KANSAS v. COLORADO on exception to report of special master

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98 OCTOBER TERM, 2008
Syllabus
KANSAS v. COLORADO
on exception to report of special master
No. 105, Orig. Argued December 1, 2008—Decided March 9, 2009
Kansas has filed an exception to the Special Master’s Fifth and Final Re
port in this action concerning the Arkansas River, contending that the
Special Master erred in concluding that 28 U. S. C. § 1821(b), which sets
the witness attendance fee for a proceeding in “any court of the United
States” at $40 per day, applies to cases within this Court’s original juris
diction. This determination led to an award considerably lower than
the amount that Kansas, as the prevailing party, would have received
under its alternative calculation.
Held: Expert witness attendance fees that are available in cases brought
under this Court’s original jurisdiction shall be the same as the expert
witness attendance fees that would be available in a district court under
§ 1821(b). Kansas contends that Congress has never attempted to regu
late a prevailing party’s recovery of expert witness fees in a case
brought under this Court’s original jurisdiction, that Article III of the
Constitution would not permit Congress to impose such a restriction,
and thus, that the holding in Crawford Fitting Co. v. J. T. Gibbons, Inc.,
482 U. S. 437, 444—that district courts must adhere to § 1821(b)’s wit
ness attendance fee limitations—is not relevant here. Assuming that
Kansas’ interpretation is correct and that this Court has discretion to
determine the fees that are recoverable in original actions, it is never
theless appropriate to follow § 1821(b). Congress’ decision not to per
mit a prevailing party in the lower courts to recover its actual witness
fee expenses departs only slightly from the “American Rule,” under
which parties generally bear their own expenses. There is no good
reason why the rule for recovering expert witness fees should differ
markedly depending on whether a case is originally brought in district
court or this Court. District-court cases may be no less complex than
those brought originally in this Court. And while the parties in origi
nal cases may incur substantial expert costs, as happened here, the same
is frequently true in lower court litigation. Thus, assuming that the
matter is left entirely to this Court’s discretion, the best approach is to
have a uniform rule that applies in all federal cases. Pp. 101–103.
Exception overruled.
Alito, J., delivered the opinion for a unanimous Court. Roberts, C. J.,
filed a concurring opinion, in which Souter, J., joined, post, p. 109.

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Opinion of the Court
Stephen N. Six, Attorney General of Kansas, argued the
cause for plaintiff. With him on the brief were Michael C.
Leitch, Deputy Attorney General, John M. Cassidy, Assist
ant Attorney General, and Leland E. Rolfs and John B.
Draper, Special Assistant Attorneys General.
John W. Suthers, Attorney General of Colorado, argued
the cause for defendant. With him on the brief were David
W. Robbins and Dennis M. Montgomery, Special Assistant
Attorneys General.
Justice Alito delivered the opinion of the Court.
This is the latest in a line of contested matters that have
come before us in this action that was brought in this Court
by the State of Kansas against the State of Colorado con
cerning the Arkansas River. The Special Master has filed a
Fifth and Final Report that includes a proposed judgment
and decree, and Kansas has filed an exception to the Report,
contending that the Special Master erred in concluding that
28 U. S. C. § 1821, which sets the witness attendance fee for
a proceeding in “any court of the United States” at $40 per
day, applies to cases within this Court’s original jurisdiction.
Assuming for the sake of argument that Kansas is correct in
its interpretation of the statutes at issue in this matter and
that this Court has the authority to determine the amount
that Kansas should recover in expert witness fees, we hold
that the fee set out in § 1821 is nevertheless the appropriate
fee. Accordingly, we overrule Kansas’ exception and ap
prove the entry of the proposed judgment and decree.
I
Kansas filed this original action in 1985, claiming that Col
orado had violated the Arkansas River Compact (Compact),1
1 The Compact, which was approved by negotiators for the States of
Kansas and Colorado in 1948, allows post-Compact development in Colo
rado provided that such development does not cause material depletions
of usable stateline flows.

