Exception — Kansas v. Colorado

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Supreme Court of the United States

October Term, 1985

STATE OF KANSAS,

Plaintiff,

STATE OF COLORADO,

Defendant,

UNITED STATES OF AMERICA,

Defendant-Intervenor.

COLORADO’S EXCEPTIONS TO THE

REPORT OF THE SPECIAL MASTER AND

BRIEF IN SUPPORT THEREOF

Gace Norton

Attorney General of Colorado

STEPHEN K. ERKENBRACK

Chief Deputy Attorney General

Timotuy M, Tymkovicu

Solicitor General

Davip W. Rossins

Special Assistant Attorney

General

Counsel of Record

Dennis M. MONTGOMERY

Special Assistant Attorney

General

Hn & Roses, P.C.

1441 - 18th Street, #100

Denver, Colorado 80202

Telephone: 303-296-8100

No. 105, Original

In The

Supreme Court of the United States

October Term, 1985

STATE OF KANSAS,

Plaintiff,

STATE OF COLORADO,

Defendant,

UNITED STATES OF AMERICA,

Defendant-Intervenor.

_ EXCEPTIONS TO THE

REPORT OF THE SPECIAL MASTER

The State of Colorado respectfully excepts to the Report

of Special Master Arthur L. Littleworth dated July, 1994, as

follows:

1. Colorado excepts to the Master’s findings that Kan-

sas was not guilty of inexcusable delay in making its well

claim and that Colorado was not prejudiced by Kansas’

failure to press its claim earlier.

2. Colorado excepts to the Master’s ruling that, under

Article IV-D of the. Arkansas River Compact, pre-compact

wells in Colorado are limited to pumping the highest

amount pumped in the years during which the Compact was

negotiated and the Master’s finding that the highest amount

of such pumping was 15,000 acre-feet per year.

3. Colorado excepts to the Master’s ruling that

increases in usable Stateline flows resulting from the Operat-

ing Plan for John Martin Reservoir adopted by the Arkansas

River Compact Administration in 1980 were “separately bar-

gained for” and, therefore, should not offset depletions

caused by post-compact well pumping in Colorado.

4. Colorado excepts to the Master’s ruling that Kansas

need only meet the “preponderance of the evidence” test

applicable to ordinary civil litigation to prove a breach of

Article IV-D of the Arkansas River Compact.

Respectfully submitted,

Gate Norton

Attorney General of Colorado

STEPHEN K. ErKENBRACK

Chief Deputy Attorney General

Timotuy M. TymMKovict

Solicitor General

Davip W. Rossins

Special Assistant Attorney

General

Counsel of Record

Dennis M. MONTGOMERY

Special Assistant Attorney

General

Hitt. & Rosains, P.C.

1441 - 18th Street, #100

Denver, Colorado 80202

Telephone: 303-296-8100

Attorneys for Defendant

State of Colvrado

No. 105, Original!

In The

Supreme Court of the United States

October Term, 1985

STATE OF KANSAS,

Plaintiff,

STATE OF COLORADO,

Defendant,

UNITED STATES OF AMERICA,

Defendant-Intervenor.

BRIEF IN SUPPORT OF COLORADO’S EXCEPTIONS

QUESTIONS PRESENTED

1. Whether the defense of laches is applicable

against a state in a controversy between states in this

Court.

2. Whether Kansas inexcusably delayed in bringing

a claim for damages against Colorado for breach of the

Arkansas River Compact from post-compact well pump-

ing in Colorado and whether Colorado was prejudiced by

Kansas’ delay.

3. Whether Article IV-D of the Arkansas River Com-

pact limits pre-compact wells in Colorado to pumping the

highest amount pumped during the years when the Com-

pact was negotiated; and, if so, whether the Special Mas-

ter was correct in determining that the highest amount

pumped during those years was 15,000 acre-feet per year.

4. Whether increases in usable Stateline flows

resulting from the Operating Plan for John Martin Reser-

voir adopted by the Arkansas River Compact Administra-

tion in 1980 should offset depletions caused by post-

compact well pumping in Colorado.

5. Whether the preponderance of the evidence stan-

dard applies in a controversy between states involving an

alleged breach of an interstate compact.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...............2+..e0eee- v

REPORT OF THE SPECIAL MASTER ..........-...

SOONG oon a sidw cru xeniidGunaesaeeeneee 1

ARKANSAS RIVER COMPACT ...........-0.00 000. 1

STATEMENT OF THE CASE............-....00000- 2

A. DESCRIPTION OF THE ARKANSAS RIVER

AMIDE... «sx0usevecadnacauaccae eee 3

B. HISTORY OF IRRIGATION AND WELL DEVEL-

OPMENT IN THE ARKANSAS RIVER BASIN.. 6

COBURED 00.0 sv cnnscvesececcdssenseseeeeneae 6

a eee re em ee 9

Ce. CERRO V. CARs cc ccccncssessscnseves 13

D. THE ARKANSAS RIVER COMPACT........... 14

ie Be 17

SUGRRART GC CFRIE «os oc cccccincccctiseeess 23

RETIN oc kv veces ccnsnssessciscssususeeeneel 24

I. KANSAS’ CLAIM FOR DAMAGES SHOULD BE

BE Re 24

A. LACHES CAN BE APPLIED AGAINST A

STATE IN A CONTROVERSY BETWEEN

DUCED 0.0 00 ncesenceekesenteebuatesnentat 26

B. KANSAS WAS GUILTY OF LACHES IN

MAKING ITS WELL CLAIM .............. 32

1. Kansas Knew or Should Have Known of

the Facts Giving Rise to Its Claim by

DED 60-6 dacsdeue betes eek eee 36

TABLE OF CONTENTS ~ Continued

Page

2. Kansas Has No Valid Excuse for its

BME GOI occ ccccccccccccccccesess 48

3. Colorado Was Prejudiced by Kansas’

PE EI, cn nncccccccesccsecces 53

a. Evidefitiary Prejudice.............. 55

D. Gememeee Peahudier................ 62

4. Laches Should Bar a Claim for Damages

until Kansas Made a Request for an

Investigation in 1985.:................ 63

ARTICLE IV-D OF THE ARKANSAS RIVER

COMPACT DOES NOT LIMIT PRE-COMPACT

WELLS IN COLORADO TO PUMPING 15,000

ACRE-FEET PER YEAR AFTER THE COMPACT

BECAME EPPECTIVE..........c.ccccccccccseee 64

A. PRE-COMPACT WELLS ARE NOT LIM-

ITED TO PUMPING THE HIGHEST

AMOUNT PUMPED IN THE YEARS DUR-

ING WHICH THE COMPACT WAS NEGO-

EERE Wa 6564665 600.0.0 96660000606 .000 66

B. THE USGS ESTIMATES FOR THE 1940S

ARE NOT SUPPORTED BY POWER DATA

AND THE MASTER’S REASONS FOR

ACCEPTING THOSE ESTIMATES ARE

EY Cs ca soetesceveesscccess 73

1. Experts Relied on the 19°70 USGS Report

2. Major’s Defense of the USGS Estimates.. 75

SS ee re 77

TABLE OF CONTENTS —- Continued

ND ow

Page

COP CGNE novos kccccvescoscccvnvenas 77

DOGS THUG 6c nc ccascccsccveccces 78

Basis for the Colorado Estimates ...... 80

Virtually Nothing Is Known about the

Power Figures, but the Pumpage Esti-

mates Have Been Accepted............ 81

Lack of Discussion of Pumping During

the Compact Negotiations............. 82

Concerns With Colorado’s Estimates... 84

IV. INCREASES IN STATELINE FLOWS RESULT-

ING FROM THE 1980 OPERATING PLAN

WERE NOT “SEPARATELY BARGAINED FOR”

AND SHOULD OFFSET DEPLETIONS TO

USABLE STATELINE FLOWS................. 85

V. KANSAS SHOULD BE REQUIRED TO PROVE

A BREACH OF THE COMPACT BY CLEAR

AND CONVINCING EVIDENCE ............. 91

CPOE Gb bb cede owtcvsgeeneeeeeuneebenneees 100

TABLE OF AUTHORITIES

Page

CASES

FEDFRAL

A.C. Aukerman Co. v. R.L. Chaides Const. Co., 960

Fee SY PN GRUUED < o cc cecenctsseccenccs passim

A.C. Aukerman v. Miller Formless Co., 693 F.2d 697

EC ed eae ee ann ck pees Rear iEee 63

Addington v. Texas, 441 U.S. 418 (1979) .............. 93

Advanced Hydraulics, Inc. v. Otis Elevator Co., 525

F.2d 477 (7th Cir.), cert. denied, 423 U.S. 869

ic kh ieCob deso6 005 bed nS CK EORN CC ONES TONE KAaes 34

Alabama v. Arizona, 291 U.S. 286 (1934).............. 92

Benedict v. New York, 250 U.S. 321 (1919)......... 36, 44

Block v. North Dakota, 461 U.S. 273 (1983) ........ 24, 27

Brown v. County of Buena Vista, 95 U.S. 157 (1877) ..26, 53

City of New Albany v. Burke, 78 U.S. (11 Wall.) 96

gg Ror eT Ee rey eee eT CT eT ET Te 36, 44

Colorado v. Kansas, 320 U.S. 383 (1943) .......... passim

Colorado v. New Mexico, 459 U.S. 176 (1982) ...... 70, 98

Colorado v. New Mexico, 467 U.S. 310 (1984) ...... 33, 93

Connecticut v. Massachusetts, 282 U.S. 660 (1931)..... 99

Continental Coatings Corp. v. Metco, Inc., 464 F.2d

ft I ee ee ee eee 62

Costello v. United States, 365 U.S. 265 (1961) ......... 34

Gardner v. Panama R.R. Co., 342 U.S. 29 (1951) Jae ees 34

Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945) .... 29

TABLE OF AUTHORITIES - Continued

Gillons v. Shell Co. of Cal., 86 F.2d 600 (9th Cir.

1936), cert. denied, 302 U.S. 689 (1937)............. 27

Goodman v. McDonnell Douglas Corp., 606 F.2d 800

(8th Cir. 1979), cert. denied, 446 U.S. 913 (1980)

pits eded sundae éthdeuk deine aneubes 35, 53, 54

Guaranty Trust Co. v. United States, 304 U.S. 126

Ride é sda eeRh Meee LK OE 6s aNeoSs oh a6e 4008 25, 27

Gull Airborne Instruments, Inc. v. Weinberger, 694

oS fo fl lee OS

Herman & MacLean v. Huddleston, 459 U.S. 375

Cetin Re eee dee Geb hae Sa eh eKae ee 93, 94

Hinderlider v. La Plata River & Cherry Creek Ditch

ns cc en pup enh be saee enka 97

Holmberg v. Armbrecht, 327 U.S. 392 (1946)........ 34, 35

Htlinois v. Kentucky, 500 U.S. 380 (1991)........... 25, 31

In re Winship, 397 U.S. 358 (1970)..............0005- 93

Independent Bankers Assn. of America v. Heiman, 627

ee Gy I, oo o's pba abicbesed vedsenae¥ue 35

Indiana v. Kentucky, 136 U.S. 479 (1890)........... 24, 54

Jensen v. Western Irrigation & Mfg., Inc., 650 F.2d

Ff fs A errr errr eT Tree ee rrr 36

Kansas v. Colorado, 185 U.S. 125 (1902) ............ ‘ae

Kansas v. Colorado, 206 U.S. 46 (1907)........... 3, 9, 29

Massachusetts v. Missouri, 308 U.S. 1 (1939)....... 34, 97

Missouri v. Illinots, 200 U.S. 496 (1906) ... 25, 30, 92, 95

Naxon Telesign Corp. v. Bunker Ramo Corp., 517

F.Supp. 804 (N.D.II. 1981), aff'd, in part, 686 F.2d

1258 (1982)..... Liusbnsneedesskuddes sauseneeeceess 45

vii

TABLE OF AUTHORITIES —- Continued

Page

Nebraska v. os grey: 507 U.S. __, 113 S.Ct. 1689,

Ge Se SOF COU csv scccenecescecevevecss 30, 92

North Dakota v. Minnesota, 263 U.S. 365 (1923) .. 29, 92, 94

Ohio v. Kentucky, 410 U.S. 641 (1973)............. 25, 34

Pearson v. Central Hl. Light Co., 210 F2d 352 (7th

- 2 Perere OPPO TT TTT TT TT TTT TTT TET TL 45

Penn Mutual Life Ins. Co. v. City of Austin, 168 U.S.

<r eee kerr nk my Ha ee re 27

Potash Co. of America v, International Minerals &

Chemical Corp. 213 F.2d 153 (10th Cir. 1954)

36, 44, 45, 49

Ns 66.440 665.605 0000 600650400600 540400 E 04488 es 29

Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657

PPP rer ery rere reer rer 28, 29, 31

Rhode Island v. Massachusetts, 45 U.S. (4 How.) 591

RO NR a ARS Rie sat ae Ome aR .. 54

Russell v. Todd, 309 U.S. 280 (1940)...............5.. 34

Southern Pac. Co. v. Bogert, 250 U.S. 483 (1919)...... 34

Spallone v. United States, 493 U.S. 265 (1993)......... 96

Stone v. Williams, 873 F.2d 620 (2d Cir. 1989), cert.

dented, 493 U.S. 959 (1989)............... errr 34, 53

Studiengesellschaft Kohle v. Eastman Kodak Co., 616

F.2d 1315 (Sth Cir 1980), cert. denied, 449 US.

BOS QUE: bec vecweces -cocsseececor 34, 36, 44, 50, 53

Texas v. Florida, 306 U.S. 398 (1939) ........ Suttaawent 34

vill

TABLE OF AUTHORITIES - Continued

Texas v. New Mexico, 462 U.S. 554 (1983) ......... 15, 51

Texas v. New Mexico, 482 U.S. 124 (1987) ....28, 31, 51, 90

Texas v. New Mexico, No. 65, Original (Oct. Term

Gish LED NAEENTRAReL kaa esd debanedesennes 51

United States v. Hoar, 26 F.Cas. 329 (C.C.D.Mass.

SG oaks bee ree Kaede ON EMER ORDN ENERO ORSON EOS 27

United States v. Texas, 339 U.S. 707 (1950) ........... 95

Liniv. of Pittsburgh v. Champion Prod., Inc., 686 F.2d

1040 (3d.Cir.), cert. denied, 459 U.S. 1087 (1982) .... 63

Vermont v. New York, 417 U.S. 270 (1974)............ 34

Virginia v. West Virginia, 206 U.S. 290 (1907)...... 30, 95

Virginia v. West Virginia, 234 U.S. 117 (1914)...... 95, 96

Virginia v. West Virginia, 246 U.S. 565 (1918)......... 96

Washington v. Oregon, 297 U.S. 517 (1936)

Mehdi ceseaeessurakiedeswesenbaaceune 14, 25, 30, 92, 94

Weber v. Board of State Harbor Commissioners, 85

Sy SE chon csc a undekds uskedesdiesoarvouens 30

White v. Daniel, 909 F.2d 99 (4th Cir. 1990), cert.

denied, 501 U.S. 1260 (1991)................36, 42, 53

Young v. The Key City, 81 U.S. (14 Wall.) 653 (1872) .... 35

CoLorRaAbo

Black v. Taylor, 128 Colo. 449, 264 P.2d 502 (1953) .... 70

City of Colorado Springs v. Bender, 148 Colo. 458,

Se OU NE I 60 66a c sev cncdonve sassusess we

Fellhauer v. People, 167 Colo. 320, 447 P.2d 986

Re rrr rrr tery Tres ere err ere ae

TABLE OF AUTHORITIES —- Continued

Page

STATUTES

FEDERAL

Act of Aug. 16, 1962, Pub.L. No. 87-590, 76 Stat.

389 (1962).......... Eneeeadeaeeebaas, suaaneces 7

Arkansas River Compact, Act of May 31, 1949, 63

i iv iis bien e 6460666865 ee eoe ks ee

ee ee ee eee eeees sbeEs oN 77

ERE de ee nee a ER eae 77

Reclamation Development Act of 1974, Pub.L. No.

93-493, Title XI, § 1101, 88 Stat. 1497-98............ 7

United States Constitution, 28 U.S.C. § 1251{a)(1)..... 1

United States Constitution, Article III, Section 2,

ede OCU eee ede es Sie’ 4 oie os wun a wewe 1

COLORADO

Colo.Rev.Stat. § 37-60-10], ef sem... .....cccecccecsens 38

OTHER

2 McCormick on Evidence § 340 (3rd ed. J. Strong,

, ERS RGIS ieee Oe eR tite 96

Arkansas River Compkct: Hearing on H.R. 4151

Before the Subcomm. Gi Srrigation and Reclamation

of the House Comm. on Publ ‘Lands, 81st Cong.,

Ist Sess. (1949)......... at! nd cannianiedeadlk os 2,9

Arkansas River Compact: Hearing on S. 1448 Before

the Senate Comm. on Interior agd Insular Affairs,

ee cs "Ue GI GD os ccs icccecececeness 2

TABLE OF AUTHORITIES - Continued

Page

H. Kramer, Report to the Congress of the United

States on the Proposed Arkansas River Compact

Between Colorado and Kansas (1949)..............5.. 5

1. Brownlie, Principles of Public International Law

ee | POPPETTPETUTETeTIT ere eer errr eee 26, 31

J. Breitenstein, The Law of the Arkansas River......... 15

1 Oppenheim’s International Law (Lauterpacht ed.,

sc ce eee Deakedanadaeanteehe 26

Restatement (Second) of Contracts (1981)..... 68, 90, 91

Restatement (Third) of the Foreign Relations Law

OE Ge GE CD GHEE oo ce vs cnccccvccnesivecs 68

The Federalist, No. 80 (J. Cooke ed. 1961)....... .. 29

C. Warren, The Supreme Court and Sovereign States

SES + Seen s teens sobs ecew ees bnetbectineevenesewns 29

TABLE OF EXHIBITS

Page(s)

Conorapo ExuHisits

Colo. Exh. 2 (Admitted 5/20/91, RT Vol. 80 at 4-5) .... 60

Colo. Exh. 17 (Admitted by Order of 12/16/91)

(adelettUtinad odSedH04asdeard- céwsawreenennend 42, 88, 89

Colo. Exh. 21 (Admitted by Order of 12/16/91)

TU TTTT TTT TET TT TTT TET TT eT 39, 40, 41, 88

Colo. Exh. 57 (Admitted 10/15/90, RT Vol. 12 at

Yaar ani eon P Re imi at: 15, 83

Colo. Exh. 88.b. (Admitted 4/29/91, RT Vol. 71 at

| ROPE r ey Or ee Ot ee Tere ere CETTE Per? 80

Colo. Exh. 95 (Admitted 5/22/92, RT Vol. 115 at

RR re eee re nn ne ane eae 37, 38

Colo. Exh. 112 (Adraitted 5/22/92, RT Vol. 115 at

ei EErRaEtin tee hat Lamreraen 6

Colo. Exh. 114 (Admitted 5/20/91, RT Vol. 80 at

RE ee ee ee A ee ae weer tee eer 79

Colo. Exh. 115 (Admitted 9/22/92, RT Vol. 126 at

Dial dude patiraedwinka uae shiek da taaln eid ae eee 78

Colo. Exh. 165* (Admitted 4/29/91, RT Vol. 71 at

a Sat a ed) ea le 8, 55, 73, 78, 79, 80

Colo. Exh. 300 (Admitted 12/20/90, RT Vol. 38 at

ee es ieee oe eee h eae eee oe hee ie es 86

Colo. Exh. 623 (Admitted 10/09/90, RT Vol. 10 at

UST eal aee ee RIN eon P er) Aa IN Tn Ac 83

' Record corrected by Order to Correct Record Re Defen-

dant’s Exhibits, Report-App. 119, 4t (Jan. 5, 1994)

xii

TABLE OF EXHIBITS —- Continued

Page(s)

