Courthouse Steps Oral Argument Teleforum: Texas v. New Mexico

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Nick Marr:  Welcome to The Federalist Society's teleforum conference call when, this afternoon, October 6, 2020, will be a Courthouse Steps Oral Argument Teleforum on a case heard yesterday called Texas v. New Mexico, and today we'll be reviewing it. My name is Nick Marr. I'm Assistant Director of Practice Groups at The Federalist Society.

 

      As always, please note that expressions of opinion are those of the experts on today's call—or those of the expert.

 

      We're fortunate to have with us Tony Francois. He's a Senior Attorney at Pacific Legal Foundation. After Tony gives his opening remarks, we'll then go to some audience question and answer. So, for the audience, be thinking of those and have those in mind for when we get to that portion of the call.

 

      Thanks for sharing with us today, Tony. The floor is yours.

 

Anthony L. Francois:  Thank you, Nick. Yesterday, on the first day of its October 2020 term, the Supreme Court heard telephonic oral argument in Texas v. New Mexico, which is a longstanding case in the Court's original jurisdiction under Article III, Section 2 over cases between states.

 

      The case involves the administration of the Pecos River Compact which governs, as the name suggests, the two states' relative rights to the waters of the Pecos River. The Pecos runs roughly beginning near the town of Pecos in northeastern New Mexico, eventually crosses the state line into Texas, proceeds on through the town of Pecos in west Texas before flowing into the Rio Grande.

 

      Along the way, the only place it passes that anybody not from New Mexico has probably heard of is Roswell, New Mexico. Roswell may be an appropriate weight point to take note of for this case because, like the perhaps mythical UFO that is said to have crashed at Roswell, the water at the center of this dispute in this case also vanished into thin air, which is to say the issue in the case is the proper accounting under the Pecos compact for water that evaporated from a reservoir in New Mexico at a time when the water should have already been safety across the state line in a different reservoir in Texas. This is the question that the justices heard argue about yesterday.

 

      Now, a short word about why Texas' water under the compact was at least temporarily detained in New Mexico and stored there for Texas' benefit. The record is a little muddled on this, but the situation appears to be that a significant flood event took place in southeastern New Mexico in late 2014 to early 2015, in the Pecos River watershed, which generated high flood flows at the border between the two states, which Texas had to hold in one of its reservoirs to prevent flood damage further downstream.

 

      Because its reservoir was unexpectedly and temporarily full of New Mexico's flood runoff, Texas was not able to take delivery of other water that New Mexico had upstream in a different reservoir which was tagged, if you will, for release and delivery to Texas.

 

      Now, following this flood event, there were a couple of years of back and forth over how to account for the various quantities of water that were taken by Texas as flood water and held by New Mexico while Texas was storing flood water.

 

      Now, because the stored water that's at the heart of the dispute was later to be released from the New Mexico reservoir to the Texas border, New Mexico needed to know how much to release. It's important to understand here this is not merely an accounting or paperwork exercise.

 

If you think of it this way:  Let's say that because of the flood event, Texas was unable to take delivery of 100 gallons of water, just for illustration purposes. New Mexico is holding that 100 gallons of water in a reservoir and at a later date, will have to deliver that water to Texas out of 100 gallons of water that would be in their reservoir.

 

New Mexico argued that of the 100 gallons it has in its reservoir, it only had to deliver a portion to Texas and could keep the rest because a portion of Texas' water had evaporated in the reservoir pending delivery.

 

What's really at stake in this case is of the water that New Mexico should've originally delivered to Texas, could New Mexico keep a significant portion of that water? The theory for keeping that would be that a portion of it had evaporated, or a portion of the amount that should be delivered to Texas had evaporated.

 

Texas claims it should've been delivered the same amount of water that New Mexico stored for it without evaporation losses. The parties do agree that the amount that evaporated is enough to supply irrigation water to a large number of farmers on one side of the border or the other, so it's no small matter whether New Mexico has to deliver water equal to the amount that evaporated to Texas for Texas' farmers or it can keep a similar amount on its side of the state line for its own farmers.

