|
TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF AUTHORITIES
PROPOSIllONS OF LAW
ARGUMENT
TABLE OF AUTHORITIES
Brown v. City Of Omaha, 183
Neb. 430, 160 N. W. 2d 805 (1968)
City of Lincoln v. Nebraska P.P. Dist., 191
Neb. 556 at 561, (1974)
In reInterest of Battiato, 259 Neb. 829, 837
(2000)
Karpisek v. Cather & Sons Constr., Inc.,
174 Neb. 234 at 240, 117 N.W.2d 322 (1962)
Sarraillon v. Stevenson, 153 Neb. 182 at 189,
43 N. W. 2d 509 (1950)
State v. Tautges, Rerat & Welch, 146 Neb.
439, 20 N. W. 2d 232
Texas & Pacific Railway Co. v. Abilene Cotton
Oil Co., 204 U.S. 426 (1907)
Wagoner v. Central Platte Nat Resources Dist.,
247 Neb. 233, 526 N. W.2d 422 (1995)
Statutes
Neb. Rev. Stat. § 46-702
Neb. Rev. Stat. § 46- 703
PROPOSITIONS
OF LAW
Appellant relies on the propositions
of law set forth in its Initial Brief and Initial Additional
brief together with the following:
I. A NATURAL RESOURCES DISTRICT, AS
A POLITICAL SUBDIVISION, HAS ONLY THAT POWER DELEGATED
TO IT BY THE LEGISLATURE, AND A GRANT OF POWER TO A
POLITICAL SUBDIVISION IS STRICTLY CONSTRUED. Wagoner
v. Central Platte Nat Resources Dist., 247 Neb.
233, 526N.W.2d422 (1995).
II. A NATURAL RESOURCES DISTRICT POSSESSES
AND CAN EXERCISE THE FOLLOWING POWERS AND NO OTHERS:
FIRST, THOSE GRANTED IN EXPRESS WORDS; SECOND, THOSE
NECESSARILY OR FAIRLY IMPLIED IN OR INCIDENT TO THE
POWERS EXPRESSLY GRANTED; AND THIRD, THOSE ESSENTIAL
TO THE DECLARED OBJECTS AND PURPOSES OF THE DISTRICT
--NOT SIMPLY CONVENIENT, BUT INDISPENSABLE. Wagoner
v. Central Platte Nat Resources Dist., 247, Neb.
233, 526 N. W.2d 422 (1995).
III. WHERE ONE'S BUSINESS OPERATION
AS CONDUCTED MATERIALLY AND INJURIOUSLY AFFECTS THE
COMFORT AND ENJOYMENT AND PROPERTY RIGHTS OF THOSE IN
THE VICINITY IT BECOMES A NUISANCE AND MAY BE ENJOINED.
Karpisek v. Cather & Sons Constr., Inc.,
174 Neb. 234, 117 N.W.2d 322 (1962).
IV. A LEGITIMATE INDUSTRY IS GENERALLY
NOT A NUISANCE, BUT IT MAY BECOME A NUISANCE IN FACT
BY REASON OF THE MANNER OF ITS OPERATION AND CONDITIONS
IMPLICIT IN AND THAT UNAVOIDABLY RESULT FROM ITS OPERATION,
ESPECIALLY IN A RESIDENTIAL OR OTHER CLOSELY OCCUPIED
AREA. Sarraillon v. Stevenson, 153 Neb. 182,
43 N. W. 2d 509 (1950).
ARGUMENT
Introduction
As noted before, the Court requested
additional briefs and arguments from the parties addressing
four issues:
(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 Nebraska Ground Water Management and
Protection Act ("the GWMPA) or LB 962 have abrogated
any common law remedies that the appellant might have,
or provide an adequate remedy at law.
Appellant Spear T Ranch, Inc. ("Spear
T") filed its "Initial Additional Brief' following
which Appellees filed their "Consolidated Supplemental
Brief'. Generally Appellees contend that the district
court should defer to the North Platte Natural Resources
District ("NPNRD") under the doctrine of primary
jurisdiction, that Appellant has no common law remedy,
and that any remedy Appellant seeks is found under the
GWMPA. Following is Appellant's rebuttal.
