Opposition Brief — Nebraska v. Wyoming

No. 108, Original

In The

Supreme Court of the United States

October Term, 1991

STATE OF NEBRASKA,

Plaintiff,

Vv

STATE OF WYOMING,

Defendant.

WYOMING BRIEF IN OPPOSITION TO NEBRASKA’S

MOTION FOR LEAVE TO FILE AMENDED PETITION FOR

AN APPORTIONMENT OF NON-IRRIGATION SEASON

FLOWS AND FOR THE ASSERTION OF NEW CLAIMS

November 12, 1991

JOSEPH B. MEYER

Attorney General of Wyoming

DENNIS C. COOK

Senior Assistant Attorney General

Counsel of Record

123 Capitol Building

Cheyenne, Wyoming 82002

(307) 777-7841

RAPHAEL J. MOSES

CHARLES N. WOODRUFF

JAMES R. MONTGOMERY

Special Assistant Attorneys

General

MOSES, WITTEMYER,

HARRISON

AND WOODRUFF, P.C.

1002 Walnut Street, Suite 300

Boulder, Colorado 80302

(303) 443-8782

L4/ j

TABLE OF CONTENTS

Page

p, Bo, era iii

I. QUESTIONS PRESENTED .............. 1

II. STATEMENT OF THE CASE ............ 2

Ill. STATEMENT OF FACTS ............... 4

IV. SUMMARY OF ARGUMENT ............ 12

REISS ay tee a Ea 14

A. The Supreme Court Exercises Its

Original Jurisdiction With Extreme

Caution and Only Where Absolutely

SE ae tae a4 8 eb Wee th bbe oes «8 14

B. Nebraska Has Not Alleged Any Present

Injury From Wyoming Actions That

Would Warrant Reopening the

Existing Apportionment .............. 16

C. Nebraska’s Tendered Claim for an

Apportionment of Non-Irrigation Season

Flows is Too Vague and Indefinite to

Admit of Adjudication in the

Original Jurisdiction ................. 19

1. The Wyoming actions alleged in

Nebraska’s Amended Petition either

are already being litigated before the

Special Master or are too speculative

and remote to warrant exercise of the

Court’s original jurisdiction ........ 19

2. The injury alleged by Nebraska is

dependent on the outcome of disputes

pending in other intrastate and

SeGevel Garwis ..: ..6+ scsecduadenel 24

D. The Relief Nebraska Now Seeks Against

Wyoming is Identical to the Relief

Sought in Nebraska’s First Attempt

to Amend Her Petition and Should Be

Denied for the Same Reasons the

First Amendment Was Denied ........ 27

E. The New Allegations of Decree

Violations in Count II of Nebraska’s

Amended Petition are Both Groundless

one Untionely. .. oo csccvtccuseunee 28

F. Accepting the Amended Petition Would

Cause Undue Prejudice to Wyoming,

Colorado and the Other Litigants ...... 31

Vi. CONCLUGION ...ciiéctcucncues ee 33

ill

TABLE OF AUTHORITIES

CASES

Alabama v. Arizona,

eee eee

Arizona v. California,

263 U.S. 423 (193h) ................

Arizona v. California,

460 U.S. G06 (1963) ................

Arizona v. New Mexico,

435 US. 704 (1976) ............-%..

California v. Nevada,

447 U.S. 125 (1980) ............-..

Carey v. Beans,

500 F. Supp. 580 (E.D. Pa. 1980),

affd 659 F.2d 1065 (3rd Cir. 1981) ...

Colorado v. Kansas,

Sao US. Bea (1965) ....... 2... ee-

Connecticut v. Massachusetts,

263 U.S. G60 (1931) ................

Foman v. Davis,

Ee I REED cee eee eee

Glesenkamp v. Nationwide Mut. Ins. Co.,

71 F.R.D. 1 (N.D. Cal. 1974),

affd 540 F.2d 458 (9th Cir. 1976) ....

Page

rawace 32

ievers 32

eaae 32

iv

Idaho v. Oregon,

SES US. WORT (URCS) so. ec cece ns

Massachusetts v. Missouri,

ee ee Ce 6 ek sn etn shesedecs

Missouri v. Illinois,

moe TB. 408 (ROBO) 5 onc ce ceicneds

Nebraska v. Rural Elec. Admin.,

12 E.R.C. 1156 (D. Neb. 1978),

appeal dismissed upon stipulation,

594 F.2d 870 (8th Cir. 1979) ........

Nebraska v. Wyoming,

325 U.S. 589 (1945) ...............

Nebraska v. Wyoming,

oS 8 rere

Nebraska v. Wyoming,

es en re

Nebraska v. Wyoming,

See Wa ne CUE ooo k cc kecvencces

Nebraska v. Wyoming,

493 US. G05 (1968) ........5.....%:

New York v. Illinois,

See Wik Se CF vs veces eiccess

New York v. New Jersey,

ee Se ee COO 6 ies oe ck eakds

Ohio v. Kentucky,

410-U.B. GE1 (207S) 2. cece ce eee sees. 31

Ohio v. Wyandotte Chemicals Corp.,

BoP 8, | errr re 14, 28

Platte River Whooping Crane Critical Habitat

Maintenance Trust v. FERC,

876 F.2d 109 (D.C. Cir. 1989) .............. 11

Platte River Whooping Crane Critical Habitat

Maintenance Trust v. FERC,

No. 90-1397, (D.C. Cir. filed Aug. 3, 1990) ... 11

Texas v. New Mexico,

GU TE, GO I occ ces evbcdcckasencs 14

United States v. Nevada,

BO Be: te SE gn oe wk ce dcceedsevadaee 26

United States v. West Virginia,

Se Ba CP I ck vc cckwceecuwusucer 16, 22

Verhein v. South Bend Lathe, Inc.,

— BA 8) ify, Bt Ae) /, | ren 32

Wyoming v. Colorado,

259 U.S. 419 (1922), modified, 260 U.S. 1

(1922), vacated and new decree issued,

Se We ee GED cab ice ede sroapeedes ean 21

Wyoming v. Colorado,

aoe ee 0 errr rrr rr rere 22

Zenith Radio Corp. v. Hazeltine Research, Inc.,

gb MR, | Rr arene ore 32

vi

STATUTES AND COURT RULES

Act of Feb. 19, 1935, ch. 105, 1935 Wyo. Sess.

Laws 154 (amending Wyo. Rev. Stat.

§ 122-117 (1931) and now codified

at Wyo. Stat. § 41-4-317 (1977)) ............ 30°

Act of Feb. 24, 1945, ch. 153, 1945 Wyo. Sess.

Laws 189 (effective Feb. 24, 1945)

(now codified at Wyo. Stat. §§ 41-4-317

ee I TTI vb oo ov 6 ko doc on. vioee ents 30

Endangered Species Act,

16 U.S.C. §§ 1531-1544

(1988 & Supp. I 1989) ................. 12, 21

I een wu eweus 32

National Environmental Policy Act,

42 U.S.C. §$§ 4321-4370b

(EGGS @& Gupp. I 1088) .. wo oi. ccc cues 21

Neb. Rev. Stat. §§ 46-2,107 to 46-2,119

I eo is ee 10

Be Wan © Ge CID oso ok ico cc cove ccd, 11

ADMINISTRATIVE RULES AND PROCEEDINGS

a ef MB Es. | ae eee 11

In re Application Nos. A-17004 through A-17009

= the Central Platte Natural Resources

istrict (Nebraska Department of Water

Resources filed July 25, 1990) .......... 10, 25

vil

In re Application Nos. A-15145, A-15146,

A-15147 and A-15148 Assigned to the

Catherland Reclamation District (Nebraska

Department of Water Resources July 29,

1986), set aside on other grounds, Catherland

Reclamation District v. Lower Platte North

Natural Resources District,

230 Neb. 580, 433 N.W.2d 161 (1988) ....... 10

Central Nebraska Public Power and

Irrigation District,

F. sh PS 2): s eros 11

Central Nebraska Public Power and

Irrigation District,

Se, oh 2 oR. Fe) See 11

MISCELLANEOUS

J. David Aiken, New Directions in

Nebraska Water Policy,

i) rr Oe CED i vb beh 0 0 04% 6s 6 0's 10

A. Bleed, et al., University of Nebraska

Conservation and Survey Division,

Economic, Environmental and Financing

Optimization Analysis of Platte River

Development Alternatives (1986) ............ 9

No. 108, Original

IN THE

Supreme Court of the Hnited States

October Term, 1991

STATE OF NEBRASKA,

Plaintiff,

Vv.

