Amicus Curiae Brief — Kansas v. Nebraska and Colorado (No. 220126-ORG)

No. 126, Original

TS + ae 3:0 meer ame e eee

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1998

STATE OF KANSAS, PLAINTIFF

Vv.

STATE OF NEBRASKA

AND

STATE OF COLORADO

ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

SETH P. WAXMAN

Solicitor General

Counsel of Record

Lois J. SCHIFFER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor

General

ANDREW F. WALCH

EDWARD A. BOLING

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

TABLE OF CONTENTS

Page

TI ccsinssnieinsicetiiinsincinenleniiencicinmaibiiianiniihniitgiaiainidusinanniulesieabicimicaiio 1

A. The Republican River Basin ....2.............:cccsccsseseeeeseess 2

B. The compact approval process .............::ccccceseeseeeeeeeees 4

C. The Republican River Compact ....0.........:ccccccseeseeeee 5

D. Post-compact development .............:.:scssseeeceseeeecenes 8

E.. The current COMtrOVErBY ......-.-+.seseecserseensesesseesnesneensens 9

ROTI :sussicsiaiiachieiiasiessincsiaipetennineiiiialictiniiniesbiivinisitiianebiadisunsaibiioees 11

1. The complaint of Kansas alleges a controversy

that warrants the exercise of original

I ‘scianncnissecenetaiiasanedibennitigaeiniaiaiaitinaicnin 11

2. Before referring the matter to a Special Master,

this Court should resolve the threshold legal

issue of whether the Republican River Compact

restricts a State’s consumption of ground-

SOD sececcicnsscnicicrssintesesenaneisiptaipaneteinaheindsinaaaniniaeminieanssiiaiie 16

SE TIUNITIIN nsiccsicesistasssiiseihecibisnanisaeansianpiaehiaesiaiacneniadnniaubisiaiiaieitidains 20

TABLE OF AUTHORITIES

Cases:

Arizona v. California:

Be es TU RIED» cetinsiscciesinecrenseenisuenciianinitntoiiniaaniinntitieaiineslitaete 20

ED TR, BE CI wricrcetescestecsonessonsunshicssnninnnnmeninmtianianaes 12

Central R.R. v. Mayor & Alderman of Jersey City,

SD TR, GR cacti ccnainicscnseenssceiemninvinianeiaintsninnnnie 19

Kansas v. Colorado:

ris SE I eiktctcicinsenivininsciiicniscinsanisiinitainieiiianadiaiaiainiaicciesion 12

STE U.S. 107D (12GB) -.n22.000cccrcrersccsccocrecsncccccecsccssnsessncsssssnscees 12,18

RG CET, Ge Ce erncerceccssentencncsemsiccieinnnisncinnneneinnnes 11, 12, 19

BED G. Ce. CU CTD ccceecctenccnncscnvseseciennctvesntnsmimncsvicennsmecinnsce 12

Mississippi v. Louisiana, 506 U.S. 73 (1992) .......... 11, 12, 15

(1)

I]

Cases—Continued: Page

Nebraska v. Wyoming:

ee a I» fsiidi lintiiesicalaciabsaincinenibipastsicbapemeanagiiinameagiia 12

I i 12, 16, 18, 19

ee ee IID ccsipieacttissiesianscirenaisiputesibiiecsi> “chines 16-17

507 U.S. 584 (1998) ..........sccccsscsrsesssesseeeees | -didldeaniiiaasiiasaialit 15

a I Gnpiiiceltcieniniconinnnsstincicsanibiensocesnsbininntes 1], 12, 15, 18

New Jersey v. New York:

ee ia STEED aiisiciidinhscensisinsipciliteeiscahininsciaibiniadbaiibiaaesaien 16

Se MUTED caitiessesiteiccnseptancctictninnssisestintstaisteciantanedenyeaniots 17

a es SIE siicaieisinscnscnsinnitinaciuicibbictibinaalipsaesaubabsanin 11, 19, 20

Oklahoma v. New Mexico, 501 U.S. 221 (1991) ......--.0.. 19, 20

Texas v. New Mezico:

462 U.S. 564 (1988) 0.0... -ceeceecceeeeeneeeeeeees 11, 12, 16, 18, 19, 20

Be IG SNEED akaiicseisescksensnnisesiccncnceiaieniiensesnitapieaniadiinplanibeds 19

United States v. Alaska:

| __) SEAN SM on teenie teeae SCN anit rece 17, 20

I oo salesseannienisaineeninsaboneaiitine 17

ee A, ITED sicscinnsensintnceaieanindentapitininsiicaaeedecnsinenintinasaiaiedion 17

United States v. California, 332 U.S. 19 (1947) ............... 17

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

Weiland v. Pioneer Irrigation Co., 259 U.S. 488

SED <cebsscditansalasseaes daibiaiciddaaeiaalighaaniviipesiindiiesumansisaliiimeriies 7

Wyoming v. Colorado:

ans SN ic cca cipeaelbenhndiehioanineeiaieion 12

Se Ae CEN IIIT: x cschinessestinbicsainacsiacsaniniidcslciipdenveneepiesiinbdiainenesoen 15

Constitution, statutes and rules:

U.S. Const.:

Art. I, § 10, Cl. 3 (Compact Clause) ............ccccseeseeseeeeeeeeee 4,5

FR a ae es Ge Ae ticte adn sneicsdenicinsesebeiitintacaninteiiecninnineiniii 11

Act of Aug. 18, 1941, ch. 377, 55 Stat. 646.000. cece 3

Act of Aug. 4, 1942, ch. 545, 56 Stat. 736 .........-:..cceceeseeseeeees 5

Flood Control Act of 1944, ch. 665, § 9, 58 Stat. 891 ........... 8

Il

Statutes and rules—Continued: Page

Republican River Compact (Act of May 26, 1943), ch. 104,

ck Pee E RICE Caro ESN PRIA TTA ONE RAE passim, la

PT Br piscisetesicsenieleibhieianinsdineelliddsenbnsbicsinbliuiiia theta iet a 5-6, 2a

ce Oe NT AD ERLE NAC ee MS ATES 6, 3a

oe bc ce ne NE ETON ER ADESSO A OCT TOR 1

NG ITE, suiniaietibsiaiiniciatiatiaiinecintdcs acelin 6, 4a-5a

PA Mr * sed diatesihhalicistutiainncbieiiunsiiasabbiaticeiiait aie. 6, 7, 14, 5a-7a

aah Ser Ree RSA ATS SCO ee ASME EASE BP sie 7, 7a

ga Bech feat 2 Pe INSEE OTS, Eee ON Ae pa 7, Ta-8a

Fe _ GRE REESN DE Mr ICN AT CRSEEN ete 7, 9, 10, 8a-9a

IAG “ssttiedinbirviiemnaticondhiarsagabdeanha TalebonasbietiteCicainciai et teach 7, Ga-10a

IEEE eee saan eae oe Le Note T RN 7,8, 10a-lla

tee oh, ASANTE SSE Ce tt Se OLY COI 11

Colo. Rev. Stat. Ann. §§ 37-67-101 et seg. (1990) -.occceccecoseoe. 5

Kan. Stat. Ann. § 828-518 (1991) oo... eccccccssscecessssssesececerseeseee 5

Neb. Rev. Stat., Vol. 2a, App. 1-106 (1995) oo... cceceecccceseee. 5

I US 17

I SR WI sahara pachncseeensiiseinilichitiesiiticticiaaddi dat in i 17

Miscellaneous:

Bureau of Reclamation, U.S. Dept. of Interior:

Project Investigations Report No. 41 (1940) ...ccc.cecesseceese. 3

Resource Management Assessment: Republican

gk RR ae a Oe 2,8, 13

Committee on Procedure and Computation

Of Annual Virgin Water Supply, Formulas for the

Computation of Annual Virgin Water Supply

a Re a aa Oe aa 9, 10, 16

A A ia 3

87 Cong. Rec. (1941):

EE SEAL Ene aR Lk PE PSS 4

Re aN sehashdnesiliinnsiicansncciniceiusitcannictalediiceaticn aa 4

88 Cong. Rec. (1942):

RSE RIE Tate OTe mote ROT ARON Toe 4

I ID taiaidliintechinnieistedasctiapncrelitteadianee decadent eek 4

RES eens Des AAO) tnd ee Rates Sh eR Ea, ee 4

89 Cong. Rec. (1943):

Ss INIUTTS - atiilesndiaisimatinsmunsinieinietseniaapeiaecset tea 5

Miscellaneous—Continued: Page

A PIU - ssecusncinscscbssainissebinsiaiapeimsnnnesineliccasiniéasnabthedanisianiiuiiiamines 5

TERI scctsnicssnsestnsicibaeadiliiiabaiidiiialiiaiiedadinetddiembiinidiabtataemesneniciiuion 5

First Report of the Special Master in Kansas v.

