Cross v. North Platte Natural Res. Dist.
| Citation | 788 N.W.2d 252,280 Neb. 533 |
| Decision Date | 27 August 2010 |
| Docket Number | No. S-09-727.,S-09-727. |
| Parties | The CENTRAL NEBRASKA PUBLIC POWER AND IRRIGATION DISTRICT, a public corporation and political subdivision of the State of Nebraska, appellant and cross-appellee, v. NORTH PLATTE NATURAL RESOURCES DISTRICT, a political subdivision of the State of Nebraska, appellee and cross-appellant. |
| Court | Supreme Court of Nebraska |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Syllabus by the Court1. Motions to Dismiss: Appeal and Error. An appellate court reviews a district court's order granting a motion to dismiss de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing a dismissal order, an appellate court accepts as true all the facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the pleader's conclusions.
3. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure to state a claim, the pleader must allege sufficient facts, accepted as true, to state a claim to relief that is plausible on its face.
4. Actions: Evidence. In cases in which a plaintiff does not or cannot allege specific facts showing a necessary element, the factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a reasonable expectation that discovery will reveal evidence of the element or claim.
5. Attorney Fees: Appeal and Error. On appeal, a trial court's decision allowing or disallowing attorney fees for frivolous or bad-faith litigation will be upheld in the absence of an abuse of discretion.
6. Actions: Parties: Standing. A party has standing to invoke a court's jurisdiction if it has a legal or equitable right, title, or interest in the subject matter of the controversy.
7. Actions: Parties: Standing. A party must have standing before a court can exercise jurisdiction, and either a party or the court can raise a question of standing at any time during the proceeding.
8. Standing: Jurisdiction. Standing relates to a court's power, that is, jurisdiction, to address issues presented and serves to identify those disputes which are appropriately resolved through the judicial process.
9. Standing. Under the doctrine of standing, a court may decline to determine merits of a legal claim because the party advancing it is not properly situated to be entitled to its judicial determination. The focus is on the party, not the claim itself.
10. Standing: Jurisdiction. Standing requires that a litigant have such a personal stake in the outcome of a controversy as to warrant invocation of a court's jurisdiction and justify exercise of the court's remedial powers on the litigant's behalf.
11. Claims: Parties. Generally, a litigant must assert the litigant's own rights and interests, and cannot rest a claim on the legal rights or interests of third parties.
12. Standing: Proof. To have standing, a litigant first must clearly demonstrate that it has suffered an injury in fact. That injury must be concrete in both a qualitative and temporal sense.
13. Complaints: Justiciable Issues. A complainant must allege an injury to itself that is distinct and palpable, as opposed to merely abstract, and the alleged harm must be actual or imminent, not conjectural or hypothetical.
14. Actions: Proof. A litigant must show that its injury can be fairly traced to the challenged action and is likely to be redressed by a favorable decision.
15. Actions: Motions to Dismiss. For purposes of a motion to dismiss, threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. A court is not obliged to accept as true a legal conclusion couched as a factual allegation.
16. Pleadings: Proof. A pleader's obligation to provide the grounds of its entitlement to relief requires more than labels and conclusions. Nor does a pleading suffice if it tenders naked assertion, devoid of further factual enhancement.
17. Actions: Waters: Words and Phrases. A “harm” to a person entitled to the use of water implies a loss or detriment to a person, and not a mere change or alteration in some physical person, object, or thing. Physical changes may be either beneficial, detrimental, or of no consequence to a person.
18. Words and Phrases. “Harm” is the detriment or loss to a person which occurs by virtue of, or as a result of, some alteration or change in his person or in physical things.
19. Attorney Fees. Neb.Rev.Stat. § 25-824 (Reissue 2008) provides generally that the district court can award reasonable attorney fees and court costs against any attorney or party who has brought or defended a civil action that alleges a claim or defense that a court determines is frivolous or made in bad faith.
20. Attorney Fees: Words and Phrases. The term “frivolous” connotes an improper motive or legal position so wholly without merit as to be ridiculous.
