ANDREA COCHRAN GERARLD COCHRAN LOUANNA COCHRAN WILLIAM COCHRAN MELISSA FOREMAN SUZANNE MAUPIN VIOLA POWELL v. CHAU TRAN DONNA NGUYEN (2025)

1 Andrea Cochran, Gerald Cochran, Louanna Cochran, William Cochran, Melissa Foreman, Suzanne Maupin, and Viola Powell (Plaintiffs/Appellants) (collectively “the Protestants”) appealed the trial court's Order affirming the Oklahoma Water Resources Board's award of a Temporary Groundwater Permit to Chau Tran and Donna Nguyen (Intervenors/Appellees) (collectively “the Applicants”). The Protestants allege that Applicants did not satisfy the statutory requisites for a groundwater permit, and that the OWRB erred in issuing the Temporary Permit, allegedly in contravention of the relevant statutes and following a flawed administrative process. We find no underlying error, as the record contains substantial evidence confirming the OWRB sufficiently considered relevant evidence and complied with applicable procedures to, ultimately, approve the Temporary Groundwater Permit. Accordingly, the trial court's Order is affirmed.

BACKGROUND

2 This appeal arises from a contested groundwater permit application before the Oklahoma Water Resources Board. The Parties have been engaged in an on-going administrative proceeding and related litigation for now approximately eight years and this appeal represents the latest iteration of their procedurally complicated litigation history. The saga began on December 7, 2017, when the Applicants applied for a Temporary Groundwater Permit (Permit No. 2017-583) (“Temporary Permit”) with the OWRB to withdraw and use 50.00 acre-feet of groundwater for the Applicants’ concentrated poultry feeding operation.  ¹ After providing notice of the pending Temporary Permit, the Protestants, as neighboring property owners, formally protested the application. The Protestants argued the Applicants did not satisfy the OWRB's threshold criteria for a groundwater use permit in OAC 785:30-3-5(a), alleging the Applicants’ proposed use of groundwater did not constitute a “beneficial use” and would also result in waste by pollution.

3 While the Applicants’ Temporary Permit Application and the Protestants’ corresponding protest were pending before the OWRB, the OWRB issued an ex parte 90-day Provisional Temporary Groundwater Permit (“Provisional Permit”) to the Applicants on August 28, 2018, thereby allowing the Applicants to begin withdrawing groundwater for their poultry feeding operation. The OWRB subsequently granted multiple additional Provisional Permits, each of which went into effect the day after the prior Provisional Permit expired, effectively authorizing the Applicants’ continuous withdrawal prior to any formal consideration of the Temporary Permit application.

4 On March 28, 2019, the Protestants filed a Petition ² against the OWRB, alleging the OWRB's repeated issuance of Provisional Permits to the Applicants -- despite the Protestants’ timely protest of the pending Temporary Permit application -- violated due process, was arbitrary and capricious, was made upon unlawful procedure, and was affected by error of law. The Protestants, accordingly, sought to stay the enforcement of the Provisional Permits and prevent further groundwater use until the OWRB formally considered the Temporary Permit application. The Protestants, thereafter, filed a Motion for a Preliminary Injunction on May 24, 2019, so to enjoin the OWRB from issuing further Provisional Permits, citing the lack of notice and the inability to meaningfully defend their water rights from the OWRB's ex parte issuance of numerous Provisional Permits. The trial court ultimately granted the Protestants’ Motion, thereby enjoining the OWRB from issuing any additional Provisional Permits “until [Protestants] are provided an opportunity for hearing after the OWRB has adequately investigated [Protestants’] complaints.”  ³ Following several years of motion practice, the trial court entered a Journal Entry on April 8, 2022, wherein the trial court formally barred the OWRB from issuing multiple Provisional Permits for long-term use of water at any singular location. The trial court also directed the OWRB to “consider potential adverse water quality impacts resulting from the applied-for water use” by either “undertaking meaningful consideration of the relevant issues or by referring the matter to one of Oklahoma's other State Environmental Agencies for consideration.”

5 Concurrent with the litigation in Case No. CJ-2019-36 involving the OWRB's issuance of Provisional Permits, the Applicants’ Temporary Permit application remained in the OWRB's administrative queue until November 22, 2019, when an OWRB Hearing Officer conducted an evidentiary hearing, ultimately recommending the OWRB approve the Applicants’ Temporary Permit. On April 21, 2020, the Applicants’ Temporary Permit was issued by the OWRB notwithstanding the Protestants’ contention that the proposed groundwater use would impact water quality and would result in “waste” as defined by statute due to depletion of the aquifer and/or pollution of the aquifer. The Protestants, thereafter, filed a second Petition ⁴ before the Delaware County District Court in accordance with the Administrative Procedures Act on May 21, 2020, wherein the Protestants reiterated their objection to the OWRB's issuance of the Temporary Permit. The Protestants alleged that, during the administrative proceedings, the OWRB prevented the Protestants from presenting evidence about the ecological impact of the Applicants’ proposed groundwater use and denied Protestants’ request to subpoena employees from Oklahoma Department of Agriculture, Food, & Forestry (ODAFF).

