Summary of the Open Meetings Lawsuit against the URNRD

as of March 3, 2007

 

During the creation of the Integrated Management Plan, the Upper Republican NRD board repeatedly went into closed session to discuss the details of the IMP.  

We contend that the process worked like this.  The URNRD formed a negotiating committee comprising of Greg Pelster, Tom Terryberry, Kenny Owens, Dean Large, and Terry Martin.   That this group of individuals secretly meet on a large number of occasions for the purpose of discussing the details of the IMP.  This included the details of how much water each farmer would be allowed to use, the status of carryover and pooling, enforcement mechanisms and many other details.  These discussions often included telephone and in person conversations with members of the DNR.  The results of these conversations were then reduced to suggested language to be included in the IMP.  Drafts of the IMP were emailed to the members of the URNRD for their consideration.  The negotiating committee then provided a full update of the committees activities and suggestions to the full board but only in closed sessions.  

The URNRD admits this is the case.  It says so in its filing with the Nebraska Supreme Court which you can read below.

We contend that the actions of the negotiating committee were the formation of policy and that this process is required by law to be open to the public.  The URNRD vigorously insists that the decision process of who gets how much water is not public policy but a protected negotiating activity.  The URNRD insists that if the public was aware of the details of the negotiations that the public would be harmed.  Mike Mosel, in his partial deposition before he walked out, said that the URNRD had to go into closed session in order to protect the reputation of Roger Patterson, head of the DNR, as he presented information to the other NRDs that would be to the benefit of the URNRD and that if this information was public, the URNRD would be disadvantaged. 

We contend that that decision process of who gets how much water is the formation of public policy and is public information.  It is important that the public be allowed to see what each board member believes and advocates.  The board member is a representative of the public and how he represents the public, what he says, what he argues for, and what information he has available to him should be public.  We believe the URNRD board simply prefers to make public policy in private because it is sometimes controversial and these individuals prefer that the public not be aware of some of the tradeoffs they made. 

The URNRD claims that the DNR threatened the URNRD with dire consequences if it did not agree to the DNR terms of the IMP.  We believe that such threats should be public knowledge.  At present we have no way of knowing if the threats were real except to trust our representative.  But when our representative repeatedly hides what he does, in what we believe is a clear violation of the law, it is hard to trust.

Below are the relevant meeting minutes that show how often the URNRD went into closed session.  We repeatedly objected to individuals.  Our questions and our concerns were arrogantly ignored or rejected.  Therefore we asked the court to decide who was correct.  The following pages show the court documents recently filed by the URNRD in its defense.

 

Timeline


 

Note, you may need to click on each page once it has loaded to be able to make it full size so you can read it more easily.

URNRD Board minutes showing closed session meetings

 

Original Complaint

Summary

The plaintiffs complain that the URNRD has repeatedly gone into closed sessions illegally as we asked that the court do three things in response:

  1. Declare these closes sessions illegal.
  2. Order the URNRD to have no future closed sessions regarding policy
  3. Pay our legal costs of correcting the situation

What we did not ask for, but could have, is an order from the court voiding the IMP.  This is significant.  

Journal Entry and Court Order - Battershell

Summary

A hearing was held by Judge Battershell to decide various motions.

Plaintiff motions

  • Granted    - Require URNRD to submit to depositions  
  • Granted    - Depositions be done in McCook as a penalty for walking out of the depositions held in Imperial on June 28, 2005
  • Denied     - Protection from URNRD obtaining a list of WaterClaim members and amounts each contributed to WaterClaim

Defendant motions

  • Denied    - Limit or terminate depositions   
  • Denied    - Remove WaterClaim from the lawsuit as WaterClaim is not a citizen and only citizens can file suit
  • Granted   - A list of naming each member of WaterClaim and the amount each gave to WaterClaim

 

Journal Entry and Court Order - Urbom

A hearing was held by Judge Urbom to decide various motions.

Plaintiff motions

  • Granted    - Set a date for depositions.  The date was set for no later than May 1, 2006  
  • Granted    - Penalty for failure to show on March 1 date.  Penalty was set at $675

Defendant motions

  • Denied    - Interview the defendants  "in camera".  Meaning, permit a private interview with the judge. 
  • Denied    - Overturn Judge Battershell's ruling

 

Application for Leave of Court to Commence Original Action

Summary

  • URNRD asks permission of the Supreme Court to file a lawsuit against the District Court
  • The URNRD says that in its petition that it will ask the Court to order the district court to reverse its order.  It will ask this because if the lower courts orders, to submit to depositions, are carried out that the URNRD's negotiating strategies on the past IMP and on future IMPs will be revealed to the detriment of the citizens of the URNRD.

