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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.