The Nebraska Public Power District (NPPD) filed with the Department of Natural Resources (DNR) an application to appropriate additional surface water from the Niobrara River. As relevant to this appeal, Middle Niobrara Natural Resources District and Lower Niobrara Natural Resources District (collectively NRD's) and Thomas Higgins each filed amended objections to the application. We note that during the pendency of this appeal, a fourth party who also held existing and pending water appropriations is now deceased and thus dismissed from this action. We therefore will refer only to the remaining three appellants. The DNR dismissed all objections sua sponte. The NRD's and Higgins appeal those dismissals. We affirm.
NPPD filed application A-18503 with the DNR on or about April 16, 2007. The application requested the appropriation of an additional 425 cubic feet per second (cfs) of natural flow from the Niobrara River to add to the 2,035 cfs already appropriated to NPPD in order to fulfill the entire capacity of the hydropower units at NPPD's hydropower facility, Spencer Dam. Notice of NPPD's application was published on March 15, 2012.
The NRD's and Higgins each filed objections to NPPD's application. The NRD's are political subdivisions of the State of Nebraska, charged with managing ground water within the borders of their districts; Higgins is the owner of real property in the Niobrara River Basin and, in relation to NPPD, holds senior existing and pending Niobrara River surface water appropriations.
As noted above, the objections and requests for hearings were dismissed sua sponte by the DNR. In the DNR's order of dismissal, the director concluded that the objectors lacked standing. In particular, the NRD's did not
The director concluded that Higgins' pending application did not confer standing because no legal right existed with a pending application. The director further found that even if those applications were granted and perfected, they, along with Higgins' existing appropriations, would be senior and upstream of A-18503. As such, the director did not find Higgins' allegations of harm credible. The director also noted that any allegation of harm by hypothetical taxation by a natural resources district was speculative and not distinguishable from harm caused to any other landowner within the natural resources district. Finally, the director noted the allegation that granting A-18503 was against the public interest was a conclusion of law and not an allegation of fact.
The NRD's and Higgins appealed.
The appellants assign as error, restated and renumbered, that the director (1) erred in concluding that the NRD's lacked a legally cognizable interest to confer standing to object, (2) erred in concluding that Higgins would not be adversely affected in a manner sufficient to confer standing to object, (3) applied an improper standard of review, and (4) failed to consider
In an appeal from a DNR order, we review whether the director's factual determinations are supported by competent and relevant evidence and are not arbitrary, capricious, or unreasonable.
A jurisdictional issue that does not involve a factual dispute presents a question of law.
The primary issue on appeal in this case is whether the DNR was correct in concluding that the appellants lacked standing. A party has standing to invoke a court's jurisdiction if it has a legal or equitable right, title, or interest in the subject matter of the controversy.
Under the doctrine of standing, a court may decline to determine merits of a legal claim because the party advancing it is not properly situated to be entitled to its judicial determination. The focus is on the party, not the claim itself.
Specifically, a litigant first must clearly demonstrate that it has suffered an injury in fact.
The appellants first assign the DNR erred in finding that the NRD's lacked standing. In its order, the DNR concluded that the NRD's lacked standing
The NRD's cite to the Nebraska Ground Water Management and Protection Act
These arguments are without merit. This court did find, in Middle Niobrara NRD, that a natural resources district was an "interested party" and had standing to challenge the DNR's designation of a river basin as fully appropriated. In Middle Niobrara NRD, this court noted that ordinarily a natural resources district lacked "water rights adversely affected" by a DNR order and that as such, a natural resources district would lack standing.
We disagree with the contention made by the NRD's that in the case at bar their interests are "substantially the same" as those that conferred standing in Middle Niobrara NRD.
And the reliance by the NRD's on federal case law holding that a "threatened" injury can be sufficient to establish standing is not persuasive. Nebraska case law is clear that an injury in fact must be "concrete," "actual and imminent," and "requires a more particularized harm to a more direct, identified interest."
Finally, the NRD's contend that the appropriation will preclude the use of that water for irrigation and limit their tax base. But such claim is speculative: We noted in Central Neb. Pub. Power and Irrigation Dist. that "[i]t is axiomatic that any use of a limited resource necessarily results in marginally less availability of that resource for potential use by others. An injury in fact, for standing purposes, requires a more particularized harm to a more direct, identified interest."
The DNR did not err in dismissing the objections by the NRD's for lack of standing. The appellants' first assignment of error is without merit.
