Central Neb. Pub. Power Dist. v. North Platte NRD

The district court did not err in dismissing Doe’s breach of
contract claim.
VI. CONCLUSION
We conclude that the district court erred in dismissing Doe’s
lawsuit against the UNMC faculty members in their individual
capacities without determining whether service by certified
mail at UNMC’s risk management office was reasonably cal-
culated to notify the defendants, in their individual capacities,
of the lawsuit.
Regarding the remaining defendants—the Board, UNMC,
and the UNMC faculty members in their official capacities—
we conclude that Doe’s claims of fraudulent concealment,
violations of his due process rights, and breach of contract
fail to state a claim for relief that is plausible on its face. But
regarding his claims under the ADA and the Rehabilitation Act,
we find that the district court erred in dismissing the claims
against the Board, UNMC, and the UNMC faculty members in
their official capacities.
A ffirmed in pArt, And in pArt reversed And
remAnded for further proceedings.
stephAn, J., not participating.
CeNTRAL NeB. pUB. pOWeR DIST. v. NORTh pLATTe NRD 	533
Cite as 280 Neb. 533
the centrAl nebrAskA public power And irrigAtion
district, A public corporAtion And politicAl subdivision of
the stAte of nebrAskA, AppellAnt And cross -Appellee ,
v. north plAtte nAturAl resources district,
A politicAl subdivision of the stAte of
nebrAskA, Appellee And cross -AppellAnt.
788 N.W.2d 252
Filed August 27, 2010. 	No. S-09-727.
1. Motions to Dismiss: Appeal and Error. An appellate court reviews a district
court’s order granting a motion to dismiss de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing a dismissal
order, an appellate court accepts as true all the facts which are well pled and the
proper and reasonable inferences of law and fact which may be drawn therefrom,
but not the pleader’s conclusions.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

3. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure
to state a claim, the pleader must allege sufficient facts, accepted as true, to state
a claim to relief that is plausible on its face.
4. Actions: Evidence. In cases in which a plaintiff does not or cannot allege spe-
cific facts showing a necessary element, the factual allegations, taken as true, are
nonetheless plausible if they suggest the existence of the element and raise a rea-
sonable expectation that discovery will reveal evidence of the element or claim.
5. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision allowing
or disallowing attorney fees for frivolous or bad-faith litigation will be upheld in
the absence of an abuse of discretion.
6. Actions: Parties: Standing. A party has standing to invoke a court’s jurisdic-
tion if it has a legal or equitable right, title, or interest in the subject matter of
the controversy.
7. ____: ____: ____. A party must have standing before a court can exercise juris-
diction, and either a party or the court can raise a question of standing at any time
during the proceeding.
8. Standing: Jurisdiction. Standing relates to a court’s power, that is, jurisdiction,
to address issues presented and serves to identify those disputes which are appro-
priately resolved through the judicial process.
9. Standing. Under the doctrine of standing, a court may decline to determine
merits of a legal claim because the party advancing it is not properly situated
to be entitled to its judicial determination. The focus is on the party, not the
claim itself.
10. Standing: Jurisdiction. Standing requires that a litigant have such a personal
stake in the outcome of a controversy as to warrant invocation of a court’s
jurisdiction and justify exercise of the court’s remedial powers on the liti-
gant’s behalf.
11. Claims: Parties. Generally, a litigant must assert the litigant’s own rights and
interests, and cannot rest a claim on the legal rights or interests of third parties.
12. Standing: Proof. To have standing, a litigant first must clearly demonstrate that
it has suffered an injury in fact. That injury must be concrete in both a qualitative
and temporal sense.
13. Complaints: Justiciable Issues. A complainant must allege an injury to itself
that is distinct and palpable, as opposed to merely abstract, and the alleged harm
must be actual or imminent, not conjectural or hypothetical.
14. Actions: Proof. A litigant must show that its injury can be fairly traced to the
challenged action and is likely to be redressed by a favorable decision.
15. Actions: Motions to Dismiss. For purposes of a motion to dismiss, threadbare
recitals of the elements of a cause of action, supported by mere conclusory state-
ments, do not suffice. A court is not obliged to accept as true a legal conclusion
couched as a factual allegation.
16. Pleadings: Proof. A pleader’s obligation to provide the grounds of its entitlement
to relief requires more than labels and conclusions. Nor does a pleading suffice if
it tenders naked assertion, devoid of further factual enhancement.
17. Actions: Waters: Words and Phrases. A “harm” to a person entitled to the use
of water implies a loss or detriment to a person, and not a mere change or altera-
tion in some physical person, object, or thing. physical changes may be either
beneficial, detrimental, or of no consequence to a person.
534 	280 NeBRASkA RepORTS

