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court rules for ranch in irrigation lawsuit case By Robert Pore robert.pore@theindependent.com Publication Date: 01/22/05 A Nebraska Supreme Court decision Friday that a Panhandle ranch can sue irrigators for taking too much water from area streams could have implication for the Central Platte Natural Resources District, said NRD manager Ron Bishop. "If the court had ruled that groundwater uses could be regulated on a 'first in time, first in right,' it could have had quite an impact on the Central Platte because most of our wells went in after a lot of surface water projects were already there," Bishop said. "That could have made them junior, too, and surface water rights could have called for regulation of the river and shut off groundwater uses." The case, which was originally filed in 2002 by the Spear T Ranch near Bridgeport, accuses groundwater irrigators of depleting area streams. Spear T Ranch claimed its priority surface water rights in Pumpkin Creek (a North Platte River tributary in the Southern Panhandle) were "taken" when upstream wells pumping from hydrologically connected groundwater caused the creek to go dry. The court rejected the idea that groundwater should be regulated according to the "first in time, first in right" doctrine that governs surface water rights. It remanded the case to the District Court of Morrill County, saying that Spear T Ranch may have a claim under tort law. "It will take a while to sort through the implications of the decision, which is a mixed bag," said Keith Olsen, president of the Nebraska Farm Bureau. "Farm Bureau does not believe "first in time, first in right" should apply to groundwater, so we are pleased with that portion of the decision." Olsen said the decision also provides a possible arena for surface water users to seek redress. "However, we hope that people who are affected by this issue will work together under the mechanisms provided in LB 962 and by using integrated management plans to resolve matters outside of the courts," he said. 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. 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. Bishop said the decision was not just favorable for agricultural groundwater users, but also for others who use groundwater resources, such a municipality or industrial user. 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 Associated Press contributed to this story.
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