Supreme Court to county: No means no
Without issuing an explanatory written opinion, the Oklahoma Supreme Court summarily denied Kingfisher County’s latest petition for rehearing on the issue of produced water in temporary lines, likely the county’s last chance to revive its controversial ban.
The nine-member Court voted 6-3 to deny the rehearing petition, the same divided panel that has marked all three high court decisions in the lawsuit filed by the Oklahoma Oil and Gas Association, with justices Patrick Wyrick, Yvonne Kauger, James Winchester, James Edmondson, John Reif and Richard Darby voting against the county and Chief Justice Noma Gurich and justices Tom Colbert and Douglas Combs voting in favor of the rehearing.
OKOGA has since merged with the Oklahoma Independent Petroleum Association to become OIPA-OKOGA, the state’s largest oil and gas trade association which represents all the major producers operating in Kingfisher County.
Concerned about liability for the county and adjacent landowners in the case of a spill, commissioners voted last spring to amend the county’s permit form for temporary water lines to be laid in county rights of way to specifically exclude lines carrying produced water, which is brought up along with oil during the drilling process.
The ban drew the immediate attention of OKOGA and its member companies working in the county, who argued, among other things, that “produced water” also ecompasses recycled water and thus made that conservation process considerably more expensive.
After weeks of attempting to negotiate with the county, followed by more weeks of a media blitz urging the ban’s repeal, OKOGA filed its lawsuit in the fall.
Rather than going through typical legal channels and starting with a lawsuit in Kingfisher County District Court, OKOGA initiated its challenge in the Supreme Court, petitioning that Court to take the unusual step of assuming original jurisdiction and issuing a definitive ruling on the matter.
Based on briefs submitted by OKOGA, the county, OIPA (then a separate entity) and the state attorney general’s office, the Court agreed to assume jurisdiction and six justices affirmed a decision to overturn the county’s ban.
Among other things, the Court held that the Oklahoma Corporation Commission had exclusive jurisdiction over oil and gas matters, including the transportation of produced water, and the county’s ban unreasonably intruded on that authority.
The county filed a petition for rehearing taking the opposite position, that the Court’s ruling impeded the county’s statutory authority to regulate county roadways, including adjacent borrow ditches and other rights of way.
The Court granted the petition for rehearing in December but at the same time issued a second opinion again overturning the ban.
Because the Court specifically stated that its new ruling replaced the previous one, the county filed another petition seeking rehearing of the latest opinion earlier this month.
“Our brief requesting rehearing highlighted several questions about the Court’s initial ruling,mostly concerning the constitutionally-created county road system and the statutory right-of-way” District 3 County Commissioner Heath Dobrovolny said.
“It is unfortunate that the six members of the Court refuse to hear this issue in-depth, including hearing testimony and seeing evidence,” he added.
One of the elements of the county’s challenge to both rulings is that the Court acted without benefit of a full evidentiary hearing, including testimony and documentary evidence, that would have been available had the lawsuit been tried first in county court and then appealed through the normal legal process.
In a brief dissent to the Court’s second ruling overturning the ban, Justice Combs agreed with that point.