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

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No. 126, Original

In the Supreme Court of the United States

STATE OF KANSAS, PLAINTIFF

Vv.

STATE OF NEBRASKA AND STATE OF COLORADO

ON MOTION FOR LEAVE TO PETITION

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

NEAL KUMAR KATYAL

Acting Solicitor General

Counsel of Record

IGNACIA S. MORENO

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

ANN O’CONNELL

Assistant to the Solicitor

General

KEITH E. SAXE

JAMES DUBOIS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

TABLE OF CONTENTS

Page

I a Le eel ie eee Ce eee eS ees Ree Roe HD l

A. The Republican River basin ................5.45. 2

B. The compact approval process ..........-2-200205- +

C. The Republican River Compact ..... ......-...-. 4

D. Post-compact federal development. ..............- 6

Ik. Previous litigation and the final settlement

3 eR ee ere ee ee eee ee ee 6

P. “Fme CUPORE COOTOVOTRY 2. wo occ cee nce cccccces

AS SET a ee ee ETS ee eee ee ee eee Pee Tee 12

A. Kansas’s petition pleads a controversy that

warrants the exercise of original] jurisdiction .. .... 15

B. Before referring the matter to a special master,

this court should provide for resolution of

ee I Ein dv acces ebeesnencecceses 19

C. Nebraska should be required to file a motion

if it wishes to prosecute a counterclaim ........... 21

tthe Rae Renee r iene 2 ee ee 2:33

TABLE OF AUTHORITIES

Cases:

Arizona Vv. California, 373 U.S. 546 (1963) 2.2.22... 13

Kansas v. Colorado, 185 U.S. 125 (1902) ...02. wo. eke. 13

Kansas v. Colorado:

OER OPA EEE Nicdibweenwteeeten eadeseuncs 13

Me ED: °c Sue's a Wapauacweoctapeceanues 17

Kansas v. Nebraska:

— ok Bk rr rrr 7,14

er Sh SPEED iccdacvinoeces. Se catesesan 7, 20

(1)

Cases—Continued: Page

528 U.S. 1001 (1999 ay a a 7

GSO US. ISR kaka bonuwnncepueeeneeeeee 7

Mississippi v. Louisiana, 506 U.S. 73 (1992)... . 13

Nebraska v. Wyoming:

2p US. SEP CPG ns vidi dcdece caeseeneeee 13

i es 19

Nebraska v. Wyoming:

481 U.S. 1011 (1987) ........ PS 21

We US. GRO CIID onc oe cincannuusaseeeee aan 15

GES US. 1 CHRMO oc ce vadcisen wa bh eee 13, 22

New Jersey v. New York:

ee ee Be 19

SIS UB. SRC CIGD ov cc kc ceisccavccaee eee 19

GSS UE. FET CHRD. «nck sicuse, iceae aan 13

New Jersey v. New York City, 290 U.S. 237 (1933) .. 15, 16

Ohio v. Kentucky, 410 U.S. 641 (1973) 6. ee eee 22

Texas v. New Mexico:

GRE US. GRO CRD nk vv nwiivessucces -. «- 13, 19,20

SUD. FOGG) ocaeadciasccactae 2 os Oe ees

United States v. Alaska:

Gam U2. BER C Ee? cas Cevsucuennexs ‘~ +6 eee 19

Bi 0.8, EGR CRESS) el cree 19, 20

GSE US. CCS CRS) oso new cece 19, 20

COG U5. GE CED a skids ones cnabceuenens eee 19

United States v. California, 3382 U.S. 19 (1947) .. 2.0... 19

Virginia v. West Virginia, 206 U.S. 290 (1907) ........ 13

Wisconsin v. Illinois, 287 U.S. 568 (1982) ........... 15

Itt

Cases—Continued: Page

Wyoming v. Colorado:

I ss ese cecses cccee 13, 14, 15

a ecccccccces

Constitution, statutes, and rules:

U.S. Const.:

Eg ae cc gs ce ba pececaccaccses

5 | & ¢ | Sa Se nae e SEA AGO Maas

Act of Aug. 18, 1941, ch. 377, 55 Stat. 646 .. 2.20.02...

Act of Aug. 4, 1942, ch. 545, 56 Stat. 736 .......0.0...

Act of May 26, 1943, ch. 104, 57 Stat. 86 ........0=0....

Republican River Compact, 57 Stat. 86:

eee ee cee. 7... hho a es ae 'e'acw 0%

a cian ka kcesccsccccccs

NE A

Colo. Rev. Stat. Ann. §§ 37-67-101 et seq. (West 2010) ..

eu fee. SOUS (IGO7) «ww. ee cee

2A Neb. Rev. Stat. Appx. § 1-106 (2008) .............

ck ois ccc a ceicensccccecs

Sup. Ct. R.:

ee nt eke kecleseceees

ek a kkk clash caecencs

Miscellaneous:

Bureau of Reclamation, U.S. Dep’t of the Interior:

Project Investigations Report No. 41 (1940) .......

