Kansas v. Colorado – Oral Argument – March 21, 1995

Media for Kansas v. Colorado

Audio Transcription for Opinion Announcement – May 15, 1995 in Kansas v. Colorado

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William H. Rehnquist:

We’ll hear argument next in Number 105 Original, Kansas v. Colorado.

Mr. Draper.

John B. Draper:

Mr. Chief Justice, and may it please the Court:

The State of Kansas is here this morning in support of the report of the special master in this case in all respects except for three points.

This is a compact enforcement case.

It seeks enforcement of the Arkansas River Compact between Colorado and Kansas.

It is a Federal statute approved by Congress and signed by the President in 1949.

Kansas is the downstream State, Colorado is the upstream State.

The United States intervened in the case after it was filed as Federal agencies physically perform some of the reservoir functions involved in the Kansas claims.

Physically, Colorado diverts ten times as much water as Kansas diverts in this basin.

Colorado normally diverts all of the inflows to the basin at least once, and in most cases many times, before those… the return flows from those diversions reach Kansas.

Kansas depends on those return flows and on the benefits of John Martin Reservoir, which was conducted in the 1940’s about 60 miles above the State line, and whose benefits are apportioned by the compact.

The rights of Kansas under the compact are protected by Article IV-D of the compact which forbids material depletions of the waters of the Arkansas River in usable quantity or availability.

Kansas claims three violations of the compact have occurred.

The special master has agreed with Kansas on its largest claim based on increased post-compact pumping in Colorado.

That violation amounts to some 400,000 to 500,000 acre feet of water.

As the volume of this courtroom is about 3-1/3 acre feet, that amounts to about 140,000 volumes of this courtroom, inside the pillars.

Although the special master approved that–

William H. Rehnquist:

Over what period of time is that?

John B. Draper:

–This is over the study period of 1950 through 1985, Mr. Chief Justice.

The second claim asserted a violation based on the Colorado winter water storage program.

The study period for that claim is 1976 through 1985, a shorter period.

Kansas’ evidence showed a depletion over that period of 40,000 acre feet, or about 12,000 volumes of this courtroom.

The third claim is based on the operations of Trinidad Reservoir on the Purgatoire River, a major tributary of the Arkansas River in Colorado.

The amount of that claim was 11,000 acre feet over a period 1979 through 1984, which amounts to approximately 3,300 volumes of this courtroom.

Kansas has filed three exceptions to the master’s report.

John Paul Stevens:

I’m just curious, when you talk about the courtroom, are you assuming it’s full to the ceiling, or just a foot?

[Laughter]

John B. Draper:

I’m assuming it’s full right to the ceiling, Your Honor.

John Paul Stevens:

I see.

John Paul Stevens:

That’s the first time I’ve seen that comparison before.

[Laughter]

John B. Draper:

The State of Kansas has filed three exceptions.

It has excepted to the denial of the winter water storage program claim and the Trinidad claim by the special master.

Sandra Day O’Connor:

Well, on those two claims, Mr. Draper, the special master concluded, as I understand his report and recommendation, that Kansas just failed to demonstrate adequately those depletions, and if that factual finding is valid, why doesn’t that end the matter on those claims?

John B. Draper:

Your Honor, the two claims are quite different with respect to the answer to your question.

With respect to the Trinidad Reservoir claim, he did dismiss the Kansas case at the end of its evidence for failure of proof, but the reason was that he believed as a matter of law that Kansas had proved the wrong thing.

We proved that Colorado had violated the operating principles adopted by the Arkansas River Compact Administration for the operation of this reservoir.

We believe that the adoption by the compact administration of principles for the operations of the reservoir which were proposed by the United States Bureau of Reclamation set the standard for compliance with respect to that project under the compact.

Sandra Day O’Connor:

Well, presumably the parties to that special operating program can sue in district court to enforce any rights under that separate agreement, isn’t that so?

John B. Draper:

We don’t believe that’s true, Your Honor.

We believe that this is the only forum, certainly the only meaningful forum, in which we can press a claim for violation of the operating principles.

William H. Rehnquist:

But the master found that there was no damage in effect to Kansas because there was no proof that the flow at State line was any different, isn’t that right?

John B. Draper:

We believe, Your Honor, that the State of Kansas received some benefits from the adoption of the operating principles that correspond to the allowance of the project in the first place, which was being held up until–

Well–

John B. Draper:

–Kansas gave its approval.

William H. Rehnquist:

–could you answer my question?

John B. Draper:

The answer is that it is sufficient, in our view, to prove–

William H. Rehnquist:

Well, my question was, didn’t the master find that there was no appreciable change in volume of flow at State line?

John B. Draper:

–He did at least suggest that strongly, Your Honor.

He was looking at evidence which was developed on a study period of 1925 to 1957, however, and not for the operation period that we’re talking about in this case, which is 1979 through 1984.

There is no evidence as to what the effect of the departure from the operating principles was for that period.

William H. Rehnquist:

Well, then… but then if the master is right, and it’s up to Kansas to show some depletion of flow at the State line, Kansas still fails, it seems to me, even if there’s no showing one way or the other, if the burden of proof is on Kansas, and this is Kansas’ lawsuit.

John B. Draper:

Your Honor, the evidence showed that the departure from the operating principles, which we believe is the compliance standard for this project, did cause depletions of waters that otherwise would have gone to Kansas.

The inflows to John Martin Reservoir–

Sandra Day O’Connor:

Well, but now this is what the master said, and I think I have the quote right: Kansas did not attempt to establish that the flows of the Arkansas River at the State line were less than they would have been if the Trinidad project had not been constructed or operated at all.

John B. Draper:

–That is technically correct, Your Honor.

Sandra Day O’Connor:

And Article IV-D of the compact allows developments such as Trinidad, subject only to the proviso that they don’t materially deplete usable flows at the State line.

John B. Draper:

It does not mention the State line, Your Honor, just flows available for use to Kansas users, and during the study period, the inflows to John Martin Reservoir were divided 40 percent and 60 percent between the two States, and delivered to the State line with the help of a trans-loss account to be sure that the flows actually reached Kansas.

