NON-BINDING ARBITRATION
PURSUANT TO:
FINAL SETTLEMENT STIPULATION
Kansas v. Nebraska and Colorado
No. 126, Original, U.S. Supreme Court
Decree of May 19, 2003, 538 U.S. 720
♦
ARBITRATOR’S PRELIMINARY DECISION ON LEGAL ISSUES
♦
December 19, 2008
1
BACKGROUND
On December 15, 2003, the states of Kansas, Nebraska, and Colorado
(the “States”) executed the
Final Settlement Stipulation (the “FSS”) “… to resolve the currently
pending litigation in the
United States Supreme Court regarding the Republican River Compact
by means of this
Stipulation and the Proposed Consent Judgment … .” FSS, Volume 1 of
5, at 1. The FSS was
filed with the Special Master appointed by the U.S. Supreme Court
(the “Court”) in Kansas v.
Nebraska and Colorado,
No. 126, Original, who recommended entry of the proposed consent
judgment which would approve the FSS. Second Report of the Special
Master (Subject: Final
Settlement Stipulation) at 77. On May 19, 2003, the Court entered a
consent decree approving
the FSS (the “Consent Decree”).
By 2007, disputes arose between the States regarding compliance with
the FSS and the
Republican River Compact. The disputes were submitted to the
Republican River Compact
Administration (the “RRCA”) pursuant to the provision in the FSS for
dispute resolution. See
FSS, Volume 1 of 5, § VII., at 34-40. The RRCA addressed the
disputes, but no resolution of
certain disputes was reached. See Resolution of the RRCA
dated May 16, 2008, Exhibit 1 to
Arbitration Agreement dated October 23, 2008. The RRCA submitted
these disputes to nonbinding
arbitration pursuant to the provisions of § VII. of the FSS, the
States executed the
Arbitration Agreement on October 23, 2008 (the “Arbitration
Agreement”), and I was retained
by the States to serve as the Arbitrator.
Exhibit 2 to the Arbitration Agreement sets forth the “Time Frame
Designation” for the nonbinding
arbitration, Exhibit 3 to the Arbitration Agreement sets forth the
disputed issues
identified by the State of Kansas to be arbitrated, and Exhibit 4 to
the Arbitration Agreement sets
forth the disputed issues identified by the State of Nebraska to be
arbitrated. The disputed issue
originally raised by the State of Colorado with the RRCA, which the
RRCA submitted to nonbinding
arbitration pursuant to the provisions of § VII. of the FSS (See
Attachment 3 to
Resolution of the RRCA dated May 16, 2008), has been withdrawn from
this non-binding
arbitration and is not included in the Arbitration Agreement.
From the issues set forth in Exhibit 2 and Exhibit 3 to the
Arbitration Agreement, the States
identified six legal issues to be decided by the Arbitrator by
December 19, 2008, for the purpose
of narrowing discovery and the hearing on the merits scheduled in
mid-March of 2009. Based
on a disagreement regarding the appropriate scope of the
arbitration, the Arbitrator identified a
seventh issue during a prehearing conference held telephonically on
November 5, 2008. Each of
the States filed opening briefs on these seven legal issues with the
Arbitrator on November 10,
2008. (The State of Colorado briefed 3 arguments pertaining to only
4 of the legal issues.)
Responsive briefs were filed on November 24, 2008, and reply briefs
were filed on December 5,
2008. Oral argument on these legal issues was heard at the
University of Denver, Strum College
of Law, on December 10, 2008.
Each of the States stated the seven legal issues differently, and
the Arbitrator has synthesized the
statements of the States into the following seven questions.
References to the argument or issue
are from the opening briefs of each of the States.
2
Question 1: Are Nebraska’s proposed changes to the Republican River
Compact
Administration Accounting Procedures proper subjects of dispute
resolution and for this arbitration?
(Kansas’ Argument A., Nebraska’s Issue I.A., Colorado’s Argument I.)
Question 2: Is the evaporation from Non-Federal Reservoirs below
Harlan
County Lake required to be included in the Compact accounting?
(Kansas’ Argument B., Nebraska’s Issue I.B.)
Question 3: Do the current Republican River Compact Administration
Accounting Procedures allocate evaporative losses from Harlan
County Lake entirely to Kansas when the Kansas Bostwick Irrigation
District is the only entity actually diverting stored water from
Harlan
County Lake for irrigation? If yes, how should evaporation from
Harlan County Lake be allocated?
(Kansas’ Argument C., Nebraska’s Issue I.C.)