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100 KANSAS v. COLORADO
Opinion of the Court
63 Stat. 145, by drilling irrigation wells that depleted water
that should have been available for users in Kansas. In
1995, we accepted the recommendation of the Special Master
that Colorado’s wells had violated the Compact, and we re
manded for further proceedings to determine appropriate
remedies. See Kansas v. Colorado, 514 U. S. 673. The
Special Master then recommended that monetary damages
be awarded as compensation. In 2001, we accepted all but
one of the Special Master’s recommendations, modifying the
remaining recommendation with respect to the starting date
for an award of prejudgment interest. See Kansas v. Colo
rado, 533 U. S. 1. In 2004, we approved additional recom
mendations by the Special Master,2 and the case was again
remanded. See Kansas v. Colorado, 543 U. S. 86.
On remand, the Special Master approved a schedule to re
solve remaining disputed issues. Consistent with our
guidance, experts for the States were assigned greater re
sponsibility for discussing and resolving issues. Because
of the contributions of expert witnesses and the use of
the Hydrologic-Institutional Model to determine compliance
with the Compact, the parties resolved most of the disputed
issues. See id., at 89.
The sole remaining issue concerns Kansas’ application for
expert witness fees. After the Special Master determined
that Kansas was the prevailing party for purposes of award
ing “costs,” Kansas submitted two alternative proposals for
calculating the amount that it was entitled to recover for the
costs it had incurred in retaining expert witnesses. The
first proposal, which Kansas advocated, was based on the
2 The recommendations we approved in 2004 were: (1) that the Court
not appoint a River Master; (2) that the amount of prejudgment interest
be set; (3) that calculations regarding river depletions be made on a 10
year basis in order to even out possible inaccuracies in computer modeling;
and (4) that a Colorado Water Court be given the authority to make cer
tain determinations relevant to continuing implementation of agreements
reached through this litigation.

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Opinion of the Court
assumption that these fees were not limited by the $40 per
day attendance fee set out in § 1821(b) and called for an
award of $9,214,727.81 in expert witness fees. The other
calculation, which was based on the assumption that § 1821(b)
did apply, calculated the amount that Kansas was entitled to
recover for expert witness fees at $162,927.94.
After hearing argument, the Special Master held that
§ 1821 applies in cases within our original jurisdiction.
Based on this holding, the two States entered into a cost
settlement agreement that provided for total witness costs
of $199,577.19 but preserved the right of the States to file
exceptions to the Special Master’s rulings on legal issues re
garding costs.
II
Kansas argues that the Special Master erred in holding
that § 1821(b) applies to cases within our original jurisdic
tion. Kansas contends that early statutes governing the
award of costs in cases in the lower courts did not apply to
this Court’s original cases and that this scheme has been
carried forward to the present day. Kansas notes that the
statutory provision authorizing the taxation of costs, 28
U. S. C. § 1920, authorizes “[a] judge or clerk of any court of
the United States” to tax as costs “[f]ees . . . for . . . wit
nesses” and that the definition of the term “judge . . . of the
United States,” as used in Title 28, does not include a Justice
of this Court. In Kansas’ view, § 1911, which provides that
“[t]he Supreme Court may fix the fees to be charged by its
clerk,” manifests Congress’ understanding that we should
have the authority to determine the fees that may be recov
ered by a prevailing party in a case brought under our origi
nal jurisdiction. Kansas further maintains that “[e]ven if
Congress had intended to regulate taxation of costs in the
original jurisdiction of this Court, such an act would be sub
ject to the Court’s ultimate authority to regulate procedure
within its constitutionally created original jurisdiction.”
Kansas’ Exception and Brief 10. Kansas therefore contends

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Opinion of the Court
that our holding in Crawford Fitting Co. v. J. T. Gibbons,
Inc., 482 U. S. 437, 444 (1987), that district courts must ad
here to the witness attendance fee limitations set forth in
§ 1821(b), is not relevant here.
Colorado disagrees. Citing our decision in Crawford Fit
ting, Colorado argues that the $40 per day witness attend
ance fee limitation of § 1821(b) applies not only to cases in
the district courts but also to our original cases. Colorado
notes that § 1821(a)(1) prescribes the witness attendance fee
for a proceeding in “any court of the United States” and that
§ 1821(a)(2) defines the term “ ‘court of the United States’ ”
to include this Court. Colorado also contends that there is
no precedent to support the argument that the Constitution
prohibits Congress from imposing a limit on expert witness
fees in cases within our original jurisdiction, and Colorado
sees no justification for an award of costs for expert witness
fees in excess of the limit in § 1821(b).
III
We find it unnecessary to decide whether Congress has
attempted to regulate the recovery of expert witness fees
by a prevailing party in a case brought under our original
jurisdiction. Nor do we decide whether Kansas is correct in
contending that Article III of the Constitution does not per
mit Congress to impose such a restriction. Assuming for
the sake of argument that Kansas is correct in arguing that
we have the discretion to determine the fees that are recov
erable in original actions, we conclude that it is nevertheless
appropriate to follow § 1821(b).
Congress’ decision not to permit a prevailing party in the
lower courts to recover its actual witness fee expenses may
be seen as a decision to depart only slightly from the so
called “American Rule,” under which parties generally bear
their own expenses. See Alyeska Pipeline Service Co. v.
Wilderness Society, 421 U. S. 240 (1975) (the American Rule
applies not only to attorney’s fees but also other costs of

