Texas v. New Mexico

PETITIONER:Texas
RESPONDENT:New Mexico
LOCATION:

DOCKET NO.: 9 ORIG
DECIDED BY:
LOWER COURT:

ARGUED: Oct 10, 1955
DECIDED: Feb 25, 1957

Facts of the case

Question

  • Oral Argument – October 10, 1955 (Part 1)
  • Audio Transcription for Oral Argument – October 10, 1955 (Part 1) in Texas v. New Mexico

    Audio Transcription for Oral Argument – October 10, 1955 (Part 2) in Texas v. New Mexico

    Earl Warren:

    — proceed.

    Eugene T. Edwards:

    If it please the Court.

    There’s one other brief reference that I want to make in connection with the contract in 1951, September 24th, 1951, whereby the Government is expecting to take over the operation of the Middle Rio Grande Conservancy District facilities.

    And that is the case of Nebraska against Wyoming, 325 U.S. 589, wherein the opinion was written by Mr. Justice Douglas.

    That was the case — a suit of Nebraska against Wyoming to determine the rights of Nebraska and Wyoming in the waters of the Laramie River, I believe, and Nebraska had claimed that Wyoming was making excessive appropriations of the waters of the river in that State to the detriment of appropriators in Nebraska.

    The — the United States intervened ultimately in that case.

    They hadn’t done so when it originated but it did before its final conclusion and set up their rights which they claimed to exist by reason of the ownership of the water as a result of the construction of reclamation works and reservoirs in Wyoming under the authority of the Wyoming irrigation statutes.

    It was held in that case that to allocate water rights in an interstate stream to the several states in nowise interferes with the ownership and operation by the United States of the storage and power plants, works and facilities constructed by it on the stream pursuant to the Reclamation Act or under that Act, the water does not belong to the United States but it’s appurtenant to the land served by the project.

    Now, that —

    William O. Douglas:

    The case I think was United States (Inaudible) Wyoming.

    Eugene T. Edwards:

    That’s right.

    William O. Douglas:

    (Inaudible)

    Eugene T. Edwards:

    There are — there are two reports of that case as Your Honor will recall.

    The first one was back 10 years before the one in which Your Honor wrote the opinion and in the — in the first report of the case, Colorado had not been made a party and the United States had not intervened.

    And Nebraska in — and Wyoming in that case was insisting that Colorado was an indispensable party and I think that the United States was too, but anyway consist — that — that Colorado was and the Court held there that Colorado was not an indispensable party because no relief was asked against Colorado and there were no allegations that Colorado had done anything to the detriment of Nebraska.

    And the United States after it came in set up that it owned the water rights by reason of owning the project facilities that were constructed pursuant to the reclamation project in Wyoming.

    And this Court held that they didn’t own the water rights and that the allocation of the rights in the river to the several States in nowise interfered with any rights of the United States because the United States didn’t own the water.

    The water was appurtenant to the land under Section 8 of the Reclamation Act.

    Now, in the case that we got here, the United States doesn’t own the water.

    They’re just operating the project facilities and that’s what they intend to do.

    Incidentally, there’s a supplemental contract which isn’t in the record other than it appears in the last pleading filed by the defendants in this case, it shows that there is an agreement there that the United States is not going to operate El Vado anyway, except as a temporary and expedient matter in making the pass.

    That is — appears at page 36 and 37 of the exceptions to the report of the special master in brief and support thereof, Article IV — Article XIII (a) have said basic contracts should be revised to read as follows, “Effective February the 1st, 1955, the United States shall assume the operation and maintenance of the district works with the exception of El Vado Dam and Reservoir.”

    Now, that — that’s not in the record and hadn’t developed on the hearing but — but from this last document which is filed by the defendants here, we see that as a result of the negotiations indicting back and forth between the Bureau of Reclamation and the District, the Bureau of Reclamation is living El Vado Dam and Reservoir out of it.

    Now, paragraph (5) is merely to permit them to make certain temporary affairs on the dam, as required to permit the rehabilitation and betterment of the works to proceed without undue interruption.

    During the period of operation and maintenance by the United States that’s provided in Article IV, there’s a mandatory contract and Article IV says that they’re not to operate El — El Vado Reservoir.

    The project water including water for Indian lands now served by the district facilities set forth in Article XXXIV of the basic contract and available from El Vado Dam and Reservoir shall be release by the District in accordance with such instructions received in the contracting officer.

    Now, as — in my concluding remarks, I’d like to say that as a matter of equity here the granting of the relief —

    Hugo L. Black:

    May I ask you a question —

    Eugene T. Edwards:

    Yes, sir.

    Sir?

    Hugo L. Black:

    — I don’t quite understand your reference to six is followed by five?

    Eugene T. Edwards:

    No, five related to four.

    I don’t think I mentioned six, Your Honor.

    Hugo L. Black:

    As I —

    Eugene T. Edwards:

    — Your Honor.

    Hugo L. Black:

    — as I see — read six, it simply says that United States with the exception of this will operate and maintain the works.

    Number five seems to say that the money — that — that the water even from El Vado Dam shall be released by the District in accordant for such instructions received from the contracting officer, who is the contracting officer?

