DuLaney v. Oklahoma State Department of Health

LAVENDER, V.C.J.,

concurring in part, dissenting in part:

While I concur the mineral interest owners have a property interest which entitles them to due process I dissent from that part of the majority opinion which holds adjacent landowners have a constitutionally protected right based on the due process clauses of OKLA. CONST, art. 2, § 7 and U.S. CONST, amend. XIV to notice and an opportunity for ■ a hearing before a landfill permit is granted to their neighbor and to the overruling of Stewart v. Rood, 796 P.2d 321 (Okla.1990) and Sharp v. 251st Street Landfill, Inc., 810 P.2d 1270 (Okla.1991), to the extent those cases held no such constitutional right exists. Athough it may be good public policy for the Legislature to allow adjacent landowners or others a statutory right to a hearing, public policy in this area should be set by the Legislature, not this Court, under the guise of a constitutional mandate. Under its mandate the majority unwisely and without basis expands the range of constitutionally protected interests in the due process area and, in effect, transforms settled tort law and equitable remedies into constitutional swords by which adjacent landowners are allowed to become the overseer of their neighbor’s property, cutting down the use of that property merely on the allegation that use may, at some unspecified time in the future, cause them harm. In doing so the majority makes several mistakes as to the reach of due process principles which I will explain below.

In both Stewart and Sharp we held adjoining or nearby landowners were not entitled *686 to a hearing prior to issuance of a landfill permit to their neighbor under State or federal due process principles because no legally recognized interest of such landowners was invaded by the granting of such a permit. Stewart, 796 P.2d at 383-335 ; Sharp, 810 P.2d at 1273 . Our rulings in these cases left open the possibility for remedial relief in the form of damages should the landfill cause injury to an adjacent landowner or injunctive relief, including the ability to obtain such latter relief under generally accepted equitable principles should the landfill be found to be an anticipatory nuisance at a particular permitted location or that it would probably result in pollution of water sources of nearby landowners. Stewart, 796 P.2d at 324 , f.n. 2; Sharp, 810 P.2d at 1275-1276 . In my view, Stewart and Sharp were correctly decided and should remain the law in this jurisdiction.

The central fallacy in the majority’s reasoning as to adjacent landowners is that it fails to recognize the licensing process, directed as it is to another person’s land, does not implicate in any direct, substantial and immediate way any property interests of adjacent landowners subject to constitutional due process protection at the administrative level. Only if the administrative process is directed toward depriving adjacent landowners of some right in life, liberty or property would they be entitled to constitutional notice and an opportunity for a hearing at the administrative level. The process is not so directed and the recent case of State ex ret. Corporation Commission v. Texas County Irrigation and Water Resources Association, Inc., 818 P.2d 449 (Okla.1991), illustrates the point.

In Texas County we held all owners of water rights in the Ogallala Aquifer were not entitled to personal notice of a proceeding before the Oklahoma Corporation Commission (OCC) brought by two companies seeking to use enhanced recovery methods to increase the recovery of oil from a common source of supply, which had the potential for polluting the fresh water strata of the water rights owners. Id. at 452^154. We recognized in Texas County that where OCC had been given the duty to protect the underlying fresh water strata from potential polluting effects that the water property rights of surrounding property owners were not invaded by the proceeding, but were protected therein. Id. at 453-454 . We held such a situation involved a proper and lawful exercise of the police power (i.e. the duty to protect the fresh water from pollution), which did not implicate the due process rights of those nearby owners sought to be protected.

Stewart, Sharp and Texas County merely exhibit a recognition that where the government in a licensing or similar proceeding does not directly affect the legal rights of nearby property owners or deprive them of any constitutionally protected interest in life, liberty or property, procedural due process principles are simply not implicated. See O’Bannon v. Town Court Nursing Center, 447 U.S. 773 , 100 S.Ct. 2467 , 65 L.Ed.2d 506 (1980) (nursing home residents have no constitutional right to a hearing before a state or federal agency may revoke the home’s authority to provide them with nursing care at government expense even though the revocation may be harmful to some patients, including loss of their present home in the nursing care facility). O’Bannon , relying on the Legal Tender Cases, 12 Wall 457, 551, 79 U.S. 457, 551 , 20 L.Ed. 287 (1870), recognized that the due process clause has always been understood as referring only to direct appropriation or interference with protected rights and not to the consequential injuries resulting from the exercise of lawful power. O’Bannon, 447 U.S. at 789 , 100 S.Ct. at 2477 . The United States Supreme Court in O’Ban-non distinguished between government action that directly affects a citizen’s legal rights, or imposes a direct restraint on his liberty, and action directed against a third party and that affects the citizen only indirectly or incidentally. Id. at 788 , 100 S.Ct. at 2476 . In the former situation due process protections attach; in the latter they do not.

