Texas v. New Mexico and Colorado

WHETHER THE COMPACT AFFECTS FEDERAL INTERESTS

The United States first argues that it has its own federal interests in ensuring that Texas, Colorado, and New Mexico abide by the Compact. The United States argues that it has a federal interest in ensuring water from the Project is satisfactorily delivered to Mexico according to the terms of the 1906 Convention between the United States and Mexico (the “1906 Treaty”), and thus should be allowed to intervene to comply with the 1906 Treaty. The United States asserts that prior precedent has established its authority to prevent an individual state from interfering with the United States’ treaty obligations, and under the 1906 Treaty, the United States must annually send to Mexico at least 60,000 acre-feet of water from the Reservoir, which is part of the Project. The United States contends that by mandating that New Mexico deliver a certain amount of water to the Reservoir, the Compact helps ensure that the United States will be able to fulfill its Treaty obligations to Mexico; thus, if New Mexico takes water back after delivery, this impermissibly removes project water that the United States is required to deliver. In summary, the United States argues that it has a “distinctively federal interest” in ensuring that its Treaty obligations to Mexico are not threatened by a state’s refusal to abide by the Compact.

The United States asserts that it also has a federal interest in protecting both the Project itself and the United States’ own contractual obligations to deliver Project water to two water user associations: Elephant Butte Irrigation District (“EBID”) in New Mexico, and El Paso County Water Improvement District No. 1 (“EPCWID”) in Texas. The United States stresses that it was already delivering water from the Reservoir to EBID and EPCWID decades prior to the Compact. The United States adds that the Compact explicitly acknowledges the United States’ interests in fulfilling its contractual obligations by declaring that all water stored in the Reservoir is “available for release in accordance with irrigation demands, including deliveries to Mexico.” Accordingly, the United States contends that protecting Project operations and the United States’ contractual obligations to deliver Project waters is “a distinctively federal interest” that thus warrants U.S. intervention.

In response, Colorado acknowledges that Congress had to approve the Compact, but Colorado maintains that the Compact did not expressly grant the United States any rights under it. Colorado states that, under the Compact, the states (Texas, New Mexico, and Colorado) are the only parties who represent the interests of the water users affected and that the United States does not have an interest here. Colorado points to the language of the Compact itself, which states that, “Nothing in this compact shall be construed as affecting the obligations of the United States of America to Mexico under existing treaties, or to the Indian tribes, or as impairing the rights of the Indian tribes.” Colorado further argues that the United States’ claims concern the delivery of water downstream from the Reservoir, an issue which the Compact does not address. Instead, Colorado asserts that the Compact’s provisions explicitly separate the United States’ obligations to deliver water from the Reservoir, and the compacting States’ obligations to deliver water to the Reservoir. In summary, Colorado stresses that although the water stored in the Reservoir includes the amount necessary for the United States to deliver to Mexico, the Compact itself does not affect deliveries of Project water downstream from the Reservoir.

Furthermore, Colorado explains that although the Compact considers Project conditions when determining Colorado and New Mexico’s obligations upstream, this does not give rise to new federal rights. As an example, Colorado claims that under the Compact, Texas may request Colorado or New Mexico to release upstream storage waters to increase the volume of water in the Reservoir to 600,000 acre-feet if certain conditions are met. Colorado stresses that the Compact does not assert that the United States also has the right to request Colorado or New Mexico to release water stored upstream. Colorado accordingly contends that the provisions of the Compact that mention the Project serve to protect the compacting states from various environmental conditions, rather than protect the Project itself or the United States’ interests downstream.

Similarly, New Mexico further argues that the Special Master correctly held that the United States does not have a claim under the Compact because any federal interests the United States has in the downstream water of the Rio Grande under the Treaty arose prior to the signing of the Compact in 1938. Thus, New Mexico argues, the Compact was only meant to protect the interests of the three signatory states and not the United States. New Mexico contends that, if the United States can assert claims under state compacts as a non-party, it would risk “upsetting the bargain” between the compacting states and having the United States take positions that are contrary to those of the compacting parties.

UNITED STATES PARTICIPATING IN ORIGINAL ACTIONS AS A PARTY

In the First Interim Report, the Special Master stated that this case is the first time in history that the United States has intervened as a party-plaintiff rather than an amicus curiae in an original action, where the United States is arguing it has its own water rights that are protected by a compact. The United States disputes this assertion, explaining that it has previously intervened as a party-plaintiff in a dispute between Texas and New Mexico over the Pecos River Compact, as well as in Texas v. Colorado, which like the present case, involved a dispute over the Rio Grande Compact. The United States also disputes the Special Master’s interpretation of Nebraska v. Wyoming, which involved a dispute over water rights stemming from the North Platte River and in which the United States intervened as a defendant. In Nebraska v. Wyoming, the Court permitted Wyoming to assert a claim directly against the United States, even though the United States did not receive any apportionment of water under the decree at issue. The United States argues that if Wyoming could assert claims against the United States for undermining an equitable apportionment decree despite the United States not being party to the underlying agreement, the United States can conversely assert a claim against New Mexico, despite not being a party to the Compact.

Colorado asserts that although the cases the United States cites hold that the United States can have federal interests affected by a compact or decree among States, none of them hold that the United States may assert a claim under the compact itself. New Mexico maintains that in the few instances that the United States has intervened as a party in an original action, it has done so to protect independent federal interests, rather than to assert a new cause of action under a compact. For example, in the prior dispute between Texas and New Mexico over the Pecos River Compact, Colorado claims the United States was permitted to intervene as a plaintiff based on its claims relating to its treaty with Mexico, water rights of Indian tribes, and federal lands and facilities, but not claims under the Pecos River Compact. New Mexico additionally argues that in Nebraska v. Wyoming, just because Wyoming was permitted to assert a claim against the United States for improper operations which allegedly violated the decree, it does not logically follow that the United States has a reciprocal right to raise a claim against a state for violating the Compact in this case.

WHETHER THE UNITED STATES IS A THIRD-PARTY BENEFICIARY

In the alternative, the United States maintains that it can bring a claim under the Compact as a third-party beneficiary. The United States argues that because the Compact is a contract, the Compact created a duty in the promisors to any intended beneficiary to abide by the Compact and the intended beneficiary may enforce that duty. The United States asserts that to prove that it is third-party beneficiary of the Compact, it must demonstrate that the parties to the Compact explicitly or implicitly intended to directly benefit the United States. As evidence that the Compact intended to directly benefit the United States, the United States claims that a federal representative advocated for the United States’ interests in Compact negotiations, and that Article XVI of the Compact was included to expressly protect the United States’ treaty obligations to Mexico.

Colorado agrees that the United States must show that the parties to the Compact intended to directly benefit the Unites States for the United States to be a third-party beneficiary of the Compact, but that the United States has failed to do so. Colorado asserts that the parties to the Compact only intended to directly benefit the compacting States by equitably apportioning the waters of the Rio Grande River among them, and notes that the United States was not apportioned any water by the Compact.

New Mexico contends that obtaining third-party beneficiary status is an “exceptional privilege,” which the United States does not justify receiving in this case. New Mexico argues that the Compact does not reflect any implied or express intention to benefit the United States; in fact, the Compact explicitly states that it will not alter or affect the United States’ preexisting obligations. Furthermore, New Mexico claims that the United States has failed to cite a single case where the Court held that the United States was a third-party beneficiary to an interstate compact.