## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 18 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TED SCHEUFLER, DEBRA SCHEUFLER, husband and wife; PAUL SCHEUFLER, ELVA SCHEUFLER, husband and wife; HARVEY WILHAUS; ALICE M. RICHMOND; MABEL V. COLLE TRUST; KENNETH D. KNAPP, EILEEN KNAPP, husband and wife; PEIRCE KNAPP FARMS, INC., by agent Walter C. Peirce; VIOLET STOCKHAM; COLL-MAR FARM, INC., and LEE SCHEUFLER,Plaintiffs-Appellees-CrossAppellants,

v. GENERAL HOST CORPORATION, a New York corporation,Defendant-Appellant/CrossAppellee. No. 96-3011 No. 96-3031

Appeal from United States District Court for the District of Kansas (D.C. No. 91 1053-T)

William R. Sampson (Bill J. Hays and Paul W. Rebein with him on the brief), of-2-

Shook, Hardy & Bacon L.L.P., Overland Park, Kansas, for the appellant. Lee Turner, of Lee Turner, P.A., Great Bend, Kansas , and Deborah Turner Carney, of Carney Law Office, Golden, Colorado, forthe appellees.

Before EBEL, LOGAN, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Plaintiffs, a group of landowners and tenant farmer s in Rice County, Kansas, filed this trespass and private nuisance ac tion against defendant General Host Corporation (General Host), alleging General H ost’s salt mining operations polluted a fresh water aquifer underlying plaintiff s’ properties and prevented plaintiffs from raising irrigated crops on their la nd. Plaintiffs filed their action pursuant to 28 U.S.C. § 1332(a)(1), alleging divers ity jurisdiction. A jury returned a verdict in plaintiffs’ favor on their pr ivate nuisance claims and, following the verdict, the district court imposed p unitive damages against General Host in the amount of $550,000. General Host appea ls the jury’s verdict and the award of punitive damages. Plaintiffs have filed across-appeal challenging the district court’s decision to require the tenant far mers to join as party plaintiffs. We have jurisdiction pursuant to 25 U.S.C. § 1291 and affirm.-3- I. Since 1908, the American Salt Company (American Sal t) has operated a salt manufacturing plant in Rice County, approximat ely one-half mile southeast of Lyons, Kansas. From 1971 to 1988, American Salt wa s owned and operated by the Cudahy Company, a Delaware corporation with its principal place of business in Arizona. In turn, the Cudahy Company was a whol ly owned subsidiary of defendant General Host, a New York corporation. Cow Creek, a minor tributary of the Arkansas River, is located two miles south of Lyons. Underlying Cow Creek at varying de pths of approximately ten to seventy feet is the Cow Creek Valley Aquifer, a fre sh-water aquifer approximately one to two miles wide. The water in the aquifer flows in a southeasterly direction at a rate between one and o ne-half and five feet per day. Without the influence of pumping wells, it would ta ke approximately ten years for the water in the aquifer to travel one mile. Plaintiffs are owners and tenants of real property in rural Rice County, the majority of which is used for agricultural producti on. The specific breakdown of land ownership is as follows:
Owner Tract Ted and Debra Scheufler 160 acres in Southwest Quart er of Section 28, Township 20 South, Range 7 West.-4-

Paul and Elva Scheufler 80 acres in the West Half of the Southeast Quarter of Section 28, Township 20 South, Range 7 West. Harvey Wilhaus 277 acres in Sections 4 and 5, Townsh ip 21 South, Range 7 West. Mabel Colle Trust 147 acres in the Northeast Quarterof Section 33, Township 20 South, Range 7 West. Kenneth and Eileen Knapp 160 acres in the Southeast Quarter of Section 32, Township 20 South, Range 7 West. Violet Stockham 75 acres in the West Half of the Southwest Quarter of Section 12, Township 20 South, Range 8 West. Peirce/Knapp Farms, Inc. 80 acres in the South Half of the Southeast Quarter of Section 13, Township 20, Range 8 West. Alice Richmond 106.1 acres in the Southwest Quarter of Section 29, Township 20, Range 7 West. All of these parcels of real property lie, in whole or in part, over the aquifer. Prior to flowing under these parcels, however, the water in the aquifer flows under land occupied by the American Salt plant. In 1977, owners and tenants of land upstream from p laintiffs filed suit against General Host, Cudahy, and American Salt, cl aiming salt from American Salt’s mining operations had contaminated the waterin the aquifer, leaving it1 Some of the plaintiffs in the instant action were plaintiffs in Miller I . However,

