Nebraska Supreme Court upholds dismissal of Cappel suit against DNR

For the third time this year, the Nebraska Supreme Court has upheld the district court dismissal of water suits brought by surface water users in the Republican River Basin.
    On Friday, the Supreme Court upheld the dismissal of a suit brought by Rod and Steve Cappel and Cappel farms collectively over the state’s closing of surface water for compact compliance.
    The original suit claimed the Cappels suffered economic damage and a violation of their constitutional rights to due process from the state’s “taking” of surface water in 2013-15.
    They also claimed excessive groundwater pumping in the basin during this period was a detriment to their surface water appropriations.
    That suit was dismissed by Hitchcock County District Judge James E. Boyle, IV, in October 2016.
    In 2013-2015, the Department of Natural Resources declared a “compact call year” for compact compliance. DNR issued closing notices to surface water irrigators in the eastern half of the basin, not allowing them to use surface water appropriated to them.
    DNR, which regulates the use of surface water in the state but not groundwater, used the water towards compact compliance with Kansas,  
    The Cappel suit was filed against the Department of Natural Resources and its director, Jeff Fassett.
    The Supreme Court indicated the state has sovereign immunity due to it’s obligation to remain in compact compliance (which is essentially a federal law).
    As a result, that sovereign immunity always trumps the surface water users’ appropriation rights.
    Because of this sovereign immunity, several of the Cappels’ claims should have been dismissed at the district court level for lack of subject matter jurisdiction.

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