Lawsuit over water plans is dismissed

Imperial, Neb. -- A lawsuit filed by Frenchman Cambridge Irrigation District challenging water-management plans approved by the Nebraska Department of Natural Resources (DNR) and NRDs in the Republican Basin was dismissed Thursday.

The surface-water irrigation district based in Cambridge argued that Integrated Management Plans (IMPs) approved by DNR and the NRDs violated the Republican River Compact, prevented more surface water use, denied it equal protection of the law and due process, and burdened interstate commerce. Furnas County District Court Judge James E. Doyle, IV, denied DNR's and the NRDs' motion to dismiss for lack of jurisdiction, but granted the NRDs' and DNR's motion to dismiss for the irrigation district failing to state a cause of action. The irrigation district will not have an opportunity to amend its complaint.

The irrigation district's claims "all relate to the conclusory claims that the IMPs 'permit excessive pumping of groundwater' or that the IMPs permit 'excessive consumptive use of waters in the Republican Basin'," Doyle wrote in his 19-page order of dismissal.

"Such claims are opinions and not factual allegations," the order continues. "Further, such claims overstep and ignore the purpose of the legislatively designed method for Nebraska's compliance with the Republican River Compact and the Supreme Court decrees enforcing the compact. The GWMPA (Groundwater Management and Protection Act) is clearly designed to provide DNR and the NRDs with authorities to conjunctively manage surface and groundwater to comply with the compact requirements."

In its lawsuit, Frenchman Cambridge Irrigation District didn't present facts to support its argument that DNR and the NRDs acted unreasonably in their efforts to comply with the compact.

After struggling to comply with the compact in 2005 and 2006, the NRDs and DNR have successfully maintained compliance with the compact using management actions outlined in the IMPs. A 2015 decision by the U.S. Supreme Court upheld Nebraska's compact compliance plans as expressed in IMPs, turned down Kansas's request to shut down irrigation on almost half the irrigated acres in the Republican basin in Nebraska, and denied Kansas' demand to receive $70 million from Nebraska.

The decision Thursday comes on the heels of three other lawsuit dismissals in recent months. In May, two lawsuits filed by Frenchman Cambridge Irrigation District water users alleging that DNR improperly administered surface water for the purposes of maintaining compliance with the Republican River Compact in 2013 and 2014 was dismissed. The water users had sought a reported $219 million in damages. The decisions have been appealed to the Nebraska Supreme Court.

Last month, a lawsuit filed by surface water irrigators in the McCook area who claimed they were harmed by DNR's administration of surface water for compact compliance was dismissed. The Cappel family argued, among other points, that water administered away from them for compact compliance was their property. Judge Doyle ruled that surface water appropriators acquire rights to use water, but don't own it, and the usage right can be taken away when it is in the public's best interest. In this case, the public interest was maintaining compliance with the compact.

The order in the Cappel case has also been appealed to the Nebraska Supreme Court.