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297 Nebraska Report

FRENCHMAN-CAMBRIDGE IRR. DIST. v. DEPT. OF NAT. RES.

Cite as 297 Neb. 999

Frenchman-Cambridge Irrigation District,

Board of Directors, a Nebraska poli

subdivision, appellant and cross-appell

v. Nebraska Department of Natu

Resources et al., appelle

and cross-appellan

___ N.W.2d ___

Filed October 6, 2017. No. S-16-1121.

1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s 

grant of a motion to dismiss on the pleadings is reviewed de novo, 

accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party.

2. Jurisdiction: Appeal and Error. Before proceeding to the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it.

3. Actions: Jurisdiction. Lack of subject matter jurisdiction may be raised 

at any time by any party or by the court sua sponte.

4. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy 

before it.

5. Standing: Proof. To have standing, a litigant first must clearly demonstrate that it has suffered an injury in fact. That injury must be concrete 

in both a qualitative and temporal sense.

6. Complaints: Justiciable Issues. A complainant must allege an injury 

to itself that is distinct and palpable, as opposed to merely abstract, 

and the alleged harm must be actual or imminent, not conjectural 

or hypothetical.

Appeal from the District Court for Furnas County: James E.

Doyle IV, Judge. Vacated and dismiss

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/13/2017 08:11 AM CDT
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FRENCHMAN-CAMBRIDGE IRR. DIST. v. DEPT. OF NAT. RES.

Cite as 297 Neb. 999

David A. Domina and Christian T. Williams, of Domina Law 

Group, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, Justin D. Lavene, 

Joshua E. Dethlefsen, and Kathleen A. Miller for appellees.

Heavican, C.J., Wright, Miller-Lerman, Cassel,

and Funke, JJ

Kelch, 

NATURE OF CASE

Frenchman-Cambridge Irrigation District (FCID) appeals 

the district court’s order dismissing its petition under Neb. 

Ct. R. Pldg. § 6-1112(b)(6) for failure to state a claim upon 

which relief can be granted. Before determining whether 

the district court’s dismissal of the petition was proper, this 

court must determine whether FCID has standing to challenge the integrated management plans at issue and whether 

the court has subject matter jurisdiction pursuant to Neb. Rev. 

Stat. § 46-750 (Reissue 2010) or Neb. Rev. Stat. § 84-911(1) 

(Reissue 2014).

BACKGROUND

FCID is a political subdivision created pursuant to the 

irrigation districts statutes,1 under which FCID is authorized 

to enter into contracts to supply water for irrigation purposes with any person and with certain organizations within 

its district.2 According to its petition, FCID uses the revenue from its sale of water to fulfill contractual obligations 

to the U.S. Department of the Interior and the U.S. Bureau 

of Reclamation.

FCID is located within the Republican River Basin. The 

portion of the basin located in Nebraska is divided into three 

1 See Neb. Rev. Stat. § 46-101 et seq. (Reissue 2010 & Cum. Supp. 2016).

2 § 46-1,143.
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FRENCHMAN-CAMBRIDGE IRR. DIST. v. DEPT. OF NAT. RES.

Cite as 297 Neb. 999

natural resources districts: the Upper Republican Natural 

Resources District, the Middle Republican Natural Resources 

District, and the Lower Republican Natural Resources District. 

Each natural resources district (NRD), along with the other 

NRD’s in Nebraska, was created by statute3 to develop and 

conserve the state’s natural resources, including its ground 

water and surface water.4

In 2004, portions of the Republican River Basin were 

declared “fully appropriated.”5 When a river basin is determined to be fully appropriated, Neb. Rev. Stat. § 46-715 (Cum. 

Supp. 2016) of the Nebraska Ground Water Management and 

Protection Act provides that the NRD’s encompassing the 

basin and the Department of Natural Resources (Department) 

shall jointly develop an integrated management plan (IMP) to 

achieve and sustain a balance between water uses and water 

supplies for the long term.

In December 2015, the Republican River Basin NRD’s 

adopted, and the Department approved, IMP’s that provided for a 20-percent reduction in ground water pumping 

in the Republican River Basin area. Before these IMP’s 

were adopted and approved, previous IMP’s provided for a 

25-percent reduction in ground water pumping. Thus, the new 

IMP’s allow for 5 percent more ground water pumping than 

the previous ones.6

In January 2016, FCID filed a petition for review under 

the Administrative Procedure Act,7 challenging the newly 

approved IMP’s on constitutional and other grounds. In 

the petition, FCID alleges that the IMP’s violate the U.S. 

3 Neb. Rev. Stat. § 2-3203 (Reissue 2012).

4 Neb. Rev. Stat. § 2-3229 (Reissue 2012).

5 Frenchman-Cambridge Irr. Dist. v. Dept. of Nat. Res., 281 Neb. 992, 996, 

801 N.W.2d 253, 257 (2011).

6 See Kansas v. Nebraska, ___ U.S. ___, 135 S. Ct. 1042, 191 L. Ed. 2d 1 

(2015).

