High court rules for ranch in irrigation case

LINCOLN, Neb. — In a ruling that will intensify the debate over water rights as a drought grips much of the state, the Nebraska Supreme Court said Friday that a Panhandle ranch can sue irrigators for taking too much water from area streams.

The case, which was originally filed in 2002 by the Spear T Ranch near Bridgeport, accuses groundwater irrigators of depleting area streams.

The ranch claims irrigation from wells has caused Pumpkin Creek to be dry most of the year, preventing the ranch from growing hay to feed its cattle.

Spear T Ranch first obtained surface water rights to Pumpkin Creek in 1954 and argues that it has a vested property interest to water from the stream.

In arguments last year before the Nebraska Supreme Court, Spear T lawyer Tom Oliver said groundwater users don't have a vested property right in the water underlying their land, nor in the use of that water.

"State law entitles groundwater users `reasonable and beneficial use of the groundwater,'" Oliver said.

In Friday's ruling, the high court agreed with a lower court that the ranch had not stated a proper claim in its lawsuit, but said Morrill County District Judge Paul Empson should have allowed the complaint to be amended.

"A proprietor of land ... 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 of another, unless ... the withdrawal of the ground water 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," Judge William Connolly wrote.

"Whether a groundwater user has unreasonably caused harm to a surface water user is decided on a case-by-case basis."

The court also issued a caution to lower courts when they consider remedies for interference with surface water.

"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," Connolly said.

Friday's ruling said the lawsuit was not effected by a water policy law passed last year by state lawmakers because it was not written to be retroactive.

The flow in streams and rivers in Nebraska is controlled by the state, which sets water allocations for surface irrigators.

Groundwater irrigators, on the other hand, are controlled by area natural resources districts, which allocate groundwater equally to each user.

Many streams in the state rely heavily on groundwater for replenishment.

The new law requires the gathering of extensive data and performing annual evaluations of the state's 13 river basins. It also calls for restoring water flows in the over-appropriated Platte River Basin west of Elm Creek. A process to deal with potential water conflicts before lawsuits are filed also was established.

The new law enacts many of the recommendations of a 49-member Water Policy Task Force consisting of farmers, ranchers, politicians and others that met for 18 months to study the issue.

"We believe that the principles ... that the court adopted today are the same principles that the Water Policy Task Force addressed and are confident that we will be able to address the reasonable balance of the equities between surface water use and groundwater use," Assistant Attorney General David Cookson said.

A second Spear T lawsuit seeking more than $4 million in damages from the state was thrown out. That $4 million claim said the state has allowed the proliferation of too many wells along Pumpkin Creek.

The State Claims Board rejected the claim, which resulted in a lawsuit being filed.

That lawsuit was dismissed by Empson, who said the state had no duty to take action to regulate groundwater use.

That ruling was appealed to the high court, which has yet to hear arguments in the case.

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