The appellants next assign that the DNR erred in finding that Higgins lacked standing. The DNR found that Higgins claimed to hold current surface water appropriations and was an applicant for further Niobrara River appropriations. But the DNR concluded that Higgins failed to allege sufficient allegations of harm and thus did not have standing to object to A-18503.
In his objections, Higgins alleged that the granting of the application "may" increase his property taxes, and also that it "may" affect the value of his real property. Higgins further alleged that the granting of the application would affect his existing appropriations and would increase the cost of his pending applications.
We find that Higgins' allegations that the granting of the application "may" increase his taxes and affect the value of his real property are both speculative, and not "actual or imminent." As such, both are insufficient to confer standing. Nor are his allegations that the granting of the application will affect his existing appropriations and increase the cost of his pending applications sufficient to confer standing. Those allegations fail to explain how his rights would be affected when all are both upstream and senior to the appropriation requested in A-18503. Moreover, as noted above, we held in Central Neb. Pub. Power and Irrigation Dist. that the fact the application might result in less water overall in the Niobrara River for Higgins' use is not a sufficiently "particularized harm to a more direct, identified interest."
The DNR did not err in dismissing Higgins' objections for lack of standing. The
In the appellants' second assignment of error, they argue that the DNR applied an incorrect standard of review when it dismissed the appellants' objections for lack of standing because the DNR failed to assume the allegations were true and to view them in a light most favorable to the appellants.
We reject the contention that the appropriate standard was not utilized by the DNR in assessing the appellants' objections. The appellants lack standing, but not because the DNR failed to assume that the allegations were true and did not view them in a light most favorable to the appellants. Rather, they lack standing because even when the allegations are assumed as true and viewed in a light most favorable to the appellants, the allegations failed to allege either an interest or an injury sufficient to confer standing. As we concluded above, the allegations of the NRD's failed to establish an interest and the allegations of all the appellants were speculative, not alleged to be actual or imminent, and were not a sufficiently "particularized harm to a more direct, identified interest."
In the appellants' third assignment of error, they argue that Neb. Const. art. XV, § 6, allows the DNR director to deny an application to appropriate water if "`demanded by the public interest,'" and further contend that A-18503 is not in the public interest.
But the fact that the granting of an application might not be in the public interest says nothing about whether the appellants have standing in this case. This court has specifically held that natural resources districts cannot assert the public interest.
The DNR's dismissal of the appellants' objections for lack of standing is affirmed.
AFFIRMED.
Stephan, J., concurring in part, and in part dissenting.
I concur in the majority opinion to the extent that it affirms the dismissal by the Department of Natural Resources (Department) of the two natural resources district (NRD) appellants for lack of standing. But I dissent from the majority's similar disposition with respect to appellant Thomas Higgins. I write separately to state my reasons for both positions.
Our holding in Middle Niobrara NRD v. Department of Nat. Resources
I am not persuaded that we should expand this exception to recognize the standing of an NRD to object to an appropriation which "may result in a fully appropriated determination by [the Department] in the future which will cause increased costs," as the NRD appellants allege in this case. As the majority correctly notes, the alleged injury in fact necessary to confer standing cannot be conjectural or hypothetical and must be capable of redress by a favorable decision in the proceeding.
Given the complexity of water regulation in Nebraska, I cannot endorse a legal principle which requires a court to predict whether a particular surface water appropriation would "trigger" a subsequent fully appropriated designation in order to determine whether an NRD has standing to object to the appropriation.
Finally, it is my view that it is not the proper role of an appellate court to engage in the calculus of whether a river basin would become fully appropriated under particular factual circumstances in advance of a determination of that issue by the Department. The Act requires the Department to annually evaluate "the expected long-term availability of hydrologically connected water supplies for both
For these reasons, I agree with the conclusion of the majority that the Department did not err in concluding that the NRD appellants lacked standing to challenge the NPPD application.
Unlike the NRD appellants, Higgins' claim to standing is based on his own water rights. Specifically, he alleges that he holds four surface water appropriations upstream from NPPD's facility and that he has a pending application for another appropriation. These allegations identify a specific legally protectable interest. The key inquiry with respect to standing is whether Higgins has adequately alleged that granting NPPD's application would cause an injury in fact to that interest.
Some of Higgins' allegations fall short of the mark in this regard. His allegation that the requested NPPD appropriation "is contrary to the public interest" does not allege any particularized injury to his interests as distinguished from that of the public at large. And his allegations that granting the application "may increase his property taxes" and "may adversely impact the value of his real property, and real estate values" throughout the basin are clearly speculative.