 

How to answer that question. Well, one starts with the text of the compact as is the case in most questions before the Supreme Court these days; start with the text.

 

In interstate compacts, like the Pecos River compact, once ratified by Congress, have the status of federal law. One of the features of interstate compacts that govern river systems is the appointment, under the compact, by the supervising court of a river master, or water master, whose responsibility, in a day-to-day capacity, is to apply the compact and deal with disputes that arise under it—to basically be the administrator of the river.

 

Generally speaking, water masters are officers appointed by a court that enter the decree, or the judgement, that establishes the parties' relative rights to the river water. As such, in federal court, there are species of master that would be appointed under Federal Rule of Civil Procedure 53.

 

The river master deals with most of the day-to-day administrative questions that arise under the compact. If the parties to the compact aren't satisfied with the river master's resolution of an issue, either party can file a motion in the supervising court to review the master's report and recommendation. This should also sound fairly familiar to the way certain matters are handled in federal district courts by magistrate judges.

 

In this instance, the river master for the Pecos compact decided in New Mexico's favor that of the water it had been storing in one of its reservoirs for Texas' benefit, it only needed to deliver the amount stored net of evaporation. This has the effect of leaving an amount in New Mexico's reservoir equal to the amount that had evaporated and making that water available for New Mexico's use.

 

Now, the United States, through the Bureau of Reclamation, also has an interest in this case and appeared in oral argument yesterday as a friend of the Court. The Bureau of Reclamation has a role in managing the operation of the reservoirs where the water was stored, both the flood water in Texas and Texas' water in New Mexico.

 

At oral argument yesterday, the United States argued in support of New Mexico; that the river master's evaporation deduction from New Mexico's water delivery obligation was correct under the compact.

 

It's an interesting question, though, or procedural oddity why this case is being heard in the Supreme Court because, so far, it should sound like a fairly routine kind of factual dispute that you would rarely see the Supreme Court deciding.

 

Not all interstate compacts result from original actions in the Supreme Court. Many of them -- for example, I'm familiar with interstate compacts between California and Nevada regarding the Truckee River, between California and Oregon regarding the Klamath River. At least as to the California-Nevada Compact, the Truckee River Compact, that originated from an action in federal district court in Nevada. So, when there were disputes concerning that compact, they were resolved, initially, in federal district court in Reno.

 

But this particular compact arises from an original action between Texas and New Mexico that is in the Supreme Court's original jurisdiction. The Supreme Court entered the order approving the compact, which was then ratified by Congress, and the Supreme Court actually appoints the river master under this compact.

 

Review of the river master's decisions under the compact is only in the Supreme Court and directly to it. So this is why the Supreme Court of the United States, we saw yesterday, dealing with the unusual, and for Supreme Court watchers, entirely un-cert-worthy question of which side of the Texas-New Mexico water evaporated water belongs on.

 

In order to answer this question, the parties made competing arguments under the text of the compact. Texas' position is that there's no explicit provision of the compact which allows the river master to make an evaporation deduction for water that had been stored in a reservoir.

 

New Mexico, on the other hand, supported by the United States, says that the river master was allowed to interpret a different provision of the compact which provides for evaporation deductions for water that is being conveyed down the river, and that the river master's reading of the compact to allow that kind of deduction to be applied to water stored in a reservoir was valid.

 

Now, under Supreme Court precedent, interstate compacts are interpreted under the principles of contract law. This was reemphasized in another recent Supreme Court decision involving Texas and one of its other neighbors, this time Oklahoma, in a 2013 decision concerning the interpretation of the Red River Compact.

 

You can see Justice Sotomayor's very well-written opinion for the unanimous Court in Tarrant Regional Water District v. Herrmann, which is at 569 U.S. 614.

 

Now, there are some interesting legal issues that a lot of Supreme Court watchers, I think, would find very interesting that arise from interstate compacts. Among them is whether a federal agency with responsibility to administer some part of the compact is entitled to Chevron, or some other type of deference, in its interpretation of the compact.