This was also the standard that the Bureau of Reclamation used when it devised the operating principles in 1964 and proposed those to the compacting States.

Antonin Scalia:

Well, is it correct, however, that you made no effort to show that in fact it reduced the flow from what it would have been had there been no project at all?

Is that an accurate enough statement?

John B. Draper:

That is an accurate statement, Your Honor.

We show that there was a depletion of flows to Kansas, usable flows to Kansas as a result of the departure from the operating principles.

Ruth Bader Ginsburg:

And the master… you’re not contesting that he said… your theory ultimately was that a violation of the separate operating principles per se constituted a compact violation, and that was a theory that he rejected.

John B. Draper:

That’s correct, Your Honor.

Ruth Bader Ginsburg:

And what was wrong with his observation that there were other remedies, assuming that the operating principles were violated, that there were remedies appropriate to that?

John B. Draper:

We don’t believe that is correct, Your Honor.

We believe that this forum is the only meaningful forum that we have, that the State of Kansas has to enforce the operating principles.

It is basically an interstate dispute, and interstate disputes, whether they’re under a compact or not, must be brought in this forum.

Stephen G. Breyer:

What is the… what do you rely… as I understand it, though I didn’t quite understand your answer to Justice Scalia, that you say that they violated the procedures, these procedures.

John B. Draper:

Yes, Your Honor.

Stephen G. Breyer:

All right, and then the issue… and if they violated the procedures, then they violated the compact.

John B. Draper:

Yes.

Stephen G. Breyer:

But the other side says, you’re right, as long as there was a material depletion of the water available to Kansas, and you think that’s shown automatically by the fact they violated the procedures, and they don’t.

So that’s my understanding of it.

John B. Draper:

That’s correct, Your Honor.

Stephen G. Breyer:

All right.

Now, if that’s correct, then what is it that shows that automatically violating these procedures would violate the compact, without some further showing of what physically happened in terms of availability of water to Kansas?

What is it that shows it automatically?

The best think that I thought you pointed to is this thing about a letter to the Governor of Kansas from Mr. Dugan.

Is that the best thing for you?

John B. Draper:

Yes.

That is the letter that immediately preceded the adoption of the operating principles by the compact administration.

It appears in our brief at page A-85.

Stephen G. Breyer:

The problem I had with that letter, which is what I’m getting to, is it says that if they don’t violate the… if they don’t violate the procedures, they won’t materially deplete the flow.

Isn’t that what it says?

If you don’t violate the procedures… what I have is, the proposed project will not materially deplete the water if it’s operated under the guidelines.

John B. Draper:

That letter indicated that strict compliance with the operating principles–

Stephen G. Breyer:

Would not deplete–

John B. Draper:

–would achieve compliance with the compact.

Stephen G. Breyer:

–Right, but it doesn’t say what will happen if you don’t comply with the procedures.

It leaves it up in the air.

John B. Draper:

Literally, that’s true, Your Honor.

Stephen G. Breyer:

All right, so then if that’s true, then what is it that you have to prove that if you do violate the procedures, that automatically depletes the flow, or at least the parties thereby agreed to that, and I couldn’t find anything in here that said that they did agree to that automatic–

John B. Draper:

Your Honor, we believe that the statement by the Bureau of Reclamation and the operating principles themselves, the mandatory language that is contained in those, in the preamble and in every operative section of the operating principles, indicates that these are intended to be binding in nature, and that they form the standard of compact compliance for that particular project.

Sandra Day O’Connor:

–Well, isn’t Kansas’ suit a suit for violation of the compact?

John B. Draper:

That’s correct.

Sandra Day O’Connor:

The SG takes the position that the compact does not even empower the compact administrators to amend the compact to create a new, enforceable right under the compact.

John B. Draper:

Your Honor, Article VIII-B(2) of the compact, which appears on page 3 of our blue brief, accords the administration… that’s the compact administration… the power to prescribe procedures for the administration of this compact, and by the proviso of that provision, it makes very clear that those are proceedings–

Sandra Day O’Connor:

Yes, but how does VIII-B authorize the compact administrators to establish a compact violation that differs from that set out in Article IV-D?

I mean, that’s what the standard is.

That’s what your suit was brought under.

That’s what the master said Kansas didn’t prove.

I just don’t see how you get where you want to go.

John B. Draper:

–The answer, Your Honor, is that the… there is no difference between compliance with the operating principles and the compact itself with respect to this project.

It was studied by the U.S. Bureau of Reclamation, it was determined what was necessary in order to comply with the compact… this is a reservoir, incidentally, which is 220 miles above the State line, and the compact administration was looking at the question, how do we operate this project on a day-to-day basis?

Do we have the gates of the reservoir open today, or not, or how long do we keep them open?

We have down, or in the compact itself the general proviso that there shall be no depletion of usable flows.

What does that mean in terms of the daily operations, and that’s what the compact administration was adopting here, were the exact daily operations so that the dam tender who is employed by the Federal Government will know when the open the gates and when to close them at this project.

John Paul Stevens:

May I ask, are these violations of the procedures ongoing, or have they been terminated?

John B. Draper:

They have been terminated for the moment by a letter from the Colorado State engineer, the highest water official for domestic water use in Colorado, that until the violations were either determined, or the practices which form the basis for the violations were determined not to be a violation, or the principles were amended, that the reservoir would be so–

John Paul Stevens:

Well, has it not been determined that there were violations, so doesn’t that mean they will cease in the future, then?

John B. Draper:

–I’m sorry?

John Paul Stevens:

There has been a determination, has there not, that there were violations of the procedures, and does it therefore not follow that they will be discontinued in the future?

John B. Draper:

There is an assumption for purposes of the motion to dismiss this claim that the procedures have been violated.

John Paul Stevens:

And also that they’ve been terminated, is that correct?

John B. Draper:

They are terminated for the moment, but that is only by letter of the Colorado State water official, and that letter could be revoked.

Antonin Scalia:

Mr. Draper, what has the practice of the parties been under the agreement?

Has it, in fact, been the Arkansas River Compact Administration that has prescribed procedures for the administration of this project?

John B. Draper:

These are the only operating procedures for this project, Your Honor.

