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November 15, 2005 The Water Report Nebraska Damage Claim Defense Arguments Diversions Stopped Interconnection Acknowledged Court's Steps Tort Law Significant Position of the Parties: Spear T Ranch (Appellants) In essence, Spear T Ranch argued that the groundwater users had damaged its right to use the water out of Pumpkin Creek and that it was entitled to compensation and an injunction. In particular, Spear T Ranch argued that the defendants had converted to their own use the water that it would otherwise receive. This argument was based upon the common law theory of conversion. Further, it was argued that if conversion did not exist then trespass would be the available common law remedy. The Groundwater Users (Appellees) The defendants, in their consolidated brief, presented several arguments. First, they argued that surface water use is administered pursuant to the prior appropriation doctrine and that groundwater is governed by the correlative use doctrine as established in Nebraska. Thus, the argument was that there were separate administrative mechanisms that regulated the use of surface water and groundwater. Secondly, it was argued that the Legislature had adopted groundwater management statutes regulating the use of groundwater and that the plaintiff's recourse was to bring its concerns before the local natural resources district. Further, it was argued that the local natural resources district had adopted a groundwater management plan and that each of the groundwater users had registered each of their wells and thus had not engaged in any illegal act. Finally, it was argued that Spear T Ranch could not successfully pursue a claim of conversion because it did not own the water but merely had a right of use. Attached to Appellees' Brief were rules and regulations of the North Platte Natural Resources District establishing the Pumpkin Creek Management sub -area. Additionally, for the water year 2002- 2003 (10/1/02 through 9/30/03), 56,450 AF of water was allocated for use by groundwater irrigators in the sub -area with no more than 24 acre inches allowed to be pumped in any year by any groundwater irrigator. Under the plan, no water was allocated for surface water use and apparently Spear T Ranch was unable to divert any surface water for its use during that water year. LB 962 (Legislative Bill) was adopted by the Nebraska Legislature in 2004, after a 49- member water policy task force appointed by the governor in 2002 proposed the legislation. LB 962 was intended to integrate the management of surface and ground water. The extremely lengthy Bill was the most significant legislation in this area of the law in Nebraska at least since 1966. Supreme Court Decision Judge Connolly wrote the decision for a unanimous court. After reviewing the physical circumstances of the case, he noted that there are circumstances in which groundwater contributes to the flows of surface water streams and the flows of surface water streams contribute to the accumulation of water underground. The Court acknowledged the physical reality of the inter - connected nature of portions of the surface and groundwater systems. The Court then reviewed the administrative systems established under Nebraska law for its water resources. It noted that the Department of Natural Resources and its predecessors have been given the legislative authority for regulation of surface water through the prior appropriation system. The court reviewed the adoption of statutes that authorize the 23 local natural resources districts to adopt rules and regulations regarding the use of groundwater. In determining what steps it would take, the Court first determined what steps it would not take. First, it held that it would not apply the Prior Appropriation Doctrine to groundwater uses. Secondly, it determined that it would not apply the common law right of recovery for conversion or trespass. As the Court said, "Because Spear T does not have a property interest in its surface water appropriation and only has a right to use, it cannot state a claim for conversion or trespass." Id. at 186. It should be noted that this quoted language seems at odds with prior decisions of the Supreme Court of Nebraska which have said that a surface water appropriation does constitute a property interest. See Nine Mile Irr. Dist. v. State, 118 Neb. 522, 225 N.W. 679 (1929) (the right to appropriate water is a vested property right); Enterprise Irr. Dist. v. Willis, 135 Neb. 827, 284 N.W. 326 (1939) (appropriator of public water has a vested property right); Loup River Public Power Dist. v. North Loup River Public Power and Irr. Dist., 142 Neb. 141, 5 N.W.2d 240 (1942). The Court then reviewed the common law analysis used to resolve disputes among (groundwater) users. The Court looked at the English rule, the American Rule, Correlative Use Doctrine and the Restatement (Second) of Torts. At the heart of its decision, the Court determined it would utilize the Restatement of Torts as the means of resolving disputes between surface water users and hydrologically connected groundwater users. THE COURT STATED: Accordingly, we adopt the Restatement to govern conflicts between users of hydrologically connected surface water and groundwater. Specifically, we hold: A proprietor of land or his [or her] grantee who withdraws groundwater from the land and uses it for a beneficial purpose is not Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited. 19