0:00

next in Case 141 on

0:02

the original docket, Texas against New

0:05

Mexico and Colorado. Mr. Lew. Mr.

0:07

Chief Justice, and may it please the Court, a

0:10

consent decree requires consent.

0:14

The proposed consent decree in this

0:16

case, however, would dispose of the

0:18

United States' claims without its consent.

0:20

The decree would impose obligations on

0:22

the United States without its

0:24

consent. And the decree would bind the

0:26

United States to an interpretation of the

0:29

Rio Grande Compact that is contrary

0:31

to the Compact itself. For

0:33

each of those reasons, the proposed decree

0:35

should be rejected. I want

0:38

to emphasize why the United States is

0:40

here today. The Compact apportions

0:42

the water below Elephant Butte.

0:44

The Compact does so by

0:46

incorporating and protecting the delivery

0:48

of water by the Rio

0:50

Grande Project to Mexico and

0:52

to two irrigation districts, one in

0:55

New Mexico and the other in

0:57

Texas. The United States

0:59

intervened in this case to enforce

1:01

the Compact's protection of the project.

1:04

As New Mexico acknowledges, the Compact imposes

1:07

on New Mexico a duty

1:09

not to interfere with the

1:11

project's delivery of water. The United States

1:13

claims that New Mexico is violating that

1:15

duty by allowing too much

1:17

groundwater pumping. Six years

1:19

ago, this Court upheld the

1:21

United States' right to pursue

1:24

those Compact claims, recognizing that

1:26

the United States has distinctively

1:28

federal interests in protecting the

1:30

supply and the allocation of

1:32

project water. Those distinctively federal

1:34

interests are why the United

1:36

States is still here today.

1:38

In the United States' view,

1:40

the proposed decree fails to

1:42

address the groundwater

1:45

pumping that precipitated this suit

1:47

in the first place. Instead,

1:49

the proposed decree would allow

1:51

that pumping to continue at

1:53

unsustainable levels, and it would

1:55

not stop that pumping from taking

1:58

water from the project's beneficiaries. namely

2:00

the two irrigation districts and

2:02

Mexico. The proposed decree would

2:04

thus fail to protect the

2:06

project or the compact's apportionment,

2:08

and that is why the

2:10

United States could not give

2:12

its consent to this proposed

2:15

decree. I welcome the court's

2:17

claim. Mr. Lew, does the

2:19

United States have a

2:21

claim that's independent of the states? Of

2:24

course we do, Justice Thomas. What is that claim?

2:27

That's the claim that we've brought since the

2:29

beginning of this case. It's the claim that

2:31

this court held in 2018 is

2:34

a claim that's backed by distinctively

2:36

federal interest. It's a claim that

2:38

says New Mexico is violating its

2:40

delivery obligation under the compact. Is

2:42

that a claim that we would

2:44

normally look at in an original

2:47

action, or is

2:49

that a claim that could be vindicated in

2:52

another forum? It's not a claim that can

2:54

be vindicated in another forum. I think

2:56

it's actually a perfect fit for this

2:58

court's original jurisdiction, because it is a

3:01

claim arising under an interstate commerce that

3:03

we have brought against another sovereign state.

3:05

That's precisely the sort of disputes that

3:08

I think this court has long held.

3:10

Is it appropriate for this court to

3:12

arise, to exercise original jurisdiction

3:15

over? You're

3:17

an intervener, the U.S. is an intervener,

3:19

right? Correct. When you

3:22

intervened, I thought our understanding was

3:24

that your interest was

3:28

consistent with

3:31

that of the state of Texas. Yes,

3:34

and to be clear, our

3:36

underlying claims are exactly

3:38

the same as they were. Well, but Texas

3:40

and New Mexico, and it's rare that we

3:43

have the states who actually agree on anything,

3:46

but Texas and New Mexico have

3:48

agreed. So if your

3:50

interest is the same as Texas's

3:52

interest, then why are you

3:54

still here? No, I want to distinguish between

3:56

two things. Our claims are the same. The

3:58

claims are the same. our interests have

4:00

always been different. I mean, that was the point

4:03

of the 2018 decision. If

4:05

our interests were the same, then,

4:07

you know, that's basically what the state said six

4:09

years ago. The United States has the same interests,

4:11

so just let them remain as anarchists in this

4:13

case supporting Texas. Dr. Sulliff, I might just follow

4:16

up on that. You're invoking the

4:18

2018 decision. As

4:21

I recall it, and I pulled it up

4:23

because it didn't quite match what I thought

4:25

I heard you say, we said that this

4:28

case does not present the question whether

4:30

the United States could initiate litigation to force

4:32

a state to perform its

4:34

obligations under the compact or expand the

4:38

scope of an existing controversy between

4:41

the states. We emphasize that

4:43

it is certain its compact claims seeking

4:47

substantially the same relief

4:49

as Texas's without Texas's injection.

4:53

That's no longer true. None

4:57

of that's true anymore. Well, I

4:59

would respectfully disagree, Justice Gorsuch. I

5:01

think we are pursuing the same

5:05

... seeking substantially the same relief as Texas, and how

5:07

come they're on the other side? Well, I think if

5:09

you look at the operative complaints in this case, the

5:12

relief we're seeking here is the same as

5:14

the relief that Texas is seeking. What's changed

5:16

since the 2018 decision

5:19

isn't a change in the nature of the claim.

5:21

Our claims, Texas and the United

5:23

States are still pursuing the same

5:25

claims. What's changed is a difference

5:27

in litigating position. I don't

5:29

read the court's paragraph, that passage you

5:32

just read, Justice Gorsuch, suggesting

5:34

that after having let the United States in

5:36

the case, that the court was going to

5:38

continue policing ... I've got to say, you're

5:40

making me regret that decision. Well,

5:43

no, Justice Gorsuch, I

5:45

read that paragraph

5:47

as standing for the ... The representation we

5:49

had in 2018 was, we're

5:52

just here because we help enforce the

5:54

compact. Yes. And we have

5:56

to administer the compact, and we

5:58

are completely aligned with Texas. And

6:01

that made sense. But

6:03

you didn't have, you're

6:05

not a party in the sense that you

6:07

have some interest here other than administering

6:11

the compact. And at

6:13

the end of the day, it's a compact between

6:15

states that were adjudicating here in

6:17

an original action, right? Yeah,

6:19

just two quick responses. I

6:21

think back in 2018, the

6:23

representation before this court was

6:26

that the party's litigating

6:29

positions may well diverge as the case

6:31

goes on, precisely because the United States

6:33

has different interests than Texas. That's what

6:35

New Mexico told the court, what Colorado

6:38

did, what the United States told the

6:40

court. And we've reiterated it at oral

6:42

argument that the interests were different. But

6:44

Clay, we had denied you intervention, okay?

6:49

You wouldn't have been a party to litigation. Do

6:52

you agree that your water deliveries under

6:55

the compact, you'd have to make them

6:57

pursuant to the consent decree? If

7:00

we hadn't intervened, no. I

7:02

mean, I think even if we weren't- The compact would bind

7:04

you, wouldn't it? Even if we

7:07

were not a party, a consent

7:09

decree cannot bind any third party, whether

7:11

they're a formal party to the case

7:13

or not. And that's just- Well, you'd

7:15

have your litigating, you'd have the opportunity

7:18

to litigate that in federal court, federal

7:20

district court, those claims, your arguments. But

7:22

otherwise, the compact is the

7:24

compact, right? Yeah, I don't. Justice Gorsuch,

7:26

I don't think that- And under the

7:29

Reclamation Act, your responsibility is to administer

7:31

the compact. That's

7:34

correct. Under Reclamation Law, we have

7:36

contracts with the two irrigation districts

7:39

that are at issue in this

7:41

case. And the problem with this

7:43

consent decree is that it

7:45

would impose obligations on us that are

7:48

actually contrary to those downstream contracts. And

7:50

so when this court said in 2018

7:53

that the compact implicitly incorporates, can

7:55

be thought to implicitly incorporate the

7:58

downstream contracts, That's

8:01

a real problem, that the consent decree

8:03

is... Do you agree that the Reclamation

8:05

Act requires you to follow state water

8:07

law unless there's a clear congressional directive

8:09

to the contrary? That

8:12

is correct, but I will

8:14

say this. This consent decree

8:16

is not state water law. This consent

8:18

decree is an agreement between two states

8:21

that they wish to have embodied in

8:23

a federal judgment. Section

8:25

8 of the Reclamation Act has nothing

8:28

to say about whether this consent

8:30

decree can be imposed on the United States.

