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<br />Page 5 <br /> <br />. <br /> <br />7. Kansas v. Colorado, United States Supreme Court, No. 105, Original. <br /> <br />Issue: <br />Compact? <br /> <br />Decision: Special Master Arthur Littleworth issued his final report on damages. There are <br />no signiticant changes from the draft report. He ruled for Kansas on some, but not all. of the <br />disputed issues. On the critical issue of prejudgment interest, he recommended that prejudgment <br />interest not be awarded for the period from 1950-1968, because of the general lack of knowledge <br />about the effects of well pumping in both states, but that prejudgment interest be awarded from <br />1969 to the date of judgment. He did not calculate the amount of damages in the report. Our <br />expert believes that damages calculated according to the report will be about $40 million. The <br />Master has ordered the states to confer to try to agree on the amount of damages that would be <br />awarded if the Supreme Court follows his recommendations. The states have done so and are <br />very close in their estimate of damages through 1994 (in 1998 dollars) based on the report: <br />between $37 and $38 M. <br /> <br />What is the proper remedy for Colorado's past violation of the Arkansas River <br /> <br />. <br /> <br />Discussion: This case has been in litigation since Kansas sued Colorado in the U.S. Supreme <br />Court in 1985, alleging that Colorado had violated the Arkansas River Compact. Special Master <br />Arthur Littleworth dismissed two of Kansas' three claims - involving Trinidad Reservoir and the <br />Pueblo Reservoir winter storage program - but found that post-compact well pumping had <br />violated the Compact, and the Court accepted the Master's findings. The remedy phase of the <br />trial was completed on January 28, 2000. Kansas reduced its claim from $78M to $62M, a figure <br />that includes prejudgment interest, which we do not think is appropriate. Kansas' claim in 1998 <br />dollars (adjusted for inflation, but with no interest) totals $21M. By comparison, our evidence in <br />1998 dollars indicates a much lower damage award. Different assumptions by Colorado and <br />Kansas result in vastly different amounts of damages. Both states tiled exceptions and <br />responses to the other's exceptions. The U.S. jumped in with a brief in opposition to both <br />states' objections and supporting the Master's recommendation. We have requested leave <br />to respond to it. We believe we have several strong legal arguments relating to sovereign <br />immunity and prejudgment interest. Several issues still remain to be tried: whether Colorado <br />was in compliance in 1997,98, and 99 and how future compliance should be determined. <br /> <br />8. Kansas v. Nebraska, United States Supreme Court, No. 126, Original. <br /> <br />Issue: <br />Compact? <br /> <br />Decision: Special Master Vincent McKusick issued a report recommending to the Court that <br />the Compact restricts the compacting states' consumption of all ground water - alluvial and <br />Ogallala - that depletes stream flow in the Republican River Basin. On June 29, without hearing <br />argument. the Supreme Court issued a one sentence order denying Nebraska's motion to dismiss, <br />and recommitting the case to the Special Master for further proceedings. <br /> <br />Have Nebraska, Colorado, and Kansas wells violated the Republican River <br /> <br />Discussion: Kansas tiled an original action against Nebraska in the U.S. Supreme Court in <br />1998. alleging that Nebraska had violated the Republican River Compact by allowing post- <br />. compact wells to consume more water than allowed under the Compact. Nebraska tiled a motion <br />