6 On September 8, 2022, the trial court entered an Order in Case No. CV-2020-39, reversing and remanding the OWRB's grant of the Temporary Permit due to the OWRB's “failure to consider potential water quality impacts prior to permit issuance.” Specifically, the trial court noted the OWRB failed to involve or otherwise refer the matter to the ODAFF despite the Protestants’ request. The trial court found that the OWRB must make water quality considerations prior to issuing water use permits and that the OWRB's issuance of Permit No. 2017-583 “was based upon unlawful procedure and essential findings of fact were not made although requested.” The trial court, consequently, ordered the following:

11. Accordingly, Permit 2017-583 is reversed and remanded to the OWRB with direction that the OWRB undertake the necessary water quality review and/or that the matter be referred to the ODAFF for its consideration, prior to permit issuance.

12. Further, the OWRB is directed to allow Petitioners to involve ODAFF in the OWRB's administrative process for Permit 2017-583 because water quality considerations -- conducted either by OWRB or by ODAFF -- are a necessary element within the OWRB's permitting procedures.

On September 16, 2022, the Applicants filed a Motion to Vacate, Modify and/or Reconsider, which the trial court denied on November 15, 2022. The Applicants subsequently appealed. On December 19, 2022, the Supreme Court dismissed the appeal ⁵ as premature:

․ On the Court's own motion, this appeal is dismissed as premature. (citation omitted). The district court's September 8, 2022 order reversing and remanding the matter to the Oklahoma Water Resources Board for further proceedings and fact finding and the November 15, 2022 order denying Intervenors/Appellants’ motion to reconsider judgment did not finally determine the action, but instead leave the issues and claims between the parties to be resolved. (citation omitted).

Intervenors/Appellants will have the opportunity to seek review of the September 8, 2022 and November 15, 2022 orders in a timely and properly brought appeal from a final order of the district court, if any, after consideration of proceedings before the Oklahoma Water Resources Board on remand.

7 In compliance with the direction of the Supreme Court in appellate case No. 120,887, the matter returned to the OWRB rather than Delaware County District Court. On March 8, 2023, the OWRB Hearing Examiner entered a Notice of Hearing that set the matter for an evidentiary hearing on April 14, 2023. On March 27, 2023, the Protestants filed a Motion for Status Conference, Entry of Scheduling Order, and Resetting of Hearing, requesting the OWRB reset the scheduled evidentiary hearing and schedule a short status conference so to allow the parties to discuss discovery matters. The Protestants also filed (on March 27, 2023) a Motion for Issuance of Subpoenas for the Production of Books, Records, Papers, and Other Information, requesting the issuance of two (2) separate discovery subpoenas to both the OWRB and ODAFF for the production of documents concerning the Applicants’ proposed use of groundwater.  ⁶ In response, the Applicants objected to Protestants’ Motion to Reset the scheduled evidentiary hearing, contending the Protestants’ request was “without any legitimate basis” because “[t]he issues before the OWRB on remand are clear and should not require additional discovery.” On April 10, 2023, the OWRB Hearing Examiner denied both Protestants’ Motion to Reset the evidentiary hearing and Protestants’ Motion for Issuance of Subpoenas:

․ [T]he Applicants’ Objection represented, among other things, that “․ all parties conducted substantial discovery concerning the pertinent issues herein”, that “[t]he parties have litigated this matter for years and have conducted substantial discovery”, that “[t]he issues before the OWRB on remand are clear and should not require additional discovery”, and that “[r]esetting the evidentiary hearing would only delay this matter further and would result in additional and needless expense and delay”. Accordingly, the Protestants’ Motion for Status Conference lacks a legitimate basis for conducting additional discovery in this matter. As the Objection notes and represents the years of prior litigation in this matter with substantial discovery having already been conducted by all parties herein, there appears to be no need to conduct additional discovery herein. Accordingly, the issuance of subpoenas as requested in the separate, but replated Protestants’ Motion for Subpoenas for Records, is likewise without legitimate basis.

