TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE BASIS OF JURISDICTION OF THE COURT OF APPEALS

STATEMENT OF THE CASE

PROPOSITIONS OF LAW

ARGUMENT

I. THE DEPARTMENT OF NATURAL RESOURCES HAS JURISDICTION TO REGULATE UNPERMITTED DIVERSIONS TO PROTECT STREAMFLOW

II. THE AUTHORITY OF NATURAL RESOURCES DISTRICTS TO REGULATE GROUND WATER IS NOT RELEVANT TO THE ISSUE IN THIS APPEAL

III. THE NEBRASKA CONSTITUTION IS THE SUPREME LAW OF THE STATE

IV. THE DECISIONS OF THE UNITED STATES SUPREME COURT REFLECT THE MODERN VIEW THAT WATER RIGHTS MUST BE PROTECTED FROM UNPERMITTED DIVERSIONS, REGARDLESS OF THE METHOD OF DIVERSION

CONCLUSION

TABLE OF AUTHORITIES
CASES

Arizona v.California, 376 U.S.340 (1964)

Bamford v. Upper Republican Nat. Resources Dist., 245 Neb. 299, 512 N.W.2d 642 (1994)

Drainage Dist. No. 1 of Lincoln County v. Suburban Irr. Dist., 139, Neb. 460, 298 N. W. 131 (1941)

Galyen v.Balka, 253 Neb.270, 570 N.W.2d 519(1997)

Hillcrest Country Club v. N.D. Judds Co., 236 Neb. 233, 461 N.W.2d 55 (1990)

In re Application A-16642, 236 Neb. 671,463 N.W.2d 591 (1990)

In re Appl. U-2, 226 Neb.594, 413 N.W.2d 290(1987)

Nape v. Game & Parks Comm., 220 Neb. 883, 374 N.W.2d 46 (1985)

Neb. P. P. Dist. v. Hershey School Dist., 207 Neb. 412, 299 N.W.2d 514 (1980)

Nuzum v. Board of Ed. of Sch. Dist. of Arnold, 227 Neb. 387,417 N.W.2d 779 (1988)

Olson v. City of Wahoo, 124 Neb. 802, 248 N.W. 304 (1933)

Parks v.Holy Angels Church, 160 Neb.299, 70 N.W.2d 97(1955)

Sorensen v. Lower Niobrara Nat. Resources Dist., 221 Neb. 180,376 N. W.2d 539 (1985)

Sporhase v. Nebraska ex rel Douglas, 458 U.S. 941 (1982)

State v.Ewing, 221 Neb. 462, 378 N.W.2d 158 (1985)

State ex rel Cary v. Cochran, 138 Neb. 163, 292, N. W. 239 (1940)

STATUTES

Neb. Rev. Stat. §37-807(3) (Reissue 2004)
Neb. Rev. Stat. §46-209 (Reissue 2004)
Neb. Rev. Stat. §46-233 (Reissue 2004)
Neb. Rev. Stat. §46-226 (Reissue 2004)
Neb. Rev. Stat. §61-205 (Reissue 2003)
Neb. Rev. Stat. §61-206 (Reissue 2003)
Neb. Rev. Stat. §61-206(1) (Reissue 2003)

OTHER

Glennon and Maddock, The Concept of Capture: The Hydrology and Law of Stream/Aquifer Interactions, 43 Rocky Mt. Min. L. Inst. (1997)
Neb. Const. Art.I; sec. 21
Neb. Const. Art. XV, sec. 4, 5 & 6
Neb. Const. Art. XV, sec. 5
Neb. Const. Art. XV, sec. 6

STATEMENT OF THE BASIS OF JURISDICTION OF THE SUPREME COURT

The Brief filed on behalf of the Nebraska Department of Natural Resources (Department or DNR) accepts the Appellant's statement of the basis of jurisdiction of the Supreme Court.

STATEMENT OF THE CASE

I. NATURE OF THE CASE

There is an error in the "Nature of the Case" section of the Appellant's Brief. The Brief refers to the Department's Order as being at pages 8-10 of the Transcript. In actuality, the Order appears at pages 172-174 of the Transcript. The Department's Brief accepts the Appellant's statement regarding the nature of the case, with the exception of whether the Department has jurisdiction to grant the relief sought by the Appellant. The Appellant reasserts its statement of the nature of the case.

II. ISSUES ACTUALLY TRIED BELOW

The Appellant reasserts its statement of the issues actually tried in the agency below.

III. DISPOSITION OF THE ISSUES

The Appellant reasserts its statement of the disposition of the issues.

IV. SCOPE OF REVIEW

The Appellant reasserts its statement of the scope of review.

