TEXAS, Plaintiff, v. NEW MEXICO AND COLORADO, Defendants
Interviewer(s): Samuel A. Alito, Jr., Amy Coney Barrett, Elena Kagan, John G. Roberts, Jr., Ketanji Brown Jackson, Neil Gorsuch, Sonia Sotomayor, Clarence Thomas
Interviewee(s): Lanora C. Pettit, Jeffrey J. Wechsler, Frederick Liu

John G. Roberts, Jr.: We'll hear argument next in Case 141 on the original docket, Texas against New Mexico and Colorado.

Mr. Liu.

Frederick Liu: Mr. Chief Justice, and may it please the Court:  A consent decree requires consent. The proposed consent decree in this case, however, would dispose of the United States' claims without its consent.

The decree would impose obligations on the United States without its consent.

And the decree would bind the United States to an interpretation of the R io Grande Compact that is contrary to the Compact itself.

For each of those reasons, the proposed decree should be rejected.

I want to emphasize why the United States is here today.

The Compact apportions the water below Elephant Butte.

The Compact does so by incorporating and protecting the delivery of water by the Rio Grande Project to Mexico and to two irrigation districts, one in New Mexico and the other in Texas.

The United States intervened in this case to enforce the Compact's protection of the project.

As New Mexico acknowledges, the Compact imposes on New Mexico a duty not to interfere with the Project's delivery of water. The United States claims that New Mexico is violating that duty by allowing too much groundwater pumping.

Six years ago, this Court upheld the United States' right to pursue those Compact claims, recognizing that the United States has distinctively federal interests in protecting the supply and the allocation of Project water. Those distinctively federal interests are why the United States is still here today.

In the United States' view, the proposed decree fails to address the groundwater pumping that precipitated this suit in the first place.

Instead, the proposed decree would allow that pumping to continue at unsustainable levels, and it would not stop that pumping from taking water from the Project's beneficiaries, namely, the two irrigation districts and  -- and -- and Mexico.

The proposed decree would thus fail to protect the Project or the Compact's apportionment, and that is why the United States could not give its consent to this proposed decree.

I welcome the Court's questions.

Clarence Thomas: Mr. Liu, does the United States have a claim that's independent of the states'?

Frederick Liu: Of course we do, Justice Thomas.

Clarence Thomas: What is  --what is that claim?

Frederick Liu: That's the claim that we've brought since the beginning of this case.

It's the claim that this Court held in 2018 is a claim we  --that's backed by distinctively federal interests.

It's a claim that says New Mexico is violating its delivery obligation under the Compact.

Clarence Thomas: Is that a claim that we would normally look at in an original action, or is that a claim that could be vindicated in another forum?

Frederick Liu: It's not a claim that can be vindicated in another forum.

I think it's  actually a perfect fit for this -- this Court's original jurisdiction because it is a claim  arising under an interstate commerce that we have brought against another sovereign state. That's precisely the sort of dispute that I think this Court has long held is appropriate for this Court to arise -- to exercise original jurisdiction over.

Clarence Thomas: You're an intervene -- the U.S. is an intervenor, right?

Frederick Liu: Correct.

Clarence Thomas: When you intervened, I thought our understanding was that you were  -- your  --your interest was consistent with that of the State of Texas?

Frederick Liu: Yes.

And our -- and to be clear, our underlying claims are exactly the same as they were  --

Clarence Thomas: Well, but Texas and New Mexico -- and it's rare that we have the states who actually agree on anything  -- but Texas and New Mexico have agreed.

So what -- if your interest is the same as Texas's interest, -- then why are you still here?

Frederick Liu: No, I want to distinguish between two things.

Our claims are the same.

Clarence Thomas: Yeah.

Frederick Liu: The claims are the same, but our interests have always been different.

I  mean, that was the point of the 2018 decision. If our interests were the same, then, you know, that's basically what the states said six years  ago.

The United States has the same interests, so just let them remain as amicus in this case

Neil Gorsuch: Counsel  --

Frederick Liu: -- supporting Texas.

Neil Gorsuch: -- counsel, if I might just follow up on that.

You're  --you're -- you're invoking the 2018 decision.

Frederick Liu: Right.

Neil Gorsuch: As I recall it -- and I pulled it up because it didn't quite match what I thought I heard you say -- we said that this case does not present the question whether the United States could initiate litigation to force a state to perform its obligations under the Compact or expand the scope of an existing controversy between the states.

And we  emphasized that it asserted its Compact claims seeking substantially the same relief as Texas's without Texas's objection.

That's no longer true.

None of that's true anymore.

Frederick Liu: Well, I would respectfully disagree, Just -- Justice Gorsuch.

I think we are  -- are pursuing the same --

Neil Gorsuch: Seeking substantially the same relief as Texas?  Then how come they're on the other side?

Frederick Liu: Well, I think, if you look at the operative complaints in this case, the -- the relief we're seeking here is the same as the relief that Texas is seeking.

What's changed since the 2018 decision isn't a change in the nature of the claims.

Our claims -- Texas and the United States are still pursuing the same claims.

What's changed is a difference in litigating position.

And I don't read the Court's paragraph, that passage you just read, Justice Gorsuch, as suggesting that after having let the United States in the case, that the Court was going to continue policing  --

Neil Gorsuch: I've got to say you're making me regret that decision.

(Laughter.)

Frederick Liu: Well, no, Justice Gorsuch, I read that -- I read that -- that paragraph as standing for the --

Neil Gorsuch: The  representation we had in 2018 was we're just here because we help enforce the Compact.

Frederick Liu: Yes.

Neil Gorsuch: And we have to administer the Compact, and we are completely aligned with Texas.

And that made sense.

But you didn't have -- you're -- you're not a party in the sense that you have some interest here other than administering the Compact.

And at the end of the day, it's a compact between states that we're adjudicating here in an original action, right?

Frederick Liu: Yeah, just two quick responses.

I think, back in  --in 2018, the representation before this Court was that the parties' litigating positions may well diverge as the case goes on precisely because the United States has different interests than Texas. That's what New Mexico told the Court, what Colorado did, what the United States told the Court.

And we reiterated it at oral argument, that the interests were different.

Now  --

Neil Gorsuch: Let's say we had denied you intervention, okay?  You wouldn't  have been a party to the litigation.

Do you agree that your water deliveries under the  Compact, you  --you'd have to make them pursuan t to the consent decree?

Frederick Liu: If we hadn't intervened, no. I mean, I think even if we weren't  --

Neil Gorsuch: The Compact would bind you, wouldn't it?

Frederick Liu: Even if we were not a party, a consent decree cannot bind any third party, whether they're a formal party to the case or not.

And that's just --

Neil Gorsuch: But you'd have your litigating -- you'd have the opportunity to litigate that in federal court, federal district court, those claims, your arguments.

But, otherwise, the Compact is the compact, right?

Frederick Liu: Yeah, I don't -- Justice Gorsuch, I -- I don't think that's the under  --

Neil Gorsuch: Under the Reclamation Act, your -- your responsibility is to administer the Compact?

Frederick Liu: That -- that's -- that's correct.

Under reclamation law, we have  contracts with the two irrigation districts that are at issue in this case, and the problem with this consent decree is that it would impose obligations on us that are actually contrary to those downstream contracts.

And so, when this Court said in 2018 that the Compact implicitly incorporates, can be thought to implicitly incorporate the downstream contracts, that -- that -- that's a real problem, that the consent decree --

Ketanji Brown Jackson: So, Mr.

--

Neil Gorsuch: Do you agree that the Reclamation Act requires you to follow state water law unless there's a clear congressional directive to the contrary?

