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Suthers to argue before high court

$9 million riding on 23-year-old water lawsuit

By Ed Sealover, Rocky Mountain News

Published November 27, 2008 at 12:05 a.m.

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State Attorney General John Suthers will make his first arguments before the United States Supreme Court on Monday, and $9 million of taxpayer money will be riding on the outcome.

Suthers, attorney general since 2005, will represent the state in the final phase of Kansas' 23-year-old lawsuit against Colorado regarding use of Arkansas River water. Colorado already has paid $34 million to its eastern neighbor for permitting wells that pumped too much water out of the river, but Kansas claims it is owed more to cover the amount it spent bringing the legal action.

Essentially, Kansas wants $10 million for its cost of expert witnesses, even though the court awarded it only about $1 million. Federal law caps expert witness fees at $40 per day, but Kansas is arguing that the law does not apply to interstate disputes that went directly to the Supreme Court.

A decision against Colorado would require the legislature to come up with $9 million from a budget already stretched thin by the economic downturn.

The Colorado Springs resident is more than just a bit excited.

After a career that included stints as 4th Judicial District Attorney and U.S. Attorney, Suthers will be offering arguments for the first time in the building where most attorneys dream of giving their side of a case. The court hears about 20 cases a year involving states, and Gail Norton was the last Colorado attorney general to appear in its chambers, Suthers said.

Suthers' wife and one of his daughters, who is a lawyer herself, will be flying out to watch him. He will have 30 minutes to make Colorado's case, knowing most of that time will be used answering questions from the nine Supreme Court justices.

Despite the excitement, Suthers insisted he will be grounded by the burden he has to win this case.

He said, "$9 million is $9 million, and we don't want to lose that for the state."