No. 126, Original
In the Supreme Court of the United States
STATE OF KANSAS, PLAINTIFF
v.
STATE OF NEBRASKA
AND
STATE OF COLORADO
ON MOTION TO DISMISS
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE IN OPPOSITION TO THE EXCEPTIONS
TO THE FIRST REPORT OF THE SPECIAL MASTER
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
QUESTION PRESENTED
Whether the Republican River Compact restricts a compacting State's consumption
of groundwater.
In the Supreme Court of the United States
NO. 126, Original
STATE OF KANSAS, PLAINTIFF
v.
STATE OF NEBRASKA
AND
STATE OF COLORADO
ON MOTION TO DISMISS
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
IN OPPOSITION TO THE EXCEPTIONS TO THE
FIRST REPORT OF THE SPECIAL MASTER
INTEREST OF THE UNITED STATES
The United States has a significant interest in the interpretation of the
Republican River Compact. The States of Colorado, Kansas, and Nebraska entered
into this Compact to apportion an interstate stream and to provide the basis
for orderly planning and development of federal flood control and irrigation
projects. Federal officials participated in the formulation of the Compact,
and Congress ultimately approved the Compact pursuant to the Compact Clause
of the Constitution, Art. I, § 10, Cl. 3. See Act of May 26, 1943,
ch. 104, 57 Stat. 86. This Court invited the Solicitor General to express
the views of the United States in response to Kansas's motion for leave
to file a bill of complaint, 525 U.S. 805 (1998). In response, the United
States urged this Court to grant Kansas's motion for leave to file the complaint,
but also urged the Court to grant Nebraska leave to file a motion to dismiss
in order to resolve at the outset the central issue of whether the Compact
restricts a compacting State's consumption of groundwater. See U.S. Invitation
Br. 16-20. The Court followed that course, and the United States filed a
brief as amicus curiae in opposition to Nebraska's motion to dismiss, see
U.S. Opp. Mot. Br. 13-30, and participated in the proceedings before the
Special Master.
STATEMENT
The State of Kansas filed this original action to enforce its rights under
the Republican River Compact, which allocates the "virgin water supply"
of the Republican River Basin among the States of Colorado, Kansas, and
Nebraska. See First Report of the Special Master (Rep.) 1. Kansas alleges,
as its principal ground for relief, that Nebraska has exceeded its Compact
allocation by allowing its citizens to pump and consume groundwater that
should be included as part of the allocated water supply. See Compl. para.
7; Kan. Br. in Support of Compl. 2. Nebraska has denied that allegation,
see Neb. Answer para. 7, and has additionally argued, among other defenses
and counterclaims, that the Compact does not restrict Nebraska's right to
consume groundwater, id. para. 19.1
In responding to this Court's request for the United States' views on whether
Kansas should be granted leave to file a bill of complaint (Kansas v. Nebraska,
525 U.S. 805 (1998)), the United States noted that Kansas and Nebraska starkly
disagreed at the threshold on the fundamental and potentially dispositive
legal issue of whether the Republican River Compact restricts a compacting
State's consumption of groundwater. See U.S. Invitation Br. 11. The United
States urged that an early resolution of that central legal issue through
an appropriate pretrial mechanism would greatly facilitate the resolution
of this case, and it suggested that the Court allow Nebraska to file a motion
to dismiss limited to that issue. Id. at 16-20. Following Nebraska's submission
of its answer to the complaint, the Court granted Nebraska "leave to
file a motion to dismiss, in the nature of a motion under Rule 12(b)(6),
Federal Rules of Civil Procedure, limited to the question whether the Republican
River Compact restricts a State's consumption of groundwater." 119
S. Ct. 2364 (1999).
Nebraska filed a motion to dismiss predicated on three related arguments.
Nebraska contended that: (1) the Compact, by its terms, apportions only
surface flows and not groundwater; (2) this Court and the compacting States
have interpreted the Compact as an agreement regarding rights to surface
water; and (3) the parties did not intend to apportion groundwater under
the Compact. See Neb. Br. in Support of Mot. to Dismiss (Neb. Br.) 5-6.
In essence, Nebraska contended that the Republican River Compact treated
surface water and groundwater as distinct resources, and it argued that
the Republican River Compact, as a matter of law, "apportion[s] surface
water only." Id. at 20.
Kansas and Colorado opposed Nebraska's motion, but they relied on different
legal theories. Kansas essentially argued, based on the Republican River
Compact's language and the history of its negotiation, that the Compact
restricts a compacting State's consumption of groundwater to the extent
necessary to maintain allocations of surface flows to downstream States.
Kansas Br. in Opp. to Mot. to Dismiss (Kan. Br.) 9-22. Colorado contended,
based primarily on the history of the Republican River Compact's negotiation
and administration, that the Compact allocates alluvial groundwater but
does not include "Ogallala Aquifer" groundwater. Colo. Resp. to
Neb. Mot. to Dismiss (Colo. Br.) 6-18, 20-23.2
The United States, as amicus curiae, opposed Nebraska's motion on grounds
similar to those of Kansas. The United States explained that the Republican
River Compact apportions the "virgin water supply," which is defined
as "the water supply within the Basin undepleted by the activities
of man" (Art. II (Rep. App. A3)). See U.S. Opp. Mot. Br. 15. The Compact
calculates the virgin water supply in terms of the Basin stream flows, see
Arts. II-IV (Rep. App. A3-A7), which, as a matter of settled hydrological
principles, can originate from surface runoff, groundwater discharge, or
both. U.S. Opp. Mot. Br. 16-19. Accordingly, if a compacting State consumes
a portion of the groundwater that would otherwise constitute a component
of the stream flows, then that consumption should be charged against the
compacting State's allocation of the "virgin water supply." See
id. at 19-27.3
After the motion to dismiss was fully briefed, this Court appointed Vincent
L. McKusick as a Special Master and referred the matter to him. 120 S. Ct.
519 (1999). The Master held a hearing and issued his First Report. Following
a detailed analysis, the Master submitted the following recommendation to
the Court:
The Republican River Compact restricts a compacting State's consumption
of groundwater to the extent the consumption depletes stream flow in the
Republican River Basin and, therefore, Nebraska's Motion to Dismiss should
be denied.
Rep. 45. In summarizing the basis of his recommendation, the Master explained
that he relied on the unambiguous language of the Compact (id. at 44) and
that, even if the Compact were ambiguous, the record of the Compact negotiations
and Compact administration "reflects an identical interpretation."
