Justia Nebraska Supreme Court Opinion Summaries

Articles Posted in Environmental Law

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In 2013 and 2014, the Nebraska Department of Natural Resources (DNR) issued orders and closing notices to holders of surface water permits for natural flow and storage in the Republic River Basin. Several appropriators, on behalf of themselves and a class of farmers who irrigate with water delivered by the Frenchman-Cambridge Irrigation District, subject to Nebraska’s allocation of water under the Republican River Compact, brought these actions alleging regulatory takings claims against the State and the DNR. The district court consolidated the claims and granted the State and the DNR’s motions to dismiss both of the appropriators’ causes of action. The Supreme Court affirmed, holding (1) the DNR’s streamflow administration did not result in a taking under the Nebraska Constitution because the Compact, as federal law, supersedes the appropriators’ property interests; and (2) the alleged failure of DNR to regulate ground water pumping did not amount to a taking because DNR does not have a duty to regulate ground water. View "Hill v. State" on Justia Law

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Medicine Creek LLC filed a request for a variance from the Middle Republican Natural Resources District’s (MRNRD) moratorium on new well drilling. MRNRD voted to deny the variance. Medicine Creek sought judicial review pursuant to Neb. Rev. Stat. 46-750 and the Administrative Procedure Act. The district court reversed, concluding that MRNRD’s decision was not supported by the evidence, did not conform to the law, and was therefore arbitrary. The Supreme Court reversed, holding (1) the order denying Medicine Creek’s request for a variance was judicial in nature and was appealable to the district court; and (2) the district court committed plain error by applying the wrong standard of review rather than the de novo standard. Remanded. View "Medicine Creek LLC v. Middle Republican Natural Resources District" on Justia Law

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The water appropriation in this case was a surface water right to divert a specified volume of water from the North Loup River to “be used for irrigation purposes only.” Appellant held the appropriation and the lands covered by it. The Nebraska Department of Natural Resources (Department) issued a notice of preliminary determination of nonuse of the appropriation to Appellant. The Department cancelled the appropriation in its entirety, concluding that the lands designated under the appropriation had not been irrigation for more than five consecutive years and that Appellant had failed to establish sufficient cause for nonuse. The Supreme Court affirmed the Department’s order of cancellation, holding that Appellant failed to establish sufficient cause to excuse its nonuse of the appropriation and that the Department’s decision was not arbitrary, capricious, or unreasonable. View "In re Appropriation A-7603" on Justia Law

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Plaintiff, the surface owner of various tracts of land in Sioux County, sued the alleged owners of severed mineral interests in those tracts, claiming that the defendants abandoned their interests because they did not comply with the requirements of Neb. Rev. Stat. 57-229 by failing to exercise publicly the right of ownership of the severed mineral interests. All of the defendants filed verified claims to the mineral interests prior to the action filed by Plaintiff. The district court concluded (1) the alleged mineral owners had either strictly complied or substantially complied with the requirements of section 57-229; and (2) the alleged mineral owners had not forfeited their mineral interests, except for one of the claims, which was terminated. Rice appealed, and two of the defendants cross-appealed as to the mineral interests that were terminated. The Supreme Court affirmed in part and reversed in part, holding (1) strict compliance with section 57-229 is mandatory; (2) several of the defendants abandoned their interests by not strictly complying with the statute, and therefore, the district court erred in failing to terminate their interests; and (3) the district court correctly terminated the remaining mineral interests. View "Rice v. Bixler" on Justia Law

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Nebraska Department of Natural Resources (NPPD) was the owner or lessee of three water appropriations to divert water from the Niobrara River for hydropower generation. In 2007, the Nebraska Department of Natural Resources (Department) issued closing notices to several hundred junior appropriators, including Joe McClaren Ranch, LLC and Weinreis Brothers (the junior appropriators), directing them to cease water diversions from the Niobrara in favor of NPPD’s senior appropriations. The junior appropriators challenged the Department’s administration of the Niobrara and sought to stay any future closing notices. After a second hearing on remand, the Department denied the junior appropriators’ claims. The Supreme Court affirmed, holding that the Department (1) erred in admitting certain evidence relating to the statutory procedure for cancellation of appropriations, but the error was harmless; (2) did not err in finding that the junior appropriators failed to prove NPPD had abandoned or statutorily forfeited its appropriations; (3) did not err in determining that it had property determined the flow demand for NPPD’s appropriations; and (4) did not err in failing to conduct a futile call analysis on the main stem of the Niobrara. View "In re 2007 Appropriations of Niobrara River Waters" on Justia Law

