Exception — Kansas v. Colorado

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No. 105, ORIGINAL

In The

Supreme Court of the Anited States

STATE OF KANSAS,

Plaintiff.

STATE OF COLORADO,

Defendant.

and

UNITED STATES OF AMERICA,

Defendant-literveror:

On Exceptions To The Fifth And

Final Report Of The Special Master

KANSAS’ EXCEPTION AND BRIEF

STEPHEN N. SIX

Attorney General of Kansas

MICHAEL C, LEITCH

Deputy Attorney General

JOHN M. CASSIDY

Assistant Attorney General

LELAND FB. RoLrs

Special Assistant Attorney Gencral

JOHN B. DRAPER

Conmpse! up it Lol f

Special Assistant Attorney General

SHARON T. SHAHFEN

MONTGOMERY & ANDREWS, PLA.

Post Office Box 2307

Santa Pe, New Mexico 87504-2307

(505) 988-3873

April 2008

Kik LAW IDGLPR PRENET Avie hd COS ohne

ORCALLCOULARCT 02 54. 2851

KANSAS’ EXCEPTION

The State of Kansas excepts to the ruling of the

Special Master that, in the exercise of the Court's

original jurisdiction, the Court is bound by the Con-

gressional limit on the federal district courts in

awarding costs for expert witnesses.

Respectfully submitted,

STEPHEN N. Srx

Attorney General of Kansas

MicHAkL C. Leitcu

Deputy Attorney General

JouNn M. Cassipy

Assistant Attorney Gencral

LELAND E. RoLFs

Special Assistant Attorney General

JOHN B. DRAPER

Counsel of Record

Special Assistant Attorney General

SHARON T. SHATIEEN

MONTGOMERY & ANDREWS, P.A.

Post Office Box 2307

Santa Fe, New Mexico 87504-2307

(505) 982-3873

No. 105, ORIGINAL

In The

Supreme Court of the United States

STATE OF KANSAS,

Plaintiff,

STATE OF COLORADO,

D) Onan 4

ane

UNITED STATES OF AMERICA,

Defen da rie -]9 Lervenor.

On Exceptions To The Fifth And

Final Report Of The Special Master

BRIEF IN SUPPORT OF KANSAS’ EXCEPTION

QUESTION PRESENTED

In the exercise of this Court’s original jurisdic-

tion, is the Court bound by the Congressional limit on

the federal district courts in awarding costs for expert

witnesses?

TABLE OF CONTENTS

Page

BI cocccnenrnestabnnceiensucmibilaniasuidaditinemstamebinns 1

By II ciclainitncietienerindinmisctnntnecanencnideencs 1

B. Proceedings Prior to This Case............. 1

C. Proceedings in This Case ..................06- 4

D. The Fifth and Final Report................... 7

E. The Special Master’s Recommenda-

PT Ics iicinstisnidnrclocinnsiinsscniaesensneiins 7

F. The States’ Costs Settlement. Agree-

GOED cen cscsstcnsvccnescccccessntcctesonsoessinnsiceieonnss

IT. Summary of Argument ..................:0cceeeee eee

Se. MIN da islencedicaecsisdssteeeeieneninisinthicchspdndiisieaiianconesibn ll

A. Congress Has Not Sought to Limit the

Award of Costs in Original Cases.......... 14

1. This Court Has Recognized That

Congress Has Not Seught to Regu-

late Proceedings in the Court’s

Original Jurisdiction ...................6006 14

2. Normal Statutory Interpretation

Confirms That Congress Has Not

Sought to Regulate Proceedings in

the Court’s Original Jurisdiction....... 19

B. This Court Has Final Authority Over

the Award of Costs in Original Cases ...... 30

C. Reasonable Expert Costs Should Be

Awarded in This Case .................:::000000 3h

TERE eT TE ee 3Y

iii

TABLE OF CONTENTS -— Continued

Page

Appendix |: Constitutional and _ Statutory

Provisions Involved .................... App. 1

Appendix 2: The Special Master’s Additional

Order Regarding An Award of

CANO. niccmchecsiistiivninieenmudeniibial App. 8

Appendix 3: Costs Settlement Agreement...... App. 16

TABLE OF AUTHORITIES

Page

CASES

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,

ee RO sec encocessscsnsccesesvonccesee 20, 21, 22, 26

Arlington Cent. Seh. Dist. Bd. of Educ. v.

Murphy, 548 U.S. 291 (2006).............ccsccccsssrsssssscees 13

Colorado v. Kansas, 320 U.S. 383 (1948)......00000....0.....2

Crawford Filling Co. v. J.T. Gibbons. Inc., 482

SE eee passim

Florida v. Georgia, 17 How. (58 U.S.) 478

a cE EE aa 14, 15, 32, 33, 37

Gravson v. Virginia, 3 Dall. (3 U.S.) 320 (1799)........ 33

Immigration & Naturalization Serv. v. Na-

tional Ctr. for Tramigrants’ Rights, Ine., 502

a ccesebiineononen 22

Aansas v. Colorado, No. 10, Orig., Oct. Term 1901:

NN, MD iss cvccsncsacecccscescovesesvoses iidmtadamancibaciia 1

a ik ca sasuadanecsanssasessoncncssessoes 2

Kansas v. Colorado, No. 105, Orig.:

a ss cansencesepnscnnons 4

nc aincscincessebeseuticdsrsesonntcoscecs 4,5

TE oe

Tr. of Oral Arg. (Mar. 21, 19994) .....................00. aia 3

Lopez v. Gonzales, 49 U.S. __, 127 S.Ct. 625

Tet iidiceleienidiladesiutissnctnbediicesdebeessecsecessecsceeee 25

Marbury v. Madison, 1 Cranch (5 U.S.) 137

ee cabeoadenses 30, 32, 33, 34

TABLE OF AUTHORITIES — Continued

Page

Marviand v. West Virginia, 217 U.S. 577 (1910)....17, 18

Missouri v. [iinois, 200 U.S. 496 (1906)...............0.... 17

Nebraska. v. lowa, 143 U.S. 359 (1892)... ee. 17

New Jersey v. Delaware, 552 US. __, No. 134,

Orig., slip op. (March 31, 2008) ..................28, 24, 25

New -Jersey v. New York, 283 U.S. 336 (193 1)......00..... 2

New York v. New Jersey, 256 U.S. 296 (1921).....0..... 17

North Dakota v. Minnesota, 263 U.S. 583 (1924) .... 16, 17

Pierce v. United States, 255 U.S. 398 (1921)... 34

South Dakote v. North Carolina, 192 U.S. 286

Texas v. New Mexico, 482 U.S. 124 (1987)........... 34, 35

lnited States v. Menasclhe, 348 U.S. 528 (1985) ....... 23

United States v. Stewart, 311 U.S. 60 (1940)......0...... 29

Washington Marketi Co. v. Hoffman, 101 US.

|, Nee ane ee ey SEER PET. ENTE. 23

West Virginio Oni. Hosps.. Ine. ve. Casey, 499

OF As OD vsnscnnensenscemmienstinnssinenuntsansusdicémisienininimbinh 13

Wror ing vt. Colorado, 259 U.S. 496 (1922)............0... 17

CONSTITUTION, STATUTES AND RULES

U.S. Constitution:

a 3

"os SS Ren ne omen MEME Sm mr RSA ocx, 19, 29

‘4

is HEEL TT lhasscdneussions poiencunnindtndnineisuireldennian 4, 29, 30, 32

TABLE OF AUTHORITIES — Continued

Page

Se ss tlcliesntsisiomadannnientel 4

Ret of Bawt. Bt, UFGS, 1 Beal. FG ......00ccccccccccsesccccseesvess 19

Att of Gant. FD, TTS, 1 Bat. BB ...........ccccsssceseccessseess 22

Act of Feb. 26, 1853, 10 Stat. 161 .........0............passim

Act of Jan. 20, 1944, 58 Stat. 5 ..................... cc eee eee 24

Arkansas River Compact, 63 Stat. 145

UTE aiikaiinscitiicesssiidinleiibinesietpiciaandntebaiiasinaieb 3, 4, 11, 18, 38

SET iicaci add svitvadicchstiuedpesaaedaniinnchaanaleabtaiiarmaniveiimamtines 3

Court Interpreters Act, 92 Stat. 2040 (1978) ............ 24

Judicial Improvements Act of 1990, Pub. L.

I a 12

SE ITT iiss cinsnenticrinnciesnsiniieniciincisouiniddesaindebasaaniaaeiiel 24

I TI ics cassb caraniicadnsdc ania ceded ieadniunacedeate 23, 24

STII, TIEIIIIEG sia cniintesn tiiineeneiuinpidanaveaneadauasianae 24

STITT TITIES unsccanmecstassedduutitnadadddaninienaameniiiabaiaa 24

I eee eee aie 24

IN TIEN ss iit cuneate csaccetonenebiatiahaammemadiaauaaeel 24

8 e ___ REECE mney IIeET UO ere PF 24

IU eae 24

I he lal neanlae ell 4

IG AE SII sencinciuiscédibenauhtiesiucdarncncoabenmaastaaeds passtt:

Is A I cs ceccciipeaicidetcenitathinmenaiinis 13, 26, 27, 28, 29

Be ee Oe IE eitinincsnniensitasavnsenctncenepespntnimneimananaail 27

Vil

TABLE OF AUTHORITIES — Continued

Page

IN Tt TIED ss setts od sscenhieernicganierpiniegdanniedinninclnehneiiaiibiante 27

IN IIE iasaiscsscisin sentteemesistnadalientnedocndmnnendeadmibaial 27

Se cssiadiedasiadiinenl passim

SL ESE Ee ene aN aE mer ec 20

a IIE a crcieneadethaateniinecomssceietaerionil 11, 12

ae en ED UF eit iicehchiieidanisiemnceneinsienieihcenscicsigibpaiaciopsipeiaeliishubias 13

CONGRESSIONAL MATERIALS

H.R. Rep. No. 80-308 (1947).............0... eee 22, 28

SPECIAL MASTER REPORTS

First Report of Special Master, Aansas v.

Colorado, No. 105, Orig. (1994)....................06 2,3,6

Second Report of Special Master, Auisus v.

Colorado, No. 105, Orig. (1997) ...............secccccscssessees 6

Third Report of Special Master, Aursus vr.

Colorado, No. 105, Orig. (2000)........... eee 6, 18

Fourth Report of Special Master, AKunsus v.

