DEBORAH B. BARNES, Judge.
¶ 1 The Sequoyah County Conservation District (SCCD) filed a condemnation action seeking a permanent easement on property owned, in part, by Plaintiff/Appellee Jennifer Benitscheck Taylor (Taylor) so that it could perform rehabilitation work on a dam. Taylor then filed a petition before Defendant/Appellant Oklahoma Water Resources Board (the OWRB) asserting that SCCD's proposed construction activities are based on the assumption that the dam is a "high hazard" dam, and further asserting that the dam has never been so classified, and that it should not be so classified "today."
¶ 2 In its order, the OWRB denied Taylor's petition based on the fact that litigation is ongoing between Taylor and SCCD in the condemnation action. The OWRB stated, in effect, that because SCCD filed the condemnation action "in order to rehabilitate the dam to meet high hazard design criteria," and because that litigation is ongoing, the OWRB was prevented under its own regulations from ruling on Taylor's petition. The OWRB, therefore, denied Taylor's petition without holding an evidentiary hearing or otherwise addressing the merits of Taylor's petition.
¶ 3 Taylor appealed the OWRB's order to the trial court, which found, among other things, that the dam at issue "was never properly categorized as a `high-hazard' dam... [,] and that it is not a `high-hazard' dam pursuant to OWRB's rules" because there is "no evidence to that effect...."
¶ 4 Based on our review, we reverse the trial court's Order and remand this case to the OWRB to address Taylor's petition. The issues raised in Taylor's petition should be addressed by the OWRB, rather than in the first-instance by the trial court.
¶ 5 In June 2009, SCCD filed a petition seeking to condemn certain property so that it could perform rehabilitation work on a dam (i.e., on a "flood-water retarding structure") located in Sequoyah County, Oklahoma.
¶ 6 SCCD acknowledged in the petition that previously, upon learning of SCCD's proposed project, Taylor, among other property owners, "commenced a declaratory judgment action against [SCCD] ... seeking a determination that the Rehabilitation Work exceeded the scope of [SCCD's two] Easements" that had been granted to it several decades before by the predecessor in interest of the property. SCCD admitted the trial court, in that action, found the proposed work on the dam was not within the scope of the easements,
¶ 7 On appeal from the trial court's order in the declaratory judgment action, a separate Division of this Court "affirmed as modified" in an opinion (Case No. 106,875) issued in April 2010.
¶ 8 The Court further explained that, generally, an easement may not be expanded or applied "in a manner not originally intended by the parties at the time of its grant." Because it was undisputed SCCD's proposed rehabilitation work went beyond the scope of the old easements, the Court concluded the trial court did not err in awarding judgment to the landowners.
¶ 9 However, the Court agreed with SCCD's argument that the trial court erred in issuing an injunction preventing SCCD from undertaking the proposed projects under any circumstances. The Court modified the trial court's injunction, concluding that SCCD is "enjoined from undertaking the rehabilitation projects on the property of Landowners unless and until SCCD obtains sufficient easements allowing it to do so."
¶ 10 After the trial court enjoined SCCD from undertaking the proposed work, and during the pendency of the appeal from that ruling, SCCD filed the June 2009 petition, discussed above, commencing the condemnation action. Because SCCD could not perform the work under the old easements, SCCD sought to acquire the necessary easements through condemnation.
¶ 11 In November 2009, defendants, including Taylor, filed an objection to the report of the commissioners. They asserted, among other things, that SCCD did not specifically set forth in the June 2009 petition the area to be condemned. Defendants stated they "object to the Report of Commissioners[;] request that [SCCD] be required to specifically identify the property being condemned[;] and request that this matter be set for hearing." Following a hearing on the matter, the trial court sustained defendants' objection and ordered
¶ 12 In January 2011, SCCD filed its amended petition in the condemnation action. SCCD sought "to acquire a perpetual easement" and stated that "[t]he operation and maintenance ... for which this perpetual easement is being acquired includes the repair, modification, alteration, rehabilitation, upkeep, upgrade, improvement, construction, reconstruction, decommission and inspection" of the dam, including "the spillways," and "pool (water storage) areas." SCCD attached to the amended petition a description of the real property required for the easement.
¶ 13 On April 29, 2011, Taylor filed a "Petition for Declaratory Ruling" before the OWRB, and, a few days later, on May 2, 2011, filed a motion in the condemnation action seeking to stay the condemnation proceedings. The full title of Taylor's petition before the OWRB is "Petition for a Declaratory Ruling Regarding the Hazard Class of [the Dam]." Taylor asserted in the petition that SCCD's proposed work on the dam is "based on [SCCD's] own assumption that [the dam] is a high hazard dam." Elsewhere in the petition Taylor stated that "SCCD's proposed construction activities are based on [the dam] being classified as a high hazard dam." In this regard, Taylor attached a copy of SCCD's application to the OWRB, filed in October 2006, seeking permission to undertake the proposed work on the dam. In this application, the hazard classification of the dam is marked "High" (rather than "Low" or "Significant"). Also attached is a copy of a letter from a representative of the OWRB stating that SCCD's "application for rehabilitation of a dam ... was considered and approved by the [OWRB] at its regular monthly meeting" in November 2006.
