Garrett Development LLC v. Deer Creek Water Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

GARRETT DEVELOPMENT, L.L.C., an )

Oklahoma limited liability company, )

)

)

Plaintiff, )

)

v. ) Case No. CIV-18-298-D

)

DEER CREEK WATER )

CORPORATION, an Oklahoma not for )

profit corporation, )

)

Defendant. )

O R D E R

Before the Court are cross-motions for summary judgment filed by Defendant Deer

Creek Water Corporation (“Deer Creek”) [Doc. No. 52] and Plaintiff Garrett Development,

L.L.C. (“Garrett”) [Doc. No. 53]. Both motions are fully briefed and at issue. See Pl.’s

Resp. Br. [Doc. No. 58]; Def.’s Reply Br. [Doc. No. 62]. See also Def.’s Resp. Br. [Doc.

No. 57]; Pl.’s Reply Br. [Doc. No. 64].

BACKGROUND

This case is about providing water to a proposed residential development. Garrett

owns land in the NW/4 of Section 19-T14N-R3W, Oklahoma County, Oklahoma. Garrett

plans to develop a residential housing addition called the Covell Creek Addition

(“Addition”) on this property. Garrett must secure a water source for the Addition to obtain

final approval and rezone the plat to sell individual residential lots.

In 2015, Garrett submitted an application for water service to Deer Creek, and Deer

Creek responded with its terms and conditions. In 2018, Garrett submitted a renewed

application for service, and Deer Creek again provided nearly identical terms and

conditions. Subsequently, Garrett sought to obtain service from a different provider. Deer

Creek claims that it has an exclusive right to provide water to the Addition under the

Consolidated Farm and Rural Development Act, 7 U.S.C. § 1926(b).

Garrett filed this lawsuit seeking a declaration that Deer Creek “does not have a

service area protected by 7 U.S.C. § 1926(b) and that obtaining water service for the

Addition from another water service provider does not violate 7 U.S.C. § 1926(b).” Compl.

at ¶ 4. Further, Garrett seeks a declaration “that Deer Creek has failed and refused to make

water service available to Garrett such that Garrett is free to obtain water service from a

water service provider other than Deer Creek” and that doing so does not violate 7 U.S.C.

§ 1926(b). Compl. at ¶ 23.

Both parties seek summary judgment. Deer Creek argues that it qualifies for

protection from curtailment under 7 U.S.C. § 1926(b), it has made water available to

Garrett, and Garrett’s claims are not justiciable. Garrett asserts that Deer Creek must make

service available to qualify for protection, Deer Creek has not made service available, and

Deer Creek’s claimed service area violates the Tenth Amendment.

STANDARD

Summary judgment is proper “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R.

CIV. P. 56(a). A material fact is one that “might affect the outcome of the suit under the

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is

genuine if the facts and evidence are such that a reasonable juror could return a verdict for

either party. Id. All facts and reasonable inferences must be viewed in the light most

favorable to the nonmovant. Id.

A movant bears the initial burden of demonstrating the absence of a dispute of

material fact warranting summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317,

322–23 (1986). If the movant carries this burden, the nonmovant must then go beyond the

pleadings and “set forth specific facts” that would be admissible in evidence and that show

a genuine issue for trial. See Anderson, 477 U.S. at 248; Celotex, 477 U.S. at 324. “To

accomplish this, the facts must be identified by reference to affidavits, deposition

transcripts, or specific exhibits incorporated therein.” Adler v. Wal-Mart Stores, Inc., 144

F.3d 664, 671 (10th Cir. 1998); see FED. R. CIV. P. 56(c)(1)(A).

“Cross-motions for summary judgment are treated as two individual motions for

summary judgment and held to the same standard, with each motion viewed in the light

most favorable to its nonmoving party.” Banner Bank v. First Am. Title Ins. Co., 916 F.3d

1323, 1326 (10th Cir. 2019). When the parties file cross motions for summary judgment,

the Court is entitled to assume “‘no evidence needs to be considered other than that filed

by the parties.’” Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138,

1148 (10th Cir. 2000) (citation omitted).

UNDISPUTED FACTS1

Deer Creek is a not-for-profit corporation that was established under OKLA. STAT.

tit. 18, § 863, and is governed by the Oklahoma General Corporation Act. See Def.’s Mot.