Frederick Liu: That is correct.

But I  --I will say this.

This consent decree is not state water law.

This consent decree is an agreement between two states that they wish to have embodied in a federal judgment.

And so Section  8 of the Reclamation Act has nothing to say about whether this consent decree can be imposed on the United States.

Elena Kagan: Mr. Liu, I  -- I --I think I need more facts to really know what to make of this case.

I mean, you're here.

The two water districts that get water from this Compact are still on the United States' side.

Frederick Liu: Correct.

Elena Kagan: But -- but Texas has given up the ghost, if you will.

Frederick Liu: Right.

Elena Kagan: Why?  What has happened  --

Frederick Liu: Right.

Elena Kagan: -- so that these different entities have diverged?

Frederick Liu: Right.

Elena Kagan: And what do you still want that Texas has decided is unnecessary?

Frederick Liu: Right.

So here  -- here's what we want.

We want the same thing we wanted in 2018 when this  -- this Court approved ou r claim.

So the easiest way to understand this is to break down the elements of our claim, duty, breach, remedy.

With respect to duty, we want the Court to recognize that New Mexico has a duty of non-interference with respect to the Project. The problem with this consent decree is that instead of recognizing that duty of non-interference, it gives the states a right to interfere with the Project by forcing water --

Elena Kagan: Do you -- do you want the 1938 baseline?

Frederick Liu: We do.

And that goes to the second element of breach.

We -- we came in -- we  --we, since -- since this Court's 2018 decision, have litigated alongside Texas all the way  -- partway through a trial that the right baseline against which to measure New Mexico's interference was a 1938 baseline.

Elena Kagan: And you want this why? Because you think what will happen?  Are your treaty obligations at stake?  Are you just fearful that the water districts won't have the water that they need?  What  --what's the thought here?  And  -- and, again, what's your understanding of why you and Texas diverge?

Frederick Liu: Yes, it's -- it's  --it's  -- our concerns here go to both the supply of Project water and its allocation.

We are concerned that the groundwater pumping is  occurring at unsustainable levels, which will have a devastating effect over the long term on the supply of Project water, and that will mean  down the road that we might not have enough water to meet irrigation demands in the  districts and in Mexico.

We're also concerned about the allocation of water, and by that, I mean the allocation is currently accomplished through the downstream contracts that the government has entered into and the treaty with Mexico.

What this consent decree does is replace that division of water with a division of the state's own making.

As to why Texas has basically capitulated its position in this case, it was  -- everyone agreed in  -- in its complaint it was looking for a 1938 baseline when it filed the complaint in 2013.

Why has it now given that up? Frankly, to the United States, it is inexplicable, but I think it only highlights the importance of the government's intervention in this case.

Neil Gorsuch: Well, if it's inexplicable  --

Samuel A. Alito, Jr.: Well, who  --

Neil Gorsuch: -- how long -- how much water has the federal government misallocated over the last 40 years?  It hasn't  used the 1938 baseline in -- in decades.

Frederick Liu: The  --the allocation of the water in the last 40 years has been pursuant to an operating agreement, but I think it's important to understand what that operating agreement addresses.

That operating agreement doesn't address whether New Mexico is -- is complying with the Compact.

New Mexico isn't even a party to the operating agreement, wasn't even in the room when the operating agreement -- agreement was consummated.

Rather --

Samuel A. Alito, Jr.: Who in -- who in concrete terms is being hurt by this agreement? Which entities here or abroad object to it?

Frederick Liu: Well, we have entities right here in this Court, the -- the two irrigation districts.

Samuel A. Alito, Jr.: And -- and they're in Texas, right?

Frederick Liu: No.

One is in New Mexico and one is in Texas.

Samuel A. Alito, Jr.: Okay.

All right.

And so they are  -- do you think they -- they have a right to assert an interest that's inconsistent  with that that's asserted by their states?

Frederick Liu: They do with respect to their relationship to the federal government. This Court has long recognized that the parens patriae principle extends only to the states' representation of their own citizens with respect to state interests.

Samuel A. Alito, Jr.: So that's what's involved?  Is that what's involved?  New Mexico and Texas are not treating these particular districts fairly?

Frederick Liu: I think that's part of the problem.

Samuel A. Alito, Jr.: What else is -- what's the rest of the problem?

Frederick Liu: The other part of the problem is that the level of groundwater pumping at the D-2 level is in our view unsustainable in the long term, and so the  -- the -- the long-term viability of the Project itself is at risk.

I mean, when  -- when we talk about the districts, they're  -- I want to spell out why -- why we think they're being treated unfairly.

I mean, the Reclamation Act of 1902 reflects a  basic bargain between reclamation and irrigation districts.

On the United States' end of the bargain, we promised to build the major infrastructure, the dams and the reservoirs, and to deliver water to meet irrigation needs in the districts.

On the other end of the bargain, the distri cts agreed to pay construction, operation, and maintenance costs to defray the costs that the United States invested into the Project.

And what this consent decree does is just undermine that bargain because what happens under the consent decree is that the district in New Mexico bears the brunt of any continued or increased pumping in New Mexico. What happens under the decree is, if groundwater pumping remains the same or goes up, what New Mexico can choose to do is to force the  United States to transfer water from the New Mexico district to Texas.

And so what happens is the one district in New Mexico that actually has a contract with the United States, that has paid  millions of dollars in construction charges and continues to pay hundreds of thousands of dollars each year in operation and maintenance, they bear the brunt of groundwater pumping.

The ones who are entitled --

Sonia Sotomayor: Mr. Liu  --

Frederick Liu: -- have to give up their water.

Sonia Sotomayor: -- I -- I've been -- I've been a little bit confused by this case because  -- and starting with Justice Gorsuch's question.

I thought I remembered, and I now have a copy of the appendix -- I think it's to your exception -- on page 27A, compacts are agreements by the states, but they have to be consented to by the United States, correct?

Frederick Liu: That's right.

Sonia Sotomayor: And to the extent that you're arguing that this Compact has been changed, whether you're right or wrong, that will have to be litigated, correct?

Frederick Liu: Right.

Sonia Sotomayor: I don't know if you're right or wrong, but what you're saying is  --

Frederick Liu: We would hope so, yeah.

Sonia Sotomayor: -- this agreement is going to change the terms of the consent agreement.

After a trial, maybe the  --we will think --

Frederick Liu: Maybe they're right, yeah, after a tr ial.

Sonia Sotomayor: Yeah, maybe we'll conclude you're right.

Frederick Liu: Right.

Sonia Sotomayor: But what you're saying right now is you can't change the terms of this agreement without us consenting.

Frederick Liu: Correct.

It is just a basic application of the law that's governing consent decrees.

Sonia Sotomayor: And so whether your claims are -- interests are the same as Justice Gorsuch or not, your claims are the same.

Frederick Liu: Our claims are the same.

Sonia Sotomayor: Which is that this -- well, to the extent that the consent agreement required certain things, the parties have breached them.

By consent, the parties can't forgive that  --

Frederick Liu: Right.

Sonia Sotomayor: -- without you saying it's okay.

Frederick Liu: That's right.

When this Court --

Sonia Sotomayor: When I say you, I don't mean you personally.

I mean  -- I mean the government and whatever entity.

This one was signed by the Assistant Secretary of the Interior, and I presume that's who  -- I don't know who you represent actually, but you understand what I mean.

Frederick Liu: Well --

Sonia Sotomayor: It's the government.

Frederick Liu: Well, I  --I think the -- -- the Compact itself was ratified by the states, approved by Congress, signed by the President. And under the Compact Clause, any new compact has to be -- has to go through the same process. And under this Compact --

Sonia Sotomayor: Has to come to the government to say yes.

