Metropolitan Utilities Dist. v. Twin Platte Natural Resources Dist., A-17310
| Decision Date | 28 June 1996 |
| Docket Number | No. S-95-1022,A-17310,S-95-1022 |
| Citation | 550 N.W.2d 907,250 Neb. 442 |
| Parties | METROPOLITAN UTILITIES DISTRICT, Appellee, v. TWIN PLATTE NATURAL RESOURCES DISTRICT, Appellant, Applicationof the Metropolitan Utilities District. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Judgments: Appeal and Error. On issues of law, an appellate court is obligated to reach an independent conclusion irrespective of the determination made by the tribunal below.
2. Appeal and Error. An appellate court will not consider an issue on appeal that was not presented to or passed upon by the trial tribunal.
3. Actions: Parties: Standing. Before one is entitled to invoke a tribunal's jurisdiction, one must have standing to sue, which involves having some real interest in the cause of action; in other words, to have standing to sue, one must have some legal or equitable right, title, or interest in the subject matter of the controversy.
4. Actions: Parties: Standing. The purpose of a standing inquiry is to determine whether one has a legally protectable interest or right in the controversy that would benefit by the relief to be granted.
5. Constitutional Law: Statutes: Standing. To have standing to challenge the federal or state constitutionality of a statute, the contestant must be one who is, or is about to be, adversely affected by the language in question and must show that as a consequence of the alleged unconstitutionality the contestant is deprived of a constitutionally protected right.
6. Political Subdivisions: Legislature. A political subdivision has only that power delegated to it by the Legislature; a grant of power to a political subdivision is to be strictly construed.
7. Natural Resources Districts. A natural resources district possesses and can exercise the following powers and no others: first, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; and third, those essential to the declared objects and purposes of the district, not simply convenient, but indispensable.
8. Natural Resources Districts: Waters. The powers of a natural resources district pertain to the development, management, utilization, and conservation of ground water and surface water.
9. Standing. Neb.Rev.Stat. § 46-233 (Reissue 1993) did not supplant the common-law standard of standing.
Jess C. Nielsen, of Nielsen & Birch, North Platte, for appellant.
Ronald E. Bucher, Omaha, for appellee.
The would-be objector, Twin Platte Natural Resources District, appealed to the Nebraska Court of Appeals the order of the Director of Water Resources removing Twin Platte as an objector to the application of the applicant-appellee, Metropolitan Utilities District of Omaha, for a permit to appropriate public waters from the Platte River to induce the recharge of the ground water at the utilities district's well field near La Platte, Nebraska. In so doing, Twin Platte assigned a number of errors to the director, including (1) his failure to grant it a hearing and (2) his determination that it lacked standing. It then successfully petitioned this court for an order bypassing the Court of Appeals. Inasmuch as Twin Platte did not ask for a hearing and the director correctly determined that Twin Platte lacks standing, we affirm.
The issues attending the foregoing and controlling assignments of error present questions of law, in connection with which an appellate court is obligated to reach an independent conclusion irrespective of the determination made by the tribunal below. See In re Interest of Rondell B., 249 Neb. 928, 546 N.W.2d 801 (1996).
The utilities district filed its application with the Nebraska Department of Water Resources on September 9, 1993, and subsequently corrected it on five separate occasions. The priority date for 56 of the wells was claimed to be January 1, 1970, and the priority date for the one remaining well was claimed to be January 1, 1990, the dates the wells were drilled, rather than the date of the application.
Twin Platte filed an objection to the application on August 17, 1994, claiming that it had an interest in the matter because its constituency included landowners and water users with water rights granted after January 1, 1970, and January 1, 1990.
After all other objectors either were removed or had withdrawn, the utilities district and Twin Platte filed with the director a which provided, in pertinent part:
[The utilities district] and Twin Platte ... hereby stipulate that the following case stated shall be and is hereby submitted ... for consideration in this case to be binding upon said respective parties:
....
2. For purposes of presenting the objections of [Twin Platte] to the application of [the utilities district] in this case, [Twin Platte] does not contest the factual case that [the utilities district] will present or has presented to the Department in support of its application; it is assumed but not decided that [the utilities district] can and will present the required factual proof needed to support its application, that is to say that [the utilities district] has stated the factual justification for its application as required by LB301, laws of 1993.
3. [The utilities district] contends that upon satisfying the above referenced proof of facts, it is entitled to an instream flow right in the Platte River for induced recharge of the aquifer pumped by said wells, with a priority date assigned by statute which relates to the date the wells were drilled and not to the date on which application for the water right was made.
4. Within the geographical area of [Twin Platte] are irrigators who have perfected rights to divert natural flow water in the North Platte, South Platte, and Platte Rivers, and tributaries thereto, to water crops which would be senior to, and have priority to a water right granted with the priority date of the [utilities district] application; but, which would become junior to, and subservient to, a priority date assigned to existing [utilities district] wells based upon the date said wells were drilled. [Twin Platte] is authorized by statute to regulate ground water withdrawals within its district and generally to represent surface water users in its district.
5. [Twin Platte] contends that the statutory provisions which assign a priority date for [the utilities district] wells related to the date the wells were drilled to divert water from the river, being Sections 46-233, 235, 235.01, 235.02, 235.03 and 235.04, all as amended by LB301, laws of 1993, violate the protection afforded other water rights by the Nebraska and United States of America Constitutions.
6. [Twin Platte] also contends that said LB301, as compared to other statutory provisions is unconstitutionally amendatory and unworkable and unmanageable by the [department].
On August 9, 1995, the utilities district filed a motion for a determination as to Twin Platte's standing. On August 24, Twin Platte filed a "countermotion." That pleading did not request any action on the part of the department, but, rather, provided argument on the issue of standing. Twin Platte did not request a hearing on either its so-called countermotion or the utilities district's motion.
In an order dated August 28, 1995, the director removed Twin Platte from the listing of parties in the case, finding that it did not have standing in the proceeding. Twin Platte then filed its notice of appeal to the Court of Appeals.
Before reaching the relevant assignments of error, an initial matter needs to be addressed. Twin Platte asserts in its brief that "[t]he factual and legal issues between the parties were reduced to a pursuant to [Neb.Ct.R. of Prac.] Brief for appellant at 1-2. However, the utilities district states that (Emphasis in original.) Brief for appellee at 1.
Neb.Ct.R. of Prac. 5B(13) (rev.1996) provides as follows:
Case Stated. The parties may by agreement state the case to be presented to this court on appeal. The case stated shall briefly recite the facts out of which the questions of law arise, and also any substantial conflict in the evidence as to any fact involved. It shall separately identify and quote the rulings of the court complained of, with so much of the record as will fully show the law question involved in such ruling and the exception and contentions of the parties thereon. The case stated shall constitute the bill of exceptions. It must be allowed and certified by the judge who tried the case, filed with the clerk of the district court, made a part of the record of the district court as in other cases, and included therein when the transcript of the record is filed in this court.
The case stated filed with the department did not separately identify and quote the rulings about which complaint is made; indeed, no rulings had been made at the time of its filing. Neither was the case stated certified by the director who issued the order about which complaint is made on appeal. Consequently, the case stated filed for the consideration of the department does not serve as a case stated in this court.
Twin Platte first asserts that the director erred in failing to grant it a hearing on the issue of its standing. However, Twin Platte did not request a hearing on either the utilities district's motion to determine Twin Platte's standing or its own filing. Resolution of this assignment of error is controlled by the rule that an appellate court will not consider an issue on appeal that was...
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