Tropical storm Odile dumped massive amounts of water in Mexico and nearby New Mexico and Texas in September 2014.
It produced so much rain that the Red Bluff Reservoir, which straddles the Texas-New Mexico border and is part of the Pecos River, was full. Bridges over the Pecos River in New Mexico were washed out. Texas asked New Mexico to hold back some of the water within its territory until the Red Bluff could handle the flow.
New Mexico said yes, but a dispute over who should pay for the water that evaporated during the holding period ensued. Six years later, Texas brought the dispute to the U.S. Supreme Court.
The case of Texas v. New Mexico will be argued on October 5, the first day of the high court’s fall term. Because of the pandemic, the argument will take place telephonically with participants talking remotely, away from the court itself.
As with cases that were argued in the same way in May, the telephonic arrangement will likely attract keen interest, because the publicity-shy court had never before allowed live broadcast of its proceedings, either by video or audio.
But it’s probably a safe bet that Texas v. New Mexico won’t be the most listened-to case broadcast during the court’s October sitting. The two states have been sparring over highly technical water issues under the Pecos River Compact for decades. The Supreme Court’s online docket for Texas v. New Mexico starts off with an entry dating back to January 1960.
The case comes to the court through its “original jurisdiction,” specified in the Constitution as the way in which litigation between states is handled. Unlike other kinds of cases that come up through lower courts, these “original” disputes got go to the Supreme Court first.
Most of “original” cases involve changing boundary lines and tussles over water usage, which means that the language of the briefs and the arguments are sometimes better understood by engineers and surveyors, not lawyers.
But the lawyers carry on. Representing Texas is the state’s solicitor general, Kyle Hawkins, who has argued twice before the Supreme Court. In addition to the water case this month, Hawkins is expected to argue November 10 in the high-profile Texas v. California case that could cripple the Affordable Care Act.
Arguing for New Mexico is Jeffrey Wechsler, a shareholder in Montgomery & Andrews, a Santa Fe law firm. His firm’s website states that he has “continuously represented states before the United States Supreme Court in interstate water litigation since 2002.”
Representing the federal government is Masha Hansford, an assistant to the U.S. solicitor general. Formerly a counsel at the Paul Weiss, Rifkind, Wharton & Garrison law firm, she was named a rising star by the National Law Journal in 2019. Asked at the time for her secret for success, she said, “Craft every argument to be response-proof: figure out a completely defensible rule and the winning theory that backs it up. It’s not enough simply to engage in wishful thinking, especially at oral argument. And of course, shamelessly exploit it when opponents fail to do the same.”
The winning theory in the Pecos River case may be hard to find.
The main issue is whether a Supreme Court-appointed “river master” had the authority to charge Texas for the cost of the water that evaporated in New Mexico before it was released into Texas when the flooding subsided. New Mexico had asked the river master to charge Texas for the loss.
A river master administers the interactions between the two states, making sure they comply with the compact and allotting enough water to Texas from New Mexico. The federal government, which is siding with New Mexico, has a stake in the case because one of the swollen reservoirs was operated by the federal Bureau of Reclamation.
With the case turning on the status of evaporated water, it could be said that the dispute is literally about nothing. But Texas went full-bore against New Mexico in bringing the case to the Supreme Court.
“The River Master may not wield a power that this Court declined to exercise,” Texas SG Hawkins wrote in his Supreme Court filing. Hawkins also threw shade on the river master, an engineering professor from Colorado State University named Neil Grigg. “Given the River Master’s lack of a legal background, he may not have been aware that parties are expected to act to preserve their rights under the law even while negotiating,” Hawkins wrote.
In an interview with Texas Lawbook, Grigg said he was following the rules for river masters, adding that “I saw no error in what New Mexico did.”
Grigg, who has been the Pecos River master since 1988, said, “The issue at hand didn’t seem to be important enough to take it to the court.” He added, “It’s not a lot of money,” though no one seems to know exactly how much money is at stake. Grigg said the two states involved are “not always antagonistic.”
In his many years as the river master, Grigg has rarely visited the 926-mile Pecos River, but he knows how it works. It begins with spring mountain snowmelt in New Mexico, he said, and makes its way through Texas, with the water slowing down because of sediment and evaporation until it joins the Rio Grande.
As narrow-gauge as the Texas v. New Mexico case may be, Grigg says the outcome may have broader implications.
“All around the world, rivers are in dispute over ownership of the water,” Grigg said. “With climate change, there are going to be more disputes like this one.”