The Supreme Court/The Supreme Court.iso/pc/ascii/misc/109orig.cd

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Subject: No. 109, Orig. -- CONCUR/DISSENT, OKLAHOMA v. NEW MEXICO





SUPREME COURT OF THE UNITED STATES


No. 109, Orig.



STATES OF OKLAHOMA and TEXAS, PLAINTIFFS v. STATE OF NEW MEXICO

on exceptions to the report of the special master

[June 17, 1991]



    Chief Justice Rehnquist, with whom Justice O'Connor, Justice Scalia,
and Justice Kennedy join, concurring in part and dissenting in part.

    An interstate compact, though provided for in the Constitution, and
ratified by Congress, is nonetheless essentially a contract between the
signatory States.  The Court's opinion overruling New Mexico's objections
to the Report of the Special Master varies the terms of a contract to which
the States of Oklahoma, New Mexico, and Texas freely agreed.  I do not
believe it is within the Court's power to do this, and I therefore dissent
from Part III of the Court's opinion which restricts New Mexico's use of
waters that spill over the Conchas Dam.  I concur in Parts I, II, and IV of
the Court's opinion.
    The Canadian River traverses three States.  It originates in the high
country of northern New Mexico, flowing southeast from there into the Texas
Panhandle.  New Mexico has erected two dams on the River, the Conchas Dam
and the Ute Dam, which provide irrigation water for farming and municipal
water for the city of Tucumcari, New Mexico.  In Texas, the Sanford Project
diverts water to serve the municipal and industrial requirements of Texas
cities throughout the Texas Panhandle region, from Amarillo to Lubbock.
The river flows eastward from this Project across the Texas Panhandle and
into Oklahoma, and thence southeasterly throughout almost the entire State
of Oklahoma until it joins the Arkansas River in the Eufala Reservoir a few
miles west of Fort Smith, Arkansas.
    In 1950, New Mexico, Texas, and Oklahoma convened to draft the Canadian
River Compact which apportioned the Canadian's waters in a manner that they
hoped would serve New Mexico's and Texas' already substantial needs while
anticipating the future needs of those States and Oklahoma.  Article IV of
the Compact, which governs the allocation of water to New Mexico, provides
as follows:

"(a) New Mexico shall have free and unrestricted use of all waters
originating in the drainage basin of Canadian River above Conchas Dam.
"(b) New Mexico shall have free and unrestricted use of all waters
originating in the drainage basin of Canadian River in New Mexico below
Conchas Dam, provided that the amount of conservation storage in New Mexico
available for impounding these waters which originate in the drainage basin
of Canadian River below Conchas Dam shall be limited to an aggregate of two
hundred thousand (200,000) acre-feet."  App. to Report of Special Master
4a.