18. Words and Phrases. “harm” is the detriment or loss to a person which occurs
by virtue of, or as a result of, some alteration or change in his person or in physi-
cal things.
19. Attorney Fees. Neb. Rev. Stat. § 25-824 (Reissue 2008) provides generally that
the district court can award reasonable attorney fees and court costs against any
attorney or party who has brought or defended a civil action that alleges a claim
or defense that a court determines is frivolous or made in bad faith.
20. Attorney Fees: Words and Phrases. The term “frivolous” connotes an improper
motive or legal position so wholly without merit as to be ridiculous.
21. Actions. Any doubt about whether a legal position is frivolous or taken in bad
faith should be resolved in favor of the one whose legal position is in question.
Appeal from the District Court for Scotts Bluff County:
rAndAll l. lippstreu, Judge. Affirmed.
Michael C. klein, Charles D. Brewster, and Jonathan R.
Brandt, of Anderson, klein, Swan & Brewster, for appellant.
Steven C. Smith and Lindsay R. Snyder, of Smith, Snyder
& pettit, and peter W. katt, Stephanie F. Stacy, and Derek C.
Zimmerman, of Baylor, evnen, Curtiss, Grimit & Witt, L.L.p.,
for appellee.
heAvicAn, 	c.J., 	wright, 	connolly, 	gerrArd, 	stephAn,
mccormAck, and miller-lermAn, JJ.
gerrArd, J.
The primary issue in this case is whether the appellant, a
power and irrigation district that appropriates and stores sur-
face water for the benefit of public users, may bring a judicial
review proceeding under the Administrative procedure Act
(ApA)1 to challenge a natural resources district’s ground water
appropriation. Because we agree with the district court that the
appellant lacks standing to do so, we affirm the court’s dis-
missal of the appellant’s complaint.
BACkGROUND
In 2008, the North platte Natural Resources District (NRD)
held a public hearing, pursuant to the Nebraska Ground Water
1 Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2008 & Supp. 2009).
CeNTRAL NeB. pUB. pOWeR DIST. v. NORTh pLATTe NRD 	535
Cite as 280 Neb. 533

