Exception — Sisson v. Helms

Supreme Court brief1985

Ask Donna

What actually matters in this document.

Text

Supreme Court of the Un

October Term, 199% me

STATE OF KANSAS, ees.

Plaintiff, ie

Vv.

STATE OF COLORADO,

Defendant,

- UNITED STATES OF AMERICA,

Defendant-Intervenor.

COLORADO’S EXCEPTIONS TO THE SECOND

“REPORT OF THE SPECIAL MASTER AND

BRIEF IN SUPPORT THEREOF

Gate A. Norton

Attorney General of Colorado

MartTHA PHILurs ALLBRIGHT

Chief Deputy Attorney General

RicHARD A. WESTFALL

Solicitor General

JoserH C. Sm#n, Jr.

Deputy Attorney General

Caro. D. ANGEL

Senior Assistant Attorney General

Davip W. Rossins

Special Assistant Attorney General

Counsel of Record

Dennis M. MONTGOMERY

Special Assistant Attorney General

Hn & Rossins, P.C.

1441 ~ 18th Street, #100

. Denver, Colorado 80202

Telephone: 303-296-8100

oon Pees seen

is ATE

eee

Weil miee

No. 105, Original

In The.

Supreme Court of the United States

‘October Term, 1997

STATE OF KANSAS, -

Plaintiff,

STATE OF COLORADO,

. Defendant,

UNITED STATES OF AMERICA,

Defendant-Intervenor.

COLORADO’S EXCEPTIONS TO THE ;

SECOND REPORT OF THE SPECIAL MASTER

— o

The State of Colorado respectfully files the following

exceptions to the Second Report of Special Master Arthur

L. Littleworth dated September 1997:

1. Colorado excepts to the Special Master’s recom-

mendation that if the remedy in this case includes money

damages, the 11th Amendment to the United States Con-

stitution does not preclude damages to the State of Kan-

sas from being based, in part, on losses incurred by water

users in Kansas.

2. Colorado excepts to the Special Master’s recom-

mendation that the unliquidated nature of Kansas’ claim

for damages does not bar the award of prejudgment QUESTIONS PRESENTED

interest. 1. Does the 11th Amendment to the U.S. Constitu-

Respectfully submitted, tion bar the State of Kansas from recovering damages

from the State of Colorado for losses sustained by indi-

Gate A. Norton | vidual water users in Kansas?

Attorney General of Colorado

MartTHA PHILLIPS ALLBRIGHT 2. Is the State of Kansas entitled to recover prejudg-

Chief Deputy Attorney General ment interest on unliquidated damages?

RicHArRD A. WESTFALL

Solicitor General

JoserH C. SmitnH, Jr.

Deputy Attorney General

Carot D. ANGEL

Senior Assistant Attorney General

Davip W. Rossins

Special Assistant Attorney General

Counsel of Record

Dennis M. MONTGOMERY

Special Assistant Attorney General

Hitt & Rossins, P.C.

1441 — 18th Street, #100

Denver, Colorado 80202

Telephone: 303-296-8100

Attorneys for Defendant

State of Colorado

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .............-----00eeee: i

UO ov ca nccnccucdccsennectscccsocenteces 1

STATEMENT OF THE CASE..................-+++- 1

SUMMARY OF ARGUMENT................-.-++-- 6

GEG bh 0 cee ctcdddddancncseccancnsccnccassuc 7

I. THE 11TH AMENDMENT DOES NOT ALLOW

KANSAS TO RECOVER DAMAGES FROM

COLORADO FOR LOSSES SUFFERED BY INDI-

VIDUAL WATER USERS IN KANSAS......... 7

A. THE FACT THAT KANSAS HAS A RIGHT

TO SEEK RELIEF FOR INJURY TO ITS

QUASI-SOVEREIGN INTERESTS DOES

NOT GIVE IT THE RIGHT TO PRESENT

AND ENFORCE INDIVIDUAL CLAIMS OF

SE GE wo ccccesevcecenccessecceesce 9

B. THE SPECIAL MASTER’S RECOMMENDA-

TION IS BASED ON THE MISTAKEN

ASSUMPTION THAT THE 11TH AMEND-

MENT IS NOT A FACTOR IN THIS CASE.. 14

Il. PREJUDGMENT INTEREST SHOULD NOT BE

AWARDED ON KANSAS’ UNLIQUIDATED

CLAIM AGAINST COLORADO............... 24

Ill. THE SPECIAL MASTER’S RULINGS WILL

HAVE FAR-REACHING AND UNINTENDED

CSOD 0 cc ccccnccecceccccccescoeses 27

iii

TABLE OF AUTHORITIES

Page

Cases

Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S.

ee Gc ccnccescescucctbassosdauoeds 13, 16, 20, 28

Atascadero State Hosp. v. Scanlon, 473 U.S. 234

SEU 5 00 Kednenvensavsaccudensessechesesecesonsns 22

Blatchford v. Native Village of Noatak, 501 U.S. 775

SE oo cc ceccackenececdcncsiccsecetstosdensocseces 8

California v. Frito-Lay, Inc., 474 F.2d 774 (9th Cir.

Pere esseecccctcekecnscsconsedessctvecbecseonses 27

City of Milwaukee v. Cement Div., National Gypsum

Sip Se Se BY Se ncccveenenedtesasdscceses 25

Connecticut v. Massachusetts, 282 U.S. 660 (1931) ..... 20

Funkhouser v. J.B. Preston Co., 290 U.S. 163 (1933) .... 25

General Motors Corp. v. Devex Corp., 461 U.S. 648

SPE ac becesnscnssbetadsceceseunacéeuccseenecéace 26

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907) ..9, 16

Hans v. Louisiana, 134 U.S. 1 (1890) .................. 8

Hawaii v. Standard Oil Co., 405 U.S. 251 (1972)... passim

Hinderlider v. La Plata River & Cherry Creek Ditch

Ss See Ce en cue nceckscnsendasteseceés 24

Idaho v. Coeur d'Alene Tribe, __ U.S. __, 117 S.Ct.

2028, 138 L.Ed.2d 438 (1997).................0005- 18

In re Edmond, 934 F.2d 1304 (4th Cir. 1991)....... 27, 28

Kansas v. Colorado, 206 U.S. 46 (1907).............. 9, 17

TABLE OF AUTHORITIES - Continued

Page

Kansas v. Colorado, 475 U.S. 1079 (1986) .............. 2

Kansas v. Colorado, 514 U.S. 675 (1995) ............5-. 3

Loeffler v. Frank, 486 U.S. 549 (1988)................. 26

Maine v. M/V Tamano, 357 F.Supp. 1097 (D. Main

ec cv cdendvccccocnediseusetevecnncedenbéssecens 27

Maryland v. Louisiana, 451 U.S. 725 (1981) ........ 13, 19

Monessen Southwestern R. Co. v. Morgan, 486 U.S.

Be ean nndocnsavedecdccecenecestccecsosseds 25

Nebraska v. Wyoming, 325 U.S. 589 (1945)............ 21

New Hampshire v. Louisiana, 108 U.S. 76 (1883)

90066660660 00s. 0bbE6eRb SeKetebedoenses 8, 9, 10, 17, 23

North Dakota v. Minnesota, 263 U.S. 365 (1923)... passim

Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387

Th. javedubagentudueenshebdededieadaendsuduul 12, 17

Pennsylvania v. Porter, 659 F.2d 306 (3d Cir. 1981) ...27, 28

Pennsylvania v. West Virginia, 262 U.S. 553 (1923) .... 16

Pennsylvania v. New Jersey, 426 U.S. 660 (1976)....... 13

People ex rel. Abrams v. Seneci, 817 F.2d 1015 (2d

Ek DE cuvccudéuuececdennenaueeenancedonnuenosess 27

Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S.

BD Ge oc cesccccccsesecesceccessoseevesesesces 14

Port Authority Trans-Hudson Corp. v. Feeney, 495

US. 299 (1990) .... 22... cece cece eee ip inet eae 21

Principality of Monaco v. Mississippi, 292 U.S. 313

SEED o ccc cccceseesasenccesonscesoceeeecesocescests 8

TABLE OF AUTHORITIES - Continued

Page

Satsky v. Paramount Communications, Inc., 7 F.3d

ee Ge GEE SE vo vdecccteuicécedcscicenacaes 28

Seminole Tribe of Florida v. Florida, 517 U.S. 609

GRU o due vivesvecéeskesnceuesdsssevesese 8, 18, 21, 23

South Dakota v. North Carolina, 192 U.S. 286 (1904) .... 23

Texas v. New Mexico, 462 U.S. 554 (1983) ............ 29

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

Texas v. New Mexico, 494 U.S. 111 (1990) ............ 18

Virginia v. West Virginia, 238 U.S. 202 (1915)......... 24

Wyoming v. Colorado, 259 U.S. 419 (1922) ............ 20

Wyoming v. Colorado, 286 U.S. 494 (1932) ......... 20, 24

Wyoming v. Colorado, 298 U.S. 573 (1936) ............ 20

Wyoming v. Colorado, 309 U.S. 572 (1940)............ 20

STATUTES, TREATISES, AND OTHER AUTHORITIES

United States Constitution, Article III, Section 2..12, 18

BRISA TOA ER 1

| er 26

Arkansas River Compact, Art. I(A), Art. VI(a)(1),

Art. IX-A (printed in Appendix); Act of May 31,

1949, Ch. 155, 63 Stat. 145 (1949) .................. 1

Gee CU, Des GE, BE GS noc cccccevecccscesccnces 8

Michael Malina & Michael D. Blechman, Parens

Patriae Suits for Treble Damages Under the Anti-

trust Laws, 65 N.W.U.L.Rev. 193 (1970)............ 16

TABLE OF AUTHORITIES - Continued

State Protection of Its Economy and Environment, 6

Colum.J.L. & Soc. Probs. 411 (1970)............... 16

REFERENCES TO REPORTS OF SPECIAL MASTER

Report of Arthur L. Littleworth, Special Master

BE BOOED cc cccccces cecccvcccecccceeens 1, 2, 3, 4, 26

Second Report of Arthur L. Littleworth, Special

Master (September 1997)..............----045. passim

BRIEF IN SUPPORT OF

COLORADO’S EXCEPTIONS TO THE SECOND

REPORT OF THE SPECIAL MASTER

The State of Colorado submits this brief in support of

its exceptions to the Second Report of Arthur L. Lit-

tleworth, Special Master.

