U.S. Supreme Court Sides With Colorado In Dispute With Kansas Over $9 Million In Expert Witness Fees

DENVER – The U.S. Supreme Court issued an opinion today unanimously endorsing Colorado’s position in a decades-old water dispute that Kansas can only be reimbursed $40 per day as compensation for expert witnesses utilized in presenting its case.

“The Supreme Court’s decision today marks a bright note for Colorado in this long-running water dispute,” Attorney General John Suthers said. “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.”

Kansas disputed whether cases the U.S. Supreme Court hears under the original jurisdiction clause of the U.S. Constitution are subject to the same limit of $40 per day fee for expert witnesses as cases brought at the District Court level. The court declined to directly address the matter but did agree that the fee cap imposed in district-level cases is “appropriate” for cases that originate before the court.

“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,” Justice Samuel Alito wrote in the court’s decision. “Many cases brought in a district court are not less complex than those brought originally in this court.”

Attorney General Suthers argued before the court on behalf of Colorado in early December.

The court’s decision closes yet another chapter in the water dispute, which started in 1985 when Kansas sued Colorado, alleging, among other things, that irrigation wells sunk in Colorado were drawing off water in violation of the Arkansas River Compact. Following hearings by a court-appointed special master, the Supreme Court agreed in 1995 that Colorado had violated the water compact.

The dispute over expert witness fees began in 2004 after Kansas disputed the special master’s finding that a $40 per day expert witness fee was appropriate.

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