Central Platte Natural Resources Dist. v. State of Wyo., A-17004
| Decision Date | 25 March 1994 |
| Docket Number | A-17007,A-17009,A-17006,OF,A-17005,A-17004,No. S-92-664,A-17008,S-92-664 |
| Parties | CENTRAL PLATTE NATURAL RESOURCES DISTRICT, Appellee and Cross-Appellee, v. STATE OF WYOMING, Appellant, Central Nebraska Public Power and Irrigation District, Appellee and Cross-Appellant, and Lower Platte North Natural Resources District et al., Appellees, In re Applications, andthe CENTRAL PLATTE NATURAL RESOURCES DISTRICT. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Administrative Law: Waters: Appeal and Error. In appeals from the Department of Water Resources, an appellate court's review of factual determinations is limited to deciding whether the agency's determination is supported by competent and relevant evidence and is not arbitrary, capricious, or unreasonable.
2. Administrative Law: Statutes: Appeal and Error. The meaning of a statute is a question of law, and a reviewing court is obligated to reach its conclusions independent of the determination made by the administrative agency.
3. Waters: Words and Phrases. For purposes of an instream flow application, unappropriated water is that water which is available for appropriation because it is not subject to an existing appropriation right.
4. Waters. The holder of an appropriation right is required to use the water only for beneficial purposes. This is known as the beneficial use requirement.
5. Waters. The beneficial use requirement limits the amount of water which the holder can actually appropriate. An appropriation right extends only as far as the beneficial use requirement will allow.
6. Waters: Words and Phrases. In the definition of unappropriated water, the phrase "subject to an existing appropriation right" refers to the appropriation right measured by the beneficial use limit.
7. Waters. In applications for instream flows, the historic flow method is a permissible way of measuring the beneficial use limit.
8. Waters. In determining the amount of unappropriated water available for an instream flow appropriation, the director must account for water which may be diverted by two types of senior appropriators whose rights are not reflected in the historic flow records: pending senior applications and approved-but-unconstructed senior applications.
9. Waters: Endangered Species. Before authorizing a diversion project, the Department of Water Resources must obtain from the Game and Parks Commission a "nonjeopardy opinion," an opinion that the project will not jeopardize threatened or endangered species.
10. Waters: Endangered Species: Evidence. Although the nonjeopardy opinion does not give the Game and Parks Commission absolute veto power, neither the Department of Water Resources nor the applicant can ignore the conclusion of the Game and Parks Commission, if in fact the evidence supports that conclusion.
11. Waters. The opinion of the Game and Parks Commission does not, merely by being issued, impose affirmative requirements upon an application for a water appropriation.
12. Waters. Neb.Rev.Stat. § 46-2,115(1) (Reissue 1988) does not require the director of the Department of Water Resources to consider future ground water depletion.
13. Waters. To the extent that ground water will be withdrawn in the future, this ground water remains, at the present, unappropriated water; ground water which has not been removed also constitutes unappropriated water.
14. Waters. To be available, a water supply does not need to be perfectly reliable. To be available in a practical sense, the supply of water must be fairly continuous and dependable.
15. Waters. A determination regarding water availability cannot and should not be divorced from the applicant's purpose.
16. Waters: Endangered Species: Words and Phrases. In the context of an instream flow application to maintain existing wildlife habitats, "fairly continuous and dependable" means the flow regime which the species can bear. Put another way, there is sufficient water available under Neb.Rev.Stat. § 46-2,115(1) (Reissue 1988) when there is enough water to maintain the wildlife habitat sought by an applicant.
17. Waters. Interference with senior water rights occurs when a junior appropriator's use deprives the senior appropriator of some part of his allotment.
18. Waters: Proof. An applicant can establish noninterference by showing that the sought-after appropriation meets the definition of an instream flow appropriation. That is, the applicant must establish that the appropriation will be (1) an undiverted application (2) of the waters of a natural stream within or bordering upon the state (3) for recreation or fish and wildlife purposes.
19. Administrative Law: Waters. The Department of Water Resources is subject to the Administrative Procedure Act.
20. Administrative Law. Under the Administrative Procedure Act, an agency's order must contain findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the conclusions upon each contested issue of fact.
