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Cite as 296 Neb. 228

J. Daniel Estermann, appellant, v. Bill Bose et al., 

board members of Nebraska Cooperative Republican

Platte Enhancement Project, a political subdivision

of the State of Nebraska, and Nebraska

Cooperative Republican Platte Enhancement

Project, a political subdivision of the

State of Nebraska, appellees.

___ N.W.2d ___

Filed April 7, 2017. No. S-15-1022.

1. Summary Judgment: Appeal and Error. An appellate court will 

affirm a lower court’s grant of summary judgment if the pleadings and 

admitted evidence show that there is no genuine issue as to any material 

facts or as to the ultimate inferences that may be drawn from those facts 

and that the moving party is entitled to judgment as a matter of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

4. Pleadings: Appeal and Error. An appellate court reviews a district 

court’s denial of a motion for leave to amend a complaint for an abuse 

of discretion. However, an appellate court reviews de novo an underlying legal conclusion that the proposed amendments would be futile.

5. Summary Judgment. On a motion for summary judgment, the question 

is not how the factual issue is to be decided but whether any real issue 

of material fact exists.

6. Summary Judgment: Proof. A party moving for summary judgment 

makes a prima facie case for summary judgment by producing enough 

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

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evidence to demonstrate that the movant is entitled to judgment if the 

evidence were uncontroverted at trial.

7. ____: ____. Once the moving party makes a prima facie case, the burden shifts to the party opposing the motion to produce admissible contradictory evidence showing the existence of a material issue of fact that 

prevents judgment as a matter of law.

8. Constitutional Law: Eminent Domain: Taxation: Public Purpose. 

A citizen’s property may not be taken against his or her will, except 

through the sovereign powers of taxation and eminent domain, both of 

which must be for a public purpose.

9. Eminent Domain: Public Purpose: Words and Phrases. Eminent 

domain is the State’s inherent power to take private property for a public use.

10. Constitutional Law: Eminent Domain: Legislature: Statutes. The 

State’s eminent domain power resides in the Legislature and exists independently of the Nebraska Constitution. But the constitution has limited 

the power of eminent domain, and the Legislature can limit its use further through statutory enactments.

11. Constitutional Law: Eminent Domain: Public Purpose. Under Neb. 

Const. art. I, § 21, the State can take private property only for a public 

use and only if it pays just compensation.

12. Eminent Domain: Legislature. Only the Legislature can authorize a 

private or public entity to exercise the State’s power of eminent domain.

13. Pleadings. A district court’s denial of leave to amend pleadings is 

appropriate only in those limited circumstances in which undue delay, 

bad faith on the part of the moving party, futility of the amendment, or 

unfair prejudice to the nonmoving party can be demonstrated.

14. Pleadings: Summary Judgment: Proof. After discovery is closed and 

a motion for summary judgment has been filed, the appropriate standard 

for assessing whether a motion to amend should be determined futile is 

that the proposed amendment must be not only theoretically viable but 

also solidly grounded in the record and supported by substantial evidence sufficient to give rise to a triable issue of fact.

15. Legislature: Waters. Nebraska’s common law does not allow water 

to be transferred off overlying land. But the Legislature may provide 

exceptions to this common-law rule.

Appeal from the District Court for Lincoln County: Richard

A. Birch, Judge. Affirmed.

Amy M. Svoboda, of Svoboda Law Office, and George G. 

Vinton for appellant.
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Donald G. Blankenau and Vanessa A. Silke, of Blankenau, 

Wilmoth & Jarecke, L.L.P., for appellees.

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

and Kathleen A. Miller, for amicus curiae Nebraska Attorney 

General.

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

Kelch, and Funke, JJ.

Miller-Lerman, J.

NATURE OF CASE

In this case, J. Daniel Estermann, the appellant, filed a complaint for injunction in the district court for Lincoln County 

against Bill Bose, Brad Randel, Jerry Weaver, and Terry 

Martin, who are board members of the Nebraska Cooperative 

Republican Platte Enhancement (N-CORPE) project, a political subdivision of the State of Nebraska, and N-CORPE (collectively the appellees), along with other parties who were 

later dismissed. Estermann filed this complaint in response 

to N-CORPE’s separate condemnation proceedings against 

Estermann pending in the county court for Lincoln County, in 

which N-CORPE sought an easement across Estermann’s real 

estate. Early on in this case, Estermann additionally filed an 

application for a temporary restraining order and a motion for 

temporary injunction, both of which the district court denied. 

The appellees subsequently filed a motion for summary judgment. After a hearing, the district court granted the appellees’ motion for summary judgment and dismissed Estermann’s 

complaint. Estermann appeals. We affirm; however, to some 

extent, our reasoning differs from that of the district court.

STATEMENT OF FACTS

N-CORPE is a political subdivision of the State of Nebraska 

that was created under the Interlocal Cooperation Act (ICA), 

Neb. Rev. Stat. § 13-801 et seq. (Reissue 2012), by four 

natural resources districts: the Upper Republican, the Middle 

Republican, the Lower Republican, and the Twin Platte.
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Each natural resources district (hereinafter NRD) is a political subdivision of Nebraska. The four NRD’s entered into 

an amended agreement in December 2013, which created 

N-CORPE. The amended agreement states that “N-CORPE 

shall constitute a separate body corporate and politic of the 

State of Nebraska exercising public powers and acting on 

behalf of the Parties hereto.” According to the amended agreement, the purpose of N-CORPE is to regulate and manage 

water to assist the State with compliance with the Republican 

River Compact (Compact). Nebraska, Kansas, Colorado, and 

the United States of America are parties to the Compact, 

and the Republican River Basin has been the subject of the 

Compact since 1943.

In Kansas v. Nebraska, ___ U.S. ___, 135 S. Ct. 1042, 1049, 

191 L. Ed. 2d 1 (2015), the U.S. Supreme Court described the 

Compact by stating:

The Compact apportions among the three States “the 

virgin water supply originating in” . . . the Republican 

River Basin. . . . “Virgin water supply,” as used in the 

Compact, means “the water supply within the Basin,” 

in both the River and its tributaries, “undepleted by the 

activities of man.” Compact Art. II. The Compact gives 

each State a set share of that supply—roughly, 49% to 

Nebraska, 40% to Kansas, and 11% to Colorado—for 

any “beneficial consumptive use.” Id., Art. IV; see Art. II 

(defining that term to mean “that use by which the water 

supply of the Basin is consumed through the activities of 

man”). In addition, the Compact charges the chief water 

official of each State with responsibility to jointly administer the agreement. See id., Art. IX. Pursuant to that provision, the States created the Republican River Compact 

Administration (RRCA). The RRCA’s chief task is to 

calculate the Basin’s annual virgin water supply by measuring stream flow throughout the area, and to determine 

(retrospectively) whether each State’s use of that water 

has stayed within its allocation.
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In 2002, the Compact was modified via a “Final Settlement 

Stipulation” (FSS), which was approved by the U.S. Supreme 

Court in Kansas v. Nebraska, supra.

In furtherance of its purpose to assist the State with compliance with the compact, the amended agreement creating 

N-CORPE states that N-CORPE’s business is to be conducted 

by a board and that each of the NRD’s is to have a member on 

the board. The amended agreement provides that “N-CORPE 

shall have all the powers, privileges and authority exercised or 

capable of being exercised by each of the individual and separate Parties [NRD’s] to achieve the purposes of the N-CORPE 

as set forth in this Agreement and as may be otherwise provided for in the [ICA].”

In the condemnation case, Lincoln County Court case No. 