Frederick Liu: That's correct.

And under -- and under this particular Compact, it  itself has a provision for amendment which likewise requires the consent of Congress, and I

Ketanji Brown Jackson: But I guess it's the consent of Congress, right, not necessarily the executive branch, correct?

Frederick Liu: Well, it's the consent of Congress and  --and the executive.

Under the Compact Clause, the executive would also get to weigh in.

Ketanji Brown Jackson: Would you  --I mean, Justice Gorsuch's point is that you're just, you know, adjudicating it.

You're not the sort of consenting officer  --

Frederick Liu: Yeah.

Ketanji Brown Jackson: -- for the purpose of the Compact, is that right or no?

Frederick Liu: Right, right.

What  -- what  --what we're asking for in this case --

Ketanji Brown Jackson: Yeah.

Frederick Liu: --is -- is simply a right to pursue our claims.

Ketanji Brown Jackson: All right.

So let  me ask you about those claims.

So what claim exactly  -- you say our claims are the same and our interests are different.

Frederick Liu: Correct.

Ketanji Brown Jackson: So the claim is New Mexico is doing too much in terms of the groundwater.

Frederick Liu: Right.

Ketanji Brown Jackson: What are the  -- what -- what is the source of the different interests?  It's the contracts, the downstream contracts, you say, right?

Frederick Liu: That's right.

Ketanji Brown Jackson: The treaties?

Frederick Liu: That's  --that's right as well.

Ketanji Brown Jackson: That's as well.

Frederick Liu: Yeah.

Ketanji Brown Jackson: Is there anything else?  I mean, is there federal law?  Is it the fact that you administer the Reclamation Act?  Is it that the United States is a sovereign?

Frederick Liu: Well, it's  -- it's -- it's for the reasons that appear on this Court's decision on pages 413 to 415, which is the  Compact is inextricably intertwined with the Project's delivery of water.

In fact, it is the  Project's delivery of water that accomplishes the Compact's apportionment.

It is the fact that the United States is legally responsible for that delivery of water under the downstream contracts and the treaty.

Ketanji Brown Jackson: Which were -- were those incorporated into the  -- we said as a matter of this decision that they are implicitly incorporated, right?

Frederick Liu: That -- that's correct, and -- and the reason behind that I think is pretty straightforward.

The  --the Project predated the Compact.

The Project was already in existence.

And one of the fundamental purposes of the Compact -- and this is repeated at least three times in Texas's own complaint -- one of the fundamental purposes of the Compact was to protect the Project, to make sure that the Project had a sufficient supply of water to fulfill the United States' obligations under the contracts and the treaty.

Again, it would have been  -- it would have been strange for Congress and the President  to approve a compact that failed, that failed to respect the obligations that the United States already had or that put them at risk.

Ketanji Brown Jackson: So can I just shift you really quickly, because one of your arguments is disposing of the claims.

The other is the impermissible imposition of duties on the United States.

And I -- and you mentioned at one point that, under this consent decree, the United States would have to do certain things.

Frederick Liu: Right.

Ketanji Brown Jackson: Can you just say more about what those things are?  Because I think part of their argument is that there really is no change in the status of the United States.

Frederick Liu: Yeah.

A ll the changes go to the heart of the project's operations.

I would first point you to the provisions of the consent decree.

This is at the addendum to the third report, pages 12 to 17.

That would allow the states to force the United States to transfer water from one district to another at the state's direction.

Ketanji Brown Jackson: That's already happening to some degree, but you're saying it's  going to be different if the consent decree goes on?

Frederick Liu: It's going to be different in the important sense that we are doing -- we -- we are allocating water as -- on a consensual basis between the United States and the two districts, as we always have since 1906, done so on a consensual -- that's the meaning of a contract, on a consensual basis.

And what this would do is force the United States to transfer water at certain times and places.

And that just flips the  -- the -- the Project and the Compact on their head because the original design of both was that the determinants of how the allocation works would be the United States and the districts.

Now what determines the allocation is what the states tell us the allocation should be.

Elena Kagan: Is there  -- and I think this goes back to Justice Thomas's  original question, but is there another forum in which you can raise these arguments and get what  -- get the remedy that you're seeking?

Frederick Liu: There's not.

And to sta rt with, to think about it in terms of sources of substantive law, as far as seeking the same relief under the Compact, we don't read the consent decree and no one else reads the consent decree as allowing us to bring any Compact claims that would call into question the validity of the decree.

So we would be stuck with the decree's view of what is compliance with the Compact.

Elena Kagan: That that would be preclusive on the question of what the Compact requires?

Frederick Liu: Exactly.

I mean, the states' own reply in this Court says the consent decree will be "part of the constellation of laws" that the United States will follow.

I think that means that we have to treat the consent decree as if it were the Compact itself.

Now, thinking about other sources of law, there's state law, there's reclamation law. I don't think either of those bodies of law is going to somehow compensate for the loss of our Compact claims.

Those are claims not brought  against New Mexico but against individual water users.

They are claims that hinge on a definition of Project water.

So, for example, under state law, I suppose we'd be in the position of arguing that Project water has a certain definition that includes the water that's being taken away.

But my guess is that if we were to try to litigate in that  -- that in state court, the response from the other side would be:  Well, given that the Compact doesn't protect that water under the consent decree, it's not really your water, and so we wouldn't have any basis for the state law or the reclamation law claims.

Those claims rest on a -- on a -- on a concept of Project water that would be undermined if we're stuck with what the consent decree says.

John G. Roberts, Jr.: Justice Thomas?

Clarence Thomas: Mr. Liu, if we had not gone along with the United States in your efforts to intervene in this, would you be able to vindicate  those rights that you're talking about?  Because I don't remember that  -- the argument you're making now, a sort of apocalyptic argument, being made in 2018.

Frederick Liu: No, I don't think those interests could be vindicated elsewhere for the  reasons I gave Justice Kagan.

I don't think the condition of this  -- I don't think what  I presented here is apocalyptic.

It is simply a reflection of paragraph 14 of the United States' original complaint in this case, which lays out the  -- the fairly simple chain of causation that goes from groundwater being taken out of the ground, leading to less water in Project storage, leading to less water for the -- the beneficiaries of the Project.

Clarence Thomas: Well  --and my memory could be somewhat vague on this  --I thought that much of your argument before was that you were on the same page as  --as Texas.

And it seems like there's a divergence of  --of interests now.

Frederick Liu: Well, we -- there was always divergent interests.

I mean, the parties themselves -- we did, New Mexico, Colorado -- pointed out that even though we were pursuing the same claims, we were doing so for different interests.

In fact, the argument was, if  --if we're just pursuing the same claims for the same interests, we should just be left to be amicus in this case, and whatever Texas decides to do with its claims we would then be stuck with, just tagging along as amicus.

But I -- I understood the point of the Court's decision to be -- and this is on page -- that the United States has distinctively federal interests, not interests that are merely derivative of Texas's.

And I think, in this case, we kind of have  run a natural experiment of what happens when the United States' interests are cut out of the picture.

The results are not good.

The result is a consent decree that really does nothing to protect the Project, that does not recognize a duty of non-interference with respect to the Project, that does not reflect the baseline level of protection that existed for the Project in 1938, and that instead of imposing an injunction on New Mexico to bring itself into compliance with the -- with the Compact actually requires and orders the United States to transfer water to accomplish the -- the decree's ends.

Clarence Thomas: You mentioned the baseline.

Which baseline's being used now?

Frederick Liu: The baseline -- there is no Compact baseline that the parties have agreed on now.

