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

No. 126, Original

In the Supreme Court of the Anited States

STATE OF KANSAS, PLAINTIFF

Vv.

STATE OF NEBRASKA

AND

STATE OF COLORADO

ON MOTION TO DISMISS

BRIEF FOR THE UNITED STATES AS AMICUS

CURIAE IN OPPOSITION TO THE EXCEPTIONS TO

THE FIRST REPORT OF THE SPECIAL MASTER

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. 20580-0001

(202) 514-2217

QUESTION PRESENTED

Whether the Republican River Compact restricts a

compacting State’s consumption of groundwater.

TABLE OF CONTENTS

Re GE Cie TIE TREO ccccstcccsccncpinninnteteiiiccinssiatinicseiinisiaitaiaisiin

Statement

SORE EEE E EEE EERE EEE EEE EEE EEE EEE HEHE EERE EEE EEE OE EEE EE EES

I Sr IS, eccisicincccceesscsniineaieastsiesteniniansinapiniitiiniiiinainminitbins

Argument:

The Special Master has correctly interpreted the

Republican River Compact and properly recommend-

ed denial of Nebraska’s Motion to Dismiss ..............00..........

B,D picncctsssensesciiatesiniiiea iniadedheinaibineiiibaiiibiininaniiinies

B. The Master correctly concluded that the

Conclusion

Republican River Compact restricts a com-

pacting State’s consumption of groundwater

to the extent that the consumption depletes

ie CIR FI rerccncscsntecremitemnnicicienmnemnatiinnmnnsas

The Court should reject Nebraska’s exceptions

to the Master’s recommendation ...................-2200000000+

a

The Master did not commit procedural]

The Master’s recommendation addresses

i I i crsiccsinsvtiiininiintiabiteildablienatenesats

The Master did not err in his analysis of

Cane CARRIE CRD ceccctcrennentnisenitnctntinitiiannesticnnes

The Court should reject Colorado’s exception

to the Master’s recommendation ...............:0:ccecseeseee

The Court should deny the motion to dismiss

and recommit the case to the Special Master

Rat RaRTeGe SP CRIIIID oeciectensicntniernsasntsitnivinaanniaiinvinein

PPT TEEPE PTET eee eee eee EEE Ee eee eee

(IIT)

11

15

15

20

20

27

29

30

IV

TABLE OF AUTHORITIES

Cases—Continued:

Page

Air France v. Saks, 470 U.S. 392 (1985) ..........cccccccceeeeeseeees 13

Atlantic Cleaners & Dryers v. United States,

Se eI I sehncinteneciectciiesieenciisasessseniiinpbantniniinnnennemienaentis 25

Arizona v. California:

ee GN IIE scvntcccscnnisemnsannneuvinndeininsisninsamninieniiiaimeinieieiees 13

a IED secinesicicnsientshiceininnninntindtiiatenitbantasneinndivantamniian 9

iia IID - secetctsciniicicininsienteinindtibenianiininntansontainsinmeenccenis 9

Bowles vy. United States, 319 U.S. 33 (1943) ................. 16, 18

Caha v. United States, 152 U.S. 211 (1894) ........ 18

Christianson v. Colt Indus. Operating Corp.,

Be itiicctiicctancteetssasicnepetanniniaibatiintenienentinnen 19-20

Drainage Dist. No.1 v. Suburban Irrigation Dist.,

298 N.W. 131 (Neb. 194}) .. wes 23

El Al Israel Airlines, Ltd. v. foul Yuen fi,

ee Rs ED | ctuiintinnsccsicesnmnntenstiaeiientiinemesiabinninnnniane 18

Hinderlider v. La Plata River & Cherry Creek Ditch

ia Se Re IIE iccicsensasvecsesasinsesscipladesinionsonninsnaminetsinhedindaiiiinen 23

Kansas v. Colorado:

Bs SIT cciccinsiesniaesipendivntsnasitaniadnnaeidincantiodininmaiatiio 13

BO a cscs veccssnscennieicteestadtainclesdbsiaumaisateintinie 9, 13, 26

Kansas v. Nebraska:

Be ID a ociiccicininianvenmapsaieaisianiiasimnteintecaiasamsciainebeien 1,2

I i, II is orcratecesipeseientdlienaniensinsennneeaibannipiie 3

a is III‘ esnisdsnesenstnsdlentinntosnamnsinsssisenmicaseniustnastnssane 5

Menominee Indian Tribe v. Thompson, 161 F.3d

449 (7th Cir. 1998), cert denied, 119 S. Ct. 1459

— RRERIDERABSTE Stary iaerneecssaed SOL Min sy arpe seepet eo eee 18, 19

Metropolitan Utils. Dist. v. Merritt Beach Co.,

ED a Oe re ie I BD ces ccccticicscstcccenesncnaninisenninenciesins 24-25

Minnesota v. Mille Lacs Band of Chippewa Indians,

aE Re PE IIE sccccoviteiinccisenientassiatenitndenasienniaiinentauitinasiniannitioes 18

Nationsbank of North Carolina, N.A. v. Variable

Annuity Life Ins. Co., 513 U.S. 251 (1995)

Nebraska v. Wyoming, 515 U.S. 1 (1995)

eT PPP CPP Pee See Pee eee

Cases—Continued: Page

Neitzke v. Williams, 490 U.S. 319 (1989) ............ 11, 15-16, 20

New Jersey v. New York:

ne I assasitsinicciciucaasibiinaidcdninsciinetibddiopabdemsbubeesnsaniin 10

IN I ead nto 13

Ohio v. Kentucky, 410 U.S. 641 (1973) 00 10, 18

Oklahoma vy. New Mexico, 501 U.S. 221 (1991) ..0-0 oo... 13

Olson v. City of Wahoo, 248 N.W. 304 (Neb. 1933) .......... 23

Papasan v. Allain, 478 U.S. 265 (1986) 000.000. 19

Paquete Habana, 176 U.S. 677 (1900) 002... ceeeeceeeee es 18

Pioneer Irrigation Dists. v. Danielson, 658 P.2d

IIIA. SII - in iceessdeisidenisiniisehicbdecscesindliaseiadiseiibioassibisintpeaditenns 25

Regions Hosp. v. Shalala, 522 U.S. 448 (1998) ......00.00000.. 16

Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155

IIIT iicidigieecsecaesdicnstiendaiidaiinampaitaasteldnssindiiiasaieiindtanaeteeiaenianstins 18

Snake Creek Mining & Tunnel Co. v. Midway

Trrigation Co., 260 U.S. 596 (1923) .......eccecssesseseeeesseeseeeees 13

South Dakota v. Yankton Sioux Tribe, 522 U.S.

éguuepsasonensusteasanahenntpantendagnenesanseneenatieumieesonniacnessneeneneEnns 18

State ex rel. Dyer v. Sims, 341 U.S. 22 (1951) ........00....... ‘. 21

State ex rel. Peterson v. Kansas State Bd. of Agric.,

iain iitcicenccacecelasencasssnnenes 22

State ex rel. Douglas v. Sporhase, 305 N.W.2d 614

(Neb. 1981), rev’d, 458 U.S. 941 (1982) 0... 23, 24

State ex rel. Emery v. Knapp, 207 P.2d 440

("REDRESS Po too Ne chee ED SRO TSE ODEN ENO eT 24

Texas v. New Mexico:

IE euaneussinaneinabiedeneeasinaseieedionsane 26

Be ee ED sihicsicnininsiccvscnnstnhnstnnepesnnienanasesies 10, 13, 26, 30

ee 26

Thornton v. United States, 271 U.S. 414 (1926) .............. 18

Tucker v. Texas, 326 U.S. 517 (1946) .................c0cc.ccceccceee 18

Underhill v. Hernandez, 168 U.S. 250 (1897) ........00000...... 18

Constitution, statutes and rules:

U.S. Const. Art. I, § 10, Cl. 3 (Compact Clause)

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

VI

Statutes and rules—Continued: Page

Arkansas River Compact, Pub. L. No. 82, 63 Stat. 146 ..... 26

Clean Water Act, 33 U.S.C. 1251 et seq. occ 25

McCarran Amendment, 43 U.S.C. 666 .00.0.........ccccccccceeeeeeeeees 25

Kansas-Nebraska Big Blue River Compact, Pub. L.

