Estermann v. Bose , 296 Neb. 228 ( 2017 )

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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
296 Nebraska R eports
ESTERMANN v. BOSE
Cite as 296 Neb. 228
J. Daniel Estermann, appellant, v. Bill Bose et al.,
board members of Nebraska Cooperative R epublican
Platte Enhancement Project, a political subdivision
of the State of Nebraska, and Nebraska
Cooperative R epublican Platte Enhancement
Project, a political subdivision of the
State of Nebraska, appellees.
___ N.W.2d ___
Filed April 7, 2017. No. S-15-1022.
1. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings and
admitted evidence show that there is no genuine issue as to any material
facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
4. Pleadings: Appeal and Error. An appellate court reviews a district
court’s denial of a motion for leave to amend a complaint for an abuse
of discretion. However, an appellate court reviews de novo an underly-
ing legal conclusion that the proposed amendments would be futile.
5. Summary Judgment. On a motion for summary judgment, the question
is not how the factual issue is to be decided but whether any real issue
of material fact exists.
6. Summary Judgment: Proof. A party moving for summary judgment
makes a prima facie case for summary judgment by producing enough
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ESTERMANN v. BOSE
Cite as 296 Neb. 228
evidence to demonstrate that the movant is entitled to judgment if the
evidence were uncontroverted at trial.
7. ____: ____. Once the moving party makes a prima facie case, the bur-
den shifts to the party opposing the motion to produce admissible con-
tradictory evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law.
8. Constitutional Law: Eminent Domain: Taxation: Public Purpose.
A citizen’s property may not be taken against his or her will, except
through the sovereign powers of taxation and eminent domain, both of
which must be for a public purpose.
9. Eminent Domain: Public Purpose: Words and Phrases. Eminent
domain is the State’s inherent power to take private property for a pub-
lic use.
10. Constitutional Law: Eminent Domain: Legislature: Statutes. The
State’s eminent domain power resides in the Legislature and exists inde-
pendently of the Nebraska Constitution. But the constitution has limited
the power of eminent domain, and the Legislature can limit its use fur-
ther through statutory enactments.
11. Constitutional Law: Eminent Domain: Public Purpose. Under Neb.
Const. art. I, § 21, the State can take private property only for a public
use and only if it pays just compensation.
12. Eminent Domain: Legislature. Only the Legislature can authorize a
private or public entity to exercise the State’s power of eminent domain.
13. Pleadings. A district court’s denial of leave to amend pleadings is
appropriate only in those limited circumstances in which undue delay,
bad faith on the part of the moving party, futility of the amendment, or
unfair prejudice to the nonmoving party can be demonstrated.
14. Pleadings: Summary Judgment: Proof. After discovery is closed and
a motion for summary judgment has been filed, the appropriate standard
for assessing whether a motion to amend should be determined futile is
that the proposed amendment must be not only theoretically viable but
also solidly grounded in the record and supported by substantial evi-
dence sufficient to give rise to a triable issue of fact.
15. Legislature: Waters. Nebraska’s common law does not allow water
to be transferred off overlying land. But the Legislature may provide
exceptions to this common-law rule.
Appeal from the District Court for Lincoln County: R ichard
A. Birch, Judge. Affirmed.
Amy M. Svoboda, of Svoboda Law Office, and George G.
Vinton for appellant.
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ESTERMANN v. BOSE
Cite as 296 Neb. 228
Donald G. Blankenau and Vanessa A. Silke, of Blankenau,
Wilmoth & Jarecke, L.L.P., for appellees.
Douglas J. Peterson, Attorney General, Justin D. Lavene,
and Kathleen A. Miller, for amicus curiae Nebraska Attorney
General.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Miller-Lerman, J.
NATURE OF CASE
In this case, J. Daniel Estermann, the appellant, filed a com-
plaint for injunction in the district court for Lincoln County
against Bill Bose, Brad Randel, Jerry Weaver, and Terry
Martin, who are board members of the Nebraska Cooperative
Republican Platte Enhancement (N-CORPE) project, a politi-
cal subdivision of the State of Nebraska, and N-CORPE (col-
lectively the appellees), along with other parties who were
later dismissed. Estermann filed this complaint in response
to N-CORPE’s separate condemnation proceedings against
Estermann pending in the county court for Lincoln County, in
which N-CORPE sought an easement across Estermann’s real
estate. Early on in this case, Estermann additionally filed an
application for a temporary restraining order and a motion for
temporary injunction, both of which the district court denied.
The appellees subsequently filed a motion for summary judg-
ment. After a hearing, the district court granted the appel-
lees’ motion for summary judgment and dismissed Estermann’s
complaint. Estermann appeals. We affirm; however, to some
extent, our reasoning differs from that of the district court.
STATEMENT OF FACTS
N-CORPE is a political subdivision of the State of Nebraska
that was created under the Interlocal Cooperation Act (ICA),
Neb. Rev. Stat. § 13-801 et seq. (Reissue 2012), by four
natural resources districts: the Upper Republican, the Middle
Republican, the Lower Republican, and the Twin Platte.
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Each natural resources district (hereinafter NRD) is a politi-
cal subdivision of Nebraska. The four NRD’s entered into
an amended agreement in December 2013, which created
N-CORPE. The amended agreement states that “N-CORPE
shall constitute a separate body corporate and politic of the
State of Nebraska exercising public powers and acting on
behalf of the Parties hereto.” According to the amended agree-
ment, the purpose of N-CORPE is to regulate and manage
water to assist the State with compliance with the Republican
River Compact (Compact). Nebraska, Kansas, Colorado, and
the United States of America are parties to the Compact,
and the Republican River Basin has been the subject of the
Compact since 1943.
In Kansas v. Nebraska, ___ U.S. ___, 135 S. Ct. 1042, 1049,
191 L. Ed. 2d 1 (2015), the U.S. Supreme Court described the
Compact by stating:
The Compact apportions among the three States “the
virgin water supply originating in” . . . the Republican
River Basin. . . . “Virgin water supply,” as used in the
Compact, means “the water supply within the Basin,”
in both the River and its tributaries, “undepleted by the
activities of man.” Compact Art. II. The Compact gives
each State a set share of that supply—roughly, 49% to
Nebraska, 40% to Kansas, and 11% to Colorado—for
any “beneficial consumptive use.” Id., Art. IV; see Art. II
(defining that term to mean “that use by which the water
supply of the Basin is consumed through the activities of
man”). In addition, the Compact charges the chief water
official of each State with responsibility to jointly admin-
ister the agreement. See id., Art. IX. Pursuant to that pro-
vision, the States created the Republican River Compact
Administration (RRCA). The RRCA’s chief task is to
calculate the Basin’s annual virgin water supply by meas­
uring stream flow throughout the area, and to determine
(retrospectively) whether each State’s use of that water
has stayed within its allocation.
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In 2002, the Compact was modified via a “Final Settlement
Stipulation” (FSS), which was approved by the U.S. Supreme
Court in Kansas v. Nebraska, supra.
In furtherance of its purpose to assist the State with com-
pliance with the compact, the amended agreement creating
N-CORPE states that N-CORPE’s business is to be conducted
by a board and that each of the NRD’s is to have a member on
the board. The amended agreement provides that “N-CORPE
shall have all the powers, privileges and authority exercised or
capable of being exercised by each of the individual and sepa-
rate Parties [NRD’s] to achieve the purposes of the N-CORPE
as set forth in this Agreement and as may be otherwise pro-
vided for in the [ICA].”
In the condemnation case, Lincoln County Court case No.
