[¶ 1] GEM Razorback, LLC appealed from a judgment dismissing its declaratory judgment action because GEM failed to exhaust administrative remedies, and dismissing its claim for specific performance because GEM could not establish that it was a third-party beneficiary of a contract. We affirm.
I
[¶2] GEM and Zenergy, Inc. owned working interests in two oil and gas wells located in McKenzie County. Zenergy operated the wells, but GEM had not consented to pay its share of the drilling and operating costs. GEM did not execute a joint operating agreement for the wells and consequently was assessed a risk penalty as a nonconsenting owner. See N.D.C.C. § 38-08-08(3); Gadeco, LLC v. Indus. Comm’n,
[¶ 3] In October 2013, Zenergy assigned its interest in the wells to Oasis Petroleum North America LLC. The assignment conveyed all assets, including “all files, records and data maintained by” Zenergy. After the assignment, GEM requested the same information from Oasis. Oasis provided Zenergy with the requested information. However, according to Oаsis, some of the requested information for the time period before the assignment was not in its possession.
[¶ 4] Because of differences in the numbers provided by Zenergy and Oasis, GEM in May 2014 filed applications for hearing with the Industrial Commission. See N.D. Admin. Code § 43-02-03-88. The applications requested that the Commission determine the actual reasonable costs plus risk penalty for the two wells, and a hearing on the applications was held in September 2014. As a result of the hearing,
[¶ 5] In April 2015, GEM commenced this declaratory judgment and specific performance action against Zenergy. GEM sought a declaration that “as a nonparticipating owner in the ... wells, they have a statutory right under Chapter 38-08, N.D.C.C., to the information for the ... wells that they have requested from [Zen-ergy], and that [Zenergy] is required to provide this information to [GEM].” GEM also sought specific performance of the assignment entered into by Zenergy and Oasis because GEM is “a third-party beneficiary” of the assignment and “has a right to receivе, from Zenergy, those documents and information identified as ‘Records’ by” a provision in the assignment. GEM requested “an order compelling Zenergy to produce [those] documents and information.”
' [¶ 6] Zenergy moved to dismiss the action under N.D.R.Civ.P. 12(b)(1) and (6). Zenergy argued the district court lacked subject matter jurisdiction over the request for declaratory relief because GEM failed to exhaust its administrative remedies with the Commission before filing the complaint. Zenergy argued the claim for specific performance failed to state a clаim upon which relief can be granted because a provision of the assignment agreement specifically bars third-party beneficiary status. The court agreed with Zenergy’s arguments and dismissed GEM’s action.
II
[¶ 7] GEM argues the district court erred in ruling it lacked subject matter jurisdiction- to determine whether GEM had a statutory right to obtain the specified information from Zenergy because GEM did not exhaust its administrative remedies with the Commission.
[¶ 8] In Vogel v. Marathon Oil Co.,
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.
[¶ 9] In Brown v. State ex rel. State Bd. of Higher Educ.,
When appellate processеs are available and the remedies will provide adequate relief, those remedies must be exhausted before seeking judicial remedies, unless exhaustion would be futile. Tracy v. Central Cass Pub. Sch. Dist.,1998 ND 12 , ¶¶ 12-13,574 N.W.2d 781 . We have consistently required the exhaustion of remedies before the appropriate administrative agency as a prerequisite to making a claim in court. See Thompson v. Peterson,546 N.W.2d 856 , 861 (N.D.1996) (holding the failure to exhaust administrative remedies precluded a dismissed university professor from raising constitutional claims on appeal). “Failure to exhaust administrative remedies generally precludes making a claim in court.” Id.
[¶ 10] “The Act for the Control of Gas and Oil Resources, N.D.C.C. ch. 38-OS, grants the Commission comprehensive powers to regulate oil and gas development in the state.” Egeland v. Continental Res., Inc.,
[¶ 11] GEM appears to argue exhaustion of administrative remedies would be futile in this case because whether N.D.C.C. ch. 38-08 “gives GEM Razorback the right to the information is a question of statutory interpretation for the courts, not for the Industrial Commission.” We reject this argument for two reasons.
