OCTOBER TERM, 1992
Syllabus
NEBRASKA
v. WYOMING ET AL.
ON EXCEPTIONS TO REPORTS OF SPECIAL MASTER No. 108, Orig. Argued
January 13, 1993-Decided April 20, 1993
To resolve a dispute among Nebraska, Wyoming, Colorado, and the
United States over water rights to the North Platte River, this
Court entered a decree in 1945 imposing restrictions on storage and
diversion by the upstream States, Colorado and Wyoming;
establishing priorities among federal reservoirs and certain
Nebraska canals; and apportioning 75% of the natural flow of the
river's so-called "pivotal reach" during the irrigation season to
Nebraska and 25% to Wyoming.
Nebraska v.
Wyoming,
325 U. S. 589.
Initiating this original action in 1986, Nebraska petitioned the
Court for an enforcement order and injunctive relief under the
decree's "reopener" provision, alleging that Wyoming was violating
or threatening to violate the decree by virtue of developments on
two North Platte tributaries, Deer Creek and the Laramie River, and
objecting to certain of Wyoming's actions with respect to the
Inland Lakes in Nebraska. Wyoming answered and counterclaimed,
arguing, essentially, that Nebraska was circumventing the decree by
demanding and diverting water from above the Tri-State Dam for uses
below Tri-State that are not recognized in the decree. All four
parties have moved for summary judgment on one or more issues, and
the Special Master has filed his First and Second Interim Reports
recommending disposition of those motions and the intervention
motions of certain
amici. Exceptions have been filed by,
inter alios, the three States.
Held:
1. No exceptions having been filed to the Master's
recommendation that the Court deny the intervention motions, that
recommendation is adopted. Pp. 589-590.
2. The Master's recommended dispositions of the summary judgment
motions are adopted, and the parties' exceptions are overruled. Pp.
590-603.
(a) Although not strictly applicable, Federal Rule of Civil
Procedure 56(c) and this Court's precedents construing it serve as
useful guides to the summary judgment principles governing the
case. Such judgment is appropriate under the Rule's terms when
there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. In determining whether a
material factual dispute exists, the evidence is viewed through the
prism of the controlling legal
585
standard, which will be markedly different depending on the type
of proceedings. To the extent that the proceedings involve an
application for
enforcement of rights already recognized in
a decree, as is the case here with respect to the Inland Lakes
question, the plaintiff need not show injury. See,
e. g.,
Wyoming v.
Colorado, 309 U. S. 572, 581.
However, if the plaintiff seeks
modification of the decree
to cover questions not decided in the original proceedings, as is
the case with regard to Nebraska's tributary development claims, a
showing of substantial injury must be made to warrant relief. Cf.,
e. g., Idaho ex rel. Evans v.
Oregon, 462 U. S. 1017, 1027.
Pp. 590-593.
(b) Summary judgment is granted to Nebraska and the United
States on their requests for determinations that the decree
entitles the Federal Bureau of Reclamation to continue its
longstanding diversion and storage practices with respect to the
Inland Lakes, and that the lakes have the same December 6, 1904,
priority date as other original components of the Bureau's North
Platte Project. The Court implicitly settled the lakes' priority in
the prior litigation. See,
e. g., 325 U. S., at 646, 649,
and n. 2. And even if the issue was not previously determined,
Wyoming's arguments are foreclosed by its postdecree acquiescence
in the Bureau's administration of the lakes. Cf.
Ohio v.
Kentucky, 410 U. S. 641, 648. Thus, Wyoming's motion for
partial summary judgment that the Inland Lakes do not have storage
rights under either state law or the decree is denied. Pp.
593-595.
(c) Wyoming's and Nebraska's motions for summary judgment with
respect to their rights to Laramie River waters are denied. The
Court rejects Wyoming's contention that those waters were
completely apportioned between itself and Colorado by this Court's
1922 Laramie River decree.
Wyoming v.
Colorado,
259 U. S. 419,
496. Although Paragraph XII(d) of the 1945 decree expressly left
undisturbed "[t]he apportionment heretofore made," the 1922 decree
did not apportion
all the Laramie's waters; it dealt only
with flows down to and including a facility upstream of the new
Laramie developments that Nebraska's petition challenges. Also
rejected is Nebraska's claim that the 1945 decree's apportionment
of pivotal reach waters includes Laramie flows that historically
reached the North Platte. That decree did not restrict Wyoming's
use of the Laramie or require it regularly to deliver a specified
amount of Laramie water to the North Platte confluence, and, since
1945, neither Nebraska nor the United States has requested that
Wyoming account for diversions above the confluence. Because the
1945 decree therefore did not decide the fate of the excess Laramie
waters, affording Nebraska injunctive relief would constitute a
modification of the decree. Unless Nebraska comes forward with
evidence sufficient to establish that some project on the Laramie
poses a threat of injury
586
Syllabus
serious enough to warrant such a modification, summary judgment
should be granted to Wyoming. Pp. 596-598.
