Pumpkin Creek case closed

The lawsuit over the little western Nebraska stream that became a big State Supreme Court case is over.

Spear T Ranch has settled with more than a dozen upstream ranchers and farmers in a dispute between irrigators feuding over water in Pumpkin Creek.

The agreements end an eight-year legal quest by Rex Nielsen of Gering to stop his upstream neighbors from drying up the stream by pumping underground water and to pay him for lost creek flows.

Along the way, the Nebraska Supreme Court ruled for the first time how conflicts will be resolved between irrigators who pump underground water and those who divert water in streams and rivers.

“When you lose your water, it's disappointing how time consuming, difficult and incredibly expensive it is to try to get compensation for damages,'' Nielsen said Tuesday. “I hope this case has meaning.''

Each of the defendants agreed to pay monetary settlements, said attorney Jeanelle Lust of Lincoln, who represented Spear T Ranch.

Neither Nielsen nor Lust revealed the total amount of the settlements. Nielsen's original claim sought $4 million in damages.

“I don't think Spear T Ranch came out ahead on this,'' Lust said. “There is still no water (restored in the creek), and the defendants don't have to provide any water.''

Pumpkin Creek is a remnant of an ancient stream that rises amid the Wildcat Hills near Harrisburg in the driest nook of Nebraska.

The stream flowed uninterrupted during the Dust Bowl years of the 1930s, but it couldn't survive soil conservation techniques and groundwater pumping for irrigation that robbed water from the creekbed during the last decades of the 20th century.

Nielsen, who has state-granted irrigation rights to water in the stream, asked the State Claims Board to award $4 million in damages in 1991. The claim was rejected.

The ranch sued the state in 2002 and upstream neighbors in 2003. Nielsen claimed their groundwater pumping dried up the stream, and dried up the ranch's water rights.

Nielsen argued that underground water feeding the stream should be legally treated as surface water. This would mean that conflicts between stream diverters like Nielsen and pumpers of groundwater would be resolved on the basis of surface-water law, which grants rights based on the date a water claim is filed.

The case attracted significant legal attention. Nineteen parties were involved in the appeal to the Nebraska Supreme Court.

The Nebraska attorney general argued that applying surface-water law to the Spear T Ranch case would legally undermine groundwater management laws and Nebraska's Republican River litigation settlement with Kansas.

The high court decided in 2005 that the ranch could sue the groundwater pumpers. To win, however, evidence would have to show that the upstream groundwater pumping had a “direct and substantial effect'' on the stream or caused unreasonable harm to the Spear T Ranch.

Nielsen said stream flows and groundwater pumping could coexist if the local water management agency — the North Platte Natural Resources District — would set that goal.

Lust said it will take comprehensive legislation to fix the problem, “rather than relying on individuals to sue their neighbors to see what they can get accomplished.''

Contact the writer:

444-1127, david.hendee@owh.com

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