Nebraska v. Wyoming – Oral Argument – January 13, 1993

Media for Nebraska v. Wyoming

Audio Transcription for Opinion Announcement – April 20, 1993 in Nebraska v. Wyoming


William H. Rehnquist:

We’ll hear argument next in Number 108 Original, the State of Nebraska v. the States of Wyoming and Colorado.

Mr. Cook, you may proceed.

Dennis C. Cook:

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

We’re here today on exceptions to the Special Master’s recommendations on cross motions for partial summary judgment in an original action this Court accepted in 1987.

It was filed in 1986.

What makes this case important to more than the parties before you here today is that these cross motions for summary judgment provide the opportunity for the Court to demonstrate the proper application of summary judgment as a procedural tool to secure a just, speedy, and inexpensive determination of this original case.

To follow the Special Master’s recommendations here will be to accept a view of summary judgment that is incompatible with the Court’s decision in Anderson v. Liberty Lobby, Celotex v. Catrett, and National Wildlife Federation v. Lujan.

The Special Master in this case indicates at the outset of his Second Interim Report that he has followed the Court’s dictates with regard to the summary judgment decisions, but I would submit that he hasn’t, and the clear example that makes the case is in his resolution of the below Tri-State issue, where the Special Master says:

The specific issue to be addressed at this point is the appropriateness of ruling on whether Nebraska’s as-yet-unseen evidence of injury or threatened injury to her interest downstream of Tri-State will be material to whether Wyoming or Colorado has violated Nebraska’s apportionment.

At this stage, however, it is premature to enter an order advising Nebraska how she may develop her case and the provisions for which her evidence will be deemed material.

Reading the Court’s summary judgment decisions, I do not believe that there’s a fair reading of those decisions that would allow this recommendation not to decide, but to allow Nebraska more time yet to determine if it has a case, to grope along for another 6 years, possibly, to determine if it has a case.

That’s the heart of our issue.

Nebraska has brought a petition that alleges four specific violations of the North Platte decree.

Wyoming has admitted in our answer… we have admitted the four specific actions, but denied that they violate the decree.

Then by way of summary judgment motions, Wyoming asks the logical and unavoidable legal question of whether those four specific acts do in fact violate the decree.

Despite what… as complicated as this case may appear from time to time, that legal question is not complicated.

It involves simply reading the North Platte decree and determining with respect to each of the four issues whether there’s a violation of the decree.

The decree was final in 1945, it is a clear and unambiguous statement of what injunctions were imposed against Colorado and Wyoming and Nebraska, and it does not require a trial or further evidence to at least interpret that decree.

The analysis of all of the four specific acts follows the same basic course of reasoning.

First, the Court must look at the act and determine within the language of the decree whether in fact that specific act constitutes a violation of the decree.

Then, if it isn’t a violation of one of the existing injunctions against Wyoming, then Wyoming is entitled to a summary judgment on that pure question of law.

Before going further with any one of those specific acts to determine if this Court should exercise its extraordinary power to enjoin the State of Wyoming to prohibit an act, the Court then has to ask the question, has it been asked to amend the decree by Nebraska, has the Court agreed to consider such an amendment of the decree and then, if both of those tests have been met, now, on summary judgment, when Wyoming moves to pierce their pleadings, has Nebraska come forward with evidence that would support a finding in their favor, and that evidence would have to support a finding by clear and convincing evidence that an injunction is necessary to protect some vital interest of the State of Nebraska under the existing decree.

William H. Rehnquist:

Mr. Cook, do you plan to go through the various points seriatim?

Either… as you say, the case does perhaps appear somewhat complicated, and I at any rate would be helped if… the first one is the Inland Lakes, is that right?

Dennis C. Cook:

That’s one issue, and I can get to that right away.

William H. Rehnquist:

Yes, well, just whatever order you want, but it would help me if you could devote a little bit of attention to each one of the issues.

Dennis C. Cook:


Your Honor, let me turn to the Inland Lakes, at your suggestion, and suggest that Wyoming is entitled to a ruling in its favor on summary judgment, and our initial summary judgment motion was that it is not a violation of the degree for Wyoming not to recognize an interstate water right for the Inland Lakes.

The point that we would make is that there is no interstate water right in the decree, Your Honor.

The Supreme Court in 1945… and I would turn to paragraph IV of the decree.

Dennis C. Cook:

That’s found at Appendix A-4 of our brief… knew how to specify an interstate water right.

The entire North Platte case that spanned 11 years from 1934 to 1945 was about a request to enforce interstate water rights.

That was to have the State of Wyoming and the State of Wyoming… or, State of Wyoming, pardon me, and the State of Colorado forced by this Court to exercise their police power against valid rights in those States for the benefit of a right in Nebraska.

No one asked for an interstate water right for the Inland Lakes, and when you look at paragraph IV, where there’s very careful specification of the interstate water right for five specific canals, where Wyoming was required to exercise its police power to prohibit the… or to interfere with the operation of valid Wyoming water rights for the benefit of these Nebraska rights, the Court was clear.

They did not issue a water right then for the Inland Lakes.

They were not asked to issue one, and there was no predicate State water right for which they could base one.

William H. Rehnquist:

The Master’s alternate ground for granting summary judgment for Nebraska on the Inland Lakes I think was that there had been a longstanding acquiescence by Wyoming.

Dennis C. Cook:

That is his basis, or one basis.

We disagree, Your Honor.

Yes, I would expect you would.

