Amicus Curiae Brief — Texas v. New Mexico

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Table of Contents

TABLE OF AUTHOR ITIEG..............:cccccccscssessseseseneseseereeenees

INTRODUCTION AND STATEMENT OF

INTEREST OF AMICUS CURIAE .........00s0s0s+ssseseserereseeenees

SUMMARY OF ARGUMENT.............:ccccsssssseseeeessseneeeeneneeees

Potential hardship to Amici should not

prohibit the Supreme Court of the United

States from granting the relief recommended

by the Special Master

PIG i cccecsccsccsvcrsnsscseresscenensmnnenencssvscsssasteusesqnsnnssnerenteesecesees

Granting the relief recommended by the

Special Master would not violate the

Eleventh Amendment.

PITT BiB ccececcccsscvsnseceseesescorscsceserssosesenecnscssossesssecsocsoosesecoesees

The Special Master's remedy of payback

is a proper remedy for New Mexico's

departure from the terms of the Pecos

River Compact.

10

13

The Pecos River Compact is a contract

between the State of Texas and the State

of New Mexico with the authority of

federal law.

EE 16

The repayment remedy recommended by

the Special Master is an appropriate remedy

for New Mexico's departure from the Pecos

River Compact and is a valid application of

contract damages.

EE 18

Table of Authorities

Description Page

CONSTITUTIONAL PROVISIONS

a i _sscdeentcpintalaoosionee $.01,03

INTERSTATE COMPACTS

Pecos River Compact, Article VIID.... eee 12

CASES

Colorado v. Kansas, 206 U.S. 46, 117 (1907).......... 6,13

Colorado v. Kansas, 320 U.S.383 (1943)... 6,7,8

Colorado v. New Mexico, 459 U.S. 176 (1982)....... 13

Cort v. Ash, 422 U.S. 66 (1975)...........ccccccccccsssecesseeeees 16

Green v. Biddle, 8 Wheat (21 U.S.) (1823).............. 15,17

Kentucky v. Indiana, 281 U.S. 163, (1930)............. 16,17

North Dakota v. Minnesota, 263 U.S. 365

ERSTE 2 11

Sporhase v. Nebraska, 458 U.S. 941, 956-957

a uthipundeninenesunense 13

Texas v. New Mexico, 462 U.S. 554, 564

EE Se a a ce ee 15

Texas Water Rights Commission v. Wright,

TET a 12

Virginia v. West Virginia, 246 U.S. 565

a senlasioninienninianeeseosocee 17

West Virginia ex. rel. Dyer v. Sims, 341 U.S. 22

ain ain isisettniepesciadteanianieanabnionpenienneens 14

Description Page

STATUTES

TEX. WATER CODE ANN. chapter 11, subchapter G

(Vernon Pamph. Supp. 1987)........cccsccsessesecereeeereeseeees l

TEX. WATER CODE ANN. § 11.021-11.022, 11.121

(Vernon Pamph. Supp. 1987).........ccccsccsssseseeeseeseeseeees 11,12

TEX. WATER CODE ANN. 11.025 (Vernon Pamph

SE |) nn ee 12

iV

INTRODUCTION AND STATEMENT OF

INTEREST OF AMICUS CURIAE

A. Amicus Curiae

Amicus Curiae, Red Bluff Water Power Control District, is

a political subdivision of the State of Texas created in 1934.

By virtue of a "Master Contract" executed in March, 1934, Red

Bluff Water Power Control District is composed of, and has

succeeded to the water rights of, Loving County Water

Improvement District No. 1, Reeves County Water

Improvement District No. 2, Ward County Water Improvement

Districts Nos. 2 and 3, Ward County Irrigation District No. 1,

and Pecos County Water Improvement Districts Nos. 2 and 3.

Red Bluff Water Power Control District is the owner and

operator of Red Bluff Reservoir, a 300,000 acre-foot capacity

reservoir constructed in 1936 and located approximately ten

miles south of the Texas-New Mexico state line on the Pecos

River. The Pecos River and Red Bluff Reservoir are the sole

source of water for irrigation in the counties served by Red

Bluff Water Power Control District and its member districts.