STATE OF WYOMING,

Defendant.

WYOMING BRIEF IN OPPOSITION TO

NEBRASKA’S MOTION FOR LEAVE TO FILE

AMENDED PETITION FOR AN APPORTIONMENT

OF NON-IRRIGATION SEASON FLOWS AND

FOR THE ASSERTION OF NEW CLAIMS

I. QUESTIONS PRESENTED.

A. Whether Nebraska’s second motion to amend

her petition presents a case or controversy

_ that is appropriate for the Court’s original

jurisdiction; and

B. Whether amendment of Nebraska’s petition

to assert new ciaims is appropriate when

pending cross-motions for summary judgment

on the claims in the original petition may dis-

pose of the claims in the amended petition.

2

Il. STATEMENT OF THE CASE.

Nebraska’s original petition to enforce her apportion-

ment of the North Platte River under the existing Decree’

was filed more than five years ago on October 6, 1986.

The matter was referred to Special Master Owen Olpin

on June 22, 1987. Nebraska v. Wyoming, 483 U.S. 1002

(1987). On September 11, 1987, Wyoming filed with

the Special Master a motion for summary judgment

addressing Nebraska’s claims of Decree violation. While

Wyoming’s summary judgment motion was pending

before the Special Master, Nebraska filed, and the Court

denied, Nebraska’s first motion to amend. Nebraska v.

Wyoming, 485 U.S. 931 (1988). Nebraska’s first amended

petition would have sought modification of the Decree

to provide a new apportionment for instream uses in

Nebraska.

The Special Master later denied Wyoming’s motion

for summary judgment in order to allow for development

of the facts. See First Interim Report of Special Master,

accepted for filing by the Court June 26, 1989, 492 U.S.

903 (1989). Although Wyoming believes the Special Mas-

ter erred in not recommending the granting of Wyoming’s

summary judgment motion, Wyoming did not seek leave

to file exceptions to the First Interim Report because the

Court had not invited such exceptions and because the

Special Master had expressly left open the possibility of

summary disposition of the pending claims following

additional discovery and development of facts.

1. Nebraska v. Wyoming, 325 U.S. 589, 665 (1945), modified, 345 US.

981 (1953). The earlier litigation in this case culminating in the 1945

opinion and decree at 325 U.S. 589 will sometimes be referred to

in this brief as “Nebraska v. Wyoming (D.”

3

Following extensive discovery, the States of Wyo-

ming, Colorado and Nebraska, as well as the United

States, filed cross-motions for summary judgment which

are now pending before the Special Master. Like Wyo-

ming’s first motion for summary judgment, the pending

cross-motions seek interpretation of the existing Decree

as a matter of law. Those cross-motions were argued

before the Special Master in June, 1991. The parties are

now awaiting a report and recommendation from the Spe-

cial Master to the Court for disposition of those motions.

The issues of Decree interpretation raised by the pend-

ing summary judgment motions are:

(1) Whether the existing Decree limits Wyoming’s

use of the Laramie River;

(2) Whether Nebraska’s apportionment under the

Decree inciudes the right to curtail Wyoming

uses in favor of Nebraska uses below Tri-State

Dam;

(3) Whether municipal use of the proposed Deer

Creek Reservoir is part of Wyoming’s apportion-

ment pursuant to Paragraph X of the Decree;

(4) Whether Nebraska has raised sufficient facts to

meet her burden of proving that Deer Creek

Reservoir would violate her apportionment under

the Decree; and

(5) Whether the Decree apportioned to Nebraska a

right to store natural flow in the Inland Lakes.

While responses to the summary judgment motions

were being briefed before the Special Master, Nebraska

filed a “Motion to Recommend an Apportionment of Non-

4

Irrigation Season Flows” with the Special Master. In that

pleading, Nebraska requested “that the Special Master

recommend to the Court, as part of his report and recom-

mendations in regard to the pending cross-motions

for summary judgment, that the unapportioned, non-

irrigation season natural flows of the North Platte River

be apportioned among the States of Nebraska, Wyoming,

and Colorado.”’ Nebraska’s Motion to Recommend an

Apportionment of Non-Irrigation Season Flows at 6

(March 13, 1991). Nebraska accompanied that motion

with neither a motion to amend her petition nor a new

petition praying for such an apportionment of non-

irrigation season flows. After briefing by the parties and

amici, the Special Master denied that motion. Order of

Special Master Owen Olpin, June 17, 1991.

Ill. STATEMENT OF FACTS.

Following unsuccessful attempts in the 1920's and early

1930’s by Wyoming, Nebraska and Colorado to negotiate a com-

pact apportioning the North Platte River, Nebraska brought suit

in the Supreme Court in 1934 praying that *‘this court find and

determine the equitable share of the waters of the North Platte

River to which this complainant is entitled.’” Nebraska Bill of

Complaint at 32-33, Article Fifteenth (October 1, 1934),

Nebraska v. Wyoming, 325 U.S. 589 (1945). After 11 years

of litigation, the Court was divided over the question of

whether Nebraska had made out a case entitling her to

any apportionment, much less the complete apportion-

ment prayed for in the bill of complaint. Jd., 325 U.S. at

657 (J. Roberts, dissenting). The five-justice majority of

the Court accepted the recommendation of Special Mas-

ter Michael J. Doherty for an apportionment by means

of limited injunctions. Those injunctions were tailored

5

to resolve the conflict arising in times of shortage among

the particular irrigation uses presented by the states “by

means of the imposition of a minimum of restriction.”’

Report of Michael J. Doherty, Special Master at 122, id.

(“Doherty Report”’).

Recognizing that Nebraska had proved no threat of

injury except in years of very short water supply, Spe-

cial Master Doherty recommended, and the Court

adopted in Paragraph XIII of the Decree, a provision for

retained jurisdiction to modify the Decree in response to

changed conditions. The changed condition particularly

contemplated by both Doherty and the Court was the

“possibility of the passing of the present drouth cycle. . .

which might justify the release of some or all of the

restrictions...’ in the Decree. Doherty Report at 10-11.

See also Nebraska v. Wyoming, 325 U.S. 589, 620 (1945).

After reviewing extensive and conflicting evidence in

which Nebraska claimed injury to uses all the way down-

stream to Grand Island on the Platte River, Special Mas-

ter Doherty wrote:

The conclusion is that Nebraska’s claim for equita-

ble apportionment of water originating above the

Wyoming state line is in all events limited to the

North Platte Project and State Line Canals and

the lands supplied by them.’

Doherty Report at 96. The Court agreed with the Spe-

cial Master:

2. “State Line Canals” is used to refer to the Farmers (Tri-State), Rams-

horn, Mitchell, Gering and French Canals, all diverting near the

state line at or above Tri-State Dam, except the now inactive Ram-

shorn Canal which diverted just below Tri-State Dam.

