SUPREME COURT OF THE UNITED STATES
_________________
No. 141, Orig.
_________________
TEXAS, PLAINTIFF
v. NEW MEXICO AND
COLORADO
on exception to third interim report of the
special master
[June 21, 2024]
Justice Gorsuch, with whom Justice Thomas,
Justice Alito, and Justice Barrett join, dissenting.
Texas and New Mexico ask us to approve a consent
decree resolving their decade-long original jurisdiction dispute
over the Rio Grande Compact. The decree would fairly apportion
water from the Rio Grande River between those two States and leave
federal reclamation operations in the area running the way they
have run for decades. A Special Master we appointed to consider the
dispute has recommended approving the proposed decree, concluding
that it is “difficult to envision a resolution to this matter that
might be superior.” Third Interim Report of the Special Master 15
(Third Interim Report). The States’ dispute resolved, and the basis
for our original jurisdiction gone with it, the Special Master also
recommends dismissing without prejudice any claims the United
States, an intervenor in the case, might hold.
Still, the Court denies entry of the consent
decree. Why? Because the federal government demands as much. Not
content with receiving what it asked for when it intervened in this
litigation—the protection of its existing federal reclamation
operations—the United States now seeks to advance a theory about
how water should be distributed between Texas and New Mexico so
aggressive that New Mexico fears it could devastate its economy. In
the process, the federal government seeks to prolong this original
jurisdiction dispute, a form of litigation usually reserved for
disputes between States, over the objection of both Texas and New
Mexico. And it does so despite the fact the consent decree would
leave the federal government free to pursue any claims it believes
it has in the lower courts, where disputes between the federal
government and States are normally tried.
The Court’s decision is inconsistent with how
original jurisdiction cases normally proceed. It defies 100 years
of this Court’s water law jurisprudence. And it represents a
serious assault on the power of States to govern, as they always
have, the water rights of users in their jurisdictions. The Special
Master issued a detailed 115-page report laying all this out. His
views were wise, his recommendations sound, and, respectfully, we
should have done as he suggested.
I
A
Beginning its journey high in the San Juan
Mountains, the Rio Grande runs through Colorado, New Mexico, and
Texas before flowing into Mexico and eventually the Gulf of Mexico.
Along the way, the river serves as a vital irrigation source for
crops as varied as the terrain through which it passes, nourishing
everything from pecans to the justly famous green chiles of the
Hatch Valley. See
El Encanto, Inc. v.
Hatch Chile
Co., 825 F.3d 1161 (CA10 2016).
To ensure “an equitable apportionment” of the
Rio Grande’s waters, Colorado, New Mexico, and Texas entered into
the Rio Grande Compact in 1938. 53 Stat. 785. Congress approved it
the following year.
Ibid.; see U. S. Const., Art. I,
§10, cl. 3 (requiring congressional approval for a State’s “Compact
with another State”). The Compact directs Colorado to deliver a
specified amount of water to the New Mexico-Colorado border. 53
Stat. 787–788. New Mexico must then deliver water to Elephant Butte
Reservoir, located about 100 miles north of the Texas line, in
order to ensure Texas receives its share of the river’s waters.
Id., at 788.
The United States Bureau of Reclamation operates
the Reservoir as part of the federal Rio Grande Project. That
Project serves two roles relevant here. First, pursuant to
contracts with New Mexico and Texas water districts (serving areas
around Las Cruces and El Paso), the Project supplies water from the
Reservoir to those districts using a roughly 57%–43% split between
New Mexico and Texas.
Texas v.
New Mexico, 583 U.S.
407, 410 (2018) (
Texas I ). We have called these the
Downstream Contracts, and they essentially work to supplement the
Compact, which is silent as to the precise quantity of water owed
Texas.
Id., at 410–411. Second, the Project ensures the
delivery of a set amount of water to Mexico to satisfy treaty
obligations to that country.
Id., at 410.
Over the better part of a century, this
arrangement has worked reasonably well. Yes, disagreements
occasionally arise, sometimes leading to the filing of a complaint
in this Court. But, invariably, these disputes have settled before
the Court reached the merits. See,
e.
g.,
Texas
v.
New Mexico, 308 U.S. 510 (1939);
Texas v.
Colorado, 474 U.S. 1017 (1985).
B
In the early 2000s, another disagreement
arose. The causes? The 100-mile-long journey water must travel from
Elephant Butte Reservoir to Texas, and the increase in groundwater
pumping along that route. Groundwater and surface water (like the
Rio Grande) are often connected, drawing from and feeding back into
one another. Because of this connection, pumping by New Mexicans
downstream of the Reservoir (that is, between Elephant Butte and
Texas) reduces the amount of Project water that reaches Texas’s
water district. Texas saw this as a violation of the Compact. So in
2013, it sought to file a bill of complaint in this Court against
New Mexico. (Colorado, as a signatory to the Compact, joined as a
defendant). We agreed to exercise our original jurisdiction over
the case and appointed a Special Master to aid in our consideration
of it.
Texas I, 583 U. S., at 411.