(d) Wyoming's motion for summary judgment on Nebraska's
challenge to a proposed new storage reservoir on Deer Creek is
denied. It is unclear whether decree Paragraph X exempts from
further review Wyoming's diversion of North Platte water for
ordinary and usual municipal use. The Court need not adopt a
definitive interpretation of Paragraph X, because the Deer Creek
Project may not qualify as such a use. Furthermore, proof that the
project will cause Nebraska substantial injury-which is necessary
because the decree does not currently restrict Wyoming's use of
Deer Creek, and a new injunction would constitute a modification of
the decree-may depend on the way Wyoming administers the project,
particularly with regard to its priority with the Inland Lakes. Pp.
599-60l.
(e) Although most of Wyoming's, Nebraska's, and Colorado's
requested rulings with respect to the below Tri-State issues are
too theoretical and insufficiently developed to be susceptible of
summary resolution at this time, partial summary judgment is
granted to Nebraska on its request for a determination that the
decree does not impose absolute ceilings on diversions by canals
taking in the pivotal reach. Decree Paragraph V, which sets forth
the apportionment of the pivotal reach, makes no mention of
diversion ceilings and expressly states that Nebraska is free to
allocate its share among its canals as it sees fit. Similarly,
although Paragraph IV limits the extent to which Nebraska canals
diverting in the pivotal reach may stop federal reservoirs in
Wyoming from storing water, it does not place any restrictions on
the quantities of water those canals may actually divert. Pp.
602-603.
Motions for leave to intervene denied, motions for summary
judgment granted in part and denied in part, and exceptions to
Special Master's Interim Reports overruled.
O'CONNOR, J., delivered the opinion for a unanimous Court.
Dennis C.
Cook, Senior Assistant Attorney General,
argued the cause for defendant State of Wyoming. With him on the
briefs were
Joseph B. Meyer, Attorney General, and
Raphael J.
Moses, Charles N.
Woodruff, and
James R. Montgomery, Special Assistant Attorneys General.
Gale A. Norton, Attorney General, argued the cause for
defendant State of Colorado. With her on the brief were
Raymond
T. Slaughter, Chief Deputy Attorney General,
Timothy
587
M. Tymkovich, Solicitor General, and
Wendy C.
Weiss, First Assistant Attorney General.
Richard A. Simms, Special Assistant Attorney General,
argued the cause for plaintiff State of Nebraska. With him on the
briefs were
Don Stenberg, Attorney General,
Marie C.
Pawol, Assistant Attorney General,
James C.
Brockmann, and
Jay F. Stein.
Jeffrey P. Minear argued the cause for the United
States.
With him on the brief were Solicitor General Starr, Acting
Assistant Attorney General O'Meara, Edwin S. Kneedler, Andrew F.
Walch, and Patricia L. Weiss. *
JUSTICE O'CONNOR delivered the opinion of the Court.
In this original action we revisit the dispute among Nebraska,
Wyoming, Colorado, and the United States over water rights to the
North Platte River. In 1945, this Court entered a decree
establishing interstate priorities on the North Platte and
apportioning the natural flow of one critical portion of the river
during the irrigation season. Nebraska returned to the Court in
1986 seeking an order for enforcement of the decree and injunctive
relief. A Special Master, appointed by the Court, has supervised
pretrial proceedings and discovery since 1987. Before us now are
the Special Master's recommended dispositions of several summary
judgment motions, together with exceptions filed to the Special
Master's reports.
I
The North Platte River rises in northern Colorado and flows
through Wyoming into Nebraska, where it joins the South Platte
River. The topology of the river and the history of its early
development are described at length in the Court's 1945 opinion.
See
Nebraska v.
Wyoming, 325 U. S.
*Briefs of
amici curiae were filed for the Basin Electric
Power Cooperative by
Edward Weinberg, Richmond F.
Allan,
Michael J.
Hinman, and
Claire Olson; and for the
National Audubon Society et al. by
Peter A. A. Berle and
Abbe David Lowell.
