Opposition Brief — Texas v. New Mexico (No. 141)

No. 141, Original Cou

— Inu The JUN 10 201

psrefpupreme Court of the nited| gsres =<

STATE OF TEXAS,

Vv.

Plaintiff,

STATE OF NEW MEXICO and

STATE OF COLORADO,

Defendants.

ON MOTION FOR LEAVE TO INTERVENE

STATE OF NEW MEXICO’S RESPONSE

IN OPPOSITION TO THE MOTION

OF EL PASO COUNTY WATER IMPROVEMENT

DISTRICT NO. 1 FOR LEAVE TO INTERVENE

HECTOR H. BALDERAS

Attorney General

STEPHEN R. FARRIS

SARAH A. BOND*

Assistant Attorneys General

Amy I. HAAs

Special Assistant

Attorney General

General Counsel,

New Mexico Interstate

Stream Commission

STATE OF NEW MEXICO

P.O. Drawer 1508

Santa Fe, New Mexico 87501

505-827-6010

sbond@nmag.gov

*Counsel of Record

COCELE LEGAL BRIEFS (800) 225-6964

LisA M. THOMPSON

MICHAEL A. Kopp

Special Assistant

Attorneys General

TrouT, RALEY, MONTANO,

WITWER & FREEMAN, P.C.

1120 Lincoln Street,

Suite 1600

Denver, Colorado 80203

303-861-1963

JOHN B. DRAPER

Special Assistant

Attorney General

DRAPER & DRAPER LLC

505-570-4590

JEFFREY J. WECHSLER

Special Assistant

Attorney General

MONTGOMERY & ANDREWS, PA.

325 Paseo de Peralta

Santa Fe, New Mexico 87501

505-982-3873

Page

STATEMENT OF THE CASE....................ccccceeeses 1

SUMMARY OF ARGUMENT ...............:ccccceececeeeees 1

ian kbtadiniinicinnesiniinicintiiitisininnininaieentiemtnice 3

I. EPCWID FAILS TO MEET THE HIGH

Il.

ITI.

i

TABLE OF CONTENTS

STANDARD FOR INTERVENTION IN IN-

TERSTATE COMPACT DISPUTES ............

EI-CWID’S INTEREST IS NEITHER COM-

PELLING NOR UNIQUE...................0::0000::

A. As a Political Subdivision of Texas,

EPCWID Cannot Demonstrate a Com-

pelling Interest in Its Own Right .........

. EPCWID Is Not a Bi-State Entity or an

Entity with Unique Interests Whose

Participation Is Necessary to the Reso-

lution of This Action. ..................:06:c00-000

1. EPCWID Is Not a Bi-State Entity....

2. EPCWID’s Allocation of Project Water

Does Not Give It a Unique Interest....

. EPCWID Has No Role in Compact Ad-

ministration Nor Any Right Under the

Compact Distinct from Other Texas

AT I aeRO Ain a

. EPCWID’s Reliance on Intervention by

Nonstate Entities in Other Original

Actions Is Misplaced................:...:sse0000.

EPCWID’S INTEREST IS REPRESENTED

IIT ois nsstviineieebdnitncinsdacidsieantinatntenniiteieditclg

12

15

16

$3

TABLE OF AUTHORITIES

Page

CASES

Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex

rel., Barez, 458 U.S. 592 (1982)................:0000e 19, 20

Arizona v. California, 460 U.S. 605 (1983)................ 16

Baker v. General Motors, 522 U.S. 222 (1998)........... 11

El Paso County Water Improvement Dist. No. 1

v. City of El Paso, 133 F. Supp. 894 (W.D.

BE IE Takis tninictitnt igoadeineanidediaiaddenisdananditumebtaiaann 11

Hinderlider v. La Plata River & Cherry Creek

Ditets Co., BO4 US. GB CABBS). .2cccccrcescccssecccsssece 16, 19

Kansas v. Colorado, 206 U.S. 46 (1907)................::0008 3

Kansas v. Colorado, 533 U.S. 1 (2001)..................000e 20

Kentucky v. Indiana, 281 U.S. 163 (1930)............... 4,8

Lindsey v. McClure, 136 F.2d 65 (10th Cir.

eit acini ataindicaeaaie eats letindipditaliaiameniaaaiintode 11

M & G Polymers USA, LLC v. Tackett, 135

i esceeaneaiidl 20

Maryland v. Louisiana, 451 U.S. 725 (1981)....... 18, 19

Nebraska v. Wyoming, 325 U.S. 589 (1945)............... 14

Nebraska v. Wyoming, 515 U.S. 1 (1995)........... 3, 4,19

New Jersey v. New York, 345 U.S. 369 (1953).....passim

Oklahoma v. Texas, 258 U.S. 574 (1922) ......... es 17

Petty v. Tennessee-Missouri Bridge Comm'n,

a i aac sactcasiscimgetnhelimannbaionee 20

Poole v. Fleeger, 36 U.S. (11 Pet.) 185 (1837)............. 19

ili

TABLE OF AUTHORITIES — Continued

Page

South Carolina v. North Carolina, 558 U.S. 256

IIT ichidaldiabiahunsibiciaiesetnliatsisuisinsiae elaninladinnanibiainiaastonas passim