8 On April 14, 2023, the OWRB Hearing Examiner proceeded with the scheduled evidentiary hearing, during which four (4) witnesses testified: (1) Jason Tutkowski, OWRB Environmental Program Specialist IV in the Water Rights Department; (2) Robert Miller, Farm Manager of the Applicants’ poultry feeding operation; (3) Protestant Louanna Cochran; and (4) Dr. J. Burton Fisher, the Protestants’ expert witness on the subject of water pollution. Mr. Tutkowski testified to the OWRB's role in reviewing the Applicants’ Temporary Permit application, explaining the OWRB had not investigated the Protestants’ allegations that the poultry feeding operation led to water pollution because Mr. Tutkowski did not believe the Protestants had presented any evidence supporting such claims. Mr. Tutkowski further attested to the OWRB's limited jurisdictional authority to determine whether the Applicants’ poultry feeding operation specifically impacted water quality, noting that it was the OWRB's position that any inspection for waste by pollution was solely within the jurisdiction of the ODAFF. Nevertheless, Mr. Tutkowski confirmed neither he nor any other OWRB employee had referred the matter of alleged waste by pollution to the ODAFF. Mr. Tutkowski concluded that he recommended Temporary Permit No. 2017-583 be approved by the OWRB because he believed the Applicants proposed groundwater use satisfied the statutory directives of 82 O.S § 1020.9.

9 The Applicants’ singular witness, Robert Miller, briefly testified to his role and responsibilities as Poultry Farm Manager, generally attesting to the poultry farm's compliance with all ODAFF regulations. Mr. Miller explained that he hauled away all chicken litter in accordance with its ODAFF Nutrient Management Plan for Export of Poultry Waste (admitted as the Applicants’ only exhibit), but Mr. Miller did not provide specific testimony concerning water quality or quantity.

10 Louanna Cochran, as a neighboring property owner and one of the Protestants, testified to observing an increased water flow onto her property after the Applicants began operating their poultry feeding operation, noting she personally witnessed chicken feathers and chicken litter in the water runoff onto her land, which she described as smelling like chicken waste. Beyond Ms. Cochran's personal observations, she also submitted several exhibits including photographs depicting the water accumulation on both the Applicants’ property and her own property. Ms. Cochran also submitted two separate water tests conducted by the Cherokee Nation from well water samples on Ms. Cochran's property. The first water test which was performed in 2018 (before the Applicants moved chickens onto their property) and revealed no water safety issues, while the second test from 2019 (after the Applicants began their poultry feed operation) indicated both that the sample was contaminated with coliform bacteria and exceeded the level of “turbidity” deemed safe for human consumption. Ms. Cochran did not, however, provide testimony that she completed any further water tests after 2019, nor did she testify to personally disinfecting her water well after learning of the water contamination.

11 The Protestants’ expert witness, Dr. J. Burton Fisher, testified that the presence of coliform bacteria in Ms. Cochran's well water was likely the result of poultry waste runoff washing from the Applicants’ poultry farm into Ms. Cochran's property and, ultimately, flowing into the nearby Saline Creek. Although Dr. Fisher explained he had not personally conducted either water test, he had visited the Applicants’ poultry farm and utilized an electronic terrain conductivity survey tool to evaluate the geological features impacting water flow on the neighboring properties. Dr. Fisher attested that his survey revealed a series of cavernous features below the neighboring properties which may further enable the spread of pollutants from the poultry waste runoff into Saline Creek.

12 On July 18, 2023, the OWRB Hearing Examiner recommended the OWRB approve the Applicants’ Temporary Permit and issued a Findings of Fact, Conclusions of Law and Board Order, in which the OWRB Hearing Examiner included the following relevant factual findings:

10. Protestants’ Andrea Cochran, Gerald Cochran, Louanna Cochran, William Cochran, Melissa Foreman, Suzanne Maupin, and Viola Powell (collectively referred to as the “Protestants”), collectively submitted a protest to the [Temporary Permit] application. The Order was set for hearing on remand at the Board's principal office in Oklahoma City, Oklahoma, on April 14, 2023. It should be noted that the Protestants did not request the issuance of any hearing or trial subpoenas prior to the Hearing and none were issued by the Hearing Examiner or on behalf of the Board. (emphasis added)

․

62. (a) It is uncontested that OWRB Employee, Jason Tutkowski, OWRB Environmental Program Specialist IV in the Water Rights Department, testified that he conducted no investigation into the existence of any waste by pollution, that to his knowledge no one from the OWRB has conducted any such investigation, that it's the Departments’ [OWRB's] position that any inspection for waste by pollution from the Applicants’ poultry feeding operation (PFO) should be performed by ODAFF under its jurisdiction, that he has not referred the matter of alleged waste by pollution to ODAFF, and that he is not aware that anyone from the OWRB has referred the matter of alleged waste by pollution to the ODAFF. (emphasis in original)

․

74. (a) [․ ]

(d) In this hearing (as an administrative proceeding and hearing) and consistent with the Order, while the current OWRB hearing examiner did not include ODAFF as to the Protestants’ water quality concerns, the OWRB Hearing Examiner received no filed request or motion from the Protestants in this Hearing to include ODAFF in regards to the Protestants’ water quality concerns. (emphasis added) [ ․ ]

(n) In this Hearing (as an administrative proceeding and hearing) and consistent with the Order, the OWRB Hearing Examiner considered the potential adverse water quality impacts resulting from the proposed issuance of Temporary Groundwater Permit No. 2017-583, as raised and presented by the Protestants.

