Opposition Brief — Kansas v. Colorado

Supreme Court, u

Se ee ee ae

a DEC 22 1997

CLERK

No. 105, Original

In the Supreme Court of the Gnited States

OCTOBER TERM, 1997

STATE OF KANSAS, PLAINTIFF

STATE OF COLORADO

ON EXCEPTIONS TO THE SECOND REPORT

OF THE SPECIAL MASTER

BRIEF FOR THE UNITED STATES IN OPPOSITION

TO THE FXCEPTIONS OF COLORADO

SETH P. WAXMAN

Solicitor General

LoIs J. SCHIFFER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor

General

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

The United States will address the following

issues:

1. Whether the Special Master erred in recom-

mending that, if the remedy in this case includes

money damages, the Eleventh Amendment does not

preclude damages to the State of Kansas from being

based, in part, on losses incurred by its water users,

subject to the overall consideration of fairness

(Colorado Exception No. 1).

2. Whether the Special Master erred in recom-

mending that the unliquidated nature of Kansas’s

claim for money damages or repayment in water does

not bar the award of prejudgment interest and that

the possible award of prejudgment interest will

depend upon the evidence presented in future trial

proceedings (Colorado Exception No. 2).

(I)

TABLE OF CONTENTS

Page

i ES CRT CTT 1

1. The Arkansas River Basin ..............cccccccceeoeeeeess. 2

2. The Arkansas River Compact .00.......cccccccccoceeess. 3

3. The current proceedings ...............cceccssscooseeseeee 7

Introduction and summary of argument .......ceccccc.00..... 9

RI eh relia siheniha Ltedinesshctiinaphictssesbesickshusindsker oaciaces, 12

Colorado’s exceptions should be overruled with-

out prejudice because they are not appropriate

for resolution at this stage of the Master’s

REFERS ESAS SS ea Oe el See a 12

I. Colorado’s Eleventh Amendment challenge is

not ripe for conclusive resolution by this

I eR Na nbdseiictnsstcsadnstecoeenscecrteynsxshessceisnesanses 13

II. Colorado’s challenge to the possible award of

prejudgment interest is not ripe for conclusive

resolution by this Court ..................eccsscooccsssesess. 21

SIE IE SRR a 25

TABLE OF AUTHORITIES

Cases:

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

IN calcd biitanicincaccidenamsdiadolaswanenseieesaecasass 19

Board of Comm’rs v. United States, 308 U.S. 343

RN TAA AS AlN entslpneh Schinatetsevasekaisvcsvevsacsushvessvesovesesoseass 24

City of Milwaukee v. Cement Div., Nat’l Gypsum

i: DEW WB, BOD (IOBG) nnnnscccvencccescccsveccvecezecsseessee 23, 24

Clinton v. Jones, 117 S. Ct. 1636 (1997) ....cecccccccceeeee 14

Colorado v. Kansas, 320 U.S. 388 (1943) ceecceccccc.--e. 4

Funkhouser v. J.B. Preston Co., 290 U.S. 163

SE HAIIET Atiietl di sidikeeseihcdasticissensvseceneseeniomsavenseseooare 23, 24

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

UE Nil aaeshdcuialbdbsebbshisiibenideseandannsastsooseeceesciveeses 23

Georgia v. Tennessee Copper Co., 206 U.S. 230

SN nUN a Natissts sedis saisaansctsininnswnbevcensnvcsdsabosieseoooneces 19

(IIT)

IV

Cases—Continued: Page

Hawaii v. Standard Oil Co., 405 U.S. 251 (1972) .... 17

Illinois v. Kentucky, 500 U.S. 380 (1991) .........eeee 16

Kansas v. Colorado, 206 U.S. 46 (1907) ...........:.ee00 4

Kansas v. Colorado:

475 U.S. 1079 (1986) ....ccccccocsscccrvsecccccscccscscessscscesnces 1

A4TB U.S. 1018 (1086) .nccccoscccccsveccsscccccccessssenersocssneseses 1

484 U.S. 910 (1987) .....ccccccccrcesscrccccssevcccccesoreesessooesons 1

513 U.S. 808 (1994) .....cccccccccccscccrcsccccccccccsscscesescosesses 2

SIA US. STB (IDB) .ncececccsccccressoccscscsscsseceseessees 2, 3, 4, 7, 9

11B &. Co. BD GGT) cccccssesecrvcccersesecsscssssssevccnsscccuneseses 2,9

Library of Congress v. Shaw, 478 U.S. 310 (1986) .. 21

Maryland v. Louisiana, 451 U.S. 725 (1981) ........... 17

Monessen Southwestern Ry. v. Morgan, 486 U.S.

BOO CIDIDD. vccscccnsecnactsesvinscvcsenconssaesendsinceeastwasnscnxennsies 22

New Hampshire v. Louisiana, 108 U.S. 76 (1883). 17, 18

North Dakota v. Minnesota, 263 U.S. 365 (1929) .... 17,

18, 19

Pierce v. United States, 255 U.S. 398 (1921) ........... 24

Rescue Army v. Municipal Court of Los Angeles,

BB1 U.S. BAD CADET) ncccccccccccescoscosccressrccvesccesecesecceescess 14

Texas v. New Mexico, 482 U.S. 124 (1987) ........ 14, 20, 24

United States v. Louisiana, 485 U.S. 88 (1988) ....... 16

United States v. New York Rayon Co., 329 U.S.

GBA (IDET) .ncccccrccoccccssscsccscosccsccssosesccsssosesesssesenesooqccess 21

United States v. Texas, 507 U.S. 529 (1998) ........... 24

Wyoming v. Oklahoma, 502 U.S. 437 (1992) .......+. 16

Constitution and statutes:

U.S. Const. Amend. XI .....ccsccsveccosceccssersee 9, 10, 11, 18, 15,

16, 17, 18, 20, 22

Arkansas River Compact, Act of May 31, 1949, ch.

155, 63 Stat. 145 ........essceseeeececeeeessesscesseeeneneseeeeeeons 1,4

Art. I, 63 Stat. 145 0... cee eeceeceeseeeeeeeseseeneeseeeeereenees 5)

Art. ITI-B, 63 Stat. 146 ..........cccecssseeeeeeeeeeeeeeeeeeeeeeees +)

Art. IV-D, 63 Stat. 147 .........ccseceseacseeseeereceeeeenees 5, 6, 7, 9

Statutes—Continued:

Art. V, 63 Stat. 147-149 ......

Art. VIII, 63 Stat. 149-151 ..

Art. VIII-B, 63 Stat. 149 .

Art. VIII-C, 63 Stat. 150 .

