Wood v. Simmers

[Cite as Wood v. Simmers, 2019-Ohio-4440.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Donald E. Wood, :

Appellant-Appellant, :

No. 19AP-275

v. : (C.P.C. No. 18CV-9845)

Richard J. Simmers, Chief, : (ACCELERATED CALENDAR)

Ohio Division of Oil & Gas

Resources Management, :

Appellee-Appellee. :

D E C I S I O N

Rendered on October 29, 2019

On brief: Donald E. Wood, pro se. Argued: Donald E. Wood.

On brief: Dave Yost, Attorney General, Gene D. Park, and

Jacquelyn Fisher, for appellee. Argued: Gene D. Park.

APPEAL from the Franklin County Court of Common Pleas

NELSON, J.

{¶ 1} We find this a straightforward case because even in the unlikely circumstance

that "may" in the relevant statutory section could be read properly to mean "shall," the use

of the word "will" in a related administrative code provision could not sensibly mean "will

(or shall, or may) not."

{¶ 2} Donald E. Wood, a lawyer as well as an owner/operator of 16 oil and gas wells

in Ohio, wants to mount an argument that in the context of the particular regulatory scheme

requiring well owners to provide a surety bond or cash deposit to ensure compliance with

land restoration and related environmental rules, see R.C. 1509.07(B)(1) and (2), the

statutory grant of authority to the chief of the department of natural resource's division of

oil and gas management to accept a net financial worth statement in lieu of such bond or

cash deposit ("[i]nstead of a surety bond, the chief may accept proof of financial

No. 19AP-275 2

responsibility consisting of a sworn financial statement showing a net financial worth

within this state equal to twice the amount of the bond for which it substitutes * * *"),

R.C. 1509.07(B)(3), creates a mandatory obligation for the chief to accept such a financial

statement and precludes the chief from requiring a bond or cash. Here, "may" means

"shall," Mr. Wood submits: "use of the word 'may' in the statute does not give the [chief]

discretion to reject financial statements as proof of financial responsibility." Appellant's

Brief at 18.

{¶ 3} But apart from the dubious merits of Mr. Wood's rejection of any distinction

here between "may" and "shall" (even in a statutory section that uses "shall" in some

contexts and "may" in others, compare, e.g., R.C. 1509.07(A)(1) ("an owner of any well * * *

shall obtain liability insurance coverage"); (A)(2) ("shall obtain" coverage that "shall

include" coverage available for an environmental endorsement); (A)(3) ("shall maintain"

and "shall provide" proof of coverage until wells plugged); and (B)(1) (except as otherwise

provided, owner "shall execute and file" surety bond conditioned on compliance with

restoration and plugging requirements), with (B)(2) (owner "may deposit with the chief,

instead of a surety bond, cash in an amount equal to the surety bond * * * or negotiable

certificates of deposit or irrevocable letters of credit," and chief "shall deliver them to the

secretary of state"); (B)(3) ("[i]nstead of a surety bond, the chief may accept" a sworn

financial statement meeting certain specifications)), Mr. Wood fails to contend adequately

with the question of what happens when a well owner does not timely submit an annual

financial statement, even when reminded to do so and given additional time.

{¶ 4} As it happens, Ohio has an administrative code provision for that. Ohio

Admin.Code 1501:9-1-03(F) relates to sworn financial statements that "may be accepted in

lieu of a surety bond, [etc.]" for non-domestic well owners (like Mr. Wood) "for whom the

chief has accepted a sworn financial statement prior to January 1, 1993." Each such owner

"shall demonstrate financial responsibility annually" on a schedule established by the

division of oil and gas management. Ohio Admin.Code 1501:9-1-03(F)(2)(a). And the

"[f]ailure of an owner to demonstrate financial responsibility as required" under that

regulatory subsection "will result in an order by the chief requiring a surety bond, certificate

of deposit, or cash bond in the amount of bond required. If the order is not complied with,

the owner will receive an order by the chief requiring the plugging of all wells of the owner."

Ohio Admin.Code 1501:9-1-03(F)(2)(f)(i) (emphasis added).