    Eugene T. Edwards:

    The contracting officer, Your Honor, is — is the representative of the Bureau of Reclamation for the 5th District at Amarillo, his name is Robert W. Jennings.

    He signed for the United States of America.

    The — the —

    Hugo L. Black:

    So that number —

    Eugene T. Edwards:

    — the district is in the fifth region.

    That is — the secretary has — the United States divided it up into regions for the administration of the Reclamation Act and this area is in, as I understand it, the 5th District which is under Mr. Robert W. Jennings, whose headquarter is in Amarillo, Texas.

    Hugo L. Black:

    Well, do you understand then that under Section 5 of this contract, the conservation district there is under obligations to release water only in accordant with the instructions received by the United States?

    Eugene T. Edwards:

    Apparently, that is true during the period when the Government is making repairs on El Vado.

    Now, as I understand the situation pursuant to Article IV here, the El Vado Dam is not to be taken over.

    There’s a part of the works that are going to be continued, pre-operated by the United States, but the United States is consented to make certain repairs on El Vado Dam.

    Now, I construe paragraph (5) to mean that while these repairs are going on that the water will be released pursuant to instructions from the contracting officer, who is Mr. Jennings.

    Now, in that connection, if — if I may go out of the record a little bit, I — I think this is out of the record itself.

    I understand that what they’re doing, they’re consulting the — the Commissioner for Colorado, Texas and New Mexico to find out whether they can go in behind the dam and make these repairs at this time.

    Well, that will interfere with — with what the Commissioners want done.

    Now, that — that isn’t in the record and — and neither is this supplementary contract in the record either.

    It’s — it’s on here as an appendix to that — to this last brief that is filed but it’s not a part of the efficient record to the hearings that have taken place so far.

    Hugo L. Black:

    May I ask you one other question?

    Eugene T. Edwards:

    Yes, sir.

    Hugo L. Black:

    To what extent if any do you think that the Texas Conservation District will get relief from — for any (Inaudible) by New Mexico, a district up there.

    Now, following the proceedings outlined in this 1952 Act of Congress?

    Eugene T. Edwards:

    I don’t think that the Court would have jurisdiction of that because as I conceived the law, the only court that has jurisdiction of an action by a State against another State to enforce a Compact is this present tribunal.

    Now, what we — what we’re endearing to do is to enforce the Compact signed by States of Texas, Colorado and New Mexico and this is a court in which to do it.

    Hugo L. Black:

    I understand that but the question I asked you is whether (Inaudible)

    Hugo L. Black:

    To what extent if any could the Conservation District of Texas gets a relief (Inaudible) action or relief —

    Eugene T. Edwards:

    I don’t think —

    Hugo L. Black:

    — by filing the other case?

    Eugene T. Edwards:

    I don’t think they could get it at all because in court — the District Court in New Mexico wouldn’t have any power to compel the State of New Mexico to live up to this contract.

    Now, we have said —

    (Inaudible)

    Eugene T. Edwards:

    Pardon?

    Now, they ask to be a part of that decision.

    Eugene T. Edwards:

    Because the allegations that have been made in the petition or complaint are that New — New Mexico has violated Articles VI, VII and VIII of the Compact.

    Now, there’s no way of enforcing the Compact except before this Court because no other court can do it.

    Felix Frankfurter:

    That is quite so isn’t it, a reversion.

    While this Court has original jurisdictions, this may be brought to the District Court.

    The United States can bring a suit against New Mexico in the District Court.

    Eugene T. Edwards:

    That is true, but what I said was that this Court was the only court that had jurisdiction of suits between States to enforce interstate compacts.

    I think —

    Felix Frankfurter:

    Why (Voice Overlap) —

    Eugene T. Edwards:

    — that’s what I said.

    Felix Frankfurter:

    — by the Constitution?

    Eugene T. Edwards:

    Well, the — the act of congress — I see my time is up, Your Honor, shall I continue?

    Earl Warren:

    Finish the answer if you will please.

    Eugene T. Edwards:

    The act of congress providing for the jurisdiction of the courts gives to this Court exclusive jurisdiction of suits between states.

    Felix Frankfurter:

    Well, I’m suggesting that despite that the United States may bring suits against the decision.

    I do not see what limitation there is in the Court — Supreme Court, this Court has held that while this Court has original jurisdiction on concept set out for that to preclude for being brought as a matter of choice in the District Court.

    And I — I don’t know the ruling and I don’t know the argument in light of those instances so far as the State can bring a suit in the District Court and I’m much troubled.

    I don’t understand in (Inaudible)

    I’m at 1952 statute.

    I don’t understand you because section — subdivision (c) precludes joining — joining the United States —

    Eugene T. Edwards:

    Yes, sir.

    Felix Frankfurter:

    — in this Court, but I don’t see how it preclude it from joining in the District Court and I meant that that is rather a funny result.

    Eugene T. Edwards:

    Whoever drafted that Act, I think had their eye on this case when they did it.

    Eugene T. Edwards:

    I thought so —

    Felix Frankfurter:

    (Voice Overlap)

    Eugene T. Edwards:

    — when I first read it.