There is an operating agreement that the United States uses.

Clarence Thomas: That's the one, yes. So what is that?  Is that D-2?

Frederick Liu: That is a D-2 baseline, but I want to emphasize what that D-2 baseline reflects.

It reflects the United States and the two districts getting together and saying to each other:  Given the existing level of interference in New Mexico, how do we divide up the rest of the water?  And so that agreement simply takes the world as it exists.

Clarence Thomas: And how long have you been doing -- taking the world as it exists?

Frederick Liu: Well, the operating agreement itself has been in force since 20 03.

Clarence Thomas: No, I mean the D -2 baseline.

Frederick Liu: The D -2 baseline, we -- probably since the 1980s.

I think the 1980s is  -- is the right reference point.

Clarence Thomas: So about 40 years. And the  --so, basically, adopting the B  --D-2 baseline is not a change from what you're doing now?

Frederick Liu: Well, it is a change even according to the states' own briefs and their own experts, because they're not saying keep in place your D-2 equation.

They're saying  -- and this is at the addendum page 44 -- you need to adopt a modified D-2 equation. And that equation is going to require -- if we have to modify the equation, it's going to change the operations of the Project, not just numbers on some spreadsheet, but when we actually raise the gates at Elephant Butte Reservoir to let water through, at Caballo, at Caballo Dam, how long -- for how long we -- we let that water through.

So, you know, the  -- these changes go -- go to the very heart of the -- of the downstream contracts that we've had for more than a century with the two districts.

John G. Roberts, Jr.: Justice Alito, anything further?

Sonia Sotomayor: Just to be  -- I'm clear in my mind, in 2018, Texas was articulating the same claims as you.

You could not anticipate that they would abandon you --

Frederick Liu: Right.

Sonia Sotomayor: -- in the middle of this litigation.

You did anticipate -- that's why you wanted to intervene  --that there were distinct federal interests that needed to be protected?

Frederick Liu: Right.

Sonia Sotomayor: And those interests remain the same?

Frederick Liu: Those interests remain the same, although --

Sonia Sotomayor: And your claims were based on those interests, and those haven't been litigated here, but they're being settled by the states?

Frederick Liu: They're being settled by the states.

Sonia Sotomayor: All right.

John G. Roberts, Jr.: Justice Kagan? Justice Gorsuch?

Neil Gorsuch: Mr. Liu, I guess my concern, you know, at bottom is this, that our original jurisdiction is for litigation between states.

That's what it's -- that's what our charge is from Article III.

And we have a  -- a --a consent decree between two states.

They agree.

The Special Master's found that that agreement is consistent with their Compact and doesn't purport to settle any claims that the federal government might have.

In fact, says those are just not part of this case, dismissed without prejudice to be pursued in another forum.

To now say that the federal government has independent litigating authority in cases that are supposed to be between two states and not resolve the federal government's interests seems to me a dramatic expansion of this Court's original jurisdiction not just in this case but potentially with ramifications going forward.

Thoughts?

Frederick Liu: Well, I think those concerns can be cashed out at this Court's initial gatekeeping stage just -- so, in other words, those concerns can be cashed out when the Court takes up the issue of whether the United States  can intervene and pursue the claims.

Neil Gorsuch: And that's -- that's kind of why you've made me regret that, because the representation then was, we're -- we're fully aligned with one of the states here and we can add material value in the understanding of the case.

I get that, I do, sort of still.

Frederick Liu: Well, I'm just going to --

Neil Gorsuch: But  --

Frederick Liu: -- I'm just going to disagree that that is --

Neil Gorsuch: -- but now you're saying you have independent claims that you want to pursue --

Frederick Liu: Right.

Neil Gorsuch: -- independent of any state.

And that's not what our original jurisdiction's about.

Frederick Liu: Yeah, I  --I -- I think this -- I think the Court well understood in 2018 that a possible consequence of its decision was that the states and the United States, their positions might someday diverge on these things.

Neil Gorsuch: You're asking us to say that two states cannot resolve their disagreement in this Court consistent with the  Compact so long as the United States objects.

That's the upshot of what we're being asked to enforce here.

Frederick Liu: I  --I don't think that's quite right because the United States is  -- is not standing in the way of the states --

Neil Gorsuch: Settling their own claims.

Frederick Liu: Well, they  --they can settle their own claims so long as they  do so consistent with the laws that govern consent decrees.

Neil Gorsuch: With -- with the federal government's views, right?

Frederick Liu: No, I think this is just  --

Neil Gorsuch: They can't settle their own claims anymore.

Frederick Liu: I  -- I think they could. And we gave an example in -- in our briefs. Texas, for example, could agree to dismiss its claims, and, in return, New Mexico could agree to either curtail the groundwater pumping or  offset it, and if you look at the -- the declaration by -- by Hammond in --in --in the  --in the record, it  -- it --it lists a host of ways that New Mexico could offset the amount of groundwater pumping.

And that sort of agreement, which is simply an agreement by New Mexico that says we're going to take care of groundwater pumping, doesn't dispose of the United States' claims in this case or impose any obligations on the United States.

Neil Gorsuch: It's just one you prefer rather than the one the parties prefer?

Frederick Liu: Well, I think, if  --if we're thinking about who is imposing on who in this case, it's not the United States imposing on the states.

It's actually the states imposing on  -- on us.

Neil Gorsuch: Okay.

Frederick Liu: And that's because we're leaving the states free to do what they want. They're the ones who are bringing us into this by saying we're not just  --we're not just withdrawing from the litigation, we're taking  you with us, and on the way out, we're going to impose a host of obligations on you.

Neil Gorsuch: Thank you.

John G. Roberts, Jr.: Justice Kavanaugh?  Justice Barrett?

Amy Coney Barrett: No.

John G. Roberts, Jr.: Justice Jackson?

Ketanji Brown Jackson: Just picking up where Justice Gorsuch left off, I guess I had not understood that all consent decrees are necessarily proper  just because the parties agree to them.

I thought, in our Firefighters case, there were some limits that you can't have a consent decree that disposes of intervenors' claims without their consent.

So am I misreading that or  --

Frederick Liu: No, I think it's clear as day on --

Ketanji Brown Jackson: I mean, is that what you're relying on in response to the notion that just because the states agree, you know, the United States shouldn't be allowed to object or that we have to necessarily approve this consent decree?

Frederick Liu: Yes, that's  --that's right, Justice Jackson.

Ketanji Brown Jackson: Thank you.

John G. Roberts, Jr.: Thank you, counsel.

Ms. Pettit.

Lanora C. Pettit: Thank you, Mr. Chief Justice, and may it please the Court:  No one disputes that the Rio Grande Compact divides the river's waters 57 percent to New Mexico and 43 percent to Texas.

But neither the Compact nor the downstream contracts specify percent of what:  the river as it existed in 1938 during the so-called D-2 period or something else entirely.

This Court has repeatedly admonished states to figure out such issues amongst themselves because  --and I'm quoting from a different Texas against New Mexico  -- "they are more likely to be wisely solved through cooperative study than in any court however constituted."  We heard you, we listened, and we complied.

None of the three reasons the United  States insists require Texas and New Mexico to nonetheless continue litigating holds water. Their objection that the Compact -- that the consent decree violates the Compact ignores that  this Court has encouraged states to clarify technical issues such as the baseline condition and accept that solution so long as it is reasonable and does not contradict the Compact's express terms.

We know the decree easily meets that standard because it merely tweaks a methodology the United States developed in the late 1970s. Their next objection collapses into the first because it is the Compact that requires the United States to deliver and account for Texas's water.