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The Nebraska Public Power District (NPPD) filed an application with the Department of Natural Resources (DNR) to appropriate additional surface water from the Niobrara River. The Middle and Lower Niobrara Natural Resources Districts (collectively, NRDs) and Thomas Higgins, who held senior existing and pending Niobrara River surface water appropriations, objected to the application. The DNR dismissed all objections sua sponte, concluding that the objectors lacked standing. The Supreme Court affirmed, holding that the DNR did not err in (1) dismissing the NRDs' objections for lack of standing because they failed to allege any legal right, title, or interest in the subject water of the Niobrara River and because the NRDs' allegations that the granting of the application would cause a portion of the Niobrara River Basin to be declared fully appropriated in the future were based on mere conjecture; and (2) finding that Higgins lacked standing, as Higgins failed to allege sufficient allegations of harm. View "In re Application A-18503" on Justia Law

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Plaintiff was the surface owner of land in Sioux County. Plaintiff sued the owners of severed mineral interests in that land under Nebraska's dormant mineral statutes to reacquire their allegedly abandoned interests. Mineral interests are deemed abandoned unless the "record owner" has taken certain steps to publicly exercise his ownership rights during the twenty-three years preceding the surface owner's suit. This appeal involved one defendant (Defendant), who asserted that she was the "record owner" of the mineral interests through the will of Decedent. The register of deeds still listed Decedent as the owner of the disputed mineral interests. The district court vested title to the disputed mineral interests in Plaintiff, concluding that Defendant was not a "record owner" of the mineral interests because the term "record owner" under the dormant mineral statutes meant only the person listed in the register of deeds in the county where the property was located. The Supreme Court reversed, holding that, for the reasons set forth in Gibbs Cattle Co. v. Bixler, the "record owner" of mineral interests includes an individual identified by probate records in the county where the interests are located. View "WTJ Skavdahl Land LLC v. Elliott " on Justia Law

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Plaintiff was the surface owner of various tracts of land. Plaintiff sued the owners of several mineral interests in those tracts under Nebraska's dormant mineral statutes to reacquire their allegedly abandoned interests. Mineral interests are deemed abandoned unless the "record owner" has taken certain steps to publicly exercise her ownership rights during the twenty-three years preceding the surface owner's suit. This appeal involved two Defendants. The district court vested title to the disputed mineral interests in Plaintiff. The Supreme Court reversed, holding (1) the "record owner" of mineral interests includes an individual identified by probate records in the county where the interests are located and need not be determined only from the register of deeds in the county where the interests are located; and (2) an amended complaint that adds, rather than changes, a new party defendant does not relate back to the original complaint. View "Gibbs Cattle Co. v. Bixler" on Justia Law

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Butler County Diary, LLC (BCD) requested a permit to install a liquid livestock manure pipeline under a public road. Read Township and Butler County cited two regulations it had adopted governing livestock confinement facilities in denying BCD's request. BCD challenged the regulations, alleging that the regulations were invalid and unenforceable. The district court ruled that the Township had the statutory authority to enact the regulations and that they were not preempted by the Livestock Waste Management Act or Nebraska's Department of Environmental Quality livestock waste control regulations. The Supreme Court affirmed, holding that the Township had the statutory authority to enact the pertinent regulations and the regulations were not preempted by state statute or regulation. View "Butler County Dairy, LLC v. Butler County" on Justia Law

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Junior river water appropriators Jack Bond and Joe McClaren Ranch filed a request for a hearing before the Nebraska Department of Natural Resources (Department), challenging the validity of the Department's administration of water in response to a call for administration placed by the Nebraska Public Power District (NPPD). The Department joined the matter as a party litigant against the junior appropriators. Following a hearing, the director of the Department determined that the water administration was proper and denied the junior appropriators' challenge to the sufficiency of the closing notices issued to upstream junior appropriators. The junior appropriators appealed. At issue on appeal was whether the issues of nonuse and abandonment alleged by the junior appropriators were properly before the Department. The Supreme Court reversed the order, holding that the Department erred in refusing to determine the junior appropriators' challenge to the validity of NPPD's appropriations. Remanded with directions to determine whether NPPD's appropriations had been abandoned or statutorily forfeited in whole or in part. View "Bond v. Neb. Pub. Power Dist." on Justia Law