Law School Case Brief
Kansas v. Nebraska - 574 U.S. 445, 135 S. Ct. 1042 (2015)
From the time the United States Supreme Court began to apportion interstate rivers, it has recognized part of its role as guarding against upstream states inequitable takings of water. And as it has noted, that concern persists even after States enter into a compact: The Supreme Court may then exercise remedial authority to ensure compliance with the compacts terms, thus preventing a geographically favored state from appropriating more than its share of a river. Indeed, the formation of such a compact provides the Supreme Court with enhanced remedial power because the agreement is also an Act of Congress, and its breach a violation of federal law.
In 1943, Congress approved the Republican River Compact, an agreement between Kansas, Nebraska, and Colorado to apportion the virgin water originating in the Republican River Basin. In 1998, Kansas filed an original action in the United States Supreme Court contending that Nebraska's increased groundwater pumping was subject to regulation by the Compact to the extent that it depleted stream flow in the Basin. The Supreme Court agreed. Ensuing negotiations resulted in the 2002 Final Settlement Stipulation (Settlement), which established mechanisms to accurately measure water and promote compliance with the Compact. The Settlement identified the Accounting Procedures, a technical appendix, as the tool by which the States would measure stream flow depletion, and thus consumption, due to groundwater pumping. The Settlement also reaffirmed that imported water--that is, water brought into the Basin by human activity--would not count toward a State's consumption. Again, the Accounting Procedures were to measure, so as to exclude, that water flow. In 2007, following the first post-Settlement accounting period, Kansas petitioned the U.S. Supreme Court for monetary and injunctive relief, claiming that Nebraska had substantially exceeded its water allocation. Nebraska responded that the Accounting Procedures improperly charged the State for using imported water and requested that the Accounting Procedures be modified accordingly. The Court appointed a Special Master. His report concluded that Nebraska knowingly failed to comply with the Compact, recommended that Nebraska disgorge a portion of its gains in addition to paying damages for Kansas's loss, and recommended denying Kansas’s request for an injunction. In addition, the report recommended reforming the Accounting Procedures. The parties have filed exceptions.
Should the Special Master’s recommendation be adopted?
The Court ruled that the Special Master’s recommendations should be adopted as he properly concluded that Nebraska knowingly exposed Kansas to a substantial risk of receiving less water than the Republican River Compact provided, and thus, knowingly failed to comply with the Compact's obligations where Nebraska failed to adopt adequate mechanisms for staying within its allotment, and the Compact contemplated wet and arid years. According to the Court, disgorgement was a fair and equitable remedy for Nebraskas breach given its upstream position and the fact that the higher value of the water on its farmland rewarded its breach. Moreover, the settlement accounting procedures were amended so that they no longer charged Nebraska for imported water.
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