Texas adjudicated the water rights of Red Bluff Water

Power Control District in 1985. The adjudication is based on

legal development of the water rights and the extent to which

they have been exercised. The proceedings were conducted

pursuant to the Water Rights Adjudication Act, TEX. WATER

CODE ANN. chapter 11, subchapter G (Vernon Pamph. Supp.

1987). To summarize Red Bluff Water Power Control

District's water rights as finally determined, they are:

a. The right to maintain Red Bluff dam and reservoir on

the Pecos River and impound therein 300,000 acre-feet of

water for irrigation and hydroelectric generation purposes, and;

b. The right to divert and use water for irrigation to the

extent of 292,500 acre-feet per annum to irrigate 145,000 acres

of land, which water may come either from releases from the

reservoir or from inflows originating below the dam.

B. Detriment to Amicus Curiae

In the years prior to and after the completion of the Red

Bluff reservoir, extensive irrigated farming activities were

conducted on the land served by the Red Bluff Water Power

Control District and its member districts. Lush crops of cotton,

alfalfa, and vegetable crops were raised in the areas irrigated by

the districts and the agricultural economy flourished. (Tr.

389-391, 5/21/86). Between 1934 and 1939 an average of

19,981 acres of land were irrigated with water furnished by the

Red Bluff Water Power Control District, with 32, 028 acres of

land being irrigated in 1940. (Tx. Ex. 11a, tables 76, 83).

On December 3, 1948 the State of Texas and the State of

New Mexico signed the Pecos River Compact in order to

resolve existing and future controversies and to divide and

apportion the water of the Pecos River. The State of New

Mexico agreed that it would not deplete by man's activities the

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

state line below the amount which would give to Texas the

quantity of water equivalent to that available to Texas under the

2

"1947 condition.” As stated by the Special Master, "the

bargain struck in the Compact allowed New Mexico to retain

the benefits of past development in the Pecos River Basin

during the pre-Compact period. Sen Doc. 109, Stip. Exh. 1 at

3-8. But in return, New Mexico had to forego increased uses

by man after 1947." Despite the agreement, as found by the

Special Master, New Mexico did not keep its side of the

bargain.

The Special Master has determined that the State of New

Mexico has, over a period of years, breached her duties under

the Pecos River Compact by permitting and countenancing

prohibited depletions by man's activities of the waters of the

Pecos River, such that there has been a cumulative reduction in

the quantity of water that New Mexico had compacted to

deliver to the Texas-New Mexico state line. The Special

Master concluded that the total negative departure from the

1947 condition resulting from man's activities and chargeable

to New Mexico, for the period from 1950 to 1983, was

340,000 acre-feet of water and has recommended that New

Mexico deliver to Texas that quantity of water over a period of

ten years, at a minimum rate of 34,010 acre-feet per year.

Red Bluff Water Power Control District, its member

districts, and their constituents have been significantly affected

by the actions of the State of New Mexico which have been

contrary to the obligations imposed by the Pecos River

Compact. These activities and departures have significantly

lessened inflows of water in the Pecos River and have reduced

the firm yield of Red Bluff Reservoir, resulting in a substantial

3

impairment to the agricultural economy in the four counties

served by Red Bluff Water Power Control District and its

member districts. (Tx. Ex. 79; Tr. 397-399, 5/21/86; Special

Master's Report at 30).

Numerous persons in these counties have suffered serious

economic losses due to the lack of water to irrigate farmland,

and thousands of acres of land which were once green with

irrigated crops are now no more than dusty fields. (Tr.

397-399, 5/21/86). In at least one of the districts, Ward

County Water Improvement District No. 3, no farming

activities have been conducted at all in recent years due to the

lack of water, although the district has maintained its headgates

and diversions facilities in anticipation of the time when water

would again flow from New Mexico. (/d. at 400-401).

Depressed conditions and economic hardship in the counties

served by the Red Bluff Water Power Control District, caused

by New Mexico's departure from the 1947 condition, would be

improved if New Mexico were required to comply with the

agreements it entered into when it signed the Pecos River

Compact, and to repay what it has kept from Texas from 1950

to 1983. (Tr. 404-405, 5/21/86).