Colorado, No. 106, Original, Vols. I - IV (1994) ..0.0.0........ 18

Flood Control in the Basin of the Republican River:

Hearing on S. 649 Before the Senate Comm. on

Irrigation and Reclamation, 78th Cong., 1st Sess.

TEE sescscesivacnteiseasinciinniineiacibilaibinibidaaieintataiinbaaaatbisnasdusiininssiin 5

H.R. 5945, 77th Cong., Ist Sess. (1941) o.oo. cccccseseeseseeeeee 4

H.R. 2482, 78th Cong., Ist Sess. (1943) oocccccccccccescseseeceeeeees 5

H.R. 1679, 78th Cong., Ist Sess. (1943) oo... .ccccesescesesesseeeseee 5

H.R. Conf. Rep. No. 1878, 77th Cong., 2d Sess. (1942) ...... 4

H.R. Doc. No. 195, 73d Cong., 2d Sess, (1934) 0... 3

H.R. Doc. No. 842, 76th Cong., 3d Sess. (1940) oc. 2-3

H.R. Doc. No. 690, 77th Cong., 2d Sess. (1942) oo... 4

H.R. Rep. No. 1380, 77th Cong., 1st Sess. (1941) .0.0000000...... 4

H.R. Rep. No. 375, 78th Cong., Ist Sess. (1943)... 5

H.R. Rep. No. 2707, 76th Cong., 2d Sess. (1940) ........... eis 3

H.R.J. Res. 406, 76th Cong., 3d Sess. (1940) ......cccccccceceseee 3

G. Jensen, Suit Has Hurdles, Jess Says, Kearney

EO IIT TITTLE ‘tesscchcedidiienccheutinebidieatadumeddadieiiiridintdianianiins 18

Letter from First Ass’t Attorney Gen. of Colo. to

the Chief Deputy Clerk of the Court (July 28,

ISDTUTEET seniislecnecheuieteamtesdeieiaanamaenichiteiiiitiabiisanadaid inh 2

Letter to Special Master Owen Olpin (Oct. 27, 1998) ........ 19

2A J.W. Moore, Moore’s Federal Practice (2d ed.

STII <siseciceainnceihicicesdinhneiiniaiiceaitiiaiti i 17

Republican River Compact: Hearings on H.R. 4647

and H.R. 5945 Before the House Comm. on

Irrigation and Reclamation, 77th Cong., 1st Sess.

CSIP siciisiansienianeneneshdnthcbbaenisdasidguanianldanninasininsbiecetabesebsesiaties 4

Republican River Compact: Hearings on H.R. 1679

and H.R. 2482 Before the Howse Comm. on

Irrigation and Reclamation, 78th Cong., Ist Sess.

CEUTTED ssicscessinssericisisidensstatininibhaniinaeddindabedatininidinialsinatiesiinedtatettiinsiensicin 5

RRCA, First Annual Report for the Year 1960

ry: Siig MPU sinsiisigicrssniiacabnisieniittncstpsbiasanttahioninaicieabadtinsichinaniaaioe 9,10

V

Miscellaneous—Continued: Page

RRCA, Formulas for the Computation of Annual

Virgin Water Supply and Consumptive Use,

August 19, 1982 (rev. June, 1990) ooceccccccccccccceccececceseoceeeee-.. 9,10

S. 1361, 77th Cong., Ist Sess. (1941) ....ccccccscsscsscssssecoesecseseeees 4

S. 649, 78th Cong., Ist Sess. (1948) ......ccccccccssssseseesecesssesesssee 5

S. Doe. No. 247, 78th Cong., 2d Sess. (1944) ooo.cccccccccccesseeeee. 8

S. Rep. No. 841, 77th Cong., Ist Sess. (1941) ooocccccccccccccccsess 4

S. Rep. No. 152, 78th Cong., 1st Sess. (1943) -..ccccccccsccsssssceeee 5

5A C.A. Wright & A.R. Miller, Federal Practice and

BPN UNNTNT TNIIIIIDY sicnsiccesasindidineseninsssdesutiidicdbbiies iia seins 17

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1998

No. 126, ORIGINAL

STATE OF KANSAS, PLAINTIFF

Vv.

STATE OF NEBRASKA

AND

STATE OF COLORADO

ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is filed in response to the order of this Court

inviting the Solicitor General to express the views of the

United States.

STATEMENT

The State of Kansas seeks leave to commence an original

action to enforce its rights under the Republican River Com-

pact, which was approved by Congress in the Act of May 26,

1943, ch. 104, 57 Stat. 86. See Add. la-13a. The Compact

allocates the “virgin water supply” of the Republican River

Basin among the States of Colorado, Kansas, and Nebraska.

See Compact Arts. II-IV (Add. 3a-7a). Kansas alleges that

Nebraska has exceeded its Compact allocation by allowing

pumping and consumption of groundwater that should be

included as part of the allocated water supply. See Compl.

{ 7; Br. in Support of Compl. 2. Nebraska responds that this

Court should deny Kansas’s motion for leave to file a com-

plaint because Kansas has failed to show that Nebraska’s

actions have violated Kansas’s rights or caused Kansas in-

jury. See Br. in Opp. 5. Kansas does not seek relief against

(1)

2

Colorado, and Colorado takes no position on Kansas’s motion

for leave to file a complaint. See Kan. Br. in Support of

Compl. 2; Letter from First Ass’t Attorney Gen. of Colo. to

the Chief Deputy Clerk of the Court (July 28, 1998).

A. The Republican River Basin

The Republican River Basin is a 24,900-square-mile

watershed, approximately 430 miles in length, that encom-

passes parts of northeastern Colorado (7,700 square miles),

southwestern Nebraska (9,700 square miles), and northern

Kansas (7,500 square miles). The Basin is drained by the

Republican River, which is formed by the junction of two

streams that originate in Colorado, the Arikaree and North

Fork Republican Rivers. From that originating point, near

Haigler, Nebraska, the Republican River flows easterly

through Nebraska and then southeasterly to Junction City,

Kansas, where it joins the Smoky Hill River to form the

Kansas River. The Republican River Basin also includes

numerous smaller streams that flow into the Republican

River. The Basin, which is part of the Great Plains, is

sparsely populated. It contains fertile farmland and typically

receives from 18 to 30 inches of precipitation per year. See

Bureau of Reclamation, U.S. Dep’t of Interior, Resource

Management Assessment: Republican River Basin 3-6, 43,

44-48 (July 1996) (A copy of this report has been lodged with

the Clerk of the Court.)

During the 1930s, the United States, as well as the States

of Colorado, Kansas, and Nebraska, developed an interest in

harnessing the water resources of the Republican River

Basin. The Basin had experienced an extended drought, in-

terrupted in 1935 by a deadly and destructive flood. In light

of those experiences, the federal and state governments

examined whether the Republican River’s spring flows could

be impounded in reservoirs for flood control and released in

the late summer and fall for irrigation. See H.R. Doc. No.

842, 76th Cong., 3d Sess. (1940) (Corp of Engineers pre-

3

liminary examination and survey of Republican River); see

also H.R. Doc. No. 195, 73d Cong., 2d Sess. 158-186 (1934)

(Corps of Engineers preliminary examination and survey of

the Kansas River, discussing irrigation potential in the

Republican River Basin). Based on the Corps of Engineers’

recommendations in House Document No. 842, Congress

authorized appropriations to construct the Harlan County

Reservoir, in Nebraska, for flood control purposes. See Act

of Aug. 18, 1941, ch. 377, 55 Stat. 646.

The Interior Department’s Bureau of Reclamation, which

has primary responsibility for irrigation projects, also ex-

amined the Republican River Basin, relying in part on the

Corps’ examination set forth in House Document No. 195,

supra. See Bureau of Reclamation, U.S. Dep’t of Interior,

Project Investigations Report No. 41, at 1-2 (1940). The

Bureau concluded that federal irrigation projects were

feasible. Id. at A-D (Synopsis). It indicated, however, that

those projects should not be constructed until the three

States had resolved the question of interstate allocation of

the Basin’s water resources. /d. at 1 (“To avoid expensive

litigation as a result of possible conflicting uses of water in

the various states, further developments for irrigation

should be preceded by a three-state compact or other similar

agreement on the use of water.”). The States of Colorado,

Kansas, and Nebraska, which had been discussing the

possibility of an interstate compact for a number of years,

thereafter entered into negotiations to formulate an

interstate compact.’