Miscellaneous—Continued: Page

Resource Management Assessment: Republican

River Basin (July 1996) 2.2. ..00000.000.000.. 2, 6,17

88 Cong. Rec. 3285-3286 (1942) 220. eee 4

89 Cong. Rec. (1943):

pp. 38549-8551 0 2. cee eee 4

Pp. 4534-45386 2 cee ce ee ee ee 4

A bbs eaaes Kecerrnene. neecsiianeeriviaweds 4

Flood Control in the Basin of the Republican River:

Hearing on S. 649 Before the Senate Comm. on

Irrigation and Reclamation, 78th Cong., Ist

ON, CEE + 0 9 5565.05 544400906euR nase se nieesetes 4

HDR Consultants, Hydrologic Trends and

Correlations in the Republican River Basin in

Nebraska (June 2006) .......0000.000000.000.2005. 17

H.R. 1679, 78th Cong., Ist Sess. (1943) .. 200000002. Toes

H.R. 2482, 78th Cong., Ist Sess. (1943) 22.0.0 00 00000... 4

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

H.R. Doe. No. 842, 76th Cong., 3d Sess. (1940) ........ 3

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

H.R. Rep. No. 375, 78th Cong., Ist Sess. (1943) ......... 4

Nebraska Dep’t of Natural Res.:

Order Adopting Middle Republican Natural

Resources District Integrated Management

Plan & Associated Surface Water Controls

Cs SEE: ésdcgtiu Gunives aveatho Phedd 18

Order Adopting Upper Republican Natural

Resources District Integrated Management

Plan & Associated Surface Water Controls

SO TOY 6 os Sawin dius CanGbdacke oes 18

Miscellaneous— Continued: Page

Republican River Compact Admin.:

First Annual Report for the Year 1960 A961) 6... 6

25th Annual Report (1985)... wc ccc neces 7

Republican River Compact: Hearings on H.R. 1679

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

Irrigation and Reclamation, 78th Cong., Ist

PLU cect w case c shee errr etre erecta etre. 4

S. 649, 78th Cong., Ist Sess. (1943) .................. 4

S. Doc. No. 247, 78th Cong., 2d Sess. (1944) ........00.... 6

S. Rep. No. 152, 78th Cong., Ist Sess. (1943) 2.2 ...0.... 4

Jn the Supreme Court of the Gnited States

No. 126, Original

STATE OF KANSAS, PLAINTIFF

STATE OF NEBRASKA AND STATE OF COLORADO

ON MOTION FOR LEAVE TO PETITION

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is filed in response to the order of this

Court inviting the Acting Solicitor General to express

the views of the United States. In the view of the

United States, Kansas’s motion for leave to file a peti-

tion should be granted. Nebraska should be invited to

file a motion to dismiss to clarify what remedies are

available to Kansas for Nebraska’s alleged violation of

the Compact. Nebraska should also be provided an op-

portunity to file a motion to assert its own claims against

Kansas.

STATEMENT

The State of Kansas seeks leave to file a petition for

the enforcement of the Final Settlement Stipulation

(FSS) entered into by Kansas, Nebraska, and Colorado,

and approved by the Court in its Decree of May 19,

2008. See Pet. App. B1-B57. In 1998, Kansas filed a

complaint to enforce its rights under the Republican

River Compact (Compact), which was approved by Con-

(1)

gress in the Act of May 26, 19438, ch. 104, 57 Stat. 86.

See Pet. App. Al-Al6. The FSS incorporates proce-

dures to calculate each State’s allocation, and estab-

lishes each State’s requirements for Compact compli-

ance. /d. at B26-B47.

A. The Republican River Basin

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

watershed, approximately 430 miles in length, that en-

compasses parts of northeastern Colorado (7700 square

miles), southwestern Nebraska (9700 square miles), and

northern Kansas (7500 square miles). The Republican

River originates in Colorado at the junction of the

Arikaree and North Fork Republican Rivers, then flows

northeast through the northwest corner of Kansas. The

river crosses into Nebraska near Haigler, Nebraska,

flows east across southwestern Nebraska, then crosses

back into Kansas south of Hardy, Nebraska. From

there, it flows southeasterly to Junction City, Kansas,

where it joins the Smoky Hilti River to form the Kansas

River. The Basin includes numerous smaller streams

that flow into the Republican River. The Basin, which is

part of the Great Plains, is sparsely populated. It con-

tains fertile farmland and typically receives from 18 to

30 inches of precipitation per year. See Bureau of Ree-

lamation, U.S. Dep’t of the Interior, Resource Manage-

ment Assessment: Republican River Basin 3-6, 43, 44-

48 (July 1996) (Resource Management Assessment) (a

copy of this report was lodged with the Clerk of the

Court in the 1998 proceeding in this case).

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

rado, Kansas, and Nebraska, developed an interest in

harnessing the water resources of the Republican River

Basin. The Basin had experienced an extended drought,

interrupted in 1935 by a deadly and destructive flood.

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) (Corps of Engineers prelimi-

nary examination of Republican River); see also H.R.

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

States Army Corps of Engineers (Corps) preliminary

examination of Kansas River, discussing irrigation po-

tential in Republican River Basin). Based on the Corps’

recommendations, Congress authorized appropriations

to construct the Harlan County Reservoir for flood con-

trol purposes in Nebraska, a short distance upstream

from where the Republican River flows back into Kan-

sas. See Act of Aug. 18, 1941, ch. 377, 55 Stat. 646.

During this time, the Interior Department’s Bureau

of Reclamation, which has primary responsibility for

irrigation projects, also examined the Republican River

Basin. See Bureau of Reclamation, U.S. Dep’t of the

Interior, Project Investigations Report No. 41, at 1-2

(1940). The Bureau concluded that development of fed-

eral irrigation projects in the Basin would be feasible.