The licensing process at issue here is not directed at the legal rights of nearby property owners, but at the landowner applying for the license to use his land as a landfill. Any injury or harm nearby owners may suffer can, thus, be considered nothing other than the indirect or incidental effect of gov *687 ernment action which is directed against or at a third party. Accordingly, nearby landowners simply have no constitutionally based due process rights in the licensing scheme.

The majority’s holding that nearby property owners are entitled as a matter of constitutional due process to a hearing in the licensing by the government of use of their neighbor’s property improperly expands the due process protections of the Oklahoma and United States Constitutions and amounts to a ruling one property owner has a constitutionally based due process right to be the overseer of the use of his neighbor’s property. Such a holding opens up a myriad of licensing proceedings to similar due process challenges, e.g. licenses for a laundry, a tavern, a liquor store, a slaughterhouse, a gas station or convenience store. It also opens up numerous farming or animal husbandry activities which may be regulated by the State to similar due process attacks by neighbors if a permit from the government is necessary or is made necessary by legislative enactment. Other examples can surely easily be found.

All of the activities mentioned above may be deemed offensive in one manner or another by some persons and all hold the potential for environmental degradation of neighboring property or other nuisance causing effects if they are not conducted in an appropriate way. That is why Stewart and Sharp left open the possibility of monetary and/or in-junctive relief, including relief in the form of an injunction to stop an anticipated nuisance even after a landfill has been permitted. I reiterate, however, although it may be good public policy for the Legislature, by statute, to allow neighbors or other citizens the right to notice and an opportunity for a hearing before their neighbor is allowed to engage in a certain activity under a government permit, that decision should be made by the Legislature and not this Court by misguided constitutional decree.

The error of the majority is easily seen by a review of two United States Supreme Court cases it cites in partial support of its holding. The majority cites Association of Data Processing Service Organizations v. Camp, 397 U.S. 150 , 90 S.Ct. 827 , 25 L.Ed.2d 184 (1970), for the proposition the modern trend is to expand or enlarge the class of people who may protest administrative action. It also relies on United States v. SCRAP, 412 U.S. 669 , 93 S.Ct. 2405 , 37 L.Ed.2d 254 (1973), to assert that aesthetic and environmental well-being, like economic prosperity, are important ingredients of the quality of life in our society. I do not disagree with these notions as a matter of policy. However, the fallacy in the majority’s reliance on these eases is that neither was 'concerned with procedural due process or whether a person was constitutionally entitled to notice or opportunity to be heard under that clause prior to administrative action. Both were concerned with whether under the federal Administrative Procedure Act and the respective federal statutory enactments there at issue (or administrative regulations) certain persons or organizations had standing to challenge administrative action. In both cases the United States Supreme Court found standing, but in no way intimated the interests sought to be protected by the respective challengers of administrative action were subject to protection under the due process clause.

What the majority has done here is engraft onto the due process clauses of both our State and federal constitutions an administrative procedure act, something this Court has no business doing and which other courts have recognized is clearly unwarranted. In BAM Historic District Association v. Koch, 723 F.2d 233 (2d Cir.1983), in rejecting a due process liberty interest challenge by community residents who sought to enjoin the operation of a shelter for homeless men in the community, the Second Circuit said the following:

The Fourteenth Amendment does not impose upon states and localities either an Administrative Procedure Act to regulate every governmental action nor an Environmental Policy Act to regulate those governmental actions that may affect the quality of neighborhood life. Whether notice and hearing procedures should be instituted to broaden public participation in governmental decisions of the sort challenged *688 in this ease remains a matter for consideration by state and local legislative bodies.

Id. at 287 .

The majority further disregards other recent authority of this Court which unequivocally shows no due process rights at the administrative level are constitutionally mandated for adjacent landowners. In Turley v. Flag-Redfern Oil Co., 782 P.2d 130 (Okla. 1989), a surface owner (who owned no mineral interest) contended he had a constitutional due process right to notice and an opportunity to be heard in an administrative proceeding before the Oklahoma Corporation Commission (OCC) when OCC heard an application to establish, reestablish, or reform an oil and gas drilling and spacing unit which included the surface owner’s property. We held an order of OCC which increased the number of wells which could be drilled did not invade any property right of the surface owner because under Oklahoma law the surface estate was servient to the mineral estate when purchased and had always been subject to the valid exercise of the police power to control the density of drilling to prevent waste of oil and gas and to protect the correlative rights of mineral interest owners. Id. at 135 .

In the oil and gas situation involved in Turley the mineral and surface interest owners are recognized to have concurrent possession of the surface. Hinds v. Phillips Petroleum Co., 591 P.2d 697, 699 (Okla.1979). In other words, both have a property interest in the surface. Surely, if no protected property interest was recognized for the surface owner in Turley , who actually owned the land where increased drilling would occur, no protected property interest can be recognized in adjacent landowners who have no recognized property interest in the land where the landfill will be located.

