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BAHA Petroleum Consulting Corp. v. Job Service North Dakota

Supreme Court of North Dakota

August 11, 2015

BAHA Petroleum Consulting Corp., Petitioner and Appellant
v.
Job Service North Dakota, Respondent and Appellee

Page 357

Appeal from the District Court of Williams County, Northwest Judicial District, the Honorable Paul W. Jacobson, Judge.

Patricia R. Monson, Fargo, N.D., for petitioner and appellant.

Michael T. Pitcher, Assistant Attorney General, Bismarck, N.D., for respondent and appellee.

Jacob T. Haseman, Theodore D. Standage, and Stephen T. Throne, Sheridan, WY, for amicus curiae American Association of Professional Landmen.

Lisa Fair McEvers, Carol Ronning Kapsner, Dale V. Sandstrom, Daniel J. Crothers, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice.

OPINION

Page 358

McEvers, Justice.

[¶1] BAHA Petroleum Consulting Corp. appeals from a judgment affirming a decision by Job Service North Dakota tat landmen performed services for BAHA as employees rather than independent contractors. Because Job Service's findings of fact are supported by a preponderance of the evidence and its conclusions of law are supported by those findings, we affirm the judgment.

I

[¶2] BAHA is in the business of providing various services to oil and gas companies, including referrals of individuals to perform landman services. The general responsibilities of landmen include acquiring mineral and surface rights from landowners, negotiating leases, researching public and private records to determine ownership of mineral rights, and reviewing the status of titles. In April 2013, Job Service conducted an audit of BAHA and in June 2013 issued a notice of determination, informing BAHA that its landmen were employees rather than independent contractors and that BAHA was liable for unemployment insurance taxes on compensation paid to its landmen.

[¶3] BAHA appealed the determination, and a hearing was held before a Job Service appeals referee. Brad Hingtgen, a landman and co-owner of BAHA, and Brett Brothers, also a landman, testified on behalf of BAHA. The referee affirmed Job Service's initial determination, finding the landmen were employees of BAHA rather than independent contractors. Job Service denied review of the referee's decision under N.D.C.C. § 52-06-19, and the district court affirmed Job Service's decision.

II

[¶4] BAHA argues Job Service erred in determining its landmen were employees rather than independent contractors.

[¶5] When an administrative agency's decision is appealed from district court, we review the agency's decision and the record before the agency in the same manner as the district court reviewed the decision. Bleick v. North Dakota Dep't of Human Servs., 2015 ND 63, ¶ 10, 861 N.W.2d 138. We must affirm the agency's decision unless:

Page 359

1. The order is not in accordance with the law.

2. The order is in violation of the constitutional rights of the appellant.

3. The provisions of this chapter have not been complied with in the proceedings before the agency.
4. The rules or procedure of the agency have not afforded the appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported by its findings of fact.
7. The findings of fact made by the agency do not sufficiently address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently explain the agency's rationale for not adopting any contrary recommendations by a ...

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