Appendix Exhibit — Kansas v. Colorado
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App. 29
IN THE SUPREME COURT OF THE UNITED STATES
No. 105, Original
October Term 1985
STATE OF KANSAS,
Plaintiff,
Vv. (Filed Nov. 27, 1989)
STATE OF COLORADO,
Defendant,
and
UNITED STATES OF AMERICA,
Defendant-Intervenor.
COLORADO’S ANSWER TO THE FIRST AMENDED
COMPLAINT AND COUNTERCLAIM
ANSWER
Defendant, the State of Colorado, for its answer to
the First Amended Complaint filed in the above-cap-
tioned action by Plaintiff, the State of Kansas, states:
1. Colorado admits the Court has jurisdiction under
the allegations in paragraph 1 of the First Amended
Complaint. Colorado denies that this is an appropriate
case for the Court to exercise such jurisdiction: because
Kansas has failed to exhaust its administrative remedies
under Article VII] of the Arkansas River Compact.
2. Colorado admits the allegations in paragraph 2 of
the First Amended Complaint.
App. 30
3. Colorado admits the allegations in paragraph3 of
the First Amended Complaint.
4. Colorado admits that one of two major purposes
of the Arkansas River Compact is quoted in paragraph 4
of the First Amended Complaint. Colorado denies the
allegations of paragraph 4 insofar as they assert that the
purpose set forth in Article I-B of the Compact is the
“principal” purpose of the Arkansas River Compact.
5. Colorado admits that a portion of Article IV-D of
the Compact is quoted in paragraph 5 of the First
Amended Complaint. Colorado denies the allegations of
paragraph 5 insofar as they o:sert Kansas’ interpretation
of Article IV-D.
6. Colorado admits that a portion of the first sen-
tence of Article V-F of the Arkansas River Compact is
quoted in paragraph 6 of the First Amended Complaint.
The first sentence of Article V-F in its entirety reads as
follows:
In the event the Administration finds that
within a period of fourteen (14) days the water
in the conservation pool will be or is liable to be
exhausted, the Administration shall forthwith
notify the State Engineer of Colorado, or his
duly authorized representative, that commenc-
ing upon a day certain within said fourteen (14)
day period, unless a change of conditions justi-
fies cancellation or modification of such notice,
Colorado shall administer the decreed rights of
water users in Colorado Water District 67 as
against each other and as against all rights now
or hereafter decreed to water users diverting
upstream from Jolin Martin Dam on the basis of
relative priorities in the same manner in which
App. 31
their respective priority rights were adminis-
tered by Colorado before John Martin Reservoir
began to operate and as though John Martin
Dam had not been constructed.
Colorado affirmatively alleges that the Arkansas River
Compact Administration by resolution in 1980 adopted
an operating plan for john Martin Reservoir which mod-
ifies the method by which the Administration finds that
the water in the conservation pool is exhausted for the
purposes of Article V-F.
7. Colorado denies the allegations in paragraph 7 of
the First Amended Complaint.
8. Colorado denies the allegations in paragraph 8 of
the First Amended Complaint.
9. Colorado denies the allegations in paragraph 9 of
the First Amended Complaint.
10. Colorado admits that for more than twenty
years its agencies or officials have investigated ground
water appropriations in the Arkansas River Basin in Col-
orado. Colorado denies the remaining allegations of para-
graph 10 of the First Amended Complaint.
11. Colorado denies the allegations in paragraph 11
of the First Amended Complaint.
i2. Colorado admits that the Arkansas River Com-
pact Administration was in the process of conducting an
investigation of alleged Compact violations pursuant to
Article VIIL-H of the Arkansas River Compact at the time
Kansas commenced this proceeding on December 16,
1985, and that Colorado refused to enjoin all post-com-
pact ground water appropriations in Colorado during the
App. 32
pendency of the investigation. Colorado admits that the
Colorado representatives to the Arkansas River Compact
Administration rejected requests by the Kansas represen-
tatives to investigate the consequences of possible future
increases in the consumption of Colorado’s “transmoun-
tain” return flows. Colorado denies the remaining allega-
tions of paragraph 12 of the First Amended Complaint.
13. Colorado denies the allegations in paragraph 13
of the First Amended Complaint.
14. Colorado denies the allegations in paragraph 14
of the First Amended Complaint.
15. Colorado denies the allegations in paragraph 15
of the First Amended Complaint.
16. Colorado denies the allegations in paragraph 16
of the First Amended Complaint.
17. Colorado denies the allegations ir paragraph 17
of the First Amended Complaint.
AFFIRMATIVE DEFENSES
1. Kansas failed to exhaust its administrative
remedies under Article VIII of the Arkansas River Com-
pact.
2. Kansas’ claims against Colorado are barred by
accord and satisfaction, failure to mitigate damages,
laches, estoppel, waiver, statute of limitations, or the
doctrine of unclean hands.
3. To the extent post-compact developments were
beyond the control of the State of Colorado, Colorado is
not liable for those acts.
App. 33
4. Article V-E(5) of the Arkansas River Compact
provides there shall be no allowance or accumulation of
credits or debits for or against either state.
5. With regard to Kansas’ claim that Colorado and
its water users have materially depleted the usable and
available stateline flows of the Arkansas River since the
adoption of the Compact to the injury of water users in
Kansas. under the Compact, Colorado asserts that irriga-
tion in the Arkansas River basin in Colorado has declined
since the adoption of the Compact and that acreage under
irrigation in western Kansas has increased at least five-
fold in the same period, from approximately 65,000 acres
in 1948 to 350,000 acres in 1980. Kansas seeks to have this
Court rewrite the Arkansas River Compact to impose a
new stateline delivery obligation on Colorado so as to
maintain a post-compact well economy in western Kan-
sas, all at the expense of Colorado water users, contrary
to the express terms of the Compact.
6. Waters brought into the Arkansas River basin
from other river basins are not apportioned to Kansas
under the Arkansas River Compact and Kansas has no
claim or right to such waters.
7. In 1980, the Arkansas River Compact Administra-
tion approved an operating plan for John Martin Reser-
voir pursuant to which water stored in the conservation
pool of the reservoir is transferred into separate storage
accounts for Kansas and ditches in Colorado Water Dis-
trict 67 at agreed upon rates and is apportioned into the
accounts in agreed upon percentages. Based upon a series
of agreements among Colorado users, after water stored
App. 34
in the conservation pool is fully transferred to the sepa-
rate storage accounts, but not necessarily released from
the reservoir, Colorado reverts to administration of
decreed priorities and the decreed rights of water users in
Colorado Water District 67 are administered as against
rights decreed to water users diverting upstream from
John Martin Dam on the basis of relative priorities in the
same manner as though John Martin Dam had not been
constructed. -The Colorado representatives approved the
operating plan in 1980 and have allowed the operating
plan to remain in effect from year-to-year thereafter, to
the substantial benefit of Kansas water users, based upon
the aforesaid agreements among Colorado: water users to
determine when a “call” by ditches in Colorado Water
District 67 will be enforced above John Martin Reservoir.
Those agreements were in turn based on an agreement to
permit storage of historical direct-flow winter diversions
upstream from John Martin Reservoir. Kansas has
accepted the benefits of the 1980 operating plan and
agreed to its terms with knowledge of the agreements
among Colorado water users and with knowledge that
the 1980 operating plan would change the regimen of the
Arkansas River. Therefore, by having accepted the bene-
fits of the 1980 operating plan, Kansas is barred from
asserting that any reregulation of the native waters of the
Arkansas River be approved by the Compact Administra-
tion based upon the Administration’s Resolution of July
24, 1951.
8. With regard to Kansas’ allegation that Colorado,
through its Compact “Commissioner”, has rejected and
App. 35
continues to reject Kansas’ requests to investigate Colo-
rado’s “unilateral rejection” of the Arkansas River Com-
pact Administration’s Resolution of July 24, 1951,
Colorado denies that the Resolution has any binding
effect on Colorado. In the alternative, the Resolution was
amended by the Administration on January 4, 1982. Fur-
the:, Kansas failed to raise an objection to the winter
storage program in Pueblo Reservoir for six years after it
began operation in 1975 with the full knowledge of Kan-
sas and the Administration.
COUNTERCLAIM
Defendant, the State of Colorado, by its Attorney
General, asserts the following counterclaim against Plain-
tiff, the State of Kansas:
1. The Court has jurisdiction of this counterclaim
under Article III, Section 2, Clause 2 of the Constitution
of the United States, and Paragraph (a), Subsection (1),
Section 1251, Title 28 of the United States Code.
2. The Arkansas River is an interstate stream which
rises in the Rocky Mountains near Leadville, Colorado,
then flows southeasterly to Salida, Colorado, then east
through Canon City tou Pueblo, Colorado, then across the
plains of eastern Colorado into the State of Kansas.
3. In order to settle existing disputes and to remove
causes of future controversy concerning the waters of the
Arkansas River and to equitably divide and apportion
between the States of Colorado and Kansas the waters of the
Arkansas River, as well as the benefits arising from the
construction, operation, and maintenance of John Martin
Reservoir for water conservation purposes, the States of
App. 36
Colorado and Kansas ratified the Arkansas River Compact,
which Compact was approved by the United States Congress
by Act of May 31, 1949, 63 Stat. 145.
4. Article V-E(2) of the Arkansas River Compact
provides: “Water released upon concurrent or separate
demands shall be applied promptly to beneficial use
unless storage thereof downstream [from John Martin
Reservoir] is authorized by the [Arkansas River Compact]
Administration.”
5. On information and belief, the state officials
charged with administration of water rights in Kansas
have allowed water released from John Martin Reservoir
upon demand by Kansas under Article V of the Arkansas
River Compact to be stored downstream in Lake McKin-
ney in Kansas rather than being applied promptly to
beneficial use, in violation of the provisions of Article
V-F(2) of the Compact.
6. Subsequent to the approval of the Arkansas River
Compact by the United States Congress in 1949, state
officials charged with the administration of water rights
in Kansas have allowed the construction of wells and
have permitted ground water appropriations in Kansas
that have materially depleted the usable quantity or
availability for use to the surface water users in Kansas
under the Compact. Those depletions caused Kansas to
make additional demands for releases of water stored in
John Martin Reservoir pursuant to the Compact to the
detriment of water users in Colorado.
7. irreparable injury to the State of Colorado and
water users in Colorado under the Compact has been
caused by the acts and conduct of the State of Kansas, its
officers, and citizens in permitting the use of the waters
App. 37
of the Arkansas River in violation of the terms of the
Compact.
WHEREFORE, having fully answered and having
asserted its affirmative defenses and counterclaim, Colo-
rado prays that the Court grant judgment for Colorado
and against Kansas on the claims of Kansas, that the
Court issue its decree compelling the State of Kansas, its
officers, and citizens to comply with the provisions of the
Arkansas River Compact, that Colorado have and recover
its reasonable costs, and for such other and further relief
as the Court may deem proper under the circumstances.
‘DUANE WOODARD
Attorney General of Colorado
CHARLES B. HOWE
Chief Deputy Attorney General
RICHARD H. FORMAN
Solicitor General
HILL & ROBBINS, P.C.
/s/ David W. Robbins
DAVID W. ROBBINS
Special Assistant Attorney
~ General
Counsel of Record
DENNIS M. MONTGOMERY
Special Assistant Attorney
General
1441 — 18th Street, #100
Denver, Colorado 80202
Telephone: 303-296-8100
Attorneys for Defendant
State of Colorado
App. 38
CERTIFICATE OF SERVICE
I, David W. Robbins, hereby certify that | am a mem-
ber of the Bar of this Court and Counsel of Record for the
State of Colorado and that on the 22nd day of November,
1989, | caused a true and correct copy of Colorado's
Answer and Counterclaim to Kansas’ First Amended
Complaint to be placed in the United States mail, first
class postage prepaid, addressed as follows:
The Honorable Arthur L. Littleworth
(original and one copy)
Special Master
Best, Best & Krieger
3750 University Avenue
Riverside, California 92502
Richard A. Simms, Esq.
Simms & Stein
First Northern Plaza, 3rd Fir.
121 Sandoval Street
P.O. Box 280
Santa Fe, New Mexico 87504
Patricia Weiss, Esq.
U.S. Department of Justice
Lands & Natural Resources Division
General Litigation Section
P.O, Box 663
Washington, D.C. 20044-0663
Andrew F. Walch, Esq.
U.S. Department of Justice
Lands & Natural Resources Division
1961 Stout Street, #690
Drawer 3607
Denver, Colorado 80294
App. 39
/s/ David W. Robbins
DAVID W. ROBBINS
Special Assistant Attorney
General
Counsel of Record
HILL & ROBBINS, P.C.
1441 — 18th Street, #100
Denver, Colorado 80202
Telephone: 303-296-8100
Attorneys for Defendant
State of Colorado
APPENDIX - Exhibit 4
Answer of the United States to the First Amended
Complaint, filed January 15, 1990
App. 40
No. 105 Original
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1989
BEFORE THE HONORABLE
ARTHUR L, LITTLEWORTH,
SPECIAL MASTER
STATE OF KANSAS, PLAINTIFF
v.
STATE OF COLORADO, ET AL.
ANSWER OF THE UNITED STATES
TO THE FIRST AMENDED COMPLAINT
(Filed Jan. 15, 1990)
~ —
=- ~
KENNETH W. STARR
Solicitor General
RICHARD B. STEWART
Assistant Attorney General
PATRICIA -L. WEISS
ANDREW F. WALCH
Attorneys
Department of Justice
Washington, D.C. 20530
(202) 633-2217
App. 41
———
—
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 1989
BEFORE THE HONORABLE
ARTHUR L, LITTLEWORTH,
SPECIAL MASTER
No. 105 Original
STATE OF KANSAS, PLAINTIFF
v.
STATE OF COLORADO, ET AL.
ANSWER OF THE UNITED STATES
TO THE FIRST AMENDED COMPLAINT
The United States, in response to the First Amended
Complaint of the State of Kansas, states:
1. The averments of paragraph 1 are conclusions of
law to which no response is required.
2-3. The averments of paragraphs 2 and 3 are admit-
ted.
4. The United States admits that one of the purposes
of the Arkansas River Compact is as quoted in paragraph
4 of the complaint, and avers that the Compact itself is
the best evidence of its contents. Act of May 31, 1949, 63
App. 42
Stat. 145. The remaining averment of paragraph 4 is a
conclusion of law to which no response is required.
5. The United States admits that the portion of Art.
[V(D) of the Arkansas River Compact is as quoted in
paragraph 5 of the complaint and avers that the Compact
itself is the best evidence of its contents. The remaining
averments of paragraph 5 are conclusions of law to which
no response is required.
6. The United States admits that the portion of Arti-
cle V(F) of the Arkansas River Compact is as quoted in
paragraph 6 of the complaint and avers that the Compact
itself is the best evidence of its contents. The United
States avers that the Arkansas River Compact Adminis-
tration by resolution in 1980 adopted an operating plan
for John Martin Reservoir which modifies the method by
which the Administration finds that the water in the
conservation pool is exhausted for the purposes of Article
V(F) of the Compact.
7-11. The United States is without knowledge or
information sufficient to form a belief as to the truth of
the averments of paragraph 7-11 of the complaint.
12. The United States admits the averments of the
first sentence of paragraph 12 and that the State of Colo-
rado, through its Compact Commissioner, has at various
times declined to approve investigations of the impact on
the Arkansas River of certain of the matters itemized in
paragraph 12. The United States is without knowledge or
information sufficient to form a belief as to the truth of
the remaining averments of paragraph 12.
