Ponderosa Ridge LLC v. Banner County

• Citation: 554 N.W.2d 151,250 Neb. 944
• Decision Date: 18 October 1996
• Docket Number: No. S-95-1228,TA-19,S-95-1228
• Parties: PONDEROSA RIDGE LLC, Appellant, v. BANNER COUNTY et al., Appellees, Applicationof Ponderosa Ridge LLC.
• Court: Supreme Court of Nebraska

Page 151

554 N.W.2d 151

250 Neb. 944

PONDEROSA RIDGE LLC, Appellant, v. BANNER COUNTY et al., Appellees, Application TA-19 of Ponderosa Ridge LLC.

No. S-95-1228.

Supreme Court of Nebraska.

Oct. 18, 1996.

Syllabus by the Court

1. Administrative Law: Waters: Statutes: Appeal and Error. In an appeal from the Department of Water Resources, an appellate court's review of the director's factual determinations is limited to deciding whether such determinations are supported by competent and relevant evidence and are not arbitrary, capricious, or unreasonable; however, on questions of law, which include the meaning of statutes, a reviewing court is obligated to reach its conclusions independent of the legal determinations made by the director.

2. Standing. In order to have standing to invoke a tribunal's jurisdiction, one must have some legal or equitable right, title, or interest in the subject of the controversy.

3. Constitutional Law: Statutes: Standing. Standing to challenge the constitutionality of a statute under the federal or state Constitution depends upon whether one is, or is about to be, adversely affected by the language in question; to establish standing, the contestant must show that as a consequence of the alleged unconstitutionality, the contestant is, or is about to be, deprived of a protected right.

4. Standing: Courts: Jurisdiction: Parties. Because the requirement of standing is fundamental to a court's exercising jurisdiction, a litigant or a court before which a case is pending can raise the question of standing at any time during the proceeding.

5. Constitutional Law: Statutes: Presumptions. A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality.

6. Constitutional Law: Statutes: Proof. The unconstitutionality of a statute must be clearly demonstrated before a court can declare the statute unconstitutional.

7. Constitutional Law: Statutes: Proof. The burden of establishing the unconstitutionality of a statute is on the one attacking its validity.

8. Constitutional Law: Legislature. While the Legislature may not delegate legislative power to an administrative or executive authority, the Legislature has the power to authorize an administrative or executive department to make rules and regulations to carry out an expressed legislative purpose, or for the complete operation and enforcement of a law within designated limitations; however, the standards by which the granted powers are to be administered must be clearly and definitely stated in the authorizing act and may not rest on indefinite, obscure, or vague generalities, or upon extrinsic evidence not readily available.

9. Constitutional Law: Legislature. Where the Legislature has provided reasonable limitations and standards for carrying out delegated duties, there is no unconstitutional delegation of legislative authority.

10. Constitutional Law: Waters: Words and Phrases. Water is an article of commerce, implicating the Commerce Clause of the U.S. Constitution.

11. Statutes: Waters: Public Purpose: Appeal and Error. Where a statute regulates water even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, the statute will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.

12. Administrative Law: Words and Phrases. A decision is arbitrary when it is made in disregard of the facts or circumstances and without some basis which would lead a reasonable person to the same conclusion.

13. Administrative Law: Words and Phrases. A capricious decision is one guided by fancy rather than by judgment or settled purpose; such a decision is apt to change suddenly; it is freakish, whimsical, humorsome.

14. Administrative Law: Words and Phrases. The term "unreasonable" can be applied to an administrative decision only if the evidence presented leaves no room for differences of opinion among reasonable minds.

15. Actions: Parties: Proof. Generally, it is the party asserting the affirmative of an issue that has the burden of proving that issue.

Clark G. Nichols, of Nichols, Douglas, Kelly, and Meade, P.C., Scottsbluff, for appellant.

James M. Worden, Banner County Attorney, for appellee County.

James M. Mathis, of Holtorf, Kovarik, Ellison & Mathis, P.C., Gering, for appellee North Platte Natural Resources District.

Stephen D. Mossman, of Mattson, Ricketts, Davies, Stewart & Calkins, Lincoln, for appellees Eldon Lundberg, Dale Ward, and Wayne Palm.

Before WHITE, C.J., and CAPORALE, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ., and RIST, District Judge.

CAPORALE, Justice.

