The state of Nebraska is suing Colorado over the Perkins County Canal, in a lawsuit filed with the U.S. Supreme Court.

Attorney General Phil Weiser announced the lawsuit filing Wednesday, with a statement criticizing Nebraska for what will be years of litigation and billions of dollars in costs. 

“It’s unfortunate that Nebraska leaders decided to put politics above farming and ranching communities and the regional agricultural economy,” Weiser said in a news release. “The failure to look for reasonable solutions and to turn to litigation is both unfortunate and predictable given the misguided effort driving the proposed canal.” 

“Nebraska has now set in motion what is likely to be decades of litigation. And if, after decades of litigation, the court allows Nebraska to move forward with its wasteful project, Nebraska’s actions will force Colorado water users to build additional new projects to lessen the impact of the proposed Perkins County Canal,” he added.

“When the dust finally settles, likely over a billion dollars will have been spent — tens of millions of that on litigation alone — and no one in Nebraska or Colorado will be better off. To avoid this outcome, Nebraska will ideally realize that through cooperation and collaboration, rather than litigation, our states could achieve a durable and thoughtful solution that addresses any concerns they might have. By so doing, we can increase resiliency in the region and ensure that the agricultural communities of Northeast Colorado and Northwest Nebraska can both thrive in the future.”

Nebraska Gov. Jim Pillen and Attorney General Mike Hilgers held a news conference Wednesday to announce the lawsuit. 

In a joint statement, Pillen said: “Today’s action comes only after we made every reasonable effort to resolve our differences with Colorado. Ultimately, Nebraska must push forward to secure our water for future generations. Although we hoped to avoid a lawsuit, we are confident we remain on schedule to complete the Perkins County Canal by 2032.” 

“Today’s action will ensure that Nebraska receives all the water to which it is entitled to under the Compact and that Nebraska’s agriculture and economy are protected,” Hilgers said. “Our suit has two basic elements: First, it challenges Colorado’s ongoing, unauthorized overuse of Nebraska’s water during the summer and the rationale Colorado uses to justify it. Second, we challenge Colorado’s efforts to obstruct the construction of the Canal and prevent Nebraska from accessing the additional water Nebraska is entitled to in the South Platte River Compact. Water is the essential lifeblood of Nebraska’s economy, and it’s my goal to protect one of the state’s most important assets.”

A Nebraska briefing filed with the Court said: “Nebraska has tried to resolve its concerns without judicial intervention, but to no avail … This Court is Nebraska’s only available forum in which to obtain timely and meaningful relief.” 

Gov. Jared Polis said in a statement Wednesday: “I am disappointed that the States of Colorado and Nebraska will need to waste time and money in court over this meritless challenge. Colorado has always been in compliance with the South Platte Compact and other applicable agreements. We have also continued to meet in good faith with Nebraska, despite its attempts to intimidate Colorado landowners and damage our agricultural communities. This escalation by Nebraska is needless, and Colorado will take all steps necessary to aggressively defend Colorado water users, landowners, and our rural economy.”

State Sen. Byron Pelton, R-Sterling, whose district includes the counties impacted by the canal, told Colorado Politics “it seems to me that the Cornhusker State is grasping at straws to force landowners to give up their land. It will be interesting to see what evidence they have. All Nebraska has done is come to Sedgwick County and threatened eminent domain every chance they had, when they were trying to negotiate with landowners.”

The canal would start just east of Ovid, in Sedgwick County, and continue into Perkins County, just across the state line in Nebraska.

Nebraska has already invested $500 million in the project, with an expected total cost exceeding $628 million.

The history of the proposed canal dates back more than 100 years, to the compact between Colorado and Nebraska regarding water from the South Platte River.

The 1923 compact allows Nebraska to build the canal, using eminent domain, and to seek it in federal court if necessary.

Six landowners received letters from Nebraska earlier this year, with a deadline of April 17 to make a decision to sell their lands or face the eminent domain land grab. 

However, a letter on March 7 from the attorney for the landowners turned down the request. 

The five-page letter stated the diversion would dry up 30,000-to-60,000 acres of land that rely on groundwater for all or part of their irrigation supply, resulting in property damage of up to $270,000 in Sedgwick, Logan, and Washington counties.

“These figures do not account for the potential impact on over 40 municipal wells supplying water to residents, businesses, parks, schools, hospitals and fire stations in Northern Colorado,” according to attorney Donald Ostrander from the Englewood-based law firm of Hamre, Rodriguez, Ostrander & Prescott, PC.

It would be almost impossible to calculate the cumulative effort the loss of this water would have, Ostrander wrote.

“Each municipality and landowner would have its unique damage situation and be entitled to file suit against Nebraska… Suppose Nebraska proceeds with the construction of the Perkins Canal. In that case, we intend to file such claims on behalf of affected landowners, based on the area impacted by the canal’s construction,” Ostrander wrote.

Nebraska did not respond to the letter, according to Ostrander.

Ostrander also said he has not seen the lawsuit filing and normally, all opposing counsel is notified about these filings.