588
589, 592-599. In 1934, Nebraska, invoking this Court's original
jurisdiction under Article III, § 2, of the Constitution, brought
an action against Wyoming seeking an equitable apportionment of the
North Platte. Colorado was impleaded as a defendant, and the United
States intervened. After 11 years of litigation, the Court imposed
restrictions on storage and diversion by the upstream States, 325
U. S., at 621-625, established priorities among federal storage
reservoirs and certain canals, id., at 625-637, and apportioned the
so-called "pivotal" reach of the North Platte between Whalen,
Wyoming, and the Tri-State Dam. The natural irrigation-season flows
in that section of the river were apportioned 75% to Nebraska and
25% to Wyoming.
Id., at 637-654.
The Court directed the parties to formulate a decree to
implement its decision. See id., at 657. The resulting decree
included a "reopener" provision, Paragraph XIII, that states, in
relevant part:
"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, direction, 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.
Matters with reference to which further relief may hereafter be
sought shall include, but shall not be limited to, the
following:
"(c) The question of the effect of the construction or
threatened construction of storage capacity not now existing on
tributaries entering the North Platte River between Pathfinder
Reservoir and Guernsey Reservoir;
"(f) Any change in conditions making modification of the decree
or the granting of further relief necessary or appropriate."
Id., at 671-672.
589
Paragraph XIII reflects the Court's observation that the decree
is designed to "deal with conditions as they obtain today" and that
it "can be adjusted to meet ... new conditions."
Id., at
620. The Court noted in more than one place in its opinion the need
to retain jurisdiction to modify the decree in light of substantial
changes in supply, threatened future development, or circumvention
of the decree. See,
e. g., id., at 622, 625, 628-629. Since
it was entered, the decree already has been modified once, pursuant
to the parties' stipulation, to account for construction of a new
reservoir. See
Nebraska v.
Wyoming, 345 U. S. 981 (1953).
In 1986, Nebraska petitioned the Court for relief under
Paragraph XIII. Nebraska alleged that Wyoming was violating or
threatening to violate the decree by virtue of developments on two
North Platte tributaries, Deer Creek and the Laramie River.
Nebraska also objected to certain actions taken by Wyoming with
respect to the Inland Lakes in Nebraska. We granted Nebraska leave
to file the petition. Wyoming answered and counterclaimed, arguing,
essentially, that Nebraska was circumventing the decree by
demanding and diverting water from above the Tri-State Dam for uses
below Tri-State that are not recognized in the decree.
After we referred the matter to Special Master Owen Olpin,
Wyoming moved for summary judgment. In his First Interim Report,
the Master explained his decision to deny the motion but leave open
the possibility of summary adjudication following further factual
findings. See First Interim Report (June 14, 1989). An intensive
period of discovery followed. All four parties then moved for
summary judgment on one or more issues. A year later, the Special
Master filed a Second Interim Report. See Second Interim Report on
Motions for Summary Judgment and Renewed Motions for Intervention
(Apr. 9, 1992) (hereinafter Second Interim Report). The Master
recommended that the Court deny the intervention motions of certain
amici. No exceptions have been filed to this recommendation,
and
590
we adopt it. The Master also recommended that the Court grant
summary judgment to Nebraska and the United States on the Inland
Lakes issue, grant partial summary judgment to Nebraska on a
discrete question related to the below TriState issues, and deny
summary judgment on the remaining issues. Exceptions have been
filed by Nebraska, Wyoming, Colorado, and
amicus Basin
Electric Power Cooperative (Basin). The United States has filed a
brief opposing the exceptions. We agree with the Master's
recommended dispositions of the summary judgment motions and
accordingly overrule the exceptions.
II
At the outset we consider the legal principles governing the
case. The parties do not challenge the summary judgment standards
applied by the Special Master. The Master correctly observed that,
although not strictly applicable, Rule 56(c) of the Federal Rules
of Civil Procedure and our precedents construing that Rule serve as
useful guides. See this Court's Rule 17.2. Summary judgment is
appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Fed. Rule
Civ. Proc. 56(c). When the nonmoving party bears the burden of
proof at trial, summary judgment is warranted if the nonmovant
fails to "make a showing sufficient to establish the existence of
an element essential to [its] case."
Celotex Corp. v.
Catrett, 477
U. S. 317, 322 (1986). In determining whether a material
factual dispute exists, the Court views the evidence through the
prism of the controlling legal standard.
Anderson v.
Liberty Lobby, Inc., 477 U. S. 242, 248
(1986).
