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Subject: No. 109, Orig. -- OPINION, OKLAHOMA v. NEW MEXICO




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
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]



    Justice White delivered the opinion of the Court.
    This case, an original action brought by the States of Oklahoma and
Texas against the State of New Mexico, arises out of a dispute over the
interpretation of various provisions of the Canadian River Compact
(Compact), which was ratified by New Mexico, Oklahoma, and Texas in 1951
and consented to by Congress by the Act of May 17, 1952, 66 Stat. 74.  Each
State has filed exceptions to a report submitted by the Special Master
(Report) appointed by this Court.

I
    The Canadian River  {1} is an interstate river which rises along the
boundary between southeastern Colorado and northeastern New Mexico, in the
vicinity of Raton, New Mexico.  From its headwaters, the Canadian River
flows south to the Conchas Dam in New Mexico, then generally east for 65
river miles to the Ute Reservoir in New Mexico, and then into the Texas
Panhandle.  After traversing the panhandle, the river flows into Oklahoma
where it eventually empties into the Arkansas River, a tributary of the
Mississippi.
    In the late 1930s, Congress authorized, and the Corps of Engineers
completed, the construction of Conchas Dam on the mainstream of the
Canadian River, approximately 30 miles northwest of Tucumcari, New Mexico.
Congress also authorized the Tucumcari Project, a federal reclamation
project designed to irrigate over 42,000 acres of land and serve the
municipal and industrial needs of Tucumcari, New Mexico.  The project lands
are situated southeast of Conchas Dam and are served by the Conchas Canal
which diverts water from Conchas Reservoir.  The project was completed in
1950.
    In 1949, the Texas congressional delegation proposed that Congress
authorize a massive Canadian River reclamation project, known as the
Sanford Project because of its proximity to Sanford, Texas, for the purpose
of serving the municipal and industrial requirements of 11 Texas cities in
the Texas panhandle region.  Legislation to authorize the Sanford Project
was introduced in the House of Representatives, along with a bill
authorizing New Mexico, Oklahoma, and Texas to negotiate an interstate
compact to equitably apportion the waters of the Canadian River.  The
legislation authorizing the States to enter into an interstate compact was
passed by Congress and the Canadian River Compact Commission was created.
The Compact Commission consisted of one commissioner from each State and
one federal representative.  Each commissioner and the federal
representative had the assistance of engineering advisors, a group
collectively known as the Engineering Advisory Committee.  This committee
submitted several proposals to the Compact Commission.  The final draft of
the Canadian River Compact was presented on December 6, 1950, and was
signed on that day by the members of the Compact Commission. {2}
    Congress enacted legislation authorizing the Sanford Project on
December 29, 1950, but as a result of an amendment proposed by the New
Mexico delegation, the bill specifically provided that actual construction
of the project could not commence until Congress consented to the Compact.
See 64 Stat. 1124, 43 U. S. C. MDRV 600c(b).  That consent was granted on
May 17, 1952, 66 Stat. 74, and the Sanford Dam, creating Lake Meredith
Reservoir with a capacity of over 1.4 million acre-feet of water, was
completed in 1964.  Lake Meredith is approximately 165 river miles east of
Ute Reservoir and is located north of Amarillo, Texas.  During the 1950's,
New Mexico selected a site on the Canadian River mainstream approximately
one mile west of Logan, New Mexico, and about 45 miles downstream from
Conchas Dam for the construction of Ute Dam and Reservoir.  Construction of
Ute Dam was completed in 1963 with an initial storage capacity of 109,600
acre-feet.  In 1982 New Mexico began construction to enlarge the reservoir,
and in 1984 the enlargement was completed, giving Ute Reservoir a capacity
of 272,800 acre-feet.  In 1984, the Reservoir's actual capacity to store
water was 246,617 acre-feet, the remaining capacity being occupied by silt.
The Special Master estimated that because of additional silting, reservoir
storage capacity was reduced to 241,700 acre-feet in 1987 and currently is
about 237,900 acre-feet.  Report of Special Master 16-17.
    As early as 1982, Oklahoma and Texas expressed concern that the
enlargement of Ute Reservoir would violate the 200,000 acre-feet limitation
in Article IV(b) of the Compact.  See n. 2, supra.  All attempts by the
Commission to resolve this budding dispute were unsuccessful, in large part
because any Commission action requires a unanimous vote and New Mexico
would not agree to the interpretation of the Compact proposed by Oklahoma
and Texas.  This litigation followed, with Oklahoma and Texas contending
that Article IV(b) of the Compact imposes a 200,000 acre-feet limit on New
Mexico's constructed reservoir capacity available for conservation storage
downstream from Conchas Dam, and that capacity for the so-called "desilting
pool" portion of Ute Reservoir was not exempt from the Article IV(b)
limitation because it was not allocated solely to "sediment control."
    In the spring of 1987, while the case was pending, the portion of the
Canadian River above Conchas Dam flooded, and a sizeable quantity of water,
approximately 250,000 acre-feet, spilled over Conchas Dam.  This was the
first major spill over Conchas Dam since 1941-1942, a spill which predated
the Compact.  New Mexico caught approximately 60 percent of the spill in
Ute Reservoir, which filled the reservoir to its capacity, and the
remaining 40 percent flowed on down the river.  As of June 23, 1988, Ute
Reservoir contained approximately 232,000 acre-feet of stored water, of
which some 180,900 acre-feet was alleged by New Mexico to be flood water
spilled from Conchas Dam earlier in 1987.  Report of Special Master 47.
    After New Mexico refused to count the spill waters stored in Ute
Reservoir for purposes of the 200,000 acre-feet limitation in Article
IV(b), Texas and Oklahoma filed a supplemental complaint in this case,
claiming that if the 200,000 acrefeet limitation applies to actual stored
water, then water spilling over Conchas Dam or seeping back from Tucumcari
project constitutes "waters which originate . . . below Conchas Dam" within
the meaning of Article IV(b).  New Mexico disputed all of these contentions
and argued that water which first enters the river above Conchas Dam is not
subject to the Article IV(b) limitation even if it is stored in Ute
Reservoir, or anywhere else in New Mexico below Conchas Dam.
    We referred Texas' and Oklahoma's complaint and supplemental complaint
in this original case to a Special Master.  484 U. S. 1023 (1988); 488 U.
S. 989 (1988).  After considering voluminous evidence, the written
submissions of the States, twice hearing extended oral argument on the
issues, and circulating a draft report to the States for their comments,
the Master filed a Report on October 15, 1990, making the following
recommendations relevant to our decision in this case:

