PART FOUR: The Court as a Court of Original Jurisdiction

Kansas v. Nebraska

Finally, many people do not realize that the Supreme Court has original jurisdiction over a handful of matters, including disputes between states. While these cases are rare, this year reminded us that they do exist. This was not the first time Kansas v. Nebraska came before the Supreme Court. [Read our Preview here.] Fifteen years ago, Kansas prevailed on its original claim that Nebraska’s use of hydraulic wells to drain the Republican River and its tributaries constituted consumption that counted against Nebraska’s allocated share of the Republican River under a 1943 compact. The Court appointed a Special Master to handle proceedings and give findings and suggestions to the Court. The parties entered into a settlement agreement in 2003, but Kansas claimed Nebraska violated that agreement years later. In 2011, the Court again appointed a Special Master who concluded that Nebraska used more water than it should, and that the Court should use its equitable powers to craft a remedy to suit the situation. The Special Master also recommended that the Court enter judgment in the amount of $5.5 million against Nebraska and in favor of Kansas. Justice Kagan, in her majority opinion joined by Justices Kennedy, Ginsburg, Breyer and Sotomayor in full and by Roberts Scalia and Thomas in part, found that Nebraska “knowingly failed” to comply with its settlement obligations and as a result had to pay $1.8 million to Kansas in disgorgement of profits but denied further equitable relief after determining that the money award was sufficient to compensate Kansas for its loss.