In re 2007 Appropriations of Niobrara River Waters

I n re 2007 A dmInIstrAtIon of A pproprIAtIons of the
WAters of the nIobrArA rIver .
JAck bond And Joe mcclAren rAnch , AppellAnts ,
v. nebrAskA publIc poWer dIstrIct
And depArtment of nAturAl
resources , Appellees.
768 N.W.2d 420
Filed July 17, 2009. 	No. S-08-823.
1. Administrative Law: Appeal and Error. In an appeal from the Department of
Natural Resources, an appellate court reviews the director’s factual determina-
tions to decide whether such determinations are supported by competent and
relevant evidence and are not arbitrary, capricious, or unreasonable.
2. Statutes. Statutory interpretation is a question of law.
3. Jurisdiction. Subject matter jurisdiction is a question of law.
4. Administrative Law: Appeal and Error. An appellate court decides questions
of law independently of the legal determinations made by the director of the
Department of Natural Resources.
5. Standing. Standing refers to whether a party had, at the commencement of the
litigation, a personal stake in the outcome of the litigation that would warrant
a court’s or tribunal’s exercising its jurisdiction and remedial powers on the
party’s behalf.
6. ____. Only a party that has standing may invoke the jurisdiction of a court
or tribunal.
7. Moot Question. The central question in a mootness analysis is whether changes
in circumstances that prevailed at the beginning of litigation have forestalled any
occasion for meaningful relief.
8. ____. A case becomes moot when the issues initially presented in litigation
cease to exist or the litigants lack a legally cognizable interest in the litiga-
tion’s outcome.
9. Election of Remedies. The election of remedies doctrine generally applies in two
instances: when a party seeks inconsistent remedies against another party or per-
sons in privity with the other party or when a party asserts several claims against
several parties for redress of the same injury.
10. Election of Remedies: Damages. The election of remedies doctrine prevents a
plaintiff from receiving double recovery for a single injury or compensation that
exceeds the damages sustained.
11. Administrative Law: Waters: Jurisdiction. The Department of Natural
Resources has jurisdiction over all matters concerning water rights for irriga-
tion, power, and other uses, except as such jurisdiction is specifically limited
by statute.
Appeal from the Department of Natural Resources. Reversed
and remanded for further proceedings.
IN Re 2007 AppROpRIATIONS OF NIObRARA RIveR WATeRS 	137
Cite as 278 Neb. 137
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

Donald G. blankenau and Thomas R. Wilmoth, of Husch,
blackwell & Sanders, L.L.p., for appellants.
Jon bruning, Attorney General, Justin D. Lavene, and Marcus
A. powers for appellee Department of Natural Resources.
Stephen D. Mossman, of Mattson, Ricketts, Davies, Stewart
& Calkins for appellee Nebraska public power District.
heAvIcAn, c.J., connolly, G errArd, stephAn, mccormAck ,
and mIller-lermAn, JJ.
connolly, J.
SuMMARy
In this appeal, we address the interplay of preference
rights and appropriation rights in a surface water dispute. The
Department of Natural Resources (Department) has exclusive
original jurisdiction to determine the validity of surface water
appropriations.
This appeal presents the issue whether the Department
retained jurisdiction over a junior appropriators’ challenge to
a senior appropriator’s right to surface water after the junior
appropriators obtained a condemnation award to use the water
under their constitutionally superior preference rights.
The Department determined that the condemnation award
rendered the appropriation dispute moot and that it lacked
jurisdiction for further proceedings. On appeal, however, it has
reversed its position and agrees with the junior appropriators.
It now argues that the relief requested in the administrative
hearing was distinct from the junior appropriators’ preference
rights. It requests that we remand the cause to it for further
proceedings. but the other appellee and senior appropriator,
Nebraska public power District (NppD), contends that the
Department correctly determined that the case was moot. We
hold that the case is not moot.
bACkGROuND
overvIeW of surfAce WAter rIGhts
Nebraska’s laws governing surface water management, regu-
lation, and allocation present a mosaic of private and public
138 	278 NebRASkA RepORTS