App. 43
13-17. The United States is without knowledge or
information sufficient to form a belief as to the truth of
the avermenis of paragraphs 13-17 of the complaint.
AFFIRMATIVE DEFENSES
1. The Trinidad Project is a multi-purpose project
constructed and operated by the United States Army
Corps of Engineers in accordance with federal laws and
operating principles developed by the Bureau of Recla-
mation and approved by the States of Colorado and Kan-
sas. Pursuant to a request by the Arkansas River Compact
Administration, the United States Bureau of Reclamation
has undertaken a review of the Trinidad Project operating
principles and has issued a fine! report recommending
certain modifications of the operating principles. Adop-
tion of the Bureau of Reclamation’s report by the
Arkansas River Compact Administration and implemen-
tation of the recommendations contained in the report to
insure that the waters of the Arkansas River shall not be
materially depleted in usable quantity or availability for
use by the water users in Colorado and Kansas will moot
plaintiff’s claims with respect to the Trinidad Project.
2. Pueblo Dam and Reservoir are features of the
Fryingpan-Arkansas Project, a multipurpose project
authorized by Congress in 1962 in “substantial accor-
dance with the engineering plans” set forth in House
Document 83-187. Act of August 16, 1962, 76 Stat. 389, as
amended by Act of October 27, 1974, 88 Stat. 1486, 1497,
and Act of November 3, 1978, 92 Stat. 2493. The engineer-
ing plans set forth in H.R. Doc. No. 83-187 include a
winter storage program at Pueblo Reservoir. Accordingly,
App. 44
with respect to any claim that the winter storage program at
Pueblo Reservoir should have been submitted to the
Arkansas River Compact Administration for approval, the
complaint fails to state a claim upon which relief may be
granted, for the winter storage program is a Congressionally
authorized feature of the Fryingpan-Arkansas Project.
3. The winter storage program has been in place at
Pueblo Reservoir since 1976, with the knowledge of the
Arkansas River Compact Administration, and the repay-
ment contract for the Project between the United States
and the Southeastern Colorado Water Conservancy Dis-
trict contains specific provisions for the storage of winter
water. Accordingly, plaintiff’s claim that the winter stor-
age program should have been submitted to the Arkansas
River Compact Commission for approval is barred by the
equitable doctrine of laches.
WHEREFORE, the United States respectfully prays
that the Court issue an order protecting the rights of the
United States in the Trinidad Project and the Fryingpan-
Arkansas Project, and for such other and further relief as
the Court may deem just and proper.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
RICHARD B. STEWART
Assistant Attorney General
PATRICIA L. WEISS
ANDREW F. WALCH
Attorneys
JANUARY i990
App. 45
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1989
STATE OF KANSAS
Plaintiff,
v.
STATE OF COLORADO
Defendant, vs.
and
UNITED STATES OF AMERICA
Defendant-Intervenor
No. 105, Original
ll ee ee a
CERTIFICATE OF SERVICE
iled jan. 15,
It is hereby certified that all parties required to be
served have been served copies of the ANSWER OF THE
UNITED STATES TO THE FIRST AMENDED COM-
PLAINT, by first-class mail, postage-prepaid, this 12th
day of January, 1990.
[SEE ATTACHED SERVICE LIST]
/s/ Kenneth W. Starr
KENNETH W. STARR
SOLI GENERAL
Hion. Robert T. Stephan
Attorney General of Kansas
John W. Campbell
Deputy Attorney General
Leland E. Rolfs
Assistant Attorney General
2nd Floor, Kansas Judicial Center
Topeka, KS 66612
App. 46
Richard A. Simms
Special Assistant Attorney General
Jay F. Stein
Special Assistant Attorney General
Simms & Stein, P.A.
First Northern Plaza
121 Sandoval St.
P.O. Box 280
Santa Fe, New Mexico 87504
Hon. Duane Woodard
Attorney General of Colorado
Charles B. Howe
Chief Deputy Attorney General
Richard H. Forman
Solicitor General
David W. Robbins
Special Assistant Attorney Gencral
Dennis M. Montgomery
Special Assistant Attorney General
Hill & Robbins
1441 18th St., Ste. 100
Denver, CO 80202
The Honorable Arthur L. Littleworth
Special Master
United States Supreme Court
Best, Best & Krieger
3750 University Ave.
Riverside, CA 92502
The Honorable Roy Romer
Governor of Colorado
State Capitol 136
Denver, CO 80203
APPENDIX — Exhibit 5
Decision of Special Master on Colorado Motion to Stay,
filed October 21, 1988 at
IN THE SUPREME COURT OF THE UNITED STATES
STATE OF KANSAS, )
)
Petitioner, ’ No. 105, Original
v. } October Term,
STATE OF COLORADO, . 1985
Respondent. )
)
DECISION OF SPECIAL MASTER
ON COLORADO MOTION TO STAY
(Filed Oct. 21, -1988)
Colorado filed a Motion to Stay Based on Kansas’
Failure to Exhaust Its Administrative Remedies. The
Motion dealt with two of the several issues in the Com-
plaint: i.e., post-Compact well development in Colorado,
and the operation of Trinidad Reservoir. The Motion was
fully briefed, and oral argument was held in the Federal
Court of Appeal in Pasadena, California on September 78,
1988. David W. Robbins, Esq. argued the Motion for
Colorado, and Richard A. Simms responded for Kansas.
Kansas acknowledges that it has an obligation, before
seeking judicial relief, to exhaust its administrative
remedies under the Arkansas River Compact. The Com-
pact was ratified by the respective legislatures of each
state, and approved by Congress in 1949. (Act of May 31,
1949, 63 Stat. 145) The Compact Administration is similar
to that discussed in State of Texas us. State of New Mexico
(1983) 462 U.S. 554, 77 L.Ed.2d 1; 103 S.Ct. 2558. The
Administration consists of three representatives from
each state, but cach state “. .. shall have but one vote in
App. 48
the Administration and every decision, authorization or
other action shall require unanimous vote.” (Article VIII-
D) While a representative of the United States chairs the
Administration, he has no vote. (Article VIII-C)
Only two specific remedies for alleged Compact vio-
lations are provided for in the Compact. It provides that
violations shall be “promptly investigated” by the
Administration, although the procedure for the investiga-
tion and any remedies still require agreement between
the states. (Article VIII-H) In addition, disputes “may,”
by unanimous vote, be referred for arbitration, (Article
ViII-D) Both parties agree that the exhaustion test under
the circumstances involved here is whether a state has
made a “reasonable effort” to proceed first through the
Compact Administration. Colorado also acknowledges
that it is proper to seek judicial relief if an investigation
by the Administration reaches an impasse. (Colo. Br., p.
21) Colorado, as part of its Motion, filed four large vol-
umes of Appendix documents, going back several years,
which appear to include the Compact Administration
record with respect to post-Compact well development
and the operations of Trinidad Reservoir. Both parties
relied upon this record in their briefs and arguments.
Kansas argues first that the exhaustion issue was
actually decided by the United States Supreme Court
when it authorized the filing of Kansas’ Complaint. Kan-
sas moved to file its Complaint on December 16, 1985,
alleging that the State of Colorado and its water users
had materially depleted the usable and available stateline
flows of the Arkansas River in violation of the Compact.
App. 49
Kansas further alleged that Colorado had blocked Kan-
sas’ efforts to have the Compact Administration investi-
gate its complaints.
On February 18, 1986, Colorado filed a brief in oppo-
sition to Kansas’ Motion for Leave to File Complaint. The
thrust of that brief was that Kansas had not made a
“reasonable effort” to resolve its complaints through the
Compact Administration, and that absent such an effort,
the Supreme Court should decline to hear the matter. (p.
1) Colorado stated that the question presented was
whether Kansas had met its burden “. . . to demonstrate
that a pending investigation of the Arkansas River Com-
pact Administration is not an adequate means to vindi-
cate its allegations of Compact violations.” (p. 3) In its
brief, citing certain documentary evidence, Colorado
alleged that there was a “pending investigation” by the
Compact Administration, that the Administration was
not deadlocked or unable to act, and that Colorado had
not refused to investigate Kansas’ allegations. (pp. 8-9)
However, Colorado did not file with the Supreme Court
the same voluminous administrative record used to sup-
port its Motion before the Special Master.
In response to Colorado’s brief, Kansas on March 3,
1986 filed a new motion in the alternative, either for leave
to file its complaint, or to compel an investigation by the
Compact Administration pursuant to Article VIII-H. In its
supporting brief, Kansas outlined in further detail its
view of efforts taken within the Compact Administration,
and the alleged frustration of the administrative pro-
cedure. Thus, the question of whether the administrative
process had been properly exhausted was clearly an issue
in the pleadings before the Supreme Court.
App. 50
The Supreme Court’s Order stated simply:
“The motion for leave to file a bill of complaint
is granted. Defendant is allowed sixty days
within which to file an answer.”
Kansas contends that the Court made a choice between
the alternatives presented in its Motion, and thereby dis-
posed of the exhaustion issue. Colorado, on the other
hand, argues that the Court’s silence is not a basis for
inferring intent, and had the Court intended to decide the
exhaustion issue, it would have ordered argument and
decided the issue explicitly.
The requirement of a motion for leave to file a com-
plaint and the requirement of a brief in opposition do
enable the Supreme Court to dispose of matters at a
preliminary stage. (Ohio v. Kentucky (1973) 410 U.S. 641,
644) As the Court has explicitly recognized, its objective
in Original cases is to have the parties, as promptly as
possible, reach and argue the merits of the controversy
presents. (fd.) To this end, the Court has strongly sug-
gested that granting an original plaintiff's motion for
leave to file complaint amounts to a rejection of argu-
ments that the case should be dismissed, (Maryland, et al.
v. State of Louisiana (1981) 451 U.S. 725, 740, fn. 16) Fur-
ther, in the analogous case of Texas v, New Mexico (1983)
462 U.S. 554, the Court intimated that “fundamental
structural considerations,” such as an interstate compact
that accords each signatory state the power to veto
authoritative commission action, may abbreviate inquiry
into the question of whether an available remedy exists at
the administrative level. (462 U.S. 54, 568-570)
App. 51
It is not necessary, however, to decide Colorado’s
present Motion on the basis of the Supreme Court order.
The Special Master is convinced that Kansas did make a
reasonable effort to pursue its complaints through the
Compact Administration, but because of the inherent lim-
itations in that procedure, the parties reached an impasse.
Indeed, the briefs and oral argument on the Motion dealt
primarily with the substance of the efforts before and by
the Compact Administration, and not upon the Supreme
Court order.
First, with respect to post-Compact well develop-
ment, Kansas cites numerous law reviews and other sec-
ondary sources to show that unregulated well
development, and its impact on surface water users, has
been a problem for many years. (Kan. Br., pp. 30-31) By
1983 Kansas began its own study of the decline in flows
of the Arkansas River, and the development of upstream
wells in Colorado as a possible cause. Completed in 1984,
that study concluded that for the period 1974 to 1981 a
conservative estimate of the stateline depletions due to
post-Compact wells in Colorado was 40,000 to 50,000
acre-feet per year. (Appendix Exh. 21, p, iii) Colorado and
the Compact Administration were aware of that study.
Nonetheless, Colorado contends that Kansas did not for-
‘mally seek a Compact investigation of this issue until
February of 1985. (Colo. Closing Br., pp. 21, 27) Assuming
that to be true for purposes of this Motion, there is no
question that on March 28, 1985 the Compact Administra-
tion directed a formal investigation of the depletion of
stateline flows. A number of potential causes were to be
investigated, including specifically “well development of
the waters of the Arkansas River in Colorado,” as well as
App. 52
“the operation of the Trinidad Dam and Reservoir pro-
ject.” (Appendix Exh. 28, attached Exh. L)
The Compact Administration Resolution directed
that the investigation be undertaken by a committee con-
sisting of the Director of the Colorado Water Conserva-
tion Board and the Chief Engineer of Kansas, or their
respective designees. Thus, the same unanimity require-
ments that limited the Administration itself were carried
over into the structure of this investigation. Finally, the
March 28 Resolution called for the investigation to be
completed by the next annual meeting of the Compact
Administration on December 10, 1985.
The engineers for the two states met promptly, but
were unable initially to agree upon a scope of work for
the investigation. (Appendix Exh, 29) At their next meet-
ing they agreed to defer consideration of a complete
scope of work, and defined instead a preliminary scope
that included the compilation of certain data and con-
struction of a series of mass diagrams. (Appendix Exh. 30,
p. 2) The mass diagrams were presented at their meeting
on July 12, 1985, but again the two engineers were unable
to agree “about what the diagrams did or did not show.”
(Appendix Exh. 32, p. 4) Finally they decided to prepare
and exchange separate reports analyzing the mass curves,
and recommended that the Compact Administration hold
a special meeting on October 8, 1985 to receive such
report as the committee might be ready to make. (/bid,)
The committee met once again on September 17, "... but
was unable to agree on the conclusions to be drawn from
the single and double mass diagrams and on what further
investigation, if any, should be undertaken.” (Appendix
App. 53
Exh. 34, pp. 4) J. William McDonald, the Colorado repre-
sentative on the committee, reported to the Compact
Administration that the committee had “reached an
impasse” at its September 17 meeting. (Appendix Exh. 36,
p. 2)
Against this background, the Compact Administra-
tion met on October 8, 1985. The Colorado representative
acknowledged that there had been a “substantial decline
in usable stateline flows starting in 1974.” (Appendix
Exh. 36, p. 4) However, he did not see post-Compact well
development as the cause. He stated:
“It seems to me that all the engineering shows
thus far is that there has been a decline in usable
stateline flows starting in 1974, which corre-
sponds it appears to me, to a decline in tributary
inflow rather than to well development or any
other beneficial development in the Arkansas
River basin in Colorado.” (Appendix Exh. 37, p.
32)
Colorado therefore took the position that the investi-
gation should first examine neither the well issue nor the
operations of Trinidad Reservoir, but (1) reduced diver-
sions by ditches in Colorado Water District 67; (2) the
operating plan for John Martin Reservoir; (3) decreased
plains precipitation; and (4) soil conservation measures.
(Appendix Exh. 37, p. 35)
With respect to well development, the Colorado
representative stated:
“In that context I do not believe it is appropriate
to launch an investigation of well pumping in
Colorado as David (David Pope, Kansas State
Engineer) has urged in his second report until
App. 54
we have determined whether the declines in
usable stateline flows might be the result of
other causes, which I| believe to be more likely
than the causes which David has addressed. .. .
And it has been my position therefore that the
investigation should indeed continue, but it
should start first with those factors which at this
point in time appear to be most likely explana-
tions for the decline in usable stateline flows.”
(Appendix Exh. 37, pp. 31-32)
Kansas, on the other hand, urged that the investiga-
tion proceed to examine ten possible causes for the
decline in stateline flows, including all those suggested
by Colorado, and including well development and the
operations of Trinidad Reservoir. (Appendix Exh. 37, pp.
35-36) The Compact Administration finally adopted a
Resolution that the committee continue its investigation
only of those matters mutually agreed upon, that is, the
four items suggested by Colorado. (Appendix Exh. 37,
pp. 37-38)
Colorado now argues that it did not “rule out” a
investigation of the impact of post-Compact wells on
stateline flows, but neither did it commit that Kansas’
complaints would ever be investigated, (Colo. Closing
Br., p. 28; Appendix Exh. 37, p, 33) The facts are that in
March the Compact Administration directed an investiga-
tion of post-Compact well development and the opera-
tions of Trinidad Reservoir, as possible causes among
others for the decline in stateline flows. The investigation
was to have been completed within the year, Yet by
October, at Colorado’s insistence, those two matters had
been dropped from the committee’s investigation agenda.
