Upper Big Blue Natural Resources District v. City of Fremont
1993 Neb. LEXIS 21, 495 N.W.2d 23, 242 Neb. 315 (1993)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
The right to divert unappropriated waters under Article XV, Section 6 of the Nebraska Constitution is not self-executing and can be legitimately limited by statutes that define the "public interest," including considerations of environmental impacts and foreseeable future beneficial uses, provided such statutes do not usurp judicial power or deny the doctrine of prior appropriation to vested rights.
Facts:
- On December 17, 1981, Upper Big Blue Natural Resources District (Upper Big Blue) filed 14 applications with the Department of Water Resources to divert unappropriated waters from the Platte and Blue Rivers for a "Landmark Project" to replace dwindling ground water supplies under project lands.
- The Landmark Project initially proposed impounding water in six reservoirs to serve an estimated 114,000 acres across seven counties, including seven applications for interbasin transfer of Platte River flows to the Blue River basin.
- In March 1983, the Department of Water Resources directed Upper Big Blue to consult with the Nebraska Game and Parks Commission (Game Commission) pursuant to the Nongame and Endangered Species Conservation Act (NESCA) regarding potential impacts on endangered species.
- In May 1986, the Game Commission issued a biological opinion concluding that while a partial diversion (Big Blue diversion) would not jeopardize endangered species if habitat requirements were met, the full project, including Plum Creek Reservoir with other proposed projects, would jeopardize whooping cranes, bald eagles, least terns, and piping plovers.
- In October and November 1987, Upper Big Blue scaled down the Landmark Project, filing motions to amend and withdraw applications, and new applications, reducing the project to two reservoirs.
- On November 14, 1990, after reinitiating consultation, the Game Commission issued a second biological opinion concluding that the scaled-down Landmark Project would jeopardize the continued existence of the least tern and piping plover, and that insufficient information existed for other species like the western prairie fringed orchid, American burying beetle, and pallid sturgeon.
- Upper Big Blue’s applications were considered as a single package, with the understanding that the entire project would be unsuccessful if any group of applications was denied.
- The Department of Water Resources was required to consider factors including the project's impact on endangered or threatened species and whether the applications were detrimental to the public welfare, as defined by statute.
Procedural Posture:
- On December 17, 1981, Upper Big Blue Natural Resources District (Upper Big Blue) filed 14 applications with the Department of Water Resources for water diversion.
- Numerous parties, including other natural resources districts, conservation associations, and municipal utilities, filed objections to Upper Big Blue's amended applications.
- An initial evidentiary hearing before the director of the Department of Water Resources was held from April 30 to June 8, 1990.
- A second evidentiary hearing was conducted from March 25 to March 28, 1991, following a new biological opinion from the Game Commission.
- On December 16, 1991, the director of the Department of Water Resources issued an order denying all of Upper Big Blue's applications, finding the project detrimental to the public welfare and that it would jeopardize endangered or threatened species or their habitat.
- Upper Big Blue timely appealed the director's order to the Supreme Court of Nebraska.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Are Neb. Rev. Stat. §§ 37-435(3), 46-288, and 46-289 unconstitutional because they impose limitations on the right to divert unappropriated waters for irrigation, allegedly denying the substantive right guaranteed by Neb. Const. art. XV, §§ 4, 5, and 6, by broadly defining "public interest" to include environmental impacts and future beneficial uses, and by considering foreseeable future beneficial uses over applications for appropriation?
Opinions:
Majority - Grant, J.
No, Neb. Rev. Stat. §§ 46-288 and 46-289 are not unconstitutional, and the court declines to rule on § 37-435(3). The court first establishes that a statute is presumed constitutional, and the party challenging it bears the burden of establishing its unconstitutionality. The court determines that Article XV, Sections 4, 5, and 6 of the Nebraska Constitution, which declare water a natural want and dedicate it to beneficial use subject to the public interest, are not self-executing. Applying the test from State, ex rel. Walker, v. Board of Commissioners, these provisions merely state a line of policy without providing means for implementation, are directed at the Legislature, and contemplated subsequent legislation to define the "public interest" and carry them into effect. Therefore, the Legislature has the constitutional authority to enact statutes like §§ 46-288 and 46-289 to define and implement the "public interest" in water appropriation decisions. The court explicitly states it will not determine the constitutionality of § 37-435(3) as amended because Upper Big Blue is not affected by that statute at the time of the director's order. Sections 46-288 and 46-289, which require consideration of economic, environmental, and other benefits and impacts, current and foreseeable future beneficial uses, and alternative water sources, are valid mechanisms for determining whether the public interest demands the denial of an interbasin appropriation application, consistent with In re Application A-16642. Furthermore, subsections (4) and (5) of § 46-289, which consider foreseeable future beneficial uses, do not deny the doctrine of prior appropriation because this doctrine attaches only to actual, vested appropriative rights, not to mere applications for permission to divert water, as affirmed in In re Applications A-15145, A-15146, A-15147, and A-15148. Allowing procedural priority of applications to override public interest concerns would render the constitutional limitation meaningless. Finally, these statutes do not usurp judicial power, as the Legislature is acting within its province to delineate the public interest for a non-self-executing constitutional provision.
Analysis:
This case is highly significant in clarifying the scope of legislative authority in water resource management within Nebraska. By ruling that the state's constitutional water provisions are not self-executing, the Supreme Court firmly empowers the Legislature to define and implement the "public interest" broadly, incorporating critical considerations such as environmental protection, endangered species conservation, and future water needs into appropriation decisions. This prevents a narrow interpretation of constitutional rights from hindering comprehensive, sustainable resource management. The distinction between an application for water rights and a vested water right is also crucial, ensuring that speculative or unperfected claims do not override the state's ability to manage water resources for the long-term benefit of its citizens and ecosystems.
