The State of Nebraska must now face a 2nd class action lawsuit by Republican River Basin surface water irrigators.
On October 30, four southwest Nebraska farmers sued the State for damage
to their 2014 crops. They contend the State took surface water they had
a priority right to use under the law, and left them high and dry.
In late September, District Judge James Doyle IV ruled in favor of the
farmers who sued the state for 2013 crop losses. The farmers contend water
was available in the lakes and tributaries of the Republican River for
their surface water irrigation needs. They concede that the State had
the power to take the water from them and allow others to pump.
But, since they had prior use of rights, they contend the State must pay
for the crops they could not grow.
The four farmers, Greg Hill, Brent Coffey, James Uerling and Warren Schaffert,
brought both the original case and the new one on behalf of all surface
water irrigators who use water out of the Frenchmen Cambridge Irrigation
District. The Complaint says crops on more than 42,000 acres in each year
are at stake. Their Complaint may be read
The plaintiff surface water irrigation farmers are represented by lawyers
David Domina and
Megan Mikolajczyk of Domina Law Group pc llo, Omaha NE.
water law gives surface water users priority rights depending on when surface waters
obtained appropriation rights, years ago. No such rules exist for groundwater
consumption. For years, Nebraska law treated surface water and groundwater
as though they were completely different – totally disconnected.
All that changed when the United States Supreme Court recognized that the
surface and ground water of the Republican River Basin is "hydrologically
interconnected", and the Interstate Compact applies to both kinds
of water in the Basin.
Nebraska has largely allowed groundwater use to continue without change.
But it shut off the flow of surface water into federally owned lakes and
reservoirs on which surface water irrigators depend. They use ditches
and canals to get water for crops. By diverting water away from the lakes,
ditches and canals, the State took away the source of irrigation to raise
crops. Farmers say the State must pay for the consequences.
Over strenuous objections by the State in the 1st case involving 2013 crop losses, the District Court agreed that the farmers
are entitled to proceed for damages. The new lawsuit uses the same arguments
allowed by the Court for 2013. It applies those points to damages sustained in 2014.