21. Actions. Any doubt about whether a legal position is frivolous or taken in bad faith should be resolved in favor of the one whose legal position is in question.
Michael C. Klein, Charles D. Brewster, Kearney, and Jonathan R. Brandt, of Anderson, Klein, Swan & Brewster, for appellant.
Steven C. Smith, Scottsbluff, and Lindsay R. Snyder, of Smith, Snyder & Pettit, and Peter W. Katt, Stephanie F. Stacy, and Derek C. Zimmerman, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellee.
The primary issue in this case is whether the appellant, a power and irrigation district that appropriates and stores surface water for the benefit of public users, may bring a judicial review proceeding under the Administrative Procedure Act (APA) 1 to challenge a natural resources district's ground water appropriation. Because we agree with the district court that the appellant lacks standing to do so, we affirm the court's dismissal of the appellant's complaint.
In 2008, the North Platte Natural Resources District (NRD) held a public hearing, pursuant to the Nebraska Ground Water Management and Protection Act (GWMPA), 2 regarding proposed rules and regulations for the Pumpkin Creek Basin Groundwater Management Sub-Area. The NRD proposed to lower the ground water allocation from 14 inches per acre to 12 inches per acre. Two people objected at the hearing: a representative of the Spear T Ranch, Inc. (Spear T), a Pumpkin Creek surface water irrigator, and the public relations manager of The Central Nebraska Public Power and Irrigation District (Central). Both objectors argued, generally, that a reduction to 12 inches per acre was insufficient to correct a significant decrease in surface water streamflow in the Pumpkin Creek basin. But the NRD decided to implement its proposed reduction.
Central filed a petition for judicial review pursuant to the APA. 3 Central alleged that it owns and operates a system of reservoirs, canals, and laterals used for several purposes, including irrigation, recreation, environmental protection, and powerplant cooling. Among other things, Central operates Lake McConaughy, a reservoir located on the North Platte River, and owns and operates hydroelectric facilities that use the waters of Lake McConaughy and the North Platte River. Central also stores and releases water to the Nebraska Public Power District for use in powerplant cooling, hydroelectric power generation, and the public power district's reservoirs and fishery. And Central alleged several other purposes for which the water it stores and releases is used, including streamflow and aquifer recharge.
Central alleged that ground water depletions in the NRD's jurisdiction had caused streamflow into Lake McConaughy to decline, substantially reducing the lake's level. Specifically, Central alleged that the NRD's ground water withdrawals were causing direct and substantial depletions of Pumpkin Creek, a tributary of the North Platte River-water which would, Central alleged, have been available for storage in Lake McConaughy. Central concluded that the NRD's ground water allocation was unreasonable and was causing harm to it and to the water uses it had described.
On that basis, Central asked the district court to enter an order reversing the NRD's ground water allocation and directing the NRD to adopt rules and regulations for ground water allocation in the Pumpkin Creek basin that would restore historic surface water flows to the North Platte River and its tributaries. The NRD moved the court to dismiss Central's petition pursuant to Neb. Ct. R. Pldg. § 6-1112. The NRD also moved for attorney fees because, according to the NRD, Central's petition was frivolous. 4
The district court dismissed Central's petition. The court accepted the allegations of Central's petition as true, but found that Central was not a “ ‘person aggrieved’ ” within the meaning of the APA. 5 The court reasoned that Central, because it was a surface water appropriator located entirely outside the NRD's jurisdiction, was not directly affected by the NRD's ground water appropriation. The court stated that under Central's allegations, the NRD's rules would adversely affect its surface water appropriations, “but would also adversely impact practically every irrigator, landowner, water user, recreationer, outdoorsman, and electric power consumer within the North Platte River Watershed between Wyoming and Iowa.” On that basis, the court dismissed Central's petition for judicial review. But the court found that Central's petition was not frivolous and denied the NRD's motion for attorney fees. Central appeals, and the NRD cross-appeals.
Central assigns that the district court failed to provide it with due process and erred in dismissing its petition for judicial review, because it has a real, direct, and substantial interest in the outcome of the litigation based, in part, upon its proprietary interest in, and the multitude...
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