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Little Blue Natural Resources Dist. v. Lower Platte N. Natural Resources Dist.

Citation: 12 ELR 20535
No. No. 44050, 317 N.W.2d 726/210 Neb. 862, (Neb., 03/19/1982)

The court remands the Nebraska Department of Water Resources' issuance of a water appropriations permit to appellee for failure to comply with the Nongame and Endangered Species Conservation Act. Initially, the court determines that appellee's development of the proposed project and the Department's issuance of the permit each constitute an action taken by a state agency within the meaning of the Act. Therefore, both the Department and appellee were obligated to consuit with the Nebraska Game and Parks Commission in planning the project and to determine whether the proposed action would jeopardize the continued existence or modify the habitat of threatened or endangered species inhabiting the Platte River area. Relying on Federal decisions construing the nearly identical Endangered Species Act, the court rules that further evidence in the case is required since the record fails to disclose whether appellee and the Department complied with the Act's requirements. In addition, the court holds that its prior ruling, 10 ELR 20796, which required the Department to determine whether public interest demands required denial of the water permit, is not affected by an amendment to the Nebraska statute relating to transbasin water transfers. The amended statute constitutes a procedural law and, therefore, does not apply retroactively.

Counsel for Appellants
Duane A. Burns
Mayer & Burns
First Nat'l Bank Bldg., Grand Island NE 68802
(308) 384-1120

Lyle B. Gill, City Attorney
505 N. Main St., Fremont NE 68025
(402) 721-7550

George E. Svoboda
Sidner, Svoboda, Schilke, Wiseman & Thomsen
505 N. Main St., Fremont NE 68025
(402) 721-7111

Patrick A. Parenteau
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6800

Counsel for Appellee
Robert B. Crosby, Steven G. Seglin
Crosby, Guenzel, Davis, Kessner & Kuester
400 Lincoln Benefit Bldg., Lincoln NE 68508
(402) 475-5131

Krivosha, J. joined by Boslaugh, McCown, Clinton, Brodkey, White, and Hastings, JJ.