Unit Petroleum Co. v. Oklahoma Water Resources Board , 66 O.B.A.J. 2221 ( 1995 )

SUMMERS, Justice,

concurring.

I concur with the majority’s opinion because the Legislature may not retroactively take away a vested property right from one class of individuals and confer it upon another. Ricks Exploration v. Oklahoma Water Resources Board, 695 P.2d 498 (Okla.1984); Davis Oil Co. v. Cloud, 766 P.2d 1347, 1353-1357 (Okla.1986), (Summers, J., dissenting, joined by Opala, V.C.J., Hodges, Simms, JJ.). The Legislature may exercise a regulatory or police power and alter or diminish a person’s property right. Andersovr-Prichard Oil Corp. v. Corporation Commission, 205 Okla. 672, 241 P.2d 363 (1951), appeal dismissed, 342 U.S. 938, 72 S.Ct. 562, 96 L.Ed. 698 (1952). But here, according to the Board’s construction, the Legislature takes away a water right from a mineral owner, gives it to a surface owner, and then allows the surface owner to sell it back to the mineral owner. The exploration activity before and after the Act is identical, but after the Act the mineral owner must make a payment for the use of the water. This is not a valid exercise of police power for the purpose of altering existing property rights. Davis Oil Co. v. Cloud, 766 P.2d at 1353-1357, (Summers, J., dissenting).

The statute makes no distinction between mineral lessees and mineral owners.

... [N]o permits shall be issued to an applicant who is not the surface owner of the land on which the well is to be located, or does not hold a valid lease from such owner permitting withdrawal of water from such basin or subbasin.

82 O.S.1991 § 1020.11(D), material omitted. By this language the Legislature divided the class of all property owners into three categories: (1) surface owners, (2) owners of lease to withdraw water, and (3) all others. Mineral owners and mineral lessees fall into the last category. The trial court distinction between mineral lessees and mineral owners is not found in the statute nor in the opinions of this Court. Thus, I concur with today’s opinion.