Colo. Exh. 650 (Admitted 10/09/90, RT Vol. 10 at

TEPC TT Te TTT ICT TT TTL 15

Colo. Exh. 660 (Admitted 10/30/90, RT Vol. 23 at

is eh beside ncesben dees sh seeee eke tsseseunvees 55, 58

Colo. Exh. 835 (Admitted 5/26/92, RT Vol. 116 at

MCClsiencdidenuecakiecmesabe eek acaba duaetenen 60

Colo. Exh. 836 (Admitted 5/26/92, RT Vol. 116 at

BS Wadrees Ciel we Ck ce cietel seeded aw 4, 60

Colo. Exh. 851 (Admitted 5/26/92, RT Vol. 116 at

id 6.0600 6b4ss decks becreSedesandedsaa the eeeandesEs 8

Colo. Exh. 852 (Admitted 5/26/92, RT Vol. 116 at

Sick sine RARE LSR RUS kee RERUN Ae a ad ekEehs )

Colo. Exh. 975 (Admitted 5/19/92, RT Vol. 112 at

10684606464 6th hn ebedbace eases enencesenees 21, 87

Jot Extisirs

Jt. Exh. 1 (Admitted 9/28/90, RT Vol. 9 at 76)....... 1

Jt. Exh. 2 (Admitted 9/28/90, RT Vol. 9 at 76)....... 2

Jt. Exh. 3 (Admitted 9/24/90, RT Vol. 5 at 86)...... 99

Jt. Exh. 4 (Admitted 9/24/90, RT Vol. 5 at 86)...... 67

Jt. Exh. 5 (Admitted 10/18/90, RT Vol. 15 at 12)

ere eT re erry Ty eT Tee err Tere 4, 6, 69, 71

Jt. Exh. 15 (Admitted 9/28/90, RT Vol. 9 at 83-84)

Souk ce waa a or a eae ce ae ra ae 2, 68, 84

Jt. Exh. 16 (Admitted 9/28/90, RT Vol. 9 at 83-84)

SS Udk oe cate nae eee ua ee Oe wae eteuneas haat 2, 5, 68, 69

Jt. Exh. 18 (Admitted 10/26/90, RT Vol. 21 at 36) ..46, 61

xiii

TABLE OF EXHIBITS — Continued

Page(s)

Jt. Exh. 19 (Admitted 10/22/90, Rt Vol. 17 at 89)

WITTTITITILOT TTL TtT TTT 16, 42, 44

Jt. Exh. 29 (Admitted 10/17/90, Rt Vol. 14 at 26)..... 4

Jt. Exh. 61 (Admitted 10/31/90, Rt Vol. 24 at 143). .39, 45

Jt. Exh. 66 (Admitted 10/18/90, Rt Vol. 15 at 30)

SERED Re RRL AEs © SRE Lo EN MER Ie 56, 58, 74

Jt. Exh. 67 (Adinitted 10/27/92, Rt Vol. 131 at 85).... 45

Jt. Exh. 68 (Admitted 10/27/92, Rt Vol. 131 at 85).... 45

Jt. Exh. 69 (Admitted 5/03/91, Rt Vol. 75 at 5)...... 45

Jt. Exh. 86 (Admitted 12/19/90, Rt Vol. 37 at 138).... 12

Jt. Exh. 88 (Admitted 10/16/90, Rt Vol. 13 at 121,

Jt. Exh. 91 (Admitted 10/18/90, Rt Vol. 15 at 130).... 74

Jt. Exh. 92 (Admitted 10/18/90, Rt Vol. 15 at 52)..... 5

Jt. Exh. 94 (Admitted 10/19/90, Rt Vol. 16 at 34)

WETTTITETTTOT ETT Te TCT 74, 78, 81

Jt. Exh. 105 (Admitted 5/26/92, Rt Vol. 116 at 80). . passim

Jt. Exh. 108 (Admitted 4/17/91,-Rt Vol. 64 at 6,

EE 6 OSCR CEC 6L 0 SNES ES hub e a6 desks LURES WEENS bE RwROS 74

Jt. Exh. 136 (Admitted 11/16/90, Kt Vol. 30 at

i PEPER T CRT TE CUE TET OT UTE TTT IN TCT Terre 39, 45

Jt. Exh. 137 (Admitted 11/16/90, Rt Vol. 30 at

PTET Teer Tee T Cre eT Teer TT Eee 39, 45

Jt. Exh. 138 (Admitted 11/16/90, Rt Vol. 30 at

PE 66.5446 nubshsv cWdaedwes 6o6U4s CkeCROReSCes os 12

xiv

TABLE OF EXHIBITS - Continued

Page(s)

jt. Exh. 139 (Admitted 11/16/90, RT Vol. 30 at

IN fice ene eis i ih Cea aead 11, 12

Jt. Exh. 140 (Admitted 11/16/90, RT Vol. 30 at

DE 45 Cieean stad wendacsnvenees Wissneens 4, 11, 12

Jt. Exh. 168 (Admitted 5/28/91, RT Vol. 85 at 147,

Ss 6s 50iu0b500ckkSeusebedess ca baehdeeteecuncet eee 7

Jt. Exh. 169 (Admitted 5/28/91, RT Vol. 147, 151)..... 7

Kansas Exnipits

Kan. Exh. 111* (12/6/90) (Admitted 1/23/91, RT

ee es 6604s ceS in eenncee eae nn 6 > as 20

Kan. Exh. 111*** (Admitted 3/17/92, RT Vol. 99 at

DP occ echeseee cen ceengnseenscesteseeeeecteneotesden 20

Kan. Exh. 129 (Admitted by Order of 11/16/93)... .66, 67

Kan. Exh. 205A (Admitted 9/21/90, RT Vol. 4 at 30) 45, 83

Kan. Exh. 447 (Admitted 12/18/90, RT Vol. 36 at

60)...... Spat hin TEEN ee: 12, 38, 71, 83

Kan. Exh. 448 (Admitted 11/16/90, RT Vol. 30 at

_ “ee eee inn Ream 12, 38, 45, 72

Kan. Exh. 689 (Admitted 9/21/92, RT Vol. 125 at

Ps 65sec Rocks vies FesN eee dnceeuencauvelucssneeeunees 79

REPORT OF THE SPECIAL MASTER

Colorado submits this brief in support of its excep-

tions to the July, 1994 Report of Arthur L. Littheworth,

Special Master (hereinafter the “Report”). The Report sets

forth the Master‘s findings and recommendations on the

liability phase of the case. Report at 11. Kemedy issues,

including damages, were severed pending a determina-

tion on liability. Id.

_ oe--

JURISDICTION

The original jurisdiction of the Court was invoked by

the State of Kansas under Article III, Section 2, Clause 2

of the United States Constitution and 28 U.S.C.

§1251(a)(t).

ARKANSAS RIVER COMPACT

The Arkansas River Compact is an interstate compact

between Colorado and Kansas. The Compact was signed

by Commissioners for Colorado and Kansas on December

14, 1948. Jt. Exh. 1.' The Compact became effective on

May 31, 1949, after it was ratified by the legislature of

each state and consented to by Congress. Arkansas River

Compact, Art. IX-A; Act of May 31, 1949, Ch. 155, 63 Stat.

1 Exhibits and the reporter’s transcript are cited in this

brief in the same way the Master cited them in his Report.

Report at xvi, 12-13.

145 (1949) (jt. Exh. 2).2 The provisions of the Arkansas

River Compact are set forth in Exhibit 1 of the Appendix

to the Report. Report-App. at 1-17.

o¢—

STATEMENT OF THE CASE

In March 1986, Kansas was granted leave to file this

action against Colorado. 475 U.S. 106 (1986). In its com-

plaint, Kansas alleged that Colorado had violated the

Arkansas River Compact. The Special Master's Report

describes the major issues and claims of the parties.

‘Report at 58-64.

In his Report, the Master recommends that the Court

find that post-compact well pumping in Colorado has

violated Article 1V-D of the Arkansas River Compact.

Report at 336. He also recommends that the Court find

that Kansas failed to prove its claim that operation of the

so-called Winter Water Storage Program has violated the

Compact. /d. Finally, he recommends that the Court con-

firm his earlier decisions to dismiss all other claims and

counterclaims. /d. at 336-37.

2 The acts of the state legislatures ratifying the Compact are

printed in hearings held by Congress on the Compact. Arkansas

River Compact: Hearing on S. 1448 Before the Senate Comm. on

Interior and insular Affairs, 81st Cong., Ist Sess. 8-9, 18-19 (1949)

[hereinafter cited as Senate Hearing] (Jt. Exh. 15); Arkansas River

Compact: Hearing on H.R. 4151 Before the Subcomm. on Irrigation

and Reclamation of the House Comm. on Public Lands, 81st Cong.,

Ist Sess. 10-11, 31 (1949) [hereinafter cited as Howse Hearing} (Jt.

Exh. 16).

lf the Court affirms his Report, the Master recom-

mends that the case be remanded for further evidence to

quantify depletions to usable Stateline flows and for com-

pletion of the remedy phase. Report at 290, 337.

One ruling in the Report deserves special notice.

Although the Master found that Kansas knew or should

have known of the effects of post-compact well pumping

in Colorado by 1968 and that Kansas did not complain

about such pumping until 1984 at the earliest, he rejected

Colorado’s defense of laches. Report at 153-70. This rul-

ing, if affirmed by the Court, would allow Kansas to

claim damages for depletions to usable Stateline flows

dating back to 1950. Id. at 164-68.

A. DESCRIPTION OF THE ARKANSAS RIVER

BASIN

The A: xansas River originates on the eastern slope of

the Rocky Mountains, upstream of the old mining town

of Leadville, Colorado. Report at 35. The river begins as a

mountain torrent until, near Canon City, it emerges from

the mountains into a foothills region. Kansas v. Colorado,

206 U.S. 46, 105 (1907). The river then flows through a

narrow valley until it reaches the City of Pueblo, where

the river leaves the foothills and meanders across the

High Plains into Kansas.*

9 For an excellent description of the Arkansas River Basin

in Colorado and Kansas, see U.S. Dept. of Interior, Bureau of

Reclamation, Report on the Upper Arkansas River Basin, Colorado-

Kansas 5-19 (1969) (Jt. Exh. 105).

The Arkansas River Valley between Pueblo, Colo-

rado, and Garden City, Kansas, is what westerners call

semi-arid, which means that crops generally cannot be

grown without irrigation. Jt. Exh. 105 at 7. Rainfall aver-

ages less than 12 inches per year at Pueblo, which gradu-

ally increases to an average of slightly more than 18

inches per year at Garden City. /d. at 7; Jt. Exh. 140 at 15.

The Arkansas River Valley is a fertile agricultural

area, but the water supply in the Arkansas River is not

adequate to irrigate the lands along the river and is

subject to wide fluctuations not only from year to year,

but also from season to season and day to day. Jt. Exh. 105

at 13, 34, 69; Colorado v, Kansas, 320 U.S. 383, 396 ( 1943).

Runoff from mountainous areas above Canon City, which

is derived primarily from snowmelt, is more uniform

from year to year and fluctuates less widely than runoff

from foothills and plains drainage areas. Jt. Exh. 5 at 10.

As a result, the mountain runoff is more usable and is

diverted for irrigation largely in Colorado. /d.4

More than 60 percent of the average annual main-

stem runoff in Colorado occurs during April, May, and

June. Jt. Exh. 105 at 60. Lands under most canals experi-

ence shortages of surface water after June, when the

_ —— —_—_ -~

4 The flow of the river at Canon City (excluding trans-

mountain imports) averaged 499,200 acre-feet per year over the

period 1908-84, varying from 217,200 acre-feet in 1940 to 896,600

acre-feet in 1957. Jt. Exh. 29, Table 6D2. In contrast, the flow of

the Purgatoire River, the largest tributary of the Arkansas River,

measured near Las Animas just upstream from where it joins the

Arkansas River, averaged 61,659 acre-feet per year for the

period 1950-85, ranging from 4,571 acre-feet in 1975 to 271,256

acre-feet in 1965. Colo. Exh. 836, Col.(2).

snowmelt is generally gone. Jt. Exh. 92 at i. Shortages in

Colorado are partially alleviated by reservoir releases,

transmountain imports, and ground water pumping. Jt.

Exh. 105 at 60.

Tributary inflow below Pueblo provides a portion of

the water supply to ditches on the Arkansas River. Jt.

Exh. 105 at 58. However, these streams are mostly inter-

mittent and their flow is derived primarily from intense

summer rainstorms, so that they do not provide a

dependable supply to ditches on the Arkansas River. Jt.

Exh. 92 at 5. Most of the flood flow above John Martin

Reservoir is now captured by reservoirs in Colorado, but

tributaries below John Martin are largely unregulated. Jt.

Exh. 105 at 43.5

Prior te the construction of John Martin Reservoir,

Stateline flows averaged 280,800 acre-feet per year over

5 The John Martin Reservoir project (which was originally

-known as the Caddoa Reservoir Project) was authorized for

construction by the U.S. Army Corps of Engineers in 1936 to

provide flood control and water conservation in Colorado and

Kansas. Arkansas River Compact, Art. III-D. Potential useful-

ness of the reservoir in facilitating a settlement of the long-

standing interstate controversy between Colorado and Kansas

was also a consideration in authorization of the project. H.

Kramer, Report lo the Congress of the United States on the Proposed

Arkansas River Compact Between Colorado and Kansas, reprinted in

Senate Hearing, supra note 2, at 32-33 (1949) [hereinafter cited as

“Kramer Report”] (Jt. Exh. 15). General Kramer's report to Con-

gress, together with a General Map of the Arkansas River Basin,

is also reprinted in the House Hearing, supra note 2, at 34-41 (Jt.

Exh. 16). Water stored in the conservation pool of John Martin

Reservoir is apportioned between Colorado and Kansas in the

Arkansas River Compact. Arkansas River Compact, Art. II-B, V.

the period 1908-1942, varying from 30,900 acre-feet in

1940 to 1,342,400 acre-feet in 1942. Jt. Exh. 5 at 15, Sum-

mary Table C. It was expected that the operation of John

Martin in accordance with the provisions of the Arkansas

River Compact would reduce total Stateline flows by

storing flood flows and winter flows which had previ-

ously been unused. Report at 54, 144. After the Compact

became effective, Stateline flows averaged 144,051 acre-

feet per year for the period 1950-85. Id. at 53. Even after

the Compact became effective, however, it was expected

that there would still be substantial amounts of water

passing Garden City unused each year which would be

available for future development in the basin.®

B. HISTORY OF IRRIGATION AND WELL

DEVELOPMENT IN THE ARKANSAS RIVER

BASIN

Colorado

Irrigation in the Arkansas River Basin in Colorado

began in 1859 shortly after the Pikes Peak gold rush,

although large-scale irrigation did not begin until 1874,

near Rocky Ford. Jt. Exh. 105 at 8.

— —

6 Shortly after the Compact became effective, the U.S.

Bureau of Reclamation estimated that there was an average of

about 48,000 acre-feet per year available for storage in excess of

the requirements of water users in Kansas. Colo. Exh. 112 at 3-4,

6. This estimate was based on water which could be diverted at

rates of 200 cubic feet per second (“cfs”) or less. Id. at 6, note b. If

flood flows in excess of 200 cfs had been considered, there was

more unused water passing Garden City.

The major irrigation systems in the Arkansas River

Valley in Colorado were developed primarily during the

1880s. Jt. Exh. 105 at 89. By 1910, a complex system of

private irrigation ditches and reservoirs had been devel-

oped in Colorado to irrigate approximately 325,000 acres

between Pueblo and the Stateline. Id. at 8, 58; Report at

37. The river supply was inadequate to irrigate this acre-

age, and by 1935 seven projects had been constructed to

import water into the Arkansas River Basin in Colorado,

mostly from the Colorado River Basin (commonly

referred to as “transmountain imports”). Jt. Exh. 105 at 8,

83-85. At the time the Compact was negotiated, trans-

mountain imports were averaging approximately 43,000

acre-feet per year. Report at 49. With the completion of

the Fryingpan-Arkansas Project, a $432 million water pro-

ject authorized by Congress in 1962,7 the United States

Bureau of Reclamation estimated that total diversions

from the Colorado River Basin into the Arkansas River

Basin would average 196,000 acre-feet annually, 38 per-

cent of the average annual flow of the Arkansas River at

Pueblo. Jt. Exh. 105 at 2.8 These transmountain imports

? Act of Aug. 16, 1962, Pub.L. No. 87-590, 76 Stat. 389 (1962)

(J'. Exh. 168); as amended by the Reclamation Development Act

of 1974, Pub.L. No. 93-493, Title XI, §1101, 88 Stat. 1497-98

(increasing the appropriation for the Fryingpan-Arkansas Pro-

ject to $432,000,000) (Jt. Exh. 169). For a description of the

Fryingpan-Arkansas Project, see Jt. Exh. 105 at 102-07.

8 In 1962, the average annual flow of the Arkansas River at

Pueblo was about 514,000 acre-feet per year, including trans-

mountain imports. Jt. Exh. 105 at 58. The mainstem flow at

Pueblo cited by the Master, Report at 51, is a “composite flow”

which was developed by the Kansas experts for use in the

Kansas hydrologic-institutional model and includes inflow

are important because the Arkansas River Compact

excludes imported water from the apportionment to Kan-

sas. Report at 257; Arkansas River Compact, Art. III-B, IV-

Ground water has been used for irrigati *n for many

years in the Arkansas River Valley in Colorado, primarily

to supplement surface supplies. Jt. Exh. 105 at 39. Accord-

ing to a careful study made by Colorado, Report at 204,

there are 717 large-capacity (100 gallons per minute or

greater) irrigation wells in Colorado along the mainstem

of the river with appropriation dates earlier than 1950.

Colo. Exh. 165*, Table A.1 (Total number of wells, 1949).

By 1985, there were about 2,062 large-capacity irrigation

wells along the mainstem in Colorado. [d.? Most of the

new wells constructed in Colorado after the Compact

became effective were constructed prior to 1965, when

the Colorado legislature enacted legislation to authorize

the State Engineer to deny well permits on the basis of

injury to other water rights. Report at 109-10.

from Fountain Creek and diversions by the Bessemer Ditch,

which actually diverts above Pueblo. Colo. Exh. 831; RT Vol. 113

at 121-24 (Helton). Not all of the water imported into the

Arkansas River Basin is used in the Arkansas River Valley

below Pueblo. Report at 48-49. Average deliveries of trans-

mountain water below Pueblo have averaged approximately

120,000 acre-feet in recent years. Id. at 49.

