Keating v. Nebraska Public Power District, 660 F.3d 1014

Farmers sued under 42 U.S.C. § 1983 alleging procedural due process violations when the DNR issued Closing Notices in 2007 barring junior water users from Niobrara River permits without predeprivation hearings.
The Closing Notices were issued due to a decline in Niobrara Watershed water levels and senior permit holders’ needs.
Plaintiffs argued they held a protected property interest in continued water use and that a predeprivation hearing was required to challenge scarcity determinations and permit validity.
The district court granted summary judgment for appellees, finding no deprivation of a property right and that DNR administration did not trigger due process concerns; it also dismissed pendent state-law claims without prejudice.
On appeal, the Eighth Circuit affirmed, holding appellants had no deprivation of property rights under these circumstances and approved the district court’s handling of state-law claims.
Notes: The district court was authorized to dismiss pendent state-law claims without prejudice under 28 U.S.C. § 1367(c).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellants hold a protectable property interest tied to Niobrara water use.	Keating asserts a property right to use surface water.	DNR’s administration via scarcity determinations governs the right; no deprivation occurs when water is scarce.	No deprivation; property right conditioned by DNR administration.
Whether predeprivation hearings were required or an exception applies.	Predeprivation hearing is required to challenge scarcity and permit validity.	No entitlement to water when scarcity allows restricting use; predeprivation hearing not required.	Predeprivation hearing not required; deprivation not established.
Whether DNR procedures for Closing Notices complied with due process.	Procedural protections were inadequate due process at issue.	Prior appropriation framework and permit terms govern process; notices align with law.	Procedural framework satisfied; due process not violated.

Logan v. Zimmerman Brush Co., 455 U.S. 422 (U.S. 1982) (procedural due process sequencing: deprivation first, then process)
Zinermon v. Burch, 494 U.S. 113 (U.S. 1990) (predeprivation process usually required for liberty or property)
Town of Castle Rock v. Gonzales, 545 U.S. 748 (U.S. 2005) (existence of entitlement requires independent source)
Bd. of Regents v. Roth, 408 U.S. 564 (U.S. 1972) (entitlement defined by existing rules not Constitution)
Paul v. Davis, 424 U.S. 693 (U.S. 1976) (entitlement dimensions tied to state law)
Loup River Pub. Power Dist. v. N. Loup River Power & Irr. Dist., 142 Neb. 141, 5 N.W.2d 240 (Neb. 1942) (water rights as property subject to prior appropriation)
Spear T Ranch, Inc. v. Knaub, 269 Neb. 177, 691 N.W.2d 116 (Neb. 2005) (water right not ownership; public trust aspect)
Idaho Dep’t of Water Res. Amended Final Order Creating Water Dist. No. 170, 220 P.3d 318 (Idaho 2009) (state regulatory entitlement over water rights in scarcity)
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (U.S. 1988) (jurisdiction over pendent state-law claims after federal claims dismissed)
Gibson v. Weber, 431 F.3d 339 (8th Cir. 2005) (28 U.S.C. § 1367(c) discretion to dismiss supplemental state-law claims)