In re Application A-18503
286 Neb. 611 (2013)
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Rule of Law:
To have standing to challenge an administrative water appropriation decision in Nebraska, a party must demonstrate a concrete, actual, or imminent injury in fact, directly traceable to the challenged action and redressable by a favorable decision, and cannot rest a claim on speculative harm or the generalized public interest.
Facts:
- The Nebraska Public Power District (NPPD) sought to appropriate an additional 425 cubic feet per second (cfs) of natural flow from the Niobrara River.
- This additional water was intended to fully supply NPPD's hydropower units at Spencer Dam, adding to its existing 2,035 cfs appropriation.
- Middle Niobrara Natural Resources District and Lower Niobrara Natural Resources District (collectively NRDs) are political subdivisions of Nebraska, charged with managing groundwater within their borders.
- Thomas Higgins owns real property in the Niobrara River Basin and holds senior existing and pending Niobrara River surface water appropriations.
Procedural Posture:
- On or about April 16, 2007, Nebraska Public Power District (NPPD) filed application A-18503 with the Department of Natural Resources (DNR).
- Notice of NPPD’s application was published on March 15, 2012.
- The Middle Niobrara Natural Resources District, Lower Niobrara Natural Resources District (collectively NRDs), and Thomas Higgins each filed objections to NPPD’s application.
- The DNR director dismissed all objections sua sponte, concluding that the objectors lacked standing.
- The NRDs and Higgins appealed the DNR's dismissals to the Nebraska Supreme Court.
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Issue:
Does a natural resources district or an individual with existing and pending water appropriations have standing to object to a new surface water appropriation application when their alleged injuries are based on speculative future harm, such as a possible future "fully appropriated" designation or potential increases in property taxes, rather than a direct and palpable existing injury?
Opinions:
Majority - Heavican, C.J.
No, a natural resources district or an individual with existing and pending water appropriations generally lacks standing to object to a new surface water appropriation application if their alleged injuries are speculative and do not establish a concrete, actual, or imminent harm distinct from the general public interest. The Nebraska Supreme Court affirmed the DNR's dismissal of objections by the NRDs and Higgins. The court reiterated that standing requires a party to have a legal or equitable right, title, or interest in the subject matter and to have suffered an "injury in fact" that is "concrete in both a qualitative and a temporal sense." This injury must be "distinct and palpable, as opposed to merely abstract," and "actual or imminent, not conjectural or hypothetical." The NRDs' claim of potential future "fully appropriated" designation leading to increased duties and expenditures was deemed speculative, as no such designation had been made. The court distinguished this from Middle Niobrara NRD, where NRDs had standing to challenge an actual fully appropriated designation that triggered immediate duties. Similarly, Higgins' allegations that the appropriation "may" increase his taxes or affect property value were found speculative. His claim of impact on existing and pending appropriations was also rejected because his rights were senior and upstream, meaning they would not be adversely affected by a junior appropriation. The court also held that allegations based on "public interest" are insufficient to confer standing, as a litigant must assert their own specific rights and interests.
Concurring in part, dissenting in part - Stephan, J.
No, the NRDs do not have standing, but yes, Thomas Higgins did adequately allege standing to challenge the application. Justice Stephan concurred with the majority that the NRDs lacked standing, agreeing that their asserted injury—the potential for a future "fully appropriated" designation triggering duties—was speculative and did not meet the "injury in fact" requirement as established in Middle Niobrara NRD. He emphasized that the Department's resolution of this specific appropriation application would not itself require NRDs to expend public funds. However, Justice Stephan dissented regarding Higgins' standing. He argued that Higgins' allegations that the new appropriation "will adversely impact his existing appropriations" and "will preclude or otherwise increase the cost of" his pending application identified specific, legally protectable interests and were sufficient as "notice pleading" to survive summary dismissal. He cited Ponderosa Ridge LLC and Hagan v. Upper Republican NRD to support that landowners with water use interests had standing to challenge agreements that would deplete their water source, even if the harm was threatened or future, especially at the pleading stage where allegations are accepted as true.
Dissenting - Connolly, J.
No, the majority opinion incorrectly finds that the appellants lack standing. Justice Connolly dissented, arguing the majority ignored evidence of imminent harm, existing case law, and misconstrued standing hurdles. He highlighted the significant volume of water NPPD requested (425 cfs, equivalent to a large annual irrigation allotment) and the Department's 5-year delay in publishing notice. He contended that the appropriation, if granted, presents an imminent harm because it is highly likely to result in a "fully appropriated" determination for the river basin, which would then halt new appropriations (like Higgins' pending application) and trigger duties for the NRDs. Justice Connolly criticized the majority's reliance on a statement from Central Neb. Pub. Power Dist as dicta and misapplied. He stressed that Nebraska's standing rules, adopted from federal courts, should recognize "threatened" or "imminent" injury, which does not require absolute certainty. He also pointed out the Department's own regulations defining an "interested person" as one who "is or could be adversely affected," suggesting a broader scope for standing. Furthermore, he argued that due to the collateral attack rule, once approved, the appropriation cannot be challenged, making early standing crucial. At the pleading stage, general factual allegations of injury should suffice.
Analysis:
This case reinforces a strict interpretation of "injury in fact" for standing in Nebraska administrative law, particularly for challenges to water appropriation permits. It clarifies that merely speculative or hypothetical future harms, such as the potential for a river basin to be declared fully appropriated at some point, are generally insufficient to confer standing. While emphasizing a "concrete, actual or imminent" standard, the split opinions highlight the tension between judicial efficiency and ensuring aggrieved parties have an avenue for review, especially given the "collateral attack" rule precluding later challenges. This decision may make it more difficult for individuals and resource districts to proactively challenge permits for large resource allocations, potentially shifting the burden of proving actual harm to a later stage, where it might be too late to seek redress.