[Doc. No. 52] at ¶ 2; Pl.’s Mot. [Doc. No. 53] at ¶ 19. Deer Creek has obtained loans from

the United States Department of Agriculture (“USDA”), and it remains indebted to the

USDA. Def.’s Mot. at ¶¶ 4–10.

Garrett owns a section of land described as the NW/4 of Section 19-T14N-R3W,

Oklahoma County, located at the intersection of May Ave and 206th Street. Id. at ¶ 12. The

land is currently zoned for agricultural and rural residential uses. Id. Garrett intends to build

a residential addition on the land. Id. See also Pl.’s Mot. at ¶ 2. Garrett contacted Deer

Creek about providing water service to the Addition. Pl.’s Mot. at ¶ 3. On two occasions,

Garrett submitted an application for service, and Deer Creek accepted both applications.

Def.’s Mot. at ¶¶ 29–32. Deer Creek conditioned its approval on certain terms. Def.’s Mot.

at ¶ 35; Pl.’s Mot. at ¶ 7. Those terms included expanding infrastructure at Garrett’s

expense:

a. Impact fees of $2,500 per lot, but credited to the cost of drilling the four

wells in paragraph (d):

b. Plaintiff must extend certain water mains a total of 3710 linear feet from

Deer Creek’s existing mains to the Proposed Development;

c. Plaintiff must transfer water rights to the parcel to Deer Creek;

d. Plaintiff must provide and drill four successful wells within the Proposed

Development (in the February, 2018 Service Letter, the impact fees

1 This statement includes material facts that are supported by the record and not opposed

in the manner required by Rule 56(c)(1) and LCvR56.1(d). All facts properly presented by

a party and not specifically controverted by an opponent are deemed admitted, pursuant to

Rule 56(e)(2) and LCvR56.1(e). Any fact stated by a party that is not supported by the

party’s citation to the record is disregarded.

would be credited toward these wells);

e. Plaintiff must provide 3-phase power into the Proposed Development and

to all water well sites;

f. Plaintiff must provide and install meter cans, setters, curb stops, corp.

stops, and service lines per Deer Creek’s specifications;

g. Plaintiff must pay a 4% inspection fee of all water system construction;

and

h. Plaintiff must pay for one membership fee.

Def.’s Mot. at ¶ 35.

Deer Creek provides water service to the parcels to the north, west, and east of

Garrett’s property. Def.’s Mot. at ¶ 18. Deer Creek has maintained an 8-inch water main

on the northern part of Garrett’s property since 1972. Def.’s Mot. at ¶ 14; Pl.’s Mot. at ¶ 3.

The existing 8-inch main is insufficient to provide water to the Addition. Pl.’s Mot. at ¶ 3.

Deer Creek does not plan on providing the necessary infrastructure. Pl.’s Mot. at ¶ 18;

Def.’s Mot. at ¶ 35. Deer Creek has not consented to another provider servicing the

Addition. Pl.’s Mot. at ¶ 6.

DISCUSSION

“Congress enacted 7 U.S.C. § 1926(b) as part of a federal statutory scheme to extend

loans and grants to certain associations providing water service to farmers, ranchers, and

other rural residents.” Rural Water Dist. No. 2 v. City of Glenpool, 698 F.3d 1270, 1272

(10th Cir. 2012). Section 1926(b) prevents other water providers from “encroaching upon

services provided by federally indebted water associations.” Id.

To qualify for a loan under this federal scheme, the recipient must fall under the

classifications outlined in § 1926(a). To qualify for protection from curtailment, the

recipient must (1) have a continuing indebtedness to the USDA, and (2) have made service

available to the disputed area. Rural Water Dist. No. 4, Douglas Cnty., Kan. v. City of

Eudora, Kan., 659 F.3d 969, 976 (10th Cir. 2011); see also Sequoyah Cnty. Rural Water

Dist. No. 7 v. Town of Muldrow, 191 F.3d 1192, 1197 (10th Cir. 1999). “Doubts about

whether a water association is entitled to protection from competition under § 1926(b)

should be resolved in favor of the [USDA]-indebted party seeking protection for its

territory.” Sequoyah, 191 F.3d at 1197.

I. Section 1926(a)

Section 1926(a) identifies the entities that may be accorded § 1926(b) protection.

The section authorizes loans “to associations, including corporations not operated for profit

. . . for the . . . conservation, development, use, and control of water.” 7 U.S.C. § 1926(a).

