In re Appropriation A-7603 ( 2015 )

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IN RE APPROPRIATION A-7603
Cite as 291 Neb. 678
In reA ppropriation A-7603, Water Division 2-A.
Broken Bar Nine Living Trust, appellant,
v. Nebraska Department of Natural
R esources, appellee.
___ N.W.2d ___
Filed August 21, 2015. No. S-14-906.
1. Administrative Law: Statutes: Appeal and Error. In an appeal from
the Department of Natural Resources, an appellate court’s review of the
director’s factual determinations is limited to deciding whether such
determinations are supported by competent and relevant evidence and
are not arbitrary, capricious, or unreasonable; however, on questions of
law, which include the meaning of statutes, a reviewing court is obli-
gated to reach its conclusions independent of the legal conclusions made
by the director.
2. Irrigation: Statutes: Intent: Appeal and Error. Statutory law on the
subject of irrigation and the decisions of the appellate courts dealing
therewith show a clear intention to enforce and maintain a rigid econ-
omy in the use of the public waters of the state.
3. Waters: Irrigation: Administrative Law. Concerning the administra-
tion of public waters, one purpose of the State is to avoid waste and to
secure the greatest benefit possible from the waters available for appro-
priation for irrigation purposes.
4. Waters. It is the policy of statutory law to require a continued beneficial
use of appropriated waters.
5. ____. An appropriator will not be permitted to retain an interest in pub-
lic waters, to which he has a valid appropriation, which is not put to a
beneficial use.
6. Waters: Irrigation: Property: Words and Phrases. In the context of
an appropriation for irrigation, beneficial use requires actual application
of the water to the land for the purpose of irrigation.
7. Waters: Irrigation: Abandonment. At common law, an appropriation
of water for irrigation purposes may be lost by nonuse or abandonment.
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8. Administrative Law: Words and Phrases. A decision is arbitrary when
it is made in disregard of the facts or circumstances and without some
basis which would lead a reasonable person to the same conclusion.
9. Words and Phrases. A capricious decision is one guided by fancy
rather than by judgment or settled purpose.
10. Administrative Law: Words and Phrases. The term “unreasonable”
can be applied to an administrative decision only if the evidence
presented leaves no room for differences of opinion among reason-
able minds.
Appeal from the Department of Natural Resources. Affirmed.
Jovan W. Lausterer, of Bromm, Lindahl, Freeman-Caddy &
Lausterer, for appellant.
Douglas J. Peterson, Attorney General, Justin D. Lavene,
and Emily K. Rose for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Water appropriation A-7603, “Water Division 2-A”
(Appropriation), was a surface water right to divert a specified
volume of water from the North Loup River to “be used for
irrigation purposes only.” The Broken Bar Nine Living Trust
(Trust), the appellant, held the Appropriation and the lands
covered by it. The Nebraska Department of Natural Resources
(Department), the appellee, issued a “Notice of Preliminary
Determination of Nonuse of [the Appropriation]” to the Trust.
After a hearing, the Department concluded that the lands des-
ignated under the Appropriation had not been irrigated for
more than 5 consecutive years and that the Trust had failed
to establish sufficient cause for nonuse under Neb. Rev. Stat.
§ 46-229.04(4) (Reissue 2010). The Department issued an
order canceling the Appropriation in its entirety on September
9, 2014. The Trust appeals. We affirm.
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STATEMENT OF FACTS
The parties generally do not dispute the underlying facts
of this case. In its “Order of Cancellation” dated September
9, 2014, the Department made the following findings of fact,
which are supported by the record:
1. [The Appropriation] is a permit currently shown in
the Department’s records in the name of the . . . Trust
with a priority date of May 27, 1955, to divert 1.15 cubic
feet per second (cfs) of water from the North Loup River
at points of diversion located in the S1⁄2 of Section 10 and
the NE1⁄4NE1⁄4 of Section 15, Township 22 North, Range
20 West of the 6th P.M. in Loup County, for irrigation of
the following described lands (Exhibit 10):
Township 22 North, Range 20 West of the
6th P.M. in Loup County Acres
Section 10: Lot 5 24.8
Lot 6 (E1⁄2SW1⁄4) 32.6
Lot 7 (SW1⁄4SE1⁄4) 16.1
Section 15: NE1⁄4NW1⁄4 3.9
NW1⁄4NE1⁄4 33.8
NE1⁄4NE1⁄4 12.5
SE1⁄4NE1⁄4   2.4
TOTAL 126.1
2. Based upon a verified field investigation report, a
Notice of Preliminary Determination was issued on July
26, 2013, in accordance with Neb. Rev. Stat. §§ 46-229.02
and 46-229.03 [(Reissue 2010)] stating that it appeared
that all of the water appropriation for irrigation of lands
described above had not been used for more than five
consecutive years and that the Department knew of no
reason that constitutes sufficient cause as provided in
. . . § 46-229.04.
