October 3, 2022


Advocacy. Mediation. Success.

Opinion analysis: Court sides with New Mexico over Texas in interstate water dispute

The Supreme Courtroom made the decision Texas v. New Mexico on Monday, ruling in New Mexico’s favor in an interstate drinking water dispute over the Pecos River. Texas submitted the situation specifically in the Supreme Courtroom, invoking the court’s unique jurisdiction in circumstances exactly where 1 state sues an additional … just as it did on Dec. eight when it sued 4 “swing” states over how they done the presidential election. While both circumstances ended badly for Texas within just days of just about every other, the Supreme Courtroom – which has made the decision lots of interstate drinking water circumstances – at minimum arrived at the deserves of the Pecos litigation.

In a 7-one selection (with Justice Amy Coney Barrett not taking part for the reason that she joined the courtroom soon after the situation was argued), the courtroom upheld a perseverance of the Pecos River Grasp, who was appointed by the courtroom itself to oversee implementation of its decree issued in 1988 soon after earlier rounds in this extensive-operating litigation. This is the very first situation in which the courtroom has reviewed a selection of an appointed river master there are only two this sort of officials in the country, and the courtroom has declined to appoint new types. For the reason that the preparations are nearly distinctive to the Pecos, the court’s hottest selection is unlikely to build vital precedent for other interstate drinking water disputes – but it does uphold the river master’s perseverance that Texas ought to bear most of the losses soon after nearly 7 billion gallons evaporated from a reservoir in New Mexico, exactly where drinking water was held for many months at Texas’ ask for.

The selection

In a remarkably crisp and concise viewpoint written by Justice Brett Kavanaugh, the courtroom upheld the river master’s perseverance about how the two states ought to bear the evaporation losses that happened while drinking water from the Pecos was stored in Brantley Reservoir in New Mexico, soon after a tropical storm dumped heavy rain into the river basin in September 2014. Usually, the drinking water would have been released to move downstream to Texas, but Texas asked for that the drinking water be briefly stored in the reservoir. When some of the drinking water evaporated, Texas explained that is ought to not be liable for the missing drinking water. The river master disagreed and concluded that Texas ought to bear most of the evaporation losses for the reason that it experienced asked for the storage. (For a much more in-depth summary of the information and the states’ competing arguments, see my situation preview.)

In upholding the river master’s selection as “legally exact and solely honest,” the greater part relied largely on an e-mail trade amongst Texas and New Mexico officials that commenced in November 2014. The Texas official wrote his New Mexico counterpart with a “request that New Mexico retail outlet Texas’ part of the flows until this sort of time as they can be utilized” in a reservoir downstream in Texas. The New Mexico official afterwards responded by agreeing to the ask for, noting that the drinking water “belongs to Texas” and if not would have been released from Brantley, and that evaporation losses “should consequently be borne by Texas.”

Dependent on this trade, the courtroom agreed with the river master that the drinking water experienced been stored in Brantley at Texas’ ask for. Thus, the drinking water was matter to Section C.five of the River Master’s Handbook, the relevant part of which the courtroom quoted two times: “If a quantity of the Texas allocation is stored in services produced in New Mexico at the ask for of Texas, then … this quantity will be lowered by the volume of reservoir losses attributable to its storage, and, when released for shipping and delivery to Texas, the quantity released a lot less channel losses is to be shipped by New Mexico at the New Mexico-Texas state line” (emphasis extra by the courtroom). In the court’s see, the simple which means of this provision “easily resolves this situation.” The textual content of the manual, together with the states’ correspondence, “establish that New Mexico is entitled to shipping and delivery credit score for the drinking water that evaporated while New Mexico was storing the drinking water at Texas’ ask for,” Kavanaugh wrote for the courtroom.

The courtroom desired scarcely a page to reject three of Texas’ arguments against the software of Section C.five. Perhaps most curiously, Texas argued that the drinking water retained in Brantley experienced not been “stored” within just the which means of Section C.five for the reason that it was not basically being held there for effective (i.e., consumptive) use. A drinking water attorney could possibly see that as a meaningful distinction, but the courtroom did not, noting that Section C.five “does not purport to outline ‘stored’ in any way other than its normal which means of keeping drinking water for Texas.” The courtroom also noted that the relevant state officials experienced employed the expression in correspondence: “Indeed, Texas’s original ask for to New Mexico came in an e-mail with the really hard-to-misunderstand matter line ‘Texas ask for for storage.’”

The courtroom experienced no much more problems with Texas’ declare that the river master’s selection was premature for the reason that he did not take care of the accounting challenge until several years soon after submitting his original report for 2014, when the drinking water was to begin with stored in Brantley. While Texas experienced an argument based on the terms of the 1988 decree that govern implementation of the Pecos River Compact, the courtroom rejected it largely for the reason that the river master experienced noted the “pending issue” of accounting for the evaporation losses, and both states experienced agreed to go away it open as they labored to take care of it. “Texas can’t now run away from the procedure that it agreed to,” the courtroom explained.