Colorado, No. 105, Orig. (2003)......................4, 6, 38

Fifih and Final Report of Special Master,

Kansas cv. Colorado, No. 105, Orig. (2008 ) eee JJOISSIY:

Vill

TABLE OF AUTHORITIES — Continued

Page

TREATISES

17 Charles Alan Wright et al., Federal Practice

and Procedure (2007) ............cc.cccccecesccecceeceeeeeees 15, 34

22 James Wm. Moore, Moore’s Federal Practice

RRR Ere iy rar ROC Rene OPS Rn eRe RRR ee 32

Wm. A. Sabin, Gregg Reference Manual (1996)........24

APPENDICES TO THIS BRIEF

I. STATEMENT

A. Introduction

As this interstate water compact enforcement

proceeding in the Court’s original jurisdiction ap-

proaches completion, the Special Master has ruled

that the award of expert witness costs is controlled by

the same statutory limit that applics to the federal

district courts. The effect. of the Special Master’s

ruling is to limit the award for Kansas’ expert witness

costs to approximately 2% of the proposed expert fees

and expenses. See Additional Order Regarding an

Award of Costs, reprinted as Appendix 2 to this Brief.

Kansas’ Exception is based on its understanding that

Congress has not sought to subject interstate proceed-

ings in the Court’s original jurisdiction to the same

costs limit as the federal district courts. The lack of a

Congressional limit is in keeping with the constitu-

tional nature of the Court’s original jurisdiction, over

which the Court must be able to exercise ultimate

authority with respect to procedure, including the

award of costs.

B. Proceedings Prior to This Case

This case is the latest in a long line of cases in

this Court’s original jurisdiction between the States of

Kansas and Colorado concerning the Arkansas River.

The first was Auraus vr. Colorado, No. 10, Orig., Oct.

Term 1901, 185 U.S. 125 (1902), which was author-

ized by the Kansas legislature and filed in this Court

in 1901. That case became the first in which the

Court declared its power to resolve disputes between

States over interstate rivers pursuant to what has

become known as the Doctrine of Equitable Appor-

tionment. See, e.g., New Jersey v. New York, 283 U.S.

336, 343 (1931) (“The effort always is to secure an

equitable apportionment without quibbling over

formulas”) (Holmes, J.).

Although the Court declared its power to appor-

tion the Arkansas River in the 1902 decision, ul*-

mately, the Court denied relief. Aursas v. Cr orado,

206 U.S. 46 (1907). Suits by individual Kansas water

users against individual Colorado water users in the

federal district courts ensued. Colorado filed an

original jurisdiction action in 1928 to enjoin the

individual water user suits. Kansas counterclaimed

fur an equitable apportionment of the river. During

the pendency of the suit, in 1936, Congress author-

ized John Martin Reservoir, and construction by the

U.S. Army Corps of Engineers began in 1939. 1 First

Report of the Special Master 45, Aansas v. Colorado,

No. 105, Orig. (1994) |hereinafter First Rep., Second

Rep., etc.]. In 1943, the Court enjoined the individual

water user suits as recommended by the Special

Master, but rejected the Special Master’s recommen-

dation for an cquitable apportionment of the river.

Colorado U, Kansas, 320 US. 353, 389-393 (1943).

With John Martin Reservoir’s potential to provide

storage for use by both States if they could agree on

how to share that storage, the States began negolia-

tion of an interstate compact, an option that the

Court had carlicr recommended. /:/., at 392.

The Arkansas River Compact was approved by

the negotiators for the States of Kansas and Colorado

in 1948. The Compact. received the approval of the

States and the consent of Congress pursuant to

Article I, Section 10, Clause 3 of the Constitution

(“No State shall, without the Consent of Congress . ..

enter into any Agreement or Compact with another

State”), which Congressional consent was made

effective by President Truman’s approval on May 31,

1949. 63 Stat. 145-152. The Arkansas River Compact

allows postcompact development in Colorado provided

that such development not cause material depletions

of usable Stateline flows. Art. IV-D, 63 Stat. 147. The

Compact is reprinted at 2 Fifth and Final Report of

the Special Master, App. K (2008).

After the adoption of the Compact, new ground-

water well technology became available, and Colorado

allowed the drilling and use of more than two thou-

sand high-capacity irrigation wells along the Arkan-

sas River above the Kansas Stateline. 2 First Rep.

203-205. These new wells increased the total pump-

ing by about five million acre-feet’ over the period

1950-1985. See ic’, at 219. Kansas attempted to

ddress the postcompact well pumping issue in the

forum of the Arkansas River Compact Administration,

An acre-foot of water is the volume of a one-acre expanse

of water one foot deep It is 525,851 gallons The Supreme Court

courtroom, between the columns, filled to the ceiling. would hold

approximately 3! 5 acre-feet of water, Of Kunses 9. Coloma,

No. 105, Orig., Tr. of Oral Arg. 4-5 ‘Mar. 21, 1995).

but without success. Aurnsas ov. Colorado, 514 U.S.

673, 689 (1995) (“As late as 1985, Colorado officials

refused to permil an investigation by the Administra-

tion of well development in Colorado because they

claimed that the evidence produced by Kansas did not

‘suggest that well development in Colorado has had

an impact on usable Stateline flows’”). Kansas moved

to invoke the original jurisdiction of this Court

shortly thereafter.

C. Proceedings in This Case

Kansas filed this case to enforce the Arkansas

River Compact, 63 Stat. 145 (1949), pursuant to

Article ITT, Section 2, Clause 2 of the Constitution and

28 U.S.C. § 1251(a). Kansas claimed that Colorado,

the upstream State, had violated the Compact in

three respects. Colorado filed two counterclaims

against Kansas. The major claim in the lawsuit, that

Colorado had viviated the Compact by failing to

regulate postcompact irrigation wells along the

Arkansas River in Colorado, was approved by the

Court, and the other claims by both States were

rejected. Kansas v. Coloraco, 514 U.S. 673 (1995).

The case was remanded to the Special Master for

consideration of remedies, and after further trial, the

Court ruled on the Special Master’s recommendations

With respect to damages. Autscus v. Colorado, 533

U.S. 1 «2001). The Court ruled that the Eleventh

Amendment was not a bar to the award of damages

quantified in part by the injury to its water users and

that damages should include prejudgment interest,

but only from the year in which the case was filed.

id., at 9-16. The case was again remanded to the

Special Master. /c/., at 20. After further trial on issues

related to future compliance, the Court issued its

most recent opinion. Kansas v. Colorado, 543 U.S. 86

(2004). Total violations by Colorado of the Compact

due to postcompact pumping were quantified at

428,005 acre-feet for the period 1950-1996. Fourth

Rep. 4 (2003). In accordance with the Court’s rulings,

Colorado paid Kansas approximately $34.6 million in

damages. 1 Fifth Rep. 3.

The case was hotly contested from the beginning.

Approximately 270 days of trial during the period

1990 to 2003 were held before Special Master Arthur

L. Littleworth at. the Ninth Circuit Courthouse in

Pasadena, California. The evidence in the case con-

sisted almost exclusively of expert witness testimony

and exhibits. Extensive expert investigation, analysis

and testimony was required. The exhibits numbered

approximately 2,900, some of which were individually

voluminous. The major expert investigation and

analysis in the case was devoted to the creation and

refinement of the Hydrologic-Institutional Model (H-I

Model), which simulates all the important hydrologic

and institutional conditions and operations over the

150-mile reach of the Arkansas River between Pucblo,

Colorado and the Colorado-Kansas Stateline. The

Court has described the H-1 Model as follows:

“This highly compiex sect of computer

programs determines whether Colorado's

post-1949 wells deplete the river of usable

water that the Compact makes available for

Kansas. It does so by trying to account for

almost. every Arkansas-River-connected drop

of water that arrives in, stays in, or leaves

Colorado, whether by way of rain, snow, high

mountain streams, well pumping of under-

ground water, evaporation, canal seepage,

transmountain imports, reservoir storage, or

otherwise.” Kansas v. Colorado, 543 U.S. 86,

99 (2004).

The H-I Model was developed by the Kansas

experts. The Colorado model, known as the Colorado

Water Budget, was abandoned by Colorado in 1995.

Second Rep. 8 (1997). Thereafter, Colorado relied on

Kansas’ H-I Model. Aunsas v. Colorado, 543 US. 86,

99 (2004) (“Kansas and Colorado have agreed to use a

computer model, the H-I Model, to measure Colo-

rado’s future Compact compliance”); see, «.¢., Second

Rep. 38-45; Proposed Judgment and Decree, ¢ 1.B.1, 2

Fifth Rep. 3 (‘Compact compliance with respect. to

Groundwater Pumping shall be determined using the

results of the H-I Model”). One sign of the pervasive-

ness of the expert work on the H-I Model in this case

is shown by the fact that each of the Special Master’s

five reports in this case include descriptions of the

H-I Model and rulings by him with respect to the

Model. See, v.v.. 2 First Rep. 228-263; Second Rep. 7-

45: Third Rep., App. Exhs. 5, 6 (2000): Fourth Rep.

21-120 (2003): 3 Fifth Rep. possin.. The H-I Model

has been accepted by the Court as the basis for de-

termining future compliance with the Compact. See

Aaneaas tv. Colorado, 543 U.S. 86, 99 (2004).

D. The Fifth and Final Report

The Special Master’s Fifth and Final Report

consists of three volumes. Volume I contains the text

of the Report and 19 Appendix Exhibits. Volumes IT

and III contain the Proposed Judgment and Decree.

Volume II contains the text of the Decree and all

appendices except Appendix C. Volume II also con-

tains am extensive Appendix B related to the H-I

Model. See 2 Fifth Rep. B.1-B.65. Volume III, which

contains Appendix C, is a thick volume containing a

narrative description of the H-I Model and the Usable

Flow analysis, with a DVD containing the H-I Model

code and other clectronic files in the back pocket.

E. The Special Master’s Recommenda-

tions on Costs

The Special Master entered two orders regarding

costs. The first is entitled Order Regarding An Award

of Costs. 1 Fifth Rep., App. Exh. 6, at App. 86. In that

Order, the Special Master determined that Kansas

was Lhe “prevailing party” for purposes of determin-

ing costs. /d.. at App. 87-89. The Special Master

ordered Kansas to file a brief in response to Colo-

rado’s assertion that witness fees are limited to an

attendance fee of $40 per day. Jc’.. al App. 91. Kansas

filed its brief as directed by the Special Master,

together with its specific proposal on the costs that

should be awarded. The Kansas proposal for expert

fees and expenses iif/ion? the $40-per-day limit was

$9,214,727.81: the Kansas proposal for expert lees

and expenses wif/i the $40-per-day limit was

$162,927.94. Icl., App. Exh. 7, at App. 94. The Special

Master then entered the Additional Order Regarding

An Award of Costs. /¢., App. Exh. 7; App. 2 to this

Brief. The Special Master determined that “the $40

per day limit found in Section 1821(b) governs an

interstate proceeding in the original jurisdiction of

the United States Supreme Court.” App. 2, at App. 10.

