The Supreme Court ruled Texas versus New Mexico on Monday and ruled in New Mexico’s favor in an interstate water dispute over the Pecos River. Texas filed the case directly with the Supreme Court, relying on the court’s original jurisdiction in cases where one state is suing another … just as it did on December 8th when it sued four “swing” states for running presidential elections . Although both cases ended badly for Texas within days, the Supreme Court – which has ruled many interstate waterfalls – at least achieved the merits of the Pecos litigation.
In a 7: 1 decision (in which Judge Amy Coney Barrett did not take part because she joined the court after the dispute), the court upheld a decision by the Pecos River Master, who was appointed by the court to enforce its decree monitor issued in 1988 after previous rounds in this longstanding legal battle. This is the first case the court has reviewed a decision made by an appointed river master. There are only two such officials in the nation and the court has refused to appoint new ones. With the regulations for the pecos nearly unique, the court’s recent ruling is unlikely to set a major precedent for other interstate water disputes. However, it confirms the river master’s determination that Texas should bear most of the losses after nearly 7 billion gallons evaporated from a reservoir in New Mexico, where water was held for several months at Texas’ request.
In a remarkably clear and succinct statement from Judge Brett Kavanaugh, the court upheld the river master’s determination how the two states should bear the evaporative losses that occurred when water from the Pecos was stored in the Brantley Reservoir in New Mexico after a tropical storm in September In 2014, heavy rain was released into the river basin. Ordinarily the water would have been released to flow downstream to Texas, but Texas requested that the water be temporarily stored in the reservoir. When some of the water evaporated, Texas said it shouldn’t be responsible for the water lost. The river master disagreed and concluded that Texas should bear most of the evaporation losses because it had requested storage. (For a more detailed summary of the facts and the states’ competing arguments, see my case preview.)
In confirming the river master’s decision as “legally correct and entirely fair,” the majority relied largely on an email exchange between representatives from Texas and New Mexico that began in November 2014. The Texas official wrote to his New Mexico counterpart with a “Request of New Mexico to store that portion of the Texas streams until they can be used. “In a reservoir downstream in Texas. The New Mexico official later responded by agreeing to the request, stating that the water “belongs to Texas” and otherwise would have been released from Brantley and that evaporation losses “should therefore be borne by Texas.”
As a result of this exchange, the court agreed with the river master that the water had been stored in Brantley at the request of Texas. Hence, the water was subject to Section C.5 of the River Master’s Manual, the relevant part of which the court cited twice: “If any portion of the Texas allotment is stored in facilities established in New Mexico at the request of Texas, then … That amount will reduced by the amount of reservoir losses attributable to its storage, and if it is released for delivery to Texas, the amount released minus the canal losses must be delivered from New Mexico to the New Mexico-Texas state border ”(emphasis added ) added by the court). According to the court, the simple meaning of this provision can “easily solve this case”. The text of the manual, along with state correspondence, “states that New Mexico is eligible for shipping credit for the water that has evaporated while New Mexico has stored the water at the request of Texas,” Kavanaugh wrote for the court.
It took barely a page for the court to reject three Texas arguments against the application of Section C.5. Perhaps most interestingly, Texas argued that the water retained at Brantley was not “stored” as defined in Section C.5 because it was not kept there for beneficial (ie consuming) use. A water attorney might find this a meaningful distinction but the court did not, stating that Section C.5 “does not purport to define” stored “in any other way than the usual meaning of holding water for Texas.” The court also noted that state officials had used the term in their correspondence: “Indeed, the first request from Texas to New Mexico came in an email with a hard-to-understand subject line,” Texas Request to Retain. “
The court no longer had any issues with Texas’ allegation that the river master’s decision was out of date as it didn’t resolve the accounting problem until years after filing its first report for 2014 when the water was originally stored in Brantley. Although Texas had an argument based on the provisions of the 1988 Decree governing the implementation of the Pecos River Compact, the court largely denied it because the river master had seen the “pending issue” of accounting for evaporation losses, and both States had agreed to leave it open while they worked to resolve it. “Texas cannot now run away from the trial it has consented to,” the court said.
