From Omaha World-Herald (Joseph Morton):
The court heard oral arguments Tuesday in the latest twist of the 1943 Republican River Compact signed by Kansas, Nebraska and Colorado. The case pits Nebraska against Kansas — not only over the amount of money Nebraska owes, but also to set the ground rules for what are sure to be future battles over the use of a critical but stressed resource.
Justices had sharp questions for both sides. They expressed skepticism about Kansas’ claim for higher damages as well as Nebraska’s desire to rewrite the formula used to calculate water usage.
As is typical in such interstate disputes, a special master earlier had reviewed the case for the court. He found that Nebraska owes $5.5 million — $3.7 million in basic damages with an additional $1.8 million attributed to the gains made by Nebraska farmers as a result of the violations. Nebraska is challenging the extra $1.8 million penalty.
Kansas Solicitor General Stephen McAllister, however, urged the justices to go significantly higher in penalizing Nebraska, contending that Nebraska’s actual gains were much larger than $3.7 million, or even $5.5 million. If Nebraska winds up with more in benefits than it is penalized for the excess water, he said, it will have no incentive to work hard at compliance in a future drought.
Justice Antonin Scalia focused on the extra penalty that Kansas is seeking.
“You want more than damages,” Scalia told McAllister. “You want to say, ‘I not only want to receive what it cost me, what your violation cost me, but I want in addition to receive any benefits that you got from the violation.’ … That’s not a normal contract remedy.”
Justice Samuel Alito pointed out that Nebraska’s violations of the compact had been ruled unintentional. But McAllister said Nebraska knew it was exposing Kansas to risk and described it as “more than negligent” on Nebraska’s part.
“These were massive violations on Nebraska’s part, knowing they were in trouble and just really not taking any kind of adequate steps,” McAllister said.
Nebraska Chief Deputy Attorney General David Cookson defended Nebraska’s efforts to stay in compliance
with the compact and to mitigate the situation once the problems were revealed. Still, he faced questions from Justices Elena Kagan and Ruth Bader Ginsburg, both of whom cited the special master’s findings that while Nebraska’s violations were not an intentional breach, the state should have seen what was coming.
“The special master also said essentially … that you were a conscious wrongdoer, that you failed to act, refused to act in the face of a known risk,” Kagan said to Cookson. She said the special master found that “unless there was some very lucky fortuitous thing that happened, the quite foreseeable effect of your actions was going to be that Kansas didn’t have enough water.”
Cookson said Nebraska does not agree with the findings about what Nebraska should have known or the idea that it took no action.
“Nebraska seized control of its consumptive use in 2002 while it was still negotiating the compact, and through 2006 reduced its pumping (by 35 percent),” Cookson said. “At the same time, however, Nebraska could not reasonably foresee that its allocations were going to fall even below the historical low period of record in this basin, which was the Dust Bowl.”
Nebraska also has asked the court to go along with the special master’s finding that the formula for calculating water usage should be reworked because it is unfair. Chief Justice John Roberts expressed skepticism about taking such a step, however.
“The idea of a special master or this court changing the nature of that agreement is a pretty radical one,” Roberts said.
The court is expected to rule before the end of the year.
After the arguments, Cookson told The World-Herald that it’s impossible to gather from the court’s questions which way the justices are leaning. They often play devil’s advocate and push harder on the side they ultimately agree with in order to sharpen the arguments in their favor.
“The court was very engaged,” Cookson said. “They asked questions that pushed the boundaries of both sides’ arguments.”
More Republican River Basin coverage here.