IN THE SUPREME COURT OF THE STATE OF NEBRASKA

SPEAR T RANCH, INC., a Nebraska Corporation

Appellant

vs.

MELVIN G. KNAUB, MELVIN G. KNAUB FARMS, INC.; KNAUB, INC.; HOEHN FARMS, INC.; DARNALL RANCH, INC.; SPECIAL K, INC.; LEERAY EDENS; and BEVERLY EDENS, MARK HOEHN; KRISTA HOEHN; and ALLISON HOEHN; MELVIN G. KNAUB GRAND KIDS LIMITED PARTNERSHIP; XL FARMS, LLC; JOHN GIFFORD; and ROGER GIFFORD; OLSEN RANCHES, INC.; DONAHUE & RUTLEDGE, INC.; GEORGE A. DAVIS and LORETTA L. DAVIS; GIFFORD CIRCLE DIAMOND RANCH, INC.; RICHARD VAN PELT; and MARGARET VAN PELT; and MAX OLSEN

Appellees

CONSOLIDATED SUPPLEMENTAL BRIEF OF DEFENDANT-APPELLEES

Prepared and Submitted by:

.

TABLE OF CONTENTS

TABLE OF CONTENTS
TABLE OF AUTHORITIES
INTRODUCTION

1. Primary Jurisdiction
2. Ground Water Management and Protection Act
3. LB 962
4. Common Law Remedies

ARGUMENT

I. THE DOCTRINE OF PRIMARY JURISDICTION

A. Primary Jurisdiction - History and Definition
B. Relationship Between Primary Jurisdiction and the Constitutionally-Mandated Separation of Powers
C. Primary Jurisdiction - Factors to Consider
D. The North Platte Natural Resources District is an" Agency" for Purposes of Applying the Doctrine of Primary Jurisdiction

II. PRIMARY JURISDICTION IN LIGHT OF THE GROUND WATER MANAGEMENT AND PROTECTION ACT AND THE RECENT ADOPTION
OF LB962

A. The Nature of the Controverted Question Requires Application of the Primary Jurisdiction Doctrine
B. The Dispute Between the Parties Raises Issues of Policy that Must be Considered by the Appropriate Administrative Agencies in the Interests of Uniformity and Administrative Expertise

1. Legislative Policy
2. Interests of Uniformity
3. The NRDs Possess the Necessary Administrative Expertise

C. The Inquiry is One of Fact and of Discretion in Technical Matters and Uniformity can be Secured only if the Determination is made by the Agencies

D. The Legislature Devoted Significant Time and Resources to LB 962

E. Appellant's Attacks on the Legislature are Without Merit

F. The Regulatory Scheme Created by the Ground Water Management and Protection Act, as Amended by L.B. 962, Reinforces Correlative Rights

III. THE EFFECT, IF ANY, OF THE ADOPTION OF LB 962 ON THIS APPEAL

IV. WHETHER THE NEBRASKA GROUND WATER MANAGEMENT AND PROTECTION ACT OR LB 962 HAVE ABROGATED ANY COMMON LAW REMEDIES THAT THE APPELLANT MIGHT HAVE, OR PROVIDES AN ADEQUATE REMEDY AT LAW

A. Appellant's Conversion Claim Fails as a Matter of Law
B. A Nuisance Theory of Liability is also Unavailable

CONCLUSION

TABLE OF AUTHORITIES

CASES CITED

Central Platte Natural Resources Dist. v. State of Wyoming, 245 Neb. 439, 513 N.W.2d 847 (1994)
City of Grand Island v. Ehlers, 180 Neb 331, 142 N.W.2d 770 (1966)
City of Millard v. City of Omaha, 185 Neb. 617,177 N.W.2d 576 (1970)
Far East Conference v. United States, 342 US 570, 72 S. Ct. 492, 96 L. Ed. 576, (1952)
Francis v. City of Columbus, 267 Neb. 553, 676 N. W.2d 346 (2004)
Grever v. Idaho Telephone Co., 499 P.2d 1256 (Id. 1972)
Humphrey Feed & Grain, Inc. v. Union Pacific Rail Road, 199 Neb. 189, 257 N.W.2d 391 (1977)
In re Applications A-16027, 242 Neb. 315, 495 N.W.2d 23 (1993)
In re Interest of Battiato, 259 Neb. 829,613 N.W.2d 12 (2000)
Kosmicki v. State, 264 Neb. 887, 652 N.W.2d 883 (2002)
McDowell v. Rural Water District No. 2, 204 Neb. 401, 282 N.W.2d 594 (1979)
Mogensen v. Board of Supervisors, 268 Neb. 26, 679 N.W.2d 413 (May 21, 2004)
Olson v. City of Wahoo, 124 Neb. 802, 248 N.W. 304 (Neb. 1933)
Paasch v. Brown, 193 Neb. 368, 227 N.W.2d (1975)
Prather v. Eisenmann, 200 Neb. 1, 261 N.W.2d 766 (Neb. 1978)
Qwest Corp v. Kelly, 59P.3d 789 (Az.App.2002)
Sanitary and Improvement District No. 95 v. City of Omaha, 221 Neb. 272, 376 N.W.2d 767 (1985) 2004)
South Lake Worth Inlet Dist. v. Ocean Ridge, 633 So.2d 79 (Fla. App. 1994)
State ex. rel. Stenberg v Murphy, 247 Neb. 358, 527 N.W.2d 185 (1995)
Texas & P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 51 L. Ed. 553, 27 S. Ct. 350 (1907)
Travelers Ins. Co. v. Detroit Edison Co., 631 N.W.2d 733 (Mich. 2001)
United States. v. Western Pac. Rail Road, 352 U.S. 59; 77 S. Ct. 161; 1 L. Ed 2d 126 (1956)
Wagoner v. Central Platte Natural Resources District, 247 Neb 233, 526 N.W.2d 422 (1995)
Wong v. Gouverneur Gardens Housing Corp., 764 N.Y.S.2d 52 (N.Y. 2003)
World Radio Lab. v. Coopers & Lybrand, 2 Neb. App. 747, 514 N.W.2d 351 (1994)

