Keating v. Neb. Pub. Power Dist.
| Decision Date | 12 May 2010 |
| Docket Number | No. 7:07CV5011.,7:07CV5011. |
| Citation | 713 F.Supp.2d 849 |
| Parties | Gerard J. KEATING, Frank R. Krejci, Jane Krejci, Timothy Peterson, Linda Peterson, Daryl Butterfield, Makala Butterfield, and Janet A. Keating, each individually and on behalf of all persons similarly situated, Plaintiffs,v.NEBRASKA PUBLIC POWER DISTRICT, Nebraska Department of Natural Resources, Dennis L. Rasmussen, Mary A. Harding, Larry A. Linstrom, Darrell J. Nelson, Edward J. Schrock, Ken L. Schmieding, Gary G. Thompson, Larry G. Kuncl, Wayne E. Boyd, Virgil L. Froehlich, Ronald W. Larsen, Brian Dunnigan, and Does 1-100, each in their official capacities, Defendants. |
| Court | U.S. District Court — District of Nebraska |
Boyd W. Strope, James D. Gotschall, Strope, Gotschall Law Firm, O'Neill, NE, Frank A. Taylor, Julie H. Firestone, Scott G. Knudson, Thomas A. Larson, Briggs, Morgan Law Firm, Minneapolis, MN, Keith A. Harvat, Lieben, Whitted Law Firm, Omaha, NE, Terrance O. Waite, Waite, Mcwha Law Firm, North Platte, NE, William G. Campbell, Campbell Law Firm, Ely, MN, for Plaintiffs.
Kelly R. Hoffschneider, Patricia L. Vannoy, Stephen D. Mossman, Mattson, Ricketts Law Firm, Justin D. Lavene, Marcus A. Powers, Attorney General's Office, Lincoln, NE, for Defendants.
This matter is before the Court for ruling on the cross-motions for summary judgment (Filing Nos. 147, 150 & 153) the parties 1 filed pursuant to the Court's December 17, 2009, order (Filing No. 146). On April 13, 2009, the United States Court of Appeals for the Eighth Circuit remanded the case to this Court for further consideration of the plaintiffs' procedural due process claim (Filing No. 125). Keating v. Neb. Pub. Power Dist., 562 F.3d 923, 930 (8th Cir.2009). The parties have filed numerous briefs (Filing Nos. 148, 151, 154,2 159, 161, 163, 168, 171, 173 & 175) and evidentiary submissions (Filing Nos. 149, 152, 155, 160, 162, 164, 172, 174 & 176). On April 23, 2010, the Court held a hearing in connection with the cross-motions. Upon reviewing the motions, briefs, evidentiary submissions, and oral arguments of the parties, the Court finds the plaintiffs' motion for summary judgment should be denied, and NPPD's and DNR's motions for summary judgment should be granted.
Although not directly implicated in the plaintiffs' procedural due process claim, the Court will discuss some general principles of Nebraska surface water law to aid in understanding how the parties' appropriation permits relate to each other. Since 1895, Nebraska has utilized the doctrine of prior appropriation for the administration of surface water, such as the confined surface water flowing through the Niobrara River. Keating, 562 F.3d at 925; Richard S. Harnsberger & Norman W. Thornson, Nebraska Water Law & Administration 10, 70 (1984). Under the prior appropriation system, DNR is the agency responsible for administering surface water in Nebraska. See generally Neb.Rev.Stat. §§ 61-201 to 61-219.
As pertinent to this case, there are two types of rights recognized by Nebraska's prior appropriation doctrine: appropriation rights and preference rights. In re 2007 Administration of Appropriations of Waters of the Niobrara River, 278 Neb. 137, 139, 768 N.W.2d 420, 422 (2009) [hereinafter Bond ]. An appropriation right is a right to divert unappropriated surface water for a beneficial use. Neb.Rev.Stat. § 46-204; Bond, 278 Neb. at 139, 768 N.W.2d at 423. Each appropriator's appropriation right receives a priority date, which is the date an applicant files an appropriation permit application with DNR. Neb.Rev.Stat. § 46-205; Northport Irr. Dist. v. Jess, 215 Neb. 152, 158, 337 N.W.2d 733, 738 (1983). The priority date of a permit is important because it is used to determine which appropriators have priority in times of water scarcity, as the appropriator “first in time is first in right.” Neb.Rev.Stat. § 46-203. An appropriator with the earlier in time priority date is the “senior appropriator,” and the appropriator with the later in time priority date is the “junior appropriator.” Bond, 278 Neb. at 139, 768 N.W.2d at 423. In times of water scarcity, the senior appropriator has the right to continue diverting water against a junior-upstream appropriator. See id. In effect, junior-upstream appropriators must allow sufficient water to pass their diversion head-gates to fulfill the entire appropriation allotments of senior-downstream appropriators. In the course of administering surface water, DNR allows water appropriators to issue a “call” for surface water if the flow of surface water at the appropriator's diversion point is insufficient to fulfill the appropriator's permitted diversion rate (Affidavit of Michael Thompson (“Thompson Affidavit”), Filing No. 152-3, ¶ 2).
