Union Pacific Railroad Company,
a Utah corporation
Energy Transportation Systems, CV-77-L-167
Inc., a Delaware corporation and
Board of Educational Lands and
Funds of the State of Nebraska
V. Jnion Pacific Railroad Company,
a Utah corporation
79-1259
Energy Transportation Systems, CV-77-L-165
Inc., a Delaware corporation v.
Burlington Northern, Inc., a
Delaware corporation
Energy Transportation Systems, CV-77-L-166
Inc., a Delaware corporation v.
Burlington Northern, Inc., a
Delaware corporation
Energy Transportation Systems, 77-C-lO
Inc., a Delaware corporation v.
Burlington Northern, Inc., a
Delaware corporation
Court
United States District
Court for the District
of Wyoming
United States District
Court for the District
of Wyoming
United States District
Court for the District
of Wyoming
United States District
Court for the District
of Nebraska
District Court of
Morrill County, Nebraska
United States District
Court for the District
of Nebraska
United States Court of
Appeals, 8th Circuit
United States District
Court for the District
of Nebraska
United States District
Court for the District
of Nebraska
17th Judicial District
Court, Rawlins County,
Kansas, Civil Department
Energy Transportation Systems,
Inc. , a Delaware corporation v.
Burlington Northern, Inc., a
Delaware corporation
Energy Transportation Systems,
Inc., a Delaware corporation v.
Union Pacific Railroad Company,
a Utah corporation
Energy Transportation Systems,
Inc. , a Delaware corporation v.
Union Pacific Railroad Company,
a Utah corporation
Energy Transportation Systems,
Inc., a Delaware corporation v.
Union Pacific Railroad Company,
a Utah corporation
Energy Transportation Systems,
Inc., a Delaware corporation v.
Union Pacific Railroad Company,
a Uwah corporation
Energy Transportation Systems,
Inc., a Delaware corportation v.
Union Pacific Railroad Company,
a Utah corporation, et al.
Energy Transportation Systems,,
Inc., a Delaware corporation v.
Union Pacific Railroad Company,
a Utah corporation
317
79-C-9 17th Judicial District
Court, Decatur County,
Kansas, Civil Department
77-C-13 15th Judicial District
Court, Sheridan County,
Kansas, Civil Department
79-C-lO 15th Judicial District
Court, Graham County,
Kansas, Civil Department
77-C-6 23rd Judicial District
Court, Trego County,
Kansas, Civil Department
77-4116 United States District
Court for the District
of Kansas
78-1630 10th Circuit Court of
Appeals
79-C-ll State District Court of
Trego County, Kansas
79-4079 United States District
Court, Kansas
5509 15th Judicial District
Court, Thomas County,
Kansas, Civil Department
77-C-16 District Court, Gove
County , Kansas
77-4151 United States District
Court for the District
Kansas
78-1681
10th United States
318
Energy Transportation Systems, 77-C-17
Inc. , a Delaware corporation v.
Missouri Pacific Railroad Company,
a Missouri corporation
Energy Transportation Systems, 77-C-18
Inc., a Delaware corporation v.
Atchison, TopeJca and Santa Fe
Railway Company, a Delaware
corporation
Energy Transportation Systems,
Inc., a Delaware corporation v.
Atchison, Topeka and Santa Fe
Railway Company, a Delaware
corporation
Energy Transportation Systems,
Inc., a Delaware corporation v.
Atchison, Topeka and Santa Fe
Railway Company, a Delaware
corporation
Energy Transportation Systems,
Inc., a Delaware corporation v.
Atcnison, Topeka and Santa Fe
Railway Company, a Delaware
corporation
Energy Transportation Systems,
Inc., a Delaware corporation v.
Atchison, Topeka and Santa Fe
Railway Company, a Delaware
corporation
Energy Transportation Systems,
Inc., a Delaware corporation v.
Atchison, Topeka and Santa Fe
Railway Company, a Delaware
corporation
Energy Transportation Systems, 77-C-122
Inc., a Delaware corporation v.