Ibid. He also noted that "no decision of either this Court or any court
of any of the compacting States detracts from the plain and inclusive meaning
of the term 'virgin water supply.'" Ibid.
The Master made clear that his inquiry was limited to the narrow legal issue
identified in this Court's order granting Nebraska leave to file a motion
to dismiss. Rep. 18. The Master's recommendation accordingly does not reach
any factual questions concerning whether or to what extent Nebraska is liable
under his recommended construction of the Compact. See id. at 45 ("Nebraska
violates the Compact if, as a factual matter, Nebraska's groundwater pumping,
whether from alluvial or tableland wells, depletes stream flow in the Basin
to the extent that Nebraska exceeds its allocated share of the virgin water
supply.").
SUMMARY OF ARGUMENT
A. Nebraska's motion to dismiss raises the fundamental legal issue at the
center of this case: Whether the Republican River Compact restricts a compacting
State's consumption of groundwater. The Master has examined that issue and
determined that the Compact restricts groundwater consumption to the extent
the consumption depletes Basin stream flows. The Master has accordingly
recommended that Nebraska's motion to dismiss should be denied. The Master's
recommendation is sound and should be adopted by this Court. That course
of action will facilitate the ultimate resolution of this action.
B. The Master correctly observed that the Republican River Compact apportions
the "virgin water supply," which the Compact defines as "the
water supply within the Basin undepleted by the activities of man."
Art. II (Rep. App. A3). The Compact quantifies the virgin water supply in
terms of stream flow. See Art. III (Rep. App. A4). The Master assumed, consistent
with Kansas's factual allegations and incontrovertible hydrological principles,
that the Republican River stream flows originate from both surface runoff
and groundwater discharge. The Master accordingly concluded, based on the
unambiguous Compact language, that "[t]o whatever extent groundwater
pumping depletes the stream flow in the Basin, such depletion constitutes
consumption of the virgin water supply and must be counted against the allocated
share of the pumping State." Rep. 2-3. See id. at 44. The Master also
properly concluded that, even if the Compact language were ambiguous, and
the Court determined that it needed to consult the records of the Compact
negotiations and Compact administration, those sources would lead to the
same conclusion. See ibid.
C. Nebraska presents three objections to the Master's recommendation.
First, Nebraska contends that the Master erred as a matter of procedure
because he considered matters outside the pleadings and effectively granted
judgment to Kansas. Nebraska is mistaken. The Master made clear that his
recommendation could stand solely on the basis of the Compact's unambiguous
language. He nevertheless also reported that his recommendation was consistent
with extrinsic indicia of the compacting States' intent, including the official
records of the Compact's negotiation and implementation. The Master committed
no procedural error in bringing those matters to the Court's attention.
The Court has discretion to consider those official records if it concludes
that the Compact itself is ambiguous. The Master also did not enter judgment
for Kansas. The Master made clear that Kansas can prevail only if it demonstrates,
as a factual matter, that groundwater pumping in Nebraska has diminished
Basin stream flows.
Second, Nebraska contends that the Master addressed issues not properly
before him. Nebraska essentially argues that the Master could recommend
granting or denying Nebraska's motion to dismiss, but he could not recommend
that the Court make a legal ruling construing the Compact contrary to Nebraska's
interpretation. Nebraska, again, is mistaken. In resolving a motion to dismiss,
a court may decide a question of law. The interlocutory resolution of that
question becomes law of the case and governs future proceedings. The Master
has recommended that the Court deny Nebraska's motion to dismiss on the
ground that the Compact regulates groundwater consumption that diminishes
stream flow. If the Court agrees with the Master's construction of the Compact
and denies the motion to dismiss on that basis, that ruling will establish
certain legal principles that will be applied in later proceedings to determine
whether, as a matter of fact, Kansas is entitled to relief.
Third, Nebraska claims that the Master misinterpreted the Compact. The Master's
Report comprehensively addresses Nebraska's objections. As the Master explained,
Nebraska's central argument-that the Compact apportions only "surface
water"-fails to come to grips with the fact that stream flows consist
of both surface runoff and groundwater discharge. The Master correctly recognized
that a State's consumption of the groundwater discharge component of a stream
flow necessarily results in reduction of the stream flow. Nothing that Nebraska
cites-including various judicial decisions, federal statutes, and other
compacts- alters that fundamental aspect of the Compact's apportionment.
D. Colorado objects to the Master's recommendation that the Republican River
Compact restricts consumption of groundwater in the Basin-whatever its source-to
the extent the consumption depletes stream flow. In Colorado's view, the
Compact draws a distinction between "alluvial" groundwater and
"Ogallala Aquifer" groundwater, restricting consumption of the
former but not the latter. The Master correctly rejected that argument.
As he explained, the Compact's text is unambiguous and draws no such distinction.
In addition, the official records of the Compact's administration show that
the compacting States have long viewed both alluvial and non-alluvial groundwater
as subject to Compact restrictions.
E. This Court should accept the Master's recommendation, deny Nebraska's
motion to dismiss, and recommit the case to the Master for further proceedings.
On recommittal, Kansas will bear the burden of establishing, as a matter
of fact, that groundwater pumping in Nebraska has depleted Republican River
Basin stream flows. In undertaking future proceedings, the parties should
be mindful that the factual inquiry will be complex and that the Court's
resolution of the longstanding legal dispute over the Compact's effect on
groundwater consumption may provide a basis for a negotiated resolution
of the remaining issues in this case.
ARGUMENT
THE SPECIAL MASTER HAS CORRECTLY INTERPRETED THE REPUBLICAN RIVER COMPACT
AND PROPERLY RECOMMENDED DENIAL OF NEBRASKA'S MOTION TO DISMISS
A. Introduction
The United States' experience with original actions involving interstate
water disputes suggests that those cases are likely to result in costly
and protracted litigation that may span decades. See e.g., Nebraska v. Wyoming,
515 U.S. 1, 4-8 (1995) (describing litigation over apportionment of the
North Platte River); Kansas v. Colorado, 514 U.S. 673, 678-681 (1995) (describing
litigation over enforcement of the Arkansas River Compact); Arizona v. California,
460 U.S. 605, 608-612 (1983) (describing litigation over apportionment of
the Colorado River). The parties' typically raise factual issues that turn
on complex questions of meteorology, hydrology, geology, engineering, and
economics, which must be applied to thousands of square miles of varied
terrain and land uses. The litigation, particularly discovery and trial
preparation, correspondingly tends to be extraordinarily complicated, time-consuming,
and expensive. See, e.g., 1-4 First Report of the Special Master, Kansas
v. Colorado, No. 105, Orig. (1994).4
The United States accordingly supports the view that, before invoking this
Court's original jurisdiction, the parties should attempt consensual resolution
of their differences. See Texas v. New Mexico, 462 U.S. 554, 575 (1983)
("Time and again we have counseled States engaged in litigation with
one another before this Court that their dispute 'is one more likely to
be wisely solved by co-operative study and by conference and mutual concession
on the part of representatives of the States so vitally interested in it
than by proceedings in any court however constituted.'") (quoting New
York v. New Jersey, 256 U.S. 296, 313 (1921)). If those differences cannot
be resolved through consensual means, then the United States encourages
the use of procedural mechanisms to clarify the issues and facilitate, to
the extent possible, the ultimate termination of the litigation. See U.S.
