Opposition Brief — Kansas v. Colorado

No. 105, ORIGINAL

In Whe

Supreme Court of the Anited States

STATE OF KANSAS,

Plaintiff.

v.

STATE OF COLORADO,

Defendant,

UNITED STATES OF AMERICA,

Defendant-Intervenor.

a

vy

On Exceptions To The Fifth And

Final Report Of The Special Master

&

vv

COLORADO’S REPLY IN OPPOSITION

TO KANSAS’ EXCEPTION

,

vy

JONN SUTTIERS

Attorney General of Colorado

DAVID W. ROBBINS

Special Assistant Attorney General

Counse! of Record

DENNIS M. MONTGOMERY

Special Assistant Attorney General

HILL & ROBBINS, PC.

1441 — 18th Street, #100

Denver, Colorado 80202

(303) 296-8100

May 2008

COCKLE LAW BRIEF PRINTING CC. (300) 225.6964

1K CALL COLLECT #02) 542 2851

TABLE OF CONTENTS

Page

TEENS ee AR PRR 1

SE _____EAEER EIEN INIT UR ESET NEI MERE 4

A. The Special Master Correctly Deter-

mined That 28 U.S.C. § 1821(b) Limits

The Award Of Costs For Expert Wit-

ness Fees In This Case......................06 4

B. Kansas’ Argument That 28 U.S.C.

$1920 Does Not Apply To This Court

Because It Uses The Word “Judge” Ig-

nores The Remaining Language O!

aeons cttcatpiiintnineyerdiasswee ek

C. 28 U.S.C. § 1911 Is Limited To Fees To

Be Charged By The Supreme Court

Clerk, Costs Of Serving Process, And

Incidental Disbursements: It Does Not

Cover Expert Witness Fees ................... 14

D. Congress May Regulate Expert Wit-

ness Fees In Cases Within The Court’s

Original Suriediction .............c.cccccsesceess 16

E. The Application Of 28 U.S.C. $ 1821(b)

Is Not Unfair In This Case.................... 19

Rat REE a eRe RENE TRO NTR 22

STEN bneceidivsinatntanvecnscanresacs SSoaniialiaunaas Raseiiolnaaiaeiannien la

ii

TABLE OF AUTHORITIES

Page

CASES

Alyeska Pipeline Service Co. vo. Wricderness

erent, GD WB Be CD oes ccsstevicsivscencensessasusesise ll

Arlingion Cent. Seh. Dist. Bed. of Edue. v.

Murpiry, G48 UD. BO1 (QOGB)....0sccccsscoccsecesssecssccecesees 5

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

Re RE ONT EE eno pussite

Florida v. Ceorgia, 17 How. (58 US.) 478

| RRSP RaNE nen ey eae aE 9, 16, 17, 18, 19

Grayson v. Virginia, 3 Dall. (3 U.S.) 320 (1796)........ 17

Hitnots tv. City of Milwankee, 406 U.S. 91 (1972) ...... 18

Kansas tv. Colorado, 514 U.S. 673 (1999)...........0....0. 21

Kansas t. Colorado, 543 U.S. 86 (2004)............... 1.3.3

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

PIII ieicsisisiisaiovidsininmninniondeioinmniaenipenaaiisanbedauidtadintlonieniie 16

Ofio v. Wrandoite Chenfeals Corp., 401 USS.

OP saiesitensinnnnnindinensionerniectiaisasaouiebapiesinntensiouniess 1s

Pierce v. United States, 255 U.S. 398 (1921) ............. 19

Tevas v. Netwe Mevico, 462 US. 554 (1983)... 21

Texas v. Neve Mexico, 482 U.S. 124 (1987)... ly

West Virginia Tosps.. Ine. v. Cusey, 499 US. 83

ii

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTION, STATUTES AND RULES

I I cdi cali hialanlisiabcadeidibnigsiorindsieddalonsigda passim

ESPNS See OP nO OPORTO eEeD 18

a eames passim

fk ee hail Aanndaidahcade 1, 14, 15

TIRES E aE nP ane ee ee ee. 15

I is sda tin enndeatieneeiamieliibild 15

I cried teas sinilinteeiieesdeat denies passive

Act of Feb. 26, 1853, 10 Stat. 161 .....0.0000..... 6,9, 10, 11

Act of June 25, 1948, 62 Stat. 869 .... 9, 12

Revised Statutes of 1874, 18 Stat. 138 2000000... 13

U.S. Constitution, Article ITI, § 1..........000000ce ec. 13

Arkansas River Compact, 63 Stat. 145..........0..0.... 20

SPECIAL MASTER REPORTS

First Report of Special Master, Aurisus v.