Deer Creek was formed pursuant to OKLA. STAT. tit. 18, § 863 as a private, non-profit

corporation, and it is controlled by the provisions of the Oklahoma General Corporation

Act. See OKLA. STAT. tit. 18, §§ 1001–1144. Deer Creek was formed in part “[t]o provide

for the use and benefit of its members a waterworks and distribution system . . .” Def.’s

Mot. at ¶ 1. Thus, the plain language of § 1926(a) indicates that Deer Creek is an entity

that may be protected.2

2 Deer Creek asserts that Garrett lacks standing, seeks an advisory opinion, and its claims

are not ripe. These are substantially similar to the arguments raised by Deer Creek at the

motion to dismiss stage. See Order [Doc. No. 16]. Deer Creek recognizes the Court’s

previous ruling but renews these arguments because the standard on summary judgment is

different and discovery apparently uncovered new facts. Upon review of the arguments,

nothing has significantly changed since the Court’s previous Order [Doc. No. 16]. Thus,

these arguments need not be addressed.

II. Section 1926(b)

a. Continuing Indebtedness

To be protected from curtailment, the first prong of § 1926(b) requires a continuing

indebtedness to the USDA. Douglas Cnty., 659 F.3d at 976; Sequoyah, 191 F.3d at 1192.

Both parties concede that Deer Creek has been indebted to the USDA since the 1990s.

Def.’s Mot. at ¶¶ 4–10; see also Pl.’s Mot. at 8 (“Garrett does not contest Deer Creek’s

indebtedness . . . .”). The remaining narrow inquiry is whether Deer Creek made service

available to Garrett. Before turning to that question, the Court addresses the other

arguments related to Deer Creek’s status.

1. State Approval and the Tenth Amendment

Garrett argues throughout its briefing that Deer Creek does not qualify for protection

because it is not a rural water district, and thus, Oklahoma law does not authorize it to

borrow money from the USDA. See Pl.’s Mot. at 19–22; Pl.’s Reply Br. at 4–6. See also

Pl.’s Resp. Br. at 9–13. Garrett contends the state must knowingly and voluntarily accept

the conditions attached to the federal funds to satisfy the Tenth Amendment. Id.

Deer Creek counters that nothing in § 1926(b) requires it to be classified as a rural

water district under Oklahoma law. See Def.’s Resp. Br. at 13–16; Def.’s Reply Br. at 6.

Because it is a private entity, Deer Creek asserts it does not need statutory approval to

borrow money from the USDA. Id.

“The Constitution empowers Congress to ‘lay and collect Taxes, Duties, Imposts,

and Excises, to pay the Debts and provide for the common Defence and general Welfare

of the United States.’” South Dakota v. Dole, 483 U.S. 203, 206 (1987) (citing Art. I, § 8,

cl. 1). Known as the spending power, this allows Congress to “attach conditions on the

receipt of federal funds,” and it “has repeatedly employed the power ‘to further broad

policy objectives by conditioning the receipt of federal moneys upon compliance by the

recipient with federal statutory and administrative directives.’” South Dakota, 483 U.S. at

206 (quoting Fullilove v. Klutznick, 448 U.S. 448, 474 (1980)).

The spending power is not without limits. South Dakota, 483 U.S. at 207 (citing

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, and n.3 (1981)). The

power must (1) be exercised in the pursuit of the general welfare; (2) unambiguously

establish the conditions so that recipients can knowingly accept or reject; (3) be germane

to the federal interest at issue; (4) not violate other provisions of the Constitution; and (5)

not be impermissibly coercive. See South Dakota, 483 U.S. at 207–08.

Here, Garrett argues there was no knowing acceptance or rejection by the State of

Oklahoma regarding government loans to private non-profit entities like Deer Creek. The

Supreme Court in Pennhurst State School and Hospital v. Halderman stated that legislation

enacted under the spending power “is much in the nature of a contract: in return for federal

funds, the States agree to comply with federally imposed conditions.” 451 U.S. 1, 17

(1981). The legitimacy of this power “rests on whether the State voluntarily and knowingly

accepts the terms of the ‘contract.’” (citation omitted). Importantly, the program in

Pennhurst was a federal-state grant where the government provided funds to the states for

the creation of programs for the developmentally disabled. Id. at 11. The recipient was a

hospital owned by the Commonwealth of Pennsylvania. Id. at 5.

Regarding § 1926(b), the Tenth Circuit has held that this section “sets forth both the

mechanism for making the loans and the conditions that are to accompany them.” Glenpool

Util. Servs. Auth. v. Creek Cnty. Rural Water Dist. No. 2, 861 F.2d 1211, 1215 (10th Cir.

