IN THE NEBRASKA SUPREME COURT

SPEAR T RANCH, INC.,

APPELLANT,

VS.

MELVIN G. KNAUB, ET AL.,

APPELLEES

APPEAL FROM THE DISTRlCT COURT OF MORRlLL COUNTY, NEBRASKA
BEFORE THE HONORABLE PAUL D. EMPSON

ADDITIONAL BRIEF OF AMICI PATHFINDER IRRIGATION DISTRICT, GERING-FORT LARAMIE IRRIGATION DISTRICT, ENTERPRISE IRRIGATION DISTRICT, WINTERS CREEK CANAL COMPANY, NINE MILE IRRIGATION DISTRICT, ROGER AND VICKI UTHMANN, AND FARMERS IRRIGATION DISTRICT

.
Steven C. Smith, NSBA #13912
Pahlke, Smith, Snyder, Petitt & Eubanks
A General Partnership
1904 First Avenue
Post Office Box 1204
Scottsbluff, Nebraska 69363-1204
Telephone: (308) 635-3161
Facsimile: (308) 632-3128
E-Mail: scs@vanlaw.net
Attorney for Amici Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

PROPOSITIONS OF LAW

ARGUMENT

I. DEFERRAL TO THE NRD OR DISMISSAL UNDER THE DOCTRINE OF PRIMARY JURISDICTION IS INAPPROPRIATE
II. THE ADOPTION OF LB 962 DOES NOTHING TO RELIEVE THE COURT 4JF ITS IMPERATIVE DUTY TO PROTECT ITS JURISDICTION TO ADJUDICATE THIS CASE
III. THE GWMPA/LB 962 DID NOT ABROGATE SURFACE WATER APPROPRIATORS COMMON LAW REMEDIES - NEITHER DOES IT ABROGATE THE GROUND WATER PUMPERS' COMMON LAW LIMITATIONS AND LIABILITIES
IV. THE GWMPA AMENDED BY LB 962 DOES NOT PROVIDE AN ADEQUATE REMEDY AT LAW

CONCLUSION

TABLE OF AUTHORITIES

CASES CITED

Bamford v. Upper Republican Natural Resources District, 245 Neb. 299, 512 N.W.2d 642; (1994)
Bargmann v. Soll Oil Co., 253 Neb. 1018,574 N.W.2d 478 (1998)
Central Platte NRD v. Wyoming, 245 Neb. 439, 513 N.W.2d 847 (1994)
Goeke v. National Farms, Inc., 245 Neb. 262, 512 N.W. 2d 626 (1994)
Hall v. Phillips, 231 Neb. 269, 436N.W. 2d 139 (1989)
In Re Interest of Battiato, 259 Neb. 829,613 N. W. 2d 12 (2000)
Olson v. City of Wahoo, 124 Neb. 802, 248 N. W. 304 (1933)
Pilot Investments Group v. Hofarth, 250 Neb. 475, 550 N.W. 2d 27 (1996)
Popple v.Rose, 254 Neb.l, 573 N.W. 2d 765 (1998)
State ex rel. Douglas v. Sporhase, 208 Neb. 703, 305 N.W. 2d 614 (1981) (reversed on other grounds, 458 U.S. 941 (1982))
Stoneman v. United Nebraska Bank, 254 Neb. 477, 577 N.W. 2d 271 (1998)
United States v. Philadelphia National Bank, 374 U.S. 321, 353 (1963)
United States v. Haun, 124 F.3d 745 (6th Circuit, 1997)

CONSTITUTIONAL PROVISIONS AND STATUTES CITED

Neb.Rev.Stat. §46-750
Neb.Rev.Stat. §§46-752 and 753

OTHER AUTHORITIES

Administrative .Law Treatise, Volume II (4th Ed. 2002), Richard J. Pierce, Jr.
Restatement (Second) of Torts, § 850A,(1979)
Restatement (Second) of Torts, § 858,(1979)