21. Administrative Law: Appeal and Error. The Administrative Procedure Act requires agency orders to contain conclusions on each contested issue of fact so that reviewing courts can discern why the agency reached its ultimate conclusions.
22. Administrative Law. An administrative order which does no more than state its ultimate conclusion--"application granted" or "application denied"--clearly fails to provide a sufficient basis for the order.
23. Administrative Law. An administrative order which fails to make findings on each required element also fails to provide a sufficient basis for the order.
24. Administrative Law: Waters. Neb.Rev.Stat. § 46-2,116 (Cum.Supp.1992) does not require the director of the Department of Water Resources to make a finding regarding forgone uses.
25. Administrative Law: Evidence: Appeal and Error. Unless there is affirmative evidence to the contrary, a reviewing court will presume that an agency has duly considered all the evidence before it.
26. Waters. In complying with Neb.Rev.Stat. § 46-2,115(5) (Reissue 1988), the director of the Department of Water Resources is not required to provide a discussion of forgone uses.
27. Waters: Witnesses. The Department of Water Resources has the power to compel the attendance of witnesses.
28. Administrative Law: Judicial Notice: Appeal and Error. Nebraska appellate courts generally do not take judicial notice of administrative rules and regulations.
29. Administrative Law: Rules of Evidence: Witnesses: Presumptions. When the Nebraska Evidence Rules apply to an administrative hearing, those persons performing adjudicative functions are presumptively incompetent to testify. However, there are limits to an agency's power to shield its employees from a subpoena. An employee with unique knowledge indispensable to the adjudication may be subject to a subpoena.
30. Administrative Law: Due Process. In formal agency adjudications, as in court proceedings, due process requires a neutral, or unbiased, adjudicatory decisionmaker.
31. Administrative Law: Presumptions. Administrative adjudicators serve with a presumption of honesty and integrity.
32. Administrative Law: Due Process. Although due process requires disqualification when the administrative adjudicator has actually prejudged the precise facts at issue, due process does not require the disqualification of one who has merely been exposed to or investigated the facts at issue.
Dennis C. Cook, Senior Asst. Wyoming Atty. Gen., and Donald M. Gerstein, Lawrence J. Wolfe, of Holland & Hart, Cheyenne, WY, and James W. Hewitt, Lincoln, for appellant.
James E. Doyle IV, of Cook, Wightman & Doyle, Lexington, for appellee Central Platte Natural Resources Dist.
Michael C. Klein, of Anderson, Klein, Peterson & Swan, Holdrege, for appellee Central Nebraska Public Power and Irr. Dist.
George E. Svoboda and Bradley E. Nick, of Sidner, Svoboda, Schilke, Thomsen, Holtorf & Boggy, Fremont, for appellee Lower Platte North Natural Resources Dist.
Glen A. Murray, Grand Island, for appellees National Audubon Soc. and Nebraska Chapter of the Sierra Club.
The Central Platte Natural Resources District (CPNRD) applied for instream flow appropriations in the Platte River. The director of the Department of Water Resources (director) granted portions of the applications. The State of Wyoming (Wyoming), which had objected to the applications, appealed to the Nebraska Court of Appeals. The Court of Appeals affirmed. Wyoming then petitioned for and was granted further review in this court. We affirm in part and in part reverse. The cause is remanded for further proceedings.
On July 25, 1990, CPNRD filed six applications for permits to appropriate water for instream flows in the Platte River. CPNRD essentially sought to reserve water rights in order to maintain food sources and habitats for five bird species. The details of these applications are set forth in the Court of Appeals opinion, In re Applications A-17004 et al., 4 Neb.C.A. 182, 512 N.W.2d 392 (1993). Wyoming objected to the applications. Wyoming owns land bordering the Platte River in Buffalo and Kearney Counties in Nebraska and intends to use that land as a whooping crane migrational habitat.
During July and September 1991, the Department of Water Resources held hearings on CPNRD's application. On July 2, 1992, the director granted three of the applications, granted in part and denied in part one of the applications, denied one application, and dismissed one application. Wyoming appealed from this decision. The appeal concerns only those applications and parts of applications which the director granted. Additional facts will be supplied in conjunction with the specific assignments of error.
Wyoming asserts eight assignments of error. These assignments of error...
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