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Judgment
litigation, including expert witness fees and miscellaneous
costs such as transcripts and duplication). While this policy
choice is debatable, we see no good reason why the rule re
garding the recovery of expert witness fees should differ
markedly depending on whether a case is originally brought
in a district court or in this Court. Many cases brought in
the district courts are no less complex than those brought
originally in this Court. And while the parties in our origi
nal cases sometimes are required to incur very substantial
expert costs, as happened in the present case, the same is
frequently true in lower court litigation. Thus, assuming
for the sake of argument that the matter is left entirely to
our discretion, we conclude that the best approach is to have
a uniform rule that applies in all federal cases.
We therefore hold that the expert witness attendance fees
that are available in cases brought under our original juris
diction shall be the same as the expert witness attendance
fees that would be available in a district court under
§ 1821(b). We thus overrule Kansas’ exception to the Re
port of the Special Master.
It is so ordered.
JUDGMENT
Judgment is awarded against the State of Colorado in
favor of the State of Kansas for violations of the Arkan
sas River Compact resulting from postcompact well pump
ing in Colorado. Judgment is awarded in the amount of
$34,615,146.00 for damages and prejudgment interest, includ
ing the required adjustment for inflation, arising from deple
tions of usable streamflow of the Arkansas River at the
Colorado-Kansas Stateline in the amount of 428,005 acre-feet
of water during the period 1950–1996. The damages were
paid in full on April 29, 2005. Costs through January 31,
2006, including reallocation of Kansas’ share of the Special
Master’s fees and expenses, are awarded to Kansas in the
amount of $1,109,946.73. These costs were paid in full on

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104 KANSAS v. COLORADO
Decree
June 29, 2006. By Stipulation, $100,000.00 of the Special
Master’s fees and expenses are reallocated from the United
States to Kansas.
Kansas’ claims regarding the Winter Water Storage Pro
gram and the operation of Trinidad Reservoir and all Colo
rado Counterclaims are hereby dismissed.
DECREE
I. Injunction
A. General Provisions
1. It is Ordered, Adjudged, and Decreed that the State of
Colorado, its officers, attorneys, agents, and employees are
hereby enjoined to comply with Article IV–D of the Arkan
sas River Compact by not materially depleting the waters of
the Arkansas River, as defined in Article III of the Compact,
in usable quantity or availability for use to the water users
in Kansas under the Compact by Groundwater Pumping, as
prescribed in this Decree, and more particularly:
a. To prevent Groundwater Pumping in excess of the
precompact pumping allowance of 15,000 acre-feet per
year without Replacement of depletions to Usable State
line Flow in accordance with this Decree;
b. To enforce the Colorado Use Rules with respect to
Groundwater Pumping, unless John Martin Reservoir is
spilling and Stateline water is passing Garden City, Kan
sas; and
c. To enforce the Colorado Measurement Rules with
respect to Groundwater Pumping.
2. Compliance with this Decree shall constitute Compact
compliance with respect to Groundwater Pumping.
B. Determination of Compact Compliance With Respect to
Groundwater Pumping
1. Compact compliance with respect to Groundwater
Pumping shall be determined using the results of the H–I
Model over a moving ten-year period beginning with 1997,

