Middle Niobrara Natural Resources District et al. v. Department of Natural Resources and Nebraska Public Power District

Summary

The Nebraska Supreme Court affirmed the Department of Natural Resources’ dismissal of objections to Nebraska Public Power District’s application to appropriate additional surface water from the Niobrara River. The court held that the objecting natural resources districts and a landowner failed to establish standing because their alleged injuries were speculative or insufficiently particularized. A concurrence and dissent disagreed in part regarding the landowner’s alleged injury and the adequacy of his standing allegations.

Holdings

1. The natural resources districts lacked standing to object because their alleged injuries depended on speculation that approval of the application might later lead to a fully appropriated designation and consequent duties or financial burdens.
2. Thomas Higgins lacked standing because his allegations that approval might increase his taxes or affect property values were speculative, and his allegations concerning existing and pending appropriations did not identify a particularized injury to rights that were senior and upstream of the proposed appropriation.
3. The Department applied the proper standard in evaluating the appellants' standing allegations; even assuming the allegations were true and viewing them favorably to the appellants, they did not allege a sufficient interest or actual or imminent injury.
4. The appellants could not establish standing merely by alleging that approval of the water appropriation was contrary to the public interest.

Questions Presented

1. Whether the natural resources districts had standing to object to Nebraska Public Power District's application based on the possibility that approval could contribute to a future fully appropriated designation and related public-funding or tax consequences.
2. Whether Thomas Higgins had standing based on alleged effects on his existing and pending water appropriations, property, taxes, and future water availability.
3. Whether the Department of Natural Resources applied the proper standard in evaluating the appellants' standing allegations.
4. Whether the appellants could establish standing by asserting that approval of the application was contrary to the public interest.

Disposition

affirmed