I a UI ciara aaamtienh daniel 26

al cent tenes 26

Pecos River Compact, Pub. L. No. 91, 63 Stat. 159 ...0....... 26

Ps Bs GAs Be REID Sivteicsncsicsnnvescsesionsene 10, 11, 15, 16, 17, 19

Fed. R. Evid.:

I A CIN TID 11 csichiaetlsimatetbldimniieininiengiesdbameiadiaiaitninsatieiadiont 17

ARSE RE nara PANU UE RED NES Oe NOAM FED 16

I sda gala 16

SE? Sli WEN IE GAIT ness neediest niclaudoliusbinliaindaceinesebadieiipnialanidiadlaeiiainisenenadiins 18

Miscellaneous:

Julie Anderson, States Ponder Deal on Platte, Omaha

re FN Oa II. crcnitterissscnhinieciniitiicinnincasisineineninioniiis 10

Joan Barron, Wyo Lawyers praised for North

Platte Deal, Casper Star, May 12, 2000 .0......2....ccccseeeeeeeees 10

Minutes of the Third Meeting of the Republican River

Compact Commission at Lincoln, Neb. (Dec. 30,

IEE sisncesseciuusibicscblidiiconiiladetuediiiabitetaaiae lila Dee aiid iindl fice icealiteacls 23

James Wm. Moore, Moore's Federal Practice

(Matthew Bender 3d ed. 1997):

MGs I scnsieniiicisidiseniatneiaiabicinainiaiiiiainnindiatisbaiiantigiinirnnmeninnti 16, 18

Ma SIT sind selalcipiatihelhieeblaicheaiieonntacecibiaaatediasineie 20

2A Norman J. Singer, Statutes and Statutory

CPTI Te Os GO wiccrcccntessenccsnesnstictissermenisetnnssts 17

C.F. Tolman & Amy C. Stipp, Analysis of Legal

Concepts of Subflow and Percolating Waters,

ee Rs Bix a, Ie CIE sebtietaicteeeeitiniionsinoniencenissonenpitnene 13

Samuel C, Wiel, Need of Unified Law for Surface

and Underground Water, 2 S. Cal. L. Rev. 358

UD taitatisiiscniintiahapsiahnc sicihciaeisicinanbienaiausiduptidiininenitinenaeitiedaniin 13

Charles A. Wright & Arthur R. Miller, Federal

PUREE GRE PPOCOEUTS (TDGG) wcecesesescsverssescssnrscesesecsesccvecsese 16

Jn the Supreme Court of the Anited States

No. 126, Original

STATE OF KANSAS, PLAINTIFF

Vv.

STATE OF NEBRASKA

AND

STATE OF COLORADO

ON MOTION TO DISMISS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

IN OPPOSITION TO THE EXCEPTIONS TO THE

FIRST REPORT OF THE SPECIAL MASTER

INTEREST OF THE UNITED STATES

The United States has a significant interest in the inter-

pretation of the Republican River Compact. The States of

Colorado, Kansas, and Nebraska entered into this Compact

to apportion an interstate stream and to provide the basis

for orderly planning and development of federal flood control

and irrigation projects. Federal officials participated in the

formulation of the Compact, and Congress ultimately ap-

proved the Compact pursuant to the Compact Clause of the

Constitution, Art. I, § 10, Cl. 3. See Act of May 26, 1943, ch.

104, 57 Stat. 86. This Court invited the Solicitor General to

express the views of the United States in response to Kan-

sas’s motion for leave to file a bill of complaint, 525 U.S. 805

(1998). In response, the United States urged this Court to

grant Kansas’s motion for leave to file the complaint, but also

urged the Court to grant Nebraska leave to file a motion to

dismiss in order to resolve at the outset the central issue of

whether the Compact restricts a compacting State’s con-

(1)

2

sumption of groundwater. See U.S. Invitation Br. 16-20.

The Court followed that course, and the United States filed a

brief as amicus curiae in opposition to Nebraska’s motion to

dismiss, see U.S. Opp. Mot. Br. 13-30, and participated in the

proceedings before the Special Master.

STATEMENT

The State of Kansas filed this original action to enforce its

rights under the Republican River Compact, which allocates

the “virgin water supply” of the Republican River Basin

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

First Report of the Special Master (Rep.) 1. Kansas alleges,

as its principal ground for relief, that Nebraska has exceeded

its Compact allocation by allowing its citizens to pump and

consume groundwater that should be included as part of the

allocated water supply. See Compl. para. 7; Kan. Br. in

Support of Compl. 2. Nebraska has denied that allegation,

see Neb. Answer para. 7, and has additionally argued, among

other defenses and counterclaims, that the Compact does not

restrict Nebraska's right to consume groundwater, id. para.

19.

In responding to this Court’s request for the United

States’ views on whether Kansas should be granted leave to

file a bill of complaint (Kansas v. Nebraska, 525 U.S. 805

(1998)), the United States noted that Kansas and Nebraska

starkly disagreed at the threshold on the fundamental and

potentially dispositive legal issue of whether the Republican

1 The Master’s First Report sets out the text of the Republican

River Compact (Rep. App. Al-A14), a map incorporated as part of the

Compact (td. at Al6), and a map of the Republican River Basin from

Kansas’s complaint (Rep. App. B). The Brief of the United States as

Amicus Curiae in Opposition to the Motion to Dismiss describes the

Republican River Basin (U.S. Opp. Mot. Br. 2-4), the formulation of the

Compact (id. at 4-6), the terms of the Compact (id. at 6-9), post-Compact

water resource developments (id. at 9), and the current controversy (id. at

10-12).

3

River Compact restricts a compacting State’s consumption

of groundwater. See U.S. Invitation Br. 11. The United

States urged that an early resolution of that central legal

issue through an appropriate pretrial mechanism would

greatly facilitate the resolution of this case, and it suggested

that the Court allow Nebraska to file a motion to dismiss

limited to that issue. /d. at 16-20. Following Nebraska’s

submission of its answer to the complaint, the Court granted

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

motion under Rule 12(b)(6), Federal Rules of Civil Proce-

dure, limited to the question whether the Republican River

Compact restricts a State’s consumption of groundwater.”

119 S. Ct. 2364 (1999).

Nebraska filed a motion to dismiss predicated on three

related arguments. Nebraska contended that: (1) the Com-

pact, by its terms, apportions only surface flows and not

groundwater; (2) this Court and the compacting States have

interpreted the Compact as an agreement regarding rights

to surface water; and (3) the parties did not intend to appor-

tion groundwater under the Compact. See Neb. Br. in Sup-

port of Mot. to Dismiss (Neb. Br.) 5-6. In essence, Nebraska

contended that the Republican River Compact treated sur-

face water and groundwater as distinct resources, and it

argued that the Republican River Compact, as a matter of

law, “apportion[s] surface water only.” Id. at 20.

Kansas and Colorado opposed Nebraska’s motion, but

they relied on different legal theories. Kansas essentially

argued, based on the Republican River Compact’s language

and the history of its negotiation, that the Compact restricts

a compacting State’s consumption of groundwater to the

extent necessary to maintain allocations of surface flows to

downstream States. Kansas Br. in Opp. to Mot. to Dismiss

(Kan. Br.) 9-22. Colorado contended, based primarily on the

history of the Republican River Compact’s negotiation and

administration, that the Compact allocates alluvial ground-

4

water but does not include “Ogallala Aquifer” groundwater.

Colo. Resp. to Neb. Mot. to Dismiss (Colo. Br.) 6-18, 20-23?

The United States, as amicus curiae, opposed Nebraska's

motion on grounds similar to those of Kansas. The United

States explained that the Republican River Compact appor-

tions the “virgin water supply,” which is defined as “the

water supply within the Basin undepleted by the activities of

man” (Art. I] (Rep. App. A3)). See U.S. Opp. Mot. Br. 15.

