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Republican River Surface Water Users Claims For Crop Damage Against State To Proceed to Trial

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 public purposes.

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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