II. The parties agree the doctrine
of primary jurisdiction was developed to bring uniformity
in decisions concerning technical, factual issues and
administrative expertise in areas unfamiliar to the
courts.
Both parties presented historical background
for primary jurisdiction and it is apparent that this
judicially created doctrine is meant to serve as an
aid to the courts. It is entirely within the discretion
of a court and is used primarily when the issue before
the court is highly technical and factual in nature,
and requires consistency and uniformity of decisions.
A second reason for invoking primary jurisdiction grew
from the need for specific expertise and specialized
knowledge handling those highly technical, factual issues
which tended to produce voluminous records. It is no
surprise that the cases in which this doctrine was developed
involved rates and tariffs of regulated industries.
III. The GWMPA as modified by
LB 962 has no bearing on whether primary jurisdiction
is applicable. Rather, the doctrine requires a case
by case determination by the court. In the case before
the Court, the traditional reasons for invoking primary
jurisdiction are absent.
Appellant and Appellees seem to agree
on the historical development of this doctrine, yet
quickly part ways responding to the second question
of the Court, that is primary jurisdiction in light
of the GWMPA and LB 962. Spear T submits that the GWMPA
modified by LB 962, or any legislative act for that
matter, cannot in and of itself determine whether primary
jurisdiction should be applied because that doctrine
is a creation of the courts and within the court's sole
discretion whether it is applied. If the legislation
required deferral to an agency, that would constitute
exclusive jurisdiction and the doctrine of primary jurisdiction
would not apply. As stated previously, neither the GWMPA
nor LB 962 provides natural resources districts ("NRDs")
with exclusive jurisdiction to determine conflicts between
surface water appropriators and ground water irrigators.
The decision whether to defer decision making to an
agency is entirely within the discretion of the court
based on the factors outlined above.
Primary jurisdiction requires a case
by case analysis and neither of the fundamental reasons
for invoking primary jurisdiction is present in this
case. While uniformity of decisions is important in
defining the relative rights of water users, the decision
of one NRD out of twenty- three will not bring that
uniformity. Furthermore, specific expertise is unnecessary
to resolve this conflict.
Appellees, on the other hand, do not
appear to respond to the question of the Court. Appellees
chose to reargue their case for exclusive jurisdiction.
They focused on the GWMPA, legislative policy, and separation
of powers. Apparently Appellees do not understand primary
jurisdiction despite briefing the history of the doctrine.
Primary jurisdiction does not spring from legislation.
It is a tool of the courts. Application of the doctrine
is not made by statute. The existence of the Nebraska
Ground Water Management and Protection Act does not
automatically result in referral of any water issue
to the NRDs. Only if the district court desires determination
of a technical, factual issue which it feels unqualified
to address or is concerned with uniformity in decision
making, would it seek "agency" input. The
issues to be determined at the trial court do not require
a special expertise. But even if the trial court thought
so, which "agency" would the district court
turn to? The Appellee ground water irrigators would
choose the NRD, their alter ego. But LB 962 substantially
increases the role of the Department of Natural Resources
("DNR") in the management of hydrologically
connected water. This should be a red flag to the Court
in its consideration of the issue of primary jurisdiction.
How can there be two "agencies" deciding these
issues?
Appellees have made a great deal of
NRDs being considered "agencies". Law should
be grounded in common sense, and while from a procedural
standpoint administrative rules may apply to NRDs, as
a practical matter NRDs are nothing like State or Federal
agencies upon which the concept of primary jurisdiction
was built. NRDs are political subdivisions. They are
accountable only to voters, not to the executive branch
of the government. The board members are elected by
the public and without technical qualifications. There
is no uniformity in "decisions" among the
twenty-three NRDs and there is no grant to NRDs of judicial
functions.