 

In a Third Circuit case from two years ago called Wayne Land and Mineral Group LLC v. Delaware River Basin Commission, that's at 894 F.3d. 509, the Third Circuit held that interpretation of interstate compacts by federal agencies is not subject to Chevron deference because, as the Supreme Court had held in Tarrant, compacts are to be interpreted as contracts and not as though they were statutes.

 

On the other hand, the D.C. Circuit has indicated that it thinks it's appropriate, at least in certain situations, for federal courts to defer to agency construction of agreements or contracts. We see this in, for example, National Fuel Gas Supply Corp. v. FERC, which is a D.C. Circuit decision in 1987, where the Court held that an agency with responsibility to administer agreements into which it was statutorily authorized to enter was entitled to Chevron deference in the interpretation of those agreements absent some contrary indication.

 

And much more recently, in Scenic America Inc. v. Department of Transportation in 2016, the D.C. Circuit afforded Chevron deference to the Department of Transportation's interpretation of the contract.

 

The Supreme Court denied certiorari in that case in October 2017, but Justice Gorsuch, in a statement respecting denial of cert, jointed by the Chief Justice and by Justice Alito, noted a circuit split on the question of whether courts should defer to agency interpretation of contracts. For those who are interested, you can see Justice Gorsuch's statement at 138 S.Ct. Reporter 2 (2017) for the discussion.

 

Alas, for Supreme Court watchers with an interest in admin law issues, in Texas v. New Mexico, none of the parties clearly raised this issue of whether anybody is entitled to deference, particularly what sort of deference the river master is entitled to in interpreting the compact.

 

Even though the United States, acting as amicus curiae, supports New Mexico's reading of the compact as allowing the deduction for evaporation losses, the United States, through the Bureau of Reclamation, does not argue that it is entitled to deference in that reading.

 

Instead, the Court yesterday was dealing with far more mundane questions:  Do to the particular provisions of this compact allow for the evaporation deduction that the river master allowed, and the even, perhaps, more mundane questions of whether New Mexico had waived a claim for the deduction by not raising it in 2015, and whether equitable issues on either side of the case favor upholding or reversing the deduction.

 

Now, on these questions, the Supreme Court, frankly, to my listening to the argument and reviewing the transcript, seemed to struggle quite a bit. The questioning, especially given the format for its telephonic hearings, seemed generally unfocused, and a couple of the justices simply passed on their opportunity to ask questions during New Mexico's argument time.

 

Perhaps the best indicator of how the Court deals with the unusual complex factual issue within its original jurisdiction is illustrated by Justice Alito's question to Texas' attorney early in the argument. Justice Alito asked as follows. "Counsel, could you explain by explaining very briefly, as a practical matter, what is at stake here? What would happen if you win, and what would happen if you lose?"

 

Even after the parties' briefing, you've got members of the Supreme Court grappling with what's actually at stake in the case. I don't think that that's a knock on the briefing. I think it's simply the case that the Supreme Court, as an ultimate appellate body, does not frequently deal with these sorts of factual issues and struggled somewhat in that capacity. The parties, in briefing that, probably tend to forget that. So that may be a word to the wise there.

 

After Texas answered Justice Alito's question, he went on to observe that the case was significantly complicated by the fact that all the parties—Texas, New Mexico, and the Bureau of Reclamation—had spent a number of years dealing with the question of what to do with the Texas water that had been delayed in New Mexico—how to account for it, how much should be delivered—sidestepping the normal authority, the normal channels by which each state was authorized to make official communications and take positions regarding the compact and that only later did the parties revert to an attempted technical resolution of the dispute under the terms of the compact.

 

I think that, to wrap up my opening remarks, I think that this observation is the real takeaway from a case like this. This type of argument over a dispute like this is rare in the Supreme Court, but they're fairly common in federal district courts, certainly around the western United States. But there are significant interstate water disputes that are alive in various parts of the country. Georgia and Florida have had an on-again, off-again running dispute over water resources that span both states, and there are a number of them around the country.

 

Complex water management regimes like these are usually, I think just as a matter of human nature, handled very informally with an effort to collaboratively resolve disputes or to avoid the expense or delay involved in trying to resolve the questions technically.