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Decree
in accordance with the Compact Compliance Procedures de
scribed in Appendix A.* Any Shortfall shall be made up by
Colorado as specified in Section I.C of this Decree.
2. Annual Calculations of depletions and accretions to Us
able Stateline Flow shall be determined using the H–I
Model, in accordance with the procedures described in Ap
pendix B and the Durbin usable flow method with the Larson
coefficients, which is documented in Appendix C. Annual
Calculations shall be done on a calendar year basis unless
the States agree to a different year for the calculations. Ac
cumulation of accretions shall be limited as described in Ap
pendix D. The Annual Calculations for each of the years
1997–2006, found in Appendix E, are final, except as set forth
in Section III of this Decree. Similarly, the results of
Annual Calculations for years after 2006 shall be final for
use in the ten-year Compact compliance accounting, when
determined as provided in Appendices A and B, subject
to the same provisos applicable to the 1997–2006 Annual
Calculations.
3. Colorado shall be entitled to credit for Replacement of
depletions to Usable Stateline Flow. The credit for Re
placement shall be determined using the H–I Model, except
for credit derived from operation of the Offset Account,
which shall be determined as set out in Appendix F, and
except for credit for direct deliveries of water to the State
line if the Offset Account does not exist, which shall be deter
mined as set out in Appendix A.
4. The H–I Model may be improved by agreement of the
States or pursuant to the Dispute Resolution Procedure con
tained in Appendix H.
C. Repayment of Shortfalls
1. If there is a Shortfall, Colorado shall make up the
Shortfall in accordance with the provisions of Appendix A.
*[Reporter’s Note: The appendices will be found in the Final Re
port of the Special Master, available at http://www.supremecourtus.gov/
SpecMastRpt/SpecMastRpt.html and in Clerk of Court’s case file.]

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2. Colorado shall make up a Shortfall by delivering water
to the Offset Account in John Martin Reservoir to the extent
that space is available. To the extent that space is not ini
tially available in the Offset Account, Colorado shall make
up the rest of such Shortfall by delivering water to the Offset
Account as space becomes available. The timing, account
ing, crediting, notice, and other matters related to deliveries
of water to make up a Shortfall shall be accomplished pursu
ant to Appendix A.
II. Dispute Resolution
The States shall work together informally to the maximum
extent possible to resolve any disagreements regarding im
plementation of this Decree. Disagreements that cannot be
so resolved shall be submitted to the stipulated Dispute Res
olution Procedure contained in Appendix H.
III. Modification of Appendices to the Decree
Appendices A–J may be modified only: (a) by agreement
of the States or (b) pursuant to the Dispute Resolution Pro
cedure, provided that the Colorado Measurement Rules and
Colorado Use Rules may be amended by Colorado to the
extent that Colorado can demonstrate that any such amend
ments will adequately protect Kansas’ rights under the Com
pact, and further provided that Appendix E shall not be
modified except that it shall be subject to later determina
tions of Replacement credits to be applied toward Colorado’s
Compact obligations by the Colorado Division 2 Water Court
and any appeals therefrom, and further subject to the right
of Kansas to seek relief from such Colorado Water Court
determinations under the Court’s original jurisdiction. Dis
putes arising under this Section III shall be subject to the
Dispute Resolution Procedure.
IV. Retention of Jurisdiction
A. The Court retains jurisdiction for a limited period of
time after the end of the initial ten-year startup period (end

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Decree
ing in 2006) for the purpose of evaluating the sufficiency
of the Colorado Use Rules and their administration and
whether changes to this Decree are needed to ensure Com
pact compliance. The procedures to be followed are set out
in Appendix B.1, Part VII.
B. The retained jurisdiction provided in Section IV.A of
this Decree shall terminate at the end of 2008, unless, prior
to December 31, 2008, either State has notified the Special
Master that there is a dispute concerning the sufficiency or
administration of the Use Rules that has been submitted to
the Dispute Resolution Procedure. If either State notifies
the Special Master as provided herein, the retained jurisdic
tion shall continue, and the States, within 60 days from the
conclusion of the Dispute Resolution Procedure, shall re
quest either further proceedings before the Special Master
or termination of the retained jurisdiction provided for in
Section IV.A of this Decree. The Special Master shall rec
ommend to the Court such action as he deems appropriate.
The Special Master shall be discharged upon termination of
the retained jurisdiction provided for in Section IV.A of
this Decree.
C. Any of the parties may apply at the foot of this Decree
for its amendment or for further relief. The Court retains
jurisdiction of this suit for the purpose of any order, direc
tion, or modification of the Decree, or any supplementary
decree, that may at any time be deemed proper in relation
to the subject matter in controversy.
D. No application for relief under the retained jurisdiction
in this Section IV shall be accepted unless the dispute has
first been submitted to the Dispute Resolution Procedure.
V. Definitions
Whenever used in this Judgment and Decree, including
Appendices, terms defined in the Compact shall have the
meaning ascribed to them in the Compact; in addition, the
following terms shall mean:

