Judge dismisses class action suit brought by surface water irrigators against DNR
By Russ Pankonin
The Imperial Republican
Furnas County District Judge James E. Doyle, IV dismissed a class action suit last week brought against the Department of Natural Resources (DNR) by surface water irrigators in the Frenchman-Cambridge Irrigation District (FCID).
The irrigators claimed their surface water appropriation rights were taken by DNR after the department issued compact call notices in 2012 and 2013.
The irrigators said DNR took the water without a formal condemnation process and without any just compensation for the taking.
Under a compact call, the surface water irrigation districts are not allowed to capture and store any water in the stream until the order is lifted.
That limited the amount of surface water available for irrigation in those years.
The State of Nebraska filed the motion for dismissal on two different fronts: that the state has sovereign immunity in this situation; and, that the irrigators don’t have a claim on which relief can be granted.
Judge Doyle ruled the state did not have sovereign immunity in this case. However, he did uphold the state’s position that the defendants didn’t have a legitimate claim for relief.
It was on that basis that he dismissed the suit.
The irrigators have until April 23 to file an amended claim. If they do, then the state must answer within 20 days.
Compact trumps water rights
Doyle ruled that while the surface water irrigators held appropriation rights to the stream water, the 1943 compact between Nebraska, Kansas and Colorado takes precendence over those rights.
He said compact subordinates the irrigators’ appropriation rights in order to satisfy the compact delivery terms.
The fact that 1943 compact predates formation of FCID in 1946 “makes this result even more manifest,” Doyle wrote.
He also indicated the appropriation rights were only a right to use the water, not a property right, which removed an element necessary for compensation.
He said DNR’s compact call notices were a regulatory action under the state’s police power and not eminent domain.
Under the compact, DNR must determine how much water the state must deliver to Kansas. Thus, any water that must pass to Kansas is not water available for appropriation to surface rights holders.
Because this water was not available in the first place due to the compact call, Doyle said DNR’s actions did not represent a “taking” of the water from surface water irrigators in the FCID.