After months of negotiations and nearly nine years of litigation, the states of Texas, New Mexico and Colorado announced they reached a “settlement in principle” over the alleged breach of the Rio Grande Compact. However, attorneys for the U.S. object to the proposed settlement and are in favor of a trial.
The pending settlement stems from a 2013 lawsuit filed by Texas in the Supreme Court against New Mexico and Colorado, alleging that New Mexico violated the compact by pumping groundwater that is hydrologically connected to the Rio Grande downstream of the Elephant Butte Reservoir in New Mexico. The U.S. intervened in the suit, alleging the water users who had diverted water did not have contracts with the Interior Department or were using water in excess of contractual amounts in violation of federal law.
In 2014, the Supreme Court appointed a special master to administer the case, and in April 2018, the court discharged the original special master and appointed Michael J. Melloy to the role.
Negotiations began in earnest in January this year when Melloy stayed a March 14 proposed trial and ordered the parties to file a status report by March 1 on the status of settlement discussions. In March, the states reported they had a settlement conference with the full team a month prior. The mediator created a technical team of engineers, hydrologists and water administrators from each party.
“The parties are encouraged by the progress of the discussions, but the case presents complex and longstanding issues,” the joint mediation settlement said. “As a result, the parties continue to conduct technical, legal, and policy analyses in order to determine whether a mutually agreeable settlement is possible.”
At a status conference held on June 24, Melloy said a “settlement in principle” was made, but “significant drafting, approval, and legislative and regulatory steps need to be accomplished in order to consummate the settlement.” Melloy ordered a status conference for Aug. 24, which gave the parties that filed an amicus brief, or friend of the court brief, an opportunity to review the draft of the settlement agreement. Melloy set another status conference in October, and he set a trial date for January 2023 in Cedar Rapids, IA.
Settlement details remain confidential, but the states on Oct. 24 said in court documents the decree attempts to solve interstate issues, but an agreement on intrastate matters has not been reached.
“The exact nature of the motion that will be filed is still being discussed among the Compacting States, but it will be constituted to fully resolve the Compact dispute among the Compacting States,” court documents read.
New Mexico Attorney General Hector Balderas said in a statement the case had reached an “important legal milestone.” Still, he said he is disappointed the U.S. is objecting to the proposed settlement.
“Extreme drought and erratic climate events necessitate that states must work together to protect the Rio Grande which is the lifeblood of our New Mexico farmers and communities, and I’m very disappointed that the U.S. is exerting federal overreach and standing in the way of the States’ historic water agreement,” Balderas said.
Texas Attorney General Ken Paxton echoed Balderas’ sentiment over the government’s objections and said the proposed agreement will resolve any disputes the states have.
“I’ve continued to fight to ensure our state has the legal access to the Rio Grande River that we’re owed, and that we can responsibly use the river’s resources to limit the damage of droughts and help Texas farmers,” Paxton said in a statement. “This agreement helps protect the resources of all the states involved, and I encourage the federal government to reconsider its objection to this important agreement.”
According to the Albuquerque Journal, Melloy, at a hearing on Oct. 25, accused the government of backtracking on an agreement and stated the dispute could “go on forever” if it is brought to the Supreme Court for a resolution.
“So don’t start down that, ‘Oh, poor United States of America; we’re too busy to talk about settlement, and we don’t have the resources, and we’re stretched too thin.’ I’m not buying that argument,” Melloy said.
Lawyers for the Elephant Butte Irrigation District (EBID), El Paso County Water Improvement District (EPCWID) No. 1 and the cities of Las Cruces and El Paso were in attendance at the hearing and raised objections to the proposed settlement.
“This is a settlement over the objection of three major participating entities, who all run the project, and who all will be responsible for implementing this settlement,” said attorney Samantha Barncastle, representing EBID.
According to the El Paso Times, Maria O’Brien, attorney for EPCWID, told Melloy the states in their proposed decree are “trying to pull the proverbial wool over your eyes” and said it “is not workable substantively or procedurally. So we oppose moving forward.”
After listening to the states, Melloy postponed the trial scheduled for January 2023. New Mexico, Texas and Colorado must file a motion to adopt their proposed settlement decree by or on Nov. 14. The U.S. must file a response to the motion and any briefing by or on Jan. 6, 2023.
A status conference will be held with Melloy on Jan. 24, 2023. — Charles Wallace, WLJ editor
