Amicus Curiae Brief — Nebraska v. Wyoming

MOTION Fitzy

te Le Te)

DES $0 1207 | 66

No. 108, Original

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1994

STATE OF NEBRASKA, Plaintiff,

v.

STATE OF WYOMING, et al., Defendants.

MOTION OF BASIN ELECTRIC POWER COOPERATIVE FOR

LEAVE TO FILE AND MEMORANDUM IN RESPONSE TO

CERTAIN EXCEPTIONS TO THIRD INTERIM REPORT OF

THE SPECIAL MASTER

Edward Weinberg

Counsel of Record

Richmond F. lan

DUNCAN, WEINBERG, MILLER

& PEMBROKE, P.C.

1615 M Street, N.W.

Suite 800

Washington, DC 20036

(202) 467-6370

Michael J. Hinman

General Counsel

Claire Olson

Assistant General Counsel

Basin Electric Power

Cooperative

1717 E. Interstate Ave.

Bismarck, ND 58501

December 30, 1994 (701) 223-0441

No. 108, Original

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1994

STATE OF NEBRASKA,

Plaintiff,

v.

STATE OF WYOMING, et al.,

Defendants.

MOTION OF BASIN ELECTRIC POWER COOPERATIVE

FOR LEAVE TO FILE MEMORANDUM IN RESPONSE —

TO CERTAIN EXCEPTIONS TO THE THIRD INTERIM

REPORT OF THE SPECIAL MASTER

Basin Electric Power Cooperative (Basin) moves for

leave to file the accompanying memorandum in response to

Certain exceptions to the Third Interim Report of the Special

Master. In support of its motion Basin states:

1. Basin is the operator and, with five other

consumer owned electric utilities, the owner of the Missouri

Basin Power Project, the facilities of which include the

2

Grayrocks Dam and Reservoir and the 1500 megawatt

Laramie River Power Station (Grayrocks) located on the

Laramie River in Wyoming about ten miles above its

confluence with the North Platte River. The owners of the

project and their member distribution systems provide

electric energy to about 1.2 million people in sight states.

2. Basin is an amicus curiae in the proceedings

before the Special Master and twice before has been granted

leave by the Court to file memoranda. 485 U.S. 931,

(1988), Spec. Mast. Doc. No. 59; 117 L.Ed. 2d 102 (1992),

Spec. Mast. Doc. No. 423. All amici, including Basin,

were granted leave by the Court to file exceptions and

replies in relation to the First and Second Interim Reports of

the Special Master. 118 L.Ed 2d 538 (1992), Spec. Mast.

Doc. No. 477.

3. Grayrocks controls the Laramie below the

Wheatland Project and is operated in accordance with a

Settlement Agreement and an exemption from the

Endangered Species Act that limit Basin’s diversions and

require it to release certain minimum flows year round,

during both the irrigation and non-irrigation seasons, for the

benefit of the North Platte. See 113 S.Ct. at 1697.

4. The Special Master’s Third Interim Report

recommends that Nebraska be permitted to file her proposed

Count III, which seeks to secure the inflows to Grayrocks

essential to its operation in accordance with the Settlement

Agreement and the Endangered Species Act exemption and

to enjoin Wyoming from impounding or interfering with the

passage to the North Platte of the water Basin is required to

release . Third Int. Rpt. 44. Wyoming’s Second Exception

opposes the Special Master’s recommendation to the extent

ee ee ee ee

3

that, as Wyoming conceives, it contemplates consideration of

injury to non-irrigation season uses and uses downstream of

Tri-State Dam, including protection of endangered species

and wildlife habitat. Nebraska’s proposed Count III and

Wyoming’s opposition involve Basin’s ability to operate

Grayrocks in accordance with the Settlement Agreement and

the order of the Endangered Species Act Committee.