CI 14-496, N-CORPE filed an amended petition to condemn 

in March 2014. N-CORPE stated in its amended petition that 

it was developing a “stream flow augmentation project” in 

Lincoln County in order to manage ground water and surface 

water in the Republican River Basin and to comply with the 

Compact. N-CORPE alleged in its amended petition that its 

project and petition were in response to the claim of the State 

of Kansas that it was not receiving its share of the Republican 

River water that was due to it under the Compact. N-CORPE 

stated in its amended petition that a portion of the water augmentation project was located over Estermann’s real estate 

in Lincoln County and that therefore, N-CORPE was seeking a permanent “Flowage and Right-of-Way Easement” over 

Estermann’s real estate in order to augment waterflow into 

Medicine Creek, which is a tributary of the Republican River.

After N-CORPE filed its amended petition to condemn, on 

April 1, 2014, Estermann filed the complaint in this case seeking an injunction against the appellees and Jeffrey Bain, Kent 

Florom, and Michael Nozicka. The latter three defendants were 

appraisers appointed by the county court for Lincoln County; 

they were subsequently dismissed as parties and are not parties 

to this appeal.
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Estermann alleged in his complaint that as a result of 

N-CORPE’s water augmentation project his real estate has 

flooded, causing increasing and irreparable damage to his land 

and crops, and that the floodwaters are creating new creek 

channels and are threatening to lower the water table under 

his fields. Estermann alleged that N-CORPE does not have 

the power of eminent domain, because “the [L]egislature has 

not delegated such powers to interlocal agencies under the 

[ICA]” and because the NRD’s do not have the authority to 

delegate to N-CORPE any eminent domain powers they may 

hold. Estermann further alleged in his complaint that (1) the 

condemnation is not for a public use; (2) the amount of real 

estate being condemned is excessive in duration and area; (3) 

means other than an eminent domain action are available to the 

parties; (4) N-CORPE failed to obtain approvals and permits 

from certain agencies, including the Lincoln County Board of 

Commissioners, the Middle Republican NRD, the Twin Platte 

NRD, and the Nebraska Department of Natural Resources 

(DNR); (5) N-CORPE failed to obtain approval of the water 

augmentation project from Kansas; and (6) N-CORPE is prohibited under Nebraska’s common law from transferring ground 

water off overlying land, and N-CORPE does not fall under 

any of the statutory exceptions to the common law. Therefore, 

Estermann requested that N-CORPE be enjoined from proceeding with the condemnation proceedings in case No. CI 14-496 

and that N-CORPE be enjoined from discharging water into 

Medicine Creek.

On the day Estermann filed his complaint for injunction, 

Estermann also filed an application in which he sought a temporary restraining order enjoining N-CORPE from proceeding with the eminent domain action and enjoining N-CORPE 

from discharging water into Medicine Creek. Two days later, 

on April 3, 2014, the district court filed an order in which it 

denied Estermann’s application for a temporary restraining 

order. In denying the application, the district court stated that 

“the failure to grant a temporary restraining order will not 
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impair [Estermann’s] ability to proceed on his Complaint for 

an Injunction.”

On April 16, 2014, Estermann filed a motion for temporary 

injunction that would enjoin N-CORPE from discharging water 

into Medicine Creek. Estermann alleged that the discharge of 

water into Medicine Creek during the pendency of the action 

would produce great irreparable injury to him. Estermann 

further alleged that N-CORPE does not have the power of 

eminent domain and therefore is not entitled to condemn an 

easement over his real estate. Estermann also alleged that he 

did not have an adequate remedy at law.

On April 30, 2014, the office of the Attorney General filed 

a motion for leave to file an amicus brief, in which it stated 

that it sought to offer guidance regarding an opinion that was 

issued by the Attorney General and its impact on the court’s 

interpretation of § 13-804 of the ICA, which generally deals 

with public agencies exercising joint power. See Att’y Gen. 

Op. No. 03026 (Dec. 5, 2003). The district court granted 

the motion.

On May 15, 2014, the district court filed an order in which 

it denied Estermann’s motion for temporary injunction. In the 

May 15 order, the district court determined that Estermann did 

not establish that he had a clear right to the relief he sought 

or that he would suffer a great or irreparable injury during 

the pendency of the litigation. The district court stated that 

Estermann’s main argument in support of his request for a temporary injunction was that the NRD’s that created N-CORPE 

cannot authorize N-CORPE to exercise the power of eminent 

domain. The district court rejected this argument.

In its order, the court noted that N-CORPE was created by 

the four NRD’s pursuant to the ICA. The court recognized 

that pursuant to Neb. Rev. Stat. § 2-3234 (Reissue 2012), 

each of the NRD’s has the power of eminent domain. Relying 

on § 13-804 of the ICA, the court further recognized that the 

NRD’s can authorize N-CORPE to exercise any of their powers 

or authority, including the power of eminent domain. Section 

13-804(1) provides:
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Any power or powers, privileges, or authority exercised 

or capable of exercise by a public agency of this state 

may be exercised and enjoyed jointly with any other 

public agency of this state and jointly with any public 

agency of any other state or of the United States to the 

extent that laws of such other state or of the United 

States permit such joint exercise or enjoyment. Any 

agency of state government when acting jointly with any 

public agency may exercise and enjoy all of the powers, 

privileges, and authority conferred by the [ICA] upon a 

public agency.

The district court noted in its May 15, 2014, order that 

although the evidence showed that Estermann would sustain 

damages from the water augmentation project, the evidence 

did not support a conclusion that he would “suffer a great 

or irreparable injury” before his complaint could be heard. 

Accordingly, the district court denied Estermann’s motion for 

temporary injunction.

On June 5, 2015, the appellees filed a motion for summary 

judgment. On July 17, Estermann filed a motion for leave 

to file an amended complaint, in which he proposed to add 

a claim that the acts of N-CORPE were improper because 

N-CORPE had not obtained approval from the Republican 

River Compact Administration (RRCA) for the water augmentation project.

On October 2, 2015, the district court filed an order 

regarding the appellees’ motion for summary judgment and 

Estermann’s motion for leave to file an amended complaint. 

The district court first denied Estermann’s motion for leave to 

file an amended complaint, stating that “any issues raised in 

the Amended Complaint can be dealt with under the original 

complaint. As such, the amendment is futile and the Motion for 

Leave to Amend Complaint is therefore overruled.”

The district court observed that Estermann disagreed with 

the policies that led to N-CORPE’s petitioning to condemn 

and acquire an easement across his property. The district court 
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stated that “[t]hose public policy decisions are constitutionally 

entrusted to other branches of government.”

The district court next rejected Estermann’s argument that 

the condemnation does not meet a public purpose. The district court stated that “complying with Nebraska’s obligation 

. . . under an interstate compact is certainly a public purpose.” 

The court stated that the burden placed on Estermann by 

the condemnation does not eliminate the public purpose of 

the condemnation.

The district court further stated in its October 2, 2015, order 

that in its previous order filed May 15, 2014, the court had 

concluded that the NRD’s had properly authorized N-CORPE 

to exercise the power of eminent domain. The district court 

stated that it believed that decision was correct and concluded 

that it “again holds that each of the four [NRD’s] that formed 

N-CORPE has the power of eminent domain [and] that such 

authority . . . was properly exercised by N-CORPE.”

The district court then rejected Estermann’s argument that 

even if N-CORPE had the authority to condemn the easement, 

it did not have the authority to transport water across his property within the easement area. With respect to Estermann’s 

contention that the common law prohibits N-CORPE from 

transferring ground water off the property on which it was 

pumped, the district court recognized that we stated in In re 

Referral of Lower Platte South NRD, 261 Neb. 90, 94, 621 

N.W.2d 299, 303 (2001), that “Nebraska’s common law does 

not allow water to be transferred off overlying land.” The 

district court stated, however, that we went on to state that 

“‘[t]he Legislature has the power to determine public policy 

with regard to ground water and . . . 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.’” 