    (1) Article IV(b) imposes a limitation on stored water, not physical
reservoir capacity.
    (2) Waters originating in the Canadian River Basin above Conchas Dam,
but reaching the mainstream of the Canadian River below Conchas Dam as a
result of spills or releases from Conchas Dam or seepage and return flow
from the Tu cumcari Project, are subject to the Article IV(b) limitation.
    (3) The issue whether and to what extent the water in the "desilting
pool" in Ute Reservoir should be exempt from the Article IV(b) limitation
should be referred to the Canadian River Compact Commission for good faith
negotiations and possible resolution.  The referral would be without
prejudice to later invoke the Court's jurisdiction if the issue cannot be
resolved within one year.
    (4) If the foregoing recommendations are approved, New Mexico will have
been in violation of Article IV(b) of the Compact since 1987, and the case
should be returned to the Special Master for determination of any injury to
Oklahoma and Texas and recommendations for appropriate relief.  Report of
Special Master 24-25.

    The Master also recommended that the Court use this case to articulate
various jurisdictional prerequisites and procedural guidelines for
application in future interstate compact litigation.  Id., at 26-34. {3}
    We ordered the Master's Report to be filed and set a briefing schedule,
498 U. S. --- (1990), and heard oral argument on the States' exceptions to
the Master's Report.  We now address those exceptions in turn.

