Sporhase v. Nebraska Ex Rel. Douglas
73 L. Ed. 2d 1254, 1982 U.S. LEXIS 13, 458 U.S. 941 (1982)
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Rule of Law:
Ground water is an article of commerce and therefore subject to regulation under the Commerce Clause. A state statute that imposes a reciprocity requirement on the interstate transfer of ground water, which operates as an explicit barrier to commerce, violates the dormant Commerce Clause if it is not narrowly tailored to the state's legitimate interest in water conservation.
Facts:
- Joy Sporhase and Delmer Moss (Appellants) jointly own contiguous tracts of land in Chase County, Nebraska, and Phillips County, Colorado.
- A well located on the Nebraska tract pumps ground water to irrigate land in both Nebraska and Colorado.
- Previous owners registered the well with Nebraska in 1971, but neither they nor the current owners applied for a permit required for interstate water transfer.
- Nebraska Revised Statute § 46-613.01 requires a permit to transport ground water for use in an adjoining state.
- The statute conditions the permit on four findings: the withdrawal must be (1) reasonable, (2) not contrary to conservation, (3) not detrimental to public welfare, and (4) the state where the water is used must grant reciprocal rights to transport water for use in Nebraska.
- At the time, Colorado law forbade the exportation of its ground water, meaning the reciprocity condition could not be met.
Procedural Posture:
- The State of Nebraska, ex rel. Paul L. Douglas, Attorney General (Appellee), sued Joy Sporhase and Delmer Moss (Appellants) in a Nebraska state trial court.
- Nebraska sought an injunction to prevent Appellants from transporting ground water from their Nebraska well to their land in Colorado without a permit.
- Appellants defended by arguing that the Nebraska statute requiring the permit was an unconstitutional burden on interstate commerce.
- The trial court rejected the constitutional defense and granted the injunction.
- Appellants appealed the decision to the Nebraska Supreme Court.
- The Nebraska Supreme Court affirmed the trial court's ruling, holding that Nebraska ground water is not an article of commerce.
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Issue:
Does a Nebraska statute that conditions permits for withdrawing ground water for use in an adjoining state on whether the adjoining state grants reciprocal rights to use its water in Nebraska violate the dormant Commerce Clause?
Opinions:
Majority - Justice Stevens
Yes, the Nebraska statute's reciprocity provision violates the dormant Commerce Clause. Ground water is an article of commerce, and state laws affecting its interstate transfer are subject to constitutional scrutiny. The Court first established that ground water is not exempt from Commerce Clause analysis, rejecting the legal fiction of state ownership that previously shielded some natural resources from federal oversight. Applying the test from Pike v. Bruce Church, Inc., the Court found that while Nebraska has a legitimate and highly important interest in conserving its water, the reciprocity requirement is not narrowly tailored to that purpose. This provision operates as an explicit barrier to commerce, subjecting it to the strictest scrutiny. Nebraska failed to demonstrate that this facially discriminatory requirement significantly advances its conservation interests, as it blocks water transfers even from areas with abundant water to a state that does not reciprocate, regardless of actual conservation needs. Finally, the Court rejected the argument that Congress had consented to such state laws, finding that general deference to state water law does not remove federal constitutional constraints.
Dissenting - Justice Rehnquist
No, the Nebraska statute does not violate the dormant Commerce Clause. The Court should not have addressed Congress's affirmative power to regulate but only the negative implications of the Commerce Clause. A state has a quasi-sovereign interest in essential natural resources within its borders, and through its regulatory scheme, Nebraska has prevented ground water from becoming an 'article of commerce.' Nebraska law does not recognize absolute ownership of ground water but only a limited, usufructuary right to use it on the overlying land, with strict limitations on transfer. Since Nebraska does not permit an intrastate market for ground water, it cannot be said to discriminate against or burden interstate commerce. The statute is simply a regulation of a landowner's limited right to use a state-controlled resource, not a regulation of commercial activity.
Analysis:
This landmark decision established that water is an article of interstate commerce, subjecting state water allocation laws to dormant Commerce Clause scrutiny. By rejecting the 'public ownership' fiction for water, the Court limited states' ability to hoard this vital resource and engage in economic protectionism. The ruling forces states, particularly in the arid West, to justify restrictions on water exports by showing they are narrowly tailored to legitimate conservation goals, rather than merely discriminating against out-of-state users. This case significantly influences interstate water disputes and compacts, ensuring that state conservation efforts do not unduly burden the national market.
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