The disagreement in this case centers on the applicable legal
standards. The question is whether these proceedings involve an
application for
enforcement of rights already recognized in
the decree, or whether Nebraska seeks a
modification of the
decree. According to Wyoming, although the Court has jurisdiction
to modify the decree under Paragraph
591
XIII, Nebraska obtained leave to file its petition on the
assurance that the case would involve only enforcement of existing
rights. In Wyoming's view, Nebraska subsequently, and improperly,
transformed the case into a request for recognition of new
rights-in essence, into a request for another equitable
apportionment. If Nebraska is allowed to argue for modification of
the decree, Wyoming and
amicus Basin maintain, the same high
evidentiary threshold applicable to claims for new apportionments
applies. Under that standard, Nebraska can prevail only upon proof
"by clear and convincing evidence" of "some real and substantial
injury or damage."
Idaho ex rel. Evans v.
Oregon,
462 U. S. 1017,
1027 (1983). Accord,
Colorado v.
Kansas, 320 U. S. 383, 393
(1943); Connecticut v.
Massachusetts, 282 U. S. 660, 669
(1931).
We do not read the pleadings as narrowly as does Wyoming.
Nebraska's petition and supporting briefs do contain ambiguous
language. See,
e. g., Petition for an Order Enforcing Decree
and for Injunctive Relief 2 (Oct. 6, 1986) (hereinafter Petition)
(alleging that Wyoming's actions violate the apportionment already
"established in the Decree"); Reply to Wyoming's Brief in
Opposition to Motion for Leave to File Petition 2 (Jan. 14, 1987)
("We do not propose to litigate anything new, but simply to protect
what the Court has already decided"). But Nebraska also expressly
invoked Paragraph XIII, and particularly subparagraphs (c) and (f).
See Petition 3. As we have said, the Court in those sections
retained jurisdiction to modify the decree to answer unresolved
questions and to accommodate "change[s] in conditions" -a phrase
sufficiently broad to encompass not only changes in water supply,
see,
e. g., Nebraska v.
Wyoming, 325 U. S., at 620,
but also new development that threatens a party's interests.
Furthermore, nothing would prevent Nebraska from submitting a new
petition if we deemed the original one deficient. We therefore
decline the invitation, at this late date, to restrict the scope of
the litigation
592
solely to enforcement of rights determined in the prior
proceedings.
At the same time, we find merit in Wyoming's contention that, to
the extent Nebraska seeks modification of the decree rather than
enforcement, a higher standard of proof applies. The two types of
proceeding are markedly different. In an enforcement action, the
plaintiff need not show injury. See,
e. g., Wyoming v.
Colorado, 309
U. S. 572, 581 (1940). When the alleged conduct is admitted,
the only question is whether that conduct violates a right
established by the decree. To be sure, the right need not be stated
explicitly in the decree. As the Master recognized, when the decree
is silent or unclear, it is appropriate to consider the underlying
opinion, the Master's Report, and the record in the prior
proceedings to determine whether the Court previously resolved the
issue. See,
e. g., Wyoming v.
Colorado, 286 U. S. 494, 506508
(1932). The parties' course of conduct under the decree also may be
relevant. But the underlying issue primarily remains one of
interpretation. In a modification proceeding, by contrast, there is
by definition no pre-existing right to interpret or enforce. At
least where the case concerns the impact of new development, the
inquiry may well entail the same sort of balancing of equities that
occurs in an initial proceeding to establish an equitable
apportionment. See
Nebraska v.
Wyoming, supra, at 618
(listing equitable considerations).
As discussed below, we believe that the Inland Lakes question is
fairly characterized as an enforcement issue. The claims regarding
tributary development, however, raise questions not decided in the
original proceedings and therefore may be best understood as
requests for modification of the decree. The question remains what
evidentiary standard applies to such claims. The Master evidently
thought the high standard advocated by Wyoming inapplicable because
this is not a case in which the Court is asked to inter-
593
fere with state sovereign interests "in the first instance."
Second Interim Report 13.
We disagree with the Master to this extent. Paragraph XIII
perhaps eases a plaintiff's burden of establishing, as an initial
matter, that a claim falling within its purview is "of that
character and dignity which makes the controversy a justiciable one
under our original jurisdiction."
Nebraska v.
Wyoming, 325 U. S., at 610. After all, a variety of changed
conditions may "promis[e] to disturb the delicate balance of the
river" created by the decree.
Id., at 625. But when the
plaintiff essentially seeks a reweighing of equities and an
injunction declaring new rights and responsibilities, we think the
plaintiff still must make a showing of substantial injury to be
entitled to relief. That is so not only because a new injunction
would work a new infringement on sovereign prerogatives, but also
because the interests of certainty and stability counsel strongly
against reopening an apportionment of interstate water rights
absent considerable justification. Cf.
