TEXAS V. NEW MEXICO:
By: Ian Ferrell
Tags: Water, Lawsuit, United States, Western, Rio Grande

ANOTHER CHAPTER IN A REGIONAL DISPUTE, A MERE PRELUDE TO A FUTURE CRISIS

Ian W. Ferrel

ABSTRACT

On January 8, 2013, Texas filed a complaint with the U.S. Supreme Court alleging that New Mexico has failed to satisfy its obligations under the Rio Grande Compact.1 In the complaint, Texas alleges that New Mexico failed to control illegal diversions of water from the Rio Grande south of the Elephant Butte Reservoir.2 This legal challenge arises as Texas suffers from one of the worst droughts it has experienced in the last century.3 However, if the Court decides to exercise its exclusive and original jurisdiction and hear the case, it will not be tasked with a straightforward decision. The Court will have to decide a question about a complex web of rights that originates from over a century of legal compromise in a modern climatic era that continues to test and strain the integrity of the legal status quo.4 The rights to this stretch of the Rio Grande originate from a maze of legislative history, overlapping regional compromises, and preexisting rights derived under various sources of federal, state, and international law. This article will: (1) explain the history and the development of the legal structures that are the subject of this dispute, (2) describe the events that lead to Texas’ eventual plea before the U.S. Supreme Court, (3) discuss the legal issues that the Court must decide before exercising its jurisdiction, and (4) argue that the pending case on one hand highlights the need for serious reform to Southwestern groundwater law and policy, and on the other hand symbolizes a lost opportunity and serves as an example of political passion obfuscating the recognition of a fair compromise.

I. INTRODUCTION

Beginning its journey at the foot of the San Juan Mountains of Colorado, the Rio Grande travels South and East 1800 miles before it reaches the Gulf of Mexico.5 On its seaward journey, the river begins as a network of meandering streams and tributaries converging in the San Luis Valley of southern Colorado. It travels 150 miles south to the Colorado- New Mexico border; flows 400 miles through New Mexico; and serves as an international boundary as it runs 1250 miles along the Texas-Mexico border before it empties into the Gulf of Mexico.6 See App. 1 & App. 2. As it travels south, it fills a network of reservoirs, provides water for large areas of population, and provides irrigation for agriculture and water for livestock. Moreover, as its water travels south, the river provides recharge for six alluvial basin aquifers within the Rio Grande aquifer system. See App 3.

Of particular importance, the Rio Grande provides recharge for the Mesilla Bolson and Hueco Bolson aquifers. The Franklin Mountains divide the Hueco-Mesilla Bolson acquifer. To the west of the Franklin Mountains lies the Mesilla Bolson aquifer; to the east lies the Hueco Bolson aquifer. The westerly Mesilla Bolson aquifer extends from its northern-most point near Las Cruces, New Mexico south into northern Mexico and into the northwest corner of Texas, near El Paso. Whereas, the easterly Hueco Bolson aquifer begins about 7 miles to the north of the Texas-New Mexico border near Alamogordo, New Mexico. It spans to the south and to the east into Texas, and it reaches into Mexico along the Texas-New Mexico border. See App. 4 & App. 5.

Many competing interests rely upon the Rio Grande and its surrounding aquifers as vital sources of water in the arid Southwestern semidesert region. Predictably, the legal history of the rights to the river mirrors many long-fought struggles for access to its precious hydrating waters in a desiccated region. Such struggles have influenced and formed the legal structures intended to accommodate and control the demands on the Rio

Grande’s waters. These legal structures are being tested as the region adapts to a changing climate, including “shifts in precipitation and potential evapotranspiration.”7 Regional population growth will further serve to compound these effects.

Data reveal that many Southwestern state populations have consistently outpaced national averages: from 2010 to 2011, Texas and Colorado ranked in the top ten states for population growth, with Texas seeing the largest national population increase from 2000 to 2010.8 According to projections, by 2060 Texas’s population will increase 82 percent and its water demand will increase 22 percent.9 Similarly, projections forecast that by 2060 New Mexico’s population will increased almost 80 percent, and projections forecast by 2050, New Mexico’s water withdrawal will grow by 25 percent.10

As these regional demands steadily expand and with access to surface waters increasingly constrained, regional reliance on groundwater to supplement these growing demands has increased dramatically over the last half-century. See App. 6, App. 7 & App. 8.

As the Southwest continues to endure severe episodes of drought, regional water supply will continue to be strained and legal disputes will arise with greater frequency. Absent serious reform to address climate change by both the United States and global actors alike, and in light of widespread reliance on the relatively unregulated practice of groundwater extraction to meet growing regional demand, the risks posed to the Southwest’s sustainable future and its population security are immense and seemingly unavoidable. In order for the region to prepare for, mitigate and possibly, although unlikely, even avert the looming crisis, serious change to the institutional and legal framework governing water allocation and consumption in the southwestern region is drastically needed.

As stated by David Zetland, “it is basic human nature to exploit opportunity, until the cost of further action is too high.”11 Likewise, the current legal structures regulating groundwater pumping in many southwestern states provide bountiful opportunity for consumption, yet they fail to place the appropriate cost-burden upon the shoulders of the various consumers throughout the region. Rather, these costs are, and will further be, borne by society at large as increasing groundwater consumption in the arid Southwest continues.

If federal and state governments collectively do not aggressive take steps to halt the depletion of regional groundwater sources, whether or not “hydrologically connected” to more-regulated surface water supplies, southwestern groundwater, as a finite common- pool resource, may fall prey to a tragedy of the commons. And, the communities that rely on and exploit groundwater resources surrounding the Rio Grande will be devastated if such an impending calamity materializes.

With this prospectively bleak future lying ahead, the best route for the desert Southwest would be for the U.S. Supreme Court to squarely confront the perverse incentives imbedded in New Mexico and Texas’ state groundwater laws, require Texas and New Mexico, and other states generally, to implement legal doctrine inline with scientific reality (i.e. doctrine recognizing that both surface water and groundwater resources constitute a interconnected hydrological system), and demand that the law internalize the external costs and the resultant systemic risks posed by the overexploitation of groundwater resources.

Although it is unlikely for the Supreme Court to impose such sweeping actions by way of an eventual judicial opinion, the pending case Texas v. New Mexico should, at very least, serve to illustrate a problem of growing national concern — a future where the inadequate regulation of our nation’s water resources may likely lead to an era of widespread regional strife and economic injury. In this case, Texas alleges that New Mexico breached the Rio Grande Project Act and the Rio Grande Compact by extracting groundwater hydrologically connected to the Rio Grande below Elephant Butte Reservoir and the New Mexico-Texas border. Texas argues, if the Supreme Court does not stop New Mexico from illegally extracting groundwater hydrologically connected to the Rio Grande, then it will continue not to receive the amount of water it is owed under the terms of the Rio Grande Project Act and Rio Grande Compact. Texas argues, New Mexico’s alleged breach of the Rio Grande Project Act and the Rio Grande Compact has and will continue to injure Texas.

The lawsuit pending before the Supreme Court perhaps represents an attempt by Texas to bring law in line with scientific reality, and it may represent an effort to expand or establish (depending on one’s perspective) the current scope of an interstate compact in order for law to at least partially internalize some of the external costs caused by regional reliance on groundwater pumping. In this regard, Texas’ plea to the Supreme Court should be applauded because it raises serious questions and highlights important concerns about the scope and sustainability of the legal structures governing water use in the lower Rio Grande basin.

However, from a more myopic perspective, this controversy serves as more than just a bleak illustration of a potential tragedy of the commons. Rather, it serves as an illustration of a lost opportunity. A lost opportunity that will likely cost the state of New Mexico hundreds of millions of dollars in future economic output. Furthermore, the dispute serves as an example of how political belligerence can obfuscate a fair-minded recognition of an equitable and reasonable compromise.

I. HISTORY OF THE LEGAL FRAMEWORK GOVERNING RIGHTS TO THE RIO GRANDE: THE RIO GRANDE PROJECT & THE RIO GRANDE COMPACT

In general, legal rights to the disputed stretch of the Rio Grande derive from the interaction of three sources of law: the Rio Grande Compact of 1938;12 the Rio Grande Project of 1905;13 and the 1906 Treaty between the United States and Mexico.14 If the U.S. Supreme Court hears the pending case, it must untangle the various rights espoused in these provisions.

Presently, these three agreements are integrated into the Rio Grande Compact of 1938 (the “Compact”), which regulates allocation of water from the Rio Grande between Colorado, New Mexico, and Texas.15 The three states ratified the Compact in 1938, though not until Congress consented to it and President Franklin D. Roosevelt signed it into law in 1939 did the Compact gain the force of law. When passed into law, the Compact (1) created an oversight commission to regulate consumption of water between the states according to the Compact’s provisions; (2) specified a system of water debts and credits to allocate water consumption between the states; and (3) established a series of gauge stations to ensure the states would fulfill their water-delivery obligations to one another.16 The agreement, however, was silent on how to apportion flows from the tail waters of Elephant Butte Reservoir as it runs almost 100 miles before crossing into Texas.17 See App. 9. Rather, the Compact incorporated prior rights generated by a series of compromises that took place in the early twentieth century.

A. The Rio Grande Project

These compromises imbedded themselves into the Rio Grande Project (the “Project”). The Project was enacted after El Paso, Texas, and Juarez, Mexico, suffered severe water shortages at the end of the nineteenth century.18 Resulting from concern about the Rio

Grande’s continued ability to supply water to both El Paso and Juarez, “[t]he United States imposed an embargo on the use of public lands for diversion and storage of water from the Rio Grande and its tributaries in Colorado and New Mexico.”19 This embargo remained in force until 1925.20

In response to the water shortages in the late nineteenth century, a group of New Mexican citizens as well as residents from El Paso and Juarez independently undertook plans to develop dams along the Rio Grande. A group in New Mexico proposed building a dam in Elephant Butte, New Mexico. Similarly, a group in El Paso and Juarez proposed building an international dam just north of the cities’ shared metropolitan area.21

Neither of these proposals could go forward, however, without severely impacting the other’s respective regional interests. On one hand, if a dam were built in Elephant Butte, the farmland in southern New Mexico, El Paso, and Juarez would fallow because the spring snowmelt would no longer flood their fields and fertilize their crops. On the other hand, the proposed international dam would not fill if an upstream dam was built simultaneously, and once filled, the international dam would create a reservoir

covering a large portion of southern New Mexico.22 Unsurprisingly, years of legal and political squabbling ensued.23 With the embargo still in force and the conflict between the competing proposals festering, both proposals wallowed and eventually the two parties abandoned their respective dam proposals.

