Argument analysis: Justices press advocates on Rio Grande Compact and United States’ treaty obligations to Mexico

Yesterday, the Supreme Court heard oral argument in two original jurisdiction disputes among states in which key federal water agencies are involved. In the first case, the United States Department of the Interior’s Bureau of Reclamation operates the Rio Grande Project, which regulates the flows of the Rio Grande River, affecting the water rights of users in Texas, Colorado and New Mexico and delivering water from Elephant Butte Reservoir in New Mexico to the Republic of Mexico. The congressionally approved Rio Grande Compact of 1938 apportioned water rights among these states. The United States argued an exception to the first interim report by the special master, which recommended dismissing the complaint of the United States for relief under the compact, while allowing the United States to proceed as an intervening plaintiff instead. Colorado also argued an exception to the first interim report, asking the Supreme Court to limit any claims of the United States to those based on the 1906 “Convention between the United States and Mexico for Equitable Distribution of Waters of the Rio Grande for Irrigation Purposes.” Other matters reflected in the first interim report had previously been disposed of by order without oral argument on October 10, 2017.

The United States’ complaint in intervention asserted jurisdiction under both 28 U.S.C. § 1251(b)(2) and Article III, Section 2, Clause 2 of the United States Constitution. The United States invoked the original, but not exclusive, jurisdiction of the Supreme Court over its dispute with New Mexico, citing to its treaty powers, the Rio Grande Compact and claims under reclamation law. Colorado and New Mexico objected to this broad jurisdictional assertion, especially arguing that the Rio Grande Compact did not give any substantive rights to the United States. The special master had stated that the United States is not typically a party in interstate disputes, appearing as an amicus if at all. He noted the occasional exceptional case in which the United States is allowed to intervene to protect unique sovereign interests. The special master had argued that the claims of the United States under the Rio Grande Compact be dismissed, but that jurisdiction be extended for the other claims made under the federal government’s treaty powers and under reclamation law.

Ann O’Connell, appearing on behalf of the United States, began by arguing that the government’s complaint did not distinguish between its claims under the Rio Grande Compact and those under other laws, leading to immediate questioning by Justices Sonia Sotomayor and Ruth Bader Ginsburg. Ginsburg asked O’Connell to identify the dividing line between when the United States would have a right to come into court as a party under a compact and when it could not do so. O’Connell went through the language of the compact to connect the obligations of New Mexico to deliver water to the Elephant Butte Reservoir with the obligations of the United States to deliver water from the reservoir to water users and to Mexico. In essence, she argued that the compact incorporated the treaty obligations and reclamation-law rights of the United States thoroughly enough to give the United States party status under the compact itself, even though it was not a signatory.

O’Connell conceded to Chief Justice John Roberts that the federal interests under the 1906 convention could be asserted by the United States as an amicus. Roberts then asked why it is necessary for the United States to intervene, leading O’Connell to point out that New Mexico had insisted that the United States was a necessary party to Texas’ complaint. Justice Elena Kagan then pressed O’Connell on whether the United States could file its own suit against New Mexico under the compact, irrespective of Texas’ claims. O’Connell responded that it could. Roberts said that it appeared that the United States was arguing for an implied right of action under the Rio Grande Compact as a third party beneficiary of a contract might do. But such an argument is flawed, since the United States approved the compact without protecting its third party rights. Roberts asked whether the United States could not have conditioned its approval of the compact upon an explicit right of action. O’Connell responded that she was not aware of any compact that was conditioned upon an explicit right of action.

Scott Keller, the solicitor general of Texas, followed to argue in support of the United States’ position. Keller argued that because the United States owns the Rio Grande Project; because the project was a necessary predicate to the Rio Grande Compact; and because the Rio Grande Project is the sole means to physically deliver the apportioned waters, the compact created a statutory duty to the United States. In turn, this duty supports the United States’ ability to bring claims against New Mexico under the compact. Justice Anthony Kennedy asked whether this claim against New Mexico could be brought by the United States in district court. Keller replied that it could, arguing that the Rio Grande Compact and the Rio Grande Project act together to create an unusual situation: New Mexico delivers water under the Rio Grande Compact to the Rio Grande Project within the state of New Mexico and then relinquishes control of that water to the United States. In response to a question from Sotomayor, Keller maintained that the United States could sue New Mexico, instead of individual water users, under state-law reclamation principles. Kagan and Sotomayor pressed Keller on whether there was any divergence in interest between the United States and Texas. Keller identified one issue — whether regression analysis of return flows could be used to calculate usable water — on which their positions may diverge.