% The Master-states that Colorado's total for the number of

wells is 2,057. Report at 203, citing Colo. Exh. 851. That exhibit

was prepared to compare the number of wells in the Kansas well

database and the Colorado well database. For purposes of that

comparison, five wells under the Highland Ditch on the lower

Purgatoire River were excluded in the Colorado total shown on

Colo. Exh. 851.

x 4

‘

The amount of ground water pumping in Colorado

was a subject of considerable dispute in this case; but

there was no dispute that pumping in Colorado had

ir.creased substantially after the Compact became effec-

tive. Report at 115. According to Colorado’s estimates,

total pumping along the river from Pueblo to the State-

line increased from 41,458 acre-feet in 1950 to a maximum

of 285,887 acre-feet in 1976. Colo. Exh. 852. According to

Kansas’ estimates, pumping increased from 31,201 acre-

feet in 1950 to a maximum of 314,749 acre-feet in 1976. Id.

The amount of pre-compact pumping was subject to

much greater dispute, as will be discussed later in this

brief.

Kansas

In Kansas, irrigation from the Arkansas River began

in 1879. Jt. Exh. 105 at 38; House Hearing, supra note 2, at

31 (Statement by George S. Knapp).'© Irrigated acreage

19 The Master, relying on a report prepared by an historian

called by Kansas states: “The settlement of Kansas, which was

admitted to the Union in 1861, commenced before that in Colo-

rado. It was not until 1876 that Colorado became a state, By the

1870s, the transformation of prairie grasslands in Kansas into

irrigated farms and small towns was well underway.” Report at

1-2. This gives an erroneous and distorted picture of develop-

ment in the Arkansas River Basin in Colorado and Kansas

upstream from Garden City, Kansas. Settlement and irrigation

began first in the Colorado portion of the basin following the

Pikes Peak gold rush in 1858. See Kansas v. Colorado, 206 U.S. at

107-08 (tables of census data fur population and number of acres

cultivated in Colorado counties). Significant settlement in Ham-

ilton, Kearny, and Finney Counties in Kansas did not begin until

the 1880s. /d. at 110-12 (tables of census data for population and

number of acres cultivated in Kansas counties).

grew steadily from approximately 15,000 acres in 1895,

Colorado v. Kansas, 320 U.S. at 399, to about 66,000 acres in

1949. Report at 221. The ditches in Kansas under the

Arkansas River Compact are located in Hamilton, Kearny,

and Finney Counties and divert from the Arkansas River

upstream from Garden City, Kansas. Jt. Exh. 105 at

111-14.11

The use of ground water for irrigation in Kansas

dates back to about 1890 when windmill-powered pumps

were first used. Jt. Exh. 105 at 40. By the late 1930s, many

farmers in Kansas supplemented diversions from the

-river with irrigation wells and some used wells exclu-

sively. Colorado v.- Kansas, 320 U.S. at 399. In 1962, the

Bureau of Reclamation surveyed the irrigation practices

under the eight ditches in Kansas and found that the land

irrigated in the area had increased to an estimated 75,800

acres. Jt. Exh. 105 at 130. Of this acreage, 71 percent

(53,839 acres) used both surface and ground water, 17

percent (12,846 acres) used ground water only, and 12

percent (9,110 acres) used surface water only. /d. at 112,

130. In 1988, the Kansas Division of Water Resources did

a study of acres irrigated in the ditch service areas and

along the river and found a total of 98,274 acres irrigated

by curface and ground water. RT Vol. 31 at 72 (Frost).

1! The reason there are no ditches below Garden City is due

to the physical conditions peculiar to the Arkansas River Basin

in Kansas. Kramer Report, supra note 5, at 34 (Jt. Exh. 15); see also

House Hearing, supra note 2, at 46-48 (Statements of General

Hans Kramer, federal representative to the Arkansas River

Compact Commission, and George S. Knapp, Chairman of the

Kansas Commissioners) (describing the peculiar physical char-

acteristics of the Arkansas River).

Outside the ditch service areas there was a consider-

able expansion of irrigated acreage, particularly in the

late 1960s and 1970s when center-pivot irrigation sprink-

ler systems were developed which could irrigate lands

which had not been leveled. Report at 221; Jt. Exh. 140 at

13. The U.S. Geological Survey (USGS) estimated that in

1980 there were approximately 351,000 acres in Hamilton,

Kearny, and Finney Counties irrigated by surface water

and ground water hydrologically connected to the

Arkansas River,'? a more than five-fold increase since the

Compact was signed.

Ground water pumping in Kansas increased as irri-

gated acreage increased.!> In 1939, the USGS estimated

that about 50,000 acre-feet had been pumped for irrigation

12 Jt. Exh. 139 at 15 (31,000 acres in the phase | study area);

Jt. Exh. 140 at 11 (320,000 acres in the phase II study area). The

phase I study area was from the Stateline to the Bear Creek Fault

zone. Jt. Exh. 139 at 3. It is shown on Figuré 1 of Jt. Exh. 139 at 2.

The phase I] study area, which included portions of Kearny and

Finney Counties, is shown in Figure 1 of Jt. Exh. 140 at 2.

13 Census figures for Hamilton, Kearny, and Finney Coun-

ties for 1979, 1939, 1949, 1959, and 1964 are tabulated by the

Bureau of Reclamation in Jt. Exh. 105 at 74. In 1939, irrigated

acreage in the three counties was about 56,000 acres. By 1964, it

had increased to about 160,000 acres. Id. The Bureau of Reclama-

tint noted that the rapid expansion of irrigation in south-

western Kansas had been made possible primarily through the

use of ground water, “but not without some serious local prob-

lems.” Id. at 134. The Bureau of Reclamation warned that water

levels were declining, that ground water “mining” was occur-

ring in the Garden City area, and that as overdrafts continued,

the yield of individual wells would decrease. /d. at 40.

in Hamilton, Kearny, and Finney Counties.'4 In 1979 and

1980, the USGS estimated that about 803,000 acre-feet had

been pumpea in the three counties from wells which

were hydrologically connected to the Arkansas River.'5

Much of the increased pumping in Kansas is from

what is commonly referred to as the “Ogallala Aquifer,”

which underlies the Arkansas River and its alluvium east

of the Bear Creek fault zone. Report at 223; see Jt. Exh. 138

at 25-28; Jt. Exh. 139 at 2, Fig. 1. The Master states that

there is a “major confining zone” which separates the

alluvium from the Ogallala Aquifer and that the upper

aquifer and the Ogallala Aquifer “act independently.”

Report at 222. This implies a much greater degree of

separation than exists. The USGS did an extensive study

of the interrelationship of aquifers in the area in the early

1980s. Jt. Exh. 140. The USGS concluded that as ground

water development intensified, “water from the valley

and upper aquifer leaked downward through the confin-

ing zone to the lower aquifer.” Jt. Exh. 140 at 22. The

'# Kan. Exh. 447 at 118 (27,100 acre-feet in Finney County);

Kan. Exh. 448 at 97-98 (23,000 acre-feet in Hamilton and Kearny

Counties).

5 Jt. Exh. 139 at 8 (65,000 acre-feet pumped in 1979); }t. Exh.

140 at 11 (738,000 acre-feet pumped in 1980). There were no

complete estimates for ground water withdrawals in Hamilton,

Kearny, and Finney Counties for the intervening years,

although a report prepared by the Kansas Water Resources

Board showed a steady increase in irrigated acreage and acre-

feet applied in the three counties from 1950 to 1966. Jt. Exh. 86 at

4-5 and county data for Hamilton, Kearny, and Finney Counties

Estimates of ground water withdrawals in Finney County by the

USGS also showed a steady increase between 1945 and 1963. Jt.

Exh. 138 at 70.

USGS also concluded that “[t}he result of the increased

downward leakage of water from the valley and upper

aquifers to the lower aquifer has been the water-table

decline observed after 1973 in the valley aquifer near

Deerfield; ...” Id. at 23. Further, the USGS concluded

that “[djownward leakage of water from the upper aqui-

fer to the lower aquifer has led to the dewatering of the

upper aquifer on the high plains.” Id. Thus, while there is

some separation between the alluvium and the Ogallala

Aquifer, the confining zone is not a barrier to movement

of ground water and increased pumping from the

Ogallala Aquifer in Kansas has led to water level declines

in the alluvium and dewatering of the upper aquifer. /d. It

has also led to increased transit losses between the State-

line and the headgates of Kansas ditches. Report at 226.

C. COLORADO V. KANSAS

The opinion in Colorado v. Kansas, 320 U.S. 383 (1943),

sets the backdrop for this-case. In Colorado v. Kansas this

Court rejected a Master’s finding that Colorado’s use of

the waters of the Arkansas River had materially

increased, as well as his recommendation for an alloca-

tion of the flows of the river between Colorado and

Kansas. The Court did so on the basis that Kansas had not

proven that Colorado’s use had materially increased and

that the increase had worked a serious detriment to the

substantial interests of Kansas. Id. at 400. Among the

factors that persuaded the Court that Kansas had not met

its burden of proof was the tact that Kansas had taken no

action while improvements based on irrigation went for-

ward in Colorado for twenty-one years. Id. at 394. The

Court said:

These facts might well preclude the award

of the relief Kansas asks. But in any event, they

gravely add to the burden she would otherwise

bear, and must be weighed in estimating the

equities of the case.

320 U.S. at 394, citing Washington v. Oregon, 297 U.S. 517,

526 (1936). The Court also noted that despite the claim

that Colorado’s use had materially increased, there had

been a steady increase in acreage irrigated in Kansas,

from 15,000 acres in 1895 to 56,000 acres in 1939. 320 U.S.

at 399.

The 1943 opinion made no mention of John Martin

Reservoir, which had been authorized by Congress in

1936. Report at 45. At the time of the Court's decision, the

reservoir was under construction on the mainstem of the

Arkansas River in Colorado, approximately 58 miles

upstream from the Stateline. Jd. Water stored in the reser-

voir was allocated between the states pursuant to a stipu-

lation signed in 1933; but, the stipulation was only

effective unti) this Court's decision in Colorado v. Kansas.

Id. at 78-79. Although the Court did not address John

Martin Reservoir, it encouraged the states to settle their

disputes by agreement, 320 U.S. at 392, which they did.

D. THE ARKANSAS RIVER COMPACT

In December 1948, after three years of negotiations,

Commissioners for Colorado and Kansas signed the

Arkansas River Compact. The Compact became effective

on May 31, 1949, after it had been ratified by the legisla-

ture of each state and consented to by Congress.'®

The Compact does not apportion the waters of the

Arkansas River between Colorado and Kansas based on

beneficial consumptive use or a Stateline delivery obliga-

tion, as in some other interstate water compacts, but

instead gives both states the right to make demands for

releases from John Martin Reservoir at the times and at

the rates specified in the Compact. Arkansas River Com-

pact, Art. V. The Compact did not prohibit future devel-

opment of the waters of the Arkansas River, “|p|rovided,

that the waters of the Arkansas River, as defined in

Article IJI, shall not be materially depleted in usable

quantity or availability for use to the water users in

Colorado and Kansas under this Compact by such future

development or construction.” /d., Art. IV-D. General

Hans T. Kramer, the federal representative to the Com-

mission which negotiated the Compact and who served

as its chairman, Report at 91, 92, explained the history of

the negotiations in a letter to the U.S. Army Corps of

Engineers in which he described the philosophy of the

Compact as “Live and Let Live.” Colo. Exh. 57. That

philosophy accurately describes the attitude of both

states toward post-compact well development for many

% For an excellent summary of the provisions of the

Arkansas River Compact, see J. Breitenstein, The Law of the

Arkansas River at 10-12 (paper presented to the Arkansas-White-

Red Basins Inter-Agency Committee meeting, July 18, 1951)

(Colo. Exh. 650). Jean Breitenstein was a recognized expert in

western water law and was later appointed as Special Master in

Texas v. New Mexico. See Texas v. New Mexico, 482 U.S. 124, 127

(1987).

years. As long as well development was occurring in both

states, there were no complaints about such develop-

ment. !7

For 30 years after the Compact became effective there

were relatively few disputes over the use of waters of the

Arkansas River; however, in 1980, Kansas complained

about storage in Trinidad Reservoir, a federal reservoir on

the Purgatoire River, Report-App. at 56, and thereafter

made complaints about the Winter Water Storage Pro-

gram in Colorado. Report at 312. In late 1983, Kansas

hired an engineering firm to investigate the reasons for.

declining Stateline flows; and, in March 1985, Kansas

'7 The Master concluded that General Kramer’s remarks

“relate only to the conservation pool in John Martin and the

ability of both states to draw upon it according to need.” Report

at 106. This interpretation of General Kramer’s remarks is not

correct. In 1954, General Kramer, who was appointed as the first

federal representative to the Arkansas River Compact Adminis-

tration, discussed the intent of the framers of Article IV-D of the

Compact. Minutes of Arkansas River Compact Administration

Annual Meeting (Dec. 14, 1954) at 11-13,(Jt. Exh. 19). He stated

that “[a]s the author of portions of the Compact and as Chair-

man of the negotiating commission, he felt that he was in a

position to know the meaning of the wording as adopted.” Id. at

11. After quoting from portions of his report to Congress and

the record of the Compact Commission, General Kramer stated

that “the basic motivating principle in formulation of the Com-

pact was, ‘Live and Let Live.’ ” Jd. at 13. In determining whether

a depletion from a proposed federal project on the Purgatoire

River was material, General Kramer stressed that the principle

of ‘ Live and Let Live” should be adhered to. /d. Thus, General

Kramer believed that the “Live and Let Live” philosophy

applied not only to the ability of both states to draw on the

conservation pool, but also to future development in the basin.

requested an investigation by the Arkansas River Com-

pact Administration'*® of alleged Compact violations

caused by the operation of Trinidad Reservoir, the opera-

tion of the Winter Water Storage Program, and, for the

first time, post-compact wel! pumping'in Colorado. Id. at

153.

E. THE CURRENT DISPUTE

In December 1985, Kansas filed a motion for leave to

file a complaint against Colorado, together with a com-

plaint alleging that Colorado had rejected its requests to

investigate the alleged Compact violations. Report at 15.

In March 1986, the Court granted Kansas’ motion and

allowed Colorado 60 days to file an answer. 475 U.S. 1069

(1986). The Master has provided a detailed summary of

the procedural history of the case in his Report, including

the breakdown suffered by Kansas’ chief technical expert

witness, Timothy J. Durbin, during cross-examination

after nm*merous errors were brought out in various Kan-

sas exhibits and the Kansas hydrological-institutional

model (“H-] Model”), which he had developed to support

Kansas’ claims. Report at 15-34. The Master has also

18 The Arkansas River Compact Administration is an inter-

state agency created by the Compact. Arkansas River Compact,

Art. VIH-A. The membership of the Compact Administration

consists of three representatives of each state and a federal

representative who acts as chairman but has no vote. /d., Art.

VIII-C. The Compact provides that violations of any of the

provisions of the Compact or other actions prejudicial thereto

which come to the attention of the Compact Administration

“shall be promptly investigated by it.” /d., Art. VILI-H.

described the substantial delay and the changes to Kan-

sas’ case resulting from Mr. Durbin’s hospitalization and

replacement by other experts.'? Id. at 29-31, 241-48. We

will not repeat that full history here, except to note that

the numerous errors and poor assumptions in the H-I

Model did affect the credibility of Kansas’ case. Id. at

236-37, 315-16, 335. As the Master states:

The major changes in Kansas’ position and

evidence cannot be ignored. For some five years

the Kansas experts worked to accumulate the

necessary data and to develop the H-I model in

order to support the state’s claims. Yet after

Colorado’s cross-examination during trial

uncovered numerous errors and shortcomings

in the Kansas evidence, and after the trial recess

caused by Durbin’s hospitalization, Kansas’

replacement experts testified to substantially

different conclusions than those resulting from

the original H-I model. Brent E. Spronk, one of

Kansas’ replacement experts, testified openly

that the results of the original H-I model were

not reliable.

Report at 236-37 (footnotes omitted).

After the Kansas replacement experts corrected

errors and addressed many of the poor assumptions in

H-I Model, and in the process added some 900 lines of

new code to the program for the model, the model was

'? The Master, over Colorado's objection, granted Kansas’

motion for a lengthy continuance to replace Mr. Durbin in part

because of “the important sovereign interests that are involved

in this case, ... ” Report-App. at 91-92.

unable to predict diversions and Stateline flows accu-

rately, even on a long-term basis. Report at 245-46. The

model over-predicted diversions by ditches in Colorado

and under-predicted Stateline flows. Id. This was due, in

part, to the fact that the replacement experts did not

attempt to correct all of the shortcomings in the modeling

process which had been identified by Colorado’s experts.

Report at 238-39.29

To improve the model's ability to predict diversions

and Stateline flows, the Kansas replacement experts

resorted to a series of Rube Goldberg-like steps to cali-

brate the model. First, they reduced the known, measured

capacity of many of the Colorado canals in the model to

limit the amounts they could divert. Report at 246. Sec-

ond, they added “diversion reduction factors” to reduce

the amounts that could be diverted under some of the

larger water rights in Colorado. Id. Third, they routed the

water which these rights were not permitted to divert

because of the “diversion reduction factors” directly to

John Martin Reservoir or the Stateline. /d. at 246-47.

Colorado’s experts were highly critical of the way in

which the model had been calibrated by the Kansas

20 The H-1 Model is a computer program which was devel-

oped to predict diversions and streamflows in Colorado from

Pueblo to the Stateline. Report at 230-34. In addition to diver-

sions and streamflows, many factors are considered in the

model, including reservoir operations, tributary inflows, crop

consumption, non-crop consumption, and irrigation pumping.

id. at 233-34. As the Master comments, “[i]t represents an enor-

mously difficult task, the complexities of which may not have

been fully appreciated when Durbin began to develop the basic

structure of the model.” Id. at 230 (footnote omitted).

replacement experts, Report at 247, although one of Colo-

rado’s principal experts did concede, after the errors and

poor assumptions had been corrected, that the H-I Model

did provide a rough idea, on a long-term basis, of the

impacts of well pumping in Colorado. Id. at 253. Colo-

rado and the United States’ experts did not agree, how-

ever, that the model was reliable to evaluate the effects of

the Winter Water Storage Program, id. at 322-27, and the

Master has recommended that the Court find that Kansas

failed to prove its claim that operation of the Program has

violated the Compact. /d. at 335.

To put the errors and poor assumptions in the origi-

nal H-I Model in perspective, it is helpful to compare the

results of the model before and after it was revised. In the

_original version presented by Mr. Durbin, the model cal-

culated total depletions of Stateline flows from post-com-

pact well pumping in Colorado (before any offset for

transmountain return flows) of 1,581,000 acre-feet for the

period 1950-85. Report at 235; Kan. Exh. 111* (12/6/90)

(Comparison “F"). The revised version of the model cal-

culated total depletions of Stateline flows from post-com-

pact well pumping in Colorado of 852,000 acre-feet. Kan.

Exh. 111 * * * (Historical Pumping). Based on the results

of the original model, the Kansas claim for the combined

effects of post-compact pumping and the Winter Water

Storage Program (after transmountain return flows had

been accounted for and depletions were limited to deple-

tions of usable Stateline flows) was 917,000 acre-feet.

Report at 235. The Kansas claim based on the revised

mode] was reduced to 489,000 acre-feet. Id. at 237, 256.