rights. This appeal centers on two of those rights: appropriation
rights and preference rights.
An appropriation right is the right to divert unappropriated
stream water for beneficial use.1 under the prior-appropriation
system, each appropriator’s right to divert unappropriated
waters from a stream for a beneficial purpose receives a
date of priority. An appropriation’s priority date is the date
when the Department approves the appropriator’s right to
divert water.
In a perfect world, there would be sufficient water to sat-
isfy all appropriations for a given stream. but when a stream
has insufficient water to satisfy all appropriation rights on
it, the appropriator first in time is first in right.2 That is, a
senior appropriator with an earlier priority date has the right
to continue diverting water against a junior appropriator with
a later appropriation date when both appropriators are using
the water for the same purpose.3 but when the appropria-
tors use the water for different purposes, a junior appropria-
tor may nonetheless have a superior preference right over
senior appropriators.
under the Nebraska Constitution and statutes, when there
is insufficient water to satisfy all appropriations, certain water
uses take preference over others, despite the appropriators’
priority dates.4 So in times of shortage, aggrieved water users
with superior preference rights may exercise their constitu-
tional preference to obtain relief when the prior-appropriation
system would otherwise deny such users access to water.5
Those using the water for domestic purposes have preference
over those claiming it for any other purpose.6 And those using
1 Neb. Rev. Stat. § 46-204 (Reissue 2004). See, also, Neb. Const. art. Xv,
§ 6.
2 Neb. Rev. Stat. § 46-203 (Reissue 2004).
3 § 46-204. See, also, State, ex rel. Cary v. Cochran, 138 Neb. 163, 292
N.W.2d 239 (1940).
4 See, Neb. Const. art. Xv, § 6; § 46-204 and Neb. Rev. Stat. § 70-668
(Reissue 2003).
5 Id.
6 Id.
IN Re 2007 AppROpRIATIONS OF NIObRARA RIveR WATeRS 	139
Cite as 278 Neb. 137

water for agricultural purposes have preference over those
using it for manufacturing and power purposes.7 And so, the
junior appropriators’ use of the diverted water for agricultural
purposes took preference over NppD’s use of the water for
power generation.8
Simply having a superior preference right, however, does not
give that appropriator unfettered use of the water. An appro-
priator having a superior preference right, but a junior appro-
priation right, can use the water to the detriment of a senior
appropriator having an inferior preference right. but the junior
appropriator must pay just compensation to the senior appro-
priator.9 So, although NppD’s appropriation right was senior to
that of the junior appropriators, the junior appropriators could
continue to divert water if they compensated NppD.10
under Nebraska’s statutes, if an irrigation district or appro-
priator with a superior preference right cannot agree with a
power generator on the compensation for use of the water, then
the appropriator can commence a condemnation proceeding
in county court to determine the compensation.11 In a condem-
nation proceeding, the county court appoints appraisers, who
then return an award.12 The compensation award cannot be
greater than the cost of replacing the power that the power
plant would have generated if it had retained use of the water.13
For the Department, whether the parties agree on the com-
pensation or the junior appropriators obtain a condemnation
award, the result is the same: the Department cannot order
the junior appropriators to cease diverting water to satisfy the
senior appropriation for the period agreed to by the parties or
contained in the condemnation award.
7 Id.
8 See id.
9 Neb. Rev. Stat. § 70-669 (Reissue 2003).
10 See id. See, also, Neb. Rev. Stat. § 76-711 (Reissue 2003).
11 Neb. Rev. Stat. § 70-672 (Reissue 2003). See, generally, Neb. Rev. Stat.
§§ 76-701 to 76-726 (Reissue 2003 & Cum. Supp. 2008).
12 § 76-706.
13 § 70-669.
140 	278 NebRASkA RepORTS

This explanation of the rights at issue and the governing
statutory schemes should provide a lens through which to view
our analysis.
A dmInIstrAtIve proceedInG
Jack bond and Joe McClaren Ranch (collectively junior
appropriators) own real property in Cherry County, Nebraska.
In 2006, the Department granted them surface water appropria-
tion rights on the Niobrara River. The rights granted each the
ability to divert certain quantities of water from the river for
agricultural use.
Near Spencer, Nebraska, downstream from the appropria-
tors’ properties, NppD owns and operates a hydropower facil-
ity on the Niobrara River. The hydropower facility has been
in operation since 1927. NppD claims to hold surface water
appropriations for the facility, the most recent of which dates
to 1942.
In the spring of 2007, NppD claimed that the Niobrara
lacked sufficient water to satisfy all appropriation rights. NppD
requested that the Department administer the river so that it
allowed NppD to use the water according to its senior appro-
priation right. On May 1, after concluding that there was
insufficient water for all appropriations, the Department issued
closing notices. The junior appropriators and about 400 other
junior water users received closing notices. The closing notices
directed them to cease water diversions for the benefit of
NppD’s hydropower facility.
The junior appropriators questioned the closing notices. So
on May 11, 2007, they filed an administrative hearing request
with the Department to determine whether the closing notices
were validly issued.14 The junior appropriators alleged that
NppD may have abandoned its appropriation rights, in whole
or in part, and if it had, then no valid appropriation right
justified the closing notices. Alternatively, the junior appro-
priators alleged that even if NppD had a valid appropriation
right, any call for water would be futile because it would not
result in additional water reaching NppD’s facility. The junior
14 Neb. Rev. Stat. § 61-206(1) (Cum. Supp. 2006).
IN Re 2007 AppROpRIATIONS OF NIObRARA RIveR WATeRS 	141
Cite as 278 Neb. 137

