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Frenchman-Cambridge Irrigation District v. Nebraska Department of Natural Resources

Supreme Court of Nebraska

October 6, 2017

Frenchman-Cambridge Irrigation District, by its Board of Directors, a Nebraska political subdivision, appellant and cross-appellee,
Nebraska Department of Natural Resources et al., appellees and cross-appellants.

         1. Motions to Dismiss: Pleadings: Appeal and Error. A district court's grant of a motion to dismiss on the pleadings is reviewed de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

         2. Jurisdiction: Appeal and Error. Before proceeding to the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

         3. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.

         4. Appeal and Error. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

         5. Standing: Proof. To have standing, a litigant first must clearly demonstrate that it has suffered an injury in fact. That injury must be concrete in both a qualitative and temporal sense.

         6. Complaints: Justiciable Issues. A complainant must allege an injury to itself that is distinct and palpable, as opposed to merely abstract, and the alleged harm must be actual or imminent, not conjectural or hypothetical.

         Appeal from the District Court for Furnas County: James E. Doyle IV, Judge. Vacated and dismissed.

          [297 Neb. 1000] David A. Domina and Christian T. Williams, of Domina Law Group, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, Justin D. Lavene, Joshua E. Dethlefsen, and Kathleen A. Miller for appellees.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Kelch, and Funke, JJ.

          Kelch, J.


         Frenchman-Cambridge Irrigation District (FCID) appeals the district court's order dismissing its petition under Neb. Ct. R. Pldg. § 6-1112(b)(6) for failure to state a claim upon which relief can be granted. Before determining whether the district court's dismissal of the petition was proper, this court must determine whether FCID has standing to challenge the integrated management plans at issue and whether the court has subject matter jurisdiction pursuant to Neb. Rev. Stat. § 46-750 (Reissue 2010) or Neb. Rev. Stat. § 84-911(1) (Reissue 2014).


         FCID is a political subdivision created pursuant to the irrigation districts statutes, [1] under which FCID is authorized to enter into contracts to supply water for irrigation purposes with any person and with certain organizations within its district.[2] According to its petition, FCID uses the revenue from its sale of water to fulfill contractual obligations to the U.S. Department of the Interior and the U.S. Bureau of Reclamation.

         FCID is located within the Republican River Basin. The portion of the basin located in Nebraska is divided into three [297 Neb. 1001] natural resources districts: the Upper Republican Natural Resources District, the Middle Republican Natural Resources District, and the Lower Republican Natural Resources District. Each natural resources district (NRD), along with the other NRD's in Nebraska, was created by statute[3] to develop and conserve the state's natural resources, including its ground water and surface water.[4]

         In 2004, portions of the Republican River Basin were declared "fully appropriated."[5] When a river basin is determined to be fully appropriated, Neb. Rev. Stat. § 46-715 (Cum. Supp. 2016) of the Nebraska Ground Water Management and Protection Act provides that the NRD's encompassing the basin and the Department of Natural Resources (Department) shall jointly develop an integrated management plan (IMP) to achieve and sustain a balance between water uses and water supplies for the long term.

         In December 2015, the Republican River Basin NRD's adopted, and the Department approved, IMP's that provided for a 20-percent reduction in ground water pumping in the Republican River Basin area. Before these IMP's were adopted and approved, previous IMP's provided for a 25-percent reduction in ground water pumping. Thus, the new IMP's allow for 5 percent more ground water pumping than the previous ones.[6]

         In January 2016, FCID filed a petition for review under the Administrative Procedure Act, [7] challenging the newly approved IMP's on constitutional and other grounds. In the petition, FCID alleges that the IMP's violate the U.S. [297 Neb. 1002] Constitution's Compact Clause, [8] Commerce Clause, [9] Equal Protection Clause, [10] and Due Process Clause, [11] as well as provisions of the Nebraska Constitution and the Republican River Compact. As defendants in the suit, FCID listed the Department, the director of the Department, the Republican River Basin NRD's, and the Attorney General.

         In March 2016, the defendants filed a motion to dismiss pursuant to § 6-1112(b)(1) and (6) for lack of subject matter jurisdiction and for failure to state a claim upon which relief ...

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