Irrigators on the Niobrara River Basin won a big hand recently when the Nebraska Supreme Court found in their favor again. The ruling does not end the ongoing card game with NPPD, but it may give irrigators a chance to expand their water rights in the basin.
Last June, I posted this blog regarding the Court’s decision ordering the Department of Natural Resources (DNR) to re-determine whether the basin was “maxed out” for irrigation purposes. Despite the ruling, the Nebraska Public Power District (NPPD) held the trump card, since NPPD held senior water rights which limited water access to junior appropriators unless the junior appropriators compensated NPPD.
Two landowners called NPPD’s bluff and argued NPPD abandoned or forfeited its right to claim certain water rights at the expense of junior appropriators. The DNR initially found that challenges to water appropriations were governed by statute and had to be brought through a cancellation proceeding. The Court disagreed and held the statutes are not the end-all means for challenging water rights. Rather, the landowners could rely on “common law” arguments that NPPD forfeited or abandoned its senior water rights.
Nebraska has defined abandonment as “the relinquishment of a right by the owner thereof, without any regard to future possession by himself or any other person, but with the intention to forsake or desert the right.” On the other hand, forfeiture occurs when an appropriator fails to use water rights for a statutorily determined time frame, “resulting in a clear loss of any right of appropriation”. Simply put, the DNR will now have to decide whether NPPD intentionally relinquished certain appropriation rights or failed to use its water rights thereby losing such water rights to junior appropriators.
According to this recent World Herald article by Paul Hammel, NPPD is confident that it has not abandoned or forfeited any water rights. The landowners, however, claim NPPD abandoned or forfeited its water rights by failing to speak up while landowners acquired irrigation rights throughout the past several years.
Whatever the DNR’s decision, I am sure the Nebraska Supreme Court will have the final say in who holds the winning hand. Stay tuned.