Transcript

IN THE SUPREME COURT OF THE UNITED STATES

STATE OF TEXAS, Plaintiff v. STATE OF NEW MEXICO

No. 65 Orig.

March 30, 1983

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:10 o'clock a.m.

APPEARANCES:

R. LAMBETH TOWNSEND, ESQ., Assistant Attorney General of Texas, Austin, Texas; on behalf of the Plaintiff.

CHARLOTTE URAM, ESQ., Special Assistant Attorney General of New Mexico, Santa Fe, New Mexico; on behalf of the Defendant.

PROCEEDINGS

CHIEF JUSTICE BURGER: We will hear arguments first this morning in the original jurisdiction case, the State of Texas against the State of New Mexico.

Mr. Townsend, you may proceed whenever you are ready.

ORAL ARGUMENT OF R. LAMBETH TOWNSEND, ESQ. ON BEHALF OF PLAINTIFF

MR. TOWNSEND: Mr. Chief Justice and may it please the Court, this is a suit to enforce the Pecos River Compact. Texas and New Mexico intended the Compact to equitably apportion the waters of the Pecos River between the states. The Compact contemplates continuing administration of the Pecos River in conformity with the terms of the Compact.

The Compact imposes upon New Mexico, the upstream state, the obligation not to deplete by man's activities the state line flow below that available to Texas under the 1947 condition.

The controversy between the states as to the meaning of the 1947 condition precipitated this lawsuit. The Special Master rejected the conflicting contentions of the states concerning the 1947 condition and defined the 1947 condition in his 1979 report. His 1979 report was confirmed in all respects and his definition of the 1947 condition was approved.

Since that time, we have been attempting to translate the definition of the 1947 condition into water quantities to provide a numerical standard by which compliance can be measured. The states disagree as to the procedure to implement the definition of the 1947 condition. As a result, numerous hearings have been held and the Master has issued his report and recommendations.

The Master has recommended that the New Mexico motion to dismiss the suit be denied, that the Texas motion to substitute the double mass analysis for the river routing as the accounting procedure be denied --

QUESTION: But without prejudice to the --

MR. TOWNSEND: Without prejudice for further consideration at the Commission.

Also, he recommended that the United States representative on the Pecos Commission or some third party be vested with the power to participate in Commission deliberations and to vote when the states are not able to agree.

He then recommended that the matter should be returned to the Commission for the performance by it of its duties and that the Court retain jurisdiction.

QUESTION: Mr. Counsel, do you think the Master rejected Texas' motion to use the double mass analysis on the merits, or did he just decide that it shouldn't be decided until other issues are resolved?

MR. TOWNSEND: I do not believe that he rejected the double mass on its merits.

QUESTION: The language is unclear, is it not?

MR. TOWNSEND: It's -- the Master found the double mass to be an accounting procedure useful in the inflow-outflow method. However, he was concerned about some language that the engineer advisors to the Compact negotiators used in their report, and based on their statement the allocation shouldn't be based on a straight line he felt it was not proper for him to use the double mass.

Texas contends that Texas has addressed the concerns of the engineer advisors and that double mass is based upon a curvolinear basis as opposed to straight-line percentage. Texas believes that the Master has not rejected the double mass on its merits. He -- there are not sufficient findings in his report to reach that conclusion.

The primary position of Texas is that this suit not be dismissed and that the Court retain jurisdiction so that the disputes between the states may be resolved by whatever means the Court deems appropriate. If the suit is dismissed, Texas' only alternative is to take -- to try to take steps to institute an equitable apportionment of the waters of the Pecos River between the states.

However, Article XIV of the Compact provides that it takes the action of the legislatures of both states to terminate the Compact. So this Compact provision may prevent Texas from seeking the remedy of equitable apportionment. However, Texas believes that this Court has jurisdiction to continue the suit to a complete resolve of the disputes concerning the Compact.

Texas accepted the Master's recommendation that a tie-breaker vote be placed upon the Commission. This was not a Texas idea. Texas has never argued this, but Texas accepted that as a practical solution to an ongoing problem. Because this is not a Texas idea, we prefer to rely upon the argument of the Master contained in his report for support of that recommendation.

Texas would like to move to its alternative exceptions in the event the Court does not accept the Master's recommendation that a tie-breaker vote be placed upon the Commission.

