The Undefeatable Opponent: How the Effective Administration of Water Is an Exception to Predeprivation Hearings Ordinarily Required by Due Process in Keating v. Neb. Pub. Power District, 660 F.3d 1014 (8th Cir. 2011)

Authors

Rachel M. Gerlach, University of Nebraska College of LawFollow

Abstract

“Whiskey is for drinking, water is for fighting over.”1 [1. Famously attributed to author Mark Twain, but never authenticated.] But what happens when the only opponent is the rightful owner? With closing notices in hand, Gerard Keating and his neighbors asked themselves that same question. The Nebraska Department of Natural Resources issued closing notices to Keating and many other appropriators in Holt County, Nebraska, when stream flow in the Niobrara Watershed had become insufficient to satisfy the water needs of all surrounding appropriators. Instead of taking advantage of the postdeprivation hearing offered by the Department of Natural Resources, Keating and the other appropriators filed suit, claiming that Nebraska’s established water administration system violated their due process rights. Ultimately, the Eighth Circuit Court of Appeals found no due process violation of the appropriators’ rights, simply because the appropriators do not have a property interest in the waters of the state, which includes the Niobrara Watershed.

To clarify the arguments discussed in Keating, this Note first provides an overview of Nebraska water administration, followed by a discussion of the property rights vested in public waters. This Note then analyzes the impracticality of predeprivation hearings for water administration, the state’s interest in quick administration of water use, and the challenge of providing sufficient due process while also preserving the water administration system.

This Note then provides an overview of Keating and related case law. Thereafter, there is a discussion of the United States Supreme Court decisions which have ruled that a predeprivation hearing is necessary, and why those situations are inapplicable to the administration of water use. This discussion also describes established exceptions to the predeprivation hearing requirement and how Nebraska’s appropriation system does not violate due process. Finally, this Note concludes with how Keating’s and other similarly situated plaintiffs’ challenges to the water administration system are a result of misplaced expectations in appropriation permits and the minimal property rights held therein.

Recommended Citation

Rachel M. Gerlach, The Undefeatable Opponent: How the Effective Administration of Water Is an Exception to Predeprivation Hearings Ordinarily Required by Due Process in Keating v. Neb. Pub. Power District, 660 F.3d 1014 (8th Cir. 2011), 91 Neb. L. Rev. (2013)
Available at: https://digitalcommons.unl.edu/nlr/vol91/iss3/6