Cappel Court Ruling

Cappel Court Ruling

Thursday, November 3, 2016 - 9:15am

A lawsuit filed by irrigators in the McCook area that claimed they were wronged by the state’s administration of surface water for Republican River Compact compliance was recently dismissed.

In the lawsuit against the state Department of Natural Resources (DNR), the Cappel family claimed that DNR unlawfully took their water and violated their rights by making surface water users bear the entire burden of complying with the compact during the 2013, 2014, and 2015 compact call years. Hitchcock County District Judge James E. Doyle, IV, ruled that the state lawfully administered surface water when it limited Nebraska’s access to surface water for Kansas’ benefit so that compact compliance would be achieved.

The Cappels claimed that water administered away from them by DNR was their property.

“The water users cannot merely assert ownership of a ‘…vested property right’ and without more, be entitled to pursue compensation for a ‘taking,’” according Judge Doyle, “’The appropriator of the waters of a stream acquire a right to the use of such water for beneficial purposes, but does not acquire ownership of such water.’”

Judge Doyle found that the water users have a right to use the water when it is available but that right can be taken away when it’s in the public’s best interest. In this case the public interest was to maintain compliance with the Republican River Compact.

The Nebraska Constitution “provides that the right to divert inappropriated water shall never be denied ‘except…when such denial is demanded by the public interest,’” Judge Doyle stated, “the Nebraska Legislature has the authority to define through statutes, the public interest.”

The public benefits from Nebraska staying in compliance. Another claim made by the Cappel family in the lawsuit is that DNR didn’t regulate groundwater users.

The Cappels alleged the DNR is “allowing excessive groundwater pumping throughout the Basin.” By allowing this excessive pumping, Cappel also alleged “that as ‘surface water appropriators’ they were ‘…forced to bear the entire burden of Compact compliance.’” They claimed that while they received closing notices, groundwater users were allowed to continue pumping water.

There are two separate systems in Nebraska for administering water resources. The Supreme Court ruled that DNR “regulates surface water appropriators…and groundwater users are statutorily regulated by natural resource districts through the Nebraska Groundwater Management and Protection Plan.”

“DNR had no independent authority to regulate groundwater users or administer groundwater rights for the benefit of surface water appropriators,” according to Judge Doyle. “If DNR does not have the power or the duty to regulate groundwater, then an alleged failure to exercise such nonexistent power or duty does not give rise to…a violation of due process rights.”

“The right held by the water users are subject to the duties of the State of Nebraska under the Compact,” Judge Doyle ruled. Doyle recently dismissed another, similar lawsuit from water users within Frenchman Cambridge Irrigation District. Yet another lawsuit from water users within Nebraska Bostwick Irrigation District has not been ruled upon.