QUESTION: In other words, you feel we have the power to impose that tie-breaker proposition, even though this is a compact between states?

MR. TOWNSEND: Yes, Your Honor. We feel that you do have the power to do that because it would carry out the express intent and purpose of the Compact, and those primary purposes were to provide an equitable apportionment of the use of the waters, and to remove the causes of present and future controversies.

QUESTION: What is the basic trouble with the Commission? Why can't the states' representatives agree?

MR. TOWNSEND: As the Master has found, the good faith differences as far as engineering judgments as to the procedure to implement or to determine whether or not compliance with the Compact is continuing.

QUESTION: Certainly the Compact is deficient, isn't it, in this respect?

MR. TOWNSEND: It's deficient. This particular compact, like many other compacts, provides for a unanimous vote, and there are no mechanisms to resolve impasses when the commissioners cannot agree.

QUESTION: So the -- either you appoint a tie-breaker or you make the determination yourself that the Commission should make.

MR. TOWNSEND: Your Honor, I believe that the Court --

QUESTION: That's your second suggestion, isn't it?

MR. TOWNSEND: Our second suggestion is that the Court retain jurisdiction and as --

QUESTION: And proceed to determine the --

MR. TOWNSEND: Whether or not New Mexico has fulfilled its obligations. That necessarily requires --

QUESTION: And to do that despite the fact that the Compact calls for that decision to be made by the Commission?

MR. TOWNSEND: The Commission is granted the power to make certain factfindings concerning the obligations.

QUESTION: But you think we have the authority to take the place of the Commission in that respect?

MR. TOWNSEND: Yes, Your Honor, because --

QUESTION: Just like we have the authority to appoint a tie-breaker, you think.

MR. TOWNSEND: Well, I think it's within this Court's jurisdiction to fashion remedies to resolve the dispute.

QUESTION: Yes. All right.

QUESTION: Well, where is -- what's the source of our authority to appoint a tie-breaker? It's not the compact itself by construction, is it?

MR. TOWNSEND: It's not -- you're right --

QUESTION: You can't construe the compact as authorizing?

MR. TOWNSEND: Not any specific terms other than --

QUESTION: Well, then, what do you think is the source of our authority to appoint a tie-breaker?

MR. TOWNSEND: According to the Master, it's your equitable powers to do the essence of equity, is to do equity and fashion a mode.

QUESTION: Well, he cited nothing to support that. Do you have anything to suggest?

MR. TOWNSEND: The only other thing that I have to suggest that is the case of Virginia versus West Virginia, which has been cited by the parties for the proposition that the Court can enforce its judgments even though that may require or involve state governmental instrumentalities.

QUESTION: And you don't think that's different in the case of -- don't you think that's different where the states themselves have entered into a compact? If this had just been a dispute between the states, I could see the merit in your argument, but is that true when there's a compact that the states have entered into?

MR. TOWNSEND: Well, in Virginia versus West Virginia there was a compact, and the court, in reaching its conclusion, held that the congressional power to consent to agreements between the states necessarily implied the congressional power to legislate an enforcement of that compact. But the court determined that the fact that Congress can legislate a solution does not prevent the court from exercising its jurisdiction under Article III to resolve a controversy between the states.

QUESTION: When you strip the form away from this idea of a tie-breaker, wouldn't the tie-breaker in effect be a super-special master who would merely advise this Court in which way to break the tie?

MR. TOWNSEND: I would envision the tie-breaker to be an ongoing participant in the Commission.

QUESTION: Well, then it would be contrary to Vermont against New York and to other cases from this Court.

MR. TOWNSEND: If he's viewed as an arbiter, yes.

QUESTION: As a super-special master particularly with --

MR. TOWNSEND: Exactly.

QUESTION: Certainly then it would be outside of our decisions entirely.

MR. TOWNSEND: I agree. I believe the Master's idea is a novel one and we are not necessarily --

QUESTION: Don't we have to declare the compact unenforceable, non-enforceable?

MR. TOWNSEND: To do --

QUESTION: I don't see how we can act under the compact. If you get rid of the compact, then I could understand, but to say that we are a tie-breaker under the compact to me is not quite correct, because it's not mentioned in the compact.

QUESTION: Where would you find the authority to -- where would you find the authority to, if we didn't appoint a tie-breaker, to go ahead and exercise the authority of the Commission?

