U.S. Supreme Court sides with Colorado in legal fees dispute

Chris Rizo Mar. 9, 2009, 11:55am

U.S. Supreme Court building

John Suthers (R-Colo.)

Steve Six (D-Kan.)

WASHINGTON (Legal Newsline)-The U.S. Supreme Court on Monday sided with Colorado in a dispute over expert witness fees related to a long-running water dispute.

Appearing before the high court in November, Colorado Attorney General John Suthers argued that his state should not have to pay $9 million in expert witness fess that Kansas says Colorado taxpayers ought to pay since it was the prevailing party in a protracted water rights case.

"The Supreme Court's decision today marks a bright note for Colorado in this long-running water dispute," Suthers said on a statement. "We are glad to see the Supreme Court sided with our position on the matter of expert witness fees and, as a result, saved Colorado taxpayers more than $9 million."

When Suthers and Kansas Attorney General Steve Six appeared last year before the U.S. Supreme Court it was 23 years after the original lawsuit was filed over flows in the Arkansas River.

For his part, Six urged the justices to overturn earlier rulings limiting how much Colorado has to pay Kansas for breaking their water agreement, which was signed in 1949.

In 2003, Colorado paid Kansas $34.6 million in damages and interest after it was determined that it violated its water compact with Kansas by taking more water than it was allowed from 1950 to 1996.

Kansas said it is owed about $10 million, arguing the federal cap on expert witnesses of $40 per day does not apply to cases that go directly to the U.S. Supreme Court since the case arrived before the justices without going through lower courts.

Kansas, among other things, was seeking reimbursement of costs for developing computer modeling used to make its case.

"We see no good reason why the rule regarding 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," Associate Justice Samuel Alito wrote for the high court. "Many cases brought in a district court are not less complex than those brought originally in this court."

Arthur Littleworth, a water expert in the Riverside, Calif.-based law firm of Best Best & Krieger LLP, served as the Supreme Court's special master in the case since 1987. He had a stroke earlier this year.

From Legal Newsline: Reach staff reporter Chris Rizo at chrisrizo@legalnewsline.com.

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