This post originally appeared at The Kansas Progress, before this blog went live.
The history of the litigation between Kansas and Colorado over water rights to the Arkansas River goes back over 100 years (the Supreme Court addressed it in one case in 1902), however the most recent cases stem from a 1948 compact between the two states. Over the years Colorado broke some of the terms of the compact through development and permitting certain water use by farmers adjacent to the river. The problem came to light in the 1970s as Kansans researched some of the underlying causes of drought problems that had affected the southwest of the state. Kansas sued Colorado in 1986 and the case was assigned to a Special Master to conduct hearings and discovery. The case has been before the Supreme Court three times in various guises as the case progressed, in 1995, 2001 and 2004.
The case is now in its final stages and approaching a wind-down. Along the way, Colorado admitted culpability for the water use and has paid Kansas $34 million compensation plus some costs. Kansas meanwhile lost its argument over when the compensation should be backdated to, but won the argument that the compensation include losses incurred by individual farmers.
The case before the court formalizes the agreement that has been made between the two states under the Special Master. However, Kansas has filed an Exception to one part of the ruling which governs the costs that it can recoup. The Special Master has ruled that the Federal Law governing Expert Witness costs applies, Kansas contends that it does not apply to cases where the Court is exercising its original jurisdiction to handle cases between the States, and that even if it did purport to apply there, Congress lacks the authority to pass such a law. At issue are approximately $10 million in expert costs Kansas incurred during the course of the litigation.
A final wrinkle in the case is that after Colorado filed its reply to Kansas’ case, Kansas filed a sur-reply (in effect a reply to Colorado’s reply, which was not explicitly allowed for in the motions governing this case). There is a question as to whether this action is permitted, which may be addressed by the Court before the day of oral argument. In an ordinary appellate case a petitioner to the court would be able to file a reply brief within certain time limits. Kansas cites this arrangement, but Colorado points out that Kansas did not file its reply within those time limits.