¶ 14 Taylor asserted in her petition, however, that the dam "is not a high hazard dam," and that it "is not a high hazard dam under the OWRB's dam safety regulations." Taylor asserted, in addition, that the dam "was constructed in 1966 as a low hazard dam, and the OWRB has not conducted or offered to conduct any proceeding to alter that classification." Taylor further asserted that the dam should not be "classified as a high hazard dam today because, pursuant to the OWRB dam safety rules, there are no downstream structures that are likely to result in death if there was a breach. Therefore, [it] does not meet the criteria for a high hazard classification."
¶ 15 In June 2011, the OWRB issued its order in response to Taylor's petition. In its order, the OWRB denied Taylor's petition based on the fact that litigation is ongoing between Taylor and SCCD in the condemnation action. The OWRB cited § 785:1-5-6 of the Oklahoma Administrative Code (OAC), which provides, in part, as follows:
OAC § 78:1-5-6 (1991). The OWRB stated, in effect, that because "[SCCD] filed [the condemnation action] ... in order to rehabilitate the dam to meet high hazard design criteria," and because that action was ongoing, the OWRB could not make a ruling on Taylor's petition. In July 2011, Taylor appealed the OWRB's order to the trial court and, in August 2011, the OWRB filed a response asserting, pertinent to this appeal, that the OWRB's decision should be affirmed because its determination that it could not make a ruling was valid under § 785:1-5-6(3) and free from prejudicial error.
¶ 16 The trial court did not rule on the administrative appeal until March 2013. Meanwhile, the condemnation action continued despite the filing of the motion to stay proceedings by Taylor. On August 8, 2011, the commissioners filed an amended report assessing the value of the taking at $77,000, and on August 25, 2011, defendants (including Taylor) filed an objection to the amended report of the commissioners.
¶ 17 In January 2012, an order was filed consolidating the two cases. The condemnation action, Case No. CS-09-633, and the administrative appeal from the OWRB's order, Case No. CV-11-65, were "consolidated in to case number CS-09-633...." SCCD then filed in the Oklahoma Supreme Court an application to assume original jurisdiction and a petition for writ of mandamus and writ of prohibition in an effort to, among other things, enjoin the trial court from consolidating the condemnation action with the administrative appeal. However, in May 2012, the Supreme Court denied SCCD's application to assume original jurisdiction.
¶ 18 Due in part to scheduling conflicts, a hearing on the administrative appeal was not held in the trial court until March 2013.
¶ 19 Under the Oklahoma Administrative Procedures Act (OAPA), 75 O.S. 2011 & Supp. 2014 § 250 et seq.,
75 O.S. 2011 § 322(1) (footnote omitted). "The reviewing court, also in the exercise of proper judicial discretion or authority, may remand the case to the agency for the taking and consideration of further evidence, if it is deemed essential to a proper disposition of the issue." § 322(2).
¶ 20 The OWRB acknowledges in its order that SCCD filed the condemnation action "in order to rehabilitate the dam to meet high hazard design criteria." However, the OWRB declined to rule on Taylor's petition, in which she contested the high-hazard classification of the dam, because the condemnation action was ongoing. As set forth in the OWRB's order, and as quoted above, § 785:1-5-6(3) of the OAC provides, in pertinent part, as follows: "Petitions for declaratory rulings [before the OWRB] shall be subject to the following requirements: ... (3) No declaratory rulings shall be made where the question presented involves a matter subject of pending ... litigation...." Implicit in the OWRB's order, therefore, is a finding that the high-hazard classification of the dam was "a matter subject of pending... litigation" in the condemnation action. Because, according to the OWRB, the issue regarding the high-hazard status of the dam was pending in the condemnation action, the OWRB concluded it was prevented from ruling on that and related issues by § 785:1-5-6(3).
¶ 21 We, first of all, agree with the OWRB's argument that, on appeal from the OWRB's order declining to address or rule on Taylor's petition, the trial court "exceeded the scope of review" under the OAPA by addressing the issues that OWRB declined to address.
¶ 22 However, we disagree with the OWRB's argument that this error requires that we reverse the Order of the trial court and affirm the order of the OWRB. As stated above, the district court and this Court apply the same review standard for agency actions. Although the trial court "exceeded the scope of review," we will review the OWRB's action in this matter and determine whether it erred in concluding it could not rule on Taylor's petition. If the OWRB erred in this regard, then the case should be remanded to the OWRB, pursuant to 75 O.S. 2011 § 322, to address Taylor's petition and to make all necessary first-instance findings.
