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SCOTUS: Feds can intervene in case pitting Texas against NM

Copyright © 2018 Albuquerque Journal

CORRECTION: A headline in Tuesday’s Journal incorrectly said the Supreme Court sent a New Mexico water case to arbitration. The court remanded the case to a so-called “special master” who will oversee ongoing arguments in the case.

WASHINGTON – The U.S. Supreme Court ruled unanimously Monday that the federal government can intervene in a water case pitting Texas against New Mexico and Colorado, meaning the case will be sent back to a “special master” to arbitrate the dispute.

The opinion, written by Justice Neil Gorsuch, said the federal government must be allowed to meet its federal water obligations – including an international agreement with Mexico – and actions that would go against the decades-old Rio Grande Compact would hinder that duty. The 1938 Rio Grande Compact governs the distribution of water in the Rio Grande Basin.

Gorsuch said “a breach of the Compact could jeopardize the federal government’s ability to satisfy its treaty obligations to Mexico.”

Texas sued New Mexico in 2014, claiming that New Mexico farmers and pecan growers illegally pump groundwater from below Elephant Butte Dam that would otherwise flow to El Paso and West Texas. New Mexico claims that its water obligations to Texas are measured at the dam.

New Mexico had filed a motion to dismiss Texas’ lawsuit, but in July a special master appointed by the Supreme Court to analyze the case recommended the court reject that motion and allow the case to proceed. The complicated case could set a standard for the role the federal government will play in settling water rights disputes between states in the years ahead.

Reed D. Benson, chairman of the Natural Resources & Environmental Law Program at the University of New Mexico, said the Supreme Court ruling was not unexpected.

“This decision is a preliminary ruling on the kinds of arguments the U.S. can make in this case, and the result was what most people expected, especially after the oral argument,” Benson said. “It’s a narrowly written opinion that doesn’t change the course of the lawsuit. But the outcome is not encouraging for New Mexico, in part because it allows the U.S. to reinforce all of Texas’ compact arguments.”

In issuing its ruling, the court noted that New Mexico “has conceded in pleadings and at oral argument that the United States plays an integral role in the Compact’s operation.”

Marcus J. Rael Jr., a private attorney working under contract for the New Mexico Attorney General’s Office, represented the state before the court Monday. Rael told the justices in January 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.

James Hallinan, a spokesman for New Mexico Attorney General Hector Balderas, noted that the Texas lawsuit was filed during the tenure of then-Attorney General Gary King, and he said Balderas is looking out for New Mexico’s interests and “will continue to vigorously defend the rights of New Mexico water users and work with all parties to seek a fair resolution for New Mexicans.”

“Today’s ruling was a preliminary matter clarifying the United States’ role in the case,” Hallinan added.

During oral arguments before the court in January, justices seemed to signal their thoughts on the matter.

“It seemed to me quite simple,” Justice Steven Breyer said during the arguments. “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.”

In 2008, water agencies in Texas and New Mexico, along with the federal government, reached a deal to share lower Rio Grande water. The parties hoped negotiating a Rio Grande operating agreement among themselves would head off an interstate lawsuit by Texas. But in 2011, King’s office filed suit to invalidate the interstate water operating agreement, charging that it gave away too much of New Mexico’s water to Texas.

Texas, in its initial Supreme Court filing, cited King’s lawsuit, arguing that it advanced “novel interpretations of the Rio Grande Compact” and that the Supreme Court’s help was needed to untangle the disagreement.

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