Colorado, No. 105, Orig. (1994)...............00 6, 15, 20

Fourth Report of Special Master, Aursas v.

Colorado, No. 106, Orig. (QQ0B)..............000ccccccescceeeess 3

Fifth and Final Report of Special Master,

Kansas 0. Colorado, No. 104, Orig. (2008) ..... Passiry

iv

TABLE OF AUTHORITIES — Continued

Page

OTLUER AUTHORITIES

13 Fed. Prac. & Proc. Juris.2d, The -J/ucdren!

Power of the United States § 3525 (2008)............... 18

I. STATEMENT

On December 7, 2004, the Court overruled Kan-

sas’ exceptions to the Fourth Report of Special Master

Arthur L. Littleworth in this long-running water

dispute, accepted the Special Master’s reeommenda-

Lions, and remanded the case for preparation of a

decree consistent with its opinion. Aunsas v. Colo-

rado, 543 U.S. 86, 106 (2004). At the end of January

2008, Special Master Littleworth submitted his Fifth

and Final Report (“Final Report”). The Final Report

includes a proposed Judgment and Deeree, which, he

slates, “is crafled with the firm intent to end the 100

year history of litigation over rights to the Arkansas

River.” 1 Final Report 1. Colorado strongly supports

the Special Master’s stated intent.

The proposed Judgment and Decree includes a

Dispute Resolution Procedure that includes arbitra-

tion if the States cannot agree. 2 Final Report 5 &

Appendix H. Previously, the Special Master had

proposed binding arbitration of any future dispute

related to the H-I model, but. Kansas had declined.

Fourth Report 135; see Kunsas v. Colorado, 5438 U.S.

al. 93-94 (discussing the possibility of resolving future

technical disputes through arbitration). In the pro-

posed Judgment and Decree, the Siates have agreed

to binding arbitration of many issues prior to Decem-

ber 31, 2016. 2 Final Report, Appendix H at. H.&. All

other issues will be submitted to non-binding arbitra-

Lion unless the States agree in writing to submit the

issues to binding arbitration. /c/., at H.Y. Colorado

hopes that with time, Kansas will become more

2

comfortable with the Dispute Resolution Procedure

and agree to an extension of binding arbitration of

issues arising under the Decree.

The Special Master explains the reasons why a

decree could not be submitted immediately following

the remand in 2004, including the fact that he had

recommended a ten-year accounting period using the

H-I model to determine compliance with the Arkan-

sas River Compact, which the Court had approved in

its 2004 opinion. 1 Final Report 1-3. The first ten

years of model results were not available until 2007

and other issues needed to be determined. /:/., at 1.

The proposed Decree includes the results from the

first ten-year period that began with 1997 when

Colorado’s Use Rules became fully cffective and ended

with calendar year 2006. /c/., at 3-4. Colorado was in

compact compliance at the end of the first ten-year

period, and, as the Special Master notes, the account-

ing showed acerctions (inereascs) to usable Statcline

flows of 3,882 acre-feet. /., al 4. Under the approved

ten-year accounting procedure, a determination of

whether Colorado owes Kansas water in 2008 will be

made by taking the model’s total results for the years

1998-2007. For 2009, the determination will be made

using the model’s total results for the years 1999-

2008, and so forth. See id.; Kersas vo Colorado, 543

US. at 99-100.

The proposed Judgment and Decree includes

thirteen Appendices (A through M> that, among other

things, specify accounting proccdurcs using the ten-

year accounting (Appendix A) and procedures for

3

annual updates to the H-I model (Appendix B). Nota-

bly, Section V of Appendix B includes proceedures for

proposing changes to the H-I model, a source of

considerable disagreement between the States in the

past. #.2., Fourth Report 80-92; Kansas v. Colorado,

443 U.S. at 99 (noting that the modcl’s ability to

calculate depletions had proved highly controversial,

leading to many modcl modifications during the

litigation). If the States cannot agree on such

changes, they are subject. to the Dispute Resolution

Procedure. 2 Final Report, Appendix B at B.20.

Foilowing the remand, the Special Master ap-

proved a schedule to resolve issues that were still in

dispute. 1 Final Report, App. 1-3. Colorado urged that

the experts for the States be assigned greater respon-

sibility for discussing and resolving issues. /¢/., at

App. 3; see Kansas v. Colorado, 543 U.S. at 106 (ex-

pressing the hope that expert discussion, negotiation,

and, if necessary, binding arbitration would lead to

resolution of any remaining disputes). The Special

Master agreed, '</., App. 4, and this approach ulti-

mately bore fruit in a series of agreements between

the Chief Engineer of Kansas and the State Engineer

of Colorado to resolve issues. /:/., App. 21. The Special

Master graciously acknowledges the cfforts of these

State officials in resolving disputed issues, 1 Final

Report 23-24, but the Special Master deserves a

substantial measure of the credit for his firm insis-

Lence on resolution of these issues. /:’., App. 3-4, 20-

23. Also, for the first time, the States have prepared

documentation for the H-I model, which is included in

4

Volume HI of the Final Report. This will greatly

assist new State officials and experts, as well as

arbitrators, if required.

