Standing on Thin Ice: How Nebraska's Standing Doctrine Prevents the Majority of Surface Water Users from Obtaining Judicial Relief Against Groundwater Users Interfering With Their Appropriations

• Publication year: 2021

94 Nebraska L. Rev. 1054. Standing on Thin Ice: How Nebraska's Standing Doctrine Prevents the Majority of Surface Water Users from Obtaining Judicial Relief Against Groundwater Users Interfering with Their Appropriations

Standing on Thin Ice: How Nebraska's Standing Doctrine Prevents the Majority of Surface Water Users from Obtaining Judicial Relief Against Groundwater Users Interfering with Their Appropriations(fn*)

Logan Hoyt

TABLE OF CONTENTS

I. Introduction .......................................... 1055

II. Background ........................................... 1056
A. Water Development in Nebraska .................. 1056
B. Spear T Ranch, Inc. v. Knaub..................... 1058
C. Introduction to Standing Doctrine ................. 1060

III. Standing in Water Law Cases ......................... 1061
A. Natural Resource Districts and Standing to Challenge Governmental Actions .................. 1062
B. Surface Water Entities and Standing .............. 1064
C. Contrast Between Natural Resources District Standing Cases and Central ....................... 1065
D. Nebraska's Standing Doctrine Prevents Most Surface Water Users from Obtaining Relief ........ 1068

IV. Is It Good Public Policy to Allow Surface Water Usersto Pursue Judicial Relief? ............................. 1069
A. Arguments in Favor of Judicial Intervention ....... 1070
B. Arguments Against Allowing Surface Water Irrigators to Obtain Judicial Relief ................ 1071
C. Policy Summary ................................... 1072

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V. If Surface Water Irrigators Should Be Able to Sue, What Changes Can Be Made? ......................... 1073
A. Legislative Intervention ........................... 1070
B. Judicial Intervention .............................. 1074

VI. Conclusion ............................................ 1074

I. INTRODUCTION

Nebraska water law consists of two distinct regulatory schemes for groundwater and surface water. Surface water users are regulated by a form of the prior appropriation doctrine administered by the Nebraska Department of Natural Resources (DNR).(fn1) Meanwhile, groundwater use is governed by local regulations promulgated by twenty-three natural resources districts (NRDs) that are divided by geographic lines based on Nebraska's river basins.(fn2) When examined in a vacuum these disparate regulatory schemes provide an illusion of adequacy. However, the developers of Nebraska water law did not provide a mechanism to regulate conflicts between groundwater users and the surface water users that depend upon groundwater that is discharged into Nebraska's streams. As noted in the legislative findings section of the Groundwater Management Act, the Nebraska legislature has enacted legislation in an attempt to mitigate some of these issues.(fn3) Despite this effort, the dueling regulatory schemes have still led to water quantity disputes that turn on the question of whether groundwater or surface water users have priority.(fn4)

The failure of surface water users to obtain legislative relief caused a number of aggrieved surface water users to look to the judiciary in hopes of resolving these disputes.(fn5) The Nebraska Supreme Court was historically reluctant to expand the scope of Nebraska water law beyond what the Nebraska legislature enacted.(fn6) However, in 2005 the court adopted a provision within the Restatement Second of Torts to deal with disputes arising in the context of hydrologically connected groundwater and surface water.(fn7) Adopting the Restatement approach provided an indication that the Nebraska Supreme Court might choose to fill other gaps left by the legislature. Since then the court

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has not clarified the scope of what rights surface water users have in integrated management disputes. Furthermore, one major decision indicates that the court is hesitant to allow any litigation beyond that which is contained within the narrow confines of the adopted Restatement provision.(fn8)

This Note discusses how the Nebraska Supreme Court's treatment of standing doctrine in water law cases has made it difficult for a majority of surface water users to obtain judicial relief against ground-water users. Part II examines the incremental development of the conflict between some groundwater and surface water users, and the practical and judicial limitations of the court's decision in Spear T Ranch, Inc. v. Knaub. Part III discusses how the court's failure to distinguish between different types of governmental entities in its application of standing doctrine prevents surface water users from obtaining judicial relief. The Note concludes in Part IV by examining whether surface water users should be entitled to judicial relief and what political and judicial reforms can be adopted to ensure that surface water users are able to obtain such relief.