MR. TOWNSEND: Well, I believe that it's a controversy between the states, be it, even though the Compact is involved, is within the Court's jurisdiction under Article III, controversies between the states.

Texas has alleged that New Mexico has violated the Compact. In order to determine whether or not New Mexico has violated the Compact, there must be an implementation of the Master's definition of the '47 condition to create the numerical standard by which compliance can be measured.

QUESTION: Well, why would this be much different -- why is what Texas is asking much different than saying there is a dispute between New Mexico and Texas over the apportionment of water and just like if you're litigating that without a compact you would look at the boundary that Congress has established between Texas and New Mexico to decide, you know, where the Pecos flows from New Mexico into Texas?

Here, in addition, you've got another statute of Congress, a compact, which says something about the water rights in the states. Why couldn't the Master simply treat that the same way he does the boundary statute and say we've got two Federal statutes here and we've got to work with them?

MR. TOWNSEND: I believe that he can, and that has been our -- that's the argument of our alternative exceptions, that the determination of the measure is necessary in the inquiry of has there been a violation of the Compact, and in Texas' opinion that is a judicial inquiry, a judicial function and was stated in Prentiss versus Atlantic Coast Lines, 211 U.S. 210, a 1908 case.

We have not cited that, but in that case it states that a judicial inquiry investigates, declares, and enforces liabilities based upon past or present facts and under existing law. And I believe that Texas contends that that is the situation with this law suit, that the Compact could have been written without a Commission to make a factfinding, and it would have been -- the duty would have been upon the states to do their own accounting to see that there was compliance, and if the states felt like there was non-compliance then its remedy is exactly what it is today under the Compact.

QUESTION: If one state accuses the other state of violating the compact, the only way you can get redress is for the other state to admit they did wrong. Is that what the Compact says?

MR. TOWNSEND: Well, Your Honor, I think it would also encompass us proving that the other state did wrong. The Compact provides that the findings of the Commission are not conclusive in any court. It specifically provides that, so the Compact negotiators were anticipating court action to enforce the Compact.

There are no enforcement powers in the Pecos River Commission as enforcement powers are in the usual range of federal administrative agencies and others.

QUESTION: Well, is there anything more to it than verbiage about a tie-breaker? Suppose it said that I just will decide this as the Master and he had not said a tie-breaker.

MR. TOWNSEND: We have been requesting the Master to do exactly that, Your Honor.

QUESTION: That's what I thought.

MR. TOWNSEND: And we have argued that the Court should make that decision, that it can make that decision, but we accepted his recommendation because it seemed to be a practical solution.

The -- Texas is, as I said --

QUESTION: May I ask you a question right here?

MR. TOWNSEND: Yes, Your Honor.

QUESTION: Is it correct that what the tie-breaker would do would be to resolve disputes on some of these underlying findings, how much water was available in 1947 and so forth? Is there any issue that you would submit to the tie-breaker that the Master could not himself decide if he didn't suggest that he wasn't -- didn't have the expertise to do so? He has this rather strange paragraph in his opinion, that it's an awfully tough case and he doesn't have the expertise to decide it.

MR. TOWNSEND: That's right, Your Honor. Texas believes that the Master can make any of the decisions necessary in determining whether or not the Compact has been violated.

QUESTION: It would seem to me that both sides really are in agreement on that, if I'm not mistaken. The only person who's balking is the Master.

MR. TOWNSEND: It appears to be, Your Honor. That's the case. The United States has --

QUESTION: The United States says the same thing.

MR. TOWNSEND: -- contends that this Court has jurisdiction to continue the law suit and to make all necessary determinations in that suit.

QUESTION: How many days has he actually spent in hearings on this case since it was last here?

MR. TOWNSEND: Last March we had approximately two weeks of hearings and I became involved in the suit in 1981 and we have probably had a total of 15 days of hearing.

QUESTION: And during those hearings have you -- have they been spent receiving evidence or has a lot of the time been devoted to negotiation and argument?

MR. TOWNSEND: The last two weeks -- the two-week period in last March was receiving evidence, and the evidence was that -- presented -- Texas presented the double mass analysis as the accounting procedure and then it submitted evidence as an alterative a river routing procedure that it felt, believed to be an accurate procedure that would accurately depict that definition.

QUESTION: You didn't rest exclusively on your double mass analysis, as I understood it. You had an alternative theory of how to figure out the numbers, don't you?