In brief, here is how Texas framed its claim. It
argued that the Compact implicitly guarantees that the State’s
water district will receive a certain minimum quantity of Rio
Grande water from New Mexico. And, Texas contended, we should
calculate the amount of that water based on the “conditions” in and
around the river “that existed in 1938 at the time the Rio Grande
Compact was executed.” Texas Complaint 5, ¶10. Back in 1938, there
was hardly any groundwater pumping. So adopting 1938 conditions as
our baseline would have the effect of giving Texas’s water district
more water. See
id., at 8–10, ¶18.
New Mexico resisted Texas’s claim. Among other
things, New Mexico observed that the Compact is silent about how to
measure water due Texas. N. M. Brief in Opposition 14–15 (Mar.
11, 2013). And New Mexico stressed that, since approximately 1980,
the federal government has relied on data about Rio Grande
conditions between 1951 and 1978—the so-called D2 Period, when
groundwater pumping was more prevalent—to calculate the amount of
water due Texas’s water district under the Downstream Contracts.
See N. M. Counterclaims 10–11, ¶¶40–41 (May 22, 2018); Joint
Reply to Exception of the United States by the State of Texas
et al. 5–6. New Mexico stressed, too, that Texas had not
previously objected in this Court to that practice—a sign, New
Mexico said, that Texas understood it to be entirely consistent
with the Compact. N. M. Answer 10–11, ¶36 (May 22, 2018).
Abandoning decades of practice and mutual
understanding, New Mexico continued, would threaten dire
consequences for its economy. Farming along the Rio Grande, New
Mexico explained, relies in part on groundwater pumping for
irrigation. And replacing the D2 Period with a 1938 baseline, when
pumping was all but nonexistent, could put at risk nearly 50,000
jobs (in a State of 2 million people) and up to 10% of the State’s
gross domestic product. See 1 Tr. of Proceedings before the Special
Master 47 (Oct. 4, 2021).
In short order, the United States moved to
intervene and “filed a complaint that presented the federal
government’s interests.” Tr. of Oral Arg. 4 (Jan. 8, 2018) (2018
Transcript). For its part, the United States agreed with Texas
about the bottom line—that New Mexican groundwater pumping below
the Elephant Butte Reservoir was “interfering with the equitable
apportion[ment of] water to Texas.”
Id., at 29–30. But it
disagreed with Texas about the appropriate method for calculating
the amount of water owed Texas. A holding for Texas that the
Compact required the use of a 1938 baseline, the federal government
worried, would require it to alter its longstanding use of the D2
Period when assessing what deliveries were due under the Downstream
Contracts. Reply Brief for United States 20 (July 28, 2017) (2017
Reply). Intervention, as the federal government put it, would allow
it to protect its interest “in the Project’s operation” as well as
its interest in ensuring sufficient water reaches Mexico to satisfy
its treaty obligations.
Id., at 11–12, 18.
The United States also flagged for us a
procedural issue: Because the federal government wasn’t a signatory
to the Compact, it wasn’t clear on what basis it could press any
Compact claims separate from the claims held by the signatory
States. This raised the question whether the United States “could
go forward” with claims in its own right “if Texas’s complaint were
dismissed” or the parties settled. 2018 Transcript 14. The
government speculated that it might be able to bring an independent
claim as a “third-party beneficiary,”
id., at 19, or perhaps
had some “implied right of action” under general “equitable”
principles,
id., at 20. But because Texas’s complaint
was “going forward,” the government asked us not to “reach
that” issue.
Id., at 14.
After hearing argument, in 2018 we “permitted
the federal government to participate in [this] compact sui[t].”
Texas I, 583 U. S., at 412. In our decision, we
accepted the federal government’s suggestion that there was no need
to decide whether it had valid, independent Compact claims of its
own.
Id., at 415. Instead, we held, four “considerations
taken collectively persuade[d] us” that the government’s
participation was appropriate.
Id., at 413.
First, we
recognized the federal government’s “duties under the Downstream
Contracts” afforded it an “interest in seeing that water is
deposited in the Reservoir consistent with the Compact’s terms.”
Id., at 414.
Second, we gave weight to New Mexico’s
concession that the Project “plays an integral role in the
Compact’s operation.”
Ibid. Third, we said that
“[p]ermitting the United States” to intervene would “allow it to
ensure” its treaty obligations to Mexico were “honored.”
Id., at 415.
Fourth, we emphasized that we had no
reason to decide whether the government could press Compact claims
independently of the States because “the United States ha[d]
asserted its Compact claims in an existing action brought by Texas,
seeking substantially the same relief and without that State’s
objection.”
Ibid.
At the same time, we expressly warned that
“permission” to intervene “should not be confused for license.”
Id., at 413. In particular, we stressed, “[t]his case does
not present the question whether the United States could initiate
[its own] litigation . . . under the Compact or expand
the scope of an existing controversy between [the] States.”
Id., at 415. And, we added, “[n]othing in our opinion should
be taken to suggest whether a different result would obtain in the
absence of any of the considerations” we had laid out, “or in the
presence of additional, countervailing considerations.”