Kansas had a right to have its complaints “promptly
App. 55
investigated” and not sidetracked by Colorado's belief
that other factors might have more likely caused the
decline in stateline flows. (Article VIII-H)
The well issue came up again at the Compact Admin-
istration’s annual meeting on December 10, 1985. Kansas
asked Colorado directly whether it would be ”. . . willing
to immediately begin a prompt and expeditious investi-
gation of post-Compact alluvial well development in the
Arkansas River Basin in Colorado. (Appendix Exh. 39, p.
107) Kansas never received an affirmative reply.
At that meeting, Kansas also presented a report from
the nationally known consulting firm of S. S. Papa-
dopulos & Associates. The report concluded that the
investigation methodology proposed by Colorado,
namely, focusing first on separate factors like climatic
conditions, would not “produce meaningful conclusions
regarding the alleged violations”; that the various possi-
ble factors must be examined contemporaneously,
“regardless of preconceived notions as to the relative
effects of any one factor”; and that studies had demon-
strated that groundwater development and reservoir reg-
ulation “impact significantly the streamflow conditions
within the river system,” and “must be included” in
order properly to investigate Kansas’ allegation. (Appen-
dix Exh. 39, Exh. E, pp. 5-6)
Kansas filed its motion with the Supreme Court six
days later on December 16, 1985, having previously
announced after the October 8 meeting that the States
were at an impasse, and that such an action was being
prepared. (Appendix Exh. 38),
App. 56
Turning now to the operations of Trinidad Reservoir,
Colorado concedes that Kansas first complained about
this issue in 1980. (Colo. Br. pp. 9, 24) Throuzh an admin-
istrative practice known as “rollover,” Kansas alleged
that additional water was stored in Trinidad Reservoir, in
violation of the Compact. The Administration found that
the amount involved for 1979 was 18,290 acre-feet.
(Appendix Exh. 13) At a Compact Administration meet-
ing in 1980, Kansas sought to have the Administration
recommend that the State Engineer of Colorado order the
release of such stored water, but Colorado voted “no.”
(Appendix Exh. 13, Colo. Br. p. 9) The rollover practice
was continued, and Kansas contends that by 1982 some
58,514 acre-feet of water had been illegally stored. (Kan-
sas’ Response, p. 27) Admittedly, Kansas sought arbitra-
tion of this issue in 1982, in 1983 and again in 1985.
(Appendix Exh. 16, pp. 78, 87; Exh. 28, pp. 168-170)
Colorado declined, due to the “failure of the State of
Kansas to identify the underlying factual basis for its
claims.” (Appendix Exh. 16, pp. 88, 85)
In 1983, therefore, Kansas undertook its own study,
hiring Simons, Li & Associates, Inc. That study was com-
pleted in February, 1984 and concluded in part:
“Since 1979, the Trinidad Project has been oper-
ated in a manner different than that envisioned
by the Bureau of Reclamation and that approved
by the Compact Administration. It is estimated
that these deviations in the Trinidad Project
operation have caused an additional 26,000 to
35,000 acre-feet of depletions to downstream
water users.” (Appendix Exh. 21, p. iii)
App. 57
As previously indicated, the Trinidad issue was finally
included ay part of the investigation authorized by the
Compact Administration on March 28, 1985. However,
like the well development issue, Trinidad was dropped
on October 8, 1985.
Colorado’s principal argument with respect to Trini-
dad Reservoir is that reservoir operations are currently
being reviewed and analyzed by the United States Bureau
of Reclamation. Colorado claims that the Bureau’s study,
which was begun in 1984, embraces all of Kansas’ com-
plaints. The study was requested by the Compact Admin-
istration following the Simons, Li report, but was also
independently required as part of a five-year review pro-
cedure. The Bureau’s final report is expected at any time.
Two draft reports have been issued earlier, and Kansas
maintains that there are both “methodological and legal
objections” to the last draft. (Kansas Response, p. 29)
However, the scope and efficacy of the Bureau’s study are
not the issue. There is nothing to show that a routine,
though timely, study by the Bureau constitutes a Compact
investigation. Indeed, the Compact administration pre-
sumably would not have included the operations of Trini-
dad Reservoir within its March 28, 1985 investigation if
the Bureau’s study had been intended to serve that func-
tion. The Bureau’s study may provide valuable data on
the issue, but it is not a substitute for action by the
Compact Administration to investigate Kansas’ com-
plaints.
The decline of Arkansas River flows into Kansas
appears to be admitted. At issue are the cause or causes,
and whether Compact violations are involved. Kansas
has made good faith allegations of such violations, and
App. 58
has presented preliminary studies to support its position.
Certainly the future effectiveness of the Compact Admin-
istration requires timely resolution of these allegations.
However, the Administration structure is such that even a
preliminary investigation of the allegations has not pro-
ceeded. By exercising its veto on the Commission, though
done in good faith, Colorado has effectively prevented
“authoritative Commission action.” (cf. Texas v. New Mex-
ico, supra, 462 U.S. 554, 568)
The Special Master believes that Kansas has met its
obligations under the law, and that returning these issues
to the Compact Administration would not prove effec-
tive, nor would further delay be fair. Accordingly, Colo-
rado’s Motion is hereby denied.
DATED: October 21, 1988
/s/ Arthur L. Littleworth
Arthur L. Litthleworth
Special Master
App. 59
PROOF OF SERVICE BY MAIL
(1013A, 2015.5 C. C. P.)
STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
lam a citizen of the United States and a resident of the county
aforesaid; I am over the age of eighteen years and not a party to
the within entitled action; my business address is:
BEST, BEST & KRIEGER, 3750 University Avenue, 400
Mission Square, P.O. Box 1028, Riverside, CA 92502.
On October 21, 1988, I served the within DECISION OF
SPECIAL MASTER ON COLORADO MOTION TO STAY
on the interested parties listed below in said action, by
placing a true copy thereof enclosed in a sealed envelope with
postage thereon fully prepaid, in the United States mail at
Riverside, California addressed as follows:
Richard A. Simms, Esq.
Attorney at Law
P.O. Box 280
Santa Fe, NM 87504
David W. Robbins, Esq.
Hill & Robbins
100 Blake Street Building
1441 Eighteenth Street
Denver, CO 80202
Patricia Weiss, Esq.
U. S. Department of Justice
Land & Natural Resources Division
10th & Pennsylvania Avenues N.W.
P.O. Box 663
Washington, D.C. 20044
App. 60
Andrew F, Walch, Esq.
U. S. Department of Justice
Land & Natural Resources Division
3305 Federal Building
650 Capitol Mall
Sacramento, CA 95814
I declare, under penalty of perjury, that the foregoing is true
and correct.
Executed on October 21, 1988 at Riverside, California
(date) (Place)
/s/ Sandra L. Simmons
Signature
Sandra L. Simmons
APPENDIX - Exhibit 6
Order re Kansas Motion to Bifurcate Proceedings,
filed January 2, 1990
App. 61
IN THE SUPREME COURT OF THE UNITED STATES
STATE OF KANSAS, ) |
) No. 105, Original
Plaintitt, ) October Term,
v. ) 1985
STATE OF COLORADO,
Defendant. )
i = )
ORDER RE KANSAS J
TO BIFURCATE PROCEEDINGS
(Filed Jan, 2, 1990)
On May 19, 1989, Kansas filed a Second Motion to
Amend Complaint and to Bifurcate Proceedings. The pro-
posed amendment to the Complaint has been ruled upon,
but not the bifurcation motion. Kansas urged in its
motion that “[A]!! proceedings relating to damages or
compensation” be severed and reserved for subsequent
proceedings after a final decision on liability. Colorado
initially opposed the motion, arguing that the issues of
liability and damages were so intertwined in this case
that they could not be separated and still satisfy the
criteria of Rule 42(b). Colorado was especially concerned
that the bifurcation sought by Kansas might prejudice its
ability to present evidence in support of its counterclaim
and affirmative defenses of laches, estoppel, waiver and
unclean hands.
At the hearing on November 6, 1989, the Special
Master assured Colorado that no bifurcation of issues
would impair Colorado’s ability to present its affirmative
defenses or counterclaim as part of the liability phase of
App. 62
the trial, Subject to that condition, however, the Special
Master outlined certain advantages of severing the entire
remedy phase of the trial, including any monetary dam-
ages and expert testimony thereon, until the liability
issue has been decided and the amounts of shortage, if
any, have been determined.
After further discussion, counsel for Kansas stated
his general support for such a bifurcation of the remedy
phase of the trial. Colorado did not disagree, but contin-
ued to stress its primary concern that any bifurcation
order not preclude Colorado from presenting “economic
testimony” during the liability phase of the trial. Record
of November 6, 1989, at 88. Counsel for Colorado
explained that he wanted the ability, as part of any con-
sideration of liability, to address the relationship between
water use practices in both states and the economics of
those practices, in order to assist in explaining why cer-
tain things were done and why certain changes occurred.
The United States was not present at the November 6
hearing, but previously had stated that it took no position
on the Kansas motion to bifurcate.
The underlying issue in this case is whether the State
of Colorado and its water users, in violation of the Com-
pact, have caused a material depletion in the usable
quantities or availability of the waters of the Arkansas
River for use by the water users in Kansas. If Kansas fails
to show such a violation of the Compact, then of course it
has no grounds for relief. Assuming, however, that lia-
bility is established, the remedy phase of the trial then
promises to be complex and possibly quite lengthy. Kan-
sas seeks both injunctive relief and damages. It has also
indicated that it may propose the replacement of native
App. 63
Arkansas River water with currently unused transmoun-
tain water. Moreover, the recent settlement in Texas v, New
Mexico has left unresolved major issues over the way in
which any monetary damages may be computed. The
Special Master believes that these various remedy issues
can best be addressed after liability has been determined,
and any water shortages to Kansas have first been quan-
tified.
Accordingly, and pursuant to Rule 42(b), the trial of
this case will be bifurcated into a liability and a remedy
phase, provided that the State of Colorado shall not be
limited during the liability phase from introducing such
. economic or other evidence or testimony related to any
damage that may be necessary to its defense on the issue
of liability, or in support of its affirmative defenses or
counterclaims. See Texas v. New Mexico, 446 U.S. 540
(1980); 462 U.S, 554 (1983); and 482 U.S, 124 (1987); Smith
v. Alyeska Pipeline Serv. Co., 538 F.Supp. 977 (D. Del. 1982);
Gasoline Products Co, v. Champlin Refining Co. 283 U.S. 494,
500 (1931).
DATED: January 2, 1990
/s/ Acthur L. Littleworth
Arthur L. Littheworth
Special Master
App. 64
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
I am a citizen of the United States and a resident of
the County aforesaid; | am over the age of eighteen years
and not a party to the within entitled action; my business
address is Best, Best & Krieger, 400 Mission Square, 3750
University Avenue, Riverside, California 92502.
[ am readily familiar with Best, Best & Krieger’s
practice for collecting and processing correspondence for
mailing with the United States Postal Service. Under that
practice, all correspondence is deposited with the United
States Postal Service the same day it is collected and
processed in the ordinary course of business.
On January 2, 1990, I served the within ORDER RE
KANSAS MOTION TO BIFURCATE PROCEEDINGS, by
placing a copy of the document in a separate envelope for
each addressee named below and addressed to each such
addressee as follows:
Richard A, Simms, Esq.
Simms & Stein
First Northern Plaza, Suite A
121 Sandoval Street
Santa Fe, New Mexico 87501
David W. Robbins, Esq.
Hill & Robbins |
100 Blake Street Building
1441 Eighteenth Street
Denver, Colorado 80202
App. 65
Patricia Weiss, Esq.
U.S. Department of Justice
Land & Natural Resources Division
General Litigation Section, Room 829
601 Pennsylvania Avenue N.W.
P.O, Box 663
Washington, D.C. 20044-0663
Andrew F. Walch, Esq.
U.S. Department of Justice
Land & Natural Resources Division
U.S. Federal Building
1961 Stout Street, #690
P.O. Drawer 3607
Denver, Colorado 80202
On January 2, 1990, at the office of Best, Best &
Krieger, 3750 University Avenue, 400 Mission Square,
Riverside, California 92502, | sealed and placed each
envelope for collection and deposit by Best, Best &
Krieger in the United States Postal Service, following
ordinary business practices.
I declare under penalty of perjury under the laws of
the State of California, that the foregoing is true and
correct.
Executed on January 2, 1990, at Riverside, California.
/s/ Sandra _L. Simmons
Sandra L. Simmons
APPENDIX ~ Exhibit 7
Order re Pre-Trial Discovery and Procedures,
filed March 7, 1990; Order Amending Order
re Pre-Trial Discovery and Procedures, filed May 25, 1990
App. 66
IN THE SUPREME COURT OF THE UNITED STATES
STATE OF KANSAS, ) |
| ) No. 105, Original
Plaintiff, , auliees Parte
v. ) 1985
STATE OF COLORADO, ‘
Defendant. )
- )
This Order is intended to govern the discovery pro-
cedures for expert witnesses and certain other pre-trial
issues. Additional pre-trial orders may still be required.
This Order arises from a Pre-trial Conference held on
February 16, 1990 before the Honorable Arthur L. Lit-
tleworth, Special Master. Appearing at the conference on
behalf of Petitioner, State of Kansas, were Richard A.
Simms, Esq. and John B. Draper, Esq. Appearing on
behalf of Respondent, State of Colorado, were David W.
Robbins, Esq. and Dennis M. Montgomery, Esq. Appear-
ing on behalf of Intervenor, United States of America,
was David Shuey, Esq. This Order has been prepared
after extensive discussion with counsel and after consid-
eration by the Special Master of proposed draft pre-trial
orders prepared, respectively, by counsel for the State of
Colorado and counsel for the State of Kansas. Based upon
that discussion and review,
IT IS HEREBY ORDERED as follows:
App. 67
STATEMENTS OF ENTITLEMENT UNDER THE
PROVISIONS OF THE COMPACT
For the purpose of furthering the Special Master’s
understanding of the issues and positions of the parties
in this case, and in response to certain discovery issues,
Kansas and Colorado by April 2, 1990 shali each file and
serve on the other parties a statement setting forth their
respective views on the entitlements of each State under
the Arkansas River Compact to receive or use the waters
of the Arkansas River. These statements shall be complete
and shall take into account all provisions of the Compact.
The United States may, but is not required to, also submit
its views on the subject.
II.
DESIGNATION OF ADDITIONAL EXPERT
WITNESSES BY THE STATE OF KANSAS
By motion filed February 15, 1990, the State of Kansas
sought leave of the Special Master to designate tive addi-
tional expert witnesses. That motion is-hereby granted.
Colorado indicated at the Pre-trial Conference that it did
not intend to designate any additional experts. It is
understood that the expert identifications required and
made on January 15, 1990, together with the additional
designations authorized hereby, do not include any
experts required in any damage phase of the trial. Nor
does this Order cover any rebuttal witnesses or exhibits.
App. 68
Iff.
STATEMENT OF THE FACTS AND
OPINIONS OF KANSAS’ EXPERTS
Not later than Monday, April 2, 1990, the State of
Kansas shall provide a statement of the substance of the
facts and opinions to which its experts are expected to
testify and a summary of the grounds for each opinion
stated, as required by Rule 26(b)(4)(A)(i).