In 1902, however, Congress passed the Reclamation Act,24 allowing the U.S. Reclamation Service, now titled the U.S. Bureau of Reclamation (herein after collectively referred to as “Reclamation”) to search for a location to build a large dam along the Rio Grande.25 With both the Elephant Butte and the international dam plans floundering, Congress, the states, and Mexico eventually struck a compromise.26 Reclamationproposed to build a dam in Elephant Butte, New Mexico.27 In exchange for ceasing plans to build the international dam, it proposed building an irrigation system to provide farmers in southern New Mexico and western Texas with adequate water supplies to fertilize their lands.28 New Mexico, Texas, and Mexico agreed to the proposal, and in 1905, Congress approved the construction of the Project.29 The following year, the United States and Mexico entered into the 1906 Treaty, which obligated the United States to deliver 60,000 acre-feet of water annually to Mexico from the Project.30

In doing so, Congress authorized Reclamation to begin building the Elephant Butte Dam and tasked Reclamation with operating an apportionment system to distribute water from the Project. Douglas R. Littlefield, a leading historian on the Rio Grande, summarized the effect of the Treaty thusly:

The allocation mandated by Congress was that the Reclamation Service would divide the waters within the Rio Grande Project based on surveys of irrigable land in New Mexico and Texas [and] . . . [f]ollowing those studies, the Reclamation Service established that the equitable apportionment of Rio Grande waters within the Rio Grande Project would be supplies sufficient for 88,000 acres in southern New Mexico and 67,000 acres in western Texas.31

The U.S. government would recoup the cost needed to build the irrigation system by charging farmers fees to access and use the irrigation system.32

As these plans unveiled, farmers from New Mexico and Texas each established irrigation districts to coordinate payments between the farmers and the U.S. government for construction, operation, and maintenance of the irrigation system.33 Two irrigation districts emerged: the El Paso County Water Improvement District №1 (“EPCWID”) in west Texas, and the Elephant Butte Irrigation District (“EBID”) in southern New Mexico.34 Thereafter, the districts entered into contracts with the U.S. government to share the costs of the Project based on the ratio of land acreage allocated for irrigation: 88,000 acres for southern New Mexico (approximately 57 percent), and 67,000 acres for Texas (approximately 43 percent).35 See App. 10. This compromise remains in force today, though the passage of an interstate water compact between Colorado, New Mexico, and Texas and several recent disputes serve to complicate the nature of the rights to this segment of the Rio Grande.

B. The Rio Grande Compact of 1938

The 1895 embargo, coupled with the restrictions imposed by the Project, created resentment among the party states themselves and toward the federal government. These states desired the right to more freely access the Rio Grande’s water and to build reservoirs outside of the Project.36 As a result of these sentiments, Colorado, New Mexico, and Texas began to negotiate a regional water compact to equitably distribute water from the Rio Grande. Eventually, after a temporary Rio Grande Compact of 1929, the states reached an agreement, Congress ratified the agreement, and the Rio Grande Compact of 1938 resulted.37

The Compact, however, did not address the apportionment of the 100-mile stretch of the Rio Grande between Elephant Butte Dam and the New Mexico-Texas border.38 Instead, the history of the negotiations surrounding the Compact suggests that the omission was intentional, reflecting unwillingness on the part of Texas to see the Compact override existing rights arising under the Project. During the final days of negotiation among the three states, representatives for Texas questioned the proposed Compact’s silence regarding distribution of water from this stretch of river.39 In response to a letter from a Texas representative seeking clarity on the issue, Clayton, commissioner for the State of Texas, responded, “the question of the division of the water released from Elephant Butte Reservoir is taken care of by contracts between the districts under the Rio Grande Project and the Bureau of Reclamation.”40

When the states ratified the Compact in 1938 and Congress consented to it in 1939, by virtue of its silence, the Compact adopted the Project’s allocation scheme between New Mexico and Texas water districts. Ironically, as Texas currently challenges New Mexico’s consumption of Project water allocated to Texas, Mr. Clayton included in his response to Mr. Smith of Smith and Hall, a law firm retained by lower river water users, “there will never be any difficulty about the allocation of this water”.41

With the passage of the Compact, it empowered Reclamation as the Project manager to operate the Project as a single entity and to distribute water stored in Elephant Butte Reservoir to the Project irrigation districts.42 Additionally, the Compact tasked commissioners from each Compact state with the management of each state’s share of Project water under the terms of the Compact. This operational structure more or less remains in force today and each state’s commissioner manages their respective state’s share pursuant to the Compact.43 However, beginning in the late 1970s Reclamation’s managerial position began to erode as it yielded significant operational control of the Project water to state officials and the Project irrigation districts. This fundamental shift in Reclamation’s managerial control contributed significantly to the emergence of the current dispute over the operation of the Project and Texas’ eventual plea before the U.S. Supreme Court, a dynamic discussed in further detail below.

Nonetheless, in Colorado and New Mexico, each state’s State Engineer serves as the Compact commissioner.44 Whereas, the Texas Compact commissioner is not the State Engineer, but is appointed by “[t]he governor, with the advice and consent of the [Texas] senate.”45 Each state’s Compact commissioner serves a central role in representing the interests of each Compact state and in coordinating the management of the Project between the EPCWID, EBID and Reclamation.

III. POST-COMPACT CONFLICT LEADING THE 2008 OPERATING AGREEMENT

Despite Mr. Clayton’s assurances upon the eve of the Compact, a series of difficulties concerning the allocation of the water from the Rio Grande surfaced in the decades since the Compact’s passage into law. Although few problems emerged in the 1940s during the initial years of the Compact with Project storage in 1949 reaching “815,700 acre-feet, including 130,000 acre-feet of credit water,” a severe drought struck the region in 1951 and lasted until 1978.46 In response to increasing surface water scarcity, farmers in the Project irrigation districts began to supplement surface water with underground well water.47 See generally App. 6, App. 7 & App. 8.

During this period of drought and along with Rio Grande farmers growing development of groundwater pumping capacity, Reclamation unilaterally developed two curves charting the relationship between the annual volume of water released from the Elephant Butte and Caballo reservoirs to (1) the amount of water annually delivered to Mexico (“D2 curve”); and to (2) the amount of water diverted to Project beneficiaries (“D2 curve”). Reclamation used the two curves to project water delivery and diversion to Project farmlands, irrigation districts, and to Mexico. The D1 curve projected water

deliveries “to the U.S. farmlands and water diverted to Mexico.”48 Whereas, the D2 curve projected “diversions to canal systems in the [Project] irrigation districts and Mexico.”49 Of these yearly releases, 57% would be delivered for the EBID in New Mexico and 43% would be delivered for the EPCWID in Texas. 50 See App. 10 & App. 11.

The D2 curve, besides projecting diversions available per release of Project water, also recorded historic diversions and releases from the last major regional period of drought in 1951 to 1978. The D2 curve, therefore, serves as an important proxy, measuring groundwater use from and around the Project during the regions last major period of drought. And, in light of the current period of drought, beginning 2003, this proxy serves a particularly significant function because it exhibits New Mexico’s increased groundwater exploitation from the Project and the surrounding hydrologically- connected lands. See App. 12 & App. 13.

Until the late 1970s, Reclamation operated the Project as a single entity, utilizing the D1 and D2 curves as guidance for its Project opperations.51 However, a series of events led to Reclamation’s relinquishment of much of its managerial control over the Project. First, in the wake of Reclamation’s highly publicized Teton Dam failure and amidst growing national criticism of Reclamation, particularly highlighted by President Jimmy Carter’s “hit list” of Reclamation water projects and his criticism of the Bureau’s wasteful spending, Reclamation’s budget was cut several times in the late 1970s.52 These cuts continued, to an even greater extent, under President Reagan into the 1980s.53

As a result of these various budget-cuts, the federal government “ultimately relegated [Reclamation] to specifying only the releases from the Caballo Reservoir and forced the two irrigation districts to manage the diversions.”54 Second, during the years of 1979 and 1980 the EPCWID and EBID paid off their federal construction loans for the Project. Having squaring up with the federal government, the irrigation districts became emboldened with more independence towards the future management of their respective Project operations. 55

In regards to these various events, an operating agreement between Reclamation and the irrigation district became the primary means by which Reclamation would distribute Project waters among the irrigation districts.56 Although Reclamation used the D2 curve as its basis for allocation among the Project districts, in the absence of an operating agreement, and although Reclamation proposed that the D2 curve be incorporated into an operating agreement between Project parties, the Project districts refused assent to Reclamation’s proposal.57

With no operating agreement in place, a lawsuit, City of El Paso v. Reynolds, emerged from the void in 1983.58 This case arose after the EBID, pursuant to New Mexico statute, submitted “326 applications for permits to appropriate up to 296,000 acre-feet of water annually from the Lower Rio Grande and Hueco Basins.” 5960 However, the New Mexico State Engineer denied all of EBID’s applications “on the ground that Article XVI, §§ 2 and 3 of the New Mexico Constitution preclude[d] utilization of New Mexico groundwater outside the borders of the state.”61 Thereafter, the City of El Paso filed suit against the New Mexico State Engineer, the New Mexico Attorney General, and the New Mexico District Attorney.62 EBID, the City of Las Cruces, and Stahmann Farms, Inc. also intervened as defendants.63 The City of El Paso claimed that Article XVI, §§ 2 and 3 of the New Mexico Constitution violated the Commerce Clause of the U.S. Constitution.64

After a trial, the U.S. District Court for the District of New Mexico held in favor of El Paso. Specifically, the court held Article XVI, §§ 2 and 3 of the New Mexico Constitution, expressly prohibiting the extraterritorial transportation of groundwater, was facially discriminatory and failed under the court’s application of strict scrutiny.65 The court elaborated that the subject provisions of New Mexico constitution were not narrowly tailored to serve a legitimate local, state purpose and adequate alternatives existed which would not discriminate against out-of-state interests to such a degree.66

After the District Court’s judgment, El Paso settled the litigation and agreed it would endeavor to use alternative Texas water resources before seeking water resources from New Mexico. 67 Though this lawsuit seemingly highlighted the apparent need for

an operating agreement between Reclamation and the Project irrigation districts, a period of plentiful water arrived in 1979 and lasted until 2002, thus relieving demands on the parties to formulate a mutually acceptable operating agreement.