! The States initially sought congressional authorization to enter into a

compact before they had negotiated its terms. See H.R.J. Res. 406, 76th

Cong., 3d Sess. (1940); see also 86 Cong. Rec. 58 (1940) (remarks of Rep.

Curtis). The Department of War objected on the ground that Congress

should not give its consent to a compact without knowing its content, and

the House Committee on Flood Control responded by amending House

Joint Resolution 406 to require congressional approval before the compact

4

B. The Compact Approval Process

In 1941, the States completed their negotiations and rati-

fied a proposed compact, which was then submitted to Con-

gress for approval in accordance with the Compact Clause of

the Constitution, U.S. Const. Art. I, § 10, Cl. 3. See S. 1361,

77th Cong., Ist Sess. (1941); H.R. 5945, 77th Cong., 1st Sess.

(1941); S. Rep. No. 841, 77th Cong., Ist Sess. (1941). The De-

partment of the Interior and the Federal Power Administra-

tion objected to the compact primarily because it contained

language curtailing federal jurisdiction over the Republican

River. See Republican River Compact: Hearings on H.R.

4647 and H.R. 5945 Before the House Comm. on Irrigation

and Reclamation, 77th Cong., 1st Sess. (1941).

The House Committee on Irrigation and Reclamation

amended the House bill in response to the federal agencies’

objections, H.R. Rep. No. 1380, 77th Cong., Ist Sess. (1941),

but the Senate rejected the House amendments, 87 Cong.

Rec. 9606-9623 (1941). The Senate’s proposed legislation

prevailed in conference, and the Senate and the House

approved the conference proposal. See H.R. Conf. Rep. No.

1878, 77th Cong., 2d Sess. (1942); 88 Cong. Rec. 2408-2409

(1942); 88 Cong. Rec. 2813-2814 (1942). The President, how-

ever, vetoed the bill on the basis of the federal agencies’

objections. See 88 Cong. Rec. 3285-3286 (1942), H.R. Doc.

No. 690, 77th Cong., 2d Sess. (1942) (veto message). The

President explained that he “would be glad to approve a bill,

which, in assenting to the compact, specifically reserves to

the United States all of the rights and responsibilities which

it now has in the use and control of the waters of the basin.”

H.R. No. Doc. 690, supra, at 2.

could take effect, see H.R. Rep. No. 2707, 76th Cong., 3d Sess. (1940).

That resolution, however, did not pass, and the States entered into

negotiations without advance congressional authorization or the direct

participation of the federal government. See 87 Cong. Rec. A2179 (1941)

(remarks of Rep. Curtis).

oD

Following the President’s veto, Congress enacted legis-

lation authorizing state commissioners to conduct further

compact negotiations and providing for participation by a

federal representative. See Act of Aug. 4, 1942, ch. 545, 56

Stat. 736. The state commissioners and the federal repre-

sentative completed their negotiations on December 31,

1942, and the state legislatures of Colorado, Kansas, and

Nebraska promptly ratified the proposed compact. See Colo.

Rev. Stat. Ann. §§ 37-67-101 et seg. (1990); Kan. Stat. Ann.

§ 82a-518 (1991); Neb. Rev. Stat. Vol. 2a, App. 1-106 (1995).

The States then submitted the compact for congressional]

approval in accordance with the Compact Clause and the Act

of Aug. 4, 1942. Congress held hearings, considered reports

favoring the proposed compact, and enacted legislation

granting congressional approval, which the President signed.

Act of May 26, 1943, ch. 104, 57 Stat. 86.”

C. The Republican River Compact

The Republican River Compact consists of eleven articles

that set out a mechanism for dividing the water supply of the

Republican River Basin and address issues arising from the

prescribed allocation.

Article I identifies the purposes of the Compact as follows:

(1) “to provide for the most efficient use of the waters of the

Republican River Basin”; (2) “to provide for an equitable

division of such waters”; (3) “to remove all causes, present

and future, which might lead to controversies”; (4) “to

2 See S. 649, 78th Cong., Ist Sess. (1943); H.R. 1679, 78th Cong., Ist

Sess. (1943); H.R. 2482, 78th Cong., Ist Sess. (1943); Flood Control in the

Basin of the Republican River: Hearing on S. 649 Before the Senate

Comm. on Irrigation and Reclamation, 78th Cong., Ist Sess. (1943); Re-

publican River Compact: Hearings on H.R. 1679 and H.R. 2482 Before

the House Comm. on Irrigation and Reclamation, 78th Cong., 1st Sess.

(1943); S. Rep. No. 152, 78th Cong., Ist Sess. (1943); H.R. Rep. No. 375,

7&th Cong., Ist Sess. (1943); 89 Cong. Rec. No. 3549-3551 (1943) (Senate

passage); id. at 4534-4536 (House passage); id. at 4907 (Presidential

approval).

6

promote interstate comity”; (5) “to recognize that the most

efficient utilization of the waters within the Basin is for

beneficial consumptive use”; and (6) “to promote joint action

by the States and the United States in the efficient use of

water and the control of destructive floods.” Add. 2a.

Article II clarifies the meaning of relevant terms. It

defines the “Basin” as “all the area in Colorado, Kansas, and

Nebraska, which is naturally drained by the Republican

River, and its tributaries, to its junction with the Smoky Hill

River in Kansas,” and it incorporates by reference a map

showing the Basin. Add. 3a. Article II defines the “Virgin

Water Supply” to be “the water supply within the Basin un-

depleted by the activities of man.” Add. 3a. And it corre-

spondingly defines “Beneficial Consumptive Use” to be “that

use by which the water supply of the Basin is consumed

through the activities of man.” Add. 3a.

Article III next specifies the “computed average annual

virgin water supply” of a series of specific drainage areas

within the Basin, which in aggregate amount to a total

estimated water supply of 478,900 acre-feet per year. Add.

4a. Those computed averages, expressed in acre-feet of

water, represent the historic virgin water supply originating

above “the lowest crossing of the [Republican River] at the

Nebraska-Kansas state line.” Add. 4a. The Compact relies

on those historic water supply averages as the basis for

allocating future supplies among the States. Article III

recognizes, however, that year-to-year flows may vary, and

it accordingly states that “[s]hould the future computed

virgin water supply of any source vary more than ten (10)

per cent from the virgin water supply as hereinabove set

forth, the allocations hereinafter made from such source shall

be increased or decreased” proportionately. Add. 4a-5a.

Article IV sets out the allocation to each State, expressed

in acre-feet per year, for each of the drainage areas that

Article III identifies. Add 5a-7a. Article IV allocates the

entire estimated water supply set forth in Article III, giving

7

Colorado an aggregate of 54,100 acre-feet per year (Add. 5a),

Kansas an aggregate of 190,300 acre-feet per year (Add. 5a-

6a), and Nebraska an aggregate of 234,500 acre-feet per year

(Add. 6a-7a). In addition, Article IV recognizes that Kansas

is entitled to “the entire water supply originating in the

Basin downstream from the lowest crossing of the river at

the Nebraska-Kansas state line.” Add. 6a.

Articles V through IX set forth various rights and obliga-

tions relating to the allocation. Article V recognizes the con-

tinuing vitality of a prior judgment of this Court, Weiland v.

Pioneer Irrigation Co., 259 U.S. 498 (1922), which involved a

dispute between Colorado and a Nebraska irrigation district

over the district’s diversion of water in Colorado for use in

Nebraska. See Add. 7a. Articles VI through VIII allow a

downstream State (or its citizens) to construct water storage

facilities in an upstream State, provided that certain condi-

tions are observed. See Add. 7a-8a. Article IX obligates the

States to administer the Compact through appropriate offi-

cials and “to collect and correlate through such officials the

data necessary for the proper administration of the provi-

sions of this compact.” Add. 8a-9a. It also provides that

those officials “may, by unanimous action, adopt rules and

regulations consistent with the provisions of this compact,”

and it directs the pertinent federal agencies to assist state

officials in the collection and correlation of data. Add. 9a.

