text:
    NEBRASKA v. WYOMING et al.
    No. 108,
    Orig.
    Decided June 11, 1945,
    April 20, 1993,
    and May 30, 1995
    Decree entered October 8, 1945
    Order modifying and supplementing decree entered June 15, 1953
    Decree entered November 13, 2001
   The Final Report of the Special Master is received and ordered filed.

DECREE

This cause, having come to be heard on the Final Report of the Special Master appointed by the Court, IT IS HEREBY ORDERED THAT:

1. The Final Settlement Stipulation executed by all of the parties to this ease and presented to the Special Master on March 15, 2001, is approved;

2. The proposed Modified Decree submitted as the Appendix to the Final Settlement Stipulation is entered, replacing the decree originally entered in this case on October 8,1945, as modified on June 15, 1953;

3. All claims, counterclaims, and cross-claims brought in this case are hereby dismissed with prejudice; and

4. The parties shall share in the cost of this litigation in the manner that this Court shall order following the entry of the Modified Decree.

APPENDIX

Modified North Platte Decree

[Entered on October 8, 1945, Nebraska v. Wyoming, 325 U. S. 589, 665, modified and supplemented on June 15, 1953, Nebraska v. Wyoming, 345 U. S. 981, and further modified November 13, 2001, Nebraska v. Wyoming, supra, p. 40.]

This Court equitably apportioned the North Platte River among the States of Colorado, Wyoming, and Nebraska in 1945. Nebraska v. Wyoming, 325 U. S. 589, 665 (1945). The Decree was amended pursuant to a stipulation and joint motion of the parties in 1953. Nebraska v. Wyoming, 345 U. S. 981. In 1986, the State of Nebraska filed suit against the State of Wyoming. In 1987, Wyoming filed counterclaims against Nebraska. This Court resolved certain issues on cross-motions for summary judgment in 1993. Nebraska v. Wyoming, 507 U. S. 584. In 1995, this Court granted in part and denied in part Nebraska’s motion to amend its petition, and granted in part and denied in part Wyoming’s motion to amend its counterclaims and to file cross-claims against the United States. Nebraska v. Wyoming, 515 U. S. 1. The parties have agreed upon this Court’s entry of this Modified Decree to a dismissal with prejudice of all claims, counterclaims, and cross-claims for which leave to file was or could have been sought in this case.

The parties to this cause having filed a Final Settlement Stipulation dated March 13, 2001, which includes the parties’ agreement to create the North Platte Decree Committee to assist them in monitoring, administering, and implementing this Modified Decree, and a Joint Motion for Approval of Stipulation, Modification of Decree, and Dismissal with Prejudice, and the Court being fully advised:

IT IS ORDERED:

That the Final Settlement Stipulation dated March 13, 2001, is hereby approved and adopted;

That all claims, counterclaims, and cross-claims for which leave to file was or could have been sought in this case are hereby dismissed with prejudice; and

That the Decree of October 8, 1945, as amended on June 15,1953, is hereby modified as follows:

I. The State of Colorado, its officers, attorneys, agents, and employees, be and they are hereby severally enjoined:

(a) From diverting or permitting the diversion of water from the North Platte River and its tributaries for the irrigation of more than a total of 145,000 acres of land in Jackson County, Colorado, during any one irrigation season;

(b) From storing or permitting the storage of more than a total amount of 17,000 acre-feet of water for irrigation purposes from the North Platte River and its tributaries in Jackson County, Colorado, between October 1 of any year and September 30 of the following year;

(c) From exporting out of the basin of the North Platte River and its tributaries in Jackson County, Colorado, to any other stream basin or basins more than 60,000 acre-feet of water in any period of ten consecutive years reckoned in continuing progressive series beginning with October 1, 1945.

II. The State of Wyoming, its officers, attorneys, agents, and employees, be and they are hereby severally enjoined:

(a) From diverting or permitting the diversion of water for irrigation from the North Platte River and its tributaries, including water from hydrologically connected groundwater wells, upstream of Pathfinder Dam for the consumption in any period of ten consecutive years reckoned in continuing progressive series, of more than the largest amount of water consumed for irrigation from such sources in any ten consecutive year period between 1952 and 1999, inclusive. This injunction becomes effective the first full calendar year after the date of entry of this Modified Decree. The consumptive use of irrigation water in this area to be counted under this injunction shall include the following:

(1) Water consumed for irrigation purposes on lands irrigated with surface water diversions of natural flow;

(2) Water consumed for irrigation purposes on lands irrigated with water stored pursuant to paragraph 11(e);

(3) Water consumed for irrigation purposes on lands irrigated by water from hydrologically connected groundwater wells;

(4) Water consumed for purposes other than irrigation under water rights transferred since October 8, 1945, from an irrigation use to another use;

The largest amount of water consumed for irrigation from such sources in any ten consecutive year period between 1952 and 1999, inclusive, has been determined by the parties pursuant to a methodology and procedures approved and adopted in the Final Settlement Stipulation to be 1,280,000 acre-feet. For the purpose of determining compliance with this injunction, the amount of water consumed for irrigation from such sources shall be determined by the same methodology and procedures. After ten years of administration, accounting, and reporting under this injunction, the methodology and the ten consecutive year limit will be reviewed by the North Platte Decree Committee pursuant to procedures approved and adopted in the Final Settlement Stipulation to determine if there is a better methodology for calculating the largest amount of water consumed for irrigation in such ten consecutive year period and for determining compliance. In making such calculation, any acreage historically reported by the Wyoming State Engineer as irrigated by direct flow surface water or stored water or as transfers, between 1952 and 1999, inclusive, and used in the existing methodology, shall not be changed. In addition, the other acreage used in the existing methodology shall not be changed unless the North Platte Decree Committee agrees that such change results in a more accurate determination of acres actually irrigated between 1952 and 1999, inclusive. In any new methodology, to determine compliance with the consumptive use limit, the acreage above Pathfinder Dam, when combined with the acreage between Pathfinder Dam and Guernsey Reservoir, cannot exceed the 226,000 acreage limitation pursuant to paragraph 11(c). If Nebraska, Wyoming, and the United States agree on a new methodology and a new limit, they shall notify the Court and this paragraph will be modified accordingly. As provided in paragraph XIII, absent agreement on a new methodology and a new limit, Nebraska, Wyoming, or the United States may seek recourse to the Court to resolve these issues.

(b) From diverting or permitting the diversion of water for irrigation from the North Platte River and its tributaries, including water from hydrologically connected groundwater wells, between Pathfinder Dam and Guernsey Reservoir for the consumption in any period of ten consecutive years reckoned in continuing progressive series, exclusive of the Kendrick Project, of more than the largest amount of water consumed for irrigation from such sources in any ten consecutive year period between 1952 and 1999, inclusive. This injunction becomes effective the first full calendar year after the entry of this Modified Decree. The consumptive use of irrigation water in this area to be counted under this injunction shall include the following:

(1) Water consumed for irrigation purposes on lands irrigated with surface water diversions of natural flow;

(2) Water consumed for irrigation purposes on lands irrigated with water stored in reservoirs that store water from the tributaries between Pathfinder Dam and Guernsey Reservoir;

(3) Water consumed for irrigation purposes on lands irrigated by water from hydrologically connected groundwater wells;

(4) Water consumed for purposes other than irrigation with water rights transferred since October 8,1945, from an irrigation use to another use;

The largest amount of water consumed for irrigation from such sources in any ten consecutive year period between 1952 and 1999, inclusive, has been determined by the parties pursuant to a methodology and procedures approved and adopted in the Final Settlement Stipulation to be 890,000 acre-feet. For the purpose of determining compliance with this injunction, the amount of water consumed for irrigation from such sources shall be determined by the same methodology and procedures. After ten years of administration, accounting, and reporting under this injunction, the methodology and the ten consecutivé year limit will be reviewed by the North Platte Decree Committee pursuant to procedures approved and adopted in the Final Settlement Stipulation to determine if there is a better methodology for calculating the largest amount of water consumed for irrigation in such ten consecutive year period and for determining compliance. In making such calculation, any acreage historically reported by the Wyoming State Engineer as irrigated by direct flow surface water or stored water or as transfers, between 1952 and 1999, inclusive, and used in the existing methodology, shall not be changed. In addition, the other acreage used in the existing methodology shall not be changed unless the North Platte Decree Committee agrees that such change results in a more accurate determination of acres actually irrigated between 1952 and 1999, inclusive. In any new methodology, to determine compliance with the consumptive use limit, the acreage above Pathfinder Dam, when combined with the acreage between Pathfinder Dam and Guernsey Reservoir, cannot exceed the 226,000 acreage limitation pursuant to paragraph 11(c). If Nebraska, Wyoming, and the United States agree on a new methodology and a new limit, they shall notify the Court and this paragraph will be modified accordingly. As provided in paragraph XIII, absent agreement on a new methodology and a new limit, Nebraska, Wyoming, or the United States may seek recourse to the'Court to resolve these issues.