PROPOSITIONS OF LAW

I. WHEN AN EQUITY COURT HAS PROPERLY ACQUIRED JURISDICTION IN A SUIT FOR EQUITABLE RELIEF, IT WILL MAKE A COMPLETE ADJUDICATION OF ALL MATTERS PROPERLY PRESENTED AND INVOLVED IN THE CASE AND ORDINARILY WILL GRANT SUCH RELIEF, LEGAL OR EQUITABLE, INCLUDING AN AWARD OF DAMAGES, AS MAY BE REQUIRED AND THUS AVOID UNNECESSARY LITIGATION.
Goeke v. National Farms, Inc., 245 Neb. 262, 512 N.W.2d 626 (1994)

II. TO THE EXTENT THAT A STATUTE'S REMEDY IS INCOMPLETE, EQUITY MUST INTERVENE, REGARDLESS OF WHETHER THE STATUTE PURPORTS TO ABROGATE THE COMMON LAW.
Stoneman v. United Nebraska Bank, 254 Neb. 477, 577 N.W.2d 271 (1998)

III. AN OWNER OF LAND CANNOT EXTRACT AND APPROPRIATE GROUND WATER IN EXCESS OF A REASONABLE AND BENEFICIAL USE UPON THE LAND WHICH HE OWNS, ESPECIALLY IF SUCH USE IS INJURIOUS TO OTHERS WHO HAVE SUBSTANTIAL RIGHTS TO THE WATERS.
Bamford v. Upper Republican Natural Resources District, 245 Neb. 299, 512 N.W.2d 642 (1994)
Olson v. City of Wahoo, 124 Neb. 802, 248 N.W. 304 (1933)
State ex rel. Douglas v. Sporhase, 208 Neb. 703, 305 N.W.2d 614 (1981) (reversed on other grounds, 458 U.S. 941 (1982))

IV. THE RULE PROVIDING THAT STATUTES WHICH EFFECT A CHANGE IN THE COMMON LAW OR TAKE AWAY A COMMON LAW RIGHT SHOULD BE STRICTLY CONSTRUED AND A CONSTRUCTION WHICH RESTRICTS OR REMOVES A COMMON LAW RIGHT SHOULD NOT BE ADOPTED UNLESS THE PLAIN WORDS OF THE ACT COMPEL IT ALSO APPLIES TO LEGISI.JATION PURPORTING TO ABROGATE COMMON LAW LIABILITY.
Popple v. Rose, 254 Neb. 1,573 N.W.2d 765 (1998)

V. AN ADEQUATE REMEDY AT LAW MEANS A REMEDY WHICH IS PLAIN AND COMPLETE AND AS PRACTICAL AND EFFICIENT TO THE ENDS OF JUSTICE AND ITS PROMPT ADMINISTRATION AS THE REMEDY IN EQUITY.
Pilot Investments Group v. Hofarth, 250 Neb. 475, 550 N.W.2d 27 (1996)

ARGUMENT

I. DEFERRAL TO THE NRD OR DISMISSAL UNDER THE DOCTRINE OF PRIMARY JURISDICTION IS INAPPROPRIATE.

In Central Nebraska Public Power and Irrigation District vs. The persons identified as registered well owners located in the Platte River watershed as listed in the Department of Natural Resources' database upstream of Central's Diversion Dam, which is on appeal to this Court, the Nebraska Department of Natural Resources (DNR), on July 1, 2004, dismissed Central's complaint requesting all unpermitted diversions (irrigation wells) above Central's diversion be ordered to cease and that Central's surface water appropriations be declared prior and superior to the unpermitted irrigation well diversions. Amici Pathfinder, et al., acknowledge that it may well be an appropriate exercise of the doctrine of primary jurisdiction for this Court to defer cases like this to the DNR with specific directions to identify and administer hydrologically connected wells in the river basin in accordance with the surface water appropriation priority system which has been in effect in this state for well over a century. Our comments regarding the doctrine of primary jurisdiction hereafter are addressed to the Appellees' arguments that this matter should be handled by the NRD pursuant to the provisions of the GWMPA, as amended by LB 962.

The principles of primary jurisdiction set forth in In Re Interest of Battiato, 259 Neb. 829, 613 N. W.2d 12 (2000) are cited in both parties' briefs and will not be repeated herein.