Frederick Yarger, the solicitor general of Colorado, argued that the Rio Grande Compact conferred no claims on the United States. He observed that Colorado is party to nine interstate compacts, but that in none of them has the United States ever asserted an independent action under the compact. Yarger conceded to Ginsburg that the Supreme Court had not foreclosed the claims not previously asserted, but pointed to the Republican River case to demonstrate that the United States can appropriately assert federal interests as amicus. Yarger wondered how states could ever reach final settlements of claims among themselves under compacts if the federal government can enforce compacts to which it is not a party. Kennedy asked Yarger whether the Rio Grande Compact’s specific references to the Rio Grande Project and to the United States’ delivery obligations to Mexico do not distinguish this case from the Republican River dispute. Kennedy stated, “This is an international law obligation on the United States that the United States would be remiss if it ignored.”  Yarger responded that the United States can bring a claim under the 1906 convention, but not under the Rio Grande Compact itself. Sotomayor asked Yarger whether the closer case is not Nebraska v. Wyoming, in which the United States was party to a declaratory judgement involving one of its facilities, but Yarger pushed back, pointing out that the United States was a party to the equitable apportionment decree in that case, while it was not a signatory to the Rio Grande Compact, and that the United States sought only defensive relief in that case. Justices Neil Gorsuch, Kagan and Ginsburg each pressed Yarger on whether the federal interest in its delivery obligations to other parties created a claim, but Yarger resisted taking a position on those questions, which he stated were not before the court. Yarger stuck to his guns, maintaining that the treaty claims under the 1906 convention made the United States a necessary party for those claims, but that the only claims still at issue under the Rio Grande Compact were between signatory states and that allowing the United States to raise them would set a terrible precedent for other compacts.

Marcus Rael, representing New Mexico, argued that the United States cannot raise claims under the Rio Grande Compact and that any claims based on treaty obligations under the 1906 convention arise under the treaty and not under the compact. Rael stated that New Mexico does not take exception to the United States raising claims under reclamation law to protect its interests in this original jurisdiction case. Pressed by Kagan and Ginsburg on the reasons for New Mexico’s objections to the federal government’s raising its claims under the compact, Rael explained that the special master’s solution to the problem avoided New Mexico’s compact-precedent concerns, because the United States could raise every issue except the compact claims, which Texas was already going to litigate fully. A comprehensive body of law has developed around the provisions of the Reclamation Act of 1902 already, and the United States can raise claims under that law under the special master’s reported recommendation. Rael argued that the United States should be allowed to intervene, because it is a necessary party, but that its claims arise under the 1906 convention and the Reclamation Act, not under the Rio Grande Compact. Kagan and Sotomayor pressed for clarification of New Mexico’s position. Rael emphasized that the water is already allocated among the three states itself by the Rio Grande Compact, while the United States uses the Rio Grande Project as a delivery vehicle to meet its obligations to Mexico. Therefore, in New Mexico’s view, the claims of the United States arise, not from the provisions of the Rio Grande Compact, but from the federal government’s ownership of the Rio Grande Project and its powers to make treaties with Mexico.

Yesterday’s questioning suggests that some of the justices are concerned about the implications of rejecting the special master’s recommendation and allowing the United States to proceed as a party raising claims under the Rio Grande Compact. Several justices probed whether the United States could protect its interests without party status under the compact. New Mexico was willing to allow the Reclamation Act of 1902 claims of the United States to proceed in this case under intervention. So the real nub of contention appears to be the scope of the original and exclusive jurisdiction of the Supreme Court, and whether the United States can be a party in intervention to enforce its claims under the Rio Grande Compact and not whether it can press claims under the Reclamation Act of 1902 or under the 1906 convention. Litigation of the claims of Texas against New Mexico under the Rio Grande Compact will continue regardless of whether the court allows the United States to press those claims going forward.