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NM counterclaim filed in Rio Grande water suit

Copyright © 2018 Albuquerque Journal

WASHINGTON – New Mexico Attorney General Hector Balderas is pushing back against Texas in a long-standing Rio Grande water fight, and this week he filed a counterclaim in U.S. Supreme Court accusing Texas of mismanaging water and hurting New Mexico’s farmers.

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. The complex dispute is being overseen by a so-called special master appointed by the U.S. Supreme Court.

The Supreme Court ruled unanimously in March that the federal government can intervene in the case, complicating New Mexico’s position. Balderas’ filing late Tuesday aims to put Texas and the federal government on the legal defensive.

“I’m asking the United States and Texas to address my counterclaims and show me the (water) accounting and the hydrology science, because I believe Texas has suffered no harm,” Balderas told the Journal on Wednesday, adding that he assembled a team of lawyers and hydrology experts to make his 30-page case. “I believe New Mexico has worked hard to be very fair and Texas’ claims are exaggerated and quite greedy.”

The office of Texas Attorney General Ken Paxton did not respond to a Journal request for comment on Balderas’ counterclaim.

Water flows through a Middle Rio Grande Conservancy District ditch gate in the North Valley. New Mexico is embroiled in a legal battle with Texas over water rights. (Dean Hanson/Albuquerque Journal)

A Supreme Court opinion written by Justice Neil Gorsuch in March 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 wrote, “A breach of the Compact could jeopardize the federal government’s ability to satisfy its treaty obligations to Mexico.”

But Balderas argued in the Journal interview Wednesday and in his court filing late Tuesday that the federal government’s primary concern should be with protecting U.S. water rights, not Mexico’s.

“I don’t believe it’s fair that the U.S. somehow place Mexico’s water interests over our American water interests, and I believe we will win that court battle,” Balderas said. “I don’t believe that their (Mexico’s) treaty interests are as strong as state and federal interests.”

New Mexico had filed a motion to dismiss Texas’ lawsuit, but in July the special master appointed by the Supreme Court to analyze the case recommended that the court reject that motion and allow the case to proceed. The complex 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 Balderas’ arguments mirror, in some respects, litigation previously filed by New Mexico related to the case. Benson also said Balderas’ counterclaim “raises a lot of new factual issues.”

“New Mexico is claiming mismanagement of water by both Texas and Mexico and arguing that therefore New Mexico should not be liable,” Benson said. “It might be hard for New Mexico to prove that mismanagement, and even if it can, it might be hard to prove that New Mexico was harmed by what downstream states are doing.”

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