DuLaney v. Oklahoma State Department of Health

DuLANEY, Harris, Elizabeth A. C. Sue Misuse, Inc., Against Land

Citizens corporation, Rodg- non-profit

Oklahoma Most, McSpadden,

er and Alta Trustee Trust, McSpadden Appellees, the M.R. DEPARTMENT OKLAHOMA STATE HEALTH, the Oklahoma

OF State Health,

Board of and Six-Hart Services Resources, Inc., cor- Oklahoma

poration, Appellants. 70498, 70524.

Nos.

Supreme of Oklahoma. Court

Sept.

Rehearing Denied March Dalton, Jr., Tulsa, T.

Andrew Elizabeth A. Harris, Claremore, appellees. for Wofford, City, Michael C. OMahoma appellant, Dept. OMahoma State Health Johnsen, Roy D. Goodpaster, James D. Tulsa, Claremore, Mayberry, K. ap- Jack Resources, pellant, Six-Hart Services and Inc.

KAUGER, Justice. single presented issue whether, party applies when a permit-to operate pursuant Legislature effectively a solid waste site issues. The obliterat Rood, ed Stewart v. 2258.2,1 adjacent O.S.Supp.1983 land to 63 (Okla.1990) v. 251st St. mineral interest are enti owners and owners with the en tled to notice and an However, § actment of 63 O.S.1991 1-2415. adjacent find that landowners heard.2 We the instant before the because cause arose are entitled to and mineral interest owners amendment, Stewart and effective date of the opportunity in an notice аnd an to be heard hereby to the extent overruled proceeding pursuant to individual conducted hold that § permit 3093 before a landfill have O.S.1981 June, express view on the The 1. The instant cause was initiated in 1987. no claims. time, operative royalty At that the statute was 63 landowners and interest owners filed two providing: § O.S.Supp.1983 appeal. 2258.2 motions to dismiss the Those motions permit disposal argued applicant are denied. The first motion that the "An for a new site, filing upon application judgment. the of the with the trial court's order was not a final We Department, give by publica- disagree. judgment declaring permit shall one a invalid A newspapers proposed the holding applicable agency fatally tion in two local to rules and disposal opportunity oppose the site of to grant permit to is flawed and insufficient sub- by granting permit requesting of such a formal ject to our The second motion to dismiss review. (30) thirty public meeting. If within calendar questions authority of Health’s the Commissiоner days publication of the of such notice the De- ruling. appeal to the trial court's adverse Pursu- partment any person receives from notice of 1-106, O.S.Supp.1987 § ant to 63 the Commis- request public opposition and for a formal sioner of Health is broad administrative op- meeting, it shall hold the same and allow rules, regulations enforce duties to execute and presentation portunity and oral for of written adopted Health. and standards the Board of meetings may Such be held in the views. Department the chief executive As of Health’s Department offices of the Oklahoma State of officer, authority to issue the Commissioner has pro- at a location convenient to the Health or Management permits under the Solid Waste Act. posed disposal requested the written site if 2260(5). duty § [This O.S.1981 now falls meeting.” request for such pursuant upon Department Health to 63 the of 2258.2 has been revised and amended. Section 1-2418(A)(5).] Department of O.S.1991 The sought precisely provides the relief It now for authority the to issue the contested Health has pro- court. 63 O.S.1991 district permit promulgated under the rules the Board pertinent part: vides in standing The Commissioner has to of Health. 1, 1990, Beginning September "... B. appeal. (30) thirty days public of the date the within- meeting (90) days ninety or within is held pertinent 3.Title 75 O.S.1981 309 application if publication the notice of part: meeting requested, any person public no "(a) of a business or proceeding, parties who is a resident or owner In an individual all county proposed land in the site, be afforded an shall may adjacent county, who suffer or of an notice. after reasonable damage of the con- (b) as result environmental shall include: The notice site, operation have shall time, struction and (1) place and nature of a statement of participate request in a hear- hearing; party to an individual administrative as a (2) legal authority juris- a statement of the permit appli- permit. The proceeding on the hеld; hearing is to be under which the diction (3) party. Parties shall cant shall also be particular sections of a reference to the present the De- evidence show involved; and and rules statutes (4) making Department its partment, and the plain of the matters statement a short decide, application will whether decision party agency is un- If the or other asserted. Solid Waste requirements of the meets the Management at the time the matters in detail able to state regulations Act and the served, may be the initial notice the notice is proceeding shall Health. The State Board of involved. a statement of issues limited to provisions of the pursuant to the be conducted upon application a more definite Thereafter Act. Procedures Administrative be furnished. statement shall and detailed shall not provisions of this section C. The parties (c) Opportunity afforded all shall be any pend- any pending applications affect argument present evidence and respond and procedures ing litigation to the related involved....” on all issues permits be- Department has issued which July amended effective 309 was Section September 1990." fore virtually identi- prior version of the statute The special except that amendment cal to the 1992 royalty interest evidence and access to provisions are made for which court alleged in the trial errors owners re- proceedings way oral in which Because tribunal. were not addressed issues, preserved. we corded on these did not rule the trial court trial-type hearing include a constitutionally protected interest suffi —individual prior ceeding pursuant to 75 O.S.1981 309 notice and cient — permit. of a landfill to the issuance permit will issue. before a landfill be heard summary judgment. All moved for RELEVANT FACTS ruling for the landowners and for mineral interest owners on their motion of a action arises from the issuance This summary judgment, the trial court found appellants, Oklahoma permit landfill was invalid. (Departmеnt Health Department of State finding was based on the failure of the Board Health) Board of and the Oklahoma State identify proper parties of Health rules to Health) (Board appellant, Health permit in granting the of a landfill contest (Six- Resources, and Inc. Six-Hart Services proceeding conducted under the an individual Hart). Department of Health issued a The appeals Act. The Administrative Procedures turning after down the permit to Six-Hart Department the of Health of Six-Hart and collectively referred to as the ad- appellees’, joint consolidated for resolution. have been (C. DuLaney, Eliza- jacent landowners’ Sue the in effect at the time We note that statute Harris, Against