Art. VIII-H, 63 Stat. 151

COO RESESEH EE EEE HEHE SEE HEE ETESEESS

SOHC EHERE TEESE EE EEHEHEEHET ES EEES

POOH EE OEHESEEE EEE EEE EEEE EEE

CORTESE EHH HEHEHE HEHEHE STEED HEHE OES

SOPOT HEHEHE EEE EEE EH OEE OOES

In the Supreme Court of the Gnited States

OCTOBER TERM, 1997

No. 105, ORIGINAL

STATE OF KANSAS, PLAINTIFF

Vv.

STATE OF COLORADO

ON EXCEPTIONS TO THE SECOND REPORT

OF THE SPECIAL MASTER

BRIEF FOR THE UNITED STATES IN OPPOSITION

TO THE EXCEPTIONS OF COLORADO

STATEMENT

The State of Kansas brought this original action

against the State of Colorado to resolve disputes

under the Arkansas River Compact, Act of May 31,

1949, ch. 155, 63 Stat. 145 (Compact). This Court

granted Kansas leave to file its complaint, Kansas v.

Colorado, 475 U.S. 1079 (1986), and the Court

appointed the Honorable Wade H. McCree, Jr., to .

serve as the Special Master. 478 U.S. 1018 (1986).

Upon Judge McCree’s death, the Court appointed

Arthur L. Littleworth as the Special Master, 484

U.S: 910 (1987). Special Master Littleworth granted

the United States’ unopposed motion for leave to

intervene in the action, conducted a trial limited to

(1)

2

questions of liability, and submitted a report re-

commending that the Court find Colorado to have

violated the Compact in certain respects. 513 U.S.

803 (1994). This Court overruled the exceptions of

both Kansas and Colorado to the Master’s first

report. 514 U.S. 673 (1995).

The Master has submitted a second report that ad-

dresses preliminary issues respecting a remedy, and

this Court has invited the parties to file exceptions.

118 S. Ct. 39 (1997). The United States actively par-

ticipated in the trial of the liability issues, but has not

participated in the trial of remedy issues. Like

Kansas, the United States has not filed exceptions

to the Master’s second report. The United States

nevertheless remains a party to~this dispute and

continues to monitor the progress of this case. The

United States files this brief to provide this Court

with the federal government’s perspective on Colo-

rado’s exceptions to the Master’s second report.

1. The Arkansas River Basin

The Arkansas River originates on the east slope of

the Rocky Mountains in central Colorado and flows

south and then east across Colorado and into Kansas.

It receives significant in-flows from the Purgatoire

River, its major tributary in Colorado, which origi-

nates in the Sangre de Cristo mountains in southern

Colorado near the New Mexico border. The Purga-

toire River flows in a northeasterly direction to join

the Arkansas River about 60 miles west of the Kansas

border, at Las Animas, Colorado. See Kansas v.

Colorado, 514 U.S. 678, 675-676 (1995).

The United States has constructed three water

storage projects on this river system that are rele-

vant to this case. The John Martin Reservoir, located

immediately east of the juncture of the Purgatoire

and Arkansas Rivers in Colorado, is operated by

the Army Corps of Engineers to control floods and

to provide storage water in accordance with the

Arkansas River Compact. It has a storage capacity of

approximately 700,000 acre-feet. 514 U.S. at 677. The

Pueblo Reservoir, located on the Arkansas River

about 150 miles upstream, of the Kansas border near

Pueblo, Colorado, is managed by the Department of

the Interior’s Bureau of Reclamation as part of the

F'ryingpan-Arkansas Project. It has a storage capac-

ity of approximately 357,000 acre-feet. Jbid. The

Trinidad Reservoir, located on the Purgatoire River

near Trinidad, Colorado, is jointly managed by the

Army Corps of Engineers and the Bureau of Reclama-

tion to control floods and to provide storage water for

use by the Bureau of Reclamation’s Trinidad Project.

It has a storage capacity of approximately 114,000

acre-feet. Ibid.

Twenty-three canal systems in Colorado divert

water from the Arkansas River for irrigation. Four-

teen of those systems are located upstream from John

Martin Reservoir, and four of those systems have

associated privately-owned, off-channel water storage

facilities. Six canal systems in Kansas operate

between the Colorado border and Garden City. See

514 U.S. at 677.

2. The Arkansas River Compact

The Arkansas River Compact apportions the Ar-

kansas River between the States of Kansas and

Colorado. The Compact was an outgrowth of two

original actions that the States had filed in this Court

disputing their respective entitlements to use of the

Arkansas River. See 514 U.S. at 678. In each of those

‘BiSie ica nae tana ence edit i Ja aaa nase a aaa iia naman Ia a

4

cases, the Court denied Kansas’s request for an equi-

table apportionment. See Colorado v. Kansas, 320

U.S. 383, 391-392 (1943); Kansas v. Colorado, 206 U.S.

46, 114-117 (1907).

In the first suit, Kansas sought to enjoin water

diversions in Colorado, but the Court denied relief on

the ground that Colorado’s depletions of the Arkansas

River were insufficient at that time to warrant

injunctive relief. Kansas v. Colorado, 206 U.S. at 114-

117. In the second suit, Colorado sought to enjoin

lower court litigation brought by Kansas water users

against Colorado water users, while Kansas sought

an equitable apportionment of the Arkarsas River.

The Court concluded that Colorado was entitled

to the injunction it sought, but the Court concluded

once again that Kansas had failed to show sufficient

injury to warrant an equitable apportionment of the

Arkansas River. Colorado v. Kansas, 320 U.S. at 391-

392; see Kansas v. Colorado, 514 U.S. at 678.

In denying Kansas’s second request for judicial

relief, the Court suggested that a dispute such as this

one calls for “expert administration rather than

judicial imposition of a hard and fast rule,” and that

the controversy “may appropriately be composed by

negotiation and agreement, pursuant to the compact

clause of the federal Constitution.” Colorado v.

Kansas, 320 U.S. at 392. Shortly thereafter, the

States appointed commissioners to negotiate an

interstate agreement. In 1949, the States approved,

and Congress ratified, the Arkansas River Compact,

63 Stat. 145. See generally Colo. Br. App. 1-17 (re-

printing text of Compact). The Compact was in-

tended to “{slettle existing disputes and remove

causes of future controversy” between the States and

5

their citizens over the use of the Arkansas River. To

that end, the Compact was designed to

[e]quitably divide and apportion between the

States of Colorado and Kansas the waters of the

Arkansas River and their utilization as well as the

benefits arising from the construction, operation

and maintenance by the United States of John

Martin Reservoir Project for water conservation

purposes. :

Compact Art. I, 63 Stat. 145; Colo. Br. App. 1-2. The

Compact accomplishes those goals through two basic

mechanisms.

First, the Compact protects the States’ respective

rights to continued use of the Arkansas River

through a limitation on new depletions. Article IV-D

of the Compact allows new development in the form of

dams, reservoirs, and other water-utilization works

in Colorado and Kansas, provided that the “waters of

the Arkansas River” are not thereby “materially

depleted in usable quantity or availability for use to

the water users in Colorado and Kansas under this

Compact.” 63 Stat. 147; Colo. Br. App. 5. The Com-

pact defines the term “waters of the Arkansas River,”

Art. III-B, 63 Stat. 146; Colo. Br. App. 2-3, but it does

not expressly define what constitutes a “material”

depletion or a “usable” quantity.’

