Water marks are visible on the rock formation that gave Elephant Butte its name. Years of drought have greatly lowered water levels. (Corrie Boudreaux/El Paso Matters)
Update 12:50 p.m. Friday, Aug. 27:
Special Master Michael Melloy ruled Friday to split in half the trial for the long-running U.S. Supreme Court case over Rio Grande water between Texas and New Mexico. 
Melloy ruled the trial will be pushed back but only by a few weeks. It will be a virtual trial with testimony from a list of witnesses that have yet to be selected by the parties. 
A second portion of the trial, with in-person testimony from experts on the technical aspects of the case, will take place in the spring, in Cedar Rapids, Iowa. 
Original story:

An 8-year-old U.S. Supreme Court lawsuit between Texas and New Mexico regarding groundwater pumping on the Rio Grande may go to trial as soon as September, depending on the outcome of a hearing Friday.

Michael Melloy

The case — called No. 141 Original: Texas v. New Mexico and Colorado — will go before Special Master Michael Melloy during  a virtual hearing. Melloy will determine if the case will move forward for a trial on Sept. 13, or be delayed until spring at the request of the Texas attorney general.

The case centers on a dispute over the Rio Grande, a river which supplies water to millions of people and wildlife along its shores in Colorado, New Mexico, Texas and Mexico. Nearly 80% of its water is used in agriculture, but it’s also a major source of water for cities like Albuquerque and El Paso.

The case is solely before the U.S. Supreme Court instead of being heard first in lower courts because it involves two states and a dispute over water. 

Reed Benson, a law professor at the University of New Mexico with decades-long experience in water management, said the court instead uses “special masters” to conduct extensive research, establish a record and make recommendations to the court in these water management cases.

“The Supreme Court is not set up to hold trials,” Benson said. “So, they need special masters to essentially play the role of a trial judge to tee up an interstate water dispute for the Supreme Court.”

Melloy is a senior U.S. Circuit Court Judge on the Court of Appeals for the Eighth Circuit based in Cedar Rapids, Iowa. He was appointed the special master in 2018, after the U.S. Supreme Court discharged Gregory Grimsal, a New Orleans-based attorney, without explanation.

Reed Benson

Unlike a trial judge however, the special master does not make decisions but only advises the court.

“The special master conducts the proceedings, but he can’t actually decide anything, only the Supreme Court itself has the power to decide these cases,” Benson said.

After the trial, which is scheduled for three months, the special master will file a report, which will be open to responses from the parties involved. After the report and all the replies are submitted — if there’s no settlement — the parties would eventually present oral arguments before the U.S. Supreme Court and await its decision.

Benson said even without the uncertainty of the COVID-19 pandemic, that process takes a lot of time.

“It is very difficult to predict when that report might be issued,” Benson said. “These cases tend to lend themselves to a lot of delays.”

What’s happened with the lawsuit?

In 2013, attorneys representing Texas filed a lawsuit in the Supreme Court against New Mexico and Colorado, alleging that New Mexico violated the agreement the states made about Rio Grande water and took more than its fair share.

Texas alleges New Mexico farmers’ pumping of groundwater, using wells hydrologically connected to the Rio Grande south of Elephant Butte, “reduced Texas’ water supplies and the apportionment it is entitled to” by “tens of thousands” of acre-feet each year, according to the complaint.

Visitors arrive at the Marina del Sur on Elephant Butte Reservoir on May 22. (Corrie Boudreaux/El Paso Matters)

An acre-foot is a measurement of water equivalent to about 325,851 gallons. Texas asked the Supreme Court to order New Mexico to pay back for water owed over decades — a judgment which could top $1 billion. If New Mexico loses, that could curtail groundwater pumping and jeopardize some Southern New Mexicans’ water rights.

Colorado is named as a defendant only because it is a signatory on the Rio Grande Compact.

The compact is an 82-year-old agreement that divides the waters on the Rio Grande, which all three states and Congress ratified in 1939. 

The compact lays out the proportions of how much water each state gets. Colorado is required to deliver the water to the state line and New Mexico is to deliver the water into Elephant Butte Reservoir. The water stored there is used for irrigation districts in New Mexico and Texas, the allocation for Texas (which is roughly 120 miles downstream) and to provide Mexico its share of Rio Grande water.

This isn’t the first fight New Mexico and Texas had over Rio Grande water.

The Supreme Court fight originates from a deal hammered out between two irrigation districts and the federal government during the drought of the early 2000s. Elephant Butte Irrigation District and El Paso County Water Improvement District No. 1 agreed to share water throughout the drought.