IV.
SCHEDULE FOR DEPOSITIONS FOR KANSAS’
EXPERTS BY COLORADO AND THE UNITED STATES
The State of Colorado and the United States of Amer-
ica will be permitted to begin discovery of Kansas’
experts by deposition and by subpoena duces tecum on
Friday, April 6, 1990. Colorado and the United States
shall have a right to depose Kansas’ experts for a period
of two months concluding Wednesday, June 6, 1990.
Depositions of the experts for Colorado and United States
will follow as provided in Section VI hereof. The follow-
ing rules, inter alia, shall apply to these depositions:
A. The parties have indicated that they will
cooperate in the scheduling of individual
depositions of expert witnesses, and no
additional orders in that regard are now
required.
B. No subpoenas will be necessary to ensure
that identified witnesses appear at and
bring documents to depositions, except for
witnesses who will not appear voluntarily
and over whom the parties have no control.
App. 69
Listing the documents requested on the
notice of deposition will be sufficient.
If it develops in the course of any deposi-
tion that an expert has relied upon material
not in possession of the deposing party,
such material shall be provided promptly to
all parties.
During the two-month period of time, other
discovery by any party (except for deposi-
tions of Colorado’s and United States’
experts) shall not be precluded, provided
and to the extent such discovery does not
interfere with the deposition of Kansas’
experts by Colorado and the United States.
The scope of authorized discovery, both as
to depositions and the production of docu-
ments, of the expert witnesses designated
by the State of Kansas shall encompass the
following:
1. All instructions to the expert, not other-
wise privileged, relating to the scope of
his or her assignment, including all doc-
uments relating thereto;
2. All data, documents, interview notes or
other material relied upon or reviewed
by the expert in preparing for testi-
mony; provided that material reviewed
but not relied upon need not be pro-
duced except upon special showing.
w
All notes, records, draft reports, prelim-
inary reports, or other preliminary
materials prepared by a designated
expert witness; provided that the pro-
duction of draft or preliminary material
shall not be required unless the expert
App. 70
has changed any opinion expressed
therein, or upon other special showing.
4. All final reports, exhibits, charts,
graphs, tables or other materials pre-
pared by the expert.
Based upon the representations of counsel, the Spe-
cial Master understands that for budgetary reasons
experts for the State of Kansas have not prepared
final reports which set forth their opinions and the
grounds therefor. The Special Master expects, how-
ever, that the State of Kansas will endeavor to orga-
nize whatever written documents have been
prepared by its experts in a way that will expedite
discovery by Colorado and the United States. Should
the absence of final reports for Kansas’ experts
unduly delay discovery by Colorado and the United
States, the Special Master will reconsider the time
required for expert discovery.
Expert depositions by Colorado and the United
States shall proceed, insofar as practical, without
interruption. If such depositions can be completed in
less than the allotted two months, this shall be done.
In such event the two months allowed for expert
depositions by Kansas shall be advanced from the
June 8 commencement date set in Section VI hereof.
Likewise, the statements required of Colorado and
the United States in Section V shall be provided at
least four days before Kansas begins.
The resolution of any discovery disputes arising dur-
ing depositions shall be undertaken at the time of the
App. 71
deposition, by telephone to the Special Master, or as
soon thereafter as is possible.
V.
STATEMENT OF FACTS AND OPINIONS OF
COLORADO AND UNITED STATES EXPERTS
Not later than Monday, June 4, 1990, the State of
Colorado and the United States shall each provide a
statement of the substance of the facts and opinions to
which their expert witnesses are expected to testify and
the summary of the grounds for each opinion stated, as
required by Rule 26(b)(4)(A)(i).
VI.
SCHEDULE FOR DEPOSITIONS FOR COLORADO’S
AND UNITED STATES’ EXPERTS BY KANSAS
The State of Kansas will be permitted to begin dis-
covery of Colorado’s and United States’ experts by depo-
sition and by subpoena duces tecum on Friday, June 8,
1990. Kansas shall have a right to depose Colorado’s and
the United States’ expert witnesses for a period of two
months concluding Wednesday, August 8, 1990. Corre-
sponding rules to those set forth in Sections IV A, B, C, D,
E and H shall also apply to these depositions by Kansas.
Vil.
AGREEMENTS REGARDING DEPOSITIONS OF
EXPERTS, INCLUDING FEES AND EXPENSES
Discovery of experts by deposition shall be pre-
cluded except as provided herein or as agreed to by the
App. 72
parties. Each party shall pay the expert fees and expenses
to depose another party’s expert witnesses; provided,
however, that such fees and expenses shall be limited to
the time actually spent in deposition and the reasonable
expenses of travel, hotel and meals if the deposition is
scheduled at a location other than where the expert wit-
ness resides or has his or her principal place of business.
The parties agree that depositions of all experts may be
taken in Denver, Colorado, and that the party electing to
take the deposition of an expert who does not reside or
have his or her principal place of business in Denver,
Colorado, shall pay the travel expenses of such expert,
including airfare and reasonable expenses for hotel and
meals during the deposition, in order to take such deposi-
tions in Denver, Colorado. The attorneys agree to make
the expert witnesses identified by the party they repre-
sent available for deposition in accordance with his
schedule. In the event any expert is not available to be
deposed in accordance with the schedule provided for in
this Order for any reason, the parties shall attempt to
agree on alternative dates for such deposition, and a
modification of the schedule herein. If the parties cannot
agree, the party desiring to take the deposition may apply
to the Special Master to schedule the deposition and to
make such modification as the Special Master deems fair
and just under the circumstances.
VII.
DISCLOSURE OF NON-EXPERT
WITNESSES BY COLORADO
By Friday, June 15, 1990 the State of Colorado shall
identify all of its non-expert witnesses who are expected
App. 73
to testify at trial, including their addresses and telephone
numbers, together with a summary of testimony of each
such witness.
IX.
PRE-TRIAL STATEMENTS
On or before Wednesday, August 15, 1990, the parties
shall file pre-trial statements setting forth any stipula-
tions concerning joint exhibits, any admissions of fact,
data or documents, a statement of disputed issues of fact
and law, and a list of exhibits which may be offered at
trial. In addition, the pre-trial statements of Kansas and
the United States shall identify al) of their non-expert
witnesses who are expected to testify at trial, including
their addresses and telephone numbers, together with a
summary of the testimony of each such witness.
By Wednesday, August 29, 1990, the parties may peti-
tion the Special Master for leave to add the name of any
additional non-expert witness who could not reasonably
have been anticipated to be required as a witness until
after the initial identification of non-expert witnesses by
others, and for leave to add any additional exhibits which
could not reasonably have been anticipated to be
required until after the initial designation of exhibits by
others. Thereafter, additional exhibits may not be
endorsed or offered, except for impeachment or rebuttal
exhibits, with the following limited exception: a party
may petition the Special Master to admit additional
exhibits or testimony whose existence was not known or
could not have been foreseen or on the grounds that the
ends of justice require, and the Special Master may admit
App. 74
such exhibits or testimony at his discretion, but only on
such conditions as the Special Master deems just under
the circumstances and which can be permitted without
undue prejudice to.other parties.
X.
EXCHANGE OF COPIES OF EXHIBITS;
OBJECTIONS TO AUTHENTICITY OF EXHIBITS
Except for any joint exhibits to which the parties may
have agreed, the parties shall provide copies of all
exhibits to other parties by Wednesday, August 15, 1990,
unless photocopying is impractical because of the size or
unusual length of the exhibit, in which case the exhibit
shall be made available for inspection in Denver, Colo-
rado. The authenticity of all documents designated as
exhibits shall be deemed admitted unless a party files a
written statement by August 29, 1990, identifying the
specific documents, the authenticity of which are not
admitted.
XI.
DATES FOR FILING PRE-TRIAL MOTIONS
All pre-trial motions shall be filed no later than
August 15, 1990.
XI.
CUT-OFF DATE FOR ALL DISCOVERY
To enable the parties to prepare for trial, no discovery
shall be conducted or required after August 8, 1990,
App. 75
except for non-expert witness depositions which may be
taken until August 31, 1990.
XIII.
TRIAL DATE
To permit full and fair discovery by all parties, and at
the request of both States, the trial date now set for July
16, 1990 will be vacated and the trial date reset to com-
mence Monday, September 17, 1990.
XIV.
This Order may be amended for good cause shown.
DATED: March 7, 1990.
/s/ Arthur L. Littleworth
Arthur L. Littleworth
Special Master
App. 76
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
I am a citizen of the United States and a resident of
the County aforesaid; I am over the age of eighteen years
and not a party to the within entitled action; my business
address is Best, Best & Krieger, 400 Mission Square, 3750
University Avenue, Riverside, California 92502.
I am readily familiar with Best, Best & ‘rieger’s
practice for collecting and processing correspondence for
mailing with the United States Postal Service. Under that
practice, all correspondence is deposited with the United
States Postal Service the same day it is collected and
processed in the ordinary course of business.
On March 7, 1990, I served the within ORDER RE
PRE-TRIAL DISCOVERY AND PROCEDURES by placing
a copy of the document in a separate envelope for each
addressee named below and addressed to each such
addressee as follows:
Richard A. Simms, Esq.
Simms & Stein
First Northern Plaza, Suite A
121 Sandoval Street
Santa Fe, New Mexico 87501
David W. Robbins, Esq.
Hill & Robbins
100 Blake Street Building
1441 Eighteenth Street
Denver, Colorado 80202
App. 77
Patricia Weiss, Esq.
U.S. Department of Justice
Land & Natural Resources Division
General Litigation Section
P.O. Box 663
Benjamin Franklin Station
Washington, D.C. 20044-0663
Andrew F. Walch, Esq.
U.S. Department of Justice
Land & Natura! Resources Division
U.S. Federal Building
1961 Stout Street, #690
P.O. Drawer 3607
Denver, Colorado 80202
On March 7, 1990, at the office of Best, Best &
Krieger, 3750 University Avenue, 400 Mission Square,
Riverside, California 92502, | sealed and placed each
envelope for collection and deposit by Best, Best &
Krieger in the United States Postal Service, following
ordinary business practices.
| declare under penalty of perjury under the laws of
the State of California, that the foregoing is true and
correct.
Executed on March 7, 1990, at Riverside, California.
/s/ Sandra L. Simmons
Sandra L. Simmons
App. 78
STATE OF KANSAS, No. 105, Original
United States
)
)
seneniees ) Supreme Court
” ) October Term,
STATE OF COLORADO, ‘ 1985
Respondent. )
)
ORDER AMENDING ORDER RE
PRE-TRIAL DISCOVERY AND PROCEDURES
(Filed May 25, 1990)
By motion, the State of Colorado seeks: (1) an exten-
. ston of one week in the period of time provided for its
discovery of Kansas’ expert witnesses by the Order re
Pre-Trial Discovery and Procedures filed March 7, 1990;
(2) a one week extension of the date for it and the United
States to provide a statement of the substance of the facts
and opinions to which their expert witnesses are expected
to testify; and (3) a delay of one week of the date upon
which Kansas may begin depositions of Colorado’s and
the United States’ experts. The State of Kansas, by letter
addressed to the Special Master, has indicated that it does
not oppose the requested extension of Colorado’s discov-
ery period.
Good cause appearing therefore,
Colorado’s motion to extend the period in which it
may depose expert witnesses of the State of Kansas by
one week is hereby granted. Paragraph IV of the Order re
Pre-Trial Discovery and Procedures heretofore filed on
March 7, 1990 is amended to provide that Colorado and
App. 79
the United States shal! have a right to depose Kansas’
experts for a period concluding Wednesday, June 13,
1990. Further, Paragraph V of the Order re Pre-Trial Dis-
covery and Procedures is amended to provide that the
State of Colorado and the United States shall have until
Monday, June 11, 1990 to provide a statement of the
substance of the facts and opinions to which their expert
witnesses are expected to testify ard the summary of the
grounds for each opinion stated. Finally, Paragraph VI of
the Order re Pre-Trial Discovery and Procedures is
amended to provide that discovery by the State of Kansas
of Colorado’s and the United States’ experts by deposi-
tion and by subpoena duces tecum shall commence on
Friday, June 15, 1990 and continue for a period of two
months concluding Wednesday, August 15, 1990.
/s/ Arthur L. Littleworth
Arthur L. Littleworth
Special Master
App. 80
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
I am a citizen of the United States and a resident of
the County of Riverside; | am over the age of eighteen
years and not a party to the within entitled action; my
business address is Best, Best & Krieger, 400 Mission
Square, 3750 University Avenue, Riverside, California
92501.
I] am readily familiar with Best, Best & Krieger’s
practice for collecting and processing correspondence for
mailing with the United States Postal Service. Under that
practice, all correspondence is deposited with the United
States Postal Service the same day it is collected and
processed in the ordinary course of business.
On May 25, 1990, | served the within ORDER
AMENDING ORDER RE PRE-TRIAL ORDER DISCOV-
ERY AND PROCEDURES by placing a copy of the docu-
ment in a separate envelope for each addressee named
below and addressed to each such addressee as follows:
Richard A. Simms, Esq.
Simms & Stein
First Northern Plaza, Suite A
121 Sandoval Street
Santa Fe, New Mexico 87501
David W. Robbins, Esq.
Hill & Robbins
100 Blake Street Building
1441 Eighteenth Street
Denver, Colorado 80202
App. 81
Patricia’ Weiss, Esq.
U.S. Department of Justice
Land & Natural Resources Division
General Litigation Section
P. O. Box 663
Benjamin Franklin Station
Washington, D.C. 20044-0663
Andrew F. Walch, Esq.
U.S. Department ef Jwstice
Land & Natural Resources Division
U.S. Federal Building
1961 Stout Street, #690
P. O. Drawer 3607
Denver, Colorado 80202
On May 25, 1990, at the office of Best, Best & Krieger,
3750 University Avenue, 400 Mission Square, Riverside,
California 92501, | sealed and placed each envelope for
collection and deposit by Best, Best & Krieger in the
United States Postal Service, following ordinary business
practices.
| declare under penalty of perjury under the Jaws of
the State of California, that the foregoing is true and
correct and that this Proof of Service is executed on this
25th day of May, 1990 at Riverside, California.
/s/ Linda Hutton
Linda Hutton
APPENDIX - Exhibit 8
Order re Kansas Motion for Continuance,
filed March 27, 1991
App. 82
IN THE SUPREME COURT OF THE UNITED STATES
STATE OF KANSAS,
— )
—- ) No. 105, Original
” ) October Term,
STATE OF COLORADO, 1985
Defendant. )
)
ORDER RE KANSAS MOTION FOR CONTINUANCE
{Filed Mar. 27, 1991)
The trial in this case began on September 17, 1990.
While counsel for al! parties originally estimated that the
first phase! of the trial would require between two and
three months, Kansas still had not completed its case
when the trial was temporarily recessed on February 20,
1991, after some 57 trial days.
The first Kansas witness was Dr. Douglas R. Lit-
tlefield, an historian, who testified extensively on the
events leading up to the 1949 Arkansas River Compact,
and on the negotiation of the Compact itself. His testi-
mony and cross-examination extended over 11 trial days,
from September 18 to October 16, 1990. He provided
support for the Kansas position concerning the intent of
the Compact, Kansas’ entitlement thereunder, and the
Colorado obligations.
' The trial was bifurcated by Order dated January 2, 1990.
The first phase relates to liability only. Uf liability is established,
then the trial will resume for the remedy phase, including dam-
ages.
