<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 />
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