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SUPREME COURT OF THE UNITED STATES
_________________
No. 11–889
_________________
TARRANT REGIONAL WATER DISTRICT, PETITIONER
v. RUDOLF JOHN HERRMANN et al.
on writ of certiorari to the united states
court of appeals for the tenth circuit
[June 13, 2013]
Justice Sotomayor delivered the opinion of the
Court.
The Red River Compact, (or Compact), 94Stat.
3305, allocates water rights among the States within the Red River
basin as it winds through Texas, Oklahoma, Arkansas, and Louisiana.
Petitioner Tarrant Regional Water District (Tarrant), a Texas
agency, claims that it is entitled to acquire water under the
Compact from within Oklahoma and that therefore the Compact
pre-empts several Oklahoma statutes that restrict out-of-state
diversions of water. In the alternative, Tarrant argues that the
Oklahoma laws are unconstitutional restrictions on interstate
commerce. We hold that Tarrant’s claims lack merit.
I
A
The Red River (or River) begins in the Llano
Estacado Mesa on the border between New Mexico and Texas. From this
broad plain, it first runs through the Texas Panhandle and then
marks the border between Texas and Oklahoma. It continues in an
easterly direction until it reaches the shared border with
Arkansas. Once the River enters Arkansas, it turns southward and
flows into Louisiana, where it empties into the Mississippi and
Atchafalaya Rivers.
As an important geographic feature of this
region, the Red River has lent its name to a valley, a Civil War
campaign, and a famed college football rivalry between the
Longhorns of Texas and the Sooners of Oklahoma. But college pride
has not been the only source of controversy between Texas and
Oklahoma regarding the Red River. The River has been the cause of
numerous historical conflicts between the two States, leading to a
mobilization of their militias at one time,
Oklahoma v.
Texas,
258 U.S.
574, 580 (1922), and the declaration of martial law along a
stretch of the River by Oklahoma Governor “Alfalfa Bill” Murray at
another, see Okla. H. Res. 1121, 50th Legislature, 2d Sess.
(2006) (resolution commemorating “Alfalfa Bill” Murray’s actions
during the “Red River Bridge War”). Such disputes over the River
and its waters are a natural result of the River’s distribution of
water flows. The River’s course means that upstream States like
Oklahoma and Texas may appropriate substantial amounts of water
from both the River and its tributaries to the disadvantage of
downstream States like Arkansas and especially Lou-isiana, which
lacks sufficiently large reservoirs to store water.
Absent an agreement among the States, disputes
over the allocation of water are subject to equitable apportionment
by the courts,
Arizona v.
California,
460 U.S.
605, 609 (1983), which often results in protracted and costly
legal proceedings. Thus in 1955, to forestall future disputes over
the River and its water, Congress authorized the States of
Arkansas, Louisiana, Oklahoma, and Texas to negotiate a compact to
apportion the water of the Red River basin among themselves. See
Act of Aug. 11, 1955, Pub. L. 346, 69Stat. 654. These negotiations
lasted over 20 years and finally culminated in the signing of the
Red River Compact in 1978. Congress approved the Compact in 1980,
transforming it into federal law. See Act of Dec. 22, 1980, 94Stat.
3305; Compact, 1 App. 7–51.
One of the Compact’s principal purposes was
“[t]o provide an equitable apportionment among the Signatory States
of the water of the Red River and its tributaries.” §1.01(b),
id., at 9. The Compact governs the allocation of water along
the Red River and its tributaries from the New Mexico and Texas
border to its terminus in Louisiana. §§2.12(a)–(e),
id., at
13. This stretch is divided into five separate subdivisions called
“Reach[es],”
ibid., each of which is further divided into
smaller “subbasins,” see,
e.g., §§5.01–5.05,
id., at
22–26 (describing subbasins 1 through 5 of Reach II). (See Appendix
A,
infra, for a map.)
At issue in this case are rights under the
Compact to water located in Oklahoma’s portion of subbasin 5 of
Reach II, which occupies “that portion of the Red River, together
with its tributaries, from Denison Dam down to the
Arkansas-Louisiana state boundary, excluding all tributaries
included in the other four subbasins of Reach II.” §5.05(a), 1 App.
