Fisher v. Lower Platte North Natural Resources District

322 N.W.2d 403, 212 Neb. 196, 1982 Neb. LEXIS 1182
CourtNebraska Supreme Court
DecidedJuly 16, 1982
DocketNos. 81-710, 81-711
StatusPublished

This text of 322 N.W.2d 403 (Fisher v. Lower Platte North Natural Resources District) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fisher v. Lower Platte North Natural Resources District, 322 N.W.2d 403, 212 Neb. 196, 1982 Neb. LEXIS 1182 (Neb. 1982).

Opinion

McCown, J.

This appeal involves two cases which were consolidated for trial in the District Court, both of which are appeals from an order of the Lower Platte North Natural Resources District dated March 6, 1980, which denied a petition of William Fisher, Jr., and 15 other landowners of the district to create a flood control project as a special assessment improvement project. See Neb. Rev. Stat. § 2-3255 (Reissue 1977). The denial was based on the ground that the same flood control project requested by the Fisher petition had already been approved and adopted by the district as a general benefit project and was in the process of implementation. The District Court entered summary judgment for the plaintiffs in both cases and the district has appealed.

The district is a natural resources district organized and existing under the laws of Nebraska. The flood control project involved is generally known as the Rawhide project and is located in the Rawhide Creek watershed in Dodge County, Nebraska, north and west of the city of Fremont.

The district conducted preliminary studies on the flood control project in 1973 and 1974. After notice to landowners, the district applied to the Nebraska Natural Resources Commission for funding for the project. After hearing before the commission, at which both proponents and objectors appeared, the project was approved by the commission and the application of the district was granted on June 7, 1978. The formal agreement between the commission and the district was signed and became effective on October 10, 1978. The current funding agreement recites that the Natural Resources Commission has determined that the costs were eligible for state current funding under the appropriate statutes as a general benefit flood control project. The board of directors of the district proceeded to discuss implementation of the project at various meetings there[198]*198after, and various landowners and their counsel appeared at the meetings and were given an opportunity to state and express their objections. The board of directors of the district proceeded with the implementation of the project.

In August 1979 William Fisher, Jr., and 15 other landowners filed a petition with the district pursuant to Neb. Rev. Stat. §§ 2-3252 et seq. (Reissue 1977) to grant a special assessment improvement project area. The project requested by the petition was the identical flood control project already being implemented as a general benefit project of the district. The Fisher petition asserted that the project was in compliance with the goals of the state water plan but requested that it be funded by a special assessment to the landowners within the project area. Trouble Creek/Rawhide Watersheds, Inc., an organization of landowners opposed to the flood control project, filed an objection to the Fisher petition.

The district held hearings on the Fisher petition on September 28, 1979, November 27, 1979, and January 10, 1980, and notice was published of the estimated assessment to landowners. The landowners who had filed the Fisher petition produced no evidence in support of their petition and, at the first hearing on September 28, 1979, advised the board of directors that they would not offer proof in support of their petition and that they joined the objectors to the petition. Some persons appeared at the hearings in favor of the project on a general benefit basis and some objecting landowners, including Trouble Creek/Rawhide Watersheds, Inc., presented objections to the entire flood control project, including challenging the legality of the approval and implementation of the general benefit project.

On March 6, 1980, the district found that the special benefit project requested in the Fisher petition was physically the same project which the district had in process, which project had been approved [199]*199and adopted by the district as a general benefit project which had the approval of the Nebraska Natural Resources Commission and other state agencies, and also had approval of appropriate federal agencies. The district also found that the general benefit project conformed with the goals, criteria, and policies of the state water plan and the requirements of the statutes of Nebraska. The district then denied the establishment of the improvement project area requested by the petitioners.

The Fisher landowners appealed from the order of March 6, 1980. Trouble Creek/Rawhide Watersheds, Inc., also appealed, challenging the overruling of certain motions based on its allegations of illegality in the creation of the general benefit project by the district. The cases were consolidated in the District Court for trial and have remained consolidated in this appeal.

The District Court, after hearing on motions for summary judgment filed by the landowner groups and the submission of evidence, affidavits, and written briefs, found that the Rawhide flood control project is a general benefit project created by the defendant, Lower Platte North Natural Resources District, within its boundaries under authority and by procedure of the natural resources act. The court also found that the improvement project area proposed by the landowners was a special benefit project upon procedures authorized by the natural resources act, and that neither the Nebraska Natural Resources Commission nor the Lower Platte North Natural Resources District had adopted rules and regulations establishing minimum feasibility standards or minimum due process standards of notice and hearing for the creation of general benefit projects and/or special benefit projects.

The District Court determined that the creation of the general benefit project and denial of the creation of the special benefit project were upon unlawful procedure in violation of the petitioners’ constitu[200]*200tional rights of due process, and entered judgment that the orders creating the general benefit project and denying the creation of the special benefit project be set aside and vacated, and that the matters be remanded to the district for further consideration consistent with the judgment of the District Court.

The district contends that its action in establishing and implementing the general benefit flood control project was an exercise of legislative power and authority. It argues that judicial notice and hearing and the establishment of minimum feasibility standards were not required for the establishment or implementation of the general benefit project. The district also contends that the District Court had no jurisdiction because a general benefit flood control project cannot be collaterally attacked by attempting to establish a special assessment improvement project area for carrying out the same project.

Neb. Rev. Stat. § 2-3229 (Reissue 1977) sets out the many purposes of natural resources districts, one of which is to develop and execute plans, facilities, works, and programs relating to flood prevention and control through the exercise of the powers and authority contained in the natural resources act. Under that section plans and programs are to be in conformance with the goals, criteria, and policies of the state water plan as developed by the Nebraska Natural Resources Commission.

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Cite This Page — Counsel Stack

Bluebook (online)
322 N.W.2d 403, 212 Neb. 196, 1982 Neb. LEXIS 1182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fisher-v-lower-platte-north-natural-resources-district-neb-1982.