Update: Lower Rio Grande Litigation & Water Rights - PowerPoint PPT Presentation

Update: Lower Rio Grande Litigation & Water Rights Administration Elephant Butte Irrigation District Tuesday, April 9, 2019

Overview of T opics for Discussion TX v. NM & CO (including US Complaint against NM ) • Brief History of the Case • Current Status Update Adjudication of Lower Rio Grande • Recent Decisions • Current Status Update

The The co core e of of the the TX TX The co The core e of of the the US US Com Compl plai aint Com Compl plai aint • T • “New M exico has allowed exas asked the court for three primary remedies: the diversion of surface • “Declare the Rights of the State of water and pumping of T exas to the waters of the Rio groundwater that is Grande Pursuant to and consistent hydrologically connected to with the Rio Grande Compact and the Rio Grande Project Act”; the Rio Grande downstream of Elephant • “Issue its Decree commanding the State of New M exico to deliver Butte Reservoir by water waters of the Rio Grande in users who either do not accordance with the Rio Grande have contracts with the Compact and the Rio Grande Project Act and cease and desist all actions Secretary of the Interior or which interfere with and impede the are using water in excess of authority of the United States to contractual amounts.” operate the Rio Grande Project”; • Award Texas damages and “other relief” for the injury suffered as a result of past and continuing violations.

Current Status of Case Order Entered by SCOTUS Oct. 10, 2017 1. NM M otion to Dismiss TX Complaint: DENIED 2. M otion of EBID to Intervene: DENIED 3. M otion of EPCWID#1 to Intervene: DENIED 4. M otions of Amici NM SU and NM PG to file briefs regarding exceptions: GRANTED Oral Arguments J an. 08, 2018 • Argued. For United States, as intervenor: Ann O'Connell, Assistant to the Solicitor General, Department of Justice, Washington, D. C. • For plaintiff: Scott A. Keller, Solicitor General of T exas, Austin, T exas. • For defendant Colorado: Frederick R. Y arger, Solicitor General of Colorado, Denver, Colo. • For defendant New M exico: M arcus J. Rael, Jr., Albuquerque, N. M . SCOTUS Opinion M ar. 5, 2018 • Justice Gorsuch, J ., delivered the opinion for a unanimous Court. • United States' exception sustained; • All other exceptions overruled • Case remanded to Special M aster. Status conf. M arch 23, 2018. This Photo by Unknown Author is licensed under CC BY-SA

US Supreme Court Mar. 5 2018 Opinion in TX v. NM & CO The Supreme Court rejected Colorado and New M exico’s arguments in a unanimous opinion by J ustice Neil Gorsuch, and held that the United States will be allowed to intervene in this case, but in a limited way . The holding was one of a limited issue and does not grant the United States broad authority to initiate litigation in all state compact water claims. The Court supported its holding by citing four key reasons: 1. The United States’ claims under the Compact between Colorado, New Mexico, and Texas are “inextricably intertwined” with the Rio Grande Project and the contracts with downstream users are at the center of Texas’ complaint. 2. New Mexico admitted that the United States is a necessary party to the complaint because of its role in delivering the Compact’s water to the parties to this dispute. 3. The United States has an interest in protecting its ability to meet its treaty obligation to deliver 60,000 acre feet per year to M exico. 4. The United States has asserted its Compact claims in an existing action brought by Texas, seeking substantially the same relief and without that State’s objection.

What the Opinion means for EBID This decision by the Supreme Court is positive for EBID and its members. 1. The Court stated that downstream users are essentially Texas water districts under the Rio Grande Compact, thus reinforcing EBID’s original view of the case. 2. The Court made it clear that the United States has a legal responsibility to deliver water from the reservoir to downstream contract users, including EBID. That means that New M exico may not interfere with the Rio Grande Project or its water, and instead, it is the legal responsibility of the United States to look out for the best interests of the farmers within the Project. Both of those findings by the Supreme Court place EBID squarely within the protections the United States and the State of Texas are seeking for the Rio Grande Project under the Compact.

Current Status of Case NM Answered Complaints & filed Counterclaims in M ay, 2018 • NM filed 9 Counterclaims, many attacking the 2008 Operating Agreement and other project operations • NM Also filed affirmative defenses against TX a\ & US complaints Pending M otions filed Dec, 2018 • US filed a motion for judgment on the pleadings and to dismiss, attacking most of NM ’s 9 counterclaims • TX filed a motion for judgment on the pleadings and to dismiss also attacking most of NM ’s 9 counterclaims • TX also filed a motion for judicial determination that certain things are already decided in this case and cannot be litigated further • NM filed a motion similar to TX’ judicial determination seeking a declaration that some things are already decided April 2, 2019, Denver, CO • All briefing is done; pending issues will be heard This Photo by Unknown Author is licensed under CC BY-SA

What is EBID’s focus for the upcoming hearing EBID’s main focus will be to protect the Operating Agreement to try to stay out of further litigation on that issue. 1. EBID has supported arguments by the United States that NM cannot attack the Operating Agreement so its Counterclaims seeking to do so must be dismissed 2. EBID has briefed the Court on the issue of EBID’s statutory jurisdiction and contractual authority to operate the Rio Grande Project within NM , and has argued that NM cannot tell EBID or its board how the project should be operated 3. EBID has argued that the State of NM has no control over project water within EBID 4. EBID has renewed its argument for intervention if NM is allowed to attack the Operating Agreement and thereby attack EBID’s authority to control project water

History of the Lower Rio Grande Adjudication • Decision by Judge Wechsler granting priority date of M arch 1, 1903 to United States for Rio Grande Project • After issuing decision, Judge asked participating parties: “What’s next?” • Parties engaged in discussions on that issue and reported to the Court that more time was needed • All parties eventually agreed that more time was still needed, and a formal request for a stay of all pending proceedings was submitted & granted • Along with the stay request, a request for a confidentiality order was submitted, it was also granted • The stay has been reaffirmed multiple times

What’s Happening Now • Ongoing Settlement Discussions • The LRGWU, EBID and the State of New M exico continue to meet • Settlement discussions are confidential, but we are hopeful that one day we may be able to resolve a large range of dispute • Future of Water Rights Administration hangs in the balance—we hope to settle instead of seeing TX v. NM decisions govern our future

What’s Happening Now PROVE UP DEADLINE FROM SSI 101 RE IM M ATURE PECAN ORCHARDS • M arch 31, 2019 is deadline to file Proof of Beneficial Use with OSE • M ust have filed a Notice of Intent by the prior deadline • I have a list of those who filed NOIs and now need to file a PBU form by this Friday!

EBID is committed to communication, cooperation and collaboration