24–25. (See Appendix B
, infra, for a map.) The Compact’s
interpretive comments[
1]
explain that during negotiations, Reach II posed the greatest
difficulty to the parties’ efforts to reach agreement. Comment on
Art. V, 1 App. 27. The problem was that Louisiana, the
farthest downstream State, lacks suitable reservoir sites and
therefore cannot store water during high flow periods to meet its
future needs. The upstream States (Texas, Oklahoma, and Arkansas),
which control the River’s flow, were unwilling to release water
stored within their own reservoirs for the benefit of any
downstream States, like Louisiana. Without any such release, there
would be no guaranteed flow of water to Louisiana.
The provisions of the Compact relating to Reach
II were crafted to address this problem. To this end, Reach II was
divided into five subbasins. The upstream subbasins, numbered 1
through 4, were drawn to end at “existing, authorized or proposed
last downstream major damsites,” see,
e.g., §5.01(a),
id., at 22, on the tributaries leading to the Red River
before reaching the main stem of the River. These dams allow the
parties managing them to control water along the tributaries before
it travels farther downstream and joins the flow of the main stem
of the River. For the most part, the Compact granted control over
the water in these subbasins to the States in which each subbasin
is located.[
2] The remaining
subbasin, subbasin 5, instead requires that water be allowed to
flow to Louisiana through the main stem of the River at certain
minimum levels, assuring Louisiana an allocation of the River’s
waters and solving its flowthrough problem.
The provision of the Compact central to the
present dispute is §5.05(b)(1), which sets the following allocation
during times of normal flow:
“(1) The Signatory States shall have equal
rights to the use of runoff originating in subbasin 5 and
undesignated water flowing into subbasin 5, so long as the flow of
the Red River at the Arkansas-Louisiana state boundary is 3,000
cubic feet per second [hereinafter CFS] or more, provided no state
is entitled to more than 25 percent of the water in excess of 3,000
[CFS].”[
3]
Id., at
25.
In these normal circumstances (
i.e., when
flows at the Arkansas-Louisiana border are above 3,000 CFS), this
provision and its interpretive comment make clear that “all states
are free to use whatever amount of water they can put to beneficial
use.” Comment on Art. V,
id., at 30. But if the amount
of water above 3,000 CFS cannot satisfy all such uses, then “each
state will honor the other’s right to 25% of the excess flow.”
Ibid. However, when the flow of the River diminishes at the
Arkansas-Louisiana border, the upstream States must permit more
water to reach Louisiana.[
4]
Subbasin 5’s allocation scheme allows upstream States to keep the
water that they have stored, but also ensures that Louisiana will
receive a steady supply of water from the Red River, with each
upstream State contributing during times of low flow.
To ensure that its apportionments are honored,
the Compact includes an accounting provision, but an accounting is
not mandatory “until one or more affected states deem the
accounting necessary.” §2.11,
id., at 13; see Comment on
Art. II,
id., at 15–16. This is because the “extensive
gaging and record keeping required” to carry out such an accounting
would impose “a significant financial burden on the involved
states.”
Id., at 16. Given these costs, the signatory States
did “not envisio[n] that it w[ould] be undertaken as a routine
matter.”
Ibid. Indeed, it appears that no State has ever
asked for such an accounting in the Compact’s history. See Brief
for Respondents 45; Reply Brief 11–12.
While the Compact allocates water rights among
its signatories, it also provides that it should not “be deemed to
. . . [i]nterfere with or impair the right or power of
any Signatory State to regulate within its boundaries the
appropriation, use, and control of water, or quality of water, not
inconsistent with its obligations under this Compact.” §2.10, 1
App. 12. Rather, “[s]ubject to the general constraints of water
availability and the apportionment of the Compact, each state
[remains] free to continue its existing internal water
administration.” Comment on Art. II,
id., at 14. Even
during periods of water shortage, “no attempt is made to specify
the steps that will be taken [by States to ensure water
deliveries]; it is left to the state’s internal water
administration.”
Ibid.
B
In the years since the Red River Compact was
ratified by Congress, the region’s population has increased
dramatically. In particular, the population of the Dallas-Fort
Worth metropolitan area in north Texas has grown from roughly 5.1
million inhabitants in 2000 to almost 6.4 million in 2010, a jump
of over 23 percent and among the largest in the United States
during this period. See Dept. of Commerce, Census Bureau, P. Mackun
& S. Wilson, Population Distribution and Change: 2000 to 2010
(Mar. 2011). This growth has strained regional water supplies, and
north Texas’ need for water has been exacerbated in recent years by
a long and costly drought. See generally Galbraith, A Drought More
Than Texas-Size, International Herald Tribune, Oct. 3, 2011, p.
