Estermann v. Bose
892 N.W.2d 857
Neb.2017Background
- N-CORPE, a joint political subdivision created by four Nebraska Natural Resources Districts (NRDs) under the Interlocal Cooperation Act (ICA), sought to condemn an easement across Estermann’s land to operate a stream-flow augmentation project for compliance with the Republican River Compact.
- Estermann sued in district court for an injunction, asserting N-CORPE lacked eminent domain authority, lacked required permits/approvals (DNR, NRDs, RRCA), violated Nebraska common law barring transfer of groundwater off overlying land, and that the taking was not for a public use.
- The district court denied Estermann’s requests for temporary relief, concluded N-CORPE had authority to exercise eminent domain under the ICA, found no required DNR/NRD/RRCA approvals prevented the project, and ruled common law and public-use challenges unavailing.
- The district court denied Estermann leave to amend to add an RRCA-approval claim as futile and granted summary judgment to N-CORPE, dismissing Estermann’s complaint with prejudice.
- Estermann appealed; the Nebraska Supreme Court affirmed, largely agreeing that (1) N-CORPE may exercise eminent domain under the ICA as a joint entity, (2) the specific permits/approvals Estermann urged were not required pre-implementation, (3) the common-law prohibition was displaced/excepted by statute and NRD authority, and (4) the condemnation served a public use (Compact compliance).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N-CORPE has eminent domain authority | Estermann: ICA does not delegate eminent domain to interlocal entities; only Legislature can authorize condemnation | N-CORPE: NRDs individually have statutory eminent domain power and §13-804 permits joint exercise through a joint entity | Held: N-CORPE may exercise eminent domain; ICA permits joint entities to exercise creators’ powers |
| Whether DNR/NRD/RRCA permits/approvals were required before condemnation/operation | Estermann: §76-704.01 requires written approvals; RRCA/FSS requires prior approval of augmentation plans; DNR permits (§46-252, §46-613.01) required | N-CORPE: Project does not trigger conduct-water or interstate transfer permits; RRCA approval is for augmentation accounting/credit, not construction; NRDs waived separate permits by board approval | Held: No precondition permit/approval requirement as alleged; DNR directors concurred; RRCA approval not required to implement project |
| Whether Nebraska common law bars removing groundwater off overlying land | Estermann: Common law prohibits transfer off overlying land so N-CORPE cannot remove groundwater for augmentation | N-CORPE: Legislature/NRD statutes authorize development, storage, transport, and augmentation as part of integrated management plans | Held: Common-law prohibition subject to legislative exception; NRD statutory powers permit augmentation and transport |
| Whether condemnation served a public use | Estermann: Project primarily benefits private irrigators, so not public | N-CORPE: Main purpose is to achieve state compliance with the Republican River Compact, a public purpose; private benefits are incidental | Held: Condemnation is for a public use (Compact compliance) |
Key Cases Cited
- Kansas v. Nebraska, 135 S. Ct. 1042 (U.S. 2015) (describing Compact allocation, RRCA administration, and FSS mechanisms)
- In re Referral of Lower Platte South NRD, 261 Neb. 90 (Neb. 2001) (noting common-law bar on transferring groundwater off overlying land and legislative authority to alter that rule)
- Thompson v. Heineman, 289 Neb. 798 (Neb. 2015) (summary of eminent domain and public-use requirements)
- Kubicek v. City of Lincoln, 265 Neb. 521 (Neb. 2003) (construction and effect of interlocal/joint entities under the ICA)
- Burger v. City of Beatrice, 181 Neb. 213 (Neb. 1967) (distinguishing condemnations for private vs public use)