PROPOSITIONS OF LAW

I. The right to use water of streams in Nebraska is based on priority of appropriation. Neb. Const. Art. XV: sec. 6.

II. On summary dismissal, allegations of a complaint before an administrative agency must be taken as true. Parks v Holy Angels Church, Galyen v. Balka, 253 Neb. 270, 570 N.W.2d 519 (1997).

III. To obtain an appropriation, an applicant must file for a permit, and meet detailed and specific standards. Neb. Rev. Stat. §§46-233 et seq. (Reissue 2004).

IV. The Department of Natural Resources has jurisdiction over all matters pertaining to water rights. Neb. Rev. Stat. §61-206 (Reissue 2003).

V. A stream is a combination of water from three sources: tributary inflow; ground water accretion and precipitation falling directly on the stream. Glennon and Maddock, The Concept of Capture: The Hydrology and Law of Stream/Aquifer Interactions, 43 Rocky Mt. Min. L. Inst. (1997).

VI. The Department of Natural Resources has jurisdiction relative to all matters concerning water rights, except as specifically limited by statute. Neb. Rev. Stat. §61-206(1) (Reissue 2003).

VII. The Department of Natural Resources shall make proper arrangements for the determination of priorities of right to use the public waters of the state and determine the same. The method of determining the priority and amount of appropriation shall be fixed by the Department. Neb. Rev. Stat. §46-226 ( Reissue 2004).

VIII. All the waters of the State of Nebraska are public. Neb. Const. Art. XV, sec. 5.

IX. Neb. Canst. Art. XV, secs. 4, 5 & 6 grant constitutional protection to the doctrine of prior appropriation. In re Appl. A-16642, 236 Neb. 671,463 N.W.2d 591 (1990).

X. The doctrine of prior appropriation fosters development. In re Appl. A-16642, 236 Neb. 671, 463 N.W.2d 591 (1990).

XI. The Nebraska Constitution protects senior uses in times of shortage. In re Appl. A-16642, 236 Neb. 671, 463 N. W.2d 591 (1990); Neb. Const. Art. XV; sec. 6.

XII. Constitutional provisions should receive a broad and liberal interpretation. In re Appl. A- 16642,236 Neb. 671,463 N. W.2d 591 (1990); Nebr. P.P. Dist. v. Hershey School Dist., 207 Neb. 412, 299 N. W.2d 514 (1980).

XIII. The meaning of a statute is a question of law. In re Appl. A-16642, 236 Neb. 671,463 N.W.2d 591 (1990); State v. Ewing, 221 Neb. 462, 378 N.W.2d 158 (1985).

XIV. The Nebraska Supreme Court is obligated to reach conclusions on questions of constitutional and statutory interpretation independent of the determination made by an administrative agency. In re Appl. A-16642, 236 Neb. 671, 463 N.W.2d 591 (1990); Hillcrest Country Club v. N.D. Judds Co., 236 Neb. 233, 461 N. W.2d 55 (1990).

XV. To construe a statute the Court must look to its purpose and give the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it. In reAppl. A-16642, 236 Neb. 671, 463 N.W.2d 591 (1990); Nuzum v. Board of Ed. of Sch. Dist. of Arnold, 227 Neb. 387, 417 N. W.2d 779 (1988).

XVI. Administrative bodies have only that authority specifically conferred upon them by statute or by construction necessary to achieve the purpose of the relevant act. In re Appl. A -16642, 236 Neb. 671,463 N. W.2d 591 (1990); Nape v. Game & Parks Comm., 220 Neb. 883,374 N.W.2d 46 (1985).

XVII. The Department of Natural Resources is given broad authority over the appropriation and use of water in Nebraska. In re Appl. A-16642, 236 Neb. 671,463 N. W.2d 591 (1990); In re Appl. U-2, 226 Neb. 594,413 N. W.2d 290 (1987); Neb. Rev. Stat. §46-209 (Reissue 2004).

XVIII. Ground water is owned by the public and the only right held by an overlying landowner is in the use of the ground water. Bamford v. Upper Republican Nat. Resources Dist., 245 Neb. 299,512 N. W.2d 642 (1994).

XIX. The owner of land is entitled to appropriate subterranean waters found under his land, but he cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land which he owns, except if such use is injurious to others who have substantial rights to the water, and if the natural underground supply is insufficient for all owners, each is entitled to a reasonable proportion of the whole. Olson v. City of Wahoo, 124 Neb. 802, 248 N.W. 304 (1933).

XX. Ground water use depletes streamflow. State ex rel Cary v. Cochran, 138 Neb. 163,292, N.W. 239 (1940).

XXI. The Department of Natural Resources is given jurisdiction over all matters pertaining to water rights for irrigation. Neb. Rev. Stat. §61-206 (Reissue 2003).

XXII. The Department of Natural Resources shall determine the right to use the public waters of the state, and determine the priority. The method of determining priority and amount of appropriation shall be fixed by the Department. Neb. Rev. Stat. §46-226 (Reissue 2004).