Wagoner v. Central Platte Nat Resources
Dist., 247 Neb. 233, 526 N. W.2d 422 (1995), cited
by Appellees in their Consolidated Supplemental Brief,
sets out the stringent requirements placed upon an NRD.
A natural resources district, as a
political subdivision, has only that power delegated
to it by the Legislature, and a grant of power to
a political subdivision is strictly construed. In
Re Applications A-15145, A-15146, A-15147, and A-15148,
230 Neb. 580,433 N.W.2d 161 (1988) (power to acquire
and dispose of water rights did not grant power to
a natural resources district to transfer from one
entity to another an application pending before it
for water diversion). A natural resources district
possesses and can exercise the following powers and
no others: first, those granted in express words;
second, those necessarily or fairly implied in or
incident to the powers expressly granted; and third,
those essential to the declared objects and purposes
of the district -- not simply convenient, but indispensable.
Wagoner at 247 Neb. 241,242.
In the case at hand, none of these three
tests are met. There are no express words in the GWMPA
or LB 962, providing NRDs with authority to determine
conflicts between surface water appropriators and ground
water irrigators.
Neither are such quasi-judicial powers
"necessarily or fairly implied in or incident"
to the authority granted in the GWMPA. The GWMPA provides
procedures for managing basins as a whole, on a forward
looking basis. One goal appears to be to exercise this
management in a manner so as to prevent problems from
developing between surface water appropriators and ground
water irrigators. But there is no indication the GWMPA
was intended to provide a forum for a private party
who is presently injured. Rulemaking, contrary to Appellees'
assertions, is a legislative function, not a judicial
function, and is not a substitute for a party's right
to protect its vested property right. (Appellees' Consolidated
Supplemental Brief at 31, 35.) Appellees contend that
the separation of powers prevents the Court from granting
relief to Appellant, yet it is perfectly acceptable
for the NPNRD, who engages in rulemaking, to also make
judicial decisions (". . . the NPNRD is the only
entity with the power to grant the relief Appellant
seeks"). Appellees' Consolidated Supplemental Brief
at 37.
Finally, determination of such conflicts
cannot be said to be indispensable to the declared objects
and purposes of the NRD. While it might be convenient,
particularly for an NRD board laden with ground water
irrigators, to decide such conflicts, it is not essential
for managing a basin. In fact, decisions in such cases
by district courts would help provide guidance to the
NRDs as they, hopefully, make long term plans for basins.
One need only examine the cases cited
by Appellees to notice that in each instance in which
primary jurisdiction was applied, the "agency"
involved was a traditional administrative agency of
the State or Federal government. Or stated differently,
not one court referred determination of an issue to
a political subdivision. It is difficult to imagine
a court referring a conflict between private parties
to a municipality or a county for determination by the
City Councilor the County Commissioners.
Regardless of the shortcomings of NRDs
to determine conflicts between surface water appropriators
and ground water irrigators, "the nature of the
controverted question and the nature of the inquiry
necessary for its solution are the determining factors
in regard to application of the doctrine of primary
jurisdiction." In re Interest of Battiato,
259 Neb. 829, 837 (2000). In the case before the Court,
the issues to be determined by the district court do
not require special expertise. A review of Appellant's
Complaint suggests the key issues are:
-Was Spear T able to use its surface
appropriation?
-Did the Appellees' ground water irrigation wells
pull water from Pumpkin Creek?
-Does Spear T have a superior right to that water?
-What are Spear T's damages?
-Are Appellees' actions causing irreparable harm to
Spear T?
-How are those damages allocated among the Appellees?
While some of these issues are, indeed,
questions of fact, they are certainly within the competency
of a district judge to determine. They are a far cry
from ‘what is the proper tariff to charge on cotton
seed being shipped on a railroad'. See Texas &
Pacific Railway Co. v. Abilene Cotton Oil Co.,
204 U.S. 426 (1907).
There is another dimension to this issue,
apparently overlooked by the Appellees. If this case
is referred to the NPNRD, that NRD will have to decide
several questions of law, including: (1) whether a surface
water appropriator has a cause of action against a ground
water irrigator when the actions of that ground water
irrigator deny the surface water appropriator use of
its appropriation; (2) whether the surface water appropriator
is suffering irreparable harm; and (3) what constitutes
indispensable parties in a conflict between a surface
water appropriator and a ground water irrigator.
