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fll\'" " ." .,,, Perhaps the court in Prather was merely adding statutory preferences to the list of factors that should be considered in determining when one user causes unreasonable harm to another user. A contrary construction of the court's actions would give preferred groundwater users a property right that, depending upon the economic value of alternative uses, could effectively preclude any groundwater use by less preferred users irrespective of the amount Of water in storage. 6. State ex rei. Douglas v. Sporhase'5 (19S1) Sporhase is the most recent pronouncement of the Nebraska Supreme Court concerning groundwater property rights. In that case the court upheld a Nebraska statute that forbids transporting groundwater across state lines without a permit.26 While the state supreme court opinion was later reversed by the United States Supreme Court because a portion of the Nebraska statute was found to create an undue burden on interstate commerce, the state court opinion continues to have eJ<tremely significant implications for the definition 01 groundwater property rights and on the power of the legis- lature to regulate exercise of those rights. The Nebraska Supreme Court began Its opinion with a review of the Olson rule focusing on the language authorizing sharing in times of shortage. "The Olson court's inclusion of that concept demonstrates its view that water is a unique commodity subject to state regulation to assure that it is available to everyone in the stale in relation 10 their need, rather than their ability to pay for il:'27 In discussing the subsequent Metropolitan Utilities case, the court stated. "The opinion clearly held thaI the legislature has the power to determine public poliCY with regard to groundwater and that it may be transferred from the overlying land only with the consent of and to the extent prescribed by the public through its elected representatives:,28 Finally, in sweeping language, the Nebraska Supreme Court declared that groundwater is publicly owned, and went on to state: The pubhc. through legislative aclion. may grant to private persons the right to the use of publicly owned waters for private purpose; but as the Olson opinion demon- strates. with Its emphasis on sharing in times of shortage, the public may limit or deny the right of private parties to freely use the water when it determines that the welfare of the state and Its citizens is at stake,29 The court went on to stress that groundwater use is not an unlimited pflvate property fight in Nebraska but rather a narrowly circumscribed right of reasonable use only on overlying land. Furthermore. the public apparently retains ownership of the water even after private capture since the court notes ..that conditioning a land. owne(s right to transfer groundwater either within or without Nebraska does not deprive him ot a property right. since. under Nebraska common law, groundwater may not be trans- ferred oll the overlYing Nebraska land at all unless the pubhe. owners ot the water. grant that . hI ..30 rig . As noted earlier, the Nebraska Supreme Court decision upholding the constitutIonality of the statute governing exportation of groundwater was appealed to the United States Supreme Court \oIfhere it was reversed In arriving at its decision, the U.S, Supreme Court addressed the state supreme court's claim that groundwater in Nebraska was publiCly owned. The U.S. Court dismissed such a claim as a means to aVOid scrutinY under the Commerce clause of the United States Constitution and found that a reciproCity clause in the anti-exportation statute did unduly burden Interstate commerce. How- ever, the Courl did not strike down the declar- ation Of public ownership and in fact gave con- siderable support throughout its opinion to the real purpose of such a declaration. to demon- strate the stale's power to preserve and regulate the use of Important resources. For the purposes of this report. the Nebraska Supreme Court declarallon that groundwater is publicly owned appears to remain valid even though the state COLlrt decision was reversed on another pOint. RELEVANT NEBRASKA STATUTES The nature and extent of the indiVidual land. owner's rights in the groundwater supply are not determined solely by case law. One recent Nebraska statute (LB 375) directly addresses groundwater property rights, and numerous other enactments have a more indirect. but nevertheless significant. effect on those rights, The court cases previously discussed have clearly established the right of the legislature to adopt such laws. In the Metropolitan Utilities case discussed earlier, the Nebraska Supreme Court explained the effects of its decision as ..... thus preserving the right of the Legislature. un- impaired, to determine the policy of the state as to underground walers and the rights of persons in their use."31 In the Sporhase case, the court held that..... the publiC may limit or deny the right of private parties to freely use the water when it determines that the welfare of the state and its citizens is at stake...32 These cases provide a strong basis for virtually any reasonable '.5