—6

We think, as we will develop later, that the rec-

ord sustains the conclusion that equitable appor-

tionment does not permit Nebraska to demand

direct flow water from abuve Whalen for use below

Tri-State.

Nebraska v. Wyoming, 325 U.S. 589, 628 (1945). See also

id. at 654-55.

Based on extensive evidence, both Special Master

Doherty and the Court made specific findings of the rea-

sonable water requirements of those Nebraska uses

diverting at and above Tri-State. Doherty Report at 53-87,

196-253; Nebraska v. Wyoming, 325 U.S. 589, 648-49

(1945). The injunctions recommended by Special Master

Doherty and adopted by the Court in the Decree were

intended to protect those specific uses.

Although the injunctions in the Decree that operate

outside the irrigation season are not as extensive as those

that operate during the irrigation season, river flows dur-

ing the non-irrigation season are part of the apportion-

ment under the existing Decree. The North Platte River

non-irrigation season flows addressed in Nebraska's

motion to amend consist of four components: (1) return

flows below Tri-State Dam, (2) return flows and minor

gains between Guernsey Dam and Tri-State Dam, (3)

Laramie River contributions and (4) inflows from above

Guernsey Dam. Each component either is already at issue

in the present case or is not threatened even under the

allegations in Nebraska’s Amended Petition.

Return flows below Tri-State Dam are totally a func-

tion of Decree-apportioned diversions during the irriga-

tion season. Therefore, resolution of the pending issues

7

of the extent of Nebraska’s apportionment during the irri-

gation season will resolve any issue regarding return

flows below Tri-State.* Return flows between Guernsey

Dam and Tri-State Dam likewise are controlled by the

irrigation season diversions. Moreover, any return flows

accruing to the river in the non-irrigation season below

Guernsey Dam will flow to Nebraska because Wyoming

has neither the present ability nor any proposal to cap-

ture such flows for new uses. The Laramie River also

flows into the North Platte River downstream of Guern-

sey Dam. As Wyoming explains infra at 20-23, the respec-

tive rights of the states to the Laramie River are

presently at issue before the Special Master. The final

component of winter flows — water from above Guern-

sey Dam — is expressly controlled by Paragraph III of

the Decree which orders the priority of storage in the fed-

eral reservoirs on the North Platte.‘

Development of the North Platte River in Wyoming

has been limited since entry of the Decree. The only sig-

nificant development of the North Platte River in Wyo-

ming since entry of the Decree is already currently before

the Court on Nebraska’s pending petition challenging

Grayrocks Reservoir and the proposed Deer Creek Reser-

3. The Director of the Nebraska Department of Water Resources admit

ted the self-evident proposition that protection of Nebraska's decreed

apportionment for uses diverting at and above Tri-State Dam wil!

automatically protect downstream uses of return flows from those

Decree-apportioned uses. Deposition of J. Michael Jess, Vol. I at

109-10, 113-14 (November 28, 1989).

4. The only flows past Guernsey Dam that are not controlled by the

existing Decree are the periodic surplus flows in excess of the water

rights of the federal reservoirs. The right of proposed projects such

as Deer Creek Reservoir to capture such surplus flows is presently

at issue in the claims pending before the Special Master.

8

voir and Corn Creek Project.’ Moreover, Wyoming has

not yet used all the water apportioned to her under the

Decree and the unused flows have reached Nebraska. In

Nebraska v. Wyoming (1), it was determined that 60,000

acres would be irrigated under the Kendrick Project

(Seminoe and Alcova Reservoirs), resulting in an irriga-

tion season depletion (diversion minus returns) of 122,000

acre-feet and an annual depletion of 72,000 acre-feet.

Doherty Report at 137-38; Nebraska v. Wyoming, 325 U.S.

589, 602 (1945). Wyoming has irrigated less than 24,250

acres under that project resulting in depletions of less

than half of what was contemplated by the Court in 1945.

In addition, Wyoming users have contracted for less than

5,000 acre-feet of the 15,000 acre-feet of Glendo Reser-

voir water apportioned to Wyoming under the 1953 stipu-

lation for modification of the Decree. Nebraska v. Wyo-

ming, 345 U.S. 981 (1953).

Since 1945, Nebraska's canals diverting in the Wha-

len to Tri-State Dam section of the river have diverted

substantially in excess of the water requirements found

by Special Master Doherty.* Nebraska’s own records show

that diversions in the Tri-State Dam to Bridgeport sec-

tion of the river since 1945 also significantly exceeded

the requirements found by Special Master Doherty for

5. Glendo Reservoir was built and has been operated pursuant to the

1953 stipulated amendment of the Decree, Nebraska v. Wyoming,

345 U.S. 981 (1953).

6. This fact is established without dispute in affidavits filed by both

Nebraska and Wyoming with their motions for summary judgment.

Affidavit of Bern S. Hinckley, Wyoming Second Motion for Summary

Judgment (February 22, 1991); Affidavit of Ann S. Bleed, Nebraska

Motion for Partial Summary Judgment (March 1, 1991).

- 9

those canals.’ Furthermore, the water supply available

for Lake McConaughy has exceeded the supply projected

at the time of Nebraska v. Wyoming (1). Special Master

Doherty concluded that uses below Lake McConaughy

(Kingsley Dam) had no “equitable claim upon water from

the upper states.” Doherty Report at 99. In reaching that

conclusion, he cited and relied on U.S. Exhibit Nos. 186

to 191, including U.S. Exhibit No. 189, a graph depict-

ing the average annual flow from 1930 to 1940 at Mar-

tin, two miles above Kingsley Dam, of 1,049,000 acre-

feet. Doherty Report at 96-99. Nebraska admits that the

flow of the North Platte River available at Kingsley Dam

since 1946 has averaged 1,105,000 acre-feet per year, 5%

more than Special Master Doherty had determined was

sufficient to meet the uses east of Kingsley. Amended

Petition at 5, para. 12.*

Despite Nebraska’s statement that “all water which

currently flows into Nebraska is important to support

minimum stream flows for the Platte River’ (Nebraska

Brief at 19), Nebraska sees no need to limit future deple-

tions te the North Platte or Platte Rivers in Nebraska

in order to preserve such instream flows. One study for

Nebraska cuncluded that an additional 400,000 acre-feet

of water could be developed under proposed projects such

as the Prairie Bend and Landmark Projects from the cen-

tral Platte and above, even after providing some level]

of minimum instream flows for wildlife habitat. A. Bleed,

7. Second Affidavit of Bern S. Hinckley, Figure 1, Wyoming Brief

{before Special Master Olpin| in Opposition to Nebraska's Motion

to Recommend an Apportionment of Non-Irrigation Season Flows

at 38 (April 5, 1991).

8. Nebraska®& Amended Petition for an Apportionment of Non-Irriga

tion Season Flows and for the Assertion of New Claims and

Nebraska's Brief in Support of that motion are cited herein as

“Amended Petition” and “Nebraska Brief” respectively.

10

et al., University of Nebraska Conservation and Survey

Division, Economic, Environmental and Financing Op-

timization Analysis of Platte River Development Alterna-

tives (1986). Further, in 1986, the Nebraska Department

of Water Resources issued a permit for diversion and

transportation entirely out of the Platte River basin of

about 125,000 acre-feet above the reach of the Platte Riv-

er that Nebraska says is important to wildlife habitat.

See In re Application Nos. A-15145, A-15146, A-15147 and

A-15148 Assigned to the Catherland Reclamation District

(Nebraska Department of Water Resources July 29,

1986), set aside on other grounds, Catherland Reclama-

tion District v. Lower Platte North Natural Resources Dis-

trict, 230 Neb. 580, 433 N.W.2d 161 (1988).’