We submit that deferring any part of this action to the NRD pursuant to the GWMPA, as amended by LB 962, is inappropriate, would delay a full and final adjudication of the issues in this case and perpetuate the confusion as to the lights and obligations of ground and surface water users. Further delay would also encourage continued depletions of our water resources through ground water pumping without regard to the consequences on surface water appropriators or other water users. The doctrine of primary jurisdiction is inappropriate here for the following reasons:

1. The critical issues in this case identified by the parties, Amici Curiae and this Court involve questions of law, not questions of fact. The Court in Battiato ruled that the doctrine does not apply "where a pure question of law is at issue." (259 Neb. at 837)

2. The "requisite uniformity of determination" will be absent by deferring any issue in this case to the North Platte NRD, one of 23 separately governed NRDs in this state. The NRD as an "administrative agency" is in no way comparable to the Interstate Commerce Commission or other federal or state agencies having responsibilities and the expertise to regulate and administer technical matters uniformly on a nationwide or statewide level.

3. While the DNR is an agency that should have the know ledge and expertise to insure the "requisite uniformity of determination," that state agency is a party in a closely related action on appeal to this Court (Case No. S-04-000639, Spear T Ranch. Inc.. vs. Nebraska Department of Natural Resources (appeal from District Court of Morrill County)). The DNR, of course, can be involved with the NRD in management under the GWMPA. In Battiato, the Court acknowledged authority holding "that the primary jurisdiction doctrine does not apply where the agency to which the case would be referred is a party to the action before the courr but did not pass on the question, having determined that the doctrine of primary jurisdiction did not apply in that case on other grounds. (259 Neb. at 839)

4. There is nothing in the record or in the statutes creating the NRDs to establish that an NRD's knowledge and expertise in the issues raised in this action is any greater than that of the courts.

5. It is also speculative to assume that management under the GWMPA/LB 962 will ever be possible because it is dependent upon funding from a number of contingent sources which, of course, is in no way guaranteed. (§§ 46-752 and 753)

6. Professor Richard J. Pierce, author of the Administrative Law Treatise covering primary jurisdiction, states: "No court would refer a pure issue of constitutional law to an agency for initial resolution" (Richard J. Pierce, Administrative Law Treatise, Volume II, page 929). As noted in the brief of Amici Curiae Pathfinder, et al. (pages 17-20), numerous, serious constitutional issues are raised, primarily by the strained construction of the GWMPA and LB 962 urged upon this Court by the Appellees.

7. Professor Pierce also cites United States v. Philadelphia National Bank, 374 U.S. 321, 353 (1963), where the Supreme Court observed that primary jurisdiction "requires judicial abstention in cases where protection of the integrity of a regulatory scheme dictates preliminary resort to the agency" (Administrative Law Treatise, at page 919). In this case, the "regulatory scheme" has allowed a natural stream to be drained by unregulated pumping which has only been recently limited but only then in order to allocate the remaining ground water among ground water users with no pretense of attempting to restore water to Pumpkin Creek and its surface water appropriators. Such a "scheme" lacks real integrity.

8. Professor Pierce also discusses a 6th Circuit case (United States v. Haun, 124 F.3d 745, 6th Circuit, 1997) which ruled that a district court should not have referred a dispute concerning alleged violations of the Packers and Stockyards Act to the Department of Agriculture since the Department of Agriculture did not have the statutory authority to impose a civil penalty. The NRD lacks any authority to award monetary damages or to impose "civil penalties." Nebraska courts clearly have the autholity to award compensation. In Goeke v. National Farms, Inc., 245 Neb. 262, 512 N. W.2d 6215 (1994), the Court ruled:

When an equity court has properly acquired jurisdiction in a suit for equitable relief, it will make a complete adjudication of all matters properly presented and involved in the case and ordinarily will grant such relief, legal or equitable, as may be required and thus avoid unnecessary litigation. (Citations omitted). Therefore, the district court could properly award damages for injuries that the plaintiffs proved were proximately caused. . . Just because an action is equitable in nature, no different standards need be applied in adjudicating damages incidental to the main equitable relief sought. (245 Neb. at 270)

9. As also observed in Goeke, supra, an equity court’s ability to adjudicate all matters properly presented and involved allows the litigants to "avoid unnecessary litigation." Neither the NRD nor the DNR under the GWMPA have this comprehensive authority, ability or competence. The extra time and expense involved in proceedings before the NRD, the DNR, appeals from orders of both agencies and the proceedings in the appellate courts could well expected to be excessive and prohibitive.