The Compact calculates the virgin water supply in terms of

the Basin stream flows, see Arts. II-IV (Rep. App. A3-A7),

which, as a matter of settled hydrological principles, can

originate from surface runoff, groundwater discharge, or

both. U.S. Opp. Mot. Br. 16-19. Accordingly, if a compacting

State consumes a portion of the groundwater that would

otherwise constitute a component of the stream flows, then

that consumption should be charged against the compacting

State’s allocation of the “virgin water supply.” See id. at 19-

fg

After the motion to dismiss was fully briefed, this Court

appointed Vincent L. McKusick as a Special Master and

2 As the Master explained, the term “alluvial” groundwater basically

describes groundwater pumped from the alluvium deposited by stream

flow in the valley floors. See Rep. 5 n.6. The term “table-land” or “up-

land” groundwater describes non-alluvial groundwater. /bid. The United

States understands the term “Ogallala Aquifer” groundwater to describe

non-alluvial groundwater that is pumped from an identifiable geologic

stratum that underlies, and extends beyond, the Republican River Basin.

For purposes of Nebraska's motion to dismiss, the Master has not distin-

guished between Ogallala Aquifer groundwater and other types of non-

alluvial groundwater. /[bid.

3 The United States noted that this common-sense conclusion finds

support in (1) the text of the Compact (U.S. Opp. Mot. Br. 15, 19-21); (2)

the Compact’s negotiation history (id. at 15, 18-19); (3) the States’ practical

construction of the Compact, as reflected in their published formulas for

computing the annual virgin water supply and water consumption (id. at

22-24); and (4) this Court’s decisions construing other interstate water

compacts (id. at 25-27).

5

referred the matter to him. 120 S. Ct. 519 (1999). The

Master held a hearing and issued his First Report. Follow-

ing a detailed analysis, the Master submitted the following

recommendation to the Court:

The Republican River Compact restricts a compacting

State’s consumption of groundwater to the extent the

consumption depletes stream flow in the Republican

River Basin and, therefore, Nebraska’s Motion to Dis-

miss should be denied.

Rep. 45. In summarizing the basis of his recommendation,

the Master explained that he relied on the unambiguous

language of the Compact (id. at 44) and that, even if the

Compact were ambiguous, the record of the Compact nego-

tiations and Compact administration “reflects an identical

interpretation.” Jbid. He also noted that “no decision of

either this Court or any court of any of the compacting

States detracts from the plain and inclusive meaning of the

term ‘virgin water supply.” /bid.

The Master made clear that his inquiry was limited to the

narrow legal issue identified in this Court’s order granting

Nebraska leave to file a motion to dismiss. Rep. 18. The

Master’s recommendation accordingly does not reach any

factual questions concerning whether or to what extent

Nebraska is liable under his recommended construction of

the Compact. See id. at 45 (“Nebraska violates the Compact

if, as a factual matter, Nebraska’s groundwater pumping,

whether from alluvial or tableland wells, depletes stream

flow in the Basin to the extent that Nebraska exceeds its

allocated share of the virgin water supply.”).

SUMMARY OF ARGUMENT

A. Nebraska's motion to dismiss raises the fundamental

legal issue at the center of this case: Whether the Republican

River Compact restricts a compacting State's consumption

of groundwater. The Master has examined that issue and

6

determined that the Compact restricts groundwater con-

sumption to the extent the consumption depletes Basin

stream flows. The Master has accordingly recommended

that Nebraska’s motion to dismiss should be denied. The

Master’s recommendation is sound and should be adopted by

this Court. That course of action will facilitate the ultimate

resolution of this action.

B. The Master correctly observed that the Republican

River Compact apportions the “virgin water supply,” which

the Compact defines as “the water supply within the Basin

undepleted by the activities of man.” Art. II (Rep. App. A3).

The Compact quantifies the virgin water supply in terms of

stream flow. See Art. III (Rep. App. A4). The Master

assumed, consistent with Kansas’s factual allegations and

incontrovertible hydrological principles, that the Republican

River stream flows originate from both surface runoff and

groundwater discharge. The Master accordingly concluded,

based on the unambiguous Compact language, that “[t]o

whatever extent groundwater pumping depletes the stream

flow in the Basin, such depletion constitutes consumption of

the virgin water supply and must be counted against the

allocated share of the pumping State.” Rep. 2-3. See id. at

44. The Master also properly concluded that, even if the

Compact language were ambiguous, and the Court deter-

mined that it needed to consult the records of the Compact

negotiations and Compact administration, those sources

would lead to the same conclusion. See ibid.

C. Nebraska presents three objections to the Master’s

recommendation.

First, Nebraska contends that the Master erred as a

matter of procedure because he considered matters outside

the pleadings and effectively granted judgment to Kansas.

Nebraska is mistaken. The Master made clear that his

recommendation could stand solely on the basis of the Com-

pact’s unambiguous language. He nevertheless also re-

ported that his recommendation was consistent with

7

extrinsic indicia of the compacting States’ intent, including

the official records of the Compact’s negotiation and imple-

mentation. The Master committed no procedural error in

bringing those matters to the Court’s attention. The Court

has discretion to consider those official records if it concludes

that the Compact itself is ambiguous. The Master also did

not enter judgment for Kansas. The Master made clear that

Kansas can prevail only if it demonstrates, as a factual

matter, that groundwater pumping in Nebraska has dimin-

ished Basin stream flows.

Second, Nebraska contends that the Master addressed

issues not properly before him. Nebraska essentially argues

that the Master could recommend granting or denying Ne-

braska’s motion to dismiss, but he could not recommend that

the Court make a legal ruling construing the Compact con-

trary to Nebraska’s interpretation. Nebraska, again, is mis-

taken. In resolving a motion to dismiss, a court may decide a

question of law. The interlocutory resolution of that ques-

tion becomes law of the case and governs future proceedings.

The Master has recommended that the Court deny Ne-

braska’s motion to dismiss on the ground that the Compact

regulates groundwater consumption that diminishes stream

flow. If the Court agrees with the Master’s construction of

the Compact and denies the motion to dismiss on that basis,

that ruling will establish certain legal principles that will be

applied in later proceedings to determine whether, as a

matter of fact, Kansas is entitled to relief.

Third, Nebraska claims that the Master misinterpreted

the Compact. The Master’s Report comprehensively ad-

dresses Nebraska’s objections. As the Master explained,

Nebraska’s central argument—that the Compact apportions

only “surface water”’—fails to come to grips with the fact

that stream flows consist of both surface runoff and ground-

water discharge. The Master correctly recognized that a

State’s consumption of the groundwater discharge compo-

nent of a stream flow necessarily results in reduction of the

8

stream flow. Nothing that Nebraska cites—including various

judicial decisions, federal statutes, and other compacts—

alters that fundamental aspect of the Compact’s apportion-

ment.

D. Colorado objects to the Master’s recommendation that

the Republican River Compact restricts consumption of

groundwater in the Basin—whatever its source—to the

extent the consumption depletes stream flow. In Colorado's

view, the Compact draws a distinction between “alluvial”

groundwater and “Ogallala Aquifer” groundwater, restrict-

ing consumption of the former but not the latter. The

Master correctly rejected that argument. As he explained,

the Compact’s text is unambiguous and draws no such dis-

tinction. In addition, the official records of the Compact’s

administration show that the compacting States have long

viewed both alluvial and non-alluvial groundwater as subject

to Compact restrictions.

E. This Court should accept the Master’s recommen-

dation, deny Nebraska’s motion to dismiss, and recommit the

case to the Master for further proceedings. On recommittal,

Kansas will bear the burden of establishing, as a matter of

fact, that groundwater pumping in Nebraska has depleted

Republican River Basin stream flows. In undertaking future

proceedings, the parties should be mindful that the factual

inquiry will be complex and that the Court’s resolution of the

longstanding legal dispute over the Compact’s effect on

groundwater consumption may provide a basis for a negoti-

ated resolution of the remaining issues in this case.

