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David and Goliath: Texas v. New Mexico. Can a Court Create Water?

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The Complaint On January 8, 2013, the State of Texas filed a motion with the U.S. Supreme Court requesting leave to file a complaint against the State of New Mexico. Along with the motion, Texas also filed a memorandum in support of the motion and a complaint which they seek to file if the High Court grants the motion. Under Article III, Section 2 Clause 2 of the U.S. Constitution, if the Motion is granted, it would automatically give the U.S. Supreme Court original and exclusive jurisdiction over the suit.

Click on map for much larger detail view.

In some sense this resembles a replay of the issues dealt with by the US 10th Circuit Court in 2002.  In this case it is Texas seeking an action with enforcement and in the prior case it was the U.S. Dept of Justice seeking simply clarification of its rights (Quiet Title Suit). The U.S. 10th Circuit Court punted the case back to the NM District Court. Punting has been the prevalent action taken by Federal Courts in the long history of the disputes revolving around the Lower Rio Grande  (See Map which covers approximately 250 miles of the Rio Grande.)

Will the U.S. Supreme Court essentially punt (the $400 an hour term for this is “remand”) this case somewhere rather than assume jurisdiction? That remains to be seen. Rather than attempt to forecast that outcome, it is easier to simply wait and see what they do. One factor has changed since 2002 namely eleven years have passed and we are now in a drought so punting might not be as appealing as trying to resolve the matter.

There are many points to the complaint and to me they boil down to two legal frameworks that apply to the Rio Grande. One is called the Rio Grande Project which was authorized in 1905 and commenced operations in 1916. It includes a storage Reservoir called Elephant Butte Reservoir as well as Caballo Reservoir which was added later and two irrigation districts one in Southern New Mexico called the Elephant Butte Irrigation District (EBID) and another in El Paso County Texas called El Paso County Water Improvement District #1 (EPCWID#1).

In a complicated way another Texas County, Hudspeth County, benefits from this project by receiving return flows from the Project. And by a separate Treaty in 1906, in response to conflicts with our neighbor to the south which also historically has used Rio Grande water for irrigation, Mexico benefits up to 60,000 acre feet of water a year.

Lately there have been issues raised about the timing of requests by Mexico for delivery of their water which relates partially to the inefficiency of the delivery mechanism. The Project was not designed for delivery on demand but for delivery on a fairly well defined schedule with coordination of deliveries to Mexico with deliveries to Texas reducing conveyance losses.

North of this project, the river is controlled by the Rio Grande Compact an agreement among Colorado, New Mexico and Texas. The Compact is essentially an agreement to apportion the waters of the Rio Grande among the three states. It was ratified by the Legislatures of the three participating States and then the U.S Congress in 1939. One complication of that agreement is that the boundary line between New Mexico and Texas with respect to apportionment is not at the border between New Mexico and Texas but the spillway of the Elephant Butte Reservoir. Thus the water allotment for EBID which is located in New Mexico is part of the apportionment of the Rio Grande to Texas or what is called for clarification “Compact Texas”.  As you can imagine, this creates problems including attitude problems within New Mexico where deliveries of water to the Rio Grande Project which includes as the major beneficiary EBID are often viewed as “sending water to Texas.”  Terminology has power and the terminology in this case has been both confusing and counterproductive.

The Rio Grande Project is not explicitly mentioned in the Rio Grande Compact agreement but clearly the needs of the Rio Grande Project were the intended use of the Texas apportionment of the Rio Grande River and this is supported by documents related to the negotiation of the Rio Grande Compact which itself went through a number of iterations. Texas basically has a number of complaints which I have condensed into two one more clearly explained than the other. One complaint is that New Mexico has:

A. taken unspecified actions to increase the diversions to EBID, authorized many wells that reduce the amount of water in the river and has attempted to have that groundwater assigned a higher priority than surface water and has

B. gone into Federal Court and attempted to interfere with a water sharing agreement freely negotiated between the two irrigation districts one in Texas and the other in New Mexico.

