Applications 15145, 15146, 15147, and 15148 of Little Blue Natural Resources Dist., In re

• Decision Date: 01 March 1985
• Docket Number: No. 84-175,84-175
• Parties: In re APPLICATIONS 15145, 15146, 15147, AND 15148 OF the LITTLE BLUE NATURAL RESOURCES DISTRICT. BASIN ELECTRIC POWER COOPERATIVE, Appellant, v. LITTLE BLUE NATURAL RESOURCES DISTRICT et al., Appellees.
• Court: Nebraska Supreme Court

Page 500

363 N.W.2d 500

219 Neb. 372

In re APPLICATIONS 15145, 15146, 15147, AND 15148 OF the LITTLE BLUE NATURAL RESOURCES DISTRICT.

BASIN ELECTRIC POWER COOPERATIVE, Appellant, v. LITTLE BLUE NATURAL RESOURCES DISTRICT et al., Appellees.

No. 84-175.

Supreme Court of Nebraska.

March 1, 1985.

Syllabus by the Court

1. Pretrial Motions: Pleadings. For the purpose of ruling on a motion for leave to intervene, the allegations of the petition in intervention are deemed to be true.

2. Pretrial Motions: Pleadings. A direct and immediate interest which will mandatorily require the granting of a motion for leave to intervene must be such a direct and immediate interest that one seeking to intervene will either lose or gain by the direct operation of the judgment.

Lyman L. Larsen and Thomas R. Litjen of Kennedy, Holland, DeLacy & Svoboda, Omaha, and Claire M. Olson, Bismarck, N.D., for appellant.

Robert B. Crosby and Steven G. Seglin of Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, for appellee Little Blue Natural Resources Dist.

Richard G. Kopf of Cook & Kopf, P.C., Lexington, for appellee Central Platte Natural Resources Dist.

George E. Svoboda of Sidner, Svoboda, Schilke, Wiseman, Thomsen & Holtorf, and Lyle B. Gill, Fremont City Atty., Fremont, Neb., for appellees Lower Platte North Natural Resources Dist. et al. and city of Fremont.

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

GRANT, Justice.

This appeal is from the denial of a motion seeking leave to intervene in a proceeding before the Department of Water Resources of the State of Nebraska (Department). The motion to intervene was filed by appellant, Basin Electric Power Cooperative (Basin Electric). Appellees are various parties appearing in the proceeding before the Department. The city of Fremont, Lower Platte North Natural Resources District, and other entities support Basin Electric's petition to intervene. Little Blue Natural Resources District (Little Blue) and Central Platte Natural Resources District oppose the proposed intervention.

The proceeding in which Basin Electric seeks to intervene began in November of 1977, when Little Blue filed applications with the Department seeking permits to divert and store over 300,000 acre-feet of water per year from the Platte River system for irrigation purposes. This proceeding has been before this court on two previous occasions. In Little Blue N.R.D. v. Lower Platte North N.R.D., 206 Neb. 535, 294 N.W.2d 598 (1980) (Little Blue I ), we held that transbasin diversion is not prohibited in Nebraska, and reversed the Department's denial of Little Blue's application. The proceeding was remanded to the Department to determine if the proposed diversion was contrary to the public interest.

The Department, without holding further hearings, granted Little Blue's applications on remand. This decision then was appealed to the Nebraska Supreme Court by Lower Platte North Natural Resources District and others. This court, in Little Blue N.R.D. v. Lower Platte North N.R.D., 210 Neb. 862, 317 N.W.2d 726 (1982) (Little Blue II ), held that the Nongame and Endangered Species Conservation Act, Neb.Rev.Stat. §§ 37-430 to 37-438 (Reissue 1978), should have been considered by the Department and was not. We remanded the case, stating at 875, 317 N.W.2d at 734:

We believe that, upon remand, further hearings should be held by the director and relevant evidence should be adduced relating particularly to those factors set forth in § 46-235 as now amended, as well as the project's effect upon the endangered species. In so holding we do not pass upon the validity of § 46-235.

The proceeding has been going forward before the Department since our remand in Little Blue II on March 19, 1982.

On January 6, 1984, Basin Electric filed its motion for leave to intervene in the proceeding, together with its petition in intervention. Basin Electric did not request an evidentiary hearing nor was one held. On February 23, 1984, this petition was denied, without prejudice, by order of the Department. Basin Electric did not file a motion for new trial, and appeals from the Department's order denying intervention. The order denying intervention is a final order for purposes of appeal. Shold v. Van Treeck, 82 Neb. 99, 117 N.W. 113 (1908). For the purposes of ruling on Basin Electric's motion for leave to intervene, we assume the allegations of the petition in intervention to be true. See, Kozak v. Wells, 278 F.2d 104 (8th Cir.1960); Rick v. Boegel, 205 N.W.2d 713 (Iowa 1973).