Id., quoting State ex rel. Douglas v. Sporhase, 208 Neb. 703, 

305 N.W.2d 614 (1981), reversed on other grounds 458 U.S. 

941, 102 S. Ct. 3456, 73 L. Ed. 2d 1254 (1982). The district 

court concluded that by enacting statutes “relating to” NRD’s, 
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the Legislature modified the common law and removed any 

common-law prohibition against N-CORPE’s transfer of water 

off the overlying property.

With respect to Estermann’s argument that N-CORPE does 

not have the necessary permits from the DNR to operate the 

water augmentation project, the district court determined that 

even though Estermann had standing to challenge the taking of the easement, he did not have standing to challenge 

whether N-CORPE has the permits needed to use the easement. The district court further stated that even if Estermann 

had standing, he was not in the appropriate forum to raise 

that issue.

Based upon the foregoing, the district court determined 

that there were no material issues of fact in dispute, and it 

determined that the appellees were entitled to judgment as a 

matter of law. The district court granted the appellees’ motion 

for summary judgment and dismissed Estermann’s complaint 

with prejudice.

Estermann appeals.

ASSIGNMENTS OF ERROR

Estermann claims, restated, that the district court erred 

when it (1) determined that N-CORPE has authority to exercise the power of eminent domain, (2) failed to determine 

that certain permits and approvals had to be obtained and set 

forth in writing before N-CORPE could proceed in eminent 

domain, (3) determined that Estermann did not have standing 

to challenge whether N-CORPE lacked required permits and 

authority, (4) determined that Estermann was not in the appropriate forum to contest N-CORPE’s lack of certain permits and 

approvals, (5) failed to determine that the county court did not 

have jurisdiction over N-CORPE’s amended petition to condemn, (6) denied Estermann’s motion for leave to amend his 

complaint for injunction, (7) determined that Nebraska common law does not prohibit N-CORPE from removing ground 

water from overlying land, and (8) failed to find there were 
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material issues of fact as to whether N-CORPE’s condemnation action was for a public use.

STANDARDS OF REVIEW

[1,2] An appellate court will affirm a lower court’s grant 

of summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from those 

facts and that the moving party is entitled to judgment as a 

matter of law. Bixenmann v. Dickinson Land Surveyors, 294 

Neb. 407, 882 N.W.2d 910 (2016), modified on denial of 

rehearing 295 Neb. 40, 886 N.W.2d 277. In reviewing a summary judgment, an appellate court views the evidence in the 

light most favorable to the party against whom the judgment 

was granted and gives that party the benefit of all reasonable 

inferences deducible from the evidence. Id.

[3] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the 

court below. Hargesheimer v. Gale, 294 Neb. 123, 881 N.W.2d 

589 (2016).

[4] We review a district court’s denial of a motion for leave 

to amend a complaint for an abuse of discretion. See Bailey v. 

First Nat. Bank of Chadron, 16 Neb. App. 153, 741 N.W.2d 

184 (2007). See, also, Gonzalez v. Union Pacific RR. Co., 282 

Neb. 47, 803 N.W.2d 424 (2011). However, as we explain 

in greater detail later in this opinion, we review de novo an 

underlying legal conclusion that the proposed amendments 

would be futile. Bailey v. First Nat. Bank of Chadron, supra.

ANALYSIS

Estermann generally claims that the district court erred 

when it granted the appellees’ motion for summary judgment. 

We address Estermann’s specific assignments of error below. 

Because we find no merit to any of Estermann’s assignments of 

error, we affirm the decision of the district court.

[5] The principles regarding summary judgment are well 

established. On a motion for summary judgment, the question 
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is not how the factual issue is to be decided but whether 

any real issue of material fact exists. Cisneros v. Graham, 

294 Neb. 83, 881 N.W.2d 878 (2016). In reviewing a summary judgment, an appellate court views the evidence in the 

light most favorable to the party against whom the judgment 

was granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Strode v. City 

of Ashland, 295 Neb. 44, 886 N.W.2d 293 (2016). Summary 

judgment is proper when the pleadings and evidence admitted 

at the hearing disclose no genuine issue regarding any material 

fact or the ultimate inferences that may be drawn from those 

facts and that the moving party is entitled to judgment as a 

matter of law. Id.

[6,7] A party moving for summary judgment makes a prima 

facie case for summary judgment by producing enough evidence to demonstrate that the movant is entitled to judgment if 

the evidence were uncontroverted at trial. Cisneros v. Graham, 

supra. Once the moving party makes a prima facie case, the 

burden shifts to the party opposing the motion to produce 

admissible contradictory evidence showing the existence of 

a material issue of fact that prevents judgment as a matter of 

law. Id.

N-CORPE Has the Authority to 

Exercise Eminent Domain.

Estermann claims that the district court erred when it concluded that the NRD’s that created N-CORPE properly authorized N-CORPE to use the power of eminent domain and that 

N-CORPE properly possessed authority to exercise eminent 

domain. Because we agree with the district court’s legal conclusions, we find no merit to this assignment of error.

[8,9] As an initial matter, we first summarize the nature of 

eminent domain. Every citizen has the constitutional right to 

acquire, own, possess, and enjoy property. See Neb. Const. 

art. I, § 25. A citizen’s property may not be taken against his 

or her will, except through the sovereign powers of taxation 
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and eminent domain, both of which must be for a public purpose. Thompson v. Heineman, 289 Neb. 798, 857 N.W.2d 731 

(2015). See, also, Burlington Northern Santa Fe Ry. Co. v. 

Chaulk, 262 Neb. 235, 631 N.W.2d 131 (2001); Burger v. City 

of Beatrice, 181 Neb. 213, 147 N.W.2d 784 (1967). Eminent 

domain is the State’s inherent power to take private property 

for a public use. Thompson v. Heineman, supra.

[10-12] The State’s eminent domain power resides in 

the Legislature and exists independently of the Nebraska 

Constitution. Thompson v. Heineman, supra. But the constitution has limited the power of eminent domain, and the 

Legislature can limit its use further through statutory enactments. Id. Under Neb. Const. art. I, § 21, the State can take 

private property only for a public use and only if it pays 

just compensation. Thompson v. Heineman, supra. See, also, 

Burlington Northern Santa Fe Ry. Co. v. Chaulk, supra. Only 

the Legislature can authorize a private or public entity to exercise the State’s power of eminent domain. Id.

Under § 2-3234, the Legislature has delegated the power of 

eminent domain to NRD’s to carry out their authorized purposes. Section 2-3234 provides in part: “Except as provided in 

sections 2-3226.11 and 2-3234.02 to 2-3234.09, each district 

shall have the power and authority to exercise the power of 

eminent domain when necessary to carry out its authorized 

purposes within the limits of the district or outside its boundaries.” Accordingly, the four NRD’s that formed N-CORPE 

each had the power of eminent domain.

Pursuant to the ICA, the NRD’s may exercise their authority and other powers alone or jointly with other local governmental units. Nebraska permits interlocal agreements pursuant 

to the ICA. Kubicek v. City of Lincoln, 265 Neb. 521, 658 

N.W.2d 291 (2003). The ICA’s purpose is “to permit local governmental units to make the most efficient use of their taxing 

authority and other powers by enabling them to cooperate with 

other localities on a basis of mutual advantage and thereby to 

provide services and facilities.” See § 13-802.
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Under § 13-804(2), two or more public agencies may enter 

into agreements with one another for joint or cooperative 

action under the ICA. See City of Falls City v. Nebraska Mun. 

