In this case, the Sparkses contend that the MAY decision is ripe for reconsideration because the order would allow the state to take the couple’s groundwater and give it to people who normally rely on stream water.
“If finally approved, the MAY order will result in an unlawful taking without just compensation of applicant’s groundwater,” the Sparkses said in their application for reconsideration. “Consequently, probable error was committed by the agency in its decision as would be grounds for reversal on judicial review.”
Jerry Barnett, who serves as legal adviser for the OWRB, has recommended denying the request for reconsideration. He contended that the Sparks’ reasons for seeking review are not strong enough to grant the request.
Barnett said opponents of the MAY have already raised the takings issue, which was addressed when the board approved the order. He added that the Oklahoma Supreme Court has upheld the constitutionality of Senate Bill 288 — the bill that paved the way for the MAY decision — and rejected claims that it amounts to an illegal taking.
Barnett said he disagreed with the Sparks’ argument that the board would serve Oklahomans’ interests by reconsidering the order.
“Many issues like those raised by Sparks were raised and thoroughly litigated by many parties in support and in opposition to the MAY order,” Barnett wrote in a Nov. 8 memo to board members. “That administrative proceeding took over 1 1/2 years to complete, from the issuance of the tentative determination in March 2012 through the entry of the final determination in October 2013.
“The board order is sound. There has been no good reason articulated by Sparks to warrant reconsideration of the board order.”
The OWRB will discuss the Sparks’ request during the board’s November meeting, set for 9:30 a.m. Tuesday in Oklahoma City.
The Sparks aren’t the only ones challenging the MAY order, as several organizations that oppose the order are seeking relief through the courts. Those groups, which contend that the MAY decision violates landowners’ property rights, filed a motion last month in Oklahoma County District Court seeking judicial review of the order.