Gillio, Jeff

English

University of Denver

Water Law Review Volume 8 Issue 2 Article 9 1-1-2005 Kansas v. Colorado, 125 S. Ct. 526 (2004) Jeff Gillio Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Jeff Gillio, Court Report, Kansas v. Colorado, 125 S. Ct. 526 (2004), 8 U. Denv. Water L. Rev. 621 (2005). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. COURT REPORTSFEDERAL COURTSUNITED STATES SUPREME COURTKansas v. Colorado, 125 S. Ct. 526 (2004) (holding the Special Mas-ter's recommendation that the United States Supreme Court not ap-point a River Master was appropriate; overruling Kansas' objections tothe Special Master's recommendations; accepting the Special Master'srecommendation; and remitting the case to the Special Master forpreparation of a decree).This case involved a long running dispute between the states ofKansas and Colorado. In 1949, the two states entered into the Arkan-sas River Compact ("Compact"), whereby the states agreed to divideand apportion the waters of the Arkansas River equitably. In 1985,Kansas alleged Colorado violated Article IV-D of the Compact by de-pleting river water that otherwise would have been available for Kansas'use. The Special Master appointed under the United States SupremeCourt's original jurisdiction agreed with Kansas and recommended theCourt conclude Colorado violated Article IV-D of the Compact. TheCourt followed this recommendation and remanded the case forremedies. That case is commonly known as Kansas I. In a subsequentcase, Kansas III, the Special Master, in his Second and Third Reports,proposed methods for calculating remedies and recommended theCourt award prejudgment interest on the damages Kansas incurredfrom 1969 to 1994 due to Colorado's overuse of water. The Courtadopted the recommendations with the exception that prejudgmentinterest would begin in 1985 rather than 1969. The instant case in-volved the Special Master's Fourth Report, which resolved the remain-ing issues from Kansas I. Kansas objected to several of the Fourth Re-port's recommendations.Kansas first objected to the Special Master's recommendation thatthe Court not appoint a River Master to decide technical disputes re-lated to the decree. The Special Master advised the Court to retainjurisdiction and permit the Special Master to resolve remaining issuessubject to the Court's oversight. Accordingly, the Court denied Kan-sas' request for a River Master, noting the Court appointed a RiverMaster in only two other cases, and only because it significantly aidedin resolving further disputes. The Court reasoned further disputes inthis case might require "discretionary, policy-oriented decision-makingdirectly related to underlying legal issues." Thus, the Court concludedWATER LAW REVIEWthis case differed from those where it had appointed River Masters.The Court also commented that because neither party objected to us-ing arbitration, which the Compact provided for, the need for a RiverMaster, was minimal. Accordingly, the Court denied Kansas' objection.Kansas next objected to the Special Master's prejudgment interestcalculation. The Special Master found Colorado's unlawful water de-pletion began harming Kansas in 1950. Kansas argued interest shoulddate back to 1950. Colorado argued the Compact did not anticipateinterest on unliquidated claims. To resolve this problem, the SpecialMaster divided the prejudgment period into three periods: the EarlyPeriod, 1950 to 1968; the Middle Period, 1969 to 1985; and the Lateperiod, 1985 to 1994. The Special Master then awarded prejudgmentinterest for the Middle Period, resulting in a total damages award of$38 million. The Court accepted the Special Master's equitable ap-proach, but changed the prejudgment interest period from the MiddlePeriod to the Late Period. In addressing Kansas' complaint, the Courtstated its purpose in awarding prejudgment interest was equity, not thecompensation of lost investment opportunities. The Court also notedthat by not commenting on the Special Master's exemptions of theEarly Period, the Court had implicitly accepted the Special Master'sscheme. The Court concluded Kansas' contention that prejudgmentinterest should date back to 1950 ran counter to both the Court's equi-table scheme and the Court's damages award, which was slightly morefavorable to Colorado than was the Special Master's award.Kansas also objected to the Special Master's recommendation thatthe computer model the parties agreed to use to ensure Colorado'sfuture compliance be based on a 10-year measurement period. Kansasargued the Compact prohibited the accumulation of debits or creditson water usage, and a 10-year measurement would result in an averag-ing of Colorado's water usage that would be equivalent to allowing it toaccumulate debits or credits. However, the Court observed that whilethe Compact proscribed offsetting debits with credits, it failed to de-fine the duration for which to measure a credit. The Court also notedany period of measurement would involve an averaging of use over themeasurement period no mater how short the period. Moreover, theCourt pointed out the compliance computer model was highly inaccu-rate at modeling measurement periods of less than 10 years. Finally,the Court concluded that because Colorado law required the use ofwater replacement plans to minimize depletions, Kansas was unlikely tosuffer serious harm due to the 10-year measuring period. On thesebases, the Court overruled Kansas' objection to the 10-year measure-ment period.The Court similarly overruled Kansas' objection to the Special Mas-ter's recommendation that Colorado's Water Court determine the fi-nal amount of water replacement plan credits that applied towardColorado's compact obligations. Kansas claimed the Supreme CourtVolume 8COURT REPORTSmust oversee all questions essential to resolving interstate disputes.The Court concluded Kansas' argument ignored the full language ofthe Special Master's recommendation, which made the Colorado Wa-ter Court's determination subject to Kansas' right to relief under theCourt's original jurisdiction. Accordingly, the Court overruled thisobjection.On Kansas' objection, the Special Master found Colorado was incompliance for the years 1997-1999 using a measurement period oflonger than one year. The Court overruled Kansas' objection to theSpecial Master's finding because the Court already ruled against Kan-sas regarding the 10-year measurement period discussed above.The Court also ruled against Kansas on fifteen items, which theSpecial Master refused to make recommendations on, and which Kan-sas grouped in three categories: (1) disputed computer model calibra-tion issues, (2) disputed 1997-1999 accounting issues, and (3) disputedfuture compliance issues. The Court concluded the issues addressedby category two were moot under the Court's ruling on the 1997-1999compliance issue discussed above. As for categories one and three, theCourt stated that with the passage of time, the states would learn moreabout the computer model's strengths and weaknesses and, becausethe Court retained jurisdiction over the case, it could direct the SpecialMaster to address these remaining issues later.Accordingly, for the reasons discussed above, the Court acceptedthe Special Master's recommendations, overruled Kansas' objections,and recommitted the case to the Special Master for preparation of adecree.Jeff GillioUNITED STATES CIRCUIT COURTSFIRST CIRCUITAlliance to Protect Nantucket Sound, Inc. v. United States Dep't of theArmy, 395 F.3d 105 (1st Cir. 2005) (holding the Army Corps of Engi-neers properly exercised jurisdiction and followed proper proceduresto issue a permit for an offshore data tower on the Outer ContinentalShelf).On August 19, 2002, the United States Army Corps of Engineers("Corps") issued a navigability permit to Cape Wind Associates ("CapeWind") for the purpose of erecting an offshore data tower in an area ofNantucket Sound located on the federally controlled Outer Continen-tal Shelf ("OCS"). The tower's purpose was to gather data to deter-mine the feasibility of locating a wind energy plant in NantucketSound. After a public notice and comment period, the Corps issuedCape Wind the permit. The Corps accompanied the permit with anIssue 2

Kansas v. Colorado, 125 S. Ct. 526 (2004)

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Kansas v. Colorado, 125 S. Ct. 526 (2004)

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