Arizona v.
California, 460 U. S. 605, 615-628
(1983).
III
With these principles in mind, we turn to the summary judgment
motions. To the extent that we agree with the Master, we have found
it unnecessary to repeat in detail his careful evaluation of the
voluminous evidence.
A
The Inland Lakes are four off-channel reservoirs in N ebraska
served by the Interstate Canal, which diverts from the North Platte
at Whalen, Wyoming. Both the Inland Lakes and the Interstate Canal
are part of the North Platte Project, a series of reservoirs and
canals operated by the United States Bureau of Reclamation
(Bureau). Since 1913, the Bureau has diverted water through the
Interstate Canal for storage in the Inland Lakes during
nonirrigation months
594
for release to Nebraska users during the irrigation season. Due
to icing conditions on the Interstate Canal during the winter, the
Bureau also temporarily has stored water destined for the Inland
Lakes in the Guernsey and Glendo Reservoirs.
It appears that the Inland Lakes always have been operated with
the December 6, 1904, priority date that Wyoming recognizes for
other original components of the North Platte Project, even though
the Bureau never obtained a separate Wyoming storage permit for the
Inland Lakes. In 1986, however, Wyoming sued the Bureau in Wyoming
state court, seeking to enjoin the Bureau from storing water in the
Inland Lakes without a state permit and out of priority with other
Wyoming users. (The action was subsequently removed to Federal
District Court and dismissed without prejudice.) As the Master
indicated, there is some reason to think that Wyoming wished to
establish a post-1986 priority date for the Inland Lakes in order
to increase the amount of North Platte water available for the new
project on Deer Creek. At any rate, Nebraska (which was not a party
to the Wyoming lawsuit) challenged Wyoming's actions in its
petition to this Court.
Nebraska and the United States moved for summary judgment,
seeking determinations that the decree entitles the Bureau to
continue its longstanding diversion and storage practices and that
the Inland Lakes have a priority date of December 6, 1904. Wyoming
moved for partial summary judgment that the Inland Lakes do not
have storage rights under either state law or the decree. The
Special Master recommended that we grant the motions of Nebraska
and the United States and deny Wyoming's motion. That the Bureau
lacks a separate Wyoming permit for the Inland Lakes, he reasoned,
is immaterial because the question of the Inland Lakes' priority
was determined in the original proceedings. The decree did not
explicitly establish the Inland Lakes' priority. But it is
undisputed that the Court
595
recognized a right to store 46,000 acre-feet of water in the
Inland Lakes and, at Wyoming's suggestion, counted that amount to
reduce Nebraska's requirement of natural flows in the pivotal
reach. See Report of Michael J. Doherty, Special Master in
Nebraska v.
Wyoming, O. T. 1944, No.4, pp. 60-61
(hereinafter Doherty Report); 325 U. S., at 646, 649, and n. 2. The
Master therefore concluded that the Inland Lakes' priority was a
necessary predicate of the apportionment and should not be
disturbed. He also suggested that Wyoming's postdecree acquiescence
in the Bureau's administration of the Inland Lakes should prevent
Wyoming from challenging the 1904 priority date now.
We think the evidence from the prior litigation supports the
conclusion that the Inland Lakes' priority was settled there. And
even if the issue was not previously determined, we would agree
with the Special Master that Wyoming's arguments are foreclosed by
its postdecree acquiescence. Cf.
Ohio v.
Kentucky,
410 U. S. 641,
648 (1973) ("[P]roceedings under this Court's original jurisdiction
are basically equitable in nature, and a claim not technically
precluded nonetheless may be foreclosed by acquiescence" (citation
omitted)). Accordingly, we clarify today that the Inland Lakes
share a December 6, 1904, priority date with other original
components of the North Platte Project. Pursuant to that priority,
the Bureau has a right to divert 46,000 acre-feet of water during
the nonirrigation season months of October, November, and April for
storage in the Inland Lakes. Although the practice of storing
Inland Lakes water temporarily in the Guernsey and Glendo
Reservoirs was not established in 1945, the United States contends,
and Wyoming apparently does not dispute, that the practice is
necessary to ensure the delivery of the 46,000 acre-feet of water
envisioned in the apportionment. For that reason we hold that the
temporary storage practice also is protected. Our conclusion does
not otherwise affect the rights of the Guernsey and Glendo
Reservoirs under the decree.