9

ARGUMENT

THE SPECIAL MASTER HAS CORRECTLY INTER-

PRETED THE REPUBLICAN RIVER COMPACT AND

PROPERLY RECOMMENDED DENIAL OF NE-

BRASKA’S MOTION TO DISMISS

A. Introduction

The United States’ experience with original actions in-

volving interstate water disputes suggests that those cases

are likely to result in costly and protracted litigation that

may span decades. See e.g., Nebraska v. Wyoming, 515 U.S.

1, 4-8 (1995) (describing litigation over apportionment of the

North Platte River); Kansas v. Colorado, 514 U.S. 673, 678-

681 (1995) (describing litigation over enforcement of the Ar-

kansas River Compact); Arizona v. California, 460 U.S. 605,

608-612 (1983) (describing litigation over apportionment of

the Colorado River). The parties’ typically raise factual is-

sues that turn on complex questions of meteorology, hydrol-

ogy, geology, engineering, and economics, which must be ap-

plied to thousands of square miles of varied terrain and land

uses. The litigation, particularly discovery and trial prepara-

tion, correspondingly tends to be extraordinarily compli-

cated, time-consuming, and expensive. See, e.g., 1-4 First

Report of the Special Master, Kansas v. Colorado, No. 105,

Orig. (1994).*

4 The litigation in Nebraska v. Wyoming, Kansas v. Colorado, and

Arizona vy. California is ongoing to this day. In Arizona v. California

(No. 8, Orig.), which was commenced in 1952, the Court is currently con-

sidering exceptions to the Master’s most recent report. See 120 S. Ct. 296

(1999) (argued Apr. 25, 2000). In Kansas v. Colorado (No. 105, Orig.),

which was commenced in 1985, the Master is preparing a report on the

question of an appropriate remedy. In Nebraska v. Wyoming (No. 108,

Orig.), which was commenced in 1986, the Master has postponed a trial,

scheduled to begin on May 10, 2000, to facilitate a consensual resolution of

the dispute. Newspaper reports describing that litigation state that

Nebraska and Wyoming have each spent in excess of $20 million on the

10

The United States accordingly supports the view that,

before invoking this Court’s original jurisdiction, the parties

should attempt consensual resolution of their differences.

See Texas v. New Mexico, 462 U.S. 554, 575 (1983) (“Time

and again we have counseled States engaged in litigation

with one another before this Court that their dispute ‘is one

more likely to be wisely solved by co-operative study and by

conference and mutual concession on the part of represen-

tatives of the States so vitally interested in it than by

proceedings in any court however constituted.’”) (quoting

New York v. New Jersey, 256 U.S. 296, 313 (1921)). If those

differences cannot be resolved through consensual means,

then the United States encourages the use of procedural

mechanisms to clarify the issues and facilitate, to the extent

possible, the ultimate termination of the litigation. See U.S.

Invitation Br. 16-20; see also Ohio v. Kentucky, 410 U-S. 641,

644 (1973) (“Our object in original cases is to have the

parties, as promptly as possible, reach and argue the merits

of the controversy presented.”).

In this case, the United States determined from the

pleadings and its experience in administering federal water

projects on the Republican River, that Kansas and Nebraska

disagree on a threshold legal issue: whether the Republican

River Compact regulates a compacting States’ consumption

of groundwater. The United States concluded that this

question, if resolved at the outset, either would largely ter-

minate the litigation or would provide concrete guidance on

the legal standard and direct the course of future proceed-

ings. The United States accordingly recommended that the

Court make available the pretrial mechanism of a motion to

dismiss, in the nature of a motion under Rule 12(b)(6),

Federal Rules of Civil Procedure, limited to the question of

case. See Julie Anderson, States Ponder Deal on Platte, Omaha World

Herald, May 6, 2000 at 2; Joan Barron, Wyo Lawyers Praised for North

Platte Deal, Casper Star, May 12, 2000, at B2.

11

whether, as a matter of law, the Republican River Compact

limits Nebraska’s right to consume groundwater. U.S.

{nvitation Br. 17.

The Court has followed that course, Nebraska has filed its

motion to dismiss, and the Master has recommended a cor-

rect resolution of the issue, which will facilitate the deter-

mination of this litigation. We begin by explaining why the

Master’s analysis is correct, and we then address Nebraska’s

and Colorado’s exceptions. Finally, we briefly discuss how

the Master’s decision should affect the future course of the

litigation.°

B. The Master Correctly Concluded That The Republi-

can River Compact Restricts A Compacting State’s

Consumption Of Groundwater To The Extent That

The Consumption Depletes Basin Stream Flows

The Master has correctly determined that the Republican

River Compact restricts a compacting State’s consumption

of groundwater. As the Master explained at the outset of his

analysis, he has addressed that legal question through the

familiar principles that would govern a motion to dismiss

under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

See Rep. 19. He assumed that the factual allegations set out

in the complaint are true, see Neitzke v. Williams, 490 U.S.

319, 326-327 (1989), and, because “the Compact is both a con-

tract and a federal and State statute,” he evaluated the legal

issue through application of “the customary rules of contract

interpretation and statutory construction.” Rep. 19. Upon

thorough examination, the Master concluded that the text of

5 The Brief of the United States as Amicus Curiae in Opposition to

the Motion to Dismiss, which was filed in this Court and considered by the

Master, provides a detailed analysis of the Compact. That brief, which we

cross-reference herein, includes an addendum that reproduces the official

minutes of the Compact negotiations (U.S. Opp. Mot. Br. Add. 13a-80a)

and selected reports of the Republican River Compact Administration

(RRCA) (id. at 81a-114a).

12

the Republican River Compact unambiguously restricts a

compacting State’s consumption of groundwater. /d. at 19-

23. He additionally concluded that “even if the language of

the Compact were thought to be ambiguous,” the other

sources that shed light on the construction of the Compact

lead “clearly to the same conclusion.” Id. at 23; see id. at 23-

3A.

1. The Master correctly observed that the Republican

River Compact apportions the “virgin water supply” of the

Republican River Basin, which the Compact defines as “the

water supply within the Basin undepleted by the activities of

man.” Rep. 19 (quoting Art. II). The Master also correctly

discerned that the Compact quantifies the “virgin water

supply” in terms of stream flow. /d. at 20 (citing Art. III).

The Master assumed, consistent with Kansas’s factual alle-

gations and incontrovertible hydrological principles, that

Republican River stream flows originate from both surface

runoff and groundwater discharge. /d. at 2 n.3, 19-22. He

therefore correctly concluded:

To whatever extent groundwater pumping depletes the

stream flow in the Basin, such depletion constitutes con-

sumption of a part of the virgin water supply and must

be counted against the allocated share of the pumping

State. The use of a State’s allocation through ground-

water pumping is permissible, but such pumping is

subject to the restrictions imposed by the Compact

allocations.

Id. at 2-3. This Master correctly determined that “the lan-

guage of the Compact is not ambiguous.” /d. at 23. To the

contrary, “{a] straightforward reading of its terms yields the

conclusion that a State’s groundwater pumping, to the

extent it depletes the stream flow in the Basin, is intended to

be allocated as part of the virgin water supply and to be

counted as consumptive use by the pumping State.” /bid.;

see also id. at 44. The Compact’s unambiguous text conclu-

13

sively resolves the legal issue. See New Jersey v. New York,

523 U.S. 767, 811 (1998); Kansas v. Coierado, 514 US. at 690;

Texas v. New Mexico, 462 U.S. at 567-568.

2. The Master recognized that there was no need for the

legal analysis to proceed further. See Rep. 19, 23, 44. He

nevertheless observed that, when interpreting an interstate

compact, the Court may examine other reliable indicia of

intent, including “items in the public record such as the

minutes of the Compact negotiations and the records of sub-

sequent Compact administration.” Jd. at 19. See Oklahoma

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

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

341, 359-360 (1934); see also Air France v. Saks, 470 U.S.

392, 396 (1985); New Jersey v. New York, 523 U.S. at 830-831

(Sealia, J., dissenting). The Master therefore reported on

those additional indicia of the Compact’s meaning. See Rep.