1988). In passing § 1926(b), “Congress clearly acted within its powers.” Id. The crux of

the analysis, therefore, is whether the state must knowingly and voluntarily accept the terms

of the loan between Deer Creek and the USDA. This hinges on a distinction between rural

water districts and water associations under Oklahoma law.

Oklahoma law provides for rural water districts under Title 82. These entities are

quasi-municipal corporations. Douglas Cnty., 659 F.3d at 976. Quasi-municipal

corporations possess only those powers accorded to them by law. Id.; see also Hous. Auth.

of Kaw Tribe of Indians of Okla. v. City of Ponca City, 952 F.2d 1183, 1192 (10th Cir.

1991) (“Since political subdivisions are creatures of the state, they possess no rights

independent of those expressly provided to them by the state.”). Oklahoma law expressly

allows these districts to borrow money from the federal government. Pittsburg Cnty. Rural

Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 717 (10th Cir. 2004). In choosing to

borrow federal funds, the state is “‘ultimately free to reject both the conditions and the

funding [of federal loans], no matter how hard that choice may be.’” Douglas Cnty., 659

F.3d at 976 (quoting Pittsburg Cnty., 358 F.3d at 718).

Here, however, Deer Creek is a private, non-profit rural water association formed

pursuant to the Oklahoma General Corporation Act. Deer Creek is a private entity, not a

quasi-municipal body. It is Deer Creek that must knowingly and voluntarily accept the

conditions associated with the federal funds—not the state. Under the Oklahoma General

Corporation Act, one of the specific powers accorded to corporations is the ability to

borrow money. See OKLA. STAT. tit. 18, § 1016 (“Every corporation created pursuant to

the provisions of the Oklahoma General Corporation Act shall have the power to . . . 13.

Make contracts, . . . incur liabilities, borrow money at such rates of interest as the

corporation may determine . . .”). There is no evidence that Deer Creek did not knowingly

and voluntarily accept the conditions associated with the federal loan. The Tenth

Amendment is not violated by Deer Creek’s loan from the USDA.3

2. Defined Service Area

Garrett asserts that Deer Creek must have a defined service area to qualify for

protection under § 1926(b). Garrett contends that it should not be left to guess at Deer

Creek’s service area, and Deer Creek needs some sort of contract, certificate, or

arrangement with the state to give it authority to operate in an area. Deer Creek maintains

that it does not need a defined service area since it is a private entity. Deer Creek asserts

that Garrett is not left to guess at Deer Creek’s service area because Deer Creek serves the

land to the east, north, and west of Garrett’s property. The Court agrees with Deer Creek.

“Federal, not state law, controls the geographic scope of the § 1926 protections,

which attach as of the entry into the loan agreement and remain as long as the conditions

3 Garrett argues that the Court could equate Deer Creek’s actions to a government taking

in violation of the Fifth Amendment because Garrett is improving the property at its

expense, and others will benefit from Garrett’s improvements. Defendant argues that there

can be no taking where there is no government action. The Court agrees with Defendant.

The Tenth Circuit rejected a takings argument on other grounds in Pittsburg Cnty. Rural

Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 717–19 (10th Cir. 2004) (holding

that a federal loan to a rural water district is nearly the opposite of a taking, even where §

1926(b) protects the district from encroachment by a municipality).

for § 1926 protection . . . are met.” Pittsburg Cnty., 358 F.3d at 716 n.6. Protection under

§ 1926(b) “is limited to . . . the geographical area in which the association provides or

makes service available.” Bell Arthur Water Corp. v. Greenville Utilities Comm’n, 173

F.3d 517, 520 (4th Cir. 1999); see also Chesapeake Ranch Water Co. v. Bd. of Comm’rs of

Calvert Cnty., 401 F.3d 274, 278 (4th Cir. 2005) (“The protection . . . is limited to the area

in which the association provides or makes available water service . . . .”). Once § 1926(b)

protection attaches, the water association has “exclusive water service rights over that

property” until the loan is paid off or until the association “fails to make service ‘available’

to the property in question.” Pittsburg Cnty., 358 F.3d at 716 (emphasis in original).

Garrett’s argument that Deer Creek needs a defined service area goes back to the

distinction between rural water districts and water associations under Oklahoma law. Rural

water districts created under Title 82 of the Oklahoma statutes have a defined service area.