The decree merely allows the arrival of that water to be measured with greater precision.

Finally --and this is the objection that has been the focus today -- their claims objection would transform this entire lawsuit  from one about how much water the Compact guarantees Texas to what New Mexico will do to meet that guarantee.

Such disputes are not yet ripe, and, more fundamentally, as Justice Gorsuch noted, under the Reclamation Act of 1902, they present  complex issues of New Mexico state law that neither interest Texas nor belong in the first instance in this Court.

I welcome the Court's questions.

Clarence Thomas: Do we review consent decrees in original actions different from consent decrees in other  --other cases?

Lanora C. Pettit: I believe that's an open question, Your Honor, in the original jurisdiction context.

But it does make sense, because this Court has said very specifically that its jurisdiction is narrow, that one would consider, as the Special Master did, whether, for example, the obligations are the type of obligations that would justify keeping a ca se in this Court over the objection of the original states.

Clarence Thomas: The Special Master seemed to have a different view of where the  U.S. could vindicate its rights.

It indicated that the U.S. could use another forum to do that.

Do you have a view on that?

Lanora C. Pettit: We agree with the Special Master that they can and should vindicate their current claims in New Mexico state or federal court.

Elena Kagan: Well, what do you say to what Mr. Liu just said?  Mr. Liu said this is going to be preclusive as to what the Compact means, what it requires, and there's no other way, no other body of law that's going to be able to get around that, so you effectively are precluding the government's position in this case.

Lanora C. Pettit: It won't be preclusive in the sense of claim preclusion.

It will resolve a single question, which is the baseline against which the Compact is judged, and we do agree that that would be binding on the United States.

However, I would point this Court to its 1935 decision in Nebraska against Wyoming, which, contrary to what my friend in the United -- States said, treats the United States as equivalent to all other appropriators for that purpose.

The Compact agreement is binding on them as a force of Congress's choice from  -- starting from the 19th Century that the federal law will defer to -- to state law in this unique circumstance.

Elena Kagan: But there seemed to be

Sonia Sotomayor: I'm sorry, but there's been no adjudication.

There's a consent decree that fixes an answer and you're saying the government is bound by that answer.

It -- it's different if they were permitted, as they're asking, to litigate that question and they lose it.

Well, they've lost it.

They're bound to that now.

Lanora C. Pettit: The  --

Sonia Sotomayor: But you're saying something different.

You're saying the Compact settles that question.

They're stuck with it.

Lanora C. Pettit: Yes, Your Honor.

Sonia Sotomayor: Isn't that  -- you've given your whole case away?

Lanora C. Pettit: No, Your Honor.

The Nebraska case was also settled, and the Court did not even allow the -- the particular complaint -- the particular opinion I was citing  was actually an opinion saying that the United States was not even a necessary party because, under Congress's choice, that they would be bound by state law.

Elena Kagan: I think there are compacts and then again there are compacts.

You know, there are compacts that really do involve only the states and don't have distinctively federal interests attached to them, and this contact  --Compact is not that and for all the reasons we gave six years ago.

First, the Compact is inextricably intertwined with the Rio Grande Project and the downstream contracts, which, of course, are federal in nature.

Second, the United States plays an integral role in the Compact's operation.

Third, a breach of the Compact could jeopardize the federal government's ability to satisfy its treaty obligations.

So this is a Compact that really the federal government is right in the mix of, and  that's why we allow the federal government to participate.

Lanora C. Pettit: Your Honor, I would agree that there is a spectrum of compacts, but this is not on the far end of it.

In fact, the United States is a actual party to the Delaware Compact because -- or the Delaware River Compact for precisely that concern.

This falls more in the middle.

And as -- and the Michael Sullivan declaration, I believe, gives examples all over the  -- the West about areas where compacts use reserve -- reclamation projects in the ways contemplated here.

And it -- it would be no different.

Elena Kagan: Well, whether this is on the extreme end or not, what I'm suggesting is that federal interests are just inextricably bound up in the operation and the -- and the -- and the rules respecting this Compact.

And for you to say you can  -- you know, once -- after we've said there are these distinctive federal interests and the U.S. gets to participate as an intervenor, for you to cut the U.S. out of the picture entirely so that the U.S. can't ask a court to litigate those, what -- what -- what it thinks are -- are the right rules, I mean, I guess I don't see where that authority comes from.

Lanora C. Pettit: From  --for the right rules point, my -- I believe my friend actually acknowledged that whether or not they were an intervenor was irrelevant to that question.

It either complies with the Compact or it does not.

And as to their specific claims  -- and I think this really goes to focusing on how their claims have actually evolved since 2018, because in -- in 2018, they were asserting a interference with a treaty and an interference with Texas's apportionment.

Here, they're  -- and the Special Master recognized that there is no evidence about a potential interference with the treaty at all, in part because this consent decree takes it right off the top.

The treaty's not  -- so, as a result, the treaty is not implicated.

And -- and then they're saying, well, I'm demanding on behalf of Texas more than Texas is going to  -- is demanding for itself.

That doesn't make a lot of sense.

And so what they've really tried to do here is they've tried to conflate the Project and the consent -- and the Compact, and they are two analytically separate things.

What they're asserting here is  -- is an interference with the Project in New Mexico that is a matter of reclamation law and that is typically resolved in the lower courts.

Elena Kagan: I  --I mean, you say they're two separate things, and six years ago, we said they're inextricably intertwined.

Lanora C. Pettit: In the sense that the -- the Project acted as a -- as a sort of agent, is I believe the words this Court used, in term  -- but not in the sense that every single violation of the Project or every single potential interference with the Project rises to the level of a Compact violation.

For example, if there were a well in New Mexico that was being operated in a way inconsistent with the Project, that might be a violation under the Reclamation Act, but it's not going to be a violation of the Compact.

So they can't be -- just because one serves as the agent of the other doesn't mean that they can't -- that they are not analytically distinct.

John G. Roberts, Jr.: This is a theoretical question about how it works, and maybe everybody else knows, but my understanding  of how this works is you have compacts and the federal interest is protected because of the requirement of congressional consent.

But what happens as they go on?  I mean  --and you have a consent decree under the Compact, but at what point does the federal government have the authority to step in as they do when the Compact is originally enacted?

Lanora C. Pettit: In that instance, Your Honor, I think it would  -- and I'd point you to the Texas against New Mexico case that I originally quoted from 1983, where the Court drew the line at where it is congressionally ratified powers.

And this is to where it is a reasonable interpretation as opposed to an amendment to the Compact.

And, here, what we have is a reasonable interpretation as to how the Project is going to  -- how the Compact is going to function on a day-to-day basis --

John G. Roberts, Jr.: Well, how does the  --

Lanora C. Pettit: -- because the Compact doesn't specify it.

John G. Roberts, Jr.: -- how does -- let's say the -- the Solicitor General representing the federal government disagrees with the idea that it's a reasonable interpretation.

Where do they get to have that question addressed?

Lanora C. Pettit: This Court addressed that in Vermont against New York, where the Court said that it does not rubber-stamp consent decrees.

It has the obligation to consider whether or not the consent -- there's a modification of the Compact.

Here, the Special Maste r looked at every single objection that they have raised and determined that it was a reasonable interpretation, in part because it is the interpretation that, as my friend noted, both the United States and the two districts have agreed upon since the late 1970s.

John G. Roberts, Jr.: So what happens  -- the federal government says a problem here is they're not going to be able to meet their treaty obligations with Mexico.

What  -- what if that happens?  What  --do you have any obligations at that point, or do you just tell the United States to, you know, go to war with Mexico?

