J. Daniel Estermannnn, appellant,
Bill Bose et al., board members of Nebraska Cooperative Republican Platte Enhancncement Project, a political subdivision of the State of Nebraska, and Nebraska Cooperative Republican Platte Enhancncement Project, a political subdivision of the State of Nebraska, appellees.
Summary Judgment: Appeal and Error. An
appellate court will affirm a lower court's grant of
summary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as
to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter
___. In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives that party
the benefit of all reasonable inferences deducible from the
Statutes: Appeal and Error. Statutory
interpretation presents a question of law, for which an
appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court
Pleadings: Appeal and Error. An appellate
court reviews a district court's denial of a motion for
leave to amend a complaint for an abuse of discretion.
However, an appellate court reviews de novo an underlying
legal conclusion that the proposed amendments would be
Summary Judgment. On a motion for summary
judgment, the question is not how the factual issue is to be
decided but whether any real issue of material fact exists.
Summary Judgment: Proof. A party moving for
summary judgment makes a prima facie case for summary
judgment by producing enough [296 Neb. 229] evidence to
demonstrate that the movant is entitled to judgment if the
evidence were uncontroverted at trial.
___. Once the moving party makes a prima facie case, the
burden shifts to the party opposing the motion to produce
admissible contradictory evidence showing the existence of a
material issue of fact that prevents judgment as a matter of
Constitutional Law: Eminent Domain: Taxation: Public
Purpose. A citizen's property may not be taken
against his or her will, except through the sovereign powers
of taxation and eminent domain, both of which must be for a
Eminent Domain: Public Purpose: Words and
Phrases. Eminent domain is the State's inherent
power to take private property for a public use.
Constitutional Law: Eminent Domain: Legislature:
Statutes. The State's eminent domain power
resides in the Legislature and exists independently of the
Nebraska Constitution. But the constitution has limited the
power of eminent domain, and the Legislature can limit its
use further through statutory enactments.
Constitutional Law: Eminent Domain: Public
Purpose. Under Neb. Const, art. I, § 21, the
State can take private property only for a public use and
only if it pays just compensation.
Eminent Domain: Legislature. Only the
Legislature can authorize a private or public entity to
exercise the State's power of eminent domain.
Pleadings. A district court's denial of
leave to amend pleadings is appropriate only in those limited
circumstances in which undue delay, bad faith on the part of
the moving party, futility of the amendment, or unfair
prejudice to the nonmoving party can be demonstrated.
Pleadings: Summary Judgment: Proof. After
discovery is closed and a motion for summary judgment has
been filed, the appropriate standard for assessing whether a
motion to amend should be determined futile is that the
proposed amendment must be not only theoretically viable but
also solidly grounded in the record and supported by
substantial evidence sufficient to give rise to a triable
issue of fact.
Legislature: Waters. Nebraska's common
law does not allow water to be transferred off overlying
land. But the Legislature may provide exceptions to this
from the District Court for Lincoln County: Richard A. Birch,
Svoboda, of Svoboda Law Office, and George G. Vinton for
Neb. 230] Donald G. Blankenau and Vanessa A. Silke, of
Blankenau, Wilmoth & Jarecke, L.L.P., for appellees.
Douglas J. Peterson, Attorney General, Justin D. Lavene, and
Kathleen A. Miller, for amicus curiae Nebraska Attorney
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
case, J. Daniel Estermann, the appellant, filed a complaint
for injunction in the district court for Lincoln County
against Bill Bose, Brad Randel, Jerry Weaver, and Terry
Martin, who are board members of the Nebraska Cooperative
Republican Platte Enhancement (N-CORPE) project, a political
subdivision of the State of Nebraska, and N-CORPE
(collectively the appellees), along with other parties who
were later dismissed. Estermann filed this complaint in
response to N-CORPE's separate condemnation proceedings
against Estermann pending in the county court for Lincoln
County, in which N-CORPE sought an easement across
Estermann's real estate. Early on in this case, Estermann
additionally filed an application for a temporary restraining
order and a motion for temporary injunction, both of which
the district court denied. The appellees subsequently filed a
motion for summary judgment. After a hearing, the district
court granted the appellees' motion for summary judgment
and dismissed Estermann's complaint. Estermann appeals.
