Western Waterfight III: Spear T v. Neb. DNR

Spear T Ranch v. Nebraska Dept. of Nat. Resources, S-04-639, 270 Neb. 130 7-8-05 In the 3rd installment of the various Spear T Ranch waterfights (against ground water appropriators Knaub, Central Public Power District's complaint, and against the Department of Natural Resources) the Supreme Court holds that the suface water user Spear T may not sue the Nebraska Department of Natural Resources for failing to prevent ground water users from taking its water. The Court holds that Spear T has neither conventional tort claims under the State Tort Claims Act,Neb. Rev. Stat. § 81-8,209 et seq. (Reissue 2003) nor inverse condmenation claims under the State and Federal Constitutions Neb. Const. art. I, § 21 and 5th Amendment, US Constitution """We conclude that the Department has no common-law or statutory duty to regulate the use of ground water in order to protect Spear T’s surface water appropriations. See In re Complaint of Central Neb. Pub. Power, supra (holding that Department had no independent authority to regulate ground water users or administer ground water rights for benefit of surface water appropriators). In the absence of independent authority to regulate the use of ground water, the Department has no legal duty to resolve conflicts between surface water appropriators and ground water users. If there is no legal duty, there is no actionable negligence. Fuhrman v. State, 265 Neb. 176, 655 N.W.2d 866 (2003). One cannot be negligent in failing to perform an act which it did not in the first instance have a duty or obligation to perform. Travelers Indemnity Co. v. Center Bank, 202 Neb. 294, 275 N.W.2d 73 (1979).. Further Because Spear T had no property that was damaged or taken by the Department, Spear T could not assert a cause of action for inverse condemnation. It was not error for the district court to dismiss Spear T’s cause of action for inverse condemnation.""