18
Opinion of the Court
use and increased crop yields. With figures drawn from a number of studies, Professor Norman Whittlesey, Kansas' principal expert,7 developed quantitative estimates of the lost yield, per unit of water, for the various crops grown on the affected farmland. Although Colorado's expert initially attempted to propose his own model, he ultimately abandoned his position when confronted with flaws in his data. 197 Tr. 44-46.
Its own expert having recanted his alternative proposal for calculating the effects of the diverted water on crop yield, Colorado attempts to poke holes in Kansas' methodology through a speculative application of abstract economic theory. Kansas' numbers (for crop losses due to diverted water) cannot be correct, Colorado argues, because if they were, it would have been economically profitable for the affected farmers to drill wells and obtain water from underground sources rather than suffer the reduced yield from the shortage of surface water. Brief for Colorado 41-49. Because Kansas farmers did not install wells, Colorado concludes, we can know that the diverted water was not as valuable as Kansas' experts claim.
The Special Master did not question Colorado's assertion that digging wells would, in retrospect, actually have been profitable for Kansas farmers, but he declined to employ Colorado's argument as a basis for rejecting Kansas' expert testimony on the extent of crop losses. His thoughtful analysis is worth quoting in full:
"Given the hindsight of present day economists, it might have been profitable for everyone to drill supplemental wells . . . . However, there are many reasons why this may not have been done, and the failure to drill wells does not by itself indicate that Kansas'
7 Professor Whittlesey served for 20 years as a full professor and agricultural economist at Washington State University. His publications, many of which concern the kind of issues presented by this case, fill 14 pages on his curriculum vitae. See Kan. Exh. 891.
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