5. The United States and Nebraska except to the

Special Master’s recommendation that Wyoming be

permitted to file her Fourth Cross-Claim against the United

States, which alleges that the United States is operating the

federal reservoirs on the North Platte in violation of the

governing laws and contracts. If the allegations of this claim

are proved and the United States is required to operate the

reservoirs in accordance with law, the pressure on Wyoming

to increase diversions from the Laramie will be substantially

reduced and Basin’s ability to operate Grayrocks in

accordance with the Settlement Agreement and the

Endangered Species Act exemption will be bolstered.

Basin respectfully requests that its motion for leave

to file the accompanying memorandum be granted and that

the recommendations of the Special Master relating to

Nebraska’s Count III and Wyoming’s Fourth Cross-Claim be

accepted.

Respectfully submitted,

Edward Weinberg

Counsel of Record

Richmond F. Allan

DUNCAN, WEINBERG,

MILLER & PEMBROKE, PC

1615 M Street, N.W.

Suite 800

Washington, DC 20036

(202) 467-6370

Michael J. Hinman

General Counsel

Claire Olson

Assistant General Counsel

Basin Electric Power

Cooperative

1717 E. Interstate Ave.

Bismarck, ND 58501

(701) 223-0441

December 30, 1994

No. 108, Original

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1994

STATE OF NEBRASKA,

Plaintiff,

Vv.

STATE OF WYOMING,

Defendant.

MEMORANDUM OF BASIN ELECTRIC POWER

COOPERATIVE IN RESPONSE TO CERTAIN

EXCEPTIONS TO THIRD INTERIM REPORT

OF THE SPECIAL MASTER

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............

EET Waa eG 0's Se dd w eens oss

ARGUMENT

I. Allowing Nebraska To Pursue Her Claim

Ii Is Entirely Consistent with the

Existing Apportionment ............

Il. This Case Is Uniquely Appropriate for

Determining Wyoming’s Fourth Cross-

Claim that the United States Is

Disturbing the Apportionment by

Violating the Laws and Contracts that

Govern the Operation of the North

Platte Reservoirs ................

I ea ga eo. ie

TABLE OF AUTHORITIES

CASES

Nebraska v. REA, 12 Env. Rep. Cases (BNA)

1156 (D. Neb. 1978), judg. vacated and

app. dsm’d, 594 F.2d 870 (8th Cir.

se SW es eae Sk eal en oe ew 5

Nebraska v. Wyoming, 113 S. Ct. 1689

DE DACeEUS oes Coes au eos @ 4 GG 3, 4

CS a ee 12

STATUTES

Endangered Species Act, 16 U.S.C.

ak or ee ee ea 5

Warren Act, 43 U.S.C. § 523 ........... 10

ll

No. 108, Original

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1994

STATE OF NEBRASKA,

Plaintiff,

v.

STATE OF WYOMING, et al.,

Defendants.

MEMORANDUM OF BASIN ELECTRIC POWER

COOPERATIVE IN RESPONSE TO CERTAIN

EXCEPTIONS TO THIRD INTERIM REPORT

OF THE SPECIAL MASTER

STATEMENT

In his Third Interim Report, the Special Master

recommends that Nebraska be allowed to amend her

complaint to include her proposed Count III and that

Wyoming be allowed to amend her pleadings to assert her

proposed Fourth Cross-Claim.

2

By her proposed Count III, Nebraska seeks to secure

the inflows necessary to enable Grayrocks to be operated in

accordance with the Settlement Agreement and the

Endangered Species Act exemption and to enjoin Wyoming

from impeding or interfering with the releases Basin is

required to make from Grayrocks for the benefit of the

North Platte. By her proposed Fourth Cross-Claim

Wyoming seeks to require the United States to operate the

North Platte reservoirs in accordance with the laws and

contracts applying thereto.

Basin supports both of these recommendations. The

recommendation that Nebraska be allowed to pursue her

proposed Count III is supported also by the United States

and the Audubon Society. It is opposed in part by

Wyoming. The recommendation that Wyoming be allowed

to pursue her Fourth Cross-Claim is opposed by the United

States and Nebraska.