Another complaint is that New Mexico’s actions have reduced the apportionment of the surface waters of the Rio Grande to Texas (which as already mentioned includes EBID in New Mexico). This claim of impacting equitable apportionment by the Rio Grande Compact is a bit shaky in that New Mexico is not currently in a deficit position (although this may soon change) re the rules of that agreement but apparently Texas is claiming that the actions taken with respect to the Rio Grande Project cause excessive drawdowns of the water stored in Elephant Butte Reservoir and thus reduce the availability of water to the Rio Grande Project which would appear to impact both irrigation districts not necessarily equally.

One of the strange aspects to this situation is that in filings related to what is called adjudication (I will explain that term later) in the State District Court, New Mexico on behalf of the Office of the State Engineer in at least two responses to interrogatories has acknowledged that groundwater pumping in New Mexico and Texas has reduced the efficiency of the Rio Grande River. This is surprising given this could be interpreted as supporting the Texas complaint.

Notice that in these two “Admissions”, both New Mexico and Texas groundwater pumping are mentioned. It seems to me that given the data on groundwater pumping that is available, the fact that in general pumping in Texas is further south than pumping in New Mexico and the better quality of water in the aquifers below the Project in New Mexico as compared to Texas, that further analysis will probably complicate New Mexico’s legal position. However underground water is complex and in this case the aquifers cross state lines and international boundaries so the impacts are difficult to ascertain and detailed analysis might produce unanticipated conclusions. One might anticipate a lot of dueling hydrologists being employed by a Supreme Court appointed Special Master. The misery of the farmers is a boom to hydrologists, attorneys and experts of all sorts.

The whole concept of New Mexico taking exception to the agreement between the two Irrigation Districts is puzzling to this journalist. On the one hand some of the articles written by participants in the negotiations provide explanations which to me were not very convincing and the data on actual deliveries to the two irrigation districts (see Historical Water Distribution) does not seem to show that EPCWID#1 has not received its historical 43% of the Project Water after Mexico’s share.

Click on table for enlarged view.

But NM nevertheless acknowledges in various filings in the proceedings in the NM District Court that groundwater pumping impairs the availability of surface water to the Texas Irrigation District and even refers to hydrologic modeling studies that have been performed which confirm this. NM does not admit It, but clearly the NM Irrigation District benefits from the groundwater pumping whether or not this disadvantages the Texas Irrigation District by intercepting water that otherwise would be available to EPCWID#1. There is a lot of data available on well pumping in New Mexico and Texas. So the question of what is the impact on EPCWID#1 probably can be answered and may be exactly as agreed between EBID and EPCWID#1 or may be different as both parties had additional reasons for reaching an agreement. But the question remains why does the State of New Mexico have an interest in whether or not EBID negotiated a good deal for themselves? In what sense is this the business of the State of New Mexico?

One reason might be concern that the arrangement is unsustainable (the aquifer will go dry or salty) and eventually the State of New Mexico will basically have to bail out EBID and the farmers and the communities. Another similar argument is that if EBID negotiated a bad deal, tax revenues to the State of New Mexico are reduced. But these seem to be second order considerations and may pale in comparison to the impact of this litigation if it goes forward.

An additional complication which I attempt to address later but not comprehensibly is that there are disputes among many of the parties that are in some sense separate from the Texas Complaint but in some cases parallel to that complaint. I have not attempted to describe all the various complaints filed by various parties against each other in the New Mexico District Court. It really is a maze and to some extent that complexity and resulting frustration with the slow but accelerating pace of resolving the matters before the State Court may have motivated New Mexico and Texas to address some of these matters outside the New Mexico Court System.

Historical Documents

I am in possession of a number of these. They are not private document s but documents that are available from various archives. There are a large number of these documents and it is basically impossible to find them and read them all. One assumes that perhaps some of these documents might end up entered into evidence in this proceeding which most likely would be conducted by a “Special Master” rather than having the Justices pouring through reams of information. Some of these documents raise questions about:

A. the legitimacy of the Rio Grande Project…was it properly authorized? Does it matter?

B. the existence of prior rights illegally expunged without compensation possible related to prejudice against foreign investment in the project and a general antipathy in the US Government to Catholic settlers. Is it too late to go back and try to unwind past errors by the U.S.?

