ELR Citation: ELR 21615
No(s). 93-2084 (8th Cir. May 4, 1994)

Applying Nebraska law, the court holds that the instrument creating the Platte River Whooping Crane Maintenance Trust authorizes the trust to participate in Federal Energy Regulatory Commission (FERC) relicensing hearings for two hydroelectric projects on the Platte River and in litigation involving the allocation of water rights among Colorado, Nebraska, and Wyoming. The court first holds that the trust declaration's authorization of litigation directly related to the trust administration permits litigation directed toward maintaining adequate water flows into the whooping crane habitat of the Big Bend area of the Platte River to preserve the vitality of the habitat. As a result of the trust's participation in the FERC relicensing hearings, FERC concluded that interim measures, including minimum instream flows, were necessary to prevent irreversible damage to critical habitat on the Big Bend area of the Platte River pending formal relicensing of the hydroelectric projects. Moreover, the trust's participation in litigation involving the allocation of water rights among Colorado, Nebraska, and Wyoming was properly limited to the goal of preserving migratory bird habitat in the Big Bend area of the Platte River.

The court next holds that the trust declaration authorizes the trustees to counteract through litigation the depletion and degradation of critical crane habitat whether or not that depletion is traceable to the Grayrocks Dam and Reservoir Project, even though the trust was established by a settlement agreement in a suit to stop construction of the Grayrocks Dam and Reservoir on the Laramie River in Wyoming. The trust's purpose of maintaining and preserving habitat in the Big Bend area would be thwarted were the trust to be prohibited from participating in litigation concerning actual or potential water loss attributable to sources other than the Grayrocks Project. The court then holds that a provision in the trust declaration that addresses the manner in which the trustees may handle the initial trust principal does not effect the scope of the trustees' authority to engage in litigation so long as they do not violate the restrictions imposed on their ability to invade the trust principal. Finally, the court holds that a provision in the trust declaration that requires the trust to consult with state and federal officials when deciding what activities to pursue does not require the trust to litigate only in agreement with Nebraska state officials' positions.

[Appellate briefs in this action are digested at PEND. LIT. 66293.]

Counsel for Plaintiff
L. Steven Grasz
1650 Farnam St., Omaha NE 68102
(402) 471-2682

Counsel for Defendants
Mark L. Laughlin
Laughlin, Peterson & Lang
11306 Davenport St., Omaha NE 68154
(401) 330-1900

Before Wollman and Loken, JJ.