                         Nebraska Advance Sheets
	                          IN RE APPLICATION A-18503	611
	                              Cite as 286 Neb. 611

regard to the disclaimer advice claim, we conclude that the
district court erred when it concluded on summary judgment
that the statute of limitations barred the claim based on its
determination that the O’Daniels were put on inquiry notice
of the claim when they learned the amount of the tax liability
in April 2002. We therefore reverse the order granting sum-
mary judgment in favor of Murray on the disclaimer advice
claim, and we remand the cause for further proceedings on the
claim. With regard to the QTIP election claim, we conclude
that the district court erred when it concluded that the statute
of limitations barred the claim and when it concluded that the
O’Daniels failed to put on evidence of damages proximately
caused by Murray’s alleged negligence. We therefore reverse
the order granting a directed verdict in favor of Murray on
the QTIP election claim, and we remand the cause for further
proceedings on the claim. With regard to Murray’s cross-
appeal, we find no merit to the cross-appeal and we set forth
standards regarding questions of law and questions of fact in
a legal malpractice case that should be applied in the proceed-
ings on remand.
	Affirmed in part, and in part reversed and
	                  remanded for further proceedings.
   Miller-Lerman, J., participating on briefs.
   Wright, McCormack, and Cassel, JJ., not participating.



       In re Application A-18503, Water Division 2-D.
     Middle Niobrara Natural R esources District et al.,
      appellants, v. Department of Natural R esources
       and Nebraska P ublic Power District, appellees.
                                   ___ N.W.2d ___

                      Filed October 4, 2013.    No. S-12-1166.

 1.	 Administrative Law: Appeal and Error. In an appeal from a Department of
     Natural Resources order, an appellate court reviews whether the director’s factual
     determinations are supported by competent and relevant evidence and are not
     arbitrary, capricious, or unreasonable.
 2.	 ____: ____. In an appeal from a Department of Natural Resources order, an
     appellate court independently reviews questions of law decided by the director.
    Nebraska Advance Sheets
612	286 NEBRASKA REPORTS


 3.	 Jurisdiction: Judgments. A jurisdictional issue that does not involve a factual
      dispute presents a question of law.
 4.	 Standing: Jurisdiction: Parties. Standing is a jurisdictional component of a
      party’s case because only a party who has standing may invoke the jurisdiction of
      a court.
 5.	 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.
  6.	 ____: ____: ____. 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.
 7.	 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.
 8.	 Standing: Jurisdiction: Claims: Parties. 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. Thus, 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.
 9.	 Actions: Standing: Complaints: Justiciable Issues: Proof. To establish stand-
      ing, a litigant must first clearly demonstrate that it has suffered an injury in
      fact. That injury must be concrete in both a qualitative and a 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. Second, 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.

   Appeal from the Department of Natural Resources. Affirmed.

   Donald G. Blankenau, Thomas R. Wilmoth, and Vanessa A.
Silke, of Blankenau, Wilmoth & Jarecke, L.L.P., for appellants.

   Jon Bruning, Attorney General, Justin D. Lavene, and Blake
E. Johnson for appellee Department of Natural Resources.

  Stephen D. Mossman and Patricia L. Vannoy, of Mattson,
Ricketts, Davies, Stewart & Calkins, for appellee Nebraska
Public Power District.

  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
                     Nebraska Advance Sheets
	                     IN RE APPLICATION A-18503	613
	                         Cite as 286 Neb. 611

    Heavican, C.J.
                      I. INTRODUCTION
   The Nebraska Public Power District (NPPD) filed with
the Department of Natural Resources (DNR) an application
to appropriate additional surface water from the Niobrara
River. As relevant to this appeal, Middle Niobrara Natural
Resources District and Lower Niobrara Natural Resources
District (collectively NRD’s) and Thomas Higgins each filed
amended objections to the application. We note that during the
pendency of this appeal, a fourth party who also held existing
and pending water appropriations is now deceased and thus
dismissed from this action. We therefore will refer only to the
remaining three appellants. The DNR dismissed all objections
sua sponte. The NRD’s and Higgins appeal those dismissals.
We affirm.
                      II. BACKGROUND
   NPPD filed application A-18503 with the DNR on or about
April 16, 2007. The application requested the appropriation
of an additional 425 cubic feet per second (cfs) of natural
flow from the Niobrara River to add to the 2,035 cfs already
appropriated to NPPD in order to fulfill the entire capacity of
the hydropower units at NPPD’s hydropower facility, Spencer
Dam. Notice of NPPD’s application was published on March
15, 2012.
   The NRD’s and Higgins each filed objections to NPPD’s
application. The NRD’s are political subdivisions of the State
of Nebraska, charged with managing ground water within the
borders of their districts; Higgins is the owner of real prop-
erty in the Niobrara River Basin and, in relation to NPPD,
holds senior existing and pending Niobrara River surface
water appropriations.
   As noted above, the objections and requests for hearings
were dismissed sua sponte by the DNR. In the DNR’s order
of dismissal, the director concluded that the objectors lacked
standing. In particular, the NRD’s did not
     allege any legal right, title, or interest in the subject
     water of the Niobrara River. In addition, their allegations
     of harm are based upon mere conjecture that granting
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      A-18503 with its April 11, 2007, priority will cause a por-
      tion of the basin to be declared fully appropriated some-
      time in the future.
The director concluded that Higgins’ pending application did
not confer standing because no legal right existed with a
pending application. The director further found that even if
those applications were granted and perfected, they, along
with Higgins’ existing appropriations, would be senior and
upstream of A-18503. As such, the director did not find
Higgins’ allegations of harm credible. The director also noted
that any allegation of harm by hypothetical taxation by a natu-
ral resources district was speculative and not distinguishable
from harm caused to any other landowner within the natural
resources district. Finally, the director noted the allegation that
granting A-18503 was against the public interest was a conclu-
sion of law and not an allegation of fact.
   The NRD’s and Higgins appealed.

                III. ASSIGNMENTS OF ERROR
   The appellants assign as error, restated and renumbered,
that the director (1) erred in concluding that the NRD’s lacked
a legally cognizable interest to confer standing to object,
(2) erred in concluding that Higgins would not be adversely
affected in a manner sufficient to confer standing to object,
(3) applied an improper standard of review, and (4) failed to
consider the impact of granting the application on the pub-
lic interest.

