No. S-03-000789

IN THE NEBRASKA SUPREME COURT

SPEAR T RANCH, INC.,
Appellant
vs.
MELVIN G. KNAUB, ET AL.,
Appellees

APPEAL FROM THE DISTRICT COURT OF MORRILL COUNTY, NEBRASKA BEFORE
THE HONORABLE PAUL D. EMPSON

SUPPLEMENTAL BRlEF OF AMICUS CURIAE
NEBRASKA ATTORNEY GENERAL

JON BRUNING, #20351
Attorney General

David D. Cookson, #18681
Justin D. Lavene, #22178
Assistant Attorneys General
2115 State Capitol
Lincoln, NE 68509-8920
Tel: (402) 471-2682
dcookson@notes.state.ne.us
jlavene@notes.state.ne.us

Attorneys for Amicus Curiae.

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTRODUCTION

ARGUMENT

I. THE DOCTRINE OF PRIMARY JURISDICTION

II. II. PRIMARY JURISDICTION IN LIGHT OF THE GROUNDWATER MANAGEMENT AND PROTECTION ACT AND THE RECENT ADOPTION OF LB 962 6

A. Natural Resource Districts and Ground Water Management
B. B. The Department of Natural Resources and Surface Water Management
C. Management of Hydrologically Connected Ground Water and Surface Water

III. THE EFFECT OF THE ADOPTION OF LB 962 ON THIS APPEAL

IV. WHETHER THE NEBRASKA GROUNDWATER 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

CONCLUSION

AFFIDAVIT OF SERVICE

TABLE OF AUTHORITIES

CASES

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

In re Interest of Battiato, 259 Neb. 829, 613 N.W.2d 12 (2000)

In re Referral of Lower Platte South Natural Resources District, 261 Neb. 90, 621 N.W.2d 299 (2001)

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

Far East Conference v. United States, 342 US 570, 72 S. Ct. 492 (1952)

Great Northern Railway Co. v. Merchants Elevator Co., 259 U.S. 285,42 S.Ct. 477 (1922)

Grever v. Idaho Telephone Co., 499 P.2d 1256 (1972)

Humphrey Feed & Grain, Inc. v. Union P. R.R., 199 Neb. 189, 257 N.W.2d 391 (1977)

Texas & Pacific Railway Co. v Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350 (1907)

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)

STATUTES

LB 962, § 50
LB 962, § 52
LB 962, § 53
LB 962, § 54
LB 962, § 55
LB 962, § 57
LB 962, § 58
LB 962, § 59
LB 962, § 83
LB 962, § 90
Neb. Rev. Stat. § 46-203 (Reissue 1998)
Neb. Rev. Stat. § 46-204 (Reissue 1998)
Neb. Rev. Stat. §§ 46-656 et seq., LB 962
Neb. Rev. Stat. § 46-656.02 (Reissue 1998), LB 962 § 42
Neb. Rev. Stat. § 46-656.05,LB 962, § 43
Neb. Rev. Stat. § 46-656.08 (Reissue 1998), LB 962, § 47

SUPPLEMENTAL BRIEF OF AMICUS CURIAE,
NEBRASKA ATTORNEY GENERAL

Pursuant to Nebraska Supreme Court Order entered April 21, 2004, the Nebraska Attorney General, as amicus curiae, offers this Supplemental Brief of Amicus Curiae.

INTRODUCTION

On April 21, 2004, the Nebraska Supreme Court entered an Order requesting the parties, including amicus curiae, to provide additional briefing on the following four issues:

(1) The doctrine of primary jurisdiction;
(2) Primary jurisdiction in light of the Groundwater 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 Groundwater 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 summary of this case and the claims made by the Appellant are set out in the Brief of Amicus Curiae, Nebraska Attorney General at pages 1-3.

The Appellant in this case has also filed an action against the Nebraska Department of Natural Resources ("Department"), in the District Court of Morrill County, (Spear T. Ranch, Inc. v. Nebraska Department of Natural Resources, Case No. CI-02-40). The Appellant's suit against the Department involves many similar issues and claims as the present case before the Court. The Appellant contends that the Department failed to protect Appellant's surface water appropriations in the Pumpkin Creek Subbasin by allowing uncontrolled ground water irrigation to deplete Pumpkin Creek. In its action against the Department, the Appellant is seeking essentially the same damages it seeks in this case, including money damages for lost crops, loss of aesthetic value, and an overall decrease in the value of land.

The Department filed a Motion for Summary Judgment on February 18, 2004. The District Court, by Order dated April 27, 2004, granted the Department's Motion for Summary Judgment and dismissed the Appellant's Amended Complaint with prejudice. The Appellant has appealed that decision to the Nebraska Supreme Court.

