The Undefeatable Opponent: How the Effective Administration of Water Is an Exception to Predeprivation Hearings Ordinarily Required by Due Process in Keating v. Neb. Pub. Power District, 660 F.3d 1014 (8th Cir. 2011)

• Publication year: 2021

91 Nebraska L. Rev. 737. The Undefeatable Opponent: How the Effective Administration of Water Is an Exception to Predeprivation Hearings Ordinarily Required by Due Process in Keating v. Neb. Pub. Power District, 660 F.3d 1014 (8th Cir. 2011)

The Undefeatable Opponent: How the Effective Administration of Water Is an Exception to Predeprivation Hearings Ordinarily Required by Due Process in Keating v. Neb. Pub. Power District, 660 F.3d 1014 (8th Cir. 2011)

Note(fn*)

TABLE OF CONTENTS

I. Introduction..........................................738

II. Nebraska Water Law .................................739
A. Riparianism.......................................739
B. From Riparianism to Prior Appropriation ..........741
C. Prior Appropriation: The Doctrine of Scarcity ......742
1. Fully, Under, and Overappropriated............743
2. Priority Dates .................................744
3. Calls..........................................745
D. Closing Notices....................................745
1. Declaratory Orders ............................746
2. Contested Case Hearings (Postdeprivation Hearings).....................................746
E. Constitutional Preference ..........................747
F. Property Right in Water...........................748
1. Junior Appropriators Do Not Have a Strong Property Right ................................ 748
2. Only the Right to Use.......................... 749

III. Intro to Keating ....................................... 750
A. Procedural History ................................ 752

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1. First Appeal to the Eighth Circuit Court of Appeals.......................................752
2. Remanded to the District Court of Nebraska ...753
3. Back from the Eighth Circuit..................754

IV. The Eighth Circuit Correctly Found that a Predeprivation Hearing Was Unnecessary ............. 754
A. A Finding that a Predeprivation Hearing Is Necessary Would Be Wrong for Three Reasons..... 756
1. Not a Strong Enough Property Right........... 756
2. Strong Interest in Quick Administration of Water ......................................... 757
3. A New System Would Require Massive State Resources..................................... 758

V. Exceptions to Predeprivation Hearings................ 759
A. Boddie v. Connecticut: Countervailing State Interest of Overriding Significance .........................759
B. The Three-Part Inquiry in Mathews v. Eldridge ........................... 760
C. Little Likelihood of Serious Loss ...................762
D. Nebraska's Appropriation System is Not Violative of Due Process ....................................... 762

VI. Entitlement, Expectation, and Property Rights ........ 764

VII. Conclusion ............................................ 765

I. INTRODUCTION

"Whiskey is for drinking, water is for fighting over."(fn1) But what happens when the only opponent is the rightful owner? With closing notices in hand, Gerard Keating and his neighbors asked themselves that same question. The Nebraska Department of Natural Resources issued closing notices to Keating and many other appropriators in Holt County, Nebraska, when stream flow in the Niobrara Watershed had become insufficient to satisfy the water needs of all surrounding appropriators. Instead of taking advantage of the postdeprivation hearing offered by the Department of Natural Resources, Keating and the other appropriators filed suit, claiming that Nebraska's established water administration system violated their due process rights.(fn2)Ultimately, the Eighth Circuit Court of Appeals found no due process violation of the appropriators' rights, simply because the appropria-tors do not have a property interest in the waters of the state, which includes the Niobrara Watershed.(fn3)

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To clarify the arguments discussed in Keating, this Note first provides an overview of Nebraska water administration, followed by a discussion of the property rights vested in public waters. This Note then analyzes the impracticality of predeprivation hearings for water administration, the state's interest in quick administration of water use, and the challenge of providing sufficient due process while also preserving the water administration system.

