Frenchman Cambridge Irrigation Dist. v. Heineman
| Decision Date | 24 September 2013 |
| Docket Number | No. 8:12CV445.,8:12CV445. |
| Citation | 974 F.Supp.2d 1264 |
| Parties | FRENCHMAN CAMBRIDGE IRRIGATION DISTRICT, a Nebraska Political Subdivision; Bostwick Irrigation District in Nebraska, a Nebraska Political Subdivision; Dale Cramer, Jay Schilling, Steve Henry, Plaintiffs, v. Dave HEINEMAN, Governor of Nebraska; Brian Dunnigan, Director, Nebraska Dept. of Natural Resources; Upper Republican Natural Resources District, A Nebraska Political Subdivision; N–Corpe, An Interlocal Cooperative; United States Of America, United States Department of Interior, Bureau of Reclamation; Kenneth Salazar, Secretary of Interior; Michael Connor, Commissioner of Bureau of Reclamation; and Michael Ryan, Director, Great Plains Region, Bureau of Reclamation, Defendants. |
| Court | U.S. District Court — District of Nebraska |
OPINION TEXT STARTS HERE
Brian E. Jorde, David A. Domina, Jeremy R. Wells, Domina Law Group, Omaha, NE, for Plaintiffs.
Blake E. Johnson, Justin D. Lavene, Attorney General's Office, Donald G. Blankenau, Thomas R. Wilmoth, Blankenau, Wilmoth Law Firm, Lincoln, NE, James J. Dubois, U.S. Department of Justice–Environment & Natural Resources Denver, CO, for Defendants.
This matter is before the court on motions to dismiss filed by defendants N–CORPE and Upper Republican Natural Resources District (hereinafter, “the DNR Defendants”),1 Filing No. 40; defendants Brian Dunnigan and Dave Heineman (hereinafter, “the State Defendants”),2 Filing No. 42; and defendants Michael Connor, Michael Ryan, Kenneth Salazar, the United States Department of Interior, and the United States of America (hereinafter, “the Federal Defendants”),3 Filing No. 45.
This is an action for injunctive and declaratory relief involving a challenge to the DNR Defendants' and State Defendants' alleged plan to pump groundwater to surface water streams in order to remedy an alleged overuse of Nebraska's allocation of water under an Interstate Compact. The plaintiffs are two political subdivisions organized under Nebraska law to deliver natural flow irrigation water and three farmers, landowners, and water-user patrons of those political subdivisions (hereinafter, collectively, “the Irrigation Districts”). They base jurisdiction on 28 U.S.C. §§ 1331 (federal question jurisdiction), 1346(f) (), 1361 (mandamus jurisdiction), 1367a (supplemental jurisdiction), and 43 U.S.C. §§ 390uu () & 666(a) (). The plaintiffs seek a determination of rights to the waters of the Republican River Basin and the Platte Basin within Nebraska, an order compelling the Federal Defendants to protect FCID water rights and an injunction compelling all State and Federal Defendants to respect, and refrain from interfering with, those water rights. The plaintiffs do not seek damages as a remedy.
The Federal Defendants move to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). They assert the United States has not waived its sovereign immunity. They also argue that the plaintiffs' complaint fails to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6).
The DNR Defendants move to dismiss for lack of subject matter jurisdiction underFed.R.Civ.P. 12(b)(1) and for failure to state a claim under Fed.R.Civ.P. 12(b)(6). They base their Fed.R.Civ.P. 12(b)(1) challenge on Eleventh Amendment immunity. They argue that they work jointly with the State of Nebraska to comply with the Republican River Compact (“RRC”) and act as an “arm of the State” for Eleventh Amendment immunity purposes.4 They also argue that there is no foundation for the exercise of supplemental jurisdiction over the plaintiffs' state law claims because the plaintiffs' federal claims are infirm and contend the court should decline discretionary jurisdiction over the state law claims. Also, they contend the plaintiffs lack standing to pursue the claims.
The State Defendants similarly move to dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). They too argue that the plaintiffs' claims are barred by the Eleventh Amendment and assert that the State has not waived, and Congress has not abrogated, the State's sovereign immunity. They further argue that the doctrine of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), is inapplicable because the plaintiffs have not alleged any violation of federal law. They also contend that the court should decline to exercise supplemental jurisdiction over the plaintiffs' state law claims, and alternatively argue that the plaintiffs' claims are subject to dismissal under state law.