Obviously the issues now before this
Court are questions of law. Should they have been referred
to the NPNRD for resolution? That would be contrary
to the doctrine of primary jurisdiction of which has
been said, "[t]he 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." Interest of
Battiato, 259 Neb. 829, 838 (2000).
Uniformity of decisions in a regulated
industry is the other usual reason for invoking primary
jurisdiction. As previously stated, there is minimal
chance that twenty-three NRDs will produce a uniform
decision regarding the rights of a surface water appropriator
to hydrologically connected water vis a vis a ground
water irrigator. On the other hand, as the Appellees
point out, a district court decision will only be controlling
for the case before it. However, the decision will be
made by a trained legal expert and, as with any significant
decision, no doubt be directly appealed at which time
this Court would provide a decision bringing uniformity
across the State. The truth is, decision by this Court
of these issues will permanently resolve the questions
of law and leave fundamental questions of fact for the
district court to decide: whether the surface water
appropriator is able to use its appropriation; whether
the water is hydrologically connected; whether the ground
water irrigator is using hydrologically connected water;
and what are the damages. Depending on this Court's
decision, the case becomes simply one of proving liability
and damages.
The Court asked the parties to evaluate
primary jurisdiction in light of the GWMPA and LB 962.
Spear T submits that the GWMPA and LB 962 should not
influence the determination of whether to refer this
conflict to the NRDs under primary jurisdiction. Under
the traditional tests for primary jurisdiction, a district
court should not refer decision making to the NRD. The
essence of the doctrine is that it is a tool of the
courts, not a statutory creation, and it is to be used
when special expertise is necessary and continued uniformity
is sought in a regulated industry. The nature of the
questions in this case do not require application of
primary jurisdiction on either ground.
IV. Appellees did not answer
the question of whether LB 962 affected this appeal.
The Court also asked the parties how
the adoption of LB 962 affected this appeal. The Appellees
did not respond to this question either. They emphasized
the size of the committee which "drafted"
the GWMPA and the amount of work which went into it.
Evidently there is a correlation between the importance
and effectiveness of legislation and the number of people
and pages involved. They opined about legislative policy
and separation of powers. However, as pointed out in
Spear T's Initial Additional Brief, LB 962 has no affect
on this appeal. It does not define priority of use of
hydrologically connected water as between surface water
appropriators and ground water irrigators when there
is insufficient water to supply the surface water appropriation.
It does not supply a conflict resolution process between
these water users. It does not provide a process for
filing a claim for damages caused by a private party.
It simply does not help resolve the issues before the
Court on this appeal.
V. The parties agree that the
GWMPA amended by LB 962 does not impact common law remedies,
but for very different reasons.
The last issue which the Court sought
input was the impact of the GWMPA with LB 962 on the
common law remedies of Spear T. Interestingly, the parties
agreed that it did not impact the common law remedies,
but for different reasons. Spear T explained how the
facts it plead supported each cause of action, and how
the GWMPA did not abrogate either cause of action. The
Appellees, on the other hand, simply state there are
no common law remedies. This position is necessary,
contrary to their initial brief, because continuing
to argue that the GWMPA has abrogated all of Spear T's
rights would expose the GWMPA to a claim that it is
unconstitutional because a vested right cannot be taken
without due process.
Spear T questions the logic that no
common law remedy exists. In order to fully evaluate
whether a remedy exists, one must first consider the
underlying cause of action. There does exist a common
law cause of action for both conversion and nuisance.
Nebraska rules of pleading allow Spear T to advance
both theories of tort upon the facts plead. While Nebraska
commentators have favored a nuisance action under these
circumstances, Spear T is not ready to abandon its claim
of conversion. Wrongful possession of property that
belongs to another constitutes conversion. That does
not change simply because the property right in question
is the right to use of some thing, for what value is
property if you cannot use it? If the State or an entity
with the power of eminent domain assumed use of some
property, would not that constitute a taking by condemnation?
