Estermann v. Bose
296 Neb. 228
| Neb. | 2017Background
- N-CORPE, a joint entity created by four Nebraska Natural Resources Districts (NRDs) under the Interlocal Cooperation Act (ICA), built a stream-flow augmentation project that withdraws groundwater and releases it into Medicine Creek to help Nebraska comply with the Republican River Compact.
- N-CORPE filed a county-court condemnation petition seeking a permanent flowage and right-of-way easement across Estermann’s land; Estermann sued in district court seeking injunctive relief and challenged N-CORPE’s authority, permits, and public-purpose for the taking.
- Estermann alleged (a) N-CORPE lacks eminent-domain authority because interlocal entities cannot exercise that power; (b) required DNR, NRD, and RRCA approvals/permits were absent; (c) Nebraska common law bars transferring groundwater off overlying land; and (d) the taking was not for a public use.
- The district court denied Estermann’s requests for temporary relief, granted N-CORPE’s summary-judgment motion, and denied Estermann leave to amend to add an RRCA-approval claim. Estermann appealed.
- The Supreme Court of Nebraska affirmed: it held N-CORPE may exercise eminent domain via the ICA, the challenged permits/approvals were not required as pleaded, the common-law prohibition was overridden by statute for NRD-authorized augmentation, and the condemnation served a public use (Compact compliance).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N-CORPE (an interlocal joint entity) has eminent-domain authority | Estermann: ICA does not authorize interlocal entities to exercise eminent domain absent explicit legislative delegation | N-CORPE: ICA (§13-804 and §13-825) permits joint exercise of powers held by member agencies; NRDs individually have eminent-domain power | Held: N-CORPE may exercise eminent domain because NRDs retained their powers and may jointly exercise them through the ICA-created entity |
| Whether N-CORPE needed DNR conduct-water or interstate groundwater-transfer permits | Estermann: Project required §46-252 conduct-water permit and §46-613.01 interstate transfer permit | N-CORPE: Project does not guarantee downstream delivery or transport water for use in another state; DNR officials concluded no such permits required | Held: No conduct-water or interstate-transfer permits were required for N-CORPE’s augmentation project |
| Whether N-CORPE required RRCA approval before implementing/operating the augmentation project | Estermann: FSS to the Compact requires RRCA approval of augmentation plans prior to implementation | N-CORPE: FSS/Accounting Procedures require RRCA approval only for augmentation plans to obtain accounting credit, not for physical construction/operation | Held: RRCA approval is not a prerequisite to construct/operate the project; amendment asserting RRCA-approval failure was futile |
| Whether Nebraska common law forbids transporting groundwater off overlying land so as to bar N-CORPE’s project | Estermann: Common-law rule prohibits transfer off overlying land; N-CORPE’s actions therefore unlawful | N-CORPE: Legislature has authorized NRDs to develop, store, transport, and use augmentation as part of integrated management plans (§2-3238, §46-715) | Held: Statutory scheme authorizes NRD augmentation projects; common-law prohibition does not bar N-CORPE |
| Whether Estermann had standing/appropriate forum to challenge permits in the injunction action | Estermann: He challenged N-CORPE’s lack of permits in district court | N-CORPE: Estermann lacked standing or proper forum to raise permitting questions; but permits also not required | Held: Court assumed without deciding standing/forum issues but resolved merits by finding permits not required |
| Whether condemnation serves a public use | Estermann: Project primarily benefits private irrigators, so taking is private use (citing Burger) | N-CORPE: Primary purpose is interstate Compact compliance and basin management; private benefits incidental | Held: Taking is for a public use — Compact compliance and avoiding State liability — so eminent domain is proper |
Key Cases Cited
- Kansas v. Nebraska, 135 S. Ct. 1042 (U.S. 2015) (describing Compact, RRCA role, and FSS amendments)
- In re Referral of Lower Platte South NRD, 261 Neb. 90 (Neb. 2001) (recognizing common-law rule limiting transfer of groundwater off overlying land and legislative authority to alter it)
- Thompson v. Heineman, 289 Neb. 798 (Neb. 2015) (overview of eminent-domain/public-use principles)
- Burlington Northern Santa Fe Ry. Co. v. Chaulk, 262 Neb. 235 (Neb. 2001) (public-use requirement for takings)
- Burger v. City of Beatrice, 181 Neb. 213 (Neb. 1967) (condemnation invalid where primary purpose was private use)
- Kubicek v. City of Lincoln, 265 Neb. 521 (Neb. 2003) (ICA joint entity may exercise partnering agencies’ statutory powers)