Sig Silber

What is the meaning of this and what are the Implications?

The case is No. 220141 

You can track the filings HERE and perhaps better yet HERE.

It is winding to a close and in my opinion the only result is that two Special Masters and a lot of attorneys have made a lot of money. But that is a different topic and I will write an article on the case when the Supreme Court makes its final decision.

The topic of this article is the Amici Curiae (Amici is the plural of Amicus) Brief by 23 states which is presented in its entirety in the body of this article. Some may have to click on “read more” to access the body of the article with the full filing.

Normally under Article III, Section 2, Clause 2 of the U.S. Constitution. only states are parties to a dispute among states.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

Due to what IMO was a misstep by the New Mexico Attorney General, The U.S. Solicitor General was asked to comment on whether the Supreme Court should give Texas the right to bring this case and this then led to the U.S. requesting the right to be an Intervenor and that right was granted.

Intervening is entry into a lawsuit by a third party into an existing civil case that was not named as an original party but has a personal stake in the outcome. The non-party who intervenes in a case is called an intervenor. But they are not a party to the case. It is a subtle difference but an important difference.

Recently the Parties to this case agreed on a settlement but the the U.S., an intervenor has objected to the settlement.  The disposition of that objection has yet to be decided.

23 States not involved in the litigation have submitted an Amici Curiae Brief sharing with the court their belief that the objections of the U.S. should be rejected.

So this raises two questions among others:

A. Why do they care?

B. What are the implications of their objection being accepted or rejected?

I am not an attorney. The full Amici Curiae brief is in the body of this article. But I will try to extract from that brief some of the objections raised to the U.S. intervening in disputes among states especially when they involve river compacts. The quotes below in many cases are from within a paragraph in the Brief so the line breaks may be different than in the Brief.

If a dispute arises regarding an interstate water
compact, the state parties to thecompact have the
authority to resolve these disputes among themselves.
State sovereignty and principles offederalism prevent
undue interference from theUnited States when the
United States is not a party to the compact.

The United States asserts an expanded federal
role in interstate water compact disputes
that, if accepted by the Court, would result
in the ability of the United States to insert itself into
the equitable apportionment and governance of water
among the States. Amici States have a strong interest
in avoiding that result.

States entering into compacts must have the abil-
ity to comply with, interpret, enforce, and defend their
negotiated agreements on behalf of their citizens with-
out undue interference from the United States.

The United States has no role in the
administration of state water to meet compact
obligations. The administration and distribution of
state water is a “core attribute of state sovereignty.”

In entering into interstate water compacts, States
do not presume that they are waiving or limiting their
sovereign rights with respect to the United States. It
is a “well-established principle that States do not
easily cede their sovereign powers,” and silence is not
construed as a waiver of sovereignty.

Unless a compacting State expressly cedes its
sovereign authority, the United States does not have
a role in the management of state water, including the
interpretation or enforcement of interstate water
compacts.

The United States cannot and should not be able
to interfere with the sovereign authority of the States
to manage their water by pursuing compact claims or
an apportionment of water that is different than that
agreed to by compacting States. Accordingly, to the ex-
tent the United States participates in the administra-
tion or use of state water, it must comply with state
law.

The United States’ Federal Water Project Does
Not Expand Its Limited Role in This Interstate
Water Compact Dispute.

In limited circumstances, the Court may permit
the federal government to intervene in compact suits
to defend “distinctively federal interests.” Texas, 583
U.S. at 413 (quoting Maryland, 451 U.S. at 745, n.21).
But such limited intervention does not include
authority to determine the apportionment of water
between States or management of water within
States.

Specifically, the United States seeks to insert itself
into the division of water among the States and into
the governance of state water within the borders of the
States. The United States argues it has a role in
determining Compact compliance regarding the
division of water between New Mexico and Texas and
in the appropriation and use of groundwater in New
Mexico.

The Court should reject the United States’ attempt
to expand its power in this way. If the Court accepts
the United States’ argument, the inevitable result
will be further efforts by the United States to insert
itself into the interpretation and enforcement of
other interstate water compacts. The Court should
reject this obvious affront to federalism and
States’ sovereign powers.

Nor can the United States justify its role in the
enforcement or interpretation of compact terms be-
cause there is a federal water project associated with
the Compact. See Exception at 30–34. Federal water
projects do not supersede interstate water compacts or
the States’ authority to manage their water to meet
compact obligations. The mere existence of a federal
water project associated with compact water does not
give the United States a role in the division of water
between States or in enforcing or interpreting terms
of an interstate water compact to which the United
States is not a party.

.

Federal law requires the United States to

comply with state law relating to the control,

appropriation, and distribution of water in federal

water projects.

.

This provision requires the federal government, in
operating reclamation projects, to comply with state
water law and state water allocations. Water stored in
federal water projects must be appropriated and man-
aged subject to state law. Further, through the
McCarran Amendment, the United States has waived
its sovereign immunity and defers to state law regard-
ing the determination and administration of water
rights for federal reclamation projects. 43 U.S.C.
§ 666. The fact that water subject to a compact is also
associated with a federal water project does not dimin-
ish the sovereign authority of the State parties to the
compact or give the United States expanded control
over the compact terms or distribution of water under
the compact.

.

That does not mean, however, that the United
States is without recourse. If the United States has a
claim regarding water appropriated to it in relation to
a federal water project, the United States, like all
other water right holders, may turn to state courts to
protect project water rights.

The existence of a federal water project does not
give the United States authority to interpose its pre-
ferred interpretation or enforcement of interstate wa-
ter compact terms.