NEBRASKA v. WYOMING

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Argument of Dennis C. Cook

Chief Justice Rehnquist: We'll hear argument next in Number 108 Original, Nebraska v. Wyoming and Colorado.

Mr. Cook.

Mr. Cook: Thank you, Mr. Chief Justice, and may it please the Court:

This case is an original action brought by the State of Nebraska against the State of Wyoming in 1986 involving the equitable apportionment of the North Platte River.

Questions involving the North Platte are not new to the Court.

The North Platte was equitably apportioned by the Court in 1945, and unlike the case of Kansas v. Colorado that you've just heard, the Court is not called upon in this case to decide questions of fact.

Instead, the Court has before it exceptions of the special master's report on Nebraska's third motion to amend its 1986 petition, and Wyoming's first motion to amend its 1987 counterclaims.

Unknown Speaker: So there's been no trial before the... the master hasn't found facts and reached any conclusion.

We're still waiting to go to trial.

Mr. Cook: That's correct, Your Honor.

Wyoming brings four exceptions.

The first regards the recommended denial of Wyoming's first amended counterclaim and cross-claim, second the announced intent to have a trial on issues below Tri-State Diversion Dam, despite the exclusion of that in other parts of his ruling, third, the inclusion of Horse Creek in the claims Nebraska can litigate, and fourth, the inclusion of the groundwater issue in the litigation.

The decision on the issues raised by the parties' exceptions is crucial, now, to break this endless circle of debate about which claims are in this case, what the geographic limits of this case are, and that decision then will instruct the parties and will shape the course of trial in the future.

My argument will focus on first the unfairness of the special master's recommendation to deny Wyoming's first counterclaim and first cross-claim, and second, upon the impact of the special master's proposed trial plans, the impact those plans will have on the certainty and stability of the Court's 1945 apportionment that ended Nebraska's apportionment at Tri-State Diversion Dam.

With regard to the special master's recommendations on Wyoming's first counterclaim and first cross-claim, Wyoming believes that it is unfair, on the one hand, to deny a trial or any affirmative relief at this stage on Wyoming's claims that Nebraska and the United States circumvent the apportionment, when on the other hand the Court and the special master would entertain a trial on very similar issues raised by Nebraska with regard to the development of tributaries in Wyoming.

To get to the point where the special master did to deny Wyoming's first counterclaims, he saw too much in a decision in 1993 of this Court that said there are no current limits on the State of Nebraska's diversions in this pivotal reach of the river between Whalen Diversion Dam and Tri-State Diversion Dam.

He found that that answered the question completely with respect to Wyoming's counterclaims, but it did not.

Wyoming's counterclaim is that Nebraska circumvents.

Now it is that the United States participates in the circumvention, but nonetheless, Wyoming argues that they violate the apportionment.

Nebraska in 19... throughout this case and part of the 1993 decision, ruled that... or argued that Wyoming violated the apportionment by constructing projects on tributaries in Wyoming.

The Court ruled indeed there are no restrictions on those tributaries, but yes, Nebraska, you can come forward and seek to modify the decree and to add those restrictions.

The Court has now similarly found that there are no limits on Nebraska's diversions, but it's Wyoming's position that the Court has not rejected the possibility that Wyoming could seek to have those restrictions added, that definition of--

Unknown Speaker: Well, you know, I'm a little confused because I thought that in Wyoming's requested amended counterclaim and first cross-claim that Wyoming was seeking to alter the 75 percent-25 percent apportionment approach.

Mr. Cook: --That's not correct, Your Honor.

Unknown Speaker: That is not correct?

Mr. Cook: That is not Wyoming's purpose.

Wyoming's purpose is to stop the circumvention of the decree.

Unknown Speaker: Did the master seem to think that that is what the first amended counterclaim and cross-claim was seeking to do?

Mr. Cook: I believe that's correct.

I believe he focuses on the type of amendment that the Court might enter, how it would amend the 1945 decree, rather than the question of whether it should be amended, and where Wyoming is at at this point is the request to go to trial to seek the need to amend the decree.

Unknown Speaker: Well, Wyoming does want to seek an amendment, and wants to change the 75-25 percent apportionment?

Mr. Cook: No.

Unknown Speaker: No?

Well then--

--Well, what would the amendment be?

I mean... I'm sorry.

That's my question.

If you answer no, what kind of an amendment do you want?

Mr. Cook: Your Honor, we would add to the 75-25 apportionment further definition of Nebraska's water right, and what... and the reason I say that, the basis for the Court granting jurisdiction over the circumvention claim as you've announced--

Unknown Speaker: Well, by virtue of imposing some quantitative limitation?

Is that what you're seeking, a quantitative limitation?

Mr. Cook: --That's very likely, Your Honor.

Unknown Speaker: Well, then that is different than the approach taken under the decree of the percentage appointment, so the master may be right.

Mr. Cook: It is an addition to that approach, but let me explain why it's appropriate for the Court to consider that, and it's appropriate because in 1945 the United States brought the proposition to the Court that without a further definition in terms of quantity instantaneous diversion rates imposed on Nebraska's apportionment, that they would indeed circumvent the decree, or the apportionment.

The Court said, we won't speculate that Nebraska will do that, and we see no need to go beyond the 75-25 split of the natural flow at this point in time, but if that case develops, you may come back to the Court and ask for those additional... that additional definition on Nebraska's apportionment.

And that's the basic foundation, the unanswered question, or the reserved question the Court had agreed early on in 1987 to accept and allow Wyoming to pursue in its counterclaim, and our first counterclaim, amended counterclaim, is virtually the same counterclaim we brought to you in 1987, Your Honor.

Unknown Speaker: Do I understand you correctly that one possible amendment that might satisfy you would be an amendment so the decree would read something like this:

Nebraska is entitled to X percent up to so many acre feet, so that there would be an acre feet limitation which in fact would be, I suppose, a limitation on the percentage.

That would then give Wyoming the advantage that if there were excess usable water, that Wyoming in effect would be able to either keep it or more easily claim it, so long as Nebraska got its so many acre feet.