Basin is vitally interested in protecting its ability to

operate Grayrocks in accordance with the Settlement

Agreement and the Endangered Species Act exemption, in

assuring that flows of the Laramie above Grayrocks are not

depleted to the extent that Basin’s ability to operate the

project and make the required releases is impaired, and in

assuring that the releases reach the North Platte. Basin is

also vitally interested in preventing the Bureau of

Reclamation from improperly operating the North Platte

reservoirs in ways that diminish the natural flow, disturb the

apportionment prescribed by the decree, and increase

demands on the Laramie.

In 1993, addressing exceptions to the First and

Second Interim Reports of the Special Master, the Court

3

observed that "it is undisputed that Wyoming is not currently

interfering with those flows [that Basin is required to

maintain under the Settlement Agreement]" and that, "Other

than Corn Creek, Nebraska points to no proposed

development that might deplete releases from Grayrocks."

113 S. Ct. at 1698.

This is no longer the case. Shortly after the Court’s

1993 opinion came down, it was discovered that Wyoming

has supplied funds to the Goshen Irrigation District, which

has an old water right on the Laramie supplemental to its

rights on the North Platte, to install new pumps that will

enable Goshen to divert a much larger quantity of water than

it was ever formerly able to do and to interfere substantially

with the passage downstream of the releases Basin is

required to make from Grayrocks. Additionally, it appears

that groundwater pumping in Wyoming is depleting surface

flows in the Laramie between the foot of the Wheatland

Project and Grayrocks.

Substantial evidence has also come to light indicating

that the Bureau of Reclamation, among other improprieties

in the operation of the North Platte reservoirs, routinely

impounds water that constitutes natural flow to which, as

such, holders of water rights on the river are entitled and of

which they are deprived by the Bureau’s malfeasance. To

the extent that the government shorts Goshen of water to

which it is entitled under its natural flow rights on the North

Platte, Goshen looks to the Laramie and claims to be entitled

to tap the flows Basin is obligated to maintain to the North

Platte under the Settlement Agreement and the exemption

granted by the Endangered Species Act Committee.

4

ARGUMENT

I.

Allowing Nebraska To Pursue Her Count III

Is Entirely Consistent with the Existing

Apportionment

In its 1993 opinion, the Court held that the Laramie

below Wheatland had not been apportioned to Wyoming and

that the 1945 decree assumed that the Laramie would

contribute to the natural flow in the Whelan to Tri-State

section of the North Platte apportioned between Wyoming

and Nebraska. The Court indicated that Nebraska would be

entitled to relief if, in the future, Wyoming threatened to

interfere with the releases called for by the Settlement

Agreement. The Court declined to adopt the Special

Master’s recommendation that Paragraph XIII of the decree

be amended to provide specifically for such relief "Because

we do not believe such an amendment would add to our

authority under subparagraph (f).” 113 S. Ct. at 1698.

Nebraska has now made a persuasive showing that,

by activities both above and below Grayrocks, Wyoming is

threatening to interfere substantially with the ability of Basin

to operate the project as required by the Settlement

Agreement and the Endangered Species Act exemption, to

make the releases called for, and to secure the passage of the

water to the North Platte. Subject to proving the threat,

Nebraska is entitled to have her rights to the releases and to

inflows from the Laramie protected by modification of the

decree. To allow Nebraska to pursue her proposed Count III

to secure her rights in the Laramie and the releases Basin is

required to make engenders no modification of the existing

apportionment (as distinguished from modification of the

5

existing decree to secure the apportionment) and is by no

stretch tantamount to allowing Nebraska through the back

door to press claims to obtain water for wildlife and non-

irrigation season purposes, like those she has twice

previously been denied the right to file. Wyo. Except’s &

Br. 28-31. Here, again, by her proposed Count IV,

Nebraska sought leave to amend her complaint to press a

claim for a general non-irrigation season apportionment.

The Special Master recommended against allowing her to do

so, Third Int. Rpt. 35-36, 47, and Nebraska has not excepted

to this recommendation.