In 1984, Nebraska first enacted a statute providing

for the appropriation of minimum instream flows in Ne-

braska for wildlife, environmental and recreational pur-

poses. Neb. Rev. Stat. §§ 46-2,107 to 46-2,119 (1988

Reissue). However, it was not until 1990 that the State

of Nebraska proceeded at the request of one of her polit-

ical subdivisions to determine the need for an instream

flow for the Platte River. That application is pending be-

fore the Nebraska Department of Water Resources. /n

re Application Nos. A-17004 through A-17009 of the Cen-

tral Platte Natural Resources District (Nebraska Depart-

ment of Water Resources filed July 25, 1990). See

Nebraska Brief at 33-34.

9. Professor J. David Aiken of the University of Nebraska describes how

serious depletion of groundwater from uncontrolled pumping for ir-

rigation of 6.2 million acres in Nebraska has led to a number of

proposals like Catherland to “rescue” irrigators from declining

groundwater supplies. J. David Aiken, New Directions in Nebraska

Water Policy, 66 Nes. L. Rev. 8, 43-48 (1987).

11

At the same time, the Federal Energy Regulatory

Commission (““FERC”’) is considering renewal of the hy-

droelectric licenses for Kingsley Dam and related power

facilities.’° The central issue in that proceeding is wheth-

er, and the extent to which, the renewed licenses ought

to be conditioned on certain releases for the maintenance

of instream flows for wildlife habitat. Of particular con-

cern is whether certain minimum flows are required to

avoid harming the designated critical habitat of the en-

dangered whooping crane far downstream from Kings-

ley Dam on the Platte River. Various environmental

groups have urged FERC to impose such conditions. The

applicants for the renewed licenses, the Central Nebraska

Public Power and Irrigation District (“CNPPTD”) and the

Nebraska Public Power District (““NPPD’’) have

challenged the biological necessity for such flows to main-

tain wildlife habitat. FERC is in the process ef complet-

10. The Kingsley Dam relicensing process began in 1984 when the Cen

tral Nebraska Public Power and Irrigation District (“CNPPID”) and

the Nebraska Public Power District (“NPPD"’) filed relicensing ap-

plications pursuant to FERC regulations. See 18 C.F_R. § 16.3(a)

(1991). FERC initially rejected the relicense applications for their

failure to assess the impact of the projects on whooping crane habi-

tat. Central Nebraska Public Power and Irrigation District, 39 FERC

{ 61,378 at 62,222-23 and n.4 (1987). Since 1987, the projects have

been operating under annual licenses pending the issuance of the

permanent licenses. See 16 U.S.C. § 808(a) (1988). Studies are con-

tinuing concerning the need for wildlife protective conditions in the

permanent licenses. See, e.g., Central Nebraska Public Power and

Irrigation District, 43 FERC 4 61,225 at 61,580-81 (1988). The issue

of the need for interim conditions in the annual licenses is present.

ly on appeal for the second time before the D.C. Circuit Court of Ap-

peals. Platte River Whooping Crane Critical Habitat Maintenance

Trust v. FERC, No. 90-1397 (D.C. Cir. filed Aug. 3, 1990). See also

Platte River Whooping Crane Critical Habitat Maintenance Trust v.

FERC, 876 F.2d 109 (D.C. Cir. 1989) (cause remanded to FERC to

determine whether substantial evidence existed to require interim

conditions in annual licenses for maintenance of instream flows).

12

ing an environmental impact statement addressing the

issue, among others, of whether conditions to maintain

instream flows should be included in the permanent

licenses of CNPPID and NPPD. FERC will not proceed

with the license applications until the impact statement

is completed.

_ Also on the federal level, the U.S. Bureau of Recla-

mation has begun consultation with the U.S. Fish and

Wildlife Service under Section 7 of the Endangered Spe-

cies Act to assess the impacts of the reclamation projects

in Colorado, Wyoming and Nebraska on the North Platte

and South Platte Rivers on endangered and threatened

species habitat in the Platte River in central Nebraska.

See Nebraska Brief at 35.

It is apparent throughout Nebraska's motion,

amended petition and brief tha: the possibility that Lake

McConaughy, the North Platte Project in Nebraska, or

other proposed future projects in Nebraska might be

required to maintain instream flows is the driving force

behind Nebraska’s present motion to amend, as it was

behind the first such motion.

IV. SUMMARY OF ARGUMENT.

This is the second time that Nebraska has filed a

motion to amend her petition while a summary judgment

motion was pending. Nebraska’s present motion is no

more than an attempt to accomplish indirectly that which

the Court denied her leave to do directly with the first

motion to amend. Quite simply, Nebraska fears that in

the future Kingsley Dam, the North Platte Project, or

proposed Nebraska water projects on the Platte River will

be required to maintain certain instream flows for

13

wildlife habitat in central Nebraska. In mere anticipation

of such an outcome in pending federal and state adminis-

trative proceedings, Nebraska would ask the Court to

reapportion the North Platte River by imposing new

injunctions against present and future uses in Wyoming.

Principles of finality and certainty should compel the

Court to deny Nebraska’s attempt to upset the existing

apportionment on the basis of the allegations in the

Amended Petition. Furthermore, given the caution with

which the Court exercises its original jurisdiction, the

allegations in Nebraska’s Amended Petition are too

vague, indefinite and speculative to justify exercise of

that jurisdiction.

To accept Nebraska’s Amended Petition would be to

engage the Court in factual litigation over the need for

and quantification of instream flows for wildlife habitat

in central Nebraska, the very issue the Court avoided

in denying Nebraska’s first motion to amend. The Court

should not undertake such complex, factual litigation

where, as here, the same issues are being addressed in

other, more appropriate forums.

The states are in sharp disagreement over construc-

tion of the existing Decree and definition of the extent

of Nebraska’s apportionment under the Decree. The par-

ties have spent considerable time and money preparing

those Decree interpretation issues for resolution in the

pending motions for summary judgment. Nebraska

should not be permitted to avoid or postpone resolution

of the pending issues by amending her petition. Those

issues must be resolved before the Court considers enter-

taining any claim to modify, supplement or replace the

apportionment under that Decree.

14

V. ARGUMENT.

A. The Supreme Court Exercises Its Original

Jurisdiction With Extreme Caution and

Only Where Absolutely Necessary.

This Court will not exercise the extraordinary

power of its original jurisdiction to enjoin the activities

of one sovereign state at the instance of another unless

injury of a serious magnitude is shown by clear and

convincing evidence. Connecticut v. Massachusetts,

282 U.S. 660 (1931); Idaho v. Oregon, 462 U.S. 1017

(1983); New York v. New Jersey, 256 U.S. 296, 309

(1921).

The caution with which the Court exercises its origi-

nal jurisdiction serves two purposes. First is a recogni-

tion of the sovereign dignity of the states that come before

it, particularly of the state that would be subject to the

Court’s injunction. See Missouri v. Illinois, 200 U.S. 496,

520-522 (1906); New York v. New Jersey, 256 U.S. 296

(1921). Second, and at least as important to the Court,

is a recognition of the limits of this Court’s docket and

its reluctance to engage in complex and technical factual

issues, particularly where those issues may be better

resolved in another forum. Ohio v. Wyandotte Chemicals

Corp., 401 U.S. 493 (1971). For both purposes, the Court

has reserved “substantial discretion to make case-by-case

judgments as to the practical necessity of an original

forum in this Court for particular disputes within our

constitutional original jurisdiction.”” Texas v. New Mex-

ico, 462 U.S. 554, 570 (1983).

