Judge OKs states’ plan to end Rio Grande dispute

By: - July 11, 2023 12:48 pm

Groundwater pools into the Rio Grande riverbed, near Sunland Park, New Mexico, in May 2022. A federal judge gave the nod to a plan to settle a lawsuit between Texas and New Mexico over Rio Grande water that has stretched into a decade of litigation. Courtesy of Diana Cervantes for Source NM

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 approve the plan over the objections of the federal government.

The plan and the objections

In 2013, Texas sued New Mexico in the U.S. Supreme Court, alleging that groundwater pumping below Elephant Butte Reservoir was shorting Texas’ share of Rio Grande water.

Texas said New Mexico’s actions violated the 1938 Rio Grande Compact — the agreement between Colorado, New Mexico and Texas to split the river’s waters. The federal government later joined the case, arguing that New Mexico pumping threatened its treaty with Mexico and contracts with regional irrigation districts.

Late last year, New Mexico, Texas and Colorado proposed a settlement establishing how Rio Grande water would be split below Elephant Butte Reservoir. New Mexico would receive 57% of the Rio Grande water while Texas would receive 43% (all excluding Mexico’s share). It establishes a new index that factors groundwater pumping into those formulas, which are based off of a period of drought from 1951-1978.

There would also be a requirement to measure how much water is crossing the Texas-New Mexico state line at the El Paso Gage.

Attorneys for the federal government argued the states could not make a deal without their approval, and said that implementing the plan would impose new burdens on federal agencies.

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 more than 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, a Democrat, hailed 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 the 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 early October. 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 and 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, justices may put greater weight on the federal government’s concerns if it submits 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.”

Source New Mexico is part of States Newsroom, a national nonprofit news organization.


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