With rural water districts, the “boundaries . . . are determined at the time the board of

county commissioners ‘declare[s] the land described in the petition or any part thereof to

be incorporated as a district.’” Rural Water Dist. No. 5 Wagoner Cnty., Okla. v. City of

Coweta, 949 F. Supp. 2d 1091, 1096 (N.D. Okla. 2013) (quoting OKLA. STAT. tit. 82, §

1324.6). There is no such limitation on rural water associations. Nothing in the Oklahoma

General Corporation Act requires a private, non-profit water association to have a defined

service area.

Furthermore, the Court is only addressing Garrett’s property. See Rural Water

Sewer & Solid Waste Mgmt., Dist. No. 1, Logan Cnty., Oklahoma v. City of Guthrie, 654

F.3d 1058, 1065 (10th Cir. 2011) (finding that a customer-by-customer basis was

appropriate for determining whether service was made available); Glenpool Util. Servs.

Auth. v. Creek Cnty. Rural Water Dist. No. 2, 861 F.2d at 1217 (deciding the right to furnish

water related only to the parties before the court). Deer Creek has had an 8-inch water main

on Garrett’s property since 1972. Deer Creek serves the properties to the north, east, and

west of Garrett. Garrett is not left guessing as to whether its property falls within the area

that Deer Creek may service.

b. Service Made Available

The second prong of § 1926(b) is whether the water association made service

available to the disputed area. Sequoyah, 191 F.3d at 1197. The Tenth Circuit relies on the

“pipes in the ground” test to make this determination. Id. at 1203. The inquiry is “whether

the association has proximate and adequate ‘pipes in the ground’ with which it has served

or can serve the disputed customers within a reasonable time.” Id. A water association can

satisfy this test by showing “‘that it has adequate facilities within or adjacent to the area to

provide service to the area within a reasonable time after a request for service is made.’”

Id. (quoting Bell Arthur, 173 F.3d at 526). This inquiry focuses on whether an association

“has the capacity to provide water service to a given customer.” Sequoyah, 191 F.3d at

1203.

Deer Creek asserts it satisfies the test because it “literally has pipes in the ground.”

Def.’s Mot. at 19. Deer Creek has an 8-inch water main on Garrett’s property and has since

1974. Further, Deer Creek states it has the capacity to serve the Addition. William Myers,

Deer Creek’s expert, included a table in his expert report that summarized the “water rights

owned by Deer Creek.” Ex. 5, [Doc. No. 53-5] (Myers Report). Myers asserted that the

“current total water rights capacity of the system is 944.97 million gallons per year. The

average usage of the system from 2014 to 2018 is 315.4 million gallons per year.” Id.

Garrett, however, argues that Deer Creek does not have the capacity to serve the

Addition because the 8-inch main is inadequate. Garrett relies on an excerpt from Myers’s

deposition and Deer Creek employee Debbie Well’s deposition where both witnesses

concede that the existing infrastructure cannot adequately serve the Addition. See Ex. 3,

[Doc. No. 53-3] (Myers Dep.); see also Ex. 1, [Doc. No. 53-1] (Wells Dep.). Garrett

contends that the figures cited by Myers are what Deer Creek could theoretically withdraw,

not what Deer Creek’s existing infrastructure could actually withdraw.

In analyzing the pipes in the ground test, another judge in this district found that a

water line that was seven miles away from the addition in question was not adjacent to the

land for purposes of making service available. TP Real Estate LLC v. Rural Water, Sewer

& Solid Waste Mgmt. Dist. No. 1, Logan Cnty., Okla., No. CIV-09-748-R, 2010 WL

11508774, at *5 (W.D. Okla. Apr. 19, 2010). In addition to the distance, the existing line

was incapable of meeting the party’s request. Id. The existing infrastructure would serve

150 homes, but the request was for 357 homes. Id.

Similarly, the 8-inch main on Garrett’s property is insufficient to meet Garrett’s

request for the Addition. Although Myers cites the total water availability, the existing

infrastructure is currently incapable of providing that much water. Thus, the analysis shifts

to whether Deer Creek could make service available within a reasonable time.

c. Reasonable Time

Garrett asserts that Deer Creek has no intention of building any of the necessary

infrastructure. As part of Deer Creek’s conditions of service, Garrett must bear the cost of

the infrastructure upgrades to service the Addition. Under this standard, Garrett argues that

“no [water] entity would ever fail the test,” if it required the applicant to upgrade

infrastructure to make service available.