As the Court said in Alabama v. Arizona, 291 U.S.

286, 291-292 (1934):

15

[A] state asking leave to sue another to prevent

the enforcement of laws must allege, in the com-

plaint offered for filing, facts that are clearly suffi-

cient to call for a decree in its favor. Our decisions

definitely establish that not every matter of suffi-

cient moment to warrant resort to equity by one

person against another would justify an interfer-

ence by this Court with the action of a state. Mis-

souri v. Illinois, 200 U.S. 496; New York v. New

Jersey, 256 U.S. 296; North Dakota v. Minnesota,

263 U.S. 365. Leave will not be granted unless the

threatened injury is clearly shown to be of seri-

ous magnitude and imminent."

Nebraska suggests that a well-pleaded complaint in

the ordinary sense under the Federal Rules of Civil Proce-

dure should be accepted by the Court as a matter of

course. However, the Court is not constrained to merely

analyze the sufficiency of the pleading in the same man-

ner as a lower federal court would under Fep.R.Civ.P.

12. Rather, the Court has discretion to decline cases that,

although “‘well-pleaded,” are otherwise inappropriate for

its original jurisdiction. See Arizona v. New Mexico, 425

U.S. 794 (1976); Massachusetts v. Missouri, 308 U.S. 1

(1939).

The Court will not exercise its original jurisdiction

over claims that involve only a future and speculative

threat of injury. New York v. Illinois, 274 U.S. 488, 489

11. Nebraska tries to distinguish Alabama v. Arizona, 291 U.S. 286

(1934), as having “no precedential effect on the clearly discernible

impacts arising from the competition for interstate water.’ Nebraska

Brief at 31, n.14. To the contrary, Alabama v. Arizona is on point

precisely because Nebraska’s Amended Petition identifies no clearly

discernible impacts but only hypothetical and speculative allegations

of injury that are not ripe for decision.

16

(1927) (dismissing a claim by New York for an injunc-

tion against the use of Great Lakes water that New York

claimed would interfere with her use of the waters of the

Niagara and St. Lawrence Rivers for power development,

where the complaint did “not show that there is any pres-

ent use of the waters for such purposes which is being

or will be disturbed; nor that there is any definite pro-

ject for so using them which is being or will be affected”).

See also Arizona v. California, 283 U.S. 423, 462 (1931)

(dismissing bill of complaint “because it is based not on

any actual or threatened impairment of Arizona’s rights

but upon assumed potential invasions’’); United States

v. West Virginia, 295 U.S. 463, 475 (1935) (mere asser-

tion of a right to build a dam did not constitute an

imminent threat to the government’s control of navi-

gation).

It is true that a controversy between states involv-

ing competing present or imminent uses of an overap-

propriated and water-short interstate stream is gener-

ally appropriate for the exercise of the Court’s original

jurisdiction. However, Nebraska fails to show that this

is such a case. Rather, the Amended Petition alleges only

potential conflicts that are not ripe for adjudication in

the original jurisdiction.

B. Nebraska Has Not Alleged Any Present Injury

From Wyoming Actions That Would Warrant

Reopening the Existing Apportionment.

_.Nebraska’s Amended Petition falls far short of alleg-

ing facts that, if proved, would establish any present

injury to Nebraska’s apportionment or other equitable

interests. The Court wrote in 1945 that “equitable appor-

17

tionment does not permit Nebraska to demand direct flow

water from above Whalen for use below Tri-State.”

Nebraska v. Wyoming, 325 U.S. 589, 628 (1945). Nebraska

herself alleges that since 1946 she has received an abun-

dant supply of such direct flow past Tri-State Dam, on

the order of 150,000 acre-feet each irrigation season in

excess of her entitlement under the existing apportion-

ment. Nebraska Brief at 11."

Although the Court made specific findings in 1945

concerning the reasonable water requirements of the

Nebraska lands served by diversions between Whalen

and Tri-State Dam, Nebraska does not dispute the fact

that her canals have diverted far more than those

requirements since 1945. Rather, she asserts now that

she is entitled to the continued flow of such surpluses.

Additionally, Nebraska’s own allegations show that the

supply available for Lake McConaughy has been substan-

tially greater than the supply anticipated by Special Mas-

ter Doherty. See Statement of Facts, supra, at 9.

In Colorado v. Kansas, 320 U.S. 383, 400 (1943), the

second attempt by Kansas to convince the Court to limit .

Colorado’s use of the Arkansas River was denied because

12. The “retrofit” of Tri-State Dam that Nebraska says threatens to cut

off these flows was performed by one of Nebraska’s own water users,

the Farmers Irrigation District, in order to more efficiently use the

supplies available at the dam. Nebraska's suggestion that the repair

of Tri-State Dam will cut off the flows past Tri-State Dam is very

misleading. The majority of such flows since 1946 occurred in the

very wet years when large, uncontro!lable surplus flows passed Tri-

State Dam. In any event, in light of the Court’s determination in

1945 that Nebraska was not entitled to any direct flow past Tri-State

Dam, Nebraska has no ground to complain about improvements

made for the sake of efficiency and better water management by one

of her own water users.

18

Kansas failed to prove that Colorado had materially

increased her depletions to the substantial injury of

Kansas since the earlier litigation. Here, Nebraska, like

Kansas, is back before the Court seeking new injunctions

against the upstream state having once litigated the mat-

ter. However, in this case, the Court previously appor-

tioned the river and Nebraska has not even alleged facts

that would demonstrate increased depletions to the injury

of Nebraska’s equitable apportionment.

Nebraska characterizes Count I of the Amended Peti-

tion as a claim for apportionment of “previously unap-

portioned non-irrigation season flows” as if she were ask-

ing the Court to draw a new apportionment on a clean

slate. But the slate is not clean. There is an existing

Decree and an existing apportionment that was intended

to describe all of Nebraska’s rights to demand natural

flow of the North Platte River from Wyoming. Nebraska

now seeks to reapportion the North Platte by attempt-

ing to reopen that Decree to impose new injunctions on

Wyoming which the Court previously found unnecessary.

The importance of finality and certainty compels the

Court to hold Nebraska to a high burden in seeking to

reopen the Decree. Arizona v. California, 460 U.S. 605

(1983).

Nebraska urges the Court to exercise its retained

jurisdiction under the Decree to consider “changed con-

ditions” since entry of the Decree. However, she alleges

neither changed conditions that threaten her apportion-

ment under the existing Decree nor changed conditions

that would justify a reapportionment to enlarge her

share. The only changed condition is that Wyoming has

not yet fully used her apportionment while Nebraska has

received far more than her share of the river since 1945.

19

There is simply no reason for the Court to reopen the liti-

gation to consider new and more limiting injunctions on

Wyoming at this time. The Court should instead encour-

age expeditious resolution of the pending claims to

enforce the existing apportionment.

C. Nebraska’s Tendered Claim for an Apportion-

ment of Non-Irrigation Season Flows is Too

Vague and Indefinite to Admit of Adjudication :

in the Original Jurisdiction.

In Count I of the Amended Petition, Nebraska seeks

a new or modified apportionment in effect.to enjoin all

new depletions in Wyoming during the non-irrigation

season. However, neither the actions of Wyoming that

Nebraska complains of nor the injury Nebraska fears are

detailed sufficiently in the Amended Petition to meet the

threshold showing of imminent and serious injury

required to invoke this Court’s original jurisdiction.

1. The Wyoming actions alleged in Nebraska's

Amended Petition either are already being

litigated before the Special Master or are too

speculative and remote to warrant exercise

of the Court’s original jurisdiction.