It is that ruling to which Kansas excepts. In both

Orders, the Special Master gave his guidance to the

States on the reasonableness of the Kansas costs

proposal. In accordance with his ruling, however, the

Special Master did not consider what the appropriate

award of expert witness costs should be if the $40-

per-day limit were 70/ applicable. See 2 Fifth Rep., at

App. 89-91, 98-100.

F. The States’ Costs Settlement Agreement

The Special Master encouraged the States to

reach an agreement on costs subject to their ability to

challenge any of his rulings before the Court. App. 2,

at App. 15 (“It is understood that any agreements

reached on these various costs issues will not pre-

clude either State from taking exception to the legal

issues decided in my Orders, and their subsequent

inclusion in a Decree”).

Pursuant to the suggestion of the Special Master,

the States entered into a Costs Settlement Agree-

ment, which is attached to this Brief as Appendix 3.

The elements of costs were specified separately in

paragraph (1) of the Agreement, and it was agreed

that any element of costs not challenged by an excep-

tion filed with the Court would remain a binding

agreement. See App. 3, at App. 19-20. After setting

forth the specific agreement on costs by category in

paragraph (1) of the Costs Settlement Agreement, the

States provided as follows:

“In accordance with the Additional Or-

der, the agreements reached on the items

and the amounts of the costs set forth in

paragraph (1) shall not preclude cither State

from filing exceptions to the Special Master’s

rulings on the legal issues decided by the

Special Master regarding costs, and both

States reserve their right to file exceptions to

the legal issues decided in the Special Mas-

ter’s Orders regarding costs.” Jc/., al App. 19.

The Agreement provided $199,577.19 for total wit-

ness costs, including expert witness attendance lees.

The total amount of costs agreed to was $1,109,946.73.

/d., at App. 18. Colorado has paid Kansas that

amount. Subsequently, Kansas and the United States

entered into a Stipulation on costs. See 1 Fifth Rep. 4.

Il. SUMMARY OF ARGUMENT

The Special Master has held that this Court is

bound in this case by Congressional enactments with

respect. to the award of costs for expert witnesses in

the federal district courts. This appears to be a mis-

reading of both the intent of Congress with respect to

those enactments and of the ultimate authority of the

Court to make awards of costs in original cases.

A statutory scheme beginning in the early days of

the Union, and finding its present form in 1853,

makes clear that the Congressional legislation on

costs applicable to the lower federal courts of original

jurisdiction was not intended to apply to the Supreme

Court’s original jurisdiction. This Court confirmed as

much in 1855 and 1987. Moreover, Congress has

expressly acknowledged the Court’s authority by

providing that costs in this Court may be taxed

against the liligants “as the court directs.”

Even if Congress had intended to regulate taxa-

tion of costs in the original jurisdiction of this Court,

such an act would be subject to the Court’s ultimate

authority to regulate procedure within its constitu-

tionally created original jurisdiction. The Court has

previously held that Congressional enactments are

unnecessary for the exercise of its orginal jurisdic-

tion. Moreover, the constitutional authorization for

Congress to regulate procedure in the Court’s appel-

late jurisdiction does not extend to regulation of the

Court’s original jurisdiction, which strongly suggests

that Congress is not granted that power.

Because of the unique nature of litigation be-

tween States in the Court’s original jurisdiction, the

Court has declared that it has a duty to mold the

proceedings to best attain the ends of justice. This is

especially true in the present case, where the pre ail-

ing downstream State has been required to expend

extremely large amounts for expert costs in order to

protect its rights under the Arkansas River Compact,

and where the [ruits of that expert work can and are

being utilized by the non-prevailing State to allow it

lo continue with postcompact pumping while main-

taining compliance with the Compact.

Ill, ARGUMENT

The Special Master determined that Crayford

Fitting Co. v. J.T. Gibbons. Inc., 482 U.S. 437 (1987),

a case arising in the federal district courts, applies to

cases of original jurisdiction and that taxation of costs

for expert witness fees, pursuant to § 1920, is there-

fore limited Lo the $40-per-day altendance fee pro-

vided in 28 U.S.C. § 1821(b). In Crusjord Pitting, this

Court held that, absent explicit statutory or contrac-

tual authorization, federal courts are bound by the

limitations of §$ 1821 and 1920 when a prevailing

party seeks reimbursement for fees paid to its own

expert witnesses. 482 U.S., at 439, 445. The Court

reached this conclusion based on Rule 54{d) of the —

Federal Rules of Civil Procedure and 28 U.S.C.

$$ 1821 and 1920.

Rule 54(d) provided in part at that time: “Except

when express provision therefor is made either in a

statute of the United States or in these rules, costs

shall be allowed as of course to the prevailing party

unless the court otherwise directs.” /¢/., at 441 (quot-

ing FR.C.P. Rule 54(d)). Section 1920 provides, “A

judge or clerk of any court of the United States may

tax as costs the following: ... (3) fees and disburse-

ments for printing and witnesses....” /cd., at 440

(quoting 28 U.S.C. $ 1920). Section 1821, as quoted by

the Court, provides as follows:

“(aX l) Except as otherwise provided by law,

a witness in attendance at any court of the

United States ... shall be paid the fees and

allowances provided by this section.

“(b) A witness shall be paid an ‘attendance

fee of $30 per day for each day’s attendance.

A witness shall also be paid the attendance

fee for the time necessarily occupied in going

to and returning from the place of atten-

dance at the beginning and end of such

attendance or at any time during such at-

tendance.” 482 U.S., at 441 (quoting 28

U.S.C. § 1821).

The Court read these provisions together to reach its

holding:

“The logical conclusion from the language

and interrelation of these provisions is that

§ 1821 specifies the amount of the fee that

must be tendered to a witness, § 1920 pro-

vides that the fee may be taxed as a cost, and

Rule 54(d) provides that the cost shall be

taxed against the losing party unless the

Court otherwise directs.” 482 U.S., at 441.

~The S80 amount was ratsed to S40 in 1990. Judicial

Improvements Act of 1990, Pub. L. 101-650, § 514.

The Court also disposed of contrary arguments by the

petitioners. /c/., at 441-445.

The Special Master stated, “Rule 17.2 of the

Supreme Court Rules provides that in original ac-

tions the Federal Rules of Civil Procedure may be

taken as guides, and there appears to be no legal

reason why Crawford Fitting should not be applicable

here.” App. 2, at App. 13. The Special Master also

rejected Kansas’ argument that the award of costs in

this Court was addressed separately by Congress in

28 U.S.C. § 1911. /d., at App. 12. The Special Master

did not address Kansas’ argument that the Constitu-

tion requires that ultimate authority for the award of

costs in the original jurisdiction must lie with the

Court.

Subsequent cases have affirmed the Court’s

holding in Crawford Fitting. See Arlington Cent. Seb.

Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 126 S.Ct.

2455, 2458, 2460 (2006) (holding that expert witness

fees could not be shifted to the losing party pursuant

to a disability education statute permitting an award

of attorney fees); Wesr Virginia Univ. Hosps., Ine. v.

Casey, 499 U.S. 83, 85, 102 (1991) (holding that

expert witness fees could not be shifted to the losing

party pursuant to a civil rights statute permitting an

award of attorney fees). For the following reasons,

however, the State of Kansas submits that € parejor/

fitting and its progeny do not apply to proceedings in

the Court's original jurisdiction and that, therefore,

an award of costs for expert fees and expenses is not

limited by $ 1821(b».

A. Congress Has Not Sought to Limit the

Award of Costs in Original Cases

1. This Court Has Recognized That

Congress Has Not Sought to Regu-

late Proceedings in the Court’s

Original Jurisdiction

In 1853, Congress enacted laws to regulate fees

and costs in the circuit and district courts of the

United States. Act of Feb. 26, 1853, 10 Stat. 161 (“An

Act to Regulate the Fees and Costs to be allowed

Clerks, Marshals, and Attorneys of the Circuit and

District Courts of the United States, and for other

Purposes”) [hereinafter the 1853 Fee Act]. Two years

later, in an 1855 case concerning a boundary dispute

between Florida and Georgia, the Court was faced

with a procedural question in an original proceeding.

The Court described the scope of its original jurisdic-

tion and then stated: “But the Constitution prescribes

no particular mode of proceeding, sor [s dere any Act

of Congress upon the subject.” Florida v. Georgta, 17

How. (58 U.S.) 478, 491 (1855) (emphasis added).

Thus, in 1855 the Court observed that there was no

act of Congress dealing with procedure in the original

jurisdiction of the Court. Since this decision was

entered only two years afler the adoption of the 1853

Fee Act, the Court in essence found that there was no

provision in the 18453 Fee Act controlling procedure in

the original jurisdiction of the Court.

In turn, Cfrawysord’ Fritive held that the present

statutes, 28 U.S.C. $ 1821 and 1920, were brought

forward intact from the 1853 Fee Act. Cre sor/

Fiiting, 482 U.S., at 440 (“The sweeping reforms of

the 1853 Fee Act have been carried forward to today

without any apparent intent to change the control-

ling rules”) (internal quotation omitted). Reading the

1853 Fee Act, Florida v. Georgia and Crareford Fti-

ting together leads to the conclusion that Congress,

through 1987, had not enacted any legislation seek-

ing to control the procedure in the original jurisdic-

tion of the Court. And since 1987, Congress has not

amended cither § 1920 or § 1821 to make them appli-

cable to the original jurisdiction of the Court. Corn-

pare 28 U.S.C. §$ 1920 and 1821 with Crawford

litting, 482 U.S., at 440-441 (quoting §$§ 1920 and

1821 as they appeared at that time).”

Moreover, the Court in orida vo. Georgia held

that rules of procedure applicable to proceedings

between individuals “could not govern a case where a

sovereign stale was a party defendant.” 17 How. (58

U.S.), at 492. Yet this is cxactly what the Special

Master has ruled should be done in this case. He has

ruled that $§ 1821 and 1920 apply both to the federal

district courts and to this proceeding between the

States of Kansas and Colorado in the original juris-

diction of the Supreme Court. This is contrary to the

—

~ A leading commentator has reached the same conclusion:

“In any event, Congress has not made any effort to control the

Court's procedure lin original jurisdiction cases)” 17 Charles

Alan Wright et al. Federal Practice and Procedure § 4054. at

255 12007).

Court’s view that a single set of procedural rules

cannot apply to both types of cases.

In fact, the Court has historically applied its own

rules in awarding costs in interstate cases in the

original jurisdiction, without any reliance on acts of

Congress. Traditionally, the Court has declined to

award costs in cases considered to be “governmental.”

In cases that involve “governmental questions, in

which each party has a real and vital [interest],” costs

have typically been divided equally. Nori}: Dakoia v.

