Broken Bar Nine Living Trust v. Neb. Dep't of Natural Res. (In re A)
Decision Date | 21 August 2015 |
Docket Number | No. S-14-906.,S-14-906. |
Citation | 291 Neb. 678 |
Court | Nebraska Supreme Court |
Parties | IN RE APPROPRIATION A-7603, WATER DIVISION 2-A. BROKEN BAR NINE LIVING TRUST, APPELLANT, v. NEBRASKA DEPARTMENT OF NATURAL RESOURCES, APPELLEE. |
1. Administrative Law: Statutes: Appeal and Error. In an appeal from the Department of Natural Resources, an appellate court's review of the director's factual determinations is limited to deciding whether such determinations are supported by competent and relevant evidence and are not arbitrary, capricious, or unreasonable; however, on questions of law, which include the meaning of statutes, a reviewing court is obligated to reach its conclusions independent of the legal conclusions made by the director.
2. Irrigation: Statutes: Intent: Appeal and Error. Statutory law on the subject of irrigation and the decisions of the appellate courts dealing therewith show a clear intention to enforce and maintain a rigid economy in the use of the public waters of the state.
3. Waters: Irrigation: Administrative Law. Concerning the administration of public waters, one purpose of the State is to avoid waste and to secure the greatest benefit possible from the waters available for appropriation for irrigation purposes.
4. Waters. It is the policy of statutory law to require a continued beneficial use of appropriated waters.
5. ___. An appropriator will not be permitted to retain an interest in public waters, to which he has a valid appropriation, which is not put to a beneficial use.
6. Waters: Irrigation: Property: Words and Phrases. In the context of an appropriation for irrigation, beneficial use requires actual application of the water to the land for the purpose of irrigation.
7. Waters: Irrigation: Abandonment. At common law, an appropriation of water for irrigation purposes may be lost by nonuse or abandonment.
8. 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.
9. Words and Phrases. A capricious decision is one guided by fancy rather than by judgment or settled purpose.
10. 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.
Appeal from the Department of Natural Resources. Affirmed.
Jovan W. Lausterer, of Bromm, Lindahl, Freeman-Caddy & Lausterer, for appellant.
Douglas J. Peterson, Attorney General, Justin D. Lavene, and Emily K. Rose for appellee.
Water appropriation A-7603, "Water Division 2-A" (Appropriation), was a surface water right to divert a specified volume of water from the North Loup River to "be used for irrigation purposes only." The Broken Bar Nine Living Trust (Trust), the appellant, held the Appropriation and the lands covered by it. The Nebraska Department of Natural Resources (Department), the appellee, issued a "Notice of Preliminary Determination of Nonuse of [the Appropriation]" to the Trust. After a hearing, the Department concluded that the lands designated under the Appropriation had not been irrigated for more than 5 consecutive years and that the Trust had failed to establish sufficient cause for nonuse under Neb. Rev. Stat. § 46-229.04(4) (Reissue 2010). The Department issued an order canceling the Appropriation in its entirety on September 9, 2014. The Trust appeals. We affirm.
The parties generally do not dispute the underlying facts of this case. In its "Order of Cancellation" dated September 9, 2014, the Department made the following findings of fact, which are supported by the record:
In its analysis, the Department first determined that Neb. Rev. Stat. § 46-229 (Reissue 2010) is legally enforceable as it relates to the Appropriation. The Department quoted In re Water Appropriation Nos. 442A, 461, 462, and 485, 210 Neb. 161, 164, 313 N.W.2d 271, 274 (1981), which case states, "'The [Department of Water Resources] is expresslyauthorized by statute, after notice and hearing, to forfeit a water right where it appears that the water appropriation has not been used for some beneficial or useful purpose . . . for more than three years. . . .'" The Department stated that it must follow the statutes. The Trust does not directly challenge this ruling on appeal.
The Department referred to the controlling statutes in its order. Section 46-229.04 provides for the cancellation of an appropriation after 5 consecutive years of nonuse. Section 46-229.04(1) states:
(1) At a hearing held pursuant to section 46-229.03, the verified field investigation report of an employee of the [D]epartment, or such other report or information that is relied upon by the [D]epartment to reach the preliminary determination of nonuse, shall be prima facie evidence for the forfeiture and annulment of such water appropriation. If no person appears at the hearing, such water appropriation or unused part thereof shall be declared forfeited and annulled. If an interested person appears and contests the same, the [D]epartment shall hear evidence, and if it appears that such water has not been put to a beneficial use or has ceased to be used for such purpose for more than five consecutive years, the same shall be declared canceled and annulled unless the [D]epartment...
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