                 IV. STANDARD OF REVIEW
   [1,2] In an appeal from a DNR order, we review whether
the director’s factual determinations are supported by compe-
tent and relevant evidence and are not arbitrary, capricious, or
unreasonable.1 But we independently review questions of law
decided by the director.2

 1	
      Middle Niobrara NRD v. Department of Nat. Resources, 281 Neb. 634,
      799 N.W.2d 305 (2011).
 2	
      See id.
                        Nebraska Advance Sheets
	                         IN RE APPLICATION A-18503	615
	                             Cite as 286 Neb. 611

   [3,4] A jurisdictional issue that does not involve a factual
dispute presents a question of law.3 Standing is a jurisdictional
component of a party’s case because only a party who has
standing may invoke the jurisdiction of a court.4
                           V. ANALYSIS
                             1. Standing
   [5,6] The primary issue on appeal in this case is whether
the DNR was correct in concluding that the appellants lacked
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.5 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 proceeding.6
   [7,8] 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 deter-
mination. The focus is on the party, not the claim itself.7 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.8 Thus, 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.9
   [9] Specifically, a litigant first must clearly demonstrate that
it has suffered an injury in fact.10 That injury must be concrete


 3	
      Id.
 4	
      Waste Connections of Neb. v. City of Lincoln, 269 Neb. 855, 697 N.W.2d
      256 (2005).
 5	
      Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533, 788
      N.W.2d 252 (2010).
 6	
      Id.
 7	
      Id.
 8	
      Id.
 9	
      Id.
10	
      See id.
    Nebraska Advance Sheets
616	286 NEBRASKA REPORTS



in both a qualitative and a 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.11 Second,
the litigant must show that the injury can be fairly traced to
the challenged action and is likely to be redressed by a favor-
able decision.12

                              (a) NRD’s
   The appellants first assign the DNR erred in finding that the
NRD’s lacked standing. In its order, the DNR concluded that
the NRD’s lacked standing because they failed to allege any
legal right, title, or interest in the subject water of the Niobrara
River and, further, that their allegations were based upon mere
conjecture that the granting of the application would cause a
portion of the Niobrara River Basin to be declared fully appro-
priated in the future.
   The NRD’s cite to the Nebraska Ground Water Management
and Protection Act13 and this court’s opinion in Middle
Niobrara NRD v. Department of Nat. Resources14 to sup-
port the assertion that they have standing because they are
responsible for the management of ground water that is hydro-
logically connected to the Niobrara River and its tributaries.
The NRD’s contend that “[i]n a very real sense, the Districts
manage much of the very same waters NPPD will appropri-
ate by A-18503, but at a different time and location.”15 The
NRD’s argue that A-18503 is connected to prior and ongoing
proceedings concerning the Niobrara River and Spencer Dam
and that it is foreseeable that diverting still more water for the
Spencer Dam will increase the likelihood that the Niobrara
River will be designated as fully appropriated. In further sup-
port of this argument, the NRD’s direct this court to primarily

11	
      Id.
12	
      Id.
13	
      Neb. Rev. Stat. §§ 46-701 to 46-754 (Reissue 2010 & Cum. Supp. 2012).
14	
      Middle Niobrara NRD v. Department of Nat. Resources, supra note 1.
15	
      Brief for appellants at 11.
                        Nebraska Advance Sheets
	                         IN RE APPLICATION A-18503	617
	                             Cite as 286 Neb. 611

federal case law suggesting that “threatened injury can satisfy
standing requirements.”16 They also argue that the granting
of the application will “preclude other local interests from
obtaining rights to that water and that doing so may limit the
future tax base of the NRDs, on which they rely to manage
ground water.”17
   These arguments are without merit. This court did find,
in Middle Niobrara NRD, that a natural resources district
was an “interested party” and had standing to challenge the
DNR’s designation of a river basin as fully appropriated. In
Middle Niobrara NRD, this court noted that ordinarily a natu-
ral resources district lacked “water rights adversely affected”
by a DNR order and that as such, a natural resources dis-
trict would lack standing.18 But we noted that the situation
in Middle Niobrara NRD was different: “[U]nlike our earlier
cases, the [DNR’s] action [in designating the river basin as
fully appropriated] triggers duties for the [natural resources
districts] that will require them to spend public funds. . . .
Neb. Rev. Stat. § 77-3442(4)(c) (Reissue 2009) supports this
claim.”19 We concluded that “because the [natural resources
districts] have fiduciary duties with regard to the public funds
that they are charged with raising and controlling, they have
standing to challenge state action that requires them to spend
those funds.”20
   We disagree with the contention made by the NRD’s that
in the case at bar their interests are “substantially the same”
as those that conferred standing in Middle Niobrara NRD.21
Standing under Middle Niobrara NRD was premised on the
duties placed upon a natural resources district by the Nebraska
Ground Water Management and Protection Act once a fully

16	
      Id. (emphasis in original).
17	
      Id. at 12.
18	
      Middle Niobrara NRD v. Department of Nat. Resources, supra note 1, 281
      Neb. at 646, 799 N.W.2d at 315.
19	
      Id.
20	
      Id. at 647, 799 N.W.2d at 315-16.
21	
      Brief for appellants at 7.
    Nebraska Advance Sheets
618	286 NEBRASKA REPORTS



appropriated designation had been made—duties which do
not exist here because no fully appropriated determination
has been made. We cannot conclude that a party has stand-
ing because an application might be granted, which then
might lead to a fully appropriated designation. To do so
would be to find standing based upon speculation; years of
Nebraska case law prohibit the conferring of standing under
such circumstances.
   And the reliance by the NRD’s on federal case law hold-
ing that a “threatened” injury can be sufficient to establish
standing is not persuasive. Nebraska case law is clear that an
injury in fact must be “concrete,” “actual and imminent,” and
“requires a more particularized harm to a more direct, identi-
fied interest.”22 The speculative claims made by the NRD’s
cannot confer standing under existing Nebraska case law, and
we decline to disregard that authority.
   Finally, the NRD’s contend that the appropriation will pre-
clude the use of that water for irrigation and limit their tax
base. But such claim is speculative: We noted in Central Neb.
Pub. Power Dist. that “[i]t is axiomatic that any use of a lim-
ited resource necessarily results in 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.”23
   The DNR did not err in dismissing the objections by the
NRD’s for lack of standing. The appellants’ first assignment of
error is without merit.

                         (b) Higgins
   The appellants next assign that the DNR erred in finding
that Higgins lacked standing. The DNR found that Higgins
claimed to hold current surface water appropriations and was
an applicant for further Niobrara River appropriations. But
the DNR concluded that Higgins failed to allege sufficient

22	
      Central Neb. Pub. Power Dist. v. North Platte NRD, supra note 5, 280
      Neb. at 544, 788 N.W.2d at 261.
23	
      Id. at 543-44, 788 N.W.2d at 261.
                         Nebraska Advance Sheets
	                         IN RE APPLICATION A-18503	619
	                             Cite as 286 Neb. 611

allegations of harm and thus did not have standing to object
to A-18503.
   In his objections, Higgins alleged that the granting of the
application “may” increase his property taxes, and also that
it “may” affect the value of his real property. Higgins further
alleged that the granting of the application would affect his
existing appropriations and would increase the cost of his
pending applications.
   We find that Higgins’ allegations that the granting of the
application “may” increase his taxes and affect the value of
his real property are both speculative, and not “actual or immi-
nent.” As such, both are insufficient to confer standing. Nor are
his allegations that the granting of the application will affect
his existing appropriations and increase the cost of his pending
applications sufficient to confer standing. Those allegations
fail to explain how his rights would be affected when all are
both upstream and senior to the appropriation requested in
A-18503. Moreover, as noted above, we held in Central Neb.
Pub. Power Dist. that the fact the application might result in
less water overall in the Niobrara River for Higgins’ use is
not a sufficiently “particularized harm to a more direct, identi-
fied interest.”24
   The DNR did not err in dismissing Higgins’ objections for
lack of standing. The appellants’ second assignment of error is
without merit.
                     2. Standard of R eview
   In the appellants’ second assignment of error, they argue that
the DNR applied an incorrect standard of review when it dis-
missed the appellants’ objections for lack of standing because
the DNR failed to assume the allegations were true and to view
them in a light most favorable to the appellants.
   We reject the contention that the appropriate standard was
not utilized by the DNR in assessing the appellants’ objections.
The appellants lack standing, but not because the DNR failed
to assume that the allegations were true and did not view them
in a light most favorable to the appellants. Rather, they lack

