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TABLE
OF CONTENTS
Table of Authorities
Introduction
1. The Doctrine of Primary Jurisdiction
2. Primary jurisdiction in light of the Ground Water
Management and Protection Act and the recent adoption
of LB 962
3. The effect, if any, of the adoption of LB 962 on
this appeal
4. Whether the ground water management and protection
act or LB 962 have abrogated any common law remedies
that the appellant might have, or provide an adequate
remedy at law
TABLE
OF AUTHORITIES
CASES
Bamford v. Upper Republican Natural
Resources District, 245 Neb. 299, 512 N.W.2d 642
(1994)
Dennis v. Kickapoo Land Co., 771 S.W.2d 235
(Texas Ct. Civ. Apps. 1989)
Houston & Texas Cent. R.R. v. East, 98
Tex. 146, 81 S.W. 279 (1904)
Humphrey Feed & Grain, Inc. v. Union Pacific
Railroad Co., 199 Neb. 189, 257 N.W.2d 391 (1977)
In re Big Horn River System, 85 P.3d 981 (Wyo.
2003)
In re General Adjudication of All Rights to Use
Water in Gila River System and Source, 201 Ariz.
307, 35 P.3d 68 (2001)
In re Interest of Battiato, 259 Neb. 829, 613
N.W.2d 12 (2000)
Maricopa County Muni. Water Conserv. Dist. No. One
v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369
(1931)
Olson v. City of Wahoo, 124 Neb. 802, 248 N.W.
304 (1933)
State v. Hagerman Water Right Owners, Inc.,
130 Idaho 727, 947 P.2d 400 (1997)
Wasserburger v. Coffee, 180 Neb. 149, 141 N.W.2d
738 (1966)
Yeo v. Tweedy, 34 N.M. 611, 286 P. 970 (1929)
STATUTES
Neb. Rev. Stat. §§46-710 (Supp.
2004)
Neb. Rev. Stat. §46-713 (Supp. 2004)
Neb. Rev. Stat. §46-714 (Supp. 2004)
Neb. Rev. Stat. §46-715 (Supp. 2004)
Neb. Rev. Stat. §46-740 (Supp. 2004) (formerly
§46-656.26)
Neb. Rev. Stat. §§46-656.50 to 46-656.51 7
OTHER
Drain, Streamflow Declines Caused
by Groundwater Development in Pumpkin Creek Basin,
in Ground Water/Surface Water Interactions, American
Water Resources Association (2002)
Glennon and Maddock, The Concept of Capture: The
Hydrology and Law of Stream/Aquifer Interactions,
43 Rocky Mt. Min. L. Inst. (1997)
Nebraska Department of Natural Resources, 54th Biennial
Report, 2001-2002
Stephen D. Mossman, Whiskey is for Drinkin' But
Water is for Fightin' About: A First-Hand Account of
Nebraska's Integrated Management of Ground and Surface
Water Debate and the Passage of LB108, 30 Creighton
L. Rev. 67 (1996)
Tangborn, Hydrologic Changes in North Platte River
Subbasin Between Stateline and Lewellen Gages (1953-95),
Hymet Company, 1996
Introduction
Article XV, section 6 of the Nebraska
Constitution provides that priority of appropriation
determines the right to use streamflow in time of shortage.
Tributary ground water is part of streamflow. One may
choose to ignore reality; other courts adhere to fanciful
notions of "underground streams" and "subflow".
See, e.g., Maricopa County Muni. Water Conserv.
Dist. No. One v. Southwest Cotton Co., 39 Ariz.
65, 4 P.2d 369 (1931); Yeo v. Tweedy, 34 N.M.
611, 286 P. 970 (1929). Some even refuse to acknowledge
that streams and ground water are in hydrologic connection.
Texas, for example, continues to follow the law of the
biggest pump. Dennis v. Kickapoo Land Co.,
771 S.W.2d 235 (Texas Ct. Civ. Apps. 1989). As a result,
the public resource in Texas has been depleted to the
point of uselessness. See, Glennon and Maddock, The
Concept of Capture: The Hydrology and Law of Stream/Aquifer
Interactions, 43 Rocky Mt. Min. L. Inst. (1997).
Once the reality of the hydrologic connection
is recognized, however, the protection of the constitutional
mandate is inescapable. A function of this court, perhaps
it's most important function, is to protect the rights
the people of Nebraska have chosen to enshrine in our
constitution. To ignore the constitutional protection
afforded appropriators is to permit the actions of individuals
to destroy the public's investment in irrigation storage
and delivery systems; the effect is to create a private
right of condemnation, not condemnation of individual
uses of water, but of the public's use. Lake McConaughy
is at its lowest level, ever. Depletion of the flow
of Pumpkin Creek by unregulated ground water withdrawals
has contributed to this condition. See, Drain, Streamflow
Declines Caused by Groundwater Development in Pumpkin
Creek Basin, in Ground Water/Surface Water Interactions,
American Water Resources Association (2002); Tangborn,
Hydrologic Changes in North Platte River Subbasin Between
Stateline and Lewellen Gages (1953-95), Hymet Company,
1996.
1.
The Doctrine of Primary Jurisdiction
Humphrey Feed and Grain, Inc. sued the
Union Pacific Railroad for the loss of $21,677.36 worth
of grain. The claim was based on the federal law in
effect at the time, a statute enacted by Congress to
provide national uniformity with respect to claims against
common carriers. "Union Pacific's liability for
losses is governed by Title 49 U.S.C.A., §20, par.
(11) known as the Carmack Amendment, which imposes liability
of a carrier for the full actual loss, damage or injury
to property of the shipper. With the enactment of the
Carmack Amendment, Congress superceded diverse state
laws with a national uniform policy governing interstate
carriers' liability for property loss, and the federal
law governs liability for loss or damage." Humphrey
Feed & Grain, Inc. v. Union Pacific Railroad Co.,
199 Neb. 189, 257 N.W.2d 391 (1977). The Court discussed
the basic principles of primary jurisdiction: "The
effect of the doctrine of primary jurisdiction is to
preclude resort to the courts in the first instance,
or to preclude the court from supplying a remedy, or
passing upon particular issues until the issues have
been passed upon by the administrative agency."
Id., 199 Neb. at 207, 257 N.W.2d at 401. In
the Humphrey case, the court concluded that the elevator's
claim for lost profits should not have been considered
by the district court, and that the court should have
deferred jurisdiction to the Interstate Commerce Commission.
In the present case, there is no recognition
in current Nebraska case law of a common law cause of
action on the part of an appropriator against a ground
water user; recognition of the constitutional basis
for that cause of action is what's at issue here. Also,
there is no legislative remedy provided to the appropriator.
At least, no remedy which recognizes the constitutional
protection of appropriations. In the Humphrey case,
there were both. The common law, the Nebraska statutory
scheme, and federal law all provided remedies to the
elevator. The court concluded, because of the nature
of the dispute, that the technical expertise of the
regulatory agency provided the better forum for resolution
of the issue; for uniformity, and the other policy reasons
described by the court.
In contrast to the Carmack Amendment,
which specifically provided that the shipper could recover
" . . . the full actual loss, damage, or injury
to property of the shipper. . ." Id.,
199 Neb. at 197, 257 N.W.3d at 397, the Nebraska Groundwater
Management and Protection Act (the Act) declines to
provide a remedy to the appropriator based on the constitutional
mandate. This Court has reaffirmed the basic tenants
of primary jurisdiction subsequent to the Humphrey
case. In In re Interest of Battiato, 259 Neb.
829, 613 N.W.2d 12 (2000) the issue was whether the
doctrine of primary jurisdiction required the application
of federal anti-attachment statutes to prevent the enforcement
of a county court order for payment of attorney's fees.
The court observed: "The primary jurisdiction doctrine
applies whenever enforcement of a claim, originally
cognizable in the courts, requires the resolution of
issues that have been placed within the special competence
of an administrative body in accordance with the purpose
of a regulatory scheme." 259 Neb. at 837, 613 N.W.
2d at 18. This Court has not recognized a cause of action
in favor of an appropriator against a ground water user.
The issue is at yet unaddressed. No claim "originally
cognizable in the courts" yet exists in Nebraska.
