Appendix — Sisson v. Helms
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No. 105, ORIGINA
' OFFICE OF THE CLERK
SUt © COURT, U.S.
In The a
Supreme Court of the United States
STATE OF KANSAS,
Plaintiff,
STATE OF COLORADO,
Defendant,
and
UNITED STATES OF AMERICA,
Defendant-Intervenor.
ARTHUR L. LITTLEWORTH, Special Master
THIRD REPORT
APPENDIX (EXHIBITS 1-9)
August 2000
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COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
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APPENDIX
TABLE OF CONTENTS
Page
Section XIII of Second Report (Measure of
Damages Colorado Gain or Kansas
Order dated July 28, 1999 re Colorado’s
Motion in Limine to Exclude Evidence of
Colorado’s Benefits from Violations of
Arkansas River Compact............ App. 11
Exhibit 3 Section XIV of Second Report (Eleventh
Amendment).............-..+++++.--App. 18
Exhibit 4 Section XV of Second Report (Prejudg-
ment Interest)......................-App. 38
Exhibit 5 Order dated January 11, 1999 re Modeling
and Other Issues...................-App. 45
Exhibit 6 Order dated July 28, 1999 re Depletions
BP BOUTS, 2c cccccccccscssccccccc cc dm,
Exhibit 7 Order dated March 22, 2000 re Mitigation
of Damages, Colo. Exh. 1096........ App. 68
Exhibit 8 Order dated May 1, 2000 re Objection to
Expert Testimony (Daubert Motion). . App. 76
Exhibit 9 Stipulation filed November 23, 1998,
TRO a cccccccccccccccvccccsscces a OG
APPENDIX - Exhibit 1
Section XIII of Second Report (Measure of Damages -
Colorado Gain or Kansas Loss)
App. 1
SECTION XIII
THE MEASURE OF DAMAGES - COLORADO GAIN
OR KANSAS LOSS
In the event that the remedy for past depletions of
usable Stateline flow should be in the form of monetary
damages, Kansas contends that the measure of the rem-
edy “should be the greater of Colorado’s gains or Kansas’
losses.” Kan. Brief re Statement of Position at 23. More-
over, Kansas states that Colorado’s benefits from violat-
ing the compact “are expected to be higher than Kansas’
injury,” and, if so, the amount of the recovery should
correspond to the gains in Colorado resulting from the
use of Kansas’ entitlement. Id. at 4. There is no direct
Supreme Court precedent on the measure of damages in a
case such as this.
While this issue has been presented on briefs, earlier
evidence in the trial outlines generally the kind of bene-
fits that have accrued to Colorado farmers from increased
use of groundwater. Much of the uncertainty and inse-
curity associated with surface flows were eliminated.
Water became available when needed to improve crop
yields. Total water supplies were increased for typically
water-short ditches. Some high value specialty crops
became possible. In short, overall farm productivity
increased, but at the cost of depletions at the Stateline.
The Kansas argument begins by characterizing these ben-
efits as “ill-gotten gains,” or “illegal profit,” and relies on
cases that do use these terms and order the divestment of
the “benefits of unlawful activity.” Kan. Brief re State-
ment of Position at 5, 8, 9. Kansas argues further that all
such benefits or gains should be eliminated in order to
App. 2
minimize the incentives that a state might otherwise have
to violate an interstate compact or, at least, to neglect to
comply therewith. Id. at 5, 6-7.
At the outset, I believe that Kansas’ characterization
of the increased use of groundwater in Colorado is
unduly harsh. Most of the postcompact wells in Colorado
were lawfully drilled at a time when wells were unregu-
lated. When Kansas filed this case, there were approxi-
mately 2062 large irrigation wells, of which 1842 were in
existence before 1965. Colo. Exh. 165*, Table A-1. As the
Colorado Supreme Court noted in one of its decisions,
there had been “virtually no regulation of wells” prior to
the adoption of the 1973 Rules. Colo. Exh. 387 at 296.
However, if Colorado was slow in coming to grips with
well development, so was Kansas. In Kansas, about 416
wells were in existence in 1949 in the three-county area
from the Stateline to Garden City. Colo. Exh. 257*. This
number had increased to 1999 by 1985. Id.; RT Vol. 86 at
109-111. For the period 1968-85, pumping within the sev-
eral canal company service areas in Kansas averaged
about 79,400 acre-feet annually. It reached a high of
149,800 acre-feet in 1981. Kan. Exh. 327 at 9, Table 10A.
Kansas did not begin to regulate well through the issu-
‘ance of permits until 1978. RT Vol. 28 at 6; RT Vol. 37 at
27, 32.
In both states, sophisticated systems for the establish-
ment and regulation of surface water rights had long
been in place. However, before the development of the
vertical turbine pump and the availability of inexpensive
electrical power, there had been little regulatory need to
be concerned about groundwater pumping. The “big
surge” in well development along the Arkansas River
App. 3
came in the 1950s and early 1960s when there was no
governmental system in either Colorado or Kansas to
regulate well drilling and pumping. RT Vol. 76 at 102.
Although by the 1970s the extent of pumping in
Colorado was a matter of common knowledge, that is not
to say, as I concluded in my earlier report, “that the
impact of such pumping on usable Stateline flows was
generally known or understood.” Report of Special Mas-
ter at 169. Wells per se do not violate the compact. Only if
they cause a material depletion in usable Stateline flows
are they wrongful. Determining what flows are usable,
and the depletions of usable flow in contrast to deple-
tions of total flow, is a complex matter. And as the
Supreme Court noted in its earlier Opinion, isolating the
impacts of wells on usable Stateline flow was rendered all
the more difficult because of other changing conditions
during the 1970s and 1980s. The 1970s were generally dry
years, and some reduction in flow would have occurred
apart from pumping. Pueblo Dam came on line in 1976
and began to reregulate native flows. Transmountain
imports were also increased during this period, which to
some extent provided an offset to pumping. The Winter
Water Storage Program was instituted. Finally, there was
no quantitative or specific entitlement against which
depletions to usable flow could be judged. Kansas v. Colo-
. rado 514 U.S. 675, 131 L.Ed.2d 759, 775, 115 S.Ct. 1733
(1995).
This is not a case in which Colorado deliberately set
out to reap the benefits of a wilful failure to perform its
obligations under the compact. Had its actions been
intentionally illegal, or as wilful and knowing as the
factual situations in the cases on which Kansas relies,
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App. 4
there might have been more validity to Colorado’s
defense of laches.
Both states recognize that an interstate compact is
both a contract and a law of the United States. Petty v.
Tennessee-Missouri Ridge Commission, 359 U.S. 275, 285, 3
L.Ed.2d 804, 79 S.Ct. 785 (1959); Texas v. New Mexico, 462
U.S. 554, 564, 77 L.Ed.2d 1, 103 S.Ct. 2558 (1983). Thus,
treating Colorado’s violations of the compact as a viola-
tion of federal law, Kansas cites a number of cases
upholding the equitable jurisdiction of the courts to order
the disgorgement of profits illegally acquired. The lead-
ing case is Porter v. Warner Holding Co., 328 U.S. 395, 90
L.Ed.1332, 66 S.Ct. 1086 (1946). That suit, brought by the
Price Administration under the Emergency Price Control
Act of 1942, sought restitution of rents collected in excess
of required rent ceilings. The District Court enjoined
future excess charges, but held that it lacked jurisdiction
to order restitution. The Supreme Court found, however,
that the absence of specific authority in the statute did
not limit the broad equitable powers of a court to secure
complete justice, and to compel the defendant to “dis-
gorge profits.” 328 U.S. at 398-99. Restitution of the exces-
sive rent charges gave effect to “the policy of Congress,”
and the case was remanded so the court could “exercise
the discretion that belongs to it.” 328 U.S. 395 at 400, 403.
The same issue of whether a court’s equitable juris-
diction was limited by the remedies authorized by the
statute arose in Mitchell v. Robert De Mario Jewelry, 361
U.S. 288, 4 L.Ed.2d 323, 80 S.Ct. 332 (1960). In that case,
several employees had sought the aid of the Secretary of
Labor under the Fair Labor Standards Act to recover
Ae OO et Qe ae ne ee ee ew
App. 5
wages allegedly unpaid. Ultimately, the employer retali-
ated by discharging the employees, and the Secretary
brought suit to require reinstatement and to recover the
payment of lost wages. While the statute did not speci-
fically provide for the recovery of lost wages, the
Supreme Court found that a court of equity had inherent
jurisdiction to give effect to the policy of the legislature,
and that the statute should not be lightly interpreted to
deprive the courts of this power.
These two Supreme Court decisions are frequently
cited in enforcement actions of other federal statutes,
supporting the equitable power of courts to order dis-
gorgement as a remedy “for the purpose of depriving the
wrongdoer of his ill-gotten gains and deterring violations
of the law.” Commodity Futures Trading Commission v.
American Metals Exchange Corp., 991 F.2d 71 (3rd Cir.
1993). See CFTC v. Hunt, 591 F.2d 1211 (2nd Cir. 1979)
involving the Commodity Exchange Act; SEC v. Patel, 61
F.3d 137 (7th Cir. 1995) involving deliberate fraud against
the FDA, a 27-month term of imprisonment, and viola-
tions of the Securities Exchange Act; and Interstate Com-
merce Commission v. B & T Transportation Co., 613 F.2d 1182
(1st Cir. 1980) involving an action under the Motor Car-
rier Act to enjoin the collection of charges not reflected in
filed tariffs, and for restitution of the overcharges.
In these cases, we find the courts exercising equitable
jurisdiction to recover excess charges, to disgorge illegal
profits gained from insider trading information, and to
require payment of lost wages. Each case represents an
aspect of the court’s broad equitable powers. At the same
time, however, it is recognized that the exercise of such
jurisdiction remains a matter of discretion:
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App. 6
“The inherent equitable jurisdiction which is
thus called into play clearly authorizes a court,
in its discretion, to decree restitution of excessive
charges in order to give effect to the policy of
Congress.” Porter v. Warner Holding Co., supra,
328 U.S. at 400, emphasis added.
In the context of the present case, it is my view that the
quantification of damages proposed by Kansas reaches
too far, and if money is to be part of the remedy, that the
Court’s discretion should be exercised to limit the mea-
sure of damages to the losses suffered by Kansas. As |
indicated in my first Report:
“1 do not believe that Colorado officials thought
they were sanctioning a compact violation in the
well regulations that were established, or in
their failure to adopt specific regulations to pro-
tect usable Stateline flows, or in the issuance of
new well permits.” Report at 169.
The lack of wilfulness behind Colorado's violation of the
Compact serves to distinguish the cases cited by Kansas
in support of its proposed measure of damages.
Moreover, while Kansas should be made whole with
respect to past violations of the compact, it is also appro-
priate that the remedy not result in a windfall. If it is true
that differences in soils, climate, crop values, economic
multipliers or other factors may result in a higher value
for Arkansas River water used in Colorado than in Kan-
sas, reliance upon those factors to quantify damages
could result in a windfall recovery. This issue surfaced in
Texas v. New Mexico before the damages were settled by
stipulation. New Mexico cited two reports prepared by
Texas’ economist. These reports apparently estimated that
App. 7
Texas’ losses from past underdeliveries were approxi-
mately 50 million dollars. On the other hand, the reports
indicated that New Mexico obtained an economic benefit
from the use of that water in excess of one billion dollars.
While New Mexico stated that these values were grossly
exaggerated, it did not dispute “the qualitative fact that
New Mexico’s economic benefit from not delivering a
quantity of water at the state line (or her economic loss
from having to deliver it) greatly exceeds the economic
benefit that Texas could gain from using the same quan-
tity of water.” New Mexico’s Pre-hearing Brief at 15, fn.
10. The issue of a possible windfall was not settled in
Texas v. New Mexico. However, it does not seem appropri-
ate that Kansas’ recovery in money should exceed what
would have occurred had there been no violation of the
compact.
Kansas argues that quantifying damages in terms of
Colorado’s gain is neither a windfall nor a penalty, but
rather minimizes the incentive that a state would other-
wise have to evade the obligations imposed by an inter-
State compact. This argument was also touched upon in
Texas v. New Mexico where the court stated:
“It might also be said that awarding only a sum
of money would permit New Mexico to ignore
its obligation to deliver water as long as it is
willing to suffer the financial penalty. But in
light of the authority to order remedying short-
falls to be made up in kind, with whatever
additional sanction might be thought necessary
for deliberate failure to perform, that concern is
not substantial in our view.” 482 U.S. at 132.
6 <teene :
——
pein
App. 8
I do not see the measure of damages suggested by Kansas
as being an effective deterrent to compact violations.
Interstate water cases are simply too complex to be
guided by the potential form of remedy. And I have no
doubt about the power of equity to provide complete
relief, perhaps even looking to upstream gain under
appropriate circumstances.
While an interstate compact approved by Congress
becomes a law of the United States, still a “Compact is,
after all, a contract.” Petty v. Tennessee-Missouri Bridge
Commission, 359 U.S. 275, 285, 3 L.Ed.2d 804, 79 S.Ct. 785
(1959); Texas v. New Mexico, 482 U.S. 124 at 128, 96 L.Ed.2d
105, 107 S.Ct. 2279 (1987). Ordinarily, contract damages
are based upon the injured party’s “expectation interest,”
as measured by:
(a) The loss in the value to the injured party of
the other party’s performance caused by its
failure or deficiency, plus
(b) Any other loss, including incidental or con-
sequential loss, caused by the breach, less
(c) Any cost or other loss that the injured party
has avoided by not having to perform.
Restatement (Second) of Contracts § 347 & comment
(1979). In the alternative, damages may be awarded based
upon the injured party’s reliance interest. Id. at Section
349. Thus, under general principles of contract law,
money damages would not be based upon Colorado's
benefit, but rather on Kansas’ loss. Kansas cites some
specific performance and trust cases, but those prece-
dents are not applicable to these facts.
ee
App. 9
It should be remembered, however, that this is not
merely an action at law for breach of contract. It is a case
between two states brought under the original jurisdic-
tion of the United States Supreme Court. The court's
jurisdiction in such cases is “basically equitable in
nature.” Ohio v. Kentucky, 410 U.S. 641, 648, 35 L.Ed.2d
560, 93 S.Ct. 1178 (1973). Yet the court’s power is not
restricted by traditional equity rules. As I wrote in my
earlier opinion:
“It would be a mistake, however, to decide
the issue solely on the basis of conventional
equity rules. In establishing the Supreme
Court’s original jurisdiction over litigation
between states, the constitution does not speak
of ‘cases in law or equity,’ as it does in certain
other situations. Rather it refers simply to ‘con-
troversies’ between states. Commentary on the
difference between cases and controversies has
been inconsistent and inconclusive (see 36 CJS
20 [Federal Courts § 1]; 1A CJS 302, 315, 316
[Actions §§ 1, 5c, 6]), but the constitutional lan-
guage does suggest that the interstate jurisdic-
tion is not necessarily locked into rules of either
common law or equity. And in exercising this
‘unprecedented’ grant of judicial power
(Charles Warren, ‘The Supreme Court and Sov-
ereign States,’ [Stafford Little Lectures for 1924],
Princeton Univ. Press, p. 32), the Court has
treated it as sui generis —- a substitute for the
treaty and war powers which the states surren-
dered when the constitution was established.
Rhode Island v. Massachusetts, 37 U.S. (12 Pet.)
657, 725, 9 L.Ed. 1233, 1260 (1838); Kansas v.
Colorado, 185 U.S. 125, 140, 46 L.Ed. 838, 844, 22
S.Ct. 552 (1902); North Dakota v. Minnesota, 263
U.S. 365, 372-73, 68 L.Ed. 342, 345, 44 S.Ct. 138
ed
App. 10
(1923); Idaho v. Oregon, 462 U.S. 1017, 1031, note
1, 77 L.Ed.2d 387, 400, 103 S.Ct. 2817 (1983).
As Chief Justice Taney explained in 1855,
traditional chancery practice is an ‘analogy’ in
these cases but is not controlling. Florida v. Geor-
gia, 58 U.S. (17 How.) 478, 492, 15 L.Ed. 181, 189
(1855). Thus viewed, the inquiry really is one of
fundamental justice rather than what is the his-
torical or even the current practice of courts
exercising less extraordinary powers. It is in this
sense that the Court has observed that proceed-
ings under its original jurisdiction are ‘basically’
equitable in nature. Ohio v. Kentucky, supra, 410
U.S. at 648, 35 L.Ed.2d at 567, 93 S.Ct. 1178
(1973).” Report at 150-51.
Most recently, the Court has indicated that the remedy in
a compact case, which I deem to include the measure of
damages, should provide a “fair and equitable solution
that is consistent with the Compact terms.” Texas v. New
Mexico, 482 U.S. 124, 134 (1987).
A. Conclusion.
I conclude, therefore, that if a suitable remedy in this
case should include money damages, those damages
should be based upon Kansas’ loss rather than any gain
to Colorado, subject to the overriding consideration that
the remedy provide a fair and equitable solution.