Appellant has filed two separate, but similar, lawsuits for the same damages from the alleged loss of surface water appropriations due to the pumping of irrigation wells which are allegedly hydrologically connected to the surface water in Pumpkin Creek. The overriding issue presented in these two lawsuits is the proper administration and management of water resources in Nebraska. The proper administration and management of water resources includes ground water, surface water, and hydrologically connected ground water and surface-water as between surface appropriators and ground water pumpers. In both cases, the Appellant asks this Court to circumvent existing law governing water management in Nebraska.

It is the province of the Legislature to determine how water is to be managed in the State of Nebraska. There is a long and continued desire by the Legislature to regulate ground water and surface water under two separate and distinct legal doctrines. Surface water is administered by the Department according the prior appropriation doctrine. Neb. Rev. Stat. § 46-204 (Reissue 1998). Ground water is regulated by the Natural Resources Districts ("NRDs") and governed by the modified correlative rights doctrine and the principle that every landowner is entitled to a reasonable and beneficial use of the ground water underlying his or her land. Neb. Rev. Stat. § 46-656.02 (Reissue i 998), as amended by LB 962 § 42.

Although it has been argued by the Appellees and Appellants in the present case, that the proper administration of hydrologically connected groundwater and surface water is the partial responsibility of the Department through the Ground Water Management and Protection Act (Neb.Rev.Stat.§§46-656 et seq., as amended by LB962), the Department has no independent authority to regulate ground water for the benefit of surface water appropriations.

ARGUMENT

I. THE DOCTRINE OF PRIMARY JURISDICTION.

The Legislature has set forth its public policy through a regulatory scheme that allows the administrative entities, the Department and NRDs, to resolve important water resource issues with their technical and administrative expertise to bring uniformity of application to the State. The doctrine of primary jurisdiction should therefore be invoked by the Court "where the inquiry is essentially one of fact and discretion in technical matters and when uniformity can be secured only if determination is made by" those administrative entities. In re Interest of Battiato, 259 Neb. 829, 837, 613 N.W. 2d 12, 18 (2000).

The doctrine of primary jurisdiction was originally established by the United States Supreme Court in Texas & Pacific Railway Co. v Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350 (1907). In Abilene, a shipper sued in state court to recover from allegedly excessive and unreasonable rates for interstate shipments of cottonseed. The Court held that the shippers had to pursue their claim with the Interstate Commerce Commission because it was the Commission who set the rates pursuant to the Interstate Commerce Act to prevent rate discrimination. The Supreme Court concluded that if courts were allowed to independently determine the reasonableness of shipping rates, which the Commission was to set and enforce, that it would undermine the uniformity and equality of the rates.

The Court in Abilene stated, "it would follow that unless all courts reached an identical conclusion, a uniform standard of rates in the future would be impossible." Id., 204 U.S. at 440, 27 S.Ct. at 355. Furthermore, the Court noted that the recognition of a right to sue for the reasonableness of the rate would be "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, 204 U.S. at 441, 27 S.Ct. at 355 (emphasis added).

The Supreme Court expanded its rational for invoking the doctrine of primary jurisdiction by citing; administrative expertise, along with uniformity, in Great Northem Railway Co. v. Merchants Elevator Co., 259 U.S. 285, 42 S.Ct. 477 (1922), which involved a dispute over the tariff charged on interstate com shipments. The Court put forth the following analysis:

It is required because the inquiry is essentially one of fact and of discretion in technical matters, and uniformity can be secured only if its determination is left to the Commission. Moreover, that determination is reached ordinarily upon voluminous and conflicting evidence, for the adequate appreciation of which acquaintance with many intricate facts of transportation is indispensable, and such acquaintance is commonly to be found only in a body of experts.

Id., 259 U.S. at 291, 42 S.Ct. at 479 (emphasis added).

Several years later the Court once again highlighted uniformity and administrative expertise as factors in determining whether to adopt the doctrine of primary jurisdiction. In Far East Conference v. United States, 342 US 570, 574-575, 72 S. Ct. 492, 494 (1952), the Court held:

[I]n cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over. . . . Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.
Id., 342 U.S. at 494,72 S.Ct. at 574-575 (emphasis added).

The basic principles of the doctrine of primary jurisdiction, as outlined above, were analyzed by the Nebraska Supreme Court in In re Interest of Battiato, 259 Neb. 829,613 N.W. 2d 12 (2000), as follows:

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.
Id., 259 Neb. at 837, 613 N.W. 2d at 18 (emphasis added).

