THE BATTLE AT PUMPKIN CREEK
A drained stream is at the heart of a legal fight between a family ranch and 17 groundwater irrigators.
RACHAEL SERAVALLI
MORRILL COUNTY - Willowy grasses on the Spear T Ranch feed 500 or so head of grazing Red Angus. The Wildcat Hills - named for the bobcats that live there - are to the north, and miles of prairie and farmland spread out in every other direction.
It is, by all appearances, a healthy ranch.
But Rex Nielsen, who operates the Spear T with his brothers Eric and Kim, said it has seen better days.
He looks down into a depression on his land. At the bottom is a small pool of muddy water lined with hoof prints. The temperature is in the 100s this July day, and despite good rainfall in recent weeks, the watering hole's days are numbered.
"Pretty soon they won't be able to drink that water," Nielsen said. "We're going to have to figure something else out."
The watering hole and a couple others like it are all that's left of the mile of Pumpkin Creek that bisects the Spear T property, far from the healthy supply the Nielsens once tapped to irrigate almost 300 acres of alfalfa and hay. Now the empty creek bed winds away on each side of the hole.
The creek's virtual disappearance is at the heart of a lawsuit that has brought tension between surface-water and groundwater users to a head. In early 2003, Spear T sued the 17 biggest upstream groundwater irrigators for $4 million in damages.
Although state legislators have tweaked water laws twice in the past decade, they have been unsuccessful in heading off these highly anticipated disputes or in integrating the laws that separate the two types of irrigators.
If Spear T loses, it will be up to the next high roller to prove that groundwater irrigators have harmed their surface-water-irrigating neighbors. But a win for the ranch could change water regulation in Nebraska forever.
The Nielsens blame upstream groundwater irrigators for drying up the creek by pumping too much water out of the ground. Attorneys for groundwater irrigators say the creek could have dried up for any number of reasons, drought chief among them.
But groundwater and surface-water irrigators face a significant barrier to resolving such disputes: They are governed by separate laws.
Surface-water users are given seniority to a stream's water, depending on when the state granted their water rights, commonly referred to as "first-in-time, first-in-right." Groundwater users are merely limited to "reasonable and beneficial" use of the water and to equitable portions in times of shortage.
That difference won't change if Spear T wins, but a court could bridge the legal void by finding for the first time that groundwater irrigators caused unreasonable harm to a surface-water irrigator.
The Spear T case also could set a legal precedent in Nebraska because of what scientists have said for years:
Some ground and surface waters are physically linked.
While some judges accept what scientists call a hydrologic connection between surface water and groundwater, finding the appropriate common law to apply to the dispute has been a challenge.
In a pivotal ruling in 2005, the Nebraska Supreme Court said Spear T could sue groundwater pumpers for damages, opening the door for such lawsuits and potentially pitting neighbor against neighbor. Rex Nielsen is pushing forward with his case against 17 upstream groundwater irrigators in Banner County. And he dismissed the potential for sentimentality.
"There's no compassion, even between groundwater pumpers," he said. "The philosophy is whoever has the deepest well wins."
Crooked as a proverbial snake, Pumpkin Creek begins at the border of Scottsbluff and Banner counties, meanders southeast (back and forth under state Highway 88), and crosses into Morrill County. The Spear T Ranch straddles the creek on the Morrill side of the Morrill-Banner County border. The creek then curves north to feed the North Platte River near Bridgeport.
At least historically, that is what the 85-mile-long tributary has done.
But the creek is mostly dry now, with some flow coming from groundwater pumped out of a nearby well for a couple of fish hatcheries, which then return the used water to the creek. The creek has six tributaries of its own and, in the past, may have begun in Wyoming.
On Feb. 27, 1979, Pumpkin Creek became the first stream in modern Nebraska declared by the state to be closed to further surface-water rights, perhaps foretelling the creek's return to a mere waterless bed. In some stretches, it is hard to tell the creek ever existed. Some farmers treat it as cropland and harvest whatever grass grows there.
The basin has about 6,000 registered surface irrigation acres compared to about 43,000 acres certified for groundwater irrigation, said Ron Cacek, manager of the North Platte Natural Resources District. About 500 registered wells dot roughly 140 farms and ranches in the basin and water such crops as corn, beets and dry edible beans.