CONSTITUTIONAL PROVISIONS AND STATUTES CITED

Article I, Section 19, Constitution of Nebraska
Article II, Section 1, Constitution of Nebraska
Ground Water Management and Protection Act
LB 962
Neb.Rev.Stat. §§46-656.01 etseq
Neb.Rev.Stat. §46.656.02, LB962 §42
Neb.Rev.Stat. §46-656.05
Neb.Rev.Stat. §46.656.12; LB 962 §49
Neb.Rev.Stat. 46-656.13, LB962, §50
Neb.Rev.Stat. 46-656.14, LB962, §51
Neb.Rev.Stat. §46-656.19, LB962 §52
Neb.Rev.Stat. §46-656.25, LB 962 § 79
Neb.Rev.Stat. §84-901
Neb.Rev.Stat. §84-1409
Neb. Rev. Stat. §84-1412

OTHER AUTHORITIES

Black's Law Dictionary, 7th ed. 1999
Nebraska Water Law & Administration (1984), Harnsberger and Thorson
Administrative Law Treatise, Vol. II, p. 917 (4th Ed. 2002), Richard C. Pierce
Restatement (Second) of Torts, § 858 (1979)
The American Law of Torts, Speiser, Krause, and Gans

INTRODUCTION

On April 21, 2004, the Supreme Court entered an Order requesting the parties to provide additional briefing and argument on the following 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 or LB 962 have abrogated any common law remedies that the appellant might have, or provide an adequate remedy at law.

1. Primary Jurisdiction

The doctrine of primary jurisdiction addresses the relationship between the courts and administrative bodies. The doctrine of primary jurisdiction is nothing more than a common-sense recognition that there are circumstances under which an administrative body, and not the judicial system, should be allowed to first consider and resolve certain issues. This Court has, in two separate cases, described the circumstances when primary jurisdiction should be used to foster issue resolution - In re Interest of Battiato, 259 Neb. 829,613 N.W.2d 12 (2000); Humphrey Feed & Grain, Inc. v. Union Pacific Rail Road, 199 Neb. 189, 257 N.W.2d 391 (1977).

2. Ground Water Management and Protection Act

The Ground Water Management and Protection Act was discussed extensively in the Joint Brief of Appellees previously filed in this case. To summarize, in 1996 the Nebraska Legislature made substantial changes to the Act to establish the mechanism for resolving conflicts between surface water appropriators and ground water users - the exact type of dispute at issue here. The mechanism adopted by the Legislature relies upon the twenty-three (23) publically-elected Natural Resource Districts (NRDs), or in the absence of action by the NRDs, the Nebraska Department of Natural Resources (DNR), for enforcement of the regulatory policy established by the Ground Water Management and Protection Act. In this case, it is the North Platte NRD (NPNRD) that exercises jurisdiction oyer ground water use and development within the Pumpkin Creek Basin. Challenges to any NRD action related to enforcement of the Ground Water Management and Protection Act proceed through the Administrative Procedures Act.

3. LB 962

LB 962 was adopted by the Nebraska Legislature on April 13, 2004 and signed into law on April 15,2004. It will become effective on July 15,2004. LB 962 amends the 1996 Ground Water Management and Protection Act and reflects a consensus that was reached in December, 2003 by the forty-nine-member Water Policy Task Force (Task Force) that was appointed by Governor Johanns in 2002. One of the primary purposes of LB 962 was to make the State and the NRDs more proactive in anticipating, preventing, and addressing conflicts between ground water users and surface water users, In those portions of the State where conflicts already exist, such as in the Pumpkin Creek Basin, LB 962 establishes principles and timelines for resolving those conflicts. While LB 962 will be discussed in greater detail below, one of its most significant provisions in terms of the current dispute is a provision adopted by the Legislature in 1996 but not amended in 2004 version of the Ground Water Management and Protection Act. That provision, found in Neb.Rev.Stat. § 46.656.02, LB 962 § 42, confirms the Legislature's intent to manage and administer ground water pursuant to the correlative rights doctrine: "Every landowner shall be entitled to a reasonable and beneficial use of the ground water underlying his or her land subject to . . . the correlative rights of other landowners when the ground water supply is insufficient for all users." In refusing to amend § 46.656.02, the Legislature has once again rejected Appellant's demand that ground water and surface water be administered together pursuant to the prior appropriation doctrine.

4. Common-Law Remedies

Appellant has no common-law remedies to enforce in this lawsuit. Appellant's conversion claim fails as a matter of law. A "nuisance" theory is without merit under Nebraska law and the Restatement (Second) of Torts, § 858 (1979).

ARGUMENT

I. THE DOCTRINE OF PRIMARY JURISDICTION

A. Primary Jurisdiction - History and Definition

The courts developed the primary jurisdiction doctrine in response to the proliferation of governmental agencies. The seminal decision was Texas & P.R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 51 L. Ed. 553, 27 S. Ct. 350 (1907), in which a shipper sought to recover allegedly excessive and unreasonable charges. Those charges, however, had been established in accordance with the Interstate Commerce Act, a primary purpose of which was to prevent discrimination. Considering that purpose, the United States Supreme Court held that the Act would be destroyed if courts were allowed to independently determine the reasonableness of shipping charges:

. . . [U]nless the requirement of a uniform standard of rates be complied with, it would result that violations of the statute as to preferences and discrimination would inevitably follow. This is clearly so, for if it be that the standard of rates fixed in the mode provided by the statute could be treated on the complaint of a shipper by a court and jury as unreasonable, without reference to prior action by the Commission, finding the established rate to be unreasonable, and ordering the carrier to desist in the future from violating the act, it would come to pass that a shipper might obtain relief upon the basis that the established rate was unreasonable, in the opinion of a court and jury, and thus such shipper would receive a preference or discrimination not enjoyed by those against whom the schedule of rates was continued to be enforced. . . . For if, without previous action by the Commission, power might be exerted by courts and juries generally to determine the reasonableness of an established rate, it would follow that, unless all courts reached an identical conclusion, a uniform standard of rates in the future would be impossible, as the standard would fluctuate and vary, dependent upon the divergent conclusions reached as to reasonableness by the various courts called upon to consider the subject as an original question. Indeed, the recognition of such a right is wholly inconsistent with the administrative power conferred upon the Commission, and with the duty, which the statute casts upon that body, of seeing to it that the statutory requirement as to uniformity and equality of rates is observed. Id. at 440-441,51 L. Ed. at 559, 27 S. Ct. at 355.