23-34.

The Master observed that “the hydraulic connection be-

tween groundwater pumping and stream flow is already

assumed for purposes of [Nebraska’s] Motion,” but he also

properly took notice that “(t]he connection between ground-

water discharge and stream flow was a widely known scien-

tific fact well before the Compact was drafted.” Rep. 23.

The Master cited decisions of this Court, as well scientific

and legal commentary of the pre-Compact era, reflecting an

understanding of the hydraulic connection. See id. at 23-24

(citing Snake Creek Mining & Tunnel Co. v. Midway Irriga-

tion Co., 260 U.S. 596, 598 (1923); Kansas v. Colorado, 206

U.S. 46, 114-115 (1907); C.F. Tolman & Amy C. Stipp, Analy-

sis of Legal Concepts of Subflow and Percolating Waters, 21

Ore. L. Rev. 113, 115-129 (1942); Samuel C. Wiel, Need of

Unified Law for Surface and Underground Water, 28. Cal.

L. Rev. 358, 362 (1921)).

The Master also recognized that the “documents from the

negotiation and drafting of the Compact demonstrate that

the Commissioners who represented the compacting States

14

were well aware (1) that groundwater diversion prior to its

entrance into the stream flow can have the effect of deplet-

ing the virgin water supply and (2) that groundwater contri-

butions to the virgin water supply would be allocated under

the Compact.” Rep. 25. The Master specifically pointed to

the official minutes of the Compact negotiations, which

“clearly show that the States in negotiating the Compact (1)

understood the connection between groundwater use and

surface water depletion, and (2) were thinking about the

impact of groundwater pumping at the time of the Compact

negotiations.” Jd. at 26.

In evaluating the Compact’s meaning, the Master also

reported on the parties’ practical construction of the Com-

pact. Rep. 32-33. As the Master explained, in 1959, the

States created the Republican River Compact Administra-

tion (RRCA) to administer the Compact. /d. at 14. As part

of its duties, the RRCA has published formulas for calculat-

ing the virgin water supply and each State’s consumption.

Id. at 14-16. The Master took notice of those official pub-

lished formulas and correctly observed:

From the outset, the RRCA has, by its unanimous

action, construed the Compact to restrict any kind of

groundwater pumping by a compacting State to the

extent it depletes stream flow in the Basin. The RRCA

immediately applied that general principle to alluvial

groundwater pumping and deferred applying it to table-

land groundwater pumping only because of the need to

obtain further data to quantify the effect of the table-

land pumping on Basin stream flow.

Id. at 32; see also id. at 32-34. “The RRCA, through its call

for ‘more research and data’ to quantify the hydraulic con-

nection between table-land pumping and stream flow, has

repeatedly indicated its intention later to include the effect

of table-land groundwater pumping in the Formulas.” I/d. at

3A.

15

Based on all of the information discussed above, the

Master “conlude[d] that, as a matter of law, the Compact

restricts, and allocates as part of the virgin water supply,

any groundwater that would become part of the stream flow

in the Basin if not previously depleted through an activity of

man such as pumping.” Rep. 34.°

C. The Court Should Reject Nebraska's Exceptions To

The Master’s Recommendation

Nebraska argues that the Court should reject the Mas-

ter’s recommendation on the grounds that he: (1) committed

procedural errors by considering matters outside the plead-

ings and granting a “judgment” to Kansas; (2) made findings

concerning matters not before him; and (3) misapplied the

Compact. Each of those arguments is unpersuasive.

1. The Master Did Not Commit Procedural Error.

Nebraska raises two claims of procedural error. First, the

State contends (Neb. Except. Br. 6-10) that the Master com-

mitted an “initial procedural error’ because, in considering

the State’s motion to dismiss, the Master did not follow Rule

12(b)(6)’s direction that, if “matters outside the pleading are

presented to and not excluded by the court, the motion shall

be treated as one for summary judgment and disposed of as

provided in Rule 56,” which governs the granting of sum-

mary judgment. See Fed. R. Civ. P. 12(b)(6). Second, Ne-

braska contends that the Master’s recommendation “offers

judgment to the non-moving party (i.e., Kansas) that is

basically the opposite of that requested by the movant.”

Neb. Except Br. 10-11. Those arguments are without merit.

a. “Rule 12(b)(6) authorizes a court to dismiss a claim on

the basis of a dispositive issue of law.” Neitzke v. Williams,

6 The Master also discussed judicial precedent cited by the parties

(Rep. 34-38) and Colorado’s position on the motion to dismiss, which draws

a distinction between pumping groundwater from the alluvium and

pumping groundwater from the Ogallaia Aquifer (id. at 41-44). We discuss

those matters infra in response to the Nebraska and Colorado exceptions.

16

490 U.S. 319, 326 (1989). “This procedure, operating on the

assumption that the factual allegations in the complaint are

true, streamlines litigation by dispensing with needless dis-

covery and factfinding.” Jd. at 326-327. Rule 12(b)(6) does

not, however, allow “dismissals based on a judge’s disbelief

of a complaint’s factual allegations.” Jbid. Rule 12(b)(6)'s

conversion requirement ensures that, when a motion to

dismiss raises potentially disputable factual matters that are

not a part of the complaint, Rule 56’s summary judgment

procedures will be utilized to identify whether there is a

factual dispute that requires a trial. See generally 2 James

Wm. Moore, Moore’s Federal Practice § 12.34[2] (Matthew

Bender 3d ed. 1997); Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure § 1364 (1990).

Rule 12(b)(6)’s conversion requirement does not, however,

prevent a court from considering, without conversion, “facts

alleged in the pleadings, documents attached as exhibits or

incorporated by reference in the pleadings, and matters of

which the judge may take judicial notice.” 2 Moore’s Federal

Practice § 12.34[2]. A judge may take judicial notice of

“public records.” Jbid. See, e.g., Bowles v. United States,

319 U.S. 33, 35 (1943). Under the Federal Rules of Evidence,

a judge may also take judicial notice of an “adjudicative fact”

if that fact is:

not subject to reasonable dispute in that it is either (1)

generally known within the territorial jurisdiction of the

trial court or (2) capable of accurate and ready deter-

mination by resort to sources whose accuracy cannot

reasonably questioned.

Fed. R. Evid. 201(b). See also Fed. R. Evid. 201(f) (“Judicial

notice may be taken at any stage of the proceeding.’’).

Finally, when interpreting a statute, a court may draw

upon various intrinsic and extrinsic sources to determine the

meaning of the statutory text. See, e.g., Regions Hosp. v.

Shalala, 522 U.S. 448, 460 n.5 (1998) (when interpreting

17

statutes, courts “look to the provisions of the whole law, and

to its object and policy”); see also Fed. R. Evid. 201 note (a)

(discussing the distinction between adjudicative and legisla-

tive facts); see generally 2A Norman J. Singer, Statutes and

Statutory Construction (6th ed. 2000). “It is only through

custom, usage, and convention that language acquires estab-

lished meanings.” Jd. § 45.02, at 13. Accordingly, a court not

only may, but to some degree must, consider “matters out-

side the pleading”’——such as a dictionary, or in appropriate

cases, legislative history, or administrative constructions of

the legislation—to determine legislative intent. The limita-

tions on what aids to statutory construction may be consid-

ered derive principally from their pertinence and reliability

as guides to the legislation’s meaning, see id. §§ 47.01-48.20,

rather than from the formal conversion requirement set out

in Rule 12(b)(6).

Rule 12(b)(6)’s conversion requirement has limited rele-

vance in this proceeding because the Master ruled that the

Compact’s text, by itself, is unambiguous and sufficient to

resolve the legal question presented. See Rep. 44.’ If the

Court agrees, then there is no need to proceed further. Any

procedural question respecting consideration of extrinsic

materials arises only if the Court concludes that the Com-

pact is ambiguous and wishes to look beyond the text to

other indicia of intent. The parties discussed those indicia in

varying degrees in the proceedings before the Master, and

he has reported on them. The Master’s Report, however,

contains only an advisory recommendation. This Court

remains the trial court with original jurisdiction over the

matter. This Court has sole authority to determine whether

consideration of extrinsic materials is necessary or appropri-

’ As the Master noted, Rule 12(b)(6) required him to assume the fact

of an hydraulic connection between stream flow and groundwater for pur-

poses of the motion to dismiss. Rep. 1-2, 20-21. He also noted, however,

that this connection “is a well established scientific fact.” Jd. at 2 n.3.