Ibid.
C
Once the case returned to the Special Master,
it appeared to be heading in the same direction as prior disputes
about the Rio Grande Compact. After completing an “initial phase”
of a trial, months-long negotiations followed. Third Interim Report
35. Ultimately, those discussions culminated in a settlement and
proposed consent decree in 2022. In the decree, the parties agreed
to continue using the D2 Period to measure the amount of water due
Texas’s water district.
Id., at 42; see Addendum to Third
Interim Report 8–11 (Addendum). But they also agreed Elephant
Butte—over 100 miles from the Texas border—wasn’t the appropriate
place to measure the amounts due Texas in light of the New Mexican
groundwater pumping between the Reservoir and state line. Instead,
the States resolved to measure water flows into Texas at a
federally operated gauge near El Paso, Texas, by the border between
the two States. Third Interim Report 7; Addendum 8–9.
In short, as with any settlement agreement, each
side gave something up to gain something it wanted. Through the use
of the El Paso gauge, Texas received a guarantee that deliveries to
its water district would be protected from excessive New Mexican
groundwater pumping between Elephant Butte and the state line. And
through the continued use of the D2 Period as the baseline, New
Mexico won its water users the right to maintain at least some of
that pumping. Colorado, as a signatory to the Compact, gave its
assent.
For the United States, the consent decree
promised business as usual. That’s because “the [c]onsent [d]ecree
essentially adopt[ed]” the federal government’s “own method of
operating.” Third Interim Report 107. The government would continue
to use the D2 Period for measuring the amounts it distributed to
Texas’s and New Mexico’s water districts, just as it had sought
when it intervened and as it has done “for approximately the last
40 years.”
Id., at 42. The federal government would not even
have to establish a new water gauge at El Paso, for it already
operates one. See
id., at 107. It was undisputed, too, that
the consent decree would protect water due Mexico under this
country’s treaty with that nation.
Id., at 94,
n. 10.
The federal government objected to the decree’s
entry anyway. In an unexpected and still-unexplained move, the
United States abandoned its position, held for over 40 years, that
its own D2 Period data supply the correct method for measuring the
amount of water it must deliver to Texas and New Mexico water
districts. Instead, the federal government began advocating for
something similar to what Texas had once urged—the “broad
elimination of New Mexican [groundwater] pumping through a return
to a 1938” baseline.
Id., at 14. Unlike Texas, however, the
federal government had never alleged in its complaint that the
Compact required the use of the 1938 baseline. In fact, it still
has not sought to plead such a claim. Perhaps even stranger yet,
despite its new litigating position, the United States continued
(and still continues) to deliver water to the water districts using
the D2 Period as its guide.
D
In a detailed 115-page report, the Special
Master recommended we approve the consent decree. He advised that
it was “difficult to envision a resolution to this matter that
might be superior” to it.
Id., at 15. In particular, the
Special Master observed that the States and federal government had
long used the D2 Period to measure the apportionment of water due
each State. And nothing in the voluminous submissions he received
suggested that they had to do otherwise. As he put it, no evidence
suggested that “the Compacting States believed [in 1938] they were
locking in . . . any particular condition of
development,” such as a certain amount of groundwater pumping, for
determining what water was due Texas or New Mexico.
Id., at
76–77.
That left the question what to do with any
claims the federal government might believe it has and wishes to
pursue as a result of its newfound views. Our decision in
Texas
I, the Special Master recalled, did not decide whether the
government had viable, independent Compact claims of its own. And
rather than undertake that assessment himself, he recommended
dismissing any claims the government might have without prejudice.
Third Interim Report 115. The Court, he reasoned, had taken the
rare step of exercising its original jurisdiction because the case
involved a dispute between two States.
Id., at 11. That
dispute was now resolved. And, he said, the federal government
could pursue any claims it might have against the States or other
water users as it normally does, “in one of several ongoing or any
new lower court actions.”
Id., at 99. In fact, as the
Special Master alluded to, the federal government is already
involved in Compact-related litigation with New Mexico in federal
district court. See
New Mexico v.
United States, No.
1:11–cv–00691 (DNM).
Though the States’ agreement and the Special
Master’s recommendations promised to bring to an end a decade of
litigation, the United States filed an exception to those
recommendations. It asked us to reject the proposed decree and
order the Special Master to conduct further proceedings yet. We
agreed to hear oral argument on the federal government’s
request.
II
A
The principles that guide our analysis in
original jurisdiction water disputes like this one are long
settled. The “power to control navigation, fishing, and other
public uses of water,” we have said, “is an essential attribute of
[State] sovereignty.”
Tarrant Regional Water Dist. v.
Herrmann,
569 U.S.
614, 631 (2013) (internal quotation marks omitted). But in our
federal system, one State may not exercise its sovereignty in ways
that deny another State the capacity to exercise its own. So to
prevent upstream States from wholly draining rivers that would
otherwise reach their downstream neighbors, this Court many years
ago developed the doctrine of equitable apportionment—the notion
“that States have an equal right to make a reasonable use of a
shared water resource.”