Antonin Scalia:

And are they given authority to prescribe those procedures by some document other than this compact?

John B. Draper:

No, Your Honor.

The compact itself is the basis of that authority.

Antonin Scalia:

The statute that sets up the project does not authorize them to prescribe procedures?

John B. Draper:

The statute that sets up the project requires that the project be operated in compliance with the Arkansas River Compact.

Antonin Scalia:

That’s all it says.

John B. Draper:

That’s correct.

Antonin Scalia:

And in fact, it would seem the parties have behaved as though Article VIII-A and VIII-B does consider these procedures part of the compact.

John B. Draper:

Yes, we believe so.

Kansas agreed to those procedures and required that they be adopted, and gave its approval, which was essential for the funding to construct the project.

Once it got into… was built and began to operate, the State of Colorado immediately stored more water than is allowed under the–

Stephen G. Breyer:

That’s true, that may be true… assume it’s true.

They had procedures, the procedures bind them, it’s all part of a deal, but don’t you have to show that they also agreed that’s part of this deal that if we violate the procedures, that fact in and of itself demonstrates a material depletion?

It’s that part that I thought the special master didn’t agree with you about.

Maybe you did violate the procedures.

Then go work out some deal for that, but have you automatically shown a material depletion without showing what happened physically, and where is the agreement to that, that the violation of the procedures automatically shows a material depletion?

John B. Draper:

–I would suggest, Your Honor, that it is inherent in the principles themselves, and it is–

Stephen G. Breyer:

Is there anything you could read to me that would suggest it was inherent in the principles?

I read that letter… or I mean, I don’t want you to… if something comes immediately to mind, or something.

John B. Draper:

–No.

We base our position on the compact and the preamble and the text of the operating principles themselves, and the precedent–

John Paul Stevens:

But where do you go from that… supposing you’re right, and we agree with you.

What remedy would be appropriate?

Assuming there’s been no material loss of water, what’s the remedy, just stop violating?

John B. Draper:

–The first remedy would be an injunction to discontinue the violation.

John Paul Stevens:

And if the master thought that this letter that says we’re not going to do it any more is sufficient, would you then… do you still want the injunction?

But it’s… the only question is whether you should have an injunction or not.

There’s no… they’re not going to get more water, or anything like that.

John B. Draper:

Well, we have shown that we were deprived of 11,000 acre feet by the failure to abide by the operating principles.

William H. Rehnquist:

If there was no change in the flow at the State line, how do you know there was such a deprivation, and where did it take place?

John B. Draper:

The assumption of your question, Mr. Chief Justice, does not exist.

There is no showing that there was no change at the State line.

William H. Rehnquist:

Well, but there was no showing there was a change at the State line.

John B. Draper:

That’s correct.

There was a showing that water that otherwise would have been available to Kansas users in John Martin Reservoir was depleted by 11,000 acre feet.

John Paul Stevens:

Isn’t what you’re in fact saying that had they followed the procedures, you would have gotten more water than the original compact contemplated?

You sort of didn’t get the full benefit that you’re seeking.

Is that what it boils down to?

John B. Draper:

Well, there is a certain amount of tradeoff that’s inherent in the principles.

There are depletions during certain periods, and you end up with a slight accretion, but there is no indication that Kansas is getting any benefit beyond compliance with the compact by enforcement of the operating principles.

John Paul Stevens:

But you would if you got this 11,500 feet, wouldn’t you?

John B. Draper:

No, Your Honor.

John Paul Stevens:

Then it wouldn’t be a benefit.

John B. Draper:

No, Your Honor.

David H. Souter:

Well, you’re saying that if they had followed the principles there would have been another 11,000 acre feet in the river, it had to go somewhere, and Kansas is where it would have gone, is that what you’re saying?

John B. Draper:

We’re saying–

David H. Souter:

Even though the record is agnostic with respect to measurements at the State line, you’re saying there would have been another 11,000 that went into the river, and it had to go to us, and so therefore we must have lost it.

Is that your argument?

John B. Draper:

–Well, the evidence is that a total of–

David H. Souter:

No, but is that your argument?

John B. Draper:

–That is our argument.

Okay.

John B. Draper:

That water would have come to Kansas.

Antonin Scalia:

And I… as I… but as I understand, the difficulty is it’s 11,000 square feet more than would have been… it’s the difference between complying with the procedures for this reservoir and not complying with the procedures.

John B. Draper:

Yes.

Antonin Scalia:

It’s not the difference between what the flow would have been without the reservoir and complying with the procedures.

John B. Draper:

That’s correct.

Antonin Scalia:

And that’s the nub of the disagreement.

John B. Draper:

That’s correct.

William H. Rehnquist:

It’s also… there’s a stretch of the river below John Martin Reservoir in Colorado.

Couldn’t it just as easily have come from additional pumping there?

John B. Draper:

The water we’re talking about, the 11,000 acre feet, would be routed down the river with extra water added to cover transit losses to arrive at the State line intact.

William H. Rehnquist:

Why does it necessarily follow that if 11,000 acre feet leaves John Martin Reservoir, an additional 11, that 11,000 necessarily shows up at the State line when the river flows in Colorado for a number of miles above the State line, and there surely could have been either pumping or diversion there?

John B. Draper:

Much of what you say, Mr. Chief Justice, is correct.

However, the Kansas deliveries are measured at the State line.

Stephen G. Breyer:

I think what people… am I right that it’s the Trinidad project operating principles, is that right?

John B. Draper:

These are the Trinidad–

Stephen G. Breyer:

Right, and then if the water leaves Trinidad, it goes to the John Martin Reservoir, is that right?

John B. Draper:

–Yes.

Stephen G. Breyer:

All right, so maybe this 11,000 feet, or I don’t know what that number came from, but it would go down to the John Martin Reservoir, and maybe people had enough water anyway in the John Martin Reservoir, so whether they had 11,000 or not 11,000 didn’t make any difference to Kansas in terms of what happened in the past.

I mean, is all this explored in the record?

I had the impression that you were virtually conceding that the issue is whether or not these operating principles automatically show a violation thereof is a violation of the compact.