Power Pool, 279 Neb. 238, 777 N.W.2d 327 (2010). The ICA 

authorizes the creation of a joint entity whose express authority is limited to executing the enumerated powers of the agencies which created it. Section 13-803(1) of the ICA provides 

that for purposes of the ICA, “[j]oint entity shall mean an 

entity created by agreement pursuant to section 13-804.” As 

quoted earlier in this opinion, with respect to joint entities, 

§ 13-804(1) provides:

Any power or powers, privileges, or authority exercised 

or capable of exercise by a public agency of this state 

may be exercised and enjoyed jointly with any other 

public agency of this state and jointly with any public 

agency of any other state or of the United States to the 

extent that laws of such other state or of the United 

States permit such joint exercise or enjoyment. Any 

agency of state government when acting jointly with any 

public agency may exercise and enjoy all of the powers, 

privileges, and authority conferred by the [ICA] upon a 

public agency.

Section 13-804(2) provides:

Any two or more public agencies may enter into agreements with one another for joint or cooperative action 

pursuant to the [ICA]. Appropriate action by ordinance, 

resolution, or otherwise pursuant to law of the governing 

bodies of the participating public agencies shall be necessary before any such agreement may enter into force.

With respect to how the ICA is to be construed, § 13-825 

provides:

The provisions of the [ICA] shall be deemed to provide an additional, alternative, and complete method for 

the doing of the things authorized by the act and shall 

be deemed and construed to be supplemental and additional to, and not in derogation of, powers conferred 
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upon political subdivisions, agencies, and others by law. 

Insofar as the provisions of the [ICA] are inconsistent 

with the provisions of any general or special law, administrative order, or regulation, the provisions of the [ICA] 

shall be controlling.

Estermann claims that the district court erred when it determined that N-CORPE had the authority to exercise the power 

of eminent domain. Estermann contends that the Legislature 

did not specify in the ICA or elsewhere that an interlocal 

agency created pursuant to the ICA could have the power of 

eminent domain. Estermann further asserts that

the only way an interlocal agency could have condemnation powers is if the Nebraska Legislature had included 

language in the ICA to the effect that all agencies created 

under the ICA have eminent domain power or perhaps 

language to the effect that any such agency does possess 

eminent domain powers so long as the government agencies that created it have those powers.

Brief for appellant at 22. Estermann contends that only the 

Legislature is capable of delegating eminent domain power and 

that because the Legislature did not explicitly state that interlocal agencies, such as N-CORPE, may have eminent domain 

power, N-CORPE does not have the power to exercise eminent 

domain. We disagree.

In December 2013, the four NRD’s formed N-CORPE by 

entering into an amended agreement pursuant to the ICA. As 

stated above, pursuant to § 2-3234, the NRD’s that formed 

N-CORPE each had the power of eminent domain. Under 

§ 13-804, local governmental units are authorized to jointly 

exercise their individually held authority and powers through 

a joint entity created under the ICA. Therefore, because the 

NRD’s that formed N-CORPE each individually held the 

power of eminent domain, the NRD’s were able to jointly 

exercise that individually held power through the mechanism 

of the joint entity they created, i.e., N-CORPE, and thus, 

N-CORPE was authorized to exercise the power of eminent 

domain. When the NRD’s formed N-CORPE as a joint entity 
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under the ICA, they did not lose any of the powers, privileges, 

or authorities that they separately held, including the power of 

eminent domain. Instead, the powers, privileges, and authorities that the NRD’s were capable of exercising separately 

could be exercised and enjoyed jointly with the other NRD’s 

through the mechanism of their joint entity, N-CORPE. See 

§ 13-804(1).

The foregoing description of the N-CORPE’s authority to 

act and the simultaneous power of eminent domain retained by 

the NRD’s is in accord with § 13-825, which provides:

The provisions of the [ICA] shall be deemed to provide an additional, alternative, and complete method for 

the doing of the things authorized by the act and shall be 

deemed and construed to be supplemental and additional 

to, and not in derogation of, powers conferred upon political subdivisions, agencies, and others by law.

(Emphasis supplied.) Thus, under § 13-825, the formation 

of N-CORPE did not remove or degrade powers that the 

Legislature had already granted to the NRD’s by statute. Rather, 

the formation by the NRD’s of the joint entity N-CORPE under 

the provisions of the ICA created a method of exercising 

eminent domain which was “supplemental and additional to, 

and not in derogation of, powers” conferred on the NRD’s. 

Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation 

to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous. Stewart v. Nebraska Dept. of Rev., 

294 Neb. 1010, 885 N.W.2d 723 (2016). Under the clear language of §§ 13-804 and 13-825, N-CORPE is authorized by the 

ICA to serve as the method to exercise the power of eminent 

domain to the extent that eminent domain had been conferred 

on the NRD’s.

We have previously recognized that the authority and powers of governmental entities can be exercised and enjoyed 

jointly with other governmental entities through a joint entity 

created pursuant to the ICA. See Kubicek v. City of Lincoln, 

265 Neb. 521, 658 N.W.2d 291 (2003). Although Kubicek
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did not directly involve the issue of the exercise of the power 

of eminent domain, we find its description of a joint entity 

useful. In Kubicek, we noted that three governmental entities 

created a joint entity—referred to as the “joint administrative 

agency”—pursuant to an interlocal cooperation agreement for 

the purpose of completing a project. This court stated that 

“[b]efore the creation of [the joint agency], each partner had 

the statutory authority to implement certain aspects of the 

project. Together, through [the joint agency], the three partners have complete statutory authority to implement the whole 

project.” Kubicek v. City of Lincoln, 265 Neb. at 523-24, 658 

N.W.2d at 294. Accordingly, the joint entity was able to exercise the express powers and authorities that were held by the 

governmental agencies which created it. Similarly, in this case, 

N-CORPE may exercise the powers and authorities that were 

held individually by the four NRD’s that created it pursuant to 

the ICA, namely the power of eminent domain.

For these reasons, we determine that the district court did 

not err when it concluded that N-CORPE had the authority to 

exercise the power of eminent domain. We find no merit to this 

assignment of error.

N-CORPE Did Not Lack Necessary 

Permits or Approvals.

Estermann claims that the district court erred when it failed 

to determine that N-CORPE was required to obtain permits and 

approvals from the DNR and the NRD’s in order to implement 

and operate the N-CORPE project and to utilize the easement 

over Estermann’s property. We find no merit to this assignment 

of error.

Neb. Rev. Stat. § 76-704 (Reissue 2009) provides: “If any 

condemnee shall fail to agree with the condemner with respect 

to the acquisition of property sought by the condemner, a petition to condemn the property may be filed by the condemner in 

the county court of the county where the property or some part 

thereof is situated.” Estermann claims that N-CORPE failed to 

comply with Neb. Rev. Stat. § 76-704.01(7) (Reissue 2009), 
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which provides that if approval of another agency is required, 

“[a] petition filed pursuant to section 76-704, shall . . . set forth 

the approval in writing of such agency.” Estermann asserts 

that N-CORPE failed to obtain such approvals as required 

by § 76-704.01 and set forth said approvals in its petition 

to condemn.

We note that the district court determined that Estermann 

does not have standing to challenge whether N-CORPE has the 

permits needed to use the easement and that even if Estermann 

did have standing, he was not in the appropriate forum within 

which to raise the issue. Assuming without deciding that 

Estermann had standing and was in the proper forum, as set 

forth below, we determine that N-CORPE was not required to 

obtain the permits and approvals alleged by Estermann. And in 

view of our resolution of the permits issue, we do not address 

Estermann’s assignments of error to the effect that the district 

court erred when it determined that Estermann did not have 

standing to challenge N-CORPE’s lack of permits and that he 

was not in the appropriate forum to raise the issue. See In re 

Interest of Jackson E., 293 Neb. 84, 87, 875 N.W.2d 863, 866 

(2016) (“[a]n appellate court is not obligated to engage in an 

analysis that is not necessary to adjudicate the case and controversy before it”).