While Grayrocks was under construction, Nebraska

and several environmental organizations brought suit in the

federal district court in Nebraska challenging the issuance by

the Corps of Engineers of the 404 permit for the project and

the undertaking of the REA to assist in its financing as in

violation of federal environmental laws. Nebraska v. REA,

12 Env. Rep. Cases (BNA) 1156 (D. Neb. 1978), judgment

vacated and appeal dismissed, 594 F.2d 870 (8th Cir. 1979).

After protracted negotiations, Nebraska, Basin, and the other

parties to the litigation, including the Department of J ustice,

the Corps of Engineers, and the Rural Electrification

Administration, entered into the Settlement Agreement.

Among other things, the Settlement Agreement prescribes

conditions for the use, storage, and release of water by

Grayrocks.

The obligations the Settlement Agreement imposes on

Grayrocks were incorporated as conditions of the exemption

for the project granted by the Endangered Species Act

Committee. See 16.U.S.C. § 1536(e)-(p). The releases

Basin is required to make from Grayrocks for the benefit of

6

the North Platte were found by the Secretary of the Interior

to be necessary to meet the requirements of the Endangered

Species Act and, independently of the Settlement Agreement,

are mandated by the order of the Endangered Species Act

Committee granting the exemption for Grayrocks.

The only issue respecting Grayrocks to be determined

pursuant to Nebraska’s Count III is whether, as a matter of

fact, Wyoming’s actions on the Laramie pose a substantial

threat of interfering with the ability of Basin to operate the

project as required by the Settlement Agreement and the

Endangered Species Act exemption and with the passage to

the North Platte of the releases Basin is required to make

from Grayrocks.

Although Wyoming is not formally a party to the

Settlement Agreement, she actively participated in its

negotiation and sought and applauded its achievement. In

equity she cannot be heard to say that she is not bound by it

and may, with impunity, frustrate or impair its execution.

When Nebraska and Basin reached an impasse in

their efforts to reach a settlement, the Governor of Wyoming

joined the Governor of Nebraska in convening the round of

negotiations which finally succeeded in producing the

Settlement Agreement. The final negotiating session at

which the terms of the agreement were settled upon, subject

to approval by the principals of the parties, was conducted

under the auspices of the Governor of Wyoming in his office

in Cheyenne in early November 1978. The Governors of

Wyoming and Nebraska jointly announced on November 3,

1978 that the settlement had been reached and the Governor

of Wyoming stated that it secured the interests of both

Wyoming and Nebraska.

7

After the agreement had been cleared by all the

signatory parties and on the eve of its being submitted to the

Eighth Circuit, the Attorney General of Wyoming, in a letter

of December 28, 1978, to Basin’s counsel, questioned

Basin’s authority under Wyoming law to make the releases

contemplated by the Settlement Agreement. Significantly,

the Attorney General’s letter noted that he had delayed

raising the point "until all federal actions re approval were

cleared." The letter is reproduced in the Appendix to

Basin’s motion for leave to intervene filed herein on April

13, 1987. Spec. Mast. Doc. No. 14,

Grayrocks’ exemption from the Endangered Species

Act was granted by unanimous vote of the Endangered

Species Act Committee of which, by his request to the

President to be appointed, the Governor of Wyoming was a

member.

II.

This Case Is Uniquely Appropriate for

Determining Wyoming's Fourth Cross-Claim

that the United States Is Disturbing the

Apportionment by Violating the Laws and

Contracts that Govern the Operation of the

North Piaite Reservoirs

By her proposed Fourth Cross-Claim, Wyoming

charges that the United States, through the Bureau of

Reclamation, is violating the laws and contracts that govern

the operation of the North Platte reservoirs by, among other

things, capturing and using natural flow in derogation of the

apportionment made by the decree. She asks simply that the

government be required to comply with the applicable laws

and contracts.

8

During the course of these proceedings substantial

evidence has come to light indicating that the Bureau of

Reclamation routinely impounds water in its North Platte

reservoirs that constitutes natural flow to which, as such,

holders of water rights on the river are entitled and of which

they are being systematically and wrongfully deprived. The

Bureau treats this improperly impounded natural flow as

storage water for which, upon subsequent distribution, it

charges both project entrymen, who were entitled to the

water without charge as natural flow, and others, such as

Warren Act contractors, who were not so entitled.

