Justices tee up arguments in water wars, rebuff Blankenship

By Amanda Reilly | 10/10/2017 01:15 PM EDT

The Supreme Court today said it will hold oral arguments in two major battles among states over water rights.

Texas and New Mexico are battling over water rights in the Rio Grande Basin, shown here at the U.S.-Mexico border.

Texas and New Mexico are battling over water rights in the Rio Grande Basin, shown here at the U.S.-Mexico border. Good Free Photos

The Supreme Court today said it will hold oral arguments in two major battles among states over water rights.

In one case, Texas argues that New Mexico is violating the Rio Grande Compact by diverting water before it reaches the Lone Star State. The other is part of a long-running interstate water war between Florida and Georgia.

Justice said they will hear arguments in both cases "in due course."


The conflict between Texas and New Mexico involves a 1938 compact approved by Congress to apportion water in the Rio Grande Basin.

Texas says the compact mandates the diversion of a certain amount of water to New Mexico’s Elephant Butte Reservoir. The state argues the water must be allowed to flow from there unimpeded through southern New Mexico into Texas.

But Texas, where rapid population growth and drought conditions have put a strain on water supplies, says New Mexico is illegally diverting water before it crosses the border.

Although the United States is not a signatory to the compact, the Obama administration had filed court documents supporting Texas’ claim.

The government says it wants to both protect its obligation to deliver water to Mexico and make sure Texas gets its fair share.

New Mexico moved to dismiss the suit for failure to state a claim under the 1983 compact’s terms. The state says the deal didn’t require it to guarantee water deliveries to the Texas border or to prevent diversions after ensuring water gets to the Elephant Butte Reservoir.

New Mexico says its only obligation is to deliver water to the reservoir. From there, the state argues its laws govern distribution within its borders.

But the Land of Enchantment suffered a blow when a special master appointed by the court, A. Gregory Grimsal, recommended that justices deny its motion.

"The equitable apportionment achieved by the 1938 Compact commits the water New Mexico delivers to Elephant Butte Reservoir to the Rio Grande Project," Grimsal wrote. "That water is not subject to appropriation or distribution under New Mexico state law" (Greenwire, Feb. 10).

The special master also recommended that the Supreme Court hear the U.S. claims even though the high court doesn’t have exclusive jurisdiction.

Today the court agreed to deny New Mexico’s motion to dismiss and said it would hold oral arguments on the United States’ and Colorado’s exceptions to the February special master report.

The Justice Department in July filed a brief taking issue with New Mexico’s statement that the compact and the special master’s report took away its sovereign immunity.

New Mexico is not required to cede ownership of Rio Grande water but rather is required to administer state law in accordance with the compact, DOJ argued.

And DOJ rejected Colorado’s argument the federal government is only allowed to intervene in the legal dispute to the extent needed to protect its treaty obligations with New Mexico (Greenwire, Aug. 15).

Southeast water wars

The Supreme Court today also said it would hold oral arguments in the ongoing Southeast water wars. In that case, a court-appointed special master has recommended that the Supreme Court deny Florida’s request that it put a cap on Georgia’s consumption of water in the Apalachicola-Chattahoochee-Flint River Basin.

The special master found that the court couldn’t show that a cap on Georgia water use would actually result in more water flowing into the Sunshine State.

That’s because the Army Corps of Engineers, which was not a party in the case, controls water flow in the river basin system through a system of five dams and four reservoirs. Florida has objected to the recommendation, arguing that Army Corps involvement is not essential to its case (Greenwire, June 6).

Blankenship conviction upheld

Justices today denied dozens of other petitions, including former coal executive Don Blankenship’s attempt to overturn his conviction for mine safety violations.

Don Blankenship. Photo credit: Brianhayden1980/Wikipedia
Don Blankenship. | Brianhayden1980/Wikipedia

Blankenship was convicted for conspiring to violate federal mine safety standards following the 2010 Upper Big Branch mine explosion in West Virginia and sentenced to a year in prison. The 2010 mine explosion killed 29 miners and was the worst such disaster in decades.

Blankenship appealed the conviction to the 4th U.S. Circuit Court of Appeals, which upheld the decision. He took his appeal to the Supreme Court after his release from prison.

The former CEO argued in part that a lower-court trial judge erred when instructing a jury to convict him for his failure to prevent others from violating mine safety laws and that the lower courts mistook "reckless disregard of the law" for "criminal willfulness."

DOJ, though, had urged the Supreme Court to uphold the conviction. "The Upper Big Branch mine had a history of safety problems," DOJ said in an August court filing (Greenwire, Aug. 30).

The government wrote, "Petitioner knew about the safety problems at Upper Big Branch because he maintained ‘close supervision of mine operations and staffing.’"