Texas v. New Mexico

THE RIVER MASTER’S DECISION TO RETROACTIVELY AWARD DELIVERY CREDITS

Texas argues that the River Master erred in retroactively granting delivery credits to New Mexico. Texas Motion for Review of River Master’s Final Determination (“Texas Motion for Review”) at 14. Texas first contends that New Mexico’s motion is untimely because it did not follow one of the two limited procedures for challenging the River Master’s decision: (1) submitting written objections within 30 days of the River Master’s preliminary report, or (2) seeking the Supreme Court’s review of the final report within 30 days of its adoption. Id. Since New Mexico pursued neither of these avenues, Texas argues that New Mexico forfeited its right to challenge the absence of evaporation credits in the 2014 and 2015 final determinations. Id. at 14–15. Texas further asserts that the River Master was not authorized under the Amended Decree, the Compact, or the River Master Manual­­—which outlines the procedures for making the calculations—to retroactively modify past reports. Id. at 15–16. Specifically, Texas argues that the Amended Decree contemplates only one mechanism for retroactive modification: an agreement by the parties. Id. at 16. While New Mexico can modify the River Master Manual through a unilateral motion, Texas argues that the Amended Decree requires that such modification be applied only prospectively. Id. Since the parties did not agree to retroactive modification, and since New Mexico’s unilateral motion can only apply prospectively, Texas claims that the River Master erred in permitting a retroactive modification. Id. at 16–17.

Texas additionally contends that the River Master exceeded his authority in applying equitable tolling to excuse New Mexico’s failure to timely object. Id. at 20. Texas argues that equitable tolling is not available in this case because the deadlines in the Amended Decree are jurisdictional, and equitable tolling cannot be applied to jurisdictional deadlines. Id. at 20–21. Even if equitable tolling were available, Texas argues that New Mexico failed to meet the doctrine’s two elements: (1) the litigant did not pursue his rights diligently, and (2) some extraordinary circumstance did not prevent timely filing. Id. at 22. While New Mexico may have believed it would come to a resolution with Texas, Texas argues that New Mexico should have preserved its right to review if the parties ultimately failed to reach an agreement—which is what happened in this case. Id. at 23–25. Because New Mexico failed to seek review until 2018 and no exceptional obstacle prevented it from doing so, Texas maintains that equitable tolling was impermissibly applied in this case. Id. at 26.

In contrast, New Mexico asserts that the River Master permissibly granted a one-time credit for evaporative losses to New Mexico. New Mexico’s Response to Texas’s Motion for Review of River Master’s Final Determination (“New Mexico Response”) at 18. New Mexico first argues that New Mexico’s motion is timely because the Compact contemplates accounting modifications based on a three-year period; thus, New Mexico’s 2017 motion was timely because 2017 marked the last year of the three-year period. Id. at 26–27. New Mexico further claims that the River Master did not make retroactive modifications to the River Master Manual, which is prohibited by the Amended Decree, but rather granted a “one-time credit” to New Mexico. Id. at 32. New Mexico contends that the River Master can grant a one-time credit because he is authorized to adjust deadlines and adopt procedures necessary to address “novel accounting issues'' in order to fulfill his duties. Id. at 21–22. New Mexico argues that it was justified in relying on the River Master’s one-time correction because both states jointly sought guidance from him regarding the proper procedure for accounting adjustments and neither challenged the updated procedure at the time. Id. at 25–29. New Mexico additionally asserts that this one-time correction should be applied retroactively because at the time of the correction both states understood it to be applied retroactively—Texas even sought its own retroactive modification in 2018. Id. at 29.

New Mexico further argues that the River Master correctly applied the doctrine of equitable tolling. Id. at 29. New Mexico emphasizes the existence of a presumption in the Supreme Court that equitable tolling be applied in cases between states, which can only be rebutted if Texas can demonstrate that Congress “made the time bar at issue jurisdictional.” Id. at 30–31. Therefore, New Mexico contends that the deadlines in the Amended Decree are not jurisdictional because Congress did not explicitly designate them as so. Id. at 31. New Mexico also argues that this case presents the perfect example of when equitable tolling should be applied—where one party (New Mexico) relied on the conduct of another (Texas) in refraining from filing an action by the deadline. Id. at 31–32. New Mexico claims that it only missed the deadlines in the Amended Decree because Texas reversed its stance: Texas agreed with the River Master’s updated procedure and worked with New Mexico to resolve the accounting issue up until 2018. Id.

THE PURPOSE OF STORING WATER IN TEXAS

Texas argues that Article XII of the Compact, which charges evaporative loss to a state when the United States is storing water “for use” in that state, is inapplicable to the facts of this case. Texas Motion for Review at 27. Texas contends that Article XII does not apply because the Bureau impounded flood water for public safety related to flood control, not for use in Texas. Id. at 28. Texas points to a July 2015 email between the parties where the Bureau warned Texas that it would begin releasing flood water in August 2015—which is when the Bureau’s flood-control authority expired Id. Because the Bureau released the flood water directly after its flood-control authority expired, Texas argues that the timing “confirms that the Bureau was not holding the water for Texas’s use, but instead was storing the water for flood control.” Id. at 29. Texas further claims that Article XII is inapplicable because it only pertains to the consumptive use of water for a federal project in the state. Id. at 30. Since no equivalent federal projects existed at the time of the 2014 flooding, such as a contract related to storage of the water, Texas maintains that Article XII cannot form the basis for awarding evaporative loss credit to New Mexico. Id. at 30–31. Texas additionally contends that Article XII’s application would inappropriately suggest that the Bureau acted illegally—since no storage contract existed, the Bureau was not legally authorized to store water for Texas if it was not doing so pursuant to its flood-control authority. Id.

New Mexico counters that Article XII is applicable because the Bureau impounded water for use in Texas, not for public safety reasons. New Mexico Response at 33–35. While the initial storage of the water may have been rooted in public safety concerns, New Mexico argues that its storage was “primarily a matter of comity.” Id. at 35. Specifically, New Mexico contends that it only continued to store the water past the public safety concern because Texas explicitly requested it to do so. Id. In support of its argument, New Mexico points to the River Master’s finding that public safety concerns had subsided by March 1, 2015, and therefore, the subsequent four-month storage was for Texas’s later use. Id. Regardless, New Mexico asserts that Texas cannot “substitute its interpretation of the evidence for that of the [River Master],” and therefore, the River Master’s finding that Texas understood the stored water to be for its own use should be given controlling weight. Id. New Mexico further contends that the Bureau acted reasonably in cooperating with Texas and offering to store the water until Texas could utilize it or until a contract was negotiated—hardly an indication of illegal behavior. Id. at 36–37.