24	
      Id. at 544, 788 N.W.2d at 261.
    Nebraska Advance Sheets
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standing because even when the allegations are assumed as
true and viewed in a light most favorable to the appellants, the
allegations failed to allege either an interest or an injury suf-
ficient to confer standing. As we concluded above, the allega-
tions of the NRD’s failed to establish an interest and the alle-
gations of all the appellants were speculative, not alleged to be
actual or imminent, and were not a sufficiently “particularized
harm to a more direct, identified interest.”25 This assignment of
error is without merit.

                        3. Public Interest
   In the appellants’ third assignment of error, they argue that
Neb. Const. art. XV, § 6, allows the DNR director to deny an
application to appropriate water if “‘demanded by the public
interest,’” and further contend that A-18503 is not in the public
interest.26 The appellants assert that this “bolsters” the stand-
ing argument.27
   But the fact that the granting of an application might not be
in the public interest says nothing about whether the appellants
have standing in this case. This court has specifically held that
natural resources districts cannot assert the public interest.28
Nor can Higgins. The right and injury asserted in order to
establish standing must be the litigant’s own: “[I]t is not suf-
ficient that one has merely a general interest common to all
members of the public.”29 The appellants’ final assignment of
error is without merit.

                      VI. CONCLUSION
   The DNR’s dismissal of the appellants’ objections for lack
of standing is affirmed.
                                                  Affirmed.

25	
      Id.
26	
      Brief for appellants at 16.
27	
      Id.
28	
      Ponderosa Ridge LLC v. Banner County, 250 Neb. 944, 554 N.W.2d 151
      (1996).
29	
      Waste Connections of Neb. v. City of Lincoln, supra note 4, 269 Neb. at
      862, 697 N.W.2d at 263.
                         Nebraska Advance Sheets
	                          IN RE APPLICATION A-18503	621
	                              Cite as 286 Neb. 611

   Stephan, J., concurring in part, and in part dissenting.
   I concur in the majority opinion to the extent that it
affirms the dismissal by the Department of Natural Resources
(Department) of the two natural resources district (NRD)
appellants for lack of standing. But I dissent from the major-
ity’s similar disposition with respect to appellant Thomas
Higgins. I write separately to state my reasons for both
positions.

                       NRD Appellants
   Our holding in Middle Niobrara NRD v. Department of Nat.
Resources1 recognized an exception to the general rule that
an NRD does not have standing to object to an appropriation
application when it does not have a water right that would be
adversely affected by the application. Middle Niobrara NRD
was an appeal from the Department’s designation, pursuant
to the Nebraska Ground Water Management and Protection
Act (Act),2 that a river basin was fully appropriated. We rea-
soned that because this designation would require an affected
NRD to expend public funds pursuant to the Act, the NRD
had standing to challenge the designation. We noted that a
contrary holding “would leave political subdivisions at the
mercy of superior agencies with no redress for actions that
improperly or arbitrarily and capriciously require them to
spend public funds.”3
   I am not persuaded that we should expand this exception to
recognize the standing of an NRD to object to an appropria-
tion which “may result in a fully appropriated determination
by [the Department] in the future which will cause increased
costs,” as the NRD appellants allege in this case. As the
majority correctly notes, the alleged injury in fact necessary
to confer standing cannot be conjectural or hypothetical and
must be capable of redress by a favorable decision in the

 1	
      Middle Niobrara NRD v. Department of Nat. Resources, 281 Neb. 634,
      799 N.W.2d 305 (2011), citing Metropolitan Utilities Dist. v. Twin Platte
      NRD, 250 Neb. 442, 550 N.W.2d 907 (1996).
 2	
      Neb. Rev. Stat. §§ 46-701 to 46-754 (Reissue 2010 & Cum. Supp. 2012).
 3	
      Middle Niobrara NRD, supra note 1, 281 Neb. at 647, 799 N.W.2d at 315.
    Nebraska Advance Sheets
622	286 NEBRASKA REPORTS



­proceeding.4 Here, the Department’s resolution of this case will
 not require the NRD appellants to expend public funds. Even if
 the Department grants the application of the Nebraska Public
 Power District (NPPD), such grant is not a determination by
 the Department that the basin is fully appropriated. Instead, the
 effect of the resolution of this case on any subsequent deter-
 mination by the Department as to whether the basin is fully
 appropriated is completely speculative.
    Given the complexity of water regulation in Nebraska, I
 cannot endorse a legal principle which requires a court to
 predict whether a particular surface water appropriation would
 “trigger” a subsequent fully appropriated designation in order
 to determine whether an NRD has standing to object to the
 appropriation.5 No single appropriation causes a river basin to
 become “fully appropriated.” As we noted in Middle Niobrara
 NRD, the Department’s determination of whether a basin is
 fully appropriated focuses on whether the river’s surface water
 is sufficient to sustain all existing appropriations. One could
 logically argue that any appropriation, from the most senior to
 the most junior, could eventually trigger a fully appropriated
 determination in the sense that it contributes to the aggregate
 total of appropriations which could be determined to exceed
 the water supply. By accepting the NRD appellants’ standing
 argument in this case, we would essentially be saying that an
 NRD has standing to challenge any surface water appropria-
 tion, a proposition that we have previously rejected.
    Finally, it is my view that it is not the proper role of an
 appellate court to engage in the calculus of whether a river
 basin would become fully appropriated under particular fac-
 tual circumstances in advance of a determination of that
 issue by the Department. The Act requires the Department
 to annually evaluate “the expected long-term availability of
 hydrologically connected water supplies for both existing and
 new surface water uses and existing and new ground water