Despite the relief provided by Mother Nature, the pressure to negotiate an operating agreement resurfaced in 1997. Apprehensive that EPCWID and EBID, having satisfied their construction-loan debts, would assert legal control of their respective portions of the Project, the Bureau of Reclamation filed a quiet title suit in the U.S. District Court of New Mexico to determine its legal rights in the Project.68 In response, EPCWID filed a counterclaim alleging that the Bureau failed to account for New Mexico’s groundwater pumping and that this failure resulted in an inequitable allocation of Project water.69

The case was sent to mediation; but, the mediation failed to result in a settlement as the negotiations collapsed and U.S. District Court dismissed the dispute without prejudice.70 In disposing of the suit, the Court decided it would defer to a state stream adjudication in New Mexico for a resolution of the parties’ legal rights in the Project.71 The U.S District Court retained jurisdiction in the event the parties decided their respective interests were not being properly accommodated in the stream adjudication.72

With no operating agreement in place and after the dismissal by the U.S. District Court, “the attorney general of Texas and New Mexico and their respective state legislatures got involved, potentially escalating the [dispute towards] litigation in the U.S. Supreme Court.”73 During the posturing that ensued, the New Mexico and Texas legislatures appropriated “millions of dollars to support the probable pending litigation.”74 Despite the collapse of formal negotiations in 2001 and the legal posturing between the states’ legislatures, over the next several years informal negotiations took place between the “irrigation districts and technical representative of [Reclamation]…” about a possible resolution to the conflict.75 These informal negotiations occurred “under the auspices of The National Science Foundation and the Science and Technology Center for Sustainability of semi-Arid hydrology and Riparian Areas.”76 What arose from these informal negotiations were two important issues: carry-over storage and New Mexico groundwater pumping.77

During these years of informal negotiations, a period of drought returned after 24 years when the Project districts received water levels fully meeting their respective demands. With no formal operating agreement in place, Reclamation utilized an independent “ad hoc” method of water allocation, without the Project irrigation districts’ consent: the Bureau allocated water to Mexico’s based on usable water in Project storage, and the surplus diversion was allocated to the EPCWID and EBID districts based on their

Project entitlement, 43% to the EPCWID and 57% to the EBID.78 Thereafter, during the years between 2006 and 2008 both Project-districts challenged and began to litigate the Bureau’s “ad hoc” operation of the project in Federal District court.79

However, in 2006, Texas appointed Pat Gordon, a youthful Texas tax attorney, as its Rio Grande Compact commissioner.80 Even though all Project parties were at an impasse and it seemed unlikely that these disputes would be resolved, Pat Gordon was able to bring the parties to the table.81 As a result of Pat Gordon’s tactful persuasion, an operating agreement was finally reached in 2008.82 The operating agreement incorporated the D3 curve, a curve developed by EBID in 2006. The D3 curve “tied EPCWID and Mexico allocations to project releases.” 83 The D3 curve would adjust the D2 curve in order to address the short falls seen in the diversion ratio — the ratio of total project diversions over total project releases — during the years of 2003 to 2007, years where the D2 curve feel short of predicting total project diversions as per historic releases. See App. 13.

The parties agreed that the D3 curve would be incorporated into the proposed operating agreement and that it would govern Project allocations until December 31, 2050.84 After decades without a formal operating agreement, on February 14, 2008 a settlement of the disputes between Reclamation, EBID and EPCWID resulted in an operating agreement, and the three parties and 14 New Mexican and Texas farmers signed the agreement. 85 On August 25, 2008, EBID, EPCWID agreed to dismiss their respective lawsuits. 86 The terms of the operating agreement established that EPCWID and Mexico would receive allocations per the D1 and D2 curves. EBID would receive allocations per the new D3 curve, a curve intended to protect EPCWID from New Mexico’s groundwater pumping by delivering surplus water only after ensuring that EPCWID and Mexico received their respective allocation entitlements.87

Importantly, EBID agreed to the allocation method prescribed in the operating agreement because, instead of compensating EPCWID for New Mexico’s groundwater depletions accruing since 1938, the date of the Compact, it would only require New Mexico reduce its groundwater pumping to a baseline reflecting the water shortages of 1951–1978.88 Thus, the operating agreement “grandfathered in thousands of acre-feet of New Mexico groundwater pumping.”89 On the other hand, the operating agreement appealed to EPCWID because it received protection against prospective New Mexican groundwater pumping.90 The operating agreement assured EPCWID that it would receive allocations pursuant to the D3 curve at the New Mexico-Texas border, and it gave the district the right to carryover storage. 91

With an operating agreement finally in place and with both the EBID and EPCWID gaining something from the bargain, it seemed as if the decades-long dispute to formulate an operating agreement finally resulted with an amicable compromise.

However, regional politics soon muddied the water; and, in the words of Thomas Maddock III, “stupidity is the reigning King.”92 (emphasis added).

The State of New Mexico, led by its attorney general Gary King, became displeased with the compromise incorporated in the 2008 operating agreement. And, in August of 2011, New Mexico filed suit in the U.S. District Court of New Mexico, initiating State of New Mexico v. U.S. Bureau of Reclamation, et. al.93 In its complaint, New Mexico named the United States; the Department of Interior; Kenneth Salazar, the Secretary of the Department of Interior; the Bureau of Reclamation; Michael Connor, the Commissioner of the Bureau of Reclamation; and, Filiberto Cortez, the Manager of the El Paso Field Division of the Bureau of Reclamation in El Paso, Texas as defendants.94

The lawsuit requested declaratory and injunctive relief against defendants and claimed that, by assenting to the 2008 operating agreement, the defendants illegally and wrongfully authorized the reallocation of more than 150,000 acre-feet of water annually away from New Mexico, water that New Mexico claimed it was entitled under historic Project operations.95 New Mexico argued that such reallocation harmed its sovereign taxing power, its police power and its power to manage public water supplies.96 New Mexico also challenged the long-term carry over storage provision of the 2008 operating agreement. 97

New Mexico sought declaratory relief under the Declaratory Judgment Act, challenging Defendants’ implementation of the 2008 Operating Agreement as a final agency action under the Administrative Procedure Act and the Rio Grande Compact. It argued for an injunction of the implementation of the 2008 operating agreement because it claimed the agreement violated the Water Supply Act, the National Environmental Policy Act, and section 8 of the federal Reclamation Act.98

More specifically, New Mexico claimed that 2008 operating agreement was improperly implemented in violation of the Water Supply Act of 1958, “on the grounds that is seriously affects the purposes for which the Rio Grande Project was authorized, surveyed, planned, or constructed or affects a major operational change of the Rio Grande Project without approval by Congress.” 99

New Mexico claimed that 2008 operating agreement was improperly implemented in violation of the National Environmental Policy Act because the agreement amounted to a major federal action that significantly affected the environment without proper review of its environmental effects, and that it was implemented “without appropriate consultation with New Mexico, without adequate public review of the action proposed and without any consideration of alternative actions, as required by NEPA.”100

New Mexico also alleged that 2008 operating agreement violated the Reclamation Act because it altered vested New Mexico state water rights and because it significantly changes the proportionate Project delivery requirements based on percentage of irrigable land entitled to the EBID from its historic 57% to approximately 38%.101 As a result of this reallocation of water, New Mexico claimed that it has lost millions of dollars worth of water, while unfairly benefiting Texas. 102 In an out-of-court statement made by Gary King several months after filing the above-discussed complaint, he declared that this new allocation would cause New Mexico $183 million in damages, while unfairly benefiting Texas.103

In response to the complaint, EPCWID filed motion to dismiss on October 11, 2011.104 The Federal defendants responded with a motion to dismiss on June 28, 2012.105 EBID also filed a cross-claim against Federal government alleging that it authorized the illegal release of water from the Project to Mexico in violation of the 2008 agreement.106 As of the date of this article, the Court has not ruled on the above motions.

In a brief published by representatives from EBID on April 27, 2012, the irrigation district criticized New Mexico and its Attorney General’s actions in filing suit.107 EBID argued that the Reclamation’s historic allocation method does not contemplate New Mexico’s groundwater pumping and that the 2008 operating agreement remedies and internalizes such pumping.108 EBID criticized the Attorney General for offering no alternative allocation scheme and that the scheme in place “prior to 2006 was simply not defensible.”109

EBID also challenged the Attorney General’s claims of monetary loss resulting from the operating agreement and responds that, in fact, since the implementation of the operating agreement agricultural production in Dona Ana County, as measured by receipts from non-livestock farming, increased every year since the operating agreement, except for 2008, a year were prices and demand for pecans — one of the primary crops of the Lower Rio Grande region — were relatively low.110 See App 14.

EBID further complained that it “has received no support from New Mexico” with its cross-claim against the federal government.111 And, finally, EBID trumpeted that “the [New Mexico Attorney General] is starting a war with no clear objective or exit strategy and the impact of any damages would be against EBID members.”112

III. TEXAS V. NEW MEXICO: PENDING U.S. SUPREME COURT CASE

In light of the abovementioned suit and Texas’ frustration with the New Mexico stream adjudication’s determination of its Project rights (particularly in light of Texas’ own adjudication of rights to the Rio Grande above Fort Quitman, Texas), on January 8, 2013, Texas filed a motion for leave to file complaint accompanied by a complaint and a brief in support thereof with the U.S. Supreme Court.113

In its plea, Texas alleges that New Mexico “has ignored and undermined Texas’ rights to water from the Rio Grande Project, and has breached and continues to breach its obligations and responsibilities under the Rio Grande Compact….”114 Texas maintains that New Mexico breached the Compact by “fail[ing] to control and prevent the proliferation of post-Compact pumping of water hydrologically connected to the Rio Grande, and….[by] acquiesc[ing] in surface water diversions and failing to prevent non- permitted diversions of surface water.”115 The rights and obligations arising from the Compact are now the central issue in the dispute between Texas and New Mexico.

