Ag Law Case Annotations

Frick Farm Properties, L.P. v. Kansas Department of Agriculture, No. 98, 750, 2009 Kan. LEXIS 845 (Kan. Sup. Ct. Sept. 25, 2009), aff'g, 40 Kan. App.2d 132, 190 P.3d 983 (2008)(buyer of farm property failed to carry burden of proof to show lawful and beneficial use of water, or due and sufficient cause for non-use; substantial evidence existed that prior owner had failed to use without cause for statutorily required five-year period).

A Duda and Sons, Inc. v. St. Johns River Water Management District, No. 5D08-1700, 2009 Fla. App. LEXIS 9759 (Fla. Ct. App. Jul. 17, 2009)(defendant's interpretation of its surface water regulation which contains agricultural exemption partially upheld; but portion of regulation abrogating exemption for agricultural drainage activities that are "predominant" where "predominant" defined as "more than incidental" invalidated).

Atkinson v. Corson, WD69035, 2009 Mo. App. LEXIS 977 (Mo. Ct. App. Jun. 30, 2009)(court upholds jury determination that defendant violated the state law rule of reasonable use of surface water by constructing berm blocking flow of water which caused the water to back-up on the plaintiff; case remanded for new trial on plaintiff's claim for punitive damages because evidence of defendant's "spiteful" conduct present).

Halpin v. Schultz, No. 106537, 2009 Ill. LEXIS 930 (Ill. Sup. Ct. Jun. 18, 2009)(plaintiff had right, under state drainage code, to enter onto defendant's property to replace underground drainage tile and repair covered drain tile system already in place; no extension of existing drainage tile involved).

Shipe v. Public Wholesale Water Supply District No. 25, 210 P.3d 105 (Kan. Sup. Ct. 2009)(landowners not holding rights to appurtenant water have standing to object to a temporary easement on their property, but do not have standing to object to condemnation of water rights which they do not possess; question of whether defendant can condemn water rights over plaintiff's property not ripe for decision because plaintiff does not hold water rights and current eminent domain proceeding does not seek a permanent easement for point of diversion).

Pacific Land Partners, LLC v. The Department of Ecology, No. 26033-0-III, 2009 Wash. App. LEXIS 1390 (Jun. 9, 2009)(plaintiff's nonuse of water right not excused and right properly forfeited for nonuse).

Omohundro v. Sullivan, et al., No. S-08-0027, 2009 Wyo. LEXIS 40 (Wyo. Sup. Ct. Mar. 13, 2009)(language in subdivision covenant requires unanimous approval among tracts for transfer of water rights to a neighboring city).

Otter Creek Reservoir Co., et al. v. New Escalante Irrigation Co., No. 20060942, 2009 Utah LEXIS 23 (Utah Sup. Ct. Mar. 3, 2009)(water rights can be obtained by adverse possession through seven years of continuous, uninterrupted, hostile and notorious adverse use if the seven year period is completed prior to 1939 change in applicable law).

The North Sterling Irrigation District, et al. v. Simpson, P.E., et al., No. 08SA29, 2009 Colo. LEXIS 200 (Colo. Sup. Ct. Mar. 2, 2009)(state water engineer has authority to implement a fixed water year in administration of plaintiff's storage rights).

Drake v. Walton County, No. 1D07-3202, 2008 Fla. App. LEXIS 17597 (Fla. Ct. App. Nov. 21, 2008)(defendant’s diversion of water across portion of property originally purchased by plaintiff’s deceased parents constituted inverse condemnation; case remanded for determination of value of taking).

Bitterroot River Protective Association, Inc. v. Montana Department of Fish, Wildlife and Parks, No. DA 06-0520, 2008 MT 377 (Mont. Sup. Ct. Nov. 17, 2008)(irrigation permits required for withdrawal of water for agricultural purposes from side channel of Bitterroot River, and public access allowed up to high-water mark; court utilized expansive definition of “natural” in reaching decision which term was not limited to artificial or manufactured).

Bihuniak, et al. v. Roberta Corrigan Farm, L.P., et al., 17 Neb. App. 177 (Neb. Ct. App. 2008)(action against farm for development on farm land that changed amount of surface water flowing onto plaintiff's land which damaged plaintiff's land and crops dismissed; plaintiff failed to plead negligence and failed to prove that discharge of surface water was negigent - water continued to flow in same natural drainageway that it did before construction activity).

Buffalo Park Development Co., et al. v. Mountain Mutual Reservoir Company, No. 06SA373, 2008 Colo. LEXIS 1001 (Col. Sup. Ct. Nov. 3, 2008)(defendants, small capacity well owners, challenged plaintiffs' application for conditional water rights and augmentation plan for 205 wells to support five new residential subdivisions; trial court approved defendant's application for two of the subdivisions and Supreme Court affirmed because defendants did not prove the existence of unappropriated water for the conditional ground rights in three of the subdivisions or a non-injurious augmentation plan sufficient to protect the vested ground water rights of small domestic well owners who divert water from the aquifers between the proposed three subdivisions and the surface waters of the creeks at issue).