 4	
      See Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb. 533,
      788 N.W.2d 252 (2010).
 5	
      See Middle Niobrara NRD, supra note 1, 281 Neb. at 645, 799 N.W.2d at
      314.
                        Nebraska Advance Sheets
	                         IN RE APPLICATION A-18503	623
	                             Cite as 286 Neb. 611

uses in each of the state’s river basins” in order to deter-
mine if the basin is “fully appropriated.”6 Our role is to hear
and decide appeals from such administrative determinations,7
applying a standard of review which requires us to affirm
the Department’s factual determinations if they are supported
by competent and relevant evidence and are not arbitrary,
capricious, or unreasonable.8 Were we to engage in a stand-
ing analysis requiring that we determine whether a particular
appropriation would likely “trigger” a subsequent fully appro-
priated determination, our ability to objectively consider an
appeal from any subsequent determination by the Department
could be questioned.
   For these reasons, I agree with the conclusion of the
majority that the Department did not err in concluding that
the NRD appellants lacked standing to challenge the NPPD
application.
                             Higgins
   Unlike the NRD appellants, Higgins’ claim to standing is
based on his own water rights. Specifically, he alleges that
he holds four surface water appropriations upstream from
NPPD’s facility and that he has a pending application for
another appropriation. These allegations identify a specific
legally protectable interest. The key inquiry with respect
to standing is whether Higgins has adequately alleged that
granting NPPD’s application would cause an injury in fact to
that interest.
   Some of Higgins’ allegations fall short of the mark in this
regard. His allegation that the requested NPPD appropriation
“is contrary to the public interest” does not allege any particu-
larized injury to his interests as distinguished from that of the
public at large. And his allegations that granting the application
“may increase his property taxes” and “may adversely impact
the value of his real property, and real estate values” through-
out the basin are clearly speculative.

 6	
      § 46-713(1)(a) and (b) (emphasis supplied).
 7	
      See Neb. Rev. Stat. § 61-207 (Reissue 2009).
 8	
      See Middle Niobrara NRD, supra note 1.
    Nebraska Advance Sheets
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   But Higgins also alleges that granting the application “will
adversely impact his existing appropriations” and “will pre-
clude or otherwise increase the cost of” his pending applica-
tion for an additional appropriation. While these allegations
provide no explanation as to how the appropriation would
adversely affect Higgins’ water rights, I regard them as suf-
ficient notice pleading to preclude summary dismissal for
lack of standing. As noted in the separate dissent, we held in
Ponderosa Ridge LLC v. Banner County9 that landowners hav-
ing “water use interests to protect” had standing to challenge
an agreement which would have transferred ground water
from a Nebraska well to Wyoming. Similarly, in Hagan v.
Upper Republican NRD,10 we held that irrigators challenging a
ground water agreement between an NRD and a hog confine-
ment facility had established standing sufficient to overcome
a demurrer by alleging that the agreement would result in
depletion of an aquifer to the detriment of their own water
use interests. We noted that this holding did not prevent the
defendants from challenging the irrigators’ standing at a later
date if they were unable to prove their allegations regarding
injury in fact.
   In dismissing Higgins’ objection on its own motion, the
Department acted pursuant to a regulation which authorizes
the director to “dismiss a complaint or objection without hold-
ing a hearing when it is found there is a lack of jurisdiction or
of authority to grant the relief requested.”11 Because no hear-
ing was held and no evidence received, the Department could
assess only the facial adequacy of Higgins’ allegations with
respect to standing. But instead, the Department addressed the
merits of Higgins’ allegations without giving him an opportu-
nity to be heard on the issue.
   In an appeal from a district court’s order sustaining a motion
to dismiss a civil action, we conduct a de novo review in which
we accept all the factual allegations in the complaint as true

 9	
      Ponderosa Ridge LLC v. Banner County, 250 Neb. 944, 948, 554 N.W.2d
      151, 156 (1996).
10	
      Hagan v. Upper Republican NRD, 261 Neb. 312, 622 N.W.2d 627 (2001).
11	
      454 Neb. Admin. Code, ch. 7, § 005 (2012).
                        Nebraska Advance Sheets
	                        IN RE APPLICATION A-18503	625
	                            Cite as 286 Neb. 611

and draw all reasonable inferences for the nonmoving party.12
I would apply the same standard of review here and conclude
that Higgins’ allegations of injury in fact were sufficient as
notice pleading and that the Department erred in dismissing
him on its own motion.
   McCormack, J., joins in this concurrence and dissent.

12	
      DMK Biodiesel v. McCoy, 285 Neb. 974, 830 N.W.2d 490 (2013); Lindner
      v. Kindig, 285 Neb. 386, 826 N.W.2d 868 (2013).

   Connolly, J., dissenting.
   I dissent from the majority opinion’s holding that the appel-
lants lack standing to object to the application of the Nebraska
Public Power District (NPPD). The majority opinion ignores
evidence of imminent harm that will result from an approval
of the application. It ignores our own case law recognizing that
landowners had standing in similar cases. And it misconstrues
our case law to create inappropriate hurdles to standing.
   Under Neb. Rev. Stat. § 61-206 (Reissue 2009), the
Department of Natural Resources (Department) has jurisdic-
tion to hear and adjudicate all “complaints, petitions, or appli-
cations” in any matter pertaining to water rights for irrigation,
power, or other beneficial purposes, except where its author-
ity is limited by statute.1 The three appellants—two natural
resources districts (NRDs) and Thomas Higgins, an existing
surface water appropriator in the Lower Niobrara River Basin—
filed their objections under the Administrative Procedure Act
(APA) and title 454, chapter 7, of the Department’s regula-
tions. The APA permits parties to petition for a hearing in a
“contested case.” This means any proceeding in which a state
agency is required to determine a party’s legal rights, duties,
or privileges.2
   The Department’s regulations define adjudicative proceed-
ings to include cases to approve applications or petitions. The
regulations also define applications to include an application to

 1	
      See In re 2007 Appropriations of Niobrara River Waters, 283 Neb. 629,
      820 N.W.2d 44 (2012).
 2	
      See Neb. Rev. Stat. §§ 84-901(3) and 84-913 (Reissue 2008).
    Nebraska Advance Sheets
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appropriate water under Neb. Rev. Stat. § 46-233 or § 46-259
(Reissue 2010).3 The regulations specifically provide that a
contested case is commenced by a formal objection to an appli-
cation or petition.4 So, the Department does not claim that the
appellants did not properly request a contested hearing to have
their rights determined.
   In addition, the regulations define an “interested person” in
a contested case as one “who is or could be adversely affected
in a legally cognizable way by the outcome of a proceeding.”5
Yet under the director’s view of standing, no appropriator with
a preexisting permit can object to NPPD’s application because
even if it is approved, the appropriator would not be subject
to a call by NPPD. A “call” is a senior appropriator’s request
that the Department shut off the water rights of upstream junior
appropriators. Junior appropriators are those with a later-in-
time priority date, which is the date on which the application
to divert or otherwise appropriate a stream’s water is filed.6
The Department administers the call (closes the water rights
of upstream junior appropriators) to satisfy the downstream
senior appropriation.7
   The director reasoned that NPPD’s calls affect only upstream
junior appropriators. That is, a call by NPPD could never shut
off an upstream senior appropriator’s superior right to use
surface water. So, he concluded that only an upstream junior
appropriator with a priority date after April 2007 could have
standing to object to NPPD’s application because only such an
appropriator could be subject to a call to satisfy NPPD’s lat-
est appropriation.
   The director also determined that the NRDs lacked stand-
ing to challenge NPPD’s application. We have previously held
that affected natural resources districts have standing to chal-
lenge a fully appropriated designation for a river basin because

