Frenchman Cambridge Irrigation District v. Heineman

974 F. Supp. 2d 1264, 2013 WL 5367353, 2013 U.S. Dist. LEXIS 136733
CourtDistrict Court, D. Nebraska
DecidedSeptember 24, 2013
DocketNo. 8:12CV445
StatusPublished
Cited by5 cases

This text of 974 F. Supp. 2d 1264 (Frenchman Cambridge Irrigation District v. Heineman) is published on Counsel Stack Legal Research, covering District Court, D. Nebraska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frenchman Cambridge Irrigation District v. Heineman, 974 F. Supp. 2d 1264, 2013 WL 5367353, 2013 U.S. Dist. LEXIS 136733 (D. Neb. 2013).

Opinion

MEMORANDUM AND ORDER

JOSEPH F. BATAILLON, District Judge.

This matter is before the court on motions to dismiss filed by defendants NCORPE and Upper Republican Natural Resources District (hereinafter, “the DNR Defendants”),1 Filing No. 40; defendants Brian Dunnigan and Dave Heineman (hereinafter, “the State Defendants”),2 Filing No. 42; and defendants Michael Con-nor, Michael Ryan, Kenneth Salazar, the United States Department of Interior, and the United States of America (hereinafter, “the Federal Defendants”),3 Filing No. 45.

This is an action for injunctive and declaratory relief involving a challenge to the DNR Defendants’ and State Defendants’ alleged plan to pump groundwater to surface water streams in order to remedy an alleged overuse of Nebraska’s allocation of water under an Interstate Compact. The plaintiffs are two political subdivisions organized under Nebraska law to deliver natural flow irrigation water and three farmers, landowners, and water-user patrons of those political subdivisions (hereinafter, collectively, “the Irrigation Districts”). They base jurisdiction on 28 U.S.C. §§ 1331 (federal question jurisdiction), 1346(f) (jurisdiction over quiet title claims against the United States), 1361 (mandamus jurisdiction), 1367a (supplemental jurisdiction), and 43 U.S.C. §§ 390uu (waiver of sovereign immunity for joinder of United States in any suit on a contract executed pursuant to Federal Reclamation Law) & 666(a) (consent to join United States as a defendant in suits for adjudication of water rights). The plaintiffs seek a determination of rights to the waters of the Republican River Basin and the Platte Basin within Nebraska, an order compelling the Federal Defendants to protect FCID water rights and an injunction compelling all State and Federal Defendants to respect, and refrain from interfering with, those water rights. The plaintiffs do not seek damages as a remedy-

The Federal Defendants move to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). They assert the United States has not waived its sovereign immunity. They also argue that the plaintiffs’ complaint fails to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6).

The DNR Defendants move to dismiss for lack of subject matter jurisdiction un[1271]*1271der Fed.R.Civ.P. 12(b)(1) and for failure to state a claim under Fed.R.Civ.P. 12(b)(6). They base their Fed.R.Civ.P. 12(b)(1) challenge on Eleventh Amendment immunity. They argue that they work jointly with the State of Nebraska to comply with the Republican River Compact (“RRC”) and act as an “arm of the State” for Eleventh Amendment immunity purposes.4 They also argue that there is no foundation for the exercise of supplemental jurisdiction over the plaintiffs’ state law claims because the plaintiffs’ federal claims are infirm and contend the court should decline discretionary jurisdiction over the state law claims. Also, they contend the plaintiffs lack standing to pursue the claims.

The State Defendants similarly move to dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). They too argue that the plaintiffs’ claims are barred by the Eleventh Amendment and assert that the State has not waived, and Congress has not abrogated, the State’s sovereign immunity. They further argue that the doctrine of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), is inapplicable because the plaintiffs have not alleged any violation of federal law. They also contend that the court should decline to exercise supplemental jurisdiction over the plaintiffs’ state law claims, and alternatively argue that the plaintiffs’ claims are subject to dismissal under state law.

I. THE COMPLAINT

In their 63-page Complaint, the plaintiffs allege that the defendants have caused or permitted, and threaten to further cause and permit, groundwater of the Republican River Basin and the Platte Basin, to be pumped from the aquifer, and dumped into open streams to augment streamflow of the Republican River’s mainstem for the purpose of delivering sufficient water to the State of Kansas in order to comply with the Republican River Compact, the Republican River Accounting Rules, and a modified Final Settlement Stipulation settling a suit between Kansas and Nebraska.5 Filing No. 1, Complaint at 3. In general, the Irrigation Districts allege that the State of Nebraska receives a certain allocation of the water of the Republican River Basin under the agreement ultimately reached in the Supreme Court litigation. Id. at 21. Under the Final Settlement Stipulation, the states adopted the Republican River Compact Administration Groundwater Model, under which the compact allocates a specific number of acre-feet to each state on a basin-by-basin basis. See Complaint at 17. In the Kansas v. Nebraska litigation, a special master found that:

[although the compact never uses the word ‘groundwater,’ stream flow which the compact fully allocates, comes from both surface runoff and groundwater discharge. Interception of either of [1272]*1272these streamflow sources can cause a state to receive more than its compact allocation and violate the compact. Thus the comprehensive definition of virgin water supply, even without use of the express term “groundwater” requires a conclusion that, as a matter of law, a state can violate the compact through excessive pumping of groundwater hydraulically connected to the Republican River and its tributaries.

Filing No. 1, Complaint at 21; see State of Kansas v. State of Nebraska, No 126, Orig., Final Report of the Special Master with Certificate of Adoption of RRCA Groundwater Model, 2003 WL 25904134 (September 17, 2003), available at www. supremecourt.gov/SpereMastRpt/Spec MastRpt.aspx (last visited September 18, 2013).

The Irrigation Districts assert the State Defendants threaten to disrupt and diminish inflows from naturally occurring groundwater accretions to streams, and from streams to federal reservoirs and lakes in Nebraska, and thereby reduce, disrupt, and intermittently eliminate the availability of surface waters to flow into the irrigation canals and ditches of the Irrigation Districts, which hold prior and superior water use rights and superior natural flowage easements that predate applicable water regulations. See Filing No. 1, Complaint at 3.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
974 F. Supp. 2d 1264, 2013 WL 5367353, 2013 U.S. Dist. LEXIS 136733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frenchman-cambridge-irrigation-district-v-heineman-ned-2013.