Reply — Texas v. New Mexico

La te , = ,

i £.

— Ssareme Cat, Bi

7 ¥ILED

5 FEB 9 1980

No. 65, Original

’ OEY ae LAL

EETCHSE, RODAK, JR., CLERM

IN THE

Supreme Court of the United States

October Term, 1975

STATE OF TEXAS, Plaintiff

v.

STATE OF NEW MEXICO, Defendant

UNITED STATES OF AMERICA, /ntervenor

MOTION TO STRIKE OR FOR LEAVE TO FILE

RESPONSE AND NEW MEXICO’S RESPONSE TO

THE MEMORANDUM OF THE UNITED STATES

JEFF BINGAMAN,

Attorney General of New Mexico

RICHARD A. SIMMS,

Special Assistant Attorney General

New Mexico Interstate Stream

Commission

Room 101, Bataan Memorial Bldg.

Santa Fe, New Mexico 87503

February 8, 1980

SSS EEE fT AE.

VERGARA PRINTING CO. + SANTA FE, NEW MEXICO

SUBJECT INDEX

Page

INDEX OF AUTHORITIES ........ pee ae

MOTION TO STRIKE OR FOR LEAVE TO

Pulls a s 6 66 6 6s =

NEW MEXICO’S RESPONSE TO THE MEMORANDUM

er I wl ltl tl lw CG

INDEX OF AUTHORITIES

Cases:

California ex rel. Younger v. Tahoe Regional

Planning Agency, 516 F.2d 215 (9th Cir. 1975),

cert. den. 423 U.S. 868 (1975) ...... baw %

Dyer v. Sims,

ae Se a soe ws oe es ae

Petty v. Tennessee-Missouri Bridge Commission,

ee ig yg 8 8 ane

Miscellaneous:

Pecos River Compact, Act of June 9, 1949, ch. 184,

63 Stat. 159

ee a ee Sk k's ye ea

ere ae eS Sg. 5 le 8 6

oe oe ey 6 Ss eee atts by

Ee 2 = a a 6

S. Doc. No. 109, 81st Cong., Ist Sess XXVI

Se rae at eG kl kw kw 9

IN THE

Supreme Comet of the United States

October Term, 1975

No. 65, Original

STATE OF TEXAS, Plaintiff

v.

STATE OF NEW MEXICO, Defendant

UNITED STATES OF AMERICA, /ntervenor

MOTION TO STRIKE OR FOR LEAVE

TO FILE RESPONSE

Comes now the defendant, the State of New Mexico, and

hereby moves to strike the Memorandum of the United States

filed on February 2, 1980, or alternatively for leave to

respond thereto, and in support hereof states:

1. On August 20, 1975, the United States moved to inter-

vene and tendered its complaint in intervention, asserting the

need to protect the rights of certain Indian wards in New

Mexico, as well as certain interests in federal lands and facili-

ties situated within the Pecos River watershed.

2. On January 26, 1976, the Court adopted the Special

Master’s recommendations respecting the United States’ inter-

vention, effectively ordering that “‘(a)ll matters going to the

relief, if any, to which the United States is entitled and to the

impact of such relief on the rights of the two States, or

either of them, [are] expressly reserved for later action by the

Special Master and recommendation to the Supreme Court.”

3. Since December 30, 1975, when the Special Master filed

his report respecting the United States’ intervention, the

United States has not made an appearance or participated in

the litigation.

4. Following four years of litigation between the state

parties, the Special Master filed his report of September 7,

1979, making his findings respecting the “1947 condition”

as that term is used in the Pecos River Compact.

5. The United States did not attend the pre-trial, trial, or

post-trial proceedings and is not privy to the evidence adduced

by Texas and New Mexico.

6. The Court’s order of October 15, 1979, provided for the

filing of exceptions to the Master’s report, together with

supporting briefs, by November 29, 1979; reply briefs were to

have been filed by December 29, 1979.

7. The United States’ memorandum of February 2, 1980,

disregards the Court’s order of January 26, 1976, asserts no

exceptions pursuant to the Court’s order of October 15,

1979, and is, in any event, untimely.

8. The memorandum is factually incorrect, tending to

prejudice the State of New Mexico.