Invitation Br. 16-20; see also Ohio v. Kentucky, 410 U.S. 641, 644 (1973)
("Our object in original cases is to have the parties, as promptly
as possible, reach and argue the merits of the controversy presented.").
In this case, the United States determined from the pleadings and its experience
in administering federal water projects on the Republican River, that Kansas
and Nebraska disagree on a threshold legal issue: whether the Republican
River Compact regulates a compacting States' consumption of groundwater.
The United States concluded that this question, if resolved at the outset,
either would largely terminate the litigation or would provide concrete
guidance on the legal standard and direct the course of future proceedings.
The United States accordingly recommended that the Court make available
the pretrial mechanism of a motion to dismiss, in the nature of a motion
under Rule 12(b)(6), Federal Rules of Civil Procedure, limited to the question
of whether, as a matter of law, the Republican River Compact limits Nebraska's
right to consume groundwater. U.S. Invitation Br. 17.
The Court has followed that course, Nebraska has filed its motion to dismiss,
and the Master has recommended a correct resolution of the issue, which
will facilitate the determination of this litigation. We begin by explaining
why the Master's analysis is correct, and we then address Nebraska's and
Colorado's exceptions. Finally, we briefly discuss how the Master's decision
should affect the future course of the litigation.5
B. The Master Correctly Concluded That The Republican River Compact Restricts
A Compacting State's Consumption Of Groundwater To The Extent That The Consumption
Depletes Basin Stream Flows
The Master has correctly determined that the Republican River Compact restricts
a compacting State's consumption of groundwater. As the Master explained
at the outset of his analysis, he has addressed that legal question through
the familiar principles that would govern a motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure. See Rep. 19. He assumed
that the factual allegations set out in the complaint are true, see Neitzke
v. Williams, 490 U.S. 319, 326-327 (1989), and, because "the Compact
is both a contract and a federal and State statute," he evaluated the
legal issue through application of "the customary rules of contract
interpretation and statutory construction." Rep. 19. Upon thorough
examination, the Master concluded that the text of the Republican River
Compact unambiguously restricts a compacting State's consumption of groundwater.
Id. at 19-23. He additionally concluded that "even if the language
of the Compact were thought to be ambiguous," the other sources that
shed light on the construction of the Compact lead "clearly to the
same conclusion." Id. at 23; see id. at 23-34.
1. The Master correctly observed that the Republican River Compact apportions
the "virgin water supply" of the Republican River Basin, which
the Compact defines as "the water supply within the Basin undepleted
by the activities of man." Rep. 19 (quoting Art. II). The Master also
correctly discerned that the Compact quantifies the "virgin water supply"
in terms of stream flow. Id. at 20 (citing Art. III). The Master assumed,
consistent with Kansas's factual allegations and incontrovertible hydrological
principles, that Republican River stream flows originate from both surface
runoff and groundwater discharge. Id. at 2 n.3, 19-22. He therefore correctly
concluded:
To whatever extent groundwater pumping depletes the stream flow in the Basin,
such depletion constitutes consumption of a part of the virgin water supply
and must be counted against the allocated share of the pumping State. The
use of a State's allocation through groundwater pumping is permissible,
but such pumping is subject to the restrictions imposed by the Compact allocations.
Id. at 2-3. This Master correctly determined that "the language of
the Compact is not ambiguous." Id. at 23. To the contrary, "[a]
straightforward reading of its terms yields the conclusion that a State's
groundwater pumping, to the extent it depletes the stream flow in the Basin,
is intended to be allocated as part of the virgin water supply and to be
counted as consumptive use by the pumping State." Ibid.; see also id.
at 44. The Compact's unambiguous text conclusively resolves the legal issue.
See New Jersey v. New York, 523 U.S. 767, 811 (1998); Kansas v. Colorado,
514 U.S. at 690; Texas v. New Mexico, 462 U.S. at 567-568.
2. The Master recognized that there was no need for the legal analysis to
proceed further. See Rep. 19, 23, 44. He nevertheless observed that, when
interpreting an interstate compact, the Court may examine other reliable
indicia of intent, including "items in the public record such as the
minutes of the Compact negotiations and the records of subsequent Compact
administration." Id. at 19. See Oklahoma v. New Mexico, 501 U.S. 221,
235 n.5 (1991); Texas v. New Mexico, 462 U.S. at 568 n.14; Arizona v. California,
292 U.S. 341, 359-360 (1934); see also Air France v. Saks, 470 U.S. 392,
396 (1985); New Jersey v. New York, 523 U.S. at 830-831 (Scalia, J., dissenting).
The Master therefore reported on those additional indicia of the Compact's
meaning. See Rep. 23-34.
The Master observed that "the hydraulic connection between groundwater
pumping and stream flow is already assumed for purposes of [Nebraska's]
Motion," but he also properly took notice that "[t]he connection
between groundwater discharge and stream flow was a widely known scientific
fact well before the Compact was drafted." Rep. 23. The Master cited
decisions of this Court, as well scientific and legal commentary of the
pre-Compact era, reflecting an understanding of the hydraulic connection.
See id. at 23-24 (citing Snake Creek Mining & Tunnel Co. v. Midway Irrigation
Co., 260 U.S. 596, 598 (1923); Kansas v. Colorado, 206 U.S. 46, 114-115
(1907); C.F. Tolman & Amy C. Stipp, Analysis of Legal Concepts of Subflow
and Percolating Waters, 21 Ore. L. Rev. 113, 115-129 (1942); Samuel C. Wiel,
Need of Unified Law for Surface and Underground Water, 2 S. Cal. L. Rev.
358, 362 (1921)).
