Attorneys to argue motion in court seeking to dismiss lawsuit by irrigators against Nebraska



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BEAVER CITY, Nebraska — Attorneys for Nebraska and a group of southwest Nebraska farmers suing the state over diverted irrigation water will spar in court next week about a motion to dismiss the lawsuit.

A hearing will be held Wednesday in Furnas County District Court on a motion by the state to dismiss the lawsuit, the Kearney Hub reported (http://bit.ly/1qJqrKJ ).

Four Nebraska farmers filed the suit in August, demanding that the state compensate them for irrigation water that was diverted away from their crops to comply with the Republican River Compact.

The farmers say their yields were lower in 2013 because they were denied access to water that should have been stored in nearby dams and canals. Nebraska released the water downstream to Kansas to meet its obligations under the 1943 compact.

The compact allocates 49 percent of the river's water to Nebraska, 40 percent to Kansas and 11 percent to Colorado. Nebraska has faced lawsuits from Kansas in recent years for allegedly overusing its supply.

A brief written by the Nebraska Attorney General's Office to support its motion to dismiss the lawsuit argues, among other things, that the court can't order compensation for the farmers because that would be inconsistent with terms of the compact.

If the court finds that the state's actions to comply with the compact amounted to unconstitutional taking of the water, that would contradict terms of the Republican River Compact and hurt the Nebraska Department of Natural Resource's ability to stay within its allocation, the brief says.

But Omaha attorneys David Domina and Megan Mikolajczyk, representing the farmers, say the state has a constitutional obligation to compensate the farmers for taking the water.

"Plaintiffs do not claim the state lacked a right to take the water for a public purpose," the farmers' brief says. "They contend they are entitled to be paid because the appropriation of water for the public purpose chosen is constitutionally and legally inferior to the plaintiffs' ... water right."


Information from: Kearney Hub, http://www.kearneyhub.com/

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