It should be noted for the Court that the doctrine of primary jurisdiction is a matter of judicial self-restraint and does not deprive the court of jurisdiction. Far East Conference v. United States, 342 US at 574-575, 72 S. Ct. at 494; 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). Therefore, the Court has the ability to keep jurisdiction of the case while allowing the proper administrative entities to complete their legislative functions.

II. PRIMARY JURISDICTION IN LIGHT OF THE GROUNDWATER MANAGEMENT AND PROTECTION ACT AND THE RECENT ADOPTION OF LB 962.

The Legislature has set forth a comprehensive regulatory scheme to manage ground water and surface water in Nebraska through the Groundwater Management and Protection Act as amended by LB 962. The passage of LB 962 confirms that the Legislature wanted to maintain the autonomy and authority of the Department and NRDs, with regard to their responsibilities in managing surface water and ground water in Nebraska, and the systems in which they operate.

A. Natural Resource Districts and Ground Water Management.

Pursuant to Neb. Rev. Stat. § 46-656.02, as amended by LB 962, § 42:
Every landowner shall be entitled to a reasonable and beneficial use of the ground water underlying his or her land subject to the provisions of Chapter 46, article 6, and the Nebraska Ground Water Management and Protection Act and the correlative rights of other landowners when the ground water supply is insufficient for all users.

"The Legislature has the power to determine public policy with regard to ground water. . . ." In re Referral of Lower Platte South Natural Resources District, 261 Neb. 90, 94, 621 N.W.2d 299, 303 (2001). In setting public policy, the Legislature has unequivocally stated that the NRDs, and not the Department, are authorized to regulate ground water in the Nebraska. The Legislature codified the NRDs authority to regulate ground water:

Natural resources districts already have significant legal authority to regulate activities which contribute to declines in ground water levels and to nonpoint source contamination of ground water and are the preferred entities to regulate, through ground water management areas, ground water related activities which are contributing to or are, in the reasonably foreseeable future, likely to contribute to conflicts between ground water users and surface water appropriators. . .
Neb. Rev. Stat. § 46-656.05(3), as amended by LB 962, § 43 (emphasis added).

In order to effectuate the policy set forth by the Legislature to conserve ground water, NRDs, through the Nebraska Groundwater Management and Protection Act (Neb. Rev. Stat. § 46-656 et seq.), as amended by LB 962, have been granted the authority to:

(1) Adopt and promulgate rules and regulations necessary to discharge the act;
(2) Require meters to be place on any water wells for the purpose of acquiring water use data;
(3) Require decommissioning of water wells that are not properly classified as active status water wells. . . or inactive status water wells. . .;
(7) Issue cease and desist orders, . . . to enforce any of the provisions of the act or of orders or permits issued pursuant to the act, to initiate suits to enforce the provisions of orders issued pursuant to the act, and to restrain the construction of illegal water wells or the withdrawal or use of water from illegal water wells. Neb. Rev. Stat. § 46-656.08 (Reissue 1998), as amended by LB 962, § 47 (emphasis added).

B. The Department of Natural Resources and Surface Water Management.

The Legislature has also unequivocally stated that the Department is authorized to regulate surface water:

The Department of Natural Resources is responsible for regulation of surface water resources and local surface 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 overappropriated river basins, subbasins, or reaches.
Neb. Rev. Stat. § 46-656.05(5), as amended by LB 962, § 43 (emphasis added).

For surface water usage, Nebraska utilizes a priority system based on prior appropriation and focuses "on the application of the water to 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's system of equality among riparians." In re Application A-16642, 236 Neb. 671, 684, 463 N. W. 2d 591, 601 (1990). The Nebraska system of surface water prior appropriation is set forth in Neb. Rev. Stat. § 46-203 (Reissue 1998) which simply states: "As between appropriators, the one first in time is first in right." This prior appropriation rule applies to surface water while, in contrast, the right to use ground water derives from ownership of the overlying land. See Bamford v. Upper Republican Natural Resources District, 245 Neb. 299, 512 N.W. 2d. 642 (1994).

C. Management of Hydrologically Connected Ground Water and Surface Water.

Although the Legislature has put forth a regulatory scheme to manage surface water and ground water under two separate systems, by two separate entities, the Legislature recognized that the management and conservation of "[h]ydrologically connected ground water and surface water may need to be managed differently from unconnected ground water and surface water in order to pennit 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. With this public policy of "equity among water users" of hydrologically connected ground water and surface water the Legislature amended the Ground Water Management and Protection Act through LB 962 in order to give the Department and NRDs the authority and tools they needed to accomplish this goal.

