Listen To This Story
Wachiska Audubon Society operates Prairie Pines Nature Preserve – a raw piece of nature in northeast Lincoln maintained for conservation and recreation. Taking a ride around the property in an electric golf cart, Executive Director Mark Brohman points out a 150-year-old cottonwood tree.
“It's enormous, and kids just love to climb it,” Brohman said.
The Wachiska Audubon Society owns and manages several plots of prairie land and helps landowners take care of conservation easements across southeast Nebraska.
“Sometimes, those landowners have no conservation background at all, or they don't have any interest in it until we explain why it's important to have these eastern tallgrass prairies,” Brohman said. “And then the light bulb will go on, and they'll say, ‘Yeah, I want to keep this property like it is.’”
Some of their prairie preservation efforts are partially funded by the Nebraska Environmental Trust – a lottery-funded pot of money for environmental conservation grants.
“We've got a three-year grant that ended, and we just started a second three-year grant on management of not only our 10 properties, but our 23 conservation easements,” Brohman said.
Those management tactics include removing eastern red cedar trees, replanting native prairie species and fencing areas for livestock grazing.
Before Brohman led the Wachiska Audubon Society, he was director of the Trust for 15 years.
“We always worked closely with applicants,” Brohman said. “We'd help them formulate their ideas and get their applications in order.”
These Trust grants have funded research, wildlife habitat restoration, environmental education, recycling programs, soil health and more. Many state parks and popular nature landmarks have used Trust funds over the years.
This year, the Nebraska Legislature voted to redirect $13.5 million from the Trust as it worked to plug the state budget shortfall. Now, a lawsuit is challenging the fund transfers.
It’s not the first time money has been pulled from the Trust. But this time, conservationists are worried more withdrawals could spell trouble for grant programs – and the strength of voter-approved laws.
W. Don Nelson, one of the lawsuit’s plaintiffs, helped create the Trust in an advisory role as chief of staff under then-Gov. Ben Nelson.
“We envisioned something enduring, a carefully stewarded resource that would benefit our grandkids’ grandkids,” Nelson said in a press release. “If we let the government drain money out of it every time the budget is short, this will be a trust in name only. I couldn't stand by and watch that happen without doing something.”
The lawsuit
The lawsuit alleges the transfers “constitute a series of unlawful appropriations and direct a series of illegal expenditures of public funds.” It asks that the court officially declare that the Legislature cannot use money from the Trust to cover other state funding needs.
The lawsuit targets five state officials, aiming to stop the transfer of funds that their positions could facilitate while in court. It was brought forward by W. Don Nelson and Jon Oberg, a former director of the Nebraska Department of Administrative Services. Lawyers from the American Civil Liberties Union and Nebraska-based Gutman Law Group are supporting them.
Oberg said state officials were playing a “shell game” with Trust funds.
“The bottom line is that the Trust is not a tool to solve our state’s budget problems,” Oberg said. “We are asking the judicial branch to check this overreach and enforce what voters decided decades ago.”
The Trust holds about $70 million.
In fiscal year 2024-2025, the Trust drew in just over $20 million from lottery proceeds and spent about $15 million on 46 grant awards (plus about $300,000 for operational expenses).
In the original budget proposed by Gov. Jim Pillen, about $41 million of Trust funds were set to be moved elsewhere.
Grantees received letters in late January stating distribution of grant funds would be temporarily paused due to “uncertainty” with the governor’s budget proposal.
Nebraska Sen. Tom Brandt and others proposed a constitutional amendment dictating that Trust funds could only be used for grants. But it didn’t make it onto the Legislative agenda until the last day of the session, and by then, there weren’t enough votes to pass it.
“The night before, we had 33 votes, and then when it came up the next day, the governor's people had flipped enough people that we didn't have 30 anymore,” Brandt said. “Rather than waste everybody's time, we all kind of agreed that we would pull the bill.”
Brandt said most of the grant money within the Trust is already spoken for.