App. 83
Kansas then followed with a number of witnesses,
primarily experts, who presented evidence on what has
occurred since the Compact was approved in 1949. Much
of this evidence consisted of basic hydrologic and land
use data that was also used in the development of the
Kansas “hydrologic-institutional” computer model.
Although Colorado has yet to begin its case, it is clear
from the pretrial statements and from cross-examination
that much of this voluminous basic information is in
dispute.
For example, post-Compact groundwater pumping in
Colorado, and its impact on the flows of the Arkansas
River reaching Kansas, certainly constitute major issues
in this case. Yet there are no official records that fully
detail the large number of wells that have been drilled
since 1949, nor the amounts of water that have been
pumped over the years. Groundwater production must be
estimated through the use of utility records for those
wells equipped with electric motors, but a sizable number
of wells are fueled with natural gas, for which no compa-
rable utility records are available. Records are also lack-
ing on the number of acres irrigated and the kinds of
crops grown. The crop mixture, of course, affects the
amount of water used. Agricultural usage must therefore
be pieced together from various records, surveys, and
aeria! photographs. Streamflow records are also incom-
plete. While flows of,the Arkansas River are gauged at
numerous points, and those measurements do not seem
to be in dispute, many of the tributaries are not gauged at
all, and others have only incomplete records. The pat-
terns, of historic flows in the Arkansas River have also
been altered by the operation of three large reservoirs in
App. 84
Colorado. Moreover, in recent years, large amounts of
water from the western slopes of the Rocky Mountains, to
which Kansas claims no rights, have been imported to
augment the Arkansas River Basin supplies in Colorado.
These are not the only areas of important factual
dispute, but they serve to illustrate the complexity of
determining the impact of changes that have occurred
since 1949, and whether such changes constitute one or
more violations of the Arkansas River Compact.
The chief technical expert for the State of Kansas has
been Timothy J. Durbin. He began his work for Kansas in
1985, investigating various possible causes for the deple-
tion of flows in the Arkansas River at the Colorado-
Kansas state line. He took the stand on January 14, 1991.
In the vernacular of the baseball season, he was Kansas’
cleanup hitter. He took much of the evidence introduced
by earlier Kansas expert witnesses, blended it into his
own investigation, and reached specific conclusions
about the causes of depletion in stateline flows. His con-
clusions were derived from three separate approaches: a
statistical analysis, a water budget analysis, and the
results of a complex hydrologic-institutional model of the
Arkansas River Basin. Only through the model, however,
did he allocate specific amounts of depletion to specific
causes. For example, he prepared a summary matrix
(Kansas Exhibits 111° and 112") that showed what the
stateline flows would have been in the absence of post-
compact well pumping in Colorado, and separately, the
amount of reduction in stateline flows caused by the
winter water storage program in Colorado. Kansas main-
tains that both of these constitute Compact violations. Mr.
App. 85
Durbin completed his testimony on January 24, 1991, and
cross-examination by Colorado began on the same day.
During cross-examination, a number of mistakes
were uncovered in certain Kansas exhibits. Some were
merely plotting errors, e.g., discrepancies between actual
tabulated data and the graphs or summaries portraying
those data on display exhibits. Some errors, however,
were more substantive, and some affected the program
coding instructions used in the model. Kansas began to
respond by overnight preparation of revised exhibits.?
Mr. Durbin had the responsibility of explaining the revi-
sions, but in some instances a second or third revision
was offered even before there had been any opportunity
to testify on the first. Errors in coding or handling data in
the model presented even more difficulties. Mr. Durbin
stated that more time would be required for these analy-
ses and changes.* It was finally agreed that Mr. Durbin
would be withdrawn from the stand and given time to
correct the errors in the model and other Kansas exhibits,
as might be appropriate, and then would return for addi-
tional examination at a time to be worked out. (Rep. Tr.,
LIV, Feb. 14, p. 101)
Kansas then called as its next witness Dr. Lawrence J.
Lefkoff, who had assisted Mr. Durbin and had direct
? For example, on January 28 Kansas offered 13 revised
exhibits, and the next day produced another 10.
* Colorado indicated that the error with respect to the win-
ter water storage program had a major impact. [t claimed that
when monthly flows were properly adjusted, the result would
show that the winter water storage program had no adverse
effect on stateline flows, thus eliminating one of Kansas’ claims.
App. 86
responsibility for certain aspects of the model. His direc
testimony, apart from that related to revisions of the
model, was completed on February 15.
The trial resumed on February 19. At the outset, Mr.
Simms, counsel for Kansas, reported in chambers that Mr.
Durbin had been admitted over the weekend to a psychi-
atric hosrital with severe depression. At that time, Mr.
Simms had not been able to contact Mr. Durbin’s physi-
cian directly, and he had little additional information. The
trial proceeded with the cross-examination of Dr. Lefkoff,
while Mr. Simms attempted to learn more.
On the next day, February 20, an extensive confer-
ence was held in chambers, and summary statements
were then made to the court reporter. That transcript was
ordered sealed, except as it was necessary for counsel to
advise their parties of what had occurred and the reasons
for delay. Essentially, however, counsel for Kansas indi-
cated that Mr. Durbin would not be able to work on the
case for at least three months, and perhaps would not be
able to return at all. Colorado requested thar the services
of an independent Board-certified psychiatr. | oe secured
to review Mr. Durbin’s situation and then report to the
Master. Colorado stated that it would pay for the cst of
such an examination and report. Colorado also argued
that any extended postponement in the trial was unneces-
sary and would be highly prejudicial to Colorado, no
matter what Mr. Durbin’s frcture condition might be. At
the conclusion of that session, Kansas was ordered to file
a written motion for continuance by March 1, Colorado's
request for an independent medical opinion was
approved, and at the close of the day the trial was
App. 87
recessed until further order. At that time, Dr. Lefkoff’s
cross-examination was not completed.
Kansas’ written motion seeks a continuance of seven
months. It is based upon a brief affidavit from Jean A.
Warren, M.D., Mr. Durbin’s attending psychiatrist, stating
that he is suffering from a major depression; that three
months will be required for treatment and convalescence;
and that he would then most likely be able to return to
his customary work, but there is no guarantee of that fact.
The Kansas motion states that it intends to expand the
roles of several expert witnesses already involved in the
case in order to fill the void created by Mr. Durbin’s
illness. The principal replacement appears to be Steven P.
Larson. His affidavit states that three months would be
‘required “to come up to Mr. Durbin’s level of knowl-
edge,” and because of prior commitments in a number of
other cases, a minimum of seven months would be
required for him to be able to testify here.
Colorado filed a response, objecting to such a lengthy
continuance, and indicating that if this were ordered the
case would actually have to go over for at least a year.
Colorado’s chief counsel is scheduled to try another
major water case in October, 1991, and a number of the
expert witnesses here are also involved in that case. Colo-
rado had reported this commitment early on, but under
the original scheduling of this case, there did not appear
to be any conflict.
Colorado is skeptical about the need for any lengthy
delay. It argues that the Kansas case is almost complete,
and that the expected revisions in programming the
model can be done by Dr. Lefkoff. Indeed, Mr. Durbin
App. 88
testified that most of the problems were being analyzed
by Dr. Lefkoff and necessary coding changes were being
made by him.* However, there were parts of Mr. Durbin’s
testimony that were also under revision (including the
statistical and water budget analyses), and Dr. Lefkoff
had not participated in that work.
In its motion, Kansas also argued that Mr. Durbin
would be needed to assist Kansas counsel in the cross-
examination of Colorado experts on phreatophytes and
pumping estimates, as well as on modeling. (Motion, p. 3)
Colorado properly points out, however, that Dr.
Groeneveld and Mr. Book, respectively, were the Kansas
experts on phreatophytes and groundwater pumping.
(Colorado Response, p. 15) Mr. Durbin was not listed as a
witness on either of these subjects, nor on basic data. In
fact, most of the basic data used in the Kansas hydro-
logic-institutional model came to Mr. Durbin from other
Kansas e: perts.
With the consent of Dr. Warren, | did arrange for a
second opinion from a Board-certified psychiatrist, Dr.
Robert M. Bittle. He examined Mr. Durbin on March 2,
* Mr. Durbin testified that Dr. Lefkoff was doing the work
associated with program changes on the winter water storage
program, and in the distribution of recharge in irrigated areas.
(Rep. Tr., LID, February 13, pp.8-10) Moreover, Mr. Durbin iden-
tified a number of other problem areas that were being reviewed
by Dr. Lefkoff and that would probably require corrections by
him: use of native flows in District 67, transit losses, “want
factors” for the Buffalo Canal, Kansas calls for water, storage of
Amity water in John Martin Reservoir, off-channel storage when
iwo storage rights are involved, and negative streamflows.
(Rep. Tr., LIN, February 13, pp. 9, 10, 78, 80, 82-85)
App. 89
1991, in his office for approximately three hours. This was
the day that Mr. Durbin was released from Heritage
Oaks, a psychiatric hospital in Sacramento. He had been
admitted on February 16. Dr. Bittle also completed certain
psychological testing, reviewed the hospital records, and
interviewed Mrs. Durbin.
On March 8, | received an 18-page single-spaced
report from Dr. Bittle. It was extremely comprehensive
and included much information that I felt should be kept
confidential. | did not forward a copy of this report to
counsel, but I did promptly mail them a copy of his
recommendations. Dr. Bittie’s diagnosis was: “Major
depressive illness, recurrent, without psychotic features,
in partial remission.” He felt that in approximately four
weeks Mr. Durbin would be able to resume his trial
duties. He informed me that Mr. Durbin was in agree-
ment, and wanted to return.
On March 12 | arranged a conference telephone call
with all counsel. While not discussing Dr. Bittle’s report
in detail, | indicated that there was no doubt that Mr.
Durbin’s condition leading to his hospitalization was
indeed serious. Nonetheless, in view of Dr. Bittle’s recom-
mendation, I suggested that we return to court on April 8,
that we finish what little remained on the Kansas case
(except for the various exhibit and model revisions still
under way), and that Colorado then begin its case, start-
ing with subjects that would not require Mr. Durbin’s
participation. Colorado and the United States were in
general agreement with this suggestion, but Kansas asked
that | hold my decision until its reply brief had been
received.
App. 90
The Kansas reply brief included an additional affi-
davit from Dr. Warren, and two separate affidavits from
church counselors who indicated that they had been
counseling Mr. Durbin and his family since 1986. Each of
these affiants disagreed with Dr. Bittle. Moreover, the two
counselors indicated that they had spoken recently with
Mr. Durbin and that he did not believe he would be ready
to return to the trial within a month. I called Dr. Bittle
and relayed these additional opinions to him. He said
that he wanted to talk again with Mr. Durbin and that he
would get back to me as soon as possible.
Dr. Bittle called on March 19. In substance, he
reported that Mr. Durbin appeared to be a different per-
son from the man he had seen just after his release from
the hospital, that Mr. Durbin no longer believes that he
can participate, and, without discussing the reasons here,
that Dr. Bittle agrees. A confirming letter has also been
received from Dr. Bittle. From my conversations with Dr.
Bittle, and my review of all of the medical reports, I have
concluded that Mr. Durbin should not be pressured into
returning, and that we must assume that he will not be
able to resume his trial responsibilities soon, if at all.
Colorado argues, nonetheless, that Dr. Lefkoff should
be able to replace Mr. Durbin since they “were jointly
listed as expected to testify to the same facts and opin-
ions.” (Response, p. 11) It was clear, however, from the
depositions and from the Kansas direct testimony that Dr.
Lefkoff’s responsibilities were much more limited than
those of Mr. Durbin. His model responsibilities were con-
fined to the development of the administrative and land
modules of the overall model, and running the model to
calculate stateline depletions. (Rep. Tr., LIV, Feb. 14, at p.
App. 91
112) Most of the work done in relation to the precipita-
tion-runoff modeling, and the groundwater modeling,
was done prior to Dr. Lefkoff’s employment. (Dr. Lefkoff
deposition, May 15, 1990, at pp. 10-11) Nor did he have
responsibilities for the statistical and water budget analy-
ses presented by Mr. Durbin, and for which possible
revisions are still pending. But perhaps of overriding
importance is the fact that Mr. Durbin was Kansas’ “prin-
cipal expert in the critical area of hydrology,” and Kansas
should be entitled to select a replacement expert, if that is
necessary, of equal experience and stature. (Kansas Reply,
p. 23) While Kansas indicates that Dr. Lefkoff’s role will
be expanded, as will that of Spronk Water Engineers,
Kansas has asked Steven P. Larson of S. S. Papadapulos to
be the primary replacement for Mr. Durbin. It is his
schedule that drives the motion for a seven month contin-
uance.
Both States acknowledge that the granting of a con-
tinuance during trial lies within the sound discretion of
the trial court. (Kansas Brief, pp. 2-3; Colorado Response,
p. 9; Johnston v. Harris County Flood Control District, 869
F.2d 1565, 1570 (CA 5 1989); Harmon v. Grande Tire Co.,
Inc., 821 F.2d 252, 256 (CA 5 1987)) Moreover, Special
Masters have broad discretion in procedural matters
relating to the receipt of evidence and the-order of wit-
nesses. The Federal Rules of Civil Procedure are advisory
only. (Sup.Ct.Rule 17.2; see California v. Southern Pacific
Co., 157 U.S. 229, 249 (1895); Ohio v. Kentucky, 410 US.
641, 644 (1973))
In view of Mr. Durbin’s unique role in the develop-
ment and presentation of the Kansas case, and the impor-
tant sovereign interests that are involved in this Case, the
App. 92
completion of the Kansas case on direct, and any rebutta:
evidence, will be continued until either Mr. Durbin is able
to resume the stand, or his replacement or replacements
are prepared and available.5 I will determine later the
specific time for resuming this part of the trial, but such
scheduling will not interfere with Mr. Robbins’ prior trial
commitment in October of this year. Nor should the delay
otherwise be longer than is actually necessary.
This continuance is not granted to allow Kansas, as
Colorado fears, “to redo its case.“ (Colo. Response, p. 9)
Rather, it is intended only to allow Kansas to complete its
case, and in particular, to remedy the errors in the model
and other exhibits that were identified during cross-
examination. Colorado suggests that this task should not
be large, but having to defend revisions on the stand may
invoke even more intense cross-examination than
occurred originally. Kansas is relying upon the testimony
of Mr. Durbin, or his replacement, to quantify the short-
age in stateline flows, and to allocate the shortage among
specific causes. No witness who carries this burden can
afford to testify with less than full preparation.
The Kansas motion would also suspend the begin-
ning of the Colorado case in chief. Kansas argues that it
must have adequate expert assistance in order to evaluate
the expert testimony and exhibits presented by Colorado.
It says that “full access to expert assistance in
the .. . defense of its case” is a fundamental due process
-—_
5 Dr. Danielson is an exception. He is Colorado’s principal
water official and is being called by Kansas as an adverse wit-
ness. He will be fitted in during the Colorado case as his sched-
ule permits.
App. 93
right, citing Ake v. Ol lahoma, 470 U.S. 68 (1985). (Kansas
Brief, p. 5) Mr. Durbin is said to be the person who was
intended to fill that role. Kansas contends that effective
cross-examination of the opposing party’s expert may
require a continuance, citing Anzaldo v. Croes, 478 F.2d 446
(CA 8 1973); Nutt v. Black Hills Stage Lines, 452 F.2d 480
(CA 8 1971); Smith v. Massachusetts Institute of Technology,
877 F.2d 1106, 1110-1112 (CA 1 1989).
Certain issues, however, have nothing to do with Mr.