JURISDICTION

The original jurisdiction of the Court was invoked by

the State of Kansas under Article III, Section 2, of the

United States Constitution and 28 U.S.C. § 1251(a)(1).

e —_

STATEMENT OF THE CASE

This is an action concerning enforcement of the 1949

Arkansas River Compact, an interstate compact appor-

tioning the waters of the Arkansas River between the

States of Colorado and Kansas.' In the decades following

adoption of the Compact, water users in both Colorado

and Kansas continued to develop waters of the Arkansas

River, primarily through increased well pumping. Report

of Arthur L. Littheworth, Special Master (July 1994)

1 The Compact was signed by Commissioners for Colorado

and Kansas on December 14, 1948, and became effective on May

31, 1949, after it was ratified by the legislature of each state and

consented to by Congress. Arkansas River Compact, Art. IX-A

(printed in Appendix); Act of May 31, 1949, Ch. 155, 63 Stat. 145

(1949).

(“First Report”) at 113-15, 304. In 1984, Kansas com-

plained for the first time about post-( ompact well devel-

opment in Colorado.? Id. at 155-50. ‘he Arkansas River

Compact Administration authorized an investigation in

March 1985, but the representatives could not agree on

how to conduct the investigation. Id., App. 51-55.

In December 1985, Kansas filed a motion for leave to

file a complaint against Colorado, which this Court

granted in 1986. Kansas v. Colorado, 475 U.S. 1079 (1986).

The case was bifurcated into a liability and a remedy

phase, and trial on the liability phase began in September

1990 and concluded in December 1992. First Report at

24-25, 28. Experts for Kansas developed a computer

model (the Kansas H-I Model) for the liability phase to

predict diversions of water from the Arkansas River

based on the Colorado priority system and crop

demands, storage and release of water from reservoirs,

consumption of water, return flows, and resulting stream

flows along a 150-mile reach of the Arkansas River from

Pueblo, Colorado, to the Colorado-Kansas Stateline. Id. at

229-34.

The Special Master filed his first Report with the

Court in July 1994 setting forth his conclusions and rec-

ommendations on the liability issues. The Special Master

recommended dismissal of Kansas’ winter water storage

2 Kansas submitted a report to the Arkansas River Compact

Administration concerning possible violations of the Arkansas

River Compact caused by post-Compact well development in

Colorado, the operation of a winter water storage program in

Colorado, and the operation of Trinidad Reservoir. First Report

at 153.

er eee

EL et

Sp nr

and Trinidad Reservoir claims, but found that post-Com-

pact well pumping in Colorado had caused material

depletions to usable Stateline flows in violation of the

Compact, although additional evidence was necessary to

quantify the amount of such depletions. First Report at

43, 263, 335-36. In its May 15, 1995 Opinion, the Court

overruled all exceptions to the first Report, affirmed the

Special Master’s recommendations, and remanded the

case to the Special Master for determination of unre-

solved issues in a manner not inconsistent with the

Court’s opinion. Kansas v. Colorado, 514 U.S. 675 (1995).

Following the Court’s decision, the Special Master set

hearings on two unresolved issues: evaluation of Colo-

rado’s efforts to comply with the Compact and quan-

tification of depletions to usable Stateline flows caused

by post-Compact well pumping in Colorado. Second

Report of Arthur L. Littleworth, Special Master (Septem-

ber 1997) (“Second Report”), App. 1-2. He also required

Kansas to file a statement of its position concerning a

remedy for violations of the Compact, indicating whether

Kansas sought damages in money, water, or a combina-

tion of both. Id., App. 2. Over the course of several

hearings, the Special Master heard testimony from the

Colorado State Engineer about Colorado’s efforts to com-

ply with the Compact. The Special Master described Col-

orado’s compliance efforts as showing “a most

impressive record” and “remarkable” progress. Id. at 47.

At the outset of the hearing scheduled in October

1995, Colorado and Kansas stipulated to the amount of

depletions for the 1950-85 period using the Kansas H-I

Model as it had been revised by the Kansas replacement

experts during the liability phase. Second Report at 11;

see First Report at 28-30, 236-54. It appeared that deple-

tions for the period 1986-94 could be determined rela-

tively easily by updating the data sets needed for the

model. Second Report at 12-13. However, in the course of

updating the model, the Kansas experts discovered

another deficiency — a deficiency which had been pointed

out by Colorado’s experts during the liability phase. Id. at

21-23. The Kansas experts made changes to the H-I

Modei, which Colorado’s experts criticized as selective

and which had the effect of increasing predicted deple-

tions to usable Stateline flows. Id. The nature of the

dispute and the Special Master’s recommendation on the

changes to the H-I Model are set forth in the Second

Report at 12-46. Although Colorado’s experts believe

there are deficiencies in the latest version of the H-I

Model accepted by the Special Master, id. at 38-41, Colo-

rado has not taken an exception to the Special Master’s

recommendation on depletions for the period 1986-94,

preferring instead to accept the Special Master’s invita-

tion to address deficiencies directly in future proceed-

ings. Id. at 37. .

In accordance with the Special Master’s order, Kan-

sas filed a statement of its position regarding a remedy.

Despite the difficulty in determining depletions to usable

Stateline flows during this case, despite the fact that

Kansas did not complain about a Compact violation until

1984, at the earliest, and despite the fact that the Special

Master found that Colorado’s actions were not deliberate

or willful, Second Report at 77-78, Kansas is seeking

money damages for depletions to usable Stateline flows

dating back to 1950, including losses suffered by individ-

ual water users in Kansas and prejudgment interest.

Rees

Colorado asked the Special Master to rule on legal

issues related to Kansas’ claim for money damages to

avoid the time and expense of preparing economic analy-

ses premised on irrelevant damages theories, as had

occurred after the Court's decision in Texas v. New Mexico,

482 U.S. 124 (1987), the first case to hold that money

damages could be awarded as a remedy for breach of an

interstate compact. See Second Report at 80-81. In addi-

tion, Colorado suggested that repayment of past deple-

tions to usable Stateline flows in water rather than money

might be a more equitable remedy, and that a water

remedy would avoid the difficult process of attempting to

determine money damages going back more than 45

years.

In his Second Report, the Special Master concludes

that a suitable remedy may be in terms of money dam-

ages or water and that evidence should be received on a

suitable remedy. Second Report at 72, 113 46. The Special

Master also concludes that if a suitable remedy in this

case should include money damages, the-damages should

be based on Kansas’ loss rather than on any gain by

Colorado, subject to the overriding consideration that the

remedy provide a fair and equitable solution. Id. at 75-84,

113 47. However, the Special Master concludes that if the

remedy includes money damages, the 11th Amendment

does not preclude damages to Kansas from being based,

in part, on losses incurred by its water users, subject to

overall considerations of fairness. Id. at 85-104, 113 48.

Finally, the Special Master concludes that, whether the

remedy includes money damages or repayment in water,

the unliquidated nature of Kansas’ claim does not bar an

award of prejudgment interest and that the possible

award of prejudgment interest will depend upon future

trial proceedings. Id. at 105-11, 113-14 49.

Colorado takes exception to these last two recom-

mendations.

SUMMARY OF ARGUMENT

The Special Master has decided two important issues

of law applicable to controversies between states in a

manner inconsistent with this Court’s precedents and

policy.

First, the Special Master disregards this Court's deci-

sions on the nature of quasi-sovereignty and the protec-

tion afforded to states by the 11th Amendment, and

recommends that if the remedy in this case includes

money damages, Kansas may recover damages from Col-

orado for losses suffered by individual water users in

Kansas. This is directly contrary to the Court's decision in

North Dakota v. Minnesota, 263 U.S. 365 (1923), and is

unsupported by any of the Court’s cases.