While decisions must be made consistent with established
common law, we are not required to check our common
sense at the door of the court house. The truth is that
the issue of priority to hydrologically connected water
which is before the court is not only a question of
first impression in Nebraska, but apparently in the
western United States.
One will not find guidance in the States
north, south, or west of Nebraska because these States
long ago integrated management of surface water and
ground water, establishing priorities between the two
thus avoiding the plight of Spear T. Rainfall in the
States east of Nebraska make such conflicts unlikely.
That being the case, resolution lies in the examination
of the conflicting rights and application of wisdom
and common sense. Very few cases will be relevant to
such a case of first impression, and the view of commentators,
while helpful, should be scrutinized and not accepted
at face value.
Surface water appropriators have a vested
property right in the use of an adjudicated amount of
water. In the event there is insufficient water for
all surface water appropriators on a stream, the rule
"first in time is first in right" is applied.
The oldest appropriation in time is completely satisfied
before the next oldest right is fulfilled, and so on
until there is no water left to use. This is the surface
water management philosophy implemented in the late
1800' s in Nebraska which continues in effect today.
Ground water users have the right to
use the water under the land they own if put to beneficial
use on that land and subject to certain priorities of
use, i.e. domestic, stock, irrigation, etc. They may
use this water so long as it does not interfere with
other ground water users. If there is insufficient water,
the correlative use doctrine is applied requiring landowners
to share the water. Appellees incorrectly include surface
water appropriators when they define who is subject
to the correlative rights doctrine. (Appellees' Consolidated
Supplemental Brief at 15,22, 29, 44.) The statute states,
in part, "[e]very landowner shall be entitled to
a reasonable and beneficial use of the ground water
underlying his or her land subject to the provisions
of Chapter 46, article 6, and the Nebraska Ground Water
Management and Protection Act and the correlative rights
of other landowners when the ground water supply is
insufficient for all users." Neb. Rev. Stat. §
46-702. The word "landowners" must refer to
ground water users because earlier in the sentence the
term "landowner" is used to define ground
water rights. Correlative rights exist between ground
water users, not between ground water users and surface
water appropriators.
It is not so difficult then to define
the rights of surface water appropriators and ground
water irrigators when the two users come into conflict
over hydrologically connected water. We have already
established that ground water-users can only use water
from under their land to the extent it does not interfere
with adjoining landowner use of that ground water. A
limitation has therefore been established for ground
water users. More importantly, that limitation applies,
according to § 46-702 when the ground water supply
is insufficient "for all users." Neb. Rev.
Stat. § 46-703 recognizes that ground water can
be hydrologically connected water. Therefore, when that
ground water use interferes with a surface water appropriation,
there is a limitation on the ground water user. However,
it is not correlative limitation upon the surface water
appropriator. The two do not proportionately reduce
use; not only because of the explicit words of §
46-702, but also because their rights are of different
status, and, practically, a surface water user cannot
compete with an irrigation pump.
The difference in the status or rank
of the rights of a ground water irrigator and a surface
water appropriator is similar to the relative rights
as between the owner of a surface estate and the owner
of a severed mineral estate. The owner of the surface
has the right to use the surface subject to the owner
of the mineral estate using the surface to access his
or her mineral estate. Another relevant analogy would
be use of an easement for access when land is subdivided.
The servient estate containing the easement cannot deny
or take the "use" of the property constituting
the access without liability to the owner of the dominant
estate.
Completing the analogy, the injured
mineral or easement owner denied access, would not go
to the County Commissioners, a political subdivision,
to enforce its rights and obtain a remedy. It would
go to the district court.
Common law nuisance has also been established
by Spear T. "Where one's business operation as
conducted materially and injuriously affects the comfort
and enjoyment and property rights of those in the vicinity
it becomes a nuisance and may be enjoined." Karpisek
v. ; Cather & Sons Constr., Inc., 174 Neb.