 3	
      See 454 Neb. Admin. Code, ch. 7, §§ 001.01C and 001.02B (2012).
 4	
      See 454 Neb. Admin. Code, ch. 7, § 002.01 (2012).
 5	
      454 Neb. Admin. Code, ch. 7, § 001.07 (2012) (emphasis supplied).
 6	
      See Neb. Rev. Stat. §§ 46-203 to 46-205 and 46-235 (Reissue 2010).
 7	
      See Middle Niobrara NRD v. Department of Nat. Resources, 281 Neb.
      634, 799 N.W.2d 305 (2011).
                       Nebraska Advance Sheets
	                        IN RE APPLICATION A-18503	627
	                            Cite as 286 Neb. 611

it triggers duties for the districts that require them to spend
public funds and levy taxes to taxpayers in their districts.8 But
the director rejected their claim that the appropriation would
trigger a “fully appropriated” designation as too speculative
to show that an actual or imminent harm will result from the
Department’s approval of NPPD’s application. I believe that
the director’s conclusions are incorrect.
   NPPD’s application to appropriate an additional 425 cubic
feet per second (cfs) of water to produce hydropower is a sig-
nificant enlargement of its previous appropriations. By way of
comparison, in setting the limits for irrigation appropriations,
Neb. Rev. Stat. § 46-231 (Reissue 2010) provides that surface
water allotments “shall not exceed one cubic foot per second
for each seventy acres of land and shall not exceed three acre-
feet in the aggregate during one calendar year for each acre of
land for which such appropriation had been made.”
   Comparing NPPD’s requested appropriation to irrigation
allotments puts its size in perspective. There are 7.48 gallons
of water in a cubic foot, or 748 gallons in 100 cubic feet.9
An acre-foot of water is a measure of volume and, under
Nebraska’s statutes, equals 43,560 cubic feet10 or 325,829
gallons of water—enough to cover an acre of land in a foot
of water. Conversion tables typically equate a flow rate of
1 cfs per day to a volume of 1.98 acre-feet per day.11 Using
this measure, a stream flowing constantly at 425 cfs carries
a volume of water equivalent to 841.5 acre-feet per day. This
is the maximum annual irrigation allotment (3 acre-feet) for
280.5 acres in a single day. In a year, a flow rate of 425 cfs is
equivalent to 307,147.5 acre-feet of water, which is the same
as the maximum annual irrigation allotment for about 160
square miles.
   It doesn’t require a math wiz to know that NPPD’s requested
appropriation is a lot of water. And, if granted, the appropriation

 8	
      See id.
 9	
      See Richard S. Harnsberger & Norman W. Thorson, Nebraska Water Law
      & Administration § 1.02 (Butterworth Legal Publishers 1984).
10	
      See Neb. Rev. Stat. § 46-228 (Reissue 2010).
11	
      See Harnsberger & Thorson, supra note 9.
    Nebraska Advance Sheets
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will have a significant adverse effect on the availability of water
for future upstream appropriations. It is true that an appropria-
tion to produce hydropower does not remove water from the
river. But like instream appropriations, NPPD’s appropriation,
if approved, is an allotment that must be satisfied before junior
appropriators can divert water from the stream.12
   Yet despite the huge volume of water that NPPD requested,
and despite a statutory mandate requiring the Department to
promptly act on an appropriation application for the develop-
ment of water power,13 the Department sat on NPPD’s applica-
tion for 5 years before publishing notice of it. Notwithstanding
its failure to act, the pleadings sufficiently show that the appro-
priation presents an imminent harm to the appellants because it
is highly likely to result in a fully appropriated determination
for the entire river basin.
   We have set out the contours of standing many times:
      To have standing, a litigant must assert its own rights
      and interests and demonstrate an injury in fact, which is
      concrete in both a qualitative and temporal sense. The
      alleged injury in fact must be distinct and palpable, as
      opposed to merely abstract, and the alleged harm must
      be actual or imminent, not conjectural or hypothetical.
      A party must have some legal or equitable right, title, or
      interest in the subject of the controversy. Finally, stand-
      ing requires that the injury can be fairly traced to the
      challenged action and is likely to be redressed by a favor-
      able decision.14
   Here, both Higgins and the NRDs have alleged sufficient
facts to show that they would be adversely affected by the
Department’s approval of NPPD’s application. Higgins alleged
that his February 2007 application for an appropriation is still
pending. But if the Department determines that the Lower
Niobrara River Basin is fully appropriated, it must place an

12	
      See Central Platte NRD v. State of Wyoming, 245 Neb. 439, 513 N.W.2d
      847 (1994).
13	
      See Neb. Rev. Stat. § 46-234 (Reissue 2010).
14	
      Butler Cty. Sch. Dist. v. Freeholder Petitioners, 283 Neb. 903, 907, 814
      N.W.2d 724, 728 (2012) (citations omitted).
                        Nebraska Advance Sheets
	                         IN RE APPLICATION A-18503	629
	                             Cite as 286 Neb. 611

immediate stay on any new appropriations, including Higgins’
request.15 In addition, Higgins alleged that the designation will
increase his property taxes to fund water management by the
local natural resources districts. As mentioned, we have held
that affected natural resources districts have standing to chal-
lenge a fully appropriated determination for that reason.16 And
under the Department’s current regulations, a fully appropri-
ated determination is not a remote possibility.
   The Department concedes that it has not amended its regu-
lations since 2011 when we decided Middle Niobrara NRD v.
Department of Nat. Resources.17 And those regulations require
it to determine that a river basin is fully appropriated if
the most junior appropriator could not divert enough surface
water to meet the Department’s minimum irrigation require-
ments for 70 acres of corn during the growing season.18 This
is the Department’s method of determining whether there is a
dependable water supply for another appropriator.
   In addressing the question of who, if not the appellants,
would have standing, the Department claimed at oral argu-
ments that an appropriator with a later priority date than
NPPD’s application date existed. Because that appropriator
would be subject to a call to satisfy NPPD’s newest appro-
priation, it would have standing to object. Leaving aside
whether the existence of an upstream junior appropriator is
plausible, NPPD’s application shows that if its appropriation
is approved, it is highly unlikely that this most junior appro-
priator could obtain enough water to dependably irrigate 70
acres of corn. If not, the river basin would be fully appropri-
ated. And this result is illustrated by NPPD’s own flow rates
at Spencer Dam.
   In NPPD’s application to use the river’s natural flow for
power, it provided a chart with the daily mean (average) flow
rates through its hydropower units at Spencer Dam for the

