Santa Fe, New Mexico April 5–6, 2018
At the 18th Annual Law of the Rio Grande Conference in Santa Fe—a gathering of stakeholders from Colorado, New Mexico, and Texas—several professionals took advantage of the opportunity to weigh in on Texas v. New Mexico & Colorado, an ongoing case before the United States Supreme Court. Three presenters, one from each state, gave a formal update on its status.
The presenter from Texas provided a brief orientation to Supreme Court jurisdiction and procedure as it relates to the case in question. The Supreme Court has exclusive and original jurisdiction over actions among states. Because that jurisdiction is discretionary, a state must petition the Court for permission to file a complaint against another state. If the Court grants the motion to file, it then appoints a Special Master to hear the case and make a report with recommendations for how it should be resolved. The parties then file any “exceptions” to the Special Master’s Report. The Court reviews the exceptions and issues its Order.
Overview presentations of the Rio Grande Basin provided background for the facts of the case. The Rio Grande Compact is an interstate agreement between Colorado, New Mexico, and Texas that apportions Rio Grande Basin water among the three states. Under the Compact, Colorado must deliver a specific quantity to New Mexico, and New Mexico must deliver a specific quantity to the Elephant Butte Reservoir, from which water is distributed to New Mexico and Texas. Elephant Butte Reservoir, located in southern New Mexico, is a federal Bureau of Reclamation project. Texas v. New Mexico & Colorado is based on Texas’ allegation that New Mexico has violated the Compact by allowing diversion of surface water and pumping of groundwater that is hydrologically connected to the Rio Grande below Elephant Butte Reservoir, thereby depleting Texas’ share of water. Given the case’s pending status, New Mexico did not delve into its position at the conference, however, in its 2014 Motion to Dismiss, it asserted that the Compact does not require New Mexico to preserve conditions on the Rio Grande below Elephant Butte Reservoir.
The Colorado presenter provided a timeline for the procedural history of Texas v. New Mexico & Colorado:
2013 Texas moved for leave to file
2014 The Supreme Court granted Texas’ motion to file
United States filed Motion to Intervene, which the Court granted
New Mexico filed Motion to Dismiss
Court appointed Special Master
Elephant Butte Irrigation District filed Motion to Intervene
2015 El Paso Water District 1 filed Motion to Intervene
Special Master heard oral argument on all Motions
2016 Special Master issued draft First Interim Report on all Motions
Parties provided comments for consideration
2017 Special Master issued final First Interim Report with the Court
Parties filed exceptions to First Interim Report
The Court denied Motion to Dismiss and Motions to Intervene
The Court sustained the United States’ and Colorado’s exceptions concerning the scope of compact claims the United States can assert
2018 January – The Court heard oral argument on exceptions
March – The Court granted the United States’ right to file compact claims under certain circumstances
April – The Court discharged the Special Master and appointed a new one
Next New Mexico and Colorado to file answers with any counterclaims
Steps Responses to any counterclaims
Karen Kwon, First Assistant Attorney General from Colorado, was the first to take the podium for the formal presentation of the case update. Kwon started off by reminding the audience that, although the case is more frequently referred to as “Texas v. New Mexico,” the audience must not to forget that it is actually Texas v. New Mexico & Colorado. She addressed Colorado’s interest in the case even though the controversy is between Texas and New Mexico. She explained that because Colorado is a signatory to the Compact, how the case is decided could affect its interests. Kwon outlined Colorado’s concerns to be: (1) protecting the State and its water users’ interests in the Rio Grande Basin; and (2) protecting the State’s sovereign interests in compact law more broadly.
Speaking to the second of the two concerns, Kwon clarified Colorado’s rationale for taking exception to the United States’ ability to pursue claims for Compact violations. She specifically noted the State’s motivation to avoid “compact challenges by non-signatories, or by third-parties who may frustrate the purpose and intent of the signatory states.” She further emphasized that the Court’s March 5, 2018 opinion did not grant the United States ability to assert compact claims in all cases. It found only that intervention was appropriate in this case, considering the United States’ “distinctively federal interests” in this particular Compact, which concerns a federal reclamation project and international agreements with Mexico. Kwon concluded by emphasizing that Colorado does not want to be “dragged into the litigation any more than it has to” in order to protect the interests she discussed.
Second to speak was Jon Niermann, Commissioner of the Texas Commission on Environmental Quality. Niermann provided a more detailed summary of Texas’ allegations: (1) the 1938 Rio Grande Compact affects equitable apportionment of waters between states; (2) the Compact is predicated on the understanding that water released from the Elephant Butte Reservoir would not be subject to depletion in excess of what existed in 1938; and (3) New Mexico has taken water to which Texas is entitled by increasingly allowing diversion of surface water and extraction of groundwater below the reservoir. Niermann also outlined New Mexico’s arguments in its Motion to Dismiss that: (1) the Compact contains no language requiring New Mexico to preserve conditions on the Rio Grande below the reservoir; and (2) Texas’ sole recourse is legal and administrative remedies under New Mexico state law.
Niermann discussed the Special Master’s recommendations. In recommending that the Court deny New Mexico’s Motion to Dismiss, the Special Master noted, “New Mexico . . . may not divert or intercept water it is required to deliver pursuant to the 1938 Compact to Elephant Butte Reservoir after that water is released from the Reservoir,” and “it is unfathomable to accept that Texas would ‘trade away its right to the Court’s equitable apportionment’ had it contemplated then that New Mexico would be able to disown its obligations under the 1938 Compact and simply recapture water it delivered to the Project.”
Nierman also discussed the exceptions to the Special Master’s Report, noting that Texas filed no exceptions. Niermann touched on a topic that came up at various points throughout the entire Conference, the fact that the Special Master’s Report included extensive outside analysis and history of the Compact. Niermann explained that both New Mexico and Colorado took exception to “the detailed analysis undertaken by the Special Master,” but that in its reply, Texas noted the analysis was sound and necessary to understanding the Special Master’s recommendations.
David Roman of Albuquerque New Mexico law firm, Robles, Rael & Anaya, was the final presenter. Roman’s presentation was the most limited, given the status of the case. Roman did not weigh in on New Mexico’s legal arguments or whether they would be in line with those from its Motion to Dismiss. He did offer some input regarding the ethics of the outside research reflected in the Special Master’s Report. He noted that the Supreme Court has held that judges are free to conduct whatever research they want. However, a December 8, 2017 ABA Formal Opinion titled “Independent Factual Research by Judges Via the Internet,” concludes that “[i]ndependent investigation of adjudicative facts generally is prohibited unless the information is properly subject to judicial notice.”
The presenters fielded questions at the conclusion of the presentation. One discussion involved speculation as to why the Supreme Court had assigned a new Special Master. It was suggested this could have been in response to the previous Special Master’s extensive outside research, but the actual reason remained a mystery to all parties. The timing of the Conference, in the midst of Texas v. New Mexico & Colorado, led to the case being laced into almost every presentation and made for some tense moments. During his presentation, New Mexico state Senator and gubernatorial candidate Joseph Cervantes prodded all stakeholders to “cut to the chase” and seriously consider what the inevitable settlement will look like. Another attorney for Texas concluded her presentation with a picture of a New Mexico groundwater well from south of Elephant Butte Reservoir apparently pumping water directly out of the Rio Grande. In spite of the tension, all parties did seem to share some optimism that after more than five years, the appointment of a new Special Master could help to move the case toward resolution.