Amicus Curiae Brief — Oklahoma v. Texas (No. 109-Original)

No. 109, Original

— — me

In the Supreme Court of the Cinuited States

OcTOBER TERM, 1993

STATES OF OKLAHOMA AND TEXAS, PLAINTIFFS

STATE OF NEW MEXICO, DEFENDANT

ON JOINT MOTION OF THE PARTIE.

FOR ENTRY OF STIPULATED JUDGMENT AND DECREE

BRIEF FOR THE UNTTED STATES

AS AMICUS CURIAE

DREW S. Days, III

Nolicito? (5 hig ral

Los J. SCHIFFER

Acting Assistant Attorney Gene ral

EDWIN S. KNEEDLER

De puty Solicitor Gene ral

MYLES E. FLINT

Deputy Assistant Attorney General

JEFFREY P. MINEFAI

Assistant to the Solicitor General

PATRICIA L. WEISS

Atlorneu

Le partn ent of Justices

Washington, 12€C) 20520

(A?) 514 2217

TABLE CF CONTENTS

Page

TESTS ERSTE ee Rr oe ee SADT Sed ee 1

SSE EN RIS SIRI VP TES DIET A MER eOE 6

ae 14

TABLE OF AUTHORITIES

Cases:

Arizona v. California, 373 U.S. 546 (1963) .......0.00..... 5

Howat v. Kansas, 258 U.S. 181 (1922) ...................... il

New Hampshire v. Maine, 426 U.S. 363 (1976) ............. 6

Oklahoma vy. New Merico, 111 8. Ct. 2281 (1991) .......... 2,5, 8,9

System Federation No. 91, Railway Employees’ Dep't v.

ts Da sesemennnes 6

Texas v. New Merico, 462 U.S. 554 (1983) .................... 11, 12

Texas v. New Merico, 482 U.S. 124 (1987) .................... 11

United States v. Burke, 112 S. Ct. 1867 (1992) ......0...... 7

Vermont v. New York, 417 U.S. 270 (1974) ...00.00000000.... 6

Constitution and statutes:

U.S. Const. :

ae UR a 11

i se 6

Act of Apr. 6, 1949 (Upper Colorado River Basin

Cempact), ch. 48, 63 Stat. 31:

I IIIT oscnessiutsninpndienuniondponsecsnesosssooss 12

Act of May 31, 1949 tArkansas River Compact), ch. 155,

§ 1, 63 Stat. 145:

By III “TED nc nnsiicunonnsessnophescesesessccsoces 12

BG, Wt ee ts BET covnccccccscccesiscdecccensvonccosses 12

Act of June 8, 1949 (Pecos River Compact), ch. 184, 68

Stat. 159:

I I II isc ccdniainniniiidiinienaniandenionton 12

Act of May 17, 1952 (Canadian River Compact), ch. 306,

OI TE fasinich inate ticcendictiuedonniainniepsingunnbeecisaseeensces 1,2

RS OS Le ee 3,4

RIT TIF eencepinedinntienecitnapnaitenscnsiisibpiansacinensicns 3, 12

(1)

Statutes Continued: Page

Ast. TVG, GB GOaR, FB ccsccsccccccnscoscctocscsecsensemne ®

PY i, 5 5 er 4,5, 7,8

Ast. Wee GB BURR. FOO cndcovecesstsccsescessssecdeeeeamenene 12

Aigt., Wie, Ge BR: Fe ccccdccococecsssccssostsacentsensesammananaen 12

Paigt., Ted, GB GRR, FE cccnccvsccscssccsocccscessocssassneuanaies 12

Ast. BGG, GE Beeb. Fe ccoccsscestccisaccnecmvsmedmueaee 12

Miscellaneous:

S. Rep. No. 1192, 82d Cong., 2d Sess. (1952) ..........::.ceeee 13

In the Supreme Court of the Cuted States

OcTOBER TERM, 1993

No. 109, Original

STATES OF OKLAHOMA AND TEXAS, PLAINTIFFS

».

