A landmark lawsuit by surface water irrigation farmers and the Republican
River Basin will proceed to trial. Judge James Doyle IV issued his ruling
in favor of the farmers, denying the State Department of Natural Resources
(“DNR”) motion to dismiss the case. The farmers contend the
State took surface water that was actually available for them to use for
2013 crop production away from them and gave it to Kansas.
The farmers do not contend that the state lacked the authority to give
the water to Kansas. They claim that since they have priority rights to
the water, the State decision to take it requires payment of “just
compensation” in the same way a States taking of land requires payment
to a private owner whose property is taken for road construction or other
The Court noted that the farmers contend specific water, identified by
quantities and locations, was available but taken when the State ordered
it to bypass inflows to irrigation ditches. As a result, farmers along
with the Frenchmen Cambridge Irrigation District canals received little
or no irrigation water in 2013. They were prevented from planting crops,
or their crops failed as a result.
Four individual farmers brought the case on behalf of a group of about
150 farmers who use the Frenchmen Cambridge District (“FCID”)
canals. Approximately 42,000 acres are irrigated by FCID facilities.
The lawyer for the farmers,
Dave Domina of Domina Law Group pc llo said his clients are “very excited by
the favorable ruling. This means they have a real chance to get back the
crop income they lost in 2013.” Domina said “State liability
for taking surface water gives life to long under-used provisions of the
Nebraska Constitution governing the conservation and use of the State’s
most precious natural resource.”
In a 2nd ruling, the Court denied a request that the DNR be required regulate groundwater
pumping so it does not interfere with the natural flow of groundwater
into the Basin’s streams. The farmers contend the waters of the
Republican Basin cannot be given to groundwater users on a priority basis
by allowing them to pump so much as to dry up streams and defeat priority
water use rights.
Domina said, this second part of the ruling was expected. “We want
to be in a position to make the argument to the Supreme Court in due course.”
View the order here.
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