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Colorado's Brief in Support of Wyoming's Motion
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Colorado's Brief in Support of Wyoming's Motion
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Last modified
1/26/2010 4:42:02 PM
Creation date
8/10/2009 1:00:32 PM
Metadata
Fields
Template:
Water Supply Protection
File Number
8451.100
Description
Nebreaska v. Wyoming (North Platte Decree)
State
CO
Basin
North Platte
Date
11/9/1998
Author
Supreme Court of the United States, Nebraska, Wyoming
Title
Colorado's Brief in Support of Wyoming's Motion
Water Supply Pro - Doc Type
Litigation
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. . <br />Court, when it specifically discussed Nebraska's new Horse Creek and groundwater claims, <br />treated them as requests to modify the decree which would require proof of "a threat of <br />significant injury." Nebraska III, 515 U.S. at 14. <br />There is nothing ambiguous or mysterious about the Supreme Court's hantlling of <br />Nebraska's claims in Nebraska II and III. The Court ruled that the decree does not presently <br />enjoin the tributary development, or proposed development, of which Nebraska complains and <br />that any new injunctions against Wyoming would constitute modifications of the decree, and <br />the Court accepted Nebraska's amended petition as requesting such modifications. In trying to <br />resuscitate her enforcement case, Nebraska apparently has no compunctions about contradicting <br />her own past representations or ignoring the Court's prior decisions. <br />Equally disturbing is Nebraska's transparent effort to avoid her burden of showing <br />substantial injury before the Court will grant a new injunction "declaring new rights and <br />responsibilities," Nebraska II, 507 U. S. at 593, by seeking to have the Court enforce <br />restrictions that are not stated in the decree. Wyoming's hrief presents eYtensive authority for <br />rejecting the idea of such implied injunctions. Penalizing a party for failing to discern and <br />comply with unspecified prohibitions fits the kind of political system described by Franz <br />Kaflca, but has no place in one that requires fair notice and due process. Moreover, as a <br />practical matter, judicial approval of implied injunctions would undermine the same "interests <br />of certainty and stability [that] counsel strongly against reopening an apportionment of <br />5
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