4.
Against this backdrop, petitioner Tarrant, a
Texas state agency responsible for providing water to north-central
Texas (including the cities of Fort Worth, Arlington, and
Mansfield), has endeavored to secure new sources of water for the
area it serves. From 2000 to 2002, Tarrant, along with several
other Texas water districts, offered to purchase water from
Oklahoma and the Choctaw and Chickasaw Nations. See 2 App. 336–382.
But these negotiations were unsuccessful and Tarrant eventually
abandoned these efforts.
Because Texas’ need for water only continued to
grow, Tarrant settled on a new course of action. In 2007, Tarrant
sought a water resource permit from the Oklahoma Water Resources
Board (OWRB),[
5] respondents
here, to take 310,000 acre feet[
6] per year of surface water from the Kiamichi River, a
tributary of the Red River located in Oklahoma. Tarrant proposed to
divert the Kiamichi River, at a point located in subbasin 5 of
Reach II, before it discharges into the Red River and, according to
Tarrant, becomes too saline for potable use.
Tarrant knew, however, that Oklahoma would
likely deny its permits because various state laws (collectively,
the Oklahoma water statutes) effectively prevent out-of-state
applicants from taking or diverting water from within Oklahoma’s
borders. These statutes include a requirement that the OWRB
consider, when evaluating an application to take water out of
State, whether that water “could feasibly be transported to
alleviate water short- ages in the State of Oklahoma.” Okla. Stat.,
Tit. 82, §105.12(A)(5) (West 2013). The statutes also require that
no permit issued by the OWRB to use water outside of the State
shall “[i]mpair the ability of the State of Oklahoma to meet its
obligations under any interstate stream compact.” §105.12A(B)(1). A
separate provision creates a permitting review process that applies
only to out-of- state water users. §105.12(F). Oklahoma also
requires legislative approval for out-of-state water-use permits,
§105.12A(D), and further provides that “[w]ater use within Oklahoma
. . . be developed to the maximum extent feasible for the
benefit of Oklahoma so that out-of-state downstream users will not
acquire vested rights therein to the detriment of the citizens of
this state,” §1086.1(A)(3). Interpreting these laws, Oklahoma’s
attorney general has concluded that “we consider the proposition
unrealistic that an out-of-state user is a proper permit applicant
before the [OWRB]” because “[w]e can find no intention to create
the possibility that such a valuable resource as water may become
bound, without compensation, to use by an out-of-state user.” 1
App. 118.
When Tarrant filed its permit application, it
also filed suit against respondents in Federal District Court. As
relevant here, Tarrant sought to enjoin enforcement of the Oklahoma
water statutes by the OWRB. Tarrant argued that the statutes, and
the interpretation of them adopted by Oklahoma’s attorney general,
were pre-empted by federal law and violated the Commerce Clause by
discriminating against interstate commerce in water.
The District Court granted summary judgment for
the OWRB on both of Tarrant’s claims. See No. CIV–07–0045–HE, 2010
WL 2817220, *4 (WD Okla., July 16, 2010); No. CIV–07–0045–HE (WD
Okla., Nov. 18, 2009), App. to Pet. for Cert. 72a–73a, 2009 WL
3922803, *8. The Tenth Circuit affirmed. 656 F.3d 1222, 1250
(2011).[
7]
We granted Tarrant’s petition for a writ of
certiorari, 568 U. S. ___ (2013), and now affirm the judgment
of the Tenth Circuit.
II
A
Tarrant claims that under §5.05(b)(1) of the
Compact, it has the right to cross state lines and divert water
from Oklahoma located in subbasin 5 of Reach II and that the
Oklahoma water statutes interfere with its ability to exercise that
right. Section 5.05(b)(1) provides:
“The Signatory States shall have equal
rights to the use of runoff originating in subbasin 5 and
undesignated water following into subbasin 5, so long as the flow
of the Red River at the Arkansas-Louisiana state boundary is 3,000
[CFS] or more, provided no state is entitled to more than 25
percent of the water in excess of 3,000 [CFS].” 1 App. 25.