(c) From diverting or permitting the diversion of water from the North Platte River and its tributaries, including water from hydrologically connected groundwater wells, upstream of Guernsey Reservoir for the intentional irrigation of more than a total of 226,000 acres of land in Wyoming during any one irrigation season, exclusive of the Kendrick Project. The acres in this area to be counted under this injunction shall include the following, provided that an intentionally irrigated acre that receives water from more than one source shall be counted only once:

(1) Acres irrigated by surface water diversions of natural flow;

(2) Acres irrigated by water stored pursuant to paragraph 11(e);

(3) Acres irrigated by water stored in reservoirs that store water from the tributaries between Pathfinder Dam and Guernsey Reservoir;

(4) Acres irrigated with water from hydrologically connected groundwater wells;

(5) The equivalent of the acres found by order of the Wyoming State Board of Control to have been historically irrigated and that formed the basis for the transfer of water rights where water rights on the North Platte River upstream of Guernsey Reservoir or the tributaries upstream of Pathfinder Dam are transferred after October 8, 1945, from an irrigation use to another use; provided, however, that the amount of acres counted for a given year may be reduced proportionately to the extent that the actual diversion and use of water under the transferred water right during that year are less than the total diversion and use allowed by the order approving such transfer;

(6) The equivalent of the acres found by order of the Wyoming State Board of Control to have been historically irrigated and that formed the basis for the transfer of water rights where water rights on the tributaries entering the North Platte River between Pathfinder Dam and Guernsey Reservoir are transferred after January 1,2001, from an irrigation use to another use; provided, however, that the amount of acres counted for a given year may be reduced proportionately to the extent that the actual diversion and use of water under the transferred water right during that year are less than the total diversion and use allowed by the order approving such transfer;

Ten years after the entry of this Modified Decree, the provision that enjoins Wyoming from intentionally irrigating more than 226,000 acres upstream of Guernsey Reservoir will be replaced with two injunctions, one that limits the number of acres that can be irrigated above Pathfinder Dam and one that limits the number of acres that can be irrigated between Pathfinder Dam and Guernsey Reservoir. Wyoming has the discretion to designate the irrigated acreage limitation above Pathfinder Dam and the irrigated acreage limitation between Pathfinder Dam and Guernsey Reservoir, so long as the total irrigated acreage limitation does not exceed 226,000 acres. After Wyoming makes such designation, Nebraska, Wyoming, and the United States will so notify the Court and the Modified Decree will be modified accordingly.

(d) From diverting or permitting the diversion of water from the Laramie River and its tributaries, including water from hydrologieally connected groundwater wells, downstream of the Wheatland Irrigation District’s Tunnel No. 2, exclusive of the area within the Wheatland Irrigation District, for the intentional irrigation of more than a total of 39,000 acres of land in Wyoming during any one irrigation season. The acres in this area to be counted under this injunction shall include the following, provided that an intentionally irrigated acre that re( eives water from more than one source shall be counted onl y once:

(1) Acres irrigated by surfac 3 water diversions of natural flow;

(2) Acres irrigated by stored irrigation water released from a reservoir;

(3) Acres irrigated with wa ;er from hydrologieally connected groundwater wells;

(4) The equivalent of the acre s found by order of the Wyoming State Board of Control t > have been historically irrigated and that formed the basis for the transfer of water rights where water rights are transferred after January 1, 2001, from an irrigation use that is subject to the limitations of this paragraph 11(d) to another use; provided, however, that the amount of acres counted for a given year may be reduced proportionately to the extent that the actual diversion and use of water under the transferred water right during that year are less than the total diversion and use allowed by the order approving such transfer;

(e) From storing or permitting the storage of more than a total amount of 18,000 acre-feet of water for irrigation purposes from the North Platte River and its tributaries above Pathfinder Reservoir between October 1 of any year and September 30 of the following year, exclusive of Seminoe Reservoir.

III. The State of Wyoming, its officers, attorneys, agents, and employees, be and they are hereby severally enjoined from storing or permitting the storage of water in Pathfinder, Guernsey, Seminoe, Alcova, and Glendo Reservoirs and the Inland Lakes otherwise than in accordance with the relative storage rights, as among themselves, of such reservoirs, which are hereby defined and fixed as follows:

First, Pathfinder Reservoir;
Second, Inland Lakes with the same priority date as Pathfinder Reservoir;
Third, Guernsey Reservoir;
Fourth, Seminoe Reservoir;
Fifth, Alcova Reservoir; and
Sixth, Glendo Reservoir;

Provided, however, that water accruing in priority to the storage right of a reservoir listed above, and water accruing to the Glendo Reservoir reregulating space pursuant to paragraph XVII(g), may be physically stored in, released from, or exchanged with another reservoir so long as the water is accounted in accordance with the foregoing rule of priority and only when such storage, release, or exchange will not materially interfere with the administration of water for irrigation purposes according to the priority decreed for the French Canal and the State Line Canals. Further, in accordance with the opinion of this Court dated April 20, 1993 (507 U. S. 584),. the United States has the right to divert 46,000 acre-feet of water during the^nonirrigation season months of October, November, and'April for storage in the Inland Lakes. Historically, pursuant to annual agreements entered in the discretion of the parties, such diversions have occurred at a rate not exceeding 910 cubic feet per second from gains accruing to the river downstream of Alcova Reservoir. This right shall be administered in accordance with procedures to be reviewed and adopted annually by the North Platte Decree Committee.

IV. The State of Wyoming, its officers, attorneys, agents, and employees, be and they are hereby severally enjoined from storing-or permitting the storage of water in Pathfinder, Guernsey, Seminoe, Alcova, and Glendo Reservoirs, and from the diversion of natural flow water through the Casper Canal for the Kendrick Project between and including May 1 and September 30 of each year otherwise than in accordance with the rule of priority in relation to the appropriations of the Nebraska lands supplied by the French Canal and by the State Line Canals, which said Nebraska appropriations are hereby adjudged to be senior to said five reservoirs and said Casper Canal, and which said Nebraska appropriations are hereby identified and defined, and their diversion limitations in second feet and seasonal limitations in acre-feet fixed as follows:

Lands Canal Limitation in Sec. Feet Seasonal Limitation in Acre-Feet

Tract of 1,025 acres French 15 2,227

Mitchell Irrigation District Mitchell 195 35,000

Gering Irrigation District Gering 193 36,000

Farmers Irrigation District Tri-State 748 183,050

Ramshom Irrigation District Ramshom_14_3,000

This paragraph limits the extent to which these canals may stop the federal reservoirs from storing water and the Casper Canal from diverting natural flow water. It does not place any absolute ceilings or other restrictions on the quantities of water that these canals may actually divert. Nebraska v. Wyoming, 507 U. S., at 603; see also Nebraska v. Wyoming, 515 U. S., at 10.

V. The natural flow in the Guernsey Dam to Tri-State Dam section between and including May 1 and September 30 of each year, including the contribution of Spring Creek, be and the same hereby is apportioned between Wyoming and Nebraska on the basis of twenty-five per cent to Wyoming and seventy-five per cent to Nebraska, with the right granted Nebraska to designate from time to time the portion of its share which shall be delivered into the Interstate, Fort Laramie, French, and Mitchell Canals for use on the Nebraska lands served by these canals. The natural flow in a portion of certain tributaries and drains as defined in paragraph V(a) shall also be included in the natural flow apportioned by this paragraph. The State of Nebraska, its officers, attorneys, agents, and employees, and the State of Wyoming, its officers, attorneys, agents, and employees, are hereby enjoined and restrained from diversion or use contrary to this apportionment, provided that in the apportionment of water in this section the flow for each day, until ascertainable, shall be assumed to be the same as that of the preceding day, as shown by the measurements and computations for that day. Provided further that:

(a) Diversions under surface water rights for irrigation purposes from those parts of the tributaries and drains to the North Platte River that lie within the area bounded by Whalen Diversion Dam on the west, the Ft. Laramie Canal on the south, the Interstate Canal on the north, and the Wyoming-Nebraska state line on the east, excluding the drainage basins of the Laramie River and Horse Creek, shall be administered and accounted as diversions of natural flow for the purposes of the foregoing percentage apportionment, unless the depletions to the North Platte River resulting from such diversions are replaced. The amount of such depletions, and the method for their replacement in the ordinary course of administration, shall be determined and implemented pursuant to procedures that have been approved and adopted in the Final Settlement Stipulation.