The Goshen Irrigation District has natural flow rights

on the North Platte and claims to have supplemental natural

flow rights on the Laramie. To the extent that the

government shorts Goshen of water to which it is entitled

under its rights on the North Platte, Goshen looks to the

Laramie, where it claims the right to tap the flows that Basin

is obligated to maintain under the Settlement Agreement and

the order of the Endangered Species Act Committee.

The United States and Nebraska except to the

recommendation of the Special Master that Wyoming be

permitted to pursue her Fourth Cross-Claim on the same

grounds they laid before the Special Master and he found

unpersuasive, namely: that the claim seeks an apportionment

of storage water and would interfere with the Bureau of

Reclamation’s administration of the reservoirs; that

Wyoming is not a proper party to seek enforcement of the

contract rights of entrymen on the North Platte Project; and

that the Bureau’s violations of the laws and contracts

governing the capture and use of water by the project

reservoirs should be challenged in other fora.

9

All of these objections to the allowance of

Wyoming’s Fourth Cross-Claim misrepresent the claim and

the effects of granting the relief Wyoming seeks.

1. Wyoming does not seek an apportionment of

storage water nor to interfere in any way with the proper and

lawful operation of the North Platte reservoirs but only to

compel the government, to the extent it is shown to be doing

otherwise, to operate the reservoirs and to release and

distribute water from them in conformity with the applicable

laws and contracts. Requiring the Bureau of Reclamation to

Obey the laws and contracts governing its administration of

the North Platte Project would hardly constitute

"interfere[nce] with the operation of federal water storage

facilities” or an "apportionment" of storage water. Govt.

Except’s & Br. 17-18 (Nov. 1994): Neb. Except’s & Br. 9-

15 (Nov. 22, 1994).

2. While it is true that an ingredient of Wyoming’s

Fourth Cross-Claim is that, in contravention of the

controlling laws and contracts, the Bureau is distributing

storage water to Warren Act contractors on an equal basis

with North Platte Project entrymen, a more fundamental

ingredient of the claim is that the Bureau is capturing water

in the reservoirs that is Properly natural flow and treating it

as storage water, in violation of the rights of all who have

entitlements to the natural flow, the subject of the

apportionment.

Focusing exclusively on the former ingredient of the

claim and wholly ignoring the latter, the Government

Suggests that the claim ought not be allowed because

"Wyoming is not the appropriate party to challenge the

federal government's allocation of Storage water.” Govt.

10

Except’s & Br. 24. Averring that Wyoming has no direct

interest in storage water apart from the interests of her

citizens who have rights thereto, the Government suggests

that Wyoming’s claim is "concerned solely with the Bureau

of Reclamation’s method of ‘allocat[ing] storage water’

among Nebraska and Wyoming water users." /d. at 24-25.

But Wyoming’s claim is not concerned "solely" or,

indeed, at all, with the Bureau’s method of allocating storage

water "among Nebraska and Wyoming water users." It is

concerned primarily with the Bureau’s capturing and treating

as storage water natural flow that ought to be passed through

the federal reservoirs, to the injury of all who have rights in

such flow, the substance of the apportionment. Secondarily,

the claim is concerned with the Bureau’s distributing storage

water to Warren Act contractors on an equal basis with

North Platte Project entrymen, when the law is clear that

only storage excess to the requirements of the latter can be

made available to the former. 43 U.S.C. § 523; see Third

Int. Rpt. 67-70.

The decree was formulated on the assumption that the

government would operate the North Platte Project and store

and deliver water in accordance with the laws and contracts

applicable thereto. See Third Int. Rpt. 70. To the extent

that the project is not operated in accordance with this

assumption, the apportionment provided for by the decree is

disturbed.