In Tarrant’s view, this provision essentially
creates a borderless common in which each of the four signatory
States may cross each other’s boundaries to access a shared pool of
water. Tarrant reaches this interpretation in two steps. First, it
observes that §5.05(b)(1)’s “equal rights” language grants each
State an equal entitlement to the waters of subbasin 5, subject to
a 25 percent cap. Second, Tarrant argues §5.05(b)(1)’s silence
concerning state lines indicates that the Compact’s drafters did
not intend to allocate water according to state borders in this
section. According to Tarrant, “the ‘25 percent’ language [of
§5.05(b)(1)] makes clear that, in exercising its ‘equal rights’ to
the common pool of water, no State may take more than a one-quarter
share,” Reply Brief 3, but any of the signatory States may
“cross state lines to obtain [its] shar[e] of Subbasin 5 waters,”
Brief for Petitioner 32.
The OWRB disputes this reading. In its view, the
“equal rights” promised by §5.05(b)(1) afford each State an equal
opportunity to make use of the excess water within subbasin 5 of
Reach II but only within each State’s own borders. This is because
the OWRB reads §5.05(b)(1)’s silence differently from Tarrant. The
OWRB interprets that provision’s absence of language granting any
cross-border rights to indicate that the Compact’s drafters had no
intention to create any such rights in the signatory States.
Unraveling the meaning of §5.05(b)(1)’s silence
with respect to state lines is the key to resolving whether the
Compact pre-empts the Oklahoma water statutes.[
8] If §5.05(b)(1)’s silence means that state
borders are irrelevant to the allocation of water in subbasin 5 of
Reach II, then the Oklahoma water laws at issue conflict with the
cross-border rights created by federal law in the form of the
Compact and must be pre-empted. But if §5.05(b)(1)’s silence
instead reflects a background understanding on the part of the
Compact’s drafters that state borders were to be respected within
the Compact’s allocation, then the Oklahoma statutes do not
conflict with the Compact’s allocation of water.
B
Interstate compacts are construed as contracts
under the principles of contract law.
Texas v.
New
Mexico,
482 U.S.
124, 128 (1987). So, as with any contract, we begin by
examining the express terms of the Compact as the best indication
of the intent of the parties, see also
Montana v.
Wyoming, 563 U. S. ___, ___, and n. 4, ___, (2011)
(slip op., at 5, and n. 4, 17); Restatement (Second) of
Contracts §203(b) (1979).
Tarrant argues that because other provisions of
the Compact reference state borders, §5.05(b)(1)’s silence with
respect to state lines must mean that the Compact’s drafters
intended to permit cross-border diversions. For example, §5.03(b),
which governs subbasin 3 of Reach II, provides that
“[t]he States of Oklahoma and Arkansas
shall have free and unrestricted use of the water of this subbasin
within their respective states, subject, however, to the
limitation that Oklahoma shall allow a quantity of water equal to
. . . 40 percent of the total runoff originating below
the following existing, authorized or proposed last major
downstream damsites in Okla- homa to flow into Arkansas.” 1 App.
23–24 (emphasis added).
Section 6.03(b), which covers subbasin 3 of
Reach III, similarly provides that “Texas and Louisiana
within
their respective boundaries shall each have the unrestricted
use of the water of this subbasin subject to the following
[conditions].”
Id., at 33 (emphasis added). Thus, §5.03(b)
and §6.03(b) mimic §5.05(b)(1) in allocating water rights within a
subbasin, but differ in that they make explicit ref-erence to water
use “within” state boundaries. Relying on the
expressio
unius canon of construction, Tarrant finds that §5.05(b)’s
silence regarding borders is significant because “ ‘[w]here
Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally
presumed [that] Congress acts intentionally and purposely in the
disparate inclusion or exclusion.’ ” Brief for Petitioner 29
(quoting
Russello v.
United States,
464 U.S.
16, 23 (1983)).
But Tarrant’s argument fails to account for
other sections of the Compact that cut against its reading. For
example, §5.05(b)(3), which governs the waters of subbasin 5 in
Reach II when flows are below 1,000 CFS, requires that during such
periods, Arkansas, Texas, and Oklahoma allow water “
within their
respective states to flow into the Red River as required
to maintain a 1,000 [CFS] flow at the Arkansas-Louisiana state
boundary.” 1 App. 25 (emphasis added). Obviously none of the
upstream States can redirect water that lies outside of their
borders, so the phrase “within their respective states” is
superfluous in §5.05(b)(3). In contrast, §5.05(b)(2), which governs
when the River’s flow at the Arkansas-Louisiana border is above
1,000 CFS but below 3,000 CFS, requires that upstream States allow
a flow to Louisiana equivalent to 40 percent of total weekly runoff
originating within the subbasin and 40 percent of undesignated
water flowing into subbasin 5 of Reach II.