Id. at A-D (Synopsis). The Bureau indicated, however,

that those projects should not be constructed until the

three States had agreed to an 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 use of water.”). Colorado, Kansas,

and Nebraska had been discussing the possibility of an

interstate compact for several years, and they thereafter

entered into negotiations over a potential compact.

B. The Compact Approval Process

The initial attempt to negotiate a compact met objec-

tions by federal agencies and failed when President Roo-

sevelt vetoed the legislation necessary to approve the

compact under the Constitution. U.S. Const. Art. I,

§ 10, Cl. 3; see 88 Cong. Rec. 3285-38286 (1942); H.R.

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

Following the President’s veto, Congress enacted legis-

lation authorizing the States to conduct further negotia-

tions, with participation by a federal representative. Act

of Aug. 4, 1942, ch. 545, 56 Stat. 736. The state commis-

sioners and the federal representative completed their

negotiations on December 31, 1942, and the legislatures

of Colorado, Kansas, and Nebraska ratified the pro-

posed compact. Colo. Rev. Stat. Ann. §§ 37-67-101 et

seq. (West 2010); Kan. Stat. Ann. § 82a-518 (1997); 2A

Neb. Rev. Stat. Appx. § 1-106 (2008). Congress held

hearings and enacted legislation approving the Compact,

which the President signed. Act of May 26, 1943, ch.

104, 57 Stat. 86.'

C. The Republican River Compact

The Republican River Compact comprises 11 Articles

that allocate the water supply of the Basin among Colo-

' 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 Sen-

ate Comm. on Irrigation and Reclamation, 78th Cong., Ist Sess.

(1943); Republican River Compact: Hearings on H.R. 1679 and H.R.

2482 Before the House Comm. on Irrigation and Reclamation, 78th

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

H.R. Rep. No. 375, 78th Cong., Ist Sess. (1943); 89 Cong. Rec. 3549-

3051 (1943) (Senate passage); id. at 4534-4536 (House passage); id. at

4907 (Presidential approval).

rado, Kansas, and Nebraska. Specifically, the Compact

quantifies the Basin’s “virgin water supply,” which is

defined as “the water supply within the Basin unde-

pleted by the activities of man.” Compact Art. IT; Pet.

App. A4. The Compact prescribes the specific quantities

of the virgin water supply, in acre-feet per year, that

each State is allocated for “Beneficial Consumptive

Use,” which is defined as “that use by which the water

supply of the Basin is consumed through the activities of

man * * * jnelud[ing] water consumed by evaporation

from any reservoir, canal, ditch, or irrigated area.”

Tbid.

Article IV sets out the allocation to each State for

each of the Basin’s drainage areas. Compact Art. 1V;

Pet. App. A5-A&8. Article IV allocates the entire esti-

mated water supply, giving Colorado an aggregate of

54,100 acre-feet per year, Kansas an aggregate of

190,300 acre-feet per year, and Nebraska an aggregate

of 234,500 acre-feet per year. Pet. App. A5-A7. In addi-

tion, Article 1V recognizes that Kansas is entitled to

“the entire water supply originating in the Basin down-

stream from the lowest crossing of the river at the

Nebraska-Kansas state line.” /bid.

Article IX obligates the States to administer the

Compact through appropriate officials and “to collect

and correlate through such officials the data necessary

for the proper administration of the provisions of this

compact.” Pet. App. All. In accordance with Article

IX, the States formed the Republican River Compact

Administration (RRCA). The RRCA is comprised of the

chief water official of each State, and “may, by unani-

mous action, adopt rules and regulations consistent with

the provisions of th{e] compact.” /bid. The RRCA com-

putes the Basin’s annual virgin water supply, which al-

lows the States to determine, retrospectively, whether

each State has stayed within its allocation. See RRCA,

First Annual Report for the Year 1960 (1961).

D. Post-Compact Federal Development

The Compact water allocations provided a basis for

final planning of a system of federal reservoir and irri-

gation projects to assist each of the States in developing

its allocated share of the Republican River. Congress

authorized a system of projects as part of the Missouri

River Basin Development Program. See Flood Control

Act of 1944, ch. 665, § 9, 58 Stat. 891. That Program,

also known as the Pick-Sloan Plan, authorized the Corps

of Engineers and the Bureau of Reclamation to con-

struct 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 the late 1940s and the 1960s, seven federal

dams and reservoirs were constructed in the Basin

above the Nebraska-Kansas border. Six are Reclama-

tion projects, and Harlan County Reservoir is a Corps

project. The Bureau's projects, operated in conjunction

with the Corps’ Harlan County facilities, have an active

storage capacity of approximately 477,556 acre-feet of

water and provide water to six irrigation districts serv-

ing 110,623 acres of farmland in the Basin. See Re-

source Management Assessment 4-5, 13-23.

E. Previous Litigation And The Final Settlement Stipula-

tion

Beginning in the 1980s and continuing into the 1990s,

Kansas complained to the RRCA that Nebraska was

violating the Compact by allowing increasing groundwa-

ter development. RRCA, 25th Annual Report 7 (1985).

Specifically, Kansas complained that increased ground-

water development in Nebraska was reducing the inflow

of water into Harlan County Reservoir, which provides

a significant part of the deliveries of Republican River

water to Kansas. Br. in Support (Br.) 6. Nebraska took

the position that groundwater pumping was not subject

to the Compact.

In 1999, this Court granted Kansas’s motion for leave

to file a bill of complaint against Nebraska. Kansas v.