The court summarized its decision on the matter as follows: “The water was stored in New Mexico at the request of Texas. Some of the water then evaporated before being released to Texas. In these circumstances, as the river master rightly stated, New Mexico is eligible for credit for the water that has evaporated. “
At a hearing, Justice Samuel Alito appeared to be the only member of the court who saw much merit in the Texas position. (His former employee, Texas Attorney General Kyle Hawkins, argued on the case.) He alone disagreed with the majority opinion and filed a partial and somewhat angry disagreement.
Alito agreed with the majority that the river master’s decision was made in a timely manner, but scolded him and the states for their “violations” of reporting deadlines and procedures, and Alito admonished them all “better to ensure compliance with the  Decree. “On the matter, he would have vacated the River Master’s decision and referred back to” reiterating his analysis in accordance with the relevant provisions of the amended decree and manual. “Alito believed the majority wrongly ignored the role of the US Bureau of Reclamation, which decided to keep the water in Brantley and eventually release it, in his view because the office said the water was being kept there for flood control purposes and because Texas did not have a valid contract to use the water stored in Brantley, “seems it to have been illegal [the bureau] to save the water just because Texas asked for it. “He believed these factors would raise questions about the legal significance of states’ email exchanges, and he would have ordered the River Master to address these questions of intent and authority in accordance with the provisions of the Covenant, the 1988 Decree and the Manual of the To clarify river master.
The dissent, however, appears to be at odds with an important argument made in Texas and possibly Texas’s long-term interests in the Pecos. Texas alleged that the river master had no expertise or authority to resolve legal issues – but under Alito’s pre-trial detention, the river master should have addressed challenging legal issues related to federal water projects and water supply contracts. And Texas may be dissatisfied with the dissident’s suggestion that the bureau – which has always been the primary concern of supplying water – could not legally hold water in Brantley, even upon brief request from Texas. Texas made such a request in 2014 because it was hoping that holding the water at Brantley temporarily could benefit its waterers, and should it do so again, Texas would like the office to have a degree of discretion in holding and releasing water Has high flow events.
As noted above, given the unique stance of this round in Texas versus New Mexico – the very first review of a river master decision – the case is unlikely to serve as an important precedent for other interstate water disputes where such a river master does not exist. In other words, this decision should have little or no relevance to the role of the more prominent “special master” in interstate waterfalls or to the court’s approach to reviewing specific main reports and recommendations.
Had the court rejected the river master’s line of argument and based its decision on a provision of the pact or 1988 decree, the opinion might have produced some potentially useful tea leaves for other water disputes. Although at a hearing some judges appeared open to this approach and asked about certain compact provisions, the court declined in a footnote to address these provisions. Instead, the decision was conveniently based on the river master’s manual.
Intergovernmental water attorneys looking for guidance on the court’s general course of action in these cases might find a tidbit. The 1988 court decree stated that decisions of the Pecos River Master “need only be reviewed by that court if the final determination is found to be clearly incorrect”. Some judges appeared to question this standard at an oral hearing, and the latest ruling concludes with a footnote stating, “The court previously held that the River Master’s findings are only checked for clear errors. … This is where New Mexico also asserts itself in the de novo review, so that the review standard does not affect our judgment in this case. “Kavanaugh chose his words in this statement with great precision, so it makes sense to describe the” clearly flawed “standard as one that the court” previously indicated “. The court therefore suggested a possible willingness to deviate from a fixed prescription period – albeit one that does not directly address the rights or obligations of the parties. For interstate water attorneys, this could represent a tiny priority crumb, about the size of the one the Grinch left behind in Whoville.
The voting of votes according to ideology is displayed. Click here to group votes by seniority.
Reed Benson, Opinion Analysis: Court Pages With New Mexico Over Texas In Interstate Water Dispute,
SCOTUSblog (December 17, 2020, 10:01 am), https://www.scotusblog.com/2020/12/opinion-analysis-court-sides-with-new-mexico-over-texas-in-interstate-water – Dispute/