John B. Draper:

That is essentially correct, Your Honor, and those flows are flows into John Martin Reservoir which typically empties every season.

It’s not a large pool of water that’s sitting there year after year.

It typically empties within a few weeks at the beginning of the irrigation season, except under very unusual circumstances.

David H. Souter:

Then you don’t depend on the argument that you said was your argument in response to my question?

John B. Draper:

If you could–

David H. Souter:

Technically, you don’t care, for the sake of the argument, what happened to the 11,000 gallons.

What you care about is the proposition that if the principles are violated, that, as a matter of law, is tantamount to a measurable depletion.

That’s what you really care about.

John B. Draper:

–That is the nub of our argument.

Yes.

John B. Draper:

Yes.

Ruth Bader Ginsburg:

Thank you.

And do you take issue with the special master’s example that if the operating principles are followed meticulously and nonetheless there is a substantial depletion, there is nothing that Kansas can complain about?

John B. Draper:

We take issue with that, Your Honor.

That is for a different period, 1925 to 1957.

This project did not exist then.

Our claim is based on actual operations, 1979 through 1984.

John B. Draper:

Thank you.

William H. Rehnquist:

Thank you, Mr. Draper.

Mr. Robbins, we’ll hear from you.

David W. Robbins:

Mr. Chief Justice, and may it please the Court:

Colorado similarly supports the master’s report, but has taken four exceptions to the report.

I would first like to address some comments to the Court concerning the Kansas argument.

I wish to make it clear that the master did not make a finding on the amount of actionable depletion as to the post compact wells in Colorado.

Counsel’s description of the amounts of depletion when he was discussing how full the courtroom might be, or how many times it might fill, were strictly Kansas’ allegations at the close of the evidence in this case.

Second, with regard to Trinidad, Kansas sought to use Article IV-D to show a material depletion.

However, it admittedly did not show that there was a material depletion to State line flows.

Remember, Article IV-D is designed to permit additional beneficial development in both States of the unused water, and it is Colorado’s position, and it was the master’s determination, that Kansas had to show that there was, in fact, a material depletion to the water that would otherwise be available to Kansas.

Simply showing that operating principles had been violated… and I wish to point out, operating principles that were negotiated not between the State of Colorado and the State of Kansas but between the Purgatoire River Water Conservancy District, a governmental entity within Colorado, the Bureau of Reclamation, and the State of Kansas, principles which were then subsequently submitted to the administration for their imprimatur, or approval.

David H. Souter:

May I ask you a question about definition, and it didn’t occur to me that I had this question before, but when you speak… when you use the term, material depletion, does that term refer solely to volume of water, without any reference to the capacity of the recipient of that water to use it beneficially?

David W. Robbins:

There are two… there are… if I may, there are two concepts that are important here.

The first one is material depletion, which refers to a depletion as a volume of water.

Okay.

David W. Robbins:

The compact negotiators in the compact negotiations discuss this, and they wanted to be sure that a change in Colorado that was not terribly significant did not trigger litigation.

David H. Souter:

But that’s merely a change in acre feet.

David W. Robbins:

That’s correct.

Yes.

David W. Robbins:

It was a… what they were concerned about was, if you simply use the term, depletion, Kansas and Colorado might be here every year arguing about some small glitch, and you must remember that this is a river that has average… that has flow conditions that on the average are a number of, you know, 600,000 or 800,000 acre feet, but rise into the millions and drop into the 200,000 and 300,000 each year, so you have this huge variability in the system, and they didn’t want us here all the time arguing about little numbers, so material depletion was intended to cover that.

Secondly, there is the concept of usability.

It was important to the framers of the compact that waters be usable in each of the States if there was to be a call, or if there was going to be a demand on John Martin Reservoir.

The idea was that there was water, as the compact was negotiated, passing Garden City, Kansas, unused, and they wanted to be certain that that water was developable in each State.

They didn’t want to have a situation where Kansas was making insistence upon Colorado for water when in fact they had supplies within Kansas passing unusable out of the area covered by the compact.

The procedures… I want to make it clear, the procedures that were approved, that were included within this agreement among the district, the Bureau, and Kansas, approved by the compact, not pursuant to rules and regs authority inherent in the compact but simply approved as a resolution, those procedures did not prescribe daily operation for Trinidad Reservoir.

They were based upon Bureau of Reclamation studies that dealt with averages.

The State engineer of Colorado did, in fact, terminate by order the aggrieved use of the operating principles, the allegation that those principles weren’t being followed.

That order is in effect today.

There is absolutely no reason to assume that it will not remain in effect.

David W. Robbins:

Colorado is not in the business of seeking to violate its agreements.

Next.

In response to Justice Scalia, the parties did not treat the procedures as being part of the compact.

In fact, as far as the State of Colorado was concerned, they were in agreement among three parties that it was brought to the compact in Colorado because Kansas requested approval by the Commission, voted aye that those procedures should, in fact, be approved by the compact and utilized.

David H. Souter:

Where do you go to enforce them?

David W. Robbins:

My judgment would be that you would go to enforce them in the district court, bringing in the parties to the agreement, namely, the Purgatoire district, the Bureau, and the entities which are, in fact, operating the project.

No–

David W. Robbins:

They also joined the Colorado State engineer, who was the appropriate water official.

Antonin Scalia:

–But no… you have no administrative appeal.

You go right to the court.

David W. Robbins:

That would be my interpretation.

That’s correct, sir.

There’s no administrative agency that really is involved in this.

You have a Federal agency that built and manages the project, you have a Colorado entity, the district, whose water rights were the rights, the interests that were brought into the reservoir that are being managed, you have the State of Kansas, that sought the operating principles–

Antonin Scalia:

The compact administration, as I understand you, simply approved these procedures at the outset and has had nothing more to do with them.

David W. Robbins:

–Well, the compact administration received a complaint from Kansas under Article VIII-H, which was the investigation section of the compact, seeking to obtain an investigation by the administration of those procedures, and that investigation was, in fact, approved.

Antonin Scalia:

Well, that’s sort of inconsistent with saying that they’re out of the picture.