8:33

Mr. Liu, I think I need more facts

8:35

to really know what to make of

8:37

this case. You're here,

8:39

the two water districts that get

8:41

water from this compact are

8:44

still on the United States' side. Correct.

8:47

But Texas has given up the ghost, if you

8:49

will. Why? What

8:52

has happened? Right. The

8:54

fact that these different entities have

8:56

diverged. Right. And what

8:58

do you still want, the Texas has decided,

9:01

is unnecessary. Right. So here's what

9:04

we want. We

9:06

want the same thing we wanted in 2018

9:08

when this court approved our claim.

9:11

So the easiest way to understand this is

9:13

to break down the alma mater of our

9:15

claim, duty, breach, remedy. With

9:18

respect to duty, we want the

9:21

court to recognize that New Mexico has

9:23

a duty of non-interference with respect to

9:25

the project. The problem with this consent

9:27

decree is that instead of recognizing that

9:29

duty of non-interference, it gives the states

9:31

a right to interfere with the project

9:34

by forcing water transfer. Do you want

9:36

the 1938 baseline? We

9:38

do. And that goes to the

9:41

second element of breach. We came in, we,

9:43

since this course 2018

9:46

decision, have litigated alongside

9:48

Texas, all the way partway through a

9:50

trial, that the right baseline against which

9:52

to measure New Mexico's interference was a

9:54

1938 baseline. And do you want this

9:56

why? Because you think what will happen?

9:59

Are your treaty? obligations at

10:01

stake? Are you just

10:03

fearful that the water districts won't have

10:05

the water that they need? What's

10:08

the thought here? And again,

10:10

what's your understanding of why

10:12

you and Texas diverge? Yes, it's

10:15

our concerns here go to both the

10:17

supply of project water and its allocation.

10:19

We are concerned that the groundwater pumping

10:22

is occurring at unsustainable levels, which will

10:24

have a devastating effect over the long

10:26

term on the supply of project water,

10:28

and that will mean down the road

10:31

that we might not have enough water

10:33

to meet irrigation demands in the districts

10:35

and in Mexico. We're also concerned about

10:37

the allocation of water, and by that

10:40

I mean the allocation is currently

10:42

accomplished through the downstream contracts that

10:44

the government has entered into and

10:46

the treaty with Mexico. What this

10:49

consent decree does is replace that

10:51

division of water with the division

10:53

of the state's own making. As

10:55

to why Texas has basically capitulated

10:57

its position in this case, it

10:59

was everyone agreed in its complaint.

11:01

It was looking for a 1938

11:03

baseline when it filed

11:05

the complaint in 2013. Why is it now given

11:07

that up? Frankly, to the

11:09

United States, it is inexplicable, but I think

11:11

it only highlights the importance of the

11:13

government's intervention in this law. Well, if

11:16

it's inexplicable, how long, how

11:18

much water has the federal government misallocated over

11:20

the last 40 years? It hasn't

11:22

used the 1938 baseline in

11:25

decades. The allocation

11:27

of the water in the last

11:30

40 years has been pursuant to

11:32

an operating agreement, but I think

11:34

it's important to understand what that

11:36

operating agreement addresses. That operating agreement

11:38

doesn't address whether New Mexico is

11:41

complying with the compact. New Mexico isn't

11:43

even a party to the operating agreement.

11:45

It wasn't even in the room when

11:47

the operating agreement was consummated. Who in

11:50

concrete terms is being hurt by

11:52

this agreement? Which

11:56

entities here or abroad object

11:59

to it? Well, we

12:02

have entities right here in this court,

12:04

the two irrigation districts. And they're in

12:06

Texas, right? No, one is in New

12:08

Mexico and one is in Texas. All

12:10

right. And so they

12:12

are, do you think they have

12:15

a right to a certain interest that's inconsistent

12:18

with that that's asserted by their

12:20

states? They do, with

12:23

respect to their relationship to the federal

12:25

government. This court has long recognized that

12:27

the parents' patriae principle extends only to

12:30

the state's representation of their own citizens

12:32

with respect to state. So that's what's

12:34

involved? Is that what's involved? New

12:36

Mexico and Texas are not treating

12:40

these particular districts fairly? I

12:43

think that's part of the problem. What else is,

12:45

what's the rest of the problem? The other part

12:47

of the problem is that the level of groundwater

12:50

pumping at the D2 level is in our view

12:52

unsustainable in the long term. And

12:55

so the long term viability

12:57

of the project itself is at risk.

12:59

I mean, when we talk about the

13:01

districts, I

13:03

want to spell out why we think they're

13:05

being treated unfairly. I mean, the Reclamation Act

13:08

of 1902 reflects a basic

13:10

bargain between reclamation and irrigation

13:13

districts. On the United

13:15

States end of the bargain, we promise

13:17

to build the major infrastructure, the dams

13:20

and the reservoirs, and to deliver water

13:22

to meet irrigation needs in the district.

13:24

On the other end of the bargain,

13:26

the districts agreed to pay construction, operation

13:28

and maintenance costs to defray the costs

13:31

that the United States invested into

13:33

the project. And what this consent

13:35

decree does is just undermine that

13:37

bargain. Because what happens under

13:40

the consent decree is that the district

13:42

in New Mexico bears the brunt

13:44

of any continued or increased pumping in

13:46

New Mexico. What happens under the decree

13:49

is if groundwater pumping remains

13:51

the same or goes up, what

13:53

New Mexico can choose to do

13:55

is to force the United States

13:57

to transfer water from the New

13:59

Mexico. district to Texas. And so

14:01

what happens is the one district

14:04

in New Mexico that actually has a

14:06

contract with the United States that has

14:08

paid millions of dollars in construction charges

14:10

and continues to pay hundreds of thousands

14:12

of dollars each year in operation and

14:14

maintenance, they bear

14:16

the brunt of groundwater pumping. The one that

14:18

I don't have to give up their water.

14:22

I've been a little bit confused

14:25

by this case because

14:27

starting with Justice Gorsuch's

14:29

question. I

14:32

thought I remembered and I now have a

14:34

copy of the appendix. I think it's to

14:37

your exception. On

14:40

page 27A, compacts

14:43

are agreements by the states,

14:46

but they have to be consented to

14:48

by the United States, correct? That's

14:51

right. And to the extent

14:53

that you're arguing that this compact

14:56

has been changed, whether you're right or

14:58

wrong, that will have to be litigated,

15:00

correct? Right. I don't

15:02

know if you're right or wrong, but what you're saying

15:05

is this

15:07

agreement is going to change the

15:09

terms of the consent agreement. After

15:13

a trial, maybe

15:16

we will conclude you're right,

15:21

but what you're saying right now

15:23

is you can't change

15:25

the terms of this agreement without

15:27

us consenting. Correct. It is just

15:29

a basic application of the law

15:31

that's governing consent decrees. And so

15:33

whether your claims or interests are

15:36

the same as Justice Gorsuch or

15:38

not, your claims are the same.

15:40

Our claims are the same. Which

15:42

is that this, well,

15:44

to the extent that

15:46

the consent agreement required certain

15:49

things the

15:51

parties have breached them, by consent the

15:53

parties can't forgive that without

15:57

you saying it's okay. When

16:00

I say you, I don't mean you personally. I

16:04

mean the government and whatever entity. This

16:06

one was signed by the Assistant Secretary

16:08

of the Interior and I

16:10

presume that's whom ...

16:12

I don't know who you represent actually, but you understand

16:15

what I mean. It's the government. Well,

16:17

I think the compact itself was

16:19

ratified by the states, approved by

16:21

Congress, signed by the President. Under

16:24

the compact clause, any

16:26

new compact has to

16:28

go through the same process and under this compact ...

16:31

Has to come to the government to say yes.

16:33

That's correct. Under this

16:35

particular compact itself has a

16:37

provision for amendment which likewise

16:39

requires the consent of Congress.

16:42

It's the consent of Congress, right?

16:44

Not necessarily the Executive Branch. Correct?

16:47

Well, it's the consent of Congress and the

16:49

Executive ... Under the compact clause, the Supreme

16:52

Court would also ... Justice

16:55

Gorsuch's point is that you're

16:57

just adjudicating it. You're not

16:59

the consenting officer

17:02

for the purpose of the compact. Is

17:04

that right or no? Right,

17:07

right. What we're asking for

17:09

in this case is simply

17:11

a right to pursue our claims.

17:14

All right, so let me ask you about

17:17

those claims. What

17:22

claim exactly ... You say our claims are

17:24

the same and our interests are different. The

17:27

claim is New Mexico is doing too much

17:29

in terms of the groundwater. What

17:34

is the source of the different interests?