Is that what it would boil down to?

Mr. Cook: I think that's a clear characterization of where this case could end up, Your Honor.

Unknown Speaker: But that, as Justice O'Connor says, whether it should be entertained or not, that would be a reconceptualization of the decree.

Mr. Cook: That's correct, Your Honor, and let me suggest to the Court that as we've said in our briefs and throughout this amended pleadings phase that there's something different between the decree and the apportionment.

The apportionment is to protect lands and the irrigation of lands that received water from that critical reach of the river.

The apportionment ends at Tri-State Diversion Dam.

The decree is merely a tool to implement that apportionment, and Nebraska... and the Court has accepted and we recognize that we will go to trial for Nebraska to try to amend, to add injunctions against Wyoming to change that decree to give full effect to its apportionment, to bring a quantity... to ensure that a quantity of water becomes available in that critical reach.

Unknown Speaker: Other than this dispute that we've discussed over quantity and percentages, does the first exception also involve a dispute as to the waters that are subject to the reapportionment, or is that not part of the disagreement here?

Mr. Cook: I don't believe that's part of the disagreement on the first counterclaim.

Unknown Speaker: In other words, what we're concerned with is the pivotal reach area, and there's no question but that the canals are part of that?

Mr. Cook: That's correct.

The point that we make is that the Court has passed on this question.

There has been no change since 1987, when you agreed to accept this claim, and there's no reason to reverse the Court's decision.

Quite frankly, in 199--

Unknown Speaker: I'm still slightly mixed up.

As I read the amendment, your first counterclaim seems to mix up two things.

What you seem to ask for is, we'd like a certain quantitative limitation, i.e., Nebraska gets no more than what they need for beneficial use--

Mr. Cook: --Correct.

Unknown Speaker: --not a percentage limitation.

But then it says, the reason that we want that is because to do the contrary would be in excess of the volumetric limitations or diversion limitations that are fixed in paragraph IV of the decree, so that sounds as if what you're saying, the decree requires that.

And that I think is what might have explained the master saying, look, you brought this action to enforce the decree, not to modify the decree.

If you want to go bring a different action and say some other rule requires us, not the decree, but we want a new decree or something, and we want to now decide they're only going to get so many acre feet, or whatever it is, then go do that, but this is quite mixed up and contrary to the way you started out, and contrary to what the Court said, where it said the decree, this Court said is a percentage allocation, not an absolute allocation.

Am I right in thinking that's how the master's thinking?

Mr. Cook: He very well could be thinking that.

Unknown Speaker: Well then, what's wrong with that thinking?

Mr. Cook: The what's wrong is that Wyoming has always sought injunctions to prevent the future circumvention, the continued circumvention of the decree.

Wyoming always posed the thought that there would be something new added to the decree to accomplish its purpose, so we've not... we use the word 1993 decision.

Pardon me?

Unknown Speaker: Maybe this would get at the... why didn't you make your first amended complaint the following: conceding for the sake of argument that the decree has nothing to do with any absolute limitation in volume, we now make a new complaint, and this is our complaint.

Our complaint is, we want you to limit the amount of money they can take... the amount of water they can take to an absolute limit of X million, or beneficial use.

Why didn't you write it that way?

Mr. Cook: I don't know.

We clearly had that in mind, Your Honor, but we don't want to presume what the remedy would be, necessarily, at the beginning.

Let me suggest, thought, that one of the real... another problem is that the Court has, or the special master recommends a decision on the merits of this claim after there's been clearly an understanding that even peripheral issues surrounding Wyoming's counterclaims require factual development to get at, and neither of the parties sought summary judgment in the prior proceedings, because there are questions of material fact in dispute about Wyoming's counterclaims, therefore, we're caught up in a situation where we will now be... lose forever the opportunity to bring a circumvention claim if you adopt the special master's recommendation.

Unknown Speaker: Mr. Cook, do I understand correctly that the circumvention claim is not entirely out of the case as the special master sees it?

Didn't he say, although he was disallowing the counterclaim, that you could make defensive use of that matter?

Mr. Cook: Right.

He suggests that we can bring it... we can defend against Nebraska's claims with essentially the same proof, and our point is that if the case is going to have that evidence, or that type of evidence in front of it, and the Court will have that kind of evidence in front of it anyway, what is to be gained by limiting the remedies that would be available to Wyoming using that same proof, or that same type proof.

Further, I've never been fond of structuring my case in a responsive manner when it would rely on certain claims being brought by Nebraska to defend against.

That would prevent me from maybe getting the full picture on defense from the Court.

Unknown Speaker: I'm interested in Wyoming's fourth cross-claim which the master had recommended allowing to be made, but the United States and Nebraska oppose that, and would you mind addressing that a little bit?

The fourth cross-claim includes an allegation that the United States has not operated its upstream reservoirs in accordance with various private contracts that exist for their operation.

Mr. Cook: Wyoming's--

Unknown Speaker: And why should that claim be included in this dispute?

Mr. Cook: --Because the United States has brought the operation of its Federal storage facilities and its ability to deliver water under its contracts into this case when it argued that Deer Creek should not be built because it would in fact impact that operation.

Unknown Speaker: Well, is Wyoming a party to any of those contracts?

Mr. Cook: No, Wyoming isn't a party, and that's why this case, there is a private suit going on, but that's why this case and this Court is a more appropriate forum, because the State parties and equitable apportionment underlies or is involved in this whole matter of interpretation of Federal contracts and Federal law.

Unknown Speaker: But at this point, the master thought there was no evidence of... that Wyoming was getting less of the natural flows than it otherwise would, so the master didn't see... doesn't demonstrate, at least, any need for the fourth cross-claim.

Mr. Cook: The master, we agree with his proposition on the fourth cross-claim.

Unknown Speaker: Well, I know he thought it should be allowed, but he also noted that at this juncture there's no evidence.

Mr. Cook: Well, there's no evidence at all in this case, Your Honor.