MR. TOWNSEND: We had an alternative theory, and that's the double mass.

QUESTION: And that -- evidence pertaining to that is in the record, but there's no resolution

MR. TOWNSEND: It's in the record. No resolution. We were anticipating a resolution of those issues in the report, but the Master has taken a different tack.

QUESTION: Those hearings were pursuant to a pre-trial order?

MR. TOWNSEND: Those hearings were pursuant not to the original pre-trial order. Those hearings were pursuant to an order that was issued, I believe, in December of '81 and the hearings were in March of '82.

QUESTION: Mr. Townsend, the Compact itself, in Article VI seems to indicate that unless and until a more feasible method is devised and adopted by the Commission that the inflow-outflow method will be used. Would it be your position that if the Court were to direct the Master to proceed, that notwithstanding that clear provision of the Compact, that some other method should be considered?

MR. TOWNSEND: Your Honor, the double mass analysis is an inflow-outflow method. It is an accounting procedure that can be used in --

QUESTION: Yes, except it says the method as described in the report of the engineering advisory committee will be used.

MR. TOWNSEND: All right. In respect to that, what is described in the engineering advisory report is a statement that the inflow-outflow method involves the determination of the correlation between the index of the inflow and the outflow from the basin. That, in the view of the Master and in view of the Texas, is the inflow-outflow method described and defined in the report of the engineer advisors.

What also is contained in the report of the engineer advisors is a river routing study that is what we have been referring to throughout as the S.D. 109 river routing, which produced the Plate 2 standard of measurement. In the 1979 report, the Master found that river routing to be incorrect, inconsistent and contained omissions.

Therefore, he held that river routing to be a nullity and that is why he defined the 1947 condition in the terms that this Court approved. So when you revert -- the Compact specifically says that the 1947 condition is that situation described and defined in the report of the engineer advisors, just like the language in Article VI.

So by the Master's early ruling, he has made that phrase, as described and defined in reference to the river routing, a nullity. There is a void at that point and Texas contends that the controlling language is "shall use the inflow-outflow method" and then we look at page 149 of S.D. 109, and that is where the statement is that the inflow-outflow method involves the determination that the correlation between the upstream -- or the index of the inflow and outflow from the basin.

Texas contends that if the Court were to remand it back to the Master to proceed, then he is left with the choice as to any inflow-outflow method to depict the 1947 condition and is not restricted to a river routing.

Texas proposed the inflow-outflow method because the Master repeatedly expressed his concerns about the river routing. The river routing has too many, he continually said, the river routing has too many unmeasured values, too many judgment-dependent techniques. That has caused the problem between the states and he was -- expressed his desire that some other method could be used.

Texas proposed the double mass. The double mass eliminates the judgment-dependent techniques and eliminates the unmeasured values. And with that understanding Texas proposed this as a solution and a superior method to the laborious river routing.

The Pecos -- in regard to the claim that continuation of the suit would require this Court to perform administrative functions, Texas replies that this is not -- this is a suit to enforce the Compact. This is a suit to enforce Federal rights that are created by the Compact, since it is the law of the Union, and that it is completely a judicial function to determine those rights, even though it may require making those difficult decisions concerning the engineering procedures.

Texas submits that this process is easier than the difficult processes involved in an equitable apportionment suit, because the Compact limits your inquiry to a certain extent. Admittedly, it's not simple, but it is not as difficult as an equitable apportionment.

QUESTION: Did the Commission adopt the river routing method ever?

MR. TOWNSEND: The Compact, yes, Your Honor, they did. The Compact negotiators used the river routing, and that was going to be the basis. And the RBD -- excuse me.

QUESTION: That wasn't stated in the Compact.

MR. TOWNSEND: The Compact stated that the 1947 condition is that situation described and defined in the report of the engineer advisors, and when you look at the report of the engineer advisors there is a river routing.

QUESTION: And has the Commission proceeded on, purported to proceed on that basis?

MR. TOWNSEND: The Commission has not proceeded very far, Your Honor, but they were attempting to utilize the river routing in S.D. 109 from the beginning of the Compact administration.

QUESTION: Well, why is it consistent with the Compact to adopt another method for determining the 1947 condition?

MR. TOWNSEND: Because the Compact requires the use of an inflow-outflow method and there are more inflow-outflow methods than the river routing.

