State ex rel. Pollution Control Coordinating Bd. v. Kerr-McGee Corp.

• Decision Date: 04 November 1980
• Docket Number: KERR-M,No. 50235,50235
• Citation: 619 P.2d 858
• Parties: 11 Envtl. L. Rep. 20,458, 1980 OK 166 The STATE of Oklahoma ex rel. The POLLUTION CONTROL COORDINATING BOARD, Appellee, v.cGEE CORPORATION, a corporation; Midland Cooperatives, Inc., a corporation and Cushing Tank Car Company, Inc., a corporation, Appellants.
• Court: Oklahoma Supreme Court

Page 858

619 P.2d 858

11 Envtl. L. Rep. 20,458, 1980 OK 166

The STATE of Oklahoma ex rel. The POLLUTION CONTROL COORDINATING BOARD, Appellee, v. KERR-McGEE CORPORATION, a corporation; Midland Cooperatives Inc., a corporation and Cushing Tank Car Company Inc., a corporation, Appellants.

No. 50235.

Supreme Court of Oklahoma.

Nov. 4, 1980.

Appeal from District court of Payne County; Ray Lee Wall, Trial Judge.

Defendants appeal a jury award of damages, actual and punitive, arising out of a fish kill on the Cimarron River.

AFFIRMED.

Larry Derryberry, Atty. Gen., of Oklahoma, H. Lee Schmidt, Charles Helm, Asst. Attys. Gen. and Amalija J. Hodgins, Asst. Attys. Gen., of counsel; James R. Barnett and Barbara Rauch, Oklahoma City, for appellee.

B. J. Zimmerman, Oklahoma City, and Kerr, Davis, Irvine, Krasnow, Rhodes & Semtner by Francis S. Irvine, Oklahoma City, for appellant, Kerr-McGee Corp.

Fitzgerald, Houston & Worthington by Clee Fitzgerald, Stillwater, for appellant, Midland Cooperatives, Inc.

Barrow, Gaddis, Griffith & Grimm by William R. Grimm, Tulsa, for appellant, Cushing Tank Car Co., Inc.

DOOLIN, Justice:

In July of 1970, a sizeable number of fish died in the Cimarron River near Cushing, Oklahoma. Rangers visiting several sample points along the Cimarron estimated the number of fish killed at over 160,000. The State of Oklahoma ex rel. Pollution Control Coordinating Board (State) commenced this suit against Kerr-McGee Corporation (Kerr-McGee), Midland Cooperatives, Inc. (Midland) and Cushing Tank Car Company, Inc. (Cushing) to recover the sum necessary to restock the Cimarron River with fish.

The suit was based on the Pollution Control Coordinating Act 82 O.S.Supp.1968 § 931 et seq., since amended in 1971 and 1976, (the Act) and common law negligence. The petition alleged defendants did deposit deleterious substances into the Cimarron which caused the fish kill. In addition to actual damages in the amount of $50,211.45 necessary to restock the river, State asked for punitive damages of $250,000.00 on the grounds defendants acted with wanton and reckless disregard for the waterways and aquatic wildlife of this state.

At the initial hearing in 1973, the trial court sustained demurrers of all defendants. State appealed and this court reversed and remanded for trial in an opinion by Justice Hodges, State ex rel. Pollution Control Co. v. Kerr-McGee Corporation, 532 P.2d 1386 (Okl.1975).

Section 937(c) of the 1968 Act provides:

Any person, firm or corporation who violates any of the provisions of, or fails to perform any duty imposed by this Act or regulation issued hereunder, or who violates any order or determination of the board promulgated pursuant to this Act, and causes the death of fish or other wildlife shall, in addition to the penalties provided in subsection (b), be liable to pay to the State an amount equal to the sum of money reasonably necessary to restock such waters or replenish such wildlife as determined by the board. Such amount may be recovered by the board on behalf of the State in a civil action brought in the District Court. (Emphasis supplied).

This court in the original decision remanding for trial held this section to be constitutional and further held State's petition did state a cause of action under this section and in negligence. On remand defendants answered, alleging the death of the fish was not caused by any deleterious substances but by the depletion of oxygen caused by the unusually high rainfall around that time.

The case was submitted to the jury who returned a verdict of $49,617.11 actual damages and $127,100.00 punitive damages. Defendants now appeal from the overruling of their motions for judgment notwithstanding the verdict and new trial.

