Supreme Court

Supreme Court Rejects Another Texas Suit under Its Original Jurisdiction, This Time about Water

A 7-1 Supreme Court rejected Texas's claims against New Mexico


The Supreme Court issued two more opinions this morning, one in an argued case and the other in a summary reversal.

In Texas v. New Mexico, a 7-1 Supreme Court rejected Texas's claim that it was owed more water from New Mexico. Like Texas v. Pennsylvania, this was a case that arose under the Supreme Court's original jurisdiction, because it involved a suit by one state against another state.

Justice Kavanaugh wrote for the Court. Justice Alito concurring in the judgment in part and dissenting in part. Justice Barrett did not participate. The dispute focused on which state had to bear the costs of evaporation that occurred when New Mexico temporarily stored water at Texas's request.

The introduction to Justice Kavanaugh's opinion nicely summarizes the details and conclusions:

This is a case about evaporated water. In the southwestern United States, the Pecos River begins near Santa Fe, New Mexico, and winds its way south for hundreds of miles through New Mexico and Texas before flowing into the Rio Grande River on the Texas-Mexico border. The 1949 interstate Pecos River Compact provides for equitable apportionment of the use of the River's water by New Mexico and Texas.

The dispute in this case started in 2014 when a tropical storm hit the Pecos River Basin. To prevent flooding, Texas asked New Mexico to temporarily store water from the Pecos River that would otherwise flow into Texas. New Mexico agreed to do so. A few months later, New Mexico released the water to Texas. But in the interim, some of the water evaporated.

The question presented is straightforward: Under the Pecos River Compact, does New Mexico receive delivery credit for the evaporated water even though that water was not delivered to Texas? The answer is yes. The River Master's Manual, which was approved by this Court in 1988, implements the Compact and speaks directly to this question: When water is stored in New Mexico "at the request of Texas," then New Mexico's delivery obligation "will be reduced by the amount of reservoir losses attributable to its storage." App. to Texas's Motion for Review 37a. Here, the water was stored in New Mexico at the request of Texas, so New Mexico's delivery obligation must be reduced by the amount of water that evaporated during its storage.

For that reason, the River Master awarded New Mexico elivery credit for the evaporated water. We agree with the River Master's determination, and we deny Texas's motion for review.

In a second opinion, in Shinn v. Kayer, the Court summarily reversed a grant of a habeas petition from the U.S. Court of Appeals for the Ninth Circuit under the Anti-Effective Death Penalty Act (AEDPA). This continues the Court's practice of summarily reversing decisions from circuit courts of appeals that, in the Court majority's view, are not sufficiently deferential to state court decisions. Such reversals are particularly common in death penalty cases (which this was), and most often involve decisions from the Ninth and Sixth Circuits. This case also involved a claim of ineffective assistance of counsel, which some circuit courts have been more willing to accept than has the Supreme Court.

As is common with summary reversals, this was an unsigned, per curiam opinion. Justices Kagan, Breyer, and Sotomayor dissented without opinion.

NEXT: Defendant "Wants to Go to a New Employer and Not Disclose the Serious Allegations Raised Against Him [in a Suit by His Ex-Employer]"

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  1. “…under the Anti-Effective Death Penalty Act (AEDPA).”

    I think you mean “under the Antiterrorism and Effective Death Penalty Act (AEDPA).”

    1. GVR’d those MF’ers.

    2. Whether or not intentional, that earns a sensible chuckle.

  2. Since George Russell KAYER Sr. was tried in 1997 and since he was convicted on the basis of, among other things, the testimony of his girl friend obviously his counsel was ineffective, it just took this long to figure that out.

  3. Isn’t it nice to see the Court return to business as normal. And isn’t it nice to see that Texas is totally rebuked when it arrogantly tries to go against the plain language of an agreement.

    1. The Texas AG is batting near a thousand.

    2. Yeah, Texas doesn’t seem to be very neighborly lately.

      “Hey New Mexico, please store some of that water you’d generally send down to us.”

      “Sure thing–happy to help!”

      “Thanks for that. And as a way of demonstrating our appreciation, we’ll now demand that you give us some more of the water you’d normally use yourself because some of our water evaporated while you were doing the nice thing we asked you to do.”

      1. Or you could try reading the case, rather thank making up insults.

        The dispute, like most water disputes, is more complicated than you present. In fact, your spin on it is pretty absurd.

        As Alito spells out, it was actually the Federal Bureau of Reclamation that made the request to New Mexico, not Texas. And in that case, different terms may apply. Same way, Texas did not request the release of the waters – the Federal government did. That means that the circumstances were not as clear as presented, and that the River Master may have behaved incorrectly when modifying the agreement to meet the current events.
        While this may be a case of Texas trying to have its coke and drink it, too, it isn’t that clear. There should have been actual investigation of the communications between the parties – something that was not done in this case – to determine the truth.

        1. There was a case in the past few years involving water and Florida where the same issue came up — was it really an action between states, or was the federal government a necessary party?

