Sioux County producers sue over Niobrara water
By KERRI REMPP, Record staff writer Friday, November 14, 2008
A dry stream-bed at Pumpkin Creek, a multi-million dollar lawsuit between Kansas and Nebraska over the Republican River and a several-year drought has water, and the lack of it, at the top of every ag producer’s mind.
That’s particularly true for a group of Sioux County producers who have filed a lawsuit against Department of Natural Resources director Brian Dunnigan to protect their water rights. The individuals represent 11 farming and ranching operations south of Harrison along the Niobrara River.
“The river is just kind of disappearing and we’re just trying to protect the river,” said Neil Nunn, who has joined the group that filed the complaint. “If something is not done it will end up like Pumpkin Creek, just a dry stream bed.”
The complaint, filed in Sioux County District Court at the end of September, alleges that the Department of Natural Resources has failed to enforce the Upper Niobrara River Compact, agreed to by Nebraska and Wyoming in 1962. The compact was approved by the Legislature in 1963 and was established “to provide for an equitable division or apportionment of the available surface water supply of the Upper Niobrara River Basin between the States.”
The compact calls for the two states to monitor water use, analyze the data and determine if apportionment is necessary. The issue is to be revisited every two years under the agreement, but Steven Smith, the attorney for the Sioux County landowners, said that has not happened.
“Virtually for decades nothing has been done, at least on the Nebraska side,” he said.
The suit, filed against Dunnigan as acting director of the DNR, claims “significant groundwater development” upstream in Wyoming has affected the Sioux County landowners’ water rights. In addition to surface rights, the landowners possess riparian rights, use shallow livestock and domestic wells and have enjoyed recreational opportunities along the river, the complaint says.
“What the lawsuit seeks is to get the director to enforce the authorities he was given,” Smith said. “That’s the only protection they have up there is the State.”
Nunn, who has been on his place since 1991, said over time the Niobrara River has had less and less water, making it harder to use for riparian rights and irrigation.
“We haven’t been able to irrigate near as much as we could. It’s cut down on our hay production seriously.”
Jim Skavdahl, another plaintiff in the suit, told the Omaha World Herald the state took away water rights that hadn’t been used in some time during the 1990s.
Lyndon Vogt, director at the Upper Niobrara White NRD, said the NRD added a moratorium on wells in the area in March 2003. The NRD is also requiring producers along the Niobrara above the Box Butte reservoir to put in flow meters by March 1, 2009.
However, landowners in Wyoming are not restricted as yet.
“Nebraska landowners can’t expand their uses … and in Wyoming they still can,” Vogt said.
Skavdahl said more should have been done to protect the Nebraska users.
“The state should have been up here seeing to it that the headwaters were not being developed,” he told the World Herald.
Plaintiffs in the case include: Mike Wickersham; Ray T. Dout Ranch and Cattle Inc.; Anne and William Wilson; Carol and Jeffery Webb; Prairie Plains Resource Institute Inc.; 33 Ranch LLC; Six Bar Ranch Inc. and Joe R. Nunn Trustee, Joe R. Nunn Trust; Neil and Kathleen Nunn; Agate Springs Ranch; Skavdahl Brothers Inc.; William Skavdahl; James and Maureen Skavdahl.
Smith said the case is currently on the docket December 12 for motions on procedural matters in Sioux County District Court.
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