CI 14-496, N-CORPE filed an amended petition to condemn
in March 2014. N-CORPE stated in its amended petition that
it was developing a “stream flow augmentation project” in
Lincoln County in order to manage ground water and surface
water in the Republican River Basin and to comply with the
Compact. N-CORPE alleged in its amended petition that its
project and petition were in response to the claim of the State
of Kansas that it was not receiving its share of the Republican
River water that was due to it under the Compact. N-CORPE
stated in its amended petition that a portion of the water aug-
mentation project was located over Estermann’s real estate
in Lincoln County and that therefore, N-CORPE was seek-
ing a permanent “Flowage and Right-of-Way Easement” over
Estermann’s real estate in order to augment waterflow into
Medicine Creek, which is a tributary of the Republican River.
After N-CORPE filed its amended petition to condemn, on
April 1, 2014, Estermann filed the complaint in this case seek-
ing an injunction against the appellees and Jeffrey Bain, Kent
Florom, and Michael Nozicka. The latter three defendants were
appraisers appointed by the county court for Lincoln County;
they were subsequently dismissed as parties and are not parties
to this appeal.
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ESTERMANN v. BOSE
Cite as 296 Neb. 228
Estermann alleged in his complaint that as a result of
N-CORPE’s water augmentation project his real estate has
flooded, causing increasing and irreparable damage to his land
and crops, and that the floodwaters are creating new creek
channels and are threatening to lower the water table under
his fields. Estermann alleged that N-CORPE does not have
the power of eminent domain, because “the [L]egislature has
not delegated such powers to interlocal agencies under the
[ICA]” and because the NRD’s do not have the authority to
delegate to N-CORPE any eminent domain powers they may
hold. Estermann further alleged in his complaint that (1) the
condemnation is not for a public use; (2) the amount of real
estate being condemned is excessive in duration and area; (3)
means other than an eminent domain action are available to the
parties; (4) N-CORPE failed to obtain approvals and permits
from certain agencies, including the Lincoln County Board of
Commissioners, the Middle Republican NRD, the Twin Platte
NRD, and the Nebraska Department of Natural Resources
(DNR); (5) N-CORPE failed to obtain approval of the water
augmentation project from Kansas; and (6) N-CORPE is pro-
hibited under Nebraska’s common law from transferring ground
water off overlying land, and N-CORPE does not fall under
any of the statutory exceptions to the common law. Therefore,
Estermann requested that N-CORPE be enjoined from proceed-
ing with the condemnation proceedings in case No. CI 14-496
and that N-CORPE be enjoined from discharging water into
Medicine Creek.
On the day Estermann filed his complaint for injunction,
Estermann also filed an application in which he sought a tem-
porary restraining order enjoining N-CORPE from proceed-
ing with the eminent domain action and enjoining N-CORPE
from discharging water into Medicine Creek. Two days later,
on April 3, 2014, the district court filed an order in which it
denied Estermann’s application for a temporary restraining
order. In denying the application, the district court stated that
“the failure to grant a temporary restraining order will not
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impair [Estermann’s] ability to proceed on his Complaint for
an Injunction.”
On April 16, 2014, Estermann filed a motion for temporary
injunction that would enjoin N-CORPE from discharging water
into Medicine Creek. Estermann alleged that the discharge of
water into Medicine Creek during the pendency of the action
would produce great irreparable injury to him. Estermann
further alleged that N-CORPE does not have the power of
eminent domain and therefore is not entitled to condemn an
easement over his real estate. Estermann also alleged that he
did not have an adequate remedy at law.
On April 30, 2014, the office of the Attorney General filed
a motion for leave to file an amicus brief, in which it stated
that it sought to offer guidance regarding an opinion that was
issued by the Attorney General and its impact on the court’s
interpretation of § 13-804 of the ICA, which generally deals
with public agencies exercising joint power. See Att’y Gen.
Op. No. 03026 (Dec. 5, 2003). The district court granted
the motion.
On May 15, 2014, the district court filed an order in which
it denied Estermann’s motion for temporary injunction. In the
May 15 order, the district court determined that Estermann did
not establish that he had a clear right to the relief he sought
or that he would suffer a great or irreparable injury during
the pendency of the litigation. The district court stated that
Estermann’s main argument in support of his request for a tem-
porary injunction was that the NRD’s that created N-CORPE
cannot authorize N-CORPE to exercise the power of eminent
domain. The district court rejected this argument.
In its order, the court noted that N-CORPE was created by
the four NRD’s pursuant to the ICA. The court recognized
that pursuant to Neb. Rev. Stat. § 2-3234 (Reissue 2012),
each of the NRD’s has the power of eminent domain. Relying
on § 13-804 of the ICA, the court further recognized that the
NRD’s can authorize N-CORPE to exercise any of their powers
or authority, including the power of eminent domain. Section
13-804(1) provides:
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ESTERMANN v. BOSE
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Any power or powers, privileges, or authority exercised
or capable of exercise by a public agency of this state
may be exercised and enjoyed jointly with any other
public agency of this state and jointly with any public
agency of any other state or of the United States to the
extent that laws of such other state or of the United
States permit such joint exercise or enjoyment. Any
agency of state government when acting jointly with any
public agency may exercise and enjoy all of the powers,
privileges, and authority conferred by the [ICA] upon a
public agency.
The district court noted in its May 15, 2014, order that
although the evidence showed that Estermann would sustain
damages from the water augmentation project, the evidence
did not support a conclusion that he would “suffer a great
or irreparable injury” before his complaint could be heard.
Accordingly, the district court denied Estermann’s motion for
temporary injunction.
On June 5, 2015, the appellees filed a motion for summary
judgment. On July 17, Estermann filed a motion for leave
to file an amended complaint, in which he proposed to add
a claim that the acts of N-CORPE were improper because
N-CORPE had not obtained approval from the Republican
River Compact Administration (RRCA) for the water augmen-
tation project.
On October 2, 2015, the district court filed an order
regarding the appellees’ motion for summary judgment and
Estermann’s motion for leave to file an amended complaint.
The district court first denied Estermann’s motion for leave to
file an amended complaint, stating that “any issues raised in
the Amended Complaint can be dealt with under the original
complaint. As such, the amendment is futile and the Motion for
Leave to Amend Complaint is therefore overruled.”
The district court observed that Estermann disagreed with
the policies that led to N-CORPE’s petitioning to condemn
and acquire an easement across his property. The district court
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stated that “[t]hose public policy decisions are constitutionally
entrusted to other branches of government.”
The district court next rejected Estermann’s argument that
the condemnation does not meet a public purpose. The dis-
trict court stated that “complying with Nebraska’s obligation
. . . under an interstate compact is certainly a public purpose.”
The court stated that the burden placed on Estermann by
the condemnation does not eliminate the public purpose of
the condemnation.
The district court further stated in its October 2, 2015, order
that in its previous order filed May 15, 2014, the court had
concluded that the NRD’s had properly authorized N-CORPE
to exercise the power of eminent domain. The district court
stated that it believed that decision was correct and concluded
that it “again holds that each of the four [NRD’s] that formed
N-CORPE has the power of eminent domain [and] that such
authority . . . was properly exercised by N-CORPE.”
The district court then rejected Estermann’s argument that
even if N-CORPE had the authority to condemn the easement,
it did not have the authority to transport water across his prop-
erty within the easement area. With respect to Estermann’s
contention that the common law prohibits N-CORPE from
transferring ground water off the property on which it was
pumped, the district court recognized that we stated in In re
Referral of Lower Platte South NRD, 261 Neb. 90, 94, 621
N.W.2d 299, 303 (2001), that “Nebraska’s common law does
not allow water to be transferred off overlying land.” The
district court stated, however, that we went on to state that
“‘[t]he Legislature has the power to determine public policy
with regard to ground water and . . . it may be transferred from
the overlying land only with the consent of and to the extent
prescribed by the public through its elected representatives.’”