15	
      See Neb. Rev. Stat. § 46-714(1) (Reissue 2010).
16	
      See Middle Niobrara NRD, supra note 7.
17	
      Id.
18	
      See id., citing 457 Neb. Admin. Code, ch. 24, § 001-01A (2006).
    Nebraska Advance Sheets
630	286 NEBRASKA REPORTS



years 2004 through 2006. As the majority opinion states, NPPD
already has existing appropriations for surface water that equal
2,035 cfs. If the Department grants NPPD’s application for an
additional 425 cfs, it will have total appropriations of 2,460
cfs. But NPPD’s flowchart shows that for the 3 documented
years, 2,460 cfs was the highest average daily flow rate that
ever ran through its hydropower units and that Spencer Dam
rarely received that flow rate.
   Specifically, in 2004, there were no days that Spencer Dam
received an average flow rate of 2,460 cfs. In 2005, there were
only 4 days that the dam received an average flow rate of 2,460
cfs. In 2006, there were only 2 days that the dam received an
average flow rate of 2,460 cfs. In total, Spencer Dam received
an average daily flow rate of 2,460 cfs for only 6 days out of
3 years. So if NPPD’s appropriations had totaled 2,460 cfs dur-
ing the years 2004 through 2006, the river’s streamflow likely
would have been insufficient to conclude that enough water
was available for an upstream, junior appropriator to meet the
Department’s irrigation standards.
   It is true that the Department may not determine that the
surface water of a river is fully appropriated by comparing a
senior appropriation right to the streamflow values at a specific
diversion point or streamflow gauge.19 Its current regulations
specifically require it to use streamflow data and diversion
records to project whether the most junior appropriator could
divert sufficient water to meet its irrigation standards.20 But
under § 46-235, the Department must minimally determine
that there is unappropriated water in a stream before approv-
ing a new application to appropriate water. And if the last-
in-time appropriation would rarely have been satisfied, the
river’s streamflow likely would not have been a dependable
water source for any subsequent appropriation from 2004
through 2006.
   Moreover, in 2007, the Department closed the diversion
rights of about 400 upstream junior appropriators to satisfy

19	
      See id.
20	
      See id.
                         Nebraska Advance Sheets
	                          IN RE APPLICATION A-18503	631
	                              Cite as 286 Neb. 611

NPPD’s existing appropriations of 2,035 cfs.21 The Department
later determined that the river basin was fully appropriated
because the river’s surface water was insufficient to sustain
existing appropriations.22 We reversed and vacated that deter-
mination based on the Department’s arbitrary application of its
regulations for determining that there was insufficient water.
We did not, however, decide whether the river basin was fully
appropriated, and the Department has never revised its con-
clusion regarding the basin’s 2008 status. Nor do we have its
determinations for the years since 2008.
   But Spencer Dam sits downstream near the eastern end of the
Niobrara River.23 So the scarcity of days in which Spencer Dam
actually received an average flow rate of 2,460 cfs between
January 2004 and December 2006, and the Department’s 2007
actions support the appellants’ allegations of imminent harm.
In short, if Spencer Dam rarely receives 2,460 cfs, then the
Department’s approval of NPPD’s increased appropriation to a
total of 2,460 cfs will drastically increase the chances that in
any given year, the Department will declare the river’s surface
water to be fully appropriated. Under its current regulations,
that finding will trigger a fully appropriated designation for the
entire river basin.
   Moreover, even if the Department did not declare that
the river basin was fully appropriated, a farmer or rancher
with an existing appropriation obviously has an interest in
whether he can ever seek an additional appropriation. And
the Department’s approval of NPPD’s application will greatly
decrease the availability of water for future appropriations.
   This court has never held that a landowner with an existing
appropriation must show a definite injury to have standing to
challenge new appropriations from the same water source. Our
holdings on standing in water cases have generally been con-
fined to concluding that a political subdivision lacks standing

21	
      See id., citing In re 2007 Appropriations of Niobrara River Waters, supra
      note 1.
22	
      See id.
23	
      See id.
    Nebraska Advance Sheets
632	286 NEBRASKA REPORTS



to challenge an application when it is representing the interests
of third parties, instead of its own interests.24
   In contrast, we have explicitly recognized that landowners
with an existing appropriation can object to a later application
to appropriate water from the same water source. For example,
in Ponderosa Ridge LLC v. Banner County,25 a county, a natu-
ral resources district, and three individuals filed objections
to a corporation’s application to transfer 1,532 acre-feet of
water per year from its well in Nebraska to its pig production
facilities in Wyoming. Only two of the individuals had exist-
ing water rights. The Department denied the corporation’s
application. On appeal, we held that only the individuals
with existing water rights had standing to object. We did not,
however, require them to show that the transfer of water to
Wyoming would actually deplete the water that was available
to them.
   Similarly, in Hagan v. Upper Republican NRD,26 we held
that landowners had standing in a declaratory judgment action
to challenge a natural resources district’s allegedly illegal
agreement to grant additional ground water to other land-
owners after the district had denied the plaintiffs’ request for
a variance. The plaintiffs alleged that the defendants drew
water from the same aquifer that was underlying the plain-
tiffs’ land.
   Specifically, they alleged that “‘there is less water avail-
able for them for future requests in that the now declining
water table of the aquifer will decline further by virtue of
the withdrawal of the water by the Defendants.”27 Relying
on our decisions in Ponderosa Ridge LLC and Ainsworth
Irr. Dist. v. Bejot,28 we held that the plaintiffs’ allegation that

24	
      See, e.g., Central Neb. Pub. Power Dist. v. North Platte NRD, 280 Neb.
      533, 788 N.W.2d 252 (2010); Metropolitan Utlities Dist. v. Twin Platte
      NRD, 250 Neb. 442, 550 N.W.2d 907 (1996).
25	
      Ponderosa Ridge LLC v. Banner County, 250 Neb. 944, 554 N.W.2d 151
      (1996).
26	
      Hagan v. Upper Republican NRD, 261 Neb. 312, 622 N.W.2d 627 (2001).
27	
      Id. at 315, 622 N.W.2d at 629.
28	
      Ainsworth Irr. Dist. v. Bejot, 170 Neb. 257, 102 N.W.2d 416 (1960).
                        Nebraska Advance Sheets
	                         IN RE APPLICATION A-18503	633
	                             Cite as 286 Neb. 611

the natural resources district’s agreement would deplete the
source of water in which they held an interest was sufficient
to confer standing to object to the agreement. Their alleged
harm was obviously a threatened future injury—not a present
actual injury.
   The appellants cite all of these cases, and they are directly
on point. Yet the majority opinion fails to address them.
Instead, the opinion relies on a statement from Central Neb.
Pub. Power Dist v. North Platte NRD.29 But that reliance is
incorrect here.
   In that case, a public power and irrigation district (Central)
operated a large reservoir that was used for several purposes,
including to distribute water for irrigation and to generate
hydropower. Central objected to a natural resources district’s
proposed regulations to reduce ground water pumping in the
basin of one of its tributaries. Central argued that the reduction
was inadequate to restore the tributary’s historic streamflow. It
sought a court order reversing the natural resources district’s
decision and directing it to impose greater restrictions. The
court concluded that Central was not in the district’s territory
and that, as a surface water appropriator, it was not affected by
ground water appropriations in the district.
   On appeal, we discussed Ponderosa Ridge LLC, Hagan,
and two other cases to illustrate when a party has or has not
alleged a sufficient interest to confer standing. We contrasted
our holdings that political subdivisions lacked standing when
they do not assert their own interests with our holdings that
landowners with water interests to protect do have standing
to object. Regarding Central’s broad claim that ground water
pumping in the tributary’s basin was destroying the reservoir,
we concluded that the allegation of an injury was too attenu-
ated and that its theory of causation could not be limited to
any direct tributary. We also noted that it was unclear that
an order requiring a further reduction of ground water pump-
ing would increase the water available for Central’s reservoir
because it would first be available to the tributary’s surface
water appropriators.