Nebraska, 525 U.S. 1101. The Court invited Nebraska

to file a motion to dismiss to test Nebraska's assertion

that groundwater pumping was not subject to the Com-

pact. 527 U.S. 1020 (1999). The Court appointed a Spe-

cial Master and referred the motion to dismiss to him.

528 U.S. 1001 (1999). The Special Master recommended

that Nebraska’s motion to dismiss be denied, concluding

that the Compact encompassed groundwater withdraw-

als that impacted the virgin water supply. See Kansas

v. Nebraska, First Report of the Special Master (Sub-

ject: Nebraska's Motion to Dismiss). The Court denied

Nebraska’s Motion to Dismiss. 530 U.S. 1272 (2000).

The States then began negotiations to resolve the

remaining issues in the suit. Following more than a year

of additional negotiations, the States entered into the

FSS, which was approved by the Court in its Decree of

May 19, 2003. Pet. App. B1-B57; see 538 U.S. 720.

The FSS incorporates procedures to calculate the

virgin water supply and each State’s allocation, and

it establishes each State’s requirements for Compact

compliance. Pet. App. B8-B57. Under the FSS, Nebras-

ka’s compliance requirements include: (1) a five-year

running-average test limiting Nebraska’s beneficial con-

sumptive use to no more than its statewide allocation,

FSS Art. [IV.D, Pet. App. B36; and (2) during water-

short periods (Water-Short Year Administration), an

additional two- or three-year running-average test limit-

ing Nebraska’s beneficial consumptive use above Guide

Rock, Nebraska to no more than Nebraska’s allocation

above Guide Rock plus its share of any unused portion

of Colorado’s allocation. FSS Art. V.B, Pet. App. B38-

B45. Water-Short Year Administration is in effect in

those years in which the projected or actual irrigation

supply is less than 119,000 acre-feet of storage available

for use from Harlan County Reservoir. FSS Art. V.B.1;

Pet. App. B38-B39.

The FSS also includes dispute-resolution provisions.

Those provisions require the States first to submit their

disputes to the RRCA for resolution. FSS Art. VII.A,

Pet. App. B48-B50. If the RRCA cannot reach consen-

sus, the parties may submit the dispute to non-binding

arbitration under Article VII.B. FSS Art. VII.A.7, Pet.

App. B50.

Through six months of additional technical work and

negotiations under the FSS, the States reached agree-

ment on a model for calculating the impacts of ground-

water pumping and depletions in each State, which is

known as the RRCA Groundwater Model. See Final

Report of the Special Master with Certificate of Adop-

tion of RRCA Groundwater Model (Sept. 17, 2003); 540

U.S. 964 (2003) (noting filing of Final Report).

F. The Current Controversy

1. By 2007, several disputes arose among the States

concerning compliance with the FSS. Kansas alleges

that in 2005 and 2006, which was the first water-short

accounting period, Nebraska overused its allocation by

a total of approximately 79,000 acre-feet, in violation of

the FSS and the Compact. Pet. 9-10; Br. 22-24. Kansas

further asserts that—other than in 2007-2009, which

were relatively wet years—Nebraska’s groundwater

pumping has generally remained at or above the levels

that led Kansas to file its complaint in 1998. Pet. 9; Br.

22-24. Nebraska does not dispute that it exceeded its

allocation by an average of approximately 35,505 acre-

feet per year in 2005 and 2006, but discounts the signifi-

cance of doing so, on the ground that compliance was

difficult given the drought conditions at the time. Resp.

Br. 2, 19.

Kansas requested retrospective monetary damages

in the form of disgorgement of Nebraska’s profits from

its overuse. Resp. Br. 8. Kansas also sought prospec-

tive relief to ensure Nebraska’s future compliance, in-

cluding the shutdown of wells within 2'% miles of the

Republican River and its tributaries. /bid. Nebraska

rejected Kansas’s demands, stating that Nebraska had

identified errors that prevented an accurate accounting

of each State’s allocation by as much as 10,000 acre-feet

per year, and that those errors should be corrected be-

fore the parties could determine the extent of the viola-

tion. Jd. at 8-9, 24. As required by Article VII.A of the

FSS, the States presented these issues to the RRCA.

Br. 12; Resp. Br. 9. The RRCA could not reach a con-

sensus on either issue.

2. Pursuant to Article VII.A.7 of the FSS, Kansas

and Nebraska submitted their claims to non-binding

arbitration before a mutually selected arbitrator. In an

effort to narrow the scope of the proceedings, the arbi-

trator requested that the parties address several prelim-

inary issues. Resp. App. 25-27. One was whether Ne-

braska was “subject to remedies for civil contempt of

court, including disgorgement of Nebraska’s gains as

monetary sanctions,” or whether “any damages awarded

to Kansas [should] be limited to actual damages.” /d. at

26. The arbitrator concluded that any damages awarded

to Kansas should be limited to actual damages. /d. at

51-61. After a hearing, the arbitrator concluded that

Kansas “[cllearly * * * incurred damages resulting

from Nebraska's overuse of water in 2005 and 2006], |

and those damages may well be in the range of one to

several million dollars.” /d. at 96. However, the arbitra-

tor concluded that Kansas failed adequately to prove its

damages and awarded only $10,000 in nominal damages.

Id. at 96-97. The arbitrator noted that because the arbi-

tration was non-binding, Kansas could submit additional

proof “in arbitration supplemental to this present pro-

ceeding, * * * or such information can be presented

during a determination of damages by the [Supreme]

Court.” /d. at 96.