Missouri Pacific Railroad Company,
a Missouri corporation
77-C-254
77-C-105
77-C-104
77-C-48
77-C-1096
Circuit Court of Appeals
24th Judicial District
Court, Rush County,
Kansas, Civil Department
24th Judicial District
Court, Rush County,
Kansas, Civil Department
20th Judicial District
Court, Barton County,
Kansas, Civil Department
27th Judicial District
Court, Reno County,
Kansas, Civil Department
27th Judicial District
Court, Reno County,
Kansas, Civil Department
19th Judicial District
Court, Kingman County,
Kansas, Civil Department
18th Judicial District
Court, Sedgwick County,
Kansas, Civil Department
19th Judicial District
Court, Sumner County,
Kansas, Civil Department
319
Energy Transportation Systems, 77-C-123
Inc., a Delaware corporation v.
Missouri Pacific Railroad Company,
a Missouri corporation
19th Judicial District
Court, Sumner County,
Kansas, Civil Department
Energy Transportation Systems, 25196
Inc., a Delaware corporation v.
Atchison, Topeka and Santa Fe
Railway Company, a Delaware
corporation
Energy Transportation Systems, 78-C-226
Inc., a Delaware corporation v.
Atchison, Topeka and Santa Fe
Railway Company, a Delaware
corporation
Energy Transportation Systems, 77-C-124
Inc., a Delaware corporation v.
Atchison, Topeka and Santa Fe
Railway Company, a Delaware
corporation
Energy Transportation Systems, 78-C-1753
Inc., a Delaware Corporation v.
Missouri Pacific Railroad Company,
a Missouri corporation
Energy Transportation Systems, C-37229
Inc., a Delaware corporation v.
Missouri Pacific Railroad Comany,
a Missouri corporation, et al.
Energy Transportation Systems, C-37228
Inc., a Delaware corporation v.
St. Louis-San Francisco Railway
Company, a Missouri corporation,
et al.
Energy Transportation Systems, 77-C-250
Inc., a Delaware corporation v.
Atchison, Topeka and Santa Fe
Railway Company, a Delaware
corporation
Energy Transportation Systems, 77-C-251
Inc., a Delaware corporation v.
Missouri Pacific Railroad Company,
a Missouri corporation
19th Judicial District
Court, Sumner County,
Kansas, Civil Department
19th Judicial District
Court, Sumner County,
Kansas, Civil Department
19th Judicial District
Court, Sumner County,
Kansas, Civil Department
18th Judicial District
Court, Sedgewick County,
Kansas, Civil Department
District Court of
Sedgewick County, Kansas
18th Judicial District
Court, Sedgewick County,
Kansas, Civil Department
9th Judicial District
Court, Harvey County,
Kansas, Civil Department
9th Judicial District
Court, Harvey County,
Kansas, Civil Department
320
Energy Transportation Systems,
Inc., a Delaware corporation v.
Atchison, Topeka and Santa Fe
Railway Company, a Delaware
corporation
77-C-51 8th Judicial District
Court, Marion County,
Kansas, Civil Department
Energy Transportation Systems, 77-C-37
Inc., a Delaware corporation v.
Missouri Pacific Railroad Company,
a Missouri corporation
Energy Transportation Systems,
Inc., a Delaware corporation v.