Durbin’s assignments, e.g., the Compact negotiations and
its meaning, the operations of the Trinidad Reservoir, and
the administration of water rights in both Kansas and
Colorado. Even in the areas of hydrology and land use,
Kansas presented much of its evidence through other
exnerts. Dr. Groeneveld was its witness on the use of
water by phreatophytes. Spronk Water Engineers pro-
vided the basic data on groundwater pumping, irrigated
acreage, water use, and streamflow measurements. Testi-
mony on geology and groundwater movement came from
John W. Shomaker. Thus, the Kansas interests on many
issues can be fully protected through the assistance of its
other experts, an! the presence of Mr. Durbin, or his
replacement, while perhaps useful, does not seem to be
essential in these areas.
Colorado is prepared and has been waiting to begin
its case. [t does not want it to be further postponed. The
prejudice resulting from a lengthy delay is obvious. Volu-
yninous amounts of detailed information have been
analyzed, assembled and absorbed by the expert wit-
nesses for this case, but that kind of preparation cannot
be kept in mind over time. I too would like to see the
App. 94
Colorado basic case while the Kansas evidence is still
fresh.
There can be little doubt that Kansas did intend to
rely on Mr. Durbin for help with Colorado’s modeling
efforts. Yet even in this area, Kansas is not wholly with-
out resources. Depositions were taken. Computer pro-
grams and data were exchanged. And, of course, Dr.
Lefkoff is still available. Any substantial prejudice to
Kansas can be avoided by reserving its right of cross-
examination with respect to Colorado’s modeling evi-
dence.
Accordingly, it is hereby or-red that the trial resume
on April 9 at 9:30 a.m. in Courtroom Three of the Court of
Appeals Courthouse in Pasadena with the completion of
Dr. Lefkoff’s cross-examination, apart from the results of
any revisions to the Kansas modeling evidence. Colorado
will then begin the presentation of its case. Kansas will
have the right to reserve al) or part of its cross-examina-
tion with respect to Colorado's modeling testimony, and
to complete such cross-examination when appropriate
expert assistance becomes available, or when Kansas
completes its case. In addition, the order of Colorado
witnesses shall be arranged, to the extent feasible, to
permit Mr. Spronk to be present on subjects within his
expertise. In view of Mr. Durbin’s absence, Mr. Spronk’'s
attendance assumes greater importance, but his affidavit
identifies certain difficult scheduling conflicts. If these
App. 95
conflicts cannot be avoided, then Kansas’ cross-examina-
tion may also be reserved on these witnesses until Mr.
Sprenk can be present or Kansas completes its case.
DATED: March 27, 1991
/s/ Arthur L. Littheworth
Arthur L. Littleworth,
Special Master
App. 96
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
lam citizen of the United States and a resident of the
County aforesaid; | am over the age of eighteen years and
not a party to the within entitled action; my business
address is Best, Best & Krieger, 3750 University Avenue,
400 Mission Square, Riverside, California 92502.
1 am readily familiar with Best, Best & Krieger's
practice for collecting and processing correspondence for
mailing with the United States Postal Service. Under that
practice, all correspondence is deposited with the United
States Postal Service the same day it is collected and
processed in the ordinary course of business.
On March 27, 1991, I served the within ORDER RE
KANSAS MOTION FOR CONTINUANCE by placing a
copy of the document in a separate envelope for each
addressee named below and addressed to each such
addressee as follows:
Richard A. Simms, Esq.
Simms & Stein
First Northern Plaza, Suite A
121 Sandoval Street
Santa Fe, New Mexico 87501
David W. Robbins, Esq.
Hill & Robbins
100 Blake Street Buiiding
1441 Eighteenth Street
Denver, Colorado 80202
App. 97
Patricia Weiss, Esq.
U.S. Department of Justice
Land & Natural Resources Division
General Litigation Section
P.O. Box 663
Benjamin Franklin Station
Washington, D.C. 20044-0663
Andrew F. Walch, Esq.
U.S. Department of Justice
Land & Natural Resources Division
U.S. Federal Building
1961 Stout Street, #690
P.O. Drawer 3607
Denver, Colorado 80202
On March 27, 1991, at the office of Best, Best &
Krieger, 3750 University Avenue, 400 Mission Square,
Riverside, California 92502, | sealed and placed each
envelope for collection and deposit by Best, Best &
Krieger in the United States Postal Service, following
ordinary business practices.
I declare under penalty of perjury under the laws of
the State of California, that the foregoing is true and
correct.
Executed on March 27, 1991, at Riverside, California.
/s/ Sandra L. Simmons
Sandra L. Simmons
APPENDIX - Exhibit 9
Order re Admissibility of Dr. Dracup Notes
(Kan. Exh. 746), filed February 9, 1993
App. 98
IN THE SUPREME COURT OF THE UNITED STATES
No. 105
Original
October Term, 1985
STATE OF KANSAS,
Plaintiff,
v.
STATE OF COLORADO,
Defendant,
UNITED STATES OF
AMERICA,
Intervenor.
ee de ee de ee ee a
ORDER RE ADMISSIBILITY OF
DR. DRACUP NOTES (KANSAS EXH. 746)
(Filed Feb. 9, 1993)
On September 8, 1992, in accordance with applicable
procedures, the United States filed a summary of the
proposed testimony of Dr. John A. Dracup, a UCLA engi-
neering professor, to be called as a surrebuttal witness.
Dr. Dracup had not testified during the United States’
case in chief. Nor had he been designated earlier as a
possible expert witness for the United States. On Septem-
ber 21, 1992 Kansas moved to exclude the proposed testi-
mony on several grounds. The Kansas motion was
denied, but subject to Kansas’ right to take Dr. Dracup’s
deposition before the surrebuttal phase of the trial com-
menced.
Pursuant to a deposition notice and subpoena duces
tecum, Dr. Dracup produced for Kansas certain notes that
he had taken during a meeting on July 23, 1992 with two
other expert witnesses who had testified earlier for the
App. 99
United States. These witnesses were Charles W. Binder
and Donald J. Finlayson.
That was the first time Dr. Dracup had met with
other United States experts. The meeting lasted all day.
its purpose was to give him a technical briefing, and to
help him prepare for his up-coming surrebuttal testi-
mony. He was “very anxious about coming up to speed of
a three-year court case... .” RT Vol. 141 at 76 (Dec. 16,
1992). Dr. Dracup took 25 pages: of notes, of which two
are the subject of this Order. These two pages of notes
were probably taken within the first half hour of the
meeting.
After commencement of Dr. Dracup’s deposition, but
before its completion, the United States unexpectedly
announced that it had decided not to call Dr. Dracup as a
surrebuttal witness. Nonetheless, Kansas sought to pur-
sue the issue of his notes, claiming that the two pages in
question were admissible as an admission, or an inconsis-
tent statement of a witness, or a statement against inter-
est.
Both the United States and Colorado objected strenu-
ously, arguing that the notes involved multiple levels of
hearsay and that no proper foundation for their admis-
sion had been established. Moreover, they asserted that
the material in question was “highly prejudicial” and
should not be examined by me, even during argument as
to admissibility, unless there were no alternative.!
' In its final brief (page 2) the United States said, “It is
difficult to imagine more prejudicial evidence or evidence more
lacking in probative value.”
App. 100
Accordingly, the two pages of notes, attached to Dr.
Dracup’s deposition as Exhibit 1, remained sealed until
resumption of trial on December 16, 1992. Messrs. Binder
and Finlayson, as well as Dr. Dracup, were examined that
day with respect to the hearsay and foundation issues.
An expurgated version of Dr. Dracup’s deposition was
also admitted into evidence, without objection, as Kansas
Exhibit 749. The sealed notes were not examined until it
became clear that such action Was necessary in order to
evaluate Kansas‘ claim that the statements constituted an
admission against the United States or an inconsistent
declaration of its expert witnesses.
To begin with, I ruled from the bench on December
16 that the notes came within certain hearsay exceptions
under Federal Rule 803. Although the United States has
asked in its latest brief (filed February 1, 1993, page 3)
that [ reconsider this ruling, in my judgment it is still
correct, and the ruling is hereby confirmed. While Dr.
Dracup testified that he had no present recollection of the
conversations during this July 23 meeting, it was undis-
puted that the notes were taken by him at that time.
Moreover, this was an important meeting and Dr. Dracup
said that he took the notes in order to stay focused, to pay
close attention. He stated that the notes were his inter-
pretation of what was being said over perhaps several
minutes of time. For “complete details” of that meeting,
he testified that he would have to go back to his notes. RT
Vol. 141 at 74 (Dec. 16, 1992). Dr. Dracup is a Professor of
Engineering and Applied Science at UCLA. Certainly his
notes of such an important meeting may be viewed as
being reasonably reliable, even if cryptic or if they only
synthesize a period of conversation.
App. 101
The specific portion of the notes in controversy reads:
CO: “We know we are gunty, Lut it can’t
be proved with any certainty” [quota-
tion marks in original]
WWSP: Very small, if any effects = lost in the
noise.
Kansas offered the two pages of Dracup notes,
including the foregoing statements, as its Exhibit 746.
Kansas took the position initially that the damaging state-
ment constituted an admission by both the United States
and Colorado. Kansas’ Letter Brief, Dec. 9, 1992, page 8.
Under Federal Rule 801(d)(2), an admission by a party-
opponent is not hearsay. The statement of an expert wit-
ness can constitute an admission. However, if made by
such an expert, the statement must be within the scope of
the agency or employment. Collins v. Wayne Corp., 621
Fed.2d 777, 781-782 (CA 5 1980); Rollins v. Board of Gover-
nors, 761 F.Supp. 939, 941-943 (D. R.1. 1991).
Here, the “CO” in the statement refers to Colorado,
and Kansas argued that the entire statement “seems to
refer to a quotation of a statement by a Colorado expert,
counsel or official.” Letter Brief, Dec. 9, 1992, page 8.
However, Kansas was unable to present any evidence as
to who that person might be. Nor did any witness have
an explanation for the quotation marks around part of the
statement. Accordingly, ] ruled on December 16 that a
sufficient foundation had not been laid to utilize the
notes as an admission against Colorado, or as a statement
inconsistent with the testimony of any Colorado witness.
RT Vol. 141 at 61, 67 (Dec. 16, 1992). Nothing in the briefs
recently filed compels a change in that ruling.
App. 102
The remaining unresolved issue, on which the recent
briefs have concentrated, is whether Kansas Exhibit 746
constitutes an admission against the United States, or an
inconsistent statement by its expert witnesses, or a state-
ment against interest, under Federal Rules of Evidence
801(d)(2), 804(B)(3), or 613. I have concluded that the
Dracup notes are not admissible on any of these grounds.
Messrs. Binder and Finlayson both strongly denied
making these statements, or anything like them. Assum-
ing, however, that the notes do reflect what was said, the
remarks are too ambiguous to constitute an admission by
the United States. Looking first to the “guilty” statement,
the U.S. experts may simply have been repeating a
remark made by a Colorado source. The unusual quota-
tion marks, and the reference to “CO” in the margin
would seem to lead to such an inference. Indeed, Kansas
has made this very argument. Letter Brief, Dec. 9, 1992,
page 8. Under those circumstances, there would be no
U.S. admission.
Nor is it clear that the “guilty” remark even refers to
the winter water storage program, which was the only
issue on which the U.S. experts testified. The “WWSP”
statement may well be a separate subject from the “CO”
statement. There is no reason to require a coupling of
these two statements. Indeed, the text can be read as
notes of two independent and unrelated subjects. The
United States argues that the notes are in fact inconsistent
— that the phrase “Very small, if any effects” does not fit
with being “guilty”. Kansas says the first statement could
refer to Colorado’s winter water storage program, rather
than its post-compact well pumping, and that presuma-
bly the “we” would then include the United States. But
App. 103
that argument does not really overcome the inconsistency
between the two statements.
In short, the “guilty” remark could be an admission
of the United States only if it expressed the views of
Binder or Finlayson and if it referred to the Winter Water
Storage Program. The evidence is simply not strong
enough to support these conclusions. Fed. Rules Evid.
rule 403.
Insofar as the “WWSP” note is concerned, it appears
to reflect a statement by Binder or Finlayson, without the
possible inference that they were merely quoting some-
one else. During the trial, neither of them testified te a
specific impact resulting from the Winter Water Storage
Program. Their evidence, rather, was directed at the Kan-
sas analysis and conclusions, and the statement that any
effect from the program was “lost in the noise” is consis-
tent with their opinions on the Kansas evidence. They
repeatedly made the point that the impacts shown by the
Kansas model were less than the potential error associ-
ated with such analyses. I do not believe that this portion
of the Dracup notes reflects any inconsistency with their
court testimony, or any admission by the United States.
Moreover, the foregoing analysis leaves no room for the
suggestion that such a statement would be against the
interest of either of these witnesses.
Despite ending the trial with such intense contro-
versy over Kansas Exhibit 746, it may be worth recalling
the tremendous body of evidence that has been submitted
in this case. Decisions will be made on the basis of all of
that evidence.
App. 104
The offer to admit Kansas Exhibit 746 is hereby
denied.
DATE: February 9, 1993
/s/ Arthur L. Littleworth
Arthur L. Littheworth
Special Master
App. 105
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
I am a citizen of the United States ana a resident of
the County aforesaid; I am over the age of eighteen years
and not a party to the within entitled action; my business
address is Best, Best & Krieger, 3750 University Avenue,
400 Mission Square, Riverside, California 92502.
I am readily familiar with Best, Best & Krieger’s
practice for collecting and processing correspondence for
mailing with the United States Postal Service. Under that
practice, all correspondence is deposited with the United
States Postal Service the same day it is collected and
processed in the ordinary course of business.
On February, 1993, | served the within ORDER RE
ADMISSIBILITY OF DR. DRACUP NOTES (KANSAS
EXH. 746) by placing a copy of the document in a sepa-
rate envelope for each addressee named below and
addressed to each such addressee as follows:
John B. Draper
Montgomery & Andrews
325 Paseo de Peralta
P.O. Box 2307
Santa Fe, New Mexico 87504-2307
David W. Robbins, Esq.
Hill & Robbins
100 Blake Street Building
1441 Eighteenth Street
Denver, Colorado 80202
App. 106
Patricia Weiss, Esq.
U.S. Department of Justice
Land & Natural Resources Division
General Litigation Section
P.O. Box 663
Benjamin Franklin Station
Washington, D.C. 20044-0663
Andrew F. Walch, Esq.
James J. DuBois, Esq.
U.S. Department of Justice
General Litigation Section
999 18th Street, Suite 945
Denver, Colorado 80202
On February 9, 1993, at the office of Best, Best &
Krieger, 3750 University Avenue, 400 Mission Square,
Riverside, California 92502, I sealed and placed each
envelope for collection and deposit by Best, Best &
Krieger in the United States Postal Service, following
ordinary business practices.
1 declare under penalty of perjury under the laws of
the State of California, that the foregoing is true and
correct.
Executed on February 9, 1993, at Riverside, Califor-
nia.