        2. Uh, maybe you read the wrong case. For example, it was not the Feds who made the request. From the decision.

          “To prevent flooding, Texas’s Pecos River Commissioner requested that some of the River’s water be stored in New Mexico”


          “Texas’s argument that the motion was untimely and concluding that the evaporated water was water stored “at the request of Texas”

          as for the manual which governs the Compact

          “As relevant, §C.5 of the Manual provides that when water is stored “at the request of Texas” in a facility in New Mexico, then New Mexico’s delivery obligation “will be reduced by the amount of reservoir losses attributable to its storage.””

          What we have here is typical Texas, if they and their criminally charged AG don’t like the law or agreements they made, they simply ignore them or go against them. Maybe if Texans decide to elect an AG who is not only honest, but even competent they will stop being losers.

          1. Did you read the Supreme Court’s ruling and dissent? The ruling glosses over which party actually made the requests. Alito did not, and specifically called out the fact that Texas did not make the request directly to New Mexico.

            I only found one link to the River Master’s decision, and it didn’t specify.

            So maybe Alito is just flat out lying about the case. Or maybe you didn’t read enough, and are mistaken.

            1. I will say that one of the two decisions are in error and need to be corrected. However, Toranth, be easy on Sidney. I would take it as authoritative too. It’s shocking that the Supreme Court would get such a basic and critical fact incorrect.

  4. Regarding the habeas case.

    think the fundamental dispute is whther the death penalty is the ordinary penalty generally applied in murder cases except in unusually mitigating circumstances, or on the contrary, whether the death penalty is a rare penalty to be applied in only extraordinary circumstances.

    The facts of this case suggests it was a middling case. So if the death penalty is the ordinary penalty for the middling case, then there was no special travesty of justice. The evidence of the crime was clear, it was carefully planned, and the defendant doesn’t have any particularly unusual mitigators for a death penalty case.

    On the other hand, if yiu think the death penalty is a rare exception reserved for especially heinous crime, this killing of a single person in a robbery wasn’t especially heinous or aggravated. The fact it was for pecuniary gain was the loan aggravator.

    It might be helpful, to avoid arbitrary application of the death penalty, if the court and state legislatures clarified the issue. If the death penalty is appropriate absent special mitigators, as the majority opinion tends to imply, everyone should know that that’s the intent. If the death penalty is inappropriate abent special aggravators (and/or an unusual absent of mitigators), that too should be noted.

    Ir seems probablematic to have identical statutory language and an identical body of court decisions which gets interpreted in these two very different ways, one way in some jurisdictions and by some judges, and the other way in and by others. What the constitution requires should be settled. And if the constitution permits either approach, then where on the spectrum each state wants to be should be made clear by each state’s legislature, rather than being left to individual juries to decide for themselves.

    1. think the fundamental dispute is whther the death penalty is the ordinary penalty generally applied in murder cases except in unusually mitigating circumstances, or on the contrary, whether the death penalty is a rare penalty to be applied in only extraordinary circumstances.

      You are mistaken.

      The fundamental issue is how federal judges assess state death sentences that state courts have approved. The answer is supposed to be that there is a very, very heavy presumption that they do not have the authority to overturn it. But when the frequent preference among federal judges for second-guessing state court decision is combined with their all-too-common bad faith opposition to the death penalty, they often find ways to rationalize not assessing these claims the way they’re supposed to. Good for the Supreme Court for sorting them out.

      1. I don’t see that.

        If we start with the premise that the death penalty is something rare applied only to exceptionally egregious murders, then letting it be applied to a run-of-the-mill murder is an obvious miscarriage of justice that would obviously have been rectified if rhe defendent had a semi-competent attorney, the state court decision is obviously wrong, and no reasonable jourist could disagree. From this premise, it would seem obvious that if the mitigating evidence had been presented, the jury would have reached a different result; it reached the death penalty here only because it mistakenly thought there was essentially no mitigating evidence at all. It’s obviously material

        Only if we accept rhe premise that a death penalty applied to a run-of-the mill murder is not a shocking miscarriage of justice, and hence a jury could easily see the mitigating evidence and not find it persuasive, does it become possible for the lawyer’s ommission of the mitigating evdence to be considered immaterial.

  5. I think it is pretty misleading to say the SCT “rejected another” Texas suit. That implies that they denied leave to file in the first place, like they just did in the election case.

    Here, there appears to have been a genuine merits-based review, and they ruled against TX on the merits.

    1. If you believe the Texas case involving the election was not decided on its merits, despite the technical method by which the decision was done (denial of leave vs allow leave and then rule against on merits) then you really do not understand what happened here.

      Texas was laughed out of Court, and the rollicking laughter was joined in by three Trump appointees.

  6. Does anyone know if there are actual specialists or recognized academic experts in original jurisdiction? Any treatises or substantial articles on the subject?
    Or is it too small a field for that?

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