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What Did The Court Say? David Robbins Special Assistant Attorney General Hill & Robbins, P.C. (Since 1985 David Robbins has represented the State of Colorado in the U.S. Supreme Court Case of Kansas v. Colorado, This involved the alleged violations of the Arkansas River Compact.) My talk should probably be called "What Did the Court Say and What Didn't the Court Say?" My partner, Dennis Montgomery, has worked diligently on this case for the last ten years as well. Dennis was instrwnental in advocating Colorado's position. When a state sues a state, the Constitutional framers determined that that litigation would occur in the United States Supreme Court. If:you think about history, you will recall that there were 13 colonies, each of which viewed itselfas being sovereign and independent. They came together to form the United States, Each of those states was jealous of its prerogatives. The framers of the Constitution decided to allow the adjudication of differences of opinion among these sovereigns by_the highest court of the land, and the only constitutional court of the land, the U .S, Supreme Court. In the early days, when a state sued a state, the court actually listened to the arguments and the evidence and handed down a decision, Over the }'ears, the increasing number of states gave rise to an increasing number of disputes, and with the increase in the number of citizens and the complexity of the laws, the court's docket became more and more crowded . Over the past 30 or 40 }'ears a system of appointing a "Special Master" was adopted. The court appoints an individual, who can be a judge or a noted lawyer in the American legal community, to sit and hear the positions of the contesting states and ~ render to the Supreme Court his recommendation concerning the facts that he has heard and any legal decisions he believes ought to be entered. The Special Master is not a judge. He is an officer of the U.S. Supreme Court, To those of you who think that Kansas v. Colorado has been in some kind offederal court appellate process, it has not. The case, since 1985 when it was filed, has been under the jurisdiction of the U.S. Supreme Court, and Arthur Littleworth from Riverside, California, a noted California legal scholar in water and natural resources law, has been the Master. He presents his recommendations to the court, and the court then considers those recommendations and hears arguments of the parties. The court is then free to do whatever it likes with those recommendations, The court can throw them out, send them back. tell the Master to start over, appoint a new Master, change whatever findings it wants to change, change whatever rulings oflaw it wants to change, or, as in this case , it can simply say, "We think you did a good job, We adopt them." The Constitution did another thing -- it provided that disputes among these sovereigns, who made up the United States, could also be resolved by agreement, This was provided for in the compact clause of the Constitution. It permits states, with the approval of the U.S. Congress, to enter into compacts on issues of common interest and jurisdiction. These are areas where two or more states may assert sovereignty over a particular subject matter and sit down and work out their differences and agree on what the allocation will be. It is a constitutional mechanism that allows states to come to an agreement so they are not constantly litigating. The Arkansas River is a classic example. The States of Kansas and Colorado both have water users who depend upon the waters of the Arkansas River both for economic well-being and " for protection of enviromnental interests in the two states. When water demand and consumption occurs in one state, it affects the other state. A compact was entered into to try and resolve those issues, I want to emphasize the purpose of a compact in the case of water. It allocates the right to use certain portions of water to two or more states. The fact that compacted water arises in Colorado is irrelevant. Colorado's Legislature, Kansas's Legislature, and the U.S. Congress have ratified a document that says what Kansas is entitled to receive. It is a law of the State of Colorado, entitled to enforcement just like any other law. It is a law of the U.S., entitled to enforcement just like any other national law, Whether you like it or don't like it, think it is fair or unfair, it is the law of the land at this time. Arkansas River Basin Water Forum 18 "A River of Dreams and Realities"