“Over the years, millions and millions of dollars have been invested into conservation programs across all 93 counties in the state of Nebraska. [Organizations] have to match it dollar for dollar, and a lot of these programs are multi year programs,” Brandt said. “The governor's gone, ‘Well, you don't need $70 million, why is that sitting there? We can use $40 million.’ What he didn't understand is that $40 million of that was already committed. As soon as the receipts came in, they would send the money out to those groups.”
The Legislature’s final budget settled on a $7.5 million transfer to the Water Resources cash fund and $6 million to a marina renovation project at Lewis & Clark Lake – $13.5 million total. The lawsuit argues those two transfers are unlawful because the projects are not specifically conservation related as state statute says Trust funds must be used for.
The marina project will add boat ramps and improve recreation space at the lake, and the Water Resources Cash Fund is focused on projects such as groundwater management, streamflows and water conservation.
Brohman said similar projects have been funded by the Trust before, but it’s up to a court to decide if the marina upgrade is classified as a conservation project.
“Even though we have paid for bank stabilization and for deepening of lakes and dredging of lakes, it was strictly for habitat in those cases,” Brohman said. “It was not for fishermen access or boat ramps or things like that. So they've definitely stretched it. And then the Department of Water Resources – some of that money is going for administration – which, I think, clearly by statute and the constitutional verbiage, [Trust funding] was not to go to administrative costs or agency costs.”
Money was pulled from the Trust even when Brohman was directing it between 2006 and 2021, but he said the amounts are getting larger.
“Slowly, it's been eroded over the years,” Brohman said.
Oberg filed a successful lawsuit against $1.8 million in Trust funds being used for ethanol gasoline blender pumps in 2020.
In 2025, the Legislature transferred about $15 million from the Trust to soil and water projects.
“This time around, it looks as though it’s going to be a permanent kind of thing,” Oberg told Nebraska Examiner last May. “This will open up the spigots so [trust funds] can go to all kinds of different purposes.”
The will of voters
The Nebraska Environmental Trust was established in 1992 when Nebraska voters approved a state lottery. Subsequent state legislation allocated about half of Nebraska Lottery proceeds to the Trust. In 2004, voters approved a constitutional amendment to earmark lottery funds for the state fair, changing the amount of lottery funds the Trust received to 44.5% of proceeds.
That voter-approved amendment guaranteed in the Nebraska Constitution that lottery proceeds would go to those programs – as well as education and gambler’s assistance.
“I used to tell people – I can't remember the exact number now – but when you buy a $1 scratch ticket, 12 cents was going to the environment, 12 was to the schools, and like a nickel was going to the state fair,” Brohman said. “I told people, even when you're losing, you're still putting money into a good cause.”
Transferring funds out of the Trust might violate the will of voters, the lawsuit alleges.
“Some people say – people that play the lottery – people are willingly spending money on that, and they know that the money was going to the Nebraska Environmental Trust, and to education, and to the state fair, and to problem gambling. Well, now they don't know where that money might be going to,” Brohman said.
Changes to voter-approved measures have been a sore spot in Nebraska politics this year. Passed ballot measures on minimum wage, paid sick leave and medical marijuana have been revised or stalled by some in state government.
The Legislature can make changes to voter-approved measures with a two-thirds majority vote. A petition for a new ballot initiative – called Respect Nebraska Voters – proposes a fourth-fifths supermajority for any changes.
Constitutional amendments – including any changes – can be referred to voters for approval on the ballot, but can only be enacted if voters approve them.
Lottery sales have also dipped – about 16% between 2024 and 2025 – leaving less revenue for the programs they fund.
“They get it from the lottery, and they get it from the scratch tickets, and so those revenues will probably continue to go down because of casino gambling and sports betting,” Brohman said.
The Trust is also giving out fewer grants, he said, due to increased administrative requirements for applicants.
“The board tightened up regulations, made it more difficult, and people stopped applying for grants,” Brohman said. “They just felt that they weren't given a fair shake, and so they stopped applying.”
Brohman said the outcome of the lawsuit could determine the future of the Trust – and those who use its funds to keep Nebraska beautiful.
“I do know the Trust now is trying to get back to the trust of old – that is to try to make regulations that are workable and applications that are workable, and try to work with applicants,” Brohman said. “We're hoping that someday it gets back to that history again.”