Jacobs Ranch, L.L.C. v. Smith

• Citation: 2006 OK 34,148 P.3d 842
• Decision Date: 23 May 2006
• Docket Number: No. 101,727.,101,727.
• Parties: JACOBS RANCH, L.L.C., an Oklahoma limited liability company, Roos Ranch, Inc., an Oklahoma corporation, and Roos Resources, Inc., an Oklahoma corporation, Plaintiffs/Appellants, v. Duane A. SMITH, as Executive Director, and the Oklahoma Water Resources Board, an agency of the State Of Oklahoma, Defendants/Appellees, and Arbuckle Master Conservancy District, the City of Ardmore, The City of Davis, the City of Durant, the City of Sulphur, the City of Tishomingo, the City of Wynnewood, The City of Ada, and Gary Green, Earl Brewer, John Bruno, and Reginald Easterling, as members of the Citizens for the Preservation of the Arbuckle-Simpson Aquifer, Intervenors/Appellees.
• Court: Supreme Court of Oklahoma

148 P.3d 842

2006 OK 34

JACOBS RANCH, L.L.C., an Oklahoma limited liability company, Roos Ranch, Inc., an Oklahoma corporation, and Roos Resources, Inc., an Oklahoma corporation, Plaintiffs/Appellants, v. Duane A. SMITH, as Executive Director, and the Oklahoma Water Resources Board, an agency of the State Of Oklahoma, Defendants/Appellees, and Arbuckle Master Conservancy District, the City of Ardmore, The City of Davis, the City of Durant, the City of Sulphur, the City of Tishomingo, the City of Wynnewood, The City of Ada, and Gary Green, Earl Brewer, John Bruno, and Reginald Easterling, as members of the Citizens for the Preservation of the Arbuckle-Simpson Aquifer, Intervenors/Appellees.

No. 101,727.

Supreme Court of Oklahoma.

May 23, 2006.

Rehearing Denied and as Corrected November 6, 2006.

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On Appeal from the District Court, Oklahoma County; The Honorable Carolyn Ricks, Presiding.

¶ 0 Plaintiffs filed suit in the district court for declaratory and injunctive relief. Plaintiffs alleged that 82 O.S.Supp.2003, §§ 1020.9, 1020.9A and 1020.9B are unconstitutional and asked the court to enjoin the Oklahoma Water Resources Board from enforcing those statutes. The challenged law defines "sensitive sole source groundwater basin" and imposes moratoria on issuing temporary permits to withdraw water and on local governmental contracting to transfer water from a sensitive sole source groundwater basin. Plaintiffs moved for summary judgment. The district court entered summary judgment in favor of the defendants and intervenors. Plaintiffs appealed. This Court retained the appeal.

DISTRICT COURT'S SUMMARY JUDGMENT AFFIRMED.

Clyde A. Muchmore, Mark S. Grossman, Crowe & Dunlevy, Oklahoma City, OK, for plaintiffs/appellants.

Dean A. Couch, Oklahoma City, OK, for defendants/appellees, Duane A. Smith and Oklahoma Water Resources Board.

Jason B. Aamodt, Rayanne G. Tobey, Aamodt & Tobey, Tulsa, OK, for intervenors/appellees, Gary Green, Earl Brewer, John Bruno, and Reginald Easterling as members of the Citizens for the Preservation of The Arbuckle-Simpson Aquifer.

D. Craig Shew, Smith, Shew, Scrivener & Corbin, Ada, OK, for intervenor/appellee, the City of Ada.

Charles W. Shipley, Robert D. Kellogg, Jamie Taylor Boyd, Shipley & Kellogg, P.C., Tulsa, OK, for intervenors/appellees, The Arbuckle Master Conservancy District and the Cities of Ardmore, Davis, Durant, Sulphur, Tishomingo and Wynnewood.

Neal Leader, Senior Assistant Attorney General, Oklahoma City, OK, for the Office of the Attorney General.¹

TAYLOR, J.

¶ 1 Plaintiffs/appellants challenge recent amendments to the Oklahoma Groundwater Law, 82 O.S.2001, §§ 1020.1, et seq. The challenged legislation,² codified at 82 O.S.Supp.2003, §§ 1020.9, 1020.9A and 1020.9B, relates to "sensitive sole source groundwater basins." It defines "sensitive sole source groundwater basin" as:

a major groundwater basin or subbasin all or a portion of which has been designated as a "Sole Source Aquifer" by the United States Environmental Protection Agency pursuant to the Safe Drinking Water Act, as of the effective date of this act, including any portion of any contiguous aquifer located within five (5) miles of the known areal extent of the surface out-crop of the sensitive sole source groundwater basin.

82 O.S.Supp.2003, § 1020.9A(B)(1). The challenged legislation imposes moratoria on 1) issuing temporary permits that would lead to any additional municipal or public use of water from a sensitive sole source groundwater basin at locations outside of the basin and 2) contracting by municipalities and other political subdivisions outside a sensitive sole source groundwater basin for water from the basin. 82 O.S.Supp.2003, §§ 1020.9A(B)(1) and 1020.9B(A). The moratoria are effective until a hydrological study is completed and the Oklahoma Water Resources Board determines a maximum annual yield for the sensitive sole source groundwater basin. 82 O.S.Supp.2003, §§ 1020.9A(B)(2) and 1020.9B(B). The challenged legislation also requires the Oklahoma Water Resources Board, before issuing a permit to withdraw water from a sensitive sole source groundwater basin, to determine if the proposed use is likely to degrade or interfere with springs or streams emanating in whole or in part from water originating from the sensitive sole source groundwater basin. 82 O.S.Supp. 2003, § 1020.9(A)(1)(d).