Texas’ complaint raises the question of whether the Compact applies to the extraction of groundwater “hydrologically connected” to the Rio Grande.116 Texas claims New Mexico has breached the terms of the Compact, and Texas frames its argument in terms of New Mexico’s breach of the Compact’s purpose and intent: Texas alleges that “New Mexico has, contrary to the purpose and intent of the Rio Grande Compact, allowed and authorized Rio Grande Project water intended for use in Texas to be intercepted and used in New Mexico.”117 Texas claims New Mexico has allowed its citizens to intercept and withdraw “Rio Grande Project return flows and other

underground water that is hydrologically connected to the Rio Grande….”118 Texas asserts that New Mexico’s actions violate the United States’ “superior rights, including the right to deliver that water to Texas.”119

Texas, therefore, requests the U.S. Supreme Court interpret Texas and New Mexico’s rights under the Compact; and, it asks the Court to “declare the rights of the State of Texas to the waters of the Rio Grande pursuant to and consistent with the Rio Grande Compact and the Rio Grande Project Act.”120 Texas prays for the Court to issue a “Decree commanding the State of New Mexico, its officers, citizens and political subdivisions, to: (a) delivery the water of the Rio Grande in accordance with the provisions of the Rio Grande Compact and the Rio Grande Project Act; and (b) cease and desist all actions which interfere with and impede the authority of the United States to operate the Rio Grande Project.”121 Texas asks the Court to “[a]ward the State of Texas all damages and other relief, including pre- and post- judgment interest, for the injury suffered by the State of Texas as a result of the State of New Mexico’s past and continuing violations of the Rio Grande Compact and the Rio Grande Project Act[.]”122 And, finally, Texas requests the Court “[g]rant all other such costs and relief, in law and equity, that the Court deems just and proper.”123

In support of it plea, Texas explains that a recent ruling by a New Mexico court in a stream adjudication and the ongoing litigation over the 2008 operation agreement support the Court’s exercise of jurisdiction: (1) Texas quarrels that its rights are not being adequately addressed in the New Mexico state stream adjudication, State of New Mexico v. Elephant Butte Irrigation District, and (2) Texas claims New Mexico’s initiation of State of New Mexico v. U.S. Bureau of Reclamation, et. al., wherein New Mexico challenged the 2008 operating agreement, constitutes grounds compelling U.S. Supreme Court review; and, (3) Texas argues that New Mexico’s actions have violated Texas full faith and credit pursuant to Article IV, §1 of the U.S. Constitution.124

In State of New Mexico v. Elephant Butte Irrigation District, Judge James Wechsler recently ruled in favor of New Mexico’s motion to dismiss a claim asserted by the U.S. to groundwater, and the court denied the United States’ motion for summary judgment, in which it asked the adjudication court to define Project water as “(1) all the surface water in the lower Rio Grande, and (2) water in the ground hydrologically connected to surface waters in the lower Rio Grande.”125 In doing so, Judge Wechsler held that the rights of the Project are limited only to surface water and do not encompass hydrologically connected groundwater.126

Concerning this state water adjudication, Texas claims, in its plea to the U.S. Supreme Court, that New Mexico has failed to remedy harm to Texas and Project beneficiaries caused by New Mexico’s interception of return flow to the Project and by New Mexican groundwater pumping.127 Texas argues that, instead of addressing Texas’ concerns about the unsustainable groundwater pumping throughout southern New Mexico, New Mexico’s actions in the adjudication represent an attempt by New Mexico “to make permanent its unlawful actions….”128 Texas, in critique of New Mexico’s actions, claims that New Mexico “is asserting and advancing novel theories of law that are contrary to rights held by the United States for the Rio Grande Project as well as the Rio Grande Compact.”129

As alluded to earlier, Texas underscores that New Mexico’s actions in its own stream adjudication are even more troubling in light of Texas’ own stream adjudication of the Rio Grande above Fort Quitman. An adjudication that concluded in 2007. Texas highlights this in its complaint, specifying that, “[c]onsistent with the provisions of the Rio Grande Project Act and the Rio Grande Compact, the State of Texas has adjudicated the Rio Grande above Fort Quitman, Texas, entering into a final decree in 2006 binding on the United States and EPCWID.”130 Texas explains that, “[in furtherance of the 2006 decree, it] issued a Certificate of Adjudication in 2007 allowing for diversions of water

sufficient to meet Rio Grande Project and Rio Grande Compact diversions and use rights in Texas.”131 Texas contends that this Certificate of Adjudication presumes that New Mexico will comply with the Rio Grande Project Act and the Compact.132 “Absent New Mexico’s compliance with the Rio Grande Project Act and the Rio Grande Compact[,]” Texas elucidates that “….the judicial decree has no practical effect, and cannot serve as a source of legal stability to those in Texas who obtain water from the Rio Grande Project.”133 Arguing that New Mexico has not afforded Texas’ adjudication and final

decree full faith and credit, Texas alleges in it complaint New Mexico’s actions have violated the U.S. Constitution. 134

In reference to State of New Mexico v. U.S. Bureau of Reclamation, et. al., Texas contends that in challenging the 2008 operating agreement, “New Mexico is advancing novel interpretations of the Rio Grande Compact in an effort to wrest operational control of the Rio Grande Project from the United State..”135 New Mexico’s actions in challenging the 2008 operating agreement, as Texas argues, represent an effort to sabotage Reclamation, EBID and EPCWID’s “attempt to address at least a portion of the problem created by New Mexico’s unlawful use of Rio Grande Project water…”136

Early in 2013, just weeks after Texas filed its complaint, representatives for the parties to the dispute began publishing statements to the press. Pat Gordon, a Texas representative on the Rio Grande Commission and the man who spearheaded the effort to formulate the 2008 operating agreement, claimed that New Mexico has allowed its

citizens to sink more than 2,500 wells that draw water from the Rio Grande below Elephant Butte.137 On the other side of the dispute, New Mexico assistant attorney general Sarah Bond asserted that Texas’ plea for U.S. Supreme Court review is groundless because farmers in both New Mexico and Texas have long relied on groundwater pumping during droughts. She contends that “[n]one of the actions of New Mexico farmers or river pumpers have been in violation of the Compact.”138 Likewise, New Mexico attorney general Gary King released a statement proclaiming, “Texas is trying to rustle New Mexico’s water and is using a lawsuit to extort an agreement that would only benefit Texas while destroying water resources for hundreds of thousands of New Mexicans.”139

After Texas’ plea to the U.S. Supreme Court, New Mexico filed a response brief in opposition to Texas’ motion on March 11, 2013.140 In it, New Mexico argues that Texas failed to allege that New Mexico violated the express terms of the Rio Grande Compact, that the Supreme Court should not exercise jurisdiction because ongoing litigation offers adequate alternative fora to resolve the claims raised by Texas, and that Texas has failed to join the United States, who New Mexico argues, is an indispensible party to the suit.141 Further, New Mexico dismisses, as frivolous, Texas’ claim New Mexico’s actions in the stream adjudication violate the Full Faith and Credit Clause of the U.S. Constitution.142

Colorado, a signatory state of the Rio Grande Compact, also filed a motion in opposition for leave to file complaint on March 11, 2013.143 In its motion, Colorado takes “[no] position [and does not respond to] Texas’ specific allegations.”144 Colorado states that “[it] cannot determine whether and to what extent Texas’ Brief in Support of

Motion For Leave to File Complain and Complaint raise an actual controversy for [the Supreme Court] to consider.” But, Colorado opposes Texas motion by stating, “[i]t is Colorado’s position that states should avoid litigation of compact issues whenever possible.”145

Thereafter, on March 22, 2013 Texas filed a reply brief addressing New Mexico’s response.146 In summary, Texas argues, “New Mexico seeks to avoid [the Supreme Court’s] interpretation and enforcement of the Rio Grande Compact,” and Texas then goes on to present “at least four reasons” why the Supreme Court should reject New Mexico’s opposition: (1) Texas argues that New Mexico’s response demonstrates that the two parties hold “fundamental differences regarding the interpretation of Texas’ rights and New Mexico’s obligations under the Compact”; (2) Texas characterizes New Mexico’s response as principally addressing the case’s merits and contested issues of fact, which Texas claims “are not part of the criteria for assessing a motion for leave to file a complaint”; (3) Texas asserts that the U.S. Supreme Court is the only appropriate forum to “resolve the issues tendered and the relief sought by Texas”; and, (4) Texas contests New Mexico’s claim that Texas failed to join the United States, who New Mexico argues is an indispensable party.147 Additionally, Texas retorts New Mexico’s assertion that Texas’ Full Faith and Credit Clause argument is groundless. Several parties have also filed briefs of amicus curiae. Hudspeth County Conservation and Reclamation District №1, the City of El Paso, and EPCWID each filed an amicus brief in support of Texas’ motion for leave to file complaint; and the City of Las Cruces has filed an amicus brief opposing Texas’ motion for leave to file complaint.148 Additionally to note, the Supreme Court usually puts a lot of stock into the Solicitor General’s position in terms of interstate water disputes, however, although the Court has invited the Solicitor General to file a brief expressing the views of the United States, thus far the Solicitor General has not accepted the Court’s invitation.149

IV. LEGAL ANALYSIS OF THE PENDING CONTROVERSY BEFORE THE U.S. SUPREME COURT

In deciding whether to exercise jurisdiction and hear the case, the U.S. Supreme Court must decide three issues. First, it must decide whether the dispute at issue here is really between two states. Second, the Court must consider the “nature of the interest of the complaining State”.150 And, third, the Court must consider “the availability of an alternative forum in which the issue tendered can be resolved.”151 Each issue is discussed, in turn, below.