Estermann first asserts that that N-CORPE was required to 

obtain a permit from the DNR to conduct water into or along 

natural channels pursuant to Neb. Rev. Stat. § 46-252 (Reissue 

2010). We will refer to this as a “conduct water permit.” 

Section 46-252 generally provides that a conduct water permit 

allows a permit holder to utilize naturally occurring waterways 

to move a quantity of water from one point to another. A conduct water permit is required if an applicant wants the DNR to 

monitor and protect the quantity of water as it moves downstream. Section 46-252 provides in part:

(1) Any person may conduct, either from outside the 

state or from sources located in the state, quantities of 

water over and above those already present into or along 

any of the natural streams or channels of this state, for 
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purposes of instream beneficial uses or withdrawal of 

some or all of such water for out-of-stream beneficial 

uses, at any point without regard to any prior appropriation of water from such stream, due allowance being 

made for losses in transit to be determined by the [DNR]. 

The [DNR] shall monitor movement of the water by 

measurements or other means and shall be responsible for 

assuring that such quantities are not subsequently diverted 

or withdrawn by others unless they are authorized to do 

so by the person conducting the water.

(2) Except as provided in subsections (3) and (4) 

of this section, before any person may conduct water 

into or along any of the natural streams or channels of 

the state, he or she shall first obtain a permit from the 

[DNR]. Application for the permit shall be made on 

forms provided by the [DNR]. Applications shall include 

plans and specifications detailing the intended times, 

amounts, and streamreach locations and such other information as required by the [DNR]. The water subject to 

such a permit shall be deemed appropriated for the use 

specified in the permit. Permitholders shall be liable 

for any damages resulting from the overflow of such 

stream or channel when water so conducted contributed 

to such overflow.

The exceptions set forth in subsections (3) and (4) of § 46-252 

are not applicable to this case.

Although the N-CORPE project adds quantities of water to 

the stream, it does not require a conduct water permit, because 

unlike the scenarios described in § 46-252, N-CORPE is not 

attempting to guarantee that a certain quantity of water is used 

for a beneficial use or reaches a certain point downstream for a 

particular use. Rather, the purpose of the N-CORPE project is 

simply to add water to the Republican River Basin in order to 

offset water depletion.

We note that while some of the water eventually reaches 

Kansas, this does not mean that a conduct water permit is 

required. A conduct water permit provides protection for a 
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quantity of water as it travels along from one point to another. 

Estermann points to the fact that the State of Wyoming was 

granted a water conduct permit under § 46-252 to conduct water 

in the North Platte River from Wyoming’s Pathfinder Reservoir 

to Nebraska’s Kingsley Reservoir in order to comply with 

Wyoming’s obligations under the Nebraska-Wyoming settlement agreement and the Platte River Recovery Implementation 

Program. Estermann contends that because Wyoming obtained 

a water conduct permit, one is required herein. We do not 

agree. According to the undisputed record, Wyoming sought 

the permit in order to protect the amount of water it was conducting in the North Platte River from the Wyoming-Nebraska 

State line for delivery to the Kingsley Reservoir in Nebraska. 

In contrast, in this case, N-CORPE is augmenting the flow 

of water into Medicine Creek to the Republican River Basin, 

but it is not attempting to guarantee the delivery of a specific 

quantity of water past the headwaters of Medicine Creek. 

Under the circumstances, N-CORPE does not need a conduct 

water permit pursuant to § 46-252.

Estermann also asserts that N-CORPE was required to 

obtain a permit from the DNR to transfer ground water pursuant to Neb. Rev. Stat. § 46-613.01 (Reissue 2010) in order to 

construct and operate the project. Pursuant to § 46-613.01, a 

ground water transfer permit requires that “[a]ny person, firm, 

city, village, municipal corporation, or other entity intending to withdraw ground water from any water well located 

in the State of Nebraska and transport it for use in another 

state shall apply to the [DNR] for a permit to do so.” 

(Emphasis supplied.)

The purpose of the N-CORPE project is to increase the 

amount of water available in the Republican River Basin, but it 

is not the purpose of the N-CORPE project to transport water 

explicitly for use in Kansas. Because the N-CORPE project does not seek to transport water for use in another state, 

N-CORPE did not need to obtain a ground water transfer permit pursuant to § 46-613.01. Compare, Sporhase v. Nebraska 
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ex rel. Douglas, 458 U.S. 941, 102 S. Ct. 3456, 73 L. Ed. 2d 

1254 (1982) (concerning applicant with contiguous tracts in 

Nebraska and Colorado who pumped ground water from well 

in Nebraska to irrigate applicant’s tracts in both Nebraska and 

Colorado); Ponderosa Ridge LLC v. Banner County, 250 Neb. 

944, 554 N.W.2d 151 (1996) (concerning applicant with contiguous tracts in Wyoming and Nebraska who sought ground 

water transfer permit to irrigate farmland in Wyoming with 

water from well in Nebraska).

We additionally note that our resolution of the DNR permit 

issues is supported by the record which shows that the DNR 

was fully aware of the N-CORPE project. Specifically, the 

record shows that the director of the DNR and the predecessor 

acting director of the DNR determined that N-CORPE did not 

require a permit under either § 46-252 or § 46-613.01.

Estermann also argues that N-CORPE was required under 

its respective rules and regulations to obtain permits from the 

Middle Republican NRD and the Twin Platte NRD before 

operating the N-CORPE project. The Middle Republican NRD 

and the Twin Platte NRD are two of the four NRD’s that created the joint entity, N-CORPE, for the purposes of completing 

the N-CORPE project. Pursuant to the amended agreement 

that created N-CORPE, each of the four NRD’s had a member on the board with a vote regarding the construction and 

operation of the N-CORPE project. During the construction 

and operation of the N-CORPE project, neither the Middle 

Republican NRD nor the Twin Platte NRD required N-CORPE 

to obtain a permit from these individual NRD’s. We determine 

that by voting in favor of the N-CORPE project, the Middle 

Republican NRD and the Twin Platte NRD have concluded 

that the N-CORPE project is in compliance with their rules 

and regulations and have waived the necessity of individual 

permits, if otherwise required.

Because we determine that N-CORPE was not required to 

obtain the permits specified by Estermann, we find no merit to 

this assignment of error.
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The District Court’s Ruling That the 

County Court Had Jurisdiction Over 

N-CORPE’s Amended Petition 

to Condemn Was Not Error.

Estermann claims that the district court erred when it 

failed to rule that the county court for Lincoln County in case 

No. CI 14-496 did not have jurisdiction over N-CORPE’s 

amended petition to condemn because N-CORPE failed to 

comply with § 76-704.01 by failing to obtain certain permits 

and approvals. Even assuming that the district court could 

properly entertain this issue collaterally challenging the jurisdiction of the county court in the condemnation case, given 

our resolution of the permits issue, this assignment of error 

would be unavailing.

The District Court Did Not Err When It 

Denied Estermann’s Motion to Amend 

His Complaint for Injunction.

Estermann claims that the district court erred when it denied 

his motion to amend his complaint for injunction. We find no 

merit to this assignment of error.

We first address the proper standard of review regarding 

a district court’s denial of a motion to amend the pleadings. 