3. A contest was filed on August 23, 2013, by [the]
legal representative for [the] Trust.
4. Department staff reviewed the contest and on June
12, 2014, filed a motion for hearing.
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5. Notice of a hearing was issued on June 26, 2014,
and a corrected notice was mailed on July 1, 2014, in
accordance with . . . §§ 46-229.02(5) and 46-229.03.
6. A hearing was held in Lincoln, Nebraska, on July 31,
2014, as provided by . . . § 46-229.04.
7. The Department . . . appeared and was represented
by its attorney. [A] Department staff member . . . was
called as a witness. The Department entered several
exhibits, including a verified field investigation report
which was entered into evidence as Exhibit 1. The field
report indicates that all of the lands included under [the
Appropriation] have not been irrigated for more than
five consecutive years. [The Department staff member’s]
testimony showed that there was sufficient water in the
North Loup River for [the] Appropriation.
8. [The] attorney . . . for [the] Trust [appeared]. In
his opening statement, [the attorney] stated, “I would
concur in that I think it’s important for the Director
and the Department to know that the . . . Trust is not
arguing that there was agricultural beneficial use of the
[A]ppropriation in question during the relevant five-year
time span.”
[The Trust] called . . . one of the trustees . . . as a
witness. [The trustee’s] testimony described the purpose
of the [T]rust, which included providing income to sup-
port his grandmother during her lifetime. [The trustee]
also described the rental agreement the [T]rust had with
its tenant, and the poor shape that the existing irrigation
equipment was in.
[The Trust] entered several exhibits, including: pic-
tures of the irrigation equipment; lease agreements; an
unsigned copy of a trust; and the death certificate of . . .
the recipient of the trust.
Under examination and cross examination, [the
trustee] marked on Exhibit 9 several areas of land that
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are included under [the A]ppropriation . . . and that he
knew had been irrigated in the past. His testimony indi-
cated that two of these areas were last irrigated in 1993,
and one in 1997 or 1998, and two areas were irrigated
approximately eight years ago. He stated that the rest
of the lands under the [A]ppropriation had probably not
been irrigated. . . .
9. In his opening statement, [the attorney for
the Trust] stated that the owners were arguing that
they met the exceptions for nonirrigation under . . .
§ 46-229.04[(4)](a), (b), (c) and (d). In his closing
argument, he again reiterated these four subsections
and described how the Trust had provided testimony
or evidence relating to the four. [The attorney for the
Department] also provided his argument in closing rela-
tive to the exceptions.
Attached to the original Contest filed by [the Trust]
was a document marked Exhibit “A” in which the
Trust asserted that Neb. Rev. Stat. § 46-229 [(Reissue
2010)] is legally unenforceable as against the Trust
and the property as a three year non-use rule was
originally added to the statutory scheme in 1983 and
later amended to a five year rule in 2004. The Trust
asserts that the use restriction did not exist when the
Department issued its [A]ppropriation in 1956 and thus
it would be unconstitutional for the Department to retro-
actively apply this rule against the Trust’s vested water
right. [The Trust] also entered a copy of this document
as part of Exhibit 10.
In its analysis, the Department first determined that Neb.
Rev. Stat. § 46-229 (Reissue 2010) is legally enforceable as
it relates to the Appropriation. The Department quoted In
re Water Appropriation Nos. 442A, 461, 462, and 485, 210
Neb. 161, 164, 313 N.W.2d 271, 274 (1981), which case
states, “‘The [Department of Water Resources] is expressly
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authorized by statute, after notice and hearing, to forfeit a
water right where it appears that the water appropriation has
not been used for some beneficial or useful purpose . . . for
more than three years. . . .’” The Department stated that it
must follow the statutes. The Trust does not directly challenge
this ruling on appeal.