(emphasis added). The OWRB considered the Hearing Examiner's factual and legal findings during its August 15, 2023, Board Meeting and, following brief arguments by the parties’ attorneys, the OWRB adopted the Hearing Examiner's Proposed Order and issued Permit No. 2017-583.

13 On September 13, 2023, the Protestants filed a third Petition ⁷ pursuant to the APA in the Delaware County District Court, alleging the OWRB had not sufficiently considered the occurrence of waste by pollution as required by statute and that the issuance of the Applicants’ Temporary Permit was arbitrary, capricious, erroneous, and not in conformance with applicable law. Following oral arguments, the trial court entered an Order on October 11, 2024, affirming the OWRB's Order. The trial court found the OWRB's issuance of Permit No. 2017-583 satisfied the statutory requirement of 82 O.S. § 1020.9 and was otherwise free from prejudicial error. This timely appeal followed.

STANDARD OF REVIEW

14 An agency's order will be affirmed on appeal if the record contains substantial evidence in support of the facts upon which the decision is based and the order is otherwise free of error. Oklahoma Dep't of Pub. Safety v. McCrady, 2007 OK 39, 10, 176 P.3d 1194, 1201, as corrected on denial of reh'g (Sept. 17, 2007). The order is subject to reversal, however, where the reviewing court determines the substantial rights of the appellant have been prejudiced because the agency findings, inferences, conclusions, or decisions are: (a) in violation of constitutional provisions; (b) in excess of the statutory authority or jurisdiction of the agency; (c) made upon unlawful procedure; (d) affected by other error of law; (e) clearly erroneous in view of the reliable, material, probative and substantial competent evidence; (f) arbitrary or capricious; or (g) because findings of fact, upon issues essential to the decision were not made although requested. 75 O.S. § 322(1)(a)-(g); See also Leo v. Oklahoma Water Res. Bd., 2023 OK 96, 28, 536 P.3d 939, 949--50. On appeal from the district court review of an agency decision, we apply the same standard of review for error to the administrative record as does the district court. City of Bixby v. State ex rel. Dep't of Labor, 1996 OK CIV APP 118, 934 P.2d 364, 367. Furthermore, we will not re-weigh the evidence or substitute our judgment for that of the agency's on factual matters. Unibridge Sys., Inc. v. Patterson, 2017 OK CIV APP 32, 7, 396 P.3d 854, 856.

ANALYSIS

15 The Protestants asserted eight issues ⁸ in their Pet.-in-Error. From our review of the Pet.-in-Error, in addition to the matters argued in the Br.-in-chief, we gleaned three issues necessitating our resolution: (1) whether the OWRB erred in failing to comply with trial court's interlocutory Order of September 8, 2022, by not “undertak[ing] the necessary water quality review and/or [referring] the matter ․ to the ODAFF for its consideration, prior to permit issuance ․ [and whether it erred in not allowing] Petitioners to involve ODAFF in the OWRB's administrative process ․”; (2) whether the OWRB wrongfully deprived Protestants of discovery; and (3) whether the OWRB made sufficient water quality considerations prior to the issuance of the Applicants’ groundwater permit in accordance with the statutory directives of 82 O.S. § 1020.9. Based upon our review of the record and relevant authority, we find no underlying error, as the record contains substantial evidence confirming the OWRB sufficiently considered relevant evidence and complied with applicable procedures to, ultimately, approve the Temporary Groundwater Permit. Accordingly, the trial court's Order is affirmed.

Statutory Construction

16 The required OWRB findings for the approval of a groundwater permit, typically referred to as the “4 points”, are set forth in 82 O.S. § 1020.9. The central issue in this case, which impacts the resolution of each issue on appeal we must resolve, is the proper interpretation of the statutorily created “blinders” established by § 1020.9, as more fully outlined below. The clear language of § 1020.9 limits the authority of the OWRB to determine whether a proposed groundwater use will result in waste by pollution (as defined by § 1020.15(A)(7) (i.e. where “fresh groundwater polluted by minerals or other waste” leads to pollution in a “fresh water strata or basin”) in the event the proposed water use “is required to comply with rules and requirements of or is within the jurisdictional areas of environmental responsibility of the Department of Environmental Quality or the State Department of Agriculture, Food, and Forestry the Board ․”. The statute further directs that “[e]ach groundwater protection agency [․] shall be responsible for developing and enforcing groundwater protection practices to prevent groundwater contamination from activities within their respective jurisdictional areas of environmental responsibility”. 82 O.S. § 1020.9(A)(2)(c). The full text of the relevant portions of § 1020.9, states as follows:

A. 1. Before the Oklahoma Water Resources Board takes final action on an application, the Board shall determine from the evidence presented, from the hydrologic surveys or reports and from other relevant data available to the Board and applicant, whether:

a. the lands owned or leased by the applicant overlie a fresh groundwater basin or subbasin,

b. the use to which the applicant intends to put the water is a beneficial use,

c. waste as specified by Section 1020.15 of this title will occur, and

d. the proposed use is likely to degrade or interfere with springs or streams emanating in whole or in part from water originating from a sensitive sole source groundwater basin or subbasin as defined in Section 1020.9A of this title.

