Compacts do have teeth

Maybe it comes best from a state Supreme Court, rather than from Washington.

Still won’t go over well. But maybe, there’ll be more acceptance and credibility in the call.

The case in question, for which a decision was released on March 10, is Greg Hill v. Nebraska Department of Natural Resources, and while the subject is water, the nature of the complaint involves more philosophical and ideological matters.

The background of the case is in the Republican River Compact, an agreement Nebraska has executed with Colorado and Kansas, along with associated state regulations. The water users argued that the state’s actions under the compact amounted to a “taking” under terms of the state constitution, which “amounts to a permanent physical invasion.”

More specifically, as the court laid it out, “In their complaints, the appropriators alleged that each holds prior appropriation rights to surface water and that in each crop year, there was available surface water within Nebraska’s allocated share of the Basin’s waters which was not needed to meet Nebraska’s obligations under the Compact. The appropriators further alleged that the available water was taken from the appropriators and given to Kansas, in excess of the requirements of the Compact, and constituted inverse condemnation of their water rights.”

None of that sold with the court. Simply, it found “We find that the Compact, as federal law, supersedes the appropriators’ property interests. We further find that the DNR does not have a duty to regulate ground water; thus, a failure by the DNR to regulate ground water pumping that affects the Basin does not give rise to a cause of action for inverse condemnation.”

Moreover, the use of water within Nebraska isn’t the only consideration when a compact is in place: The concerns of the other participating states matter as much.

So the U.S. Supreme Court likely would find as well, because it has determined in the past that interstate compacts can be enforced, and because the place to get terms of a compact enforced is federal – the U.S. Supreme Court, or in action through Congress. The Nebraska decision runs with the flow of federal and state court decisions on compacts over a stretch of time.

Because the decision came at the state level – and odds are that’s where it will rest – it may find a little greater acceptance locally.

Or not. But if not, the followup clearly would be an exercise in frustration.