Unknown Speaker: I presume Wyoming would plan to introduce some evidence if it's allowed to proceed on that counterclaim.

Mr. Cook: In fact we have... in the process of summary judgment proceedings have affidavits that indicate the type of injury Wyoming will produce.

Unknown Speaker: Could you just give me a quick summary of that?

Who gets hurt in Wyoming by what the National Government is doing?

Mr. Cook: Two types of users, those that are regulated in priority because the Federal reservoirs are unnecessarily depleted more than they should be, priority regulation, and prohibits--

Unknown Speaker: They're at the end of the line--

Mr. Cook: --That's correct.

Unknown Speaker: --and if the water's gone they get left.

Mr. Cook: And second, the Wyoming users in the pivotal reach are subject to more frequent shortages of water.

I think I can sum up our proposition on that as that the United States cannot make the distribution of Federal storage a central issue in this case and then suggest those issues are more perfectly decided somewhere else.

I'd like to reserve my remaining time.

Unknown Speaker: Very well, Mr. Cook.

Mr. Tymkovich, we'll hear from you.

Argument of Timothy M. Tymkovich

Mr. Tymkovich: Mr. Chief Justice, and may it please the Court:

Colorado today joins in Exception 2, filed by Wyoming, which seeks to limit the scope of these proceedings to ripe claims that address the issues of new development and supply that the Court considered in its 1993 opinion.

Exception 2 seeks to exclude from the consideration in this case issues relating to nonirrigation season flows and wildlife issues that are not a part of the case.

Colorado really has two points to make.

One is that the Court has already ruled previously that such matters should not be included in this case, and secondly, even if the Court were to think that they may play some role in the case, they're not ripe for adjudication in this proceeding.

Unknown Speaker: You're joining in which exceptions here, Mr.--

Mr. Tymkovich: Exception 2, Your Honor.

Unknown Speaker: --Of which--

Mr. Tymkovich: Of Wyoming.

Unknown Speaker: --Exception 2 of Wyoming.

Thank you.

Mr. Tymkovich: Twice before, this Court has been asked by Nebraska to expand the scope of proceedings to include nonirrigation season flows.

First, in 1988 Nebraska asked for a general global apportionment of the water resource to include downstream flows far beyond the scope of the 1945 decree.

In 1988, the Court denied that request.

Again, in 1992, Nebraska once again sought to expand the scope of the proceeding to include those claims.

Again, in the 1993 ruling, the Court again agreed that those issues should not be a part of the case.

The special master, the United States, Colorado and Wyoming, all who have looked at those issues, have concluded that those issues are not ripe for adjudication in these proceedings, and we would like the Court today in this ruling to affirm that those issues should not be heard as we go to trial in the case.

The reasons for that are simply, first of all the special master has clearly articulated twice in both the second and third interim reports that those issues are not ripe.

The United States agreed with that in their presentation last summer in considering... in consideration of the amended proceedings.

There have been no changed circumstances from the Court's earlier rulings till today that would merit the expansion of these proceedings.

Furthermore, many of these issues are being resolved or addressed in other forums, and would not be appropriate for consideration in this original proceeding.

Unknown Speaker: Is it your concern that the evidence on wildlife as it affects the irrigation season flows just expands the litigation in the same way that the special master disclaims when he refuses to allow the evidence for all other purposes?

Mr. Tymkovich: That's correct.

We think the special master closed the front door on the claim, apparently, by denying the Count IV expansion.

Through the back door he's let in all the evidence and all the consideration of that claim in the proceedings anyway, so what he's taken away on the one hand he's given back to the parties on the other.

Unknown Speaker: But underlying your objection seems to be the assumption that the seasonal flows that you're concerned with are requisite for irrigation uses only.

That's not what the compact says, is it?

Mr. Tymkovich: Those uses were not evaluated under the 1945 decree, and what the Court's 1993 opinion, what the proceedings to date indicate is, how do you analyze the supply issues, the new development upstream in Wyoming and what their impact is on the pivotal reach of the North Platte River?

Those are the issues in the case, and the Court has never opened the door for consideration of downstream new uses, new demands, as it affects this case, so that would be a remarkable expansion of the proceedings.

to permit that aspect of the case.

Unknown Speaker: Why do you say it would let in all the evidence?

I suppose it would let in evidence of effect on wildlife, and so on.

Does it let in every bit of evidence on irrigation claims which do not yet... or which do not exist with respect to the off season?

Mr. Tymkovich: There's been a suggestion by the United States in their briefs that a limited inquiry would be not improper in this case, and the special master in his report says limited inquiry would be appropriate.

We think, however, that an evaluation of the effect on wildlife usage and nonirrigation season flows would open this proceeding to a very expanded and complex evaluation of the--

Unknown Speaker: Well, it might do that, but you said it would let in all the evidence that was... that would have been kept out under the earlier part of the decree saying we don't get into the nonirrigation season.

Why does it let in all of the evidence?

Mr. Tymkovich: --Because if the Court goes... permits the case to proceed with an evaluation of effects several hundred miles to the East of the pivotal reach, then you're also going to have to evaluate the effect of Nebraska's conservation and waste practices and many other issues that were specifically excluded previously in the case, so in that way you get to many issues that were... where the Court--

Unknown Speaker: Well, many, but not all, I suppose.

Mr. Tymkovich: --I think it really is the question of ripeness and the scope of the proceedings, because it would be a very expanded proceeding.

I think everybody would concede that this case would be far different than it is if the Court were to grant that exception and limit the scope of the proceedings.

Unknown Speaker: How could we say in advance that the master's wrong in saying that the wildlife might relevant, it might turn out to be relevant?

I mean, apparently the size of the stream has gone down from about 70 percent or something to under 10, 20 percent of what it was, that there are wildlife endangered if you don't... you have to have some water in there, and whatever water they'd have in the winter may mean there's less in the summer.

I mean, it's not difficult to think of relationships.

How can we say that he's wrong in saying if it turns out to be relevant, I'll let it in?