Id., at 25. This
language can only refer to water within each State’s borders
because otherwise
each State would have to contribute 40
percent to the total water flow, which would add up to more than
100 percent. Read together and to avoid absurd results,
§§5.05(b)(2) and (3) suggest that each upstream State is
individually responsible for ensuring that sufficient subbasin 5
water located
within its respective borders flows down to
Louisiana, even though §5.05(b)(2) lacks any explicit reference to
state lines.
Applying Tarrant’s understanding of
§5.05(b)(1)’s silence regarding state lines to other of the
Compact’s provisions would produce further anomalous results.
Consider §6.01(b). That provision states that “Texas is apportioned
sixty (60) percent of the runoff of [subbasin 1 of Reach III] and
shall have unrestricted use thereof; Arkansas is entitled to forty
(40) percent of the runoff of this subbasin.”
Id., at 32.
Because Texas is upstream from Arkansas, water flows from Texas to
Arkansas. Given this situation, the commonsense reason for
§6.01(b)’s 60-to-40 allocation is to prevent Texas from barring the
flow of water to Arkansas. While there is no reference to state
boundaries in the section’s text, the unstated assumption
underlying this provision is that Arkansas must wait for its 40
percent share to go through Texas before it can claim it. But
applying Tarrant’s understanding of silence regarding state borders
to this section would imply that Arkansas could enter into Texas
without having to wait for the water that will inevitably reach it.
This counterintuitive outcome would thwart the self-evident
purposes of the Compact. Further, other provisions of the Compact
share this structure of allocating a proportion of water that will
flow from an upstream State to a downstream one.[
9] Accepting Tarrant’s reading would upset
the balance struck by all these sections.
At the very least, the problems that arise from
Tarrant’s proposed reading suggest that §5.05(b)(1)’s silence is
ambiguous regarding cross-border rights under the Compact. We
therefore turn to other interpretive tools to shed light on the
intent of the Compact’s drafters. See
Oklahoma v.
New
Mexico,
501 U.S.
221, 235, n. 5 (1991).[
10] Three things persuade us that cross-border rights
were not granted by the Compact: the well-established principle
that States do not easily cede their sovereign powers, including
their control over waters within their own territories; the fact
that other interstate water compacts have treated cross-border
rights explicitly; and the parties’ course of dealing.
1
The background notion that a State does not
easily cede its sovereignty has informed our interpretation of
interstate compacts. We have long understood that as sovereign
entities in our federal system, the States possess an “absolute
right to all their navigable waters and the soils under them for
their own common use.”
Martin v.
Lessee of Waddell,
16 Pet. 367, 410 (1842). Drawing on this principle, we have held
that ownership of submerged lands, and the accompanying power to
control navigation, fishing, and other public uses of water, “is an
essen- tial attribute of sovereignty,”
United States v.
Alaska,
521 U.S.
1, 5 (1997). Consequently, “ ‘[a] court deciding a
question of title to [a] bed of navigable water [within a State’s
boundaries] must . . . begin with a strong presumption’
against defeat of a State’s title.”
Id., at 34 (quoting
Montana v.
United States,
450
U.S. 544, 552 (1981)). See also
Solid Waste Agency of
Northern Cook Cty. v.
Army Corps of Engineers,
531 U.S.
159, 174 (2001);
Utah Div. of State Lands v.
United
States,
482 U.S.
193, 195 (1987).
Given these principles, when confronted with
silence in compacts touching on the States’ authority to control
their waters, we have concluded that “[i]f any inference at all is
to be drawn from [such] silence on the subject of regula- tory
authority, we think it is that each State was left to regulate the
activities of her own citizens.”
Virginia v.
Maryland, 540 U.S. 56, 67 (2003). Cf.
New Jersey v.
New York,
523 U.S.
767, 783, n. 6 (1998) (“[T]he silence of the Compact was
on the subject of settled law governing avulsion, which the
parties’ silence showed no intent to modify”).