But Higgins also alleges that granting the application "will adversely impact his existing appropriations" and "will preclude or otherwise increase the cost of" his pending application for an additional appropriation. While these allegations provide no explanation as to how the appropriation would adversely affect Higgins' water rights, I regard them as sufficient notice pleading to preclude summary dismissal for lack of standing. As noted in the separate dissent, we held in Ponderosa Ridge LLC v. Banner County
In an appeal from a district court's order sustaining a motion to dismiss a civil action, we conduct a de novo review in which we accept all the factual allegations in the complaint as true and draw all reasonable inferences for the nonmoving party.
MCCORMACK, J., joins in this concurrence and dissent.
CONNOLLY, J., dissenting.
I dissent from the majority opinion's holding that the appellants lack standing to object to the application of the Nebraska Public Power District (NPPD). The majority opinion ignores evidence of imminent harm that will result from an approval of the application. It ignores our own case law recognizing that landowners had standing in similar cases. And it misconstrues our case law to create inappropriate hurdles to standing.
Under Neb.Rev.Stat. § 61-206 (Reissue 2009), the Department of Natural Resources (Department) has jurisdiction to hear and adjudicate all "complaints, petitions, or applications" in any matter pertaining to water rights for irrigation, power, or other beneficial purposes, except where its authority is limited by statute.
The Department's regulations define adjudicative proceedings to include cases to approve applications or petitions. The regulations also define applications to include an application to appropriate water under Neb.Rev.Stat. § 46-233 or § 46-259 (Reissue 2010).
In addition, the regulations define an "interested person" in a contested case as one "who is or could be adversely affected in a legally cognizable way by the outcome of a proceeding."
The director reasoned that NPPD's calls affect only upstream junior appropriators. That is, a call by NPPD could never shut off an upstream senior appropriator's superior right to use surface water. So, he concluded that only an upstream junior appropriator with a priority date after April 2007 could have standing to object to NPPD's application because only such an appropriator could be subject to a call to satisfy NPPD's latest appropriation.
The director also determined that the NRDs lacked standing to challenge NPPD's application. We have previously held that affected natural resources districts have standing to challenge a fully appropriated designation for a river basin because it triggers duties for the districts that require them to spend public funds and levy taxes to taxpayers in their districts.
NPPD's application to appropriate an additional 425 cubic feet per second (cfs) of water to produce hydropower is a significant enlargement of its previous appropriations. By way of comparison, in setting the limits for irrigation appropriations, Neb.Rev.Stat. § 46-231 (Reissue 2010) provides that surface water allotments "shall not exceed one cubic foot per second for each seventy acres of land and shall not exceed three acre-feet in the aggregate during one calendar year for each acre of land for which such appropriation had been made."
Comparing NPPD's requested appropriation to irrigation allotments puts its size in perspective. There are 7.48 gallons of water in a cubic foot, or 748 gallons in 100 cubic feet.
It doesn't require a math wiz to know that NPPD's requested appropriation is a lot of water. And, if granted, the appropriation will have a significant adverse effect on the availability of water for future upstream appropriations. It is true that an appropriation to produce hydropower does not remove water from the river. But like instream appropriations, NPPD's appropriation, if approved, is an allotment that must be satisfied before junior appropriators can divert water from the stream.
Yet despite the huge volume of water that NPPD requested, and despite a statutory mandate requiring the Department to promptly act on an appropriation application for the development of water power,
We have set out the contours of standing many times:
Here, both Higgins and the NRDs have alleged sufficient facts to show that they would be adversely affected by the Department's approval of NPPD's application. Higgins alleged that his February 2007 application for an appropriation is still pending. But if the Department determines that the Lower Niobrara River Basin is fully appropriated, it must place an immediate stay on any new appropriations, including Higgins' request.
In addressing the question of who, if not the appellants, would have standing, the Department claimed at oral arguments that an appropriator with a later priority date than NPPD's application date existed. Because that appropriator would be subject to a call to satisfy NPPD's newest appropriation, it would have standing to object. Leaving aside whether the existence of an upstream junior appropriator is plausible, NPPD's application shows that if its appropriation is approved, it is highly unlikely that this most junior appropriator could obtain enough water to dependably irrigate 70 acres of corn. If not, the river basin would be fully appropriated. And this result is illustrated by NPPD's own flow rates at Spencer Dam.