Basin Electric set out in that petition that it is a cooperative corporation organized in North Dakota; that it is part owner and manager of the Laramie River Station near Wheatland, Wyoming, which station is a part of the Missouri Basin Power Project (the Project); that the Laramie station gets its cooling water from the Laramie River, a tributary of the North Platte River; that in lawsuits begun in 1976 and 1978 in U.S. District Court including the State of Nebraska, Basin Electric, the Project, and others, the state sought to enjoin the completion of the Project because, as alleged by the state, the water depletion by the Project located near Laramie, Wyoming, would adversely affect endangered whooping cranes and their habitat on the Platte River between Chapman and Overton, Nebraska, called the Big Bend Area; and that on October 2, 1978, the U.S. District Court enjoined completion of construction of the Project.

The petition in intervention further alleged that because of the federal court order of October 2, 1978, the Project faced financial losses of approximately $100 million per year if construction were stopped; that, therefore, on December 4, 1978, the Project agreed to a negotiated settlement, called the Grayrocks Settlement, with all parties to that lawsuit; and that, pursuant to the settlement agreement, the Project agreed to limit its consumption of water to a maximum of 23,250 acre-feet of water per year, agreed to other water-related restrictions, and agreed to contribute $7,500,000 to a trust organized to help maintain the Big Bend Area in Nebraska as a habitat for the endangered whooping cranes.

The petition in intervention further alleged that in this case in which Basin Electric sought intervention, Little Blue and others sought to store or divert 300,000 acre-feet of water near the Big Bend Area, located approximately 280 miles downstream from the Project, and that the Big Bend Area is the same area which the state alleged was threatened by the water depletions sought by Basin Electric at the Project.

The petition in intervention further stated that Basin Electric was informed and therefore believed that certain parties to the current applications were engaged in settlement negotiations, that Basin Electric has a direct and immediate interest in the outcome for the settlement negotiations, that many citizens of Nebraska consume power supplied by the Project to Nebraska, and that it is in the public interest to ensure that the Project is not unnecessarily restricted in the production of power.

The petition further stated that no other party to the current proceeding represents the exact interest of Basin Electric; that Basin Electric does not necessarily oppose the applications if the Department "finds, in fact, that their being granted will not affect adversely the critical habitat"; but that Basin Electric's interest is unique in that Basin Electric is entitled to relief if the Department would reach a finding inconsistent with the state's earlier position on the question of the whooping crane habitat.

Based on these factual allegations in its petition in intervention, Basin Electric concluded and asserted that it had a direct and immediate interest in the proceeding because the Department's actions in granting the applications of Little Blue and others may, in the words of the petition, "deplete the flows of the river in such fashion as to modify or destroy the required critical habitat of the Endangered Whooping Crane"; that it had a further direct and immediate interest "in seeing that the State of Nebraska is consistent and fair in the actions it takes with respect to the allocation of these water resources"; and that if the Department permits diversion and storage of over 300,000 acre-feet of water just a few miles upstream from the Big Bend Area, that action would be contrary to the position of the State of Nebraska in the federal court case where the state successfully opposed Basin Electric's use of more than 23,250 acre-feet of water 280 miles upstream from the Big Bend Area.

Basin Electric, in the prayer of its proposed petition in intervention, requested that it be made a party; that the applications be denied to the extent that the Department finds the granting of the applications "adversely affect[s] the critical habitat of the Endangered Whooping Crane"; and that in the event the Department finds that granting the applications will not adversely affect the habitat, it provides relief to Basin Electric and the Project "from the restrictive provisions pertaining to water usage contained in the 'Agreement of Settlement and Compromise' to the extent the jurisdiction of the Department permits."

Little Blue, in its response to Basin Electric's motion for leave to intervene, admitted that Basin Electric "was ill-advised when it negotiated the 'Agreement of Settlement and Compromise' " set out in the petition in intervention, and opposed the Basin Electric intervention, because intervention is not allowed as a matter of right, is not timely, would serve no useful purpose, and would prejudice Little Blue. Other parties took various differing positions with regard to the proposed intervention--some opposing it and some supporting it.

As stated above, no evidentiary hearings were held on Basin Electric's motion to intervene. The question was submitted on briefs to the Department, and...