2. There is no merit to New Mexico's contention that this Court
may order only prospective relief, and may not provide a remedy for
past breaches of the Compact. Although a compact, when approved by
Congress, becomes a law of the United States, it is still a
contract, subject to construction and application in accordance
with its terms. There is nothing in the nature of compacts
generally or of the Pecos River Compact in particular that counsels
against rectifying a failure to perform in the past as well as
ordering future performance. Moreover, good-faith differences (as
here) about the scope of contractual undertakings do not relieve
either party from performance. A court should provide a remedy if
the contract's terms provide a sufficiently certain basis for
determining both that a breach has occurred and the nature of the
remedy. Pp.
482 U. S.
128-129.
Page 482 U. S. 125
3. New Mexico contends that, in any event, it should be afforded
the option of paying money damages for past shortages. Although the
Master's report noted that both sides would possibly be better off
with monetary repayment, he concluded that the Compact, which does
not specify a remedy in case of a breach, contemplates delivery of
water, and that this Court may not order relief inconsistent with
the Compact's terms. However, the Compact itself does not prevent
the ordering of a suitable remedy, whether in water or money, and
the Eleventh Amendment is no barrier to a monetary judgment, since
that Amendment applies only to suits by citizens against a State.
Any concern as to difficulties in enforcing judgments against
States is insubstantial here, since if money damages were to be
awarded, it would only be on the basis that, if the sum awarded is
not forthcoming in a timely manner, a judgment for repayment in
water would be entered. This matter is returned to the Master for
such further proceedings as he deems necessary and for his
recommendations as to whether New Mexico should be allowed to elect
a monetary remedy and, if so, the size of the payment and other
terms that New Mexico must satisfy. Pp.
482 U. S.
129-132.
4. A decree is entered with respect to New Mexico's current and
future obligation to deliver water pursuant to Article III(a) of
the Compact. Moreover, both the Master's recommendation that,
because applying the approved apportionment formula is not entirely
mechanical, and involves a degree of judgment, an additional
enforcement mechanism be supplied, and his preferred solution --
the appointment of a River Master to make the required periodic
calculations -- are accepted. This Court's jurisdiction over
original actions like this one provides it with ample authority to
appoint such a master. On remand, the Special Master is requested
to recommend an amendment to the decree, specifying as he deems
necessary the River Master's duties and the consequences of his
determinations. Pp.
482 U. S.
133-136.
Exceptions to Special Master's report sustained in part and
overruled in part; decree entered.
WHITE, J., delivered the opinion of the Court, in which all
other Members joined, except STEVENS, J., who took no part in the
consideration or decision of the case.
Page 482 U. S. 126
JUSTICE WHITE delivered the opinion of the Court.
This original case, which is here for the fourth time, involves
the construction and enforcement of the 1949 Compact [
Footnote 1] between New Mexico and Texas
dividing the water of the Pecos River between the two States.
Because of the irregular flow of the Pecos River, the Compact did
not specify a particular amount of water to be delivered by New
Mexico to Texas each year. Instead, Article III(a) of the Compact
provides that
"New Mexico shall not deplete by man's activities the flow of
the Pecos River at the New Mexico-Texas state line below an amount
which will give to Texas a quantity of water equivalent to that
available to Texas under the 1947 condition."
Pecos River Compact, S. Doc. No. 109, 81st Congress, 1st Sess.,
Art. III(a) (1949). The parties have had different views with
respect to the "1947 condition," as well as other matters that
could not be resolved through the Pecos River Commission, which
Article V of the Compact established to carry out its provisions
and which can effectively act only by mutual agreement of the two
States. [
Footnote 2] After
years of relatively fruitless negotiation, Texas filed this
original action in June, 1974. We granted leave to file the
Page 482 U. S. 127
complaint, 421 U.S. 927 (1975), and appointed a Special Master,
423 U.S. 942 (1975), the Honorable Jean Breitenstein, now deceased,
who was then a judge of the Court of Appeals for the Tenth Circuit
and a recognized expert in western water law.
In 1979, the Special Master filed a report defining "the 1947
condition" and proposed a river routing study and adoption of a new
inflow-outflow manual to be used in determining how much water
Texas should be expected to receive over any particular period for
any particular level of precipitation under the consumption
conditions prevailing in New Mexico in 1947. We adopted that report
in its entirety.