The Department referred to the controlling statutes in its
order. Section 46-229.04 provides for the cancellation of an
appropriation after 5 consecutive years of nonuse. Section
46-229.04(1) states:
(1) At a hearing held pursuant to section 46-229.03,
the verified field investigation report of an employee
of the [D]epartment, or such other report or informa-
tion that is relied upon by the [D]epartment to reach
the preliminary determination of nonuse, shall be prima
facie evidence for the forfeiture and annulment of such
water appropriation. If no person appears at the hearing,
such water appropriation or unused part thereof shall be
declared forfeited and annulled. If an interested person
appears and contests the same, the [D]epartment shall
hear evidence, and if it appears that such water has not
been put to a beneficial use or has ceased to be used
for such purpose for more than five consecutive years,
the same shall be declared canceled and annulled unless
the [D]epartment finds that (a) there has been sufficient
cause for such nonuse as provided for in subsection (2),
(3), or (4) of this section or (b) subsection (5) or (6) of
this section applies.
Section 46-229.04(2) generally provides that sufficient
cause for nonuse shall exist for up to 30 consecutive years if
such nonuse was caused by the unavailability of water. And
§ 46-229.04(3) generally provides that sufficient cause for
nonuse shall exist as a result of inadequate supply or storage
issues. Subsections (2) and (3) of § 46-229.04 are not impli-
cated in the present case.
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Section 46-229.04(4) provides:
(4) Sufficient cause for nonuse shall be deemed to exist
for up to fifteen consecutive years if such nonuse was a
result of one or more of the following:
(a) Federal, state, or local laws, rules, or regulations
temporarily prevented or restricted such use;
(b) Use of the water was unnecessary because of cli-
matic conditions;
(c) Circumstances were such that a prudent person, fol-
lowing the principles of good husbandry, would not have
been expected to use the water;
(d) The works, diversions, or other facilities essential
to use the water were destroyed by a cause not within
the control of the owner of the appropriation and good
faith efforts to repair or replace the works, diversions, or
facilities have been and are being made;
(e) The owner of the appropriation was in active invol-
untary service in the armed forces of the United States or
was in active voluntary service during a time of crisis;
(f) Legal proceedings prevented or restricted use of the
water; or
(g) The land subject to the appropriation is under an
acreage reserve program or production quota or is other-
wise withdrawn from use as required for participation in
any federal or state program or such land previously was
under such a program but currently is not under such a
program and there have been not more than five consecu-
tive years of nonuse on that land since that land was last
under that program.
The [D]epartment may specify by rule and regulation
other circumstances that shall be deemed to constitute
sufficient cause for nonuse for up to fifteen years.
Subsection (5) of § 46-229.04 applies to appropriations held
by an irrigation district, et cetera; subsection (6) applies to
temporary appropriations; and subsection (7) applies to issues
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involving underground storage. These three subsections are
not involved in this case.
The Department concluded that “the verified field investiga-
tion report information is correct, and that the land under [the
Appropriation] has not been irrigated from the North Loup
River for more than five consecutive years.” The Department
noted that two fields of the land at issue were last irrigated 8
years before and that thus, they had been irrigated in the past
15 years. The Department further stated that the rest of the
land under the Appropriation had not been irrigated for more
than 15 years.
The Department determined that there was no evidence to
show that the excusable reasons provided in § 46-229.04(2) or
(3) were applicable in this case for the land that had not been
irrigated for more than 15 years. Therefore, the Department
stated that the “part of the [A]ppropriation attached to lands
not irrigated for more than 15 years should be cancelled as
provided by . . . § 46-229.04.”
With respect to the two tracts of land that had been irri-
gated in the past 8 years, the Department determined that
none of the excusable reasons for nonuse provided in
§ 46-229.04(4)(a), (b), (c), or (d) were established in this case.
The Department stated:
In general, it appears that the reason for nonuse was
that the Trustees chose to lease the property to an indi-
vidual that wanted to raise cattle and did not want to
irrigate due to age, difficulty of irrigation, lack of good
equipment, and the tenant’s intended use of the land.
Based on its determinations, the Department ordered that the
Appropriation be canceled.
The Trust appeals.
ASSIGNMENTS OF ERROR
Restated, the assignments of error which the Trust has both
assigned and argued are as follows: (1) The Department’s
finding that the Appropriation should be canceled is arbitrary,
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capricious, or unreasonable, and (2) the Department erred
when it determined that the Appropriation should be canceled
because it failed to find sufficient cause for the Trust’s nonuse
as provided by § 46-229.04(4)(a) to (d).