Dennis C. Cook:

What has occurred over time is that the Inland Lakes have stored water from the North Platte River, but since 1913, the record that we’ve supplied through our affidavits on summary judgment is that Wyoming has put the United States on notice since 1913 that they had no valid water right, and to the extent that they took water, they had no right to expect priority administration.

They were taking free river water at their peril.

In other words, they can continue to do that, and we will allow that practice to continue now, but the problem is, is the Special Master would recommend that a 1904 priority be imposed that works a mischief on many Wyoming water rights obtained according to Wyoming water law, including the Cities of Casper and most of the major users on the North Platte.

Further, I would just suggest that because it’s not in the decree, that resolves the issue completely, and there is no interstate water right.

Should the Court consider whether they would like to amend the decree, that becomes, then, a question of fact, whether that amendment is necessary to protect those interests in Nebraska that are protected by the decree, and the decree clearly protects irrigation water rights that divert between Whalen and Tri-State Diversion Dam, nothing else… nothing further downstream.

If I might, Your Honor, I’ll turn to the Deer Creek issue, to give some thought to that.

On the Deer Creek project, clearly even the Special Master agrees that there is no current restriction that prohibits Wyoming from constructing the Deer Creek project.

The issue becomes whether the Court has agreed to accept an amendment of the decree, and hear a case to amend the decree to prohibit Wyoming from constructing the Deer Creek project.

Whether the courts accepted it, or whether the State of Nebraska made the proper threshold showing allowing them to get into court on that separate issue, becomes irrelevant when you look at the fact that now it apparently is here in front of the Special Master on summary judgment Nebraska has come forward with no facts that under your cases on summary judgment would support them prevailing at trial if that was the only evidence presented.

Special Master Olpin in this case narrowed the issue down to the record of two specific affidavits of Mr. Lee Becker, an expert employed by the State of Nebraska, former Nebraska State hydrologist, and those two… I’d point the Court’s attention to that in their consideration of this case to review those two affidavits and determine if they could enter judgment on behalf of Nebraska based on that.

Mr. Becker specifically told… in his March 1 affidavit indicated that, after analyzing the Deer Creek project, its effect on the North Platte River, he even analyzed the impact of a junior water right on the Inland Lakes, and he analyzed the impact of no flows from the Laramie reaching the North Platte, he concluded that historic diversions from Whalen to Tri-State Diversion Dam can be met in all scenarios described.

Byron R. White:

I can’t understand the Master’s finding.

He refused to enter summary judgment for Wyoming, but he said that this… the Deer Creek thing had to be tried, so it wasn’t as if he entered summary judgment against you.

Dennis C. Cook:

Oh… no, he hasn’t judged against us, but the problem, Your Honor, is… and the purpose of summary judgment is, if there’s no proof at this point, 6 years into this case, no affidavits when two separate motions for summary judgment have challenged Nebraska to come forward with a reason for trial, then why should we go through the considerable expense of trying an issue that… there’s nothing there?

The issue–

Well, the Master–

Dennis C. Cook:

–Pardon me.

Byron R. White:

–I know you don’t agree with the Special Master, but the Master… it was his opinion that the Deer Creek project if carried out would lessen the mainstream flow of the North Platte.

Dennis C. Cook:

Your Honor, there’s no debate about that.

To build a project, if it doesn’t deplete the stream, there’s no point in building it.

Byron R. White:

Well, yes, and what if he… and if he’s right about that… of course, you claimed that it wouldn’t, didn’t you?

Dennis C. Cook:

No, no, no.

We freely admit that it will deplete the system 10,000 acre-feet per year on average.

Byron R. White:

And why did the Master think that there should be a trial, then?

Dennis C. Cook:

Well, he submits that there’s indication to him based on those affidavits of a question of fact that those canals in that Whalen to Tri-State reach will be affected.

Mr. Becker’s affidavits indicate that he does not conclude that.

He had a second affidavit that said, I still agree with my first conclusion.

When we pointed this out and said it looks to me like you’ve lost your case, they came up with a second affidavit and he said, I agree with my conclusion, but I also recognize that there are other analysis of this Deer Creek project that would indicate that the effect of Deer Creek would be on Government storage projects in Wyoming, and then, in a series of dry years, that could affect.

The point is that could affect doesn’t tell us anything.

He doesn’t agree with that.

He doesn’t like that analysis, and he has submitted to the… he’s committed to the other.

We also have a record that shows that Nebraska takes more than 40,000 acre-feet per year in excess of the requirements determined by this Court in 1945 as what it was protecting, so we have Nebraska taking in excess of 40,000 acre-feet per year more than their requirements at the same time they’re attacking the construction of a 10,000 acre foot per year project for municipal use in Wyoming.

I think that summary judgment resolves this issue in paragraph XIII, and the Court need go no further.

If it does go further, then there’s the paragraph X question of municipal use and the exemption under paragraph X, Your Honor.

John Paul Stevens:

Well, didn’t he say that issue had to be tried in any event… whether it came within the exception in paragraph X?

Dennis C. Cook:

He has, Your Honor.

We don’t think so.

We don’t think there’s even been a question of fact presented about whether the municipal use that would be made of water stored in Deer Creek is not the same municipal use that would be used in Nebraska or Colorado, and we don’t see the affidavits that show contrary to that, but we think that paragraph X need not be reached, but we also think paragraph X is an absolute exemption.

John Paul Stevens:

But who has the burden of proving whether or not the water would be within the usual domestic municipal and so forth purposes?

Dennis C. Cook:

In the case that it would be questioned, it would be the State of Wyoming, Your Honor.

John Paul Stevens:

Isn’t he saying that you have to put in proof on that issue, so therefore he can’t decide on summary judgment?