We affirm; however, to some extent, our reasoning differs
from that of the district court.
is a political subdivision of the State of Nebraska that was
created under the Interlocal Cooperation Act (ICA), Neb. Rev.
Stat. § 13-801 et seq. (Reissue 2012), by four natural
resources districts: the Upper Republican, the Middle
Republican, the Lower Republican, and the Twin Platte.
Neb. 231] Each natural resources district (hereinafter NRD)
is a political subdivision of Nebraska. The four NRD's
entered into an amended agreement in December 2013, which
created N-CORPE. The amended agreement states that
"N-CORPE shall constitute a separate body corporate and
politic of the State of Nebraska exercising public powers and
acting on behalf of the Parties hereto." According to
the amended agreement, the purpose of N-CORPE is to regulate
and manage water to assist the State with compliance with the
Republican River Compact (Compact). Nebraska, Kansas,
Colorado, and the United States of America are parties to the
Compact, and the Republican River Basin has been the subject
of the Compact since 1943.
Kansas v. Nebraska, ___ U.S. ___, 135 S.Ct. 1042,
1049, 191 L.Ed.2d 1 (2015), the U.S. Supreme Court described
the Compact by stating:
The Compact apportions among the three States "the
virgin water supply originating in" ... the Republican
River Basin. . . . "Virgin 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 RRCAs 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 its
Neb. 232] In 2002, the Compact was modified via a "Final
Settlement Stipulation" (FSS), which was approved by the
U.S. Supreme Court in Kansas v. Nebraska, supra.
furtherance of its purpose to assist the State with
compliance with the compact, the amended agreement creating
N-CORPE states that N-CORPE's business is to be conducted
by a board and that each of the NRD's is to have a member
on the board. The amended agreement provides that
"N-CORPE shall have all the powers, privileges and
authority exercised or capable of being exercised by each of
the individual and separate Parties [NRD's] to achieve
the purposes of the N-CORPE as set forth in this Agreement
and as may be otherwise provided for in the [ICA]."
condemnation case, Lincoln County Court case No. CI 14-496,
N-CORPE filed an amended petition to condemn in March 2014.
N-CORPE stated in its amended petition that it was developing
a "stream flow augmentation project" in Lincoln
County in order to manage ground water and surface water in
the Republican River Basin and to comply with the Compact.
N-CORPE alleged in its amended petition that its project and
petition were in response to the claim of the State of Kansas
that it was not receiving its share of the Republican River
water that was due to it under the Compact. N-CORPE stated in
its amended petition that a portion of the water augmentation
project was located over Estermann's real estate in
Lincoln County and that therefore, N-CORPE was seeking a
permanent "Flowage and Right-of-Way Easement" over
Estermann's real estate in order to augment waterflow
into Medicine Creek, which is a tributary of the Republican
N-CORPE filed its amended petition to condemn, on April 1,
2014, Estermann filed the complaint in this case seeking an
injunction against the appellees and Jeffrey Bain, Kent
Florom, and Michael Nozicka. The latter three defendants were
appraisers appointed by the county court for Lincoln County;
they were subsequently dismissed as parties and are not
parties to this appeal.
Neb. 233] Estermann alleged in his complaint that as a result
of N-CORPE's water augmentation project his real estate
has flooded, causing increasing and irreparable damage to his
land and crops, and that the floodwaters are creating new
creek channels and are threatening to lower the water table
under his fields. Estermann alleged that N-CORPE does not
have the power of eminent domain, because "the
[L]egislature has not delegated such powers to interlocal
agencies under the [ICA]" and because the NRD's do
not have the authority to delegate to N-CORPE any eminent
domain powers they may hold. Estermann further alleged in his
complaint that (1) the condemnation is not for a public use;
(2) the amount of real estate being condemned is excessive in
duration and area; (3) means other than an eminent domain
action are available to the parties; (4) N-CORPE failed to
obtain approvals and permits from certain agencies, including
the Lincoln County Board of Commissioners, the Middle
Republican NRD, the Twin Platte NRD, and the Nebraska
Department of Natural Resources (DNR); (5) N-CORPE failed to
obtain approval of the water augmentation project from
Kansas; and (6) N-CORPE is prohibited under Nebraska's
common law from transferring ground water off overlying land,
and N-CORPE does not fall under any of the statutory
exceptions to the common law. Therefore, Estermann requested
that N-CORPE be enjoined from proceeding with the
condemnation proceedings in case No. CI 14-496 and that
N-CORPE be enjoined from discharging water into Medicine
day Estermann filed his complaint for injunction, Estermann
also filed an application in which he sought a temporary
restraining order enjoining N-CORPE from proceeding with the
eminent domain action and enjoining N-CORPE from discharging
water into Medicine Creek. Two days later, on April 3, 2014,
the district court filed an order in which it denied
Estermann's application for a temporary restraining
order. In denying the application, the district court stated
that "the failure to grant a temporary restraining order
will not [296 Neb. 234] impair [Estermann's] ability to
proceed on his Complaint for an Injunction."