STATE OF NEW MEXICO, DEFENDANT

ON JOINT MOTION OF THE PARTIES

FOR ENTRY OF STIPULATED JUDGMENT AND DECREE

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

This brief is submitted in response to the Court’s

order inviting the Solicitor General to express the

views of the United States.

STATEMENT

The States of Oklahoma and Texas brought this

original action against the State of New Mexico to

resolve a dispute under the Canadian River Compact,

Act of May 17, 1952, ch. 306, § 1, 66 Stat. 74. This

Court granted Oklahoma and iexas leave to file their

complaint, Oklahoma v. New Mexico, 484 U.S, 808

(1987), and referred the matter to a Special Master,

484 U.S. 1028 (1988). On October 15, 1990, the Special

Master submitted his report. See 498 U.S. 956 (1990).

The Court considered the exceptions filed by the

(1)

2

three States, sustained them in part and overruled

them in part, and remanded the case for further

proceedings. 111 5. Ct. 2281 (4991). On May 28, 1993,

the Special Master submitted a report on the re-

manded issues, and shortly thereafter, Oklahoma,

Texas, and New Mexico filed a joint motion for entry

of a stipulated judgment and decree. On June 28, 1993,

this Court invited the Solicitor General to file « ~ief

expressing the views of the United States. 113.5. Ct.

3031 (1993).

1. The Canadian River rises in New Mexico near

the Colorado-New Mexico border and flows south and

then east across New Mexico, through the Texas

panhandle, and across Oklahoma until it eventually

joins the Arkansas River. The United States and the

States have constructed three significant water stor-

age projects on the River: (a) Conchas Dam in New

Mexico, about 30 miles northwest of Tucumeari,

which provides water to the Bureau of Reclamation’s

Tucumcari Project; (b) Ute Dam and Reservoir in

New Mexico, about 45 miles downstream from

Conchas Dam; and (c) Sanford Dam in Texas, about

165 river miles downstream from Ute Reservoir. See

Oklahoma v. New Mevrico, 111 S. Ct. at 2283-2286;

Special Master’s Report la-2a (Oct. 15, 1990)

(reproducing maps).

The Canadian River Compact, ratified by Okla-

homa, Texas, and New Mexico in 1951 and approved by

Congress in 1952, 66 Stat. 74, allocates the Canadian

River’s flow among the three States. The Compact

apportions the Canadian River water primarily by

imposing restrictions on the impoundment of water in

New Mexico and Texas. The Compact also creates an

interstate agency, the Canadian River Commission,

3

to administer the Compact. The Commission consists

of a non-voting presiding officer designated by the

President of the United States and three voting

members designated by the respective States. See

Special Master’s Report 3a-9a (Oct. 15, 1990) (repro-

ducing Compact).

Article 1V of the Compact limits New Mexico’s use

of the Canadian River’s waters as follows:

(a) New Mexico shall have free and unrestricted

use of all waters originating in the drainage basin

of Canadian River above Conchas Dam.

(b) New Mexico shall have free and unrestricted

use of all waters originating in the drainage basin

of Canadian River in New Mexico below Conchas

Dam, provided that the amount of conservation

storage in New Mexico available for impounding

these waters which originate in the drainage

basin of Canadian River below Conchas Dam shall

be limited to an aggregate of 200,000 acre-feet.

66 Stat. 75. Article Il(d) of the Compact defines

“conservation storage” as

that portion of the capacity of reservoirs available

for the storage of water for subsequent release for

domestic, municipal, irrigation and industrial

uses, or any of them, and it excludes any portion of

the capacity of reservoirs allocated solely to flood

control, power production and sediment control, or

any of them.

