Kansas v. Nebraska
Headline: Interstate water accounting reformed and Nebraska ordered partial disgorgement after Court finds it knowingly violated the compact, while Kansas’s injunction request is denied, affecting farmers and state water allocations.
Holding: The Court found Nebraska knowingly failed to comply with the Republican River Compact, adopted the Special Master’s remedies ordering partial disgorgement and accounting reforms, and denied Kansas’s request for an injunction.
- Requires Nebraska to pay $1.8 million disgorgement plus $3.7 million in damages.
- Changes how imported Platte River water is counted, excluding it from compact accounting.
- Denies Kansas an injunction; enforcement relies on money remedies and revised accounting.
Summary
Background
Kansas, Nebraska, and Colorado agreed in a 1943 compact to share the Republican River Basin’s natural ("virgin") water. After disputes over how to count groundwater pumping, the States signed a 2002 Settlement that used a technical "Accounting Procedures" model and said imported water would not count. In the 2005–2006 accounting, Nebraska exceeded its allotment by 70,869 acre-feet; Kansas sued for money and an injunction. A Special Master found Nebraska had "knowingly failed" to comply, recommended $3.7 million in damages to Kansas plus $1.8 million in partial disgorgement, and proposed changing the Accounting Procedures to exclude imported Platte River water.
Reasoning
The Court reviewed the Master’s factual findings and equitable remedies. It agreed Nebraska had knowingly exposed Kansas to a substantial risk of breach by delaying and under-enforcing controls on groundwater pumping. The Court accepted the Master’s mix of remedies: require payment for Kansas’s loss, a partial disgorgement of Nebraska’s extra gains, and reform of the Accounting Procedures (the Master’s "5-run formula") so imported Platte River water will be excluded. The Court denied Kansas an injunction because Nebraska later adopted stronger compliance tools and the record did not show a sufficient danger of repeat violations.
Real world impact
Nebraska must pay Kansas for actual loss and an additional partial disgorgement, and the accounting rules used to measure interstate water use will be changed to exclude imported water. Farmers and water managers will face new monitoring and accounting practices, and future enforcement will rely on money awards and the revised model rather than an immediate court-ordered injunction.
Dissents or concurrances
Several justices agreed only in part. Chief Justice Roberts and Justices Scalia and Thomas objected to reforming the technical agreement and to expanding equitable disgorgement, arguing ordinary contract principles should limit the Court’s power.
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