To illustrate, assume there are two appropriators who are permitted by DNR to divert water from the same stream, one having a priority date of December 31, 2009 (the “2009 appropriator”) and one having a priority date of January 1, 2010 (the “2010 appropriator”). Further assume the 2009 appropriator is located downstream from the 2010 appropriator. If flow levels in the stream fall to such a level that the 2009 appropriator is not receiving its full appropriation from the stream, the 2009 appropriator may place a call with DNR requesting the 2010 appropriator cease diverting water until stream levels return to a level sufficient to fulfill the 2009 appropriator's allotment.
Although an appropriator may have superior appropriation rights, a junior appropriator may have a senior preference right over a senior appropriator. In times of water scarcity, Nebraska law gives superior preference rights to certain uses of surface water regardless of appropriation dates. See Neb. Const. art. XV, § 6; Neb.Rev.Stat. §§ 46-204, 70-668; Bond, 278 Neb. at 139, 768 N.W.2d at 423. For example, appropriators using water for domestic purposes have preference over appropriators using water for any other purpose. Id. And appropriators using water for agricultural purposes have preference over appropriators using water for manufacturing or power purposes. Id. Thus, continuing the example, assuming the 2010 appropriator uses water for agricultural purposes and the 2009 appropriator uses water for power purposes, the 2010 appropriator would have a superior preference right to the 2009 appropriator.
Having a superior preference right, however, does not give a junior appropriator unfettered access to water. Bond, 278 Neb. at 140, 768 N.W.2d at 423. Again, under the example, even though the 2009 appropriator has a senior appropriation right compared with the 2010 appropriator, the 2010 appropriator may nonetheless exercise its senior preference right if it justly compensates the 2009 appropriator.
In exercising a senior preference right, a junior appropriator may either agree with the senior appropriator on an amount constituting just compensation and enter a subordination agreement or, if no agreement is made, a junior appropriator may commence a condemnation proceeding in a county court to determine the amount of compensation. Neb.Rev.Stat. § 70-672; Bond, 278 Neb. at 140, 768 N.W.2d at 423. Once the subordination agreement is in place or the condemnation proceeding has resolved, DNR cannot issue closing notices to the junior appropriator for the period of time agreed or contained in the condemnation award. Bond, 278 Neb. at 140, 768 N.W.2d at 424.
As stated supra, DNR is the state agency responsible for administering surface water in Nebraska (DNR's Opening Brief (“DNR OB”), Filing No. 151, ¶ 1). NPPD, a political subdivision of the State of Nebraska, owns and operates Spencer Dam located on the Niobrara River in northern Nebraska. NPPD holds three surface water appropriation permits issued to it or a predecessor institution by DNR or a predecessor agency ( See Plaintiffs' Opening Brief (“POB”), Filing No. 168, ¶ 42). These three permits are: A-359-R, priority date of September 12, 1896 for 35 cubic feet per second (“c.f.s.”); A-1725, priority date of October 30, 1923 for 1450 c.f.s.; and A-3574, priority date of June 8, 1942 for 550 c.f.s. (NPPD's Opening Brief (“NPPD OB”), Filing No. 148, ¶ 1; POB ¶¶ 43 & 45; DNR OB ¶ 8; see also Thompson Affidavit, Exhibit H (permit documents)). These permits allow NPPD to appropriate a total of 2035 c.f.s. for the operation of the Spencer Dam (NPPD OB ¶ 2).3
The plaintiffs are farmers and ranchers owning or renting land in the Niobrara Watershed (POB ¶ 1). The Keatings own 6700 acres in Holt County, Nebraska and hold two surface water appropriation permits: A-14604, priority date of December 22, 1976 for 1.83 c.f.s.; and A-16012, priority date of October 26, 1981 for 1.78 c.f.s.4 (POB ¶¶ 2, 16; NPPD OB ¶ 4; see also Thompson Affidavit, Exhibit B (permit documents)). The Butterfields rent the Keatings' land for raising crops and livestock (POB ¶ 3). The Krejcis own 14,539 acres in Holt County and also hold two surface water appropriation permits: A-13320, priority date of December 17, 1974 for 25.8 c.f.s.; and A-17988, priority date of June 18, 2001 for 1.89 c.f.s. (POB ¶¶ 4, 18; NPPD OB ¶ 4; see also Thompson Affidavit, Exhibit C (permit documents)). The Petersons rent the Krejcis' land for raising crops and livestock (POB ¶ 5). In applying the general principles of Nebraska water law to this case, NPPD is the senior appropriator, and the plaintiffs are junior appropriators, since NPPD's latest priority date is June 8, 1942, and the plaintiffs' earliest priority date is December 17, 1974.5
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The Undefeatable Opponent: How the Effective Administration of Water Is an Exception to Predeprivation Hearings Ordinarily Required by Due Process in Keating v. Neb. Pub. Power District, 660 F.3d 1014 (8th Cir. 2011)
...(1983). 140. Keating I, No. 7:07CV5011, 2007 WL 2248054 (D. Neb. Aug. 1, 2007). 141. Keating v. Neb. Pub. Power Dist. (Keating III), 713 F. Supp.2d 849, 853 (D. Neb. 142. Id. 143. Id. 144. Id. 145. See supra section II.D. 146. Keating III, 713 F.Supp.2d at 854. 147. Id. 148. Id. 149. Id. 15......