Id., quoting State ex rel. Douglas v. Sporhase, 208 Neb. 703,
305 N.W.2d 614 (1981), reversed on other grounds 458 U.S.
941, 102 S. Ct. 3456, 73 L. Ed. 2d 1254 (1982). The district
court concluded that by enacting statutes “relating to” NRD’s,
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the Legislature modified the common law and removed any
common-law prohibition against N-CORPE’s transfer of water
off the overlying property.
With respect to Estermann’s argument that N-CORPE does
not have the necessary permits from the DNR to operate the
water augmentation project, the district court determined that
even though Estermann had standing to challenge the tak-
ing of the easement, he did not have standing to challenge
whether N-CORPE has the permits needed to use the ease-
ment. The district court further stated that even if Estermann
had standing, he was not in the appropriate forum to raise
that issue.
Based upon the foregoing, the district court determined
that there were no material issues of fact in dispute, and it
determined that the appellees were entitled to judgment as a
matter of law. The district court granted the appellees’ motion
for summary judgment and dismissed Estermann’s complaint
with prejudice.
Estermann appeals.
ASSIGNMENTS OF ERROR
Estermann claims, restated, that the district court erred
when it (1) determined that N-CORPE has authority to exer-
cise the power of eminent domain, (2) failed to determine
that certain permits and approvals had to be obtained and set
forth in writing before N-CORPE could proceed in eminent
domain, (3) determined that Estermann did not have standing
to challenge whether N-CORPE lacked required permits and
authority, (4) determined that Estermann was not in the appro-
priate forum to contest N-CORPE’s lack of certain permits and
approvals, (5) failed to determine that the county court did not
have jurisdiction over N-CORPE’s amended petition to con-
demn, (6) denied Estermann’s motion for leave to amend his
complaint for injunction, (7) determined that Nebraska com-
mon law does not prohibit N-CORPE from removing ground
water from overlying land, and (8) failed to find there were
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material issues of fact as to whether N-CORPE’s condemna-
tion action was for a public use.
STANDARDS OF REVIEW
[1,2] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. Bixenmann v. Dickinson Land Surveyors, 294
Neb. 407, 882 N.W.2d 910 (2016), modified on denial of
rehearing 295 Neb. 40, 886 N.W.2d 277. In reviewing a sum-
mary judgment, an appellate court views the evidence in the
light most favorable to the party against whom the judgment
was granted and gives that party the benefit of all reasonable
inferences deducible from the evidence. Id.
[3] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d
589 (2016).
[4] We review a district court’s denial of a motion for leave
to amend a complaint for an abuse of discretion. See Bailey v.
First Nat. Bank of Chadron, 16 Neb. Ct. App. 153, 741 N.W.2d
184 (2007). See, also, Gonzalez v. Union Pacific RR. Co., 282
Neb. 47, 803 N.W.2d 424 (2011). However, as we explain
in greater detail later in this opinion, we review de novo an
underlying legal conclusion that the proposed amendments
would be futile. Bailey v. First Nat. Bank of Chadron, supra.
ANALYSIS
Estermann generally claims that the district court erred
when it granted the appellees’ motion for summary judgment.
We address Estermann’s specific assignments of error below.
Because we find no merit to any of Estermann’s assignments of
error, we affirm the decision of the district court.
[5] The principles regarding summary judgment are well
established. On a motion for summary judgment, the question
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is not how the factual issue is to be decided but whether
any real issue of material fact exists. Cisneros v. Graham,
294 Neb. 83, 881 N.W.2d 878 (2016). In reviewing a sum-
mary judgment, an appellate court views the evidence in the
light most favorable to the party against whom the judgment
was granted and gives such party the benefit of all reason-
able inferences deducible from the evidence. Strode v. City
of Ashland, 295 Neb. 44, 886 N.W.2d 293 (2016). Summary
judgment is proper when the pleadings and evidence admitted
at the hearing disclose no genuine issue regarding any material
fact or the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law. Id.
[6,7] A party moving for summary judgment makes a prima
facie case for summary judgment by producing enough evi-
dence to demonstrate that the movant is entitled to judgment if
the evidence were uncontroverted at trial. Cisneros v. Graham,
supra. Once the moving party makes a prima facie case, the
burden shifts to the party opposing the motion to produce
admissible contradictory evidence showing the existence of
a material issue of fact that prevents judgment as a matter of
law. Id.
N-CORPE Has the Authority to
Exercise Eminent Domain.
Estermann claims that the district court erred when it con-
cluded that the NRD’s that created N-CORPE properly autho-
rized N-CORPE to use the power of eminent domain and that
N-CORPE properly possessed authority to exercise eminent
domain. Because we agree with the district court’s legal con-
clusions, we find no merit to this assignment of error.
[8,9] As an initial matter, we first summarize the nature of
eminent domain. Every citizen has the constitutional right to
acquire, own, possess, and enjoy property. See Neb. Const.
art. I, § 25. A citizen’s property may not be taken against his
or her will, except through the sovereign powers of taxation
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and eminent domain, both of which must be for a public pur-
pose. Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 731
(2015). See, also, Burlington Northern Santa Fe Ry. Co. v.
Chaulk, 262 Neb. 235, 631 N.W.2d 131 (2001); Burger v. City
of Beatrice, 181 Neb. 213, 147 N.W.2d 784 (1967). Eminent
domain is the State’s inherent power to take private property
for a public use. Thompson v. Heineman, supra.
[10-12] The State’s eminent domain power resides in
the Legislature and exists independently of the Nebraska
Constitution. Thompson v. Heineman, supra. But the con-
stitution has limited the power of eminent domain, and the
Legislature can limit its use further through statutory enact-
ments. Id. Under Neb. Const. art. I, § 21, the State can take
private property only for a public use and only if it pays
just compensation. Thompson v. Heineman, supra. See, also,
Burlington Northern Santa Fe Ry. Co. v. Chaulk, supra. Only
the Legislature can authorize a private or public entity to exer-
cise the State’s power of eminent domain. Id.
Under § 2-3234, the Legislature has delegated the power of
eminent domain to NRD’s to carry out their authorized pur-
poses. Section 2-3234 provides in part: “Except as provided in
sections 2-3226.11 and 2-3234.02 to 2-3234.09, each district
shall have the power and authority to exercise the power of
eminent domain when necessary to carry out its authorized
purposes within the limits of the district or outside its bound­
aries.” Accordingly, the four NRD’s that formed N-CORPE
each had the power of eminent domain.
Pursuant to the ICA, the NRD’s may exercise their author-
ity and other powers alone or jointly with other local govern-
mental units. Nebraska permits interlocal agreements pursuant
to the ICA. Kubicek v. City of Lincoln, 265 Neb. 521, 658
N.W.2d 291 (2003). The ICA’s purpose is “to permit local gov-
ernmental units to make the most efficient use of their taxing
authority and other powers by enabling them to cooperate with
other localities on a basis of mutual advantage and thereby to
provide services and facilities.” See § 13-802.
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Under § 13-804(2), two or more public agencies may enter
into agreements with one another for joint or cooperative
action under the ICA. See City of Falls City v. Nebraska Mun.
