Prokop v. Lower Loup NRD
302 Neb. 10
| Neb. | 2019Background
- Lower Loup Natural Resources District (LLNRD), under Nebraska’s Ground Water Management and Protection Act (GWMPA), requires annual operator reports for Phase III subareas that include items such as actual crop yield, nitrogen applied, water applied, and signatures.
- Robert J. Prokop, a long‑time irrigator in a Phase III subarea, submitted incomplete or late annual reports for 2015 and 2016 (missing actual yield, nitrogen, irrigation data, signatures) and had a prior 2013 enforcement action for similar reporting failures.
- LLNRD served a Notice of Intent to Issue Cease and Desist Order (May 2, 2017), held a hearing (May 25, 2017), and after Prokop failed to cure by June 1, 2017, issued a cease and desist order (July 6, 2017) suspending groundwater irrigation for 4 years and ordering completion of the reports.
- Prokop petitioned for judicial review under the APA; the district court conducted a de novo review on the agency record, affirmed the board’s findings but reduced the suspension to 1 year (with up to 3 additional years for continued noncompliance).
- The Nebraska Supreme Court reviewed whether LLNRD: (1) had authority to require actual crop yields; (2) could suspend groundwater access as a penalty; (3) provided adequate procedural due process; and (4) whether the suspension amounted to a taking.
Issues
| Issue | Plaintiff's Argument (Prokop) | Defendant's Argument (LLNRD) | Held |
|---|---|---|---|
| Authority to require actual crop yield data | Rule 7 does not expressly authorize yield data; "other field operations" is ambiguous and does not include yield | Rule 7 and the annual form plainly require yield; "other field operations" reasonably includes actual yield used to assess nitrogen removal | Court upheld LLNRD authority; deference to agency interpretation not plainly erroneous |
| Authority to suspend groundwater access as penalty | §46‑746(1) requires NRDs to list penalties in rules; LLNRD lacked specific rule stating suspension is a penalty for reporting violations | GWMPA authorizes penalties including reduction of allocations; rule 2 authorizes cease and desist enforcement; no separate rule listing required | Court held GWMPA already authorizes suspension; LLNRD may impose such penalties |
| Procedural due process (notice & evidence) | Notice failed to identify specific deficiencies and evidence; no prehearing disclosure impeded defense and review | Notice informed Prokop of incomplete/untimely reports and potential penalties; administrative hearings do not require prehearing discovery or specific evidence lists | Court found notice sufficient and no due process violation; no requirement to preannounce evidence or witnesses |
| Taking without just compensation | Four‑year suspension deprived Prokop of property (use of groundwater) without compensation | Suspension was an exercise of police power to protect public welfare and groundwater quality, not an impermissible taking | Court held suspension was a permissible police power exercise, not a compensable taking (district court’s mitigation of duration upheld) |
Key Cases Cited
- Medicine Creek v. Middle Republican NRD, 296 Neb. 1, 892 N.W.2d 74 (interpretation of NRD authority and APA review)
- Stejskal v. Department of Admin. Servs., 266 Neb. 346, 665 N.W.2d 576 (administrative rule construction)
- Loup City Pub. Sch. v. Nebraska Dept. of Rev., 252 Neb. 387, 562 N.W.2d 551 (statutory "shall" and rulemaking obligations)
- Goodyear Tire & Rubber Co. v. State, 275 Neb. 594, 748 N.W.2d 42 (scope of agency rulemaking duties)
- Cain v. Custer Cty. Bd. of Equal., 298 Neb. 834, 906 N.W.2d 285 (due process standards for administrative hearings)
- Blanchard v. City of Ralston, 251 Neb. 706, 559 N.W.2d 735 (notice requirements where complex remediation issues implicated)
- Marshall v. Wimes, 261 Neb. 846, 626 N.W.2d 229 (limits on administrative subpoenas and due process elements)
- Hill v. State, 296 Neb. 10, 894 N.W.2d 208 (takings analysis and ground water property interest)