They not only approved the procedures at the outset, but they have been exercising some supervisory authority over the implementation of those procedures, is what you’re telling me.

David W. Robbins:

Mr. Justice Scalia, I jumped over myself.

There is an administrative procedure before the compact.

However, if you had been dissatisfied with how those procedures were operated, you were entitled, in my opinion, to take the matter to a district court.

Antonin Scalia:

I understand, but what’s the authority of the administration to do anything with regard to those procedures?

Where do they get any authority?

Why do people go to them at all?

David W. Robbins:

They’ve no authority to do anything about the procedures unless it is there… unless they find that there is a material depletion, and their authority comes in through material depletion, not through those operating principles.

Antonin Scalia:

So if somebody says it’s being operated out of compliance with the procedures, you don’t go the administration.

David W. Robbins:

I do not believe that the administration has authority to order the change in those procedures.

John Paul Stevens:

Even if you’re right that they could go to the district court, assuming that there was an ongoing violation, why couldn’t that be addressed in an original jurisdiction case?

I don’t quite understand why it can’t be.

David W. Robbins:

Well, the parties to the agreement, one of the major parties to the agreement is not here before you, and that’s the Purgatoire district, one of the entities that gave up its members, agreed to the subordination or use of its water rights within this, pool and made that agreement in part through these operating principles.

John Paul Stevens:

But the violation, if they’re right, is one committed by Colorado, isn’t it?

David W. Robbins:

The violation needs to be a material depletion under Article IV-D.

I do not want the Court to assume for one minute that simply by not… you have to wrap these procedures, Mr. Justice Stevens, into the compact.

They don’t just–

John Paul Stevens:

I understand.

Let’s assume there’s no violation of IV-D, would you, but assume there is a violation of VIII-B.

They set out procedures and all the rest.

You’re saying they have no remedy in this proceeding, even if they were… that you just said… you told us Colorado doesn’t disobey its, or violate its promise.

Supposing Colorado took a position, there’s nothing you can do about it.

We’re going to follow our own procedures and forget about what we’ve agreed to.

You’d say there’d be no remedy in this proceeding.

David W. Robbins:

–Had those procedures been adopted pursuant to VIII-B, you’re exactly correct, Your Honor.

John Paul Stevens:

But they were not adopted pursuant to the agreement between the two States?

David W. Robbins:

They were simply approved by the two States.

They were not adopted pursuant to an agreement by the two States.

The principles were adopted by the Purgatoire District, the Bureau, and the State of Kansas.

David H. Souter:

If they had been adopted by the States, would it be operative without ratification by Congress?

Would it have taken separate ratification if it was a State agreement?

David W. Robbins:

If the purpose was to modify the way in which the compact’s no material depletion standard was applied, yes, it would.

I’d like to move on, if I might, to Colorado’s exception, which involves the defense of laches.

Colorado does not argue, and I want to make this clear, that Kansas should be estopped from obtaining prospective relief under the Arkansas compact.

However, Colorado believes that this Court should consider laches for any well-pumping occurred… that occurred prior to 1985.

In response to the position stated in the Kansas–

William H. Rehnquist:

What’s the difference there, Mr. Robbins?

What sort of relief might the master give if he didn’t apply laches to the well-pumping that occurred before 1985?

David W. Robbins:

–As far as prospective relief, Your Honor?

William H. Rehnquist:

No.

So what is the kind of relief you think should be barred by laches?

David W. Robbins:

Damages in money or water for past… any past depletions that are found to violate usable flow, and I want to make it clear, the master did not find a quantity of water.

He simply said that from all of the evidence he believed that there was, in fact, a violation of Article IV-D of the compact based upon first compact well-pumping in Colorado.

David W. Robbins:

He did not quantify that amount.

That is left for a subsequent phase of this proceeding.

Antonin Scalia:

You would say that any wells that went up with knowledge of Kansas can be closed down.

That’s future relief, right?

David W. Robbins:

Prospectively?

Antonin Scalia:

Yes.

David W. Robbins:

Well, I think the prospective relief would have to wait, but that would be one facet of the relief.

Kansas is entitled to one–

Antonin Scalia:

You don’t think laches would extend to that?

David W. Robbins:

–Well, laches would cover past relief.

We are not arguing for estoppel, which would seek to prevent Kansas from enforcing the compact in the future based upon their acquiescence in the past activity.

We’re simply–

Antonin Scalia:

This is new to me.

I’ve never heard that laches is limited that way.

I would normally think that when somebody has done something for a long time and you haven’t made any complaint about it… is that the normal operation of laches, that it operates only as to past damages, not as to future?

David W. Robbins:

–I believe that there are cases, Your Honor, that are in the patent area in particular where that is exactly how laches is applied, and there is the analysis in those cases… they are cited in our brief… in which a patent holder fails to enforce his patent over a period of time, then identifies the problem, and very often, in at least the Circuit Court decisions, there is language to the effect that the enforcement can occur prospectively, but as to claims for damages or recovery for past activities, they are barred.

Antonin Scalia:

And even if I have built up a whole business upon that misuse of the patent, which is a very small part of my entire business, but nonetheless essential to it, in the future I’d have to close down the business.

David W. Robbins:

It depends–

Is that the way it works?

I don’t–

David W. Robbins:

–on the facts of the case.

Now, the point I’d like to make with regard to the Kansas position is that in its reply brief to the Court at pages 8, and again at 19, it states that it had no knowledge or reason to know, before 1984, that pumping in Colorado was violating the terms of the compact, and I would… however, I would direct the Court to an earlier position taken by Kansas.

I refer to the March 4, 1986 reply brief filed by Kansas with this Court in support of the bill of complaint at page 10, and I would like to quote:

“The implication Colorado offers the Court is that Kansas has sat on its hands, idly watching the State line flows decline over the years. “

“The actual history is quite the contrary. “

“As early as its meeting on December 11, 1956, the administration held considerable discussion concerning the activity of well-drilling and its effect on conditions. “

“Since then, well depletion has been discussed, both formally and informally, at numerous meetings of the compact administration. “

William H. Rehnquist:

–This is a witness?

David W. Robbins:

No, sir, this is a statement of counsel in the brief supporting the bill of complaint in this case.