66 Stat. 75.

2. Beginning in 1982, New Mexico took steps to

enlarge Ute Reservoir from its original capacity of

109,600 acre-feet to a capacity of 272,800 acre-feet. In

4

addition, New Mexico designated 49,900 acre-feet of

storage immediately above the reservoir outlet works

as a “desilting pool,” and it treated the desilting pool

as exempt from the Compact’s limit on conservation

storage on the theory that the pool was allocated to

“sediment control.” 66 Stat. 75. Texas and Oklahoma

objected to New Mexico's addition of physical reser-

voir capacity below Conchas Dam in excess of 200,000

acre-feet and to New Mexico's claimed exemption for

the “desilting pool.” Those objections provided the

primary impetus for this original action. See Special

Master’s Report 16-22 (Oct. 15, 1990).

The Special Master examined the evidence, consid-

ered the legal arguments of the States, and prepared a

report containing a recommended disposition of the

matter. He concluded that Article [V(b) of the Cana-

dian River Compact imposes a limit on the amount of

water New Mexico may store, rather than a limit on

the physical reservoir capacity. He also determined

that waters originating in the Canadian River Basin

above Conchas Dam, but reaching the mainstream of

the river below the Conchas Dam as a result of dam

spills and releases or Tucumcari Project seepage and

return flows, are subject to Article 1V(b)’s 200,000

acre-feet storage limitation. The Special Master con-

cluded that the controversy over the “desilting pool”

should be referred to the Canadian River Commission

for possible resolution. He also concluded that if the

Court agreed with his proposed disposition of the

foregoing issues, then New Mexico should be found in

violation of the Compact insofar as it did not count

Conchas Dam spills and releases and Tucumeari

Project seepage and return flows as part of the

200,000 acre-feet limitation, and the case should be

5

returned to the Special Master for a determination of

appropriate relief. Special Master’s Report 24-25

(Oct. 15, 1990); see Oklahoma v. New Mexico, 1118.

Ct. at 2286.

This Court considered the States’ various excep-

tions to the Special Master’s recommended disposi-

tion and largely rejected them. Oklahoma v. New

Merico, 111 8. Ct. at 2286-2293. The Court agreed

with the Special Master’s conclusion that Article

V(b) limits water storage rather than reservoir ca-

pacity, 111 S. Ct. at 2286-2287, and that the 200,000

acre-feet storage limitation applies to Conchas Dam

spills and releases and Tucumeari Project seepage

and return flows, id. at 2287-2292. The Court dis-

agreed, however, with the Special Master’s recom-

mendation that the “desilting pool” issue should be

referred to the Canadian River Commission. The

Court explained that it has “‘a serious responsibility

to adjudicate cases where there are actual, existing

controversies’ between the States over the waters in

interstate streams.” /d. at 2292-2293 (quoting Ari-

zona Vv. California, 373 U.S. 546, 564 (1963)). The

Court saw “no legal basis for the Master refusing to

decide the question,” and it accordingly remanded the

issue to the Master “for such further proceedings as

may be necessary and a recommendation on the

merits.” 111 S. Ct. at 2295.

3. On remand, the Special Master took additional

evidence, allowed further briefing, and prepared a

draft report. The parties then negotiated a settle-

ment of the dispute and prepared a stipulated judg-

ment and decree, which the Special Master approved.

On May 28, 1993, the Special Master submitted his

Report on Remand, which recommends that this

6

Court grant the parties’ simultaneously filed joint

motion for entry of the stipulated judgment and

decree.

DISCUSSION

The States of Oklahoma, Texas, and New Mexico

request that this Court enter a stipulated judgment

and decree concluding this original action. The

United States submits that the States have reached

an appropriate resolution of the matter insofar as the

proposed judgment and decree clarify the legal obliga-

tions of the parties with respect to the issues in

dispute in this litigation. However, the provisions of

the proposed decree contained in paragraph 10, which

additionally address the authority of the Canadian

River Commission, should be eliminated.

1. When this Court exercises its original jurisdic-

tion, it possesses powers analogous to those of a trial

court, including the power to resolve disputed mat

ters through the entry of a judgment or decree

proposed by the parties. See New Hampshire vy.