7 See Neb. Rev. Stat. § 84-901 et seq. (Reissue 2014).
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Constitution’s Compact Clause,8 Commerce Clause,9 Equal 

Protection Clause,10 and Due Process Clause,11 as well as 

provisions of the Nebraska Constitution and the Republican 

River Compact. As defendants in the suit, FCID listed the 

Department, the director of the Department, the Republican 

River Basin NRD’s, and the Attorney General.

In March 2016, the defendants filed a motion to dismiss 

pursuant to § 6-1112(b)(1) and (6) for lack of subject matter 

jurisdiction and for failure to state a claim upon which relief 

can be granted. A hearing on the matter was held on July 14.

On November 3, 2016, the district court issued an order 

granting the motion to dismiss. The district court found that 

there was subject matter jurisdiction, but dismissed the petition for failure to state a claim upon which relief could 

be granted.

From that order, FCID appeals and the defendants 

cross-appeal.

ASSIGNMENTS OF ERROR

Although FCID agrees with the district court that it had subject matter jurisdiction, FCID assigns that “the basis on which 

it found jurisdiction was not completely correct.” FCID also 

assigns, combined and restated, that the district court erred in 

finding that its petition failed to state a claim upon which relief 

could be granted and in failing to find that the IMP’s were 

invalid on constitutional and statutory grounds.

The defendants cross-appeal and assign, combined and 

restated, that the district court erred in finding that FCID had 

standing, that the court had subject matter jurisdiction, and that 

the IMP’s are “‘rules and regulations.’”

8 U.S. Const. art. I, § 10, cl. 3.

9 Id., § 8, cl. 3.

10 U.S. Const. amend. 14.

11 Id.
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FRENCHMAN-CAMBRIDGE IRR. DIST. v. DEPT. OF NAT. RES.

Cite as 297 Neb. 999

STANDARD OF REVIEW

[1] A district court’s grant of a motion to dismiss on the 

pleadings is reviewed de novo, accepting the allegations in 

the complaint as true and drawing all reasonable inferences in 

favor of the nonmoving party.12

ANALYSIS

[2,3] Before proceeding to the legal issues presented for 

review, it is the duty of an appellate court to determine whether 

it has jurisdiction over the matter before it.13 FCID claims that 

the district court, acting as an intermediate appellate court, 

erred when it considered and granted the defendants’ motion to 

dismiss for lack of subject matter jurisdiction. However, lack 

of subject matter jurisdiction may be raised at any time by any 

party or by the court sua sponte.14

[4] In this case, the State has raised two issues regarding 

subject matter jurisdiction: whether FCID has standing to challenge the IMP’s15 and whether the district court had subject 

matter jurisdiction under § 46-750 or § 84-911(1). Because we 

conclude that FCID lacks standing to challenge the IMP’s, we 

do not reach the second issue. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.16

[5,6] To have standing, a litigant first must clearly demonstrate that it has suffered an injury in fact.17 That injury must 

12 Zapata v. McHugh, 296 Neb. 216, 893 N.W.2d 720 (2017).

13 Steven S. v. Mary S., 277 Neb. 124, 760 N.W.2d 28 (2009).

14 Davis v. Choctaw Constr., 280 Neb. 714, 789 N.W.2d 698 (2010).

15 See In re Invol. Dissolution of Wiles Bros., 285 Neb. 920, 924, 830 

N.W.2d 474, 478 (2013) (“[t]he defect of standing is a defect of subject 

matter jurisdiction”).

16 Selma Development v. Great Western Bank, 285 Neb. 37, 825 N.W.2d 215 

(2013).

17 Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 788 

N.W.2d 252 (2010).
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FRENCHMAN-CAMBRIDGE IRR. DIST. v. DEPT. OF NAT. RES.

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be concrete in both a qualitative and temporal sense.18 A complainant must allege an injury to itself that is distinct and palpable, as opposed to merely abstract, and the alleged harm must 

be actual or imminent, not conjectural or hypothetical.19

FCID claims it has standing because the IMP’s, which 

allow for increased ground water pumping, will deprive it of 

waters that would otherwise be available for its operations. 

In its petition for review, FCID alleges in part that increased 

ground water pumping will “interfere with stream recharge 

and flow . . . and [will] diminish surface waters otherwise 

subject to capture and diversion for use by FCID to fill its 

priority flow permits.” FCID further alleges that the reduced 

streamflow will cause it to have to modify its budget and 

operations and to “attempt to negotiate for relief [for defaulting] from its obligations to [the Department of the Interior] 

and [the Bureau of Reclamation].”

We have previously considered the issue of standing in the 

water dispute case of Central Neb. Pub. Power Dist. v. North 

Platte NRD.

20 In that case, we held that an irrigation district 

did not adequately allege how its particular water use interest had been injured by an order of an NRD when it merely 

alleged that the order would cause a reduced water supply. 

In other words, the irrigation district failed to state how a 

reduced water supply would cause it harm. Here, however, 

FCID has additionally alleged that the reduced water supply 

would cause it to have to modify its budget and operations and 

to negotiate for relief for breaching its contracts. Thus, FCID 

argues that this case is distinguishable from Central Neb. Pub. 