Power Pool, 279 Neb. 238, 777 N.W.2d 327 (2010). The ICA
authorizes the creation of a joint entity whose express author-
ity is limited to executing the enumerated powers of the agen-
cies which created it. Section 13-803(1) of the ICA provides
that for purposes of the ICA, “[j]oint entity shall mean an
entity created by agreement pursuant to section 13-804.” As
quoted earlier in this opinion, with respect to joint entities,
§ 13-804(1) provides:
Any power or powers, privileges, or authority exercised
or capable of exercise by a public agency of this state
may be exercised and enjoyed jointly with any other
public agency of this state and jointly with any public
agency of any other state or of the United States to the
extent that laws of such other state or of the United
States permit such joint exercise or enjoyment. Any
agency of state government when acting jointly with any
public agency may exercise and enjoy all of the powers,
privileges, and authority conferred by the [ICA] upon a
public agency.
Section 13-804(2) provides:
Any two or more public agencies may enter into agree-
ments with one another for joint or cooperative action
pursuant to the [ICA]. Appropriate action by ordinance,
resolution, or otherwise pursuant to law of the governing
bodies of the participating public agencies shall be neces-
sary before any such agreement may enter into force.
With respect to how the ICA is to be construed, § 13-825
provides:
The provisions of the [ICA] shall be deemed to pro-
vide an additional, alternative, and complete method for
the doing of the things authorized by the act and shall
be deemed and construed to be supplemental and addi-
tional to, and not in derogation of, powers conferred
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upon political subdivisions, agencies, and others by law.
Insofar as the provisions of the [ICA] are inconsistent
with the provisions of any general or special law, admin-
istrative order, or regulation, the provisions of the [ICA]
shall be controlling.
Estermann claims that the district court erred when it deter-
mined that N-CORPE had the authority to exercise the power
of eminent domain. Estermann contends that the Legislature
did not specify in the ICA or elsewhere that an interlocal
agency created pursuant to the ICA could have the power of
eminent domain. Estermann further asserts that
the only way an interlocal agency could have condemna-
tion powers is if the Nebraska Legislature had included
language in the ICA to the effect that all agencies created
under the ICA have eminent domain power or perhaps
language to the effect that any such agency does possess
eminent domain powers so long as the government agen-
cies that created it have those powers.
Brief for appellant at 22. Estermann contends that only the
Legislature is capable of delegating eminent domain power and
that because the Legislature did not explicitly state that interlo-
cal agencies, such as N-CORPE, may have eminent domain
power, N-CORPE does not have the power to exercise eminent
domain. We disagree.
In December 2013, the four NRD’s formed N-CORPE by
entering into an amended agreement pursuant to the ICA. As
stated above, pursuant to § 2-3234, the NRD’s that formed
N-CORPE each had the power of eminent domain. Under
§ 13-804, local governmental units are authorized to jointly
exercise their individually held authority and powers through
a joint entity created under the ICA. Therefore, because the
NRD’s that formed N-CORPE each individually held the
power of eminent domain, the NRD’s were able to jointly
exercise that individually held power through the mechanism
of the joint entity they created, i.e., N-CORPE, and thus,
N-CORPE was authorized to exercise the power of eminent
domain. When the NRD’s formed N-CORPE as a joint entity
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under the ICA, they did not lose any of the powers, privileges,
or authorities that they separately held, including the power of
eminent domain. Instead, the powers, privileges, and authori-
ties that the NRD’s were capable of exercising separately
could be exercised and enjoyed jointly with the other NRD’s
through the mechanism of their joint entity, N-CORPE. See
§ 13-804(1).
The foregoing description of the N-CORPE’s authority to
act and the simultaneous power of eminent domain retained by
the NRD’s is in accord with § 13-825, which provides:
The provisions of the [ICA] shall be deemed to pro-
vide an additional, alternative, and complete method for
the doing of the things authorized by the act and shall be
deemed and construed to be supplemental and additional
to, and not in derogation of, powers conferred upon polit-
ical subdivisions, agencies, and others by law.
(Emphasis supplied.) Thus, under § 13-825, the formation
of N-CORPE did not remove or degrade powers that the
Legislature had already granted to the NRD’s by statute. Rather,
the formation by the NRD’s of the joint entity N-CORPE under
the provisions of the ICA created a method of exercising
eminent domain which was “supplemental and additional to,
and not in derogation of, powers” conferred on the NRD’s.
Statutory language is to be given its plain and ordinary mean-
ing, and an appellate court will not resort to interpretation
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous. Stewart v. Nebraska Dept. of Rev.,
294 Neb. 1010, 885 N.W.2d 723 (2016). Under the clear lan-
guage of §§ 13-804 and 13-825, N-CORPE is authorized by the
ICA to serve as the method to exercise the power of eminent
domain to the extent that eminent domain had been conferred
on the NRD’s.
We have previously recognized that the authority and pow-
ers of governmental entities can be exercised and enjoyed
jointly with other governmental entities through a joint entity
created pursuant to the ICA. See Kubicek v. City of Lincoln,
265 Neb. 521, 658 N.W.2d 291 (2003). Although Kubicek
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did not directly involve the issue of the exercise of the power
of eminent domain, we find its description of a joint entity
useful. In Kubicek, we noted that three governmental entities
created a joint entity—referred to as the “joint administrative
agency”—pursuant to an interlocal cooperation agreement for
the purpose of completing a project. This court stated that
“[b]efore the creation of [the joint agency], each partner had
the statutory authority to implement certain aspects of the
project. Together, through [the joint agency], the three part-
ners have complete statutory authority to implement the whole
project.” Kubicek v. City of Lincoln, 265 Neb. at 523-24, 658
N.W.2d at 294. Accordingly, the joint entity was able to exer-
cise the express powers and authorities that were held by the
governmental agencies which created it. Similarly, in this case,
N-CORPE may exercise the powers and authorities that were
held individually by the four NRD’s that created it pursuant to
the ICA, namely the power of eminent domain.
For these reasons, we determine that the district court did
not err when it concluded that N-CORPE had the authority to
exercise the power of eminent domain. We find no merit to this
assignment of error.
N-CORPE Did Not Lack Necessary
Permits or Approvals.
Estermann claims that the district court erred when it failed
to determine that N-CORPE was required to obtain permits and
approvals from the DNR and the NRD’s in order to implement
and operate the N-CORPE project and to utilize the easement
over Estermann’s property. We find no merit to this assignment
of error.
Neb. Rev. Stat. § 76-704 (Reissue 2009) provides: “If any
condemnee shall fail to agree with the condemner with respect
to the acquisition of property sought by the condemner, a peti-
tion to condemn the property may be filed by the condemner in
the county court of the county where the property or some part
thereof is situated.” Estermann claims that N-CORPE failed to
comply with Neb. Rev. Stat. § 76-704.01(7) (Reissue 2009),
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which provides that if approval of another agency is required,
“[a] petition filed pursuant to section 76-704, shall . . . set forth
the approval in writing of such agency.” Estermann asserts
that N-CORPE failed to obtain such approvals as required
by § 76-704.01 and set forth said approvals in its petition
to condemn.
We note that the district court determined that Estermann
does not have standing to challenge whether N-CORPE has the
permits needed to use the easement and that even if Estermann
did have standing, he was not in the appropriate forum within
which to raise the issue. Assuming without deciding that
Estermann had standing and was in the proper forum, as set
forth below, we determine that N-CORPE was not required to
obtain the permits and approvals alleged by Estermann. And in
view of our resolution of the permits issue, we do not address
Estermann’s assignments of error to the effect that the district
court erred when it determined that Estermann did not have
standing to challenge N-CORPE’s lack of permits and that he
was not in the appropriate forum to raise the issue. See In re
Interest of Jackson E., 293 Neb. 84, 87, 875 N.W.2d 863, 866
(2016) (“[a]n appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and contro-
versy before it”).
