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In re Application A-18503, Water Division 2-C, Bond v. NRD

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Thursday, May 30, 2013

S-12-1166, In re Application of A-18503, Water Division 2-C, Middle Niobrara Natural Resources District, Lower Niobrara Natural Resources District, Jack Bond and Thomas Higgens (Appellants) v. Department of Natural Resources.

Department of Natural Resources

Attorneys: Donald G. Blankenau, Thomas R. Wilmoth (BlankenauWilmoth Jarecke LLP) (Appellants) --- Stephen D. Mossman (Mattson Ricketts) (for Nebraska Public Power District) --- Justin D. Lavene (Attorney General’s Office)

Civil: water appropriation

Proceedings below:  (From the DNR brief, page 1): This appeal involves DNR's receipt of four objections and requests for a contested case hearing concerning Application A-18503 filed by Nebraska Public Power District ("NPPD") to appropriate surface water from the Niobrara River for its Spencer, Nebraska hydropower facility. Appellants' individually-filed petitions were consolidated and reviewed by the Director in regards to their sufficiency in meeting jurisdictional requirements. The Director issued an Order dismissing Appellants' petitions due to a lack of standing. For the NRD Appellants, the Director found no standing because they failed to plead sufficient facts establishing that approval of NPPD’s application will cause an injury in fact to a legally cognizable interest. As for the individual Appellants, the Director determined the interests they possessed could not be adversely impacted by the granting of the appropriation.

Issues: The director erred in (1) applying an improper standard of review; (2) concluding the NRD Applicants lacked a legally cognizable interest sufficient to confer standing to object to the granting of A-18503; (3) finding the legally cognizable interests of Bond and Higgens would not be adversely affected in a manner sufficient to confer standing; (4) failing to consider broader impacts on the public interest as alleged by all Appellants.

This page was last modified on Thursday, May 30, 2013