Kansas v. Colorado

125 S. Ct. 526, 160 L. Ed. 2d 418, 18 Fla. L. Weekly Fed. S 22, 543 U.S. 86, 2004 U.S. LEXIS 8168, 34 Envtl. L. Rep. (Envtl. Law Inst.) 20151, 73 U.S.L.W. 4021
Supreme Court of the United States·Decided December 7, 2004·No. 105 ORIG·Published·Cited by 12 cases

Opinions

Justice Breyer

delivered the opinion of the Court.

We again consider a long-running water dispute between Colorado and Kansas. The water is that of the Arkansas River, once proudly called the “Nile of America.” The river originates high in the Rocky Mountains. It runs eastward' through Colorado, Kansas, Oklahoma, and Arkansas, before joining the Mississippi near the town of Arkansas Post. For decades, Kansas and Colorado disagreed about the division of its upper waters. See Kansas v. Colorado, 206 U. S. 46 (1907); Colorado v. Kansas, 320 U. S. 383 (1943). In 1949, they entered into an interstate compact. See Arkansas River Compact (Compact), 63 Stat. 145 (agreeing to “[equitably divide and apportion” the waters (internal quotation marks omitted)). But the disagreements have persisted.

Present proceedings began in 1985, when Kansas charged that Colorado had violated the Compact. Kansas pointed out that Compact Art. IV-D says:

“This Compact is not intended to impede or prevent future beneficial development of the Arkansas River basin [91] 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: Provided, that the waters of the Arkansas River, as defined in Article III, shall not be materially depleted in usable quantity or availability for use to the water users in Colorado and Kansas under this Compact by such future development or construction.” Id., at 147 (emphasis added and internal quotation marks omitted).

Kansas submitted that Colorado “development,” in particular increases in ground water consumption through new and existing irrigation wells, had “materially depleted” the water otherwise available “for use” by Kansas’ “water users.” Our appointed Special Master agreed, recommending that we find that Colorado had unlawfully depleted the river in violation of Art. IV-D. 2 First Report of Special Master 336 (hereinafter Report). We accepted the Special Master’s recommendations and remanded the case for remedies. Kansas v. Colorado, 514 U. S. 673, 694 (1995) (Kansas I).

The Special Master set forth proposed remedies in his Second and Third Reports. He said that Colorado had over-depleted more than 400,000 acre-feet of usable river flow from 1950 through 1994. Second Report 112. He recommended that Colorado pay Kansas monetary damages to make up for the depletions. Third Report 119. He divided losses into six categories, calculating damages somewhat differently in each category. See id., at 120. And he recommended that Kansas be awarded prejudgment interest on damages reflecting losses incurred from 1969 through 1994. Id., at 107. We subsequently adopted the Special Master’s recommendations with one exception; we held prejudgment interest would run from 1985 (not 1969). Kansas v. Colo[92] rado, 533 U. S. 1, 15-16 (2001) (Kansas III). See infra, at 95-97. And we remanded the case. 533 U. S., at 20.

The Master has now filed a Fourth Report setting forth his resolution of certain remaining issues. Kansas takes exception to several of the Fourth Report’s recommendations. We overrule Kansas’ exceptions and adopt all of the Special Master’s recommendations.

I

Kansas, asked the Special Master to recommend that we appoint a River Master with authority to decide (within clear error limits) various technical disputes related to decree enforcement. See Texas v. New Mexico, 482 U. S. 124, 134 (1987) (appointing a River Master to-“make the calculations provided for in [a] decree” concerning the Pecos River). The Special Master rejected Kansas’ request, recommending instead that “the Court retain continuing jurisdiction in this case for a limited period of time” to permit the Special Master himself to resolve any lingering issues (subject, of course, to this Court’s review). Fourth Report 135. Kansas here renews its request for appointment of a River Master.

We recognize that this Court has previously appointed a River Master to help resolve water-related disputes among States. Texas v. New Mexico, supra, at 134-135; New Jersey v. New York, 347 U. S. 995, 1002-1004 (1954). But it has done so only twice before, each time on recommendation of the Special Master, always as a discretionary matter, and only because it was convinced that such an appointment would significantly aid resolution of further disputes. See Vermont v. New York, 417 U. S. 270, 275 (1974) (per curiam) (“[I]t is a rare case” where we will install a River Master). We are not convinced that such an appointment is appropriate here.

For one thing, further disputes in this case, while technical, may well require discretionary, policy-oriented decision-making directly and importantly related to the underlying legal issues. In this respect, potential disputes in this case [93] differ at least in degree from those that we have asked River Masters to resolve. Implementation of the Pecos River Decree, for example, involved application of a largely noncontroversial mathematical curve. The curve correlates inflows at various New Mexico River locations with expected outflows so that engineers can estimate, for any given inflow, the amount of water that is required to be available for Texas’ use. See Texas v. New Mexico, 462 U. S. 554, 572-573 (1983); see also Texas v. New Mexico, 446 U. S. 540 (1980) (per curiam). Lingering disputes between Texas and New Mexico, we thought, would involve not the curve’s shape but whether officials had properly measured the flows. 482 U. S., at 134-135. Although these disputes might call for a “degree of judgment,” they would often prove capable of mechanical resolution and would usually involve marginal calculation adjustments. Id., at 134; see id., at 135-136; Fourth Report 128 (The Pecos River Master “does not adjudicate the kinds of disputes” potentially at issue here).

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Kansas v. Colorado, 125 S. Ct. 526, 160 L. Ed. 2d 418, 18 Fla. L. Weekly Fed. S 22, 543 U.S. 86, 2004 U.S. LEXIS 8168, 34 Envtl. L. Rep. (Envtl. Law Inst.) 20151, 73 U.S.L.W. 4021 (U.S. 2004).

125 S. Ct. 526 (Kansas v. Colorado) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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