ARGUMENT

INTRODUCTION

Surprisingly, Nebraska's Attorney General takes the position in the Brief filed on behalf of the Department that the Nebraska Constitution should be ignored. The Attorney General advocates retaining a dual system of regulation of water in Nebraska which ignores hydrologic reality. This approach destroys the protection for appropriators mandated by the Nebraska Constitution.

The Attorney General also reads a multitude of conclusions into Central's Amended Complaint which are not present in the document:

Notwithstanding Central's prayer for relief, what is it that Central really wants. (sic). Central wants all ground water irrigation in the State of Nebraska to be placed under the prior appropriation system. Central wants all ground water irrigations (sic) wells to be regulated by the Department, not the Natural Resource Districts ("NRDs"). Central wants the Department to declare that ground water irrigation wells are junior to surface water appropriations in the State. Central wants junior ground water irrigation wells to be shut off for the benefit of senior surface water appropriators. Finally, Central wants to obtain through judicial ruling what it has not received by legislative action. Central wants to have current water law and policies, as enacted by the Legislature pursuant to the Groundwater Management and Protection Act, LB 108, and LB 962, declared null and void.
Appelle's Brief, p. 5

Central doesn't want all ground water irrigation in Nebraska to be placed under the prior appropriation system. Central seeks only the protection of its appropriations. The Nebraska Constitution provides that the right to use of water of streams is based on priority of appropriation. Neb. Const. Art. XV; sec. 6. Central asked the Department, and now asks this Court, to decide that the Constitution should be enforced; that is, that the Department has jurisdiction to grant the relief requested, that unpermitted diversions of streamflow be ended.

Central doesn't want all ground water irrigation wells to be regulated by the Department. Central wants its appropriations to be protected against unpermitted diversions. Streamflow is being diverted by thousands of users without permits. This allegation of Central's Amended Complaint must be taken as fact. Parks v. Holy Angels Church, 160 Neb. 299, 70 N. W .2d 97 (1955); Galyen v. Balka, 253 Neb. 270, 570 N.W.2d 519 (1997).

Central doesn't want the Department to declare that ground water irrigation wells are junior to surface water appropriations. Central wants those now diverting streamflow without permits to be ordered to end their illegal diversions.

Central doesn't want only junior ground water irrigation wells to be shut off for the benefit of senior surface water appropriators. Central wants all unpermitted diversions to be ended. The Nebraska Constitution mandates that priority of appropriation determines the right to use of streamflow. The statutes require that an applicant seeking an appropriation meet detailed and specific standards to obtain a permit. Neb. Rev. Stat. §§46-233 et seq. (Reissue 2004) The applicant must consult with the Nebraska Game and Parks Commission concerning the effect of an appropriation on threatened and endangered species. Neb. Rev. Stat. §37-807(3) (Reissue 2004). Central has alleged, an allegation uncontroverted on this record, that there are diversions of streamflow which are not in compliance with the statutory framework which implements the constitutional provision, that is, unpermitted diversions. The unpermitted diversions are in violation of the law. Central wants the unpermitted diversions ended.

Central doesn't want this Court to substitute it's judgment for that of the Legislature. Central wants this Court to protect the constitutional mandate that priority of appropriation be the determinative factor in deciding the use of water in time of shortage. Legislation in place already provides the means by which the constitutional provision has been enabled. The statutory scheme requires a permit to divert streamflow. Neb. Rev. Stat. §§46-233 et seq. (Reissue 2004) There are many unpermitted diversions upstream of Central's point of diversion. (T87 -169, 98) The Director of the Department has jurisdiction to adjudicate the rights of all those diverting streamflow. This Court should reverse the Department's decision and return the Amended Complaint with directions. The Department should be directed to carry out the responsibility delegated by the Legislature, that is, adjudicate competing claims to streamflow, and prohibit unpermitted diversions.

Central doesn't want "current water law and policies" to be declared "null and void". Central wants the Court to protect the constitutional mandate by remanding this cause to the Department to be decided in accord with the Constitution and the statutes. LB108 and LB962 provide a variety of methods of remedying or preventing future conflicts, and methods for resolving current disputes among competing groundwater users, but don't address the constitutional protection afforded appropriators, and don't provide for a means of ending unpermitted diversions of streamflow. Existing law, prior to the enactment of LB108 and LB962, provided for the Department's exercise of jurisdiction to prevent unpermitted diversions of streamflow.