In summary, the Final Report includes a _ pro-

posed Judgment and Decree consistent with the

Court’s 2004 opinion. The Special Master recom-

mends that the Court approve his orders and the

entry of the proposed Judgment and Decree. 1 Final

Report 26. Neither State has taken exception to these

recommendations, except for Kansas’ exception to the

amount of costs. Thus, the only remaining issue for

the Court to resolve is whether the Special Master

was correct in ruling that 28 U.S.C. § 1821(b) limits

costs for expert. witness fees in this case.

Il. ARGUMENT

A. The Special Master Correctly Deter-

mined That 28 U.S.C. § 1821(b) Limits

The Award Of Costs For Expert Wit-

ness Fees In This Case.

As with other issues in this long-running case,

the Special Master gave careful consideration to

Kansas’ argument that 28 U.S.C. § 1821(b) does not

apply to the award of expert witness fees in this case.

As the Special Master noted, there is no que#fjon

that the $40 per day limit in § 1821(h) applies to

expert witness costs in cases arising in the federal

district courts: “That issue was settled in € preresore!

hitting Co. ve. AT. Grhbors. die., 482 US. 437 (1987).

In that decision the Supreme Court held that ‘when a

5

prevailing party seeks reimbursement for fees paid to

its own expert witnesses, a federal court is hound by

the limit of }1821(b), absent contract or explicit

statutory authority to the contrary.’” 1 Final Report,

App. 95 (quoting Crawford Filling, 482 U.S. at 439)

see also Arlington Cent. Sef. Dist. Bd. of KHdue. v.

Murpiy, 548 U.S. 291, 126 S.CL. 2455, 2458, 2460

(2006); West Virginia Hosps., Ine. v. Casey, 499 US.

83, 86, 102 (1991).

Kansas does not challenge the application of

§ 1821(b) to lower federal courts. Instead, it argues

that 28 U.S.C. 3 1821(b) and } 1920 do not apply to

the U.S. Supreme Court. As the Special Master

pointed out, Kansas ignores the fact that both § 1821

and § 1920 use the term “court of the United States,”

which is expressly defined in 28 U.S.C. $451 to

include the Supreme Court. 1 Final Report, App. 96-

97. As the Special Master said, “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... .” /:’., at App.

Y¥7 (internal quotations omitted).

Having determined that the $40 per day limit. in

> 1821(b) applied to the award of costs for expert

witness fees in this case, the Special Master then

coneluded that the statute should be “liberally con-

strued” to include days when expert witnesses were

present in Court, but did not testily, such as days

When experts were present to hear testimony and to

assist counsel in cross-cxamination. /:/., al App. 99.

6

Since Kansas had experts present on virtually every

day of the approximately 270 days of trial, and they

were entitled to their travel, hotel, and other ex-

penses under the Special Master’s ruling, this some-

what offsets Kansas’ claim that the $40 per day limit

is unfair. The Special Master also ruled that an

appropriate reduction should be applied for the

additional expense and disruption caused by the

wilhdrawal of Kansas’ chief technical witness during

the liability phase before his cross-examination was

completed and the year-long continuance that re-

sulted to allow Kansas to obtain replacement experts,

correct crrors in the H-I model, and present Kansas’

replacement case. //., at App. 89, 99; see 2 First

Report 236-38, 241. Based on the Special Master’s

rulings, the States agreed to an award of costs in the

amount of $1,109,946.73, which Colorado has paid. 1

Final Report 5.

Kansas now argues that Congress has not sought

Lo limit the award of costs in the Court’s original

jurisdiction. It argues that the 18453 Fee Act (Act of

Feb. 26, 1853, 10 Stat. 161) was intended to regulate

fees and costs only in the circuit and district courts of

the United States, and that the Court in © rusesfor!

Fitting held that the present statutes (28 U.S.C.

$$ 1821 and 1920) were brought forward intact

from the 1858 Fee Act. Brief in Support of Kansas’

Exception (“Kansas Brief”) at 14-14, 19-23. This

argument ignores the addition of a definition of the

Lerm “court of the United States” in § 441 of title 28

-

‘

of the Judicial Code of 1948 and is based on a mis-

reading of Cramford itring.

