Water Law Annotations (Agricultural Law and Tax)

Posted December 28, 2021

Equitable Apportionment Applies to Interstate Aquifers. The city of Memphis, Tennessee gets its drinking water from the Middle Claiborne Aquifer. The aquifer lies beneath eight states, and wells extract water from the aquifer by pumping water to the surface which lowers the water pressure around each well’s location (“cones of depression”). Memphis has more than 160 wells that pump about 120 million gallons of water each day from the aquifer. The pumping caused a cone of depression in the part of Mississippi across the state line closest to the wells. Mississippi sued Memphis in 2005 claiming that the pumping wrongfully appropriated Mississippi’s groundwater. The trial court dismissed the case because Tennessee wasn’t joined as an indispensable party. The appellate court affirmed, and held further that interstate aquifers are similar to interstate rivers and, as such, are subject to the doctrine of equitable apportionment which allows the U.S. Supreme Court to allocate rights in a disputed interstate water resource when one state sues another unless a statute, compact or other apportionment controls. Equitable apportionment provides that each state has an equality of right to use the waters at issue. As such, Tennessee was an indispensable party that couldn’t simply be added because the lawsuit was between states – the lawsuit should have been filed with the U.S. Supreme Court. Mississippi sought U.S. Supreme Court review, which was denied. In 2014, Mississippi sought approval to file a complaint with the U.S. Supreme Court claiming that the pumping had depleted Mississippi’s groundwater by altering the historic flow of the underground water which required Mississippi to drill deeper wells and use more electricity to get the water to the surface. Mississippi also claimed that it had absolute ownership of the groundwater in its state, even the water that crossed the border by flowing underground into Mississippi. As such, Tennessee’s pumping of groundwater was a tortious taking of its property. Mississippi claimed that equitable apportionment did not apply in the case, and sought $615 million in damages and injunctive as well as declaratory relief. The Supreme Court granted Mississippi’s request to file the complaint and appointed a Special Master to manage the case. In late 2020, the Special Master recommended dismissal of the complaint with leave to amend. The Special Master found that the aquifer is an interstate water resource and a single hydrological unit. The Special master also found that Tennessee’s pumping affected groundwater beneath Mississippi, disrupting the flow between Tennessee and Mississippi. Equitable apportionment was determined to be the only available remedy, but because the complaint did not seek equitable apportionment, the Special Master recommended the Supreme Court dismiss the complaint with leave to file an amended complaint to seek equitable apportionment. In a case of first impression, the Supreme Court dismissed the case without leave to amend. However, the Court did rule on the application of equitable apportionment to the aquifer. The Court noted that it had, in prior cases, applied the doctrine to interstate rivers and streams and to disputes over interstate river basins. The Court determined that the water in the aquifer was sufficiently similar to the water in the other cases where it had applied the doctrine. The Court also rejected Mississippi’s absolute ownership argument noting that such argument would allows an upstream state to completely cut-off the flow to a downstream state and that would be contrary to the equitable apportionment doctrine. Because the Court determined that the aquifer was subject to equitable apportionment, the Court adopted the Special Master’s recommendation to dismiss the complaint. Because Mississippi had not sought leave to amend, the case was dismissed without leave to amend. However, in future cases, the Court will apply the doctrine of equitable apportionment to interstate aquifers where the aquifer involves multiple states with water flowing between the states and the actions of one state affects the portion of the aquifer below another state and there is no overriding statute, compact or other water sharing agreement between the states. Mississippi v. Tennessee, 211 L. Ed. 2d 230 (U.S. 2021).

Posted March 27, 2021

In-Stream Use Deemed a Beneficial Use Under a Hydroelectric Water Right. The state issued a water right to a power company in 1923 that the power company planned to use to divert water for hydroelectric power. The power company was issued a 50-year license for its project in 1946 and subsequently transferred its water rights to an electric company in 1988. When the license was set to expire, the electric company determined the venture was unlikely to be profitable and decided to stop diverting water in March 1995. In February 2000, the electric company entered into a lease agreement with the state for an in-stream water right. The in-stream lease was renewed on multiple occasions, and the water rights were subsequently acquired by a hydroelectric company in 2015. The hydroelectric company also acquired property related to the previous hydroelectric projects and renewed the lease for an in-stream use through 2020. The plaintiff was concerned that the hydroelectric company was planning to restart the previous hydroelectric project at the conclusion of the lease. The plaintiff petitioned the defendant to reconsider the last lease renewal and argued that the temporary in-stream leases were an attempt to circumvent a permanent conversion process created by the state legislature. The defendant did not act on the plaintiff’s petition. As a result, the plaintiff sought judicial review of the approval of the lease renewal and argued that the defendant was required to initiate a conversion process for the water right. Under state law, water rights associated with a hydroelectric project shall be converted to a permanent in-stream right for the public trust five years after the cessation of use of the water under a hydroelectric water right. The hydroelectric company entered into a lease with the state to convert the hydroelectric water right to an in-stream right, pursuant to state law. However, state law authorizes leases of existing water rights for conversion to an in-stream water right. The plaintiff argued that because the use of water for hydroelectric purposes ceased when the plant shut down, state law required the defendant to convert the hydroelectric water right to an in-stream right held in trust for the public. The hydroelectric company argued that the conversion process under state law was never triggered because in-stream use under the lease arrangement was a use of water under the hydroelectric water right during the relevant five-year period. The trial court agreed with the hydroelectric company, and determined that the phrase “use of water” must be read in the context of Oregon’s statutory scheme for water appropriation. The trial court noted that the only recognized use under state law was beneficial use, which included in-stream uses of water under a lease. On appeal, the plaintiff maintained its argument that the phrase “use of water under a hydroelectric water right” refers to hydroelectric use. The appellate court noted that had the legislature inserted “hydroelectric” in front of “use,” then the plaintiff’s argument would be supported by the plain language of the statute. The appellate court determined that the phrase “use under a hydroelectric water right” was not limited to a hydroelectric use. As a result, the appellate court held that the in-stream use under a lease of a hydroelectric water right was a proper beneficial use under state law. The appellate court additionally held that since five years had not passed since the hydroelectric company’s last use, the defendant properly did not commence the process to convert the water right to an in-stream right for the public trust. Waterwatch of Oregon. v. Water Resources Department, 468 P.3d 478 (Or. Ct. App. 2020).

Posted February 7, 2021

Water Rights Lost for Non-Use. The claimant had acquired five claims, each of which were irrigation rights with a sprinkler listed as the type of irrigation, in 1980 in the Bighorn River. The Bureau of Indian Affairs (BIA) sought to establish that the claimant had abandoned his claims because they had not been used since 1985. Upon a site visit in 2018, the claimant stated that the place of use was last irrigated in 1985. Additionally, the claimant acknowledged that he had never replaced any of the irrigation equipment. The BIA served a discovery request on the claimant, and sought an admission that the place of use for the five claims were last irrigated in 1985, to which the claimant never responded. As a result, the BIA moved for summary judgment on the abandonment issue. The Water Court noted that there are two elements for abandonment of a water right – intent to abandon and actual non-use. The Water Court also noted that intent to abandon can be difficult to prove as owners of water rights rarely acknowledge intent to abandon their claims. The Water Court determined that the 35 years of nonuse created a rebuttable presumption of abandonment. The claimant failed to respond to the BIA’s discovery requests and motion for summary judgment. Additionally, the Water Court held that the lack of replacement or upkeep of the irrigation equipment associated with the claims established an intent to abandon the claims. The Water Court also noted that the claimant failed to appear for any proceedings and comply with filing deadlines. As a result, the claimant’s water rights were terminated in the state’s centralized record system due to abandonment. In re Schaff, 2020 Mont. Water LEXIS 184 (2020 Mont. Water Ct. Mar. 21, 2020).

Posted October 17, 2020

Prior Appropriation Doctrine Incorporates Public Trust Doctrine – No Reshuffling of Existing Water Rights. The state of Nevada appropriates water to users via the prior appropriation system – a “first-in-time, first-in-right” system. Over 100 years ago, litigation over the Walker River Basin began between competing water users in the Walker River Basin. The Basin covers approximately 4,000 square miles, beginning in the Sierra Nevada mountain range and ending in a lake in Nevada. In 1936, a federal court issued a decree adjudicating water rights of various claimants to water in the basin via the prior appropriation doctrine. In 1987, an Indian Tribe intervened in the ongoing litigation to establish procedures to change the allocations of water rights subject to the decree. Since that time, the state reviews all changes to applications under the decree . In 1994, the plaintiff sought to modify the decree to ensure minimum stream flows into the lake under the “doctrine of maintenance of the public trust.” The federal district (trial) court granted the plaintiff’s motion to intervene in 2013. In 2015, the trial court dismissed the plaintiff’s amended complaint in intervention on the basis that the plaintiff lacked standing; that the public trust doctrine could only apply prospectively bar granting appropriative rights; any retroactive application of the doctrine could constitute a taking requiring compensation and that the court lacked the authority to effectuate a taking; and that the lake was not part of the basin. On appeal, the appellate court determined that the plaintiff had standing and that the lake was part of the basin. The appellate court also held that whether the plaintiff could seek minimum flows depended on whether the public trust doctrine allowed the reallocation of rights that had been previously settled under the prior appropriation doctrine. Thus, the appellate court certified two questions to the Nevada Supreme Court: 1) whether the public trust doctrine allowed such reallocation of rights; and 2) if so, whether doing so amounted to a “taking” of private property requiring “just compensation” under the Constitution. The state Supreme Court held that that public trust doctrine had already been implemented via the state’s prior appropriation system for allocating water rights and that the state’s statutory water laws is consistent with the public trust doctrine by requiring the state to consider the public interest when making allocating and administering water rights. The appellate court also determined that the legislature had expressly prohibited the reallocation of water rights that have not otherwise been abandoned or forfeited in accordance with state water law. The Court limited the scope of its ruling to private water use of surface streams, lakes and groundwater such as uses for crops and livestock. The plaintiff has indicated that it will ask the federal appellate court for a determination of whether the public trust doctrine could be used to mandate water management methods (e.g., incentivizing conservation or habitat restoration). Mineral County v. Lyon County, No. 75917, 2020 Nev. LEXIS 56 (Nev. Sup. Ct. Sept. 17, 2020).

