Frenchman-Cambridge Irr. Dist. v. Dep't of Nat. Res.
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An irrigation district (FCID) petitioned the Department of Natural Resources (DNR) to reevaluate a portion of the Republican River Basin according to the criteria in Neb. Rev. Stat. 46-713 and to determine whether the basin met the criteria to be considered "overappropriated" rather than "fully appropriated." If the status of the basin was changed to "overappropriated," the DNR could assert more authority over the basin. The DNR denied FCID's petition, finding the statute allowed the DNR to declare a river basin overappropriated only if it was subject to an interstate cooperative agreement. Because the basin was subject to an interstate compact, the DNR declared it did not have the authority to change the status as an interstate compact was not the equivalent of an interstate cooperative agreement. The FCID appealed. The DNR cross-appealed, alleging that FCID failed to demonstrate an injury in fact for standing purposes. The Supreme Court found the FCID failed to plead an injury in fact and therefore did not have standing. The Court dismissed the cause for lack of jurisdiction and did not reach the merits of the litigation.
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the parental preference doctrine and conclude that Alicia had
a superior right to custody of Jaime. If the court had given
proper legal effect to the acknowledgment, the court would
have viewed both Cesar and Alicia as legal parents to Jaime,
and the issues in this case would have, and should have, been
considered within this legal framework. The orders of August
19 and September 16, 2010, are reversed. Because our finding
of plain error resolves this appeal, we need not consider the
assignments of error raised by the parties.
CONCLUSION
We conclude that the district court erred when it failed to
give proper legal effect to the acknowledgment of paternity
that was signed by Cesar and Alicia and notarized at the time
of Jaime’s birth, named Cesar as Jaime’s father, and was
not challenged by Alicia. The acknowledgment established
Cesar as Jaime’s legal father. See § 43-1409. We reverse the
August 19 and September 16, 2010, orders regarding custody
and other issues, and remand the cause to the district court
for further proceedings. In the absence of a challenge to the
acknowledgment, the court should consider the issues raised
in this proceeding regarding custody and support within the
framework that under the applicable statutes, Cesar is legally
Jaime’s father.
R eversed and remanded for
further proceedings.
Heavican, C.J., not participating in the decision.
Wright, J., not participating.
Frenchman-Cambridge Irrigation District, appellant and
cross-appellee, v. Department of Natural R esources,
appellee and cross-appellant.
___ N.W.2d ___
Filed July 29, 2011. No. S-10-608.
1. Parties: Standing: Jurisdiction. A party must have standing before a court can
exercise jurisdiction, and either a party or the court can raise a question of standing at any time during the proceeding.
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2. Standing: Jurisdiction. Standing relates to a court’s power, that is, jurisdiction,
to address issues presented and serves to identify those disputes which are appropriately resolved through the judicial process.
3. Standing. Under the doctrine of standing, a court may decline to determine
merits of a legal claim because the party advancing it is not properly situated
to be entitled to its judicial determination. The focus is on the party, not the
claim itself.
4. Standing: Jurisdiction. Standing requires that a litigant have such a personal
stake in the outcome of a controversy as to warrant invocation of a court’s
jurisdiction and justify exercise of the court’s remedial powers on the litigant’s behalf.
5. Standing: Proof. To have standing, a litigant must clearly demonstrate that it has
suffered an injury in fact. That injury must be concrete in both a qualitative and
temporal sense. The complainant must allege an injury to itself that is distinct and
palpable, as opposed to merely abstract, and the alleged harm must be actual or
imminent, not conjectural or hypothetical.
6. Standing: Statutes: Presumptions: Legislature: Intent. If mere interest in the
outcome of an application was all that was necessary for standing, then every
citizen of the state would have standing to object to an application. In construing
a statute, it is presumed that the Legislature intended a sensible rather than an
absurd result.
7. Standing: Jurisdiction. The requirement of standing is fundamental to a court’s
exercising jurisdiction, and litigants cannot confer subject matter jurisdiction on a
judicial tribunal by either acquiescence or consent.
Appeal from the Department of Natural Resources. Appeal
dismissed.
Jeanelle R. Lust and Katherine S. Vogel, of Knudsen,
Berkheimer, Richardson & Endacott, L.L.P., for appellant.
Jon Bruning, Attorney General, Justin D. Lavene, and Marcus
A. Powers for appellee.
Heavican, C.J., Gerrard, Stephan, McCormack, and MillerLerman, JJ., Inbody, Chief Judge, and Moore, Judge.
Heavican, C.J.