appropriators also requested the Department to stay any future
closing notices until it issued a final order regarding the valid-
ity of NppD’s appropriation right.
Initially, the Department lifted the May 1, 2007, closing
notices. This allowed the junior appropriators to continue
diverting water from the river. but on August 1, while the
hearing was still pending, the Department issued new clos-
ing notices to the junior appropriators. In response, in case
No. A-07-858, one junior appropriator appealed the issuance
of the new closing notices to the Nebraska Court of Appeals.
He argued that the Department, by issuing new closing notices,
implicitly denied their request for a stay of any future closing
notices pending a decision on NppD’s appropriation right. On
October 10, the Court of Appeals sustained both NppD’s and
the Department’s summary dismissal motions and dismissed
the appeal for lack of a final order.
JunIor A pproprIAtors exercIse preference rIGhts
In condemnAtIon proceedInG
Meanwhile, on August 17, 2007, the junior appropriators
filed a petition for condemnation of NppD’s water rights in the
boyd County Court. In their petition, the junior appropriators
stated that they still disputed the validity of NppD’s appro-
priation right but “[b]ecause resolution of this issue may take
several irrigation seasons,” they elected to also exercise their
preference rights. They also explicitly stated that they did not
waive or concede any claims, allegations, or positions regard-
ing the Department’s administrative proceeding. The county
court appointed appraisers who established a compensation
award for NppD for 20 years. NppD is currently appealing
that award.
After the appraisers returned an award and the Court of
Appeals dismissed the first appeal, the Department asked its
director to dismiss the junior appropriators’ administrative
proceeding. It argued that because the junior appropriators
exercised their constitutional preference rights, they were not
subject to any closing notices for 20 years. because the junior
appropriators were not subject to a closing notice to satisfy
NppD’s appropriations for 20 years, the Department argued
142 	278 NebRASkA RepORTS

that they lacked standing in the administrative proceeding.
NppD also filed a motion to dismiss. It claimed that the junior
appropriators’ condemnation proceeding had mooted the appro-
priation controversy.
the dIrector’s order
The director concluded that the junior appropriators’ con-
demnation award divested the Department of jurisdiction over
the administrative proceeding. He determined that the junior
appropriators lacked standing. He determined that because of
the condemnation award, the junior appropriators could not
be subject to closing notices in favor of NppD for the next
20 years. He concluded that they had no legally protectable
interest or right in the controversy that would benefit from
their requested relief. He rejected their argument that they had
standing because their junior appropriation status devalued
their property. He reasoned that because the parties’ appro-
priation status could change in 20 years, this argument raised
only a hypothetical question. because there was “no active
controversy remaining in the case,” the director concluded that
the Department lacked subject matter jurisdiction for further
proceedings. The junior appropriators appeal.
ASSIGNMeNT OF eRROR
The junior appropriators alleged that the director erred in
concluding the Department lacked subject matter jurisdiction
and dismissing the case.
STANDARD OF RevIeW
[1-4] In an appeal from the Department, we review the
director’s factual determinations to decide whether such deter-
minations are supported by competent and relevant evidence
and are not arbitrary, capricious, or unreasonable.15 Statutory
interpretation, however, is a question of law.16 Subject matter
15 See In re Applications T-851 & T-852, 268 Neb. 620, 686 N.W.2d 360
(2004).
16 Evertson v. City of Kimball, ante p. 1, 767 N.W.2d 751 (2009).
IN Re 2007 AppROpRIATIONS OF NIObRARA RIveR WATeRS 	143
Cite as 278 Neb. 137

