Kansas v. Colorado

LOCATION: Medical University of South Carolina

DECIDED BY: Rehnquist Court (1986-2005)

CITATION: 533 US 1 (2001)
ARGUED: Mar 19, 2001
DECIDED: Jun 11, 2001

David W. Robbins - on behalf of the Defendant
John B. Draper - on behalf of the Plaintiff
Jeffrey P. Minear - on behalf of the United States, as Intervenor

Facts of the case

In 1949, Congress approved the Arkansas River Compact. Article IV-D provided that future development of the river basin could not materially deplete the usable quantity or availability to other users of the river's waters. In 1986, Kansas filed suit alleging that Colorado had violated the Compact. Ultimately, the Special Master found that post-Compact increases in groundwater well pumping in Colorado had materially depleted the waters in violation of Article IV-D. The Special Master, in his second report, recommended that damages be awarded to Kansas. In his third report, the Special Master recommended that such damages be measured by Kansas' losses attributable to Compact violations since 1950, be paid in money not water, and include prejudgment interest from 1969 to the date of judgment. Colorado filed four objections to the third report, Kansas filed one, and the United States submitted that all objections should be overruled.


Does the Eleventh Amendment preclude the recommended award of damages based on losses sustained by individual water users in Kansas? Should the damages include prejudgment interest? Is the amount of interest excessive? Should the prejudgment interest be paid from 1950 rather than 1969? Did the Special Master improperly calculate the value of the crop losses attributable to the Compact violations?

Media for Kansas v. Colorado

Audio Transcription for Oral Argument - March 19, 2001 in Kansas v. Colorado

William H. Rehnquist:

We'll hear argument now in Number 105 Original, the State of Kansas v. the State of Colorado.

Mr. Draper.

John B. Draper:

Mr. Chief Justice, thank you, and may it please the8 Court:

The parties are here on exceptions to the third report in this case.

After the Court determined that the State of Colorado had violated the Arkansas River Compact in 1995, the case was returned to the Special Master for further proceedings.

Subsequently, the Special Master determined that Colorado had violated the Arkansas River Compact in every year from the inception of their compact to the date of filing of this case in 1985.

He further determined that, since the filing of the lawsuit, that Colorado has continued to violate the compact in every year through 1996, except for 1987.

Colorado does not challenge those determinations.

Each of those determinations is in the unit of acre feet.

Altogether, for the period 1950 through 1994, the period at issue here for the remedy, he determined that approximately 420,000 acre feet of water had been depleted from the Arkansas River by Colorado and its water users in violation of the compact.

That amount of water is about 125,000 times the size of this courtroom, or a column the size of this courtroom extending upward about 1,000 miles.

He has determined that the proper remedy for these losses, which are both past and future, because of the lingering effects of the violations by Colorado, should be compensated in money rather than in water.

At the end of trial, Kansas had determined that its losses were $62 million.

Colorado's corresponding number was $9 million.

The Special Master recognized losses that we calculate to be approximately $57 million.

However, the Special Master was persuaded by Colorado not to accord Kansas full compensation for its losses.

He reduced it further by denying part of the prejudgment interest that had been quantified by Kansas at trial.

Sandra Day O'Connor:

Why should any prejudgment interest be awarded as between States?

I mean, this is based on a compact, isn't it, this lawsuit?

John B. Draper:

This is based on the compact, yes, Your Honor.

Sandra Day O'Connor:

And is there any provision in the compact for the provision of prejudgment interest?

John B. Draper:

No, there is no specific provision on prejudgment interest, nor is there any provision specifically addressing the remedy, just as there was no provision in the Pecos River Compact, which this Court--

Sandra Day O'Connor:

Well, the common law rule, I assume, is that you don't award prejudgment interest for unliquidated damages.

John B. Draper:

--That is the traditional rule, Your Honor, but it is a largely discredited rule at this point in history, and the Court has recognized that most recently--

Sandra Day O'Connor:

Oh, but as between State sovereigns, I mean, who is going to pay the bill in Colorado?

It's the taxpayers, isn't it?

John B. Draper:

--It's the State of Colorado.

They are the signatory--

Sandra Day O'Connor:

The taxpayers of the State of Colorado will end up footing the bill, and it just seems odd to me that we would all of a sudden craft some rule allowing prejudgment interest against a sovereign State.

I mean, the States presumably had ample opportunity to negotiate at the time of the compact for the kinds of things that should go into a damages award in the event of a breach.