From The Yuma Pioneer (Tony Rayl):
Among [arbitrator Martha Pagel’s] findings was one in regards to Colorado’s motion to have Kansas’ issue pertaining to overuse of the South Fork of the Republican River be dismissed. Pagel denied the motion, keeping the South Fork issue in the arbitration. Kansas has not requested arbitration on the issue, but it is one of the reason’s the state is withholding its approval for the pipeline. Kansas asserts putting water in the North Fork does not make up for the shortage on the South Fork. Pagel ruled that, whether hypothetical or real, “the question of whether overuse in one sub-basin may be addressed by replacing flow in another sub-basin is relevant to a factual determination of what the CCP (Compact Compliance Pipeline) includes.
Colorado did have another motion granted. It is in regards requesting that portions of a statement made by Kansas Chief Engineer David Barfield regarding the pipeline issue be stricken. Colorado argued that Barfield was making future interpretations of the requirements. Pagel noted that the testimony would not make or break the case. However, she ruled that a plain reading of the statement “reveals a conclusion of law regarding the interpretation, of certain sections in the final stipulation settlement. Therefore, she ruled to strike the statement.
Included with the pipeline in the arbitration is a question on crediting brought forth by Nebraska. Kansas filed a motion to entirely strike the issue from the arbitration hearing, but Pagel ruled against the motion. Nebraska is trying to get determined that if a state pays monetary damages for being out of compliance, what year or years in the five-year rolling average would get credited to zero.
And, of course, Kansas had filed a motion that the whole compact compliance pipeline issues should be dismissed in its entirety. Pagel denied the motion. Kansas had argued that the U.S. Supreme Court lacks the jurisdiction to approve the pipeline plan, nor does an arbitractor, because the Republican River Compact Administration (RRCA) did not grant approval. The state argued that since the RRCA declined to approve the plan, as expressly stated in the final settlement as necessary, then it cannot move on to the arbitrator or the Supreme Court. Extensively quoting case law, particularly Texas v. New Mexico, Pagel ruled the issue can move forward. She suggested that, if the states do not want the final settlement to be so broadly construed, they might want to consider modifying the final settlement to narrow the scope of issues subject to arbitration…
The actual arbitration trial is set for July 12-14 in Kansas City, Kansas.