Motions to Dismiss: Appeal and Error. A
district court's grant of a motion to dismiss is reviewed
Motions to Dismiss: Pleadings: Appeal and
Error. When reviewing an order dismissing a
complaint, the appellate court accepts as true all facts
which are well pled and the proper and reasonable inferences
of law and fact which may be drawn therefrom, but not the
Property. A takings analysis begins with an
examination of the nature of the owner's property
Property: Title: Statutes. No compensation
is owed in a takings claim if the State's affirmative
decree simply makes explicit what already inheres in the
title itself, in the restrictions that background principles
of the State's law of property and nuisance already place
upon land ownership.
Irrigation. Rights of irrigation in Nebraska
exist only as they have been created and defined by the law
and are therefore limited in their scope by the language of
Irrigation Districts: Waters. The
adjudication of a water right gives to an irrigation district
and its predecessors in interest a vested right to the use of
the waters appropriated, subject to the law at the time the
vested interest was acquired and such reasonable regulations
subsequently adopted by virtue of the police power of the
Waters: Irrigation. The law gives to every
citizen of the state the right to appropriate for beneficial
purposes the unappropriated public waters of the state, and
it protects him or her in the enjoyment of this appropriation
after his or her right is once vested. An appropriator takes
this right, however, subject to the rights of all prior and
[296 Neb. 11] subsequent appropriators, and he or she cannot
infringe upon their rights and privileges.
States: Federal Acts. A compact, having
received Congress' blessing, counts as federal law.
Agriculture: Crops: Irrigation. The
inability to withdraw enough water to grow a crop does not
amount to being deprived of all economic use of the land.
Administrative Law: Waters: Natural Resources
Districts. Nebraska has two separate systems for the
distribution of its water resources: One allocates surface
water, and the other allocates ground water. The Department
of Natural Resources regulates surface water appropriators,
see Neb. Rev. Stat. § 61-201 et seq. (Reissue 2009 &
Cum. Supp. 2016), and ground water users are statutorily
regulated by the natural resources districts through the
Nebraska Ground Water Management and Protection Act, see Neb.
Rev. Stat. § 46-701 et seq. (Reissue 2009 & Cum.
Administrative Law: Waters: Jurisdiction.
Neb. Rev. Stat. § 46-715 (Cum. Supp. 2016) limits the
Department of Natural Resources' jurisdiction to surface
from the District Court for Furnas County: James E. Doyle IV,
A. Domina, of Domina Law Group, P.C., L.L.O., for appellants.
Douglas J. Peterson, Attorney General, Justin D. Lavene,
Emily K. Rose, and Kathleen A. Miller for appellees.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
and 2014, the Nebraska Department of Natural Resources (DNR)
issued orders and sent closing notices to holders of surface
water permits for natural flow and storage in the Republican
River Basin (Basin). Appropriators Greg Hill, Brent Coffey,
James Uerling, and Warren Schaffert, representing themselves
and a class of farmers who irrigate with water delivered by
the Frenchman-Cambridge Irrigation District [296 Neb. 12]
(FCID), subject to Nebraska's allocation of water under
the Republican River Compact (Compact), filed suit, alleging
two regulatory takings claims against the State of Nebraska
and the DNR.
district court consolidated the claims for the 2013 and 2014
crops, dismissed both claims, and denied the
appropria-tors' requests for leave to amend. The
appropriators appeal. We affirm.
that the Compact, as federal law, supersedes the
appropriators' property interests. We further find that
the DNR does not have a duty to regulate ground water; thus,
a failure by the DNR to regulate ground water pumping that
affects the Basin does not give rise to a cause of action for
the Nebraska Ground Water Management and Protection Act, the
DNR is required to conduct an annual forecast to determine
whether the State's projected water supply from the Basin
and projected consumption is sufficient to comply with the
Compact. The DNR conducted such a forecast on
January 1, 2013, and again on lanuary 1, 2014. The DNR's
forecasts for both years indicated that the State's
consumption would exceed its allocation under the Compact.
Therefore, in each of those years, the DNR issued an order
referred to as a "Compact Call" in the Basin and
issued closing notices on all natural flow and storage
FCID owns water rights for surface water natural flow within
the Basin for irrigation purposes. The appropriators allege
that as a result of the DNR's orders to close the natural
waterflow and preclude the release of storage water, "
'the entirety of FCID's surface water appropriation
bypassed [the appropriators] and was diverted for the public
use of satisfying Nebraska's obligation to the state of
Kansas under the Compact.'"
Neb. 13] The appropriators brought these actions on behalf of
themselves and a class of water users consisting of
"[a]ll FCID water users in 2013 [and 2014] who did not
receive their full water allocation supply due to the acts,
omissions, and takings of [the State and the DNR] and who
suffered damages due to diminished or eliminated crop
production yields of growing crops." In their
complaints, the appropriators alleged that each holds prior
appropriation rights to surface water and that in each crop
year, there was available surface water within Nebraska's
allocated share of the Basin's waters which was not
needed to meet Nebraska's obligations under the Compact.
The appropriators further alleged that the available water
was taken from the appropriators and given to Kansas, in
excess of the requirements of the Compact, and constituted
inverse condemnation of their water rights.
Basin "Interstate Compact"
the states of Kansas and Colorado, and the United States of
America are parties to the Compact. The FCID and all class
members own surface water appropriations allowing diversion
of surface water from the Basin for beneficial use. The Basin
has been the subject of the Compact since 1943.
