803 P.2d 1119 (Okla. 1990), 70608, Texas County Irr. and Water Resources Ass'n v. Oklahoma Water Resources Bd.

Docket Nº:70608, 70609.
Citation:803 P.2d 1119, 1990 OK 121
Party Name: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.
Case Date:November 13, 1990
Court:Supreme Court of Oklahoma
 
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Page 1119

803 P.2d 1119 (Okla. 1990)

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.

November 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

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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

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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

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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

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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'...

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