18

ate, and whether conversion is required. Indeed, the Fed-

eral Rules themselves are taken only “as guides.” Sup. Ct.

R. 17.2. See Ohio v. Kentucky, 410 U.S. 641, 644 (1973).

If the Court decides to consider extrinsic materials, then

the Court may certainly consider the official minutes of the

Compact negotiations and the reports of the RRCA for

purposes of resolving the legal issue presented here. See

U.S. Opp. Mot. Br. Add. 13a-114a.2 The United States

appended those materials to its Opposition Brief because

they are matters of public record that bear on the meaning of

the Compact. See id. at 13-14 & n.6.° Nebraska has not

8 Nebraska acknowledged below that the Court may take notice of

items in the public record (Neb. Br. 5), and it did not ask the Master to

recommend conversion of the proceeding to one for summary judgment.

° A Compact is federal legislation, and parties may therefore exam-

ine those official materials, which are analogous to legislative history or

administrative interpretations, as an aid in determining the Compact’s

meaning. To the extent that the Compact is also a contract, those records

are subject to judicial notice. See, e.g., Tucker v. Texas, 326 U.S. 517, 519

n.1 (1946) Qudicial notice of regulations of the Federal Public Housing

Authority); Bowles v. United States, 319 U.S. 33, 35 (1943) (judicial notice

of a decision of the Director of the Selective Service); Thornton v. United

States, 271 U.S. 414, 420 (1926) (judicial notice of regulations issued by the

Secretary of Agriculture); The Paquete Habana, 175 U.S. 677, 696 (1900)

(judicial notice of records of the Navy Department); Underhill v.

Hernandez, 168 U.S. 250, 253 (1897) (judicial notice of materials within the

archives of the State Department); Caha v. United States, 152 U.S. 211,

221-222 (1894) (judicial notice of rules and regulations of the Interior

Department); see also 2 Moore’s Federal Practice § 12.34[2] (collecting

lower court cases). To the extent a compact resembles a treaty, reference

to minutes and other aspects of the negotiating history, as well as sub-

sequent understandings and administration are relevant. See, e.g., Minne-

sota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 197-199

(1999); El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167,

170, 172-174 (1999), South Dakota v. Yankton Sioux Tribe, 522 U.S. 329,

334, 336, 347, 351-354 (1998); Sale v. Haitian Centers Council, Inc., 509

U.S. 155, 184-187 (1993); Menominee Indian Tribe v. Thompson, 161 F.3d

449, 456 (7th Cir. 1998) (court may take judicial notice on historical docu-

19

challenged the authenticity of those public records, which

were readily available to the parties, and the parties dis-

agree only on the legal significance of those materials. Those

materials provide no basis for converting Nebraska’s motion

to one for summary judgment, because Nebraska has not in

any concrete way suggested that those materials give rise to

a disputed issue of fact. See Papasan v. Allain, 478 U.S.

265, 268 n.1 (1986)."°

b. Nebraska also claims that the Master committed a

procedural error by effectively granting a “judgment” to

Kansas. Neb. Exc. Br. 10-11. That argument rests on a mis-

characterization of the Master’s recommendation. The

Master has recommended that the Court make a legal ruling,

in response to Nebraska’s motion to dismiss, that the Com-

pact restricts a compacting State’s consumption of ground-

water to the extent the consumption depletes the virgin

water supply, which is measured by reference to Basin

stream flows. Rep. 45. That legal determination does not

result in a judgment in favor of Kansas because it leaves

open a crucial factual issue: whether Nebraska’s ground-

water consumption has that effect. See id. at 3 (“I conclude

that the Compact restricts groundwater consumption to

whatever extent it depletes stream flow in the Republican

River Basin.”) (emphasis added). If the Court adopts the

Master’s recommendation, the Court’s ruling will, however,

establish law of the case. The law-of-the-case doctrine

“posits that when a court decides upon a rule of law, that

ments bearing on the meaning of an Indian treaty), cert. denied., 119 S. Ct.

1459 (1999).

10 Kansas submitted additional materials to the Master, including cor-

respondence and internal governmental memoranda, and provided an

authenticating affidavit. See Kan. Br. 12 n.1; see also Kan. Br. App. la-

lla. It is unnecessary to determine whether each of those items may be

considered in deciding a motion under Rule 12(b)(6), because the records

of the Compact negotiations and the RRCA records, individually and

collectively, are more than adequate to resolve any Compact ambiguities.

20

decision should continue to govern the same issues in sub-

sequent stages in the same case.” Christianson vy. Colt

Indus. Operating Corp., 486 U.S. 800, 816 (1988). In this

case, the Court’s decision will establish the legal rule that

will govern future proceedings, which in turn will “promotef |

the finality and efficiency of the judicial process.” Jbid. See

generally 18 Moore’s Federal Practice § 134.20.

2. The Master’s Recommendation Addresses The Issue

Before Him. Nebraska next makes the novel argument that

its motion to dismiss does not allow the Master to recom-

mend, or this Court to make, a binding legal determination

that is adverse to Nebraska. See Neb. Except. Br. 10-11.

According to Nebraska, the motion left the Master with two

choices: He could recommend that the Court grant the

motion and dismiss the case or he could recommend that the

Court deny the motion without reaching any legal con-

clusion. See Neb. Except. Br. 11-15. Nebraska's argument

rests on a fundamental misconception about the function of a

motion to dismiss. As noted above, “Rule 12(b)(6) authorizes

a court to dismiss a claim on the basis of a dispositive issue of

law.” Neitzke, 490 U.S. at 326. This Court granted Ne-

braska leave to file a motion to dismiss to resolve a threshold

issue of Compact construction that will determine the course

of future proceedings. The Master has made a recommenda-

tion, based on a reasoned analysis, and interpreted the Com.

pact in accordance with the views of Kansas and the United

States, and contrary to the views of Nebraska and Colorado.

The question before this Court is whether the Master’s

construction is correct. The Court must decide, one way or

the other, what the Compact means. That ruling becomes

the law of the case and governs future proceedings. See

Christianson, 486 U.S. at 815-816.

3. The Master Did Not Err In His Analysis Of The

Compact Language. Nebraska contends that the Master's

construction of the Compact is erroneous because it assert-

edly: (a) misinterprets the text of the Compact (Neb.

21

Except. Br. 16-31); (b) is inconsistent with other federal law

(id. at 31-46); and (c) improperly relies on the RRCA

formulas (id. at 46-47).

a. All of Nebraska’s textual objections to the Master’s

construction of the Compact derive from its central premise

that “(t]he express terms of the Compact discuss and appor-

tion only surface water.” Neb. Except. Br. 17. The Com-

pact, however, does not use the term “surface water,” and

the terms that Nebraska relies on to suggest that the Com-

pact apportions only surface water—“Basin,” “drained,” and

“drainage basin” (id. at 17-23)—do not suggest in any way

that the Compact allows unlimited groundwater pumping

regardless of its effects. To the contrary, the Compact

allocates stream flows, and consumption of the groundwater

discharge component of a stream necessarily diminishes the

stream flow. Under Nebraska’s approach, by contrast, a

State could receive more than its Compact allocation by

simply intercepting that component before it reaches the

stream. Likewise, and contrary to Nebraska’s contentions

(id. at 22-24), the Compact’s failure to mention groundwater

or its apportionment is irrelevant. The “comprehensive

definition of virgin water supply, even without use of the

express term ‘groundwater,’ requires a conclusion that, as a

matter of law, a State can violate the Compact through

excessive pumping of groundwater hydraulically connected

to the Republican River and its tributaries.” Rep. 22. See

U.S. Opp. Mot. Br. 15-19.