In their 63–page Complaint, the plaintiffs allege that the defendants have caused or permitted, and threaten to further cause and permit, groundwater of the Republican River Basin and the Platte Basin, to be pumped from the aquifer, and dumped into open streams to augment streamflow of the Republican River's mainstem for the purpose of delivering sufficient water to the State of Kansas in order to comply with the Republican River Compact, the Republican River Accounting Rules, and a modified Final Settlement Stipulation settling a suit between Kansas and Nebraska.5 Filing No. 1, Complaint at 3. In general, the Irrigation Districts allege that the State of Nebraska receives a certain allocation of the water of the Republican River Basin under the agreement ultimately reached in the Supreme Court litigation. Id. at 21. Under the Final Settlement Stipulation, the states adopted the Republican River Compact Administration Groundwater Model, under which the compact allocates a specific number of acre-feet to each state on a basin-by-basin basis. See Complaint at 17. In the Kansas v. Nebraska litigation, a special master found that:
[a]lthough the compact never uses the word ‘groundwater,’ stream flow which the compact fully allocates, comes from both surface runoff and groundwater discharge. Interception of either of these streamflow sources can cause a state to receive more than its compact allocation and violate the compact. Thus the comprehensive definition of virgin water supply, even without use of the express term “groundwater” requires a conclusion that, as a matter of law, a state can violate the compact through excessive pumping of groundwater hydraulically connected to the Republican River and its tributaries.
Filing No. 1, Complaint at 21; see State of Kansas v. State of Nebraska, No 126, Orig., Final Report of the Special Master with Certificate of Adoption of RRCA Groundwater Model, 2003 WL 25904134 (September 17, 2003), available at www. supremecourt. gov/ Sperc Mast Rpt/ Spec Mast Rpt. aspx (last visited September 18, 2013).
The Irrigation Districts assert the State Defendants threaten to disrupt and diminish inflows from naturally occurring groundwater accretions to streams, and from streams to federal reservoirs and lakes in Nebraska, and thereby reduce, disrupt, and intermittently eliminate the availability of surface waters to flow into the irrigation canals and ditches of the Irrigation Districts, which hold prior and superior water use rights and superior natural flowage easements that predate applicable water regulations. See Filing No. 1, Complaint at 3. The individual plaintiffs allege that “[e]ach individual Plaintiff uses water received from FCID, which is unavailable from any other source, to supply essential irrigation water to his growing crops” and contends that “[i]f this supply of water is interrupted, and if the relief sought in this Complaint is not granted, each individual Plaintiff, and each similarly situated water patron of FCID, will incur injury and loss.” Id. at 7. The Irrigation Districts allege that each Irrigation District is an enterprise engaged in a commercial activity, and each will suffer an injury, specifically the threat that each will be put out of business if relief requested in this Complaint is not granted. Id. at 8.
The Irrigation Districts also allege that the Federal Defendants have contracted to provide surface water to the Irrigation Districts and to maintain surface water through a system of lakes and reservoirs to assure adequate surface waters are present to permit each district to fulfill its mission during years of plentiful, and less than plentiful, precipitation. Id. The plaintiffs also allege “[t]his is a comprehensive action involving determination of all rights in the Republican River basin in Nebraska.” See Complaint at 13.
In particular, the plaintiffs challenge an Integrated Management Plan (“IMP”) that was adopted by defendant for the Republican River Natural Resources District (“NRD”) and its sister NRDs in the basin. Id. at 31. They allege that the IMP was adopted to permit Nebraska to claim, in the litigation in the United States Supreme Court that it had a regulatory scheme in place to ensure compliance with the RRC during years when water is short. Id. at 34. Essentially, they allege that the Upper Republican NRD consumes more water than is reasonable or beneficial, and such is detrimental to the Middle and Lower Republican NRDs. Id. at 35–36. They allege the Upper Republican NRD's excessive use removes critical groundwater from its natural locations and prevents its natural and continuous subterranean flow to surface streams where it is needed to supply water to meet the plaintiffs' needs and water rates. Id. at 36. They allege the Upper Republican NRD's annual maximum target level is an unreasonable allocation of water and assert that the State Defendants' and NRD defendants' conduct violates Nebraska's Constitutional and statutory priorities. Id.
The Irrigation Districts' first claim for relief involves the conduct of N–CORPE. They allege defendant Upper Republican NRD sponsored...
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