II. BACKGROUND

A. Water Development in Nebraska

Major Stephen Long, an early American explorer, once described portions of the land which would later become Nebraska as "unfit for cultivation, and of course uninhabitable by a people depending on agriculture . . . ."(fn9) However, nearly two centuries after Long's account was published, the State of Nebraska is one of the nation's largest producers of corn, beef, and other agricultural commodities.(fn10) Nebraska agriculture is largely successful because of irrigation, which according to a 2003 study, contributes over $3 billion to the Nebraska economy in a year with normal precipitation.(fn11) The vast majority of water used in Nebraska is used for irrigation purposes and, as of 2007, Nebraska irrigated more acres than any other state.(fn12)

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The development of irrigation use in Nebraska began with the utilization of surface water to irrigate vegetables along the Platte River Valley to sell to pioneers traveling westward.(fn13) Surface water development continued after settlement and over 500,000 acres were irrigated with surface water by 1920.(fn14) Even though Nebraska's groundwater resources are more extensive, the development of groundwater resources for irrigation use occurred at a much slower rate until the mid-1950s.(fn15) In fact, there were still fewer ground-water-irrigated acres than surface water-irrigated acres as late as 1950.(fn16) Since then, the balance has dramatically shifted and 7.9 million acres are now irrigated with groundwater.(fn17) According to a 2007 estimate, 85% of irrigation water withdrawals are derived from groundwater pumping.(fn18)

While there are roughly 7.9 million acres irrigated with ground-water, the current number of surface water-irrigated acres is unclear.(fn19) A history of surface water development in Nebraska indicates that, in addition to the 505,000 surface water-irrigated acres existing as of 1920, 170,000 surface water-irrigated acres were added by New Deal-era projects, and 235,000 such acres were added as a result of the Pick-Sloan Missouri Basin Program.(fn20) Based solely on these estimates, there are now 910,000 surface water-irrigated acres in Nebraska.(fn21) It is, however, unknown how many acres were added by small-scale surface water diversions or how many acres were later permanently retired. Furthermore, there are active surface water rights that may not be utilized in a given year due to lack of water or a farmer's participation in a temporary retirement program.(fn22) This may explain why a 2007 University of Nebraska estimate placed the number of surface water-irrigated acres at just over 565,000 acres.(fn23) However, it is unclear what methodology was used to arrive at this

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estimate. Though the actual number is uncertain, it is probable that the actual number of surface water-irrigated acres in Nebraska varies somewhere between 565,000 and 910,000.(fn24)

The varying rates of development for groundwater and surface water appear to coincide with legislative attempts to regulate these respective users. The Nebraska Supreme Court alluded to this when it discussed a brief history of Nebraska water law in a 1966 dispute.(fn25) The court noted that the basis of Nebraska's modern surface water regulation was adopted in 1895.(fn26) Meanwhile, the first statutory attempt to regulate groundwater use was not adopted until 1957.(fn27) Eventually the State of Nebraska created twenty-three distinct local governmental entities and gave them the authority to regulate groundwater.(fn28) However, Nebraska's attempt to regulate ground-water with local governmental subdivisions did not prevent future legal disputes from arising between ground and surface water users.

B. Spear T. Ranch, Inc. v. Knaub

The primary issue in Spear T Ranch, Inc. v. Knaub, a case decided by the Nebraska Supreme Court in 2005, was whether surface water users had a common law cause of action against groundwater users that interfered with their appropriations.(fn29) The plaintiff was a ranch in Morrill County, Nebraska, that had historically watered cattle and irrigated crops using a surface water diversion from Pumpkin Creek.(fn30) Surface water availability declined following the development of hydrologically connected groundwater irrigation in the Pumpkin Creek basin.(fn31) Spear T Ranch filed suit against various groundwater irrigators and requested an injunction on future ground-water withdrawals and compensation for the loss of its appropria-

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tion.(fn32) Although the Nebraska Supreme Court determined Spear T...