016 UT App. 2ß n 5-7 (holding that oÎague and conclusory terms," which merely

state elements of claimed causes of action were insufficient meet petitioner's burden, and that

under the Utah Rules of Civil Procedure requiring a statement of a claim, the court or defendants

were not required to review extraneous materials to "identify facts to support a plaintiff s legal

theories.").

Here, Mr. Ahmad does not specify the facts on which he bases his claim with sufficient

clarity. Mr. Ahmad's letters state that the Division has engaged in generally discriminatory

behavior. The Board's letter through counsel to Mr. Ahmad informed him that it only has

jurisdiction to address specific regulatory actions by the Division. Mr. Ahmad addresses some

specifics when he discusses NOVs issued by the Division, but does not clearly state how the

NOVs could be considered improper. Specifically, Mr. Ahmad alleges that a 2014 NOV was

improperly issued but does not specify what the NOV was issued for. He also alleges that a May

27,2016 was improperly issued for oil in a cellar because he did not find any oil when he visited

the well. The NOV that the Division issued (on May 25) for oil in a cellar required only that the

operator correct the problem. The NOV did not deprive the company of any resources, permits,

or otherwise result in unfair treatment. All of the NOVs issued by the Division provided a

statutory or regulatory basis for the violation alleged. Thus, the lack of factual information in Mr

Ahmad's letters leaves the Division and the Board in the dark about which Division actions he is

calling into question, what rights he was deprived of, or what relief he is seeking.

Mr. Ahmad also fails to provide legal authority for the merits of his claim, in that his

letters fail to explain what rules or statutes were not properly applied and why. There is no

question that the Division has been delegated authority to inspect the operations to assure

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compliance with the rules established by the board. Mr. Ahmad's letters fail to explain how the

Division violated a rule or statute or improperly applied it in the specific instances in question.

In addition, the letters fail to set forth the legal remedy that he is asking the Board to provide. He

asks only for a Board hearing to "address the issue of discrimination" against him by Division

employees.

In order to properly respond to his Request, the Board and the Division need legal and

factual information required by the Act and corresponding regulations but not provided by Mr.

Ahmad. General claims of prejudice do not satisfy the regulatory requirements with good reason

because the Division cannot address potential issues or provide a defense without facts and

reasons that justify relief. Likewise, the Division cannot provide a defense to all possible

arguments that might exist to invalidate an NOV and does not legally have the burden of proof to

do so. Unlike a procedural error that could be easily resolved and does not affect the Division's

ability to respond to a Petitioner's claims, the lack of information provided by Mr. Ahmad

completely inhibits the Division's ability to respond to potentially serious claims concerning

employee behavior. Likewise, the lack of information provided concerning jurisdiction, legal

basis, or requested relief prevents the Board from providing relief.

Thus, the Request does not properly equip Division and the Board to respond, and the

Board should dismiss the Request. The Board should not permit the hearing to go forward on the

basis of the documents f,rled and should not permit Mr. Ahmad to ask questions of the Division's

employees to try and establish a claim that he has failed to plead. Such a fishing expedition

would be an opportunity for baseless accusations and would not be productive in light of the

unsupported allegations and failure to cite applicable legal defects with specificity.

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B. The Board lacks subiect matter iurisdiction over Mr. Ahmad's discriminationclaim because it does not concern oil and gas operations, statutes. or rules.

Mr. Ahmad's claim is improper because it asks the Board to determine whether his civil

rights have been violated, not whether he or the Division are in violation of statutes and rules

relating to oil, gas, and mining. Under Utah Code $ 40-6-5 the Board has jurisdiction over

persons and property necessary to enforce the Act. Specifically, the Board has authority to

regulate operations related to the production of oil and gas, spacing of wells, operations to

increase recovery, disposal of oil field wastes, storage of oil, gas, or related products, and flaring.

Utah Code $ 40-6-5(3). Utah Code $ 40-6-5 also requires the Board to create rules to administer

the Act. For oil and gas; those rules are found in Titles R641 and R649. The Division is

required to implement policies and orders of the Board and perform duties delegated by the

Board. Id. S 40-6-15. The Board's counsel informed Mr. Ahmad of these restraints on its

jurisdiction in the September 7,2016letter. .

Mr. Ahmad alleged that because actions done "under the cover of the Division" or by

Division employees amounted to civil rights violations, the Board has jurisdiction to investigate

his civil rights claims. However, the Act does not give the Board jurisdiction over actions of

Division employees not related to the oil, gas, and mining matters listed in Section 40-6-5, and

consequently, does not give the Board jurisdiction over civil rights claims. Rather, the

legislature limited the Board's jurisdiction and authority to specific matters related to oil, gas,

and mining. Thus, a hearing before the Board concerning the legal merits of Mr. Ahmad's

discrimination claims is not proper. Because the Board lacks jurisdiction to hear the claims, it

should dismiss Mr. Ahmad's Request without a hearing.

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C. The Board lacks iurisdiction to consider Mr. Ahmadts claims hecause thev werenot filed within the time required.