II
    Oklahoma has filed an exception to the Master's recommendation in Part
VI of his Report that the Article IV(b) limitation on "conservation
storage" be interpreted to apply only to the quantity of water New Mexico
actually stores at Ute Reservoir for conservation purposes.  As of 1984,
Ute Reservoir had a storage capacity of approximately 272,800 acre-feet,
although it is conceded that not all of that capacity is chargeable as
existing for "conservation storage."  Some of the capacity is for purposes
excluded from the Compact definition of "conservation storage," such as for
sediment control.  Oklahoma contends that the term "conservation storage"
should be interpreted to apply to the physical capacity of reservoirs
located below Conchas Dam, a view which, if adopted, would result in a
finding that New Mexico has been in violation of Article IV(b) since at
least 1984 when the enlargement of Ute Reservoir was completed.
    The Special Master conceded, as do we, that Oklahoma's suggested
interpretation of Article IV(b)'s conservation storage limitation finds
some support in the plain language of the Compact definition of
"conservation storage" and in the language of Article IV(b) itself.  The
Compact defines "conservation storage" in pertinent part as "that portion
of the capacity of reservoirs available for the storage of water" for
various purposes and "excludes any portion of the capacity of reservoirs"
allocated to other purposes.  Art. II(d) (emphasis added).  Likewise,
Article IV(b) refers to "the amount of conservation storage in New Mexico
available for impounding these waters" (emphasis added).  However, other
provisions in the Compact appear to focus on stored water, not reservoir
capacity.  For example, Article V sets forth an elaborate formula for
determining the amount of water Texas may actually impound at any one time;
Article VII provides that the "Commission may permit New Mexico to impound
more water than the amount set forth in Article IV" (emphasis added); and
Article VIII requires each State to "furnish to the Commission at intervals
designated by the Commission accurate records of the quantities of water
stored in reservoirs pertinent to the administration of this Compact"
(emphasis added).
    We agree with the Special Master that nothing on the face of the
Compact indicates a clear intention to treat the New Mexico "conservation
storage" limitation differently than the Texas stored water limitation, and
we see no compelling justification for doing so.  In fact, several early
drafts of the Compact uniformly referred to stored water, and only in the
final draft did the "conservation storage" language appear in Article
IV(b).  There is nothing in the contemporaneous memoranda and statements of
the compact commissioners and their staffs to explain exactly why this
change was made, nor is there anything which indicates an intent to draw a
distinction between the limitations placed on New Mexico and those placed
on Texas.  Rather, as the Master pointed out, it is most probable that the
terms "stored water," "storage," and "conservation storage capacity" were
being used loosely and interchangeably by the drafters and their staffs.
See Report of Special Master 42-43.
    There is no obvious reason why Texas and Oklahoma would have wanted to
restrict New Mexico's ability to increase reservoir capacity below Conchas
Dam, particularly in light of the fact that larger reservoirs actually
promote one of the purposes stated in Article I of the Compact, which is to
capture and conserve as much of the Canadian River's flood flows as
possible, flows which might otherwise be dissipated and therefore wasted.
Furthermore, as New Mexico points out, sedimentation alone would constantly
reduce New Mexico's storage capacity below the 200,000 limit, forcing New
Mexico to repeatedly either build new reservoir capacity or enlarge
existing reservoirs.  Either of those options would be extremely expensive
and Oklahoma points to no persuasive evidence that the drafters of the
Compact intended that New Mexico should bear such a burden.  We overrule
Oklahoma's exception to Part VI of the Master's Report.

