Texas v. New Mexico

(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
TEXAS v. NEW MEXICO
ON MOTION FOR REVIEW OF THE RIVER MASTER’S
FINAL DETERMINATION
No. 65, Orig. Argued October 5, 2020—Decided December 14, 2020
The 1949 interstate Pecos River Compact provides for equitable appor-
tionment of the use of the Pecos River’s water by New Mexico and
Texas. In a 1988 amended decree in this case, the Court appointed a
River Master to annually calculate New Mexico’s obligations to Texas
under the Compact. See Texas v. New Mexico, 485 U.S. 388. The
Court also adopted the River Master’s Manual, which elaborates on
how to make the necessary calculations to determine whether New
Mexico is complying with its obligations under the Compact. As rele-
vant, §C.5 of the Manual provides that when water is stored “at the
request of Texas” in a facility in New Mexico, then New Mexico’s deliv-
ery obligation “will be reduced by the amount of reservoir losses at-
tributable to its storage.”
In 2014, a tropical storm caused heavy rainfall in the Pecos River
Basin. To prevent flooding, Texas’s Pecos River Commissioner re-
quested that some of the River’s water be stored in New Mexico. New
Mexico’s Commissioner agreed. Several months later, the water was
released. But critically for purposes of this dispute, a significant
amount of water evaporated while the water was held in New Mexico.
For years thereafter, the States sought to reach an agreement on
how the evaporated water should be accounted for under the Compact.
To permit those negotiations to continue, the River Master outlined a
procedure in 2015 that called for the future resolution of the issue.
Neither State objected. When negotiations eventually broke down,
however, New Mexico filed a motion with the River Master that sought
delivery credit for the evaporated water. As relevant here, the River
Master ruled in New Mexico’s favor, rejecting Texas’s argument that
the motion was untimely and concluding that the evaporated water
was water stored “at the request of Texas” under §C.5 of the River
2 TEXAS v. NEW MEXICO
Syllabus
Master’s Manual.
Held:
1. New Mexico’s motion for credit for the evaporated water was not
untimely. Both parties agreed to postpone the River Master’s resolu-
tion of the evaporated-water issue. Neither party may now object to
the negotiation procedure outlined by the River Master for resolving
the dispute. Pp. 6–7.
2. New Mexico is entitled to delivery credit for the evaporated water.
Section C.5 of the River Master’s Manual resolves this case. Texas
requested that New Mexico store water at a facility in New Mexico,
and New Mexico did so, with the understanding that the water be-
longed to Texas. Texas’s counterarguments—that the stored water
was not actually part of the “Texas allocation” referred to in §C.5, that
New Mexico did not “store” the water for §C.5 purposes, and that Texas
should not be charged for any evaporation occurring from March 15
until the water was released in August 2015—are unpersuasive.
Pp. 7–10.
Motion denied.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, BREYER, SOTOMAYOR, KAGAN, and GORSUCH, JJ.,
joined. ALITO, J., filed an opinion concurring in the judgment in part and
dissenting in part. BARRETT, J., took no part in the consideration or de-
cision of the case.
Cite as: 592 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
TEXAS v. NEW MEXICO
ON MOTION FOR REVIEW OF THE RIVER MASTER’S
FINAL DETERMINATION
No. 65, Orig. Decided December 14, 2020
JUSTICE KAVANAUGH delivered the opinion of the Court.
This is a case about evaporated water. In the southwest-
ern United States, the Pecos River begins near Santa Fe,
New Mexico, and winds its way south for hundreds of miles
through New Mexico and Texas before flowing into the Rio
Grande River on the Texas-Mexico border. The 1949 inter-
state Pecos River Compact provides for equitable apportion-
ment of the use of the River’s water by New Mexico and
Texas.
The dispute in this case started in 2014 when a tropical
storm hit the Pecos River Basin. To prevent flooding, Texas
asked New Mexico to temporarily store water from the Pe-
cos River that would otherwise flow into Texas. New Mex-
ico agreed to do so. A few months later, New Mexico re-
leased the water to Texas. But in the interim, some of the
water evaporated.
The question presented is straightforward: Under the Pe-
cos River Compact, does New Mexico receive delivery credit
for the evaporated water even though that water was not
delivered to Texas? The answer is yes. The River Master’s
Manual, which was approved by this Court in 1988, imple-
ments the Compact and speaks directly to this question:
When water is stored in New Mexico “at the request of
Texas,” then New Mexico’s delivery obligation “will be re-
duced by the amount of reservoir losses attributable to its
2 TEXAS v. NEW MEXICO
Opinion of the Court
storage.” App. to Texas’s Motion for Review 37a. Here, the
water was stored in New Mexico at the request of Texas, so
New Mexico’s delivery obligation must be reduced by the
amount of water that evaporated during its storage.
For that reason, the River Master awarded New Mexico
delivery credit for the evaporated water. We agree with the
River Master’s determination, and we deny Texas’s motion
for review.
I
A
The Pecos River originates in the Sangre de Cristo Moun-
tains east of Santa Fe, New Mexico. The River flows south
into Texas, winding its way for hundreds of miles past the
oil fields, farms, ranches, and high school football stadiums
of west Texas. About 900 miles later, the Pecos pours into
the Rio Grande River a few miles west of the city of Del Rio
on the Texas-Mexico border.
Because of the dry landscape, farmers and ranchers in
New Mexico and west Texas have long depended on Pecos
River water. Over time, Texas recognized that its water
supply was vulnerable because upriver New Mexico could
(if it wanted) restrict Texas’s access to the water from the
Pecos River. Eventually, the two States struck a deal. In
1949, the States ratified and Congress approved the Pecos
River Compact to, among other things, “provide for the eq-
uitable division and apportionment of the use of the waters
of the Pecos River” and “remove causes of present and fu-
ture controversies.” Art. I, 63 Stat. 160.
Because of the irregular flow of the Pecos River, the Com-
pact does not enumerate a specific amount of water that
New Mexico must deliver to Texas each year. Rather, Arti-
cle III(a) of the Compact provides that “New Mexico shall
not deplete by man’s activities the flow of the Pecos River
at the New Mexico-Texas state line below an amount which
will give to Texas a quantity of water equivalent to that
Cite as: 592 U. S. ____ (2020) 3
Opinion of the Court
available to Texas under the 1947 condition.” Id., at 161.
Article VI(c) of the Compact in turn prescribes a method-
ology to implement Article III(a) and determine whether
New Mexico has met its annual delivery obligation: “the
inflow-outflow method.” Id., at 163. Roughly speaking, the
inflow-outflow method looks at how much water is in the
River in New Mexico, which in turn helps determine how
much water New Mexico must allow to flow into Texas.
In 1987, after a number of early disputes, this Court de-
termined that New Mexico was not allowing sufficient wa-
ter to flow into Texas and was therefore breaching its Arti-
cle III(a) obligations. Texas v. New Mexico, 482 U.S. 124,
127–128. The Court issued a decree setting forth the
States’ rights and duties. Id., at 135. In addition, in light
of the States’ “natural propensity” to disagree, the Court
decided to appoint a disinterested River Master “to make
the calculations provided for in this decree, annually and as
promptly as possible as data are available.” Id., at 134.
In 1988, the Court appointed Neil S. Grigg as River Mas-
ter, and he continues to serve in that position. Texas v. New
Mexico, 485 U.S. 388, 394 (per curiam). The Court also is-
sued an amended decree. The amended decree requires the
River Master to annually calculate: (i) New Mexico’s deliv-
ery obligation; (ii) any shortfall or overage based on what
New Mexico actually delivered; and (iii) the net shortfall, if
any, after subtracting any overages accumulated in previ-
ous years. Id., at 391.
