Petre, Benjamin M.

English

University of Denver

Water Law Review Volume 7 Issue 2 Article 63 1-1-2004 Dep't of Natural Res. v. Silverstone & Drakes Canal Inc., 674 N.W.2d 266 (Neb. 2004) Benjamin M. Petre Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Benjamin M. Petre, Court Report, Dep't of Natural Res. v. Silverstone & Drakes Canal Inc., 674 N.W.2d 266 (Neb. 2004), 7 U. Denv. Water L. Rev. 520 (2004). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WATER LA W REVIEWDep't of Natural Res. v. Silverstone & Drakes Canal Inc., 674 N.W.2d266 (Neb. 2004) (holding that the notice of hearing to cancel waterappropriations for nonuse was adequate, and that the evidence wassufficient to support the findings of the Department of NaturalResources).The Department of Natural Resources ("DNR") entered an orderon May 20, 2003, partially canceling the water rights on land owned bySilverstone and Dakes Canal Inc., Vance Dake, and Marcia Uehling("Silverstone"). Silverstone appealed DNR's order to the SupremeCourt of Nebraska, which affirmed DNR's order.Water appropriation number A-5000 ("appropriation") was a waterright to divert 0.57 cubic feet per second ("cfs") of water from theSappa Creek at certain points for irrigation of 62.6 acres of land inHarlan County, Nebraska. Silverstone was the owner of the landcovered by the appropriation, which had a priority date of July 30,1952. On January 31, 2003, the DNR sent a notice to Silverstonestating that a hearing would take place to determine whether to cancelall or part of appropriation as a result of nonuse for more than threeconsecutive years.DNR held the hearing on March 18, 2003. At the hearing, DNRpresented a verified field investigation report regarding the irrigationof the land covered by the appropriation. Based on the report and thetestimony of witnesses, DNR concluded that part of the landdesignated under the appropriation was not subject to irrigation formore than three consecutive years, thus cancellation of that part of theappropriation was therefore proper. DNR issued an order ofcancellation in part on May 20, 2003.Silverstone appealed DNR's order partially canceling the waterrights of Silverstone and other landowners. In doing so, Silverstonemade a few key arguments. The court first addressed Silverstone'sarguments regarding the adequacy of the notice. Silverstone arguedthat the notice did not properly state the issues involved and that thenotice failed to indicate properly the important phone numbers. Thecourt held that the notice adequately informed Silverstone of theissues because it clearly stated the purpose of the hearing and the factthat interested persons should appear. The court also noted that thenotice contained copies of relevant statutes. The court also rejectedSilverstone's argument regarding the notice's statement of phonenumbers, finding that the provision of the phone number wassufficient under the state statute.The court then proceeded to Silverstone's arguments regardingDNR's findings. On this issue, Silverstone asserted that DNR erred infinding that irrigation did not occur on the canceled portion of theland for more than three consecutive years and, in the alternative,argued that DNR erred in not finding sufficient cause for nonuse. Atthe onset of its discussion of these issues, the court noted the limits oncourt's ability to review the director's factual determinations.Volume 7COURT REPORTSSpecifically, the court stated it could only decide whether competentand relevant evidence supported such determinations, and whetherthe determinations were arbitrary, capricious, or unreasonable. In thiscase, the court held that both determinations were supported bysufficient evidence and were not arbitrary, capricious, orunreasonable. Consequently, the court rejected both arguments.In conclusion, the court rejected all of Silverstone's arguments andaffirmed DNR's order.Benjamin M. PetreNEW JERSEYIn re Adopted Amendments to N.J. Admin. Code tit. 7, § 7A-2.4, 365N.J. Super. 255 (N.J. Super. Ct. App. Div. 2003) (holding that NewJersey Department of Environmental Protection's adoption of theLandscape Project method to classify wetlands was neither inconsistentwith governing statue, unsupported by the record, nor arbitrary orcapricious).New Jersey Builders Association ("Builders") challenged as ultravires the New Jersey Department of Environmental Protection's("DEP") adoption of the Landscape Project method ("LPM") toclassify wetlands. In 2002, DEP adopted the LPM to classify wetlandssupporting the habitats of threatened or endangered species aswetlands of exceptional resource value. Prior to the adoption of LPM,DEP made wetlands determinations entirely on specific sightings ofindividual threatened or endangered species. Based on theassumption that species are located in the middle of their home range,DEP mapped a habitat for that species regardless of whether the entiremapped area contained features that the species actually used orrequired. LPM broadened the field of inquiry beyond "sighting-specific" areas. Using satellite imagery, LPM focuses on habitat areasrequired to support local populations of threatened or endangeredwildlife species. By adopting LPM, DEP sought to establish a morepopulation driven parameter of habitat protection that would bestensure the continued, long-term existence of a particular documentedspecies or population in an identified wetland. Builders appealedDEP's decision to adopt the LPM in Superior Court of New Jersey,Appellate Division claiming LPM exceeded DEP's statutory mandate.The court stated that judicial review of state agency regulations isrestricted to three inquiries: (1) whether the agency's action violatedthe enabling act's express or implied legislative policies, (2) whetherthere was substantial evidence in the record to support the findings onwhich the agency based their action, and (3) whether in applying thelegislative policies to the facts the agency clearly erred by reaching aconclusion that could not reasonably have been made upon a showingIssue 2

Dep\u27t of Natural Res. v. Silverstone & Drakes Canal Inc., 674 N.W.2d 266 (Neb. 2004)

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Dep\u27t of Natural Res. v. Silverstone & Drakes Canal Inc., 674 N.W.2d 266 (Neb. 2004)

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