From The Las Cruces Sun-News (Diana Alba Soular):
Special Master Gregory Grimsal declined New Mexico’s request to toss out Texas’ lawsuit — essentially reaffirming draft rulings he issued in mid-2016 that was seen as a blow to New Mexico’s case.
The rulings are not the end of the case. They must now be reviewed by the Supreme Court, attorneys involved in the case said. And the entire matter could end up in a trial if not settled.
After the draft rulings, Grimsal took feedback from the parties involved and could have modified his stances in the document released Thursday. Instead, the final conclusions were the same as in the draft.
An attorney for Las Cruces-based Elephant Butte Irrigation District, which has been at odds with the state of New Mexico over the lawsuit, said the rulings represent a “victory” for the irrigation district. He said they recognize that “EBID members’ surface water rights are senior to all water rights in the basin” and that “the state engineer is obligated to protect that water as EBID delivers that water.”
The lawsuit arose out of the nature of the 1938 Rio Grande Compact, which apportioned river water among three U.S. states, experts have said. New Mexico’s measuring point for delivering water to Texas was the Elephant Butte Reservoir — roughly 100 miles north of the Texas state line. The river water released from the reservoir serves farmers in New Mexico-based EBID and Texas-based El Paso County Water Improvement District No. 1, as well as in Mexico. The groundwater pumping in that same 100-mile stretch, however, has been the purview of the New Mexico State Engineer’s Office.
Texas has argued New Mexico has over-pumped groundwater, undermining El Paso irrigators’ share of river water. EBID attorneys have said Grimsal’s rulings indicated New Mexico not only was obligated to deliver river water to Elephant Butte Reservoir for downstream users, but also had to protect it from being undermined before reaching the Texas state line.
Hernandez said the special master’s decision from Thursday must now be reviewed by the U.S. Supreme Court, which could take a few different approaches. The court could accept it outright or allow the states involved to make written — or possibly oral — arguments regarding Grimsal’s decision.
If the court affirms the ruling and sends the case back to Grimsal, the case would then be scheduled for a trial, which Grimsal would oversee. The outcome of the trial also would have to be reviewed and signed off upon by the Supreme Court, Hernandez said.
New Mexico Attorney General Hector Balderas announced last week he had met with stakeholders and is hoping to negotiate with Texas toward a resolution of the case.
In addition to declining New Mexico’s motion to dismiss the case, Grimsal on Thursday declined motions by EBID and EPCID No. 1 to become official parties in the case, alongside New Mexico, Texas and Colorado. Also, he specified the federal government couldn’t file a claim against New Mexico based on the 1938 Rio Grande Compact but that the federal government could make an argument against New Mexico under federal reclamation law, according to the document.