Kline v. State, ex rel. Oklahoma Water Resources Bd.

• Decision Date: 23 February 1988
• Docket Number: 65544,Nos. 65540,s. 65540
• Citation: 1988 OK 18,759 P.2d 210
• Court: Oklahoma Supreme Court
• Parties: Larry KLINE, et al., Appellants, v. The STATE of Oklahoma, ex rel. The OKLAHOMA WATER RESOURCES BOARD, Appellee, and Western Farmers Electric Cooperative, Intervenor.

Page 210

759 P.2d 210

1988 OK 18

Larry KLINE, et al., Appellants, v. The STATE of Oklahoma, ex rel. The OKLAHOMA WATER RESOURCES

BOARD, Appellee,

and

Western Farmers Electric Cooperative, Intervenor.

Nos. 65540, 65544.

Supreme Court of Oklahoma.

Feb. 23, 1988.

As Corrected Feb. 25, 1988.

Appeal from the District Court of Woodward County; Ray Dean Linder, District Judge.

Pursuant to provisions of the Oklahoma Groundwater Law, 82 O.S.1981, § 1020.1 et seq., the Oklahoma Water Resources Board determined maximum annual yield to be allocated to each acre of land overlying the groundwater basin of the alluvium and terrace deposits of the Beaver-North Canadian River in Blaine, Major, Dewey, Harper and Woodward Counties in northwestern Oklahoma. In the District Court of Woodward County, Appellant-landowners sought review of the Board's determination of maximum annual yield. Appellants were joined by the Intervenor, Western Farmers Electric Cooperative, in challenge to constitutionality of provisions of the Oklahoma Groundwater Law. The District Court affirmed the Board's determination of maximum annual yield and upheld the constitutionality of the Oklahoma Groundwater Law.

AFFIRMED.

Duke Halley, Woodward, for appellants.

Dean A. Couch, Jerry Barnett, Oklahoma Water Resources Bd., Oklahoma City, for appellee.

Larry Derryberry, O. Clifton Gooding, Derryberry Quigley Parrish Gooding & Nance, Oklahoma City, for intervenor.

ALMA WILSON, Justice:

At issue is the trial court's affirmance of a final order entered by the Oklahoma Water Resources Board on August 9, 1983. The Board's order established the maximum annual yield of fresh ground water from the alluvium and terrace deposits of the Beaver-North Canadian River in five counties in northwestern Oklahoma. Based upon data and information compiled by the United States Geological Survey, the Board allocated one (1) acre-foot of fresh ground water to each acre of land overlying the basin comprised by the alluvium and terrace deposits of the Beaver-North Canadian River in Harper, Major, Woodward, Dewey and Blaine Counties, Oklahoma.

Pursuant to 82 O.S.1981 § 1020.5 (1-5), the elements included in the survey and investigation conducted by the United States Geological Survey to determine maximum annual yield encompassed the following: (a) the total land area overlying the basin or subbasin at 426,000 acres; (b) the amount of water in storage in the basin or subbasin as of 1973 at 4.11 million acre-feet; (c) the rate of natural recharge to the basin or subbasin at 2.5 inches per year and total discharge from the basin or subbasin during the 20 year simulation period at 6.23 million acre-feet; (d) transmissibility of the basin at 5 to 8,030 feet squared per day and averaged 1,820 feet squared per day; and, (e) the possibility of pollution to the basin or subbasin from natural sources, which was found to be negligible.

At the administrative hearing below, interested landowners appeared to protest the Board's determination of maximum annual yield. Thereafter the landowners appealed the matter to the District Court of Woodward County. Western Farmers Electric Cooperative, an electric generation facility which obtains ground water within the area in question, sought to intervene in the landowners' appeal and also filed a separate appeal, though it had not appeared at the administrative hearing. As basis for intervention in the landowners' appeal, Western Farmers Electric Cooperative asserted that the construction given the Oklahoma Groundwater Law by the Oklahoma Water Resources Board is unconstitutional. Accordingly, upon its Petition to Intervene in the landowner's appeal, Western Farmers Electric Cooperative confined its request to encompass only those legal and constitutional issues common between its own appeal and that of the case into which it sought to intervene; namely, the constitutional propriety of the Oklahoma Groundwater Law. The District Court of Woodward County granted the Cooperative's request to intervene; however, extraneous issues raised by Western Farmers Electric Cooperative remained pending in its own appeal to the District Court. ¹

On November 4, 1985, the District Court of Woodward County affirmed the Board's order, including the determination of maximum annual yield as supported by substantial evidence in the administrative record. The District Court, moreover, upheld as constitutional the contested provisions of the Oklahoma Groundwater Law, codified at 82 O.S.1981, § 1020.1 et seq. Appellant-landowners and the Intervenor, Western Farmers Electric Cooperative, separately appealed this ruling. We have consolidated these separate appeals for disposition.

I

In Oklahoma Water Resources Board & Mobil Oil Corp. v. Texas County Irrigation & Water Resources Ass'n., 711 P.2d 38 (Okl.1984), this Court considered 82 O.S.1981, § 1020.1 et seq., the relevant and applicable ground water law enacted in 1972. Therein, we emphasized that under the 1972 revisions, our Legislature adopted a policy of utilization of state water resources, as opposed to the prior use conservation policy. We likewise acknowledged the Act's requirement of a minimum basin life of twenty (20) years. Accordingly, we noted the express mandate of the current ground water law:

"It is hereby declared to be the public policy of this state, ... to utilize the ground water resources of the state, and for that purpose to provide reasonable regulations for the allocation for reasonable use based on hydrologic surveys of fresh ground water basins to determine a restriction on the production, based on the acres overlying the ground water basin or subbasin...."

[82 O.S.1981, § 1020.2] [Emphasis added.]

In conformity with the statutory directive, above, we concluded in Mobil that as regards the utilization of the ground water resources of this state, the issuance of a permit must meet all statutory requirements, including, "allocation for reasonable use" and "restriction of the production" based upon information provided by hydrologic survey. Inquiry into these matters we deemed legally necessary and reasonable in order that the water resources of our State may be utilized responsibly. Upon consideration of the revised Groundwater Act, in Mobil, we cast no constitutional doubt thereon. We today expressly uphold its constitutionality. We accordingly find no merit in either the Appellant-landowners' or the Intervenor's constitutional challenges to the Oklahoma Groundwater Law which has now been in place some fifteen (15) years hence.

The 1972 Oklahoma Groundwater Law (effective July 1, 1973), is the current legislatively prescribed law which governs the use of groundwater in Oklahoma. It prescribes the parameters and scope of Oklahoma's current authorized and reasonable use rule. "Reasonable use", in the context of the current law, is not indicative of the common law usage, nor that of previous case authority. Ref., e.g., Canada v. City of Shawnee, 179 Okl. 53, 64 P.2d 694 (1936). In providing for "reasonable regulations for the allocation for reasonable use based on hydrologic surveys of fresh groundwater basins or subbasins to determine a restriction on the production", the extent of the underscored language is used in its ordinary sense in order that the water resources of our...