## Facts

- The Organic Act of 1890 extended the English common law to the Indian Territory, and Oklahoma later codified that adoption; the common law included the riparian doctrine.
- Under Oklahoma’s common-law riparian doctrine, a landowner whose land touches a stream holds a right to make reasonable use of the stream and to have the stream’s natural flow/underflow continue, subject to the correlative rights of other riparian owners.
- Oklahoma also enacted statutes creating an administrative permitting scheme for appropriative water rights, creating tension between riparian rights and statutory appropriation.
- In 1963, the Legislature amended the stream-water statutes to limit riparian use largely to domestic purposes and to treat remaining stream water as public water subject to appropriation, without providing a compensation mechanism for the loss of non-domestic riparian uses.
- The City of Ada held an existing appropriation and, in 1980, applied to the Oklahoma Water Resources Board (OWRB) to amend its permit to increase its diversion from Byrd’s Mill Spring in the Clear Boggy Creek system.
- OWRB granted the City’s amended application to appropriate additional stream water.
- Franco-American Charolaise, Ltd., and other downstream riparian owners and existing appropriators challenged the order, arguing that the 1963 amendments unconstitutionally took vested riparian rights without just compensation and that OWRB failed to account for existing rights and downstream domestic uses when determining water “available for appropriation.”
- On judicial review of the agency order, the district court entered findings and legal conclusions recognizing riparian rights as vested property and directing that existing riparian rights and other protected uses be subtracted before approving new appropriations; it also addressed how OWRB should evaluate the City’s “need,” including consideration of other water sources.
- OWRB and the City appealed to the Oklahoma Supreme Court.

## Issues

1. Are Oklahoma common-law riparian rights vested property rights protected by the Oklahoma Constitution’s just-compensation requirement?
2. Do the 1963 stream-water amendments unconstitutionally curtail or extinguish vested riparian rights (beyond domestic use) without acquisition/condemnation and compensation?
3. In deciding whether water is “available for appropriation,” must OWRB account for existing vested rights and protected uses, including downstream domestic use and riparian rights?
4. In determining a municipality’s “need” for additional stream water, may (or must) OWRB consider other available supplies, including groundwater?

## Decision

- The Oklahoma Supreme Court held that riparian rights recognized under Oklahoma’s adopted common law are vested rights that are part of the landowner’s property and are protected by Okla. Const. art. 2, § 24.
- The Court held the 1963 amendments are unconstitutional to the extent they attempt to convert or sharply limit vested riparian rights (other than domestic use) without acquisition/condemnation and payment of just compensation.
- The Court recognized that the State may regulate water use to prevent waste and require beneficial use, but regulation cannot be used to destroy vested riparian rights without compensation.
- The Court agreed in substance that OWRB’s “available for appropriation” determination must treat existing rights as senior constraints and must account for protected uses (including existing riparian rights and downstream domestic uses) before allocating water to new or expanded appropriations.
- The Court held OWRB may consider other water sources, including groundwater, when evaluating a city’s showing of “need” for an additional stream-water appropriation.
- Disposition: the trial court’s order on appeal from the agency was affirmed in part and reversed in part, and the cause was remanded with directions for further proceedings consistent with the opinion.

## Legal Principles

- Oklahoma’s riparian rights, derived from the adopted common law, are vested property rights incident to riparian landownership.
- A statute that materially curtails or extinguishes vested riparian rights, without acquisition/condemnation and just compensation, violates Okla. Const. art. 2, § 24.
- Oklahoma recognizes a blended system in which riparian and appropriative rights coexist; the administrative appropriation system operates subject to prior vested rights.
- In computing stream water “available for appropriation,” OWRB must account for senior constraints, including existing appropriations, downstream domestic requirements, and vested riparian rights.
- In evaluating “need” for a municipal appropriation, OWRB may consider other reasonably available supplies, including groundwater, rather than treating projected demand alone as sufficient.

## Conclusion

*Franco-American Charolaise* held that Oklahoma riparian rights are vested property protected by the state takings clause and that the 1963 stream-water amendments are unconstitutional insofar as they eliminate or drastically restrict those rights without compensation; the Court also directed that OWRB’s permitting decisions must account for existing protected uses and vested rights in determining water availability and may consider other sources, including groundwater, when assessing municipal need.


Franco-American Charolaise, Ltd. v. Oklahoma Water Resources Board, 855 P.2d 568 (1990)