Nebraska describes the Wyoming actions that she

complains of in Count I of the Amended Petition as

follows:

The current and imminent actions of the State of

Wyoming, including the pending claims before the

Lo Court, as well as Wyoming’s claimed but unspeci-

fied right to develop future uses, infringe upon

iia icine

20

Nebraska’s equitable share of the North Platte

River during the non-irrigation season.

Amended Petition at 10, Count I, ¢ 37 (emphasis added).

‘Pending claims before the Court” apparently is a

reference to the pending summary judgment motions in

which Wyoming argues that Nebraska’s apportionment

of water from Wyoming under the 1945 Decree was

limited to the water found by the Court to be reasonably

necessary for the uses supplied by diversions at and above

Tri-State Dam."* Nebraska’s Amended Petition alleges

that the legal position advanced by Wyoming on that

issue violates Nebraska’s existing apportionment and

threatens Nebraska’s use of what she calls “‘unappor-

tioned, non-irrigation season flows.’ Nebraska’s appar-

ent fear of an adverse ruling on the legal issues now pend-

ing before the Special Master is no ground for amending

her petition at this time.

Likewise, Nebraska’s complaint about “Wyoming's

claimed but unspecified right to develop future uses” does

not show an imminent threat that should move this Court

to exercise its original jurisdiction. For example, with

respect to the Laramie River, the only specific projects

13. Nebraska characterizes Wyoming's position as trying to limit

Nebraska's diversions between Guernsey Dam and Tri-State Dam

to “arbitrary” amounts. Amended Petition at 8, para. 24e. There

is nothing arbitrary about Special Master Doherty’s detailed find-

ings of the water requirements that were made only after painstak.

ing analysis of extensive evidence and were expressly approved by

the Court. Doherty Report at 53-87, 196-253; Nebraska v. Wyoming,

325 U.S. 589, 648-49 (1945). Those very requirements that Nebraska

characterizes as arbitrary were adopted in Paragraph IV of the

Decree as fixed “diversion limitations in second feet and seasonal

limitations in acre feet” for the Nebraska State Line Canals. /d.,

325 U.S. at 667.

21

that Nebraska identifies are Grayrocks Reservoir, which

began operating in 1981, and the potential Corn Creek

Project. Both projects are already at issue in the pend-

ing case. The pending summary judgment motions

address the issue, among others, of whether, in the Gray-

rocks Settlement Agreement,’ Nebraska gave up her

right to argue that the use of Laramie River water by

Grayrocks Reservoir or the Corn Creek Project violates

her equitable apportionment. Again, allowing Nebraska’s

Amended Petition would only delay and prejudice reso-

lution of those issues on the pending motions for sum-

mary judgment.

Beyond the allegations concerning Grayrocks Reser-

voir and the Corn Creek Project, Nebraska’s only claim

with respect to the Laramie River is that she is injured

by Wyoming “claiming the right to dry up the Laramie

River.” Amended Petition at 7, para. 24b."* The pend-

14. The Grayrocks Settlement Agreement ended litigation in 1978

brought by Nebraska and several environmental groups to stop con-

struction of Grayrocks Reservoir on the ground that the U.S. Army

Corps of Engineers and the Rural Electrification Administration had

violated the National Environmental Policy Act, 42 U.S.C. §§

4321-4370b (1988 & Supp. I 1989) (current version), and the Endan-

gered Species Act, 16 U.S.C. §§ 1531-1544 (1988 & Supp. I 1989) ‘cur-

rent version), in granting approvals for the project. Nebraska v. Rural

Elec. Admin., 12 E.R.C. 1156 (D. Neb. 1978), appeal dismissed upon

stipulation, 594 F.2d 870 (8th Cir. 1979). Under that agreement, the

operator of the reservoir, Basin Electric Power Cooperative, is

obligated to maintain certain year-round minimum flows at the

mouth of the Laramie River. The settlement agreement is reproduced

at Appendix A-24 to A-32 of Wyoming Brief in Opposition to Motion

for Leave to File Petition, December 17, 1986.

15. Although there is no threat “to dry up the Laramie River,” Wyo-

ming does believe her right to use Laramie River water is unre

stricted under the plain language of this Court's decree in Wyoming

v. Colorado, 259 U.S. 419 (1922), modified, 260 U.S. 1 (1922), vacated

and new decree issued, 353 U.S. 953 (1957) (“the State of Wyo-

22

ing summary judgment motions again address the issue

of whether the decrees in Wyoming v. Colorado and

Nebraska v. Wyoming (1) effectively apportioned all the

Laramie River to Colorado and Wyoming. Resolution of

that issue could completely dispose of Nebraska’s claim

to the Laramie River.

Even if the Laramie River had not been fully appor-

tioned between Colorado and Wyoming, Wyoming’s claim

to the Laramie would not raise a present dispute for reso-

lution in the original jurisdiction. In U.S. v. West Vir-

ginia, 295 U.S. 463 (1935), the United States filed a bill

of complaint taking issue with West Virginia’s claim that

she had the right and the power to construct a dam across

the Ohio River notwithstanding the federal government's

power over navigable waters. In dismissing the United

States’ bill of complaint, the Court said:

The sovereign rights of the United States to con-

trol navigation are not invaded or even threatened

by mere assertions . ... The control of navigation

by the United States may be threatened by the

imminent construction ci the dam, but not by per-

mission to construct it.

ming... shall have the right to divert and use all water flowing

and remaining in the Laramie River and its tributaries after such

diversion and use in Colorado”). Although Nebraska raised and

litigated a claim for apportionment of the Laramie River in Nebraska

v. Wyoming (D, the Court recognized that the Laramie River had

been previously apportioned between Colorado and Wyoming and

declined to apportion any of the Laramie River to Nebraska, either

in or out of the irrigation season. Nebraska v. Wyoming, 325 U.S.

589, 592 n.1 (1945). As Wyoming argues in her pending summary

judgment motion, the principle of finality underlying the doctrine

of res judicata precludes relitigation of Nebraska’s claim to an appor-

tionment of the Laramie River. See Arizona v. California, 460 U.S.

605, 625-26 (1983); Wyoming v. Colorado, 286 U.S. 494, 507 (1932).

23

295 U.S. at 475. See also Arizona v. California, 283 U.S.

423, 462-463 (1931) (failure to allege ‘definite physical

acts by which [the defendant] is interfering, or will

interfere, with the exercise by Arizona of its right to make

further appropriations by means of diversions . . .”” was

cause for dismissal of Arizona’s bill of complaint).

The other claims tendered by Nebraska in Count |

of its Amended Petition likewise fall far short of raising

issues that should move this Court to exercise its origi-

nal jurisdiction. With respect to proposed construction

on the tributaries between Pathfinder and Guernsey in

Wyoming, it has been clearly shown that Deer Creek

Reservoir is the only proposed project."® Again, the ques.

tion of whether the construction and operation of Deer

Creek Reservoir will violate the Decree or injure Nebras-

ka’s equitable apportionment under the Decree is Lefore

the Special Master on Wyoming’s motion for summary

judgment. Likewise, the question of whether Nebraska's

decreed apportionment includes any right to store natu-

16. In the Nebraska Brief, but not in her Amended Petition, Nebraska

lists the names of what she terms “numerous water development

projects in Wyoming.” Nebraska Brief at 20. Without including any

specific allegation in the Amended Petition, Nebraska suggests that

the listed items constitute a significant threat of new depletions to

the North Platte River. The suggestion is misleading. Many of the

listed items are studies aimed at improving the efficiency of water

use, including the importation of new sources into the North Platte

basin. Others are old studies of potential projects that have been

given no serious consideration since the 1960's or 1970's. Still others

are projects for the improvement of municipal water delivery sys-

tems that have already been completed. It has been necessary for

Wyoming and its water users to commit substantial funding toward

improving the efficiency of use of the North Platte partly because

the injunctions in the Decree restrict that use. In contrast, Nebraska

has enjoyed abundant supplies since entry of the Decree and has com-

mitted little toward more efficient use of her available resources.