Tarrant Reg Water Dist. v. Herrmann, 133

Be ee elicit iciinin tacnsieccicencdenicadinninntibincatnenial 3,15

Texas v. Louisiana, 416 U.S. 965 (1974)................0.. 17

Texas v. Louisiana, 426 U.S. 465 (1976)....................18

Texas v. New Mexico, 482 U.S. 124 (1987)................. 20

FEDERAL STATUTES

Se I UT eciidancgasinledeiaisniiciciceivecgiecenndatens 11, 13,17

U.S. CONSTITUTION

ee Te Oe OO os casnevveioniiciuescnbncnwnnaonns 8

Ss PN II TI Gacdccicicecensuiinenvnomnnictetabantavaamnnendeansie 20

OTHER AUTHORITIES

Memorandum Opinion of the Special Master

on the Motion of Anadarko Petroleum Corpo-

ration for Leave to Intervene, Montana v.

Wyoming, No. 137, Original (Dec. 18, 2009) ............ 5

Report of the Special Master on the Motion

to Intervene by Franklin H. James, The

Shakan Kwaan Thling-Git Nation, Joseph K.

Samuel, and the Taanta Kwaan Thling-Git

Nation, Alaska v. United States, No. 128,

IE icici cctnsdanianiecsccsteinnidbecnmtntenions 17

iV

TABLE OF AUTHORITIES ~— Continued

Page

MISCELLANEOUS

Bureau of Reclamation, Calendar Year 2012

Report to the Rio Grande Compact Commis-

Se IE eiiessinicadsuntisiinsiatateintasaniniaindpibiencsades 12

1

STATEMENT OF THE CASE

In this original action, Texas seeks enforcement

of the Rio Grande Compact (Compact) against New

Mexico. The United States has intervened, and New

Mexico filed a motion to dismiss both Complaints.

The Court appointed A. Gregory Grimsal Special

Master on November 3, 2014, and referred the case to

him. Elephant Butte Irrigation District (EBID), a

political subdivision of New Mexico, moved to inter-

vene in December 2014. See Motion of Elephant

Butte Irrigation District for Leave to Intervene, and

Memorandum of Points and Authorities. New Mexico,

Texas, and the United States have all opposed EBID’s

motion. New Mexico’s motion to dismiss and EBID’s

motion to intervene are currently pending before the

Special Master. E] Paso County Water Improvement

District No. 1 (EPCWID), a Texas political subdivi-

sion that receives water from the Rio Grande Project,

now also requests leave to intervene in this case. Mo-

tion of E] Paso County Water Improvement District

No. 1 for Leave to Intervene as a Plaintiff, Complaint

in Intervention, and Memorandum in Support of

Motion to Intervene as a Plaintiff (EPCWID Mem.).

>

SUMMARY OF ARGUMENT

EPCWID is now the second political subdivision

of a State party to move to intervene in this case.

EPCWID is a political subdivision wholly within

Texas, serving lands in Texas with contracted water

2

from the Rio Grande Project (Project), a federal

reclamation project. Despite being a wholly intrastate

entity of Texas, and having no special interest or

role in the Compact, it alleges its interests in the

Project are sufficiently unique to justify its inter-

vention in this interstate compact action. EPCWID

further claims it is not adequately represented by

either its State of incorporation — despite the fact that

Texas is a party to the Compact and to this suit — or

by the United States, which is also a party to this

suit, and with which EPCWID contracts for water

from the Project. EPCWID is incorrect. It does not

meet the standard for intervention herein.

Compact enforcement actions arise out of a

fundamental aspect of State sovereignty: a State’s

jurisdiction over its water. As such, informed by the

doctrine of parens patriae and respect for State

sovereignty, the Court generally does not allow a citi-

zen of a State already a party to the action to inter-

vene. EPCWID has failed to articulate any reason

justifying its intervention here.

Contrary to its claim, EPCWID is not a bi-state

entity, nor does it have any role in Compact admin-

istration or enforcement. Colorado, New Mexico and

Texas are the signatories to the Compact and fully

represent their water users with respect to the

Compact. EPCWID’s position with respect to Texas’

Complaint is that of one water user among many

others in Texas, all of which draw from Texas’s

share of water under the Compact. The Court should

deny EPCWID’s motion because EPCWID’s interest is

3

neither compelling nor unique and its interests are

already properly represented by Texas.

Sd

ARGUMENT

I. EPCWID FAILS TO MEET THE HIGH STAN-

DARD FOR INTERVENTION IN INTER-

STATE COMPACT DISPUTES

“Respect for state sovereignty ... calls for a high

threshold to intervention” by nonstate entities such

as EPCWID to guard against the use of the Court’s

original jurisdiction “as a forum in which ‘a state

might be judicially impeached on matters of policy by

its own subjects.’” South Carolina v. North Carolina,

558 U.S. 256, 267 (2010) (quoting New Jersey v. New

York, 345 U.S. 369, 373 (1953)). A controversy be-

tween States implicates matters of State sovereignty

that rise “above a mere question of local private

right.” Kansas v. Colorado, 206 U.S. 46, 99 (1907).