Articles X and XI address issues of federal authority that

had prompted the President’s veto of the previous compact

proposal. Article X states that nothing in the Compact shall

(a) impair federal rights, power, or jurisdiction over waters

of the Basin; (b) subject the United States to state taxes or

require the United States to reimburse the States for lost

tax revenues resulting from federal water development pro-

jects; and (c) subject any property of the United States to

state law that would not apply in the absence of the Com-

pact. Add. 9a-10a. Article XI provides, in essence, that (a)

any beneficial consumptive use of the United States within a

8

State shall be charged against the State’s compact allocation;

(b) when exercising its paramount powers, the United States

shal] recognize, to the extent consistent with the best utiliza-

tion of the waters for multiple purposes, that beneficial con-

sumptive use is of paramount importance to the develop-

ment of the Basin; and (c) the United States will respect

valid, pre-existing, beneficial consumptive uses. Add. 10a-

lla.

D. Post-Compact Development

After approving the Compact, Congress authorized a sys-

tem of federal water development and management projects

as part of the Missouri River Basin Development Program.

See Flood Control Act of 1944, ch. 665, § 9, 58 Stat. 891. This

Program, also known as the Pick-Sloan Plan, authorizes the

Army Corps of Engineers and the Bureau of Reclamation to

construct and operate a coordinated system of reservoirs for

multiple purposes, including irrigation, flood control, power

development, fish and wildlife protection, and recreation.

See S. Doc. No. 247, 78th Cong., 2d Sess. (1944).

Between 1945 and 1964, the United States constructed

nine federal reservoirs in the Republican River Basin. The

Corps of Engineers completed the previously authorized

Harlan County Reservoir in Nebraska (see p. 3, supra) and

the Milford Reservoir in Kansas. The Bureau of Reclamation

established four water resource development divisions,

which include seven reservoirs in Kansas and Nebraska.

The Bureau’s projects, operated in conjunction with the

Corps’ Harlan County facilities, provide water to six irriga-

tion districts and service 136,528 acres of farmland in the

Republican River Basin. The Corps’ Harlan County and Mil-

ford projects also support a variety of other purposes,

including flood control, recreation, and fish and wildlife

needs. See Resource Management Assessment: Republican

River Basin, supra, at 4-5, 13-23.

9

E. The Current Controversy

The Republican River Compact imposes limitations on the

quantity of water that Colorado and Nebraska may divert

from the Republican River and its tributaries, based on an

apportionment of the “virgin water supply.” In accordance

with Article IX of the Compact, the States have designated

officials to administer the Compact’s allocation limits. Begin-

ning in 1959, the States each appointed a representative to a

three-member administrative body, designated the Republi-

can River Compact Administration (RRCA), to compute the

Basin’s annual “virgin water supply,” which would in turn

allow the States to determine, retrospectively, whether each

State had stayed within its annual allocation. See RRCA,

First Annual Report for the Year 1960 (April 4, 1961). The

RRCA has since published and updated formulas for

computing both the virgin water supply and consumptive

use. See RRCA, Formulas for the Computation of Annual

Virgin Water Supply and Consumptive Use, August 19,

1982 (rev. June 1990).

Since 1959, the States have debated whether groundwater

usage should be included in determining whether a State has

exceeded its allocation. Kansas has asserted that ground-

water usage should be included to the extent that ground-

water development affects surface flow by syphoning water

from the Republican River or its tributaries or by otherwise

reducing the water that would be available for diversion

from the sources identified in the Compact. As part of its

First Annual Report, the RRCA elected to include in its

calculations groundwater that is pumped “from the alluvium

along the stream channels.” Committee on Procedure and

Computation of Annual Virgin Water Supply, Formulas for

the Computation of Annual Virgin Water Supply 3 (Apr. 4,

1961). The RRCA decided, however, not to include pumping

from upland areas known as “table-lands.” It concluded that

“(tlhe determination of the effect of pumping by ‘table-land’

10

wells on the flows of the streams in the Republican River

Basin must await considerably more research and data

regarding the character of the ground-water aquifers and

the behavior of ground-water flow before even approximate

information is available as to the monthly or annual effects

on stream flows.” Ibid.

Since publishing its First Annual Report, the RRCA has

been unable to make further progress on the appropriate

treatment of groundwater under the Compact. In recent

years, Kansas and Nebraska have strongly disagreed on the

issue. Because the three-member RRCA can adopt regula-

tions only through “unanimous action,” Compact Article IX

(Add.9a), the RRCA has not resolved the dispute and has

retained, virtually verbatim, the statement on groundwater

set forth in the 1959 annual report. See Formulas for the

Computation of Annual Virgin Water Supply and Con-

sumptive Use, August 19, 1982, supra, at 7. Indeed, appar-

ently as a result of this dispute between Kansas and

Nebraska, the RRCA has ceased to calculate the virgin

water supply and state compliance with allocation limits.

Compare Nebr. Br. in Opp. 16-17 with Kan. Reply Br. 7-8.

Kansas now seeks relief from this Court. It asserts that

Nebraska has violated the Compact by “allowing the pro-

liferation and use of thousands of wells hydraulically con-

nected to the Republican River and its tributaries,” which

has “resulted in the appropriation by the State of Nebraska

of more than its allocated equitable share of the waters of

the Republican River” and has “deprived the State of

Kansas of its full entitlement under the Compact.” Compl.

{ 7; see Br. in Support of Compl. 12-14. Nebraska argues

that the Court should not exercise jurisdiction over this

matter because Kansas has failed to show that Nebraska's

alleged actions have injured Kansas, Br. in Opp. 9-16, and

because Kansas may seek relief through alternative means,

id. at 17-21. Nebraska additionally asserts that “ground-

11

water is not governed by the Compact.” Id. at 10; see also

id. at 20.

DISCUSSION

The United States submits that Kansas should be granted

leave to file its complaint. Kansas alleges an interstate dis-

pute of sufficient importance to warrant this Court’s exer-

cise of its original jurisdiction, and there is no other forum in

which the controversy practicably can be resolved. The

United States additionally suggests that this Court provide

a mechanism for deciding a potentially dispositive threshold

legal issue—whether the Republican River Compact re-

stricts a State’s consumption of groundwater—before refer-

ring the matter to a Special Master. Resolution of that legal

issue, which could be placed before the Court through a

motion to dismiss, would greatly facilitate the dispositior of

a controversy that experience suggests might consume many

years of litigation and many millions of dollars in expenses.

1. The Complaint Of Kansas Alleges A Controversy That

Warrants The Exercise Of Original Jurisdiction

This Court has original and exclusive jurisdiction over a

judicial case or controversy between States. See U.S. Const.

Art. IIT, § 2, Cl. 2; 28 U.S.C. 1251(a). That jurisdiction “ex-

tends to a suit by one State to enforce its compact with

another State or to declare rights under a compact.” Texas

v. New Mexico, 462 U.S. 554, 567 (1983); see, e.g., New Jersey

v. New York, 118 S. Ct. 1726 (1998); Kansas v. Colorado, 514

U.S. 673 (1995); Virginia v. West Virginia, 206 U.S. 290, 317-

319 (1907). Nevertheless, the Court has determined that its

exercise of original jurisdiction is “obligatory only in appro-

priate cases.” Mississippi v. Louisiana, 506 U.S. 73, 76

(1992); see Nebraska v. Wyoming, 515 U.S. 1, 8 (1995); Texas

v. New Mexico, 462 U.S. at 570. In deciding whether to

grant leave to file a complaint in a dispute arising under the

Court’s exclusive original jurisdiction, the Court examines

“the nature of the interest of the complaining State,”

12

focusing on the “seriousness and dignity of the claim.”

Mississipm v. Louisiana, 506 U.S. at 77 (internal quotations

and citations omitted). The Court also considers “the avail-

ability of an alternative forum in which the issue tendered

can be resolved.” Jbid. Applying those standards, the

United States concludes that the complaint of Kansas pre-

sents a matter warranting the exercise of original jurisdic-

tion.

a. In claiming that Nebraska is depriving Kansas of its

lawful share of the water of an interstate stream, Kansas

asserts a substantial sovereign interest that falls squarely

within the traditional scope of this Court’s original jurisdic-

tion. See, e.g., Texas v. New Mexico, 462 U.S. at 567; Ari-

zona v. California, 373 U.S. 546 (1963); Nebraska v. Wyo-

ming, 325 U.S. 589 (1945); Wyoming v. Colorado, 298 U.S.

573 (1936); Kansas v. Colorado, 185 U.S. 125 (1902). Indeed,

this Court has granted Kansas and Nebraska each leave to

file separate original actions, which are currently pending on

this Court’s original docket, raising comparable claims. See

Kansas v. Colorado, 475 U.S. 1079 (1986) (No. 105, Original);

Nebraska v. Wyoming, 479 U.S. 1051 (1987) (No. 108, Origi-

nal). Kansas’s claims respecting the Republican River are of

similar “seriousness and dignity.” Mississippi, 506 U.S. at

77."