28 U.S.C. $451 defines the term “court of the

United States” for the purposes of title 28 of the U.S.

ode. It states, in pertinent part, as follows:

“As used in this title:

The term ccourt of the United States’ im

cludes the Supreme Court of the Untitled

States, courts of appeals, district courts con-

stituted 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.” (Emphasis added.)

28 U.S.C. $1821 uses the term “court of the

United States” in specifying the fees and allowances

that shall be paid to witnesses and specifically incor-

porates the courts listed in § 451:

“(aX l) Except as otherwise provided by

law, a wilness in attendance at any cour! of

fhe United States, or before a United States

Magistrate Judge, or before any person au-

thorized 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.

. } : 2 4

(2) GAs msed in this seetton. the term

. ’ pat” : r . " , > 2 } . 4

Pare oy ifie [ pide Slithes tie lucles, in addi-

° PS , be. S 4 12 Pa af at .

lion to (fie consis fistedh in seeiton 45] owe tal

rive, any court created by Act of Congress

in a territory which is invested with any

8

jurisdiction of a district court of the United

States.

(b>) A witness shall be paid an atten-

dance fee of S10 per day for evel: day's atten-

dance. A witness shall also be paid the

attendance fee for the time necessarily occu-

pied in going to and returning from the place

of attendance at the beginning and end of

such attendance or at any time during such

attendance.” (Emphasis added.)

28 U.S.C. § 1920 also uses the term “court of the

United States.” It provides as follows:

“A judge or clerk of any cour! of ‘he

l‘nitted States may tax as costs the following:

(1) Fees of the clerk and marshal:

{2) Fees of the court reporter for all or

any part of the stenographic transcript nec-

essarily obtained for use in the case:

(3) Fees and disbursements for printing

and stresses:

(4) Fees for exemplification and copies

of papers necessarily obtained for use in the

case;

(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.

9

A bill of costs shall be filed in the case

and, upon allowance, included in the judg-

ment or decree.” (Emphasis added.)

Kansas’ argument that Congress intended to

exclude the Supreme Court from the limit on expert

witness fees in § 1821(b) is based on the 1853 Fee Act

and a statement from Craw/ord Fiiting. First, Kansas

states that Congress enacted the 1853 Fee Act to

regulate fees and costs in the circuit and district

courts. Kansas’ Brief at 14; see a/so id. at 19-22, 26.'

Next, Kansas states that two years later, in Florida v.

Ceorgia, 17 How. (58 U.S.) 478, 491 (1855), the Court

said there was no act of Congress dealing with proce-

dure in the original jurisdiction of the Court. Kansas’

Brief at 14. Kansas argues that since this decision

was entered only two years after the adoption of the

1853 Fee Act, the Court “fn essence found that there

was no provision in the 1853 Fee Act controlling

procedure in the original jurisdiction of the Court.”

id. (emphasis added). In florida v. Georgia, however,

the Court did not address, and had no occasion to

~ Kansas relies in part on the tithe of the 18553 Fee Act for its

argument that Congress intended the 1853 Fee Act to apply only

to the circuit and district courts. Kansas’ Brief at 21-22. This is

by no means clear. The tithe also included “other Purposes,” s««

id. at 22, and the Act also referred to “the United States courts”

in the first sentence, 10 Stat. 161, and “court of the United

States” elsewhere, LO Stat. 162, in addition to “the circuit and

district courts.” Whatever the intent in 1855, however, Congress

clarified its intent by the addition of a definition of the term

“court of the United States” in § 451 of tithe 28 of the Judicial

Code of 1948. Act of Tune 25, 1948, 62 Stat. S69, 907.

10

address, the issue of whether the witness fee and

costs provisions of the 1853 Fee Act applied to this

Court. The issue in that case was whether the Attor-

ney General of the United States could intervene in a

case in this Court involving a boundary question

between two states. 58 U.S. at 495-96. Regardless,

even if the witness fee and costs provisions of the

1853 Fee Act applied only to the circuit and district

courts in 1853, which is by no means clear, Congress

clarified its intent when it added a definition of the

term “court of the United States” in 28 U.S.C. $ 441, a

term that appears in both § 1821 and $ 1920.

The statement Kansas relies on from € rataford

Fitting does not support its argument. Kansas ac-

knowledges that in Cramford Fitting this Court held

that “when a prevailing party seeks reimbursement

for fees paid to its own expert witnesses, a federal

court. is bound by the limit of $ 1821(b), absent con-

tract or explicit statutory authority to the contrary.”

