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Bamford v. Upper Republican Natural Resources Dist.

ELR Citation: 25 ELR 20656
Nos. Nos. S-92-562, -563, 512 N.W.3d 642/245 Neb. 299, (Neb., 03/04/1994)

The court upholds a cease and desist order that a state natural resources district issued against a landowner, tenant farmers, and a partnership to prevent them from withdrawing groundwater from their nine wells in excess of their permitted allocation, until the district issued an additional allocation permitting further withdrawals. Appellants' nine wells irrigate five acres that fall within the district's jurisdiction, are within a designated groundwater "control area," and were subject to a district order allocating 75 acre-inches of groundwater per irrigated acre per year for the five-year period beginning January 1, 1988, and ending December 31, 1992. In determining the total allocation available to appellants during that five-year period, the district and appellants agreed to a "pooling" of the nine wells. Under the agreement, total withdrawals from all nine wells could not exceed the five-year allocation of 75 acre-inches per irrigated acre per year. Appellants' withdrawals in 1991 exceeded their pooled allocation for that year by 12 acre-inches per irrigated acre, and after a hearing on February 11, 1992, the district issued its March 12, 1992, cease and desist order to prevent appellants from withdrawing groundwater until it issued another allocation.

The court first holds that issues relating only to the district's cease and desist order are moot, because the order only affected appellants during 1992. The court also holds, however, that it may address appellants' other arguments, because they involve matters of public interest likely to arise in future similar cases.

The court holds that the question whether the groundwater supply was insufficient for all water users was not an issue properly brought before either the district court or the district at its February 11, 1992, hearing. The district settled the question when it entered on August 1, 1977, the order designating the area encompassing appellants' nine wells a control area, which effectively established that the groundwater supply was insufficient for all users of that supply, and no party sought review of that order within the 30 days state law specifies. The court rejects appellants' assertion that they are entitled to a groundwater allocation greater than the 75-acre-inch five-year allocation granted to all wells the district regulates, because appellants did not timely seek review of the district's decision to adopt the order. Thus, the only issue for the district to consider was whether appellants' groundwater withdrawals had exceeded their allocation. Finding that appellants did exceed their allocations, the district properly issued the cease and desist order.

After reviewing all applicable provisions of the Nebraska Ground Water Management and Protection Act, the court holds that the Act provides adequate notice to citizens and adequate enforcement standards for establishing control areas, adopting rules to control water usage, and issuing cease and desist orders to prevent violations of such rules. The court rejects appellants' challenge to the constitutionality of the Act's provisions authorizing the district's issuance of a cease and desist order on the grounds that those provisions are vague and overbroad. Appellants' argument presents only a vagueness question in the form of an assertion that the applicable statutory provisions are an unconstitutional delegation of legislative authority.

The court rejects appellants' argument that the district's issuance of the cease and desist order amounted to a regulatory taking, and that, therefore, the district court erred in failing to award them compensation. The issue of compensation was not before the district court, since appellants' did not seek compensation but rather only sought review of the district's action in issuing the cease and desist order and an injunction to prevent the district's enforcement of that order. Moreover, appellants' analysis fails to support their takings claim.

The court rejects appellants' argument that they can withdraw as much water as necessary to use their land as they chose, in this case, to grow a corn crop. Under the rule of reasonable use, when the groundwater supply is sufficient for all users, a landowner may make reasonable and beneficial use of that supply. In this case, however, the designation of the control area, which included appellants' irrigated land, established that the available supply of water was insufficient for all users. The court also rejects appellants' argument that the cease and desist order deprived them of all economic use of their land during 1992, and that under the U.S. Supreme Court's holding in Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 22 ELR 21104 (1992) they should recover compensation. Appellants' assertions are little more than a claim that because they could not withdraw enough water to grow a corn crop, the cease and desist order deprived them of all economic use of their land. Lucas is inapplicable, because the record fails to show that appellants were, in fact, deprived of all economic use of their property.

Counsel for Appellants
Richard A. Dudden
Padley & Dudden
333 E. Second St., Ogallala NE 69153
(308) 284-6061

Counsel for Appellee
Terry E. Savage
City Attorney's Office
420 Broadway, Imperial NE 69033
(308) 882-4348