The arbitrator also requested that the parties ad-

dress at the outset whether Kansas’s “proposed remedy

for future compliance with the Republican River Com-

pact and the [FSS is] a proper subject for this arbitra-

tion, and [whether] the U.S. Supreme Court [can] formu-

late and mandate a remedy for future compliance.”

Resp. App. 26-27. The arbitrator concluded that Kan-

sas’s requests for prospective relief were proper, id. at

61, and that Kansas was entitled to an injunction prohib-

iting Nebraska from exceeding its future allocations, 7d.

at 103. The arbitrator declined to adopt Kansas’s pro-

posed limitation on Nebraska’s groundwater use, con-

cluding that Kansas’s demands were more stringent

than necessary to ensure Nebraska's compliance. /d. at

99. The arbitrator, however, admonished Nebraska to

make further groundwater reductions, stating that Ne-

braska's updated Integrated Management Plans (IMPs),

which called for a 20% reduction in groundwater pump-

ing, were “inadequate to ensure compliance with the

Compact and FSS during prolonged dry-year condi-

tions.” Jd. at 102. The arbitrator also rejected Kansas’s

proposal to appoint a river master to monitor Nebras-

ka’s compliance. /d. at 104.

With regard to Nebraska's proposed corrections to

Compact accounting, the arbitrator concluded that Ne-

braska’s proposals were “problematic” and would not be

adopted. Resp. App. 84. The arbitrator, however, rec-

ommended that the RRCA reconvene the technical

groundwater-modeling team to reevaluate the proce-

dures for determining beneficial consumptive use. /bid.

Both States rejected the arbitrator’s recommendations.

3. Having exhausted the FSS’s alternative dispute

resolution requirements, Kansas filed a motion for leave

to file a petition in this Court. Kansas seeks an order

adjudging Nebraska in contempt of this Court’s 2003

Decree and retrospective monetary damages in the form

of disgorgement of Nebraska’s profits. Pet. 11-12. Kan-

sas also seeks prospective relief, including: an order

enjoining Nebraska from future violations and imposing

preset sanctions for noncompliance, an order reducing

groundwater pumping in Nebraska to a level sufficient

to ensure Nebraska's future compliance, and appoint-

ment of a river master. /d. at 12.

Nebraska responds that Kansas’s claims, standing

alone, do not merit the exercise of the Court’s jurisdic-

tion. Resp. Br. 19-23. Nebraska contends, however,

that the Court should assume jurisdiction to resolve Ne-

braska’s claim that it has discovered an error in the FSS

Accounting Procedures that is causing the RRCA to

miscalculate each State’s allocation by as much as 10,000

acre-feet per year. /d. at 24. Nebraska also contends

that the Court should consider its claim that the Com-

pact accounting procedures must be amended to give

Nebraska credit for any damages it may pay to Kansas

for past violations, which Nebraska submitted to a sepa-

rate non-binding arbitration. /d. at 26-27.°

DISCUSSION

The Court should grant Kansas leave to file its peti-

tion. Kansas alleges an interstate dispute, involving an

alleged violation of this Court’s decree, that is of suffi-

cient importance to warrant this Court’s exercise 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 pro-

vide a mechanism for the parties to address certain

threshold legal issues. Resolution of those issues, which

coul¢e ve placed before the Court in a motion to dismiss,

would significantly narrow the scope of any proceedings

before a Special Master. In addition, the Court should

allow Nebraska to file a motion to assert its own claims

against Kansas if it wishes to pursue those claims before

this Court.

* Shortly before Kansas filed its petition, the States entered into a

second arbitration proceeding, which addressed two issues: (1) Nebras-

ka’s credit accounting issue described above, and (2) the propriety of

Colorado’s proposed Compact Compliance Pipeline (CCP) as a means

of offsetting stream depletions. Resp. Br. 26-27. The arbitrator issued

two decisions on October 7, 2010, in which she generally agreed with

Kansas and did not recommend adopting either proposal. See Arbitra-

tion’s Final Decision on Nebraska Crediting Dispute, http://www.ksda.

gov/includes/document._center/interstate_water_issues/RRC_Docs/

2010 10 07 Pagel decision. Nebraska_crediting.pdf, and Arbitrator’s

Final Decision on Colorado Compliance Pipeline Dispute, http://www.

ksda.gov/includes/document_center/interstate_water_issues/

RRC_Does/2010_10_07_ Pagel decision_Colorado_Pipeline.pdf.

A. Kansas’s Petition Pleads A Controversy That Warrants

The Exercise Of Original Jurisdiction

This Court has original and exclusive jurisdiction

over a case or controversy between States. See U.S.

Const. Art. IIT, § 2, Cl. 2; 28 U.S.C. 1251(a). That juris-

diction “extends 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, 523 U.S. 767,

771-772 (1998); Kansas v. Colorado, 514 U.S. 673 (1995);

Virginia v. West Virginia, 206 U.S. 290, 317- 319 (1907).

The Court has determined that its exercise of original

jurisdiction is “obligatory only in appropriate cases.”