A. Actual Dispute Between Two Sovereigns?

Pursuant to Article III of the U.S. Constitution, “[t]he judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority….to controversies between two or more states….” and pursuant to 28 U.S.C. § 1251(a), “[t]he Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.”152 To exercise jurisdiction as provided under these provisions, the Court must find that a genuine controversy exists between two or more states, and it must find that the controversy is between two sovereigns, rather than a dispute between private parties.

i. Texas’ Arguments

Concerning the first issue, whether the dispute is really between two states, Texas argues that this condition is satisfied. Specifically, Texas quotes language from a previous 1983 ruling involving a dispute between Texas and New Mexico, arguing that the Court’s jurisdiction “extends to a suit by one State to enforce its compact with another State or to declare rights under a compact.”153 In line with this language, Texas further contend that “it is necessary for the Court to exercise its original jurisdiction here to declare and enforce the rights of the State of Texas under the Rio Grande Compact.”154

In support of the above arguments, Texas references three previous U.S. Supreme Court cases as supporting authority. First, in the 1983 ruling Texas v. New Mexico, Texas sought the Court’s exercise of its original jurisdiction to resolve a dispute concerning the Pecos River Compact.155 Article III(a) of the Peco River Compact provided that New Mexico shall “not deplete by man’s activities the flow of the Pecos River at the New Mexico-Texas state line below an amount which will give to Texas a quantity of water equivalent to that available to Texas under the 1947 condition.”156 Congress ratified the Compact in 1949.157 As the above-quoted provision suggests, the Compact did not explicitly identify a division of water between the two States, rather it required New Mexico to deliver the equivalent of the water it received “under the 1947 condition.”158 A dispute arose after the two States’ appointed representatives to the Pecos River Commission, one from Texas and one New Mexico, could not agree to the date on which the dispute arose in order to calculate damages owed to Texas.159 Thereafter, Texas sought a decree from the Supreme Court commanding that New Mexico comply with the Compact and deliver water it owed to Texas.160 The Supreme Court exercised jurisdiction over the case and in doing so it opined: [t]here is no doubt that this Court’s jurisdiction to resolve controversies between two States U.S. Const. Art. III, § 2, cl. 1; 28 U.S.C. § 1251(a)(1), extends to a properly framed suit to apportion the waters of an interstate stream between States through which it flows.161 Citing the following excerpt language from a 1907 case, Virginia v. West Virginia, the Supreme Court continued, “[our jurisdiction] also extends to a suit by one State to enforce its compact with another State or to declare rights under a compact.”162

Texas then cites a 1995 case, Kansas v. Colorado, as authority supporting its plea for the Supreme Court.163 In this case, Kansas sued Colorado to enforce provisions of the Arkansas River Compact.164 Particularly, Kansas claimed that Colorado violated Article IV-D, which stated:

This Compact is not intended to impede or prevent future beneficial development of the Arkansas river basin in Colorado and Kansas by federal or state agencies [sic] Provided, That the waters of the Arkansas river, as defined in Article III, shall not be materially depleted in usable quantity or availability for use to the water users in Colorado and Kansas under this Compact by such future developments or construction.165 (emphasis added).

Additionally, in this case, the parties operated under a 1980 Operating Plan which expressly stated, “[a]doption of this resolution does not prejudice the ability of Kansas or of any Colorado ditch to object or to otherwise represent its interest in the present or future cases or controversies before the Administration or in a court of competent jurisdiction.”166 Even though Colorado objected to the Supreme Court’s exercise of jurisdiction, the Supreme Court decided to exercise its jurisdiction.167

Texas finally cites Oklahoma and Texas v. New Mexico, where Oklahoma and Texas brought an action against New Mexico after a dispute arose over the interpretation of the Canadian River Compact.168 New Mexico, Oklahoma, and Texas entered into the Canadian River Compact in 1951 and Congress consented to it in 1952.169 The dispute concerned the interpretation of the term “conservation storage” in the Compact, and the Supreme Court decided to exercise its jurisdiction.170

ii. New Mexico’s Arguments

New Mexico, on the other hand, argues that the Supreme Court should not exercise jurisdiction because “Texas’ claims are not based on the express terms of the Compact.”171 New Mexico cites a 1981 case, Maryland v.

Louisiana, for the proposition that the Supreme Court “has construed its jurisdiction as obligatory ‘only in appropriate case.’”172 Then, New Mexico cites Louisiana v. Texas, a 1900 case, for the following language as support for its position: “[t]his Court’s original jurisdiction is of so delicate and grave a character that it was not contemplated that it would be exercised save when the necessity was absolute and the matter in itself properly justiciable.”173 In Maryland v. Louisiana, “several States, joined by the United States, the Federal Energy Regulatory Commission (FERC), and a number of pipeline companies, challenge the constitutionality of Louisiana’s tax on the ‘first-use’ of any natural gas brought into Louisiana which was not previously subjected to taxation by another State or the United States.”174 Although New Mexico cites this case for the proposition that the Supreme Court should only exercise its “jurisdiction as obligatory only in appropriate cases,” the Supreme Court actually decided to affirmatively exercise its original jurisdiction.175 (internal quotation marks omitted)

Louisiana v. Texas, the second case New Mexico cites as authority for the Supreme Court to exercise caution in its exercise of its original jurisdiction, is a case rendered before the Supreme Court expanded the Interstate Commerce clause during the New Deal to its current regulatory breadth in its famous 1942 Wickard v. Filburn decision.176 In Louisiana v. Texas, the Supreme Court refused to invalidate a trade embargo imposed by Texas on trade with Louisiana in an effort to stop the proliferation of yellow fever.177

New Mexico then cites three cases between states where the Supreme Court refused to exercise its original jurisdiction. First, New Mexico cites the 1976 case, Arizona v. New Mexico.178 In this case, Arizona sought the Supreme

Court’s exercise of jurisdiction to determine whether an electrical energy tax imposed by New Mexico violated the interstate commerce clause.179 The Supreme Court declined to exercise its original jurisdiction because it ruled a proceeding in a state court afforded parties an adequate alternative forum for the resolution of the dispute.180

Second, New Mexico cites a 1981 case, California v. West Virginia, for support of its argument that the Court should deny Texas’ request.181 In this case, California sought Supreme Court review of a breach contract concerning athletic contests between two of the States’ universities.182 Here, the Supreme Court refused to exercise jurisdiction and denied California’s motion.183

Third, New Mexico cites a 1988 case, Louisiana v. Mississippi, for support.184 In this case, “Louisiana intervened in a dispute between private parties over the ownership of land on an island in the Mississippi River, claiming that the land was in that State.”185 Louisiana sought Supreme Court review pursuant to 28 U.S.C. § 1251(a).186 The Supreme Court denied Louisiana’s request.187

New Mexico then references Pennsylvania v. New Jersey, stating that the “Court’s original jurisdiction is reserved for those exceptional circumstances where there where there is a direct controversy between two states regarding assertion of their sovereign interests.”188 In this 1976 case, the Supreme Court refused to exercise jurisdiction when Pennsylvania, New Jersey, Maine, Massachusetts, and Vermont sought Supreme Court review over a New Hampshire “beggar-thy-neighbor” tax.189

iii. How will the Supreme Court likely rule?

Analyzing this first prong, Texas looks like it will satisfy the preliminary question whether the controversy is in fact between two sovereigns. Although New Mexico has a colorable argument that Texas has not breached the express terms of the Compact, New Mexico seems to focus this argument towards the next two issues to be discussed (whether the dispute between the States is serious and dignified and whether there exists an available and adequate alternative forum to resolve the dispute). Further, the cases that New Mexico cites under this first prong are all factually distinguishable from the present controversy, and they are not cases involving interstate river compacts. Moreover, the Supreme Court seems treat interstate water disputes as the prototypical type of case that generally fulfills this prong.

B. Does the Nature of the Interest of Texas’ Claims Present with the Requisite Seriousness and Dignity so as to Compel the Supreme Court’s Exercise of Jurisdiction?

Under the second prong of the its test, the Court considers the “nature of the interest of the complaining State.”190 In its consideration, the Court focuses on the “seriousness and dignity of the claim.” 191 The Court will exercise jurisdiction only if the Court deems the dispute a serious dispute between States and only if the Court deems dignified the grievances adduced by the complaining state.

i. Texas’ Arguments

Under this prong, Texas argues that disputes of the type it complains are “the archetypal dispute that can only be resolved by [the Supreme Court].”192 And, Texas goes on to cite language from the 1983 Texas v. New Mexico asserting, “[t]he model case for invocation of this Court’s original jurisdiction is a dispute between States of such seriousness that it would amount to a casus belli if the States were full sovereign.”193 Texas then claims, “New Mexico’s prior and ongoing violations of the Rio Grande Compact, if not remedied, will continue to cause direct, immediate, grave and irreparable injury to Texas.”194 Texas further asserts, “if Texas and New Mexico were fully sovereign, New Mexico’s intentional violations of the Rio Grande Compact would amount to a casus belli. An injury of this kind implicates this Courts jurisdiction.”195

While describing New Mexico’s actions in terms of Texas’s claim that New Mexico has breached the Compact, Texas couches its argument in terms of the Compact’s “purpose and intent.” Likewise, it argues that New Mexico’s actions equate to a breach of the Compact because New Mexico’s actions have breached the purpose and intent of the Compact. Thusly, Texas explains that “[a] fundamental purpose of the Rio Grande Compact is to protect the Rio Grande

Project and its operations under the conditions that existed in 1938 at the time the Rio Grande Compact was executed.”196 Texas then lists what it sees as the fundamental premises under which Texas entered into the Rio Grande Compact: (a) the operation of the Rio Grande Project by the United States, and the Rio Grande Project’s allocations to Texas, were recognized and protected by the Rio Grande Compact; (b) New Mexico was required to make deliveries into Elephant Butte Reservoir to ensure that the United States could continue to operate the Rio Grande Project, and thereby provide for deliveries of water from the Rio Grande Project as had been previously authorized; and

C)New Mexico would not allow the Rio Grande project water allocated by the United States to Texas to be intercepted above the Texas state line for use in New Mexico.197

With these fundamental premises in mind, Texas then argues that “[u]nless the United States’ operation of the Rio Grande Project is Protected….Rio Grande Project deliveries of water to southern New Mexico, Texas and Mexico cannot be assured, and the rights of Texas under the Compact cannot be protected.” In support of its claim that New Mexico has violated the “purpose and intent” of the Compact, it its Complaint, Texas lists various provisions of the Compact, noting that their “terms reflect the interconnected nature of the Rio Grande project and the Rio Grande Compact.” In essence, Texas attempts to bring the Project into the purview of the Compact by highlighting the interrelated nature of both the Project and the Compact.