Land Mis- beth A. Citizens O.S.Supp.1983 challenge lodged, was Most) use, Inc., Rodger and the mineral 2258.2,5 § provide not for an individual did (Alta MeSpadden, trustee of interest owners’ permit’s proceeding challenge is- Trust), request MeSpadden for an the M.R. effectively Legislature obliter- suance. The evidеntiary hearing. Rood, ated Stewart v. June, (Okla.1990) v. 251st St. an ac- the mineral interest owners filed with the en- Department against in district court tion § of 1-2415. The cur- actment 63 O.S.1991 Health, Health, the Board of and Six- of statutory specifically provides rent scheme brought pursuant The action was Hart. proceeding pursuant to be conducted for a judgment provision declaratory of pro- Act in all the Administrative Procedures Act Administrative Procedures Oklahoma September ceedings begun after 1990.6 (Administrative Act), Procedures AND MIN- ADJACENT LANDOWNERS § The land- O.S.Supp.1987 306.4 ERAL ARE INTEREST OWNERS sought a owners and mineral interest owners AND AN ENTITLED TO NOTICE promulgated by the judgment declaring rules IN BE HEARD OPPORTUNITY TO by the Board of Health and administered PROCEEDING AN INDIVIDUAL chal- Department of Health invalid. The PURSUANT TO 75 O.S. CONDUCTED promulgated passed lenged rules were § A LANDFILL 309 BEFORE authority of the Oklahoma Solid under the PERMIT ISSUES. (Solid Management Act Waste Man- Waste Act), and the mineral seq. 2251 et The agement 63 O.S.1981 their failure to interest owners assert challenged rules were for their The oppose disposal perti- of O.S.Supp.1987 site 4. Title 75 part: granting permit requesting a formal nent (30) may validity applicability thirty a rule public meeting. "A. The or calendar If ‍​‌‌​‌​‌‌​‌‌‌​​‌‌​​‌​‌​‌‌​‌​‌‌‌‌​‌​‌‌​​​​​‌‌‌‌​‌‌‍within declaratory determined in an action for be days the De- publication of the of such notice county judgment in the district court of the any person residing partment or receives from or, seeking person relief at of the the residence the doing business in Oklahoma written notice county option person, where- of such in the opposition request public for a formal sought applied, if it is in the rule is op- meeting, hold the same and allow it shall rule, application alleged the or its threatened portunity presentation written and oral impairs, or threatens to interferes with meetings held in the views. Such privi- impair, legal terfere with or Department of the Oklahoma State offices of leges plaintiff...." of the at a location convenient to Health or provides: O.S.Supp.1983 2258.2 Title posed disposal requested the written site if applicant permit "An for new mеeting.” request for such site, upon filing application give publica- Department, one shall 1-2415, 1, supra. see note 63 O.S.1991 6.Title newspapers proposed local to the tion in two A. adversely by the affected interests will be permit to Six-Hart. of a landfill issuance RIGHT OWNERS’ MINERAL INTEREST arguments based present The landowners AN AND OPPORTUNI- TO NOTICE odor, traffic and upon potential pollution, air BE HEARD. TY TO pollution groundwater safety problems, —in- Depart permit granted The un- cluding groundwater used them and pursuant to the Health to Six-Hart ment of property de- derlying property , and— Act authorized the Management Waste Solid premised Their claims are also valuations. land for a solid waste of 125 acres of use area’s for the decline of the on a concern hold The mineral interest owners landfill. pro rights underlying general gas aesthetics and environment. the oil and posed landfill site. argue that issuance royalty interest owners oil interfere with the will prospect land to to enter directly proposed gas rights оwned under ownership gas is an for and to take oil upon nearby property. in the Based site and interest owners and lessees right.8 Mineral exploration. with these The au for interference entitled to conduct thority explore gas for oil and extends to rights, land- property-oriented The interest owner’s lessee. the mineral royalty insist the interest owners owners and ingress egress and and right includes surface oppor- they are entitled to notice and an that authority occupy the surface pro- tunity through an individual to be heard necessary exploring reasonably extent ceeding pursuant to 75 O.S.1981 conducted marketing gas.9 The interest and the oil and permit a landfill issues. 3097 before right,10 in the nature of a and estate is servient to the dominant surface Department The of Health and Six-Hart gas purpose of oil and mineral estate for statutory nor a constitu- argue that neither a development.11 holding support the of a tional basis exists to process Minimum standards of due рroceeding. They process individual due proceedings, require administrative Rood, 321, P.2d rely upon v. 796 Stewart directly adversely and affect le which (Okla.1990) sharply divid- which 333-335 interests, protected preceded by gally be no ed Court held that provide knowledge calculated to of the tice constitutionally protected interest suffi- adjudicative oppor power and an exercise opportunity notice and an cient to tunity petroleum engineer heard.12 A be permit a landfill will issue. be heard before testified that use of the surface as a landfill hereby v. disagree and overrule Stewart We problems would create numerous for oil and (Okla.1990) Rood, 321, and 796 P.2d 333-335 exploration, development recovery. gas 1270, Sharp v. 810 P.2d 251st St. engineer The enumerated a number of fac they to the extent that hold potential problems. tors as He indicated have no constitu- 1) presence that: of the landfill would to re- tionally protected interest sufficient impair ingress egress, potentially 2) to be heard quire hazards; notice and an operating produc increase gas byproduct permit sanitary issue. tion of methane before a landfill will —a 3, Co., Turley Flag-Redfem supra. v. see note Oil see note 10 at 11. 7. Title 75 O.S.1981 135, supra. Sanders, Corp. v. 734 P.2d 1290-91 8. Anschutz (Okla.1987). Petroleum, Harry R. Carlile Trust v. Cotton Til 12. cert, Co., Id.; (Okla.1986), denied, Phillips 591 P.2d v. Petroleum Hinds P.2d 483 U.S. (Okla.1979). 107 S.Ct. 97 L.Ed.2d 738 and 483 U.S. 97 L.Ed.2d 764 Co., Flag Turley Oil 782 P.2d v. —Redfem Co., (1987); Cate v. Archon Oil Cloud, (Okla.1989); Co. v. Davis Oil (Okla.1985). (Olda.1986). P.2d necessary constitutionally might impair adequate procedures. the use of Once landfills — 4) technology; process applies, the landfill was an it is determined that exploration necessary drilling question direct process unstable surface for becomes what is due. 5) methods; Here, pollution of oil sand or inquiry is answered 75 O.S.1981 314(a).16 underground sources under the landfill water It for an individual activity possible drilling taking ceeding from site was conducted under the Administrative clay place through required pursuant liner. The Procedures Act to 75 O.S.1981 underground pollution 809.17 system supported by water was evidence engineer specialty