10. Professor Pierce also discusses the "significant disadvantage" to invocation of the primary jurisdiction doctrine and that is delay (Administrative Law Treatise, pages 960-963). That will inevitably be the result of deferral of each stream flow depletion case to local political subdivisions administering the complex maze embodied in the GWMPA as modified by LB 962. Pierce observed that the federal circuit courts "almost invariably resolve primary jurisdiction disputes through application of a balancing test in which they weigh the potential delay resulting from invocation of primary jurisdiction against the advantages of applying the doctrine" (Administrative Law Treatise, page 960). In the present case, the delay could well run into several years while the "advantages" of applying the doctrine, if any, are unknown or speculative at best, Professor Pierce notes: "Courts are becoming understandably reluctant to invoke primary jurisdiction when this otherwise valuable step is likely to require the courts to delay resolution of disputes before them by a decade or more." Professor Pierce devotes an entire chapter in Administrative Law Treatise to "the problem of delay" (Administrative Law Treatise, pages 829-861) noting, "All individuals and institutions involved in the administrative law system agree on two propositions: (1) agency decision making often takes a long time, and (2) decision making delay imposes enormous costs on individuals, society, and the legal system," citing studies documenting patterns of decision making delay as long as ten years or more. Section 46-656.66 (now § 46-750) gives any person aggrieved the right to appeal each of the numerous orders entered during the lengthy GWMPA process, We submit that due to the complexity of the GWMPA as amended by LB 962, a 10-year delay in deferring these disputes to an NRD is well within the realm of possibility or even in probability.

There is no assurance that any helpful or meaningful determinations would be made by either the NRD or the DNR through the GWMPA/LB 962 process. The only virtual certainty is further delay in the resolution of the vitally important issues raised in this case. The Court should decline the Appellees' invitation to defer this action to a local political subdivision operating within the structure of the GWMPA, as modified by LB 962, which is intended to give local authorities the chance to manage our water resources to prevent the destructive effects of over-development, but is not designed and is ill-equipped to adjudicate and provide relief for surface water appropriators which have already lost their Source of supply.

II. THE ADOPTION OF LB 962 DOES NOTHING TO RELIEVE THE COURT OF ITS IMPERATIVE DUTY TO PROTECT ITS JURISDICTION TO ADJUDICATE THIS CASE.

LB 962 has no effect on the authority of this Court to review and determine all of the issues involved in this appeal. As discussed in Amici Curiae Pathfinder, et al.'s original brief, pages 8 and 9, it is "an imperative duty" of the Judicial Department of this state to protect both its equity and common law jurisdiction.

The only effect LB 962 has on this appeal is to give further support for this Court to treat hydrologically connected wells in the same manner as surface water appropriations. In this regard, Amici respectfully request that the Court consider a law review article to be published in the Nebraska Law Review by J. David Aiken, a knowledgeable and widely respected authority on water issues in this state, entitled "The Western Common Law of Tributary Ground Water: Implications for Nebraska." The draft is available, has been submitted to the Law Review but publication is not scheduled until November 2004. The author's review of the history of the development of ground water law in this state, especially as it relates to the evolving integration with surface water law, is important to understanding and resolving the issues in this case, including LB 962.

What LB 962 did not do, however, is purport to divest the district court of jurisdiction to hear this case as addressed in the original brief of Amici Curiae Pathfinder, et al., pages 14-17, in reference to the GWMPA. Likewise, neither could the Legislature divest this Court of jurisdiction to hear this case for those same reasons set forth in the original brief of Amici Curiae Pathfinder, et al., pages 17-20. In Stoneman v. United Nebraska Bank, 254 Neb. 477, 577N. W.2d 271 (1998), the Court ruled: "To the extent that a statute's remedy is incomplete, equity must intervene, regardless of whether the statute purports to abrogate the common law." (254 Neb. at 487)

The Spear T case presents and remains one of those direct conflicts which the Court recognized as being within its jurisdiction in Central Platte NRD v. Wyoming, discussed infra, page 13.

