The Kansas Supreme Court has denied hearing an appeal from a Garden City corporation whose water rights were restricted by an earlier court ruling.
It’s the latest in a case involving a lengthy water rights battle between a Haskell County farm family, 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.
The case centers around the Gartesons’ vested, senior water right that has been declining for years. They originally filed impairment on the right in 2005 with the Kansas Division of Water Resources.
The brothers, Jay and Jarvis Garteson, dropped the case in 2007 after backlash from the community. In 2012, the brothers decided to file impairment again, this time in Haskell County District Court.
The water right – HS003 – was drilled in the 1930s and is one of the oldest in Haskell County. American Warrior’s two wells were drilled in 1964 and 1976, court documents show.
Vested rights are the most senior rights in the state – rights developed before the Kansas Water Appropriations Act of 1945.
With water law, one rule is the cornerstone – first in time, first in right. 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.
The Kansas Supreme Court announcement stems from American Warrior appealing an April 2015 ruling by the Kansas Court of Appeals.
At that time, Justice David Bruns had affirmed a Haskell County District Court decision, which issued a temporary injunction in May 2014 in favor of the Garetson Brothers and Foreland Real Estate. The court ordered the junior right holder – oil company American Warrior – to refrain from pumping water from its two wells due to the impairment case, according to the court documents.
The state’s Division of Water Resources, which has been studying the case since 2005, has concluded the Garetson vested right was being impaired.
In a final report issued in March 2014, DWR stated that two of American Warrior’s junior water rights account 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.”
Following the ruling, the Garetsons filed a request for a temporary injunction on the pumping of American Warrior’s two wells, according to the court documents.
American Warrior appealed the ruling to the Kansas Supreme Court. The court denied the request on Jan. 25. “We are pleased that our long-held position is being confirmed,” said Jay Garetson after learning of the denial.
O’Brate did not immediatly return a call from The Hutchinson News at the time.
The case, however, is still ongoing. It will return to Haskell County, where the Garetsons seek a permanent injunction.
If realized, the case could set a precedent. Such a law hasn’t been tested often among groundwater users, especially in the Ogallala Aquifer of western Kansas.
At present, the state is working on a surface water impairment claim filed by Quivira National Wildlife Refuge. A report by DWR indicates the wetlands was indeed impaired by junior water right holders. But impairment has not been finalized and both stakeholders are working on solutions.
Public comment on that report is being taken through April 15.