their claims were dismissed prior to trial on the grounds that the contaminated water had not yet reached the area underlying their real property. -5- unfit for use in irrigating crops. Following a non -jury trial, the district court found the water in the aquifer was heavily polluted with salt, rendering it unfit for domestic and irrigation use. Miller v. Cudahy Co. , 592 F.Supp. 976, 990-91 (D.Kan. 1984) (Miller I ) (“Salt concentrations of over 30,000 parts per mi llion have been recorded in water drawn from the aquifer. ”). This salt pollution, the court found, resulted from two sources directly attributable to American Salt-- through surface spills at the American Salt plant, and through direct subsurface leaks from American Salt’s solution mining and sett ling activities. Although the court found growing irrigated crops (such as corn) would have been the most profitable use of the land owned by plaintiffs, it found the salt pollution of the water in the aquifer prevented plaintiffs from plan ting irrigated crops. 1 Based upon these factual findings, the district cou rt concluded the American Salt plant was a private, continuing, abat able nuisance per accidens (i.e., a private nuisance that could be abated thro ugh proper operation of the salt plant). Alternatively, the court concluded the pla nt was operated in a negligent manner and caused harm to the plaintiff landowners. Accordingly, the court awarded plaintiffs $3,060,000 “for the temporary damages to [their] annual crops wrought by the defendants’ continuing abatable nuis ance.” Id . at 1005. In2 The pollution of the aquifer by American Salt has resulted in other related

litigation. Specifically, the general liability insurer for American Salt and General Host filed suit in federal district court in Kansas seeking a declaratory judgment that it was not responsible to indemnify the companies for damages awarded in Miller Ior for the companies’ settlement of a second similar suit filed against them in 1984. The district court ruled in the insurer’s favor, and this court affirmed on appeal. American Motorists Ins. Co. v. General Host Corp. , 946 F.2d 1482, 1483 (10th Cir. 1991). -6- addition, the court awarded plaintiffs $49,500 in c onsequential damages to two domestic water wells and a dairy operation, and app roximately $8,200 in damages resulting from brine flowing over certain portions of plaintiffs’ land. Finally, based upon what it concluded was defendants’ wantonconduct, the court awarded plaintiffs $10,000,000 in punitive damages. On app eal, this court affirmed the district court’s decision in substantial part. Mil ler v. Cudahy Co. , 858 F.2d 1449 (10th Cir. 1988) (Miller II ) (upholding findings of liability and award of pun itive damages, but reversing decision to tax as costs aga inst defendants approximately $40,000 in fees and expenses incurred by plaintiffs ’ trial expert during post-trial investigation of defendants’ post-trial remedial ef forts). 2
In Miller I , the district court concluded the salt pollution i n the aquifer posed a threat to other landowners downstream: Because the aquifer flows, the salt dissolved in itwill continue to move downstream unless steps are taken to extract that s alt. Thus, increasing numbers of the state’s citizens will be injured as the pollution continues to spread. The aquifer joins the Arkansas River at Hutchinson, and that river then flows through Wichita, . . . before entering t he state of Oklahoma.-7-

Miller I , 592 F.Supp. at 999. However, both the district c ourt and this court concluded the damage to the aquifer could be remedi ed. Id. (“There is a very high probability that remedial measures could prove effective in removing a substantial amount of the pollution from the aquife r at a reasonable cost well within the range of the defendants.”); Miller II , 858 F.2d at 1456 (“The damage to the aquifer is remediable.”). In 1987, the Kansas Department of Health and Enviro nment (KDHE) ordered General Host to develop and implement a pla n to clean up the aquifer. Following this order, in February 1988, General Hos t sold the American Salt plant to NAMSCO. As part of the sale, NAMSCO agreed to t ake reasonable measures, at General Host’s expense, to comply with KDHE’s 19 87 order. In January 1987 (at approximately the same time KDH E issued its order to General Host) the Kansas Department of Water Resour ces (DWR) adopted an administrative policy which defined a specific areain Rice County (the Lyons Special Water Quality Use Area) where there was a known instance of contamination and water quality problems (i.e., the contamination caused by American Salt). The policy set forth a procedure f or DWR to use in reviewing applications for proposed appropriation of water fo r beneficial use in that area. In particular, the procedure allowed an application to be held until such time as-8-