"There's not that many surface-water appropriations in Pumpkin Creek," Cacek said. "It's not a very big creek."
But that doesn't make the creek any less valuable to the Nielsens, who have used it - when it ran 15 feet to 18 feet wide and 1 foot deep - as much for recreation as for their livestock operation.
Rex's grandfather, Walter, moved to the ranch in 1932 and secured surface-water rights on Pumpkin Creek in 1954 and 1956, among the more junior rights on the creek. Still, the rights gave the Nielsens permission to divert a total of 4.17 cubic feet per second from the stream. Nielsen, who grew up on the ranch, said the family also used to take paddle boats on the creek, and swam and fished for sunfish, chubs and shiners in it.
Then, in the 1970s, farmers began to develop heavy groundwater irrigation in the basin.
The Nielsens noticed the creek's water diminishing in the mid- to late-1990s. Rex Nielsen's late mother, Audrey, noted in a 1997 diary entry that low water levels in the creek made irrigation difficult. The stream flowed less each year, bouncing back a little when groundwater irrigators upstream shut off their pumps in the winter, Nielsen said.
In 2002, the creek dried up for the first time since the Nielsens could remember. This was the fourth year of drought, so the problem was made worse when groundwater irrigators pumped even more for the lack of rainfall, Nielsen said.
"People had so many excuses for why it was going dry," he said.
Drought was the reason they gave most often, Nielsen said. But that didn't make sense to him because even during the famous droughts of the 1930s, the creek didn't go dry, he said. "The creek flowed constantly."
In addition, the area has had good rain since 2003, but the water table continues to drop, he said.
"If the (natural resources district) had put a stricter control, some of it could be salvageable," Nielsen said. "They could restore the creek level. It's not gone forever. All you have to do is reduce the pumping."
Nielsen said he approached the North Platte NRD board in 1999 when it held a meeting to discuss the possibility of a management area in the Pumpkin Creek basin. But he said he was told the board couldn't help him because natural resources districts largely regulate only groundwater.
"They basically blew me off," he said.
The North Platte NRD did implement a management plan in the basin in 2001. Cacek, of the North Platte NRD, said it wasn't Nielsen but groundwater irrigators worried about the low water table who started the ball rolling. Monitor wells showed the water table was dropping below - and staying below - record low levels, he said.
The plan requires meters on all wells in the basin and restricts groundwater irrigators to 15 inches of water per certified irrigated acre. In 2004, the number was reduced to 14 inches and stayed there in 2005.
Nielsen said that's still too much. He also questions how natural resources districts can be expected to cut off groundwater irrigators when that's mostly who sits on natural resources district boards. Seven of nine North Platte NRD board members are groundwater irrigators, Cacek said.
Natural resources districts have had the power to take action to protect surface-water users since 1996, when the Nebraska Ground Water Management Protection Act was amended by LB108. But the NRDs aren't required by law to take action in such cases nor does the law provide them the power to assess damages in a dispute. LB962, a 2004 law that expanded natural resources districts' powers even more, still does not mandate the North Platte NRD take action. And in July 2005, the Nebraska Supreme Court ruled Spear T could not sue the Nebraska Department of Natural Resources, which oversees surface-water regulations.
This has forced the Nielsens to the next level legally, and they aren't alone.
The Central Nebraska Public Power and Irrigation District said groundwater pumpers in the basin have lowered the water level downstream in Lake McConaughy, the state's largest reservoir. Central's 1,300 irrigation customers are in the south-central part of the state, far downstream from Pumpkin Creek.
Tim Anderson, Central's public relations manager, said Central conducted its own analysis of water loss and found that pumping in the Pumpkin Creek basin prevents about 20,000 acre-feet per year from reaching the reservoir. One acre-foot is the amount of water needed to cover one acre with a foot of water.
Central has asked to be considered a party to the lawsuit along with Spear T. The Nebraska Supreme Court heard Central's appeal on Feb. 8; Anderson said he expected a decision by this spring. If the court decides against Central, he said, the district would consider its own lawsuit against irrigators.