Nebraska nevertheless opposes Kansas’s motion for leave

to file a complaint on the ground that Nebraska’s claimed

3 In Kansas v. Colorado, this Court ruled that Colorado has unlaw-

fully consumed groundwater associated with the Arkansas River, south of

the Republican River Basin, in violation of the Arkansas River Compact.

See Kansas v. Colorado, 514 U.S. 673 (1995). The matter is pending be-

fore a Special Master on the question of remedy. See 118 S. Ct. 849 (1998).

In Nebraska v. Wyoming, Nebraska asserts, among other things, that

Wyoming has unlawfully consumed groundwater associated with the

North Platte River, north of the Republican River Basin, in violation of

this Court’s North Platte Decree. See Nebraska v. Wyoming, 515 U.S. 1.

That suit has not yet gone to trial, but the parties have settled a number

of the issues apart from the issue of groundwater consumption.

13

violations and Kansas’s alleged injuries are not sufficiently

demonstrated or serious to justify the exercise of original

jurisdiction. Br. in Opp. 7-17. Nebraska specifically argues

that the records of the RRCA indicate that, “over the 55-

year history of the Compact, Kansas failed to receive its

total allocation of water only one time, in the drought year of

1992,” id. at 11, and that, from 1992 through 1995, “Nebraska

consumed less than its allocation, even if groundwater use is

included as Kansas alleges,” id. at 15. See also id. at Al-A5.

The United States submits that Nebraska’s reliance on

the RRCA records is misplaced and does not provide an

adequate basis for denying Kansas leave to file a complaint.

Kansas and Nebraska agree that the Republican River

Compact places enforceable limitations on the compacting

States’ consumption of water that is directly diverted from

streams within the Basin. But Kansas, unlike Nebraska,

interprets the Compact also to place enforceable limitations

on the consumption of water that is indirectly diverted from

those streams through pumping of groundwater that is

“hydraulically connected to the Republican River and its

tributaries” in the sense that the pumping reduces surface

flow. See Kan. Compl. 4 7; Kan. Br. in Support of Compl. 2;

compare Neb. Br. in Opp. 10, 20. The gravamen of Kansas’s

complaint is that Nebraska is violating the Compact

limitations because Nebraska diverts both surface water and

groundwater, and Nebraska does not take into full account

the full effects of consuming groundwater in reducing sur-

face flows. See Kansas Compl. ¢ 7.‘

4 Kansas’s allegation that Nebraska’s groundwater pumping is, in fact,

depleting the surface flow of the Republican River is not without

foundation. The Bureau of Reclamation’s 1996 Resource Management

Assessment: Republican River Basin states that “the area’s overall water

supply has decreased in part because groundwater development in the

Republican River Basin has increased.” /d. at 14. See generally id. at

Attachment B, Part V (Groundwater Research Management Assessment).

The Bureau has informed us, however, that it has not definitively deter-

14

Nebraska cannot rely on the RRCA’s past water supply

and consumption records to show that Kansas has suffered

no substantial injury because those records rely on formulas

that take into account consumption of only groundwater

pumped from the alluvium of the Republican River and its

tributaries, and not consumption of all groundwater that

might affect the surface flow. See pp. 9-10, supra. The in-

clusion of non-alluvial groundwater would increase the

computed virgin water supply and potentially affect each

State’s allocation. Nebraska’s derivative calculations are

therefore uninformative on the matter that Kansas has

placed at issue: whether Nebraska is indirectly diverting

surface flow, in excess of its Compact allocation, by pumping

non-alluvial groundwater.”

At bottom, Nebraska’s resort to RRCA records fails to

confront the crux of Kansas’s argument. The RRCA’s cur-

rent methodology expressly does not take into account the

diversion of all groundwater that may reduce surface flow.

If Kansas is correct that the Compact limits such diversions,

then Nebraska’s refusal to observe that limitation would

result in a violation of the Compact. This issue presents a

matter of sufficient seriousness and dignity to warrant exer-

cise of this Court’s original jurisdiction.®

mined whether or to what extent groundwater pumping depletes the

specific water supply sources identified in the Compact.

5 Nebraska takes the position that the Compact does not impose any

limitations on its pumping of groundwater, Br. in Opp. 10, 20, and it

apparently treats the RRCA’s inclusion of alluvial groundwater as going

beyond the Compact’s limitations. Furthermore, Nebraska seems to treat

alluvial groundwater as the only form of groundwater that might affect

surface flow. Nebraska’s assertions (Br. in Opp. 11-12, 15) that RRCA

records include “groundwater usage” are correct only if one neglects all

non-ailuvial groundwater consumption, which is the precise matter that

concerns Kansas. See Kan. Reply Br. 2, 4-5.

68 Nebraska makes a number of secondary arguments that Kansas has

failed to demonstrate injury. Those arguments, however, are also unper-

suasive. For example, Nebraska assumes (Br. in Opp. 10-12) that Kansas

15

b. Nebraska’s suggestion that Kansas might resolve this

dispute through means other than an original action (Br. in

Opp. 17-21) is also unpersuasive. Kansas and Nebraska dis-

agree, at a fundamental level, on the meaning of the Republi-

can River Compact, and none of the alternative fora that

Nebraska identifies is capable of resolving that interstate

dispute. Nebraska contends, for example, that Kansas might

achieve its objectives if Kansas citizens or local water dis-

tricts commence district court actions against Nebraska offi-

cials or citizens, or, alternatively, if Kansas builds upstream

reservoirs to augment its water supply. Br. in Opp. 18-19.

Kansas has brought this action, however, to assert its own

sovereign rights, vis-a-vis Nebraska, arising from an inter-

state compact. The actions that Nebraska proposes would in

no sense provide a forum for Kansas to assert its Compact

rights. See Mississippi v. Louisiana, 506 U.S. at 76-78; cf.

Nebraska v. Wyoming, 515 U.S. at 20-21.

Nebraska also suggests further negotiations and media-

tion. Br. in Opp. 19-21. As a general matter, we agree that

this Court should consider whether the States have attempt-

cannot demonstrate injury if Kansas has received its full aggregate water

allocation under the Compact. The Compact, however, allocates water on a

source-by-source basis, see Art. IV (Add. 5a-7a), and Kansas should

therefore be entitled to demand that Nebraska adhere to its allocation

from specific sources, even if Kansas receives an aggregate water supply

equal to the sum of all of the sources. Nebraska also makes the un-

warranted assumption (Br. in Opp. 12-13) that Kansas does not suffer an

injury under the Compact unless it can show that it would consume the

water that it is denied. The Compact creates a right to receive the water

that is promised, and Kansas may sue to enforce that right. See Nebraska

v. Wyoming, 507 U.S. 584, 592 (1993); Wyoming v. Colorado, 309 U.S. 572,

581 (1940). Nebraska additionally argues that Kansas should not be

granted leave to file a complaint until it comes forward with a more

specific showing of the grou..dwater depletions. Br. in Opp. 9-10, 15-16.

That contention, however, is inconsistent with this Court’s practice in

comparable original actions, including Nebraska’s suit against Wyoming,

which also alleges groundwater depletions in general terms. See Ne-

braska v. Wyoming, 515 US. at 6.

16

ed to resolve their dispute through negotiation or alternative

dispute resolution techniques as an important factor bearing

on whether to exercise its original jurisdiction. But in this

case, it is clear that Kansas and Nebraska have attempted

consensual resolution and have deadlocked over the thres-

hold question of whether the Compact limits groundwater

pumping. Indeed, the deadlock over that issue has led to a

breakdown in the operation of the RRCA, which has been

unable to resolve that dispute. See Kan. Br. in Support of

Compl. 7-10; Neb. Br. in Opp. 16-17, 19-21; Kan. Reply 7-10.

The RRCA considered the role of groundwater in its first

annual meeting, and it decided to limit its diversion measure-

ments to only alluvial groundwater pumping because consid-

eration of table-land groundwater pumping required “more

research and data.” Formulas for the Computation of

Annual Virgin Water Supply (April 4, 1961), supra, at 3.

Since that time, the RRCA, which can act only through

unanimous vote, has made no progress in resolving the issue.

