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First Interim Report of the Special Master

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No. 141, Original ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- STATE OF TEXAS, Plaintiff, v. STATE OF NEW MEXICO and STATE OF COLORADO, Defendants. --------------------------------- --------------------------------- On New Mexico’s Motion To Dismiss Texas’s Complaint And The United States’ Complaint In Intervention And Motions Of Elephant Butte Irrigation District And El Paso County Water Improvement District No. 1 For Leave To Intervene --------------------------------- --------------------------------- FIRST INTERIM REPORT OF THE SPECIAL MASTER --------------------------------- --------------------------------- A. GREGORY GRIMSAL Special Master 201 St. Charles Avenue Suite 4000 New Orleans, LA 70170 (504) 582-1111 February 9, 2017 ================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM i TABLE OF CONTENTS Page Table of Authorities ............................................. xiv I. Introduction ............................................... 4 II. Background Principles of Water Law ........ 9 A. The Doctrine of Prior Appropriation .... 9 B. The Doctrine of Equitable Apportion- ment ..................................................... 23 III. The Historical Context: Events Leading to the Ratification of the 1938 Compact ........ 31 A. The Geography of the Upper Rio Grande Basin ....................................... 32 B. The Natural Behavior of the Rio Grande Lends Itself to Boundary and Resource Disputes ............................... 34 1. The Treaty of Guadalupe Hildago creates the International Boundary Commission to handle boundary disputes ........................................... 34 2. Resource disputes lead to a plan for an international dam and reservoir on the Rio Grande ........................... 38 3. The Republic of Mexico lodges a for- mal claim for damages alleging misappropriation of water from the Rio Grande by United States citi- zens ................................................. 43 ii TABLE OF CONTENTS – Continued Page 4. The Harmon Doctrine is rejected in favor of referring the international dispute to the International Bound- ary Commission for amicable solu- tions ................................................ 49 5. A competing plan for a privately funded reservoir and dam on the Rio Grande interferes with the ne- gotiation of a convention between the United States and Mexico ........ 57 C. Legislative Attempts Toward Solving the Problems Regarding Reclamation of the Western Arid States, Including the Equitable Distribution of the Wa- ters of the Rio Grande ......................... 67 1. The debate between cession versus a comprehensive federal scheme for reclamation of western arid lands leads to the 1902 Reclamation Act and the creation of the Reclamation Service ............................................ 67 2. Congress establishes the Rio Grande Project operated by Reclamation ..... 92 3. Irrigation districts are established to guarantee the feasibility of the Rio Grande Project ......................... 107 4. An international convention settles Mexico’s claim for damages due to alleged misappropriation of Rio Grande waters by U.S. citizens ....... 110 iii TABLE OF CONTENTS – Continued Page D. The Completion and Operation of the Rio Grande Project .............................. 112 E. The 1929 Interim Rio Grande Com- pact ...................................................... 116 1. The Rio Grande Compact Commis- sion is established to address the 1896 embargo still in force ............. 116 2. The Secretary of the Interior lifts the 1896 embargo, causing compact negotiations to break down ............ 124 3. A temporary compact is negotiated .... 125 F. The 1938 Rio Grande Compact ........... 133 1. The Rio Grande Compact Commission reconvenes on the eve of the expiration of the 1929 Interim Compact ............. 133 2. The National Resources Committee is called upon to triage and assist in the resolution of the interstate water dispute in the Upper Rio Grande Basin .................................. 136 3. A final compact apportioning Rio Grande waters is signed ................. 156 4. Ratification of the 1938 Compact proves difficult ................................ 170 IV. New Mexico’s Motion to Dismiss Texas’s Complaint .................................................. 187 A. Standard of Review ............................. 191 iv TABLE OF CONTENTS – Continued Page B. Texas Has Stated a Claim Under the Unambiguous Text and Structure of the 1938 Compact ................................ 194 1. The text of the 1938 Compact re- quires New Mexico to relinquish control of Project water perma- nently once it delivers water to the Elephant Butte Reservoir ............... 