The Master also recognized that the "documents from the negotiation
and drafting of the Compact demonstrate that the Commissioners who represented
the compacting States were well aware (1) that groundwater diversion prior
to its entrance into the stream flow can have the effect of depleting the
virgin water supply and (2) that groundwater contributions to the virgin
water supply would be allocated under the Compact." Rep. 25. The Master
specifically pointed to the official minutes of the Compact negotiations,
which "clearly show that the States in negotiating the Compact (1)
understood the connection between groundwater use and surface water depletion,
and (2) were thinking about the impact of groundwater pumping at the time
of the Compact negotiations." Id. at 26.
In evaluating the Compact's meaning, the Master also reported on the parties'
practical construction of the Compact. Rep. 32-33. As the Master explained,
in 1959, the States created the Republican River Compact Administration
(RRCA) to administer the Compact. Id. at 14. As part of its duties, the
RRCA has published formulas for calculating the virgin water supply and
each State's consumption. Id. at 14-16. The Master took notice of those
official published formulas and correctly observed:
From the outset, the RRCA has, by its unanimous action, construed the Compact
to restrict any kind of groundwater pumping by a compacting State to the
extent it depletes stream flow in the Basin. The RRCA immediately applied
that general principle to alluvial groundwater pumping and deferred applying
it to table-land groundwater pumping only because of the need to obtain
further data to quantify the effect of the table-land pumping on Basin stream
flow.
Id. at 32; see also id. at 32-34. "The RRCA, through its call for 'more
research and data' to quantify the hydraulic connection between table-land
pumping and stream flow, has repeatedly indicated its intention later to
include the effect of table-land groundwater pumping in the Formulas."
Id. at 34.
Based on all of the information discussed above, the Master "conlude[d]
that, as a matter of law, the Compact restricts, and allocates as part of
the virgin water supply, any groundwater that would become part of the stream
flow in the Basin if not previously depleted through an activity of man
such as pumping." Rep. 34.6
C. The Court Should Reject Nebraska's Exceptions To The Master's Recommendation
Nebraska argues that the Court should reject the Master's recommendation
on the grounds that he: (1) committed procedural errors by considering matters
outside the pleadings and granting a "judgment" to Kansas; (2)
made findings concerning matters not before him; and (3) misapplied the
Compact. Each of those arguments is unpersuasive.
1. The Master Did Not Commit Procedural Error. Nebraska raises two claims
of procedural error. First, the State contends (Neb. Except. Br. 6-10) that
the Master committed an "initial procedural error" because, in
considering the State's motion to dismiss, the Master did not follow Rule
12(b)(6)'s direction that, if "matters outside the pleading are presented
to and not excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56," which governs
the granting of summary judgment. See Fed. R. Civ. P. 12(b)(6). Second,
Nebraska contends that the Master's recommendation "offers judgment
to the non-moving party (i.e., Kansas) that is basically the opposite of
that requested by the movant." Neb. Except Br. 10-11. Those arguments
are without merit.
a. "Rule 12(b)(6) authorizes a court to dismiss a claim on the basis
of a dispositive issue of law." Neitzke v. Williams, 490 U.S. 319,
326 (1989). "This procedure, operating on the assumption that the factual
allegations in the complaint are true, streamlines litigation by dispensing
with needless discovery and factfinding." Id. at 326-327. Rule 12(b)(6)
does not, however, allow "dismissals based on a judge's disbelief of
a complaint's factual allegations." Ibid. Rule 12(b)(6)'s conversion
requirement ensures that, when a motion to dismiss raises potentially disputable
factual matters that are not a part of the complaint, Rule 56's summary
judgment procedures will be utilized to identify whether there is a factual
dispute that requires a trial. See generally 2 James Wm. Moore, Moore's
Federal Practice § 12.34[2] (Matthew Bender 3d ed. 1997); Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure § 1364
(1990).
Rule 12(b)(6)'s conversion requirement does not, however, prevent a court
from considering, without conversion, "facts alleged in the pleadings,
documents attached as exhibits or incorporated by reference in the pleadings,
and matters of which the judge may take judicial notice." 2 Moore's
Federal Practice § 12.34[2]. A judge may take judicial notice of "public
records." Ibid. See, e.g., Bowles v. United States, 319 U.S. 33, 35
(1943). Under the Federal Rules of Evidence, a judge may also take judicial
notice of an "adjudicative fact" if that fact is:
not subject to reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose accuracy cannot
reasonably questioned.
Fed. R. Evid. 201(b). See also Fed. R. Evid. 201(f) ("Judicial notice
may be taken at any stage of the proceeding.").
Finally, when interpreting a statute, a court may draw upon various intrinsic
and extrinsic sources to determine the meaning of the statutory text. See,
e.g., Regions Hosp. v. Shalala, 522 U.S. 448, 460 n.5 (1998) (when interpreting
statutes, courts "look to the provisions of the whole law, and to its
object and policy"); see also Fed. R. Evid. 201 note (a) (discussing
the distinction between adjudicative and legislative facts); see generally
2A Norman J. Singer, Statutes and Statutory Construction (6th ed. 2000).
"It is only through custom, usage, and convention that language acquires
established meanings." Id. § 45.02, at 13. Accordingly, a court
not only may, but to some degree must, consider "matters outside the
pleading"-such as a dictionary, or in appropriate cases, legislative
history, or administrative constructions of the legislation-to determine
legislative intent. The limitations on what aids to statutory construction
may be considered derive principally from their pertinence and reliability
as guides to the legislation's meaning, see id. §§ 47.01-48.20,
rather than from the formal conversion requirement set out in Rule 12(b)(6).
Rule 12(b)(6)'s conversion requirement has limited relevance in this proceeding
because the Master ruled that the Compact's text, by itself, is unambiguous
and sufficient to resolve the legal question presented. See Rep. 44.7 If
the Court agrees, then there is no need to proceed further. Any procedural
question respecting consideration of extrinsic materials arises only if
the Court concludes that the Compact is ambiguous and wishes to look beyond
the text to other indicia of intent. The parties discussed those indicia
in varying degrees in the proceedings before the Master, and he has reported
on them. The Master's Report, however, contains only an advisory recommendation.
This Court remains the trial court with original jurisdiction over the matter.
This Court has sole authority to determine whether consideration of extrinsic
materials is necessary or appropriate, and whether conversion is required.
Indeed, the Federal Rules themselves are taken only "as guides."
Sup. Ct. R. 17.2. See Ohio v. Kentucky, 410 U.S. 641, 644 (1973).
