Texas v. New Mexico and Colorado

Issues

Can the Supreme Court resolve Texas, New Mexico, and Colorado’s dispute over the Rio Grande without the consent of the United States federal government?

Oral argument:

March 20, 2024

Court below:

Original Jurisdiction

This case asks the Supreme Court to resolve a dispute between Texas, New Mexico, and Colorado regarding apportionment of the Rio Grande’s waters without the consent of the United States. Petitioner Texas and Respondents New Mexico and Colorado do not take any exceptions to the Special Master’s Third Interim Report, which purports to resolve the dispute by imposing a water monitoring system through a consent decree. The United States argues that the proposed consent decree cannot be implemented without its consent, that the proposed decree should be rejected because it unlawfully imposes obligations on the United States, and because the consent decree would run counter to the Rio Grande Compact. The outcome of this case could have an impact on water management in the Southwestern United States and may also impact the relationship between states and the federal government.

Questions as Framed for the Court by the Parties

Whether the court should deny the motion by Texas, New Mexico, and Colorado for entry of a proposed consent decree that would resolve this dispute over the United States’ claim as intervenors that New Mexico violated the Rio Grande Compact without the United States’ consent.

Facts

The Rio Grande has its headwaters in Colorado, flows through New Mexico and Texas, and forms part of the border between the United States and Mexico. First Interim Report of the Special Master, Texas v. New Mexico and Colorado, at 32-33. In the late 19^th and early 20^th centuries, a series of disputes between Texas, New Mexico, Colorado, the United States, and Mexico over apportionment of the Rio Grande water necessitated a negotiated settlement. Id. at 31-48. In the leadup to the settlement, Congress approved the construction of a dam on the Rio Grande under the Rio Grande Reclamation Project (the “Project”) and the 1902 Reclamation Act. Id. at 100-101. The dam created the Elephant Butte Reservoir, which holds some of the Rio Grande water. Id. at 98-100. On March 18, 1938, the Commissioners of the Rio Grande Compact Commission signed the Rio Grande Compact (the “Compact”), which provided for equitable apportionment of the waters of the Rio Grande among Colorado, New Mexico, and Texas. Id. at 156-57. Apportionment is based on schedules established in the Compact and in the preparation of the Compact in the early 20^th century. Id. at 159-62.

Among other things, the Compact requires New Mexico to deliver water to the Elephant Butte Reservoir, which is then distributed for agricultural use in New Mexico and Texas. Id. at 160-62. The Compact also prohibits Colorado and New Mexico from interfering with the quality of the water provided downstream. Id. at 164.

In 2014, Texas sued New Mexico and Colorado under the Supreme Court’s original jurisdiction as specified in Article III of the Constitution and Title 28, Section 1251(a) of the United States Code. Motion for Leave to File Complaint, Complaint, Texas v. New Mexico and Colorado, at 1. The Supreme Court appointed a Special Master to make findings and recommendations. Order Appointing Gregory Grimsal, Esq., at 1. In 2017, the Special Master recommended that the Supreme Court proceed with the case. First Interim Report of the Special Master, Texas v. New Mexico and Colorado, at D-1-D-2. In 2018, the Supreme Court allowed the case to proceed to the merits, overruling New Mexico and Colorado’s objections. Texas v. New Mexico and Colorado, 583 U.S. 407, 407 (2018). On December 3, 2019, the Special Master submitted a Second Interim Report to the Supreme Court. Second Interim Report of the Special Master, Texas v. New Mexico and Colorado at 1. On January 13, 2020, the Supreme Court adopted the Special Master’s recommendations in the Second Interim Report and denied intervention by the estate of Nathan Boyd. Texas v. New Mexico and Colorado.

On July 3, 2023, the Special Master issued a Third Interim Report. Third Interim Report of the Special Master at 1. While Texas, New Mexico, and Colorado have no exceptions to the Third Interim Report, the United States filed an exception with the Supreme Court. Exception of the United States at II. The United States argues that it must consent for any resolution to the dispute to be effective, that the proposed resolution imposes additional obligations on it, and that the proposed resolution violates the Compact. Exception of the United States at 17, 29, 43.