The States alone possess the “core state prerogative

to control water within their own boundaries,” and

the Court’s adjudication of their rights under the

Compact is informed by the presumption that the

States have retained their sovereignty. Tarrant Reg’l

Water Dist. v. Herrmann, 133 S. Ct. 2120, 2132-2133

(2013). Thus, a State in its sovereign capacity “rep-

resents the interests of its citizens in an original

action, the disposition of which binds the citizens.”

South Carolina v. North Carolina, 558 U.S. at 267;

see Nebraska v. Wyoming, 515 U.S. 1, 21 (1995)

(“Ordinarily, in a suit by one State against another

4

subject to the original jurisdiction of this Court, each

State ‘must be deemed to represent all its citizens.’ A

State is presumed to speak in the best interests of

those citizens... .”) (quoting Kentucky v. Indiana, 281

U.S. 163, 173 (1930)). Not surprisingly, the Court has

never allowed a political subdivision of a State to

intervene over the objection of that State in a com-

pact enforcement case.

Therefore “the standard for intervention in orig-

inal actions by nonstate entities is high — and appro-

priately so.” South Carolina v. North Carolina, 558

U.S. at 267. States, in negotiating interstate com-

pacts and in resolving disputes that arise from them,

must consider their State needs in their entirety.

Individual intrastate entities may disagree with their

States on certain positions, but they are necessarily

bound by their States whose interests, not those of

intrastate entities, are in issue in a compact case.

Thus, an intervenor whose State is already a party

bears “the burden of showing some compelling inter-

est in his own right, apart from his interest in a class

with all other citizens and creatures of the state,

which interest is not properly represented by the

state.” Id. at 266 (quoting New Jersey v. New York,

345 U.S. at 373). This standard “serves the twin pur-

poses of ensuring that due respect is given to ‘sover-

eign dignity’ and providing ‘a working rule for good

judicial administration.’” Jd. (quoting New Jersey v.

New York, 345 U.S. at 373). Unless a nonstate entity

can meet this high standard, its motion to intervene

generally “will be denied.” Nebraska v. Wyoming, 515

5

U.S. at 21-22; see South Carolina v. North Carolina,

558 U.S. at 266; Memorandum Opinion of the Special

Master on the Motion of Anadarko Petroleum Corpo-

ration for Leave to Intervene at 3-6, Montana v.

Wyoming, No. 137, Original (Dec. 18, 2009).

Moreover, a high standard for intervention is nec-

essary to ensure that original actions, which already

“tax the limited resources” of the Court, “do not as-

sume the ‘dimensions of ordinary class actions.”

South Carolina v. North Carolina, 558 U.S. at 267

(quoting New Jersey v. New York, 345 U.S. at 373). If

a nonstate entity could intervene merely on the basis

of a difference of opinion with its sovereign, “there

would be no practical limitation on the number of

citizens, as such, who would be entitled to be made

parties.” New Jersey v. New York, 345 U.S. at 373.

As explained below, EPCWID cannot meet either

of the prerequisites for intervention. First, it cannot

show a compelling and unique interest that sets it

apart from the class of all other citizens and crea-

tures of Texas. Second, it cannot show that its inter-

est in this action is not already properly represented.

In its own words, any specific interests it may have

derive from a reclamation project, not the Compact

which is the center of this case.

Il. EPCWID’S INTEREST IS NEITHER COM-

PELLING NOR UNIQUE

EPCWID has failed to show that it has a “‘com-

pelling interest’” in its own right, “‘apart from [its]

6

interest in a class with all other citizens and crea-

tures of the state.’” See South Carolina v. North

Carolina, 558 U.S. at 266 (quoting New Jersey v. New

York, 345 U.S. at 373). EPCWID is a political subdi-

vision of Texas. As such, the only interests that it

represents are the interests of irrigators and other

water users within its territorial boundaries, which

lie wholly within Texas. It is not a bi-state entity, and

its claim to have “bi-state interests,” e.g., EPCWID

Mem. 14, is unfounded. Though the Project serves

lands in two States, EPCWID is just the Texas dis-

trict with no material rights or obligations vis-a-vis

the New Mexico lands. EPCWID has presented no

other persuasive reason to conclude that it has a

compelling interest distinct from the interests of the

other citizens and political subdivisions of Texas. Nor

is its participation as an intervenor necessary to the

resolution of the States’ dispute in this action.

A. As a Political Subdivision of Texas,

EPCWID Cannot Demonstrate a Com-

pelling Interest in Its Own Right

The Court has consistently held that political

subdivisions such as EPCWID, whose States are al-

ready parties to original actions, do not meet the high

standard for intervention, even where the importance

of their interests is substantial. E.g., New Jersey v.

