Summary of a Recent
Judicial Development in
Water Law

Failure to Notify Oklahoma Water Resources Board
of Stream Adjudication Results in Remand

L. Paul Goeringer
National AgLaw Center Research Associate

Summary of Decision

In Heldermon v. Wright, 152 P.3d 855 (Okla. 2006), the Oklahoma Supreme Court held that section 105.5 of title 82 of the Oklahoma Statutes required the plaintiffs to give notice to the Oklahoma Water Resources Board (OWRB) of the suit in district court. Because the district court had determined the rights of the parties without first giving notice to the OWRB, the court reversed the district court's decision. The court avoided the question of the constitutionality of the Oklahoma Stream Water Use Law because of the procedural defect from the failure to notify the OWRB. The case was remanded back to the district court.

Background

Wright, the defendant, built a dam on an unnamed stream that cut through his property. Id. at 856. Wright built the dam without first notifying the OWRB to obtain a water appropriation permit or approval for the dam. Id. The unnamed stream flowed downstream through the plaintiffs' properties. Id. at 856-57. None of the parties had appropriative permits granted by the OWRB. Id. at 857.

Plaintiffs filed a petition in district court for a temporary injunction, and they were granted a temporary injunction until Wright received a permit from OWRB. Id. The defendant applied for a permit for dam approval from OWRB. Id. Because Oklahoma law only allowed a riparian user without an appropriative permit to store a two-year domestic supply, the OWRB required excess water that would be stored in the dam to be released. Id.

Plaintiffs continued their suit in district court after the dam approval had been given. Id. The issue addressed by the suit was the determination of competing rights in the stream. Id. At trial, both parties presented expert testimony on the amount of water that should be released. Id. at 858. The district court agreed with the testimony of the plaintiffs' expert and required releases of water in line with the expert's testimony. Id. Wright appealed, and the Oklahoma Court of Civil Appeals upheld the decision of the district court, but it declared portions of the Oklahoma Stream Water Use Laws unconstitutional under prior decisions of the Oklahoma Supreme Court. Id. The Oklahoma Supreme Court granted certiorari. Id.

Arguments

At trial, the plaintiffs argued:

1) that they [were] entitled to "their historic, natural stream flow," (2) that they [were] entitled to "reasonable use" of the stream water under Franco-American Charolaise, Ltd. v. Oklahoma Water Resources Bd., or (3) that they [were] entitled to "domestic use" of the stream water as defined by title 82, section 105.1(2) and the related OWRB rules and regulations.
Id. at 857-58 (footnotes omitted).

At trial, Wright argued:

(1) that under Franco-American Charolaise, so long as the plaintiffs fail[ed] to show that they [were] substantially harmed by his use of the water, his use [was] reasonable; (2) that the plaintiffs' rights to the stream water [was] limited to domestic uses as defined by title 82, section 105.1(2); and (3) 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 [brought] the constitutionality of title 60, section 60 and Oklahoma Stream Water Use Laws into question.
Id. at 858 (footnotes omitted).

The Attorney General also filed a brief after the state supreme court granted certiorari, arguing that the Oklahoma Stream Water Use Law was constitutional. Id. at 859.

Analysis and Holdings

The court first noted its decision in Franco-American Charolaise, Ltd. v. Oklahoma Water Resources Board, 855 P.2d 568 (Okla. 1990) and discussed the 1993 amendments to the Oklahoma Stream Water Use Law. Id. at 858-59. The court avoided the question of their constitutionality by remanding the case to the district court to cure the procedural defects. Id. at 859.

Section 105.5 of title 82 of the Oklahoma Statutes "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." Id. Section 105.5 also provides that "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." Id. (citations omitted). The court then turned to the intent of the legislature, and examined whether the "legislative intent [was] clear from a statute's plain and unambiguous language . . . ." Id. If the intent was not clear, then the court would need to turn to rules of statutory construction to determine the legislative intent. See id. at 859-60.

The court found the legislative intent to be clear and unambiguous. Id. at 860. The court found it clear that the legislature, in section 105.5, provided that the OWRB would be notified of suits to adjudicate water rights because the legislature had provided that the OWRB would notify the Attorney General of stream adjudications. Id. Finding the legislative intent clear, the court stated,

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.
Id. (footnotes omitted).

Because the district court had failed to give notice of the stream adjudication to the OWRB, the court remanded the case back to the trial court, and avoided the constitutionality question. Id.

The case was decided on November 21, 2006.