Lanora C. Pettit: I certainly wouldn't tell the United States to go to war with Mexico, Your Honor.

I believe, in those circumstances,  because their claims as they've articulated them today, and they have been a little fluid, is that New Mexico is pumping too much water, what they would do is bring a Reclamation Act claim in New Mexico.

And they are actually a party to ongoing litigation along those lines in the stream adjudication that they've been trying to get out of for decades to -- precisely to determine their seniority and whether or not and how they were going to protect that claim.

John G. Roberts, Jr.: So that would be your answer to the question I was  -- I think was asked earlier about what should the United States do, and you would say they should sue New Mexico or, presumably, they'll find you too in -- you're not going to be in state court but in federal court, and that would be resolved there?

Lanora C. Pettit: Yes, Your Honor.

Ketanji Brown Jackson: Can I --

Lanora C. Pettit: And  --

Ketanji Brown Jackson: -- can I ask you, in -- in such an action, wouldn't New Mexico point to the consent decree and say we're not doing the wrong thing because, let's say, we adopt  -- or approved the consent decree?  Wouldn't the defense be here's the consent decree and  it tells us how much water we can pump?

Lanora C. Pettit: It depends on what precisely their allegations are, which is why the  -- these claims are not yet ripe.

All the consent decree does is it specifies how much water New Mexico is entitled to.

And the treaty obligation is taken out before they ever get to that point.

Ketanji Brown Jackson: But why isn't that the same thing?  If New Mexico is saying  -- you know, if  --if the federal government's claim in the Reclamation -- hypothetical Reclamation Act lawsuit is that New Mexico is taking too much water --

Lanora C. Pettit: Mm -hmm.

Ketanji Brown Jackson: -- and New Mexico's response is no, we're not because the consent  decree tells us how much water we're entitled to, I guess I don't understand why that isn't -- the consent de cree doesn't impact the United States' claims.

Lanora C. Pettit: And I think that I would point Your Honor to the explanation that they gave the Special Master in October and December of 2022 about what the nature of their claims are.

And it's really a question -- it's not really a question of New Mexico as a whole taking too much water.

It's particular New Mexicans, so people who are not Project contract users who are pumping when they shouldn't be. That's the type of claim that would be appropriate.

It's a purely  --

Sonia Sotomayor: But it can't be because we go back to your earlier concession. What the  --this consent decree says is the 1938 baseline is not how you interpret this contract.

Whether the Special Master will ultimately disagree with their position or not, if they are not able to litigate that the 1938 baseline is what needs to be measured, then the pumping would be illegal.

Lanora C. Pettit: Not  --

Sonia Sotomayor: If the baseline has been changed, then the pumping is going to be from a different baseline.

And so their reclamation claims are being limited.

The extent of how much they can get is being limited by you.

Lanora C. Pettit: Your Honor, I have two responses.

The first is that the United States has not actually attempted to litigate the 1938 condition in this case.

In fact, the Special Master -- and this is his words, not mine, on page 71 of the February 6th, 2023, transcript  -- "I don't know how the U.S. is maintaining that with a straight face," because, as recently as the summary judgment motion, they disclaimed the 1938 baseline.

Beyond that, the type of pumping that they are talking about and the concerns they are being -- are saying and one of the reasons they raised that it was unfair was that this -- that -- that EBID, the district in New Mexico, was going to bear the brunt for people outside of  -- of that area, so people farther upstream.

That is the nature of the  --of the claims they are trying to litigate now, is --

Sonia Sotomayor: Well, we'll see. They'll have to get up and answer that because I can't, but we'll see.

Ketanji Brown Jackson: Can I just direct your attention to the other objection?  Because, on the one hand, they say part of the reason  this is a problem is that you are disposing of our claims.

I also understood them to say you are imposing obligations.

So I guess my question is, to what extent do you see the -- the consent decree as binding on the United States?

Lanora C. Pettit: It's not binding in the sense of a -- that we can seek contempt for violating it.

It is binding, as we were discussing a few minutes ago, as to the definition of the baseline.

The obligations that they are pointing to  --

John G. Roberts, Jr.: You could finish your answer.

Lanora C. Pettit: -- are -- are three specific concerns.

One is the gauge, which is actually contemplated by the Compact itself in Article II and Article V, that we can move gauges.

The second is an accounting issue that it  -- that falls within the scope of the accounting that already happens because what's accounting that it's talking about here is not the day-to-day operation of the project; it is an end -of-the- year assessment about whether the Compact has been violated.

They're two different things.

And the third is a transfer of allotments between districts over -- at the end -- the beginning of each year.

That would be enforced against the districts.

John G. Roberts, Jr.: Thank you. Thank you, Ms. Pettit.

Mr. Liu said it was inexplicable why you gave up the 1938 baseline.

Can you explain that?

Lanora C. Pettit: Certainly, Your Honor. The nature of a settlement is that parties compromise.

And the  --the Special Master determined at the summary judgment stage  that there wasn't a strict 1938 condition as the -- as Texas originally pled it.

There was some additional amount of development that had been contemplated.

And taking  --we accepted that as a fundamental matter, and going forward, looking at the evidence and looking at the different  claims, we concluded that this was in Texas's best interests.

John G. Roberts, Jr.: Thank you. Justice Thomas?

Clarence Thomas: The  --this may be along the same line, but the language, it  -- the -- in Justice Gorsuch's opinion in the 2018 case, he says, after we permitted the U.S. to intervene, it also filed a complaint with allegations that parallel Texas's.

Where did you  -- where --now it appears that you've diverged.

Could you give us an  -- could you explain why that happened and on what basis did -- did --did this happen?

Lanora C. Pettit: I --

Clarence Thomas: The government seems -- the U.S. seems to put quite a bit of emphasis on that.

Lanora C. Pettit: Two responses.

The first is going back to 2018, ironically, General Keller, when he was standing at this lectern, predicted that there would be a divergence about  the baseline, but he got the positions backwards.

He was  -- he was asserting that Texas would be asserting a 1938 condition and the U.S. would be asserting a D-2.

And that's actually how it's been litigated up until the exceptions.

So that's -- that's changed. The other thing that's changed is, again, they are trying to bring into this lawsuit intrastate issues within New Mexico that Texas actually never agreed to that were appropriately part of its lawsuit back in 2018.

John G. Roberts, Jr.: Justice Alito?

Sonia Sotomayor: Who decided  how to do the accounting before the consent decree? Who set up that process?

Lanora C. Pettit: There are two different processes.

One is run by the Rio Grande Compact Commission.

That is the Compact Compliance. And the other is the accounting process for the Project itself.

And those run in parallel. They only really meet at the end -- basically an end-of-the -year meeting, where Texas and New Mexico, as well as Colorado, would be telling them you need -- there's a credit or a debit  that needs to be put into your accounting system and  --

Sonia Sotomayor: So that  --

Lanora C. Pettit: -- it's functionally the same thing.

Sonia Sotomayor: -- but -- but who set up what would be reported or how?

Lanora C. Pettit: So --

Sonia Sotomayor: The two projects, not the states, correct?

Lanora C. Pettit: They are  --it's -- this is cooperative federalism.

They work together about this.

And they work together on an ongoing basis.

So I can't --

Sonia Sotomayor: The problem  -- the problem is that now you're directing the federal government to do something different.

Whether it's de minimis or not, I can't even figure that out in reading the materials.

But, when we had the opposite situation of the federal  --one sovereign, the federal government, telling the states to do background checks on gun buyers, we said that's stepping into their sovereign decision-making and couldn't.

I don't know why this is not the same in reverse, that you're commanding the federal government to do something that it had not done previously.