Mississippi v. Louisiana, 506 U.S. 73, 76 (1992) (cita-

tions omitted); see Nebraska v. Wyoming, 515 U.S. 1,8

(1995); Texas v. New Mexico, 462 U.S. at 570. In decid-

ing whether to grant leave to file in a dispute arising

under its exclusive original jurisdiction, the Court exam-

ines “the nature of the interest of the complaining

State,” focusing on the “seriousness and dignity of the

claim.” Mississippi v. Louisiana, 506 U.S. at 77 (inter-

nal quotations and citations omitted). The Court also

considers “the availability of an alternative forum in

which the issue tendered can be resolved.” Jbid. Apply-

ing those standards, Kansas’s petition presents a matter

warranting the exercise of original jurisdiction.

1. In claiming that Nebraska is depriving Kansas of

its lawful share of the water of an interstate river, Kan-

sas asserts a substantial sovereign interest that falls

squarely within the traditional scope of this Court’s

original jurisdiction. See, e.g., Texas v. New Mexico, 462

U.S. at 567; Arizona v. California, 373 U.S. 546 (1963);

Nebraska v. Wyoming, 325 U.S. 589 (1945); Wyoming v.

Colorado, 298 U.S. 573 (1936); Kansas v. Colorado, 185

U.S. 125 (1902). Indeed, the Court has previously grant-

ed Kansas leave to file a complaint in this very case,

Kansas v. Nebraska, 525 U.S. 1101 (1999), and Kansas

now alleges that Nebraska has violated the FSS that

was approved in the Court’s final decree.

a. Kansas is entitled to prove its retrospective dam-

ages for Nebraska’s alleged violations of the Compact

and the FSS. The Compact places enforceable limita-

tions on the compacting States’ consumption of water

that is diverted from streams within the Basin. The

Court has recognized that it has power to adjudicate

disputes among the States and “to provide one State a

remedy for the breach of another.” Texas v. New Mex-

ico, 482 U.S. 124, 128 (1987). That power includes “rec-

tifying a failure to perform in the past” under a Com-

pact. /bid.; id. at 129 (“New Mexico cannot escape lia-

bility for what has been adjudicated to be past failures

to perform its duties under the Compact.”).

In addition, even without demonstrating injury, Kan-

sas may be entitled to an order adjudicating Nebraska

in contempt of this Court’s 2003 Decree approving the

FSS. In Wyoming v. Colorado, 309 U.S. 627 (1940), Wy-

oming sought relief for violation of this Court’s decree

apportioning an interstate stream by limiting withdraw-

als in Colevrado. See Wyoming v. Colorado, 298 U.S. 573

(1936). The Court rejected Colorado’s defense that Wy-

oming had not been injured, explaining that the Court’s

decree had “fixed the amount of water” to which each

State was entitled, and that Colorado was “bound by the

decree not to permit a greater withdrawal.” /d. at 581.

The Court concluded that if Colorado violated the de-

cree, it was “not entitled to raise any question as to in-

jury to Wyoming when the latter insists upon her adju-

dicated rights,” and that even if no injury was shown, “it

would be [the Court’s] duty to grant the petition of Wyo-

ming and to adjudge Colorado in contempt for her viola-

tion of the decree.” [bid.”

Although they disagree about the extent of the viola-

tion, the States agree that Nebraska exceeded its Com-

pact allocation during 2005 and 2006, which is a violation

of this Court’s Decree approving the FSS. Pet. 9-10; Br.

22-24; Resp. Br. 2, 19. The States cannot agree on what

damages are appropriate for that violation, and the

States have attempted to resolve the dispute through

the FSS’s dispute-resolution mechanism. As the arbi-

trator recognized, the next step is for Kansas to seek a

determination of damages in this Court. Resp. App. 96.

b. The issue of Kansas’s entitlement to prospective

remedies to ensure Nebraska's future compliance with

the Compact and the FSS is also a proper subject for

this Court’s consideration, although it is unclear wheth-

er such remedies are warranted at this time. Kansas

seeks several prospective remedies, including an order

enjoining Nebraska from future violations and imposing

preset sanctions for noncompliance; an order directing

Nebraska to reduce groundwater pumping to a degree

sufficient to ensure compliance; and the appointment of

ariver master. Pet. 12-13.

* See also Nebraska v. Wyoming, OT U.S. 584, 589, 592 (1993)

(granting Nebraska leave to file petition to enforce 1945 Decree appor-

tioning Platte River and holding that in an action enforcing an inter-

state apportionment, “the plaintiff need not show injury”); New Jersey

v. New York City, 29) U.S. 237 (1933) (granting New Jersey leave to

file petition for order to show cause why New York City should not be

held in contempt for violating Court’s 1931 Decree enjoining City from

dumping garbage off New Jersey’s coast); Wisconsin v. [llinois, 287

U.S. 568 (1982) (granting Wisconsin’s request for rule to show cause

why Illinois had not taken appropriate steps to effect compliance with

requirements of Court’s decree).

This Court has previously granted relief enjoining a

State from violating a compact and delineating preset

sanctions for future violations. In New Jersey v. New

York City, 290 U.S. 237 (1933), the Court enjoined New

York City from dumping garbage off the coast of New

Jersey in violation of an earlier decree and specifying

that if the City failed to comply with the injunction, it

“shall pay to |New Jersey] $5,000 a day until it does so

comply.” /d. at 240. Kansas cites no other examples of

preset sanctions, and the arbitrator in this case deter-

mined that preset sanctions would not be appropriate,

Resp. App. 103, but the decision whether to impose such

sanctions of course remains this Court’s prerogative.

Kansas’s other demands for prospective relief are

similarly available in principle, even if they might prove

to be unwarranted in this case. Specifically, the Court

would need to consider whether Kansas’s request (Pet.

