Upper Big Blue Natural Resources District v. City of Fremont
499 N.W.2d 548, 243 Neb. 419, 1993 Neb. LEXIS 147 (1993)
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Rule of Law:
A state statute requiring governmental agencies to consider endangered species during the water permit application process is constitutional if the protection of such species serves a public interest, as determined by the legislature, and permissibly implements constitutional provisions allowing for the denial of water rights when demanded by the public interest.
Facts:
- Upper Big Blue Natural Resources District (Big Blue) sought applications for intrabasin and interbasin diversions of unappropriated waters from the Platte and Blue Rivers.
- Nebraska Revised Statute § 37-435(3) required the Department of Water Resources (the director) to consult with the Nebraska Game and Parks Commission (Game Commission) regarding endangered species when making decisions on such water applications.
- The Game Commission issued a biological opinion in 1990 concerning the impact of Big Blue's proposed project on endangered species, including the pallid sturgeon, burying beetle, and prairie fringed orchid.
- The director of the Department of Water Resources denied Big Blue's applications, partially relying on the Game Commission's biological opinion and balancing various public interest factors as mandated by Neb. Rev. Stat. § 46-289.
- The Nebraska Legislature, in the Nongame and Endangered Species Conservation Act (NESCA), declared that the preservation and protection of endangered species is 'in the public interest' to maintain a satisfactory environment and ecological balance.
- Neb. Const. art. XV, § 6, states that the right to divert unappropriated waters shall never be denied 'except when such denial is demanded by the public interest.'
Procedural Posture:
- Upper Big Blue Natural Resources District (Big Blue) submitted applications to the director of the Department of Water Resources (administrative agency of first instance) for permission to divert water.
- The director of the Department of Water Resources denied Big Blue's applications.
- Big Blue appealed the director's decision to the Nebraska Supreme Court.
- The Nebraska Supreme Court issued an opinion in `In re Applications A-16027 et al., 242 Neb. 315, 495 N.W.2d 23 (1993)`, reviewing the director's decision.
- In its first opinion, the Nebraska Supreme Court rejected Big Blue’s constitutional challenges to two statutes but declined to rule on the constitutionality of Neb. Rev. Stat. § 37-435(3), holding that Big Blue was not affected by that specific statute.
- Big Blue filed a motion for rehearing with the Nebraska Supreme Court, requesting reconsideration of the holding regarding § 37-435(3).
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Issue:
Is Neb. Rev. Stat. § 37-435(3), which requires the Department of Water Resources to consult with the Game Commission regarding endangered species in decisions on water permit applications, an unconstitutional limitation on the right to divert unappropriated waters as guaranteed by Neb. Const. art. XV, §§ 4, 5, and 6?
Opinions:
Majority - Per Curiam
No, Neb. Rev. Stat. § 37-435(3) is constitutional and does not unconstitutionally limit the right to divert unappropriated waters. The court first corrected its previous holding, affirming that Big Blue's interest was sufficiently affected by the statute to permit a constitutional challenge, as the Department of Water Resources (the director) was required to, and did, consult with the Game Commission, and the resulting biological opinion influenced the application's denial. The director's decision-making process under § 46-289 mandates balancing benefits against adverse impacts and documenting sources, which necessarily brought the Game Commission's opinion under § 37-435(3) into play. The Nebraska Constitution, Article XV, Sections 4, 5, and 6, which concern water rights, are not self-executing, and Section 6 specifically permits the denial of water rights when 'demanded by the public interest.' The Legislature's determination of what constitutes a 'public purpose' or 'public interest' is primarily a legislative function, and courts will only invalidate such a determination if the absence of a public purpose is 'so clear and palpable as to be immediately perceptible to the reasonable mind.' The Nongame and Endangered Species Conservation Act (NESCA), of which § 37-435(3) is a part, explicitly states that protecting endangered species is 'in the public interest.' Given these legislative declarations and the unchallenged constitutionality of the federal Endangered Species Act, the court found no clear and palpable absence of a public purpose in state legislation protecting endangered species. Therefore, the limitations imposed by § 37-435(3) are not unreasonable, arbitrary, discriminatory, or confiscatory, and permissibly effectuate the constitutional provisions related to water rights.
Analysis:
This case clarifies the balance between statutory environmental protection requirements and constitutional rights to water diversion, particularly when state agencies must consider the impact on endangered species. It reinforces judicial deference to legislative determinations of what constitutes 'public interest,' indicating that courts will uphold such determinations unless they are clearly and palpably without public purpose, thereby strengthening the state's capacity to regulate natural resources for conservation. The decision underscores that constitutional rights related to resource use are not absolute but are subject to reasonable legislative regulation for the public welfare, establishing an important precedent for integrating environmental considerations into resource allocation decisions.