We note that this court has previously stated that we review a 

district court’s decision on a motion for leave to amend a complaint for an abuse of discretion. See Gonzalez v. Union Pacific 

RR. Co., 282 Neb. 47, 803 N.W.2d 424 (2011). However, in 

Bailey v. First Nat. Bank of Chadron, 16 Neb. App. 153, 741 

N.W.2d 184 (2007), the Nebraska Court of Appeals addressed 

a case that was procedurally similar to the present case, and the 

considerations in Bailey and the instant case cause us to refine 

our standard of review.

In Bailey, the court assessed whether the district court had 

properly denied a request to amend a complaint after a motion 

for summary judgment had been filed but before the district 

court had ruled on the motion. With their motion to amend, 

the plaintiffs sought to add additional theories of recovery to 
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the theories set forth in the initial complaint. The district court 

denied the motion to amend, and the plaintiffs appealed.

The Court of Appeals in Bailey noted that prior to Bailey, 

the Nebraska appellate courts had not discussed the standard of review for denial of a motion to amend filed under 

Nebraska’s new rules for notice pleading, specifically, Neb. 

Ct. R. of Pldg. § 6-1115(a) (previously codified as Neb. Ct. R. 

of Pldg. in Civ. Actions 15(a) (rev. 2003)). Section 6-1115(a) 

provides:

A party may amend the party’s pleading once as a matter of course before a responsive pleading is served or, 

if the pleading is one to which no responsive pleading is 

permitted, the party may amend it within 30 days after 

it is served. Otherwise a party may amend the party’s 

pleading only by leave of court or by written consent of 

the adverse party, and leave shall be freely given when 

justice so requires. A party shall plead in response to an 

amended pleading within the time remaining for response 

to the original pleading or within 10 days after service of 

the amended pleading, whichever period may be longer, 

unless the court otherwise orders.

The Court of Appeals in Bailey acknowledged that 

Nebraska’s current notice pleading rules are modeled after the 

Federal Rules of Civil Procedure and that Nebraska courts may 

therefore look to federal decisions for guidance. See Kellogg 

v. Nebraska Dept. of Corr. Servs., 269 Neb. 40, 690 N.W.2d 

574 (2005). Similarly to Nebraska’s § 6-1115(a), Fed. R. Civ. 

P. 15(a)(2) provides that once a responsive pleading has been 

filed, “a party may amend its pleading only with the opposing 

party’s written consent or the court’s leave. The court should 

freely give leave when justice so requires.”

[13] With respect to the denial of leave to amend under the 

Federal Rules of Civil Procedure, it has been stated by a federal appellate court:

“Under the liberal amendment policy of Federal Rule of 

Civil Procedure 15(a), a district court’s denial of leave 

to amend pleadings is appropriate only in those limited 
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circumstances in which undue delay, bad faith on the 

part of the moving partly [sic], futility of the amendment, or unfair prejudice to the non-moving party can 

be demonstrated.”

Bailey v. First Nat. Bank of Chadron, 16 Neb. App. at 163, 741 

N.W.2d at 193, quoting Roberson v. Hayti Police Dept., 241 

F.3d 992 (8th Cir. 2001). We have similarly stated that “[a] district court’s denial of leave to amend pleadings is appropriate 

only in those limited circumstances in which undue delay, bad 

faith on the part of the moving party, futility of the amendment, 

or unfair prejudice to the nonmoving party can be demonstrated.” Golnick v. Callender, 290 Neb. 395, 400, 860 N.W.2d 

180, 187 (2015).

Federal courts generally review the denial of a motion to 

amend for an abuse of discretion. See, e.g., In re K-tel Intern., 

Inc. Securities Litigation, 300 F.3d 881 (8th Cir. 2002). This 

is consistent with that standard of review generally applied in 

review of such motions in Nebraska. See, Golnick v. Callender, 

supra; Gonzalez v. Union Pacific RR. Co., 282 Neb. 47, 803 

N.W.2d 424 (2011). However, in Bailey v. First Nat. Bank of 

Chadron, 16 Neb. App. 153, 741 N.W.2d 184 (2007), the Court 

of Appeals noted that the U.S. Court of Appeals for the Eighth 

Circuit reviews de novo the underlying legal conclusion of 

whether a proposed amendment would have been futile. The 

Bailey opinion stated:

Federal courts generally review the denial of a motion 

to amend for an abuse of discretion. See, In re K-tel 

Intern., Inc. Securities Litigation, 300 F.3d 881 (8th Cir. 

2002); 6 Charles Alan Wright et al., Federal Practice and 

Procedure § 1484 (2d ed. 1990). Federal case law from 

the Eighth Circuit indicates, however, that the Eighth 

Circuit reviews de novo the underlying legal conclusion 

of whether the proposed amendments to a complaint 

would have been futile. See, Marmo v. Tyson Fresh 

Meats, Inc., 457 F.3d 748 (8th Cir. 2006); U.S. ex rel. 

Joshi v. St. Luke’s Hosp., Inc., 441 F.3d 552 (8th Cir. 

2006) (citing U.S. ex rel. Gaurdineer & Comito, L.L.P. 
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v. Iowa, 269 F.3d 932 (8th Cir. 2001)), cert. denied 549 

U.S. 881, 127 S. Ct. 189, 166 L. Ed. 2d 142. See, also, 

Corsello v. Lincare, Inc., 428 F.3d 1008 (11th Cir. 2005) 

(underlying legal conclusion of whether particular amendment to complaint would have been futile is reviewed 

de novo); Miller v. Calhoun County, 408 F.3d 803 (6th 

Cir. 2005) (where district court draws legal conclusion 

that amendment would be futile, conclusion is reviewed 

de novo).

16 Neb. App. at 163-64, 741 N.W.2d at 193.

In Bailey, the Court of Appeals adopted the federal standards of review outlined above. In doing so, the Court of 

Appeals stated that “we review the district court’s denial of 

the [appellants’] motion to amend under Nebraska’s rule 15(a) 

[now codified as § 6-1115(a)] for an abuse of discretion. 

However, we review de novo any underlying legal conclusion 

that the proposed amendments would be futile.” Id. at 164, 741 

N.W.2d at 193.

Notably, since Bailey was decided, all the federal circuit courts have adopted the standard that an appellate court 

reviews de novo the underlying legal conclusion of whether the 

proposed amendments to a complaint would have been futile. 

See, e.g., Thomas v. Chevron U.S.A., Inc., 832 F.3d 586 (5th 

Cir. 2016); Maiden Creek Assocs. v. U.S. Dept. of Transp., 823 

F.3d 184 (3d Cir. 2016); Osborn v. Visa Inc., 797 F.3d 1057 

(D.C. Cir. 2015); Runnion v. Girl Scouts of Greater Chicago, 

786 F.3d 510 (7th Cir. 2015); Giorgio Foods, Inc. v. U.S., 785 

F.3d 595 (Fed. Cir. 2015); Barnes v. Harris, 783 F.3d 1185 

(10th Cir. 2015); U.S. ex rel. Ahumada v. NISH, 756 F.3d 268 

(4th Cir. 2014); Mills v. U.S. Bank, NA, 753 F.3d 47 (1st Cir. 

2014); Panther Partners v. Ikanos Communications, 681 F.3d 

114 (2d Cir. 2012); Carvalho v. Equifax Information Services, 

LLC, 629 F.3d 876 (9th Cir. 2010).

We agree with the Court of Appeals’ holding in Bailey, 

and we now hold that an appellate court generally reviews 

the denial of a motion to amend a complaint for an abuse of 

discretion; however, an appellate court reviews de novo an 
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underlying legal conclusion that the proposed amendments 

would be futile.