12) that the Court order Nebraska “to reduce groundwa-

ter pumping * * * sufficient to ensure Decree compli-

ance in the future” is appropriate under the FSS. The

FSS is “a legal document that must be construed and

applied in accordance with its terms,” Texas v. New

Mexico, 482 U.S. at 128 (citations omitted), and the FSS

allows Nebraska to come into compliance with its Com-

pact obligations in a variety of ways. Thus, Article V.B.2

of the FSS states that during water-short years, Ne-

braska “may use one or more” of several listed measures

to come into compliance with the limitations imposed on

its consumptive beneficial use, only one of which is ad-

justing groundwater use. Other options include supple-

menting the surface water supply, leasing water rights,

and implementing “any other measure that would help

Nebraska limit Computed Beneficial Consumptive Use

above Guide Rock to not more than that portion of Ne-

braska’s allocation.” Pet. App. B40-B41. Similarly, al-

though the Court has previously appointed a river mas-

ter to monitor and ensure compliance with an interstate

compact, see, e.g., Texas v. New Mexico, 482 U.S. at 134,

the Court has “taken a distinctly jaundiced view of ap-

pointing an agent or functionary to implement [its] de-

crees.” I[bid.; see also Kansas v. Colorado, 543 U.S. &6,

93 (2004) (refusing to appoint river master, in part be-

cause parties could resolve disputes through arbitra-

tion).

Regardless of whether Kansas’s requests for injunc-

tive relief would ultimately be awarded, this Court has

power to impose prospective remedies to enforce an in-

terstate compact or consent decree, see, e.g., Texas v.

New Mexico, 482 U.S. at 132-133, and some prospective

remedies may be warranted in this case. Surface water

flows in the Basin have declined significantly since the

mid-1960s, and inflows to federal reservoirs in the Basin

have declined steadily. Resource Management Assess-

ment 13-15. There is a strong correlation between the

decline in surface flow and the increase of groundwater

well-development in Nebraska. HDR Consultants, Hy-

drologic Trends and Correlations in the Republican

River Basin in Nebraska 1-14 (June 2006) (prepared for

Neb. Dep’t of Natural Resources).

Nebraska’s noncompliance with its compact obliga-

tions has negative impacts on the interests of the United

States. Further decline in irrigation water supply could

cause water users to default on repayment and water-

supply contracts with the United States, thus potentially

reducing revenues needed to repay project costs associ-

ated with those contracts. Further, if the Bureau cannot

exercise its state-held water rights to provide a water

supply to irrigation districts as required by its repay-

ment contracts, those water rights could be injured. In

addition to these risks, a decline in water supply harms

fish, wildlife, and recreation in federal reservoirs, thus

reducing the Bureau's ability to deliver the full range of

benefits envisioned and authorized by Congress.

Nebraska contends that Kansas’s requests for pro-

spective remedies are “moot” because Nebraska is cur-

rently developing third-generation IMPs that would

require Nebraska to reduce groundwater pumping even

more than the 20% reduction required by the second-

generation IMPs. Resp. Br. 21-22. It is far from clear

that these further reductions would ensure that Ne-

braska would be able to comply with its Compact obliga-

tions. Reclamation’s analysis concludes that the newest

iterations of the IMPs do not adequately address

groundwater pumping, and may compromise Nebraska's

ability to remain in compliance. See Rep!» App. Al-A2,

A7-Al4 (Reclamation’s statement regarding proposed

IMPs for Upper Republican natural resources district).'

2. The final consideration is whether there is some

other available forum for potential resolution of the dis-

pute. Kansas seeks enforcement of a decree previously

entered by the Court in this case, which is within the

Court’s exclusive original jurisdiction. Kansas and Ne-

* OnSeptember 20, 2010, Nebraska approved | :d-generation IMPs

forthe Upper and Middle Republican Natural Resources Districts. See

Nebraska Dep't of Natural Resources, Order Adopting Upper Repub-

lican Natural Resources District Integrated Management Plan &

Associated Surface Water Controls (Sept. 20, 2010); Nebraska Dep't of

Natural Resources, Order Adopting Middle Republican Natural Re-

sources District Integrated Management Plan & Associated Surface

Water Controls (Sept. 20, 2010). Five of Nebraska’s irrigation districts

have filed administrative appeals of those new requirements, four of

which hold contracts with the Bureau. The Bureau plans to intervene

in those administrative appeals.

braska agree that the RRCA is deadlocked on these is-

sues, and the parties have exhausted the I'SS’s arbitra-

tion requirement. This consideration therefore militates

in favor of the exercise of this Court’s original jurisdic-

tion. See Texas v. New Mexico, 462 U.S. at 568-570.

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

Court Should Provide For Resolution Of Threshold Le-

gal Issues

Upon granting leave to file a petition, the Court typi-

cally directs the defendant to file an answer and then

refers the matter to a Special Master to conduct appro-

priate proceedings. See, e.g., New Jersey v. New York,

511 U.S. 1080 and 513 U.S. 924 (1994); Nebraska v. Wyo-

ming, 479 U.S. 1051 (1987). In certain situations, how-

ever, this Court has resolved preliminary or controlling

legal issues before, or in lieu of, referring the case to a

Special Master. See l/nited States v. Alaska, 499 U.S.