C. the exact status of the water rights of those who possessed such rights prior to the creation of the Rio Grande Project, two irrigation districts, and certain private and community organizations that existed prior to the creation of the two irrigation districts. This is already being addressed in State Court but could possible become an issue if the U.S. Supreme Court allows the Texas law suit to go forward.

D. the treaty with Mexico both the motivation for that treaty and the amount of water involved in relationship with the amount of water being put to beneficial use at the time the Treaty was negotiated.

It is not clear if any of these matters will come into the Texas law suit or have an impact. But they may. Some of these issues date back many years so there are procedural questions about their admissibility. I describe them because I see the possibility that these issues may be raised.

The River above Elephant Butte Reservoir

So far Texas has not claimed that New Mexico has not managed the river above Elephant Butte properly and Colorado has been specifically mentioned as not being culpable in this matter. It remains to be seen if Texas continues to ignore the river above Elephant Butte in that the water available to the Rio Grande Project is determined by the in-flow into Elephant Butte. The inquiry might easily be expanded to include the Rio Grande above Elephant Butte and even into Colorado notwithstanding the statement in the January 8, 2013 filing.  Additional parties could raise these issues. As an example, Mexico could file a complaint as might Hudspeth County Texas which has certain rights to Project Water under another arrangement called the Warren Act Contract.  Other water rights holders could raise this or related issues.

Rio Grande Compact

Might the terms of the Rio Grande Compact be addressed in this Law Suit? It is too soon to speculate on that. A change to the Compact in 1948 approved legally by the three Compact Commissioners one from each State was never ratified by the New Mexico Legislature or by the US Congress. I don’t know if that was necessary but it could become an issue. The wording “in perpetuity” or its equivalent is not in the Rio Grande Compact so presumably it could be changed if conditions (e.g. climate) have changed. What had been an equitable apportionment may no longer be considered equitable and may end up being changed. Is that possible? We will see.

San Juan Chama Project

There are certain provisions of the San Juan Chama Project that could be questioned. Some recipients of San Juan Chama Water are not able under the terms of their contract with the U.S. Bureau of Reclamation (BOR) to lease their contracted water at a profit but only at cost. This creates an incentive to put that water to beneficial use even if those uses are marginal in value. This may not be consistent with either conservation or public welfare two of the criteria for use of water in New Mexico.

It is important to remember that all the Western States were originally part of Mexico. So when these lands become under the control of the U.S., the development of water law and other issues related to property rights of the former citizens of Mexico occurred at approximately the same time. Many legal principles and agreements are intertwined with legal decisions made historically in litigation involving the Rio Grande in the same location as this Texas potential law suit. Whether any consideration by the U.S. Supreme Court might impact any of the existing arrangements related to Western Water remains to be seen. I would think it would be up to the Supreme Court to decide how narrowly or broadly they wanted to look into this matter. The issues raised by Texas are certainly not unique to the geography in question.

Existing Adjudication In New Mexico State District Court

“Adjudication” is the term for judicial action to determine who has the right to use water and in what quantities and what is their priority in the event that water use needs to be curtailed, which is called a “priority call”. In New Mexico and throughout Western States, surface water is owned by the States. In Western States, the right to use surface water can be obtained if not previously already appropriated and this is called a usufructuary right. It is a property right but relates to the use of water not the ownership of water molecules as in owning a bottle of water. Essentially all uses of water result in the water molecules returning to the atmosphere, an ocean, or being recycled and reused. In New Mexico, groundwater is treated much like surface water but the situation in Texas is very different for groundwater.

