A RIVER RUNS THROUGH THE SUPREME COURT

Not all decisions of the U.S. Supreme Court make headlines in newspapers or excite panels of talking heads on television or in social media. However, this does not mean that such decisions have no importance.

One such "quiet" ruling was issued by the Court in February.* It involves the Republican River Compact, a contract between the states of Kansas, Nebraska and Colorado to allocate the "virgin water" originating in the Republican River basin Congress approved the Compact in 1943.

However, as can be the case with any contract, disputes arose. In 1998, Kansas sued in the Supreme Court ** asserting that Nebraska's increased groundwater pumping was regulated under the Compact to the extent that the pumping reduced stream flow in the basin. The Supreme Court agreed with Kansas, resulting in a settlement producing certain accounting protocols.

In 2007, Kansas sued again, alleging that Nebraska had exceeded its allowed allocation of water. In turn, Nebraska alleged that the accounting protocols under the Compact improperly charged it for using imported seater. The Supreme Court appointed a special master to hear the matter. The master's report concluded that Nebraska knowingly failed to comply with the Compact and recommended that Nebraska disgorge part of its gains and pay damages to Kansas. The Supreme Court agreed with these recommendations. It found that Nebraska knowingly exposed Kansas to a risk of receiving less water than its entitlement.

Interestingly, the Court stated that an award of damages in a case involving compact rights may be an inadequate remedy to deter an offending state from disregarding its obligations when it is advantageous to do so. Therefore, it stated, the additional remedy of disgorgement is appropriate to stabilize the Compact and to deter future breaches.

Water is a valuable resource and, when it runs though several jurisdictions, it must be shared in some structured manner. When states enter into contracts with each other, they, as is the case of contracts between people, must comply with their obligations or consequences follow. In this case, the consequences flowed through the Supreme Court.

___________________________________________

*Kansas v. Nebraska,574 U.S.__(2015)

**The Supreme Court has original
jurisdiction in controversies
between states