Mr. Tymkovich: I think there is a matter of relationships, but that's not this case, and the special master himself, in the third interim report and in the oral argument last summer, indicated that those claims were not ripe for these proceedings.

That's not to say that they won't be in the future.

Unknown Speaker: I might not understand it.

I thought he was saying, we're not going to have a special complaint based on wildlife, but if it turns out that this evidence of wildlife harm is relevant to what we're doing, I'm going to let it in.

Mr. Tymkovich: I don't think there's a functional distinction between permitting the trial of those issues in this proceeding as opposed to granting or denying Count IV of the claim, which specifically addresses it.

There will be no difference in the trial in that event, Your Honor.

Unknown Speaker: Well, I take it he wants to be confident that his judgment is neither too narrow nor too broad, so he wants to have this evidence to inform him as to the effect of the ruling that he's asked to enter.

Mr. Tymkovich: Again, that goes to the scope of the proceedings and whether these claims are now ripe for consideration, even regardless of their relevancy to the proceeding, because the special master has acknowledged that those issues cannot bear on the injury in this case.

Unknown Speaker: Yes, but what I was thinking, it's just like a trial judge normally.

Very often somebody says, let's... he's says, I don't know.

I'll wait and see.

If it turns out to be relevant, I'll let it in.

Otherwise, I won't.

And it seemed to me roughly that's what the master was doing here.

If this looks as if it might be relevant, then I'll let it in later, sure, fine.

If it turns out not to be, object at that time.

Mr. Tymkovich: I think Your Honor is suggesting that it's the equivalent of a motion in limine, and it really goes far beyond that, because really it makes the difference of whether or no Colorado is in this case at trial and whether the special master is then going to look at the entire basin-wide effects of wildlife and endangered species issues.

For example, downstream in the Big Bend reach here, it is also part of the South Platte Basin, so there are far... there are issues that range far beyond the mere enforcement, interpretation, and modification of the North Platte decree.

I am not saying that those issues are not relevant to a proceeding.

They are not ripe for this proceeding, and it would be improper for the Court, based on its prior rulings and the existing scope of the proceedings, to open the door for that type of claim.

It would really be an about-face on the Court's previous limitations on geography and time.

It would expand the geographical scope of the case and expand the temporal scope of the case in a way the Court has never done before.

Colorado's second argument is that as a prudential matter these issues are not justiciable or not ripe at this time.

Even Nebraska concedes that, because they've not filed an exception to the special master's failure to grant their Court IV, and I think the reason that Nebraska has done that is that they feel they can try these issues in the back-door manner in which the special master has permitted the evidence.

More importantly, these issues should and must be resolved critically in another agency and another forum.

The endangered species and wildlife issues are currently a part of at least three proceedings, one involving Endangered Species Act interpretations on the Deer Creek and the Grayrocks Reservoirs, the issues are also in the FERC proceedings involving Lake McConaughy, and the three States have involved in a mutual cooperative approach through their Governor's office to try to accommodate and resolve the wildlife issues.

So importantly, I think this case ought to defer to those agencies and defer to that process to let it take its course, rather than fix in stone or enshrine in a decree of this Court the wildlife and endangered species needs involving the North Platte.

Unknown Speaker: Well, speaking of deference, Mr. Tymkovich, isn't a kind of special deference owed to the master in structuring the trial?

I mean, he's not opining on any issue of law.

He's not really making any factual determination.

He's really just trying to decide how best to let in the evidence and what should connect with what.

Mr. Tymkovich: It is, however, up to this Court to define clearly the scope of the proceedings, and the case with this type of evidence, with this claim, will be far broader and more complex than the case without it, which I think is what the Court was doing when it ruled in 1993 in denying those previous claims and excluding the scope of the proceedings to those issues.

Thank you.

Unknown Speaker: Thank you.

Mr. Simms, we'll hear from you.

Argument of Richard A. Simms

Mr. Simms: Mr. Chief Justice, and may it please the Court:

Mr. Justice Breyer, I want to go back to a question you asked of Mr. Cook.

You asked, I believe, something like, why didn't you just come to the Court on the theory that conditions had changed rather radically since 1945 and ask the Court to do what we think you're doing now, and that is, changing the apportionment formula?

The answer to that question, and it's an answer that I think Wyoming is fully aware of, the answer to that question is, had they done that, the Court would have had to start essentially with a tabula rasa.

That would mean that you would start all over with today's equities in all of their forums, and redo the entire case.

That's the reason they did not want to do it.

There are two points that I would like to make.

First, I would like to explain why the so-called geographical scope of this case is a conceptually ineffective way of addressing the proposed amendments, and second I would like to explain that Wyoming is attempting to convert the percentage apportionment into a mass allocation based on beneficial use limitations, an argument made by Wyoming and rejected in 1945.

In that regard, I would also like to explain why the Court should not upend long-settled expectations that have become an intrinsic part of the apportionment since 1945.

The first point I want to make goes to Wyoming's second exception.

That is, to Master Olpin's understanding that he must evaluate all of the interests in Nebraska against which the threat of injury would be posed by new development in Wyoming.

Wyoming and Colorado's argument in this regard is that you should not look at any uses below Tri-State Dam or outside the irrigation season.

Accordingly, Wyoming and Colorado are asking you not to take cognizance of admittedly existing interests outside the irrigation season or below Tri-State Dam that would or could be affected by the intended development.

The Court addressed this issue in 1993, and I believe rejected Wyoming's and Colorado's argument.

The Court held that Nebraska had no preexisting rights on Deer Creek or on the Laramie River to interpret or enforce.

At the same time, however, the Court provided Nebraska with the opportunity to establish new development on Deer Creek and on the Laramie River so that those equities can be balanced against the threat of injury from new development in Wyoming.

Special Master Olpin has stated that he must balance all of the relevant equities.

Wyoming is simply seeking to limit Nebraska's equities.

In order to reach an equitable balance, we believe that the Court must juxtapose all of the equitable interests today in order to adjust the decree to meet present day conditions--

Unknown Speaker: Well, how do you see this line that the master proposes?

He wouldn't allow Nebraska to just claim outright some right to protect the wildlife uses, and yet he indicates that some of that evidence can come in under the proposed amendments, and just how do you see that working?

Mr. Simms: --I think you'd have to look at it not as a change in the scope of the case, as Wyoming would like you to see it, but as having everything to do with the scope of the potential injury.

What Mr. Olpin has done is to look at discrete proposed individual developments in Wyoming, think that certain injury is going to flow from any given development... for example, if a reservoir, a new reservoir would store and deplete nonirrigation season waters, which is what reservoirs, after all, are designed to do.

You cannot assess the injury without looking at the nonirrigation season impacts of that reservoir, and they could be hydropower, they could be wildlife, they could be downstream irrigation.

All he is doing is letting... conceptually letting his mind flow from the potential consequences of the injury that would arise from new development in Wyoming.

He isn't looking at the so-called geographic scope of the case in 1945.

Does that answer your question, Justice O'Connor?

Unknown Speaker: Well, it's quite vague, and I still don't understand what would come in, as opposed to what would be admitted if your State were allowed to amend the complaint, as it proposed.

Mr. Simms: I don't think Master Olpin knows just what would come in, but what he doesn't want to do is put any preordained, arbitrary limits on the scope of the potential injury.

He wants to be able to assess what actually happened as a result of new development in Wyoming.

Unknown Speaker: How is that any different from expanding the geographic scope of the case?

Is it--

Mr. Simms: In one sense--

Unknown Speaker: --anything other than that?

Mr. Simms: --In one sense it might expand the geographic scope of the case, but it would do so only as a response to the injury being proposed by Wyoming.

It wouldn't do it on the basis of anything that Nebraska sought to do.

It would only be a reaction to what we necessarily had to meet as a result of proposed new development in Wyoming.

Unknown Speaker: Well, I don't see--

Mr. Simms: I think he... I think the distinction he draws is between the scope of the injury on the one hand, which could be like this, and the scope of the case on the other, and all he's saying is that the two need to be equated in terms of their latitude when you make an initial analysis of the downstream equities and weigh those in the balance with the proposed--

Unknown Speaker: --But normally when you define the scope of a case you try to define it in such a way that all of the injuries that seem to you significant for that case will be within the geographic reach that you've decided to examine.

Mr. Simms: --But the fact of the matter--

Unknown Speaker: And to say, well, we've decided to examine only this geographic reach, but of course, if there are injuries beyond that we must take them into account, at least defensively, is simply to say, we didn't draw our geographic scope broadly enough to begin with, and therefore we have to expand it.

Mr. Simms: --Well, I think the geographic scope, Justice Scalia, is really arbitrary in advance of the evidence.

There is no geographic scope.

The... you don't know what's going to happen as a result of proposed new development in Wyoming which will have depletive adverse effects downstream.

Unknown Speaker: But I thought we--

Mr. Simms: Those effects could go to Whalen, they could go to Tri-State, they could go to Bridgeport, they could go further downstream.

The master doesn't know how far they're going to go, but he wants to be able to look at all of those effects without just cutting things off at Tri-State because that's how conditions obtained in 1945.

Unknown Speaker: --And how does that differ from the Count IV, Exception IV that was denied?

Why doesn't the same argument apply to that?

You have to look at the whole picture.

Mr. Simms: Well, I think the same argument should have applied to the fourth cross-claim.

Unknown Speaker: I thought there was quite a difference, but don't say I'm right if I'm not right.

I thought that the fourth count asked directly to apportion nonirrigation season flows, that that was the subject.

Is that right?

Mr. Simms: I think we're confusing two things.

Unknown Speaker: I'm confusing--

Mr. Simms: I think Justice Scalia's talking about the fourth cross-claim.

You're talking about the fourth... our fourth count.

Am I--

Unknown Speaker: --I'm talking about the cross-claim.

Sorry.

Mr. Simms: --Okay.

The fourth cross-claim goes to the storage side of the issue.

Back in 1945 when the matter was addressed, everybody was fully aware when Wyoming argued that you should place beneficial use limitations on Wyoming, that you had to apportion storage water and natural flow at the same time.

In this regard, Wyoming made a statement in its response brief at page 19... let me quote it real quickly.

"No one asserted in 1945, as Wyoming does now, a need for the Court affirmatively to require the Bureau's compliance with Federal law. "

"Such compliance was assumed. "

"Thus, the issue that Wyoming's fourth cross-claim would bring was not before the Court in 1945. "

Well, in 1945, that statement was most certainly not true.

What Wyoming did in 1945 was to assert that storage water in section 8 of the Reclamation Act as well as the related Federal and State law had to be brought before the Court's attention and had to actually be placed in the decree, in special provisions in the decree to make the decree enforceable as against the storage water contracts and the storage water deliveries.

Wyoming's view at the time was, if those provisions were not placed in the decree, that the only redress would be found in Federal district court.

That is, the contracts would be enforced as it was assumed that they would be enforced, but that could be done only among the proper parties and in the proper forum.

We do believe that there is an inconsistency between the master's recommendation with respect to the first counterclaim on the one hand and the fourth cross-claim on the other, but I think an analysis of what he did and a close evaluation of the briefs would lend itself more to our view than his on that matter.

The second point I would like to make is that the Court rejected the theory of beneficial use limitations in 1945 for three sound reasons.

First of all, the Court found that this river fluctuates at polar extremes.

In the pivotal reach, the Court found that you had to have some sort of--

Unknown Speaker: Is this addressed to a particular exception?

Mr. Simms: --This is addressed to Wyoming's first exception, Mr. Chief Justice.

Unknown Speaker: Wyoming--

Mr. Simms: Yes.

Unknown Speaker: --Thank you.

Mr. Simms: The Court found that you had to have some formula that was responsive to changes in supply.

The second reason the Court did not adopt the beneficial use limitations is that the Court knew that storage was essential to doing any kind of mass allocation based on beneficial use.

Third, the Court did not adopt the beneficial use theory because that would have required placing limitations on individual irrigation districts and private canals that were not in the case, and the Court simply doesn't do that kind of stuff in parens patriae actions.

Those three conditions have not changed.

The river still fluctuates wildly, you would still have to apportion both storage water and natural flow, and you don't define private rights in parens patriae cases.

Given that problem, what distinguishes the so-called inconsistency argument that Wyoming has made, what distinguishes what we're proposing and what Wyoming is proposing, is that Wyoming has something in the nature of a res judicata problem, or at least a repose and finality problem.

Finally, this Court has always been reluctant to reopen an apportionment, and you've been reluctant to do that for good reason.

Once an apportionment is adopted, and this one is some 50 years old, all kinds of socioeconomic institutional reliance develops in layers on that apportionment.

In this case, Wyoming wants to completely upend that apportionment and replace it, and we do not think that that would be a wise idea.

We do not want you to upset long settled expectations on the North Platte.

Finally, I would point out that in all of these pleading amendments Nebraska wants no new water.

Wyoming does.

Nebraska wants to maintain the status quo, Wyoming wants to upset the status quo.

Nebraska wants to... I see my time is up.

Thank you very much.

Unknown Speaker: Thank you, Mr. Simms.

Mr. Minear.

Argument of Jeffrey P. Minear

Mr. Minear: Thank you, Mr. Chief Justice, and may it please the Court:

The United States excepts to the special master's allowance of Wyoming's fourth cross-claim, which alleges that the United States has failed to operate Federal reservoirs in accordance with the reclamation laws and storage water contracts.

We believe that it would be inappropriate to address that claim in this original action for three related reasons going to the law, the parties, and the availability of another forum.

First, this Court's 1945 decree does not govern Wyoming's claim.

Paragraph VI and XII(b) of the North Platte Decree explicitly state that the decree shall not affect storage water or in any way interfere with the Federal Government's operation of water storage facilities.

The Court included those paragraphs in recognition that the Federal reclamation projects predated the 1945 apportionment, that private parties had contracted for storage water from those projects, and their rights in the operation of the projects were fixed by those contracts.

Simply put, the decree at issue in this proceeding does not address the distributior of storage water because the contracts between the Bureau and the individual water users govern who receives that water.

This Court was mindful of the Bureau's need to store water in priority with other users to satisfy its storage water contracts in 1945, but the Court made absolutely clear that the decree would not affect the delivery of storage water.

Instead, any disputes would continue to be governed by the legal mechanisms that were already in place and available to the contracting parties.

Unknown Speaker: Mr. Minear, why can't the special master just take that into account when you make your case?

Mr. Minear: Well, the problem here is that Wyoming is seeking affirmative relief affecting the allocation of storage water, and that is exactly what the North Platte Decree currently states.

The decree does not govern.

Instead, Wyoming has to rely on the individual contracts between the Bureau and the water users, and those are matters that we believe are better left to a different forum.

Unknown Speaker: Does Wyoming agree with this characterization of the case?

Does it join issue with you on this argument, or would it quarrel with your formulation?

Mr. Minear: Well, Wyoming, it's a bit like hitting a moving target here, because Wyoming has moved back and forth in terms of exactly what its pleading amounts to, but I think the best source of this is Wyoming's pleading itself, and it is framed completely in terms of the allocation of storage water.

Paragraph 31 at E-11 says the United States has failed to operate the Federal reservoirs in accordance with applicable Federal and State laws, and has failed to abide by the contracts governing the use of storage water.

Specifically, the United States has allocated storage water in a manner, et cetera.

It then goes on to make various specific claims.

But the fact of the matter is that they're challenging how we can allocate storage water, and the storage water, you must remember, is defined in the decree, and it is only water in addition to what is natural flow.

When the Bureau provides water to the individual water users, it makes releases from the reservoirs, and in accounting for that water, it always ensures that the natural flow portion of the river is passed through the reservoir, and the storage water is only allocated thereafter, and this is all primarily an accounting procedure that only takes place after the water has been released.

Unknown Speaker: Can you tell me how specifically you address Mr. Cook's answer to my question, and that is that Wyoming simply cannot... if I understand it Wyoming simply cannot litigate its claim insofar as it relates to Wyoming users with the least priority without, in effect, taking up this very issue of the propriety of the Federal storage water practice.

Mr. Minear: I think that is just incorrect.

Again, remember that the natural flow requirements are satisfied first when we do the water accounting, and the only question then is who gets the storage water.

Now, the dispute here is not really between Wyoming and the United States, and this brings me to my second point.

It really is between two different classes of irrigators, the North Platte irrigators and the Warren Act contractors, and they're mentioned specifically in the amended pleading here in the fourth cross-claim.

The problem that we have here is--

Unknown Speaker: Well, then you are... are you saying that in fact the extent of availability of water for storage, and hence its effect on the Wyoming users with the least priority, can be determined in this action without bringing in the issue of the practices of the United States in storing and releasing its storage water?

Mr. Minear: --No, Your Honor.

We're saying that the river operates under two separate regimes.

There's the natural flow, which is taken care of by the decree.

In addition, we have storage water that supplements the available sources for the various irrigators.

The storage water is governed by the contracts between the Bureau and the individual water users.

They have those... we are simply a deliverer of water for those parties.

They have--

Unknown Speaker: The point made is that the decree was drawn with a view to what would happen to the storage water and the nonflow water, that the decree assumed certain dispositions, and to distort those dispositions is necessarily, therefore, to distort the decree.

Mr. Minear: --No, Your Honor, because the decree... and the Court in 1945 knew these contracts were in place.

They knew that there was a mechanism with which to enforce those contracts, and they assumed if any disputes arose over the enforcement of the contracts, or the allocation of those waters, those waters would be allocated... would be dealt with separately.

That's--

Unknown Speaker: But the contracting parties may not have a... may not be hurt in any way here.

The claim here is that a third party is being hurt by the way the contracts are being administered, and it may be that the contracting parties have nothing to complain about and hence will never litigate.

Mr. Minear: --Well, if the contracting parties have nothing to complain about, it's very difficult to see how Wyoming could be a third party beneficiary of the contracts in some respects.

In fact, we think the problem is exactly the opposite, namely that the--

Unknown Speaker: Nonthird party beneficiaries, but independent individuals whose interests in effect are being foreclosed by a maladaministration of the contract.

Mr. Minear: --But the problem here, Your Honor, is that the contract water itself is already allocated in a sense.

It has been distributed by virtue of the compact, or by the contracts that have been entered into, and the natural flow is dealt with completely separately in the decree, and we just do not agree that there is any linkage between the effect of our allocation of storage water on the decree itself.

Now--

Unknown Speaker: Mr. Minear, you distinguish between the natural flow and the storage water.

Where does the storage water come from if it's not from the natural flow?

Mr. Minear: --Yes.

It comes from the nonirrigation season natural flow.

The water begins... according to the decree, the irrigation season ends in October, and beginning in October, the United States has the senior water rights for storage.

It takes all of the water, all of the inflows and puts it into storage during the nonirrigation season.

Unknown Speaker: Because it's not needed elsewhere.

Mr. Minear: It's not needed elsewhere, that's right.

Beginning in May, at that point the irrigation season begins, and any person that wants water can call for water upstream and the Bureau releases water to those parties as they need it.

If they do not need it, the water will continue to go into storage, rather than to allow it to simply go down to Nebraska and be wasted, and then, if there is insufficient water during the year, that storage water is used to make up whatever natural flow... whatever is needed in addition to natural flow.

Unknown Speaker: And some of those parties who draw on that water are Wyoming parties and some are Nebraska parties, is that it?

Mr. Minear: Yes, and there are--

Unknown Speaker: What if the Nebraska parties who normally would draw upon that flow have found that they can get water elsewhere, and perhaps even cheaper, and therefore don't care if the Corps of Engineers is running this thing wrong, and if they are not getting their contractual rights, they don't care about it?

Mr. Minear: --Then there is more water for everyone else, because they draw--

Unknown Speaker: Well, for everyone else, but not for Nebraska.

But not for Nebraska, because other usable water in Nebraska is being used by this Nebraska contracting party, so the State of Nebraska is hurt even though the party to the allocation of the stored water contract is not hurt.

Mr. Minear: --I'm afraid I'm not following your question here with respect to how the water is allocated.

Maybe I--

Unknown Speaker: I'm saying one of the parties to this contract can be getting water elsewhere, and therefore not give a darn about whether the contract is being implemented properly.

Mr. Minear: --Yes, that is correct.

Unknown Speaker: That would hurt Nebraska, even though it doesn't hurt the contracting party.

Mr. Minear: Well, it might not hurt... well, I think what happens in that situation, the contractors pay what amounts to a fixed cost for their irrigation water whether they use it or not.

If they do not use it, then that water is available for both Nebraska and Wyoming parties to draw upon.

That is simply the way the water is being administered.

The problem we have here, I think, is that Wyoming is not the appropriate party to seek enforcement of the legal or contractual rights.

Unknown Speaker: As I understood it, Nebraska says to Wyoming, hey, you're not giving us enough water.

We're getting 75 percent all right, but it's 75 percent of nothing.

There's no water in the river.

And then Wyoming says, yes, yes, but there would be 75 percent... there would be a hell of a lot of water in the river if only the United States was doing what it promised to do in the contract in which we premised this whole decree upon, and if that's the case, or something roughly like it is the case... I'm exaggerating it... I don't understand why Wyoming couldn't defend against Nebraska by saying, look, it's not our fault, it's the United States' fault, and they should live up to their contract and then there wouldn't be a problem, and I don't see anything in the decree that says they can't say that.

Mr. Minear: Wyoming is suing the United States with respect to the allocation of storage water.

The one thing that--

Unknown Speaker: Alloc... that's right--

Mr. Minear: --it says does not govern... shall not affect the storage--

Unknown Speaker: --That's... no, that isn't saying you can't make the United States live up to its promises in the contract, where their failure to do so wrecks the whole premise of the decree.

Mr. Minear: --And in--

Unknown Speaker: What it says is that storage water shall not be affected by this decree.

Mr. Minear: --Yes.

Unknown Speaker: As I read that, that means that they don't intend for this decree to govern storage water.

That's... I mean, we're allocating the river.

We're not allocating storage water.

Mr. Minear: Yes, and the storage water instead is governed by the contracts.

If Wyoming seeks... has some complaint about how we are operating the river, operating the reservoirs, they can bring an APA action against the Bureau.

And this brings me to my third point, and that is that there is another alternative dispute mechanism or forum available for all the parties that makes far more sense--

Unknown Speaker: Is this the district court action in Wyoming?

Mr. Minear: --A district court action would be available.

Unknown Speaker: Yes.

We're told there is such an action and the Government has pleaded sovereign immunity.

Mr. Minear: We raised a sovereign immunity defense in that case.

We have withdrawn that upon further consideration, so there is no--

Unknown Speaker: Consideration of the argument in this case?

[Laughter]

Mr. Minear: --What?

Unknown Speaker: On consideration of the forthcoming argument in this case?

Mr. Minear: On consideration of the issue... on consideration of the issue itself.

In this case, our objection.

First of all, let me make it clear, the United States has never argued that these issues cannot be litigated in district court.

Our objection in the Goshen litigation was that the United States was sued under a provision of reclamation law that allows joinder of the United States.

Our objection was, you need to have all the necessary parties there in order to resolve this dispute.

Subsequently, eight of the irrigation districts, eight of the thirteen irrigation districts joined into this suit.

Now, looking at this with all the parties there, our objection is rather technical in terms of the fact that the United States was sued first, not... rather than sued later, so that is the reason why we have withdrawn that objection.

But overall, I think the important thing to recognize in this suit is that it does provide a forum for all of the necessary parties to litigate the issue.

The contractors themselves have a very strong interest in the protection of their contracts.

They currently are not parties to this suit.

This suit has been involved... this original action has been going on for 8 years, and is rather complex, and there are certainly going to be claims, if you allow the fourth cross-claim to go forward, for those parties to intervene in this action.

You will have to deal with that issue as well.

Unknown Speaker: The State as well?

Can the State get into that action?

Mr. Minear: The State did not get into the Goshen district court litigation.

They were not involved in the district court.

Unknown Speaker: Can they?

Mr. Minear: Could they?

Yes, they could join.

I think that they... well, let me put it this way.

They could certainly file an amicus brief.

I'm not sure that they have the interest sufficient to indicate that they would qualify under Rule 24 for purposes of intervention, and that's the same problem that we believe that they have here.

They simply are not a party to the contract, and I think their allegations with respect to their interest in these contracts are very, very vague.

The problem we have here is that there is a forum that is available for the parties that are most interested in the enforcement of the contracts to litigate the claims with respect to how that allocation of storage water ought to be performed.

Unknown Speaker: Is it your view that the parties to those contracts would have a right to intervene in this proceeding?

Mr. Minear: We think it might be difficult for them under this Court's precedents.

This Court's decisions, they do discourage intervention by private parties in ongoing original actions, but our concern is more of a practical one, and that is the fact that sooner or later this case should go to trial, and we should have the parties that... we should have the necessary parties.

If we're going to add this fourth cross-claim in this forum rather than in another alternative forum, it is going to complicate this litigation tremendously.

Unknown Speaker: Do you also envision any potential conflict in the adjudication in this original action and in the district court if you--

Mr. Minear: Well... excuse me.

Unknown Speaker: --if the counterclaim is in--

Mr. Minear: The... actually the conflict--

Unknown Speaker: --the cross-claim?

Mr. Minear: --Excuse me.

The conflict that we think is going to arise is the fact that there are Warren Act contractors and North Platte contractors in Wyoming, and the same with respect to Nebraska.

This is illustrated in the map at Appendix B of the special master's report.

So neither one of these States can represent all of the contractors' interests that are involved here.

We think it would make more sense, now that this case has been fully briefed in the district court, to allow that proceeding to go forward first.

If at some later point that question... the issues that are resolved there implicate issues with respect to the decree, Wyoming can come back and seek an amendment of the decree, or seek whatever type of relief that they might think is appropriate at that point, but this... these issues have been litigated in the district court.

We think that that litigation should run its course rather than trying to complicate this litigation still further.

As a separate matter, the United States objects to Wyoming's exceptions to the special master's report.

Wyoming is mistaken at the outset in characterizing this suit as an action to define the existing apportionment, but regardless of characterizations, the special master properly concluded that Wyoming's first counterclaim and first cross-claim should be denied insofar as they seek to replace this Court's percentage-based apportionment formula.

Thank you.

Unknown Speaker: Thank you, Mr. Minear.

Mr. Cook, you have 2 minutes remaining.

Rebuttal of Dennis C. Cook

Mr. Cook: Thank you, Mr. Chief Justice, and may it please the Court:

Last things first.

Issues in the GID case versus the issue in our fourth cross-claim, our fourth cross-claim is much broader.

It is our claim that the operation of the storage facilities was a predicate of the 75-25 apportionment, as Justice Breyer has noted, and therefore, as that predicate operation changes and is no longer according to law, or according to contracts, then that clearly skews the entire process, and quite frankly the Court left open the door to look at allocation and storage.

It did not foreclose that, and furthermore it has allocated storage in both paragraph III and paragraph IV of the decree.

Further--

Unknown Speaker: But wouldn't the interest of others who are not in this proceeding now be implicated if that cross-claim is adjudicated?

Mr. Cook: --The interests of others, all residents of the State, are implicated in this case any time we are here in the Court's original jurisdiction.

Unknown Speaker: But I mean the parties to the agreements.

Mr. Cook: They are, but in one respect we stand in judgment in parens patriae for the overall operation.

Individual disputes on individual years, individual grievances, those can be adjusted, but what we're talking about is the broader failure to follow the law that impacts the apportionment.

Let me say also that beneficial use is a predicate.

It was not necessary to say that word in the decree because it's such a fundamental concept that this Court has continued to recognize, and I say that because the opposite side of beneficial use is waste and misuse, and this Court has never sanctioned one State to waste and misuse water at the expense of another.

Finally, I agree that this Court is reluctant to open apportionments and revisit those.

I disagree that there is not an established apportionment at Tri-State that sets the established expectations of the parties.

Chief Justice Rehnquist: Thank you, Mr. Cook.

The case is submitted.

Unknown Speaker: The Honorable Court is now adjourned until tomorrow at 10:00.

Print this transcript Transcript: 

Argument of Justice O'Connor

Mr. O'Connor: I have the opinions of the court to announce in two cases in the first of them number 108 original, the State of Nebraska versus State of Wyoming comes to us on exception to an Interim Report of the Special Master.

The North Platte River rises in Northern Colorado and flows through Wyoming into Nebraska where it joins the South Platte to form the Platte River.

In 1934 Nebraska invoked our original jurisdiction by suing Wyoming to obtain an equitable apportionment of the waters of the North Platte River and the ensuing litigation culminated 11 years later in a decree of this court which did apportionment of flow the North Platte.

Then in 1986, Nebraska returned to this court, saying that Wyoming was threatening its equitable apportionment primarily by planning water projects on tributaries that have historically contributed significant flows to the North Platte.

We granted Nebraska leave to follow its petition allows Wyoming to file a counterclaim.

Nebraska and Wyoming later sought leave to amend their pleadings and we received all these matters to refer them to a Special Master.

The master is now reported and while we overrule all of the exceptions.

Wyoming has filed four exceptions to the master's recommendations, we overrule each of them.

Nebraska and United States have each filed a single and largely overlapping exception which we also overrule.

Justice Thomas has filed an opinion concurring in part and dissenting in part.