24

ral flow in the Inland Lakes without a Wyoming permit

is also pending before the Special Master on the summary

judgment motions. In short, the Wyoming actions that

Nebraska complains of in Count I of the Amended Peti-

tion all are presently at issue in the pending claims before

the Special Master or are too speculative and indefinite

to warrant exercise of this Court’s original jurisdiction.

2. The injury alleged by Nebraska is dependent

on the outcome of disputes pending in other

intrastate and federal forums.

Boiled down, Nebraska’s claim for a new apportion-

ment seeks to enjoin new Wyoming water uses in the

North Platte basin because Nebraska fears that all the

water presently crossing the state line might be needed

in the future to satisfy uses that are competing with each

other in Nebraska. The conflict between instream uses

for wildlife habitat in the central Platte and upstream

consumptive uses for irrigation and electric power gener-

ation in Nebraska is at the heart of Nebraska’s injury

claims."” |

Nebraska points out thet Kingsley Dam, which forms

Lake McConaughy, is the “‘structure through which all

17. In this regard, Nebraska's agenda is identical to that of the environ-

mental groups that have sought intervention in this case. Neither

Nebraska nor those environmental groups are content to allow the

question of the need for flows or a quantification of flows for instream

. wildlife purposes to take place in an appropriate forum before seek-

ing further injunctions against Wyoming. Counsel for the Audubon

Society described the strategy as to “Let [the water] all get down.

stream to Nebraska and then we'll worry about the details.” June

7, 1991, Hearing Before Special Master on Summary Judgment,

Transcript at 177.

25

subsequent downstream flows are controlled.”” Nebraska

Brief at 10. The Federal Energy Regulatory Commission

(“FERC”) is presently considering applications to

relicense the hydropower facilities associated with Kings-

ley Dam. (See Statement of Facts, supra, at 11-12.)

Nebraska fears that the new licenses will be conditioned

on minimum releases for the maintenance of instream

flows at downstream wildlife habitat with a resulting

reduction in the amount of water stored in Lake

McConaughy and available for irrigation and power

generation at Kingsley Dam and below. In anticipation

of such a result, the Amended Petition would pray the

Court to limit future use upstream in Wyoming.

In a related proceeding, the Central Platte Natural

Resources District, a political subdivision of the State of

Nebraska, seeks an instream flow water right under

Nebraska law for the central Platte in the minimum

amount necessary to maintain certain environmental

values, including wildlife habitat. Jn re Application Nos.

A-17004 through A-17009 of the Central Platte Natural

Resources District (Nebraska Department of Water

Resources filed July 25, 1990). Although the standard by

which that application will be judged is the Nebraska

statute, the factual issue of the biological necessity of

minimum instream flows for wildlife habitat is likewise

being adjudicated there.

The mere possibility of an outcome in those pending

proceedings adverse to the interests of Lake McConaughy

and its users cannot be the ground for invoking the

Court’s original jurisdiction, particularly where the Wyo-

ming actions complained of are so uncertain. In New York

v. Illinois, 274 U.S. 488, 489-490 (1927), the Court would

not hear New York’s complaint of injury to the possible

26

future use of the St. Lawrence River for hydropower pur-

poses where such future use was uncertain and specula-

tive. Likewise, Nebraska’s claim of injury in mere antic-

ipation of a certain outcome in the pending FERC

proceeding and state water right proceeding does not

merit the exercise of this Court’s original jurisdiction.

See also Arizona v. California, 283 U.S. 423, 463-64

(1931).

Wyoming agrees with Nebraska that this Court alone

has the power to adjust its earlier apportionment of the

North Platte River. However, until the various federal

and intrastate proceedings involving instream flows for

wildlife habiéat have run their course, it is premature

to speculate whether Nebraska’s apportionment under

the existing Decree is sufficient to satisfy the competing

uses in Nebraska, whether the existing apportionment

is no longer equitable, or whether any future use in Wyo-

ming might cause Nebraska substantial harm. For polit-

ical reasons Nebraska may consider it more convenient

for the Court to resolve the intrastate conflict between

instream and consumptive uses here. However, the Court

should not exercise its original jurisdiction for the mere

convenience of a party. See California v. Nevada, 447 U.S.

125 (1980). Rather, original jurisdiction is necessarily

reserved for addressing only those cases or controversies

’ that meet the strict standards the Court has laid down.

Alabama v. Arizona, 291 U.S. 286 (1934); United States

v. Nevada, 412 U.S. 534 (1973).

27

D. The Relief Nebraska Now Seeks Against Wyo-

ming is Identical to the Relief Sought in

Nebraska’s First Attempt to Amend Her Peti-

tion and Should Be Denied for the Same Rea-

sons the First Amendment Was Denied.

Despite Nebraska’s earnest assurance that her sec-

ond motion to amend is not like her first, which the Court

denied, the two bear only cosmetic differences. In her first

amended petition, Nebraska requested modification or

interpretation of the existing Decree to include protec-

tion of wildlife habitat as well as irrigation uses. Amend-

ed Petition for an Order Enforcing Decree, for Injunctive

Relief, and for Modification of Decree at 4-5, paras. 7, 8

(January 11, 1988). In the second Amended Petition, Ne-

braska requests an apportionment of non-irrigation sea-

son flows for the protection of those same uses. Altheugh

the language of the two amended petitions differs, the

relief Nebraska would now seek against Wyoming is iden-

tical to the relief sought in her first amended petition

— to freeze all use of the North Platte River in Wyoming.

More importantly, the driving force behind both motions

is the same assertion that “all water which currently

flows into Nebraska is important to support minimum

stream flows for the Platte River.’’ Nebraska Brief at 19.

If the Court accepts Nebraska’s Amended Petition,

it will embark upon an extremely expensive and time-

consuming trial of the factual question of whether, or the

extent to which, instream flows in the central Platte Riv-

er are essential to endangered species and other wildlife

habitat at a time when both state and federal adminis-

trative proceedings are addressing that same question.

To accept Nebraska’s Amended Petition also would

engage the Court in complex water planning and policy

28

issues that are better left to the states and the federal

regulatory agencies in the first instance. Those are the

very issues that this Court avoided by denying

Nebraska’s first motion for leave to amend. Nebraska v.

Wyoming, 485 U.S. 931 (1988).

This Court is best suited to function in its role as the

appellate court of last resort and not as a trial court for

the purpose of trying such complex, technicai issues. Ohio

v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971). The

Court is also particularly reluctant to take on such fac-

tual issues where they may be resolved in other, more

appropriate forums. See Arizona v. New Mexico, 425 U.S.

794 (1976). Because those issues are being addressed in

the context of state and federal administrative proceed-

ings created specifically to deal with them, the Court is

justified in declining to take on such complex, factual Liti-

gation.

E. The New Allegations of Decree Violations in

Count II of Nebraska’s Amended Petition are

Both Groundless and Untimely.

The relief Nebraska seeks in Count II of the Amended

Petition is the same as she seeks in the pending claims

— an injunction against potential Wyoming depletions

of the river in violation of Nebraska’s claimed apportion-

ment under the Decree. Resolution of the pending sum-

mary judgment motions should dispose of some, if not all,

of Nebraska’s new allegations, because those motions ad-

dress the controlling legal issue — the extent of Nebras-

ka’s apportionment under the existing Decree. After the

present claims are resolved, any party would be free to

seek leave to amend the pleadings or to bring new claims

- if such claims are properly supported. If that should

29

happen, the Court’s decision interpreting the existing

Decree would help focus the issues more sharply.