In Bailey v. First Nat. Bank of Chadron, 16 Neb. App. 153, 

741 N.W.2d 184 (2007), the Court of Appeals expressed the 

appropriate method to be used in assessing whether the proposed amendment should be denied on the basis of its futility. 

In Hayes v. County of Thayer, 21 Neb. App. 836, 842-43, 844 

N.W.2d 347, 353-54 (2014), the Court of Appeals described 

Bailey as follows:

In Bailey, supra, we quoted Hatch [v. Department for 

Children, Youth & Families, 274 F.3d 12 (1st Cir. 2001)], 

in which the First Circuit expressed that if leave to amend 

is not sought until after discovery is closed and a motion 

for summary judgment has been docketed, the proposed 

amendment must be not only theoretically viable but 

also solidly grounded in the record and supported by 

substantial evidence. We also quoted the Second Circuit’s 

expression [in Milanese v. Rust-Oleum Corp., 244 F.3d 

104 (2d Cir. 2001),] that in such a situation, the proposed 

amendment may be considered futile when the evidence 

in support of the proposed new claim creates no triable 

issue of fact and would not survive a motion for summary judgment.

Based on its analysis of the standards set forth by the First 

and Second Circuits, the Court of Appeals ably concluded 

in Bailey:

We find the explanations and rationale used and 

applied by the First and Second Circuits to be sound and 

hold that if leave to amend is sought under Nebraska’s 

rule 15(a) before discovery is complete and before a 

motion for summary judgment has been filed, the question of whether such amendment would be futile is judged 

by reference to Neb. Ct. R. of Pldg. in Civ. Actions 

12(b)(6) (rev. 2003) [now codified as Neb. Ct. R. of Pldg. 

6-1112(b)(6)]. Leave to amend in such circumstances 

should be denied as futile only if the proposed amendment cannot withstand a rule 12(b)(6) motion to dismiss. 
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If, however, the rule 15(a) motion is made in response to 

a motion for summary judgment and the parties have presented all relevant evidence in support of their positions, 

then the amendment should be denied as futile only when 

the evidence in support of the proposed amendment creates no triable issue of fact and the opposing party would 

be entitled to judgment as a matter of law.

16 Neb. App. at 169, 741 N.W.2d at 196-97.

[14] In Hayes, the Court of Appeals stated that “[b]oth the 

notion that ‘substantial evidence’ must be presented and the 

notion that the evidence must be such as would create a ‘triable issue of fact’ that could survive summary judgment are 

expressions of the same standard.” 21 Neb. App. at 843, 844 

N.W.2d at 354. In Hayes, the plaintiffs had filed a motion to 

amend the complaint after discovery had been closed and the 

defendant had filed a motion for summary judgment, and in 

fact, the district court had already sustained the defendant’s 

motion for summary judgment and entered judgment in favor 

of the defendant. Based upon the reasoning set forth in Bailey, 

the Court of Appeals stated in Hayes that “the appropriate standard for assessing whether [the plaintiffs’] motion to 

amend should be determined futile is that the proposed amendment must be not only theoretically viable but also solidly 

grounded in the record and supported by substantial evidence 

sufficient to give rise to a triable issue of fact.” Id. at 844, 844 

N.W.2d at 354.

In the present case, we apply this standard set forth above 

to assess Estermann’s claim that the district court erred when 

it denied his motion to amend the complaint. Estermann filed 

his motion to amend the complaint after discovery had been 

completed and after N-CORPE had filed its motion for summary judgment. In his appellate brief, Estermann states that 

although he alleged in his original complaint that N-CORPE 

failed to obtain necessary approval from Kansas, he did not 

allege in his original complaint that N-CORPE was required 

to obtain approval specifically from RRCA. Estermann sought 

to include the specific allegation that N-CORPE failed to 
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obtain approval from RRCA in his proposed amended complaint. In denying Estermann’s motion for leave to amend his 

complaint, the district court stated that any issues raised in 

the proposed amended complaint could “be dealt with under 

the original complaint,” and “[a]s such, the amendment is 

futile . . . .”

As stated above, Nebraska, Kansas, Colorado, and the 

United States of America are parties to the Compact, and the 

Republican River Basin has been the subject of the Compact 

since 1943. The Compact allocates to each of the states an 

agreed-upon share of the water supply within the Republican 

River Basin—roughly 49 percent to Nebraska, 40 percent to 

Kansas, and 11 percent to Colorado. Pursuant to the Compact, 

the States created the RRCA to calculate the Republican River 

Basin’s annual virgin water supply and to determine whether 

each State’s use of that water is within its allocation under the 

Compact. See Kansas v. Nebraska, ___ U.S. ___, 135 S. Ct. 

1042, 191 L. Ed. 2d 1 (2015).

In 2002, the Compact was modified via the FSS, which was 

approved by the U.S. Supreme Court in Kansas v. Nebraska, 

supra. The Court stated that the FSS “established detailed 

mechanisms to promote compliance with the Compact’s terms.” 

135 S. Ct. at 1050. The FSS “aim[s] to accurately measure the 

supply and use of the Basin’s water, and to assist the States in 

staying within their prescribed limits.” Id. This is done through 

detailed accounting procedures and the utilization of a ground 

water model that are set forth in the FSS.

In support of his argument, Estermann points to section 

III.B.1.k. of the FSS, which states that a moratorium on new 

wells shall not apply to:

Wells acquired or constructed by a State for the sole 

purpose of offsetting stream depletions in order to comply with its Compact Allocations. Provided that, such 

Wells shall not cause any new net depletion to stream 

flow either annually or long-term. The determination of 

net depletions from these Wells will be computed by the 

RRCA Groundwater Model and included in the State’s 
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Computed Beneficial Consumptive Use. Augmentation 

plans and related accounting procedures submitted under 

this Subsection III.B.1.k. shall be approved by the RRCA 

prior to implementation.

(Emphasis supplied.) Estermann asserts that the N-CORPE 

project is such an “augmentation plan” that requires approval 

by the RRCA prior to the N-CORPE project’s implementation. 

Brief for appellant at 37.

We disagree that this or any other section of the FSS 

requires N-CORPE to obtain the RRCA’s approval prior to the 

construction or operation of the N-CORPE project. This section of the FSS refers to the fact that the RRCA must approve 

augmentation plans and related changes to the RRCA accounting procedure before a State may receive augmentation credit. 

The term “augmentation plan” does not refer to the actual 

construction or operation of the project itself, but, rather, an 

augmentation plan under the FSS sets forth the methods for 

how to calculate the augmentation credit the State wishes 

to receive that will be taken into account when considering 

whether the State has complied with its allocated percentage of 

use of the virgin water supply in the Republican Riven Basin 

under the Compact. An augmentation plan does not require 

that the RRCA approve the actual construction or operation of 

such project.

Our reading of the FSS is consistent with the record. The 

primary author of the N-CORPE augmentation plan explained 

that the DNR developed the N-CORPE augmentation plan 

“consistent with the straightforward methodologies of the 

RRCA Accounting Procedures and Reporting Requirements.” 

He further explained that the N-CORPE augmentation plan 

“provides an example of the accounting method that would 

be used to quantify the [augmented water supply] Credit.” 

Thus, although RRCA approval would be necessary to approve 

the N-CORPE augmentation plan and the related accounting procedures in order to receive an augmentation credit, 

the FFS does not require RRCA approval for the physical 

construction and operation of the N-CORPE project. Stated 
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another way, to the extent the State wishes to alter the amount 

of credit it receives for augmentation water under the FSS 

accounting procedures, it would need to obtain approval from 

the RRCA, but the RRCA’s approval is not a prerequisite 

to N-CORPE’s physically implementing the project itself 

or its operation. Therefore, N-CORPE was not required to 

obtain the approval of the RRCA before implementing the 

N-CORPE project.