SUMMARY OF THE ARGUMENT

Potential hardship on the New Mexico municipalities

which have filed an Amici Curiae brief and other New Mexico

citizens residing in the Pecos River Basin in New Mexico,

should not prohibit the Supreme Court of the United States

from granting the relief recommended by the Special Master.

4

The interests of Texas and her citizens have been signific.: 1tly

affected by the actions of the State of New Mexico contrary to

the Pecos River Compact, while New Mexico has been much

better off because of the departures.

The relief recommended by the Special Master does not

violate the Eleventh Amendment to the United States

Constitution, since requiring New Mexico to repay water

which was withheld from Texas contrary to the obligations

imposed by the Pecos River Compact would not constitute an

invasion of New Mexico's property in order to compensate

individual citizens residing in Texas. The relief recommended

by the Special Master would only require New Mexico to repay

water that belongs to Texas by virtue of the Pecos River

Compact and which New Mexico has kept from Texas.

The Pecos River Compact is a contract between the State of

Texas and the State of New Mexico with the authority of

federal law. The relief recommended by the Special Master is

not inconsistent with the terms of the Pecos River Compact and

is a proper remedy for New Mexico's breach of its obligations

under the Pecos River Compact. To conclude otherwise would

deprive Texas of the relief to which she is entitled.

POINT I

Potential hardship to Amici should not prohibit

the Supreme Court of the United States from

granting the relief recommended by the Special Master,

which compensates Texas for water withheld by

New Mexico contrary to its obligations under

the Pecos River Compact.

Amici have asserted that the Court should not order the

relief recommended by the Special Master because of the

potential hardship such relief might impose upon them. Amici

relies upon the Court's opinion in Colorado v. Kansas, 320

U.S. 383 (1943), a non-compact, equitable apportionment case

and one of a series of litigations involving the two states’

respective rights in the Arkansas River. The Court had

previously dismissed an Original Bill filed by Kansas seeking

to restrain Colorado from diverting, or permitting anyone under

her authority from diverting, waters of the Arkansas River

within Colorado, because Kansas had failed to present

sufficient evidence to the Court demonstrating that it was

entitled to the relief it requested. Colorado v. Kansas, 206

U.S. 46, 117 (1907).

As noted by the Court in the latter suit: "In our former

decision we ruled that Kansas was not entitled to a specific

share of the waters as they flowed in a state of nature, that it

did not appear that Colorado had appropriated more than her

equitable share of the flow, and that if Kansas were later to be

accorded relief, she must show additional takings working

serious injuries to her substantial interests." Colorado v.

Kansas, 320 U.S. 383, 391-392 (1943). It was obvious to the

Court in the first proceeding howevez, that if the depletion of

the waters of the Arkansas River continued to increase there

would come a time when Kansas could rightfully call for relief

against the action of Colorado. 206 U.S. at 117-118.

In the later case, Kansas alleged that in the interim since the

Court's prior decision, Colorado users had increased their

appropriations and diversions, and threatened to further

increase them, to the injury of the Kansas users. Colorado v.

Kansas, 320 U.S. 383, 388 (1943). The Court again held

however, that Kansas failed to sustain her burden of proof

because she did not demonstrate that Colorado's use of the

waters of the Arkansas River had materially increased, and that

the increase worked a serious detriment to the substantial

interests of Kansas. /d. at 400. In rejecting Kansas’ claim that

Colorado had substantially and injuriously aggravated

conditions which had existed in Kansas at the time of the prior

suit, this Court reaffirmed the standard of review it would

apply in equitable apportionment cases:

The lower State is not entitled to have the stream flow

as it would in nature regardless of need or use. If,

then, the upper State is devoting the water to a

beneficial use, the question to be decided, in the light

of existing conditions in both States, is whether, and

to what extent, her action injuries the lower States and

her citizens by depriving them of a like, or an equally

valuable, beneficial use.