Wherefore, the State of New Mexico prays that the United

States’ memorandum be stricken or that New Mexico be

granted leave to file her response

Special Assistant Attorney General

New Mexico Interstate Stream

Commission

Room 101, Bataan Memorial Building

Santa Fe, New Mexico 87503

IN THE

Supreme Court of the United States

October Term, 1975

No. 65, Original

STATE OF TEXAS, Plaintiff

V.

STATE OF NEW MEXICO, Defendant

UNITED STATES OF AMERICA, /ntervenor

NEW MEXICO’S RESPONSE TO THE MEMORANDUM

OF THE UNITED STATES

Apparently, the United States’ memorandum is based upon

the Special Master’s report, the briefs of Texas and New

Mexico, and Senate Document 109, one of the many exhibits

introduced by the state parties. The United States did not

appear at or monitor trial, has not reviewed the exhibits,

and has not otherwise availed itself of the evidence. Not-

withstanding the Court’s order of January 26, 1976, which

segregated the interests of the United States “for later action

by the Special Master and recommendation to the Supreme

Court,” the United States is now urging that the exceptions

=S>

is

of Texas and New Mexico be overruled and the Master’s

report confirmed.!

Perhaps because the United States’ vantage point is rather

remote, its analysis of “the alternative interpretations of the

Compact offered by Texas and New Mexico” is essentially

unfounded and wrong. (Memorandum, p. 5). Coincidentally,

the United States’ memorandum tends to prejudice New

Mexico.

Ignorant of the administrative history of the Pecos River

Commission, the United States explains:

In particular, article III(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

1. Somewhat anomalously the United States explains that it now

has no interest in the lawsuit, but that it feels compelled to express

its views on the merits of the dispute between the states:

Although 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 memo-

randum as an aid to the Court and in response to the Court’s

order of October 15, 1979. (Memorandum, p. 2).

Aside from the questionable propriety of the United States’ gratuitous

opinion, we should point out that the United States has been a very

distant observer. It has done nothing in this litigation except respond

to the Master’s inquiry respecting whether he might file an interlocutory

report.

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, 81st Cong., Ist Sess. XX VI (1949) ), the parties to

the Compact have never agreed on precisely what is

the “present condition,” and the Pecos River Commis-

sion, which is composed of one voting commissioner

representing each of the two states, has never been able

to resolve this dispute, (Memorandum, p. 2, emphasis

added).

The fact of the matter is that the Pecos River Commission

did resolve this dispute after twelve years of continuing, cooper-

ative investigation into the 1947 condition. On January 31,

1961, the commission formally adopted the product of the

states’ mutual effort, i.e., the Review of Basic Data, as “‘findings

of fact of the Commission” pursuant to Art. V(d) 5-8. Based

upon the Review, the State of Texas fully concurred again on

November 9, 1962, in the formal commission finding that the

gross indicated departure potentially chargeable to New Mexico

for the years 1950 through 1961 was only 5,300 acre feet. The

amount was so small that Texas never sought to establish how

much, if any, of the indicated departure was chargeable to New

Mexico as having been caused by the activities of man. See,

Art. III(a) and New Mexico’s Objections to the Report of the

Special Master and Brief in Support Thereof, pp. 16-17.

In the process of reanalyzing the 1947 condition in order to

eliminate the engineering and arithmetical errors that distorted

it in the original engineering studies, the Pecos River Commis-

sion necessarily construed Art. III(a), Art. II(g), and Art. VI(a)

as they relate to the responsibilities of the commission and the

7

apportionment of Pecos River water. As in the interpretation of

a contract, the meaning the parties attribute to the words and

provisions of a compact governs the obligations assumed in the

agreement. Petty v, Tennessee-Missouri Bridge Commission,

359 U.S. 275 (1959). Most recently, the Ninth Circuit Court of

Appeals applied this view in California ex rel. Younger v. Tahoe

Regional Planning Agency, 516 F.2d 215 (9th Cir. 1975), cert.

den. 423 U.S. 868 (1975). In that case, California, one of the

two states that had by compact established the interstate Lake

Tahoe Planning Agency, sued the interstate agency of which the

state itself was a part, claiming that the agency had not followed

the interstate compact pursuant to which it operated. Sub-

stantively, the case involved a potentially ambiguous compact

provision respecting the majority vote necessary for the agency

to take “action.” The court held that mutually adopted com-

pact agency rules and.regulations cured whatever ambiguity

there might have been in the authorizing compact. The court

said:

This regulation evidences TRPA’s own construction of

the disputed statutory provisions and we should follow

the construction by those charged with the statute’s

execution unless there are compelling indications that it

is wrong. (516 F.2d, at 219).