APPENDIX - Exhibit 2
Order dated July 28, 1999 re Colorado’s Motion in
Limine to Exclude Evidence of Colorado’s Benefits
from Violations of Arkansas River Compact
— na
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ee
App. 11
IN THE SUPREME COURT OF THE UNITED STATES
STATE OF KANSAS,
Ftatntie, No. 105 Original
V. October Term, 1998
STATE OF COLORADO,
Defendant,
UNITED STATES OF
AMERICA,
me me ee ee ee ee ee ee”
Eee
ORDER GRANTING COLORADO’S MOTION
“JN LIMINE TO EXCLUDE EVIDENCE OF
COLORADO'S BENEFITS FROM VIOLATIONS OF
~~ THE ARKANSAS RIVER COMPACT ==
(Filed July 28, 1999)
On May 7, 1999, the State of Colorado moved the
Special Master to enter an order excluding any evidence
of Colorado’s benefits from violations of the Arkansas
River Compact. The motion was precipitated by certain
Kansas expert reports in support of its claim for money
damages. These reports were submitted to Colorado in
accordance with a prior order, and in preparation for the
trial segment on remedies scheduled to begin November
8, 1999. Included in these reports was a section entitled
“Colorado’s Benefits From Violations of the Arkansas
River Compact.” The motion is based on the claim that
such evidence is contrary to one of my rulings in the
Second Report. In that report, I recommended to the
Supreme Court:
“That if a suitable remedy in this case should
include money damages, those damages should
ne ee eS A
App. 12
be based upon Kansas’ loss rather than upon
any gain to Colorado, subject to the overriding
consideration that the remedy provide a fair and
equitable solution.” (Page 113)
On July 7, 1999, Kansas filed a brief in response to Colo-
rado’s motion, and Colorado replied on July 19, 1999.
In the briefing on certain legal issues leading to my
Second Report, Kansas contended that if the remedy for
past depletions should be in the form of monetary dam-
ages, the measure “should be the greater of Colorado's
gains or Kansas’ losses.” (Second Report at 75) Kansas
stated that Colorado’s benefits from violating the com-
pact were expected to be “higher than Kansas’ injury,”
and, if so, the amount of the recovery should correspond
to the gains in Colorado resulting from the use of water
to which Kansas was entitled. Kansas characterized these
benefits as “ill-gotten gains” or “illegal profit,” and relied
on a line of cases upholding the equitable jurisdiction of
the courts to order the disgorgement of profits illegally
acquired. However, | found that these cases were distin-
guishable.
Kansas’ characterization of the increased use of
groundwater in Colorado was, I believe, “unduly harsh.”
(Second Report at 76) Most of the postcompact wells in
Colorado were lawfully drilled at a time when wells were
simply unregulated. The situation in Kansas was similar.
While both states had established sophisticated systems
for the regulation of surface water rights, neither state
moved quickly to address groundwater pumping. The big
surge in well development along the Arkansas River
occurred in the 1950s and early 1960s with the develop-
ment of the vertical turbine pump and the availability of
App. 13
inexpensive electrical power. However, Kansas did not
begin to regulate wells through the issuance of permits
until 1978, and there was “virtually no regulation of
wells” in Colorado prior to 1973. (Colo. Exh. 387 at 296)
I concluded in my Second Report that this is not a
case in which Colorado “deliberately set out to reap the
benefits of a wilful failure to perform its obligations
under the compact,” and that the Kansas cases were
inapplicable under the facts of this case. (Second Report
at 77) Moreover, the Kansas approach opens up the possi-
bility of a windfall. I concluded further that it did not
seem appropriate that any Kansas money damages
should exceed what would have occurred had there been
no violation of the compact. (Second Report at 81) In
short, the Second Report rejected the Kansas theory of
using Colorado benefits to measure any money remedy.
The Second Report was submitted to the Supreme
Court in September, 1997, and exceptions were invited.
(118 Sup.Ct. 39) It is not insignificant that Kansas took no
exceptions to this Report, and urged the Court to
“accept” the Report.!
The Colorado brief in support of its motion is short
and straightforward, i.e., the issue of using Colorado
' The Second Report quantified shortages for the period
1950-94, and also recommended two other legal rulings in
Kansas’ favor, namely, (1) that the Eleventh Amendment does
not bar any money damages awarded to Kansas from being
based, in part, on losses incurred by its water users; and (2) that
the unliquidated nature of Kansas’ claim for damages does not
bar the award of prejudgment interest.
App. 14
benefits as a measure of damages has been decided. Kan-
sas, however, relies upon the caveat to that ruling,
namely, that it would be “subject to the overriding con-
sideration that the remedy provide a fair and equitable
solution.” While not proposing now that Colorado bene-
fits be used directly to establish a money remedy, Kansas
argues:
“Even though the presumed measure of dam-
ages is not Colorado’s gains, Kansas under-
stands the Special Master’s recommendation to
allow evidence of Colorado gains to show that
Kansas’ proposed remedy on its losses provides
‘a fair and equitable solution,’ which is, after all,
‘the overriding consideration.’” (Kansas
Response at 4)
Kansas asserts that the ruling in the Second Report does
not mean that no evidence of Colorado benefits can be
used for any purpose. Kansas cites the recognized rule in
original actions that the Court “has always been liberal in
allowing full development of the facts.” (United States v.
Texas (1950) 339 U.S. 707, 715)
Colorado responds that the Court’s policy applies
only to providing facts that are in some way relevant to
the controversy before the Court; that the proposed evi-
dence is not relevant; and that Colorado should not be
put to the time and expense of evaluating and responding
to evidence that “appears to be completely irrelevant.”
(Colorado’s Reply at 3) However, more is involved here
than mere relevancy. Kansas proposes to use evidence of
a legal theory that has already been ruled inappropriate
to buttress an approved legal theory. We may expect, as
Kansas has already indicated, that the dollar benefits to
App. 15
Colorado might exceed losses to Kansas. But that cannot
color Kansas’ remedy. Any money damages to Kansas
must stand on their own facts and legal basis. They do
not become a more “fair and equitable solution” by com-
parison to an improper measure.
As to the meaning of the requirement that any rem-
edy must provide a “fair and equitable solution,” I expect
there will be ample opportunity to consider that language
within the traditional framework of injury to Kansas.
(Texas v. New Mexico (1987) 482 U.S. 124, 134) Even in
ordinary cases, and much less in a case of original juris-
diction, there is no single prescribed formula for deter-
mining damages. Moreover, in this case, the issue of
prejudgment interest must be considered. There is no
absolute right to such interest, and even in admiralty
cases whether it should be allowed rests “very much in
the discretion of the tribunal.” (City of Milwaukee v.
Cement Division, National Gypsum Co. (1995) 515 U.S. 189,
132 L.Ed.2d 148, 115 S.Ct. 2091) Such interest is not
recoverable “according to a rigid theory of compensation
for money withheld, but is given in response to consider-
ations of fairness.” (Jackson County v. United States (1939)
308 U.S. 343, 352, 84 L.Ed. 13, 60 S.Ct. 295) Moreover,
according to the United States, the liability of an individ-
ual state for prejudgment interest “remains an open ques-
tion.” (United States Brief on Exceptions to Second
Report at 21)
For the reasons herein stated, Colorado’s motion in
limine is granted.
DATED: July 28, 1999.
/s/ Arthur L. Littleworth
ARTHUR L. LITTLEWORTH
Special Master
——eee
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App. 16
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
I am a citizen of the United States and a resident of
the County aforesaid; I am over the age of eighteen years
and not a party to the within entitled action; my business
address is Best, Best & Krieger, 3750 University Avenue,
400 Mission Square, Riverside, California 92502. a
I am readily familiar with Best, Best & Krieger’s
practice for collecting and processing correspondence for
mailing with the United States Postal Service. Under that
practice, all correspondence is deposited with the United
States Postal Service the same day it is collected and
processed in the ordinary course of business.
On July 28, 1999, I served the within ORDER
GRANTING COLORADO’S MOTION IN LIMINE TO
EXCLUDE EVIDENCE OF COLORADO’S BENEFITS
FROM VIOLATIONS OF THE ARKANSAS RIVER
COMPACT by placing a copy of the document in a
separate envelope for each addressee named below and
addressed to each such addressee as follows:
John B. Draper, Esq.
Montgomery & Andrews
325 Paseo de Peralta
P.O. Box 2307
Santa Fe, New Mexico 87504-2307
David W. Robbins, Esq.
Hill & Robbins
100 Blake Street Building
1441 Eighteenth Street
Denver, Colorado 80202
App. 17
Jeffrey P. Minear
Assistant to the Solicitor General
Office of the Solicitor General
United States Department of Justice
Constitution Avenue & Tenth Street, N.W.
Washington D.C. 20530
James J. DuBois, Esq.
U.S. Department of Justice
General Litigation Section
999 18th Street, Suite 945
Denver, Colorado 80202
On July 28, 1999, at the office of Best, Best & Krieger,
3750 University Avenue, 400 Mission Square, Riverside,
California 92502, I sealed and placed each envelope for
collection and deposit by Best, Best & Krieger in the
United States Postal Service, following ordinary business
practices.
I declare under penalty of perjury under the laws of
the State of California, that the foregoing is true and
correct.
Executed on July 28, 1999, at Riverside, California.
/s/ Sandra L. Simmons
Sandra L. Simmons
APPENDIX - Exhibit 3
Section XIV of Second Report (Eleventh Amendment)
App. 18
SECTION XIV
THE ELEVENTH AMENDMENT
A. Introduction.
If money damages are to be awarded, Colorado con-
tends that the 11th Amendment to the United States
Constitution precludes any recovery based on losses sus-
tained by individual water users in Kansas. That Amend-
ment provides:
“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.”
The Amendment was adopted in 1797 out of concern that
the federal courts would otherwise entertain private suits
against states without regard to the sovereign immunity
which they had enjoyed before ratification of the consti-
tution. Chisholm v. Georgia, 2 U.S. [2 Dall.] 419, 1 L.Ed. 440
(1972). Apparently the failure to raise the issue at the
constitutional convention had been something of an over-
sight, and there was general support for liberating the
states from the prospect of adverse federal litigation,
especially litigation by British creditors.
In our own time, renewed political interest in states’
rights has prompted a resurgence of 11th Amendment
discussion, and the Court has reviewed the origins and
history of the amendment at some length. See, for exam-
ple, the several opinions in Seminole Tribe of Florida v.
Florida, 517 U.S. __, 134 L.Ed.2d 252, 116 S.Ct. 114 (1996).
The majority there held that Congress did not have the
power under the Indian Commerce Clause to abrogate a
App. 19
state’s sovereign immunity. Even more recently, the Court
has considered the scope of the Ex parte Young doctrine
which allows suits under appropriate circumstances to
proceed against state officers for injunctive relief based
on alleged violations of federal law. Idaho v. Coeur d'Alene
Tribe of Idaho, 1997 U.S. Lexis 4030. However, such a suit
cannot be the functiorial equivalent of a suit against the
state so as to render its 11th Amendment protection
meaningless.
At the outset two distinctions need to be made:
(1) Unlike many 11th Amendment cases, ours does
not involve the issue of jurisdiction itself. The Court has
already taken jurisdiction, and in fact has determined the
liability questions associated with the dispute. The ques-
tions which now implicate the 11th Amendment have to
do with remedy - the extent to which the Court may look
to losses sustained by farmers in Kansas when fashioning
an award to the State of Kansas.
(2) In the final paragraph of its briefing on this
subject (pages 40-41), Colorado refers to two types of
damages which apparently it recognizes as proper under
the 11th Amendment: damages based on injury to Kan-
sas’ own proprietary rights, and damages based on Kan-
sas’ role as a “quasi-sovereign.”' Kansas has not yet
1 “Finally, if repayment is in money, it must be limited to
damages on Kansas’ proprietary and quasi-sovereign interests.
The Eleventh Amendment precludes an award based on the
economic injuries of individual Kansas water users.” Colo.
Reply Brief at 40-41. Colorado also states that it does not dispute
that injury to the Kansas general economy and loss of
governmental revenue would be appropriate to consider. Colo.
Reply Brief at 26.
App. 20
pointed to proprietary losses of its own, and therefore
our inquiry into the 11th Amendment at this point
becomes a question of whether injuries to Kansas citizens
are embraced within the concept of quasi-sovereignty, or
whether there is any other basis for including the losses
to Kansas water users in determining Kansas’ damages.?
During oral argument on a draft of this Second
Report, counsel for Colorado responded that damages to
Kansas’ proprietary rights might include reduction in the
State’s groundwater supplies, caused by diminished
recharge from the river and increased pumping to make
up for river shortages.* RT Vol. 169 at 58-59. Counsel also
indicated that probably some losses to the general econ-
omy of Kansas could be established. Id. at 59. It is not
clear whether these losses would be considered as inju-
ries to proprietary or quasi-sovereign rights. Nonetheless,
in determining such damages counsel acknowledged that
it would be necessary to begin the analysis with losses
suffered by Kansas water users as a result of the compact
violations. Id. at 59-61. However, in his view, the 11th
Amendment would preclude their inclusion in the ulti-
mate damage figure.
? Kansas takes the view that its entitlement “to a complete
remedy for breach of the Compact” arises from its sovereign
interest as a party to the Compact, and not from a parens patriae
Or quasi-sovereign interest. Kan. Reply Brief at 27, emphasis
added.
* Counsel cautioned, however, that Colorado had not
engaged an economist, and his responses to my questions on
damages, and how damages should be determined, were
without benefit of expert help, and should be understood with
that reservation. RT Vol. 169 at 58, 60.
App. 21
Although not always referred to by that name, quasi-
sovereignty is of long standing in our law. It does not
lend itself to a “simple or exact definition.” Alfred L.
Snapp & Son v. Puerto Rico, 458 U.S. 592, 601, 73 L.Ed.2d
995, 102 S.Ct. 3260 (1982). It refers to action by a state
which is not based on its own proprietary or other rights
as a sovereign, nor on private interests pursued by the
state as a nominal party. Rather, it is a general interest
that the state has in the well-being of its citizens, and
which it is fitting that the state promote and defend in
court. Colorado acknowledges that a state’s quasi-sover-
eign and parens patriae interests are sufficient under a
number of cases to support jurisdiction here and the
issuance of injunctive relief. Colo. Reply Brief at 34. But
Colorado contends that these authorities should not be
read as allowing a state “to make claims on behalf of
individual citizens,” or to collect damages “based on
injuries suffered by individual water users.” Id. at 35, 2.
Of course, this action is no mere contrivance by Kan-
sas to obtain damages for its water users. Rather, it is the
State of Kansas that seeks damages, which it contends
should be measured in part by the losses suffered by
individual farmers. In Texas v. New Mexico, counsel
argued that any such damages might go into the state's
general fund, “rather than benefit those who were hurt.”
482 U.S. at 132, n. 7. The Supreme Court responded:
“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
App. 22
view that the State should recover any damages
that may be awarded, money she would be free
to spend in the way it determines is in the
public interest.” Texas v. New Mexico, 482 U.S. at
132 n.7.
It is the same situation here. Any damages will go to the
State of Kansas, to be spent as it decides, and not to
individual water users.
It is interesting to note, however, that Colorado’s
proposed “water remedy” seems to run contrary to its
views on the 11th Amendment. Colorado proposes to
make up the historic shortfall in usable Stateline flows by
delivering additional quantities of water (over and above
that which may be required for current compact compli-
ance) to present and future users of Arkansas River water
in Kansas. Such deliveries likely would be of direct bene-
fit to Kansas farmers - as opposed to damages paid to the
State of Kansas - as compensation for past violations of
the compact. In short, Colorado seems to contend that the
11th Amendment bars money compensation to the state
based on losses to its citizens, but does not preclude
compensation in water which may be delivered directly
to those citizens. However, in oral argument Colorado
responded that any deliveries of water under a water
remedy would be made at the Stateline to Kansas, not to
its users. It argued that Kansas could require that the
excess water be used, for example, to recharge a ground-
water area of the state that had nothing to do with the
compact or the Arkansas River. RT Vol. 169 at 70-73. To be
sure this might be theoretically possible, but also highly
unlikely. In all probability, make-up water delivered into
the Arkansas River and measured at the Stateline would
App. 23
go to the benefit of those ditch systems that were shorted
by virtue of the compact violations.
B. The Shaping of the Law.
In my review of this subject, I have found it helpful
to examine the cases more or less chronologically, since
there has been some shaping of the underlying principles
over the years.
At first the only interstate cases under the Court's
original jurisdiction were boundary cases. By their very
nature such disputes involve sovereignty. They involve
territory, a piece of the state itself, and obviously the state
has a direct governmental interest as a state. But citizens,
residents and property owners in the affected area are
also directly impacted. A judgment adjusting a boundary
determines whose laws are to be obeyed, whose officials
will levy taxes, whose judges will decide cases, and
whose rules will be used to deraign titles and resolve
commercial disputes. Substantial private gains and losses
can result, and it is clear that private rights of the type
contemplated by the amendment will at times be adjudi-
cated by the federal judiciary.
Notwithstanding this inevitable involvement of pri-
vate rights in boundary cases, the early Court refused to
accept jurisdiction over strictly private disputes. Not sur-
prisingly, a number of attempts to avoid this result were
made, sometimes with the active participation of a plain-
tiff state. See e.g., New Hampshire v. Louisiana, 108 U.S. 76,
27 L.Ed. 656, 2 S.Ct. 176 (1883), where bonds of the State
App. 24
of Louisiana were assigned to the State of New Hamp-
shire by one of its citizens for collection by the State. All
expenses of litigation were paid by the original private
bondholder. No state funds could be expended in the
proceedings, and any recovery had to be paid over by
New Hampshire to the original bondholder. The Court
found that the state could not “allow the use of its name
in such a suit for the benefit of one of its citizens” in
order to avoid the 11th Amendment. Id. at 661.
These efforts seem to have come to a head in 1904
with the Court’s decision in South Dakota v. North Caro-
lina, 192 U.S. 286, 48 L.Ed.448, 24 S.Ct. 269 (1904). Two
brothers, bankers and brokers in New York City, owned a
large number of railroad bonds on which the State of
North Carolina had become liable. The State of South
Dakota, by statute, arranged to accept a donation of ten
of the bonds and then brought suit to enforce them in the
United States Supreme Court under original jurisdiction.