Id. at 393. In determining whether a state is using, or

threatening to use, more than its equitable share of the benefits

of a stream, "all the factors which create equities in favor of

one State or the other must be weighed... ."_ /d. at 394.

It is proper for the Court to consider, in equitable

apportionment cases as the New Mexico Amici have stated, the

injuries to existing uses and economic interests in all of the

affected States. No relief, retroactive or prospective, was

granted by the Court in Colorado v. Kansas because the

evidence did not disclose that Kansas had significant interests

which had been seriously affected by Colorado's use of the

waters of the Arkansas River. /d. at 398-399. On the other

hand, Colorado had a substantial investments in canals,

reservoirs, and farms which had grown steadily due to

irrigation. The Court noted that granting Kansas’ requested

telief would inflict serious damage on existing agricultural

interes‘s in Colorado and would operate to deprive some

citizens of their means of support. /d. at 393.

The issues and facts presented to the Court in Colorado v.

Kansas are distinguishable from the issues and facts that exist

in the controversy between the State of Texas and the State of

New Mexico that is now presented to the Court for resolution.

As note by Mr. Justice Douglas, the Court's opinion in

Colorado v. Kansas, is limited to the facts presented to the

Court. See Nebraska v. Wyoming, 325 U.S. 589, 610-611

(1945). The differences extend beyond the mere fact that

Colorado v. Kansas involved a non-compact, equitable

apportionment and the present controvery involves a State's

failure to deliver a specified amount of water which it had

agreed to deliver pursuant to a binding compact with another

State. Assuming that the application of a weighing test is

&

proper, the evidence discloses, and the Special Master

recognized, that the lower basin State, Texas has suffered

serious damage to an existing and bountiful agricultural

community, whereas New Mexico's irrigation practices and

agricultural economy have flourished because New Mexico

“has had the advantage of more than its equitable share of water

during the period 1950 to 1983." (Tx. Ex. 79; Tr. 397-399,

5/21/86; Special Master's Report at 42).

After the release of the Special Master's report which

recommended requiring New Mexico to repay to Texas the

water which it had failed to deliver pursuant to its compact

obligations, New Mexico requested a hearing on the issue of

Ixew Mexico's ability to comply with that requirement and the

economic hardship it would impose. At the hearing, New

Mexico presented evidence on the economic loss that would be

incurred if New Mexico were required to shut down pumpage

in the Roswell basin of the Pecos River. The Special Master

was not persuaded by this testimony and noted:

With regard to secondary impacts, I am quite skeptical

of their validity, a skepticism that appeared to be

shared to some extent by New Mexico's econimic

expert, Dr. Snyder, see Tr. 197-198 (5/20/86), as well

as by Texas’ economic expert, Mr. Wright, see Tr.

376-379 (5/20/86). . . . While New Mexico will

undoubtedly suffer some economic loss from being

required to deliver water to Texas, the amount is too

speculative to quantify.

(Special Master's report at 24). Assuming that the Court is

bound to consider potential hardship to New Mexico, then

apparent that New Mexico has failed to sustain her burden of

proof in this regard.

The New Mexico Amici’s assertion that their water rights

will be cut off if the Court adopts the water payback remedy

recommended by the Special Master was also rejected by the

Special Master:

While it is clear that prior appropriation governs any

curtailment of water rights by New Mexico to meet its

Article III(a) and repayment obligation under the

proposed relief, curtailment is not the only method of

internal ordering open to New Mexico. As disclosed

in the testimony of the New Mexico State Engineer on

cross-examination, it is possible for New Mexico to

purchase or condemn water rights and thea (i) pump

the water directly into the river in the case of ground

water rights or (ii) curtail diversions in case of surface

water rights. See Testimony of Stephen E. Reynolds,

Tr. 56-60 (5/20/86). . . . Thus it is clear that New

Mexico has other means of meeting a deliver

obligations than curtailment of pumpage by junio:

rights holders in the Roswell Basin.

(Special Master's Report at 34-35). The Court is not asked,

however, to provide a specific way for the shortages New

Mexico has caused to be repaid. Rather, once the Court

concludes the extent of the shortages, New Mexico has the

flexibility to redress them in whatever way she should choose.