I

Several allegations of error offered by one or more defendants must be initially considered as threshold issues concerning the standing of State to bring this action for both actual and punitive damages. Arguments in the decision in State ex rel. Nesbitt v. Apco Oil Corporation, 569 P.2d 434 (Okl.1977) dictates the state is not a "person" who could instigate such a suit, are without merit. That decision, distinguishable from the one at hand, was an antitrust case based on a statutory provision creating a cause of action for treble damages. Under special statute the state was not authorized to bring suit. Additionally, however, this court stated (at p. 436), "certainly the State of Oklahoma is a juristic person in the sense it has capacity to sue upon contracts or in vindication of its property rights."

The State has a statutory right of recovery when it must restock the waters with fish life due to a violation of the "Pollution Control Coordinating Act of 1968," 82 O.S.Supp.1968 § 937(c).

In addition there is a common-law right of the State that stems not from any proprietary interest in the fish but from "the legitimate state concerns for conservation and protection of wild animals ..." Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 1738, 60 L.Ed.2d 250 (1979). Hughes holds the states may promote the legitimate purpose of protection and conservation of wild animals within their borders so long as they remain consistent with the Commerce Clause of the United States Constitution and adhere to the basic principle that "our economic unit is the Nation".

In short, the state's common-law right to sue for wrongful destruction of wildlife is not dependent on ownership but rather on the sovereign power to regulate, preserve and protect wild animals and fish for the common enjoyment of its citizenry. ¹

Although the awarding of only nominal damages is a possibility, such award is nonetheless sufficient to lay a predicate for the additional recovery of punitive damages. ²

Defendants next argue State could not file a civil action without first complying with provisions of the Act entitling a violator to notice of meeting of the Wildlife Commission, citing the initial decision of this court, State ex rel. Pollution Control Board v. Kerr-McGee Corporation, supra. Defendants are referring to a meeting of the Wildlife Commission where it determined the amount of damages that would be sought in the present suit based on the cost to restock the Cimarron.

Section 936 of the Pollution Control Coordinating Act and Section 301 et seq. of the Administrative Procedures Act, 75 O.S.Supp.1969, require notice of hearing before the Board of Department of Pollution Control (Board) may issue any order. However, Section 301(2)(C) of the Administrative Procedures Act exempts from the Act "statements concerning only the internal management of an agency and not affecting private rights or procedures available to the public." The meeting concerned here was not a meeting of the Pollution Control Board but rather a meeting of the Wildlife Conservation Commission to determine restocking costs. No order issued from the meeting. No penalty was assessed under the penal portion of the statute. Defendants received actual notice of the amount of damages sought. They had ample opportunity to rebut the evidence of damages at trial. Defendants show no prejudice by any lack of notice of this meeting. Although our previous decision stated the issue of actual notice was for trier of fact, ³ this would only apply if notice was an issue. Trial Court correctly held such was not the case.

Defendants also urge State could not seek punitive damages in addition to actual damages under the Act because this would be a double penalty prohibited by 21 O.S. 1971 § 11. This might be a valid argument if State had imposed a penalty as provided by Section 937(b) of the 1968 Act. ⁴ The record, however, does not reflect any action taken under this provision. Rather State filed the present suit seeking civil damages based on the Act and on common law negligence. This action is neither criminal nor penal in nature but compensatory. There is no double jeopardy in civil enforcement. ⁵ Punitive damages are inherently cumulative and may be recovered if the jury finds they are warranted. State has standing and properly brought this action.

II

Defendants submit several evidentiary rulings as errors in the proceeding. State introduced its Water Quality Standards, to evidence violations on the part of all defendants creating a cause of action under the Act. Defendants submit their adoption was not in compliance with the State Agency Rules and Regulations, more specifically 75 O.S.Supp.1961 §§ 251-257 in that while the Water Quality Standards were properly filed with the Secretary of State, they were not published in the Oklahoma Gazette in their entirety. The terms of Section 255 provide regulations made by a state agency shall be void unless filed and published in the Oklahoma Gazette. Volume 8, § 2, of the Gazette at page 279 in reference to these standards states: "Due to the length of manual filed, it is not being published at this time, however, a copy of it is on file at this office for public inspection." It is apparent Board properly filed the standards with the Secretary of State. While not actually reproduced in the Gazette, the standards were "published" in the sense of being made public. ⁶ The purpose of the section 255 publication requirement is to give public notice of the law contained therein. In the instant case the standards were properly adopted and filed. The terms of section 936(d) of the 1968 Pollution Control Coordinating Act provide that procedures of the Board shall be conducted in compliance with the Administrative Procedures Act (APA). 75 O.S.Supp.1969 § 301 et seq. ⁷ Assuming without deciding that section 255 publication standards apply to APA-governed agencies, that section was doubtless satisfied here by publication of notice in the Gazette and the pre-announced availability of the water quality standards for public inspection. ⁸

Evidence at trial showed Skull Creek, a tributary of the Cimarron, rises in the area of Midland's refinery and...