By Russ Pankonin
The Imperial Republican
When Kansas and Nebraska go back to trial Monday, Aug. 13, in Portland, Maine, on water disputes between the two states, witnesses could be in for the long haul.
During last week’s Upper Republican Natural Resources District (NRD) monthly meeting, Manager Jasper Fanning said the actual schedule of the trial is still “up in the air.”
Special Water Master William J. Kayatta, Jr., of Portland, Maine, will hear the case between the two states.
What’s up in the air, Fanning said, is just how the trial will be conducted.
In an attempt to expedite the trial, Kayatta has indicated that if a witness is set to testify on several different facets of the case, he wants that testimony all at once.
Fanning said the case has several aspects the states will address—the damage component of Kansas’ argument, Nebraska’s future compliance component of Kansas’ argument, their claim of contempt by Nebraska and Nebraska’s counterclaim on accounting errors in the model that need to be corrected.
To have one witness testify on all those issues in one sitting appears to be confusing, Fanning said, adding that the states would like to see it done differently.
Fanning expects to be a witness for Nebraska in the case. He said his testimony will be pre-filed with the special master so cross-examination can begin right away.
Without a firm schedule for the trial, Fanning has been told to plan on being in Portland the entire three weeks, for now anyway.
When asked how the case proceeds after the trial, Fanning said the special master will make a ruling on the issues in the case, which serves as a recommendation to the U.S. Supreme Court.
States will have the opportunity to respond to Kayatta’s ruling through briefs filed with the high court.
Fanning said the Supreme Court can follow the recommendations of the special master, send the case back to the special master or make its own decision.
Whenever two states are involved in litigation against each other, those matters are always heard by the U.S. Supreme Court.
Kansas says Nebraska violated the terms of the initial 2002 settlement over use of water in the Republican River Basin.
Unsatisfied with the June 2009 results of non-binding arbitration, Kansas asked the Supreme Court to re-examine its claims against Nebraska and Colorado.
The U.S. Supreme Court accepted Kansas’ request and appointed Kayatta to hear the case.
Kayatta comes from the same law firm as Vincent L. McKusick, the special master who oversaw the initial 2002 settlement.
Lincoln attorney Don Blankenau, who is serving as a special assistant to the Nebraska attorney general’s office, said Kansas is after two primary remedies—cash and shutdown of 300,000 acres of groundwater irrigation in Nebraska.
Kansas went into arbitration in the fall of 2008 seeking $72 million in damages but came away with nominal damages of only $10,000 and no damages for indirect economic impacts.
However, the arbitrator left the door open for Kansas to substantiate their claims and methodology before a court.
Blankenau said Kansas now is seeking $50 million in damages, although documents show Kansas says they only suffered $5 million in actual damages.
Nebraska will contend actual damages from its overuse of Republican Basin water in the mid-2000s are far less than Kansas believes.
In the 2008 arbitration, Kansas also sought to reduce Nebraska’s groundwater-irrigated acres in the basin by 515,000 acres to ensure compliance.
The arbitrator sided with Nebraska, saying the compact settlement gave Kansas no authority to tell Nebraska how to stay in compliance.
Now, Kansas is seeking the shutdown of 300,000 groundwater-irrigated acres in the basin.