Water spreads across the normally dry bed of the Medicine Creek on March 21 at the Estermann Hereford Ranch. The Estermanns would prefer Lincoln County keep its water.
Legal briefs are being filed in a court action to stop the government from condemning land along the Medicine Creek, which is now flooded by high water flowing toward Kansas.
Dan Estermann, on behalf of his family’s purebred Hereford ranch, is asking a Lincoln County District Court to stop an agency of Natural Resource Districts from claiming the right to flood the land along the creek.
That water is the key element in $120 million southwest Nebraska project that aims to quell Kansas’ complaint that Nebraska is using more than its fair share of Republican River water.
Operating cooperatively in an inter-local agency called N-CORPE, (Nebraska - Cooperative Republican Platte Enhancement) -- four Natural Resources Districts have installed new pumps and pipelines to take water out of the aquifer below a mega-farm in southern Lincoln County.
The water began flowing into the Medicine Creek in March, bound for the Republican River and on toward northern Kansas, nearly 170 miles from the source.
The Estermanns will suffer loss of hay, pasture and winter cover for their cattle from the high water.
In early April, Estermann and North Platte Attorney George Vinton asked for a temporary restraining order to stop the condemnation proceedings before they were held, but Lincoln County District Judge Richard Birch denied their request. Birch said they would have the opportunity to undo the condemnation if the court ultimately upholds their claim.
So, a panel of three appraisers was appointed. The panel awarded the Estermanns three times more than they were offered in court for damages.
The panel listened to arguments from both sides for two hours April 7. Then they all went to the Estermann ranch to personally look at the situation.
The N-CORPE project director, Jasper Fanning of the Upper Republican NRD, offered to pay a one-time fee of $17,750, an amount he derived from land sales as well as tax valuations during the last four years.
But the Estermanns said they expect to lose 20 percent of their meadow hay production on the ranch – some 150 tons -- as well as shelter for their cow herd during calving season. They said $17,000 would hardly pay the replacement cost of the hay for one year.
Estermann said there has only been one flood in more than 100 years that raised the creek as high as it is when water is running toward Kansas.
Estermann claimed considerable harm. He told the appraisers that at one point N-CORPE offered him $65,000 in compensation, but “I told them I’d give them $60,000 if they’d go away.”
On April 15, the appraisers reached a decision. They declared that the Estermanns are entitled to $53,440, plus installation of three culverts, a berm to contain the water that flows through, as well as yearly payments for crop damage
In the underlying request for the injunction against the condemnation, Estermann and Vinton assert that N-CORPE does not have authority to claim eminent domain because N-CORPE is an inter-local government agency.
Judge Birch accepted written arguments from both sides on April 30, as well a brief from the Nebraska Attorney General's office, who filed as a “friend of the court."
Birch made one ruling on April 30 -- that no claims could be filed against the three appraisers for participating in the condemnation proceeding.
Birch also allowed attorneys a week to study the April 30 filings and respond further. He said additional filings must be complete by May 7.
Most of this report was first published in the Bulletin's April 15 print paper. The status of the case was updated May 5.