QUESTION: Although you say the legislative history of the Compact indicates that the river routing was anticipated to be the method to be employed.

MR. TOWNSEND: That was the method at that time, in 1949. The double mass is an outgrowth -- I think is a method that has been used by engineers, but the present-day superiority of it is due to the fact of the advancement and statistical analysis and to computers and to the present day we believe that the Commission should not necessarily be saddled with an antiquated approach when there is something else available.

QUESTION: May I ask, do you understand the result of the first report in this Court's decision, the last time the case was here, that entirely repudiated the report of the Engineering Advisory Committee or just said it shouldn't be controlling?

MR. TOWNSEND: I agree with the Master, Your Honor, that he has found the RBD to have been adopted by the Commission solely for the purposes of finding facts between 1950 and 1961 and then, I think, '62, and not used -- adopted by the Commission for future purposes, accounting purposes.

So Texas submits that RBD has been utilized for a limited period but not accepted as the standard for the future and that the Master is correct in his finding.

I have retained a few minutes for rebuttal and if there are no further questions, I will --

CHIEF JUSTICE BURGER: Very well, Mr. Townsend.

Miss Uram.

ORAL ARGUMENT OF CHARLOTTE URAM, ESQ. ON BEHALF OF DEFENDANT

MS. URAM: Mr. Chief Justice and may it please the Court, Justice Stevens, you asked whether all sides agreed that the Master could make all the necessary determinations, and Mr. Townsend answered yes, and that's correct, except that the parties disagree on the nature of the Court's review and the extent to which it can take action on behalf of the Commission or action that's delegated to the Commission.

The Court here is presented --

QUESTION: But isn't it true that one of the problems is getting an understanding of some of the basic underlying facts -- how much water -- how much of the water was flowing in 1947 and so forth? And the Commission is supposed to make some of those findings and has been unable to do so.

Is it not correct the Master could make those factual findings if he would decide between the contending parties?

MS. URAM: No, Your Honor. That is where we disagree.

QUESTION: I see.

MS. URAM: The Court in this case is presented with two very different ways of dealing with disputes from interstate compact agencies. One way, New Mexico's way, takes a standard administrative and statutory law approach. The compact is a law. The commission is a statutory agency and the Court's review is structured, it is limited accordingly.

The other approach, Texas' approach, would require the Court to get into the detail of disputes between compact agencies and in instances rewrite compacts, write rules and methods under compacts.

QUESTION: I take it from your brief and what you say that you say we have no more authority to do what Texas suggests or the Master has, that he has no more authority to go forward than we have to appoint a tie-breaker.

MS. URAM: That's correct -- not to do the things that Texas asked. The Master can review the decision that the Commission made. There is a particular decision that the Commission made that brought the parties to the court and was the subject of this dispute for the first eight years of the case.

QUESTION: Well, then, how is this problem going to be resolved? You say they can't agree. The Master has no authority, and we have no authority to appoint a tie-breaker.

MS. URAM: There is something for the Court to review to resolve the dispute. Justice Blackmun asked what the problem was here, and the problem here is that the Commission made a decision. That decision, the adoption of the review of basic data, is not a finding of fact. And that decision is similar to an administrative rule, a rulemaking by an administrative agency.

It sets the standard to be applied to make findings of fact and those findings of fact go to whether New Mexico is delivering the correct amount of water to Texas. So the Commission unanimously -- Texas and New Mexico agree -- adopted this review of basic data.

In 1974, over a decade after the Commission had adopted it and begun drafting further documents based on it, the State of Texas repudiated the review of basic data and brought this law suit. The Court then went on to determine -- to make various determinations regarding the Commission's authority to adopt the review of basic data after the Court in 1980 decided the Commission had authority to make such a change. Texas then raised dispute as to specific items in the review of basic data. She complained about eleven specific decisions. We are now down to four. We have only four items remaining in that dispute.

New Mexico urges the Court to direct the Master that his role is to review those four remaining items as the Court reviews an administrative decision.

QUESTION: Miss Uram, the Master found that the review of basic data was developed only for the period of 1950 to 1961 and so it does not answer the questions for the future. I mean, that was the Master's determination.

MS. URAM: That's what the Master said, and the first time he said it was in 1979 in his last report, but at the time that he said it then he also he had not yet reached the consequence of that decision or that issue and indeed there had been no discussion of it before 1979.