Posted August 30, 2020

Court Reinstates Water Rights After Deadline for Proof of Beneficial Use is Missed. The plaintiff is a ranching and farming company that operates a ranch in the Pine Forest groundwater basin in northern Nevada. The plaintiff’s groundwater irrigation rights were appropriated in stages dating back more than 50 years. To use its water more efficiently, the plaintiff decided to convert from flood irrigation to a center-pivot irrigation system. The conversion required the plaintiff to file a change application with the defendant. Upon approval, the plaintiff spent nearly $1 million and several years upgrading its water system, but missed the deadline to file its PBU due to an error by an the plaintiff’s agent. As a result, the defendant canceled the permit to change the water rights and reinstated the permit for the plaintiff’s original water rights. However, the reinstatement caused the original water rights to lose their priority date. The plaintiff sought equitable relief to restore its groundwater rights to their original priority dates. The trial court granted equitable relief, finding that the plaintiff had spent a considerable amount of time and money, and continuously put the water to beneficial use. The trial court also noted that the Pine Forest groundwater basin was over appropriated, meaning the new priority dates effectively eliminated the plaintiff’s water rights. On appeal, the defendant argued that the trial court lacked authority to restore the plaintiff’s original priority dates. The defendant argued that state law granted the defendant discretion to affirm or cancel permits, and the defendant’s decision was entitled to deference. The appellate court held that while the state statute granted the defendant discretion in affirming or cancelling permits, the defendant was required to replace the date of the water rights. The appellate court noted that the trial court is allowed to consider equitable factors, even though the defendant could not, because the defendant’s action was mandated. The appellate court affirmed the trial court, holding that the plaintiff should be granted equitable relief in the form of reinstating the original priority dates. The appellate court noted that it was long-standing precedent for the Nevada courts to grant equitable relief in water law cases beyond the relief that the defendant could grant. The appellate court also noted that equitable relief in water law cases will be granted if it improves efficiency, sustainability, fairness, and clarity. The plaintiff’s decision to convert its land to a center-pivot irrigation system promoted both efficiency and sustainability. Additionally, the plaintiff’s considerable investment in both time and money also aided in satisfying the requirements to qualify for equitable relief. Wilson v. Happy Creek, Inc., 448 P.3d 1106 (Nev. 2019).

Posted February 7, 2020

First-In-Time, First-In-Right Rule Applies To Water. The defendants’ predecessor leased land from the plaintiff’s predecessor to grow wild rice. The defendant’s predecessor filed for applied for a water right to irrigate the plaintiff’s land in October 1983. The State Department of Water Resources approved the permit application in November 1983 and issued a license in 1991. The license contained a notation in its conditions section that stated: "This water right is appurtenant to the described place of use." In 2001 the defendants purchased the rice business which included the water license and the land lease. Four years later the defendants filed for a change of ownership which was granted in 2006. During this time the plaintiff’s predecessor transferred the land to the plaintiff as an individual in four separate conveyances in 1993, 1994, 1998, and 1999. In 2010 the plaintiff conveyed the land to the plaintiff ranch LLC. The plaintiff is the sole managing member of the LLC. No notice in the change of ownership was given to the plaintiffs. In February of 2015, the defendants filed a notice of claim within the Coeur d'Alene-Spokane River Basin Adjudication. The director suggested that the defendants be recognized as owners. The plaintiff as an individual filed an objection and his own claim arguing that he was the owner. After investigation the director was unable to determine who owned the water right, and therefore recommended it go to both parties. The defendants appealed and the issue went before a special master in 2016. The special master found that the defendants owned the water right. The plaintiff filled a motion to alter or amend the special masters report, which was denied. The plaintiff challenged the final report in district court. The district court adopted the special master's recommendation that the defendants owned the water right and entered a partial decree reflecting that decision. The plaintiff appeals. The State Supreme Court affirmed. The Court began with determining who the parties of interest are. The plaintiff as an individual and his ranch LLC are both parties of interest. The ranch LLC owns the lands to which the water right at issue is appurtenant. Allowing the LLC into the action was proper. The plaintiff as an individual is also a proper party as anyone can object or respond to a director’s report. No injury is required to object to a water right. The proper argument as to this issue is if the Ranch LLC or the Defendants own the water right, the plaintiff as an individual cannot argue that he is entitled to the water right. The court next turned to the district court’s rejection of the plaintiffs claim to the water right. The court first found that the court correctly determined that the plaintiff’s objection was an impermissible collateral attack. The state statutes and caselaw are clear that collateral attacks are barred in water adjudication hearings. The plaintiff and his predecessors did nothing to assert a claim to the water at issue is uncontradicted. The plaintiff acknowledged this during his testimony. The Court also found that the LLC failed to timely assert its ownership in the water and the objections rose to a level of an impermissible collateral attack. In addition, the court agreed that the LLC did not own the water right because the license was unambiguous and neither plaintiff put the water to beneficial use. The water licenses state: "This water right is appurtenant to the described place of use." The state allows bifurcation of water from the land. The appropriator with the license is the owner but does not have to be the landowner to which the water is used. The license is clear that the defendant is the appropriator. Further the plaintiffs nor their predecessors put the water at issue to use. The agreement between the parties was landlord/tenant, not an agency relationship. The defendants filed for the water license and put the water to use for their business. The defendants never acted on behalf of the plaintiffs were putting the water to use. On the jurisdiction issue with respect to the objection to the change of ownership approval by the state department of water resources the Court determined that state law clearly required the plaintiffs to object to the change of ownership decisions with the department first. The Court determined that the plaintiffs had not exhausted administrative review. Further, the plaintiffs were not owed notice to the change of ownership application because they were never prior owners of the right. The Court also held that the plaintiffs are now owed attorney fees because they are not the prevailing party. The Court declined to sanction the defendant for the letter to the plaintiff. In the letter, the defendant claimed that the plaintiff’s actions in retaining counsel to pursue the water right "had served only to pad the pockets" of the attorneys and demonstrated the plaintiff’s "absolute stupidity." She also claimed that defendants never intended to pursue the water right until they received a letter from the plaintiff’s attorney, at which point the goal became to prolong the legal battle in order to "take delight in the outpouring of cash" the plaintiff would have to expend. The court notes that it does “…not exist for litigants to elevate annoyance, grudges, or vendettas to legal action improperly.” However, finds that since the claims were meritorious, a sanction would not be appropriate. In re CSRBA Case No. 49576), 165 Idaho 489, 447 P.3d 937 (2019).

Posted November 24, 2019

Water Rights Subordinate to Reserved Water Rights of Tribes. The U.S. Department of the Interior via the Bureau of Reclamation (Bureau) manages the Klamath River Basin Reclamation Project (Project) which includes the Upper Klamath Lake and the Klamath River. The Project supplies water to many farming operations and also protects Tribal trust resources of various Indian Tribes. In 2001, the Bureau temporarily ceased water deliveries to farmers and irrigation districts from the Project in satisfaction of Tribal trust obligations and particular Endangered Species Act (ESA) requirements outlined in U.S. Fish and Wildlife and National Marine Fisheries Service Biological Opinions to maintain sufficient water levels for Lost River and Shortnose Suckers. The plaintiffs (farmers and irrigation interests) claimed that the temporary stoppage of water deliveries was a taking of water rights requiring $28 million in compensation under the Fifth Amendment. The trial court (U.S. Court of Federal Claims) determined that no taking had occurred on the basis that the plaintiffs’ takings claim was barred by the prior reserved water rights of the Tribes. On appeal, the appellate court affirmed, noting that “at the bare minimum, the Tribes’ rights entitle them to the government’s compliance with the ESA in order to avoid placing the existence of their important tribal resources in jeopardy.” The listed fish species the Bureau sought to protect were all included in the Tribes’ fishing rights. In addition, the appellate court determined that the Tribes’ water right was senior to the Project’s water right. The appellate court also concluded that the federal reserved water rights of the Tribes were federal rights not governed by state law that had to be first adjudicated (an issue now made irrelevant by a recent U.S. Supreme Court opinion). Baley, et al. v. United States, No. 2018-1323, 2018-1325, 2019 U.S. App. LEXIS 33930 (Fed. Cir. Nov. 14, 2019).

Posted October 20, 2019

Kansas District-Wide LEMA Plan Upheld. Kansas Ground Water Management District (GMD) 4 was the first district to implement a Local Enhanced Management Area (LEMA) that Kansas law authorized beginning in 2012. A LEMA allows GMD’s to voluntarily implement water conservation practices. After great success with the first LEMA, GMD 4 proposed a district-wide LEMA. The GMD held many public meetings over 2015 and 2016. The GMD Board approved the final LEMA plan and submitted it to the Chief Engineer, Division of Water Resources (CE). The CE approved the LEMA Plan on June 27, 2017, and an official public notice and comment period was opened. After the required two public hearings, the CE found that the LEMA plan was satisfactorily addressed the water conservation issues within GMD 4, and approved the plan. On April 13, 2018, the CE issued the Order of Designation creating the GMD District-Wide LEMA. The plaintiffs, irrigators and voting members of the GMD, sued to stop the implementation of the LEMA on the basis that it violated vested water rights, was arbitrary and capricious, and unconstitutional. The local trial court disagreed and upheld the district-wide LEMA. The plaintiffs claimed that the water conservation restrictions contained in the proposal were a “collateral attack” on perfected water rights that the CE could not alter. The trial court disagreed, concluding that the groundwater permits do not guarantee any set amount of water. In addition, the trial court noted that the district-wide LEMA is not a permanent reduction but contemplates revisiting the matter in the future. Thus, the trial court concluded that so long as the LEMA is in place and the reduction in pumping is within state law limits, the CE had the discretion to approve the district-wide LEMA. The plaintiffs also claimed that governing state law did not provide a definitive guide to the CE and did not protect against arbitrary action, unfairness, or favoritism. The trial court disagreed, noting that state law establishes six prerequisites for a LEMA, five of which must occur within the LEMA area - including decline of the water source. In addition, the trial court noted that the LEMA was additionally reviewable by the state Ag Secretary and subject to judicial review. The trial court also noted that the GMD is elected in a democratic process. On the constitutional equal protection claim, the trial court determined that the LEMA, while sorting irrigators into different classes, did not violate equal protection because such sorting was rationally related to the LEMA's purposes of conserving water resources. On the plaintiffs' claim that the state law governing a LEMA cannot adversely affect vested water rights, the trial court found it relevant that the LEMA was not permanent and concluded that further reductions in water permits are not a taking because all economic benefits of the water have been eliminated. The plaintiffs claimed that the appeal process for the LEMA was inadequate because it did not provide for review by an independent unbiased tribunal. The trial court disagreed, noting that state law provides for judicial review. Also, the trial court determined that the recordkeeping requirements of irrigators was not unconstitutionally vague. The LEMA allows irrigators two ways to record water usage, inspect and record meter readings on a bi-weekly basis or "install or maintain an alternative method of recording," other than the meter that is sufficient to be used to determine operating time in the event of a meter failure." On the claim that the CE did not follow proper procedure when implementing the LEMA plan, the trial court determined that state law did not require the CE to include findings of fact or law in notice letters. In addition, the final orders did not need to consider constitutional concerns as those are properly reserved for a court. Likewise, the trial court held that the CE did not unlawfully delegate oversight of the LEMA hearing, and that the creation of the district-wide LEMA was not done in a manner that was arbitrary and capricious. Friesen v. Barfield, No. 2018 CV 10 (Gove County, KS Dist. Ct. Oct. 15, 2019).