482 U.S., at 439: Kansas’ Brief ai 11. However, Kan-

sas argues that Cramjord Fitting held that the pre-

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

brought forward intact from the 1853 Fee Act.” Kan-

sas’ Brief at 14. Thus, Kansas contends that, not with-

standing the use of the term “court of the United

States” in § 1821 and § 1920, those statutes apply

only to the district and circuit courts. [1/.; see also rel.,

at 24-26. This argument will not stand scrutiny.

The Court in Crarecjord Frivine did not state that

$ 1821 and § 1920 were brought forward “intact” from

the 1853 Fee Act. Instead, the Court. said, “The

11

sweeping reforms of the 1853 Act have been carried

forward to today, ‘without any apparent intent to

change the controlling rules.’” 482 U.S. at 440 (quot-

ing Alveska Pipeline Service Co. v. Wilderness Soctety,

421 U.S. 240, 255 (1975)). The “controlling rules”

referred to by the Court were those governing fees

and the taxation of fees as costs in federal courts.

Citing ils carlicr decision in A/veska Prpeliuie, the

Court said that by 1853 there was a “great diversily

in practice among the |federal| courts” and “losing

litigants were being unfairly saddled with exorbitant

fees.” Jd. (quoting Alyeska Pipeline, 421 U.S. at 241).

The Court said, “Accordingly, Congress returned to

the issue [in the 18453 Fee Act] and comprehensively

regulated feces and the taxation of fees as costs in the

federal courts.” 482 U.S. at 440.° “The resulting 1853

Fee Act ‘was a far-reaching Act specifying in detail

the nature and amount of the taxable items of cost in

the federal courts.’” //. (quoting A/vesku Pipeline, 421

U.S. at 241-52). The Court concluded: “Title 28 U.S.C.

$ 1920 now embodics Congress’ considered choice as

to the kinds of expenses that a federal court may tax

us costs against the losing party.” /c/. The Court in

In Alywesto Pinefime, the Court reviewed the history of the

award of costs and attorneys fees al common law and in the

federal courts. The Court noted that in 1855, Congress under-

took to standardize the costs allowable in federal litigation. 421

US. at 251. The Court noted that the 1855 Fee Act was carried

forward in subsequent revised statutes and that “[i]ts substance

without any apparent intent to change the controlling rules, was

also included in the Revised Code of 1945 as 28 US.C. $$ 1920

and 1923(a)." Te, at 255.

12

Crawford Filting did not suggest, however, that there

had been no revisions to the provisions of the 1853

Act. governing fees and the taxation of fees as costs in

subsequent statutes to clarify their coverage.

Given the addition of a definition of the term

“court of the United States” in § 441 of title 28 of the

Judicial Code of 1948 (Act. of June 25, 1948, 62 Stat.

869, 907), a term that expressly includes the United

States Supreme Court, and given that the term “court

of the United States” is used in both § 1821{b) and

$ 1920, Kansas’ argument is simply a contrived effort

lo get around the plain meaning of the term “court of

the United States” to avoid the limitation on expert

witness fees in §} 1821(b).

B. Kansas’ Argument That 28 U.S.C.

§ 1920 Does Not Apply To This Court

Because It Uses The Word “Judge” Ig-

nores The Remaining Language Of

The Statute.

Next, Kansas argues that the Special Master

incorrectly relied on the definition of the term “court

of the United States” in 28 U.S.C. § 451 Lo support his

conclusion. Kansas’ Brief at 23. Kansas contends that

this term is used in a prepositional phrase in § 1920

and argues that the Special Master allowed this

prepositional phrase to override the noun “judge” in

$1920. //. Kansas argues that the prepositional

phrase “of any court of the United States” cannot

change the word “judge” into “justice.” /c. at 24. In

13

support of ils argument, Kansas states that the term

“justice” is separately defined in § 451; thus, Kansas

argues that if Congress had intended for § 1920 to

apply to proceedings in the Supreme Court, it would

have used the term “justice.” Jd.

As the Special Master pointed out, Kansas ig-

nores the remaining language of the statute. 1 Final

Report, App. 96. The first sentence in § 1920 includes

the term “court of the United States.” The term “court

of the United States” is defined in $ 451 to include the

Supreme Court. The terms “judge of the United

States” and “justice of the United States” are also

defined in 28 U.S.C. § 441, but neither of those terms

is used in $ 1920. Instead, $ 1920 refers to a “judge”

or “clerk” of any “court of the United States.” Since

the term “court of the United States” is defined to

include the Supreme Court, and § 1920 docs not usc

the term “judge of the United States,” the Special

Master correctly determined that the word “judge” in

$ 1920 is broad enough to include a justice of the

Supreme Court. 1 Final Report, App. 96." Otherwise,

* For example, Article LIL, Section 1, of the U.S. Constitu-

tion states: “The Judges, both of the supreme and _ inferior

Courts, shall hold their Offices during good Behavior, ... ” Thus,

the word “judge” can include a justice of the Supreme Court.