17:36

It's the contracts, the

17:38

downstream contracts, you say, right?

17:40

That's right. The treaties.

17:44

That's right as well. That's as well. Is

17:46

there anything else? I

17:48

mean, is there federal law? Is it

17:50

the fact that you administer the Reclamation

17:52

Act? Is it that the United States

17:55

is a sovereign? Well, it's for the

17:57

reasons that appear on this course decision

17:59

on pages. 413

18:01

to 415, which is the

18:03

compact is inextricably intertwined with

18:06

the project's delivery of water.

18:09

In fact, it is the project's

18:11

delivery of water that accomplishes the

18:13

compact's apportionment. It is the fact

18:15

that the United States is legally

18:17

responsible for that delivery of water

18:19

under the downstream contracts. Were those

18:21

incorporated into the contract? We said

18:23

as a matter of this

18:26

decision that they are implicitly incorporated,

18:28

right? That's correct. The

18:31

reasoning behind that I think is pretty straightforward.

18:34

The project predated the

18:36

compact. The project was already

18:38

in existence. One of

18:40

the fundamental purposes of the compact, and

18:43

this is repeated at least three times

18:45

in Texas' own complaint, one of the

18:47

fundamental purposes of the compact was to

18:49

protect the project, to make sure that

18:52

the project had a sufficient supply of

18:54

water to fulfill the United States

18:56

obligations under the contract and the

18:59

treaty. Again, it would have

19:01

been strange for Congress and

19:03

the President to approve a

19:05

compact that failed to

19:09

respect the obligations that the United States

19:11

already had or put them at risk.

19:14

Can I just shift you really quickly because one

19:16

of your arguments is disposing of the claims. The

19:19

other is the impermissible imposition of duties

19:23

on the United States. You mentioned

19:25

at one point that under this consent

19:27

decree, the United States would have to

19:29

do certain things. Can

19:32

you just say more about what those things are because

19:34

I think part of their argument is that there really

19:37

is no change in the status of the United States.

19:39

All the changes go to the heart

19:42

of the project's operations. I

19:44

would first point you to the provisions of

19:46

the consent decree. This is at the addendum

19:48

to the third report, pages 12 to 17,

19:51

that would allow

19:53

the states to force the

19:55

United States to transfer water

19:57

from one district to

19:59

another. at the state's direction.

20:02

That's already happening to some degree, but you're saying

20:04

it's going to be different if the consent decree

20:06

goes on. It's going to be different in the

20:08

important sense that we are doing, we are allocating

20:12

water on a consensual basis

20:14

between the United States and the

20:16

two districts, as we always have

20:18

since 1906. That's the meaning of

20:21

a contract, on a consensual basis. What

20:25

this would do is force

20:28

the United States to transfer water

20:30

at certain times and places. That

20:32

just flips the project

20:34

and the compact on their

20:36

head, because the original

20:39

design of both was that the

20:41

determinants of how the allocation works

20:43

would be the United States and

20:45

the districts. Now what determines the

20:47

allocation is what the states tell

20:49

us the allocation should be. Is

20:52

there another forum in which you can raise these arguments and get the remedy

20:54

that you're seeking?

21:02

There's not. To think about

21:04

it in terms of sources of

21:06

substantive law, as far as seeking

21:09

the same relief under the compact,

21:12

we don't read the consent decree and

21:14

no one else reads the consent decree

21:16

as allowing us to bring any compact

21:18

claims that would call into question the

21:20

validity of the decree. We

21:22

would be stuck with the decree's view

21:26

of what is compliant with the

21:28

compact. That would be preclusive on

21:30

the question of what the compact

21:32

requires. Exactly. I mean, the

21:34

state's own reply in this court says

21:36

the consent decree will be, quote, part

21:39

of the consolation of laws that the

21:41

United States will follow. I think that

21:43

means that we have to treat the

21:45

consent decree as if it were the

21:47

compact itself. Now, thinking about

21:49

other sources of law, there's state law,

21:51

there's reclamation law, I don't think either

21:53

of those bodies of law is going to

21:55

somehow compensate for the loss of our compalt

21:58

claims. Those are

22:00

claims not brought against New Mexico,

22:02

but against individual water users. They

22:05

are claims that hinge on a definition

22:07

of project water. For example, under state

22:09

law, I suppose we'd be in the

22:12

position of arguing that project water has

22:14

a certain definition that includes the water

22:16

that's being taken away. My

22:19

guess is that if we were to

22:21

try to litigate that in state court,

22:23

the response from the other side would

22:25

be, well, given that the compact doesn't

22:27

protect that water under the consent decree,

22:29

it's not really your water. We

22:33

wouldn't have any basis for the state law,

22:35

the reclamation law claims. Those claims rest on

22:39

a concept of project water that

22:41

would be undermined if we're stuck

22:43

with what the consent decree

22:45

says. Mr.

22:48

Thomas? Mr.

22:51

Lew, if we had

22:55

not gone along with the United

22:57

States in your efforts to

22:59

intervene in this, would you be

23:01

able to vindicate those rights that

23:04

you're talking about? Because I don't

23:06

remember the argument

23:08

you're making now, a sort

23:10

of apocalyptic argument being

23:13

made in 2018. No,

23:17

I don't think those interests

23:20

could be vindicated elsewhere for the reasons I

23:23

gave Justice Kagan. I don't think the

23:26

condition of this, I don't

23:28

think what I've presented here is

23:30

apocalyptic. It is simply a reflection

23:32

of paragraph 14 of the United

23:34

States' original complaint in this case,

23:37

which lays out the fairly simple

23:39

chain of causation that goes from

23:41

groundwater being taken out of the

23:43

ground leading to less water in

23:45

project stores, leading to less water

23:47

for the beneficiaries of the project.

23:50

Well, and my

23:52

memory could be somewhat vague on this,

23:56

I thought that much of your

23:59

argument for was that

24:01

you were on the same

24:03

page as Texas. And

24:06

it seems like there's a

24:08

divergence of interests now.

24:11

Well, there was always diversion interests.

24:13

I mean, the parties themselves, we

24:16

did New Mexico, Colorado, pointed out that

24:18

even though we were pursuing

24:20

the same claims, we were doing

24:22

so for different interests. In fact,

24:24

the argument was, if

24:27

we're just pursuing the same claims for the

24:29

same interests, we should just be

24:31

left to be amicus in this case. And whatever Texas

24:33

decides to do with its claims, we

24:36

would then be stuck with just tagging along as

24:38

amicus. But I understood the point of the court's

24:40

decision to be, and this is on page 413,

24:43

that the United States has distinctively federal

24:45

interests, not interests that are merely derivative

24:47

of Texas's. And I think in this

24:50

case, we kind of have run a

24:52

natural experiment of what happens when the

24:54

United States interests are cut out of

24:56

the picture. The results are not good.

24:58

The result is a consent decree that

25:00

really does nothing to protect the project,

25:02

that does not recognize a duty of

25:05

non-interference with respect to the

25:07

project, that does not reflect the baseline level of

25:09

protection that existed for the project in 1938. And

25:12

then instead of imposing an injunction on

25:15

New Mexico to bring itself into

25:18

compliance with the compact, actually requires

25:20

and orders the United States to

25:23

transfer water to accomplish the

25:25

decrees. You mentioned the baseline. Which

25:27

baseline's being used now? The

25:30

baseline, there is no compact

25:32

baseline that the parties

25:34

have agreed on now. There is an

25:36

operating agreement that the United States uses.

25:38

Yes, so what is that? Is that

25:40

D2? That is a D2

25:43

baseline, but I wanna emphasize what

25:45

that D2 baseline reflects. It reflects

25:47

the United States and the two

25:49

districts getting together and saying to

25:51

each other, given the existing level

25:54

of interference in New Mexico, how

25:56

do we divide up the rest

25:58

of the water? So that

26:00

agreement simply takes the world

26:03

as it exists. And how long have

26:05

you been taking the world as it

26:07

exists? Well, the operating agreement itself has

26:09

been enforced since 2000. No,

26:11

I mean the D2 baseline. The

26:14

D2 baseline, we've probably

26:16

since the 1980s, I think the 1980s is the right reference

26:20

point. So about 40 years. So

26:25

basically adopting the D2

26:27

baseline is not a change from what

26:29

you're doing now. Well,

26:31

it is a change. Even according to

26:33

the state's own briefs and their own

26:36

experts, because they're not saying keep in

26:38

place your D2 equation. They're

26:40

saying, and this is at the addendum page

26:42

44, you need to adopt a modified D2

26:44

equation. And that

26:47

equation is going to require, if

26:49

we have to modify the equation,

26:51

it's going to change the operations

26:53

of the project. Not just numbers

26:55

on some spreadsheet, but when we

26:57

actually raise the gates at Elephant

26:59

Butte Reservoir to let water through,

27:01

at Cabiode Dam, for

27:04

how long we let that water through.