William H. Rehnquist:

Well, the master canvassed all these facts, the arguments pro and con about inexcusable delay on the part of Kansas, and found against Colorado on that, did he not?

David W. Robbins:

The master… yes.

The master found–

William H. Rehnquist:

So why should we overturn that finding?

David W. Robbins:

–The master acknowledged that laches was an appropriate remedy in proceedings of this sort.

Kansas introduced no evidence to suggest why the delay occurred.

They relied solely upon the position that laches did not apply to a sovereign, period.

The master in part speculated that Kansas was relying upon Colorado’s efforts, which are replete in the record, to deal with the issue of well-pumping depletion, but there is no evidence to that effect.

It is just that, speculation, because Kansas did not introduce any evidence at all.

Stephen G. Breyer:

But there is also, you have… to prevail on laches you have to show you’re prejudiced and there, I take it, there was evidence, and the master went through it, and he said, well, even if Kansas should have complained sooner, it didn’t hurt Colorado, because Colorado would have had to collect, I guess, this data of what was being pumped out of wells very early, years and years and years ago, and you’d have to speculate that if they had complained sooner, Colorado would, in fact, have collected this data sooner, and I can’t tell, says the master, and I don’t find any prejudice.

So there was a finding on that prejudice part–

David W. Robbins:

Justice Breyer–

–and evidence.

David W. Robbins:

–that is correct, but the master’s finding is again based upon speculation, because–

Stephen G. Breyer:

No, he said you’d have to speculate in order to support you.

He has… he lists the two witnesses who died, he lists the hydrological survey, he lists all kinds of stuff.

Didn’t sound like speculation.

David W. Robbins:

–He says Colorado would not have collected the data… would not have collected the data had it been given the opportunity to do so.

Stephen G. Breyer:

He said it’s highly speculative that they would have done.

David W. Robbins:

That’s correct, but that flies in the face of all of the studies that were done in the State of Colorado during this period seeking to collect that very sort of data, and it suggests, without any opportunity for Colorado to respond, suggests that somehow Colorado would not have intensified its efforts to collect data if it knew it was on the griddle, but Colorado didn’t know it was on the griddle.

Kansas knew throughout this period, as the two witnesses, one Kansas and one Colorado, suggest.

One Kansas witness said in 1956 I was sent into Colorado to look at wells because of depletions in State line flows for the… counsel says, we operated, throughout this period we were continually talking about this problem but no complaint was filed.

The master says that he speculates that Colorado wouldn’t have done it anyway, but the facts to my mind suggest quite to the contrary.

The State of Colorado consistently worked with the GS throughout this period trying to get a handle on this very problem, and there’s no reason to speculate that if the State in this compact had said, we wish an investigation under the compact into the impacts of wells, that it would not have redoubled its efforts.

Without that complaint, it was already trying to do that.

So in our view you have the State of Kansas at the commencement of this proceeding acknowledging that it knew and that it talked about this issue as it went along.

It also acknowledged in its reply brief that it in fact did nothing until 1984-1985 about it.

So you have, by Kansas, admissions on both of the important issues here, and the next issue is only prejudice, and to our view, the fact that we lost the opportunity to inquire of the USGS person who did the important study in the 1960’s and who came up with the estimates of 1940 pumping, which had an adverse consequence to us when it came time to deal with post compact or precompact pumping.

We weren’t able to defend ourselves in that regard because we couldn’t get an explanation of how the 1940 through 1949 numbers were derived.

We were unable to get power coefficients or power records.

All of the witnesses in the case, Kansas and Colorado and the United States, acknowledge that in these early periods there was effectively no hard data.

Sandra Day O’Connor:

Mr. Robbins, does Colorado concede that although it isn’t quantified, there has been some material depletion of usable State line flows as a result of groundwater depletion?

David W. Robbins:

Colorado’s witnesses, Justice O’Connor, said that–

Sandra Day O’Connor:

I think you could say yes or no.

David W. Robbins:

–Yes, ma’am.

Thank you.

David W. Robbins:

The answer is yes.

Now, I’d like to explain that Colorado has conceded that there were reductions in State line flow, but I want to go back to my response about usable flow.

My answer, yes, is qualified that we have not had a quantification of depletion to usable State line flow, which is–

David H. Souter:

But does that go to the violation or simply to damages?

Isn’t there a violation if there is, in fact, a material depletion?

There may be no damage remedy unless there is a further showing that usable… that the usable quantities were reduced, too, isn’t that correct?

David W. Robbins:

–That’s not correct–

Okay.

David W. Robbins:

–in my interpretation, Justice Souter.

I believe that the violation is a material depletion to usable flows, because excess flows could be fully depleted in one State or the other without there being a violation.

David H. Souter:

Well then, I want to get this straight.

I misunderstood your earlier answer, because I thought your earlier answer was that material depletion referred simply to quantity, not to usable quantity, and I think you’re now saying the opposite, and I want to know which it is.

David W. Robbins:

I… what I tried to do earlier–

David H. Souter:

You were too subtle for me.

Help me out.

[Laughter]

David W. Robbins:

–Material depletion relates to depletions to usable flow, and I tried to explain the two concepts.

David H. Souter:

Okay.

So it’s not just quantity.

David W. Robbins:

That’s correct.

It’s quantity… it’s depletion to usable quantity.

William H. Rehnquist:

Thank you, Mr. Robbins.

David W. Robbins:

Thank you, Mr. Chief Justice.

William H. Rehnquist:

Mr. Minear.

Jeffrey P. Minear:

Thank you, Mr. Chief Justice, and may it please the Court:

Jeffrey P. Minear:

I would like to address the issues in the order that they are presented in our brief.

First, the master correctly resolved the Trinidad claim.

Kansas has predicated that claim on the theory that Trinidad operations have breached the compact, but the only relevant limitation that the compact imposes on new projects like Trinidad is that they cannot materially deplete usable flows.

Kansas has made no showing that Trinidad has had that effect.

Instead, Kansas has attempted to show that Colorado has allowed a local irrigation district to violate reservoir operating principles, but those operating principles are not a part of the compact, and hence their violation cannot establish a violation of the compact.