Upper Big Blue Natural Resources District, et al. v. State, 276 Neb. 612 (2008)(in determining whether any river basin, sub-basin or reach is fully appropriated, defendant (State Department of Natural Resources) may, pursuant to the Nebraska Groundwater Management and Protection Act, consider a geographic area located in one river basin that is hydrologically connected to a second basin when determining that the second basin is fully appropriated).

Casitas Municipal Water District v. United States, No. 2007-5153, 2008 U.S. App. LEXIS 20297 (Fed. Cir. Sept. 25, 2008)(defendant’s diversion of water for wildlife protection purposes (endangered steelhead) constitutes compensable taking – plaintiff, not state of California, owns the water at issue; defendant’s argument that water was not taken but was merely regulated, rejected; however, plaintiff must pay for installation of fish ladder as part of operational and maintenance costs of running the diversion in accordance with prior contract; estimated that water right at issue worth $80 million).

Kruer v. Three Creeks Ranch of Wyoming, L.L.C., No. DA 07 0549 (Mont. Sup. Ct. Sept. 9, 2008)(water right case).

Frick Farm Properties, L.P. v. Kansas Department of Agriculture, No. 98,750 (Kan. Ct. App. Aug. 22, 2008)(buyer of farm property failed to carry burden of proof to show lawful and beneficial use of water, or due and sufficient cause for non-use; substantial evidence existed that prior owner had failed to use without cause for statutory successive five-year period).

Klamath Irrigation District, et al. v. United States, No. 2007-5115, 2008 U.S. App. LEXIS 15013 (Fed. Cir. Jul. 16, 2008)(three questions certified to the Oregon Supreme Court: (1) whether Oregon law precludes irrigation districts and landowners from acquiring beneficial or equitable interests in water rights acquired by the United States (Klamath Basin Water); (2) whether landowners and/or irrigation districts who receive water from the Klamath Basin Reclamation Project and put the water to beneficial use have a beneficial or equitable property interest appurtenant to their land in the water right acquired by the United States; and (3) whether Oregon law recognizes any property interest (legal or equitable) in the use of the Klamath Basin water that is not subject to adjudication in the Klamath Basin Adjudication in situations where surface water rights were appropriated before Feb. 24, 1909, and were not within any previously adjudicated area of the Klamath Basin.

Fort Vannoy Irrigation District v. Oregon Water Resources Commision, No. SC S055361, 2008 Ore. LEXIS 518 (Ore. Sup. Ct. Jul. 10, 2008)(Under Oregon water law, plaintiff (irrigation district) is holder of water rights pursuant to water right certificate, rather than farmer-member of irrigation district; member’s application for change in point of diversion denied because not “holder” of water rights).

Heeringa v. Petroelje, No. 274852, 2008 Mich. App. LEXIS 1334 (Mich. Ct. App. Jul. 1, 2008)(boundary line case involving riparian bottomlands in lake; Government Land Office plat serves as underlying basis for determining thread line, but thread line depended on shoreline as determined by all available evidence rather than meander lines alone; rule under state law is to equitably apportion useful riparian rights to riparian owners).

In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings, No. S138974, 2008 Cal. LEXIS 6737 (Cal. Sup. Ct. Jun. 5, 2008)(joint federal/state effort to address conflicts and provide solutions to competing interests for water in California’s largest water distributions systems complied with state law; reversal of state appellate court).

Guitar Holding Co., L.P. v. Hudspeth County Underground Water Conservation District No. 1, et al., No. 06-0904, 2008 Tex. LEXIS 513 (Tex. Sup. Ct. May 30, 2008)(local groundwater conservation district exceed rule-making authority in grandfathering existing wells without regard to both historic amount of groundwater used and its beneficial purpose; district’s scheme for issuing permits for transfer of groundwater out of district invalid).

Sierra Club, et al. v. Flowers, No. 07-13297, 2008 U.S. App. LEXIS 10059 (11th Cir. May 9, 2008)(plaintiff sued U.S. Army Corps of Engineers (COE) after COE granted CWA permit to plaintiff to extract mining materials from wetlands located between Florida Everglades and Miami; trial court granted permit, but decision vacated and case remanded on basis that trial court did not apply proper APA standard of review to COE’s environmental analysis).

American Petroleum Institute v. Johnson, No. 02-2247 (PLF), 2008 U.S. Dist. LEXIS 24963 (D. D.C. Mar. 31, 2008)(EPA’s 2002 regulatory definition of “navigable waters” (40 C.F.R. §112) under the Clean Water Act found to be arbitrary and capricious and in violation of the Administrative Procedures Act; EPA failed to consider impact of 2001 U.S. Supreme Court opinion in SWANCC and regulation was, therefore, not a product of reasoned decisionmaking and must be set aside).

Coxco Realty, LLC v. United States Army Corps of Engineers, No. 3:06-CV-416-S, 2008 U.S. Dist. LEXIS 16655 (W.D. Ky. Mar. 4, 2008)(CWA wetland case involving “adjacency” issue; case primarily procedural in nature, but also involves proposed constitutional takings claim).