"We could sue the same defendants in the Pumpkin Creek case, or we could single out one irrigator, or we could sue everyone in the basin that's hydrologically connected," Anderson said. "There are other options available to us if we're denied this opportunity."
Court rulings from interstate lawsuits with Wyoming and Kansas recognize the hydrologic connection, as do the North Platte NRD and the Department of Natural Resources, so Central is confident it has a good case, Anderson said.
"We think that proving the connection will be very, very easy. That won't be the case. The case will revolve around what are the damages," he said.
Groundwater irrigators don't think the issue is quite so settled.
Jim Mathis, attorney for groundwater irrigators Leeray and Beverly Edens, said his clients live about 25 miles from the Spear T and six miles off the creek.
"The problem with the aquifer in Banner County in the Pumpkin Creek area is it's not a nice even sand or gravel aquifer. It's fractured brule, so water isn't uniform," Mathis said. "It flows in cracks under the ground - horizontally, vertically - and so... it's difficult to impossible to trace the source of those cracks and, ultimately, where it ends up."
Philip Kelly, who represents groundwater irrigators Richard and Margaret Van Pelt, said he anticipated a technical case involving several experts on both sides. His clients' operation is more than 30 miles from Spear T.
"My client's position is that he hasn't caused any damages," Kelly said.
"Spear T will have to establish how much damage my client's pumping caused, and that's going to be difficult to do."
Though the Nebraska Supreme Court has recommended integrating the two legal systems governing groundwater and surface water, doing so would be complex and expensive, said David Aiken, water-law specialist at the University of Nebraska-Lincoln. And groundwater irrigators outnumber surface-water irrigators nine-to-one in Nebraska, making such a change politically unpopular, he said.
If the court rules that Central can join Spear T in the case, hundreds of other groundwater irrigators likely will want to join the case on the other side, Aiken said. That means a trial could be up to two years away.
Sen. Philip Erdman of Bayard, whose district includes the Pumpkin Creek basin, declined to comment directly on the case but said Nebraska water law was working as intended.
"There are other states with a single system, but it's very expensive with lots of lawsuits, and they still don't find answers," Erdman said. "The goal is to solve problems without creating more. Does that mean we want every dispute resolved with case law? No. But it's part of the process."
When the case finally goes to trial, attorneys for groundwater irrigators will likely try to confuse the jury on the issue of whether there is a hydrologic connection, Aiken said. Spear T has a very strong case, he said, but the groundwater irrigators will make the ranch earn a ruling in its favor.
"The first win is always the hardest," he said, "but I'll be awfully surprised if a jury says they (groundwater irrigators) don't have to pay damages. The Spear T case is going to be the most famous case in Nebraska, so they should get some credit for that."
Back at the Spear T, cattle gathered at another watering hole, dug deeper with an excavator in 2001 and 2003 when the water table dropped. But that one also was very low, so Nielsen considered an alternative water source. He drilled a small well in July of 2005 to water the cattle near the corral and is considering installing a well system to pipe water to the ranch's five pastures.
"We're getting in the mode of planning for the worst," he said.
The Nielsens could have gone to intensive groundwater pumping, as have other farms and ranches that run out of surface water, but not all farmers and ranchers feel compelled to intensify their operations with irrigation, Aiken said. In the decades since they bought the ranch, the Nielsens have restricted their herd to a few hundred head.
At another section of the creek, Nielsen pointed to a lake bed that covered 10 to 20 acres when it had water in it and attracted Canada geese and herons. Just downstream, a diversion dam no longer fed water to the creek. The dam was built to prevent beavers from building there.
"That's not a problem anymore," Nielsen said.
Thomas Oliver, attorney for Spear T, said winning the case can do more than just compensate the Nielsens. The case, filed in Morrill County district court, is on hold until the Nebraska Supreme Court decides whether to let Central join the case.
"They have suffered damages, and losing the creek has had economic consequences," Oliver said. "But the running streams in Nebraska are going to go dry. Water policy in Nebraska is draining our creeks and our rivers."
Nielsen said his children understand the significance of the creek drying up, and he laments the fact that they won't have it, too. And, of course, he also wants to keep the ranch viable.
"At times I've thought it's more trouble than it's worth," he said, "but abandoning it is not in our plans."
