Franco-American Charolaise, Ltd. v. Oklahoma Water Resources Bd., FRANCO-AMERICAN

• Decision Date: 24 April 1990
• Docket Number: FRANCO-AMERICAN,No. 59310,59310
• Parties: CHAROLAISE, LTD., Mack M. Braly and Claudia M. Braly, Three B Land & Cattle Company, F.E. Bateman, Charles Bateman, W.A. Cannon, Gerald Don Stewart, Hershell Chronister, Jesse Berrie, Mrs. John Prater and Jack Dunn, Appellees, v. The OKLAHOMA WATER RESOURCES BOARD and the City of Ada, Oklahoma, Appellants.
• Court: Oklahoma Supreme Court

Page 568

855 P.2d 568

1990 OK 44

FRANCO-AMERICAN CHAROLAISE, LTD., Mack M. Braly and Claudia M. Braly, Three B Land & Cattle Company, F.E. Bateman Charles Bateman, W.A. Cannon, Gerald Don Stewart, Hershell Chronister, Jesse Berrie, Mrs. John Prater and Jack Dunn, Appellees, v. The OKLAHOMA WATER RESOURCES BOARD and the City of Ada Oklahoma, Appellants.

No. 59310.

Supreme Court of Oklahoma.

April 24, 1990.

Readopted, Reissued and Rehearing

Denied April 13, 1993.

Rehearing Denied June 14, 1993.

On Appeal from the District Court, Coal County; Lavern Fishel, Trial Judge.

In an appeal from an Oklahoma Water Resources Board order granting the City of Ada's amended application to appropriate stream water from Byrd's Mill Spring, Pontotoc County, the trial court made findings of fact and conclusions of law. The relevant conclusions of law for consideration of this appeal are:

1. The exercise of the State's police power to protect waters from waste and to protect the general public cannot extend to abrogate the riparian right to the normal flow or the normal underflow of the stream.

2. The riparian right, long recognized, cannot be disturbed absent acquisition or condemnation.

3. To properly calculate the amount of stream water available for appropriation, the Oklahoma Water Resources Board must subtract downstream domestic needs, prior appropriations prior vested rights and existing riparian rights from the total amount of water available.

4. In determining the City of Ada's need for stream water, the Oklahoma Water Resources Board must consider all water sources claimed by the City of Ada and grant the appropriation determinable upon the City of Ada's perfection of claimed rights to 9,678 acre feet ¹ of groundwater per year.

5. Under the provisions of 82 O.S.1981 § 105.12(4), all of the water appropriated by the City of Ada to be used out of the basin of origin (80%) is subject to recall by users in the basin of origin.

6. Downstream domestic users below the junction of Buck and Boggy Creeks should be protected in the Oklahoma Water Resources Board's calculation of water available for an appropriation.

TRIAL COURT'S ORDER ON APPEAL FROM THE AGENCY AFFIRMED IN PART AND REVERSED IN PART; CAUSE REMANDED WITH DIRECTIONS.

George W. Braly, Mack M. Braly, Messrs. Braly and Braly, Tulsa, for appellees.

Dean A. Couch, R. Thomas Lay, Oklahoma City, for appellant Oklahoma Water Resources Bd.

Joseph Rarick, Messrs. Younger & Files, Ada, for appellant City of Ada.

R. Steven Horn, Tulsa, for amicus curiae Oklahoma Wildlife Federation, Inc.

Diane Pedicord, Sue Ann Nicely, Oklahoma City, for amicus curiae, Oklahoma Mun. League.

Steven E. Moore, Diane Goldschmidt, Oklahoma City, for amicus curiae, Oklahoma Gas and Elec. Co.

Jay M. Galt, Messrs. Looney, Nichols, Johnson & Hayes, Oklahoma City, for amicus curiae, Oklahoma Rural Water Ass'n.

Robert D. Allen, Thomas Scott Jones, for amicus curiae, City of Oklahoma City and the Oklahoma City Mun. Improvement Authority.

Robert H. Anderson, Oklahoma City, for amicus curiae, McGee Creek Authority.

OPALA, Justice.

This appeal challenges the constitutionality of the 1963 amendments to Oklahoma's water law insofar as the amendments regulate riparian rights. ² The case also raises a first-impression question about the interpretation of the requirements for perfecting an appropriative right under 82 O.S.1981 § 105.12. ³ We affirm the trial court's findings of fact, holding that they are supported by substantial evidence. ⁴ The questions of law tendered for our resolution are:

1. What is the nature of the riparian right under Oklahoma common law?

2. To what extent did the 1963 amendments abrogate the common-law riparian right?

3. Are the 1963 amendments constitutional when measured by Art. 2, § 24 Okl. Const.?

4. Does 82 O.S.1981 § 105.12(2) require consideration of an applicant's available groundwater in determining its need for stream water?

5. Does 82 O.S.1981 § 105.12(4) require that an out-of-basin appropriation be granted subject to recall by in-basin riparian owners and appropriative users?