DWR could determine whether the proposed applicatio n would adversely affect the proposed cleanup. In April 1990, the DWR enacted a moratorium on new permits for the entire Big Bend Water Management District (the Dist rict). The District encompasses parts of eight counties, approximately four or five million acres, including the Lyons Special Water Quality Use Area (which constitutes approximately one percent of the District’s total a creage). The instant case was filed by plaintiffs in February 1991. Plaintiffs claimed the contaminated portion of the aquifer had reached the area under their property and prevented them from growing irrigated crops. Accordingly, plaintiffs claimed the pollution from the American Salt plant constituted a trespass to their lands and a private nuisance thatsubstantially interfered with their rights to use and enjoy their lands. At the time the lawsuit was filed, none of the plai ntiffs had applied for, or received, a permit from DWR to pump water from the aquifer. Subsequently, in 1993, all of the plaintiffs applied for such permit s. To date, none of the permits have been acted upon by the DWR. Trial commenced on June 27, 1995, and the jury retu rned a special verdict in favor of plaintiffs on their nuisance claims on August 1, 1995. In particular, the jury concluded (1) the groundwater underlying p laintiffs’ properties was-9-

unsuitable for irrigation because of salt pollution emanating from the American Salt plant, (2) plaintiffs were unable to irrigate because of salt pollution in the aquifer, and (3) plaintiffs’ inability to obtain ir rigation permits from the State of Kansas was not an intervening cause for plaintiffs’ inability to irrigate. Based upon these conclusions, the jury awarded plaintiffs actual damages. After the initial verdict was reached, the court he ld a second phase of trial before the same jury for the purpose of deciding wh ether punitive damages were appropriate. In their verdict on this second phase , the jury determined defendant was liable for punitive damages. Pursuant to Kan. Stat. Ann § 60-3702(a), the district court held an evidentiary hearing on Septe mber 11, 1995, to determine the amount of punitive damages to be awarded. On Octob er 24, 1995, the court issued its order awarding plaintiffs $550,000 in pu nitive damages. In so doing, the court noted, in pertinent part, that “defendantcontinued to pollute the aquifer during the four years following the Miller [I] trial.” Appellant's append. I at 174. Defendant subsequently filed a motion for judgment as a matter of law, which was denied on December 6, 1995. On January 4 , 1996, defendant filed its notice of appeal “from the final judgment for actua l and punitive damages entered in this action on the 24th day of October 1995 and from an order denying General Host’s motion for judgment as a matter of law enter ed in this action on the 6th day of December 1995.” Id. at 191. Plaintiffs filed a cross appeal on January 17,-10-

1996, "from the final judgment for actual and punit ive damages entered in this action on the 24th day of October 1995." Id . at 194.
II. Defendant’s appeal Effect of plaintiffs’ failure to apply for or receive irriga tion permits Defendant contends plaintiffs’ claims are barred be cause they did not properly apply for, or receive, irrigation permits, and because no groundwater was available for their use during the period in questi on. In support of this general contention, defendant presents a number of argument s: (1) Plaintiffs did not prove and could not prove any entitlement to use of the g roundwater or to damages for its contamination; (2) the district court failed to properly apply Kansas water law to plaintiffs’ claims and has substantially interfe red with the program for management and conservation of Kansas water resourc es established by the Kansas legislature; (3) plaintiffs have no propertyinterest in the aquifer and therefore cannot receive damages because there has been no invasion of a legally protected property interest; (4) plaintiffs’ partic ipation in the state system for water appropriation was not futile; (5) the assessm ent of damages against defendant is manifestly unfair; and (6) the court’s refusal to apply Kansas water law is against public policy.-11-

Because defendant is ultimately challenging the dis trict court's denial of its motion for judgment as a matter of law, our scope o f review is de novo. See Sheet v. Salt Lake County , 45 F.3d 1383, 1387 (10th Cir.), cert. denied116 S. Ct. 74 (1995). Judgment as a matter of law is proper i f the evidence, viewed in the light most favorable to the non-moving party, prese nts no genuine issue as to any material fact and the moving party should prevail a s a matter of law. See Frandsen v. Westinghouse Corp. , 46 F. 3d 975, 977 (10th Cir. 1995).

Principles of Kansas water law Since the late 1880’s, Kansas has followed the appr opriation doctrine for water. F. Arthur Stone & Sons v. Gibson , 630 P.2d 1164, 1169 (Kan. 1981). “The appropriation doctrine is based upon the premi ses that all unused water belongs to all of the people of the state,” and “[t ]he first person to divert water from any source and use it for beneficial purposes has prior right thereto.” Id. In 1945, the Kansas legislature enacted the Water Appr opriation Act of Kansas (the Act) and created a procedure for acquiring water ap propriation rights. Id. ; see also John C. Peck & Constance Crittenden Owen, Loss of Kansas Water Rights for Non-Use , 43 U. Kan. L. Rev. 801, 802 (1995). More specifi cally, the Act created a permit system for acquiring appropriation rights. The Act also granted vested rights to all beneficial uses of water occur ring at the time the Act became effective on June 28, 1945. All vested rights carry a priority senior to all-12-