27:07

So these changes go

27:10

to the very heart of

27:12

the downstream contracts that we've had

27:14

for more than a century with

27:16

the two districts. Just

27:23

to be, I'm clear in my mind. In

27:27

2018, Texas

27:29

was articulating the same

27:34

claims as you. You

27:36

could not anticipate that they

27:39

would abandon you in

27:41

the middle of this litigation. You did

27:44

anticipate, that's why you wanted to intervene,

27:46

that there were distinct federal interests that

27:48

needed to be protected. And

27:51

those interests remain the same. Your

27:56

Claims were based on those interests, and those

27:59

haven't been litigated. It is here, but they're

28:01

being settled by the states. They're being settled

28:03

by the state Are. Ski.

28:06

Discourses, Mr.

28:09

Lu against concern. You know

28:11

at bottom is this that

28:14

original jurisdiction is set for

28:16

litigation between states. That's what's

28:18

That's what Our charges from

28:21

article free and. We

28:24

have authentic their consent decree

28:27

between two states. They agree.

28:29

The special Masters found that

28:31

that agreements. And

28:36

doesn't purport to settle any claims

28:38

that the Federal government might have

28:40

sacked. says those are just not

28:42

for this case dismissed without prejudice

28:45

to being pursued in another form.

28:48

To now say that the Federal government

28:50

has independently getting authority in the cases

28:53

that are supposed to be between two

28:55

states. And that not resolve

28:57

the Federal government's interest seems to me

28:59

a dramatic expansion of his courts original

29:02

first diction, not just in this case,

29:04

but potentially with random. Why

29:08

think those concerns can be cast out

29:10

at this point initial gate keeping states

29:13

Just so. In other words, those concerns

29:15

can be cashed out when the court

29:17

ah takes up the issue whether the

29:19

United States can intervene and pretty litter

29:22

cigarette in Hawaii. Made me regret that

29:24

because the representation and was were fully

29:26

aligned with one of the states here

29:28

and we can add material value and

29:31

the understanding of the case. I guess

29:33

that I do sort of still. One

29:36

just cannot understand. Decided Now you're

29:38

saying you have independent claims that

29:40

you want to pursue Independent any

29:43

state. And there's now an original

29:45

jurisdictions about. Yeah

29:47

I think this I think the

29:49

court well understood and twenty and

29:52

seen that a possible consequences as

29:54

decision was that the States and

29:56

the United States. Than.

29:58

physicians my someday diverge.

30:00

And you're asking us to say

30:03

that two states cannot resolve their

30:05

disagreement in this court consistent

30:08

with the compact, so long as the United

30:10

States objects. That's the upshot of what we're

30:12

being asked to enforce. I don't think that's

30:14

quite right because the United States is not

30:16

standing in the way of the states settling

30:19

their own claims. Well, they can settle their

30:21

own claims so long as they do so

30:23

consistent with the laws that govern consent agreement.

30:25

With the federal government's views, right? No,

30:27

I think this is just- They can't settle their own

30:29

claims anymore. I think they could.

30:32

And we gave an example in our briefs.

30:34

Texas, for example, could agree to

30:37

dismiss its claims. In return, New

30:39

Mexico could agree to either curtail

30:41

the groundwater pumping or offset it.

30:43

And if you look at the

30:45

the declaration by Hammond

30:47

in the record,

30:49

it lists a host of ways that

30:51

New Mexico could offset

30:53

the amount of groundwater pumping. And that

30:56

sort of agreement, which is simply

30:58

an agreement by New Mexico that says we're

31:00

going to take care of groundwater pumping, doesn't

31:02

dispose of the United States claims in this

31:04

case or impose any obligations on the United

31:06

States. It's just one you prefer rather than

31:08

the one that parties prefer. Well,

31:11

I think if we're thinking about who

31:13

is imposing on who in this case,

31:16

it's not the United States imposing on the

31:18

states. It's actually the states imposing on us.

31:21

And that's because we're leaving the states free to do

31:23

what they want. They're the ones who are bringing us

31:26

into this by saying, we're

31:28

not just withdrawing from the litigation.

31:31

We're taking you with us and

31:33

on the way out, we're going to impose a

31:35

host of obligations on you. Thank

31:38

you. Justice Campbell? Justice Barrett? Justice

31:41

Jackson? Just picking up where Justice

31:44

Gorsuch left off, I guess I had not

31:46

understood that all consent degrees are necessarily

31:49

proper just because the parties agree to

31:51

them. I thought in our firefighters case,

31:54

there were some limits that you can't have

31:58

a consent decree that is of

32:00

interveners claims without their consent. So

32:02

am I misreading that? No,

32:05

I think it's clear as day. Is

32:07

that what you're relying on in

32:10

response to the notion that

32:12

just because the states agree, you know,

32:15

the United States shouldn't be allowed to object or

32:18

that we have to necessarily

32:20

approve this consent? Yes,

32:23

that's right, Justice Jackson. Thank

32:25

you. Thank you, counsel. Ms.

32:29

Pettit? Thank you, Mr. Chief Justice,

32:31

and may it please the Court. No

32:33

one disputes that the Rio Grande Compact

32:35

divides the river's waters 57% to

32:37

New Mexico and 43% to Texas. But

32:42

neither the Compact nor the downstream

32:44

contracts specify percent of what. The

32:47

river as it existed in 1938, during

32:50

the so-called D2 period, or something

32:52

else entirely. This Court

32:54

has repeatedly admonished states to

32:57

figure out such issues amongst

32:59

themselves because, and I'm quoting from

33:01

a different Texas against New Mexico, they

33:03

are more likely to be wisely solved

33:05

through cooperative study than in any

33:08

court, however constituted. We

33:10

heard you, we listened, and

33:12

we complied. None

33:14

of the three reasons the United

33:17

States insist require Texas and New

33:19

Mexico to nonetheless continue litigating holds

33:21

water. Their objection

33:24

that the Compact, that

33:27

the consent decree violates

33:29

the Compact ignores that this Court

33:31

has encouraged states to clarify technical

33:33

issues such as the baseline condition

33:35

and accept that solution so long

33:38

as it is reasonable and does

33:40

not contradict the Compact's express terms.

33:43

We know the decree easily meets that

33:45

standard because it merely tweaks a methodology

33:47

the United States developed in the late

33:49

1970s. Their

33:52

next objection collapses into the first

33:54

because it is the Compact that

33:56

requires the United States to deliver

33:58

an accountable decision. account for Texas's

34:00

water, the decree merely allows

34:03

the arrival of that water to be

34:05

measured with greater precision. Finally,

34:07

and if this is the objection that is in

34:09

the focus today, their claims

34:12

objection would transform this entire lawsuit

34:14

from one about how much water

34:16

the compact guarantees Texas to what

34:19

New Mexico will do to meet

34:21

that guarantee. Such

34:23

disputes are not yet ripe, and

34:26

more fundamentally, as Justice Gorsuch

34:28

noted, under the reclamation act

34:30

of 1902, they present

34:32

complex issues of New Mexico State

34:34

law that neither interests Texas nor

34:37

belong in the first instance in this court. I

34:39

welcome the court's questions. Do

34:42

we review consent decrees and

34:44

original actions different from consent

34:46

decrees in other cases? I

34:50

believe that's an open question, Your Honor, in

34:52

the original jurisdiction context. But

34:54

it does make sense because this court

34:56

has said very specifically that

34:59

its jurisdiction is narrow, that one

35:01

would consider, as the special master

35:03

did, whether, for example, the obligations

35:06

or the type of obligations that

35:08

would justify keeping a case in this

35:10

court over the objection of the original state.

35:14

The special master seemed

35:16

to have

35:18

a different view of where

35:21

the U.S. could vindicate its

35:24

rights. It indicated that the

35:26

U.S. could use another forum

35:28

to do that. Do

35:31

you have a view on that? We agree

35:33

with the special master that they can

35:35

and should vindicate their current claims in

35:38

New Mexico State or federal court. Well,

35:42

what do you say to what Mr. Lew just

35:44

said? Mr. Lew said this is going to

35:46

be preclusive as to what the compact

35:48

means, what it requires, and

35:50

there's no other way, no other body

35:52

of law that's going to be able to get

35:54

around that. So you effectively

35:57

are precluding the government's position in this

35:59

case. It won't be preclusive in

36:01

the sense of claim preclusion. It will resolve

36:03

a single question, which is that the

36:05

baseline against which the compact is judged.