Atchison, Topeka and Santa Fe
Railway Company
Energy Transportation Systems,
Inc. V. St. Louis - San
Francisco Railway Company,
a corporation
77-C-38
C-77-83-PC
C-77-517-E
Energy Transportation Systems, C-77-84-PC
Inc. V. Atchison, Topeka and
Santa Fe Railway Company,
a corporation
Energy Transportation Systems, c-77-65
Inc. V. Atchison, Topeka and
Santa Fe Railway Company, a
corporation
Energy Transportation Systems, C-77-193
Inc. V. Atchison, Topeka and
Santa Fe Railway Company
Energy Transportation Systems, c-77-154
Inc. V. Missouri Pacific Company,
a foreign corporation
Energy Transportation Systems, C-77-230
Inc. V. Atchison, Topeka and
Santa Fe Railway Company
Energy Transportation Systems, C-77-135
Inc. V. Missouri Pacific
Railroad Company, a foreign
corporation
8th Judicial District
Court, Morris County,
Kansas, Civil Department
8th Judicial District
Court, Morris County,
Kansas, Civil Department
District Court of Kay
County, Oklahoma
United States District
Court for the Western
District of Oklahoma
District Court of Kay
County, Oklahoma
District Court of Noble
County, Oklahoma
District Court of Osage
County, Oklahoma
District Court of Osage
County, Oklahoma
District Court of
Washington County,
Oklahoma
District Court of
Wagoner County, Oklahoma
321
Energy Transportation Systems, C-77-464
Inc. V. St. Louis - San
Francisco Railway Company,
a corporation
Energy Transportation Systems, C-77-53
Inc. V. Missouri Pacific Railroad
Company, a corporation
Energy Transportation Systems, C-77-318
Inc. V. Kansas City Southern
Railway Company, and Fort Smith
and Van Buren Railway Company,
a corporation
52,680
District Court of
Muskogee County, Oklahoma
District Court of
Haskell County, Oklahoma
District Court of
eFlore County, Oklahoma
Supreme Court of
Oklahoma
Energy Transportation Systems,
Inc. V. Kansas City Southern
Railway Company, a corporation
C-77-319
52-680
District Court of
LeFlore County, Oklahoma
Supreme Court of
Oklahoma
Energy Transportation Systems, C-77-235
Inc. V. St. Louis - San
Francisco Railway Company,
a corporation
Energy Transportation Systems, C-77-423
Inc. V. St. Louis - San
Francisco Railway Company,
a corporation
Energy Transportation Systems, C-77-422
Inc. V. Missouri Pacific
Railroad Company, a corporation
Energy Transportation Systems, C-77-427
Inc. V. St. Louis - San
Francisco Railway Company,
a corporation
Energy Transportation Systems, E-76-370
Inc. V. Missouri Pacific
Railroad Company
Energy Transportation Systems, E-76-646
Inc. V. Missouri Pacific
Railroad Company
Energy Transportation Systems, E-76-106
Inc. V. Missouri Pacific
District Court of
LeFlore County, Oklahoma
District Court of Rogers
County, Oklahoma
District Court of Rogers
County, Oklahoam
District Court of Rogers
County, Oklahoma
Chancery Court of Saline
County, Arkansas
Chancery Court of
Jefferson County,
Arkansas
Chancery Court of Drew
County, Arkansas
322
Railroad Company
Energy Transportation Systems,
Inc. V. Missouri Pacific
Railroad Company
76-24 3 Chancery Court of Ashley
County, Arkansas
Energy Transportation Systems,
Inc. V. Missouri Pacific
Railroad Company
Energy Transportation Systems,
Inc. V. Missouri Pacific
Railroad Company
761-151 United States District
Court for the Western
District of Louisiana,
Monroe Division
E-76-646 Parish of West Carroll,
Louisiana, 5th District
Court
761-150 United States District
Court
323
ATTACHMENT B
EOD
MAY 8 1981
IN THE UNITED STATES DISTRICT c6tJRT- ' â– -â– >',-
FOR THE EASTERN DISTRICT OF TE<^g ■;''^_ ' ' •"'•
BEAUMONT DIVISION v. i... T/S , .", "T :0'JRT
"89 Fiii-r 5 '"T 10 06
ETSI PIPELINE PROJECT, A S
JOINT VENTURE and ENERGY S
TRANSPORTATION SYSTEMS, INC., S
s
Plaintiffs, S
S
HOUSTON LIGHTING & POWER S
COMPANY, UTILITY FUELS, §
INC., LOWER COLORADO RIVER §
AUTHORITY and THE CITY §
OF AUSTIN, S
S
Plain tiff 3- Inter v«nors,S
S
vs. S CIVIL ACTION NO. B-84-979-CA
s
BURLINGTON NORTHERN, INC., $
ZT AL. , S
s
Defendants. S
FINAL JUDGMENT
On March 3, 1989, this Court granted the Plaintiffs' Motion
for Partial Instructed Verdict on the fallowing issues:
1) That there was an agreement or conspiracy to
delay, hinder, or stop the ETSI Pipeline Project among
the following railroads: Burlington-Northern, Chicago
and Northwestern, Kansas City Southern, Missouri-
Kansas-Texas (KATY), Missouri Pacific, St. Louis and
San Francisco ("Frisco"), Santa Fe, Union Pacific.