Posted August 6, 2019

Abandonment of Water Right Not Established. The petitioner holds five separate water rights, with priority dating to the late 1800’s. These rights were decreed in 1950’s litigation. From 1980 to 2012, a water commissioner was appointed to distribute water in accordance with the decree. In addition to the water commissioner, who ensured priority and recorded use of water, an improvement association was responsible for billing users. The water commissioner and the improvement association maintained independent records documenting water use. The petitioner purchased the water right at issue in 1998. In 2012 the petitioner filed to correct his water right and the Bureau of Land Management (BLM) and other water users objected. The BLM did not maintain an abandonment issue and these issues were settled. Other parties claimed that the petitioner and his predecessors abandoned their rights. The petitioner is down river, but held a water right that was senior to most of the other parties. At a hearing, the objectors asserted that the water commissioner and billing records established that neither the petitioner nor his predecessors used or called for water for a period of at least 17 years, spanning from 1988 to 2004. The petitioner challenged the records and presented multiple witnesses who testified that they either irrigated or witnessed irrigation on the petitioner’s property during the alleged period of non-use. In June of 2017, the Water Master issued a report that the petitioner nor his predecessors abandoned their rights. The Water Court accepted the report in 2018, concluding that the Water Master's recommendations were based on substantial credible evidence, and that the Water Master did not misapprehend the effect of the evidence. On appeal, the Montana Supreme Court affirmed the Water Court’s adoption of the Water Master’s report, and determined that the appellants failed to establish that the petitioner had abandoned his water right by a continuous period of non-use coupled with the intent to abandon. The Court noted that the Waster Master found that the petitioner had actually used water between 1988 and 2004. The Court also rejected the claim that the petitioner’s failure to assert water rights through the water commissioner was the equivalent of non-use. Klamert v. Iverson, 395 Mont. 420 (2019).

Posted July 5, 2019

Riparian Rights Do Not Apply To Man-Made Lakes. The defendants own properties in subdivisions around a lake. One of the properties of the second subdivision abuts the lake. The properties they own in the first subdivision do not abut the lake. During the creation of the first subdivision, restrictions were added to the land. One such restriction states, “No structures or other improvements shall be made on or to any common area, including any body of water, other than such structures or improvements which are made by the trustees for the benefit of all lot owners. Except that, the owner of each lot which abuts any body of water, may construct one boat dock on such body of water, provided that, said boat dock extends from said lot and is first approved in writing by the trustees.” All landowners in the first subdivision are entitled to use the lake, even if they do not abut the lake. The second subdivision was not joined with the first one, but it was clear that the second subdivision was excluded from use rights on the lake. Lots in the first subdivision were subject to assessments to maintain the lakes. The defendants built a dock on the property on the second subdivision. The trustees of the first subdivision defendants sued seeking a declaratory judgment, damages for trespass, and the removal of the dock. The district court ordered removal of the dock and determined that special circumstances existed supporting the award of attorney's fees of $70,000 in favor of the trustees. On appeal, the appellate court determined that the lake was clearly artificial and, thus, the defendants were not riparian owners. Riparian rights are only extended to landowners adjacent to natural lakes. The appellate court also rejected the defendants’ reliance-based argument. The appellate court noted that the defendants had never had use of the lake for dock purposes or paid assessments for its maintenance. In addition, the defendants’ predecessor in title's deed to the adjacent land explicitly excepted the lake from the transfer. In addition, the plaintiffs had told the defendants of the property restrictrictions before the dock was built. As for attorney fees, the appellate court determined that there was not any special circumstance to merit an award of attorney fees. The plaintiff had not given any formal warning about not building the dock and the defendants had sought legal advice. Incline Village Board of Trustees v. Edler, No. SC97345, 2019 Mo. LEXIS 178 (Apr. 30, 2019).

Posted March 9, 2019

State Acted Within Rights To Restrict Groundwater Usage. The defendant is an authorized by state law to regulate activities which may contribute to groundwater contamination. Accordingly, the defendant required annual reporting as to crops planted, chemicals applied, water tests and other related information. The plaintiff’s report failed to indicate an actual crop yield and was missing a signature. The 2016 report was late and failed to indicate actual crop yields, failed to provide the irrigation data, failed to provide the nitrogen applications, and was not signed or dated. The defendant notified the plaintiff of these deficiencies and held a hearing. The defendant issued a cease and desist order that required the plaintiff to stop groundwater irrigation usage for four years and to submit properly completed forms for the 2015 and 2016 crop years and submit proper forms for future years. The plaintiff appealed the order and attempted to show that the manager of the co-op helped the plaintiff fill out the annual reports. The plaintiff’s evidence showed that his tenant purchased chemicals from a different seller in 2016. The trial court affirmed the defendant’s cease and desist order but modified the duration from four years to one year. On appeal, the plaintiff claimed that the defendant had no authority to require crop and water-related information annually or suspend groundwater usage. The plaintiff also claimed that the defendant violated the plaintiff’s right to procedural due process and denied him the opportunity to be heard. The plaintiff also claimed that the defendant violated the plaintiff’s due process rights for judicial review and that the defendant’s suspension of the plaintiff’s access to groundwater was an unconstitutional taking. However, the state Supreme Court affirmed. The Court determined that the defendant had the authority to require annual reports and suspend groundwater access as a penalty for the filing of improper/incomplete reports. However, the Court held that the four-year suspension was not authorized by the governing statute and upheld the trial court’s reduced one-year term. As for the plaintiff’s due process claims, the Court determined that the plaintiff was reasonably informed of the allegations and issues in the proceeding. On the taking claim, the Court held that the defendant’s order was within its delegated police power to protect the “public welfare.” Prokop v. Lower Loup Natural Resource District, 302 Neb. 10, 921 N.W.2d 375 (2019).

Posted February 7, 2019

No Injunction In Neighbor Water Dispute. The parties are land owners adjacent to a slow, poorly draining creek. Another manmade creek assists with the drainage issues. The plaintiff owns property upstream from the defendant. In 2013 the plaintiff sued the defendants and the county for flooding on their property. The plaintiff claimed that the defendant had effectively filled-in their portion of the creek causing a damming effect and flooding the plaintiff’s property upstream. The plaintiff claims that the county had not been cleaning road side drainage, which also caused water to be dammed up. The plaintiff sought money damages and mandatory injunctions against both the defendant and the county. In 2015, a federal court dismissed the claim against the county based on sovereign immunity. Trial was held in 2016. The trial court declined to enter an injunction against the defendant, stating the plaintiff had failed to meet their burden of proof on all of the claims and failed to prove harm sufficient enough to warrant an injunction. The trial court also noted that the plaintiff’s property was located in a flood plain and that water standing and slowly draining from a flood plain is expected to occur on occasion. The trial court also believed that the defendant’s hydrology expert witness was more convincing. On appeal, the appellate court affirmed. The appellate court concluded that plaintiff failed to prove that the defendant’s actions or the conduct of the county obstructed the flow of the creek in a way that caused improper drainage from the plaintiff’s field. Without such proof, the plaintiff was not entitled to injunctive relief. While the appellate court found that the defendant’s adding some fill may have altered the flow of water to the plaintiff’s property, it was not enough to warrant an injunction. The plaintiff failed to present any evidence that the defendant’s alterations would continually cause flooding. The appellate court noted that the land in the area was known to flood and there was not actual and substantial injury present to warrant an injunction. Gustafson v. Bodlak, No. A-16-1213, 2018 Neb. App. LEXIS 299 (Neb. Ct. App. Dec. 18, 2018).

Posted February 3, 2019

Landowner Fails to Establish Proximate Causation of Water Drainage Damage. The plaintiff’s four-foot wide drainage ditch ran from her driveway to the property line and onto the defendant’s property. The ditch dimensions remained fairly constant from 1973 t0 2000, when the defendant “changed the driveway” on his property by filling in a portion of the ditch and building a driveway on top of it. Over the years, the plaintiff and defendant had multiple conversations about the new driveway, with the plaintiff complaining that the culvert underneath the defendant’s new driveway was too small and was causing water to back-up onto the plaintiff. In 2016, the plaintiff filed a nuisance claim against the defendant, claiming that the culvert obstructed a natural waterway, creating a wetland area on her property and resulting in devaluation of her property. At trial, experts on both sides gave conflicting opinions as to the reason of the excess water on the plaintiff’s property. The plaintiff’s expert testified that the placement of the culvert under the defendant’s driveway and the level of the defendant’s connected retention pond, caused a backflow of water onto the plaintiff’s property. He also testified that when the defendant moved the driveway, he also moved the culvert further north, which prevented the sediment from properly flowing from the plaintiff’s ditch. The defendant’s expert testified that the area at issue had been a wetland since the 1930’s. He also testified that the wetland was caused as the direct result of an adjacent groundwater spring-fed stream, and was exacerbated by the fact that the plaintiffs had removed “several large trees” which significantly reduced the groundwater uptake, which led to more groundwater seepage onto the surface. Lastly, the defendant’s expert testified that the plaintiff had never engaged in measures to maintain the integrity of the ditch on her property, such as cleaning it out, removing vegetation or installing a tile. The trial court found in favor of the defendant concluding that the plaintiff had failed to meet her burden of proof. On appeal, the appellate court agreed that the plaintiff had failed to meet that burden of proof, and that the plaintiff’s evidence presented simply failed to show that either the culvert or the retention pond on the defendant’s property was the proximate cause of the wetland conditions on the plaintiffs property. The appellate court found the defendant’s expert’s opinion to be more credible than the plaintiff’s expert’s opinion, in light of all the evidence presented. Based on that evidence, the court found it more likely than not that the wetland conditions resulted from the historical existence of a natural spring, topographical makeup of the plaintiff’s property, removal of several trees, and lack of maintenance or improvements as to the drainage ditch. Therefore, the appellate court upheld the trial court’s finding that the plaintiff had failed to meet her burden of proof, and affirmed the trial courts judgment. Brockman v. Ruby, No. 18-0170, 2018 Iowa App. LEXIS 1095 (Iowa Ct. App. Dec. 5, 2018).

Posted January 20, 2019

Court Upholds Prior Appropriation Doctrine. The plaintiff’s water right dated to 1955, and the defendant’s water rights dated to 1964 and 1976. In 2005, the plaintiff filed a complaint with the Kansas Department of Water Resources (DWR) alleging that the two neighboring junior rights were impairing his senior right. The complaint was withdrawn in 2007, but the DWR continued to monitor the plaintiff’s and the defendant’s wells. The plaintiff sued for a temporary injunction in 2012 and the DWR was appointed as the fact finder. The defendant acquired his tract after the suit was filed and answered by the prior owner. In early 2013 after the DWR’s report was filed, the court granted the plaintiff’s temporary injunction. This inunction was vacated in late 2013 as a third party, the defendant’s tenant, was harmed by the lack of water. In 2014, the injunction was granted again. This injunction was appealed and affirmed. As for the permanency of the injunction, the court determined that the plaintiff had proven that the plaintiff’s senior right was being impaired. The DWR proposed two remedies: 1) rotate which of the other water rights in the could operate based on seniority and distance from the plaintiff’s well; and 2) curtail all water rights in the neighborhood. The trial court granted the permanent injunction shutting off the defendant’s junior water right. However, the trial court left room for future modification if the defendant’s water right would no longer impair the plaintiff’s right. The defendant appealed, but before briefs were filed the Kansas Water Appropriation Act (KWAA) was amended. The defendant moved to dismiss the case on claiming that the amended KWAA, on a retroactive basis, required the plaintiff to first exhaust administrative remedies. The appellate court dismissed the case, but the defendant later sought to reinstate the appeal. The appellate court determined that the amended KWAA did not apply retroactively and that the amendments were merely procedural. The appellate court also concluded that it had jurisdiction over judgments identified in the notice of appeal. The appellate court also determined that the trial court had properly defined the plaintiff’s water right and had utilized the proper definition of “impairment.” Thus, the appellate court affirmed the trial court’s award of permanent injunction. Garetson Bros. v. Am. Warrior, Inc., 2019 Kan. App. LEXIS 3 (Kan. Ct. App. Jan. 11, 2019).

