Supreme Court Orders State to Reconsider Farmers’ Claims in Niobrara Dispute
The Nebraska Department of Natural Resources must consider farmers’ and ranchers’ claims that a public power district lost its rights to Niobrara River water by failing to exercise them for decades, the Nebraska Supreme Court ruled Friday.
The decision was another victory for the farmers, who sued when the department ordered them to shut off their irrigation pumps in 2007 because the Nebraska Public Power District wanted to exercise its senior water rights. About 400 irrigators were affected by the department’s action.
NPPD said it wanted the water to produce power at the 80-year-old Spencer Dam, which it owns. The dispute arose after years of drought reduced the region’s water supply.
Nebraska law says that when it comes to water, “the one first in time is first in right.” But the law also sets up a priority system, and irrigators take higher priority than the power company. So even though the farmers received their rights after NPPD, they can use the water first if they want it, but they have to pay the power company.
Upset at having to pay for water, the farmers and ranchers cited a 50-year-old Nebraska Supreme Court ruling in arguing that the power district gave up the water rights it acquired in the 1940s by not exercising them before 2007 and failing to object to any of the applications of other water users over the decades.
NPPD disagreed, saying it has used water yearly to churn turbines at the hydroelectric dam near Spencer, Neb.
In 2009, the state Supreme Court found that state water officials were wrong in dismissing irrigators’ challenge to NPPD’s water rights claim without a hearing. The department subsequently held a hearing, but refused to hear, among the irrigators’ litany of arguments, the claim that NPPD had forfeited its senior rights to the river’s water because it had not exercised them for about 50 years.
In its opinion Friday, the state’s high court found that the department should have considered that argument and ordered the Natural Resources Department to go back and do so.
“We expect the evidence to show we have not abandoned or forfeited any water rights on the Niobrara River and we’re looking forward to the rehearing,” said NPPD spokesman Mark Becker.
LeRoy Sievers, the department’s general counsel, declined comment.
Donald Blankenau, a Lincoln attorney for some of the farmers and ranchers, said they have tens of thousands of dollars at stake in the decision.
He said the farmers had to have water for irrigation, so they made a claim in Boyd County District Court. The court ordered them to pay NPPD more than $47,000 to secure their water rights for the next 20 years.
If the DNR rules in their favor and cancels the utility’s water rights, they will get a refund, he said.