Middle Niobrara Natural Res. Dist. v. Dep’t of Natural Res.

Middle Niobrara Natural Res. Dist. v. Dep’t of Natural Res., 838 N.W.2d 242 (Neb. 2013) (holding the Natural Resources Districts’ allegations lacked standing because they did not allege any legal right, title, or interest in the subject water of the Niobrara River and Thomas Higgins’ allegations lacked standing because the harm was speculative and not distinguishable from harm the harm that would be caused to any other landholder within the natural resources district).

The Middle and Lower Natural Resources Districts (NRD) and Thomas Higgins unsuccessfully appealed to the Supreme Court of Nebraska the Department of Natural Resources (DNR) dismissal of their action for lack of standing.  The purpose of the action was to object to Nebraska Public Power District’s (NPPD’s) application to appropriate an additional 425 cubic feet per second of natural flow from the Niobrara River.  The NRDs are responsible for the management of ground water within their districts.  Higgins is the owner of real property in the Niobrara River Basin who holds senior water rights and pending surface water appropriations from the Niobrara River.  The DNR dismissed the appellant’s objections sua sponte for lack of standing.  According to DNR, NRD lacked standing because it did not allege any legal right, title, or interest in the subject water of the Niobrara River and their allegation of harm was based upon mere conjecture.  Higgins did not fulfill the standing requirement because no legal right existed with a pending application.  Further, if DNR granted the pending applications, Higgins rights would be senior to NPPD and there was no evidence of credible harm.

The Court considered four issues on appeal.  The first issue was whether the director erred when he determined that NRD did not have a cognizable interest to fulfill the standing requirement.  The second issue addressed was the conclusion that Higgins would not be adversely affected in a manner sufficient to confer standing.  The third issue was that DNR applied an improper standard of review.  The final issue was that DNR failed to consider the impact of the decision on the public interest.

The Court affirmed the DNR’s assertion that the NRDs did not have standing.  The NRDs failed to allege any legal right, title, or interest and their allegations were based on mere conjecture.  The NRD’s argued that the granting of NPPD’s application would cause a portion of the Niobrara River to be fully appropriated in the future and that a threatened injury would satisfy the standing requirements.  The NRDs further argued that they had standing because they were responsible for the management of ground water from the Niobrara River.  The Court, in a previous case, determined that standing exists when duties are placed upon NRDs when a fully appropriated designation was made.  In this case, however, no fully appropriated designation was made and it was merely speculation that the application might be granted and the application might lead to a fully appropriated designation.  NRDs also tried to argue that the appropriation would preclude the use of water for irrigation and limit their tax base.  The court ruled that the harm suffered by the NRDs needed to be more particular and to a more direct and identified interest.

Higgins also lacked standing because he did not allege sufficient harm.  Higgins argued that the grant of NPPD’s application might increase his property taxes and it might affect the real property value.  These allegations were both speculative and not actual or imminent.  Higgins further argued that the grant might affect his existing appropriations and increase the cost of his pending applications.  However, Higgins failed to explain how his rights would be affected when his rights were both upstream and senior to NPPD’s rights.

The third issue the Court addressed was whether the DNR applied the correct standard of review.  The appellants argued that the DNR failed to assume that all of the allegations were true and view them in the light most favorable to the appellants.  The DNR used the correct standard of review because the allegations did not allege an interest or an injury which was sufficient to confer standing.

Finally, the Court addressed whether the DNR should deny an application if it is demanded by the public interest.  The Court concluded it did not matter whether NPPD’s application was in the public interest or not because the appellants did not have standing.  Neither NRD nor Higgins could assert the public interest.

Because neither the NRDs nor Higgins established an interest or injury sufficient to confer standing, the Court affirmed the decision of the DNR.

Stephan, J., Concurring in Part and Dissenting in Part

Stephan concurred in the determination that NRD did not have standing.  It was merely speculative that the grant of NPPD’s application would lead to a determination that the water basin was fully appropriated.  Further, no single appropriation causes a fully appropriated decision and one could argue that any appropriation would cause the basin to become fully appropriated.  This would allow the NRDs to challenge any surface water appropriation.

However, Higgins’ claim was based on his own water rights and he had a pending application for another appropriation.  Higgins allegations that the grant of NPPD’s application might increase his taxes and affect the value of his property were not enough to confer standing.  However, Higgins’ allegations that the grant would adversely impact his existing appropriations or preclude or increase the cost of his pending application were enough to confer standing despite the fact that Higgins did not allege how the appropriation would adversely affect his water rights.

Connolly, J., Dissenting

Connolly dissented because he believed the majority ignored the evidence of imminent harm that would result from the approval of the application.  The Administrative Procedure Act (APA) permits the hearing for a contested case, which means a proceeding where a state agency is required to determine a parties’ legal duties, rights, or procedures.  Further, the APA defines an interested person as one who is or could be adversely affected in a legally cognizable way.  Both the NRDs and Higgins have alleged sufficient facts to show that they would be adversely affected by DNR’s approval of the NPPD application.  Thus, both the NRDs and Higgins have standing.


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