State ex rel. Douglas v. Sporhase, 43206

Citation305 N.W.2d 614,208 Neb. 703
Decision Date08 May 1981
Docket NumberNo. 43206,43206
Parties, 12 Envtl. L. Rep. 20,246 STATE of Nebraska ex rel. Paul L. DOUGLAS, Attorney General, Appellee, v. Joy SPORHASE et al., Appellants.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. Constitutional Law. In order for the commerce clause of the U.S. Constitution to apply to state regulation of a commodity, that commodity must be an article of commerce.

2. Waters. Nebraska's common law of ground water permits the overlying landowner to appropriate subterranean waters found under his land, but he cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land which he owns, especially if such use is injurious to others who have substantial rights to the waters; and if the natural underground supply is insufficient for all owners, each is entitled to a reasonable proportion of the whole.

3. Constitutional Law: Waters. The Nebraska Constitution declares water for irrigation purposes in the State of Nebraska to be a natural want.

4. Legislature: Waters. Since the Nebraska common law of ground water permits use of the water only on the overlying land, legislative action is necessary to allow for transfers off the overlying land.

5. Legislative Power: Waters. The Legislature has the power to determine public policy with regard to ground water.

6. Legislature: Waters. Ground water may be transferred from the overlying land only with the consent of and to the extent prescribed by the public through its elected representatives.

7. Waters. Free transfer and exchange of ground water in a market setting have never been permitted in this state.

8. Waters. The public may limit or deny the right of private parties to freely use the water when it determines that the welfare of the state and its citizens is at stake.

9. Waters. Nebraska ground water is not an article of commerce.

10. Waters. Since water is the only natural resource absolutely essential to human survival, the application of rules designed to facilitate commerce in less essential resources to the transfer of water must be done, if at all, with extreme caution.

11. Constitutional Law: Statutes: Waters. Since ground water in Nebraska is not an article of commerce, the commerce clause of the U. S. Constitution does not apply to Neb.Rev.Stat. § 46-613.01 (Reissue 1978).

12. Waters: Constitutional Law. Neb.Rev.Stat. § 46-613.01 (Reissue 1978) does not deprive affected persons of liberty or property without due process of law.

13. Legislative Delegation. The Legislature cannot delegate its powers to make a law, but it can make a law to become operative on the happening of a certain contingency or on an ascertainment of fact upon which the law intends to make its own action depend.

14. Waters. The reciprocity provision of Neb.Rev.Stat. § 46-613.01 (Reissue 1978) merely states one of several conditions which must be satisfied before a permit to transfer ground water out of state may issue.

15. Waters. Neb.Rev.Stat. § 46-613.01 (Reissue 1978) sets up a reasonable classification of persons which is reasonably related to a legitimate state interest in preserving, for the beneficial use of its citizens, Nebraska's underground water supply, and it operates equally on all members of the affected class.

Peter E. Schoon, Jr. and George M. Zeilinger of Padley & Dudden, P. C., Ogallala, for appellants.

Steven C. Smith, Sp. Asst. Atty. Gen., of Van Steenberg, Brower, Chaloupka, Mullin & Holyoke, Gering, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

WHITE, Justice.

Appellants own adjacent tracts of land in Chase County, Nebraska, and in Phillips County, Colorado. A well physically located on the Nebraska tract pumps ground water for the purpose of irrigating crops on both the Nebraska tract and the Colorado tract. Defendants' predecessor in title registered the well with the State of Nebraska on January 18, 1971, as required by Neb.Rev.Stat. § 46-602 (Reissue 1978). However, neither the defendants nor their predecessor in title applied to the Nebraska Department of Water Resources for a permit to transport ground water from the Nebraska well across the border into Colorado as required by Neb.Rev.Stat. § 46-613.01 (Reissue 1978).

The State of Nebraska brought this action in the District Court of Chase County to enjoin defendants from transporting Nebraska ground water into Colorado without a permit. After trial on the merits, the District Court issued the injunction, holding that § 46-613.01 does not violate the commerce clause of U.S.Const. Art. I, § 8, since under Nebraska law water is not an article of commerce. The District Court also held that even if ground water is an article of commerce, the statute does not impose an unreasonable burden of interstate commerce. We affirm.