Tarrant asks us to infer from §5.05(b)(1)’s
silence regarding state borders that the signatory States have
dispensed with the core state prerogative to control water within
their own boundaries.[
11]
But as the above demonstrates, States rarely relinquish their
sovereign powers, so when they do we would expect a clear
indication of such devolution, not inscrutable silence. We think
that the better understanding of §5.05(b)(1)’s silence is that the
parties drafted the Compact with this legal background in mind, and
therefore did not intend to grant each other cross-border rights
under the Compact.
In response, Tarrant contends that its
interpretation would not intrude on any sovereign prerogative of
Oklahoma because that State would retain its authority to regulate
the water within its borders. Because anyone seeking water from
Oklahoma would still have to apply to the OWRB, receive a permit,
and abide by its conditions, Tarrant argues that Oklahoma’s
sovereign authority remains untouched by its interpretation. But
Tarrant cannot have it both ways. Adopting Tarrant’s reading would
necessarily entail assuming that Oklahoma and three other States
silently surrendered substantial control over the water within
their borders when they agreed to the Compact. Given the background
principles we have described above, we find this unlikely to have
been the intent of the Compact’s signatories.
2
Looking to the customary practices employed in
other interstate compacts also helps us to ascertain the intent of
the parties to this Compact. See
Alabama v.
North
Carolina, 560 U.S. 330 ___, ___ (2010) (slip op., at 9);
Oklahoma, 501 U. S., at 235, n. 5;
Texas v.
New Mexico,
462 U.S.
554, 565 (1983). See also Restatement (Second) of Contracts
§203(b) (explaining that “usage of trade” may be relevant in
interpreting a contract). Many of these other compacts feature
language that unambiguously permits signatory States to cross each
other’s borders to fulfill obligations under the compacts. See,
e.g., Amended Bear River Compact, Art. VIII(A), 94Stat. 12
(“[N]o State shall deny the right of another signatory State
. . . to acquire rights to the use of water
. . . in one State for use of water in
another”).[
12] The absence
of comparable language in the Red River Compact counts heavily
against Tarrant’s reading of it.
Tellingly, many of these compacts provide for
the terms and mechanics of how such cross-border relationships will
operate, including who can assert such cross-border rights, see,
e.g., Kansas-Nebraska Big Blue River Compact, Art. VII(1),
86Stat. 198, who should bear the costs of any cross-border
diversions, see,
e.g., Belle Fourche River Compact, Art. VI,
58Stat. 96–97, and how such diversions should be administered,
Arkansas River Basin Compact, Kansas-Oklahoma, Art. VII(A), 80Stat.
1411. See also Brief for Professors of Law and Political Science as
Amici Curiae 11–14 (giving more examples).
Provisions like these are critical for managing
the complexities that ensue from cross-border diversions. Consider
the mechanics of a cross-border diversion or taking of water in
this case. If Tarrant were correct, then applicants from Arkansas,
Texas, and Louisiana could all apply to the OWRB for permits to
take water from Oklahoma. The OWRB would then be obligated to
determine the total amount of water in Oklahoma beyond the 25
percent cap created in §5.05(b)(1), given that the Compact would
only obligate Oklahoma to deliver water beyond its quarter share.
This alone would be a herculean task because the Compact does not
require ongoing monitoring or accounting, see Compact §2.11, 1 App.
13, and not all of the water in subbasin 5 is located or originates
in Oklahoma. Moreover, the OWRB would be tasked with determining
the priority under the Compact of applicants from other States.
This would almost certainly require the OWRB to not only determine
whether Oklahoma had received more or less than its 25 percent
allotment, but whether other States had as well. Put plainly, the
end result would be a jurisdictional and administrative quagmire.
The pro-visions in the other interstate water compacts resolve
these complications. The absence of comparable provisions in the
Red River Compact strongly suggests that cross-border rights were
never intended to be part of the States’ agreement.
Tarrant counters that not all interstate
compacts that permit cross-border diversions have explicit language
to this effect. On this front, Tarrant manages to identify one
interstate compact that it contends permits cross-border diversions
without express language to that effect, the Upper Niobrara River
Compact, Pub. L. 91–52, 83Stat. 86. Tarrant observes that this
compact, which deals with a river mostly located in Nebraska with
only a small portion in Wyoming, provides that “[t]here shall be no
restrictions on the use of the surface waters of [the river] by
Wyoming.” See Art. V(A)1,
id., at 88. Tarrant suggests that
this language, coupled with the fact that the bulk of the river is
in Nebraska, implicitly indicates that the compact grants Wyoming a
right to enter Nebraska and use the river’s water. First, we are
not convinced that a single compact’s failure to reference state
borders does much to detract from the overall custom in this area.