596
B
The Laramie River originates in Colorado and meets the North
Platte in Wyoming in the pivotal reach. In its petition, Nebraska
challenged two new developments on the Laramie near the North
Platte confluence. The first, Grayrocks Project, was completed in
1980. Operated by
amicus Basin, it consists of Grayrocks
Reservoir and an electric power generating plant. The second, Corn
Creek Project, is a proposed irrigation system for Wyoming
farmland.
Wyoming and Nebraska both moved for summary judgment, taking
diametrically opposed positions with respect to their rights to
Laramie waters. Nebraska claimed that the equitable apportionment
of the water in the pivotal reach includes Laramie flows that
historically have reached the North Platte. Wyoming contended that
the waters of the Laramie are completely apportioned between
Colorado and Wyoming by virtue of this Court's 1922 Laramie River
decree,
Wyoming v.
Colorado, 259 U. S. 419, 496,
modified,
260 U. S.
1, vacated and new decree entered,
353 U. S. 953 (1957),
which the North Platte decree expressly left undisturbed.
Paragraph XII(d) of the North Platte decree does state that the
decree "shall not affect ... [t]he apportionment heretofore made by
this Court between the States of Wyoming and Colorado of the waters
of the Laramie River." 325 U. S., at 671; see also id., at 592, n.
1 (Laramie decree "in no way affected" by North Platte decree). But
we think the Master correctly concluded that Wyoming was not
granted the right entirely to dewater the Laramie. The 1922 Laramie
decree to which Paragraph XII(d) refers did not apportion
all the waters of the Laramie; it dealt only with flows down
to and including the Wheatland Project, a facility upstream of
Grayrocks and Corn Creek. See
Wyoming v.
Colorado,
259 U. S., at 488.
There is a statement arguably to the contrary in a subsequent
decision interpreting the 1922 decree. See
Wyoming v.
Colorado, 298
U. S. 573, 578 (1936) (decree establishes
597
Wyoming's right "to receive and divert ... the remaining waters
of the stream and its tributaries"). But we read that language to
refer only to the waters actually apportioned in the earlier
proceedings-that is, the waters down to and including Wheatland.
There is also contrary language in the new Laramie decree entered
on the joint motion of Wyoming and Colorado in 1957. See
Wyoming v.
Colorado, 353 U. S., at 953 (Wyoming
"shall have the right to divert and use all water flowing and
remaining in the Laramie river and its tributaries"). But the 1957
decree, entered without Nebraska's participation, cannot affect our
interpretation of the 1945 North Platte decree, since Paragraph
XII(d) addresses only the Laramie apportionment "heretofore made"
-in other words, the 1922 decree.
Further, the Court apparently expected that some Laramie water
would contribute to the natural flows available for apportionment
in the pivotal reach. See,
e. g., Doherty Report 67, Table
III (including Laramie inflows in calculation of natural flow in
pivotal reach). But the Court did not affirmatively apportion
Laramie flows to Nebraska, either. The decree did not restrict
Wyoming's use of the Laramie or require Wyoming regularly to
deliver a specified amount of Laramie water to the North Platte
confluence. Since 1945, Laramie flows that actually have reached
the North Platte have been included in the equitable apportionment,
but neither Nebraska nor the United States has requested that
Wyoming account for diversions above the confluence. For these and
other reasons given by the Special Master, we agree that the
evidence, most fairly read, indicates that the Court did not decide
the fate of the excess Laramie waters in 1945.
Because the North Platte decree gives Nebraska no rights to
Laramie waters, affording Nebraska injunctive relief would
constitute a modification of the decree. We turn, then, to the
question of injury. In 1978, Nebraska entered into a settlement
agreement with Basin and other parties
598
(but not Wyoming) that limits Grayrocks' consumption of water
and requires Basin to release certain minimum flows. The agreement
also provides for further depletions in the event that Corn Creek
is constructed. See Wyoming's App. to Brief in Opposition A-24 to
A-32. At this juncture, Nebraska's argument seems to be that it
will be injured if Wyoming interferes with Basin's mandatory
minimum releases by allowing new Wyoming appropriators to divert
from the Laramie between Grayrocks and the North Platte
confluence.