I. THE DEPARTMENT OF NATURAL RESOURCES HAS JURISDICTION TO REGULATE UNPERMITTED DIVERSIONS TO PROTECT STREAMFLOW.

"The right to divert unappropriated waters of every natural stream for beneficial use shall never be denied except when such denial is demanded by the public interest. Priority of appropriation shall give the better right as between those using water for the same purpose. . ." Neb. Const. Art. XV, sec. 6

The Attorney General's brief argues that this provision of the Nebraska Constitution should be ignored, because, according to the Attorney General, "surface water" is legally distinct from "water of a natural stream". Appellee's Brief, pp. 6-8. No such distinction is made by the Constitution, the legislative delegation of authority to the Department with regard to the regulation of the waters of the state, or the case law. On the contrary, the statutory basis for regulation is a broad, general grant of authority to the Department over "all matters pertaining to water rights" Neb. Rev. Stat. §61-206 (Reissue 2003).

The Attorney General's brief argues that a natural stream is surface water, and that only surface water is subject to appropriation under the prior appropriation system. Appellee's Brief, p. 7. This is simply not true. A stream is a combination of water from three sources: tributary inflow; ground water accretion and precipitation falling directly on the stream. Glennon and Maddock, The Concept of Capture: The Hydrology and Law of Stream/Aquifer Interactions, 43 Rocky Mt. Min. L. Inst. (1997). To assert that an artificial distinction between surface water and streamflow should permit unfettered ground water withdrawals to dry up the rivers and streams of Nebraska is essentially the same as asserting that tributaries don't contribute to streamflow, and, therefore, should not be subject to regulation for protection of holders of water rights on the mainstem.

The legislative grant of authority to the Department is broad and general. The Department's jurisdiction relates to "all matters", "except as specifically limited by statute". Neb. Rev. Stat. §61- 206(1) (Reissue 2003). There is no specific limitation on the Department's authority with regard to use of the public waters of the state. The statute provides the most general of authorities: "The. Department shall make proper arrangements for the determination of priorities of right to use the public waters of the state and determine the same. The method of determining the priority and amount of appropriation shall be fixed by the Department." Neb. Rev. Stat. §46-226 (Reissue 2004). All the waters of the State of Nebraska are public: "The use of the water of every natural stream within the State of Nebraska is hereby dedicated to the people of the state for beneficial purposes, . . ." Neb. Canst. Art. XV; sec. 5.

The Attorney General goes on to argue that the Legislature has delegated authority to regulate surface water to the Department of Natural Resources. Appellee 's Brief, pp. 8-13. The Attorney General's argument is true, except that it perpetuates an artificial distinction between ground water and surface water, which has no application in this context. The brief asserts that In re Application A-I 6642, 236 Neb. 671,463 N.W.2d 591 (1990) holds that the Department has only the authority the Legislature has specifically conferred upon it. Appellee 's Brief, pp. 8-9. In actuality, In re Application A-I 6642 holds: "We have long recognized that §§4, 5 and 6 [Neb. Const. Art. XV, secs. 4, 5 and 6] grant constitutional protection to the doctrine of prior appropriation. (citation omitted)"; and:

prior to the adoption of the appropriation system, water rights in Nebraska were governed by the common-law system of riparian rights. Under the riparian system, only those landowners whose property is adjacent to a body of water have a right to use that water. The rights of all riparians along a given body of water are equal, regardless of when they began using the water. Riparian proprietors could not divert significant flows out of the natural channel of a stream without returning that water to the channel, nor could they apply that water to non-riparian lands (citations omitted). While this doctrine was well suited to 'England's green and pleasant land' where ample rains watered crops and most uses were non-consumptive, it soon became apparent to settlers that pure riparianism would hinder development in the more arid regions of the American West. (citations omitted) Nebraska responded to this 'natural want' of water by adopting the doctrine of prior appropriation.

and:

the attributes of the appropriative doctrine which distinguish it from riparianism are its focus on the application of the water to a beneficial use, rather than on the ownership of riparian land, and its use of a first-in-time, first-in-right approach to conflicts between users, as opposed to the riparian system's equality among riparians. The appropriative system permits water use on lands where the riparian system would deny it and protects senior, more established water uses in times of shortage. Adoption of the appropriative system permitted the acquisition of a right to the beneficial use of water based on the seniority of the use, independent of the riparian or non-riparian nature of the land.

The A-16642 Court also held: " . . . Constitutional provisions should receive a broad and liberal interpretation." (citing Neb. P. P. Dist. v. Hershey School Dist., 207 Neb. 412, 299N.W.2d 514 (1980)) and:

The meaning of a statute is a question of law, State v. Ewing, 221 Neb. 462, 378 N..W.2d 158 (1985), and this court is obligated to reach its conclusions on such questions independent of the determination made by an administrative agency, See Hillcrest Country Club v. N.D. Judds Co., Ante. P. 233,461 N.W.2d 55 (1990);

and:

In order to construe [a] statute, we must look to its purpose and give the statute a reasonable construction which best achieves that purpose, rather than a construction which would defeat it. See Nuzum v. Board of Ed. Of Sch. Dist. of Arnold, 227 Neb. 387,417 N.W.2d 779 (1988);

and:

. . . administrative bodies have only that authority specifically conferred upon them by statute or by construction necessary to achieve the purpose of the relevant act. Nape v. Game & Parks Comm., 220 Neb. 883,374 N.W.2d 46 (1985). We also note that the Director and the Department of Water Resources [predecessor of the Department] are given broad authority over the appropriation and use of water in Nebraska. See, In re Appl. U-2, 226 Neb. 594, 413 N. W.2d 290 (1987); Neb. Rev. Stat. §46-209 (Reissue 1988).