Estermann first asserts that that N-CORPE was required to
obtain a permit from the DNR to conduct water into or along
natural channels pursuant to Neb. Rev. Stat. § 46-252 (Reissue
2010). We will refer to this as a “conduct water permit.”
Section 46-252 generally provides that a conduct water permit
allows a permit holder to utilize naturally occurring waterways
to move a quantity of water from one point to another. A con-
duct water permit is required if an applicant wants the DNR to
monitor and protect the quantity of water as it moves down-
stream. Section 46-252 provides in part:
(1) Any person may conduct, either from outside the
state or from sources located in the state, quantities of
water over and above those already present into or along
any of the natural streams or channels of this state, for
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purposes of instream beneficial uses or withdrawal of
some or all of such water for out-of-stream beneficial
uses, at any point without regard to any prior appro-
priation of water from such stream, due allowance being
made for losses in transit to be determined by the [DNR].
The [DNR] shall monitor movement of the water by
meas­urements or other means and shall be responsible for
assuring that such quantities are not subsequently diverted
or withdrawn by others unless they are authorized to do
so by the person conducting the water.
(2) Except as provided in subsections (3) and (4)
of this section, before any person may conduct water
into or along any of the natural streams or channels of
the state, he or she shall first obtain a permit from the
[DNR]. Application for the permit shall be made on
forms provided by the [DNR]. Applications shall include
plans and specifications detailing the intended times,
amounts, and streamreach locations and such other infor-
mation as required by the [DNR]. The water subject to
such a permit shall be deemed appropriated for the use
specified in the permit. Permitholders shall be liable
for any damages resulting from the overflow of such
stream or channel when water so conducted contributed
to such overflow.
The exceptions set forth in subsections (3) and (4) of § 46-252
are not applicable to this case.
Although the N-CORPE project adds quantities of water to
the stream, it does not require a conduct water permit, because
unlike the scenarios described in § 46-252, N-CORPE is not
attempting to guarantee that a certain quantity of water is used
for a beneficial use or reaches a certain point downstream for a
particular use. Rather, the purpose of the N-CORPE project is
simply to add water to the Republican River Basin in order to
offset water depletion.
We note that while some of the water eventually reaches
Kansas, this does not mean that a conduct water permit is
required. A conduct water permit provides protection for a
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quantity of water as it travels along from one point to another.
Estermann points to the fact that the State of Wyoming was
granted a water conduct permit under § 46-252 to conduct water
in the North Platte River from Wyoming’s Pathfinder Reservoir
to Nebraska’s Kingsley Reservoir in order to comply with
Wyoming’s obligations under the Nebraska-Wyoming settle-
ment agreement and the Platte River Recovery Implementation
Program. Estermann contends that because Wyoming obtained
a water conduct permit, one is required herein. We do not
agree. According to the undisputed record, Wyoming sought
the permit in order to protect the amount of water it was con-
ducting in the North Platte River from the Wyoming-Nebraska
State line for delivery to the Kingsley Reservoir in Nebraska.
In contrast, in this case, N-CORPE is augmenting the flow
of water into Medicine Creek to the Republican River Basin,
but it is not attempting to guarantee the delivery of a specific
quantity of water past the headwaters of Medicine Creek.
Under the circumstances, N-CORPE does not need a conduct
water permit pursuant to § 46-252.
Estermann also asserts that N-CORPE was required to
obtain a permit from the DNR to transfer ground water pursu-
ant to Neb. Rev. Stat. § 46-613.01 (Reissue 2010) in order to
construct and operate the project. Pursuant to § 46-613.01, a
ground water transfer permit requires that “[a]ny person, firm,
city, village, municipal corporation, or other entity intend-
ing to withdraw ground water from any water well located
in the State of Nebraska and transport it for use in another
state shall apply to the [DNR] for a permit to do so.”
(Emphasis supplied.)
The purpose of the N-CORPE project is to increase the
amount of water available in the Republican River Basin, but it
is not the purpose of the N-CORPE project to transport water
explicitly for use in Kansas. Because the N-CORPE proj-
ect does not seek to transport water for use in another state,
N-CORPE did not need to obtain a ground water transfer per-
mit pursuant to § 46-613.01. Compare, Sporhase v. Nebraska
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ex rel. Douglas, 458 U.S. 941, 102 S. Ct. 3456, 73 L. Ed. 2d
1254 (1982) (concerning applicant with contiguous tracts in
Nebraska and Colorado who pumped ground water from well
in Nebraska to irrigate applicant’s tracts in both Nebraska and
Colorado); Ponderosa Ridge LLC v. Banner County, 250 Neb.
944, 554 N.W.2d 151 (1996) (concerning applicant with con-
tiguous tracts in Wyoming and Nebraska who sought ground
water transfer permit to irrigate farmland in Wyoming with
water from well in Nebraska).
We additionally note that our resolution of the DNR permit
issues is supported by the record which shows that the DNR
was fully aware of the N-CORPE project. Specifically, the
record shows that the director of the DNR and the predecessor
acting director of the DNR determined that N-CORPE did not
require a permit under either § 46-252 or § 46-613.01.
Estermann also argues that N-CORPE was required under
its respective rules and regulations to obtain permits from the
Middle Republican NRD and the Twin Platte NRD before
operating the N-CORPE project. The Middle Republican NRD
and the Twin Platte NRD are two of the four NRD’s that cre-
ated the joint entity, N-CORPE, for the purposes of completing
the N-CORPE project. Pursuant to the amended agreement
that created N-CORPE, each of the four NRD’s had a mem-
ber on the board with a vote regarding the construction and
operation of the N-CORPE project. During the construction
and operation of the N-CORPE project, neither the Middle
Republican NRD nor the Twin Platte NRD required N-CORPE
to obtain a permit from these individual NRD’s. We determine
that by voting in favor of the N-CORPE project, the Middle
Republican NRD and the Twin Platte NRD have concluded
that the N-CORPE project is in compliance with their rules
and regulations and have waived the necessity of individual
permits, if otherwise required.
Because we determine that N-CORPE was not required to
obtain the permits specified by Estermann, we find no merit to
this assignment of error.
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The District Court’s Ruling That the
County Court Had Jurisdiction Over
N-CORPE’s Amended Petition
to Condemn Was Not Error.
Estermann claims that the district court erred when it
failed to rule that the county court for Lincoln County in case
No. CI 14-496 did not have jurisdiction over N-CORPE’s
amended petition to condemn because N-CORPE failed to
comply with § 76-704.01 by failing to obtain certain permits
and approvals. Even assuming that the district court could
properly entertain this issue collaterally challenging the juris-
diction of the county court in the condemnation case, given
our resolution of the permits issue, this assignment of error
would be unavailing.
The District Court Did Not Err When It
Denied Estermann’s Motion to Amend
His Complaint for Injunction.
Estermann claims that the district court erred when it denied
his motion to amend his complaint for injunction. We find no
merit to this assignment of error.
We first address the proper standard of review regarding
a district court’s denial of a motion to amend the pleadings.
We note that this court has previously stated that we review a
district court’s decision on a motion for leave to amend a com-
plaint for an abuse of discretion. See Gonzalez v. Union Pacific
RR. Co., 282 Neb. 47, 803 N.W.2d 424 (2011). However, in
Bailey v. First Nat. Bank of Chadron, 16 Neb. Ct. App. 153, 741
N.W.2d 184 (2007), the Nebraska Court of Appeals addressed
a case that was procedurally similar to the present case, and the
considerations in Bailey and the instant case cause us to refine
our standard of review.
