State Supreme Court upholds dismissal of water suit against DNR

    In an opinion released Friday, March 10, the Nebraska Supreme Court upheld the district court dismissal of two water suits brought against the Nebraska Department of Natural Resources (DNR).
    Water users in the Frenchman Cambridge Irrigation District (FCID) lost their appeal of the dismissal of the suits by Furnas County District Court Judge James E. Doyle IV in May 2016.
    The suits were filed by four water users in the FCID as a class action suit—one for 2013 and one for 2014.
    The complaints claimed the surface water users in the district were harmed when DNR issued closing notices on river flows for compact compliance purposes in 2013 and 2014.
    In their appeal, they contended their water rights were superior to those of the Republican River Basin Compact.
    They also added that DNR’s failure to regulate groundwater depleted available stream flow, which represented a “taking” of water.
Compact counts
as federal law
    Writing for the court, Chief Justice Michael Heavican said the surface water rights do not supersede the Compact.
    “We conclude that the appropriators’ rights to use the water are subject to the Compact and are thus not a compensable property interest when the right to use is limited to ensure Nebraska’s compliance under the Compact,” Heavican wrote.
    He continued, “The U.S. Supreme Court held that the Compact, having received Congress’s blessing, counts as federal law.
    “As federal law, the allocations set forth under the Compact are the supreme law in Nebraska and the DNR must ensure Nebraska remains within its allocation under the Compact. Therefore, the appro-priators’ right to use water is subject to the superior obligation of the state to ensure compliance with the Compact.”
    The water users, who are represented by David Domina of Omaha, contended DNR’s closings represented a permanent physical invasion of their property.
    They also claimed DNR’s regulation “deprives them of all economically beneficial use of that property.”

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