(b) Diversions for irrigation purposes from wells with water right priorities between October 8,1945, and including December 31, 2000, located within the area bounded by Whalen Diversion Dam on the west, 300 feet south of the Ft. Laramie Canal on the south, one mile north of the Interstate Canal on the north, and the Wyoming-Nebraska state line on the east, shall be regulated as follows: To the extent the pumping of such wells results in depletions to the North Platte River between Whalen Diversion Dam and the state line or to the portions of tributaries described in paragraph V(a) between May 1 and September 30, such depletions shall be replaced or the pumping shall be regulated to prevent such depletions, unless such depletions occur when the natural flow in the Guernsey Dam to Tri-State Diversion Dam reach exceeds irrigation demands in that reach. The amount of such depletions, and the method for their replacement in the ordinary course of administration, shall be determined and implemented pursuant to procedures that have been approved and adopted in the Final Settlement Stipulation.

(c) Diversions for irrigation purposes from wells with water right priorities after December 31, 2000, located within the area bounded by Whalen Diversion Dam on the west, 300 feet south of the Ft. Laramie Canal on the south, one mile north of the Interstate Canal on the north, and the Wyoming-Nebraska state line on the east, shall be regulated or subject to depletion replacement pursuant to procedures that have been approved and adopted in the Final Settlement Stipulation.

(d) The river carriage and reservoir loss calculations established in the Decree of October 8, 1945, have been replaced with administrative procedures attached to the North Platte Decree Committee Charter. These procedures may be modified from time to time by the North Platte Decree Committee.

VI. This Modified Decree is intended to and does deal with and apportion only the natural flow of the North Platte River. Storage water shall not be affected by this Modified Decree, and the owners of rights therein shall be permitted to distribute the same in accordance with any lawful contracts which they may have entered into or may in the future enter into without interference because of this Modified Decree.

VII. Such additional gauging stations and measuring devices at or near the Wyoming-Nebraska state line, if any, as may be necessary for making any apportionment herein decreed, shall be constructed and maintained at the joint and equal expense of Wyoming and Nebraska to the extent that the costs thereof are not paid by others.

VIII. The State of Wyoming, its officers, attorneys, agents, and employees be and they are hereby severally enjoined from diverting or permitting the diversion of water from the North Platte River or its tributaries at or above Alcova Reservoir in lieu of or in exchange for return flow water from the Kendrick Project reaching the North Platte River below Alcova Resérvoir.

IX. The State of Wyoming and the State of Colorado be and they are hereby each required to prepare and maintain complete and accurate records of the total area of land irrigated and the storage and exportation of the water of the North Platte River and its tributaries within those portions of their respective jurisdictions covered by the provisions of paragraphs I, 11(c), 11(d), and 11(e). The State of Wyoming is also required to prepare and maintain complete and accurate records of the total consumption of irrigation water in the portion of its jurisdiction covered by paragraphs 11(a) and 11(b). The record keeping and reporting required of the State of Wyoming by this paragraph shall be implemented in accordance with procedures that have been approved and adopted in the Final Settlement Stipulation. The records required by this paragraph shall be available for inspection at all reasonable times; provided, however, that such records shall not be required in reference to the water uses permitted by paragraphs X and XII(f).

X. This Modified Decree shall not affect or restrict the use or diversion of water from the North Platte River and its tributaries in Colorado or Wyoming for ordinary and usual domestic, municipal, and stock watering purposes and consumption.

XI. For the purposes of this Modified Decree:

(a) “Season” or “seasonal” refers to the irrigation season, May 1 to September 30, inclusive;

(b) The term “storage water” as applied to releases from reservoirs owned and operated by the United States is defined as any water which is released from reservoirs for use on lands under canals having storage contracts in addition to the water which is discharged through those reservoirs to meet natural flow uses permitted by this Modified Decree;

(c) “Natural flow water” shall be taken as referring to all water in the stream except storage water;

(d) Return flows from the Kendrick Project shall be deemed to be “natural flow water” when they have reached the North Platte River, subject to the same diversion and use as any other natural flow in the stream;

(e) “Hydrologically connected groundwater wells” are defined in procedures attached to the North Platte Decree Committee Charter as Exhibits 4, 6, and 12 approved and adopted in the Final Settlement Stipulation. The North Platte Decree Committee may modify such definition in accordance with the Final Settlement Stipulation.

XII. This Modified Decree shall not affect:

(a) The relative rights of water users within any one of the States who are parties to this suit except as may be otherwise specifically provided herein;

(b) Such claims as the United States has to storage water under Wyoming law nor will the Modified Decree in any way interfere with the ownership and operation by the United States of the various federal storage and power plants, works, and facilities;

(c) The use or disposition of any additional supply or supplies of water that may be imported into the basin of the North Platte River from the watershed of an entirely separate stream or the return flow from any such supply or supplies;

(d) The apportionment heretofore made by this Court between the States of Wyoming and Colorado of the waters of the Laramie River, a tributary of the North Platte River, down, to and including the Wheatland Project. The waters of the Laramie River below the Wheatland Project are not apportioned by this Modified Decree. The only existing limitation in this Modified Decree on Wyoming’s use of the Laramie River is provided in paragraph 11(d);

(e) The apportionment made by the compact between the States of Nebraska and Colorado, apportioning the water of the South Platte River;

(f) Water diverted for de minimis uses, defined as:

(1) Ponds with capacities of twenty acre-feet or less for purposes other than irrigated agriculture;

(2) Wells with capacities less than or equal to twenty-five gallons per minute for a single project for purposes other than irrigated agriculture; and

(3) Miscellaneous uses that withdraw or divert less than fifty acre-feet per year for a single project other than stock watering, domestic or irrigated agriculture.

XIII. Any of the parties may apply at the foot of this Modified Decree for its amendment or for further relief. Any dispute related to compliance or administration shall be submitted to and addressed by the North Platte Decree Committee before a party may seek leave of the Court to bring such dispute before the Court. The Court retains jurisdiction of this suit for the purpose of any order, direction, or modification of the decree, or any supplementary decree, that may at any time be deemed proper in relation to the subject matter in controversy. Further, the Court retains jurisdiction, upon proper showing, to adjudicate all matters for which authority or responsibility is granted to the North Platte Decree Committee by this Modified Decree or the Final Settlement Stipulation. Matters with reference to which further relief may hereafter be sought shall include, but shall not be limited to, the following:

(a) The question of the applicability and effect of the Act of August 9,1937 (50 Stat. 564, 595-596), upon the rights of Colorado and its water users;

(b) The question of the effect upon the rights of upstream areas of the construction or threatened construction in downstream areas of any projects not now existing or recognized in this Modified Decree;

(c) The question of the effect of the construction or threatened construction of storage capacity not now existing on tributaries entering the North Platte River between Pathfinder Reservoir and Guernsey Reservoir;

(d) The question of the right to divert at or above the headgate of the Casper Canal any water in lieu of, or in exchange for, any water developed by artificial drainage to the river of sump areas on the Kendrick Project;

(e) Any question relating to the joint operation of Pathfinder, Guernsey, Seminoe, Alcova, and Glendo Reservoirs whenever changed conditions make such joint operation possible;

(f) Any change in conditions making modification of the Modified Decree or the granting of further relief necessary or appropriate;

(g) Failure of the North Platte Decree Committee, or the parties to the North Platte Decree Committee, to act upon, resolve or agree on a matter that has been submitted to the North Platte Decree Committee.

XIV. The costs in the original cause were apportioned and paid pursuant to previous order of this Court. The costs in the present cause and the payment of the fees and expenses of the Special Master have been apportioned and paid according to previous orders of this Court with which the parties agree and the Court hereby confirms.

