Kansas v. Nebraska
| Decision Date | 24 February 2015 |
| Docket Number | No. 126, Orig.,126, Orig. |
| Parties | State of KANSAS, Plaintiff v. States of NEBRASKA and Colorado. |
| Court | U.S. Supreme Court |
John B. Draper, Special Assistant Attorney General, Draper & Draper LLC, Jeffrey J. Wechsler, Montgomery & Andrews, P.A., Santa Fe, NM, Derek Schmidt, Attorney General of Kansas, Stephen R. McAllister, Solicitor General of Kansas, Counsel of Record, Jeffrey A. Chanay, Deputy Attorney General, Christopher M. Grunewald, Assistant Attorney General, Burke W. Griggs, Special Assistant Attorney General, Bryan C. Clark, Assistant Solicitor General, Topeka, KS, for Petitioner.
John W. Suthers, Attorney General of Colorado, Daniel D. Domenico, Solicitor General, Scott Steinbrecher, Assistant Attorney General, Colorado Department of Law, Counsel of Record, Denver, CO, for Respondent.
Jon Bruning, Attorney General of Nebraska, David D. Cookson, Chief Deputy Attorney General, Justin D. Lavene, Assistant Attorney General, Counsel of Record, Office of the Attorney General, Donald G. Blankenau, Thomas R. Wilmoth, Special Assistant Attorneys General, Blankenau Wilmoth Jarecke LLP, Lincoln, NE, for Respondent.
Steve N. Six, Attorney General of Kansas, John B. Draper, Counsel of Record, Montgomery & Andrews, P.A., Santa Fe, NM, for Petitioner.
Vincent L. McKusick, Special Master, Portland, ME, for Final Report of the Special Master with Certificate of Adoption of RRCA Groundwater Model.
John W. Suthers, Attorney General of Colorado, Daniel D. Domenico, Solicitor General, Peter J. Ampe, First Assistant Attorney General, Autumn Bernhardt, Assistant Attorney General, Federal and Interstate Water Unit, Natural Resources and Environment Section, State of Colorado, Office of the Attorney General Denver, CO, for Respondents.
Carla J. Stovall, Attorney General of Kansas, John W. Campbell, Chief Deputy Attorney General, John M. Cassidy, Assistant Attorney General, Leland E. Rolfs, Special Assistant Attorney General, John B. Draper, Counsel of Record, Special Assistant Attorney General, Andrew S. Montgomery, Montgomery & Andrews, P.A., Santa Fe, NM, for Petitioner.
Don Stenberg, Attorney General of Nebraska, David D. Cookson, Assistant Attorney General, Counsel of Record, Lincoln, NE, Bartholomew L. McLeay, Special Assistant Attorney General, Omaha, NE, for Respondents.
Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Felicity Hannay, Deputy Attorney General, Wendy Weiss, First Assistant Attorney General, Alexandra L. Davis, Assistant Attorney General, Natural Resources and Environment Section, Attorneys for State of Colorado, Denver, CO, for Respondents.
Don Stenberg, Attorney General of Nebraska, Marie Pawol, Assistant Attorney General, Counsel of Record, Lincoln, NE, Bartholomew L. McLeay, Special Assistant Attorney General, Omaha, NE, for Respondents.
Don Stenberg, Attorney General of Nebraska, for Respondents.
For the second time in little more than a decade, Kansas and Nebraska ask this Court to settle a dispute over the States' rights to the waters of the Republican River Basin, as set out in an interstate compact. The first round of litigation ended with a settlement agreement designed to elaborate on, and promote future compliance with, the Compact's terms. The States now bring new claims against each other arising from the implementation of that settlement. Kansas seeks exceptional relief—both partial disgorgement of gains and an injunction—for Nebraska's conceded overconsumption of water. For its part, Nebraska requests amendment of a technical appendix to the settlement, so that allocations of water will faithfully reflect the parties' intent as expressed in both the body of that agreement and the Compact itself. We referred the case to a Special Master and now accept his recommendations as to appropriate equitable remedies: for Kansas, partial disgorgement but no injunction; and for Nebraska, reform of the appendix.
The Republican River originates in Colorado; crosses the northwestern corner of Kansas into Nebraska; flows through much of southwestern Nebraska; and finally cuts back into northern Kansas. Along with its many tributaries, the River drains a 24,900–square–mile watershed, called the Republican River Basin. The Basin contains substantial farmland, producing (among other things) wheat and corn.