Minnesota, 263 U.S. 583, 584 (1924). This is true

because in a “governmental” case neither State is

culpable and both have an equal interest in resolving

the issue to promote order. Thus, costs are typically

divided equally in boundary disputes between States

where both States share an equal interest in identify-

ing the proper boundary between them. In Nort?:

Dakota, the Court stated:

“se

The matter involved is governmental in

character, in which each party has a real,

and yet not a litigious, interest. The object. to

be obtained is the settlement of a boundary

line between sovereign states in the interest,

not only of property rights, but also in pro-

motion of the peace and good order of the

communities, and is one which the states

have a common interest to bring to a satis-

factory and final conclusion. Where such is

the nature of the cause we think the ex-

penses should be borne in common, so far as

may be, .... The same rule, however, does

not apply to cases in which parties have a

litigious interest.” /bid., quoting Mary/and v.

West Virginia, 217 U.S. 577, 582 (1910).

See also Nebraska v. lowa, 143 U.S. 359, 370 (1892).

Where there is a “litigious” interest, costs are

awarded to the prevailing party. Norih Dakoia v.

Minnesota, 263 U.S., at 586 (“costs should be taxed

against. North Dakota, the defeated party”).

A review of the cases that the Court has deemed

“litigious” is instructive. In Nort/i Dakota v. Minne-

sota, the State of North Dakota brought suit against

the State of Minnesota to enjoin the use of drainage

ditches and obtain damages. Similarly, in Wvorning v.

Colorado, 259 U.S. 496 (1922), suit was brought to

obtain an equitable ‘apportionment and to enjoin the

diversion of water. In Missenri oo iilinois, 200 U.S.

496 (1906), and New York v. New Jersey, 256 U.S. 296

(1921), States brought suit to restrain neighboring

States from actions alleged to cause pollution to a

shared body of water. See also Sout): Dakota v. North

Carolina, 192 U.S. 286 (1904). In each of these cases,

the Court awarded costs to the prevailing party since

the action was “litigious.”

* The Special Master recosnized that the Court has

awarded costs to the prevailing partly in cases in which the

parties have a “litigious” interest 1 Fifth Rep, at App 58, citing

North Detoteo. Mennesote, 263 US. 533, 584 (19245, Wyornins

i. Coforedo, 258 US. 496 (1922). Missowrr 6. Mors, 200: US.

196 11906».

A case is “litigious” where one State brings suit

against another State to restrain the other from

taking actions that are alleged to cause injury to the

plaintiff State’s rights or property. This is precisely

the present case. Unlike the cases that are “govern-

mental” in character, Kansas and Colorado did not

share “a common interest to bring [the issues] to a

satisfactory and final conclusion.” Mary/and v. West

Virginia, 217 U.S., at 582. In fact, Colorado had no

incentive to bring suit at all. Rather, Kansas was

forced to file suit in order to protect its rights under

the Arkansas River Compact. Colorado opposed the

motion for leave to file. Moreover, Colorado had

neglected and refused to comply with the Compact

despite having been on notice since 1968 that it was

violating the Compact by allowing postcompact

pumping. See Third Rep. 103 (“I find that by 1968

Colorado knew, or should have known, that postcom-

pact wells were causing material depletions of usable

Stateline flows”).

Kansas’ only recourse to obtain the water to

which it was entitled was through an action in this

Supreme Court’s original jurisdiction. Had Colorado

complied with the Compact, Kansas would not have

been required to put forth the considcrable expendi-

ture and effort needed to enforce its rights. Like

the previous “litigious” cases where the Court has

awarded costs, the present suit was initiated to enjoin

Colorado from continuing practices that damaged

Kansas’ rights under the Compact. Through its

violation of the Compact, Colorado is the ultimate

cause of Kansas’ expenditures, and reasonable expert

witness costs should be taxed against Colorado.

2. Normal Statutory Interpretation

Confirms that Congress Has Not

Sought to Regulate Proceedings in

the Court’s Original Jurisdiction

Early acts of Congress addressing witness fees

and taxation of costs indicate that Congress intended

$$ 1821 and 1920 to apply to the circuit courts and

district courts established by Congress,’ but not to

cases of original jurisdiction in the Supreme Court. In

1853, Congress passed “An Act to Regulate the Fees

and Costs to be allowed Clerks, Marshals, and Attor-

neys of the Circuit and District Courts of the United

States, and for other Purposes,” Act of Feb. 26, 1853,

10 Stat. 161. Therein, Congress provided for the

payment of witness fees and taxation of costs, in a

form similar to that existing in $$ 1821 and 1920

today. The current provisions of $$ 1821 and 1920

represent the intent of Congress as reflected in the

* Congressional authority to regulate the circuit courts and

district courts arises out of the constitutional grant of express

authority to “establish and ordain” inferior courts. See U.S.

Const., art. Il, § 1. The Judiciary Act of 17389 established both

district courts and circuit courts pursuant bo this constitutional

grant. The district courts and circuit courts were both accorded

original jurisdiction, and the circuit courts were also accorded

appellate jurisdiction from the district courts. Act of Sept. 24,

1789. §§ 9-11, 1 Stat. 76-79.

“sweeping reforms of the 1853 Fee Act.” Cram/ord

Fitting, 482 U.S. at 440; see also A/yeska Pipeline

Serv. Co. v. Wilderness Soe’v, 421 U.S. 240, 241, 255-

256 & nn.26-29 (1975) (holding that Congressional

limitations on taxation of altorney fees, as provided

in 28 U.S.C. § 1923 and taxed pursuant to § 1920,

could not be exceeded on the basis of the private

attorney general doctrine).

The provisions of the 1853 Fee Act are effectively

identical to the core provisions of §§ 1821 and 1920.

Like § 1821, the 1853 Fee Act provided that a witness

shall be compensated for appearing in court or before

any officer pursuant to law and shall be reimbursed

for necessary travel based on mileage. 10 Stat. 167;

see 28 U.S.C. § 1821(b)-(c) (providing for an atten-

dance fee and for reimbursement of travel expenses).

Like $ 1920, the 1853 Fee Act also provided that the

fees paid the clerk and marshal, the amount paid

witnesses and printers, and the fees for exemplifica-

tion and copies of papers may be taxed against the

losing party when the prevailing party is so entitled

by law. 10 Stat. 168; see 28 U.S.C. § 1920 (providing

for taxation of the same costs, among others). Signifi-

cantly, the Act provided that such costs “shall be

taxed by a judge or clerk of the court.” 10 Stat. 168.

The language of $ 1920 is effectively identical, stating

that costs may be taxed by “la! judge or clerk of any

court of the United States.”

Legislative history also indicates that Congress

intended to regulate the circuit courts and the district

courts and not the original jurisdiction of the

Supreme Court when it enacted the 1853 Fee Act.

Congress enacted the 1853 Fee Act because of Con-

gressional concerns about the district courts’ lack of

uniformity in compensating officers of the courts and

regulating taxation of costs between private parties.

See Alveska Pipeline, 421 US., at 251-252 & n.24.

Notably, the issue that motivated Congress to pass

the 1853 Fee Act does not apply to original proceed-

ings. This is true because the issue of a lack of uni-

formity among courts is not a concern with respect to

cases of original jurisdiction in the Supreme Court.

Such concerns arise only when there is more than one

sister court. The Supreme Court, in the exercise of its

original jurisdiction, is unique.

Throughout the 1853 Fee Act, the text refers to

district and circuit courts. See, e.c.. 10 Stat. 161

(“clerks of the district and circuit courts”); 10 Stat.

165 (providing fees for marshals’ travel and atten-

dance at the circuit and district courts”), 10 Stat. 167

(stating that no per diem or allowance shall be made

“for attendance at rule days of the circuit or district

courts”). Although the Act in some instances uses

more general terms not strictly limited to the district

or circuit courts, see, .¢g., 10 Stat. 161 (attorneys,

solicitors, and proctors in the United States courts”);

10 Stat. 162 (“attorney, proctor, or other person

admitted to manage or conduct causes in any court of

the United States”), the title of the Act clarifies

Congress’ intent: “An Act to Regulate the Fees and

Costs to be allowed Clerks, Marshals, and Attorneys

of the crreurh and fisiriel Courts at the Uniled Staies.

and for other Purposes” (emphasis added). [rm riigra-

tion & Naturalization Serv, v. National Ctr. for Immi-

grants’ Rights, Inc., 502 US. 1838, 189 (1991)

(ambiguity in the text of a statute may be resolved by

reference to the statute’s title).

Similarly, the express language of the Process Act

of 1789, the first precursor of the 1853 Fee Act and of

the present $§ 1821 and 1920, indicates that Con-

gress intended to regulate fees in the circuit and

district courts and not in the Supreme Court. The

Process Act prevides that the “modes of process and

rates of fees, except fees to judges, in the cireutt and

district courts, in suits at common law, shall be the

same in each state respectively as are now used or

allowed in the supreme courts of the same.” Act of

September 29, 1789, ch. XXI, $2, 1 Stat. 93 (empha-

sis added); sce also A/veska Pipe/ine, 421 U.S., at 248

n.19 (discussing the Process Act of 1789 and subse-

quent acts in regard to attorney fees).

Legislative history regarding the revision of the

Judicial Code in 1948 also supports the position that

Congress did not intend to regulate witness fees and

taxation of costs in cases of original jurisdiction in the

Supreme Court. There, Congress retained the essen-

tial provisions established by the 1853 Fee Act. H.R.

Rep. No. 80-308, at 1 (1947); compare 62 Stat. 950,

$1821, wis/) 10 Stat. 167; 62 Stat. 955, § 1920, iri?

10 Stat. 168. In keeping with the 18453 Fee Act, Con-

gress identified the persons who may order taxation

of costs: “|a] judge or clerk of any court of the United

States.” 62 Stat. 9545: see also 1853 Fee Act, 10 Stat.

168 (stating that costs “shall be taxed by a judge or

clerk”).

The Special Master relied on the definition of the

prepositional phrase “court of the United States” in

$ 451 to support his conclusion that this prepositional

phrase overrides the noun “judge” in § 1920. See App.

2, at App. 11. The Special Master’s conclusion ignores

a fundamental canon of statutory construction, as

well as basic rules of grammar. This Court has held,

“It is our duty to give effect, if possible, to every

clause and word of a statute.” L’nited States v. Me-

nasche, 348 U.S. 528, 538-539 (1955). The Court has

recently applied this principle to interpretation of a

compact, which is a federal statute, criticizing a

contrary interpretation because it “would deny opera-

tive effect to each word in the Compact, contrary to

basic principles of construction.” New Jersey v. Dela-

ware, d52 U.S. __, No. 134, Orig., slip op., at 11

(March 31, 2008) (citing Menasche). The Special

Master, however, reads the term “judge” right out of

the statute. His reading denies «iy effect to the word

“judge,” contrary to the Court’s precedents. See

Weshington Market Co. v. Hloffrean, 101 U.S. 112, 115

(1879) (“We are not at liberty to construe any statute

so as to deny cffect to any part of its language”).