April 16, 2014, Estermann filed a motion for temporary
injunction that would enjoin N-CORPE from discharging water
into Medicine Creek. Estermann alleged that the discharge of
water into Medicine Creek during the pendency of the action
would produce great irreparable injury to him. Estermann
further alleged that N-CORPE does not have the power of
eminent domain and therefore is not entitled to condemn an
easement over his real estate. Estermann also alleged that he
did not have an adequate remedy at law.
April 30, 2014, the office of the Attorney General filed a
motion for leave to file an amicus brief, in which it stated
that it sought to offer guidance regarding an opinion that
was issued by the Attorney General and its impact on the
court's interpretation of § 13-804 of the ICA, which
generally deals with public agencies exercising joint power.
See Att'y Gen. Op. No. 03026 (Dec. 5, 2003). The district
court granted the motion.
15, 2014, the district court filed an order in which it
denied Estermann's motion for temporary injunction. In
the May 15 order, the district court determined that
Estermann did not establish that he had a clear right to the
relief he sought or that he would suffer a great or
irreparable injury during the pendency of the litigation. The
district court stated that Estermann's main argument in
support of his request for a temporary injunction was that
the NRD's that created N-CORPE cannot authorize N-CORPE
to exercise the power of eminent domain. The district court
rejected this argument.
order, the court noted that N-CORPE was created by the four
NRD's pursuant to the ICA. The court recognized that
pursuant to Neb. Rev. Stat. § 2-3234 (Reissue 2012),
each of the NRD's has the power of eminent domain.
Relying on § 13-804 of the ICA, the court further
recognized that the NRD's can authorize N-CORPE to
exercise any of their powers or authority, including the
power of eminent domain. Section 13-804(1) provides:
[296 Neb. 235] Any power or powers, privileges, or authority
exercised or capable of exercise by a public agency of this
state may be exercised and enjoyed jointly with any other
public agency of this state and jointly with any public
agency of any other state or of the United States to the
extent that laws of such other state or of the United States
permit such joint exercise or enjoyment. Any agency of state
government when acting jointly with any public agency may
exercise and enjoy all of the powers, privileges, and
authority conferred by the [ICA] upon a public agency.
district court noted in its May 15, 2014, order that although
the evidence showed that Estermann would sustain damages from
the water augmentation project, the evidence did not support
a conclusion that he would "suffer a great or
irreparable injury" before his complaint could be heard.
Accordingly, the district court denied Estermann's motion
for temporary injunction.
5, 2015, the appellees filed a motion for summary judgment.
On July 17, Estermann filed a motion for leave to file an
amended complaint, in which he proposed to add a claim that
the acts of N-CORPE were improper because N-CORPE had not
obtained approval from the Republican River Compact
Administration (RRCA) for the water augmentation project.
October 2, 2015, the district court filed an order regarding
the appellees' motion for summary judgment and
Estermann's motion for leave to file an amended
complaint. The district court first denied Estermann's
motion for leave to file an amended complaint, stating that
"any issues raised in the Amended Complaint can be dealt
with under the original complaint. As such, the amendment is
futile and the Motion for Leave to Amend Complaint is
district court observed that Estermann disagreed with the
policies that led to N-CORPE's petitioning to condemn and
acquire an easement across his property. The district court
[296 Neb. 236] stated that "[t]hose public policy
decisions are constitutionally entrusted to other branches of
district court next rejected Estermann's argument that
the condemnation does not meet a public purpose. The district
court stated that "complying with Nebraska's
obligation . . . under an interstate compact is certainly a
public purpose.'' The court stated that the burden
placed on ...