The A-16642 Court made clear that the rules of statutory construction, when applied in the present case, would cause one to conclude that when the Legislature said that the Department is given jurisdiction over all matters pertaining to water rights for irrigation, Neb. Rev. Stat. §46-226 (Cum. Supp. 2002), it meant that the Department could prevent unpermitted diversions, and could order any unpermitted diversions to end.

The Attorney General continues his argument by asserting that Neb. Rev. Stat. § §61-205, 61-206 (Reissue 2003) provide that the Department may only regulate surface water. Appellee's Brief, p. 8. In actuality, the statutes provide:

The Department of Natural Resources shall exercise the powers and perform the duties assigned to the Department of Water Resources prior to July 1, 2000. The Department of Natural Resources shall exercise the powers and perform the duties assigned to the Nebraska Natural Resources Commission prior to July 1, 2000, except as otherwise specifically provided.

The Director of Natural Resources and his or her duly authorized assistants shall have access at all reasonable times to all dams, reservoirs, hydro-electric plants, and headgates, and other devices for diverting water, for the purpose of performing the duties assigned to the department. Neb. Rev. Stat. §61-205 (Reissue 2003).

(1) The Department of Natural Resources is given jurisdiction over all matters pertaining to water rights for irrigation, power, or other useful purposes except as such jurisdiction is specifically limited by statute. Such department shall adopt and promulgate rules and regulations governing matters coming before it. It may refuse to allow any water to be used by claimants until their rights have been determined and made of record. . . .
Neb. Rev. Stat. §61-206 (Reissue 2003)

As is evident from the language of the sections, they make no distinction between "surface water" and "ground water". Section 61-206 is general in nature, relating to "water rights for irrigation . . ."

The Attorney General's argument continues with the assertion: "When the water laws of this state were passed, they related to surface water and surface water appropriations only." Appellee's Brief, p. 8. There is no citation of authority for this assertion. Obviously, because there is no authority for this assertion. The question, whether the Department has jurisdiction to regulate unpermitted diversions, without regard to the location of the diversion, has not been decided by this Court. The Court's opinion in this case may resolve the issue, but it has not been resolved by the Legislature.

The Attorney General's brief continues by arguing that " . . . this Court and the Legislature have determined that the right to use ground water derives from ownership of the overlying land." Appellee's Brief p. 9. The Attorney General's brief cites Bamford v. Upper Republican Nat. Resources Dist., 245 Neb. 299, 512 N.W.2d 642 (1994) and Olson v. City of Wahoo, 124 Neb. 802, 248 N. W. 304 (1933) for this proposition. Appellee's Brief, p. 9.

In actuality, Bamford holds:

The appellants contend that the District Court erred in denying them the right to use water underlying their land when evidence failed to show that the underground water supply was insufficient for all other water users. This contention is apparently based on Nebraska's common law of ground water, i.e.: 'the owner of land is entitled to appropriate subterranean waters found under his land, but . . . if the natural underground supply is insufficient for all owners, each is entitled to a reasonable proportion of the whole. . .' Sorensen v. Lower Niobrara Nat. Resources Dist., 221 Neb. 180, 376 N. W .2d 539 (1985).

The question in Bamford was not whether prior appropriation applied to surface water and not ground water, but whether the Ground Water Management and Protection Act was a permissible delegation of authority to the Department which permitted limitation of withdrawals on ground water users for purposes of sharing shortages among all ground water users taking from the same supply. Among other observations, the Court cited In re Appl. U-2, 226 Neb. 594,413 N. W.2d 290 (1987), for the proposition that Neb. Rev. Stat. §46-209 gives the Department broad jurisdiction over all matters pertaining to water rights for irrigation.

Interestingly, and contrary to the Attorney General's assertion, Bamford also holds: The appellants attempt to lay a foundation for their takings claim by citing language from Sorensen v. Lower Niobrara Nat. Resources Dist., 221 Neb. 180,376 N. W.2d 539 (1985). In Sorensen, 221 Neb. at 191-92, 376 N. W.2d at 548, this court stated that 'the right of an owner of overlying land to use ground water is an appurtenance constituting property protected by Neb. Const. Art. I, sec. 21: "The property of no person shall be taken or damaged for public use without just compensation therefor.'" However, ground water, as defined in §46-657, is owned by the public, and the only right held by an overlying land owner is in use of the ground water. In re Appl. U-2, supra. Furthermore, placing limitations upon withdrawals of ground water in times of shortage is a proper exercise of the State's police power. See, Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982).