Management and protection Act (GWMpA),2 regarding pro-
posed rules and regulations for the pumpkin Creek Basin
Groundwater Management Sub-Area. The NRD proposed to
lower the ground water allocation from 14 inches per acre to 12
inches per acre. Two people objected at the hearing: a represent-
ative of the Spear T Ranch, Inc. (Spear T), a pumpkin Creek
surface water irrigator, and the public relations manager of The
Central Nebraska public power and Irrigation District (Central).
Both objectors argued, generally, that a reduction to 12 inches
per acre was insufficient to correct a significant decrease in
surface water streamflow in the pumpkin Creek basin. But the
NRD decided to implement its proposed reduction.
Central filed a petition for judicial review pursuant to
the ApA.3 Central alleged that it owns and operates a system
of reservoirs, canals, and laterals used for several purposes,
including irrigation, recreation, environmental protection, and
powerplant cooling. Among other things, Central operates Lake
McConaughy, a reservoir located on the North platte River, and
owns and operates hydroelectric facilities that use the waters
of Lake McConaughy and the North platte River. Central also
stores and releases water to the Nebraska public power District
for use in powerplant cooling, hydroelectric power generation,
and the public power district’s reservoirs and fishery. And
Central alleged several other purposes for which the water it
stores and releases is used, including streamflow and aqui-
fer recharge.
Central alleged that ground water depletions in the NRD’s
jurisdiction had caused streamflow into Lake McConaughy to
decline, substantially reducing the lake’s level. Specifically,
Central alleged that the NRD’s ground water withdrawals were
causing direct and substantial depletions of pumpkin Creek, a
tributary of the North platte River—water which would, Central
alleged, have been available for storage in Lake McConaughy.
Central concluded that the NRD’s ground water allocation was
unreasonable and was causing harm to it and to the water uses
it had described.
2 Neb. Rev. Stat. §§ 46-701 to 46-754 (Reissue 2004 & Cum. Supp. 2008).
3 See §§ 46-750 and 84-917(1).
536 	280 NeBRASkA RepORTS

On that basis, Central asked the district court to enter an
order reversing the NRD’s ground water allocation and direct-
ing the NRD to adopt rules and regulations for ground water
allocation in the pumpkin Creek basin that would restore his-
toric surface water flows to the North platte River and its tribu-
taries. The NRD moved the court to dismiss Central’s petition
pursuant to Neb. Ct. R. pldg. § 6-1112. The NRD also moved
for attorney fees because, according to the NRD, Central’s peti-
tion was frivolous.4
The district court dismissed Central’s petition. The court
accepted the allegations of Central’s petition as true, but found
that Central was not a “‘person aggrieved’” within the meaning
of the ApA.5 The court reasoned that Central, because it was a
surface water appropriator located entirely outside the NRD’s
jurisdiction, was not directly affected by the NRD’s ground
water appropriation. The court stated that under Central’s alle-
gations, the NRD’s rules would adversely affect its surface
water appropriations, “but would also adversely impact practi-
cally every irrigator, landowner, water user, recreationer, out-
doorsman, and electric power consumer within the North platte
River Watershed between Wyoming and Iowa.” On that basis,
the court dismissed Central’s petition for judicial review. But
the court found that Central’s petition was not frivolous and
denied the NRD’s motion for attorney fees. Central appeals,
and the NRD cross-appeals.
ASSIGNMeNTS OF eRROR
Central assigns that the district court failed to provide it with
due process and erred in dismissing its petition for judicial
review, because it has a real, direct, and substantial interest in
the outcome of the litigation based, in part, upon its propri-
etary interest in, and the multitude of uses of, surface water.
On cross-appeal, the NRD assigns that the district court erred
by denying its motion for reasonable attorney fees and costs
pursuant to § 25-824.
4 See Neb. Rev. Stat. § 25-824 (Reissue 2008).
5 See §§ 46-750 and 84-917(1).
CeNTRAL NeB. pUB. pOWeR DIST. v. NORTh pLATTe NRD 	537
Cite as 280 Neb. 533