446 U. S. 540
(1980). When the case was next here, we decided against attempting
to restructure the Commission to enable it to determine the method
for allocating river water, preferring that the case continue in
the litigation mode. [
Footnote
3]
462 U. S. 554
(1983). On June 11, 1984, we summarily approved the Special
Master's report specifying the inflow-outflow methodology to be
used in calculating Texas' entitlement. [
Footnote 4] 467 U.S. 1238.
Special Master Charles Meyers, Judge Breitenstein's successor,
468 U.S. 1202 (1984), then held hearings on the question whether
New Mexico had fulfilled its obligation under Article III(a) of the
Compact. He issued a report containing his findings and conclusion
that, for the years 1950-1983, New Mexico should have delivered
340,100 acre-feet more water at the state line than Texas had
received over those years. The Master recommended that, in addition
to performing its ongoing obligation under the Compact, New Mexico
be ordered to make up the accumulated shortfall by delivering
Page 482 U. S. 128
34,010 acre-feet of water each year for 10 years, with a penalty
in kind,
i.e., "water interest," for any bad-faith failure
to deliver these additional amounts.
Both sides excepted to the Master's report, and we have heard
oral argument. We find no merit in, and reject, the exceptions
filed by Texas and New Mexico with respect to the Master's
calculation of the shortfall that is chargeable to New Mexico.
[
Footnote 5]
New Mexico also excepts to the proposed remedy for the short
deliveries in past years. We find no merit in its submission that
we may order only prospective relief, that is, requiring future
performance of compact obligations without a remedy for past
breaches. If that were the case, New Mexico's defaults could never
be remedied. This was not our approach when the case was here in
1983. We then affirmed our authority to hear and decide Texas'
claim, and remanded the case to the Master for a determination of
the shortfall. As we said then, a compact when approved by Congress
becomes a law of the United States, 462 U.S. at
462 U. S. 564,
but "[a] Compact is, after all, a contract."
Petty v.
Tennessee-Missouri Bridge Comm'n, 359 U.
S. 275,
359 U. S. 285
(1959) (Frankfurter, J., dissenting). It remains a legal document
that must be construed and applied in accordance with its terms.
West Virginia ex rel. Dyer v. Sims, 341 U. S.
22,
462 U. S. 28
(1951); 462 U.S. at
462 U. S. 564.
There is nothing in the nature of compacts generally, or of this
Compact in particular, that counsels against rectifying a failure
to perform in the past as well as ordering future performance
called for by the Compact. By ratifying the Constitution, the
States gave this Court complete judicial power to adjudicate
disputes among them,
Rhode Island v.
Massachusetts, 12 Pet. 657,
37 U. S. 720
(1838), and this power includes the capacity to provide one State a
remedy for the breach of another.
Page 482 U. S. 129
New Mexico, however, argues that it has no obligation to deliver
water that it, in good faith, believed it had no obligation to
refrain from using. It is true that Texas and New Mexico have been
at odds on the interpretation of the Compact, and that their
respective views have not been without substantial foundation. Both
Special Masters recognized that New Mexico acted in good faith,
and, as Judge Breitenstein said in his 1982 report, New
Mexico's
"obligation is still uncertain, because the definition of the
1947 condition must be translated into water quantities to provide
a numerical standard."
Report of Special Master 18. The basic meaning of the 1947
condition was not defined until 1979 in the course of this
litigation, and a workable methodology for translating New Mexico's
obligation into quantities of water was not achieved until 1984,
also in this litigation. [
Footnote
6] But good faith differences about the scope of contractual
undertakings do not relieve either party from performance. A court
should provide a remedy if the parties intended to make a contract
and the contract's terms provide a sufficiently certain basis for
determining both that a breach has in fact occurred and the nature
of the remedy called for. Restatement (Second) of Contracts §
33(2), and Comment
b (1981). There is often a retroactive
impact when courts resolve contract disputes about the scope of a
promisor's undertaking; parties must perform today or pay damages
for what a court decides they promised to do yesterday and did not.
In our view, New Mexico cannot escape liability for what has been
adjudicated to be past failures to perform its duties under the
Compact.
