Imperial Republican

    For months, irrigators-both groundwater and surface-have anxiously awaited a ruling from the Nebraska Supreme Court on the Spear T Ranch case in western Nebraska.
     On Friday, the ruling came down.
     At question was whether Spear T, situated near Bridgeport, was damaged by groundwater users near the Pumpkin Creek. Spear T claimed the groundwater use drained water from the creek and deprived them use of their surface water appropriation from the creek.
     Their initial claim against groundwater users was thrown out of court by a lower court. The case was then appealed to the Nebraska Supreme Court.
     The court heard oral arguments on the case in March, 2004, but allowed additional briefs and arguments after the passage of LB 962 by the Legislature last year.
     Ultimately, LB 962 had no direct relation on this case.
    Suit can go forward
     The court ruled that while Spear T's previous complaint seeking damages was dismissed, it could be allowed to amend the complaint and take the suit forward in a lower court.
     However, the high court also outlined provisions of proof that Spear T must show in order to claim damages, with emphasis on what constitutes reasonable use by an irrigator.
     The high court said the determination of reasonable use will be determined on a case-by-case basis.
     The basis for the high court's test comes from a Restatement of Torts from 1979.
     The Restatement states in part that:
     (1) A proprietor of land or his grantee who withdraws ground-water from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water by another, unless:
    (a) The withdrawal of ground- water unreasonably causes harm to a proprietor of neighboring land through lowering the water table or reducing artesian pressure,
    (b) The withdrawal of ground- water exceeds the proprietor's reasonable share of the annual supply or total store of ground- water, or
    (c) The withdrawal of the groundwater has a direct and substantial effect upon a watercourse or lake and unreasonably causes harm to a person entitled to the use of its water.
     The court also developed factors on determining reasonable use of water. These included:
     (a) The purpose of the use,
     (b) The suitability of the use to the watercourse or lake,
     (c) The economic value of the use,
     (d) The social value of the use,
     (e) The extent and amount of harm it causes,
     (f) The practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other,
     (g) The practicality of adjusting the quantity of water used by each proprietor,
     (h) The protection of existing values of water uses, land, investments and enterprises, and,
     (i) The justice of requiring the user causing harm to bear the loss.
     The court also said lower courts should be cautious when considering remedies for interference with surface groundwater.
     "For example, because the recharge of a stream that has dried up because of well pumping could take years, an injunction against pumping might only serve to deprive everyone in a water basin. Such a remedy would be unreasonable and inequitable," Justice William Connolly wrote.
     He also gave courts the flexibility to allow a surface water irrigator to drill a well to replace stream water, even though a moratorium may be in effect.
    Views on the ruling
     Jasper Fanning, manager of the Upper Republican NRD, said the ruling sets some guidelines and standards.
     One of those is that groundwater use is not subject to prior appropriation of surface water.
     The opinion also noted that shutting down groundwater wells would not be a benefit, he said.
     Steve Smith of Imperial, founder of WaterClaim, felt the ruling was reasonable and favorable for groundwater users.
     In NRDs with allocations, he predicted it will be difficult for surface water users to prove unreasonable use.
     Don Adams of Lincoln, executive director of Nebraskans First, an organization formed to protect groundwater users, saw no threats from the high court ruling.
     He concurred with Fanning, noting the court has set forth standards on which to base decisions, adding that it will be done on a case-by-case basis.
     "This makes sense," Adams said. It also offers the remedy of allowing surface water users to drill a well to replace surface water.
     While Spear T can still take the case back to court, Adams said section C of the restatement has set an "extremely tough standard to prove."
     A key provision in that section relates to the unreasonable use of water.
     Fanning also noted that while the ruling acknowledged property rights to surface water use, it did not give the user ownership of that water.
     Assistant Attorney General David Cookson told the Associated Press that the principles the court adopted follow the same principles addressed by the Water Policy Task Force in developing LB 962.
     He added he is "confident that we will be able to address the reasonable balance of the equities between surface water use and groundwater use."
     Commenting on the ruling at the state NRD's legislative conference, Roger Patterson said he had nightmares about what the ruling could bring.
     Patterson, head of Nebraska's Department of Natural Resources, said he feared the high court would rule that Nebraska would have to blend surface and groundwater into one system to determine priority water rights.
     The court didn't do that, which Patterson said was the most important part of the decision.