presented a civil B. hydrology. ADJACENT LANDOWNERS’ RIGHT TO permit granted by Depart AND AN NOTICE OPPORTUNITY ment of Health allows the use of the surface HEARD. BE TO may impair recog in a manner estate which property rights arguing inapplica nized and well-defined Rather than Rood, Stewart bility mineral interest owner. Due re 333- (Okla.1990), quires the mineral interest owner be landowners at tempt distinguish contest it on the basis that presented by at the administrative level.13 issues the instant cause were not discussed in the Stewart opinion. clauses of the United States14 Be provide questions adja Oklahoma15 Constitutions cause the referred to life, liberty that certain cent substantive landowners were not addressed — court, deprived except trial will not be reviewed here.18 —cannot inequitable ing necessary Id. It would be at best ludi- would remain under the 1992 crous at least if we were not to extend due amendment. owners, process protection to mineral interest 309, 3, Legislature, light § proper- supra. when the even in of the Title 75 O.S.1981 see nоte owner, rights ty argument any of the mineral interest Six-Hart's that has constitutional protections public meeting vided certain to the surface owner to be heard was satisfied See, through damages. prior granting permit the award held of surface 52 of the and the § opportunity provide supplemental O.S.1991 318.3. information Department unpersuasive. of Health is Const, 14, § provides perti- Although 14. U.S. amend. process 1 the due clause does not man- part: procedures universally nent applicable date inflexible situation, every imaginable process the due any "... No State shall make or enforce law clauses of both the federal and Oklahoma consti- abridge privileges which shall or immuni- require tutions at a minimum notice and a hear- States; ties of citizens of the United nor shall ing prior permit to the issuance of the in the case life, any deprive person liberty, State of See, Lopez, of mineral interest owners. Goss v. law; property, without due nor 565, 578-79, 729, 736-37, 419 U.S. 95 S.Ct. 42 deny any person jurisdictiоn within its 725, (1975); L.Ed.2d 737 Short v. Kiamichi Area equal protection of the laws.” 7, Vocational-Technical School Dist. No. 761 Const, cert, provides: (Okla.1988), denied, 15. The Okla. art. 7 P.2d 489 U.S. 109 S.Ct. L.Ed.2d 103 811 life, person deprived liberty, “No shall be (1989) and 489 U.S. 109 S.Ct. 103 property, without due of law." (1989). Only through L.Ed.2d 811 such a hear- 314(a) provides: 16. Title 75 O.S.1981 would the mineral interest owner be able to experts proponent cross-examine for the denial, grant, "When the or renewal of a li- permit to determine if all the substantive required preceded by cense is to be notice and requirements Department of the of Health had hearing, provisions of this been fulfilled. concerning proceedings apply.” act individual 314(A) July Section was amended effective provides: 1992. It now argued 18. Some of the landowners that their "Except specifically provided by as otherwise yards permit residences were within 500 law, statutory the issuance or denial of a new license site. Certain to indi- proceeding." shall not an having occupied individual viduals yards an residence within 500 necessity opportu- Because the of notice and an O.S.Supp.1986 of a new landfill site 63 nity hearing decision, constitutionally for a is based on 2258. Since the trial court’s 2258 protected rights, proceed- appears individual has been amended. It now at 63 v. State Con- Instead, rulings in three federal cases —Fusco to revisit our we choose cert, (2d necticut, Cir.1987), F.2d Sharp v. 251st St. Stewart (Okla.1991). denied, P.2d 484 U.S. (1987); Historic Dist. L.Ed.2d 105 BAM Stewart, majority recognized in (2d Cir.1983); Koch, 723 F.2d 233 Ass’n entitled to landowners would be Surles, F.Supp. and Mehta v. proceeding, con- participate in an individual (S.D.N.Y.1989). these None of cases Proce- pursuant to the Administrative ducted placement of a landfill volved the Act, required if another source of law dures Instead, living quarters. Fusco and BAM preceded by notice agency’s action placement of a homeless shelter involved hearing. The Stew- neighborhood setting; Mehta con- in a acknowledged the source also art Court location of a home for the mental- cerned the statutory or constitutional. of law could be ly qualitative There is a difference retarded. Sharp noted that no The Stewart and Courts placement group of a home between requiring hearing statutory source existed neighborhood, and the infusion of waste with pursuant to of a before the issuance ecological If a resident of a potential harm. Management Act. That is the Solid Waste group creates a disturbance or defaces home longer the law Oklahoma. Section surrounding property, problem tempo- specifically provides 1-2415 of the Act now Here, adja- rary easily corrected. any person “... who is a resident or alleged harm which cent landowners have county land in the owner of a business or cannot be corrected either the arrest or site, proposed disposal or of an offending party byor suppression of the adjacent county, who suffer environ- application paint. of a coat of Thеir concerns damage mental as a result of the construc- include the for harmful contami- operation site, tion and shall ground air and in water nates both the request participate in a odor, underlying property, de- party to an individual admin- as valuation, safety arising hazards —all proceeding permit.” istrative on from the landfill site. prop- for the Stewart and also stand nor the osition that neither United States Center, Ferry Disposal In Brown’s Waste Oklahoma constitutions vest land- Trent, (Ala.1992), 611 228 Inc. v. So.2d any legally recognized interest owners with Supreme the Alabama Court held that unless mandating application of due opportunity hearing an for a is notice and principles. portion The of the Stewart and by of a afforded citizens affected the award Sharp opinions relating right to the to statu- site, disposal for a solid contract waste tory Legis- has been overruled doing, void. In so the Brown’s contract is revisit, overrule, Today, lature. we the Ferry court found that citizens have a vital portions opinions holding adjacent that of the wastes, interest in the ‍​‌‌​‌​‌‌​‌‌‌​​‌‌​​‌​‌​‌‌​‌​‌‌‌‌​‌​‌‌​​​​​‌‌‌‌​‌‌‍of solid in the constitutionally protect- landowners have approved disposal, and in the site for requiring opportu- ed interest notice and an awarding right operate contract a nity hearing of for before issuance a facility. findings The in Brown’s Fer- landfill permit. Sharp essentially landfill Because upon recognition princi- ry are based a upon dispositive relied Stewart as of the is- ple procedural process, protected that here, presented reasoning sue we discuss and of the constitutions of United States of Stewart. Alabama, opportunity requires notice and an liberty, finding liberty proper-