appropriation rights. Both types of water rights “ specify an authorized type of use (e.g., irrigation or municipal), annual quantity, maximum peak rate of pumpage, place of use (e.g., the given tract of lan d that may be irrigated), and point of diversion (e.g., the location of the well or pump site).” Id . at 805. The process for obtaining an appropriation right un der the Act’s permit system is multi-staged. The first step is submissi on of an application. If an application is approved by DWR, the applicant recei ves a permit formally called “an approval of application and permit to proceed.” Id . at 806. “The permit sets deadlines for the construction of diversion works and for the beneficial use of water as authorized.” Id. Typically, a permit allows a period of five years in which to use water and perfect the right. If the d eadlines are not met, the permit may be dismissed for failure to comply with its con ditions. “When the perfection period plus any extensions have expired, DWR person nel review the file and conduct a field inspection to calculate the extent to which the water right has been perfected.” Id. DWR’s calculation is formally documented in a certificate of appropriation. “The certificate represents the fin al stage of the development of an appropriation right. Because the appropriation ri ght is a kind of real property right, the certificate must be filed in the registe r of deeds office in the county where the point of diversion is located.” Id.-13-

In summary, under Kansas law, a person does not acq uire a water appropriation right upon the filing of an applicati on with DWR. Rather, in DWR’s view, a water appropriation right comes into being only after a permit is issued and the permit holder actually makes benefic ial use of the water as authorized by the permit. See id. at 807.

Was defendant entitled to judgment as a matter of law because plaintiffs lacked water appropriation rights in the aquife r? Applying the principles of Kansas water law to the uncontroverted facts of this case, it is clear plaintiffs do not have any w ater appropriation rights in the aquifer. At the time the lawsuit was filed in 1991 , none of the plaintiffs had applied to DWR for a permit. In 1993, all of the p laintiffs filed applications for permits with DWR to pump water from the aquifer forpurposes of irrigation. To date, however, none of those applications have been processed (apparently due to the 1990 moratorium). Defendant contends it is entitled to judgment as a matter of law because plaintiffs’ lack of water appropriation rights bars them from recovering damages for contamination to the aquifer. More specificall y, defendant contends because plaintiffs do not have a right to use any of the water from the aquifer, they have not been injured by the contamination and thus have no cause of action against defendant.-14-

If this were a water rights case, we would perhaps agree with defendant. The critical flaw in defendant’s argument, however, is that plaintiffs have not claimed injury to any water appropriation rights. Rather, plaintiffs have consistently claimed, under a theory of continuing nuisance, that defendant’s conduct unreasonably interfered with their use and enjoyment of their land, in particular their ability to grow irrigated crops on their land. See Finlay v. Finlay , 856 P.2d 183, 189 (Kan.App. 1993) (summarizing rule s applicable to nuisance claims under Kansas law); see also United Proteins v. Farmland Indus. , 915 P.2d 80, 85 (Kan. 1996) (noting nuisance actions can be based on theories of intentional nuisance, strict liability, or negligen ce). Consistent with this theory, plaintiffs sought and received an award of temporary damages for injuries caused to their land. See Miller II , 858 F.2d at 1457 (approving temporary damage formula utilized by district court in first trial); see generallyAlexander v. Arkansas City , 396 P.2d 311, 315 (Kan. 1964) (where injury is te mporary or remediable, measure of damages is depreciation of r ental or usable value during continuance of injury within period limited by stat ute of limitations). The fact that plaintiffs had no water appropriation rights in the aquifer and were not irrigating at the time the contamination o ccurred was not fatal to plaintiffs’ continuing nuisance claims. In Vickrid ge Homeowners Ass’n, Inc. v. Catholic Diocese of Wichita , 510 P.2d 1296 (Kan. 1973), the Kansas Supreme-15-

Court held that “‘[a] private nuisance is a tort re lated to an unlawful interference with a person’s use or enjoyment of his land.’” Id

. at 1302 (quoting Culwell v. Abbott Construction Co. , 506 P.2d 1191, Syl. ¶ 2 (Kan. 1973)). Although the particular use allegedly infringed must be “reasona ble,” id. , there is no requirement that it be actual. See Williams v. Amoco Production Co. , 734 P.2d 1113 (Kan. 1987) (outlining essential elements of p rivate nuisance claim; interference with actual use or enjoyment not an es sential element of claim); see also Meat Producers, Inc. v. McFarland , 476 S.W.2d 406, 410 (Tex. Civ. App. 1972) (“in determining the existence of a nuisance, the jury is not limited to consideration of the actual use of the land”). Thi s is entirely logical in light of the fact that the market value of land is tied not to the actual use of the land but rather to any reasonable use to which the land may be appropriated. See id. ; see also Alexander , 396 P.2d at 315. Thus, although none of the plai ntiffs had actually used their lands for growing irrigated cro ps prior to learning of the contamination in the aquifer, they were nevertheles s entitled to proceed on their continuing nuisance claims. This is not to say, however, that plaintiffs’ lack of water appropriation rights was irrelevant. As the district court corre ctly concluded, plaintiffs’ lack of water appropriation rights was a potential interven ing cause for plaintiffs’ inability to grow irrigated crops on their land. S ee Finkbiner v. Clay County , 714-16-

