Court Doubts Water Claims: Denver Post

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Court to decide w I is owed VMTER from Page 1 A Shoyears ago, the high court unani- mously sided with Kansas' claim than Colorado illegally diverted water from the Arkansas through wells in southern Colorado. That water should have gone into Kan- sas iunder a 1949 water compact between the states, the high court ruN. Kansas' claim supported Its sent the issue back to its spe- cial master, Arthur L. Littleworth, a Rierside, Calif., lawyer and wa- ter la w specialist. He was to deter- mine .how Kansas could be com - pensaXq for its losses. The options were ney, water or a.combina- ti_on of both. After detailed hearings spread over several years and months of behind -the- scenes negotiations be- tween the two states, Littleworth filed his recommendations with the Supreme Court on Aug. 31. His report figured that Colorado had taken 428,005 acre -feet of wa- ter from the river between 1950 and 1996. More importantly, he al- so supported Kansas' claim for monetary damages: Littleworth, however, didn't go as far as Kansas wanted. "There is no direct Supreme Court precedent on the measure of damages in a case such as this," he said in a re- port that echoed his caution. To the rdlief of Kansas Attorney. General Carla J. Stovall, Little- worth rejected Colorado's exten- sive arguments that it could not be held liable for damages under the 11th Amendment to the Constitu- tion, which-gives states immunity from certain lawsuits. The master turned "instead to. a 1987 Supreme Court ruling in a dis- pute between New Mexico and Texas,,a case.in which\Te.Nas even- tually won $14 million in damages for water diverted from its borders by New Mexico. But Littleworth said Kansas' complaint about the Colorado wells was "unduly harsh." Most of those Colorado Wells dug after the com - pacere "lawfully 'drilled at a, tim leis wells were ilnregii fated," he declared. It wasn't until 1973 that the state issued rules that attempted;ko regulate them. "Howev4r, if Colorado was slow in coming tb grips with well devel- opment, so was Kansas" he wrote. It; didn't begin issuing well permits until 1978, five years after Colora- do. "This is not a case in which Colo- rado deliberately set out to reap the benefits of a willful failure to perform its obligations under the compact," Littleworth wrote. Nei- ther state was immediately aware of the violations and it took sophis- ticated computer modeling by Kansas to discover the extent of its water losses. "Moreover, while Kansas should be made whole with respect to past violations of the compact, it is also appropriate that the remedy not result in a windfall," he told the high court. Littleworth concluded "that, if a suitable remedy in this case should include money damages, those damages should be based upon Kansas' loss rather than any gain to Colorado, subject to the overrid- ing consideration that the remedy provide a fair and equitable solu- tion." Claim is whittled down That reasoning has forced Kan- sas to reduce some of its early sug- gestion`s about a $100 million victo- ry into smaller numbers, Under Littleworth's logic, the state cut its claim for $62 million to about $57. million. When Littleworth said he would differentiate damages between 1950 to 1968 — "when neither state was aware Colorado was breaching the compact" — from damages af- ter 1968, Kansas trimmed another $19 million from its request. But according to its brief filed earlier this year, Kansas will ask the high court for more. "Kansas' reply can be summed up in a single sentence," it. de- clared. "Kansas should receive a complete remedy for its losses, no more and no less." The Justice Department has filed a brief with the high court supporting - Littleworth's recom- mendations. That has placed Colo- rado on the defensive. When the high court ruled again -st Colorado in 1995, then state Attorney General Gale Nor- ton, now secretary of the Interior, expressed concern about the weight the justices had. given the special master. "The tenhency.in complex factu- al. cases is for the reviewing court to accept the determination of the I ower court," she said. F OA