Case No. A-04-000836 -- MOTION TO DISMISS FOR LACK OF JURISDICTION

CENTRAL NEBRASKA PUBLIC POWER AND IRRIGATION DISTRICT
Appellant,
v.
IRRIGATION WELL OWNERS / PLATTE RIVER and PLATTE RIVER WATERSHED,
Appellees.

Comes now the Nebraska Groundwater Management Coalition and hereby moves this court to dismiss Central Nebraska Public Power and Irrigation District's appeal as this Court lacks jurisdiction over the case because a final order has not been issued by the Nebraska Department of Natural Resources.

Respectfully submitted this 12th day of August, 2004.

NEBRASKA GROUNDWATER MANAGEMENT COALITION
Donald G. Blankenau, #18528
FENNEMORE CRAIG, P.C.
1221 N Street, Suite 801
Lincoln,NE 68508-2028
Telephone: (402) 323-6200

CASE NO. A-04-000836
IN THE COURT OF APPEALS FOR THE STATE OF NEBRASKA

CENTRAL NEBRASKA PUBLIC POWER AND IRRIGATION DISTRICT,
Appellant,

vs.

IRRIGATION WELL OWNERS/PLATTE RIVER and PLATTE RIVER WATERSHED,
Appellees.

APPEAL FROM THE NEBRASKA DEPARTMENT OF NATURAL RESOURCES

BRIEF IN SUPPORT OF MOTION TO DISMISS FOR LACK OF JURISDICTION

Donald G. Blankenau
Nebraska Bar No. 18528
FENNEMORE CRAIG, P .C.
1221 N Street, Suite 801
Lincoln, NE 68508
Telephone: 402-323-6200
dblankenau@fclaw.com
Attorney for Intervenor-Defendant/Appellee

BRIEF IN SUPPORT OF MOTION TO DISMISS FOR LACK OF JURISDICTION

BACKGROUND

On or about June 9, 2003, the Central Nebraska Public Power and Irrigation District ("CNPPID") filed a "Complaint Against Unpermitted Diversions" ("Complaint") with the Department of Natural Resources ("DNR"). The Complaint requested DNR to (1) issue an order to all persons with registered irrigation wells upstream of CNPPID's Diversion Dam to cease diversions of ground water; and (2) find that certain ground water is subject to the prior appropriation doctrine that governs the use of surface waters pursuant to Neb. Const. Art. XV, § 6.

On July 1,2004, without any notice or hearing, DNR issued an order denying CNPPID's Complaint. This occurred despite assurances from DNR that "interested parties," including the Nebraska Groundwater Management Coalition ("Coalition"), would have an opportunity to intervene before DNR ruled on the Complaint. See Declaration of Donald G. Blankenau in Support of Motion to Intervene and Petition for Hearing, ¶ 2, attached hereto as Exhibit "A" and fully incorporated herein. On July 12, 2004, the Coalition filed with DNR a Motion to Intervene and a Petition for Hearing pursuant to Neb. Rev. Stat. S 61-206 (Reissue 2000). On July 15, 2004, CNPPID filed a Notice of Appeal.

STANDARD OF REVIEW

Where a jurisdictional question does not involve a factual dispute, its determination is a matter of law, which requires an appellate court to reach a conclusion independent from the decisions made by the lower courts. City of Lincoln v. Twin Platte Natural Resources District, 250 Neb. 452, 453, 551 N. W .2d 6, 8 (1996) ("Twin Platte").

ARGUMENT

I. THE APPELLATE COURT LACKS JURISDICTION BECAUSE THERE IS NO FINAL APPEALABLE ORDER

"For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the tribunal from which the appeal is taken. Conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders." Twin Platte, 250 Neb. at 456. See also Central Nebraska Conservation Ass'n, Inc. v. City of Fremont, 240 Neb. 117, 125 (1992) (an appellate court "does not have jurisdiction to consider appeals from nonfinal orders").

Although an administrative agency has the power to reconsider its own final decisions, this power exists only until the aggrieved party files an appeal or the statutory appeal time has expired. Twin Platte, 250 Neb. at 455-56. However, at issue here is not a motion to reconsider, but rather a motion for a hearing. See Id. at 455 (if there has "been no initial hearing, the motion for a hearing pursuant to § 46-209 [now codified as § 61-206] cannot be considered one for rehearing"). When an order is issued by DNR without a hearing, and subsequently a hearing is requested under Neb. Rev. Stat. 1§ 61-206, the order does not become an effective fmal order and thus is not appealable. Twin Platte, 250 Neb. at 454.