2. The Board shall approve the application by issuing a regular permit, if the Board finds that:

a. the lands owned or leased by the applicant overlie the fresh groundwater basin or subbasin,

b. the use to which the applicant intends to put the water is a beneficial use,

c. waste specified by Section 1020.15 of this title will not occur. When determining whether waste will occur pursuant to this subparagraph, if the activity for which the applicant intends to use the water is required to comply with rules and requirements of or is within the jurisdictional areas of environmental responsibility of the Department of Environmental Quality or the State Department of Agriculture, Food, and Forestry the Board shall be precluded from making a determination whether waste by pollution pursuant to paragraph 7 of subsection A of Section 1020.15 of this title will occur as a result of such activity. Each groundwater protection agency, as such term is defined by Section 1-1-201 of Title 27A of the Oklahoma Statutes, shall be responsible for developing and enforcing groundwater protection practices to prevent groundwater contamination from activities within their respective jurisdictional areas of environmental responsibility, and

d. the proposed use is not likely to degrade or interfere with springs or streams emanating in whole or in part from water originating from a sensitive sole source groundwater basin as defined in Section 1020.9A of this title.

(emphasis added). See also OAC 785:30-3-5(a) & (e).

17 In approaching the required task of statutory construction presented in this case, we note that “this court must give [statutes] ․ an interpretation consistent with the plain meaning of the words employed, the context in which the words are used, and the subject to which they refer.” City of Stillwater v. Cent. Rural Elec. Co-op., 1997 OK CIV APP 51, 4, 945 P.2d 505, 507. See Tate v. Browning-Ferris, Inc., 1992 OK 72, 833 P.2d 1218, 1228 (“[t]o ascertain legislative intent we look to the language of the pertinent statute. Statutory words are to be given their ordinary sense except when a contrary intention plainly appears”); Hill v. Board of Education, District I-009, Jones, Oklahoma, 1997 OK 107, 944 P.2d 930, 931 (“[t]he fundamental rule of statutory construction is to ascertain and, if possible, give effect to the Legislature's intention and purpose as expressed in a statute”).

18 Our consideration of the statutory language in 82 O.S. §§ 1020.9 & 1020.15 is guided by the Oklahoma Environmental Quality Act's allocation of jurisdictional authority to the state's various environmental agencies. 27a O.S. § 1-1-101, et. seq. Enacted in 1992, the Act's purpose was “to provide for the administration of environmental functions which will: (1) [p]rovide that environmental regulatory concerns of industry and the public shall be addressed in an expedient manner; (2) [i]mprove the manner in which citizen complaints are tracked and resolved; (3) [b]etter utilize state financial resources for environmental regulatory services; and (4) [c]oordinate environmental activities of state environmental agencies. 27A O.S. § 1-1-102. The intent of the Legislature undoubtedly was to divide administrative responsibilities amongst the various environmental agencies -- each of which would bear its own specialized knowledge -- so to allow comprehensive and efficient collaboration in the state's environmental regulation activity.  ⁹ Compare Matador Pipelines, Inc. v. Oklahoma Water Res. Bd., 1987 OK 65, 10, 742 P.2d 15, 20 (Summers, J., dissenting) (“[t]he above statute is a legislative mandate stating that the Oklahoma Corporation Commission and the [OWRB] must work together with the common interest of preventing pollution to the waters of the State of Oklahoma. It is clear in reading all the above statutes together that it was anticipated by the Legislature that it would be necessary for the Corporation Commission to call upon the expertise of other state agencies from time to time in dealing with certain instances of pollution.”).

19 The specific statutory language at issue in this case as added to 82 O.S. § 1090.9 in 2001. See 2001 Okla.Sess.Laws, Chp. 330, § 1. This limiting language was added following the 2000 decision of the Oklahoma Supreme Court in Messer-Bowers Co., Inc. v. State ex rel. Oklahoma Water Res. Bd., 2000 OK 54, 8 P.3d 877. Messer-Brown, addressed water runoff from a large hog farm operation in Woodward County, Oklahoma, estimated to “house 142,000 pigs.” Id., at 4. “The Water Board limited its inquiry into waste by pollution to the construction and operation of [the] ․ wells and water distribution system. It held that jurisdiction to determine the potential for pollution as a result of the ․ lagoons ․ were outside its jurisdiction and within the purview of the State Department of Agriculture ․”. The Oklahoma Supreme Court reversed the OWRB and stated, in part, that:

Nothing in the Act provides that the Department of Agriculture has exclusive jurisdiction which prevents the Water Board from granting a groundwater permit on a finding that the mixing of fresh groundwater with animal waste and its use of effluent for irrigation will not cause waste by pollution. The Act specifically made the Water Board's jurisdictional responsibility for pollution of groundwater in addition to that otherwise provided by law. This includes the directives contained in the Texas County opinion concerning waste by pollution. Further, the text of the Act evidences an intent that the Water Board and the Agriculture Department have concurrent environmental jurisdiction over livestock facilities which require water permits․ On remand, the Water Resources Board is directed to receive evidence and make findings of fact to determine whether waste by pollution will occur through all uses of groundwater at Kronseders swine facilities, including the spread of effluent from its swine operation onto its land․

Id., at 18 (emphasis added). See Oklahoma Water Res. Bd. v. Texas Cnty. Irr. & Water Res. Ass'n, Inc., 1984 OK 96, 20, 711 P.2d 38, 46 (“[i]nasmuch as it is the duty of the Board to protect against waste of ground water by depletion, as well as waste of ground water by pollution, a consideration by the Board of waste in this context is mandatory.”). In response to the Messer-Brown decision, the Legislature amended §§ 1020.9 & 1020.15.

20 A reasonable construction of §§ 1020.9 & 1020.15, is that, under the facts of this case, the determination of “waste by pollution” is within the exclusive jurisdiction of the ODAFF and that, as a consequence, the OWRB was precluded from looking at that issue for purposes of the elements set forth in 82 O.S. § 1020.9, in this matter. See 2 O.S. §§ 10-9.1, et seq. (outlining the duties of the ODAFF concerning poultry feeding operations). While we acknowledge the obvious “give and take” represented by the language of §§ 1020.9A(1)(c) & (2)(c), demanding a finding on the one hand, yet precluding the same finding on the other hand, the plain meaning of the statutory text not only demands this result, it also possibly avoids inconsistent results by the separate agencies in the event they continued to have dual responsibility on this issue.

Interlocutory Order of the Trial Court in the Initial APA Appeal

21 The Protestants argue that the OWRB was bound to follow the interlocutory order of the trial court dated September 8, 2022, in Case No. CV-2020-39. We disagree. The Supreme Court's Order of December 19, 2022 (in appellate case No. 120,887), specifically stated that the trial court order of September 8, 2022, “did not finally determine the action ․”. In the initial APA appeal, the trial court held, in part, that the OWRB failed to involve or otherwise refer the matter to the ODAFF and/or to “undertake the necessary water quality review and/or that the matter be referred to the ODAFF for its consideration, prior to permit issuance.” However, as a consequence of the Supreme Court's Order of December 19, 2022, the September 8, 2022, Order remained, at all times, an interlocutory order. See Matter of Est. of Nation, 1992 OK 91, 834 P.2d 442, 444, corrected (July 29, 1992) (“[a]n interlocutory decision is one made in advance of judgment. It is not appealable unless it (a) falls within a class of interlocutory orders appealable by right ․”); Liberty Bank & Tr. Co. of Oklahoma City v. Rogalin, 1996 OK 10, 12, 912 P.2d 836, 839 (“interlocutory orders are not binding on the trial court when fashioning the final adjudication of a controversy.”). Additionally, the settled law of the case doctrine does not apply because the rulings made by the trial court in the initial APA appeal were not finally determined on appeal. See H.B. Krug v. Helmerich & Payne, Inc., 2015 OK 74, 9, 362 P.3d 205, 210 (“[t]he settled-law-of-the-case doctrine bars from relitigation issues finally determined by an appellate court in the review process or those that the aggrieved party has failed to raise in the course of the appellate contest.”). See Shoemaker v. Est. of Freeman, 1998 OK 17, 15, 967 P.2d 871, 875 (“[t]he settled-law-of-the-case doctrine bars relitigation of issues that have been settled by a previous appellate opinion in the same case.”). The unique aspect of this case is that, upon remand, the OWRB acknowledged the trial court's ruling in the initial APA appeal, made a ruling, and then, in the second APA appeal, the trial court affirmed the actions of the OWRB and reached an opposite result from the initial APA appeal. Notwithstanding the fact that the two successive APA appeals were heard by different trial judges, their differing rulings certainly were not conducive to judicial economy. On the other hand, we see no cause to reverse or remand this case based on the rulings made by the trial judge on September 8, 2022, in the initial APA appeal.