 

But this has predictable effects when that informal effort is unsuccessful. At the point when the parties revert to try and resolve the dispute under the technical terms of their decree or compact, they find themselves without the right factual record because they've been pursuing the questions in different ways and trying to get a fact finder—either the river master or the supervising court—to decide something that is very difficult to figure out in the first instance, and then, as Justice Alito noted in oral argument yesterday, badly obscured by the parties' usually fairly long-running effort to resolve the dispute in different ways.

 

I have to say, from yesterday's argument, that it's anybody's guess, frankly, whether the Court sides with Texas or with New Mexico. I don't think anything in the argument gives a clear signal which way a majority of the justices lean, and it will be interesting to see how they do resolve it.

 

My sense, in listening to the arguments and reviewing the briefs, is that Texas probably has the better textual reading of the compact; that the compact does not allow the river master to award a deduction or a credit, if you will, for reservoir of aberration. But it's far from clear to me that that textual reading of the compact will be the final step in the Supreme Court's resolution of it, and the equitable factors between the two states could cut either way.

 

With that, I'll conclude my remarks and see if there are questions about the case or the argument.

 

Nick Marr:  Great. Thanks, Tony. We'll open up the floor to audience questions now. Tony, I'll start with just the first question. Who do you think might write this opinion?

 

Anthony L. Francois:  Well, that's a very interesting question. As I mentioned, Justice Sotomayor wrote an opinion for the unanimous Court in the Tarrant Regional Water District case in 2013. I would not be surprised if she has the opinion in this case. Her questions yesterday were fairly technical, I would say.

 

But I think it's also a good bet that Justice Gorsuch could write the Court's opinion. He's the only westerner on the Court. He hails from Colorado and likely has an actual—well, I shouldn't say actual understanding as though the other justices don't understand the case—but experience with complex water law other than as a sitting Supreme Court justice. He, interestingly, was one of the justices that declined to ask any questions during New Mexico's argument yesterday.

 

Those two would be my bet: either Justice Sotomayor or Justice Gorsuch.

 

Nick Marr:  Okay. We'll go to our first caller now.

 

Caller 1:  Yes, thanks very much. Interesting and odd little case. I'm intrigued by your comments about the application of Chevron deference, potentially, to the river master.

 

As I understood you described them, and I've never heard of this role before, but if they're in the role of a magistrate judge or a special master, they seem more like an Article III officer rather than what I would think -- when I think of Chevron deference to an agency, I'm usually thinking of Article I. Or, I'm sorry. Article I created but Article II executive agency.

 

Wouldn't the deference that's extended typically fall more into traditional judicial categories: deference to fact, deference to law, de novo review, that sort of thing?

 

Anthony L. Francois:  No, that's a very good point, and I probably misspoke in discussing deference to the river master's interpretation of the compact. I was trying to suggest that the Bureau of Reclamation, which has a role in administering the compact separate from the river master, could potentially have asked for Chevron deference in its interpretation of the compact in support of New Mexico's position.

 

There are some interesting cases around the country in which the Bureau of Reclamation in particular has claimed deference to its interpretation—things like irrigation contracts with irrigation districts—and even to its interpretation of state law that governs certain aspects of federal irrigation projects.

 

But the standard of review of the river master's decisions on factual matters appears to be clear error. That is the standard that Texas identified in its briefing, and Chief Justice Roberts actually asked a couple of questions to nail that down.

 

But, of course, the argument that Texas is making is not really that the river master made a factual error in calculating the amount of water that had evaporated. There doesn't seem to be a lot of argument about whether that number is correct but rather that the river master's interpretation of the compact is legally erroneous, and that is a de novo review question.

 

And yet, a lot of the briefing from New Mexico sounded in, "Look, you've got a river master that does most of the hard work in administering this decree. It would be the right thing to do, just in terms of judicial efficiency, to approve the decisions, all the decisions, unless they're just outlandish, that the river master makes."

 

      My sense, generally, is that that tends to be how federal district courts approach review of magistrate judge reports and recommendations, whatever the legal fine points are. Article III judges are going to be loath to routinely disagree with the other judicial officers that help them do their work.