However, this amount was based on a new method to

calculate depletions to usable Stateline flows. Id. at 255.

When depletions to usable Stateline flows were calcu-

lated using the method Mr. Durbin had developed and

which the Master concluded was the best of several

methods presented, Kansas’ claim was reduced to 365,400

acre-feet, id. at 256 note 97, 40 percent of the original

claim.

All of these results were based on Kansas’ estimates

of post-compact well pumping in Colorado and Kansas’

assumption about the amount pre-compact wells in Colo-

rado were entitled to pump after the Compact became

effective (i.e., 11,000 acre-feet per year). Report at 183, 202

& note 70. When Colorado’s estimates of post-compact

well pumping and the amounts pre-compact wells in

Colorado were entitled to pump after the Compact

became effective were used in the model, the depletions

calculated by the model dropped substantially. For exam-

ple, when reduced to depletions of usable Stateline flows

using the Durbin usable flow analysis with the Larson

coefficients, which the Master concluded was the best of

the methods presented, depletions from post-compact

well pumping dropped from 355,900 acre-feet to 230,900

acre-feet. Colo. Exh. 975, Comparisons 6 and 5. When

accretions to usable Stateline flows predicted by the

model were considered, net depletions dropped to

194,800 acre-feet. f[d., Comparison 5. Moreover, tt.2se

amounts do not include increases to usable Stateline

flows resulting from the 1980 Operating Plan for John

Martin Reservoir.

While Colorado’s experts conceded that post-com-

pact well pumping in Colorado had depleted Stateline

flows to some extent, Colorado showed, and the Master

found, that Kansas had known about post-compact well

pumping in Colorado for many years, but did not com-

plain about such pumping until 1984, at the earliest.

Report at 155-56, Nevertheless, the Master rejected Colo-

rado’s defense of laches. Id. at 170. Colorado also sliowed

that the Operating Plan for John Martin Reservoir, which

was adopted by the Compact Administration in 1980, had

increased usable Stateline flows. The Master concluded,

however, that the 1980 Plan was not a bar to Kansas’

claims and that increases in usable Stateline flows result-

ing from the Plan should not offset depletions of usable

Stateline flows caused by post-compact well pumping. /d.

at 180-81.

Although the Master concluded that post-compact

well pumping in Colorado had violated the Compact and

rejected Colorado’s equitable defenses, he did not make a

finding of the amount of the depletions to usable State-

line flows from post-compact well pumping in Colorado.

He did not do so for several reasons. First, he ruled that

the “pre-compact pumping allowance” used in the Kan-

sas model should be increased from 11,000 acre-feet per

year to 15,000 acre-feet per year and that the post-com-

pact pumping estimates used in the model should be

modified for some Colorado adjustments. Report at

199-200, 219. Second, he questioned the comparison used

by the Kansas replacement experts to calculate depletions

with the revised model. /d. at 259-60. Third, he felt that

additional evidence was necessary on the issue of accre-

tions to usable Stateline flows calculated by the model. /d.

at 260, 262-63. Thus, if the Court affirms his rulings on

the liability phase, the Master recommends that the case

be remanded for further evidence to quantify depletions

to usable Scateline flows and for completion of the rem-

edy phase. /d. at 290, 337.

¢-—-

SUMMARY OF ARGUMENT

1. Kansas delayed 29 years after it knew or, in the

exercise of reasonable diligence, should have known of

facts giving rise to a claim against Colorado for post-

compact well pumping in Colorado; Kansas had no justi-

fiable excuse for its delay; and Colorado was prejudiced

by Kansas’ delay. The policy disfavoring the untimely

assertion of rights which underlies the defense of laches

is applicable against a state in a controversy between

states in this Court. The considerations of public policy

which support application of the rule nullum tempus to a

domestic sovereiyn when it sues in its own courts are not

controlling in a controversy between states in this Court.

While Kansas may not be barred from seeking prospec-

tive relief, Kansas should be barred from claiming dam-

ages prior to 1985 when it first requested am ir vestigation

of post-compact well pumping by the Arkensas River

Compact Administration.

2. Article IV-D of the Arkansas River Compact does

not limit pre-compact wells in Colorado to pumping the

highest amount pumped during the pre-compact period.

Moreover, the USGS estimates of pumping used by the

Special Master to determine the highest amount pumped

are not reasonable because there is no data to support

those estimates, the estimates are inconsistent with power

data that is available, and the person who made those

estimates had died and was not available to explain the

data and assumptions used to make those estimates.

3. Under general principles of contract law,

increases in usable Stateline flows resulting from the

adoption of the 1980 Operating Plan for John Martin

Reservoir should offset depletions to usable Stateline

flaws caused by post-compact well pumping in Colorado.

4. The standard of proof in a controversy between

states involving an alleged breach of an interstate com-

pact should be the “clear and convincing” standard,

which reflects the significant interest society has in the

outcome of such suits and guards against erroneous fac-

tual determinations.

ARGUMENT

I. KANSAS’ CLAIM FOR DAMAGES SHOULD BE

BARRED BY LACHES

In its Answer, Colorado raised laches as an affirma-

tive defense. Report-App. at 32, ¥ 2. In proceedings

before the Special Master, Kansas took the position that

laches was not applicable against a state. Report at 149.

See Illinois v. Kentucky, 500 U.S. 380, 388 (1991) (“The

Special Master correctly observed that the laches defense

is generally inapplicable against a State.”); Block v. Nori

Dakota, 461 U.S. 273, 294 (1983) (O’Connor, J., dissenting)

(“The common law has long accepted the principle

‘nullum tempus occurrit regit’ - neither laches nor statutes

of limitations will bar the sovereign.”).

Special Master Littleworth noted that no interstate

compact enforcement case had been found in which the

Supreme Court had directly held that laches does or does

not apply against a state. Report at 150. He said that one

argument In favor of applying laches is that the Court has

described Its jurisdiction in cases between states as

“basically equitable in nature.” [fd., quoting Ohio v. Ken-

tucky, 410 U.S. 641, 648 (1973). He noted, however, that

even in equity cases, it is generally held that laches does

not apply against a public agency. Report at 150.2!

The Master concluded, however, that it would be a

mistake to decide the issue solely on the basis of “conven-

tional rules of equity.” Report at 150. He said that in

exercising the “unprecedented” grant of judicial power

over controversies between states, “the inquiry really is

one of fundamental justice rather than what is the histori-

cal or even the current practice of courts exercising less

extraordinary powers.” Id. at 151. Noting cases between

states which had referred to a policy disfavoring the

untimely assertion of rights,2? he concluded:

Clearly, although it is not based on equity juris-

prudence as such, the rule to be followed here is

that there is some point at which unexcused

delay by a state in connection with an interstate

apportionment will work to bar relief.

Id. at 152.

2! More accurately stated, the rule is that laches does not

bar the government when suing to enforce public rights, at least

when the government sues in its own courts. Guaranty Trust Co.

v. United States, 304 U.S. 126, 132-36 (1938).

22 [illinois v. Kentucky, 500 U.S. at 388; Colorado v. Kansas, 320

U S. 383, 394 (1943); Washington v. Oregon, 297 U.S. 517, 528-29

(1936); Missouri v. Illinois, 200 U.S. 496, 520 (1906).

Although the Master concluded that this rule (which

will be referred to as laches?>) could be applied against a

state, he ruled that Kansas had not been guilty of inexcus-

able delay in making its well claim and that Colorado had

not been prejudiced by Kansas’ failure to press its claim

earlier. Report at 170. Colorado takes exception to these

latter rulings.

A. LACHES CAN BE APPLIED AGAINST A

STATE IN A CONTROVERSY BETWEEN

STATES

Laches is an equitable doctrine which is designed to

prevent stale claims for the peace, repose, and welfare of

society. As the Court said in Brown v. County of Buena

Vista, 95 U.S. 157, 161 (1877):

The law of laches, like the principle of the

limitation of actions, was dictated by experien-

ce.... The lapse of time carries with it the life

and memory of witnesses, the muniments of

evidence and other means of proof. The rule

which gives it the effect prescribed is necessary

to the peace, repose and welfare of society.

23 International law recognizes laches through the principle

of “extinctive prescription.” 1 Oppenheim’'s International Law

§155¢, at 349 (Lauterpacht ed., 8th ed. 1955) (“The principle of

extinctive prescription, that is the bar of claims by lapse of time,

is recognized in International Law.”); I. Brownlie, Principles of

Public International Law 504 (4th ed. 1990) ("The lapse of time in

presentation may bar an international claim in spite of the fact

that no rule of international law lays down a time limit.”).

See also Penn Mutual Life Ins. Co. v. Austin, 168 U.S. 685,

696-99 (1898) (collecting cases); Gillons v. Shell Co. of Cali-

fornia, 86 F.2d 600, 609-10 (9th Cir. 1936), cert. denied, 302

U.S. 689 (1937) (collecting cases).

The rule that a sovereign is exempt from the opera-

tion of statutes of limitations and the consequences of

laches (quod nullum tempus occurril regit) has been

described as “a vestigial survival of the prerogative of the

Crown.” Guaranty Trust Co. v. United States, 304 U.S. 126,

132 (1938). This judicially created rule continues to be

applied by courts in the United States, however, because

it furthers the public policy of protecting rights vested in

the government (federal or state) from injury and loss by

the inadvertence of agents upon which the government

must necessarily rely. Block v. North Dakota, 461 U.S. at

290; Guaranty Trust, 304 U.S. at 132; United States v. Hoar,

26 F.Cas. 329 (C.C.D.Mass. 1821) (Story, J.).

The rule nullum tempus is not applied in every suit

brought by a sovereign, however. When a foreign sover-

eign sues in our courts, the rule is not applied to shield

the foreign sovereign from the operation of statutes of

limitation or the consequences of laches. Guaranty Trust,

304 U.S. at 135-36. It is therefore important to consider

the reason a foreign sovereign is not immune from the

operation of statutes of limitation or the consequences of

laches when it sues in our courts.

In Guaranty Trust the Court noted that, based on the

principle of comity, a foreign sovereign is not amenable to

suit in our courts without its consent. 304 U.S. at 134. But,

the Court pointed out, a foreign sovereign which volun-

tarily appears in our courts abandons its immunity from

suit and subjects itself to the rules of decision of the

forum which it has sought. /d. The Court then held that

the public interest of the forum did not require the appli-

cation of the rule nullum tempus to a foreign sovereign

and the community which it represents. /d. at 136. For

similar reasons, it would be improper to apply the rule

nullum tempus in a controversy between states in this

Court.

When a state invokes the jurisdiction of this Court to

resolve a controversy between states, it is in a position

similar to a foreign sovereign which voluntarily appears

in the courts of another sovereign. As Justice Story said in

Rhode Island v. Massachusetts, 37 U.S. (12 Pet.) 657, 751

(1838):

When, too, the highest courts of a kingdom [i.e.,

England] have most solemnly declared . . . that

when a foreign king is a plaintiff, in a court of

equity, it can do complete justice; impose any

terms it thinks proper; has him in its power, and

completely under its control and jurisdic-

tion... ; we ought not to doubt as to the course

of a State of this Union; as a contrary one would

endanger its peace, if not its existence. [Citation

omitted.]}

See also Texas v. New Mexico, 482 U.S. 124, t28 (1987) (“By

ratifying the Constitution, the States gave this Court com-

plete judicial power to adjudicate disputes among them,

[citation omitted] and this power includes the capacity to

provide one State a remedy for the breach of another.”).

In invoking the jurisdiction of this Court to settle a

controversy with another state, a state subjects itself to

the rules of decision and the policies which govern the

exercise of jurisdiction by this Court. Rhode Island v. Mas-

sachusetts, 37 U.S. (12 Pet.) at 737. The framers of the

Constitution extended the judicial power of the United

States to controversies between states, and gave this

Court original jurisdiction of cases in which a state is a

party, to provide a peaceful means of settling such dis-

putes. Georgia v. Pennsylvania R.R. Co., 324 U.S. 439, 450

(1945); Principality of Monaco v. Mississippi, 292 U.S. 313,

328 (1934); North Dakota v. Minnesota, 263 U.S. 365, 372-73

(1923); Kansas v. Colorado, 185 U.S. 125, 140 (1902); Rhode

Island v. Massachusetts, 37 U.S. (12 Pet.) at 725.24

In a controversy between states, “this court is called

upon to settle that dispute in such a way as will recognize

the equal rights of both and at the same time establish

justice between them.” Kansas v. Colorado, 206 US. 46, 98.

(1907); see also Rhode Island v. Massachusetts, 37 U.S. (12

Pet.) at 737. It would be inconsistent with the equality of

states and would not establish justice between them for

this Court to fail to consider the unexcused delay by a

state in asserting its rights and the prejudice to a defen-

dant state from failure to press the claim earlier.

24 See The Federalist, No. 80, at 534 (Jj. Cooke ed. 1961) (“It

seems scarcely to admit of controversy that the judiciary author-

ity of the union ought to extend to these several descriptions of

causes. .. . 4th. to all those which involve the PEACE of the

CONFEDERACY, whether they relate to the intercourse

between the United States and foreign nations, or to that

between the States themselves; ... ”). For a discussion of the

unique and unprecedented nature of this grant of jurisdiction,

see C. Warren, The Supreme Court and -Sovercign States 32-37

(1924).

And, as the cases cited by the Master show, the Court

has taken into account the policy disfavoring the

untimely assertion of rights in weighing the equities and

establishing justice between states. E.g., Colorado v. Kan-

sas, 320 U.S. at 394 ("These facts [Kansas’ delay while

improvements based on irrigation went forward for

twenty-one years} might well preclude the award of the

relief Kansas asks. But, in any event, they gravely add to

the burden she would otherwise bear, and must be

weighed in estimating the equities of the case.”)?5; Wash-

ington v. Oregon, 297 U.S. at 528-29 (“Here surely is not

the diligence that equity exaccs of the suitor who invokes

its distinctive jurisdiction.”); Missouri v. Illinois, 200 U.S.

496, 520 (1906) (“It would be contradicting a fundamental

principle of human nature to allow no effect to the-lapse

of time, however long.”); see also Nebraska v. Wyoming, 507

U.S. __, __, 113 S.Ct. 1689, 1691, 123 L.Ed.2d 317, 332

(1993) (arguments foreclosed by post decree acquies-

cence); Virginia v. West Virginia, 206 U.S. 290, 321 (1907)

(failure to enter upon the performance under alleged

compact for forty-three years).76

?5 Unlike the Court in Colorado v. Kansas, the Master did not

require Kansas to prove its case by clear and convincing evi-

dence, but only by a preponderance of the evidence. Report at

69-70. Kansas’ delay should “gravely add to the burden she

would otherwise bear” and “must be weighed in estimating the

equities df the case.” Applying laches is the appropriate way to

de so.

26 The reasons for applying the rule nullum tempus are

strongest when the government seeks to protect rights to lands

held as sovereign in trust for the public. Weber v. Board of State

Harbor Comm'rs, 85 U.S. 57 (1873). Yet, even in boundary cases

between states, the policy disfavoring the untimely assertion of

Moreover, it would not serve the Court’s primary

responsibility as an appellate court to ignore the policy

disfavoring the untimely assertion of rights and the prej-

udice to the defendant state which may arise from delay

in interstate compact cases. To apply the rule aullum

tempus would permit states to dredge up stale claims for

damages for violation of interstate compacts and burden

this Court with cases which are difficult to determine

because of the lapse of time and the loss of evidence.

Such cases may also present difficult issues concerning

enforcement of the Court’s decision.?7

Thus, it would not leae *o the just and equitable

settlement of controversies between states, it would not

rights applies through the doctrines of prescription and acqui-

escence. Illinois v. Kentucky, 500 U.S. at 388. The reason for these

separate doctrines in boundary disputes is that unreasonable

delay in the assertion of rights will confer jurisdiction and title

on another sovereign. Rhode Island v. Massachusetts, 37 U.S. (12

Pet.) at 734 (“{A]ll dependent rights are settled when boundary

is.“). Thus, as with adverse possession, the delay in boundary

cases must be substantial before it will constitute prescription or

acquiescence. On the other hand, in a dispute where untimely

delay only bars a claim for compensation for past injury rather

than future enforcement of rights, the delay should be much less

to constitute unreasonable delay. See I. Brownlie, Principles of

Public International Law 153, 505 (4th ed. 1990) (distinguishing

the principle of “extinctive prescription” (laches) from the doc-

trine of prescription and acquiescence applied in territorial dis-

putes in International Law).

27 For example, it is one thing to order a state to pay money

damages or repay past under-deliveries of water where there

has been an ongoing, albeit good-faith, dispute over obligations

under a Compact, as in Texas v. Mexico, 482 U.S. at 129-31. It is

another thing to impose such a remedy ona state which had no

reason to believe it would be sued.

promote the peace of the Union, and it would not serve

the Court’s primary responsibility as an appellate court

to hold that laches cannot be applied against a state in a

controversy between states in this Court involving a

claim for breach of an interstate compact.

B. KANSAS WAS GUILTY OF LACHES IN MAK-

ING ITS WELL CLAIM

Although the Special Master ruled that Kansas’ delay,

if unexcused, could bar relief, he concluded that Kansas

should not be barred by laches from chtaining relief

because of its failure to press its well claim earlier. Report

at 170.

In reaching this decision, the Master made two pre-

liminary findings. First, he found that there was no sub-

stantial evidence that Kansas knew or should have

known about the extent or effect of post-compact well

pumping-in-Colorado before 1968. Report at 169.2% Sec-

ond, he found that the record supported Colorado's

assertion that Kansas had made no complaint about well

pumping in Colorado to the Compact Administration, or

indeed to any appropriate Colorado officials, before 1984,

28 Although it is not entirely clear from the Report, the

Master apparently found that Kansas knew or should have

known about the extent of post-compact well pumping in Colo-

rado in 1968 because in that year a report was published at the

direction of the Colorado legistature (the “Wieeler Report”)

which contained estimates of pumping between 1940 and 1965.

Report at 159-60.

if the Simons, Li report?? was considered as such, or

otherwise before 1985, when Kansas asked the Compact

Administration to undertake an investigation under Arti-

cle VIII-H of the Compact. Id. at 155-56.

Notwithstanding the fact that Kansas had delayed for

at least 16 years in making a complaint (1968 to 1984), the

Master concluded “that Kansas has not been guilty of

inexcusable delay in making its well claim, and that

Colorado has not been prejudiced by Kansas’ failure to

press its claim earlier.” Report at 170. Colorado takes

exception to these findings. While the Master's findings

on these issues may deserve respect, the ultimate respon-

sibility for deciding what are correct findings of fact

remains with the Court. Colorado v. New Mexico, 467 U.S.

310, 317 (1984). This is particularly true where the Master

has misapprehended the considerations which govern the

decision. Id. at 323.

Cases applying laches provide helpful guidance in

this case. Laches has been defined as “the neglect or

29 In September 1983, Kansas hired Simons, Li & Associ-

ates, Inc., an engineering firm, to make an investigation into

declining Stateline flows. Jt. Exh. 88 at 1.1. The report was

completed in 1984 and provided to Colorado in June of that

year. Exhibit 23 to Colorado’s Motion to Stay Based on Kansas’

Failure to Exhaust Its Administrative Remedies (filed May 13,

1988). The report formed the basis for Kansas’ request for a

special meeting of the Arkansas River Compact Administration

on March 28, 1985, at which it requested an investigation of

alleged Compact violations by Colorado. Exhibit 24 at 6 to

Colorado's Motion to Stay.