New York, 345 U.S. at 373-374 & n.* (Philadelphia

failed to show a compelling interest, despite rep-

resenting half of all Pennsylvania citizens in the

Delaware River watershed). Political subdivisions

7

typically are not allowed to intervene because if the

Court undertook to evaluate “all the separate inter-

ests within [a State],” it “could, in effect, be drawn

into an intramural dispute over the distribution of

water” within a State. Id. at 373; see also South

Carolina v. North Carolina, 558 U.S. at 274-275

(Charlotte failed to show a compelling interest be-

cause it occupied “a class of affected North Carolina

users of water,” and “the magnitude of Charlotte’s

authorized transfer d[id] not distinguish it in kind

from other members of the class.”). A political subdi-

vision’s interest in a State’s share of an interstate

river’s water falls “squarely within the category of

interests with respect to which a State must be

deemed to represent all of its citizens.” Id. at 274

(“[A] State’s sovereign interest in ensuring an equita-

ble share of an interstate river’s water is precisely the

type of interest that the State, as parens patriae,

represents on behalf of its citizens.”).

EPCWID is in materially the same position as

Philadelphia and Charlotte. It concededly is a politi-

cal subdivision of Texas created pursuant to the Texas

Constitution. See EPCWID Mem. 1. As a creature of

Texas, it is subject to Texas law. See id. at 1-2 (stating

that EPCWID is “a general law water improvement

district subject to Chapter 55 of the Texas Water Code

Annotated, performing governmental functions and

standing on the same footing as counties and other

political subdivisions”). Pursuant to Texas law, it is

responsible for distributing water to Texas water

users, with authority to “‘provide for irrigation of

8

land within its boundaries’” and “‘furnish water for

domestic, power, and commercial purposes’” to other

end users of water in Texas. Id. at 2 (quoting Tex.

Water Code Ann. § 55.161). EPCWID does not claim

to represent the interests or serve the water needs

of anyone in New Mexico. Project interests in New

Mexico are served by EBID.

EPCWID, like the cities of Philadelphia or Char-

lotte, thus represents the interests of water users

within its territory and is responsible for delivering

water to those residents. EPCWID does not “repre-

sent interstate interests that fall on both sides of this

dispute.” South Carolina v. North Carolina, 558 U.S.

at 274. To the contrary, it “represents the interests of

Rio Grande Project water users in Texas.” EPCWID

Mem. 16 (emphasis added). Of necessity, it concedes

that Texas also represents all Rio Grande Project

water users in Texas. Jd. at 24 (acknowledging that a

“state, when a party to a suit involving a matter of

sovereign interest, ‘must be deemed to represent all

its citizens’”) (quoting New Jersey v. New York, 345

U.S. at 372-373) (quoting Kentucky v. Indiana, 281

U.S. at 173-174)). By seeking to intervene in this

original action, however, EPCWID claims the very

power that the Constitution reserves to Texas: the

power to represent the citizens and water users of the

State with respect to the adjudication of rights and

duties under an interstate Compact. See U.S. Const.

art. I, § 10, cl. 3. The interests that EPCWID seeks to

represent in this Court fall “squarely within the

category of interests with respect to which a State

9

must be deemed to represent all of its citizens.” South

Carolina v. North Carolina, 558 U.S. at 274.

B. EPCWID Is Not a Bi-State Entity or an

Entity with Unique Interests Whose Par-

ticipation Is Necessary to the Resolu-

tion of This Action

1. EPCWID Is Not a Bi-State Entity

EPCWID cannot show that it is comparable in

any material way to either of the two entities that the

Court has permitted to intervene in an equitable

apportionment action, viz., the Catawba River Water

Supply Project (CRWSP) and Duke Energy Carolinas,

LLC (Duke Energy). /d. at 269-273; see id. at 277

(Roberts, C.J., concurring in the judgment in part and

dissenting in part) (“Even though equitable appor-

tionment actions are a significant part of our original

docket, this Court has never before granted interven-

tion in such a case to an entity other than a State, the

United States, or an Indian tribe. Never.”).

Unlike a political subdivision of one State dedi-

cated to the interests of water users within that State,

CRWSP served the water needs of approximately

100,000 individuals in each of the two States, trans-

ferring roughly half of its total withdrawals of water

from the Catawba River to South Carolina consum-

ers. Id. at 269. It was owned by counties in both

States, had an advisory board with representatives

from both States, operated infrastructure and assets

owned by those counties, received revenues from

10

water sales in both States, and “relie[d] upon author-

ity granted by both States to draw water from the

Catawba River.” Jd at 261, 269. As the Court ob-

served, it was “difficult to conceive of a more purely

bistate entity.” Jd at 269.

Duke Energy likewise had a compelling interest

that was not specific to one State or the other. It

operated 11 dams and reservoirs in both North and

South Carolina, through which it generated electric-

ity for the entire region and controlled the flow of the

river through the States. Jd. at 272. There was no

other similarly situated entity on the Catawba River.