 

The other aspect of this is that it's very difficult to completely tease apart factual determinations that the river master, who is a judicial officer, makes under the decree from legal interpretations. This case is a fairly good example of what looks like mostly a legal question:  Does the compact allow this type of deduction to be made?

 

But the river masters and water masters, under water rights decrees, they are appointed for a reason, which is that both legally and in practice, the courts, whether federal or state, that have ongoing jurisdiction over these decrees, because they are judgements -- a water rights decree consists mainly of a judgement that the parties to the case have certain relative rights to the water source and a continuing injunction that retains the court's jurisdiction over the judgement so that it can be enforced without the necessity for the parties to file a new case.

 

      Courts, generally, are very loath to be roped into the business of day-to-day, or even year-to-year, supervision of these decrees, and as a matter of judicial efficiency—and I think this is generally true of the Supreme Court as well—tend to afford a significant amount of informal deference to the way the river masters and water masters administer the decrees.

 

      My sense is that, if there's any clear indication of the outcome in this case, is that the Court could easily look at this as a one-off type of dispute without significant precedential effect that they need to worry about. In that case, the easy path is to simply affirm the river master and not worry about it too much. Too bad, so sad for Texas if that's the outcome.

 

      Hopefully that was responsive to the question. I think there is an ongoing -- because there are interstate compacts that deal with all kinds of different things. The Third Circuit case I discussed involving the Delaware River Water Commission has to do with regulations that that commission, which administers an interstate compact governing the Delaware River, issued that regulate hydraulic fracking.

 

      The parties, and there are even non-parties to the decree, the compact that the Delaware River Water Commission administers, challenging that commission's authority under the compact to regulate fracking.

 

      I think, as a general matter, the way compacts are interpreted and whether agencies that administer them have any deference due to them is probably a question that will arrive at the Court even if not in this case.

 

Caller 1:  I really appreciate the clarification. Thank you very much, and don't assume that you misspoke. I may have misheard. If I may, just a quick follow up not related to this, but actually a separate question that arose.

 

      You mentioned that they're likely to apply contract law in this, like litigants do. This is a contract. I'm curious which law? Is there a choice of law question? I don't know if it was raised or pled or what or if the relative riparian rights laws of New Mexico versus Texas are at issue, but as a generally principle -- we're all taught in law school that there is no federal common law, and contract law is a creature of common law, so I'm curious which contract law is at issue here?

 

Anthony L. Francois:  Well, that is a fair question. Interestingly, nothing in the briefing, that I noted, and certainly nothing in the argument, suggested that there are any differing principles of contract law between the two states or any vestigial post-Erie federal common law would resolve that question.

 

      I think that the basic principles of it are what you see in the 2013 Supreme Court decision in Tarrant Regional Water District, which is that you apply the text of the contract to the extent that it is clear, and that where it's vague, rather than using statutory interpretation techniques like consulting legislative history, you would use contractual interpretation techniques, some of which are similar but others of which are different. Some of the canons of construction do not apply in contracts.

 

      For those interested in this more generally, in Scalia and Garner's very good book on interpretation called Reading Law, there are separate sections on the canons for interpretation of contracts and canons that are only applicable to interpreting contracts. It clarifies some of the differences between the two efforts.

 

      But I think the primary question there would be whether there's any what you would call legislative history of the compact. And that's an interesting question because in addition to being an agreement between the parties, compacts are also adopted by Congress; they have to be ratified by Congress to go into effect.

 

      And yet, the Supreme Court has said they're not interpreted like statutes are; they're interpreted as contracts.

 

      So that's a little more comprehensive overview of it. But in this case, again, neither party was arguing for a different rule of interpretation. I would actually have to look at the compact for this particular thing. I haven't looked for it as to whether there is even a choice of law provision in it or a similar provision that would say if there's a dispute how to interpret this; here's the choice of law.

 

      One thing to say, though, is that it's different than, for example, if a private party or local agency in Texas was in a separate agreement with either the State of New Mexico or some local district or private entity in New Mexico over something like a water delivery. There, you would probably have some fairly difficult choice of law provisions.