Mississippi v.
Tennessee, 595
U.S. 15, 24 (2021) (internal quotation marks omitted); see
Kansas v.
Colorado,
206 U.S.
46 (1907).
Time and again, we have urged States to effect
this apportionment “by mutual accommodation and agreement” rather
than through litigation.
Florida v.
Georgia, 585 U.S.
803, 809 (2018) (internal quotation marks omitted) (collecting
cases). Agreements of that kind usually take the form of an
interstate compact. Once approved by Congress, compacts gain the
status of federal law.
Texas I, 583 U. S., at 412. And
because States’ authority over their waters is an essential
attribute of their sovereignty, a compact’s apportionment of water
between two or more States “is binding upon . . . all
water claimants” in those States, “even where [a] State had granted
the water rights before it entered into the compact.”
Hinderlider v.
La Plata River & Cherry Creek Ditch
Co.,
304 U.S.
92, 106 (1938). So, for example, a compact between Texas and
New Mexico allocating water between them binds their respective
water districts that contract for water with the federal
government, along with all other water users in their
jurisdictions.
Notably, compacts also bind the federal
government when it distributes water from its reclamation projects
pursuant to agreements like the Downstream Contracts. Compacts do
so not only because they
are federal law.
Texas I,
583 U. S., at 412. They do so as well because Congress has
specifically directed federal reclamation projects to “follow state
law as to water rights” unless that law conflicts with some other
“explicit congressional directive.”
California v.
United
States,
438 U.S.
645, 673 (1978); see 43 U. S. C. §383. As we have put
it, Congress has “subject[ed] to the authority of ” the States
“[a]ll of the acts of the [federal] Reclamation Bureau in operating
[its] reservoirs.”
Nebraska v.
Wyoming,
295 U.S.
40, 42 (1935) (
Nebraska I ). So an interstate water
rights compact “necessarily bind[s]” the government as it would
“any other appropriator in th[e] [S]tate.”
Id., at 43. We
have referred to this aspect of congressional water policy as a
form of “ ‘cooperative federalism.’ ”
California,
438 U. S., at 650.
While compacts provide a highly valuable tool
for resolving water disputes, disagreements about the meaning of
their terms arise from time to time. The Constitution vests this
Court with original jurisdiction to adjudicate these interstate
disputes, an “ ‘awkwar[d]’ ” arrangement where we sit, in
effect, as a trial court, a court of first (and last) review.
South Carolina v.
North Carolina, 558 U.S. 256, 267
(2010). Decide though we may, our general
“ ‘preference’ ” is for States to negotiate to resolve
their differences.
Florida, 585 U. S., at 809. When
those negotiations bear fruit, the product is often a proposed
consent decree containing “detailed mechanisms to promote
compliance with the [c]ompact’s terms.”
E.
g.,
Kansas v.
Nebraska,
574 U.S.
445, 451 (2015).
Because a consent decree in a water rights case
seeks simply to provide more “detailed mechanisms” to implement a
compact, it bears the same force as one. Just like a compact, a
consent decree is binding on all those in the affected States,
regardless of their “participation” in the case,
Nebraska v.
Wyoming,
515 U.S.
1, 22 (1995), or their “assent or dissent,”
Hudson County
Water Co. v.
McCarter,
209 U.S.
349, 355 (1908). And, once more, the same holds true when it
comes to federal reclamation projects that distribute water to
users in the affected States. They must operate consistently with a
decree’s terms unless doing so conflicts with some other explicit
congressional directive. See
Nebraska I, 295 U. S., at
43;
California, 438 U. S., at 674.
Still, our approval of a consent decree is
hardly a given. The parties may not use a settlement to rewrite a
compact, for a new compact requires new congressional approval. See
Kansas, 574 U. S., at 455–456. So, when presented, as
we are here, with a request to approve a proposed consent decree,
two considerations guide our decisionmaking.
First, we ask
whether the decree is “consistent with the compact itself.”
Id., at 455. In answering that question, we do not require
the States’ proposal to be perfect. Rather, we will “give [a
settlement] effect” as long as it is not “wholly contrary to
relevant evidence, . . . even if we would reach a
different conclusion upon the same evidence.”
New Hampshire
v.
Maine,
426 U.S.
363, 369 (1976).
Second, because the parties’ agreement
is the driving force behind the decree, we consider whether the
decree purports to bind third parties the States have no authority
to represent. In particular, we confirm that a proposed settlement
does not improperly impose duties or obligations on those third
parties without their consent or dispose of the valid claims they
enjoy.
Firefighters v.
Cleveland,
478 U.S.
501, 529 (1986).
B
With these rules in mind, I see no sound basis
on which we might refuse to adopt the Special Master’s
recommendation to approve the States’ consent decree.
First, the decree is consistent with the
Compact. All agree the Compact implicitly guarantees Texas some
minimum amount of Rio Grande water each year. Third Interim Report
75–76, and n. 6. In their settlement, the States propose to
calculate that amount by reference to the D2 Period and measure it
at a water gauge at El Paso. Both terms are entirely appropriate.