The Court concluded by stating that "a shipper seeking reparation predicated upon the unreasonableness of the established rate must, under the act to regulate commerce, primarily invoke redress through the Interstate Commerce Commission, which body alone is vested with power originally to entertain proceedings for the alteration of an established schedule. . . ." Id. at 448, 51 L. Ed. at 562,27 S. Ct. at 358. The Court so held despite the fact that the Interstate Commerce Act contained language which, on its face, purported to recognize all remedies that were allowed under the common law: "Nothing in this act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this act are in addition to such remedies." Id. at 446, 27 S.Ct. at 357-358. The Court concluded, nevertheless, that these words did not mean what they said, for to allow a private right of action in court would destroy the Act:

This clause, however, cannot in reason be construed as continuing in shippers a common-law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself. Id., 204 U.S. at 446, 51 L. Ed. at 561, 27 S. Ct. at 350.

The basic principles of the doctrine of primary jurisdiction evolved from the Supreme Court's decision in Abilene. This Court described those basic principles in In re Interest of Battiato, 259 Neb. at 837-8, 613 N.W.2d at 18-19:

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 purposes of a regulatory scheme. Humphrey Feed & Grain, Inc. v. Union P. R.R., 199 Neb. 189,257 N.W.2d 391 (1977). Whether the purposes of the administrative act require that the administrative agency should first pass on a question depends on whether the question raises issues of policy that should be considered by the administrative agency in the interests of uniformity and administrative expertise. See id.

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. See id. The effect of the application of the doctrine of primary jurisdiction is to preclude resorting to the courts in the first instance, or to preclude a court from supplying a remedy, or passing upon particular issues until the issues have been passed upon by the administrative agency. Id. 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. Id.

The doctrine does not apply where a pure question of law is at issue. (Citations omitted). 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. Id., citing Brown Lumber Co. v. L. & NR. Co., 299 U.S. 393, 57 S. Ct. 265, 81 L. Ed. 301 (1937)

Nebraska is in the majority in terms of application of the doctrine of primary jurisdiction. That majority is embodied in the standard text in this area, which for years was Administrative Law Treatise, by Kenneth C. Davis. Professor Davis has now handed the baton to Richard C. Pierce, and this Court cited his work with approval in Central Platte Natural Resources Dist. v. State of Wyoming, 245 Neb. 439,513 N.W.2d 847 (1994). Professor Pierce characterizes the doctrine of primary jurisdiction as allocating the initial decision-making responsibility between administrative agencies and courts in those circumstances where overlap and potential for conflicts exist:

Since the boundaries between judicial and agency responsibilities often are not clear and often depend on expert analysis of factual patterns, courts often use primary jurisdiction to allocate to an agency initial responsibility to decide whether an overlap that is likely to lead to conflicts actually exits.

If a court concludes that a dispute brought before the court is within the primary jurisdiction of an agency, it will dismiss the action on the basis that it should be brought before the agency instead. Similarly, if a court concludes that an issue raised in an action before the court is within the primary jurisdiction of an agency, the court will defer any decision in the action before it until the agency has addressed the issue that is within its primary jurisdiction. The court retains jurisdiction over the dispute itself and all other issues raised by the dispute, but it cannot resolve that dispute until the agency has resolved the issue that is in its primary jurisdiction. Richard C. Pierce, Administrative Law Treatise, Vol. II, p. 917 (4th Ed. 2002).

The primary jurisdiction doctrine does not act to deprive a court of jurisdiction, but is rather a matter of judicial self-restraint. Far East Conference v. United States, 342 US 570, 574-575, 72 S. Ct. 492, 494, 96 L. Ed. 576, 582 (1952); Travelers Ins. Co. v. Detroit Edison Co., 631 N. W.2d 733 (Mich. 2001); Qwest Corp v. Kelly, 59 P .3d 789 (Az. App. 2002); Grever v. Idaho Telephone Co., 499 P .2d 1256 (Id. 1972). The doctrine does not violate the "open courts" provision of our Constitution, as Appellant suggests on page 16 of its Additional Brief. It merely coordinates the functions of courts and administrative agencies, leaving each free to operate in its own proper sphere. United States. v. Western Pac. Rail Road, 352 U.S. 59,63-65; 77 S. Ct. 161, 164-166; 1 L. Ed 2d 126, 132 (1956). Wong v. Gouverneur Gardens Housing Corp., 764 N.Y.S.2d 52 (N.Y. 2003).

Harnsberger and Thorson in their text Nebraska Water Law & Administration (1984), § 5.29 at 269-270, concluded that the primary jurisdiction doctrine would be especially appropriate when addressing an issue substantially similar to what is before the Court in this case:

Given the complex nature of well interference cases and the possibility that rights of landowners not before the court might be affected, a court may want to refer a dispute to a natural resources district under the doctrine of primary jurisdiction. Natural resources districts have extensive power to manage ground water when supplies are short. Although a natural resources district would not be required to resolve a dispute, resolution might be within its power. An agency need not have a duty to act in order to invoke the doctrine of primary jurisdiction. It is enough if an opportunity to act exists and the court feels that application of the knowledge or skill of the agency would be useful in resolution of the suit.

B. Relationship Between Primary Jurisdiction and the Constitutionally-Mandated Separation of Powers

The doctrine of primary jurisdiction is an aspect of the doctrine of separation of powers, which is of constitutional dimension in Nebraska because our Constitution expressly forbids any department of government from exercising a power properly belonging to another. Article II, Section 1, Constitution of Nebraska. See also, Travelers Ins. Co. v. Detroit Edison Co. supra, and the cases cited; South Lake Worth Inlet Dist. v. Ocean Ridge, 633 So.2d 79, 82 (Fla.App.1994).

The doctrine of separation of powers is particularly relevant to this case because the Nebraska Legislature has established the ground water regulatory and management policy (e.g., the Nebraska Ground Water Management and Protection Act, as amended by LB 962), and has delegated to the NRDs the responsibility for its enforcement. It is also critical that there are no allegations that Appellees' ground water pumping has violated the regulations that were adopted to address the very type of conflict that is now before this Court. To be more specific, the Legislature delegated to the NPNRD the responsibility for enforcing the Ground Water Management and Protection Act in the Pumpkin Creek Basin. The NPNRD adopted the Pumpkin Creek Basin Ground water Management Sub-Area, and the Rules and Regulations for the Pumpkin Creek Basin Ground water Management Sub-Area (hereafter referred to as the "Pumpkin Creek Rules and Regulations"). None of the defendants have violated the Pumpkin Creek Rules and Regulations. Yet, the Appellant, Spear T Ranch, Inc., is asking the Court to develop a judicial remedy to declare unlawful the very conduct that the Legislature and the NPNRD have declared to be lawful. The Appellant is asking the Court to carve out from application of the Ground Water Management and Protection Act a smidgen of geography in the Panhandle of Nebraska where the courts would favor it with a regulatory and management scheme different from that adopted by the Legislature and the NPNRD, and that differs from how ground water is managed throughout the remainder of the State. Appellant's request finds no foothold in Nebraska jurisprudence, and blatantly violates the separation of powers doctrine and the doctrine of primary jurisdiction.

