United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 10-2441

___________

Gerard J. Keating, individually and on *

behalf of all persons similarly situated; *

Janet A. Keating, individually and on *

behalf of all persons similarly situated, *

*

Plaintiffs-Appellants, *

*

Frank R. Krejci, individually and on * Appeal from the United States

behalf of all persons similarly situated; * District Court for the

Jane Krejci, individually and on * District of Nebraska.

behalf of all persons similarly situated; *

Timothy Peterson, individually and on *

behalf of all persons similarly situated; *

Linda Peterson, individually and on *

behalf of all persons similarly situated, *

*

Plaintiffs, *

*

Daryl Butterfield, individually and on *

behalf of all persons similarly situated; *

Makala Butterfield, individually and on *

behalf of all persons similarly situated, *

*

Plaintiff-Appellants, *

*

v. *

*

Nebraska Public Power District, *

in their official capacities; *

Nebraska Department of Natural *

Resources, in their official capacities; *
Dennis L. Rasmussen, in their official *

capacities; Mary A. Harding, in their *

official capacities; Ronald W. Larsen, *

in their official capacities; Larry A. *

Linstrom, in their official capacities; *

Darrell J. Nelson, in their official *

capacities; Edward J. Schrock, in their *

official capacities; Ken L. Schmieding, *

in their official capacities; Gary G. *

Thompson, in their official capacities; *

Larry G. Kuncl, in their official *

capacities; Virgil L. Froehlich, in their *

official capacities; Wayne E. Boyd, in *

their official capacities; Ann Saloman *

Bleed, in their official capacities; *

Brian Dunnigan, in their official *

capacities; Does, 1-100, *

*

Defendants-Appellees. *

*

------------------------------- *

*

State of Colorado, State of Montana; *

State of Nevada; State of New Mexico; *

State of North Dakota; State of *

Wyoming; State of South Dakota, *

*

Amici on Behalf of *

Appellees. *

___________

Submitted: March 17, 2011

Filed: November 7, 2011

___________

Before SMITH, BRIGHT, and SHEPHERD, Circuit Judges.

___________

-2-
SHEPHERD, Circuit Judge.

Several Nebraska farmers filed suit under 42 U.S.C. § 1983, alleging their due

process rights were violated when Nebraska officials ordered the farmers to cease

drawing water from the Niobrara Watershed without providing a predeprivation

hearing. We reversed the district court’s prior dismissal and remanded the matter to

the court with specific instructions. On remand, the district court determined that 1

there was no deprivation of a property right and entered summary judgment in favor

of appellees. The district court also declined to exercise jurisdiction over pendent

state law claims, dismissing those claims without prejudice. We agree with the

district court’s determination and affirm its thorough and well-reasoned decision. 

I.

A more extensive explanation of the factual background of this case is

available in our prior opinion, see Keating v. Neb. Pub. Power Dist., 562 F.3d 923,

925-926 (8thCir. 2009), thus we will provide only an abbreviated factual background

here. Due to a decrease in water levels in the Niobrara Watershed, in 2006 the

Nebraska Public Power District (NPPD) requested that the Nebraska Department of

Natural Resources (DNR) issue Closing Noticesto hundreds of farmers and ranchers

who held surface water appropriation permits that were junior to those permits held

by NPPD. In the summer of 2007, the DNR issued such Closing Notices to junior

permit holders without providing them notice or a hearing prior to the issuance of the

Closing Notices. The appellants filed suit, arguing that the Closing Notices effected

a property deprivation, and accordingly they were entitled to the procedural due

process protections of a predeprivation hearing. The district court dismissed the suit,

holding that the claim was not ripe and that appellants had not exhausted

administrative remedies prior to filing the complaint. 

The Honorable Lyle E. Strom, United States District Judge for the District of 1

Nebraska. 

-3-
We reversed the district court’s dismissal and remanded the matter to the

district court. We directed the district court on remand to determine (1) whether a

deprivation of a property right had occurred, (2) if a deprivation had occurred,

whether the deprivation was subject to an exception to the requirement that a

predeprivation process be provided, and (3) if the deprivation was not subject to such

an exception, whether the DNR’s declaratory order procedures were constitutionally

adequate predeprivation procedures. Keating, 562 F.3d at 930. 

On remand, the district court directed the parties to file cross motions for

summary judgment and held a hearing on the motions. The court determined that

although the appellants held a property right that entitled them to use the surface

waters of the Niobrara River, that right was qualified and subject to the DNR’s

administration of the appropriation system. Also, the district court held that the

DNR’s administration of the system did not cause the appellants to suffer a

deprivation of their property rights. Accordingly, the district court granted summary

judgment in favor of the appellees. 

In this second appeal, the appellants argue they are entitled to a predeprivation

hearing prior to the DNR conducting its administration of the Niobrara Watershed

and issuing Closing Notices. Specifically, appellants seek a predeprivation hearing

to challenge the validity of the NPPD’s permits on the grounds that the NPPD was not

beneficially using its appropriation to produce power and to challenge the DNR’s

determination of water scarcity. 

II.