    I part company with the majority's interpretation of this Article,
based on my view that this provision means what it says.  By its express
terms, Article IV places no restrictions on New Mexico's use of waters
originating above Conchas Dam.  It imposes only two restrictions on its use
of the waters originating in the drainage basin of the Canadian River below
Conchas Dam: first, New Mexico's enjoyment of these lower-basin waters is
restricted to waters located in New Mexico; second, New Mexico may allocate
no more than 200,000 acre-feet of its total storage capacity for the
conservation of these lower-basin waters.
    The Compact thus distinguishes between water "originating" in the lower
basin and water "originating" at or above the upper basin.  New Mexico
enjoys free and unrestricted use of the latter.  The ordinary understanding
of what it means for waters to "originate" in a basin is that they "arise"
or "com[e] into existence" in that location.  See 10 Oxford English
Dictionary 935-936 (2d ed. 1989).  Thus, according to the plain meaning of
Article IV(a), New Mexico may make unrestricted use of the Canadian River
waters that arise above Conchas Dam.  These waters may be stored, used, or
diverted for use without limitation.  Unlike the waters that enter the
Canadian River below the Conchas Dam, these waters may pass into the lower
basin without being subject to the 200,000 acre-feet conservation storage
restriction of Article IV(b).
    Despite the clear import of the Compact's terms, the Court concludes
that the Compact cannot mean what it says, and instead fashions a different
allocation than that which is literally described.  The Court concludes
that "the intent of the Compact drafters was to give New Mexico free and
unrestricted use of waters originating in the Canadian River drainage basin
above Conchas Dam only if the waters were `stored, used or diverted for use
at or above Conchas Dam.' "  Ante, at 9 (quoting Report of Special Master
59) (emphasis in original).  The emphasized terms do not appear anywhere in
the Compact, and reflect not the intent of the parties, but instead the
intent that the Court now imputes to them.  Although the Compact grants New
Mexico use of "all" waters originating above Conchas Dam, the Court reads
this to mean "some": specifically excluding water that eventually winds up
below Conchas dam.  Ante, at 10.  Accordingly, the Court holds that any
water found in the River below Conchas, including spills and seepage from
above Conchas Dam, is not subject to free and unrestricted use -- even
though it clearly originated above Conchas Dam.
    A compact is a contract among its parties.  Texas v. New Mexico, 482 U.
S. 124, 128 (1987).  Congressional consent elevates an interstate compact
into a law of the United States, yet it remains a contract which is subject
to normal rules of enforcement and construction.  Thus, "unless the compact
to which Congress has consented is somehow unconstitutional, no court may
order relief inconsistent with its express terms."  Texas v. New Mexico,
462 U. S. 554, 564 (1983).  Accordingly, where the terms of the compact are
unambiguous, this Court must give effect to the express mandate of the
signatory States.
    The Court asserts that we may rewrite the express terms of Article
IV(a) because of its understanding of the practical consequences of
faithfully applying that provision.  Ante, at 8-9.  The Court contends
that, if taken at its word, the Compact would permit New Mexico to lay
claim to any water originating above Conchas Dam, including tributaries
that arise in Colorado.  The Court further asserts that a literal
interpretation would permit New Mexico to then chase this water down, and
continue to claim access to it as it passes down through Texas and
Oklahoma.  Based on its view that the Compact could not have been drafted
to produce the implausible consequence that New Mexico could appropriate
Colorado's, Texas', and Oklahoma's waters, the Court abandons the literal
text of the Compact and casts off in search of a new interpretation of the
word "originating."  Ante, at 9-10.
    The Court's approach conjures up impractical consequences where none
exist.  The language of the Compact does not in any way support the notion
that Colorado (a State that did not even participate in the Compact) might
forfeit its waters to New Mexico.  Colorado's rights are not implicated by
the Compact at all.  Although a small portion of the Canadian River's
waters arise in Colorado, only New Mexico, Texas, and Oklahoma participated
in the Compact and are parties to it.  By its terms, the Compact allocates
only those rights over the interstate waters of the Canadian River
belonging to those three States.  See Art. X.  Thus, the Compact could not,
and did not purport to, allocate Colorado's portion of the Canadian River.
Any dispute between Colorado and the signatory States to this Compact must
be resolved outside the terms of the Compact, and there is no reason to
construe this Compact as though it purported to deal with Colorado's