jurisdiction also is a question of law.17 We decide questions
of law independently of the legal determinations made by
the director.18
ANALySIS
pArtIes’ contentIons
The appropriators contend that the director erred in deter-
mining that they did not retain standing in the appropriation
dispute. They argue that they have a continuing interest in
obtaining a determination that the closing notices were illegally
issued. They point out that if NppD’s appropriation rights have
been abandoned or forfeited, then they have no obligation to
compensate NppD. They also argue their property value is less-
ened without a final determination because a prospective buyer
knows that the property’s irrigation rights are time restricted
to 20 years. Finally, they argue that a favorable determination
in the administrative proceeding would moot their preference
rights case and their money would be returned.
Initially, the Department determined that when the junior
appropriators obtained the condemnation award, that action
divested the Department of jurisdiction because there was
no 	remaining 	active 	case 	or 	controversy. 	On 	appeal, 	the
Department has changed course. It now agrees with the junior
appropriators that it has jurisdiction. NppD disagrees. It claims
that by obtaining a condemnation award, the junior appropria-
tors mooted the administrative proceeding.
the I ssue I s mootness , not stAndInG
We first clarify the framework under which we decide this
appeal. In his order, the director made statements showing that
he dismissed the administrative proceeding for lack of subject
matter jurisdiction. He determined that the junior appropria-
tors no longer had standing because the condemnation award
mooted the appropriation dispute. but the director’s reasoning
blurs the distinction between standing and mootness.
17 See Gilbert & Martha Hitchcock Found. v. Kountze, 275 Neb. 978, 751
N.W.2d 129 (2008).
18 See In re Applications T-851 & T-852, supra note 15.
144 	278 NebRASkA RepORTS

[5,6] Standing refers to whether a party had, at the com-
mencement of the litigation, a personal stake in the outcome
of the litigation that would warrant a court’s or tribunal’s
exercising its jurisdiction and remedial powers on the party’s
behalf.19 It is true that a litigant must have a personal interest
in the controversy both at the commencement of the litigation
and throughout its existence.20 but standing is a component
of jurisdiction; only a party that has standing may invoke the
jurisdiction of a court or tribunal.21 And the junior appropria-
tors did not lose standing if they possessed it under the facts
existing when they commenced the litigation.22
[7] Mootness differs from standing. Mootness refers to
events occurring after the filing of suit which eradicate the
requisite personal interest in the resolution of the dispute that
existed at the beginning of the litigation.23 Although a moot
case is subject to summary dismissal,24 it does not necessar-
ily prevent a court from exercising jurisdiction.25 but if an
exception does not apply, a court must dismiss a case when the
issues are no longer alive because the litigants lack a personal
interest in their resolution. Dismissal is required because the
court or tribunal can no longer give any meaningful relief.26
The central question in a mootness analysis is whether changes
in circumstances that prevailed at the beginning of litigation
19 See Myers v. Nebraska Invest. Council, 272 Neb. 669, 724 N.W.2d 776
(2006).
20 Id.
21 See, Ottaco Acceptance, Inc. v. Larkin, 273 Neb. 765, 733 N.W.2d 539
(2007); Myers, supra note 19.
22 See Myers, supra note 19.
23 See, e.g., Ridderbush v. Naze, No. 94-1861, 1995 WL 496754 (7th Cir.
Aug. 17, 1995) (unpublished disposition listed in table of “Decisions
Without published Opinions” at 64 F.3d 665 (7th Cir. 1995)).
24 BryanLGH v. Nebraska Dept. of Health & Human Servs., 276 Neb. 596,
755 N.W.2d 807 (2008).
25 See Evertson, supra note 16.
26 See, e.g., DiMaio v. Democratic Nat. Committee, 555 F.3d 1343 (11th Cir.
2009). Compare Smith v. Colorado Organ Recovery Sys., 269 Neb. 578,
694 N.W.2d 610 (2005).
IN Re 2007 AppROpRIATIONS OF NIObRARA RIveR WATeRS 	145
Cite as 278 Neb. 137

have forestalled any occasion for meaningful relief.27 A case is
not moot unless a court cannot fashion some meaningful form
of relief, even if that relief only partially redresses the prevail-
ing party’s grievances.28 A court assesses a plaintiff’s personal
interest under the framework of standing at the commencement
of the litigation and under mootness thereafter.29
Here, obviously, the Department has original, exclusive juris-
diction to decide disputes over surface water appropriations.30
And NppD does not argue that the junior appropriators lacked
standing when they filed their petition requesting a hearing
regarding the validity of NppD’s senior appropriation. Thus,
we analyze the issue whether the case was moot.
cAse WAs not moot
[8] A case becomes moot when the issues initially pre-
sented in litigation cease to exist or the litigants lack a legally
cognizable interest in the litigation’s outcome.31 Here, the
junior appropriators challenged the validity of NppD’s senior
appropriation. The junior appropriators’ condemnation award
provides them a 20-year superior preference over NppD.
but, currently, they must compensate NppD for the water
they divert from the river. So, a determination that NppD had
abandoned or forfeited its appropriations would immediately
benefit the junior appropriators. And as the Department now
acknowledges, we have recognized the priority of an appro-
priation as an important property right. Minimally, a senior
appropriation entitles the permit holder to compensation from
27 See, e.g., American Bird Conservancy v. Kempthorne, 559 F.3d 184 (3d
Cir. 2009); Southern California Painters & Allied v. Rodin, 558 F.3d 1028
(9th Cir. 2009); City of Sequim v. Malkasian, 157 Wash. 2d 251, 138 p.3d
943 (2006).
28 Church of Scientology of Cal. v. United States, 506 u.S. 9, 113 S. Ct. 447,
121 L. ed. 2d 313 (1992); In re Continental Airlines, 91 F.3d 553 (3d Cir.
1996).
29 See Myers, supra note 19.
30 § 61-206(1).
31 See In re Interest of Taylor W., 276 Neb. 679, 757 N.W.2d 1 (2008).
146 	278 NebRASkA RepORTS

