Nebraska v. Wyoming

Background

A Special Master handled an original action in which several states and outside groups participated. By an April 20, 1992 order, the Court awarded the Special Master interim compensation and reimbursement of expenses and asked parties and proposed intervenors/friend-of-court groups to comment on a suggested one-time special assessment of costs against intervenors and amici. Different arguments were made about amounts, but no party or proposed intervenor/amici objected to including nonobjecting amici in the assessment. The Special Master found that amici participation expanded the proceedings and increased costs.

Reasoning

Because no one objected to including nonobjecting amici, the Court did not decide the broader question of whether it may assess costs against nonparties and treated the lack of objection as agreement on procedure. The Court ordered payment according to the Special Master’s recommendations: Colorado was assessed $25,000; four proposed intervenors/friend-of-court groups (Basin Electric Power Cooperative, Central Nebraska Public Power and Irrigation District, the National Audubon Society, and the Platte River Whooping Crane Critical Habitat Maintenance Trust) were each assessed $5,000; and the remaining award was to be paid 40% by Nebraska, 40% by Wyoming, and 20% by the United States. Justice White would have adopted the Special Master’s allocation recommendation.

Real world impact

Named nonparty groups and Colorado must pay specified sums now, while Nebraska, Wyoming, and the federal government divide the rest. This is an interim payment for the Special Master’s fees and expenses in an ongoing proceeding, so the allocation could change later.

Dissents or concurrances

Justice Stevens dissented as to assessments against amici, arguing the Court lacks authority to tax costs to nonparties and that relying on their silence is improper for interim awards; he cited authorities suggesting amici are usually exempt.