At the same time, the compacting States have moved further

apart. Kansas now contends that the Compact should take

into account all groundwater consumptive use that reduces

surface flow, Br. in Support of Compl. 2, 7-9, while Nebraska

asserts that groundwater pumping is not a subject of the

Compact at all, Br. in Opp. 10, 20. The current deadlock

presents a situation in which an important interstate dispute

can be resolved only through the action of this Court. See

Texas v. New Mexico, 462 U.S. at 568-569.

2. Before Referring The Matter To A Special Master, This

Court Should Resolve The Threshold Legal Issue Of

Whether The Republican River Compact Restricts A

Compacting State’s Consumption Of Groundwater

Upon granting a motion for leave to file a complaint, the

Court typically directs the defendant to file an answer and

then, shortly thereafter, refers the matter to a Special Mas-

ter to conduct appropriate proceedings. See, e.g., New Jer-

17

sey v. New York, 511 U.S. 1080 (1994); 513 U.S. 924 (1994);

Nebraska v. Wyoming, 479 U.S. 1051 (1987); 483 U.S. 1002

(1987). In appropriate situations, however, this Court has

resolved preliminary or controlling legal issues before, or in

lieu of, referring the case to a Master. See United States v.

Alaska, 499 U.S. 946 (1991); 501 U.S. 1248, 1276 (1991); 503

U.S. 569 (1992); United States v. California, 332 U.S. 19, 21-

24 (1947). We suggest that this controversy presents a situa-

tion in which the latter course should be followed.

Nebraska and Kansas disagree over a threshold legal

issue: Whether the Republican River Compact places limita-

tions on the right of a compacting State to consume ground-

water. Nebraska specifically asserts that the Compact

imposes no such limitations. Br. in Opp. 10, 20. If this case

were governed by the Federal Rules of Civil Procedure,

Nebraska would be entitled to test its theory by moving

to dismiss Kansas’s complaint for failure to state a claim

upon which relief may be granted. See Fed. R. Civ. P.

12(b)(6). See also, e.g., 2A J. W. Moore, Moore’s Federal

Practice { 12.07[2.-5] (2d ed. 1996); 5A C. A. Wright & A. R.

Miller, Federal Practice and Procedure §§ 1355-1356 (2d ed.

1990). Although the Federal Rules are not strictly applica-

ble to this Court’s original actions, they provide a guide to

the Court’s proceedings. See Sup. Ct. R. 17.2. In this case,

the Court may wish to apply the procedure suggested by

Federal Rule 12(b)(6) to facilitate the disposition of this

action.

Specifically, we suggest that, if this Court grants Kansas

leave to file its complaint, the Court should grant Nebraska

leave to file a motion to dismiss, in the nature of a motion

under Rule 12(b)(6), limited to the question of whether, as a

matter of law, the Republican River Compact limits Ne-

braska’s right to consume groundwater. Kansas could then

respond to that motion, and the Court could decide that

threshold legal issue. If the Court concludes—as Nebraska

has urged—that the Compact imposes no such limit, then the

18

Court can promptly dismiss the action without consuming

the time and expense of appointing a Special Master. If the

Court concludes that the Compact does impose such a

limitation, or that resolution of that issue necessarily re-

quires development of facts outside the pleadings, then the

Court can deny the motion and refer the matter to a Special

Master to conduct the course of future proceedings. In that

situation, the Court’s decision would provide the Master and

the parties with definitive guidance on the appropriate scope

of those proceedings, which would assist the Master in

managing discovery and trial and might encourage renewed

negotiations and settlement. See Texas v. New Mezico, 462

U.S. at 574-576.

The United States’ experience with original actions in-

volving interstate groundwater disputes, most notably Kan-

sas v. Colorado (No. 105, Original) and Nebraska v. Wyom-

ing (No. 108, Original), suggests that the proposed course

would be highly desirable in this case. Interstate water

disputes pose complex trial-management problems once they

proceed past the pleading stage. Cf. Nebraska v. Wyoming,

515 U.S. at 8-9. The factual issues turn on complex questions

of meteorology, hydrology, geology, engineering, and eco-

nomics, which must be applied to thousands of square miles

of varied terrain and land uses. The litigation, particular dis-

covery and trial preparation, correspondingly tends to be

extraordinarily complicated, time-consuming, and expensive.

See, e.g., First Report of the Special Master in Kansas v.

Colorado, No. 105, Original, Vols. I to IV (1994).’ At the

same time, the complexity and high stakes of the litigation

7 We note that the Master fees and expenses to date have totaled

more than $1.5 million in Kansas v. Colorado (covering 1986 to 1997) and

more than $ 1.1 million in Nebraska v. Wyoming (covering 1987 to 1998).

Those assessments do not include the parties’ attorneys’ fees and

expenses. Nebraska has reportedly spent $16 million on the Nebraska v.

Wyoming litigation, which has not yet gone to trial. See G. Jensen, Suit

Has Hurdles, Jess Says, Kearney Hub (May 28, 1998).

19

may encourage wasteful pretrial skirmishing far removed

from the core controversy that prompted the lawsuit.°

We therefore believe that the Court should take advan-

tage of procedural mechanisms that may permit prompt

resolution of a threshold legal issue that divides the parties.

The question whether the Compact limits groundwater con-

sumption presents a discrete and straightforward issue of

compact interpretation that may be decided as a matter of

law through familiar tools of compact construction. In

resolving that legal issue, the Court would first examine the

text of the Compact. An interstate compact is both a

contract and a law of the United States. See Oklahoma v.

New Mezico, 501 U.S. 221, 235 n.5 (1991); Texas v. New

Mexico, 482 U.S. 124, 128 (1987). Like other federal laws, if

the text, read in light of its context, is unambiguous, it is

conclusive. See, e.g., Kansas v. Colorado, 514 U.S. at 690

(“We conclude that the clear language of Article IV-D [of the

Arkansas River Compact] refutes Colorado’s legal chal-

lenge.”); see also Texas v. New Mexico, 462 U.S. at 567-568

(“our first and last order of business is interpreting the

compact”); see also New Jersey v. New York, 118 S. Ct. at

1735-1738; Central R.R. v. Mayor and Aldermen of Jersey

City, 209 U.S. 473, 478-479 (1908). If the Court finds the text

ambiguous, it may also consider other reliable documentary

indicia of the parties’ intent, including materials submitted

to Congress in support of congressional approval. See

8 For example, in Nebraska v. Wyoming, one party recently wrote to

the Special Master as follows: “It is not [our] desire to drag these

proceedings out any further. [Our] concern relates to the fact that

Wyoming’s response to Basin’s motion to strike Nebraska’s reply to

Wyoming’s response to Basin’s petition to intervene is actually a response

to Nebraska’s response to Wyoming’s first motion to strike, which has

been denied. In this regard, Basin as well is arguing the merits of the

briefing schedule set forth in the Order of October 9, 1998, in the guise of

arguing about the propriety of responding to new arguments without

seeking leave to do so.” No. 108, Original, Letter to Special Master Owen

Olpin (Oct. 27, 1998).

20

Oklahoma v. New Mexico, 501 U.S. at 235 n.5; Texas v. New

Mexico, 462 U.S. at 568 n.14; Arizona v. California, 292 U.S.

341, 359-360 (1934). To the extent the parties’ practical con-

struction of the Compact bears on its meaning, see New

Jersey v. New York, 11858. Ct. at 1760 (Scalia, J., dissenting),

the Court may take judicial notice of the RRCA’s annual

reports.”

Because this Court uses the Federal Rules of Civil Pro-

cedure as merely a guide to the conduct of original actions, it

may tailor appropriate procedures to facilitate its decision-

making process. See United States v. Alaska, 499 U.S. at

1248, 1275. We suggest that, if the Court decides to grant

Nebraska leave to file a motion to dismiss, the Court may

wish to (a) specify the precise legal question that the parties

shall address; (b) set a schedule for Nebraska to file its

motion and supporting brief, for Kansas to file its responsive

brief, and for Nebraska to file a reply; and (c) impose

appropriate page limits for the briefs. If the Court elects to

follow this course, the United States would file a brief as

amicus curiae on the question posed.

CONCLUSION

The motion of the State of Kansas for leave to file a

complaint should be granted. The Court may wish to grant

the State of Nebraska leave to file a motion to dismiss.

° As we have noted, the RRCA’s annual reports indicate that the

RRCA adopted a compromise in 1959 on the question of groundwater

usage that takes into account alluvial groundwater pumping, but does not

include groundwater pumping from other sources. See pp. 9-10, 14, supra.

In our view, the RRCA’s compromise action neither categorically pre-

cludes Nebraska from asserting as a matter of law that the Compact does

not limit groundwater consumption, nor categorically precludes Kansas

from asserting as a matter of law that the Compact limits consumption of

all groundwater that may affect surface flow.