South Dakota also named as defendants two individuals
as representatives of other bondholders. While no condi-
tions were attached to the state’s title to its bonds, the
Court acknowledged that the gift was made under the
“not unreasonable expectation” that South Dakota’s
action “might enure to his benefit as the owner of other
like bonds.” Id. at 310. The Court, in a 5 to 4 decision,
with a strong dissent by Mr. Justice White, accepted
jurisdiction and gave judgment for South Dakota — but
only on the bonds which it directly owned. The separate
cause of action in which South Dakota sought relief for
the other bond holders on class action principles was
summarily rejected by the majority. In short, none of the
App. 25
Justices was willing to allow private claimants to ride on
the coattails of this interstate suit.
The law has now been long established that the state
must be more than a nominal party if the protection of
the Eleventh Amendment does not apply. Maryland v.
Louisiana, 451 U.S. 725, 737, 68 L.Ed.2d 576, 101 S.Ct. 2114
(1981); Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592,
73 L.Ed.2d 995, 102 S.Ct. 3260 (1982). In order to invoke
the original jurisdiction of this Court, the state must bring
the action “on its own behalf and not on behalf of partic-
ular citizens.” Hawaii v. Standard Oil Company of California,
405 U.S. 251, 258 fm. 12, 31 L.Ed.2d 184, 92 S.Ct. 885
(1972).
Shortly thereafter, in 19U7, the decision in Kansas v.
Colorado, 206 U.S. 46, 51 L.Ed. 956, 27 S.Ct. 655 (1907)
established the principle of equitable apportionment of
interstate streams; Kansas was allowed to sue on behalf |
of its citizens claiming rights to Arkansas River water.
The alleged facts demonstrated a sound basis for quasi-
sovereignty, but the extent of relief available in such an
apportionment remained uncertain because of the factual
finding that Colorado had not deprived Kansas of its
share of the river. This case and its predecessor, Kansas v.
Colorado, 185 U.S. 125, 46 L.Ed. 838, 22 S.Ct. 552 (1902) are
among the cases cited more recently by the Court as
examples of states successfully representing the interests
of their citizens. Alfred L. Snapp & Son v. Puerto Rico, 458
U.S. 592, 603, 73 L.Ed.2d 995, 102 S.Ct. 3260 (1982).
Fifteen years later, in a dispute involving the Laramie
River, the Court decided another interstate stream appor-
tionment, and this time there was a judgment ordering
App. 26
relief. Wyoming v. Colorado, 259 U.S. 419, 66 L.Ed. 999, 42
S.Ct. 552 (1922). However, on the question of the scope of
relief, the decision is of limited value as a precedent since
both states follow the rule of prior appropriation, and for
that reason the Court held that it would use that doctrine
as the standard for dividing the river between them.
_ Nonetheless, of special relevance to the present issue
is the way in which the Wyoming decision determined
each state’s share of the stream. The Court based its
apportionment directly on the water rights of individual
water users. Moreover, in doing so, it expressly adjudi-
cated particular water rights which happened to be in
controversy. For example, the opinion discussed at length
the evidence relating to one priority date which Colorado
claimed under the doctrine of relation, and it was held
that the correct date was substantially later. Colorado's
position throughout that litigation was that the case was
one solely between two states, and that the Court could
not determine private water rights. The Court, however,
in effect abolished the line between the two states, recog-
nizing an interstate priority for each appropriation.
Over the next eighteen years the Court issued three
additional Laramie River decisions clarifying what it had
done - clarification of particular significance to the argu-
ment presented by Colorado now. In Wyoming v. Colorado
No. 2, 286 U.S. 494, 76 L.Ed. 1245, 52 S.Ct. 621 (1932), the
Court issued an injunction enforcing one of the water
rights it had recognized in the original decision - thus
suggesting that in 1922 it had actually adjudicated private
claims on the river. Then in Wyoming v. Colorado No. 3, 298
U.S. 573, 80 L.Ed. 1339, 56 S.Ct. 912 (1936), the Court
emphasized the overriding importance of the total
§ i wl BAR Cee
App. 27
amount allowed to Colorado, but nevertheless, issued an
injunction as to one specific water right which had been
covered in the original decree. The result was to leave the
matters somewhat uncertain as to what the Court had
undertaken to do. Finally, in Wyoming v. Colorado No. 4,
309 U.S. 572, 84 L.Ed. 954, 60 S.Ct. 765 (1940), the Court
discussed all three of the previous cases and explained
what had actually been intended.
With respect specifically to the injunction issued in
the 1936 decree, the Court explained (309 U.S. at 579) that
“this was manifestly upon the assumption that Colorado
was otherwise using the total amount of water allocated
to that State.” The Court added that “it was not intended
to restrict Colorado in determining the use of the water of
the river, according to Colorado laws and adjudications,
provided the diversions did not exceed the aggregate
amount of 39,750 acre feet to which Colorado was enti-
tled ...” The holding was that the total share allocated to
each state was the true adjudication of 1922, and each
state was thereafter free to adjust individual rights within
its borders in accordance with its own laws. Mr. Justice
Van Devanter’s painstaking evaluation of individual
rights in 1922 was merely a means to an end; the individ-
ual rights served only as a basis for the overall apportion-
ment of the stream between Colorado and Wyoming. In
short, the Court in 1922 did exactly what Colorado now
says it cannot do.
Meanwhile, in the year following Wyoming v. Colorado
No. 1, the Court reiterated its opposition to actual adjudi-
cation of private claims in a suit between states. North
Dakota v. Minnesota, 263 U.S. 365, 68 L.Ed. 342, 44 S.Ct.
138 (1923). This time the subject was not bonds but water
App. 28
damage on an interstate stream. North Dakota alleged
that construction work by Minnesota upstream had
caused flooding in North Dakota with resulting damage
to North Dakota itself (in the amount of $5,000) and to
individual farms (in the amount of over $1 million). Ulti-
mately the Court found that Minnesota was not responsi-
ble for the damage. However, it held that on proper facts
it would issue an injunction in favor of North Dakota, but
would not entertain the claims of the individual farmers
even though presented by the state. Simply put, it reiter-
ated the position taken in South Dakota v. North Carolina.
However, I find no inconsistency in the Wyoming
and North Dakota cases. In Wyoming, individual claims
were recognized as a basis for determining the state’s
total share of the stream. In North Dakota, individual
damage claims were refused recognition because recov-
ery was sought for the claimants themselves, who were
actually financing the litigation. The Court found that
each of the farm owners expected “to share in
the .. . damages here sought in proportion to the amount
of his loss,” and that it was “inconceivable” that North
Dakota would prosecute the damage phase of the case
without intending to turn any recovery over to the indi-
vidual farm owners. 263 U.S. at 375.
On the same day as the original Wyoming decision
(and by means of a one-sentence reference to the princi-
ples of that case) the Court held that a Nebraska corpora-
tion could appropriate water of the North Fork of the
Republican River in Colorado, and transport it across the
state line for use in Nebraska. This was true notwith-
standing Colorado’s claim to ownership of, and the
power to regulate, all the waters within its boundaries.
App. 29
Weiland, State Engineer of Colorado, v. Pioneer Irrigation Co.,
259 U.S. 498, 502, 66 L.Ed. 1027, 42 S.Ct. 568 (1922). There
was no apportionment by the Court, but the right of
Nebraska citizens to some share of this interstate stream
was declared to be constitutional.
In 1938, the Court in Hinderlider v. La Plata River &
Cherry Creek Ditch Co., 304 U.S. 92, 82 L.Ed. 1202, 58 S.Ct.
803 (1938), reaffirmed and expanded on the principles of
the Kansas and Wyoming decisions. As its title indicates,
that case was not brought under the original jurisdiction,
but defendant Hinderlider was the state engineer of Colo-
rado, and defended his regulatory action on the ground
that the rotation he used in managing the river in Colo-
rado was authorized by a compact between Colorado and
New Mexico. The opinion is an important pronounce-
ment on the law of interstate streams. To begin with, the
Court ruled that equitable stream apportionment between
states may be accomplished by compact as well as by
judgment. In doing so, the Court noted that use of the
rule of prior appropriation in the Wyoming case was due
to the fact that both states followed that role, and it did
not preclude the use of a different approach in other
cases, such as the rotation agreed upon in the Colorado-
New Mexico compact. Most important, the Court held
that even private Colorado rights which had vested
before the compact were subject to the compact. Colo-
rado’s share of the stream was determined by the com-
pact, and the total of all Colorado’s rights could not
exceed that share. Accordingly, the early priority date of
the plaintiff's appropriation was unavailing to the extent
that it conflicted with the management system agreed
upon between the states.
App. 30
In 1943, the Court decided the second Arkansas River
case, this time involving a suit brought by the State of
Colorado to bar a group of Kansas citizens from prosecut-
ing actions against water users in Colorado to adjudicate
their respective rights to Arkansas River water. Colorado
v. Kansas, 320 U.S. 383, 88 L.Ed. 116, 64 S.Ct. 176 (1943).
Colorado sought a decree “that Kansas and her citizens
be enjoined from litigating, or attempting to litigate, the
relative rights of the two states and their citizens. .. .” 320
U.S. at 388, emphasis added. Colorado alleged that “no
proper settlement of the relative rights of the States can
be obtained in suits by Kansas appropriators and against
Colorado appropriators.” Id. The Court once again found,
as it had in 1907, that Colorado was not taking more than
its reasonable share and granted the injunction. But the
Court also strongly urged the two states to seek a more
permanent allocation through an interstate compact. The
present Arkansas River Compact is expressly based on
the decision in that case. Compact, Art. II.
In the latter half of this century there has been some
development of the Court’s attitude toward the coupling
of private claims with those of a state suing as quasi-
sovereign. Thus, in Maryland v. Louisiana, 451 U.S. 725, 68
L.Ed.2d 576, 101 S.Ct. 2114 (1981), a divided Court
adopted a more favorable approach toward allowing a
state to represent its citizens under that doctrine. There,
Maryland and several other states challenged the consti-
tutionality of Louisiana’s “first-use” tax on natural gas,
and also sought recovery of the taxes already paid. Id. at
728, 734. The complaint estimated the direct injuries to
the plaintiff states at $1.5 million, and to their citizén
App. 31
consumers of gas at $120 million. 451 U.S. at 736, note 12.
Among other things, the Court said:
“Jurisdiction is also supported by the States’
interest as parens patriae. A State is not permit-
ted to enter a controversy as a nominal party in
order to forward the claims of individual citi-
zens. See Oklahoma ex rel. Johnson v. Cook, 304
U.S. 387, 82 L.Ed. 1416, 58 S.Ct. 954 (1938); New
Hampshire v. Louisiana, 108 U.S. 76, 27 L.Ed.
656, 2 S.Ct. 176 (1883). But it may act as the
representative of its citizens in original actions
where the injury alleged affects the general pop-
ulation of a State in a substantial way. See, e.g.,
Missouri Vv. Illinois, 180 U.S. 208, 45 L.Ed. 497, 21
S.Ct. 331 (1901); Kansas v. Colorado, 185 U.S.
125, 46 L.Ed. 838, 22 S.Ct. 552 (1902); Georgia v.
Tennessee Copper Co., 206 U.S. 230, 51 L.Ed.
1038, 27 S.Ct. 618, (1907).” 451 U.S. at 737.
With respect to the claim for injuries suffered by individ-
ual consumers, the Court stated:
“As the Special Master observed, individual
consumers cannot be expected to litigate the
validity of the First-Use Tax given that the
amounts paid by each consumer are likely to be
relatively small. Moreover, because the con-
sumers are not directly responsible to Louisiana
for payment of the taxes, they of course are
foreclosed from suing for a refund in Louisi-
ana’s courts. In such circumstances, exercise of
our original jurisdiction is proper.” 451 U.S. at
739.
App. 32
C. The Compact.
One of the stated purposes of the Arkansas River
Compact is to settle controversies not only between the
states, but also “between citizens of one and citizens of
the other State.” Compact, Art. I-A. The compact also
defines the term “state” to include any person claiming
rights to the Arkansas River under the authority of that
state. Compact, Art. VII-A. In an interstate controversy a
state has the power to represent the water claims of its
people, and an interstate compact is binding upon the
water users within a state. Hinderlider v. La Plata River &
Cherry Creek Ditch Co., 304 U.S. 92, 106, 82 L.Ed. 1202, 58
S.Ct. 803 (1938), Wyoming v. Colorado, 286 U.S. 494, 508-09,
76 L.Ed. 1245, 52 S.Ct. 621 (1932).
Thus, Kansas contends that under the compact a state
and its citizens are treated as one. Kan. Reply Brief at 22.
An injury to its people is an injury to the state. Kan. Brief
re Statement of Position at 12. In the Laramie River dis-
putes the Court observed that “the interests of the state
are indissolubly linked with the rights of the appropria-
tors” [i.e., the water use claimants in both states]. Wyo-
ming v. Colorado, 259 U.S. 419, 468, 66 L.Ed. 999, 42 S.Ct.
552 (1922). And against a claim that certain individual
water users were not bound by the decree because they
were not parties to the suit, the Court stated:
“In this the nature of the suit is misconceived. It
was one between States, each acting as a quasi-
sovereign and representative of the interests and
rights of her people in a controversy with the
other . . . Decisions in other cases also warrant
the conclusion that the water claimants in Colo-
rado, and those in Wyoming, were represented
App. 33
by their respective States and are bound by the
decree.” Wyoming v. Colorado, 286 U.S. 494,
508-09, 76 L.Ed. 1245, 52 S.Ct. 621 (1932).
Colorado voices concern that an overly broad inter-
pretation of quasi-sovereignty could create the potential
for double recovery. RT Vol. 169 at 55-56. That should not
be a problem here, however. The Arkansas River Com-
pact allows each state to represent its water users, and to
bind them. If losses suffered by Kansas water users are
included in any damages awarded to the State of Kansas,
such a judgment should seal off any later recovery
attempts by individual water users. Moreover, there is a
substantial question whether Kansas water users have
any forum open to them, apart from the compact. In 1943
Colorado was able to enjoin the prosecution of individual
water rights litigation over the use of Arkansas River
water. Colorado v. Kansas, 320 U.S. 383, 88 L.Ed. 116, 64
S.Ct. 176 (1943). During oral argument on the draft of this
Second Report, counsel for Colorado acknowledged that
his view of the Eleventh Amendment, together with the
prior litigation, led to the conclusion that “Kansas water
users do not have a remedy”; that there is “no way” to
recover their losses. RT Vol. 169 at 56-57.
D. Conclusion.
For several reasons, I believe the Court should reject
Colorado’s present argument that the amount of damages
to be awarded to Kansas may not take into account evi-
dence of injuries to its water users.
First, Colorado’s argument is inconsistent with the
basic concept of quasi-sovereignty. When the conduct of
App. 34
one state toward the citizens of another state is general
enough and substantial enough to call for responsive
action by the second state, it is unrealistic and unfair to
say that the tribunal assigned to resolve the conflict must
do so without evidence of the injuries suffered by those
interests which are directly affected. Quasi-sovereignty (a
recognized exception under the 11th Amendment) oper-
ates to avoid such a result. It 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. So long as the suit is not a
subterfuge for recovery by individuals on their individ-
ual claims, quasi-sovereignty militates against rejection of
any relevant evidence of injury.
Second, the key case on this subject, Texas v. New
Mexico, 482 U.S. 124, 96 L.Ed.2d 105, 107 S.Ct. 2279 (1987),
speaks broadly of providing a remedy for past breaches.
The exclusion of any otherwise admissible evidence of
injury would do violence to that approach. I rely on these
statements by the Court:
“We find no merit in [New Mexico's] submis-
sion that we may order only prospective relief,
that is, requiring future performance of compact
obligations without a remedy for past breaches.
If that were the case, New Mexico's defaults
could never be remedied.” 482 U.S. at 128.
“There is nothing in the nature of compacts
generally or of this Compact in particular that
counsels against rectifying a failure to perform
in the past as well as ordering future perfor-
mance called for by the Compact. By ratifying
the Constitution, the States gave this Court com-
plete judicial power to adjudicate disputes
ee
App. 35
among them, Rhode Island v. Massachusetts, 12
Pet. 657, 720, 9 L.Ed. 1233 (1838), and this power
includes the capacity to provide one State a
remedy for the breach of another.” 482 U.S. at
128.
“[The] lack of specific provision for a remedy in
case of breach does not, in our view, mandate
repayment in water and preclude damages. Nor
does our opinion in 462 U.S. 554, 77 L.Ed.2d 1,
103 S.Ct. 2558 (1983), necessarily foreclose such
relief. There, we asserted our authority in this
original action to resolve the case judicially,
rather than by restructuring the administrative
mechanism established by the Compact. That
authority extended to devising a method by
which New Mexico's obligation could be ascer-
tained and then quantifying New Mexico's past
obligation, as the Master has now done. We
have now agreed with him that New Mexico has
not fully performed, and we are quite sure that
the Compact itself does not prevent our order-
ing a suitable remedy, whether in water or
money.” 482 U.S. at 130, emphasis added.
“The Court has recognized the propriety of
money judgments against a State in an original
action, and specifically in a case involving a
compact. In proper original actions, the Eleventh
Amendment is no barrier, for by its terms, it applies
only to suits by citizens against a State.” 482 U.S.
at 130, emphasis added.
Against the background of the evidence in Texas v. New
Mexico, which found a shortfall to Texas farmers of
340,100 acre-feet, the Court’s 11th Amendment statement
is certainly persuasive, and to Kansas it is dispositive. It
must be acknowledged, however, that this case dealt with
App. 36
the question of whether any money damages could be
awarded at all, and not how they might be determined.
Third, as above noted, in the Laramie River decisions
the Court has already used evidence of individual claims
as the basis for an interstate apportionment of water. I see
no meaningful distinction between the water right claims
of the Wyoming cases, and looking to the entitlements of
individual ditches and water users in Kansas, and the
shortfalls thereto, in determining the damages of the
state.