QUESTION: The United States in its brief also, if I remember correctly, indicated that we certainly can't decide everything based on the review of basic data, that maybe it's a guideline to be employed but that it won't solve all the problems.

MS. URAM: The review of basic data may not solve all the problems, but the Master's understanding or ruling that the review of basic data was not to be applied in the future was wrong.

The Compact is set up so that there should never be a time when there is not a method to be applied. It established a method in the first place. It said that you're supposed to use the method as to the inflow-outflow method, as described in the report of the Engineering Advisory Committee. That method should continue to be used until the Commission changes it. The Commission has authority to change it.

So that method continues until the Commission changes it. The next method continues until the Commission changes it again, and the Compact does not envision adoption of a method to be applied only for a limited period. It is an ongoing administrative measure, a technique, and in fact, when you look at what the Commission did here, the Commission did not say we adopt the review of basic data to be used for findings of fact for a 12-year period.

They had worked a decade making the corrections in the review of basic data so that the routing method could work. After they worked a decade, they said we adopt it for use in all actions and findings, for all actions and findings of the Commission. And then they went on, clearly explaining their intention to use it that way.

They told the Committees to go ahead and prepare the next set of findings and prepare a draft inflow-outflow manual, both based on the review of basic data. So the Master erred when he said that the review of basic data was intended to be used only until 1962 and certainly the first eight years of this litigation indicate that everyone understood that the review of basic data was still the subject of this suit.

It was -- the entire pre-trial order is written toward the early phases, the question whether the Commission acted within its authority to adopt it, and then whether certain technical portions are valid.

QUESTION: Basically are you requesting that the Master quantify the water as of 1947 and then provide for annual distribution techniques?

MS. URAM: No. Texas is asking that the Master come in and make those kinds of determinations. The determinations of how you translate the 1947 condition, what standard or method you use, are contained in the review of basic data.

The Master's role in an administrative law context, which is the one New Mexico urges as the appropriate one here, is to review the method and say whether it is valid within the statute -- a standard, traditional type of judicial function.

Instead --

QUESTION: Well, Miss Uram, what is the authority for your position that the Master and, ultimately, this Court can sit as a reviewing court to review the findings of the Compact agency? Ordinarily, those sort of things are set out in the statute, that the agency does certain things and then a court does certain other things, and here you're just kind of superimposing this Court on the agency without any statutory structure.

MS. URAM: You're correct, Your Honor. Ordinarily --

QUESTION: Doesn't the Compact itself say that the determinations of the Commission are reviewable in the Court?

MS. URAM: Yes. It says findings of fact are reviewable in court.

QUESTION: Does it say in what court?

MS. URAM: No. It says in courts or in administrative agencies findings of fact are prima facie evidence.

QUESTION: Well, this would be the first agency, I think, that had its findings directly reviewable in the Supreme Court.

MS. URAM: That's probably true, Your Honor. But the -- this Compact, you will recall, was signed in 1948 and the Administrative Procedure Act was signed only two years -- was enacted only two years before. In modern compacts one will see a good deal of the type of language one sees in the Administrative Procedure Act, with specifications as to period for review and so forth.

But certainly in an early compact like this, the language will be somewhat different. But the basic framework is the same. The -- since World War II particularly we have been seeing an increase in the growth of compacts and these compacts have had interstate agencies charged with positive powers. Those compacts have not simply been an adjustment of a one-time dispute.

They have positive inter-governmental powers, and the question is how is the Court going to deal with disputes from these agencies.

QUESTION: Do these more recent compacts that you refer to which specify agency authority and court review specify the court in which the review shall take place?

MS. URAM: In some instances, they do. For example, the Washington Metropolitan Area Transit Authority Compact, the one that governs transportation here in the District of Columbia, specifies that review from certain types of things shall go to one type of court and review from other types of things will go to another type of court.

QUESTION: Neither specify this Court, I take it.

MS. URAM: I don't recall that they do.

But what we have here is we have a situation where undoubtedly there will be disputes between states on how these -- on decisions that these agencies make, and if those disputes are brought to this Court, the question is how should the Court deal with this. Should the Court be called upon to jump in and make all the findings that are delegated by the compacts to commissions? Is that the correct role of the Court?

