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N.M. asks court to kill Texas suit

ALBUQUERQUE, N.M. — New Mexicans are meeting their legal obligation to deliver Rio Grande water to downstream users, and the U.S. Supreme Court should throw out a lawsuit filed by Texas in January, New Mexico attorneys said in a brief filed with the court Monday.

The filing is the latest move in a legal battle between the two states over water — or lack thereof — in the Rio Grande. Texas, in its suit, charged groundwater pumping in southern New Mexico is drying up the Rio Grande, reducing flows of water to which Texas is entitled.

New Mexico countered Monday that Texas is trying to rewrite the terms of the Rio Grande Compact, a 1938 deal among Colorado, New Mexico and Texas. The compact only specifies a requirement to deliver water to Elephant Butte Reservoir, New Mexico’s attorneys said in their filing.

New Mexico has made its required Elephant Butte deliveries, the state’s lawyers argued in their brief filed with the court.

“The state of New Mexico is confident that we’ve actually been meeting the terms of the compact,” Attorney General Gary King said in an interview Monday.

If Texas has concerns about groundwater pumping in southern New Mexico, as it argued in its suit, there are other legal forums available to fight out that issue, the New Mexico attorneys argued.

In its complaint to the U.S. Supreme Court, Texas had argued that delivery of water to Elephant Butte was insufficient. Once water left Elephant Butte, New Mexico farmers are using more than their fair share, before the Rio Grande water ever has a chance to reach the New Mexico-Texas state line, the Texas lawsuit claimed.

Texas officials filed the case directly with the U.S. Supreme Court, arguing that it was the only court with the jurisdiction to deal with the state-versus-state conflict.

In its response, New Mexico’s attorneys argued that to make that argument, Texas has to in effect “rewrite” the Rio Grande Compact. Rather than dividing the Rio Grande’s waters at the state line, the compact only requires New Mexico to deliver water to Elephant Butte reservoir, they noted. After that, it is up to the federal government, as operator of Elephant Butte Dam and the irrigation works downstream, to determine who gets what water.

If Texas thinks there is a problem with the way the water is being divided up, separate lawsuits now under way in both state and federal court are the appropriate venue to argue the issues, rather than the U.S. Supreme Court, New Mexico’s attorneys argue.

The next step in the case is a decision by the court about whether it will agree to take the case. If it does not accept the case, Texas’ suit dies. If it takes the case, resolving it could take years, experts say.
— This article appeared on page D1 of the Albuquerque Journal