/s/ Sandra L. Simmons
Sandra L. Simmons
APPENDIX —- Exhibit 10
Arkansas River Compact Administration Resolution
Concerning an Operating Plan for John Martin
Reservoir, adopted April 24, 1980, as revised
May 10, 1984 and December 11, 1984
App. 107
RESOLUTION
CONCERNING
AN OPERATING PLAN FOR
JOHN MARTIN RESERVOIR
WHEREAS, the Arkansas River Compact Administra-
tion, hereinafter referred to as the Administration, recog-
nizes that, because of changes in the regime of the
Arkansas River, the present operation of the conservation
features of John Martin Reservoir does not result in the
most efficient utilization possible of the water under its
control;
WHEREAS, the Administration finds that adoption
of an operating plan that establishes storage accounts for
Kansas, for the ditches of Colorado Water District 67, and
for other Colorado ditches as provided herein may result
in more efficient utilization of the water under its control;
and
WHEREAS. the Administration finds that provisions
of the operating plan contained herein are permitted by
and in compliance with the Arkansas River Compact,
hereinafter referred to as the Compact; and the Rules and
Regulations; and the Bylaws adopted by the Administra-
tion;
NOW THEREFORE, BE IT RESOLVED that the
Administration approves and adopts the following oper-
ating plan:
1. Definitions:
A. “Period of winter storage” consists of the period
of time commencing on November | of each year
O
App. 108
and continuing to the first exhaustion of conser-
vation storage during the compact year.
“Summer storage season” shall be the period of
time commencing at the first exhaustion of con-
servation storage and continuing to and includ-
ing the next succeeding October 31.
“Inflows” include all the normal accretions into
John Martin Reservoir, measured or otherwise,
including river flow but not including deliveries
into the permanent pool or deliveries of other
water as subsequently defined herein.
“Conservation storage” is water stored in the
conservation pool that, but for the adoption of
this resolution, would have comprised of the ben-
efits arising from the construction of John Martin
Reservoir.
“Other water” for regulation by John Martin Res-
ervoir is water delivered into the accounts estab-
‘lished in Section III, herein, and delivered under
the authority of pre-Compact Colorado water
rights. Deliveries of other water are permitted to
gain increased utilization and greater beneficial
use.
“Compact year” is the water accounting year of
the Administration; it commences on November 1
of each year and extends to and includes the next
succeeding October 31.
Except as provided herein, all words and terms
used in this resolution have the meaning pre-
scribed in Compact Article [II
App. 109
Operating Principles:
A.
Period of Winter Storage
All inflows into John Martin Reservoir during a
period of winter storage shall accrue to conser-
vation storage. Conservation storage shall be
released into the accounts specified in Subsec-
tion II D beginning at the first request for release
after March 31 of account water by a Colorado
Water District 67 ditch or by Kansas or beginning”
at 8:00 a.m. on April 7, whichever occurs first.
Summer Storage Season -
(1) When a runoff event occurs during the sum-
mer storage season, such that inflows into
John Martin Reservoir are expected to
exceed then existing irrigation requirements
of the ditches in Colorado Water District 67
by at least 1,000 acre-feet, then the gates on
John Martin Reservoir shall be closed com-
mencing conservation storage except for
releases of account water pursuant to Sub-
section II E, herein.
(2) The ditches in Colorado Water District 67
will be removed from the Colorado priority
system when the sum of the flows of the
Arkansas River at the Las Animas gaging
station and the Purgatoire River at the Las
Animas gaging station, exclusive of sepa-
rate deliveries of other water under Section
lil, herein, indicates that conservation stor-
age will occur.
(3) All inflows entering said reservoir during a
period of conservation storage in the sum-
mer storage season shall accrue to conserva-
tion storage. Conservation storage shall be
App. 110
released into the accounts specified in Sec-
tion Il D beginning at the first request for
release of account water by a Colorado
Water District 67 ditch or by Kansas or
beginning 48 hours after commencement of
conservation storage, whichever occurs
first.
C. Exhaustion of Conservation Storage -
(1)
(2)
For the purposes of Compact Article V F,
the conservation pool shall be deemed
exhausted whenever conservation storage
has been completely released into the
accounts. When this occurs, Colorado shall
administer the decreed rights of water users
in Colorado Water District 67 as against
each other and as against all rights now or
hereafter decreed to water users diverting
upstream from John Martin Dam on the
basis of relative priorities in the same man-
ner in which their respective priority rights
were administered before John Martin Res-
ervoir began to operate and as though John
Martin Dam had not been constructed.
However, during these times, inflows shall,
to the extent practical, be measured and
released from the reservoir without tempor-
ary storage or averaging flows, and conser-
vation storage may not be accumulated nor
may storage in the accounts be increased
except by deliveries of other water under
Section II], herein.
Administration in Colorado under decreed
priorities shall be initiated so that ditches
upstream from John Martin Reservoir shall
deliver to the priorities of Colorado Water
District 67 ditches water at the Arkansas
App. 111
River at the Las Animas gaging station coin-
cident with the exhaustion of the conserva-
tion storage when taking the flow of all
waters, including that of the Purgatoire
River, into appropriate consideration.
D. Release into the Accounts -
(1) When conser vation storage is being released
into the accounts according to the provi-
sions of Subsections II A or II B, herein, it
shall be released at the total rate of 1,000 cfs.
However, when conservation storage
exceeds 20,000 acre-feet, it shall be released
at the total rate of 1,250 cfs.
(2) Releases of conservation storage shall be
into accounts and said releases shall be
apportioned 60 percent for the accounts of
the Colorado Water District 67 ditches and
40 percent for the Kansas account.
(3) The releases for the Colorado Water District
67 ditches shall be distributed into individ-
ual accounts according to the following per-
centages:
gg PPPPT TTT TTT ire 9.90 percent
MED nb ecncsseecedesdcctcens 2.30 percent
PTI so vc ccccccccccccsccccuves 49.50 percent
BE ck eccvrvercorecduseewen 19.80 percent
Perr rr rrr re Terre 1.30 percent
PE oh dn cccscvccesecssconcs 2.40 percent
Pe Be GUGIO og cc vcccccvescas 5.10 percent
ERP ETT PORT eT ree 8.50 percent
SRG = GOOG 2. cnn s cc ccccee 1.20 percent
E. Releases Out of Accounts -
(1) Kansas and the various Colorado ditches
may demand the release of water contained
(2)
(3)
(4)
(5)
App. 112
in their respective accounts, including those
established in Section III herein, at any time
at whatever rates they desire.
Releases of water from the accounts, includ-
ing those established in Section III herein,
may be made simultaneously with releases
from conservation storage into the accounts.
However, such simultaneous releases can-
not create deficits in those accounts.
All such releases of account water from
John Martin Reservoir to Colorado water
users are subject to transit losses between
John Martin Dam and the point of diversion
from the Arkansas River, as determined by
the Colorado Division Engineer, and the
transit losses shall be borne by such
releases.
Releases of Kansas account water shall be
measured at the Stateline as provided in
Compact Article V E (3) allowing appropri-
ate arrival times. If transit losses occur,
those losses shall be determined by the Col-
orado Division Engineer and a representa-
tive of the Kansas Division of Water
Resources and shall be replenished from the
Kansas transit loss account. In the event
that such losses at the end of the delivery
are greater than the total in the Kansas tran-
sit loss account, then the deficit shall be
made up from the next available transfers of
other water under Subsection IIf D.
The water users and the responsible officials
of both Colorado and Kansas. shall do their
utmost to achieve maximum beneficial use
including calling for deliveries of Kansas
App. 113
account water during reasonable and favor-
able river conditions. When transit losses
are deemed by the Colorado Division Engi-
neer to be excessive, he shall so advise the
receiving entity. Conversely, when river
conditions are favorable for a delivery to
Kansas, he shall so advise the Kansas Water
Commissioner.
Evaporation charges shall be made against water
stored in the accounts, including those estab-
lished in Section IIL, herein, and the Kansas tran-
sit loss account, using formulas and procedures
approved by the Colorado Division Engineer
and a representative of the Kansas Division of
Water Resources and using, when available, pan
evaporation data provided by the Corps of Engi-
neers. The evaporation charges shall be prorated
amongst conservation storage and the accounts
according to the amounts in them.
In the event that runoff conditions occur in the
Arkansas River basin upstream from John Martin
Reservoir. that cause water to spill physically
over the project's spillway, then water stored in
the permanent pool in excess of 10,000 a.f. shall
spill before the accounts granted in Subsection
Ill A, B, and C, which shall spill before the
accounts granted in Section II, which shall spill
before the Kansas Transit Loss Account, all of
which shall spill before the conservation pool
water. The amount of spill from the accounts
shall be prorated amongst them according to the
amounts in them at the beginning of spill. Dur-
ing times of spill, the permanent pool shall
occupy flood control space as provided in the
Administration’s Resolution of August 14, 1976,
and Public Law 89-298.
App. 114
Ill. Other Water for Regulation by John Martin Reser-
voir:
A.
The Amity may store such water as it could
otherwise divert from the Arkansas River for
storage in the Great Plains Reservoir system in
its account granted in Section II, herein. This
water will be in addition to water released into
the Amity account under Section II, herein.
An account for the Fort Lyon Canal is hereby
granted in John Martin Reservoir for agri-
cultural purposes only. The Fort Lyon Canal
may deliver water into said account under an
approved Pueblo winter storage plan subject to
the limitations that total quantity in the account
at any time cannot exceed 20, 000 acre-feet and
that the delivery cannot include wate’ that oth-
erwise would have accumulated in conservation
storage. The Fort Lyon may use water in this
account for exchange with existing priorities.
However, this account shall not be used in any
manner to increase the permanent recreation
pool, either by. exchange, transfer, change of
use, or otherwise. In the event that water accu-
mulated in this account has not been completely
released by the end of the compact year, ttn
that water shall become conservation storage
controlled by Subsection II A, herein.
An account for the Las Animas Consolidated
Canal Company is hereby granted in John Mar-
tin Reservoir for agricultural purposes only. The
las Animas Consolidated Canal Company may
deliver water into said account under an
approved Pueblo winter storage plan subject to
the limitations that total quantity in the account
at any time cannot exceed 5,000 acre-feet and
App. 115
that the delivery cannot include water that oth-
erwise would have accumulated in conservation
storage. The Las Animas Consolidated may use
water in this account for exchange with existing
priorities. However, this account shall not be
used in any manner to increase the permanent
recreation pool, either by exchange, transfer,
change of use, or otherwise. In the event that
water accumulated in this account has not been
completely released by the end of the compact
year, then that water shall become conservation
storage controlled by Subsection II A.
Thirty-five percent of all water deliveries to
John Martin Reservoir, under Subsections III A,
Ill B, and III C, herein, during any compact year
shal] be transferred into the accounts for Kansas
transit losses, for Kansas, and for Colorado
Water District 67 ditches at the time of delivery
in the following manner: First, transfers from
deliveries shall make up deficits, if any, in the
Kansas transit loss account which result from
Subsection I] E.(4), herein, and shall then also
fill the said Kansas transit loss account to the
amount of 1,700 acre-feet. Then, of all such
water delivered in excess of this specified
amount, 11 percent of those deliveries shall be
transferred to the Kansas account and 24 per-
cent of those deliveries shall be transferred to
the account of the Colorado Water District 67
ditches. Transfers into the accounts for Colo-
rado Water District 67 ditches shall be distrib-
uted according to the percentages in Subsection
II D (3), herein; except the Amity shall not share
in distributions of deliveries under Subsection
Ill A, herein.
IV.
VI.
VIL.
App. 116
A permanent recreation pool has been authorized by
the August 14, 1976, Resolution of the Administra-
tion. For purposes of the Resolution, this permanent
recreation pool shall be considered a separate
account and deliveries made to it are not subject to
the transfers provided in Subsection III D, herein.
The permanent recreation pool will, however, stand
its pro rata share of evaporation as provided in the
Administration’s Resolution of August 14, 1976.
In the event of injury either to entities in Colorado or
to Kansas, there shall be restitution from the first
account water thereafter available from the entity
receiving improper benefits. The engineering com-
mittee shall quantify such injury, subject to the
approval of the Administration
Adoption of this resolution does not prejudice the
ability of Kansas or of any Colorado ditch to object
or to otherwise represent its interest in present or
future cases or controversies before the Administra-
tion or in a court of competent jurisdiction.
This agreement shall be, and continue to be, in full
force and effect from and after the date of execution
of this resolution until March 31, 1981, and year to
year thereafter subject to the following provisions:
A. Not later than December | of each year, the
Colorado Division Engineer shall make an
accounting of the operation under this resolu-
tion for the previous compact year available to
the Operations Committee of the Administra-
tion and to interested parties. Either Colorado
or Kansas, through its compact delegation, may
then terminate this resolution on the next suc-
ceeding March 31 by giving written notice to
the Administration by February | of the same
compact year.
VIII.
App. 117
B. In the event this resolution is so terminated,
then entities storing water in accounts prior to
such termination may utilize such water during
the next irrigation season under the provisions -
of this resolution. Water not utilized by the
following November 1 shall revert to conserva-
tion storage.
This resolution supersedes ir its entirety the agree-
ment of December 12, 1978, concerning Amity-
Great Plains water and the Resolution concerning
an Interim Operating Plan for John Martin Reser-
voir entered into on March 21, 1980. All water
delivered into the accounts established under the
authorities of these two resolutions shall be for-
warded and credited, without deductions, to the
accounts for the same entities that are established
in this operating plan.
Entered this 24th day of April, 1980, by special telephonic
meeting, and revisions approved on May 10, 1984 and
December 11, 1984.
/s/ Frank G. Cooley /s/ James G. Rogers
Chairman Secretary
Arkansas River Arkansas River
Compact Compact
Administration é.dministration
/s/ J. William McDonald /s/ David L. Pope
Colorado Member | Kansas ember
Arkansas River Arkansas River
Compact Compact
Administration Administration
APPENDIX - Exhibit 11
Kansas Exhibit 111*** “Effects of Post-Compact Pumping
and the Winter Water Program on Stateline Flows”
App. 118 +
PLAINTIFF'S EXHIBIT 111°**
Case No. 105
EFFECTS OF POST-COMPACT PUMPING AND THE WINTER WATER PROGRAM
ON STATELINE FLOWS Revised 2/23/92
Institutional Conditions Depletions of Depletions Less Accretions - Depletions of
- Stateline Flows of Stateline Flows Usable Stateline Flows
Pumping Winter 1980 Trans 1950 - 1985 1950 - 1985 1950 - 1985
Water Mtn | (thousand acre - feet) (thousand acre - feet) (thousand acre - feet)
Combined H H Cc H 650 608 489
Effects Cc Cc Cc O
Historical H H H H 852 825 620
Pumping Cc H H H
Winter H H Cc H 53 17 40
Water H S Cc H |
Future P . Cc ©) 1150 1146 783
Pumping Cc C Cc O
H = Historical Conditions
C = Compact Conditions
O = No transmountain deliveries
P = Projected (future) pumping
APPENDIX - Exhibit 12
Order to Correct Record re Defendant’s Exhibits,
filed January 5, 1994
App. 119
IN THE SUPREME COURT OF THE UNITED STATES
STATE OF KANSAS,
Plaintiff, No. 105 Original
* October Term,
STATE OF COLORADO, _
Defendant,
and
UNITED STATES OF AMERICA,
Defendant-Intervenor.
me ee ee ee ee ee ee ee
ORDER TO CORRECT RECORD
RE DEFENDANT’S EXHIBITS
(Filed Jan. 5, 1994)
The State of Colorado, the State of Kansas, and the
United States have filed a Stipulation to Correct Record
Re Defendant's Exhibits. Based on the Stipulation, which
is hereby approved, the record of proceedings held before
Special Master Arthur L.. Littleworth is corrected as fol-
lows:
1. The record of proceedings for Monday, April 29,
1991, Volume LXXI (71) at page 4, line 19, is hereby
corrected to refer to Defendant's Exhibit 88a, b, and c, not
Defendant’s Exhibit 168a, b, and c.