1 The full text of Article IV-D states as follows:

D. This Compact is not intended to impede or prevent

future beneficial development of the Arkansas River basin

in Colorado and Kansas by Federal or State agencies, by

private enterprise, or by combinations thereof, which may

involve construction of dams, reservoir, and other works

for the purposes of water utilization and control, as well as

the improved or prolonged functioning of existing works:

Second, the Compact regulates the storage of water

at John Martin Reservoir and specifies the criteria by

which each State is entitled to call for water releases.

Article V of the Compact, which provides the “basis of

apportionment of the waters of the Arkansas River,”

prescribes the timing of storage at the reservoir and

the release criteria. 63 Stat. 147-149; Colo. Br. App. 5-

9. Basically, between November 1 and March 31, in-

flows to the John Martin Reservoir are stored, sub-

ject to Colorado’s right to demand a limited amount of

water. Between April 1 and October 31, the storage of

water is largely curtailed, and either State may call

for releases at any time in accordance with the flow

rates set out in the Compact. Jbid.

The Compact creates an interstate agency, the

Arkansas River Compact Administration, to adminis-

ter the Compact. Art. VIII, 63 Stat. 149-151; Colo. Br.

App. 11-15. The Compact Administration consists of a

non-voting presiding officer designated by the Presi-

dent of the United States and three voting represen-

tatives from each State. It is empowered to adopt by-

laws, rules, and regulations, prescribe procedures for

the administration of the Compact, and perform func-

tions to implement the Compact. See Arts. VIII-B,

VIII-C, 63 Stat. 149, 150; Colo. Br. App. 11,12. Article

VIII-H of the Compact directs that the Administra-

tion shall “promptly investigate[]” violations of the

Compact and report its findings and recommendations

Provided, that the waters of the Arkansas River, as de-

fined in Article III, shall not be materially depleted in

usable quantity or availability for use to the water users in

Colorado and Kansas under this Compact by such future

development or construction.

63 Stat. 147; Colo. Br. App. 5.

to the appropriate state official. 63 Stat. 151; Colo.

Br. App. 15. That Article further states that it

is “the intent of this Compact that enforcement of its

terms shall be accomplished in general through the

State agencies and officials charged with the ad-

ministration of water rights.” Ibid.

3. The Current Proceedings

Kansas brought this action in 1985 to enforce the

provisions of the Arkansas River Compact. Special

Master Littleworth filed his initial report with the

Court in July 1994 addressing issues of liability. He

recommended that the Court find that post-Compact

well pumping in Colorado had violated Article IV-D of

the Compact and that Colorado be held liable for that

violation. The Master also recommended that the

Court find no violation of the Compact with respect to

Kansas’s claims arising from the operation of the

Trinidad Reservoir and the Winter Water Storage

Program. The Court adopted all of the Master’s

recommendations and remanded for determination of

the unresolved issues—primarily relating to what

remedy, if any, Kansas was entitled to as a result of

Colorado’s breach—in a manner not inconsistent with

the Court’s opinion. Kansas v. Colorado, 514 U.S. at

694.

On remand, the Master conducted further proceed- ©

ings and prepared a report providing his preliminary

recommendations on the issues of: (a) quantifying the

depletions in Stateline flow for the period 1950-1985;

(b) quantifying depletions for the period subsequent

to 1985; (c) bringing Colorado into current compliance

with the provisions of the Compact; and (d) a remedy

for past depletions. See Rep. 2, 112. After hearing

evidence and receiving briefs addressing those issues,

8

the Master issued his second report, which recom-

mends, in essence, that:

(1) the Court approve the Master’s order

denying Kansas’ motion for an injunction;

(2) the Court approve the States’ stipulation

quantifying depletions to usable Stateline flow

caused by post-Compact pumping in Colorado for

the period 1950-1985 in the amount of 328,505 acre-

feet;

(3) depletions of usable Stateline flow for the

period 1986-1994 be determined to be 91,565 acre-

feet;

(4) Colorado’s efforts to bring the State into

current compliance with its Compact obligations

have been sufficient to preclude any immediate

need for interim injunctive relief or revision

of Colorado’s Measurement or Use Rules, that

Colorado’s activities in those regards continue to

be closely monitored, and that depletions for 1995

and compliance for 1996 and subsequent years be

determined;

(5) the Court approve an Offset Account in

John Martin Reservoir for the storage and de-

livery of replacement water to Kansas to offset

depletions of usable Stateline flow;

(6) evidence be received on a suitable remedy

for past Compact violations, whether such remedy

be in water or in money;

(7) if a suitable remedy in this case should

include money damages, those damages should be

based upon Kansas’s loss rather than upon any

gain to Colorado, subject to the overriding con-

9

sideration that the remedy provide a fair and

equitable solution;

(8) if the remedy includes money damages,

the Eleventh Amendment does not preclude dam-

ages to Kansas from being based, in part, on losses

incurred by its water users, again subject to the

overall consideration of fairness; and

(9) the unliquidated nature of Kansas’s claim

for damages does not, in and of itself, bar the award

of prejudgment interest, whether the remedy

includes money damages or water repayment, and

the possible award of prejudgment interest will

depend upon the evidence presented in future trial

proceedings.

See Rep. 112-114. The Court has invited the parties

to file exceptions to the recommendations contained

in the Master’s report. See 118 S. Ct. 39 (1997).

INTRODUCTION AND SUMMARY OF ARGUMENT

The State of Kansas brought this action to enforce

its rights under the Arkansas River Compact, which

apportions the flow of the Arkansas River between

Kansas and Colorado. This Court resolved the issues

of liability in an earlier decision, Kansas v. Colorado,

514 U.S. 673 (1995), which accepted the Master’s re-

commendation that Colorado be held liable for viola-

tions of Article IV-D of the Compact resulting from

post-Compact well pumping in Colorado. On remand,

the Master heard evidence and prepared a thorough

report dealing with a series of issues related to what

remedy Kansas may obtain as a result of Colorado’s

breach.

Among the Master’s recommendations, Colorado

takes exception to only two. Colorado challenges the

a S ——

10

Master’s determinations that (1) if Kansas is entitled

to a remedy and that remedy is money damages, the

Eleventh Amendment does not bar the Master from

recommending a damage award that is based, in part,

on evidence of the actual losses suffered by individual

Kansas water users as a result of Colorado’s Compact

violations; and (2) if Kansas is entitled to a remedy,

the Master may recommend an award of prejudgment

interest if the evidence produced in future proceed-

ings suggests that such an award is warranted. Colo.

