• Jennifer Heywood

BWJ Attorneys Appear Before the United States Supreme Court

On October 14, 2014, Tom Wilmoth and Don Blankenau appeared before the United States Supreme Court in a hearing concerning the interstate water litigation, Kansas v. Nebraska and Colorado, No. 126 Original. Wilmoth and Blankenau, “The Aqualawyers,” represented the State of Nebraska along with David Cookson and Justin Lavene from the Nebraska Attorney General’s office. The case was filed by the State of Kansas in May of 2010 against the State of Nebraska for alleged violations of the 1943 Republican River Compact (“Compact”). The Compact, which is an interstate contract, effectively divides the entire flow of the Republican River (an interstate river) among the states of Colorado, Kansas and Nebraska for beneficial consumptive use. Kansas alleged that Nebraska overused its allocations in 2005 and 2006 and sought $80,000,000 in damages, the permanent retirement of 300,000 acres of irrigated lands, and the appointment of a “River Master” to direct Nebraska’s future water management efforts.

Nebraska never disputed that it violated the Compact by overusing its allocations but, in its initial filing, argued the damages demanded by Kansas were excessive. Nebraska urged the Court to accept jurisdiction of the case based not on the Kansas claims alone, but on Nebraska’s claim against Kansas that the Compact’s accounting procedures incorrectly charged Nebraska with the use of water from the Platte River. To correct that problem, Nebraska urged the Court to accept jurisdiction and order the adoption of proposed accounting changes developed by the Nebraska Department of Natural Resources. The Court agreed to hear the case and appointed a Special Master to serve as a trial judge and prepare a formal “Report” with recommendations for the consideration of the full Court.

In April of 2011, William J. Kayatta, a noted attorney from Portland, Maine, was appointed as the Special Master and formally opened the proceedings. Over a nearly three-year period, Special Master Kayatta coordinated discovery, heard motions, held telephonic and live hearings, and ultimately conducted a trial to take all relevant evidence and argument. On November 15, 2013, the Special Master issued his Report to the Supreme Court. In his Report, the Special Master found for Nebraska and recommended that the Court adopt the accounting changes. The Special Master also recommended a damage award of $5.5 million dollars to Kansas and denied Kansas any further relief. The Special Master’s Report and all pleadings can be found at:

In accordance with historical practice, the U.S. Supreme Court invited the parties to file “exceptions” to any aspects of the Report to which they disagreed. Nebraska urged the Court to accept the full Report with the exception of the damage award which included $1.8 million above actual damages to Kansas farmers. Nebraska argued that the facts of the case did not warrant an award of exemplary damages. Kansas took exception to the damage award, which they argued for the first time, should include treble damages. The inclusion of such damages would thereby substantially increase the total amount of damages over the $5.5 million recommendation. Kansas also argued that Nebraska’s accounting change should be rejected even though they agreed that Nebraska is charged with the consumption of non-Compact water. The Court heard over an hour of argument from the two States and the United States which urged the Court the accept the Report as written. The Court took the matter under advisement and will issue a final order based on the Special Master’s Report. The Court’s final order is expected within several months.

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