Pursuant to LB 962, the Department is responsible for evaluating the expected long term availability of hydrologically connected water supplies for both existing and new surface water uses and ground water uses in all of the river basins in Nebraska. LB 962, § 53. The Department is required to issue reports that describe the results of its evaluation of the various basins. Id. Based on the information reviewed in the evaluation process, the Department shall arrive at a preliminary conclusion as to the classification for each river basin, subbasin, and reach. Id.

(3) A river basin, subbasin, or reach shall be deemed fully appropriated if the department determines that then-current uses of hydrologically connected surface water and ground water in the river basin, subbasin, or reach cause or will in the reasonably foreseeable future cause (a) the surface water supply to be insufficient to sustain over the long term the beneficial or useful purposes for which existing natural flow or storage appropriations were granted and the beneficial or useful purposes for which, at the time of approval, any existing instream appropriation was granted, (b) the streamflow to be insufficient to sustain over the long term the beneficial uses from wells constructed in aquifers dependent on recharge from the river or stream involved, or (c) reduction in the flow of a river or stream sufficient to cause noncompliance by Nebraska with an interstate compact or decree, other formal state contract or agreement, or applicable state or federal laws.
LB 962, § 53(3) (emphasis added).

(4)(a) A river basin, subbasin, or reach shall be deemed overappropriated if, on the operative date of this section, the river basin, subbasin, or reach is subject to an interstate cooperative agreement among three or more states and if, prior to such date, the department has declared a moratorium on the issuance of new surface water appropriations in such river basin, subbasin, or reach and has requested each natural resources district with jurisdiction in the affected area in such river basin, subbasin, or reach either (i) to close or to continue in effect a previously adopted closure of all or part of such river basin, subbasin, or reach to the issuance of additional water well permits ... or (ii) to temporarily suspend or to continue in effect a temporary suspension, previously adopted ... on the drilling of new water wells in all or part of such river basin, subbasin, or reach.
LB 962, § 53(4)(a) (emphasis added).

If the Department makes a preliminary determination that a river basin, subbasin, or reach is fully appropriated, "the department shall place an immediate stay on the issuance of any new natural-flow, storage, or storage-use appropriations in such river basin, subbasin, or reach." LB 962, § 54. The Department must also provide prompt notice of such preliminary determination to the relevant NRDs affected by the determination. When the NRD receives such notice there will also be a stay imposed on the issuance of new water well construction permits.

(2) If the department preliminarily determines a river basin, subbasin, or reach to be fully appropriated and has identified the existence of hydrologically connected surface water and ground water in such river basin, subbasin, or reach, stays shall also be imposed (a) on the construction of any new water well in the area covered by the determination. . . and (b) on the use of an existing water well or an existing surface water appropriation in the affected area to increase the number of acres historically irrigated.
LB 962, § 54(2) (emphasis added).

After the Department has designated a river basin as over appropriated or fully appropriated the development of an integrated management plan is the next step in the process:

(1) Whenever the Department of Natural Resources has designated a river basin, subbasin, or reach as overappropriated or has made a final determination that a river basin, subbasin, or reach is fully appropriated, the natural resources districts encompassing such river basin, subbasin, or reach and the department shall jointly develop an integrated management plan. . . ."
LB 962, § 55(1) (emphasis added).

(2) . . . An integrated management plan shall include the following: (a) Clear goals and objectives with a purpose of sustaining the balance between water uses and water supplies so that the economic viability, social and environmental health, safety and" welfare of the river basin, subbasin, or reach can be achieved and maintained for both the near term and the long term; (b) a map clearly delineating the geographic area subject to the integrated management plan; (c) one or more of the ground water controls authorized for adoption by natural resources districts pursuant to section 79 of this act; and (d) one or more of the surface water controls authorized for adoption by the department pursuant to section 56 of this act.
LB 962, § 55(2) (emphasis added).

If at any time during the development of a basin wide plan or integrated management plan the Department and NRD fail to reach a timely agreement, the dispute shall be submitted to the Interrelated Water Review Board for a final determination. LB 962, §§ 58, 59.

The procedures set forth by the Legislature in LB 962 are there to accomplish its public policy 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. It does not, however, alter the Legislature's longstanding public policy of having ground water and surface water managed by separate entities using separate legal systems. The cooperative process laid out by the Legislature simply allows the two entities, the Department and NRD's which have the technical expertise with regard to the water resource they independently manage, to be able to work together in the administration of hydrologically connected water to ensure equality of use between surface water appropriators and ground water pumpers. Without this cooperative framework it would be difficult for either administrative agency to independently manage hydrologically connected ground water and surface water to ensure sustainability of the resource for all water users.