Maybe I misunderstood something.

Dennis C. Cook:

Well, he… there has to be a controversy.

We’ve said there’s no problem with Deer Creek, so then it becomes incumbent upon our opponent to come forward with proof why… where we’re wrong and what would entitle him to an injunction preventing the Deer Creek project.

Sandra Day O’Connor:

What is the State water law in Wyoming concerning municipal use of water.

Wyoming’s a prior appropriation water law State.

Dennis C. Cook:

That’s correct, your Honor.

Sandra Day O’Connor:

And if an irrigation use has a prior date than municipal use, is it the law in Wyoming that then the municipal user would have to condemn and pay for that right to come in ahead.

Dennis C. Cook:


That’s a correct analysis.

Sandra Day O’Connor:

But you… do you think that the Special Master interpreted paragraph X to override State law on prior appropriation insofar as municipal use is concerned in this decree?

Dennis C. Cook:

No, I don’t, and no, he didn’t, Your Honor.

Sandra Day O’Connor:

I read him as having done just that.

I thought the decree, paragraph X, just said the decree won’t determine this issue.

We leave it to State law.

Dennis C. Cook:

And that’s the position that we take as well, Your Honor.

Sandra Day O’Connor:

Well, it certainly isn’t clear that that’s how the Master understood it.

Dennis C. Cook:

But that’s how we understand it, and I agree with you, Your Honor.

Mr. Chief Justice, I’d like to reserve my remaining time.

William H. Rehnquist:

Very well, Mr. Cook.

Mr. Norton, we’ll hear from you… or, I’m sorry, Ms. Norton.

G-a-l-e can be either a man’s or a woman’s name.

Gale Norton:

That’s correct, yes.

Mr. Chief Justice and may it please the Court:

The State of Colorado is today involved only in the issue of claims of Nebraska for water below Tri-State Dam.

For us, it is a very important issue, because it determines not just the scope of issues to be tried in this case, but whether Colorado is involved in this case at all.

The case is essentially an allegation by Nebraska of decree violations by Wyoming.

There is absolutely no allegation that Colorado has in any way violated the decree.

Tri-State Dam is essentially on the Nebraska-Wyoming State line.

The area below Tri-State Dam was tried in the original 1945 decision, and in that case the Court found, after there had been litigation, that the area below Tri-State Dam was adequately served by local supplies.

Those were return flows from irrigation.

Those included the rain that fell in that area, but local supplies were adequate without any call on the upstream Wyoming and Colorado share of the river to preserve the irrigation within the Nebraska areas.

Downstream, or upstream from Tri-State, Nebraska has large rights in the water.

It derives water from storage rights, from reservoirs that have been built upstream for the benefit of Nebraska, and it also has specifically allocated to it within the decree various canals and the ability to draw water from those canals.

What Nebraska seeks in this case is apparently the ability to go beyond what has been decreed to it and to introduce evidence about various equities that have developed, equities developing from the fact that it has had excess water beyond the limited amount that it is given in the decree, and that because of that extra benefit it has had through the years, it has developed equities in reliance on that excess water.

Essentially what Nebraska is trying to do is to circumvent the limited nature of the enforcement action in which the Special Master is currently involved.

This Court agreed to hear the case essentially as an enforcement action.

Twice, Nebraska has attempted to modify its petition in order to expand and to allow amendment and modification of the decree itself.

The first time this Court denied outright that attempt to expand the action.

The second attempt is still pending before this Court.

Gale Norton:

Nebraska’s approach drastically changes the nature of this action from determining whether simply the four specified violations by Wyoming are, indeed, violations of the compact, to a complex trial, including a trial on the equities of current usage and on the issues of the need for water for endangered species.

This, certainly for Colorado, presents the potential of a reshuffling of the equities.

We have settled equities from the 1945 decision, and we are very concerned about any attempt to reopen those equities and to reweigh those equities.

Byron R. White:


Gale Norton:

We currently have very specific reservation of water under the compact.

If, however, it is reopened to say that additional water comes from upstream to supply Nebraska’s needs, potentially–

Byron R. White:

This is on the Platte and the Laramie, both?

Gale Norton:

–We are concerned essentially here about just the Platte, although broadly speaking, if it were to reopen… there’s absolutely no need to reopen the Laramie decree in this case, but we also have great interest on the South Platte as well, and because the Whooping Crane habitat and the habitat of the other endangered bird species is about 230 miles downstream into Nebraska, beyond the confluence of the North Platte and the South Platte, if that were to be opened up to determine what the water needs of Whooping Cranes are, then that would potentially endanger our rights on the South Platte as well.

All of these issues are currently being considered in an Endangered Species proceeding on Lake McConahay.

At every point when a new project is considered, the Endangered Species issues are likewise considered there.

There’s certainly no reason in this enforcement action to open up the decree to consideration of new issues like that.

Essentially what we ask this Court is to keep in mind that the analysis should be a backward-looking interpretation of the decree itself.

In order to rule on our motion for summary judgment, it is necessary only to look at the decree, the decision of the pre-1945 record.

Antonin Scalia:

Do you want us to deny all three of the additional counts that Nebraska wants to add?

Is that what you’re asking?

Gale Norton:

We would like to… if I understand your question, we would like to see that there is no modification to reopen the petition.

We would like to see a ruling for our motion for summary judgment, which is that Nebraska is not allowed to raise additional–

Antonin Scalia:

What is Nebraska to do about these grievances?

I mean, assuming Nebraska still feels that she has a good claim?

Gale Norton:

–If there is a–

Antonin Scalia:

I mean, you can’t run away from it entirely.

