February 28, 2015 Practice Points

SCOTUS Opinion a Bridge over Troubled Waters?

The Supreme Court addressed a long-standing water-use dispute between Kansas and Nebraska, modifying prior agreed-to accounting procedures.

By Justin L. Heather

The U.S. Supreme Court recently resolved exceptions raised to a special master’s report regarding an accounting of water use involving a dispute between the states of Kansas and Nebraska. In Kansas v. Nebraska, the high court was called upon to resolve certain exceptions to a special master’s report with respect to Nebraska’s use of waters governed by a state compact and prior settlement.

In 1943, Congress approved the Republican River Compact, which was an agreement between Colorado, Kansas, and Nebraska regarding the apportionment of “virgin water originating in” the Republican River Basin. Following a prior dispute, the parties entered into a settlement that established mechanisms for accurately measuring water consumption and promoting compliance with the compact. The dispute resolved by the Court arose in 2007, following the first post-settlement accounting period.

The Supreme Court first addressed its jurisdictional authority for resolving the dispute. The Court noted that proceedings under its original jurisdiction are “basically equitable in nature” and that in resolving disputes between states, the court may mold the process to best promote justice. Although the Court noted that it must generally enforce the terms of a compact between states, it may invoke equitable principles to devise fair solutions, remedy violations, and promote compliance, especially where the compact bears congressional approval.

Turning to the merits of the dispute, the Supreme Court adopted the recommendations made by the special master. Specifically, the high court agreed with the special master’s determination that Nebraska “knowingly failed” to comply with its obligations under the prior settlement and that disgorgement was an appropriate remedy for such breach. In so doing, the Court also rejected Kansas’s objection that partial disgorgement was insufficient. The Court also affirmed the special master’s recommendation that the accounting mechanisms be modified to avoid systematic error. Given the frequency of drought conditions and scarcity of water in the basin, it is likely not the last time this particular issue will be before the high court.

Keywords: litigation, equity, compact, water rights, special master, young lawyers

— Justin L. Heather, YAC Content Manager, The Quinlan Law Firm LLC, Chicago, IL

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