Or is it, rather, to take that great body of administrative law which has been developed in the last 40 or 50 years and use the principles there to --

QUESTION: What standard of review? What standard of review by the Court?

MS. URAM: Well, the standard -- I would think the appropriate standard would be the one that the Court used to apply before it had statutes such as the Administrative Procedure Act. The Court would look to whether the action is constitutional, whether it complies with the statute, whether it was done properly under the procedures in the statute, and whether it was reasonable.

So there are -- there are standards to look to. They are basically in the Compact, and we urge the Court that the states here, they agreed to shoulder these responsibilities themselves.

QUESTION: But isn't it true that all the examples you give are situations in which there is a neutral factfinder or a neutral administrative law judge of some kind to start with? Here you have a situation in which there are two parties, either of which can veto the findings, and if you have a situation in which one decides to be obstinant -- and I'm not suggesting either has -- and just doesn't agree to anything, you simply can't apply the principles you describe.

MS. URAM: Well, we have here a special situation. That's correct, Your Honor. But we have a decision to be reviewed and there doesn't seem to be any reason --

QUESTION: It seems to me one of the initial problems is you have a lot of decisions that haven't even been made in the first instance.

MS. URAM: Oh, well, you see, Your Honor, the situation is really a little simpler than it looks. There is a lot of detail in the case and it does give one the impression that the situation's more complicated than it appears to be.

QUESTION: You identified four specific controversies that remain unresolved.

MS. URAM: Yes.

QUESTION: Now is it possible that the Master could, if he felt himself qualified to do so, could have decided each of those four issues?

MS. URAM: Yes. The Master --

QUESTION: Well, why do we have to worry about administrative review? Isn't it just a question of somebody going ahead and making the decisions?

MS. URAM: Well, because Texas says that -- Texas tells the Court not to look at those four issues any more but to choose another method.

QUESTION: Well, he agreed a few minutes ago that the Master simply hadn't decided some things that would have moved the case along.

MS. URAM: That's correct.

QUESTION: You seem to be saying the same thing.

MS. URAM: We say the Master --

QUESTION: You identify different issues. I understand that, but apparently he hasn't decided any of these issues.

MS. URAM: We agree on the same four issues. The place where we part is that Texas says the Master can substitute another method, one that's never been brought before the Commission, for the method that the Commission decided on.

QUESTION: But they also have an alternative position, that even if he doesn't buy the double mass analysis argument, go ahead and use the routing approach.

MS. URAM: That's correct. But then we part again.

QUESTION: And you won't get either.

MS. URAM: Because New Mexico says after you've made this basic decision the dispute will be resolved and the matter should go back to the Commission for administration. The appropriate body to make corrections in the review of basic data is the Commission. The Court says what is invalid, if anything's invalid in those four remaining disputes, and then sends it back to the Commission for correction. Texas --

QUESTION: Well, has the Commission already decided all those four? Has the Commission already addressed those four issues?

MS. URAM: The Commission adopted the review of basic data. These four issues are challenges to the review of basic data.

QUESTION: Yes.

MS. URAM: And, Justice White, I don't even know if these four issues remain, because Texas in open court before the Master said that if she had a hearing on the double mass method she would waive any remaining issues on the review of basic data.

So if this case goes back to the Master and takes an administrative law rather than an open-ended approach, the Master would not then have to go on and make findings of fact and determine how much water was at a certain point at a certain time. That would not be his responsibility. That would be the responsibility of the Commission.

The matter should then be remanded to the Commission.

QUESTION: What if they continue in their present state of mind? How is this matter going to be resolved?

MS. URAM: Let's take the -- if the matter is remanded to the Commission, in 1980 Texas counsel said that if New Mexico prevailed on the review of basic data there would be no problem working things out because Texas would abide by that decision. So all the Commission would have to do, if everything works as it should, is proceed with the -- to apply the review of basic data to make findings of fact to the present.

It could also proceed to consider the double mass diagram if Texas chooses to bring it before the Commission.

QUESTION: But it would require the Commission to go back and quantify the datas based on the principles established in the review of basic data.

MS. URAM: That's correct. There would be additional engineering and other types of decisions that would need to be made.

Now let's take --

QUESTION: And at this point they've been unable to agree for some years.

