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<br />. <br /> <br />. <br /> <br />. <br /> <br />Page 5 <br /> <br />prejudgment interest be awarded from 1969 to the date of judgment. He did not calculate the. <br />amount of damages in the report, but ordered the states to confer to try to agree on the amount of <br />damages that would be awarded if the Supreme Court follows his recommendations. The states <br />did so and were very close in their estimate of damages through 1994 (in 1998 dollars) based on <br />the report: between $37 and $38M. Oral arguments before the Supreme Court on these issues <br />were held March 19,2001. <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 determined. The states have discussed future compliance <br />and are presently far apart on how it should be determined. In addition, Kansas recently <br />requested pennission to bring the Winter Water Storage Program back into the case and seek <br />additional replacement water. The Special Master denied Kansas' request. No trial date is <br />set. <br /> <br />7. Kansas v. Nebraska and Colorado, United States Supreme Court, No. 126, Ori!:inal. <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 Colorado <br />that the determinations ofthe Compact Administration from 1959-1994 are conclusive and <br />binding on the states. This ruling significantly reduces issues at trial, as well as the amount of <br />damages for which Colorado could be liable. The Special Master also found that the Compact <br />does not entitle one state to consume any water allocated to another State. This decision is <br />narrowly tailored around the Republican River Compact and distinguishes other compacts. <br />Further, the Master found that a complaining state need not show injury to obtain prospective <br />injunctive relief from the Court. <br /> <br />Discussion: Kansas filed an original action against Nebraska in the U.S. Supreme Court in <br />1998, alleging that Nebraska had violated the Republican River Compact by allowing post- <br />compact wells to consume more water than alJowed under the Compact. Nebraska filed a motion <br />to dismiss, claiming that no groundwater was allocated under the Compact. Kansas argued that <br />the Compact includes both alluvial and Ogallala Aquifer groundwater. Colorado's position was <br />that the Compact includes alluvial, but not Ogallala, groundwater. On January 28,2000 Special <br />Master McKusick issued a report recommending to the Court that the Compact restricts the <br />compacting states' consumption of all ground water - alJuvial and Ogallala - that depletes <br />stream flow in the Republican River Basin. The Supreme Court simply denied Nebraska's <br />motion to dismiss, without ruling on the alluvial/Ogallala distinction. However, the Court's <br />ruling will have the practical effect of allowing a trial on the impacts of all groundwater <br />pumping. Detennining Ogallala impacts will require a complex technical trial with extensive <br />modeling. Working closely with this office, the State Engineer has contracted with experts in <br />the fields of surface water hydrology, groundwater modeling, land use practices, and GIS <br />services. <br /> <br />On July 31, 2000, Nebraska filed a cross-claim against Colorado, alleging overpumping and <br />Compact violations. In our counterclaims against Nebraska and cross-claim against Kansas, we <br />alleged both downstream states are violating the Compact and injuring Colorado by their <br />overpumping. The Special Master has set a very aggressive trial preparation schedule, with trial <br />