III
    New Mexico has excepted to Part VII of the Master's Report, in which
the Master recommended that water spilling or released from Conchas Dam, as
well as return flow and seepage from the Tucumcari Project, be subject to
Article IV(b)'s 200,000 acre-feet limitation on conservation storage, if
the water is impounded in Ute Dam or other downstream dams in New Mexico.
New Mexico argues that the Compact does not impose any restriction on New
Mexico's impoundment of these waters because they originate above Conchas
Dam, and Article IV(a) gives New Mexico the "free and unrestricted use of
all waters originating in the drainage basin of Canadian River above
Conchas Dam" (emphasis added).  Texas and Oklahoma counter that the word
"originating," as used in Article IV of the Compact, simply means
"entering."  See Tr. of Oral Arg. 29.  In Texas' and Oklahoma's view, all
the conservation storage waters which end up in Ute Reservoir, whether they
spill over or are released through Conchas Dam, or seep back from the
Tucumcari Project, are subject to the 200,000 acre-feet conservation
storage limitation of Article IV(b) because they "originate" below Conchas
Dam.  The Special Master recommended that such waters be subject to the
Article IV(b) limitation because he concluded 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."
Report of Special Master 59.
    New Mexico asserts that the word "originating" as used in Article IV
has a plain, unambiguous meaning and that the waters "originating" below
Conchas Dam referred to in Article IV(b) do not include any waters
"originating" above Conchas.  But we do not agree that the meaning of the
word is as plain as New Mexico suggests.  As the Special Master pointed
out, a literal reading of the language of Article IV(a) could not have been
intended since such a reading would include all of the waters originating
in the drainage basin of the Canadian River above Conchas Dam, including
all of the waters in tributaries that arise in Colorado, such as the
Vermejo River, and would purport to foreclose any claim that Colorado had
in the waters arising in that State.  This would be an extremely
implausible reading in light of the fact that Colorado was not a party to
the Compact.
    New Mexico's answer is that the language of Article IV(a), giving it
the right to all Canadian River waters originating above Conchas, does not
mean what it says and should be interpreted to include only those waters in
the drainage basin "originating" in New Mexico, a limitation that appeared
in earlier drafts of the Compact and that was reflected in the legislative
history of the Act approving the the Compact.  S. Rep. No. 1192, 82d Cong.,
2d Sess, 2 (1952).  But as Texas points out, New Mexico nevertheless claims
the right to use and store all of the water in the Canadian River that is
found in New Mexico above Conchas Dam, even though some of it admittedly
has its source in Colorado, not in New Mexico, a result unsupported by New
Mexico's present interpretation of the language in Article IV(a).
Likewise, if literally read, Article IV(a) would retain New Mexico's right
to water having a source above Conchas even if the water escaped its grasp
and flowed into Texas; but New Mexico concedes that the Article does not go
so far, if for no other reason than the fact that Article V gives Texas the
right to all of the water found in the Canadian River in Texas, subject to
a storage limitation.
    In light of the above ambiguity, which the dissent refuses to
recognize, it is fairly arguable that if by virtue of its right to water
originating in the drainage basin in New Mexico above Conchas Dam New
Mexico also has the right to use and store water in the Canadian River in
New Mexico that originated in Colorado, Article IV(b) should be construed
in the same way: any water found in the river below Conchas, including
spills, seepage and return flow from Tucumcari, must be deemed to have
originated below Conchas and be subject to the 200,000 acre-feet storage
limitation.  In effect this was the conclusion the Special Master came to
after examining in detail the purpose and negotiating history of the
Compact. {4}
    The Master reviewed considerable evidence regarding the drafters'
intent as to the meaning of Article IV and concluded that New Mexico's
suggested interpretation was not consistent with the available evidence.
{5}  Although the question is not free from doubt, we agree with the
Master.  Contrary to New Mexico's assertions, there is substantial evidence
that, in drafting the Compact, Texas and Oklahoma agreed that storage
limitations were not necessary for waters above Conchas Dam because the
waters in that basin had been fully developed.  "[T]he negotiators
recognized that full development had already been made of all waters of
Canadian River originating above Conchas Dam and that accordingly there
would be no purpose in placing a limitation upon any increase in the amount
of storage of such waters."  Joint Statement of Agreed Material Facts D.34.
The evidence strongly suggests that the negotiators believed that any
future water development along the Canadian River in New Mexico would
necessarily occur below Conchas Dam, and that 200,000 acrefeet of storage
rights would be ample for New Mexico's purposes below Conchas Dam.  Indeed,
in a letter to the governor, New Mexico's Compact Commissioner, John Bliss,
specifically stated that "storage capacity for all projects which may be
feasible below Conchas will probably not equal the 200,000 acre foot
storage limit."  {6}  Plaintiffs' Exh. 30, p. 1.
    The central purpose of the Compact was to settle the respective rights
of the States to Canadian River water; and the Compact and its negotiating
history plainly show that the parties agreed that no more than 200,000
acre-feet of storage rights would satisfy all of New Mexico's future needs
for water below Conchas Dam.  Had they thought more was needed, the limit
would have been higher.  Under these circumstances, we see no persuasive
reason why Texas and Oklahoma would have agreed to let New Mexico impound
substantially more than 200,000 acre-feet of water for conservation storage
purposes below Conchas Dam simply because some of the water first entered
the river above Conchas Dam.  Nor do we believe that the evidence supports
the conclusion that New Mexico's negotiator intended that result either.
    In our view, the Compact's ambiguous use of the term "originating" can
only be harmonized with the apparent intent of the Compact drafters if it
is interpreted so that waters which spill over or are released from Conchas
Dam, or which return from the Tucumcari Project, are considered waters
originating below Conchas Dam.  This view is strengthened by the fact that
both the Bureau of Reclamation in studying the Sanford Project, and the
engineers advising the Compact commissioners during negotiations, included
outflows and spills from Conchas Dam in their estimates of the water supply
available to Texas. {7}  See Joint Statement of Agreed Material Facts C.7,
D.16.  New Mexico points out that the States and the Master agree that
nothing in Article IV would prevent New Mexico from simply enlarging
Conchas Reservoir to capture all of the waters flowing into the river above
Conchas Dam.  See Tr. of Oral Arg. 6.  That reading of the Compact is
correct, but we fail to see how it refutes Texas' and Oklahoma's
interpretation of the Compact.  New Mexico apparently has never attempted
to enlarge Conchas Reservoir because doing so is economically infeasible,
and there is nothing in the evidence to suggest that the drafters
contemplated that New Mexico would seek to enlarge Conchas Reservoir in the
future.  Instead, as noted above, the Compact drafters were operating on
the assumption that New Mexico had fully developed its uses of water above
Conchas Dam and would not need additional water for above Conchas uses.  It
does not necessarily follow that New Mexico's entitlement under Article
IV(a) to all of the Canadian River water it can use from Conchas Reservoir
gives New Mexico the unrestricted right to store that water at any point
downstream from Conchas Dam.  Any right New Mexico has to water spilling
over Conchas Dam arises by virtue of Article IV(b) under which New Mexico
may store for its use 200,000 acrefeet of water originating below Conchas
Dam. {8}
    It is worth noting the Special Master's observation that New Mexico's
construction of Article IV, if accepted, would have a deleterious impact on
the water supply to the Sanford Project and hence would "run counter to the
Congressional intention in conditioning funding of the Sanford Project on
execution of the Compact and in subsequently approving the Compact."
Report of Special Master 57.  Congress had been informed that the Project
would rely in part on water arriving in Texas in the mainstream of the
Canadian.  Yet New Mexico's version of the Compact would, as a practical
matter, permit it to prevent any and all water entering the river above
Conchas from ever reaching Texas, whether by enlarging Ute Reservoir or
building additional facilities, and at the same time to impound at Ute Dam
most if not all of the principal tributary inflow below Conchas.
    All of New Mexico's needs for water above Conchas and for the Tucumcari
project are fully satisfied.  No one suggests otherwise.  It is also plain
that it was agreed in the Compact that 200,000 acre-feet of water storage
would be adequate to satisfy New Mexico'a needs for water below the
Conchas.  That allocation was indeed generous.  Since the signing of the
Compact, there have been no developments in the area below Conchas which
require substantial amounts of water for consumptive uses.  According to
the Special Master, slightly over 1,000 acre-feet for such purposes has
been sold from Ute Dam since 1963.  Id., at 68.  New Mexico is entitled to
200,000 acre-feet of conservation storage below Conchas Dam, which the
Compact anticipated would take care of any future developments in the area
below Conchas Dam.  As we construe the Compact, if New Mexico has at any
time stored more than that amount, it was not entitled to do so.  Any water
stored in excess of that amount should have been allowed to flow through
the Ute Dam, to be put to use by the downstream States, rather than
impounded in New Mexico.
    Accordingly, we overrule New Mexico's exceptions to Part VII of the
Report. {9}