Question 4: If Nebraska has violated the Compact or the consent
decree of May
19, 2003, causing damage to Kansas, is Nebraska subject to remedies
for civil contempt of court, including disgorgement of Nebraska’s
gains as monetary sanctions, or should any damages awarded to
Kansas be limited to actual damages suffered by Kansas?
(Kansas’ Argument D., Nebraska’s Issue III.B., Colorado’s Argument
II.)
Question 5: Is Kansas’ proposed remedy for future compliance with
the
Republican River Compact and the Final Settlement Stipulation a
proper subject for this arbitration, and can the U.S. Supreme Court
formulate and mandate a remedy for future compliance?
(Kansas’ Argument E., Nebraska’s Issue II., Colorado’s Argument
III.)
Question 6: If Nebraska’s alleged violations during both 2005 and
2006 are
substantiated, is Kansas entitled to damages for both 2005 and 2006
or for 2006 only?
(Kansas’ Argument F., Nebraska’s Issue III.A.1.)
Question 7: Is Nebraska’s issue of crediting payments for damages
for violations
from one year in determinations of compliance in subsequent years a
proper subject for this arbitration?
(Kansas’ Argument G., Nebraska’s Issue III.A.2., Colorado’s Argument
I.)
3
PRELIMINARY DECISION
The Arbitrator has treated the briefs filed by the States as being
analogous to cross-motions for
summary judgment under Rule 56 of the Federal Rules of Civil
Procedure. “A party claiming
relief may move, with or without supporting affidavits, for summary
judgment on all or part of
the claim.” Fed. R. Civ. P. 56(a). “The judgment sought should be
rendered if the pleadings, the
discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue
as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R.
Civ. P. 56(c).
The Arbitrator has carefully considered the briefs of counsel for
the States and has determined
that there are no material facts genuinely at issue that would
preclude decision of the seven legal
issues set forth above as a matter of law. Therefore, the Arbitrator
issues this decision on these
seven legal issues, including a summary of his reasons for deciding
each issue. With the States’
consent during oral arguments on December 10, 2008, this decision is
preliminary only in so far
as the Arbitrator’s written analysis of each legal issue has not
been completed. The Arbitrator
will complete his written analyses and issue a final decision on
these seven legal issues as soon
as practicable.
Question 1:
Are Nebraska’s proposed changes to the Republican River Compact
Administration
Accounting Procedures proper subjects of dispute resolution and for
this arbitration?
(Kansas’ Argument A., Nebraska’s Issue I.A., Colorado’s Argument I.)
Decision: Nebraska’s proposed changes to the Republican River
Compact Administration
Accounting Procedures are proper subjects of dispute resolution and
for this arbitration. If any
changes to the Accounting Procedures are determined to be warranted,
the appropriate effective
date for such changes will be determined following a hearing of the
facts. Finding for Nebraska
and Colorado; finding against Kansas.
Summary of Reasoning. The “equitable division” or “allocation” of
the waters of the Republican
River Basin between the States is set forth in Article IV of the
Compact, subject to the
proportionate adjustment required in Article III. This equitable
division or allocation is the
paramount reason for the Compact and cannot be enforced without
accurate accounting of how
the waters are actually distributed between the States. Significant
flaws in accounting will result
in significant differences between the enforceable allocations
established in the Compact and the
actual distributions of the waters between the States. Correcting
errors in the Accounting
Procedures used by the RRCA will help assure that the States
actually receive the waters to
which they are entitled pursuant to the Compact. Correcting such
errors will not change the
allocations set forth in the Compact, which cannot be changed unless
the Compact is amended.
Since the Court has jurisdiction to enforce the distribution of
waters pursuant to the Compact, it
must also have jurisdiction to require application of accurate
accounting procedures used to
determine whether the distribution of the waters as required by the
Compact has in fact occurred.
4
The Compact contains no explicit accounting procedures, but the FSS,
which must be construed
such that it is entirely consistent with the Compact, does provide
detailed accounting procedures
to be used by the RRCA (the “RRCA Accounting Procedures”). The FSS
provides that: “The
RRCA may modify the RRCA Accounting Procedures, or any portion
thereof, in any manner
consistent with the Compact and this Stipulation.” See FSS, §
I.F. See also RRCA Accounting
Procedures and Reporting Requirements, § I. The FSS also sets forth
a process for dispute
resolution in a separate section. See FSS, § VII. This
section of the FSS clearly states that the
dispute resolution process applies to “Any matter relating to
Republican River Compact
administration, including administration and enforcement of the
Stipulation in which a State has
an Actual Interest … .” See FSS, § VII.A., ¶ 1. and ¶ 7. The
scope of “Any matter relating to
Republican River Compact Administration …” is broad and includes
accounting procedures used
to determine compliance with the Compact, unless such procedures are
specifically excluded.