Finally, in the case at hand, the State of 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. The states were urged
by this Court to settle their differences by compact, which
they did. If a money remedy is awarded for past compact
violations, the damages should include all losses that
have occurred as a result of such violations, including
those suffered by individual water users, subject only to
the overriding consideration that the remedy must finally
be a “fair and equitable solution.” Texas v. New Mexico,
482 U.S. 124, 134, 96 L.Ed.2d 105, 107 S.Ct. 2279 (1987).
The State of Kansas would be a feeble representative if it
were otherwise constrained.
The fundamental rule which I see at the heart of this
entire subject is that if the Court accepts a case between
states as one involving sovereignty or quasi-sovereignty,
it is then regarded, in law, strictly as state litigation, and
the 11th Amendment is not a factor. (See Maryland v.
Louisiana, 451 U.S. 725, 745, 68 L.Ed.2d 576, 101 S.Ct. 2114
(1981), note 21.) To adopt the Colorado view is essentially
App. 37
to allow the Eleventh Amendment to limit the “complete
judicial power” given this Court to adjudicate disputes
among the states. Texas v. New Mexico, supra at 128. The
Court's original jurisdiction is a substitute for the treaty
and war powers which the states surrendered when they
ratified the Constitution. Rhode Island v. Massachusetts, 37
U.S. (12 Pet.) 657, 725, 9 L.Ed.1233 (1838); Kansas v. Colo-
rado, 185 U.S. 125, 140, 46 L.Ed. 838, 22 S.Ct. 552 (1902);
North Dakota v. Minnesota, 263 U.S. 365, 372-73, 68 L.Ed.
342, 44 S.Ct. 138 (1923). I do not believe that the Eleventh
Amendment was intended to curtail this unprecedented
grant of judicial power to fully adjudicate a dispute
between states over the enforcement of an interstate com-
pact.
APPENDIX -— Exhibit 4
Section XV of Second Report (Prejudgment Interest)
App. 38
SECTION XV
PREJUDGMENT INTEREST
In their general briefing on remedies, the states have
also addressed the issue of prejudgment interest. In view
of the statement in Texas v. New Mexico, the entitlement to
post-judgment interest on any money award is appar-
ently not in issue.' 482 U.S. 124, 131 n.8, 96 L.Ed.2d 105,
107 S.Ct. 2279 (1987).
Kansas argues, however, that an award of prejudg-
ment interest is appropriate for the purpose of providing
complete compensation for the injuries it has suffered as
a result of Colorado's breach of the compact, whether the
form of remedy is in money or water. In Kansas’ view, the
remedy must be in “present value terms.” Kan. Brief re
Statement of Position at 15. Colorado opposes such an
award on equitable grounds, namely, the existence of a
good faith dispute over compact compliance, the absence
1 In Texas v. New Mexico, the Special Master found an
accumulated shortfall of 340,100 acre-feet, which he
recommended be made up over 10 years at 34,010 acre-feet
annually, together with “water interest” for any bad faith failure
to deliver. 482 U.S. at 127-28. The Court noted that in the event
of a water remedy, Texas would be entitled “to some form of
pest judgment interest for the period during which that
judgment is not satisfied.” Id. at 132, n.8. However, the Court
added: “We are unpersuaded, however, that ‘water interest,’
rather than money, should be awarded unless and until it proves
to be necessary.” Jd. Colorado states that if repayment in water
is recommended, post-judgment interest would be necessary
only if the water was not delivered as ordered by the Court.
Colo. Reply Brief at 27. Kansas strongly disagrees since delivery
of make-up water would probably have to extend over a
number of years.
App. 39
of any compact provisions requiring the payment of
money, and because the amount of any damages is not
readily ascertainable, that is, damages are unliquidated.
Colo. Reply Brief at 26-33.
In essence, Colorado argues in favor of the tradi-
tional approach to preyudgment interest which allowed -
and, in some jurisdictions still allows - an award of
prejudgment interest only on a liquidated claim or a
strictly construed statute. See, e.g., Montsopoulos v. Ameri-
can Mut. Ins. Co., 607 F.2d 1185, 1190 (7th Cir. 1979),
interpreting Wisconsin law; Clements Auto Co. v. Service
Bureau Corp., 444 F.2d 169, 189 (8th Cir. 1971), interpreting
Minnesota law; Tenneco Oil Co. v. Gaffney, 369 F.2d 306
(10th Cir. 1966), applying Wyoming law.
The rationale underlying the distinction between liq-
uidated and unliquidated damages, for the purpose of
awarding prejudgment interest, is that the defendant
should not have to pay interest on damages that cannot
be readily ascertained before judgment. By the nature of
the dispute, the defendant is unable to halt the accrual of
interest by making payment. Rothschild, Prejudgment
Interest: Survey and Suggestion, 77 Nw U.L. Rev. 192, 197;
D.Dobbs, Law of Remedies § 3.6(3) (2nd Ed. 1993).
This rationale, however, “has faced trenchant criti-
cism for a number of years.” City of Milwaukee v. Cement
Div., National Gypsum Co., 515 U.S. 189, 132 L.Ed.2d 148,
156, 115 S.Ct. 2091 (1995). Moreover, courts have recog-
nized that an award of prejudgment interest is appropri-
ate in order to provide complete compensation. General
Motors Corp. v. Devex Corp. 461 U.S. 648, 655-656, 76
L.Ed.2d 211, 218, 103 S.Ct. 2058 (1983); Funkhouser v. ].B.
App. 40
Preston Co., 290 U.S. 163, 168, 78 L.Ed. 243, 246, 54 S.Ct.
134 (1933); Miller v. Robertson, 266 U.S. 243, 257-58, 69
L.Ed. 265, 45 S.Ct. 73 (1924); Davis Cattle Co. v. Great
Western Sugar Co., 393 F.Supp. 1165, 1187, 1192-94
(D.Colo. 1975) (applying Colorado law), aff'd, 544 F.2d
436, 441-42 (10th Cir. 1976), cert. den., 429 U.S. 1094
(1977). Further, courts have determined that prejudgment
interest may be necessary to avoid unjust enrichment of a
defendant who has had the use of money or things which
rightly belong to the plaintiff. Martinez v. Continental
Enterprises, 730 P.2d (Colo. 1986). They have also recog-
nized in some instances that, if prejudgment interest is
not awarded, the defendant may have an incentive to
delay payment. D. Dobbs, Law of Remedies, supra, § 3.6(3)
and cases cited.
As a consequence, a majority of jurisdictions reject
the strict, traditional approach to awarding prejudgment
interest. (Rothschild, Prejudgment Interest: Survey and Sug-
gestion, supra, p. 204) As early as 1933, for example, the
Supreme Court stated:
“It has been recognized that a distinction, in this
respect, simply as between cases of liquidated
and unliquidated damages, is not a sound one.
Whether the case is of the one class or the other,
the injured party has suffered a loss which may
be regarded as not fully compensated if he is
confined to the amount found to be recoverable
as of the time of the breach and nothing is
added for the delay in obtaining the award of
damages. Because of this fact, the rule with
respect to unliquidated damages has been in
evolution, and in the absence of legislation the
courts have dealt with the question of allowing
App. 41
interest according to their conception of the
demands of justice and practicality.” Funkhouser
v. ].B. Preston Co., supra, 290 U.S. at 163, 168-169,
78 L.Ed. 243, 54 S.Ct. 134 (1933), citations omit-
ted.
Although it may be only dictum, and also an admi-
ralty case, the Court’s decision in City of Milwaukee v.
Cement Division, National Gypsum Co., 515 U.S. 189, 132
L.Ed.2d 148, 115 S.Ct. 2091 (1995) is so recent and pointed
that it must strongly influence the prejudgment interest
issues. At the outset, it should be acknowledged that the
case involves a maritime collision under admiralty law.
The general rule in such cases has been long established
that prejudgment interest should be awarded, subject
only to a limited exception for “peculiar” or “excep-
tional” circumstances. 132 L.Ed.2d at 154. The district
court in this case found such unusual circumstances. It
determined that the plaintiff bore 96 percent of the
responsibility for the disaster, while the City of Mil-
waukee bore only 4 percent of the fault, and ruled that it
would have been inequitable to award prejudgment inter-
est in light of the magnitude of plaintiff's contributory
negligence. The court of appeals made its own analysis of
the record and changed the apportionment of liability to
two-thirds to National Gypsum and one-third to the City.
It also reversed the judgment, which the Supreme Court
affirmed in a unanimous decision by Justice Stevens (Jus-
tice Breyer took no part in the decision).
After appropriate apportionment, the City’s one-
third share of damages owed to National Gypsum was
App. 42
$1.677 million, but National Gypsum also sought pre-
judgment interest in the sum of $5.3 million.? In uphold-
ing an award of prejudgment interest, the Court
dismissed the City’s argument of a good faith dispute
over its liability as having “little weight.” 132 L.Ed.2d at
155. The Court was also “unmoved” by the City’s conten-
tion that an award of prejudgment interest is inequitable
in a mutual fault situation. Id. at 157. Indeed, since lia-
bility had already been apportioned, the Court stated that
a “denial of prejudgment interest would be unfair.” Id.
“The essential rationale for awarding prejudgment inter-
est is to ensure that an injured party is fully compensated
for its loss.” Id. at 155.
The Court also discussed the liquidated /unliqui-
dated damage issue, noting that the distinction had never
become “so firmly entrenched in admiralty as it has been
at law,” and indeed has faced “trenchant criticism for a
number of years.” Id. at 156. Nearly 65 years ago the
Court remarked that the rule with respect to unliquidated
damages “has been in evolution.” Funkhouser v. J.B. Pres-
ton, supra, 290 U.S. at 168-69. And while the conceptual
differences have not been completely reconciled outside
of the admiralty context,’ the trend of the evolution is
clear: the compensatory rationale for prejudgment inter-
est has emerged as the dominant principle. Prejudgment
* The Court did not pass on the methodology used to
calculate prejudgment interest, nor upon the rate to be applied.
* See, for example, Blau v. Lehman, 368 U.S. 403, 7 L.Ed.2d
403, 82 S.Ct. 451 (1962) where prejudgment interest on
unliquidated damages was denied, and Jackson County v. United
States, 308 U.S. 343, 84 L.Ed. 313, 60 S.Ct. 285 (1939) where
prejudgment interest was denied on grounds of fairness.
App. 43
interest will be allowed in a majority of jurisdictions
irrespective of whether the obligation underlying such
interest is liquidated. Rothschild, Prejudgment Interest:
Survey and Suggestion, supra. The Court's recent decision
in City of Milwaukee strongly suggests that the kinds of
objections to prejudgment interest raised by Colorado are
now obsolete.
Kansas’ claim for damages in this case certainly rep-
resents an unliquidated claim. Determining the amount
of depletions to usable Stateline flow has required an
extensive trial. And determining the money damages as a
result of the shortfall, if that should be the remedy, has
yet to be tried. However, I have concluded that the unli-
quidated nature of Kansas’ money damages does not, in
and of itself, bar an award of prejudgment interest.*
That is not to say, however, that Kansas is necessarily
entitled to prejudgment interest on any award of money
damages or remedy requiring additional water to make
up the shortfall. Even in admiralty cases “such an award
has never been automatic.” City of Milwaukee, 132 L.Ed.2d
at 155. Allowance of interest on damages “is not an
absolute right,” and whether prejudgment interest ought
or ought not to be allowed rests “very much in the
discretion of the tribunal which has to pass upon the
subject...” Id. Interest is not recoverable “according to a
4 “Any fixed rule allowing prejudgment interest only on
liquidated claims would be difficult if not impossible to
reconcile with admuralty’s traditional presumption. Yet unless
we were willing to adopt such a rule - which we are not -
uncertainty about the outcome of a case should not preclude an
award of interest.” City of Milwawkee, 132 L.Ed.2d at 156.
App. 44
rigid theory of compensation for money withheld, but is
given in response to considerations of fairness.” Jackson
County v. United States, 308 U.S. 343, 352, 84 L.Ed. 313, 60
S.Ct. 295 (1939). The Court in City of Milwaukee stated that
it had never attempted “to exhaustively catalogue the
circumstances that will justify the denial of interest,” but
noted that “the most obvious example” would be the
plaintiff's responsibility for undue delay in prosecuting
the lawsuit, citing General Motors Corp v. Devex Corp., 461
U.S. 648, 657, 76 L.Ed.2d 211, 103 S.Ct. 2058 (1983). City of
Milwaukee, 132 L.Ed.2d at 155. The Court also added:
“Other circumstances may appropriately be invoked as
warranted by the facts of particular cases.” Id.
In the case at hand, depletions of usable Stateline
flows in violation of the compact reach back to 1950, and
Kansas seeks relief, preferably in money damages, for the
total amount of the shortfall since 1950. The Court has
already ruled that Kansas was not guilty of laches in
bringing this action, but nonetheless Kansas did not seek
to file its complaint until the end of 1985. The parties then
took almost five years in preparing for trial which began
in September of 1990. Whether any of the circumstances
and developments that have occurred since 1950 may be
considered in assessing the appropriateness of prejudg-
ment interest should be a matter of argument and proof
in future proceedings of the remedies phase of this case.
Much like Jackson County v. United States, we are without
“roots in history” in approaching the issue of damages
and prejudgment interest in a case of this kind. 308 U.S.
at 351, supra.
APPENDIX - Exhibit 5
Order dated January 11, 1999
re Modeling and Other Issues
App. 45
IN THE SUPREME COURT OF THE UNITED STATES
STATE OF KANSAS,
Plaintiff, No. 105 Original
v. October Term, 1998
STATE OF COLORADO.
Detendant,
UNITED STATES OF
AMERICA.
i
ORDER RE STATELINE DEPLETIONS FOR 1995-%
(Filed Jan. 11, 1999)
Following the Supreme Court's approval of my First
Report on liability issues, the states stipulated to deple-
tions to usable Stateline flow for the period 1950-85 in the
amount of 328,505 acre-feet. October 30, 1995 Stipulation.
Thereafter, additional trial segments totaling 26 days
were held concerning depletions for the period 1986-94.
In my Second Report, filed in September 1997, | recom-
mended to the Court that depletions to usable Stateline
flow for the 1986-94 period be determined to be 91,565
acre-feet. No exceptions to this determination were taken
by either state. The trial then proceeded to consider com-
pact compliance for the period 1995-96.
The 1996 Use Rules adopted by Colorado became
ettective on June 1, 1996, and thus were applicable only to
the last seven months of the 1995-96 period. Moreover,
during this first partial year of operation, the Rules called
for the replacement of only 60 percent of the out-of-
priority depletions in Colorado. The Use Rules provided
that Stateline depletions were to be determined through
App. 46
use of the H-I model, employing the Durbin usable flow
analysis with the Larson coefficients.
Mr. Schroeder undertook the task of updating the H-1
model with appropriate new data, and with the changes
necessary to represent the replacement programs then
under way in Colorado. RT Vol. 175 at 9, 15. His results
were presented to Kansas on October 27, 1997. Certain of
the changes and new data which he had included in the
model were accepted by the Kansas experts, and certain
additional changes were made at Kansas’ request. But at
the conclusion of those meetings, certain disagreements
still remained over how to model the 1995-96 period. RT
Vol. 173 at 19.
Trial resumed on May 11, 1998 to consider compact
compliance for 1995-96, and the modeling differences
which then existed. Initially, the Kansas evidence showed
Stateline depletions of usable flow in the amount of 8368
acre-feet for 1995-96. Kan. Exh. 862. The comparabie Col-
orado figure was 6597 acre-feet. Colo. Exh. 1064; RT Vol.
173 at 34. During this trial segment, however, experts for
both states indicated that these amounts needed to be
revised as a result of further discussions and additional
new data. These revisions were submitted to me later in
the form of Jt. Exh. 182. Kansas now claims depletions of
8196 acre-feet. Colorado’s model results show 6717 acre-
feet. Both states also briefed the modeling issues that lead
to these different results. This Order decides those issues.
App. 47
A. TRANSIT LOSSES FOR TRANSMOUNTAIN WATER.
The version of the H-I model used to estimate deple-
tions for 1986-94 was structured so that transit losses
resulting from transmountain water were not available
for diversion. Such losses return to the river, but were
passed directly to John Martin Reservoir or the Stateline.
The model did not allow those losses to be diverted by
any of the canal companies. Colo. Exh. 1064 at 3; RT Vol.
174 at 27; RT Vol. 175 at 36. Mr. Schroeder had always |
believed that this treatment of transit losses was
“improper.” RT Vol. 173 at 20, 90; Colo. Exh. 1064 at 3.
And the Kansas experts came to agree to the extent that a
“correction” was needed. RT Vol. 175 at 36; RT Vol. 175 at
123.
In determining depletions for 1995-96, Kansas there-
fore changed the H-I model in regard to transit losses. RT
Vol. 175 at 36. Kansas experts treated 10% of transit losses
from transmountain water as consumptive, but allowed
the remaining 90% to be available for diversion by the
next canal company in priority. RT 173 at 91. Colorado, on
the other hand, did not make such a change when it ran
the model for 1995-96 depletions. This was not a situation
where the Colorado experts thought that a change was
unneeded, or that the Kansas change did not improve the
model's representation of the system. Rather, Mr. Schroe-
der believed that his assignment was to update the
1986-94 version of the model, to insert the new data, and
to represent the replacement plans. RT Vol. 174 at 20-22,
24. He did not understand that model deficiencies in the
1986-94 version were to be addressed. RT Vol. 174 at 24.
App. 48
The impact of making this change is to increase Stateline
depletions for 1995-96 by approximately 617 acre-feet.
Experts for both states are in essential agreement that
this is a change that should be made. RT Vol. 173 at 91; RT
Vol. 174 at 20. Moreover, Kansas experts concluded that
such a change alone would not require the H-I model to
be recalibrated. RT Vol. 175 at 37, 126; Kan. Exh. 865, 866.