The Lower Rio Grande which is the focus of the requested action by Texas has never been fully adjudicated by the courts in New Mexico. Such a proceeding has however been ongoing for some time. Can that proceeding continue in parallel with a US Supreme Court having original and exclusive jurisdiction over the Texas Complaint? The U.S. Supreme Court primarily hears appeals; being the court of original and exclusive jurisdiction is unusual.

The New Mexico Adjudication addresses a number of “Stream Issues” which are Issues that impact multiple parties to the adjudication and which are critical to be being decided before it is possible to proceed further in an efficient way.

  • SS-97-101 Defining the Consumptive Irrigation Requirements/Farm delivery requirements for all crops in EBID. This has been decided and may well be a source of annoyance to Texas. Its genesis may also possible be embarrassing to New Mexico if fully examined by a court outside of the New Mexico Judicial System.
  • SS-97-102(A) concerns certain groundwater wells operated by EBID and appears to have been resolved in favor of EBID but with certain restrictions. The “ B” part of this adjudication would address groundwater that was not related to the Rio Grande Project i.e. ground water flowing in underground from other sources. As far as I know no one has filed claims for such water. So perhaps this should be considered as having been resolved.
  • SS-97-103 relates to the impact, transferability, and other issues regarding Domestic Wells. This has been tabled by the NM District Court but may not be ignored by Texas in their legal action. The legality of the New Mexico Domestic Well Statute is being challenged within the New Mexico Court System.
  • SS-97-104 relates to the rights the US has in the Project. This has been very confusing because neither the attorneys nor the judge appear to be clear as to whether this issue has to do with ownership or management rights. It has become contentious recently because the US wants Projects Rights to include groundwater. So far the court has ruled against the US and by the US we are really talking about the Bureau of Reclamation (BOR). But Texas is likely to have a similar perspective to the Bureau of Reclamation on this issue. So might others.
  • Some call it Global Stream Issue SS-97-105 but it is not labeled as such by the New Mexico District Court but as an expedited adjudication of the rights of the Estate of Nathan Boyd who was a key participant and the ultimate owner of a private company that was building a predecessor dam. This company, the Rio Grande Dam & Irrigation Company, ultimately was unable to complete its work under circumstances that have been addressed by many courts over a long period of time and which involved actions by the U.S. Government that some contend were very inappropriate. This claim was dismissed by the NM District Court on technical grounds and is now on Appeal to the NM Appeals Court. This action is additionally significant because Scott Boyd who is the executor of that estate may have the ability to attempt to move his case back into the Federal Court System where it originated, This has been a confounding situation in the adjudication in the New Mexico Third District Court even before the Texas action and now has the potential for adding even more confusion to the Texas situation. The implications of Scott Boyd prevailing are complex and possibly disruptive to the current entities responsible for the Rio Grande Project. Thus if the prospects for Scott Boyd prevailing are perceived as increasing, there may be an attempt to acquire the Nathan Boyd Estate or in some other way reduce this complication. This may be more difficult now because of the possible tie in between the legal action of Scott Boyd and the following legal action.
  • Global Stream Issue SS-97-106. Recently some of the claimants of water rights that predate the application of the Bureau of Reclamation in 1906 relative to the Rio Grande Project, have petitioned the New Mexico District Court to set the adjudication of their rights as a Stream Issue. We do not know if the Court will accept this petition but the Judge has set a schedule for those who support or oppose this proposal to respond and for responses to this first set of responses; and presumably then a hearing will be held to hear the arguments for and against establishing this as a stream issue. The proponents argue that it is not possible to determine what rights the US Government has until the water and possibly storage rights prior to the construction of the Project have been determined. Part of the argument of these Pre-1906 Claimants it seems relates to a commingling of their rights, especially the appropriate priority date of their rights, with the activities of the Rio Grande Dam & Irrigation Company.