10

POINT Il

Granting the relief recommended by the Special Master

would not violate the Eleventh Amendment.

Under the Eleventh Amendment to the United States

Constitution, the Supreme Court of the United States is without

jurisdiction to award damages to individual citizens of one State

for injuries caused by another State. The New Mexico Amici

relies upon this Court's decision in North Dakota v.

Minnesota, 263 U.S. 365 (1923), in arguing that the Court is

prohibited by the Eleventh Amendment from awarding

damages to Texas for New Mexico's departure from its

obligations imposed by the Pecos River Compact. The New

Mexico Amici’s reliance upon the Eleventh Amendment is

misplaced. The New Mexico Amici cannot argue on the one

hand as they have, that the waters of the Pecos River which

originate in New Mexico "[are] the property of the State,”

while arguing on the other hand that the award of water

damages to Texas is prohibited because Texas appropriators

would benefit from the water. Such an argument ignores both

the provisions of the Pecos River Compact and Texas law.

Texas law provides that the "water of the ordinary flow,

underflow, and tides of every flowing river, natural stream,

and lake, and of every bay or arm of the Gulf of Mexico, and

the storm water, floodwater, and rainwater of every river,

natural stream, canyon, ravine, depression, and watershed in

the state is the property of the state." TEX. WATER CODE

ANN. § 11.021 (Vernon Pamph. Supp. 1987). The right to

11

use state water may be acquired by appropriation, after

application to the Texas Water Commission. /d. §§ 11.022,

11.121. However, the fact that Texas may grant rights of use

to its citizens does not diminish the fact that the water does not

lose its character as state water when appropriated pursuant to

rights granted under permits issued by the Texas Water

Commission. Texas Water Rights Commission v. Wright, 464

S.W.2d 642, 647 (1971) (the right to use state water may be

acquired by appropriation, but the State is at all times the owner

of the corpus of the water subject only to the exhaustion of the

corpus as a result of beneficial use). See TEX. WATER

CODE ANN. § 11.025 (Vernon Pamph Supp. 1987) (a right to

use state water under a permit or a certified filing is limited not

only to the amount specifically appropriated but also to the

amount which is being or can be beneficially used . . . .).

The Pecos River Compact also implicitly acknowledges the

nature of Texas’ interest in the waters’of the Pecos River: "the

provisions of the Pecos River Compact may not interfere with

the right or power of either state to regulate within its

boundaries the appropriation, use and control of water." Pecos

River Compact, Article VIII.

If the Eleventh Amendment argument is accepted, the

Court would eliminate or at least seriously hinder its power of

equitable apportionment, because the Eleventh Amendment

applies not only to the recovery of damages by citizens of one

state from another state, but applies to “any suit in law or in

equity, commenced or prosecuted against one of the United

States by Citizens of another State .. . . U.S. CONST.

12

Amend. XI. If the Eleventh Amendment argument had been

adopted by the Court in its equitable apportionment cases, there

would never had been an instance where the Court would have

been able to sustain its jurisdiction, because of the individual

rights in the interstate water at issue. But as held by the Court

in Colorado v. New Mexico, 459 U.S. 176, 182n.9 (1982),

the Court is able to sustain its jurisdiction in spite of the

Eleventh Amendment challenges, because of substantial

interests of the state in its water resources:

Because the State of Colorado has a substantial interest

in the outcome of this suit, New Mexico may not

invoke its Eleventh Amendment immunity from federal

actions by citizens of another State. The portion of the

Vermejo River in Colorado is owned by the State in

trust for its citizens. . . .While C.F. & I. will most

likely be the primary user of any water diverted from

the Vermejo River, other Colorado citizens may jointly

use the water or purchase water rights in the future. In

any event, Colorado surely has a soverign interest in

the beneficial effects of a diversion on the general

prosperity of the State. Faced with a similar set of

circumstances in Kansas v. Colorado, 206 U.S. 46,

99, 27 S.Ct. 655, 688, 51 L.Ed. 956 (1907), we

concluded that "(t)he controversey rises . . .above a

mere question of local private right and involves the

matter of state interest and must be considered from

that standpoint.”

