SAM HANANEL
Associated Press
WASHINGTON (AP) — The Supreme Court on Tuesday considered how to resolve a long-running legal fight between Kansas and Nebraska over the use of water from the Republican River.
The justices appeared to agree with recommendations of a special master who found that Nebraska should pay $3.7 million in damages to Kansas for using more than its legal share of the river’s water in 2005 and 2006.
But they were more doubtful about making Nebraska pay a $1.8 million penalty that exceeds Kansas’ actual damages. The justices also seemed skeptical of the special master’s suggestion that the court could change a formula for measuring water consumption. Nebraska claims the formula is unfair.
Concerns about water usage are becoming more common as drought conditions have hurt Western and Plains states and forced officials to divvy up a more limited water supply to growing populations. Earlier this year, the Supreme Court ruled that Texas can proceed with a lawsuit to stop New Mexico from pumping groundwater from the Rio Grande.
Since 1999, Kansas has complained that Nebraska uses more than its fair share of water from the Republican River, which originates in Colorado and runs mostly through Nebraska before ending in Kansas. The dispute centers on a 1943 compact that allocates 49 percent of the river’s water to Nebraska, 40 percent to Kansas and 11 percent to Colorado.
Legal disputes between states are filed directly with the Supreme Court, which typically appoints a special master to consider the evidence and make recommendations to the justices.
Kansas Solicitor General Stephen McAllister argued that making Nebraska pay $1.8 million on top of actual damages was needed “to get their attention.” The state has also demanded more than $72 million in additional damages and an order that would shut down irrigation pumps for more than 300,000 acres of Nebraska farmland along the river basin.
“They didn’t just exceed a little bit, they blew past their allocations,” McAllister said.
But Justice Antonin Scalia said the Supreme Court had never approved such a penalty, known as disgorgement, in similar water disputes. Chief Justice John Roberts added: “I’m not sure the states bargained for that exposure.”
Several justices also questioned the special master’s recommendation to revise a formula for measuring water use that the states agreed to in 2003 as a way to resolve another part of the dispute.
David Cookson, chief deputy attorney general for Nebraska, argued that the court has the power to change a formula that mistakenly counts “imported water” that drains into the Republican River basin from the Platte River.
But that argument was met with doubts.
“The idea of a special master or this court changing the nature of that agreement is a pretty radical one,” Roberts said.
Justice Breyer pointed out that the three states could come to an agreement on their own to work out a new formula, rather than relying on the nine justices “who couldn’t know less about it.”
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