In Bailey, the court assessed whether the district court had
properly denied a request to amend a complaint after a motion
for summary judgment had been filed but before the district
court had ruled on the motion. With their motion to amend,
the plaintiffs sought to add additional theories of recovery to
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the theories set forth in the initial complaint. The district court
denied the motion to amend, and the plaintiffs appealed.
The Court of Appeals in Bailey noted that prior to Bailey,
the Nebraska appellate courts had not discussed the stan-
dard of review for denial of a motion to amend filed under
Nebraska’s new rules for notice pleading, specifically, Neb.
Ct. R. of Pldg. § 6-1115(a) (previously codified as Neb. Ct. R.
of Pldg. in Civ. Actions 15(a) (rev. 2003)). Section 6-1115(a)
provides:
A party may amend the party’s pleading once as a mat-
ter of course before a responsive pleading is served or,
if the pleading is one to which no responsive pleading is
permitted, the party may amend it within 30 days after
it is served. Otherwise a party may amend the party’s
pleading only by leave of court or by written consent of
the adverse party, and leave shall be freely given when
justice so requires. A party shall plead in response to an
amended pleading within the time remaining for response
to the original pleading or within 10 days after service of
the amended pleading, whichever period may be longer,
unless the court otherwise orders.
The Court of Appeals in Bailey acknowledged that
Nebraska’s current notice pleading rules are modeled after the
Federal Rules of Civil Procedure and that Nebraska courts may
therefore look to federal decisions for guidance. See Kellogg
v. Nebraska Dept. of Corr. Servs., 269 Neb. 40, 690 N.W.2d
574 (2005). Similarly to Nebraska’s § 6-1115(a), Fed. R. Civ.
P. 15(a)(2) provides that once a responsive pleading has been
filed, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave. The court should
freely give leave when justice so requires.”
[13] With respect to the denial of leave to amend under the
Federal Rules of Civil Procedure, it has been stated by a fed-
eral appellate court:
“Under the liberal amendment policy of Federal Rule of
Civil Procedure 15(a), a district court’s denial of leave
to amend pleadings is appropriate only in those limited
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circumstances in which undue delay, bad faith on the
part of the moving partly [sic], futility of the amend-
ment, or unfair prejudice to the non-moving party can
be demonstrated.”
Bailey v. First Nat. Bank of Chadron, 16 Neb. Ct. App. at 163, 741
N.W.2d at 193, quoting Roberson v. Hayti Police Dept., 241
F.3d 992 (8th Cir. 2001). We have similarly stated that “[a] dis-
trict court’s denial of leave to amend pleadings is appropriate
only in those limited circumstances in which undue delay, bad
faith on the part of the moving party, futility of the amendment,
or unfair prejudice to the nonmoving party can be demon-
strated.” Golnick v. Callender, 290 Neb. 395, 400, 860 N.W.2d
180, 187 (2015).
Federal courts generally review the denial of a motion to
amend for an abuse of discretion. See, e.g., In re K-tel Intern.,
Inc. Securities Litigation, 300 F.3d 881 (8th Cir. 2002). This
is consistent with that standard of review generally applied in
review of such motions in Nebraska. See, Golnick v. Callender,
supra; Gonzalez v. Union Pacific RR. Co., 282 Neb. 47, 803
N.W.2d 424 (2011). However, in Bailey v. First Nat. Bank of
Chadron, 16 Neb. Ct. App. 153, 741 N.W.2d 184 (2007), the Court
of Appeals noted that the U.S. Court of Appeals for the Eighth
Circuit reviews de novo the underlying legal conclusion of
whether a proposed amendment would have been futile. The
Bailey opinion stated:
Federal courts generally review the denial of a motion
to amend for an abuse of discretion. See, In re K-tel
Intern., Inc. Securities Litigation, 300 F.3d 881 (8th Cir.
2002); 6 Charles Alan Wright et al., Federal Practice and
Procedure § 1484 (2d ed. 1990). Federal case law from
the Eighth Circuit indicates, however, that the Eighth
Circuit reviews de novo the underlying legal conclusion
of whether the proposed amendments to a complaint
would have been futile. See, Marmo v. Tyson Fresh
Meats, Inc., 457 F.3d 748 (8th Cir. 2006); U.S. ex rel.
Joshi v. St. Luke’s Hosp., Inc., 441 F.3d 552 (8th Cir.
2006) (citing U.S. ex rel. Gaurdineer & Comito, L.L.P.
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v. Iowa, 269 F.3d 932 (8th Cir. 2001)), cert. denied 549
U.S. 881, 127 S. Ct. 189, 166 L. Ed. 2d 142. See, also,
Corsello v. Lincare, Inc., 428 F.3d 1008 (11th Cir. 2005)
(underlying legal conclusion of whether particular amend-
ment to complaint would have been futile is reviewed
de novo); Miller v. Calhoun County, 408 F.3d 803 (6th
Cir. 2005) (where district court draws legal conclusion
that amendment would be futile, conclusion is reviewed
de novo).
16 Neb. Ct. App. at 163-64, 741 N.W.2d at 193.
In Bailey, the Court of Appeals adopted the federal stan-
dards of review outlined above. In doing so, the Court of
Appeals stated that “we review the district court’s denial of
the [appellants’] motion to amend under Nebraska’s rule 15(a)
[now codified as § 6-1115(a)] for an abuse of discretion.
However, we review de novo any underlying legal conclusion
that the proposed amendments would be futile.” Id. at 164, 741
N.W.2d at 193.
Notably, since Bailey was decided, all the federal cir-
cuit courts have adopted the standard that an appellate court
reviews de novo the underlying legal conclusion of whether the
proposed amendments to a complaint would have been futile.
See, e.g., Thomas v. Chevron U.S.A., Inc., 832 F.3d 586 (5th
Cir. 2016); Maiden Creek Assocs. v. U.S. Dept. of Transp., 823
F.3d 184 (3d Cir. 2016); Osborn v. Visa Inc., 797 F.3d 1057
(D.C. Cir. 2015); Runnion v. Girl Scouts of Greater Chicago,
786 F.3d 510 (7th Cir. 2015); Giorgio Foods, Inc. v. U.S., 785
F.3d 595 (Fed. Cir. 2015); Barnes v. Harris, 783 F.3d 1185
(10th Cir. 2015); U.S. ex rel. Ahumada v. NISH, 756 F.3d 268
(4th Cir. 2014); Mills v. U.S. Bank, NA, 753 F.3d 47 (1st Cir.
2014); Panther Partners v. Ikanos Communications, 681 F.3d
114 (2d Cir. 2012); Carvalho v. Equifax Information Services,
LLC, 629 F.3d 876 (9th Cir. 2010).
We agree with the Court of Appeals’ holding in Bailey,
and we now hold that an appellate court generally reviews
the denial of a motion to amend a complaint for an abuse of
discretion; however, an appellate court reviews de novo an
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underlying legal conclusion that the proposed amendments
would be futile.
In Bailey v. First Nat. Bank of Chadron, 16 Neb. Ct. App. 153,
741 N.W.2d 184 (2007), the Court of Appeals expressed the
appropriate method to be used in assessing whether the pro-
posed amendment should be denied on the basis of its futility.