So far not raised is the question of jurisdiction between the US Supreme Court and the NM District Court. The U.S. Supreme Court clearly has jurisdiction over disputes between New Mexico and Texas. New Mexico clearly has jurisdiction over the adjudication of the water rights of New Mexico and also normally the Federal Government waives its sovereign immunity based on what is called the McCarran Amendment.  However, the conclusion previously reached by the U.S. 10th Circuit Court that the Lower Rio Grande represents a suitably comprehensive segment of the Rio Grande to avoid an exception to the McCarran Amendment possibly could be reconsidered by the U.S. Supreme Court with significant implications.

The rights of the descendants of the farmers who were farming prior to 1906 were always intended to be adjudicated by the NM District Court. That is standard procedure for everyone’s rights to be adjudicated. Defining that process as a stream issue is based on the presumption that such a determination of their right would have a significant impact on the rights of others including the Federal Government.

There is a question as to whether or not the US in its role of defending the interests of the U.S. Bureau of Reclamation or the U.S. Supreme Court in its role of being the Court of initial and exclusive jurisdiction with respect to the Texas action, if it decides to allow that to go forward, will conclude that SS-97-104 or SS-97-106 (if it is accepted as a separate stream issue) should be allowed to proceed in parallel with the U.S. Supreme Court Case or should instead be stayed for some period of time.  Other parties may also raise that issue. It is important to understand that the Texas Complaint has mainly to do with questions of fact rather than questions of law so one way or another local information and resources will be involved. The only question will be who is in charge of what.

Actions not specifically related to the Texas Complaint which may prove Problematical for New Mexico.

A. Failure to issue a State Water Plan Update in 2008.

B. No testable definition of Fully Appropriated (i.e. when to cut off additional appropriations of water usage).

C. Domestic Well Statute.

D. Limited efforts to augment the flow of the Rio Grande even when a court ruled that this was an affirmative duty of New Mexico to do so.

E. Withdrawing Deep Brackish Water from water that could be developed without a permit from the State Engineer.

F. Almost no enforcement of the Priority Doctrine within New Mexico. The Pecos River litigation was a situation where not applying the Priority Doctrine may have been a violation of the Pecos Compact which when ratified by the US Congress became Federal Law. The Pecos Compact appears to require that there be a priority call as the means to comply with the agreement rather than using taxpayer money to retire water rights. But perhaps that ends up being more of a political issue than a legal issue.

Lack of Coordination among New Mexican Water Policy Makers

Although it is not clear that there is good coordination within Texas, it is New Mexico that is under attack and water flows primarily from New Mexico towards Texas although what occurs underground is more complex.

There appears to be essentially no coordination among the New Mexico Governor, the State Agencies which report to the New Mexico Governor, the New Mexico Attorney General’s Office (whose filing in Federal Court seemed to come out of the blue), The New Mexico State Engineer/Interstate Stream Commission (those two agencies are highly coordinated), and the New Mexico Legislature. One of many examples of this can be seen by reading the history of a significant piece of legislation now being heard by the New Mexico Legislature.  Of special importance are the comments in what is referred to as the Fiscal Impact Report (FIR).

EBID Attitudes towards the Texas Legal Action (from the EBID Website)

“On January 8, 2013 the State of Texas filed a motion seeking leave of the Supreme Court of the United States to file a complaint against the State of New Mexico regarding Rio Grande Compact violations. For purposes of this new case, it is important to understand that what TX has said is that NM is not meeting its obligations with respect to deliveries to the Rio Grande Project (RGP) which is comprised of the Elephant Butte Irrigation District (EBID) in New Mexico (accounting for 57% of irrigable RGP lands) and the El Paso Water Improvement District No. 1 (EP No. 1) in Texas (accounting for 43% of irrigable RGP lands). This is not the same as claiming that NM has violated the Compact delivery requirement at Elephant Butte Reservoir. Historical documents regarding circumstances at the time the Compact was negotiated all seem to make it clear that the only reason the Compact was created was to protect deliveries to the RGP, which is senior to the upstream water uses that began depleting the flow of the river.