A state's interest in its water does not exist in a vacuum,

but rather exists in main part due to the state's sovereignty over

its natural resources and its interest in protecting the rights of

its citizens. See, e.g., Sporhase v. Nebraska, 458 U.S. 941,

956-957 (1982). The compelling state interests which were

recognized by the Court in Colorado v. New Mexico and

Kansas v. Colorado in rejecting the Eleventh Amendment

13

argument, are just as valid in the present controversy and

provide the basis for the Court's jurisdiction in ordering the

implementation of the remedy recommended by the Special

Master.

POINT il.

The Special Master's remedy of payback is a

proper remedy for New Mexico's departure

from the terms of the Pecos River Compact.

A. The Pecos River Compact is a contract between the State of

Texas and the State of New Mexico with the authority of

federal law.

At the May 21, 1986 hearing on remedies, New Mexico

asserted for the first time that the Pecos River Compact does

not authorize relief for past diversions from the obligations

created by the compact. Specifically, New Mexico argued, and

the New Mexico Amici submits, that the common law of

contracts does not apply to the obligations created under the

compact, therefore the remedy of repayment is improper. The

New Mexico Amici reject the Special Master's interpretation of

the Court's opinion in West Virginia ex. rel. Dyer v. Sims, 341

U.S. 22 (1951), and appear to misinterpret Mr. Justice

Brennan's statement in the Court's previous opinion in his

proceeding (congressional consent transforms an interstate

compact into a law of the United States). The New Mexico

Amici imply that compacts are not contracts subject to

contractual remedies, arguing that after Congressioqal consent,

a compact becomes a federal statute.

14

Interstate compacts are created when two or more states

enact essentially identical statutes that establish and define the

compact and what it is to do. All contracts consist of an offer

and acceptance. In the case of interstate compacts, both the

offer and acceptance exist in the form of legislative acts. The

New Mexico Amici do not question the fact that a contract is

created when two or more states enter into a compact because

the Court has conclusively resolved that issue. The New

Mexico Amici however, views the consent of Congress to an

interstate compact as a metamorphic act, which transforms a

contract between two or more states into a federal law to be

interpreted the same as federal statutes.

The Court has indeed often held, as stated by Mr. Justice

Brennan, that "congressional consent transforms an interstate

compact within this clause into a law of the United States."

Texas v. New Mexico, 462 U.S. 554, 564 (1983). However,

the Court has expressly recognized the contractual nature of an

interstate compact, and the fact that a congressionally approved

compact has the effect of federal law for jurisdictional purposes

does not change the compact's original contractual character:

If we attend to the definition of 2 contract, which is the

agreement of two or more parties, to do or not to do

certain acts, it must be obvious that the propositions

offered, and agreed to by Virginia, being accepted and

ratified by Kentucky, is a contract. In fact, the terms

compact and contract are synonymous....

Green v. Biddle, 8 Wheat (21 U.S.) 1, 92 (1823). In

acknowledging the Court's jurisdiction to determine

controverted issues arising under an interstate compact, Chief

15

Justice Holmes later stated that the:

Court has the authority and cuty to determine for itself

all questions that — to-the obligations of the

contract alleged. fact that the solution of these

questions may involve the determination of the effect

of the local legislation of either State, as well as of acts

of Congress which are said to authorize the contract, in

no way affects the duty of this Court to act as the final,

constitutional arbiter in deciding the questions properly

presented.

Kentucky v. Indiana, 281 U.S. 163, 176 (1930).

B. The repayment remedy recommended by the Special

Master is an appropriate remedy for New Mexico's

departure from the Pecos River Compact and is a valid

application of contract damages.

At the May 21, 1986 hearing on remedies, New Mexico

also argued that the Pecos River Compact, by its express

terms, does not contemplate an accumulation of debits and

credits, or a repayment to Texas of accumulated negative

departures from the 1947 condition. The New Mexico Amici

insist that the remedy recommended by the Special Master may

only be "inferred from the statute itself or its legislative

history," and requests the Court to apply the four-part test for

determining whether a remedy in favor of private parties other

than the Federal government or public parties is implicit in a

Statute not expressly providing for a private remedy, which the

Court established in Cort v. Ash, 422 U.S. 66 (1975). The

New Mexico Amici argue that the remedy “must be found

within the statute and cannot be brought in from without the

Statute because the Pecos River Compact is a federal law, and

16

not a contract.