In Hayes v. County of Thayer, 21 Neb. Ct. App. 836, 842-43, 844
N.W.2d 347, 353-54 (2014), the Court of Appeals described
Bailey as follows:
In Bailey, supra, we quoted Hatch [v. Department for
Children, Youth & Families, 274 F.3d 12 (1st Cir. 2001)],
in which the First Circuit expressed that if leave to amend
is not sought until after discovery is closed and a motion
for summary judgment has been docketed, the proposed
amendment must be not only theoretically viable but
also solidly grounded in the record and supported by
substantial evidence. We also quoted the Second Circuit’s
expression [in Milanese v. Rust-Oleum Corp., 244 F.3d
104 (2d Cir. 2001),] that in such a situation, the proposed
amendment may be considered futile when the evidence
in support of the proposed new claim creates no triable
issue of fact and would not survive a motion for sum-
mary judgment.
Based on its analysis of the standards set forth by the First
and Second Circuits, the Court of Appeals ably concluded
in Bailey:
We find the explanations and rationale used and
applied by the First and Second Circuits to be sound and
hold that if leave to amend is sought under Nebraska’s
rule 15(a) before discovery is complete and before a
motion for summary judgment has been filed, the ques-
tion of whether such amendment would be futile is judged
by reference to Neb. Ct. R. of Pldg. in Civ. Actions
12(b)(6) (rev. 2003) [now codified as Neb. Ct. R. of Pldg.
6-1112(b)(6)]. Leave to amend in such circumstances
should be denied as futile only if the proposed amend-
ment cannot withstand a rule 12(b)(6) motion to dismiss.
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If, however, the rule 15(a) motion is made in response to
a motion for summary judgment and the parties have pre-
sented all relevant evidence in support of their positions,
then the amendment should be denied as futile only when
the evidence in support of the proposed amendment cre-
ates no triable issue of fact and the opposing party would
be entitled to judgment as a matter of law.
16 Neb. Ct. App. at 169, 741 N.W.2d at 196-97.
[14] In Hayes, the Court of Appeals stated that “[b]oth the
notion that ‘substantial evidence’ must be presented and the
notion that the evidence must be such as would create a ‘tri-
able issue of fact’ that could survive summary judgment are
expressions of the same standard.” 21 Neb. Ct. App. at 843, 844
N.W.2d at 354. In Hayes, the plaintiffs had filed a motion to
amend the complaint after discovery had been closed and the
defendant had filed a motion for summary judgment, and in
fact, the district court had already sustained the defendant’s
motion for summary judgment and entered judgment in favor
of the defendant. Based upon the reasoning set forth in Bailey,
the Court of Appeals stated in Hayes that “the appropri-
ate standard for assessing whether [the plaintiffs’] motion to
amend should be determined futile is that the proposed amend-
ment must be not only theoretically viable but also solidly
grounded in the record and supported by substantial evidence
sufficient to give rise to a triable issue of fact.” Id. at 844, 844
N.W.2d at 354.
In the present case, we apply this standard set forth above
to assess Estermann’s claim that the district court erred when
it denied his motion to amend the complaint. Estermann filed
his motion to amend the complaint after discovery had been
completed and after N-CORPE had filed its motion for sum-
mary judgment. In his appellate brief, Estermann states that
although he alleged in his original complaint that N-CORPE
failed to obtain necessary approval from Kansas, he did not
allege in his original complaint that N-CORPE was required
to obtain approval specifically from RRCA. Estermann sought
to include the specific allegation that N-CORPE failed to
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obtain approval from RRCA in his proposed amended com-
plaint. In denying Estermann’s motion for leave to amend his
complaint, the district court stated that any issues raised in
the proposed amended complaint could “be dealt with under
the original complaint,” and “[a]s such, the amendment is
futile . . . .”
As stated above, Nebraska, Kansas, Colorado, and the
United States of America are parties to the Compact, and the
Republican River Basin has been the subject of the Compact
since 1943. The Compact allocates to each of the states an
agreed-upon share of the water supply within the Republican
River Basin—roughly 49 percent to Nebraska, 40 percent to
Kansas, and 11 percent to Colorado. Pursuant to the Compact,
the States created the RRCA to calculate the Republican River
Basin’s annual virgin water supply and to determine whether
each State’s use of that water is within its allocation under the
Compact. See Kansas v. Nebraska, ___ U.S. ___, 135 S. Ct.
1042, 191 L. Ed. 2d 1 (2015).
In 2002, the Compact was modified via the FSS, which was
approved by the U.S. Supreme Court in Kansas v. Nebraska,
supra. The Court stated that the FSS “established detailed
mechanisms to promote compliance with the Compact’s terms.”
135 S. Ct. at 1050. The FSS “aim[s] to accurately measure the
supply and use of the Basin’s water, and to assist the States in
staying within their prescribed limits.” Id. This is done through
detailed accounting procedures and the utilization of a ground
water model that are set forth in the FSS.
In support of his argument, Estermann points to section
III.B.1.k. of the FSS, which states that a moratorium on new
wells shall not apply to:
Wells acquired or constructed by a State for the sole
purpose of offsetting stream depletions in order to com-
ply with its Compact Allocations. Provided that, such
Wells shall not cause any new net depletion to stream
flow either annually or long-term. The determination of
net depletions from these Wells will be computed by the
RRCA Groundwater Model and included in the State’s
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ESTERMANN v. BOSE
Cite as 296 Neb. 228
Computed Beneficial Consumptive Use. Augmentation
plans and related accounting procedures submitted under
this Subsection III.B.1.k. shall be approved by the RRCA
prior to implementation.
(Emphasis supplied.) Estermann asserts that the N-CORPE
project is such an “augmentation plan” that requires approval
by the RRCA prior to the N-CORPE project’s implementation.
Brief for appellant at 37.
We disagree that this or any other section of the FSS
requires N-CORPE to obtain the RRCA’s approval prior to the
construction or operation of the N-CORPE project. This sec-
tion of the FSS refers to the fact that the RRCA must approve
augmentation plans and related changes to the RRCA account-
ing procedure before a State may receive augmentation credit.
The term “augmentation plan” does not refer to the actual
construction or operation of the project itself, but, rather, an
augmentation plan under the FSS sets forth the methods for
how to calculate the augmentation credit the State wishes
to receive that will be taken into account when considering
whether the State has complied with its allocated percentage of
use of the virgin water supply in the Republican Riven Basin
under the Compact. An augmentation plan does not require
that the RRCA approve the actual construction or operation of
such project.
Our reading of the FSS is consistent with the record. The
primary author of the N-CORPE augmentation plan explained
that the DNR developed the N-CORPE augmentation plan
“consistent with the straightforward methodologies of the
RRCA Accounting Procedures and Reporting Requirements.”
He further explained that the N-CORPE augmentation plan
“provides an example of the accounting method that would
be used to quantify the [augmented water supply] Credit.”
Thus, although RRCA approval would be necessary to approve
the N-CORPE augmentation plan and the related account-
ing procedures in order to receive an augmentation credit,
the FFS does not require RRCA approval for the physical
construction and operation of the N-CORPE project. Stated
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ESTERMANN v. BOSE
Cite as 296 Neb. 228
another way, to the extent the State wishes to alter the amount
of credit it receives for augmentation water under the FSS
accounting procedures, it would need to obtain approval from
the RRCA, but the RRCA’s approval is not a prerequisite
to N-CORPE’s physically implementing the project itself
or its operation. Therefore, N-CORPE was not required to
obtain the approval of the RRCA before implementing the
N-CORPE project.
