Archive for Sunday, December 12, 2004

Arkansas River legal battle costly for Kansas

Much of Colorado’s $29M payout already spent on litigation

December 12, 2004


— A dispute of more than a century doesn't end cheaply.

A recent U.S. Supreme Court decision has cleared the way for Colorado to pay Kansas $29 million for depleting water from the Arkansas River that should have flowed to southwestern Kansas.

Kansas spent about two-thirds of that amount in legal bills related to the water fight.

State officials said the lawsuit was never about making money, but about Kansas getting its fair share of water from the river that has been called the "Nile of America."

"For the money invested, we'll get more than we put into it, plus the water," said David Pope, chief engineer of the division of water resources in the Kansas Department of Agriculture.

In the complex universe of water litigation, the Arkansas River dispute provided decades of headaches and expense.

Farmers on both sides of the Kansas-Colorado line started feuding at the turn of the last century over water from the Arkansas River.

The 1,450-mile river is the fourth longest in the United States and the longest tributary in the Mississippi-Missouri river system.

Starting near Leadville, Colo., the Arkansas flows east and southeast through Colorado, Kansas, Oklahoma and Arkansas. In Kansas, it runs through Garden City, Dodge City, Great Bend, Hutchinson and Wichita before heading south to Oklahoma.

A look at the history of the dispute over Arkansas River water:1901-1943: Several claims and counterclaims between Kansas and Colorado on rights to water in the Arkansas River litigated to the U.S. Supreme Court. The court ruled against Kansas on two occasions and recommended the states settle their differences by negotiating a compact.1948: Kansas and Colorado sign the Arkansas River Compact, apportioning water in the river. The compact is approved by Congress in 1949.1985: Kansas sues Colorado, alleging it violated the compact and is depriving Kansas of much-needed water. In 1986, the Supreme Court appoints a special master to preside over the case.1987: The Supreme Court rules in a water rights case between Texas and New Mexico that monetary damages can be requested. Kansas amends its lawsuit to include monetary claims for economic damages.1995: Supreme Court rules Colorado took water belonging to Kansas, and remands the case to the special master. Colorado starts taking action to provide water to Kansas.1997: Special master determines Kansas may seek damages for depletion of 420,000 acre feet from 1950 through 1985. That is about 136 billion gallons of water.2004: Supreme Court rules against Kansas' attempt to get $53 million from Colorado. The court upholds an earlier ruling from special master to award Kansas $29 million.

It is one of the most-used rivers in the country, providing water to irrigators across a vast swath of the Midwest.

By 1949, Kansas and Colorado had a congressionally approved pact on using water from the river, but Kansas alleged violations continued on the Colorado side.

In 1985, then Atty. Gen. Bob Stephan filed a lawsuit against Colorado; John Carlin was governor.

Nineteen years, two attorneys general, four governors and about $20 million in legal expenses later, the issue is near resolution.

Last week, the Supreme Court denied a move by Kansas to add $14 million in interest on the earlier amount.

In Colorado, the decision was hailed as a victory by Atty. Gen. Ken Salazar, but in Kansas, officials said that while they were disappointed the court didn't add the interest, the underlying ruling is that Colorado forks over $29 million and takes steps to make sure Kansas gets its share of water.

"We've won some impressive precedents in our fight that has helped win a good positive settlement on the Arkansas River," Kansas Atty. Gen. Phill Kline said.

A water win

Water experts said the court rulings had forced Colorado to change water policies, including limiting and restricting well use and forcing releases from John Martin Reservoir in southeast Colorado.

"It has improved the flows we have seen and will be more evident over time," said David Brenn, a water rights consultant from Garden City.

Brenn, who serves on a Kansas-Colorado board that deals with water issues, said the court decision would increase groundwater in Kansas by lowering depletion of the Arkansas River basin resource in Colorado.

Both states fought furiously for the water, driving up the expense of litigation, officials in both states said.

"We make out Colorado to be the bad guys, but I expect if the river had run the other way, we would be just as aggressive in trying to keep the water," Brenn said.

Outside legal costs

The issue of legal costs has been controversial in the past. Lawmakers ordered an audit in 1997 after some legislators complained costs were excessive.

But officials maintain that private attorneys who specialize in water cases, hydrological experts and the maintenance of a special master in the case all drove up the costs.

"It's extremely expensive, and it takes a long time. It is just sort of a fact of life," said Colorado first assistant Atty. Gen. Carol Angel.

She said, however, the costs of the Arkansas River litigation and others probably was a factor in Kansas, Colorado and Nebraska reaching a settlement "on the courthouse steps" on disputes involving the flow of the Republican River.

John Draper, a Santa Fe, N.M., attorney who is counsel of record for Kansas, said he didn't know how much he made in fees since representing the state in the case from the early 1990s.

"The states have been very economical about this," Draper said. And like Kansas officials, he said the benefit to the state from the lawsuit will be the water. "The money amounts the state receives are small compared with benefits that southwest Kansas will get," he said.

Of the $29 million Kansas will recover in the Arkansas River case, most will go into a state fund to pay for monitoring and enforcement of the court ruling, and for any future water litigation.

Of the remaining monies, two-thirds will go toward water projects in southwestern Kansas, and the rest will be dedicated to state water planning purposes.

It may be at least spring before Colorado writes a check, Angel said. The state is struggling through a budget crisis, but Angel said she was sure lawmakers would pay up.

"It squeezes an already tight budget," she said.

For Kansas officials, while the flow of money into state coffers is important, the biggest battle in the Arkansas River lawsuit was over the flow of water.

"It's real important for people to realize: Kansas won this case," Brenn said.

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