Posted December 25, 2018

Parameters Established For Maintenance of Mutual Drainage Ditch. A drainage ditch runs along multiple properties. The plaintiffs alleged that before 2015 the water would flow from plaintiff’s property to the defendants. Sometime during 2015 the defendant allegedly altered the levee and ditch so that the water no longer flowed from the plaintiffs’ property. The plaintiff also claimed that the defendant deepened and widened the ditch and sought to enjoin the defendant from “altering an existing levee and ditch system and from removing lateral support from the [plaintiffs’] real estate.” The court issued a temporary restraining order in late 2015 , stopping the defendants from doing any work on the ditch. In September 2016 a third party intervened stating the drainage ditch was a mutual ditch and a third-party complaint was filed joining all of the property owners adjacent to the drain. In May of 2017 a hearing was held at which all evidence dating back to the creation of the ditch over 100 years earlier was presented including an opinion by an agriculture engineer. The trial court held that the drainage ditch was a mutual ditch and ordered another hearing pertaining to the rights and obligations of the parties to the ditch. The second hearing was held in October of 2017 and the trial court issued an order for the parameters of the ditch and that each party would bear the costs for their respective portion. If a party failed to repair/construct the levee or ditch for their respective portion within 90-days the other parties could petition the court for authorization to complete or have completed the necessary repairs or construction, with the noncompliant parties bearing the cost. The plaintiffs and intervening third parties appealed. They claimed that the trial court erred in establishing the parameters of the mutual drain. They also claimed that the trial court did not follow state law concerning the manner in which repairs are to be made to a mutual drain. They also claimed that the trial court erred as to the apportioning of costs. The appellate court disagreed with all of the claims. The appellate court noted that the parameters of the drain were a highly fact-specific determination best left to the trial court’s discretion. The appellate court determined that the trial court had properly weighed the evidence presented. While the appellate court did note that there exists no statutory duty to maintain a mutual ditch, the trial court order merely allowed the parties to fix the ditch within a 90-day window. If that wasn’t met, then the other parties could then petition the court to have ditch maintenance work done. Thus, the trial court’s order did not mandate any repair of the mutual ditch, it just allowed for a “practicable alternative in the event that a party fails to make repairs to their respective portion of the mutual drain.” As to cost, the appellate court held that the trial court’s order was consistent with the evidence and allowed the parties to control costs by doing the maintenance work themselves. If that didn’t occur, the court would apportion costs. Bruns v. Hagen, No. 5-18-0034, 2018 Ill. App. Unpub. LEXIS 2018 (Nov. 16, 2018).

Posted September 1, 2018

Failure Of Oil And Gas Lessee To Purchase Water From Surface Owner Does Not Violate Accommodation Doctrine. This case involves a water-use dispute between an oil and gas lessee and the surface owner. The plaintiff owns the surface of a 320-acre tract. The surface estate has been severed from the mineral estate, with the minerals being owned by the State of Texas. In October 2009, the plaintiff executed an oil and gas lease on behalf of the State with Eagle Oil & Gas Co. Eagle began its drilling operations, but before completing its first well assigned the lease to Comstock Oil & Gas, L.P., subject to an agreement to indemnify Eagle against claims arising from its operations to that point. Within a few months, the plaintiff and several other plaintiffs sued Eagle for negligently destroying the plaintiff’s irrigation ditch as well as damage resulting from road construction, among other claims. Comstock defended Eagle in the lawsuit and settled a few months later. According to the settlement agreement, Comstock would make repairs to a water well on the plaintiff’s land and purchase 120,000 barrels of water from the plaintiff at a rate of fifty cents per barrel. A plastic-lined “frac pit” was also built on the property to store water produced from the well, although the pit was not a requirement of the settlement agreement. Comstock complied with the agreement and purchased the required amounts of water from the plaintiff at the agreed price. Comstock completed two oil wells on the property that year and began constructing a third well the following year. Before completing the third well, however, Comstock assigned the least to Rosetta Resources Operating, LP, the defendant in this case, who continued construction of the third well and began construction of several more. Unlike Comstock, the defendant did not purchase its water from the plaintiff, choosing instead to pump in water from an adjacent property, a neighbor of the plaintiff. After learning that the defendant was importing his neighbor’s water, the plaintiff filed suit in his individual capacity and as trustee against the defendant for breach of contract, claiming an employee of the defendant had orally agreed to continue the same arrangement the plaintiff had enjoyed with Comstock. He also sought to permanently enjoin the defendant from using his neighbor’s water and sought cancellation of the State’s oil and gas lease. The defendant filed three motions for summary judgment that collectively challenged all of the plaintiff’s claims. In response, the plaintiff filed an amended petition asserting that the defendant had violated the “accommodation doctrine” by not purchasing his water, thus rendering his well and frac pit useless and unnecessarily causing damage to his property. The trial court granted the defendant’s motions for summary judgment in their entirety. The plaintiff appealed. The appellate court determined that the plaintiff’s accommodation doctrine arguments appeared to rest on his proposition that because a frac pit was built on his land for use by the former lessee, it unified the use of the land with the oil and gas operations, and when the defendant chose not buy his water it substantially interfered with his existing use of the land as a source of water for drilling operations. Thus, the substantial interference complained of is that the frac pit is no longer profitable because the defendant is not using it to supply water for its operations. The appellate court held that categorizing a refusal to buy goods produced from the land as interference with the land for purposes of the accommodation doctrine would stretch the doctrine beyond recognition. Therefore, because the defendant’s use does not impair the plaintiff’s existing surface use in any way, except in the sense that not buying the water has precluded the plaintiff from realizing potential revenue from selling its water to the defendant, the inconvenience to the surface estate was not evidence that the owner had no reasonable alternative to maintain the existing use. Lastly, the court determined that if it were to hold for the plaintiff on these facts they would, in effect, be holding that all mineral lessees must use and purchase water from the surface owner under the accommodation doctrine if his water is available for use. Accordingly, the appellate court affirmed. Harrison v. Rosetta Res. Operating, LP, No. 08-15-00318-CV 2018 Tex. App. LEXIS 6208 (Tex Ct. App. Aug. 8, 2018).

Tribe Must Allege Water Shortage For “Takings” Claim. The plaintiff, an Indian tribe, sued the federal government for an uncompensated “taking” of their water rights, and a breach of fiduciary duty to manage natural resources within their reservation. The tribe claimed that construction of dams violated their reserved water rights. The government motioned for dismissal on the basis that the diversion did not cause any shortage of water for the tribe. The trial court dismissed the case and the tribe appealed. The appellate court affirmed on the basis that the tribe did not have an absolute ownership right to the water. Rather, the tribe’s water rights were limited to the amount needed that could be efficiently used on the reservation. There was no allegation that the upstream dams deprived the tribe of water to fulfill the water needs on the reservation. Crow Creek Sioux Tribe v. United States, No. 2017-2340, 2018 U.S. App. LEXIS 23000 (Fed. Cir. Aug. 17, 2018).

Posted July 7, 2018

Water Master Properly Determines Non-Abandonment of Water Rights. This case addresses five water rights claims currently owned by the claimant. All five claims represent water rights decreed by the district court in Fraser v. Shields et al., Cause No. 764. The source for all claims is Flatwillow Creek. All five claims share the same points of diversion and place of use. The various claims received objections from several individuals and the United States Bureau of Land Management (BLM). The BLM objections were resolved through a Stipulation. Hearing in the case took place on August 16-19, 2016 in Roundup, Montana before a Water Master. The objectors asserted all five claims were abandoned based on nonuse beginning 1988 and continuing through 2004. The Master found the objectors failed to prove a ten-year period of continuous nonuse and therefore failed to show a presumed intent to abandon the water rights. The Master recommended accepting the terms of the BLM Stipulation and reducing the acres irrigated for all five claims. The objectors appealed the Water Master’s order. The claimant’s property was previously owned by Nebraska Feeding Company (NFC). NFC sold the property in 1983. Over the course of the next several years, the property sold four or five times and underwent a significant transformation in management. For the next several years, few of the new owners lived on the property or farmed it themselves. Owners leased the land and typically split the leases between the dryland grain and the irrigated hay ground. As a result, one lessee would grow grain on benchland while another would graze livestock and grow hay on the bottomland. In some cases, the lessees subleased their portion of the property. Some of the lessees also hired field hands who worked on the property. Between 1984 and 2004, there were at least eight different lessees, most of which stayed for less than five years. A number of witnesses testified that they either irrigated the claimant property or observed signs of irrigation between 1988 and 2004. While it is not clear if the entire place of use was irrigated at the same time, there was irrigation on parts of the place of use on a number of occasions. Irrigation on the claimant’s property was best summed up by the owner of the ranch adjacent to the claimant’s property. He is familiar with the claimant’s property. He can see the Section 9 and 16 points of diversion from his land. He traps along Flatwillow Creek and has been to the Section 2 point of diversion on several occasions. In his opinion, the problem with the property was that there were too many different people in charge of farming and irrigating. Some lessees improved the irrigation system while others did nothing. Nonetheless, he never saw a ten-year stretch without irrigation on the claimant’s property. The objectors argued on appeal that any use of the claimant’s water rights between 1988 and 2004 was illegal because the claimant did not receive water through the water commissioner, as required. They claimed that this illegal use was synonymous with nonuse. However, the Montana Water Court determined that the claimant’s rights were lawfully appropriated. In fact, with the most senior right in the Fraser Decree the claimant could take water from Flatwillow any time water was available. The court determined that his violation of statute, if any, was interfering with a commissioner's exercise of duties by failing to report diversions of the senior right and failing to pay for the water. At the same time, the court held that, it is the water commissioner's duty to measure and distribute water to water users and while the commissioners on Flatwillow Creek may have thought they were performing that duty, the evidence showed they were not adequately monitoring water use. The court found that while this did not excuse the claimant’s conduct, it did explain how water use took place without commissioner supervision. In addition, the court found that the Master's findings on the lack of continuous nonuse are supported by substantial evidence and that the Master did not misapprehend the effect of the evidence. Thus, the Master correctly applied the law of abandonment. The objectors also claimed that the Master should have addressed abandonment of each claim individually and entered findings specific to the alleged abandonment of each claim. However, the court determined that the Master addressed abandonment as an issue applied to all the claimant’s water right claims as a group, which reflects the evidence presented at hearing. Thus, given this record, the court determined that the Master found that the objectors failed to prove a long period of continuous nonuse for any of the rights. The court did note that providing individual findings for each claim may have clarified the report, but it was not a requirement. Consequently, upon a review of the entire record, the Court was not left with a definite and firm conviction that a mistake has been made. Therefore, the Master’s report was adopted. Claimant: Gene J Klamert, 2018 Mont. Water LEXIS 4 (Mont. Water Ct. Jun. 19, 2018).