Because we determine that N-CORPE was not required to
obtain the approval of the RRCA in order to implement the
augmentation plan, Estermann’s proposed amendment to his
complaint is not theoretically viable and it is not supported by
substantial evidence sufficient to give rise to a triable issue of
fact. See Hayes v. County of Thayer, 21 Neb. Ct. App. 836, 844
N.W.2d 347 (2014). Therefore, upon our de novo review, we
determine the district court did not err when it determined
that Estermann’s proposed amendment was futile and denied
his motion to amend his complaint. We find no merit to this
assignment of error.
District Court Did Not Err When It Determined
That Common Law Does Not Prohibit
N-CORPE From Removing Ground
Water From Overlying Land.
Estermann claims that the district court erred when it
determined that Nebraska common law does not prohibit
N-CORPE from removing ground water from the overlying
land. We find no merit to this assignment of error.
As an initial matter, we clarify that Estermann does not
claim that he has an interest in ground water that is being
adversely impacted by the fact that N-CORPE is withdrawing
ground water from a well field and releasing that water into
Medicine Creek to augment the flow of the water. Compare
In re Referral of Lower Platte South NRD, 261 Neb. 90,
621 N.W.2d 299 (2001) (concerning landowner’s objection
to withdrawal and transfer of ground water from his prop-
erty, where ground water was being transferred away from
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ESTERMANN v. BOSE
Cite as 296 Neb. 228
overlying land to neighbor’s property, and landowner argued
there was significant adverse effect upon him).
[15] We have previously stated that Nebraska’s common law
does not allow water to be transferred off overlying land. See
In re Referral of Lower Platte South NRD, supra. However, we
have made it clear that the Legislature may provide exceptions
to this common-law rule. See id. We have stated:
“Since the Nebraska common law of ground water per-
mitted use of the water only on the overlying land, legis-
lative action was necessary to allow for transfers off the
overlying land, even for as pressing a need as supplying
urban water users.
“. . . [T]he Legislature has the power to determine pub-
lic policy with regard to ground water and . . . it may be
transferred from the overlying land only with the consent
of and to the extent prescribed by the public through its
elected representatives.”
In re Referral of Lower Platte South NRD, 261 Neb. at 94, 621
N.W.2d at 303, quoting State ex rel. Douglas v. Sporhase, 208
Neb. 703, 305 N.W.2d 614 (1981), reversed on other grounds
458 U.S. 941, 102 S. Ct. 3456, 73 L. Ed. 2d 1254 (1982).
With the general rule that the Legislature may provide
exceptions to the common-law prohibition of the transfer of
ground water off the overlying land in mind, we turn to the
present case. In this regard, we note that Neb. Rev. Stat.
§ 2-3238 (Reissue 2012), provides that each NRD
shall have the power and authority to develop, store
and transport water, and to provide, contract for, and
furnish water service for domestic purposes, irrigation,
milling manufacturing, mining, metallurgical, and any
and all other beneficial uses, and to fix the terms and
rates therefor. Each district may acquire, construct, oper-
ate, and maintain dams, reservoirs, ground water storage
areas, canals, conduits, pipelines, tunnels, and any and all
works, facilities, improvements, and property necessary
therefor. No district shall contract for delivery of water
for irrigation uses within any area served by any irrigation
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ESTERMANN v. BOSE
Cite as 296 Neb. 228
district, public power and irrigation district, or reclama-
tion district, except by consent of and written agreement
with such irrigation district, public power and irrigation
district, or reclamation district.
Neb. Rev. Stat. § 46-715 (Cum. Supp. 2016) provides that an
NRD may create an integrated management plan in order to
manage a river basin, subbasin, or reach. N-CORPE is such
an integrated management plan, and one of its purposes is to
augment the flow of Medicine Creek in order to manage the
water level in the Republic River Basin. N-CORPE does so by
withdrawing ground water from a well field in Nebraska and
releasing the water into Medicine Creek to augment the flow.
The Legislature has specifically authorized NRD’s to utilize
augmentation projects as part of an integrated management
plan. See § 46-715(3)(e).
Components of a series or collection of statutes pertain-
ing to a certain subject matter are in pari materia and should
be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are con-
sistent, harmonious, and sensible. In re Interest of Tyrone K.,
295 Neb. 193, 887 N.W.2d 489 (2016). Reading these statutes
in pari materia, we determine that NRD’s have the power
and authority to transport water and that they may do so by
utilizing an augmentation project as part of an integrated
management plan. Therefore, the district court did not err
when it determined that N-CORPE is not prohibited by com-
mon law from utilizing ground water to augment the flow of
Medicine Creek.
No Issue of Material Fact Exists as to
Whether N-CORPE’s Condemnation
Meets a Public Purpose.
Estermann claims that the district court erred when it failed
to find that there were issues of material fact regarding whether
N-CORPE’s condemnation action was for a public use. He con-
tends that these issues preclude entry of summary judgment.
We find no merit to this assignment of error.
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It is well settled that it is essential that property taken
under the power of eminent domain be for a public use and
not a private one. Burlington Northern Santa Fe Ry. Co. v.
Chaulk, 262 Neb. 235, 631 N.W.2d 131 (2001). In support
of his argument that N-CORPE’s easement is not for a public
use, Estermann relies on Burger v. City of Beatrice, 181 Neb.
213, 147 N.W.2d 784 (1967). Estermann’s reliance on Burger
is misplaced.
In Burger, the landowners sought to enjoin a city from
proceeding in eminent domain to obtain easements over their
property to install wells and withdraw ground water beneath
the surface of their lands. This court determined that the with-
drawal of the ground water was largely for the private use of
two private companies. We noted that although the benefit of
the easements to the companies may furnish some employment
and increase business in the area, “such a public interest does
not constitute a public purpose under the power of eminent
domain.” Id. at 223, 147 N.W.2d at 791. Accordingly, this court
determined that the purpose of the easements was for a private
use, not a public use, and that therefore, it was not proper
under eminent domain.
Estermann argues that just as in Burger, the easement
sought by N-CORPE is for private use, not public use, because
the N-CORPE project’s purpose is to help private irrigators.
However, at the hearing on the motion for summary judg-
ment, the district court received evidence which described in
detail how N-CORPE’s project would be operated and what
the purpose of the project was. The purpose was to augment
flows of Medicine Creek to offset surface water depletions
through the Republican River Basin in order to achieve the tar-
get flows identified in the Compact. The evidence shows that
the overriding purpose of the N-CORPE project is to achieve
compliance with the Compact; any use by private irrigators
is incidental to this purpose. Further, the evidence indicates
that the State’s “[f]ailure to comply with the . . . Compact can
expose the State of Nebraska to significant liability.” Unlike
in Burger, where the easements sought were for a private
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ESTERMANN v. BOSE
Cite as 296 Neb. 228
use, even viewing the evidence in a light most favorable to
Estermann, the purpose of the easement sought by N-CORPE
is for a public use. Therefore, we determine that the district
court did not err when it determined that N-CORPE’s condem-
nation action is for a public use.
CONCLUSION
As explained above, we determine generally that the district
court did not err when it granted the appellees’ motion for
summary judgment. Among our determinations are the follow-
ing: that N-CORPE had the authority to exercise the power of
eminent domain, that N-CORPE did not need certain permits
and approvals as alleged by Estermann, that the district court
did not abuse its discretion when it denied Estermann’s motion
to amend the complaint, that N-CORPE is not prohibited
by common law from removing ground water from overly-
ing land, and that there is no material issue of fact regard-
ing whether the condemnation is for a public use. Therefore,
we affirm the decision of the district court which granted
the appellees’ motion for summary judgment and dismissed
Estermann’s complaint.
A ffirmed.