Second, relying on a recent case in admiralty law, the

Special Master declines to follow the common-law rule

that prejudgment interest will not be awarded on unliqui-

dated damages, and has determined that prejudgment

interest is not precluded here. This case involves a good-

faith dispute over the effects of well pumping on the

flows at the Colorado-Kansas Stateline, effects which

were not readily apparent, and of which Kansas did not

SEL | Sen nn oh oo

complain until 35 years after the first injury occurred. It is

therefore a particularly inappropriate case for abandon-

ing the traditional rule disallowing prejudgment interest

on unliquidated damages.

Finally, both of the Special Master’s determinations

will have undesirable broader consequences. The Special

Master’s expansion of the concept of quasi-sovereignty

will lead to confusion and increase the risk of double

recoveries in other cases where a state represents its

quasi-sovereign interests. Further, the unprecedented and

unanticipated expansion of liability for breach of an inter-

state compact will discourage states from resolving their

differences through interstate compacts and will encour-

age litigation between states in this Court.

ARGUMENT

I. THE 11TH AMENDMENT DOES NOT ALLOW

KANSAS TO RECOVER DAMAGES FROM COLO-

RADO FOR LOSSES SUFFERED BY INDIVIDUAL

WATER USERS IN KANSAS

The issue in this case is whether, in an original action

by one state against another for violation of an interstate

compact apportioning the waters of an interstate river,

the 11th Amendment permits the plaintiff state to recover

damages from the defendant state for losses suffered by

individual water users in the plaintiff state. This Court

has understood the 11th Amendment “to stand not so

much for what it says, but for the presupposition which it

confirms;” namely, that “federal jurisdiction over suits

against unconsenting States ‘was not contemplated by the

Constitution when establishing the judicial power of the

United States.’ ” Seminole Tribe of Florida v. Florida, 517

U.S. 609, __, 116 S.Ct. 1114, 1122, 134 L.Ed.2d 252, 265

(1996), quoting Blatchford v. Native Village of Noatak, 501

U.S. 775, 779 (1991), and Hans v. Louisiana, 134 U.S. 1, 15

(1890).3 On the other hand, there is no dispute that the

framers of the Constitution intended that this Court

would have original jurisdiction over controversies

between states and that there would be a surrender of

state sovereign immunity to such actions. Principality of

Monaco v. Mississippi, 292 U.S. 313, 328 (1934); The Federal-

ist, No. 80, No. 81.

As the Special Master recognizes, this Court’s deci-

sions make it clear that if Kansas were suing to recover

damages which would be directly turned over to its citi-

zens, the claim would be barred by the 11th Amendment.

E.g., North Dakota v. Minnesota, 263 U.S. 365 (1923); New

Hampshire v. Louisiana, 108 U.S. 76 (1883); Second Report

at 90-91, 95. The Special Master distinguishes such cases

on the basis that the recovery in this instance would not

go to the individuals, but instead would be paid to Kan-

sas. Id. at 88-89. In Colorado’s view, the Special Master’s

conclusion circumvents the constitutional limitation

placed on federal jurisdiction by the 11th Amendment

3 The 11th Amendment states:

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.

and is based on a theory of sovereign trusteeship that has

been rejected in other cases.

A. THE FACT THAT KANSAS HAS A RIGHT TO

SEEK RELIEF FOR INJURY TO ITS QUASI-

SOVEREIGN INTERESTS VOES NOT GIVE IT

THE RIGHT TO PRESENT AND ENFORCE

INDIVIDUAL CLAIMS OF ITS CITIZENS.

Colorado recognizes that the Court has broad power

to fashion a fair and equitable remedy between the signa-

tory states for past violations of the Arkansas River Com-

pact; however, that power must be exercised within the

limits imposed by the Constitution. Allowing Kansas to

recover losses sustained by individual farmers, as the

Special Master recommends, Second Report at 103, would

circumvent the 11th Amendment and greatly expand the

concept of quasi-sovereignty.

It is well-settled that, in a case such as this, a state's

quasi-sovereign interests are sufficient to support juris-

diction and the issuance of injunctive relief. The interests

which Kansas is empowered to represent in this action,

however, are independent of the interests of individual

citizens. See, e.g., Kansas v. Colorado, 206 U.S. 46, 99 (1907);

Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907).

A state’s right to represent its quasi-sovereign inter-

ests in a controversy between states does not allow a state

to make claims on behalf of individual citizens. This has

been clear since New Hampshire v. Louisiana, 108 U.S. 76

(1883), where citizens of New Hampshire assigned their

claims on bonds issued by the State of Louisiana to the

State of New Hampshire for collection. The Court recog-

nized in that case that the 11th Amendment prevented

the citizens who owned bonds from bringing suit on their

own behalf against the State of Louisiana. 108 U.S. at 88.

Therefore, the Court said, “the real question” was

“whether a state can allow the use of its name in such a

suit for the benefit of one of its citizens.” Id. First, the

Court rejected the argument that a state could prosecute

such suits as sovereign trustee of its citizens. Id. at 89-90.

Second, the Court rejected the argument that the Consti-

tution granted states the right to prosecute the claims of

their citizens in the federal courts:

The evident purpose of the [11th] "Amendment,

so promptly proposed and finally adopted, was

to prohibit all suits against a State by or for

citizens of other States, or aliens, without the

consent of the State to be sued and, in our

opinion, one State cannot create a controversy

with another State, within the meaning of that

term as used in the judicial clauses of the Con-

stitution, by assuming the prosecution of debts

owing by the other State to its citizens. Such

being the case, we are satisfied that we are prohib-

ited, both by the letter and the spirit of the Constitu-

tion, from entertaining these suits, and the bill in

each of them is, consequently, dismissed.

108 U.S. at 91 (emphasis in original).

These principles were further developed in North

Dakota v. Minnesota, 263 U.S. 365 (1923), where a claim for

damages for losses to individuals was coupled with a

permissible claim by a state for injury to its quasi-sover-

eign interests. There, North Dakota sought both an

injunction and damages for flooding allegedly caused by

drainage ditches in Minnesota. The Court found that

North Dakota could seek an injunction against operation

of the Minnesota ditches:

[W]here one state by a change in its method of

draining water from lands within its border

increases the flow into an interstate stream, so

that its natural capacity is greatly exceeded and

the water is thrown upon the farms of another

state, the latter state has such an interest as quasi

sovereign in the comfort, health, and prosperity of

her farm owners that resort may be had to this

court for relief. It is the creation of a public

nuisance of simple type for which a state may

properly ask an injunction.

Id. at 374 (emphasis added). However, the Court held that

North Dakota could not recover damages for losses to its

inhabitants whose farms were flooded and whose crops

were lost:

North Dakota, in addition to an injunction,

seeks a decree against Minnesota for damages of

$5,000 for itself and of $1,000,000 for its inhabi-

tants whose farms were injured and whose

crops were lost. It is difficult to see how we can

grant a decree in favor of North Dakota for the

benefit of individuals against the state of Minne-

sota in view of the Eleventh Amendment to the

Constitution, which forbids the extension of the

judicial power of the United States to any suit in

law or equity prosecuted against any one of the

United States by citizens of another state or by

citizens and subjects of a foreign state.

.. . The right of a state as parens patriae to bring

suit to protect the general comfort, health, or prop-

erty rights of its inhabitants threatened by the pro-

posed or continued action of another state by prayer

for injunction is to be differentiated from its lost

power as a sovereign to present and enforce individ-

ual claims of its citizens as their trustee against a

sister state. For this reason the prayer for a

money decree for the damage done by the

floods of 1915 and 1916 to the farms of individ-

uals in the Bois de Sioux valley is denied for

lack of jurisdiction.

Id. at 374-76 (emphasis added).*

The Court has repeatedly reaffirmed the distinction

between proper parens patriae actions by states to vindi-

cate quasi-sovereign interests and improper attempts by

states to recover on claims of individual citizens. For

example, in Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387

(1938)5, the Court dismissed Oklahoma’s attempt to

recover assets from out-of-state shareholders of an insol-

vent bank on behalf of depositors. Although the state had

assumed control of and title to the bank’s assets, the

Court found that the original jurisdiction proceeding was

not proper:

* The Court reviewed North Dakota’s request for an

injunction and for $5,000 in damages to the state on the merits,

and found that North Dakota had not proven that Minnesota

was responsible for the flooding. 263 U.S. at 388.

5 Oklahoma v. Cook dealt solely with the Court's jurisdiction

over cases in which a state is a party under Art. III, § 2, cl. 2. of

the U.S. Constitution and not with 11th Amendment immunity,

but the nature of the state’s interests is the same in either case.

To bring a case within that jurisdiction, it is not

enough that a State is plaintiff. Nor is it enough

that a State has acquired the legal title to a cause

of action against the defendant, where the

recovery is sought for the benefit of another

who is the real party in interest.

304 U.S. at 392. The Court recognized that a state could

invoke its original jurisdiction to vindicate quasi-sover-

eign interests:

But this principle does not go so far as to permit

resort to our original jurisdiction in the name of

the State but in reality for the benefit of particu-

lar individuals, albeit the State asserts an eco-

nomic interest in the claims and declares their

enforcement to be a matter of state policy.