IV
    In Part VIII of his report, the Master recommended that this Court
remand to the Canadian River Commission the question whether certain water
stored in Ute Reservoir, water which New Mexico has designated a "desilting
pool,"  {10} is exempt from the Article IV(b) limitation on New Mexico's
conservation storage because it allegedly serves a "sediment control"
purpose within the meaning of Article II(d).  Oklahoma and Texas except to
this recommendation, arguing that there is sufficient evidence in the
record to make a final determination on this issue, that the water in the
desilting pool should be counted towards the Article IV(b) limitation, and
that it is neither appropriate nor practical to refer the matter to the
Commission.  The Master acknowledged that the record developed in this case
probably was sufficient to permit him to decide this issue, Report of
Special Master 99-100, but he declined to address it until after the States
had first made some attempt, via the Canadian River Commission, to
negotiate a settlement.  We sustain Texas' and Oklahoma's exception to Part
VIII of the Master's Report insofar as those States argue that the matter
should not be referred to the Commission.
    "Where the States themselves are before this Court for the
determination of a controversy between them, neither can determine their
rights inter sese, and this Court must pass upon every question essential
to such a determination . . . ."  Kentucky v. Indiana, 281 U. S. 163,
176-177 (1930).  It is true that the Court has "often expressed [a]
preference that, where possible, States settle their controversies by
`mutual accommodation and agreement' ", Arizona v. California, 373 U. S.
546, 564 (1963) (quoting Colorado v. Kansas, 320 U. S. 383, 392 (1943), and
Nebraska v. Wyoming, 325 U. S. 589, 616 (1945)), but the Court "does have a
serious responsibility to adjudicate cases where there are actual, existing
controversies" between the States over the waters in interstate streams.
373 U. S., at 564.  There is no doubt that such a dispute exists in this
case, Oklahoma and Texas have properly invoked this Court's jurisdiction,
and there is no claim that the "desilting pool" issue has not been properly
presented.  Thus, we see no legal basis for the Master refusing to decide
the question and instead sending it to the Commission.  Thus, we remand the
"desilting pool" question to the Master for such further proceedings as may
be necessary and a recommendation on the merits. {11}

V
    The States' exceptions to the Special Master's Report are overruled
except for Oklahoma's and Texas' challenge to the Master's recommendation
that the "desilting pool" issue be referred to the Canadian River
Commission, which is sustained in part. {12}  The case is remanded to the
Master for such further proceedings and recommendations as may be
necessary.