The special competence of an administrative body could
be called upon to decide issues of fact in accordance
with the regulatory scheme, but only if the regulatory
scheme afforded a remedy consistent with the constitution.
The regulatory scheme in this case ignores the constitutional
mandate, recognizes no cause of action and affords no
remedy.
The Battiato court also pointed
out: "preliminary resort to the administrative
agency is required where the inquiry is essentially
one of fact and of discretion in technical matters and
when uniformity can be secured only if determination
is made by that agency." 259 Neb. at 837, 613 N.W.2d
at 18. There is no issue of fact for decision in this
case. The district court dismissed the Plaintiff's Complaint
in response to the Defendants' Rule 12 motions. The
issue here is purely one of law: whether an appropriator
has a cause of action against a ground water user who
is making an unpermitted diversion of streamflow. This
is nearly the same question as one asked from the bench
at the initial oral argument of this case.
In light of this, the doctrine of primary
jurisdiction simply has no application here. The Battiato
court agreed: "The doctrine does not apply where
a pure question of law is at issue." 259 Neb. at
837, 613 N.W.2d at 18. The balance of the court's analysis
on this issue confirms this reasoning: "The doctrine
does not apply in relation to a question which, while
properly determinable by an administrative tribunal,
does not involve a question of fact, but one of pure
law, is determinable apart from the exercise of administrative
discretion, and the requisite uniformity of determination
is attainable otherwise than by confining determination
of the question to the administrative tribunal."
259 Neb. at 838, 613 N. W. 2d at 18 -19. This case presents
the "pure" question of law.
2.
Primary jurisdiction in light of the Ground Water Management
and Protection Act and the recent adoption of LB 962.
The Ground Water Management and Protection
Act (the Act) was originally enacted in 1975. As originally
structured, it provided a mechanism by which Natural
Resources Districts (NRDs) could give effect to the
modified correlative rights doctrine adopted by this
Court in Olson v. City of Wahoo, 124 Neb. 802,
248 N.W. 304 (1933). NRDs could create ground water
management areas, areas in which ground water quantity
was insufficient to meet the needs of all users, and
implement regulations limiting withdrawals in such a
way that all would share in shortages. See, Bamford
v. Upper Republican Natural Resources District,
245 Neb. 299, 512 N.W.2d 642 (1994).
The Act was substantially modified by
LB 108, enacted in 1995. See, Stephen D. Mossman, Whiskey
is for Drinkin' But Water is for Fightin' About: A First-Hand
Account of Nebraska's Integrated Management of Ground
and Surface Water Debate and the Passage of LB 108,
30 Creighton L. Rev. 67 (1996) (hereinafter Mossman).
The legislature has further modified the Act by passage
of LB 962, (codified, in part, as Neb. Rev. Stat. §§46-710
et seq. (Supp. 2004)). LB 108 provided, in theory, an
ability on the part of NRDs to regulate ground water
withdrawals to protect streamflow. Neb. Rev. Stat. §46-740
(Supp. 2004) (formerly §46-656.26), and see Mossman,
supra. The authority was vested in the Department
of Natural Resources (DNR) to regulate ground water
withdrawals to protect streamflow if there was a risk
of violating an interstate compact, decree or agreement.
Neb. Rev. Stat. §§46-656.50 to 46-656.51 (repealed
by Laws 2004, LB 962 §119). LB 962 provides a somewhat
different mechanism by which ground water withdrawals
can be regulated to protect streamflow. The DNR may
now designate river basins as either fully appropriated
or over-appropriated. Neb. Rev. Stat. §46-713 (Supp.
2004). This ends new well drilling in the effected basin
or reach. Id., §46-714. (Although irrelevant,
it also prevents 'the issuance of any new appropriations.
This is irrelevant because no new direct flow appropriations
have been granted in the Pumpkin Creek watershed since
1968 and a moratorium on new appropriations in the Pumpkin
Creek watershed has been in effect since 1979. Nebraska
Department of Natural Resources, 54th Biennial Report,
2001-2002. (hereinafter 54th Biennial Report))
The DNR then cooperates with the effected
NRD or NRDs to create an integrated management plan
(IMP). The IMP must, at a minimum, insure compliance
with decrees, compacts and agreements. Id.,
§46-715. The IMPs will be structured in an effort
to reduce use sufficiently to reach sustainability,
that is, to permit all uses to continue indefinitely.
