On Feb. 24 and 28 in 1902, Colorado and Kansas went head to head over the Arkansas River in the federal court system for the first time. The U.S. Supreme Court would hear the case more than seven times and the argument over state water usage would last for more than 100 years.
In this first case in 1902, the Supreme Court delayed its decision until its authority and additional evidence became apparent. Kansas presented its assertion that Colorado was diverting too much water from the river before it began flowing over the Kansas border, thereby reducing the water levels to the point that Kansas was unable to use much if any. By 1907, the Supreme Court decided that Colorado was indeed diverting a large amount of water but that it was justified to take it because it was being used for agricultural reasons.
Another 35 years passed before Kansas raised the issue again. In 1943, the Supreme Court determined that, since the two states had not made any form of agreement in the matter, Kansas lacked legal standing to continue litigation against Colorado in the matter as no documentation inferred that Kansas had any right to a certain apportionment of the water from the river. In 1949, Congress approved the Arkansas River Compact which was intended to act as a written agreement for apportionment and a means to settle disputes outside of the Supreme Court.
By 1985, Kansas brought the matter to the Supreme Court again, claiming that Colorado violated the compact by diverting too much of the river. Over the following two decades, Kansas spent more than $20 million in attempts to convince SCOTUS of an infringement on the compact.
In 1995, the Supreme Court decided that Colorado had violated the compact by pumping too much water into a groundwater aquifer since 1949 but simultaneously ruled that Kansas was not entitled to any damages. By 2001, the court took a different view on the subject and ruled that Kansas was entitled to monetary damages for Colorado’s diversions since 1969 with interest. Kansas argued for damages to be paid in water instead of cash, but the Supreme Court dismissed the objection. And by mid-2005, Colorado paid Kansas approximately $34 million in damages and $1 million in legal fees. March 2009 returned the most recent Supreme Court ruling that Colorado was required to use a hydrologic-institutional model to come into compliance with apportionment with Kansas.
Kansas and Colorado both agreed to let the matter rest after the 2009 decision and, ultimately, both states filed an agreement with the Supreme Court that the most recent ruling would be the final as a formal monitoring system had been ordered by the court and was put in place to mitigate future apportionment issues. By the end of the ordeal, both states were out more than $50 million collectively in fees and damages and had argued somewhat consistently with each other in the federal court system for 107 years.
– Jess Brovsky-Eaker