The States have relied on the D2 Period for decades. And in making
distributions to those States’ water districts pursuant to the
Downstream Contracts, so has the federal government. These
longstanding practices are “highly significant evidence of
[everyone’s] understanding of the [C]ompact’s terms.”
Tarrant
Regional Water Dist., 569 U. S., at 636 (internal
quotation marks omitted). All agree, too, that the Compact
expressly authorizes representatives from each compacting State to
choose gauge locations. See Third Interim Report 69–70. So use of
the El Paso gauge is consistent with the Compact as well. Indeed,
by using that gauging station rather than one 100 miles upstream
from the Texas border at the Elephant Butte Reservoir, the decree
ensures Texas’s water district is protected from excessive
groundwater pumping in New Mexico between the Reservoir and the
state line.
Second, the consent decree does not
impose any new improper duty or obligation on the federal
government or deny it the ability to pursue any valid claim it may
have. Yes, under the decree, reclamation authorities must measure
water they distribute to Texas’s and New Mexico’s water districts
using the D2 Period. And they must use the El Paso gauging station
to do so. But, again, the federal government has employed the D2
Period to measure the water it distributes for decades, and it has
long maintained the El Paso gauging station. The government cannot
sensibly suggest that it would be improper to require it to
continue doing as it has long done.
Nor is there anything unusual about any of this.
As we have seen, under longstanding federal law, a consent decree
between the States “will necessarily bind” “the Reclamation Bureau”
because “[a]ll of [its] acts . . . in operating the
[Project] so as to impound and release waters of the river are
subject to the [States’] authority.”
Nebraska I, 295
U. S., at 42–43; see Part II–A,
supra. Accordingly,
Texas and New Mexico are entitled to decide what water rights their
governmental water districts are due, and the federal government’s
reclamation project is bound to honor what the States say on the
subject. See
ibid.;
California, 438 U. S., at
675. Of course, a consent decree would be improper if it left the
federal government unable to meet some other “explicit
congressional directive.”
Id., at 673. But the government
does not argue anything of the sort here, never suggesting, for
example, that the proposed decree would risk its obligations under
its treaty with Mexico. To the contrary, it is undisputed that
compliance with the decree would “
protect the [t]reaty
water.” Third Interim Report 94, n. 10 (emphasis added).
Think about it this way. A federal reclamation
project may not decide that state water districts are entitled to
different water rights than States have specified in their compacts
and consent decrees. Those agreements bear the force of federal
law, as Congress has directed and our cases have long recognized.
And were there any possible remaining room for doubt, the
Downstream Contracts themselves dispel it. They direct the
contracting parties (the federal government and the water
districts) to apply two sources of law when allocating water: that
of the States and the federal Reclamation Act of 1902—the same
statute that instructs the federal government to defer to the
States in allocating water rights among their users and to operate
reclamation projects consistent with what state law requires. See 4
Tex. App. in Support of Partial Summary Judgment 593; 2
id.,
at 911–912; 43 U. S. C. §383.
Nor does the consent decree dispose of any valid
claims the federal government may possess in its own right, whether
under the Compact or any other source of law. To be sure, to the
extent the federal government seeks to pursue a claim “wholly
derivative” of the States (or their water districts), those claims
necessarily “rise or fall with the claims of the States,” and the
federal government has no independent right to press them.
Alabama v.
North Carolina, 560 U.S. 330, 357 (2010).
But, to the extent the federal government thinks it has any
independent claims of its own, the Special Master recommends
dismissing them without prejudice.
That is “an entirely appropriate”—and our long-
preferred—“means of resolving whatever questions remain” after the
resolution of an interstate dispute.
California v.
Nevada,
447 U.S.
125, 133 (1980). After all, once a dispute between the States
comes to an end, so does the basis for our exclusive original
jurisdiction—jurisdiction we exercise only
“ ‘sparingly.’ ”
South Carolina, 558 U. S.,
at 267; see 28 U. S. C. §1251. A dismissal without
prejudice allows the federal government to pursue any valid
independent claims it may have in the ordinary course in lower
courts. And, naturally, should the federal government prevail in
that litigation in a way that affects the consent decree, it may
return to this Court and seek a modification of that decree.
Our consent-decree decisions outside the
water-rights context confirm as much. Take
Firefighters v.
Cleveland, a Title VII discrimination suit brought by “an
organization of black and Hispanic firefighters” against their
employer, the city of Cleveland. 478 U. S., at 504. Under the
terms of a proposed consent decree, the city sought to revise an
allegedly discriminatory promotion exam and otherwise make up for
its “assertedly limited minority advancement.”
Id., at 505;
see
id., at 510. An intervenor, the union “represent[ing] a
majority of Cleveland’s firefighters,” objected on the ground that
the remedy would harm its “ ‘non- minority’ ” members.
Id., at 506, 512. Affirming the entry of the decree, we
noted that the union remained free to bring its own independent
Title VII or Fourteenth Amendment claims in separate litigation.
Id., at 530. “[W]hether [those] claims have merit [is a]
questio[n] that must be presented in the first instance to the
[d]istrict [c]ourt.”