I. STATEMENT OF CASE

The appellant, Ponderosa Ridge LLC, a Nebraska limited liability company, applied for a permit to transfer ground water from a well located in Banner County, Nebraska, to Laramie County, Wyoming. The appellees, Banner County, Eldon Lundberg, Wayne Palm, Dale Ward, and North Platte Natural Resources District, filed objections, and the director of the Department of Water Resources denied the application. In appealing, Ponderosa Ridge asserts, in summary, that the director's order is arbitrary, capricious, and unreasonable in that it is (1) contrary to law and (2) not supported by the evidence. We affirm.

II. BACKGROUND

The application requested a transfer of a maximum of 1,532 acre-feet of water per year at a rate of no more than 1,368,000 gallons per day. The water was to be used to flush pig production facilities and then stored in the lagoon upstream from Ponderosa Ridge's well, which is located approximately 50 feet from the Nebraska-Wyoming border. Water from the lagoon was then to be used in center-pivot systems to irrigate land in Wyoming. The well was to be continuously operated 24 hours a day, 356 days a year, and was to provide a "cone of depression" which would trap any leakage from the lagoon and prevent any pollution or contamination of the aquifer downstream.

In entering his order of denial, the director determined that granting the permit would result in a beneficial use of the water, but that a supply developed from sources in Wyoming would be sufficient to meet the needs of Ponderosa Ridge, that the negative effects the withdrawal of ground water might cause could not be quantitatively determined, and that the expected impacts upon future demands were unclear. The facts relating to these findings are set forth in parts IV(1)(c)(ii) and (2) below.

III. SCOPE OF REVIEW

In an appeal from the department, an appellate court's review of the director's factual determinations is limited to deciding whether such determinations are supported by competent and relevant evidence and are not arbitrary, capricious, or unreasonable. Central Platte NRD v. City of Fremont, 250 Neb. 252, 549 N.W.2d 112 (1996). However, on questions of law, which include the meaning of statutes, a reviewing court is obligated to reach its conclusions independent of the legal determinations made by the director. Id.

IV. ANALYSIS

Before we turn our attention to the summarized assignments of error, we consider whether all of the objectors had the requisite standing to challenge Ponderosa Ridge's application before the director. We have recently reaffirmed that in order to have standing to invoke a tribunal's jurisdiction, one must have some legal or equitable right, title, or interest in the subject of the controversy. See, Metropolitan Utilities Dist. v. Twin Platte NRD, 250 Neb. 442, 550 N.W.2d 907 (1996); Marten v. Staab, 249 Neb. 299, 543 N.W.2d 436 (1996); SID No. 57 v. City of Elkhorn, 248 Neb. 486, 536 N.W.2d 56 (1995). Standing to challenge the constitutionality of a statute under the federal or state Constitution depends upon whether one is, or is about to be, adversely affected by the language in question. To establish standing, the contestant must show that as a consequence of the alleged unconstitutionality, the contestant is, or is about to be, deprived of a protected right. See, Metropolitan Utilities Dist., supra; State ex rel. Dept. of Health v. Jeffrey, 247 Neb. 100, 525 N.W.2d 193 (1994); Styskal v. Wright, 246 Neb. 513, 519 N.W.2d 543 (1994). We have also explained that the fact that water rights of the constituents of a natural resources district may be affected by an application to appropriate water does not confer standing upon such a district to object to the application. See Metropolitan Utilities Dist., supra.

The record establishes that the individual objectors Lundberg and Ward had water use interests to protect; however, we are not directed to, nor do we find, any evidence that the individual objector Palm had any such interests. Neither have we been directed to, nor do we find, any evidence that the objectors Banner County and North Platte Natural Resources District had any such interests. Indeed, Banner County advised the director that it was appearing on behalf of its residents, and North Platte Natural Resources District stated that it was not "trying to be adversarial, necessarily, to any particular party," but, rather, that it was appearing to protect the public interest.

Standing relates to a court's power, that is, jurisdiction, to address the issues presented and serves to identify those disputes which are appropriately resolved through the judicial process. State v. Baltimore, 242 Neb. 562, 495 N.W.2d 921 (1993). See Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). Because the requirement of standing is fundamental to a court's exercising jurisdiction, a litigant or a court before which a case is pending can raise the question of standing at any time during the proceeding. Baltimore, supra. Under the record presented, we find that Lundberg and Ward were the only objectors properly before the director.

1. LAW CLAIM

Ponderosa Ridge's claim that the director's order of denial is contrary to law rests...