Posted July 1, 2018

No Riparian Rights to Man-Made Lake. A west St. Louis area was developed in 1974. The developers dammed Indian Camp Creek to create a man-made lake referred to as the Main Lake that was built for the recreational enjoyment of residents. Assessments paid by lot owners were the sole source of funding for repairs and improvements to common areas, including the Main Lake, and only lake-abutting lot owners could construct boat docks or slips, and only with written permission by the local town, the plaintiff in this case. In the years following the initial development of the subdivision, the Main Lake began accumulating increasing amounts of silt—causing problems that could not be adequately addressed using only the assessment funds paid by the lot owners. In 1996, the local court ordered the lot owners to begin paying increased assessments of $415.00 per lot annually for five years to fund a dredging operation to remove the silt. Additionally, the court ordered the lot owners to pay a separate $100.00 per year assessment to fund a "preventative and remedial maintenance program" over the life of the Main Lake. As of the date of trial, approximately $2,864,000.00 had been spent to repair and maintain the Main Lake since its creation. Assessments paid by lot owners were the sole source of the funds. After the local court’s order, property adjacent to the Main Lake was purchased by a third party and subsequently developed into another subdivision. The general warranty deed transferring ownership to the third party specifically excepted ownership of lake for the initial subdivision, and did not refer to riparian rights to the Main Lake. The defendants, owners of non-lake-abutting lots in the initial subdivision purchased a lake-abutting lot in the second subdivision in 2009. Thus, the defendants owned two relevant properties: (1) the Main Lake-abutting a lot in the second subdivision in which no contractual rights to the lake attached to its ownership; and (2) lots in the initial subdivision that gave the defendants contractual rights to use and enjoy the Main Lake, but afforded them no contractual rights to construct boat docks or slips on the Main Lake, as the properties did not abut the lake. After acquiring the lot in the second development, the defendants sought to build a dock on the Main Lake despite not owning a lake-abutting lot in the first subdivision. They built the dock on the Main Lake from the lot in the second subdivision, even though they did not have written permission by the plaintiff to build the dock, and were explicitly told by at least one board member of the initial subdivision development that they could not build it. The plaintiff filed sued alleging that defendants had trespassed and seeking a declaratory judgment to enjoin them from continuing construction on or using the dock and to order the removal of the dock and repair the Main Lake property to its previous state. After the parties filed their initial pleadings, the trial court granted the plaintiff’s motion for summary judgment, but subsequently granted the defendant’s motion to reconsider and vacated its grant of summary judgment. Subsequently the trial court ordered the defendants to remove the dock, concluding that they did not have the right to construct a dock on the Main Lake because the Main Lake was an artificial, man-made body of water created for the sole and exclusive use of lot owners of the initial subdivision. The defendants appealed. On appeal they argued that the trial court erred in concluding that they did not have riparian rights to the Main Lake because the Main Lake has become a permanent and natural body of water and as such they assert that they have common law riparian rights to the Main Lake. The appellate court began by noting that the “artificial-becomes-natural” theory had only been applied in one case, but that case was factually different from the case at hand. As such, the court considered how the theory was applied in other states. In other states, the party invoking the “artificial becomes natural” theory must demonstrate that it has relied upon the use of the artificial body of water without dispute for a lengthy period of time. The court determined that the defendants presented no evidence that they had relied upon access to the Main Lake from their lot in the second subdivision for a lengthy period of time, as they only purchased the lot in 2009 and built the dock in 2012 only months before the plaintiff filed the suit. As such the decision of the trial court was affirmed. Incline Village. Board. of Trustees. v. Elder, No. ED105494 2018 Mo. App. LEXIS 646 (Mo Ct. App. Jun. 19, 2018).

Posted January 31, 2018

No Legal Recourse for Loss Of Water Rights Subject To Compact. The plaintiffs own farmland throughout the Republican River Basin in Nebraska. They irrigate their farmland with ground water from wells located within the Middle Republican Natural Resources District and receive surface water appropriations from the Frenchman Valley Irrigation District. As such, they are subject to the integrated management plan and associated surface water controls adopted jointly by the Middle Republican Natural Resources District and the Nebraska Department of Natural Resources (DNR). The administration of water in the Republican River Basin is subject to the Republican River Compact which is an interstate compact between Nebraska, Kansas and Colorado that regulates the consumption of the basin’s waters and allocates a certain amount of surface water to each state, depending on the amount of surface water available in the basin each year. The DNR is responsible for ensuring Nebraska’s compliance with the compact. In January 2013 through 2015, the DNR’s hydraulic forecast indicated that without essential action Nebraska’s consumption of water from the Republican River would exceed its allocation under the compact. Accordingly, the DNR declared a “Compact Call Year” and issued closing notices to holders of surface water permits for each of those years. As a result of the closing notices, the plaintiffs were barred from using the surface waters of the Republican River and its tributaries to irrigate their crops. However, the plaintiffs were still obligated to pay the costs associated with owning irrigated acres, including taxes and assessments. In December of 2015, the plaintiffs filed a verified complaint against the DNR in the local district court. They alleged a cause of action under 42 U.S.C. § 1983 alleging a deprivation of their property rights and violations of their due process rights. The plaintiffs also alleged that they had been subject to an inverse condemnation in that the closing notice and administration of the Republican River amounted to an uncompensated physical and regulatory taking. The DNR filed a motion to dismiss claiming that the court lacked subject matter jurisdiction and that the plaintiffs failed to state a claim upon which relief could be granted. The district court dismissed the plaintiffs’ complaint without leave to amend. The plaintiffs appealed. On appeal, the DNR claimed that the plaintiffs’ claim was barred by sovereign immunity. The Supreme Court of Nebraska held that the enactment of 42 U.S.C. §1983 did not abrogate Nebraska’s 11th Amendment immunity, which bars such suits unless the State has waived its immunity or unless Congress has exercise its power under Section 5 of the 14th Amendment to override the immunity. The court held that in this case Nebraska had not waived its sovereign immunity nor had Congress exercised its power to override that immunity. Therefore, the plaintiffs’ 42 U.S.C. §1983 claim against the DNR was barred by sovereign immunity. Consequently, the district court erred in failing to dismiss the claim for lack of subject-matter jurisdiction. The plaintiffs’ second claim for inverse condemnation involved a claim for physical taking of the property rights to appropriate the water and a regulatory taking of the economically viable use of their land. The court determined that because the rights to use the water were subject to a compact they were not a compensable property interest when limited for the purpose of ensuring Nebraska’s compliance with the compact. Therefore, the Supreme Court held that the district court properly determined that the plaintiffs did not sufficiently allege that a compensable vested property right was taken or damaged, either physically or by regulation. Cappel v. State Dep’t of Natural Res., No. S-16-1037, 2017 Neb. LEXIS 217 (Neb. Sup. Ct. Dec. 22, 2017).

Posted December 22, 2017

Division of Water Rights Based On Historic Number Of Acres Irrigated Is Proper. The plaintiff owns a ranch that was once a single parcel owned by John W. Blair known as Finn Ranch. In 1909 when Blair still owned the property, the Montana Third Judicial District Court in Powell County issued a decree in the case declaring the water rights of users of Nevada Creek and its tributaries. Among these water rights were four water rights decreed to Blair for irrigation from Nevada Creek and its tributaries. In 1912, Finn ranch was split and sold. It has remained in separate ownership to the present day. No deed transfers for the properties in the ensuing years has reserved specific water rights as appurtenances to the land. The plaintiff’s predecessor and his neighbor’s predecessor both filed four water right claims for Nevada creek based on the water rights decreed to Blair. The Montana Department of Natural Resources and Conservation (DNRC) noted that the eight claims were based on the same four water rights and that each party was claiming the entirety of each of the four rights. As a result, the rights claimed exceeded the total appropriations. The plaintiff filed objections and his neighbor filed counter objections against the claims. The claims and objections were consolidated and assigned to a Water Master for adjudication. After discovery, the Water Master presided over a trial and conducted a site visit. The Master concluded that both the plaintiff and his neighbor were successors to a portion of Blair’s four Nevada Creek water rights. The Master proportionally split the flow rates of each decreed right between the plaintiff and his neighbor based on the historic number of acres irrigated on each property. The plaintiff received 30 percent of the decreed rights and his neighbor received the remaining 70 percent. The plaintiff filed objections to the Master’s report with the Water Court. After a briefing and a hearing, the Water Court largely adopted the Master’s report. The plaintiff appealed, claiming that the Water Master and Water Court incorrectly interpreted the decree as decreeing water rights for irrigation to all of Finn Ranch. The plaintiff also claimed that the water rights could be appurtenant only to the specific lands where Blair put the water to beneficial use. Thus, in order to apply the decree, the plaintiff claimed that the decree should have been interpreted to have incorporated Blair’s answer and amended answer which described more fully where Blair put his water rights to use. The Supreme Court determined that the district court did take the divisions in Blair’s pleadings into account in the decree. Blair filed a single answer for claims from his two separate properties, Finn Ranch and Brazil Ranch. The court, however, divided his appropriations into two separate groups, one for each of the two ranches. The Supreme Court determined that the decree properly divided the appropriations between the ranches to account for where the appropriations were being put to beneficial use which was in harmony with the law of appurtenance. As a result, the court concluded that the Water Master and Water Court correctly interpreted the decree in the context of the facts of the case and the applicable law. In re Quigley, 2017 MT 278 (2017).

Posted October 16, 2017

Court Construes Water Rights Involving Non-Indians on Tribal Lands. The plaintiff, a Montana limited liability company owned by three non-Indian siblings, owns allotment lands located in Big Horn County, Montana within water basin 43P and within the boundaries of the Crow Indian Reservation. The lands were formerly held in trust by the United States for the benefit of an allottee of the Crow Reservation’s federally reserved water right and a member of the Crow Tribe. The allottee died in 1997. The United States issued fee patents and converted the lands to fee status in 2006. The plaintiffs purchased the lands from an heir of the allottee in 2010 and in 2012. The plaintiffs filed a petition for adjudication of existing water rights in July 2016, asserting that its claims were exempt from claim filing requirements because they were for stock or individual domestic use. The plaintiff asked the Water Court to declare that it possessed “Walton” rights. Walton rights are private water rights held by a non-Indian successor to allotment lands that are derived from the allottee’s share of the federally reserved water right for the reservation—as appurtenances to the lands. Shortly after the plaintiff filed its petition, the Water Master contacted the plaintiff’s counsel by telephone and recommended that counsel file the matter with the Department of Natural Resources and Conservation under the exempt claims filing procedures. The plaintiff responded by filing a motion for a ruling on its petition for adjudication. The Water Court held a hearing on the plaintiff’s petition in September 2016 and denied the plaintiff’s petition on the basis that the plaintiff’s water rights were appurtenant to an allotment, and that the allottee’s water rights were part of the Tribal Water Right that they could share in. As a result, the Water Court concluded that the plaintiff’s water rights did not require separate adjudication. The plaintiff moved to alter or amend the judgment and for relief from final judgment or order. It urged the court to hold that its Walton rights were not part of the Tribal Water Right and that they should instead be subject to the jurisdiction of the State of Montana. The court denied the plaintiff’s motions in December 2016. The plaintiff appealed. Under federal law, the creation of an Indian reservation impliedly reserves the tribe water rights on that reservation necessary to fulfill the purposes of the reservation, with the priority date being the date of the reservations creation. The Montana Supreme Court held that non-Indian successors to Indian allotment lands acquire Walton rights—a right to share in reserved waters. Because the plaintiff is a nonmember of the Crow Tribe and the lands it acquired are not held in trust by the United States the court held that the plaintiff’s claims are recognized under state law and are not part of the Tribal Water Right under the Crow Compact. In addition, the court determined that the plaintiff’s claims were subject to the July 1, 1996 deadline for existing water rights. Thus, the Water Court was barred from hearing the plaintiff’s petition. However, the court also pointed out that because the lands were held in trust by the United States until 2006, the plaintiff’s claimed water rights had not been conveyed out at the time of the filing deadline and were still part of the federally reserved Indian water right. Therefore, the plaintiff could not have timely filed claims for existing right be the general adjudication deadline. The court therefore determined that the plaintiff and owners in similar circumstances should filed their exempt claims by the June 30, 2018. As a result, the court reversed the Water Court’s order denying the plaintiff’s petition for adjudication and remanded with instructions that it dismiss the petition without prejudice so that the plaintiff may timely file an exempt claim. Scott Ranch, L.L.C., 2017 MT 230 (2017).