Id. Moreover, it had a unique and compelling interest

in protecting the terms of its federal regulatory li-

cense, which governed the river’s minimum flow into

South Carolina. Id. at 261-263, 272-273. Duke Energy

thus had a direct, distinct interest in the subject mat-

ter of the equitable apportionment action. Id. at 273.

EPCWID argues that it is “similarly situated” to

both CRWSP and Duke Energy because it has “hi-

state interests” that distinguish it from other» ©

users and creatures of Texas. See EPCWID Mer

16, 18. Unlike CRWSP, EPCWID’s authority is granted

solely by Texas; EPCWID claims no authority or legal

existence in New Mexico. See id. at 1-2. EPCWID’s

supposed bi-state interests are rights adjudicated

solely by a Texas State court, as certified by a Texas

State agency, to store and release Rio Grande water

in New Mexico “for diversion and use in Texas.” Jd. at

18. But a Texas court has no extraterritorial juris-

diction to decree water rights in New Mexico. See

11

Lindsey v. McClure, 136 F.2d 65, 70 (10th Cir. 1943)

(State water statutes “have no extraterritorial effect”);

Baker v. General Motors, 522 U.S. 222, 235 (1998)

(State court orders cannot be enforced in a sister

State when they purport “to accomplish an official act

within the exclusive province of that other State”);

El Paso County Water Improvement Dist. No. 1 v. City

of El Paso, 133 F. Supp. 894, 924 (W.D. Tex. 1955),

aff’d as modified, 243 F.2d 927 (5th Cir. 1957) (New

Mexico appropriation had no “extra-territorial force” in

Texas).' By EPCWID’s own assertion, then, its claimed

“bi-state” interest derives solely from Texas, through

a Texas court and a Texas agency.

EPCWID also claims to have “bi-state interests”

in “the complex system of irrigation infrastructure of

the interstate Project,” which “crosses (indeed criss-

crosses) state lines.” EPCWID Mem. at 17-18. Accord-

ing to the Bureau of Reclamation’s Official Report to

the Rio Grande Compact Commission, however, “the

[Rio Grande Project’s] irrigation and drainage system

is owned, operated, and maintained by [EBID] in the

New Mexico portion of the Rio Grande Project and

by [EPCWID] in the Texas portion of the Project.”

' Even by its own terms, the decree does not purport to

grant EPCWID “storage and release” rights in New Mexico; it

recognizes these rights solely in the United States. EPCWID

Mem. App. 10. The United States appropriated the Project

storage rights in New Mexico under New Mexico law. 43 U.S.C.

§ 383. EPCWID’s Texas Certificate of Adjudication recognizes

EPCWID’s right to use Project water only within Texas. Jd. at

App. 13.

12

Bureau of Reclamation, Calendar Year 2012 Report to

the Rio Grande Compact Commission at 47 (March

2013).* The fact that canals may cross a stateline is

an unremarkable feature of modern irrigation sys-

tems. Indeed, EPCWID admits that it provides water

exclusively “within EPCWID’s boundaries in El Paso

County, Texas.” EPCWID Mem. 3. As “a political

subdivision of the State of Texas,” id. at 1, EPCWID

is therefore a purely Texas entity representing purely

Texas interests. It has no bi-state oversight, revenues,

sales, customers, or constituents, and it cannot exer-

cise its powers of taxation and eminent domain

outside of Texas. It bears no resemblance to a “purely

bistate entity” such as CRWSP, and it does not hold

the type of bi-state license held by Duke Energy.

South Carolina v. North Carolina, 558 U.S. at 269.

2. EPCWID’s Allocation of Project Water

Does Not Give It a Unique Interest

EPCWID argues that it should be allowed to

intervene by virtue of “‘water-use rights that are

not dependent upon the rights of state parties.’”

EPCWID Mem. 19 (quoting South Carolina v. North

Carolina, 558 U.S. at 282 n.1 (Roberts, C.J., concur-

ring in the judgment in part and dissenting in part)).

Specifically, EPCWID claims “a right to a certain

quantity of water pursuant to [EPCWID’s] interests

* Available at https://www.usbr.gov/uc/albuq/water/RioGrande/

rpts/Final2012RGCCReport. pdf.

13

in the Project, its federal reclamation contracts, and

the Texas decree.” Jd. Contrary to EPCWID’s conten-

tion, however, its asserted interest is indeed “depend-

ent upon the rights of state parties.” South Carolina

v. North Carolina, 558 U.S. at 282 n.1 (Roberts, C.JJ.,

concurring in the judgment in part and dissenting in

part). It is dependent on the rights of Texas, in par-

ticular, because “(t]he interests of a State’s citizens in

the use of water derive entirely from the State’s

sovereign interest in the waterway.” Id. at 279. While

a political subdivision may hold a real property

interest in land to the exclusion of the State in which

it is located, EPCWID Mem. 22 (citing Texas v. Loui-

siana, 426 U.S. 465, 466 (1976) (per curiam)),

EPCWID’s asserted interest in the waters of the Rio

Grande differs from a real property interest in a

parcel of land for the “straightforward” reason that

“laln interest in water is an interest shared with

other citizens, and is properly pressed or defended by

the State.” South Carolina v. North Carolina, 558

U.S. at 279 (Roberts, C.J., concurring in the judgment

in part and dissenting in part).