New Mexico submits that, in the event Texas is found to be
entitled to a remedy for the past shortages now ascertained, it
should be afforded the option of paying money damages, rather than
paying in kind. New Mexico's Exceptions to the Report of the
Special Master 40-41. This possibility was discussed to some extent
in hearings before the Master, who
Page 482 U. S. 130
more than once stated that damages might be best for both
parties. New Mexico "stipulated" that, if relief was to be awarded,
damages were preferable. Tr. of Hearing Before the Special Master
94 (Apr. 16, 1985). The Special Master's report also states that
both sides would possibly be better off with monetary repayment,
but refers to difficulties suggested by counsel and observes that
the Compact contains no explicit provision for monetary relief. The
Master concluded that the Compact contemplated delivery of water,
and that the Court could not order relief inconsistent with the
Compact terms. The State of Texas supports the Master's view.
The Special Master was rightfully cautious, but the lack of
specific provision for a remedy in case of breach does not, in our
view, mandate repayment in water and preclude damages. Nor does our
opinion in 462 U.S.
462 U. S. 554
(1983), necessarily foreclose such relief. There, we asserted our
authority in this original action to resolve the case judicially,
rather than by restructuring the administrative mechanism
established by the Compact. That authority extended to devising a
method by which New Mexico's obligation could be ascertained and
then quantifying New Mexico's past obligation, as the Master has
now done. We have now agreed with him that New Mexico has not fully
performed, and we are quite sure that the Compact itself does not
prevent our ordering a suitable remedy, whether in water or
money.
The Court has recognized the propriety of money judgments
against a State in an original action,
South Dakota v. North
Carolina, 192 U. S. 286
(1904);
United States v. Michigan, 190 U.
S. 379 (1903); and specifically in a case involving a
compact,
Virginia v. West Virginia, 246 U.
S. 565 (1918). In proper original actions, the Eleventh
Amendment is no barrier, for, by its terms, it applies only to
suits by citizens against a State.
Maryland v. Louisiana,
451 U. S. 725,
451 U. S. 745,
n. 21 (1981);
United States v. Mississippi, 380 U.
S. 128,
380 U. S. 140
(1965);
South Dakota v. North Carolina, supra. That there
may be difficulties in enforcing judgments against
Page 482 U. S. 131
States counsels caution, but does not undermine our authority to
enter judgments against defendant States in cases over which the
Court has undoubted jurisdiction, authority that is attested to by
the fact that, almost invariably, the
"States against which judgments were rendered, conformably to
their duty under the Constitution, voluntarily respected and gave
effect to the same."
Virginia v. West Virginia, supra, at
246 U. S. 592.
In any event, that concern is insubstantial here, for if money
damages were to be awarded, it would only be on the basis that, if
the sum awarded is not forthcoming in a timely manner, a judgment
for repayment in water would be entered.
As we understand the Master, he did not pursue the matter of
monetary relief because he thought it foreclosed by the Compact,
not because he thought it inadequate, unfair, or impractical. As we
have said, the issue was raised in the hearings, but the record
does not permit a confident judgment as to whether a remedy in
money, rather than water, would be equitable or feasible. To order
making up the shortfalls by delivering more water has all the
earmarks of specific performance, an equitable remedy that requires
some attention to the relative benefits and burdens that the
parties may enjoy or suffer as compared with a legal remedy in
damages.
"[S]pecific performance is never demandable as a matter of
absolute right, but as one which rests entirely in judicial
discretion, to be exercised, it is true, according to the settled
principles of equity, but not arbitrarily and capriciously, and
always with reference to the facts of the particular case."
Haffner v. Dobrinski, 215 U. S. 446,
215 U. S. 450
(1910). Specific performance will not be compelled "if, under all
the circumstances, it would be inequitable to do so."
Wes1ey v.
Eells, 177 U. S. 370,
177 U. S. 376
(1900).
It might be said that those users who have suffered the water
shortages caused by New Mexico's underdeliveries over the years,
rather than the State, should be the recipients of damages, and
that they would be difficult if not impossible
Page 482 U. S. 132
to identify. But repayment in water would also likely fail to
benefit all those who were deprived in the past. [
Footnote 7] It might also be said that
awarding only a sum of money would permit New Mexico to ignore its
obligation to deliver water as long as it is willing to suffer the
financial penalty. But in light of the authority to order remedying
shortfalls to be made up in kind, with whatever additional sanction
might be thought necessary for deliberate failure to perform, that
concern is not substantial in our view.