See
supra, at 16–18, and n. 12. Second, the Upper Niobrara
River Compact is not a helpful counterexample for Tarrant. The
general provision that Tarrant quotes is paired with a host of
detailed conditions. See Arts. V(A)1(a)–(f), 83Stat. 88. Contrary
to Tarrant’s position, then, assuming that the Upper Niobrara River
compact does create any cross-border rights, it does so not through
silence, but through the detailed scheme that would apply to any
such contemplated diversions.
Tarrant also argues that §2.05(d) of the Red
River Compact, which provides that “[e]ach Signatory State shall
have the right to” “[u]se the bed and banks of the Red River and
its tributaries to convey stored water, imported or exported water,
and water apportioned according to this Compact,” 1 App. 11, in
fact authorizes cross-border diversions. Because the present border
between Texas and Oklahoma east of the Texas Panhandle is set by
the vegetation line on the south bank of the River, Red River
Boundary Compact, 114Stat. 919, Tarrant contends that §2.05(d)
reflects an understanding on the part of the Compact’s drafters
that state borders could be crossed. But the issue is not as simple
as Tarrant makes it out to be. When the Compact was drafted, the
Texas-Oklahoma border was fixed at the south bank of the River. See
Texas v.
Oklahoma,
457 U.S.
172 (1982). If Texas was able to access water through the south
bank of the River—an issue left unbriefed by the parties—the
Compact’s framers may have believed that Texas could reach the
River and take water from it without having to enter Oklahoman
land, casting doubt on Tarrant’s theory. In any event, even if
§2.05(d) is read to establish a cross-border right, it does so
through express language setting forth the location and purposes
under which such an incursion is permissible. This is different
from the inference from silence that Tarrant asks us to draw in
§5.05(b)(1).
3
The parties’ conduct under the Compact also
undermines Tarrant’s position. A “part[y’s] course of performance
under the Compact is highly significant” evidence of its
understanding of the compact’s terms.
Alabama v.
North
Carolina, 560 U. S., at___ (slip op., at 14). Since the
Compact was approved by Congress in 1980, no signatory State had
pressed for a cross-border diversion under the Compact until
Tarrant filed its suit in 2007. Brief for Respondents 26, 49–51.
Indeed, Tarrant attempted to purchase water from Oklahoma over the
course of 2000 until 2002, see
supra, at 7, a strange offer
if Tarrant believed it was entitled to demand such water without
payment under the Compact.
In response, Tarrant maintains that there were
“compelling business reasons” for it to purchase water. Reply Brief
17. We are unpersuaded. If Tarrant believed that it had a right to
water located in Oklahoma, there would have been “compelling
business reasons” to mention this right given that billions of
dollars were at stake. See 2 App. 362–363 (summarizing Texas
purchase proposal). Yet there is no indication that Tarrant or any
other Texas agency or the State of Texas itself previously made any
mention of cross-border rights within the Compact, and none of the
other signatory States has ever made such a claim.
4
The Compact creates no cross-border rights in
Texas. Tarrant’s remaining arguments do not persuade us
otherwise.
First, Tarrant argues that its interpretation of
the Compact is necessary to realize the “structure and purpose of
Reach II.” Brief for Petitioner 34–38. Tarrant contends that
because the boundary of subbasin 5 is set by the location of the
last existing, authorized, or proposed sites for a downstream dam
before the Red River, see Compact §§5.01(a), 5.02(a), 5.03(b),
5.04(a), 1 App. 22–24, the Compact allows each of the States
upstream from Louisiana to prevent water from flowing from its
tributaries into subbasin 5. Tarrant reasons that each State will
therefore hold whatever water it needs in its upstream basins.
Given this, Tarrant maintains that any water that a State
voluntarily allows to reach subbasin 5 must be surplus water that
State did not intend to use, and if the upstream State has no need
for that water, then there is no reason not to allow other States
to access and use it, even across borders.
This argument is founded on a shaky premise: It
assumes that flows from these dammed-up tributaries are the sole
source of water in subbasin 5. But §5.05(b)(1) explains that
“[s]ignatory States shall have equal rights to the use of runoff
originating in subbasin 5,” as well as “water flowing into subbasin
5,” which would include flows from the main stem of the River
itself.
