S-23-0028 In re Application A-19594 for an Interbasin Transfer from the Platte River to the Republican River Basin, Division 1-A, 1-B.
Appeal from the Nebraska Department of Natural Resources
Attorneys: Vanessa A. Silke, Steven D. Davidson, Kenneth W. Hartman, and Hannes D. Zetzsche (Baird Holm LLP for Appellants/Cross-Appellees Central Platte NRD, Cozad Ditch Company, Loup River Public Power District, and Lower Loup NRD), Steven C. Smith, Adam A. Hoesing, and Megan A. Dockery (Simmons Olsen Law Firm, P.C., L.L.O. for Appellee/Cross-Appellant North Platte NRD), Justin D. Lavene and Joshua E. Dethlefsen (Asst. Attorneys General for Appellee/Cross-Appellee Nebraska Department of Natural Resources), and Paul J. Peter, Brenna M. Grasz, and Remington S. Slama (Keating, O’Gara, Nedved, & Peter, PC, LLO for Appellee/Cross-Appellee Platte to Republican Basin High Flow Diversion Project)
Water Rights: Standing and Motion to Dismiss
Proceedings below: The Platte to Republican Basin High Flow Diversion Project filed an Amended Application seeking an interbasin transfer from the Platte River Basin to the Republican River Basin. The Appellants/Cross-Appellees and Appellee/Cross-Appellant filed an objection to the Amended Application, but the objections were dismissed for lack of standing. Appellants/Cross-Appellees filed a Petition to Bypass the Court of Appeals, which the Supreme Court sustained and ordered this matter be transferred to its docket.
Issues: Appellant makes the following assignments of error: 1) The Order erred in failing to recognize each Appellant’s rights to object, request a hearing, and initiate a contested case; and 2) The Order erred in dismissing each of the Appellants for alleged lack of standing to object.
Appellee/Cross-Appellant makes the following assignments of error on cross-appeal: 1) The DNR erred in not applying its own regulations regarding interested parties, as the NPNRD has a specific legally protectable interest in the application of the statute governing the Amended Application, which interest is “distinguished from the general interest such as may be the concern of the public at large;” 2) The DNR erred in broadly applying Middle Niobrara II and Cent. Neb. Pub. Power & Irr. Dist. v. North Platte Nat. Res. Dist., 280 Neb. 533 (2010), when Hagan v. Upper Republican Nat. Res. Dist. 261 Neb. 312 (2011) and Ponderosa Ridge, LLC v. Banner Cnty., 250 Neb. 944 (1996) hold that competitive interests in the same water resources confer standing; 3) The DNR erred in applying Middle Niobrara II and Central v. NPNRD to determine the integrated management obligations of NPNRD do not confer standing on the NPNRD; 4) The DNR erred in determining the NPNRD’s unprotected interests in excess flow diversions would be protected in the future, as no competent and relevant evidence on the record supported that determination; and 5) The DNR erred in determining previous conditions of other, unrelated excess flow permits amounted to competent and relevant evidence that any use of the excess flows under the Amended Application would not harm the NPNRD’s integrated management obligations.