I’ll come back sometime, I assume, right, just not in these proceedings?

Gale Norton:

–It is not necessary at all for an interstate water decree to be adjusted because there are increased needs in one of the downstream States.

We have settled responsibilities.

Antonin Scalia:

Well, that’s a merits question.

You’re not arguing the merits question to us.

I thought you were just saying, look, we’ve got enough complications.

This goes beyond what this case has been about, and therefore these amendments should not be allowed, right?

Gale Norton:


Antonin Scalia:

Now you’re telling me not only should the amendments not be allowed, but these claims are not bringable.

Antonin Scalia:

They are surely bringable.

I mean, they may be no good on the merits, but you want them to start a separate proceeding, is that what you think should be done?

Gale Norton:

The proper way to address these issues, if they were to be addressed, would be through a modification of the decree through a petition by this Court meeting the standards for a new, equitable apportionment in front of this Court.

What we have now is only an enforcement action, and whether a violation has occurred or not should be determined based on looking at the existing decree, not at wide open modifications of that decree.

I’d like to note finally that it is important to understand, as Nebraska attempts to say, that there are reliances by downstream water users, that their needs are satisfied through the process of reuse of water.

They have specific claims to allow water into their irrigation canals, and that water is then reused as it goes through the process, and that is the way in which all of Nebraska’s claims are properly satisfied and that is the way the decree contemplated they would be satisfied.

It is why this Court felt that there were adequate local supplies in 1945 in order to satisfy those needs.

We ask the Court to give us the certainty that is necessary within the context of interstate water allocations.

If there are no further questions, thank you.

William H. Rehnquist:

Thank you, Ms. Norton.

Mr. Simms, we’ll hear from you.

Richard A. Simms:

Mr. Chief Justice, may it please the Court:

Colorado has just described to you the so-called Tri-State issues solely in the context of Nebraska’s petition, and I would submit to you they have absolutely nothing to do with Nebraska’s petition.

They relate entirely to Wyoming’s counterclaim, which is not before you on exceptions.

With respect to these Tri-State issues, it is imperative that you know what Wyoming and Colorado are truly after.

They are truly not seeking to define the apportionment, as they have told you, but rather to preclude the presentation of evidence underlying one of Nebraska’s principal defenses to Wyoming’s counterclaim.

When the equities were evaluated in 1945 in this case, one of the factors that was considered, one of the most important factors that was considered by the Court, was return flows.

That is, flows that go from upgradient lands after the primary use and can be utilized again on downgradient lands.

At the close of the evidence, Nebraska conceded that she needed no apportionment of direct flows east of Bridgeport, Nebraska… that’s about 60 miles into Bridgeport… but she still maintained that she needed an apportionment of direct flows for the lands between Tri-State, just below the State line, and Bridgeport, some 60 miles in.

The… Master Doherty found, in dealing with this problem, that there did not be an apportionment of direct flows because the canals below Tri-State, lying below Tri-State and between Tri-State and Bridgeport, could be satisfied by return flows, and what he did was to stop the direct apportionment at Tri-State with the understanding that, as an intrinsic part of that apportionment, the canals below Tri-State and above Bridgeport would be satisfied by the return flows.

There are ten canals in that area now.

Their sole source of supply… that is, their sole source of natural flow… comes from those return flows.

There are no tributaries in the reach.

They have no alternative means of obtaining water.

The definition that the State of Wyoming wants from the Court is this: they want you to declare that, quote, evidence of uses supplied by diversions below Tri-State Dam is immaterial to proof of Nebraska’s apportionment under the decree, end quote.

Well, Wyoming’s purpose in seeking that definition is simply to enable it to pursue its counterclaim without respecting the indirect apportionment to the canals below Tri-State and above Bridgeport.

In 1945, these canals were called the optional diverters.

Now, if New Mexico… or, if Nebraska’s evidence could be precluded, eliminating Nebraska’s obligation to protect parens patriae all of those users relying on return flows, Wyoming could then freely pursue her counterclaim to attempt to force on the primary users of waters diverted at Tri-State increased efficiencies, and they would do so pursuant to the Court’s first decision in 1980, I believe, in Colorado v. New Mexico.

Without going through the numbers, if you were to increase the efficiency of the primary users by 15 percent, you would reduce the return flows by 50 percent.

That would leave the ten canals in that stretch without the source of water that was provided to them by Master Doherty.

Antonin Scalia:

How… this is what I don’t understand.

Tell me how proof concerning the return flows, the extent of them and so forth, has anything to do with what the decree said, what, 40, 45 years ago?

How could–

Richard A. Simms:

The decree apportioned the direct flows at Tri-State–


Richard A. Simms:

–For lands immediately below Tri-State.


Richard A. Simms:

It did so recognizing… explicitly recognizing that returns would be utilized from the primary diversion for the downstream canals.

That was an intrinsic–


Richard A. Simms:

–Part of the apportionment.

Antonin Scalia:


Now, why isn’t that question… that’s what you… and that’s what you say, and you say that therefore you have a right to those flows, and they say no, you don’t have a right to them.

Maybe it was part of the understanding, part of the reason they didn’t give you more of the direct apportionment, maybe it wasn’t, but you don’t have an entitlement to them… right?

That is the issue of law.

How can that issue of law be affected by the facts concerning how substantial those return flows are?

Richard A. Simms:

We… Nebraska needs to be able to protect parens patriae all of the users of waters apportioned, whether for direct application or for return flow application.