STANDARD OF ReVIeW
[1-4] An appellate court reviews a district court’s order
granting a motion to dismiss de novo.6 When reviewing a dis-
missal order, we accept as true all the facts which are well pled
and the proper and reasonable inferences of law and fact which
may be drawn therefrom, but not the pleader’s conclusions.7
To prevail against a motion to dismiss for failure to state a
claim, the pleader must allege sufficient facts, taken as true, to
state a claim to relief that is plausible on its face.8 In cases in
which a plaintiff does not or cannot allege specific facts show-
ing a necessary element, the factual allegations, taken as true,
are nonetheless plausible if they suggest the existence of the
element and raise a reasonable expectation that discovery will
reveal evidence of the element or claim.9
[5] On appeal, a trial court’s decision allowing or disallow-
ing attorney fees for frivolous or bad-faith litigation will be
upheld in the absence of an abuse of discretion.10
ANALySIS
stAnding
We turn first to the issue of standing. pursuant to § 46-750,
“Any person aggrieved by any order of [a natural resources]
district, the Director of environmental Quality, or the Director
of Natural Resources issued pursuant to the [GWMpA] may
appeal the order. The appeal shall be in accordance with the
[ApA].” And § 84-917(1) provides in part that “[a]ny person
6 See Kocontes v. McQuaid, 279 Neb. 335, 778 N.W.2d 410 (2010).
7 See Doe v. Board of Regents, ante p. 492, 788 N.W.2d 264 (2010). See,
also, In re Southern Scrap Material Co., LLC, 541 F.3d 584 (5th Cir.
2008), cert. denied 556 U.S. 1152, 129 S. Ct. 1669, 173 L. ed. 2d 1036
(2009).
8 See Doe, supra note 7. See, also, Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 127 S. Ct. 1955, 167 L. ed. 2d 929 (2007); In re Southern Scrap
Material Co., LLC, supra note 7.
9 See Doe, supra note 7. See, also, Twombly, supra note 8; In re Southern
Scrap Material Co., LLC, supra note 7.
10 See, Brummels v. Tomasek, 273 Neb. 573, 731 N.W.2d 585 (2007);
§ 25-824.
538 	280 NeBRASkA RepORTS

aggrieved by a final decision in a contested case, whether
such decision is affirmative or negative in form, shall be
entitled to judicial review under the [ApA].” An irrigation
district is a “person” within the meaning of § 46-750.11 So,
the first question we address in this appeal is whether Central
was “aggrieved” by the NRD’s order within the meaning of
§§ 46-750 and 84-917(1).
[6,7] Neither the ApA nor the GWMpA defines “aggrieved,”
but we have addressed the “aggrieved party” in terms of stand-
ing.12 A party has standing to invoke a court’s jurisdiction if
it has a legal or equitable right, title, or interest in the subject
matter of the controversy.13 A party must have standing before
a court can exercise jurisdiction, and either a party or the court
can raise a question of standing at any time during the proceed-
ing.14 The “party aggrieved” concept must be given a practical
rather than hypertechnical meaning.15
We have addressed standing in the specific context of
water law several times in recent years. To begin with, in
Metropolitan Utilities Dist. v. Twin Platte NRD,16 we held that
a natural resources district did not have standing to appeal
from an order of the then Department of Water Resources
removing it as an objector to an application to withdraw
water from the platte River. We noted that the district did
not have a water right that would be adversely affected by
the application and concluded that “the fact that the water
rights of the constituents of a natural resources district may
be affected by an application to appropriate waters does not
11 See § 46-706(1).
12 See, In re Application of Metropolitan Util. Dist., 270 Neb. 494, 704
N.W.2d 237 (2005); Stoneman v. United Neb. Bank, 254 Neb. 477, 577
N.W.2d 271 (1998); Karnes v. Wilkinson Mfg., 220 Neb. 150, 368 N.W.2d
788 (1985).
13 In re Application of Metropolitan Util. Dist., supra note 12.
14 Id.
15 Id.
16 Metropolitan Utilities Dist. v. Twin Platte NRD, 250 Neb. 442, 550 N.W.2d
907 (1996).
CeNTRAL NeB. pUB. pOWeR DIST. v. NORTh pLATTe NRD 	539
Cite as 280 Neb. 533