195 2. The structure of the 1938 Compact integrates the Rio Grande Project wholly and completely, thereby protecting both deliveries to and releases from Elephant Butte Res- ervoir ............................................... 198 C. The Purpose and History of the 1938 Compact Confirm the Reading That New Mexico Is Prohibited from Recap- turing Water It Has Delivered to the Rio Grande Project After Project Wa- ter Is Released from the Elephant Butte Reservoir ................................... 203 D. Application of the Supreme Court’s Doctrine of Equitable Apportionment Also Prohibits New Mexico from Re- capturing Project Water After That Water Is Released from the Elephant Butte Reservoir Through the Admin- istration of the Rio Grande Project ..... 210 V. New Mexico’s Motion to Dismiss the United States’ Complaint in Intervention .............. 217 v TABLE OF CONTENTS – Continued Page A. The United States’ Litigation Roles Within Original Actions Resolving In- terstate Stream Disputes .................... 220 B. The 1938 Compact Does Not Trans- form the United States’ Federal Recla- mation Claims into Compact Claims By Virtue of Its Utilization of the Pro- ject to Effect the Apportionment of Rio Grande Waters to Texas and New Mex- ico ......................................................... 229 C. The Court Should Nevertheless Exer- cise Its Discretion to Extend Its Origi- nal, But Not Exclusive, Jurisdiction Under 28 U.S.C. § 1251(b)(2) to Hear the United States’ Project Claims Against New Mexico ............................ 231 VI. Elephant Butte Irrigation District’s Mo- tion to Intervene ........................................ 237 A. The Applicable Legal Standard for In- tervention ............................................ 239 B. EBID Has Not Met the Standard for Intervention ......................................... 244 1. EBID’s motion to intervene is pro- cedurally deficient .......................... 247 2. EBID fails to satisfy its burden to establish a compelling interest that is unlike the interests of other citi- zens of the State ............................. 251 vi TABLE OF CONTENTS – Continued Page 3. EBID has not rebutted the pre- sumption that New Mexico ade- quately represents EBID’s interests in this litigation .............................. 259 4. Practical considerations militate against permitting EBID to inter- vene ................................................. 265 C. Conclusion ........................................... 267 VII. El Paso County Water Improvement Dis- trict No. 1’s Motion to Intervene ............... 267 A. The Applicable Legal Standard for In- tervention ............................................ 270 B. EP No. 1 Has Not Met the Standard for Intervention ................................... 270 1. EP No. 1 fails to satisfy its burden to establish a compelling interest that is unlike the interests of other citizens of the State ........................ 270 2. EP No. 1 has not rebutted the pre- sumption that Texas adequately represents EP No. 1’s interests in this litigation .................................. 275 C. Conclusion ........................................... 277 APPENDICES Act of May 31, 1939, ch. 155, 53 Stat. 785 ......... APP. A Map of Rio Grande Basin ................................... APP. B vii TABLE OF CONTENTS – Continued Page Map of Rio Grande Project ................................. APP. C Proposed Order ................................................... APP. D INDEX OF MATERIAL PROVIDED DVD Doc. ON DVD Letter from J.A. Breckons to Sen. F.E. Warren (Apr. 3, 1902), Francis E. Warren Papers, Box 5, Folder 3, Am. Heritage Ctr., Univ. of Wyo- ming .......................................................... DVD Doc. 1 The Official Proceedings of the Twelfth National Irrigation Congress Held at El Paso, Texas, Nov. 15-18, 1904 (Guy Elliott Mitchell, ed. 1905) ......................................................... DVD Doc. 2 Rio Grande Compact Commission, Proceedings of the Rio Grande Compact Commission Held in Santa Fe, New Mexico, Dec. 2-3, 1935, in Rio Grande Compact Commission Records, 1924-41, 1970, Dolph Briscoe Center for American History, The University of Texas at Austin, Box 2F463 .................................... DVD Doc. 3 Rio Grande Compact Commission, Proceedings of the Rio Grande Compact Commission Held in Santa Fe, New Mexico, Mar. 3-4, 1937, in Rio Grande Compact Commission Records, 1924-41, 1970, Dolph Briscoe Center for American History, The University of Texas at Austin, Box 2F463 .................................... DVD Doc. 4 viii TABLE OF CONTENTS – Continued Page Rio Grande River Compact Commission, Pro- ceedings
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