458 U.S. 941 (1982), 81-613, Sporhase v. Nebraska ex rel. Douglas

Docket Nº:No. 81-613
Citation:458 U.S. 941, 102 S.Ct. 3456, 73 L.Ed.2d 1254
Party Name:Sporhase v. Nebraska ex rel. Douglas
Case Date:July 02, 1982
Court:United States Supreme Court
 
FREE EXCERPT

Page 941

458 U.S. 941 (1982)

102 S.Ct. 3456, 73 L.Ed.2d 1254

Sporhase

v.

Nebraska ex rel. Douglas

No. 81-613

United States Supreme Court

July 2, 1982

        Argued March 30, 1982

        APPEAL FROM SUPREME COURT OF NEBRASKA

        Syllabus

        A Nebraska statute provides that any person who intends to withdraw groundwater from any well located in the State and transport it for use in an adjoining State must obtain a permit from the Nebraska Department of Water Resources. If the Director of Water Resources finds that such withdrawal is reasonable, not contrary to the conservation and use of groundwater, and not otherwise detrimental to the public welfare, he will grant the permit if the State in which the water is to be used grants reciprocal rights to withdraw and transport groundwater from that State for use in Nebraska. Appellants jointly own contiguous tracts of land in Nebraska and Colorado, on which a well on the Nebraska tract pumps groundwater for irrigation of both the Nebraska and Colorado tracts, but they never applied for the permit required by the statute. Appellee brought an action in a Nebraska state court to enjoin appellants from transferring the water across the border without a permit. Rejecting the defense that the statute imposed an undue burden on interstate commerce, the trial court granted the injunction. The Nebraska Supreme Court affirmed.

       [102 S.Ct. 3457] Held:

        1. Ground water is an article of commerce, and therefore subject to congressional regulation. Pp. 945-954.

        (a) Although appellee's claimed greater ownership interest in groundwater than in certain other natural resources may not be irrelevant to Commerce Clause analysis, it does not remove Nebraska groundwater from such scrutiny, since appellee's argument is still based on the legal fiction of state ownership. Pp. 945-952.

        (b) The States' interests in conserving and preserving scarce water resources in the arid Western States clearly have an interstate dimension. The agricultural markets supplied by irrigated farms provide the archtypical example of commerce among the States for which the Framers of the Constitution intended to authorize federal regulation. Here, the multistate character of the aquifer underlying appellants' tracts of land, as well as parts of Texas, New Mexico, Oklahoma, and Kansas, demonstrates that there is a significant federal interest in conservation as well as in fair allocation of diminishing water resources. Pp. 952-954.

        2. The reciprocity requirement of the Nebraska statute violates the Commerce Clause as imposing an impermissible burden on interstate

Page 942

commerce. While the first three conditions set forth in the statute for granting a permit -- that the withdrawal of the groundwater be reasonable, not contrary to the conservation and use of groundwater, and not otherwise detrimental to the public welfare -- do not, on their faces, impermissibly burden interstate commerce, the reciprocity provision operates as an explicit barrier to commerce between Nebraska and its adjoining States. Nebraska therefore has the initial burden of demonstrating a close fit between the reciprocity requirement and its asserted local purpose. Such requirement, when superimposed on the first three restrictions, fails to clear this initial hurdle, since there is no evidence that it is narrowly tailored to the conservation and preservation rationale. Thus, it does not survive the "strictest scrutiny" reserved for facially discriminatory legislation. Pp. 954-958.

        3. Congress has not granted the States permission to engage in groundwater regulation that would otherwise be impermissible. Although there are 37 federal statutes and a number of interstate compacts demonstrating Congress' deference to state water law, they do not indicate that Congress wished to remove federal constitutional restraints on such state law. Neither the fact that Congress has chosen not to create a federal water law to govern water rights involved in federal water projects nor the fact that Congress has been willing to let the States settle their differences over water rights through mutual agreement constitutes persuasive evidence that Congress consented to the unilateral imposition of unreasonable burdens on commerce. Pp. 959-960.

        208 Neb. 703, 305 N.W.2d 614, reversed and remanded.

        STEVENS, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which O'CONNOR, J., joined, post, p. 961.

Page 943

        STEVENS, J., lead opinion

        JUSTICE STEVENS delivered the opinion of the Court.