No. 19AP-275 3

{¶ 5} Because that is what happened here—that is, because Mr. Wood, who

previously had been permitted to file financial statements, did not file his annual statement

of financial responsibility as due in 2014—even after the division prompted him to do so

and accorded him additional months to make such a filing—the chief issued an order

requiring him to provide a surety bond, certificate of deposit, or cash bond in the amount

of bond required, or to plug his wells or transfer them to an owner who would comply with

Ohio's environmental regulations in this regard.

{¶ 6} Mr. Wood appealed that order to Ohio's Oil and Gas commission, which

affirmed it, and he then appealed that determination to the court of common pleas pursuant

to R.C. 1509.37. The common pleas court upheld the commission order as lawful and

reasonable, and Mr. Wood now has turned to us. We will affirm the judgment of the

common pleas court, which did not abuse its discretion in finding that the commission

acted in accordance with law based on the facts. "When the financial statement is not

submitted, Ohio Admin.Code 1501:9-1-03(F)2)(f)(i) authorizes [indeed, we would say it

requires] the order requiring the filing of a surety bond, certificate of deposit, or cash bond."

April 11, 2019 Decision and Judgment Entry Affirming the Order of the Ohio Oil & Gas

Commission, at 6; see also id. at 9.

{¶ 7} The decision of the common pleas court describes this matter in some detail;

we provide a thumbnail sketch, and need not rehearse here the only tangentially related,

ill-fated efforts by Mr. Wood to have the commission certify a class as discussed in Wood v.

Simmers, 10th Dist. No. 17AP-269, 2017-Ohio-8718 ("Wood I"), or to overturn the chief's

order through a declaratory judgment action filed in and then appropriately dismissed by

the court of claims, see Wood v. Div. of Oil & Gas Resources Mgt., 10th Dist. No. 18AP-470,

2018-Ohio-4968 ("Wood II").

{¶ 8} The uncontested record reflects that Mr. Wood, in lieu of a surety bond,

submitted sworn financial statements in somewhat desultory fashion between 1986 and

2013. "Mr. Wood did not file or update his financial statements on a yearly basis. Rather,

it appears that Mr. Wood usually updated his statements only when prompted by the

Division." October 29, 2018 Findings, Conclusions & Order of the Commission at 5.

Although he filed such a statement on November 21, 2013, he did not file in 2014. "In

January of 2015, the Division mailed to Mr. Wood a letter reminding him of his annual

obligation to file or update his financial statement. This letter gave Mr. Wood 60 days to

No. 19AP-275 4

file an updated financial statement or to request an extension of this deadline." Id. at 2.

"Mr. Wood did not file an updated financial statement during the approximately six-month

period after he was notified in January 2015 of his obligation to submit an updated financial

statement." Id. at 3; see also Decision and Judgment Entry at 1 ("Mr. Wood did not submit

a financial statement within 60 days [of the January 2015 letter] or request an extension of

time").

{¶ 9} Consequently, on July 7, 2015, Richard Simmers, chief of the department's

division of oil and gas resources management, issued an order directing that within 30 days

Mr. Wood "[e]xecute and file a surety bond, certificate of deposit, irrevocable letter of

credit, cash or cashier's check with the Division, as required by R.C. 1509.07(B)," or plug

and abandon his wells or transfer them to another owner. July 7, 2015, Chief's Order at 2.

It was not until after the chief's order issued that, on or about July 17, 2015, Mr. Wood

submitted an updated financial statement; the division did not accept that submission

because it was untimely and "not a compliance option under [the] outstanding Chief's

Order." October 29, 2018, Commission Findings at 3.

{¶ 10} Mr. Wood then appealed the chief's order to the commission, which in its

conclusions of law determined: "The Chief's application of the provisions of O.A.C. §1501:9-

1-03(F)(2)(f)(i) where a well owner fails to comply with the annual filing obligation of

O.A.C. §1501:9-1-03(F)(2)(a) is not unlawful, and indeed is mandated under the language

of O.A.C. §1501:9-1-03(F)(2)(f)(i) [reciting that failure to provide information required for

financial statements 'will result in an order by the chief requiring a surety bond, certificate

of deposit, or cash bond in the amount of bond required']." Id. at 10, conclusion 5. The

commission affirmed the chief's order, noting that application of the administrative code

provision "is not unreasonable, particularly where the well owner has been informed of his

annual filing obligation and has been provided with more than adequate time to come into

compliance with this obligation." Id. at 10, conclusion 6; see also conclusion 7.