STANDARD OF REVIEW
[1] In an appeal from the Department, an appellate court’s
review of the director’s factual determinations is limited to
deciding whether such determinations are supported by com-
petent and relevant evidence and are not arbitrary, capricious,
or unreasonable; however, on questions of law, which include
the meaning of statutes, a reviewing court is obligated to reach
its conclusions independent of the legal conclusions made
by the director. In re 2007 Appropriations of Niobrara River
Waters, 288 Neb. 497, 851 N.W.2d 640 (2014).
ANALYSIS
Summary of Relevant Nebraska
Surface Water Law.
At issue in this case is the Appropriation which authorized
the Trust to divert up to a specified volume of water from the
North Loup River to “be used for irrigation purposes only”
using “the least amount of water necessary for the produc-
tion of crops in the exercise of good husbandry.” Before
addressing the specific issues in this appeal, we set forth some
general principles regarding Nebraska surface water law appli-
cable to this case.
[2,3] The Nebraska Constitution declares the necessity of
water for domestic use and for irrigation purposes in this
state to be a natural want. Neb. Const. art. XV, § 4. The
inadequacy of supply to meet the demands of the public
requires strict administration to prevent waste. State, ex rel.
Cary, v. Cochran, 138 Neb. 163, 292 N.W. 239 (1940). We
have observed:
Our statutory law on the subject of irrigation and the
decisions of this court dealing therewith show a clear
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intention to enforce and maintain a rigid economy in the
use of the public waters of the state. It is the policy of the
law in all the arid states to compel an economical use of
the waters of natural streams. One of the very purposes
of the State in the administration of public waters is to
avoid waste and to secure the greatest benefit possible
from the waters available for appropriation for irrigation
purposes. Farmers Canal Co. v. Frank, 72 Neb. 136, 100
N.W. 286 [(1904)].
State v. Birdwood Irrigation District, 154 Neb. 52, 55, 46
N.W.2d 884, 887 (1951).
[4,5] This case involves an appropriation of surface water
for irrigation. An appropriation right is a right to divert
unappropriated surface water for beneficial use. Neb. Rev.
Stat. § 46-204 (Reissue 2010); In re 2007 Appropriations
of Niobrara River Waters, 278 Neb. 137, 768 N.W.2d 420
(2009). It is “[t]he policy of the law . . . to require a continued
beneficial use of appropriated waters . . . .” State v. Birdwood
Irrigation District, 154 Neb. at 57, 46 N.W.2d at 888. We have
stated “[a]n appropriator will not be permitted to retain an
interest in public waters, to which he has a valid appropriation,
which [is] not put to a beneficial use.” Id. at 58, 46 N.W.2d
at 889.
[6] In the context of an appropriation for irrigation, we
have ruled that beneficial use requires “actual application of
the water to the land for the purpose of irrigation.” Hostetler
v. State, 203 Neb. 776, 781, 280 N.W.2d 75, 78 (1979).
Appropriators who fail to comply with the beneficial use
requirement are subject to cancellation of their rights to use
the water by the Department pursuant to proceedings brought
under § 46-229 and Neb. Rev. Stat. §§ 46-229.02 to 46-229.05
(Reissue 2010).
Appropriation Statutes.
The framework for our consideration of this appeal is found
in chapter 46 of the Nebraska Revised Statutes pertaining to
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“Irrigation and Regulation of Water.” In particular, we apply
§§ 46-229 and 46-229.02 to 46-229.05 which generally cover
the procedural and substantive law pursuant to which an
appropriation may be canceled.
Section 46-229 provides:
All appropriations for water must be for a beneficial
or useful purpose and . . . when the owner of an appro-
priation or his or her successor in interest ceases to
use it for such purpose for more than five consecutive
years, the right may be terminated only by the direc-
tor [of the Department] pursuant to sections 46-229.02
to 46-229.05.
Sections 46-229.02 and 46-229.03 generally address the pro-
cedural aspects of cancellation and provide the following:
the procedure by which the Department makes a preliminary
determination of nonuse, notice of the preliminary determina-
tion of nonuse to the owner of the appropriation, the manner
by which the owner can contest the preliminary determination,
and the format of the hearing at which the decision whether an
appropriation should be canceled is made.
