Kansas v. Colorado
The Supreme Court, acting as trial court in a decades-long water dispute between Kansas and Colorado, ruled that Kansas's expert witnesses can only be reimbursed at the standard $40-per-day federal witness fee rather than the far larger sums Kansas actually paid them.
The Court sidestepped the harder question of whether Congress can even limit witness fees in cases the Court hears directly, deciding instead that a uniform $40 rate makes sense regardless, and it approved a final judgment and decree resolving the entire Arkansas River Compact litigation.
“we conclude that the best approach is to have a uniform rule that applies in all federal cases”
Explaining why the Court chose to apply the same $40 witness fee cap used in ordinary federal courts.
How it got here: A Special Master appointed by the Supreme Court issued a Fifth and Final Report recommending a judgment and decree; Kansas filed an exception challenging the witness-fee ruling, bringing the dispute to the full Court.
The Case in Depth
What happened
Kansas sued Colorado in 1985, claiming Colorado violated the Arkansas River Compact by drilling irrigation wells that depleted water Kansas users were entitled to. Over two decades the Court found Colorado liable, awarded damages and interest, and worked out a detailed compliance system. The last unresolved issue was how much Kansas could recover for the expert witnesses it hired to help prove its case.
The question before the Court
In this long-running water dispute between Kansas and Colorado, should Kansas's expert witness fees be capped at the standard $40-a-day rate that applies in ordinary federal courts?
Why it matters
For Kansas, the ruling means recovering only about $163,000 of the roughly $9.2 million it spent on expert witnesses over the litigation. More broadly, it signals that parties litigating water and boundary disputes directly before the Supreme Court cannot expect to recoup the full cost of expensive expert testimony, encouraging states to weigh litigation costs carefully before bringing such suits.
What changes now
The Court approved and entered the proposed final judgment and decree, which had already resolved the damages award, cost allocations, and a detailed compliance framework for future Compact administration. The Court retains limited jurisdiction to resolve future disputes over compliance and can modify the decree, but the witness-fee question and the broader litigation are now finally resolved.
What this does not decide
The Court expressly did not decide whether Congress has actually tried to regulate witness fees in Supreme Court original-jurisdiction cases, nor whether the Constitution's original-jurisdiction clause would even allow Congress to do so. It resolved the fee dispute only by assuming, without deciding, that the Court has full discretion over the question.
Concurrences and dissents
Concurrence — Justice Roberts
Chief Justice Roberts, joined by Justice Souter, agreed with the $40 fee but wrote separately to stress that the Court's original jurisdiction, unlike its appellate jurisdiction, is not subject to congressional regulation under Article III. He emphasized that the Court itself, not Congress, ultimately controls whether and how much witness fees are available in original cases, even though the Court chose $40 as a reasonable amount here.
How the Court got there
The legal reasoning, step by step
- The Court declined to resolve the underlying legal dispute over whether the federal statute capping witness fees at $40 per day even applies to cases filed directly in the Supreme Court, or whether the Constitution's original-jurisdiction clause prevents Congress from imposing such a cap.
- Instead, the Court assumed for the sake of argument that Kansas was right that the Court has full discretion to set its own witness-fee rules in original cases, and asked what the best policy would be if that discretion existed.
- The Court noted that Congress's decision to cap witness fees in ordinary federal court cases reflects a modest departure from the 'American Rule,' the general principle that each side pays its own litigation costs rather than recovering them from the loser.
- The Court reasoned that cases filed directly with the Supreme Court are not meaningfully different from complex cases in ordinary federal courts, so there was no good reason to let expert witness costs be recovered more generously in one setting than the other.
- Concluding that a single, uniform fee rule across all federal litigation was the most sensible approach, the Court held that the $40-per-day rate used in ordinary federal courts should also govern cases within its own original jurisdiction, and it overruled Kansas's exception on that basis.
Doctrinal impact
Cases affected by this decision
Reaffirms Crawford Fitting Co. v. J. T. Gibbons, Inc. (482 U. S. 437)
The Court extends Crawford Fitting's $40-per-day witness fee limit for district courts to its own original-jurisdiction cases.