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Archive for Tuesday, March 13, 2001

Settlement unlikely in Kansas-Nebraska water lawsuit, lawyer says

March 13, 2001

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— An attorney representing Nebraska in its Republican River lawsuit with Kansas says prospects are dim for the two states reaching an out-of-court settlement after an offer from Gov. Mike Johanns.

"Kansas doesn't share a willingness to come back to the (negotiation) table, at least today," Deputy Nebraska Atty. Gen. David Cookson said. "They did not have an enthusiastic response to the telephone call."

Cookson's comments came late last week during a board meeting of the Lower Republican Natural Resources District.

Special Master Vincent McKusick, who was appointed by the U.S. Supreme Court to hear the case, ruled last month he will not count water pumped from wells before 1994 in deciding the case.

Kansas filed a lawsuit in 1998 accusing Nebraska of violating an interstate compact by allowing irrigators to divert more than their legal share of the river's water.

Kansas says Nebraska breached the compact by allowing the proliferation and use of thousands of wells connected to the river and its tributaries along the state's southern border.

The 1943 compact agreement spelled out distribution of the Republican River's waters, with Nebraska getting 49 percent, Kansas 40 percent and Colorado 11 percent.

Nebraska has argued that groundwater use is not regulated by the compact, which also was signed by Colorado, because it was signed before deep-well irrigation was used in the river basin.

Atty. Gen. Don Stenberg said the practical effect of the ruling virtually eliminated any chance for Kansas to recover significant damages.

John Campbell, senior deputy Kansas attorney general, had argued Stenberg read the order narrowly and he did not believe correctly.

Campbell said the ruling applied to deep irrigation wells and not shallow wells near the Republican River, which were of more concern to Kansas.

He said the master's ruling helped Nebraska a little in its effort to avoid paying monetary damages but helped Kansas in its effort to recover water.

The two states have been asked to detail their claims for injury before McKusick in Denver on May 30. The case is scheduled for trial in March 2003.

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