So where do you get the power to do that?  You claim the power is because they've undertaken the duty to do this, but they took a duty to do this, get  --retaining the right to make certain decisions.

Now you're chasing that baseline.

Lanora C. Pettit: The Reclamation Act of 1902 state d that the states can put -- the federal government takes its water rights subject to both the procedural and substantive requirements of the states, and that can include, for example, in United States against California in 1978, some really, really nit-picky, like 25 different conditions micromanaging.

And that is something that Congress has allowed for here.

Here, it's just a discussion about slightly different numbers in a larger accounting process that's already existed.

John G. Roberts, Jr.: Justice Kagan? Justice Gorsuch?

Neil Gorsuch: Let me just see if I've got  it right. So we have a consent decree that we have to approve or  --or disapprove.

And the big change is the baseline.

That's been a big  subject of dispute, and that's what the government says it's most worried about.

Lanora C. Pettit: Yes, Your Honor.

Neil Gorsuch: But it's the same baseline that's been used for 40 years.

Lanora C. Pettit: Yes, Your Honor, ever since the -- the -- the Project went from delivering at individual farms to delivering at a district level.

It's used the same baseline.

Neil Gorsuch: And the other concern that we've heard mentioned is the treaty, but the Special Master found that there's no treaty problem here.

Lanora C. Pettit: Yes.

The Special Master found there's not even a serious argument there's a treaty problem.

Neil Gorsuch: It might be different in terms of approving a consent decree if there were a treaty problem.

Lanora C. Pettit: Absolutely.

Neil Gorsuch: Okay.

And then the other set of issues has to do with administration, where the -- where the gauge -- water gauge is going to be.

And you're getting a benefit out of this deal because, instead of the water gauge being at Elephant Butte -- I don't know how many miles, over a hundred miles from the border -- you're getting a measure now at the Texas border.

Lanora C. Pettit: I'd tweak that just a little.

The gauge that is still going -- the gauge that's at Elephant Butte is still at Elephant Butte.

Neil Gorsuch: Yeah, no  --

Lanora C. Pettit: We're getting a separate -- the gauge that we are -- is being in El Paso is  -- had  been gauges that had been canal headings within Texas, but we are measuring at Texas.

What we are getting -- we're definitely getting a benefit in the sense that the  -- the Project is now considering and freezing in the 1978 level the -- the pumping that had been happening.

And I do want to point out that that is requiring New Mexico to reduce pumping to get down to 1978, and I think they've already spent something like $60 million on it.

Neil Gorsuch: Okay.

Thank you.

John G. Roberts, Jr.: Justice Kavanaugh?  Justice --

Ketanji Brown Jackson: So do you dispute that the downstream contracts are still in effect and bind the United States with respect to the allotment and their obligations regarding that?

Lanora C. Pettit: We don't dispute it, but under Hinderlider, the contractors' rights rise no higher than the states.

And so, if Texas only gives them 43 out of a hundred gallons, the Texas District can't claim --

Ketanji Brown Jackson: I understand, but the contracts do talk about their transfer obligations as between EBID and EP1, right?

Lanora C. Pettit: No, Your Honor.

The  --

Ketanji Brown Jackson: They don't?  Okay.

Lanora C. Pettit: -- the 1938 contracts that are incorporated into the Compact --

Ketanji Brown Jackson: Yeah.

Lanora C. Pettit: --do not discuss a transfer obligation.

That is something that the United States came up with in 20 -- in 2008 without the Compacting states whose rights are  at issue even being in the room, as my colleague put it.

Ketanji Brown Jackson: Final question.

If  the United States decides not to transfer water pursuant to the consent decree, let's say it goes through, you mentioned earlier that that would be enforced against the states and not the United States.

In other words, you're not binding them necessarily legally.

Is that -- is that your position?

Lanora C. Pettit: The districts, yes.

That would be enforced  --

Ketanji Brown Jackson: Enforced  -- excuse me  --against the districts.

Is that in the Compact -- or in the consent decree?  Is that -- or is that just something you're saying here now?

Lanora C. Pettit: That's not specifically in the consent decree.

That is, however  -- the way that the transfers work is, to take a specific example, if a negative departure transfer were triggered, that would mean over a period of years, EBID, the New Mexico District, has received far, far more water than it was entitled to, and that would be a transfer  -- that would be transferred to Texas as a -- the Texas District as a way of a remedy.

If the EBID were to continue to take more water than it was entitled to even after that, that would be enforced through a New Mexico state administrative process that's part of the larger constellation of laws that my friend mentioned and is not specifically in the consent decree.

Ketanji Brown Jackson: Thank you.

John G. Roberts, Jr.: Thank you, counsel.

Mr. Wechsler.

Jeffrey J. Wechsler: Mr. Chief Justice, and may it please the Court:  The question of whether the United States can veto the settlement of the Compacting states can be resolved by the application of four principles.

First, the distinctively federal interests of the United States do not include an interest in the equitable apportionment of Rio Grande water.

That is undisputed.

Because the  only issue resolved by the consent decree is the equitable apportionment, the United States' interests are not implicated.

Second, the Compact establishes the apportionment.

The Rio Grande Project must then conform its operations to ensure that the Compact apportionment is delivered.

Third, this Court has recognized the right of states to clarify an ambiguity in an interstate compact so long as the clarification is consistent with the Compact.

Here, the consent decree measures Texas's share of the Article IV delivery in a manner that is expressly contemplated by the Compact.

And, fourth, there are other available fora for the United States to resolve its remaining claims.

The Special Master observed that "it is difficult to envision a resolution to this matter that might be superior to the consent decree."  The Court should overrule the United States' exception and enter the consent decree. I welcome the Court's questions.

Clarence Thomas: Could you  -- the -- one of the -- the State of Texas -- the United States seemed to suggest that Texas and the -- the states have changed their views from early -- from 2018, and we've had some discussion of that.

I'd like to hear your comments on that.

Jeffrey J. Wechsler: Well, United  -- New Mexico has been consistent about its position in terms of the D -2 baseline.

What I  --what we understood the 2018 decision to be doing is essentially saying Texas had a claim to the apportionment.

That is an interstate apportionment as between Texas and New Mexico. Only those states are in the  --the Compact itself.

And what the United States had brought was a claim for interference; that is, this Court said that there were obligations that arose under the Compact and that it was -- it had a claim to be free from interference with those duties and obligations. The consent decree doesn't address that interference claim.

All it does is say  -- is define what the equitable apportionment is as between Texas and New Mexico.

And the United States is free to bring  -- as the Special Master indicated in  --in his -- in his third report, they're free to bring all of those claims of interference in other fora.

And that would be  consistent with the way this Court has handled other cases.

Clarence Thomas: What is the nature of the disagreement about the groundwater pumping?

Jeffrey J. Wechsler: So I would understand that to be Texas and New Mexico have resolved the apportionment, the amount of water that each state is entitled to.

What the United States is really arguing about is, how does New Mexico satisfy its obligations?  That is, which specific water users within New Mexico must shut down wells, how New Mexico should be administering water, and those sorts of intrastate issues that this Court has held are -- are purely intramural disputes between competing water users within the state.

And in other cases where there are those sorts of competing uses for -- between  interstate users, the Court has sent the case back to those -- to the states.

So, for  example, in the case of United States versus Nevada, once the interstate matter was resolved as between California and Nevada, the case was  -- this Court said, well, the remaining claims can be resolved within the State of Nevada because it only has to do with competing interests of New Mexico  --of Nevada water users.

John G. Roberts, Jr.: So you would send the United States to, presumably, a federal court in New Mexico to sort out the concerns they have and would prefer to raise here?