{¶ 11} The common pleas court, in turn, upheld the commission's order as lawful

and reasonable. The court carefully reviewed the regulatory regime, noting the statutory

mandate that " '[e]xcept as otherwise provided in this section, an owner of any well * * *

shall execute and file with the division * * * a surety bond conditioned on compliance' with

the specified environmental requirements." Decision and Judgment Entry at 2, quoting

R.C. 1509.07(B)(1). As the common pleas court further recited, the statute does provide the

No. 19AP-275 5

owner with an alternative: he or she " 'may deposit with the chief, instead of a surety bond,

cash in an amount equal to the surety bond.' " Id., quoting R.C. 1509.07(B)(2). And the

chief of the division may allow (but not require) another alternative: " 'Instead of a surety

bond, the chief may accept proof of financial responsibility consisting of a sworn financial

statement showing a net financial worth within this state equal to twice the amount of the

bond for which it substitutes * * * .' " Id. at 3, quoting R.C. 1509.07(B)(3). Declining to

rewrite the statute to say that the chief "must" accept financial statements as proof of

financial responsibility, id. at 4, the common pleas court concluded that "the Commission

properly found that the Chief has discretion as to whether to accept a financial statement

as proof of financial assurance." Id. at 4, 5.

{¶ 12} The common pleas court further noted that the Ohio Administrative Code

provides that for financial statements "accepted in lieu of a surety bond * * * for non-

domestic well owners for whom the chief has accepted a sworn financial statement prior to

January 1, 1993," Ohio Admin.Code 1501:9-1-03(F), "[t]he annual obligation to file

financial statements is set forth in Ohio Admin. Code 1501:9-1-03(F)(2)(a)." Decision and

Judgment Entry at 6. "When the financial statement is not submitted, Ohio Admin.Code

1501:9-1-03(F)(2)(f)(i) authorizes the order requiring the filing of a surety bond, certificate

of deposit, or cash bond." Id. The decision then proceeded to distinguish two earlier

commission decisions that found the chief had "unreasonably refused to accept financial

statements" that "appear to have been timely filed, but were rejected for no good cause."

Id. at 7.

{¶ 13} Then observing that estoppel does not run against the state, the common

pleas court found that any previous failure by the chief to enforce its rule with regard to Mr.

Wood would "not preclude the Division from enforcing the rule [on what to do when a

financial statement is not submitted] now." Id. at 8. The court also noted that Mr. Wood

had provided no authority for the propositions that his court appeals in Wood I and Wood

II should have prevented the commission from proceeding as it did, or that he thereby was

prejudiced. Id. at 9. Requiring him to suspend well operations was appropriate under the

relevant provisions of the statute and administrative code. Id. And Mr. Wood's request for

subpoena of a particular witness came late and the commission's denial caused him no

prejudice, the common pleas court held. Id. at 9-10.

No. 19AP-275 6

{¶ 14} Now appealing to us the trial court's determination that the commission's

order of October 29, 2018 affirming the chief's order dated July 7, 2015 was lawful and

reasonable, Mr. Wood posits four assignments of error:

[1.] The common pleas court erred when it stated that use of

the word "may" in the statute means that the chief has the

option or discretion to accept financial statements as proof of

financial responsibility.

[2.] The common pleas court erred when it failed to comply

with the provisions of O.R.C. §1.49 in reaching its decision.

[3.] The common pleas court erred when it found that the

commission's order affirming Chief's Order 2015-345 is both

lawful and reasonable.

[4.] The common pleas court erred when it interpreted Ohio

Administrative Code 1501:9-1-03(F)(2)(f)(i) as permitting the

appellee to issue an order forever barring an owner from

submitting a financial statement as proof of financial

responsibility.

Appellant's Brief at 17, 26, 28, 31.