“TX further alleges that NM is attacking the Operating Agreement (OA) that EBID and EP No. 1 have used as a method to divide water between the two entities since 2008, and the possibility of having that agreement overturned is a problem for them according to the TX filing. NM has taken a position in NM Federal District Court (in the AG lawsuit) in which it has asked the court to throw out the OA altogether. EBID is a party in the AG lawsuit, and EBID, along with the United States and EP No. 1 have consistently taken litigation positions in support of the OA.

“ Some have argued that TX should have just let the NM Federal District Court decide these issues, however, consider NM’s position in the lawsuit that led to the OA—NM said they would not stand to be hailed into Federal District Court in any other state to decide issues integral to its own state sovereignty. To that end, NM chose not to enter the litigation in TX Federal District Court which led to the negotiation of the OA but instead concentrated their time and resources on developing a costly and highly controversial regulatory scheme known as Active Water Resource Management aimed at forcing EBID and other NM water right owners into involuntary curtailment of water use. Regardless of not participating formally in the TX Federal District Court Case, NM did in fact contribute to the creation of the OA as they were kept apprised of the developments in the mediation that led to the OA and commented on drafts of the OA before its completion. TX is now saying the same thing NM said only a few years ago—yes, they understand the NM court currently has some of these issues before it, but why should they be forced to be hailed into a NM court to adjudicate issues that are integral to their own state sovereignty? Further, there are other legal principles at play that would make it contrary to the interests of the State of TX to sit on the sideline while the NM court determines many of these issues without their presence. It is too early to say where EBID will come down with all of this, but those are some general principles/issues to consider.

“ What ultimately caused TX to file in the Supreme Court appears to be that NM has taken unreasonable litigation positions that at times could have been avoided, and if avoided, may have led to a different situation here. EBID will seek to participate in this case on behalf of farmers within EBID and we will wait to see if the court and special master accept the reasoning put forth by TX, considering NM has NEVER won an interstate water battle against TX.”

Texas Remedies.

Texas has not been very specific in terms of the remedies sought. They have indicated that they desire compensation. One assumes they will request that NM be enjoined from interfering with the current Operating Agreement that had been freely negotiated between EPCWID#1 and EBID. The big question is will they request that some or all of the groundwater wells used in EBID be decommissioned and plugged?

Rio Grande Project Efficiency

A pecan pie can only be divided into a certain number of slices before it no longer constitutes a dessert serving but rather a culinary tasting exercise. Similarly a Project with an insufficient water supply can have that water supply allocated on a pro rata basis which has been the practice and intent of the Rio Grande Project which in low-flow years means that no one has sufficient water to grow a crop without groundwater supplementation which may not be sustainable indefinitely or by some other approach such as the priority doctrine in which case there are winners and losers or by taking some land out of production by incentives which can be very expensive. An alternative is to improve the efficiency of the Project which now leaks like a sieve.

Of course this shifts the income stream from attorneys to engineers. In one of the Historical Documents in 1925 – 1926 an Engineer stated that “water economy has been an unknown term on the Government Project” It has been about 90 years since that statement was made. Perhaps it is time to introduce water economy into the lexicon of the US Bureau of Reclamation.

Conclusions

When I read the Texas Brief, their case seems to me to be fairly weak so weak that the US Supreme Court may not even allow it to proceed. On the other hand, their opponent is totally disorganized and may have conflicts among some of the entities in New Mexico as to who they wish to prevail in this matter. New Mexico has in my opinion made a number of errors in how they have prepared for and are currently handling this situation. New Mexico may not have been receiving good advice from counsel. So this is truly a David and Goliath situation. Can New Mexico get off a lucky shot?

An objective analysis might conclude that the U.S. created this problem historically. Rather than sitting on Mount Olympus and watching as Texas and New Mexico struggle with what really currently is Mother Nature and fight over the allocation of the waters of the Rio Grande without creating a single drop of water, perhaps a more responsible approach would be to take actions to make the Rio Grande River and the Rio Grande Project more efficient and thus improve the situation for all involved which would allow the areas impacted to move forward rather than back to what essentially would be Territorial Status under the Supervision of the U.S. Supreme Court.

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