Congress has also used the word “judges” when referring to

justices of the Supreme Court and judges of the lower federal

courts. ks, section 727 of Tithe XILL of the Revised Statutes of

1874, 18 Stat. 188 (The judges of the Supreme Court and of the

circuit and district courts, the commissioners of the circuit

courts, and the judges and other magistrates of the several

States... .").

a

there would be a conflict in that §$ 1920 would apply

to the clerk of the Supreme Court but not to a “jus-

tice” of the Supreme Court because a “justice” is not a

“judge.” No such conflict occurs because §$ 1920 docs

not use the term “judge of the United States” — the

term defined in § 451; it simply uses the word “judge.”

The word “judge” in $ 1920 therefore does not exclude

justices of the Supreme Court.

Furthermore, the use of the word “judge” in

$ 1920 makes sense when one considers the alterna-

tive of using the terms defined in § 451 in $ 1920, viz,

“A justice of the United States or a judge of the

United States or a clerk of any court of the United

States may tax as costs the following: ...” Whatever

gain in precision this language would have achieved

is at. the expense of brevity; the phrase “of the United

States” has to be repeated three times in the subject

of the sentence. The use of the word “judge” in § 1920

is therefore understandable.

C. 28 U.S.C. § 1911 Is Limited To Fees To

Be Charged By The Supreme Court

Clerk, Costs Of Serving Process, And

Incidental Disbursements; It Does Not

Cover Expert Witness Fees.

Kansas also argues that in 28 U.S.C. §$ 1911,

Congress recognized the Supreme Court’s inherent

authority to tax costs as it deems appropriate. Kan-

sas’ Brief at 26. Kansas argues that $ 1911 therefore

confirms that Congress did not intend for § 1920 to

15

apply to cases of original jurisdiction in the Supreme

Court. //¢. The Special Master did not find Kansas’

argument persuasive. 1 Final Report, App. 97. He

pointed out that the first sentence of $ 1911 applics

only to “the fees to he charged by its [the Supreme

Court| clerk.” /. The second sentence of § 1911 refers

Lo the “fees of the clerk, cost of serving process, «nd

other necessary disbursements incidental to any case

before the court.” As the Special Master noted, § 1911

covers only “incidental” disbursements and “fees to be

charged by its clerk.” //. He therefore concluded that

expert witness fees were not intended to be covered

because expert witness fecs are not “incidental” and

would not be set by the clerk. /:., App. 97-98.

Morcover, when $1911 is read together with

$ 1821 and $ 1920, it is apparent $ 1821 specifies the

amount of the fee that must be tendered to a witness

in any “court of the United States” and $ 1920 pro-

vides that the fec may be taxed as a cost by a “judge”

or “clerk” of any “court of the United States.” (raz

ford Fitting, 482 US. at 441. Congress then ad-

dressed the fees to be charged by the Supreme Court’s

clerk, the cost of serving process, and other necessary

disbursements incidental to any case before the Court

in § LYLL. This is similar to § 1913, which specifies

that the fees and costs to be charged and collected in

each court of appeals shall be prescribed from time to

time by the Judicial Conference of the United States

and that such fees and costs shall be reasonable and

uniform in all circuits. 28 U.S.C. § 1918. See afso 28

U.S.C. $1914 (setting filing fees and providing that

16

additional fees to be collected by the clerk of each

district court shall be only as are prescribed by the

Judicial Conference of the United States). These

provisions for setting feces and costs clearly do not

override § 1821(b) or § 1920. Otherwise, they would

render $1821 and § 1920 without meaning. See

Crawford Fitting, 482 U.S. at 442.

D. Congress May Regulate Expert Wit-

ness Fees In Cases Within The Court’s

Original Jurisdiction.

Next, Kansas argues that even if Congress in-

tended to regulate the proceedings of the Supreme

Court in cases of original jurisdiction with respect to

expert witness fees, it could not do so because the

founders of the Constitution did not grant Congress

the authority to regulate the Court’s original jurisdic-

tion. Kansas’ Brief at 30-32. There is no precedent to

support Kansas’ argument.