{¶ 15} As we had occasion to note in Wood I, the common pleas court reviews a

commission order to determine whether it was "reasonable and lawful." 2017-Ohio-8718

at ¶ 12, quoting Simmers v. N. Royalton, 10th Dist. No. 15AP-900, 2016-Ohio-3036, ¶ 21

(further citations omitted). An order is not "reasonable" if it " 'is not in accordance with

reason, or * * * has no factual foundation,' " and it is not "lawful" if it doesn't accord with

the law. Wood I at ¶ 12, quoting Johnson v. Kell, 89 Ohio App.3d 623, 626 (10th Dist.1993).

Our review, in turn, of the common pleas court decision " 'is more limited' "; we determine

" 'only [whether] the trial court has abused its discretion' " through " 'perversity of will,

passion, prejudice, partiality, or moral delinquency,' " absent which error we " 'must affirm

the trial court's judgment.' " Wood I at ¶ 13, quoting Gemini Energy, Inc. v. Div. of Mineral

Resources Mgt., 10th Dist. No. 06AP-633, 2007-Ohio-5091, ¶ 9 (internal and other

citations omitted). " 'On questions of law, however, the court of appeals' review is plenary.' "

Id.

{¶ 16} Under each of his first two assignments of error, Mr. Wood argues that the

common pleas court (and the commission before it) misconstrued the language of R.C.

1509.07(B)(3)—providing that "[i]nstead of a surety bond, the chief may accept proof of

No. 19AP-275 7

financial responsibility consisting of a sworn financial statement * * *"—to vest some

discretion in the chief as to whether to accept a financial statement in place of a surety bond.

Mr. Wood cites to an early 1993 common pleas court decision that upheld a decision of the

Oil and Gas Board of Review requiring the chief to accept one company's financial

statement as sufficient proof of financial responsibility, and to another Board of Review

decision of the same vintage and to the same effect, in suggesting that the statutory

language can "be subject to various interpretations" and that "[i]t is sometimes necessary

to give the words 'may' and 'shall' as used in a statue, meanings different than [sic] those

given them in ordinary usage. Dorrian v. Scioto Conservancy District, 27 Ohio St.2d 102,

107 (1971)" (citations omitted). Appellant's Brief at 18-19, citing Pepper Oil Co. v. Mason,

Franklin C.P. No. 92CVF08-6530 (February 24, 1993), and Valley View Golf Club, Inc. v.

Mason, Appeal No. 437, Board of Oil and Gas Review (July 24, 1992).

{¶ 17} But Dorrian as cited by Mr. Wood hardly seems to support the proposition

that "may" here means something other than it ordinarily does. There the Supreme Court

of Ohio emphasized that "statutory use of the word 'may' is generally construed to make the

provision in which it is contained optional, permissive, or discretionary, at least where there

is nothing in the language or in the sense or policy of the provision to require an unusual

interpretation." 27 Ohio St.2d at 107 (citations omitted, and adding that "[t]he word 'shall'

is usually interpreted to make the provision in which it is contained mandatory"). Indeed,

the court continued, "[o]rdinarily, the words 'shall' and 'may,' when used in statutes, are

not used interchangeably or synonymously." Id., citing State ex rel. Wendling Bros. Co. v.

Bd. of Edn., 127 Ohio St. 336 (1933). In fact, the Supreme Court said, for "may" and "shall"

to be construed "to have the meaning of the other," necessarily "the intention of the General

Assembly that they shall be so construed must clearly appear from a general view of the

statute under consideration." 27 Ohio St.2d at 108 (then holding that the statutes

considered there showed "no clear intent of the General Assembly that the word 'may,' as

contained therein, be construed as mandatory rather than permissive, its usual statutory

meaning").

{¶ 18} Of course, the legislature can use words to have any meaning it defines them

to have, either explicitly or as plainly infused by context, but when it seeks to use a word

idiosyncratically, that "clear intent" itself will be expressed through statutory language. See

also, e.g., State ex rel. Turner v. Eberlin, 117 Ohio St.3d 381, 2008-Ohio-1117, ¶ 14, quoting

No. 19AP-275 8

Morning View Care Ctr.-Fulton v. Dept. of Human Servs., 148 Ohio App.3d 518, 2002-

Ohio-2878, ¶ 36 (10th Dist.)) (" 'The interpretation of statutes and administrative rules

should follow the principle that neither is to be construed in any way other than as the

words demand.' We must read undefined words and phrases in context and construe them

in accordance with rules of grammar and common usage").