III. THE GWMPA/LB 962 DID NOT ABROGATE SURFACE WATER APPROPRIATORS' COMMON LAW REMEDIES - NEITHER DOES IT ABROGATE THE GROUND WATER PUMPERS' COMMON LAW LIMITATIONS AND LIABILITIES.

In Bamford v. Upper Republican Natural Resources District, 245 Neb. 299, 512 N. W. 2d 642 (1994), this Court, quoting Olson v. City of Wahoo, 124 Neb. 802,248 N. W. 304 (1933), and State ex rel. Douglas v. Sporhase, 208 Neb. 703, 305 N. W.2d 614 (1981) (reversed on other grounds, 458 U.S. 941 (1982:)), reiterated "Nebraska's common law of ground water":

"The. . . rule is that the owner of land is entitled to appropriate subterranean waters found under his land, but he cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land which he owns, especially if such use is injurious to others who have substantial rights to the waters, and if the natural underground supply is insufficient for all owners, each is entitled to a reasonable proportion of the whole. . . ." (emphasis added)

(245 Neb. at 313) The Appellees have ignored the significant controlling language in the Nebraska common law rule of groundwater in their Consolidated Supplemental Brief. This is illustrated by the statement on page 47 of the Appellees' Consolidated Supplemental Brief:

Under common law that has existed since at least 1933 when Olson was decided, the Appellees were entitled to the reasonable and beneficial use of the ground water underlying their land, limited only by the correlative rights doctrine. Consequently, a nuisance theory was unavailable prior to the adoption of the [GWMPA] prior to the LB 962 amendments, and it is unavailable now.

First, the right to appropriate ground water under our common law is also limited "if such use is injurious to others who have substantial rights to the waters." As presented in Amici Pathfinder, et al.'s original brief herein at page 10-12, there is no question that surface water appropriators have common law, constitutionally recognized vested water rights entitled to protection from a court of equity. These are clearly "substantial rights." The Appellees dwell upon the correlative rights portion of the Nebraska rule while ignoring the directive that the use cannot be "injurious to others." The argument that surface water appropriators possess no common law right protecting them from injury from ground water withdrawals is simply incorrect and the premise upon which it is based is an incomplete citation to the Nebraska common law rule. There should be no question that the draining of a natural stream which is the source of vested surface water appropriations is injurious to those surface water appropriators. This basic and essential proposition in Nebraska law should be judicially confirmed as a matter of law in this Court's opinion herein.

On pages 8 and 9 of their brief, the Appellees argue that it is critical that there are no allegations that they violated the NRD rules and regulations and make an unsupported allegation that none of them have violated the Pumpkin Creek rules and regulations. The Appellees go on to proclaim that their conduct has been "declared to be lawful" by the NRD. Again, while this is not properly in the record before the Court, we are confident it is not true that the NRD has declared the drying up of Pumpkin Creek to be lawful. If it has, then the absurdity of the NRD's and pumpers' position is even more apparent. If the pumpers can dry up a natural stream while in compliance with NRD rules and regulations, then obviously the "regulatory scheme" has failed and the holders of vested appropriative rights to irrigation water from that stream have been injured and unconstitutionally deprived of those rights.

In Popple v. Rose, 254 Neb. 1, 573 N. W.2d 765 (1998), this Court again made it clear that the rule providing that statutes which effect a change in the common law or take away a common law right should be strictly construed and a construction which restricts or removes a common law light should not be adopted unless the plain words of the act compel it also applied to legislation purporting to abrogate "common law liability" (Amici Pathfinder, et al.'s original brief, pages 15-16) The GWMPA, as amended by LB 962, nowhere relieves ground water pumpers of their duty not to injure others. There is nothing in the act or the legislative history to indicate that the Legislature intended the GWMPA or LB 962 to change the Nebraska common law to allow ground water users to pump with impunity regardless of injurious consequences to others.