234 at 240, 117 N.W.2d 322 (1962). Furthermore, "[a]
legitimate industry is generally not a nuisance, but
it may become a nuisance in fact by reason of the manner
of its operation and conditions implicit in and that
unavoidably result from its operation, especially in
a residential or other closely occupied area."
Sarraillon v. Stevenson, 153 Neb. 182 at 189,43
N. W. 2d 509 (1950).
The Sarraillon case specifically
rebuts Appellees' contention that there is no basis
for a nuisance action because they have done nothing
wrong and their actions are reasonable per se because
they are complying with the GWMPA. According to Sarraillon,
reasonableness is not defined by the action of the offending
party but more so by its impact on others. Certainly
the actions of a party that result in denying another
party all of its water for irrigation and all
of its water for livestock is unreasonable on its face.
Furthermore, Professor Harnsberger applied his definition
of reasonableness in 1984 prior to the current serious
depletions of surface water and he used that term as
it applied under the modified American rule between
ground water users when water is insufficient
for all.
We have then established the common
law basis for Spear T's cause of action, its common
law right to hydrologically connected water. This is
not a new theory of water management, it is the capstone
to an evolving structure. The building blocks are already
in place. Surface water appropriations are obtained
by adjudication, and governed by "first in time,
first in right". Priority to ground water, between
ground water irrigators, is codified in the GWMPA.
All that is necessary is the "missing link"-
the pronouncement that priority of a ground water user
to hydrologically connected water is subservient to
surface water appropriations. This is not a sea change
in Nebraska, it is built upon existing law with the
last piece put in place.
It is important to understand that this
is not some new philosophy which Spear T is trying to
force Nebraska to adopt for its personal gain. It is
the completion of the evolution of Nebraska's water
law which, to date, has simply not been articulated.
The "rights" of ground water irrigators vis
a vis other ground water irrigators are clearly established.
The rights of surface water appropriators vis a vis
other appropriators are firmly grounded. Neither of
these bodies of law change. Surface water has always
been the dominant estate but need for that declaration
was unnecessary until the development of powerful irrigation
pumps resulted in a substantial increase of unregulated
irrigation wells.
The Appellees have argued at length
that this is the Legislature's domain, that the Legislature
has spoken, and that separation of powers dictates the
NRD handle this conflict. The truth is that the Legislature
has not spoken about the common law rights of surface
water appropriators. They have had at least two opportunities
to address water management in Nebraska. In 1996 the
Nebraska Ground Water Management and Protection Act
was implemented. Based on its shortcomings, LB 962 was
enacted, effective July 16, 2004. Neither of these pieces
of legislation provided a methodology for addressing
individual disputes between surface water appropriators
and ground water irrigators. Neither did they establish
a priority to hydrologically connected water as between
the two types of users even though this case had already
been filed. In the meantime this Court has waited patiently
for the Legislature to address these issues with its
"broad strokes and bold colors". It should
be apparent that the Legislature, does not want to paint
this picture. The Court, as a matter of public policy,
must address this issue and is authorized to do so.
"Public policy in matters within
the legislative domain is for the Legislature to determine."
City of Lincoln v. Nebraska P.P. Dist., 191
Neb. 556 at 561, (1974). But the issue at hand has not
been addressed by the Legislature, and the common law
still stands. This Court said:
In State v. Tautges, Rerat &
Welch, 146 Neb. 439, 20 N. W. 2d 232, this court
held: "The courts have power to modify the common
law, adopting such of its principles as are applicable
and rejecting such others as are in applicable."
This court cited with approval the reasons of the
soundness of that rule: "The common law by its
own principles adapted itself to varying conditions
and modified its own rules so as to serve the ends
of justice as prompted by a course of reasoning which
was guided by these generally accepted truths. One
of its oldest maxims was that where the reason of
a rule ceased, the rule also ceased, and it logically
followed that when it occurred to the courts that
a particular rule had never been founded upon reason,
and that no reason existed in support thereof, that
rule likewise ceased, and perhaps another sprang up
in its place which was based upon reason and justice
as then conceived. No rule of the common law could
survive the reason on which it was founded. It needed
no statute to change it but abrogated itself"
Brown v. City Of Omaha, 183 Neb. 430 at 433,
160N. W. 2d 805 (1968).