In NPPD's application to use the river's natural flow for power, it provided a chart with the daily mean (average) flow rates through its hydropower units at Spencer Dam for the years 2004 through 2006. As the majority opinion states, NPPD already has existing appropriations for surface water that equal 2,035 cfs. If the Department grants NPPD's application for an additional 425 cfs, it will have total appropriations of 2,460 cfs. But NPPD's flowchart shows that for the 3 documented years, 2,460 cfs was the highest average daily flow rate that ever ran through its hydropower units and that Spencer Dam rarely received that flow rate.
Specifically, in 2004, there were no days that Spencer Dam received an average flow rate of 2,460 cfs. In 2005, there were only 4 days that the dam received an average flow rate of 2,460 cfs. In 2006, there were only 2 days that the dam received an average flow rate of 2,460 cfs. In total, Spencer Dam received an average daily flow rate of 2,460 cfs for only 6 days out of 3 years. So if NPPD's appropriations had totaled 2,460 cfs during the years 2004 through 2006, the river's streamflow likely would have been insufficient to conclude that enough water was available for an upstream, junior appropriator to meet the Department's irrigation standards.
It is true that the Department may not determine that the surface water of a river is fully appropriated by comparing a senior appropriation right to the streamflow values at a specific diversion point or streamflow gauge.
Moreover, in 2007, the Department closed the diversion rights of about 400 upstream junior appropriators to satisfy NPPD's existing appropriations of 2,035 cfs.
But Spencer Dam sits downstream near the eastern end of the Niobrara River.
Moreover, even if the Department did not declare that the river basin was fully appropriated, a farmer or rancher with an existing appropriation obviously has an interest in whether he can ever seek an additional appropriation. And the Department's approval of NPPD's application will greatly decrease the availability of water for future appropriations.
This court has never held that a landowner with an existing appropriation must show a definite injury to have standing to challenge new appropriations from the same water source. Our holdings on standing in water cases have generally been confined to concluding that a political subdivision lacks standing to challenge an application when it is representing the interests of third parties, instead of its own interests.
In contrast, we have explicitly recognized that landowners with an existing appropriation can object to a later application to appropriate water from the same water source. For example, in Ponderosa Ridge LLC v. Banner County,
Similarly, in Hagan v. Upper Republican NRD,
Specifically, they alleged that "there is less water available for them for future requests in that the now declining water table of the aquifer will decline further by virtue of the withdrawal of the water by the Defendants."
The appellants cite all of these cases, and they are directly on point. Yet the majority opinion fails to address them. Instead, the opinion relies on a statement from Central Neb. Pub. Power and irrigation Dist v. North Platte NRD.
In that case, a public power and irrigation district (Central) operated a large reservoir that was used for several purposes, including to distribute water for irrigation and to generate hydropower. Central objected to a natural resources district's proposed regulations to reduce ground water pumping in the basin of one of its tributaries. Central argued that the reduction was inadequate to restore the tributary's historic streamflow. It sought a court order reversing the natural resources district's decision and directing it to impose greater restrictions. The court concluded that Central was not in the district's territory and that, as a surface water appropriator, it was not affected by ground water appropriations in the district.
On appeal, we discussed Ponderosa Ridge LLC, Hagan, and two other cases to illustrate when a party has or has not alleged a sufficient interest to confer standing. We contrasted our holdings that political subdivisions lacked standing when they do not assert their own interests with our holdings that landowners with water interests to protect do have standing to object. Regarding Central's broad claim that ground water pumping in the tributary's basin was destroying the reservoir, we concluded that the allegation of an injury was too attenuated and that its theory of causation could not be limited to any direct tributary. We also noted that it was unclear that an order requiring a further reduction of ground water pumping would increase the water available for Central's reservoir because it would first be available to the tributary's surface water appropriators.
Our primary holding, however, was that Central lacked standing because it was not asserting its own interests. Instead, we concluded that it was asserting the interests of the public or its constituents for whom it held appropriations and
The majority opinion's reliance on this italicized language is misplaced. Whether Central had sufficiently alleged an injury to its constituents was not a necessary conclusion to our holding that it lacked standing because it was not asserting an injury to its own interests. As we know, a case is not authority for any point made that was not necessary to decide the case.