INTRODUCTION
The Frenchman-Cambridge Irrigation District (FCID) appeals
from the decision of the Department of Natural Resources
(DNR) denying FCID’s petition to reevaluate relevant portions
of the Republican River Basin to determine if such areas are
overappropriated. FCID challenges the DNR’s interpretation of
the term “interstate cooperative agreement” as it appears in Neb.
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Rev. Stat. § 46-713(4)(a) (Reissue 2010). FCID alleges that the
status of the basin should be changed from “fully appropriated”
to “overappropriated,” which would allow the DNR to assert
more authority over the basin. Section 46-713(4)(a), as interpreted by the DNR, allows the DNR to declare a river basin
“overappropriated” only if it was subject to an “interstate cooperative agreement” as of July 16, 2004. The Republican River
Basin is currently subject to an “interstate compact,” which
FCID claims is the equivalent of an “interstate cooperative
agreement.” The DNR has cross-appealed, alleging that FCID
failed to demonstrate an injury in fact for standing purposes.
We find that FCID does not have standing, and we therefore
dismiss the cause for lack of jurisdiction and do not reach the
merits of the litigation.
FACTS
Republican River Basin “Interstate Compact.”
FCID holds surface water appropriations for purposes of irrigation within the Republican River Basin. The basin has been
the subject of an interstate compact between Colorado, Kansas,
and Nebraska since 1943, the Republican River Compact
(Compact). On January 19, 1999, the U.S. Supreme Court
granted Kansas’ motion for leave to file a bill of complaint
alleging that Nebraska was using more than its share of water,
as per the 1943 Compact. The special master assigned to the
case found that ground water depletions to streamflow should
be accounted for. In early 2002, the states notified the special
master that they had reached a settlement. The parties filed the
final settlement stipulation (FSS) with the special master, who
recommended approval. The U.S. Supreme Court approved the
FSS on May 19, 2003. The FSS was signed by the governors
and attorneys general of the three states.
See, e.g., Pub. L. No. 78-60, 57 Stat. 86 (1943); 2A Neb. Rev. Stat. appx.
§ 1-106 (Reissue 2008).
Kansas v. Nebraska, 525 U.S. 1101, 119 S. Ct. 865, 142 L. Ed. 2d 767
(1999).
Kansas v. Nebraska, 538 U.S. 720, 123 S. Ct. 1898, 155 L. Ed. 2d 951
(2003).
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The Compact and the FSS require that water usages of each
state fluctuate depending on the water available each year.
During wet years, each state has more available water, while
during dry years, the states have less. The Compact and the
FSS therefore require that Nebraska live within its allocation
of the Republican River Basin supply.
Platte River Basin “Interstate Cooperative Agreement.”
In contrast, the Platte River Basin is subject to an “interstate cooperative agreement” between Nebraska, Wyoming, and
Colorado. The interstate cooperative agreement is a voluntary
agreement between the three states. The states entered into the
first cooperative agreement in 1997, and then entered into a
second agreement in 2006. The cooperative agreements apparently require Nebraska to return to 1997 levels of water usage
for the Platte River Basin. That agreement, which is now called
the Platte River Recovery Implementation Program, does not
apply to the Republican River Basin.
L.B. 962.
The Nebraska Legislature enacted 2004 Neb. Laws, L.B.
962, in order to address the determination of fully appropriated
and overappropriated river basins. L.B. 962 was intended to
implement changes in Nebraska’s water policy. The law was
also intended to “modify the existing law to be more proactive and requirement [sic] certain management actions be taken
jointly by the department and natural resources district in basins
that are declared to be over appropriated (currently this would
be the Platte River Basin above Elm Creek) or fully appropriated.” L.B. 962 modified and expanded the Ground Water
Management and Protection Act, Neb. Rev. Stat. §§ 46-701 to
46-754 (Reissue 2004), which includes the statutes at issue in
this case.
As part of the changes brought about by L.B. 962, the DNR
was required to designate, within 60 days of July 16, 2004,
which river basins were overappropriated under § 46-713(4)(b).
Introducer’s Statement of Intent, L.B. 962, Committee on Natural
Resources, 98th Leg., 2d Sess. (Jan. 21, 2004).
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On September 14, 2004, the DNR designated portions of the
Platte River Basin as overappropriated. In contrast, in 2004,
portions of the Republican River Basin were declared fully
appropriated pursuant to § 46-720(3)(b).
FCID’s Petition for Reconsideration.
FCID is an irrigation district organized under Nebraska’s
irrigation district laws, Neb. Rev. Stat. §§ 46-101 to 46-1,163
(Reissue 2010). As noted, FCID owns water rights for surface
water natural flow within the Republican River Basin for irrigation purposes and receives supplemental stored water from
federal reservoirs. As an irrigation district, FCID provides
surface water for irrigation purposes and is dependent upon the
surface water supply of the basin. Because FCID supplies surface water for irrigation in the basin, the parties stipulated that
it is an “interested” party under § 46-713(2)(a) (Reissue 2010)
and had standing to request a reevaluation of relevant portions
of the basin.