Jeffrey J. Wechsler: That's correct, Your Honor.

For any reclamation claims, those would be in federal district court in New Mexico.

As to the reclamation  -- the definition of Project rights, that's a New Mexico state adjudication court matter pursuant to the McCarran Act amendment and the Reclamation Act that Justice Gorsuch referred to earlier.

John G. Roberts, Jr.: And is it possible that the New Mexico courts would issue decisions concerning the allocation of water that would be contrary to the consent decree?

Jeffrey J. Wechsler: No.

We think the consent decree only resolves the issue of the interstate apportionment.

And  -- and to Justice Jackson's question earlier, the remaining questions about depletions within the State of New Mexico, how New Mexico water users could be done, for example, protection of the treaty, all  of those claims could be available to the United States, as the Special Master indicated, in the lower fora.

John G. Roberts, Jr.: And it wouldn't be the case  --

Sonia Sotomayor: But they're bound -- they're bound against arguing that New Mexico has to use a 1938 baseline, correct?

Jeffrey J. Wechsler: No, I don't think that's right, Justice Sotomayor.

Sonia Sotomayor: Well, that's what your co-counsel said.

Jeffrey J. Wechsler: Well, I don't think that's -- that's not how I understood my co-counsel.

What  --what is  --what is -- has a preclusive effect is the apportionment itself. So the baseline would apply as to the amount of water that Texas is entitled to receive.

What it doesn't preclude the United States from arguing, which is really their -- their argument here, is how should the project operate?  How can the project be free from interference from New Mexico water users?  And  that really is a question of how does New Mexico use its share of the apportionment.

And that question they could raise  -- they could -- they actually could seek to limit depletions all the way back to their priority date, which is, I believe, a 1903 priority date. And so they would have the ability to protect their project from groundwater depletions.

So the only thing really here is being resolved is the equitable apportionment as between the two states.

Ketanji Brown Jackson: But why aren't these all connected?  I mean, you seem to be drawing a line between arguments that the United States can make related to internal use of the water by New Mexico but not the apportionment as between states.

And maybe I'm confused, but I thought that this is one water system that works its way all the way down.

And so, to the extent that New Mexico is taking too much internally to New Mexico or not allowing it to continue on to the dam, doesn't that affect ultimately the Project, et cetera?  I mean, how can you separate these two out in the way that you are?

Jeffrey J. Wechsler: Well, I think it's just a matter of understanding what the hierarchy here is.

So, as the Special Master indicated in cases like Hinderlider, California versus United States, the Court has established that the Compact  -- the --the apportionment as between the two states is established by the Compact itself, not the operation of the Project.

And once that apportionment is set, now the Project must operate within that apportionment.

And so the amounts that the districts are entitled to, for example, the New Mexico District, that amount, to use the language from Nebraska versus Wyoming, can rise no higher than New Mexico's apportionment itself.

And so, to the extent that the  -- the Project  --or th e United States has a claim concerned about, like, are there New Mexico  water users taking water, that is purely an interstate matter.

It's a matter of how is the  New Mexico apportionment being used.

And that's a matter that this Court has held, and the Special Master also is recommending, that those questions can be resolved in the lower courts, courts that are more appropriate or  -- or more used to addressing questions having to do with New Mexico water administration, New Mexico water use, which New Mexico water users should be shut down, how to reduce depletions.

Neil Gorsuch: Let's see if I've got it.

The gist of this Compact is that 43 percent of what's in Elephant Butte has to go to Texas using the D-2 baseline.

That's the --

Jeffrey J. Wechsler: That's right.

Neil Gorsuch: -- gist of it.

Now, if New Mexico water users are interfering with a federal reclamation project, that's a different question.

Jeffrey J. Wechsler: That's  --

Neil Gorsuch: And  --and the Reclamation Act says that gets resolved according to state law internally, intramurally in New Mexico?

Jeffrey J. Wechsler: Yes, that's exactly right, Justice Gorsuch.

And all the consent  decree does is define more precisely what was determined in the Compact in 1938 that Congress consented to, and that is the Project must be operated in a manner that the equitable apportionment is delivered, that is, the  43 percent that Texas is entitled to actually arrives at the border in Texas because, of course, otherwise, they have no ability to enjoy it.

And all the consent decree does is  -- is provide a measurement, a way to measure and enforce Texas's share of that Article IV delivery, and it does so in a manner that is expressly contemplated by the Compact in Articles II and XII.

John G. Roberts, Jr.: If you have nothing further?  Justice Thomas?  Justice Kavanaugh?  No? All right.

Jeffrey J. Wechsler: Thank you, Your Honor.

John G. Roberts, Jr.: Thank you, counsel.

Rebuttal, Mr. Liu?

Frederick Liu: Thank you, Mr. Chief Justice.

Just four quick points.

First, I think I heard my friend from Texas acknowledge that the consent decree would be binding on the United States with respect to its claims in this case.

I think that's just game over under -- under the Firefighters decision, which couldn't be clearer that a consent decree can't bind the -- can't distinguish  --extinguish the -- the claims of a non-consenting intervenor. Second, on the nature of the -- of the United States' claims, Justice Jackson, I think you're exactly right, the  -- the -- the -- my friends' attempt to kind of divide these claims into an intrastate portion or an interstate portion just doesn't make any sense given what this Court has already said about how this -- how this  --this water system works.

The Project is intertwined with  -- with the Compact. And  -- and  --and we have been here all along protecting the Project's delivery of water to the districts and Mexico.

That  delivery of water is the Compact's apportionment.

So, insofar as we are trying to enforce the protection of that delivery of water, we are trying to enforce the Compact's apportionment as -- as it -- as it is specified.

I think the clearest way to  --to appreciate this point that our claims are  -- are the  -- are the parallel to the Compact claims that have been in this case from the beginning is to just look at Texas's complaint.

On page 16 of its complaint in this case, it asks for an injunction that would command New Mexico to stop interfering and impeding the authority of the Rio Grande Project.

That's Exhibit A for why there's no way to  --to --to untangle the -- the project's delivery of water  from the Compact's apportionment.

They're both the same thing.

My friend from New Mexico said, well, the United States will be free to argue about whether certain users of New Mexico are properly divvying up New Mexico's share under the consent decree.

But our entire claim in this case is about the definition of the share itself.

It's  not about how people in New Mexico should divide up the eventual share.

It's about the delivery  of water to the two irrigation districts and Mexico -- Mexico, and -- and it's not about the  -- the interstate issue.

Third, on the  --on the obligations, my friend from Texas wanted to characterize the obligations that this consent decree would  impose as minor obligations.

As an initial matter, under Firefighters, that just doesn't matter.

I mean, this is just Contracts 101. Two people cannot contract together and impose any obligations on a non-consenting third party. There's no exception to that rule in this Court's original jurisdiction docket.

In fact, I would have thought that in this scenario, that that  -- that rule is most important because the United States is not standing here before you as an ordinary litigant.

We are the federal sovereign.

And so, in addition to the rule in Firefighters, there are rules about sovereign immunity, sovereign immunity, intergovernment immunity.

All these rules protect the federal government from being what is an essential -- essentially a direct regulation by the states.

And the last point I'll make is  --is about this -- this idea that the states can just come together and resolve ambiguities  in -- ambiguities in the Compact and then impose them on the United States.

This just conflates the  consent decree with the Compact.

The -- the  --the whole point of Firefighters was that states by their mere consent cannot impose on non-consenting parties their view of the law.

Rather, that view of the law has to be litigated on the merits by the non-consenting party. And so, for all those reasons, we would ask this Court to deny the states' motion to enter the proposed consent decree.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.