• Jennifer Heywood

Eighth Circuit Rejects Niobrara River Civil Rights Claims

In early 2007, the Nebraska Public Power District (“NPPD”) placed a call for water administration on the Niobrara River for appropriations, it claims, for a small hydro-dam with the Nebraska Department of Natural Resources (“NDNR”). Although NPPD claims to hold appropriations for virtually the entire flow of the Niobrara River since 1942, it never before placed a call for administration. NDNR honored NPPD’s call and abruptly issued closing notices to over 400 appropriations at the beginning of irrigation season. The unexpected closing notices spawned a series of law suits by irrigators challenging NDNR’s new administration. Among those suits was Gerard Keating et al. v. NPPD et al., brought in the United States Federal District Court in Omaha. Keating alleged that the closing notices constituted a taking of a property right (the water right) without due process of law under 42 U.S.C. § 1983. The District Court explained that under Nebraska’s prior appropriation doctrine, the issuance of closing notices is based solely on the date an appropriation is obtained. The District Court noted that because NPPD’s appropriations were older than those of the irrigators, the closing notices were issued in accordance with state law and dismissed the claims. The Plaintiffs, represented by a Minnesota law firm, appealed the dismissal to the 8th Circuit Court of Appeals. On November 7, 2011, the 8th Circuit issued its opinion affirming the dismissal by the District Court, essentially agreeing with the District Court’s analysis.

Keating stands in contrast to In re 2007 Administration of Waters of Niobrara River, which was argued to the Nebraska Supreme Court by BW lawyer, Tom Wilmoth on November 4, 2011. In that case, the irrigator Plaintiffs argued that NPPD’s appropriations were not valid due to 65 years of non-use. The Plaintiffs also argued that even if NPPD’s appropriations are valid, NDNR erred in issuing the closing notices because it (NDNR) failed to consider key factors in water administration. Whether NPPD’s appropriations were valid and whether NDNR acted properly was not an issue before the 8th Circuit in Keating. No decision is expected from the Nebraska Supreme Court until the spring of 2012.

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