XV. The clerk of this Court shall transmit to the Governors and Attorneys General of the States of Colorado, Wyoming, and Nebraska, the Solicitor General of the United States of America, and Basin Electric Power Cooperative, copies of this Modified Decree duly authenticated under the seal of this Court.

XVI. Whatever claims or defenses the parties or any of them may have in respect to the application, interpretation, or construction of the Act of August 9, 1937 (50 Stat. 564, 595-596), shall be determined without prejudice to any party arising because of any development of the Kendrick Project occurring subsequent to October 1, 1951.

XVII. The following provisions are effective for the operation of Glendo Dam and Reservoir:

(a) The operation of the Glendo Project shall not impose any demand on areas at or above Seminoe Reservoir which will prejudice any rights that the States of Colorado or Wyoming might have to secure a modification of the Modified Decree permitting an expansion of water uses in the natural basin of the North Platte River in Colorado or above Seminoe Reservoir in Wyoming.

(b) The operation of Glendo Reservoir shall not affect the regime of the natural flow of the North Platte River except that not more than 40,000 acre-feet of the natural flow of the North Platte River and its tributaries which cannot be stored in upstream reservoirs under the provisions of this Modified Decree may be stored in Glendo Reservoir during any water year for disposition by the United States under contracts, in addition to evaporation losses on such storage, and further, the amount of water that may be held in storage at any one time for disposition by the United States under contracts, including carryover storage, shall never exceed 100,000 acre-feet. Such storage water shall be disposed of in accordance with contracts executed or to be hereafter executed, in compliance with federal law, and may be used for any beneficial purpose in Nebraska within the Platte River basin to the extent of 25,000 acre-feet annually and for any beneficial purpose in Wyoming within the Platte River basin to the extent of 15,000 acre-feet annually. The above limitation on the amount of storage of natural flow does not apply: (1) to flood water which may be temporarily stored in any capacity allocated for flood control in Glendo Reservoir; (2) to water originally stored in Pathfinder Reservoir which may be temporarily re-stored in Glendo Reservoir after its release from Pathfinder and before its delivery pursuant to contract; (3) to Inland Lakes account water temporarily stored in accordance with this Court’s Order of April 20, 1993; (4) to water which may be impounded behind Glendo Dam, as provided in the Bureau of Reclamation Definite Plan Report for the Glendo Unit, Wyoming, dated December 1952, as revised through December 1959 (Glendo Definite Plan Report) for the purpose of creating a head for the development of water power; or (5) to water in Glendo Reservoir used for the purposes described in paragraph XVII(g).

(c) Each State may substitute or supplement quantities of storage water obtained under other contractual arrangements with Glendo Reservoir storage supplies. Subject to contractual arrangements with the United States Bureau of Reclamation, including any required compliance with the Endangered Species Act, 16 U. S. C. § 1531 et seq., and the National Environmental Policy Act, 42 U. S. C. §4321 et seq., each State shall also enjoy unrestricted use of its respective storage allocation in Glendo Reservoir, so long as the use is below Glendo Reservoir and within the Platte River basin.

(d) Glendo Reservoir storage water may be consumptively used in Wyoming by exchange or other means, upstream of Glendo Reservoir under the terms of this paragraph. For every two acre-feet of Glendo storage water diverted upstream of Glendo Reservoir pursuant to such an exchange, all of which may be fully consumed, an additional acre-foot of Wyoming’s Glendo storage allocation shall be contracted at the same time for storage and release from Glendo Reservoir and passed through Guernsey Reservoir to the North Platte River. Except as may be modified in accordance with paragraph XVII(e), or by agreement of the parties, such additional water shall be released from the reservoir at the same time and at a rate proportionate to the diversion of the water contracted for use upstream from Glendo Reservoir during the irrigation season. During the nonirrigation season, due to operational constraints of the outlets at Guernsey Reservoir, such additional water will be held in the Glendo account and released prior to the first of May as may be operationally practical. Except as provided in paragraph XVII(e), once released, such additional water shall be considered natural flow water for purposes of the 75/25 apportionment specified in paragraph V.

(e) If the valid exercise or enforcement of federal law or authority requires Wyoming or a water user within Wyoming to cause the release of a portion of Wyoming’s Glendo allocation for environmental purposes downstream of Glendo Reservoir, the additional water contracted and released under paragraph XVII(d) may be dedicated to and used for that purpose. Any water released pursuant to such requirement shall not be considered natural flow but shall be administered and protected as storage water in accordance with state law within both Wyoming and Nebraska until used for its intended purposes.

(f) Storage water in Glendo Reservoir from either State’s allocation may be used for fish and wildlife purposes downstream of Glendo Reservoir under contractual arrangements with the United States Bureau of Reclamation, subject to approval of Wyoming for contracts for water from Wyoming’s storage allocation and subject to approval of Nebraska for contracts for water from Nebraska’s storage allocation. Any water released pursuant to such agreement shall not be considered natural flow but shall be administered and protected as storage water in accordance with state law within both Wyoming and Nebraska until used for its intended purposes.

(g) The United States Bureau of Reclamation has the discretion to hold water in Glendo Reservoir in excess of the limitations stated in paragraph XVII(b) in accordance with the operation of the reregulation space in Glendo Reservoir under Permit No. 5998 Res. and Certificate of Construction of Reservoir, as clarified by Order of the Wyoming State Board of Control dated November 29, 2000. Such water may be used, subject to federal law, for the following purposes:

(1) to replace water that passed the Wyoming-Nebraska state line in excess of the amount ordered by canals with storage contracts below the Wyoming-Nebraska state line as the unintended result of physical limitations on the ability to control water deliveries;

(2) to replace evaporation from the storage ownership accounts of Pathfinder Reservoir, Guernsey Reservoir, Sem-inoe Reservoir, Alcova Reservoir, and Glendo Reservoir; and

(3) to supplement the natural flow that is available for apportionment pursuant to paragraph V.

XVIII. The creation of the North Platte Decree Committee is hereby approved and ratified. Procedures that have been approved and adopted in the Final Settlement Stipulation may be modified from time to time by the North Platte Decree Committee if the modifications are consistent with the Modified Decree. In the event of a conflict between any procedure, the Final Settlement Stipulation and the Modified Decree, the provisions of this Modified Decree shall control.


source: Caselaw Access Project

author:
Chief Justice Rehnquist
      Justice Scalia, Justice Stevens,

license: Public Domain

text:
    CORRECTIONAL SERVICES CORP. v. MALESKO
    No. 00-860.
    Argued October 1, 2001
    Decided November 27, 2001

      Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Scajua, Kennedy, and Thomas, JJ., joined. Scalia, J., filed a concurring opinion, in which Thomas, J., joined, post, p. 75. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined, post, p. 75.

      Carter G. Phillips argued the cause for petitioner. With him on the briefs were Frank R. Volpe, George P. Stasiuk, and Karen M. Morinelli.

      Jeffrey A. Lamken argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Underwood, Deputy Solicitor General Clement, Barbara L. Herwig, and Thomas M. Bondy.

      Steven Pasternak argued the cause for respondent. With him on the brief was David C. Vladeck.

      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union by Elizabeth Alexander, Margaret Winter, David Fathi, and Steven R. Shapiro; and for the Legal Aid Society of the City of New York by Daniel L. Greenberg and John Boston.

   Chief Justice Rehnquist

delivered the opinion of the Court.

We decide here whether the implied damages action first recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), should, be extended to allow recovery against a private corporation operating a halfway house under contract with the Bureau of Prisons. We decline to so extend Bivens.

Petitioner Correctional Services Corporation (CSC), under contract with the federal Bureau of Prisons (BOP), operates Community Corrections Centers and other facilities that house federal prisoners and detainees. Since the late 1980’s, CSC has operated Le Marquis Community Correctional Center (Le Marquis), a halfway house located in New York City. Respondent John E. Malesko is a former federal inmate who, having been convicted of federal securities fraud in December 1992, was sentenced to a term of 18 months’ imprisonment under the supervision of the BOP. During his imprisonment, respondent was diagnosed with a heart condition and treated with prescription medication. Respondent’s condition limited his ability to engage in physical activity, such as climbing stairs.

