The Water Report Nov 2005 - Laserfiche WebLink

Home Browse Search

Issue #21 The Water Report subject to liability for interference with the use of water of another, unless ... the withdrawal of the Nebraska groundwater has a direct and substantial effect upon a watercourse or lake and unreasonably causes harm to a person entitled to the use of its water. Restatement (Second) of Torts Section 858 (1)(c) at 258 (1979). Whether a ground water user has unreasonably caused harm to a surface water user it is decided on a case -by -case basis. In making the reasonableness determination, the Restatement... provides a valuable guide, but we emphasis that the test is flexible and that a trial court should consider any factors it deems relevant. Id. at 194. Thus the factors set forth in the Restatement are to be considered in making the determination. Restatement Factors THE FACTORS INCLUDE: • Purpose of use • Suitability of the use to the water course or lake • Economic value of the use • Social value of the use • Extent and amount of harm it causes • Practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other • Practicality of adjusting the quantity of water used by each proprietor • Protection of existing values of water uses, land, investments and enterprises • Justice of requiring the water user causing harm to bear the loss. Groundwater Act The Court reviewed the Groundwater Management and Protection Act and the recently adopted LB Reviewed 962. The Court noted that these statutes contain general regulations but are not designed to resolve individual disputes and do not result in any type of administrative adjudication. The adoption of these laws allows the request to be made to a local natural resources district to make rules and adopt management plans. However, these plans are prospective in their operation and thus do not provide adequate remedy for harm that has already occurred. In addition, the concept of primary jurisdiction does not apply because a remedy is not assured through actions of the local natural resources district. The Court also determined that the District Court had improperly dismissed the claim on the basis that necessary parties were not included. The Court noted that the plaintiff could choose to sue any one of the alleged groundwater users that caused its damage and was not required to join all the groundwater users that allegedly caused the damage. The case was reversed and remanded to the District Court for additional proceedings. IMPLICATIONS This case carries with it significant, if evolving, implications. The most significant implication that Evolving exists is that surface water users who believe they can establish that groundwater users have unreasonably Implications interfered with their use of surface water can file a complaint in the appropriate state District Court seeking redress for their harm. To help prove that the surface water user has been harmed, the Court has provided — through citation to the Restatement (Second) of Torts — guidance regarding the type of factors used to determine whether or not the surface water user is entitled to prevail in its claims. The case leaves in place the Groundwater and Protection Act as a means for local natural resources districts to manage interrelated resources and the Prior Appropriation system for the regulation of surface water rights. Whether the Spear T Ranch case provides a means for surface water users to obtain compensation for their losses and whether it provides additional incentive to develop comprehensive and effective groundwater management plans remains to be seen. ADDITIONAL SIGNIFICANT AND RELATED CASES Other cases have been decided by the Nebraska Supreme Court since the Spear T Ranch decision which discuss who has the power to regulate groundwater and surface water uses. In addition to the case Additional discussed above, Spear T Ranch also brought a claim against the State of Nebraska. Its tort claim against Tort Claim the State for over $4 million was rejected by the State Tort Claims Board and a subsequent complaint against the State was dismissed by the State District Court of Morrill County on summary judgment. Spear T Ranch appealed the decision to the Nebraska Supreme Court, which affirmed the dismissal. Spear T Ranch, Inc. v. Nebraska Dept. of Natural Resources, 270 Neb. 130, 699 N.W.2d 379 (2005). The Nebraska Supreme Court held that the State of Nebraska could not be held liable for Spear T Ranch's alleged losses because there was no explicit authority for the Department of Natural Resources to directly regulate the use of groundwater or resolve conflicts between surface water appropriators and ground No Liability water users. The Court reasoned that without any legal duty, the Department of Natural Resources could not be liable for any loss sustained by Spear T Ranch. 20 Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited.