Heldermon v. Wright

I. ISSUES

T1 The dispositive issue in this case is whether under title 82, section 105.5, the plaintiffs should have given the Oklahoma Water Resources Board (OWRB) notice in the district court of this suit. We find that title 82, section 105.5 of the Oklahoma Statutes requires the OWRB be given notice and remand with directions to proceed accordingly.

II. FACTS AND PROCEDURAL HISTORY

T2 The defendant, Danny Wright, owns seventy-two acres of land in Caddo County. Wright began building a dam on an unnamed stream on this seventy-two acres without first applying to the OWRB for a water appropriation permit or seeking the OWRB's approval of the dam. 1 The unnamed stream *857 flows northward in Caddo County, Oklahoma, through the properties of the Heldermons and the Denny Lee Hight and Jana Harris Hight Family Trust (together "plaintiffs", as well as the Lee property, 2 and feeds into the South Canadian River. None of the parties assert that they have an OWRB permit to appropriate water from the stream, and therefore, we assume for purposes of this opinion both the plaintiffs' and the defendant's rights to the unnamed stream water are as riparians. 3

1 3 When the plaintiffs discovered the construction, they filed a petition in the district court seeking to enjoin further construction on the dam. The trial court granted the plaintiffs a temporary injunction until Wright obtained an OWRB permit to construct the dam. Wright then filed an application with the OWRB for the approval of the dam. In his application, Wright stated the permanent pool storage capacity of the reservoir formed by the dam as 700 acre feet 4 with a surface area of fifty-four acres, or 75% of the seventy-two acres that he owns and the dam's purpose as "recreation, fish, and wildlife." The application also showed the reservoir is expected to yield a flow of 1000 gallons of water per minute.

T4 Title 82, section 105.2(A) of the 2001 Oklahoma Statutes allows a riparian without an OWRB appropriation to store a maximum of a two-year domestic-use supply of water, and title 60, section 60 requires a riparian collecting the water for domestic use to provide for the continued natural flow of the stream. OWRB rule 785:25-3-7(a)(3), 5 in ef-feet at the relevant time, provided the formula for determining Wright's two-year domestic-use water needs. Applying the formula, the OWRB determined Wright's "normal domestic water supply" for two years under regulation 785:25-3-T7(a)(8) to be twenty-three acre feet of water. Pursuant to OWRB rule 785:25-8-T(a)(3), the OWRB required an additional release pipe be added to the proposed dam's construction at a point where all water in exeess of the twenty-three acre feet could be released. After the OWRB issued the permit allowing Wright to build the dam with the additional pipe, the plaintiffs recast the issue as one to determine their and Wright's competing rights to the unnamed stream's water. 6

15 In the pretrial order, the plaintiffs alleged (1) that they are entitled to "their historic, natural stream flow," 7 (2) that they are entitled to "reasonable use" of the stream water under Franco-American Charolaise, Ltd. v. Oklahoma Water Resources Bd., 8 or (3) that they are entitled to "domestic use" of the stream water as defined by title 82, *858 section 105.1(2) 9 and the related OWRB rules and regulations. In the pretrial order, Wright contended (1) that under Franco, American Charolaise, so long as the plaintiffs fail to show that they are substantially harmed by his use of the water, his use is reasonable; (2) that the plaintiffs' rights to the stream water is limited to domestic uses as defined by title 82, section 105.1(2); and (8) that he should only be required to release the amount of water necessary to meet the plaintiffs' actual domestic needs. Both the plaintiffs and defendant asserted positions in the pre-trial order which bring the constitutionality of title 60, section 60 and Oklahoma Stream Water Use Laws 10 into question.

T6 At trial, the plaintiffs presented expert evidence in support of a 500 to 750 gallon a minute release of stream water. Wright's expert witness posited that a release of 208 gallons a minute would be sufficient to meet downstream riparian's domestic uses. A letter to the OWRB in support of the dam application stated that "a valve will be regulated to provide 500 gallons per minute stream flow downstream."

T7 The district court found that under title 82, §§ 105.1 and 105.14 and the OWRB rule 785:20-1-2 Wright must release a minimum of 515 gallons per minute of water for downstream riparian owners to have enough water for their domestic use. The Court of Civil Appeals found the trial court, by determining that 515 gallons per minute of flow was nee-essary to meet the plaintiffs' domestic needs, had considered uses exceeding those statutorily allowed and ruled that title 82, §§ 105.1A and 105.2(A) are unconstitutional under Franco-American Charolaise. 11 The Court of Civil Appeals nonetheless affirmed the trial court's judgment on other grounds. This Court granted certiorari.