[¶ 12] First, GEM’s claim that the “Commission lacks the authority to interpret statutes” is simply incorrect. Administrаtive agencies routinely construe statutes under which they operate in the performance of administering those laws. See, e.g., HIT, Inc. v. N.D. Dep’t of Human Servs.,
[¶ 13] Second, this case is not an equitable action for an accounting. See Schank v. N. Am. Royalties, Inc.,
The Court finds that the appropriate avenue for seeking relevant information and documents is through the powers vеsted to the Industrial Commission. The Industrial Commission has the ability to request any documents necessary from Oasis or Zenergy as to any underlying dispute regarding the ... wells. See N.D.C.C. §§ 38-08-04 and 38-08-12. As noted, the orders issued by the Industrial Commission dismissing the previous Applications make clear that GEM Razorback mаy again come before the Commission to seek the determination of costs, if such issues cannot be resolved through the audit process.... Such authority of the Commission to request relevant “records, books, and documents” is therefore still available to GEM Razorback for the determination of costs if the appropriate applications are filed with the Industrial Commission. See N.D.C.C. § 38-08-12.
Furthermore, an appeal of an administrative decision is an adequate legal remedy to contest the Commission’s decisions. See Amеrada Hess Corp. v. Furlong Oil and Minerals Co.,
[¶ 14] We conclude the district court did not err in dismissing GEM’s declaratory judgment action for failure to exhaust administrative remedies.
III
[¶ 15] GEM also argues the district court erred in dismissing its claim that it is entitled to specific performance of the assignment agreement’s provision conveying “all files, records and data maintained by” Zenergy, because GEM was a third-party beneficiary of Oasis and Zenergy’s agreement.
[¶ 16] The district court applied N.D.R.Civ.P. 12(b)(6) standards to dismiss this claim for specific performance. In Mills v. City of Grand Forks,
“If, оn a motion to dismiss under N.D.R.Civ.P. 12(b)(vi), matters outside the pleadings are presented to and not excluded by the district court, the motion is treated as a motion for summary judgment under N.D.R.Civ.P. 56.” Zutz v. Kamrowski,2010 ND 155 , ¶ 8,787 N.W.2d 286 . Affidavits and exhibits were submitted to the district court in this case, and the court did not specifically exclude these materials. We therefore review this appeal under the standards for summary judgment, which “is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferenсes that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law.” Benz Farm, LLP v. Cavendish Farms, Inc.,2011 ND 184 , ¶ 9,803 N.W.2d 818 .
Here, the parties submitted numerous documents to the court and the court did not specifically exclude these materials. We therefore review this issue under summary judgment standards.
[¶ 17] “To enforce a contract between two others, a third party must have been intended by the contracting parties to be benefitted by the contract.” Apache Corp. v. MDU Res. Grp., Inc.,
Section 3.03 No Third Party Beneficiaries. Subject to Section 3.04, nothing in this Assignment shall provide any benefit to any third party or entitle any third party to any claim, cause of action, remedy or right of any kind, it being the intent of the parties hereto that this Assignment shall otherwise not be construed as a third party beneficiary contract.
“The language of the contract governs its interpretation if the language is clear and explicit and does not involve an absurdity.” Egeland,
[¶ 18] Although GEM argues there is a genuine issue of material fact about the contracting parties’ intentions regarding third-party beneficiaries and it should have been allowed a reasonable opportunity to present evidenсe on the issue, parol evidence generally cannot be used to contradict the terms of a written contract. See, e.g., Golden Eye Res., LLC v. Ganske,
[¶ 19] We conclude the district court did not err in dismissing GEM’s specific performance action as a matter of law. -
IV
[¶ 20] We do not address other arguments raised because they either are unnecessary to the decision or are without merit. The judgment is affirmed.