BOARD01445

• Board Meeting Date: 11/19/2001
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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Court ruled that prejudgment interest should begin to accrue in 1985, not 1969. This has the
effect of reducing the damages through 1994 to about $20 million. e

Several issues still remain to be tried: whether Colorado was in compliance in 1997, 98,
and 99 and how future compliance should be determined. The states have discussed future
compliance and are presently far apart on how it should be determined. No trial date is set.

Attorney General Ken Salazar and Kansas AG Carla Stovall agreed to try once
more to achieve a comprehensive settlement of the case. The two states contracted with
former Montana AG Joe Mazurek to serve as medi~tor. The Colorado "team" met with
the mediator on September 26. Representatives of ~olorado and Kansas accompanied the
mediator on a one-day air tour of the Arkansas Riv~r basin on September 29. Both states
prepared confidentialmemoranda setting forth their positions, and the parties held a
mediation meeting in Kansas City on November 5 and 6. Two more mediation meetings
are scheduled to take place before the stay of proceedings granted by the Special Master
expires on December 31, 2001.

7. Kansas v. Nebraska and Colorado, United Stat~s Supreme Court, No. 126, Original.

Issue: Kansas filed an original action against Nebraska in the U.S. Supreme Court in
1998, alleging that Nebraska had violated the Republican River Compact by allowing post-
compact wells to consume more water than allowed under the Compact. Nebraska filed a motion
to dismiss, claiming that no groundwater was allocated under the Compact. Kansas argued that
the Compact includes both alluvial and Ogallala Aquifer groundwater. Colorado's position was
that the Compact includes alluvial, but not Ogallala, groundwater. Special Master McKusick
issued a report recommending to the Court that the Compact restricts the compacting states'
consumption of all ground water - alluvial and Ogall;a1a - that depletes stream flow in the
Republican River Basin. The Supreme Court simply denied Nebraska's motion to dismiss,
without ruling on the alluvial/Ogallala distinction. On July 31, 2000, Nebraska filed a cross-
claim against Colorado, alleging overpumping and Compact violations. In our counterclaims
against Nebraska and cross-claim against Kansas, we alleged both downstream states are
violating the Compact and injuring Colorado by their overpumping.

Discussion: We filed a brief on the effect and V~lidity of affirmative defenses on October
2, taking a middle ground between Kansas and Mebraska, although disagreeing more with
Kansas, On October 19 the Special Master issued Memorandum of Decision No.3, ruling
that none of the affirmative defenses Nebraska asserted for the 1959-94 period were valid.
He based his rulings on the pleadings, however, l)nd expressly made no ruling on the legal
applicability of those defenses to the 1995 and onwards period, so our legal position is not
affected. The decision also implicitly makes an important ruling on Kansas' claims. The
Master quotes Kansas' complaint that Nebrask~'s overuse has deprived Kansas of its full
entitlement, and states that Kansas "seeks, and ~ay seek, nothing more" than damages for
failure to receive its full allocation due to Nebra$ka's overuse. Because all the evidence
we're aware of shows that Kansas received its ftl.ll mainstem allocation in all but three or
four years, this limits Kansas' damages considerably. Kansas had previously suggested

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