During the Dust Bowl of the 1930's, the Republican River Basin experienced an extended drought, interrupted once by a deadly flood. In response, the Federal Government proposed constructing reservoirs in the Basin to control flooding, as well as undertaking an array of irrigation projects to disperse the stored water. But the Government insisted that the three States of the Basin first agree to an allocation of its water resources. As a result of that prodding, the States negotiated and ratified the Republican River Compact; and in 1943, as required under the Constitution, Art. I, § 10, cl. 3, Congress approved that agreement. By act of Congress, the Compact thus became federal law. See Act of May 26, 1943, ch. 104, 57 Stat. 86.
The Compact apportions among the three States the "virgin water supply originating in"—and, as we will later discuss, originating only in—the Republican River Basin. Compact Art. III ; see infra, at 1059 – 1064. "Virgin water supply," as used in the Compact, means "the water supply within the Basin," in both the River and its tributaries, "undepleted by the activities of man." Compact Art. II. The Compact gives each State a set share of that supply—roughly, 49% to Nebraska, 40% to Kansas, and 11% to Colorado—for any "beneficial consumptive use." Id., Art. IV; see id., Art. II (). In addition, the Compact charges the chief water official of each State with responsibility to jointly administer the agreement. See id., Art. IX. Pursuant to that provision, the States created the Republican River Compact Administration (RRCA). The RRCA's chief task is to calculate the Basin's annual virgin water supply by measuring stream flow throughout the area, and to determine (retrospectively) whether each State's use of that water has stayed within its allocation.
All was smooth sailing for decades, until Kansas complained to this Court about Nebraska's increased pumping of groundwater, resulting from that State's construction of "thousands of wells hydraulically connected to the Republican River and its tributaries." Bill of Complaint, O.T. 1997, No. 126, Orig., p. 5 (May 26, 1998). Kansas contended that such activity was subject to the Compact: To the extent groundwater pumping depleted stream flow in the Basin, it counted against the pumping State's annual allotment of water.1 Nebraska maintained, to the contrary, that groundwater pumping fell outside the Compact's scope, even if that activity diminished stream flow in the area. A Special Master we appointed favored Kansas's interpretation of the Compact; we summarily agreed, and recommitted the case to him for further proceedings. See Kansas v. Nebraska, 530 U.S. 1272, 120 S.Ct. 2764, 147 L.Ed.2d 1003 (2000). The States then entered into negotiations, aimed primarily at determining how best to measure, and reflect in Compact accounting, the depletion of the Basin's stream flow due to groundwater pumping. During those discussions, the States also addressed a range of other matters affecting Compact administration. The talks bore fruit in 2002, when the States signed the Final Settlement Stipulation (Settlement).
The Settlement established detailed mechanisms to promote compliance with the Compact's terms. The States agreed that the Settlement was not "intended to, nor could [it], change [their] respective rights and obligations under the Compact." Settlement § I(D). Rather, the agreement aimed to accurately measure the supply and use of the Basin's water, and to assist the States in staying within their prescribed limits. To smooth out year-to-year fluctuations and otherwise facilitate compliance, the Settlement based all Compact accounting on 5–year running averages, reduced to 2–year averages in "water-short" periods. Id., §§ IV(D), V(B). That change gave each State a chance to compensate for one (or more) year's overuse with another (or more) year's underuse before exceeding its allocation. The Settlement further provided, in line with this Court's decision, that groundwater pumping would count as part of a State's consumption to the extent it depleted the Basin's stream flow. An appendix to the agreement called the "Accounting Procedures" described how a later-developed "Groundwater Model" (essentially, a mass of computer code) would perform those computations. Id., App. C; id., App. J1. And finally, the Settlement made clear, in accordance with the Compact, that a State's use of "imported water"—that is, water farmers bring into the area (usually for irrigation) that eventually seeps into the Republican River—would not count toward the State's allocation, because it did not originate in the Basin. Id., §§ II, IV(F). Once again, the Settlement identified the Accounting Procedures and Groundwater Model as the tools to calculate (so as to exclude) that consumption.
But there were more rapids ahead: By 2007, Kansas and Nebraska each had complaints about how the Settlement was working. Kansas protested that in the 2005–2006 accounting period—the first for which the Settlement held States responsible—Nebraska had substantially exceeded its allocation of water. Nebraska, for its part, maintained that the Accounting Procedures and Groundwater Model were charging the State for use of imported water—specifically, for water originating in the Platte River Basin. The States brought those disputes to the RRCA and then to non-binding arbitration, in...
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