Without settlement, #RioGrande Supreme Court case returns to trial

The Rio Grande basin spans Colorado, New Mexico and Texas. 1 credit

by Danielle Prokop, El Paso Matters, Source New Mexico

September 28, 2022

The fight between Texas and New Mexico over Rio Grande water will head to court in Iowa early next year unless a settlement can be reached in the coming weeks – an increasingly dim prospect according to lawyers as they prepare for trial.

“The settlement was unsuccessful,” Lee Leininger, an attorney with the U.S. Department of Justice, said of the months-long confidential talks at a hearing Tuesday in the Western U.S. District of Texas in El Paso.

Settlement deadline looms in Rio Grande Supreme Court case

Former Judge Arthur Boylan, the appointed mediator in the case, said the remaining issues between the federal government and the states of New Mexico and Colorado are “dealbreakers, but are not insurmountable.” He couldn’t speak to the details of the disagreements because the negotiations are confidential, but attorneys in Colorado and New Mexico raised concerns about the federal government’s role in the dispute. Colorado is named as a defendant in the case.

Boylan said a settlement may be possible.

New Mexico attorney Jeff Wechsler said the state is ready for the lawsuit, but is “still open” to settlement options.

Lawyers for the irrigation districts, who are “amici curiae” or “friends of the court”, have asked for more time for a settlement and a later trial date.

Samantha Barncastle, who represents the Elephant Butte Irrigation District, urged Judge Michel Melloy, the special master overseeing the case, to postpone the trial until March or April. She said a settlement would provide “better relief that lasts longer” than a trial, but lawyers could not negotiate and prepare arguments at the same time.

“We’re almost there,” she said. “If you fix the trial in January, we won’t get there.”

Barncastle said the lawsuit would cost taxpayers millions of additional dollars and take another three to five years before an executive order could be issued.

Texas attorney Stuart Somach said the remaining settlement matters are out of his hands and between other parties. He disagreed with delaying the trial further, saying there should be a time limit.

“We filed this in 2013, he said. “In 10 years, we haven’t even been able to complete the trial.” White pelicans fly over Elephant Butte Reservoir on Friday, September 23. (Photo by Corrie Boudreaux/El Paso Matters)

On Tuesday, Melloy ordered the trial to begin Jan. 17, 2023, but also urged the parties to take advantage of new settlement talks, saying negotiation would better resolve issues between them.

The in-person trial is expected to expand on expert testimony and would be a continuation of an October 2021 virtual trial that provided testimony. Melloy estimated the trial could last between four and six weeks.

Since January, the states and federal government have been in negotiations to end the 9-year-old lawsuit in the Supreme Court. Officially called Original No. 141 Texas v. New Mexico and Colorado, the legal fight has cost taxpayers in New Mexico and Texas more than $30 million combined.

Trial begins in Rio Grande Supreme Court water trial between New Mexico and Texas

The litigation stems from allegations that New Mexico is bypassing Texas’s portion of the Rio Grande by pumping groundwater under Elephant Butte Reservoir, in violation of the Rio Grande Compact of 1938. The pact outlines how states must divide the waters. Colorado is named as a defendant because it is a signatory to the pact, but does not file a record of the allegations.

The fight in the Supreme Court is the culmination of decades of lawsuits over the management of the river.

A series of lawsuits erupted in the early 2000s between the Southern New Mexico and Far West Texas Irrigation Districts and the federal government over water management. Negotiations resulted in a late-breaking settlement called the 2008 Operating Agreement signed by Elephant Butte Irrigation District, El Paso County Water Improvement District No. 1 and the US Bureau of Reclamation to change. The agreement specifies the mode of water sharing and the deferral of the balances of each of the districts. Neither Texas nor New Mexico were included in the deal.

In 2011, the state of New Mexico sued in federal court, claiming the deal allowed the federal government to bypass New Mexico on water from the river and gave Texas too much. . That lawsuit is on hold after Texas filed its lawsuit in the Supreme Court, alleging that New Mexico’s pumping removed tens of thousands of acre-feet of water from the river, water that was allocated downstream in Texas. Texas sued in 2013 and was joined by the federal government, which agreed pumping from New Mexico threatened both the pact and U.S. treaty obligations to deliver water from the Rio Grande to the Mexico.

This article first appeared on El Paso Matters and is republished here under a Creative Commons license.

Source New Mexico is part of States Newsroom, a network of news outlets supported by grants and a coalition of donors as a 501c(3) public charity. Source New Mexico maintains editorial independence. Contact editor-in-chief Marisa Demarco for any questions: info@sourcenm.com. Follow Source New Mexico on Facebook and Twitter.

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