Although Wyoming has declined to assure the Special Master that
it will support Basin's obligation to maintain the minimum flows,
see Second Interim Report 66-68, it is undisputed that Wyoming is
not currently interfering with those flows. Other than Corn Creek,
Nebraska points to no proposed development that might deplete
releases from Grayrocks. Nor does Nebraska seem to argue that
Grayrocks otherwise threatens its interests. The Master recommends
that Paragraph XIII of the decree be amended expressly to indicate
that Nebraska or the United States may apply for relief if Wyoming,
in the future, threatens to interfere with the releases provided
for in the settlement agreement. Because we do not believe such an
amendment would add to our authority under subparagraph (f), we do
not adopt this proposal. The Master also proposes to hold a status
conference concerning Corn Creek. We have no objection to such a
conference. We emphasize, however, that unless Nebraska comes
forward with evidence sufficient to establish that Corn Creek (or
some other project on the Laramie) poses a threat of injury serious
enough to warrant modification of the decree, summary judgment
should be entered in favor of Wyoming. We express no view as to
whether, upon a proper showing of injury, incorporation of the
settlement agreement into the North Platte decree would be
appropriate.
599
C
Deer Creek enters the mainstem of the North Platte in Wyoming
between the Pathfinder and Guernsey Reservoirs, upstream of the
pivotal reach. Nebraska's petition challenged Wyoming's proposed
construction of a new storage reservoir on Deer Creek. As we have
said, in Paragraph XIII(c) of the decree the Court expressly
retained jurisdiction to consider requests for further relief with
respect to the effect of threatened construction of new storage
capacity on tributaries entering the North Platte between
Pathfinder and Guernsey. See 325 U. S., at 671.
Wyoming moved for summary judgment on alternative grounds. It
asserted that the primary function of the Deer Creek Project will
be to furnish municipal water supplies (by exchange) to Wyoming
communities. Accordingly, Wyoming claimed that, Paragraph XIII(c)
notwithstanding, the project is exempt from challenge by virtue of
Paragraph X of the decree, which provides:
"This decree shall not affect or restrict the use or diversion
of water from the North Platte River and its tributaries in
Colorado or Wyoming for ordinary and usual domestic, municipal and
stock watering purposes and consumption." Id., at 670.
Wyoming also contended that Nebraska had failed to make an
adequate showing of injury.
Although admitting that Paragraph X "poses some mysteries,"
Second Interim Report 79, the Special Master evidently agreed with
Wyoming that the plain language of that provision permits Wyoming
freely to divert North Platte water for ordinary and usual
municipal uses and that the other provisions of the decree act only
upon the water remaining after such diversions. The Master declined
to recommend summary judgment on this ground, however, due to
factual questions concerning the Deer Creek Project's municipal
character. The Master also recommended against
600
summary judgment on the injury issue, based on an affidavit by
H. Lee Becker, former state hydrologist for Nebraska. See Affidavit
of H. Lee Becker , 2 (Apr. 25, 1991) (stating that the project
would cause reductions in the average yearend carryover storage of
federal reservoirs on the North Platte and that "[s]uch reductions
... could limit diversions in the [pivotal] reach in a series of
dry years"), attached to Nebraska's Response to Wyoming's and
Colorado's Motions for Summary Judgment and to Basin Electric's
Memorandum in Support Thereof (Apr. 25, 1991).
Nebraska objects strenuously to the Master's interpretation of
Paragraph X. The United States has not filed exceptions but agrees
that the Master's interpretation is "problematic." Brief for United
States Opposing Exceptions 35 (Aug. 17, 1992) (hereinafter U. S.
Brief). We, too, are troubled by Paragraph X. As the Master pointed
out, the parties to the original proceedings fought mightily over
small quantities of water. It is therefore unclear why they and the
Court would have meant that the upstream States could make
municipal diversions of any magnitude, in derogation of the careful
system of interstate priorities established under the decree,
without the opportunity for further review.
We nonetheless think it unnecessary to settle upon a definitive
interpretation of Paragraph X at this time. The Special Master
rightly observed that the Deer Creek Project may not qualify as an
ordinary and usual municipal use. Although Wyoming recently has
promised to operate the project solely for municipal purposes, both
the Final Environmental Impact Statement prepared for the
project-which describes a plan of operation that the project may be
obliged to follow-and the state permit identify nonmunicipal uses.
Nebraska also has presented evidence that the communities that the
Deer Creek Project is to serve do not need additional municipal
supplies, and that, even if they did, there are more cost-effective
alternatives than the proposed reservoir.
601
In addition, Nebraska may be unable to prove that operation of
the Deer Creek Project will cause it substantial injury. Such proof
is necessary, as we have indicated, because the decree does not
currently restrict Wyoming's use of Deer Creek, and a new
injunction would constitute a modification of the decree. Whether
the project will injure Nebraska may depend on the way it is
administered.
