BOGUE, Kan. - Fellow Kansas Free Press contributor and an Ogallala irrigator and I have had an interesting exchange over whether reducing appropriated water "rights" would constitute a "taking" as per the U.S. Constitution 4th Amendment.
As I believe I have reported, then KS Attorney General Carla Stovall was asked about that as one part of a question carried on my behalf by then KS Sen. Stan Clark. In essence, Stovall declined to answer plainly, but said it would depend on the circumstances. In the Cheyenne Bottoms case, both junior and senior water rights were reduced by the DWR without awarding a taking to senior right holders. To summarize, it was a voluntary settlement that avoided the courts. That could--but almost assuredly won't--happen on the scale necessary to end the mining of the Ogallala. What then, can be done?
In March of 2003, John C. Peck, highly respected law professor at KU School of Law, presented a paper in Kyoto, Japan, to the 3rd World Water Forum entitled: Property Rights in Groundwater--Some Lessons from the Kansas Experience.