In when one’s life that no interest was to be heard by gov- granting ty threatened of the landfill interests are about to be affected Stewart, permit upon the Court relied ernmental action.19 Inc., 1-2414, Serv., N.J.Super. O.S.Supp.1992 provides 153 379 and it for cer- Indus. Waste rights (1977) court, stating tain of residents whosе homes come within Jersey [New A.2d 479 permit one-half mile of the site. procedures act did that the state’s administrative hearing, provide held that where not a to a parte County, 19. Ex Lauderdale 565 So.2d property township direct did not claim that (Ala.1990). also, Application 627 See Modem of

683 party citizenry a must be afforded to whose Whether a has health, use, drinking largely water action is a contest an administrative be affected the location of a landfill site. However, question of law.20 the trend is overrule Stewart doing, specifically In so we enlargement people of the class of toward an Rood, (Okla.1990) v. 796 P.2d 333-335 may protest administrative action.21 who v. 251st St. 810 P.2d highest recognized This nation’s court has 1270,1273 they that to the extent well-being, that aesthetic and environmental hold that have no con- prosperity, important like in economic stitutionally protected interest sufficient gredients quality of life in our socie opportunity notice and an ty.22 Legislature recog The Oklahoma has heard before a landfill will issue. concept damage” of “environmental nized the in its amendment to the Solid Waste Man Our conviction that agement allowing Act those in close property may substantially whose affected proximity proposed dumping to a site to have by the installation of landfill site have hearing.23 opportunity concept for a process right to notice and in the due sense flexib supported by statutory of be heard is enact- the Stewart Court. Title agree Supreme ignored by le.24 We Alabama ments Court that notice and 60 O.S.1991 construction, operation purposes using of its own were affected of a same on for skill, township ordinary taking solid waste station in but re- transfer care and reasonable other, upon purported experienced by precautions lied difficulties . to sustain land of citizens, township prop- giving previous its lacked sufficient reasonable notice erty process principles. interest to invokе due other of his intention to make excava- opinion citizenry might infers that the tions." see, protections.]. been entitled to such But E. & argument today’s opinion The dissent's Bd., Hauling, E. Inc. v. Pollution Control fringes upon teachings Turley Flag- v. 821, 823, Co., (Okla. I11.2d 89 IlI.Dec. 481 N.E.2d Oil Redfem (1985). 1989) unpersuasive. Turley, surface owners argued were entitled to notice and an State, R.R. Co. v. Missouri-Kansas-Texas opportunity to be heard before additional wells (Okla.1986); P.2d National Motor Club upon could be drilled the surface estate. This Bd., Oklahoma v. State Ins. (Okla.1964). required Court held that notice not under was 1) those circumstances for two the sur- reasons: "aggrieved party” face owner was not an within Processing Org. 21. Association Data Serv. 113; 2) meaning of 52 O.S.1981 sur- 150, 155, 827, 830, Camp, 397 U.S. estates, purposes gas develop- face of oil and also, Annot., (1970). L.Ed.2d See ment, are servient to the dominant mineral es- Citizen, Association, “Standing Private Or- presented factually tate. The cause here is dis- ganization to Maintain Action in Federal Court Here, tinguishable Turley. from Injunctivе Against Relief Commercial Devel- given statutory right landowners are to notice. Activities, High- opment or or Construction of appears specifically It in 60 O.S.1991 66 which ways, Projects, Alleged or Other Governmental to provides are to entitled Parks, be Harmful to Environment in Public Oth- "previous reasonable notice” of the intent to Areas, Refug- er Similar Recreational es,” or Wildlife Additionally, make excavations. there is no 556, (1972). A.L.R.Fed. 562 11 long-standing recognition adja- that landowners cent to a land site have interest in Challenging Regula- v. Students United States property rights their subservient to those of their Procedures, 669, 685-86, tory Agency 412 U.S. 93 law, neighbors. gas In the realm of oil it (1973). S.Ct. 37 L.Ed.2d 268-69 long recognized has been that the surface estate mineral estate for is servient to dominant 1-2415, 6, supra. § 23. Title 63 O.S.1991 see note Co., Turley Flag-Redfem purposes. certain v. Oil note, Walker, Evolving supra; this B. "The Dom- Shorewood, See, Village Inst, v. 704 F.2d Reed Estate,” inance of the Surface 34 on Oil & (7th Cir.1983). 948 Sellers, (1983); Gas L. & Tax’n 128 L. or, is the Estate? “How Dominant Dominant provides: Inst, 25. Title 60 O.S.1991 66 Revisited,” Damages Surface 13 on Oil & Annot., (1962); & “What owner is entitled to the Gas L. Tax'n 377-78 "Each coterminous Reasonably Necessary subjacent support Use of the which his land Constitutes lateral Owner, land, adjoining subject a Mineral Surface of Leasehold receives from Lessee, adjoining or Driller an Oil & Gas Lease or of the owner of the land to under Contract," (1973). Drilling proper 53 A.L.R.3d 25 and usual excavations on the make drilling operations, presented that which have the to lateral and subjacent adjoining from support received owners are entitled to en- mineral interest states, specifi- site, property. potentially The same statute gage in on the landfill could ambiguity, cally, clearly, and without supply ground water contaminate —the adjoining property com- excavation on before underlying land- supply same mences, entitled landowner property they use for owners’ and which “previous reasonable notice.” The rec- to drinking problem purposes. It is a which finding that will suрports a excavation ord explained. must be These landowners’ wa- Here, landfill site.26 is the occur on the property requires interest alone ter-related statutorily required ‍​‌‌​‌​‌‌​‌‌‌​​‌‌​​‌​‌​‌‌​‌​‌‌‌‌​‌​‌‌​​​​​‌‌‌‌​‌‌‍provision not re- given notice and an reasoning majority in the vealed in a outcome participate to whose Stewart. constitutionally protected could affect rights.28 incongruous protect It would be if convinced that Even we were not gas ignore oil and interests and rights landowners had constitutional of fresh water. If we continue to do require application tection sufficient so, price to hold of a will exceed process, we would be constrained barrel water that, presented, land price under the facts these oil.29 of a barrel of opportu owners are entitled to notice and an property nity to be heard. are Water CONCLUSION important part are an of the landown which Minimum standards of due of sticks.”27 The use and con ers’ “bundle may proceedings that administrative publici is a matter of trol of fresh water directly adversely legally protect affect