    Yes?

    Felix Frankfurter:

    Whatever it is and that would be the only thing that I think it’s funny, the jurisdictional act of — of Congress in relation with the Division.

    But I didn’t stand with that, I mean you could bring the United States into a District Court but not into this Court, isn’t that the way it looks?

    Eugene T. Edwards:

    Well, it — it looks like that — that you could bring the United States into an action involving the distribution of water in — in a stream but, nevertheless, I think you still couldn’t get at the relief that Texas is trying to get, except in this Court because we are endearing to enforce a contract made by another state and as we conceive it, this is the only court in which we can get that relief.

    Thank you.

    Harold Burton:

    One more question, Mr. Chief Justice, if may I ask, along that line, you were just asked a moment ago if the suit was brought in the District Court of — of New Mexico and you suggested he can couldn’t get the relief against the State of New Mexico, but do we need to get the relief against the State as such if we can get the relief against the District that is doing all the damage here?

    Eugene T. Edwards:

    I don’t believe that — that that would afford relief.

    That is — unless there were some binding authority or power or some force that could compel with the State of New Mexico to live up to the Compact.

    I don’t believe that we would get results otherwise because the State of New Mexico was fully informed as to the situation and did nothing about restraining the Middle Rio Grande Conservancy District from — in effect violating the Compact by excessive use of water and by storing the water in these reservoirs.

    I don’t know what the State of New Mexico could have done except call out the militia and they didn’t know that.

    So that’s why we’re in this Court is to try to get something to compel the State of New Mexico to live up to the contract.

    Thank you sir.

    Earl Warren:

    Thank you.

    Mr. Wilson.

    Fred E. Wilson:

    If the Court please, I — there’s two matters I want brief or to refer to in connection with this case.

    One, ominously contract that we have been discussing here today and the other is the effect of the proposed amended decree in relation to that contract and its connection with the parties that are materially interested in the situation here.

    Now, under the prior prime contract of 1951, it is provided in there that the Secretary of the Interior shall require the conveyance of the property owned by the Middle Rio Grande Conservancy District as security for the loan and reimbursable charge that the District is obligated to pay — repay on this construction that at anytime, during the course of that contractual relation, the Government may refer that operation maintenance contract back to the District to operate and maintain the district works under the supervision of the United States.

    And at certain intervals, the Government may take the operation and maintenance of the district works away from the District and operate and maintain the District itself.

    Now, based upon that provision of the contract, an amendatory contract was entered into on the first day of February of this year, which provided that the Government would take over and operate and maintain the works of the District except El Vado Reservoir.

    And as to that, we have construed that contract and I think the Bureau of Reclamation boys go along with me on that that we, as the District now, is operating and maintaining El Vado Reservoir as the agent for the United States Government that we can’t release any water whatsoever from the reservoir without instructions from the contracting officer, who is the district official, for the District in which this construction is being carried on.

    Now, with that in view, just briefly I call attention to paragraph (3) of the amended complaint and see just how that could operate in view of the circumstances that I have explained.

    Paragraph (3), the State of New Mexico and the other defendants herein to be required subject to the provisions of paragraph (4) hereof to release water from storage reservoirs constructed after 1929 in New Mexico above San Mateo, in the amounts and under the conditions set forth in Article VIII of the Rio Grande Compact.

    Whenever at the beginning of any year, the quantity of usable water in projects stored is less than 600,000 acre-feet and the Commissioner for Texas during the month of January in such year demand such a release.

    Now, the first of this year, the Commissioner from the State of New Mexico says there’s less than 600,000 acre-feet in Elephant Butte Reservoir, you got 50,000 acre-feet in storage in El Vado.

    Now, between the first day of January of 1955 and the third day April 1956, I say, “You release all the water you have in storage.”

    The injunction is directed against us.

    The Court tells us to release that.

    Fred E. Wilson:

    The party in charge over the release of the water is the Secretary of the Interior of the United States.

    Now, we have that situation, so we find that the authorities indicate that the Court would not enter a decree where it’s advocacy depends upon the will of a third party of an — or any inferior department of the Government and that is the way we look at it in this case.

    Now, just one more thing and then I’m through because I think my time is up but Mr. Edwards has gone into great extent explaining the facts in this case and how easy it will be to construe this Compact under the Flood Control Act because he said that’s all can be done.

    Now, that is the very question that’s been before this Court all the time is the dispute of the parties as to what the Compact means.

    Now, here’s what Mr. Edwards says it means and you listened to what he says.

    Therefore, when the amount of water not exceeding a 100,000 acre-feet will pass the gaging station that other way, which is the upper most Compact gaging station in the Rio Grande, the State in New Mexico is not obligated to deliver any water was measured into Elephant Butte Reservoir, but when 900,000 acre-feet is measured out of way, then Texas claims 648,000 acre-feet of water.

    Now, all through the years, the indent share of the water of the Rio Grande has been charged up against the Middle Rio Grande Conservancy District and that is the reason why we show that we are in debt to Texas today if we were given credit for the indent usage, then Texas with the less water under this Compact.