Kansas v. Nebraska,  the U.S. Supreme Court described
The Republican River originates in Colorado; crosses the
northwestern corner of Kansas into Nebraska; flows through
much of southwestern Nebraska; and finally cuts back into
northern Kansas. Along with its many tributaries, the river
drains a 24, 900-square-mile watershed, called the Republican
U.S. Supreme Court described the Compact as
apportion[ing] among the three States the "virgin water
supply originating in" . . . the . . . Basin. . . .
"Virgin [296 Neb. 14] water supply, " as used in
the Compact, means "the water supply within the Basin,
" in both the River and its tributaries,
"undepleted by the activities of man." Compact Art.
II. The Compact gives each State a set share of that
supply-roughly, 49% to Nebraska, 40% to Kansas, and 11% to
Colorado-for any "beneficial consumptive use."
Id., Art. IV; see Art. II (defining that term to
mean "that use by which the water supply of the Basin is
consumed through the activities of man"). In addition,
the Compact charges the chief water official of each State
with responsibility to jointly administer the agreement. See
id., Art. IX. Pursuant to that provision, the States
created the Republican River Compact Administration (RRCA).
The RRCA's chief task is to calculate the Basin's
annual virgin water supply by measuring stream flow
throughout the area, and to determine (retrospectively)
whether each State's use of that water has stayed within
2002, the Compact was modified before the U.S. Supreme Court
via a "Final Settlement Stipulation" (FSS) approved
by the Court. Under the FSS, the parties agreed to use
the Compact's administration accounting procedures and
the ground water model to determine Nebraska's compliance
with the Compact. Based on those accounting procedures,
Nebraska must use 5-year averaging in normal allocation years
and 2-year averaging during "water short" years.
Nebraska is obligated by the Compact to limit its consumption
of the Basin's waters to its annual allotment.
the FSS was adopted, the Nebraska Legislature enacted the
Nebraska Ground Water Management and Protection Act
(hereinafter Act). Under the Act, the DNR and the Basin's
three natural resources districts "shall jointly develop
an [296 Neb. 15] integrated management
plan." And, "[i]n developing an integrated
management plan, the effects of existing and potential new
water uses on existing surface water appropriators and ground
water users shall be considered." The Act also
requires that the "ground water and surface water
controls proposed for adoption in the integrated management
plan . . . (b) be sufficient to ensure that the state will
remain in compliance with applicable state and federal laws
and with any applicable interstate water compact or decree .
. . ."
further requires that under the monitoring plans imposed by
the Act, the DNR must consult with the natural resources
districts to ensure compliance with the Compact. In addition,
the DNR shall
forecast on an annual basis the maximum amount of water that
may be available from streamflow for beneficial use in the
short term and long term in order to comply with the
requirement of subdivision (4)(b) of this section [the
Compact]. This forecast shall be made by January 1, 2008, and
each January 1 thereafter.
Relevant Sections of Nebraska Constitution
appropriators rely on the following sections of the Nebraska
Const, art. I, § 21: "The property of no person
shall be taken or damaged for public use without just
Const, art. XV, § 4: "The necessity of water for
domestic use and for irrigation purposes in the State of
Nebraska is hereby declared to be a natural want."
Neb. 16] Neb. Const, art. XV, § 5: "The use of the
water of every natural stream within the State of Nebraska is
hereby dedicated to the people of the state for beneficial
purposes, subject to the provisions of the following
Const, art. XV, § 6:
The right to divert unappropriated waters of every natural
stream for beneficial use shall never be denied except when
such denial is demanded by the public interest. Priority of
appropriation shall give the better right as between those
using the water for the same purpose, but when the waters of
any natural stream are not sufficient for the use of all
those desiring to use the same, those using the water for
domestic purposes shall have preference over those claiming
it for any other purpose, and those using the water for
agricultural purposes shall have the preference over those
using the same for manufacturing purposes. Provided, no
inferior right to the use of the waters of this state shall
be acquired by a superior right without just compensation
therefor to the inferior user.
District Court Actions
appropriators filed their initial action with respect to the
2013 crop year in July 2014. The operative complaint as to
that crop year was filed on April 10, 2015. On October 30,
2015, the appropriators filed a complaint with respect to the
2014 crop year.
than the crop years at issue, for our purposes, both
complaints were identical and alleged that (1) water was
taken from the appropriators which was within Nebraska's
allocation under the Compact, subject to capture in the
Basin's streams, not required or used for compliance with
the Compact, and not taken for consumptive beneficial use for
any superior or prior legal use and (2) water was taken from
the appropriators as a result of the DNR's failure to
curtail excessive ground water [296 Neb. 17] pumping which
has depleted the Basin's streams by preventing water from
reaching them. The appropriators claimed they suffered a loss
of crop production as a result of the DNR's actions and
April 30, 2015, the State and the DNR filed a motion to
dismiss the appropriators' amended complaint regarding
the 2013 crop year. On September 28, the court entered an
order denying in part and in part sustaining the State and
the DNR's motion to dismiss. On October 28, the State and
the DNR filed a motion for clarification and/or a motion for
reconsideration and a motion to extend the time to answer.
19, 2016, Order of Dismissal
hearing on various outstanding motions was held January 14,
2016. On May 19, the district court issued its consolidated
order. As relevant, that order first vacated that portion of
its September 28, 2015, order denying the State and the
DNR's motion to dismiss, then granted the State and the
DNR's motions to dismiss both of the appropriators'
causes of action.
ASSIGNMENTS OF ERROR
appropriators assign, restated and consolidated, that the
trial court erred in holding that (1) the DNR's
streamflow administration under the Compact was not a taking
and that thus, the regulatory action did not interfere with a
legitimate property interest under Neb. Const, art. I, §
21, and ...