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<br />GU085J <br /> <br />Perhaps the court in Prather was merely adding <br />statutory preferences to the list of factors that <br />should be considered in determining when one <br />user causes unreasonable harm to another user, <br />A contrary construction of the court's actions <br />would give preferred groundwater users a <br />property right that, depending upon the <br />economic value of alternative uses, could <br />effectively preclude any groundwater use by less <br />preferred users irrespective of the amount of <br />water in storage, <br /> <br />6. State ex rei. Douglas v. Sporhase25 <br />(1981 ) <br /> <br />Sporhase is the most recent pronouncement of <br />the Nebraska Supreme Court concerning <br />groundwater property rights, In that case the <br />court upheld a Nebraska statute that forbids <br />transporting groundwater across state lines <br />without a permit.26 While the state supreme <br />court opinion was later reversed by the United <br />States Supreme Court because a portion of the <br />Nebraska statute was found to create an undue <br />burden on interstate commerce, the state court <br />opinion continues to have extremely significant <br />implications for the definition of groundwater <br />property rights and on the power of the legis- <br />lature to regulate exercise of those rights, <br />The Nebraska Supreme Court began its <br />opinion with a review of the Olson rule focusing <br />on the language authorizing sharing in times of <br />shortage, "The Olson court's inclusion of that <br />concept demonstrates its view that water is a <br />unique commodity subject to state regulation to <br />assure that it is available to everyone in the state <br />in relation to their need, ratherthan their ability to <br />pay for it."27 In discussing the subsequent <br />Metropolitan Utilities case, the court stated, "The <br />opinion clearly held that the legisiature has the <br />power to determine public policy with regard to <br />groundwater and that it may be transferred from <br />the overlying land only with the consent of and to <br />the extent prescribed by the public through its <br />elected representatives."2s <br />Finally, in sweeping language, the Nebraska <br />Supreme Court declared that groundwater is <br />publicly owned, and went on to state: <br />The public, through legislative action, may <br />grant to private persons the right to the use <br />of publicly owned waters for private <br />purpose; but as the Olson opinion demon- <br />strates, with its emphasis on sharing in <br />times of shortage, the public may limit or <br />deny the right of private parties to freely use <br />the water when it determines that the <br />welfare of the state and its citizens is at <br />stake,29 <br />The court went on to stress that ground water use <br />is not an unlimited private property right in <br /> <br />Nebraska but rather a narrowly circumscribed <br />right of reasonable use only on overlying land. <br />Furthermore, the public apparently retains <br />ownership of the water even after private capture <br />since the court notes ..that conditioning a land. <br />owner's right to transfer groundwater either <br />within or without Nebraska does not deprive him <br />of a property right, since, under Nebraska <br />common law, groundwater may not be trans' <br />ferred off the overlying Nebraska land at all <br />unless the public, owners of the water, grant that <br />right."30 <br />As noted earlier, the Nebraska Supreme Court <br />decision upholding the constitutionality of the <br />statute governing exportation of groundwater <br />was appealed to the United States Supreme <br />Court where it was reversed. In arriving at its <br />decision, the U,S, Supreme Court addressed the <br />state supreme court's claim that groundwater in <br />Nebraska was publicly owned. The U,S, Court <br />dismissed such a claim as a means to avoid <br />scrutiny under the Commerce clause of the <br />United States Constitution and found that a <br />reciprocity clause in the anti-exportation statute <br />did unduly burden interstate commerce, How- <br />ever, the Court did not strike down the declar- <br />ation of public ownership and in fact gave con- <br />siderable support throughout its opinion to the <br />real purpose of such a declaration' to demon' <br />strate the state's power to preserve and regulate <br />the use of important resources, For the purposes <br />of this report, the Nebraska Supreme Court <br />declaration that groundwater is publicly owned <br />appears to remain valid even though the state <br />court decision was reversed on another point. <br /> <br />RELEVANT NEBRASKA STATUTES <br /> <br />The nature and extent of the individual land- <br />owner's rights in the groundwater supply are not <br />determined solely by case law, One recent <br />Nebraska statute (LB 375) directly addresses <br />groundwater property rights, and numerous <br />other enactments have a more indirect, but <br />nevertheless significant, effect on those rights, <br />The court cases previously discussed have <br />clearly established the right of the legislature to <br />adopt such laws, In the Metropolitan Utilities <br />case discussed earlier, the Nebraska Supreme <br />Court explained the effects of its decision as ",,, <br />thus preserving the right of the Legislature, un. <br />impaired, to determine the policy of the state as <br />to underground waters and the rights of persons <br />in their use.',31 In the Sporhase case, the court <br />held that..... the public may limit or deny the right <br />of private parties to freely use the water when it <br />determines that the welfare of the state and its <br />citizens is at stake,..32 These cases provide a <br />strong basis for virtually any reasonable <br /> <br />1-5 <br />