The specific provisions for dispute resolution in the FSS do not
exclude the RRCA Accounting
Procedures. Similarly, the provisions in the FSS affirming that the
RRCA may modify the
RRCA Accounting Procedures do not specifically exclude disputes
involving those procedures
from the provisions in the FSS for dispute resolution.
Because the FSS specifies how the RRCA is to determine compliance
with the Compact, the FSS
must also be construed as rules and regulations of the RRCA,
pursuant to Article IX of the
Compact, unanimously adopted by the official in each State charged
with the duty of
administering the Compact, which duty is exclusively reserved to
those officials in Article IX.
Through § VII. of the FSS, the rules and regulations of the RRCA
include provision for dispute
resolution involving “Any matter relating to Republican River
Compact administration,
including administration and enforcement of the Stipulation in which
a State has an Actual
Interest” (FSS, § VII.A., ¶ 1.) and “any dispute submitted to the
RRCA pursuant to this Section
VII.” FSS, § VII.A., ¶ 7.
Question 2:
Is the evaporation from Non-Federal Reservoirs below Harlan County
Lake required to be
included in the Compact accounting?
(Kansas’ Argument B., Nebraska’s Issue I.B.)
Decision: The evaporation from Non-Federal Reservoirs below Harlan
County Lake is required
to be included in the Compact accounting. Finding for Kansas;
finding against Nebraska.
Summary of Reasoning. In § VI.A., the FSS affirmatively provides
that: “For purposes of
Compact accounting the States will calculate the evaporation from
Non-Federal Reservoirs
located in an area that contributes run-off to the Republican River
above Harlan County Lake, in
accordance with the methodology set forth in the RRCA Accounting
Procedures.” The provision
is silent about how or whether evaporation from Non-Federal
Reservoirs below Harlan County
Lake is required to be included in the Compact accounting. Nebraska
asserts that this provision
should be read that because it includes evaporation from Non-Federal
Reservoirs above Harlan
5
County Lake, it implies exclusion of evaporation from Non-Federal
Reservoirs below Harlan
County Lake. However, the FSS must be read such that it is entirely
consistent with the
Compact. To be entirely consistent with Article II of the Compact,
which defines “Beneficial
Consumptive Use” as including “water consumed by evaporation from
any reservoir” [emphasis
added],
§ VI.A. of the FSS can not mean that evaporation from Non-Federal
Reservoirs below
Harlan County Lake is to be excluded in Compact accounting. Rather,
§ VI.A. of the FSS
simply does not provide a specific requirement as to how
evaporation from Non-Federal
Reservoirs below Harlan County Lake is to be included in the Compact
accounting [emphasis
added].
Regarding the exclusion of reservoirs having a storage capacity of
less than 15 acre-feet,
this can only be consistent with Article II of the Compact because
the evaporation from such
small reservoirs is de minimus.
Question 3:
Do the current Republican River Compact Administration Accounting
Procedures allocate
evaporative losses from Harlan County Lake entirely to Kansas when
the Kansas Bostwick
Irrigation District is the only entity actually diverting stored
water from Harlan County
Lake for irrigation? If yes, how should evaporation from Harlan
County Lake be
allocated?
(Kansas’ Argument C., Nebraska’s Issue I.C.)
Decision: The current Republican River Compact Administration
Accounting Procedures
allocate evaporative losses from Harlan County Lake entirely to
Kansas when the Kansas
Bostwick Irrigation District is the only entity actually diverting
stored water from Harlan County
Lake for irrigation. However, the Accounting Procedures should be
modified so that evaporation
from Harlan County Lake is allocated between Kansas and Nebraska in
proportion to each state’s
use of water from Harlan County Lake for all purposes. Finding in
part for Nebraska and in part
for Kansas; finding in part against Kansas and in part against
Nebraska.
