Texas County Irr. and Water Resources Ass'n v. Oklahoma Water Resources Bd.

• Decision Date: 13 November 1990
• Docket Number: 70609,Nos. 70608,s. 70608
• Citation: 803 P.2d 1119,1990 OK 121
• Parties: TEXAS COUNTY IRRIGATION AND WATER RESOURCES ASSOCIATION, an Oklahoma non-profit corporation; Norman Steinle and Gerald Hofferber, Plaintiffs-Appellees, v. OKLAHOMA WATER RESOURCES BOARD, Defendant-Appellant, and Mobil Oil Corporation, Defendant/Intervenor-Appellant.
• Court: Oklahoma Supreme Court

Page 1119

803 P.2d 1119

1990 OK 121

TEXAS COUNTY IRRIGATION AND WATER RESOURCES ASSOCIATION, an Oklahoma non-profit corporation; Norman Steinle and Gerald Hofferber, Plaintiffs-Appellees, v. OKLAHOMA WATER RESOURCES BOARD, Defendant-Appellant, and Mobil Oil Corporation, Defendant/Intervenor-Appellant.

Nos. 70608, 70609.

Supreme Court of Oklahoma.

Nov. 13, 1990.

As Corrected Jan. 7, 1991.

Rehearing Denied Jan. 8, 1991.

Appeal from the District Court, Texas County; John W. Michael, Judge.

In a proceeding under 75 O.S.1981 § 306 of the Administrative Procedures Act for declaratory relief from the Oklahoma Water

Resources Board's determination of maximum annual yield of water per acre from an underground water basin, the district court determined the Board's decision to be an invalid agency rule. The Board and Intervenor-Mobil Oil brought separate appeals, which were consolidated for disposition by a single opinion.

ORDER REVERSED WITH DIRECTIONS

Gary W. Davis, L. Mark Walker, Crowe & Dunlevy, Oklahoma City, for appellant, Mobil Oil Corp.

Dean A. Couch, C. Lou Klaver, Oklahoma City, for appellant, Oklahoma Water Resources Bd.

Andrew T. Dalton, Jr., Tulsa, for appellees.

OPALA, Vice Chief Justice.

At issue in this appeal is the correctness of the district court's § 306 ¹ declaratory ruling that the determination of "maximum annual yield" of water allocated to each acre of land over the Ogallala Groundwater Basin in Texas County is an invalid agency rule. We reverse the order as contrary to law.

I THE ANATOMY OF LITIGATION

Appellee, Texas County Irrigation and Water Resources Association [Association], is a non-profit Oklahoma Corporation designed to protect the groundwater resources in Texas County. Its members include the individually named appellees, who use groundwater for farming and business purposes, irrigation farmers and others interested in the agricultural industry and in the protection of Texas County's water resources. Appellant, the Oklahoma Water Resources Board [Board], is the state agency responsible for administering the Oklahoma groundwater laws. ²

The Board made a determination of the maximum annual yield [known in the agency parlance as "m.a.y." and hereafter expressed by the acronym "MAY"] of water allocated to each acre of land over the Ogallala Groundwater Basin in Texas County. Association sought below declaratory relief from the Board's MAY decision, arguing that it is not an order, but rather an invalidly promulgated rule which fails to comply with the rulemaking requirements of the Administrative Procedures Act [APA]. ³ Having failed in its quest to dismiss the suit, ⁴ the Board asserted several defenses to Association's plea for declaratory relief. ⁵ One of these defenses was that in a parallel appeal Association has brought from the MAY determination here on review the appellant in that case (appellee here) itself treats the MAY order as adjudicative. ⁶ Mobil Oil Corporation [Mobil] was allowed to intervene. ⁷ Association moved for a summary disposition, and the Board claimed there were procedural deficiencies in the motion, asserting that several factual and legal issues remained unresolved. ⁸

In the summary judgment process the only issue pressed was whether the Board's MAY decision is in fact an order. The trial court determined that MAY is a rule and gave victory to the Association, ruling that the Board has failed to comply with the APA's rulemaking requirements. ⁹ The Board and Mobil brought separate appeals, which were consolidated for disposition by a single opinion. ¹⁰

II

THE AFTER-ENACTED LEGISLATION THAT DEFINED A "MAY"

DETERMINATION AS THE PRODUCT OF ADJUDICATIVE

PROCESS CONSTITUTES BUT A CLARIFYING

PROCEDURAL AMENDMENT WHICH MAY

BE GIVEN RETROACTIVE

APPLICATION

During the pendency of this appeal the legislature amended 82 O.S.1981 § 1020.6 ¹¹ by providing the MAY hearings should be conducted under Article II of the APA, §§ 309-323, which governs agency notice and hearing requirements for individual proceedings. Appeals from a MAY decision must be brought in conformity to this article. A § 306 proceeding for declaratory relief is available for testing rules by the standards of conformity to Article I of the APA, §§ 250-308.2. That article deals with agency filing and publication requirements for rules. Association used this method for challenging the MAY determination's validity in this case.