In 2008, they entered into an agreement with the U.S. Bureau of Reclamation. Neither Texas nor New Mexico were parties to the agreement.

The 2008 operating agreement was the subject of a 2011 federal district court lawsuit that then-New Mexico Attorney General Gary King brought against Texas. King alleged the agreement gave too much water to Texas and shorted New Mexico.

Two years later, Texas filed the lawsuit in the Supreme Court, which agreed to take up the case in 2014, and granted New Mexico the opportunity to file a motion to dismiss the case.

Attorneys for New Mexico filed for a dismissal, denying the claims.

In 2014, the U.S. Bureau of Reclamation, the federal agency that operates reservoirs and built Elephant Butte Reservoir as part of the Rio Grande Project, asked to intervene in the lawsuit. The federal agency sided with Texas, claiming New Mexico’s groundwater activity depleted water, both threatening the United States’ ability to fulfill the treaty obligation to Mexico and harming the agency’s ability to deliver water to irrigation districts.

Grimsal, the then-special master, finalized his first report in 2016, recommending the court reject New Mexico’s motion for dismissal, allow the federal government to join the lawsuit and reject irrigation districts joining as members to the suit.

The bed of the Rio Grande is dry at the State Highway 154 bridge near Rincon, New Mexico, on May 22. This year’s water release from Elephant Butte was delayed by low water levels. (Corrie Boudreaux/El Paso Matters)

In March 2018, the U.S. Supreme Court issued a unanimous opinion granting the federal agency’s request to be party to the lawsuit, and rejected New Mexico’s motion for dismissal and the irrigation district’s request to participate. The court’s opinion, written by Justice Neil Gorsuch, was limited to arguing who could participate, not the finer points of each party’s arguments.

After the decision, New Mexico filed counterclaims in 2018 against Texas and the U.S. Bureau of Reclamation. New Mexico alleged the federal government failed to allocate water fairly and alleged accounting issues about Texas and Mexico water allocations. New Mexico alleged Texas’ groundwater pumping allowed Texas to take surface water greater than its share and violated the compact. New Mexico also said Texas’ alleged activity requires greater releases from the Rio Grande to offset their groundwater use, causing indirect harm. 

New Mexico asked the court to award damages.

In an unusual order in April 2020, Melloy summed up his understanding of the case complexities, and what issues he thought would be determined at trial. They included: state laws governing water are inapplicable to the case; the exact proportions of Rio Grande water each state is entitled; how much has groundwater development impacted the Rio Grande deliveries in the past or present; and the details of what water New Mexico can and cannot capture downstream of Elephant Butte Dam.

What happens now?

In an Aug. 19 filing, the Texas Attorney General’s Office wrote that the lead counsel for Texas, Stuart Somach, had an “unexpected, personal family emergency,” preventing him from attending the trial over several months. The office asked for the start date to be pushed back to March 2022, allowing Somach to attend in person, or prepare another attorney. The office also wrote “considering the COVID-19 protocols discussed for in-person trial, additional time may provide better conditions for trial presentation.”

Update from Friday’s hearing:
Attorneys representing New Mexico objected to the continuance, saying other attorneys representing Texas could fill in. They also cited  costs and scheduling issues they would incur if the trial was delayed.  
Melloy described the compromise as  “splitting the baby a little bit” because both parties would have to show pieces of their case to their opponents. 
“I do think we could separate out the issues in a way that we could, over the next two or three months, get a number of weeks of testimony concluded this fall and leave the more complex testimony for the spring,” Melloy said. 
The changes will also address concerns over the increase of COVID-19 cases, Melloy said, because it would allow for witnesses concerned about the nationwide rise in infections due to the delta variant to testify virtually.  
Melloy said he would determine a date for the virtual portion of the trial at a Sept. 2 hearing next week. 
Original story:

Benson said it’s typical for U.S. Supreme Court cases, especially water disputes with their technical issues, to drag out over years.

“If this case doesn’t settle, then this litigation is certainly going to go on, many years into the future,” Benson said. “I would anticipate anyway, that this case could still have quite a ways to go.”

Cover photo: Water marks are visible on the rock formation that gave Elephant Butte its name. Years of drought have greatly lowered water levels. (Corrie Boudreaux/El Paso Matters)

Danielle Prokop is a climate change and environment reporter with El Paso Matters. She’s covered climate, local government and community at the Scottsbluff Star-Herald in Nebraska and the Santa Fe New...