In re Appropriation A-7603
291 Neb. 678
Neb.2015Background
- Appropriation A-7603 granted the Broken Bar Nine Living Trust the right (priority date May 27, 1955) to divert 1.15 cfs from the North Loup River for irrigation of ~126.1 acres in Loup County.
- Department field investigation and verified report found the lands had not been irrigated for more than five consecutive years; two small tracts had been irrigated within the past 15 years, most had not been irrigated for over 15 years.
- The Department issued a Notice of Preliminary Determination of Nonuse (July 26, 2013); the Trust contested and a hearing was held July 31, 2014.
- The Trust conceded it could not show irrigation use during the relevant five-year period and asserted statutory exceptions under Neb. Rev. Stat. § 46-229.04(4)(a)–(d) (trust administration constraints, climatic conditions, good husbandry, destroyed equipment) or that retroactive application was unconstitutional.
- The Department concluded the verified report was prima facie evidence of nonuse, found no sufficient cause under § 46-229.04(4)(a)–(d), and ordered cancellation of the entire appropriation on September 9, 2014.
- The Trust appealed; the Nebraska Supreme Court affirmed the Department’s cancellation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Department’s cancellation was arbitrary, capricious, or unreasonable | Trust argued cancellation scheme and its application here were arbitrary and unconstitutional as applied to a preexisting appropriation | Department argued cancellation followed statutory procedure, burden-shifting, and settled law permitting forfeiture for nonuse after notice/hearing | Court held cancellation was not arbitrary/capricious; statutes and precedent authorize forfeiture for nonuse and are constitutional |
| Whether Trust met § 46-229.04(4)(a) (laws/regulations prevented use) | Trust: trust administration, fiduciary duties, and leasing choices prevented using funds to repair equipment or irrigate | Dept: those were voluntary management choices, not legal prohibitions preventing use | Held: § 46-229.04(4)(a) not satisfied; Trust’s choices do not qualify as legal prevention |
| Whether Trust met § 46-229.04(4)(b) (climatic conditions) | Trust: climatic or drought conditions justified nonuse | Dept: evidence showed 2012 was a drought year when irrigation would have been needed; Trust produced no evidence it used water or had excuse for not using it in drought | Held: § 46-229.04(4)(b) not met |
| Whether Trust met § 46-229.04(4)(c)–(d) (good husbandry; destroyed facilities) | Trust: running cattle and limited water use constitutes prudent husbandry; damaged irrigation equipment and later repair quotes show excuse | Dept: ‘‘good husbandry’’ requires irrigation for an irrigation appropriation; cattle watering is not the permitted use; no evidence of timely, good-faith repairs | Held: § 46-229.04(4)(c) and (d) not met; Hostetler controls that watering cattle does not satisfy irrigation appropriation use, and post-notice quotes do not show good-faith repair efforts |
Key Cases Cited
- In re Water Appropriation Nos. 442A, 461, 462, and 485, 210 Neb. 161 (statutes allowing forfeiture after nonuse are constitutional and enforceable)
- State v. Birdwood Irrigation District, 154 Neb. 52 (establishes policy favoring rigid administration to prevent waste and require beneficial use)
- Hostetler v. State, 203 Neb. 776 (use of water to water cattle does not satisfy an irrigation appropriation)
- In re 2007 Appropriations of Niobrara River Waters, 288 Neb. 497 (standard of review for director’s factual findings and discussion of appropriation law)
- In re Water Appropriation A-4924, 267 Neb. 430 (explains burden-shifting: verified field report is prima facie evidence; burden shifts to appropriator to show use or excuse)