Professor Marguerite Chapman comments on Tarrant Regional water rights case

Monday, April 29, 2013

Published in The Journal Record, April 24, 2013

By M. Scott Carter
The Journal Record

No watertight solutions
Experts say more work needed on Tarrant Regional case

WASHINGTON, D.C. – The 6-year-old legal battle between Texas and Oklahoma over water rights could be referred back to federal district court because the issue is so complex that the record needs to be expanded, two water law experts said Tuesday.
 
Though the U.S. Supreme Court heard arguments Tuesday afternoon in the lawsuit, Tarrant Regional Water District v.  Herrmann, the nation’s high court, the Associated Press wrote, appeared skeptical of Tarrant’s claim that it had the right to cross into Oklahoma to obtain water for the Fort Worth area.
 
Legal experts said the court would be inclined to send the case back to federal district court for more work.
 
“The (Chief Justice John G.) Roberts court tends to try and decide issues on a very narrow basis,” said Marguerite Chapman, a law professor at the University of Tulsa. “Decisions are reached on very narrow grounds.”
 
Because Tarrant’s case requires interpreting language of the Red River Compact, Chapman said, the high court would be tempted to remand it back to federal district court to expand the record.
 
“I think that further factual development would be a very tempting way for this court to decide this case,” she said.
 
A transcript of Tuesday’s argument shows that the justices questioned Tarrant’s reading of the agreement.
 
“This clause, the one that you rely on, is kind of sketchy, isn’t it?” said Justice Ruth Bader Ginsburg. “Doesn’t say how they’re going to get it, if they’re going to pay for it. There’s a lot to be filled in.”
 
Charles Rothfeld, the TRWD’s attorney, countered that the language in the compact wasn’t sketchy at all.
 
“It is quite clear that all four of the compacting states are in the language of the compact, have equal rights to the use of water, defined water in a defined area of the subbasin, so long as no state uses more than 25 percent of the water,” Rothfeld said. “That is quite expressed as to what is required.”
 
Jim Milton, a shareholder with the law firm Hall Estill, said he would not be surprised to see the court return the case.
 
“It wouldn’t surprise me at all,” Milton said. “In so many of these cases there is more work to be done after an appellate court resolves some of the legal issues.”
 
Milton, an expert in water litigation, said should the court rule in Tarrant’s favor, it would be the equivalent of treating the north Texas water district as an Oklahoma resident.
 
“That seems to run afoul of water rights in the state,” he said.
 
Supreme Court Justice Stephen Breyer also questioned the idea of allowing Texas to take water from within Oklahoma’s borders.
 
“Does that mean that a state can, when it can’t get its pipeline to the river, go into some other state and take the water out of that other state?” Breyer asked. “I mean, I would have thought, if that was their intent, there would be a mechanism for doing it, that you’d have some authority set up by the compact that would decide where, whether it’s really true, and how are we supposed to do it.”
 
But the Red River Compact, Breyer said, has no such mechanism and doesn’t say anything about allowing one state to cross over into another state’s borders.
 
“It’s left to the state courts in different states to try to do what is an extremely complex and controversial administrative job,” he said.
 
Milton said he didn’t expect the court to embrace arguments made by the Oklahoma City Water Utilities Trust and Tarrant Regional that the Sardis Lake reservoir was constructed for each party’s use. Briefs filed by each group claimed full rights to the southeastern Oklahoma lake.
 
Milton said that argument would need additional fact finding – from a lower court.
 
“If Tarrant Regional and the state of Texas are relying on the history of the construction of the Sardis reservoir and some expression of the congressional intent, it would seem to be something that would require additional proceedings at federal district court,” he said. “I don’t think the Sardis issue is going to be the interest.”
 
Chapman, an expert on the history of the water compact, said she expected the court to instead focus its interest on language in the four-state agreement.
 
“I would think the more conservative block of the court would be focused more on the language of the (Red River) compact,” she said. “The compact’s history of negotiations shows a lot of attention to state’s rights.”
 
Should the court reject Texas’ arguments and affirm the 10th Circuit’s ruling, she said, the effect would be to put the ball back into the hands of the Red River Compact commissioners.
 
A ruling in the case is expected this summer.

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