Posted October 6, 2017

Attorney’s Fees Improperly Awarded In Statutory Groundwater Challenge. The Montana Water Use Act (WUA) exempts certain new groundwater appropriations from permitting requirements. In part, the WUA exempts appropriations outside of stream depletion zones that do not exceed 35 gallons per minute and 10 acre-feet per year except that a combined appropriation from the same source by two or more wells or developed springs exceeding 10 acre-feet, regardless of the flow rate, requires a permit. The Montana Department of Natural Resources and Conservation (DNRC) promulgated a rule in 1987 specifying that groundwater developments need not be physically connected nor have a common distribution system to be considered a combined appropriation. DNRC issued a new rule in 1993 that defined a combined appropriation as “an appropriation of water from the same-source aquifer by two or more groundwater developments, that are physically manifold into the same system.” In 2009, the plaintiff (an environmental activist group) filed a petition for declaratory ruling with the DNRC asking it to invalidate the 1993 rule. The DNRC ultimately denied the petition. The plaintiff then filed a petition for judicial review with the trial court challenging the validity of the 1993 Rule and the petition denial. The trial court invalidated the 1993 Rule, reinstated the 1987 Rule and required the DNRC to develop a new rule consistent with its order. The Montana Well Drillers Association appealed and the Montana Supreme Court affirmed. Before the Supreme Court’s decision, the plaintiffs had moved for fees under the private attorney general doctrine and the trial court granted that motion. The DNRC appealed, and the Montana Supreme Court determined that Montana follows the American Rule under which a party in a civil action is generally not entitled to attorney fees absent a specific contractual or statutory basis. However, there are limited equitable exceptions to this doctrine one of which is the private attorney general doctrine. The private attorney general doctrine applies when the government fails to properly enforce interests which are significant to its citizens. The Supreme Court determined that the trial court’s decision invalidating the administrative rule was statutory based. In addition, the issue addressed was purely an issue of statutory interpretation - whether or not the DNRC’s rule conflicted with the WUA. In addition, the Supreme Court pointed out that the case did not address whether the rule conflicted with any constitutional provisions. The plaintiff argued that the act itself implemented the mandates of the Montana Constitution. However, the Supreme Court found that the DNRC’s rule was a step removed because the litigation did not directly implement constitutional provisions, but centered around the construction of the WUA. For these reasons, the Supreme Court held that the trial court abused its discretion in concluding that the plaintiff could recover fees under the private attorney general doctrine and the order granting the plaintiff’s motion for attorney’s fees was reversed. The Clark Fork Coalition v. Tubbs, 2017 MT 184 (2017).

Posted September 30, 2017

Drain Tile Impermissibly Interfered With Flow of Surface Water. A landowner filed a drainage complaint against the plaintiff alleging that the plaintiff was partially blocking drainage of an intermittent watercourse which flowed through both properties. The landowner claimed that when the plaintiff built a drain tile just beyond the outlet of a culvert, the blockage caused water to back up onto his property. The neighbor also hired an engineering company to prepare a site map and determine the elevation in the properties. The maps showed that there was a downslope for natural drainage from the neighbor’s property onto the plaintiff’s. However, the map also showed that the area where the crushed rock and dirt was placed for the plaintiff’s drain system had an approximately 15-inch rise in elevation. The County Board of Commissioners (Board) held a hearing. At the hearing, the plaintiff claimed that the reasonable use rule applied to surface water damage and allowed him to make reasonable use of his land, even though the flow of the surface water is altered and caused harm to the neighbor. The Board ruled against the plaintiff, applying the civil law rule. Under that rule, a lower property owner cannot interfere with the natural flow of surface water to the detriment of an upper property owner. The plaintiff appealed Board’s decision. However, the trial court affirmed. The plaintiff appealed, relying as he did before the Board, on the reasonable use rule in surface water drainage law. On appeal, the Supreme Court determined that the governing rule for surface water drainage depends on whether the drainage occurs on rural or urban property. For rural surface water drainage, South Dakota follows the civil law rule and for urban drainage of surface water the court has adopted the reasonable use rule. As a result, the court determined that the civil rule controlled because rural property was involved and the plaintiff’s claim was without merit. In the alternative, the plaintiff argued that an increased elevation on his land pre-dated installation of the drainage system. He presented multiple forms of evidence, but the court noted that the aerial photographs of the area indicated that the watercourse flowed from the culvert in years before the construction of the drain. The Supreme Court determined that the plaintiff’s evidence created a factual dispute regarding the 15-inch increase in elevation. As a result, the trial court was the proper judge of the dispute and the conflicts in evidence must be resolved in favor of the trial court’s findings. Consequently, the Supreme Court affirmed the Board’s decision that the plaintiff impermissibly altered the flow of the water. Surat Farms, L.L.C. v. Brule County Board of Comm’rs, 2017 S.D. 52 (2017).

Posted August 31, 2017

Court Upholds BLM Plan To Deliver More Water to Las Vegas. In 2013, the Southern Nevada Water Authority (SNWA) granted a right-of-way for approximately 300 miles of pipeline and pumps to move water from northeast Nevada to Las Vegas. The plaintiff represented itself and other environmental groups sued in 2014 claiming that the defendant violated various environmental laws and tribal trust obligations in its review of the project in its multi-year review of the project. The SNWA joined the suit later in 2014 on the defendant’s side. The plan ultimately proposes to pump up to 84,000 acre-feet of water annually to Las Vegas without tapping the rural valleys north of Las Vegas until at least 2035. The court noted the possible threat to the environment in the areas the water would be transferred from and the need for water in Las Vegas. Thus, while the court approved the plan for the proposed groundwater withdrawals, it determined that the defendant did not adequately explain what should be done to replace wetlands and other habitat that the project might destroy. Accordingly, the court ordered the defendant to “address these narrow deficiencies” in an amendment to its environmental impact statement for the pipeline right-of-way. Center for Biological Diversity v. United States Bureau of Land Management, No. 2:14-cv-00226-APG-VCF, 2017 U.S. Dist. LEXIS 137089 (D. Nev. Aug. 23, 2017).

Posted July 10, 2017

Injunction For Maintaining Dike Expires After Twenty Years. An injunction was issued in 1977 against a railroad directing it to reconstruct a dike designed to channel creek water under a bridge and away from the adjacent farmland. In 2008, the plaintiff purchased the railroad right-of-way and bridge. In 2013, a drainage district filed an application to show cause and asked the court to hold the plaintiff in contempt for willfully violating the injunction. Iowa Code section 614.1(6) places a twenty-year time limit on actions founded on a court judgement. The court concluded that 1977 injunction was an action founded on the court judgment. As a result, the time period for the drainage district’s application to show cause expired in 1997. Consequently, the injunction was valid and the drainage district’s application was denied. Dakota, Minn. & E. R.R. v. Iowa Dist. Court for Louisa County, No. 15-1456 2017 Iowa Sup. LEXIS 76 (Iowa Sup. Ct. Jun. 30, 2017).

Posted June 19, 2017

Old Water Rights Can Be Forfeited. Litigation in the early 1900s resulted in an agreement governing Gila River water rights that the San Carolos Apache Tribe of Arizona held along with the Gila River Indian Community, with the federal government as trustee. Landowners in the Upper Gila River were also part of the agreement. In 1993, the federal court overseeing the agreement adopted a rule that established procedures governing the severance and transfers of a party’s existing water rights to new land. The procedures prevented the transfer of a right that had been forfeited or abandoned, and obligated the party seeking to transfer and sever a right the burden to establish a prima facie case that doing so will not injure the rights of other parties to the agreement. In 2007, the court approved a settlement resolving claims of the Gila River Indian Community, the federal government and an irrigation district that Upper Gila River Valley landowners were unlawfully pumping water from the river to irrigate their land. The settlement allowed the landowners to file applications to sever and transfer water rights to certain lands that had been irrigated but were not covered by the decree, and more than 400 applications were filed. The federal government and the tribe objected on the basis that many of the rights had been forfeited or abandoned. The trial court withdrew all of the applications that hadn’t already been withdrawn on the basis that state (AZ) forfeiture law did not apply and that there had been a partial abandonment of water rights. The appellate court affirmed on the basis of failure to prove lack of injury to the other parties to the agreement and abandonment. United States v. Gila Valley Irrigation District, No. 14-1942, 2017 U.S. App. LEXIS 10477 (9th Cir. Jun. 13, 2017).

Posted May 28, 2017

Change in Diversion Point Eliminated Right To Divert Water From Ditch. The plaintiff sought to run a water pipeline across an irrigation ditch meandering alongside the South Platte River, but the defendant had an easement from an early 1900’s easement associated with a water right. The defendant claimed that the plaintiff could not establish the pipeline without committing a trespass on its easement. However, the present holder of the water right changed the point of diversion in 2014 pursuant to the state (CO) simple change statute which now required the holder of the water right to divert water from the river via a downstream pump that was beyond the end of the ditch. The water court found that the change in the diversion point eliminated the right to divert water from the ditch thereby eliminating the right to divert water from the old ditch and mooting the defendant’s trespass claim. On further review, the Colorado Supreme Court agreed. The Court noted that a water right is only a usufructuary right that allows the holder to use an enjoy water associated with structures and diversion points defined in the right. An actual water right is not conveyed and the decree defines the scope of the right. The Court noted that the 2014 decree was plain on its face in naming a single diversion point – the pump. It detailed the pump’s location by legal description. There were no other points of diversion denoted. As such, there was no longer any right to divert water from the ditch and the easement was eliminated. Select Energy Services, LLC v. K-LOW, LLC, No. 16SA166, 2017 Colo. LEXIS 371 (Co. Sup. Ct. May 15, 2017).