304 US. at 394. A long line of cases recognizes this

important distinction. Alfred L. Snapp & Son, Inc. v. Puerto

Rico, 458 U.S. 592, 607 (1982); Maryland v. Louisiana, 451

U.S. 725, 745 n.21 (1981) (“[A]n original action between

two States only violates the Eleventh Amendment if the

plaintiff State is actually suing to recover for injuries to

specific individuals.”)®; Pennsylvania v. New Jersey, 426

U.S. 660, 665 (1976) (“[A] State has standing to sue only

when its sovereign or quasi-sovereign interests are impli-

cated and it is not merely litigating as a volunteer the

personal claims of its citizens.”); Hawaii v. Standard Oil

controversy as a nominal party in order to forward the claims of

individual citizens. But it may act as the representative of its

citizens in original actions where the injury alleged affects the

general population of a state in a substantial way.” (citations

omitted)).

Co., 405 U.S. 251, 258 n.12 (1972) (“An action brought by

one State against another violates the Eleventh Amend-

ment if the plaintiff State is actually suing to recover for

injuries to designated individuals.”). To allow Kansas to

recover damages for losses sustained by individual water

users in Kansas would create an unprecedented expan-

sion of the concept of quasi-sovereignty at the expense of

the 11th Amendment and the principle of sovereign

immunity.” :

B. THE SPECIAL MASTER’S RECOMMENDA-

TION IS BASED ON THE MISTAKEN

ASSUMPTION THAT THE 11TH AMEND-

MENT IS NOT A FACTOR IN THIS CASE.

Notwithstanding the above principles, the Special

Master concludes that the 11th Amendment is not a bar-

rier to recovery of damages by Kansas for injuries suf-

fered by individual farmers in Kansas based on the

“fundamental rule” that, once the Court accepts a case

between states as involving sovereignty or quasi-sover-

eignty, “the 11th Amendment is not a factor.” Second

Report at 103. This “rule” misinterprets the Court's prior

decisions, which recognize that a state’s complaint may

raise both proper proprietary or quasi-sovereign claims

and improper claims for the benefit of individuals in one

? There has been no suggestion that Colorado waived its

sovereign immunity to claims by individual water users for

violation of the Compact. Cf. Petty v. Tennessee-Missouri Bridge

Comm'n, 359 U.S. 275 (1950). Indeed, the premise of the Special

Master’s recommendation is that individual water users have

no remedy.

action. For example, North Dakota raised both an

improper claim for damages to individual farmers and a

proper quasi-sovereign claim for injunctive relief to pre-

vent flooding; the Court dismissed the first claim and

considered the merits of the second. North Dakota v. Min-

nesota, 263 U.S. 365, 374-76 (1923). Hawaii raised an

improper claim for economic damages to its citizens and

a proper claim for economic damages to its proprietary

interests, both based on the same monopolistic activities;

the Court dismissed the first and allowed the second to

proceed. Hawaii v. Standard Oil Co., 405 U.S. at 262-64. The

issue of jurisdiction (resolved by the Court’s granting of

Kansas’ motion for leave to file its complaint in this case)

is separate from the issue of remedies, still to be resolved.

This Court’s two-sentence order granting the motion for

leave to file the complaint cannot be read as approving,

sight unseen, any conceivable remedy Kansas might later

request as part of a “proper original action.”

The Special Master gives four reasons for rejecting

Colorado’s argument: (1) the nature of quasi-sovereignty;

(2) the Court’s statements in Texas v. New Mexico, 482 US.

124 (1987); (3) the Laramie River decisions, which used

individual water rights as the basis for an interstate

apportionment; and (4) the lack of any other remedy for

Kansas water users. Second Report at 100-104. Colorado

will deal with each of them in turn.

The Special Master first states that Colorado’s argu-

ment is inconsistent with the basic concept of quasi-

sovereignty because “[q]luasi-sovereignty throws the

mantle of the state itself over the area and people

involved in order to permit a general recovery for them,

albeit the recovery is payable to the state itself.” Second

Report at 101 (emphasis added). This misapprehends the

nature of quasi-sovereignty. This Court has made it clear

that the concept “does not involve the State stepping in to

represent the interests of particular citizens who, for

whatever reason, cannot represent themselves.” Alfred L.

Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600 (1982)8;

North Dakota v. Minnesota, 263 U.S. at 376. Rather, to have

parens patriae standing, the state must assert injury to its

quasi-sovereign interests, Snapp, 458 U.S. at 601, which

have consistently been described as “apart from the inter-

ests of particular private parties,” id. at 607, “apart from

that of the individuals affected,” Pennsylvania v. West

Virginia, 262 U.S. 553, 592 (1923), and “independent of

and behind the titles of [a state’s] citizens.” Snapp, 458

U.S. at 604, quoting Georgia v. Tennessee Copper Co., 206

U.S. 230, 237 (1907).9

® Snapp involved the question of a state (or

commonwealth’s) standing to bring a parens patriae action in

federal district court. The Court recognized that “a more

circumspect inquiry may be required” into such an issue in

original jurisdiction cases between states, to ensure that the 11th

Amendment was not “too easily circumvented.” 458 U.S. at 611

(Brennan, J., concurring); see also id. at 603 n.12.

* The nature of the concept of parens patriae and the

distinction between damages to the state’s parens patriae interest

and citizens’ individual rights is discussed in two excellent law

review articles, Michael Malina & Michael D. Blechman, Parens

Patriae Suits for Treble Damages Under the Antitrust Laws, 65

N.W.U.L.Rev. 193 (1970), and State Protection of Its Economy and

Environment, 6 Colum.J.L. & Soc. Probs. 411 (1970), both of

which are cited in Hawaii v. Standard Oil Co., 405 U.S. at 257.

Both articles persuasively demonstrate that a state’s parens

patriae interest is separate from the individual rights of its

citizens, although quantification of damages to the state’s quasi-

sovereign interest may be difficult.

The interest which Kansas represents in this action is

its quasi-sovereign “interest as a state in this large tract of

land bordering on the Arkansas river. Its prosperity

affects the general welfare of the state.” Kansas v. Colo-

rado, 206 U.S. 46, 99 (1907). A state’s right to present its

quasi-sovereign interest is distinct from its foregone sov-

ereign right to present its citizens’ individual claims as

assignee or trustee. Oklahoma ex rel. Johnson v. Cook, 304

U.S. at 392-93; North Dakota v. Minnesota, 263 U.S. at

374-76; New Hampshire v. Louisiana, 108 U.S. at 91. Inter-

preting quasi-sovereignty to allow Kansas to recover for

losses to individual farmers in Kansas would eliminate

the distinction drawn by the Court between allowable

quasi-sovereign representation and improper sovereign

trusteeship.

The Special Master’s unprecedented definition of

quasi-sovereignty also ignores the difference between

injunctive relief and damages. The overwhelming major-

ity of this Court’s decisions on quasi-sovereignty have

concerned claims for injunctive relief. As this Court has

noted, “[O]ne injunction is as effective as 100; .. . 100

injunctions are no more effective than one.” Hawaii v.

Standard Oil Co., 405 U.S. at 261. The fact that this Court

has approved injunctions to vindicate states’ quasi-sover-

eign interests which also may have benefited private

individuals does not support stretching the mantle of

quasi-sovereignty to include recovery of damages for

injuries to private individuals.

Second, the Special Master states that “the key case

on this subject, Texas v. New Mexico, 482 U.S. 124 (1987),

speaks broadly of providing a remedy for past breaches

[of an interstate compact].” Second Report at 101. The

Special Master also relies heavily on the Court's state-

ment in Texas v. New Mexico that, “[iJn proper original

actions, the Eleventh Amendment is no barrier, for by its

terms, it applies only to suits by citizens against a State.”

Second Report at 102, quoting Texas v. New Mexico, 482

U.S. at 130 (emphasis added). That case, however, simply

determined for the first time that money damages could

be awarded as a remedy for past breaches of an interstate

compact. The Court’s ruling that money damages could

be awarded as a remedy did not address the particular

elements which could be included in the calculation of —

such damages; that was left to the special master in that

case to determine, id. at 132, and was ultimately resolved

by a consent decree. Texas v. New Mexico, 494 U.S. 111

(1990). The Court’s broad statement of its “complete judi-

cial power” to resolve disputes among the states under

the Constitution must therefore be read in light of its

continuing recognition that the 11th Amendment limits

the grant of judicial power under Article III of the Consti-

tution. Idaho v. Coeur d'Alene Tribe, __U.S. __, __, 117

S.Ct. 2028, 2033, 138 L.Ed.2d 438, 447 (1997); Seminole

Tribe of Florida v. Florida, 517 U.S. at __, 116 S.Ct. at 1127,

134 L.Ed.2d at 271; Hawaii v. Standard Oil Co., 405 U.S. at

258-59 n.12 and cases cited therein. The Special Master’s

reasoning confuses the power to resolve disputes

between states with the power to resolve disputes

between private individuals and states, which is con-

strained by the 11th Amendment.

The Special Master also relies on the Court's state-

ment (in response to the argument that money damages

would not benefit the actual injured parties) that “the

State should recover any damages that may be awarded.”

