Opinion No. (1980)

REQUESTED BY: Dear Senator Wagner:

You have requested our opinion regarding whether or not the waters of the Missouri River are included within the terms of section 46-202, R.R.S. Neb. 1943, as it presently appears in our statutes.

Section 46-202 provides:

"The water of every natural stream not heretofore appropriated within the State of Nebraska is hereby declared to be the property of the public and is dedicated to the use of the people of this state, subject to appropriation as herein provided."

In your request, you indicate that your uncertainty regarding this matter arises from the fact that section 46-202 refers to water ``within' the state. Inasmuch as the Missouri River waters are along the border of our state, you wonder whether those waters are comprehended by the statutory terms, and therefore a part of our state's appropriation system.

The question you raise has never been addressed by the Nebraska Supreme Court. Accordingly, and until such time as that occasion arises, we are unable to answer your question with absolute certainty. We are of the opinion, however, that the language of section 46-202 could reasonably be interpreted to comprehend the waters of the Missouri River.

Our opinion is based upon the enabling Act of Congress passed April 19, 1864, which provides in pertinent part in section 2 that: ``. . . the said state of Nebraska shall consist of all territory included within the following boundaries, to wit: . . . Thence down the middle of the channel of the said Missouri River, and following the meanderings thereof, to the place of beginning.' Hence, because the eastern boundary of Nebraska is located ``down the middle of the channel' of the Missouri River, its water should be deemed to be ``within' the State, therefore within the terms of section 46-202, and correspondingly, a part of our state's appropriative system.

That interpretation appears to be in harmony with other statutory and constitutional provisions relating to water use in this State, particularly Article XV, section 6, of our Constitution which declares, in part that:

". . . The right to divert unappropriated waters of every natural stream for beneficial use shall never be denied except when such denial is demanded by the public interest. . . ."

In closing, we wish to emphasize that while we are of the opinion that the waters of the Missouri River are presently included by the language of section 46-202, we do not wish to imply that such an interpretation will, in fact, be given the language of section 46-202. The precise meaning of the statute awaits further clarification by the Legislature and/or interpretation by our highest court. Accordingly, and in that connection, inclusion of ``or border' after the word within; or ``including the Missouri River' immediately following ``the State of Nebraska' as you have suggested would certainly aid in clarifying the statute. Either of those suggested changes would unquestionably serve the purpose of meeting any objections or challenges which might otherwise be made to the notion that the waters of the Missouri River are subject to appropriation pursuant to section46-202.

We hope the foregoing has been of some assistance to you. If you have further questions, please don't hesitate to ask. We remain available to assist you.