Excepts. 1-2; see Colo. Br. 6-7. Colorado’s exceptions

should be overruled without prejudice to Colorado’s

right to renew those exceptions, if necessary, once

the Master has recommended a final remedy in this

case. |

I. The resolution of Colorado’s Eleventh Amend-

ment challenge should await completion of the reme-

dial proceedings. The Master’s recommendation con-

cerning the use of evidence of losses sustained by

individual Kansas water users has uncertain signifi-

cance at this stage of the remedial proceedings. The

Master has merely recommended that, if Kansas is

entitled to a remedy and if the appropriate remedy is

money damages, he may consider evidence of losses

sustained by individual Kansas water users in

determining the amount of damages to which Kansas

is entitled. If the Master ultimately concludes that

Kansas is entitled to no remedy or that the appropri-

ate remedy should take the form of replacement water

rather than money damages, and the Court adopts

those recommendations, then there would be no rea-

son to decide Colorado’s constitutional objections. On

the other hand, if the Master determines that a mone-

tary award is appropriate, and the Master imposes a

remedy that raises Eleventh Amendment concerns,

11

the issue can be resolved at that time in the context of

the specific remedy that the Master proposes.

The Court should be particularly reluctant to

resolve Colorado’s exception at this time because that

exception rests on what appears to be an inaccurate

interpretation of the Master’s recommendation. Colo-

rado characterizes the Master’s recommendation as

allowing Kansas to recover from Colorado the actual

losses suffered by individual Kansas water users.

The Master’s report, however, suggests instead that

the Master has simply concluded that evidence con-

cerning individual loss may be relevant in deter-

mining the injury that Kansas has suffered to its

quasi-sovereign interest in protecting the economic

well-being of its citizens. If the Master ultimately

uses individual losses in some other way to quantify

Kansas’s damages, the Court will have ample opportu-

nity to address any Eleventh Amendment concerns in

the course of its review of the Master’s final remedy.

The Court should therefore overrule Colorado’s ex-

ception without prejudice to Colorado’s renewing that

exception, if necessary, at the conclusion of the

remedial proceedings.

II. The resolution of Colorado’s challenge to the

possible award of prejudgment interest should also

await completion of the remedial proceedings. The

Master’s recommendation on that matter similarly

has uncertain significance at this stage of the pro-

ceedings, and Colorado’s exception presents the same

possibility of premature and piecemeal consideration.

The Master provided sound reasons for his determina-

tion that he has discretion to recommend an award of

prejudgment interest in appropriate cases. The rele-

vance of that ruling, however, depends, as a threshold

matter, on whether the Master ultimately determines

ee Te ee

12

that Kansas is entitled to a remedy. In addition, the

Master emphasized that “the possible award of pre-

judgment interest will depend upon the evidence

presented in future trial proceedings.” Rep. 114. In

light of the current uncertainties, the Court should

overrule Colorado’s exception without prejudice to

Colorado’s renewal of that exception, if necessary,

after the Master has recommended a final remedy.

ARGUMENT

COLORADO’S EXCEPTIONS SHOULD BE OVER-

RULED WITHOUT PREJUDICE BECAUSE THEY

ARE NOT APPROPRIATE FOR RESOLUTION

AT THIS STAGE OF THE MASTER’S PRO-

CEEDINGS

This Court has considerable latitude in the conduct

of original proceedings. In most instances, the Court

appoints a Special Master, who controls the scope of

trial proceedings and submits a report at the con-

clusion of those proceedings setting forth his recom-

mendations respecting issues of fact and law. In

complex cases, the Master may choose to submit

reports at intermediate stages of the litigation. In

this case, the Master has submitted a report at an

intermediate phase of the remedial proceedings to set

out his intended course in determining a remedy.

We suggest that this Court should overrule Colo-

rado’s exceptions to the Master’s recommendations

without prejudice to renewal at the conclusion of the

remedial phase. Colorado’s challenges have uncertain

importance at this stage of the proceedings. This

Court’s resolution of those issues might provide the

parties with greater certainty in the progress of this

particular case, but it would thrust the Court into the

position of deciding important issues conclusively—

13

and perhaps unnecessarily—without the benefit of the

Master’s final recommendation on an appropriate

remedy. The Master’s proposed approach to fashion-

ing a remedy appears sound, and this Court should

therefore postpone review until the Master has

recommended a specific remedy, which may either

eliminate the current controversies or sharpen the

precise issues in dispute.

I. COLORADO’S ELEVENTH AMENDMENT

CHALLENGE IS NOT RIPE FOR CONCLUSIVE

RESOLUTION BY THIS COURT

Colorado challenges (Br. 7-24) the Special Master’s

recommendation that, if money damages are awarded

to Kansas, the amount of damages may be based, in

part, on evidence of the injury to Kansas’s individual

water users as a result of Colorado’s breach. Colorado

specifically relies on the Eleventh Amendment, which

bars the federal courts from hearing suits “com-

menced or prosecuted against one of the United

States by Citizens of another State.” U.S. Const.

Amend. XI. According to Colorado, the Master’s con-

sideration of individual losses transforms Kansas’s

suit against Colorado from a suit between two

sovereign States, over which this Court has original

jurisdiction, to a suit between individual! citizens

of Kansas and the sovereign State of Colorado,

which would be barred by the Eleventh Amendment.

Colorado’s exception should be overruled because it is

premature and because it rests on an unwarranted

interpretation of the Master’s recommendation.

A. Colorado asks this Court to resolve definitively

a constitutional issue that has uncertain importance

at this stage of the proceedings. That request is

contrary to this Court’s settled practice:

14

“If there is one doctrine more deeply rooted than

any other in the process of constitutional ad-

judication, it is that we ought not to pass on

questions of constitutionality .. . unless such

adjudication is unavoidable.’ Spector Motor Serv-

ice v. McLaughlin, 323 U.S. 101, 105 (1944). It has

long been the Court’s ‘considered practice not to

decide abstract, hypothetical or contingent

questions . . . or to decide any constitutional

question in advance of the necessity for its

decision . . . or to formulate a rule of con-

stitutional law broader than is required by the

precise facts to which it is to be applied . . . or to

decide any constitutional question except with

reference to the particular facts to which it is to

be applied. ... .’” Alabama State Federation of

Labor v. McAdory, 325 U.S. 450, 461 (1945).

Clinton v. Jones, 117 S. Ct. 1636, 1642 n.11 (1997)

(quoting Rescue Army v. Municipal Court of Los

Angeles, 331 U.S. 549, 570 n.34 (1947)) (parallel

citations omitted).

The main issue currently before the Master is what

remedy, if any, Kansas should receive as a result of

Colorado’s breach of the Compact. This Court ruled

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

where an interstate compact does not specify the

appropriate remedy for a breach, the Court has dis-

cretion to award “a suitable remedy, whether in water

or money.” Jd. at 130. In this case, Kansas advocates

a remedy of money damages, while Colorado advocates

a remedy in the form of “make-up water.” See Rep.