confer standing upon such natural resources district to object
to the application.”17
Shortly 	thereafter, 	in 	Ponderosa 	Ridge 	LLC 	v. 	Banner
County,18 we held that neither a county nor a natural resources
district had standing to object to an application to transfer
ground water that, according to the objectors, could have
resulted in wastewater pollution. We found that two of the
objectors had water use interests to protect but that others did
not, including the county and district. The county argued that
it was appearing on behalf of its residents, and the district
argued that it was appearing to protect the public interest, but
we found those interests—unlike those of the objectors who
actually had water use interests—to be insufficient to estab-
lish standing.19
We distinguished Ponderosa Ridge LLC in Hagan v. Upper
Republican NRD,20 in which the plaintiffs, irrigators in a natu-
ral resources district, challenged the natural resources district’s
agreement with two other residents which, in effect, permitted
a variance allowing the use of additional underground water.
The trial court dismissed the action on standing, reasoning that
the plaintiffs’ status was no different than all the members of
the general public living in the district. On appeal, we affirmed
the Court of Appeals’ reversal of the judgment, noting that the
plaintiffs had alleged that their water use interests would be
harmed because there would be less water available for their
irrigation needs. Those allegations, we concluded, were suf-
ficient to distinguish the plaintiffs’ injuries from those of the
general public.21
Finally, in Spear T Ranch v. Knaub,22 we rejected Central’s
attempt to intervene in ongoing litigation between Spear T and
17 Id. at 449, 550 N.W.2d at 912.
18 Ponderosa Ridge LLC v. Banner County, 250 Neb. 944, 554 N.W.2d 151
(1996).
19 See id.
20 Hagan v. Upper Republican NRD, 261 Neb. 312, 622 N.W.2d 627 (2001).
21 See id.
22 Spear T Ranch v. Knaub, 271 Neb. 578, 713 N.W.2d 489 (2006).
540 	280 NeBRASkA RepORTS

a number of ground water irrigators over an alleged loss of
surface water in pumpkin Creek. The issue in that case was
not standing, precisely; instead, it was whether Central had
proved that it had the “direct and legal interest in the subject
matter of the action” required to intervene.23 We concluded
that it had not, because it had no legal interest in the Spear T
litigation. We explained that none of Central’s interests in the
alleged diversion of water from pumpkin Creek were common
to Spear T’s interests, so we reasoned that
Central’s interests do not factor into this equation. Central
would gain or lose nothing by a damage award in favor
of Spear T or a judgment in favor of the defendants.
Because any injunctive relief would be tailored to redress
a specific injury proved by Spear T, Central has nothing
more than an indirect, remote, or conjectural interest in
one possible result of the litigation between Spear T and
the defendants. Indeed, the factual allegations of Central’s
motion to intervene would introduce an entirely new
subject matter into this action: a claim by Central that
the actions of ground water users caused harm to its own
interests for which it would be entitled to injunctive relief.
While it is free to pursue this claim in a separate action,
Central has not shown that it has a direct and legal inter-
est in the subject matter of the action asserted by Spear T,
which is a prerequisite to intervention . . . .24
[8-11] These cases represent fact-specific iterations of basic
standing principles. Standing relates to a court’s power, that
is, jurisdiction, to address issues presented and serves to iden-
tify those disputes which are appropriately resolved through
the judicial process.25 Under the doctrine of standing, a court
may decline to determine merits of a legal claim because the
party advancing it is not properly situated to be entitled to
its judicial determination. The focus is on the party, not the
23 Id. at 584, 713 N.W.2d at 494.
24 Id.
25 State v. Baltimore, 242 Neb. 562, 495 N.W.2d 921 (1993), citing Whitmore
v. Arkansas, 495 U.S. 149, 110 S. Ct. 1717, 109 L. ed. 2d 135 (1990).
CeNTRAL NeB. pUB. pOWeR DIST. v. NORTh pLATTe NRD 	541
Cite as 280 Neb. 533

