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<br />. <br /> <br />. <br /> <br />. <br /> <br />8 <br /> <br />Page 5 <br /> <br />together. Trout Unlimited has been allowed to intervene, and now hasrequested participation in <br />the settlement discussions. Its interest in settlement - as opposed to litigating to make the Forest <br />Service demand more water - is not clear, and the objectors have refused to include TU in the <br />negotiations. The technical committee still hlts work to complete and negotilttions are still <br />on hold. <br /> <br />Discussion: See discussion for Division 2 case for general background. It is still too early in <br />the process to assess whether settlement is likely in this division. <br /> <br />7. Kltnsas v. Colorado, United States Supreme Court, No. lOS, Orillinal. <br /> <br />Issue: What is the proper remedy for Colorado's past violation oCthe Arkansas River <br />Compact? <br /> <br />Decision: Special Master Arthur Littleworth issued his final report on damages. He ruled <br />for Kansas on some, but not all, of the disputed issues. On the critical issue of prejudgment <br />interest, he recommended that prejudgment interest not be awarded for the period from 1950- <br />1968, because of the general lack of knowledge about the effects of well pumping in both states, <br />but that prejudgment interest be awarded from 1969 to the date of judgment. He did not <br />calculate the amount of damages in the report, but ordered the states to confer to try to agree on <br />the amount of damages that would be awarded if the Supreme Court follows his <br />recommendations. The states did so and were very close in their estimate of damages through <br />1994 (in 1998 dollars) based on the report: between $37 and $38M. <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 $2IM. By comparison, our evidence in <br />1998 dollars indicates a much lower damage aWlll'd. Both states filed exceptions and responses <br />to the other's exceptions. The U.S. jumped in with a brief in opposition to both states' objections <br />and supporting the Master's recommendation. We believe we have several strong legal <br />arguments relating to sovereign immunity and prejudgment interest. Oral arguments on these <br />issues were held March 19th before the Supreme Court. We are waiting for a decision, which <br />could come any time between now and the end of June. <br /> <br />Several issues still remain to be tried: whether Colorado was in compliance in 1997, 98, and 99 <br />and how future compliance should be detennined. The states have discussed future <br />compliance and are presently far apart on how it sbould be determined. In addition, <br />Kansas recently requested permission to bring the Winter Water Storage Program back <br />into the case and seek additional replacement water. We are opposing tbis. No trial date is <br />set. <br />