946 (1991); 501 U.S. 1248, 1275 (1991); 5038 U.S. 569

(1992); United States v. California, 382 U.S. 19, 20-24

(1947). This case is one in which the latter course might

be followed.

Nebraska and Kansas disagree over what monetary

damages would be recoverable for past violations of the

Compact and FSS. Specifically, Kansas believes that

the Court should enter an order adjudicating Nebraska

in contempt of this Court’s 2003 decree and requiring

disgorgement of Nebraska’s profits from overusing its

allocation. Pet. 12. Nebraska contends that Kansas may

recover only its actual damages, which it asserts are de

minimis. Resp. Br. 19-20. Nebraska also contends that

Kansas’s requests for prospective relief—which include

an order enjoining Nebraska from future violations and

imposing preset sanctions for noncompliance, an order

directing Nebraska to reduce groundwater pumping to

a degree sufficient to ensure compact compliance, and

the appointment of a river master—are “moot” because

Nebraska has revised the IMPs on which Kansas’s cal-

culations are based to further reduce groundwater

pumping, and Nebraska maintains that it is taking mea-

sures to ensure that it will be in compliance with the

FSS in the future. Resp. Br. 16-17, 20-23. 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

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

12(b)(6). Although the Federal Rules are not strictly

applicable here, they provide a guide to the Court’s pro-

ceedings. See Sup. Ct. R. 17.2. The Court may wish to

apply the procedure suggested by Rule 12(b)(6) to facili-

tate the disposition of this action. See, e.g., Kansas v.

Nebraska, 527 U.S. 1020 (1999). The arbitrator followed

a similar course in this case. Resp. App. 24-27 (identify-

ing preliminary legal issues before proceeding to eviden-

tiary hearing).

If the Court concludes that the Compact and FSS do

not authorize some or all forms of damages that Kansas

has demanded, the Court can issue an order that signifi-

cantly limits the scope of any subsequent damages hear-

ing conducted before a Special Master. The Court’s de-

cision would assist in managing discovery and trial, and

might encourage renewed negotiations and settlement.

See Teras v. New Mexico, 462 U.S. at 574-576.

Because the Court uses the Federal Rules of Civil

Procedure as merely a guide to the conduct of original

actions, it may tailor appropriate procedures to facilitate

its decision-making process. See Alaska, 501 U.S. at

1248; Alaska, 501 U.S. at 1275. We therefore suggest

that, if the Court decides to grant Nebraska leave to file

a motion to dismiss, the Court may wish to identify

grounds, drawn from the filings thus far, that might be

addressed in such a motion. See pp. 15-18, supra. If the

Court invites the filing of such a motion, and once appro-

priate responses are filed, the Court could decide at that

point to refer the motion to a Special Master to consider

in the first instance.

C. Nebraska Should Be Kequired To File A Motion If It

Wishes To Prosecute A Counterclaim

In its response to Kansas’s petition, Nebraska as-

serts that the Court should assume jurisdiction to adju-

dicate other disputes between the States concerning

Compact administration. Specifically, Nebraska con-

tends the Court should resolve the dispute raised by

Nebraska in the 2008 arbitration concerning putative

errors in the Compact accounting procedures, and the

dispute raised by Nebraska in the 2010 arbitration that

the Compact accounting procedures should be amended

to give Nebraska credit for any damages that it may pay

to Kansas for past violations. Resp. Br. 24-27.”

It is premature to address whether the Court should

resolve these additional issues. Although it is clear that

appropriate counterclaims may be filed in an original

action, see, e.g., Nebraska v. Wyoming, 481 U.S. 1011

(1987), Nebraska has not filed a motion seeking leave to

file counterclaims articulating their bases and demon-

strating why they should be joined in this action. See

Sup. Ct. R. 17.3 (requiring an “initial pleading * * *

preceded by a motion for leave to file”). The Court has

° Nebraska suggests that Colorado is likely to make its own request

to have the CCP issue included in this action. Resp. Br. 27. However,

Colorado has not yet made such a request.

declared that these initial pleading requirements

“servie] an important gatekeeping function” in original

actions. Nebraska v. Wyoming, 515 U.S. 1, 8 (1995) (ci-

tations omitted); see also Ohio v. Kentucky, 410 U.S.

641, 644 (1973) (“|T]he requirement of a motion for leave

to file a complaint, and the requirement of a brief in op-

position, permit and enable us to dispose of matters at a

preliminary stage.”) (citations omitted).

Without a pleading that enunciates Nebraska’s spe-

cific allegations and prayer for relief, the Court cannot

determine precisely what factual and legal issues Ne-

braska would raise. Thus, the Court could not address

at this stage whether Nebraska’s contentions bear a

sufficient relationship to Kansas’s claims to be joined in

this proceeding. Cf. Nebraska v. Wyoming, 515 U.S. at

8 (“[P]roposed pleading amendments must be scruti-

nized closely in the first instance to see whether they

would take the litigation beyond what we reasonably

anticipated when we granted leave to file the initial

pleadings.”) (citations omitted). Accordingly, Nebraska

should be required to file an appropriate motion if it

wishes to prosecute a counterclaim.

CONCLUSION

Kansas should be granted leave to file its petition.

Nebraska should be invited to file a motion to dismiss to

clarify what retrospective and prospective remedies are

available to Kansas for Nebraska’s alleged violation of

the Compact and 2003 decree, and Nebraska should be

provided an opportunity to file a motion asserting its

own claims against Kansas if it wishes to pursue them

here.

Respectfully submitted.