claim itself.26 And standing requires that a litigant have such
a personal stake in the outcome of a controversy as to warrant
invocation of a court’s jurisdiction and justify exercise of the
court’s remedial powers on the litigant’s behalf.27 Thus, gener-
ally, a litigant must assert the litigant’s own rights and inter-
ests, and cannot rest a claim on the legal rights or interests of
third parties.28
[12-14] Specifically, a litigant first must clearly demon-
strate that it has suffered an “‘“injury in fact.”’”29 That injury
must be concrete in both a qualitative and temporal sense. The
complainant must allege an injury to itself that is distinct and
palpable, as opposed to merely abstract, and the alleged harm
must be actual or imminent, not conjectural or hypothetical.30
Further, the litigant must show that the injury can be fairly
traced to the challenged action and is likely to be redressed by
a favorable decision.31
The shortcoming in Central’s petition is its failure to specifi-
cally allege how it has suffered an injury in fact. In this case,
Central has alleged that it has water use interests (although its
water uses primarily benefit others). And Central has alleged
injuries that have occurred to its constituents in its jurisdiction
from the use of ground water in the NRD’s jurisdiction. But it
has not connected the two. Specifically, Central has not alleged
how its particular water use interests, to the extent it has any,
have been injured by the NRD.
For instance, Central alleges that due to reduced water sup-
ply, only limited storage water from Lake McConaughy has
been available for use by canal operators that contract with
Central. And Central alleges that it has had to reduce the
amount of water it delivers to irrigators. But those uses of
26 Id.
27 See id., citing Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. ed. 2d
343 (1975).
28 Id.
29 Id. at 569, 495 N.W.2d at 926, quoting Whitmore, supra note 25.
30 See id.
31 See id. See, also, Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139,
130 S. Ct. 2743, 177 L. ed. 2d 461 (2010).
542 	280 NeBRASkA RepORTS

water are quintessentially the legal rights or interests of third
parties. Similarly, Central alleges that the NRD has caused
pumpkin Creek to run dry—but Central does not have a right
to appropriate water from pumpkin Creek. And while Central
alleges that a percentage of Lake McConaughy’s inflow is set
aside to benefit endangered and threatened species, that interest
is a public one and, in any event, is managed by the U.S. Fish
and Wildlife Service, not Central.
Central’s purported interests in water use are, for the most
part, derivative of the interests of others. The interests at
issue are actually those of the members of the public who use
Lake McConaughy or rely on Central’s distribution of water
or production of power. While an irrigation district may hold
a surface water appropriation in its own name, it holds that
appropriation for the benefit of the owners of land to which the
appropriation is attached.32 In other words, generally speaking,
Central is an agent for the purposes of diverting, storing, trans-
porting, and delivering water,33 and the injuries it has alleged
are to the beneficiaries of those purposes, not Central’s own
interests. And it is well established, as discussed above, that
Central cannot challenge the NRD’s use of water based upon
the interests of its constituents.
Nor, even in these instances, has Central consistently alleged
particular injury. For example, even if we infer that less water
is available to the U.S. Fish and Wildlife Service for endan-
gered species, Central did not allege that the reduced amount
of water fell short of what was required or even desirable for
that purpose. Nor did Central allege that reduced water deliv-
ery to canal operators impaired the operation of their canals.
Similarly, although Central alleges that it has its own interest
in generating power with water from the North platte River
and Lake McConaughy, it did not allege that it was less able
to generate power as a result of the NRD’s conduct, nor did it
allege that less power was available to its customers. It is axio-
matic that any use of a limited resource necessarily results in
32 Neb. Rev. Stat. § 46-2,121 (Reissue 2004).
33 See Empire West Side Irrigation Dist. v. Lovelace, 5 Cal. App. 3d 911, 85
Cal. Rptr. 552 (1970).
CeNTRAL NeB. pUB. pOWeR DIST. v. NORTh pLATTe NRD 	543
Cite as 280 Neb. 533