15

72-74. The Master has not determined which remedy

is appropriate. Rep. at 113.

In progressing toward resolution of that issue, the

Master has made uncontested final recommendations

regarding the levels of depletions of usable Stateline

flow caused by Colorado’s breach during the periods of

1950-1985 and 1986-1994. Rep. 11, 46 (setting deple- ©

tions for 1950-1985 at 328,505 acre-feet and for 1986-

1994 at 91,565 acre-feet). Stateline depletions, how-

ever, do not necessarily result in compensable in-

juries. Kansas is entitled to damages only if those

depletions actually caused injury to Kansas. The

Master concluded that, if he chooses to award money

damages, the Eleventh Amendment would not bar him

from determining Kansas’s damages based, in part, on

evidence of injury to the State’s water users. See

Rep. 85-104, 113.

In light of this Court’s established policy against

deciding abstract, hypothetical, or contingent issues,

the Court should not conclusively resolve Colorado’s

Eleventh Amendment challenge to the Master’s pro-

posed course of action at this time. If the Master

ultimately recommends that Kansas is not entitled to

a remedy or that the remedy should take the form of

replacement water, and the Court agrees with that

recommendation, there will be no need to resolve

Colorado’s constitutional challenge.? And if the Mas-

ter ultimately recommends that Kansas is entitled to

money damages, Colorado will be free to challenge the

Master’s method of calculating those damages at that

time. There is no pressing need for the Court to

2 Colorado concedes (Br. 22) that the Eleventh Amendment

would not preclude this Court from awurding replacement

water to Kansas.

16

resolve the constitutional issue unless and until the

Master recommends a final remedy that squarely

presents the question in a concrete setting.°

B. This Court should be particularly reluctant to

resolve Colorado’s exception because it rests on an

unwarranted interpretation of the Master’s recom-

mendation. Colorado characterizes the Master’s re-

commendation as allowing Kansas to recover, on

behalf of individual Kansas water users, the actual

losses suffered by those citizens. See, e.g., Colo. Br.

6, 9. We read the Master’s report to suggest a more

limited use of individual-loss evidence. The Master

carefully articulated the distinction between suits in

which a State sues as a trustee for individual citizens

and suits in which a State sues as parens patriae.

His analysis indicates that he is sensitive to the

limitations that the Eleventh Amendment imposes in

suits brought under this Court’s original jurisdic-

tion. See Rep. 85-98.

The Eleventh Amendment provides in relevant part

that “(t]he 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

3 See Jllinois v. Kentucky, 500 U.S. 380, 389 (1991) (rejecting

as “premature” Kentucky’s exception regarding the location

of the low-water mark of the Ohio River because of the need

for further recommendations by the Special Master); United

States v. Louisiana, 485 U.S. 88, 92-93 (1988) (overruling Mis-

sissippi’s exceptions to Special Master’s Report without preju-

dice to allow Special Master time to address the issue);

cf. Wyoming v. Oklahoma, 502 U.S. 487, 463 (1992) (Scalia, J.

dissenting) (“Almost all other litigants must go through at least

two other courts before their case receives our attention. It has

become our practice in original-jurisdiction cases to require

preliminary proceedings before a special master, to evaluate

the facts and sharpen the issues.”).

17

United States by Citizens of another State.” U.S.

Const. Amend. XI. As the Master recognized, the

Eleventh Amendment also prevents a State from

suing as a “trustee” seeking to enforce the rights of

individual citizens. See Rep. 85-98. See New Hamp-

shire v. Louisiana, 108 U.S. 76 (1883); North Dakota

v. Minnesota, 263 U.S. 365 (1923).

The Eleventh Amendment does not bar, however, a

suit brought by a State acting as parens patriae “to

prevent or repair harm to its ‘quasi-sovereign’ inter-

ests.” Hawaii v. Standard Oil Co., 405 U.S. 251, 258

(1972). As the Court stated in North Dakota:

The right of a State as parens patriae to bring

suit to protect the general comfort, health, or

property rights of its inhabitants threatened by

the proposed or continued action of another State,

by prayer for injunction, is to be differentiated

from its lost power as a sovereign to present and

enforce individual claims of its citizens as their

trustee against a sister State.

263 U.S. at 375-376; see also Maryland v. Louisiana,

451 U.S. 725, 745 n.21 (1981) (“[AJn original action be-

tween two States only violates the Eleventh Amend-

ment if the plaintiff State is actually suing to recover

for injuries to specific individuals.”); Hawaii, 405

U.S. at 259 n.12 (“An action brought by one State

against another violates the Eleventh Amendment if

the plaintiff State is actually suing to recover for

injuries to designated individuals.”).

The New Hampshire and North Dakota decisions

illustrate that distinction. In New Hampshire, citi-

zens of New Hampshire and New York held bonds

issued by the State of Louisiana, payment of which

was in default. The individual holders assigned the

18

bonds to their respective States, which brought an

original action in this Court to recover the amount

due on the bonds. The Court concluded that the

States’ action was barred by the Eleventh Amend-

ment because it was a mere subterfuge for recovery

on behalf of the individual bondholders. The States,

according to the Court, were “nothing more nor less

than * * * mere collecting agent[s] of the owners of

the bonds and coupons, and while the suits are in the

names of the states, they are under the actual control

of individual citizens, and are prosecuted and carried

on altogether by and for them.” New Hampshire, 108

USS. at 89.

In North Dakota, the Court ruled that the Eleventh

Amendment barred North Dakota from bringing a

damages claim against Minnesota seeking $1 million

“for its inhabitants whose farms were injured and

whose crops were lost” as a result of flooding alleg-

edly caused by Minnesota’s use of the Mustinka

River. 263 U.S. at 374. The Court observed:

4 Among other things, the individual owners were required

to fund all costs and expenses of the litigation, and state law

required that all moneys collected be kept by the State’s

Attorney General, as special trustee, in a separate account.

Those moneys were to be paid over to the owner of the bond

after the litigation costs were deducted. New Hampshire, 108

U.S. at 89. In the case of New Hampshire, the individual bond-

holders also had the right to choose their own counsel to pursue

the claim, and their consent was required before the claims

could be settled. Ibid. Based on those facts, the Court declared

that “[nJo one can look at the pleadings and testimony in these

cases without being satisfied, beyond all doubt, that they were

in legal effect commenced, and are now prosecuted, solely by

the owners of the bonds and coupons.” [bid.

19

The evidence discloses that nearly all the Dakota

farm owners, whose crops, lands, and property

were injured in these floods, contributed to a fund

which has been used to aid the preparation and

prosecution of this cause. It further appears that

each contributor expects to share in the benefit of

the decree for damages here sought, in proportion

to the amount of his loss. Indeed it is inconceiv-

able that North Dakota is prosecuting this damage

feature of its suit without intending to pay over

what it thus recovers to those entitled.