¶ 2 The legislation is challenged as: 1) a special law regulating municipal and county affairs contrary to the Okla. Const., art. 5, § 46; 2) a special law relating to a subject area that can be dealt with in a general law contrary to the Okla. Const., art. 5, § 59; 3) a special law with no notice as required by the Okla. Const., art. 5, § 32; 4) a taking of private property without just compensation contrary to the Okla. Const., art. 2, § 24 and the U.S. Const., Fifth Amendment, Takings Clause; and 5) discriminatory treatment of landowners contrary to the U.S. Const., Fourteenth Amendment, Equal Protection Clause. We conclude the challenged legislation is valid and uphold the legislation codified at 82 O.S.Supp.2003, §§ 1020.9, 1020.9A and 1020.9B.

I. Facts and Proceedings Below

¶ 3 The plaintiffs/appellants, Jacobs Ranch, LLC, Roos Ranch, Inc., and Roos Resources, Inc., claim rights in and to the groundwater in the Arbuckle-Simpson Groundwater Basin underlying their property in Pontotoc County. They also claim to be holders of temporary permits for the withdrawal of that groundwater.

¶ 4 The defendants/appellees, Oklahoma Water Resources Board (OWRB) and Duane A. Smith, Executive Director of the OWRB, are responsible for the administration and enforcement of Oklahoma's groundwater law. The municipal intervenors, Ardmore, Davis, Durant, Sulphur, Tishomingo, Wynnewood and Ada, receive all or a portion of their water supply from the Arbuckle-Simpson Groundwater Basin. Other intervenors are the Arbuckle Master Conservancy District and some of the members of Citizens for the Preservation of the Arbuckle-Simpson Aquifer.

¶ 5 The Arbuckle-Simpson Groundwater Basin is a major groundwater basin as defined by the Oklahoma Groundwater Law. 82 O.S.2001, § 1020.1. It lies entirely within the State of Oklahoma. It extends into five counties- Pontotoc, Murray, Johnston, Carter and Coal counties. It has depths greater than any other aquifer in the state, and its hydraulic and geologic conditions are unique in the state. It is a predominately carbonate aquifer that provides high-sustained flows to its springs and streams. Its carbonate formation, the limestone and dolomite strata, causes the recharge and discharge rates to be less predictable than aquifers with the more common sandstone and shale formations.

¶ 6 The Arbuckle-Simpson Groundwater Basin serves as a source of good-quality drinking water to many domestic users, municipalities and parks in the area overlying the basin. The United States Environmental Protection Agency (EPA) has designated a portion of the Arbuckle-Simpson Groundwater Basin as a sole source aquifer pursuant to the Safe Drinking Water Act, 42 U.S.C. §§ 300g and 300h-3 e.³ There are a total of seventy-two designated sole source aquifers in the continental United States.

¶ 7 The municipal intervenors receive drinking water from the Arbuckle-Simpson Groundwater Basin or sources that originate in the basin. Municipal and public water supply use is one of the largest uses of water permitted to be withdrawn from the Arbuckle-Simpson Groundwater Basin.

¶ 8 The OWRB has the duty to make a hydrologic survey and investigation of each groundwater basin in Oklahoma at least every twenty years. 82 O.S.2001, § 1020.4. The OWRB also has the duty to determine a maximum annual yield of groundwater to be produced from each groundwater basin. 82 O.S.2001, § 1020.5. Any regular permit to withdraw water from a groundwater basin must be based upon a completed hydrological study and a maximum annual yield determination. 82 O.S.2001, § 1020.11.

¶ 9 The Oklahoma Geological Survey and the United States Geological Survey studied the hydrology of the Arbuckle-Simpson Groundwater Basin. In 1990, those agencies reported on the hydrology of the Arbuckle-Simpson Groundwater Basin but the report was not prepared to support a finding of the maximum annual yield by the OWRB. The OWRB advises that a hydrological study sufficient to determine a maximum annual yield will be completed in the calendar year of 2008.

¶ 10 In 1985 and 1986, the OWRB issued temporary permits to withdraw water for public and municipal use to plaintiffs/appellants based on their interests in land in Pontotoc County overlying the Arbuckle-Simpson Groundwater Basin. The temporary permits were revalidated annually until 2003. Beginning in 2003, numerous protests objecting to any further revalidation of plaintiffs'/appellants' temporary permits have been filed with the OWRB.

¶ 11 Plaintiffs/appellants did not withdraw any water from the Arbuckle-Simpson Groundwater Basin pursuant to their temporary permits.⁴ However, in 2003 plaintiffs/appellants proposed to begin selling more than twenty billion gallons of water annually from the Arbuckle-Simpson Groundwater Basin to municipalities in Canadian County, Oklahoma. Although no Canadian County municipality is involved in this litigation, plaintiffs/appellants assert that the Canadian County municipalities depend on groundwater sources that may become impractical in the future due to more restrictive arsenic standards for drinking water. Those municipalities also purchase water from Oklahoma City.⁵

¶ 12 Without a sufficient hydrological study, the effect of plaintiffs'/appellants' proposed withdrawal of water from the Arbuckle-Simpson Groundwater Basin can not be determined by the OWRB. However, it is undisputed that: 1) aquifers in Oklahoma have suffered irreversible decline where withdrawals exceeded the aquifer's ability to recharge, such...