# Amicus Curiae Brief — Texas v. New Mexico

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0288%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 482 U.S. 124

## Text

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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

19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0288%3A09. Public record. Not legal advice.