# So far as Colorado is aware, there is no statute of limita-

tions that applies to claims for breach of interstate compact

delay in bringing suit to remedy an alleged wrong, which

taken together with lapse of time and other circum-

stances, causes prejudice to the adverse party and oper-

ates as an equitable bar.” A.C. Aukerman Co. v. R.L.

Chaides Const. Co., 960 F.2d 1020, 1028-29 (Fed.Cir. 1992).

Accord Costello v. United States, 365 U.S. 265, 282 (1961);

Gardner v. Panama R.R. Co., 342 U.S. 29, 31 (1951);

Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946); Russell v.

Todd, 309 U.S. 280, 287 (1940); Southern Pac. Co. v. Bogert,

250 U.S. 483, 488-89 (1919).9!

Historically, laches developed as an equitable defense

based on the maxim vigilantibus non dormientibus aequitas

subvenit (equity aids the vigilant, not those who sleep on

their rights). Stone v. Williams, 873 F.2d 620, 623 (2d Cir.

1989), cert. denied, 493 U.S. 959 (1989); Independent Bankers

generally or to breach of the Arkansas River Compact specifi-

cally. See Report at 164 note 58. However, the jurisdiction of the

Court is “basically equitable in nature,” Ohio v. Kentucky, 410

U.S. 641, 648 (1973), and this Court has looked to doctrines of

equity as guides to decisions in cases between states. Texas v.

Florida, 306 U.S. 398, 405 (1939); see also Vermont v. New York, 417

U.S. 270, 277 (1974); Massachusetts v. Missouri, 308 U.S. 1, 15

(1939). :

3! In recent years, decisions by Federal Courts of Appeal

have distinguished the elements necessary to establish laches

from the elements necessary to establish estoppel, something

not always clear in older cases applying laches. The distinction

is important because it carries over into the effects that the two

defenses have on litigation. E.g., Studiengesellschaft Kohle v. East-

man Kodak Co., 616 F.2d 1315, 1326 (Sth Cir. 1980); Advanced

Hydraulics, Inc. v. Otis Elevator Co., 525 F.2d 477, 479 (7th Cir.),

cert. denied, 423 U.S. 869 (1975). For that reason, Colorado

believes that recent Court of Appeals decisions are particularly

helpful on the issue of laches.

Assn. of America v. Heimann, 627 F.2d 486, 488 (D.C.Cir.

1980) (per curiam).

The length of time which may be deemed unreason-

able has no fixed boundaries, but rather depends on the

circumstances of each case. Young v. The Key City, 81 U.S.

(14 Wall.) 653, 660 (1872); Aukerman, 960 F.2d at 1032 and

cases cited therein; Goodman v. McDonnell Douglas Corp.,

606 F.2d 800, 805-06 (8th Cir. 1979), cert. denied, 446 U.S.

913 (1980). While a statute of limitations may provide a

frame of reference, it is not controlling as a measure of

equitable relief. Holmberg v. Armbrecht, 327 U.S. at 396. As

the Court said in that case:

Such statutes have been drawn upon by equity

solely for the light they may shed in deter-

mining that which is decisive for the chancel-

lor’s intervention, namely, whether the plaintiff

has inexcusably slept on his rights so as to make

a decree against the defendant unfair. See

Russell v. Todd, supra (309 US [280] at 289, 84

L.Ed. 761, 60 S.Ct. 527 [(1940)]). “There must be

conscience, good faith, and reasonable diligence

to call into action the powers of the court.”

McKnight v. Taylor, 1 How (U.S.) 161, 168, 11

L.Ed. 86, 88 {(1843)]. A federal-eaurt may not be

bound by a State statute of limitation and yet

that court may dismiss a suit where the plain-

tiffs’ “lack of diligence is wholly unexcused; and

both the nature of the claim and the situation of

the parties was such as to call for diligence... . ”

Benedict v. New York, 250 U.S. 321, 328, 63 L.Ed.

1005, 1011, 39 S.Ct. 476 [(1919)}.

Holmberg v. Armbrecht, 327 U.S. at 396.

For the purpose of laches the relevant time period

begins to run when the plaintiff knew or, in the exercise

of reasonable diligence, should have known of the facts

giving rise to its claim. Aukerman, 960 F.2d at 1032; White

v. Daniel, 909 F.2d 99, 102 (4th Cir. 1990); Jensen v. Western

Irrigation & Mfg., Inc., 650 F.2d 165, 168 (9th Cir. 1980);

Studiengesellschaft Kohle v. Eastman Kodak Co., 616 F.2d

1315, 1326 (5th Cir. 1980). Laches will not be imputed to

one who has been justifiably ignorant of facts which

create a cause of action, but a plaintiff must be diligent

and make such inquiry and investigation as the circum-

stances suggest. Benedict v. New York, 250 U.S. 321, 328

(1919); City of New Albany v. Burke, 78 U.S. (11 Wall.) 96,

107 (1871); Studiengesellschaft Kohle, 616 F.2d at 1326;

Potash Co. of America v. International Minerals & Chemical

Corp., 213 F.2d 153, 155 (10th Cir. 1954).

1. Kansas Knew or Should Have Known of the

Facts Giving Rise to Its Claim by 1956

The first question in the laches analysis is whether

Kansas was diligent in asserting its rights from the time it

knew or, in the exercise of reasonable diligence, should

have known of its claim. Aukerman, 960 F.2d at 1032;

White v. Daniel, 909 F.2d at 102. The Master found that

[t]he extent of postcompact well pumping in Colorado

was not generally known until approximately 1968, and

there is no substantial evidence that Kansas knew or

should have known about the extent or effect of such well

development before that time.” Report at 169. Colorado

takes exception to this finding.

The record in this case establishes that evidence of

increased post-compact well development and pumping

in Colorado was available long before 1968. The precise

extent of such well development and pumping may not

have been known prior to 1968, but the fact that the

number of wells and the amount of pumping had

increased substantially was public knowledge by 1956.

A January 1956 report prepared by the United States

Geological Survey (“USGS”) on ground water and the

status of investigations in Colorado stated:

Ground water has long been used in Colo-

rado for domestic, industrial, and municipal

supplies but until recently it was used only on a

minor scale for irrigation. With the development

- of efficient pumps, engines, and motors and the

availability of cheaper electricity and petroleum

products for fuel, the pumping of ground water for

irrigation has grown by leaps and bounds since the

early 1930's and is continuing to grow at an ever-

accelerated pace. Data accumulated to date indicate

that the number of irrigation wells in Colorado

increased by about 150 percent between 1940 and

1953. ...

Colo. Exh. 95 at 4-5 (emphasis added).

With specific reference to ground water in the

Arkansas River Basin, the January 1956 report stated:

The alluvium and terrace deposits of the

Arkansas Valley and its principal tributaries

constitute an important aquifer in Colorado, but

few data concerning the extent of development

are available. On the basis of an inventory of

irrigation wells made in the main stem of the

valley in 1942 and of later detailed studies in

some of the tributary valleys, it is estimated that

there are now 1,000 irrigation wells which discharge

about 165,000 acre-feet of water annually for the

irrigation (largely supplemental) of more than

100,000 acres of land.

Colo. Exh. 95 at 7-8 (emphasis added). Duane D. Helton,

one of Colorado’s principal experts, Report at 145 note

57, relied on this report to show that development of

wells in Colorado was common knowledge in 1956. RT

Vol. 115 at 96-97.32

In December 1956, the Arkansas River Compact

Administration “held considerable discussion concerning

the activity of well drilling and its effect on conditions.”

Minutes of the Arkansas River Compact Administration

32 The January 1956 report was one of a series of reports

published by the Colorado Water Conservation Board for use by

the public and federal and state agencies as part of cooperative

investigations with the USGS. Colo. Exh. 95 at 1; RT Vol. 81 at

87-91 (Helton) (describing history of cooperative studies with

the USGS). The Colorado Water Conservation Board is a Colo-

rado state agency with the duty to promote the conservation of

the waters of the State of Colorado. Colo.Rev.Stat. §37-60-101, e?

seq. The director of the Colorado Water Conservation Board is

one of the three Colorado representatives to the Compact

Administration. Arkansas River Compact, Art. VIII-C. The

USGS conducts investigations and measurement of water

resources throughout the nation, often in cooperation with state

agencies. Colo. Exh. 95 at 1-3, 17. See Arkansas River Compact,

Art. VIII-G(2) (the director of the USGS is requested to collabo-

rate with the Compact Administration and state officials in the

systematic determination and correlation of data). Prior to the

cooperative investigations in Colorado, the USGS had done

investigations of ground water resources in Hamilton, Kearny,

and Finney Counties in Kansas, which were published by the

State Geological Survey of Kansas. Kan. Exhs. 447 and 448.

Annual Meeting (Dec. 11, 1956) at 15 (Jt. Exh. 19). Other

reports published before 1968 also noted the conversion

to more efficient pumps and substantially increased post-

compact well pumping in the Arkansas River Valley in

Colorado. Jt. Exh. 61 at 3 (“With the advent of better well-

drilling methods, efficient pumps and the availability of

electrical power, the development of ground-water [in the

Arkansas River Valley] to supplement surface-water sup-

plies increased rapidly, particularly in the drouth period

of the early 1950’s.”) (published April, 1963); Jt. Exh. 136

at 37, 39-40 (USGS Water-Supply Paper on ground water

resources of Prowers County, Colorado, published 1965);

Jt. Exh. 137 at 45-46 (USGS Water-Supply Paper on

ground water resources of Crowley County, Colorado,

published 1965).

Moreover, officials in Kansas were aware of well

development in Colorado before 1968. Colorado offered

the deposition of Howard C. Corrigan, the former Kansas

Water Commissioner of the Garden City Field Office who

was employed by the Kansas Division of Water Resources

for -Imost 40 years.>? Colo. Exh. 21. Mr. Corrigan was

asked in his deposition:

3 Mr. Corrigan was employed by the Kansas Division of

Water Resources from 1947 to 1987. Colo. Exh. 21 at 5-8. He was

assigned to the Garden City office it 1947 and was the only

representative of the Kansas Division of Water Resources in

Garden City until 1949. Id. at 6. He was the assistant water

commissioner in Garden City from 1949 to 1963, and water

commissioner of the Garden City field office from 1963 until his

retirement in 1987. Id. at 6-7. As water commissioner, he had

responsibility for the administration of all water within south-

western Kansas, including operations under the Arkansas River

Q: When did you become aware of well

development in the State of Colorado?

A: Oh, shoot, back in the ‘50's.

Colo. Exh. 21 at 121. He was also asked:

Q: ...Did you ever discuss well develop-

ment in Colorado with any of the Colorado offi-

cials?

A: Qh, yes, that was discussed many

times. ...

*ewe

Q: Did you discuss it in terms of the affect

[sic] of well development on stream flows?

A: That has been discussed, yes.

Q: Do you recall when those discussions

occurred?

A: I can’t give you dates, no.

Colo. Exh..21 at 122. In response to an interrogatory by

Colorado, Mr. Corrigan had been listed by Kansas as a

person with knowledge of unregulated development of

post-compact alluvial wells in Colorado. The following

question and answer occurred during the deposition:

Q. At the conclusion of Mr. Robbins’ direct

examination, ... you were asked about an inter-

rogatory question that Colorado had pro-

pounded to Kansas and you were asked, you

Compact. Id. at 8-10. Kansas had planned to call him as a wit-

ness, RT Vol. 34 at 131; but he was hospitalized and was not

called to testify. RT Vol. 39 at 6. Colorado then offered his

deposition, which was admitted into evidence by the Master in

a written order. Order Admitting Exhibits (Dec. 16, 1991).

were listed as one who had knowledge of the

first factor which is the unregulated develop-

ment of post-Compact alluvial wells as contrib-

uting to material depletions at the state line.

And I understood you to say that you had no

knowledge of any facts in that regard. ... Would

you care to clarify your testimony on that point?

A. Well, emphasizing the facts that |

would have would be the various times of

inspecting and going up into Colorado. I visu-

ally inspected the various development of wells

and the wells that were drilled along the

Arkansas River Basin which indirectly took

water out of the river increasing the transit

loss... . [EJach and every year since the estab-

lishment of the Compact J] have computed the

transit losses. And a lot of it, I think, was due to

a lot of this development of wells in the - along

the Arkansas River Basin in the alluvial (sic].

Colo. Exh. 21 at 165-66. Colorado’s counsel then followed

up on this answer with the following questions:

Q. And with regard to the post-Compact

well development that you inspected a number

of times in Colorado, when did that occur?

A. That occurred all during the period of

time from the ‘50's right on up to the - ‘87. I was

up there at various times and there has been

wells that have been developed just as |

stated....

Q. And you inspected those periodically

all through the ‘50’s, ‘60's and ‘70's?

A. It was noted during those periods of

times, yes, at different times, and those wells

were pumping.

Colo. Exh. 21 at 167.

The Master acknowledged that the depositions of

Kansas’ officials offered by Colorado showed that these

men were aware of some well development in Colorado

before 1968, and that some informal discussions had

occurred within the Compact Administration. Report at

164.4% However, he states that the evidence is “sketchy”

and “does not demonstrate that these officials were aware

of the number of wells, the extent of Colorado’s purnp-

ing, or the impact or even potential impact of pumping

on usable Stateline flows.” Id.

The Master misconceives the issue. The issue is not

whether these men had actual knowledge of the number

of wells in Colorado, the precise extent of pumping in

Colorado, or the impact or potential impact of pumping

on usable Stateline flows. The issue is whether Kansas

knew or, in the exercise of reasonable diligence, should

have known of facts giving rise to its claim before 1968.

Aukerman, 960 F.2d at 1032; White v. Daniel, 909 F.2d at

™ In fact, formal discussion of well drilling and its effect on

conditions did occur at the annual meeting of the Compact

Administration in 1956. Minutes of Arkansas River Compact

Administration Annual Meeting (Dec. 11, 1965) at 15 (Jt. Exh.

19). Colorado also offered the deposition of Carl Bentrup, a

farmer from Deerfield, Kansas, who was a Kansas representa-

tive to the Compact Administration from 1957 to 1988. Colo.

Exh. 17 at 5-6, 34. Mr. Bentrup did not have knowledge of well

development in Colorado in the 1950s, but testified that he

remembered wells being drilled in Colorado in the 1960s. Id. at

46-47. He testified: “On tours you gradually noticed more

wells.” Id. at 47. “And,” he said, “we were beginning to get quite

concerned about wells in Colorado and I naturally was looking

for them, noticing them on what tours we were taking.” /[d. Mr.

Bentrup’s deposition was admitted into evidence by the Master.

Order Admitting Exhibits (Dec. 16, 1991).

102. Colorado offered the deposition of Mr. Corrigan to

show that at least one key Kansas official knew about

well development in Colorado in the 1950s, had made

inspections in Colorado from the 1950s right up to 1987,

had made computations of transit losses each year since

the Compact was adopted, and believed that wells indi-

rectly took water from the river increasing the transit

losses and that a lot of the transit losses were due to

wells.

Colorado’s evidence was uncontroverted. Kansas did

not call any witnesses to testify that Kansas was not

aware of increased post-compact well development and

pumping in Colorado in the 1950s or early 1960s or its

potential impact on Stateline flows. In fact, Edward

DeKeyser, a witness called by Kansas who was the super-

intendent of the Amazon Ditch in Kansas from 1939 to

1981, RT Vol. 33 at 65-67, testified that in 1956 his ditch

company board became very concerned about the decline

in Stateline flows and instructed him to go to Colorado to

investigate, and that he made an investigation of well

development in Colorado in 1956 from property tax

records. Id. at 82-84.

Furthermore, Stateline flows declined substantially

from 1952-56 and again in-the early 1960s. Report at

142-43. While these declines may have been due in large

art to drought and implementation of the Compact, the

eclines were sufficient to call for inquiry and investiga-

tion by Kansas, and in fact did result in an investigation

by Mr. DeKeyser at the direction of his ditch company

board in 1956. Moreover, there was “considerable discus-

sion concerning the activity of well drilling and its effect

on conditions” by the Compact Administration at its

annual meeting in December 1956. Minutes of the

Arkansas River Compact Administration Annual Meeting

(Dec. 11, 1956) at 15 (Jt. Exh. 19).

Laches will not be imputed to one who has been

justifiably ignorant of facts which create his right or

cause of action. Studiengesellschaft Kohle, 616 F.2d at 1326;

Potash, 213 F.2d at 155. But ignorance will not of itself

excuse delay. Id. “The party must be diligent and make

such inquiry and investigation as the circumstances rea-

sonably suggest, and the means of knowledge are gener-

ally equivalent to actual knowledge.” Potash, 213 F.2d at

155; Benedict v. New York, 250 U.S. at 328; see also City of

New Albany v. Burke, 78 U.S. (11 Wall.) at 107 (possession

of the means of knowledge of fraud is in equity tanta-

mount to knowledge itself).

Applying these principles to this case, it is clear that

whether or not Kansas actually knew of the number of

wells, the precise extent of pumping in Colorado, or the

impact or potential impact of post-compact well pumping

in Colorado on usable Stateline flows prior to 1968, it had

sufficient knowledge, or the means of knowledge, to call

for an inquiry and an investigation of post-compact well

pumping in Colorado by 1956. The report published in

January 1956, the declines in Stateline flows from 1952-56,

the inspections made by Mr. Corrigan, the investigation

undertaken by Mr. DeKeyser in 1956, and the discussion

at the Compact Administration’s annual meeting in 1956

demonstrate that sufficient information was available to

Kansas to call for an inquiry and an investigation of post-

compact well pumping at that time. Further, Colorado

and the USGS continued to publish information about

well development in the Arkansas River Valley in Colo-

rado from 1956 to 1968. Jt. Exhs. 61, 67-69, 136, 137.

Several of these reports noted the conversion to more

efficient pumps and increased well development and

pumping in Colorado. Jt. Exh. 61 at 3; Jt. Exh. 136 at 37,

39; Jt. Exh. 137 at 45.

The Master states, however, that none of the reports

relating to well pumping in Colorado deals with the issue

of impact on usable Stateline flow. Report at 161. Once

again, this is not the relevant inquiry. The issue is

whether Kansas had sufficient information to investigate

and determine if a Compact violation existed. Potash, 213

F.2d at 155; Pearson v. Central Ill. Light Co., 210 F.2d 352,

356-57 (7th Cir. 1954); Naxon Telesign Corp. v. Bunker Ramo

Corp., 517 F. Supp. 804, 808 n. 3 (N.D.IIl. 1981), aff'd, in

_ part, 686 F.2d 1258 (1982) (“Even if Naxon had been

‘unsure’ of the infringement, it had a duty to promptly

investigate and determine if infringement existed.”).

The potential impact of an increase in well pumping in

Colorado was known by officials-in Kansas prior to the

Compact. Kan. Exh. 205A at 1-2 (letter dated July 13, 1940,

from George S. Knapp to W.E. Stanley describing how Colo-

rado could increase consumption without increasing irri-

gated acreage by increasing well pumping); see also Kan. Exh.