2) That Santa Fe knowingly took part in the agreement
or conspiracy.
3) That the conspiracy constituted an unreasonable
restraint of trade.
324
4) That the restraint of trade affected interstate
commerce.
On March 10, 1989, the jury returned its verdict finding the
following:
(I.) That any one or more members of the conspiracy took
actions in furtherance of the conspiracy after November 11, 1931,
that were a material cause of injury to ETSI's business or
property.
(II.) That the sum of money, paid now in cash, that woald
compensate ETSI for any injury it suffered as a material result
of the actions found in response to Interrogatory I is
$345,000,000.00.
(III.) That no member or metisbers of the conspiracy took
actions in furtherance of the conspiracy after July 31, 1982,
that were a material cause of injury to HLSP's business or
property.
Based on the foregoing, this Court holds that Santa Fe
violated Section 1 of the Sherman Act, 15 U.S.C. 1. Under
Section 4 of the Clayton Act, 15 U.S.C. 15(a), ETSI is entitled
to recover threefold the damages it sustained or
$1,035,000,000.00.
ETSI has received $284,900,000.00 from previous settlements
with other Defendants as follows:
325
Union Pacific 5 34,900,000.00
Chicago and Northwestern 15,000,000.00
Burlington Northern 175,000,000.00
Kansas city Southern 60,000,000.00
Total Received in Settlements $ 284.900.000.00
This Court, therefore , ORDERS the following:
1) The amount received by ETSI in settlemanta
($284,900,000.00) shall be deducted from the $1,035,000,000.00
judgment against Santa Fe.
2) Plaintiff ETSI Pipeline Project, A Joint Venture, shall
recover $750,100,000.00 from Defendants Santa Fe Southern Pacific
Corporation and Atchison, Topeka & Santa Fe Railway Company.
3) Plaintiff ETSI Pipeline Project, A Joint Venture, shall
recover interest on the $750,100,000.00 amount from Defendants
Santa Fe Southern Pacific Corporation and Atchison, TopeJca &
Santa Fe Railway Company. This interest shall run from the entry
of judgment and shall accrue at the rate provided by law.
4) Plaintiff ETSI Pipeline Project, A Joint Venture, shall
recover from Defendants Santa Fe Southern pacific Corporation and
Atchison, Topeka & Santa Fe Railway Company cost of suit,
including reasonable attorneys' fees.
5) Houston Lighting and Power Company and Utility Fuels,
Inc. ("HLSP Plaintiffs") shall take nothing in this suit.
The Court ENTERS Judgment in favor of ETSI Pipeline Project,
A Joint Venture, against Santa Fe Southern Pacific Corporation
and Atchison, Topeka & Santa Fe Railway Company in tfie amount of
326
$750,100,000.00, with interest as provided by law and with cost
of court.
The Court ENTERS Judgment in favor of Santa Fe Southern
Pacific Corporation and Atchison, Topeka & Santa Fe Railway
Company against Houston Lighting and Power Company and Utility
Fuels, Inc.
SIGNED th
is *^ day of May, 1989.
M. PARKER
UNITED STATES DISTRICT JUDGE
327
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STATEMENT OF
EDWARD W. CLYDE
ATTORNEY AT LAW
BEFORE THE
SENATE ENERGY AND NATURAL RESOURCES COMMITTEE
ON S.801
COAL DISTRIBUTION AND UTILIZATION ACT OF 1987
ON
SEPTEMBER 10, 1987
329
BEFORE THE SENATE COMMITTEE ON ENERGY
AND NATURAL RESOURCES
HEARINGS ON S. 801
STATEMENT OF EDWARD W. CLYDE, ATTORNEY
My name is Edward W. Clyde. I live at 1329 Blaine Avenue,
Salt Lake City, Utah.