claims.
    Similarly, Article V of the Compact dispels any concern that New
Mexico's rights under a literal reading of Article IV(a) extend to waters
originating above Conchas Dam that have left the state.  That provision
gives Texas "free and unrestricted use of all waters of [the] Canadian
River in Texas," subject to certain storage limitations.  The Compact gives
New Mexico no rights to recapture errant water that reaches Texas because
that water is then "in" Texas, and therefore subject to Texas' rights under
the Compact.  The majority's failure to reconcile Article V with Article IV
violates the ordinary rule of statutory and contract interpretation that
all provisions of a Compact must be read together in a meaningful manner.
See United States v. Utah, Nevada and California Stage Co., 199 U. S. 415,
423 (1905).
    Had the Compact's drafters intended to limit New Mexico's free and
unrestricted use of the Canadian River waters originating above Conchas Dam
in the manner announced today, they would certainly have done so more
directly.  For example, they might have drafted Article IV(a) to provide
that "the amount of conservation storage in New Mexico below Conchas Dam
shall be limited to an aggregate of 200,000 acre-feet."  But they did not.
Instead, they specifically agreed that only waters "which originate in the
drainage basin of [the] Canadian River below Conchas Dam" were to be so
restricted.  The only reasonable conclusion to draw from this is that they
intended the word "originating" to have some content.
    The Court's free-form exploration of the practical consequences of the
parties' agreement, and its reliance on evidence outside of the Compact to
introduce ambiguity into Compact terms, is both contrary to our precedents
and unfair to the parties.  When parties to a contract have expressed their
intent on a matter in unambiguous terms, we should not substitute our will
for their purpose.  Texas v. New Mexico, 462 U. S. 554, 564 (1983).  The
parties made an agreement, and have acted in reliance upon the terms of
that contract and settled principles of contract law.  The contract law
principles of all three States disallow recourse to evidence outside the
record under these circumstances.  In those jurisdictions, where the
language of an agreement clearly expresses the intent of the parties,
courts may not rely on extrinsic evidence to vary its terms.  See, e. g.,
Mercury Investment Co. v. F. W. Woolworth Co., 706 P. 2d 523, 529 (Okla.
1985); Hobbs Trailers v. J. T. Arnett Grain Co., 560 S. W. 2d 85, 87 (Tex.
1977); Trujillo v. CS Cattle Co., 109 N. M. 705, 709-710, 790 P. 2d 502,
506-507 (1990).  Even viewed as a federal statute, the Court's treatment of
the Compact's plain language is improper.  Congress gave its blessing to
this Compact, and in doing so, codified the agreement as federal law.  As
we stated in Arizona v. California, 373 U. S. 546, 565-566 (1963), "[w]here
Congress has . . . exercised its constitutional power over waters, courts
have no power to substitute their own notions of an `equitable
apportionment' for the apportionment chosen by Congress."
    Even if I agreed with the Court that it is appropriate in this case to
look outside the Compact to determine the meaning of Article IV(a), I would
not agree with its conclusion that the parties intended to include overflow
waters from the upper basin of the Conchas Dam within the term "waters
which originate in the drainage basin of Canadian River below Conchas Dam."
I do not find either piece of evidence relied upon by the Court to be
supportive of that position, let alone persuasive.
    The Court says that the Compact negotiators did not place any
limitation on the amount of storage of waters originating above the Conchas
Dam because they believed that those waters were already being fully used.
Accordingly, the Court reasons, the negotiators assumed that any future
development of the River's waters in New Mexico would necessarily occur
only below Conchas Dam, and that 200,000 acre-feet of storage rights would
be more than sufficient to satisfy those development needs.  Ante, at 13.
The Court concludes that "these circumstances," demonstrate that Texas and
Oklahoma could not have intended to permit New Mexico to impound any more
than the 200,000 acre-feet of water for conservation storage purposes below
Conchas Dam.  Ante, at 14.
    As a preliminary matter, the record simply does not bear out the
Court's view.  The only evidence that directly addresses the issue
establishes that the 200,000 acre-feet limitation was derived solely from
New Mexico's perceived requirements for Canadian River waters originating
in the lower basin.  The "Hill memorandum," authored by Raymond Hill,
Chairman of the Engineering Advisory Committee, and approved by the Compact
Commission at its final meeting on January 31, 1951, stated that the
storage limitation was directed only towards impoundment of "the flood
flows of Ute Creek and other minor tributaries of Canadian River entering