Schroeder concurred that this change would not make
much difference. RT Vol. 174 at 27-28. His concern, how-
ever, is that more needs to be done, both with respect to
transit losses as well as other changes “to better represent
the system.” RT Vol. 174 at 20-22, 27. Schroeder has
consistently objected to the model’s use of diversion
reduction and WANT factors, but his prior efforts to
eliminate these parameters have not been successful.
Kansas experts agree that it would be better to remove
these factors if the model could be calibrated as well
without them. RT Vol. 175 at 139. However, until better
data is available, it is the Kansas view that such artificial
parameters must remain.
Under the circumstances, and in determining 1995-96
depletions, I find that the Kansas change in the treatment
of transit losses from transmountain water should be
made. I count on the experts from both states to continue
to make such changes as will improve the accuracy of the
H-I model, without regard to whether those changes will
increase or decrease calculated depletions.
App. 49
B. ACREAGE IRRIGATED BY BOTH SURFACE WATER
AND SUPPLEMENTAL WELLS. ,
The H-I model assigns an amount of acreage in each
canal service area that has access to groundwater. Ini-
tially, the model included just two categories; that is,
acreage supplied with surface water only, and acreage
having access to both surface and well water. In deter-
mining depletions for 1995 and 1996, a new acreage cate-
gory was established for lands irrigated by well water
only, referred to as “sole source” acreage. RT Vol. 174 at
101. The states agreed upon the amounts of sole source
acreage. Colo. Exh. 1064 at 1; Kan. Exh. 862 at 3-4. Experts
for the parties, however, were unable to agree upon the
remaining acreage that had access to both surface and
supplemental well water.
The Kansas estimates are shown in Table 1 of Kansas
Exhibit 862. These values are consistent with the percent-
ages that have been used previously in the H-I model,
including the version used to determine depletions for
1986-94. RT Vol. 173 at 115; RT Vol. 174 at 101. Mr.
Schroeder concluded, however, that these values should
be changed in the model runs used for 1995 and 1996
compliance. The percentages which he used are shown in
Colorado Exhibit 1064 at 5, together with a comparison of
the Kansas percentages. Totaling the acreage in all canal
service areas, Kansas determined that 163,000 acres were
serviced by a combination of surface and groundwater,
while the comparable Colorado figure was 147,000 acres.
RT Vol. 174 at 102. The impact of the Colorado changes is
to reduce depletions of usable Stateline flow for the years
App. 50
1995 and 1996 by approximately 483 acre-feet. Jt. Exh.
182.
Recently, Colorado has developed a considerable
amount of new data on wells, showing that the number of
sole source wells is greater than previously understood;
moreover, that the number of active wells in 1996 was
substantially less than the total number of wells. RT Vol.
175 at 57: Colo. Exh. 1052. Mr. Schroeder testified that the
new information showing more sole source pumping
makes it “very apparent” that the original values used by
Kansas are inappropriate. RT Vol. 173 at 115. For exam-
ple, he pointed to the Bessemer Canal, which now shows
2605 sole source acreage out of a total of 19,130 acres.
Colo. Exh. 1064 at 5; RT Vol. 173 at 115, 119-20. However,
removal of the sole source acreage does not necessarily
indicate the percentage of the remaining acreage that still
receives both surface and groundwater. Indeed, Schroe-
der did not correlate the two. RT Vol. 173 at 119-20, 122.
With respect to the Bessemer Canal, he simply concluded,
on the basis of the permits and decrees that were
reviewed, that the Colorado study was superior; that the
57% figure applied by Colorado to indicate remaining
acreage receiving supplemental groundwater was more
accurate than the 100% figure in the H-l model. RT Vol.
173 at. 120, 122.
Based upon his belief that the H-I model thus over-
estimated the amount of acreage receiving supplemental
water, he changed the percentage values to correspond
with data developed by Colorado in 1990 for use in_its
Water Budget Model. RT Vol. 173 at 117-18; RT Vol. 174 at
100. The specific percentages used by Mr. Schroeder are
shown in Colo. Exhibit 1064 at 5. There ts nothing to
App. 51
show, however, that the 1990 percentages used by Mr.
Schroeder are more accurate than those included in the
H-I| model. The evidence on this point does not support
Mr. Schroeder’s changes as much as it underscores the
need for better data. That process is under way and is
expected to be completed in 1998.
Mr. Schroeder acknowledged that this is “still an area
that will need some work, and hopefully we will improve
it.” RT Vol. 173 at 123. Mr. Book also supported the need
for improvements, particularly in the collection of field
information on acreage irrigated by wells. RT Vol. 175 at
58. He understood that this was being pursued, referring
to the testimony of Bill W. Tyner.
Mr. Tyner is a registered professional engineer,
employed by the Colorado Division of Water Resources
as the groundwater use work group leader. RT Vol. 176 at
88. He testified to the work his group had been doing to
estimate the acreage irrigated by active wells in 1995 and
1996. RT Vol. 176 at 92. This included updating the var-
ious permits and decrees which Colorado had used in its
1990 Water Budget to determine acreage irrigated by
wells. At the time of his testimony, no field work had
been done, but this was contemplated as part of Colo-
rado’s ongoing effort to collect data concerning sole
source and supplemental well acreage. RT Vol. 176 at 104.
Farmer surveys had been called for, and were to be
tollowed up with some field verifications. RT Vol. 176 at
95. Also, his group was updating the 1985 aerial photo-
graphy with satellite imagery “that will allow us to deter-
mine more accurately all acreage values.” RT Vol. 176 at
96. He expected that this work would be done during
1998, allowing Colorado to do “a very good job” of
App. 52
“ee
identifying acreage served only by wells, and acreage
served by both wells and surface water. RT Vol. 176 at
108-09. It is significant in deciding this issue that Mr.
Schroeder did not include any of the work done by Mr. |
Tyner, but simply went back to Colorado’s 1990 data. RT
Vol. 176 at 117.
I conclude, therefore, that in determining depletions
for 1995 and 1996, that the acreage receiving supplemen-
tal groundwater should be represented in the H-I model
by using the same percentages approved for 1986-94. This
may, however, be a subject for review when Mr. Tyner’s
work is completed.
C. RELEASES TO THE STATELINE.
In determining depletions for 1995-96, the states were
also in disagreement over the amount of replacement
water for which Colorado should receive credit. Colorado
claimed credit at the Stateline for 3682 acre-feet; Kansas’
analysis reduced this credit to 3068 acre-feet. Kan. Exh.
862 at 9; Kan. Exh. 864 at 3. The impact of the Kansas
calculation is to increase depletions of usable flow by
approximately 268 acre-feet. Jt. Exh. 182.
During five days in April and three days in May, 1996
Colorado delivered replacement water to the Stateline at
the same time that Kansas called for releases from its
Article Il account in John Martin Reservoir. Article Il
water belongs to Kansas under the 1980 Operating Plan,
and is released on its call, together with additional flows
to offset the transit losses between the reservoir and the
Stateline. The issue between the states involves an
App. 53
accounting disagreement over the allocation of actual
Stateline flows between Colorado’s replacement deliv-
eries and Kansas’ Article II water.
Kansas expert, Dale Book, prepared a daily analysis
of Stateline flows for the months of April, May and June,
1996. Kan. Exh. 1064. The purpose of his study was to
determine how much of the replacement water released
to the river by Colorado actually reached the Stateline. RT
Vol. 174 at 129-30; Kan. Exh. 864. Book acknowledged that
this effort could “get very complicated.” RT Vol. 174 at
123. Nonetheless, in all but seven days during this three-
month period, the states agree upon the credits to which
Colorado is entitled. However, during the several days
when both replacement and Article II waters were pres-
ent at the Stateline, Book credited the flows first to the
delivery of Kansas’ Article II water, and then credited any
excess to Colorado as replacement water. RT Vol. 175 at
161, 166. This reduced the total credits claimed by Colo-
rado by some 614 acre-feet. Colorado, on the other hand,
took the opposite approach, allocating Stateline flows
first to replacement water and then the remainder to
Article II deliveries.
Colorado’s witness, Steven Witte, testified to an
annual agreement with Kansas which allowed “some
flexibility” in the delivery of Article II water, so that
deliveries would be accomplished “over the period of a
run” and not necessarily on a day-to-day basis. RT Vol.
176 at 12-13. In his judgment, Colorado’s approach thus
allowed full credit to Colorado for delivery of its replace-
ment water, while still providing Kansas with all of its
Article II deliveries, though perhaps not on a daily basis.
RT Vol. 176 at 14, 20-21. Kansas argued, based upon its
App. 54
daily flow analysis, that Colorado’s methodology allowed
Colorado to claim credit for water released to Kansas
from its Article II account. But Kansas did not demon-
strate that over time it was-denied the full measure of its
Article II releases. I conclude, therefore, that for 1995-96
Colorado is entitled to replacement water credit at the
Stateline in the amount of 3682 acre-feet.
Fortunately, this issue is not likely to arise again. In
1997 the Offset Account was established in John Martin
Reservoir. Colorado can now deliver replacement water
into this account, to be released at Kansas’ call. Kansas
thus has two separate accounts at its disposal in John
Martin Reservoir - its Article II water, and now also
replacement water made available by Colorado. Testi-
mony shows that Kansas identifies the particular account
from which water is to be released.
D. THE X-Y CANAL.
In 1996 the Lower Arkansas Water Management
Association purchased 66 cfs of the 69 cfs water right
decreed to the X-Y Canal, and dried up most of its 7700-
acre service area. RT Vol. 176 at 119; RT Vol. 174 at 110.
Landowners holding rights to 3 cfs did not sell, and
continued to irrigate about 180 acres. Kan. Exh. 862 at 7-8.
However, the irrigation supply for those acres no longer
came from river diversions, but rather from seepage and
return flows collected in the canal. RT Vol. 176 at 120. The
headgate of the canal has been plugged so that surface
diversions from the river are no longer available. Id.
Nonetheless, both the Lamar and Manvel Canals are
located hydrologically upgradient of the X-Y Canal, and
App. 55
apparently provide the source of the water collected and
used to irrigate the 180 acres. RT Vol. 176 at 120; RT Vol.
175 at 66-67.
The issue is how to properly represent these changed
conditions in the H-I model. Since the entire X-Y Canal
right was not purchased, Kansas originally suggested
that the portion of the right acquired (some 96%) be
allowed to return to the river, while the remainder be
applied to the land. RT Vol. 174 at 111. Mr. Schroeder,
however, decided that it would be more appropriate to
allow all of the diversion right to remain in the river, and
to represent use on the 180 acres by 3 cfs of pumping. RT
Vol. 173 at 87-88; RT Vol. i174 at 111; RT Vol. 177 at 39.
Kansas experts do not object to the 100% credit in the
river for the X-Y water, but disagree with the way in
which the pumping was modeled.
Mr. Schroeder recognized 3 cfs of pumping in both
runs of the model, that is, in the historic operation as well
as in the compact run. RT Vol. 173 at 88; RT Vol. 174 at
11}. This has the effect of treating the pumping as a
precompact use. RT Vol. 173 at 88; RT Vol. 175 at 65-73.
Colorado does not disagree that its model representation
essentially increases the State’s precompact pumping
rights by 3 cfs. RT Vol. 177 at 39-41. Rather, it attempts to
justify this treatment on the ground that such return
flows and seepage were actually being collected and used
during the precompact period. Mr. Book, however, was
unwilling to concede this factual basis, and the Colorado
evidence on historic use is sketchy at best. RT Vol. 177 at
40, 43-44; RT Vol. 176 at 120; RT Vol. 173 at 87-88; 129-32,
138-39. Colorado’s early data also showed that the X-Y
Canal was a losing ditch historically. Colo. Exh. 4* at B.24.
App. 56
I do not believe, however, that it is necessary to reach
the potentially difficult issues posed by Colorado’s mod-
eling of the X-Y situation; e.g., whether there was in fact
precompact use equivalent to 3 cfs; whether any such use
is already accounted for in the H-I model; whether any
such use should be considered as a precompact pumping
right; and if so, whether Colorado’s precompact pumping
right can be legally adjusted in view of my earlier deter-
mination and the approval of the Supreme Court. Kansas
originally suggested an alternate approach, discussed
briefly above. If, however, Colorado chooses to allow
100% credit for retiring the X-Y Canal right, then irriga-
tion of the 180 acres should be represented by the pump-
ing of a sufficient amount to provide a full supply, and
that amount should be included in the historic sum of the
model only. One of these two approaches should be used
in operating the H-I model to estimate 1995-96 deple-
tions.
E. SISSON WANT FACTORS.
The Sisson-Stubbs Canal is the “last ditch on the
system.” RT Vol. 173 at 89. Historically its facilities “fre-
quently washed out,” and the diversion dam was not
replaced after the 1965 flood. Colo. Exh. 1064 at 2; RT Vol.
174 at 17, 19; RT Vol. 175 at 75. The Sisson right of 11 cts
has now been converted to two wells, as authorized
alternate points of diversion. RT Vol. 176 at 121-22; RT
Vol. 173 at 89. The H-I model was calibrated using a
WANT factor set to “one” for Sisson. This represents
about 60% of a full supply, and was based upon historical
diversion records before the diversion dam was lost in
App. 57
1965. RT Vol. 173 at 142-43. For Sisson, this was the
WANT factor used in the model for 1986-94 depletions,
and was also used by Kansas in estimating 1995-96 deple-
tions. Mr. Schroeder acknowledged that a WANT factor of
1.0 is appropriate “if you look at the historic diversions”
and that it “probably does produce, on average, a better
prediction of diversion by the Sisson when it did divert
back in pre-’70.” RT Vol. 173 at 89, 142.
However, Mr. Schroeder believed that certain water
uses did not show up in the records, that sometimes
Sisson pumped directly from the river, and in the 1950s
they began to rely partially on wells rather than always
maintaining their diversion facilities. RT Vol. 173 at 89-90,
142-45. Based on this understanding, Mr. Schroeder
increased the Sisson WANT factor to 1.7 in his use of the
H-I model for 1995-96. This factor was intended to be
“more or less representative of a full supply” if it were
available. RT Vol. 173 at 89-90. Colorado, however, had no
actual data on any amounts of water that might have
been taken, but which were not recorded during the
calibration period. RT Vol. 173 at 147. Nor was there
evidence as to how any pumping in the 1950s was
treated. Moreover, Mr. Schroeder’s testimony itself was
uncertain: “very possibly” more water was taken; the
records “may not have reflected the total use under the
Sisson; the early diversion records “probably” did not
include some of the pumping that occurred at the river.
RT Vol. 173 at 145-46.
Kansas prepared Exhibit 868 which compared
observed diversions with those predicted by the H-I
model using the existing WANT factor of 1.0, and with
the Colorado change to 1.7. For the period of 1951-64, that
App. 58
is, before the Sisson headgate was washed out, observed
diversions averaged 628 acre-feet annually. The H-I
model predicted 768 acre-feet, or 122% of the observed
diversions. With the WANT factor change made by Colo-
rado, the model predicted diversions of 1102 acre-teet, or
175% ot the observed Sisson diversions.
| conclude that the evidence does not support the
model change made by Colorado tor Sisson in estimating
1995-96 depletions.
It should be noted that Mr. Schroeder's increase in
the Sisson WANT tactor was part of an earlier recommen-
dation which | rejected. RT Vol. 174 at 14-15; Colo. Exh.
973. Lam well aware that Mr. Schroeder has consistently
objected to the WANT tactors in the H-I model. But they
are deeply imbedded in the structure ot the model, and I
doubt that they should be addressed on an ad hoc basis.
Counsel tor Colorado has suggested the need tor a more
comprehensive review that may have merit. RT Vol. 173
at 10-LL. The tunction ot the WANT tactors in the H-l
model is to determine how much water ts needed by any
particular ditch. In part, this depends upon the amount ot
acreage receiving river water. Colorado indicates that its
recent work has identified signiticantly more sole source
acreage (irrigated by wells only) than the model currently
assumes. Counsel says that such sole source acreage
should be deducted trom the acreage that was historically
assumed to have wanted river water. However, he adds
that this ts a task involving “more extensive time,” and to
be done with “Kansas participation.” RT Vol. 173 at 10.
App. 59
F. WILEY/SAPP ALTERNATE POINTS OF DIVER-
SION.
The final dispute over the 1995-96 depletions con-
cerns modeling tor the Wiley Drain and the Sapp Ditch.
Precompact surtace rights have been decreed to both of
these ditches. Rights in the Wiley Drain flows were
decreed in 1906 with appropriation dates of 1895 and
1896. RT Vol. 175 at 80. The decree for the Sapp Ditch was
entered in 1909 with an 1896 priority. RT Vol. 175 at 87.
Later, wells as alternate points of diversion were decreed
tor both ditches. Kan. Exh. 830, Case W-4496-97 tor Wiley,
and Case 89YCWS2 tor Sapp. The present issue is how to
model the pumping trom such wells.
The amount of pumping from these wells, and the
actual impact on depletions ts negligible.! However, Kan-
sas tears that a precedent may be involved, and claims
that Colorado's modeling of the pumping “has.the poten-
tial tor expanded use.” Kan. Exh. 862 at 2. But neither
state should be apprehensive. This ts a narrow decision,
limited to the evidence on a situation that may be unique.
Until this point in time, pumping trom the Wiley and
Sapp wells has been included in the H-Il model as post-
compact pumping. RT Vol. 175 at 15, 21. The Colorado
Water Budget treated such pumping in the same fashion.
RT Vol. 175 at 21. Recently, however, when the LAWMA
plan was presented, Colorado became aware of the wells
' In the last two years, pumping under the Wiley Drain
rights amounted to only 9 acre-teet. RT 175 at 87. And the
depletion impact tor 1995-96 trom beth Wiley and Sapp
pumping is only 7 acre-teet. Jt. Exh 182.