Antonin Scalia:

Well, I understand that, and that can prove that it is very important to Nebraska that the answer be X instead of Y, but I don’t see how it proves the answer is X rather than Y.

It may prove that you’re losing more in getting a judgment against you, but I don’t see how it proves that the decree meant one thing half a century ago rather than another.

Richard A. Simms:

I believe, Justice Scalia, what it proves is what the United States urged upon Master Doherty in 1945.

They urged this alternative for these optional diverters of not providing them with a direct flow apportionment at Tri-State, and the alternative was, we can provide them with return flows.

That is their sole source.

We need to be able to establish that as a factual matter in order to protect those users parens patriae, and all of that is embraced within the apportionment in paragraph V.

I’d like to get on to the Deer Creek matter.

With respect to Deer Creek, the Special Master left open the possibility of avoiding trial in giving Wyoming an unconstitu… or, an unconditional license to deplete the irrigation apportionment if the proposed Deer Creek project fell within Master Olpin’s construction of paragraph X.

Paragraph X in the decree states that the decree shall not affect or restrict municipal uses.

Reading an affirmative grant into paragraph X, contrary to the plain language of that paragraph, Mr. Olpin has construed paragraph X as giving municipalities a right to deplete the flows that were apportioned for irrigation.

Instead of reading paragraph X as ensuring that the apportionment provisions would not restrict municipal uses, as it says quite plainly, he reads paragraph X to say that municipalities can restrict the apportionment.

What he has done, in effect, is to redefine paragraph X to infer an affirmative right as a result of the paragraph’s elimination of restrictions.

Doherty’s… Master Doherty’s explanation of that paragraph in 1944 I think conclusively establishes that Master Olpin is wrong.

Sandra Day O’Connor:

Then you take the position that yes, municipal uses can be made of the water but they’re chargeable under the apportionment formula, I take it, to each State… to the State that takes it.

Is that your position?

Richard A. Simms:

I m not certain I understand your question, Justice O’Connor.

Sandra Day O’Connor:

Well, the decree apportioned waters out of, let’s say, the Laramie, in a certain percentage to each State.

Now, if Wyoming takes water that was apportioned to it for municipal… it takes water out of its 25 percent, or whatever it is, and uses it for municipal purposes, does that still count toward the 25 percent that was apportioned to Wyoming?

Richard A. Simms:

That 25 percent went only to the irrigation apportionment.

What we are saying is that the paragraph itself plainly said and was meant to remove any possible restriction on municipalities by the operation of the coercive aspects of the decree.

Master Doherty, when he made his recommendation to the Court for the decree provisions, said, and I’m quoting, the parties are agreed that there should be no restriction upon the diversion from the North Platte River in Colorado or Wyoming of water for ordinary and usual domestic and municipal purposes and consumption.

Nothing in the injunctions recommended is intended to or will interfere with such uses, diversions and uses, end quote.

By reference to the injunctions, Master Doherty I believe was explaining what was meant a little bit more specifically, and what he was explaining was that the coercive parts of the decree should not affect municipalities.

He was not indicating in the slightest manner that paragraph X somehow gave an affirmative right to deplete the apportionment for irrigation purposes.

Byron R. White:

How would Nebraska be injured by the Deer Creek project?

Richard A. Simms:

Nebraska would be injured in three different areas.

The proof shows that it would, during a period of drought, make it impossible to meet requirements.

The proof also shows that there would be a reduction in upstream Federal reservoirs in large sums.

The proof also shows that Deer Creek, which would in large part deplete winter flows, would adversely interfere with the Inland Lakes, and the proof weighs very heavily… very heavily, beyond any standard that might be imposed under Celotex or Liberty Lobby.

Byron R. White:

But the immediate effect is to take water out of the mainstream of Deer Creek.

Richard A. Simms:

Pardon me, Justice White?

Byron R. White:

The effect of Deer Creek is that it would deplete… take water out of the mainstream of the North Platte.

It would divert water from the mainstream and store it.

Richard A. Simms:

The proposal is this.

The City of Casper sits upstream.

Byron R. White:

Yes, I understand that.

Richard A. Simms:

Downstream are senior agricultural users–


Richard A. Simms:

–Who could call out Casper.

Casper has junior rights.


Richard A. Simms:

The entire purpose of this scheme is to take tributary flows in an intermediate tributary, Deer Creek, store them in the winter, then release them to the downstream seniors so the downstream seniors theoretically would not call out the City of Casper.

Even as to its alleged municipal component… and bear in mind that there are many other components to Deer Creek, but even as to its alleged municipal component, all it is doing is providing a supplemental supply to downstream senior irrigators and in effect changing the concept of priority in Wyoming contrary to paragraph XII(a) of the decree.

Byron R. White:

And how does that hurt Nebraska, you say?

Richard A. Simms:

It hurts Nebraska in three different ways.

It hurts Nebraska in terms of her apportionment at Tri-State, it hurts Nebraska in terms of her right to have the Inland Lakes filled with nonirrigation waters during the winter, it also injured Nebraska in that the yield… if the yield of Deer Creek were 9,600 acre-feet annually, it would severely reduce the amount of water… carryover storage water in upstream reservoirs, so there are three ways in which Nebraska would be hurt.

Byron R. White:

How would it do that?

How would it reduce the storage upstream?

Richard A. Simms:

It would do that by virtue of the way in which the water in the different reservoirs accrued to accounts as opposed to physically accruing to the reservoirs, and it’s a very complicated explanation, but nevertheless the evidence, both of the United States and Nebraska’s evidence, establishes that beyond a doubt.

With respect to the Laramie River, the question may simply be one of semantics.