Id., at 25. Thus, there are waters that are specific
to subbasin 5 separate from those originating in the tributaries
covered by subbasins 1 through 4. Tarrant’s account of the purposes
of subbasin 5 does not explain how these waters were to be
allocated.
Tarrant’s second argument regarding the purposes
of Reach II is that §5.05(b)(1)’s 25 percent cap on each State’s
access to excess water in subbasin 5 should be read to imply that
if a State cannot access sufficient water within its borders to
meet its share under the cap, then it must be able to cross borders
to reach that water. Were it otherwise, Tarrant explains, the 25
percent cap would have no purpose. To support this argument,
Tarrant draws on a 1970 engineering report that it contends shows
that only 16 percent of the freshwater flowing into subbasin 5 was
located in Texas. Brief for Petitioner 9, n. 5. The OWRB
challenges this percentage with its own calculations drawn from the
report, and asserts that Texas had access to at least 29 percent of
the excess water in subbasin 5 within its own borders. Brief for
Respondents 26, 47–48, and n. 17.
Fortunately, we need not delve into calculations
based on a decades-old engineering report to resolve this argument.
As we have explained,
supra, at 4–6, Texas does not have a
minimum guarantee of 25 percent of the excess water in subbasin 5.
If it believes that Oklahoma is using more than its 25 percent
allotment and wishes to stop it from doing so, then it may call for
an accounting under §2.11 of the Compact and, depending on the
results of that accounting, insist that Oklahoma desist from taking
more than its provided share. See Compact §2.11, and Comment on
Art. II, 1 App. 13–16. This is the appropriate remedy provided
under the Compact. But Texas has never done so and Tarrant offers
no evidence that in the present day Texas cannot access its 25
percent share on its own land.
C
Under the Compact’s terms, water located
within Oklahoma’s portion of subbasin 5 of Reach II remains under
Oklahoma’s control. Accordingly, Tarrant’s theory that Oklahoma’s
water statutes are pre-empted because they prevent Texas from
exercising its rights under the Compact must fail for the reason
that the Compact does not create any cross-border rights in
signatory States.
III
Tarrant also challenges the constitutionality
of the Oklahoma water statutes under a dormant Commerce Clause
theory. Tarrant argues that the Oklahoma water statutes
impermissibly “ ‘discriminat[e] against interstate commerce’
for the ‘forbidden purpose’ of favoring local interests” by
erecting barriers to the distribution of water left unallocated
under the Compact. Brief for Petitioner 47–48 (quoting
Department of Revenue of Ky. v.
Davis,
553 U.S.
328, 338 (2008)). Tarrant’s argument is premised on the
position that if we “adopt the Tenth Circuit’s or respondent’s
interpretation [of the Compact], . . . a substantial
amount of Reach II, Subbasin 5 water located in Oklahoma is not
apportioned to
any State and therefore is available to
permit applicants like Tarrant.” Brief for Petitioner 47. So,
Tarrant continues, because Oklahoma’s laws prevent this
“unallocated water” from being distributed out of State, those laws
violate the Commerce Clause.
Tarrant’s assumption that that the Compact
leaves some water “unallocated” is incorrect. The interpretive
comment for Article V of the Compact makes clear that when the
River’s flow is above 3,000 CFS, “all states are free to use
whatever amount of water they can put to beneficial use,” subject
to the requirement that “[i]f the states have competing uses and
the amount of water available in excess of 3000 CFS cannot satisfy
all such uses, each state will honor the other’s right to 25% of
the excess flow.” 1 App. 29–30. If more than 25 percent of subbasin
5’s water is located in Oklahoma, that water is not “unallocated”;
rather, it is allocated to Oklahoma unless and until another State
calls for an accounting and Oklahoma is asked to refrain from
utilizing more than its entitled share.[
13] The Oklahoma water statutes can- not discriminate
against interstate commerce with re-spect to unallocated waters
because the Compact leaves no waters unallocated. Tarrant’s
Commerce Clause argument founders on this point.
* * *
The Red River Compact does not pre-empt Okla-
homa’s water statutes because the Compact creates no cross-border
rights in its signatories for these statutes to infringe. Nor do
Oklahoma’s laws run afoul of the Commerce Clause. We affirm the
judgment of the Court of Appeals for the Tenth Circuit.
It is so ordered.