Respectfully submitted.

DECEMBER 1998

21

SETH P. WAXMAN

Solicitor General

Counsel of Record

Lois J. SCHIFFER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor

General

ANDREW F. WALCH

EDWARD A. BOLING

Attorneys

ADDENDUM

Act of May 26, 1943, Ch. 104, 57 Stat. 86

AN ACT

To grant the consent of Congress to a compact entered into by

the States of Colorado, Kansas, and Nebraska relating to the

waters of the Republican River Basin, to make provisions

concerning the exercise of Federal jurisdiction as to those waters,

to promote flood control in the Basin, and for other purposes.

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress as-

sembled, That the consent of Congress is hereby given

to the compact authorized by the Act entitled “An Act

granting the consent of Congress to the States of Colo-

rado, Kansas, and Nebraska to negotiate and enter into

a compact for the division of the waters of the Republi-

can River”, approved August 4, 1942. (Public Law 696,

Seventy-seventh Congress; 56 Stat. 736), signed by the

commissioners for the States of Colorado, Kansas, and

Nebraska at Lincoln, Nebraska, on December 31, 1942,

and thereafter ratified by the Legislatures of the States

of Colorado, Kansas, and Nebraska, which compact

reads as follows:

“REPUBLICAN RIVER COMPACT

“The States of Colorado, Kansas, and Nebraska, par-

ties signatory to this compact (hereinafter referred to

as Colorado, Kansas, and Nebraska, respectively, or in-

dividually as a State, or collectively as the States),

having resolved to conclude a compact with respect to

the waters of the Republican River Basin, and being

duly authorized therefor by the Act of the Congress of

the United States of America, approved August 4, 1942,

(Public No. 696, 77th Congress, Chapter 545, 2nd Ses-

sion) and pursuant to Acts of their respective

(la)

2a

Legislatures have, through their respective Governors,

appointed as their Commissioners:

M.C. Hinderlider, for Colorado

George S. Knapp, for Kansas

Wardner G. Scott, for Nebraska

who, after negotiations participated in by Glenn L.

Parker, appointed by the President as the Representa-

tive of the United States of America, have agreed upon

the following articles:

“Article I

“The major purposes of this compact are to provide

for the most efficient use of the waters of the Republi-

can River Basin (hereinafter referred to as the ‘Basin’)

for multiple purposes; to provide for an equitable divi-

sion of such waters; to remove all causes, present and

future, which might lead to controversies; to promote

interstate comity; to recognize that the most efficient

utilization of the waters within the Basin is for benefi-

cial consumptive use; and to promote joint action by the

States and the United States in the efficient use of

water and the control of destructive floods.

“The physical and other conditions peculiar to the

Basin constitute the basis for this compact, and none of

the States hereby, nor the Congress of the United

States by its consent, concedes that this compact

establishes any general principle or precedent with

respect to any other interstate stream.

3a

“Article II

“The Basin is all the area in Colorado, Kansas, and

Nebraska, which is naturally drained by the Republican

River, and its tributaries, to its junction with the

Smoky Hill River in Kansas. The main stem of the

Republican River extends from the junction near

Haigler, Nebraska, of its North Fork and the Arikaree

River, to its junction with Smoky Hill River near Junc-

tion City, Kansas. Frenchman Creek (River) in Ne-

braska is a continuation of Frenchman Creek (River) in

Colorado. Red Willow Creek in Colorado Red Willow

Creek in Colorado is not identical with the stream hav-

ing the same name in Nebraska. A map of the Basin

approved by the Commissioners is attached and made a

part hereof.

“The term ‘Acre-foot’, as herein used, is the quantity

of water required to cover an acre to the depth of one

foot and is equivalent to forty-three thousand, five

hundred sixty (43,560) cubic feet.

“The term ‘Virgin Water Supply’, as herein used, is

defined to be the water supply within the Basin unde-

pieted by the activities of man.

“The term ‘Beneficial Consumptive Use’ is herein

defined to be that use by which the water supply of the

Basin is consumed through the activities of man, and

shall include water consumed by evaporation from any

reservoir, canal, ditch, or irrigated area.

“Beneficial consumptive use is the basis and principle

upon which the allocation of water hereinafter made are

predicated.

4a

“Article III

“The specific allocations in acre-feet hereinafter

made to each State are derived from the computed av-

erage annual virgin water supply originating in the

following designated drainage basins, or parts thereof,

in the amounts shown:

“North Fork of the Republican River drainage basin

in Colorado, 44,700 acre-feet;

“Arikaree River drainage basin, 19,610 acre-feet;

“Buffalo Creek drainage basin, 7,890 acre-feet;

“Rock Creek drainage basin, 11,000 acre-feet;

“South Fork of the Republican River drainagebasin,

57,200 acre-feet;

“Frenchman Creek (River) drainage basin in

Nebraska, 98,500 acre-feet;

“Blackwood Creek drainage basin 6,800 acre-feet;

“Driftwood Creek drainage 7,300 acre. et;

“Red Willow Creek drainage basifi in Nebraska,

21,900 acre-feet;

“Medicine Creek drainage basin, 50,800 acre-feet;

“Beaver Creek drainage basin, 16,500 acre-feet;

“Sappa Creek drainage basin, 21,400 acre-feet;

“Prairie Dog Creek drainage basin, 27,600 acre-feet;

“The North Fork of the Republican River in Ne-

braska and the main stem of the Republican River be-

tween the junction of the North Fk and Arikaree

River and the lowest crossing of the river at the

Nebraska-Kansas state line and the smal] tributaries

thereof, 87,700 acre-feet.

“Should the future computed virgin water supply of

any source vary more than ten (10) per cent from the

virgin water supply as hereinabove set forth, the alloca-

tions hereinafter made from such source shall be in-

creased or decreased in the relative proportion that the

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future computed virgin water supply of such source

bears to the computed virgin water supply used herein.

“Article IV

“There is hereby allocated for beneficial consumptive

use in Colorado, annually, a total of fifty-four thousand,

one hundred (54,100) acre-feet of water. This total is to

be derived from the sources and in the amounts herein-

after specified and is subject to such quantities being

physically available from those sources:

“North Fork of the Republican River drainage basin,

10,000 acre-feet;

“Arikaree River drainage basin, 15,400 acre-feet;

“South Fork of the Republican River drainage basin,

25,400 acre-feet;

“Beaver Creek drainage basin, 3,300 acre-feet; and

“In addition, for beneficial consumptive use in Colo-

rado, annually, the entire water supply of the French-

man Creek (River) drainage basin in Colorado and of

the Red Willow Creek drainage basin in Colorado.

“There is hereby allocated for beneficial consumptive

use in Kansas, annually, a total of one hundred ninety

thousand, three hundred (190,300) acre-feet of water.

This total is to be derived from the sources and in the

amounts hereinafter specified and is subject to such

quantities being physically available from those

sources:

“Arikaree River drainage basin, 1,000 acre-feet;

“South Fork of the Republican River drainage basin,

23,000 acre-ffet;

“Driftwood Creek drainage basin, 500 acre-feet;

“BeaverCreek drainage basin, 6,400 acre-feet;

“Sappa Creek drainage basin, 8,800 acre-feet;

“Prairie Dog Creek drainage basin, 12,600 acre-feet;

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“From the main stem of the Republican River up-

stream from the lowest crossing of the river at the

Nebraska-Kansas state line and from water supplies of

upstream basins otherwise unallocated herein, 138,000

acre-feet; provided, that Kansas shall have the right to

divert all or any portion thereof at or near Guide Rock,

Nebraska; and

“In addition there is hereby allocated for beneficial

consumptive use in Kansas, annually, the entire water

supply originating in the Basin downstream from the

lowest crossing of the river at the Nebraska-Kansas

state line.

