On Most Issues, Special Master's River Ruling Favors Nebraska

William Kayatta's recommendations now will go the U.S. Supreme Court.

Published on: Nov 20, 2013

William J. Kayatta, the special master assigned to the legal dispute between

Nebraska and Kansas regarding water use in the Republican River Basin, denied Kansas' claim for $80 million in damages from Nebraska. Instead, Kayatta awarded Kansas only $5.5 million.

"We're pleased Special Master Kayatta rejected Kansas' demand for $80 million in damages and future restrictions on water use," Nebraska Attorney General Jon Bruning said in a statement released after the special master's recommendations. "Our basin irrigators have worked hard to keep Nebraska in compliance with the Republican River Compact on an annual basis since 2007. And, although we think the $5.5 million award is too high, were glad the Special Master acknowledged Nebraska should have the right to govern its water users without the oversight of an independent River Master."

On Most Issues, Special Masters River Ruling Favors Nebraska
On Most Issues, Special Master's River Ruling Favors Nebraska

As special master in the case, Kayatta makes a formal recommendation to the U.S. Supreme Court, which will review it and make a final decision sometime next year. In interstate cases where the U.S. Supreme Court has direct jurisdiction, a special master is appointed to hear the case and make recommendations. The high court generally accepts those findings.

The special master found Nebraska correctly identified a problem with the compact accounting procedures and recommended the problem be addressed by adopting Nebraska's proposed "5-Run Solution," Bruning said. This change will improve Nebraska's compact accounting balance in all years from 2007 forward.

In addition, Kayatta made the following recommendations:

  • Kansas's demand of $80,187,021 should be rejected. Kansas failed to prove it was entitled to an award based on unjust enrichment because it could show no bad faith by Nebraska, Bruning said.
  • Kansas' claim of actual damage in the amount of $6,577,165 should also be rejected. The special master recommends Nebraska should pay $5.5 million.
  • 100% of the evaporation from Harlan County Lake during 2006 (as calculated under the compact accounting procedures) should be charged to Kansas.
  • Kansas' demand that Nebraska permanently shut down 302,000 irrigated acres should be rejected.
  • Kansas' demand for appointment of an independent river master to dictate compliance terms should be rejected. Kansas failed to demonstrate a credible threat of future non-compliance. Kansas should not be entitled to any additional restrictions on Nebraska water users.
  • Kansas' request that Nebraska be found in contempt should be denied.
  • All remaining requests by Kansas, including injunctive relief and sanctions, should be denied.

The report will be reviewed by the United States Supreme Court. The Court's final ruling is not anticipated until 2014.