The Government’s suggestions _ that allowing

Wyoming to prosecute its Fourth Cross-Claim will

complicate the proceedings and may necessitate allowance of

interventions by parties to the "water contracts at issue,”

Govt. Except’s & Br. 25-26, are gossamer. Assuming, as

11

Basin does, that the Government will be truthful and

forthcoming about the Bureau’s administration of the North

Platte reservoirs, the issue of whether the Bureau is

operating them in accordance with law will be one of law --

and not a particularly complex one at that. And, where the

conduct of the government is challenged as in violation of

law, the notion that third parties who are incidental

beneficiaries of the government’s malfeasance need be let in

as parties before the government’s wrongdoing can be

remedied, has the virtue of novelty, but none other.

3. The gravamen of Wyoming’s Fourth Cross-Claim

is that the Bureau of Reclamation’s operation of the North

Platte reservoirs in contravention of the law of the river is

disturbing the apportionment, not, as Nebraska and the

Government mischaracterize it, that the Bureau’s misconduct

is violating particular water users’ rights. Govt. Except’s &

Br. 28; Neb. Except’s & Br. 19.

It is apparent from the Goshen Irrigation District’s

complaint in the federal district court, Govt. Except’s & Br.

Appendix, that the claim Goshen is Prosecuting against the

Bureau of Reclamation there does not touch or concern the

apportionment here in any way. Goshen’s claim is simply

that the Bureau is not Providing it with the quantity of water

to which it is entitled under its contract. It is just not true

that the claims Goshen is pursuing in the district court "are

essentially identical to those Wyoming presses here." Govt.

Except’s & Br. 28. Wyoming’s claims are fundamentally

different and much broader. Wyoming seeks to require the

Bureau to abide by the laws and contracts governing the

administration of the North Platte reservoirs because the

12

assumption that it would do so is built into the North Platte

decree and the apportionment is skewed if it does not.

After this case was commenced by Nebraska in 1934,

the Court held that the Secretary of the Interior was not a

necessary party because, as an appropriator of water under

the reclamation laws, he is no different from any other

appropriator under state law. 395 U.S. 40 (1935). In 1938,

the United States sought and was granted leave to intervene.

In its motion, the government contended that, for the

protection of its interests in the irrigation works it had

constructed at great cost in the North Platte basin, it should

not be required to rely on any state, even if, legally, its

position is no different from that of a private appropriator.

While asserting here that the proper forum for

challenging the propriety of the Bureau’s administration of

the North Platte reservoirs is the district court -- where, it

asserts, the Goshen Irrigation District is currently so doing --

the Government there is seeking to dismiss Goshen’s suit on

the ground of sovereign immunity. Third Int. Rpt. 71,

n.173; Govt. Except’s & Br. 29, n.16. And, while the

Government all but concedes here that its challenge to the

jurisdiction of the district court is not well founded, it does

not indicate that it intends to withdraw its motion to dismiss.

Id. On the contrary, it ventures that "a meritorious

sovereign immunity defense would bar suit in this Court as

well as in the district court." /d.

This, of course, is not true. Having voluntarily come

into this case, after the Court had determined it was not a

necessary party, for the express purpose of litigating its

rights in relation to its irrigation works on the North Platte,

the government waived any immunity it may otherwise have

13

had from examination in this case of the propriety of its

administration of those works.

This case is preeminently the proper and appropriate

forum in which to hear and determine Wyoming’s claims

that the government is interfering with the apportionment by

Operating the North Platte reservoirs in violation of the laws

and contracts governing their use.

14

CONCLUSION

For the foregoing reasons, the Court should adopt the

Special Master’s recommendations that Nebraska be allowed

to amend her complaint to pursue her proposed Count III and

that Wyoming be allowed to amend her pleadings to pursue

her proposed Fourth Cross-Claim.

Respectfully submitted,

Edward Weinberg

Counsel of Record

Richmond F. Allan

DUNCAN, WEINBERG,

MILLER & PEMBROKE, PC

1615 M Street, N.W.

Suite 800

Washington, DC 20036

(202) 467-6370

Michael J. Hinman

General Counsel

Claire Olson

Assistant General Counsel

Basin Electric Power

Cooperative

1717 E. Interstate Ave.

Bismarck, ND 58501

(701) 223-0441

December 30, 1994