CLAREMORE — County commissioners said their phones were ringing yesterday following the Progress story about the Material Service lawsuit.

“We have tried to negotiate with them,” said District 3 Commissioner Kirt Thacker. “They’ve walked away from the table at least three times.”

District 1 Commissioner Dan DeLozier also said attempts by Rogers County to negotiate with attorneys from Material Services had failed.

“I’m not sure how much I’m legally allowed to discuss it, but we have tried to negotiate,” said DeLozier.

“We fully understood how grave the situation is,” said Thacker. “This all happened before any of the current commissioners were in office.”

The commissioners at that time were District 1 Gerry Payne, District 2 Glenn Sweet and District 3 Kenny Crutchfield.

“The Acme Brick company over west of Oologah went to mining clay for brick, and it got the community to talking about zoning. They were working on (Highway) 169 and the community was going to grow,” said Payne.

The Oologah community was driving the issue and had multiple meetings about zoning and growth in the area.

He said communities had been discussing zoning and brought it before the Board of County Commissioners.

“It eventually came to a vote and passed,” said Payne.

The decade-long legal battle has involved two law suits and various appeals and outcomes over the course of time.

Worst case scenario is Rogers County could have to pay $25 million comprised of a $12.5 million settlement awarded in October by a Mayes County jury and an additional $12 million plus requested in attorney’s fees.

If that happened, Rogers County property owners would see a dramatic increase in ad valorem taxes that would hit he county’s largest industries particularly hard. Those increases would span a three year time period.

Assistant District Attorney Barry Farbro, who has been handling the case, is working to make sure that does not happen.

“I believe the county has a good chance of getting this judgment reversed or reduced by the appellate court,” said Farbro. “The county is asserting on appeal that they (Material Service Corp.) failed to exhaust their administrative remedies before they filed the lawsuit, among other allegations of reversible error committed at the trial court level.”

On Dec. 9, 1999 Material Service Corporation entered a lease agreement (the Begley Lease) to mine and sell limestone rock on 320 acres near Oologah.

On Feb. 28, 2000 the Board of County Commissioners approved the annexation of 155 sections of land, the “Fourth Planning Area,” covering approximately 99,200 acres of land. Annexing the property put it under the jurisdictional control of the Rogers County Planning Commission and the Board of County Commissioners.

The zoning and land use regulations in place would have prohibited mining. Material Service had a permit pending with the Oklahoma Department of Mines but now could not proceed.

County Commissioner Mike Helm said things have changed so much since the dispute started a decade ago, he is not aware of what the original problems might have been between the Board and MSC.

Thacker points out that it is unknown whether the mining permit would have been approved by the state.

DeLozier said there were already several established vendors in that area. How much a new company would have profited is unknown.

MSC could have requested a zoning change from county commissioner but did not, said Farbro.

On July 31, 2003 the annexation was declared void as to the Begley Lease by Material Service Corp because of a mistake in the hearing publication.

On May 7, 2007, MSC filed a second law suit, CJ-2004-234 seeking damages for “inverse condemnation.”

The allegation is that MSC was prohibited from mining the Begley Lease due to the annexation.

“It’s a lucrative business. It would have saved the taxpayers a lot of money,” said Mattingly.

Farbro pointed out that after the zoning did change on the property, MSC never mined for limestone.

“The Highway 169 project was near this property. Rogers County was growing,” said Mattingly. “By the time it was over ... The highway project had finished, growth was tapering down, and it was not as economically viable as it was before.”