In this dispute between Texas and New Mexico over the extent of
New Mexico's obligation to deliver water to Texas under the terms
of the Pecos River Compact, New Mexico's exceptions to the Special
Master's report are overruled, the report is approved, and an
amended decree and order appointing a River Master are entered.
Exceptions overruled; amended decree and order entered.
Opinions reported:
446 U. S. 446 U.S.
540,
462 U. S. 462 U.S.
554; order reported: 467 U.S. 1238; opinion and decree reported:
482 U. S. 482 U.S.
124.
PER CURIAM.
Last Term, we issued a decree in this case which enjoined the
State of 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."
Texas v. New Mexico, 482 U.
S. 124,
482 U. S. 133
(1987). We retained jurisdiction for the purpose of any order,
direction, or modification of the decree as might be deemed proper.
In particular, we approved the Special Master's recommendation that
a River Master be appointed in this case, and requested that, on
remand, the Special Master "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."
Id. at
482 U. S.
135.
The Special Master has now submitted a report, which includes a
proposed amended decree. New Mexico's motion for leave to file a
reply brief is granted. New Mexico's exceptions to the report are
overruled. The report is approved, and an amended decree will issue
forthwith. The Special
Page 485 U. S. 389
Master has also recommended a person to serve as River Master.
We accept that recommendation.
AMENDED DECREE
I
T IS ORDERED, ADJUDGED, AND DECREED THAT:
I
DEFINITIONS
A. For purposes of this Decree:
"1. 'Accounting year' is the calendar year during which the
River Master makes the calculations required by Article III.B.1.
below; 'water year' is the calendar year immediately preceding the
accounting year."
"2. 'Manual' is the Pecos River Master's Manual admitted into
evidence as Texas Exhibit 108, which is an integral part of this
Decree. The Manual may be modified from time to time in accordance
with the terms of this Decree."
"3. 'Overage' is the amount of water delivered by New Mexico in
any water year which exceeded the Article III(a) obligation for
that year."
"4. 'Shortfall' is the amount by which the water delivered by
New Mexico in any water year fell short of the Article III(a)
obligation for that year."
II
I
NJUNCTION
A. The State of New Mexico, its officers, attorneys, agents, and
employees are hereby enjoined:
"1. To comply with Article III(a) of the Pecos River Compact and
to meet the obligation thereof by delivering water to Texas at
state line as prescribed in this Decree."
"2. Within thirty (30) days of receipt of a final Report of the
River Master identifying a shortfall, to submit to
Page 485 U. S. 390
the River Master a proposed plan providing for verifiable action
by New Mexico that will increase the amount of water at state line
prior to March 31 of the year following the accounting year by the
amount of the shortfall. In order to identify the incremental
amount of water being delivered to Texas to satisfy a prior
shortfall, the plan shall:"
" (a) Identify the specific actions to be taken by New Mexico to
increase the amount of water flowing to Texas, including, if
applicable, the points at which water will enter the river or
diversions will be curtailed;"
" (b) Specify the dates and times the actions will be
taken;"
" (c) Provide a calculation under the procedures and equations
set forth in the Manual of the amount of water that can be presumed
to arrive at state line as a result of the actions;"
" (d) Identify the means by which the actions can be verified
and provide assurances that documents and data necessary for
verification will be submitted to the River Master within thirty
(30) days from the date the actions are taken;"
" (e) Provide guarantees that the water to be delivered pursuant
to the plan will not be diverted within New Mexico."
3. To comply prior to March 31 of the year following the
accounting year with the terms of an Approved Plan to remedy any
shortfall. Compliance with an Approved Plan will be deemed to
satisfy the shortfall. Subject to the review provided in Article
III.D. of this Decree, the calculations made pursuant to Article
II.A.2(c), as approved by the River Master, shall be determinative
of the amount of water delivered at state line.
Page 485 U. S. 391
III
RIVER MASTER
A.
Appointment. The appointment of a River Master is
made by the attached Order of Appointment.
B.
Duties. The River Master shall perform the following
duties:
"1. Calculate in accounting year 1988, beginning with water year
1987, and continuing every year thereafter, pursuant to the
methodology set forth in the Manual:"
" (a) The Article III(a) obligation;"
" (b) Any shortfall or overage, which calculation shall
disregard deliveries of water pursuant to an Approved Plan;"
" (c) The net shortfall, if any, after subtracting any overages
accumulated in previous years, beginning with water year 1987."