Power Dist., because its petition contains more specific allegations of harm than those in that case.

However, although FCID alleges more specific allegations of harm than those alleged in Central Neb. Pub. Power 

18 Id.

19 Id.

20 Id.
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Dist., that additional alleged harm does not occur unless the 

IMP’s actually decrease the water supply. And, as the defendants point out, the IMP’s do not by themselves cause more 

ground water to be pumped. Instead, IMP’s are simply jointly 

developed plans for how water will be managed.21 Although 

the IMP’s set forth the water controls that may be employed 

in times of water shortage, the IMP’s themselves do not 

actually implement the controls. Instead, for those controls 

to be implemented, the NRD’s must determine that such 

controls are necessary and issue subsequent orders pursuant 

to § 46-715 and Neb. Rev. Stat. §§ 46-718(2) and 46-739 

(Reissue 2010).

This conclusion can be drawn not only from the three 

statutory sections above, but from the IMP’s themselves. For 

example, within the IMP developed by the Department and 

the Middle Republican NRD, it states, “In accordance with 

Neb. Rev. Stat. § 46-715, one or more of the ground water 

controls authorized by Neb. Rev. Stat. § 46-739 and Neb. Rev. 

Stat. § 46-740 shall be adopted for the purpose of implementing this plan.” In the IMP developed by the Department and 

the Upper Republican NRD, as well as the IMP developed 

by the Department and the Lower Republican NRD, it states 

that “[t]he [NRD] will utilize the ground water controls as 

provided by Neb. Rev. Stat. §§ 46-715, 46-739, and 46-740 

to form the Ground Water Controls component of this IMP.” 

Section 46-739 authorizes the NRD to issue the actual order 

that would limit the water usage by appropriators.

Before orders are issued pursuant to § 46-739, the IMP’s 

contemplate that reviews of the water usage must be necessary. All of the IMP’s at issue state that the “ground water 

depletions are maintained within their portion of Nebraska’s 

Allowable Ground Water Depletions as computed through 

use of the Republican River Compact Administration Ground 

Water Model” and that “voluntary reductions in baseline 

21 See § 46-715.
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pumping volumes will continue to be pursued by the [NRD] 

with the incentive of limiting the level of long-term management actions that are necessary during Compact Call Years.” 

Finally, under the “Compliance Standards” section of each 

IMP, it states that “[o]n an annual basis the [Department] and 

[NRD] shall reexamine the sufficiency and effectiveness of the 

Compliance Standards to determine if amendments or modifications are necessary to ensure the State’s compliance with the 

[Final Settlement Stipulation] and Compact.” These examples 

reflect that the IMP’s call for an annual review and that based 

upon the review, additional orders could be issued as needed. 

If and when such orders are issued, FCID would then have the 

right to seek judicial review depending upon the issue in question and the nature of the order.

Our conclusion that FCID has failed to show that the 

IMP’s have caused an injury-in-fact is also supported by the 

Eighth Circuit’s decision in Sierra Club v. Robertson.

22 That 

case involved a challenge to a land and resource management 

plan under the National Forest Management Act of 1976. In 

Sierra Club, the plaintiffs challenged the plan, alleging that 

the amount and method of timber harvesting permitted by the 

plan caused environmental or aesthetic harm, in violation of 

the National Forest Management Act of 1976 and the National 

Environmental Policy Act of 1969. But because the latter act 

required an additional stage of site-specific analysis before 

any timber could actually be cleared, the Eighth Circuit held 

that the asserted injury was not sufficiently imminent at the 

initial forest planning stage to create an injury in fact and that 

thus, the plaintiffs failed to establish standing.23 Similarly, 

here, FCID’s asserted injury is not sufficiently imminent 

because in order for the water controls set forth in the IMP’s 

to be implemented, the NRD would have to determine that 

such controls were necessary and issue subsequent orders. 

22 Sierra Club v. Robertson, 28 F.3d 753 (8th Cir. 1994).

23 Id.
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FRENCHMAN-CAMBRIDGE IRR. DIST. v. DEPT. OF NAT. RES.

Cite as 297 Neb. 999

Accordingly, we conclude that FCID has failed to establish 

standing and that as a result, this court lacks jurisdiction.24

Therefore, we dismiss the appeal.

Because we conclude that FCID lacks standing to challenge the IMP’s, we need not reach the second jurisdictional question.25

CONCLUSION

For the foregoing reasons, we conclude that FCID lacked 

standing to challenge the IMP’s and that the district court 

lacked jurisdiction over the case. As a result, we also lack 

jurisdiction and dismiss the appeal and cross-appeal and hereby 

vacate the order of the district court for lack of jurisdiction.

Vacated and dismiss

Stacy, J., not participatin

24 See Landrum v. City of Omaha Planning Bd., ante p. 165, 899 N.W.2d 598 

(2017).

25 See Johnson v. Nelson, 290 Neb. 703, 861 N.W.2d 705 (2015) (appellate 

court is not obligated to engage in analysis that is not necessary to 

adjudicate case and controversy before it).