Analysis

CLAIMS OF NONCONSENTING INTERVENORS

The United States argues that the proposed consent decree would infringe on its interests as a nonconsenting intervenor. Brief for Plaintiff, The United States at 17–18. The United States cites the Supreme Court’s decision in Firefighters v. City of Cleveland, which held that a consent decree is invalid when it would “dispose of the valid claims of nonconsenting intervenors.” Id. at 18–19. The United States explains that the Supreme Court recognized the United States’ valid claims when it permitted the United States to intervene in 2018. Id. at 19–20. The United States also argues that the States’ memoranda and the Special Master’s report acknowledge that the United States has valid claims in this dispute. Id. at 20–21. The United States maintains that the consent decree fails to provide the United States’ specific requested relief against New Mexico with regard to duty, breach, and remedy under the Rio Grande Compact. Id. at 21–23. The United States contends that the consent decree would infringe on four interests that the Supreme Court recognized in 2018: the United States’ contractual obligations to downstream irrigation districts; the United States’ role in administering the terms of the Compact; the United States’ treaty obligations to Mexico; and the United States’ insistence on relief which Texas no longer seeks. Id. at 25–28. The United States maintains that its contract and treaty interests are “distinctively federal,” not “merely derivative of Texas’s [claims].” Id. at 24–25. The United States reasons, therefore, that the proposed consent decree is a “consent decree[] in name only” because it ignores the United States’ claims. Sur-Reply Brief for Petitioner, The United States at 21–22.

Texas, New Mexico, and Colorado contend that the United States lacks a “distinctively federal interest” that would be affected by the consent decree. Brief for Plaintiff and Respondents, Texas, New Mexico, and Colorado at 28–29. Texas, New Mexico, and Colorado note that the Compact does not apportion any part of the waters it governs to the United States and that, to the extent that the United States accuses New Mexico of interference, the consent decree would provide the standards necessary to calculate whether New Mexico has materially interfered. Id. at 29–31. Texas, New Mexico, and Colorado also argue that the United States has never properly raised a claim to a particular quantity of water, so it cannot assert such a claim now. Id. at 36–37. Texas, New Mexico, and Colorado submit that the consent decree would fulfill the United States’ contractual obligations and avoid implicating the United States’ treaty obligations. Id. at 38–40. Texas, New Mexico, and Colorado contend that the United States’ request for relief would improperly expand the dispute because Texas is no longer pursuing parallel relief. Id. at 41–42. Texas, New Mexico, and Colorado also argue that the Supreme Court’s original jurisdiction is an improper forum to pursue any of the United States’ remaining claims, which can be resolved in other courts. Id. at 43–45. Texas, New Mexico, and Colorado contend that the Supreme Court should uphold the consent decree because consent decrees are an ideal mechanism to solve interstate water rights disputes. Id. at 54–55.

BURDENS ON THIRD PARTIES

The United States argues that the consent decree would “impose a host of obligations on the United States without the United States’ consent,” so the decree is invalid independent from the United States’ status as intervenor. Brief for Plaintiff, The United States at 29. The United States cites Firefighters for the proposition that, as a “fundamental principl[e] of contract law,” parties can only agree to impose obligations on themselves, not on third parties. Id. at 29–30. The United States explains that the consent decree would impose new calculation, water transfer, and operational duties on the United States and that those duties could expand based on decisions by the states or the Rio Grande Compact Commission. Id. at 30–34. The United States notes that the States and the Special Master recognize that the consent decree imposes obligations on the United States. Id. at 34. The United States submits that the Supreme Court’s decisions in Hinderlider v. La Plata River & Cherry Creek Ditch Co. and California v. United States are not relevant to the present dispute because neither of those cases concerned a consent decree that imposed obligations on a nonconsenting third party. Id. at 34–38. The United States maintains that these new obligations are neither “manifestations [of] existing obligation[s]” nor de minimis duties and adds that even de minimis obligations on third parties are illegitimate. Id. at 38–43.

Texas, New Mexico, and Colorado argue that, under Hinderlider and California v. United States, the Rio Grande Compact binds all water claimants and the United States must defer to its apportionment. Joint Brief for Plaintiff and Respondents, Texas, New Mexico, and Colorado at 31–35. Texas, New Mexico, and Colorado also contend that, under Firefighters, the United States must demonstrate that the consent decree would create “a new obligation on a nonconsenting party” rather than “indirectly affect[ing] preexisting obligations.” Id. at 45–47. Texas, New Mexico, and Colorado submit that the consent decree would not create a new obligation because the United States had preexisting duties to comply with the Compact; to calculate and transfer water apportionments per the Compact; and to operate El Paso Gage “under the treaty with Mexico.” Id. at 47–52. Texas, New Mexico, and Colorado add that the Supreme Court’s original jurisdiction permits the Court to grant equitable remedies such as de minimis obligations and that the United States’ invocation of sovereign immunity is both inequitable and procedurally barred by the United States’ own intervention. Id. at 52–54.

