The State of Nebraska must now face a 2nd class action lawsuit by Republican River Basin surface water irrigators.
On October 30, four southwest Nebraska farmers sued the State for damage to their 2014 crops. They contend the State took surface water they had a priority right to use under the law, and left them high and dry.
In late September, District Judge James Doyle IV ruled in favor of the farmers who sued the state for 2013 crop losses. The farmers contend water was available in the lakes and tributaries of the Republican River for their surface water irrigation needs. They concede that the State had the power to take the water from them and allow others to pump.
But, since they had prior use of rights, they contend the State must pay for the crops they could not grow.
The four farmers, Greg Hill, Brent Coffey, James Uerling and Warren Schaffert, brought both the original case and the new one on behalf of all surface water irrigators who use water out of the Frenchmen Cambridge Irrigation District. The Complaint says crops on more than 42,000 acres in each year are at stake. Their Complaint may be read HERE.
The plaintiff surface water irrigation farmers are represented by lawyers David Domina and Megan Mikolajczyk of Domina Law Group pc llo, Omaha NE.
Nebraska water law gives surface water users priority rights depending on when surface waters obtained appropriation rights, years ago. No such rules exist for groundwater consumption. For years, Nebraska law treated surface water and groundwater as though they were completely different – totally disconnected.
All that changed when the United States Supreme Court recognized that the surface and ground water of the Republican River Basin is "hydrologically interconnected", and the Interstate Compact applies to both kinds of water in the Basin.
Nebraska has largely allowed groundwater use to continue without change. But it shut off the flow of surface water into federally owned lakes and reservoirs on which surface water irrigators depend. They use ditches and canals to get water for crops. By diverting water away from the lakes, ditches and canals, the State took away the source of irrigation to raise crops. Farmers say the State must pay for the consequences.
Over strenuous objections by the State in the 1st case involving 2013 crop losses, the District Court agreed that the farmers are entitled to proceed for damages. The new lawsuit uses the same arguments allowed by the Court for 2013. It applies those points to damages sustained in 2014.