Id. at 375. The Court ruled that North Dakota was

acting, not as parens patriae, but as a trustee, seeking

to present and enforce individual claims of its

citizens. Ibid.

In this case, the Master determined that Kansas

had commenced the current action as parens patriae

to protect its sovereign and quasi-sovereign interests

under the Arkansas River Compact, and not as a

trustee for individual Kansas citizens. See Rep. 88

(“Of course, this action is no mere contrivance by

Kansas to obtain damages for its water users.”). He

concluded that Kansas is the real party in interest

and is seeking recovery for injuries to its legitimate

interests in the general economic well-being and

property of its citizens, interests which are “inde-

pendent of and behind the titles of its citizens.”

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

592, 604 (1982) (quoting Georgia v. Tennessee Copper

Co., 206 U.S. 230, 237 (1907)).

In light of this Court’s decisions, the Master

properly concluded that, so long as the end to be

achieved is compensating a State for injury to its own

legitimate interests, as distinguished from compen-

20

sating designated citizens for injuries to their

individual rights, the Eleventh Amendment allows

consideration of evidence of individual losses that is

relevant in calculating the proper measure of the

State’s damages. The Master’s recommendation is

consistent with the Court’s invocation of broad

discretion in formulating a fair and equitable remedy

in cases under the Court’s original jurisdiction. See

Texas v. New Mevico, 482 U.S. at 180 (the Constitu-

tion entrusts the Court with sufficient judicial power

to “order[ ] a suitable remedy, whether in water or

money,” and “the Eleventh Amendment is no barrier,

for by its terms, it applies only to suits by citizens

against a State”).

5 There is a passage in the Master’s report that suggests a

broader use of individual loss evidence. In addressing Kansas’s

claim that the Compact itself requires treating individual

water users and the State as one, the Master stated that “the

State of Kansas is the signatory to the Arkansas River Com-

pact, and the only party that can sue to protect the Stateline

flows guaranteed for use by Kansas water users. * * * Ifa

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.’” Rer.

103 (quoting Texas v. New Merico, 482 U.S. 124, 134 (1987)).

That passage, however, does not necessarily herald an Elev-

enth Amendment transgression. In any event, as we have

noted, the Master’s definition of the scope of Kansas’s interests

and his use of evidence of individual losses in calculating

damages will be fully reviewable once he recommends a final

remedy.

21

II. COLORADO’S CHALLENGE TO THE POSSI-

BLE AWARD OF PREJUDGMENT INTEREST

IS NOT RIPE FOR CONCLUSIVE RESOLU-

TION BY THIS COURT

Colorado also takes issue (Br. 24-26) with the

Master’s recommendation that, if Kansas proves that

it is entitled to compensation, either in the form of

money damages or make-up water, the award may,

depending on future evidence adduced at trial on the

remedy issue, include prejudgment interest. See Rep.

113. According to Colorado (Br. 24), the Court is

bound by the traditional common law rule that

prejudgment interest is not allowed on unliquidated

claims. Colorado’s second exception, like its first,

should be overruled because it does not present an

issue that is ripe for resolution at this time.

A. This Court has never directly considered

whether there is a categorical rule against prejudg-

ment interest in original jurisdiction cases. The

United States’ liability for interest in original

actions, like its liability in other cases, is governed by

the usual principles respecting federal sovereign

immunity.° The liability of the individual States,

however, remains an open question. Colorado asks

this Court to address the issue in an abstract and

hypothetical context in which any award would be

contingent on future proceedings before the Master.

We suggest that the Court should decline that

6 This Court has held that “in the absence of constitutional

requirements, interest can be recovered against the United

States only if express consent to such a recovery has been given

by Congress.” United States v. New York Rayon Co., 329 U.S.

654, 658-659 (1947). See also Library of Congress v. Shaw, 478

U.S. 310 (1986).

22

invitation and overrule Colorado’s exception without

prejudice.

The question whether a State may obtain prejudg-

ment interest in an original proceeding should be

resolved in a concrete factual context. That context

is missing in this case. The Master has made no

decision whether prejudgment interest should be

awarded to Kansas. Indeed, the Master has not yet

determined what, if any, remedy would be appropriate

and whether that remedy should take the form of

replacement water or money damages. Rather, the

Master has stated that “the possible award of prejudg-

ment interest will depend upon the evidence presented

in future trial proceedings.” Rep. 114. Like its Elev-

enth Amendment challenge, Colorado’s challenge to

the use of prejudgment interest may become moot

depending on how the Master resolves future eviden-

tiary questions at trial. If the Master ultimately re-

commends an award of some measure of prejudgment

interest, the issue will be fully reviewable by the

Court at that time.

B. This Court should be reluctant to resolve

Colorado’s exception at this point in the absence of a

strong showing that the Master’s preliminary re-

commendation is misguided. Colorado has not made

such a showing. To the contrary, the Master has

identified a number of considerations that provide a

sensible basis, at least in the context of an award of

money damages, for rejecting Colorado’s contention

that this Court should adopt a categorical rule

prohibiting prejudgment interest. See Rep. 105-111.

First, although the Court has acknowledged the

traditional common law approach to prejudgment in-

terest, see, e.g., Monessen Southwestern Ry. v. Mor-

gan, 486 U.S. 330, 338-339 (1988) (concluding that

23

Congress intended to incorporate the common law

rule against prejudgment interest into the Federal

Employers’ Liability Act), the Court has repeatedly

noted that the distinction between liquidated and un-

liquidated damages is questionable and that the rule

against prejudgment interest is inconsistent with the

goal of full compensation. See City of Milwaukee v.

Cement Div., Nat'l Gypsum Co., 515 U.S. 189, 197

(1995) (“{TJhe liquidated/unliquidated distinction has

faced trenchant criticism for a number of years.”);

Funkhouser v. J.B. Preston Co., 290 U.S. 163, 168-169

(1933) (“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 re-

garded 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 ob-

taining the award of damages.”).

Second, the rule against prejudgment interest for

unliquidated claims has not been as absolute as

Colorado portrays. For example, prejudgment inter-

est has been allowed in instances of “bad faith or

other exceptional circumstances.” General Motors

Corp. v. Devex Corp., 461 U.S. 648, 653 (1983) (noting

that under the common law rule, “prejudgment inter-

est could not be awarded where damages were unliqui-

dated, absent bad faith or other exceptional circum-

stances”). Moreover, the courts have not always felt

bound even by that construction of the rule. As this

Court noted in Funkhouser, because the common law

rule provided inadequate compensation, “the rule with

respect to unliquidated damages has been in evolu-

tion, and in the absence of legislation the courts have

24

dealt with the question of allowing interest according

to their conception of the demands of justice and

practicality.” 290 U.S. at 168-169 (citation omitted).’