Congress specifically used the nouns “judge” and

“clerk” as the subjects of the primary sentence in

$ 1920. The noun “judge” and the noun “clerk” are

described as being “of any court of the United States.”

This prepositional phrase is used as an adjective

to describe which types of judges and clerks are

intended. See Wm. A. Sabin, Gregg Reference Manual

522 (8th ed. 1996) (a prepositional phrase used as an

adjective to modify a noun indicates “which type”).

Thus, “of any court of the United States” identifies

“which type” of “judge” or “clerk” is subject to $ 1920.

It cannot change “judge” into “justice” if “judge” does

not otherwise include “justice.” Section 451 makes

clear that “judge” does not include “justice.” The term

“justice” is separately defined to include only the

Chief Justice and associate justices « the Supreme

Court. /d. If Congress had intended for § 1920 to

apply to original proceedings in the Supreme Court, it

would have included the word “justice” in § 1920, as it

expressly provided in many other provisions of Title

28. See, e.g.. 28 U.S.C. $$ 371, 443-456, 448, 449.

Section 1920 clearly provides that “[a] judge or clerk

of any court of the United States” may tax costs; it

does not refer to a justice of the Supreme Court

(emphasis added).”

In the recent Opinion of the Court in New Jersey

& Delaware, No. 184, Orig., the Court was also faced

with the effect of a prepositional phrase modifying

the cent.al noun. There, the question was whether

“riparian jurisdiction of every kind and nature”

amounted to “exclusive jurisdiction.” The Court

* In addition, two subparts of § 1920, subparagraphs (2) and

(6). were added by statutes that are expressly limited to courts

other than the Supreme Court, which could not have been done

if § 1920 applied to the Supreme Court. See Court Reporters Act

of January 20, 1944, 53 Stat. 5: Court Interpreters Act. 92 Stat.

2040 (1978).

resisted allowing the prepositional phrase “of every

kind and nature” to convert “riparian jurisdiction”

into “exclusive jurisdiction.” /d., slip op., at 11. In

other words, the expansive prepositional phrase was

not allowed to subvert the meaning of the noun

modified.

Moreover, in discussing the Court’s approach to

statutory interpretation in Lopez v. Gonzales, 549

U.S. __, 127 S.Ct. 625, 631 (2006), the Court made

clear that “the last thing this approach would do is

divorcee a noun from the modifier next to it without

some extraordinary reason.” In that case the issue

was whether the modifier would be disregarded. A

fortior! the noun being modified should not be dis-

carded. Yet that is exactly what the Special Master

did in this case.

As the Special Master notes, § 1821 by its terms,

would appear to apply to the Supreme Court. Fifth

Rep., at App. 96. The only reason that § 1821(b) is

relevant, however, is because it is invoked by § 1920.

Crawford litting, 482 US., at 440 ("The witness fee

specified in § 1920(3) is defined in 28 U.S.C. § 1821”).

Because § 1821(b) only comes into play if invoked by

§ 1920(3), the real question is whether § 1920 applies

to cases in the Court’s original jurisdiction.

Moreover, the applicability of § 1821(b) to origi-

nal proceedings is open to question despite ils par-

ticular language. The Court has said, “The sweeping

reforms of the 18453 Fee Act have been carried for-

ward to today, ‘without any apparent intent to change

the controlling rules.” Crureford Fitting, 482 US., at

440, quoting A/yeska Pipeline. In Crawford Fitting,

thid., despite the change in wording from the 1853

Fee Act (“The following ic no other compensation

shall be taxed and allowed”) (emphasis added) to the

present $ 1920 (“A judge or clerk of any court of the

United States may tax as costs the following”) (em-

phasis added), the Court in essence held that the

change in wording was not found to indicate a change

in intended effect. Likewise, it would appear that

even though the Supreme Court is literally included

within the definition of the terms used in § 1821, no

change in effect was intended by the change in word-

ing from the 1853 Fee Act, which clearly applied only

to circuit and district courts. The same may be said of

$ 1920 to the extent that the words “clerk of any court

of the United States” might be taken to refer to the

clerk of this Court.

In 28 U.S.C. $1911, Congress recognized the

Supreme Court’s inherent authority to tax costs as it

deems appropriate. Whereas § 1920 provides for

taxation of costs in the lower federal courts, § 1911

addresses costs in the Supreme Court. It provides

“The Supreme Court may fix the fees to be charged by

its clerk. The fees of the clerk, cost of serving process,

and other necessary disbursements incidental to any

case before the court, may be taxed against the liti-

gants as the court directs.” Thus, § 1911 confirms

that Congress did not intend lor § 1920 to apply to

eases of original jurisdiction in the Supreme Court.

The distinction recognized by Congress between the

Court’s original and appellate jurisdiction is shown by

28 U.S.C. $1912, wherein Congress limits the Su-

preme Court’s discretion in cases of appellate juris-

diction. That section provides that the Supreme Court

or a court of appeals, “may adjudge to the prevailing

party just damages for his delay, and single or double

costs.”

Moreover, statutory provisions for the determina-

tion of fees in the courts of appeals and the district

courts support the position that Congress recognized

the Supreme Court’s inherent authority in § 1911.

Compare $1911 with 28 U.S.C. § 1913 (providing that

the fees and costs in the courts of appeals shall be

“reasonable and uniform in all the circuits” and that

such fees and costs “shall be prescribed ... by the

Judicial Conference of the United States”), anc 28

U.S.C. § 1914 (providing that the filing fee in the

district courts shall be $350 and that additional fees

may be collected “only as are prescribed by the Judi-

cial Conference”). This express distinction between

the fees that may be fixed and taxed by the Supreme

Court and the fees that must be prescribed by the

Judicial Conference for courts of appeals and district

courts reflects both Congressional intent to regulate

fees and costs in the lower courts and Congressional

recognition of the inherent authority that the Su-

preme Court has in cases of original jurisdiction.

The Special Master states that an award of costs,

as provided in the second sentence of $ 1911, applies

only to fees charged by the Supreme Court clerk.

App. 2, at App. 12-13. However, the plain language of

$1911 includes “[t]he fees of the clerk” as one cost

among others that may be taxed as directed by the

court: “The fees of the clerk, costs of serving process,

and other necessary disbursements incidental to any

case before the court, may be taxed against the liti-

gants as the court directs.” Clearly, § 1911 does not

limit taxation of costs in the Supreme Court to “the

fees to be charged by its clerk.”

Second, and more importantly, the Special Mas-

ler misinterprets Kansas’ reliance on $1911. The

Special Master’s ruling that expert witness fees are

not covered by § 1911 assumes that Congress must

authorize recovery of expert witness fees in interstate

water proceedings of original jurisdiction by a specific

statute. See bid’. Kansas does not rely on the author-

ity allegedly “granted” to the Supreme Court by

Congress in $1911 to support Kansas’ position.

Rather, as discussed supra, Kansas believes that

$ 1911 supports the conclusion that Congress did not

intend for $$ 1821 and 1920 to limit. the Supreme

Court’s inherent authority to award costs as it deems

appropriate in cases of original jurisdiction. Section

1911 merely recognizes the Court’s constitutional

authority to award costs, which authority the Court

has historically exercised. See H.R. Rep. 50-308, at

A149 (stating that the sccond paragraph of § 1911,

regarding taxation of costs, was “inserted to give

statutory sanction to existing practice”). Thus, § L911

does not’ manilest Congressional intent to limit the

Court’s authority to award costs: rather, § 1911

indicates that Congress did not intend to limit the

Supreme Court’s inherent authority by $$ 1920 and

1821 in cases of original jurisdiction. Section 1911

recognizes the Court’s inherent authority and histori-

cal practice of exercising this authority.

In sum, previous enactments, legislative history,

and other statutory provisions regarding fees and

taxation of costs illustrate that Congress ,did not

intend for §§ 1821 and 1920 to apply to cases arising

under the Supreme Court’s original jurisdiction. As a

result, it is clear that the holding in Crawford Fitting

does not apply to cases arising under the Supreme

Court’s original jurisdiction. Crawford Fitting relies

heavily on the 1853 Fee Act to reach the conclusion

that taxation of costs for expert witnesses is limited

by $$ 1821 and 1920. Crusjord Fititng, 482 US., at

440. As discussed above, the 1853 Fee Act specifically

applied to circuit courts and district courts. In addi-

tion, reading the acts and statutes in puri materia,

Crawford Fiiiing, 482 US., at 445; Unried Slates cv.

Stewart, 311 U.S. 60, 64 (1940), it is apparent that

Congress did not intend to encroach on the inherent

authority of the Supreme Court in cases of original

jurisdiction, but rather intended to regulate the

proceedings of the lower federal courts, which regula-

tion corresponds to the Congressional authority to

“ordain and establish” inferior courts and to regulate

appellate jurisdiction. See U.S. Const., art. HI, $$ 1,

B. This Court Has Final Authority Over

the Award of Costs in Original Cases

Even if Congress, arguendo, intended to regulate

the proceedings of the Supreme Court in cases of

original jurisdiction, Article ITI, § 2, Clause 2 of the

Constitution suggests that the Court must have final

authority with regard to such matters. The first

sentence of $2, Clause 2 establishes the cases in

which the Supreme Court has original jurisdiction:

“In all Cases affecting Ambassadors, other public

Ministers and Consuls, and those in which a State

shall be Party, the supreme Court shall have original

Jurisdiction.” U.S. Const., art. ITI, §2. Article III

provides no other limitation on its grant of original

jurisdiction to the Supreme Court. By its terms,

Article III does not grant Congress authority to

regulate the original jurisdiction. In contrast, the

second sentence of } 2, Clause 2 establishes the cases

in which the Supreme Court has appellate jurisdic-

tion: “In all the other Cases before mentioned, the

supreme Court shall have appellate Jurisdiction, both

as to Law and Fact, wrth: suet Exceptions. an! vide

such Regulations as the Congress shall man” US.

Const., art. II, $2 (emphasis added). The grant of

appellate jurisdiction is expressly qualified, whereas

the grant of original jurisdiction is not. This differ-

ence in language would suggest that the founders did

not grant Congress the authority to regulate the

Court's original jurisdiction.

Chief Justice Marshall utilized similar reasoning

in Murbury oo Madison, 1 Cranch (4 U.S.) 137 (1803),

when he addressed Congressional power to expand

the scope of the Court’s original jurisdiction:

“It has been insisted, at the bar, that as

the original grant of jurisdiction, to the Su-

preme and inferior courts, is general, and the

clause, assigning original jurisdiction to the

Supreme Court, contains no negative or re-

strictive words, the power remains to the leg-

islature, to assign original jurisdiction to

that court in other cases than those specifica

in the article which has been recited; pro-

vided those cases belong to the judicial power

of the United States.