Section 46-229.04, considered in detail below, provides the
substantive principles to be applied to resolve the issue of
whether the appropriation should be canceled, in whole or in
part, for nonuse, and § 46-229.05 provides for an appeal in
accordance with Neb. Rev. Stat. § 61-207 (Reissue 2009).
Regarding § 46-229.04(1), we note that this subsection pro-
vides that at the hearing, the verified field investigation report
preliminarily concluding that there has been nonuse “shall be
prima facie evidence for the forfeiture and annulment” of the
appropriation. If an interested person appears, the Department
shall hear evidence, and
if it appears that such water has not been put to a ben-
eficial use or has ceased to be used for such purpose
for more than five consecutive years, the same shall be
declared canceled and annulled unless the [D]epartment
finds that (a) there has been sufficient cause for such
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nonuse as provided for in subsection (2), (3), or (4)
of this section or (b) subsection (5) or (6) of this sec-
tion applies.
As noted above, § 46-229.04(2) generally provides that
sufficient cause for nonuse shall exist for up to 30 consecu-
tive years if such nonuse was caused by the unavailability of
water. And § 46-229.04(3) generally provides that sufficient
cause for nonuse shall exist as a result of inadequate supply or
storage issues. Subsections (2) and (3) of § 46-229.04 are not
implicated in the present case.
The provisions of § 46-229.04(4)(a) to (d) are at the center
of the Trust’s appeal, and we set them forth again here:
(4) Sufficient cause for nonuse shall be deemed to exist
for up to fifteen consecutive years if such nonuse was a
result of one or more of the following:
(a) Federal, state, or local laws, rules, or regulations
temporarily prevented or restricted such use;
(b) Use of the water was unnecessary because of cli-
matic conditions;
(c) Circumstances were such that a prudent person, fol-
lowing the principles of good husbandry, would not have
been expected to use the water;
(d) The works, diversions, or other facilities essential
to use the water were destroyed by a cause not within
the control of the owner of the appropriation and good
faith efforts to repair or replace the works, diversions, or
facilities have been and are being made.
Arbitrary, Capricious,
or Unreasonable.
As we understand it, the Trust is generally challenging
the scheme by which an appropriation once conferred can be
canceled. That is, the Trust claims that the act of cancellation
is arbitrary, capricious, or unreasonable. We find no merit to
this claim.
[7] To the extent the Trust contends that once an applica-
tion for an appropriation has been approved, the appropriation
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cannot be constitutionally canceled, we reject this argument.
We have observed that at common law, an appropriation of
water for irrigation purposes may be lost by nonuse or aban-
donment. State v. Birdwood Irrigation District, 154 Neb. 52,
46 N.W.2d 884 (1951). Furthermore, our jurisprudence gener-
ally provides that after an appropriation is granted, under the
Nebraska Constitution and the police powers of the State, the
Department, after notice and hearing, continues to regulate
the use of waters of natural rivers and streams. E.g., State, ex
rel. Cary, v. Cochran, 138 Neb. 163, 292 N.W. 239 (1940).
Specifically, as relevant to this case, the constitutionality of
statutes regarding forfeiture of water rights has long been “set-
tled in this state.” See In re Water Appropriation Nos. 442A,
461, 462, and 485, 210 Neb. 161, 165, 313 N.W.2d 271, 274
(1981). See, also, State v. Birdwood Irrigation District, supra;
Dawson County Irrigation Co. v. McMullen, 120 Neb. 245,
231 N.W. 840 (1930); Kersenbrock v. Boyes, 95 Neb. 407,
145 N.W. 837 (1914). We believe the rationale of these cases
based on the necessity for the rigid administration of a scarce
resource (referred to above in our summary of Nebraska sur-
face water law) remains valid, and we have not been provided
a reason to overrule these cases.
[8-10] To the extent the Trust contends that the Department’s
processing of this case and its decision are arbitrary, capri-
cious, or unreasonable, we also reject this argument. We
addressed such a challenge in In re Water Appropriation
A-4924, 267 Neb. 430, 434, 674 N.W.2d 788, 791 (2004),
wherein we stated:
In an appeal from the Department, an appellate court’s
review of the director’s factual determinations is limited
to deciding whether such determinations are supported
by competent and relevant evidence and are not arbitrary,
capricious, or unreasonable. City of Lincoln v. Central
Platte NRD, 263 Neb. 141, 638 N.W.2d 839 (2002). A
decision is arbitrary when it is made in disregard of the
facts or circumstances and without some basis which
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would lead a reasonable person to the same conclusion.