In February 1993, the BOP transferred respondent to Le Marquis where he was to serve the remainder of-his sentence. Respondent was assigned to living quarters on the fifth floor. On or about March 1,1994, CSC instituted a policy at Le Marquis requiring inmates residing below the sixth floor to use the staircase rather than the elevator to travel from the first-floor lobby to their rooms. There is no dispute that respondent was exempted from this policy on account of his heart condition. Respondent alleges that on March 28, 1994, however, Jorge Urena, an employee of CSC, forbade him to use the elevator to reach his fifth-floor bedroom. Respondent protested that he was specially permitted elevator access, but Urena was adamant. Respondent then climbed the stairs, suffered a heart attack, and fell, injuring his left ear.

Three years after this incident occurred, respondent filed a pro se action against CSC and unnamed CSC employees in the United States District Court for the Southern District of New York. Two years later, now acting with counsel, respondent filed an amended complaint which named Urena as 1 of the 10 John Doe defendants. The amended complaint alleged that CSC, Urena, and unnamed defendants were “negligent in failing to obtain requisite medication for [respondent’s] condition and were further negligent by refusing [respondent] the use of the elevator.” App. 12. It further alleged that respondent injured his left ear and aggravated a pre-existing condition “[a]s a result of the negligence of the Defendants.” Ibid. Respondent demanded judgment in the sum of $1 million in compensatory damages, $3 million in anticipated future damages, and punitive damages “for such sum as the Court and/or [j]ury may determine.” Id., at 13.

The District Court treated the amended complaint as raising claims under, Bivens v. Six Unknown Fed. Narcotics Agents, supra, and dismissed respondent’s cause of action in its entirety. App. to Pet. for Cert. 20a. Relying on our decision in FDIC v. Meyer, 510 U. S. 471 (1994), the District Court reasoned that “a Bivens action may only be maintained against an individual,” and thus was not available against CSC, a corporate entity. App. to Pet. for Cert. 20a. With respect to Urena and the unnamed individual defendants, the complaint was dismissed on statute of limitations grounds.

The Court of Appeals for the Second Circuit affirmed in part, reversed in part, and remanded. 229 F. 3d 374 (2000). That court affirmed dismissal of respondent’s claims against individual defendants as barred by the statute of limitations. Respondent has not challenged that ruling, and the parties agree that the question whether a Bivens action might lie against a private individual is not presented here. With respect to CSC, the Court of Appeals remarked that Meyer expressly declined “‘to expand the category of defendants against whom Bivens-type actions may be brought to include not only federal agents, but federal agencies as well.’ ” 229 F. 3d, at 378 (quoting Meyer, supra, at 484 (emphasis deleted)). But the court reasoned that private entities like CSC should be held liable under Bivens to “accomplish the . . . important Bivens goal of providing a remedy for constitutional violations.” 229 F. 3d, at 380.

We granted certiorari, 532 U. S. 902 (2001), and now reverse.

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), we recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen’s constitutional rights. Respondent now asks that we extend this limited holding to confer a right of action for damages against private entities acting under color of federal law. He contends that the Court must recognize a federal remedy at law wherever there has been an alleged constitutional deprivation, no matter that the victim of the alleged deprivation might have alternative remedies elsewhere, and that the proposed remedy would not significantly deter the principal wrongdoer, an individual private employee. We have heretofore refused to imply new substantive liabilities under such circumstances, and we decline to do so here.

Our authority to imply a new constitutional tort, not expressly authorized by statute, is anchored in our general jurisdiction to decide all cases “arising under the Constitution, laws, or treaties of the United States.” 28 U. S. C. § 1331. See, e. g., Schweiker v. Chilicky, 487 U. S. 412, 420-421 (1988); Bush v. Lucas, 462 U. S. 367, 373-374 (1983). We first exercised this authority in Bivens, where we held that a victim of a Fourth Amendment violation by federal officers may bring suit for money damages against the officers in federal court. Bivens acknowledged that Congress had never provided for a private right of action against federal officers, and that “the Fourth Amendment does not in so many words provide for its enforcement by award of money damages for the consequences of its violation.” 403 U. S., at 396. Nonetheless, relying largely on earlier decisions implying private damages actions into federal statutes, see id., at 397 (citing J. I. Case Co. v. Borak, 377 U. S. 426, 433 (1964)); 403 U. S., at 402-403, n. 4 (Harlan, J., concurring in judgment) (“The Borak case is an especially clear example of the exercise of federal judicial power to accord damages as an appropriate remedy in the absence of any express statutory authorization of a federal cause of action”), and finding “no special factors counseling hesitation in the absence of affirmative action by Congress,” id., at 395-396, we found an implied damages remedy available under the Fourth Amendment.

In the decade following Bivens, we recognized an implied damages remedy under the Due Process Clause of the Fifth Amendment, Davis v. Passman, 442 U. S. 228 (1979), and the Cruel and Unusual Punishments Clause of the Eighth Amendment, Carlson v. Green, 446 U. S. 14 (1980). In both Davis and Carlson, we applied the core holding of Bivens, recognizing in limited circumstances a claim for money damages against federal officers who abuse their constitutional authority. In Davis, we inferred a new right of action chiefly because the plaintiff lacked any other remedy for the alleged constitutional deprivation. 442 U. S., at 245. (“For Davis, as for Bivens, it is damages or nothing”). In Carlson, we inferred a right of action against individual prison officials where the plaintiff’s only alternative was a Federal Tort Claims Act (FTCA) claim against the United States. 446 U. S., at 18-23. We reasoned that the threat of suit against the United States was insufficient to deter the unconstitutional acts of individuals. Id., at 21 (“Because the Bivens remedy is recoverable against individuals, it is a more effective deterrent than the FTCA remedy”). We also found it “crystal clear” that Congress intended the FTCA and Bivens to serve as “parallel” and “complementary” sources of liability. 446 U. S., at 19-20.

Since Carlson we have consistently refused to extend Bivens liability to any new context or new category of defendants. In Bush v. Lucas, supra, we declined to create a Bivens remedy against individual Government officials for a First Amendment violation arising in the context of federal employment. Although the plaintiff had no opportunity to fully remedy the constitutional violation, we held that administrative review mechanisms crafted by Congress provided meaningful redress and thereby foreclosed the need to fashion a new, judicially crafted cause of action. 462 U. S., at 378, n. 14, 386-388. We further recognized Congress’ institutional competence in crafting appropriate relief for aggrieved federal employees as a “special factor counseling hesitation in the creation of a new remedy.” Id., at 380. See also id., at 389 (noting that “Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees”). We have reached a similar result in the military context, Chappell v. Wallace, 462 U. S. 296, 304 (1983), even where the defendants were alleged to have been civilian personnel, United States v. Stanley, 483 U. S. 669, 681 (1987).

In Schweiker v. Chilicky, we declined to infer a damages action against individual Government employees alleged to have violated due process in their handling of Social Security applications. We observed that, our “decisions have responded cautiously to suggestions that Bivens remedies be extended into new contexts.” 487 U. S., at 421. In light of these decisions, we noted that “[t]he absence of statutory relief for a constitutional violation . . . does not by any means necessarily imply that courts should award money damages against the officers responsible for the violation.” Id., at 421-422. We therefore rejected the claim that a Bivens remedy should be implied simply for want of any other means for challenging a constitutional deprivation in federal court. It did not matter, for example, that “[t]he creation of a Bivens remedy would obviously offer the prospect of relief for injuries that must now go unredressed.” 487 U. S., at 425. See also Bush, supra, at 388 (noting that “existing remedies do not provide complete relief for the plaintiff”); Stanley, supra, at 683 (“[I]t is irrelevant to a special factors analysis whether the laws currently on the books afford Stanley ... an adequate federal remedy for his injuries” (internal quotation marks omitted)). So long as the plaintiff had an avenue for some redress, bedrock principles of separation of powers foreclosed judicial imposition of a new substantive liability. Chilicky, supra, at 425-427.