 

Petition for Preemptory Writ of Mandamus

Summary

  • The URNRD states in paragraph 18 that "The board of directors of the URNRD, in order to initiate the process of negotiating and assist in formulating an IMP, appointed a negotiating committee consisting of five members of the board of directors and the manager.  The negotiating committee would hold discussions with legal counsel, DNR, and its' attorneys, to negotiate the various issues associated with the formation of an IMP as contemplated by the Ground Water Management Protection Act.  At the regular meetings of the entire board of the URNRD, the board would convene closed sessions, at which time the negotiating committee would provide the entire board with an update of the negotiations held with DNR, and receive direction form the board as to how to proceed with the negotiations."

{The plaintiffs agree that this is an accurate statement of what happens.  We believe this violates the Open Meeting Act.  This is the basis of our complaint.  It is now up to the courts to rule on whether this is acceptable under State law or not.   The URNRD calls the decisions made on what to put into the IMP, such as how much water each landowner is allowed to use a "negotiation" and hence exempt from the Open Meeting requirements.  The plaintiffs calls such decisions, the formation of public policy and hence specifically subject to Open Meeting requirements.} 

  • The URNRD states in paragraph 25 the reasons the closed sessions are justified.
    • To protect the public interest by negotiating the IMP with the DNR without the DNR or the other NRDs knowing the URNRD's strategy.
    • The law permits closed sessions for the purpose of giving directions to a sub-committee on how to negotiate.
    • To permit discussions with legal counsel of specific language and its implications in the IMP.
    • To discuss what happens if the IMP is not agreed to.

{Again the plaintiffs agree that this is an accurate statement of what happens.  We believe this violates the Open Meeting Act.  Here the URNRD states that the sub-committee and also the full board, in closed sessions, discusses the specific language of the IMP (which is the policy document of the NRD) and discusses the implications of setting various policies.  We believe this is the definition of "the formation of public policy".} 

  • The URNRD states in paragraph 33, that because their attorney is present that anything the URNRD talks about is protected from public disclosure.  Note, an attorney is present at all times.
  • The URNRD lists in paragraph 39 why they are asking the Supreme Court to overturn the District Court orders
    • A revelation of the URNRD strategies would harm the ability of the district to maximize the water available to the district.
    • Depositions of the URNRD would violate confidentiality feature of the Open Meeting Act and undermine attorney client privilege.
    • Once the depositions are held, the URNRD is forever harmed and the damage cannot be undone if the court changes its mind later.
    • The District Court "continues to fail to recognize its clear duty imposed by the law and abused its discretion by failing to protect confidential and privileged information based decisions..."
    • An adverse ruling would affect every political body in the State.

 

Nebraska Supreme Court order staying proceedings

 

District Court order vacating previous orders

Nebraska Supreme Court Ruling Regarding URNRD Suit Against the District Court

 

On Friday, March 2, 2007, the Nebraska Supreme Court entered a ruling regarding the Open Meetings lawsuit the Upper Republican NRD filed against the District Court.  The URNRD action was in response to a March 22, 2006, District Court order requiring the URNRD to answer questions about the executive sessions it held in 2004, 2005, and 2006.

The URNRD disputed the District Court order and asked the Nebraska Supreme Court to block the requirement they answer questions about the closed sessions.

The URNRD made three arguments: 

  1. The Open Meetings Act protects the URNRD.
  2. Attorneys were present, so what was said is confidential.
  3. The closed door sessions were about State secrets, so are protected.

On March 2, 2007, the Nebraska Supreme Court ruled on the three arguments. 

The Court ruled against the URNRD on the first argument that the Open Meetings Act protected them.  This was the primary argument members of the URNRD used as an excuse for blocking public access to information about its discussions with the DNR when setting up water allocations for 2005 through 2007. 

The Court ruled “maybe” on argument two.  It said that just because an attorney is present, it doesn’t protect the URNRD.  But, there might be things that are protected, so the District Court has a ministerial duty to allow the URNRD to show the judge evidence that would support their claim.   The Supreme Court says this is best done in camera.

“In camera” is Latin for "in chambers."
“A legal proceeding is ’in camera’ when a hearing is held before the judge in her private chambers or when the public is excluded from the courtroom. Proceedings are often held in camera to protect victims and witnesses from public exposure, especially if the victim or witness is a child. There is still, however, a record made of the proceeding, typically by a court stenographer. The judge may decide to seal this record if the material is extremely sensitive or likely to prejudice one side or the other.” From www.nolo.com

Regarding the URNRD claim that State secrets were discussed in closed session, the Court said, “You never used this argument before now so we will not address it now.” 

So what happens now?  The matter returns to the District Court.  The URNRD will be required to appear before the District Court Judge, in his chambers, and is allowed to present evidence about which, if any, of the close door communications qualify as attorney-client privilege.  The Judge will then permit questions about whatever might not be privileged to help determine if the URNRD illegally excluded the public from the formation of public policy. 

You can read the Supreme Court ruling at: http://tinyurl.com/yu4mfw.