Summary of Reasoning. In § IV.A.2.e)(1) of the RRCA Accounting
Procedures, evaporation
from Harlan County Lake is expressly “charged to Kansas and Nebraska
in proportion to the
annual diversions made by the Kansas Bostwick Irrigation District
and the Nebraska Bostwick
Irrigation District” except “For any year in which no irrigation
releases were made from Harlan
County Lake … .” The States could have chosen language that would
have expressly
apportioned the evaporation losses from Harlan County Lake between
Nebraska and Kansas
according to the use of water from Harlan County Lake by each state,
whatever those uses might
lawfully be, but they did not. Assuming Kansas’ assertion of the
underlying intent to be true,
that the States would share the consumptive beneficial use
associated with evaporation from
Harlan County Lake on the basis of the relative amount of their
uses, that intent cannot be used
to ignore the plain meaning of the specific language actually
adopted by the States. There is no
ambiguity in the language of this provision, and its plain meaning
must be applied until such
time as this provision of the RRCA Accounting Procedures is
modified, as it should be, as
provided for in the FSS.
6
There is no dispute that Nebraska paid the Nebraska Bostwick
Irrigation District to forgo its use
of water from Harlan County Lake in 2006 and that the District did
not use water from Harlan
County Lake in 2006. By its own admission, Nebraska undertook this
action in an effort to
comply with the Compact. That is, so that Nebraska could continue
beneficial consumptive uses
that otherwise may have been subject to curtailment to comply with
the Compact. Forgoing
direct use of water from Harlan County Lake so that other uses of
water in the Republican River
Basin in Nebraska could continue is still a use of water in
Nebraska. An apportionment of the
evaporation from Harlan County Lake for such uses would be equitable
and consistent with
Article II and Article XI(a) of the Compact, which impliedly
apportions evaporation based on
where the associated beneficial use occurs not where the evaporation
occurs, and the RRCA
Accounting Procedures should be amended to provide this equity and
consistency with the
Compact when water is used for purposes other than irrigation.
Question 4:
If Nebraska has violated the Compact or the consent decree of May
19, 2003, causing
damage to Kansas, is Nebraska subject to remedies for civil contempt
of court, including
disgorgement of Nebraska’s gains as monetary sanctions, or should
any damages awarded
to Kansas be limited to actual damages suffered by Kansas?
(Kansas’ Argument D., Nebraska’s Issue III.B., Colorado’s Argument
II.)
Decision: Under the facts alleged by Kansas, the FSS, as a part of
the consent decree of May 19,
2003, is properly enforced as a contract, like the Compact itself.
Any damages awarded to
Kansas are properly limited to the actual damages suffered by
Kansas, and evidence pertaining to
Nebraska’s gains for its alleged overuse of water will not be
considered. Finding for Nebraska
and Colorado; finding against Kansas.
Summary of Reasoning. The FSS was approved by the Court in the
Consent Decree and thus
must be construed as part of the Consent Decree. But the FSS is
first and foremost an agreement
amongst the States, sovereigns who each agreed to “resolve
litigation in the United States
Supreme Court regarding the Republican River Compact by means of
this Stipulation and the
Proposed Consent Judgment … .” FSS, § I.A. Because the FSS specifies
how the RRCA is to
determine compliance with the Compact, the FSS must also be
construed as rules and regulations
of the RRCA, pursuant to Article IX of the Compact, unanimously
adopted by the official in
each State charged with the duty of administering the Compact, which
duty is exclusively
reserved to those officials in Article IX. While the Court clearly
has broad power to find
contempt and to impose sanctions to remedy violations of its orders
and decrees as asserted by
Kansas, the Court also has the correlative power to limit or decline
to impose contempt
sanctions. Given the unique attributes of the FSS (i.e., consent
decree, contract between the
States, and rules and regulations of the RRCA) and given the purpose
of the States in entering
into the FSS (i.e., to resolve litigation regarding breach of the
Republican River Compact, which
itself is to be enforced as a contract between the States), the
Arbitrator determines that the FSS as
part of the Consent Decree should be enforced as a contract between
the States, and any damages
awarded to Kansas should be limited to the actual damages suffered
by Kansas.
7
Limiting any damages awarded to Kansas to the actual damages
suffered by Kansas is also
consistent with the only provision in the FSS itself that provides a
remedy for Nebraska’s
violation of § V.B.2.a. of the FSS, as alleged by Kansas. This
remedy, which is set forth in
§ V.B.2.f. of the FSS, limits Nebraska’s compensation (in water) to
Kansas in the first year after
Water-Short Year Administration is no longer in effect, for
Nebraska’s exceedance of its annual
allocation above Guide Rock in the previous year, to a maximum
amount equal to Nebraska’s
exceedance in the previous year*;
i.e., Kansas’ actual loss.
