Kansas v. Nebraska (126-Orig)

argument 126-Orig

Kansas v. Nebraska

Supreme Court of the United States 1h 0m 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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Why does Kansas want the Supreme Court to enforce stronger water‑compact incentives on Nebraska?

John G. Roberts 0:00

You'll hear argument first this morning in case number 126 on the original docket, Kansas versus Nebraska and Colorado. Mr. McAllister.

Mr. McAllister 0:10

Mr. Chief Justice, and may it please the Court, Kansas seeks to ensure that Nebraska has effective incentives to comply with its compact obligations every year, including the years when water is scarce. To achieve that goal, Kansas asked this Court to take two measures- First, award a significant amount of disgorgement for Nebraska's massive gain from its compact violation. And second, decline to rewrite the detailed and complicated settlement agreement that the parties reached in 2002, an agreement that is full of compromises and concessions on all sides. Ultimately, Kansas wants to receive the water to which it is entitled year in and year out, including especially when water is scarce. The best way to achieve that is to impose significant disgorgement for Nebraska's massive gain

Mr. McAllister 1:02

and leave any changes to the accounting procedures to the parties and to the process that has been created under the compact, the RRCA. I'd like to start with the accounting procedures argument. Nebraska and the Master suggest that the Court should rewrite the way we calculate Nebraska's consumption of imported water supply, but Kansas disagrees that that's appropriate here for several reasons. First of all, that agreement itself was a complex set of concessions and compromises. The model is at best an estimation of what's going on in the basin. No one actually knows, perhaps can know, how much imported water comes over from the plat or how much actually gets consumed. The parties were aware of the very phenomenon that the master and Nebraska focus on.

John G. Roberts 1:53

What if we know roughly what the amount of extra water I don't know what the word liability on Nebraska is. What if it were way off? What if the formula resulted in Kansas getting 50 percent more water than the parties anticipated? Still no authority to revise the formula?

Mr. McAllister 2:13

Well, Your Honor, I think if the argument is there's a mistake, then we have to find an actual mistake. That's what justifies the extraordinary remedy of reformation.

Unknown 2:23

And I thought it was agreed that the compact itself, doesn't govern imported water, which this procedure covers. So if it's not within the compact itself, then how can it stand?

Mr. McAllister 2:47

Well, Your Honor, it's not as black or white as the Master said. By implication, the compact does not cover imported water. It never actually uses the words imported water. It talks about the virgin water supply. And it's certainly the party's goal to try to exclude the imported water from the calculation, but we did that very deliberately with the imported water supply credit, which is very substantial and which Nebraska gets.

Unknown 3:10

But I thought that the parties were not aware of the error. that proved beneficial to Kansas. So you say that there were many compromises, tradeoffs, but in this particular result, the parties were not aware that the accounting procedures would include this imported water.

Mr. McAllister 3:37

Well, I disagree with that statement, Your Honor. They were aware that it could. There may not have been awareness of the magnitude potentially of the situation and whether, in fact, it would arise. But the parties, there's evidence, for example, Colorado's expert was asked, when did you first realize this could happen under the model? And he said, about 15 minutes after I looked at it. The Kansas expert also recognized it was possible. All of this is an estimation. And what happens, in our view, is Nebraska is saying, well, now we think we've come up with a better way to more accurately measure this based on new information, new modeling techniques that may be available. But there's a mechanism for making those changes, and it's through the RRCA process.

Mr. McAllister 4:21

It wasn't a mistake. They just think they've got a better way to do it now.

4:25

Right.

Antonin Scalia 4:25

What is that mechanism? What does that process entail?

Mr. McAllister 4:29

That process entails the chief water officers of each state, and they meet regularly, and they can and have considered changes to both the accounting procedures and the model.