Most recently, in FDIC v. Meyer, we unanimously declined an invitation to extend Bivens to permit suit against a federal agency, even though the agency — because Congress had waived sovereign immunity — was otherwise amenable to suit. 510 U. S., at 484-486. Our opinion emphasized that “the purpose of Bivens is to deter the officer,” not the agency. Id., at 485 (emphasis in original) (citing Carlson v. Green, supra, at 21). We reasoned that if given the choice, plaintiffs would sue a federal agency instead of an individual who could assert qualified immunity as an affirmative defense. To the extent aggrieved parties had less incentive to bring a damages claim against individuals, “the deterrent effects of the Bivens remedy would be lost.” 510 U. S., at 485. Accordingly, to allow a Bivens claim against federal agencies “would mean the evisceration of the Bivens remedy, rather than its extension.” 510 U. S., at 485. We noted further that “special factors” counseled hesitation in light of the “potentially enormous financial burden” that agency liability would entail. Id., at 486.

From this discussion, it is clear that the claim urged by respondent is fundamentally different from anything recognized in Bivens or subsequent cases.. In 30 years of Bivens jurisprudence we have extended its holding only twice, to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by an individual officer’s unconstitutional conduct. Where such circumstances are not present, we have consistently rejected invitations to extend Bivens, often for reasons that foreclose its extension here.

The purpose of Bivens is to deter individual federal officers from committing constitutional violations. Meyer made clear that the threat of litigation and liability will adequately deter federal officers for Bivens purposes no matter that they may enjoy qualified immunity, 510 U. S., at 474, 485, are indemnified by the employing agency or entity, id., at 486, or are acting pursuant to an entity’s policy, id., at 473-474. Meyer also made clear that the threat of suit against an individual’s employer was not the kind of deterrence contemplated by Bivens. See 510 U. S., at 485 (“If we were to imply a damages action directly against federal agencies ... there would be no reason for aggrieved parties to bring damages actions against individual officers. [T]he deterrent effects of the Bivens remedy would be lost”). This case is, in every meaningful sense, the same. For if a corporate defendant is available for suit, claimants will focus their collection efforts on it, and not the individual directly responsible for the alleged injury. See, e. g., TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 464 (1993) (plurality opinion) (recognizing that corporations fare much worse before juries than do individuals); id., at 490-492 (O’Con-nor, J., dissenting) (same) (citing authorities). On the logic of Meyer, inferring a constitutional tort remedy against a private entity like CSC is therefore foreclosed.

Respondent claims that even under Meyer’s deterrence rationale, implying a suit against private corporations acting under color of federal law is still necessary to advance the core deterrence purpose of Bivens. He argues that because corporations respond to market pressures and make decisions without regard to constitutional obligations, requiring payment for the constitutional harms they commit is the best way to discourage future harms. That may be so, but it has no relevance to Bivens, which is concerned solely with deterring the unconstitutional acts of individual officers. If deterring the conduct of a policymaking entity was the purpose of Bivens, then Meyer would have implied a damages remedy against the Federal Deposit Insurance Corporation; it was after all an agency policy that led to Meyer’s constitutional deprivation. Meyer, supra, at 473-474. But Bivens from its inception has been based not on that premise, but on the deterrence of individual officers who commit unconstitutional acts.

There is no reason for us to consider extending Bivens beyond this core premise here. To begin with, no federal 'prisoners enjoy respondent’s contemplated remedy. If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity. The prisoner may not bring a Bivens claim against the officer’s employer, the United States, or the BOP. With respect to the alleged constitutional deprivation, his only remedy lies against the individual; a remedy Meyer found sufficient, and which respondent did not timely pursue. Whether it makes sense to impose asymmetrical liability costs on private prison facilities alone is a question for Congress, not us, to decide.

Nor are we confronted with a situation in which claimants in respondent’s shoes lack effective remedies. Cf. Bivens, 403 U. S., at 410 (Harlan, J., concurring in judgment) (“For people in Bivens’ shoes, it is damages or nothing”); Davis, 442 U. S., at 245 (“For Davis, as for Bivens, it is damages or nothing” (internal quotaton marks omitted)). It was conceded at oral argument that alternative remedies are at least as great, and in many respects greater, than anything that could be had under Bivens. Tr. of Oral Arg. 41-42,43. For example, federal prisoners in private facilities enjoy a parallel tort remedy that is unavailable to prisoners housed in Government facilities. See Brief in Opposition 13. This case demonstrates as much, since respondent’s complaint in the District Court arguably alleged no more than a quintessential claim of negligence. It maintained that named and unnamed defendants were “negligent in failing to obtain requisite medication . . . and were further negligent by refusing . . . use of the elevator.” App. 12 (emphasis added). It further maintained that respondent suffered injuries “[a]s a result of the negligence of the Defendants.” Ibid, (emphasis added). The District Court, however, construed the complaint as raising a Bivens claim, presumably under the Cruel and Unusual Punishments Clause of the Eighth Amendment. Respondent accepted this theory of liability, and he has never sought relief on any other ground. This is somewhat ironic, because the heightened “deliberate indifference” standard of Eighth Amendment liability, Estelle v. Gamble, 429 U. S. 97, 104 (1976), would make it considerably more difficult for respondent to prevail than on a theory of ordinary negligence, see, e. g., Farmer v. Brennan, 511 U. S. 825, 835 (1994) (“[Deliberate indifference describes a state of mind more blameworthy than negligence”).

This also makes respondent’s situation altogether different from Bivens, in which we found alternative state tort remedies to be “inconsistent or even hostile” to a remedy inferred from the Fourth Amendment. 403 U. S., at 393-394. When a federal officer appears at the door and requests entry, one cannot always be expected to resist. See id., at 394 (“[A] claim of authority to enter is likely to unlock the door”). Yet lack of resistance alone might foreclose a cause of action in trespass or privacy. Ibid. Therefore, we reasoned in Bivens that other than an implied constitutional tort remedy, “there remained]... but the alternative of resistance, which may amount to a crime.” Id., at 395 (internal quotation marks and citation omitted). Such logic does not apply to respondent, whose claim of negligence or deliberate indifference requires no resistance to official action, and whose lack of alternative tort remedies was due solely to strategic choice.

Inmates in respondent’s position also have full access to remedial mechanisms established by the BOP, including suits in federal court for injunctive relief and grievances filed through the BOP’s Administrative Remedy Program (ARP). See 28 CFR §542.10 (2001) (explaining ARP as providing “a process through which inmates may seek formal review of an issue which relates to any aspect of their confinement”). This program provides yet another means through which allegedly unconstitutional actions and policies can be brought to the attention of the BOP and prevented from recurring. And unlike the Bivens remedy, which we have never considered a proper vehicle for altering an entity’s policy, injunc-tive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.

In sum, respondent is not a plaintiff in search of a remedy as in Bivens and Davis. Nor does he seek a cause of action against an individual officer, otherwise lacking, as in Carlson. Respondent instead seeks a marked extension of Bivens, to contexts that would not advance Bivens’ core purpose of deterring individual officers from engaging in unconstitutional wrongdoing. The caution toward extending Bivens remedies into any new context, a caution consistently and repeatedly recognized for three decades, forecloses such an extension here.

The judgment of the Court of Appeals is reversed.

It is so ordered.

Justice Scalia,

with whom Justice Thomas joins, concurring.

I join the opinion of the Court because I agree that a narrow interpretation of the rationale of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), would not logically produce its application to the circumstances of this case. The dissent is doubtless correct that a broad interpretation of its rationale would logically produce such application, but I am not inclined (and the Court has not been inclined) to construe Bivens broadly.

In joining the Court’s opinion, however, I do not mean to imply that, if the narrowest rationale of Bivens did apply to a new context, I would extend its holding. I would not. Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action — decreeing them to be “implied” by the mere existence of a statutory or constitutional prohibition. As the Court points out, ante, at 67, n. 3, we have abandoned that power to invent “implications” in the statutory field, see Alexander v. Sandoval, 532 U. S. 275, 287 (2001). There is even greater reason to abandon it in the constitutional field, since an “implication” imagined in the Constitution can presumably not even be repudiated by Congress. I would limit Bivens and its two follow-on cases (Davis v. Passman, 442 U. S. 228 (1979), and Carlson v. Green, 446 U. S. 14 (1980)) to. the precise circumstances that they involved.

Justice Stevens,

with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting.

In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), the Court affirmatively answered the question that it had reserved in Bell v. Hood, 327 U. S. 678 (1946): whether a violation of the Fourth Amendment “by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct.” 403 U. S., at 389 (emphasis added). Nearly a decade later, in Carlson v. Green, 446 U. S. 14 (1980), we held that a violation of the Eighth Amendment by federal prison officials gave rise to a Bivens remedy despite the fact that the plaintiffs also had a remedy against the United States under the Federal Tort Claims Act (FTCA). We stated: “Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” 446 U. S., at 18 (emphasis added).