36:07

And we do agree that that would

36:10

be binding on the United States. However,

36:12

I would point this Court to its

36:14

1935 decision in Nebraska against Wyoming, which

36:16

contrary to what my friend in the

36:18

United States said, treats the

36:20

United States as equivalent to all

36:22

other appropriators for that purpose. The

36:25

compact agreement is binding

36:27

on them as a force of

36:29

Congress's choice, and starting from the

36:31

19th century, that the federal law

36:33

will defer to state law in

36:36

this unique circle. I'm sorry, but

36:38

there's been no adjudication. There's

36:40

a consent decree that fixes

36:42

an answer, and you're saying the government

36:45

disbound by that answer. It's

36:48

different if they were permitted, as they're

36:50

asking, to litigate that question, and they

36:52

lose it. Well, they've lost it. They're

36:55

bound to that now. But

36:57

you're saying something different. You're saying

36:59

the compact settles that question, they're

37:01

stuck with it. Yes,

37:03

Your Honor. Isn't that you've given your whole

37:06

case away? No, Your Honor. The

37:08

Nebraska case was also settled, and the

37:10

Court did not even allow the particular

37:13

complaint, the particular opinion I was citing,

37:15

was actually an opinion saying that the

37:17

United States was not even a necessary

37:19

party, because under Congress's choice that they

37:22

would be bound by state law. I

37:24

think there are compacts, and then again,

37:26

there are compacts. There are

37:28

compacts that really do involve only the states,

37:31

and don't have distinctively federal interests

37:33

attached to them. This

37:35

compact is not that. For

37:38

all the reasons we gave six

37:40

years ago, first, the compact is

37:43

inextricably intertwined with the Rio Grande

37:45

Project and the downstream contracts, which

37:47

of course are federal in nature.

37:50

Second, the United States plays an integral

37:52

role in the compact's operation. Third,

37:55

a breach of the compact could

37:57

jeopardize the federal government's ability to

37:59

satisfy satisfy its treaty obligations. So

38:01

this is a compact that really the

38:03

federal government is right in the mix

38:06

of. And that's why we

38:08

allow the federal government to participate. Your

38:11

Honor, I would agree that there is a spectrum of

38:13

compacts, but this is not on the far end of

38:15

it. In fact, the United States is an actual

38:17

party to the Delaware River compact

38:20

for precisely that concern. This falls more

38:22

in the middle. And as in

38:25

the Michael Sullivan Declaration, I believe, gives

38:27

examples all over the

38:30

West about areas where

38:32

compacts use reclamation projects

38:34

and the ways contemplated here. And

38:37

it would be no different. Well, whether this is

38:39

on the extreme end or not, what I'm suggesting

38:41

is that federal interests are

38:44

just inextricably bound up in

38:46

the operation and the

38:50

rules respecting this compact. And for

38:52

you to say you can cut,

38:54

you know, once after we've said

38:57

there are these distinctive federal interests

39:00

and the U.S. gets to participate

39:03

as an intervener for you to cut

39:05

the U.S. out of the picture entirely

39:07

so that the U.S. can't ask

39:10

a court to litigate those what

39:13

it thinks are the right rules.

39:17

I guess I don't see where that authority comes from.

39:21

For the right rules point, I believe

39:23

my friend actually acknowledged that

39:25

whether or not they were an intervener was

39:27

irrelevant to that question. It either complies with

39:29

the compact or it does not. And

39:32

as to their specific claims, and I think

39:34

this really goes to focusing on how their

39:36

claims have actually evolved since 2018. Because in

39:38

2018, they were asserting a

39:42

interference with the treaty and

39:45

an interference with Texas' apportionment.

39:47

Here, the special master

39:49

recognized that there is no evidence about

39:51

the potential interference of the treaty at

39:53

all, in part because this consent decree

39:55

takes it right off the top. The

39:57

treaty is not so as a result

39:59

the treaty is not implicated. Then they're

40:01

saying, well, I'm demanding on behalf of

40:03

Texas more than Texas is

40:05

going to, is demanding for itself. That

40:07

doesn't make a lot of sense. What

40:09

they've really tried to do here is

40:12

they've tried to conflate the project and

40:14

the compact, and

40:16

they are two analytically separate

40:18

things. What they're asserting here is

40:21

an interference with a project in New

40:23

Mexico that is a matter of reclamation

40:25

law and that is typically resolved in

40:27

the lower portion. I mean, you say

40:29

they're two separate things. Six years ago,

40:31

we said they're inextricably intertwined. In

40:34

the sense that the project acted

40:36

as a sort of agent, as I

40:38

believe the words this Court used, but

40:40

not in the sense that every single violation

40:43

of the project or every single potential

40:45

interference with the project rises to the level

40:47

of a compact violation. For example, if there

40:49

were a well in New Mexico that

40:51

was being operated in a way inconsistent with

40:54

the project, that might be a violation under

40:56

the Reclamation Act, but it's not going to

40:58

be a violation of the compact. So they

41:00

can't be, just because one serves

41:02

as the agent of the other doesn't mean that

41:05

they are not analytically distinct. This

41:08

is a theoretical question about

41:10

how it works, and maybe everybody else

41:12

knows. But

41:15

my understanding of how this works is

41:17

you have compacts and the federal interest

41:19

is protected because of the requirement of

41:22

congressional consent. But what

41:24

happens as they go on? And

41:27

you have a consent decree under the compact. But

41:29

at what point does the federal government have

41:31

the authority to step in as they do

41:33

when the compact is originally enacted? In

41:36

that instance, Your Honor, I think it

41:38

would, and I point you to the

41:41

Texas against New Mexico case that I

41:43

originally quoted from 1983, where the Court

41:45

drew the line at where it is

41:47

congressionally ratified powers. And this is to

41:49

where it is a reasonable interpretation as

41:51

opposed to an amendment to the compact.

41:54

And here what we have is a

41:56

reasonable interpretation as to how the project

41:58

is going to, how the The compact

42:00

is going to function on a day-to-day

42:02

basis because the compact doesn't specify it.

42:04

How does the, let's say the Solicitor

42:07

General representing the federal district disagrees with

42:09

the idea that it's a reasonable interpretation.

42:12

Where do they get to have that

42:14

question addressed? This court

42:16

addressed that in Vermont against New York

42:18

where the court said that it is

42:20

not rubber-stamp consent decrees. It has the

42:23

obligation to consider whether or not the

42:25

consent, there's a modification of the compact.

42:27

Here the special master looked at every

42:29

single objection that they have raised and

42:31

determined that it was a reasonable interpretation.

42:33

In part because it is the interpretation

42:36

that, as my friend noted, both the

42:38

United States and the two districts

42:40

have agreed upon since the late 1970s. So

42:43

what happens, the federal government

42:45

says the problem here is they're not going to be

42:47

able to meet their treaty obligations with Mexico. What

42:50

if that happens? Do you have any

42:52

obligations at that point or just tell the United

42:54

States to, so, I

42:57

would like to go to war with Mexico? I

42:59

certainly wouldn't tell the United States to go

43:01

to war with Mexico, Your Honor. I believe

43:03

in those circumstances because their claims that they've

43:05

articulated them today and they have been a

43:07

little fluid is that New

43:10

Mexico is pumping too much water. What

43:12

they would do is bring a Reclamation

43:15

Act claim in New Mexico. And they're

43:17

actually a party to ongoing litigation along

43:19

those lines and the extreme adjudication that

43:21

they've been trying to get out of

43:23

for decades to precisely to determine their

43:25

seniority and whether or not and how they

43:27

were going to protect that. So that would be your

43:29

answer to the question I

43:32

think was asked earlier about what should

43:34

the United States do and you would

43:36

say they should sue New

43:39

Mexico or presumably they'll find you too in,

43:42

not going to be state court but in federal court

43:44

and that would be resolved there? Yes,

43:46

Your Honor. If, can I ask you

43:48

in such an action, wouldn't

43:51

New Mexico point to the consent decree

43:53

and say we're not doing

43:55

the wrong thing because let's say we

43:58

adopt or approve the consent decree, wouldn't

44:00

the defense be, here's the consent decree and

44:03

it tells us how much water we can

44:05

pump? It depends on what

44:07

precisely their allegations are, which is why

44:09

these claims are not yet right. All

44:11

the consent decree does is it specifies

44:13

how much water New Mexico is entitled

44:15

to. The treaty obligation is

44:17

taken out before they ever get to that point.