juris, local, national, and of immediate preceded by ed interests be notice calculated commodity concern. No affects international adju provide knowledge of the more exercise and concerns the citizens of Oklahoma Here, groundwater. power dicative and an than fresh evidence was 0524) also, Carver, (OSDH Sludge Management, Bulletin See Wellsville Oil Co. Okla. 3.0.10, 2, 1987). (1952). (April p. It is also not P.2d ignore argue that we should sufficient pertinent 27. Title 60 O.S.1991 did not cite 60 issue of notice because part: O.S.1991 66. For us to do so in this cause merely perpetuate the errors of Stewart v. would "A. The owner of the land owns water stand- Rood, (Okla.1990) thereon, flowing over or under its sur- St. v. 251st forming face but not a definite stream....” (Okla.1991). Charolaise, Ltd. v. Oklahoma Franco-American Bd., Water Resources 855 P.2d 568 expert hydrological 26.The was asked about a reissued, 13, 1993); Sax, (Readopted Aрril J. ground technique protecting water in the Constitution, Property Rights "The and the Fu- pertinent questions area. The and answers are: Law,” of Water U.Colo.L.Rev. ture (1990). technique? "Q. What would be the arguendo forestry Assuming that there is on the pits A. To excavate to the bottom of bring time, site, adjoining adja- fill, lines the landfill up it back with lifts of six inches at it, cent landowners have another just you compact the liner. as do subject process protection. terest to due Title 60 (sic) you Okay.1 Q. On those area where provides: § 68 O.S.1991 bridging pits filled in that had water in not partly "Trees whose trunks stand on the land you just got pit a—it's a area them but belong area, of two or more coterminous owners you spools in that then and there is mine them in common.” ground- excavate down to two foot above the liner, you clay and do water level construct Having process princi- that due 28. determined you settling there will be there? think question ples applicable, "process due” is Yes, A. sir.” 16, 314(a), answered 75 O.S.1981 see note baсkhoes, depositions Other refer to use supra, concerning procedure and discussion in graders property. bulldozers and on owners, 9-10, pp. relation to the mineral interest Department permitting process sanctioned supra. of Health and the Board of Health also refers depth cells used for landfill sites. Those Kerr, Land, happened depth eight See R. to a feet or less in 29. This has before. cells are limited Water, 3, (Fleet Publishing p. perpendicular Wood & Ch. Co. measured to the work- thickness 1960). ing Regulations Governing Solid Waste & face. SIMMS, LAVENDER, V.C.J., and prosperity, than economic heard.30 No less SUMMERS, JJ., HARGRAVE, concur well-being are and and environmental aesthetic part. in quality part in and dissent ingredients of the important essential society. This has the in Court of life our V.C.J., LAVENDER, concurring part, in and both the will responsibility to exercise part: dissenting A good earth. to conserve the wisdom con- allow redress for which would decision mineral interest owners I concur the While only after interеsts stitutionally protected them property interest which entitles have a damaged rights irreparably would those were part of the process I dissent from that to due Both mineral responsibility. not reflect adjacent land- majority opinion which holds property owners whose and interest owners constitutionally protected owners have by a solid waste may be affected residences process clauses right based on the due facility legally management CONST, CONST, 2, § 7 and U.S. art. OKLA. n ap- protected sufficient and an amend. to notice XIV guaran- process privileges plication of due granted landfill before a and Oklahoma teed the United States31 overruling of neighbor and to the to their However, reaching Constitutions.32 Rood, 796 P.2d 321 Stewart v. mineral interest owners conclusion that Inc., Sharp v. 251st Street are entitled to landowners (Okla.1991), to the extent those P.2d 1270 heard, recognize opportunity to be we and an right exists. constitutional cases held Constitution, itself, pro- that the Oklahоma good public policy for the Athough may be it fide, separate, adequate and inde- vides bona Legislature to allow landowners to rest our pendent grounds upon which statutory right hearing, public to a others a holding.33 be set policy in this area should Court, guise under the suggestion Legislature, we not this decline Six-Hart’s We man- mandate. Under its prospective. of a constitutional completely make our decision unwisely direct, majority and without basis not a collateral date the action here is a constitutionally protect- range attack, expands the were not pursued because and, in process area interests in the due rights. Neither ed granted their constitutional effect, equita- settled tort law nor the Con- transforms Constitution the United States swords into constitutional delineate ble remedies of the State of Oklahoma stitution are allowed opinions. judicial Our which effective date of neighbor’s overseer of in the immedi- become the today effect decision prop- cutting the use of cause, property, down appellate and certiorari cases ate all may, allegation that use erty merely on the pipeline, prospectively appellate future, cause unspecified time man- at some after the issuance of all future cases doing majority makes so the them harm. date.34 the reach of due as to several mistakes AFFIRMED. explain I below. principles which will cess adjoin- held OPALA, we HODGES, C.J., In both Stewart ALMA nearby were not entitled WATT, JJ., concur. WILSON Petroleum, counterpart. v. Ball Jani- Black see with its federal Harry Cotton R. Carlile Trust v. Co., 510, (Olda.1986); Serv., Inc., note supra; Oil see Cate v. Archon note torial supra. Egbert, Okla. Drilling Co. v. McKeever (1935). Const, 1,§ su- see note U.S. amend. pra. 51, 57, Louisiana, S.Ct. U.S. v. 34.Shea Const, 2, § see note art. 32. The Okla. (1985); United 84 L.Ed.2d supra. 537, 562, Johnson, 457 U.S. States 202, 2594, (1982); 2579, Mackey 222 73 L.Ed.2d 1032, 1042, 103 Michigan Long, 463 U.S. v. 33. 675, States, 667, 91 S.Ct. 401 U.S. v. United (1983). 1214 77 L.Ed.2d S.Ct. (1971); 1160, 1164, Const, Schepp 410 28 L.Ed.2d clause, art. process the Okla. due Our Hess, (Okla.1989). 