So ordered.






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1
    At least one source suggests that the Canadian River was so named "by
early French traders and hunters from Canada who followed it west into
Spanish territory.  The Fort Smith and Santa Fe pioneer trails went through
the Canadian River Valley."  2 Encyclopaedia Britannica 789 (15th ed.
1985).

2
    The Compact provides in pertinent part as follows:

"Article I   "The major purposes of this Compact are to promote interstate
comity; to remove causes of present and future controversy; to make secure
and protect present developments within the States; and to provide for the
construction of additional works for the conservation of the waters of
Canadian River.

"Article II   "As used in this Compact:
    "(a) The term `Canadian River' means the tributary of Arkansas River
which rises in northeastern New Mexico and flows in an easterly direction
through New Mexico, Texas and Oklahoma and includes North Canadian River
and all other tributaries of said Canadian River.
    . . . . .

    "(d) The term `conservation storage' means that portion of the capacity
of reservoirs available for the storage of water for subsequent release for
domestic, municipal, irrigation and industrial uses, or any of them, and it
excludes any portion of the capacity of reservoirs allocated solely to
flood control, power production and sediment control, or any of them.
    . . . . .

"Article IV   "(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.
    . . . . .

"Article VII   "The Commission may permit New Mexico to impound more water
than the amount set forth in Article IV and may permit Texas to impound
more water than the amount set forth in Article V . . . .

"Article VIII   "Each State shall furnish to the Commission at intervals
designated by the Commission accurate records of the quantities of water
stored in reservoirs pertinent to the administration of this Compact."

3
    For example, the Master recommended that state attorneys general
seeking to invoke the Court's jurisdiction, or responding to such a
request, certify that their State had negotiated in good faith in an
attempt to resolve the dispute without resort to the Court.  Report of
Special Master 32-33.

4
    In anticipation of congressional authorization to enter into a compact,
the three States each appointed a compact commissioner in the fall of 1949.
The Compact Commission met for the first time in February 1950 to lay the
groundwork for future deliberations.  At that meeting, the commissioners
agreed that no specific proposals would be considered until the relevant
technical data was collected and studied.  On April 29, 1950, Congress
authorized the States to negotiate a compact and, approximately one month
later, Berkeley Johnson was appointed to the Compact Commission as the
federal representative and chairman of the commission.  Johnson then
selected Raymond Hill as his engineering advisor.
    The first official meeting of the Compact Commission was an
organizational meeting held on June 30, 1950.  Hill was named chairman of
the Engineering Advising Committe, made up of three Engineer Advisors
serving their respective Commissioners.  Over the next several months, the
engineer advisors conducted studies and collected data.  In early October,
the Compact Commission convened for its second formal meeting and received
a report from Hill regarding his committee's proposals regarding a compact.
The Compact Commission approved in principle the formulas developed by the
engineers and directed their legal advisors to prepare a draft compact.
Hill then prepared a memorandum to the legal advisors in which he
recommended that New Mexico be given "free and unrestricted use of all
waters in the drainage basin of Canadian River in New Mexico" subject only
to a 50,000 acre-feet conservation storage limitation in the drainage basin
"above Conchas Reservoir."  Defendans' Exh. 30, Exh. B, pp. 3-4.  By early
November, the Texas commissioner had expressed a strong desire to have a
final compact draft by December 6, 1950, so that Congress could authorize
the Sanford Project during a month-long legislative session which was to
begin in late November.  The legal advisors, working with Raymond Hill and
the engineers, submitted a partial draft compact dated November 14.  This
draft adopted Hill's suggested language with regard to New Mexico's rights
to Canadian River water; but because the legal advisors had not been able
"to satisfactorily word" the compact article dealing with storage
limitations were left to be defined later.  Id., Exh. C, p. 3.
    The Compact Commission held its third official meeting December 4-6,
1950.  On December 5, the draft compact was substantially revised by
Raymond Hill and the legal advisers to reflect changes in the engineers'
storage limitation formulas.  This draft provided that New Mexico should
have the "free and unrestricted use of all waters of the Canadian River in
New Mexico, subject to" a 200,000 acre-feet storage limitation on waters
"which originate in the drainage basin of the Canadian River below Conchas
Dam."  Id., Exh. F, p. 2.  The draft was again revised either later on
December 5 or during the morning of December 6.  The final draft included
for the first time the "originating . . . above Conchas Dam" language which
is now afocal point of the States' dispute in this case.  No
contemporaneous explanation was provided for this last-minute revision.
The final draft was presented to the Compact Commission on December 6 at
11:15 a.m., and, after making some minor revisions, the commissioners
signed the draft at 1:00 p.m., prompting Chairman Johnson to comment that
the speed with which the "compact reached the signing stage . . . certainly
constituted a record."  Plaintiffs' Exh. 110, p. 1.  The Master viewed the
process somewhat less charitably, observing that "the record of the Compact
negotiations and the issues raised in this litigation vividly demonstrate
that, as Benjamin Franklin observed, `haste makes waste.' "  Report 54.
    After the Compact had been signed, Chairman Johnson asked Hill to
prepare, as an interpretive tool, a memorandum providing a detailed
explanation of the various articles of the Compact.  See Plaintiffs' Exh.
140.  As evidence of the need for such a document, Johnson described a
recent discussion involving New Mexico's Compact Commissioner and
representatives of the Bureau of Reclamation and Corps of Engineers in
which three different positions were taken on the interpretation of the
Compact's allotment of water to Texas.  Hill then prepared a memorandum
entitled "Development of Final Wording of Compact," dated January 29, 1951
(the "Hill Memorandum"), see Plaintiffs' Exh. 38, and the Compact
Commission approved the Hill Memorandum at its fourth and final official
meeting on January 31, 1951.

