Judge OKs states’ plan to end Rio Grande dispute

Last week, a federal judge gave his stamp of approval on a proposed settlement to end a lawsuit between Texas and New Mexico over Rio Grande water. The move potentially ends a decade of litigation in the nation’s highest court with barely a splash.

U.S. 8th Circuit Judge Michael Melloy – overseeing the case as a special master – gave the nod last week to the plan proposed jointly by attorneys from New Mexico, Texas and Colorado.

In his order, he recommended the U.S. Supreme Court to approve the plan over the objections of the federal government.

Finally, the plan allows New Mexico and Texas some flexibility on water delivered at the state line, with guidelines for each state to follow if that delivery is above or under the agreed upon amount for each state. It imposes stricter penalties if New Mexico misses goals multiple years in a row.

“The Consent Decree answers the apportionment question, imposes a general duty of internal water management on New Mexico to achieve the apportionment,” Melloy wrote.

He further said the agreement sufficiently protects water obligated to Mexico in a 1906 treaty.

In over 123 pages, Melloy outlined his argument for how the proposed plan was “fair and reasonable” and why the objections of the federal government can be addressed in other places – such as state courts and proceedings.

“There is nothing unreasonable or unfair in accepting the Consent Decree that protects the Texas apportionment and the Treaty water today leaving details concerning actions by New Mexico for future resolution,” Melloy wrote.

He disagreed that the plan would impose new obligations on the federal government, writing that the changes “amount to additional nuance,” to how federal agencies have operated over the past four decades.

While the court allowed the federal government to intervene in the case, Melloy wrote, many of those factors– such as the federal government’s former alignment with Texas – no longer exist.

“The United States should not be allowed to block the Consent Decree and force the Compacting States to continue litigating this original jurisdiction action against their jointly and clearly expressed wishes,” Melloy wrote.

New Mexico Attorney General Raúl Torrez celebrated the decision in a press release last Friday.

“The Special Master’s decision is one more step in the right direction for New Mexicans and other arid western states,” he said in a statement. “We agree full heartedly with (the) decision and look forward to a full vindication of our rights as states, to decide our own futures in terms of water use.”

The U.S. Supreme Court ended its session in late June and won’t reconvene until late September. The court will address Melloy’s report, and possibly call for any objections to be submitted to the court by a deadline – which can range between 45 days to 60 days.

The next step is unclear until the court is back in session, said Samantha Barncastle, who represents Elephant Butte Irrigation District in the case. The irrigation district in Southern New Mexico is not a party in the case but is still involved in the settlement discussions, addresses the court and holds significant water rights in the region.

“Our next step will depend on the decisions the United States has to make as to whether they take exception,” Barncastle said.

She will talk with the board during a closed session Thursday in Las Cruces about the report, she said.

“The board remains committed to working with all of the agencies involved, regardless of what court orders come down towards solutions that work for our community as a whole,” she said.

In water legal battles, it’s not over until it’s over.

The federal government’s situation is unusual in this case, said Reed Benson, a professor in water law at the University of New Mexico School of Law.

“I think that the feds are going to have a hard time keeping the Supreme Court from approving the settlement,” Benson said. “They clearly did not convince the special master that their interests were sufficiently compelling to block the settlement, and he thinks it’s a reasonable settlement.”

However, because the U.S. Supreme Court allowed the federal government to intervene in the case; they may put greater weight on the federal government’s concerns if they submit objections to the special master’s report.

“This aint over,” Benson said. “Until it is, we all should recognize there may still be a twist in this tale.”