"2. Deliver to the parties a Preliminary Report setting forth
the tentative results of the calculations required by Section
III.B.1. of this Decree by May 15 of the accounting year;"
"3. Consider any written objections to the Preliminary Report
submitted by the parties prior to June 15 of the accounting
year;"
"4. Deliver to the parties a Final Report setting forth the
final results of the calculations required by Section III.B.1. of
this Decree by July 1 of the accounting year;"
"5. Review any plan proposed by New Mexico pursuant to Article
II.A.2. of this Decree for its efficacy in satisfying any shortfall
and consider any written objections to the plan which are submitted
by Texas by September 1 of the accounting year."
"6. Modify the proposed plan as is deemed necessary to ensure
satisfaction of the shortfall and deliver to the parties such
Approved Plan by October 1 of the accounting year; "
Page 485 U. S. 392
"7. Deliver to the parties and file with this Court a Compliance
Report by June 1 of the year following any accounting year in which
there is an Approved Plan, which report shall include a finding of
New Mexico's compliance or noncompliance with the terms of the
Approved Plan and the reasons for such finding."
C.
Modification of Manual.
"1. The River Master shall modify the Manual in accordance with
any written agreement of the parties. Such written agreement shall
state the effective date of the modification and whether it is to
be retroactive. If retroactive, the agreement shall specify the
procedures for making the retroactive adjustments."
"2. Absent written agreement of the parties, upon motion by
either party and for good cause shown, the River Master may modify
the Manual. Opposition to any such motion shall be submitted to the
River Master in writing within thirty (30) days after service of
the motion or within such extended time as may be allowed by the
River Master. Additional written submissions and any oral
presentation will be at the River Master's discretion. The River
Master may adopt, reject, or amend the proposed modification and
shall serve upon the parties his or her written Modification
Determination and the grounds therefor. The River Master may also
defer decision on a proposed modification, but if no action is
taken within one (1) year of its submission, the motion shall be
deemed denied."
"3. A modification of the Manual by motion shall be first
applicable to the water year in which the modification becomes
effective."
"4. All modifications of the Manual shall be transmitted
immediately to the Clerk of this Court and shall be retained in the
files for this case. "
Page 485 U. S. 393
D.
Effect of River Master's Determination. Unless
stayed by this Court, any Final Report, Approved Plan, Compliance
Report, or Modification Determination (hereinafter, collectively,
"Final Determination") shall be effective upon its adoption, and
shall be subject to review by this Court only on a showing that the
Final Determination is clearly erroneous. A party seeking review of
a Final Determination must file a motion with the Clerk of this
Court within thirty (30) days of its adoption, which motion shall
set forth the Final Determination on which review is sought and a
concise statement of the basis of the claim that the Final
Determination is clearly erroneous.
E.
Authority of Pecos River Commission. Nothing in this
Decree is intended to displace the authority of the Pecos River
Commission to administer the Pecos River Compact, and if the
Commissioners reach agreement on any matter, the parties shall
advise the Court and seek an appropriate amendment to this
Decree.
F.
Communication with River Master. Ex parte
communications with the River Master are forbidden. Any written
communication with the River Master by motion or otherwise shall be
simultaneously served by mail on the opposing party. Any oral
communication with the River Master shall be made in the presence
of the opposing party, whether by telephone conference call or in
person.
G.
Distribution of Costs. The compensation of, and the
costs and expenses incurred by, the River Master shall be approved
by the Court and borne equally by the State of Texas and the State
of New Mexico.
IV
DISMISSAL OF UNITED STATES
A. The United States is dismissed from this proceeding without
prejudice.
Page 485 U. S. 394
V
RETENTION OF JURISDICTION
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.
ORDER APPOINTING RIVER MASTER
IT IS ORDERED that Neil S. Grigg be and he hereby is appointed
River Master of the Pecos River for the purpose of performing the
duties set forth in the Amended Decree of March 28, 1988.
IT IS FURTHER ORDERED that the River Master shall have the power
and authority to subpoena information or data, compiled in
reasonable usable form, which he deems necessary or desirable for
the proper and efficient performance of his duties.
IT IS FURTHER ORDERED that the River Master is allowed his
necessary expenses and reasonable fees for his services, statements
for which shall be submitted quarterly to the Court for its
approval. Upon Court approval, such statements will be paid by the
State of New Mexico and the State of Texas.
IT IS FURTHER ORDERED that if the position of River Master
becomes vacant during a recess of the Court, THE CHIEF JUSTICE
shall have authority to make a new designation which shall have the
same effect as if originally made by the Court.
JUSTICE STEVENS took no part in the consideration or decision of
this case.