29	
      Central Neb. Pub. Power Dist., supra note 24.
    Nebraska Advance Sheets
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   Our primary holding, however, was that Central lacked
standing because it was not asserting its own interests. Instead,
we concluded that it was asserting the interests of the public
or its constituents for whom it held appropriations and man-
aged water resources. In dicta, we stated that even on behalf
of its constituents, Central had not alleged an injury with suf-
ficient particularity:
      For example, even if we infer that less water is available
      to the U.S. Fish and Wildlife Service for endangered
      species, Central did not allege that the reduced amount
      of water fell short of what was required or even desir-
      able for that purpose. Nor did Central allege that reduced
      water delivery to canal operators impaired the operation
      of their canals. Similarly, although Central alleges that it
      has its own interest in generating power . . . , 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 axiomatic that any
      use of a limited resource necessarily results in margin-
      ally 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, identi-
      fied interest.30
   The majority opinion’s reliance on this italicized language
is misplaced. Whether Central had sufficiently alleged an
injury to its constituents was not a necessary conclusion to
our holding that it lacked standing because it was not assert-
ing an injury to its own interests. As we know, a case is not
authority for any point made that was not necessary to decide
the case.31
   But even if it were not dicta, the statement should not be
interpreted to require a showing of actual harm from a later
appropriation. We specifically discussed Ponderosa Ridge
LLC and Hagan as examples of when a party has alleged
a sufficient interest to confer standing. Because we did not

30	
      Id. at 543-44, 788 N.W.2d at 261 (emphasis supplied).
31	
      See Geddes v. York County, 273 Neb. 271, 729 N.W.2d 661 (2007).
                         Nebraska Advance Sheets
	                          IN RE APPLICATION A-18503	635
	                              Cite as 286 Neb. 611

disturb those holdings, the majority opinion incorrectly relies
on a single statement that is inconsistent with the rest of
the opinion. Instead, we should recognize that our concern
was Central’s failure to allege a connection between ground
water pumping in another area to its own injury. Those waters
may or may not have been hydrologically connected, but the
appropriations were certainly not from the same water source,
as in the previous cases that we cited with approval. So this
statement can only be applied to an objector with an existing
appropriation from the same water source by taking it out
of context.
   Moreover, the probable future injury that existed in
Ponderosa Ridge LLC and Hagan is also sufficient to confer
standing under the standing rules that we have adopted from
federal courts.
   Federal courts have repeatedly held that an actual or
threatened injury is sufficient to confer standing.32 And we
have repeatedly held that the alleged injury must be actual
or imminent.33 Imminent means “ready to take place: near
at hand: impending: . . . hanging threateningly over one’s
head: menacingly near.”34 It does not mean absolutely cer-
tain to occur, nor do federal courts apply it in this manner.35
These cases show that the requirements of a “threatened” or

32	
      See, e.g., Bender v. Williamsport Area School Dist., 475 U.S. 534, 106
      S. Ct. 1326, 89 L. Ed. 2d 501 (1986); Valley Forge College v. Americans
      United, 454 U.S. 464, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982); Gladstone,
      Realtors v. Village of Bellwood, 441 U.S. 91, 99 S. Ct. 1601, 60 L. Ed.
      2d 66 (1979); Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed.
      2d 343 (1975); Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d
      644 (9th Cir. 2011); Monroe Retail, Inc. v. RBS Citizens, N.A., 589 F.3d
      274 (6th Cir. 2009); Sutliffe v. Epping School Dist., 584 F.3d 314 (1st Cir.
      2009); Cooper v. U.S. Postal Service, 577 F.3d 479 (2d Cir. 2009); Doe v.
      Tangipahoa Parish School Bd., 494 F.3d 494 (5th Cir. 2007).
33	
      See, e.g., Butler Cty. Sch. Dist., supra note 14; Middle Niobrara NRD,
      supra note 7; Central Platte NRD, supra note 12.
34	
      Webster’s Third New International Dictionary of the English Language,
      Unabridged 1130 (1993).
35	
      See, generally, 13A Charles Alan Wright et al., Federal Practice and
      Procedure § 3531.4 (2008).
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“imminent” injury are related concepts. And standing and
its injury-in-fact requirements are jurisdictional rules that
we have adopted from federal courts to define those cases
that are appropriately resolved through the judicial process.36
Long before we adopted the U.S. Supreme Court’s injury-
in-fact rule in 1993,37 we had explicitly referred to an actual
or threatened injury to explain standing requirements: “‘The
questions are, does he have a private individual right involved
in controversy, is there a justiciable issue involving the right
presented to the court, and is or will that right be threatened
or violated?’”38
   Obviously, the Legislature did not intend for the Department’s
actions to go unchallenged, and § 61-206 clearly contemplates
some interested party’s having an opportunity to be heard. To
require a party in a water case to allege an actual injury, as
distinguished from the party’s own interest in the same water
source that will probably be injured, is an impossible burden:
“[W]ater use on most streams is like the federal budget. No
one really knows how much water is actually being put to
beneficial use by how many people.”39 And the Department’s
own regulations reflect this reality by recognizing that an
“interested person” is someone “who is or could be adversely
affected . . . by the outcome of a proceeding.”40
   The Department’s definition of “interested person” distin-
guishes this case from those in which we have interpreted this
term in a statute to mean a person with common-law stand-
ing.41 The statutes in those cases did not define the term, and

36	
      See, Central Neb. Pub. Power Dist., supra note 24; State v. Baltimore, 242
      Neb. 562, 495 N.W.2d 921 (1993); Mullendore v. Nuernberger, 230 Neb.
      921, 434 N.W.2d 511 (1989).
37	
      See Baltimore, supra note 36.
38	
      See Nebraska Seedsmen Assn. v. Department of Agriculture & Inspection,
      162 Neb. 781, 784, 77 N.W.2d 464, 465 (1956) (emphasis supplied),
      quoting Schroder v. City of Lincoln, 155 Neb. 599, 52 N.W.2d 808 (1952).
39	
      A. Dan Tarlock, Law of Water Rights and Resources § 5:15 at 248 (2013).
40	
      454 Neb. Admin. Code, ch. 7, § 001.07.
41	
      See, Middle Niobrara NRD, supra note 7; Metropolitan Utilities Dist.,
      supra note 24.
                        Nebraska Advance Sheets
	                        IN RE APPLICATION A-18503	637
	                            Cite as 286 Neb. 611

