Letter to the Editor

'Friends of the River' need to get a grip

Monday, November 5, 2007

Dear Editor,

It comes as no surprise that our State Supreme Court has declined to consider the lawsuit filed by the coalition "Friends of the River" ("Friends"), who allege our state constitution is being violated by the property tax provisions in LB701.

Why would the high court want to jump in on this controversy? In their view, let one or more local county district courts wrestle with the thing, and then maybe in a couple of years the supremes will have the final say on the matter.

The specific constitutional provision at issue is Article VIII, Section 1A which states, "The state shall be prohibited from levying a property tax for state purposes."

LB701 gives the natural resources districts, not the state, the authority to levy a 10 cents per 100 dollar valuation on property in their districts. This new authority is not mandated by the state and is wholly up to the NRDs whether or not to impose it. "Friends" also allege that the new taxing authority creates what is called a "closed class" in violation of Article III, Section 18 of the constitution. Such is not the case.

Any time in the future other NRDs could impose the LB701 taxes if the state of Nebraska (God forbid) enters into another compact with two other states over, say, Platte or Missouri river water. This fact was specifically addressed at the April 4, 2007, public hearing on LB 701 by the special counsel to the attorney general.

What is baffling to me is that no one from "Friends" testified against LB701, and, specifically, the new property tax authority contained therein at the April 4, 2007, public hearing at the Capitol before the Natural Resources Committee.

Then and there was the time to make the case to the eight senators on the NRC. The legislative record reveals that there were only four opponents to LB701 (Nebraskans First, Nebraska Corngrowers, Barry Richards and Jim Tierney). Of these, only Nebraskans First protested strongly against the property tax and occupation tax on irrigators contained in LB701.

Testifying in support of LB701 were representatives of the Lower, Middle and Upper Republican NRDs. These NRDs were in dire straits and believed that only with new taxing authority could they have a chance at fashioning and funding some program to hopefully attain compliance with the terms of the Kansas settlement agreement.

Frankly, it was sink-or- swim for them because the governor and the state Department of Natural Resources seemed ready to pull the trigger, take control away from the NRDs and impose severe and economically destructive restrictions on groundwater pumping. It is sad that these NRDs were forced by our own state to fall on their sword in a desperate move to avoid an even worse fate.

Bottom line is this: the critical time and place for "Friends" to make their case was at the April 4, 2007, public hearing. The cost of appearing, testifying and lobbying for their cause before LB701 became law would have been minimal, and their chance for success not improbable.

The opportunity was there on April 4. The NRC had not made up its collective mind on the issue. Once LB701 got out of the pro-agriculture NRC and hit the legislature floor which is dominated by Omaha and Lincoln, it was all over. With "Friends'" lawsuit, all I can foresee happening is further uncertainty, anger, angst and a growing displeasure among the legislature towards Republican River Basin irrigators.

We agree with "Friends" that the Republican River Compact and the lawsuit settlement agreement, and the compliance with the same, are state responsibilities. Unfortunately, our governor and most of the state senators think otherwise. The issue is more political than legal.

I do hope that the Lincoln attorney representing "Friends" comes to grips with reality before tens of thousands of dollars are frittered away on a lawsuit that cannot be won, and will, if it drags on for two to three years, do even more harm to the irrigators and landowners in the basin.

Don Adams

Executive Director

Nebraskans First

-- Nebraskans First is a non-profit, non-partisan, grassroots organization of Nebraska farmers dedicated to protecting Nebraska's groundwater for agriculture.

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