P.2d 1380, 1384 (Kan. 1986) (“One person’s [wrongfu l conduct] is not the proximate or direct cause of an injury where there is a new, separate, wholly independent, and efficient intervening cause of the injury and the loss.”); see also Major By and Through Major v. Castlegate, Inc. , 935 P.2d 225, 230 (Kan.App. 1997) (proximate or legal cause of injury is cause which in natural and continuous sequence, unbroken by efficient intervening cause, produces injury and without which injury would not have occurred). Because the parties submitted conflicting evidence on this issue, the district court properlysubmitted the issue to the jury.
See Barkley v. Freeman , 827 P.2d 774, 778 (Kan.App. 1992) (generally speaking, question of whether particular act is proximate cau se of injury is question for jury). In conclusion, we believe the district court correc tly treated plaintiffs’ lack of water appropriation rights as a potential interv ening cause for plaintiffs’ injuries rather than as a complete bar to plaintiff s’ continuing nuisance claims.

Was it futile for plaintiffs to apply for water appropriatio n rights? In response to defendant’s argument that the lack o f water appropriation rights was an intervening cause for plaintiffs' inability to irrigate, plaintiffs argued that applying to the DWR for water appropriation rights would have been futile because the groundwater underneath their pro perty was polluted with salt before the 1990 moratorium was established. In the instructions to the jury, the-17-

district court outlined the procedure under Kansas law for obtaining a permit to irrigate, and specifically noted: "Kansas law does not allow a permit to be granted for irrigation unless it will actually be put into use. Where the water cannot be used, a permit application will be denied solely fo r that reason." Appellant's append. I at 137. With respect to plaintiffs’ futi lity argument, the court instructed the jury: Plaintiffs contend that their failure to apply for irrigation permits and the 1990 moratorium do not constitute an independent and intervening cause because the salt pollution it self would have prevented plaintiffs from obtaining and using irrig ation permits when they were available. In other words, plaintiffs co ntend it would have been futile to apply for irrigation permits. An act is futile when, under the circumstances surr ounding it, the act will serve no beneficial purpose, and the c ircumstances which deprive the act of any benefit are known initially. The law does not require people to engage in futile acts. Plaintiffs have the burden to prove futility. If y ou determine that to apply for water use permits would have been futile, then you must find that the failure or inability to obtain i rrigation permits is not an intervening cause for plaintiffs’ inability to irrigate. Id. at 139. As reflected in the verdict form, the jury was aske d a series of questions designed to determine whether salt pollution in the aquifer was the proximate cause of plaintiffs’ inability to irrigate, or whet her, as alleged by defendant, plaintiffs’ inability to obtain irrigation permits from the DWR was an intervening cause for the inability to irrigate. In returning a verdict in favor of plaintiffs, the jury determined plaintiffs were unable to irrigate because of salt pollution in the3At the conclusion of its futility argument, defendant implies that plaintiffs failed

to exhaust administrative remedies available to them. Seeappellant's br. at 29. We find no merit to this argument. Defendant has cited no Kansas authority that requires a landowner to seek administrative relief prior to filing a nuisance action. -18- aquifer emanating from the American Salt plant, and that plaintiffs’ inability to obtain irrigation permits was not an intervening ca use. More specifically, the jury rejected defendant’s assertions that plaintiffs’ in ability to irrigate was caused by plaintiffs’ failure to obtain irrigation permits be fore 1990 and by the 1990 moratorium on new irrigation permits in the Big Ben d Groundwater District. Implicit in these findings is an acceptance of plai ntiffs’ futility argument, i.e., the jury had to implicitly find the groundwater under p laintiffs’ parcels of land was contaminated prior to 1990, rendering plaintiffs' p ursuit of irrigation permits through the permit application process futile. On appeal, defendant argues plaintiffs’ participati on in the state system for water appropriation was not futile. Although the p recise nature of defendant’s argument is not entirely clear, we construe the arg ument as a challenge to the sufficiency of the evidence underlying the jury’s f inding of futility. 3 As our circuit rules make clear, such challenges require s ubmission and review of the entire trial transcript. See 10th Cir. R. 30.1.1 (“It is the responsibility of appellant’s counsel to file an appendix sufficient for consideration and determination of the issues on appeal.”); see also 10th Cir. R. 10.1.1 (“It is the-19-