That Appellant is asking the Courts to violate the separation of powers doctrine is perhaps most obvious from the following lamentation set forth on page 11 of its Additional Brief: "Nebraska's water management scheme is in the present state of chaos because the State has blindly insisted on creating two systems of water management - one for ground water and the other for surface water when the two are nearly always connected in Nebraska." Appellant is asking the Court to correct the wrong that he believes has been visited on the State by the Legislature's refusal to manage ground water and surface water together under the prior appropriation doctrine. Appellant, in other words, is asking the Court to legislate in violation of the Nebraska Constitution.

C. Primary Jurisdiction - Factors to Consider

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 purposes of a regulatory scheme. See, In re Interest of Battiato, supra,; Humphrey Feed & Grain, Inc. v. Union Pac. Rail Road, supra. There are several factors to consider when deciding whether primary jurisdiction should be exercised: first, whether the dispute raises issues of policy that should be considered by the administrative agency in the interests of uniformity and administrative expertise; second, whether the inquiry is essentially one of fact and of discretion in technical matters and whether uniformity can be secured only if determination is made by that agency; and finally, the nature of the question raised and of the inquiry necessary for its solution. This Court explained in Battiato v. Wilson, 259 Neb. at 838, 613 N. W. 2d at 19, that "the initial inquiry for this court is the nature of the question" that has been raised. See also, Humphrey, supra.

This Court's formulation of the factors is consistent with the majority as expressed by Professor Pierce:

To make such determinations, courts consider the following factors: (1) the extent to which the agency's specialized expertise makes it a preferable forum for resolving the issue; (2) the need for uniform resolution of the issue; and, (3) the potential that judicial resolution of the issue will have an adverse impact on the agency's performance of its regulatory responsibilities while increasingly balancing the considerations that favor allocation of initial decisionmaking responsibility to an agency against the likelihood that application of the primary jurisdiction will unduly delay resolution of the dispute before the court. Richard J. Pierce, Administrative Law Treatise, Vol. II, at. 917.

D. The North Platte Natural Resources District is an " Agency" for Purposes of Applying the Doctrine of Primary Jurisdiction

Appellant sites no authority for its assertion that "the doctrine of primary jurisdiction is only applicable to administrative agencies, not political subdivisions such as natural resources districts." (Appellant's Additional Brief at 8, 13). Contrary to Appellant's claim, NRDs are indeed, by statute and case-law, "administrative agencies."

The Administrative Procedures Act defines "agency" as "each board, commission, department, officer, division, or other administrative office or unit of the state government authorized by law to make rules and regulation. . . ." Neb.Rev.Stat. § 84-901(1). This Court has consistently treated NRDs as administrative agencies. Of particular note is Wagoner v. Central Platte Natural Resources District, 247 Neb 233,526 N. W.2d 422 (1995), in which this Court held that the Central Platte NRD (CPNRD) was an administrative agency. In reaching that conclusion, this Court recited and applied a number of familiar rules that govern administrative agency action, such as: (1) the standard of review for agency decisions, (2) the rebuttable presumption of validity that attaches to agency actions, (3) the deference accorded to an agency's interpretation of its own regulations, (4) the Legislature's power to delegate authority to an administrative agency to make rules and regulations, and (5) the Legislature's ratification of rules promulgated by administrative agencies. Both this Court and the parties in Wagoner were correct to characterize the CPNRD as an administrative agency.

Even as the Appellant's Additional Brief was being prepared, this Court reaffirmed its previous definition of "administrative agency" as "a governmental authority, other than a court and other than a legislative body, which affects the rights of private parties through either adjudication or rulemaking." Mogensen v. Board of Supervisors, 268 Neb. 26, 679 N. W.2d 413 (May 21,2004). See also, State ex. rel. Stenberg v Murphy, 247 Neb. 358, 366, 527 N.W.2d 185, 193 (1995). Agencies are created by the Legislature "to perform activities which the Legislature deems desirable and necessary to forward the health, safety, welfare and morals of the citizens of this State." Mogensen, supra, Stenberg, supra. The NRDs embody these duties. See also, McDowell v. Rural Water District No. 2, 204 Neb. 401,412,282 N.W.2d 594,600 (1979).

Like municipal corporations, NRDs are political subdivisions of the state, "created as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them." Sanitary and Improvement District No. 95 v. City of Omaha, 221 Neb. 272, 376 N. W.2d 767 (1985) (emphasis added); City of Millard v. City of Omaha, 185 Neb. 617, 177 N.W.2d 576 (1970). In In re Applications A-16027, 242 Neb. 315,495 N. W.2d 23 (1993), this Court held that "Little Blue, as a creature of statute and a political subdivision, is also an agency within the meaning of §37-453(3) [which requires all state departments and agencies to carry out programs for the conservation of endangered species]." (Emphasis supplied). In short, NRDs are "agencies" and the primary jurisdiction doctrine is applicable to them.

II. PRIMARY JURISDICTION IN LIGHT OF THE GROUND WATER MANAGEMENT AND PROTECTION ACT AND THE RECENT ADOPTION OF LB962

A. The Nature of the Controverted Question of the Primary Jurisdiction Doctrine

As noted above, the initial inquiry when considering the applicability of primary jurisdiction is the nature of the controverted question. See, in re Interest of Battiato, supra; Humphrey Feed & Grain, Inc. v. Union Pac. Rail Road, supra. Since this case was decided by the District Court on a Rule 12(b) Motion, the nature of the controverted question is to be derived from the allegations of the Complaint. Those allegations are as follows:

1. Plaintiff has a surface water right out of Pumpkin Creek. (T3, ¶3).
2 The Defendants are within the Pumpkin Creek Ground water Management Sub-Area and are subject to the rules and regulations promulgated by the North Platte Natural Resources District. (T3, ¶4,5).
3. Defendants are pumping ground water that is hydrologically connected to Pumpkin Creek. (T3, ¶6, 7).
4. The pumping by the Defendants is interfering with Plaintiffs' surface appropriation right. (T3, ¶8-12).