{¶ 19} And here, especially given the multiple and apparently considered uses of

both "may" and "shall" within the statutory section, as noted in paragraph 3 above, we see

no sign that the General Assembly employed those common and legally significant words

indiscriminately. Again, as Dorrian and Wendling Bros. Co. confirm, they are not

customarily used in statutes "interchangeably or synonymously." Moreover, as we have

noted, " '[g]enerally in interpreting a statute or a contract, we presume that the use of

different words indicates an intention that the words possess different meanings.' " Dublin

v. Friedman, 10th Dist. No. 16AP-516, 2017-Ohio-9127, ¶ 43, quoting Andover Village

Retirement Community v. Cole, 11th Dist. No. 2013-A-0057, 2014-Ohio-4983, ¶ 15; see

also, e.g., Tomaszczuk v. Whitaker, 909 F.3d 159, 166 (6th Cir.2018) (invoking "the canon

that different words in a statute have different meanings"). Here, the different uses of

"may" and "shall" in R.C. 1509.07 could well be understood to imply that the legislature

used those words not randomly, but to signify different meanings consistent with the

ordinary distinction between the two.

{¶ 20} Arguing from his view of what the legislative policy underlying the provision

should have been, against the conceded historical backdrop of environmental damage and

public expense left by owners who had "drilled, produced and then abandoned" their

unplugged wells, Appellant's Brief at 6, Mr. Wood contends that "if a financial statement

provides proof of financial responsibility then the object sought to be attained by the statute

is satisfied and the Chief may not reject it as proof of financial responsibility," id. at 25

(arguing further that the "object of O.R.C. §1509.07 is to provide evidence of an owner's

financial ability to perform the tasks required to comply with the provisions of O.R.C. §1509

[sic]"); see also id. at 24 (purporting to "interpret[] the statute to give effect to the legislative

intent").

{¶ 21} That a discerned goal of a statute may be attained through means different in

some respect from those mechanisms actually specified in the statute would not permit us

to rewrite the legislative text. But in light of the history that Mr. Wood recites, and even

No. 19AP-275 9

taking his atextual mode of interpretation on its own terms, we do not understand the basis

on which he urges that the legislature necessarily would have intended that the chief is

required rather than permitted to accept financial statements meeting the designated

criteria.

{¶ 22} That is, his argument based on environmental policies underlying the statute

does not explain why "may" means "shall" in R.C. 1509.07(B)(3). A surety bond or cash

deposit, as required under R.C. 1509.07(B)(1) and (2), provides assurance that land

restoration and well plugging costs expended by the state may be recouped to the extent of

the bond or deposit. Mr. Wood does not explain why the legislature might not have given

preference to that sort of assurance, while still permitting the chief in his or her discretion

to "accept proof of financial responsibility consisting of a sworn financial statement"

meeting specified thresholds, see R.C. 1509.07(B)(3). Indeed, one might think it could be

easier to collect on a surety bond or cash deposit than to levy against a financial statement.

And as the five-Justice concurrence in the Dorrian case that Mr. Wood cites notes, reading

"may" to provide discretion does not imply "an absolute discretion, regardless of proof of

abuse thereof * * *. Discretion is always subject to abuse, and if there be proof of abuse,

such discretion can be controlled and directed by an action in mandamus." 27 Ohio St.2d

at 110 (Leach, O'Neill, Herbert, Duncan, and Cook, JJ, concurring) (emphasis omitted).

{¶ 23} Mr. Wood rehearses essentially the same arguments in support of his second

assignment of error as those invoked for his first. Although we fail to discern the ambiguity

that Mr. Wood posits as permitting interpretive exploration beyond the statutory text,

especially in light of the Supreme Court's guidance in Dorrian that "may" means "may"

absent "clearly" expressed legislative intention to the contrary, see also, e.g., Smucker v.

Levin, 113 Ohio St.3d 337, 340 (2007) (" '[m]ay' is generally construed to render optional,

permissive, or discretionary the provision in which it is embodied") (citation and internal

quotation marks omitted), we need not reach a final conclusion on the first two assignments

of error because our resolution of his third assignment determines the outcome of this case.