Second Report at 89, quoting Texas v. New Mexico, 482 U.S.

at 132 n.7.!° By referring to “any damages that may be

awarded,” the Court did not determine that Texas could

recover damages for losses suffered by individual

farmers. Rather, it simply recognized that any damages

that Texas recovered for its representation of the “general

public interest,” id., could be spent by Texas as it saw

fit."

10 The Court’s statement was made in the following

context:

Texas counsel suggested that a money judgment

might find its way into the general coffers of the State,

rather than benefit those who were hurt. But the basis

on which Texas was permitted to bring this original

action is that enforcement of the Compact was of such

general public interest that the sovereign State was a

proper plaintiff. See Maryland v. Louisiana, 451 U.S.

725, 735-739 (1981). It is wholly consistent with that

view that the State should recover any damages that

may be awarded, money it would be free to spend in

the way it determines is in the public interest.

482 U.S. at 132 n.7.

11 It would be a strange interpretation of the 11th

Amendment to allow a state to recover money damages for

losses suffered by individuals only if it decides to keep the

money in the state coffers rather than aiding the injured

individuals. Such an interpretation would also be inconsistent

with the determination in Texas v. New Mexico that the state

“would be free to spend [the money] in the way it determines is

in the public interest.” 482 U.S. at 132 n.7. Therefore, the

applicability of the 11th Amendment must depend not on how

the state ultimately spends any damages it may recover, but on

the nature and origin of the claims on which damages are based.

Third, the Special Master reads the Court’s Laramie

River decisions!? as doing “exactly what Colorado now

says it cannot do” because the equitable apportionment

of the Laramie River was based on the prior appropria-

tions of individual water users. Second Report at 94. The

Laramie River cases, however, are consistent with the -

concept of quasi-sovereignty described above. Although

the states’ apportionments were based on use by their

respective water users, they were not the same as those

individual claims.'3 The final decision made this clear by

stating that the apportionment “determine[d] only the

relative rights of the two States,” Wyoming v. Colorado, 309

U.S. 572, 575 (1940), and that each state could determine

in-state uses according to its own laws. Id. at 579-81; see

also Connecticut v. Massachusetts, 282 U.S. 660, 670 (1931).

Thus, the states’ apportionments were “independent of

and behind,” see Snapp, 458 U.S. at 604, those of their

water users.

If the states’ quasi-sovereign interests in the waters

of an interstate stream were simply based on the aggrega-

tion of their citizens’ rights, the Court could not have

declared:

Apportionment calls for the exercise of an

informed judgment on a consideration of many

factors. Priority of appropriation is the guiding

12 Wyoming v. Colorado, 259 U.S. 419 (1922); Wyoming v.

Colorado, 286 U.S. 494 (1932); Wyoming v. Colorado, 298 U.S. 573

(1936); Wyoming v. Colorado, 309 U.S. 572 (1940).

13 The Court held that, as between two states that followed

the prior appropriation doctrine, priority of use should be the

primary basis for determining the relative rights of the states.

Wyoming v. Colorado, 259 U.S. at 470.

—

principle. But physical and climatic conditions,

the consumptive use of water in the several

sections of the river, the character and rate of

return flows, the extent of established uses, the

availability of storage water, the practical effect

of wasteful uses on downstream areas, the dam-

age to upstream areas as compared to-the bene-

fits to downstream areas if a limitation is

imposed on the former — these are all relevant

factors. They are merely an illustrative, not an

exhaustive catalogue. They indicate the nature

of the problem of apportionment and the deli-

cate adjustment of interests which must be

made.

Nebraska v. Wyoming, 325 U.S. 589, 618 (1945).

The Arkansas River Compact does not change the

nature of Kansas’ quasi-sovereign interest in this case.

The Compact settles disputes “between the states of Colo-

rado and Kansas, and between the citizens of one and

citizens of the other state, ...” Arkansas River Compact,

Article I(A). It does not purport to resolve disputes

between the citizens of Kansas and the State of Colorado,

and the 11th Amendment embodies “the background

principle of state sovereign immunity” which precludes

such claims. Seminole Tribe, 517 U.S. at __, 116 S.Ct. at

1131, 134 L.Ed.2d at 276-77.'4 Any waiver of such immu-

nity must be clearly expressed. See Port Authority Trans-

14 See also Seminole Tribe, 517 U.S. at ___ n.13, 116 S.Ct. at

1140 n.13, 134 L.Ed.2d at 288 n.13 (Stevens, J., dissenting) (11th

Amendment designed primarily to prevent states from being

sued for debt collection).

Hudson Corp. v. Feeney, 495 U.S. 299, 305 (1990).'5 Further,

the fact that Colorado’s proposed water remedy may

benefit water users in Kansas does not somehow give

Kansas the right to recover damages from Colorado for

losses suffered by water users in Kansas. Water would be

delivered to Kansas.'© Delivery to, and benefits to, Kansas

water users are matters left to Kansas. Arkansas River

Compact, Article VI(A)(1). This is simply an instance in

which equitable relief obtained by a state in its quasi-

sovereign capacity may benefit private individuals.

Fourth, the Special Master states that Kansas is the

signatory to the Arkansas River Compact and the only

party that can sue to protect the Stateline flows guaran-

teed for use by Kansas water users under the Compact.

Second Report at 103. He concludes that Kansas “would

be a feeble representative” if it could not recover dam-

ages for losses suffered by individual farmers. Id.

The Special Master’s reasoning elevates equitable

considerations above the principle of state sovereign

15 The Court will give effect to a State’s waiver of

Eleventh Amendment immunity only where stated by

the most express language or by such overwhelming

implication from the text as will leave no room for

any other reasonable construction.

Id., quoting Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239

(1985) (quotation marks omitted).

16 The Court said in Texas v. New Mexico that delivering

more water to make up shortfalls “has all the earmarks of

specific performance, an equitable remedy that requires some

attention to the relative benefits and burdens that the parties

may enjoy or suffer as compared with a legal remedy in

damages.” Texas v. New Mexico, 482 U.S. at 131.

immunity embodied in the 11th Amendment, which pre-

vents individual farmers from recovering damages from

Colorado. See Seminole Tribe, 517 U.S. at __, 116 S.Ct. at

1131-32, 134 L.Ed.2d at 276-77. The fact that those claims

are barred does not allow Kansas to recover those losses.

New Hampshire v. Louisiana, 108 U.S. at 91. Rather, it is the

Special Master who disregards the fundamental principle

that “[a]n action brought by one state against another

violates the Eleventh Amendment if the plaintiff State is

actually suing to recover for injuries to designated indi-

viduals.” Hawaii v. Standard Oil Co., 405 U.S. at 258-59

n.12. The Special Master’s reasoning would make Kansas

a sovereign trustee, able to recover for injuries to individ-

uals when those individuals cannot.

The Special Master restates, and implicitly accepts,

Kansas’ argument that “under the compact a state and its

citizens are treated as one.” Second Report at 99. If Kan-

sas actually owned the water rights which its water users

exercise, the Special Master’s decision might fit within

the reasoning of South Dakota v. North Carolina, 192 U.S.

286 (1904), in which South Dakota was allowed to recover

on North Carolina bonds which were “given outright and

absolutely to the state.” Id. at 310. But the assumption

that Kansas’ rights under the Compact and the water

rights of individual Kansas water users are identical is

erroneous and unsupported. There has certainly been no

outright transfer of rights, as there was in South Dakota v.

North Carolina. Neither the Special Master nor Kansas has

pointed to any language in the Compact which effects

such a transfer of rights; nor do this Court’s previous

decisions support such an assumption. To say that private

water rights may be circumscribed by a state’s overarch-

ing compact apportionment, see Hinderlider v. La Plata

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

that a state’s compact apportionment may be based on or

even “indissolubly linked” to private water rights, see

Wyoming v. Colorado, 286 U.S. at 508, is not to say that the

two are identical.

The inclusion of losses to individuals in Kansas’

recovery is unprecedented and contrary to the 11th

Amendment. Colorado respectfully urges the Court to

grant Colorado’s exception to the Special Master’s recom-

mendation.

Il. PREJUDGMENT INTEREST SHOULD NOT BE

AWARDED ON KANSAS’ UNLIQUIDATED

CLAIM AGAINST COLORADO

Kansas argued that an award of prejudgment interest

is necessary to provide complete compensation for inju-

ries resulting from Colorado’s violation of the Compact.

Second Report at 105. Colorado opposed such an award

on the grounds that Kansas did not complain about a

compact violation until 1984 at the earliest, that thereafter

there was a good-faith dispute over compact compliance,

and that the amount of any depletion was not readily

ascertainable. See id. at 105-06. Colorado noted that the

common law rule is that prejudgment interest is not

awarded on unliquidated damages and that prejudgment

interest had not been awarded on judgments in cases

between states, absent a clear obligation to pay prejudg-

ment interest. E.g., Virginia v. West Virginia, 238 U.S. 202,

234-35 (1915).

The Special Master concludes that if the remedy here

includes money damages, the unliquidated nature of

Kansas’ claim does not, as a matter of law, bar an award

of prejudgment interest. Second Report at 110. In reach-

ing this conclusion, the Special Master relies heavily on

the Court’s recent decision in City of Milwaukee v. Cement

Div., National Gypsum Co., 515 U.S. 189 (1995), and on

cases which involved statutory awards of prejudgment

interest.

