Kansas v. Colorado

LOCATION: Port of Valdez

DECIDED BY: Roberts Court (2006-2009)

CITATION: 556 US 98 (2009)
ARGUED: Dec 01, 2008
DECIDED: Mar 09, 2009

Steve N. Six - on behalf of the plaintiff
John W. Suthers - on behalf of the defendant

Facts of the case

This case represents another chapter in the longstanding dispute between the two states concerning water rights to the Arkansas River. The states had created the Arkansas River Compact in 1943 in order to allocate portions of the river between them. In 1985, Kansas brought suit before the Court alleging that Colorado had breached the agreement. The Court appointed a "Special Master" to investigate the allegations and to make recommendations to the Court. The Special Master submitted his report in 1994, finding that Colorado had indeed violated the Compact.

Since 1994, the Special Master has issued three more reports. These reports have been accompanied by several objections by both states. The Court has dismissed the majority of these objections. The question presently before the Court is whether or not to overrule two of Kansas' objections to the most recent report of the Special Master.


Should expert witness attendance fees available in cases brought before the Supreme Court be the same as those available in the federal district courts?

Media for Kansas v. Colorado

Audio Transcription for Oral Argument - December 01, 2008 in Kansas v. Colorado

Audio Transcription for Opinion Announcement - March 09, 2009 in Kansas v. Colorado

John G. Roberts, Jr.:

Justice Alito has our opinion this morning in case No. 105 on the Original docket, Kansas versus Colorado.

Samuel A. Alito, Jr.:

This is an original action between the states of Kansas and Colorado concerning the Arkansas River, and the matter now before us concerns Kansas' exception to the Special Master's Fifth and Final Report.

Kansas is the prevailing party in this case for the purpose of awarding costs.

And the issue before us relates to Kansas' application to recover its expert witness fees as costs.

The Special Master concluded that 28 U.S.C. Section 1821(b) which sets the witness attendance fee for a proceeding in any court of the United States at $40 per day applies to cases within this Court's original jurisdiction.

Kansas argues that this provision was not meant to apply to cases within our original jurisdiction, and that, in any event Congress lacks the authority to set the fees that are recoverable in such cases.

We assume for the sake of argument that 28 U.S.C. Section 1821(b) is not controlling, and that the question of expert fees in original cases is left entirely to our discretion.

We nevertheless hold that the amount prescribed by that statutory provision is the appropriate amount in this case.

We see no good reason why the rule for recovering expert witness fees should differ markedly depending on whether a case is originally brought in one of the District Courts or in this Court.

It is our view that the best approach is to have a uniform rule concerning witness attendance fees that applies in all federal cases.

For the reasons set out in our opinion we therefore overrule Kansas' exception and approved the entry of the proposed judgment and decree. The judgment of the Court is unanimous.

The Chief Justice has filed a concurring opinion in which Justice Souter has joined.