Open the Process

 

As many know, WaterClaim and several individuals have challenged the Upper Republican NRD for making water policy via a committee and in closed session.  This challenge has been vigorously fought by the URNRD.   Even though two different District Court judges have ruled that the URNRD must answer questions about the closed sessions, the URNRD has refused to do so and has been fined by the court for failing to show up.  On May 5th the URNRD filed a new lawsuit with the Nebraska Supreme Court against the District Court saying that the District Court,

"continues to fail to recognize its clear duty imposed by the law and abused its discretion by failing to protect confidential and privileged information based decisions..." 

The URNRD is asking the Supreme Court to order the District Court to change its rulings.

In paragraph 18 of its filing with the Supreme Court the URNRD states, 

"The board of directors of the URNRD, in order to initiate the process of negotiating and assist in formulating an IMP, appointed a negotiating committee consisting of five members of the board of directors and the manager.  The negotiating committee would hold discussions with legal counsel, DNR, and its' attorneys, to negotiate the various issues associated with the formation of an IMP as contemplated by the Ground Water Management Protection Act.  At the regular meetings of the entire board of the URNRD, the board would convene closed sessions, at which time the negotiating committee would provide the entire board with an update of the negotiations held with DNR, and receive direction from the board as to how to proceed with the negotiations."

In paragraph 25 the URNRD gives the reasons the closed sessions are justified.

  • To protect the public interest by negotiating the IMP with the DNR without the DNR or the other NRDs knowing the URNRD's strategy.
  • The law permits closed sessions for the purpose of giving directions to a committee on how to negotiate.
  • To permit discussions with legal counsel of specific language and its implications in the IMP.
  • To discuss what happens if the IMP is not agreed to.

We believe this violates the Open Meeting Act.  We do not believe the law permits closed sessions for the purpose of giving directions to a committee on how to negotiate nor do we believe the law even permits the committee to form policy on behalf of the full board unless it does so in open session.

The URNRD states that the committee and also the full board, in closed sessions, discusses the specific language of the IMP (which is the policy document of the NRD) and discusses the implications of setting various policies.  We believe this is the definition of "the formation of public policy."  The URNRD calls the decisions made on what to put into the IMP, such as how much water each landowner is allowed to use, a "negotiation" and, hence, exempt from the Open Meeting requirements.  The plaintiffs call such decisions the formation of public policy and, hence, specifically subject to Open Meeting requirements.

This is the basis of the complaint.  It is now up to the courts to rule on whether this is acceptable under State law or not. 

What happens if the courts continue to rule against the URNRD?  The URNRD says this means “the URNRD would be drastically hindered in its ability to protect the public interest of acquiring and maintaining the maximum share of water for the patrons of the district…”

We disagree.  All policy makers at the State level and at the other NRDs know how much water is available.  The URNRD isn’t likely to get any more or less water by hiding what it does.  In fact, we believe that if all information is available to everyone, the best policy will be made.  If public input is allowed and encouraged, then the public is more likely to understand and accept the necessary changes.  The more people that are involved in the development of policy, the more likely flaws in any plan are to be found and corrected before policy is set.   True, this makes the process more chaotic and policy makers would be subject to more scrutiny, but the end results are worth the process. 

There is a great deal at stake.  A judge has just ruled that Colorado must shut down 400 irrigation wells, even though the seed is already in the ground.  This will break many farmers.  This area is at risk of the same thing happening.  We will fail to comply by the end of 2007, and Kansas will have the option of demanding all wells be shut off in the year 2009 or 2010.  Instead of continuing to hide our strategy for what we are going to do, we need to come together as a community and come up with a strategy that will protect us from the coming storm.

You can read the full story on www.waterclaim.org