In making those calculations, the River Master must
abide by the River Master’s Manual, which the Court de-
scribed as “an integral part of this Decree.” Id., at 389; see
also id., at 391. New Mexico ordinarily receives credit only
for water that actually makes its way to Texas. But there
are exceptions. Sometimes, as in this case, water may be
stored in New Mexico at Texas’s request. Section C.5 of the
River Master’s Manual addresses that situation. It is titled
“Texas Water Stored in New Mexico Reservoirs.” App. to
4 TEXAS v. NEW MEXICO
Opinion of the Court
Texas’s Motion for Review 37a. As relevant here, §C.5 pro-
vides:
“If a quantity of the Texas allocation is stored in facili-
ties constructed in New Mexico at the request of Texas,
then . . . this quantity will be reduced by the amount of
reservoir losses attributable to its storage, and, when re-
leased for delivery to Texas, the quantity released less
channel losses is to be delivered by New Mexico at the
New Mexico-Texas state line.” Ibid. (emphasis added).
Procedurally, the decree (i) directs the River Master to
deliver an annual preliminary report to the States by May
15; (ii) requires the States to submit any objections prior to
June 15; (iii) specifies that the River Master deliver a final
report by July 1; and (iv) mandates that a State file any
request for review of the final report in this Court within 30
days of the final report. Texas, 485 U.S., at 391, 393. Each
State appoints a single Pecos River Commissioner to repre-
sent the State’s interests.
B
In the fall of 2014, Tropical Storm Odile caused heavy
rainfall in the Pecos River Basin. The rain quickly filled a
Texas reservoir known as Red Bluff Reservoir. Red Bluff
lies just south of the New Mexico-Texas border along the
Pecos River, about 50 miles west of Kermit, Texas.
In November 2014, to prevent flooding, Texas’s Pecos
River Commissioner wrote to his counterpart Commis-
sioner in New Mexico: “[I]t is my request that New Mexico
store Texas’ portion of the flows until such time as they can
be utilized in Red Bluff Reservoir.” App. to Texas’s Motion
for Review 61a. In response, New Mexico’s Commissioner
agreed that water would be stored at the Brantley Reser-
voir in New Mexico, a reservoir owned by the United States.
But he also explained that the water “belongs to Texas” and
Cite as: 592 U. S. ____ (2020) 5
Opinion of the Court
that “[b]ut for Texas’ request, New Mexico would have re-
leased” the water “to the Texas state line.” Id., at 63a. The
New Mexico Commissioner added that “[e]vaporative losses
. . . should thus be borne by Texas.” Ibid.
Beginning in August 2015, the water was finally released
to Texas. But there was a problem: During the time that
the water was stored in New Mexico, a significant amount
of water (approximately 21,000 acre-feet) evaporated.
During the early months of 2015, Texas and New Mexico
discussed how to account for that evaporated water under
the Compact. But they did not reach an agreement. In May
2015, the River Master issued his preliminary report for
2014. The preliminary report did not account for the evap-
orated water, but instead explained that the States would
be “evaluating the issue and sending a recommendation
about how to proceed.” App. to State of New Mexico’s Re-
sponse 38.
The States still had not agreed on a course of action as of
the July 1, 2015, deadline for the River Master’s final re-
port. Because the States had not submitted a joint pro-
posal, the final report reiterated that the dispute over the
water would be resolved later. In a section titled “Pending
Issues,” the report explained that the “States can reach
agreement” or, if not, either “State can initiate a motion to
be considered by the River Master.” Id., at 61.
Importantly, neither State objected to the preliminary or
final reports for 2014. In other words, neither State op-
posed the ongoing procedure outlined by the River Master
for resolving this dispute. In the months and years that
followed, the States continued to toil away on a joint pro-
posal for the River Master. But the negotiations between
the States eventually broke down, and in 2018, New Mexico
filed a motion with the River Master seeking delivery credit
for the evaporated water.
In September 2018, as relevant here, the River Master
6 TEXAS v. NEW MEXICO
Opinion of the Court
ruled in favor of New Mexico. First, he rejected Texas’s ar-
gument that New Mexico had waited too long to file its mo-
tion for credit for the evaporated water. He stated that “dis-
cussions about the flood and accounting for it equitably
were continuous from the time the flood occurred until the
present”; that the States “knew from the time of the flood
that such an adjustment would be required”; and that the
States had not previously expressed any urgency about re-
solving the matter. App. to Texas’s Motion for Review
269a–270a.
Second, on the merits, the River Master concluded that
the evaporated water was “Texas Water Stored in New
Mexico Reservoirs” under §C.5 of the River Master’s Man-
ual. Applying that provision of the Manual, the River Mas-
ter decided that New Mexico was entitled to delivery credit
for the evaporated water.1
In the wake of the River Master’s decision, Texas invoked
this Court’s original jurisdiction and filed a motion for re-
view of the River Master’s determination.
II
Texas first argues that New Mexico’s 2018 motion to the
——————
1 We note four aspects of the River Master’s decision that are not at
issue here. First, the River Master determined that these stored waters
were not “unappropriated flood waters” for purposes of the Compact.
Art. III(f ), 63 Stat. 161. Neither State challenges that determination.
Second, the River Master ruled that the States should be equally charged
for evaporation that occurred before March 1, 2015, because public safety
concerns in both States counseled against releasing the water before that
date. That aspect of the River Master’s decision is likewise not at issue
in this Court. Third, in ruling for New Mexico, the River Master did not
rely on Article XII of the Compact, which applies to “consumptive use of
water by the United States.” Id., at 165. Although Texas asks us to
overturn the River Master’s determination, Texas agrees that Article XII
does not apply here. We therefore need not address that provision.
Fourth, the River Master amended the Manual. That amendment does
not affect our resolution of this case, so we need not address it.
Cite as: 592 U. S. ____ (2020) 7
Opinion of the Court
River Master for credit for the evaporated water was un-
timely. According to Texas, New Mexico filed the motion
after expiration of the amended decree’s 30-day deadline for
a State to file objections to the relevant preliminary re-
port—a deadline that in this case would have expired sev-
eral years ago. See Texas, 485 U.S., at 391.
Texas’s argument disregards the history of the proceed-
ings in this case. Both States agreed to postpone the River
Master’s resolution of the evaporated-water issue while
they negotiated and sought an agreement. The River Mas-
ter’s annual reports in turn repeatedly explained that the
States were trying to negotiate a solution to the issue. Nei-
ther State objected to the negotiation procedure. Texas can-
not now run away from the procedure that it agreed to.
Texas responds that the amended decree’s deadlines for
objections are jurisdictional, meaning that the River Mas-
ter and the States could not postpone the deadlines for ob-
jecting to the reports. But those time limits are plainly not
jurisdictional. Among other things, the time limits do not
“ ‘speak in jurisdictional terms or refer in any way to the
jurisdiction’ ” of this Court. Henderson v. Shinseki, 562
U.S. 428, 438 (2011) (quoting Zipes v. Trans World Air-
lines, Inc., 455 U.S. 385, 394 (1982)).
We proceed to the merits.
III
On the merits, Texas contends that it should receive
credit for the water that evaporated while New Mexico was
storing the water. New Mexico and the United States argue
that Texas is not entitled to credit because the water was
stored in New Mexico at Texas’s request. We agree with
New Mexico and the United States.
Recall that Article VI(c) of the Compact provides that “the
inflow-outflow method . . . shall be used” to calculate New
Mexico’s Article III(a) delivery obligation. 63 Stat. 163. To
implement the Compact, as we have explained, this Court’s
8 TEXAS v. NEW MEXICO
Opinion of the Court
1988 amended decree adopted the River Master’s Manual,
which elaborates on how to make the proper calculations.
See Texas, 485 U.S., at 389 (describing the Manual as “an
integral part of this Decree”). In particular, since 1988, the
Manual has included §C.5, which states:
“If a quantity of the Texas allocation is stored in facili-
ties constructed in New Mexico at the request of Texas,
then . . . this quantity will be reduced by the amount of
reservoir losses attributable to its storage, and, when re-
leased for delivery to Texas, the quantity released less
channel losses is to be delivered by New Mexico at the
New Mexico-Texas state line.” App. to Texas’s Motion
for Review 37a (emphasis added).
We agree with the River Master that the text of §C.5 of
the Manual easily resolves this case. Texas’s Pecos River
Commissioner asked that the water be stored at a facility
in New Mexico when, in November 2014, he sent New Mex-
ico’s Commissioner an e-mail with the plain-
spoken subject line “Texas request for storage.” Id., at 61a.
In that e-mail, Texas requested that New Mexico hold
Texas’s “portion of the flows until such time as they can be
utilized in Red Bluff Reservoir.” Ibid. New Mexico did so.
But New Mexico was careful to remind Texas that the water
“belongs to Texas,” and that, “[b]ut for Texas’ request, New
Mexico would have released” the water “to the Texas state
line.” Id., at 63a. New Mexico also added (correctly, as it
turns out) that “[e]vaporative losses . . . should thus be
borne by Texas.” Ibid.
The text of §C.5 and the record evidence of the States’
correspondence establish that New Mexico is entitled to de-
livery credit for the water that evaporated while New Mex-
ico was storing the water at Texas’s request.
In response, Texas offers various arguments, but none is
persuasive.
Cite as: 592 U. S. ____ (2020) 9
Opinion of the Court
First, Texas suggests that the stored water was not actu-
ally part of the “Texas allocation” referred to in §C.5 of the
Manual. But under that provision, Texas’s “allocation” is
the amount of water that Texas would have received if the
water had not been stored in New Mexico. See Compact,
Art. III(a), 63 Stat. 161 (entitling Texas to the “quantity of
water equivalent to that available to Texas under the 1947
condition”); Art. VI(c), id., at 163 (requiring the use of the
“inflow-outflow method”). Here, Texas requested that New
Mexico store water that otherwise would have flowed across
the state line and counted toward Texas’s allocation. The
stored water was therefore part of Texas’s allocation under
§C.5.
Second, Texas asserts that New Mexico did not “store”
the water for purposes of §C.5. Texas suggests that the
term “stored” in that provision means holding the water
long-term for beneficial use. But §C.5 of the Manual does
not purport to define “stored” in any way other than its or-
dinary meaning of holding water for Texas. Consistent
with that ordinary meaning, the States regularly used var-
iations of the term “store” to describe the storage of the wa-
ter in this case. Indeed, Texas’s initial request to New Mex-
ico came in an e-mail with the hard-to-misunderstand
subject line “Texas request for storage.” App. to Texas’s Mo-
tion for Review 61a. For purposes of §C.5, New Mexico
stored the water.
Third, Texas contends that it did not request that the wa-
ter be stored in New Mexico after March 2015. Therefore,
according to Texas, any evaporation that occurred from
March 2015 until the water was released to Texas in Au-
gust 2015 should be charged to New Mexico. But Texas in-
itially requested storage in November 2014. Even as late
as July 2015, shortly before the water was released, Texas
still had not requested the release of the water. Because
Texas did not rescind its request for storage or otherwise
ask for release before August 2015, the River Master did
10 TEXAS v. NEW MEXICO
Opinion of the Court
not err in awarding New Mexico delivery credit for evapo-
ration that occurred after March 2015.
* * *
The water was stored in New Mexico at the request of
Texas. Some of the water then evaporated before it was re-
leased to Texas. Under those circumstances, as the River
Master correctly concluded, New Mexico is entitled to deliv-
ery credit for the evaporated water. That result is both le-
gally accurate and entirely fair. We deny Texas’s motion
for review.2
It is so ordered.
JUSTICE BARRETT took no part in the consideration or de-
cision of this case.
——————
2 The Court has previously stated that the River Master’s determina-
tions are reviewed only for clear error. Texas v. New Mexico, 485 U.S.
388, 393 (1988) (per curiam) (a final determination “shall be subject to
review by this Court only on a showing that the Final Determination is
clearly erroneous”). Here, New Mexico prevails even under de novo re-
view, so the standard of review does not affect our judgment in this case.
Cite as: 592 U. S. ____ (2020) 1
ALITO, J., concurring in part
Opinion and,dissenting
of ALITO J. in part
SUPREME COURT OF THE UNITED STATES
TEXAS v. NEW MEXICO
ON MOTION FOR REVIEW OF THE RIVER MASTER’S
FINAL DETERMINATION
No. 65, Orig. Decided December 14, 2020
JUSTICE ALITO, concurring in the judgment in part and
dissenting in part.