Maine, 426 U.S. 363, 368 (1976). That power derives

from a court’s authority to adjudicate legal issues,

and not merely from the parties’ consent. See System

Federation No. 91, Railway Employees’ Dep't vy.

Wright, 564 U.S. 642, 651 (1961). Thus, the Court

should reject a stipulated judgment or consent decree

unless the requested order is “judicial” in the sense

that it resolves the Article II] case or controversy

before the Court. Compare New Hampshire vy.

Maine, 426 U.S. at 368-369 (adopting a consent decree

resolving a boundary dispute “consistent with our

Art. III function and duty”) with Vermont v. New

York, 417 U.S. 270, 277 (1974) (per curiam) (rejecting

a consent decree requiring the Court to undertake an

_-

7

“arbitral” function). Furthermore, the Court should

reject a stipulated judgment or consent decree that

rests on a mistake of law or otherwise provides an

inappropriate resolution of the case. The Court is not

obligated to enter a judgment on an incorrect or

improper basis “simply because the parties agree

upen it.” United States v. Burke, 112 S. Ct. 1867, 1877

(1992) (Sealia, J., concurring in the judgment).

2. The proposed stipulated judgment poses no

difficulties under the foregoing principles. In accord-

ance with this Court’s 1991 decision and the proceed-

ings on remand, the judgment declares that New

Mexico has been in violation of Article 1V(b) of the

Canadian River Compact since 1987. Proposed Stipu-

lated Judgment 491. It also establishes reservoir

storage levels and a schedule of water releases during

the next ten years to bring New Mexico into compli-

ance with the Compact and to compensate Oklahoma

and Texas for the violation. Id. J] 2-3. Finally, the

judgment provides that New Mexice shall pay attor-

neys’ fees to Oklahoma and Texas in a specified

amount, that Oklahoma and Texas shall release New

Mexico from all other claims arising out of New

Mexico's violation, that the provisions of the proposed

judgment shall take precedence over the proposed

decree, and that the costs in this «se shall be equally

divided among the parties. /d. 44 4-7. As the Special

Master explains, the proposed judgment fairly and

practicably implements this Court’s decision. See

Special Master’s Report on Remand 7-% (May 28,

1993). The United States has no objection to the

entry of the proposed judgment.

4. The proposed decree is more problematic. The

12-paragraph decree provides an appropriate resolu-

8

tion of the issues in this litigation insofar as it

clarifies how the Compact governs particular water

storage activities. But the decree also includes novel

provisions, contained in paragraph 10, that allow the

Canadian River Commission to waive or modify “the

obligations imposed on New Mexico by this Decree”

and provide that the Commission may take “any

necessary and proper actions, not in violation of any

provisions of the Compact, to implement the Compact

purposes.”

a. Paragraphs 1 and 2 are clearly appropriate

because they effectuate this Court’s 1991 decision.

Paragraph 1 implements the Court’s interpretation of

Article 1V(a) of the Compact by allowing New Mexico

free and unrestricted use of the Canadian River for

uses above Conchas Dam, which include diversions

for use on the Tucumcari Project and the Bell Ranch.

See Oklahoma v. New Mexico, 111 S. Ct. at 2287-2288,

2295 n.12. Paragraph 2 implements the Court’s

interpretation of Article IV(b) by limiting New

Mexico to storage of not more than 200,000 acre-feet

below Conchas Dam, subject to recognized ex-

ceptions. See 111 S. Ct. at 2291-2292; see generally

Special Master’s Report on Remand 8-9 (May 28,

1993).

Paragraphs 3 through 6 are also appropriate,

because they resolve the “desilting pool” issue

through terms that are consistent with the Compact.

Paragraph 3 clarifies that the Canadian River Com-

mission may classify water in a multiple purpose

reservoir that is stored “primarily” for flood control,

power generation, or sediment control as exempt from

the conservation storage limitation. Paragraph 4

provides that water stored below a reservoir’s outlet

9

works is generally exempt from conservation storage,

while paragraph 5 requires a State to seek Commis-

sion approval before redesignating storage volumes

for flood control, power production, or sediment

control. Paragraph 6 specifies that water stored in

Ute Reservoir above elevation 3725 (7.e., the so-called

“desilting pool,” see Oklahoma v. New Mevico, 111 8S.