appellant’s responsibility to order and provide all portions of the transcript necessary to give the court of appeals a complete a nd accurate record of the proceedings insofar as such proceedings relate to the issues raised on appeal, and when sufficiency of the evidence is raised, the ent ire trial transcript ordinarily should be provided.”). Because defendant has inclu ded only a small fraction of the trial transcript in the record on appeal, we co nclude we do not have a sufficient record to review this issue. See Taylor v. Phelan , 9 F.3d 882, 884 n. 4 (10th Cir. 1993); Deines v. Vermeer Mfg. Co. , 969 F.2d 977, 979 (10th Cir. 1992) (holding twenty pages of trial transcript insuffici ent for review of claims that verdict was against weight of evidence, that instru ctions were clearly erroneous, and that court made evidentiary errors).

Defendant's other related arguments Defendant has asserted several other related argume nts concerning plaintiffs' lack of water appropriation rights. Sp ecifically, defendant contends the district court failed to properly apply Kansas wate r law to plaintiffs' claims and has thereby substantially interfered with the progr am for management and conservation of Kansas water resources, the assessm ent of damages against defendant is manifestly unfair, and the district co urt's refusal to apply Kansas water law is against public policy. We find no mer it in these contentions. Although defendant repeatedly contends the districtcourt either refused to apply-20-

or misapplied Kansas water law, the record on appea l simply does not support these contentions. To the contrary, the record sug gests the court correctly outlined to the jury the method for obtaining irrig ation permits under Kansas law. Notably, defendant has not challenged any of the co urt's jury instructions regarding plaintiffs' legal basis for recovery and the basis for assessment of damages against defendant.

Did the district court err in allowing Lee Scheufler and Coll-Mar Farm, Inc., to join as plaintiffs during trial? Defendant contends the district court erred in allo wing tenants Lee Scheufler and Coll-Mar Farm, Inc., to join the acti on as plaintiffs under Fed. R. Civ. P. 17(a), and in allowing these new plaintiffs ’ claims to relate back to the date of commencement of this action. In support of these contentions, defendant argues these tenants knew their landlords had sued defendant, yet made a conscious decision not to join the action and incurlegal expenses. Defendant further argues it was prejudiced by joinder of thes e parties because it did not conduct discovery in their claims. According to de fendant, it may have had a viable defense against these parties because they m ay have renewed their respective lease agreements “with knowledge of the lost crop potential for some or all of the crop years at issue in the lawsuit.” Appellant’s br. at 35. As for the relation-back issue, defendant contends the tenants were new parties with new-21-

causes of action and should have been allowed to se ek damages for only the two years prior to asserting their claims. Plaintiffs make several arguments in response. Fir st, plaintiffs allege defendant was aware, prior to suit being filed, of written agreements between the landowners and tenants authorizing the landowners t o pursue claims on behalf of their tenants. Second, plaintiffs argue defendant made a deliberate tactical choice not to raise the issue until mid-trial, and was at fault for doing so. Third, plaintiffs argue defendant was not prejudiced by jo inder of the tenants. Specifically, plaintiffs allege defendant deposed e very tenant during the course of discovery and, in at least two of those depositions , asked questions regarding how the landlord and tenant had agreed to proceed in th is lawsuit. Further, plaintiffs alleged defendant not only failed to take advantage of additional discovery that was expressly authorized by the district court, buthas also failed to explain on appeal why it did not do so. Finally, plaintiffs a rgue it would have been inequitable for the district court not to allow the tenants to join as plaintiffs in light of the fact they were injured by defendant’s conduct, and in light of defendant’s awareness of their injuries and their a greements with their respective landlords. In allowing the tenants to join as plaintiffs, the district court relied on Fed. R. Civ. P. 17(a), which provides that “[n]o action shall be dismissed on the4 In Miller I , the district court allowed landowners to use such assignment

agreements to recover on behalf of their respective tenants. Accordingly, plaintiffs in this action believed they could use similar assignment agreements. -22- ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection fo r ratification of commencement of the action by, or joinder or substi tution of, the real party in interest.” The function of Rule 17(a) “is simply t o protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as re s judicata.” Rule 17(a) Advisory Committee Notes (1966). In reviewing a district co urt’s decision to allow joinder of a real party in interest under Rule 17, we apply an abuse of discretion standard.
See Harris v. Illinois-California Express, Inc. , 687 F.2d 1361, 1373-74 (10th Cir. 1982); Metropolitan Paving Co. v. International Uni on of Operating Engineers , 439 F.2d 300, 306 (10th Cir.1971). We conclude the district court did not abuse its di scretion in joining the tenants as real parties in interest under Rule 17(a ). Plaintiffs’ failure to include the tenants as party plaintiff from the beginning w as not the result of some tactic designed to prejudice defendant, but instead was th e result of a mistake as to the legal effectiveness of the documents allegedly assi gning the tenants’ claims to their respective landlords. 4 See Advanced Magnetics, Inc. v. Bayfront Partners,
Inc. , 106 F.3d 11, 20 (2d Cir. 1997) (failure to includ e proper plaintiff result of-23-