 

      It is the case in water law in the west that you can divert water from a source in one state and put it to beneficial use in another. States differ on whether the applicable state law is the one where the water is diverted or the one where it's put to beneficial use.

 

      So probably the shortest version of a sound answer to that question is that these kinds of choice of law questions are why water lawyers are in high demand in the western U.S. and tend to prosper on those questions.

 

Caller 1:  Great. Thank you very much.

 

Anthony L. Francois:  Thank you.

 

Nick Marr:  Our next question now. Caller with the area code 303, you have the floor.

 

Steven Leonhardt:  Yes, Tony. This is Steve Leonhardt. I am a water lawyer in Denver, but I'm not very familiar with this case. I was curious is the compact interpretation question here at issue of applying the compact to facts and circumstances that the framers of the compact didn't necessarily contemplate?

 

Anthony L. Francois:  Yes. I think that's definitely the case. One of the reasons for that—this gets down one level of detail into the equitable arguments that are being made—is that the compact -- I want to say the date on the compact is 1949. One of the river master's annual obligations is to calculate credits and deductions for each state in the operation of the river based on a set of baseline conditions it obtained in 1949.

 

      One of things that made that difficult in this case, if I understand the details of it properly, is that one of the reservoirs that Texas operates—in fact, the one that held the flood water that prevented it from taking delivery of the stored water it was supposed to receive from New Mexico—has not been adequately maintained and its storage capacity has degraded by some 30,000 acre-feet.

 

      One of New Mexico's equitable arguments is "It's Texas' own damn fault that it couldn't take its water in the first place not the storm that generated flood water because if Texas had maintained its reservoir, at least to the designed capacity, we wouldn't have had to hold their water."

 

      That's one aspect of it. I think, more fundamentally, what Texas is arguing is that there's no provision in the compact for evaporation deductions for water stored in reservoirs, and there is a provision for evaporation losses. So if you have to deliver 100 gallons of water to the state border, the compact tells you, based on an assumed evaporation rate in transit down the river, how much water you have to actually release on the New Mexico side to give Texas the volume of water they're entitled to.

 

      So because the compact deals with that question but does not authorize an evaporation deduction for reservoirs, the compact, in Texas' view, doesn't allow such a deduction.

 

      I think New Mexico's point is reasonably well taken: The compact doesn't anticipate that Texas would not maintain its reservoir capacity or that we'd wind up with these complex flood flows that would result in long-term reserving water that couldn't be delivered.

 

      One of the things I think is important about that problem is that many of these compacts predate most of the federal environmental statutes. Because there are federal parties to the compacts, most parties to them are loath to reopen them for any reason in order to deal with these more operational unforeseen issues because opening them brings in NEPA, the ESA, and various things like that.

 

      To a certain extent, yes, this is dealing with things that the compact didn't foresee, but the consequences of reopening the compact in order to deal with them officially is probably too high a price for any party to pay.

 

I think that leads, then, to Justice Alito's observation. The parties recognize this is a situation that the compact doesn't actually deal with and go through a lot of effort to try to figure it out, but if they can't, then they're falling back on an agreement that doesn't actually provide for the dispute they're having.

 

Steve Leonhardt:  Great. And I did have a follow-up question. What is the position that the U.S. is taking in this case, and what was the highlight of the solicitor general argument?

 

Anthony L. Francois:  Well, the United States is supporting New Mexico's position that this was a reasonable interpretation of the compact by the river master. The procedural posture of it is a little odd because of the history below. This flood took place in 2014 and '15. New Mexico did not seek its evaporation credit until 2018, and the record seems to be that, during the interim, there was a lot of back and forth over what to do about the stored water—when it could be delivered, how much had to be delivered.

 

      When it finally became clear that they weren't going to be able to work it out, New Mexico simply asked the water master to retroactively amend the 2015 annual report that is supposed to have closed this. The 2015 report closed this issue without awarding an evaporation deduction.

 

      Again, this gets into another level of detail on the facts of the case, but one of the specific arguments that Texas made is that there's a 30-day deadline following the annual report to object to anything in it, and that New Mexico waived this when they failed to, within the 30 days after the 2015 report, seek review of it in the Supreme Court to be awarded an evaporation deduction.