Wyoming has conceded that the Deer Creek Project will be
operated in accordance with state law and in priority with the
Glendo and Guernsey Reservoirs. It has not agreed, however, to
operate the project junior to the Inland Lakes, perhaps because its
position throughout the litigation has been that the Inland Lakes
lack a priority date. In light of our recognition today that the
decree establishes a 1904 priority date for the Inland Lakes, it is
unclear whether Wyoming will persist in seeking to operate the Deer
Creek Project out of priority. If the project is operated junior to
the Inland Lakes, the evidence of injury to Nebraska appears to be
diminished. See Affidavit of H. Lee Becker "4-6 (Aug. 12, 1988)
(demonstrating that anticipated reductions in federal reservoirs'
carryover storage would be smaller if Inland Lakes' priority were
recognized), attached to N ebraska's Response to Wyoming's Motion
for Summary Judgment (Aug. 22, 1988); Affidavit of David G. Wilde ,
89(b) (Aug. 15, 1988) (stating that, although Deer Creek would
"substantially impac[t]" federal projects during an extended dry
period, impacts would be "minimized" if Deer Creek were
administered junior to the Inland Lakes), attached to Response of
United States to Wyoming's Motion for Summary Judgment (Aug. 23,
1988). But Wyoming still may assert that Paragraph X permits it to
divert for municipal uses out of priority with the Inland Lakes. In
that event, we think the Wilde and Becker affidavits raise a
genuine issue of material fact sufficient to defeat Wyoming's
summary judgment motion.
602
D
In its counterclaim, Wyoming alleged that Nebraska was violating
the decree by demanding natural flows and storage water from
sources above the Tri-State Dam and diverting those waters to uses
below Tri-State that are not recognized in the decree. Wyoming also
alleged that Nebraska was improperly demanding North Platte flows
for diversion by canals at and above Tri-State Dam in excess of the
irrigation requirements of the Nebraska lands entitled to water
under the decree. Increased diversions by the Nebraska canals above
Tri-State evidently benefit users below Tri-State because they
create increased return flows.
Neither Wyoming nor Nebraska sought summary judgment on
Wyoming's counterclaim. Rather, both States and Colorado have
sought a number of more limited rulings with respect to the below
Tri-State issues. We agree with the Master that most of these
claims are "'too theoretical and not sufficiently anchored to
concrete pleadings or an adequately developed factual [r]ecord'" to
be susceptible of summary resolution at this time. Second Interim
Report 92 (quoting Post-Argument Comments of United States 6 (July
29, 1991)). We further agree that one issue is sufficiently
crystallized to warrant partial summary judgment for Nebraska.
Nebraska requested a determination that the decree does not
impose absolute ceilings on diversions by canals taking in the
pivotal reach. As the Master explained, the irrigation requirements
of the lands the canals serve were calculated in the prior
proceedings. But the requirements were calculated for the purpose
of determining the appropriate apportionment of the pivotal reach,
not to impose a cap on the canals' total diversions, either
individually or cumulatively. See Doherty Report 161 ("[T]he
findings herein as to
requirements cannot, I think, be
deemed a limitation upon individual canals or groups, in actual
administration, either as to natural flow or storage water, nor do
I think any such limita-
603
tions can properly be imposed by the decree" (emphasis in
original)). Paragraph V of the decree, which sets forth the
apportionment, makes no mention of diversion ceilings and expressly
states that Nebraska is free to allocate its share among its canals
as it sees fit. See 325 U. S., at 667.
In Wyoming's view, Paragraph IV of the decree requires a
different result. The Master properly rejected this argument.
Paragraph IV establishes the priority of Nebraska canals diverting
in the pivotal reach relative to federal projects in Wyoming. See
id., at 666-667. We agree with the United States that, although
Paragraph IV "limits the extent to which the Nebraska canals may
stop federal reservoirs from storing water, [it] does not place any
'absolute ceilings' or other restrictions on the quantities of
water those canals may actually divert." U. S. Brief 40, n. 21.
Wyoming asks us to clarify that the federal reservoirs have no
obligation to bypass natural flow to a senior Nebraska canal when
the canal is making excessive calls for federal storage water.
Because there is as yet inadequate factual development on the
question whether Nebraska canals have in fact made excessive calls,
we decline to do so.
IV
For the foregoing reasons, all of the exceptions filed to the
Special Master's reports are overruled. The summary judgment
motions of Nebraska and the United States regarding the Inland
Lakes' priority date are granted, as is Nebraska's partial summary
judgment motion with respect to the issue of canal diversion
limitations. All other summary judgment motions are denied.
It is so ordered.
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