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108 KANSAS v. COLORADO
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Acre-foot: The volume of water required to cover one acre
of land to a depth of one foot, which is equal to 325,851
gallons;
Annual Calculations: The calculation for each year of
depletions and accretions to Usable Stateline Flow using the
H–I Model, as described in Appendix B;
Appendix: One of the Appendices listed in Section VI of
this Decree and included in Volumes II and III of the Special
Master’s Fifth and Final Report in this case;
Acceptable Sources of Water: As defined in Appendix G;
ARCA: The Arkansas River Compact Administration cre
ated by Article VIII of the Compact;
Colorado Measurement Rules: Amended Rules Governing
the Measurement of Tributary Ground Water Diversions Lo
cated in the Arkansas River Basin, revised November 30,
2005, contained in Appendix I.1, as they may be amended
from time to time in accordance with Article III of this
Decree;
Colorado Use Rules: Amended Rules and Regulations
Governing the Diversion and Use of Tributary Ground
Water in the Arkansas River Basin, Colorado, Kan. Exh.
1123, contained in Appendix J.1, as they may be amended
from time to time in accordance with Article III of this
Decree;
Compact: The Arkansas River Compact, 63 Stat. 145
(1949); Kan. Stat. Ann. § 82a– 520; Colo. Rev. Stat.
§ 37–69–101;
Dispute Resolution Procedure: As set out in Appendix H;
Groundwater Pumping: Pumping of water from wells
(other than the Wiley/Sapp Wells) in excess of 50 gallons per
minute, from the alluvial and surficial aquifers along the
mainstem of the Arkansas River between Pueblo, Colorado,
and the Stateline within the domain of the H–I Model de
scribed in Appendix C.1;
H–I Model: The Hydrologic-Institutional Model as de
scribed and documented in Appendix C.1;

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Roberts, C. J., concurring
John Martin Reservoir: The reservoir constructed and op
erated by the United States Army Corps of Engineers on
the mainstem of the Arkansas River approximately 58 miles
upstream from the Stateline, as referred to in the Compact;
Offset Account: The storage account established in John
Martin Reservoir and operated in accordance with the
ARCA Resolution Concerning an Offset Account in John
Martin Reservoir for Colorado Pumping, dated March 17,
1997, as amended twice on March 30, 1998, and contained in
Appendix L, as the same may be further amended by the
ARCA;
Replacement: Delivery of water from Acceptable Sources
of Water to prevent depletions caused by Groundwater
Pumping;
Shortfall: A net depletion to Usable Stateline Flow based
on the results of the H–I Model over a ten-year period using
the Compact Compliance Accounting Procedures described
in Appendix A;
Usable Stateline Flow: Stateline flow as simulated by the
H–I Model and determined to be usable pursuant to the Dur
bin usable flow method with the Larson coefficients, as set
out in Appendix C.2; and
Wiley/Sapp Wells: Wells decreed as alternate points of
diversion for precompact surface water rights in Colorado
by the District Court, Water Div. 2, State of Colorado, Case
Nos. 82CW115 (W–4496), 82CW125 (W–4497), and 89CW82;
see App. to Third Report of the Special Master 59–61.
Chief Justice Roberts, with whom Justice Souter
joins, concurring.
I join the opinion of the Court in full. I do so only, how
ever, because the opinion expressly and carefully makes clear
that it in no way infringes this Court’s authority to decide
on its own, in original cases, whether there should be witness
fees and what they should be.

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110 KANSAS v. COLORADO
Roberts, C. J., concurring
Our appellate jurisdiction is, under the Constitution, sub
ject to “such Exceptions, and . . . such Regulations as the
Congress shall make.” Art. III, § 2. Our original jurisdic
tion is not. The Framers presumably “act[ed] intentionally
and purposely in the disparate inclusion or exclusion” of
these terms. INS v. Cardoza-Fonseca, 480 U. S. 421, 432
(1987) (internal quotation marks omitted).
It is accordingly our responsibility to determine matters
related to our original jurisdiction, including the availability
and amount of witness fees. For the reasons given by the
Court, I agree that $40 is a reasonable choice for the fees at
issue here. But the choice is ours.