If the Court decides to consider extrinsic materials, then the Court may
certainly consider the official minutes of the Compact negotiations and
the reports of the RRCA for purposes of resolving the legal issue presented
here. See U.S. Opp. Mot. Br. Add. 13a-114a.8 The United States appended
those materials to its Opposition Brief because they are matters of public
record that bear on the meaning of the Compact. See id. at 13-14 & n.6.9
Nebraska has not challenged the authenticity of those public records, which
were readily available to the parties, and the parties disagree only on
the legal significance of those materials. Those materials provide no basis
for converting Nebraska's motion to one for summary judgment, because Nebraska
has not in any concrete way suggested that those materials give rise to
a disputed issue of fact. See Papasan v. Allain, 478 U.S. 265, 268 n.1 (1986).10
b. Nebraska also claims that the Master committed a procedural error by
effectively granting a "judgment" to Kansas. Neb. Exc. Br. 10-11.
That argument rests on a mischaracterization of the Master's recommendation.
The Master has recommended that the Court make a legal ruling, in response
to Nebraska's motion to dismiss, that the Compact restricts a compacting
State's consumption of groundwater to the extent the consumption depletes
the virgin water supply, which is measured by reference to Basin stream
flows. Rep. 45. That legal determination does not result in a judgment in
favor of Kansas because it leaves open a crucial factual issue: whether
Nebraska's groundwater consumption has that effect. See id. at 3 ("I
conclude that the Compact restricts groundwater consumption to whatever
extent it depletes stream flow in the Republican River Basin.") (emphasis
added). If the Court adopts the Master's recommendation, the Court's ruling
will, however, establish law of the case. The law-of-the-case doctrine "posits
that when a court decides upon a rule of law, that decision should continue
to govern the same issues in subsequent stages in the same case." Christianson
v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988). In this case,
the Court's decision will establish the legal rule that will govern future
proceedings, which in turn will "promote[] the finality and efficiency
of the judicial process." Ibid. See generally 18 Moore's Federal Practice
§ 134.20.
2. The Master's Recommendation Addresses The Issue Before Him. Nebraska
next makes the novel argument that its motion to dismiss does not allow
the Master to recommend, or this Court to make, a binding legal determination
that is adverse to Nebraska. See Neb. Except. Br. 10-11. According to Nebraska,
the motion left the Master with two choices: He could recommend that the
Court grant the motion and dismiss the case or he could recommend that the
Court deny the motion without reaching any legal conclusion. See Neb. Except.
Br. 11-15. Nebraska's argument rests on a fundamental misconception about
the function of a motion to dismiss. As noted above, "Rule 12(b)(6)
authorizes a court to dismiss a claim on the basis of a dispositive issue
of law." Neitzke, 490 U.S. at 326. This Court granted Nebraska leave
to file a motion to dismiss to resolve a threshold issue of Compact construction
that will determine the course of future proceedings. The Master has made
a recommendation, based on a reasoned analysis, and interpreted the Compact
in accordance with the views of Kansas and the United States, and contrary
to the views of Nebraska and Colorado. The question before this Court is
whether the Master's construction is correct. The Court must decide, one
way or the other, what the Compact means. That ruling becomes the law of
the case and governs future proceedings. See Christianson, 486 U.S. at 815-816.
3. The Master Did Not Err In His Analysis Of The Compact Language. Nebraska
contends that the Master's construction of the Compact is erroneous because
it assertedly: (a) misinterprets the text of the Compact (Neb. Except. Br.
16-31); (b) is inconsistent with other federal law (id. at 31-46); and (c)
improperly relies on the RRCA formulas (id. at 46-47).
a. All of Nebraska's textual objections to the Master's construction of
the Compact derive from its central premise that "[t]he express terms
of the Compact discuss and apportion only surface water." Neb. Except.
Br. 17. The Compact, however, does not use the term "surface water,"
and the terms that Nebraska relies on to suggest that the Compact apportions
only surface water-"Basin," "drained," and "drainage
basin" (id. at 17-23)-do not suggest in any way that the Compact allows
unlimited groundwater pumping regardless of its effects. To the contrary,
the Compact allocates stream flows, and consumption of the groundwater discharge
component of a stream necessarily diminishes the stream flow. Under Nebraska's
approach, by contrast, a State could receive more than its Compact allocation
by simply intercepting that component before it reaches the stream. Likewise,
and contrary to Nebraska's contentions (id. at 22-24), the Compact's failure
to mention groundwater or its apportionment is irrelevant. The "comprehensive
definition of virgin water supply, even without use of the express term
'groundwater,' requires a conclusion that, as a matter of law, a State can
violate the Compact through excessive pumping of groundwater hydraulically
connected to the Republican River and its tributaries." Rep. 22. See
U.S. Opp. Mot. Br. 15-19.
Nebraska is also mistaken in asserting (Neb. Except. Br. 24-31) that the
Master failed to consider contemporaneous federal and state laws that bear
on the meaning of the Compact. As the Master correctly noted, this Court
retains the "final power to pass upon the meaning and validity of compacts."
State ex rel. Dyer v. Sims, 341 U.S. 22, 28 (1951). Federal and state laws
and judicial decisions may provide interpretive guidance, but they cannot
override a compact's text and proper meaning. Furthermore, compacting States
are not "constrained" (Neb. Except. Br. 24) by their own existing
common or statutory law from formulating new solutions to interstate problems
that depart from settled practices.
Nebraska essentially contends that the Compact should be interpreted to
impose no limits on groundwater pumping in light of a series of state-law
cases that discussed the regulation of groundwater in various contexts.
The Master correctly concluded that there is "nothing in those state
court decisions that runs counter to the natural inclusive construction
of the Compact's definition of 'virgin water supply.'" Rep. 39. For
example, Nebraska suggests that State ex rel. Peterson v. Kansas State Board
of Agriculture, 149 P.2d 604 (Kan. 1944), indicates that the Compact does
not regulate groundwater because the Kansas Supreme Court in that case surveyed
Kansas water law and concluded that "[n]o statute cited to us, and
none which we have found by our own research," gave Kansas officials
the authority to regulate groundwater. Id. at 611. See Neb. Except. Br.
25. The Kansas Supreme Court offered that statement in the context of the
State's power to regulate pumping from the Equus Beds, an intrastate groundwater
source. See Rep. 40 n.20. The court had no reason to consider the interstate
obligations arising from the Republican River Compact, which creates duties
among sovereign States and had no application to the precise issue at hand.