EPCWID’s interests in the Project and in its fed-

eral reclamation contracts with the United States are

not exclusive or independent of Texas’s sovereign

interest in the waters of the Rio Grande under the

Compact. To the contrary, as EPCWID elsewhere ac-

knowledges, it receives Project water appropriated by

the United States for the Project under the law of

Texas for the Texas lands, and delivers that water to

identified irrigable lands in Texas. 43 U.S.C. § 383;

14

Nebraska v. Wyoming, 325 U.S. 589, 629-630 (1945)

(recognizing the United States’ appropriation of water

under Wyoming law for use in both Wyoming and

Nebraska). Texas’s claim to its “share of water appor-

tioned under the Compact” is properly pressed by

Texas alone. EPCWID Mem. 7.

EPCWID has failed to articulate any principled

basis for allowing it to intervene that would not also

entitle any number of similarly situated entities in

New Mexico and Texas to intervene. See New Jersey

v. New York, 345 U.S. at 373 (recognizing that if

Philadelphia were granted intervention, “there would

be no practical limitation on the number of citizens,

as such, who would be entitled to be made parties”).

Not only has another irrigation district, EBID,

already sought to intervene, but other political sub-

divisions, including Hudspeth County Conservation

and Reclamation District No. 1 and the City of El] Paso

in Texas, may seek to intervene as well. All of those

entities receive deliveries of Project water. In short,

EPCWID does not stand apart from the other public

and private entities in the Rio Grande Basin who

claim an interest in diverting and using the waters of

the Rio Grande. See South Carolina v. North Caroli-

na, 558 U.S. at 287 (Roberts, C.J., concurring in the

judgment in part and dissenting in part) (“To the

extent intervention is allowed for some private

entities with interests in the water, others who also

have an interest will feel compelled to intervene as

well — and we will be hard put to refuse them.”).

15

C. EPCWID Has No Role in Compact

Administration Nor Any Right Under

the Compact Distinct from Other Texas

Citizens

The subject of the dispute in this original action

is the respective rights the States bargained for

and Congress ratified in the Compact. See Texas’

Complaint 7 4, 10-28. In compact enforcement cases,

like this one, the Court will interpret and apply the

compact the States negotiated and ratified on behalf

of their citizens. See Tarrant Reg’l Water Dist., 133

S. Ct. at 2133, 2135. However, the Compact apportions

no water to EPCWID or its New Mexico counterpart,

EBID, nor does it confer any rights or obligations on

these entities to administer or ensure compliance

with its terms. Neither EPCWID nor EBID is men-

tioned in the Compact. EPCWID has no unique or

compelling interest in the meaning or the application

of the Compact apart from the interests of the States

named as parties to the Compact and as parties to

this original action.

EPCWID claims that its “direct stake in the Proj-

ect supports its intervention.” EPCWID Mem. 14-15.

But the United States, not EPCWID, owns and op-

erates the Project dams and reservoirs. EPCWID’s

responsibility, like that of EBID in New Mexico, is to

operate Project facilities in Texas and manage Project

deliveries to EPCWID’s members in Texas. These re-

sponsibilities relate to purely intrastate matters that

arise only after the States’ respective rights under the

Compact have been satisfied. In short, EPCWID’s

16

concerns arising from its role as operator of Project

facilities in Texas have no relevance to the instant

dispute over the respective rights of the signatory

States under the Compact. EPCWID thus fails to

assert any interest in the Compact that would distin-

guish it from the class of all other citizens and politi-

cal subdivisions with an interest in Texas’ share of

the waters of the Lower Rio Grande.

D. EPCWID’s Reliance on Intervention

by Nonstate Entities in Other Origi-

nal Actions Is Misplaced

Though EPCWID claims “unique interests ...

akin to those interests found sufficient to support

intervention in prior original action cases,” EPCWID

Mem. 21, none of the entities that were permitted to

intervene in the cases EPCWID cites is analogous to

EPCWID. For instance, in Arizona v. California, 460

U.S. 605 (1983), the Court allowed several Indian

tribes to intervene in a dispute between Arizona and

California over the waters of the Colorado River,

notwithstanding their prior representation in the

case by the United States. Unlike the tribes, whose

rights were not subordinate to rights of the United

States, EPCWID’s right is subordinate to Texas’ ap-

portionment of Rio Grande water. Hinderlider v. La

Plata River & Cherry Creek Ditch Co., 304 U.S. 92,

106 (1938) (recognizing that compact apportionment

“is binding upon the citizens of each State and all

17

water claimants”).* And unlike the tribes, EPCWID is

not a sovereign entity in its own right, so the rule of

New Jersey v. New York squarely applies, as EPCWID

acknowledges. See EPCWID Mem. 12.