a superior-use appropriator.32 These facts alone show that
the junior appropriators have a legally cognizable interest
in the outcome of the administrative proceeding before the
Department. Thus, events occurring after the hearing request
did not preclude the director from fashioning meaningful
relief. The case is not moot.
electIon of remedIes doctrIne does not A pply
[9,10] Finally, we reject NppD’s argument that the election
of remedies doctrine barred the junior appropriators’ requested
relief in the administrative proceeding. That doctrine gener-
ally applies in two instances: when a party seeks inconsistent
remedies against another party or persons in privity with the
other party or when a party asserts several claims against sev-
eral parties for redress of the same injury.33 The doctrine pre-
vents a plaintiff from receiving double recovery for a single
injury or compensation that exceeds the damages sustained.34
but that reasoning does not apply here. First, NppD does
not inform us how a favorable decision in the administrative
proceeding would result in a double recovery for the junior
appropriators. More important, the junior appropriators were
not seeking inconsistent remedies. They were enforcing sepa-
rate rights.
[11] The Legislature has given the Department jurisdiction
over all matters concerning water rights for irrigation, power,
and other uses, “except as such jurisdiction is specifically lim-
ited by statute.”35 Section 70-672 presents a limitation. It states
that any person seeking to acquire water being used for power
shall use the procedure to condemn property as set forth in
chapter 76, article 7, of the Nebraska Revised Statutes. Thus,
condemnation proceedings are the only way a junior appropria-
tor with a superior preference right may enforce that right; the
32 Loup River P. P. D. v. North Loup River P. P. & I. D., 142 Neb. 141, 5
N.W.2d 240 (1942); Vonburg v. Farmers Irrigation District, 132 Neb. 12,
270 N.W. 835 (1937).
33 See Genetti v. Caterpillar, Inc., 261 Neb. 98, 621 N.W.2d 529 (2001).
34 See id.
35 § 61-206(1).
IN Re 2007 AppROpRIATIONS OF NIObRARA RIveR WATeRS 	147
Cite as 278 Neb. 137

Department has no authority to condemn water or force par-
ties to accept a subordination agreement.36 but nothing in the
condemnation procedures precludes junior appropriators with a
superior agricultural preference right from also challenging the
validity of senior appropriation right. Similarly, nothing in the
appropriation procedures precludes junior appropriators from
seeking a condemnation of the senior appropriation.37
In short, neither of these statutory procedures is exclusive or
inconsistent. They provide separate means of enforcing separate
water rights. A condemnation proceeding is the Legislature’s
means of protecting an appropriator’s constitutionally superior
preference for water use when relief under the appropriation
procedures is not available.
As 	this 	case 	illustrates, 	the 	protection 	has 	gaps. 	The
Department’s issuance of the closing notices to the junior
appropriators despite their preference right leaves the junior
appropriators with limited options that will ensure them con-
tinued access to water: junior appropriators can either initiate
condemnation proceedings and assert their superior preference
right or challenge the validity of the senior appropriation right.
yet, to hold that junior appropriators must choose between
these procedures would force them into the precarious position
of relinquishing their preference rights to challenge the valid-
ity of a senior appropriation with an inferior preference status.
This interpretation of the statutes would be inconsistent with
preference rights under the Nebraska Constitution. We con-
clude the argument is without merit.
CONCLuSION
We conclude that the junior appropriators’ administrative
proceeding was not moot. The Department’s director therefore
erred in dismissing their hearing request. We remand the cause
to the director for further proceedings.
reversed And remAnded for
further proceedInGs.
WrIGht, J., participating on briefs.
36 See, generally, Hickman v. Loup River Public Power Dist., 173 Neb. 428,
113 N.W.2d 617 (1962).
37 See § 61-206(1).
148 	278 NebRASkA RepORTS