See id. at 39-40. Furthermore, although the Compact in our view obligated
Nebraska to adopt appropriate measures in the future (by new legislation
if necessary) to restrict groundwater consumption if necessary to maintain
required stream flows, it does not follow that the Compact itself must be
read to confer that authority on Kansas officials. Accordingly, the Kansas
Supreme Court's failure in Peterson to mention the Compact as a source of
authority for Kansas officials to regulate groundwater, and the subsequent
enactment of a law in 1945 to regulate groundwater in that State (see Neb.
Except. Br. 26-27), in no way detracts from the Master's interpretation
of the Compact.
The other cases that Nebraska cites similarly shed no light on the meaning
of the Compact. For example, Nebraska relies (Neb. Except. Br. 27-28) on
several cases showing that Nebraska limited its application of the prior
appropriation doctrine to surface water and, until 1957, did not regulate
a surface owner's pumping of groundwater. See State ex rel. Douglas v. Sporhase,
305 N.W.2d 614 (Neb. 1981); Drainage Dist. No. 1 v. Suburban Irrigation
Dist., 298 N.W. 131 (Neb. 1941); Olson v. City of Wahoo, 248 N.W. 304 (Neb.
1933). The mere fact that Nebraska had not taken action to regulate groundwater
at the time it entered into the Compact does not mean, however, that Nebraska
did not assume an obligation to do so if groundwater consumption in Nebraska
interfered with the Compact's apportionment of stream flows. See Rep. 39.
Contrary to Nebraska's suggestions (Neb. Except. Br. 29-30), a State's entry
into an interstate compact may result in the State assuming new duties,
enforceable as a matter of federal law, to protect the rights of the other
compacting States. See Hinderlider v. La Plata River & Cherry Creek
Ditch Co., 304 U.S. 92, 106 (1938); U.S. Opp. Mot. Br. 28 n.16.11
b. Nebraska contends that the Master's recommendation is: (i) contrary to
this Court's decision in Sporhase v. Nebraska ex rel. Douglas, 458 U.S.
941 (1982) (Neb. Except. Br. 31-35); (ii) contrary to state supreme court
interpretations of the Compact (id. at 35-37); (iii) inconsistent with various
federal statutes (id. at 38-43); and (iv) contrary to this Court's interpretation
of other interstate compacts (id. at 43-46). Each of those contentions is
without merit.
Nebraska contends that this Court's decision in Sporhase demonstrates the
Court's understanding that the Republican River Compact does not restrict
a compacting State's consumption of groundwater. That contention, however,
reads far too much into Sporhase. The Court ruled in that case that groundwater
is an article of commerce that is subject to Commerce Clause restrictions
(458 U.S. at 945-954), that Nebraska's restriction on interstate groundwater
transfers impose an impermissible burden on commerce (id. at 954-958), and
that Congress has not affirmatively authorized that otherwise impermissible
burden (id. at 958-960). The Court remarked, in that context, that various
interstate compacts, including the Republican River Compact, "are agreements
among States regarding rights to surface water." Id. at 959. As the
Master explained, that remark sheds no light on the meaning of the Compact.
Rep. 37-38. It "is not a specific determination that all of the cited
interstate compacts apply, or that any particular compact applies, only
to direct surface water diversions." Id. at 38. In any event, the Court's
remark is consistent with the Master's construction. The Master has not
interpreted the Compact to apportion groundwater as an in situ resource.
See U.S. Opp. Mot. Br. 15-16. Rather, he has concluded that the Compact
restricts Nebraska's groundwater consumption to the extent that the consumption
interferes with the Compact's apportionment of stream flows. See Rep. 37-38.
Nebraska also contends (Neb. Except. Br. 35-37) that the Master's interpretation
of the Compact conflicts with state supreme court interpretations of the
Compact. Three of the cited cases, however, provide no insight into the
Compact's meaning. See State v. Knapp, 207 P.2d 440 (1949); State ex rel.
Douglas v. Sporhase, 305 N.W.2d 614 (1981); Metropolitan Utilities Distr.
v. Merritt Beach Co., 140 N.W.2d 626 (1966). See Rep. 39-40. The fourth
case, Pioneer Irrigation Dists. v. Danielson, 658 P.2d 842 (Colo. 1983),
discusses the Compact, but has no bearing on the question presented here.
As the Master explained, "[t]he sole issue in Pioneer was the division
of jurisdiction between two state tribunals and the court had no occasion
to consider whether the Compact restricts the pumping of groundwater hydraulically
connected to surface flow." Rep. 41.
Nebraska next contends that judicial decisions interpreting two completely
unrelated statutes-the McCarran Amendment and the Clean Water Act-"have
rejected an implied inclusion of hydrologically or hydraulically connected
water (whether surface or ground) to those statutes." Neb. Except.
Br. 38. The McCarran Amendment, 43 U.S.C. 666, provides a waiver of the
United States' immunity from suit in general stream adjudications, while
the Clean Water Act, 33 U.S.C. 1251 et seq., addresses water quality issues.
The only common feature that the Compact and those enactments share is that
each involves water. That feature is insufficient to support the inference
that Congress intended those laws and the Compact to be interpreted in para
materia. See Nationsbank of North Carolina, N.A. v. Variable Annuity Life
Ins. Co., 513 U.S. 251, 262 (1995) ("a characterization fitting in
certain contexts may be unsuitable in others"); Atlantic Cleaners &
Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932) (courts properly
give words "the meaning which the legislature intended [they] should
have in each instance").
There is similarly no merit to Nebraska's argument (Neb. Except. Br. 43-46)
that the Master's recommendation conflicts with this Court's construction
of other compacts. To the contrary, the Court's decisions indicate that
there is nothing novel in recognizing that an interstate compact that apportions
stream flows can limit a compacting State's groundwater usage. This Court
has twice faced that question. In Kansas v. Colorado, No. 105, Orig., the
Court adopted the Special Master's uncontested recommendation that the Court
find that Colorado had violated the Arkansas River Compact, Pub. L. No.
82, 63 Stat. 145, through excessive groundwater pumping. 514 U.S. 673 (1995).
And in Texas v. New Mexico, No. 65, Orig., the Court issued a series of
rulings respecting the Pecos River Compact, Pub. L. No. 91, 63 Stat. 159,
which reflected the understanding that the Compact limited New Mexico's
right to consume groundwater. See 446 U.S. 540 (1980); 462 U.S. 554 (1983);
482 U.S. 124 (1987). In each of those original actions, the Compact in question
did not expressly apportion groundwater. See Rep. 34-37; see generally U.S.
Opp. Mot. Br. 24-27.
Nebraska offers the Kansas-Nebraska Big Blue River Compact, Pub. L. No.