Importantly, Appellant is not complaining that the Appellees violated the NPNRD Pumpkin Creek Rules and Regulations (T2-4). Considering Appellant's allegations, the question presented may be accurately stated as follows:

Is a judicial remedy available against parties who (in full conformance with all rules, regulations and laws) engage in an activity that is under the jurisdiction of, and regulated by, a government regulatory agency?

The resolution of the foregoing question requires consideration of two broader issues:

How should hydrologically connected surface water and ground water be allocated among surface appropri.ators and ground water pumpers?

How and by whom will Nebraska's water resources be managed and administered?

Appellant, of course, prefers to express the question differently:

The principal question before the Court is the right to the use of hydrologically connected water as between a surface water appropriator (herein "Appropriator') and a ground water irrigator (herein "Pumper") when there is insufficient water to satisfy the surface water appropriation. (Appellant's Additional Brief at 8).

Appellant's question ignores both the threshold and the ultimate questions. Appellant's question ignores the fact that the applicable Pumpkin Creek Rules and Regulations, as well as Nebraska statutory law, allow the Appellees to do what they are doing. Stated another way, Appellant's question ignores the fact that Appellees are legally entitled to pump and use the water at issue. At no point does Appellant explain how, consistent with the Constitutional principle of separation of powers, the judicial department of government should grant any relief against a party whose conduct has been declared lawful by the legislative department of government, which was created for the specific purpose of defining what is lawful and what is unlawful.

Appellant also ignores the ultimate question: How and by whom will Nebraska's water resources be managed and administered? Is it for the Courts or for the Legislature to decide who will manage and administer water rights in Nebraska? As was described in the Joint Brief of Appellees, this Court has not often been called upon to determine the relative rights of the users of surface and ground water. In those circumstances when the question arose, however, this Court has clearly concluded that the nature and extent of such rights must be resolved by the Legislature. We again call the Court's attention to Central Platte Natural Resources District v. State of Wyoming, 245 Neb.439 at 451-452,513 N. W.2d 847 at 857-858:

The anticipated conflict [between the relative rights of those using ground and surface water] is best resolved by the policy-based decision-making process that is the province of our Legislature . . . It is the Legislature, and not the courts, which can paint a water rights picture with broad strokes and bold colors. It is to the Legislature that Wyoming must direct its argument regarding future ground water depletion.

The answer to the ultimate question, of course, is that it is for the Legislature to declare public policy and to identify the agencies responsible for carrying it out. The Legislature has established the public policy and delegated to the designated agencies (the DNR and the NRD) the task of enforcing it.

B. The Dispute Between the Parties Raises Issues of Policy that Must be Considered by the Appropriate Administrative Agencies in the Interests of Uniformity and Administrative Expertise

1. Legislative Policy

It is apparent from Appellant's Additional Brief that its entire theory of liability is based on the argument that surface appropriators have an absolute priority over ground water users. That theory, however, was not the law under the 1996 Ground Water Management and Protection Act and it is not the law under LB 962. Rather, as is quoted above, every landowner has the statutory right to the use of the water underlying his or her land, limited only by the correlative rights doctrine, which means "share and share alike."

The Legislature explicitly recognizes that the management, conservation and beneficial use of hydrologically connected ground and surface water "may need to be managed differently from unconnected ground water -and surface water in order to permit equity among water users and to optimize the beneficial use of interrelated ground water and surface water supplies." Neb.Rev.Stat. §46-656.05 as amended by LB 962, § 43 (Emphasis added). Similar language appeared in the introductory section of LB 1003, the legislative bill that created the 2002 Task Force. The Legislature again used the word "equity" when referring to the relative rights of the users of ground and surface water. The legislative policy is clearly stated and it does not recognize or impose priority administration between surface and ground water users. Appellant's claimed "right of priority" is refuted most clearly by the Legislature's stated intent to protect ground water users, and to protect the correlative rights of landowners.

To accomplish the goal of optimizing the beneficial use and to reduce conflicts, the Legislature has recognized that not only ground water use; but also surface water use, must be regulated:

The Department of Natural Resources is responsible for regulation of surface water resources and the local water project sponsors are responsible for much of the structured irrigation utilizing surface water supplies, and these entities should be responsible for regulation of surface water related activities which contribute to conflicts between ground water users and surface water appropriators or to water supply shortages in fully appropriated or over-appropriated river basins, subbasins or reaches. Neb.Rev.Stat. §46-656.05 as amended by LB 962, Section 43.

If surface water appropriators had an absolute priority over ground water users, there would be no need to regulate "surface water related activities which contribute to conflicts between ground water users and surface water appropriators." Once again, the Legislature has adopted words of sharing and reasonable use, not of priority administration between surface and ground water users.

Appellant makes much of the fact that the use of ground water can have an impact on the stream flows. That fact is not in dispute in the proceedings before this Court, and throughout LB 962 the Legislature recognizes such a relationship. Despite being fully aware of the connection between surface and ground water in certain basins, subbasins, and reaches, the Legislature voted to make LB962 the law, and delegated to the NRDs and the DNR the authority to adopt the necessary rules and regulations to address each such situation. In adopting LB 962 with full knowledge of the relationship between surface water and ground water, the Legislature did not do what Appellant argues it should have done - it did not set up a regulatory scheme that allows a surface water user to shut off a ground water user whenever the surface water/ground water interconnection manifests itself in a decrease in streamflow. The Legislature also refused to allow a surface water user to file suit against a ground water user for money damages because streamflow has decreased.

In a similar vein, the Legislature has recognized that surface water use may need to be curtailed because the appropriation of stream flows can have an impact on ground water:

A river basin, subbasin, or reach shall be deemed fully appropriated if the department [of natural resources] determines that then-current uses of hydrologically connected surface and ground water in the river basin, subbasin, or reach cause or will in the reasonably foreseeable future cause...(b) the streamflow to be insufficient to sustain over the long term the beneficial uses from wells constructed in aquifers dependant on recharge from the river or stream involved … LB 962 § 53.

If an area is determined to be "fully appropriated" or "over appropriated" (as those phrases are defined in LB 962, discussed in greater detail below), an integrated management plan must be developed by the DNR and the NRDs. This plan "shall" include ground and surface water controls sufficient not only to protect surface water appropriators from streamflow depletion but also to "protect the ground water users whose water wells are dependent on recharge from the river or stream involved." LB 962 § 56. There would of course be no need for a statutory requirement to protect such ground water users if the law were that in times of shortage, the surface water appropriators had an absolute priority. Obviously, the Legislature intended something quite different.

