Reply Brief for the United States — Texas v. New Mexico

BD Spree Cour’, US

aS FLED 2a

es

” i. FEB 2 1980

& No. 65, Original

_JMICHAEL RODAK, JR., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1979

STATE OF TEXAS, PLAINTIFF

Vv.

STATE OF NEW MEXxIco

ON THE REPORT OF THE SPECIAL MASTER

MEMORANDUM OF THE UNITED STATES

WavDE H. McCree, Jr.

Solicitor General

Department of Justice

Washington, D.C. 20530

as a Fie Don ; f oe

: ey Wy +4 1 ied

;

a . re

-

, ‘

.? ,

Bs

d

i :

7

, bg

| -

ay

78

a E

| ’

a

Ty Fi

i, +

;

a

OF 7

3

‘Sa .

‘ ;

a:

P wd s ‘

D4 “ :

ie > 7

f

ks)

iP

in

12 - ~

i

‘ i

‘te "

®

rt ;

~~ , ; |

‘vi

we} 3 “| .

ad

= |

it

im]

a> i

; .

r 3

‘ :

»

as

4

La \ ;

a ‘ty —— 7

i

“as

| <

f :

ek ae mie

ier aia ae

wis

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 65, Original

STATE OF TEXAS, PLAINTIFF

v.

STATE OF NEw MEXICO

ON THE REPORT OF THE SPECIAL MASTER

MEMORANDUM OF THE UNITED STATES

1. This case involves the respective rights of New

Mexico and Texas to the waters of the Pecos River,

which rises in New Mexico and flows into Texas. In

1948, Texas and New Mexico entered into the Pecos

River Compact, and the following year the legislatures of

the two states and Congress ratified this interstate

agreement. See Pub. L. No. 91, ch. 184, 63 Stat. 159.

The Compact is designed “to provide for the equitable

division and apportionment of the use of the waters of

the Pecos River * * * [and] to make secure and protect

present development within the states” (Art. I, 63 Stat.

160). Toward these ends, the Compact attempts to

allocate water rights to New Mexico and Texas and

encourages the mutual cooperation of those states

through the offices of the Pecos River Commission. See

Arts. III-V, 63 Stat. 161-163.

(1)

In particular, Article IIl(a) of the Compact provides

that “New Mexico shall not deplete by man’s activities

the flow of the Pecos River at the New Mexico-Texas

state line below an amount which will give to Texas a

quantity of water equivalent to that available to Texas

under the 1947 condition.” 63 Stat. 161. Article II(g), in

turn, defines the “1947 condition” as “that situation in

the Pecos River Basin as described and defined in the

Report of the Engineering Advisory Committee.” 63

Stat. 160. Although the Report of the Engineering

Advisory Committee states that “[t]he 1947 condition

represents present conditions on the river” (S. Doc. No.

109, 8Ist Cong., Ist Sess. XXVI (1949)), the parties to

the Compact have never agreed on precisely what is the

“present condition,” and the Pecos River Commission,

which is composed of one voting commissioner represen-

ting each of the two states, has never been able to

resolve this dispute.

2. In 1975, Texas filed this suit for injunctive and

declaratory relief, claiming that New Mexico was not

complying with Art. III(a) of the Compact. 421 U.S. 927.

On November I1, 1975, the Court appointed the

Honorable Jean S. Breitenstein as Special Master and

directed him “to submit such reports as he may deem

appropriate.” 423 U.S. 942-943.! Pursuant to this

mandate and following extensive proceedings, the Special

Master compiled a report setting forth his views of New

Mexico’s obligations under the Compact. See Report of

Special Master on Obligation of New Mexico to Texas

'We note that the Special Master assisted the Pecos River

Compact Commission at the time of its inception and is thus

particularly familiar with the circumstances of this suit. See S. Doc.

No. 109, supra, at III.

Under the Pecos River Compact (August 13, 1979).2 The

Special Master concluded that “the 1947 condition is

that situation in the Pecos River Basin which produced

in New Mexico the man-made depletions resulting from

the stage of development existing at the beginning of the

year 1947 and from the augmented Fort Sumner and

Carlsbad acreage” (Report, supra, at 3, 41). Accordingly,

the “New Mexico diversions and uses [of the Pecos

River], taken as a whole, may not deplete the state line

flow below what it was at the beginning of 1947.” dd. at

43.3

The Special Master rejected Texas’ contention that the

situation or flow in 1947 is conclusively established by

the river routing study captioned “Summary of Op-

erations 1947” which was printed as an appendix to

the Report of the Engineering Advisory Committee, S.

Doc. No. 109, supra, at 144 App. The Special Master

2Althouth the United States initially intervened in this matter to

protect certain federal and Indian water rights (see 423 U.S. 1085), it

has now been determined that the resolution of this dispute will not

substantially affect the interests of the United States. Accordingly.

the United States has generally acted as an observer in the

proceedings before the Special Master and has actively participated

only to the extent requested by the Special Master. We have

nevertheless submitted this memorandum as an aid to the Court and

in response to the Court’s order of October 15, 1979.