Posted April 25, 2017

Water Management District Not Immune From Takings Suit. The plaintiff’s dam on their farm eroded after significant rainfall and the defendant sought an injunction against the plaintiff on the basis that the plaintiff needed to obtain a permit to repair the dam. A permanent injunction issued in 2007 barring the plaintiff from continuing the repair the dam and finding that the dam repairs had been done without anyone having any formal training in the construction and repair of dams. The injunction required the plaintiff to drain the dam to the lowest possible level and within 60 days provide certification of the dam and appurtenant works and an operation and maintenance plan. The injunction also ordered that the plaintiff was not to impound water to its full capacity behind the dam until the defendant provided written approval and certified the operation and maintenance plan. The plaintiff appealed the injunction order, but the court affirmed. The plaintiff did not comply with the injunction and the defendant repeatedly inspected it and found it to be deficient and sought to have the plaintiff drain the water. Numerous times the parties returned to court and the court issued numerous contempt orders. The plaintiff then filed a takings claim alleging that the defendant’s action flooded 60 acres of their farm and denied then beneficial and viable use of their land without compensation. The plaintiff sought an order against the defendant ceasing the flooding and compensatory damages of at least $1 million. The trial court granted summary judgment for the defendant, and the plaintiff appealed. The appellate court reversed on the basis that the defendant did not have quasi-judicial immunity because the defendant’s action was not part of a judicial process or comparable to the work of judges. Hill v. Suwannee River Water Management District, No. 1D16-3343, 2017 Fla. App. LEXIS 5263 (Fla. Ct. App. Apr. 18, 2017).

Posted April 16, 2017

State Agency Cannot Allow Access to Flooded Waters or Ice Over Private Property. Landowners sued the state (SD) Department of Game, Fish and Parks (GFP) for declaratory and injunctive relief concerning the public’s right to use the waters and ice overlying the landowners’ private property for recreational purposes. In 1993, excessive rainfall submerged portions of the landowners’ property. In accordance with instructions from the United States Surveyor General’s Office, commissioned surveyors surveyed bodies of water in SD in the late 1800s. Pursuant to those survey instructions, if a body of water was 40 acres or less or shallow or likely to dry up or be greatly reduced by evaporation, drainage or other causes, surveyors were not to draw meander lines around the body of water but include it as land available for settlement. When originally surveyed, the lands presently in question were small sized sloughs that were not meandered. Thus, the landowners owned the lakebeds under them. The 1993 flooding resulted in the sloughs expanding in size to over 1,000 acres each. The public started using the sloughs in 2001 and established villages of ice shacks, etc. In the spring and fall, boats would launch in to the waters via county roads. After the landowners complained to the GFP, the GFP determined that the public could use the waters if they entered them without trespassing. In 2014, the landowners sued. The trial court certified a defendant class to include those individuals who have used or intend to use such floodwaters for recreational purposes, appointing the Secretary of the GFP as the class representative. On cross motions for summary judgment, the trial court entered declaratory and injunctive relief against the defendants. The trial court held that the public had no right of entry onto the water or ice without a landowner’s permission, and entered a permanent injunction in favor of the landowners. On appeal, the appellate court upheld the trial court’s decision to certify the class and include non-residents in the class. The appellate court also upheld the trial court’s determination that the landowners had established the elements necessary for class certification and that the GFP Secretary was appropriate as the class representative. The appellate court also upheld the trial court’s grant of declaratory relief to the landowners, noting that prior caselaw had left the matter up to the legislature and the legislature had not yet enacted legislation dealing with the issue. The legislature had neither declared that the public must obtain permission from private landowners, nor declared that the public’s right to use waters of the State includes the right to use waters for recreational purposes. The appellate court remanded the order of declaratory relief to order the legislature to determine whether the public can enter or use any of the water or ice located on the landowners’ property for any recreational use. As for the injunctive relief, the appellate court modified the trial court’s order to state that the GFP was barred from facilitating public access to enter or use the bodies of water or ice on the landowners’ property for any recreational purpose. Duerre v. Hepler, No. 27885, 2017 S.D. LEXIS 29 (S.D. Sup. Ct. Mar. 15, 2017).

Posted March 25, 2017

Water Right Permit Could Not Be Amended to Allow More Withdrawals. The plaintiff owns 261 acres along the Lampasas River and filed an application with the state (TX) for a water permit authorizing him to divert and use 130 acre-feet annually for irrigation purposes. The plaintiff was granted a water use permit as a 10-year permit. Under the permit, the plaintiff was authorized to withdraw 130 acre-feet of water from the Lampasas River. Later, the plaintiff made application to extend the term of the permit an additional 10 years or to convert his right to a perpetual right. The plaintiff also sought the authorization to withdraw 20 additional acre-feet of water per year, and be allowed to irrigate an additional 31 acres of land. The executive director of the Texas Commission on Environmental Quality (TCEQ) recommended that the application be denied because the director had determined there was “little to no water” available at the plaintiff’s point of diversion on the Lampasas River. An administrative law judge agreed, finding that the director acted within the scope of the director’s authority and that the director’s water availability model was reliable and there was not unappropriated water available for appropriation. The TCEQ adopted the ALJ’s finding and denied the plaintiff’s application. Upon judicial review, the trial court affirmed the TCEQ’s final order and the plaintiff appealed. The appellate court affirmed, finding that the TCEQ’s order was supported by substantial evidence and because the TCEQ did not have any mandatory duty to allocate water to him from return flows. The appellate court noted that the plaintiff only had a “term” permit which conferred only a temporary right to use waters already appropriated to another that would otherwise be unused are is subordinate to any senior appropriative water rights. Ware v. Texas Commission on Environmental Quality, No. 03-14-416-CV, 2017 Tex. App. LEXIS 1797 (Mar. 3, 2017).

Surface Water Irrigators Not Damaged by State Action Limiting Their Withdrawals. In 2013 and 2014, the state (NE) Department of Natural Resources (DNR) issued orders and sent closing notices to holders of surface water permits for natural flow and storage in the Republican River Basin consistent with the Republican River Compact also involving Colorado and Kansas. Various farmers, as a class, that appropriated water for crop irrigation purposes sued, claiming an unconstitutional taking of their private property without just compensation against the state and the DNR. The trial court ruled against the farmers. The DNR under state law, must conduct an annual forecast to determine whether the state’s projected water supply from the Basin and projected consumption is sufficient to comply with the Compact. The reviews conducted in January of 2013 and January 2014 indicated that NE’s consumption would exceed its allocation under the Compact. Thus, for those years, the DNR issued a “Compact call” in the Basin and issued closing notices on all natural flow and storage permits. The farmers claimed that the result of the calls was to divert the use of the water in which they had a property right away from them and to the public use to satisfy Nebraska’s obligation to the state of Kansas under the Compact. The suit named Kansas, Colorado, Nebraska and the U.S. as parties, and alleged damages from the loss of water. The farmers claimed that compliance with the Compact was an inferior use of water rights to those that had been given to the farmers as appropriators. Thus, depriving them as water resulted in a deprivation of a beneficial economic use of the water without compensation. The farmers also claimed that the water was taken from them as a result of the DNR’s failure to stop excessive groundwater pumping that had depleted the basin’s streams. The trial court ruled for the state dismissing the case and the farmers appealed. On appeal, the Nebraska Supreme Court affirmed. The court noted that the farmers’ arguments were based on an assumption that the appropriators had compensable property rights in the water they were permitted to appropriate. However, the Court concluded that there is no vested property right in an appropriative water right based on Spear T Ranch, Inc. v. Knaub, et al., 269 Neb. 177 (2005), where the Court held that a “right to appropriate surface water” is merely a right to use water and not a right of ownership. Likewise, based on Spear T Ranch, the Court held that the DNR has no authority to regulate groundwater, but that the state Natural Resource Districts have jurisdiction over groundwater. The Court also determined that the Compact is a matter of federal law and, as such, is superior to NE water law on the issue of water allocations. In addition, the Court determined that the DNR was obligated to ensure that Nebraska remained within its allocation under the Compact, and that the state has a right to place restrictions on water usage during water short periods based on its decision in Bamford v. Upper Republican Natural Resource District, 245 Neb. 299, 512 N.W.2d 642 (1994), cert. den., 115 S. Ct. 201 (1994), and did so in a manner that was not arbitrary, capricious or unreasonable. The Bamford decision, the court noted, did not mean that the inability to withdraw enough water to grow crops constituted the deprivation of all of the economic use of an appropriator’s land. There was no evidence that the DNR’s conduct converted the farmers’ land into permanent dryland. On the farmers’ claim that the DNR’s failure to regulated groundwater pumping resulting in a taking, the Court noted that the DNR has no authority to regulate groundwater, no duty to regulate groundwater so as to protect surface water users, and that a rule of reasonable use applies. Hill v. State, 296 Neb. 10 (Neb. Sup. Ct. 2017).

Posted February 6, 2017

Court Enters Injunction Against Junior Water Rights Holders. The plaintiff owns a senior, vested (pre-1945) groundwater right which depends on the same local source of groundwater supply as two neighboring and junior groundwater rights held by an oil and gas production company. In 2005, the plaintiff filed an impairment complaint with the Kansas Department of Agriculture’s Division of Water Resources (DWR), so that the DWR could investigate and resolve the dispute according to K.A.R. §5-4-1a, which sets forth a detailed procedure for addressing impairment complaints for water from Ogallala Aquifer water sources. The plaintiff withdrew the complaint in 2007, but later in 2012 sued to obtain an injunction against the defendant’s pumping, claiming a senior water right under the Kansas Water Appropriation Act (“KWAA”). In November of that year, the trial court appointed the DWR as a fact-finder pursuant to the limited reference procedure set forth at K.S.A. § 82a-725. The DWR filed its first report on April 1, 2013, which found that the plaintiff’s well was being impaired by the two wells of the defendant. Based on the DWR’s uncontested finding of impairment, the plaintiff obtained a preliminary injunction shortly thereafter. After several rounds of motion pleading, the DWR issued its second report on March 27, 2014, also finding impairment, and the court issued a second temporary injunction on May 5 of that year, ordering the curtailment of pumping from the defendant’s two wells. The defendants timely filed an interlocutory appeal to reverse the temporary injunction. In 2015, the Kansas Court of Appeals affirmed the district court’s granting of the injunction and remanded the case back to the trial court. The issue on remand centered on the two distinct definitions of “impairment” under the KWAA. Within the context of reviewing new applications for water rights pursuant to K.S.A. §§82a-711 and 82a-711a, the DWR uses one definition: “impairment shall include the unreasonable raising and lowering of the static water level . . . at the [senior] water user’s point of diversion beyond a reasonable economic limit (emphasis added). However, when the DWR is called upon to protect senior water rights from impairment by already-existing junior water rights, that impairment standard does not include the “beyond a reasonable economic limit” qualifier. K.S.A. §§ 82a717a, 82a-716. Because this dispute concerned the latter situation, the Court of Appeals declined defendant-appellant’s efforts to apply the former definition of impairment, and upheld the injunction. On remand at the trial court, and before a different judge, central to the record in the case were the findings by both the Kansas Geological Survey and the DWR that groundwater levels were declining in the area, and that the defendants’ junior groundwater pumping was responsible for substantially impairing the plaintiffs’ senior right. With these principal conclusions established in the record, the court applied the standard test for permanent injunctions, and found that a permanent injunction should issue in this case. In making that finding, the trial court judge followed the “ordinary definition of impair” [pursuant to K.S.A. §§ 82a-716 and 82a-717] which the legislature intended should apply in situations such as this, where the senior right holder seeks injunctive relief to protect against diversions by junior water right holders, when the diversion “diminishes, weakens, or injures the prior right.” In deciding that an injunction against the defendant’s junior rights should issue, the court declined to adopt a remedy suggested by the DWR in its second report—that the junior water rights surrounding the plaintiff’s (including those owned by non-parties) could be allowed to operate on a limited and rotating basis. In declining to adopt that remedy, the court stressed that it “does not wish to draft an order that would micro-manage future use” by the junior rights. Garetson Bros. v. Am. Warrior, Inc., 347 P.3d 687, 51 Kan. App. 2d 370 (2015), rev. den., No. 14-111975-A, 2016 Kan. LEXIS 50 (Kan. Sup. Ct. Jan. 25, 2016), remand decision at Haskell Co. Dist. Ct. No. 2012-CV-09 (Feb. 1, 2017).