Simply put, Kansas cannot predicate its compact action based on conduct that the compact does not forbid.

David H. Souter:

Do you agree–

–Now–

–that all of this can be litigated in the district court if somebody wants to litigate it?

Jeffrey P. Minear:

We believe an action could conceivably be brought based on the operating principles in another forum.

Whether it would be the district court or a State court would depend on the parties that are bringing the suit.

Antonin Scalia:

Brought by the State?

Jeffrey P. Minear:

The State has a problem here.

I do think that the State’s best argument here is a compact violation based on a material depletion of the usable flows.

If there’s been no material depletion of usable flows, they’re going to encounter a standing objection wherever they raise the claim later on.

Sandra Day O’Connor:

The operating principles, were they because of the approval of them by the compact administrators?

Did that become a rule and regulation of the compact administration?

Jeffrey P. Minear:

We agree with the special master it did not.

The special master canvassed the records and he concluded that there was no showing that the parties, or the compact administration itself, viewed this as a regulation of the compact.

Instead, what had happened here was the Bureau of Reclamation had formulated these operating principles in anticipation of the completion of construction of the Trinidad project.

They circulated the operating principles to interested parties to see if they agreed with the operating principles.

The compact administration was included among those parties that they consulted, but that was simply a consultation method… measure, and nothing more.

The master also correctly concluded that Kansas had failed to prove its winter water storage claim.

The master carefully examined the evidence, he discerned numerous serious problems with the Kansas water model, and he concluded that Kansas had failed to show that the winter water storage program had caused material State line depletions.

The record fully supports that conclusion.

Kansas seeks to overcome the master’s finding by arguing that Colorado should bear the burden of disproving Kansas’ allegations.

That argument, however, is inconsistent with the Hornbook rule that the plaintiff, the party that seeks to alter the status quo, bears the risk of nonpersuasion.

Sandra Day O’Connor:

What is Kansas’ burden of proof here?

Is it by clear and convincing evidence, or by a preponderance–

Jeffrey P. Minear:

It would be our view–

Sandra Day O’Connor:

–of the compact violation?

Jeffrey P. Minear:

–It is our view that it would make sense to employ the clear and convincing standard in this situation.

The reason we reach that conclusion is because this Court has recognized that the clear and convincing standard applies in actions between the States in other interstate disputes, most frequently in actual apportionment measures, and the factors that lead to the application of the clear and convincing standard, namely the sensitive nature of litigation between States, and also the disruptive effect of disturbing settled water uses, both call for a clear and convincing standard to make sure that there is not a mistake.

Sandra Day O’Connor:

Although we have suggested that a preponderance standard is appropriate for violations of a decree, is it?

Jeffrey P. Minear:

I think that the Court… this… I think you’re speaking to the 1993 decision in Nebraska v. Wyoming, and in that case the Court noted that a party does not need to prove injury in order to enforce a decree.

You need only show that there was a violation of the decree itself, but the Court did not speak to the question of the burden of proof, or the standard of proof in that situation.

David H. Souter:

Well, do you take the position that the standard of proof would be clear and convincing even when there has been a decree and the issue is whether it’s been violated?

Jeffrey P. Minear:

We take the position that it should be the same, because otherwise you’re going to encounter difficulties in litigating–

Well, why–

Jeffrey P. Minear:

–these cases and determining which standard would apply.

Often–

David H. Souter:

–No, but isn’t… is that going to be a difficult question?

I mean, I understand the argument.

I guess I agree with it with respect to the burden of proof prior to the establishment of a… of liability, but after there has been a decree, the truth is the sovereignty of the State or States, in fact, bound by the decree has already been compromised.

I mean, they have already, subject to this higher burden, been made subject to the jurisdiction of a court and a degree entered, and once the sovereignty is no longer pristine, if you will, why should the burden of proof be different from what it would be for any normal litigant who has lost and who is charged with having violated a decree?

Jeffrey P. Minear:

–Again, we’re looking to what the Court’s precedents say, and the other factor that the Court looked at was the disruptive effect of disrupting settled water uses.

David H. Souter:

Yes, but the disruption theoretically has occurred by the decree.

The only question is the enforcement of the decree, and it seems to me that that does not implicate the same sort of disruption in settled usage.

The assumption is a different one, that the usage ought to be according to the decree.

Jeffrey P. Minear:

Well, I respectfully disagree with that, because the problem here is really one of the question of the level of confidence you have with respect to the factual findings that are made, and this case nicely illustrates that.

The Kansas model here had numerous serious problems.

There’s no doubt that everyone was concerned through the course of travel about the accuracy of its predictions, and nevertheless, the results of relying on that model could be very serious for the State of Colorado.

Antonin Scalia:

Oh, but that doesn’t have to do with the burden of proof.

I mean, if a study is not reliable, it’s not reliable.

Jeffrey P. Minear:

Well, this does go to the standard of proof, though, whether or not, to what degree of confidence the Court has in its staff findings.

David H. Souter:

No, I… you’re that there is certain evidence which does not carry with it a high probative value, and it seems to me you can make out a perfectly good case for that, whether you’re talking about a preponderance standard or a clear and convincing standard.

You’re saying, this isn’t good enough to get you across the line for preponderance.

Just because you have an overall preponderance standard, I don’t think it means that you let in a study if, you know, its 51 percent chance is that it’s accurate.

Jeffrey P. Minear:

Well, that–

Antonin Scalia:

I mean, the overall case is a preponderance standard, but each individual item of evidence, including whether you’ve showed, you know, a particular study is valid or not, you don’t let it in if the chances are 51-49 that it’s valid.

Jeffrey P. Minear:

–Well, I think as the Court said in Colorado v. New Mexico that the question of the standard of proof does go to the level of confidence the Court brings to bear–

To the whole case.

Jeffrey P. Minear:

–with respect to the whole case.

To the whole–

Antonin Scalia:

To the whole case, and why should we favor downs… upstream States all the time?

I mean, that’s what happens with adopting something other than a preponderance standard.

