61-207. Chief Water Officer; decisions; appeal; time; procedure.

672 words·~3 min read·/ne/chapter-61/61-207

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

If any county, party, or parties interested in irrigation or water power work affected thereby are dissatisfied with the decision or with any order adopted by the Chief Water Officer, such dissatisfied county, party, or parties may appeal to the Court of Appeals to reverse, vacate, or modify the order complained of. The procedure to obtain such reversal, modification, or vacation of any such decision or order upon which a hearing has been had before the Chief Water Officer shall be governed by the same provisions in force with reference to appeals and error proceedings from the district court.

The evidence presented before the Chief Water Officer as reported by the Chief Water Officer's official stenographer and reduced to writing, together with a transcript of the record and pleadings upon which the decision is based, duly certified in such case under the seal of the Department of Water, Energy, and Environment, shall constitute the complete record and the evidence upon which the case shall be presented to the appellate court. The time for perfecting such appeal shall be limited to thirty days after the rendition of such decision or order, and the appellate court shall advance such appeal to the head of its docket.

A motion to reconsider filed with an administrative agency will not toll the statutory time for seeking judicial review. City of Lincoln v. Twin Platte NRD, 250 Neb. 452, 551 N.W.2d 6 (1996).

Regarding the granting of water diversion applications, the court's standard of review is to

(1)search for errors appearing in the record;

(2)determine whether the judgment conforms to law and whether it is supported by competent and relevant evidence; and

(3)determine whether the director's action was arbitrary, capricious, or unreasonable. In re Applications A-15145, A-15146, A-15147, and A-15148, 230 Neb. 580, 433 N.W.2d 161 (1988).

The proper standard of review for the Supreme Court to follow in cases involving appeals from the Department of Water Resources under the provisions of this section is to search only for errors appearing in the record; i.e., does the judgment conform to law, is it supported by competent and relevant evidence, and was the action neither arbitrary, capricious, nor unreasonable? To the extent that In re Applications A-15995 and A-16006, 223 Neb. 430, 390 N.W.2d 506 (1986), holds to the contrary, it is overruled. In re Application A-15738, 226 Neb. 146, 410 N.W.2d 101 (1987).

Under former law, appeal lies from final order of Department of Water Resources directly to Supreme Court. Ainsworth Irr. Dist. v. Harms, 170 Neb. 228, 102 N.W.2d 429 (1960).

Evidence not offered at hearing has no place in bill of exceptions. State v. Birdwood Irr. Dist., 154 Neb. 52, 46 N.W.2d 884 (1951).

Under former law, the Department of Roads and Irrigation was neither a necessary nor a proper party to a proceeding on appeal to secure a reversal, modification, or vacation of an order made and entered by it. Cozad Ditch Co. v. Central Nebraska Public Power & Irr. Dist., 132 Neb. 547, 272 N.W. 560 (1937).

Under former law, appeal in proceedings before Department of Roads and Irrigation to cancel water right on ground of abandonment from decision refusing cancellation could be properly taken to district court instead of to Supreme Court. State v. Oliver Bros., 119 Neb. 302, 228 N.W. 864 (1930).

The proper standard of review for an appellate court to follow in cases involving appeals from the Department of Water Resources under this section is to search only for errors appearing on the record, i.e., to determine whether the judgment conforms to law, is supported by relevant evidence, and is not arbitrary, capricious, or unreasonable. In re Applications A-17004 et al., 1 Neb. App. 974, 512 N.W.2d 392 (1993).