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Judge rules in favor of southwest Kansas farm family's senior water rights

Travis Morrise
The Hutchinson News

With Kansas' Ogallala Aquifer continuing to decline, a Haskell County farm family tested the age-old water law adage "First in time, first in right," and won.

Haskell County District Court Judge Linda Gilmore ruled Wednesday in favor of the Garetsons and their more-than-80-year-old vested senior water right in the county, granting a permanent injunction against American Warrior - shutting off the company's two junior water wells that are impairing the Garetsons' right.

A temporary injunction that curtailed pumping of the junior water rights while the court settled the matter has been in place since 2013.

Wednesday's ruling is the latest in the case involving a lengthy water-rights battle between the Garetsons and American Warrior, a company owned by Cecil O’Brate. O’Brate, of Garden City, has energy and agricultural interests in southwest Kansas.

"It's only been 11 years coming," said Jay Garetson, adding, "Not that long, I guess, if eternity is your measuring stick."

The overriding costs of the lawsuit, along with the delays and inaction by the state, are still present, he said. And the Ogallala - the vast western aquifer that his family has fought for - is still being sucked dry.

"We are greatly trying to protect what has to be one of the basic and precious resources that is required to live," he said.

First in time

With too many irrigation wells appropriated over the years, western Kansas' Ogallala Aquifer has been slowly depleting for at least eight decades.

A fifth-generation farmer, Garetson said that if nothing changes in a few years, his area of western Kansas will run out of irrigation water. He has watched the declines only get worse. State figures indicating that Kansas will use 75 percent of its water in 50 years if nothing is done, are on the low side, he said.

With little action by state and local officials occurring, Garetson, his brother, Jarvis, and their families made an unpopular decision several years ago: They decided to test the state’s water law.

Water can be a contentious topic, after all, especially in western Kansas. A water right is a property right. And the Garetsons have heard the negative comments from residents.

However, said Jay Garetson, "the status quo is no longer an option."

Few have tested it

With western water law, one rule is the cornerstone: First in time, first in right. It's a law that started in the late 1800s during the ditch irrigation days in western Kansas to protect users, said Burke Griggs, a former assistant attorney general who now is an associate professor at Washburn School of Law and a water-law expert.

In 1945, the Kansas Legislature approved the Water Appropriation Act, which is still the foundation of the state's water law. It put the entire state - whether surface water or groundwater - under the first-in-time water doctrine.

The longtime law gives senior water rights priority over junior rights. Thus, if a senior right is impaired, then the owner of the junior right could be ordered to reduce irrigation from their well or be shut off completely. Moreover, wells drilled after 1945 couldn't impair - in any way - a senior water right. If they did, the state wouldn't approve them.

" 'First in time, first in right' has been the rule for groundwater in all of Kansas since 1945," Griggs said.

After World War II, technology developments such as center-pivot irrigation allowed more farmers to access the Ogallala more easily. In 1957, the Legislature softened the 1945 law after seeing the potential to develop the rich reservoir of water. New wells could go in, as long as the applicant for the new well could show that it would not impair a senior water right "beyond a reasonable economic limit," Griggs said.

However, lawmakers didn't change the foundation of Kansas water law, said Griggs.

"They were very clear they weren't changing the standard for protecting Kansas water and established water rights," he said.

Fighting for water

The law hasn’t been tested often among groundwater users, especially in the Ogallala region, said Kenneth Titus, chief counsel for the Kansas Department of Agriculture.

Over the years, despite the overpopulation of rights and the shrinking of western Kansas' lifeblood - the Ogallala - state officials have rarely shut down junior wells.

Titus said there have been less than 10 impairment claims and investigations in the Ogallala region. Of those investigations, there have been just two instances where water rights were administered.

"One of those is the Garetsons," Titus said.

At the center of the Haskell County battle is the Garetsons’ vested, senior water right – HS003. Vested rights are the most senior rights in the state – rights developed before the Kansas Water Appropriations Act of 1945. Drilled in the 1930s, the well was the third water right granted by the state in Haskell County.

