Colorado v. New Mexico

PETITIONER: Colorado
RESPONDENT: New Mexico
LOCATION: Minneapolis-St. Paul International Airport

DOCKET NO.: 80 ORIG
DECIDED BY: Burger Court (1981-1986)
LOWER COURT:

CITATION: 467 US 310 (1984)
ARGUED: Jan 09, 1984
DECIDED: Jun 04, 1984

ADVOCATES:
Richard A. Simms - on behalf of the Defendants
Robert F. Welborn - on behalf of the Plaintiff

Facts of the case

Question

Media for Colorado v. New Mexico

Audio Transcription for Oral Argument - January 09, 1984 in Colorado v. New Mexico

Warren E. Burger:

We will hear arguments first this morning in State of Colorado against the State of New Mexico.

Mr. Simms, you may proceed whenever you are ready.

Richard A. Simms:

Mr. Chief Justice, and may it please the Court:

The question before the Court is whether Colorado has met the burden of establishing a basis in fact which would warrant an award of water for a future use in Colorado on a river that has been fully appropriated and used in New Mexico.

The Master's Report before the Court simply adopts Colorado's case.

Colorado's case, however, does not begin to meet the standard of preponderance in ordinary civil actions much less the standard of clear and convincing evidence in original actions between states.

The Master has recommended an award of 4,000 acre-feet.

The bottom line of that recommendation is his conclusion that there would be no injury in New Mexico.

That conclusion depends upon three interdependent factual predicates.

The first of those is that the acreage in New Mexico must be cut in half.

That is, the acreage that New Mexico users are ready, willing and able to irrigate must be cut in half.

As part of that predicate the Canadian River users of Vermejo water must not even be considered by the Court.

The reduced acreage on the main stem of the Vermejo in the 1970's must not have been caused by water shortage.

The New Mexico water users must not have been diligent, and the Court will, therefore, protect only 5,300 acres in New Mexico instead of 9,100 acres.

Secondly, and additionally there must be in New Mexico reasonable conservation measures which would effectively manufacture or make available or augment the supply by 4,000 acre-feet at the diversion points in Colorado.

Thirdly, and again additionally the future use of the benefits that would derive therefrom must be reasonably certain and comparatively unquestionable.

All three of these factual predicates are essential to the Master's Report.

If one of those predicates fails, Colorado's case fails and the Master's Report fails.

We believe the case fails on all three predicates.

The bottom line I believe in this case generally is that there simply is not enough water in the Vermejo River to make it possible to make an award to Colorado for a future use.

In the Court's first decision in this case the Court indicated two ways in which it might be possible to apportion water: first, augmentation of supply in two ways, either through water conservation or through the effective forfeiture of water rights not diligently exercised; secondly, the Court indicated that through a balancing of benefit to the future use in Colorado against detriment to the cessation of the existing uses in New Mexico an award might be made to Colorado.

Sandra Day O'Connor:

Mr. Simms, on the first point and the way in which water can be augmented, how can New Mexico legitimately claim that nonuse over a thirty-year period never becomes in effect an abandonment of the use of a certain portion of the water?

Is it your position that New Mexico can never by nonuse lose the right to use the water?

Richard A. Simms:

Not at all, and I think the Court's first instruction to the Master in the first area of evidence taking suggests the answer to the question, Justice O'Connor.

The Court said that to determine the existing uses you must look at present levels of use, and balance on the one hand shortage of water against the possible inference on the other hand of lack of diligence on the part of the water users.

We presented the evidence.

Colorado did not present the evidence to do that.

New Mexico did present the evidence to do it.

That evidence indicates that for the Vermejo Conservancy District as an example... I presume that they are the users to whom you are referring.

In there after the District was rehabilitated in 1955 there was a ten-year development period.