Nebraska is also mistaken in asserting (Neb. Except. Br.

24-31) that the Master failed to consider contemporaneous

federal and state laws that bear on the meaning of the

Compact. As the Master correctly noted, this Court retains

the “final power to pass upon the meaning and validity of

compacts.” State ex rel. Dyer v. Sims, 341 U.S. 22, 28 (1951).

Federal and state laws and judicial decisions may provide

interpretive guidance, but they cannot override a compact’s

text and proper meaning. Furthermore, compacting States

22

are not “constrained” (Neb. Except. Br. 24) by their own

existing common or statutory law from formulating new

solutions to interstate problems that depart from settled

practices.

Nebraska essentially contends that the Compact should be

interpreted to impose no limits on groundwater pumping in

light of a series of state-law cases that discussed the regula-

tion of groundwater in various contexts. The Master cor-

rectly concluded that there is “nothing in those state court

decisions that runs counter to the natural inclusive construc-

tion of the Compact’s definition of ‘virgin water supply.’”

Rep. 39. For example, Nebraska suggests that State ez rel.

Peterson v. Kansas State Board of Agriculture, 149 P.2d 604

(Kan. 1944), indicates that the Compact does not regulate

groundwater because the Kansas Supreme Court in that

ease surveyed Kansas water law and concluded that “[n]o

statute cited to us, and none which we have found by our

own research,” gave Kansas officials the authority to regu-

late groundwater. /d. at 611. See Neb. Except. Br. 25. The

Kansas Supreme Court offered that statement in the context

of the State’s power to regulate pumping from the Equus

Beds, an intrastate groundwater source. See Rep. 40 n.20.

The court had no reason to consider the interstate obliga-

tions arising from the Republican River Compact, which

creates duties among sovereign States and had no applica-

tion to the precise issue at hand. See zd. at 39-40. Further-

more, although the Compact in our view obligated Nebraska

to adopt appropriate measures in the future (by new legisla-

tion if necessary) to restrict groundwater consumption if

necessary to maintain required stream flows, it does not

follow that the Compact itself must be read to confer that

authority on Kansas officials. Accordingly, the Kansas Su-

preme Court’s failure in Peterson to mention the Compact as

a source of authority for Kansas officials to regulate ground-

water, and the subsequent enactment of a law in 1945 to

regulate groundwater in that State (see Neb. Except. Br. 26-

23

27), in no way detracts from the Master’s interpretation of

the Compact.

The other cases that Nebraska cites similarly shed no

light on the meaning of the Compact. For example, Ne-

braska relies (Neb. Except. Br. 27-28) on several cases show-

ing that Nebraska limited its application of the prior appro-

priation doctrine to surface water and, until 1957, did not

regulate a surface owner’s pumping of groundwater. See

State ex rel. Douglas v. Sporhase, 305 N.W.2d 614 (Neb.

1981); Drainage Dist. No. 1 v. Suburban Irrigation Dist., 298

N.W. 131 (Neb. 1941); Olson v. City of Wahoo, 248 N.W. 304

(Neb. 1933). The mere fact that Nebraska had not taken

action to regulate groundwater at the time it entered into

the Compact does not mean, however, that Nebraska did not

assume an obligation to do so if groundwater consumption in

Nebraska interfered with the Compact’s apportionment of

stream flows. See Rep. 39. Contrary to Nebraska’s sugges-

tions (Neb. Except. Br. 29-30), a State’s entry into an inter-

state compact may result in the State assuming new duties,

enforceable as a matter of federal law, to protect the rights

of the other compacting States. See Hinderlider v. La Plata

River & Cherry Creek Ditch Co., 304 U.S. 92, 106 (1938); U.S.

Opp. Mot. Br. 28 n.16."

b. Nebraska contends that the Master’s recommendation

is: (i) contrary to this Court’s decision in Sporhase v. Ne-

braska ex rel. Douglas, 458 U.S. 941 (1982) (Neb. Except. Br.

31-35); (ii) contrary to state supreme court interpretations of

the Compact (id. at 35-37); (iii) inconsistent with various

‘| The Compact negotiators expressly stated that their deliberations

were “guided by (this Court’s decision in Hinderlider v. La Plata River &

Cherry Creek Ditch Co., 304 U.S. 92, 106 (1938)], establishing the rights of

states to make an equitable division of the waters of an interstate stream,

regardless of its effect upon the presumably vested interests in either of

the signatory states.” Minutes of the Third Meeting of the Republican

River Compact Commission at Lincoln, Nebraska, U.S. Br. Opp. Mot.

Add. 23a.

24

federal statutes (id. at 38-43); and (iv) contrary to this

Court’s interpretation of other interstate compacts (id. at 43-

46). Each of those contentions is without merit.

Nebraska contends that this Court’s decision in Sporhase

demonstrates the Court’s understanding that the Republican

River Compact does not restrict a compacting State’s con-

sumption of groundwater. That contention, however, reads

far too much into Sporhase. The Court ruled in that case

that groundwater is an article of commerce that is subject to

Commerce Clause restrictions (458 U.S. at 945-954), that

Nebraska’s restriction on interstate groundwater transfers

impose an impermissible burden on commerce (id. at 954-

958), and that Congress has not affirmatively authorized that

otherwise impermissible burden (id. at 958-960). The Court

remarked, in that context, that various interstate compacts,

including the Republican River Compact, “are agreements

among States regarding rights to surface water.” Jd. at 959.

As the Master explained, that remark sheds no light on the

meaning of the Compact. Rep. 37-38. It “is not a specific

determination that all of the cited interstate compacts apply,

or that any particular compact applies, only to direct surface

water diversions.” Jd. at 38. In any event, the Court’s

remark is consistent with the Master’s construction. The

Master has not interpreted the Compact to apportion

groundwater as an in situ resource. See U.S. Opp. Mot. Br.

15-16. Rather, he has concluded that the Compact restricts

Nebraska’s groundwater consumption to the extent that the

consumption interferes with the Compact’s apportionment of

stream flows. See Rep. 37-38.

Nebraska also contends (Neb. Except. Br. 35-37) that the

Master’s interpretation of the Compact conflicts with state

supreme court interpretations of the Compact. Three of the

cited cases, however, provide no insight into the Compact’s

meaning. See State v. Knapp, 207 P.2d 440 (1949); State ex

rel. Douglas v. Sporhase, 305 N.W.2d 614 (1981); Metropoli-

tan Utilities Distr. v. Merritt Beach Co., 140 N.W.2d 626

25

(1966). See Rep. 39-40. The fourth case, Pioneer Irrigation

M’sts. v. Danielson, 658 P.2d 842 (Colo. 1983), discusses the

Compact, but has no bearing on the question presented here.

As the Master explained, “[t]he sole issue in Pioneer was the

division of jurisdiction between two state tribunals and the

court had no occasion to consider whether the Compact re-

stricts the pumping of groundwater hydraulically connected

to surface flow.” Rep. 41.

Nebraska next contends that judicial decisions inter-

preting two completely unrelated statutes—the McCarran

Amendment and the Clean Water Act—‘“have rejected an

implied inclusion of hydrologically or hydraulically connected

water (whether surface or ground) to those statutes.” Neb.

Except. Br. 38. The McCarran Amendment, 43 U.S.C. 666,

provides a waiver of the United States’ immunity from suit

in general stream adjudications, while the Clean Water Act,

33 U.S.C. 1251 et seg., addresses water quality issues. The

only common feature that the Compact and those enact-

ments share is that each involves water. That feature is

insufficient to support the inference that Congress intended

those laws and the Compact to be interpreted in para

materia. See Nationsbank of North Carolina, N.A. v. Vari-

able Annuity Life Ims. Co., 513 U.S. 251, 262 (1995) (“a

characterization fitting in certain contexts may be unsuitable

in others”); Atlantic Cleaners & Dyers, Inc. v. United States,

286 U.S. 427, 433 (1932) (courts properly give words “the

meaning which the legislature intended [they] should have in

each instance”).