If it had been intended to leave it in the

discretion of the legislature to apportion the

judicial power between the supreme and in-

ferior courts according to the will of that

body, it would certainly have been useless to

have proceeded further than to have defined

the judicial power, and the tribunals in

which it should be vested. The subsequent

part of the section is mere surplusage, is en-

tirely without meaning, if such is to be the

construction. If congress remains at liberty

to give this court appellate jurisdiction,

Where the constitution has declared their

jurisdiction shall be original; and original

jurisdiction where the constitution has de-

clared it shall be appellate; the distribution

of jurisdiction, made in the constitution, is

form without substance.

Affirmative words are often, in their op-

eration, negative of other objects than those

affirmed; and in this case, a negative or ex-

clusive sense must be given to them, or they

have no operation at all.

It cannot be presumed that any clause in

the constitution is intended to be without ef-

fect; and therefore such a construction is in-

admissible, unless the words require it.” 1

Cranch (5 U.S.), at 174.

The same reasoning found to prohibit Congress from

expanding the scope of the orginal jurisdiction in

Marbury would appear to prohibit Congress from

adopting regulations for procedure in the original

jurisdiction. As in Marbury, a negative or exclusive

sense is inherent in the affirmative words describing

the power of Congress to regulate the appellate

jurisdiction, with the result that the power of

Congress to regulate is excluded as to the original

jurisdiction. Otherwise, the words “under such Regu-

lations as the Congress shall make” would “have no

operation at all.” [hid.’

The Court has often declared its power to proceed

in its original jurisdiction without any authorizing

Congressional legislation. In Florida v. Georgia, 17

* "This. in fact. is the opinion of a leading commentator: “OF

course, the fact the drafters of Article II] included a provision

that gives Congress the authority to regulate the Courts

appellate jurisdiction, coupled with their failure to include a

comparable provision directed at its original jurisdiction,

strongly suggests Congress cannot regulate or modily the hatter.”

22 James Wm. Moore. Moores Federal Practice § 402.02)2)[b]. at

1002-24.8 (Sd ed. 2007».

How. (58 U.S.) 478 (1855), the Court, faced with a

question of procedure in the original jurisdiction,

stated:

“But the court, upon much consideration,

held, that although Congress had undoubt-

edly the right to prescribe the process and

mode of proceeding in such cases, as fully as

in any other court, yet the omission to legis-

late on the subject could not deprive the

court of the jurisdiction conferred; that it

was a duty imposed upon the court; and in

the absence of any legislation by Congress,

the court itself was authorized to prescribe

its mode and form of proceeding, so as to ac-

complish the ends for which the jurisdiction

was given.” /c/., at 492.

To the extent that this is still reliable precedent,

which is subject to question, the Court appears to be

indicating a cooperative approach with Congress if

Congress should choose to provide guidance with

respect to procedures in the original jurisdiction. Yet,

in the case of a conflict, the authority of the Court

logically must be supreme.”

* The Court was apparently relying on Greyson 1 Virginie,

3 Dall. 63 U.S.) 320 (1799), a pre-Murdurv case. See florida i.

Crorgvet, 17 How. (58 ULS.), at 492.

* One commentary has addressed this issue:

“Procedural authority, however, cannot be divorced

from the power to control jurisdiction. The Court has

ruled that it can exercise the original jurisdiction es-

tablished by the Constitution without any need for

‘Continued on following page!

In Texus vo New Mexico, 482 U.S. 124 (1987),

another water compact case, the Supreme Court

recognized its inherent authority in cases of original

jurisdiction. There, New Mexico argued that the

Supreme Court was “without power” to award post-

judgment interest absent statutory authority. New

Mexico relied on Pierce v. United States, 255 U.S. 398

(1921), which had held that a federal district court

could not award postjudgment interest absent statu-

tory authority. Without hesitation, the Court in 7exus

vu. New Mexteco rejected this argument. The Court

stated, “But we are not bound by this rule in exercis-

ing our original jurisdiction.” Jexas v. New Mexteo,

482 U.S., at 132 n.8. In this instance, the Court

affirmed that, when exercising its original jurisdic-

tion, the Court is not bound by statutory rules appli-

cable to the lower federal courts.

In sur, the absence of express constitutional

language granting Congress authority to regulate the

Court’s origina! jurisdiction, viewed in light of the

congressional guidance in matters of procedure. The

opinions announcing this resull, moreover, suggest

that Congress lacks power to retract any portion of

the original jurisdiction. If indeed the Constitution es-

tablishes original jurisdiction beyond congressional

control, the Court must have final authority over the

procedure to be used. Any other conclusion would sub-

ject the constitutional jurisdiction lo drastic impair-

ment or even defeat by unworkable procedures

mandated by Congress.” 17 Charles Alan Wright et

al., Federal Practice and Procedure § 4054. at 235

(2007) (footnote omitted).

express language specifying the power of Congress to

regulate the appe//ute jurisdiction, leads to the con-

clusion that the power to regulate the original juris-

diction of the Supreme Court was not conferred upon

Congress. The reasoning in Marbury is consistent

with this conclusion. And 7exus v. New Mexico recog-

nized the Court’s inherent authority to act without

Congressional authorization in the context of a water

compact case, like the instant case. Any interpreta-

tion of $$ 1821 and 1920 that assumes such Congres-

sional power should therefore be rejected. For this

reason, also, the Court’s power to award costs in the

original jurisdiction, cannot be limited by §§ 1821 and

1920.

C. Reasonable Expert Costs Should Be

Awarded in this Case

Based on the Special Master Orders, which

preserved the States’ right to file exceptions, and

which nevertheless encouraged the States to pursue

agreement, the States agreed that the appropriate

value of witness costs, including expert witness

allendance fees was $199,577.19. The States con-

firmed that they were reserving their rights to file

exceptions as authorized by the Special Master. See

App. 3, at 19.

Kansas proposed total expert costs of $9,214,727.81.

1 Fifth Rep., at App. 94. Therefore, there is a very

sizeable amount of the expert costs incurred by Kansas

that is not allowable under the Special Master's

ruling that the $40-per-day limit applies. In fact, his

ruling allows only some 2% of the total expert witness

costs incurred. Most of Kansas’ proposed expert costs

were related to the development of the H-I Model,

including, infer alia, expert analysis of (1) the Arkan-

sas River Compact, (2) the physical attributes of the

Arkansas River Basin in Colorado and Kansas, (3)

the water supply facilities constructed by private and

governmental entities in the Basin, (4) the compli-

cated hydrology of the Basin, and (5) the hydrologic

and institutional data needed for model input. The

development of the H-I Model computer program code

was, itself, a Herculean effort. As the Special Master

has recognized, the contributions of the experts, with

respect to the H-I Model and otherwise, were essen-

tial to the resolution of the interstate issues before

the Court. See, e.g., id., at App. 89-91.

The Court has emphasized the unique nature of

the rules of procedure that must be applied in inter-

stale cases:

“There was no difficulty in exercising this

power where individuals were partics;....

But these precedents could not govern a case

where a sovereign State was a party defen-

dant. ... And it became, therefore, the duty

of the court to mold its proceedings for itsclf,

in a manner that would best attain f/re erc!s

of tusitce, and enable it to exercise conven-

iently the power conferred. And in doing this,

it was without doubt one of its first objects

to disengage them from all unnecessary

technicalities and niceties, and to conduct

the proceedings in the simplest form in

which the ends of justice could be attained.”

Florida v. Georgia, 17 How. (58 U.S.) 478,

492 (1855) (emphasis added).

The unique relationship between two sovereign

States in an interstate water proceeding supports an

award of actual expert witness fees in cases involving

breach of a Compact. A downstream “‘ate, such as

Kansas, lies at a distinct disadvantage in relation to

an upstream State. The upstream State controls the

water Lo which the downstream State is entitled, and

an upstream State’s misappropriation and overuse of

water is difficult and costly to ascertain and quantily.

It is also difficult for the downstream State to enforce

its rights against the upstream State and ensure that

the upstream State meets its obligations.

As evidenced by the costs incurred by Kansas in

this case, developing the modeling necessary to

evidence the upstream State’s misappropriation and

overuse of water is a formidable task requiring exten-

sive and expensive expert analysis and research. A

downstream State, such as Kansas, should not be

unfairly burdened by the formidable expert expenses

necessary lo protect ils rights against an upstream

State, provided that it ultimately prevails, as Kansas

has in this case.

Fairness and the need to preserve a balance

between the interests of upstream and downstream

States supports an award of actual expert wilness

fees where the expert witness evidence and modeling

is adopted by the breaching party and relied on by the

Court. Both the Special Master and Colorado relied,

and Colorado continues to rely, on the fruits of the

work of Kansas’ experts for which costs have been

requested. Indisputably, Kansas’ expert witnesses

have provided testimony, research, and analysis that

were crucial to resolution of this case. The Court’s

disposition of this case rests on the results obtained

from Kansas’ experts. Indeed, the Court and Colorado

ultimately adopted the H-I Model, the product of

Kansas’ expert research and analysis, as the method

for determining Compact compliance. See, e.g.,

Fourth Rep. 121. The H-I Model has also made it

possible for Colorado to continue to allow postcompact

pumping, by quantifying replacement water require-

ments, rather than shutting off all postcompact

pumping, as requested by Kansas. See Order Denying

Kansas Motion for Injunction. App. to Second Rep. 12.

In fact, the H-I Model is explicitly relied upon by

Colorado in its Use Rules, which control almost all

pumping in the Arkansas River Basin affected by this

case. See 2 Fifth Rep., App. J.1, at J.7 (“The state and

division engineers shall use the Kansas Hydrologic-

Institutional Model (HTM) and the Durbin usable flow

method with the Larson coefficients, or such other

method approved by the Special Master, the United

States Supreme Court, or the Arkansas River Com-

pact Administration to determine depletions to usable

Stateline flow caused by post-compact ground water

diversions for irrigation use”).

For the foregoing reasons, Kansas should be al-

lowed to recover reasonable expert witness costs. Since

the Special Master assumed that the $40-per-day

limit applies in this case, he did not fully consider the

reasonableness of Kansas’ proposed expert witness

costs if the $40-per-day limit does not apply. Kansas

therefore requests that the Court remand the case to

the Special Master for consideration of Kansas’ pro-

posed award of expert witness costs in light of the

Court’s ruling, in order that the “ends of justice” may

be attained.

IV. CONCLUSION

Kansas’ Exception should be sustained, and the

case should be remanded to the Special Master for

consideration in light of the Court’s ruling.