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

(1803), the Court held that Congress could not pre-

scribe that cases that the Constitution says are

within the appellate jurisdiction of the Court shall be

within the original jurisdiction of the Court and vice-

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

492 (1855), the Court held that legislation is not

required for the Court to exercise its original jurisdic-

tion. But, the Court has never suggested that Con-

gress cannot regulate such matters as expert witness

fees and the taxation of costs in proceedings before

17

the Court in cases of original jurisdiction. Two cases

indicate just the opposite. In Grayson v. Virginia, 3

Dall. (8 U.S.) 320 (1796), the Court said, “The general

rule prescribes to us an adoption of that practicc,

Which is founded on the custom and usage of Courts

of Admiralty and Equity, constituted on similar

principles; but. still, it is thought, that we are also

authorised to make such deviations as are necessary

lo adapt the process and rules of the Court to the

peculiar circumstances of this country, subject to the

mnterpostivon, alteration, and control, of the Legiala-

ture.” 3 Dall. (83 U.S.) at 320 (footnote omitted) (em-

phasis added). And, in Florida v. Georgia, 58 U.S. 478

(1854), the Court stated:

“But the constitution prescribes no particular

mode of proceeding, nor is there any act of

congress upon, the subject. And at a very

early period of the government a doubt arose

whether the court could exercise its original

jurisdiction without a previous act of congress

regulaling the process and mode of procecd-

ing. But the court, upon much consideration,

held, that a/t/ioue): congress had undoubted!

the right to PPese ibe the Process and rm ote of

proceeding tn such cases, as fully as im any

ollwr couri, ye the omission to legislate on

the subject could not deprive the court of the

jurisdiction conferred; that it was a duty im-

posed upon the court; and fy (iv absence of

any lesisiation by congress, the court itself

was authorized to prescribe its mode and

form of proceeding, so as to accomplish the

ends for which the jurisdiction was given.”

18

58 U.S. at 491-92 (emphasis added); sve 13 Fed. Prac.

& Proc. Juris.2d The -suchietal Power of the Unite

States $3h24 (2008) (“[Ajlthough Congress could

legislate on the Court’s process and mode of proceeding

if it wished, it was the duty of the Court in the absence

of congressional action to fill in procedural lacunac

and to proceed with actions within its original jurisdic-

tion.”). In sum, there is no precedent to support

Kansas’ argument that the Constitution prohibits

Congress from imposing a limit on expert. witness fees

in cases within the Court’s original jurisdiction.

Moreover, there is a sound reason for having a

uniform rule for costs for expert witnesses in federal

courts, including the Supreme Court. The Court’s

original jurisdiction is not. exclusive in all cases. 28

ULS.C. } 1241; e.¢., Ofto v. Wrandotte Chemicals Corp.,

401 U.S. 493 (1971); itnois vo. Crly of Miiicunukee, 406

U.S. 91, 98 (1972). Therefore, it would not make sense

to have different rules for expert. witness costs in the

lower federal courts and this Court in cases where this

Court has concurrent jurisdiction. The availability of

expert witness fees as costs can be a factor in the

choice of forum for litigants, and there is no reason to

make this Court a more attractive forum for litigants

on that score. Nor does it make sense to have one rule

for costs for expert witness fees in all federal courts

except the Supreme Court. The considered choice of

Congress to make witness fees and the taxation of fees

as costs uniform in aiuy “court of the United States” is

supported by good sense and does not interfere with

the exercise of the Court’s original jurisdiction.

19

Kansas also relies upon a statement in Terris v.

New Mexico to support its argument that the Court

has “inherent authority in cases of original jurisdic-

Lion.” Kansas’ Brief at 34, citing 482 U.S. 124 (1987).

In that case, New Mexico had relied on Pierce v.

lnited States, 254 U.S. 398 (1921), to argue that. post

judgment interest could not be awarded absent statu-

Lory authority. The Court said, “But we are not bound

by this rule in exercising our original jurisdiction.”

Texas v. New Mexico, 482 U.S., at 132 n.8. The rule

referred to by the Court was not a statute enacted by

Congress prohibiting the award of post judgment

interest in the absence of statutory authority. Rather,

il was a common law rule, and il was thal common

law rule that the Court said it was not bound by in

exercising ils original jurisdiction. The Court did not

suggest that Congress could not set a uniform rate for

post judgment interest for cases in any court of the

United States, as it has done in the case of witness

fees. By setting fees and allowances for witnesses in

28 U.S.C. § 1821 for any court of the United States,

Congress has exercised its “undoubted[]” right to

proscribe the mode of proceeding in cases in this

Court. Florida vo. Georgia, 58 U.S. 17 How.) at 492.

E. The Application Of 28 U.S.C. § 1821(b)

Is Not Unfair In This Case.

Finally, assuming 28 U.S.C. § 1821(b) does not

limit the taxation of expert witness lees as costs in

this case, Kansas argues that reasonable costs should

be awarded for its expert wilness expenses in this

20

case because most of its expert witness expenses were

related to the development of the H-I model, which it

says was a “Herculean effort.” Kansas’ Brief at. 36.