2. The record of proceedings for Monday, April 29,
1991, Volume LXXI (71) at page 23, lines 21-22, is hereby
corrected to state that Defendant's Exhibit 88a, b, and c,
not Defendant's Exhibit 168a, b, and c, was admitted. The
App. 120
summary of the final status of the Colorado exhibits shall
reflect that Defendant's Exhibit 88a, b, and c was admit-
ted on April 29, 1991, and shall not include Defendant's
Exhibit 168.
3. The record of proceedings for Wednesday, April
17, 1991, Volume LXIV (64) at page 66, line 23, is hereby
corrected to refer to Defendant's Exhibit 679*, not Defen-
dant’s Exhibit 689*. The summary of the final status of the
Colorado exhibits shall not include Defendant’s Exhibit
689".
DATE: Jan. 5, 1994.
/s/ Arthur L. Littleworth
Acthur L. Littleworth
Special Master
App. 121
PROOF OF SERVICE BY MAII.
STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
I am a citizen of the United States and a resident of
the County aforesaid; | am over the age of eighteen years
and not a party to the within entitled action; my business
address is Best, Best & Krieger, 3750 University Avenue,
400 Mission Square, Riverside, California 92502.
I am readily familiar with Best, Best & Krieger's
practice for collecting and processing correspondence for
mailing with the United States Postal Service. Under that
practice, all correspondence is deposited with the United
States. Postal Service the same day it is collected and
processed in the ordinary course of business.
On January 5, 1994, I served the within ORDER TO
CORRECT RECORD RE DEFENDANT’S EXHIBITS by
placing a copy of the document in a separate envelope for
each addressee named below and addressed to each such
addressee as follows:
John B. Draper
Montgomery & Andrews
325 Paseo de Peralta
P.O. Box 2307
Santa Fe, New Mexico 87504-2307
David W. Robbins, Esq.
Hill & Robbins
100 Blake Street Building
1441 Eighteenth Street
Denver, Colorado 30202
App. 122
Patricia Weiss, Esq.
U.S. Department of Justice
Land & Natural Resources Division
General Litigation Section
P.O. Box 663
Benjamin Franklin Station
Washington, D.C. 20044-0663
Andrew F. Walch, Esq.
James J. DuBois, Esq.
U.S. Department of Justice
General Litigation Section
999 18th Street, Suite 945
Denver, Colorado 80202
On January 5, 1994, at the office of Best, Best &
Krieger, 3750 University Avenue, 400 Mission Square,
Riverside, California 92502, | sealed and placed each
envelope for collection and deposit by Best, Best &
Krieger in the United States Postal Service, following
ordinary business practices.
{ declare under penalty of perjury under the laws of
the State of California, that the foregoing is true and
correct.
Executed on January 5, 1994, at Riverside, California.
/s/ Sandra L. Simmons
Sandra L. Simmons
APPENDIX - Exhibit 13
Order Regarding Plaintiff's
Exhibits, filed March 11, 1994
App. 123
IN THE SUPREME COURT OF THE UNITED STATES
STATE OF KANSAS, )
a )
Piston, ) No. 105, Original
vs. ) October Term 1985
STATE OF COLORADO,
Defendant, )
and )
)
)
)
)
)
UNITED STATES OF
AMERICA,
Defendant-Intervenor.
ORDER REGARDING PLAINTIFF’S EXHIBITS
(Filed Mar. 11, 1994)
The State of Kansas, the State of Colorado, and the
United States, by their respective counsel, have filed a
Stipulation Regarding Plaintiff's Exhibits. Based on the
Stipulation, which is hereby approved, the following is
hereby ordered:
1. In the record of proceedings held before Special
Master Arthur L. Littleworth, Volume 41 (January 16,
1991), at page 6, line 10, is in error in listing Plaintiff's
Exhibit 61* and should have listed Plaintiff's Exhibit 61.
The exhibits listed on page 6 were subsequently admitted
on page 17, at lines 7-10. Accordingly, Volume 41 of the
record of proceedings is hereby corrected as stated above,
with the effect that the record of proceedings shall reflect
that Plaintiff's Exhibit 61 is admitted. The summaries of
the final status of the Kansas Exhibits shall reflect that
App. 124
Plaintiff’s Exhibit 61 was admitted and that Plaintiff’s
Exhibit 61* was not admitted.
2. In the record of proceedings neld before the Spe-
cial Master, Volume 31 (November 27, 1990), at pages 43,
56, 57, 58, 61, 66, 72, 74, 75, 76, 77, 78, and 80, is in error
with regard to references to Plaintiff's Exhibit 358, which
references should be to Plaintiff’s Exhibit 358*. Accord-
ingly, Volume 31 of the record of proceedings is hereby
corrected to show that Plaintiff's Exhibit 358* was
referred to on the pages listed above and was admitted.
The summaries of the final status of the Kansas Exhibits
shall reflect that Plaintiff's Exhibit 358* was admitted and
shall not include Plaintiff’s Exhibit 358.
3. In the record of proceedings held before the Spe-
cial Master, Volume 35 (December 17, 1990), at page 116
(line 11) and Volume 36 (December 18, 1990), at pages 5,
64 (line 12) and 124 (line 28), are in error with regard to
references to Plaintiff's Exhibit 371, which references
should be to Plaintiff's Exhibit 371*. Accordingly, Vol-
umes 35 and 36 of the record of proceedings are hereby
corrected to show that Plaintiff's Exhibit 371* was
referred to and admitted on the pages and lines listed
above. The summaries of the final status of the Kansas
Exhibits shall reflect that Plaintiff’s Exhibit 371* was
admitted and that Plaintiff’s Exhibit 371 was discussed
but not admitted. |
4. Plaintiff's Exhibit 389°** is hereby admitted into
evidence as conforming to the large version of the map
entitled “Ditch Service Areas for 1990” testified to by Mr.
Frost and discussed by counsel in the record of proceed-
ings before the Special Master in Volume 27 (November
App. 125
13, 1990) at pages 76-81. Plaintiff's Exhibit 389*, the hand-
held version discussed in the same transcript at pages
78-81, shall remain lodged with the Court, but not admit-
ted. Therefore, in the record of proceedings before the
Special Master, Volume 27, at pages 19, 46, 76 and 82,
shall be modified with regard to references to Plaintiff's
Exhibit 389, which references shall be to Plaintiff’s
Exhibit 389**. The summaries of the final status of the
Kansas exhibits shall reflect that Plaintiff’s Exhibit 389**
was admitted and shall reflect that Plaintiff’s Exhibit 389*
was the subject of testimony, but not admitted, and shall
not include Plaintiff's Exhibit 389.
5. In the record of proceedings held before the Spe-
cial Master, Volume 27 (November 13, 1990), at pages 19
and 46, is in error with regard to references to Plaintiff's
Exhibit 394, which references should be to Plaintiff’s
Exhibit 394*. Accordingly, Volume 27, at pages 19 and 46,
is hereby corrected to refer to Plaintiff's Exhibit 394*. The
summaries of the final status of the Kansas Exhibits shall
reflect that Plaintiff's Exhibit 394* was the subject of
testimony, but not admitted, and shall not include Plain-
_ tiff’s Exhibit 394.
6. In the fecord of proceedings held before the Spe-
cial Master, Volume 27 (November 13, 1990), at pages 19
and 46, is in error with regard to references to Plaintiff's
Exhibit 395, which references should be to Plaintiff’s
Exhibit 395*. Accordingly, Volume 27, at pages 19 and 46,
is hereby corrected to refer to Plaintiff's Exhibit 395*. The
summaries of the final status of the Kansas Exhibits shall
reflect- that Plaintiff's Exhibit 395* was the subject of
testimony, but not admitted, and shall not include Plain-
tiff’s Exhibit 395.
App. 126
7. In the record of proceedings held before the Spe-
cial Master, Volume 27 (November 13, 1990), at pages 19
and 46, is in error with regard to references to Plaintiff‘s
Exhibit 39/7, which references should be to Plaintiff's
Exhibit 397*. Accordingly, Volume 27, at pages 19 and 46,
is hereby corrected to refer to Plaintiff's Exhibit 397*. The
summaries of the final status of the Kansas Exhibits shall
reflect that Plaintiff's Exhibit 397* was the subject of
testimony, but not admitted, and shal} not include Plain-
tiff’s Exhibit 397.
8. In the record of proceedings held before the Spe-
cial Master, Volume 27 (November 13, 1990), at pages 19
and 46, is in error with regard to references to Plaintiff’s
Exhibit 398, which references should be to Plaintiff’s
Exhibit 398*. Accordingly, Volume 27, at pages 19 and 46,
is hereby corrected to refer to Plaintiff’s Exhibit 398*. The
summaries of the final status of the Kansas Exhibits shall
reflect that Plaintiff's Exhibit 398* was the subject of
testimony, but not admitted, and shall not include Plain-
tiff’s Exhibit 398.
9. In the record of proceedings held before the Spe-
cial Master, Volume 27 (November 13, 1990), at pages 19
and 46, is in error with regard to references to Plaintiff's
Exhibit 399, which references should be to Plaintiff's
Exhibit 399*. Accordingly, Volume 27, at pages 19 and 46,
is hereby corrected to refer to Plaintiff's Exhibit 399°. The
summaries of the final status of the Kansas Exhibits shall
reflect that Plaintiff’s Exhibit 399% was the subject of
testimony, but not admitted, and shall not include Plain-
tiff’s Exhibit 399.
App. 127
10. In the record of proceedings held before the
Special Master, Volume 27 (November 13, 1990), at pages
19 and 46, is in error with regard to references to Plain-
tiff’s Exhibit 400, which references should be to Plaintiff's
Exhibit 400*. Accordingly, Volume 27, at pages 19 and 46,
is hereby corrected to refer to Plaintiff's Exhibit 400". The
summaries of the final status of the Kansas Exhibits shall
reflect that Plaintiff’s Exhibit 400* was the subject of
testimony, but not admitted, and shall not include Plain-
tiff’s Exhibit 400.
11. In the record of proceedings held before the
Special Master, in Volumes 27 and 28 (November 13 and
14, 1990, respectively), all pages that refer to, and page 95
“of Volume 27 that admitted, Plaintiff’s Exhibit 401 are in
error and should have referred to and admitted Plaintiff's
Exhibit 401*. Accordingly, Volumes 27 and 28 of the
record of proceedings are hereby corrected to refer to
Plaintiff's Exhibit 401*. The summaries of the final status
of the Kansas exhibits shall reflect that Plaintiff’s Exhibit
401* was admitted and shall not include Plaintiff's
Exhibit 401.
12. In the record of proceedings held before the
Special Master, in Volume 27 (November 13, 1990), all
pages that refer to, and page 102 that admitted, Plaintiff's
Exhibit 402 are in error and should have referred to and
admitted Plaintiff's Exhibit 402*. Accordingly, Volume 27
of the record of proceedings is hereby corrected to refer
to Plaintiff’s Exhibit 402*. The summaries of the final
status of the Kansas Exhibits shall reflect that Plaintiff's
Exhibit 402* was admitted and shall not include Plain-
tiff’s Exhibit 402.
App. 128
13. In the record of proceedings held before the
Special Master, in Volume 27 (November 13, 1990), all
pages that refer to, and page 133 that admitted, Plaintiff's
Exhibit 403 are in error and should have referred to and
admitted Plaintiff’s Exhibit 403*. Accordingly, Volume 27
of the record of proceedings is hereby corrected to refer
to Plaintiff's Exhibit 403*. The summaries of the final
status of the Kansas Exhibits shall reflect that Plaintiff’s
Exhibit 403* was admitted and shall not include Plain-
tiff’s Exhibit 403.
14. In the record of proceedings held before the
Special Master, in Volume 27 (November 13, 1990), all
pages that refer to, and page 137 that admitted, Plaintiff's
Exhibit 404 are in error and should have referred to and
admitted Plaintiff’s Exhibit 404*. Accordingly, Volume 27
of the record of proceedings is hereby corrected to refer
to Plaintiff’s Exhibit 404*. The summaries of the final
status of the Kansas Exhibits shall reflect that Plaintiff's
Exhibit 404* was admitted and shall not include Plain-
tiffs Exhibit 404.
15. In the record of proceedings held before the
Special Master, in Volume 27 (November 13, 1990), all
pages that refer to, and page 140 that admitted, Plaintiff's
Exhibit 406 are in error and should have referred to and
admitted Plaintiff’s Exhibit 406*. Accordingly, Volume 27
of the record of proceedings is hereby corrected to refer
to Plaintiff's Exhibit 406*. The summaries of the final
status of the Kansas Exhibits shall reflect that Plaintiff's
Exhibit 406* was admitted and shall not include Plain-
tiff’s Exhibit 406.
App. 129
16. In the record of proceedings held before the
Special Master, in Volumes 27, 28 and 29 (November 13,
14 and 15, 1990, respectively), all pages that refer to, and
page 56 of Volume 27 that admitted, Plaintiff’s Exhibit
471 are in error and should have referred to and admitted
Plaintiff’s Exhibit 471*. Accordingly, Volumes 27, 28 and
29 of the record of proceedings are hereby corrected to
refer to Plaintiff’s Exhibit 471*. The summaries of the
final status of the Kansas Exhibits shall reflect that Plain-
tiff’s Exhibit 471* was admitted and shall not include
Plaintiff's Exhibit 471.
DATED: March 11, 1994.
/s/ Arthur L. Littleworth
Arthur L. Littheworth
Special Master
App. 130
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
I am a citizen of the United States and a resident of
the County aforesaid; I am over the age of eighteen years
and not a party to the within entitled action; my business
address is Best, Best & Krieger, 3750 University Avenue,
400 Mission Square, Riverside, California 92502.
I am readily familiar with Best, Best & Krieger’s
practice for collecting and processing correspondence for
mailing with the United States Postal Service. Under that
practice, all correspondence is deposited with the United
States Postal Service the same day it is collected and
processed in the ordinary course of business.
On March 11, 1994, I served the within. ORDER
REGARDING PLAINTIFF’S EXHIBITS by placing a
copy of the document in a separate envelope for each
addressee named below and addressed to each such
addressee as follows:
John B. Draper
Montgomery & Andrews
325 Paseo de Peralta
P.O. Box 2307
Santa Fe, New Mexico 87504-2307
David W. Robbins, Esq.
Hill & Robbins
100 Blake Street Building
1441 Eighteenth Street
Denver, Colorado 80202
App. 131
Patricia Weiss, Esq.
U.S. Department of Justice
Land & Natural Resources Division
General Litigation Section
P.O. Box 663
Benjamin Franklin Station
Washington, D.C. 20044-0663
James J. DuBois, Esq.
U.S. Department of Justice
General Litigation Section
999 18th Street, Suite 945
Denver, Colorado 80202
On March 11, 1994, at the office of Best, Best &
Krieger, 3750 University Avenue, 400 Mission Square,
Riverside, California 92502, I sealed and placed each
envelope for collection and deposit by Best, Best &
Krieger in the United States Postal Service, following
ordinary business practices.
I declare under penalty of perjury under the laws of
the State of California, that the foregoing is true and
correct.
Executed on March 11, 1994, at Riverside, California.
/s/ Sandra L. Simmons
Sandra L. Simmons _
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.