On February 27, 2009, FCID filed a petition requesting the
DNR to reevaluate a portion of the Republican River Basin
according to the criteria in § 46-713. FCID asked the DNR
to determine whether the basin met the criteria to be considered “overappropriated” rather than “fully appropriated.” FCID
claimed the basin should be reclassified.
With its petition, FCID filed information showing that (1)
new scientific data or other information relevant to the determination of whether the Republican River Basin was fully
appropriated or overappropriated had become available since
the basin was last appropriated, (2) the DNR had relied on
incorrect or incomplete information since the basin had last
been evaluated, and (3) the DNR had erred in its interpretation
or application of the information available when the basin had
last been evaluated.
In its order denying FCID’s petition to reevaluate the
Republican River Basin, the DNR noted that it was authorized
to reevaluate a river basin under § 46-713(2) if it had reason to
believe that a reevaluation might lead to a different determination. However, the DNR stated that the criteria for determining whether a basin is overappropriated under § 46-713(4)(a)
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had nothing to do with a scientific or technical determination
of any sort: “The criteria are satisfied only when the State of
Nebraska and the [DNR] had taken certain actions on or before
July 16, 2004, i.e., entered into an interstate cooperative agreement, declared a moratorium on surface water appropriations,
and requested a moratorium on ground water well construction permits.”
The DNR stated that it did not interpret the term “interstate
cooperative agreement” to include interstate compacts. In support of its reasoning, the DNR cited the fact that the Ground
Water Management and Protection Act refers to both “interstate
compacts” and “interstate cooperative agreements” and that the
two terms are not used interchangeably.
The DNR found that the FSS approved by a decree of the
U.S. Supreme Court regarding the Republican River Basin
was not an interstate cooperative agreement, but was part of
the original interstate Compact. Because the basin was not
the subject of an “interstate cooperative agreement,” the DNR
could not find that the basin was overappropriated. FCID
appeals from that determination.
DNR’s Cross-Appeal.
On cross-appeal, the DNR argues that FCID has failed to
allege sufficient facts to establish an injury in fact. Although
the parties stipulated that FCID was an interested party, the
DNR argues that our recent decision in Central Neb. Pub.
Power Dist. v. North Platte NRD (Central) requires an irrigation district to allege an injury in fact, rather than a mere
interest in water rights. FCID argues that § 46-713 provides
that any “interested” party may request a reevaluation, and
that the stipulation overrides any potential insufficiencies in
the record.
ASSIGNMENTS OF ERROR
FCID contends that the DNR’s interpretation of § 46-713(4)
is wrong for three reasons: (1) The Compact and the 2002 FSS
See Kansas v. Nebraska, supra note 3.
Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 788
N.W.2d 252 (2010).
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should satisfy the condition of the statutes; (2) under Neb. Rev.
Stat. § 61-206(1) (Reissue 2009), the DNR has broad authority
to reevaluate the appropriation status of a river basin; and (3)
in so refusing to reevaluate the Republican River Basin, the
DNR has interpreted § 46-713(4) in a manner that violates the
prohibition in Neb. Const. art. III, § 18, against special legislation. On cross-appeal, the DNR assigns as error that it found
that FCID had alleged sufficient facts to demonstrate an injury
in fact for standing purposes.
STANDARD OF REVIEW
[1] A party must have standing before a court can exercise
jurisdiction, and either a party or the court can raise a question
of standing at any time during the proceeding.
ANALYSIS
[2-4] We first address the DNR’s claim on cross-appeal that
FCID lacks standing because it did not plead an injury in fact.
Standing relates to a court’s power, that is, jurisdiction, to
address issues presented and serves to identify those disputes
which are appropriately resolved through the judicial process.
Under the doctrine of standing, a court may decline to determine merits of a legal claim because the party advancing it is
not properly situated to be entitled to its judicial determination.
The focus is on the party, not the claim itself. And standing
requires that a litigant have such a personal stake in the outcome of a controversy as to warrant invocation of a court’s
jurisdiction and justify exercise of the court’s remedial powers
on the litigant’s behalf.10
[5] The DNR cites Central,11 a case we decided after the
DNR issued its final opinion in this case. Although FCID and
the DNR stipulated to the fact that FCID was an interested
10
11
Id.
Id.
Id.
Id.
Id.
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party, the DNR argues that Central requires FCID to plead
an injury in fact in order to have standing. In Central, we
stated that
a litigant first must clearly demonstrate that it has suffered an “‘“injury in fact.”’” That injury must be concrete in both a qualitative and temporal sense. The complainant must allege an injury to itself that is distinct and
palpable, as opposed to merely abstract, and the alleged
harm must be actual or imminent, not conjectural or
hypothetical.12
FCID argues that § 46-713 allows any “interested” party to
request reevaluation of a river basin. FCID claims that it is an
entity with a specific interest in the appropriation status of the
Republican River Basin because it holds surface water appropriation rights within that basin. FCID also claims that if the
basin is overappropriated, its own appropriation rights will not
be satisfied and it will not be able to generate as much revenue. FCID argues that it relied on the DNR’s stipulation and
therefore did not present evidence of an injury in fact. FCID
distinguishes its case from that of Central, because in Central,
the parties did not stipulate that Central Nebraska Public Power
and Irrigation District was an interested party.
The DNR argues that Central changed the traditional understanding that irrigation districts have standing by virtue of
holding water rights. The DNR contends that we now require
that a party state an injury in fact in order to have standing.
The DNR cites Metropolitan Utilities Dist. v. Twin Platte
NRD13 to support its contention that the use of “interested
party” in a statute does not supplant the common-law understanding of standing.
[6] In Metropolitan Utilities Dist., we discussed Neb. Rev.
Stat. § 46-233 (Reissue 1993), which provided that “[a]ll interested parties” be allowed to testify and present evidence in a
public hearing regarding an application for appropriation of
12
13
Id. at 542, 788 N.W.2d at 260.
Metropolitan Utilities Dist. v. Twin Platte NRD, 250 Neb. 442, 550 N.W.2d
907 (1996).
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induced ground water recharge. We stated: “If mere interest in
the outcome of an application was all that was necessary for
standing, then every citizen of the state would have standing to
object to an application. In construing a statute, it is presumed
that the Legislature intended a sensible rather than an absurd
result.”14 The DNR argues that the same logic applies to the
present case and that “interested party” does not supplant the
common-law definition of standing in § 46-713.
We recently had cause to address the definition of an “interested” party as it appears in § 46-713(2). In Middle Niobrara
NRD v. Department of Nat. Resources,15 we discussed what
was necessary to be considered an interested party and determined that the natural resources districts were interested parties
because they were asserting the rights of the taxpayers whose
interests were represented. Specifically, we reasoned that the
DNR’s action triggered duties for the natural resources districts
that would require the entities to spend public funds.16 And the
natural resources districts alleged that the action of the DNR
required regulatory measures that would be costly to the taxpayers in their districts.17
Here, FCID is not asserting the rights of taxpayers, however,
and it has not alleged any specific injury it suffered when the
DNR did not declare the river basin overappropriated. FCID
alleged only that if the basin is overappropriated, its appropriation rights will not be satisfied and it will not be able to raise
enough revenue. FCID did not claim that its appropriation
rights are currently unsatisfied or that it has not been able to
raise enough revenue. This case is more akin to that of Central,
in which the speculative nature of the irrigation district’s claims
was insufficient to plead an injury in fact, which is imperative
to standing.
14
15
16
17
Id. at 451, 550 N.W.2d at 913.
Middle Niobrara NRD v. Department of Nat. Resources, ante p. 634, ___
N.W.2d ___ (2011).
Id.
Id.
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[7] The requirement of standing is fundamental to a court’s
exercising jurisdiction, and litigants cannot confer subject matter jurisdiction on a judicial tribunal by either acquiescence
or consent.18 In this case, FCID and the DNR stipulated to
standing, but FCID made no claim that it had suffered an
injury in fact. Because FCID did not plead an injury in fact,
it does not have standing and we do not have jurisdiction over
FCID’s claims.
CONCLUSION
FCID has failed to plead an injury in fact and therefore has
not established standing. Without standing, we have no jurisdiction over FCID’s claims, and we therefore dismiss for lack
of jurisdiction.
Appeal dismissed.
Wright and Connolly, JJ., not participating.
18
State v. Baltimore, 242 Neb. 562, 495 N.W.2d 921 (1993).
Ronald Fry, appellant, v.
Janet R. Fry, appellee.
___ N.W.2d ___
Filed July 29, 2011. No. S-10-698.
1. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
trial court.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
David A. Domina and, of counsel, Mark D. Raffety, of
Domina Law Group, P.C., L.L.O., for appellant.
Susan A. Anderson and Molly M. Blazek, of Anderson &
Bressman Law Firm, P.C., L.L.O., for appellee.
Heavican, C.J., Connolly, Gerrard, Stephan, McCormack,
and Miller-Lerman, JJ.
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