Jeffrey P. Minear:

–Why would this case settle–

Antonin Scalia:

So long as you’re upstream, the downstream State has to show, you know, beyond a reasonable… let’s use beyond a reasonable doubt.

Jeffrey P. Minear:

–In fact in the Colorado v. New Mexico case, it was just the opposite.

It was the upstream State that was burdened by the clear and convincing standard.

It was Colorado with respect to the Navajo River that was burdened in that case.

That’s very rare.

Jeffrey P. Minear:

But in any event, I think that the question here really is a question of consistency, whether or not you think the clear and convincing standard, one single standard should apply when there are actions between the States, or whether you wish to switch back and forth between the standards.

David H. Souter:

Let me ask you a different question, if I may.

If we assume for the sake of argument that once there has been a decree the burden of proof for someone claiming a violation is a preponderance, not clear and convincing… we’re going to make that distinction.

Clear and convincing in order to get a decree.

After a decree, proof of violation may be made by a preponderance.

Assuming that, would it make good consistent sense to say, preponderance should also be the standard when there is a claim of violation of a compact?

Jeffrey P. Minear:

I would think that the enforcement… the principle that you apply to the enforcement of a decree should apply to the enforcement of the compact as well.

Those two… the compact operates very similar to a decree in terms of–

William H. Rehnquist:

Well, we really don’t have to decide this question of the burden of proof in this case, do we?

Jeffrey P. Minear:

–That is absolutely right.

The special master noted that the… under any standard of proof his conclusions would have been the same.

Ruth Bader Ginsburg:

You say ultimately this question of burden of proof, clear and convincing, preponderance, is academic, but that is not so, as I understand it, of your position on laches.

You are supporting Colorado on that.

Jeffrey P. Minear:

We are not actually supporting Colorado directly on laches.

We have simply made the observation that this Court in the past has taken into account equitable considerations such as laches, waiver, and acquiescence, in resolving claims.

Ruth Bader Ginsburg:

Would you say the same would apply against the United States?

Here you are saying yes, it can apply against a State.

Jeffrey P. Minear:

We would say that the different principles have been recognized with respect to litigation involving the United States.

Jeffrey P. Minear:

Generally, laches has not been recognized in suits between a private party against the United States, because of the nature of a private sovereign dispute.

Here, where you have a dispute where there are sovereigns on each side, the Court has shown a willingness to consider laches and acquiescence and those such factors at least as respect to the remedy that would be provided.

Antonin Scalia:

And there is such a doctrine in international law, isn’t there, in public international law?

Jeffrey P. Minear:

I believe that is correct.

I believe the special master cited to that.

Ruth Bader Ginsburg:

But now you’ve made an important qualification, at least as to remedy.

It may not preclude a claim, but it may affect the character of the remedy.

Jeffrey P. Minear:

Yes.

Our belief is that it would not foreclose a claim completely, but nevertheless, it would affect the remedy that would be involved.

William H. Rehnquist:

Thank you, Mr. Minear.

Mr. Draper, you have 5 minutes remaining.

John B. Draper:

Thank you, Mr. Chief Justice.

I’d like to respond to the United States initially.

With respect to the winter water storage program claim, I believe that there is some confusion here as to the appropriate question that the Court needs to address, and that is, while there may be dispute about the quantification of the depletions of usable flow caused by the Colorado winter water storage program, we would assert for your review that there is no meaningful dispute with regard to the existence of depletions.

We showed 40,000 acre feet of depletions of usable flow.

Colorado did not take it to the usable ultimate answer, but when it analyzed the 27 years of our general study period in which the program didn’t operate, it still found depletions.

In addition, their expert took our model and made modifications, made it better for him.

He still said it wasn’t what he would do, but he could not make those depletions go away.

It’s a very robust result as to whether there are depletions or not, and before you now is not what is the exact quantification of those usable depletions, but whether there has been a violation of Article IV-D at all.

David H. Souter:

What’s the utility of recognizing a… let’s say a proof of vague violation when it’s simply going to lead to damages and the vagueness there is going to preclude a reliable damage remedy?

John B. Draper:

Because there are both retrospective and prospective remedies potentially available, and the prospective remedy is very important to the State of Kansas.

With respect to the burden of proof, we believe that by relatively clear implication the Court in Nebraska v. Wyoming has indicated that the appropriate burden is preponderance of the evidence.

We believe that if you tilt the playing field by adopting a clear and convincing standard for enforcing compact rights, that you are favoring the defendant State, which in most cases will be the upstream State.

With respect to Mr. Robbins’ comments on the Trinidad operating principles, that they were not adopted under VIII, Article VIII-B of the compact, we would assert that they are just exactly the kind of procedures that are laid out in Article VIII-B(2), and that it is very clear that the compact administration was acting in compliance with that provision.

He also asserted that there was no agreement between the States.

On the contrary, when this interstate compact entity makes a decision, it is an agreement between the States pursuant to the terms of the compact.

We believe also that the Court’s ruling in Texas v. New Mexico in 1983 is very instructive with respect to the utility of observing and honoring and giving effect to operating procedures such as those that were adopted for the Trinidad project.

It would save this Court from micromanaging the operation of Trinidad Reservoir as to when those gates should be open and when they shouldn’t, it would solve other problems that are before the Court on these exceptions such as burden of proof, the question of laches.

It’s immediately clear when someone fails to follow a procedure.

There is a baseline conduct that is agreed to, and where it has been approved by it, even proposed by the United States, the owner of the project, we believe that it makes good sense to honor that set of procedures.

John B. Draper:

I would simply point out with respect to the laches argument that Mr. Robbins made that Colorado does have the burden of proof on its affirmative defense and that the key difference which the special master recognized in his report is the type of knowledge that they are accusing Kansas of having, and the knowledge has to be of a compact violation or sufficient to lead to an investigation of the existence of a compact violation, and not simply the existence of wells upstream.

That is a much more complicated and less direct piece of knowledge, and the assertion over the years in the reports that Mr. Robbins has referred to was that the primary if not only effect of pumping in Colorado was on the downstream surface diverters who had less water to divert in their canals.

Thank you.

William H. Rehnquist:

Thank you, Mr. Draper.

The case is submitted.