Kansas argues that, as a downstream State, it lics at

a distinct disadvantage in relation to an upstream

State and that devcloping the modcling necessary to

evidence the upstream’s misapproprialion and over-

use is a formidable task requiring extensive and

expensive expert analysis and research. /:/., at 37.

Kansas therefore argues that fairness and a need to

preserve a balance between the interests of upstream

and downstream Statcs supports an award of actual

expert witness fees where the expert witness evidence

and modeling is adopted by the breaching party and

relied on by the Court. /:7., at 37-38.

Assuming, areguendo, that §$1821(b) does not

limit the taxation of expert witness feces as costs in

this case, the reasons offered by Kansas do not justily

an award of costs for expert witness fees in excess of

Lhe limit. in 28 U.S.C. } 18210b). First, Article TV-D of

the Arkansas River Compact applies to future benefi-

cial development in both Celorado and Kansas. Ar-

kansas River Compact, 63 Stat. 145, 147: 2 First

Report 304. Thus, the upstream/downstream State

dichotomy that Kansas trices to portray is not always

true. Sve 2 First Report 226-27 (discussing the ways

post-compact pumping in Kansas could allect Colo-

rado). Complex modeling was required to support

Kansas’ claims in this case because of the unique

terms of Article TV-D of the Arkansas River Compact,

which the States had agreed to and had been approved

21

by Congress. See Aansas v. Colorado, 514 U.S. 673,

683 (1995). Therefore, even if Kansas as the com-

plaining State had to shoulder the burden of develop-

ing the evidence to prove its claim, that is no different

than the burden shouldered by other plaintiffs.

Awarding expert witness fees to States in exeess of

the limit in $ 1821(b) might have the consequence of

encouraging litigation by States in this Court rather

Lhan resolution of such disputes through negotiation

and compromise, as this Court has often counseled.

See Texas v. News Mexico, 462 U.S. 554, 575-76 (1983),

and cases cited therein.

In this case, both States developed modeling to

address Kansas’ claims. 2 First Report 229-30, 264-

64. Colorado agreed to adopt the H-I model in place of

iis own, but only afier the Kansas replacement ex-

perts had corrected some 16 coding crrers and inap-

propriate assumptions in the original H-I model that

had been pointed out by Colorado’s modeling expert,

which substantially reduced Kansas’ claim regarding

post-compact well pumping and resulted in the dis-

missal of Kansas’ claim regarding the Winter Water

Storage Program. 2 First Report 235-36, 238, 241,

245, 314-16, 327-29, 335. Under those circumstances,

Colorado’s adoption of the H-I model to determine

compact compliance should not be used as a reason Lo

award expert wilness fees as costs against Colorado

in excess of the limit in $ 1821(b). Otherwise, the

Court would establish a preeedent that would-make it

more difficult to get States to cooperate on technical

matters in the future, hardly a precedent consistent

22

with the Court's admonishments that States should

try to resolve disputes by negotiation rather than

litigation.

lil. CONCLUSION

The Special Master correctly determined that 28

U.S.C. § 1821(b) applies to the taxation o. expert

witness fees as costs in this case. Kansas’ exception

should be denied, and the Court should ac pt the

Special Master’s recommendations an. enter the

proposed Judgment and Decree.

Respectfully submitted,

JOHN W. SUTHERS

Attorney General of Colorado

Davm W. Roppins

Special Assistant Attorney General

Counsel of Record

DENNIS M. MONTGOMERY

Special Assistant Attorney General

Hin. & Ropers, P.C.

1441 — 18th Street, #100

Denver, Colorado 80202

Telephone: (303) 296-8 100

Attorneys for Defendant

State cot ( olorado

la

APPENDIX

Statutory Provisions Not Included in the Appendix

to the Brief in Support of Kansas’ Exception.

Title 28, U.S. Code

§ 1913. Court of appeals

The fees and costs to be charged and collected in

each court of appeals shall be prescribed from time to

time by the Judicial Conference of the United States.

Such fees and costs shall be reasonable and uniform

in all the circuits.

§ 1914. District court; filing and miscellaneous

fees; rules of court

(a) The clerk of each district court shall require

the parties instituting any civil action, suit or pro-

ceeding in such court, whether by original process,

removal or otherwise, to pay a filing fee of $340,

except that on application for a writ of habeas corpus

the filing fee shall be $5.

(b) The clerk shall collect from the parties such

additional fees only as are prescribed by the Judicial

Conference of the United States.

{c) Each district court by rule or standing order

may require advance payment of lees.