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 county-court condemnation proceedings seeking a permanent flowage and right-of-way easement across Estermann’s land to augment Medicine Creek flows; Estermann filed a district-court action for injunction and sought emergency relief, both denied.
- The district court granted summary judgment to N-CORPE, holding (inter alia) that N-CORPE may exercise eminent domain, did not require the permits/approvals Estermann alleged, Estermann lacked a viable forum/standing for some permit challenges, and the taking served a public use.
- Estermann appealed, arguing (among other points) that N-CORPE lacked statutory condemnation authority, needed DNR/NRD/RRCA approvals or permits, Nebraska common law barred removing groundwater off overlying land, the amendment to add RRCA claims should have been allowed, and the taking was not for public use.
- The Nebraska Supreme Court affirmed the district court, concluding (1) the ICA authorizes a joint entity to exercise powers held by its creators (including eminent domain), (2) the challenged DNR and NRD permits were not required under the facts, (3) the proposed RRCA-based amendment was futile, (4) statutory scheme permits NRD augmentation projects that transport water, and (5) the condemnation served a public purpose (Compact compliance).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether N-CORPE may exercise eminent domain | Estermann: ICA did not authorize interlocal entities to condemn; only Legislature can delegate eminent domain and it did not do so to interlocal agencies | N-CORPE: NRDs individually have eminent-domain power under § 2-3234 and § 13-804 allows joint entities to exercise powers of creating agencies | Held: N-CORPE may exercise eminent domain as a joint entity exercising powers held by the NRDs |
| Whether DNR "conduct water" (§ 46-252) or interstate transfer (§ 46-613.01) permits were required | Estermann: Project conducts and transports water downstream/out of state and thus needs permits | N-CORPE: Project augments basin flows and does not guarantee delivery of specific quantities or transport water for use in another state; DNR reviewed and concluded permits not required | Held: Permits not required for N-CORPE’s augmentation as applied; DNR determinations supported this result |
| Whether NRD internal permits/approvals were required | Estermann: Middle Republican and Twin Platte NRDs’ permits/approvals required before operation | N-CORPE: Those NRDs were creators of N-CORPE, had board votes, and effectively waived separate permits | Held: NRDs’ approval via participation/board action satisfied internal requirements; no separate permits needed |
| Whether denial of leave to amend to add RRCA-approval claim was error | Estermann: Should be allowed to add that RRCA approval was required prior to implementation | N-CORPE: Amendment was futile because RRCA approval governs accounting/credit, not prerequisite to physical construction/operation | Held: Denial affirmed—proposed RRCA claim would be futile and not supported by record |
| Whether common-law prohibition bars transferring groundwater off overlying land | Estermann: Common law forbids removing groundwater off overlying land except where Legislature provides exception | N-CORPE: Statutory scheme (NRD powers, integrated management plans, and § 46-715 augmentation authority) authorizes augmentation/transport consistent with legislative policy | Held: Legislature has provided statutory authority for NRD augmentation projects; common-law prohibition does not bar N-CORPE’s conduct |
| Whether condemnation served a public use | Estermann: Project primarily benefits private irrigators, akin to Burger v. City of Beatrice | N-CORPE: Primary purpose is to secure Nebraska’s Compact compliance — a public purpose; private benefits are incidental | Held: Taking serves public use (Compact compliance); summary judgment appropriate |
Key Cases Cited
- In re Referral of Lower Platte South NRD, 261 Neb. 90 (recognizing common-law bar on transferring groundwater off overlying land and legislative role in exceptions)
- Thompson v. Heineman, 289 Neb. 798 (describing eminent domain and legislative delegation)
- Kubicek v. City of Lincoln, 265 Neb. 521 (ICA joint entity may exercise partners’ statutory powers)
- Burlington N. Santa Fe Ry. Co. v. Chaulk, 262 Neb. 235 (public-use requirement for eminent domain)
- Burger v. City of Beatrice, 181 Neb. 213 (taking invalid where primary purpose was private benefit)
- Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (groundwater allocation and role of legislative policy)