Opinion analysis: Oklahoma skunks Texas in cross-border water rivalry

The Court continues to build on its recent record of unanimous decisions, ruling in Tarrant Regional Water District v. Herrmann that a Texas water district does not have the right to enter Oklahoma to divert water for thirsty Texans in the Dallas-Fort Worth region. The twenty-four-page opinion by Justice Sotomayor elicited no concurring or dissenting comment. Powder is being kept dry for the explosions to come. The sting of defeat for Texas was made worse by the Justices allusion to the football rivalry between the two states, where the Sooners have also dominated the Longhorns in recent years.

The decision affirms the judgments reached below by the district court and the Tenth Circuit, on a matter that concerns only one clause in an interstate compact that allocates water in the river dividing Texas and Oklahoma. Justice Sotomayors opinion is far more persuasive than that of the Tenth Circuit. But except for a few minor points about interpretation, the decision makes no change in the law as it existed when the Court agreed to grant review. Whether this is a wise use of the Courts time depends on ones view of the mischief the Court would otherwise make if it were not unanimously affirming judgments of the Tenth Circuit about one clause in a water compact.

To remind readers, the case turned on the meaning of a provision of the Red River Compact that gives each of the signatory states (Arkansas and Louisiana as well as Oklahoma and Texas) equal rights to certain excess water in one subbasin of the river, provided no state was entitled to more than twenty-five percent. Texas argued that this meant it could enter any portion of the subbasin to take up to twenty-five percent, including the portion of the subbasin in Oklahoma. Oklahoma argued that the language meant each state could take up to twenty-five percent from its own territory, but could not enter another state to take water without that states consent. Justice Sotomayor correctly noted that the compact was silent on the question whether cross-border diversions were permitted by the clause. She then proceeded carefully to dissect the arguments of the parties about the correct interpretation of this silence.

The Texas water district relied primarily on the expressio unis canon: other clauses in the compact expressly limited diversions to water inside the borders of a state; the silence of the clause in question should therefore be interpreted to mean that cross-border diversions were permitted. Justice Sotomayor parried this by noting other clauses in the compact did not expressly limit diversions to those within a state, yet logically had to be read as being so limited. She then turned to other constructional principles that favored Oklahomas view: the well-established principle that states do not easily cede their sovereign prerogative to control waters in their own territories; the fact that other interstate water compacts, when they have created cross-border rights, have done so explicitly; and the fact that no other state, in the many years since the compact was approved in 1980, had asserted a right to make cross-border diversions under the clause.

The bottom line: the Texas water district was free to take up to twenty-five percent of the excess water in the subbasin from inside Texas if it could find that much and it could demand an accounting if it thought Oklahoma was diverting more than twenty-five percent. But Texas could not enter Oklahoma without Oklahomas consent to divert water in Oklahoma.

The Court also rejected the Texas water districts dormant Commerce Clause claim, but did so in a way that deprives this part of the decision of any significance. The Court read the water district to argue that the Commerce Clause was violated because Oklahoma was discriminating against out-of-state users with respect to water that was left unallocated under the Compact. The argument failed, according to the Court, because there would be no unallocated water in Oklahoma unless Texas could show that Oklahoma was taking more than twenty-five percent of the excess water, and it had not asked for an accounting to establish this fact. In effect, the Court read the compact as superseding the dormant Commerce Clause with respect to the twenty-five percent share allocated to each state; a constitutional issue would be presented only if it could first be established that water was available in a state above this threshold and the state was discriminating against interstate sources with respect to the excess.

What then is significant about this decision for those not directly engaged in battles over the Red River Compact? The Court establishes, in a footnote, that a congressionally approved compact, as federal law, preempts state law that conflicts with the compact under the Supremacy Clause. It also establishes, in another footnote, that the presumption against preemption does not apply to interstate compacts, because the States themselves have drafted and agreed to the terms of the compact. There is some quotable language in the section about the states sovereign prerogative to control water resources within their territories, which will undoubtedly be trotted out in future cases involving apportionment of waters, the public trust doctrine, and the like. And portions of the Courts opinion provide an excellent example of pragmatic interpretation, especially where it talks about the administrative difficulties that would be created by recognizing a cross-border right to divert water without additional guidance from Congress or the affected states.

Otherwise, save your eyeballs for the next two weeks.

Plain English Summary

The Red River Compact allocates water between four states, including Texas and Oklahoma. Among other things, it provides that each of the four states can take twenty-five percent of the excess water in a particular subbasin in the river. Texas argued that, under the compact, it could take twenty-five percent of all of the excess water, and that it had could go into Oklahomas part of the subbasin to do that. Oklahoma disagreed, arguing that Texas could only take twenty-five percent of the excess water from its own part of the subbasin. The Court agreed with Oklahoma, ruling that Texas was not authorized to take water from tributaries in Oklahoma without Oklahomas consent.