44:19

But why isn't that the same thing? If

44:21

New Mexico is saying, you know,

44:24

if the federal government's

44:26

claim in the Hypothetical

44:28

Reclamation Act lawsuit

44:31

is that New Mexico is taking too

44:33

much water? And

44:36

New Mexico's response is, no, we're not

44:38

because the consent decree tells us how

44:40

much water we're entitled to. I guess

44:43

I don't understand why that isn't,

44:47

the consent decree

44:49

doesn't impact the United States claims.

44:52

And I think that I would point

44:54

your honor to the explanation that they

44:56

gave the special master in October and

44:58

December of 2022 about what their nature of

45:00

their claims are. And it's really a, it's not

45:03

really a question of New Mexico as

45:05

a whole taking too much water. It's

45:07

particular New Mexicans. So people who are

45:09

not project contract users who are pumping

45:12

when they shouldn't be. That's

45:14

the type of claim that would be appropriate.

45:16

But it can't be because we

45:20

go back to your earlier concession. What

45:23

the, this consent decree

45:25

says is the 1938

45:28

baseline is not

45:31

how you interpret this contract. Whether

45:34

the special master will ultimately disagree

45:36

with their position or not, if

45:40

they are not able to

45:42

litigate that the 1938 baseline

45:44

is what needs to be

45:46

measured, then the pumping

45:48

would be illegal. If

45:50

the baseline has been changed, then

45:53

the pumping is going to be from

45:55

a different baseline. And

45:57

so their reclamation process. Queens

46:00

are being limited c of how

46:02

much they can get is being

46:04

limited by you your honor as

46:06

to responses the first. Is that the

46:08

United States has not actually attempted to

46:10

litigate and Nineteen Thirty Eight Condition in

46:13

this case. In fact, that special Master

46:15

and this is his words, not mine.

46:17

On T Seventy one of the February

46:19

Six, Twenty Twenty Three transcript, I don't

46:21

know how the U S it's mate

46:23

maintaining that with a straight sets the

46:25

code as recently as the Summary Judgment

46:27

motion, baseless Claims and Nineteen Thirty Eight

46:29

baseline. Beyond that. Be type of pumping that.

46:31

That are talking about and the concerns they

46:34

are being are saying and where the reasons

46:36

they raised it was unfair was this

46:38

is that that he be id the district

46:40

in New Mexico with going to bear the

46:43

brunt for people outside of of that area.

46:45

So people. Farther up screams.

46:47

That is the nature of the out of

46:50

the claims they are trying to litigate. Now

46:52

we we'll see. Are still has to get

46:54

up and answer because I spoke. To

46:57

direct your attention to the other objects

47:00

and because on the one hand they

47:02

say part of the reasons this is

47:04

a problem is that you are disposing

47:06

of are clean. I also understood them

47:08

to say you are imposing obligations. So.

47:10

I guess my question is to what

47:13

extent. Stance you see, the see

47:15

says that cent decrease as binding

47:17

on the United States. It's.

47:19

Not finding in the sense of heard of that we

47:22

can see. Contempt for violating

47:24

it is finding as we were discussing

47:26

a few minutes ago as to the

47:28

definition of the face lines, the obligations

47:30

that they are pointing to. His

47:32

it's pretty sure you sir are it's

47:35

who are through. The three specific

47:37

concerns one is to gauge which

47:39

is actually contemplated by the compact

47:41

itself and article to an article

47:43

five that with images. The second

47:45

is an accounting issue that isn't

47:47

that falls within the scope of

47:49

the accounting the already happened because

47:51

what's the the talking about your

47:54

is not the day to operation

47:56

of the project it is and

47:58

ended the year. Then

48:00

about whether the compact have been violated

48:02

their two different things and the third

48:04

is a transfer of as allotment between

48:07

districts over bad at the end of

48:09

the beginning of each year that would

48:11

be enforced against the districts. Are

48:13

you going to miss? Put it on. Mr.

48:16

Lu said it was inexplicably where you

48:18

gave up to nine to thirty a

48:20

resource use when they. Certainly.

48:23

Are honor is the nature of a

48:25

settlement is that parties compromise and the

48:27

the special master it determines at the

48:29

summary judgment states but there wasn't a

48:32

strict nineteen. Thirty Eight. Condition:

48:34

As the that success originally set it,

48:36

there was some additional amount of development

48:38

that had been contemplated and taking. We

48:40

accepted that as a fundamental matter and

48:43

going forward. looking at the evidence and

48:45

looking at the different planes we concluded

48:47

that this within the Texas is that

48:49

sense. To systems. See

48:53

this may be alone Same

48:55

line for down the language

48:57

is. The Earth

49:00

and just as courses his

49:02

opinion and me or two

49:04

thousand and eighteen case sizes

49:06

after we permit us to

49:08

intervene. It also filed a

49:10

complaint with allegations that parallels

49:13

Texas Where did you were?

49:15

Now It appears that you've

49:17

diverge. Could

49:19

you give us and did you

49:21

explain why that happened In on

49:23

what basis to death said that

49:25

God exists happen. Either

49:27

government seems that the Us seems quite

49:29

a bit of emphasis on that. To

49:33

responses the. First is going back

49:35

to Twenty A T. Ironically, said

49:37

general color when he was standing

49:39

at the left turns predicted that

49:41

there would be a diverse into

49:43

that position. He does. he

49:45

was asserting that texas would be asserting

49:47

and eighteen thirty eight condition in the

49:49

us to be asserting a d to

49:51

and that's actually how it's been litigated

49:53

up until the exceptions to that sets

49:55

the other thing that's changed is again

49:57

they're trying to bring into this lawsuit

50:00

intrastate issues within New Mexico

50:02

that Texas actually never agreed

50:04

to that were appropriately part of its lawsuit

50:06

back in 2018. Just

50:09

for you. Who

50:12

decided how to do the accounting before

50:14

the consent decree? Who

50:17

set up that process? There are

50:19

two different processes. One is

50:21

run by the Rio Grande Compact Commission

50:23

that is the compact compliance, and the

50:25

other is the accounting process for the

50:27

project itself. Those run in parallel. They

50:30

only really meet at basically an

50:33

end of the year meeting where Texas and

50:35

New Mexico as well as Colorado would be

50:37

telling them there's a credit or a debit

50:39

that needs to be put into your accounting

50:41

system. Who set up what would be reported

50:43

or how? The

50:48

two projects, not the states,

50:50

correct? This is cooperative federalism. They

50:53

work together about this and they work together on an ongoing basis.

50:56

The problem is that now

50:58

you're directing the federal government to

51:00

do something different, whether

51:03

it's de minimis or not. I can't

51:05

even figure that out in reading the

51:07

materials. But when

51:10

we have the opposite situation of the

51:12

federal one sovereign, the federal government telling

51:14

the states to do background tricks on

51:18

gun buyers, we said that's stepping

51:20

into their sovereign decision making

51:22

and couldn't. I

51:25

don't know why this is not the

51:27

same in reverse, that you're commanding the

51:29

federal government to do something

51:31

that it had not done previously.

51:35

So where do you get the power to do

51:38

that? You claim the power is because they've

51:40

undertaken the duty to do this. But

51:42

they took a duty to do this, retaining

51:46

the right to make certain decisions. Now

51:49

you're chasing that baseline. The

51:51

Reclamation Act of 1902 stated that the

51:53

federal government takes its water rights subject

51:56

to the state. both

52:00

the procedural and substantive requirements of the states

52:02

and that can include, for example, in the

52:04

United States against California in 1978, some

52:07

really, really nitpicky, like

52:09

25 different conditions micromanaging and that

52:12

is something that Congress has allowed

52:14

for here. Here, it's just a

52:16

discussion about, it's slightly

52:18

different numbers in a larger accounting

52:20

process that's already existed. Jessica?

52:25

Jessica Gorsuch? Let me just see if I've got it right. So

52:28

we have a consent

52:30

decree that we have to approve or disapprove

52:33

and the big change is

52:35

the baseline. And

52:38

that's been the big subject of dispute. And

52:41

that's what the government says it's most worried

52:43

about. Yes. But

52:45

it's the same baseline that's been used for 40 years. Yes,

52:48

Your Honor. Ever since the project

52:50

went from delivering at individual farms to delivering

52:52

at a district level, it's used the same

52:54

baseline. And the other concern that we've heard

52:57

mentioned is the treaty, but the

52:59

special master found that there's no treaty problem

53:01

here. Yes, the special master found there's not

53:03

even a serious argument that there's a treaty problem.