marginally less availability of that resource for potential use by
others. An injury in fact, for standing purposes, requires a more
particularized harm to a more direct, identified interest.
[15,16] And the failure to allege particular facts supporting
its claimed injuries is also fatal to Central’s broader allegations
that the ground water use permitted by the NRD is causing the
“destruction of Lake McConaughy” and “unreasonably causing
harm to Central, and to all of the uses described in the [peti-
tion].” This is a legal conclusion more than a factual allegation.
For purposes of a motion to dismiss, threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice. A court is not obliged to accept
as true a legal conclusion couched as a factual allegation.34 A
pleader’s obligation to provide the grounds of its entitlement to
relief requires more than labels and conclusions.35 Nor does a
pleading suffice if it tenders naked assertion, devoid of further
factual enhancement.36
While Central’s petition in this case contains pages of
factual allegations, none of those allegations explain, par-
ticularly, how any water use interest of Central’s has been
harmed, as opposed to the water use interests of those on
whose behalf Central manages water resources. And because
all the facts supporting an allegation of an injury in fact to
Central should already be known to Central, there is no basis
to believe that discovery in this case, even if available in an
ApA judicial review proceeding, would reveal evidence of
such an injury.
Nor is Central’s allegation of the “destruction of Lake
McConaughy” enough to “raise a right to relief above the
speculative level.”37 To begin with, the more specific allega-
tions in Central’s pleading, while not benign, are inconsistent
with Central’s more apocalyptic rhetoric. The “destruction
34 See, Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. ed. 2d 868
(2009); Twombly, supra note 8.
35 See Twombly, supra note 8.
36 See, Iqbal, supra note 34; Twombly, supra note 8.
37 See Twombly, supra note 8, 550 U.S. at 555.
544 	280 NeBRASkA RepORTS

of Lake McConaughy” is, while not inconceivable, more
“‘“conjectural”’” 	and 	“‘“hypothetical”’” 	than 	“‘actual 	or
imminent.’”38
Central’s 	allegation 	rests 	on 	the 	attenuated 	connection
between the NRD’s regulation, ground water use in the pumpkin
Creek basin, streamflows in pumpkin Creek and the North
platte River, and the ultimate volume of Lake McConaughy.
harm to surface water irrigators on pumpkin Creek could,
potentially, be “‘“fairly . . . traced”’” to the NRD’s regula-
tion.39 Central’s purported injury, however, is remote. There is
no limiting principle on Central’s expansive theory of causa-
tion of an injury in fact, which could conceivably involve the
entire water cycle from the Continental Divide to the Gulf
of Mexico.
We also note that while Central alleges that reduction of
ground water use would increase the amount of water in
pumpkin Creek available to Lake McConaughy, any additional
water in pumpkin Creek would, first and foremost, be avail-
able to surface water irrigators in the pumpkin Creek water-
shed. Central alleges on one hand that amending the NRD’s
regulations would avoid injury to the water use interests it
represents, but concedes on the other hand that “an equitable
reduction in ground water withdrawals in the pumpkin Creek
watershed cannot, in and of itself, prevent the ruination of
[Lake McConaughy.]” Apart from the conjectural nature of
the asserted injury, it is far from clear that any purported
injury to Central is redressable by a favorable ruling.40 And an
unredressable injury does not support standing to seek a judi-
cial determination.41
In arguing to the contrary, Central relies on our deci-
sion in Spear T Ranch v. Knaub,42 in which we adopted the
38 See Baltimore, supra note 25, 242 Neb. at 569, 495 N.W.2d at 926.
39 See id.
40 See, Monsanto Co., supra note 31; Whitmore, supra note 25; Baltimore,
supra note 25.
41 See Baltimore, supra note 25.
42 Spear T Ranch v. Knaub, 269 Neb. 177, 691 N.W.2d 116 (2005).
CeNTRAL NeB. pUB. pOWeR DIST. v. NORTh pLATTe NRD 	545
Cite as 280 Neb. 533