In my view, the majority sub silentio overrules Turley or, at least, casts a dark cloud over our holding there by its ruling in this case. A surface owner or adjacent landowner, after reading the majority’s decision will merely have to allege the potential for environmental degradation (surface, water or air) to be entitled to due process protections before OCC in the future in matters concerned with permitting oil and gas operations because it is beyond question that oil and gas operations, if they are conducted in an inappropriate manner, hold the potential for polluting the surrounding property of adjacent or nearby owners. See e.g. Portable Drilling Corporation v. Guinn, 204 Okla. 68 , 226 P.2d 923 (1950) (oil and gas lessee successfully sued when release of salt water and other deleterious substances found their way to adjacent property where it polluted surface and growing crops). Although it may be argued landfills hold the greater potential for environmental degradation, it is my view experts would surely argue the point. Further, I fail to see how the majority could differentiate the potential polluting effects of oil and gas operations (and the other activities I have previously mentioned, e.g. animal husbandry) from those of a landfill so that nearby landowners would be entitled to constitutional protection in the landfill situation, but not in the others. To so rule is to find distinction where there is no true measure of difference.

Turley also recognized that where injured parties have an alternative statutory remedy to claimed due process violations, any procedural defects are cured by the remedy afforded. Turley, 782 P.2 at 136 . In other words, even assuming a constitutionally protected interest, if the Legislature has fashioned an adequate statutory remedy, Turley holds, no due process violation will occur by the lack of notice or opportunity for a hearing at the administrative level. In Turley this Court found such an adequate alternative remedy in the form of the Oklahoma Surface Damages Act, 52 O.S.Supp.1982, § 318.2 et seq., as amended, which entitles a surface owner to compensation for injury to his property.

In regard to the present case, 63 O.S.Supp. 1986, § 2258, requires a landfill permit applicant to attempt to gain consent of persons having an occupied residence within 500 yards of the landfill site. 1 If a person’s *689 residence is within this distance and consent is not given the landfill may still be permitted if it meets all other requirements of the law. If the permit issues, however, persons within the specified distance are given a statutory cause of action against the applicant for loss of value to their land and residence caused by the operation of the landfill. Further, in any action brought for such loss of value the district court is given authority to weigh the public benefit of the proposed disposal site against the negative impact to the residences in the affected area and to enjoin operation should a determination be made the negative impact outweighs the public benefit. Appellee Most and apparently also appellees Dulaney and Harris argue they are within the 500 yard zone. The majority does not answer why in this situation, assuming these appellees do have a protected interest and they are within the 500 yard distance, Turley’s holding regarding an alternative statutory remedy would not cure any procedural due process defects, as this Court ruled the Surface Damages Act cured in Turley in regard to the surface owner. Although I do not hold the view that statutory remedy is necessary because I do not believe adjacent landowners have a protected interest sufficient to invoke due process protections in the administrative process, the majority should concern itself with this potential alternative remedy before it mandates procedural due process protections, just as this Court previously did in Turley .

The majority further errs when it relies on 60 O.S.1991, § 66, which provides that adjacent landowners have the right to lateral and subjacent support received from adjoining land. In the first instance, nowhere do ap-pellees rely on this provision and we should not base our decision in such an important ease on a theory the parties have not even contemplated. Secondly, aside from not relying on the statute, appellees make not one allegation the construction or operation of the landfill at issue will have an adverse impact on any lateral or subjacent support their land may receive from the property on which the landfill has been permitted. Thirdly, to the extent § 66 might be said to be applicable to the construction of a landfill any notice required by § 66 is not tied to the administrative permitting proceeding or any constitutional requirement for a hearing within the administrative process. If notice to an adjoining landowner is actually required under § 66 such notice is obviously separate from the administrative process, and any relief an adjoining landowner feels himself entitled under that provision should take the form of a damage action or an equitable one, which as previously mentioned, both Stewart and Sharp , have left available.

This Court has a duty to protect the constitutional due process rights of our citizens. When those rights are invaded or are actually directly threatened with invasion by unlawful government action we should be vigilant to step in and protect them. We, however, also have a duty to respect the other branches of government in our tripartite system and to recognize the roles of each of these branches. In my view, the majority has improperly stepped into the role of a super-legislature in this particular case by mandating constitutional due process protections where no constitutionally protected interest exists. The majority has, in effect, mandated the strictures of a legislative administrative procedure act, and usurped legislative power in doing so. Accordingly, for the reasons I have set forth I dissent to the holding of the majority adjacent or nearby landowners have a constitutionally protected right to procedural due process in the administrative proceeding leading to the permitting of the instant landfill and to the overruling of Stewart and Sharp to the extent those cases are inconsistent with the present holding of the majority.

I am authorized to state that Justice SIMMS, Justice HARGRAVE and Justice SUMMERS join in the views herein expressed.