39 sweep that is coextensive a definitional has potentiаl polluting from hearing prior to issuance of a landfill fresh water strata to a rights that the water of sur- neighbor to under State or fed- effects legally rounding property owners were not invaded process principles no eral due because protected proceeding, but were there- recognized interest of such landowners was permit. in. Id. at 453-454. We held such a situation granting of such a invaded Stewart, 383-335; Sharp, proper involved a and lawful exercise of the 796 P.2d at (i.e. duty protect rulings police power in left P.2d at 1273. ‍​‌‌​‌​‌‌​‌‌‌​​‌‌​​‌​‌​‌‌​‌​‌‌‌‌​‌​‌‌​​​​​‌‌‌‌​‌‌‍Our these cases pollution), open possibility in the fresh water from which did not for remedial relief rights damages implicate process the due of those form of should the landfill cause injunctive nearby sought protected. injury or owners landowner relief, including ability to obtain Stewart, Sharp County merely and Texas accepted equita- generally latter relief under govern- recognition exhibit a that where the principles ble should the landfill be found licensing proceeding in or ment a similar anticipatory particular at a be an nuisance directly rights legal not affect the does probably permitted location or that it would nearby property deprive owners or them of pollution nearby in result of water sources life, any constitutionally protected interest Stewart, 2; P.2d at f.n. landowners. liberty property, procedural process due or view, my In Sharp, 810 P.2d at 1275-1276. principles simply implicated. not See correctly decided Stewart and were Center, Nursing O’Bannon v. Town Court jurisdic- remain the law in this should 65 L.Ed.2d 506 U.S. S.Ct. tion. (1980) (nursing home residents have con- fallacy majority’s hearing central in the rea- stitutional to a before a state or may soning agency is that it revoke the home’s au- as to federal recognize licensing process, thority provide nursing di- them care at fails to land, person’s though government expense rected as it is to another even the revoca- direct, may patients, implicate not substantial tion bе harmful to some includ- does way any property ing present nursing and immediate interests of loss of their home O’Bannon, subject facility). relying to constitutional care on the Le- Cases, 457, 551, protection gal process at the administrative Tender Wall 79 U.S. (1870), 457, 551, Only process recognized if level. the administrative L.Ed. 287 depriving process always clause has un- directed toward landown- been life, liberty referring only appropri- ers of some or derstood as to direct they protected rights would be entitled to constitutional notice ation or interference with injuries consequential a at the ad- and not to the and an result- ing power. ministrative level. The is not so from the exercise of lawful O’Bannon, at at directed and the recent case of State ex ret. 447 U.S. County Supreme Corporation Commission v. Texas The United States Court O’Ban- Association, distinguished Irrigation government non between ac- and Water Resources Inc., (Okla.1991), directly legal P.2d 449 illustrates the tion that affects citizen’s rights, impоses a direct restraint on his point. against liberty, directed third and action County all Texas we held owners party only and that affects the citizen indi- Aquifer rights Ogallala in the were not water 788,100 rectly incidentally. Id. at S.Ct. at proceeding personal entitled to notice of a In the former situation due Corporation Commis- before the Oklahoma attach; protections in the latter do not. (OCC) brought by companies two seek- sion recovery licensing process at not enhanced methods to issue here is to use legal rights nearby proper- recovery of oil from a common directed at the increase owners, applying ty but at the landowner supply, which had the source for the license to use his land as landfill. polluting the fresh water strata of water recog- Any injury nearby suf- at 452^154. or harm owners owners. Id. We can, thus, nothing County fer be considered other nized in Texas that where OCC had gov- underlying or incidental effect of duty protect than the indirect been expand enlarge or the class of is to against or trend is directed action which ernment nearby ac- Accordingly, may protest land- administrative party. people who at a third constitutionally based simply have States v. owners It also relies on United tion. licensing scheme. process rights due SCRAP, 412 93 S.Ct. U.S. (1973), that aesthetic to assert L.Ed.2d nearby proper- majority’s holding that well-being, like economic and environmental a matter of consti- are entitled as ty owners ingredients important hearing prosperity, li- a process due tutional society. of their I not dis- by government quality of use of life in our do censing improperly expands the neighbor’s property poli- a matter of agree these notions as protections of the Oklahoma process due However, majority’s fallacy in the cy. to a and amounts States Constitutions United eases is that neither was reliance on these has a constitution- ruling property owner one procedural process due or 'concerned with right to be the over- ally process due based constitutionally person enti- whether a was neighbor’s property. the use of his seer of heard or tled to notice up myriad of licens- holding opens a a Such prior to administrative ac- that clause under process chal- ing proceedings to similar whether were concerned with tion. Both tavern, laundry, a e.g. for a a lenges, licenses Procedure under the federal Administrative store, gas station slaughterhouse, liquor statutory en- respective federal Act and opens up nu- store. It also or convenience (or at issue administrative actments there husbandry activi- farming animal merous persons organizations regulations) certain may regulated the State ties which be challenge ac- standing to administrative had by neighbors if a process attacks similar due States Su- In both cases the United tion. necessary or government is permit from way in no standing, but preme Court found necessary by legislative enactment. is made sought protect- intimated the interests be surely easily found. examples can be Other challengers of adminis- respective ed may mentioned above All of the activities subject protection un- trative action were anoth- in one manner or deemed offensive be process clause. der the persons all hold the byer some neighboring degradation of for environmental majority engraft has done here What the if causing effects property or other nuisance clauses of both our the due onto appropriate in an they are not conducted an adminis- constitutions State and federal why left way. That is Stewart act, something this Court procedure trative monetary possibility open the and/or doing other courts and which has no business relief, including in the form of junctive relief clearly unwarranted. recognized is anticipated nuisance injunction stop an