¶ 23 As quoted above, the OWRB stated in its order that the basis of SCCD's condemnation action was "in order to rehabilitate the dam to meet high hazard design criteria." The OWRB similarly states on appeal that "[SCCD's] reason for the action" was that "the Dam met the `high hazard' classification and needed to be upgraded to satisfy those requirements."
¶ 24 Because the condemnation action is based on the dam in question being classified as a high-hazard dam, the hazard-potential classification of the dam is clearly material to the condemnation action. However, it is also clear that the trial court is not the appropriate body to be exercising initial authority regarding the hazard-potential classification of dams in Oklahoma that fall under the Oklahoma Dam Safety Act. As quoted above, the OWRB admits that "the Legislature has given the OWRB jurisdiction in the Oklahoma Dam Safety Act ... to determine hazard classification of dams." See also 82 O.S. 2011 §§ 110.4-110.5; § 785:25-3-1 of the OAC. Accordingly, such first-instance determinations are properly made at the agency level, and the district court's role, as well as this Court's role, should be limited to reviewing the OWRB's actions in accordance with the OAPA. See 82 O.S. 2011 § 110.11.
¶ 25 This conclusion "does not impinge on the district court's authority as a court of unlimited jurisdiction...." Arbuckle Abstract Co. v. Scott, 1998 OK 125, ¶ 18, 975 P.2d 879. Rather, as noted in Arbuckle, Okla. Const. art. 7, § 7(a), which grants to State District Courts unlimited original jurisdiction of all justiciable matters, itself provides, in pertinent part, as follows: "The District Court shall have unlimited original jurisdiction of all justiciable matters, except as otherwise provided in this Article, and such powers of review of administrative action as may be provided by statute." Consequently, the district court's possession of unlimited original jurisdiction "does not mean a district court may preempt or prejudge issues committed for initial resolution to an administrative agency...." Arbuckle, ¶ 18.
Arbuckle, ¶ 19.
¶ 27 Our conclusion is also consistent with the "exhaustion rule," which provides that "[w]here relief is available from an administrative agency, a plaintiff is ordinarily required to pursue that avenue of redress before proceeding to the courts." Waste Connections, Inc. v. Okla. Dep't of Envtl. Quality, 2002 OK 94, ¶ 7, 61 P.3d 219 (citations omitted).
¶ 28 It follows that the issues raised in Taylor's petition before the OWRB were not in fact matters subject to pending litigation in the condemnation action because the OWRB, and not the trial court, has the authority to address such issues in the first-instance. In addition, we disagree with the OWRB's strict interpretation of Taylor's petition — i.e., that the petition constituted solely a request for a declaratory ruling rather than constituting also, or in the alternative, an "attempt to show that the Dam's `high hazard' classification `is inaccurate and should be changed' as provided by OAC § 785:25-3-3(b)(1)."
¶ 29 We conclude the OWRB erred in finding it could not rule on Taylor's petition under § 785:1-5-6(3) of the OAC, which provides that "[n]o declaratory rulings shall be made where the question presented involves a matter subject of pending ... litigation...." Therefore, pursuant to 75 O.S. 2011 § 322, we remand this matter to the OWRB to address Taylor's petition and to make all necessary first-instance findings.
¶ 30 Rather than reviewing the OWRB's order to determine whether the OWRB correctly found it could not rule on Taylor's petition, the trial court addressed the issues that OWRB declined to address. Because the trial court's Order exceeds the proper scope of review, we reverse that Order. However, we further conclude the OWRB erred in failing to address Taylor's petition because the issues raised in Taylor's petition were not matters subject to pending litigation and, in addition, Taylor's petition constitutes more than a request for a declaratory ruling because, among other things, it also, or alternatively, challenges the high-hazard classification "today" under § 785:25-3-3(b)(1) of the OAC. Consequently, we remand this matter to the OWRB for further proceedings.
¶ 31
RAPP, P.J., and THORNBRUGH, J., concur.
In addition, and also under § 3-3-105(A), "a conservation district and the directors thereof shall have the power and duty to: ...; 7. Construct, improve, repair, operate and maintain such structures as may be necessary or convenient for the performance of any of the operations or activities authorized in the Conservation District Act[.]"
(Citations omitted.)
Title 82 O.S. 2011 § 110.11 of the Oklahoma Dam Safety Act similarly provides as follows:
Id. ¶ 19 n. 26 (emphasis omitted) (citations omitted). The Supreme Court further noted that "[t]he doctrine of primary jurisdiction does not necessarily allocate power between courts and agencies, for it governs only the question whether the court or agency will initially decide a particular issue, not the question whether court or agency will finally decide the issue." Id. (internal quotation marks omitted) (citations omitted). The doctrine of primary jurisdiction appears to have been discussed with approval by the Supreme Court in Walker, where the Court similarly stated:
Walker, 2001 OK 2, ¶ 36, 37 P.3d 749 (footnote omitted). In the present case, however, the doctrine of primary jurisdiction need not expressly "come into play" because the administrative appeal has been consolidated with the condemnation action.