No one could deny that the relative rights of users of ground water and surface water is a public policy question of the utmost importance. No one could deny that resolution of questions of public policy is the domain of the Legislature. This Court's call in Central Platte Natural Resources District v. State of Wyoming, 245 Neb. 439 at 513 N.W.2d at 857, for a legislative solution was addressed by the 1996 amendments to the Ground water Management and Protection Act, Neb.Rev.Stat. §§46-656.01 et seq., as amended by LB 962 in 2004. That legislative policy should be enforced by the NRDs and DNR, the agencies endowed with extensive management tools with which to carry out their duties.

Appellant seeks nothing less than for the Court to define public policy through judicial fiat. Even more troubling is the fact that the public policy Appellant is demanding that the Court adopt is directly contrary to the legislative pronouncements on this matter.

2. Interests of Uniformity

Appellant complains that there are twenty-three NRDs and that "each one could make a different determination, or use different controls for the same problem." Additional Brief at 14. Appellant has missed the point. The "uniformity" consideration does not require that every NRD adopt the exact same controls. Rather, uniformity refers to the legislative mandate that ground water and surface water be administered pursuant to the provisions of, and policies embodied in, the Ground Water Management and Protection Act, which, by its terms, provides the NRDs and DNR with a broad array of tools for managing the water resources of the State.

Appellant is asking the Court to reject the Ground Water Management and Protection Act and adopt a piece-meal approach to water disputes throughout the State, an approach that could result in some areas being governed by the prior appropriation doctrine, and others being governed by the correlative rights doctrine. In arguing for piece-meal decision-making, Appellant attacks the Legislature for giving the NRDs and DNR the necessary flexibility to carry out the Ground Water Management and Protection Act, as amended by LB 962. In other words, Appellant attempts in this case to equate "uniformity" with a rigidity that would defeat the very purpose of the Ground Water Management and Protection Act. Appellant then uses that lack of rigidity to argue that the uniformity prong of the test cannot be met. Again, Appellant misses the point.

The Ground Water Management and Protection Act, as amended by LB 962 addresses this - very point:

... [T]he controls adopted by the district pursuant to this section may contain different provisions for different categories of ground water use for portions of the management area which differ from each other because of varying climatic, hydrologic, geologic, or soil conditions. Any differences in such provisions shall recognize and be directed toward such varying ground water uses or varying conditions. ... [I]f the district adopts different controls for different categories of ground water use, those controls shall be consistent with section 46-613 and shall, for each category, be uniform for all portions of the area which have substantially similar climatic, hydrologic, geologic, and soil conditions. Neb.Rev.Stat. §46-656.25(1)(n)(4), LB 962 § 79.

Each of the State's twenty-three NRDs are faced with different hydrologic regimes and considerations. The NRDs must contend with a variety of issues that affect each of them differently, including the amount of water available, the extent of its hydrological connection between surface water and ground water, and the nature and amount of use in each district. The "uniformity" of the Ground Water Management and Protect Act relates to the Legislature's creation of a framework within which the PNR and NRDs address these issues and the vagaries of water rights administration, rather than a one-size-fits-all policy that would be impossible to create and enforce. The Legislature has delegated the details of the local water administration to the elected representatives of the people who are most familiar with their local situations. This is not a problem; this is the essence of the regulatory scheme.

The framework and regulatory mechanisms created by the Legislature would be nullified if the Court were to adopt Appellant's proposed solution - that water administration and management be developed, defined and enforced through a scattering of lawsuits throughout the State. According to Appellant, "the Court is in a better position to bring consistency and uniformity than a natural resources district." (Appellant's Additional Brief at 8). That argument does not pass the straight-face test. Statutes and regulations apply to everyone; judicial decisions, in general, apply only the parties to the case. Judicial decisions are addressed to the facts and technical matters presented and will vary depending upon the nature of the issues involved. Judicial decisions simply do not, and should not, paint with the same broad brush that is used in developing and enacting statutes and regulations. The chaos that would be created if water rights and administration were defined by judicial resolution rather than by the Legislature is apparent from the current dispute. Appellant is seeking $ 4,000,000.00 in damages and permanent injunctions against a limited number of targets, despite admitting that other ground water users are causing or contributing to his alleged injury. Appellant's decision to piece-meal even the current case shows that his "regulation by litigation" theory is invalid.

History has shown that water availability increases and decreases. A system of controls that is appropriate in June could be inadequate by July. The Legislature has recognized this fact and has delegated to the NRDs the authority and the tools to modify their regulations ''as often as deemed necessary by the district ... "Neb.Rev.Stat. §46-656.19, asamendedbyLB 962 §52. Courts are not designed to govern or monitor complex and ever-changing situations. Administrative bodies are, and it is to them that the Legislature has appropriately delegated this task.

Appellant's complaint that the stream is running dry can only be addressed in the context of the larger regulatory policy as adopted by the Legislature. Appellant's complaint should be addressed to the NRDs.

3. The NRDs Possess the Necessary Administrative Expertise

Appellant argues that administrative expertise is the main justification for the primary jurisdiction doctrine. Appellant then asserts that the primary jurisdiction doctrine is inapplicable because such expertise is not required when addressing the issue before the Court and NRD Board members should not be considered "experts". (Appellant's Additional Brief at 4-8). The only way the relative rights of users of ground and surface water could be "clearly a question of law" as Appellant characterizes the question, would be if the Legislature had resolved it by giving a simple, unqualified answer applicable at all times and in all places. Appellant still clings desperately to the notion that somehow, in some fashion known only to the Appellant, it has been declared that in times of shortage, the surface water appropriators have all priority rights, and the ground water pumpers have none. The Legislature has clearly declared the law to be otherwise, and concluded that it is the NRDs and the DNR that possess the necessary expertise. The Legislature decided long ago that ground water users have rights and that, in times of shortage, the available water is to be shared. The question of how hydrologically-connected water is managed and allocated to protect to the greatest extent possible the legitimate rights of all parties obviously involves resolution of highly technical hydrological questions including, for demonstrative purposes, the following: How much water is available? What is the rate of withdrawal? What is the rate of recharge? What are the transmissivities and lag factors? What are the infiltration rates? What is the depth to water? What is the saturated thickness of the aquifer? What are the primary ground water-bearing rocks? What levels of withdrawal can be sustained and over what period of time? At what level of withdrawal will stream flows be effected, and to what extent? At what level of stream diversions will wells be effected, and to what extent? What are the timing considerations? What management techniques and controls are best suited for dealing with the changing local situation? There are many other questions that must be considered by the agencies that possess the necessary administrative expertise - the NRDs and the DNR - to resolve these matters.