{¶ 24} Mr. Wood's failure to submit an annual financial statement even after the

chief reminded him to do so triggered the mandatory (would Mr. Wood say discretionary?)

authority of the chief to order a surety bond, certificate of deposit, or cash bond and to order

the plugging of wells if such bond was not forthcoming. Mr. Wood on appeal does not

challenge the validity of duly promulgated Ohio Admin.Code 1501:9-1-03(F)(2)(f)(i)

No. 19AP-275 10

ordaining (emphasis added) that "[f]ailure of an owner to demonstrate financial

responsibility as required [where sworn financial statements 'may be accepted in lieu of a

surety bond' if submitted by a non-domestic well owner 'annually,' see 1501:9-1-03(F)

preface and (F)(2)(a) and (F)(2)(b)] will result in an order by the chief requiring a surety

bond, certificate of deposit, or cash bond * * * . If the order is not complied with, the owner

will receive an order by the chief requiring the plugging of all wells of the owner."

{¶ 25} The record is plain that even after being extended additional time in which to

submit his annual financial statement, Mr. Wood failed to do so. See Findings, Conclusions

& Order of Commission at 2 (noting undisputed January 2015 reminder and allowance of

additional 60 days from date of letter). Consequently, and pursuant to the regulation as

consistent with statute, the chief's order issued. In such circumstance, a chief's order "will

result" requiring the surety bond, c.d., or cash. And it did. It was that chief's order of July 7,

2015 that Mr. Wood appealed to the commission, and it is the commission's affirmance of

that order (noting that such an order "indeed is mandated under the language of O.A.C.

§1501:9-1-03(F)(2)(f)(i)," id. at 10, conclusion 5) that Mr. Wood appealed to the common

pleas court and that the common pleas court upheld.

{¶ 26} Mr. Wood's third assignment of error contends that the common pleas court

erred in finding the commission's order that affirmed the chief's order "both lawful and

reasonable," Appellant's brief at 28, but beyond the ipse dixit that "[i]t is irrelevant whether

the [chief's] order preceded the [financial] statement or the statement preceded the order,"

id. at 30, Mr. Wood offers no real argument as to why the chief's order of July 7, 2015 was

wrong, or why the commission's affirmance of that order lacked a factual foundation or

deviated from the law, or why the common pleas court's decision upholding that

determination represents an abuse of discretion or misapprehension of the law. It is the

chief's order that was at issue, and as of its issuance, Mr. Wood had not deigned to submit

his annual financial statement.

{¶ 27} Mr. Wood's ipse dixit proposition is not only unjustified, it is incorrect. He

identifies no error in the chief's order as of July 7, 2015, and he makes no showing as to why

the commission acted unlawfully or unreasonably in affirming it. The commission was

charged with reviewing the chief's order, as Mr. Wood had requested, not with assessing

Mr. Wood's after-the-fact efforts (undertaken not to comply with the order, but belatedly

to address the sustained failure that eventually had prompted the order). We are

No. 19AP-275 11

constrained to observe, moreover, that even had the commission somehow been required

to take Mr. Wood's July 17, 2015 filing into account in appraising the legality of the chief's

July 7, 2015 order—a proposition, again, for which Mr. Wood offers no support in law or

logic—Mr. Wood has advanced no reason that the commission could not lawfully have

concluded that his sustained failure to submit the annual financial statement even after

having been prodded to do so was a sufficient indicator of irresponsibility to warrant the

requirement of a surety bond or cash deposit as contemplated by statute.

{¶ 28} Skirting these issues entirely, Mr. Wood in briefing his third assignment of

error does not engage with or discuss Ohio Admin.Code 1501:9-1-03(F)(2)(f)(i) at all. This

remarkable omission disposes of his case. He argues that the chief's order "is unreasonable

because the Appellee issued the order for failure to file a new, updated financial statement,

but the order cannot be satisfied by supplying a new, updated financial statement."

