Special Master Michael Melloy issued an Order dated March 31, 2020 dismissing all but two of New Mexico’s counterclaims in the ongoing original jurisdiction action regarding Rio Grande Compact (Compact) interpretation and enforcement.  In Texas v. New Mexico & Colorado, No. 141 Original, the State of Texas alleges that the State of New Mexico has, contrary to the purpose and intent of the Compact, allowed and authorized water intended for use in Texas to be intercepted and used in New Mexico.  The Supreme Court granted Texas’s motion for leave to file its complaint in 2014.  The United States intervened as a plaintiff in 2014.  In 2018 New Mexico filed nine counterclaims, including two Compact claims, as well as seven claims that address issues pertaining to a 2008 Operating Agreement for the Rio Grande Project, issues of Reclamation law, and other issues relating to contract enforcement or interpretation.  The Special Master’s Order limits the litigation to the “the larger issues of Compact interpretation and performance,” and dismisses the seven New Mexico counterclaims that implicate “potentially narrow errors in the management of the Rio Grande or attack[] particular contracts for the delivery of water.”

New Mexico’s counterclaims included claims against both the United States and Texas.  The Special Master dismissed each of the claims against the United States on basis of sovereign immunity.  The claims included allegations against the United States relating to the 2008 Operating Agreement, Rio Grande Project accounting, the Water Supply Act, and other Reclamation and contract law causes of action.  Special Master Melloy made clear that “this is not action to enforce a Reclamation contract where a waiver of sovereign immunity might be found in a Reclamation statute.”  He concluded that “[t]his original jurisdiction action, as accepted by the Court, is an action to interpret and enforce a Compact.”

As to New Mexico’s counterclaims against Texas, Special Master Melloy limited the remaining claims to those that are analogous to Texas’s complaint.  As a result of the Order, the remaining claims are limited to the respective states’ allegations relating to Compact interpretation and performance.  The Order also dismisses New Mexico’s affirmative defense of failure to exhaust administrative remedies.

On April 1, 2020, Special Master Melloy issued a separate order maintaining document and written discovery, but staying deposition discovery and the deadline for New Mexico to submit its rebuttal expert reports due to the COVID-19 emergency.

Somach Simmons & Dunn represents the State of Texas in this litigation.  For more information on this case, please contact Rich Deitchman at (916) 446-7979 or rdeitchman@somachlaw.com.

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