92-308, 86 Stat. 193, as an example of an interstate compact that expressly
restricts groundwater consumption. That compact does so by apportioning
"natural flow" and defining that term to include "ground-water
infiltration to the stream." 86 Stat. 194. Nebraska essentially argues
that, because the compacting States expressly addressed groundwater effects
on stream flow in the Blue River Compact, compacts that do not do so should
be construed to exclude groundwater effects. The Master properly rejected
that argument, explaining that "[b]oth compacts restrict consumption
of groundwater to the extent it enters the stream flow, and they merely
use different language to accomplish that restriction." Rep. 30.
c. Nebraska contends that the Master erred in considering the RRCA's administration
of the Compact as an indicium of the compacting States' intent. Neb. Except.
Br. 46-47. The Master correctly discerned that the RRCA's practices, as
recorded in its official records, are highly relevant. Rep. 32-34. The Court
is under no obligation to consider those records. See pp. 13-15, 17-19,
supra. Nevertheless, they set out formulas for calculating the virgin water
supply and consumption that reflect an understanding among the compacting
States that the Compact restricts groundwater consumption:
First, with respect to alluvial groundwater, the Formulas simply do not
"define" alluvial water as part of stream flow; rather they expressly
state: "Diversions from groundwater shall be limited to those by wells
pumping from the alluvium along the stream channels . . . ." * * * The Formulas specifically identify alluvial groundwater as groundwater
and include groundwater diversions by pumping in the calculation of the
virgin water supply for every sub-basin. Second, with respect to table-land
groundwater, the Formulas merely deferred for the time being inclusion of
table-land diversions because of the lack of sufficient data to quantify
their effect.
Rep. 33-34. See U.S. Opp. Mot. Br. 22-24; see also U.S. Opp. Mot. Br. Add.
81a-102a (First Annual Report of the RRCA); id. at 103a-114a (Formulas).
D. The Court Should Reject Colorado's Exception To The Master's Recommendation
Colorado has also filed an exception to the Master's recommendation, but
its exception rests on a different theory. In Colorado's view, the Republican
River Compact's text is ambiguous on the question of whether it imposes
restrictions on groundwater pumping. Colo. Except. Br. 5-9. Colorado accordingly
urges the Court to consult the record of the Compact negotiations and administration,
which, in Colorado's view, demonstrates that the compacting States intended
the Compact to restrict groundwater pumping from alluvial sources, but not
from the Ogallala Aquifer. The Master correctly rejected that argument.
Rep. 41-44.
The Master concluded that the "Colorado contention is impossible to
square with the Compact's broad and inclusive definition of 'virgin water
supply.'" Rep. 42-43. He noted that "the express language of the
Compact * * * allocates the entire water supply of the Basin 'undepleted
by the activities of man.'" Id. at 42. Contrary to Colorado's assertions
(Colo. Except. Br. 10-21), the Compact does not create any exceptions based
on the origins of the water or "the difficulty of quantifying the effect
of one form of depletion (i.e., table-land groundwater pumping)." Rep.
43. Rather, "the drafter's true concern was to take into account any
form of depletion-whether by alluvial or table-land pumping or otherwise."
Ibid. "To protect each State's Compact allocation-the most important
substantive right each State receives in the Compact-the drafters surely
intended to forbid a State's consumptive use of Basin stream flows in excess
of that State's allocation, by whatever means that excessive use occurs."
Ibid.
As the Master additionally noted, "the RRCA has put a practical construction
on the Compact adverse to the Colorado position." Rep. 43. The RRCA's
First Annual Report demonstrates that the RRCA was aware that groundwater
pumping from non-alluvial sources could deplete Republican River Basin stream
flows. See U.S. Opp. Mot. Br. Add. 87a-88a, 90a-91a. The RRCA made clear
that it included only alluvial groundwater pumping in its virgin water supply
formulas because the RRCA did not have sufficient data, at that time, to
estimate the effects of non-alluvial groundwater pumping. See ibid.; see
also id. at 97a-98a. Since that time, the RRCA has repeatedly called for
more data and research to determine those effects. Rep. 43-44. "The
RRCA would have no reason to make that repeated call if it did not understand
itself to be bound by the Compact to incorporate the results of that research
in its Formulas for calculating virgin water supply and consumptive use."
Id. at 44. See U.S. Opp. Mot. Br. 22-24.
E. The Court Should Deny The Motion To Dismiss And Recommit The Case To
The Special Master For Further Proceedings
For the foregoing reasons, this Court should overrule the objections of
Nebraska and Colorado, accept the Special Master's recommendation, and rule
that the Republican River Compact restricts a compacting State's consumption
of groundwater to the extent the consumption depletes stream flow in the
Republican River Basin. In accordance with the Court's normal practice,
the case should be recommitted to the Master for further proceedings consistent
with that ruling.
If the Court adopts the Master's recommendation, the Court's ruling will
provide the parties with clear guidance for future proceedings on the merits
of Kansas's primary claim. Kansas will bear the burden of establishing,
as a matter of fact, that groundwater pumping in Nebraska has depleted Republican
River Basin stream flows. To make that showing, Kansas will need to demonstrate
the hydrological connection between Basin stream flows and groundwater pumping-whether
from alluvial or table-land wells- and Kansas will need to establish the
net stream flow losses resulting from groundwater consumption. In our experience,
the adversarial process is not the ideal mechanism for carrying those inquiries.
The resolution of those factual issues may entail the collection of a substantial
amount of data covering a large geographic area and may require resort to
novel or expensive scientific techniques.
The Court might accordingly wish to remind the parties that consensual mechanisms
remain available to resolve their differences. The Republican River Compact
imposes a duty on Colorado, Kansas, and Nebraska to administer the Compact
through cooperative efforts. See Art. IX (Rep. App. A9). This Court's clarification
of an outstanding legal issue that has hampered interstate cooperation may
provide the basis for the States to reach a pragmatic accord on how to regulate
groundwater pumping that affects stream flow. The dispute over groundwater
effects is likely to be one that could be "wisely solved by co-operative
study and by conference and mutual concession." Texas v. New Mexico,
462 U.S. at 575.12
CONCLUSION
The motion to dismiss should be denied and the case should be recommitted
to the Special Master.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
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
JUNE 2000
1 The Master's First Report sets out the text of the Republican River Compact
(Rep. App. A1-A14), a map incorporated as part of the Compact (id. at A15),
and a map of the Republican River Basin from Kansas's complaint (Rep. App.
