Kansas v. Colorado

Background

This dispute began when the State of Kansas sued the State of Colorado, alleging that Colorado’s post-Compact drilling and groundwater pumping reduced water available to Kansas users under the Arkansas River Compact. The case has been litigated for decades with a Special Master appointed to make findings and recommendations. Most issues were resolved using expert work and a Hydrologic-Institutional Model; the remaining legal dispute concerned how much Kansas could recover for expert witness fees and whether a $40-per-day statutory fee limit applied.

Reasoning

The Court assumed, only for argument’s sake, that Kansas might have discretion to set fees in original cases. Even so, the Court decided it was sensible to apply the same $40-per-day witness attendance limitation found in the federal statute that governs lower courts. The opinion emphasized uniformity across federal cases and noted the long-standing policy (the so-called American Rule) that parties typically bear most litigation costs. The Court therefore overruled Kansas’ exception and approved the Special Master’s proposed judgment and decree.

Real world impact

The Court upheld a judgment awarding Kansas $34,615,146 for depletions and prejudgment interest, and approved a detailed Decree that enjoins Colorado from materially depleting usable stateline flows, requires use of the H-I Model for compliance accounting, and sets procedures for Replacement, Offset Accounts, and dispute resolution. Costs and certain reallocations were awarded and largely paid. The ruling limits what Kansas may recover for expert fees and imposes ongoing control and monitoring of Colorado groundwater practices.

Dissents or concurrances

Chief Justice Roberts, joined by Justice Souter, concurred, stressing that the Court retains authority over original-jurisdiction matters and agreeing that $40 was a reasonable fee here.