The claims in Count II of the Amended Petition

appear calculated to delay and prejudice resolution of

Nebraska’s original petition. At the same time, they lack

credibility and substance. Had Nebraska been concerned

about the matters described in Count II, she would have

raised them in her original petition or brought them to

Wyoming’s attention earlier. Nebraska’s statement that

she tried to resolve those matters with Wyoming before

filing the Amended Petition is false. Nebraska never

raised those issues with Wyoming," although doing so

might have provided an opportunity to resolve them and

avoid needless litigation.

Nebraska seems to believe that the Court would apply

a more relaxed standard in determining whether to

accept a petition alleging violation of the existing Decree

than it would apply to a claim for a new apportionment.

In Count II of the Amended Petition, Nebraska tries to

create some additional, colorable claims of Decree viola-

tions in the hope that the Court would accept the entire

Amended Petition under a lesser standard. Even assum-

ing a lesser standard would apply to such claims, the

claims in Count II are either patently groundless of too

vague to provide a basis for exercise of the Court’s origi-

nal jurisdiction.

18. The possible exception is that Nebraska registered her opposition

to annual water supply contracts entered into between the U.S.

Bureau of Reclamation (““USBR”’) and Pacificorp (formerly Pacific

Power & Light) for temporary use of Glendo Reservoir storage. How-

ever, Nebraska's Amended Petition is so vague that it is impossible

to tell if the USBR/Pacificorp temporary contract is the subject of

Count II.

30

For example, the first of the new allegations asserts

a violation of the Decree from operation of a 1945 Wyo-

ming statute which became law even before the Decree

was entered. The statute in question confirmed the right

of all irrigation water rights then existing to divert up

to an additional one cubic foot per second (cfs) per 70 acres

from surplus water available after satisfaction of exist-

ing rights to one cfs per 70 acres. Act of Feb. 24, 1945,

ch. 153, 1945 Wyo. Sess. Laws 189 (effective Feb. 24,

1945) (now codified at Wyo. Stat. §§ 41-4-317 to 41-4-324

(1977)). Nebraska fails to point out that the statute she

cites was preceded by another statute that broadly

provided for diversions of “surplus water” in excess of

one cfs per 70 acres. Act of Feb. 19, 1935, ch. 105, 1935

Wyo. Sess. Laws 154 (amending Wyo. Rev. Stat. § 122-117

(1931) and now codified at Wyo. Stat. § 41-4-317 (1977).

That previous statute was the subject of specific testi-

mony in Nebraska v. Wyoming (1). Transcript of Hear-

ings Before Special Master Doherty at 19,454, 21,164,

25,988-25,991. The existence of the surplus water stat-

ute and the common practice of diverting more than one

cfs per 70 acres in time of high runoff were drawn to Spe-

cial Master Doherty’s attention by Wyoming. Opening

Brief of the State of Wyoming Before Special Master

Doherty at 181-82. Special Master Doherty in turn

expressly held that no limitations on diversion amounts

were warranted above Whalen. Doherty Report at 135,

145, 147-48. The Court agreed and adopted Doherty’s pro-

posed injunctions tailored to limit irrigated acreage

rather than diversions. Nebraska v. Wyoming, 325 U.S.

589, 623-24 (1945). Thus, the issue was litigated in the

earlier case and there is no justification for Nebraska’s

attempt to relitigate it nearly 50 years later.

The remaining allegations of Nebraska’s Count II are

equally without substance. They lack sufficient detail to

31

enable Wyoming to respond. If any such claims are

accepted for filing, Wyoming reserves the right to seek

a summary dismissal or other disposal of such claims on

the merits.

F. Accepting the Amended Petition Would Cause

Undue Prejudice to Wyoming, Colorado and the

Other Litigants.

The injection of new claims into the case at this time

would “only serve to delay adjudication on the merits and

needlessly add to the expense that the litigants must

bear.” Ohio v. Kentucky, 410 U.S. 641, 644 (1973).

Nearly five years ago, the parties joined issue on

Nebraska’s allegations that Wyoming was violating or

threatening to violate Nebraska’s apportionment under

the Decree. The parties have spent millions of dollars get

ting the case ready for resolution of those claims. Wyo-

ming has had to postpone construction of a needed muni-

cipal water project, Deer Creek Reservoir, during the

pendency of this litigation.’ Wyoming is entitled to a

prompt resolution of Nebraska’s claim that Deer Creek

Reservoir will violate the apportionment under the

Decree.

In submitting cross-motions for summary judgment,

the states have agreed that the issues of construction of

the existing Decree should be determined as a matter of

law. The Court will soon receive a recommendation

from the Special Master for resolution of the motions.

19. As Wyoming has pointed out to the Sperial Master, any further

delay works as much to Nebraska’s advantage as it works greatly

to Wyoming's disadvantage. The cost of construction of Deer Creek

Reservoir has risen sharply during the pendency of this litigation.

32

Wyoming hopes that the Court will decide the control-

ling questions of law during this term. To now allow new

allegations of Decree violations would only delay reso-

lution of the critical Decree interpretation issues that

have been pending before the Court for nearly five years.

The uncertainty created by Nebraska’s pending claims

of violation of the Decree is a source of continuing preju-

dice to Wyoming. Until the pending dispute over con-

struction of the existing Decree is resolved, it is prema-

ture to consider reapportionment of the North Platte

River.

The admonition of Fep.R.Civ.P. 15(a) that leave to

amend should “‘be freely given when justice so requires”

must be tempered by the caution with which this Court

exercises its original jurisdiction. Even in the lower fed-

eral courts, the burden to show that one is entitled to

amend is substantially greater when a summary judg-

ment motion is pending. Verhein v. South Bend Lathe,

Inc., 598 F.2d 1061 (7th Cir. 1979) (party seeking amend-

ment while a summary judgment motion is pending must

show affirmatively that the proposed amendment has

“substantial merit”); Carey v. Beans, 500 F. Supp. 580

(E.D. Pa. 1980), aff'd 659 F.2d 1065 (3rd Cir. 1981) (“‘sub-

stantial and convincing evidence supporting the newly

asserted claim” is also required). See also Glesenkamp

v. Nationwide Mut. Ins. Co., 71 F.R.D. 1, 4 (N.D. Cal.

1974), aff'd 540 F.2d 458 (9th Cir. 1976). The vague and

unspecified claims tendered in the Amended Petition

have not been shown to have substantial merit or the

support of convincing evidence. Under such circum-

stances, a federal district court would have discretion to

deny the motion to amend. Foman v. Davis, 371 U.S. 178,

182 (1962); Zenith Radio Corp. v. Hazeltine Research,

Inc., 401 U.S. 321, 330-31 (1971). This Court has even

33

broader discretion to deny the amendment because the

tendered claims are inappropriate for litigation in the

original jurisdiction.

VI. CONCLUSION.

For the foregoing reasons, the Court should deny

Nebraska’s Motion for Leave to File Amended Petition.

Respectfully submitted,

JOSEPH B. MEYER

Attorney General of Wyoming

DENNIS C. COOK

Senior Assistant Attorney General

Counsel of Record

123 Capitol Building

Cheyenne, Wyoming 82002

(307) 777-7841

RAPHAEL J. MOSES

CHARLES N. WOODRUFF

JAMES R. MONTGOMERY

Special Assistant Attorneys General

MOSES, WITTEMYER, HARRISON

AND WOODRUFF, P.C.

1002 Walnut Street, Suite 300

Boulder, Colorado 80302

(303) 443-8782