Appellees also misconstrue the provisions of Restatement Second of Torts. As noted in Amici Pathfinder, et al.'s original brief on page 14, disputes between users of water in this state have been decided by district courts using, among other theories, Restatement of the Law, Second, Torts 2d, § 858, Liability for Use of Ground Water. The appellate Courts of Nebraska have adopted the law of nuisance as articulated in the Restatement (Second) of Torts (1979). Bargmann v. Soll Oil Co., 253 Neb. 1018, 574 N.W.2d 478 (1998); Hall v. Phillips, 231 Neb. 269, 436 N.W.2d 139 (1989). Private nuisance is simply an invasion of another's interest in the private use and enjoyment of his or her land. Nowhere is a requirement that the invasion be "unlawful." Reasonableness of use is a criteria of both the Restatement as well as Nebraska's common law of ground water cited in Bamford, .supra. The Appellees argue that they are in compliance with NRD rules and regulations, although that is not a matter of record. Accordingly they continue, their use therefore must be reasonable since it is not "unlawful." Further they announce on page 48 of their Consolidated Supplemental Brief, "[I]n the absence of unlawful conduct, there is no judicial remedy," understandably citing no authority for this peculiar proposition. They do not claim that their use does not injure surface water appropriators, ignoring an essential requirement of Nebraska's common law of ground water cited above. Reasonable use is also a key component of the Restatement (Second) of Torts which provides in § 858:

(1) A proprietor of land or his grantee who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water by another, unless

a) the withdrawal of ground water unreasonably causes harm to a proprietor of neighboring land through lowering the water table or reducing artesian pressure,
(b) the withdrawal of ground water exceeds the proprietor's reasonable share of the annual supply or total store of ground water, or
(c) the withdrawal of the ground water has a direct and substantial effect upon a water course or lake and unreasonably causes harm to a person entitled to the use of its water.

2) The determination of liability under clauses (a), (b) and (c) of Subsection (1) is governed by the principles stated in § § 850 to 857.

Section 850A defines "Reasonableness of the Use of Water":

The determination of the reasonableness of a use of water depends upon a consideration of the interests of the riparian proprietor making the use, of any riparian proprietor harmed by it and of society as a whole. Factors that affect the determination include the following:

(a) The purpose of the use,
(b) the suitability of the use to the watercourse or lake,
(c) the economic value of the use,
(d) the social value of the use,
(e) the extent and amount of the harm it causes,
(f) the practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other,
(g) the practicality of adjusting the quantity of water used by each proprietor,
(h) the protection of existing values of water uses, land, investments and enterprises, and
(i) the justice of requiring the user causing hmm to bear the loss.

There are several pages of comments discussing the determination of reasonable or unreasonable use and clearly the Restatement provisions and the comments thereto do not simply focus on whether the use is allowed by a local governing board's rules and regulations or whether it is "lawful" or "unlawful" The Appellees acknowledge the applicability of the Restatement on pages 44 and 45 of their Consolidated Supplemental Brief and cite an example in the comments. Whether that example is on point here or not depends, of course, upon facts which are not yet of record. The court, not the NRD is the only appropriate forum to apply the Restatement principles to the facts of this case.

In Central Platte NRD v. Wvoming, 245 Neb. 439,513 N. W.2d 847 (1994), the Court stated: "We note that the relative rights of those using ground water and those using surface water are often unclear. The Courts can begin to give outlines and shape to these rights, but only in a case-by-case, piecemeal fashion, and only when those rights are brought into direct conflict." (245 Neb. at 451) The Central Platte NRD Court noted, however, that the anticipated conflict addressed in that case was best resolved by the policy-based decision making process that is the province of our Legislature. The Court, however, made it clear that it would establish rules to deal with direct conflicts between surface and ground water users in the absence of governing statutes. That is exactly the situation here. The Court here could apply the long-recognized doctrine of prior appropriation to ground water withdrawals which accomplish a subsurface diversion of stream flows, or other principles of equity, common law or nuisance discussed in both briefs of Amici Pathfinder, et a].