53:05

Might be different in terms of approving a

53:08

consent decree if there were a treaty problem.

53:10

Absolutely. Okay. And then the other set of

53:12

issues has to do with administration.

53:15

Where the water gauge is gonna

53:17

be. And you're getting a benefit

53:19

out of this deal because instead of the water

53:21

gauge being an elephant butte, I don't know how

53:23

many miles, over a hundred miles from the border,

53:26

you're getting a measure now at the

53:28

Texas border. I'd

53:30

tweak that just a little. The gauge that is still

53:32

going, the gauge that's at elephant butte is still at

53:34

elephant butte. Yeah, no. We're getting a

53:36

separate, the gauge that we are seeing

53:38

in El Paso is, had

53:41

been gauges that had been canal headings

53:43

within Texas, but we are measuring at

53:45

Texas. Well, we are getting, we're definitely

53:47

getting a benefit in the sense that

53:49

the project

53:51

is now considering and freezing and the 1978

53:53

level, the

53:57

pumping that had been happening. And I do wanna point out,

54:00

out that that is requiring New Mexico to reduce pumping to

54:02

get down to 1978 and I think they've already

54:04

spent something like $60 million on it. Thank

54:07

you. Justice Kavanaugh. So

54:12

do you dispute that the downstream contracts

54:14

are still in effect and by the

54:17

United States with respect to the allotment

54:19

and their obligations regarding that?

54:21

We don't dispute it but under Henderlider

54:23

the contractor's rights rise no higher than

54:25

the state's. If Texas only gives them 43

54:28

out of 100 gallons the Texas district can't claim

54:30

that we're fine. I understand

54:32

but the contracts do talk about their transfer

54:34

obligations as between EBID and

54:37

CT1, right? No Your Honor. They

54:39

don't. The 1938 contracts that

54:41

are incorporated into the GALP Act do

54:44

not discuss a transfer obligation. That is

54:46

something that the United States came up

54:48

with in 2008 without the compacting states

54:50

whose rights are at issue even being in

54:52

the room as my colleague said. I have

54:54

a question. If the United States decides not

54:56

to transfer water pursuant to

54:58

the consent decree, let's say it goes through,

55:01

you mentioned earlier that that would be

55:04

enforced against the states and not the

55:06

United States. In other words, you're not

55:08

binding them necessarily legally. Is that your

55:10

position? The district, yes. That would be

55:12

enforced against the district. Is that in

55:14

the compact or in the

55:16

consent decree? Is that or is

55:19

that just something you're saying here and now? That's

55:21

not specifically in the consent decree. That

55:23

is however, the way that the transfers

55:25

work is to take a

55:27

specific example. If a negative departure

55:29

transfer were triggered, that would mean over a period

55:31

of years, EBID, the New Mexico

55:34

district has received far, far more water

55:36

than it was entitled to and that

55:39

would be transferred to

55:41

Texas as a Texas district or the

55:43

way of a remedy. If

55:45

the EBID were to continue to take

55:47

more water than it was entitled to

55:49

even after that, that would

55:51

be enforced through a New Mexico state

55:53

administrative process. That's part of the larger

55:55

constellation of laws that my friends mentioned and

55:57

not specifically in the consent decree. Thank

56:00

you, counsel. Mr.

56:03

Wexler? Mr. Chief Justice, and may

56:05

it please the Court. The question

56:07

of whether the United States can veto the

56:09

settlement of the compacting states can be resolved

56:11

by the application of four principles. First,

56:14

the distinctively federal interests of the United

56:16

States do not include an interest in

56:18

the equitable apportionment of Rio Grande water.

56:22

That is undisputed. Because

56:24

the only issue resolved by the consent

56:26

decree is the equitable apportionment, the United

56:28

States' interests are not implicated. Second,

56:31

the compact establishes the apportionment. The

56:33

Rio Grande project must then conform

56:36

its operations to ensure that the

56:38

compact apportionment is delivered. Third,

56:41

this Court has recognized the right of

56:43

states to clarify an ambiguity in an

56:45

interstate compact so long as

56:47

the clarification is consistent with the compact.

56:50

Here, the consent decree measures Texas' share

56:53

of the Article IV delivery in a

56:55

manner that is expressly contemplated by the

56:57

compact. And fourth, there are

56:59

other available fora for the

57:02

United States to resolve its remaining claims.

57:04

The special master observed that, quote, it

57:07

is difficult to envision a resolution to this

57:09

matter that might be superior to the consent

57:11

decree. The Court should overrule the United States'

57:13

exception and enter the consent decree. I welcome

57:15

the Court's questions. Could

57:21

you, the state of

57:23

Texas, the United States, seem to

57:25

suggest that Texas

57:28

and the states

57:30

have changed their views from early,

57:32

from 2018. And

57:35

we've had some discussion of that. I'd like

57:37

to hear your comments on that. Well,

57:40

United, New Mexico has been consistent

57:42

about its position in terms

57:44

of the D2 baseline. What

57:47

we understood the 2018 decision to be doing is essentially

57:49

saying Texas had a claim

57:51

to the apportionment. That is an interstate

57:53

apportionment as between Texas and New Mexico.

57:56

Only those states are in the compact

57:58

itself. States had

58:00

brought was a claim for interference, that is,

58:03

this Court said that there were obligations that

58:05

arose under the Compact and

58:07

that it had a claim to be

58:09

free from interference with those duties and

58:11

obligations. The consent decree doesn't address that

58:14

interference claim. All it does is define

58:16

what the equitable apportionment is as between

58:18

Texas and New Mexico. And

58:20

the United States is free to bring,

58:22

as the special master indicated in his

58:24

third report, they're free to bring

58:26

all of those claims of interference and other fora.

58:28

And that would be consistent with the way

58:31

this Court has handled other cases. What

58:33

is the nature of the

58:35

disagreement about the groundwater pumping?

58:39

So I would understand that to be Texas

58:41

and New Mexico have resolved the apportionment, the

58:43

amount of water that each state is entitled

58:45

to. What the United States

58:48

is really arguing about is how does

58:50

New Mexico satisfy its obligations, that is,

58:52

which specific water users within New Mexico

58:54

must shut down wells, how New Mexico

58:56

should be administering water, and those sorts

58:59

of intra-state issues that

59:01

this Court has held are purely

59:03

intramural disputes between competing water users

59:05

within the state. And in other

59:07

cases where there are those sorts

59:10

of competing uses

59:12

between the inter-state users,

59:16

the Court has sent

59:19

the case back to the state. So

59:22

for example, in the case of

59:24

United States v. Nevada, once the interstate

59:26

matter was resolved as between California and

59:28

Nevada, the case with this Court said,

59:31

well, the remaining claims can be

59:33

resolved within the state of Nevada because

59:35

it only has to do with competing

59:38

interests of Nevada water users. So you

59:40

would send the United States to a presumably

59:42

federal court in New Mexico to sort out

59:44

the concerns they have and would prefer to

59:47

raise here. That's correct, Your

59:49

Honor. For any reclamation claims, those would be

59:51

in federal district court in New Mexico as to

59:54

the definition of Project Right.

59:57

So that's New Mexico state

59:59

adjudication. court matter pursuant to the

1:00:01

McCarran Act amendment and the

1:00:03

Reclamation Act that Justice Gorsuch referred to

1:00:05

earlier. And is it possible that the

1:00:08

New Mexico courts would issue decisions concerning

1:00:10

the allocation of water that would

1:00:12

be contrary to the consent decree?

1:00:14

No, we think the consent decree only

1:00:16

resolves the issue of the interstate apportionment.

1:00:19

And to Justice Jackson's question earlier, the

1:00:21

remaining questions about depletions within the state

1:00:23

of New Mexico, how New Mexico water

1:00:25

users could be done, for example, protection

1:00:28

of the treaty, all of those claims

1:00:30

would be available to the United States,

1:00:32

as the special master indicated, in the

1:00:34

lower forum. But

1:00:37

they're bound against arguing

1:00:39

that New Mexico has to use

1:00:42

a 1938 baseline, correct? No,

1:00:44

I don't think that's right, Justice. Well, that's

1:00:46

what your co-council says. Well, I don't think

1:00:48

that's... That's not how I understood my

1:00:50

co-council. What has

1:00:52

a preclusive effect is the apportionment itself.