“There is hereby allocated for beneficial consumptive

use in Nebraska, annually, a total of two hundred

thirty-four thousand, five hundred (234,500)acre-feet of

water. This total is to be derived from the sources and

in the amounts hereinafter specified and is subject to

such quantities being physically available from those

sources:

“North Fork of the Republican River drainage

basinin Colorado, 11,000 acre-feet;

“Frenchman Creek (River) drainage basin in

Nebraska, 52,800 acre-feet;

“Rock Creek drainage basin, 4,400 acre-feet;

“Arikaree River drainage basin, 3,300 acre-feet;

“Buffalo Creek drainage basin, 2,600 acre-feet;

“South Fork of the Republican River drainagebasin,

800 acre-feet;

“Driftwood Creek drainage basin, 1,200 acre-feet;

“Red Willow Creek drainage basin in Nebraska, 4,200

acre-feet;

“Medicine Creek drainage basin, 4,600 acre-feet;

“Beaver Creek drainage basin, 6,700 acre-feet;

“Sappa Creek drainage basin, 8,800 acre-feet;

“Prairie Dog Creek drainage basin, 2,100 acre-feet;

Ta

“From the North Fork of the Republican River in

Nebraska, the main stem of the Republican River

between the junction of the North Fork and Arikaree

River and the lowest crossing of the river at the

Nebraska-Kansas state line, from the small tributaries

thereof, and from water supplies of up stream basins

otherwise unallocated herein, 132,000 acre-feet.

“The use of the waters hereinabove allocated shall be

subject to the laws of the State, for use in which the

allocations are made.

“Article V

“The judgment and ali provisions thereof in the case

of Adelbert A. Weiland, as State Engineer of Colorado,

et al. v. The Pioneer Irrigation Company, decided June

5, 1922, and reported in 259 U.S. 498, affecting the

Pioneer Irrigation ditch or canal, are hereby recognized

as binding upon the States, and Colorado, through its

duly authorized officials, shall have the perpetual and

exclusive right to control and regulate diversions of

water at all times by said canal in conformity with said

judgment.

“The water heretofore adjudicated to said Pioneer

Canal by the District Court of Colorado, in the amount

of fifty (50) cubic feet per second of time is included in

and is a part of the total amounts of water hereinbefore

allocated for beneficial consumptive use in Colorado and

Nebraska.

“Article VI

“The right of any person, entity, or lower State to

construct, or participate in the future construction and

use of any storage reservoir or diversion works in an

upper State for the purpose of regulating water herein

allocated for beneficial consumptive use in such lower

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State, shall never be denied by an upper State; pro-

vided, that such right is subject to the rights of the

upper State.

“Article VII

“Any person, entity, or lower State shall have the

right to acquire necessary property rights in an upper

State by purchase, or through the exercise of the power

of eminent domain, for the construction, operation and

maintenance of storage reservoirs, and of appurtenant

works, canals and conduits, required for the enjoyment

of the privileges granted by Article VI; provided, how-

ever, that the grantees of such rights shall pay to the

political subdivisions of the State in which such works

are located, each and every year during which such

rights are enjoyed for such purposes, a sum of money

equivalent to the average annual amount of taxes

assessed against the lands and improvements during

the ten years preceding the use of such lands, in reim-

bursement for the loss of taxes to said political

subdivisions of the State.

“Article VIII

“Should any facility be constructed in an upper State

under the provisions of Article VI, such constructicn

and the operation of such facility shall be subject to the

laws of such upper State.

“Any repairs to or replacements of such facility shall

also be made in accordance with the laws of such upper

State.

“Article 1X

“Tt shall be the duty of the three States to administer

this compact through the official in each State who is

now or may hereafter be charged with the duty of

administering the public water supplies, and to collect

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and correlate through such officials the data necessary

for the proper administration of the provisions of this

compact. Such officials may, by unanimous action,

adopt rules and regulations consistent with the pro-

visions of this compact.

“The United States Geological Survey, or whatever

federal agency may succeed to the functions and duties

of that agency, in so far as this compact is concerned,

shall collaborate with the officials of the States charged

with the administration of this compact in the execution

of the duty of such officials in the collection, correlation,

and publication of water facts necessary for the proper

administration of this compact.

“Article X

“Nothing in this compact shall be deemed:

“(a) To impair or affect any rights, powers or

jurisdiction of the Untied States, or those acting by or

under its authority, in, over,and to the waters of the

Basin; nor to impair or affect the capacity of the United

States, or those acting by or under its authority, to

acquire rights in and to the use of waters of the Basin;

“(b) To subject any property of the United States,

its agencies or instrumentalities, to taxation by any

State, or subdivision thereof, nor to create an obligation

on the part of the Untied States, its agencies or instru-

mentalities, by reason of the acquisition, construction,

or operation of any property or works of whatsoever

kind, to make any payments to any State or political

subdivision thereof, state agency, municipality, or

entity whatsoever in reimbursement for the loss of

taxes;

“(c) To subject any property of the United States,

its agencies or instrumentalities, to the laws of any

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State to any extent other than the extent these laws

would apply without regard to this compact.

“Article XI

“This compact shall become operative when ratified

by the Legislature of each of the States, and when

consented to by the Congress of the United States by

legislation providing, among other things, that:

“(a) Any beneficial consumptive uses by the United

States, or those acting by or under its authority, within

a State, of the waters allocated by this compact, shall be

made within the allocations hereinabove made for use in

that State and shall be taken into account in

determining the extent of use within that State.

“(b) The United States, or those acting by or under

its authority, in the exercise of rights or powers arising

from whatever jurisdiction the United States has in,

over, and to the waters of the Basin shall recognize, to

the extent consistent with the best utilization of the

waters for multiple purposes, that beneficial con-

sumptive use of the waters within the Basin is of

paramount importance to the development of the Basin;

and no exercise of such power or right thereby that

would interfere with the full beneficial consumptive use

of the waters within the Basin shall be made except

upon a determination, giving due consideration to the

objectives of this compact and after consultation with

all interested federal agencies and the state officials

charged with the administration of this compact, that

such exercise is in the interest of the best utilization of

such waters for multiple purposes.

“(c) The United States, or those acting by or under

its authority, will recognize any established use, for

domestic and irrigation purposes, of the waters allo-

cated by this compact which may be impaired by the

lla

exercise of federal jurisdiction in, over, and to such

waters; provided, that such use is being exercised

beneficially, is valid under the laws of the appropriate

State and in conformity with this compact at that time

of the impairment thereof, and was validly initiated

under state law prior to the initiation or authorization

of the federal program or project which causes such

impairment.

“IN WITNESS WHEREOF, the Commissioners have

signed this compact in quadruplicate original, one of

which shall be deposited in the archives of the Depart-

ment of State of the United States of America and shall

be deemed the authoritative orginial, and of which a

duly certified copy shall be forwarded to the Governor

of each of the State.

“Dene in the City of Lincoln, in the State of Ne-

braska, on the 3lst day of December, in the year of our

Lord, one thousand nine hundred forty-two.

“M.C. HINDERLIDER

“Commissioner for Colorado

“GEORGE S. KNAPP

“Commissioner for Kansas

‘WARDNER G. SCOTT

“Commissioner for Nebraska

“I have participated in the negotiations leading to

this proposed compact and propose to report to the

Congress of the United States favorably thereon.

“GLENN L. PARKER

“Representative of the United States”

Sec. 2(a) In order that the conditions stated in article

XI of the compact hereby consented to shall be met and

that the compact shall be and continue to be operative,

the following provisions are enacted —

12a

(1) any beneficial consumptive uses by the

United States, or those acting by or under its

authority, within a State, of the waters allocated by

such compact, shall be made within the allocations

made by such compact for use in that State and shall

be taken into account in determining the extent of

use within that State;

(2) the United States, or those acting by or

under its authority, in the exercise of rights or

powers arising from whatever jurisdiction the

United States has in, over, and to the waters of the

Basin shall recognize, to the extent consistent with

the best utilization of the waters from multiple

purposes, that beneficial consumptive use of the

waters within the Basin is of paramount importance

to the development of the Basin; and no exercise of

such power or right thereby that would interfere

with the full beneficial consumptive use of the

waters within the Basin shall be made except upon a

determination, giving due consideration to the

objectives of such compact and after consultation

with all interested Federal agencies and the State

officials charged with the administration of such

compact, that such exercise is in the interest of the

best utilization of such waters for multiple purposes.

(3) the United States, or those acting by or

under its authority, will recognize any established

use, for domestic and irrigation purposes, of the

waters allocated by such compact which may be

impaired by the exercise of Federal jurisdiction, in,

over, and to such waters: Provided, That such use is

being exercised benefically, is valid under the laws

of the appropriate State and in conformity with such

compact at the time of the impairment thereof, and

was validly initiated under State law prior to the

13a

initiation or authorization of the Federal program or

project which causes such impairment.

(b) As used in this section —

(1) “beneficial consumptive uses” has the same

meaning as when used in the compact consented to

by Congress by this Act; and

(2) “Basin” refers to the Republican River Basin

as shown on the map attached to and made a part of

the original of such compact deposited in the

archives of the Department of State.

Approved May 26, 1943.