Ryke Longest is a clinical professor at Duke University School of Law and Nicholas School of the Environment. He teaches water resources law and directs the Duke Environmental Law and Policy Clinic.

On January 8, the Supreme Court will hear an original jurisdiction dispute among three states that 1024px-Elephant_butte_dike share interests in the flows of the Rio Grande/Rio Bravo del Norte: Texas, Colorado and New Mexico. The congressionally approved Rio Grande Compact of 1938 apportioned water rights among these states. In 2014, the Supreme Court granted Texas’ motion for leave to file a complaint and the court’s appointed special master, A. Gregory Grimsal, has been working through preliminary matters since then. The United States filed a complaint in intervention against New Mexico as well. The upcoming argument focuses on the first interim report by the special master, which considered a motion to dismiss filed by New Mexico against the state of Texas and the United States and motions to intervene filed by an irrigation district and a water improvement district. On October 10, 2017, the court denied New Mexico’s motion to dismiss Texas’ complaint and denied the intervention motions by the two local water entities. The exception of the United States and the first exception of Colorado to the first interim report of the special master were set for oral argument, and those matters will be before the court on Monday, January 8, as part of an interstate-apportionment double header.

The Rio Grande River in the 20th century

The Rio Grande forms the 1250-mile international boundary between the United States and Mexico, established primarily as a result of the Treaty of Guadalupe Hidalgo. In the United States, the river begins as a stream in Colorado and winds southward approximately 400 miles across New Mexico and into Texas. In New Mexico, the river is dammed at Elephant Butte, near the city of Truth or Consequences. The Rio Grande Project, authorized by Congress in 1905, is administered by the United States Bureau of Reclamation and brings the federal government directly into aspects of the dispute between Texas and New Mexico. Texas, Colorado and New Mexico negotiated a compact that sought to resolve their disputes over water rights in the Rio Grande; the compact was ratified by Congress in 1939. The compact is administered by the Rio Grande Compact Commission, which includes representatives from each state. These representatives often disagree on questions of accounting for water allocation among the states under the compact. For example, see the Rio Grande Compact Commission Report of 2015.

Here is the report alluded to above:  Download 2015_RGCC_Final_Report

Original jurisdiction complaints over compact and Rio Grande Project

Texas alleged in its complaint that New Mexico has violated the 1938 compact because officers, agents and political subdivisions of New Mexico have allowed diversions of surface water from the basin and pumping of groundwater, which is hydrologically connected to the Rio Grande downstream of Elephant Butte reservoir. New Mexico argues that the compact does not require it to prevent development downstream of Elephant Butte. New Mexico claims that the case should be dismissed because there is no allegation that it has violated its duty with respect to water delivery to Elephant Butte reservoir, saying that “[i]n sum, New Mexico’s duty under the Compact is to deliver water to Elephant Butte.” The United States opposed New Mexico’s motion to dismiss. The special master recommended that the Supreme Court deny the motion to dismiss, which it did in October.

Ahh...groundwater rears its ugly head!

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Both Lara and Ryke will be providing follow-up comments after the SCOTUS hearing....


Only one quiote will work today...

"Every calculation, based on experience elsewhere, fails in New Mexico." -- former Territorial Governor Lew Wallace in a letter to his wife, 1878