App. 60
as alternate points of diversion, and a request was made
for such recognition. Mr. Schroeder, then, in his 1995-96
modeling excluded these amounts from post-compact
pumping. RT 175 at 14-15. Mr. Simpson testified that,
insofar as he is aware, the alternate points of diversion
for the Wiley and Sapp ditches are the only ones that
have been overlooked. RT Vol. 177 at 53.
Kansas does not object to the concept that pumping
under an alternate point of diversion decree may be
modeled as a surface use. RT Vol. 175 at 15. Rather, it
complains that the Wiley decree in particular does not
provide adequate protections against enlarging the his-
torical surface use.? RT Vol. 175 at 16. Mr. Book pointed
out that the Wiley decree does not limit pumping to the
surface right priority. RT Vol. 175 at 20. Hence, pumping
could occur when water would not have been available
under the surface right, which is a “junior right.” RT Vol.
177 at 66. While the Wiley decree imposes a 600 acre-feet
annual limit on pumping, Book also believes that historic
surface diversions did not reach that amount.* RT Vol.
175 at 17-18.
Yet while Book testified to the potential for abuse and
expanded use under the Wiley decree, he could not show
2 Kansas evidence concentrates on the Wiley decree that in
1978 allowed conditional pumping. Kan. Exh. 830. The Sapp
decree came later, in 1994, and contains numerous conditions,
including a pumping limit of 350 acre-feet annually “allocated
to the Sapp Ditch priority.” Kan. Exh. 830, Finding 14(c)(d).
3 Finding No. 8 in the Wiley decree states that during years
of better flow, diversions of 6 cfs occurred for approximately 60
days, for a total of about 600 acre-feet. Kan. Exh. 830.
idl
App. 61
that such increase actually occurred. He acknowledged
that he did not know what the historic surface use was.
RT Vol. 175 at 21. Moreover, there was no evidence of
injury from any lag effect of pumping.
| conclude, therefore, that it was proper for Colorado
in modeling the 1995-96 depletions to exclude the Wiley
and Sapp pumping from <alculations of post-compact
pumping. Hopefully, this will not be a recurring kind of
issue. Book testified that not many decrees for alternate
points of diversion exist, and that you can’t get one
anymore without showing non-injury. RT Vol. 175 at 20.
G. ORDER.
In a conference call on these modeling issues, counsel
agreed that I could not use Jt. Exh. 182 to make direct
adjustments to the depletion figures submitted earlier;
that it would be necessary to rerun the H-I model once
the modeling issues had been decided. Accordingly, |
hereby direct the states to rerun the model in accordance
with the decisions made herein, for the purpose of deter-
mining depletions to usable Stateline flow for the years
1995-96, and that the results be forwarded to me.
DATED: January 11, 1999
/s/ Arthur L. Littlheworth
Arthur L. Littleworth
Special Master
App. 62
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
I am a citizen of the United States and a resident of
the County aforesaid; I am over the age of eighteen years
and not a party to the within entitled action; my business
address is Best, Best & Krieger, 3750 University Avenue,
400 Mission Square, Riverside, California 92502.
1 am readily familiar with Best, Best & Krieger's
practice for collecting and processing correspondence for
mailing w:th the United States Postal Service. Under that
practice, all correspondence is deposited with the United
States Postal Service the same day it is collected and
processed in the ordinary course of business.
On January 11, 1999, I served the within ORDER RE
STATELINE DEPLETIONS FOR 1995-96 placing a copy of
the document in a separate envelope for each addressee
named below and addressed to each such addressee as
follows:
John B. Draper, Esq.
Montgomery & Andrews
325 Paseo de Peralta
P.O. Box 2307 “
Sarita Fe, New Mexico 87504-2307
David W. Robbins, Esq.
Hill & Robbins
100 Blake Street Building
1441 Eighteenth Street
Denver, Colorado 80202
App. 63
Jeffrey P. Minear
Assistant to the Solicitor General
Office of the Solicitor General
United States Department of Justice
Constitution Avenue & Tenth Street, N.W.
Washington D.C. 20530
Andrew F. Walch, Esq.
James J. DuBois,, Esq.
U.S. Department of Justice
General Litigation Section
999 18th Street, Suite 945
Denver, Colorado 80202
On January 11, 1999, at the office of Best, Best &
Krieger, 3750 University Avenue, 400 Mission Square,
Riverside, California 92502, I sealed and placed each
envelope for collection and deposit by Best, Best &
Krieger in the United States Postal Service, following
ordinary business practices.
I declare under penalty of perjury under the laws of
the State of California, that the foregoing is true and
correct.
Executed on January 11, 1999, at Riverside, Califor-
nia.
/s/ Sandra L. Simmons
Sandra L. Simmons
APPENDIX - Exhibit 6
Order dated July 28, 1999 re Depletions for 1995-96
App. 64
IN THE SUPREME COURT OF THE UNITED STATES
STATE OF KANSAS,
Plaintiff,
No. 105 Original
V. October Term, 1998
STATE OF COLORADO,
Defendant,
UNITED STATES OF
AMERICA,.
Intervenor.
meee ee eee ee
ORDER RECOMMENDING THE AMOUNT OF
DEPLETIONS OF USABLE STATELINE
FLOW FOR PERIOD OF 1995-96
(Filed July 28, 1999)
On January 11, 1999 I issued an Order directing the
states to rerun the H-I model, in accordance with the
decisions made in such Order, to determine depletions of
usable Stateline flow for the years 1995-96. That has been
done, and the results have been forwarded in the form of
Joint Exhibit 183.
In accordance with the results shown in Joint Exhibit
183, I hereby find that depletions of usable Stateline flow
for the 1995-96 period are 7935 acre-feet, and recommend
to the Supreme Court that such depletions be determined
in this amount. Joint Exhibit 183 also totals depletions of
usable flow for the full 1950-96 period at 428,005 acre-
feet.
App. 65
The 1995-96 depletions are also based in part on Joint
Exhibit 182, and Joint Exhibits 182 and 183 are hereby
admitted into evidence.
DATED: July 28, 1999.
/s/ Arthur L. Littleworth
ARTHUR L. LITTLEWORTH
Special Master
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
lam a citizen of the United States and a resident of
the County aforesaid; I am over the age of eighteen years
and not a party to the within entitled action; my business
address is Best, Best & Krieger, 3750 University Avenue,
400 Mission Square, Riverside, California 92502.
| am readily familiar with Best, Best & Krieger's
practice for collecting and processing correspondence tor
mailing with the United States Postal Service. Under that
practice, all correspondence 1s deposited with the United
States Postal Service the same day it is collected and
processed in the ordinary course of business.
On July 28, 1999, | served the within ORDER REC-
OMMENDING THE AMOUNT OF DEPLETIONS OF
USABLE STATELINE FLOW FOR THE PERIOD OF
1995-96 by placing a copy of the document in a separate
App. 66
envelope for each addressee named below and addressed
to each such addressee as follows:
John B. Draper, Esq.
Montgomery & Andrews
325 Paseo de Peralta
P.O. Box 2307
Santa Fe, New Mexico 87504-2307
David W. Robbins, Esq.
Hill & Robbins .
100 Blake Street Building
1441 Eighteenth Street
Denver, Colorado 80202
Jeffrey P. Minear
Assistant to the Solicitor General
Office of the Solicitor General
United States Department of Justice
Constitution Avenue & Tenth Street, N.W.
Washington D.C. 20530
James J]. DuBois, Esq.
U.S. Department of Justice
General Litigation Section
999 18th Street, Suite 945
Denver, Colorado 80202
On July 28, 1999, at the office of Best, Best & Krieger,
3750 University Avenue, 400 Mission Square, Riverside,
California 92502, | sealed and placed each envelope for
collection and deposit by Best, Best & Krieger in the
United States Postal Service, following ordinary business
practices.
App. 67
I declare under penalty of perjury under the laws of
the State of California, that the foregoing is true and
correct.
Executed on July 28, 1999, at Riverside, California.
/s/ Sandra L. Simmons
Sandra L. Simmons
APPENDIX - Exhibit 7
Order dated March 22, 2000 re Mitigation of Damages,
Colo. Exh. 1096
App. 68
IN THE SUPREME COURT OF THE UNITED STATES
STATE OF KANSAS,
Plaintiff, im
aintiff No. 105 Original
V. October Term, 1998
STATE OF COLORADO,
ee ee ee
Defendant,
UNITED STATES OF
AMERICA,
Intervenor.
ORDER RE KANSAS’ OBJECTION TO
EVIDENCE ON MITIGATION
(Filed March 22, 2000)
On December 15, 1999, Kansas filed a written objec-
tion to Colorado evidence related to mitigation of Kansas’
damages arising from Colorado’s compact violations. The
objection dealt specifically with certain portions of Pro-
fessor Wichelns’ expert report (Colo. Exh. 1096) and his
testimony on the subject. Colorado filed a written
response on March 14, 2000.
In Professor Wichelns’ view, a number of “oppor-
tunities” existed to mitigate damages to those lands irri-
gated with surface water only. Colo. Exh. 1096 at 90.
Primary emphasis was on the claim that such farmers
“could have mitigated their damages” by drilling wells.
Id at viii. Additionally, however, the report suggests that
such farmers could have mitigated potential economic
losses from depletions of usable Stateline flows by: (1)
App. 69
participating in government set-aside programs; (2) sign-
ing a long-term contract to remove acreage from farming
under the Federal Conservation eserve Program; (3)
taking out all-risk crop insurance uncer the Federal Crop
Insurance Act of 1938; and (4) applying for federal disas-
ter payments: Colo. Exh. 1096 at 90-104.
The doctrine of avoidable consequences, or mitiga-
tion of damages, holds that a party cannot recover dam-
ages that it could have avoided through reasonable
efforts. Stated affirmatively, an aggrieved party must
make reasonable efforts to lessen its damages, depending
upon the circumstances of the case. Berger v. Iron Workers
Reinforced Rodmen, Local 201, 170 F.3d 1111 (D.C.Cir.
1999); Hidalgo Properties, Inc. v. Wachovia Mortgage Co., 617
F.2d 196, 200 (10th Cir. 1980). The defendant bears the
burden of proving that the plaintiff failed to take reason-
able steps to mitigate its damages. Jones v. Consolidated
Rail Corp., 800 F.2d 590, 593 (6th Cir. 1986); Pennzoil
Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1475
(5th Cir. 1991) (citing Tennessee Valley Sand & Gravel Co. v.
M/V DELTA, 598 F.2d 930, 933 (5th Cir. 1979). The duty to
mitigate damages does not arise until the injured party
has reason to know that a breach has occurred. Oddi v.
AYCO Corp., 947 F.2d 257, 264 (7th Cir. 1991); United States
v. Karlen, 645 F.2d 635, 640 (8th Cir. 1981).
Under the circumstances of this case, Colorado has
the burden of proving that Kansas did not undertake
reasonable measures to mitigate its damages after the
compact violations were known. Colorado acknowledges
this to be the rule. Colo. Response at 3. Much of Professor
Wichelns’ evidence, however, focused on the opportunity,
App. 70
as well as the economic advantages, of drilling supple-
mental wells in the 1950s and 1960s before the compact
violations were known. Colo. Exh. 1096 at 93-97, Table
CO-N1. I found in my First Report, and the Supreme
Court affirmed, that the extent of postcompact well
pumping in Colorado was not generally known until
approximately 1968. First Report, at 169; Kansas v. Colo-
rado, 514 U.S. 673, 688-689 (1995). Even in the 1970s, when
the extent of pumping in Colorado was a matter of com-
mon knowledge, it does not necessarily mean that the
impact of such pumping on usable Stateline flows was
generally known or understood. First Report, at 169.
Moreover, Colorado was certainly in a position to be
aware of any compact violations as early in time as Kan-
sas. Whenever that may have occurred, Colorado also
could have reduced potential damages in Kansas by com-
pact compliance. A damage award will not be reduced on
account of damages which the defendant could have
avoided as easily as the plaintiff. Buras v. Shell Oil Co., 666
F.Supp.919, 924-25 (S.D. Miss. 1987) (citing Shea-S & M
Ball v. Massman-Kiewit-Early, 606 F.2d 1245, 1249 (D.C. Cir.
1979).
In its written response, Colorado agrees that Kansas’
duty to mitigate did not arise prior to its knowledge of
the compact violations, and Colorado puts this date at
1984. Colo. Response at 3. Colorado states that in 1984
Kansas received an engineering report which concluded
that postcompact well pumping in Colorado had depleted
usable Stateline flows. Id., fn. 1 at 3. Colorado suggests,
however, if the values of water estimated by the Kansas
experts are reasonable, then allowing the construction of
App. 71
additional wells “would have been a reasonable means to
mitigate damages after 1984.” Id.
With respect to the claim that Kansas farmers, at any
time, should have drilled supplemental wells to irrigate
those lands having access only to surface flows of the
Arkansas River, I find such claim to be unreasonable.
Aside from the substantial capital costs required to
develop such pumping systems,! Kansas should not be
required to further deplete its groundwater resources.
Depletions of usable Stateline flows, over the 1950-94
period, have reduced groundwater recharge from the
river and from canal, ditch and reservoir seepage by
224,424 acre-feet. 1998 Stipulation, Table 4B, Cols. ah, ai,
aj, and 2nd Col. from right. When replacement pumping
is added to these recharge losses, the total impact on
Kansas groundwater is 324,866 acre-feet. 1998 Stipulation,
Table 4B, last column to right. Together, the reduced
groundwater recharge and the increased pumping, have
resulted in lowering groundwater levels over a wide
region from 0.5 feet along the perimeter tu over 8.0 feet in
the central part. Kan. Exh. 874 at 8, Fig. 2. These are
permanent losses, both as to the loss of groundwater in
storage, and as to increased pump lifts. Kan. Exh. 892,
Section B at 4.
These impacts on Kansas groundwater resources go
far beyond the ditch service areas of the Kansas canal
1 Although Colorado’s expert economist, with hindsight,
might demonstrate the profitability of drilling new wells, it is
understandable that farmers at the time might not have had the
capital available, or the willingness to assume a long term debt.
Colo. Exh. 1096 at 93 et seq.
App. 72
companies. The canals deliver surface water from the
Arkansas River to about 44,000 acres, while the regional
area of affected groundwater contains about 790,000
acres. 1998 Stipulation, Table 4B; Kan. Exh. 874 at 9.
Pumping in the entire region, including the ditch service
areas, has increased substantially over the years, from
about 77,000 acre-feet in 1951 to about 718,000 acre-feet in
1988. Kan. Exh. 874 at 12. The region is severely over-
drafted. A 1985 USGS study covering about 850,000 acres
in Kearny and Finney Counties estimated that about
531,700 acre-feet were withdrawn from groundwater stor-
age during the period of 1974-1980. Jt. Exh. 140 at 1, Table
1 at 37. To be sure, most of the increased pumping and
overdraft results from the actions of water users in Kan-
sas that are unrelated to river depletions caused by Colo-
rado. Nonetheless, I do not believe that it is reasonable as
a matter of law to call for still more pumping, causing
further damage to Kansas and a permanent loss of more
groundwater resources, in order to alleviate other dam-
ages caused by Colorado. Mitigation is not meant to
result in substitute damage.
I am aware that Colorado uses evidence of potential
increases in net farm income from pumping groundwater
in order to argue that the values of water in the Kansas
analysis are excessive. This Order is not meant to exclude
evidence for that purpose. It is related only to the legal
duty to mitigate.
Concerning the remaining mitigation “opportunities”
cited by Professor Wichelns, I find that Colorado falls far
short of meeting its burden of proof, even if some of these
programs might qualify legally as appropriate mitigation
measures. It is not sufficient to state that such programs
App. 73
would “likely” offset farm losses. Colo. Exh. 1096 at viii,
91, 98, 102. None of the data discussed in connection with
government price support programs, the conservation
reserve program, crop insurance, OF federal disaster pay-
ments, was directed to the lands within the canal service
areas, let alone to the surface water only lands. Nor do
such data and discussion show whether the surface water
only lands would actually have qualified under any of
the programs; or if so, what the costs and_consequences
might have been; or what amounts might have been
recovered to offset any damages incurred by virtue of the
depletions.
Accordingly, I find that it is not reasonable as a
matter of law to require Kansas to mitigate its loss of
surface flows from the Arkansas River by additional well
pumping, and that the remaining mitigation measures
proposed are too speculative to be considered. The Kan-
sas objection is sustained, and the specific portions of
Colo. Exh. 1096 identified in the Kansas motion are
stricken, together with any testimony of Professor Wich-
elns in support thereof.
DATED: March 22, 2000
/s/ Arthur L. Littleworth
ARTHUR L. LITTLEWORTH
Special Master
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
I am a citizen of the United States and a resident of
the County aforesaid; | am over the age of eighteen years
App. 74
a not . party to the within entitled action; my business
poe ress is Best, Best & Krieger, 3750 University Avenue
Mission Square, Riverside, California 92502. )
} am readily familiar with Best, Best & Krieger’
practice for collecting and processing Persea eatie f
mailing with the United States Postal Service. Under pod
practice, all correspondence is deposited with the United
States Postal Service the same day it is collected nd
processed in the ordinary course of business. ~
On pogean 22, 2000, I served the within ORDER RE
gen OBJECTION TO EVIDENCE ON MITIGA-
by placing a copy of the document in a separate
envelope for each addressee named below and addressed
to each such addressee as follows:
John B. Draper, Esq.
Montgomery & Andrews
325 Paseo de Peralta
P.O. Box 2307
Santa Fe, New Mexico 87504-2307
David W. Robbins, Esq.