Appellant's brief at 29. The plain text of the regulation, however, does not provide that such

"failure" can be "satisfied" by submission of a post-order delinquent statement: the failure

to which Mr. Wood adverts necessarily triggers an order "requiring a surety bond,

certificate of deposit, or cash bond in the amount of bond required." Ohio Admin.Code

1501:9-1-03(F)(2)(f)(i). It is undisputed that Mr. Wood did not "satisfy" the chief's order

in that (required) fashion.

{¶ 29} Instead of addressing the regulation dealing with the consequences of his

failure to submit the financial statement, Mr. Wood here again urges the unpersuasive and

in any event off-point argument that the statutory grant of authority to the chief to accept

financial statements in lieu of surety bonds, R.C. 1509.07(B)(3) ("the chief may accept

* * *"), functions instead as a preclusion of the chief's authority to require that the well

owner "shall execute and file * * * a surety bond" or cash deposit, R.C. 1509.07(B)(1) and

(2). Appellant's Brief at 29-31. Mr. Wood again invokes as support the commission's

authority as affirmed in Pepper Oil and exercised also in Valley View. But while neither

the common pleas court decision in Pepper Oil affirming the former Board of Oil and Gas

Review nor the decision of that Board in Valley View binds the common pleas court here,

or us, neither decision is inconsistent with the result here in any event.

{¶ 30} As the common pleas court noted, those two decisions are "inapposite"

because they did not involve the failure to file financial statements that is directly at issue

here. Decision and Judgment Entry at 7. More fundamentally still, those matters arose

No. 19AP-275 12

before, if they did not precipitate, promulgation of all of Ohio Admin.Code 1501:9-1-03(F).

See Ohio Admin.Code 1501:9-1-03 in the form effective from November 1, 1984 through its

next amendment effective as of July 16, 1993 (ending with subsection (E)). That is, the

regulation providing that failure, as here, to file an annual financial statement, see Ohio

Admin.Code 1501:9-1-03(F)(2)(a), "will result in an order by the chief requiring a surety

bond, certificate of deposit, or cash bond * * * * [that if] not complied with [will generate]

an order by the chief requiring the plugging of all wells of the owner," Ohio Admin.Code

1501:9-1-03(F)(2)(f)(i), did not exist at the time those other matters were determined.

{¶ 31} The regulation exists now. We overrule Mr. Wood's third assignment of

error. We therefore also overrule his first and second assignments of error, as moot.

{¶ 32} Mr. Wood bases his fourth assignment of error on the view that: "On [p]age

[s]ix of its Decision and Judgment Entry, the Common Pleas Court argues that the failure

of Appellant to respond to the letter from the Appellee requesting a new, updated financial

statement, or to file a new statement annually, or every twelve months, permits the Appellee

to issue an order that forever bars the Appellant from providing a financial statement as

proof of financial responsibility." Appellants Brief at 31-32. Although such an interpretation

of the law might be warranted, we find no such reading stated at page 6 (or anyplace else)

of the common pleas court's decision. Rather, what the common pleas court said was that

"[w]hen the financial statement is not submitted, Ohio Admin.Code 1501:9-1-03(F)(2)(f)(i)

authorizes the order requiring the filing of a surety bond, certificate of deposit, or cash

bond." We would substitute "mandates" for "authorizes," but that is an entirely correct

recitation of what the administrative code subsection provides. We overrule Mr. Wood's

fourth assignment of error, and because the decision appealed here affirms the chief's order

from 2015, we are without authority to presume to rule on hypothetical orders not before

us.

{¶ 33} We should note that Mr. Wood, at the very end of his brief in concluding his

argument for the fourth assignment of error, finally acknowledges Ohio Admin.Code

1501:9-1-03(F)(2)(f)(i). Without adopting Mr. Wood's entire characterization of that

provision, we do understand him ultimately to concede that an owner who has failed to

submit a financial statement ("cannot" supply it, in his formulation) "must supply a cash or

surety bond." Appellant's Brief at 33. For these circumstances and on the matter as

presented to us, that is our general view of the law in any extent.

No. 19AP-275 13

{¶ 34} Having overruled each of Mr. Wood's four assignments of error, we affirm

the judgment of the common pleas court that affirmed the commission's decision

upholding the chief's order of July 7, 2015.

Judgment affirmed.

KLATT, P.J., and BROWN, J., concur.

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