Estermann v. Bose
296 Neb. 228
| Neb. | 2017Background
- N-CORPE, a joint political subdivision formed by four Nebraska Natural Resources Districts (NRDs) under the Interlocal Cooperation Act (ICA), developed a streamflow augmentation project to help Nebraska comply with the Republican River Compact.
- N-CORPE filed condemnation proceedings in county court seeking a permanent flowage and right-of-way easement across Estermann’s property to inject water into Medicine Creek; Estermann sought injunction in district court to stop the condemnation and discharges.
- Estermann alleged N-CORPE lacked eminent domain authority, lacked required DNR/NRD/RRCA approvals or permits, violated common-law limits on exporting groundwater, and that the taking was not for a public use.
- The district court denied Estermann’s TRO and temporary injunction, granted summary judgment for N-CORPE, and denied Estermann leave to amend to add an RRCA-approval claim.
- On appeal, the Nebraska Supreme Court affirmed: it held N-CORPE may exercise eminent domain through the NRDs under the ICA, N-CORPE did not need the specific DNR/NRD/RRCA permits Estermann alleged, the amendment would have been futile, and the taking serves a public use.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N-CORPE may exercise eminent domain | Estermann: ICA does not authorize interlocal entities to condemn absent explicit legislative delegation | N-CORPE: ICA permits joint exercise of powers held by founding public agencies (NRDs), which have eminent domain powers | Held: N-CORPE may exercise eminent domain because §13-804 and §13-825 allow joint entities to exercise powers the NRDs already possess |
| Whether DNR/NRD permits (§46-252, §46-613.01) or written approvals (§76-704.01(7)) were required before condemnation | Estermann: N-CORPE failed to obtain/plead required conduct-water, groundwater-transfer permits and agency approvals | N-CORPE: Project does not trigger conduct-water or interstate-transfer permits; NRDs voted and thus waived separate NRD permits; DNR determined no permit needed | Held: No such permits/approvals were required for N-CORPE’s augmentation project as implemented; DNR informed N-CORPE no permit required |
| Whether denial of leave to amend (to allege lack of RRCA approval) was erroneous | Estermann: Amendment would add RRCA approval requirement under FSS and create triable issue | N-CORPE: Proposed RRCA-based claim is futile because FSS requires RRCA approval only for accounting/crediting of augmentation, not for physical construction/operation | Held: Denial affirmed; amendment would be futile — RRCA approval relates to augmentation credit/accounting, not a prerequisite to construction/operation |
| Whether common-law prohibition bars transferring groundwater off overlying land | Estermann: Nebraska common law forbids exporting groundwater; N-CORPE’s pumping/augmentation unlawfully transfers water off overlying land | N-CORPE: Legislature has authorized NRDs to develop, store, transport and provide water and to use augmentation under integrated management plans | Held: No bar—statutory scheme (NRD statutes and integrated management plan authority) provides the legislative exception to common-law prohibition |
| Whether condemnation served a public use | Estermann: Project primarily benefits private irrigators; akin to Burger (private use) | N-CORPE: Purpose is statewide compliance with an interstate compact; any private benefit is incidental | Held: Public use exists — augmentation to meet Compact obligations is a public purpose; taking is not private use |
Key Cases Cited
- Kansas v. Nebraska, 135 S. Ct. 1042 (U.S. 2015) (describes Republican River Compact allocation, RRCA role, and FSS modifications)
- Thompson v. Heineman, 289 Neb. 798 (Neb. 2015) (explains eminent domain public-use and legislative delegation principles)
- In re Referral of Lower Platte South NRD, 261 Neb. 90 (Neb. 2001) (states Nebraska common law disallowed transfer of groundwater off overlying land absent legislative action)
- Kubicek v. City of Lincoln, 265 Neb. 521 (Neb. 2003) (describes joint entities under ICA exercising partners’ statutory authority)
- Burlington Northern Santa Fe Ry. Co. v. Chaulk, 262 Neb. 235 (Neb. 2001) (public-use requirement for eminent domain takings)
- Burger v. City of Beatrice, 181 Neb. 213 (Neb. 1967) (holding condemnor’s taking for predominately private benefit failed public-use requirement)
- Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (U.S. 1982) (discusses interstate groundwater transfer and state regulatory authority)