Respectfully submitted,

STEPHEN N. Six

Attorney General of Kansas

Micnuaen C. Lerrceu

Deputy Attorney General

JOHN M. Cassipy

Assistant Attorney General

LELAND E. Ro.Fs

Special Assistant Allorney General

JOUN B. DRAPER

C'ouasel of Record

Special Assistant Attorney General

SitARON T. SUALLEEN

MoNTGOMERY & ANDREWS, P.A.

Post Office Box 2307

Santa Fe, New Mexico 87504-2307

(505) 982-3873

App. 1

APPEND‘X 1

Constitutional and Statutory Provisions Involved

U.S. Constitution

Art. ITI, § 2, el. 2

In all Cases affecting Ambassadors, other public

Ministers and Consuls, and those in which a State

shall be Party, the supreme Court shall have original

Jurisdiction. In all the other Cases before mentioned,

the supreme Court shall have appellate Jurisdiction,

both as to Law and Fact, with such Exceptions, and

under such Regulation as the Congress shall make.

Title 28, U.S. Code

§ 451. Definitions

As used in this title:

The term “court of the United States” includes

the Supreme Court of the United States, courts of

appeals, district courts constituted by chapter 5 of

this title, including the Court of International Trade

and any court created by Act of Congress the judges of

which are entitled to hold office during good behavior.

The terms “district court” and “district court of

the United States” mean the courts constituted by

chapter 5 of this title.

The term “judge of the United States” includes

judges of the court of appeals, district courts, Court of

International Trade and any court created by Act of

App. 2

Congress, the judges of which are entitled to hold

office during good behavior.

The term “justice of the United States” includes

the Chief Justice of the United States and the associ-

ate justices of the Supreme Court.

The term “district” and “judicial district” mean

the districts enumerated in Chapter 5 of this title.

The term “department” means one of the execu-

tive departments enumerated in section 1 of Title 5,

unless the context shows that such term was in-

tended to describe the executive, legislative, or judi-

cial branches of the government.

The term “agency” includes any department,

independent establishment, commission, administra-

tion, authority, board or bureau of the United States

or any corporation in which the United States has a

proprietary interest, unless the context shows that

such term was intended to be used in a more limited

sense.

$ 1821. Per diem and mileage generally; subsistence

fa¥l) Except as otherwise provided by law, a

witness in attendance at any court of the United

States, or before a United States Magistrate Judge, or

belore any person authorized to take his deposition

pursuant to any rule or order of a court of the United

States, shall be paid the fees and allowances provided

by this section.

App. 3

(2) As used in this section, the term “court of

the United States” includes, in addition to the courts

listed in section 451 of this title, any court created by

Act of Congress in a territory which is invested with

any jurisdiction of a district court of the United

States.

(b) A witness shall be paid an attendance fee of

$40 per day for each day’s attendance. A witness shall

also be paid the attendance fee for the time necessar-

ily occupied in going to and returning from the place

of attendance at the beginning and end of such atten-

dance or al any time during such attendance.

{e1) A witness who travels by common carrier

shall be paid for the actual expenses of travel on the

basis of the means of transportation reasonably

utilized and the distance necessarily traveled to and

from such witness’s residence by the shortest practi-

cal route in going to and returning from the place of

attendance. Such a witness shall utilize a common

carrier at the most economical rate reasonably avail-

able. A receipt or other evidence of actual cost shall be

furnished.

(2) A travel allowance equal to the mileage

allowance which the Administrator of General Ser-

vices has prescribed, pursuant to section 5704 of title

5, for official travel of employees of the Federal Gov-

ernment shall be paid to each witness who travels

by privately owned vehicle. Computation of mileage

under this paragraph shall be made on the basis of a

App. 4

uniformed table of distances adopted by the Adminis-

trator of General Services.

(3) Toll charges for toll roads, bridges, tunnels

and ferries, taxicab fares between places of lodging

and carrier terminals, and parking fees (upon presen-

tation of a valid parking receipt), shall be paid in full

to a witness incurring such expenses.

(4) All normal travel expenses within and

outside the judicial district shall be taxable as costs

pursuant to section 1920 of this title.

(dl) A-subsistence allowance shall be paid to a

witness when an overnight stay is required at the

place of attendance because such place is so far

removed from the residence of such witness as to

prohibit return thereto from day to day.

{2) A subsistence allowance for a witness shall

be paid in an amount not to exceed the maximum per

dicm allowance prescribed by the Administrator of

General Services, pursuant to section 5702(a) of title

5, for official travel in the area of attendance by

employees of the Federal Government.

(3) A subsistence allowance for a witness at-

tending in an area designated by the Administrator of

General Services as a high-cost areca shall be paid in

an amount not to exceed the maximum actual subsis-

tence allowance prescribed by the Administrator,

pursuant to section 5702(c)B) of title 5, for official

travel in such area by employees of the Federal

Government.

App. 5

(4) When a witness is detained pursuant to

section 3144 of title 18 for want of security for his

appearance, he shall be entitled for each day of

detention when not in attendance at court, in addi-

tion to his subsistence, to the daily attendance fee

provided by subsection (b) of this section.

(e) An alien who has been paroled into the

United States for prosecution, pursuant to section

212(d)(5) of the Immigration and Nationality Act (8

U.S.C. 1182(4)(5)), or an alien who either has admit-

ted belonging to a class of aliens who are deportable

or has been determined pursuant to section 240 of

such Act (8 U.S.C. 1252(b)') to be deportable shall be

ineligible to receive the fees or allowances provided

by this section.

(f) Any witness who is incarcerated at the time

that his or her testimony is given (except for a wit-

ness to whom the provisions of section 3144 of title 18

apply} may not receive fees or allowances under this

section, regardless of whether such a witness is

incarcerated at the time he or she makes a claim for

fees or allowances under this section.

So in original Reference in parenthests should probably

be “«S TLS.C. 1229ar"

App. 6

$ 1911. Supreme Court

The Supreme Court may [fix the fees to be

charged by its clerk.

The fees of the clerk, cost of serving process, and

other necessary disbursements incidental to any case

before the court, may be taxed against the litigants as

the court directs.

$ 1912. Damages and costs on allirmance

Where a judgment is affirmed by the Supreme

Court or a court of appeals, the court in its discretion

may adjudge to the prevailing party just damages for

his delay, and single or double costs.

$ 1920. Taxation of costs

A judge or clerk of any court of the United States

may tax as costs the following:

{]) Fees of the clerk and marshal:

{2) Fees of the court reporter for all or any part

of the stenographic transcript necessarily obtained for

use in Lhe case;

(3) Fees and disbursements for printing and

witnesses:

(4) Fees for exemplification and copies of papers

necessarily obtained for use in the case;

App. 7

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts,

compensation of interpreters, and salaries, fees,

expenses, and costs of special interpretation services

under section 1828 of this title.

A bill of costs shall be filed in the case and, upon

allowance, included in the judgment or decree.

App. 8

APPENDIX 2

IN THE SUPREME COURT

OF THE UNITED STATES

STATE OF KANSAS, )

Plaintif,

v. )

STATE OF COLORADO, } No. 105 Original

Defendant, }

UNITED STATES '

OF AMERICA, '

Intervenor. )

ADDITIONAL ORDER

REGARDING AN AWARD OF COSTS

This is the second Order concerning an award of

costs. In my first Order dated December 19, 2005, I

determined that Kansas was the prevailing party

under Rule 54(d)(1) of the Federal Rules of Civil

Procedure and is entitled to costs, although the

amount of those costs is a “more complicated issuc.”

During the liability phase of the trial, it became

necessary for Kansas to interrupt its case for almost a

year, resulling in a “replacement case.” I indicated in

my earlier Order that Kansas’ costs should not in-

clude these failed efforts in originally attempting to

establish the amount of depletions, and the final cost

allocation should recognize the additional burdens

App. 9

placed on Colorado in having to meet. a second Kan-

sas case on the liability issue.

Having decided the “prevailing party” issue, I

directed the States to confer to see if an agreement on

costs could be reached, and if not, to submit specific

cost proposals, and to brief the issue of whether

expert. witness fees are limited to $40 per day pursu-

ant to 28 U.S.C. $1821(b). In separate briefs filed

February 1, 2006, the States reported that they had

come to agreement on certain cost items, bul were

unable to reach a full agreement. Both States pro-

vided specific proposals on items to be included in a

cost award, and the amounts of such items.

Kansas submitted alternate proposals, one based

on the assumption that expert witness fees were not

limited to $40 per day. The other calculation assumed

that expert witness costs were, in fact, limited to

those allowed for lay witnesses. In both of these

calculations, Kansas made a 25° reduction in the

witness fees associated with the two experts during

the liability phase who were replaced. Without the

$40 per day limit, the Kansas proposal for expert fees

and expenses totaled $9,214,727.81. Assuming the

limit in § 1821(b) to be applicable, such costs were

$162,927.94.

After reviewing the Kansas proposal, Colorado

responded that it did not have sullicient information

to evaluate all of the costs submitted, but Colorado's

proposed witness costs were $103,308.94. This total

was based on applying the § 18S21l(b) lmit, and

App. 10

reflected a reduction in the number of attendance

days allowed for certain witnesses.

The principal legal issue is whether the $40 per

day limit found in § 1821(b) governs an interstate

proceeding in the original jurisdiction of the United

States Supreme Court. I have determined that it

does. There is no question about the facts that such

limit applies to expert witness costs in cases arising

in the federal district courts. That issue was settled

in Crawford Fiiling Co. v. J.T. Gibbons. Inc., 482 U.S.

437 (1987). In that decision the Supreme Court held

that “when a prevailing party seeks reimbursement

for fees paid to its own expert witnesses, a federal

court is hound by the limit of § 1821(b), absent con-

tract or explicit statutory authority to the contrary.”

(/c?. at 439) In this opinion, the majority of the Court

rejected the view that the language in Rule 54(d) of

the Federal Rules of Civil Procedure was intended as

a grant of discretion to district courts in the allow-

ance of expert witness [ees.

Kansas, however, does not challenge the applica-

tion of §1821l(b) to federal district court cases.

