Nebraska: OK To Delegate Eminent Domain Power From Natural Resource Districts To Join Agency

Under Nebraska law, Natural Resource Districts possess the power of eminent domain, delegated to them by the state legislature. The question in Estermann v. Bose, No. S-15-1022 (Apr. 7, 2017) was whether four of those NRD's could, in turn, re-delegate that power to a new agency which they jointly formed under the Interlocal Cooperation Act, a Nebraska statute which allows such things.

This new agency -- the only-could-be-named-by-government "N-CORPE" (Nebraska Cooperative Republican Platte Enhancement) -- was formed to regulate and manage water to comply with the Republican River Compact. Part of its duties included a "stream flow augmentation project" to manage ground and surface water, a portion of which required it to institute condemnation proceedings to take a portion of Estermann's land for a flowage easement.

In a separate lawsuit, Estermann sued, seeking an injunction prohibiting the taking because N-CORPE did not possess the power of eminent domain. His lawsuit also asserted arguments that looked a lot like defenses to an eminent domain action. The trial court ruled in favor of N-CORPE, and Estermann appealed.

The Nebraska Supreme Court affirmed. The court rejected the argument that the Legislature's failure to specifically delegate eminent domain power to interlocal agencies meant that they could not exercise the power. Each of the districts which formed N-CORPE unquestionably had eminent domain authority, and the ICA statute allows these agencies to exercise their powers alone or jointly. Slip op. at 242 ("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."). Forming the joint authority didn't deprive any of the constituent agencies of their eminent domain power. 

The court also disposed of the property owner's other claims, concluding that the trial court properly denied a motion to amend the complaint (to do so would be futile). If you might be interested in those claims and details, the court's 47-page, single spaced opinion is waiting for your review. 

More on the decision here ("Nebraska Supreme Court rules in favor of river augmentation project") from the Kearny, Nebraska newspaper. 

Estermann v. Bose, No. S-15-1022 (Neb. Apr. 7, 2017)

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