A judge in Pushmataha County has decided he will decide and not a jury whether the State Water Resources Board followed the law in allowing Oklahoma City to use billions of gallons of water from the Kiamichi River Basin.
In doing so, District Judge Michael DeBerry cancelled a May 9 hearing that had been scheduled in Antlers where some landowners wanted the permit for Oklahoma City to be overturned, according to an announcement by the State House of Representatives.
On behalf of seven individuals who own land or businesses along the river, Norman attorney Kevin Kemper filed a lawsuit in Pushmataha County District Court against the Oklahoma Water Resources Board (OWRB) and the City of Oklahoma City (OKC) on 17 November 2017.
The OWRB on 10 October 2017 approved a water-use permit that authorizes Oklahoma City to take up to 115,000 acre-feet of water (almost 37.5 billion gallons) each year from the Kiamichi River and Sardis Lake, which is an impoundment of Jackfork Creek, a tributary of the river. (An acre-foot is equivalent to 325,851 gallons, enough water to inundate one acre of land to a depth of one foot.)
In his “brief in chief” filed on 17 January 2019, Kemper asked the Pushmataha County court to “overturn and deny” the permit or to remand the case back to the OWRB for “a further hearing with more evidence.”
OKC and the OWRB both responded on 18 March 2019 that the city’s water request is reasonable and that the state board complied with state law when it approved the permit.
In the petitioners’ “combined reply” dated 15 April, Kemper wrote that the legal briefs filed by each party and the evidence compiled in the case raise “essential factual and legal questions that must be resolved at a trial for judicial review” of OKC’s water-use permit issued by the OWRB.
However, in an order filed on 29 April, District Judge Michael DeBerry pointed to a state statute which decrees that when staying enforcement of a state agency decision pending review, “the review shall be conducted by the court without a jury and shall be confined to the record…” Consequently, DeBerry concluded that there was no need for a “trial for judicial review” and thus no necessity for a scheduling conference May 9.
The jurist said he would review the case file and read the legal briefs of the lawyers for the petitioners, for OKC and for the OWRB. The petitioners are Dale Jackson of Clayton; Larinda McClellan of Finley; Justin Jackson of Tuskahoma; Debbie Leo, d/b/a Miller Lake Retreat, Moyers; Dr. Kenneth Roberts of Claremore, a Tulsa University professor who owns property, including a cabin, along the river; Walter Myrl Redman, Antlers; and the Louise A. Redman Trust, which has land that borders the river.
The administrative record, DeBerry disclosed in his order, “consists of several boxes that cover a large area of the floor in the district judge’s office.” A review of the administrative record in the case “will require considerable time,” he noted.
All parties in the case should be cognizant that DeBerry has “extensive administrative duties and case load for three counties,” he wrote. His judicial district encompasses Pushmataha, McCurtain and Choctaw counties.
Therefore, because of these factors, “an immediate decision is not likely,” he advised. After he reviews the record and reads all of the legal briefs, DeBerry said he would set a date for hearing oral arguments, “if necessary.”