Denial of Discovery Subpoenas Duces Tecum

22 The Protestants argue that the OWRB wrongfully denied their request for the issuance of discovery subpoenas duces tecum. We find no error in the Hearing Examiner's ruling in this regard. Title 75 O.S. § 315, authorizes a state agency to issue discovery subpoenas duces tecum in an individual proceeding.  ¹⁰ The Hearing Examiner entered an Order on April 10, 2023, denying the requested subpoenas duces tecum upon the finding that the request “lacks a legitimate basis for conducting additional discovery in this matter ․” and, in reliance on the representation by Applicants, further found that there had been “years of litigation in this matter with its history of substantial discovery having already been conducted by all parties hereto.” We review rulings on discovery-related issues under an abuse of discretion standard of review. Malloy v. Caldwell, 2011 OK CIV APP 26, 12, 251 P.3d 183, 185 (“[a] trial court is accorded broad discretion in deciding discovery matters, and its determination in such matters will not be disturbed absent a finding of abuse of discretion or that the decision is contrary to law.”). Moreover, the requested subpoenas duces tecum were directed at the ODAFF and the OWRB and, in general, sought all correspondence and records related to the files of the ODAFF and its communications with the OWRB concerning the Applicants. In light of our holding herein that, under the facts of this case the determination of “waste by pollution” is within the exclusive jurisdiction of the ODAFF and that, as a consequence, the OWRB was precluded from looking at that issue for purposes of the elements set forth in 82 O.S. § 1020.9, it is reasonable to conclude that the requested documents were not “necessary and proper for the purposes of ․” this case. Thus, we find no abuse of discretion in the Hearing Examiner's denial of the requested subpoenas duces tecum.

Factual Determinations Made by OWRB

23 The Protestants argue that the OWRB failed to conduct meaningful determinations prior to the issuance of the Applicants’ groundwater permit in accordance with the elements set forth in 82 O.S. § 1020.9. On August 15, 2023, the OWRB adopted the Findings of Fact and Conclusions of Law that had been issued by the Hearing Examiner on July 18, 2023. That filing consists of 42 pages extensively detailing the evidence that had been admitted during the hearing on April 14, 2023, together with the litigation history of the case. Significantly, after reviewing the evidence in the record, the Hearing Examiner determined that each of the elements in § 1020.9 had been satisfied:

A The ownership of the land was not challenged at the hearing. However, the Hearing Examiner made a specific finding that the Applicants provided evidence of their right to take groundwater from the identified land. See Proposed Findings of Fact No. 61 and 75(a), (b), and (c).

B. It was determined that the lands owned or leased by Applicants overlie the Boone and Roubidoux groundwater basins. See Proposed Findings of Fact No. 61 and 62(b(, and (c).

C. Although the beneficial use was not challenged at the hearing, the evidence established that the Applicants’ proposed agricultural use (poultry farm) for a poultry feeding operation meets the definition of beneficial use. See Proposed Findings of Fact No. 61, 64, 65, 66, & 77.

D. The evidence did not indicate that putting groundwater to the beneficial use of agricultural use (poultry farm) for a poultry feeding operation in compliance with statutes and rules would cause waste by depletion. See Proposed Findings of Fact No.76, 77 & 78.

E. There was no evidence presented that waste by pollution would occur by the granting of this application. See Proposed Findings of Fact No. 79(a), (b), and (c).

24 We, therefore, find that the record here contains substantial evidence in support of the facts upon which the decision is based and the order is otherwise free of error. See Kline v. State ex rel. Okla. Water Res. Bd., 1988 OK 18, 7, 759 P.2d 210, 214 (“[t]he standard of review in Oklahoma under the Administrative Procedures Act is that of substantial evidence and further that the findings should not be reversed unless they are clearly erroneous.”); 75 O.S.1981, § 322.

CONCLUSION

25 Based upon the foregoing analysis, we find no underlying error, as the record contains substantial evidence confirming the OWRB sufficiently considered relevant evidence and complied with applicable procedures to, ultimately, approve the Temporary Groundwater Permit. Accordingly, the trial court's Order is affirmed.

FOOTNOTES

1.   “A temporary permit is not tantamount to a regular permit in that the statute provides it must be revalidated annually.” Lowrey v. Hodges, 1976 OK 132, 24, 555 P.2d 1016, 1024.

2.   Cochran et. al. v. Okla. Water Res. Bd., Case No. CJ-2019-36, Delaware Cnty. Dist. Ct.

3.   On February 19, 2020, the Applicants filed an interlocutory appeal of the trial court's grant of injunctive relief. Okla. Sup. Ct. Case No. 118,726. The Applicants’ appeal, however, was dismissed by the Supreme Court due to the Applicants’ failure to timely file a Notice of Completion of Record in the appellate proceedings. Mandate was, thereafter, issued on September 30, 2020.

