The Canadian River flows through New Mexico and the Texas
Panhandle before entering Oklahoma. Its waters are apportioned
among these States by the Canadian River Compact. Article IV(a) of
the Compact gives New Mexico free and unrestricted use of all
waters "originating" in the river's drainage basin above Conchas
Dam -- a structure that predates the Compact and provides water to
the Tucumcari Project, a federal reclamation project -- and IV(b)
gives it free and unrestricted use of waters "originating" in the
river's drainage basin below that dam, limiting the "conservation
storage" for impounding those waters to 200,000 acre-feet. In 1963,
New Mexico constructed Ute Dam and Reservoir downstream from
Conchas Dam. In 1984, Ute Reservoir was enlarged, giving it a
storage capacity of 272,800 acre-feet, which has been reduced to
about 237,900 feet because of silting. Oklahoma and Texas filed
this litigation, contending that Article IV(b)'s limitation is
imposed on reservoir
capacity available for conservation,
and that capacity for the so-called "desilting pool" portion of Ute
Reservoir was not exempt from that limitation because it was not
allocated solely to "sediment control." In 1987, while the case was
pending, the river above Conchas Dam flooded, spilling over that
dam, and Ute Reservoir caught a sufficient amount of spill waters
to exceed 200,000 acre-feet. When New Mexico refused to count the
spill waters for purposes of the limitation, Texas and Oklahoma
filed a supplemental complaint, claiming that, if the limitation
applies to actual
stored water, then water spilling over
Conchas Dam or seeping back from Tucumcari Project constitutes
waters originating below Conchas Dam under Article IV(b). As
relevant here, the Special Master's Report recommended that (1)
Article IV(b) imposes a limitation on stored water, not physical
reservoir capacity (Part VI of the Report); (2) water originating
in the river basin above Conchas Dam but reaching the river's
mainstream below that dam as a result of spills or releases from
the dam or seepage and return flow from Tucumcari Project are
subject to the Article IV(b) limitation (Part VII); (3) the issue
whether and to what extent the water in Ute Reservoir's "desilting
pool" should be exempt from the Article IV(b) limitation should be
referred to the Canadian River Compact Commission for negotiations
and possible resolution (Part VIII); and (4) if the recommendations
are approved, New Mexico will have been in violation of Article
IV(b) since 1987, and the
Page 501 U. S. 222
case should be returned to the Special Master for determination
of any injury to Oklahoma and Texas and recommendations for
appropriate relief. The States have filed exceptions.
Held:
1. Oklahoma's exception to the recommendation in Part VI of the
Master's Report is overruled. Nothing on the Compact's face
indicates a clear intention to base New Mexico's limitation on
available reservoir capacity when Texas' limitation is based on
stored water. Early drafts uniformly referred to stored water, and
the contemporaneous memoranda and statements of compact
commissioners and their staffs do not explain why a change to
"storage capacity" was made in the final draft, although it is most
probable the terms were being used loosely and interchangeably. Pp.
501 U. S.
229-231.
2. Also overruled are New Mexico's exceptions to the
recommendation in Part VII of the Report. New Mexico errs in
arguing that the term "originating" is unambiguous, and that there
are no restrictions on the impoundment of the spill waters, since
they are waters originating above Conchas Dam, to which the State
has free and unrestricted use under Article IV(a). Rather, the
Special Master correctly concluded that the Compact's drafters
intended in Article IV(a) to give New Mexico free and unrestricted
use of waters "originating" in the river's drainage basin above
Conchas Dam
only if the waters were stored, used, or
diverted for use at or above Conchas Dam. There is substantial
evidence that, in drafting the Compact, Texas and Oklahoma agreed
that storage limits were not necessary for waters above Conchas Dam
because the waters in that basin had been fully developed, that any
future water development would necessarily occur below that dam,
and that 200,000 acre-feet of storage rights would satisfy all of
New Mexico's future needs below the dam. The Compact's ambiguous
use of the term "originating" can be harmonized with the drafters'
apparent intent only if it is interpreted so that waters spilling
over or released from Conchas Dam, or returned from Tucumcari
Project, are considered waters
originating below Conchas
Dam. Thus, any water stored in excess of the 200,000 acre-feet
limit should have been allowed to flow through Ute Dam for use by
the downstream States, rather than being impounded by New Mexico.
Pp.
501 U. S.
231-240.