Bethesda Found. v. Buffalo Cty. Bd. of Equal., 263 Neb.
454, 640 N.W.2d 398 (2002). A capricious decision is
one guided by fancy rather than by judgment or settled
purpose. In re Application of Neb. Pub. Serv. Comm.,
260 Neb. 780, 619 N.W.2d 809 (2000). The term “unrea-
sonable” can be applied to an administrative decision
only if the evidence presented leaves no room for dif-
ferences of opinion among reasonable minds. Pittman
v. Sarpy Cty. Bd. of Equal., 258 Neb. 390, 603 N.W.2d
447 (1999).
The record in this case shows that the field investigation
report by a Department staff member was introduced at the
hearing as evidence that the Appropriation should be can-
celed. Section 46-229.04(1) provides that “the verified field
investigation report of an employee of the [D]epartment . . .
shall be prima facie evidence for the forfeiture and annulment
of such water appropriation.” Under the scheme set out in
§ 46-229.04(1), the burden then shifts to an interested party
to present evidence to the Department that the Appropriation
has been put to a beneficial use during the prior 5 consecutive
years or that a recognized excuse for nonuse exists.
We have recognized the burden-shifting analysis described
above in our cases. In In re Water Appropriation A-4924,
supra, we noted that the Department bore the burden to estab-
lish nonuse for the statutory period and that this fact could
be established by the verified report of the Department. Once
the report has been presented, then the appropriator must
show cause why the appropriation should not be terminated.
That is, the language of the statute clearly indicates that the
burden is upon the appropriator to present evidence showing
either that water was taken, contrary to the report filed by the
Department, or that some excuse existed for nonuse.
In this case, the Trust did not contend that the water had
been put to a beneficial use for irrigation during the prior
5 consecutive years. Once it had been established that the
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Appropriation had not been used for more than 5 consecutive
years, it was the burden of the interested party, in this case
the Trust, to present evidence that there was sufficient cause
for nonuse. See § 46-229.04(1). The procedure followed by
the Department was not arbitrary, capricious, or unreasonable.
And as we explain below, the decision itself was supported by
competent and relevant evidence and was not arbitrary, capri-
cious, or unreasonable.
Evidence Regarding Excuse for Nonuse:
§ 46-229.04(4)(a) to (d).
The Trust contends that its evidence established sufficient
cause for nonuse under § 46-229.04(4)(a) to (d) and claims the
Department erred when it did not so find. The record and appli-
cable law do not support the Trust’s contentions, and as such,
the decision to cancel the Appropriation was not arbitrary,
capricious, or unreasonable.
Section 46-229.04(4)(a) generally excuses nonuse where an
appropriator is temporarily prevented from using its appro-
priation by federal, state, or local laws, rules, or regulations.
The Trust refers us to the Uniform Trust Code in general
and contends that its decision to provide income to the trust
beneficiary and its decision to lease the land to its tenant pre-
vented it from using Trust funds for repairing irrigation equip-
ment, growing crops, and ultimately using the Appropriation.
The Department found that these decisions were choices
made by the Trust, but not impediments as contemplated by
§ 46-229.04(4)(a). We agree with the Department.
We recognize that administration of the Trust required
adherence to good faith, see Neb. Rev. Stat. § 30-3866
(Reissue 2008), and prudence, see Neb. Rev. Stat. §§ 30-3869
and 30-3884 (Reissue 2008), for the benefit of the benefi-
ciary, but the Trust has not explained how these obligations
prevented it from making land lease choices which would
have used and preserved its Appropriation asset. In particu-
lar, the 2008 lease between the Trust and its tenant refers
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to the cattle operation to be run by the tenant on the lands
associated with the Appropriation; that is, the Trust chose to
enter into a lease which had the tendency to underutilize the
Appropriation which had been granted for the “production of
crops.” The Trust did not establish it was prevented from using
the Appropriation under trust principles and did not show suf-
ficient cause for nonuse under § 46-229.04(4)(a).
Section 46-229.04(4)(b) generally excuses nonuse where
an appropriator’s nonuse is explained by the weather. That
is, “[u]se of the water was unnecessary because of climatic
conditions.” The Department found the evidence established,
inter alia, that 2012 was a “drought year,” thus establishing
the necessity for use for irrigation in 2012 and a circum-
stance contrary to legitimate nonuse. The evidence included
precipitation tables and testimony. The Trust offered no evi-
dence to show that it either used its Appropriation in 2012 or
had sufficient cause for its failure to use its Appropriation in
the drought year, 2012. The Department did not err when it
determined that the Trust did not establish sufficient cause for
nonuse under § 46-229.04(4)(b).