448 at 39-69, 78-80 (1943 report prepared by the USGS on

ground water resources of Hamilton and Kearny Counties,

Kansas, discussing principles governing the occurrence and -

movement of ground water and the effect of pumping on

water levels and stream flow).°5

4S Moreover, Colorado was prejudiced in proving that Kan-

sas had actual knowledge of increases in post-compact well

Thus, by 1956, Kansas had sufficient information

about increased well pumping in Colorado and its poten-

tial impact on usable Stateline flows to call for an investi-

gation to determine if a Compact violation existed. Yet

Kansas did nothing until 1983 when it hired Simons, Li to

make an investigation of declining Stateline flows, and

made no request for an investigation by the Compact

Administration until 1985. Kansas delayed 29 years

(1956-1985) in making a request for an investigation by

the Compact Administration after it knew or, in the exer-

cise of reasonable diligence, should have known of facts

giving rise to its claim, a delay longer than its 21-year

delay in Colorado v. Kansas, 320 U.S. at 394.

The Master was unwilling to find that Kansas

delayed unreasonably in asserting its rights because nei-

ther state seemed to be aware that well pumping in

Colorado depleted usable Stateline flows. He states:

Colorado also accuses Kansas of sleeping on

its rights, saying that is the issue. . . . This latter

argument, however, seems to undercut Colo-

rado’s reliance on its own good faith. At least,

pumping in Colorado by 1956 and the potential impact of such

increases on usable Stateline flow because key witnesses from

that period, including Robert V. Smrha, William E. Leavitt, and

Roland H. Tate, had died. Report at 158-59. Smrha was the

Kansas Chief Engineer from 1951 to 1972, the chief state official

charged with the administration of water rights in Kansas. See

Arkansas River Compact, Art. VIII-C. As the Kansas Chief Engi-

neer, Smrha was a Kansas representative to the Compact

Administration from 1951 to 1972. See Annual Reports of the

Arkansas River Compact Administration for the years 1951 to

1972 (Jt. Exh. 18). Leavitt and Tate were Kansas representatives

to the Compact Administration from 1949 to 1957. Id.

Colorado’s argument requires that Kansas rec-

ognize a potential compact violation while Colo-

rado is excused.

Report at 165.

The Master confuses two distinct issues. Colorado

never suggested that there was no evidence of a potential]

Compact violation. However, several Colorado witnesses

testified that, in their opinion, pumping by wells

upstream from Colorado ditches reduced diversions by

Colorado ditches, not Stateline flows, or that depletions

caused by well pumping were offset by transmountain

return flows. RT Vol. 66 at 44-47 (Miles); RT Vol. 78 at

61-62, 85-86 (Danielson); RT Vol. 84 at 51-52, Vol. 115 at

62-63 (Helton). Dr. Jeris A. Danielson, the Colorado

State Engineer from 1979-1992, testified that his prede-

cessor as State Engineer, C.J. Kuiper, had continued to

issue well permits near the Stateline in the 1970s because

of his belief that there was still a substantial amount of

unused water passing Garden City and because Kansas

was allowing wells to be drilled in Kansas. RT Vol. 76 at

112-15. Thus, Colorado argued that its officials believed

in good faith that post-compact well pumping did not

violate the Compact. See Aukerman, 960 F.2d at 1033 (a

good-faith belief in the merits of a defense may tilt mat-

ters in the defendant's favor). However, the fact that

% The Master agrees that transmountain return flows offset

some depletions in Colorado: “The compact does not cover

transmountain imports, and Kansas has acknowledged that it

makes no claim to such water. However, the return flows from

such imports do add to the Arkansas River supply and do act to

offset depletions caused by use in Colorado.” Report at 257.

Colorado officials believed in good faith that post-com-

pact well pumping did not violate the Compact does not

in any way detract from the fact that for 29 years Kansas

knew or, in the exercise of reasonable diligence, should

have known of facts giving rise to its claim.97

2. Kansas Has No Valid Excuse for its Lengthy

Delay

Once it is established that Kansas had delayed for a

lengthy period of time in making a complaint about post-

compact well pumping in Colorado, the inquiry shifts to

whether Kansas had a justifiable excuse for its delay.

Although there was no specific evidence to explain why

Kansas did not complain sooner, Report at 170, the Mas-

ter speculated that:

.. . Kansas may well have been relying upon the

slowly developing regulatory system in Colo-

rado for protection. This program was evolving

all through the 1970s, .. . It is true that the

implementation of this requirement has proved

lacking, but that result could not have been

known at the outset.

Id. Having posited that Kansas was relying upon Colo-

rado’s efforts to regulate pumping, the Master ruled that

Kansas’ reliance on Colorado was a justifiable excuse for

not making a complaint:

17 Moreover, to the extent the Master focused on Colorado’s

actions rather than Kansas’ delay, he distorted the basic concept

of laches. Aukerman, 960 F.2d at 1031-32. Laches foctises on the

dilatory conduct of the plaintiff and the prejudice which the

plaintiff’s delay has caused. Id.

I think that Kansas had a right to rely, at least

‘initially, upon the Colorado efforts to regulate

pumping, and the law should not penalize a

state under those circumstances. . . . Moreover,

equitable defenses should not be applied in

ways to encourage or force early litigation

between states, particularly when a state is

implementing efforts to address the problem.

Report at 170.

The reasons suggested by the Master are not justifia-

ble excuses for Kansas‘ lengthy delay in making a com-

plaint. First, there is no evidence in the record that

Kansas was relying upon “the slowly developing regula-

tory system in Colorado for protection” or that Colo-

rado’s actions had anything to do with Kansas’ decision

not to complain. See Potash, 213 F.2d at 159. Kansas knew

or had reason to know of increased well development

and pumping in Colorado by at least 1968 or, if Colorado

is correct, much earlier. For at least 16 years after it knew

or had reason to know of facts giving rise to its claim,

Kansas did not request an investigation by the Compact

Administration, it made no complaint to appropriate Col-

orado officials, and it did not state that it was forebearing

from making a complaint in reliance on actions being

taken by Colorado. Nothing put Colorado on notice that

Kansas was concerned about the possible effects of well

pumping or that Colorado was at risk of being sued for a

Compact violation.

Second, Colorado was implementing efforts to

address the impacts of well pumping on senior surface

rights in Colorado, not Stateline flows. Report at 133,

162.38 If Kansas was relying on Colorado’s efforts to

address a Compact violation, Kansas should have at least

informed Colorado of its intent to pursue a claim in the

event actions by Colorado were unsuccessful. Cf. Stud-

iengesellschaft Kohle, 616 F.2d at 1328. This is not a case

where Kansas had complained and Colorado was imple-

menting measures to address the problem. Kansas simply

did nothing untii 1984, when it furnished Colorado with a

copy of the Simons, Li report.

Moreover, Kansas could have investigated a possible

Compact violation without bringing litigation. The

Arkansas River Compact created an interstate agency

which had authority to investigate violations of the Com-

pact, Arkansas River Compact, Art. VIII-A, VIH-H, and

Kansas was represented on the Compact Administration

by the Kansas Chief Engineer, the chief state official

charged with administration of water rights, and by two

local water right owners. Id., Art. VIII-C. Further, during

the lengthy period that Kansas delayed in making a com-

plaint, it made no effort to have the Compact Administra-

tion or the USGS collect or preserve evidence that would

be needed to determine its claim, including power

records, power coefficients, tributary inflows, and flows

at Garden City. See Arkansas River Compact, Art. VIII-

*% While the Colorado State Engineer believed that wel)

pumping had reduced flows of the Arkansas River in Colorado

available to senior Colorado ditches, he also believed that there

was a substantial amount of water passing Garden City unused.

RT Vol. 76 at 112-15 (Danielson). Thus, the Colorado State Engi-

neer did not adopt regulations to protect Stateline flows. Id. at

84-86 (Danielson). See Report at 161-62.

G(1), VIII-G(2). Under the circumstances, reliance on Col-

orado’s efforts to regulate pumping for protection is not a

justifiable excuse for Kansas’ delay.

The Master appeared to be unwilling to find that

Kansas’ delay was inexcusable because in Texas v. New

Mexico, 482 U.S. 124 (1987), the Court held that New

Mexico could not escape liability for past failures to

perform its duties under the Compact based on good-

faith differences about the scope of undertakings under

the Compact. Report at 165-66. In that case, however,

Texas brought its concerns to the attention of the Pecos

River Compact Commission in 1957. Texas v. New Mexico,

462 U.S. 554, 560-61 (1983). Thereafter, Texas continued to

try to resolve its concerns through the Compact Commis-

sion until, in 1974, it finally brought suit against New

Mexico. Id. at 561-62. Moreover, contrary to the Master‘s

belief, Report at 167, New Mexico did raise the defense of

laches, which was rejected by Special Master Jean S.

Breitenstein:

Texas had asserted its claims in the administra-

tive forum for many years before bringing this

suit. The continued efforts of Texas to have the

Commission adopt its position does not pre-

clude it from bringing this action. Otherwise,

Supreme Court litigation would replace negotia-

tion. The Master rejects the defense of laches.

Report of Special Master on His Decision and Supplemen-

tal Decision Regarding the Affirmative Defenses of New

Mexico to the Complaint of Texas, Texas v. New Mexico,

No. 65, Original (Oct. Term 1975) at 13 (May 6, 1979).

In this case, Kansas had not asserted its claims in the

administrative forum for many years before bringing this

suit. Cf. Gull Airborne Instruments, Inc. v. Weinberger, 694

F.2d 838, 844 n. 8 (D.C. Cir. 1982) (plaintiff’s many

attempts to receive administrative relief served to put the

government on notice that plaintiff was not sleeping on

its rights). Charging Kansas with unreasonable delay in

this case would not “encourage or force early litigation

between staves.” Here, Kansas had available a means to

investigate a possible violation of the Compact through

an investigation by the Compact Administration.

Arkansas River Compact, Art. VIII-H. The Compact also

provides that the Compact Administration may refer mat-

ters for arbitration. Id., Art. VIII-D. Thus, Kansas had

means available, short of litigation, to make a complaint,

but failed to make use of those means. Although equita-

ble defenses should not be applied to encourage or force

early litigation between states, it is sound public policy to

encourage a state to give early notice of and an oppor-

tunity to remedy possible compact violations to a sister

state, rather than sitting back silently while damages

accrue.

The Master also suggested that Kansas’ delay should

be excused, at least for some period of time, becaure

determining what flows are usable, and depletions to

usable Stateline flows, in contrast to depletions to the

total Stateline flows, is not simple. Report at 161, 162-63.

While Kansas may have been entitled to a reasonable

period of time to conduct an investigation into the basis

for its claim, that excuse does not justify Kansas’ lengthy

delay in this case. For example, the 1983-84 investigation

conducted by Simons, Li & Associates, Inc., for the State

of Kansas was completed in five months. Jt. Exh. 88 at 1.1.

Simons, Li did not hesitate to make a preliminary assess-

ment of what flows were usable or to make a preliminary

estimate of depletions to usable flows from post-compact

well pumping in Colorado. [d. at 5.2 to 5.5. Thus, the

difficulty in determining what flows are usable, and

depletions to usable Stateline flows, does not justify Kan-

sas’ lengthy delay in this case. See Stone v. Williams, 873

F.2d at 625 (“But these reasons for delay cannot last

forever for the purposes of laches. A point arrives when a

plaintiff must either assert her rights or lose them.”).

3. Colorado Was Prejudiced by Kansas’ Unex-

cused Delay

The final inquiry in the laches analysis is v aether

Colorado was prejudiced by Kansas’ delay. Courts have

recognized a variety of factors which constitute prejudice

to the defendant from the plaintiff’s delay.9

Evidentiary or “defense” prejudice may arise due to

the loss of evidence, the death of witnesses, or the fading

memories of other witnesses, thereby undermining the

court’s ability to determine the facts. Brown v. County of

Buena Vista, 95 U.S. at 161; Aukerman, 960 F.2d at 1033;

Stone v. Williams, 873 F.2d at 625-26; Studiengesellschaft

39 Federal Courts have generally applied a sliding scale on

the issue of prejudice. E.g., White v. Daniel, 909 F.2d at 102;

Goudman v. McDonnell Douglas Corp., 606 F.2d at 807. The shorter

the delay, the greater the prejudice the defendant must show

and vice versa. /d. Obviously, the longer the delay, the greater

the likelihood that witnesses have died, memories have faded,

and evidence has been lost or obscured, which is certainly true

in this case.

Kohle, 616 F.2d at 1326-27; Goodman v. McDonnell Douglas

Corp., 606 F.2d at 808 n. 17. See Indiana v. Kentucky, 136

U.S. 479, 511 (1890), quoting Rhode Island v. Massachusetts,

45 U.S. (4 How.) 591, 639 (1846).

Economic prejudice may arise where the defendant

will suffer the loss of monetary investments or incur

damages which likely would have been prevented by

earlier suit. Aukerman, 960 F.2d at 1033. In other cases

prejudice may arise because a defendant has changed its

position in a manner that would not have occurred but

for the plaintiff’s delay. Gull Airborne Instruments, Inc. v.

Weinberger, 694 F.2d at 844.

The Master acknowledged that there were problems

with missing data in trying to reconstruct pumping in

Colorado. Report at 157, 189, 202. Nevertheless, he con-

cluded that Colorado had not suffered prejudice by Kan-

sas’ delay because data from the pre-compact or early

post-compact years “was simply not being collected at

that time.” Id. at 157. He states: “The lack of data suggests

that neither state could be expected to have been aware of

the effect of pumping.” Id. Further, he found that the

comprehensive evaluation of the hydrology of the

Arkansas River Valley in Colorado by the USGS in

1963-68 “used and collected all the data then reasonably

available.” Id. at 158. He states: “If Colorado has suffered

any prejudice because of data missing prior to 1963, it is

not because Kansas failed to complain about pumping,

but simply because the data were not kept.” Jd. Colorado

takes exception to these findings.

a. Evidentiary Prejudice

First, Colorado established that electric power

records for the period 1940-63 were missing. Colo. Exh.

165", Table 2.2; RT Vol. 69 at 107-08 (Slattery). The fact

that data concerning pumping was not being collected

does not mean that electric power records could not have

been obtained if Kansas had made a timely complaint.

The USGS did collect some power records during~ the

1963-68 investigation, but there is simply no way to know

if the USGS “used and collected all the data then reason-

ably available” to estimate pumping for the period

1940-63. The electric power records or other data used to

make those estimates were not published by the USGS,

the data collected during the study to make those esti-

mates was not preserved, and the man who made the

USGS estimates for those years, R. Theodore Hurr, had

died and was not available to explain the basis on which

he had made those estimates. Report at 187; RT Vol. 71 at

51-53 (Slattery); RT Vol. 126 at 58 (Book); RT Vol. 130 at

48-49 (Simpson). In fact, there is no evidence that the

USGS pumping estimates for the 1940s were based on

power records at all or that the USGS collected any power

records for that period. RT Vol. 130 at 49, 51-52 (Simp-

son).

49 To estimate pumping in the CENTEL (Suuthern Colorado

Power Company) service area privr to 1959 and in the Southeast

Colorado Power Association (SECPA) service area prior to 1953,

Kansas relied upon a tabulation of power company records

prepared by the USGS. Colo. Exh. 660 at 4, 9. This tabulation

went back to 1948 for the Pueblo Office of the Southern Colo-

rado Power Company and for the Southeast Colorado Power

Association; but, it is not clear when the USGS tabulation was

The main focus of the USGS investigation was to

inventory wells, map the valley-fill deposits, measure

water levels, and read power meters to develop detailed

estimates of pumping for the period 1964-68. Jt. Exh. 66 at

4 ("Since 1964, most of the electric and gas meters on

irrigation wells have been read during the spring and fall

measurements; these readings provide the major source

of data to compute ground-water withdrawal.”). There is

no indication in the 1970 USGS report that the estimates

of ground water withdrawals before 1964 were significant

for the purposes of that investigation. See RT Vol. 130 at

48-49 (Simpson). Nor is there any report on how those

estimates were made. RT Vol. 71 at 51-52 (Slattery). Had

Kansas complained in a timely manner in 1956, Colorado

could have begun the cooperative investigation with the

USGS before 1963 and could have attempted to collect |

missing power data for the years 1940-63. Further, had

Kansas complained in 1968, the data used by the USGS to

estimate pumping for the years 1940-63 would have been

available, and Mr. Hurr would have been available to

explain the data and assumptions he had used to make

those estimates. Thus, the Master is simply wrong in

finding that Colorado did not suffer prejudice because

Kansas failed to complain.

prepared. Colorado used identical power data for these two

utilities to make estimates for those years; but, Colorado also

obtained power data from Colorado State University, which had

collected power data from the Southern Colorado Power Com-

pany that went back to 1932 and from the SECPA that went back

to 1946. See infra note 53. Moreover, both Colorado and Kansas

obtained power records from other utilities.

The Master acknowledged that electric power records

were missing for the period 1940-60, but suggested that

the prejudice to Colorado was not substantial because the

missing records could be estimated by regression analy-

ses. Report at 157. That was true to an extent; but, the

Master concluded that the regression analyses which Col-

orado’s experts made to estimate missing electric power

records for the 1940-45 period were not reliable because

they were based on a single set of data for the Pueblo

Office of the Southern Colorado Power Company. Id. at

189-90. Further, the Master rejected Colorado’s estimates

for 1946-49, which included power records that were

estimated by regression analyses, in part because the

power records used to make those estimates were incom-

plete and might be inaccurate. Id. at 188-89, 199-200.

Thus, it is totally inconsistent for the Master to say that

the prejudice to Colorado from missing electric power

records was not substantial when he rejected Colorado's

estimates of pumping for the 1940s because there was

insufficient data to support them. Id. This was not an

insignificant issue. In the Report, he states that the

amount of the pre-compact pumping allowance was the

largest quantitative issue in the case. Id. at 182. Thus,

Colorado suffered substantial prejudice from Kansas’

delay.*!

4! The Master suggests that there is some merit to Kansas’

contention that the Colorado experts did not make any serious

complaint about the lack of pre-1965 data. Report at 157. In fact,

Mr. Slattery testified that the Colorado estimates before 1960

were more uncertain than the estimates after 1960 because of the

lack of data. RT Vol. 69 at 93-94. Moreover, while Mr. Helton

testified that Mr. Slattery’s estimates of pre-compact pumping

In addition to missing electric power records, there

was very little information available on pumping by

wells powered by non-electric sources, except for the

USGS investigation covering the years 1964-68. Report at

211. There is simply no information on what data the

USGS collected, if any, to estimate pumping by non-

electric powered wells before 1964, and Mr. Hurr had

died and was unavailable to explain the assumptions he

had made to make his estimates.

The Master also states that it is highly speculative to

assume that Colorado would have been able to collect

additional data if Kansas had complained sooner. Report

at 158. This finding is totally unsupported by the record.

