Nebraska Supreme Court Dismisses Irrigation District Appeal
On July 29, 2011, the Nebraska Supreme Court dismissed an appeal by the Frenchman-Cambridge Irrigation District (“FCID”) from an order of the Nebraska Department of Natural Resources (“DNR”) for lack of standing. Frenchman-Cambridge Irrigation District v. Department of Natural Resources, 281 Neb. 992 (2011). The case arose when FCID brought an administrative action before the DNR to reevaluate portions of the Republican River Basin to determine whether those portions should be declared overappropriated rather than fully appropriated. FCID argued that Neb. Rev. Stat. § 46-713(4)(a) allows DNR to declare a river basin to be overappropriated if that basin was subject to an “interstate cooperative agreement” as of July 16, 2004. FCID further argued that the Republican River Compact was an interstate cooperative agreement within the meaning of the statute. At the time this issue was before the DNR, DNR and FCID stipulated that the District was an “interested party” entitled to raise its claims. After the agency matter concluded, but before the Supreme Court held argument, the Court decided Central Nebraska Public Power District v. North Platte NRD, 280 Neb. 533, 788 N.W.2d 252 (2010) (“Central”). At argument, DNR explained that the Central decision made clear that a party must properly plead facts sufficient to establish standing and that parties could not simply stipulate to this threshold jurisdictional standard. The Supreme Court agreed stating: “The requirement of standing is fundamental to a court’s exercising jurisdiction, and litigants cannot confer subject matter jurisdiction on a judicial tribunal by either acquiescence or consent.” Supra at 1001. The Court’s decision should alleviate the concerns raised by irrigation district representatives following the Central decision. Contrary to those representatives, irrigation districts are not prohibited from raising such claims but rather must allege proper facts to demonstrate standing, just like any other party.