Texas continues its allegations by maintaining that New Mexico’s actions have interfered with the operation of the Project and upset the purpose and intent of the Compact to protect the Project. It elaborates its argument professing, “the Rio Grande Compact is predicated on the understanding that delivery of water at the New Mexico–Texas state line would not be subject to additional depletions beyond those that were occurring at the time the Rio Grande Compact was executed.”198 Texas contends that New Mexico’s unauthorized diversions of surface water and hydrologically connected groundwater have injured Texas.199 Texas suggests that New Mexico’s extraction of Rio Grande water has altered the basic circumstances that exist when Texas entered into the Compact in 1938.200 Therefore, Texas argues that New Mexico has violated the Compact and its purpose and intent, and Texas emphases that “[t]he relationship between the Rio Grande Project authorization and the Rio Grande Compact present unique issues that only this Court can resolve.”201

ii. New Mexico’s Arguments

New Mexico, however, retorts with several arguments: New Mexico argues that Texas has not alleged a violation of the express terms of the Compact; New Mexico argues that the Texas’ claims do not arise under the Compact, but rather under the Project; and, as Project rights, New Mexico contends they are appropriative rights “protected from injury under state law.”202

In support of its claim that Texas has not alleged a violation of the express terms of the Compact, New Mexico argues that its delivery obligations

only require water be delivered into Elephant Butte Reservoir, not to the New Mexico-Texas state line.203 In support of this contention, New Mexico insists that “the Compact drafters knew how to craft a state line delivery obligation and did so for Colorado. ‘The obligation of Colorado to deliver water in the Rio Grande at the Colorado-New Mexico State Line, measured at or near Lobatos….’ is clear.”204 New Mexico then, by way of comparison, cites the language of Art. III of the Compact. New Mexico emphasize that the Compact only requires New Mexico deliver water into Elephant Butte Reservoir, not to the New Mexico- Texas state line. 205

Then, New Mexico declares, “the plain language of the Compact describes the injuries the States agreed were reserved to raise in the future.”206 New Mexico thereafter quotes Art. XI of the Compact, which follows:

New Mexico and Texas agree that upon the effective date of this Compact all controversies between said States relative to the quantity or quality of the water of the Rio Grande are composed and settled; however, nothing herein shall be interpreted to prevent recourse by a signatory state to the Supreme Court of the United States for redress should the character or quality of the water, at the point of delivery, be changed hereafter by one signatory state to the injury of another. (emphasis added)

New Mexico contends that because Texas has not alleged a change in the “character or quality of the water, at the point of delivery….to the injury of another…”, therefore, Texas has failed to plead a cognizable Compact breach. 207 Moreover, New Mexico insists that Texas’ complaint requests the U.S. Supreme Court to “insert new terms into the Rio Grande Compact.”208 New Mexico explains that the Compact was silent about Project rights, and New Mexico attests that, under the Reclamation Act, Texas’ rights amount to appropriative rights arising under New Mexico State law and Reclamation law.209 Thus, New Mexico reiterates that Texas’ rights are not within the purview of the Compact. In further support of its contention, New Mexico quotes §383 of the Reclamation Act:

Nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws….210

New Mexico then proceeds with its argument by citing language in the case City of Albuquerque v. Reynolds for the case’s proclamation that New Mexico state law embraces the doctrine of prior appropriation as the method of determining the validity of a water right.211

Thereafter, New Mexico attacks Texas’ contention that the Compact’s purpose “is to protect the Rio Grande Project and its operations under the conditions that existed in 1938 at the time the Rio Grande Compact was executed.”212 Arguing that the Compact contains no provision requiring its signatories to “assure maintenance of a 1938 condition at the Texas-New Mexico state line[,]” New Mexico further attacks the polemic set forth in Texas’ plea. 213

New Mexico references language from several provisions included in the temporary Rio Grande Compact of 1929.

Then, New Mexico draws attention to the absence of these provisions in the 1938 Compact. New Mexico uses these omissions as support for its contention that Texas has not alleged a violation of the express terms of the Compact. Likewise, New Mexico also employs use of the inclusio unius est exclusio alterius cannon of statutory interpretation to support its argument. In the temporary Compact, New Mexico points out that it “explicitly references flows ‘between Elephant Butte Reservoir and the lower end of the Rio Grande Project.’”214 New Mexico then presents that no such provision exists in the subsequently enacted 1938 Compact. Following the same line of reasoning, New Mexico stresses that Art. VII (b) of the 1929 temporary Compact “contained a broad and general protection of the status quo in each state.” New Mexico quotes the following language from that provision:

The commission…shall equitably apportion the waters of the Rio Grande as of conditions obtaining on the river and within the Rio Grande Basin at the time of the signing of this compact…215 (emphasis added)

In accordance with its reading of the prior-discussed provisions, New Mexico argues that there is “no comparable provision in the 1938 Compact.” 216

New Mexico continues criticizing Texas’ reading the Compact as too broad and in attempt to impermissibly read “purpose and intent” into the express terms of the Compact.217 New Mexico cites language from Texas v. New Mexico as support:

Congressional consent transforms an inter-state compact….into a law of the United States. One consequence of this metamorphosis is that, unless the compact to which Congress has consented in somehow unconstitutional, no court may order relief inconsistent with its express terms. 218 With the above principals in mind, New Mexico cites Art. XII of the temporary 1929 Compact:

New Mexico agrees with Texas, with the understanding that prior vested rights above and below Elephant Butte Reservoir shall never be impaired hereby, that she will not cause or suffer the water supply of the Elephant Butte Reservoir to be impaired by new or increased diversion or storage within the limits of New Mexico unless and until such depletion is offset by

increase drainage return.219

New Mexico stresses that the 1938 Compact contains no such provision and that the absence of such language as included in the 1929 Compact supports its contentions that Texas arguments attempt to impermissibly alter the express provisions contained in the Rio Grande Compact.220

New Mexico couches its argument in the plain language of the Compact

and it attempts to draw the Court’s attention to the changes in the 1938 Compact as compared to the temporary 1929 Compact. New Mexico cites these changes as support for its professed reading of the Compact and its claim that Texas has failed to allege an express breach of the Compact’s terms. Whereas, Texas suggest the Court read the Compact’s terms more broadly with an eye towards the purpose and intent underlying the Compact. In its response to New Mexico’s above arguments, Texas contends that New Mexico’s arguments in disagreement with Texas’ reading on the Compact only further highlight the need for the Court’s exercise of jurisdiction. Specifically, Texas argues that the divergence in each state’s reading of the Compact only further highlights the fundamental differences each state has in it interpretation of the Compact.221

iii. How will the Supreme Court likely rule?

Generally speaking, how the Court determines this issue will likely be outcome determinative in whether it decides to exercise jurisdiction. And, the arguments presented by New Mexico under this prong, in my mind, represent its strongest. Since New Mexico can point to the plain language of the Compact as requiring it deliver water only to Elephant Butte Reservoir, it has a strong argument that the Project is simply exempt from the Compact’s express terms. If New Mexico can convince the court on this point, it can then argue state law and the Reclamation Act govern the contracts entered into by the irrigation districts, not the Compact.

However, if Texas can successfully convince the Court to accept its arguments regarding the fundamental purpose and the intent of the Compact then Texas arguments may very well operate to satisfy this prong. Moreover, since Texas, in its Complaint, “requests the U.S. Supreme Court interpret Texas and New Mexico’s rights under the Compact.”222 The Court may decide to exercise jurisdiction despite New Mexico’s arguments concerning the plain language of the Compact, because Texas seeks the Court’s review to clarify the parties’

divergence in interpretation of the Compact Accordingly, in its response to New Mexico’s motion, Texas contends that New Mexico’s response brief goes beyond matters appropriate for the Supreme Court to consider determining whether to exercise jurisdiction, as it impermissibly ventures into disputed factual matters. Texas explains that New Mexico’s response in fact highlights the need for Supreme Court intervention because it highlights the very problem for which Texas seeks review. In this regard, Texas may satisfy this prong since it does appear from my reading of New Mexico’s response that it ventures into factual and interpretational disputes.

New Mexico’s motion, moreover, specifically references New Mexico state law. New Mexico contends that “New Mexico law protects the United States’ Project water rights users” under state statutes and the New Mexico

constitution.223 New Mexico continues, by declaring, “New Mexico law has

never varied on this point, and continues to protect senior rights from impairment by junior water rights users.” 224 However, as I will discuss, New Mexico state law, in terms of groundwater pumping and well permitting, only arguably protects senior water right holders if the law is viewed only through a short-term lens. However, when viewed from a more global, long-term perspective, New Mexico state law in fact promotes the exhaustion of groundwater supplies by imbedding perverse incentives within the regulatory structure governing groundwater consumption.

Overall, this issue may essentially come down to what particular method and what particular scope of compact interpretation the majority of the Court is willing to employ. If the majority of the Court is unwilling to look beyond the

plain language of the Compact, it may likely rule that Texas has failed to satisfy this prong. However, if the majority of the Court is willing to look beyond the plain language of the Compact and into the purpose and intent of the Compact, and if the majority recognizes the inadequate protection New Mexico state law affords surface water rights holders in New Mexico against the adverse effects caused by groundwater pumping, then it will likely rule in favor of Texas under this prong.