Ibid. Until then, city employees,
including union members, would be subject to the consent decree’s
promotion provisions. If the union members won on their statutory
or constitutional challenges, however, the decree would have to be
modified to bring it in line with those laws. See
id., at
526–528. So too here.[
1]
III
Despite reaching a different result, the
majority has little to say in response. It does not dispute the
above account of our settled water law jurisprudence. Nor does it
identify any inconsistency between the proposed consent decree and
the Compact’s terms. Instead, bypassing all that, the majority
proceeds in two steps. First, it suggests, the United States may
have valid, independent Compact claims of its own that the consent
decree extinguishes; second, the majority insists, holding
otherwise would be inconsistent with our decision in
Texas
I, where we allowed the federal government to participate to
protect its interests. Neither argument is sound.
A
Primarily, the majority contends the decree
risks disposing of valid, independent claims that may belong to the
federal government. To advance its position, the majority relies on
supposed “concessions” by Texas and New Mexico before the Special
Master that, if the consent decree were confirmed, the federal
government would be left with “ ‘no remaining Compact
claims.’ ”
Ante, at 16 (emphasis deleted); see also
ante, at 19, n. 5 (treating a similar assertion by
Texas at oral argument as a “conce[ssion]”). This argument is wrong
for a number of reasons.
First, the majority’s telling omits what
happened next. Far from “agree[ing]” with the States,
ante,
at 16, the Special Master recommended we dismiss any claims the
federal government might have in its own right “without prejudice
to being asserted in other fora,” Third Interim Report 11. This
recommendation applied, he said, “regardless of whether the United
States bases its claims on Reclamation law, state law, the Compact,
or some other source of authority.”
Ibid. Because the States
did not file an exception to this recommendation, we may treat them
as having acceded to it. See
Texas v.
New Mexico, 592
U.S. 98, 105 (2020). That alone is enough to answer the
majority.
Second, the majority does not explain why the
usual course of dismissing a third party’s claims without prejudice
wouldn’t be “entirely appropriate” here, as it ordinarily is in our
original jurisdiction cases.
California, 447 U. S., at
133; see
ante, at 16–18. The majority does not, for example,
explain why the federal government could not press whatever
independent Compact claims it believes it has in lower courts and
return here, if necessary, to seek modification of the States’
consent decree. See Third Interim Report 99–100. The majority does
not offer any such explanation because it cannot. See
supra,
at 15–16, and n. 1. Until the government had the case stayed
to participate in this one, the United States was already involved,
as we have seen, in Compact litigation with New Mexico in federal
district court. See Memorandum Opinion and Order in
New
Mexico v.
United States, No. 1:11–cv–00691 (DNM, Mar.
29, 2013), ECF Doc. 193, pp. 5–6. Perhaps the government thinks it
more convenient to remain here than to return for decree
modification should it prevail in that suit or another. But that
“do[es] not provide a basis for declining to [approve] a decree.”
Idaho ex rel. Evans v.
Oregon,
462 U.S.
1017, 1026 (1983).
Third, the majority struggles to spell out how
the government might possibly hold Compact claims in its own
right—that is, independent of the States’ claims. Yes, the majority
describes the government’s present “position”—namely that the
Compact imposes a 1938 baseline—and repeats the observation that
“the Compact trumps state water law.”
Ante, at 15. But the
majority does not suggest, as the government once did, that the
United States may sue as a third-party beneficiary of the Compact
or under some ill-defined equitable cause of action. See
ante, at 11, n. 2, 14; Part I–B,
supra; 2018
Transcript 19–20. Nor does the majority purport to identify
anything in the Compact that might entitle the federal government
the right to sue to demand a 1938 baseline. See
Tarrant Regional
Water Dist., 569 U. S., at 632 (“silence in compacts” must
be read in favor of “the States’ authority to control their
waters”). In fact, the majority does not dispute that the United
States still has yet even to plead such a claim of its
own.[
2]
Fourth, the majority conspicuously avoids the
lessons of our water law jurisprudence. So, for example, the
majority expresses surprise that the government might be bound to
honor the terms of the consent decree until and unless it prevails
in other litigation on its own claims and then returns here to seek
revision of the decree.
Ante, at 19, n. 5; n. 1,
supra. But about that there should be no surprise. Few rules
in water law are more settled than that federal reclamation
projects must comply with any Compact, state water law, or consent
decree term “not inconsistent with clear congressional directives
respecting the project.”
California, 438 U. S., at 672;
see also Part II,
supra. And here, no one, the majority
included, has identified any congressional directive, much less a
clear one, inconsistent with the consent decree before us.
Fifth, the majority’s reasoning doesn’t
withstand scrutiny even under ordinary consent-decree principles.
Suppose, as the majority does (incorrectly), that approval of the
decree would necessarily preclude the United States from claiming
in any other forum “that New Mexico’s present degree of groundwater
pumping violates the Compact.”
Ante, at 17. Even so, the
majority is mistaken when it claims that the proposed consent
decree “would have the effect of ‘cutting [the United States] off
from a remedy to which’ it alleges it is entitled.”
