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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0004%3A6

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief for the United States
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 540

## Text

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& 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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0004%3A6. Public record. Not legal advice.