In sum, the United States’ memorandum is incorrect in

asserting that the Pecos River Commission “‘has never been able

to resolve this dispute.” (Op. cit., p. 2). Not only did the com-

mission resolve the dispute engineeringly, but also as regards the

meaning of the compact. Despite the holding of this Court that

an individual state cannot take it upon itself to define its obliga-

tions under a compact (Dyer v, Sims, 341 U.S. 22 (1950) ),

Texas attempted in 1974 to unilaterally repudiate the mutual

construction of the compact to which it had agreed for 26

years. It is bad enough that Texas seeks to avoid the legal

consequences of the administrative history of the Pecos River

8

Commission; the United States should not now be permitted to

fuel that fire with unfounded statements of fact.

The United States is also incorrect in its assertion that “New

Mexico’s construction of the Compact would deprive Texas of

all waters in times of low flow. .. .””» (Memorandum, p. 5, f. 7).

Again siding with Texas, the United States argues that “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.’ ” (/d., p. 4, citing the Master’s

Report of September 7, 1979, p. 2). :

It is clear that the language of the compact supports New

Mexico rather than refuting her position. See, New Mexico’s

Objections to the Report of the Special Master and Brief in

Support Thereof, pp. 41-83, and New Mexico’s Reply to

Texas’s Objection, pp. 5-25. It is Texas’s contention that is not

supported, either by the express terms of the compact, its

explanation by Mr. Tipton, or by its administrative history. The

United States is simply not familiar with the evidence.

The notion that New Mexico is effectively contending that

she can rightfully dry up the river at the stateline is naive as

well. As noted in our brief in support of our objections, the

compact does not explicitly address the situation in which water

salvage is not effected to offset the projected post-1947 base

inflow depletion, but there can be no question that it was

contemplated that the supply in both states would suffer, as in

fact it has. Texas would lose the estimated 47 per cent of the

base inflow as measured at Avalon that reached the state line

before that depletion occurred. While New Mexico is entitled to

continue operation of the works constituting the 1947 condi-

tion stage of development in New Mexico, she would not be

able to increase storage capacity or change the source of

9

supply of uses from surface water to ground water if such

modifications would result in a depletion at the state line

greater than would have resulted from continued operation

of the works constituting the 1947 condition stage of devel-

opment. Consequently, when the base inflow is completely

depleted, and if water salvage has not been effected to offset

that depletion, New Mexico’s supply would be decreased by

53 per cent of the post-1947 base inflow depletion, assuming

all other things would remain unchanged, as we must to

intelligibly discuss the matter. The fact is that both states

suffer, and the compact, unfortunately, offers no solution

except to mandate water salvage in New Mexico by both states.

(See, S.D. 109, p. 120 and New Mexico’s Objections to the

neport of the Special Master and Brief in Support Thereof,

pp. 71-80.)

In conclusion, the United States’ memorandum is not only

uncalled for and untimely, it is wrong and prejudicial. It

comments on the Special Master’s report without the benefit

of the evidence adduced by the parties, and in view of the

United States’ own statement that it has virtually no interest

in this lawsuit, the memorandum is unwarranted and com-

pletely disregards the Court’s orders of January 26, 1976

and October 15, 1979.

R¢spectfilly submitted,

=

RICHARD A. SIMMS

Special Assistant Attorney General

New Mexico Interstate Stream

Commission

Room 101, Bataan Memorial Building

Santa Fe, New Mexico 87503

10

CERTIFICATE OF SERVICE

Pursuant to Rules 42(5) and 33 of the Supreme Court Rules,

I certify that three copies of the foregoing motion and response

were served upon counsel of record on February 8, 1980.

RICHARD A. SIMMS /

Special Assistant Attorney General

New Mexico Interstate Stream Commission

Room 101, Bataan Memorial Building

Santa Fe, New Mexico 87503 i