As the Special Master acknowledges, City of Mil-

waukee was an admiralty case, where the general rule has

been to allow prejudgment interest. Second Report at 108.

He cites the Court’s observation that the distinction

between liquidated and unliquidated claims “has faced

trenchant criticism for a number of years.” Id. at 106,

citing City of Milwaukee, 515 U.S. at 197. However, the

cases cited by the Court as examples of “trenchant criti-

cism” involved awards of prejudgment interest granted

pursuant to statutory provisions. For example, Funkhouser

v. J.B. Preston Co., 290 U.S. 163 (1933), simply determined

that a New York statute providing for prejudgment inter-

est was not an unconstitutional impairment of contracts.

While there has been a trend in recent years to allow

prejudgment interest on unliquidated claims, that trend

has been primarily the result of legislative action. Cf.

Monessen Southwestern R. Co. v. Morgan, 486 U.S. 330, 339

(1988) (denying prejudgment interest in FELA claims

because of congressional inaction to change longstanding

common law rule).

The Court has found prejudgment interest to be

appropriate to effectuate the purpose of federal remedial

schemes, which typically include detailed enforcement

provisions, including time limits for bringing claims. See,

e.g., Loeffler v. Frank, 486 U.S. 549 (1988) (approving pre-

judgment interest in sex discrimination case against U.S.

Postal Service); 42 U.S.C. §2000e-16(c) (imposing time

limit for bringing such claims). Statutory provisions pro-

viding for prejudgment interest have also been accom-

panied by legislative changes placing other limits on

liability. See General Motors Corp. v. Devex Corp., 461 U.S.

648, 654-55 (1983) (noting that 1946 change in patent

infringement law providing for prejudgment interest con-

tained corresponding change eliminating recovery of

infringer’s profits).'7

As the Special Master recognizes, “Kansas’ claim for

damages in this case certainly represents an unliquidated

claim.” Second Report at 110. Colorado’s violation of the

Compact was not willful or deliberate, First Report at 169,

Second Report at 77-78, 80, and determining material

depletions of usable Stateline flows due to wells “is not

simple.” First Report at 161. This Court found that the

“vague and conflicting evidence” concerning well deple-

tions excused Kansas’ failure to raise its claims for 35

years. Kansas v. Colorado, 514 U.S. at 688. Given these facts

and the lack of a time limitation on actions for violation

of an interstate compact, this is not a case in which to cast

aside the traditional rule against awarding prejudgment

interest on unliquidated claims.

17 General Motors Corp. also recited the common law

standard (which the Court would presumably have followed in

the absence of a statutory change), under which “prejudgment

interest could not be awarded where damages were

unliquidated absent bad faith or other exceptional

circumstances.” 461 U.S. at 653.

III. THE SPECIAL MASTER’S RULINGS WILL HAVE

FAR-REACHING AND UNINTENDED CONSE-

QUENCES

As Colorado has explained above, the Special Mas-

ter’s ruling on recovery of damages for losses by individ-

uals creates an unprecedented expansion of the concept

of quasi-sovereignty. The Special Master’s rulings also

have the potential to encourage interstate litigation, to

discourage the resolution of interstate disputes through

mutual accommodation and agreement, and to increase

the risk of double recoveries.

The award of money damages for breach of an inter-

state compact equitably apportioning an interstate stream

is a relatively new concept. Texas v. New Mexico is the only

case of which Colorado is aware where the award of such

damages was approved, and the scope of damages was

not ruled on, but resolved by consent decree. As this

Court has noted, “there is a striking contrast between the

potential impact of suits for injunctive relief and suits for

damages.” Hawaii v. Standard Oil Co., 405 U.S. at 262.

However, parens patriae actions by states to vindicate

quasi-sovereign interests are being brought with increas-

ing frequency in the lower courts against defendants

other than states. See, e.g., In re Edmond;934 F.2d 1304 (4th

Cir. 1991); People ex rel. Abrams v. Seneci, 817 F.2d 1015 (2d

Cir. 1987); Pennsylvania v. Porter, 659 F.2d 306 (3d Cir.

1981); California v. Frito-Lay, Inc., 474 F.2d 774 (9th Cir.

1973); Maine v. M/V Tamano, 357 F.Supp. 1097 (D. Maine

1973). Parens patriae actions do not depend on whether

individuals are foreclosed from separate recovery, but

whether the state has an independent interest behind the

titles or interests of its citizens. See Pennsylvania v. Porter,

659 F.2d at 318 n.16, and cases cited therein.

Because the 11th Amendment is not a factor in such

cases, careful application of the concept of quasi-sover-

eignty is necessary to avoid the risk of double recoveries.

Unless this Court corrects it, the Special Master’s fusion

of states’ quasi-sovereign interests with the private inter-

ests of their citizens will confuse the distinction between

the two and increase the risk of double recoveries. Fol-

lowing the Special Master’s reasoning, states may bring

parens patriae actions for damages to individuals for civil

rights violations, see Porter, for employment discrimina-

tion, see Snapp, or in bankruptcy proceedings, see Edmond;

yet defendants may remain subject to suits by individuals

to recover for the identical injuries.

Further, even a state which did not intend to recover

for its citizens’ injuries would have to be extremely care-

ful in circumscribing its environmental enforcement pro-

ceedings, so that defendants would not be able to use

judgments by the state to foreclose claims by individuals

for damages to their private property. See Satsky v. Para-

mount Communications, Inc., 7 F.3d 1464 (10th Cir. 1993)

(because of nature of parens patriae representation, pre-

vious state judgment against polluter for natural

resources damages did not foreclose claims by individ- _

uals for damages to private property).

More troublesome are the implications of the Special

Master’s recommendations for the formation of interstate

compacts. The Special Master’s recommendations expand

the effect of the Arkansas River Compact beyond its

terms and subject Colorado to potentially enormous dam-

ages for a violation which was not apparent for 35 years,

which was not deliberate or willful, and for which no

statute of limitations has been recognized. This Court has

repeatedly encouraged states to resolve controversies

through compacts rather than by resort to litigation in

this Court, see Texas v. New Mexico, 462 U.S. 554, 575

(1983), and cases cited therein; yet the Special Master’s

recommendation may make states hesitate to enter into

compacts when the consequences of a non-deliberate,

non-willful breach may be enormous.

Further, the Special Master’s recommendations will

encourage litigation between states in this Court by open-

ing the door to recovery for losses to individuals (includ-

ing prejudgment interest on such losses) that would be

barred by the 11th Amendment if brought by the individ-

uals themselves. The Special Master’s recommendations

also create a financial incentive for delay in enforcing

interstate compacts. Rather than redressing injuries

through prompt investigation or enforcement, a state may

sit back, say nothing, and then decades later reap profits

by converting individuals’ injuries to a state recovery.

Colorado respectfully requests that the Court correct

the Special Master’s recommendations on money dam-

ages based on losses incurred by water users in Kansas

and on the applicability of prejudgment interest.

Respectfully submitted this 20th day of November,

1997.

Gate A. Norton

Attorney General of Colorado

MartTHA PuHILuips ALLBRIGHT

Chief Deputy Attorney General

RicHArRD A. WESTFALL

Solicitor General

JoserH C. Sort, Jr.

Deputy Attorney General

Caro. D. ANGEL

Senior Assistant Attorney General

Hut & Rossins, P.C.

Davip W. Rossins

Special Assistant Attorney General

Counsel of Record

Dennis M. MONTGOMERY

Special Assistant Attorney General

1441 - 18th Street, #100

Denver, Colorado 80202

Telephone: 303-296-8100

Attorneys for Defendant

State of Colorado

App. 1

ARKANSAS RIVER COMPACT, 1948

The State of Colorado and the State of Kansas, parties

signatory to this Compact (hereinafter referred to as

“Colorado” and “Kansas”, respectively, or individually as

a “State”, or collectively as the “States”) having resolved

to conclude a compact with respect to the waters of the

Arkansas River, and being moved by considerations of

interstate comity, having appointed commissioners as fol-

lows: “Henry C. Vidal, Gail L. Ireland, and Harry B.

Mendenhall, for Colorado; and George S. Knapp, Edward

F. Arn, William E. Leavitt, and Roland H. Tate, for Kan-

sas”; and the consent of the Congress of the United States

to negotiate and enter into an interstate compact not later

than January 1, 1950, having been granted by Public Law

34, 79th Congress, 1st Session, and pursuant thereto the

President having designated Hans Kramer as the repre-

sentative of the United States, the said commissioners for

Colorado and Kansas, after negotiations participated in

by the representatives of the United States, have agreed

as follows:

ARTICLE I

The major purposes of this Compact are to:

A. Settle existing disputes and remove causes of

future controversy between the States of Colorado and

Kansas, and between citizens of one and citizens of the

other State, concerning the waters of the Arkansas River

and their control, conservation and utilization for irriga-

tion and other beneficial purposes.

App. 2

B. Equitably divide and apportion between the

States of Colorado and Kansas the waters of the Arkansas

River and their utilization as well as the benefits arising

from the construction, operation and maintenance by the

United States of John Martin Reservoir Project for water

conservation purposes.