But even if it were not dicta, the statement should not be interpreted to require a showing of actual harm from a later appropriation. We specifically discussed Ponderosa Ridge LLC and Hagan as examples of when a party has alleged a sufficient interest to confer standing. Because we did not disturb those holdings, the majority opinion incorrectly relies on a single statement that is inconsistent with the rest of the opinion. Instead, we should recognize that our concern was Central's failure to allege a connection between ground water pumping in another area to its own injury. Those waters may or may not have been hydrologically connected, but the appropriations were certainly not from the same water source, as in the previous cases that we cited with approval. So this statement can only be applied to an objector with an existing appropriation from the same water source by taking it out of context.
Moreover, the probable future injury that existed in Ponderosa Ridge LLC and Hagan is also sufficient to confer standing under the standing rules that we have adopted from federal courts.
Federal courts have repeatedly held that an actual or threatened injury is sufficient to confer standing.
Obviously, the Legislature did not intend for the Department's actions to go unchallenged, and § 61-206 clearly contemplates some interested party's having an opportunity to be heard. To require a party in a water case to allege an actual injury, as distinguished from the party's own interest in the same water source that will probably be injured, is an impossible burden: "[W]ater use on most streams is like the federal budget. No one really knows how much water is actually being put to beneficial use by how many people."
The Department's definition of "interested person" distinguishes this case from those in which we have interpreted this term in a statute to mean a person with common-law standing.
Given the legislative intent that someone have standing to object and the Department's own regulations, I believe that our injury-in-fact requirement for standing should be interpreted to the fullest extent in water cases. I do not believe that recognizing standing here would mean that the appellants could object to every application for an appropriation. In most circumstances,
Moreover, to apply our standing rules more strictly than federal courts to avoid a challenge here is particularly worrisome because the appellants can never challenge the appropriation once the Department approves it. The majority knows that neither the appellants nor anyone else can challenge this appropriation request once it is approved. We have held that such challenges are impermissible collateral attacks.
That designation will impose duties on the affected NRDs that will obviously affect their resident taxpayers. It will also greatly increase the odds that even if upstream farmers or ranchers can obtain another appropriation in the future, they will pay NPPD for their use of the water. And because of our collateral attack rule, the appellants' standing to challenge a fully appropriated designation will be meaningless.
One more point, and I am done. We have recognized that the stage of the litigation is an important factor in deciding standing. In Hagan, for example, the fact that the litigants were still at the pleading stage was specifically tied to our conclusion that the landowners had standing:
In another water case, we have recognized that at the pleading stage, a determination of standing depends upon whether a plaintiff has alleged an injury in fact and whether discovery is likely to reveal evidence of that injury.
The appellants correctly contend that our decisions are consistent with U.S. Supreme Court precedent: "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we
The stage of the proceeding is particularly relevant here because the Department is purported to be considering amendments to its regulations. So the appellants have no way of accurately predicting how NPPD's new appropriation could affect the river basin's status if the Department grants it. But they know what is likely to occur under the Department's existing regulations.
Obviously, discovery could reveal that the appellants' challenge is without merit or that the alleged threat of harm is remote. For instance, discovery might show that the river's average flow rates are much greater than indicated by NPPD's flowchart at Spencer Dam, or that the Department has amended its regulations in a way that makes a fully appropriated determination unlikely even if the Department approves NPPD's application.
But contrary to the reasoning of the majority opinion, bulletproof certainty is not required at the pleading stage of litigation. And if a Nebraska farmer or rancher with an existing interest in the availability of water in a stream doesn't have standing to object to a large appropriation from that stream, who does?
As the separate dissent and concurrence illustrates, the majority's abandonment of our standing rules and twisting of our case law flow from the majority's fear that recognizing standing here will open the litigation floodgates in water disputes. That fear is unfounded. I am not contending that the appellants should or will prevail. Nor am I contending that every Nebraskan should have standing to object to an appropriation application. But standing is determined as it exists when the litigation is commenced.
Because the Department's actions affect so many lives and livelihoods, I believe this result is a mistake. The majority's holding will allow the Department to act with impunity because its grant of new appropriations will be immune from adversarial challenge and judicial review. The majority's opinion puts the appellants in a legal straitjacket. And this result is not required by, nor consistent with, our previous decisions on standing in water cases or the Department's own regulations.
In sum, the information submitted with NPPD's own application is sufficient to show at the pleading stage that the alleged injury is imminent, not remote or speculative. But to affirm the director's order, the majority opinion has ignored NPPD's flowchart; ignored the Department's own actions and regulations; distorted our standing standards in a manner that will preclude standing in many future cases; and ignored our case law upholding standing for landowners in similar cases. Its conclusion that the appellants' alleged injury is too speculative rests almost entirely