Similarly, the Attorney General's reliance on Olson is also misplaced. The Olson case holds:

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

This is the "modified American rule", adopted by this Court as the standard for determining disputes as between ground water users. Olson has nothing to do with surface water. No surface water user was involved; the court treated the case as a dispute between ground water users. The court expresses no opinion concerning the relative rights of surface water appropriators and ground water users. Arguably, the phrase " . . . others who have substantial rights to the waters . . ." may refer to surface water appropriators, whose appropriations are protected by the Constitution and the statutory and regulatory framework for appropriation. However, this is a stretch. In actuality, Olson is only limited to the enunciation of the American rule, as modified, as the method for determination of the rights of one ground of water user against another.

The Attorney General next argues that the Department should be given deference in interpreting its own statutes and regulations. Appellee's Brief, pp. 9-10. While this may be true with regard to a statute prescribing a methodology for carrying out legislative intent, or a regulation drafted by an agency for purposes of regulating a technical field, the argument has no application here. As indicated above, constitutional provisions should receive a broad and liberal interpretation, the meaning of a statute is a question of law, and the Court is obligated to reach conclusions regarding the meaning of the Constitution and statutes independent of the determination of an administrative agency. In re Appl. A-16642, 236 Neb. 671,463 N. W.2d 591 (1990).

After a review of the legislation concerning appropriation applications and their effect, the Attorney General next asserts that the Legislature has not delegated authority to the Department to regulate ground water use according to a system of priorities. Appellee's Brief, p. 10. This argument misinterprets the nature of the rules of statutory construction, insofar as they apply to the authority of the Department. As pointed out above, Neb. Rev. Stat. §61-206(l) (Reissue 2003) provides that the Department has jurisdiction over all matters pertaining to water rights " . . . except as such jurisdiction is specifically limited by statute." There is no limitation in the statutory framework which prevents the Department from ordering that unpermitted diversions cease. On the contrary, the statutory framework, which executes the constitutional priority mandate, specifically authorizes the Department to take the action required to end unpermitted diversions. Neb. Rev. Stat. §61-206(l) (Reissue 2003): "It [the Department] may refuse to allow any water to be used by claimants until their rights have been determined and made of record."

The Attorney General next argues that appropriations " . . . were created by statutory and constitutional provisions and the extent of the rights are therefore limited to those enactments." Appellee's Brief, p. 11. Drainage Dist. No.1 of Lincoln County v. Suburban Irr. Dist., 139, Neb. 460, 298 N. W. 131 (1941) is cited for that proposition. This Court described the issue in Drainage Dist. No.1 as follows:

As presented at the bar of this court, the second and controlling question in this case is, does the irrigation district have the right of eminent domain to place obstructions and dams in plaintiff s drainage ditches, where they were not contemplated in the original plan of construction, and from what source and how does the irrigation district become vested with power to use and appropriate the water out of such drainage ditches?

The Court went on to hold that drainage ditches, constructed to drain ground too wet to farm, are not "natural streams" subject to appropriation, and, therefore, not subject to eminent domain. The case does not stand for the proposition that this Court has decided that ground water is excluded from the constitutional priority mandate.

The Attorney General's argument continues with a comparison and analysis of Drainage Dist. No.1 and Olson, and concludes that this Court must overrule Olson in order to find that the Department has authority to carry out the constitutional mandate protecting the prior appropriation system. Appellee's Brief, pp. 11-13. As pointed out above, Olson was treated by the Court as a dispute between ground water users, established a "sharing of shortage" rule for competing ground water users, and has nothing to do with the question of whether the constitutional mandate must be followed by the Department in order to prevent Lake McConaughy from being ruined by unpermitted diversions.

The Attorney General follows this argument with the proposition that there is "no common law duty imposed on the Department to protect surface water appropriators from ground water users." Appellee's Brief, p. 13. Central agrees. It is not a common law duty that Central seeks to enforce. Central seeks to prevent the continuing illegal, unpermitted diversions which are specified in Central's Amended Complaint. Central, and all other appropriators, are afforded the protection of the Nebraska Constitution, and the statutory scheme which carries the constitutional priority mandate to execution. This is not a case involving a common law duty. This is a case in which a protection afforded by the Nebraska Constitution to those who comply with the law needs to be protected. This Court should see to it that protection is provided to those who have complied with the statutory scheme, obtained an appropriation and are assured by the Constitution of priority.