Question 5:
Is Kansas’s proposed remedy for future compliance with the
Republican River Compact
and the Final Settlement Stipulation a proper subject for this
arbitration, and can the U.S.
Supreme Court formulate and mandate a remedy for future compliance?
(Kansas’ Argument E., Nebraska’s Issue II., Colorado’s Argument
III.)
Decision: Kansas’ proposed remedy for future compliance with the
Republican River Compact
and the Final Settlement Stipulation is a proper subject for this
arbitration; however, Kansas can
not mandate its proposed remedy. Any alternative remedy to that
proposed by Kansas can also
be considered during this arbitration, and the U.S. Supreme Court
can formulate and mandate a
remedy for future compliance, as it determines to be necessary.
Finding for Kansas and finding
in part for Nebraska and Colorado; finding in part against Nebraska.
Summary of Reasoning. The FSS sets forth a specific process for
dispute resolution. See FSS, §
VII. The FSS clearly states that the dispute resolution process
applies to “Any matter relating to
Republican River Compact administration, including administration
and enforcement of the
Stipulation in which a State has an Actual Interest … .” See
FSS, § VII.A., ¶ 1. and ¶ 7. The
remedy proposed by Kansas for future compliance with the Compact and
the FSS is a proper
subject for this arbitration provided it was first submitted to the
RRCA (FSS, § VII.A., ¶ 1.), the
RRCA was unable reach unanimous agreement or resolution (FSS, §
VII.A., ¶ 7.), and Kansas
desires to proceed with resolution by submitting to non-binding
arbitration, unless otherwise
agreed to by all States with an Actual Interest (Id.). As
documented in the May 16, 2008,
Resolution of the RRCA (Exhibit 1 to the Arbitration Agreement),
Kansas has followed all three
procedural steps.
Kansas presented its proposed remedy for future compliance with the
Compact and the FSS in its
letter to Nebraska dated December 19, 2007. The mere act of
presenting a proposed remedy for
Nebraska’s consideration did not impose the remedy, nor could Kansas
impose any remedy on a
coequal sovereign. However, once the facts are heard at hearing
regarding Nebraska’s alleged
violations of the Compact and the FSS, and both Kansas’ and
Nebraska’s proposed plans for
future compliance are presented and considered, it is appropriate
for the Arbitrator to recommend
*
“Nebraska must either make up the entire amount of the previous
year’s Computed Beneficial Use in excess of its
Allocation, or the amount of the deficit needed to provide a
projected supply in Harlan County Lake of at least
130,000 Acre-feet, whichever is less.” FSS, § V.B.2.f.
8
actions that may be necessary for future compliance. If this matter
is eventually submitted to the
Court, the Court certainly can impose equitable relief in the form
of an injunction or in other
form as determined to be necessary to enforce future compliance with
the Compact and the FSS.
However, in enforcing the FSS, the Court should not impose any
greater burdens that what the
States have consented to in the FSS.
Question 6:
If Nebraska’s alleged violations during both 2005 and 2006 are
substantiated, is Kansas
entitled to damages for both 2005 and 2006 or for 2006 only?
(Kansas’ Argument F., Nebraska’s Issue III.A.1.)
Decision: If Nebraska’s alleged violations during both 2005 and 2006
are substantiated, Kansas
is entitled to damages for both 2005 and 2006, but not based on the
methodology set forth by
Kansas, i.e., not two times the average of the shortages from 2005
and from 2006. Nebraska’s
compliance with the Compact in 2005 will be determined based on the
evidence presented at
hearing. Finding in part for Kansas and in part for Nebraska;
finding in part against Nebraska
and in part against Kansas.
Summary of Reasoning. By the plain wording of the FSS, the States
waived “all claims against
each other relating to the use of the waters of the [Republican
River] Basin pursuant to the
Compact with respect to activities or conditions occurring before
December 15, 2002,” (FSS, §
I.C.) but not “[w]ith respect to activities or conditions occurring
after December 15, 2002 … .”
FSS, § I.D. Further, the “States agree[d] that this Stipulation and
the Proposed Consent
Judgment are not intended to, nor could they, change the States’
respective rights and obligations
under the Compact.” Id. The States also agreed “to implement
the obligations and agreements
in this Stipulation in accordance with the schedule attached hereto
as Appendix B.” FSS, § I.B.