mistake as to legal effectiveness of purported assi gnment of claims). Moreover, there has been no tangible showing that defendant w as prejudiced by the joinder. Although defendant contends it was unable to conduc t discovery on possible defenses relevant to the tenants’ claims, this is s imply untrue. After joining the tenants as plaintiffs, the district court expresslygranted defendant the option of conducting additional discovery. Apparently, defen dant chose not to do so. In any event, the record suggests defendant was well aware of the relevant parties in this action and what the critical issues would be, and thus should not have been surprised by the joinder. See Garcia v. Hall , 624 F.2d 150, 151 n.3 (10th Cir. 1980) (defendants would not be prejudiced by changi ng named plaintiff because “[t]hey knew the persons and the issues involved be fore the statute of limitations ran”). In particular, the record on appeal suggest s defendant was well aware, from the beginning of the lawsuit, that the plainti ffs/landowners intended to recover on behalf of their respective tenants. Further, joinder of the tenants did not alter the complaint’s factual allegations, nor did it substantially change the issues in the case. In fact, the joinder had no ef fect on the jury’s function because the parties stipulated they would divide th e damages between landowners and tenants after trial. Finally, it appears joind er of the tenants was appropriate to avoid forfeiture of just claims. See Fed. R. Civ. P. 15 Advisory Committee Notes (1966) (describing purpose of Rule 17(a)).-24-

In a secondary argument, defendant contends it neve r moved for dismissal of any “action” or any “plaintiff,” and therefore t he district court should not have relied on Rule 17(a). This argument is disingenuou s. Defendant knew from the beginning of this action that the plaintiffs/landow ners were intending, pursuant to their agreements with their tenants, to seek full r ecovery for each parcel of land (including any portion of damages allocable to the tenants). By claiming mid-trial that the tenants were real parties in interest, def endant was essentially seeking dismissal of the tenants’ claims for damages (whichthe landowners thought they had a right to bring). Accordingly, we conclude itwas entirely appropriate for the district court to rely on Rule 17(a) in determining whether the tenants were real parties in interest and in joining them as parties to the action. As for the relation back of the tenants’ claims, th e last sentence of Rule 17(a) specifically provides that “joinder . . . sha ll have the same effect as if the action had been commenced in the name of the real p arty in interest.” In short, the language of the rule mandated that, once the di strict court concluded the tenants were real parties in interest and allowed t hem to join as plaintiffs, their claims automatically related back to the original f iling of the action. See Advanced Magnetics , 106 F.3d at 21 (substitution of plaintiffs under Rule 17(a) “will relate back to the date of the original compl aint under the express terms of that Rule”). Such a result seems particularly appr opriate in light of the fact that-25-

plaintiffs’ failure to name the tenants as parties in the first place was due to their mistaken belief about the legal effectiveness of th eir assignment agreements with the tenants. Although defendant cites to Rule 15(c ) in support of its assertion that the tenants’ claims should not relate back, nothing in that rule undercuts the mandatory relation-back provision of Rule 17(a). S ee Fed. R. Civ. P. 15 Advisory Committee Notes (1966) (“The relation back of amend ments changing plaintiffs is not expressly treated in revised Rule 15(c).”).

Did the district court err in awarding plaintiffs punitive d amages? Defendant contends the punitive damage award impose d by the district court is duplicative and unreasonable because it wa s based on the same wrongful conduct previously punished by the district court i n Miller I . In support of this contention, defendant points to a single sentence i n a May 16, 1995, order in which the district court noted “a large punitive da mages award in this case is unlikely as the defendant has already paid $10 mill ion in punitive damages for the same wrongful conduct at issue in this case.” Appe llant's append. I at 91. We disagree with defendant's interpretation of the district court's order. This order dealt with defendant’s motion to bifurcate the trial into liability/actual damage and punitive damage phases. In noting signi ficant punitive damages had already been imposed on defendant in 1984, the dist rict court was expressly considering “the issues of fairness and economy,” i d ., and was not intending to-26-

