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Texas can sue NM over water, Supreme Court rules

ALBUQUERQUE, N.M. — The U.S. Supreme Court on Monday said Texas can go ahead with its lawsuit that claims groundwater pumping in southern New Mexico is draining the Rio Grande and depriving Texas users of water to which they are legally entitled.

Texas cleared a major hurdle with the decision, which could set the stage for a protracted legal battle. The court did leave New Mexico what could be an escape clause that would allow the case to be quickly dismissed.

This point on the Rio Grande, where Texas, New Mexico and Mexico meet, is at the center of a water management controversy that Texas took to the U.S. Supreme Court. (Roberto E. Rosales/Albuquerque Journal)

This point on the Rio Grande, where Texas, New Mexico and Mexico meet, is at the center of a water management controversy that Texas took to the U.S. Supreme Court. (Roberto E. Rosales/Albuquerque Journal)

“Texas has the upper hand now,” said attorney Steve Hernandez, who represents the Elephant Butte Irrigation District.

New Mexico Attorney General Gary King expressed disappointment that the court did not throw out Texas’s case completely.

“Clearly, I was hoping for a different outcome, however, I am not surprised. I am confident that the Court takes such state-to-state disputes very seriously, and we look forward to being able to tell New Mexico’s side of the story and to have our day in Court,” King said in a statement.

Last January, Texas asked the Supreme Court to consider the issues raised by the conflict between the two states over the shared river, saying it was the only court with the jurisdiction to sort out the legal and hydrologic mess. But the Supreme Court’s criteria for what cases it will consider are high and the last year’s legal jockeying has largely been focused on the question of whether the case proceeds at all.

Monday’s answer to that question, a one-paragraph order, was “yes,” but with a caveat. The court ruled that Texas did make enough of a case for the issue to proceed. But the first order of business, the court ruled, will be to hear New Mexico’s arguments in favor of immediately dismissing the litigation.

The court gave New Mexico and Texas another 120 days to file a new set of competing legal briefs on the issues Texas has raised.

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 January 2013 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.

Some in southern New Mexico point to that language in the Texas court filing and, as a result, blame King for the fact that Texas is suing New Mexico.

“I really think the crux of this is the attorney general’s lawsuit to vacate the operating agreement,” Mesilla Valley pecan farmer Greg Daviet said Monday in a telephone interview.

King’s office Monday declined to comment on the allegation.

Daviet said the 2008 Rio Grande sharing agreement offered farmers some certainty that their groundwater pumping rights would be protected. The Texas Supreme Court action replaces that certainty with the risk that an adverse decision might mean farmers could have their groundwater pumping rights curtailed.

“Property values would suddenly plummet,” Daviet said.

King’s office hopes to head off that problem by persuading the Supreme Court to quickly dismiss the case. If that fails and the litigation proceeds, it could take years for the issues to be settled. A similar case filed in 1974 by Texas took nine years to resolve.