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SCOTUS Exercises Equitable Power in Kansas Water Rights Dispute

By Mark Wilson, Esq. on February 24, 2015 | Last updated on March 21, 2019

In a fractured opinion authored by Justice Elena Kagan, the Supreme Court sided with Kansas in a battle over water rights in the Republican River Basin.

Kagan, along with the Court's four liberals, signed on to the whole opinion. Chief Justice Roberts agreed, but only to parts I and III. Justice Scalia concurred and dissented separately, and Justice Thomas concurred and dissented in part, joined by Justice Alito, Roberts, and Scalia.

Got all that?

I Feel Some Disgorgement Coming On

In an opinion sprinkled with water-related puns, Justice Kagan details the sordid history of the battle between Kansas, Nebraska, and Colorado over the water in the Republican River Basin. In 1943, the three states entered a compact of use of that water, which mostly goes to farmland. In 1997, Kansas said Nebraska was taking too much water. That issue was settled in 2000, but in 2007, Kansas and Nebraska each complained that the other was again using too much water. The Supreme Court appointed a Special Master to adjudicate that dispute; the Special Master concluded Nebraska "knowingly failed" to comply with the agreement and fined it for the breach.

Both Kansas and Nebraska objected to the Special Master's conclusions, which involved levying disgorgement damages on Nebraska (because the benefit it received outstripped the amount of damages it paid to Kansas) and reforming the agreement's accounting procedures to stop charging Nebraska for imported water.

Kagan noted that the Court's original jurisdiction -- which includes adjudicating disputes between states -- is "basically equitable in nature." That, along with the Court's inherent authority to adjudicate water rights disputes, provided the foundation for affirming the Special Master's recommendations, both of which involved equitable remedies.

These Restatements Today! Back When I Was Your Age ...

That's why there are three concurring/dissenting opinions. While Kagan contended the Court had equitable authority to apply the equitable remedy of disgorgement, Thomas disagreed, joined by Roberts, Scalia, and Alito: This is basically a contract dispute, Thomas said, and by imposing extraordinary equitable remedies, the Court exceeded its authority, which must be balanced against "the inherent authority of sovereign States to regulate the use of water."

A states' rights argument? From Justice Thomas? Stop the presses!

Thomas disagreed with disgorgement as a remedy because, in his opinion, the Restatement (Third) of Restitution and Unjust Enrichment is no longer reliable when it comes to the law. "One reviewer of [Section] 39 has described it as a 'novel extension' of restitution principles that 'will alter the doctrinal landscape of contract law,'" he wrote. Nevertheless, he said, Nebraska's actions weren't deliberate enough to invoke restitution.

Justice Scalia's concurring opinion, with a bit of a "Hey, you kids! Get off my lawn!" tone, took a swipe at the Restatements of the Law themselves, criticizing them for deviating from their original mission of descriptively documenting the state of the law. "Over time, the Restatements' authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be," he wrote, as though a concept like rewriting the law to suit the way one wants it to be were wholly foreign to him.

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