Limiting Liability for Long - Continued Breach of Interstate Water Allocation Compacts
Posted: 12 Oct 2004
Recent Supreme Court decisions in Texas v. New Mexico and Kansas v. Colorado, involving assessment of damages for long-term breaches of interstate water compacts, have raised the specter of huge liability for breaching states. Thus far the Supreme Court has not dealt with the possibility that time may bar some claims of long-continued breach. The ancient principle of nullum tempus - no time runs against the sovereign - might enable a sovereign plaintiff state to recover damages no matter how old. The nullum tempus principle should not apply in water compact enforcement suits, however, because it would produce little or no public benefit in that situation and because its application would violate the constitutional plan of equal footing for litigating states. With the removal of the principle of nullum tempus, the defenses of either laches or a borrowed statute of limitations may reduce a defendant state's liability for breach of an interstate water compact.
Suggested Citation: Suggested Citation