5
    We agree with the Master that it is appropriate to look to extrinsic
evidence of the negotiation history of the Compact in order to interpret
Article IV.  We previously have pointed out that a congressionally approved
compact is both a contract and a statute, Texas v. New Mexico, 482 U. S.
124, 128 (1987), and we repeatedly have looked to legislative history and
other extrinsic material when required to interpret a statute which is
ambiguous.  Green v. Bock Laundry Machine Co., 490 U. S. 504, 511 (1989);
Pierce v. Underwood, 487 U. S. 552, 564-565 (1988); Blum v. Stenson, 465 U.
S. 886 (1984).  Furthermore, we have on occasion looked to evidence
regarding the negotiating history of other interstate compacts.  See, e.
g., Texas v. New Mexico, 462 U. S. 554, 568, n. 14 (1983); Arizona v.
California, 292 U. S. 341, 359-360 (1934).  Thus, resort to extrinsic
evidence of the compact negotiations in this case is entirely appropriate.
    New Mexico agrees that it is proper to use "negotiating history to
determine whether the words of this Compact can be interpreted reasonably
in accordance with their context," Brief for New Mexico 8, n. 1, but
contends that the Master used the negotiating history to "delete Compact
language," ibid., rather than to "interpret" the language.  Essentially,
New Mexico simply disagrees with the Master that the term "originating" as
used in Article IV is ambiguous.  Because we agree with the Master,
evidence regarding the negotiating history of the Compact may be considered
in interpreting Article IV even under New Mexico's view of the relevant
legal principles.

6
    New Mexico attempts to rely on the fact that in a letter written to
Senator Anderson of New Mexico, Bliss indicated that the only restriction
on New Mexico's use of Canadian River water was that "the total storage
capacity for conservation purposes of the waters rising below the dam (not
including spills) shall not exceed 200,000 acre feet."  Plaintiffs' Exh. 28
(emphasis added).  New Mexico argues that this letter proves that Bliss did
not construe the Compact as placing any limitation on New Mexico's right to
store and use waters which flooded over Conchas Dam.  But, like the Master,
we fail to see that this single letter proves nearly so much.
    First, it is not at all clear that an ordinary reading of the letter
compels the conclusion for which New Mexico argues.  At least as plausible
as New Mexico's reading is the interpretation that Bliss did not understand
the Compact as giving New Mexico any rights to store or use such spill
waters.  This reading is consistent with the plain language of the letter
and extrinsic evidence such as the fact noted in the text, infra, at ---,
that the engineers advising the Compact Commission included spills from
Conchas Dam in their estimates of the water supply available to Texas.
    Second, there is no indication that Bliss ever transmitted the view
that New Mexico now claims he held to the other commissioners or the
relevant New Mexico state officials such as the governor and state
legislature.  In fact, in his letter to Governor Mabry, Bliss never
mentions the issue of spills and instead indicates that the 200,000
acre-feet storage limitation imposed "little or no restriction" on any
water development projects in the state.  Plaintiffs' Exh. 30, p. 1.
Bliss' subsequent letter to Governor Mechem was very similar.  See
Plaintiffs' Exh. 40.  It is beyond cavil that statements allegedly made by,
or views allegedly held by, "those engaged in negotiating the treaty which
were not embodied in any writing and were not communicated to the
government of the negotiator or to its ratifying body," Arizona v.
California, supra, at 360, are of little use in ascertaining the meaning of
compact provisions.

