Opinion No. (1981)

REQUESTED BY: J Michael Jess, Director, Department of Water Resources, Lincoln, Nebraska Whether the Director must charge a separate and additional fee of $10.00 for each pleading filed after the initial application to divert water from a river in this state under the appropriate right system prior to and in conjunction with a hearing on that application?

No additional or separate fee of $10.00 is required to be charged by the Director of Water Resources for the filing of papers pertaining to a hearing upon an application to divert water from a river of this state.

Neb.Rev.Stat. § 33-105 (Supp. 1980) provides in part:

There shall be paid to the Department of Water Resources in advance for the services of the Director of Water Resources by the party demanding or necessitating the service the following fees: . . . for filing any petition, affidavit, or other paper, ten dollars; . . .

Other charges are made for the filing of applications of various sorts, for the making of blueprints, fees for documents, and for other services of the Department.

Pursuant to Neb.Rev.Stat. § 46-209 (Reissue 1978) the Department of Water Resources is given jurisdiction over matters pertaining to water rights and shall hold public hearings on petitions and other applications in conjunction with these rights. It is required to adopt rules and regulations governing the matters coming before it, and has done so. Such rules provide the procedure in conducting these hearings. Evidence will normally be as in civil proceedings. Motions and objections may be made and ruled on by the Director. (Rule 12 of the Rules of the Department of Water Resources.) Parties may submit and file briefs according to Rule 11 of the Rules of Procedure of the Department of Water Resources. Depositions may be taken and filed according to Rule 10 of the Rules of Procedure of the Department of Water Resources. These rules generally permit the filing of many documents and papers in conjunction with a hearing upon an application or in a contested case. In all cases, the initial application initiating the Director's jurisdiction has been accompanied by the payment of the appropriate fee.

It is evident that the requirement for the payment of additional fees for the filing of each paper, motion, affidavit, brief, or other documents would have a chilling effect upon the exercise of the rights of parties to a hearing before the Director. This effect would be accompanied by no legitimate purpose to be served by the charging for such fee. The conduct of a hearing is analogous to the conduct of a proceeding in the district courts of the State of Nebraska inasmuch as the order of the Director in such matters is appealable directly to the Supreme Court of Nebraska. No district court is permitted to charge fees for routine filings after initial filing fees for the petition in a judicial action. To read such a requirement into Neb.Rev.Stat. § 33-105 (Supp. 1980) is unjustified and not required by a reading of the act.

It is our conclusion that once the filing fees are paid pursuant to Neb.Rev.Stat. § 33-105 (Supp. 1980) initiating the jurisdiction of the Director of the Department of Water Resources, additional fees for the filings by the applicant or objectors in conjunction with a hearing or determination to be made by the Director do not require the payment of the $10.00 filing fee. Such requirement contained in Neb.Rev.Stat. § 33-105 (Supp. 1980) is designed only for those papers unassociated with applications for which a filing fee has already been paid.

Very truly yours, PAUL L. DOUGLAS Attorney General G. Roderic Anderson Assistant Attorney General APPROVED:Paul L. Douglas Attorney General