Another puzzling statement is contained on page 17 of the Apellees' Consolidated Supplemental Brief: "The Legislature also refused to allow a surface water user to file suit against a ground water user for money damages because stream flow has decreased" in reference to LB 962. Nowhere in the GWMPA or LB 962 will one find any such language.

The Appellees invoke the doctrine of separation of powers in support of their position that the Courts of this state are powerless to protect parties with rights to the use of stream flow from ground water pumping activity which dries up the stream. That argument lacks merit and must fail as discussed in both briefs of Amici Pathfinder, et al. As noted in Amici Pathfinder, et al.'s original brief on page 19, the doctrine of separation of powers does, however, forbid the legislature from limiting or divesting this Court's constitutional equitable jurisdiction. The construction of the GWMPA as modified by LB 962 urged by the pumpers herein would render the act unconstitutional for several reasons as listed in the initial brief of Amici Pathfinder, et al. (pages 17-20).

IV. THE GWMPA AMENDED BY LB 962 DOES NOT PROVIDE AN ADEQUATE REMEDY AT LAW.

In Pilot Investments Group v. Hofarth, 250 Neb. 475, 550N. W.2d 27 (1996), the Court cited the applicable definition: "An adequate remedy at law means a remedy which is plain and complete and as practical and efficient to the ends of justice and its prompt administration as the remedy in equity" (250 Neb. at 483). Clearly, the GWMPA, as modified by LB 962, falls far short of that standard. It is neither complete nor prompt. The judicial equitable remedy is the only remedy comprehensive enough to fairly address and resolve the issues raised in this litigation.

The rule stated in Stoneman v. United Nebraska Bank, supra, also applies: "To the extent that a statute's remedy is incomplete, equity must intervene, regardless of whether the statute purports to abrogate the common law." (254 Neb. at 487)

The Pumpkin Creek basin needed meaningful management before hundreds of wells were installed in the aquifer supplying the stream's flows. The complaint alleges the stream has now been drained by the Appellees. NRD management will not restore stream flows for use of surface water appropriators, or award them money damages, including damages for the loss of the ability to divert those flows. The GWMPA and LB 962 will hopefully be instrumental in allowing the DNR and local NRDs to prevent what has happened on Pumpkin Creek, in other areas and for other surface water appropriators and users which have not yet been irreparably damaged by the unregulated and unsustainable development of ground water. The GWMPA, amended by LB 962, is neither an adequate, complete nor meaningful remedy for a surface water appropriator in Spear T's present position.

CONCLUSION

Deferral to an NRD under the doctrine of primary jurisdiction is inappropriate. The GWMPA/LB 962 does not divest the Court of its duty to protect its equitable jurisdiction to adjudicate this case. Neither does the act, as amended, abrogate surface water appropriators' common law remedies or ground water pumpers' common law liabilities. The GWMPA/LB 962 is an incomplete: and inadequate remedy at law.

Respectfully submitted,
PATHFINDER IRRlGATION DISTRICT, GERING-FORT
LARAMIE IRRIGATION DISTRICT, ENTERPRISE IRRIGATION DISTRICT, WINTERS CREEK CANAL COMPANY, NINE MILE IRRIGATION DISTRICT, ROGER AND VICKI UTHMANN, AND FARMERS IRRIGIONTION DISTRICT, AMICI CURIAE
By:
Steven. Smith, NSBA #13912
Pahlke, Smith, Snyder, Petitt & Eubanks
A General Partnership
1904 First Avenue, Post Office Box 1204
Scottsbluff, Nebraska 69363-1204
Telephone: (308) 635-3161

CERTIFICATE OF SERVICE

The undersigned hereby certifies that two copies of the foregoing Additional Brief of Amici Pathfinder Irrigation District, Gering-Fort Laramie Irrigation District, Enterprise Irrigation District, Winters Creek Canal Company, Nine Mile Irrigation District, Roger and Vicki Uthmann and Farmers Irrigation District were mailed by United States First Class Mail, postage prepaid, on this 27th day of July, 2004, to the following: