No. 126, Original: Kansas v. Nebraska





No. 126, Original


In the Supreme Court of the United States
OCTOBER TERM, 1998

STATE OF KANSAS, PLAINTIFF
v.
STATE OF NEBRASKA
AND
STATE OF COLORADO

ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE

SETH P. WAXMAN
Solicitor General
Counsel of Record
LOIS J. SCHIFFER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
ANDREW F. WALCH
EDWARD A. BOLING
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

In the Supreme Court of the United States
OCTOBER TERM, 1998

No. 126, ORIGINAL
STATE OF KANSAS, PLAINTIFF
v.
STATE OF NEBRASKA
AND
STATE OF COLORADO

ON MOTION FOR LEAVE TO FILE BILL OF COMPLAINT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE

This brief is filed in response to the order of this Court inviting theSolicitor General to express the views of the United States.

STATEMENT

The State of Kansas seeks leave to commence an original action to enforceits rights under the Republican River Compact, which was approved by Congressin the Act of May 26, 1943, ch. 104, 57 Stat. 86. See Add. 1a-13a. The Compactallocates the "virgin water supply" of the Republican River Basinamong the States of Colorado, Kansas, and Nebraska. See Compact Arts. II-IV(Add. 3a-7a). Kansas alleges that Nebraska has exceeded its Compact allocationby allowing pumping and consumption of groundwater that should be includedas part of the allocated water supply. See Compl. ¶ 7; Br. in Supportof Compl. 2. Nebraska responds that this Court should deny Kansas's motionfor leave to file a complaint because Kansas has failed to show that Nebraska'sactions have violated Kansas's rights or caused Kansas injury. See Br. inOpp. 5. Kansas does not seek relief against Colorado, and Colorado takesno position on Kansas's motion for leave to file a complaint. See Kan. Br.in Support of Compl. 2; Letter from First Ass't Attorney Gen. of Colo. tothe Chief Deputy Clerk of the Court (July 28, 1998).
A. The Republican River Basin
The Republican River Basin is a 24,900-square-mile watershed, approximately430 miles in length, that encompasses parts of northeastern Colorado (7,700square miles), southwestern Nebraska (9,700 square miles), and northernKansas (7,500 square miles). The Basin is drained by the Republican River,which is formed by the junction of two streams that originate in Colorado,the Arikaree and North Fork Republican Rivers. From that originating point,near Haigler, Nebraska, the Republican River flows easterly through Nebraskaand then southeasterly to Junction City, Kansas, where it joins the SmokyHill River to form the Kansas River. The Republican River Basin also includesnumerous smaller streams that flow into the Republican River. The Basin,which is part of the Great Plains, is sparsely populated. It contains fertilefarmland and typically receives from 18 to 30 inches of precipitation peryear. See Bureau of Reclamation, U.S. Dep't of Interior, Resource ManagementAssessment: Republican River Basin 3-6, 43, 44-48 (July 1996) (A copy ofthis report has been lodged with the Clerk of the Court.)
During the 1930s, the United States, as well as the States of Colorado,Kansas, and Nebraska, developed an interest in harnessing the water resourcesof the Republican River Basin. The Basin had experienced an extended drought,interrupted in 1935 by a deadly and destructive flood. In light of thoseexperiences, the federal and state governments examined whether the RepublicanRiver's spring flows could be impounded in reservoirs for flood controland released in the late summer and fall for irrigation. See H.R. Doc. No.842, 76th Cong., 3d Sess. (1940) (Corp of Engineers preliminary examinationand survey of Republican River); see also H.R. Doc. No. 195, 73d Cong.,2d Sess. 158-186 (1934) (Corps of Engineers preliminary examination andsurvey of the Kansas River, discussing irrigation potential in the RepublicanRiver Basin). Based on the Corps of Engineers' recommendations in HouseDocument No. 842, Congress authorized appropriations to construct the HarlanCounty Reservoir, in Nebraska, for flood control purposes. See Act of Aug.18, 1941, ch. 377, 55 Stat. 646.
The Interior Department's Bureau of Reclamation, which has primary responsibilityfor irrigation projects, also examined the Republican River Basin, relyingin part on the Corps' examination set forth in House Document No. 195, supra.See Bureau of Reclamation, U.S. Dep't of Interior, Project InvestigationsReport No. 41, at 1-2 (1940). The Bureau concluded that federal irrigationprojects were feasible. Id. at A-D (Synopsis). It indicated, however, thatthose projects should not be constructed until the three States had resolvedthe question of interstate allocation of the Basin's water resources. Id.at 1 ("To avoid expensive litigation as a result of possible conflictinguses of water in the various states, further developments for irrigationshould be preceded by a three-state compact or other similar agreement onthe use of water."). The States of Colorado, Kansas, and Nebraska,which had been discussing the possibility of an interstate compact for anumber of years, thereafter entered into negotiations to formulate an interstatecompact.1
B. The Compact Approval Process
In 1941, the States completed their negotiations and ratified a proposedcompact, which was then submitted to Congress for approval in accordancewith the Compact Clause of the Constitution, U.S. Const. Art. I, §10, Cl. 3. See S. 1361, 77th Cong., 1st Sess. (1941); H.R. 5945, 77th Cong.,1st Sess. (1941); S. Rep. No. 841, 77th Cong., 1st Sess. (1941). The Departmentof the Interior and the Federal Power Administration objected to the compactprimarily because it contained language curtailing federal jurisdictionover the Republican River. See Republican River Compact: Hearings on H.R.4647 and H.R. 5945 Before the House Comm. on Irrigation and Reclamation,77th Cong., 1st Sess. (1941).
The House Committee on Irrigation and Reclamation amended the House billin response to the federal agencies' objections, H.R. Rep. No. 1380, 77thCong., 1st Sess. (1941), but the Senate rejected the House amendments, 87Cong. Rec. 9606-9623 (1941). The Senate's proposed legislation prevailedin conference, and the Senate and the House approved the conference proposal.See H.R. Conf. Rep. No. 1878, 77th Cong., 2d Sess. (1942); 88 Cong. Rec.2408-2409 (1942); 88 Cong. Rec. 2813-2814 (1942). The President, however,vetoed the bill on the basis of the federal agencies' objections. See 88Cong. Rec. 3285-3286 (1942); H.R. Doc. No. 690, 77th Cong., 2d Sess. (1942)(veto message). The President explained that he "would be glad to approvea bill, which, in assenting to the compact, specifically reserves to theUnited States all of the rights and responsibilities which it now has inthe use and control of the waters of the basin." H.R. No. Doc. 690,supra, at 2.
Following the President's veto, Congress enacted legislation authorizingstate commissioners to conduct further compact negotiations and providingfor participation by a federal representative. See Act of Aug. 4, 1942,ch. 545, 56 Stat. 736. The state commissioners and the federal representativecompleted their negotiations on December 31, 1942, and the state legislaturesof Colorado, Kansas, and Nebraska promptly ratified the proposed compact.See Colo. Rev. Stat. Ann. §§ 37-67-101 et seq. (1990); Kan. Stat.Ann. § 82a-518 (1991); Neb. Rev. Stat. Vol. 2a, App. 1-106 (1995).The States then submitted the compact for congressional approval in accordancewith the Compact Clause and the Act of Aug. 4, 1942. Congress held hearings,considered reports favoring the proposed compact, and enacted legislationgranting congressional approval, which the President signed. Act of May26, 1943, ch. 104, 57 Stat. 86.2
C. The Republican River Compact
The Republican River Compact consists of eleven articles that set out amechanism for dividing the water supply of the Republican River Basin andaddress issues arising from the prescribed allocation.
Article I identifies the purposes of the Compact as follows: (1) "toprovide for the most efficient use of the waters of the Republican RiverBasin"; (2) "to provide for an equitable division of such waters";(3) "to remove all causes, present and future, which might lead tocontroversies"; (4) "to promote interstate comity"; (5) "torecognize that the most efficient utilization of the waters within the Basinis for beneficial consumptive use"; and (6) "to promote jointaction by the States and the United States in the efficient use of waterand the control of destructive floods." Add. 2a.
Article II clarifies the meaning of relevant terms. It defines the "Basin"as "all the area in Colorado, Kansas, and Nebraska, which is naturallydrained by the Republican River, and its tributaries, to its junction withthe Smoky Hill River in Kansas," and it incorporates by reference amap showing the Basin. Add. 3a. Article II defines the "Virgin WaterSupply" to be "the water supply within the Basin undepleted bythe activities of man." Add. 3a. And it correspondingly defines "BeneficialConsumptive Use" to be "that use by which the water supply ofthe Basin is consumed through the activities of man." Add. 3a.
Article III next specifies the "computed average annual virgin watersupply" of a series of specific drainage areas within the Basin, whichin aggregate amount to a total estimated water supply of 478,900 acre-feetper year. Add. 4a. Those computed averages, expressed in acre-feet of water,represent the historic virgin water supply originating above "the lowestcrossing of the [Republican River] at the Nebraska-Kansas state line."Add. 4a. The Compact relies on those historic water supply averages as thebasis for allocating future supplies among the States. Article III recognizes,however, that year-to-year flows may vary, and it accordingly states that"[s]hould the future computed virgin water supply of any source varymore than ten (10) per cent from the virgin water supply as hereinaboveset forth, the allocations hereinafter made from such source shall be increasedor decreased" proportionately. Add. 4a-5a.
Article IV sets out the allocation to each State, expressed in acre-feetper year, for each of the drainage areas that Article III identifies. Add5a-7a. Article IV allocates the entire estimated water supply set forthin Article III, giving Colorado an aggregate of 54,100 acre-feet per year(Add. 5a), Kansas an aggregate of 190,300 acre-feet per year (Add. 5a-6a),and Nebraska an aggregate of 234,500 acre-feet per year (Add. 6a-7a). Inaddition, Article IV recognizes that Kansas is entitled to "the entirewater supply originating in the Basin downstream from the lowest crossingof the river at the Nebraska-Kansas state line." Add. 6a.
Articles V through IX set forth various rights and obligations relatingto the allocation. Article V recognizes the continuing vitality of a priorjudgment of this Court, Weiland v. Pioneer Irrigation Co., 259 U.S. 498(1922), which involved a dispute between Colorado and a Nebraska irrigationdistrict over the district's diversion of water in Colorado for use in Nebraska.See Add. 7a. Articles VI through VIII allow a downstream State (or its citizens)to construct water storage facilities in an upstream State, provided thatcertain conditions are observed. See Add. 7a-8a. Article IX obligates theStates to administer the Compact through appropriate officials and "tocollect and correlate through such officials the data necessary for theproper administration of the provisions of this compact." Add. 8a-9a.It also provides that those officials "may, by unanimous action, adoptrules and regulations consistent with the provisions of this compact,"and it directs the pertinent federal agencies to assist state officialsin the collection and correlation of data. Add. 9a.
Articles X and XI address issues of federal authority that had promptedthe President's veto of the previous compact proposal. Article X statesthat nothing in the Compact shall (a) impair federal rights, power, or jurisdictionover waters of the Basin; (b) subject the United States to state taxes orrequire the United States to reimburse the States for lost tax revenuesresulting from federal water development projects; and (c) subject any propertyof the United States to state law that would not apply in the absence ofthe Compact. Add. 9a-10a. Article XI provides, in essence, that (a) anybeneficial consumptive use of the United States within a State shall becharged against the State's compact allocation; (b) when exercising itsparamount powers, the United States shall recognize, to the extent consistentwith the best utilization of the waters for multiple purposes, that beneficialconsumptive use is of paramount importance to the development of the Basin;and (c) the United States will respect valid, pre-existing, beneficial consumptiveuses. Add. 10a-11a.
D. Post-Compact Development
After approving the Compact, Congress authorized a system of federal waterdevelopment and management projects as part of the Missouri River BasinDevelopment Program. See Flood Control Act of 1944, ch. 665, § 9, 58Stat. 891. This Program, also known as the Pick-Sloan Plan, authorizes theArmy Corps of Engineers and the Bureau of Reclamation to construct and operatea coordinated system of reservoirs for multiple purposes, including irrigation,flood control, power development, fish and wildlife protection, and recreation.See S. Doc. No. 247, 78th Cong., 2d Sess. (1944).
Between 1945 and 1964, the United States constructed nine federal reservoirsin the Republican River Basin. The Corps of Engineers completed the previouslyauthorized Harlan County Reservoir in Nebraska (see p. 3, supra) and theMilford Reservoir in Kansas. The Bureau of Reclamation established fourwater resource development divisions, which include seven reservoirs inKansas and Nebraska. The Bureau's projects, operated in conjunction withthe Corps' Harlan County facilities, provide water to six irrigation districtsand service 136,528 acres of farmland in the Republican River Basin. TheCorps' Harlan County and Milford projects also support a variety of otherpurposes, including flood control, recreation, and fish and wildlife needs.See Resource Management Assessment: Republican River Basin, supra, at 4-5,13-23.

E. The Current Controversy
The Republican River Compact imposes limitations on the quantity of waterthat Colorado and Nebraska may divert from the Republican River and itstributaries, based on an apportionment of the "virgin water supply."In accordance with Article IX of the Compact, the States have designatedofficials to administer the Compact's allocation limits. Beginning in 1959,the States each appointed a representative to a three-member administrativebody, designated the Republican River Compact Administration (RRCA), tocompute the Basin's annual "virgin water supply," which wouldin turn allow the States to determine, retrospectively, whether each Statehad stayed within its annual allocation. See RRCA, First Annual Report forthe Year 1960 (April 4, 1961). The RRCA has since published and updatedformulas for computing both the virgin water supply and consumptive use.See RRCA, Formulas for the Computation of Annual Virgin Water Supply andConsumptive Use, August 19, 1982 (rev. June 1990).
Since 1959, the States have debated whether groundwater usage should beincluded in determining whether a State has exceeded its allocation. Kansashas asserted that groundwater usage should be included to the extent thatgroundwater development affects surface flow by syphoning water from theRepublican River or its tributaries or by otherwise reducing the water thatwould be available for diversion from the sources identified in the Compact.As part of its First Annual Report, the RRCA elected to include in its calculationsgroundwater that is pumped "from the alluvium along the stream channels."Committee on Procedure and Computation of Annual Virgin Water Supply, Formulasfor the Computation of Annual Virgin Water Supply 3 (Apr. 4, 1961). TheRRCA decided, however, not to include pumping from upland areas known as"table-lands." It concluded that "[t]he determination ofthe effect of pumping by 'table-land' wells on the flows of the streamsin the Republican River Basin must await considerably more research anddata regarding the character of the ground-water aquifers and the behaviorof ground-water flow before even approximate information is available asto the monthly or annual effects on stream flows." Ibid.
Since publishing its First Annual Report, the RRCA has been unable to makefurther progress on the appropriate treatment of groundwater under the Compact.In recent years, Kansas and Nebraska have strongly disagreed on the issue.Because the three-member RRCA can adopt regulations only through "unanimousaction," Compact Article IX (Add.9a), the RRCA has not resolved thedispute and has retained, virtually verbatim, the statement on groundwaterset forth in the 1959 annual report. See Formulas for the Computation ofAnnual Virgin Water Supply and Consumptive Use, August 19, 1982, supra,at 7. Indeed, apparently as a result of this dispute between Kansas andNebraska, the RRCA has ceased to calculate the virgin water supply and statecompliance with allocation limits. Compare Nebr. Br. in Opp. 16-17 withKan. Reply Br. 7-8.
Kansas now seeks relief from this Court. It asserts that Nebraska has violatedthe Compact by "allowing the proliferation and use of thousands ofwells hydraulically connected to the Republican River and its tributaries,"which has "resulted in the appropriation by the State of Nebraska ofmore than its allocated equitable share of the waters of the RepublicanRiver" and has "deprived the State of Kansas of its full entitlementunder the Compact." Compl. ¶ 7; see Br. in Support of Compl. 12-14.Nebraska argues that the Court should not exercise jurisdiction over thismatter because Kansas has failed to show that Nebraska's alleged actionshave injured Kansas, Br. in Opp. 9-16, and because Kansas may seek reliefthrough alternative means, id. at 17-21. Nebraska additionally asserts that"groundwater is not governed by the Compact." Id. at 10; see alsoid. at 20.
DISCUSSION
The United States submits that Kansas should be granted leave to file itscomplaint. Kansas alleges an interstate dispute of sufficient importanceto warrant this Court's exercise of its original jurisdiction, and thereis no other forum in which the controversy practicably can be resolved.The United States additionally suggests that this Court provide a mechanismfor deciding a potentially dispositive threshold legal issue-whether theRepublican River Compact restricts a State's consumption of groundwater-beforereferring the matter to a Special Master. Resolution of that legal issue,which could be placed before the Court through a motion to dismiss, wouldgreatly facilitate the disposition of a controversy that experience suggestsmight consume many years of litigation and many millions of dollars in expenses.
1. The Complaint Of Kansas Alleges A Controversy That Warrants The ExerciseOf Original Jurisdiction
This Court has original and exclusive jurisdiction over a judicial caseor controversy between States. See U.S. Const. Art. III, § 2, Cl. 2;28 U.S.C. 1251(a). That jurisdiction "extends to a suit by one Stateto enforce its compact with another State or to declare rights under a compact."Texas v. New Mexico, 462 U.S. 554, 567 (1983); see, e.g., New Jersey v.New York, 118 S. Ct. 1726 (1998); Kansas v. Colorado, 514 U.S. 673 (1995);Virginia v. West Virginia, 206 U.S. 290, 317-319 (1907). Nevertheless, theCourt has determined that its exercise of original jurisdiction is "obligatoryonly in appropriate cases." Mississippi v. Louisiana, 506 U.S. 73,76 (1992); see Nebraska v. Wyoming, 515 U.S. 1, 8 (1995); Texas v. New Mexico,462 U.S. at 570. In deciding whether to grant leave to file a complaintin a dispute arising under the Court's exclusive original jurisdiction,the Court examines "the nature of the interest of the complaining State,"focusing on the "seriousness and dignity of the claim." Mississippiv. Louisiana, 506 U.S. at 77 (internal quotations and citations omitted).The Court also considers "the availability of an alternative forumin which the issue tendered can be resolved." Ibid. Applying thosestandards, the United States concludes that the complaint of Kansas presentsa matter warranting the exercise of original jurisdiction.
a. In claiming that Nebraska is depriving Kansas of its lawful share ofthe water of an interstate stream, Kansas asserts a substantial sovereigninterest that falls squarely within the traditional scope of this Court'soriginal jurisdiction. See, e.g., Texas v. New Mexico, 462 U.S. at 567;Arizona v. California, 373 U.S. 546 (1963); Nebraska v. Wyoming, 325 U.S.589 (1945); Wyoming v. Colorado, 298 U.S. 573 (1936); Kansas v. Colorado,185 U.S. 125 (1902). Indeed, this Court has granted Kansas and Nebraskaeach leave to file separate original actions, which are currently pendingon this Court's original docket, raising comparable claims. See Kansas v.Colorado, 475 U.S. 1079 (1986) (No. 105, Original); Nebraska v. Wyoming,479 U.S. 1051 (1987) (No. 108, Original). Kansas's claims respecting theRepublican River are of similar "seriousness and dignity." Mississippi,506 U.S. at 77.3
Nebraska nevertheless opposes Kansas's motion for leave to file a complainton the ground that Nebraska's claimed violations and Kansas's alleged injuriesare not sufficiently demonstrated or serious to justify the exercise oforiginal jurisdiction. Br. in Opp. 7-17. Nebraska specifically argues thatthe records of the RRCA indicate that, "over the 55-year history ofthe Compact, Kansas failed to receive its total allocation of water onlyone time, in the drought year of 1992," id. at 11, and that, from 1992through 1995, "Nebraska consumed less than its allocation, even ifgroundwater use is included as Kansas alleges," id. at 15. See alsoid. at A1-A5.
The United States submits that Nebraska's reliance on the RRCA records ismisplaced and does not provide an adequate basis for denying Kansas leaveto file a complaint. Kansas and Nebraska agree that the Republican RiverCompact places enforceable limitations on the compacting States' consumptionof water that is directly diverted from streams within the Basin. But Kansas,unlike Nebraska, interprets the Compact also to place enforceable limitationson the consumption of water that is indirectly diverted from those streamsthrough pumping of groundwater that is "hydraulically connected tothe Republican River and its tributaries" in the sense that the pumpingreduces surface flow. See Kan. Compl. ¶ 7; Kan. Br. in Support of Compl.2; compare Neb. Br. in Opp. 10, 20. The gravamen of Kansas's complaint isthat Nebraska is violating the Compact limitations because Nebraska divertsboth surface water and groundwater, and Nebraska does not take into fullaccount the full effects of consuming groundwater in reducing surface flows.See Kansas Compl. ¶ 7.4
Nebraska cannot rely on the RRCA's past water supply and consumption recordsto show that Kansas has suffered no substantial injury because those recordsrely on formulas that take into account consumption of only groundwaterpumped from the alluvium of the Republican River and its tributaries, andnot consumption of all groundwater that might affect the surface flow. Seepp. 9-10, supra. The inclusion of non-alluvial groundwater would increasethe computed virgin water supply and potentially affect each State's allocation.Nebraska's derivative calculations are therefore uninformative on the matterthat Kansas has placed at issue: whether Nebraska is indirectly divertingsurface flow, in excess of its Compact allocation, by pumping non-alluvialgroundwater.5
At bottom, Nebraska's resort to RRCA records fails to confront the cruxof Kansas's argument. The RRCA's current methodology expressly does nottake into account the diversion of all groundwater that may reduce surfaceflow. If Kansas is correct that the Compact limits such diversions, thenNebraska's refusal to observe that limitation would result in a violationof the Compact. This issue presents a matter of sufficient seriousness anddignity to warrant exercise of this Court's original jurisdiction.6
b. Nebraska's suggestion that Kansas might resolve this dispute throughmeans other than an original action (Br. in Opp. 17-21) is also unpersuasive.Kansas and Nebraska disagree, at a fundamental level, on the meaning ofthe Republican River Compact, and none of the alternative fora that Nebraskaidentifies is capable of resolving that interstate dispute. Nebraska contends,for example, that Kansas might achieve its objectives if Kansas citizensor local water districts commence district court actions against Nebraskaofficials or citizens, or, alternatively, if Kansas builds upstream reservoirsto augment its water supply. Br. in Opp. 18-19. Kansas has brought thisaction, however, to assert its own sovereign rights, vis-à-vis Nebraska,arising from an interstate compact. The actions that Nebraska proposes wouldin no sense provide a forum for Kansas to assert its Compact rights. SeeMississippi v. Louisiana, 506 U.S. at 76-78; cf. Nebraska v. Wyoming, 515U.S. at 20-21.
Nebraska also suggests further negotiations and mediation. Br. in Opp. 19-21.As a general matter, we agree that this Court should consider whether theStates have attempted to resolve their dispute through negotiation or alternativedispute resolution techniques as an important factor bearing on whetherto exercise its original jurisdiction. But in this case, it is clear thatKansas and Nebraska have attempted consensual resolution and have deadlockedover the threshold question of whether the Compact limits groundwater pumping.Indeed, the deadlock over that issue has led to a breakdown in the operationof the RRCA, which has been unable to resolve that dispute. See Kan. Br.in Support of Compl. 7-10; Neb. Br. in Opp. 16-17, 19-21; Kan. Reply 7-10.
The RRCA considered the role of groundwater in its first annual meeting,and it decided to limit its diversion measurements to only alluvial groundwaterpumping because consideration of table-land groundwater pumping required"more research and data." Formulas for the Computation of AnnualVirgin Water Supply (April 4, 1961), supra, at 3. Since that time, the RRCA,which can act only through unanimous vote, has made no progress in resolvingthe issue. At the same time, the compacting States have moved further apart.Kansas now contends that the Compact should take into account all groundwaterconsumptive use that reduces surface flow, Br. in Support of Compl. 2, 7-9,while Nebraska asserts that groundwater pumping is not a subject of theCompact at all, Br. in Opp. 10, 20. The current deadlock presents a situationin which an important interstate dispute can be resolved only through theaction of this Court. See Texas v. New Mexico, 462 U.S. at 568-569.

2. Before Referring The Matter To A Special Master, This Court Should ResolveThe Threshold Legal Issue Of Whether The Republican River Compact RestrictsA Compacting State's Consumption Of Groundwater
Upon granting a motion for leave to file a complaint, the Court typicallydirects the defendant to file an answer and then, shortly thereafter, refersthe matter to a Special Master to conduct appropriate proceedings. See,e.g., New Jersey v. New York, 511 U.S. 1080 (1994); 513 U.S. 924 (1994);Nebraska v. Wyoming, 479 U.S. 1051 (1987); 483 U.S. 1002 (1987). In appropriatesituations, however, this Court has resolved preliminary or controllinglegal issues before, or in lieu of, referring the case to a Master. SeeUnited States v. Alaska, 499 U.S. 946 (1991); 501 U.S. 1248, 1275 (1991);503 U.S. 569 (1992); United States v. California, 332 U.S. 19, 21-24 (1947).We suggest that this controversy presents a situation in which the lattercourse should be followed.
Nebraska and Kansas disagree over a threshold legal issue: Whether the RepublicanRiver Compact places limitations on the right of a compacting State to consumegroundwater. Nebraska specifically asserts that the Compact imposes no suchlimitations. Br. in Opp. 10, 20. If this case were governed by the FederalRules of Civil Procedure, Nebraska would be entitled to test its theoryby moving to dismiss Kansas's complaint for failure to state a claim uponwhich relief may be granted. See Fed. R. Civ. P. 12(b)(6). See also, e.g.,2A J. W. Moore, Moore's Federal Practice ¶ 12.07[2.-5] (2d ed. 1996);5A C. A. Wright & A. R. Miller, Federal Practice and Procedure §§1355-1356 (2d ed. 1990). Although the Federal Rules are not strictly applicableto this Court's original actions, they provide a guide to the Court's proceedings.See Sup. Ct. R. 17.2. In this case, the Court may wish to apply the proceduresuggested by Federal Rule 12(b)(6) to facilitate the disposition of thisaction.
Specifically, we suggest that, if this Court grants Kansas leave to fileits complaint, the Court should grant Nebraska leave to file a motion todismiss, in the nature of a motion under Rule 12(b)(6), limited to the questionof whether, as a matter of law, the Republican River Compact limits Nebraska'sright to consume groundwater. Kansas could then respond to that motion,and the Court could decide that threshold legal issue. If the Court concludes-asNebraska has urged-that the Compact imposes no such limit, then the Courtcan promptly dismiss the action without consuming the time and expense ofappointing a Special Master. If the Court concludes that the Compact doesimpose such a limitation, or that resolution of that issue necessarily requiresdevelopment of facts outside the pleadings, then the Court can deny themotion and refer the matter to a Special Master to conduct the course offuture proceedings. In that situation, the Court's decision would providethe Master and the parties with definitive guidance on the appropriate scopeof those proceedings, which would assist the Master in managing discoveryand trial and might encourage renewed negotiations and settlement. See Texasv. New Mexico, 462 U.S. at 574-576.
The United States' experience with original actions involving interstategroundwater disputes, most notably Kansas v. Colorado (No. 105, Original)and Nebraska v. Wyoming (No. 108, Original), suggests that the proposedcourse would be highly desirable in this case. Interstate water disputespose complex trial-management problems once they proceed past the pleadingstage. Cf. Nebraska v. Wyoming, 515 U.S. at 8-9. The factual issues turnon complex questions of meteorology, hydrology, geology, engineering, andeconomics, which must be applied to thousands of square miles of variedterrain and land uses. The litigation, particular discovery and trial preparation,correspondingly tends to be extraordinarily complicated, time-consuming,and expensive. See, e.g., First Report of the Special Master in Kansas v.Colorado, No. 105, Original, Vols. I to IV (1994).7 At the same time, thecomplexity and high stakes of the litigation may encourage wasteful pretrialskirmishing far removed from the core controversy that prompted the lawsuit.8
We therefore believe that the Court should take advantage of proceduralmechanisms that may permit prompt resolution of a threshold legal issuethat divides the parties. The question whether the Compact limits groundwaterconsumption presents a discrete and straightforward issue of compact interpretationthat may be decided as a matter of law through familiar tools of compactconstruction. In resolving that legal issue, the Court would first examinethe text of the Compact. An interstate compact is both a contract and alaw of the United States. See Oklahoma v. New Mexico, 501 U.S. 221, 235n.5 (1991); Texas v. New Mexico, 482 U.S. 124, 128 (1987). Like other federallaws, if the text, read in light of its context, is unambiguous, it is conclusive.See, e.g., Kansas v. Colorado, 514 U.S. at 690 ("We conclude that theclear language of Article IV-D [of the Arkansas River Compact] refutes Colorado'slegal challenge."); see also Texas v. New Mexico, 462 U.S. at 567-568("our first and last order of business is interpreting the compact");see also New Jersey v. New York, 118 S. Ct. at 1735-1738; Central R.R. v.Mayor and Aldermen of Jersey City, 209 U.S. 473, 478-479 (1908). If theCourt finds the text ambiguous, it may also consider other reliable documentaryindicia of the parties' intent, including materials submitted to Congressin support of congressional approval. See Oklahoma v. New Mexico, 501 U.S.at 235 n.5; Texas v. New Mexico, 462 U.S. at 568 n.14; Arizona v. California,292 U.S. 341, 359-360 (1934). To the extent the parties' practical constructionof the Compact bears on its meaning, see New Jersey v. New York, 118 S.Ct. at 1760 (Scalia, J., dissenting), the Court may take judicial noticeof the RRCA's annual reports.9
Because this Court uses the Federal Rules of Civil Procedure as merely aguide to the conduct of original actions, it may tailor appropriate proceduresto facilitate its decision-making process. See United States v. Alaska,499 U.S. at 1248, 1275. We suggest that, if the Court decides to grant Nebraskaleave to file a motion to dismiss, the Court may wish to (a) specify theprecise legal question that the parties shall address; (b) set a schedulefor Nebraska to file its motion and supporting brief, for Kansas to fileits responsive brief, and for Nebraska to file a reply; and (c) impose appropriatepage limits for the briefs. If the Court elects to follow this course, theUnited States would file a brief as amicus curiae on the question posed.

CONCLUSION

The motion of the State of Kansas for leave to file a complaint should begranted. The Court may wish to grant the State of Nebraska leave to filea motion to dismiss.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General
Counsel of Record
LOIS J. SCHIFFER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
ANDREW F. WALCH
EDWARD A. BOLING
Attorneys

DECEMBER 1998

ADDENDUM

Act of May 26, 1943, Ch. 104, 57 Stat. 86

AN ACT

To grant the consent of Congress to a compact entered into by the Statesof Colorado, Kansas, and Nebraska relating to the waters of the RepublicanRiver Basin, to make provisions concerning the exercise of Federal jurisdictionas to those waters, to promote flood control in the Basin, and for otherpurposes.

Be it enacted by the Senate and House of Representatives of the United Statesof America in Congress assembled, That the consent of Congress is herebygiven to the compact authorized by the Act entitled "An Act grantingthe consent of Congress to the States of Colorado, Kansas, and Nebraskato negotiate and enter into a compact for the division of the waters ofthe Republican River", approved August 4, 1942. (Public Law 696, Seventy-seventhCongress; 56 Stat. 736), signed by the commissioners for the States of Colorado,Kansas, and Nebraska at Lincoln, Nebraska, on December 31, 1942, and thereafterratified by the Legislatures of the States of Colorado, Kansas, and Nebraska,which compact reads as follows:
"REPUBLICAN RIVER COMPACT
"The States of Colorado, Kansas, and Nebraska, parties signatory tothis compact (hereinafter referred to as Colorado, Kansas, and Nebraska,respectively, or individually as a State, or collectively as the States),having resolved to conclude a compact with respect to the waters of theRepublican River Basin, and being duly authorized therefor by the Act ofthe Congress of the United States of America, approved August 4, 1942, (PublicNo. 696, 77th Congress, Chapter 545, 2nd Session) and pursuant to Acts oftheir respective Legislatures have, through their respective Governors,appointed as their Commissioners:
M.C. Hinderlider, for Colorado
George S. Knapp, for Kansas
Wardner G. Scott, for Nebraska
who, after negotiations participated in by Glenn L. Parker, appointed bythe President as the Representative of the United States of America, haveagreed upon the following articles:
"Article I
"The major purposes of this compact are to provide for the most efficientuse of the waters of the Republican River Basin (hereinafter referred toas the 'Basin') for multiple purposes; to provide for an equitable divisionof such waters; to remove all causes, present and future, which might leadto controversies; to promote interstate comity; to recognize that the mostefficient utilization of the waters within the Basin is for beneficial consumptiveuse; and to promote joint action by the States and the United States inthe efficient use of water and the control of destructive floods.
"The physical and other conditions peculiar to the Basin constitutethe basis for this compact, and none of the States hereby, nor the Congressof the United States by its consent, concedes that this compact establishesany general principle or precedent with respect to any other interstatestream.

"Article II
"The Basin is all the area in Colorado, Kansas, and Nebraska, whichis naturally drained by the Republican River, and its tributaries, to itsjunction with the Smoky Hill River in Kansas. The main stem of the RepublicanRiver extends from the junction near Haigler, Nebraska, of its North Forkand the Arikaree River, to its junction with Smoky Hill River near JunctionCity, Kansas. Frenchman Creek (River) in Nebraska is a continuation of FrenchmanCreek (River) in Colorado. Red Willow Creek in Colorado Red Willow Creekin Colorado is not identical with the stream having the same name in Nebraska.A map of the Basin approved by the Commissioners is attached and made apart hereof.
"The term 'Acre-foot', as herein used, is the quantity of water requiredto cover an acre to the depth of one foot and is equivalent to forty-threethousand, five hundred sixty (43,560) cubic feet.
"The term 'Virgin Water Supply', as herein used, is defined to be thewater supply within the Basin undepleted by the activities of man.
"The term 'Beneficial Consumptive Use' is herein defined to be thatuse by which the water supply of the Basin is consumed through the activitiesof man, and shall include water consumed by evaporation from any reservoir,canal, ditch, or irrigated area.
"Beneficial consumptive use is the basis and principle upon which theallocation of water hereinafter made are predicated.

"Article III
"The specific allocations in acre-feet hereinafter made to each Stateare derived from the computed average annual virgin water supply originatingin the following designated drainage basins, or parts thereof, in the amountsshown:
"North Fork of the Republican River drainage basin in Colorado, 44,700acre-feet;
"Arikaree River drainage basin, 19,610 acre-feet;
"Buffalo Creek drainage basin, 7,890 acre-feet;
"Rock Creek drainage basin, 11,000 acre-feet;
"South Fork of the Republican River drainagebasin, 57,200 acre-feet;
"Frenchman Creek (River) drainage basin in Nebraska, 98,500 acre-feet;
"Blackwood Creek drainage basin 6,800 acre-feet;
"Driftwood Creek drainage 7,300 acre-feet;
"Red Willow Creek drainage basin in Nebraska, 21,900 acre-feet;
"Medicine Creek drainage basin, 50,800 acre-feet;
"Beaver Creek drainage basin, 16,500 acre-feet;
"Sappa Creek drainage basin, 21,400 acre-feet;
"Prairie Dog Creek drainage basin, 27,600 acre-feet;
"The North Fork of the Republican River in Nebraska and the main stemof the Republican River between the junction of the North Fork and ArikareeRiver and the lowest crossing of the river at the Nebraska-Kansas stateline and the small tributaries thereof, 87,700 acre-feet.
"Should the future computed virgin water supply of any source varymore than ten (10) per cent from the virgin water supply as hereinaboveset forth, the allocations hereinafter made from such source shall be increasedor decreased in the relative proportion that the future computed virginwater supply of such source bears to the computed virgin water supply usedherein.
"Article IV
"There is hereby allocated for beneficial consumptive use in Colorado,annually, a total of fifty-four thousand, one hundred (54,100) acre-feetof water. This total is to be derived from the sources and in the amountshereinafter specified and is subject to such quantities being physicallyavailable from those sources:
"North Fork of the Republican River drainage basin, 10,000 acre-feet;
"Arikaree River drainage basin, 15,400 acre-feet;
"South Fork of the Republican River drainage basin, 25,400 acre-feet;
"Beaver Creek drainage basin, 3,300 acre-feet; and
"In addition, for beneficial consumptive use in Colorado, annually,the entire water supply of the Frenchman Creek (River) drainage basin inColorado and of the Red Willow Creek drainage basin in Colorado.
"There is hereby allocated for beneficial consumptive use in Kansas,annually, a total of one hundred ninety thousand, three hundred (190,300)acre-feet of water. This total is to be derived from the sources and inthe amounts hereinafter specified and is subject to such quantities beingphysically available from those sources:
"Arikaree River drainage basin, 1,000 acre-feet;
"South Fork of the Republican River drainage basin, 23,000 acre-ffet;
"Driftwood Creek drainage basin, 500 acre-feet;
"BeaverCreek drainage basin, 6,400 acre-feet;
"Sappa Creek drainage basin, 8,800 acre-feet;
"Prairie Dog Creek drainage basin, 12,600 acre-feet;
"From the main stem of the Republican River upstream from the lowestcrossing of the river at the Nebraska-Kansas state line and from water suppliesof upstream basins otherwise unallocated herein, 138,000 acre-feet; provided,that Kansas shall have the right to divert all or any portion thereof ator near Guide Rock, Nebraska; and
"In addition there is hereby allocated for beneficial consumptive usein Kansas, annually, the entire water supply originating in the Basin downstreamfrom the lowest crossing of the river at the Nebraska-Kansas state line.
"There is hereby allocated for beneficial consumptive use in Nebraska,annually, a total of two hundred thirty-four thousand, five hundred (234,500)acre-feetof water. This total is to be derived from the sources and in the amountshereinafter specified and is subject to such quantities being physicallyavailable from those sources:
"North Fork of the Republican River drainage basinin Colorado, 11,000acre-feet;
"Frenchman Creek (River) drainage basin in
Nebraska, 52,800 acre-feet;
"Rock Creek drainage basin, 4,400 acre-feet;
"Arikaree River drainage basin, 3,300 acre-feet;
"Buffalo Creek drainage basin, 2,600 acre-feet;
"South Fork of the Republican River drainagebasin, 800 acre-feet;
"Driftwood Creek drainage basin, 1,200 acre-feet;
"Red Willow Creek drainage basin in Nebraska, 4,200 acre-feet;
"Medicine Creek drainage basin, 4,600 acre-feet;
"Beaver Creek drainage basin, 6,700 acre-feet;
"Sappa Creek drainage basin, 8,800 acre-feet;
"Prairie Dog Creek drainage basin, 2,100 acre-feet;
"From the North Fork of the Republican River in Nebraska, the mainstem of the Republican River between the junction of the North Fork andArikaree River and the lowest crossing of the river at the Nebraska-Kansasstate line, from the small tributaries thereof, and from water suppliesof up stream basins otherwise unallocated herein, 132,000 acre-feet.
"The use of the waters hereinabove allocated shall be subject to thelaws of the State, for use in which the allocations are made.
"Article V
"The judgment and all provisions thereof in the case of Adelbert A.Weiland, as State Engineer of Colorado, et al. v. The Pioneer IrrigationCompany, decided June 5, 1922, and reported in 259 U.S. 498, affecting thePioneer Irrigation ditch or canal, are hereby recognized as binding uponthe States, and Colorado, through its duly authorized officials, shall havethe perpetual and exclusive right to control and regulate diversions ofwater at all times by said canal in conformity with said judgment.
"The water heretofore adjudicated to said Pioneer Canal by the DistrictCourt of Colorado, in the amount of fifty (50) cubic feet per second oftime is included in and is a part of the total amounts of water hereinbeforeallocated for beneficial consumptive use in Colorado and Nebraska.
"Article VI
"The right of any person, entity, or lower State to construct, or participatein the future construction and use of any storage reservoir or diversionworks in an upper State for the purpose of regulating water herein allocatedfor beneficial consumptive use in such lower State, shall never be deniedby an upper State; provided, that such right is subject to the rights ofthe upper State.
"Article VII
"Any person, entity, or lower State shall have the right to acquirenecessary property rights in an upper State by purchase, or through theexercise of the power of eminent domain, for the construction, operationand maintenance of storage reservoirs, and of appurtenant works, canalsand conduits, required for the enjoyment of the privileges granted by ArticleVI; provided, however, that the grantees of such rights shall pay to thepolitical subdivisions of the State in which such works are located, eachand every year during which such rights are enjoyed for such purposes, asum of money equivalent to the average annual amount of taxes assessed againstthe lands and improvements during the ten years preceding the use of suchlands, in reimbursement for the loss of taxes to said political subdivisionsof the State.
"Article VIII
"Should any facility be constructed in an upper State under the provisionsof Article VI, such construction and the operation of such facility shallbe subject to the laws of such upper State.
"Any repairs to or replacements of such facility shall also be madein accordance with the laws of such upper State.
"Article IX
"It shall be the duty of the three States to administer this compactthrough the official in each State who is now or may hereafter be chargedwith the duty of administering the public water supplies, and to collectand correlate through such officials the data necessary for the proper administrationof the provisions of this compact. Such officials may, by unanimous action,adopt rules and regulations consistent with the provisions of this compact.
"The United States Geological Survey, or whatever federal agency maysucceed to the functions and duties of that agency, in so far as this compactis concerned, shall collaborate with the officials of the States chargedwith the administration of this compact in the execution of the duty ofsuch officials in the collection, correlation, and publication of waterfacts necessary for the proper administration of this compact.
"Article X
"Nothing in this compact shall be deemed:
"(a) To impair or affect any rights, powers or jurisdiction of theUntied States, or those acting by or under its authority, in, over,and tothe waters of the Basin; nor to impair or affect the capacity of the UnitedStates, or those acting by or under its authority, to acquire rights inand to the use of waters of the Basin;
"(b) To subject any property of the United States, its agencies orinstrumentalities, to taxation by any State, or subdivision thereof, norto create an obligation on the part of the Untied States, its agencies orinstrumentalities, by reason of the acquisition, construction, or operationof any property or works of whatsoever kind, to make any payments to anyState or political subdivision thereof, state agency, municipality, or entitywhatsoever in reimbursement for the loss of taxes;
"(c) To subject any property of the United States, its agencies orinstrumentalities, to the laws of any State to any extent other than theextent these laws would apply without regard to this compact.
"Article XI
"This compact shall become operative when ratified by the Legislatureof each of the States, and when consented to by the Congress of the UnitedStates by legislation providing, among other things, that:
"(a) Any beneficial consumptive uses by the United States, or thoseacting by or under its authority, within a State, of the waters allocatedby this compact, shall be made within the allocations hereinabove made foruse in that State and shall be taken into account in determining the extentof use within that State.
"(b) The United States, or those acting by or under its authority,in the exercise of rights or powers arising from whatever jurisdiction theUnited States has in, over, and to the waters of the Basin shall recognize,to the extent consistent with the best utilization of the waters for multiplepurposes, that beneficial consumptive use of the waters within the Basinis of paramount importance to the development of the Basin; and no exerciseof such power or right thereby that would interfere with the full beneficialconsumptive use of the waters within the Basin shall be made except upona determination, giving due consideration to the objectives of this compactand after consultation with all interested federal agencies and the stateofficials charged with the administration of this compact, that such exerciseis in the interest of the best utilization of such waters for multiple purposes.
"(c) The United States, or those acting by or under its authority,will recognize any established use, for domestic and irrigation purposes,of the waters allocated by this compact which may be impaired by the exerciseof federal jurisdiction in, over, and to such waters; provided, that suchuse is being exercised beneficially, is valid under the laws of the appropriateState and in conformity with this compact at that time of the impairmentthereof, and was validly initiated under state law prior to the initiationor authorization of the federal program or project which causes such impairment.
"IN WITNESS WHEREOF, the Commissioners have signed this compact inquadruplicate original, one of which shall be deposited in the archivesof the Department of State of the United States of America and shall bedeemed the authoritative orginial, and of which a duly certified copy shallbe forwarded to the Governor of each of the State.
"Done in the City of Lincoln, in the State of Nebraska, on the 31stday of December, in the year of our Lord, one thousand nine hundred forty-two.
"M.C. HINDERLIDER
"Commissioner for Colorado
"GEORGE S. KNAPP
"Commissioner for Kansas
'WARDNER G. SCOTT
"Commissioner for Nebraska
"I have participated in the negotiations leading to this proposed compactand propose to report to the Congress of the United States favorably thereon.
"GLENN L. PARKER
"Representative of the United States"
Sec. 2(a) In order that the conditions stated in article XI of the compacthereby consented to shall be met and that the compact shall be and continueto be operative, the following provisions are enacted -
(1) any beneficial consumptive uses by the United States, or those actingby or under its authority, within a State, of the waters allocated by suchcompact, shall be made within the allocations made by such compact for usein that State and shall be taken into account in determining the extentof use within that State;
(2) the United States, or those acting by or under its authority, in theexercise of rights or powers arising from whatever jurisdiction the UnitedStates has in, over, and to the waters of the Basin shall recognize, tothe extent consistent with the best utilization of the waters from multiplepurposes, that beneficial consumptive use of the waters within the Basinis of paramount importance to the development of the Basin; and no exerciseof such power or right thereby that would interfere with the full beneficialconsumptive use of the waters within the Basin shall be made except upona determination, giving due consideration to the objectives of such compactand after consultation with all interested Federal agencies and the Stateofficials charged with the administration of such compact, that such exerciseis in the interest of the best utilization of such waters for multiple purposes.
(3) the United States, or those acting by or under its authority, will recognizeany established use, for domestic and irrigation purposes, of the watersallocated by such compact which may be impaired by the exercise of Federaljurisdiction, in, over, and to such waters: Provided, That such use is beingexercised benefically, is valid under the laws of the appropriate Stateand in conformity with such compact at the time of the impairment thereof,and was validly initiated under State law prior to the initiation or authorizationof the Federal program or project which causes such impairment.
(b) As used in this section -
(1) "beneficial consumptive uses" has the same meaning as whenused in the compact consented to by Congress by this Act; and
(2) "Basin" refers to the Republican River Basin as shown on themap attached to and made a part of the original of such compact depositedin the archives of the Department of State.
Approved May 26, 1943.

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1 The States initially sought congressional authorization to enter intoa compact before they had negotiated its terms. See H.R.J. Res. 406, 76thCong., 3d Sess. (1940); see also 86 Cong. Rec. 58 (1940) (remarks of Rep.Curtis). The Department of War objected on the ground that Congress shouldnot give its consent to a compact without knowing its content, and the HouseCommittee on Flood Control responded by amending House Joint Resolution406 to require congressional approval before the compact

could take effect, see H.R. Rep. No. 2707, 76th Cong., 3d Sess. (1940).That resolution, however, did not pass, and the States entered into negotiationswithout advance congressional authorization or the direct participationof the federal government. See 87 Cong. Rec. A2179 (1941) (remarks of Rep.Curtis).
2 See S. 649, 78th Cong., 1st Sess. (1943); H.R. 1679, 78th Cong., 1st Sess.(1943); H.R. 2482, 78th Cong., 1st Sess. (1943); Flood Control in the Basinof the Republican River: Hearing on S. 649 Before the Senate Comm. on Irrigationand Reclamation, 78th Cong., 1st Sess. (1943); Republican River Compact:Hearings on H.R. 1679 and H.R. 2482 Before the House Comm. on Irrigationand Reclamation, 78th Cong., 1st Sess. (1943); S. Rep. No. 152, 78th Cong.,1st Sess. (1943); H.R. Rep. No. 375, 78th Cong., 1st Sess. (1943); 89 Cong.Rec. No. 3549-3551 (1943) (Senate passage); id. at 4534-4536 (House passage);id. at 4907 (Presidential approval).
3 In Kansas v. Colorado, this Court ruled that Colorado has unlawfully consumedgroundwater associated with the Arkansas River, south of the RepublicanRiver Basin, in violation of the Arkansas River Compact. See Kansas v. Colorado,514 U.S. 673 (1995). The matter is pending before a Special Master on thequestion of remedy. See 118 S. Ct. 849 (1998). In Nebraska v. Wyoming, Nebraskaasserts, among other things, that Wyoming has unlawfully consumed groundwaterassociated with the North Platte River, north of the Republican River Basin,in violation of this Court's North Platte Decree. See Nebraska v. Wyoming,515 U.S. 1. That suit has not yet gone to trial, but the parties have settleda number of the issues apart from the issue of groundwater consumption.
4 Kansas's allegation that Nebraska's groundwater pumping is, in fact, depletingthe surface flow of the Republican River is not without foundation. TheBureau of Reclamation's 1996 Resource Management Assessment: RepublicanRiver Basin states that "the area's overall water supply has decreasedin part because groundwater development in the Republican River Basin hasincreased." Id. at 14. See generally id. at Attachment B, Part V (GroundwaterResearch Management Assessment). The Bureau has informed us, however, thatit has not definitively determined whether or to what extent groundwaterpumping depletes the specific water supply sources identified in the Compact.
5 Nebraska takes the position that the Compact does not impose any limitationson its pumping of groundwater, Br. in Opp. 10, 20, and it apparently treatsthe RRCA's inclusion of alluvial groundwater as going beyond the Compact'slimitations. Furthermore, Nebraska seems to treat alluvial groundwater asthe only form of groundwater that might affect surface flow. Nebraska'sassertions (Br. in Opp. 11-12, 15) that RRCA records include "groundwaterusage" are correct only if one neglects all non-alluvial groundwaterconsumption, which is the precise matter that concerns Kansas. See Kan.Reply Br. 2, 4-5.
6 Nebraska makes a number of secondary arguments that Kansas has failedto demonstrate injury. Those arguments, however, are also unpersuasive.For example, Nebraska assumes (Br. in Opp. 10-12) that Kansas cannot demonstrateinjury if Kansas has received its full aggregate water allocation underthe Compact. The Compact, however, allocates water on a source-by-sourcebasis, see Art. IV (Add. 5a-7a), and Kansas should therefore be entitledto demand that Nebraska adhere to its allocation from specific sources,even if Kansas receives an aggregate water supply equal to the sum of allof the sources. Nebraska also makes the unwarranted assumption (Br. in Opp.12-13) that Kansas does not suffer an injury under the Compact unless itcan show that it would consume the water that it is denied. The Compactcreates a right to receive the water that is promised, and Kansas may sueto enforce that right. See Nebraska v. Wyoming, 507 U.S. 584, 592 (1993);Wyoming v. Colorado, 309 U.S. 572, 581 (1940). Nebraska additionally arguesthat Kansas should not be granted leave to file a complaint until it comesforward with a more specific showing of the groundwater depletions. Br.in Opp. 9-10, 15-16. That contention, however, is inconsistent with thisCourt's practice in comparable original actions, including Nebraska's suitagainst Wyoming, which also alleges groundwater depletions in general terms.See Nebraska v. Wyoming, 515 U.S. at 6.
7 We note that the Master fees and expenses to date have totaled more than$1.5 million in Kansas v. Colorado (covering 1986 to 1997) and more than$ 1.1 million in Nebraska v. Wyoming (covering 1987 to 1998). Those assessmentsdo not include the parties' attorneys' fees and expenses. Nebraska has reportedlyspent $16 million on the Nebraska v. Wyoming litigation, which has not yetgone to trial. See G. Jensen, Suit Has Hurdles, Jess Says, Kearney Hub (May28, 1998).
8 For example, in Nebraska v. Wyoming, one party recently wrote to the SpecialMaster as follows: "It is not [our] desire to drag these proceedingsout any further. [Our] concern relates to the fact that Wyoming's responseto Basin's motion to strike Nebraska's reply to Wyoming's response to Basin'spetition to intervene is actually a response to Nebraska's response to Wyoming'sfirst motion to strike, which has been denied. In this regard, Basin aswell is arguing the merits of the briefing schedule set forth in the Orderof October 9, 1998, in the guise of arguing about the propriety of respondingto new arguments without seeking leave to do so." No. 108, Original,Letter to Special Master Owen Olpin (Oct. 27, 1998).
9 As we have noted, the RRCA's annual reports indicate that the RRCA adopteda compromise in 1959 on the question of groundwater usage that takes intoaccount alluvial groundwater pumping, but does not include groundwater pumpingfrom other sources. See pp. 9-10, 14, supra. In our view, the RRCA's compromiseaction neither categorically precludes Nebraska from asserting as a matterof law that the Compact does not limit groundwater consumption, nor categoricallyprecludes Kansas from asserting as a matter of law that the Compact limitsconsumption of all groundwater that may affect surface flow.