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Kansas v. Nebraska

ELR Citation: 44 ELR 20040
Nos. 126, (U.S., 02/24/2015)

The U.S. Supreme Court adopted a Special Master's determination that Nebraska "knowingly failed" to comply with its obligations under a 2002 settlement agreement that resolved an underlying water allocation dispute between Nebraska and Kansas. The settlement established mechanisms to accurately measure water and promote compliance with the Republican River Compact. In 2007, after the first post-settlement accounting period, Kansas petitioned the Court for monetary and injunctive relief, claiming that Nebraska had substantially exceeded its water allocation. A Special Master determined Nebraska violated the settlement, and the Court agreed. Nebraska failed to put adequate compliance mechanisms in place despite knowing there was a substantial risk that it would violate Kansas' rights. The Court rejected Nebraska's argument that it could not have anticipated unprecedented drought conditions because "its efforts to comply would have been inadequate absent the luckiest of circumstances." In addition, because Nebraska's benefit from its breach exceeded the $3.7 million loss Kansas suffered, the Special Master recommended that Nebraska disgorge part of its additional gain; again, the Court adopted the Special Master's recommendation. Nebraska argued that disgorgement is improper because it did not act "deliberately." But disgorgement is appropriate where, as here, one state has "recklessly gambled" with another state's rights to a scarce natural resource. However, the Court did agree with Nebraska that the settlement agreement's accounting procedures improperly charged the state for using imported water. It therefore ordered that the accounting procedures be amended as recommended by the Special Master. Kagan, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined, and in which Roberts, C.J., joined as to Parts I and III. Roberts, C.J., and Scalia, J., filed opinions concurring in part and dissenting in part. Thomas J., filed an opinion concurring in part and dissenting in part, in which Scalia and Alito, JJ., joined, and in which Roberts, C.J., joined as to Part III.