We conclude that the matter of remedying past shortages should
be returned to the Special Master for such further proceedings as
he deems necessary, and for his ensuing recommendation as to
whether New Mexico should be allowed to elect a monetary remedy
and, if so, to suggest the size of the payment and other terms that
New Mexico must satisfy. [
Footnote
8]
Page 482 U. S. 133
Meanwhile, a decree in the form discussed below will issue with
respect to New Mexico's current and future obligation to deliver
water pursuant to Article III(a) of the Pecos River Compact as
interpreted and applied by the judgments of this Court.
The attached
482
U.S. 124app|>decree enjoins New Mexico to comply with its
Article III(a) obligation under the Pecos River Compact and to
determine the extent of its obligation in accordance with the
formula approved by the decisions of this Court. That formula was
fashioned in the course of this litigation, which was occasioned by
the inability of the Pecos River Commission, on which Texas and New
Mexico have the only votes, to agree on how river water should be
divided. Neither this opinion nor the decree, however, displaces
the authority of the Commission to perform what it has not been
able to perform before, namely, an agreed-upon and mutually
satisfactory formula for division and utilization of Pecos River
water. If history repeats itself, the Commission will not come
forth with an apportionment different from that which the Court has
now approved. If it does, the parties should petition the Court to
terminate or appropriately modify its decree, as the case may be.
Even if the Commission takes no action, it may be that, because of
the unpredictability and peculiarities of the Pecos, the
inflow-outflow methodology we have ordered implemented will not
reflect the realities of the river. In that event, it would be
appropriate to seek an amendment of the decree, as has been done in
other original actions.
Page 482 U. S. 134
The decree now issued goes no further, but the Master has
recommended that, because applying the approved apportionment
formula is not entirely mechanical, and involves a degree of
judgment, an additional enforcement mechanism be supplied. We
accept his recommendation, and also his preferred solution: the
appointment of a River Master to make the required periodic
calculations. In 1983, because we thought the Compact foreclosed
it, we declined to order a tie-breaker in order that the Commission
itself could arrive at a method to allocate water. We accordingly
proceeded in the litigative mode to construe and enforce the
Compact, asserting our authority to do so in unequivocal terms. We
have arrived at what we deem to be a fair and equitable solution
that is consistent with the Compact terms, and we are quite sure
that our jurisdiction over original actions like this provides us
with ample authority to appoint a master and to enforce our
judgment.
Virginia v. West Virginia, 246 U.S. at
246 U. S.
591.
In exercising this power, we have taken a distinctly jaundiced
view of appointing an agent or functionary to implement our
decrees.
Vermont v. New York, 417 U.
S. 270 (1974), emphatically expressed this reluctance.
But as we recognized,
id. at
417 U. S. 275-276,
that solution, or a like one, has been employed when the occasion
demands.
New Jersey v. New York, 283 U.
S. 805 (1931);
Wisconsin v. Illinois,
281 U. S. 179
(1930). This is one of those occasions when such a mechanism should
be employed. The natural propensity of these two States to disagree
if an allocation formula leaves room to do so cannot be ignored.
Absent some disinterested authority to make determinations binding
on the parties, we could anticipate a series of original actions to
determine the periodic division of the water flowing in the Pecos.
A River Master should therefore be appointed to make the
calculations provided for in this decree, annually and as promptly
as possible as data are available, and to report the
calculations
Page 482 U. S. 135
to appropriate representatives of New Mexico and of Texas. His
calculations will include determinations of negative or positive
departures from New Mexico's delivery obligation, and such
shortfalls or credits will be reflected in that State's later
delivery obligations.
Provision for a River Master will occasion an amendment to the
decree. On remand, the Special Master is requested to recommend an
amendment to the decree, specifying as he deems necessary the
duties of the River Master and the consequences of his
determinations. Any other suggestions for amendments should also be
called to our attention. The River Master's compensation shall be
borne equally by the parties. The parties, as well as the Special
Master, are welcome to suggest candidates for appointment as River
Master. [
Footnote 9]
[
Footnote 1]
The Compact was signed by the States in 1948, and was approved
by Congress in 1949. Article I, § 10, cl. 3, of the Constitution
provides that "No State shall, without the Consent of Congress, . .