It's also been declining for years. When Jay Garetson was growing up on the farm 30 years ago, the well pumped 1,500 gallons per minute. Now it can barely pump 300 gallons a minute. The Garetsons have redrilled the well twice since 1977, when they purchased the land.

The Garetsons have their own junior rights. However, knowing that if nothing changes there might not be enough water for future generations, he and his family filed an impairment claim in 2005 with the Kansas Division of Water Resources regarding his family’s oldest water right.

"It was a combination of wanting to secure the opportunity for our farm's future generation, as well as the opportunity to secure water for all generations," Jay Garetson said.

The family dropped the case in 2007 after backlash from the community.

“Our goal has been to bring attention to the urgent state of decline of the Ogallala Aquifer in GMD No. 3,” the Garetsons wrote in their withdrawal letter. “Rather than being a positive catalyst for change in the effort to extend the useful life of the aquifer as a whole, we have been perceived as selfishly damaging our neighbors for our own gain.”

In 2012, the brothers decided to file to protect their right from impairment again, but this time in Haskell County District Court.

"As my wife, Jill, says, 'All we seem capable of is admiring the problem,' " said Jay Garetson.

The case

In June 2012, the Garetsons filed a lawsuit alleging impairment of the senior right by two wells - one drilled in 1964 and the other in 1976. Both wells are now owned by American Warrior, court documents show.

The state’s Division of Water Resources, which has been studying the case since 2005, became the factfinder in the case. Staff concluded the Garetson's vested right was being impaired.

In a final report issued in March 2014, DWR stated that, when all the six neighboring wells to the Garetsons' well were pumped, two of American Warrior’s junior water rights accounted for about half of the impact on the Garetson senior right.

DWR determined that if the senior right is to be protected, “the pumping of water by (American Warrior) and the other junior water right holders must be significantly curtailed.”

Titus said that, according to the court document, DWR noted that the only other suggested alternate remedy to total curtailment is to allow only one other of the five neighboring water rights to operate yearly, possibly on a rotating basis. DWR suggested that the one neighboring well allowed to operate be determined on the basis of seniority or distance from the Garetsons’ well.

Griggs noted that American Warrior did try to argue its wells weren't impairing the Garetson well by an "unreasonable economic limit, so they shouldn't be shut off." But Kansas' water-law forefathers never changed the foundation of the 1945 law.

Impairment is impairment, said Griggs, adding that the court got the ruling "exactly right."

Waiting game

Griggs said both parties have 30 days to appeal the court's ruling.

He added American Warrior attempted to take a temporary injunction against its wells all the way to the Kansas Supreme Court. In 2014, the Kansas Court of Appeals affirmed the preliminary injunction shutting off American Warrior's wells. Last year, the Supreme Court declined to hear the case, and so the Court of Appeals decision remains binding law.

Does the case set a precedent? Griggs said the chief engineer has a statutory duty to conserve the water and protect the water rights. However, he said, that doesn't mean he will "on his own initiative come into this Haskell County fight and start shutting people down."

But there are other measures - like an intensive groundwater use control area - that could curtail water use. But a better tool in the toolbox, which gives water users more control, is a Local Enhanced Management Area, whereby farmers voluntarily come together to come up with a plan of cutbacks for a certain period of time. However, after it's implemented, the plan does have teeth and is enforced by the chief engineer.

Sheridan and Thomas counties have a successful LEMA. There hasn't been talk of a LEMA in southwest Kansas, said Titus, adding he spoke with Chief Engineer David Barfield, who said that Garetsons in 2005 requested an Intensive Groundwater Use Control Area for his section of the county - a mandatory measure implemented by the chief engineer and which could involve mandatory cutbacks. However, GMD 3 wasn't interested, so Garetson filed the impairment case.

Garetson said Gov. Sam Brownback deserves credit for talking about a solution more than the prior five governors combined.

"The question is, why won't he act," said Garetson, adding mandatory regulations might be the only way to get the ball rolling in some areas, adding regulation would help "get the groundwater management district to finally believe their stalling tactics are no longer going to be tolerated."