Central Platte Natural Resources District v. State
245 Neb. 439, 513 N.W.2d 847, 1994 Neb. LEXIS 67 (1994)
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Rule of Law:
For instream flow appropriations, 'unappropriated water' is determined by the historic flow method, reflecting water not subject to an existing appropriator's beneficial use, and the 'fairly continuous and dependable' standard must be assessed in the context of the application's purpose and the species' adaptive capacity. An instream appropriation does not physically or legally interfere with senior surface water rights by leaving water in the stream, and the Director is not required to explicitly discuss forgone uses when determining public interest under the Administrative Procedure Act. Administrative adjudicators assisting in technical interpretation are not automatically disqualified for prior exposure to or investigation of the facts, or for general policy biases, nor are they subject to subpoena without a showing of unique and indispensable knowledge.
Facts:
- On July 25, 1990, the Central Platte Natural Resources District (CPNRD) filed six applications for permits to appropriate water for instream flows in the Platte River.
- CPNRD sought to reserve water rights to maintain food sources and habitats for five bird species, including least terns, piping plovers, sandhill cranes, and whooping cranes.
- The State of Wyoming (Wyoming) owned land bordering the Platte River in Buffalo and Kearney Counties, Nebraska, and intended to use that land as a whooping crane migrational habitat.
- Wyoming objected to CPNRD’s applications.
- CPNRD also had a separate project, the Prairie Bend Project, which involved diverting water from the Platte River near Kearney, Nebraska, and would be senior in priority to the instream flow appropriations.
Procedural Posture:
- During July and September 1991, the Department of Water Resources (DWR) held hearings on CPNRD's instream flow applications.
- On July 2, 1992, the Director of the DWR granted three of the applications, granted in part and denied in part one application, denied one application, and dismissed one application.
- The State of Wyoming appealed the Director's decision (concerning the granted applications) to the Nebraska Court of Appeals, where Wyoming was the appellant.
- The Nebraska Court of Appeals affirmed the Director's decision.
- Wyoming then petitioned for and was granted further review in the Nebraska Supreme Court, where Wyoming is the appellant.
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Issue:
Does the Director of the Department of Water Resources err in determining the availability of unappropriated water, the non-interference with senior water rights, and the public interest for instream flow applications, and does the participation of a state hydrologist in the decision-making process violate due process?
Opinions:
Majority - White, J.
No, the Director generally did not err in determining the availability of unappropriated water, non-interference with senior water rights, or public interest, nor did the hydrologist's participation violate due process; however, the Director did err by failing to adequately consider the impact of CPNRD's senior Prairie Bend Project on water availability. The Court held that the 'historic flow method,' which uses daily flow records over many years and accounts for actual beneficial use, is a permissible way to measure 'unappropriated water' for instream flow applications, defining 'unappropriated water' as water not subject to an existing appropriator's beneficial use limit. It rejected the 'full rights method' (reducing historic flow by all existing appropriation rights regardless of actual use) as legally unsound for instream flows. The Court found error, however, in the Director's conclusion that the Prairie Bend Project would not affect water availability for the instream flows. The Director relied on CPNRD's manager's testimony that the project would honor instream permits, but there was no evidence the manager had the legal authority to bind CPNRD to such a waiver. This portion of the decision was reversed and remanded for reconsideration. The Court further clarified that the Director is not obligated to adjust historic flows for future groundwater depletion, as such water is currently unappropriated and this is a policy matter for the Legislature. The 'fairly continuous and dependable' standard for water availability must be adapted to the specific application; for wildlife habitats, it means the flow regime the species can bear, which the Director correctly found to be met given the species' adaptability. Regarding senior surface water rights, an instream appropriation, by definition, leaves water in the stream and is subject to prior appropriation, thus creating neither a physical nor a legal interference. On the public interest determination, the Director is not statutorily or administratively required to explicitly discuss 'forgone uses' in the order, only to consider them, which the Court presumed was done given the evidence presented. Finally, the Court found no due process violation regarding Dr. Ann Bleed, the state hydrologist, who assisted the Director. She was properly excluded from testifying as she performed an adjudicative function, and her prior research on river dynamics did not constitute a disqualifying 'prejudgment of precise facts,' but rather exposure to and investigation of the issues or a general policy view, which are not disqualifying.
Concurring-in-part-and-dissenting-in-part - Caporale, J.
Yes, the Director erred regarding the Prairie Bend Project, and Dr. Ann Bleed's participation as an adjudicative assistant who coauthored a report on the central issue could indeed violate due process. Justice Caporale agreed with the majority that the Department of Water Resources' decision regarding the Prairie Bend Project must be reversed and remanded for proper consideration. However, he disagreed with the majority's finding that Dr. Bleed's participation was permissible. He argued that Dr. Bleed not only coauthored a report on the central issue the Director was to decide and examined witnesses, but she may also have been a part of the decision-making process. He contended that such circumstances would lead a 'reasonable disinterested observer' to conclude she had 'in some measure adjudged the facts in controversy,' which would be a due process basis for disqualification. Therefore, he believed Wyoming should have been allowed to depose Dr. Bleed to determine her exact role, and if it was found she served as a decision-maker, the entire order should be vacated and proceedings restarted.
Analysis:
This case significantly clarifies the legal framework for instream flow appropriations in Nebraska, particularly in defining 'unappropriated water' for environmental purposes and the scope of 'public interest' considerations. The ruling reinforces the administrative agency's discretion in its fact-finding and reasoning processes, while also setting boundaries on challenges to administrative adjudicators based on their technical expertise or prior involvement in related research. The remand concerning the Prairie Bend Project highlights the critical importance of rigorously accounting for the impact of all senior water rights, even those held by the applicant, on water availability. This case establishes a pragmatic approach to environmental water rights within the prior appropriation doctrine, balancing conservation goals with existing uses.