There is similarly no merit to Nebraska’s argument (Neb.

Except. Br. 43-46) that the Master’s recommendation con-

flicts with this Court’s construction of other compacts. To

the contrary, the Court’s decisions indicate that there is

nothing novel in recognizing that an interstate compact that

apportions stream flows can limit a compacting State’s

groundwater usage. This Court has twice faced that ques-

tion. In Kansas v. Colorado, No. 105, Orig., the Court

26

adopted the Special Master’s uncontested recommendation

that the Court find that Colorado had violated the Arkansas

River Compact, Pub. L. No. 82, 63 Stat. 145, through exces-

sive groundwater pumping. 514 U.S. 673 (1995). And in

Texas v. New Mexico, No. 65, Orig., the Court issued a series

of rulings respecting the Pecos River Compact, Pub. L. No.

91, 68 Stat. 159, which reflected the understanding that the

Compact limited New Mexico’s right to consume ground-

water. See 446 U.S. 540 (1980); 462 U.S. 554 (1983); 482 U.S.

124 (1987). In each of those original actions, the Compact in

question did not expressly apportion groundwater. See Rep.

34-37; see generally U.S. Opp. Mot. Br. 24-27.

Nebraska offers the Kansas-Nebraska Big Blue River

Compact, Pub. L. No. 92-308, 86 Stat. 193, as an example of

an interstate compact that expressly restricts groundwater

consumption. That compact does so by apportioning “natural

flow” and defining that term to include “ground-water infilt-

ration to the stream.” 86 Stat. 194. Nebraska essentially

argues that, because the compacting States expressly ad-

dressed groundwater effects on stream flow in the Blue

River Compact, compacts that do not do so should be con-

strued to exclude groundwater effects. The Master properly

rejected that argument, explaining that “[b]oth compacts

restrict consumption of groundwater to the extent it enters

the stream flow, and they merely use different language to

accomplish that restriction.” Rep. 30.

ec. Nebraska contends that the Master erred in consider-

ing the RRCA’s administration of the Compact as an indi-

cium of the compacting States’ intent. Neb. Except. Br. 46-

47. The Master correctly discerned that the RRCA’s prac-

tices, as recorded in its official records, are highly relevant.

Rep. 32-34. The Court is under no obligation to consider

those records. See pp. 13-15, 17-19, supra. Nevertheless,

they set out formulas for calculating the virgin water supply

and consumption that reflect an understanding among the

27

compacting States that the Compact restricts groundwater

consumption:

First, with respect to alluvial groundwater, the Formu-

las simply do not “define” alluvial water as part of stream

flow; rather they expressly state: “Diversions from

groundwater shall be limited to those by wells pumping

from the alluvium along the stream channels a

* * * The Formulas specifically identify alluvial

groundwater as groundwater and include groundwater

diversions by pumping in the calculation of the virgin

water supply for every sub-basin. Second, with respect

to table-land groundwater, the Formulas merely de-

ferred for the time being inclusion of table-land diver-

sions because of the lack of sufficient data to quantify

their effect.

Rep. 33-34. See U.S. Opp. Mot. Br. 22-24; see also U.S. Opp.

Mot. Br. Add. 81a-102a (First Annual Report of the RRCA);

id. at 103a-114a (Formulas).

D. The Court Should Reject Colorado's Exception To

The Master’s Recommendation

Colorado has also filed an exception to the Master’s

recommendation, but its exception rests on a different

theory. In Colorado’s view, the Republican River Compact’s

text is ambiguous on the question of whether it imposes

restrictions on groundwater pumping. Colo. Except. Br. 5-9.

Colorado accordingly urges the Court to consult the record

of the Compact negotiations and administration, which, in

Colorado’s view, demonstrates that the compacting States

intended the Compact to restrict groundwater pumping from

alluvial sources, but not from the Ogallala Aquifer. The

Master correctly rejected that argument. Rep. 41-44.

The Master concluded that the “Colorado contention is

impossible to square with the Compact’s broad and inclusive

definition of ‘virgin water supply.’” Rep. 42-43. He noted

28

that “the express language of the Compact * * * allocates

the entire water supply of the Basin ‘undepleted by the

activities of man.’” Jd. at 42. Contrary to Colorado’s asser-

tions (Colo. Except. Br. 10-21), the Compact does not create

any exceptions based on the origins of the water or “the

difficulty of quantifying the effect of one form of depletion

(i.e., table-land groundwater pumping).” Rep. 43. Rather,

“the drafter’s true concern was to take into account any

form of depletion—whether by alluvial or table-land pump-

ing or otherwise.” Ibid. “To protect each State’s Compact

allocation—the most important substantive right each State

receives in the Compact—the drafters surely intended to

forbid a State’s consumptive use of Basin stream flows in

excess of that State’s allocation, by whatever means that

excessive use occurs.” Ibid.

As the Master additionally noted, “the RRCA has put a

practical construction on the Compact adverse to the Colo-

rado position.” Rep. 43. The RRCA’s First Annual Report

demonstrates that the RRCA was aware that groundwater

pumping from non-alluvial sources could deplete Republican

River Basin stream flows. See U.S. Opp. Mot. Br. Add. 87a-

88a, 90a-91a. The RRCA made clear that it included only

alluvial groundwater pumping in its virgin water supply

formulas because the RRCA did not have sufficient data, at

that time, to estimate the effects of non-alluvial groundwater

pumping. See ibid.; see also id. at 97a-98a. Since that time,

the RRCA has repeatedly called for more data and research

to determine those effects. Rep. 43-44. “The RRCA would

have no reason to make that repeated call if it did not under-

stand itself to be bound by the Compact to incorporate the

results of that research in its Formulas for calculating virgin

water supply and consumptive use.” /d. at 44. See U.S. Opp.

Mot. Br. 22-24.

29

E. The Court Should Deny The Motion To Dismiss And

Recommit The Case To The Special Master For

Further Proceedings

For the foregoing reasons, this Court should overrule the

objections of Nebraska and Colorado, accept the Special

Master’s recommendation, and rule that the Republican

River Compact restricts a compacting State's consumption

of groundwater to the extent the consumption depletes

stream flow in the Republican River Basin. In accordance

with the Court’s normal practice, the case should be recom-

mitted to the Master for further proceedings consistent with

that ruling.

If the Court adopts the Master’s recommendation, the

Court’s ruling will provide the parties with clear guidance

for future proceedings on the merits of Kansas’s primary

claim. Kansas will bear the burden of establishing, as a

matter of fact, that groundwater pumping in Nebraska has

depleted Republican River Basin stream flows. To make

that showing, Kansas will need to demonstrate the hydro-

logical connection between Basin stream flows and ground-

water pumping—whether from alluvial or table-land wells—

and Kansas will need to establish the net stream flow losses

resulting from groundwater consumption. In our experi-

ence, the adversarial process is not the ideal mechanism for

carrying those inquiries. The resolution of those factual

issues may entail the collection of a substantial amount of

data covering a large geographic area and may require re-

sort to novel or expensive scientific techniques.

The Court might accordingly wish to remind the parties

that consensual mechanisms remain available to resolve

their differences. The Republican River Compact imposes a

duty on Colorado, Kansas, and Nebraska to administer the

Compact through cooperative efforts. See Art. IX (Rep.

App. A9). This Court’s clarification of an outstanding legal

issue that has hampered interstate cooperation may provide

30

the basis for the States to reach a pragmatic accord on how

to regulate groundwater pumping that affects stream flow.

The dispute over groundwater effects is likely to be one that

could be “wisely solved by co-operative study and by confer-

ence and mutual concession.” Texas v. New Mexico, 462 U.S.

at 575."

CONCLUSION

The motion to dismiss should be denied and the case

should be recommitted to the Special Master.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

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

JUNE 2000

12 The United States Geological Survey (USGS) is currently con-

ducting a study of groundwater resources in the Republican River Basin.

That study, which the USGS expects to complete in early 2001, is likely to

provide additional information respecting those resources that may assist

the States in reaching an accord.