Because we determine that N-CORPE was not required to 

obtain the approval of the RRCA in order to implement the 

augmentation plan, Estermann’s proposed amendment to his 

complaint is not theoretically viable and it is not supported by 

substantial evidence sufficient to give rise to a triable issue of 

fact. See Hayes v. County of Thayer, 21 Neb. App. 836, 844 

N.W.2d 347 (2014). Therefore, upon our de novo review, we 

determine the district court did not err when it determined 

that Estermann’s proposed amendment was futile and denied 

his motion to amend his complaint. We find no merit to this 

assignment of error.

District Court Did Not Err When It Determined 

That Common Law Does Not Prohibit 

N-CORPE From Removing Ground 

Water From Overlying Land.

Estermann claims that the district court erred when it 

determined that Nebraska common law does not prohibit 

N-CORPE from removing ground water from the overlying 

land. We find no merit to this assignment of error.

As an initial matter, we clarify that Estermann does not 

claim that he has an interest in ground water that is being 

adversely impacted by the fact that N-CORPE is withdrawing 

ground water from a well field and releasing that water into 

Medicine Creek to augment the flow of the water. Compare 

In re Referral of Lower Platte South NRD, 261 Neb. 90, 

621 N.W.2d 299 (2001) (concerning landowner’s objection 

to withdrawal and transfer of ground water from his property, where ground water was being transferred away from 
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overlying land to neighbor’s property, and landowner argued 

there was significant adverse effect upon him).

[15] We have previously stated that Nebraska’s common law 

does not allow water to be transferred off overlying land. See 

In re Referral of Lower Platte South NRD, supra. However, we 

have made it clear that the Legislature may provide exceptions 

to this common-law rule. See id. We have stated:

“Since the Nebraska common law of ground water permitted use of the water only on the overlying land, legislative action was necessary to allow for transfers off the 

overlying land, even for as pressing a need as supplying 

urban water users.

“. . . [T]he Legislature has the power to determine public policy with regard to ground water and . . . 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.”

In re Referral of Lower Platte South NRD, 261 Neb. at 94, 621 

N.W.2d at 303, quoting State ex rel. Douglas v. Sporhase, 208 

Neb. 703, 305 N.W.2d 614 (1981), reversed on other grounds

458 U.S. 941, 102 S. Ct. 3456, 73 L. Ed. 2d 1254 (1982).

With the general rule that the Legislature may provide 

exceptions to the common-law prohibition of the transfer of 

ground water off the overlying land in mind, we turn to the 

present case. In this regard, we note that Neb. Rev. Stat. 

§ 2-3238 (Reissue 2012), provides that each NRD

shall have the power and authority to develop, store 

and transport water, and to provide, contract for, and 

furnish water service for domestic purposes, irrigation, 

milling manufacturing, mining, metallurgical, and any 

and all other beneficial uses, and to fix the terms and 

rates therefor. Each district may acquire, construct, operate, and maintain dams, reservoirs, ground water storage 

areas, canals, conduits, pipelines, tunnels, and any and all 

works, facilities, improvements, and property necessary 

therefor. No district shall contract for delivery of water 

for irrigation uses within any area served by any irrigation 
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district, public power and irrigation district, or reclamation district, except by consent of and written agreement 

with such irrigation district, public power and irrigation 

district, or reclamation district.

Neb. Rev. Stat. § 46-715 (Cum. Supp. 2016) provides that an 

NRD may create an integrated management plan in order to 

manage a river basin, subbasin, or reach. N-CORPE is such 

an integrated management plan, and one of its purposes is to 

augment the flow of Medicine Creek in order to manage the 

water level in the Republic River Basin. N-CORPE does so by 

withdrawing ground water from a well field in Nebraska and 

releasing the water into Medicine Creek to augment the flow. 

The Legislature has specifically authorized NRD’s to utilize 

augmentation projects as part of an integrated management 

plan. See § 46-715(3)(e).

Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should 

be conjunctively considered and construed to determine the 

intent of the Legislature, so that different provisions are consistent, harmonious, and sensible. In re Interest of Tyrone K., 

295 Neb. 193, 887 N.W.2d 489 (2016). Reading these statutes 

in pari materia, we determine that NRD’s have the power 

and authority to transport water and that they may do so by 

utilizing an augmentation project as part of an integrated 

management plan. Therefore, the district court did not err 

when it determined that N-CORPE is not prohibited by common law from utilizing ground water to augment the flow of 

Medicine Creek.

No Issue of Material Fact Exists as to 

Whether N-CORPE’s Condemnation 

Meets a Public Purpose.

Estermann claims that the district court erred when it failed 

to find that there were issues of material fact regarding whether 

N-CORPE’s condemnation action was for a public use. He contends that these issues preclude entry of summary judgment. 

We find no merit to this assignment of error.
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It is well settled that it is essential that property taken 

under the power of eminent domain be for a public use and 

not a private one. Burlington Northern Santa Fe Ry. Co. v. 

Chaulk, 262 Neb. 235, 631 N.W.2d 131 (2001). In support 

of his argument that N-CORPE’s easement is not for a public 

use, Estermann relies on Burger v. City of Beatrice, 181 Neb. 

213, 147 N.W.2d 784 (1967). Estermann’s reliance on Burger

is misplaced.

In Burger, the landowners sought to enjoin a city from 

proceeding in eminent domain to obtain easements over their 

property to install wells and withdraw ground water beneath 

the surface of their lands. This court determined that the withdrawal of the ground water was largely for the private use of 

two private companies. We noted that although the benefit of 

the easements to the companies may furnish some employment 

and increase business in the area, “such a public interest does 

not constitute a public purpose under the power of eminent 

domain.” Id. at 223, 147 N.W.2d at 791. Accordingly, this court 

determined that the purpose of the easements was for a private 

use, not a public use, and that therefore, it was not proper 

under eminent domain.

Estermann argues that just as in Burger, the easement 

sought by N-CORPE is for private use, not public use, because 

the N-CORPE project’s purpose is to help private irrigators. 

However, at the hearing on the motion for summary judgment, the district court received evidence which described in 

detail how N-CORPE’s project would be operated and what 

the purpose of the project was. The purpose was to augment 

flows of Medicine Creek to offset surface water depletions 

through the Republican River Basin in order to achieve the target flows identified in the Compact. The evidence shows that 

the overriding purpose of the N-CORPE project is to achieve 

compliance with the Compact; any use by private irrigators 

is incidental to this purpose. Further, the evidence indicates 

that the State’s “[f]ailure to comply with the . . . Compact can 

expose the State of Nebraska to significant liability.” Unlike 

in Burger, where the easements sought were for a private 
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use, even viewing the evidence in a light most favorable to 

Estermann, the purpose of the easement sought by N-CORPE 

is for a public use. Therefore, we determine that the district 

court did not err when it determined that N-CORPE’s condemnation action is for a public use.

CONCLUSION

As explained above, we determine generally that the district 

court did not err when it granted the appellees’ motion for 

summary judgment. Among our determinations are the following: that N-CORPE had the authority to exercise the power of 

eminent domain, that N-CORPE did not need certain permits 

and approvals as alleged by Estermann, that the district court 

did not abuse its discretion when it denied Estermann’s motion 

to amend the complaint, that N-CORPE is not prohibited 

by common law from removing ground water from overlying land, and that there is no material issue of fact regarding whether the condemnation is for a public use. Therefore, 

we affirm the decision of the district court which granted 

the appellees’ motion for summary judgment and dismissed 

Estermann’s complaint.

Affirmed.