Albuquerque Journal

Supreme Court hears NM-Texas water dispute

New Mexico argues feds have no grounds to intervene

- BY MICHAEL COLEMAN

WASHINGTON — The U.S. Supreme Court heard arguments in a long-running dispute between Texas and New Mexico over Rio Grande water rights Monday, with New Mexico’s attorney asserting that the federal government should not be allowed to intervene.

Monday’s arguments centered on whether the federal government should be involved in the legal dispute between Texas and New Mexico to help ensure that federal water obligation­s — including an internatio­nal agreement with Mexico — are fulfilled.

The nine-member high court on Monday peppered lawyers from New Mexico, Texas, Colorado (another party to the Texas lawsuit) and the federal government’s attorney with questions about a nearly 80-year-old water compact that governs the distributi­on of water among the states. New Mexico had filed a motion to dismiss Texas’ lawsuit, but in July a socalled special master appointed by the Supreme Court to analyze the case recommende­d the court reject that motion and allow the case to proceed.

Ann O’Connell, assistant to the solicitor general at the U.S. Department of Justice, argued Monday that the special master failed to recognize the federal government’s interest under the water compact, especially as it related to U.S. obligation­s under treaties with Mexico to deliver water.

“What our complaint does … is set forth what the United States’ interests are and then tell the court how we think it can shape injunctive relief against New Mexico to protect those interests,” O’Donnell said during the arguments.

Marcus J. Rael Jr., a private attor-

ney working under contract for the New Mexico Attorney General’s Office, represente­d the state before the court on Monday. Rael told the justices that under his view of the law, the federal government can pursue legal remedies under an earlier treaty but not under the 1939 compact apportioni­ng the water among Texas, New Mexico and Colorado.

“New Mexico is arguing that the United States is a necessary party, but their claims arise under the Reclamatio­n Act of 1902 and not under the compact,” Rael said. “And so the special master was correct in his recommenda­tion that the United States should participat­e in order to enforce its treaty obligation­s, but it does so under the treaty, which it can bring in this litigation. So they are a necessary party … they’re just not allowed to bring compact claims, in our opinion.”

The oral arguments Monday morning marked the Supreme Court’s first this year, and justices quickly jumped into intricate details of the case.

Justice Steven Breyer was perhaps most direct in signaling his view of the question about federal interventi­on in the case.

“It seemed to me quite simple,” Breyer told Rael during questionin­g. “The Constituti­on foresees that they (the federal government) can intervene where there’s an interest. They have several interests. End of case, unless there is something that I don’t see.”

Justice Elena Kagan also noted that the U.S. government has a significan­t interest in the case.

“The United States has important interests here. Part of them are internatio­nal, as with Mexico, and part of them are domestic,” Kagan said.

Texas took its case against New Mexico to the Supreme Court in 2013, asking that the state stop pumping groundwate­r between Elephant Butte and the southern border so that more of the river could flow south from Elephant Butte Dam near Truth or Consequenc­es to farmers and residents in El Paso. Despite the pumping, New Mexico argues its delivery obligation­s to Texas are being met.

All sides say the stakes are high, given uncertaint­y about the sustainabi­lity of water supplies throughout the Rio Grande Valley. Farmers, water policy experts, municipal officials and others have been working behind the scenes to build a framework for a possible settlement.

In dry years when there’s not enough water in the river, chile farmers and pecan growers in southern New Mexico are forced to rely on wells to keep their crops and trees alive. Texas officials complain that the New Mexico farmers are tapping the shallow aquifer that would otherwise drain back into the river and flow to Texas.

New Mexico Attorney General Hector Balderas attended the hearing with Sen. Tom Udall, a New Mexico Democrat who served as New Mexico attorney general in the 1990s.

“Attorney General Hector Balderas was pleased the Supreme Court seemed to balance interests throughout the hearing,” said Balderas’ spokesman, James Hallinan. “New Mexico is seeking to protect state sovereignt­y and prevent the vast expansion of the United States’ power over compacts among sovereign states.”

Texas Attorney General Ken Paxton said afterward that it was a good day in court for Texas.

“New Mexico’s illegal actions in taking Rio Grande Project water intended for use in Texas violates the Rio Grande Compact, depriving our state of the water it is legally entitled,” Paxton said. “The Rio Grande plays an integral part in the water supply for Texas’ border regions and farmers, and the Supreme Court should rule in favor of protecting Texas’ rights.”

Reed Benson, a University of New Mexico professor specializi­ng in water law, said the Supreme Court’s task in deciding the U.S. government’s role is “very legalistic — very much a technical reading of what is and is not in the compact.”

“I actually have thought that New Mexico’s chances in front of the nine justices may be a little bit better than some people thought,” Benson said. “Some of those justices may be persuaded by the plain text argument — that New Mexico’s obligation­s are measured at Elephant Butte and once New Mexico delivers to Elephant Butte that it has met its obligation and has met its compliance. The argument of Texas and the feds is that New Mexico has obligation­s beyond that that aren’t directly stated in the compact.”

Udall said the outcome of the case “will impact the management and division of water use by farmers and communitie­s in all the Rio Grande Compact states in the coming decades.”

 ?? ROBERTO E. ROSALES/JOURNAL ?? The Rio Grande flows along the border between the United States and Mexico, with Ciudad Juárez on the left and Texas on the right. The U.S. Supreme Court heard arguments Monday in a water dispute between New Mexico and Texas.
ROBERTO E. ROSALES/JOURNAL The Rio Grande flows along the border between the United States and Mexico, with Ciudad Juárez on the left and Texas on the right. The U.S. Supreme Court heard arguments Monday in a water dispute between New Mexico and Texas.
 ?? ADOLPHE PIERRE-LOUIS/JOURNAL ?? The Rio Grande flows near Alameda in Albuquerqu­e, with the Sandia Mountains in the distance. Water from the river is at the center of a dispute between New Mexico and Texas.
ADOLPHE PIERRE-LOUIS/JOURNAL The Rio Grande flows near Alameda in Albuquerqu­e, with the Sandia Mountains in the distance. Water from the river is at the center of a dispute between New Mexico and Texas.
 ?? DEAN HANSON/JOURNAL ?? Texas claims that New Mexico farmers and pecan growers illegally pump groundwate­r from below Elephant Butte Dam. New Mexico claims that its water obligation­s to Texas are measured at the dam.
DEAN HANSON/JOURNAL Texas claims that New Mexico farmers and pecan growers illegally pump groundwate­r from below Elephant Butte Dam. New Mexico claims that its water obligation­s to Texas are measured at the dam.

Newspapers in English

Newspapers from United States