III. FRANCO-AMERICAN CHARO-LAISE, LTD. v. OKLAHOMA WATER RESOURCES BOARD

T8 In 1990, this Court issued its opinion in Franco-American Charolaise." 12 This Court determined, among other things, (1) riparian land owners had vested common-law rights to the prospective reasonable use of stream water, even though the use was uninitiated, so long as they did not materially or substantially injure other riparian owners, 13 (2) the 1963 amendments to Oklahoma's stream water law 14 were constitutionally inadequate because they did not expressly abrogate this common-law riparian right, 15 and (8) to the extent the 1963 amendments 16 abolished or failed to preserve a riparian's common-law right in the prospective reasonable use of stream water without compensation, they violated article 2, section 24 of the Oklahoma Constitution. 17

T9 An analysis of the 1968 amendments can be found in Franco-American Charolaise. 18 For the purposes of this opinion, it is sufficient to understand that the 1963 amendments were the Legislature's initial attempt to provide a comprehensive system of stream water use by reconciling Oklahoma's two incompatible systems: the appropriative sys *859 tem and the riparian system. 19 In an effort to remedy the constitutional infirmities set out in Franco-American Charolaise, the 1998 Legislature amended the Oklahoma Stream Water Use Law. 20 The 1998 amendment, unlike the 1963 amendments, explicitly abrogated the common law by expressing the legislative intent "to extinguish future claims to use water, except for domestic use, based only on ownership of riparian lands." 21

IV. PROCEEDINGS BEFORE THIS COURT

T10 After this Court granted certiorari in this case, the Attorney General filed a brief, several entities were granted leave to file amici curiae briefs, and the defendant filed a supplemental brief arguing that the current Oklahoma Stream Water Use Law is constitutional. In their supplemental brief, the plaintiffs contend that the resolution of the constitutionality of the current Oklahoma Stream Water Use Law is unnecessary here, but they assert it is unconstitutional under Franco-American Charolaise and article 2, section 24 of the Oklahoma Constitution. After studying the briefs and the parties' contentions, we are convineed the cause should be remanded to remedy procedural deficien-cles in the proceedings below.

V. TITLE 82, SECTION 105.5 OF THE 2001 OKLAHOMA STATUTES

1 11 We focus on the procedures articulated in title 82, section 105.5. Section 105.5 allows a person to bring suit in district court if the person's rights to use stream water as defined by title 60, section 60 are impaired. 22 Title 82, section 105.5 also provides: "[The Attorney General shall intervene on behalf of the state in any suit for the adjudication of rights to the use of water if notified by the [Oklahoma Water Resources] Board that the public interests would be best served."

112 Our primary goal in construing a statute is to ascertain the intent of the Legislature. 23 If the legislative intent is clear from a statute's plain and unambiguous language, this Court need not resort to rules of statutory construction. 24 If a statute's language is ambiguous, this Court may re *860 sort to rules of statutory construction to determine the Legislature's intent. 25

T 13 By providing in title 82, section 105.5 that the OWRB may notify the Attorney General of a suit to adjudicate stream water rights, the Legislature clearly anticipated and intended that the OWRB will have notice of such a suit even though the requirement and method for giving notice is omitted. This legislative intent is also discernible from the statewide comprehensive plan to oversee the use and protection of the public's interest in stream water. 26 In its effort to protect this public interest, the Legislature has provided for the OWRB's involvement in all aspects of stream water use from the Oklahoma Dam Safety Act 27 to appropriation of stream water. 28

114 After the legislative intent is ascertained, this Court may supply the language to give the statute the force and effect that the Legislature intended. 29 Applying the language necessary to carry out the legislative intent, we construe title 82, section 105.5 to require the party seeking to adjudicate its rights to stream water, generally the plaintiff, to give the OWRB notice of the suit. The OWRB is then responsible for determining if the public interests would be best served by the Attorney General's intervention in the suit. Once the OWRB makes the determination of the public interests and gives notice to the Attorney General, the Attorney General must intervene in the suit. 30

{15 Generally, the public interests will best be served by the Attorney General's intervention in suits over rights to stream water.

[Flew public interests are more obvious, indisputable, and independent of particular theory than the interest of the public of a state to maintain the rivers that are wholly within it substantially undiminished, except by such drafts upon them as the guardian of the public welfare may permit for the purpose of turning them to a more perfect use. This public interest is omnipresent wherever there is a state, and grows more pressing as population grows. 31

VI. CONCLUSION

116 Unquestionably, the Legislature intended that Oklahoma's interest in stream water be protected by the OWRB's involvement in suits to determine riparian or appro-priative rights to use stream water. Because the Legislature intended that the OWRB be notified of suits involving rights to use stream water and that the State be allowed to intervene in a suit to protect its interest in preserving the waters within its borders, we find that the trial court erred when it proceeded to determine the rights of the parties without proof that the OWRB received notice of the pending suit. Having found the trial court procedure to be flawed, we save for another day the issue of the constitutionality of the Oklahoma Stream Water Use Law. The Court of Civil Appeals' opinion is vacated, the district court's judgment is reversed, and the case is remanded to the trial court for proceedings to be consistent with this opinion.

COURT OF CIVIL APPEAL'S OPINION VACATED; DISTRICT COURTS JUDGMENT REVERSED; REMANDED.