the question whether the regulations defined the term was not
raised. But an agency’s regulations that are properly adopted
and filed with the Secretary of State of Nebraska have the
effect of statutory law.42 So even if a probable, future injury
were not an imminent injury, the majority opinion fails to
acknowledge that the Department’s regulations would con-
fer broader standing than common-law standing. And those
regulations are consistent with our previous case law on
the subject.
   Given the legislative intent that someone have standing to
object and the Department’s own regulations, I believe that
our injury-in-fact requirement for standing should be inter-
preted to the fullest extent in water cases. I do not believe
that recognizing standing here would mean that the appellants
could object to every application for an appropriation. In most
circumstances, the Department is not even required to give
notice of an application. More important, the appellants have
standing here only because NPPD’s own application illustrates
the high probability that this appropriation would render the
river fully appropriated. A court’s impartiality is never called
into question by its observance of objective facts that confer
standing. It seems to me that ignoring those facts poses a big-
ger problem.
   Moreover, to apply our standing rules more strictly than fed-
eral courts to avoid a challenge here is particularly worrisome
because the appellants can never challenge the appropriation
once the Department approves it. The majority knows that
neither the appellants nor anyone else can challenge this appro-
priation request once it is approved. We have held that such
challenges are impermissible collateral attacks.43 So NPPD’s
appropriation will continue until abandoned or forfeited. And
each year it will significantly increase the risk that the river is
fully appropriated.
   That designation will impose duties on the affected NRDs
that will obviously affect their resident taxpayers. It will also

42	
      Middle Niobrara NRD, supra note 7.
43	
      See, e.g., In re Applications T-851 & T-852, 268 Neb. 620, 686 N.W.2d
      360 (2004).
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greatly increase the odds that even if upstream farmers or
ranchers can obtain another appropriation in the future, they
will pay NPPD for their use of the water. And because of our
collateral attack rule, the appellants’ standing to challenge a
fully appropriated designation will be meaningless.
   One more point, and I am done. We have recognized that the
stage of the litigation is an important factor in deciding stand-
ing. In Hagan, for example, the fact that the litigants were still
at the pleading stage was specifically tied to our conclusion
that the landowners had standing:
          Whether the plaintiffs will be able to present evidence
      to substantiate these allegations, either at trial or on
      hearing for summary judgment, is a matter that was not
      before the district court and is not before us. In other
      words, the defendants are not precluded from preserving
      and/or asserting a standing challenge at a later time if
      the plaintiffs are unable to prove that the defendants’ use
      of the underground water would so deplete the aquifer
      as to injure the plaintiffs’ water use interests. The plain-
      tiffs, however, have adequately pled that the depletion
      of the aquifer will injure their water use interests, and in
      reviewing a demurrer, we are required to accept this fact
      as true and not to consider the evidence that might be
      adduced at trial.44
   In another water case, we have recognized that at the plead-
ing stage, a determination of standing depends upon whether a
plaintiff has alleged an injury in fact and whether discovery is
likely to reveal evidence of that injury.45 And we have stated
that “[a]t the pleading stage, the standard for determining the
sufficiency of a complaint or petition to allege standing is
fairly liberal.”46
   The appellants correctly contend that our decisions are con-
sistent with U.S. Supreme Court precedent: “At the pleading
stage, general factual allegations of injury resulting from the

44	
      Hagan, supra note 26, 261 Neb. at 318-19, 622 N.W.2d at 631-32.
45	
      See Central Neb. Pub. Power Dist., supra note 24.
46	
      Field Club v. Zoning Bd. of Appeals of Omaha, 283 Neb. 847, 853, 814
      N.W.2d 102, 107 (2012).
                         Nebraska Advance Sheets
	                          IN RE APPLICATION A-18503	639
	                              Cite as 286 Neb. 611

defendant’s conduct may suffice, for on a motion to dismiss
we ‘presume[e] that general allegations embrace those specific
facts that are necessary to support the claim.’”47 The Court has
further stated that in determining whether a party has stand-
ing, a court should consider the legislative intent in the statu-
tory scheme.48
   The stage of the proceeding is particularly relevant here
because the Department is purported to be considering amend-
ments to its regulations. So the appellants have no way of
accurately predicting how NPPD’s new appropriation could
affect the river basin’s status if the Department grants it. But
they know what is likely to occur under the Department’s exist-
ing regulations.
   Obviously, discovery could reveal that the appellants’ chal-
lenge is without merit or that the alleged threat of harm
is remote. For instance, discovery might show that the riv-
er’s average flow rates are much greater than indicated by
NPPD’s flowchart at Spencer Dam, or that the Department has
amended its regulations in a way that makes a fully appropri-
ated determination unlikely even if the Department approves
NPPD’s application.
   But contrary to the reasoning of the majority opinion, bul-
letproof certainty is not required at the pleading stage of liti-
gation. And if a Nebraska farmer or rancher with an existing
interest in the availability of water in a stream doesn’t have
standing to object to a large appropriation from that stream,
who does?
   As the separate dissent and concurrence illustrates, the
majority’s abandonment of our standing rules and twisting
of our case law flow from the majority’s fear that recogniz-
ing standing here will open the litigation floodgates in water
disputes. That fear is unfounded. I am not contending that
the appellants should or will prevail. Nor am I contending
that every Nebraskan should have standing to object to an

47	
      Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L.
      Ed. 2d 351 (1992).
48	
      See Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S. Ct. 1114, 71 L.
      Ed. 2d 214 (1982).
    Nebraska Advance Sheets
640	286 NEBRASKA REPORTS



appropriation application. But standing is determined as it
exists when the litigation is commenced.49 So to hold that
existing appropriators do not have standing to object to an
appropriation application effectively ensures that no one has
standing to object because no appropriator junior to the appli-
cation will normally exist.
   Because the Department’s actions affect so many lives
and livelihoods, I believe this result is a mistake. The major-
ity’s holding will allow the Department to act with impunity
because its grant of new appropriations will be immune
from adversarial challenge and judicial review. The major-
ity’s opinion puts the appellants in a legal straitjacket. And
this result is not required by, nor consistent with, our previ-
ous decisions on standing in water cases or the Department’s
own regulations.
   In sum, the information submitted with NPPD’s own appli-
cation is sufficient to show at the pleading stage that the
alleged injury is imminent, not remote or speculative. But to
affirm the director’s order, the majority opinion has ignored
NPPD’s flowchart; ignored the Department’s own actions and
regulations; distorted our standing standards in a manner that
will preclude standing in many future cases; and ignored our
case law upholding standing for landowners in similar cases.
Its conclusion that the appellants’ alleged injury is too specu-
lative rests almost entirely upon a single misconstrued state-
ment made in dicta.

49	
      See id.




                In   re   P etition   of A nonymous    5,   a minor.
                                      ___ N.W.2d ___

                      Filed October 4, 2013.   No. S-13-510009.

 1.	 Abortion: Minors: Physicians and Surgeons. Generally, an abortion cannot be
     performed upon an unemancipated pregnant woman under 18 years of age unless
     a physician obtains the notarized written consent of both the pregnant woman and
     one of her parents or a legal guardian.