7
    The Bureau of Reclamation, which played a significant role in providing
data to the Compact Commission, interpreted the completed Compact as not
entitling New Mexico to retain spills from Conchas Dam.  A 1954 Bureau
report on the Sanford Project stated that "[e]xcept for the contribution
received from such spills [referring to Conchas Dam spills], the water
supply for the Canadian River Project therefore must be obtained from
runoff originating in the portion of the Canadian River Basin between
Conchas Dam and Sanford Dam site . . . ."  Plaintiffs' Exh. 101, p. 50.
The 1954 Report, as well as a 1960 Bureau Report, see Plaintiffs' Exh. 102,
pp. 56, 58, make clear that the Bureau reads Article IV(b) as limiting New
Mexico's storage of any water below Conchas Dam, including water which
spills over Conchas Dam.

8
    An argument can be made that if the water originating below Conchas
excludes any water coming out of or over Conchas, New Mexico is not
entitled to store any such water, for Article IV(b) limits storage below
Conchas Dam to those waters originating below that Dam.  Furthermore, the
Hill memorandum, see n. 5, supra, indicates that the Commissioners
negotiating the Compact anticipated that the storage permitted below
Conchas would not be on the main stream but on the tributaries, and that
200,000 acre-feet would be sufficient to regulate those minor streams.  See
Plaintiffs' Exh. 38, p. 3.  Obviously, under this reading of Article IV(b),
Conchas spills would have to pass downstream to the Sanford Project.
Although there are traces of these arguments in Texas' response to New
Mexico's exceptions, Texas does not challenge New Mexico's entitlement to
store Conchas spills in Ute Dam so long as the total storage in that
reservoir does not exceed 200,000 acre-feet.

9
    New Mexico also argues that the Master improperly shifted the burden of
proof to New Mexico on the "above Conchas" issue, see Brief for New Mexico
26-28, but this exception does not merit discussion and is overruled.

10
    The lowest outlet works at Ute Reservoir are at an elevation of 3725
feet.  Below that elevation, no water in the reservoir can be released by
natural gravity flow.  This portion of a reservoir is customarily referred
to as "dead storage" because its principal purpose is to serve as a
depository for water-borne sediment entering the reservoir.  The capacity
of the dead storage pool at Ute Reservoir is approximately 20,700
acre-feet, almost half of which is actually occupied by sediment.  Since
1962, New Mexico Interstate Stream Commission, a state agency, has had an
agreement with the New Mexico Game Commission to maintain the water in Ute
Reservoir at a minimum elevation of 3741.6 feet for recreational purposes.
In 1984, New Mexico unilaterally designated this additional water (the
water above dead storage, i. e., between elevation 3725 and 3741.6,
approximately 49,900 acre-feet) a "desilting pool" which, according to New
Mexico, is part of the overall "sediment control pool" at Ute Reservoir.
Oklahoma and Texas oppose this designation and contend the water in the
"desilting pool" must be counted toward the 200,000 acre-feet limitation in
Article IV(b).

11
    Likewise, we decline the Master's invitation to set forth prerequisites
and guidelines, beyond those already in existence, for invoking this
Court's original jurisdiction.

12
    The Special Master has submitted a suggested decree to be entered at
this time, but we think it best to defer entry of any decree.  First, in
light of our remand for further proceedings with respect to the desilting
pool issue, the decree will have to be revised in any event.  Second, New
Mexico has excepted to the proposed decree in certain respects, and it is
not clear to us that the Master had the substance of these objections
before him when he drafted his final report.  His views on those objections
would be helpful.  Third, paragraph 1 of the proposed decree provides that
New Mexico shall have free and unrestricted use of the water of the
Canadian River and its tributaries in New Mexico above Conchas Dam, such
use to be made above or at Conchas, including diversions for use on the
Tucum cari Project.  Report of Special Master 112.  Under this provision,
New Mexico would not have unrestricted use of any water diverted at Conchas
for downstream use other than at Tucumcari.  Earlier in the Report,
however, the Special Master states that he has concluded that New Mexico
has unrestricted use of waters in the Canadian River basin above Conchas
"if such waters are stored, used or diverted for use at or above Conchas
Dam," id., at 59, including diversions at Conchas Dam for use on the
downstream Tucumcari Project.  This conclusion, as stated, would not
necessarily prevent diversions at Conchas for downstream use other than at
Tucumcari, so long as such diversions did not involve downstream storage.
In any event, we anticipate that the Special Master's subsequent report
dealing with the desilting pool will include a revised draft of the
proposed decree.