MAINTAINING THE RIO GRANDE COMPACT

The United States argues that the consent decree would violate the Rio Grande Compact itself. Brief for Plaintiff, The United States at 43. The United States cites the Supreme Court’s decision in Kansas v. Nebraska for the proposition that “congressionally approved interstate compacts” like the Rio Grande Compact can only be undone by Congress. Id. The United States contends that the consent decree would change New Mexico’s obligation under the Compact, the United States’ role in the Compact, and permit new interference with the water supply that the Compact did not contemplate. Id. at 43–47.

Texas, New Mexico, and Colorado contend that the consent decree would be consistent with the Rio Grande Compact. Joint Brief for Plaintiff and Respondents, Texas, New Mexico, and Colorado at 15. Texas, New Mexico, and Colorado cite the Supreme Court’s decision in New Hampshire v. Maine for the proposition that the Supreme Court upholds interstate agreements when the governing language is ambiguous and the States’ proposed decree is not “wholly contrary to the relevant evidence.” Id. at 16–17. Texas, New Mexico, and Colorado argue that the Compact did not specify a critical metric, the “baseline operating condition,” and that the consent decree quantifies the baseline in a manner consistent with the Compact’s terms and the Supreme Court’s 2018 decision in this case. Id. at 17–19. Texas, New Mexico, and Colorado further argue that each of the United States’ allegations of inconsistency between the consent decree and the Compact is incorrect. Id. at 20–28.

Discussion

THREATENED WATER SUPPLY IN THE AMERICAN SOUTHWEST

The United States argues that New Mexico’s water usage is excessive. Exception of the United States at 22. The United States urges that it is inappropriate for New Mexico to measure its obligations according to water usage from 1951-1978 because groundwater pumping “exploded during that period,” so New Mexico’s allocation would be significantly higher than originally contemplated. Id. Because the United States seeks relief that runs counter to New Mexico’s position, it emphasizes that New Mexico’s proposed allocation is inappropriate. Id. at 23.

The Albuquerque Bernalillo County Water Utility Authority and City of Las Cruces, in support of Texas, New Mexico, and Colorado, argue that the United States’ position jeopardizes the water supply in New Mexico. Brief of Amici Curiae Albuquerque Bernalillo County Water Utility Authority and City of Las Cruces in support of the states at 14. They assert that the United States seeks to define New Mexico’s water use according to 1938 levels, when Las Cruces was a city of 8,000 residents instead of 125,000. Id. at 15-16; 46. Albuquerque Bernalillo County Water Utility Authority and the City of Las Cruces maintain that such a calculation would have a negative impact on the city and would require the city to sacrifice more than its fair share of Rio Grande water without imposing the same requirement on Texas. Id. at 16-19.

STATE-FEDERAL BALANCE OF POWER

The United States argues that the proposed consent decree would “turn the United States into an agent of the states.” Exception of the United States at 44. The United States emphasizes that the current water management regime relies on the United States to apportion the water according to the appropriate entitlements downstream of Elephant Butte. Id. at 45. The United States urges that the proposed consent decree would allow the states to make modifications to the apportionments—which the United States would then be obligated to facilitate. Id. at 45.

Twenty-three states in support of Texas, New Mexico, and Colorado, argue that the proposed consent decree adequately protects the federal-state balance struck in the Compact. Brief of Amici Curiae State of Utah and 22 Other States in Support of the states at 4. The twenty-three states argue that the ability to form interstate agreements is a fundamental element of state sovereignty as recognized in Supreme Court precedent and Article I, Section 10 of the Constitution. Id. The twenty-three states further argue that the United States has no role in policing a states’ water commitments to other states even under the Compact. Id. at 6. The twenty-three states argue that doing so oversteps federal bounds and upsets the federal-state balance that was crafted in the signing of the Compact. Id. at 6-8.

ORIGINAL JURISDICTION OVER THE PROPOSED SETTLEMENT

The United States argues that the proposed consent decree does not impose de minimis requirements on the United States and is thus inappropriate for resolution under the Supreme Court’s original jurisdiction. Exception of the United States at 40. The United States urges that it is not a “normal litigant” because it has sovereign immunity, which it has not waived in this case. Id. at 40. Further, the United States argues that the fact of a negotiated settlement does not justify disposal of the case because the proposed consent decree would impose additional requirements on the federal government with respect to the Rio Grande project. Id. at 41.

New Mexico State University, in support of Texas, New Mexico, and Colorado, argues that the United States’ exception is pretextual, and that the federal government is trying to avoid adjudication of its rights in state court. Brief of Amicus Curiae New Mexico State University in support of the states at 14. New Mexico State University asserts that the United States’ claim is fundamentally a claim of a superior water right against New Mexico, a quintessentially state law question. Id. at 15. New Mexico State University further argues that federal district and circuit courts have handled such matters in the past and are well-positioned to do so moving forward. Id. at 16-17.