ARTICLE II

The provisions of this Compact are based on (1) the

physical and other conditions peculiar to the Arkansas

River and its natural drainage basin, and the nature and

location of irrigation and other developments and facili-

ties in connection therewith; (2) the opinion of the United

States Supreme Court entered December 6, 1943, in the

case of Colorado v. Kansas (320 U.S. 383) concerning the

relative rights of the respective States in and to the use of

waters of the Arkansas River; and (3) the experience

derived under various interim executive agreements

between the two States apportioning the waters released

from the John Martin Reservoir as operated by the Corps

of Engineers.

ARTICLE III

As used in this Compact:

A. The word “Stateline” means the geographical

boundary line between Colorado and Kansas.

B. The term “waters of the Arkansas River” means

the waters originating in the natural drainage basin of the

Arkansas River, including its tributaries, upstream from

App. 3

the Stateline, and excluding waters brought into the

Arkansas River Basin from other river basins.

C. The term “Stateline flow” means the flow of

waters of the Arkansas River as determined by gaging

stations located at or near the Stateline. The flow as

determined by such stations, whether located in Colorado

or Kansas, shall be deemed to be the actual Stateline flow.

D. “John Martin Reservoir Project” is the official

name of the facility formerly known as Caddoa Reservoir

Project, authorized by the Flood Control Act of 1936, as

amended, for construction, operation and maintenance by

the War Department, Corps of Engineers, later designated

as the Corps of Engineers, Department of the Army, and

herein referred to as the “Corps of Engineers”. “John

Martin Reservoir” is the water storage space created by

“John Martin Dam”.

E. The “flood control storage” is that portion of the

total storage space in John Martin Reservoir allocated to

flood control purposes.

F. The “conservation pool” is that portion of the

total storage space in John Martin Reservoir lying below

the flood control storage.

G. The “ditches of Colorado Water District 67” are

those ditches and canals which divert water from the

Arkansas River or its tributaries downstream from John

Martin Dam for irrigation use in Colorado.

H. The term “river flow” means the sum of the

flows of the Arkansas and the Purgatoire Rivers into John

Martin Reservoir as determined by gaging stations appro-

priately located above said Reservoir.

App. 4

I. The term “the Administration” means the

Arkansas River Compact Administration established

under Article VIII.

ARTICLE IV

Both States recognize that:

A. This Compact deals only with the waters of the

Arkansas River as defined in Article III.

B. This Compact is not concerned with the rights, if

any, of the State of New Mexico or its citizens in and to

the use in New Mexico of waters of Trinchera Creek or

other tributaries of the Purgatoire River, a tributary of the

Arkansas River.

C. (1) John Martin Dam will be operated by the

Corps of Engineers to store and release the waters of the

Arkansas River in and from John Martin Reservoir for its

authorized purposes.

(2) The bottom of the flood control storage is

presently fixed by the Chief of Engineers, U.S. Army, at

elevation 3,851 feet above mean sea level. The flood con-

trol storage will be operated for flood control purposes

and to those ends will impound or regulate the stream-

flow volumes that are in excess of the then available

storage capacity of the conservation pool. Releases from

the flood control storage may be made at times and rates

determined by the Corps of Engineers to be necessary or

advisable without regard to ditch diversion capacities or

requirements in either or both States.

(3) The conservation pool will be operated for

the benefit of water users in Colorado and Kansas, both

App. 5

upstream and downstream from John Martin’ Dam, as

provided in this Compact. The maintenance of John Mar-

tin Dam and appurtenant works may at times require the

Corps of Engineers to release water then impounded in

the conservation pool or to prohibit the storage of water

therein until such maintenance work is completed. Flood

control operation may also involve temporary utilization

of conservation storage.

D. This Compact is not intended to impede or pre-

vent future beneficial development of the Arkansas River

basin in Colorado and Kansas by Federal or State agen-

cies, by private enterprise, or by combinations thereof,

which may involve construction of dams, reservoir, and

other works for the purpose of water utilization and

control, as well as the improved or prolonged functioning

of existing works: Provided, that the waters of the

Arkansas River, as defined in Article III, shall not be

materially depleted in usable quantity or availability for

use to the water users in Colorado and Kansas under this

Compact by such future development or construction.

ARTICLE V

Colorado and Kansas hereby agree upon the follow-

ing basis of apportionment of the waters of the Arkansas

River:

A. Winter storage in John Martin Reservoir shall

commence on November Ist of each year and continue to

and include the next succeeding March 31st. During said

period all water entering said reservoir up to the limit of

the then available conservation capacity shall be stored:

Provided, that Colorado may demand releases of water

App. 6

equivalent to the river flow, but such releases shall not

exceed 100 c.f.s. (cubic feet per second) and water so

released shall be used without avoidable waste.

B. Summer storage in John Martin Reservoir shall

commence on April Ist of each year and continue to and

include the next succeeding October 31st. During said

period, except when Colorado water users are operating

under decreed priorities as provided in paragraphs F and

G of this Article, all water entering said reservoir up to

the limit of the then available conservation capacity shall

be stored: Provided, that Colorado may demand releases

of water equivalent to the river flow up to 500 c.f.s., and

Kansas may demand releases of water equivalent to that

portion of the river flow between 500 c.f.s. and 750 c.f.s.,

irrespective of releases demanded by Colorado.

C. Releases of water stored pursuant to the provi-

sions of paragraphs A and B of this Article shall be made

upon demands by Colorado and Kansas concurrently or

separately at any time during the summer storage period.

Unless increases to meet extraordinary conditions are

authorized by the Administration, separate releases of

stored water to Colorado shall not exceed 750 c.f.s., sepa-

rate releases of stored water to Kansas shall not exceed

500 c.f.s., and concurrent releases of stored water shall

not exceed a total of 1,250 c.f.s.: Provided, that when

water stored in the conservation pool is reduced to a

quantity less than 20,000 acre-feet, separate releases of

stored water to Colorado shall not exceed 600 c.f.s., sepa-

rate releases of stored water to Kansas shall not exceed

400 c.f.s., and concurrent releases of stored water shall

not exceed 1,000 c.f.s.

App. 7

D. Releases authorized by paragraphs A, B and C of

this Article, except when all Colorado water users are

operating under decreed priorities as provided in para-

graphs F and G of this Article, shall not impose any call

on Colorado water users that divert waters of the

Arkansas River upstream from John Martin Dam.

E. (1) Releases of stored water and releases of

river flow may be made simultaneously upon the

demands of either or both States.

(2) Water released upon concurrent or separate

demands shall be applied promptly to beneficial use

unless storage thereof downstream is authorized by the

Administration.

(3) Releases of river flow and of stored water to

Colorado shall be measured by gaging stations located at

or near John Martin Dam and the releases to which

Kansas is entitled shall be satisfied by an equivalent in

Stateline flow.

(4) When water is released from John Martin

Reservoir appropriate allowances as determined by the

Administration shall be made for the intervals of time

required for such water to arrive at the points of diver-

sion in Colorado and at the Stateline.

(5) There shall be no allowance or accumulation

of credits or debits for or against either State.

(6) Storage, releases from storage and releases

of river flow authorized in this Article shall be accom-

plished pursuant to procedures prescribed by the Admin-

istration under the provisions of Article VIII.

App. 8

F. In the event the Administration finds that within

a period of fourteen (14) days the water in the conserva-

tion pool will be or is liable to be exhausted, the Adminis-

tration shall forthwith notify the State Engineer of

Colorado, or his duly authorized representative, that

commencing upon a day certain within said fourteen (14)

day period, unless a change of conditions justifies can-

cellation or modification of such notice, Colorado shall

administer the decreed rights of water users in Colorado

Water District 67 as against each other and as against all

rights now or hereafter decreed to water users diverting

upstream from John Martin Dam on the basis of relative

priorities in the same manner in which their respective

priority rights were administered by Colorado before

John Martin Reservoir began to operate and as though

John Martin Dam had not been constructed. Such priority

administration by Colorado shall be continued until the

Administration finds that water is again available in the

conservation pool for release as provided in this Com-

pact, and timely notice of such finding shall be given by

the Administration to the State Engineer of Colorado or

his duly authorized representative: Provided, that except

as controlled by the operation of the preceding provisions

of this paragraph and other applicable provisions of this

Compact, when there is water in the conservation pool

the water users upstream from John Martin Reservoir

shall not be affected by the decrees to the ditches in

Colorado Water District 67. Except when administration

in Colorado is on a priority basis the water diversions in

Colorado Water District 67 shall be administered by Colo-

rado in accordance with distribution agreements made

App. 9

from time to time between the water users in such Dis-

trict and filed with the Administration and with the State

Engineer of Colorado or, in the absence of such agree-

ment, upon the basis of the respective priority decrees, as

against each other, in said District.

G. During periods when Colorado reverts to admin-

istration of decreed priorities, Kansas shall not be entitled

to any portion of the river flow entering John Martin

Reservoir. Waters of the Arkansas River originating in

Colorado which may flow across the Stateline during

such periods are hereby apportioned to Kansas.