We… it is our opinion that it was apportioned 75-25, 75 percent to the State of Nebraska, when those inflows arrived at the Whalen Tri-State reach.

It is clear, and I think all of the parties are agreed, that those flows were arithmetically included in the fund of water that was apportioned in that reach.

Byron R. White:

In 1945.

Richard A. Simms:

In 1945.

In 1945, there was no standard, really, to make a judgment beyond the 75-25 apportionment.

William H. Rehnquist:

Thank you, Mr. Simms.

Richard A. Simms:

I see my time is done.

Thank you.

William H. Rehnquist:

Mr. Minear, we’ll hear from you.

Jeffrey P. Minear:

Mr. Chief Justice and may it please the Court:

The Special Master has recommended a proper disposition of the pending motions for summary judgment.

He has skillfully articulated the issues in this complicated, ongoing case, and I would like to address those issues in the same order that he chose.

I turn first to the Master’s recommendation with respect to the Inland Lakes which directly affects the United States’ responsibilities under the reclamation laws.

The Master has correctly concluded that the Bureau of Reclamation is entitled to continue its 80-year-old practice of diverting water to the Inland Lakes during the nonirrigation season to meet the needs of the North Platte project.

Wyoming’s challenge to that practice is flawed in four fundamental respects.

First, the Bureau does have a State water permit with a 1904 priority date to divert water for the North Platte project.

The Inland Lakes are an essential component of the North Platte project and are therefore embraced within that permit.

Second, the Inland Lake diversions that are at issue here have occurred continuously since the commencement of the North Platte project operations in 1913.

If Wyoming truly believed that the Federal Government’s diversions were unlawful, it should have raised its objections at that time, or at the latest, at the outset of the proceedings in this case.

Byron R. White:

Well, yes, but your first argument is that even if it had raised it, whenever, they should lose.

Jeffrey P. Minear:

That’s right, but even to the extent–

Byron R. White:

Well, I know, but what–

Jeffrey P. Minear:

–That they might contest that–

Byron R. White:

–Don’t pass over so quickly what you say is an inviolable right of the Bureau of Reclamation to put into this canal the nonirrigation system flows.

Jeffrey P. Minear:

–Why, I certainly don’t mean to pass over it too quickly.

Byron R. White:

Well, you have pretty quickly.

You just say it was just a part of the… the reason is that that kind of a flow in the canal was part of the project.

Jeffrey P. Minear:


When the–

Byron R. White:

For which, what?

Jeffrey P. Minear:

–When the project–

Byron R. White:

For which they had a permit from Wyoming.

Jeffrey P. Minear:

–That is correct.

That is correct, and the project that was… the permit that was filed in 1904, of course, was describing the project in very general terms because it had not yet been built, but when it did go into operation in 1913, the canals had been sized, and these off-canal reservoirs, the Inland Lakes, were being used.

William H. Rehnquist:

When were the Inland Lakes constructed?

Jeffrey P. Minear:

They were constructed between 1904 and 1913.

Now, if… as I said–

Byron R. White:

And did Wyoming ever say that if the Inland Lakes was actually part of the project, that the–

Jeffrey P. Minear:

–They’d be covered by the permit… yes.

Yes, in fact the Special Master notes that at page 25 of his report.

In 1934, the engineer for the State of Wyoming did note that if the Inland Lakes are a part of the project, then in fact they would be covered by that permit.

Now, the third point that I’d like to make with respect to this is that the Bureau’s Inland Lakes diversions were specifically considered in the 1934 proceedings, and are, in the Special Master’s words, a vital underpinning of the apportionment that was ultimately made.

William H. Rehnquist:

–The 1934 proceedings being those which led to the 1945 decree.

Jeffrey P. Minear:

That is correct.

Indeed, Wyoming itself specifically urged that the Bureau’s winter diversions to the Inland Lakes be taken into account by the Special Master in order to reduce Nebraska’s apportionment during the irrigation season.

Sandra Day O’Connor:

Why do you think the early… or, decree never mentioned them at all?

Jeffrey P. Minear:

Well, the decree does not mention a good number of things.

I think it’s important to recognize that all the decree does is implement the Court’s decision.

The Court’s decision in 1945 is long and complex, and it’s an extraordinary matter, as Mr. Cook has stated, to enjoin a State.

The decree only imposed injunctions where it felt it was necessary to do so.

Nevertheless, the decree is founded upon those assumptions and those decisions that are contained in the Court’s decision, and an important part of those decisions was this wintertime diversion to the Inland Lakes.

Antonin Scalia:

Yes, but the other side says that it’s not a matter of just being silent about it, that Article IV of the decree seemingly excludes it.

Jeffrey P. Minear:

No, it certainly does not expressly exclude it, and Article IV of the decree does something quite different.

Jeffrey P. Minear:

All Article IV of the decree is concerned with doing is determining the relationship between certain senior Nebraska canals, so-called State line canals and the French Canal, and the irrigation reservoirs of the Bureau of Reclamation, and what paragraph IV essentially says is you have to fill… you have to supply water to these canals at a certain rate before you can begin to fill the reservoirs.

Now, it’s not clear from reading the decree that that’s what it does.

You have to go back and read the opinion again to understand this, but that is the actual operational purpose of the decree.

Now, the fourth point that I would like to make is that as the Special Master recognized, the result Wyoming advocates here will impair the Bureau’s ability to fulfill its water delivery contracts and will upset settled expectations on the North Platte River.

This manner of operation has been in effect for a long, long time.

