Hills that were once islands are now connected to the shoreline of the Elephant Butte Reservoir, on Friday, Sept. 23 2022. (Photo by Corrie Boudreaux / El Paso Matters)
The Texas and New Mexico fight over Rio Grande water is headed to court in Iowa early next year unless a settlement can be reached within weeks — a shrinking prospect attorneys said as they prepare for trial.
“Settlement was not successful,” Lee Leininger, an attorney with the U.S. Department of Justice, said of the monthslong confidential talks at a hearing Tuesday in the U.S. Western District of Texas in El Paso.
Former Judge Arthur Boylan, the appointed mediator in the case, said the remaining issues between the federal government and the states of New Mexico and Colorado are “dealbreakers, but are not insurmountable.” He could not speak to the specifics of the disagreements, since the negotiations are confidential, but attorneys for Colorado and New Mexico have raised concerns on the federal government’s role in the dispute. Colorado is named as a defendant in the case.
Boylan said a settlement could be possible.
Jeff Wechsler, attorney for New Mexico, said the state was ready for trial, but was “still open” for settlement possibilities.
Lawyers for the irrigation districts, who are “amici curiae” or “friends of the court,” asked for more time for a settlement and a later trial date.
Samantha Barncastle, who represents the Elephant Butte Irrigation District, urged Judge Michel Melloy, the special master overseeing the case, to delay the trial to March or April. She said a settlement would offer “better relief that’s longer-lasting” than a trial, but that attorneys could not negotiate and prepare arguments at the same time.
“We’re almost there,” she said. “If you set the trial in January, we will not get there.”
Barncastle said going to trial would cost millions more taxpayer dollars and take another three to five years before a decree could be handed down.
Texas attorney Stuart Somach said the remaining settlement issues were out of his hands and between other parties. He disagreed on pushing back the trial further, saying there has to be a limit on the time taken.
“We filed this in 2013,” he said. “In 10 years, we haven’t been able to even finish the trial.”
On Tuesday, Melloy ordered the trial to start on Jan. 17, 2023, but also urged the parties to take advantage of the further settlement talks, saying negotiation would better solve issues between them.
The in-person trial is expected to delve into expert testimony and would be a continuation of an October 2021 virtual trial which provided witness testimony. Melloy estimated the trial could last between four to six weeks.
Since January, the states and the federal government have been in negotiations to bring an end to the 9-year-old lawsuit before the Supreme Court. Officially called Original No. 141 Texas v. New Mexico and Colorado, the legal fight has cost New Mexico and Texas taxpayers more than $30 million combined.
The litigation stems from allegations that New Mexico is shorting Texas’ Rio Grande portion by groundwater pumping below Elephant Butte Reservoir, violating the 1938 Rio Grande Compact. The compact lays out how the states should split the waters. Colorado is named as a defendant since it is a signatory on the compact, but is not presenting a case on the allegations.
The fight in the Supreme Court is the culmination of decades of lawsuits over the management of the river.
A series of lawsuits erupted in the early 2000s between irrigation districts in Southern New Mexico and Far West Texas and the federal government over water management. Negotiations produced an eleventh-hour settlement called the 2008 Operating Agreement signed by Elephant Butte Irrigation District, El Paso County Water Improvement District No.1 and the U.S. Bureau of Reclamation to change. The agreement explains the method of splitting the water and how balances for each of the districts are carried over. Neither Texas nor New Mexico were included in the agreement.
In 2011, the state of New Mexico sued in federal court, claiming the agreement allowed the federal government to short New Mexico on river water and gave too much to Texas. That lawsuit is on hold after Texas filed its claim in the Supreme Court, alleging New Mexico pumping removed tens of thousands of acre-feet of water from the river, water that was allocated downstream in Texas. Texas filed the lawsuit in 2013, and was joined by the federal government, which agreed that New Mexico’s pumping was threatening both the compact, and the U.S. treaty obligations to deliver Rio Grande water to Mexico.
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