Even if the Request attacked the validity of a Division order, rather than making a civil

rights claim, only the April 28,2016 NOV issued to Mar/Reg and the ll4ay 25,2016 NOV issued

to Pacific have the potential to be reviewable because the statute of limitations as set by the

Board is 30 days. Utah Admin. Code R. 649-10-6.1. Under Utah Administrative Code R649-10-

6, requests for review of Division orders "shall be filed with the secretary to the Board within 30

days of issuance of the order . . ." Id.

Mr. Ahmad's first letter to the Board Secretary is dated May 27,2016 and was received

May 31,2016. The NOVs issued most recently before Mr. Ahmad's letter \ryere served on April

28,2016 and May 25,2016. Therefore, the complaints in Mr. Ahmad's letter concerning money

wiring, pipeline opening, and a years-long history of personal attacks/discrimination are

untimely. Further, the claim related to the April23 NOV is timely only if R649-10-6.1 is

interpreted broadly, because Mr. Ahmad's letter may have been written within the 30 day time

limit, but was not received by the Board secretary until more than 30 days after the NOV was

issued. Mr. Ahmad's letter does not address the April2016 NOV, thus, a future claim

concerning that NOV would also be untimely.

Additionally, because Mr. Ahmad did not file a claim according to the prescribed format,

and only sent a letter, considering the letter as a filing within the 30 day time period also requires

broad interpretation of the 30 day time limit. In all, without a broad interpretation of the filing

deadline, and the contents of a sufficient filing, Mr. Ahmad's request is untimely. Even if the

Board chooses to adopt a broad reading of the Rule, only the May 25 NOVs should be

considered.

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D. Mr. Ahmad's Reouest fails to comnlv nrocedural rules that must sovernBoard hearings.

If there is reviewable claim based on an NOV issued to one of the Companies, that claim

should still be dismissed because Mr. Ahmad failed to comply with the Board's procedural rules

in that he is not represented by an attorney licensed to practice law in the state of Utah. Utah

Administrative Code Rules 641-102 through 106 outline the administrative procedures required

to initiate a Board hearing. Specifically, the Rules describe appearance and representation

requirements, content of pleadings, filing requirements, service requirements, and notice

requirements.

Under Utah Administrative Code Rule R641-102-200, except as provided in 641-102-100

which allows a natural person to appear on his or her own behall "representation at hearings

before the Board will be by attorneys licensed to practice law in the state of Utah. . ." Here,

because the NOVs were issued to Mar/Reg and Pacific, if Mr. Ahmad is requesting the Board to

review the substance or merit of an NOV, the Companies must be represented by counsel. If Mr.

Ahmad is not requesting review of an NOV issued to one of the Companies, his Request

concerns subject matter over which the Board does not have jurisdiction.

Thus, if Mr. Ahmad's Request is not dismissed for lack ofjurisdiction or untimeliness, it

should be dismissed for failure to comply with procedural rules, or, in the alternative, he should

be required to amend and submit a new request that does comply with the Rules.

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CONCLUSION

In sum, Mr. Ahmad's Request should be dismissed. Mr. Ahmad fails to state a claim with

enough specificity to allow the Board or the Division to respond. Furthermore, the Board lacks

jurisdiction because Mr. Ahmad requests review of personal discrimination claims, not a

regulatory action by the Division. To the extent that any claims might be within the Board's

purview, Mr. Ahmad's request is untimely because, with the possible exception of one NOV, his

complained of actions are outside the 30 day statute of limitations. Last, Mr. Ahmad failed to

comply with the procedural requirements to request a Board hearing in that the companies are

not represented by counsel. Thus, Mr. Ahmad's Request should be dismissed. In the altemative,

he should be required to amend his Request, if he can, to set forth facts to show the Division

contradicted oil and gas statues or rules in issuing the NOV.

Respectfully submitted on the lOth day of January,2017

Fredric JAssistant Attorneys GeneralTel: (801) 538-7227Email: mosswald@utah.gov

freddonaldson@utah. gov

Attorneysfor the Division of Oil, Gas and Mining

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Addresses Required by Rule

Utah Board of Oil, Gas and Mining:Ruland J Gill, Jr.Chairman of the BoardBoard of Oil, Gas and Mining1594 V/est North Temple, Suite 3710Salt Lake City, Utah 84114-5610(801) 538-7200

Utah Division of Oil, Gas and Mining:John R. BazaDivision DirectorDivision of Oil, Gas and Mining1594 West North Temple, Suite 3710Salt Lake City, Utah 84114-5610(801) s38-7200

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I certify that I caused to be served the above Motion to Dismiss and Memorandum inil

Support to the following parties on the l/ y' auy of January, 2017.

By email and mail:

Mr. Tariq Ahmad13495 South Hills DriveReno,NV 89511taroil@yahoo.com

By mail:

Mar/Reg Oil CompanyP.O. Box 18148Reno, NV 89511

Mar/Reg Oil Company1108 E. South Union AveMidvale, UT 841074

Pacific Energy and Mining Companyl7 V/est Main St.

P.O. Box 149

Green River, UT 84525

CERTIFICATE OF SERVICE

X

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