In subsequent cases, we have decided that a Bivens remedy is not available for every conceivable constitutional violation. We have never, however, qualified our holding that Eighth Amendment violations are actionable under Bivens. See Farmer v. Brennan, 511 U. S. 825 (1994); McCarthy v. Madigan, 503 U. S. 140 (1992). Nor have we ever suggested that a category of federal agents can commit Eighth Amendment violations with impunity.

The parties before us have assumed that respondent’s complaint has alleged a violation of the Eighth Amendment. The violation was committed by a federal agent — a private corporation employed by the Bureau of Prisons to perform functions that would otherwise be performed by individual employees of the Federal Government. Thus, the question presented by this case is whether the Court should create an exception to the straightforward application of Bivens and Carlson, not whether it should extend our cases beyond their “core premise,” ante, at 71. This point is evident from the fact that prior to our recent decision in FDIC v. Meyer, 510 U. S. 471 (1994), the Courts of Appeals had consistently and correctly held that corporate agents performing federal functions, like human agents doing so, were proper defendants in Bivens actions.

Meyer, which concluded that federal agencies are not suable under Bivens, does not lead to the outcome reached by the Court today. In that case, we did not discuss private corporate agents, nor suggest that such agents should be viewed differently from human ones. Rather, in Meyer, we drew a distinction between “federal agents” and “an agency of the Federal Government,” 510 U. S., at 473. Indeed, our repeated references to the Federal Deposit Insurance Corporation’s (FDIC) status as a “federal agency” emphasized the FDIC’s affinity to the federal sovereign. We expressed concern that damages sought directly from federal agencies, such as the FDIC, would “creat[e] a potentially enormous financial burden for the Federal Government.” Id., at 486. And it must be kept in mind that Meyer involved the FDIC’s waiver of sovereign immunity, which, had the Court in Meyer recognized a cause of action, would have permitted the very sort of lawsuit that Bivens presumed impossible: “a direct action against the Government.” 510 U. S., at 485.

Moreover, in Meyer, as in Bush v. Lucas, 462 U. S. 367 (1983), and Schweiker v. Chilicky, 487 U. S. 412 (1988), we were not dealing with a well-recognized cause of action. The cause of action alleged in Meyer was a violation of procedural due process, and as the Meyer Court noted, “a Bivens action alleging a violation of the Due Process Clause of the Fifth Amendment may be appropriate in some contexts, but not in others.” 510 U. S., at 484, n. 9. Not only is substantive liability assumed in the present case, but respondent’s Eighth Amendment claim falls in the heartland of substantive Bivens claims.

Because Meyer does not dispose of this case, the Court claims that the rationales underlying Bivens — namely, lack of alternative remedies and deterrence — are not present in cases in which suit is brought against a private corporation serving as a federal agent. However, common sense, buttressed by all of the reasons that supported the holding in Bivens, leads to the conclusion that corporate agents should not be treated more favorably than human agents.

First, the Court argues that respondent enjoys alternative remedies against the corporate agent that distinguish this case from Bivens. In doing so, the Court characterizes Bivens and its progeny as cases in which plaintiffs lacked “any alternative remedy,” ante, at 70. In Bivens, however, even though the plaintiff’s suit against the Federal Government under state tort law may have been barred by sovereign immunity, a suit against the officer himself under state tort law was theoretically possible. Moreover, as the Court recognized in Carlson, Bivens plaintiffs also have remedies available under the FTCA. Thus, the Court is incorrect to portray Bivens plaintiffs as lacking any other avenue of relief, and to imply as a result that respondent in this case had a substantially wider array of non -Bivens remedies at his disposal than do other Bivens plaintiffs. If alternative remedies provide a sufficient justification for closing the federal forum here, where the defendant is a private corporation, the claims against the individual defendants in Carlson, in light of the FTCA alternative, should have been rejected as well.

It is ironic that the Court relies so heavily for its holding on this assumption that alternative effective remedies— primarily negligence actions in state court — are available to respondent. See ante, at 72-74. Like Justice Harlan, I think it “entirely proper that these injuries be compensa-ble according to uniform rules of federal law, especially in light of the very large element of federal law which must in any event control the scope of official defenses to liability.” Bivens, 403 U. S., at 409 (opinion concurring in judgment). And aside from undermining uniformity, the Court’s reliance on state tort law will jeopardize the protection of the full scope of federal constitutional rights. State law might have comparable causes of action for tort claims like the Eighth Amendment violation alleged here, see ante, at 73, but other unconstitutional actions by prison employees, such as violations of the Equal Protection or Due Process Clauses, may find no parallel causes of action in state tort law. Even though respondent here may have been able to sue for some degree of relief under state law because his Eighth Amendment claim could have been pleaded as negligence, future plaintiffs with constitutional claims less like traditional torts will not necessarily be so situated.

Second, the Court claims that the deterrence goals of Bivens would not be served by permitting liability here. Ante, at 71 (citing Meyer). It cannot be seriously maintained, however, that tort remedies against corporate employers have less deterrent value than actions against their employees. As the Court has previously noted, the “organizational structure” of private prisons “is one subject to the ordinary competitive pressures that normally help private firms adjust their behavior in response to the incentives that tort suits provide — pressures not necessarily present in government departments.” Richardson v. McKnight, 521 U. S. 399, 412 (1997). Thus, the private corporate entity at issue here is readily distinguishable from the federal agency in Meyer. Indeed, a tragic consequence of today’s decision is the clear incentive it gives to corporate managers of privately operated custodial institutions to adopt cost-saving policies that jeopardize the constitutional rights of the tens of thousands of inmates in their custody.

The Court raises a concern with imposing “asymmetrical liability costs on private prison facilities,” ante, at 72, and further claims that because federal prisoners in Government-run institutions can only sue officers, it would be unfair to permit federal prisoners in private institutions to sue an “officer’s employer,” ibid. Permitting liability in the present case, however, would produce symmetry: both private and public prisoners would be unable to sue the principal (¿ e., the Government), but would be able to sue the primary federal agent (i e., the Government official or the corporation). Indeed, it is the Court’s decision that creates asymmetry — between federal and state prisoners housed in private correctional facilities. Under 42 U. S. C. § 1983, a state prisoner may sue a private prison for deprivation of constitutional rights, see Lugar v. Edmondson Oil Co., 457 U. S. 922, 936-937 (1982) (permitting suit under § 1983 against private corporations exercising “state action”), yet the Court denies such a remedy to that prisoner’s federal counterpart. It is true that we have never expressly held that the contours of Bivens and § 1983 are identical. The Court, however, has recognized sound jurisprudential reasons for parallelism, as different standards for claims against state and federal actors “would be incongruous and confusing.” Butz v. Economou, 438 U. S. 478, 499 (1978) (internal quotation marks omitted); cf. Bolling v. Sharpe, 347 U. S. 497, 500 (1954) (“In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government”). The value of such parallelism was in fact furthered by Meyer, since § 1983 would not have provided the plaintiff a remedy had he pressed a similar claim against a state agency.

It is apparent from the Court’s critical discussion of the thoughtful opinions of Justice Harlan and his contemporaries, ante, at 66-67, and n. 3, and from its erroneous statement of the question presented by this case as whether Bivens “should be extended” to allow recovery against a private corporation employed as a federal agent, ante, at 63, that the driving force behind the Court’s decision is a disagreement with the holding in Bivens itself. There are at least two reasons why it is improper for the Court to allow its decision in this case to be influenced by that predisposition. First, as is clear from the legislative materials cited in Carlson, 446 U. S., at 19-20, see also ante, at 68, Congress has effectively ratified the Bivens remedy; surely Congress has never sought to abolish it. Second, a rule that has been such a well-recognized part of our law for over 30 years should be accorded full respect by the Members of this Court, whether or not they would have endorsed that rule when it was first announced. For our primary duty is to apply and enforce settled law, not to revise that law to accord with our own notions of sound policy.

I respectfully dissent.

