U.S. Water News Online
LINCOLN, Neb. -- The Nebraska Supreme Court will revisit a case this month that could decide the rights of irrigators and surface water users across the state.
The high court heard arguments in the case in March, but in a rare move has agreed to listen to additional arguments on Sept. 8.
Irrigators asked the court to submit more arguments after the Legislature passed a water policy bill (LB962) in April that they say goes to the heart of the issue.
"These are public policy issues," said Harriet Hageman, one the lawyers representing a group of irrigators in the case. "It is for the Legislature to define public policy, and they have done so."
The flow in streams and rivers in Nebraska is controlled by the state, which sets water allocations for surface irrigators.
Groundwater irrigators, on the other hand, are controlled by area natural resources districts, which allocate groundwater equally to each user.
Many streams in the state rely heavily on groundwater for replenishment.
The new law will result in gathering extensive data and performing annual evaluations of the state's 13 river basins. It also calls for restoring water flows in the over-appropriated Platte River Basin west of Elm Creek. A process to deal with potential water conflicts before lawsuits are filed also was established.
The new law enacts many of the recommendations of a 49-member task force consisting of farmers, ranchers, politicians and others that met for 18 months to study the issue.
The case before the high court was filed originally filed in 2002 by the Spear T Ranch near Bridgeport and accuses groundwater irrigators of depleting area streams.
The ranch claims that irrigation from wells has caused Pumpkin Creek to be dry most of the year, preventing the ranch from growing hay to feed its cattle.
The court also is being asked to decide whether local natural resources districts have so-called "primary jurisdiction" to address such disputes before the courts do.
In friend-of-the-court briefs filed by the Nebraska State Irrigators Association, attorney LeRoy Sievers said the case "has the potential to either provide real protection to the property interests of surface water right holders or to leave such rights in very real peril."
Spear T Ranch first obtained surface water rights to Pumpkin Creek in 1954 and argues that it has a vested property interest to water from the stream.
In arguments earlier this year before the high court, Spear T lawyer Tom Oliver said "groundwater users do not have a vested property right in the water underlying their land, nor in the use of that water.
"State law entitles groundwater users `reasonable and beneficial use of the groundwater,"' Oliver said. "Reasonable and beneficial use of groundwater underlying one's land does not mean use of water which belongs to another. Surface water appropriators and groundwater users do not have equivalent rights."
A second Spear T lawsuit seeking more than $4 million in damages from the state was thrown out. That $4 million claim said the state has allowed the proliferation of too many wells along Pumpkin Creek.
The State Claims Board rejected the claim, which resulted in a lawsuit being filed.
That action was dismissed in April by Morrill County District Judge Paul Empson, who said the state had no duty to take action to regulate groundwater use.
That ruling was appealed in May to the high court, which has yet to hear arguments in the case.
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