make any definitive ruling with respect to defendan t’s liability for punitive damages in the instant case. For purposes of this appeal, the more telling order is the one issued by the district court on October 24, 1995. That order, issued after the jury had authorized punitive damages and after the court had conducted a hearing on the punitive damages issue, actually imp osed punitive damages in the amount of $550,000 on defendant. In pertinent part , the court noted therein that “this case involves some wrongful conduct which occ urred after the [Miller I ] trial in addition to the original pollution of the aquifer.” Id. at 171. Later in the same order, the court again emphasized that “defend ant continued to pollute the aquifer during the four years following the [MillerI ] trial.” Id. at 174. Finally, the court specifically stated: “The court believes that the additional pollution [after 1984] warrants some additional punishment, b ut recognizes that the level of misconduct since 1984 is minor compared to the misc onduct before that time.” Id. at 175. Because the district court specifically found that defendant continued to pollute the aquifer after 1984 (a factual finding w hich defendant has not challenged on appeal), and because the court specif ically concluded the additional pollution warranted punishment, defendant’s argument about being punished twice for the same conduct is baseless. Although de fendant contends the pollution that occurred after 1984 would not yet have reached the groundwater under-27-

plaintiffs’ respective properties, there is no indi cation in the record that it presented this argument to the district court. Even assuming, for purposes of argument, that the p unitive damages award in this case is based on the same conduct at issue in Miller I , we conclude defendant’s argument is meritless for several reaso ns. First, this case involves different plaintiffs from Miller I , and thus involves different injuries and damages. Second, the Kansas Supreme Court rejecteda similar argument in McDermott v. Kansas Public Service Co. , 712 P.2d 1199, 1201-03 (Kan. 1986). Although the Kansas Supreme Court has since express ed concerns about the extent of punitive damages a defendant may face in mass tort litigation, there is no indication the court would be receptive to compl etely eliminating punitive damage awards in successive lawsuits filed by diffe rent plaintiffs although the lawsuits arise out of the same course of conduct. See Tetuan v. A.H. Robins Co. , 738 P.2d 1210, 1241-44 (Kan. 1987). Third, althoug h the United States Supreme Court recently emphasized the Due Process Clause of the Fourteenth Amendment prohibits a state from imposing grossly excessive p unishment on a tortfeasor, BMW of North America, Inc. v. Gore , 116 S.Ct. 1589 (1996), it did not hold multiple punitive damage awards arising out of the same conduct are unconstitutional. Fourth, defendant in this case w as granted considerable procedural safeguards with respect to the punitive damage issue. In particular,-28-

the court bifurcated the trial into actual liability/actual damages and punitive damages phases. Further, although the jury determi ned whether punitive damages should be awarded, it was the district court that d etermined the amount of those damages, and the court did so pursuant to strict st atutory guidelines. Finally, as reflected in the October 24, 1995, order imposing p unitive damages, consideration was given to the previous punitive damage award in Miller I . Accordingly, we conclude the punitive damage award in this case is entirely appropriate.
Plaintiffs’ cross-appeal Did the district court err in concluding Kansas law preclude d the tenants from ratifying the landowners’ lawsuit on their beh alf? In their cross-appeal, plaintiffs contend the distr ict court erred in concluding Kansas law prevented the tenants from ratifying the landlords’ lawsuit. Accordingly, plaintiffs argue, it was unn ecessary to join the tenants as real parties in interest under Rule 17(a). A proper ratification pursuant to Rule 17(a) requir es the ratifying party to authorize continuation of the action, and agree to be bound by the lawsuit’s result. Mutuelles Unies v. Kroll & Linstrom , 957 F.2d 707, 712 (9th Cir. 1992). In reviewing a district court’s decision to allow or d isallow ratification by the real party in interest, we apply an abuse of discretion standard. Arabian American Oil Co. v. Scarfone , 939 F.2d 1472, 1477 (11th Cir. 1991).-29-

We find no abuse of discretion on the part of the d istrict court in this case. Under Kansas law, the property interests of a lando wner and tenant are distinct, and one may not recover damages based upon the othe r's interests. Binder v. Perkins , 516 P.2d 1012, 1017 (Kan. 1973). Further, Kansas law prohibits the assignment of tort claims. E.g. , Morsey v. Chevron, USA, Inc. , 94 F.3d 1470, 1478 (10th Cir. 1996); Heinson v. Porter , 772 P.2d 778, 783-85 (Kan. 1989), overruled in part on other grounds byGlenn v. Fleming , 799 P.2d 79 (Kan. 1990). Here, the district court correctly concluded ratifi cation by the tenants in this case would have amounted to an assignment of their tort claims against defendant, a result that would have violated Kansas law.
III. Plaintiffs' response to defendant's motion to file a supplemental appendix is construed as a request to reconsider this court's o rder granting the motion. Plaintiffs' motion to reconsider is DENIED. Defend ant's motions to file a second and third supplemental appendix are GRANTED. The j udgment of the district court is AFFIRMED.