First, the USGS investigation during the period 1963-68

was a cooperative investigation with Colorado agencies,

Jt. Exh. 66 at 1, which was undertaken without any com-

plaint by Kansas. Had Kansas complained in 1956, that

cooperative investigation could have begun earlier. Sec-

ond, very complete power records were available from

1975 forward, Colo. Exh. 660 at 3-4; RT Vols. 22 at 78-79;

126 at 10-11 (Book), which demonstrates, as one would

were reasonable, RT Vol. 115 at 58, he also testified that Kansas’

estimates of pre-compact pumping were “grossly unfair” to

Colorado and not at all representative of what a reasonable leve!

of use would be from those wells. /d. The differences between

the Colorado and the Kansas pre-compact estimates were

almost entirely due to lack of data; and, the Master rejected

Colorado’s estimates because of lack of data. Thus, while the

Colorado experts may not have made a serious complaint about

the lack of pre-1965 data per se, they made it clear that the

estimates before 1960 were more uncertain and that the uncer-

tainty was due to lack of data.

expect, that power records were much more complete the

closer one got to the date of Kansas’ complaint.*?

In addition, had Kansas complained in 1956, farmers

or other knowledgeable persons could have been called

to testify about non-electric power usage and pumping in

the 1940s and 1950s, as Mr. Miles and Mr. Longenbaugh

were able to do for the 1970s. Report at 213-14. Likewise,

information on conversion from centrifugal pumps and

the efficiencies of centrifugal pumps used in the 1940s

and 1950s could have been obtained.

Further, there was missing data to estimate pumping

after 1968, when the USGS study ended. Specifically,

there was only limited data on power conversion coeffi-

cients and well-by-well pumping. Report at 215-18; RT

Vol. 22 at 50-51 (Book). Had Kansas complained at that

time, Colorado could have continued the reading of

power meters to estimate pumping and made additional]

measurements of power coefficients.

The Master rejects this argument and states that he

doubts that complaints by Kansas realistically would

have made any difference in Colorado’s data collection

system. Report at 148. He based this conclusion on the

fact that “nothing substantial was done” in response to

recommendations in the Wheeler Report in 1968 to obtain

accurate and continuous discharge records of major tribu-

tary inflow and to install meters on wells. Id. This state-

ment is inaccurate and unfair. The Purgatoire River and

the Apishipa River have been gaged throughout the post-

42 Even these records for the most part are not well-by-well

power records. RT Vol. 22 at 50-51 (Book).

compact period. Colo. Exhs. 835 and 836. Streamflow

gages were established or reestablished on Fountain

Creek at Pueblo, the St. Charles River, the Huerfano

River, and Big Sandy Creek after 1968. Colo. Exh. 2, Table

2.2.1 at 2-19 (Fountain Creek at Pueblo, 1971-1985); at

2-20 (St. Charles near Vineland, CO, 1968-1974; St.

Charles at Vineland, CO, 1978-1985); at 2-21 (Huerfano

River near Boone, 1979-85); at 2-25 (Big Sandy Creek near

Lamar, 1968-1982). These are the major tributaries below

Pueblo and streamflow gages were installed on these, as

well as other tributaries. /d.

Admittedly, the Colorado State Engineer did not

order well owners to install meters on wells, but Dr.

Danielson and Mr. Simpson explained why they felt that

ordering farmers to install meters in wells was not feas-

ible. Report at 113 note 43. While Colorado could have

continued the cooperative investigation with the USGS to

read power meters, that study was very expensive, RT

Vol. 129 at 28 (Major), and there were no complaints by

Kansas ta justify continuation of that program.

Moreover, missing evidence to estimate pumping

was not the only evidentiary prejudice suffered by Colo-

rado from Kansas’ delay. Important witnesses who could

have established Kansas’ knowledge of increased well

pumping and post-compact well development in Colo-

rado in 1956 had died, including William E. Leavitt,

Roland H. Tate, and Robert V. Smrha. Report at 158-59.43

The Master states that the testimony of these men would

+) Tate died in 1964. Leavitt died in 1967. Smrha died some-

time after he retired in 1972. Report at 159.

not have been useful because the records of the Compact

Administration are completely devoid of any references

to well pumping in Colorado during this time period. Id.

at 159. In fact, there was “considerable discussion con-

cerning well drilling and its effects on conditions” at the

annual meeting of the Compact Administration in

December, 1956. Thus, their testimony would have been

highly useful to establish their knowledge of post-com-

pact well pumping in Colorado and the reasons Kansas

did not make a complaint or request an investigation at

that time.

In addition, Colorado established that the streamflow

gage at Garden City had been converted to a gage to

record flood flows in 1970. Report at 300. The flow at

Garden City was needed to do an analysis of flows that

had passed Garden City unused. Id. at 296. It is unlikely

that Colorado would have agreed to the conversion of the

Garden City gage had Kansas given any indication that

Colorado might be sued for a Compact violation at that

time.*4 In addition, had Kansas complained in 1968, it is

unlikely that the Colorado State Engineer would have

continued to issue well permits after that date. See RT ol.

76 at 109-15 (Danielson).

44 The gaging station at Garden City was discontinued by

mutual agreement of the States. Twenty-Second Annual Report

of the Arkansas River Compact Administration at 7 (1970) (Jt.

Exh. 18).

b. Economic Prejudice

With regard to economic prejudice, the Master found

that Colorado had not been prejudiced by Kansas’ delay

because once farmers in Colorado, relying upon Colorado

law, had made investments to replace pumps and con-

struct wells, the passage of time would not create preju-

dice. Report at 157. On the contrary, he concluded that

delay by Colorado or Kansas in bringing about well

regulation permitted the benefits of those wells to be

increasingly enjoyed and such investments amortized. /d.

This analysis confuses benefits of wells to well owners

with prejudice to Colorado.*5 While well owners may

have enjoyed benefits from post-compact well pumping,

the Special Master recommends that Colorado should

now pay damages for depletions to usable Stateline flows

since 1950 when Kansas made no complaint about such

pumping for 29 years. To the extent well owners in Colo-

rado made substantial investments during that period

and damages increased’ while Kansas delayed in com-

plaining about post-compact well development, Colorado

was prejudiced by Kansas’ delay. See Colorado v. Kansas,

320 U.S. at 394; Continental Coatings Corp. v. Metco, Inc.,

464 F.2d 1375, 1378 (7th Cir. 1972).

Thus, Colorado demonstrated that important evi-

dence was missing, that important witnesses had died,

45 It also ignores the fact that, as Mr. Miles testified, farmers

made changes in their operations to incorporate the use of

wells, which would make it difficult to convert back to the use

of surface water only. RT Vo!. 66 at 44-46. See Report at 217

(noting Miles’ testimony that many systems changed over to

underground pipelines).

that there were actions Colorado could have taken to

obtain evidence had Kansas complained earlier, and that

Colorado had changed its position because Kansas had

not complained. Moreover, well owners in Colorado

made substantial investments to replace centrifugal

pumps, to construct wells, and to change their methods

of operation while Kansas unexcusably delayed in mak-

ing its claim. Report at 149, 217. This evidence was cer-

tainly sufficient to establish prejudice.

In summary, the evidence clearly and convincingly

shows that 1) Kansas delayed for a lengthy period of time

- at least 16 years, or 29 years if Colorado is correct — in

making its well claim; 2) there was no valid excuse for

Kansas’ delay; ana 3) Colorado was prejudiced by Kan-

sas’ unexcused delay. Thus, Colorado established the

basis for its defense of laches.

4. Laches Should Bar a Claim for Damages

until Kansas Made a Request for an Investi-

gation in 1985

Application of laches to Kansas’ well claim would

not affect the prospective enforceability of the Compact,

but Kansas’ unreasonable and unexcused delay should

bar a claim for damages prior to March 1985, when Kan-

sas asked the Compact Administration to conduct an

investigation. Aukerman, 960 F.2d at 1031; A.C. Aukerman

v. Miller Formless Co., 693 F.2d 687, 699 (7th Cir. 1982);

Univ. of Pittsburgh v. Champion Prod., Inc., 686 F.2d 1040,

1044 (3d.Cir.), cert. denied, 459 U.S. 1087 (1982). Moreover,

application of laches would also eliminate the difficult

problems, largely caused by Kansas’ delay, in trying to

reconstruct pumping back to 1950.

II. ARTICLE IV-D OF THE ARKANSAS RIVER COM-

PACT DOES NOT LIMIT PRE-COMPACT WELLS

IN COLORADO TO PUMPING 15,000 ACRE-FEET

PER YEAR AFTER THE COMPACT BECAME

EFFECTIVE

The most significant factual] issue in this case was the

amount pre-compact wells in Colorado were entitled to

pump after the Compact became effective. As the Special

Master states:

Both Kansas and Colorado acknowledge

that some wells were in existence during the

precompact years, and that pumping of ground-

water did occur. Both states also agree that a

certain amount of pumping should thus be

allowable under the compact. However, the

states are in major disagreement over the extent

of this allowance. In fact, in terms of potential

impact on Stateline flows, the amount of so-

called “precompact” pumping is the largest

quantitative issue in the case.

Report at 182.

Kansas estimated that ground water pumping in Col-

orado between Pueblo and the Stateline was 11,000 acre-

feet in 1948. Report at 182. Kansas contended that this

was the amount of pumping thus “grandfathered” under

the Compact and al] that pre-compact wells were allowed

to pump in post-compact years. Id.4

In contrast, Colorado assumed that wells with pre-

compact dates of appropriation were entitled to pump the

amounts they had pumped under Colorado law, which

varied from year-to-year, but averaged 49,275 acre-feet

during the period 1950-1985. Report at 183.

The Master rejected both Kansas and Colorado’s

assumptions about the amount that well owners with pre-

compact wells were entitled to pump after the Compact

became effective, and instead recommends that pre-com-

pact wells should be limited to pumping the highest

amount pumped during the years the Compact was nego-

tiated, which he found to be 15,000 acre-feet per year.

Report at 186-88, 200. One reason he rejected Colorado’s

theory of entitlement was that many well owners in Colo-

rado had replaced centrifugal pumps with more efficient

turbine pumps in the early 1950s, which allowed them to

pump more water than they had pumped before the

Compact became effective. Id. at 189. The Master con-

cluded that the increased pumping was “improved or

prolonged functioning of existing works” under Article

IV-D of the Compact and, therefore, a future beneficial

development subject to the limitations of Article IV-D of

** Kansas made no estimates of ground water pumping in

Colorado before 1948. RT Vol. 126 at 55-56 (Book). Moreover,

Kansas’ estimate for 1948 was based on incomplete power

records and assumed that pumping by non-electric wells was

the same percentage in 1948 as in 1964 when the USGS did an

extensive inventory of wells in Colorado. See infra notes 48 and

$2.

the Compact. Id. at 194. Colorado takes exception to this

ruling.

A. PRE-COMPACT WELLS ARE NOT LIMITED

TO PUMPING THE HIGHEST AMOUNT

PUMPED IN THE YEARS DURING WHICH

THE COMPACT WAS NEGOTIATED

In interpreting Article IV-D of the Compact, the Mas-

ter relied on what he believed the Compact negotiators

had intended and ignored the subsequent practice of the

parties to the Compact.” For at least 36 years after the

---

4” The Master generally relied for his interpretation of the

Compact on the Kansas historian, Dr. Douglas Littlefield, who

prepared a two-volume history of the Arkansas River Compact

and testified at length at trial. Report at 71-73. In his report, Dr.

Littlefield repeatedly asserted the thesis that the Compact was

intended to preserve the status quo in relation to existing diver-

sions in Kansas and Colorado. E.g., Kan. Exh. 129 ai 6-8, 263,

296-97, 349-50, 380, 387, 392, 440, 459-60. Colorado objected to

portions of Dr. Littlefield’s testimony and his report on the

grounds that they contained inadmissible legal conclusions

about the meaning of the Compact and the intent of the Com-

pact Commissioners, and the Master did grant Colorado's

motion to strike portions of the testimony and report. Report at

73; Order (Nov. 13, 1993). However, the Master generally

adopted Dr. Littlefield’s thesis as his own. Report at 73, 89-90.

Colorado has several objections to Dr. Littlefield and the

Master’s interpretation of the Compact. First, Dr. Littlefield

developed his thesis in large part on the basis of the “broader

historical context within which the need for a compact arose.”

Kan. Exh. 129 at 10-11. Dr. Littlefield’s approach reflects the

difference between methods used by historians and methods

used by Courts to interpret a compact. See Kan. Exh. 129 at

11-15. For example, during cross-examination it was brought

out that Dr. Littlefield had not relied on anything after the

Compact became effective, Kansas made no objection to

the replacement of centrifugal pumps with turbine

pumps or increased pumping by pre-compact wells

which resulted from improved pumps, drier climatic con-

ditions, or other factors. Not once before this litigation

did Kansas suggest that pumping by pre-compact wells

in Colorado was limited to the ammount pumped during

the pre-compact period. Nor did Kansas prevent replace-

ment of centrifugal pumps by turbine pumps or limit

pumping by pre-compact wells in Kansas to the amount

pumped during the pre-compact period. Jt. Exh. 105 at 40;

Report at 226. It is not proper to ignore the subsequent

Compact was signed, including General Kramer’s report to

Congress, the hearings held by Congress, or the reports by the

Commissioners. KT Vol. 9 at 114-15. Further, he had relied “to a

substantial degree” on unedited, uncertified transcripts of the

Compact negotiations that were discovered in General

Kramer's files rather than the official record of the meetings

which the Commissioners had prepared and approved. Id. at

115, 120-24, 126-30. See also Kan, Exh. 129 at 225, note 274. The

Master adopted Dr. Littlefield’s approach in interpreting the

Compact, Report at 71-90, relying heavily on “the rich history of

controversy over the river, and early efforts to apportion its

waters between the two states,” Report at 71, to derive certain

principles which he then used to imterpret the Compact. /d at

89-90. He also relied on the unedited, uncertified transcripts of

the Compact negotiations (Jt. Exh. 4) Id. at 92, 93, 96, 99, 100,

103. The result is that instead of determining the meaning of the

Compact from the li nguage of the Compact, the official record

prepared by the Commissioners, the report to Congress by Gen-

eral Kramer, the reports by Commissioners, and the subsequent

practice of the parties, Dr. Littlefield and the Master tried to

divine what they thought the Commissioners had intended

from the background leading to the adoption of the Compact.

practice of the parties in interpreting an interstate com-

pact. Se Restatement (Third) of the Foreign Relations

Law of the United States § 325(2) (1987) (subsequent

practice is relevant to the interpretation of international

agreements); Restatement (Second) of Contract § 202 and

comment g (1981) (“The parties to an agreement know

best what they meant, and their action under it is often

the strongest evidence of their meaning.”).

Furthermore, Article VI-A(2) of the Compact pro-

vides:

Except as otherwise provided, nothing in

this Compact shall be construed as supplanting

the administration by Colorado of the rights of

appropriators of waters of the Arkansas River in

said State as decreed to said appropriators by

the courts of Colorado, nor as interfering with

the distribution among said appropriators by

Colorado, nor as curtailing the diversion and

use for irrigation and other beneficial] purposes

in Colorado of the waters of the Arkansas River.

The Colorado Commissioners in their report on the

Compact stated that Article VI “fully recognizes Colo-

rado’s statutory system of water administration, partic-

ularly as to use for irrigation and other beneficial

purposes in Colorado.” Report and Submission by the

Commissioners for Colorado of the Arkansas River Com-

pact, reprinted in Senate Hearing, supra note 2, at 26 (Arcti-

cle VI) (Jt. Exh. 15); House Hearing, supra note 2, at 20

(Article VI) (Jt. Exh. 16). This report was submitted to

Congress for consideration in connection with approval

of the Compact, Senate Hearing, supra note 2, at 21-27 (Jt.

Exh. 15); House Hearing, supra note 2, at 15-21 (Jt. Exh. 16),

and the Kansas Commissioners did not disagree with the

interpretation of Article VI by the Colorado Commission-

ers. The Master states that Article VI-A(2) must be read in

conjunction with Article [V-D and “was not meant to

override the obligations of Colorado under Article 1V-D.”

Report at 193-94. However, nothing in Article IV-D states

that pre-compact wells in Colorado are limited to pump-

ing the amounts that were pumped during the pre-com-

pact period. This is a limitation which the Master has

read into Article IV-D based on his assumption about

what the Compact Commissioners intended, an assump-

tion which is not supported by the wording of Article IV-

I, the report of the Colorado Commissioners, or the

subsequent practice of the parties.

Moreover, the Master's interpretation of the Compact

is contrary to the provisions of the Compact when consid-

ered as a whole. Article V-H of the Compact provides that

“the ditch diversion rights” from the Arkansas River in

Colorado Water District 67 and in Kansas between the

Stateline and Garden City “shall not hereafter be

increased beyond the total present rights of said ditches”

without the Compact Administration making findings

that no material depletion of usable flows will result from

such increase. Arkansas River Compact, Art. V-H.

(emphasis added). The term “rights” is significant in this

context. The Compact Commissioners understoad that

the operation of John Martin Keservoir would change the

regime of the river, Jt. Exh. 5 at 2-3, and that diversions

by ditches in Water District 67 and in Kansas might

increase as the result of implementation of the Compact.

House Hearing, supra note 2, at 32 (Statement of George S.

Knapp) (Jt. Exh. 16). Increases in the amounts diverted by

these ditches were not prohibited by the Compact so long

as their ditch diversion rights were not increased without

a finding of no material depletion of usable flows. Thus,

it is consistent with Article V-H to permit amounts diver-

ted by pre-compact wells to increase so long as their

rights are not increased. And, in fact, that was how wells

in Colorado were administered without complaint by

Kansas for 36 years.

The Master rejected this argument because he con-

cluded, based on Article V-H of the Compact, that: “I

cannot believe that the compact was intended to limit

increased diversion rights, but to allow new rights to be

later established for wells that would change the river

allocation between the states.” Report at 194. The Mas-

ter’s response is wrong on two counts. First, rights for

pre-compact wells in Colorado may have been decreed

after the Compact became effective, but those rights were

established by appropriation prior to the date the Compact

became effective. Black v. Taylor, 128 Colo. 449, 264 P.2d

502, 506-07 (1953); see Colorado v. New Mexico, 459 US.

176, 179 n. 4 (1982) (describing thé prior appropriation

doctrine). Ditch diversion rights in Colorado are based on

rates of flow in cubic feet per second of time. Because

weather conditions vary substantially from year to year

in Colorado, diversions are not limited to a specific vol-

ume of water, but by the needs of the land for which the

right was appropriated. City of Colorado Springs v. Bender,

148 Colo. 458, 366 P.2d 552, 555 (1961); RT Vo! 84 at 21

(Helton). Therefore, as witnesses for both states testified,

the amount of water pumped by wells will vary in any

particular year depending on the crops grown, hydro-

logic conditions, economic factors, and, in the case of

wells used as a supplemental source of supply, the

amount of surface water available. RT Vol. 22 at 61, 81-82,

83-84 (Book); RT Vol. 130.at 42-46 (Simpson); RT Vols. 84

at 19-21; 134 at 78-82, 96, 99 (Helton).

The Compact Commissioners clearly understood that

ditch diversions in both states, measured in acre-feet,

vary from year to year. Jt. Exh. 5 at 2-3, 22. This was

permitted so long as the diversion rights of the ditches

were not increased. Thus, in the case of rights to divert

grcund water, it is consistent with Article V-H! to hold

that the Compact did nat prevent increased diversions by

wells as long as their rights were not increased. And, for

many years, the parties acted in accordance with this

understanding. The Colorado State Engineer did not limit

diversions by pre-compact wells to the volume of ground

water pumped during the period when the Compact was

negotiated, and Kansas never suggested that pumping by

pre-compact wells must be so limited.