Third, this Court has never addressed the issue of

prejudgment interest in the context of interstate

original actions. While the Court is certainly free to

adopt the common law rule here, the nature of this

Court’s original jurisdiction and its broad discretion

in formulating fair and equitable remedies in such

cases, see Texas v. New Mexico, 482 U.S. at 130, may

provide a basis for the Court to modify or reject a

common law rule developed in other contexts. For

example, in Texas v. New Mezxico, the Court rejected

New Mexico’s contention that it was precluded from

awarding post-judgment interest in the absence of

any statute authorizing such interest. Jd. at 133 n.8.°

In sum, the Master has provided a sound basis for

rejecting Colorado’s categorical rule at this interme-

’ Furthermore, the courts have recognized an established

exception to the rule against prejudgment interest for suits in

admiralty, where the rule was that prejudgment interest was

recoverable except in “peculiar” or “exceptional” circum-

stances. See City of Milwaukee, 515 U.S. at 194 (collecting

cases). A similar exception existed for parties owing debts to

the Federal Government, including debts owed by state and

local governments. See, e.g., United States v. Texas, 507 U.S.

529, 533-534 (1993); Board of Comm’rs v. United States, 308

U.S. 348, 350-353 (1939).

* New Mexico had relied in part on the Court’s opinion in

Pierce v. United States, 255 U.S. 398, 406 (1921), which, after

noting the common law rule that judgments do not bear inter-

est, held that post-judgment interest may not be awarded in the

absence of statutory authority. Emphasizing its broad discre-

tion in original jurisdiction cases, the Court declared that “we

are not bound by this rule in exercising our original juris-

diction.” New Mexico, 482 U.S. at 133 n. 8.

25

diate stage of the remedial proceedings. We submit

that the ultimate merits of those arguments are best

evaluated in the context of the Master’s recommenda-

tion of a final remedy. We accordingly urge the Court

to overrule Colorado’s exception on the ground that it

is not yet ripe for this Court’s conclusive resolution.

CONCLUSION

The exceptions of Colorado to the second report of

the Special Master should be overruled without pre-

judice to Colorado’s right to renew those exceptions,

if necessary, at the conclusion of the Master’s reme-

dial proceedings.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

LOIS J. SCHIFFER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor

General

DECEMBER 1997

, Supra: Court of the Uni

¢

STATE OF KANSAS,

p+, Te

:. pices Pate On Exce tions To The Repért

re | O7 The se Master

COLORADO'S dicabrinns TO THE THIRD REPORT

OF THE SPECIAL MASTER AND: -

BRIEF IN SUPPORT THEREOF

¢€

KEN SALAZAR

Attorney General of Colorado

Caro. D. ANGEL

Senior Assistant Attorney General

Davip W. Rossins

Special Assistant Attorney General

Counsel of Record

Dennis M. Montcomery

Special Assistant Attorney General

Hnt & Rossins, P.C.

1441-— 18th Street, #100

Denver, Colorado 80202

Telephone: 303-296-8100

No. 105, Original

*

In The

Supreme Court of the United States

¢

STATE OF KANSAS,

Plaintiff,

STATE OF COLORADO,

Defendant,

UNITED STATES OF AMERICA,

Defendant-Intervenor.

S

On Exceptions To The Report

Of The Special Master

4

COLORADO’S EXCEPTIONS TO THE THIRD

REPORT OF THE SPECIAL MASTER

¢

The State of Colorado respectfully files the following

exceptions to the Third Report of Special Master Arthur

L. Littleworth dated August 2000:

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

mendation that a monetary remedy for violations of the

Arkansas River Compact should include losses suffered

by individual water users in Kansas.

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

mendation that the unliquidated nature of Kansas’ claim

ee ee ae ne

for damages should not limit an award of prejudgment

interest. |

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

mendation that Kansas’ damages should include prejudg-

ment interest at the rates proposed by Kansas and that

prejudgment interest should be awarded from 1969 to the

date of the judgment.

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

mendation that damages for crop production losses on

surface water only lands in Kansas should be based on

the crop yield-evapotranspiration relationships used by

the Kansas experts.

Respectfully submitted,

KEN SALAZAR

Attorney General of Colorado

Carot D. ANGEL

Senior Assistant Attorney General

Davip W. Rossins

Special Assistant Attorney

General

Counsel of Record

DENNIS M. MONTGOMERY

Special Assistant Attorney

General

Hitt & Rossins, P.C.

1441 - 18th Street, #100

Denver, Colorado 80202

Telephone: 303-296-8100

Attorneys for Defendant

State of Colorado

Ce re ee ee

QUESTIONS PRESENTED

The State of Colorado will address the following

issues:

1. Whether the Special Master erred in recommend-

ing that money damages awarded to the State of Kansas

for violations of the Arkansas River Compact should

include losses suffered by individual water users in Kan-

Sas.

2. Whether the Special Master erred in failing to

consider extenuating factors in determining the amount

of damages that should be awarded for violation of the

Arkansas River Compact.

3. Whether the Special Master erred in recommend-

ing that prejudgment interest should be awarded on unli-

quidated damages; or, if prejudgment interest is awarded,

whether the Master properly considered factors that

should limit an award of prejudgment interest.

4. Whether the Special Master erred in recommend-

ing that prejudgment interest should be awarded on dam-

ages suffered by individuals in Kansas at the interest

rates paid by those individuals, rather than the interest

rates received by the State of Kansas.

5. Whether the Special Master erred in accepting the

crop production losses estimated by the Kansas experts to

determine damages.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................ i

Pe Sa so Vdc tn ths ueukeuccey aire 1

STATEMENT OF THE CASE...................... 1

1. Summary Of The Prior Proceedings ............ 1

2. Proceedings Leading Up To The Trial Of The

PE, FON ee ivcsecescliagiissgs cer 2

3. Trial Of The ssiieisins Hei, PO RR 4

SUMMARY OF ARGUMENT....................._. 6

I. A STATE ACTING IN ITS PARENS PATRIAE

CAPACITY IS NOT ENTITLED TO RECOVER

MONEY DAMAGES FOR LOSSES TO INDI-

VIDUAL WATER USERS THAT HAVE

OCCURRED AS A RESULT OF A VIOLATION

OF AN INTERSTATE COMPACT.........___ 10

Pe! TOs ccna ee 10

B. Colorado’s Exception To The Master’s Rec-

ommendation Is Now Appropriate For

UI hese niece ee 12

C. The 11th Amendment Does Not Allow A

State To Present And Enforce The Claims

We Oe NE ici, 13

D. The Special Master’s Recommendation Is

Based On The Mistaken Assumption That

The 11th Amendment Is Not A Factor In

PO Mh rene hicet Nuss sci uuee soe, 19

F

;

3

sé

4

:

:

3

&

3

7

|

|

fn A Rh ER le, ARN die

II.