Deer Creek does not dispute that it does not intend to pay for the new infrastructure.

In its Reply, Deer Creek cites Oklahoma law that it claims authorizes it to make Garrett

bear the cost of the development [Doc. No. 62] at 7–9. As to the timeframe, Deer Creek

states the project can be completed within six months. Plaintiff has not challenged this

timeline or provided any evidence to the contrary.

Aside from disputing who should bear the costs of the improvements, there is no

evidence that the improvements could not be completed within Deer Creek’s estimated

timeline. This litigation has been ongoing since April 2018. By comparison, six months

seems a reasonable amount of time in which to complete the work. Thus, the inquiry shifts

to whether Deer Creek’s intention that Garrett bear infrastructure costs precludes a finding

that it has made service available under § 1926(b).

d. Costs

Even if a provider has adequate facilities to provide service, “the cost of those

services may be so excessive that it has not made those services ‘available’ under §

1926(b).” Rural Water Dist. No. 1., Ellsworth Cnty., Kan. v. City of Wilson, Kan., 243 F.3d

1263, 1271 (10th Cir. 2001). “There is some point at which costs become so high that

assessing them upon the user constitutes a practical deprivation of service.” Id. To make

service available, the rates must not be “‘unreasonable, excessive, and confiscatory.’” Id.

(quoting Bodine v. Osage Cnty. Rural Water Dist. No. 7, 949 P.2d 1104, 1110 (Kan. 1997)).

In analyzing this, courts have considered: “(1) whether the challenged practice allows the

district to yield more than a fair profit; (2) whether the practice establishes a rate that is

disproportionate to the services rendered; (3) whether other, similarly situated districts do

not follow the practice; (4) whether the practice establishes an arbitrary classification

between various users.” Ellsworth, 243 F.3d at 1271. These factors should be assessed

under the totality of the circumstances. Id.

Garrett claims the impact fees for drilling new wells is $1,275,000. This price is

figured proportionately based on the cost to serve each new lot. Garrett asserts, however,

that Deer Creek plans to charge $1,600,00.00 to drill the wells. This number includes only

the drilling—not the costs of any unsuccessful wells, power costs, inspection fees,

maintenance, or the value of the donated surface and water rights. Garrett claims that Deer

Creek is attempting to charge $325,00.00 more than the proportionate impact. Further,

Garrett states that the cases cited by Deer Creek related to costs deal with basic

infrastructure improvements like extending a water line, not drilling wells.

Deer Creek argues Garrett’s expert testified that the numbers do not yield more than

a fair profit, confirmed it was proportional, and admitted that Garrett could develop the

property profitably with the proposed costs. Deer Creek also argues that these costs did not

prohibit Garrett from proceeding with the project as Garrett initially accepted the terms in

2015 without objection.

Costs must not be excessive, unreasonable, and confiscatory. Based on the evidence

presented, the Court finds that there are genuine issues of material fact as to whether the

costs were excessive, unreasonable, and confiscatory, thereby making service unavailable

to Plaintiff. Thus, summary judgment is precluded on this issue. See Rural Water Dist. No.

5, Wagoner Cnty., Okla. v. City of Coweta, 949 F. Supp. 2d at 1103 (finding genuine issues

of material fact that precluded summary judgment).

CONCLUSION

For these reasons, the Court finds that Plaintiff is not entitled to a determination as

a matter of law that Deer Creek’s loan from the USDA violates the Tenth Amendment,

Deer Creek needs a defined service area, and Deer Creek’s actions constitute a taking under

the Fifth Amendment.

Further, the Court finds that Plaintiff is entitled to a determination as a matter of law

that Defendant does not presently have the capacity to serve the Addition. Defendant is

entitled to a determination as a matter of law that the necessary additions could be

completed within a reasonable time. Summary judgment is not appropriate on any other

issue addressed by the Motions.

IT IS THEREFORE ORDERED that Defendant’s Motion for Summary

Judgment [Doc. No. 52] is GRANTED in part and DENIED in part as set forth herein.

Further, Plaintiff’s Motion for Summary Judgment is GRANTED in part and DENIED in

part as set forth herein. Whether the costs associated with the improvements result in

services not being made available to Plaintiff remains for trial.

IT IS SO ORDERED this 12" day of January, 2021.

lh yr

TIMOTHY D. DeGIUSTI

Chief United States District Judge

17