Application A-16642, In re

• Decision Date: 30 November 1990
• Docket Number: No. 90-034,A-16642,90-034
• Citation: 236 Neb. 671,463 N.W.2d 591
• Parties: In re APPLICATIONNEBRASKA GAME AND PARKS COMMISSION, Appellee and Cross-Appellee, v. The 25 CORPORATION, INC., Appellant, Ainsworth Irrigation District, et al., Appellees and Cross-Appellants, City of Long Pine, Appellee and Cross-Appellee, Brown County Board of Commissioners, Appellee.
• Court: Nebraska Supreme Court

Page 591

463 N.W.2d 591

236 Neb. 671

In re APPLICATION A-16642.

NEBRASKA GAME AND PARKS COMMISSION, Appellee and Cross-Appellee, v. The 25 CORPORATION, INC., Appellant, Ainsworth Irrigation District, et al., Appellees and Cross-Appellants, City of Long Pine, Appellee and Cross-Appellee, Brown County Board of Commissioners, Appellee.

No. 90-034.

Supreme Court of Nebraska.

Nov. 30, 1990.

Syllabus by the Court

1. Constitutional Law: Statutes: Proof. The party claiming a statute to be unconstitutional has the burden of establishing its unconstitutionality.

2. Constitutional Law: Statutes: Presumptions. A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality.

3. Constitutional Law: Statutes. The Nebraska Supreme Court is obligated to endeavor to interpret a statute in a manner consistent with the Constitution.

4. Constitutional Law: Statutes. Unconstitutionality must be clearly established before a statute will be declared void.

5. Constitutional Law: Statutes. Neither constitutional nor statutory provisions are open to construction as a matter of course.

6. Constitutional Law. Construction of a constitutional provision is appropriate only when it has been demonstrated that the meaning of the provision is not clear and that construction is necessary.

7. Constitutional Law. Although the language of a constitutional provision is to be interpreted with reference to established laws, usage, and customs of the country at the time of its adoption, its terms and provisions are constantly expanded and enlarged to meet the advancing affairs of humankind.

8. Constitutional Law. It is a principle of constitutional interpretation that each and every clause in a constitution has been inserted for some useful purpose.

9. Constitutional Law: Waters. The adoption of Neb. Const. art. XV, § 6, did not do away with riparian rights.

10. Constitutional Law. Constitutional provisions should receive a broad and liberal interpretation.

11. Waters: Words and Phrases. Unappropriated water is that water which is available for appropriation because it is not subject to an existing appropriative right.

12. Administrative Law: Waters: Appeal and Error. The Nebraska Supreme Court's review of factual determinations made by the Director of Water Resources is limited to whether the director's determinations are supported by competent and relevant evidence and are not arbitrary, capricious, or unreasonable.

13. Waters. Absolute dependability of a water supply is not required in order to justify an appropriation; the supply need only be fairly continuous and dependable.

14. Administrative Law: Statutes: Appeal and Error. The meaning of a statute is a question of law, and the Nebraska Supreme Court is obligated to reach its conclusions on such questions independent of the determination made by an administrative agency.

15. Statutes. The meaning of a statute is ascertained, when possible, from the language of the act.

16. Statutes. Statutory language is to be considered in its plain, ordinary, and popular sense.

17. Statutes: Words and Phrases. "Necessary," when used in a statute, may mean anything from "indispensable" to "convenient."

18. Statutes: Appeal and Error. In construing a statute, the Nebraska Supreme Court must look to the statute's purpose and give it a reasonable construction which best achieves that purpose, rather than a construction which would defeat it.

19. Trial: Expert Witnesses. Determining the weight that should be given expert testimony is uniquely the province of the fact finder.

20. Administrative Law. Administrative bodies have only that authority specifically conferred upon them by statute or by construction necessary to achieve the purpose of the relevant act.

21. Administrative Law: Waters. When an instream flow application requests different flow rates at different locations along a single stream segment, the denial of the application as to one location is to be viewed as a reduction in the requested rate of flow as authorized by Neb.Rev.Stat. § 46-2,115 (Reissue 1988); any reduction in the length of the stream segment occasioned by such a denial is but incidental to the flow reduction, and the Director of Water Resources may define the stream segment under Neb.Rev.Stat. § 46-2,118(1) (Reissue 1988) in such a way as to reflect the appropriations as granted.

22. Administrative Law: Words and Phrases. A decision is arbitrary when it is made in disregard of the facts or circumstances and without some basis which would lead a reasonable person to the same conclusion.

23. Administrative Law: Words and Phrases. A capricious decision is one guided by fancy rather than by judgment or settled purpose; such a decision is apt to change suddenly; it is freakish, whimsical, humorsome.