Neb. Rev. Stat. § 61-206 requires DNR to hold a hearing on all complaints. The statute provides that DNR:

shall have public hearings on complaints, petitions, or applications in connection with [all matters pertaining to water rights for irrigation, power, or other useful purposes]... If a decision is made without a hearing, a hearing shall be held at the request of any party to the proceeding if the request is made within fifteen days after the decision is rendered. If a hearing is held at the request of one or more parties, the department may require each such requesting party and each person who requests to be made a party to such hearing to pay the proportional share of the cost of such transcript. Upon any hearing, the department shall receive any evidence relevant to the matter under investigation... After such hearing and investigation, the department shall render a decision in the premises in writing and shall issue such order or orders duly certified as it may deem necessary.

In Twin Platte, the City of Lincoln ("City") filed an application with DNR for a permit to appropriate public waters from the Platte River to induce the recharge of the ground water at the City's well field near Ashland, Nebraska. Id. at 453. Twin Platte Natural Resources District ("NRD") filed as an objector to the City's application. The City subsequently filed a motion to remove the NRD as an objector, and this motion was granted by DNR without a hearing. Id. Pursuant to Neb. Rev. Stat. § 46-209 (now codified as § 61-206), the NRD filed a motion for a hearing on the issue. As required by the statute, a hearing was held, but DNR failed to make a ruling after the hearing. Subsequently, the NRD appealed. The Nebraska Supreme Court dismissed the action, finding that it lacked jurisdiction because once the motion for hearing was filed the 30 day appeal time set by Neb. Rev. Stat. 1§ 46-210 (now codified as § 61-207) was tolled. Id. at 454. As such, the original order could not become an effective final order, depriving the appellate court of jurisdiction. Id. at 456. Without an effective final order, the Supreme Court lacks jurisdiction over an appeal. Id. ("For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the tribunal from which the appeal is taken").

In this case, CNPPID filed a complaint with DNR, and DNR did not have a hearing on the Complaint. Rather, it dismissed the Complaint sua sponte. Neither the Coalition nor CNPPID had an opportunity to be heard on the issues set forth in the Complaint, as required by Neb. Rev. Stat. § 61-206. Although it appears under the statute that certain orders are not to be issued without a hearing (the DNR "shall have public hearings on complaints" id), the statute provides a remedy should DNR issue an order without a hearing. This remedy provides that if a request for a hearing is made within fifteen days after the order, a hearing "shall be held." Id. Once a request for hearing is made, the original order (here the July 1, 2004 order) cannot be a final order because the statutory procedural scheme has not been completed. Twin Platte, 250 Neb. at 256 (where a party "requested a hearing pursuant to the statutory scheme at issue, the [original order] did not become an effective final order").

Accordingly, the appellate court lacks jurisdiction because once the Coalition filed its motion for hearing with DNR, the July 1,2004, Order could not become an effective final order. Furthermore, until DNR holds a hearing and issues an order thereon, there can be no final appealable order. As a consequence, the appellate court lacks jurisdiction to consider this appeal, and the appeal should be dismissed.

Respectfully submitted this 12th day of August, 2004.

NEBRASKA GROUNDWATER MANAGEMENT COALITION
Donald G. Blankenau, #18528
FENNEMORE CRAIG, P .C.
1221 N Street, Suite 801
Lincoln, NE 68508-2028
Telephone: (402) 323-6200

IN THE COURT OF APPEALS FOR THE STATE OF NEBRASKA

Case No. A-04-000836
CERTIFICATE OF SERVICE

CENTRAL NEBRASKA PUBLIC POWER AND IRRIGATION DISTRICT
Appellant,
v.
IRRIGATION WELL OWNERS/PLATTE ) RIVER and PLATTE RIVER WATERSHED,
Appellees.

The undersigned declares that copies of the foregoing Motion to Dismiss for Lack of Jurisdiction and Brief in Support of Motion to Dismiss for Lack of Jurisdiction were sent via First Class United States mail on this 12th day of August, 2004 to the following:

Michael C. Klein
Anderson Klein Peterson and Swan
P.O. Box 133
Holdrege, NE 68949-0133

Don Kraus
Central Nebraska Public Power and Irrigation District
P.O. Box 740
Holdrege, NE 68959-0740

Roger K. Patterson
Ann D. Diers
Department of Natural Resources
P.O. Box 94676
Lincoln, NE 68509-4676

Donald G. Blankenau

STATE OF NEBRASKA
DEPARTMENT OF NATURAL RESOURCES

DECLARATION OF DONALD G. BLANKENAU IN SUPPORT OF MOTION TO INTERVENE AND PETITION FOR HEARING

In the Matter of Central Nebraska Public Power and Irrigation District (CNPPID),
Complainant,

v.