Koch, Association BAM Historic District permitted. I has been after a landfill even (2d Cir.1983), rejecting a due F.2d 233 however, reiterate, although may good it liberty challenge commu- interest statute, Legislature, public policy for the enjoin oper- sought to nity residents who citizens the neighbors or other to allow men in the for homeless ation of a shelter to notice and fol- said the community, the Second Circuit engage in neighbor is allowed before lowing: permit, activity government under a certain im- does not Amendment Legisla- The Fourteenth by the be made that decision should either an and localities by misguided pose upon consti- states this Court ture and not regulate Act to Procedure tutional decree. Administrative Environ- action nor an every governmental easily majority seen The error gov- Policy regulate those Act to mental Supreme States of two United a review qual- affect the actions ernmental support its partial it cites cases Court ity neighborhood life. Whether majority cites Association holding. The institut- hearing procedures should be Organizations v. Processing Service Data gov- participation public ed to broaden 25 L.Ed.2d Camp, 397 U.S. challenged of the sort decisions ernmental (1970), the modern proposition process protections to be- matter for consider- to be entitled in ease remains a this legislative by and local bodies. concerned ation state fore OCC the future matters gas operations permitting oil and be- Id. at 287. beyond question gas that oil and cause it is majority disregards other re- further inap- if in an operations, are conducted unequivo- authority of this Court which cent manner, propriate potential pol- hold the process rights at the cally shows no due adjacent property of luting surrounding constitutionally man- administrative level are nearby e.g. Drilling owners. See Portable Turley In dated for landowners. Guinn, Corporation v. 204 Okla. (Okla. Co., Flag-Redfern 782 P.2d 130 Oil (1950) (oil gas successfully (who lessee 1989),a owner owned no miner- surface interest) and other sued when release salt water al contended he had a constitutional оpportuni- way process right to notice and an deleterious substances found their to ty proceed- heard in an administrative polluted be it surface where ing Corporation Com- before Oklahoma growing crops). Although may it be (OCC) applica- mission when OCC heard an argued greater potential for landfills hold the establish, reestablish, or reform an oil tion to degradation, my it ex- environmental is view drilling spacing gas unit which Further, perts surely argue point. would property. cluded the surface owner’s We majority I fail to see how the could differen- held an order of OCC which increased the potential polluting tiate the effects of oil and number of wells which could be drilled did (and gas operations I other activities any property right not of the surface invade mentioned, previously e.g. animal hus- owner because under Oklahoma law the sur- bandry) from those of a landfill so that near- face estate was servient to the mineral estate by landowners would be entitled to cоnstitu- purchased always subject when and had been situation, protection tional in the landfill but police power to the valid exercise of the not in the To so others. rule is to find density drilling prevent control the there no distinction where true measure of gas protect of oil and to the correl- waste difference. ative of mineral interest owners. Id. injured Turley recognized also that where at 135. remedy statutory have an alternative gas In the oil and situation involved violations, any proce- to claimed due Turley the mineral and own- surface interest remedy dural defects are cured af- recognized pos- to have concurrent ers Turley, P.2 at In forded. other Phillips of the surface. Hinds v. session words, assuming constitutionally pro- even (Okla.1979). Co., Petroleum interest, Legislature if tected has fash- words, In other both have interest adequate statutory remedy, Turley ioned an Surely, protected prop- in the surface. if no holds, no due violation will occur erty recognized fоr the surface interest was the lack of notice or for a hear- Turley, actually owner who owned the Turley at the administrative level. In occur, drilling would land where increased adequate this found Court alterna- protected property recog- interest can be remedy in tive the form of the Oklahoma nized landowners who have no Act, Damages O.S.Supp.1982, Surface recognized property interest in the land amended, seq., § 318.2 et as which entitles a where the landfill will be located. compensation injury surface owner to view, my majority In sub silentio over- property. his or, least, Turley a dark rules at casts cloud case, regard present O.S.Supp. holding ruling in over our there its this 1986, 2258, requires permit appli- a landfill A case. surface owner or landown- er, attempt gain persons cant majority’s consent of reading after decision will merely having occupied residence allege have to for envi- within air) (surface, yards If degradation person’s ronmental water оr of the landfill site.1 occupied 1. Since this matter was decided in the district to increase the affected area to include Legislature court 2258 has been altered applicable this and consent to the construction of a landfill is within distance residence permit- required the landfill still be 66 is not tied to the not requirements permitting proceeding all other any if it meets administrative or ted however, issues, persons requirement for a hearing If the constitutional law. specified given are a stat- process. distance If within within administrative applicant utory against actually of action adjoining cause to an landowner re- residence of value to land and quired obviously for loss under notice is operation Fur- process, of the landfill. separate caused from administrative ther, any brought such loss of adjoining in action relief landowner feels authority court to provision value the district himself entitled under that should proposed dis- weigh public benefit of the damage form of a action or an take the posal impact one, to the against negative previously men- equitable site which as enjoin tioned, in and to Sharp, the affected area have residences both Stewart and left operation a be made should determination available. impact public negative outweighs the the con- duty protect has a to This Court also Appellee apparently Most and benefit. process rights of our citizens. stitutional Dulaney argue they are appellees and Harris or are actual- those are invaded When majority yard zone. The does