C. The Inquiry is One of Fact and of Discretion in Technical Matters and Uniformity can be Secured only if the Determination is made bv the Agencies

Appellant asks the Court to rule that whenever there is a dispute between ground water and surface water use, the surface water users win. Appellant's request, which is addressed to the relative rights of surface water users and ground water users, is "essentially one of fact and discretion in technical matters. . . ." Battiato, supra; Humphrey, supra. The questions laid out in the previous section are just a few that must be taken into consideration when developing the rules and regulations necessary to deal with hydrologically-connected surface water and ground water. These inquiries are obviously best suited for administrative bodies, not for the courts. It is to these issues that the doctrine of primary jurisdiction must apply. Appellant is correct that there are fundamental questions of law at issue in the current dispute. Those questions of law, which were discussed in detail in the Joint Brief of Appellees and addressed during oral argument, are directed to the fundamental issue of whether a ground water user can be held liable in money damages, and have his farming operations ruined by entry of an injunction against future pumping. Those questions are not subject to the primary jurisdiction doctrine because, by their nature, they must be decided by the Court. Appellees have shown that Nebraska law does not support Appellant's theory that Appellees could somehow unlawfully "convert" water that belonged to them in the first place. Nebraska law cannot be interpreted or enforced in such a manner as to make illegal those actions that are, by definition, statutorily legal e.g., a landowner's entitlement to the reasonable and beneficial use of the ground water-underlying his or her land subject only to the correlative rights doctrine. See Neb.Rev.Stat. § 46.656.02; LB 962 § 42. Appellees are not seeking to have the Court apply the doctrine of primary jurisdiction to these questions of law.

Appellees' reliance upon the doctrine of primary jurisdiction relates more specifically to the second level of inquiry when evaluating the questions at hand. That level of inquiry relates to the nature of the remedies that are available to surface water users (or other ground water users) when the water supply in a particular basin, subbasin, or reach is inadequate for all of the demands. The primary jurisdiction doctrine requires that the resolution of the technical matters associated with the relative rights of surface water users and ground water users be made by the agencies that have the special competence, or administrative expertise, to make such decisions. The Legislature, through adoption of the Ground Water Management and Protection Act, as amended by LB 926, identified the NRDs and DNR as being the administrative agencies with the special competence to address hydrologically-connected surface and ground water, and the problems and challenges that result from such connection. Recognizing that special expertise, the Legislature then delegated to the NRDs and the DNR the authority to resolve the disputes between surface water users and ground water users and defined the statutory framework (the Ground Water Management and Protection Act, as amended by LB 962) to do so. The regulatory scheme created by the Legislature was adopted for the purpose of addressing the very type of issue that is now before this Court. It is that regulatory scheme that the Appellees are asking the Court to enforce by application of the doctrine of primary jurisdiction. It is application of that regulatory scheme to this case that comprises the "question of fact and of discretion in technical matters" that should be addressed to the NRDs and the DNR.

D. The Legislature Devoted Significant Time and Resources to LB 962

The time and resources that the Legislature has devoted to the issue of water rights and administration, including specifically the relative rights of the users of ground and surface water, show that it considers this matter to be of the utmost importance. LB 962 implements the changes to Nebraska's water policy that were recommended by the forty-nine-member Task Force appointed by the Governor. The Task Force represented a broad array of interests and was made up of members representing the NRDs, power, municipalities, agricultural organizations, recreationists, environmental groups, ground water irrigators, surface water irrigators, "at large" members, and State government. The Task Force met for a period of eighteen (18) months. Two-hundred-fifty-thousand dollars was appropriated to pay for the Task Force activities. (Laws 2002, L.B.1003, § 11 [6]). In Section 1 of LB 1003 creating the Task Force, the Legislature described its purpose:

The legislature finds that there are significant issues relating to the laws of Nebraska governing the management and use of Nebraska surface water and ground water. Issues to be examined are: (1) a review of Laws 1996, LB108 [The Ground Water Management Act], to determine what, if any, changes are needed to adequately address Nebraska's conjunctive use management issues … and (5) a determination as to what other ways, if any, inequities between surface water users and ground water users need to be addressed and potential actions the state could take to address any such inequities. To address such issues, the Governor shall appoint a Water Policy Task Force, as provided in section 2 of this act. (Emphasis supplied).

The language that is emphasized above demonstrates the legislative acknowledgment that there are circumstances where there are inequities between the users of ground water and surface water. It also demonstrates a legislative intent to address those inequities. Appellant argues that the relationship between a surface water user and a ground water user, at least in times of shortage, could be likened to the relationship between an owner and a thief. In times of shortage, Appellant claims, the surface water users have all the rights and the ground water user has none. The public policy adopted by the Legislature, however, is otherwise.

Senator Ed Shrock, Chairperson of the Natural Resources Committee, described the key components of LB 962 as follows:

Key components of the Task Force recommendations are: first, maintain the basic framework of the existing institutional and legal framework governing the use of surface and ground water; second, modify the existing laws to be more proactive and requirement [sic] certain management actions to be taken jointly by the department and natural resources district in basins that are declared to be over appropriated (currently this would be the Platte River Basin above Elm Creek) or fully appropriated … The Task Force also recommended that there be adequate funding to develop a sound scientific basis for management decisions and fair implementation of the integrated management plans. (Laws 2004, LB 2004, Introducer's Statement of Purpose).

In its adoption of LB 962, the Legislature took seriously its responsibility to study and to determine Nebraska's water policy. It created a special task force for this purpose, devoted time and resources to the job and, for the most part, accepted the recommendations of the Task Force. LB 962 resulted from an enormous amount of work, and provides the overall legislative and regulatory policy statement regarding water rights management and administration in Nebraska. It reflects the consensus of a disparate group of interests, including surface water users and managers, and must (') be enforced according to its terms, despite the fact that those terms do not sustain Appellant's claim of absolute priority of right. In other words, it reflects a stellar performance of the political process. There is no doubt that the Ground Water Management Protection Act as amended by LB 962 constitutes a "regulatory scheme" as that term was used by this Court in Battiato and Humphrey.