       Appellants challenge the constitutionality of a Nebraska statutory restriction on the withdrawal of groundwater from any well within Nebraska intended for use in an adjoining State. The challenge presents three questions under the Commerce Clause:1 (1) whether groundwater is an article of commerce and therefore subject to congressional regulation; (2) whether the Nebraska restriction on the interstate transfer of groundwater imposes an impermissible burden on commerce; and (3) whether Congress has [102 S.Ct. 3458] granted the States permission to engage in groundwater regulation that otherwise would be impermissible.

Page 944

        Appellants jointly own contiguous tracts of land in Chase County, Nebraska, and Phillips County, Colorado. A well physically located on the Nebraska tract pumps groundwater for irrigation of both the Nebraska tract and the Colorado tract. Previous owners of the land registered the well with the State of Nebraska in 1971, but neither they nor the present owners applied for the permit required by Neb.Rev.Stat. § 46-613.01 (1978). That section provides:

Any person, firm, city, village, municipal corporation or any other entity intending to withdraw groundwater from any well or pit located in the State of Nebraska and transport it for use in an adjoining state shall apply to the Department of Water Resources for a permit to do so. If the Director of Water Resources finds that the withdrawal of the groundwater requested is reasonable, is not contrary to the conservation and use of groundwater, and is not otherwise detrimental to the public welfare, he shall grant the permit if the state in which the water is to be used grants reciprocal rights to withdraw and transport groundwater from that state for use in the State of Nebraska.

        Appellee brought this action to enjoin appellants from transferring the water across the border without a permit.2 The trial court rejected the defense that the statute imposed an undue burden on interstate commerce and granted the injunction. The Nebraska Supreme Court affirmed. 208 Neb. 703, 305 N.W.2d 614 (1981). It held that, under Nebraska law, groundwater is not "a market item freely transferable for value among private parties, and therefore [is] not an article of commerce." Id. at 705, 305 N.W.2d at

Page 945

616.3 The Chief Justice, while agreeing that the statutory criteria governing the transfer of water to an adjoining State did not violate the Commerce Clause, dissented on the narrow ground that appellee violated both the Federal and Nebraska Constitutions by attempting

to absolutely prohibit the transfer of water, without regard to its need or availability, based solely upon the acts of another state over which citizens of this state have no control.

        Id. at 713, 305 N.W.2d at 20.

        I

       In holding that groundwater is not an article of commerce, the Nebraska Supreme Court and appellee cite as controlling precedent Hudson County Water Co. v. McCarter, 209 U.S. 349 (1908). In that case, a New Jersey statute prohibited the interstate transfer of any surface water located within the State.4 The Hudson County Water Co. nevertheless contracted with New York City to supply one of its boroughs with water from the Passaic River in New Jersey. The State Attorney General sought from the New Jersey courts an injunction against fulfillment of the contract. Over the water company's objections that the statute impaired the obligation of contract, took property without just compensation, interfered with interstate commerce, denied New York citizens the privileges afforded New Jersey citizens, and denied New York citizens the equal protection of the laws, [102 S.Ct. 3459] the injunction was granted. This Court, in an opinion by Justice Holmes, affirmed.

Page 946

        Most of the Court's opinion addresses the just compensation claim. Justice Holmes refused to ground the Court's holding, as did the New Jersey state courts,5 on "the more or less attenuated residuum of title that the State may be said to possess." Id. at 355. For the statute was justified as a regulatory measure that, on balance, did not amount to a taking of property that required just compensation. Putting aside the "problems of irrigation," the State's interest in preserving its waters was well within its police power.6 That interest was not dependent on any demonstration that the State's water resources were inadequate for present or future use. The State "finds itself in possession of what all admit to be a great public good, and what it has it may keep and give no one a reason for its will." Id. at 357.

        Having disposed of the just compensation claim, Justice Holmes turned very briefly to the other constitutional challenges.

Page 947

In one paragraph, he rejected the Contract Clause claim. In the remaining paragraph of the opinion, he rejected all the other defenses. His treatment of the Commerce Clause challenge consists of three sentences:

A man cannot acquire a right to property by his desire to use it in commerce among the States. Neither can he enlarge his otherwise limited...

To continue reading

FREE SIGN UP