B). The Brief of the United States as Amicus Curiae in Opposition to the
Motion to Dismiss describes the Republican River Basin (U.S. Opp. Mot. Br.
2-4), the formulation of the Compact (id. at 4-6), the terms of the Compact
(id. at 6-9), post-Compact water resource developments (id. at 9), and the
current controversy (id. at 10-12).
2 As the Master explained, the term "alluvial" groundwater basically
describes groundwater pumped from the alluvium deposited by stream flow
in the valley floors. See Rep. 5 n.6. The term "table-land" or
"upland" groundwater describes non-alluvial groundwater. Ibid.
The United States understands the term "Ogallala Aquifer" groundwater
to describe non-alluvial groundwater that is pumped from an identifiable
geologic stratum that underlies, and extends beyond, the Republican River
Basin. For purposes of Nebraska's motion to dismiss, the Master has not
distinguished between Ogallala Aquifer groundwater and other types of non-alluvial
groundwater. Ibid.
3 The United States noted that this common-sense conclusion finds support
in (1) the text of the Compact (U.S. Opp. Mot. Br. 15, 19-21); (2) the Compact's
negotiation history (id. at 15, 18-19); (3) the States' practical construction
of the Compact, as reflected in their published formulas for computing the
annual virgin water supply and water consumption (id. at 22-24); and (4)
this Court's decisions construing other interstate water compacts (id. at
25-27).
4 The litigation in Nebraska v. Wyoming, Kansas v. Colorado, and Arizona
v. California is ongoing to this day. In Arizona v. California (No. 8, Orig.),
which was commenced in 1952, the Court is currently considering exceptions
to the Master's most recent report. See 120 S. Ct. 296 (1999) (argued Apr.
25, 2000). In Kansas v. Colorado (No. 105, Orig.), which was commenced in
1985, the Master is preparing a report on the question of an appropriate
remedy. In Nebraska v. Wyoming (No. 108, Orig.), which was commenced in
1986, the Master has postponed a trial, scheduled to begin on May 10, 2000,
to facilitate a consensual resolution of the dispute. Newspaper reports
describing that litigation state that Nebraska and Wyoming have each spent
in excess of $20 million on the case. See Julie Anderson, States Ponder
Deal on Platte, Omaha World Herald, May 6, 2000 at 2; Joan Barron, Wyo Lawyers
Praised for North Platte Deal, Casper Star, May 12, 2000, at B2.
5 The Brief of the United States as Amicus Curiae in Opposition to the Motion
to Dismiss, which was filed in this Court and considered by the Master,
provides a detailed analysis of the Compact. That brief, which we cross-reference
herein, includes an addendum that reproduces the official minutes of the
Compact negotiations (U.S. Opp. Mot. Br. Add. 13a-80a) and selected reports
of the Republican River Compact Administration (RRCA) (id. at 81a-114a).
6 The Master also discussed judicial precedent cited by the parties (Rep.
34-38) and Colorado's position on the motion to dismiss, which draws a distinction
between pumping groundwater from the alluvium and pumping groundwater from
the Ogallaia Aquifer (id. at 41-44). We discuss those matters infra in response
to the Nebraska and Colorado exceptions.
7 As the Master noted, Rule 12(b)(6) required him to assume the fact of
an hydraulic connection between stream flow and groundwater for purposes
of the motion to dismiss. Rep. 1-2, 20-21. He also noted, however, that
this connection "is a well established scientific fact." Id. at
2 n.3.
8 Nebraska acknowledged below that the Court may take notice of items in
the public record (Neb. Br. 5), and it did not ask the Master to recommend
conversion of the proceeding to one for summary judgment.
9 A Compact is federal legislation, and parties may therefore examine those
official materials, which are analogous to legislative history or administrative
interpretations, as an aid in determining the Compact's meaning. To the
extent that the Compact is also a contract, those records are subject to
judicial notice. See, e.g., Tucker v. Texas, 326 U.S. 517, 519 n.1 (1946)
(judicial notice of regulations of the Federal Public Housing Authority);
Bowles v. United States, 319 U.S. 33, 35 (1943) (judicial notice of a decision
of the Director of the Selective Service); Thornton v. United States, 271
U.S. 414, 420 (1926) (judicial notice of regulations issued by the Secretary
of Agriculture); The Paquete Habana, 175 U.S. 677, 696 (1900) (judicial
notice of records of the Navy Department); Underhill v. Hernandez, 168 U.S.
250, 253 (1897) (judicial notice of materials within the archives of the
State Department); Caha v. United States, 152 U.S. 211, 221-222 (1894) (judicial
notice of rules and regulations of the Interior Department); see also 2
Moore's Federal Practice § 12.34[2] (collecting lower court cases).
To the extent a compact resembles a treaty, reference to minutes and other
aspects of the negotiating history, as well as subsequent understandings
and administration are relevant. See, e.g., Minnesota v. Mille Lacs Band
of Chippewa Indians, 526 U.S. 172, 197-199 (1999); El Al Israel Airlines,
Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 167, 170, 172-174 (1999); South Dakota
v. Yankton Sioux Tribe, 522 U.S. 329, 334, 336, 347, 351-354 (1998); Sale
v. Haitian Centers Council, Inc., 509 U.S. 155, 184-187 (1993); Menominee
Indian Tribe v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998) (court may take
judicial notice on historical documents bearing on the meaning of an Indian
treaty), cert. denied., 119 S. Ct. 1459 (1999).
10 Kansas submitted additional materials to the Master, including correspondence
and internal governmental memoranda, and provided an authenticating affidavit.
See Kan. Br. 12 n.1; see also Kan. Br. App. 1a-11a. It is unnecessary to
determine whether each of those items may be considered in deciding a motion
under Rule 12(b)(6), because the records of the Compact negotiations and
the RRCA records, individually and collectively, are more than adequate
to resolve any Compact ambiguities.
11 The Compact negotiators expressly stated that their deliberations were
"guided by [this Court's decision in Hinderlider v. La Plata River
& Cherry Creek Ditch Co., 304 U.S. 92, 106 (1938)], establishing the
rights of states to make an equitable division of the waters of an interstate
stream, regardless of its effect upon the presumably vested interests in
either of the signatory states." Minutes of the Third Meeting of the
Republican River Compact Commission at Lincoln, Nebraska, U.S. Br. Opp.
Mot. Add. 23a.
12 The United States Geological Survey (USGS) is currently conducting a
study of groundwater resources in the Republican River Basin. That study,
which the USGS expects to complete in early 2001, is likely to provide additional
information respecting those resources that may assist the States in reaching
an accord.