H. If the usable quantity and available for use of the

waters of the Arkansas River to water users in Colorado

Water District 67 and Kansas will be thereby materially

depleted or adversely affected, (1) priority rights now

decreed to the ditches of Colorado Water District 67 shall

not hereafter be transferred to other water districts in

Colorado or to points of diversion or places of use

upstream from John Martin Dam; and (2) the ditch diver-

sion rights from the Arkansas River in Colorado Water

District 67, and of Kansas ditches between the Stateline

and Garden City shall not hereafter be increased beyond

the total present rights of said ditches, without the

Administration, in either case (1) or (2), making findings

of fact that no such depletion or adverse effect will result

from such proposed transfer or increase. Notice of legal

proceedings for any such proposed transfer or increase

shall be given to the Administration in the manner and

within the time provided by the laws of Colorado or

Kansas in such cases. ,

App. 10

ARTICLE VI

A. (1) Nothing in this Compact shall be construed

as impairing the jurisdiction of Kansas over the waters ot

the Arkansas River that originate in Kansas and over the

waters that flow from Colorado across the Stateline into

Kansas.

(2) Except as otherwise provided, nothing in

this Compact shall be construed as supplanting the

administration by Colorado of the rights of appropriators

of waters of the Arkansas River in said State as decreed to

said appropriators by the courts of Colorado, nor as

interfering with the distribution among said appropria-

tors by Colorado, nor as curtailing the diversion and use

for irrigation and other beneficial purposes in Colorado

of the waters of the Arkansas River.

B. Inasmuch as the Frontier Canal diverts waters of

the Arkansas River in Colorado west of the Stateline for

irrigation uses in Kansas only, Colorado concedes to Kan-

sas and Kansas hereby assumes exclusive administrative

control over the operation of the Frontier Canal and its

headworks for such purposes, to the same extent as

though said works were located entirely within the State

of Kansas. Water carried across the Stateline in the Fron-

tier Canal or another similarly situated canal shall be

considered to be part of the Stateline flow.

ARTICLE VII

A. Each State shall be subject to the terms of this

Compact. Where the name of the State or the term “State”

is used in this Compact these shall be construed to

App. 11

include any person or entity of any nature whatsoever

using, claiming or in any manner asserting any right to

the use of the waters of the Arkansas River under the

authority of that State.

B. This Compact establishes no general principle or

precedent with respect to any other interstate stream.

C. Wherever any State or Federal official or agency

is referred to in this Compact such reference shall apply

to the comparable official or agency succeeding to their

duties and functions.

ARTICLE VIII

A. To administer the provisions of this Compact

there is hereby created an interstate agency to be known

as the Arkansas River Compact Administration herein

designated as “The Administration.”

B. The Administration shall have power to:

(1) Adopt, amend and revoke by-laws, rules

and regulations consistent with the provisions of this

Compact;

(2) Prescribe procedures for the administration

of this Compact: Provided, that where such procedures

involve the operation of John Martin Reservoir Project

they shall be subject to the approval of the District Engi-

neer in charge of said Project;

(3) Perform all functions required to implement

this Compact and to do all things necessary, proper or

convenient in the performance of its duties.

App. 12

C. The membership of the Administration shall con-

sist of three representatives from each State who shall be

appointed by the respective Governors for a term not to

exceed four years. One Colorado representative shall be a

resident of and water right owner in Water Districts 14 or

17, one Colorado representative shall be a resident of and

water right owner in Water District 67, and one Colorado

representative shall be the Director of the Colorado Water

Conservation Board. Two Kansas representatives shall be

residents of and water right owners in the counties of

Finney, Kearny or Hamilton, and one Kansas representa-

tive shall be the chief State official charged with the

administration of water rights in Kansas. The President of

the United States is hereby requested to designate a rep-

resentative of the United States, and if a representative is

so designated he shall be an ex-officio member and act as

chairman of the Administration without vote.

D. The State representatives shall be appointed by

the respective Governors within thirty days after the

effective date of this Compact. The Administration shall

meet and organize within sixty days after such effective

date. A quorum for any meeting shall consist of four

members of the Administration: Provided, that at least

two members are present from each State. Each State

shall have but one vote in the Administration and every

decision, authorization or other action shall require unan-

imous vote. In case of a divided vote on any matter

within the purview of the Administration, the Adminis-

tration may, by subsequent unanimous vote, refer the

matter for arbitration to the Representative of the United

States or other arbitrator or arbitrators, in which event

App. 13

the decision made by such arbitrator or arbitrators shall

be binding upon the Administration.

E. (1) The salaries, if any, and the personal

expenses of each member shall be paid by the govern-

ment which he represents. All other expenses incident to

the administration of this Compact which are not paid by

the United States shall be borne by the States on the basis

of 60 per cent by Colorado and 40 per cent by Kansas.

(2) In each even numbered year the Administra-

tion shall adopt and transmit to the Governor of each

State its budget covering anticipated expenses for the

forthcoming biennium and the amount thereof payable

by each State. Each State shall appropriate and pay the

amount due by it to the Administration.

(3) The Administration shall keep accurate

accounts of all receipts and disbursements and shall

include a statement thereof, together with a certificate of

audit by a certified public accountant, in its annual

report. Each State shall have the right to make an exam-

ination and audit of the accounts of the Administration at

any time.

F. Each State shall provide such available facilities,

equipment and other assistance as the Administration

may need to carry out its duties. To supplement such

available assistance the Administration may employ engi-

neering, legal, clerical, and other aid as in its judgment

may be necessary for the performance of its functions.

Such employees shall be paid by and be responsible to

the Administration, and shall not be considered to be

employees of either State.

App. 14

G. (1) The Administration shall cooperate with the

chief official of each State charged with the administra-

tion of water rights and with Federal agencies in the

systematic determination and correlation of the facts as to

the flow and diversion of the waters of the Arkansas

River and as to the operation and siltation of John Martin

Reservoir and other related structures. The Administra-

tion shall cooperate in the procurement, interchange,

compilation and publication of all factual data bearing

upon the administration of this Compact without, in gen-

eral, duplicating measurements, observations or publica-

tions made by State or Federal agencies. State officials

shall furnish pertinent factual data to the Administration

upon its request. The Administration shall, with the col-

laboration of the appropriate Federal and State agencies,

determine as may be necessary from time to time, the

location of gaging stations required for the proper admin-

istration of this Compact and shall designate the official

records of such stations for its official use.

(2) The Director, U.S. Geological Survey, the

Commissioner of Reclamation and the Chief of Engineers,

U.S. Army, are hereby requested to collaborate with the

Administration and with appropriate State officials in the

systematic determination and correlation of data referred

to in paragraph G(1) of this Article and in the execution

of other duties of such officials which may be necessary

for the proper administration of this Compact.

(3) If deemed necessary for the administration

of this Compact, the Administration may require the

installation and maintenance, at the expense of water

users, of measuring devices of approved type in any ditch

or group of ditches diverting water from the Arkansas

App. 15

River in Colorado or Kansas. The chief official of each

State charged with the administration of water rights

shall supervise the execution of the Administration’s

requirements for such installations.

H. Violation of any of the provisions of this Com-

pact or other actions prejudicial thereto which come to

the attention of the Administration shall be promptly

investigated by it. When deemed advisable as the result

of such investigation, the Administration may report its

findings and recommendations to the State official who is

charged with the administration of water rights for

appropriate action, it being the intent of this Compact

that enforcement of its terms shall be accomplished in

general through the State agencies and officials charged

with the administration of water rights.

I. Findings of fact made by the Administration shall

not be conclusive in any court or before any agency or

tribunal but shall constitute prima facie evidence of the

facts found.

J. The Administration shall report annually to the

Governors of the States and to the President of the United

States as to matters within its purview.

ARTICLE Ix

A. This Compact shall become effective when rat-

ified by the Legislature of each State and when consented

to by the Congress of the United States by legislation

providing substantially, among other things, as follows:

“Nothing contained in this Act or in the Compeac

herein consented to shall be construed as impairing

App. 16

affecting the sovereignty of the United States or any of its

rights or jurisdiction in and over the area or waters which

are the subject of such Compact: Provided, that the Chief

of Engineers is hereby authorized to operate the conser-

vation features of the John Martin Reservoir Project in a

manner conforming to such Compact with such excep-

tions as he and the Administration created pursuant to

the Compact may jointly approve.”

B. This Compact shall remain in effect until mod-

ified or terminated by unanimous action of the States and

in the event of modification or termination all rights then

established or recognized by this Compact shall continue

unimpaired.

IN WITNESS WHEREOF, The commissioners have

signed this Compact in triplicate original, one of which

shall be forwarded to the Secretary of State of the United

States of America and one of which shall be forwarded to

the Governor of each signatory State.

Done in the City and County of Denver, in the state

of Colorado, on the fourteenth day of December, in the

Year of our Lord One Thousand Nine Hundred and

Forty-eight.

Henry C. Vial

Gail L. Ireland

Harry B. Mendenhall

Commissioners for Colorado

George S. Knapp

Edward F. Arn

William E. Leavitt

Roland H. Tate

Commissioners for Kansas

App. 17

Attest:

Warden L. Noe

Secretary

Approved:

ans Kramer

Representative of the United States

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.