Appendix B of the FSS unambiguously sets the “First year Water-Short
Year Administration
compliance” as 2006, not 2005. The FSS also prescribes that “any
Water-Short Year
Administration year [is] treated as the second year of the two-year
running average and using the
prior year as the first year.” FSS, § V.B.2.e.i. The common meaning
of a two-year running
average is the average value for a parameter calculated by adding
the value for that parameter in
a given year to the value for that same parameter from the preceding
year and dividing the sum
by two. The calculations shown in Table 5C of the RRCA Accounting
Procedures for
determining Nebraska’s compliance during Water-Short Year
Administration are wholly
consistent with this meaning. Therefore, since Appendix B of the FSS
sets 2006 as the first year
for Water-Short Year Administration compliance, the only purpose for
the 2005 calculations of
Nebraska’s Computed Beneficial Consumptive Use above Guide Rock,
Nebraska’s Allocation
from sources above Guide Rock, Nebraska’s share of any unused
portion of Colorado’s
Allocation, and credits for imported water, pursuant to § V.B.2.a.
of the FSS and Table 5C of the
RRCA Accounting Procedures, is for calculation of the corresponding
two-year running averages
for 2006. Nebraska’s compliance with § V.B.2.a. of the FSS in 2005
would require calculation
of two-year running averages using parameter values from 2004 and
2005, but is not relevant
9
since the FSS plainly established 2006 as the first year for
Water-Short Year Administration
compliance.
While compliance with § V.B.2.a. of the FSS in 2005 is not required
by the implementation
schedule set forth in Appendix B to the FSS, this does not relieve
Nebraska from any actual
damages to Kansas resulting from noncompliance with the Compact in
2005.
Question 7:
Is Nebraska’s issue of crediting payments for damages for violations
from one year in
determinations of compliance in subsequent years a proper subject
for this arbitration?
(Kansas’ Argument G., Nebraska’s Issue III.A.2., Colorado’s Argument
I.)
Decision: Nebraska’s issue of crediting payments for damages for
violations from one year in
determinations of compliance in subsequent years is not a proper
subject for this arbitration at
this time, since the issue has not been directly and fully submitted
together with supporting
materials to the RRCA. However, this issue can be addressed at
hearing and in post-hearing
briefs to the extent it must be addressed in considering Kansas’
proposed remedy, or other
alternative remedies or plans that may be considered at hearing, for
future compliance with the
Compact and the Final Settlement Stipulation. Alternatively, since
this issue was identified in
Exhibit 4 to the Arbitration Agreement, once directly and fully
submitted with supporting
materials to the RRCA and if the RRCA is unable to resolve this
issue, it would then be a proper
subject as an issue in this arbitration. Finding in part for Kansas,
Nebraska, and Colorado;
finding in part against Kansas, Nebraska, and Colorado.
Summary of Reasoning. In Nebraska’s Opening Brief Re: Issue
III.A.2., illustrative information
is presented (See Table 1 in Nebraska’s Opening Brief) to
show “the importance of providing
Nebraska with a credit for damages paid for violations in 2006 (a
WSY Administration year).”
Nebraska’s Opening Brief at 8-9. While this information is helpful
to the Arbitrator for context,
there is no indication in the Arbitration Agreement or the States’
opening, responsive, or reply
briefs that demonstrates Nebraska’s Issue III.A.2. was previously
and specifically defined for the
RRCA, that the type of supporting information presented in Table 1
of Nebraska’s Opening Brief
regarding this issue was supplied to the RRCA, or that Nebraska
designated a schedule for the
RRCA to attempt resolution of this issue, as expressly required by §
VII.A.6. of the FSS.
Nebraska’s Issue III.A.2. may very well need to be addressed in a
limited manner while
considering the formulation of any plan for ongoing compliance with
the Compact and the FSS
that is determined to be necessary, and to the limited extent
required to address other issues that
have been properly submitted to but unresolved by the RRCA. To the
limited extent necessary
to address issues specifically set forth in the May 16, 2008,
Resolution of the RRCA (Exhibit 1
to the Arbitration Agreement), Nebraska’s Issue III.A.1. can be
considered in this arbitration.
While the Arbitrator agrees with the principal of judicial economy
in addressing related issues in
a broader context, that principal cannot defeat the specific
requirements of the FSS set forth in §§
VII.A.1. & 6. Therefore, if Nebraska desires to have its Issue
III.A.2. fully addressed in this arbitration, Nebraska must first
directly submit this issue to the RRCA as a separate issue with a
specific definition, supporting materials, and a schedule for
resolution.
Dated: December 19,
2008
Karl J. Dreher
Arbitrator