Section 46-229.04(4)(c) generally excuses nonuse where
an appropriator, following the principles of good husbandry,
would not have been expected to use the water. The Department
correctly rejected the Trust’s claim under this subsection. The
Trust notes that “husbandry” is not defined in the statute,
and the Trust contends that the word “husbandry” should be
read to include using the land and water for cattle. Black’s
Law Dictionary defines “husbandry,” in part, as “[a]gricul-
ture or farming; cultivation of the soil for food.” Black’s Law
Dictionary 859 (10th ed. 2014). Although we do not neces-
sarily endorse the Trust’s reading of “husbandry” as including
cattle operations, the more fundamental reason we reject the
Trust’s interpretation of the statute is that its construction of
§ 46-229.04(4)(c) is not a sensible one. See Walton v. Patil,
279 Neb. 974, 983, 783 N.W.2d 438, 445-46 (2010) (stating
that “in construing a statute, appellate courts are guided by
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the presumption that the Legislature intended a sensible rather
than absurd result in enacting the statute”).
The Trust asserts that properly running a cattle operation
invariably underutilizes an appropriation. The Trust refers us to
the record which shows that the tenant used the property and
minimal water in a cow-calf operation; the Trust asserts that
in doing so, it followed the principles of good husbandry, thus
excusing nonuse. We reject the Trust’s argument.
It is fundamental under §§ 46-229 and 46-229.04 that the
appropriation for water must be put to a beneficial use and
that if it has ceased to be so used for more than 5 consecutive
years, the appropriation is at risk of cancellation. As relevant
to this case, we have stated that “beneficial use requires, in
the case of an appropriation for irrigation purposes, actual
application of the water to the land for the purpose of irriga-
tion.” Hostetler v. State, 203 Neb. 776, 781, 280 N.W.2d 75,
78 (1979).
We have previously rejected an argument similar to that
proffered by the Trust. In Hostetler, supra, we rejected the
contention that the use of creek water subject to an appropria-
tion for irrigation to water cattle was a use within the mean-
ing of the appropriation. It would be an illogical reading of
§ 46-229.04(4)(c) to construe the statute in a manner which
would endorse an outcome antithetical to the strict administra-
tion of the surface water of this state. See State, ex rel. Cary, v.
Cochran, 138 Neb. 163, 292 N.W. 239 (1940). The interpreta-
tion urged upon us by the Trust illustrates the point.
We reject the Trust’s statutory construction which would
effectively have us endorse a nonpermitted use of some amount
of water as an excuse for nonuse of the one described in the
appropriation. We do not agree with the Trust’s reading of
§ 46-229.04(4)(c) and conclude that the Department did not err
when it determined that the Trust did not establish sufficient
cause for nonuse under § 46-229.04(4)(c).
Section 46-229.04(4)(d) generally excuses nonuse where the
works or equipment essential to use the water were destroyed
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by a cause not within the control of the appropriator and good
faith efforts to repair “have been and are being made.” As the
Department correctly found, the evidence upon which the Trust
relies is insufficient.
The Trust refers us to evidence that a “Vermeer boom” was
destroyed in a windstorm “prior to 2000” and that it obtained
quotes for the costs of replacing the nonfunctioning irrigation
equipment. Nothing in the record suggests meaningful good
faith efforts were made to repair such equipment after 2000,
and the quotes to which the Trust refers were obtained after the
Department issued its “Preliminary Determination of Nonuse,”
and there is no evidence that repairs have been pursued.
In an earlier case, we found unpersuasive the “diversion of
some amount of water” only after the Department’s inspection
showed nonuse for the statutory period. See Hostetler v. State,
203 Neb. at 781, 280 N.W.2d at 78. Similarly, we agree with
the Department that obtaining a quote without more only after
the “Preliminary Determination of Nonuse” was issued did not
establish good faith efforts at repair or sufficient cause for non-
use under § 46-229.04(4)(d).
CONCLUSION
For the reasons explained above, we determine the Trust
failed to establish sufficient cause to excuse its nonuse of the
Appropriation and we therefore affirm the Department’s “Order
of Cancellation.”
A ffirmed.
Stephan, J., not participating.