This Note then provides an overview of Keating and related case law. Thereafter, there is a discussion of the United states supreme Court decisions which have ruled that a predeprivation hearing is necessary, and why those situations are inapplicable to the administration of water use. This discussion also describes established exceptions to the predeprivation hearing requirement and how Nebraska's appropriation system does not violate due process. Finally, this Note concludes with how Keating's and other similarly situated plaintiffs' challenges to the water administration system are a result of misplaced expectations in appropriation permits and the minimal property rights held therein.

II. NEBRASKA WATER LAW

Nebraska has a bifurcated system for the administration of its waters. The doctrines of riparianism and prior appropriation simultaneously exist in Nebraska, though they are not without conflict.(fn4) Each system provides judicial redress if the user is deprived of the specific rights she is allocated, and both systems are protected by the state. This section discusses the two separate systems, the rights protected within those systems, and how the state provides protection for such rights.

A. Riparianism

Stemming from English common law, the doctrine of riparianism grants landowners whose lands abut a body of water a right to the use of the appurtenant water.(fn5) A riparian right is "a usufruct, or a right of use, in the stream as it passes by one's land."(fn6) The common law treated land and water as one entity that could not be separated.(fn7)Riparianism is the main form of administration in states where water

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is plentiful.(fn8) In 1855, the state of Nebraska adopted the doctrine of riparianism as its system of water administration.(fn9)

Landowners believing that they have a riparian right to use the water must file a claim with the Nebraska Department of Natural Resources (Department) in order to have that right recognized, and thus gain its protection.(fn10) Landowners claiming to have a riparian right to use waters must prove that they had been using the water prior to the enactment of the Irrigation Act(fn11) for "actual and beneficial use,"(fn12) and the Director of the Department (Director) must also find the landowner's use of the surface water is riparian in nature.(fn13) The Department may also "administer any riparian water right that has been validated and recognized in a court order from a court of lawful jurisdiction in the state."(fn14)

Having a solely riparian system, however, proved troublesome to water users.(fn15) One of the problems with riparianism was access to water was uncertain. The only users guaranteed access to water were those who owned land adjacent to a water body.(fn16) Riparianism also proved to be an ineffective system for Nebraska because of the natural ebb and flow of water.(fn17) Riparian land could spontaneously be increased by a depletion of water in the stream, or decreased by a rise in stream flow.(fn18) The system in place did not effectively distribute state water resources, nor did it encourage efficient water usage.(fn19) Further, aggrieved riparians were only able to seek remedy against other riparian users through lengthy and costly court proceedings.(fn20)

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B. From Riparianism to Prior Appropriation

Due to the uncertainty of a riparian right, the need for a more structured system arose.(fn21) Nebraska looked to other semi-arid regions for guidance.(fn22) In 1877, the Nebraska Legislature passed its first irrigation law.(fn23) The Act of 1877 allowed corporations to form for the sole purpose of diverting water for irrigation and waterpower.(fn24) It also gave such organizations the right to "use eminent domain to acquire necessary rights-of-way for canal construction."(fn25) The Legislature's next major Act affecting water law came in 1889 with the Raynor Irrigation Act.(fn26) The Raynor Irrigation Act built upon the Act of 1877 by increasing previously granted powers and instituting one of the central tenants of the prior appropriation system: "first in time, first in right."(fn27) Water rights could be granted to anyone who used stream flow for a beneficial use.(fn28) The right was not riparian, i.e., natural to the land, instead the right was a permit to appropriate unused water.(fn29) Although the Department would not issue new riparian rights,(fn30) the Act protected existing rights.(fn31)

Nebraska officially adopted the doctrine of prior appropriation in 1895.(fn32) The Act of 1895 declared that the only way in which a user may obtain a water right is if the user applied for a right through the state.(fn33) Because the legislation was not retroactive, all users with an established riparian water right maintained the use of their water

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right so long as it was put to beneficial use.(fn34) The Act declared all waters not yet in use to be "unappropriated" and property of the public, and thus available for an appropriation of beneficial use.(fn35) In other words, the result of the Act of 1895 was that any riparian user maintained his or her right, but all users subsequent to 1895 could only receive an appropriation for water...