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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2018

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_1000%3A34. Public record. Not legal advice.