Likewise, our temporary storage in Guernsey and Glendo to effectuate this apportionment has been in place for a good number of years as well, and that is simply an operational practice of the Bureau, and I think it’s beyond challenge by Wyoming.

Now, the Special Master also refused to grant summary judgment on three other issues on this case, concluding that the issues were not yet ripe for resolution, or that they involved disputed issues of material fact.

The Special Master’s recommendations on those interlocutory matters should be respected, particularly in light of his familiarity with the record of this case, a record that is still being developed.

Specifically, the Special Master correctly recommended that this Court should deny summary judgment motions with respect to the Laramie River’s contributions to the North Platte.

There are two critical considerations with respect to this matter.

First, Wyoming’s argument that this matter is controlled by the Laramie decree is untenable, because that decree only apportions flow down to the Wheatland project on the Laramie River.

Post-Wheatland accretions continue to flow into the North Platte River, so that decree does not control matters.

Byron R. White:

What about the provision in the 1955… was it ’55 or ’57 Laramie River decree?

Jeffrey P. Minear:


Now, that decree, of course, was entered simply by consent between Colorado and Wyoming, and the provision of the decree that applies here talks about the decree heretofore entered.

The 1945 decree, of course–

Byron R. White:

I understand that, but what did the 1955 decree say?

Jeffrey P. Minear:

–I believe it said, just in general terms, that all the water is divided between those two States, but that has to be read in light of this Court’s decision in 1945.

Byron R. White:

Well, what did that mean?

Did the two States… the decree did say that… did it say that all the water flowing in the Laramie River belonged to one or the other of the States?

Is that what it said?

Jeffrey P. Minear:

I don’t think it said it in quite that broad of terms.

It was a rather general statement, and I think it consisted–

Byron R. White:

Well, what did it say?

Jeffrey P. Minear:

–I don’t have the exact words before me, but I think it could just as easily have been read to state that this is conditioned upon the–

Nebraska wasn’t a party to that case–

Jeffrey P. Minear:

–Nebraska was not part to that case, and what’s more, when this Court in 1945 apportioned the North Platte, it included those Laramie inflows… the post-Wheatland Laramie inflows as part of that pool of water between Whalen and Tri-State that’s divided up among the States, and again, it is a central assumption that went into the apportionment in this case.

Now, Special Master Olpin correctly concluded that since the North Platte water supply that this Court apportioned in 1945 is composed in significant part of Laramie contributions, Nebraska has a right to seek relief for depletions of those flows.

Wyoming is wrong in arguing–

William H. Rehnquist:

–Could it seek relief in this proceeding?

Jeffrey P. Minear:

–Yes, I believe that it could.

William H. Rehnquist:

Wouldn’t that amount to an amendment, or is it just something at the foot of the decree?

Jeffrey P. Minear:

I think this is simply a matter of enforcing the decree, because what you’re really doing… you have to remember, what we have here is the North Platte River that is… the decree imposes certain injunctions on the upper reaches and then apportions a flow of water, 75 percent to Nebraska and 25 percent to Wyoming, in a certain pivotal stretch of the river.

Now, any interference with water flowing into that critical stretch we would view as something that is contrary to the decree and is a proper subject of an enforcement action, and that is why we view this as a proper matter in this proceeding here.

Sandra Day O’Connor:

Well, Nebraska’s filed a motion to amend, I think.

Jeffrey P. Minear:

Yes, it has.

Sandra Day O’Connor:

And what do we do with that, then?

Jeffrey P. Minear:

I believe that the motion that is currently pending before this Court is a motion to apportion nonirrigation season flows.

Now, the nonirrigation season flows were to a large extent not divided between the States.

They go into storage for the various reservoirs.

The United States believes that matter should not be held… it could be dismissed without prejudice, for example, but it should not be resolved until these enforcement matters are resolved first.

What this case is basically about is Wyoming’s desire to change the delicate balance of the river by including new, upstream diversions, and that is what Nebraska is complaining about here.

The United States is, of course, concerned about it, because it affects the operation of our projects.

We have contract obligations to deliver waters to senior appropriators, and any loss in water supply anywhere in the river will affect our operations.

Now, I would also like to specifically discuss the Deer Creek issue.

The Special Master acted appropriately in rejecting Wyoming’s motion for summary judgment on Deer Creek issues based on three crucial factors.

First, paragraph XIII of the decree allows Nebraska to seek relief based on the downstream effects of tributary storage developments, including the proposed Deer Creek project.

Now, Nebraska has put forward substantial evidence showing such effects, and there is therefore a material issue of fact.

Sandra Day O’Connor:

Well, what about the Master’s interpretation of paragraph X exemption?

Jeffrey P. Minear:

Like Nebraska, we’re troubled by this interim interpretation, but it is interim at this point.

We believe that the Special Master should be free to reconsider this issue once he has actually developed the facts with regard to the municipal-use exception.

I think it is important to realize that there are factual issues with regard to the municipal-use exception as well.

This project, the Deer Creek project, although it ostensibly is providing municipal water, none of the water it provides will go to Casper.

It’s actually downstream of Casper.

It’s actually being devised to provide what is called exchange water.

Now, it’s not clear that this would be a municipal use, and I think before we interpret the scope of the municipal-use exception, we ought to determine what the scope of the underlying project might be.

Anthony M. Kennedy:

There’s also an issue about what Casper’s need is, I suppose.

Jeffrey P. Minear:

That is correct.

That also is at issue here.

Finally, there’s the question of how Deer Creek will be administered.

If Deer Creek is administered under the State system junior to all the senior appropriators, and if respect is made for Nebraska’s apportionment, then it might well be that the municipal use here will have no real effect on the river.

