Central Platte Natural Resources District v. City of Fremont
1996 Neb. LEXIS 121, 250 Neb. 252, 549 N.W.2d 112 (1996)
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Rule of Law:
Denial of a permit to divert unappropriated waters is demanded by the public interest when the proposed project would jeopardize the continued existence of an endangered or threatened species, as defined by state law, and such a finding is supported by competent and relevant evidence.
Facts:
- The Central Platte Natural Resources District (the District) planned a project called Prairie Bend II, aiming to divert waters from the Platte River and a tributary of Prairie Creek.
- The purpose of the Prairie Bend II project was to store water to replenish irrigation supplies, improve water quality for municipal, domestic, and livestock uses, and recharge groundwater.
- The project involved building the Prairie Diversion Dam near Kearney, Nebraska, and constructing a main supply canal, a main storage reservoir (North Prairie Reservoir), four smaller reservoirs, and 24 recharge ponds.
- The U.S. Department of the Interior had previously designated a 58-mile stretch of the Platte River, including the proposed damsite, as "whooping crane critical habitat."
- Confirmed sightings of whooping cranes in the Platte River Valley, including the immediate vicinity of the proposed dam, were documented over several decades.
- The Nebraska Game and Parks Commission initially issued an opinion that the project would not jeopardize whooping cranes, assuming the diversion structure would not adversely affect roosting habitat.
- A letter from the U.S. Fish and Wildlife Service highlighted concerns about the proposed dam's location due to recent whooping crane sightings and prior land acquisition for offsetting habitat impacts.
- Expert testimony indicated that the proposed diversion dam could create water depths of 4 feet at the dam and 1-2 feet a half-mile upstream, while ideal whooping crane roosting depth is less than 12 inches.
Procedural Posture:
- The Central Platte Natural Resources District filed seven applications for permits with the Department of Water Resources to develop its Prairie Bend II project.
- The Director of the Department of Water Resources conducted an evidential hearing regarding the applications.
- Following the hearing, the Director of the Department of Water Resources denied all seven applications.
- The Central Platte Natural Resources District, as applicant-appellant, appealed the Director’s denial to the Supreme Court of Nebraska.
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Issue:
Does the public interest demand the denial of water diversion permits when the Department of Water Resources finds, with evidential support, that the proposed project would jeopardize the continued existence of an endangered species?
Opinions:
Majority - Caporale, J.
Yes, the public interest demands the denial of water diversion permits when the Department of Water Resources finds, with evidential support, that the proposed project would jeopardize the continued existence of an endangered species. The court found that the director's determination that the project would jeopardize the endangered whooping crane was supported by competent and relevant evidence. This evidence included confirmed whooping crane sightings in the vicinity of the proposed dam, the dam's location within designated critical habitat, and the projected water depths behind the dam which would exceed the ideal roosting depths for whooping cranes. The court emphasized that Neb. Rev. Stat. § 37-435(3) mandates that state agencies, such as the Department of Water Resources, utilize their authority to ensure that actions authorized by them do not jeopardize endangered or threatened species or destroy their critical habitat. The court had previously affirmed the constitutionality of this statute as a permissible implementation of the public interest clause in Neb. Const. art. XV, § 6. Therefore, the protection of endangered species is deemed to be "demanded by the public interest," making a finding of jeopardy a sufficient basis for permit denial, rendering irrelevant whether unappropriated waters exist or the sequence of other considerations.
Dissenting - Wright, J.
No, the director's decision to deny the applications was arbitrary and not supported by sufficient evidence, as the evidence relied upon by the director was flawed and did not conclusively establish jeopardy to the whooping crane. Justice Wright argued that the director misinterpreted expert testimony regarding water depth, specifically that the 4-foot maximum depth would only occur during a 100-year flood, not normal operations, and that water levels would quickly drop to ideal roosting depths upstream. The dissent also contended that the director arbitrarily used a letter from the U.S. Fish and Wildlife Service, selectively focusing on concerns about relocation while ignoring the letter's overall conclusion that the project would "not likely adversely affect" whooping crane habitat and that any issues would be resolved in later planning phases. Justice Wright concluded that isolated whooping crane sightings a half-mile from the dam did not provide a sufficient evidentiary basis to "completely undermine" the commission's determination or to deny the applications, especially given the constitutional right to divert unappropriated waters for beneficial use.
Concurring - White, C.J.
Yes, the director's decision was not arbitrary or capricious because it was supported by some competent evidence, and courts should defer to the agency's judgment and expertise in such matters. Chief Justice White emphasized that appellate review of an administrative agency's factual determinations is highly deferential, applying an "arbitrary and capricious" standard. Under this standard, a decision is not arbitrary simply because it weighs certain evidence, even "worst-case scenarios," more heavily, as long as some evidence supports the decision. The chief justice stated that the court's role is not to re-evaluate policy, wisdom, or to make its own factual findings, but rather to ensure the agency acted within its jurisdiction and that its findings are supported by competent evidence. Erring on the side of caution to protect an endangered species is a reasonable exercise of agency discretion.
Analysis:
This case reinforces the substantial deference appellate courts grant to administrative agencies' factual findings, especially in complex environmental and resource management contexts. It clarifies that Nebraska's constitutional and statutory "public interest" requirements for water rights strongly include the protection of endangered species, establishing that a supported finding of jeopardy to such species is a sufficient and paramount basis for denying water diversion permits. This precedent means that environmental protection, particularly for threatened and endangered wildlife, can supersede other considerations in water appropriation decisions, limiting the discretion of those seeking to divert public waters.
