Estermann v. Bose
296 Neb. 228
Neb.
2017

Background

  • N‑CORPE, a joint entity formed by four Nebraska Natural Resources Districts (NRDs) under the Interlocal Cooperation Act (ICA), sought a permanent flowage and right‑of‑way easement across Estermann’s land to augment Medicine Creek flows to help Nebraska comply with the Republican River Compact.
  • Estermann sued in district court for injunctive relief, alleging N‑CORPE lacked eminent domain authority, required permits/approvals (DNR, NRDs, RRCA), violated common law prohibiting transfer of groundwater off overlying land, and that the taking was not for a public use.
  • The district court denied Estermann’s emergency motions, granted summary judgment to N‑CORPE, and denied Estermann leave to amend to add an RRCA‑approval claim.
  • Key disputed legal points: (1) whether an interlocal/joint entity (N‑CORPE) may exercise eminent domain by virtue of powers held by its creator NRDs under the ICA; (2) whether certain state permits or RRCA approval were prerequisite to condemnation or project operation; (3) whether Nebraska common law bars transferring groundwater off overlying land in this context; (4) whether the condemnation served a public use.
  • The Nebraska Supreme Court affirmed the district court, concluding (a) N‑CORPE may exercise eminent domain pursuant to ICA §§13‑804/13‑825 and NRD statutory powers, (b) the asserted DNR/NRD permit requirements and preconstruction RRCA approval were not applicable prerequisites, (c) statutory law authorizes augmentation projects and thereby supersedes the common‑law prohibition in this context, and (d) the taking was for a public use (Compact compliance).

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Authority to exercise eminent domain Estermann: ICA does not itself delegate condemnation power to interlocal entities; only Legislature can delegate eminent domain and it did not do so for ICA entities N‑CORPE: Four NRDs each have statutory eminent domain power; ICA §13‑804 permits joint exercise of powers via a joint entity; §13‑825 preserves and supplements those powers Court: N‑CORPE authorized to exercise eminent domain because NRDs retained their statutory powers and ICA permits joint exercise via a created entity
Required state permits/approvals (DNR conduct‑water, groundwater transfer, NRD permits) Estermann: N‑CORPE needed DNR permits (§46‑252, §46‑613.01) and separate NRD permits; failure to list approvals in condemnation petition voids jurisdiction N‑CORPE: Project does not meet statutory triggers for conduct‑water or interstate transfer permits; DNR reviewed and concluded no permit required; creating NRDs voted and thereby waived separate NRD permits Court: No applicable permit requirement; DNR had determined permits not needed; NRDs’ board actions constituted approval—no barrier to condemnation
RRCA approval (FSS/augmentation plan) Estermann: FSS requires RRCA approval of augmentation plans before implementation; N‑CORPE needed RRCA signoff before proceeding N‑CORPE: FSS/RRCA approval concerns accounting/credit for augmentation under the Compact, not a precondition to physically constructing or operating a project Court: RRCA approval is required only for accounting/credit under the FSS, not for physical implementation; proposed amendment to add RRCA claim was futile
Common‑law prohibition on exporting groundwater Estermann: Nebraska common law bars transfer of groundwater off overlying land absent statutory exception; N‑CORPE’s actions violate that rule N‑CORPE: Statutes grant NRDs authority to develop, store, transport, and provide water and to undertake augmentation within integrated management plans Court: Legislature authorized augmentation projects and water transport by NRDs (§2‑3238, §46‑715); statutory regime provides the exception—common‑law prohibition does not bar N‑CORPE’s project
Public use for eminent domain Estermann: Project primarily benefits private irrigators; thus not a public use (invokes Burger) N‑CORPE: Primary purpose is to achieve State compliance with the interstate Compact (a clear public purpose); private benefits are incidental Court: Taking is for public use—compact compliance is a public purpose; Burger is distinguishable

Key Cases Cited

  • Kansas v. Nebraska, 135 S. Ct. 1042 (U.S. 2015) (describing the Republican River Compact, the FSS, and RRCA accounting mechanisms)
  • In re Referral of Lower Platte South NRD, 261 Neb. 90 (Neb. 2001) (recognizing common‑law rule against transferring groundwater off overlying land and noting legislative power to create exceptions)
  • Thompson v. Heineman, 289 Neb. 798 (Neb. 2015) (discussion of eminent domain and public purpose principles)
  • Kubicek v. City of Lincoln, 265 Neb. 521 (Neb. 2003) (construction and effect of interlocal/joint entity authority under the ICA)
  • Burger v. City of Beatrice, 181 Neb. 213 (Neb. 1967) (holding condemnor’s taking for private company use was not a public use)
  • State ex rel. Douglas v. Sporhase, 458 U.S. 941 (U.S. 1982) (context on state common law and legislative authority over groundwater transfers)
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