Department of Natural Resources v. Bose
674 N.W.2d 788, 2004 Neb. LEXIS 24, 267 Neb. 430 (2004)
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Rule of Law:
A water appropriation may be canceled for non-use for more than three consecutive years if the appropriator fails to rebut a prima facie showing of non-use or demonstrate sufficient cause for the non-use, with mere convenience explicitly not constituting sufficient cause.
Facts:
- Water appropriation A-4924, with a priority date of December 31, 1951, allowed the diversion of 0.67 cubic feet per second from the Republican River for the irrigation of 77.2 acres in Harlan County, Nebraska.
- Lee Bose and Craig Bose (the Boses) have owned the land subject to this appropriation since the mid-1970s.
- On February 1, 2003, the Department of Natural Resources (Department) delivered a notice to the Boses stating that a hearing would be held on March 20, 2003, to determine if appropriation A-4924 should be canceled due to non-use for more than three consecutive years.
- Brad Edgerton, a Department employee, conducted a field investigation and reported that on September 25, 2002, Craig Bose stated the land had not been irrigated from the Republican River in the past 10 years and was currently irrigated with groundwater wells.
- At the hearing, Lee Bose testified that while they primarily used groundwater wells, they did pump from the river once in the mid-1990s when a groundwater well broke.
- Lee Bose explained that using groundwater wells was preferred over surface water from the Republican River for irrigation due to convenience, stating, 'You don’t have to get down in the muck and slop to get out of the river when it’s 98 degrees out.'
Procedural Posture:
- The Department of Natural Resources (Department) entered an order on April 28, 2003, canceling water appropriation A-4924.
- Lee Bose and Craig Bose (the Boses) filed a petition for rehearing with the Department, which was subsequently denied.
- The Boses appealed the Department’s order to the Supreme Court of Nebraska.
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Issue:
Did the Department of Natural Resources err in canceling water appropriation A-4924 for non-use, where the appropriators claimed inadequate notice, insufficient evidence of non-use, and sufficient cause for non-use based on convenience?
Opinions:
Majority - Wright, J.
No, the Department of Natural Resources did not err in canceling water appropriation A-4924. The Supreme Court affirmed that the Department's notice of hearing was adequate, consistent with prior rulings such as In re Water Appropriation A-5000. The Department's verified field investigation report, indicating non-use for over three consecutive years, established a prima facie case for forfeiture under § 46-229.04(1). This shifted the burden to the Boses to present evidence of beneficial use within the statutory period or sufficient cause for non-use. Lee Bose's testimony regarding a single use in the mid-1990s fell outside the required 3-year statutory period immediately preceding the March 20, 2003, hearing. Furthermore, the Boses failed to demonstrate that the Republican River was an inadequate water source as a reason for non-use under § 46-229.04(3)(c), and the court found that mere convenience in using groundwater wells did not constitute 'sufficient cause' for non-use under § 46-229.04(3)(e). Therefore, the Department's factual determinations were supported by competent and relevant evidence and were not arbitrary, capricious, or unreasonable.
Analysis:
This case clarifies the burden-shifting framework in administrative hearings concerning the forfeiture of water appropriations for non-use. It emphasizes that while the Department bears the initial burden to establish a prima facie case of non-use, the onus then shifts to the appropriator to rebut this evidence or demonstrate a statutorily recognized 'sufficient cause.' Crucially, the ruling establishes that mere convenience in utilizing alternative water sources does not constitute sufficient cause for non-use, reinforcing the state's interest in the active and beneficial use of appropriated water rights to prevent waste and ensure efficient resource allocation and management.