I agree with the Court’s rejection of Texas’s argument
that New Mexico forfeited any objection to the River Mas-
ter’s 2014 report because it did not file an objection by the
deadline imposed by the amended decree. On this issue,
there were violations all around. The River Master violated
the deadlines imposed by the amended decree for filing his
reports. See Texas v. New Mexico, 485 U.S. 388, 391 (1988)
(per curiam); App. to State of New Mexico’s Response 61.
New Mexico did not file its objections in time, see Texas v.
New Mexico, 485 U.S., at 391; App. to State of New Mex-
ico’s Response 38, 59–61, and Texas essentially acquiesced
for months, if not years, see Texas’s Motion for Review 9;
App. to Texas’s Motion for Review 269a. Under the circum-
stances, Texas forfeited its objection. Going forward, the
States and the River Master should take better care to
abide by the terms of the amended decree.
On the question whether the River Master properly allo-
cated the water that evaporated, I would vacate and re-
mand, with instructions to the River Master to redo his
analysis in accordance with the relevant terms of the
amended decree and the manual. In sanctioning the River
Master’s handling of this issue, the Court ignores critical
facts. The decision to store the water, as well as the deci-
sion eventually to release it, was made by the federal Bu-
reau of Reclamation. Id., at 68a–69a, 236a; App. to State of
New Mexico’s Response 93. The Federal Government as-
serts that the water was held for flood control purposes,
2 TEXAS v. NEW MEXICO
ALITO, J., concurring in part
Opinion and,dissenting
of ALITO J. in part
Brief for United States as Amicus Curiae 7–8; App. to
Texas’s Motion for Review 68a. And, because Texas was not
a party to a contract for storage, it appears that it would
have been unlawful for the federal authorities to store the
water simply because Texas requested that they do so. Id.,
at 68a; see also Warren Act, 43 U.S. C. §523.
In light of these facts, the relevance of Texas’s request for
storage and New Mexico’s agreement with that request is
unclear. Perhaps the States’ exchange of e-mails should be
seen as simply an agreement that the Bureau should hold
the water to prevent flooding. Perhaps the River Master
thought that the Bureau acted ultra vires and stored the
water for all or part of the time in question simply because
Texas so requested. In any event, it is necessary to fit to-
gether in a coherent picture the actions taken by the federal
and state authorities. I would instruct the River Master to
tackle that task in the first instance on remand.
Unless the River Master determines that the water was
not held for flood control purposes for the entirety of the
time in question, it should analyze how evaporative losses
of water kept for those purposes should be treated. There
are several possibilities.
One is that the water constituted “unappropriated flood
waters.” Pecos River Compact, Art. II(i), 63 Stat. 161; see
also Art. III(f ), ibid.; Art. VI(d), id., at 164. The River Mas-
ter has already held that the water did not fall into this cat-
egory, and neither State disputes that finding. See Texas’s
Motion for Review 13; New Mexico’s Response 13–14. Un-
less the River Master or the States have second thoughts on
remand, that possibility can be ruled out.
Another possibility is that evaporation of the water in
question represented “consumptive use” by the United
States. Art. XII, 63 Stat. 165. If that is so, the Compact
specifies how such consumptive use is to be handled. Ibid.
And a third possibility is that the water does not fall into
either of the above categories.
Cite as: 592 U. S. ____ (2020) 3
ALITO, J., concurring in part
Opinion and,dissenting
of ALITO J. in part
Finally, I would hold that the River Master’s amendment
to the manual, insofar as it changed the deadlines imposed
by the amended decree, is invalid. The River Master does
not have the authority to alter the amended decree. See
Texas v. New Mexico, 485 U.S., at 391. The Court declines
to reach this question because it concludes that it has no
effect on the principal issues before us, but I would clarify
the status of this amendment so that the River Master will
conform to the terms of the amended decree going forward.
By declining to reach this question, the Court may be invit-
ing future problems.