Hill & Robbins
100 Blake Street Building
1441 Eighteenth Street
Denver, Colorado 80202
Jeffrey P. Minear
Assistant to the Solicitor General
Office of the Solicitor General
United States Department of Justice
Constitution Avenue & Ti
: enth St
Washington D.C. 20530 oe
App. 75
James J. DuBois, Esq.
U.S. Department of Justice
General Litigation Section
999 18th Street, Suite 945
Denver, Colorado 80202
On March 22, 2000, at the office of Best, Best &
Krieger, 3750 University Avenue, 400 Mission Square,
Riverside, California 92502, I sealed and placed each
envelope for collection and deposit by Best, Best &
Krieger in the United States Postal Service, following
ordinary business practices.
I declare under penalty of perjury under the laws of
the State of California, that the foregoing is true and
correct.
Executed on March 22, 2000, at Riverside, California.
/s/ Sandra L. Simmons
Sandra L. Simmons
APPENDIX - Exhibit 8
Order dated May 1, 2000 re Objection to
Expert Testimony
(Daubert Motion)
App. 76
IN THE SUPREME COURT OF THE UNITED STATES
STATE OF KANSAS,
iaineiet, No. 105 Original
Vv. October Term, 1999
STATE OF COLORADO,
Defendant,
UNITED STATES OF
AMERICA,
Intervenor.
i
ORDER OVERRULING COLORADO'S OBJECTION
TO THE ADMISSIBILITY OF EXPERT TESTIMONY
REGARDING SECONDARY ECONOMIC DAMAGES
(Filed May 1, 2000)
The Kansas claim for damages includes secondary or
indirect economic losses to the Kansas economy resulting
from the increased costs of pumping and crop production
losses. Kansas employed two widely recognized experts,
Professor Joel R. Hamilton and Dr. M. Henry Robison, to
estimate these secondary economic damages. At the con-
clusion of the cross-examination of these experts, Colo-
rado made an objection to the admissibility of all
testimony concerning the analysis of secondary economic
impacts. RT Vol. 187 at 54. The objection was based upon
the argument that the testimony and exhibits of the Kan-
sas experts did not meet the tests for expert testimony set
forth in the Daubert and Kumho Tire Co. cases.' Colorado
' Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co., Ltd. v.
App. 77
filed a written brief in support of its objection, and Kan-
sas was given the opportunity to reply. Colorado also
renewed its “gatekeeper” objection to keep Professor
Hamilton off the stand when he returned to testify on
rebuttal. RT Vol. 206 at 7. That objection was overruled,
and the testimony and evidence on secondary economic
damages was completed. However, the basic Colorado
objection, in essence a motion to strike, was taken under
submission. RT Vol. 206 at 6.
Rule 702 of the Federal Rules of Evidence provides:
“If scientific, technical, or other specialized
knowledge will assist the trier of fact to under-
stand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowl-
edge, skill, experience, training, or education,
may testify thereto in the form of an opinion or
otherwise.”
In the Daubert case, the U.S. Supreme Court addressed
the admissibility of scientific expert testimony under this
Rule. The case involved the use of a prescription drug,
Bendectin, taken during pregnancy, and the allegation
that it had caused serious birth defects. A summary judg-
ment was granted on behalf of the defendant drug com-
pany based upon a vast body of epidemiological data
concerning the drug. The plaintiff's expert testimony,
which relied upon animal-cell and live animal studies,
and chemical structure analyses, was ruled inadmissible.
Relying upon Frye? the trial court found that these
Carmichael, 526 U.S. __, 119 S.Ct. 1167, 143 L.Ed.2d at 238
(1999).
2 Frye v. United States, 54 App. DC 46, 293 F. 1013 (3965).
App. 78
studies were not “generally accepted” by the scientific
community as being reliable.
The Supreme Court recognized that the “general
acceptance” test had been the dominant standard for
some 70 years since the Frye case, but nonetheless sharp
divisions existed among the courts. The Court noted that
the Frye decision predated Rule 702, and held that the
general acceptance test, as the exclusive standard for
admissibility of expert scientific testimony, was incom-
patible with the Federal Rules. The Rules, said the Court,
assign to the trial judge “the task of ensuring that an
expert's testimony both rests on a reliable foundation and
is relevant to the task at hand.” 509 U.S. at 597. The Court
emphasized that the Rule 702 inquiry is a “flexible one.”
Id. at 594.
The Court also discussed specific factors such as
testing, peer review, error rates, and general acceptability
in the scientific community, which might prove helpful in
determining the admissibility of a particular scientific
“theory or technique.” Id. at 593-94. These factors are
nicely summarized in the Kumho Tire case,* but the Court
makes it clear that they “may or may not be pertinent in
assessing reliability.” 143 L.Ed. 2d at 251. They can nei-
ther be ruled out, nor ruled in, since “Too much depends
upon the particular circumstances of the particular case
at issue.” Id. at 252. The objective of the Daubert gatekeep-
ing obligation, said the Court, is “to enforce the reliability
and relevancy of expert testimony,” and in this inquiry
* Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.___, 143 L.Ed. 2d
238, 119 S.Ct. 1167.
App. 79
the trial court “must have considerable leeway.” Id. at
252.
The Kumho Tire case involved the blowout of a tire,
claimed to be defective by design or manufacture, which
resulted in the death of a passenger. While the plaintiff’s
expert testimony was more technical than scientific the
Court held that the Daubert ruling applies not only to
scientific expert testimony, but to “all expert testimony.”
Id. at 250. In the case at hand, the Colorado objection
relates to the testimony of one expert qualified in the area
of “agricultural economics,” and the other in the area of
“economic modeling.” RT Vol. 185 at 66; RT Vol. 186 at 55.
Clearly they are both subject to the principles in the
Daubert and Kumho Tire cases.
The secondary impacts to the Kansas economy as a
whole were estimated through a process known as an
input-output analysis. This process traces the ripple
effects of the depletions within the ditch service areas,
and the lowered groundwater levels in the adjacent
region, throughout the statewide economy. The study of
secondary economic impacts as part of the discipline of
economics dates back to the mid-eighteenth century in
France. RT Vol. 185 at 68. However, it was not until the
1930s that the concepts were more rigidly specified and
converted to a mathematical rigor by Professor Leontief
at Harvard University. Id. at 69. He received a Nobel
Prize for his work. Id. The use of input-output computer
models came into common usage after World War II. Id. at
71. The methodology, that is, the mathematics, of these
models is formalized in a textbook by Miller and Blair,
now considered the “bible” for input-output analysts. RT
App. 80
Vol. 185 at 72-73; RT Vol. 186 at 78; Kan. Exh. 953. Begin-
ning in the 1970s, with the rapid development of com-
puter power, it became possible to construct input-output
models for regions based on data collected and assem-
bled by the federal government and others. RT Vol. 185 at
74; RT Vol. 186 at 59-60. The regional model constructed
and used by the Kansas experts in this case to compute
secondary economic damages applies accepted Miller and
Blair principles. RT Vol. 185 at 72-73.
The Kansas regional model was constructed by Dr.
Robison. It begins with the use of an input-output model-
ing system known as IMPLAN. This is a framework
which uses national level coefficients, and from that start-
ing point IMPLAN can calculate an appropriate region-
specific, input-output model. RT Vol. 185 at 81. IMPLAN
was developed in the early 1980s by the U.S. Forest
Service for use in land management impact planning and
analysis. Kan. Exh. 892, Section D at 5. However, the
IMPLAN model is now maintained by the U.S. Depart-
ment of Commerce, Bureau of Economic Analysis. RT Vol.
186 at 57, 61-62. It is a model that includes extensive
survey data for the entire United States economy, cover-
ing more than 500 sectors of economic detail. It shows
who sells to whom, and who buys from whom. In
essence, the input-output model is a very elaborate dou-
ble-entry accounting system. The sales to various sectors
across a row have to balance with purchases from each
sector down the column. RT Vol. 186 at 57-58.
In 1987 a private corporation, the Minnesota
IMPLAN Group, located at the University of Minnesota,
began work on regional IMPLAN data and software. Kan.
Exh. 962; RT Vol. 186 at 59. The group now maintains data
App. 81
at the county level, including statistics on employment,
income, dividends, interest, rents, transfer payments,
earnings, and other kinds of information that are needed
to build a model, and these data have been privatized. RT
Vol. 186 at 59-60. More than 125 significant studies and
research projects have used IMPLAN software and these
regional data since they have become commercially avail-
able. Id. at 60. The Kansas input-output model developed
by Dr. Robison takes the national model, couples it with
region-specific information, and converts the national
model into a regional input-output model for the State of
Kansas. Id. at 62.
In 1996-97, the U.S. Department of Commerce, Eco-
nomic Development Administration, assessed the eco-
nomic impact of 175 of its recent public works projects.
Dr. Robison was hired to do the economic modeling for
this study, in association with Princeton and Rutgers
Universities. He constructed 175 different IMPLAN
models to conduct the work. RT Vol. 186 at 50. Dr.
Robison is now working with the Economic Development
Administration on a new study that will involve con-
structing between 800 and 900 county-level IMPLAN
models. Id. at 51. In 1997 Dr. Robison worked for the
Colorado Department of Transportation to build about 10
IMPLAN models for different subregions of the Colorado
economy. Id. at 51-52. The record discloses many more
examples of input-output modeling, but perhaps it is
sufficient here merely to note that there was no challenge
to the testimony that IMPLAN is the “most widely used”
model for assessing secondary economic impacts. RT Vol.
185 at 80; RT Vol. 186 at 26. Numerous peer reviewed
journal articles, a number of which were authored by
App. 82
Professor Hamilton and Dr. Robison, also support the
broad acceptance and reliability of imput-output model-
ing. Kan. Exhs. 938, 961.
‘There can be no doubt that evidence resulting from
an input-output model analysis, and from IMPLAN in
particular, meet the admissibility standards of Daubert
and Kumho Tire. Colorado itself acknowledges that
input-output modeling rests upon a foundation which is
generally recognized in the field of economics.” Colo
Objection at 3. The Colorado position, however, is besod
upon a more discreet objection to IMPLAN, that is
whether it is sufficiently reliable to calculate secondary
economic impacts going backwards for a period of 45
years, and forward for 50 years. This issue depends upon
the use of “multipliers” within the modeling system.
Multipliers are computed from the input-output
model and are used to show the effects of changes in an
economy. RT Vol. 185 at 75. They translate the ripple
effects of a primary impact on the economy into resulting
impacts on various sectors of the economy. Id. The input-
output model constructed by Kansas experts in this case
is a snapshot of the Kansas economy in 1995. RT Vol. 186
at 74. The issue raised by Colorado is whether the multi-
plier relationships existing in 1995 are sufficiently stable
to permit the model to be used for other years. Colorado
raises the question, but has offered no evidence that
IMPLAN cannot be used in this fashion. Dr. Robison’s
review of the literature indicates that the input-output
coefficient tables are relatively stable and may be used for
years. RT Vol. 186 at 77-79, 84-93. Dr. Robison cited exam-
ples of input-output models being used to look ahead 20
years and back almost that period of time. Id. at 92-97. If
App. 83
the multipliers were not stable, they would be “going
down” in Dr. Robison’s opinion, and that would mean
that the Kansas approach underestimates secondary eco-
nomic impacts. Id. at 99. This testimony was given as part
of Kansas’ case in chief, and it was at the conclusion of
Dr. Robison’s cross-examination that Colorado made its
Daubert objection.
In response, as part of its rebuttal case, Kansas pro-
duced evidence that the IMPLAN model is currently
being used by the United States Corps of Engineers to
look ahead 100 years. Kan. Exh. 1084; RT Vol. 206 at 35-36,
72-73. The study, dated November 1999, considers a
series of alternatives for salmon recovery. These include
the “breaching” of four dams on the lower Snake River
which would essentially eliminate water storage, reduc-
ing the water supply available to agriculture and for
hydro power. RT Vol. 206 at 33-34. Professor Hamilton, as
chair of the Independent Economic Analysis Board of the
Northwest Power Planning Council, provided technical
review and oversight of these economic impact studies.
This latest use of the IMPLAN model effectively responds
to Colorado’s argument that the Kansas evidence on sec-
ondary economic impacts is inadmissible when used over
the time periods involved in this case.
Colorado also objects to the 20 percent limitation on
the IMPLAN results imposed by the Kansas experts in
order to limit secondary impacts to their net effect on the
Kansas economy. However, that step is outside of the
IMPLAN product. It is a judgment decision made by the
input-output analyst, and is not part of the model nor the
standards affecting its admissibility. RT Vol. 206 at 84-86.
App. 84
The Colorado objection to the admissibility of expert
testimony regarding secondary econemic damages is
hereby overruled. This Order applies to the admissibility
and not to the weight of the testimony.
DATED: May 1, 2000.
/s/ Arthur L. Littleworth
ARTHUR L. LITTLEWORTH
Special Master
PROOF OF SERVICE BY MAIL
STATE OF CALIFORNIA, COUNTY OF RIVERSIDE
I am a citizen of the United States and a resident of
the County aforesaid; I am over the age of eighteen years
and not a party to the within entitled action; my business
address is Best, Best & Krieger, 3750 University Avenue
400 Mission Square, Riverside, California 92502. .
I am readily familiar with Best, Best & Krieger's
practice for collecting and processing correspondence for
mailing with the United States Postal Service. Under that
practice, all correspondence is deposited with the United
States Postal Service the same day it is collected and
processed in the ordinary course of business.
On May 1, 2000, I served the within ORDER OVER-
RULING COLORADO’S OBJECTION TO THE ADMIS-
SIBILITY OF EXPERT TESTIMONY REGARDING
SECONDARY ECONOMIC DAMAGES by placing a
copy of the document in a separate envelope for each
addressee named below and addressed to each such
addressee as follows:
App. 85
John B. Draper, Esq.
Montgomery & Andrews
325 Paseo de Peralta
P.O. Box 2307
Santa Fe, New Mexico 87504-2307
David W. Robbins, Esq.
Hill & Robbins
100 Blake Street Building
1441 Eighteenth Street
Denver, Colorado 80202
Jeffrey P. Minear
Assistant to the Solicitor General
Office of the Solicitor General
United States Department of Justice
Constitution Avenue & Tenth Street, N.W.
Washington D.C. 20530
James J. DuBois, Esq.
U.S. Department of Justice
General Litigation Section
999 18th Street, Suite 945
Denver, Colorado 80202
On May 1, 2000, at the office of Best, Best & Krieger,
3750 University Avenue, 400 Mission Square, Riverside,
California 92502, I sealed and placed each envelope for
collection and deposit by Best, Best & Krieger in the
United States Postal Service, following ordinary business
practices.
| declare under penalty of perjury under the laws of
the State of California, that the foregoing is true and
correct.
Executed on May 1, 2000, at Riverside, California.
/s/ Sandra L. Simmons
Sandra L. Simmons
APPENDIX - Exhibit 9
Stipulation filed November 23, 1998, Table 4B
App. 86
TABLE 4B
Summary of Analysis to Estimate impacts in Kansas caused by Depletions to Usable Stateline Flows
Summary Total Impacts of
we | | educed Deliverie
Historical Depletions to Usable Stateline Flow Allocation of depletions to Canals Canal Supply with Allocated Depletions Historical Additional | Farm Del.