Ct. at 2292 n.10) shall be treated as conservation stor-

age, provided that New Mexico may seek redesigna-

tion in the future based on changed circumstances.

See Special Master’s Report on Remand 9-11.

Paragraphs 7 through 9 are appropriate because

they resolve other disputed operational matters

through terms that are consistent with the Compact.

Paragraph 7 exempts certain small reservoirs from

classification as conservation storage, while para-

graph 8 directs New Mexico to release water from

storage in accordance with the Compact, the stip-

ulated judgment, and safe operational practices.

Paragraph 9 directs New Mexico to conduct sediment

surveys at Ute Reservoir every ten years to estab-

lish the reservoir’s capacity for conservation storage.

See Special Master’s Report on Remand 11-12.

b. Paragraphs 10 through 12 contain general provi-

sions concerning the relationship between the decree

and the Compact. Paragraphs 11 and 12 are not con-

troversial. Paragraph 11 expresses the parties’ in-

tent that “[nJjothing in this Decree is intended to

affect a state’s rights or obligations under the

Compact, except as specifically addressed herein.”

Although that provision on its face might be read to

suggest that the decree has altered the States’ rights

or obligations under the Compact, the Special Mast-

er’s Report on Remand explains (at 14) that

10

paragraph 11 simply makes clear that the decree, in ~

certain respects, “providjes| * * * how such rights or

obligations may be exercised or enforced.” As so

understood, paragraph 11 is unobjectionable as a

statement of the resolution of disputed issues arising

under the Compact. Paragraph 12 additionally pro-

vides that the States may invoke this Court’s

jurisdiction for purposes of enforcing or modifying

the decree, and includes a salutary agreement among

the States that they shall attempt to resolve disputes

through negotiations before invoking the Court’s

retained jurisdiction.

Paragraph 10, however, is novel. It provides:

Any of the obligations imposed on New Mexico

by this Decree may be waived or modified by the

Commission; provided that the parties hereto

shall file notice of any such action with the Court.

The Commission is also authorized to take any

necessary and proper actions, not in violation of

any provisions of the Compact, to implement the

Compact purposes.

Proposed Decree § 10. We suggest that this provision

is inappropriate and should be deleted.

The first sentence of paragraph 10 is inappropriate

because it would vest the Canadian River Commission

with the power to modify or waive obligations imposed

by a decree of this Court. We are aware of no other

instance in which the Court has delegated that

judicial power to another entity. Rather, when this

Court enters a decree, it reserves to itself the power

to determine whether changed conditions or other

circumstances warrant a modification or waiver of

the obligations imposed therein. See, e.g., Texas vy.

New Mevrico, 482 U.S. 124, 133 (1987). No reason

11

exists to depart from that practice in this case. The

Special Master recommended inclusion of this sen-

tence on the theory that an interstate compact is also

a contract and “there would appear to be no reason

why obligations under the Compact, as implemented

by the decree, could not be waived in accordance with

general contract law.” Special Master’s Report on

Remand 12. The decree, however, operates as a

judicial injunction. If the parties seek to have their

rights determined by judicial decree, then they must

also abide by the rules governing injunctions, in-

cluding the longstanding rule that the court issuing

an injunction is entitled to determine in the first

instance whether to waive or modify the specified

obligations. See, e.g., Howat v. Kansas, 258 U.S. 181,

189-190 (1922).'