E. Appellant's Attacks on the Legislature are Without Merit

Appellant declares that "Nebraska's management scheme is in the present state of chaos because the State has blindly insisted on creating two systems in water management." Appellant's Additional Brief at 11. It complains of "this cumbersome administrative process" of which it is sure it will be the victim. Appellant's Additional Brief at 21. It asserts that the regulatory bodies have not, and will not, accept their responsibilities: "The common refrain from these entities is 'it's not my responsibility.' The DNR claims it is a ground water issue. The NRD asserts this is surface water. The future does not bode well …" Appellant's Additional Brief at 21. The makeup of the NRDs is also flayed, with Appellant attacking not only our representative form of government, but the expertise of the NRD members: "Board members of the natural resources districts are elected by the public. As mentioned in other briefs, Pumpers outnumber Appropriators approximately eight to one. … Aside from the apparent bias of NRDs toward Pumpers, no specific expertise is required to become a board member of an NRD. Anyone can run for a seat on the board." Appellant's Additional Brief at 9.

Appellant goes on to challenge the NRD boards: "One need only to look at the latest allocation established by the NPNRD for the Pumpkin Creek Management Subarea to see this political influence. Ground water users were allowed 14 inches of water and Appropriators were allocated nothing." Id. What Appellant fails to acknowledge, however, is that the NPNRD does not have the authority to allocate surface water. Surface water is under the jurisdiction of the DNR. Neb.Rev.Stat. § 46-656.05 (LB 962 § 43). Appellant next complains that too much water has been allocated to ground water users: "As for the NRD, it has established an allocation of 14 inches for Pumpers from the amended rules and regulations for the Pumpkin Creek Ground water Management Subarea, despite indications that any more than an 8 inch allocation will not sustain the water table." Id. at 21. Appellant's allegations are an invitation to the judiciary to constitute itself a superagency and promulgate regulations more to Appellant's liking. In fact, Spear T Ranch, Inc., has made it clear that, in its opinion, the only suitable rules are those that guarantee the result that it wants:

... [I]f the GWMPA modified by L.B. 962 is to provide an adequate remedy at law for Spear T and other similarly situated Appropriators, an Appropriator must be assured that ground water consumption will be curtailed if the Appropriator proves up his case.

Unfortunately the GWMP A modified by L.B. 962 provides no such assurance. Id. at 24.

There can be only one motive for Appellant's denouncing the Legislature's work. It is asking this Court to reject the Ground Water Management and Protection Act, including the LB 962 amendments, and to create the very judicial remedy - priority appropriation for all surface water and ground water rights - that has been repeatedly rejected by the Legislature and by the Nebraska Supreme Court. See Olson v. City of Wahoo, 124 Neb. 802,248 N. W. 304, 308 (Neb. 1933). The Appellant's demand is fundamentally flawed, without basis, and a violation of Nebraska water law. Appellant simply does not have a right, statutorily or otherwise, to demand that its 1950's-era surface right be satisfied regardless of all other interests and regardless of the legitimacy of the other claims to the water at issue. Appellant has no right to request the Court to disregard and actively sabotage the Legislature's regulatory scheme. This Court has ruled that the judiciary will not question the wisdom of a legislative enactment. City of Grand Island v. Ehlers, 180 Neb 331, 142 N.W.2d 770 (1966). The duty of the judiciary is to discern the will of the Legislature and to give it effect, not to frustrate the legislative will. See, Kosmicki v. State, 264 Neb. 887, 652 N. W.2d 883 (2002) and many others.

F. The Regulatory Scheme Created by the Ground Water Management and Protection Act. as Amended by L.B. 962. Reinforces Correlative Rights

LB 962 is 179 pages long and amends a substantial portion of the Ground Water and Management Protection Act, Neb.Rev.Stat. §§46-656.01 through 46-656.57. We will not attempt a comprehensive review of the Ground Water Management and Protection Act as it now exists (e.g., with the LB 962 amendments), but believe that a summary of the most relevant provisions is appropriate. Before addressing the specifics of the amendments, however, it is important to again point out one provision of the Act that the Legislature chose not to change from the previous version: "Every landowner shall be entitled to a reasonable and beneficial use of the ground water underlying his or her land subject to . . . the correlative rights of other landowners when the ground water supply is insufficient for all users." Neb.Rev.Stat. § 46-656.02; LB 962 § 42. From that overarching statement of policy, the remainder of the statute flows. The significant points are as follows:

1. In times of shortage, water is to be shared. Contrary to Appellant's insistence, it does not have a right or priority over its neighboring ground water users.
2. The Ground Water Management and Protection Act provides Appellant a remedy in that Appellant has the right to ask for, and the NRD has the power to grant, restrictions on the use of ground water.
3. Contrary to Appellant's assertion (p.10), the Ground Water Management and n Protection Act is "such a comprehensive regulatory scheme that the Court should defer to the NRD."
4. The recognition of a judicial remedy, particularly any attempt to regulate ground water use by injunction, would sabotage the Ground Water Management and Protection Act.

Each of the foregoing will be addressed separately.

1. In times of shortage, water is to be shared; Appellant does not have a right of priority over its neighboring ground water users

The first point was addressed earlier in this brief and that discussion will not be repeated here. In summary, the Legislature has clearly attempted to strike a balance to provide protections for all water users, and has adopted a regulatory procedure for doing so. The Legislature did not adopt the prior appropriation doctrine to apply to surface water users and ground water users.

2. The Ground Water Management and Protection Act provides Appellant a remedy in that Appellant has the right to ask for, and the NRD has the power to grant, restrictions on the use of ground water

Appellant repeatedly insists that Ground Water Management and Protection Act provides no remedy: "Relief, of course, is not available from an administrative agency." Appellant's Additional Brief at 5; "The GWMPA as modified by LB 962 contains no rules or regulations defining the rights as between an Appropriator and Pumper who are in conflict over the same water. It provides no mechanism at all for one of these parties to seek redress for its injury ." Appellant's Additional Brief at 14. Contrary to Appellant's claims, the Act does provide a remedy - it just is not the one that Appellant was looking for.

Appellant's preferred remedy is be awarded millions of dollars against certain neighbors and to ruin their farming operations regardless of their right to use the water underlying their land. The Ground Water Management and Protection Act does not provide for the recovery of monetary damages against a neighboring landown