II.

iil

TABLE OF CONTENTS - Continued

Page

PREJUDGMENT INTEREST SHOULD NOT BE

AWARDED ON KANSAS’ UNLIQUIDATED

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

THE MASTER’S RECOMMENDATIONS THAT

AN AWARD OF DAMAGES SHOULD

INCLUDE LOSSES SUFFERED BY INDIVID-

UAL WATER USERS AND PREJUDGMENT

INTEREST ON SUCH LOSSES IS FUNDA-

MENTALLY UNFAIR TO COLORADO AND IS

INCONSISTENT WITH THIS COURT’S PRIOR

DECISION EXCUSING KANSAS FROM MAK-

ING A COMPLAINT ABOUT POST-COM-

PACT WELL PUMPING IN COLORADO

CITTTL,. BOB 6 a xis cewwe ds codscdctsanceusene

A. The Difficulty of Determining The Impacts

Of Ground Water Withdrawals Should Be

Considered In Determining Whether To

Award Damages And Prejudgment Inter-

est On Damages ......ccrcccvnsceseceses

B. Colorado’s Effort To Regulate Ground

Water Withdrawals For The Benefit Of

Senior Surface Water Rights In The 1970s

Demonstrates The Difficulty of Determin-

ing The Impacts Of Ground Water With-

drawals At That Time...................

C. Kansas’ Difficulty In Proving Its Case Fur-

ther Demonstrates The Difficulty Of

Determining The Impact Of Ground Water

Pumping On Usable Stateline Flows.....

25

28

30

32

CONCLUSION

iv

TABLE OF CONTENTS - Continued

Page

IV. THE MASTER’S RECOMMENDATION THAT

PREJUDGMENT INTEREST SHOULD BE

AWARDED ON DAMAGES SUFFERED BY INDI-

VIDUALS IN KANSAS AT THE INTEREST

RATES PAID BY THE INDIVIDUALS, RATHER

THAN AT THE INTEREST RATES RECEIVED BY

THE STATE OF KANSAS, IS INCONSISTENT

WITH THE BASIS ON WHICH KANSAS WAS

ALLOWED TO BRING THIS SUIT AND IS

woperenee TAP CORAM. 65 ccccctevtccccesscs

THE CROP PRODUCTION LOSSES ESTI-

MATED BY THE KANSAS EXPERTS ARE

NOT REASONABLE AND THE MASTER’S

RECOMMENDATION TO AWARD THESE

LOSSES TO KANSAS SHOULD NOT BE

ACCEPTED BY THE COURT

ooo eoeweoeweoe eee eee ee ee eeeeaeoeaeeeeeeneesees

¥

TABLE OF AUTHORITIES

Page

CASES

Acton v. Blundell, 12 Mees and W. 324 (1843)........ 30

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

PPE Sees re eee ner ed 2 17, 20, 21, 24

Arizona v. California, 373 U.S. 546 (1963)............. 11

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

6 a) ER ee rT rn Weary tet ie art). kg vy! 13

California v. United States, 438 U.S. 645 i BAeehiees 11

City of Milwaukee v. Cement Div., National Gypsum

CO, SEW a SO CRP a hee Cred eendaleniccanece;k 26

Colorado v. Kansas, 320 U.S. 383 (1943) ... 11, 42, 43, 49

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

Funkhouser v. J.B. Preston Co., 290 U.S. 163 (1933) .... 26

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

LOPE PAS 9E5 C8 bn 0d db psG bas dnaneb se TRCi ated ms cawan 27

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907)..14, 21

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

Hawaii v. Standard Oil Co., 405 U.S. 251 (1972)....17, 21

In Re the General Adjudication of All Rights to Use

Water in the Gila River System and Source, 9 P.3d

Pee CREE. GOOD oak bab cvicoccevexendesiesennecess 31

Kansas v. Colorado, 206 U.S. 46 (1907)............. 11, 14

Kansas v. Colorado, 475 U.S. 1079 (1986) .............. 1

Kansas v. Colorado, 484 U.S. 910 (og Se rane ae 1

vi

TABLE OF AUTHORITIES - Continued

Page

Kansas v. Colorado, 514 U.S. 673 (1995) ..2, 6, 27, 33, 37

Kansas v. Colorado, 522 U.S. 1073 (1998) ...........--. 2

Kansas v. Nebraska, No. 126, Original............. 10, 11

Kuiper v. Atchison, Topeka & Santa Fe Ry. Co., 195

Colo. 557 (1978) ......ccccccccccccccsccccccncccccs 35

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

Maryland v. Louisiana, 452 U.S. 456 (1981) ....cseeee 18

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

330 (1988)... 2... cece eee ccc cece ree eececesceccees 26

Nebraska v. Wyoming, 515 U.S. 1 +) eer 11

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

eoh ee Ese eaeeae eek hee seen ese es Eee MeN. 14, 15, 21, 24

New Jersey v. New York, 283 U.S. 336 (1931). .....066. 10

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

Oklahoma ex rel. Johnson v. Cook, 304 U.S. 387 (1938) .... 21

Pennsylvania v. New Jersey, 426 U.S. 660 (1976)....... 17

Pennsylvania v. West Virginia, 262 U.S. 553 (1923)....20, 39

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

275 (1950)... cece cece ccc ccececcccccceccccencseees 17

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

U.S. 299 (1990) ..... ccc cece eccccecccccecceecceees 22

ee

Vii

TABLE OF AUTHORITIES - Continued

Roath v. Driscoll, 20 Conn. 533 (1850)................ 30

Seminole Tribe of Florida v. Florida, 517 U.S. 44

FE 500 ach eka te ios ce eusa eas aa 13, 21, 22, 24

Talbot v. Seeman, 5 U.S. (1 Cranch) 1 (1801).......... 37

Texas v. New Mexico, 462 U.S. 554 (1983) .......... 47> 22

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

cn buen caved detec eaeeeteeeel 2, 12, 20, 22, 23, 38, 39

Texas v. New Mexico, 494 U.S. 111 <n 3, 22

Virginia v. West Virginia, 206 U.S. 290 (1907).......... 7

Virginia v. West Virginia, 238 U.S. 202 (1915)......... 25

Wyoming v. Colorado, 259 U.S. 419 (1922) ............ 23

Wyoming v. Colorado, 286 U.S. 494 (1932) kak saws eek 23

Wyoming v. Colorado, 298 U.S. 573 (1936) ............ 23

Wyoming v. Colorado, 309 U.S. 572 (1940) ..... 23, 24, 29

STATUTES, TREATISES, AND OTHER AUTHORITIES

SP Gee A Doe nd FKS A eee eed Dade oek Clee 1

Te Wires 2 ND. bb sn bavcake ch ae piaaeawuh ecu 27

Arkansas River Compact, Act of May 31, 1949, ch.

Bete He SO BOD CRT ok sin wv Sov ened ae dicduns scbanes 1

Arkansas River ae, ae} re 2

Arkansas River Compact, Art. VII-A................ 24

Arkansas River Compact, Article I-A................ 21

Colo. Sess. Laws, ch. 289, § 5 (1957)................ 32