We start our analysis with the assumption that if the commerce clause is to apply to a state statute regulating the interstate transfer of a commodity, that commodity must be an "article of commerce." The term "commerce" implies that the commodity must be capable of being reduced to private possession and then exchanged for goods or services of the same or similar economic value. An analysis of Nebraska case law and statutes demonstrates that Nebraska law has never considered ground water to be a market item freely transferable for value among private parties, and therefore not an article of commerce.

The first Nebraska case to consider the overlying landowner's proprietary interest in water under his land is Olson v. City of Wahoo, 124 Neb. 802, 248 N.W. 304 (1933). The Olson court specifically rejected the "English rule" of rights in ground water, which recognizes absolute ownership of ground water in the overlying landowner. Instead, the court adopted a slightly modified version of the more restrictive American rule of "reasonable use"; "The American rule is that the owner of land is entitled to appropriate subterranean waters found under his land, but he cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land which he owns, especially if such use is injurious to others who have substantial rights to the waters, and if the natural underground supply is insufficient for all owners, each is entitled to a reasonable proportion of the whole, and while a lesser number of states have adopted this rule, it is, in our opinion, supported by the better reasoning." Id. at 811, 248 N.W. at 308. The "pure" American rule, as stated by other authorities at the time, did not include the concept of sharing in times of shortage, and the Olson court's inclusion of that concept demonstrates its view that water is a unique commodity subject to state regulation to assure that it is available to everyone in the state in relation to their need, rather than their ability to pay for it.

The Nebraska Constitution declares water for irrigation purposes in the State of Nebraska to be a natural want. Neb.Const. Art. XV, § 4. The decades of the 1930's and 1940's saw a quantum expansion in Nebraska of the use of ground water for irrigation. See Aiken, Nebraska Ground Water Law and Administration, 59 Neb.L.Rev. 917 (1980). Legislative recognition of the state's power and the corresponding need to manage the state's ground water resources began in 1957 when the Legislature declared "that the conservation of ground water and the beneficial use thereof are essential to the future well-being of this state." Neb.Rev.Stat. § 46-601 (Reissue 1978), and enacted statutes requiring well registration, well-spacing, and filling of abandoned wells. Neb.Rev.Stat. §§ 46-602 and 46-609 (Reissue 1978).

Transfer of ground water was considered by the Legislature in 1963. Neb.Rev.Stat. §§ 46-638 through 46-650 (Reissue 1978), enacted that year, and § 46-654, enacted in 1965, granted only to cities, villages, and municipal corporations the right to transport ground water out of its basin of origin for the purpose of supplying urban water needs. Since the Nebraska common law of ground water permitted use of the water only on the overlying land, legislative action was necessary to allow for transfers off the overlying land, even for as pressing a need as supplying urban water users.

Metropolitan Utilities Dist. v. Merritt Beach Co., 179 Neb. 783, 799-800, 140 N.W.2d 626, 636 (1966), confirmed that "(u)nderground waters, whether they be percolating waters or underground streams, are a part of the waters referred to in the Constitution as a natural want.... (I)t is becoming more important and extremely necessary that regulation and control of all sources of water supply be attained." That court held that it is "the right of the Legislature, unimpaired, to determine the policy of the state as to underground waters and the rights of persons in their use." Id. at 801, 140 N.W.2d at 637. The opinion clearly held that the Legislature has the power to determine public policy with regard to ground water and that it may be transferred from the overlying land only with the consent of and to the extent prescribed by the public through its elected representatives.

Only a year after the decision in the Metropolitan case, the Legislature enacted the statute at issue in this case, § 46-613.01, dealing with transfer of Nebraska ground water across state lines. The statute allows such transfers conditioned on the receipt of a permit from the director of the Department of Water Resources, who may grant the permit if the transfer "is reasonable, is not contrary to the conservation and use of ground water, and is not otherwise detrimental to the public welfare," and if the receiving state "grants reciprocal rights" providing for transfer of ground water from that state into Nebraska.

The parties concede that Colorado forbids the transfer of ground water outside its borders and has no reciprocity provision in its statute. Neither the courts nor the...

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  • Sporhase v. Nebraska Douglas
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2 books & journal articles
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    ...to Professor Rose for alerting me to the historical context of Sporhase. (267.) Id. (268.) Id. (269.) State ex rel. Douglas v. Sporhase, 305 N.W.2d 614, 616 (Neb. 1981), rev'd, 458 U.S. 941 (270.) Id.; Dale Russakoff, Wheat Farmer Stuns the West with Water Suit, WASH. POST (Sept. 12, 1982),......
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