We review the district court’s grant ofsummary judgment de novo, viewing the

facts in the light most favorable to the nonmoving party. See Irving v. Dormire, 586

F.3d 645, 647 (8th Cir. 2009). We will affirm the grant of summary judgment if

-4-
“there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

Under the Fourteenth Amendment, “[n]o State shall . . . deprive any person of

. . . property, without due process of law . . . .” In addressing a procedural due

process question, a court must first determine whether state action has deprived an

individual of a protected property interest, and only after finding such a deprivation

doesthe court consider whether available proceduresfor challenging the deprivation

satisfy the requirements of due process. Logan v. Zimmerman Brush Co., 455 U.S.

422, 428 (1982). The Supreme Court “usually has held that the Constitution requires

some kind of hearing before the State deprives a person of liberty or property.” 

Zinermon v. Burch, 494 U.S. 113, 127 (1990). 

“‘To have a property interest in a benefit, a person clearly must have more than

an abstract need or desire’ and ‘more than a unilateral expectation of it. He must,

instead, have a legitimate claim of entitlement to it.’” Town of Castle Rock v.

Gonzales, 545 U.S. 748, 756 (2005) (quoting Bd. of Regents v. Roth, 408 U.S. 564,

577 (1972)). “Such entitlements are, ‘of course, . . . not created by the Constitution. 

Rather, they are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law.’” Id.

(quoting Paul v. Davis, 424 U.S. 693, 709 (1976)). 

The parties agree that a water permit entitling the holder to use surface water

within the capacity limits ofthe Niobrara Watershed represents a property right under

Nebraska law. See Loup River Pub. Power Dist. v. N. Loup River Power & Irr. Dist.,

5 N.W.2d 240, 247-48 (Neb. 1942) (“A right of appropriation, under our Constitution,

whether for irrigation or for power purposes, is a property right which is entitled to

the same protection as any other property right.”). That right, however, is not one of

ownership of the surface water prior to capture. Spear T Ranch, Inc. v. Knaub, 691

N.W.2d 116, 127 (Neb. 2005) (“A right to appropriate surface water however, is not

-5-
an ownership of property. Instead, the water is viewed as a public want and the

appropriation is a right to use the water.”). As the district court explained, the holder

of a surface water permit acquires the rights granted by the permit and is subject to

constraints articulated by the permit. Here, the appellants’ permits allow them to use

specific amounts ofsurface water so long asthere issufficient capacity, subject to the

rights ofsenior appropriators and subject to regulation by the State through the DNR. 

Appellants argue that when the DNR administers the Niobrara in a manner

which requires permit holdersto stop taking water, the state should conduct a hearing

to give permit holders who are being issued Closing Notices an opportunity to

challenge the DNR’s determination that there is a scarcity requiring administration

and to challenge the validity of any senior appropriator’s permit. We reject this

argument because when the DNR determines that the watershed no longer has the

capacity to supply all permit holders, appellants no longer have a legitimate claim of

entitlement to use the surface water and thus do not suffer a deprivation of a property

right. 

On the face of the permits, permit holders are warned that there are periods of

time when water supply on the Niobrara River is insufficient to meet the demands of

all appropriators and that permit holders are “hereby given notice that [they] may be

denied the use of water during times of scarcity.” Under Nebraska law, the DNR is

charged with administering the prior appropriation system,which necessarilyrequires

the DNR to determine the capacity limits of a given stream and to determine what

restrictions must be imposed to enforce the appropriation system. Neb. Rev. Stat.

§ 61-206(1) (“The Department of Natural Resources is given jurisdiction over all

matters pertaining to water rights for irrigation, power, or other useful purposes

except as such jurisdiction is specifically limited by statute.”). The property right

held by appellantsis expressly conditioned on the DNR’s determination of watershed

capacity, and therefore appellants have no legitimate claim to the water when the

DNR determines that there is a scarcity and that the issuance of Closing Notices is

-6-
necessary to satisfy the needs of senior appropriators. See Idaho Dep’t of Water Res.

Amended Final Order Creating Water Dist. No. 170, 220 P.3d 318, 331-32 (Idaho

2009) (“A water user has no property interest in being free from the State’s regulation

of water distribution in accordance with the prior appropriation doctrine . . . .”). 

Because the issuance of Closing Notices does not impact the property right bestowed

by the permit to use the surface water when there issufficient capacity, the appellants

are not deprived of that property right. We agree with the district court that

appellants have not suffered a deprivation of their property rights by the DNR’s

actions, thus we do not address the remainder of appellants’ arguments pertaining to

their due process claims. 

Finally, the district court was permitted to dismiss without prejudice the

pendent state-law ultra vires claim in light of its grant of summary judgment on the

section 1983 claim. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7

(1988)(“[I]n the usual case in which all federal-law claims are eliminated before trial,

the balance of factors to be considered under the pendent jurisdiction

doctrine–judicial economy, convenience, fairness, and comity–will point toward

declining to exercise jurisdiction over the remaining state-law claims.”); Gibson v.

Weber, 431 F.3d 339, 342 (8th Cir. 2005) (“Congress unambiguously gave district

courts discretion in 28 U.S.C. § 1367(c) to dismiss supplemental state law claims

when all federal claims have been dismissed.”). 

III.

Accordingly, we affirm.

______________________________

-7-