Court hands NRD victory on dams
Source: Omaha World-Herald, by Paul Hammel
June 22, 2007
LINCOLN — Washington County opponents of a series of dams proposed by the Papio-Missouri River Natural Resources District were dealt a setback today by the Nebraska Supreme Court.
The court ruled that the NRD had authority to work with private developers in building two dams near 72nd Street and Highway 370 for the Shadow Lake residential development and Shadow Lake Towne Center shopping mall.
The ruling turned back an appeal by five Washington County landowners, including William Japp, president of a group fighting larger dams proposed in that county.
Japp, who heads the Papio Valley Preservation Association, also is among 10 landowners who sued over a 58-acre lake built to accompany a planned "signature" Omaha city park at 192nd Street and West Dodge Road.
Due to today's ruling, a motion will now be filed to dismiss that lawsuit, which is still pending in Douglas County District Court, said John Winkler, manager of the Papio NRD.
"We believe it's the same subject matter," said Winkler.
He added that today's high court ruling should give his board more "comfort" when contemplating agreements with private developers.
The lawsuit against the two Shadow Lake dams was filed after the NRD, in May 2005, voted to spend $3.3 million in an agreement with developers.
The money paid all of the design and construction costs for the 750-foot-long Midlands Lake Dam, and 75 percent of costs for the 2,500-foot-long Shadow Lake Dam. The private developers paid the rest and provided the land for the two lakes, which cover 12 acres and 34 acres, respectively.
The landowners' lawsuit maintained that the NRD's deal was unconstitutional, violating a clause prohibiting "the credit of the state" to be given or lent to aid a private corporation.
The landowners also claimed the NRD had no authority under state law to contract with private developers.
The court, in affirming an earlier ruling by Sarpy County District Judge George Thompson, rejected both arguments.
It said the NRD may contract with private parties to achieve its goals, which include preventing floods and erosion by building dams.
The court also ruled that state money was not lent or given to the Shadow Lake entities. The NRD merely "expend(ed) funds" to carry out its obligations under state law.
"Reasonable minds may disagree whether it is good policy for NRDs to contract with private developers," the ruling stated. "That decision, however, is for the (state) Legislature."
The NRD envisions up to 29 dams, but it is unclear how many will be built, Winkler said.
One of the largest dams, in Washington County, would flood land owned by Japp and some of the other landowners.
An attorney for the landowner, Jocelyn Walsh of Lincoln, declined to comment on the ruling.
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