I am an attorney engaged in private law practice for
approximately 45 years. In the 1940s I served as an Asst.
Attorney General, representing the Utah State Water Engineer and
other State Natural Resource Departments. I then taught Water
and Mining Law at the University of Utah Law School for several
years on a part time basis, I have throughout ray years of
private law practice specialized in the field of western water
law. My practice has extended into several Western states,
including Utah, Montana, Wyoming, Idaho, South Dakota, Nevada,
Colorado and New Mexico. I will let that suffice as a statement
of my experience and refer you to the resume attached to this
statement.
I testified before this Committee in 1982 on S. 1844 and
again in 1983 on S. 267. At the time of my testimony on these
two prior occasions I was legal consultant to Energy Transporta-
tion Systems Inc. (ETSI) , in regard to its acquisition of water
for a proposed coal slurry pipeline project. I also was the lead
attorney for ETSI in negotiating a water contract with the State
of South Dakota for that line. However, my appearance here is at
the invitation of the Committee staff and I do not presently
330
represent anyone who is proposing to construct a coal slurry
pipeline.
I have examined S. 801 and am of the opinion that it
expressly and adequately preserves the traditional relationship
between the western states and the United States of America in
regard to the appropriation, use and administration of water. In
my opinion it is important for the Congress to express its intent
in regard to water — as this proposed legislation does - rather
than to remain silent and leave the intent of the Congress to be
inferred by the courts. I am not critical of the Reserved Rights
doctrine, which has been developed by the courts. Under this
doctrine the courts have held that when the United States
withdraws lands for particular federal purposes, it is to be
inferred that Congress also intended to withdraw some undefined
quantity of water, so that the withdrawn lands can be used for
the intended purpose. I think it is much better for the Congress
to express its intent, rather than to leave it for the courts to
infer. For example, I seriously doubt that in 1928 any sponsor
of the Boulder Canyon Project Act (Act of Dec. 21, 1918, ch. 42,
45 Stat. 1066) thought he was asking the Congress to apportion
the waters of the lower Colorado River among Arizona, Nevada and
California. Yet in 1973 a divided U. S. Supreme Court held that
this is what Congress had done. Where the Congress elects to
remain silent and to leave the problem to the courts, it creates
uncertainty. The problem of quantifying the amount of water
reserved is left for future court decision. This often results
in protracted litigation. The amount of water reserved for
331
Indian tribes under a doctrine pronounced by the U. S. Supreme
Court as early as 1907 is still largely unresolved. A new area
for litigation is reflected by the court's holding in Sierra Club
V. Block , 622 F. Supp. 842 (D.C. Col. 1985). There the U. S.
District Court of Colorado inferred that the Congress intended to
withdraw an unspecified amount of water in connection with the
creation of wilderness areas and it appears that the water
reserved for each wilderness area will have to be litigated.
S. 801 addresses the impact of this legislation on water and
water rights in several sections. These are noted in Appendix A
hereto.
It is my opinion that the language of the Act is completely
adequate to express the congressional intent to preserve for the
States their historic and traditional role in the allocation and
administration of water rights. There is no reason to assume
that the courts will do otherwise than uphold and apply this
clearly expressed intent. Congress expressed a similar intent in
Section 8 of the National Reclamation Act of 1902, (Act of June
17, 1902, ch. 1093, §8, 32 Stat. 388). There the Secretary of
Interior is directed to secure water for Bureau of Reclamation
projects under State law. In a relatively recent case,
California v. United States , 438 U.S. 645 (1978), the court
elaborately discussed the history of Western water law and
specifically enforced Section 8 as written.