 

      The river master, in order to make a retroactive deduction, also amended a handbook. So this begins to look even more like agency practice. There's the compact and, then, interpreting the compact. There's a manual, or a handbook, that the river master uses that interprets the compact and provides procedures that aren't in the compact for how the river master does things.

 

      What the Bureau of Reclamation argued yesterday was that it was permissible and reasonable for the river master to modify its procedures, sounds like more or less on the fly, in order to award this retroactive evaporation deduction.

 

      Its position is in support of New Mexico and, generally, in support of the river master's authority to basically use equitable means to resolve disputes that aren't clearly resolved by the decree.

 

Steve Leonhardt:  Thank you.

 

Nick Marr:  Okay, so we don't have any more questions at this time. While we're waiting for questions, Tony, one question that came to my mind is you mentioned in your opening remarks that the Court hears these kind of original jurisdiction cases every few years. What do you think these kinds of cases say about the Court and the role of the Court in our constitutional system?

 

Anthony L. Francois:  Well, most of what the Court does today is cases that it hears on grant of cert. Basically, what we generally think of as appeals from the circuit courts. The Court's original jurisdiction over disputes between states is, for practical purposes, discretionary now.

 

      I think that it is simply loath to do these cases, to handle these cases, if it doesn't have to. This, as I mentioned, is a fairly old decree going back to 1949, a compact. The docket on the Court's website for this case, this case number, goes back to 1960. Every year, there's a motion filed by the river master for approval of compensation and expenses to the river master. Every so often, there's an objection to the river master's annual accounting.

 

      It's the type of thing that the Supreme Court, which is very jealous of its docket and very careful of what it takes, probably sees as its responsibility to hands because it's an ongoing case, but that it's not going to spend more bandwidth than it needs to in hearing them and resolving them.

 

      So that's kind of an institutional aspect of it, but I think it also -- you almost wonder if Congress might look at something where the Supreme Court could transfer jurisdiction over some of these compacts to a district court somewhere or provide for multi-judge district courts from both states and a neutral state to hear disputes like this.

 

This is the type of thing that's really not -- as the Court's docket focuses more and more on significant legal questions that cut across a lot of boundaries and are broadly precedential for lots of litigants in the country, these original action cases tend not to be that at all. They rarely produce, in my reading of them, significant precedent for other areas of law or even necessarily for water law. So the Supreme Court is probably not the litigant's best court to be in.

 

That's, I think, something that may emerge over time is the idea that the Congress ought to authorize the Supreme Court to transfer jurisdiction over these cases to some other type of court that could adequately supervise them without using the Supreme Court's bandwidth on what tend to be factual disputes as long-time appellate judges. With nothing against the Supreme Court justices, this is not their strong suit to deal with.

 

Nick Marr:  Interesting. We don't have any questions in the queue right now. We have about ten minutes left, so I'll offer you the chance for any closing remarks. If we happen to get a question, maybe we'll go to it, but anything you want to close with today?

 

Anthony L. Francois:  Well, I think we covered it pretty well. The only other observation I'll make is that, due to the death of late Justice Ginsburg, it is an even-numbered Court, but I really don't think that this is the type of case where a vacancy on the Court at the time of hearing will play much of a role in resolving the case. I'd be quite surprised if the justices were split 4-4 on this.

 

      Based on that, I would look for an opinion in this probably on the early end, probably in November, and that this will be one of the cases that they can deal with fairly easily with an eight-member Court.

 

Nick Marr:  Okay. I think we'll close it out here today since we haven't gotten any additional questions. On behalf of The Federalist Society, I want to thank you, Tony, for the benefit of your valuable time and expertise today.

 

      For the audience, we welcome listener feedback by email at [email protected]. As always, be checking our website and your emails for announcements about upcoming teleforum calls. We'll have a couple tomorrow covering the oral arguments on a couple cases: Tanzin v. Tanvir and Google v. Oracle. That'll be tomorrow afternoon.

 

      Thank you all for joining us today. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.