The persons identified as registered Irrigation well owners located in the Platte River watershed as listed in the Department Of Natural Resources' database upstream of CNPPID's Diversion Dam,
Respondents.

I, Donald G. Blankenau, am over 18 years of age and have personal knowledge of the matters contained herein and swear to the following:

1. On or about June 9, 2003, I learned that the Central Platte Public Power and Irrigation District ("CNPPID") filed a document styled as a "Complaint Against Unpermitted Diversions" ("Complaint") with the Nebraska Department of Natural Resources ("DNR"). The Complaint essentially asked that, among other things, the DNR issue an order to all persons with registered irrigation wells upstream of CNPPID' s Diversion Dam, to cease diversions of ground water. The purpose of the Complaint was to seek a legal determination by the DNR as to whether certain ground water is subject to the prior appropriation doctrine that governs the use of surface waters pursuant to Neb. Const. Art. XV, § 6. The ground water at issue in the Complaint is presently being regulated by Nebraska's natural resources districts ("NRDs").

2. During the summer of 2003, I contacted the DNR staff responsible for processing and reviewing applications and complaints to request a copy of the Complaint. I also asked whether interested persons would be allowed to file a motion to intervene in the proceeding at that time. I was provided a copy of the Complaint and advised that the DNR would not accept any requests or motions to intervene at that time. I was also told that I would be placed on a list of "interested parties" and advised of all future filings and notified of an opportunity to intervene before the DNR acted on the Complaint. Since the summer of 2003, I contacted the DNR on numerous occasions to determine the status of the Complaint. In response to those inquires, I was advised by DNR staff that the matter was not scheduled to move forward and that the DNR would not entertain motions to intervene until such time as I was notified.

3. "At no time was I notified by DNR staff: (1) of CNPPID's "Amended Complaint Against Unpermitted Diversions" filed with the DNR on May 3, 2004; (2) that DNR was prepared to accept motions to intervene; and (3) of the "Order Dismissing Complaint For Lack of Jurisdiction To Grant The Relief Requested" ("Order") dated July 1, 2004. I received a copy of the Order only after I learned from other persons that it had been issued and upon my personal request to the DNR.

4. The Order has statewide implications and is likely to be reviewed by the Nebraska Court of Appeals and/or Nebraska Supreme Court. Among the implications to be considered will be the regulatory authority of NRDs regarding the use of ground water. If the Order is reversed or modified on appeal, the rules and regulations of the NRDs that govern ground water use across the state may be rendered invalid or significantly impaired. As a consequence, NRDs may not only be faced with a significant reduction in regulatory authority, but will likely face challenges to their taxing authority, issues related to staff retention, and issues regarding future and past ground water data collection and retention.

5. On or about July 7, 2003 the Nebraska Ground Water Management Coalition ("Coalition") was formed when several NRDs entered into an interlocal cooperation agreement ("Agreement") pursuant to the Interlocal Cooperation Act, Neb. Rev. Stat. § 13-801 et seq. The Coalition is presently comprised of professional, full-time water managers and includes over 15 NRDs from across Nebraska. The purpose of the Coalition is "to provide the authority, resources, services, studies, and facilities needed for the representation of interests of all members in proceedings before all agencies, tribunals, courts and any administrative, legislative, executive, or judicial bodies concerning or effecting Nebraska's ground water, its use, its regulation, and its relationship to surface water, to inform and educate the public concerning ground water and the effects and impacts of any proposed changes on the people and resources of the State of Nebraska and pursue such other activities concerning such other matters related to ground water in Nebraska as determined by the Coalition." Agreement, ¶3.

6. I have been an attorney admitted to practice in Nebraska since 1987. Since 1991, my practice has primarily focused on water law and policy. I was hired to serve as legal counsel for the Coalition upon its formation. In accordance with instructions I received from the Coalition, I have provided the foregoing information to the DNR with the express intention to allow the Coalition to intervene as a party defendant to the present matter. The Coalition desires to participate as a party in an effort to develop a complete record that will allow Nebraska's appeals courts to fully and fairly consider the issues that arise from the DNR's decision. The Coalition and its individual member NRDs will be directly affected by the final resolution of this matter and desire full party status.

I declare under penalty of peIjury that the foregoing is true and correct.

Date – July 12, 2004

Donald G. Blankenau
State of Nebraska
County of Lancaster
Subscribed and sworn to before me this 12th day of July, 2004, by Donald G. Blankenau.