C. Availability of an adequate alternative forum?

Under the third prong of the Court’s test, it must decide whether the claims brought by Texas against New Mexico are capable of being adequately addressed in an alternative forum.225 To exercise jurisdiction, the Court must decide that an alternative forum does not exist to provide “full relief” for Texas.226 More specifically, the Court must decided (1) whether the Rio Grande Compact Commission is capable of resolving the disputes between Texas and New Mexico, (2) whether the case New Mexico v. United States currently pending in a New Mexican Federal District Court offers an adequate forum for resolution of the dispute, and (3) whether the Lower Rio Grande Stream Adjudication has provided Texas with an adequate forum to resolve the disputed issues presented in its complaint. As one might expect, Texas argues that the commission and these two proceedings do not provide adequate forums to resolve the disputed issues presented in its complaint. And, on the other hand, New Mexico argues that despite the Rio Grande Commission’s gridlock and inability to resolve the dispute, the two ongoing cases offer appropriate fora to resolve the issues presented in Texas’ complaint and may vindicate Texas’ interests. (emphasis added).

i. Texas’ Argument

Texas argues that the Rio Grande Compact Commission and two pending cases do not provide adequate alternative fora to resolve its disputes with New Mexico.227 It support of its position, Texas relies heavily on language from a

decision rendered by the Court in a compact dispute between Texas and New Mexico from 1987.228 Texas cites a portion of the Court’s opinion stating that “[t]there is no doubt that this Court’s jurisdiction to resolve controversies between two States….extends to a suit by one State to enforce its compact with another State or to declare rights under a compact.”229

Texas continues by contending that the Court has clarified in the past that “[a] Compact is, after all, a contract,” and “[a] court should provide remedy if the parties intend to make a contract and the contact’s terms provide a sufficiently certain basis for determining both a breach has in fact occurred and the nature of the remedy called for.”230 Then, with reference to U.S. Const. art. III, §2, cl.2 and 28 U.S.C. § 1251(a), Texas asserts that the Supreme Court “is the only court [where] Texas is permitted to seek such a remedy.”231

Texas argues that the “Rio Grande Compact Commission is not an adequate alternative forum for resolution of the dispute that gives rise to this lawsuit.”232 Texas contends, “[w]hile Article XII of the Rio Grande Compact

provides the Commission with powers to ‘administer’ the provisions of the Compact, it does not endow in the Commission the power to provide a remedy for breach of the Compact.”233 Asserting that the Compact Commission does not provide an adequate dispute resolution mechanism capable of addressing the concerns it raises in it Complaint, Texas further argues for Supreme Court resolution of the dispute. 234

“Instead, [Texas argues,] Article XI recognizes that the States retain their rights to seek adjudication of allegations of breach of the Rio Grande Compact.”235 Texas then quotes Article XI of the Compact as follows:

New Mexico and Texas agree that upon the effective date of this

Compact all controversies between said States relative to the quantity or quality of the water of the Rio Grande are composed and settled; however, nothing herein shall be interpreted to prevent recourse by a signatory state to the Supreme Court of the United States for redress should the character or quality of the water, at the point of delivery, be changed hereafter by one signatory state to the injury of another.236

Under Texas’ reading of Article XI, the Court is the only adequate forum to resolve its dispute with New Mexico. Texas asserts that the Court has held in the past that “[b]y ratifying the Constitution, the States gave this Court complete judicial power to adjudicate disputes among them….and this power included the capacity to provide one State a remedy for a the breach of another.”237

Texas explains further that in Texas v. New Mexico, a similar commission as the Rio Grande Compact Commission was contained in the Pecos

River Compact, which provided a similar mechanism of resolving disputes as provided in the Rio Grande Compact.238 In that case, New Mexico asserted that the commission was the sole arbiter pursuant to the Pecos River Compact, and it argued that the Court therefore lacked jurisdiction.239

However, Texas contends that the Court did not agree with New Mexico’s position and it cites a portion of the Court’s oppinion as support:

In the absence of an explicit provision of other clear indications that a bargain to that effect was made, we shall not construe a compact to preclude a State from seeking judicial relief when the compact does not provide an equivalent method of vindicating the States’ right.240

“[T]he same reasoning applies to the present case,” Texas proclaims, explaining that the Rio Grande Compact contains no “explicit provisions or other clear indications” precluding the Court to provide relief.241 Contending that the States retain their ability to seek judicial relief from the Court, Texas maintains that Article XI of the Compact “evidences the intent of the parties to the Compact to seek relief in this Court.”242

Even if the Rio Grande Compact Commission presents an opportunity to resolve its disputes, Texas explains that, in fact, the Commission is currently incapable of resolving the dispute.243 For the Commission to act it needs a

unanimous vote.244 Currently, a unanimous vote is unattainable and, therefore, Texas argues, “resolution of the dispute through the Commission is not possible because the States are in a stalemate over threshold legal questions regarding the proper interpretation of the Compact.”245

Alleging that the Lower Rio Grande Stream Adjudication and the New Mexican Federal District Court do not offer adequate alternative forums, Texas continues its argument. In support of its argument concerning the Lower Rio Grande Stream Adjudication, Texas claims, “New Mexico has asserted and advanced novel theories of law that are contrary to the Rio Grande Compact.” Since Texas “is not otherwise subject to the jurisdiction of New Mexico state court[,]” Texas professes that the adjudication does not offer an adequate alternative forum since Texas “is not a party to the adjudication.” 246

Concerning the Federal District Court case, Texas argues, “New Mexico has raised significant issues associated with the Rio Grande Compact and its interpretation.”247 Texas then asserts, “[n]either the State of Colorado nor the State of Texas is a party to this litigation, and the State of Texas is not otherwise subject to the jurisdiction of that count.” Thusly, Texas argues that the Federal District court does not offer an adequate forum. In support of its positions, Texas excerpts a portion of the Court’s prior opinion stating, “no one State can control the power to feed or starve, possessed by a river flowing through several States.”248 Texas concludes by avowing, “since no single state can unilaterally resolve Rio Grande Compact water allocations, this dispute is only capable of resolution in this Court.”249

ii. New Mexico’s Argument

In response to the issue of whether there exists adequate alternative fora to resolve the disputes raised in Texas’ complaint, New Mexico insists that “Texas’ interests may be vindicated in ongoing cases in the Federal District Count and in the Lower Rio Grande Adjudication.”250 (emphasis added). New Mexico summarizes a portion of Texas’ complaint, which states: “neither forum can serve as an alternative to an original action before this Court because it is not a party to either action, and neither court has jurisdiction.”251 New Mexico retorts that Texas did not use the proper test.252 Rather, New Mexico avers, “…this Court has sometimes stated that an alternative forum must have jurisdiction over the parties to the dispute.”253 However, New Mexico maintains that “[the Court] has since clarified that the more pertinent inquiry is whether the other forum has jurisdiction over the issues involved.”254 New Mexico therefore claims “if the issues posed in an original complaint “can be resolved effectively by other litigation in other courts, if need be by other parties…, discretionary denials of original jurisdiction seem appropriate.”255 (emphasis added).

New Mexico then references the Court’s decision in Arizona v. New Mexico as support for it position.256 In this case, the Court denied Arizona’s plea to the Court for it to exercise jurisdiction to determine the constitutionality of a New Mexico tax on electricity “generated in state but sold to out-of-state

customers.”257 Arizona requested the Court exercise jurisdiction and hear the case. But, since three Arizona utilities had already challenged the tax in New Mexico state court, “the Court was ‘persuaded that the pending state-court action provides an appropriate forum in which the issues tendered here may be litigated.”258

New Mexico explains that the Court’s rationale in this decision was supported by the fact that “if the utilities prevailed, Arizona’s interests would be vindicated…”, if not, Arizona could then petition the Court, and “[e]ither way, Arizona’s interests would be protected.”259 Applying such a rationale to the present dispute, New Mexico argues, “the issues Texas seeks to raise before this Court have been raised by other parties in other fora with jurisdiction over those issues.” Therefore, New Mexico requests that the Court deny Texas’ motion.

New Mexico, thereafter, continues along this same line of argument. New Mexico argues that the claims presented by Texas are claims within the purview of the Project and not within the Compact. First, New Mexico addresses the Federal District Court proceeding. New Mexico asserts that Texas, in its complaint, concedes that New Mexico’s water delivery obligations only require New Mexico to deliver water to Elephant Butte Reservoir.260 Then, New Mexico criticizes Texas for then going “on to plead a cause of action arising from what happens to the water after it is delivered to Elephant Butte and before it goes to the state line.” New Mexico, alluding to its prior discussion about the issues the Court has jurisdiction over, declares “this issue does not arise from the Compact, it arises from the Project.”261

New Mexico then summarizes the challenge it filed to the 2008 operating agreement in New Mexico v. United States.262 New Mexico asserts that EPCWID is the sole party in Texas that is a Project beneficiary, EPCWID is a party to the suit, and EPCWID “is a political subdivision of the State of Texas.”263 Since Texas is not a project beneficiary and since a political subdivision of Texas represents Texas’ interests in the suit, New Mexico argues that it would be improper for the Court to exercise jurisdiction.

New Mexico then addresses the Lower Rio Grande Adjudication. New Mexico argues, “United States’ claims to Rio Grande Project Water are properly before the Lower Rio Grande Adjudication Court pursuant to 43 U.S.C. §666.” New Mexico then cites language contained in Texas’ complaint where Texas claims “that New Mexico has ‘allowed and authorized Rio Grande Project water intended for use in Texas to be intercepted and used in New Mexico’ to the

detriment of the Project.”264 (emphasis added). New Mexico contends Texas’ complaint addresses Project claims not Compact claims, and it argues since its complaint raises issues concerning the Project that the state adjudication is the proper forum for resolution of such issues.

Moreover, since the U.S., a holder of a Project right, consented to joinder in the adjudication pursuant to the McCarran Amendment265 and since it filed a statement of claim in the adjudication, New Mexico argues that the U.S. has been given an opportunity to seek redress for any injury caused by groundwater pumping in the state adjudication.266 Further, New Mexico argues that under the 1902 Reclamation Act, it has been the consistent policy of courts to defer to state water laws. 267 New Mexico claims that the adjudication “has considered the United States’ claim that state law is inadequate to protect the Project from injurious groundwater pumping.”268 But, New Mexico asserts, “the adjudication court held that the United States could not identify any actual conflict between reclamation law and state law remedies, and it has adequate remedies from any claimed injury to Project rights from junior groundwater pumpers.”

In summary, New Mexico criticizes Texas’ plea to the Court as “an attempt to circumvent the Lower Rio Grande Adjudication for the purpose of asserting before this Court the United States’ claim to water for the Project.” New Mexico claims Texas is essentially attempting to step into the shoes of the United States by asserting United State’s Project rights. Therefore, New Mexico argues that the Court should deny Texas motion because it has not joined the United State and because the U.S. has not consented to joinder.

iii. How will the Supreme Court likely rule?