Generally, statutes and amendments are to be construed as operating prospectively only, unless of course the legislature clearly expresses a contrary intent. ¹² If the meaning of an antecedent statute was in doubt, a presumption arises that the amendatory act was intended to clarify the existing law's ambiguity. ¹³ A clarification can be given retrospective application if it does not impair vested rights. ¹⁴ When an amendment of controlling statutory law occurs between nisi prius and the appellate decisions the reviewing court must apply the latest version of the law. ¹⁵

The pre-1988 version of § 1020.6 appears ambiguous because it does not expressly indicate whether a MAY determination emanates from the rulemaking process or from an individual proceeding. The section had received no judicial gloss. The section's ambiguity raises a presumption that the 1988 amendment was designed to clarify its text, not change its provisions, and hence should be given retrospective effect. ¹⁶

No one has a vested right in any particular mode of procedure for the enforcement or defense of a right. ¹⁷ Statutes affecting procedure only, as distinguished from those that affect substantive rights, are generally held to operate retrospectively. ¹⁸ Absent a clearly expressed or implied intention to the contrary, a procedural statute applies to all actions falling within its terms, whether the claim arose before or accrued after the law's enactment. ¹⁹

The 1988 enactment in question does not alter the parties' obligations or their right to appeal from a MAY determination. It only affects the method for securing judicial review. The clarifying intent is textually demonstrable. The very title of the amendatory act ²⁰ expresses the notion that it was intended to clarify the procedure for obtaining judicial review. Association cannot claim a "vested right" to challenge a MAY determination in a § 306 declaratory judgment suit. The legislature has determined the method to be used for review of a MAY decision is that which is applicable in an individual proceeding under Article II of the APA. The amendatory act must be given retrospective effect to accomplish the amendment's purpose.

Moreover, the MAY determination process--by which a groundwater permit is issued or renewed--bears a close resemblance to licensing. Licensing procedures are much more akin to adjudication than rulemaking. ²¹ In fact, § 314(a) of the APA requires the application of adjudicative process when "the grant, denial, or renewal of a license is required to be preceded by notice and opportunity for hearing." Furthermore, in an earlier appeal, ²² this court treated the determination there under review as adjudicative without objection from either party.

We hence conclude that even before the 1988 clarifying amendment, MAY decisions bore the earmarks of, qualified as, and came to be judicially recognized as a product of adjudicative process. They were clearly subject to the remedial regime that governs an individual proceeding.

In short, the APA's § 306 declaratory relief is available to test the validity or applicability of a rule, but not for review of adjudications effected in the course of an individual proceeding. The dispute over the validity of the MAY decision could not be litigated in the context of a § 306 proceeding. ²³

We do not pass here on the correctness of the procedure applied in the individual proceeding which resulted in the MAY determination in contest. ²⁴ We hold only that (1) even before the clarifying amendment the MAY determination process was adjudicative, and (2) the district court's declaratory powers under § 306 cannot be extended to include proceedings for review of an adjudicative decision's correctness or validity. ²⁵ Because § 306 is not available as a vehicle for challenging an order, we need not consider other issues the parties seek to present.

The order is reversed with directions to rule that the Board's MAY determination--a product of the agency's adjudicative process--was not reviewable in a § 306 proceeding.

THE ORDER IS REVERSED WITH DIRECTIONS TO DENY THE DECLARATORY RELIEF SOUGHT.

HARGRAVE, C.J., and HODGES, LAVENDER, DOOLIN, ALMA WILSON and SUMMERS, JJ., concur.

KAUGER, J., concurs in result.

SIMMS, J., recused.

1 75 O.S.1981 § 306.

2 82 O.S.Supp.1982 § 1085.1; 82 O.S.1981 § 1085.17.

3 See 75 O.S.Supp.1989 §§ 250 et seq. for the procedural requirements of the Administrative Procedures Act, Article I, which govern rulemaking.

4 In its dismissal quest the Board argued: (1) that declaratory relief is not available because the disputed order is not a "rule"; and (2) a § 306 proceeding for declaratory relief does not apply to agency orders.

The trial court based its refusal to dismiss the suit on its view that the Board's MAY decision (1) is general as opposed to specific; (2) applies to a large group of people, not just one person; and (3) appears to promulgate a rule of law which has yet to be applied.

5 The Board defended on four grounds: (a) the MAY determination results from an individual proceeding pursuant to § 301 of the APA; (b) individual proceedings produce orders, not rules, which cannot be challenged in a declaratory relief suit; (c) the Association brought in the district court an appeal from the MAY determination here in contest for review of the same order (Texas County Irrigation and Water Resources, Inc. v. Oklahoma Water Resources Board, Texas County District Court, Case number C-85-177) and Association, which had submitted proposed findings and recommendations...