Restatement (Second) of Torts to govern conflicts between
users of hydrologically connected surface water and ground
water.43 Specifically, we held:
“A proprietor of land or his [or her] grantee who with-
draws ground water from the land and uses it for a benefi-
cial purpose is not subject to liability for interference with
the use of water of another, unless . . . the withdrawal of
the ground water has a direct and substantial effect upon
a watercourse or lake and unreasonably causes harm to a
person entitled to the use of its water.”44
Central contends that it is “untenable” that a property right
could exist for purposes of tort law, but not for purposes of
ApA review of the NRD’s order.45
[17,18] But Central overlooks some important distinctions.
First, as discussed above, Central’s “right” to use water is
based in interests of others, unlike the pumpkin Creek surface
water irrigators who were the plaintiffs in Spear T Ranch. And
Central’s reliance on Spear T Ranch is undermined by the same
shortcomings in its petition that were discussed above. The
Restatement makes clear that a “‘harm’” to a person entitled
to the use of water “implies a loss or detriment to a person,
and not a mere change or alteration in some physical person,
object or thing. physical changes . . . may be either beneficial,
detrimental, or of no consequence to a person.”46 Thus, “harm,”
under the Restatement, “is the detriment or loss to a person
which occurs by virtue of, or as a result of, some alteration or
change in his person, or in physical things.”47 In other words, a
change in streamflow, or the level of Lake McConaughy, is not
necessarily a “harm” unless it has detrimental effects—and for
standing purposes, those effects must be directly detrimental to
Central’s interests. And as explained above, Central’s pleading
is insufficient on that point.
43 See Restatement (Second) of Torts § 858 (1979).
44 Spear T Ranch, supra note 42, 269 Neb. at 194, 691 N.W.2d at 132.
45 Brief for appellant at 20.
46 Restatement (Second) of Torts § 7, comment b. at 13 (1965).
47 Id.
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For the foregoing reasons, we conclude that Central did
not allege injury to its water use interests, as opposed to the
interests of others, sufficiently to confer standing to seek
judicial review under the ApA. Central’s purported water use
interests are actually public interests, and they are attenu-
ated from the NRD’s regulation. We also note, in passing,
the claim in Central’s assignment of error that “[t]he district
court failed to provide Central with due process.” Central’s
brief contains no separate due process argument, so we
assume that any “due process” claim is subsumed in its more
general standing argument. And, as explained above, we find
that argument to be without merit. We also note that there is
no suggestion, in the record or Central’s brief on appeal, that
Central should have been offered leave to replead. Thus, we
affirm the district court’s order dismissing Central’s petition
for judicial review.
cross -A ppeAl
On cross-appeal, the NRD assigns that the district court
erred in denying its motion for attorney fees. The NRD argues
that Central’s petition was frivolous.
[19-21] Section 25-824 provides generally that the district
court can award reasonable attorney fees and court costs against
any attorney or party who has brought or defended a civil
action that alleges a claim or defense that a court determines
is frivolous or made in bad faith.48 The term “frivolous” con-
notes an improper motive or legal position so wholly without
merit as to be ridiculous.49 But any doubt about whether a legal
position is frivolous or taken in bad faith should be resolved in
favor of the one whose legal position is in question.50
Although Central has been a frequent visitor to this court,51
we cannot say that the present proceeding was so wholly
48 Lamar Co. v. City of Fremont, 278 Neb. 485, 771 N.W.2d 894 (2009).
49 Cornett v. City of Omaha Police & Fire Ret. Sys., 266 Neb. 216, 664
N.W.2d 23 (2003).
50 Id.
51 See, Spear T Ranch, supra note 22; In re Complaint of Central Neb. Pub.
Power, 270 Neb. 108, 699 N.W.2d 372 (2005).
CeNTRAL NeB. pUB. pOWeR DIST. v. NORTh pLATTe NRD 	547
Cite as 280 Neb. 533

devoid of legal merit that the district court abused its discretion
in concluding that the action was not frivolous. Thus, we find
the NRD’s assignment of error to be without merit.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.
548 	280 NeBRASkA RepORTS