The important point at this juncture is that summary judgment on the issue would be premature.

The Special Master should be left free to reconsider the meaning of the municipal-use provision in a concrete fashion when he applies the law to the facts established at trial.

Should we suggest that he ought to reconsider?

Jeffrey P. Minear:

Well, certainly we think that the United States would not object to giving him free rein to reconsider his decision.

We believe he has that.

Byron R. White:

Or… you would object to our saying that he was wrong.

Jeffrey P. Minear:

We would not object to you saying that he was wrong.

I think it would be difficult for this Court also, though, to interpret exactly how the municipal-use provision should apply in the absence of a concrete, factual situation in which to apply it.

The same–

At least we shouldn’t say he’s right.

Jeffrey P. Minear:

–I would agree with that, Your Honor.


The Special Master also correctly resolved the so-called below Tri-State issues.

As you have heard, Wyoming and Colorado seek to preclude Nebraska from offering evidence concerning injuries downstream of the Tri-State Dam.

The Special Master properly concluded that he should not enter an abstract order preventing Nebraska from presenting its evidence as to this matter because it would deny him an opportunity to evaluate Nebraska’s legal theory in the context of specific facts.

William H. Rehnquist:

Of course, that’s really the purpose of a motion for summary judgment, is to prevent the admission of a lot of extraneous evidence if, in fact, it wouldn’t have any bearing on the legal outcome.

Jeffrey P. Minear:

That is correct, Your Honor, but I think the motion here is more akin to a motion in limine, where in fact the… Wyoming is seeking to limit the amount of evidence that can come in with respect to certain issues that might be controverted, and I think that great respect should be given to the Special Master in his role in determining the content of the record here as to whether or not those additional facts do need to be available, or at what point they might be cut off.

It might be the Special Master will determine at a later point that no, these matters are irrelevant.

Byron R. White:

Well, what has this issue got to do with the claims that Nebraska makes that Wyoming is violating the decree?

Jeffrey P. Minear:

Well, Your Honor, part of the difficulty here is it’s not completely clear what Wyoming is concerned about here with regard to this evidence.

One way that this evidence might be relevant is with respect to the Deer Creek issue.

If, in fact, there is a question under paragraph XIII or Article XIII of the decree as to the effect of Deer Creek, one issue might be, well, what is the effect on the people below Tri-State?

For instance, suppose this water, the Deer Creek, actually impairs the availability of those return flows from interstate canal that Mr. Simms alluded to?

The water goes through the interstate canal and irrigates certain lands and then the return flows are then used to irrigate other properties.

What if the Deer Creek project affects those return flows?

Is that, in fact, an effect that should be considered in determining appropriate relief?

We believe it might be, and we think it’s important for that reason not to foreclose the entry of that evidence until it’s quite clear exactly what the context of that evidence will be.

Finally, Special Master Olpin was also correct in rejecting Wyoming’s argument that Special Master Doherty’s determination of canal requirements in the 1934 proceedings imposed limits on the water that could be diverted to the various canals.

I see that my time has expired.

Jeffrey P. Minear:

Thank you.

William H. Rehnquist:

Thank you, Mr. Minear.

Mr. Cook, you have 2 minutes remaining–

Dennis C. Cook:

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

We agree with our statement of the record as far as Deer Creek, and on summary judgment, we’re confident that that record will sustain our view.

On the Laramie River issue, the clear evidence is, and what happened in the past was that Nebraska and… Nebraska said in 1945, you can’t prevent us from looking and seeking an apportionment of the Laramie River because we weren’t a party to the debate between Colorado and Wyoming over its use.

The Court agreed with Nebraska, gave them their day in court, and in the end said, you’re not entitled to an apportionment of the Laramie River.

The Special Master in this case agrees that they have no specific apportionment of the Laramie River.

He agrees that there’s no restriction on Wyoming’s use–

Byron R. White:

But he thinks the… he thinks the original decree contemplated that the Laramie would contribute to the flow of the North Platte.

Dennis C. Cook:

–Well, he suggests that, Your Honor, but if there’s no restriction on Wyoming’s use, and no apportionment to Nebraska, then the trigger needs to be pulled and say there’s no violation of the decree by those proposed uses.

Then Nebraska has–

Byron R. White:

So you think the upstream States… Wyoming and Colorado… are entitled to any of the water that is flowing in the Laramie River.

Dennis C. Cook:

–Until Nebraska obtains an apportionment, and we suggest that if they try to do that they will be relitigating a factual matter that’s already been put to rest in this case.

On the estoppel argument with regard to the Inland Lakes issue, I just want to make the point–

Byron R. White:

Well, on that basis, the Deer Creek issue becomes moot.

Dennis C. Cook:

–Well, that’s our… the Laramie River issues are not the Deer Creek issue, Your Honor.

Laramie involves–

Pardon me.

Where is the Deer Creek–

Dennis C. Cook:

–Deer Creek is on a separate tributary that’s apart from the Laramie River.

The two–

–Well, what about the–

Dennis C. Cook:

–What I would suggest is the two–

Byron R. White:

–What about the other project that–

Dennis C. Cook:

–The two projects, Corn Creek and Grayrocks, are on the Laramie River, Your Honor, and they–

–Yes, those–

Dennis C. Cook:

–They are no longer an issue in this case if there’s no apportionment.

The United States’ estoppel argument on the Inland Lakes makes a clear admission that that issue was not decided in 1945.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Cook.

The case is submitted.

The honorable court is now adjourned until Monday the twenty-fifth at ten o’clock.