In Oklahoma v. Texas, 258 U.S. 574, 580 (1922),

and Texas v. Louisiana, 416 U.S. 965 (1974), the

Court allowed the intervention of nonstate parties in

two original actions to resolve conflicting land owner-

ship claims asserted by the nonstate parties, claims

whose resolution depended, in turn, on the resolution

of boundary disputes between the States. Here, no

party has raised any issue concerning EPCWID’s

land ownership right. EPCWID’s rights to water

derive from Texas’ Compact apportionment, and its

right to delivery of that water derived from Project

contracts under reclamation law. 43 U.S.C. § 383.

Oklahoma v. Texas is further distinguishable because

it was decided well before New Jersey v. New York

* In Alaska v. United States, the Special Master found that

even Indian Nations could not intervene in an original action

where they lacked a direct interest in the litigation in the form

of a claim of title to the land, even though they asserted the

litigation would affect their ability to use the disputed land and

gather important traditional foods. Report of the Special Master

on the Motion to Intervene by Franklin H. James, The Shakan

Kwaan Thling-Git Nation, Joseph K. Samuel, and the Taanta

Kwaan Thling-Git Nation, Alaska v. United States, No. 128,

Original, at 17-18 (Nov. 2001). Like the Nations in Alaska v.

United States, EPCWID has no direct interest upon which to

base its intervention, as the Compact apportions the water

among the states, and EPCWID’s claims are therefore depend-

ent upon and derivative of Texas’ Compact apportionment.

18

announced the modern rule governing nonstate

intervention in original actions.

Moreover, Maryland v. Louisiana, 451 U.S. 725,

745 n.21 (1981), which permitted a number of gas

pipeline companies to intervene in an original action

challenging a Louisiana tax on natural gas, does not

counsel in favor of intervention here. EPCWID argues

it is similar to the pipeline companies because its

presence as a party “will allow ‘full exposition of the

issues’..... ” EPCWID Mem. 22 (quoting Maryland v.

Louisiana, 451 U.S. at 745 n.21). EPCWID’s belief

that it can contribute to a “full exposition” of Project

issues, id., does not provide a basis for intervention

herein, where the only exposition that matters is the

States’ respective rights in the Compact.

In sum, the States as sovereign parties to an

original action presumptively represent all of their

“citizens and creatures.” South Carolina v. North

Carolina, 558 U.S. at 266-267. EPCWID has not car-

ried its burden of overcoming that presumption by

showing that it has an interest “apart” and different

in kind from those of all other citizens and creatures

of Texas. Jd. at 266.

Ill. EPCWID’S INTEREST IS REPRESENTED

BY TEXAS

EPCWID has also failed to show that its asserted

interest in this original action “‘is not properly

represented’” by Texas. Jd. (quoting New Jersey v.

New York, 345 U.S. at 373). To reiterate, the Court

19

presumes that a State in its sovereign capacity repre-

sents the interests of all of its citizens and creatures.

Id. at 267; Nebraska v. Wyoming, 515 U.S. at 21-22.

The interests of the States in representing all of their

citizens and political subdivisions are stronger in an

original action arising under an interstate compact

than in an equitable apportionment action, because

in the former, the States’ apportionment agreement is

the central question, whereas in the latter, the Court

apportions the river among the States under its eq-

uitable jurisdiction. Yet, even in an equitable appor-

tionment action, the States are deemed to represent

their citizens by virtue of the parens patriae doctrine.

South Carolina v. North Carolina, 558 U.S. at 266.

The State’s interest as parens patriae “has been char-

acterized as a ‘quasi-sovereign’ interest.” Alfred L.

Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458

U.S. 592, 601 (1982). Even when the State properly

acts as parens patriae, the “flexible” nature of an

equitable apportionment action allows the Court “to

seek out the most relevant information from the

source best situated to provide it,” which may include

the individual interests of nonstate entities. Jd. at

271-272 (citing Maryland v. Louisiana, 451 U.S. at

745 n.21).

By contrast, in an original action to interpret and

apply an interstate compact, there is nothing “quasi”

about the States’ sovereign interests. See Hinderlider,

304 U.S. at 106 (citing Poole v. Fleeger, 36 U.S. (11

Pet.) 185, 209 (1837)). The States’ sovereign interests

in this action derive not from the amorphous “judicial

20

construct” of the parens patriae doctrine, Alfred L.

Snapp & Son, Inc., 458 U.S. at 601, but directly from

their retained sovereignty as acknowledged in the

Constitution, U.S. Const. amend. X, and their status

as parties to the Compact. Each State, as a signatory

to the Compact, “unquestionably” has “a direct inter-

est of its own” and properly takes “full control” of the

litigation on behalf of its citizens where the Com-

pact’s meaning and application are at issue. Kansas v.

