WaterClaim Summary Analysis of

Nebraska Supreme Court Ruling in Spear T Ranch vs Melvin Knaub

Court Opinion in html,  in pdf

Surface Water Users vs Ground Water Users

The Nebraska Supreme Court understands the issues at stake.  It has taken a very reasonable position regarding this difficult subject. 

The court has created a set of guidelines that will help settle all future disputes between various water users. 

“We adopt Restatement (Second) of Torts §§858 and 850A (1979) for resolving disputes between users of hydrologically connected ground water and surface water. “

The policy laid out by the court is as follows:

 (1) A proprietor of land or his grantee who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water by another, unless

(a) The withdrawal of ground water unreasonably causes harm to a proprietor of neighboring land through lowering the water table or reducing artesian pressure,

(b) The withdrawal of ground water exceeds the proprietor’s reasonable share of the annual supply or total store of ground water, or

The determination of the reasonableness of a use of water depends upon a consideration of the interests of the riparian proprietor making the use, of any riparian proprietor harmed by it and of society as a whole. Factors that affect the determination include the following:

(a) The purpose of the use,

(b) The suitability of the use to the watercourse or lake,

(c) The economic value of the use,

(d) The social value of the use,

(e) The extent and amount of harm it causes,

(f) The practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other,

(g) The practicality of adjusting the quantity of water used by each proprietor,

(h) The protection of existing values of water uses, land, investments and enterprises, and,

(i) The justice of requiring the user causing harm to bear

the loss.

Restatement (Second) of Torts §850A at 220 (1979).

The court goes on to suggest that judges may well conclude the least disruptive solution to society is for the surface user to be allowed to drill a well to replace his loss of surface water.

We digress momentarily to offer a word of caution. Although the issue of available remedies is not yet before us, courts should be cautious when considering remedies for interference with surface water. For example, because the recharge of a stream that has dried up because of well pumping could take years, an injunction against pumping might only serve to deprive everyone in a water basin. Such a remedy would be unreasonable and inequitable.

Likewise, a court can consider a surface water appropriator’s ability to obtain an exception to stays on drilling new wells, or any additional programs that might provide relief.

The Nebraska Supreme Court has now defined the rules.  Whether a ground water user has unreasonably caused harm to a surface water user is decided on a case-by-case basis.   The guidelines are flexible and the trial courts are instructed to consider any other factors they deem relevant. 

This set of guidelines effectively tells the trial court to rule in favor of whatever is in the best interest of society.  Assuming the groundwater user is not wasting the water, taking more than his share, and is not causing a direct effect on the stream, it may be more cost effective and less disruptive to society for the aggrieved party to be permitted to place their own well into service, even if this violates the moratorium on well drilling.  However, this is to be determined on an individual basis.

Positions taken by the Nebraska Supreme Court: 

• Ground water and surface water are linked.
• Nebraska Law ignores this fact.
• The conflict between ground and surface water users has now occurred; and this court is, with this case, setting the rules on how to resolve conflicts between various water users.
• LB 962 is not relevant to the issue.
• The court rejects Spear T’s claim that surface and ground water are one and that, as a result, Spear T had a prior claim on the water because its use was first. 
• The court rejects that ground water is a stream in the same way that surface water is.
• The Nebraska legislature has chosen not to make law that addresses conflicts between the two groups.
• The court rejects the idea that surface water users have priority over ground water users, as this would cause all ground water wells to be shut down.
• The court also rejects the additional claim that a surface water user has any ownership of surface or ground water.  The surface user has the right to use the public water, but does not own the water and, hence, cannot claim that it has been unrightfully taken.
• The court adopts the Restatement (second) of Torts §§ 858 and 850A for resolving disputes.  (see summary for detail)
• The court questions the doubtful and unscientific categorizations of the contact between the aquifer and stream and, instead, wants a pragmatic test.  The test is whether the withdrawal of the ground water 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.
• The court applies a flexible case-by-case test for the reasonable use of water.
• (a) The purpose of the use,
• (b) The suitability of the use to the watercourse or lake,
• (c) The economic value of the use,
• (d) The social value of the use,
• (e) The extent and amount of harm it causes,
• (f) The practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other,
• (g) The practicality of adjusting the quantity of water used by each proprietor,
• (h) The protection of existing values of water uses, land, investments and enterprises, and,
• (i) The justice of requiring the user causing harm to bear the loss.
• Ground water users are limited to reasonable and beneficial use on the land owned.
• Surface water users should be able to make a claim for damages against a ground water user subject to the Restatement Rule.
• The court states.  “A proprietor of land or his [or her] grantee who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water of another, unless . . . the withdrawal of the ground water 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.”
• The court states that turning off irrigation wells to cause the stream to flow again in the future is unreasonable and inequitable and, therefore, it suggests trial courts consider exceptions to the moratorium on well drilling as a possible compensation to the surface user.
• The court believes the NRDs should not be in charge of settling disputes between users, due to 23 different jurisdictions and the probability of conflicting rules between districts across the state.  “Instead of deferring jurisdiction to NRD’s who might act inconsistently and apply differing rules, it is better to allow the courts, which are bound by legal precedent, to try the actions.  The NRD may take regulatory action to prevent future conflicts and issue cease and desist orders to enforce those regulations, however.
• The court encourages Spear T to change their claim and make a Common Law Tort claim saying that the defendants may have unreasonably caused the drying up of the stream.
• The Legislature may create and abolish rights, as long as no vested right is disturbed.
• Current law provides no procedure for a surface user to get relief from damages; therefore, common law and relief through the courts is appropriate.
• Spear T may sue only some of the ground water users, even though there are other ground water users that may also have contributed to the problem.  However, the defendant is only responsible for his share of the total damages.

In summary, the court has said that the Legislature has not set up any rules so the court will.  It also said that it should be possible for a surface water user to sue a ground water user to stop the ground water user from taking an unreasonable amount of water.  The court then defines “reasonable” but says it is a flexible test that can be modified as the trial judge sees fit.  The reasonableness test basically says that a ground water user is not responsible for the damages caused to a surface user unless he violates the reasonableness test.  This is decided on a case-by-case basis. 

For the NRDs that have allocations set, it will be difficult for a surface user to successfully argue that the ground water user is taking an unreasonable amount of water.  The ground water users that are most at risk are those who operate without allocations and have a direct and obvious effect on the stream.

For the surface user to be successful, he will need to prove that his interests are greater than the interests of the ground water user.  The court specifically said that a surface user cannot cause a ground water user to turn off his well, but suggested that a more fair remedy might be for the NRD to exempt a surface user from a moratorium on drilling a well.

The court has basically said that the interests of society as a whole will be the determining factor on what a judge decides. 

The cost of bringing suit against a ground water user is prohibitive enough that it will only be prudent to challenge irrigators where there are no allocations and some individuals are using very large amounts of water, such as gravity irrigation taken near the stream.

The other risk that exists is for the Republican River Basin .  If the NRDs agree to a set of depletion factors, then they are quantifying for the surface users their contribution to the damage.  This information can then be used by the surface user against the ground water user.  Note that the depletion factors are created by the DNR, which is the surface water users’ representative.  So, the NRDs need to be very careful in what they are agreeing to without opening themselves to much greater liability.   Note that the Attorney General’s office refuses to release economic damage from reductions in ground water use, specifically because doing so would admit to Kansas a set of numbers that Nebraska would like to reserve the right to argue.  The NRDs might be wise to also challenge all depletion numbers for the same reason.  Once the NRDs officially accept the depletion factors, they are accepting the surface water users’ quantification of damage.