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State v. Sporhase

Citation: 12 ELR 20246
No. No. 43206, 305 N.W.2d 614/208 Neb. 703, (Neb., 05/08/1981)

The Supreme Court of Nebraska rules that a Nebraska statute conditioning the transfer of Nebraska groundwater across state lines upon the receipt of a permit from the director of the Department of Water Resources is not unconstitutional. The lower court enjoined appellants, owners of adjacent tracts of land in Nebraska and Colorado which were irrigated from a well located in Nebraska, from transporting Nebraska groundwater into Colorado without a permit. Affirming the lower court, the Supreme Court rules that the statute does not violate the Commerce Clause of the U.S. Constitution since, under Nebraska law, groundwater is not an article of commerce; it is a unique commodity owned by the public. The rights of the owner of the overlying land are limited to reasonable use of the groundwater on that land taking into account the needs of other groundwater users in the state. Transfer of water off said land requires permission of the legislature. The court rules that the Nebraska statute does not violate the due process provisions of the Fifth and Fourteenth Amendments since appellants have no private property rights in the groundwater itself and may not transport water without public consent. In addition, the statute's reciprocity provision is not violative of due process as it does not constitute an unconstitutional delegation of legislative power by the Nebraska legislature to the legislature of another state, but is merely one of several conditions that must be satisfied before a permit to transport groundwater across state lines may be granted. The court also rules that the statute does not violate the Equal Protection Clause of the Fourteenth Amendment since the classification it creates is reasonable.

Concurring in part and dissenting in part, one justice would rule that the reciprocity provision creates an unreasonable classification and therefore violates the U.S. and Nebraska Constitutions.

[The U.S. Supreme Court denied certiorari in this case, 50 U.S.L.W. 3446, 12 ELR 05007 — Ed.]

Counsel for Appellants
Peter E. Schoon Jr., George M. Zeilinger
Padley & Dudden
P.O. Box 60, Ogallala NE 69153
(308) 284-6061

Counsel for Respondents
Steven C. Smith, Special Ass't Attorney General
Van Steenberg, Brower, Chaloupka, Mullin & Holyoke
200 Gering Nat'l Bank Bldg., Gering NE 69341
(308) 436-3411

Heard before KRIVOSHA, C.J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.