The Court has not only determined that an interstate

compact imposes a contractural obligation between the

contracting States, see Green v. Biddle and Kentucky v.

Indiana, supra, the Court has in fact recognized that contractual

remedies may be granted for a State's breach of its compact. In

Virginia v. West Virginia, 246 U.S. 565 (1917), the Court

addressed its jurisdiction to enforce a contract made by the two

states wherein West Virginia assumed a portion of Virginia's

debt. In a prior suit Virginia invoked the jurisdiction of the

Court to enforce the contract and judgment was issued for

Virginia in the amount of $12, 393,929.50 with interest. /d. at

589. The Court noted that the judgment was based on three

propositions, one of which was the fact that the "obligation of

West Virginia was the subject of a contract between the two

States, made with the consent of Congress... ." /d. The

Court then addressed the “question of power to enforce against

a State when admitted into the Union a contract entered into by

it with another State with the consent of Congress..." /d. at

593.

Chief Justice White stated on behalf of the Court that a

power exists to enforce against a State its duty under its

contract with another State and to prevent it from doing wrong

to that State. If no such power existed, the Chief Justice

wrote, "the government under the Constitution would not be an

indissoluble union of indestructible States each having the

potency with impunity to wrong or degrade another -- a result

which would inevitably lead to a destruction of the union

17

between them." /d. at 602. The Court must have jurisdiction

to compel a State's obedience to the duties it assumes by

entering into an interstate compact. In fact, in its previous

opinion in this proceeding, the Court acknowledged its

jurisdiction to compel New Mexico's compliance with the

Pecos River Compact when it stated: "Texas' right to invoke

the original jurisdiction of this Court was an important part of

the context in which the Compact was framed; indeed, the

threat of such litigation undoubtedly contributed to New

Mexico's willingness to enter into a compact.” Texas v. New

Mexico, 462 U.S. 554, 569 (1983).

Mr. Justice Brennan also stated that in the absence of an

expression provision or other clear indication that a bargain to

that effect was made, the Court "shall not construe a compact to

preclude a State from seeking judicial relief when the compact

does not provide an equivalent method of vindicating the

State's rights." /d. at 569-570. If Texas’ only remedy under

_ the Pecos River Compact was to obtain a judicial determination

that New Mexico had violated the terms of the compact by

failing to deliver the quantity of water it had agreed to, and

New Mexico was only instructed to deliver that amount in the

future, New Mexico's obligations would be illusory. The

Court has previously concluded however, that "It is difficult to

perceive that Texas would trade away its right to seck an

equitable apportionment of the river in return for a promise that

New Mexico could, for all practical purpose, avoid at will."

Id. at 569.

18

CONCLUSION

The Special Master has recommended a remedy which is

consistent with the Eleventh Amendment to the United States

Constitution. Although application of a "weighing of interests

test" may not be proper in this proceeding, New Mexico has

failed to sustain. its burden to show that imposition of the

repayment would result in hardship to the New Mexico Amici

and other New Mexico citizens such that would render the

granting of the remedy recommended by the Special Master

inappropriate. Potential economic hardship a factor which the

Court Considers in an equitable apportionment, is not a defense

in a proceeding involving a state's failure to deliver water

pursuant to an interstate compact.

The Pecos River Compact is a contract between the State of

Texas and the State of New Mexico and the Court has

jurisdiction to impose the remedy recommended by the Special

Master for a breach of that contract. Amicus Curiae, Red Bluff

Water Power Control District requests the Court to approve the

repayment remedy recommended by the Special Master.

Counsel of Record

For Red Bluff Water Power Control

District

Frank R. Booth

Timothy L. Brown

Booth & Newsom, P.C.

300 San Jacinto Building

Austin, Texas 7870!

(512) 478-9506

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