the stream below Conchas Dam and above any contemplated storage works on
Canadian River in Texas."  Plaintiff's Exh. 38, p. 3 (emphasis added).  The
storage limits thus appear to have been directed at waters entering New
Mexico below Conchas Dam but before the River enters Texas.  Indeed, a
letter from New Mexico's Commissioner, John Bliss, to Senator Anderson of
New Mexico, written the day after the Compact was signed, expressly noted
that the 200,000 acre-feet limitation did not apply to spills.  Plaintiff's
Exh. 28.  By contrast, there is no direct support whatsoever for the
Court's statement that the Compact's 200,000 acre-feet limitation on lower
basin waters was intended to apply to upper basin waters captured in the
lower basin.
    Even assuming that the Court's view of the facts is correct, I do not
see how these facts support its conclusion.  The Court observes that at the
time of the Compact, New Mexico had fully developed reliable supplies of
water above Conchas Reservoir, and thus there would be no purpose in
placing a limitation upon any increase in the amount of storage of those
waters.  The Engineering Advisory Committee determined that "above Conchas,
the available water supply has all been put to use -- any further
development above Conchas would deplete the supply available for Tucumcari
Project; thus future developments would emphasize the better utilization of
existing supplies."  Plaintiff's Exh. 109, p. 1.  This assessment, on its
face, refers to the usage of normal water flows and not to the specific
issue raised in this case, overflows and spills.  In asserting that further
development of the upper basin would draw on Tucumcari Project waters, the
Engineer Advisors did not contemplate spill waters or return flows from
Tucumcari.  As the Special Master himself concluded, "The most that can be
said about the Engineer Advisors' treatment of Conchas spills is that they
apparently did not project that they would recur with the frequency and
magnitude that they subsequently have."  Report of Special Master 67
(emphasis added).
    The Court also relies on the fact that a 1960 study by the Bureau of
Reclamation included outflows from Conchas Dam in estimating water supply
to Sanford Reservoir, Texas.  See Plaintiff's Exh. 102, pp. 64, 67, 70-71.
This too has no bearing on the intent of the parties to this Compact, or
the meaning of Article IV.  The Bureau published the final draft of its
report nearly a decade after the Compact was signed.  The Bureau's report
simply acknowledges that in light of the massive spills over Conchas Dam
that occurred in 1941 and 1942, it might be reasonable to assume that
occasional spills might contribute to the Sanford Project's water supply.
This conclusion does not favor one view or another about New Mexico's right
to capture some of the overflow from Conchas Dam, since it is clear that
New Mexico was physically incapable of capturing all of the overflow from
the massive floods that have occured twice this century.  The Bureau's
estimates merely reflect reality; they do not suggest that the Compact
requires waters flowing from Conchas spills to serve the Sanford Project
alone.
    Finally, putting aside the Court's dismissive treatment of the Compact
terms and the parties' expectations, today's decision makes little
practical sense.  The Court's decision will not protect the rights of the
downstream States, except to the extent that it will force New Mexico to
behave inefficiently in using its water.  Oklahoma and Texas do not dispute
that New Mexico could, if it desired, enlarge the reservoir behind the
Conchas Dam to capture all of the Canadian River's waters and dry up the
river beds of the downstream States.  Tr. of Oral Arg. 29, 33-34; ante, at
15.  The Court also acknowledges that the Compact gives New Mexico the
included right to capture additional waters at or above Conchas and then
divert them to downstream locations.  See ante, at 19, n. 12.  The Court's
construction, therefore, does not prevent New Mexico from capturing flood
waters and diverting them to projects below Conchas Dam; it merely forces
the State to take its rightful waters by means of costly, inefficient, and
wasteful engineering.
    The Canadian is an unpredictable river: for the first 36 years of the
Compact it lay dormant before it boiled over the Conchas Dam, spilling
several hundred thousand acre-feet of water into the lower basin.  The
Compact allocated this water.  New Mexico was entitled to keep as much as
it wished in modest storage facilities to recapture its upper basin waters.
All the rest would naturally flow down to Texas and Oklahoma.  The Court
today rewrites that simple allocation.  While rivers such as the Canadian
may be unpredictable, interpretation of contracts involving those rivers
should not be.  The Court frustrates settled expectations by rewriting the
Compact to mean something other than what its language says.  Accordingly,
I dissent from Part III of the Court's decision.

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