The courtroom summed up its perseverance on the deserves by stating, “The drinking water was stored in New Mexico at the ask for of Texas. Some of the drinking water then evaporated in advance of it was released to Texas. Under all those instances, as the River Grasp accurately concluded, New Mexico is entitled to shipping and delivery credit score for the evaporated drinking water.”

The dissent

At oral argument, Justice Samuel Alito was seemingly the only member of the courtroom who observed a great deal merit in Texas’ posture. (His former clerk, Texas Solicitor Typical Kyle Hawkins, argued the situation.) He by yourself did not join the greater part viewpoint, submitting a partial and rather peevish dissent.

Alito agreed with the greater part that the river master’s selection was timely but scolded him and the states for their “violations” of the reporting timelines and methods, and Alito admonished them all to “take far better treatment to abide by the terms of the [1988] decree.” On the deserves, he would have vacated and remanded the selection to the river master “to redo his analysis in accordance with the relevant terms of the amended decree and manual.” Alito assumed the greater part experienced wrongly disregarded the job of the U.S. Bureau of Reclamation, which experienced designed the selection to hold the drinking water in Brantley and finally to release it. In his see, for the reason that the bureau experienced explained that the drinking water was held there for flood-management functions, and for the reason that Texas experienced no valid agreement to use drinking water stored in Brantley, “it appears that it would have been illegal for [the bureau] to retail outlet the drinking water simply for the reason that Texas asked for that they do so.” He assumed these things lifted concerns about the authorized which means of the states’ e-mail trade, and he would have ordered the river master to form out these problems of intent and authority less than the terms of the compact, the 1988 decree, and the River Master’s Handbook.

The dissent appears to be at odds with a vital Texas argument, nonetheless, and most likely with Texas’ extensive-expression passions on the Pecos. Texas maintained that the river master has no knowledge or authority to take care of authorized problems – but less than Alito’s remand, the river master would have experienced to tackle difficult authorized problems involving federal drinking water projects and drinking water provide contracts. And Texas could possibly be uneasy with the dissent’s recommendation that the bureau — for whom drinking water provide has generally been the main mission — could not legally hold drinking water in Brantley for even a quick time only on Texas’ ask for. Texas designed this sort of a ask for in 2014 for the reason that it hoped that keeping the drinking water briefly in Brantley could gain its irrigators, and ought to it do so yet again Texas would want the bureau to have some discretion in keeping and releasing drinking water from substantial-move events.


As noted above, the distinctive posture of this spherical in Texas v. New Mexico – the very first-at any time evaluate of a river master selection – will make the situation unlikely to provide as vital precedent for other interstate drinking water disputes exactly where there is no this sort of river master. In other phrases, this selection ought to have tiny or no relevance for the job of the much more acquainted “special master” in interstate drinking water circumstances, or for the court’s strategy to reviewing special master stories and tips.

Had the courtroom declined to undertake the river master’s reasoning and based its selection on some provision of the compact or the 1988 decree, the viewpoint could possibly have manufactured some possibly practical tea leaves for other drinking water disputes. While at oral argument some justices appeared open to this strategy, inquiring about specific compact provisions, the courtroom in a footnote declined to tackle these provisions. Rather, the selection rested comfortably on the River Master’s Handbook.

Interstate drinking water legal professionals on the lookout for clues about the court’s normal strategy to these circumstances could possibly come across 1 tidbit. The court’s 1988 decree specified that Pecos River Grasp choices “shall be matter to evaluate by this Courtroom only on a displaying that the Final Willpower is evidently faulty.” Some justices appeared to concern that common at oral argument, and the hottest selection concludes with a footnote stating, “The Courtroom has previously said that the River Master’s determinations are reviewed only for clear mistake. … In this article, New Mexico prevails even less than de novo evaluate, so the common of evaluate does not have an affect on our judgment in this situation.” Kavanaugh selected his phrases with terrific precision in this viewpoint, so there is which means in describing the “clearly erroneous” common as 1 the courtroom has “previously said.” Thus, the courtroom recommended a opportunity willingness to depart from an recognized decree expression – albeit 1 that does not specifically tackle the legal rights or obligations of the get-togethers. For interstate drinking water legal professionals, this could possibly depict a little precedential crumb, approximately the sizing of all those remaining powering in Whoville by the Grinch.

The submit Viewpoint analysis: Courtroom sides with New Mexico over Texas in interstate drinking water dispute appeared very first on SCOTUSblog.