Rather, it argues that Crawjord Fitting does not

apply here because that ruling was expressly depend-

ent on 28 U.S.C. § 1920, and § 1920 does not govern

an award of costs in original proceedings in the

Supreme Court. Kansas maintains that the Supreme

Court’s authority to award expert witness fees as

costs is found in 28 U.S.C. § 1911, and Congress in

enacting §$ 1911 carefully avoided “any attempt to

App. 1l

interfere with the Court’s inherent discretion to

award costs.” (Feb. 1, 2006 Bricf at 6)

Section 1920 provides that a “judge or clerk of

any court of the United States” may tax as costs

certain enumerated fees, including the fees of “wit-

nesses.” It is Kansas’ position, however, that this

section does not apply to the Supreme Court because

the term “judge” does not include a “justice” of the

Supreme Court. Had Congress intended § 1920 to

apply to original proceedings, Kansas argues that it

would have included the word “justice” as it has in

other provisions of Title 28. See, e.g., $$ 453-56, 458,

459. However, Kansas ignores the remaining lan-

guage in the sentence referring to “any court of the

United States.” And that language is specifically

defined to include the Supreme Court for all purposes

of Title 28. 28 U.S.C. $ 451. Thus the term “judge,” I

conclude, must be read in its broad sense. Otherwise,

the Kansas interpretation would be in direct conflict

with a specific statutory definition. Indeed, the term

“judge” does sometimes refer to a justice of the Su-

preme Court, as in Art. ITI, Sec. 1 of the Constitution

itself.

Moreover, § 1821 which amplifies the fees and

allowances that may be paid to witnesses, also spe-

cifically applies to the Supreme Court. That section

also provides that a wilness in attendance at “any

court of the United States” shall be paid $40 per day

for each day’s attendance, as well as travel expenses

and a subsistence allowance when an overnight stay

App. 12

is required. $ 1821(b). This is an absolute require-

ment, not dependent on the term judge or justice.

This section again specifically incorporates $451

defining the term “any court of the Untied States” to

include the Supreme Court. $ 182 1(a)(2).

In the face of these explicit applications of the

expert witness fee limits to the Supreme Court, it is

hard to accept Kansas’ claim that Congress “made a

calculated decision to exclude the Supreme Court”

from such limits by using the term “judge,” without

adding the term “justice.”

Nor do I find that Kansas’ argument on Congres-

sional intent is aided by 28 U.S.C. $1911. That

section provides:

The Supreme Court may fix the fees to

be charged by its clerk.

The fees of the clerk, cost of serving

process, and other necessary disbursements

incidental to any case before the court, may

be taxed against the litigants as the court di-

rects.

Kansas ciles a number of state cases to the effect that

the term “disbursements” is consistently interpreted

to refer to expenditures which may be recovered as a

cost. But these are cases under various state cost

statutes. No case is cited interpreting $ 1911. More-

over, Kansas puts its emphasis only on the word

“disbursements” without the caveat that the statute

covers only “incidental” disbursements. This section

applies only to “fees to be charged by its |the Supreme

App. 13

Court] clerk.” I do not believe that expert witness fees

were intended to be covered. Certainly in a case of

this kind, expert fees are not “incidental,” and would

not be set by the Clerk.

When Congress has intended to allow the recov-

ery of expert witness fees and attorney fees, it has

done so clearly under specific statutes. Many of these

statutes are discussed in West Virginia University

Tlospital v. Casey, 499 U.S. 83 at 88-90 (1991). Absent

such statutory intervention, “costs” as allowed under

Federal Rules are not the same as expenses of litiga-

tion. Rule 17.2 of the Supreme Court Rules provides

that in original actions the Federal Rules of Civil

Procedure may be taken as guides, and there appears

to be no legal reason why Crutcjord Fitting should not

be applicable here. The Court held that “federal

courts are bound by the limitations set out in 28

U.S.C. § 1821 and $ 1920.” Cruwjord Filiing at 445.

While the expert fee limit accounts for the largest

difference in the Kansas and Colorado cost proposals,

the States still differ over other issues. Kansas,

however, suggests that “further discussion” between

the States on these issues might allow resolution of

the dollar figures. The following observations might

assist in those discussions.

Section 1821(a)i) provides that a “witness in

attendance at any court of the United States” shall be

paid the fees as preseribed. Section 1821(b) limits the

wilness fee to $40 per day “for each day’s attendance.”

The States are in agreement as to the number of days

App. 14

that the various expert witnesses actually testified.

But they disagree over the allowance that should be

made for the days during which experts were present

in court, but did not testify. Kansas multiplied the

testimony days by two for certain witnesses and by

three for others, while Colorado reduced the total

number of attendance days for certain witnesses. I

am not sure whether any simple multiplier provides

an appropriate result, but I believe that a “day’s

attendance” should be liberally construed. This was a

case of expert testimony. It was necessary for experts

not only to testify, but also to hear the testimony of

opposing witnesses, and to assist counsel in cross-

examination. Both States used experts in the same

way, and properly so.

For the disruption in the liability phase of their

case, Kansas has proposed a 25% reduction in the

costs associated with two experts, and has already

incorporated that reduction into its cost submittal.

That reduction, however, appears to be on the low

side. Moreover, an appropriate reduction should also

apply to the reporter’s and Master’s costs associated

with the necessity for the replacement casc.

Kansas has proposed that all of the Master’s fees

and expenses should be reallocated and assessed

against Colorado as costs. Such fees and expenses

were allocated 40° to each State and 20° to the

United States during the liability phase of the trial.

Thereafler, they have been allocated and paid by the

States equally. Colorado acknowledges that these fees

and expenses can be reallocated by the Court, but

App. 15

maintains that it would be unfair to reallocate al]

of Kansas’ share, including time spent on issues

wherein Kansas claims were denied, or arguments on

which Kansas was not successful. I agree. Colorado

proposes, if the Special Master fees and expenses are

to be reallocated, that it be on the basis of two-thirds

to Colorado and one-third to Kansas, which may not

be unreasonable.

It is understood that any agreements reached on

these various costs issues will not preclude either

State from taking exception to the legal issues de-

cided in my Orders, and their subsequent inclusion in

a Decree.

Based on this Order, if the States cannot agree

upon the costs to be included in the Decree within a

month from the date hereof, they are to report on the

items and amounts on which there is agreement, and

on the items still in controversy. I will then issue a

final Order on the amount of costs to be included in

the Decree. |

Dated: April 17, 2006.

/s/ Arthur L. Littleworth

Arthur L. Littleworth

Special Master

App. 16

APPENDIX 3

No. 105, Original

IN THE SUPREME COURT

OF THE UNITED STATES

STATE OF KANSAS,

Plaintiff.

STATE OF COLORADO,

Defendant.

and

UNITED STATES OF AMERICA,

Defendant-Intervenor.

Costs Settiement Agreement

This Agreement is entered into this 2nd day of

June, 2006, by the State of Colorado and the State of

Kansas with respect. to the costs to be included in the

Judgment and Decree in this case.

Recitals

WHEREAS, Special Master Arthur L. Little-

worth entered an Order Regarding An Award of Costs

(Order) dated December 19, 2005, in this case in

which he found that Kansas was the prevailing party

App. 17

within the meaning of F.R.C.P. 54(d)(1) and is entitled

to an award of costs, but should not receive costs for

its failed efforts at establishing the amount of deple-

tions and that the cost allocation should recognize the

additional burdens that were placed on Colorado in

having to meet a second Kansas case; and

WHEREAS, Special Master Littleworth entered

an Additional Order Regarding An Award of Costs

(Additional Order) dated April 17, 2006, in which he

ruled that costs, including expert witness fees, were

subject to the limitations set out in 28 U.S.C. §§ 1920

and 1821, but added that the term “day’s attendance”

in section 1821l(b) should be construed liberally

because il was necessary for experts not only to

testify, but also to hear the testimony of opposing

witnesses, and to assist counsel in cross-examination,

which both States properly did; and

WHEREAS, Special Master Littleworth further

determined in the Additional Order that the fees and

expenses of the Special Master paid by Kansas could

be reallocated and assessed against Colorado as costs,

but that it would be unfair to reallocate all of Kansas’

share to Colorado: and

WHEREAS, based on the Additional Order, the

Special Master gave the States additional time for

further discussion, to sce if they could reach agree-

ment on the amount of the costs to be included in the

Deeree; and

App. 18

WHEREAS, the Additional Order stated that it is

understood that any agreements reached between the

States on the various costs issues will not preclude

either State from filing exceptions to the Special

Master’s rulings on the legal issues regarding costs in

his Orders or their subsequent inclusion in a Decree;

and

WHEREAS, the States desire to reach agreement

on the amount of costs to be included in the Decree

based upon the Special Master’s Orders regarding

costs;

NOW, THEREFORE, the States agree as follows:

{1) The total amount of the costs through Janu-

ary 31, 2006, to be paid by Colorado to Kansas and to

be included in the Decree is $1,109,946.73. The items

of costs that have been agreed to by the States and

the amounts for each item are as follows:

Kansas’ share of the $627,615.20

Special Master's fees

and assessments to be

reallocated to Colorado

Witness costs, $199,577.19

including expert witness

attendance feces

Exhibit costs £30,417.38

Trial transcripts * 158,885.26

Deposition costs $93,451.70

Total $1,109,946.73

App. 19

This agreement dves not address costs incurred

after January 31, 2006, including any Special Mas-

ter’s fees and expenses assessed against the States

after that date.

(2) Kansas will rely on the good faith of Colorado

to pay Kansas the agreed amount of $1,109,946.73 as

soon as possible and before the Judgment and Decree

is entered. If the agreed amount is not paid in full by

the time that the Judgment and Decree is entered,

the unpaid amount shall bear postjudgment interest.

{3) In accordance with the Additional Order, the

agreements reached on the items and the amounts of

the costs set forth in paragraph (1) shall not preclude

either State from filing exceptions to the Special

Master’s rulings on the legal issues decided by the

Special Master regarding costs, and both States

reserve their right to file exceptions to the legal

issues decided in the Special Master’s Orders regard-

ing costs. In the event that the U.S. Supreme Court

grants an exception, whether in whole or in part, with

respect to a legal issue or issues decided by the Spe-

cial Master regarding costs, the States agree that the

amount of the costs that have been agreed to by the

States for that item or items will be re-determined in

light of the Supreme Court’s ruling, in which case,

none of the assumptions or agreements that were

made to agree upon costs for that item based upon

the Special Master’s ruling shall be binding on either

State; but, the States agree that other items of costs

and the amounts of those other items of costs, as set

forth above, that are not affected by the Supreme

App. 20

Court’s decision shall be final and binding and shall

not be subject to modification. For example, if the

U.S. Supreme Court were to conclude that expert

witness fees are not subject to the limitations set out

in 28 U.S.C. $§ 1920 and 1821, then none of the

assumptions and agreements that were made to

determine witness costs as set forth in paragraph (1)

shall be binding in determining witness costs based

on the Supreme Court’s ruling: however, if that were

the only exception granted, the amounts for realloca-

tion of Kansas’ share of the Special Master’s fees and

assessments, exhibit costs, trial transcripts, and

deposition costs, as set forth above, would be final

and binding and not be subject to modification.

STATE OF COLORADO STATE OF KANSAS

/s/ David W. Robbins /s/ John B. Draper

David W. Robbins John B. Draper

Counsel of Record Counsel of Record

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