Water. Many battles have been fought over differing opinions on how to allocate
this finite resource. Irrigation is a huge worry for farmers in Nebraska
and throughout the United States, and Domina Law Group is committed to
fighting for farmer's rights.
In 2013, the state of Nebraska sent surface water to Kansas in compliance
with the Republican River Compact, bypassing state irrigators.
In a lawsuit filed by David Domina and Megan Mikolajczyk on behalf of the irrigators, the plaintiffs allege that, while the state
did have the right to take the water for a public purpose, the state is
required to compensate the farmers for damages.
The Attorney General disagrees. While the Domina Law Group is advocating
that the plaintiffs' right to use the water is superior to the state's
use of the water, Attorney General Jon Brunig wrote in his motion to dismiss
brief that the state's use of the water per obligations set forth
in the Republican River Compact is superior. Brunig also wrote that the
state should not be required to pay damages to the irrigators because
the state's use of the water came through adherence to a binding compact.
Usage Rights vs. Property Rights
Domina Law Group, in the brief written on behalf of plaintiffs, cites the
Nebraska Constitution Section 21, Article 1 which states that the state
of Nebraska cannot take or damage a Nebraskan's property for public
use without compensating them. The question then arises – does this
groundwater fall into the category of property?
The state is claiming this is a usage right, not a property right, and
Mikolajczyk refer to this as an incident of "inverse condemnation." The
state of Nebraska took no initiative to appraise and put a value on the
farmers' property rights. Conversely, the state says it has no authority
to initiate condemnation proceedings on water, and compensation is only
offered to landowners whose property has been condemned.
We will stand up in Furnas County District Court this Wednesday to debate
the state on this issue.