3. Texas' and Oklahoma's exception to the recommendation in Part
VIII of the Report is sustained insofar as those States argue that
the "desilting pool" issue should not be referred to the
Commission. There was no legal basis for the Master's refusing to
decide whether the water in the desilting pool should be counted
towards the Article IV(b) limitation, since a dispute clearly
exists in this case, and since there is no claim that the issue has
not been properly presented.
Arizona v.
California, 373 U. S. 546.
Thus, the matter must be remanded to the Master for such further
proceedings as may be necessary and a recommendation on the merits.
Pp.
501 U. S.
240-241.
Exceptions sustained in part and overruled in part, and case
remanded.
WHITE, J., delivered the opinion of the Court, in which
MARSHALL, BLACKMUN, STEVENS, and SOUTER, JJ., joined, and in Parts
I, II, and IV of which REHNQUIST, C.J., and O'CONNOR, SCALIA, and
KENNEDY, JJ., joined. REHNQUIST, C.J., filed an opinion concurring
in part and dissenting in part, in which O'CONNOR, SCALIA, and
KENNEDY, JJ., joined,
post, p.
501 U. S.
242.
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.
Page 501 U. S. 224
I
The Canadian River [
Footnote
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
Page 501 U. S. 225
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. [
Footnote 2]
Page 501 U. S. 226
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. ยง
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.
Page 501 U. S. 227
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 acre-feet 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
Page 501 U. S. 228
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 Tucumcari 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
Page 501 U. S. 229
guidelines for application in future interstate compact
litigation.
Id. at 26-34. [
Footnote 3] We ordered the Master's Report to be filed,
and set a briefing schedule, 498 U.S. 956 (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
Page 501 U. S. 230
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
Page 501 U. S. 231
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
Page 501 U. S. 232
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 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
Page 501 U. S. 233
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.
[
Footnote 4]
Page 501 U. S. 234
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
Page 501 U. S. 235
with the available evidence. [
Footnote 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
Page 501 U. S. 236
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 acre-feet 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." [
Footnote 6] Plaintiffs' Exh. 30, p.
1.
Page 501 U. S. 237
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. [
Footnote 7]
See Joint
Statement of Agreed Material
Page 501 U. S. 238
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 acre-feet of water
originating below Conchas Dam. [
Footnote 8]
Page 501 U. S. 239
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's 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
Page 501 U. S. 240
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. [
Footnote 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," [
Footnote 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
Page 501 U. S. 241
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,
281 U. S.
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,
373 U. S. 564
(1963) (quoting Colorado v. Kansas, 320 U.
S. 383, 320 U. S. 392
(1943), and Nebraska v. Wyoming, 325 U.
S. 589, 325 U. S. 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 373 U. S. 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's
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. [Footnote 11]
Page 501 U. S. 242
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.
[
Footnote 12] The case is
remanded to the Master for such further proceedings and
recommendations as may be necessary.
So ordered.
[
Footnote 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).
[
Footnote 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."
[
Footnote 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.
[
Footnote 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 Committee, 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." Defendants' 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 a focal 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.
[
Footnote 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,
482 U. S. 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,
490 U. S. 511
(1989);
Pierce v. Underwood, 487 U.
S. 552,
487 U. S.
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,
462 U. S. 568,
n. 14 (1983);
Arizona v. California, 292 U.
S. 341,
292 U. S.
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.
[
Footnote 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
501 U. S.
237-238, 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
292 U. S. 360, are
of little use in ascertaining the meaning of compact
provisions.
[
Footnote 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.
[
Footnote 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.
[
Footnote 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.
[
Footnote 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).
[
Footnote 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.
[
Footnote 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 Tucumcari 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.
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
Page 501 U. S. 243
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
501 U. S. 231
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
Page 501 U. S. 244
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
Page 501 U. S. 245
'stored, used or diverted for use
at or above Conchas
Dam.'"
Ante at
501 U. S. 232
(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
501 U. S.
232-233. 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,
482 U. S. 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,
462 U. S. 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
501 U. S.
230-232. 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
Page 501 U. S. 246
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
501 U. S.
232.
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. 414,
199 U. S. 423
(1905).
Page 501 U. S. 247
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, are 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,
462 U. S. 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,
373 U. S.
565-566
Page 501 U. S. 248
(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
501 U. S. 236.
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
501 U. S.
237.
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
Page 501 U. S. 249
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 fact 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
Page 501 U. S. 250
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 occurred 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
501 U. S. 238.
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
501 U. S. 242,
n. 12. The Court's construction, therefore, does
Page 501 U. S. 251
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
501 U.
S.