For the cooperative framework to succeed, the doctrine of primary jurisdiction should be invoked where, as here, management decisions are "essentially one[s] of fact and of discretion in technical matters and when uniformity can be secured only if determination is made by that agency." In re Interest of Battiato, 259 Neb. at 837, 613 N. W. 2d at 18. The Department and. the NRDs are clearly the proper entities to resolve the highly technical matters of water regulation in the State. To ensure uniformity the regulatory entities must be allowed the opportunity to manage pursuant to the Ground Water Management and Protection Act, as amended by LB 962.

III. THE EFFECT OF THE ADOPTION OF LB 962 ON THIS APPEAL.

As noted in the above analysis, the Legislature has put together a comprehensive regulatory scheme to manage ground water and surface water, including water that is hydrologically connected. In passing LB 962, the Legislature once again restated its public policy determination that, with regard to water administration in Nebraska, two entities are responsible for its management, the Department for surface water and 'the NRDs for ground water. Likewise, the Legislature did not abandon the separate legal framework for regulating surface water and ground water. Passage of LB 962 reaffirms that Appellant's attempts to regulate ground water under the prior appropriation doctrine is contrary to Nebraska law. The Legislature has set forth its public policy for water use in Nebraska and developed a regulatory scheme to implement that policy which the Department and the NRDs are now pursuing.

LB 962 became effective as Nebraska law on July 15,2004. Currently, the Department is evaluating the river basins to arrive at a preliminary conclusion as to whether the basins will be deemed fully or overappropriated. On July 15, 2004, the Director of the Department determined that several basins should be classified as fully appropriated and issued an Order Declaring Formal Moratoriums in those basins. It is expected that the Pumpkin Creek Subbasin will be designated as overappropriated within sixty days of the effective date of LB 962, or approximately September 15, 2004, as authorized pursuant to LB 962, §53(4)(b).

The process for managing hydrologically connected surface water and ground water, pursuant to LB 962, has already started. Protecting and sustaining Nebraska's water resources will be accomplished through the technical expertise of the Department and the NRDs. The Court should be aware that any decisions made in this case, or in the Appellant's case against the Department, that result in alterations to the regulatory scheme set up by the Legislature, will have various negative consequences on the ability of the Department and NRDs to carry out the Legislature's public policy with regard to water management in the State.

IV. WHETHER THE NEBRASKA GROUNDWATER 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.

The Groundwater Management and Protection Act, as amended by LB 962, properly provides a recourse for Appellant's concerns with regard to the management and administration of hydfologically connected water. The public is allowed numerous opportunities to present evidence and testimony at public hearings during virtually every step of the process outlined above. LB 962; § 50, § 52, § 54, § 57, § 58, § 59, § 83. Furthermore, "any person aggrieved by any order of the" NRD or the Department "issued pursuant to the Nebraska Ground Water Management and Protection Act may appeal the order" in accordance with the Administrative Procedures Act. LB 962, § 90. Therefore, the Appellant is provided with an adequate remedy at law.

CONCLUSION

As stated above, the Appellant has filed two separate lawsuits alleging that they have been wrongfully deprived of their surface water appropriation, either from the direct actions of the Appellees in pumping the ground water or by the negligence of the Department in failing to protect the Appellant from the ground water irrigators. It is the province of the Legislature to set Nebraska's water policy and they have put forth the statutory framework requiring the separate administration of ground water and surface water with a cooperative process between the Department and NRDs with regard to hydrologically connected water. To ensure uniformity of water management in Nebraska the proper regulatory entities must be allowed the opportunity to review these important and technical issues pursuant to the Ground Water Management and Protection Act as amended by LB 962.

Respectfully submitted this 28th day of July, 2004.

NEBRASKA ATTORNEY GENERAL,
Amicus Curiae.

BY JON BRUNING, #20351
Attorney General

BY:
David D. Cookson, #18681
Justin D. Lavene, #22178
Assistant Attorneys General
Agriculture, Natural Resources &
Environment Section
2115 State Capitol
Lincoln, NE 68509
Tel: (402) 471-2682
dcookson@notes.state.ne.us
jlavene@notes.state.ne.us

IN THE SUPREME COURT OF THE STATE OF NEBRASKA

The undersigned, being first duly sworn, hereby certifies that two copies of the
SUPPLEMENTAL BRIEF OF AMICUS CURIAE NEBRASKA ATTORNEY GENERAL were served via first class mail, postage prepaid on this 28th day of July, 2004, upon the following:

Further Affiant sayeth naught.

Justin D. Lavene, #22178
Assistant Attorney General

Subscribed and sworn to before me this 28th day of July 2004
DANA J. HOFFMAN
Notary Public