24. Administrative Law: Words and Phrases. The term "unreasonable" can be applied to an administrative decision only if the evidence presented leaves no room for differences of opinion among reasonable minds.

25. Constitutional Law: Waters. Neb.Rev.Stat. §§ 46-2,107 through 46-2,119 (Reissue 1988), permitting instream flow appropriations, do not offend Neb. Const. art. XV, § 4, 5, or 6.

Robert L. Lepp, of McGill, Gotsdiner, Workman & Lepp, P.C., and Richard L. Anderson, of Croker, Huck, Kasher, Lanphier, DeWitt & Anderson, P.C., Omaha, for appellant.

William B. Cassel, of Cassel & Cassel, Ainsworth, for appellees City of Ainsworth, Zwiebel, and Improvement Com'n.

Rodney J. Palmer, of Palmer & Kozisek, P.C., Ainsworth, for appellees Irrigation Dist. and Development Ass'n.

Dana V. Baker, of Barney, Carter, Johnson & Baker, P.C., Lincoln, for appellee City of Long Pine.

Robert M. Spire, Atty. Gen., and Linda L. Willard, and Rodney M. Confer, of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, for appellee Nebraska Game and Parks Com'n.

Robert M. Spire, Atty. Gen., and LeRoy W. Sievers, Lincoln, for State of Neb.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT and FAHRNBRUCH, JJ.

CAPORALE, Justice.

I. INTRODUCTION

This is a direct appeal from an order of the Director of Water Resources partially granting the permit requested by applicant-appellee, Nebraska Game and Parks Commission (applicant), for an instream flow appropriation at Long Pine Creek. Objector-appellant, The 25 Corporation, Inc. (25 Corporation), and objectors-appellees and cross-appellants, the City of Ainsworth (Ainsworth), the Ainsworth Irrigation District and the Niobrara River Basin Development Association (hereinafter collectively referred to as Irrigation District), and Donald E. Zwiebel and the Niobrara Basin Environmental Improvement Commission (hereinafter collectively Zwiebel), challenge the order. These objectors-appellees and cross-appellants and the objector-appellant are hereafter referred to as the "complaining objectors." (We note that although Ainsworth and Zwiebel designate themselves as appellants, the first notice of appeal was filed by 25 Corporation. Therefore, Ainsworth and Zwiebel are not appellants but, rather, are appellees and cross-appellants. See Neb.Ct.R. of Prac. 1 C and 1 E (rev.1989).)

During the director's hearing, objector-appellee City of Long Pine (Long Pine) reached an understanding with the applicant, as the result of which Long Pine abandoned its objection in return for a stipulation and amendment of the application to reflect that, in accordance with their agreement, the water capable of being captured by Long Pine's municipal water supply facility is ground water and thus not subject to the applicant's appropriation. This stipulation and amendment was approved and accepted by the director over the objections of 25 Corporation and the Irrigation District. Although the Brown County Board of Commissioners objected to the application and is an appellee, it has filed no brief in this court; accordingly, we make no further reference to that entity.

After lengthy hearings, the director granted the application in part, as more particularly set forth in part II below. Together, the complaining objectors have lodged 32 assignments of error, which can be summarized as claiming that (1) the statutory scheme authorizing instream appropriations, Neb.Rev.Stat. §§ 46-2,107 through 46-2,119 (Reissue 1988), is unconstitutional under Neb. Const. art. XV, §§ 4, 5, and 6; (2) the director misinterpreted and misapplied § 46-2,115(1), thereby erroneously finding that there was sufficient unappropriated water available to meet the application; (3) the director misinterpreted § 46-2,115(2), thereby erroneously determining that the appropriation was necessary to maintain the instream use for which it was sought; (4) the director misinterpreted § 46-2,115(4), thereby erroneously approving an appropriation in excess of that allowed by the statute; (5) the director misinterpreted and misapplied §§ 46-2, 115(5) and 46-2,116, thereby erroneously concluding that the appropriation was in the public interest; (6) the director exceeded his authority by changing the upstream boundary of the stream segment from that set out in the application and by setting the new boundary in an arbitrary, capricious, and unreasonable manner; and (7) the director erred in agreeing to and in arbitrarily, capriciously, and unreasonably approving the stipulation between the applicant and Long Pine.

We hold the statutory scheme authorizing instream appropriations to be constitutional and affirm the director's order.

II. BACKGROUND

The application in question, A-16642, was filed on April 29, 1988. Therein, the applicant seeks a permit for an instream appropriation of water to maintain a naturally reproducing rainbow and brown trout fishery in Long Pine Creek. The creek is a 33-mile-long cold-water tributary of the Niobrara River and is the longest self-sustaining trout stream in Nebraska.

More specifically, the applicant seeks an instream flow appropriation for a segment of...