1:00:55

So the baseline would apply as to

1:00:57

the amount of water that Texas is

1:00:59

entitled to receive. What

1:01:01

it doesn't preclude the United States from

1:01:04

arguing, which is really their argument here

1:01:06

is, how should the project operate? How can

1:01:08

the project be free from interference from New

1:01:11

Mexico water users? And that really is a

1:01:13

question of how does New

1:01:15

Mexico use its share of the apportionment?

1:01:18

And that question, they could raise... They

1:01:21

actually could seek to limit depletions all the

1:01:23

way back to their priority date, which is,

1:01:26

I believe, a 1903 priority date. And

1:01:29

so they would have the ability to

1:01:31

protect their project from groundwater depletions. So

1:01:34

the only thing really here is being resolved is

1:01:36

the equitable apportionment as between the two. But

1:01:39

why aren't these all connected? I mean, you seem

1:01:41

to be drawing the line between arguments

1:01:44

that the United States can make related

1:01:47

to internal

1:01:49

use of the water by New Mexico,

1:01:52

but not the apportionment as between states.

1:01:54

And maybe I'm confused, but I thought

1:01:57

this is one water system that

1:01:59

works... its way all the way down. To

1:02:02

the extent that New Mexico is

1:02:04

taking too much internally to New

1:02:06

Mexico or not allowing it to

1:02:08

continue on to the dam, doesn't

1:02:11

that affect ultimately the project,

1:02:13

et cetera? How can you separate these two out

1:02:15

in the way that you are? I

1:02:17

think it's just a matter of understanding

1:02:19

what the hierarchy here is. As the

1:02:21

special master indicated in cases like Hindorlight

1:02:23

or California versus United States, the court

1:02:25

has established that the portionment

1:02:28

as between the two states

1:02:30

is established by

1:02:33

the compact itself, not the operation

1:02:35

of the project. Once

1:02:37

that apportionment is set, now the

1:02:39

project must operate within that apportionment.

1:02:41

The amounts that the districts are

1:02:43

entitled to, for example, the New

1:02:45

Mexico district, that amount, to use

1:02:47

the language from Nebraska versus Wyoming,

1:02:50

can rise no higher than New

1:02:52

Mexico's apportionment itself. To

1:02:55

the extent that the project

1:02:58

or the United States has a claim concerned

1:03:01

about like, are there New Mexico water

1:03:03

users taking water, that is purely an

1:03:05

interstate matter. It's a matter of how

1:03:08

is the New Mexico apportionment being used.

1:03:10

That's a matter that this court has held and

1:03:13

the special master also is recommending

1:03:15

that those questions can be resolved in

1:03:17

the lower courts, courts that

1:03:19

are more appropriate or more used

1:03:21

to addressing questions of having to do

1:03:23

with New Mexico Water Administration, New Mexico

1:03:26

Water Use, which New Mexico water users

1:03:28

should be shut down, how to

1:03:30

reduce depletions. Let's see if I've got

1:03:32

it. The gist of this

1:03:34

compact is that 43% of

1:03:37

what's an elephant butte has to

1:03:39

go to Texas using the D2 baseline.

1:03:42

That's the gist of it. Now,

1:03:44

if New Mexico water users

1:03:46

are interfering with a federal

1:03:48

reclamation project, that's

1:03:51

a different question. The

1:03:53

reclamation act says that it gets resolved

1:03:55

according to state law internally,

1:03:57

intermurally in New Mexico. Yes,

1:04:00

that's exactly right, Justice Gorsuch. And all the

1:04:02

consent decree does is define more

1:04:04

precisely what was determined in the Compact

1:04:06

in 1938 that Congress

1:04:08

consented to, and that is the project

1:04:11

must be operated in a manner that

1:04:13

the equitable apportionment is delivered. That is

1:04:15

the 43% that Texas is entitled to actually

1:04:19

arise at the border in Texas, because of course,

1:04:22

otherwise they have no ability to enjoy

1:04:24

it. And all the consent decree does

1:04:26

is provide a measurement, a

1:04:28

way to measure and enforce Texas' share of

1:04:30

that Article IV delivery. And it does so

1:04:33

in a manner that is expressly contemplated by

1:04:35

the Compact in Articles II and XII. You

1:04:39

have nothing further, Justice Thomas? There's

1:04:41

the cabinet. Thank

1:04:45

you. Thank you, counsel. Roboto, Mr.

1:04:47

Liu. Thank you, Mr.

1:04:50

Chief Justice. Just four quick points. First, I

1:04:52

think I heard my friend from Texas acknowledge

1:04:55

that the consent decree would be binding on the

1:04:57

United States with respect to its claims in this

1:04:59

case. I think that's just game over under

1:05:02

the firefighters decision, which couldn't be

1:05:04

clearer that a consent

1:05:06

decree can't bind, can't distinguish

1:05:09

the claims of

1:05:11

a non-consenting intervener. Second, on the

1:05:13

nature of the United States claims,

1:05:16

Justice Jackson, I think you're exactly right. My

1:05:20

friend's attempt to kind of divide these

1:05:22

claims into an interstate portion or an

1:05:24

interstate portion just doesn't make

1:05:26

any sense, given what this court has

1:05:28

already said about how this

1:05:31

water system works. The project is

1:05:33

intertwined with the Compact.

1:05:36

And we

1:05:39

have been here all along protecting

1:05:41

the project's delivery of water to

1:05:44

the districts and Mexico. That delivery

1:05:46

of water is the Compact's apportionment.

1:05:48

So, insofar as we are trying

1:05:51

to enforce the protection of that

1:05:53

delivery of water, we are trying

1:05:55

to enforce the Compact's apportionment as

1:05:58

it is specified. I think the clearest

1:06:01

way to appreciate this point,

1:06:03

that our claims are parallel

1:06:05

to the compact

1:06:07

claims that have been in this case in the beginning, is

1:06:10

to just look at Texas' complaint on page

1:06:12

16 of its complaint

1:06:14

in this case. It asks for

1:06:17

an injunction that would command New

1:06:19

Mexico to stop interfering and impeding

1:06:21

the authority of the Rio Grande

1:06:23

Project. It's

1:06:25

exhibit A for why there's no

1:06:28

way to untangle the

1:06:30

project's delivery of water from the

1:06:32

compact's apportionment. They're both the same

1:06:34

thing. My friend from New Mexico

1:06:36

said, well, the United States will

1:06:38

be free to argue about whether

1:06:40

certain users of New Mexico are

1:06:43

probably divvying up New Mexico's share

1:06:45

under the consent decree. But

1:06:47

our entire claim in this case is about the

1:06:49

definition of the share itself. It's

1:06:52

not about how people in New Mexico

1:06:54

should divide up the eventual share.

1:06:57

It's about the delivery of water to

1:06:59

the two irrigation districts and Mexico, and

1:07:01

it's not

1:07:04

about the interstate issue. Third,

1:07:07

on the obligations. My

1:07:10

friend from Texas wanted to characterize the

1:07:12

obligations that this consent decree would impose

1:07:15

as minor obligations. As an

1:07:17

initial matter under firefighters, that just doesn't

1:07:19

matter. This is just contracts 101. Two

1:07:22

people cannot contract together and impose

1:07:24

any obligations on a non-consenting

1:07:27

third party. There's no

1:07:29

exception to that rule in this court's original jurisdiction

1:07:31

docket. In fact, I would have thought that

1:07:33

it's in this scenario that

1:07:35

that rule is most important because

1:07:37

the United States is not standing here before

1:07:40

you as an ordinary litigant. We are the

1:07:42

federal sovereign. In addition to the

1:07:44

rule on firefighters, there are rules about

1:07:46

sovereign immunity, internet and

1:07:49

government immunity. All these rules protect

1:07:51

the federal government from being what

1:07:54

is essentially a direct regulation by

1:07:56

the states. is

1:08:00

about this idea that the states can just

1:08:03

come together and resolve

1:08:05

ambiguities in the compact and

1:08:07

then impose them on the United States. This

1:08:10

just conflates the consent decree

1:08:12

with the compact. The

1:08:15

whole point of firefighters was that states,

1:08:18

by their mere consent, cannot

1:08:20

impose on non-consenting parties their

1:08:22

view of the law. Rather,

1:08:24

that view of the law has to be litigated

1:08:27

on the merits by the non-consenting

1:08:30

party. And so for all those reasons, we

1:08:32

would ask this Court to deny

1:08:34

the state's motion to enter the proposed

1:08:37

consent decree. Thank you, counsel. The

1:08:39

case is submitted.