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States spend big money in the Texas v. New Mexico Supreme Court fight

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The state governments of Texas and New Mexico have spent more than $30 million combined on legal fees in the fight over Rio Grande water, which is now before the United States Supreme Court.

Invoices and contracts from both attorneys general offices show the states think that water is worth fighting over as Texas has doled out $21.1 million in legal fees to private firms since 2012, while New Mexico reportedly spent at least $9.9 million. And all signs signal the clash will continue, possibly for years.

The dispute over the Rio Grande’s water between the states and the federal government started a decade ago. In a 2011 federal lawsuit, New Mexico alleged the federal government shorted New Mexico its share of Rio Grande water, and gave too much to Texas.

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It escalated when Texas filed a new lawsuit against New Mexico in the U.S. Supreme Court three years later alleging New Mexico takes more than its fair share of the water through diversion and groundwater pumping. Texas also accused New Mexico of violating the Rio Grande Compact, an 82-year-old agreement that spells out how Colorado, New Mexico and Texas split the river.

The United States Department of Justice intervened in the case, siding with Texas. (Colorado is also named in the lawsuit, but is not presenting a case, as the issues are between New Mexico and Texas.)

The first part of a virtual trial before Judge Michael Melloy, a senior judge on the 8th U.S. Circuit Court of Appeals, concluded in mid-November. The U.S. Supreme Court appointed Melloy to oversee and determine facts as a trial judge. The trial will continue sometime in the spring for the technical portion of testimony, which will include hearing from different experts regarding hydrological models, rather than less-complex testimony from state and local officials.

The lawsuit, called No. 141 Original Texas v. New Mexico and Colorado, is an extension of decades-long fights over rivers between Texas and New Mexico.

In 2012 then-Texas Attorney General Greg Abbott signed off on hiring California-based firm Somach Simmons & Dunn. The firm was required to advise and represent multiple state agencies, including the Texas Commission on Environmental Quality, the attorney general’s office, the Texas Rio Grande Commissioner and the Texas Water Development Board. Stuart Somach, an attorney specializing in water and natural resources, has been the lead council for Texas since 2012.

The contract originally included a reimbursement to the firm of up to $500,000 but has been amended since to increase the fees and extend the contract. The 12th and most recent amendment increased the state’s maximum obligation to the firm to $21,179,781 through December 2021.

Two divisions of the Texas Office of the Attorney General have also billed a total of $432,625 for their time, travel and overhead expenses.

A flock of egrets flies over the Rio Grande near Derry, New Mexico as the river fills with water released from Caballo Reservoir in May. (Corrie Boudreaux/El Paso Matters)

The Environmental Protection Division in the Texas Attorney General’s Office billed the state more than $247,000 since fiscal year 2012. The Solicitor General’s Office, which includes Attorney General Ken Paxton, billed the state more than $185,000 since 2017.

From fiscal years 2014 until 2021, the New Mexico Attorney General’s Office said it spent $9.9 million in legal fees, according to spokeswoman Jerri Mares. The Attorney General’s Office agreed to pay two separate firms just under $2.4 million in July 2020 after awarding two contracts for nearly $1.2 million to each firm. Both law firms entered into a sole-source agreement, meaning the contract was not competitively bid out.

The firms are Denver-based environmental firm Trout Raley Montano Witwer and Albuquerque-based Robles Rael & Anaya. In 2021, the Attorney General’s Office increased the firm’s reimbursement, citing “mandated mediation and aggressive pre-trial deadlines.” The office would pay $1,294,500 to Trout Raley Montano Witwer, and $2,017,263 to Robles Rael & Anaya.

The legal bills won’t get any cheaper.

After the trial before special master Melloy concludes next spring, Melloy will prepare a record of facts for the Supreme Court, in which all parties will have a chance to comment. If the case doesn’t settle, it could be years before the Supreme Court finally rules on the dispute.

Cover photo: Water rushes through the Caballo Dam into the Rio Grande in New Mexico in May. The dam was opened to release water to southern New Mexico and El Paso. (Corrie Boudreaux/El Paso Matters)

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Danielle Prokop

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 Mexican. She can be reached at dprokop@elpasomatters.org.

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