Compact | Compact | Irrigated | Historical | FHG | Unit FHG (affac) Total | Recharge [| Irrigation CIR Shortage | Diversions] FHG | Delivery | UnitFHG | Total FHG Delivery | LandservedbyWells | Well not
Year | Year Area,ac | Divs.,af |Delivery, af} Requirmnt | Delivery af af af % of All Canals af af Delivery, af} Loss, af | Del(af/ac)| Divs., af af af/ac acres % Pumping, af} Repl, af
a a aaa c d e f g h i i k J m n o p q f s t u v
1950 1950 50,839 94,208 63,824 2.09 1.26 186 22 164 100% 31,920 164 106 57 0.00 94,372 63,930 1.26 22,209 43.7% ae 61
1951 1951 50,799 74,588 49,976 1.85 0.98 1,154 177 977 100% 30,245 977 644 333 0.01 75,565 50,621 1.00 22,730 44.7% 282 362
1952 1952 50,759 61,442 42,808 3.33 0.84 939 163 776 100% 83,100 776 518 258 0.01 62,218 43,326 0.85 23,251 45.8% 257 262
1953 1953 50,719 92,086 63,788 2.04 1.26 2,229 348 1,881 100% 33,745 1,881 1,235 646 0.02 93,967 65,023 1.28 23,772 46.9% 614 621
1954 1954 50,679 72,001 47,641 3.30 0.94 4,552 683 3,869 100% 78,853 3,869 2,615 1,254 0.05 75,870} 50,256 0.99 24,294 47.9% 1,375 1,241
1955 1955 50,638; 111,273 72,725 2.88 1.44 9,467 1,441 8,026 100% 51,126 8,026 5,403 2,623 0.11} 119,298 78,128 1.54 24,815 49.0% 2,891 2,512
1956 1956 50,598 76,199 53,891 3.31 1.07 9,445 1,548 7,897 100% 76,534 7,897 5,192 2,705 0.10 84,096 59,083 1.17 25,336 50.1% 2,732 2,460
1957 1957 50,558; 126,077 83,028 2.25 1.64 4,259 1,208 3,051 100% 24,272| _—3,051 1,988 1,063 0.04; 129,128 85,017 1.68 25,857 51.1% 961 1,028
1958 1958 50,518 82,614 59,689 2.06 1.18 6,251 2,350 3,901 100% 32,854 3,901 2,417 1,485 0.05 86,516 62,106 1.23 26,378 52.2% 1,184 1,233
1959 1959 50,478; 131,563 90,324 2.04 1.79 1,226 344 882 100% 13,181 882 486 395 0.01} 132,445 90,810 1.80 26,899 53.3% 230 256
1960 1960 50,438 56666 38,205 2.30 0.76 12,307 1,682 10,625 100% 50,564 10,625 7,019 3,606 0.14 67,290 45,224 0.90 27,421 54.4% 3,967 3,052
1961 1961 50,398 84841 55,578 2.05 1.10 9,213 1,511 7,702 100% | 31,540 7,702 4,973 2,729 0.10| 92543] 60,551 1.20} 27,942 55.4% 2,840 2,132
1962 1962 50,358 78018 55,217 2.59 1.10 5,151 798 4,353 100% 50,191 4,353 2,741 1,612 0.05 82,371 57,959 1.15 28,463 56.5% 1,567 1,174
1963 1963 50,318 56531 35,578 2.65 0.71 9,601 1,428 8,173 100% 63,767 8,173 5,480 2,693 0.11 64,704 41,058 0.82 28,984 57.6% 3,331 2,149
1964 1964 50,277 40588 27,988 2.59 0.56 12,132 2,080 10,052 100% 67,861 10,052 6,571 3,481 0.13 50,640 34,559 0.69 29,505 58.7% 3,950 2,621
1965 1965 50,237 86551 56,300 1.57 1.12 20,964 4,024 16,940 100% 14,620 16,940 10,939 6,002 0.22} 103,491 67,239 1.34 30,026 59.8% 8,270 2,669
1966 1966 50,197; 157175} 109,591 2.57 2.18 3,435 974 2,461 100% 19,313 2,461 1,277 1,184 0.03} 159,636} 110,869 2.21 30,547 60.9% 831 446
1967 1967 48,646 153982; 109,176 1.91 2.24 2,721 681 2,040 100% 9,414 2,040 819 1,221 0.02; 156,022; 109,995 2.26 29,519 60.7% 461 358
1968 1968 48,595 91899 65,006 2.15 1.34 20,494 2,792 17,702 100% 27,626 17,702 10,500 7,203 0.22; 109,602 75,505 1.55 29,991 61.7% 6,591 3,909
1969 1969 48,545 84185 56,089 1.68 1.16 9,228 1,480 7,748 100% 16,999 7,748 4,745 3,003 0.10 91,933 60,834 1.25 30,464 62.8% 3,308 1,437
1970 1970 45,558 97198 63,896 2.24 1.40 8,817 1,284 7,533 100% 25,722 7,533 4,592 2,941 0.10; 104,730 68,489 1.50 28,385 62.3% 2,895 1,697
1971 1971 45,472 70000 46 561 1.65 1.02 8,815 1,374 7,441 100% 21,402 7,441 4634 2,807 0.10 77,441 51,195 1.13 28,769 63.3% 2,871 1,763
1972 1972 45,386 72264 45,127 1.96 0.99 10,747 1,690 9,057 100% 29,966 9,057 6,015 3,042 0.13 81,321 51,141 1.13 29,153 64.2% 3,920 2,095
1973 1973 45,299 65260 42,515 2.29 0.94 6,782 1,212 5,570 100% 38,926 5,570 3,617 1,954 0.08 70,830 46,132 1.02 29,537 65.2% 2,432 1,185
1974 1974 45,213 40345 25,674 2.65 0.57 9,300 1,426 7,874 100% 58,620 7,874 5,218 2,657 0.12 48,219 30,892 0.68 29,921 66.2% 3,490 1,728
1975 1975 45,127 22941 16,670 2.16 0.37 14,582 2,681 11,901 100% | 53,082 11,901 7,801 4,100 0.17} 34842} 24,471 0.54; 30,305 67.2% §,318 2,482
1976 1976 45,040 10608 6,333 2.32 0.14 23,134 3,738 19,393 100% 63,856 19,393 13,087 6,306 0.29 30,001 19,421 0.43 30,689 68.1% 8,856 4,231
1977 1977 44,954 10905 7,961 1.70 0.18 18,443 3,081 15,362 100% 44,633 15,362 10,358 5,004 0.23 26,267 18,319 0.41 31,073 69.1% 7,164 3,195
1978 1978 44 868 23790 15,668 2.48 0.35 24,079 3,950 20,129 100% 62,237 20,129 13,550 6,580 0.30 43,920 29,218 0.65 31,457 70.1% 9,474 4,076
1979 1979 44,782 8262 6,499 2.07 0.15 23,442 3,827 19,615 100% | 55,909 19,615 13,105 6,511 0.29} 27,878 19,603 0.44 31,841 71.1% 9,288 3,817
1980 1980 44,695 69927 46,912 2.35 1.05 5,945 1,687 4,258 100% 39,880 4,258 2,834 1,425 0.06 74,186 49,746 1.11 32,225 72.1% 2.031 803
1981 1981 44 609 24099 18,845 2.01 0.42 8,427 1,624 6 8i - 100% 47,960 6,803 4,480 2,323 0.10 30,901 23,325 0.52 32,609 73.1% 3,261 1,219
1982 1982 44 523 43089 29,177 1.87 0.66 14,281 2,479 11,802 100% 36,728 11,802 7,916 3,887 0.18 54,891 37,093 0.83 32,993 74.1% 5,841 2,074
1983 1983 44.436| 103810 68,607 2.16 1.54 3,097 879 2,218 100% 17,780 2,218 1,399 819 0.03} 106,029 70,006; 1.58} 33,377 75.1% 1,051 348
1984 1984 44 350 117496 77,106 1.89 1.74 3,127 883 2,244 100% 6,736 2,244 1,349 894 0.03} 119,740 78,455 1.77 33,761 76.1% 1,044 305
1985 1985 44,264| 103734 69,597 2.31 1.57 0 ) 0 100% | 21,363 0 0 0 0.00} 103,734) 69,597 1.57| 34145 77.1% 0 0
1986 1986 44.178| 136786 89,263 2.14 2.02 8,124 1,337 6,787 100% 6,786 6,787 4,396 2,391 0.10} 143,572 93,659 2.12} 34,529 78.2% 3,416 980
1987 1987 44,091 107563 75,002 1.98 1.70 1,916 705 1,211 100% 10,293 1,211 661 550 0.01; 108,774 75,662 1.72 34,913 79.2% 561 100
1988 1988 44005/ 129254/ 85,240 2.54 1.94 5,664 1,037 4627 100% 17,110 4627 2,968 1,659 0.07} 133,881 88,209 2.00} 35,297 80.2% 2,360 609
1989 1989 44,005 68459 46,141 1.53 1.05 7,174 1,304 5,870 100% 14,620 5,870 3,885 1,986 0.09} 74,329 50,026 1.14} 35,297 80.2% 3,064 820
1990 | 1990 44,005| _43548| 29.919 1.89 0.68 13,673 2,067 11,006 100% | _35,601| 11,006 7,395] 3,611 0.17| 54554] 37,315 0.85| 35,297| 80.2%! _—5,781 1,614
1991 1991 44,005 40106 26,883 2.02 0.61 16,685 2,662 14,023 100% | 40,843 14,023 9,561 4,462 0.22} 54130} 36,444 0.83} 35,297 80.2% 7,429 2,132
1992 1992 44,005 47913 31,747 1.82 0.72 17,328 2,755 14,573 100% | 31,424 14,573 9,885 4,688 0.22} 62486| 41,632 0.95} 35,297 80.2% 7,653 2,233
1993 1993 44,005 53952 36,175 1.85 0.82 8,448 1,540 6,908 100% 29,268 6,908 4,666 2,242 0.11 60,860 40,841 0.93 35,297 80.2% 3,667 999
1994 1994 44 005 66798 45,723 1.81 1.04 13,690 2,265 11,425 100%} 22,201 11,425 7,523 3,902 0.17 78,223 53,245 1.21 35,297 80.2% 5,972 1,551
AVERAGE AVERAGES:
1950-85 | 1950-85 47,866 74,895 50,655 2.25 1.06 9,110 1,599 7,512 100% 39,792 7,512 4878 2,633 0.10 82,407 55,533 1.16 28,851 60.3% 3,184 1,694
1986-94 | 1986-94 44 034 77,153 51,788 1.95 1.18 10,234 1,741 8 492 100% 23,127 8 492 5,660 2,832 0.13 85,646 57,448 1.30 35,169 79.9% 4 434 1,226
1950-94 | 1950-94 47,099; 75,347 50,881 2.19 1.08 | 9,335 1,627 7,708 100%} 36,459 7,708 5,035 2,673 0.11 83,054; 55,916 1.19} 30,115 63.9% 3,434 1,601
TOTALS: TOTALS: il —
1950-85 | 1950-85 | 1,723,171 | 2,696,216 | 1,823,569 fess 1.06} 327,969 67,549| 270,420 Fess 1,432,525| 270,420) 175,623) 94,797 0.10 | 2,966,636 | 1,999,193 1.16| 1,038,648 Fy 114,624) 60,999
1986-94 | 1986-94 | 396,304| 694.380| 466,093 Fas 1.18 92,103 15,672 76,431 Fee §=208.146|) 76,431) 50,939| 25,491 0.13| 770,810} 517,032 1.30| 316521 fs 39,903} 11,037
1950-94 | 1950-94 | 2,119,475 | 3,390,596 | 2,289,662 ee 1.08} 420,071 73,221| 346,850 ess 1640671} 346,850) 226563} 120,288 0.11} 3,737,446 | 2,516,225 1.19| 1,355,170 Fess 154526) 72,036
11/11/98
App. 87
TABLE 4B - Part 2 Nonbeneficial CU (SEV): 27%
Summary of Analysis to Estimate Impacts in Kansas caused by Depletions to Usable Stateline Flows Farm Irrigation Efficiency 65%
Summary Total Tail Water (% FHG) 10%
Net Reduction in Rech
A Reduction in Recharge - Details 5 7 : , aT Canal Service Area =e Seay
Compa oss arm sses Paeeind consurewe se on | Change eservoir Pumping
ay Rehg, af | SEV, af "Total, af | Rehg, af sev, i Total, af |Crop CU, af] SEV, af | Total, af Rchg, af | SEV,af | Loss,af | Seep, af Debvery, of CU, af ry Rane Total af
a w x y z aa ab ac ad ae af ag ah ai aj ak al
1950 32 25 57 34 3 37 29 1 31 97 | 27 31 1 34 31 97 22 119
1951 181 152 333 208 17 225 184 8 191 580 162 172 9 208 191 580 177 757
1952 147 111 258 } 167 14 181 167 7 174} . 488 118 141 6 167 174 488 163 651
1953 372 274 646 399 33 432 399 17 416 1,186 291 358 14 399 416 1,186 348 1,534
1954 726 §28| 1,254 845 71 916 894 37 931| 2,504 562 699 27 845 931| 2,501 683| 3,184
1955 1,525 1,098 2,623 1,745 146 1,891 1,879 78 1,957 §,227 1166 1,469 55 1,745 1,957 §, 227 1,441 6,668
1956 1,521 1,183 2,705 1,677 140 1,817 1,776 74 1,850 §,048 1250 1,457 64 1,677 1,850 5 048 1,548 6,596
1957 589 474 1,063 642 54 696 624 26 650 1,881 502 562 27 642 650 1,881 1,208 3,089
1958 763 722 1,485 781 65 846 769 32 801 2,345 756 717 46 781 801 2,345 2,350 4695
1959 192 204 395 157 13 170 149 6 156 504 211 178 14 157 156 504 344 848
1960 2,018 | 1,588 3,606 2,267 190 2,457 2,579 107 2,686 6,971 1670 1,930 87 2,267 2,686 6,971 1,682 8 653
1961 1,491 1,238 2,729 1,606 134 1,740 1,846 77 1,923 5,020 1295 1,420 71 1,606 1,923 §,020 1,511 6,531
1962 862 750 1,612 885 74 960 1,019 42 1,061 2,808 781 817 45 885 1,061 2,808 798 3,606
1963 1,548 1,145 2,693 1,770 148 1,918 2,165 90 2,255 §,573 1203 1,488 59 1,770 2,255 §,573 1,428 7,001
1964 1,937 1,544 3,481 2,122 177 2,300 2,568 107 2,674 6,733 1615 1,851 86 2,122 2,674 6,733 2,080 8 813
1965 2,970} _ 3,032 6,002 3,533 295| 3,829 §,375 223| 5,599} 12,101 3104| 2,769 201 3,533 §,599| 12,101 4024| 16,125
1966 497 687 1,184 413 34 447 540 22 563 1,472 699 445 52 413 563 1,472 974 2,446
1967 481 740 1,221 265 22 287 300 12 312 1,058 749 423 58 265 312 1,058 681 1,739
1968 3,664 3,538 7,203 3,391 283 3,675 4,284 178 4 462 11,518 3644 3,438 227 3,391 4 462 11,518 2,792 14,310
1969 1,496 1,507 3,003 1,533 128 1,661 2,150 89 2,240 5,268 1545 1,397 99 1,533 2,240 § 268 1,480 6,748
1970 1,539 1,401 2,941 1,483 124 1,607 1,882 78 1,960 4983 1447 1,453 86 1,483 1,960 4 983 1,284 6,267
1971 1,528 1,279 2,807 1,497 125 1,622 1,866 78 1,944 4,969 1326 1,454 74 1,497 1,944 4,969 1,374 6.343
1972 1,762 1,280 3,042 1,943 162 2,105 2,548 106 2,654 6,359 1336 1,697 65 1,943 2,654 6,359 1,690 8 049
1973 1,106 848 1,954 1,168 98 1,266 1,581 66 1,646 3,920 880 1,061 46 1,168 1,646 3,920 1,212 5,132
1974 1,544 1,112 2,657 1,685 141 1,826 2,268 94 2,362 § 592 1159 1,488 56 1,685 2,362 §,592 1,426 7,018
| 1975 2,347 | 1,753 4,100 2,520 211 2,730 3,457 144 3,601 8,467 1821 2,205 92 2,520 3,601 8 467 2,681 14,148
1976 3,697 2,608 6,306 4,227 353 4 581 5,757 239 5,996 13,920 2722 3,569 129 4.227 5, 996 13,920 3,738 17,658
1977 3,521 1,482 5,004 3,346 280 3,625 4,656 193 4850 11,717 1568 3,000 522 3,346 4,850 11,717 3,081 14,798
1978 4636 1,943 6,580 4377 366 4,742 6,158 256 6,414 15,427 2053 3,973 664 4377 6.414 15,427 3,950 19,377
1979 4,582 1,928 6,511 4,233 354 4 587 6,037 251 6,288 15,103 2031 3,904 678 4.233 6,288 15,103 3,827 18,930
1980 1,004 420 1,425 915 77 992 1,320 55 1,375 3,295 442 862 142 915 1,375 3,295 1,687 4982
1981 1,631 691 2,323 1,447 121 1,568 2,119 88 2,208 5 286 724 1,375 256 1,447 2,208 5,286 1,624 6.910
1982 2,741 1,145 3,887 2,557 214 2,771 3,797 158 3,955 9,253 1201 2,360 381 2,557 3,955 9,253 2,479 11,732
1983 576 243 819 452 38 490 683 28 711 1,740 252 489 87 452 711 1,740 879 2,619
1984 623 271 894 436 36 472 679 28 707 1,766 280 503 119 436 707 1,766 883 _ 2,649
1985 0 0 0 0 0 0 0 0 0 0 0 0 0 8) 0 0 0 0
1986 1,674 717 2,391 1,420 119 1,539 2,221 92 2,313 5,407 743 1,391 283 1,420 2,313 5 407 1,337 «6,744
1987 376 175 550 213 18 231 364 15 380 969 177 272 104 213 380 969 705 1,674
1988 1,162 496 1,659 959 80 1,039 1,534 64 1,597 3,718 513 969 193 959 1,597 3,718 1,037 4755
1989 1,401 585 1,986 1,255 105 1,360 1,992 83 2,075 4,730 607 1,207 194 1,255 2,075 4730 1,304 6,034
1990 2,558 1,053 3,611 2,389 200 2,588 3,758 156 3,914 8, 860 1097 2,246 311 2,389 3,914 8 860 2,067 | 10,927
1991 3,166 1,296 4462 3,088 258 3,346 4829 201 5,029 11,284 1353 2,804 362 3,088 5,029 11,284 2,662 13,946
1992 3,319 1,369 4 688 3,193 267 3,460 4,974 207 5,181 11,693 1429 2,910 409 3,193 5,181 11,693 2,755 14,448
1993 1,590 652 2,242 1,507 126 1,633 2,384 99 2,483 5,580 679 1,406 185 1,507 2,483 5 580 1,540 1120}
1994 2,756 1,147 3,902 2,430 203 2,633 3,882 161 4,043 9,228 1189 2,385 371 2,430 4043 9.228 2,265 11,493 |
AVERAGE
1950-85 1,551 1,082 2,633 1,576 132 1,707 2,070 86 2,156 § 283 1,128 1,422 129 1,576 2, 156 §, 283 1,599 6,881 |
1986-94 2,000 832 2,832 1,828 153 1,981 2,882 120 3,002 6,830 865 1,732 268 1,828 3,002 6.830 1,741 8.571
1950-94 1,641 1,032 2,673 1,626 136 1,762 2,232 93 2,325 § 592 1,075 1,484 157 1,626 2,325 § 592 1,627 7.219
TOTALS: jie
1950-85 55,849 38,948 94,797 56,726 4,742 61,468 74,506 3,095 77,600; 190,176 40,594 51,203 4 646 56,726 77,600 190,176 57,549| 247,725
1986-94 18,002 7,489 25,491 16,453 1,375 17,829 25,937 1,077 27,014 61,470 7,787 15,590 2,412 16 453 27,014 61,470 15,672 77,142 |
1950-94 73,851 46 437 120,288 73,180 6,117 79,297 100,442 4.172} 104614} 251,645 48 382 66,793 7,058 73,180 104.614 251,645 73,221 324,866
11/11/98
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