Colorado, 533 U.S. 1, 8 (2001). As in other contract

actions, the Compact’s meaning is determined not

by way of an open-ended search for input from all

available sources, South Carolina v. North Carolina,

558 U.S. at 272, but strictly in accordance with the

intentions of the compacting parties: “In this endeav-

or, as with any other contract, the parties’ intentions

control.” M & G Polymers USA, LLC v. Tackett, 135

S. Ct. 926, 933 (2015) (internal quotation omitted);

Texas v. New Mexico, 482 U.S. 124, 128 (1987) (“‘A]

Compact is, after all, a contract.’ It remains a legal

document that must be construed and applied in ac-

cordance with its terms.”) (quoting Petty v. Tennessee-

Missouri Bridge Comm’n, 359 U.S. 275, 285 (1959)

(Frankfurter, J., dissenting)).

EPCWID argues that its interests “are not ade-

quately represented by Texas in this case” because

Texas is not a Project contract holder. EPCWID

Mem. 24-25. But EPCWID fails to overcome the pre-

sumption that Texas as the signatory to the Compact

properly represents the interests of all of its citizens.

New Jersey v. New York, 345 U.S. at 372. Texas was

21

among the negotiators and signatories of the Compact

and represents EPCWID in parens patriae herein.

EPCWID’s interests in the Project have no bearing on

Compact interpretation. Just because Texas is not a

named party to the reclamation contracts for the use

and distribution of Project water does not mean Texas

has no interest in protecting the rights of its citizens,

including EPCWID. The Commonwealth of Pennsyl-

vania, in New Jersey v. New York, had no direct

interest in the City of Philadelphia’s water contracts

or infrastructure, for which Philadelphia was solely

responsible under its Home Rule Charter. 345 U.S. at

374. Despite this, the Court found that Pennsylvania

adequately represented Philadelphia’s interests be-

cause the city’s interests were “invariably served by

the Commonwealth’s position.” Jd. The same is true

here.

The very fact that Texas initiated this action

demonstrates that Texas has sought and will continue

to represent and protect EPCWID’s interests with re-

spect to Rio Grande water and this litigation. Indeed,

EPCWID seeks the same general relief put forth by

Texas: an injunction prohibiting New Mexico from

permitting interception and interference with Rio

Grande water in New Mexico. Compare EPCWID

Complaint at 2, with Texas Complaint at 15-16. The

fact that Texas and EPCWID seek essentially the

same relief underscores Texas’ ability to fully repre-

sent EPCWID’s interests in this litigation. See, e.g.,

Response of the State of Texas in Opposition to Re-

quest to Participate in Oral Argument by Amicus

22

Curiae E] Paso County Water Improvement District

No. 1, No. 141, Original, at 2 (Apr. 30, 2015) (Texas

affirmatively stating that it adequately represents

EPCWID and “EPCWID offers no substantive argu-

ments not already presented by Texas”).

To whatever extent EPCWID has different views

from Texas on particular issues, those differences are

not relevant to this Court’s determination of Texas’

rights and obligations under the Compact. Disagree-

ments between and among the citizens of a State are

a fact of life in a pluralistic society. The Court’s con-

cern that it not be “drawn into an intramural dispute

over the distribution of water” presupposes that dis-

putes within a State can and do exist. New Jersey uv.

New York, 345 U.S. at 373. Intramural disagreements

will not justify a nonstate entity’s intervention for the

precise reason that, if they did, the State “‘might be

judicially impeached on matters of policy by its own

subjects.’” South Carolina v. North Carolina, 558

U.S. at 267 (quoting New Jersey v. New York, 345 U.S.

at 373); see id. at 280 (Roberts, C.J., concurring in the

judgment in part and dissenting in part) (“The State

‘must be deemed to represent all its citizens,’ not just

those who subscribe to the State’s position before this

Court. The directive that a State cannot be ‘judicially

impeached on matters of policy by its own subjects’

obviously applies to the case in which a subject dis-

agrees with the position of the State.”) (quoting

New Jersey v. New York, 345 U.S. at 372, 373) (addi-

tional citation and internal quotation marks omitted).

The States properly represent the interests of their

23

respective citizens and political subdivisions in this

Court whether or not they agree on all issues.

°

CONCLUSION

EPCWID’s motion for leave to intervene should

be denied.

Respectfully submitted,

HEcTOR H. BALDERAS LisA M. THOMPSON

Attorney General MICHAEL A. Kopp

STEPHEN R, FARRIS Special Assistant

SARAH A. BOND* Attorneys General

Assistant Attorneys General TROUT, RALEY, MONTANO,

Amy I. HAAS WITWER & FREEMAN, P.C.

Special Assistant 1120 Lincoln Street,

Attorney General Suite 1600

General Counsel, Denver, Colorado 80203

New Mexico Interstate 303-861-1963

Stream Commission

STATE OF NEW MEXICO JOHN B.D ena

Special Assistant

P.O. Drawer 1508

; Attorney General

Santa Fe, New Mexico 87501

DRAPER & DRAPER LLC

505-827-6010 505-570-4590

sbond@nmag.gov .

“Counael of Reserd JEFFREY J. WECHSLER

Special Assistant

Attorney General

MONTGOMERY & ANDREWS, P.A.

325 Paseo de Peralta

Santa Fe, New Mexico 87501

505-982-3873