The Attorney General concludes this section of his argument by asserting that the Legislature is the branch of the government vested with the authority to create and enforce water policy. Appellee's Brief, pp. 13-14. The Legislature cannot ignore the Constitution. The Constitution provides that priority of appropriation determines the better right as between those using water for the same purpose. Simply because the Legislature has ignored the constitutional mandate with regard to some of the enactments concerning the regulation of ground water by Natural Resources Districts does not mean that this Court may ignore reality. Pumping from gravel in hydrologic connection with a stream is the same as pumping from the stream. This Court is not asked to create a common law duty in contravention of legislative policy. This Court is asked to order that the Department carry out its statutorily confirmed and constitutionally mandated obligation to protect priority of appropriation.

ll. THE AUTHORITY OF NATURAL RESOURCES DISTRICTS TO REGULATE GROUND WATER IS NOT RELEVANT TO THE ISSUE IN THIS APPEAL.

The next section of the Attorney General's brief is devoted to the proposition that Natural Resources Districts (NRDs) are authorized to regulate ground water in Nebraska. Appellee's Brief, pp. 14-16. Central agrees. However, none of this discussion is relevant to the question presented by this appeal. Whether NRDs have authority to take action concerning current or prospective disputes among ground water users has no relation to the issue of whether the Department must follow the constitutional mandate and the statutory system which executes the mandate.

However, the Attorney General concludes the discussion of the statutory responsibilities of the NRDs and the Department, in part, with the following:

. . . the only way that the Department could be responsible for failing to protect a surface water appropriator against a ground water irrigator is if the Legislature determines that ground water and surface water should be managed as one and the same. Appellee's Brief, p. 16.

There is no citation of authority for this proposition. The discussion of the statutory framework governing NRD regulation of ground water has no relationship to this conclusion. Whether the Legislature makes some determination with regard to the relationship of ground water and surface water is simply not relevant to the issue presented by this appeal. The existing statutory framework gives the Department the authority to regulate all waters of the State, and the framework executes the constitutional mandate requiring priority of appropriation to determine the better right as between users of water for irrigation.

III. THE NEBRASKA CONSTITUTION IS THE SUPREME LAW OF THE STATE.

The Attorney General argues that the Legislature is responsible for the declaration of public policy. Appellee's Brief, p. 16. In general terms, this is true. However, the Legislature cannot ignore the Constitution. The Attorney General asserts the use of the phrase "natural stream" limits the constitutional protection of priority of appropriation to surface water. However, there is nothing in the Constitution, or the statutory framework executing it, which supports this distinction. The Attorney General asserts: " . . . when the water laws of this State were first adopted, they related to surface water and surface water appropriations only." Appellee's Brief, p. 18. There is no statutory or constitutional basis for this assertion. One can speculate at length about the knowledge of the Legislature at any given time. However, this Court recognized the effect of ground water use on streamflow as early as 1940. State ex rei Cary v. Cochran, 138 Neb. 163,292, N.W.239 (1940).

The Attorney General next asserts that the change to prior appropriation from riparinism "only altered the manner in which surface water rights were administered". Appellee's Brief, p. 18. This is simply wrong. The adoption of prior appropriation made projects like Central's possible. Without an ability to accurately measure demands on streamflow, it was not possible to accurately analyze a hydrograph for purposes of designing a reservoir, and thus not possible to design and construct significant public works projects which rely upon water for irrigation, hydro-power production, recreation and environmental protection and enhancement. All of these uses are now threatened because unpermitted diversions continue to deplete the supply of streamflow upon which Central depends. The public's investment of hundreds of millions of dollars in the Central project, premised upon the constitutional mandate of prior appropriation and the statutory framework which executes the constitutional mandate, is at grave risk. The astronomical proliferation of unpermitted diversions of streamflow depletes the source of supply, and has caused, in part, Lake McConaughy to reach its lowest level in history.

The Attorney General would have this Court adopt the view that Neb. Const. Art. XV; sec. 6 applies to surface water only. There is no basis in law in Nebraska for such an assertion. This Court has not previously held that Neb. Const. Art. XV, sec. 6 applies to surface water only. This Court has not previously held that natural streams include only surface water entering streams. This Court has not previously held that tributary ground water is not a part of streamflow. This Court has not previously held that there is no basis for regulation of unpermitted diversions of ground water for purposes of protecting streamflow. Adoption of the theory advocated by the Attorney General, and a continuation of a dual system for regulation of water, based only on the physical location of the water, is laughable. It ignores hydrologic reality. It ignores the simplest science. See, Glennon and Maddock, supra. It sacrifices streams, and all the myriad life forms dependent upon them, including people, at the expense of a meaningless legal fiction. Worst, however, it ignores the Nebraska Constitution and the statutory scheme that executes the constitutional mandate in favor of prior appropriation. The Attorney General cites some interesting language from a statement of intent of a legislator regarding a 1957 statute, which purports to assert that the Constitution doesn't apply to underground water. Appellee's Brief, p. 19. Unfortunately, the legislator had no basis at all for such an assertion, just as the Attorney General has no basis in law for the same assertion now.