‘We do not understand the Special Master to hold that New

Mexico must deliver to the stateline the same flow of water that

existed in 1947 regardless of the inflow of the Pecos River at the

Alamogordo Dam (see Spec. Mast. Rep.. supra, at 6-7) or other

natural conditions. Rather, New Mexico's man-made depletions may

not reduce the flow below the 1947 condition. That is, if the actual

flow of water and other natural conditions in a particular year

replicated the natural conditions in 1947, New Mexico’s man-made

depletions could not reduce the flow at the stateline below that

which actually existed in 1947. See id. at 21-22; Art. Ile): S. Doc.

No. 109, supra, at 112-116.

pointed out that this study was admittedly flawed and

that it did noi accurately describe the real situation that

existed in 1947, as intended by Articles IIl(a) and II(g)

of the Compact (Spec. Mast. Rep.. supra, at 2, 42). He

further noted that “(t]he failure of the routing study as a

definition or description is emphasized by the 30 years of

controversy which have produced no more than this

litigation” (id. at 42).

The Special Master also overruled New Mexico's

objections to his construction of the Compact. He first

observed that the course of proceedings at the time of

the enactment of the Compact demonstrated that the

1947 condition referred to the situation at the beginning

of that year and not the end, as contended by New

Mexico (id. at 43). In addition, he declined to construe

the Compact as protecting all New Mexico uses of water

and developments in existence in 1947. According to the

Special Master, New Mexico’s contention is refuted both

by the language of the Compact and by the fact that

“{t]he New Mexico contention, if carried to its ultimate,

would mean that in time of drought New Mexico could

use all the water if that were needed to service New

Mexico uses” (id. at 2).4

3. In our view, the Special Master has correctly

defined the “1947 condition” as that term is used in

Articles II{g) and IIl(a) of the Compact. As detailed in

the Special Master’s report, the language, legislative

history, and purposes of the Compact demonstrate that

+We support the Special Master's request that the Court rule on

his report even though he has not finally adjudicated whether New

Mexico is in fact overly depleting the Pecos River. The definition of

the 1947 condition contained in the report will serve as the basis for

extensive engineering studies and all further proceedings in this

litigation, and it therefore seems appropriate that the Court resolve

this question at this time.

it was intended to place a limit on New Mexico’s man-

made depletions roughly equivalent to the level of

depletions existing on January |, 1947.5 This interpreta-

tion of the Compact assures that both states will always

have a share of the waters of the Pecos River, although

the actual quantity of water available for consumptive

use in either state will vary from year to year depending

upon natural conditions. See S. Doc. No. 109, supra, at

112-118. In contrast, the alternative interpretations of the

Compact offered by Texas® and New Mexico’ would

‘The parties do not appear to challenge the Master's conclusion

regarding the “augmented Fort Sumner and Carlsband acreage”

(Spec. Mast. Rep., supra, at 3).

*Texas primarily contends that the 1947 condition is immutably

described in an appendix to the Report of the Engineering Advisory

Committee, captioned Summary of Operations 1947. See S. Doc.

No. 109, supra, at 144 App. Even Texas recognizes, however, that

this study is an artificial construct based on erroneous assumptions

and methodologies. It does not constitute an accurate description of

the conditions on the river in 1947 —the basis for the Compact. See

id. at XXVI, 112-118. Moreover, the Compact specifically provides

that the determination of New Mexico's obligations is governed by

“The Report of the Engineering Advisory Committee, supplemented

by additional data hereafter accumulated.” Art. Via), 63 Stat. 163

(emphasis supplied). And the history of the Compact demonstrates

that neither the states nor the Commission considered the Summary

of Operations as an immutable basis for apportioning the waters of

the Pecos River. See, e.g.. S. Doc. No. 109, supra, at 150-152.

’New Mexico urges that Article IIl(a) entitles it to use as much

water as its developments required in 1947. But Article IIIa)

expressly constitutes a limit on New Mexico's depletions and not a

guarantee of New Mexico's water use. New Mexico's position ts

further refuted by the contemporaneous explanation of the

Commission's engineer advisor. See S. Doc. No. 109, supra, at 112-

116 (remarks of R.J. Tipton). In addition, New Mexico's

construction of the Compact would deprive Texas of all waters in

times of low flow, thus defeating the express purpose of the

simply not “provide for the equitable division and

apportionment of the use of the waters of the Pecos

River.” Art. I, 63 Stat. 160.

It is therefore respectfully submitted that the excep-

tions of Texas and New Mexico to the Special Master's

Report be overruled and the Report confirmed.

WapbeE H. McCree, JR.

Solicitor General

FEBRUARY 1980

Compact to apportion the waters of the Pecos River equitably and

to protect the developments in both states. See Art. 1. 63 Stat. 160.

Similarly, the Special Master correctly rejected New Mexico's

claim that the 1947 condition refers to the situation at the end

rather than the beginning of 1947. Article II(g) states that the 1947

condition reflects the circumstances described in the Report of the

Engineering Advisory Committee. and that report is derived from

data compiled through the end of 1946 and does not include 1947

statistics. See also Tex. Rep. Br. at 11-15.

7 ne, ae

- Pare .

; as.

i Leg - i) : ;

ae ine! bis nA Se. 7