Ante, at
17–18 (quoting
Lawyer v.
Department of Justice,
521 U.S.
567, 579 (1997)). It is undisputed that the government’s
present “prayer for relief ” in this case seeks only to
“prohibit th[e] interference” with the Project caused by excess
groundwater pumping in New Mexico.
Ante, at 16–17. All
agree, too, that at the time the United States intervened, the
government determined how much pumping was too much by reference to
the D2 Period; the government did not allege—and still has not
alleged—in its complaint that the Compact mandates a 1938 baseline.
Part I–B,
supra. To complete the majority’s clipped
quotation, then, the decree would “dispos[e] of [the government’s]
claim not in the forbidden sense of cutting [it] off from a remedy”
to which it alleges it is entitled, “but only in the legitimate
sense of granting [the government] the very relief [it] had
sought.”
Lawyer, 521 U. S., at 579; see
infra,
at 22–24.
Instead of answering any of these problems, the
majority changes the subject. It replies by observing that the
federal government’s deliveries under the Downstream Contracts play
a central role in effectuating the Compact by ensuring certain Rio
Grande waters reach New Mexico and Texas water districts.
Ante, at 9–10. That may be so, but it is no answer for
reasons we have already seen. Those contracts do not promise water
districts that the 1938 conditions will be used in measuring the
water due them. Nor may the federal government seek to vindicate
the contractual rights of the States’ own water districts. Rather,
Congress’s instructions, a century’s worth of this Court’s
precedents, and the Downstream Contracts themselves teach that the
compacting States get to decide what water rights those and other
water users in their jurisdictions enjoy. And a federal reclamation
project is bound to honor those decisions absent some clear
congressional command to the contrary. See Part II,
supra.
B
At this point, the majority retreats. Perhaps
what I have laid out above would hold true in any other case, it
replies, but this one is special. Special, the majority asserts,
because in
Texas I we allowed the United States to
participate in this case. And that ruling, the majority says,
necessarily means the United States may pursue, independently of
Texas, a claim that the Compact requires use of the 1938
conditions.
Ante, at 9–13.
This argument is mistaken, too. Recall that, in
Texas I, the government suggested it might be able to sue in
its own right under third-party-beneficiary or
equitable-cause-of-action theories. See Part I–B,
supra. But
recall, too, that the federal government asked us
not to
“reach” the question whether it could independently bring claims of
its own under these theories or any others.
Ibid.; 2018
Transcript 14. It said answering the question whether it could sue
in its own right was needless because Texas’s claims were live.
Ibid. We proceeded in express reliance on that
representation, stressing that we were
not resolving either
“the question whether the United States” could sue independently of
Texas “under the Compact” or the question whether it could
otherwise “expand the scope of an existing controversy between
States.”
Texas I, 583 U. S., at 415.
Really, there was no way we
could have
passed on the federal government’s current assertion that it has a
right to pursue a claim that the Compact requires the use of a 1938
baseline. As the majority concedes,
Texas I “repeatedly”
cabined our permission to intervene to “ ‘the Compact claims
[the United States] has pleaded in this original action.’ ”
Ante, at 11, n. 2 (quoting 583 U. S., at 415). As
the majority admits, too, the government has never pleaded the
existence of a 1938 baseline.
Ante, at 13, and n. 3.
Instead, when it sought to intervene, the government took just the
opposite view, arguing that its longstanding use of the D2 Period
was consistent with the Compact. Allowing the government to reverse
course now is not required by anything in
Texas I. More
nearly, it defies that decision by “expand[ing] the scope” of the
parties’ litigation.
Ante, at 18. In fact, it is hard to
imagine anything that might do more to expand the scope of this
dispute than forcing the States to continue to litigate when they
have already resolved their differences. Cf.
Town of Chester
v.
Laroe Estates, Inc., 581 U.S. 433 (2017) (intervenor
expands the scope of a case when it requests a money judgment
different from the one sought by plaintiff ).[
3]
The truth is, this Court has “often permitted
the United States to intervene” even without a valid claim of its
own.
Maryland v.
Louisiana,
451
U.S. 725, 745, n. 21 (1981).
Texas I was simply of
a piece with that practice. See 583 U. S., at 413 (citing that
portion of
Maryland). Far from holding the federal
government could pursue a claim in its own right, we permitted it
to “participate . . . to defend . . . interests
that a normal litigant might not be permitted to pursue in
traditional litigation.” 583 U. S., at 412–413 (internal
quotation marks omitted); accord,
ante, at 9. And allowing
intervention in that posture is anything but a holding that the
government may pursue an independent claim of its own. Cf. Fed.
Rules Civ. Proc. 24(a)–(b) (setting out different Rules for
intervention depending on whether an individual has “an interest”
or “a claim”).
Beyond that flaw with the majority’s reading of
Texas I lie others. In deciding to take the rare step of
permitting intervention, we stressed that multiple “factors” “taken
collectively persuade[d] us” to do so. 583 U. S., at 413, 415.