Under this prong, it seems that the Court will likely side with Texas, despite New Mexico’s insistence that its own courts will provide adequate relief for Texas. And, the Court may likely characterize New Mexico’s actions as an attempt to “control the power to feed or to starve, possessed by a river flowing through several States.”269 Correspondingly, New Mexico’s arguments under this prong seem unpersuasive considering the New Mexico judges that control New Mexico courts are elected officials from the state of New Mexico. New Mexico’s claim that its Court will provide adequate relief for Texas is laughable considering Texas’s interests directly conflict with New Mexico’s. Along the same line of reasoning, Texas requests the Supreme Court exercise jurisdiction because it believes the New Mexico courts have and will further express prejudice towards Texas’ respective interests. In this light, Texas’ request seems reasonable, as Texas seeks to avoid being handcuffed by New Mexico’s substantive rules of water law. Overall, New Mexico’s presents relatively disingenuous arguments under this prong and the Court will therefore likely side with Texas.

VI. ANALYSIS OF U.S. SUPREME COURT’S LIKELY POSTJURISDICTIONAL DECISION

If Court decides to exercise jurisdiction and hear the case, it will then likely appoint a special master to determine the factual issues in question. The special master will hear arguments from the parties and then the special master will issue a memorandum concerning the factual issues of the case along with a recommendation of how to dispose of the case to the Supreme Court.

In rendering this post-jurisdictional report, the special master will likely be persuaded by the apparent and obvious conflict of interest imbedded within the current managerial structure of the Rio Grande Project. As referenced earlier, Reclamation yielded significant managerial control of the Project to the states and to the irrigation districts beginning in the late 1970s and early 1980s. Significantly, this meant that the New Mexico State Engineer controlled the permitting of new wells in the region. This change in managerial structure undermined some of the bedrock assumptions underlying the Project and thereafter underlying the Compact.

One of the most basic assumptions underlying the Project and the Compact was that Reclamation would operate the project as a single entity. Namely, it would “administer the stored surface and drain water throughout the

Project without regard to the state line…” and it would retain ownership and control of all of the Project operations.270 However, when Reclamation yielded its managerial control of the 100-mile stretch of the Rio Grande below Elephant Butte Reservoir to the irrigation districts and to state authority, the changed operational structure created a perverse incentive/conflict of interest for New Mexico.

Although “Reclamation retained ownership and control of the of the Elephant Butte and Caballo dams, the two reservoirs and the diversion dams[,]” it relinquished most of its managerial control of the Project.271 As a result, (1) “the administration of the Project changed after the districts paid off their construction debts to the United States in 1979–1980 and it is now operated as two units” and (2) the New Mexico State Engineer began to control the permitting of pumping around and adjacent to this 100-mile stretch of the Rio Grande.272

In the wake of this shift in managerial power, New Mexico began to generously offer groundwater permits with great frequency. Excessive well permitting paired with New Mexico’s judicial doctrine titled the Templeton Doctrine created an even greater perverse incentive. Although New Mexico law generally recognizes both surface water and groundwater form an interconnected system, the advent of a judicially made law created an obvious legally imbedded perverse incentive in an era of increased groundwater pumping. New Mexico courts developed an equitable doctrine, coined the Templeton Doctrine from the opinion rendered in Templeton v. Pecos Valley Artesian Conservancy District.273 This doctrine allows irrigators who cannot satisfy their water demand using solely surface water to pump groundwater to supplement their surface water rights.274 The Templeton Doctrine was crafted to “address the situation where junior wells intercept groundwater that was previously discharged to the surface, thereby depriving the senior water appropriator(s) of their water rights.”275 The New Mexico Supreme Court recently described the doctrine as follows:

To address this circumstance, the Court in Templeton fashioned an equitable remedy to allow senior surface water appropriators impacted by junior wells, to timely reassert their priority by drilling a supplemental well. Through this well the senior surface water right owner can supplement existing surface

supply, if any, by drawing upon the groundwater that originally fed the surface water supply.276

Therefore, rather than limit the groundwater pumping by junior wells in areas hydrologically connected to a senior surface water right holder’s appropriative right, the Templeton doctrine truly creates race to the bottom and a potential for a tragedy-of-the-commons-like scenario. This doctrine paired with New Mexico’s statute that mandatorily exempts domestic wells from any permitting requirement combined with the State Engineer’s willingness to grant groundwater permits, even further highlights the perverse incentives created by Reclamation’s yielding of Project managerial control.277

If the special master recognizes this pretty obvious perverse incentive imbedded within the current legal structure regulating the consumption of water from and around the Rio Grande, then the special master will likely be sympathetic to Texas’ arguments. Texas, however, risks presenting itself as hypocritical. In other words, Texas argument may not pass the smell test in light of its own state judicial doctrine.

Under Texas law, judicial doctrine treats surface water and groundwater as distinct units within dissociated hydrological systems, when in fact groundwater and surface water form a unitary and hydrologically interdependent system. Moreover, under Texas law landownership includes a cognizable property interest “in groundwater in place that cannot be taken for public use without adequate compensation guaranteed by article I, section 17(a) of the Texas Constitution.” 278 Therefore, Texas’ own state law closely resembles New Mexico’s Templeton Doctrine, and in fact it goes even further by establishing that landownership contains such a strong property right in groundwater.

Overall, these apparent weaknesses of State law only further highlight the sad state of affairs for the desert Southwest. For too long, the availability of groundwater to supplement waning supplies of surface water has been taken for granted. And, judicial doctrine has been slow if not completely unable to establish sustainable regulatory mechanisms to curb the overexploitation of regional groundwater. In this light, Texas’ pending case before the Supreme Court helps to highlight the obvious failings of many state laws regulating groundwater pumping. However, as the current drought continues to linger, groundwater supplies will be further depleted if Southwestern states do not take aggressive action. And, in this regard, Texas’ plea to the Supreme Court likely will foreshadow an era where the inadequacies in regional groundwater law become painfully apparent to the region’s economies and its citizenry.

V. CONCLUSION

Overall, lost opportunity and needless cost will likely ultimately define the pending dispute between Texas and New Mexico. In retrospect, at first the parties to the 2008 Operating Agreement proposed to re-examine and give the parties an opportunity to renegotiate the allocation method contained within the agreement every 5 years. However, perhaps partially due to the parties’ almost thirty-year inability to assent to an operating agreement, the parties agreed to reexamine the Operating Agreement only every 50 years. In the eyes of Thomas Maddock III, this was a flaw in the agreement and a missed opportunity.279

This long-term, 50 year commitment likely also contributed to New Mexico’s anger over the 2008 Operating Agreement’s redistribution of its historic Project entitlements. On the other hand, the Operating Agreement did grandfather in thousands of acre-feet of New Mexico’s illicit groundwater pumping occurring since 1938, by grandfathering in thousands of acre-feet of groundwater pumping by requiring New Mexico only restore baseline conditions of the 1951–1978 water shortages. In light of these favorable terms, New Mexico’s actions seem puzzling a best, but more likely extremely misguided.

Thereto, if Texas prevails, New Mexico will owe Texas the cumulative unauthorized groundwater pumping that has accrued since 1938, plus interest, instead of only forcing New Mexico to return to its 1951–1978 baseline. These potential damages become even more concerning to New Mexico since the Supreme Court has allowed “water interest” to accrue in previous interstate compact damage awards.280 Since New Mexico has allowed around 2,500 wells to be drilled since 1938, the damages award plus interest will be enormous if Texas prevails. Plainly speaking, if Texas prevails, New Mexico will never be able to pay this quantity of water back to Texas. This suit will potentially cost New Mexico taxpayers hundreds of millions of dollars and New Mexico farmers will suffer because New Mexico’s agricultural industries will be devastated if New Mexico’s Project water allocations are reduced by such a degree.

In the end, it is hard not to ask: what the potential benefits New Mexico sought through its challenge of the 2008 operating agreement? This question is very hard to answer. Both, Texas and New Mexico will spend tens, if not hundreds, of millions of dollars on litigation expenses, and for what gain? The litigation risks posed to New Mexico include potentially devastating economic consequences for New Mexico and defending this lawsuit will create huge expenses, expenses that New Mexican citizens will ultimately bear. After decades of expensive negotiations and legal squabbling finally resulted in the 2008 Operating Agreement, an agreement where both Texas and New Mexico gained something from its bargain, it seems as though New Mexico’s political belligerence blinded its recognition of an amicable resolution.

While this suit certainly offers an example of how regional political passions can lead to seemingly reckless actions, on a larger scale this dispute highlights the overall inadequacies of many regional and national water policies, and it likely foreshadows an era where the legal status quo will be incapable of protecting supplies of the most important and necessary element for human survival. For too long, American and the Southwestern law has treated water as essentially a free good, presumed available in essentially endless supplies. But, in the words of U.S. Senator Mark Udall, “[i]t’s tough to know the true value of water until it’s gone.”281

Even though the United States currently stands atop the globe as its economic powerhouse and although many communities in the desert Southwest have become thriving societies with decorated metropolises supported by robust economies, the future success of America and its Southwest region is not a foregone conclusion. In fact, great civilizations have collapsed because of drought and resource mismanagement. For example, several great Bronze Age civilizations collapsed because of regional climate change. These once thriving civilizations including, “the Hittite empire, the Pharaohs of Egypt, the Mycenaean culture in Greece, the copper producing kingdom located on the island of Cyprus, the great trade emporium of Ugarit on the Syrian coast and the Canaanite city-states under Egyptian hegemony” all disappeared in a short period spanning from the middle of 13th to the late 12th century BCE.282 Of particular and relevant concern, several recent studies of fossil pollens contained in sediments removed from the bottom of the Sea of Galilee indicate that these once great Bronze Age civilizations collapsed because of climate change and regional water scarcity.283 Because of drought and the inability of these Bronze Age civilizations to adapt to a changing climate, regions, which at one point were the fulcrums of the world’s most advanced societies, could no longer support such empires. These empires simply vanished, and scientific data suggests that they vanished because of increased water scarcity.

While comparing the plight of modern America civilization to a civilization from the 12th and 13th century may seem far-fetched or even absurd, in light of the overwhelming scientific consensus that climate change is real, the lessons from history should serve to highlight modern society’s continuing need for legal structures and institutions that can capably, sustainably and adaptively manage resources, particular water resources. Modern society demands leaders, institutions, and legal structures that do not run from or ignore, but rather comport with scientific rea