A similar result was reached in Imperial Irr. Co. v. Yellen ,
447 U.S. 352 (1980). There the court was construing analogous
language (Sec. 6) in the Boulder CanyoR Project Act and its
332
holding again strongly suggests that it will uphold the mandate
of Congress to protect the application of State water law to
Federal projects where the Congress so specifies. There Sec. 6
required the Secretary to recognize "present perfected rights".
A "perfected right" had been defined in Arizona v. California ,
373 U.S. 546 (1963) as:
.a water right acquired in accordance with state
law, which right has been exercised by the diversion of a
specific quantity of water that has been applied to a
defined area of land or to a definite municipal or indus-
trial work.
The decision in the Imperial case was unanimous. It held
that section 6 required the Secretary to deliver water to lands
covered by such state-derived water rights, irrespective of their
acreage, and thus exempted such lands from the acreage re-
strictions in the federal reclamation laws, which direct the
Secretary not to deliver water to lands in excess of 160 acres
per owner. The Court noted:
In the first place, it bears emphasizing that the §6
perfected water right is a water right originating under
state law. In Arizona v. California, we held that the
Project Act vested in the Secretary the power to contract
for project water deliveries independent of the direction of
§8 of the Reclamation Act to proceed in accordance with
state law and of the admonition of §18 of the Project Act
not to interfere with state law. 373 U.S. at 586-588, 10
L.Ed. 2d 542, 83 S.Ct. 1468. We nevertheless clearly
recognized that §6 of the Project Act, requiring satisfac-
tion of present perfected rights, was an unavoidable limita-
tion on the Secretary's power and that in providing for
these rights the Secretary must take account of state law.
In this respect, state law was not displaced by the Project
Act and must be consulted in determining the content and
characteristics of the water right that was adjudicated to
the District by our decree.
I believe that it is highly desirable to protect the tradi-
tional roles of the State and Federal governments in the
333
appropriation, use and administration of water as those roles
have evolved over the past 121 years. From my 45 years of law
practice in the water law field, it is my observation that the
present relationship is working reasonably well. The law has
gelled to a point where much of the uncertainty as to where
jurisdiction lies has been removed. The individual seeking to
use the water is really not much concerned about whether he has
to comply with a Federal law - such as he does in subscribing
for water from Federal reclamation projects - or whether he has
to comply with State law. What the user needs is reasonable
certainty of expectations. The present accommodation between the
State and Federal governments has gelled to a point where that
certainty can be provided.
The United States acquired most of the Western lands as a
proprietary owner. At that point the United States also had the
legislative powers vested in it by the U. S. Constitution.
Article IV, Sec. 3, clause 2 of the Constitution vests in
Congress the power "to dispose of and make all needful Rules and
Regulations respecting the . . . property belonging to the United
States." This constitutional language was explained and applied
in Alabama v. Texas, et al. , 347 U.S. 272, 273, 98 L.Ed. 689, 74
S. Ct. 481 (1954) reh. den. 347 U.S. 950, 98 L.Ed. 1097, 74 S.
Ct. 674 (1954) as follows:
The motions for leave to file these complaints are
denied. Article IV, §3, CI. 2, United States Constitution.
United States v. Gratiot . 14 Pet. 526, 537, 10 L.Ed. 573:
The power of Congress to dispose of any kind of property
belonging to the United States "is vested in Congress
without limitation." United States v. Midwest Oil Co. , 236
U.S. 459, 474, 35 S.Ct. 309, 313, 59 L.Ed. 673: "For it
must be borne in mind that Congress not only has a
334
legislative power over the public domain, but it also
exercises the powers of the proprietor therein. Congress
'may deal with such lands precisely as an ordinary
individual may deal with farming property. It may sell
or withhold them from
sale.'. . ." United States v. California , 332 U.S. 19, 27,
67 S.Ct. 1658, 1663, 91 L.Ed. 1889: "We have said that the
constitutional power. of Congress [under Article IV, §3, CI.
2] is without limitation."
Congress could have elected to control the use and ultimate
allocation or disposition of Western water as it has elected to
control the leasing and disposal of federal lands and mineral
resources. .However, in the beginning, when the Mormons settled