Common law established surface water
appropriations as vested property rights. The "modified
American rule" of ground water developed by common
law. That rule has been codified but the Legislature
did not address the rights of ground water irrigators
vis a vis surface water appropriators in regard to hydrologically
connected water. This issue needs to be addressed now.
The reasoning of Brown applies "to serve
the ends of justice as prompted by a course of reasoning
... guided by these generally accepted truths."
Spear T has set out the "generally accepted truths"
above, concerning the limitations on ground water use
and the vested property rights of surface water appropriators.
In regard to governmental immunity,
the Court in Brown said,
Both the Legislature and this court
have power to act to change the doctrine and it may
well be that the Legislature will have the ultimate
word. This would seem to be a poor reason to avoid
the court's obligation to modify the common law to
serve the requirements of justice in a modem society.
We ought not to thrust upon the Legislature the sole
responsibility for injustice on the ground that, "Thus
it was said in the reign of Henry IV," nor even
on the ground that any change would constitute the
traditionally condemned heresy of judicial legislation.
Id at 434.
This same passage could be said to apply
to determination of the priority of a surface water
appropriator to hydrologically connected water. The
Legislature has failed to address it. Uncertainty reigns.
Surface water appropriators cannot compete with powerful
irrigation pumps. Will the Court truly stand by and
watch this injustice continue?
Confirmation of the priority of the
surface water appropriator clarifies the cause of action
from which the common law remedy flows. Whether it be
conversion or nuisance, either is justified. The common
law remedy is damages or injunction or both. These remedies
have always been available for these torts, and neither
has been abrogated by the GWMPA nor LB 962. There is
no specific language in the GWMPA as modified by LB
962 which limits a surface water appropriator's pursuit
of redress to filing an individual claim with the NRD
(if that is even possible and we do not think it is),
and consequently, there is no limitation on the common
law remedies available for the surface water appropriator.
Equally important, neither the GWMPA
nor LB 962, is contrary to the integration of priority
to hydrologically connected water as between surface
water appropriators and ground water irrigators. The
GWMPA started out as a management philosophy for ground
water users with a slight acknowledgment that hydrologically
connected water existed. LB 962 filled in much of the
gap for management of hydrologically connected
water but it did not establish a priority scheme to
the water to guide the NRDs and the DNR when they are
constructing an integrated management plan required
under LB 962. This Court has the opportunity to provide
that guidance. How else will the NRDs and DNR be able
to determine who receives the water? It is not in the
GWMPA or LB 962.
Contrary to Appellees' assertions, protection
of Spear T's vested property rights in District Court
will not nullify a legislative regulatory act. Use of
the district court, will, in fact, be an enforcement
tool for private parties consistent with the management
of hydrologically connected water. The Court need only
put the capstone in place to supply the missing key
for water management in Nebraska.
VI. Summary
Spear T is unable to use its surface
water appropriation, a vested property right, because
Pumpkin Creek is dry due to the pumping of irrigation
wells by Appellees. Appellees' actions constitute conversion
and nuisance under common law which has not been abrogated
by the GWMPA or LB 962. Referral to the NRD for resolution
is not consistent with the doctrine of primary jurisdiction.
The GWMPA, with or without LB 962, provides no process
for resolution of private conflicts, nor does it supply
a remedy. Confirmation that Appellant has a cause of
action based on its priority to hydrologically connected
water will both prevent an injustice and supply the
critical element missing in the management of water
in Nebraska.
Dated the 24th day of July 2004.
Respectfully submitted,
SPEAR T RANCH, INC., Appellant
By: Thomas D. Oliver, NSBA #21574
Attorney for Appellant
110 West 9th Street
P. O. Box 670
Bridgeport, NE 69336
(308) 262-2933
|