The Master disagreed with Colorado about what the

Kansas Commissioners who negotiated the Compact

understood because he “{did]} not believe that any of the

commissioners, cither from Colorado or Kansas, had in

mind the development of the deep turbine pump or the

possibility of such a dramatic increase in pumping.”

Report at 194-95.

Colorado does not dispute that some portion of the

increase in pumping by pre-compact wells was due to the

replacement of centrifugal pumps with more efficient

turbine pumps. However, this occurred in both states

without objection. Jt. Exh. 105 at 40; Kan. Exhs. 447 at 112

(al) but four of the irrigation wells in Finney and Gray

Counties, Kansas, were equipped with centrifugal

pumps); 448 at 92-93 (most irrigation wells in the

Arkansas Valley in Hamilton and Kearny Counties, Kan-

sas, were equipped with centrifugal pumps). Given the

lack of data to estimate pumping in the 1940s, Report at

199, and the fact that Kansas did not complain at the time

about such a conversion or increases in pumping, Colo-

rado believes that owners of pre-compact wells should be

permitted to pump in accordance with Colorado law, in

amounts which vary from year to year depending on

hydrologic conditions and other factors, as they ad for

the 36 years before Kansas filed this lawsuit. Moreover,

not only is this interpretation of the Compact supported

by the long-standing conduct of the parties, it is neces-

sary to avoid prejudice to Colorado from Kansas’ delay in

complaining about well pumping. As will be clear from

the discussion of the evidence that follows, Kansas’ delay

has made it virtually impossible to reconstruct the histor-

ical record of pre-compact well pumping.

But, even if the increased pumping due to turbine

pumps is “improved or prolonged functioning of existing

works” for the purposes of Article IV-D of the Compact,

Colorado presented a reasonable method to factor out the

increased pumping due to turbine pumps based on the

average amounts pumped per well during the 1940s,

using estimates made by Colorado’s experts. Report at

195-96. The Master rejected Colorado's method on the

basis that Article IV-D did not permit any increased

pumping after the Compact became effective. Id. at

194-95. He also rejected the pumping estimates made by

Colorado’s experts and accepted the pumping estimates

made by the USGS as a basis to estimate the pre-compact

pumping allowance. Id. at 199-200. Colorado takes excep-

tion to this ruling.

B. THE USGS ESTIMATES FOR TH: 1940S ARE

NOT SUPPORTED BY POWER DATA AND

THE MASTER’S REASONS FOR ACCEPTING

THOSE ESTIMATES ARE NOT REASONABLE

Colorado made estimates of pumping during the

1940s, which averaged 25,228 acre-feet per year. Report at

185. In 1940, a very dry year, Colorado estimated that

ground water pumping in Colorado was 36,837 acre-feet.

Colo. Exh. 165%, Table A.i. In 1948, a very wet year,

Colorado estimated that ground water pumping was

24,475 acre-feet. [d.4

The Master rejected the estimates by Colorado's

experts for the 1940s on the grounds that “|pjrior to the

trial of this case, pumping for 1940-49 had been estimated

in five separate hydrologic reports,” and “(none of these

reports, however, estimated amounts that approached the

yearly average of 25,228 acre-feet submitted by Colorado

for use in the trial.” Report at 185. All five reports use

48 Both Kansas and Colorado started with the same power

records to estimate pumping in Colorado in 1948. There were

several reasons for the difference in the Kansas and Colorado

pumping estimates for 1948 (11,000 acre-feet vs. 24,475 acre-

feet), but the two main reasons are that Colorado estimated

missing electrical power records in the Las Animas service area

and assumed a higher percentage of pumping by non-electric

wells than did Kansas. RT Vo}. 133 at 39 (Helton). As Mr. Helton

testified, the failure to estimate pumping in the Las Animas

service area was not reasonable because there were a Significant

number of pre-compact wells in that area. Id. at 41.

estimates made by the USGS.4% The USGS estimates were

made by Mr. R. Theodore Hurr and have been used in

various reports, but the data used by Mr. Hurr to make

the estimates for the 1940s were not available, no one was

sure how the estimates were reached, and Mr. Hurr died

before he could be questioned about the basis on which

he made his estimates. Report at 187; RT Vol. 130 at 47-49,

51-52 (Simpson). Although testimony exposed inconsis-

tencies between the USGS pumping estimates and power

records, Report at 187; RT Vol. 130 at 47-52 (Simpson), the

Master accepted the USGS estimates. We address the

Master’s reasons for accepting those estimates.

4% The estimates in the 1970 USGS report are simply shown

in the form of a bar chart. Jt. Exh. 66 at 8, Fig. 3. There are no

numerical values given in the report for the 1940-49 ground

water withdrawals and there is no explanation of how those

estimates were made. The 1985 USGS report and 1986 USDA

report simply republished the bar chart from the 1970 Report. Jt.

Exh. 129 at 10; Jt. Exh. 108 at 1-11. The 1968 Wheeler Report and

the 1975 report contain numerical estimates of pumping. Jt. Exh.

92 at 22; Jt. Exh. 94 at 22. The pumping estimates in the 1968

Wheeler Report were obtained from the USGS. Jt. Exh. 91 at 9

(Volume 1 of the Wheeler Report). The 1975 report states that

the data for 1940-62 is from the 1970 USGS report. Thus, al! five

reports use estimates by the USGS, and the estimates in four of

the five reports are identical. The fifth report, the Wheeler

Report, has slightly different estimates for some years between

1940 and 1965 (e.g¢., 2.300 acre-feet for 1940 vs. 2,500 acre-feet for

1940 in the 1975 report), but those estimates came from the

USGS, Jt. Exh. 91 at 9, and appear to be a preliminary version of

the estimates published in the 1970 USGS report.

1. Experts Relied on the 1970 USGS Report

The Master states that experts for both states relied

heavily on the 1970 USGS report in which the 15,000 acre-

foot estimates appear. Report at 186. This misconstrues

the reliance by the experts on the 1970 USGS report.

Experts for both states relied on the power coeffi-

cients measured by the USGS during the 1964-68 field

investigation and the information on the type of power

used for pumping contained in the 1970 USGS report.

However, experts for neither state relied on the USGS

pumping estimates for the period 1940-63 in the report.

RT Vo}. 69 at 95-97 (Slattery) (USGS procedure to estimate

pumpage prior to 1964 is not documented and is not

reasonable); RT Vol. 126 at 30 (Book) (did not form an

opinion about the USGS estimates; completed his analysis

based on power sold by the power companies for irriga-

tion use). Thus, the fact that experts for both states relied

on other portions of the 1970 USGS report is not a reason-

able basis to rely on the pumping estimates for the 1940s

in that report.

2. Major’s Defense of the USGS Estimates

The Master states that Colorado called one of the

authors of the 1970 USCS Report as a witness, and he

“staunchly defended the accuracy of the USGS’s pumping

estimates.” Report at 186-87. That is not a reasonable

basis to accept the USGS pumping estimates. The witness,

Mr. Thomas J. Major, was responsible for the inventory of

large-capacity wells from Pueblo to Swink™ and the col-

lection of data for the report. RT Vel. 129 at 15-14, 17. He

was not qualified as an expert on pumping estimates (or

otherwise) and had no involvement in making the pump-

ing, estimates in the USGS report, other than to provide

information to Mr. Hurr. Id. at 19, 28, 56. He did not know

how the ground water withdrawals plotted in Figure 3 of

the 1970 USGS report were determined. Id. at 28. Mr.

Major was asked specifically if he had determined the

amounts of pumping:

THE SPECIAL MASTER: DID YOU

DETERMINE ANY AMOUNTS OF PUMPING?

THE WITNESS: NO, SIR.

BY MR. DRAPER:

Q: AND YOU DON’T KNOW HOW

THOSE DETERMINATIONS WERE MADE?

A: THAT WAS TED HURR’S FUNCTION.

MY RESPONSIBILITY WAS PRIMARILY TO

GET THE INFORMATION TO HIM.

RT Vol. F29 at 56; see also RT Vol. 129 at 61-62, 63.

During cross-examination, Mr. Major was asked if he

had any reason to doubt the pumping estimates in the

1970 USGS report. RT Vol. 129 at 61. Mr. Major responded

that he did not develop them but had “no reason to

believe that anyone would do anything that wouldn't be

accurate.” Id. at 62. The basis, ard the only basis, for Mr.

Major's defense of the accuracy of the USGS pumping

“ Swink, Colorado, is just west of La Junta, Colorado. RT

Vol 129 at 13. Thus, Mr. Major was responsible for the inventory

of wells in the upstream reach of the study. Id. at 13, 15.

estimates was that those figures were subject to the nor-

mal USGS peer review and checking and he had no

reason to doubt Mr. Hurr’s work. /d. That is not a reason-

able basis to accept Mr. Major's opinion. See Fed.R.Evid.

703. Mr. Major was not qualified as.an expert in making

pumping estimates, Fed.R.Evid. 702, and wasn’t qualified

to give an opinion that experts in making pumping esti-

mates would reasonably rely upon pumping estimates

made by Mr. Hurr. Moreover, Mr. Major did not know

how those estimates had been made and did not know

what data had been used by Mr. Hurr. RT Vol. 129 at 63.

Thus, it is not reasonable to rely on his opinion as a basis

to accept the USGS pumping estimates.

3. Fellhauer

The Master states that the Colorado Supreme Court

in Felfhauer v. People, 167 Colo. 320, 447 P.2d 986, 991

(1968), stated that in 1940 only 2,000 acre-feet were being

pumped from wells in the Arkansas Valley in contrast to

the estimate of 36,837 acre-feet calculated by Colorado for

this trial. Report at 187. The Colorado Supreme Court

apparently relied on the USGS estimate for its statement.

However, the amount of pumping in 1940 was not a fact

which was necessary to the Court's determination in that

case, and uncritical use of that estimate does not establish

that it is reasonable.

4. 1975 Report

The Master states that Colorado also used the USGS

data in its 1975 report prepared for the proceeding before

the water court and introduced into evidence. Report at

187. The Colorado State Engineer's Office did use the

USGS pumping estimates for 1940-62 in its 1975 report, Jt.

Exh. 94 at 22, Table 7, but also included electric power

data in the report. Id. Dr. Danielson, who supervised the

collection of data for the 1975 report, RE Vol. 76 at 87-88,

testifiect that the USGS pumping estimates for the 1940s

appeared to be suspicious based on the electric power

data in the 1975 report, RT Vol. 77 at 9-10, and did not

appear to be reasonable. RT Vol. 78 at 83-84, 118. Dr.

Danielson also testified that the State Engineer’s Office

was under considerable time pressure to complete the

1975 Report for use at trial and generally usedt whatever

data was available without further analysis. RT Vol. 76 at

94-96. Thus, the mere fact that the USGS pumping esti-

mates were used in the 1975 report does not establish that

those estimates are reasonable. Sce RT Vol. 78 at 86, 118.

5. Book’s Testimony

The Master states that from the Kansas viewpoint, its

expert testified that while he thought the 15,000 acre-foot

figure estimated by the USGS for 1948 was high, it was

nonetheless reasonable. Report at 187.°' However, the

Kansas expert, Mr. Book, assumed that the percentage

pumped by non-electric powered wells in Colorado did

not increase prior to 1964, even though 1940 census data

(Colo. Exh. 115 at 209) and a Bureau of Reclamation study

in 1943 and 1944 on a portion of the Bessemer Terrace

‘! In contrast, Colorado estimated that pumping in 1948

was 24,475 acre-feet. Colo. Exh. 165°, Table A.1.

(Colo. Exh. 114) showed a much higher percentage of

wells powered by non-electric sources. RT Vol. 126 at

43-44, 51-55 (Book); Colo. Exh. 165*, Table 7.1.5? He also

made no attempt to estimate missing power records in

the Las Animas, Lamar, and Holly service areas when he

estimated pumping for 1948. RT Vol. 24 at 7; see RT Vol. 69

at 110-12 (Slattery) (Kansas did not estimate missing data

for the Las Animas service area which is not reasonable.);

Kan. Exh. 689 at 4 (memo prepared by Mr. Book stating

that Colorado’s estimates for the [amar and [Las Animas

ower Company service areas were an additional signifi-

cant reason for differences in the estimates in early

years). Thus, the difference between the Kansas and Colo-

rado estimates of pumping in 1948 (11,000 acre-feet vs

24,475 acre-fect) results primarily from differences in

assumptions about missing data, RT Vol. 126 at 54-57

(Book), data which could have been obtained or esti-

mated with more accuracy if Kansas had complained

earlier. Furthermore, Mr. Book did not make estimates for

52 For example, in the CENTEL (Southeast Colorado Power

Company) service area and the western portion of the SECPA

service area, Mr. Book calculated non-electric pumping as three

percent of the total pumping, limited to a total of 2,200 acre-feet

based on the maximum non-ciectric pumping estimated by the

USGS uuring the 1964-68 study. RT Vol. 22 at 75 (Book). Mr.

Book admitted that he had no information on non-electric

pumping in those areas prior to 1964. RT Vol 23 at 115. Census

data in 1946 reported 344 wells in the Arkansas River Valley, of

which only 100 were electric wells. Colo. Exh. 165%, Table 7.1.

The inventory of wells by the Bureau of Reclamation in 1943 and

1944 on the portion of the Bessemer Terrace, which was in the

Southeast Colorado Power Company service area, indicated

that 44 wells were powered by gas and 87 were powered by

electric pumps. fd

years prior to 1948 and did not rely on the USGS esti-

mates in making the Kansas estimates. RT Vol. 126 at 30.

6. Basis for the Colorado Estimates

The Master states that even though cross-examina-

tion of Mr. Book did expose some inconsistencies between

the USGS pumping estimates and the power data in Table

7 of the report prepared by the Colorado State Engincer’s

Office, Report at 187, “the evidence is without dispute

that the published power records for this early period

were incomplete, and it may well be that it is the power

data on Table 7 not the pumping estimates that are inac-

curate.” Id. at 188.

First, there is no way to know if the USGS pumping

estimates are accurate because there is no data to support

those estimates and the person who made them is dead.

Second, no one knew exactly where the power data in

Table 7 came from, Report at 187, RT Vol. 126 at 58; but

the power data used by Colorado’s experts for the period

1940-49 was obtained from Colorado State University

(CSU), which had collected the data from the power

companies. RT Vol. 69 at 102; Colo. Exh. 88.b.5* Cross-

‘3 From 1957 to 1974, CSU collected data from utilities

throughout the State of Colorado on power sold for irrigation

use. RT Vol. 69 at 99-102 (Slattery). It collected some data in the

Arkansas River Valley which goes back as far as 1932. Colorado

used the data collected by CSU to make pumping estimates for

the years 1940-74. when available, supplemented by records of

the rublic (Mihties Commission, when those were available.

Colo. Exh. 165°, Table 2.2 (summary of process used to estimate

missing power records for basin). Kansas used virtually identi-

cal power data for the years 1948-59 based on a tabulation of

examination of Mr. Book also showed ‘hat the USGS

estimates tor the 1940s were inconsistent with the power

data collected by CSU. RT Vol. 126 at 64-66. Mr. Hal D.

Simpson, the Colorado State Engineer, testified that the

USGS estimates for the 1940s were not consistent with the,

power data obtained by CSU and were not consistent

with studies by the Bureau of Reclamation in 1943 and

i944 because they do not reflect any variation due to wet

and dry years. RT Vol. 130 at 47-52 (Simpson). Moreover,

there was testimony that the 1940s, with the exception of

1940, in general were a wet period and that surface

diversions in Colorado were much above average which

would have resulted in below average ground water use.

RT Vol. 82 at 133 (Helton).

7. Virtually Nothing Is Known about the

Power Figures, but the Pumpage Estimates

Have Been Accepted

The Master states that virtually nothing is known

about the power figures on Table 7 of Jt. Exh. 94, but the

USGS pumping estimates have been accepted, published,

and used by the State of Colorado, the courts, the US.

Department of Agriculture, and the USGS as late as 1985.

Report at 188. First of all, Colorado’s experts used power

data collected by CSU from the utilities, not the power

figures on Table 7 of Jt. Exh. 94. Second, the USGS pump-

ing estimates may have been accepted, published, and

used by others, including the Colorado State Engineer's

power company records prepared by the USGS, except for years

when it used tedger sheets to estimate power sold in the South-

east Colorado Power Association service area. Report at 207

office, but those estimates are not supported by power

data, no one knew how they were made, they are not

reasonavle, and they were not used by experts for either

state to estimate pumping for the period 1950-63.4

8. Lack of Discussion of Pumping During the

Compact Negotiations

In addition to the foregoing reasons for adopting the

15,000 acre-foot figure, the Master states that “[c]urrent

well pumping in Colorado appears simply not to have

been a matter of concern to the compact commissioners.”

Report at 101; see also Report at 195 (“Pumping at the time

was so insignificant that it did not even enter the discus-

sions.”). He states: “Had pumping been of any apprecia-

ble magnitude, | cannot believe fhat such use of water

would not have surfaced in the engineering committee

report and the compact negotiations.” Id. at 101.

‘4 The Master alsg states that, moreover, there was persua-

sive testimony vy one of the authors of the 1970 USGS report as

to the accuracy of that USGS publication. Report at 188. As

pointed out, Mr. Major was not an expert in making pumping

estimates, did not determine the pumping estimates in the

USGS report, and did not know how they were made. Given

those facts, his testimony 1s hardly persuasive. Likewise, the

fact that the USGS estimates were made much closer to the time

period involved and without the pressure of trial advocacy,

Report at 200, does not suggest that the USGS estimates are

likely to be more accurate than Colorado’s estimates when there

is no evidence that the USGS collected any power records earlier

than 1948 or even used power records to make the estimates for

the 1940s. RT Vol. 130 at 49, 51-52 (Simpson).

First; the Compact Commissioners clearly knew that

there was well pumping in both states. E.g., Kan. Exh.

205A at 2; Colo. Exh. 623 at 29-30; Colorado v. Kansas, 320

U.S. at 399 (describing testimony that farmers in Kansas

who could be served by existing ditches had elected to

install pumping systems because of lower costs). More-

over, reports published in 1943 and 1944 in Kansas esti-

mated that ground water -withdrawals for irrigation in

the Arkansas River Valley in Hamilton, Kearny, and Fin-

ney Counties were approximately 50,100 acre-feet in 1939.

Kan. Exh. 448 at 97-98 (23,000 acre-feet pumped in Ham-

ilton and Kearny Counties); Kan. Exh. 447 at 118 (27,100

acre-feet pumped in the Arkansas River Valley in Finney

County). Thus, the fact that pumping in Colorado was

not discussed during the Compact negotiations does not

suggest that pumping was insignificant or that Colo-

rado’s estimates are unreasonable.

Second, the engineering committee report specifically

noted that the diversion records did not include amounts

pumped by wells. /d. at 3 (“Irrigation supplies derived

from pumps in both states are not included in the tabu-

lated diversicns.”). The engineering committee never

completed its studies. Colo. Exh. 57; RT Vol. 13 at 5-10

(Littlefield). Thus, the fact that the engineering committee

report does not contain estimates of pumping and the

absence of discussion of pumping during the Compact

negotiations does not suggest that Colorado’s estimates

are unreasonable. If anythin

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