       CSC is hardly unique in this regard. The BOP has since 1981 relied exclusively on contracts with private institutions and state and local governments for the operation of halfway house facilities to help federal prisoners reintegrate into society. The BOP contracts not only with for-profit entities like CSC, but also with charitable organizations like Volunteers for America (which operates facilities in Indiana, Louisiana, Maryland, Minnesota, New York, and Texas), the Salvation Army (Arkansas, Florida, Illinois, North Carolina, Tennessee, and Texas), Progress House Association (Oregon), Triangle Center (Illinois), and Catholic Social Services (Pennsylvania).

       The Courts of Appeals have divided on whether FDIC v. Meyer, 510 U. S. 471 (1994), foredoses the extension of Bivens to private entities. Compare Hammons v. Norfolk Southern Corp., 156 F. 3d 701, 705 (CA6 1998) (“Nothing in Meyer prohibits a Bivens claim against a private corporation that engages in federal action”), with Kauffman v. Anglo-American School of Sofia, 28 F. 3d 1223, 1227 (CADC 1994) (“[Under] Meyer’s conclusion that public federal agendes are not subject to Bivens liability, it follows that equivalent private entities should not be liable either”). We hold today that it does.

       Since our decision in Borak, we have retreated from our previous willingness to imply a cause of action where Congress has not provided one. See, e. g., Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 188 (1994); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 15-16 (1979); Cannon v. University of Chicago, 441 U. S. 677, 688 (1979); id., at 717-718 (Rehnquist, X, concurring). Just last Term it was noted that we “abandoned” the view of Borak decades ago, and have repeatedly declined to “revert” to “the understanding of private causes of action that held sway 40 years ago.” Alexander v. Sandoval, 532 U. S. 275, 287 (2001).

         Justice Stevens’ claim that this case does not implicate an “extension” of Bivens, post, at 76-77, 82 (dissenting opinion), might come as some surprise to the Court of Appeals which twice characterized its own holding as “extending Bivens liability to reach private corporations.” 229 F. 3d 374, 381 (CA2 2000). See also ibid. (“Bivens liability should extend to private corporations”).

       Justice Stevens claims that our holding in favor of CSC portends “tragic consequence[s],” post, at 81, and “jeopardize^] the constitutional rights of... tens of thousands of inmates,” ibid. He refers to examples of cases suggesting that private correctional providers routinely abuse and take advantage of inmates under their control. Post, at 81, n. 9 (citing Brief for Legal Aid Society of City of New York as Amicus Curiae 8-25). See also Brief for American Civil Liberties Union as Amicus Curiae 14-16, and n. 6 (citing and discussing “abundant” examples of such abuse). In all but one of these examples, however, the private facility in question housed state prisoners — prisoners who already enjoy a right of action against private correctional providers under 42 U. S. C. § 1983. If it is true that the imperatives for deterring the unconstitutional conduct of private correctional providers are so strong as to demand that we imply a new right of action directly from the Constitution, then abuses of authority should be less prevalent in state facilities, where Congress already provides for such liability. That the trend appears to be just the opposite is not surprising given the BOP’s oversight and monitoring of its private contract facilities, see Brief for United States as Amicus Curiae 4-5, 24-26, which Justice Stevens does not mention.

       Where the government has directed a contractor to do the very thing that is the subject of the claim, we have recognized this as a special circumstance where the contractor may assert a defense. Boyle v. United Technologies Corp., 487 U. S. 500 (1988). The record here would provide no basis for such a defense.

       See, e. g., FDIC v. Meyer, 510 U. S. 471 (1994); Schweiker v. Chilicky, 487 U. S. 412 (1988); Bush v. Lucas, 462 U. S. 367 (1983); Chappell v. Wallace, 462 U. S. 296 (1983).

       Although it might have challenged the sufficiency of respondent’s constitutional claim, see ante, at 72-73, petitioner has not done so. See Tr. of Oral Arg. 55 (acknowledgment by petitioner that the complaint states an Eighth Amendment violation). Its petition for certiorari presented the single question whether a Bivens cause of action for damages “should be implied against a private corporation acting under color of federal law.” Pet. for Cert. (i).

      See Schowengerdt v. General Dynamics Corp., 823 F. 2d 1328 (CA9 1987); Reuber v. United States, 750 F. 2d 1039 (CADC 1984); Gerena v. Puerto Rico Legal Servs., Inc., 697 F. 2d 447 (CA1 1983); Dobyns v. E-Systems, Inc., 667 F. 2d 1219 (CA5 1982); Yiamouyiannis v. Chemical Abstracts Serv., 521 F. 2d 1392 (CA6 1975).
      It is true that one court has overruled its Circuit precedent in light of Meyer and held that Meyer dictates the exclusion of all corporate entities from Bivens liability. Kauffman v. Anglo-American School of Sofia, 28 F. 3d 1223 (CADC 1994). However, as another court has explained, that conclusion is in no way compelled by Meyer. See Hammons v. Norfolk Southern Corp., 156 F. 3d 701 (CA6 1998).

        Meyer also did not address the present situation because the Court understood the plaintiff’s “real complaint” in that case to be that the individual officers would be shielded by qualified immunity, 510 U. S., at 485, a concern not present in the case before us, see Richardson v. McKnight, 521 U. S. 399, 412 (1997) (denying qualified immunity to private prison guards in a suit under 42 U. S. C. § 1983).

       The Court incorrectly assumes that we are being asked “to imply a new constitutional tort,” ante, at 66. The tort here is, however, well established; the only question is whether a remedy in damages is available against a limited class of tortfeasors.

       The Court recognizes that the question whether a Bivens action would lie against the individual employees of a private corporation like Correctional Services Corporation (CSC) is not raised in the present case. Ante, at 65. Both CSC and respondent have assumed Bivens would apply to these individuals, and the United States as amicus maintains that such liability would be appropriate under Bivens. It does seem puzzling that Bivens liability would attach to the private individual employees of such corporations — subagents of the Federal Government — but not to the corporate agents themselves. However, the United States explicitly maintains this to be the case, and the reasoning of the Court’s opinion relies, at least in part, on the availability of a remedy against employees of private prisons. Cf. ante, at 72 (noting that Meyer “found sufficient” a remedy against the individual officer, “which respondent did not timely pursue” (emphasis added)).

       Although the Court lightly references administrative remedies that might be available to CSC-housed inmates, these are by no means the sort of comprehensive administrative remedies previously contemplated by the Court in Bush and Schweiker.

       The Court blames respondent, who filed his initial complaint pro se, for the lack of state remedies in this case; according to the Court, respondent’s failure to bring a negligence suit in state court was “due solely to strategic choice,” ante, at 74. ' Such strategic behavior, generally speaking, is imaginable, but there is no basis in the case before us to charge respondent with acting strategically. Cf. ante, at 73 (discussing how proving a federal constitutional claim would be “considerably more difficult” than proving a state negligence claim). Respondent filed his complaint in federal court because he believed himself to have been severely maltreated while in federal custody, and he had no legal counsel to advise him to do otherwise. Without the aid of counsel, respondent not only failed to file for state relief, but he also failed to name the particular prison guard who was responsible for his injuries, resulting in the eventual dismissal of the claims against the individual officers as time barred. Respondent may have been an unsophisticated plaintiff, or, at worst, not entirely diligent about determining the identify of the guards, but it can hardly be said that “strategic choice” was the driving force behind respondent’s litigation behavior.

       As amici for respondent explain, private prisons are exempt from much of the oversight and public accountability faced by the Bureau of Prisons, a federal entity. See, e. g., Brief for Legal Aid Society of the City of New York as Amicus Curiae 8-25. Indeed, because a private prison corporation’s first loyalty is to its stockholders, rather than the public interest, it is no surprise that cost-cutting measures jeopardizing prisoners’ rights are more likely in private facilities than in public ones.

       See also ante, at 75 (Scalia, J., concurring) (arguing that Bivens is a “relic of . . . heady days” and should be limited, along with Carlson v. Green, 446 U. S. 14 (1980), and Davis v. Passman, 442 U. S. 228 (1979), to its facts). Such hostility to the core of Bivens is not new. See, e. g., Carlson, 446 U. S., at 32 (Rehnquist, J., dissenting) (“[T]o dispose of this case as if Bivens were rightly decided would in the words of Mr. Justice Frankfurter be to start with an ‘unreality”’). Nor is there anything new in the Court's disregard for precedent concerning well-established causes of action. See Alexander v. Sandoval, 532 U. S. 275, 294-297 (2001) (Stevens, J., dissenting).