S-13-0702, In re Matter of 2007 Administration of Appropriations of the Waters of the Niobrara River; Joe McClaren Ranch, LLC and Weinreis Brothers Partnership (Appellants) v. Nebraska Public Power District and Nebraska Department of Natural Resources
Nebraska Department of Natural Resources
Attorneys: Jon Bruning, Justin D. Lavene, Emily K. Rose (Attorney General’s Office for DNR) --- Stephen D. Mossman, Patricia L. Vannoy (Mattson Ricketts Davies Stewart & Calkins) (for NPPD)---Donald G. Blankenau, Thomas R. Wilmoth, Vanessa A. Silke (Blankenau Wilmoth Jarecke LLP) (for Appellants) --- Steven C. Smith, Lindsay R. Snyder (Smith Snyder & Petitt) (Amicus Curiae for Nebraska State Irrigation Association)
Civil: water appropriation determination of rights
Proceedings below: This case has been before the Supreme Court, most recently as In re 2007 Administration of Appropriations of the Waters of the Niobrara River, 283 Neb. 629 (2012) (reversed and remanded with directions). Upon remand and further hearing, the Director issued an order finding the theory of common law abandonment had been abrogated by statute. The Director found Appellants failed to meet their burden of proof and there was no evidence of NPPD’s abandonment or forfeiture of rights.
Issues: l. The Department erred when it collaterally attacked the Court's conclusions about common law abandonment and its explicit instructions on remand. 2. The Department erred when it relied upon evidence and actions taken by the hearing officer, who improperly advocated at the hearing. 3. The Department erred when it found Appellants failed to prove NPPD had abandoned its appropriations, in whole or part. 4. The Department erred when it found Appellants failed to prove NPPD had statutorily forfeited its appropriations, in whole or part. 5. To the extent NPPD's appropriations were not abandoned or forfeited in whole or part, the Department erred when it issued closing notices without taking into account the subordination agreements and express limitations in NPPD's appropriations. 6. To the extent NPPD's appropriations were not abandoned or forfeited, the Department erred when it failed to conduct a futile call analysis.