Catch up on the big Supreme Court water case involving Texas and New Mexico

This is an edited version of a story that originally appeared in El Paso Matters. To read the original go here.

The Rio Grande supplies water to millions of people and wildlife along its shores in Colorado, New Mexico, Texas and Mexico. Nearly 80% of its water is used in agriculture, but it’s also a major source of water for cities like Albuquerque and El Paso.

An 8-year-old U.S. Supreme Court fight between Texas and New Mexico over water from the Rio Grande will go to trial in the next couple of months, Special Master Michael Melloy ruled on Aug. 27.

Lawyers representing Texas filed a lawsuit in the Supreme Court against New Mexico and Colorado in 2013, alleging that New Mexico violated the agreement the states made about Rio Grande water and took more than its fair share.

New Mexico farmers’ pump groundwater, using wells hydrologically connected to the Rio Grande south of Elephant Butte, according to the complaint, and they cut into the amount Texas is entitled to by “tens of thousands” of acre-feet each year.

Texas called on the Supreme Court to order New Mexico to pay back the debt in cash for water owed over decades — a judgment which could top $1 billion. If New Mexico loses, that might also curtail groundwater pumping and jeopardize some Southern New Mexicans’ water rights.

Colorado is named as a defendant only because it is a signatory on the Rio Grande Compact.

Who will decide?

The case is solely before the U.S. Supreme Court instead of being heard first in lower courts because it involves two states and a dispute over water. 

Reed Benson, a law professor at the University of New Mexico with decades of experience in water management, said the Supreme Court uses “special masters” to conduct extensive research, establish a record and make recommendations to the court in these water management cases.

“The Supreme Court is not set up to hold trials,” Benson said. “So, they need special masters to essentially play the role of a trial judge to tee up an interstate water dispute for the Supreme Court.”

Special Master Melloy is a senior appellate judge for the 8th U.S. Circuit Court based in Cedar Rapids, Iowa. He was appointed to this case in 2018, after the U.S. Supreme Court discharged Gregory Grimsal, a New Orleans-based attorney, without explanation.

Unlike a trial judge however, the special master does not make decisions but only advises the court.

“The special master conducts the proceedings, but he can’t actually decide anything. Only the Supreme Court itself has the power to decide these cases,” Benson said.

After the trial, the special master will file a report, which will be open to responses from the parties involved. Once the report and all the replies are submitted — if there’s no settlement — the parties would eventually present oral arguments before the U.S. Supreme Court and await its decision.

Benson said even without the uncertainty of the COVID-19 pandemic, that process takes a lot of time. “It is very difficult to predict when that report might be issued,” he said. “These cases tend to lend themselves to a lot of delays.”

Water in the desert

This isn’t the first fight New Mexico and Texas had over the Rio Grande.

The Supreme Court case originates from a deal hammered out between two irrigation districts and the federal government during the drought of the early 2000s. Elephant Butte Irrigation District and El Paso County Water Improvement District No. 1 agreed to share water throughout the drought.

In 2008, the two irrigation districts entered into an agreement with the U.S. Bureau of Reclamation. Neither Texas nor New Mexico were parties to the agreement.

The 2008 operating agreement was the subject of a 2011 federal District Court lawsuit that then-New Mexico Attorney General Gary King brought against Texas. King alleged the agreement gave too much water to Texas and shorted New Mexico.

Two years later, Texas filed the lawsuit in the Supreme Court, which agreed to take up the case in 2014, and granted New Mexico the opportunity to file a motion to dismiss the case.

Attorneys for New Mexico filed for a dismissal, denying the claims.

In 2014, the U.S. Bureau of Reclamation, the federal agency that operates reservoirs and built Elephant Butte as part of the Rio Grande Project, asked to intervene in the lawsuit. The federal agency sided with Texas, claiming New Mexico’s groundwater activity depleted water, both threatening the United States’ ability to fulfill the treaty obligation to Mexico and harming the agency’s ability to deliver water to irrigation districts.

Grimsal, the then-special master, finalized his first report in 2016, recommending the court reject New Mexico’s motion for dismissal, allow the federal government to join the lawsuit and reject irrigation districts joining as members to the suit.

In March 2018, the U.S. Supreme Court issued a unanimous opinion granting the federal agency’s request to be party to the lawsuit, and rejected New Mexico’s motion for dismissal and the irrigation district’s request to participate. The court’s opinion, written by Justice Neil Gorsuch, was limited to arguing who could participate — not the finer points of each party’s arguments.

After the decision, New Mexico filed counterclaims in 2018 against Texas and the U.S. Bureau of Reclamation. New Mexico attorneys said the federal government failed to allocate water fairly and alleged accounting issues about water allocations for Texas and Mexico. New Mexico alleged Texas’ groundwater pumping allowed Texas to take more surface water than its share and violated the compact. New Mexico also said Texas’ pumping requires greater releases from the Rio Grande to offset their groundwater use, causing indirect harm. 

New Mexico asked the court to award damages.

In an unusual order in April 2020, Melloy summed up his understanding of the case’s complexities, and what issues he thought would be determined at trial. They included: state laws governing water are inapplicable to the case; the exact amounts of river water each state should get; how much has groundwater development impacted the Rio Grande deliveries in the past or present; and how much water New Mexico can and cannot capture downstream of Elephant Butte Dam.

What happens now?

In an Aug. 19 filing, the Texas Attorney General’s Office wrote that the lead counsel for Texas, Stuart Somach, had an “unexpected, personal family emergency,” preventing him from attending the trial over several months. The office asked for the start date to be pushed back to March 2022, allowing Somach to attend in person or prepare another attorney. The office also wrote “considering the COVID-19 protocols discussed for in-person trial, additional time may provide better conditions for trial presentation.”

Attorneys representing New Mexico objected to the delay, saying other attorneys representing Texas could fill in. They also cited costs and scheduling issues they would incur if the trial’s start date were pushed back.

Special Master Melloy ruled Friday, Aug. 27, to split the trial in half, and it will include testimony from a list of witnesses that have yet to be selected by the parties. 

He decided the trial will be pushed back but only by a few weeks. It will be a virtual trial with testimony from a list of witnesses that have yet to be selected by the parties. The second half of the trial, with in-person testimony from experts on the technical aspects of the case, will take place in the spring, in Cedar Rapids, Iowa. 

Melloy described the compromise as  “splitting the baby a little bit,” because both parties would have to show pieces of their case to their opponents. 

“I do think we could separate out the issues in a way that we could, over the next two or three months, get a number of weeks of testimony concluded this fall and leave the more complex testimony for the spring,” Melloy said. 

The changes will also address worries over the increase of COVID-19 cases, Melloy said, because it would allow for witnesses concerned about the nationwide rise in infections to testify virtually.  

Melloy said he would determine a date for the virtual portion of the trial at a hearing this week on Thursday, Sept. 2.

Benson said it’s typical for U.S. Supreme Court cases, especially water disputes with their technical issues, to drag out over years.

“If this case doesn’t settle, then this litigation is certainly going to go on, many years into the future,” Benson said. “I would anticipate anyway, that this case could still have quite a ways to go.”