The Attorney General next includes a discussion of LB108, and concludes that NRDs have responsibility for resolving conflicts between appropriators and those making unpermitted diversions. However, this relates again to the problem with legislative enactments which ignore the Constitution. Simply because the Legislature ignores the Constitution with respect to limited issues involving water policy does not mean that this Court should ignore the Constitution and retain some nonsensical legal fiction which has no relation to reality.

The Attorney General concludes this section of his argument with the assertion: "It is clear that the Legislature has not granted authority for the Department to regulate ground water uses." Appellee's Brief, p. 22. Central does not contend that the Department must have specific authority to regulate ground water uses in order to take the action necessary to protect the constitutional mandate of priority of appropriation. On the contrary, the necessary authority is specifically granted to the Department by Neb. Rev. Stat. §61-206 (Reissue 2003): "(1) The Department of Natural Resources is given jurisdiction over all matters pertaining to water rights for irrigation . . ." and by Neb. Rev. Stat. §46-226 (Reissue 2004): "The Department shall make proper arrangements for the determination of priorities of right to use the public waters of the state and determine the same. The method of determining the priority and amount of appropriation shall be fixed by the Department."

IV. THE DECISIONS OF THE UNITED STATES SUPREME COURT REFLECT THE MODERN VIEW THAT WATER RIGHTS MUST BE PROTECTED FROM UNPERMITTED DIVERSIONS, REGARDLESS OF THE METHOD OF DIVERSION.

The Appellant's brief includes a section concerning the holdings of the United States Supreme Court concerning the relationship between tributary ground water and streamflow. Appellee's Brief, pp. 22 et seq. The Attorney General (at page 22) concludes that this discussion is not relevant to Nebraska's "water law structure."

As indicated in the Appellant's brief, the discussion regarding the United States Supreme Court's holdings was limited to the assertion made in the brief: the common law of the United States is clear, surface water and hydrologically connected ground water are one resource. The Appellant's brief does not argue that the United States Supreme Court's jurisprudence is necessarily binding on this Court, or should dictate that this Court adopt the common law of the United States. However, to ignore the holdings of the United States Supreme Court, which are clear with respect to the relationship between surface water and hydrologically connected ground water, would be foolhardy. The United States Supreme Court has been deciding cases which relate to this issue at least since Arizona v. California, 376 U.S. 340 (1964) and has consistently held that surface water and hydrologically connected ground water are one resource. The Court long ago chose to ignore any legal fiction dividing "surface water" from "ground water" as being relevant to protection of rights to streamflows. This is true not only of interstate compacts, but also decrees apportioning interstate streams.

Interestingly, the Attorney General, in this same section of his brief, asserts: "The Department is not arguing that some ground water wells are not hydrologically connected to surface water flows. Nor is the Department denying that hydrologically connected ground water wells can cause depletions to streamflow." Given the tenor of everything preceding these statements in the Attorney General's brief, the admissions are surprising. The Attorney General next says: "The Department is simply stating that the Department does not have jurisdiction or authority, pursuant to Nebraska law, to regulate hydrologically connected ground water wells for the benefit of surface water appropriators." This position crystalizes the issue which this Court must decide. This is an issue of first impression for the Court, and this Court must thus decide whether to protect the prior appropriation system which is enshrined in the Nebraska Constitution and executed by the statutory sections cited above.

The Appellant's argument is not one of theory or opinion. The Appellant's argument is based upon the constitutional provision and the statutory scheme which executes it. The Legislature doesn't have discretion to determine policy, insofar as the Constitution is concerned. The people of the state have spoken, through the adoption of Art. XV, §6. The Legislature has given effect to the constitutional mandate by authorizing the Department to take actions necessary with regard the protection of priority of appropriation. All that need happen now is that this Court remand the case to the Department for action; the action being to order the unpermitted diversions to end.

The Attorney General next argues that Professor Harnsberger was right when he asserted: "Courts have neither the staff or the expertise to formulate a scientifically sound water plan, and they have relatively few methods of initiating procedures to assure effective development or management." Harnsberger was correct. However, as pointed out in the Appellant's brief, the Department has the staff, the expertise, and the procedure in place for purposes of conducting the necessary determination with respect to protection of the constitutional mandate.

CONCLUSION

For the foregoing reasons, the decision of the Department should be reversed, and the cause remanded for further proceedings.

DATED this 30th day of December, 2004.

Respectfully submitted,
THE CENTRAL NEBRASKA PUBLIC POWER AND IRRIGATION DISTRICT, Appellant
By:
Michael C. Klein #15428
Anderson, Klein, Swan & Brewster
417 East Avenue, P.O. Box 133
Holdrege, NE 68949-0133
Phone (308) 995-4458
Attorneys for Appellant