July 02, 2018

Developments in Texas v. New Mexico and Colorado, No. 141 Original

Chad M. Wallace

In recent years, states have brought a number of water apportionment original jurisdiction cases to the U.S. Supreme Court’s attention. In one currently pending case, State of Texas v. State of New Mexico and State of Colorado, No. 141 (S. Ct.), the parties asked the Court to decide whether the United States can sue New Mexico for violation of the Rio Grande Compact, ch. 155, 53 Stat. 785 (1939). The question arose because a U.S. Bureau of Reclamation (Reclamation) project delivers water to New Mexico and Texas, yet the United States is not a party to or allocated any water by the Rio Grande Compact.

The Rio Grande begins in the mountains of southern Colorado and flows south through central New Mexico and then to Texas, where it forms the international boundary with Mexico. Water shortages in the late nineteenth century caused concerns for both Mexico and farmers in the United States, who relied on the river for irrigation in this arid region. By 1916, Reclamation had completed a large reservoir in New Mexico, capable of storing water for later delivery to irrigators in New Mexico and Texas. It also provided water to Mexico pursuant to a 1906 treaty. Conv. between the United States and Mexico for the Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes, May 21, 1906, U.S.-Mex., 34 Stat. 2953. Later, in 1938, the States of Colorado, New Mexico, and Texas negotiated the Rio Grande Compact equitably apportioning the waters of the Rio Grande above Fort Quitman, Texas, among the three of them.

The current controversy originated with Texas filing a claim in the Supreme Court against New Mexico, alleging violations of the Rio Grande Compact. It alleged, “New Mexico’s actions, in allowing and authorizing the interception of Rio Grande Project water intended for use in Texas, violates the purpose and intent of the Rio Grande Compact, causing grave and irreparable injury to Texas.” Complaint at ¶ 4. Texas named Colorado as a defendant because it is a party to the Compact but asserted no claims for relief against it. The United States sought intervention in the case and filed a complaint mirroring the claims by Texas. The Supreme Court both accepted Texas’ complaint and the complaint in intervention of the United States but invited New Mexico to file a motion to dismiss, which it did.

New Mexico’s argument relied largely on the absence of terms in the Rio Grande Compact regarding distribution of water below Reclamation’s reservoir: “The Compact imposes no affirmative duty on New Mexico to prevent interference with deliveries of Rio Grande Project (Project) water by the United States.” New Mexico’s Motion to Dismiss Texas’ Complaint and the United States’ Complaint in Intervention (04/30/14) at 1. Meanwhile, the two irrigation districts that received water from the Reclamation project, Elephant Butte Irrigation District in New Mexico and El Paso County Water Improvement District No. 1 in Texas, each moved to intervene in the suit. The Supreme Court referred these issues to a special master.

The special master made recommendations on these issues in his First Interim Report. First, he recommended denial of New Mexico’s motion to dismiss. Second, he issued mixed recommendations regarding the United States. The special master stated that the United States, because it was not a party to the Rio Grande Compact and not apportioned any water, could not bring a claim against New Mexico under the Compact. However, at the same time, he recommended that the Supreme Court exercise its original, but not exclusive, jurisdiction to allow the United States to continue with claims under federal reclamation law. Finally, he recommended denying the intervention of the two state irrigation districts. The parties all filed briefs with exceptions to various parts of the special master’s report. This set up the issues heard by the Supreme Court.

The Court requested argument on two exceptions. The United States filed an exception to the special master’s recommended dismissal of its Rio Grande Compact claim. It argued, “The United States may obtain such relief both because the Compact is a federal law that protects specific federal interests, and because the United States is an intended third-party beneficiary of the Compact.” U.S. Exception brief at 28. Colorado filed an exception from the opposite perspective; the United States should only bring a claim under the 1906 treaty with Mexico. Colorado urged that reclamation law claims, “are based on contracts among the Bureau of Reclamation, Elephant Butte District, and El Paso District for water delivery from the Rio Grande Project and are nearly identical to Texas’ claims and more properly resolved under the rubric of the Compact by the States.” Colo. Exception brief at 5. Taken together, these issues put squarely before the Court the question of what claims for relief the United States can assert against a state in an existing interstate compact dispute.

At argument on January 8, 2018, the United States acknowledged, “In its complaint, the United States did not distinguish between claims brought pursuant to the compact and claims brought pursuant to other laws.” Thus, the type of relief sought by the United States did not differ based on what laws gave it a cause of action. Whereas, claims under reclamation law are traditionally against individual water users, the United States indicated that its interest in pursuing a claim under the Rio Grande Compact originated from a concern that it might need a claim based on a compact in order to bring it against a state. The United States went on to state:

The reason why New Mexico is a proper defendant against such claims is because of the compact, because the compact has bound New Mexico to protect the Project and to allow the United States to release water in—in order to—to meet its contract obligations and its treaty obligations to Mexico.

Conversely, Colorado expressed concern that the United States might be allowed to assert claims under a compact to which it was not a party, suggesting that:

Colorado is a party to nine interstate compacts. Many of them apportion water on rivers with significant federal projects. Several of those compacts express—expressly mention those projects in the compacts’ texts. Yet in a century of Colorado negotiating, administering, and litigating compacts like those, including those, the United States has never asserted, and this Court has never recognized, the right of the United States to bring an independent action under a compact.

Since Congress had approved the Rio Grande Compact, the United States had already weighed in on the mechanism for apportionment between the states. Further, “resolving the Compact dispute first would allow the United States and the other contracting parties, Elephant Butte District and El Paso District, to then resolve their water delivery disputes within the parameters of the Rio Grande Compact’s apportionment.” Colo. Exception brief at 9.

The Supreme Court issued an order in which it allowed the United States to proceed with its claim stated under the Rio Grande Compact. State of Texas v. State of New Mexico and State of Colorado, No. 141 (S. Ct.) (On Exceptions to Report of Special Master (Mar. 5, 2018)). However, it did not do so simply because the Compact is a federal law or the United States has federal interests in the area. The Court explained that it allowed the complaint to proceed for four reasons that limit the impact of its ruling. First, the Compact is intertwined with the Reclamation project. Second, New Mexico conceded in briefing and argument that the United States plays an integral role in the Compact dispute. Third, a breach of the Rio Grande Compact could affect the 1906 Treaty with Mexico. Finally, the United States asserted claims that are the same as those already brought by Texas. The Court further cautioned that its holding does not establish a standard for the United States’ role in either other compact cases or future disputes of the Rio Grande Compact. Therefore, while the United States may proceed as a plaintiff against New Mexico in this case, the Court’s ruling does not establish precedent or a standard of law applicable to other original actions.

The Court has since referred this case to a new special master for further proceedings. The parties to the suit—Texas, New Mexico, Colorado, and the United States—are preparing to proceed with a trial before the special master.

Chad M. Wallace

Chad Wallace is a senior assistant attorney general in the Federal and Interstate Water Unit of the Colorado Department of Law. This article does not provide legal advice or the position of the State of Colorado.