Posted July 5, 2016

Road Cannot Block Natural Water Flow. A landowner owned land north of a county road and claimed that the road was blocking the natural drainage of the water from his tract to the south. The landowner filed a drainage complaint with the defendant, and it was discovered that old structures that allowed water to pass under the county road had been removed over time and the road level raised. The defendant’s drainage attorney advised the board that state (IA) law specified that a road cannot block the natural flow of water and recommended the defendant hire an engineer to review the matter and advise. The defendant hired an engineer who recommended the installation of two culverts under the road to allow the natural drainage flow of water and that the landowner on the south side of the road (the plaintiff in the case) would need to make adjustments to manage the additional water that would again flow onto the plaintiff’s property. The plaintiff’s filed a mandamus action objecting to the proposed construction of the culverts, claiming that Iowa Code §314.7 applied to the matter because it governed drainage of surface water across roads. The defendant approved the construction of a culvert and the plaintiffs sought injunctive relief complaining that upstream and downstream landowners were entitled to notice and an opportunity to be heard under Iowa Code §468.600, et seq. The defendant later approved the construction of two culverts, and filed a motion to dismiss the plaintiffs’ case, and the trial court dismissed the case. The appellate court agreed, noting that the statutes the plaintiffs cited involved private drainage actions which imposed no duty on the defendant. While the defendant could have advised the landowner to file an application to begin private drainage actions, the defendant was not required to proceed in that manner. Indeed, the private engineering study recommended culverts under the road as a solution to the drainage problem. Knoer, et al. v. Palo Alto County Board of Supervisors, No. 15-0742, 2016 Iowa App. LEXIS 703 (Iowa Ct. App. Jun. 29, 2016).

Posted July 4, 2016

Court Says Groundwater and Oil/Gas Sufficiently Similar That Same Legal Principles Apply. The plaintiff is a 26,000-acre cattle ranch with some irrigated cropland. The ranch sits atop the Ogallala aquifer in northwest Texas. The defendant bought groundwater rights from the plaintiff in 1953 and the plaintiff deeded its groundwater to the defendant with the reserved right in the plaintiff to use groundwater for domestic wells, livestock watering, oil and gas production and irrigation for agricultural purposes. The defendant had the right of ingress and egress to drill water wells and test existing wells. The defendant also had the right to use as much of the ranch as necessary to take, produce, treat, transmit or deliver groundwater. The defendant also had the right to construct water lines, fuel lines, power lines, access roads and anything else incidental to accessing and making use of its water right. For those rights, the defendant was to pay rent for any surface area that its facilities occupied. The defendant also was required to pay for surface property damages it caused and was required to install gates and cattle guards for roads. In 2012 the defendant announced its intent to drill 20 test wells and up to 60 additional wells on the ranch. Until that time, the defendant had only drilled seven wells. The plaintiff sought to enjoin the defendant from drilling more wells on the basis that, under common law, the defendant could only use so much of the surface that was reasonably necessary to its operations and then only with due regard to the plaintiff’s rights with respect to the surface – the “accommodation” doctrine. The defendant asserted that its rights under the deed language controlled and that the accommodation doctrine only applied to mineral owners (e.g., oil and gas) as opposed to water. The trial court applied the accommodation doctrine and issued the injunction. The result was that the defendant had to stop drilling test wells without going over potential negative impacts on the ranch with the plaintiff. The defendant was also enjoined from erecting power lines to proposed well fields. On appeal, the court of appeals reversed, noting that the accommodation doctrine had never been extended to groundwater. The plaintiff appealed. The Texas Supreme Court reversed the appellate court and held that the accommodation doctrine applied to groundwater. Thus, the doctrine would apply in situations where the owner of the groundwater impairs an existing surface use, the surface owner has no reasonable alternative to continue surface use, and the groundwater owner has a reasonable way to access and produce water while simultaneously allowing the surface owner to use the surface. The Court held that the deed language governed the rights of the parties, but that the deed didn’t address the core issues presented in the case. For example, the Court determined that the deed was silent on the issue of where drilling could occur and the usage of overhead power lines and facilities associated with water development. The Court determined that water and minerals were sufficiently similar such that the accommodation doctrine should also apply to water – both disappear, can be severed, subject to the rule of capture, etc. The court also concluded that groundwater estates severed from the surface estate enjoy an implied right to use as much of the surface as is reasonably necessary for the production of groundwater. The Court also extended the accommodation doctrine to the owner of the groundwater right. Thus, unless the parties have a written agreement detailing all of the associated rights and responsibilities of the parties, the accommodation doctrine would apply to resolve disputes and sort out rights. The Court lifted the injunction that had been imposed against the defendant. A concurring opinion believed that the deed language was clear as to the location of well drilling and the accommodation doctrine would not apply as to well location. However, as to access roads and power lines, the concurrence opined that the deed was unclear and the accommodation doctrine would apply. Coyote Lake Ranch, LLC v. City of Lubbock, No. 14-0572, 2016 Tex. LEXIS 415 (Tex. Sup. Ct. May 27, 2016).

Posted April 1, 2016

Public Interest Test Applies Only To New Water Appropriations and Not Water Transfers. In 2010, a corporation filed applications with the plaintiff, state water resources department, to transfer surface water rights that had been used on a ranch in a particular county to a mining complex in a different county. A portion of the water rights were proposed to also be used within the ranch's county to support a conservation program associated with a river. The ranch's county objected to the transfer, claiming that the transfer would negatively impact county residents and would violate the public interest. The plaintiff rejected the county's objections on the basis that the county lacked standing to challenge the transfer because the county didn't have any water rights or other interest protected under Ariz. Rev. Stat. Sec. 45-172 (the water transfer statute). The county appealed, and the state Supreme Court agreed. The court held that the water transfer statute allows the plaintiff to consider only limited factors when deciding whether to approve a transfer of surface water rights and the county did not claim that any violation of the factors and did not possess any vested water rights of its own. The Court also rejected the notion that a water transfer is subject to a public interest test similar to the one imposed on new water appropriations. Instead, the Court noted that water rights can be transferred without state oversight if they don't impact other water users. While the term "interested person" is not statutorily defined, the court held that it meant an owner of a vested water right that might be affected by the transfer. Thus, the county had no standing because it did not hold a vested water right and was simply trying to challenge the transfer on the basis of the interests of its citizens. Arizona Department of Water Resources v. McClennen, 360 P.3d 1023 (Ariz. 2015).

State Proves Navigability of Portion of River. The defendant, State Land Board, made a declaration of ownership over 89 miles of the Rogue River in accordance with the process established by state law. In making such a declaration, the defendant could either get a court to find that the watercourse at issue is navigable or simply make the declaration. Here, the defendant made the declaration after going through the state-prescribed procedures, including public notice of the watercourse at issue. Multiple landowners adjacent to the 89-mile segment sought judicial review, challenging the state's assertion of ownership. Some of the landowners claimed that they own property that is now dry land because the river shifted by avulsion in 1859. The trial court held that the defendant failed to provide sufficient evidence to establish navigability, and noted that the defendant's procedure would have exchanged dry river channel for flowing river channel with the result that some of the plaintiffs' homes on dry land would be located where the river once flowed and would be within the defendant's ownership determination. The trial court awarded the property owners attorney fees and legal costs of over $150,000. On appeal, the court reversed, in part, and remanded the case. The court noted that the defendant's determination of navigability was based on a public notice that didn't provide enough specificity to allow interested persons to discover what land the defendant was actually claiming. However, with respect to a 57.5 mile segment of the river at issue, the court held that evidence of log drives at the time Oregon was admitted to the Union along with post-statehood recreational use that did not differ materially from the type of use at the time of statehood permitted a conclusion that this portion of the river was susceptible to being used as a highway for commerce - the test for navigability. The appellate court also reversed the trial court ruling that the defendant's navigability declaration violated state law because it claimed dry land. The appellate court also vacated the trial court award of legal fees and costs. The fee/cost issue and the navigability issue were both remanded. Hardy, et al. v. State Land Board, 274 Ore. App. 262, 360 P.3d 647 (2015), rev. den., 358 Ore. 550 (2016).

Court Applies Common Enemy Rule to Surface Groundwater. The parties owned adjacent residential tracts and had a dispute over several water drainage issues. The plaintiffs claimed that the defendants constructed an earthen berm that obstructed the flow of water in a drainageway which caused the water to back-up onto their property. The plaintiffs also claimed that the defendants altered the course of another drainageway in a manner that moved it closer to the plaintiff's property line which would create problems when a major weather event occurred. The defendants sought to enjoin the plaintiffs from pumping water onto the defendants' property through a pipe from a sump pump in the plaintiffs' basement, and an award of money damages for loss of trees due to excessive water as a result. The discharge pipe was connected to another pipe beneath the defendant's property, but the system failed and the plaintiffs then discharged water at the property line. The defendants sought and obtained a permit to build a second culvert and an earthern berm at the point of the discharge onto their property and installed a pipe through the berm to facilitate drainage. This caused the water to back-up onto the plaintiffs' property, but the problem was eliminated when the plaintiffs stopped using their dewatering well. The trial court denied the plaintiff's request for injunctive relief and the defendants' counterclaim for tree damage/loss and denied an injunction that would bar the plaintiffs from discharging water via the dewatering well. That ruling was upheld on appeal. The court applied the common enemy rule to the groundwater and held that the defendants, as owners of the servient estate, could, within reason, do whatever they wanted to get rid of the excess water. The court determined that the defendants' conduct was reasonable under the circumstances and the plaintiffs could not get an injunction on that issue. The court also found that the defendants were not entitled to money damages for tree loss due to lack of causal proof. The defendants were also not entitled to injunctive relief that would stop the plaintiffs from using the dewatering well. Kobza v. Bowers, 23 Neb. App. 118 (2015).