This is a laudable scheme. The problem,
however, is obvious. The legislature completely ignored
the constitution. Priority of appropriation determines
which uses of streamflow may continue in time of shortage,
and while the imagined disconnectedness of surface water
and ground water gave courts a simple excuse to ignore
impending conflicts for many years in some jurisdictions,
see, e.g. Houston & Texas Cent. R.R. v. East,
98 Tex. 146, 81 S.W. 279 (1904), such an ignorant fiction
is no longer relevant. The statute simply pays no attention
to the constitutional foundation upon which use of the
limited resource is allocated in time of shortage.
3.
The effect, if any, of the adoption of LB 962 on this
appeal.
Pending in the Nebraska Court of Appeals
is Case No. A-04-000836, Central Ne. Public Power and
Irrigation District v. Irrigation Well Owners. The Central
Nebraska Public Power and Irrigation District (Central)
complained to the DNR that unpermitted diversions upstream
of Central's diversion dam (located just below the confluence
of the North and South Platte Rivers east of the city
of North Platte) are depleting streamflow in violation
of the appropriations Central holds in trust for the
farmers who are dependent upon the water rights for
irrigating their crops. The Complaint was dismissed
by the Director; Central has appealed. There are about
2,200 unpermitted diversions upstream of Central's diversion
dam, according to the transcript filed by DNR with the
Clerk of the Supreme Court and Court of Appeals. In
this case, the Plaintiff, Spear T Ranch, has filed suit
against 24 upstream ground water users, seeking injunctive
relief and damages. Can a district court in Morrill
County be expected to resolve a conflict involving 24
defendants? Can a district court in Lincoln County (or
Keith, Garden, Morrill or Scotts Bluff County, depending
on venue) be expected to resolve a conflict involving
2,200 defendants?
The DNR administers about 8,500 appropriations.
54th Biennial Report. The DNR has maintained
continuous adjudication of the appropriations in the
entire state. This is a record of performance unparalleled
in water right adjudication processes in the western
states. See, e.g., In re Big Horn River System,
85 P.3d 981 (Wyo. 2003); In re General Adjudication
of All Rights to Use Water in Gila River System and
Source, 201 Ariz. 307, 35 P.3d 68 (2001); State
v. Hagerman Water Right Owners, Inc., 130 Idaho
727, 947 P.2d 400 (1997).
This court's inquiry concerning the
doctrine of primary jurisdiction can be understood to
raise the question whether the DNR or NRDs are the appropriate
forums for adjudication of the multitude of claims of
competing unpermitted diversions that apparently exist.
Clearly, the DNR is very experienced in such a complex
milieu of geology, hydrology and water law. But deference
to the DNR or the NRDs can't happen without an answer
to the fundamental question raised by this appeal: whether
unpermitted diversions of streamflow may continue unabated,
in violation of the constitution. Only this court can
answer the "pure" question of law. Primary
jurisdiction may later apply in the context of resolution
of competing claims; first, the constitutional right
of appropriators must be protected.
4.
Whether the Ground Water Management and Protection Act
or LB 962 have abrogated any common law remedies that
the appellant might have, or provide an adequate remedy
at law.
Abrogation of common law rights, and
concurrent remedies, has occurred in Nebraska water
law. See, Wasserburger v. Coffee, 180 Neb.
149, 141 N.W. 2d 738 (1966). However, a legislative
abrogation of rights which are protected by a specific
constitutional provision is simply not possible. Thus,
while the constitution could be amended to provide for
some other method of allocating water in time of shortage,
the legislature is simply without power to accomplish
the task, absent such an amendment.
Dated this 28th day of July, 2004.
Respectfully submitted,
THE CENTRAL NEBRASKA PUBLIC POWER
AND IRRIGATION DISTRICT
Anderson, Klein, Swan & Brewster
417 East Avenue, P.O. Box 133
Holdrege, NE 68949-0133
Phone (308) 995-4458
Its Attorneys
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