. Compact with another State, or with a foreign Power. . . ."
[
Footnote 2]
The Commission is composed of a representative of each of the
States and a third, but nonvoting, representative of the United
States.
[
Footnote 3]
We also rejected the submission of Texas that "Double Mass
Analysis," rather than "Inflow-Outflow," be adopted as the method
for determining New Mexico's delivery obligation under the
Compact.
[
Footnote 4]
The Special Master recommended, and we agreed, that Figure 1 and
Table 1 of Texas Exhibit 68, pp. 3, 4, properly described the
method to be used.
[
Footnote 5]
New Mexico's ongoing obligation under Article III(a) of the
Compact, as now construed and applied by this Court, will be on the
average 10,000 acre-feet higher than New Mexico's deliveries have
been in the past.
[
Footnote 6]
The Inflow-Outflow Manual incorporated in the Compact proved to
be so faulty as to be unusable.
[
Footnote 7]
Texas counsel suggested that a money judgment might find its way
into the general coffers of the State, rather than benefit those
who were hurt. But the basis on which Texas was permitted to bring
this original action is that enforcement of the Compact was of such
general public interest that the sovereign State was a proper
plaintiff.
See Maryland v. Louisiana, 451 U.
S. 725,
452 U. S.
735-739 (1981). It is wholly consistent with that view
that the State should recover any damages that may be awarded,
money it would be free to spend in the way it determines is in the
public interest.
[
Footnote 8]
If the Special Master recommends and we approve a judgment for
money damages, Texas will be entitled to postjudgment interest
until the judgment is paid. If damages are not awarded or a damages
judgment is not paid, it would appear it would be necessary to make
up the shortfall by delivering more water over a period of years,
as the Master has recommended in his report. In that event, Texas
would have a judgment against New Mexico for 340,100 acre-feet of
water, plus any additional net shortfalls accruing to the date
hereof, which, if not delivered as ordered by the Court, would
entitle Texas to apply to this Court for enforcement,
cf.
Wyoming v. Colorado, 309 U. S. 572, 573
(1940), and to some form of postjudgment interest for the period
during which that judgment is not satisfied. We are unpersuaded,
however, that "water interest," rather than money, should be
awarded unless and until it proves to be necessary.
New Mexico submits that there is no statutory authority for this
Court to allow postjudgment interest in any form, and that we are
therefore without power to do so in this original action. It relies
on the statement in
Pierce v. United States, 255 U.
S. 398,
255 U. S. 406
(1921), that postjudgment interest may not be awarded absent
statutory authority. But we are not bound by this rule in
exercising our original jurisdiction. In
Virginia v. West
Virginia, 238 U. S. 202,
238 U. S. 242
(1916), the Court awarded interest on its judgment, an action
consistent with express statutory authority for other federal
courts to award postjudgment interest.
[
Footnote 9]
JUSTICE STEVENS took no part in the consideration or decision of
this case.
|
482
U.S. 124app|
DECREE
It is Ordered, Adjudged, and Decreed that the State of New
Mexico, its officers, attorneys, agents, and employees are hereby
enjoined:
"(A) To comply with the Article III(a) obligation of the Pecos
River Compact by delivering to Texas at state line each year an
amount of water calculated in accordance with the inflow-outflow
equation contained in Texas Exhibit 68, at page 2."
"(B) To calculate the Index Inflow component of the
inflow-outflow and channel-loss equations contained in Texas
Exhibit 79, modified to reflect the Court's decision of June 8,
1987, as to man-made depletions chargeable to New Mexico. 'Index
Inflow' shall mean the 3-year progressive average of 'annual flood
inflows' as those terms are defined in Texas Exhibit 79, Table 2,
p. 5. "
Page 482 U. S. 136
The Court retains jurisdiction of this suit for the purpose of
any order, direction, or modification of the decree, or any
supplementary decree, that may at any time be deemed proper in
relation to the subject matter in controversy.