Water v. City of Guthrie

• Decision Date: 12 May 2014
• Docket Number: No. 109575.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,109575.
• Citation: 325 P.3d 1
• Parties: RURAL WATER, Sewer And Solid Waste Management District No. 1, Logan County, Oklahoma, an agency and legally constituted authority of the State Of Oklahoma, Plaintiff/Appellant, v. CITY OF GUTHRIE, an Oklahoma Municipality and The Guthrie Public Works Authority, a public trust, Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

325 P.3d 1

RURAL WATER, Sewer And Solid Waste Management District No. 1, Logan County, Oklahoma, an agency and legally constituted authority of the State Of Oklahoma, Plaintiff/Appellant,

v.CITY OF GUTHRIE, an Oklahoma Municipality and The Guthrie Public Works Authority, a public trust, Defendants/Appellees.

No. 109575.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma,

Division No. 1.

Oct. 25, 2013.

Certiorari Denied May 12, 2014.

Appeal from the District Court of Logan County, Oklahoma; Honorable Phillip C. Corley, Judge.

AFFIRMED.

Steven M. Harris, Michael D. Davis, S. Max Harris, DOYLE HARRIS DAVIS & HAUGHEY, Tulsa, Oklahoma, for Plaintiff/Appellant.

Andrew W. Lester, Johnny G. Beech, Carrie L. Williams, LESTER, LOVING & DAVIES, P.C., Edmond, Oklahoma, for Defendants/Appellees.

ROBERT D. BELL, Judge.

¶ 1 Plaintiff/Appellant, Rural Water, Sewer and Solid Waste Management District No. 1, Logan County, Oklahoma (Logan–1), appeals from the trial court's grant of summary judgment to Defendants/Appellees, the City of Guthrie and the Guthrie Public Works Authority (collectively, Guthrie), in this action to compel Guthrie to sell water to Logan–1. For the reasons set forth below, we affirm.

¶ 2 Logan–1 is an Oklahoma rural water district and agency of the State of Oklahoma. Guthrie owns or controls a water treatment plant and water distribution facilities. Logan–1 contended Guthrie has surplus treated water which it has wrongfully and repeatedly refused to sell. Thus, Logan–1 filed the instant lawsuit seeking a judicial order to compel Guthrie to sell Logan–1 its surplus water.

¶ 3 Both sides moved for summary judgment. Logan–1 argued Guthrie should be forced to sell its surplus water pursuant to 82 O.S.2011 § 105.21 and alleged Guthrie wrongfully denied Logan–1 access to an essential facility in violation of the Oklahoma Antitrust Reform Act, 79 O.S.2011 § 201 et seq. Both theories of recovery sought the compelled sale of water by Guthrie to Logan–1. Guthrie countered: § 105.21 applies only to stream water; Guthrie has discretion under 11 O.S.2011 § 37–120 to deny Logan–1's requests; pursuant to 82 O.S.2011 § 105.9, Logan–1 was required to first seek a permit from the Oklahoma Water Resources Board (OWRB) before filing suit; and Guthrie is exempt from antitrust liability pursuant to Fine Airport Parking, Inc. v. City of Tulsa, 2003 OK 27, 71 P.3d 5.

¶ 4 The trial court granted summary judgment to Guthrie. Specifically, the court held § 105.21 applies only to stream water and does not cover treated water for municipalities. It also held Logan–1 cannot show under the antitrust laws that it lacks suitable, available alternatives to purchase water. From said judgment, Logan–1 appeals.¹ This matter stands submitted for accelerated appellate review without appellate briefs on the trial court record pursuant to Rule 13(h), Rules for District Courts, 12 O.S.2011, Ch. 2, App., and Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S.2011, Ch. 15, App. 1. Pursuant to the parties' joint request, this appeal was stayed from January 24, 2013, through September 25, 2013, for unsuccessful settlement negotiations.

¶ 5 This Court's standard of review of a trial court's grant of summary judgment is de novo. Hoyt v. Paul R. Miller, M.D., Inc., 1996 OK 80, ¶ 2, 921 P.2d 350, 351–2. Summary judgment is proper when the evidentiary materials “establish that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” Shelley v. Kiwash Elec. Co-op., 1996 OK 44, ¶ 15, 914 P.2d 669, 674.

¶ 6 We first address Logan–1's argument that Guthrie was required by 82 O.S. § 105.21 to sell its surplus water to Logan–1. Logan–1 also urges the same statutory provision authorized it to seek judicial intervention without first trying to obtain relief from the OWRB. Section 105.21 states:

The owner of any works for the storage, diversion or carriage of water, which contain water in excess of his needs for irrigation or other beneficial use for which it has been appropriated, shall be required to deliver such surplus, at reasonable rates for storage or carriage, or both, as the case may be, to the parties entitled to the use of the water for beneficial purposes. In case of the refusal of such owner to deliver any such surplus water at reasonable rates as determined by the Board, he may be compelled to do so by the district court for the county in which the surplus water is to be used.

Guthrie asserts § 105.21 does not apply to the treated water in its system and, pursuant to 11 O.S. § 37–120, it has discretion to determine whether, when, to whom, and under what conditions it chooses to sell water.²

¶ 7 Section 105.21 is part of what is referred to as the “stream water use statutes,” 82 O.S. § 105.1–105.32. Messer–Bowers Co. v. State ex rel. Okla. Water Res. Bd., 2000 OK 54, ¶ 6, 8 P.3d 877, 879.³ As Guthrie maintains, and the trial court properly held, § 105.21 applies only to “stream water” and not to water that has been appropriated by or is in treatment facilities of a municipality. Further, if the water at issue was governed by the stream water use statutes, Logan–1 would have been required by 82 O.S.2011 § 105.9 to apply for and obtain a permit from the OWRB before being allowed to take the same. We find no error.⁴

¶ 8 With respect to Logan–1's second proposition, we hold Guthrie's waterworks are not subject to the Oklahoma Antitrust Reform Act. An analogous issue was addressed in Fine Airport Parking, Inc. v. City of Tulsa, 2003 OK 27, 71 P.3d 5. There, an off-airport parking operator sued the City of Tulsa and its airport public authorities, alleging their price-setting practices violated state antitrust laws. The Court began its analysis by noting the “two ostensibly conflicting enactments” of the Antitrust Reform Act and the Municipal Airports Act, 3 O.S. § 61 et seq.Fine at ¶ 24, 71 P.3d at 13. The “Antitrust Reform Act makes it unlawful for a person, including a municipality, to monopolize or attempt to monopolize any part of trade or commerce in a relevant market,” while “the Municipal Airports Act allows a municipality to operate and regulate parking facilities and fix the rate for parking services at the municipal airport....” Id.

¶ 9 After discussing general rules for resolving statutory conflicts and the purpose of the antitrust law, the Court continued:

In enacting the Municipal Airports Act, the Legislature authorized municipalities to plan, develop and operate public airports and declared these activities to be “public and governmental functions.” It also granted municipalities various powers, including the power to “fix the charges, rentals or fees for the privileges or services” at a municipal airport, and declared these powers to be exercised “for a public purpose, and matters of public necessity.” A reading of these provisions leads us to but a single conclusion—When a municipality operates an airport pursuant to the Municipal Airports Act, it is acting in a governmental capacity as an arm of the state to meet a public need and not solely for its own benefit.

Id. at ¶ 27, 71 P.3d at 13–4 (citations omitted). The Court concluded “that Tulsa's operation of an...