4.   Cochran et. al. v. Okla. Water Res. Bd., Case No. CV-2020-39, Delaware Cnty. Dist. Ct.

5.   Our review of the OSCN Docket in connection with Protestants’ first APA appeal to the Delaware County District Court (CV-2020-39) coupled with the Supreme Court's subsequent Order dismissing the Applicants’ appeal as premature (Sup. Ct. Case No. 120,887), indicates that one claim in the first APA appeal (i.e., Case No. CV-2020-39), remains pending: i.e., the claim that HB 1480 (i.e., 2001 Okla.Sess.Laws, Chp. 330, § 1) is an unconstitutional special law. This appeal, however, is from the Protestants’ second APA appeal which was initiated from the administrative proceedings that followed the Supreme Court's Order in Sup. Ct. Case No. 120,887. This second APA appeal may proceed because it was not joined with and is independent from the first APA appeal. As such, nothing in this Opinion should be read to resolve the ongoing challenge by the Protestants in CV-2020-39, nor do we make any ruling concerning the remaining issues before the Delaware County District Court in that case.

6.   The Protestants requested the issuance of two Subpoenas Duces Tecum, requesting the production of documents on April 10, 2023, at the offices of counsel for Protestants in Tulsa, Oklahoma.

7.   Cochran et. al. v. Okla. Water Res. Bd., Case No. CV-2023-155, Delaware Cnty. Dist. Ct.

8.   The Protestants asserted the following eight (8) issues in their Pet.-in-Error:1. Does the Oklahoma Water Resources Board err in issuing a groundwater permit if it only considers the “four points” identified within 82 O.S. § 1020.9?2. Must the Oklahoma Water Resources Board exercise and implement its Water Quality Standards Implementation Plan when considering and approving contested water permits?3. Must the Oklahoma Water Resources Board consider the volume of water at issue within a contested groundwater permit in relation to the applicant's stated needs?4. Are agricultural uses exempted from Oklahoma prohibitions against the “waste” of groundwater, as that term is defined by statute?5. Did the Oklahoma Water Resources Board err by not involving the Oklahoma Department of Agriculture, Food & Forestry in the contested permit process when applicant proposed to use the water within its concentrated poultry operation?6. Did the Oklahoma Water Resources Board err by denying Appellants discovery within the administrative proceedings after the District Court ordered the same?7. What state environmental agency -- if any -- is responsible to consider water-quality concerns arising from contested groundwater permit applications?8. What state environmental agency -- if any -- is responsible to consider water-quantity concerns arising from contested groundwater permit applications?

9.   While we acknowledge the statutorily stated goal of “collaboration” that is embodied in the OEQA, the impact of 87 O.S. §§ 1020.9 & 1020.15, is to clearly bar any determination of “waste by pollution” by the OWRB when jurisdiction on that issue has been firmly establish within the ODAFF. See 2 O.S. §§ 10-9.1, et seq. (outlining the duties of the ODAFF concerning poultry feeding operations). Consequently, as occurred in this case, the OWRB, at best, merely reviewed the face of the application to evaluate the issue of “waste by pollution” because jurisdiction on that issue has been statutorily placed on the ODAFF. See Rath v. LaFon, 1967 OK 52, 4, 431 P.2d 312, 314 ([w]e are bound by the rule expressed in Hamrick v. George, ․ [1962 OK 247, 7,] 378 P.2d 324, and other cases, which is as follows: ‘The presumption is that the legislature expressed its intent in a statute and that it intended what is expressed.’ ”).

10.   Title 75 O.S. § 315A, states as follows: “A. 1. The agency conducting any individual proceeding or investigation shall have power to require the furnishing of such information, the attendance of such witnesses, and the production of such books, records, papers or other objects as may be necessary and proper for the purposes of the proceeding or investigation.2. The agency, or any party to a proceeding before it, may take the depositions of witnesses, within or without the state, in the same manner as is provided by law for the taking of depositions in civil actions in courts of record. Depositions so taken shall be admissible in any proceeding affected by this act. Provided, however, all or any part of the deposition may be objected to at time of hearing, and may be received in evidence or excluded from the evidence by the agency or individual conducting the hearing in accordance with the law with reference to evidence in this act or with reference to evidence in courts of record under the law of the State of Oklahoma.B. In furtherance of the powers granted by subsection A of this section, any agency, administrative head, hearing examiner or any other duly authorized member or employee thereof, upon its own motion may, and upon the request of any party appearing in an individual proceeding shall:1. Issue subpoenas for witnesses;2. Issue subpoenas duces tecum to compel the production of books, records, papers or other objects, which may be served by the marshal of the agency or by any person in any manner prescribed for the service of a subpoena in a civil action; or3. Quash a subpoena or subpoenas duces tecum so issued; provided, prior to quashing a subpoena or subpoenas duces tecum the agency shall give notice to all parties. A subpoena or subpoenas duces tecum may not be quashed if any party objects.” (emphasis added).

THOMAS E. PRINCE, JUDGE:

GOREE, P.J., and SWINTON, J., concur