We hold that the Oklahoma riparian owner enjoys a vested common-law right to the reasonable use of the stream. This right is a valuable part of the property owner's "bundle of sticks" and may not be taken for public use without compensation. ⁵ We further hold that, inasmuch as 60 O.S.1981 § 60, as amended in 1963, limits the riparian owner to domestic use and declares that all other water in the stream becomes public water subject to appropriation without any provision for compensating the riparian owner, the statute violates Art. 2 § 24, Okl. Const.

In addition, we declare that the California Doctrine of stream water rights, ⁶ which recognizes riparian and appropriative rights as coexistent, is the prevailing law in Oklahoma; that the Oklahoma Water Resources Board [OWRB] may, in its discretion, find that an applicant for an appropriation has a need for stream water without regard to any claimed or perfected groundwater sources; that a perfected appropriative right is a vested right which may not be permanently divested except for nonuse after notice and hearing but is subject to senior appropriative rights and reasonable riparian uses during shortages; and that in the future a riparian owner seeking an appropriation of stream water must be deemed to have voluntarily relinquished his riparian rights in that stream water except for those preserved under the statute for domestic uses.

A. STATEMENT OF THE FACTS

Mill Creek is a spring-fed dry weather creek in the Upper Clear Boggy watershed within the Muddy Boggy River Basin. Byrd's Mill Spring flows directly into Mill Creek which in turn flows into Clear Boggy Creek. Clear Boggy Creek is joined by Buck Creek and flows downstream as Clear Boggy Creek where it joins Muddy Boggy Creek to form the Muddy Boggy River. The latter is a tributary of the Red River. In 1980 the area experienced a severe drought and the stream bed in Clear Boggy Creek went dry. In August of 1980 the City of Ada [City] made application, pursuant to 82 O.S.1981 § 105.9, to increase its appropriation of water from Byrd's Mill Spring from 3,360 acre feet per year to 11,202 acre feet per year to meet a projected annual need of 10,523 acre feet per year by the year 2020. The City straddles two watersheds with approximately 80 percent in the South Canadian Stream Basin and 20 percent in the Clear Boggy Stream Basin. Riparian owners and in-basin appropriators objected to the City's application for additional stream water. The OWRB determined that the average yield of Byrd's Mill Spring is 9,820 acre feet per year. Prior appropriations, including that of the City and some appellee riparian owners, total 3,776 acre feet per year. Allowing 584 acre feet to supply domestic needs down to Buck Creek and 120 acre feet for unavoidable loss, the OWRB found the amount available for appropriation was 5,340 acre feet, 2,502 acre feet less than the 7,842 acre feet requested by the City. The City amended its application to conform to the finding. The OWRB then granted all 5,340 acre feet available for appropriation to the City, requiring the City to release at least 1,120 acre feet of water per year downstream. The OWRB order also required the City to meter and record monthly the amount of water taken from Byrd's Mill Spring. In-basin riparian owners and appropriators appealed from the administrative decision to the District Court, Coal County. ⁷

B. COMMON-LAW AND STATUTORY AUTHORITY AFFECTING WATER RIGHTS

The Organic Act of 1890 ⁸ extended England's common law over Indian Territory. The same year the Territorial Legislature adopted a statute declaring the nature of water rights in the Territory:

"The owner of land owns water standing thereon, or flowing over or under its surface, but not forming a definite stream. Water running in a definite stream, formed by nature over or under the surface may be used by him as long as it remains there; but he may not prevent the natural flow of the stream, or of the natural spring from which it commences its definite course, nor pursue nor pollute the same." ⁹

This codification of the common-law riparian doctrine of water rights remained the law in Oklahoma until legislative adoption of the 1963 amendments.

In 1897 the legislature provided for the appropriation of the ordinary flow or underflow of stream water for the irrigation of arid sections of the State. ¹⁰ The statute protected the riparian owner from the appropriation of the ordinary flow of the stream without the riparian owner's consent except by condemnation. ¹¹ In 1905 the provision protecting the riparian right was omitted. ¹² It was reinstated in 1909, then finally eliminated in 1910. ¹³ In 1925 the legislature added a provision recognizing the priority of all beneficial uses of water initiated prior to statehood. ¹⁴

Since 1897 both the common law and the statutes have operated in Oklahoma to confer riparian and appropriative rights. Though these rights have coexisted in the State for almost 100 years, they are theoretically irreconcilable. ¹⁵ The common-law riparian right extends to the reasonable use of the stream or to its natural flow, depending on the jurisdiction; the appropriative right attaches to a fixed amount. The last riparian use asserted has as much priority as the first; the appropriator who takes first has the senior right. In 1963 the legislature attempted to reconcile the two doctrines. The amendments, shown in italics, are as follows:

"The owner of the land owns water standing thereon, or flowing over or under its surface but not forming a definite stream. The use of groundwater shall be governed by the Oklahoma Ground Water Law. Water running in a definite stream, formed by nature over or under the surface, may be used by him for domestic purposes as defined in Section 2(a) of this Act, as long as it remains there, but he may not prevent...