within the 500 directly by un- ly threatened with invasion situation, why assuming in this not answer vigi- government action we should lawful have interest appellees protected do these We, step protect in and them. howev- lant to distance, yard they are within the 500 er, duty respect the other also have holding Turley’s regarding an alternative tripartite sys- government in branches of our any proсe- statutory remedy cure would not recognize each the roles of of tem and to defects, process ruled dural due as this Court view, my majority branches. these Damages Turley in cured in the Surface Act the role of a improperly stepped into has Although I do regard the surface owner. particular case super-legislature this remedy is statutory not hold the view protec- mandating process constitutional due necessary I do because not believe constitutionally protected in- tions where protected interest suffi- has, effect, majority exists. The terest process protections to invoke due cient legislative the strictures of a ad- mandated majority should process, the administrative act, usurped leg- procedure ministrative ‍​‌‌​‌​‌‌​‌‌‌​​‌‌​​‌​‌​‌‌​‌​‌‌‌‌​‌​‌‌​​​​​‌‌‌‌​‌‌‍with this alternative concern itself Accordingly, power doing so. islative procedural due remedy it mandates before I have forth I dissent the reasons set just previ- protections, as this Court nearby holding majority Turlеy. ously did constitutionally protected have a on majority further it relies errs when in the admin- procedural O.S.1991, 66, adja- which leading permitting proceeding to the istrative lateral and have the cent landowners overruling landfill to the the instant adjoining subjacent support received from those to the extent cases Stewart instance, ap- nowhere do In the first land. holding present inconsistent with the provision pellees rely on this and we should majority. important our decision in such not base authorized to state that Justice I am theory the have not even on a ease SIMMS, HARGRAVE Justice Justice Secondly, from not re- contemplated. aside join in views herein ex- SUMMERS statute, appellees not one make lying on the pressed. operation allegation the construction issue will have an adverse landfill at subjacent support any lateral or impact on property on may receive from the

their land permitted. landfill has been

which the

Thirdly, might extent be said O.S.Supp.1992, (½) § 1-2414. of a landfill site. 63 within one-half mile residences

Case Details

Case Name: DuLaney v. Oklahoma State Department of Health

Court Name: Supreme Court of Oklahoma

Date Published: Sep 21, 1993

Citation: 868 P.2d 676

Docket Number: 70498, 70524

Court Abbreviation: Okla.