The second sentence of paragraph 10 is also

inappropriate, because it is either surplusage or it

gives the Commission powers beyond those granted

by Congress in approving the Canadian River Com-

pact. On the one hand, if that sentence is intended

merely to acknowledge the Commission’s existing

powers under the Compact, then the sentence is

unnecessary. On the other hand, if the sentence is

intended to expand the Commission’s powers beyond

what the Compact provides, then the source of that

authority is open to question. In either instance, the

' Moreover, because the Compact has been approved by

Congress, and in light of the constitutional requirement of the

consent of Congress for any “Agreement or Compact” between

one State and another (Art. I, § 10, Cl. 3), the States presum-

ably could not alter the terms of the Compact itself without

congressional approval. See Texas v. New Merico, 462 U.S.

554, 564 (1983).

12

second sentence of paragraph 10 serves no proper and

useful purpose. The Special Master recommended

inclusion of this sentence on the theory that the

Commission “may exercise the same kinds of ancil-

lary powers as a federal administrative agency” and

that “[t]his clarification should give the Commission

(and perhaps other compact commissions) an incen-

tive to deal more creatively with important problems

that might otherwise not be addressed at all.” Special

Master’s Report on Remand 13-14. A decree, how-

ever, should be formulated to resolve the case or

controversy before the court, and not to create

incentives for unrelated governmental action.’

* Unlike some other compacts, the Canadian River Compact

does not expressly provide for the Commission to make find-

ings and determinations on a broad range of matters that may

arise in the administration of the Compact and water flows in

the River. Aside from the record-keeping and reporting re-

sponsibilities specified in Article [X(c) and (d), 66 Stat. 77, the

only other power expressly conferred on the Commission is to

permit New Mexico and Texas, on a year-to-year basis, to

impound more water than the amounts set forth in Articles IV

and V. See Art. VII, 66 Stat. 76. Compare, e.g., Pecos River

Compact, Art. V, 63 Stat. 162-163 (see Teras v. New Merico,

462 U.S. at 560, 565-567); Upper Colorado River Basin Com-

pact, Art. VIIi, 68 Stat. 35-37; Arkansas River Compact, Art.

VIII(A) and (B), 68 Stat. 149-150.

We note that several paragraphs of the decree nevertheless

contemplate a role for the Commission in matters arising under

the Compact and decree. Most have to do with applying in

various circumstances the Compact’s basic distinction between

storage chargeable to conservation and exempt storage. See 44

3-6; see also J 7 (providing, consistent with Commission's past

practice of waiving reporting requirements, that New Mexico

dams with capacity of less than 100 acre-feet are not chargeable

to conservation storage “unless otherwise determined by the

13

We have explained our reservations concerning

paragraph 10 to counsel for New Mexico, Oklahoma,

and Texas, and they have authorized us to state that

they do not object to deletion of that paragraph.

Commission”), 4 8 (outlet works at Ute Reservoir not to be

changed without Commission approval). Although the

Compact does not expressly provide for the Commission to

perform those functions, we are unaware of any indication that

either the States that entered into the Compact or the Congress

that consented to it intended to foreclose the Commission from

doing so, at least where, as here, the Commission will act pur-

suant to an order of this Court entered on the motion of the

States themselves. In fact, the Senate Report on the bill by

which Congress gave its consent to the Compact states that the

Commission would be “empowered to administer the compact,”

in addition to collecting water-flow data and making reports.

S. Rep. No. 1192, 82d Cong., 2d Sess. 2 (1952). Moreover, the

Commission may act only upon the unanimous vote of the

Commissioners representing the three States. For these rea-

sons, and because the Commission’s role under the cited

paragraphs of the decree is essentially to make subsidiary

determinations in implementing the now-settled terms of the

Compact and decree, we do not find the Commission’s role

under those paragraphs to be objectionable.

14

CONCLUSION

The Court should enter the proposed stipulated

judgment and enter all of the proposed decree except

paragraph 10.

Respectfully submitted.

DrREw S. DAys, III

Solicitor General

LOIS J. SCHIFFER

Acting Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

MYLES EF. FLINT -

Deputy Assistant Attorney General

JEFFREY P. MINEAR

Assistant to the Solicitor General

PATRICIA L. WEISS

Attorney

NOVEMBER 1993