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<br />. <br /> <br />. <br /> <br />. <br /> <br />91 <br /> <br />Page 5 <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. Kansas v. Colorado, United States Supreme Court, No. 105, Original. <br /> <br />Issue: What is the proper remedy for Colorado's past violation of the Arkansas River <br />Compact? <br /> <br />Decision: Special Master Arthur Littleworth issued his final report on damages, There are <br />no significant 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 eftects 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 />Discussion: This case has been in litigation since Kansas sued Colorado in the U,S. Supreme <br />Coutt 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 filed exceptions and responses <br />to the other's exceptions. The U.S. jumped in with a briefin opposition to both states' objections <br />and supporting the Master's recommendation. We have requested leave to respond to it. We <br />believe we have several strong legal arguments relating to sovereign immunity and prejudgment <br />interest. Oral arguments on these issnes were held March 19th before the Supreme Court. <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 determined, <br /> <br />8. KlInslls v. Nebraska, United States Supreme Court, No. 126, Original. <br /> <br />Issue: Have Nebraska, Colorado. and Kansas wells violated the Republican River <br />Compact'? <br /> <br />Decision: The Special Master ruled on some preliminary motions agreeing with <br />Colorado that the determinations of the Compact Administration from 1959-1994 are <br />conclusive and binding on the states. This ruling significantly reduces issues at trial, as <br />well as the amount of damages for which Colorado could be liable. The Special Master also <br />found that the Compact does not entitle one state to consume any water allocated to <br />'lDother Stllte. This decision is narrowly tailored around the Republican River Compact <br />