There’s a good chance that a lawsuit over water delivery and the Rio Grande Compact of 1938, filed almost six years ago by Texas against New Mexico and Colorado, will go to trial in the Supreme Court later this year. The suit has momentous and perhaps disastrous consequences for all water users, urban and rural, up and down the Middle Rio Grande Valley and for the immense farming operations — growing chile, pecans, pistachios and other crops — south of Elephant Butte Dam.
If New Mexico loses the case to Texas, we could be forced to severely curtail our water use and perhaps even establish an aggressive program of buying up water rights and retiring irrigated farmland to pay our water debt to Texas. A somewhat similar outcome occurred in 1988 when New Mexico lost a lawsuit brought by Texas involving the Pecos River.
While both Texas suits against New Mexico involve pumping groundwater around a river, thereby diminishing surface water flow, there are critical differences between the suits. Not only will a loss to Texas over the Rio Grande cause agricultural woes all along the river, it could also require water rationing in the Albuquerque metro area in times of hard drought. More importantly in the long run, a loss to Texas could mandate the adjudication of senior water rights up and down the river, including Pueblo water rights, the most senior of all.
The six major Pueblos with rights to the Rio Grande are not, however, a party to the Texas v. New Mexico lawsuit. There’s no mention of them that I can see in any of the public records of the suit so far. Nor is there mention of the hundreds of Hispanic and Anglo farmers with senior water rights to the river that have never been adjudicated either.
It seems entirely possible to me that Associate Supreme Court Justice Neil Gorsuch, who has a history of siding with Native Americans over issues involving treaties and other interests, might look askance at the Middle Rio Grande’s tangle of unadjudicated water rights and put the Texas suit on hold until the some kind of clarity reigns.
Gorsuch’s reluctance might be reinforced if he focuses on Article XVI of the Rio Grande Compact, which says, “Nothing in this Compact shall be construed as affecting the obligation of the United States of America to Mexico under existing treaties, or with the Indian Tribes, or as impairing the rights of the Indian Tribes.”
Article XVI makes it perfectly clear to me that the Supreme Court cannot rule against New Mexico until Pueblo and other early water rights are adjudicated, intertwined as they are in myriad treaties and other agreements, including the Treaty of Guadalupe Hidalgo, which promised to “inviolably respect” existing water and property rights when the United States took over New Mexico and adjacent territories after it won its war with Mexico in 1848.
For the Supreme Court to rule against New Mexico and require serious curtailment of water use along the Middle and Southern Rio Grande would, in effect, violate unadjudicated water rights all along the river, offending the Treaty of Guadalupe Hidalgo and other treaties.
The water rights situation on the Rio Grande is really a shameful mess. “The fact remains that recognized Native American pueblos such as Isleta, just south of Albuquerque, have plausible but undetermined claims to the whole river. The whole structure of Anglo development, shaken by environmentalism, could be upended by these ownership questions. Without a firm grasp on the nature and extent of these Puebloan and Hispanic rights, efforts to restore the river and move it into a brave new future are all built on sand.” So said authors and water experts Fred Phillips, Em Hall and Mary Black in their definitive book “Reining in the Rio Grande.”
New Mexico has already filed counterclaims against Texas, accusing its farmers and cities of pumping groundwater along the Rio Grande and, in effect, causing New Mexico severe hydrological problems of its own. But whatever the direction Texas v. New Mexico takes down the road, it’s hard to see how any decision the Supreme Court might make wouldn’t end up being “built on sand.”
It’s easy to imagine Pueblos opposing all rulings that might infringe on their senior water rights, undefined or not. And if the Court should make adjudication of those rights mandatory before any final rulings come down, Texas v. New Mexico over the Rio Grande could be in litigation for decades.
*Nullius in verba: take nobody’s word for it
(Image by Kmusser)
V.B., I count on you to bring issues like this–almost always successfully hidden from view–to our attention. I hope someone brings this column to Gorsuch’s attention as well. Thank you again for and always for being my favorite “whistleblower.”
VB, Thanks for your attention to this very important but generally ignored problem.
I disagree re the details, only. The Rio Grande Compact provides a perfect boundary between the Lower Rio Grande and the Middle Rio Grande with the dividing line at Elephant Butte Dam. As long as New Mexico continues its compliance with specific and unambiguous water delivery obligations through the Middle Rio Grande for use in the Lower Rio Grande, I believe that dividing line will hold.
The litigation in the Lower Rio Grande is over New Mexico’s share of total Lower Rio Grande supply, which the Rio Grande Compact does not specify. Texas and the United States are both suing New Mexico. Texas also has uncontrolled ground water pumping that is diminishing the flow of the river, which is a topic of New Mexico’s counterclaims.
Texas sued New Mexico in the 1950s for racking up a huge underdelivery of water through the Middle Rio Grande. The USA claimed it was an indispensable party to this lawsuit but refused to join. That likely won’t be the case again. New Mexico regained its compliance after the federal government rebuilt the Middle Rio Grande Conservancy District. That Texas lawsuit was dismissed.
Water deliveries through the Middle Rio Grande for use by Texans and New Mexicans below Elephant Butte Dam are in substantial arrears now for the first time since 1985, but remain in compliance with the Compact, which allows cumulative under deliveries of water as long as the cumulative amount is less that 200,000 acre-feet. The cumulative debit will be about 35,000 acre-feet after accounting is finalized in March.
The former administration paid no attention, and decimated the current State Engineer and Interstate Stream Commission budgets, staffing, and capabilities, which Gov. Lujan Grisham and the Legislature failed to fix last session. Now, the Legislative Finance Committee recommends big cuts to the Governor’s modest increases in budget and staffing for those critical state agencies. Meanwhile, water budgets show that water use in the Middle Rio Grande exceeds the average legally available supply, and the state is doing little to nothing to address that fact. The State has not provided the agencies with responsibility for water planning and limiting Middle Rio Grande water uses the budget and staff resources required to do so. That is a preventable shame and could have grievous consequences.
I was Interstate Stream Commission Director from 1997 to 2002 and the engineering advisor to New Mexico’s Rio Grande Compact Commissioner and know this topic pretty well. People with an interest should read Making the Case for Change and review Senate Bill 558 (2019). Both are available at http://www.waterassembly.org
Adjudicators can adjudicate ‘till the cows come home, but as long as the users – that’s us – continue to grow in number the problem will remain. Water’s like land: God ain’t makin’ any more of it.