A convoluted dispute between Texas and New Mexico over the waters of the Pecos River went before the U.S. Supreme Court on Monday, confounding some of the justices and tilting some toward New Mexico’s position.
The oral argument took place on the first day of the high court’s term, and was broadcast telephonically because the justices and the lawyers are doing their work remotely in the pandemic era.
Though the two states have squabbled over water usage for decades, the tussle at issue before the court began in 2014. The massive tropical storm Odile filled the river and reservoirs to the brim. Under the Pecos River Compact, Texas asked New Mexico to hold back some of the water until the Red Bluff reservoir could handle the flow.
New Mexico did so, but after many months, some of the water evaporated, and the somewhat metaphysical question became: should Texas have to credit New Mexico for water that is no longer there and did not make it across the border. The “River Master” who administers allocation of water under the compact, ruled in favor of New Mexico in a move that Texas believes will result in losing needed water in a future drought.
“It’s in the sky,” said Justice Stephen Breyer, referring to the evaporated water. “This is very technical stuff here.”
Justices Sonia Sotomayor and Clarence Thomas confessed they were confused by different aspects of the case, and Justice Samuel Alito Jr. said, “I find this a very difficult case.” Justice Brett Kavanaugh cut to the chase and asked if New Mexico’s lawyer could “just zero in on the real-world impacts of this dispute?”
Jeffrey Wechsler, a shareholder in Montgomery & Andrews, a Santa Fe law firm, answered, “This is a significant amount of water in a very dry part of the country, and, yes, whichever state is unsuccessful here, it could have real-life implications to the lives and livelihoods of the farmers.”
For his part, Texas solicitor general Kyle Hawkins said, “The River Master’s decision to award evaporative loss delivery credits to New Mexico effectively deprives the farmers and businesses of west Texas of a year’s worth of irrigation and threatens incalculable economic harm should New Mexico redeem those credits during a drought year.”
But the justices did not seem impressed by either dire scenario, and some seemed comfortable with the decision of the river master, first appointed by the court in 1988. The U.S government also sided with New Mexico, a decision that could weaken the clout of Texas.
“Could you tell me exactly why this assessment by the River Master is wrong?” Thomas asked Hawkins at one point.
Breyer also said that the River Master’s assessment “seems to make sense. That’s why we appoint River Masters, to figure those things out.”