At the same time, we stressed that “[n]othing in our opinion should
be taken to suggest” the same result “would obtain in the absence
of any of the[m] . . . or in the presence of additional,
countervailing considerations.”
Id., at 415. Factors present
then, however, are absent now. And additional considerations have
indeed arisen. In fact, through the consent decree, the federal
government promises to receive everything it initially sought. Cf.
Campbell-Ewald Co. v.
Gomez,
577
U.S. 153, 178 (2016) (Roberts, C. J., dissenting) (“When a
plaintiff files suit seeking redress for an alleged injury, and the
defendant agrees to fully redress that injury, . . .
there is no longer any necessity to expound and interpret the law”
(emphasis deleted; internal quotation marks omitted)).
Take the treaty. One of the factors we cited as
favoring intervention concerned the then-live possibility that “a
breach of the Compact could jeopardize [the federal government’s]
treaty obligations” to Mexico requiring it to deliver certain Rio
Grande waters. 583 U. S., at 414. Now, however, everyone
agrees the consent decree will do nothing to interfere with those
obligations, but will instead “protect the [t]reaty water.” Third
Interim Report 94, n. 10.
Next, consider the federal government’s concern
in 2018 that litigation over the Compact could ultimately require
it to use the 1938 conditions in its distributions to water
districts, as Texas then sought.
That development, the
government worried, could interfere with its longstanding use of
the D2 Period in its operations at the Reservoir and the Downstream
Contracts. 2017 Reply 20; see 2018 Transcript 30–31 (Texas
highlighting this as an example of where “Texas and the United
States are not exactly going to be raising the same arguments”).
But that, too, is no longer a worry. Under the proposed settlement,
operations may continue at the Reservoir as they have for over 40
years.
Finally, recall that, when it intervened, the
federal government disagreed with Texas about the use of the 1938
baseline but “substantially” agreed that groundwater pumping in New
Mexico below the Reservoir interfered with the Texas water
district’s receipt of water to which it was entitled.
Texas
I, 583 U. S., at 415. The parties’ proposed decree
addresses this concern, as well, by ensuring the water due Texas
(again, calculated using the government’s D2 Period data) is
measured near the state line, at the El Paso gauging station, and
not over 100 miles upstream, along a course where New Mexico users
pump groundwater from the Rio Grande.
Here’s the bottom line:
Texas I did not
hold—nor could it have held—that the United States could pursue an
independent Compact claim to enforce a 1938 baseline. To the
contrary, the government’s disagreement with Texas about the
appropriateness of a 1938 baseline was one of the considerations
that led us to permit intervention. At the same time, the interests
the federal government did assert then have been satisfied now by
the States’ agreement. To conclude, as the majority does, that the
government at this late hour may assert essentially any
Compact-related claims—even unpleaded ones—is to ignore all this
and the many caveats that accompanied our decision. Where
Texas
I warned the United States not to “confus[e]” “our permission”
to intervene “for license,”
id., at 413, the Court now
reverses course and allows the government to exercise squatter’s
rights over our original jurisdiction.
IV
“The history of the relationship between the
Federal Government and the States,” we once observed, contains a
“consistent thread of . . . continued deference to state
water law by Congress.”
California, 438 U. S., at 653.
By “den[ying]” the Special Master’s recommendation to approve the
States’ consent decree “without [the] consent” of the federal
government,
ante, at 20, the Court disregards this long,
unbroken practice. Not to ensure the federal government can comply
with some statutory directive at odds with the decree. Not to
protect the interests the government identified when it entered the
case. Certainly not to avoid impermissibly disposing of a valid
claim. No, the majority defies Congress’s directions and a century
of our precedent all in aid of a position that the federal
government has never pleaded, one that works
against the
government’s decades-old, real-world interests. And the majority
does so even when the consent decree would permit the government to
raise any valid, independent claims of its own in a different
forum.
Where does that leave the States? After 10 years
and tens of millions of dollars in lawyers’ fees, their agreement
disappears with only the promise of more litigation to follow. All
because the government won’t accept a settlement providing it with
everything it once sought, and now seeks to promote the use of an
alternative 1938 baseline that no party seeks and New Mexico
represents could cost it tens of thousands of jobs and a large
segment of the State’s economy. “ ‘[C]ooperative
federalism’ ” that is not.
California, 438 U. S.,
at 650.
Looking beyond this case to future ones does not
brighten the prospect. When the federal government sought to enter
the case, it did so “without [Texas’s] objection,” a consideration
that carried weight with us.
Texas I, 583 U. S., at
415. But in light of the veto power the Court seemingly awards the
government over the settlement of an original action, what State in
its right mind
wouldn’t object to the government’s
intervention in future water rights cases? If, as happened here,
even heavily caveated permission to intervene may end up
federalizing an interstate dispute, what State (or Court) would
ever want to risk letting the nose make it under the tent? In that
way, too, I fear the majority’s shortsighted decision will only
make it harder to secure the kind of cooperation between federal
and state authorities reclamation law envisions and many river
systems require.
With respect, I dissent.
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