MS. URAM: They had a dis -- it's not a situation where they've been unable to agree. The language of impasse and deadlock has made the problem sound as if it is an extraordinary problem we have here, and certainly unanimity does cause some additional delays and problems, but the problem here is --

QUESTION: Is the problem that two of you couldn't agree and they had to put a tie-breaker in? Is that the problem that's here now?

MS. URAM: The problem here is --

QUESTION: Is that the problem?

MS. URAM: Yes and no.

QUESTION: Well, assuming that it is, does it make any sense to send it back to those same two people?

MS. URAM: Yes.

QUESTION: On the same point?

MS. URAM: Yes, because what happened --

QUESTION: Well, what makes you think they'll agree now?

MS. URAM: Because one of them questioned the Commission's authority to do what it had done, and questioned the validity of what was done. If the Court completes judicial review and it completed the first phase -- yes, there is authority -- the second phase is, is it otherwise valid.

If the Court completes it, the Commission has its answer. This is what the Commission fell into dispute about. The Commission agreed to something. It continued to operate that something for a time. Then one of the parties decided that in fact it no longer agreed with its earlier agreement, and it brought various claims that were legitimate legal claims to the Court.

The Court should review those legitimate legal claims. In the meantime, the Commission hasn't acted and it has been a long suit. So increasingly, as time goes on, everyone gets more concerned about the impasse and the deadlock on the Commission.

Well, the problem's a fundamental one. If we could resolve this fundamental problem, which is nearly completed, the Commission would at least have its answer to the first phase, to the thing that blocked the Commission. They worked for 20 years. They were able to agree for 20 years, and they had problems then. But they were able to agree. They came to the review of basic data and they agreed upon it.

Now we have --

QUESTION: You certainly do suggest that Judge Breitenstein really had no conception of what the case was all about, that he should just have referred it back to the Commission.

MS. URAM: Judge, this has been a very difficult case for the Special Master. The parties have been pulling the Special Master in many directions and I'm sure with the degree of detail it's been frustrating for him. But we have had some conceptual difficulties in recent times, but particularly with where the case is going.

Part of the problem is the issue of unanimity, and the Court has indicated a concern as well. What does unanimity do here? Why is it in the Compact? Isn't it going to create distortions in the way these compacts work? And perhaps I can take just a moment to discuss the two reasons for having unanimity in the Compact and then discuss a worst case situation -- what happens if the states simply do not agree when you get back to it.

The obvious reason for having a unanimity requirement in the Compact and, as counsel for Texas correctly pointed out, that's a common requirement in interstate water compacts. But the common reason is that the states here are delegating to an administrative body the authority to make decisions that will affect those states in the future, and they will agree to do this interstate cooperation. It is in everyone's interest, but at the same time they want to protect their citizens and their sovereignty.

So the way that they retain control of the obvious state protection is in this unanimity requirement. The delegation here to the Commission was unusual for its time. In its day, it was unusual to have a commission given the authority to change the method for administering the compact. So one can see that the states had some concern that they not be bound in ten or 20 or 50 years by something they have no say over.

The other reason for unanimity requirement is one suggested by the scholars in the field. Interstate relations are different from other kinds of relations, and to the extent that they succeed, they succeed on the basis of cooperation. So what compacts try to do when they require unanimity is to set up a way that the compact will work.

Now Texas has said that there's no enforcement mechanism here. The legislative history in Senate Document 109 at page 124 indicates that it was anticipated that when the states came to a finding the upstream state, New Mexico, if it was not delivering sufficient water, would then proceed voluntarily, without any court enforcement, to go and make the necessary decisions under the Compact to shut certain users down.

The unanimity requirement is tied with other measures to push the states to come to such agreement, and the measures here are the binding nature of the compact and the difficulty of getting out of it. The states had had disputes for 30 years --

QUESTION: Well, of course, if nothing ever happens under the compact, probably no one wants to get out.

MS. URAM: If -- I'm sorry. I don't quite understand.

QUESTION: Well, if there isn't any enforcement mechanism and, as you say, the procedures are voluntary, then a party who feels that the compact isn't giving that state the fair share that the agreement provided for may feel very strongly something should be done but the party which feels that it's really getting the lion's share, which I suspect may more often than not be the upstream state, may be perfectly content with a rather ineffectual compact organization.

MS. URAM: Well, let's apply it to this specific situation, and I disagree with the characterization, Your Honor, that it is ineffectual. I think it's set up to function in a different way than modern statutes because of the interstate nature of the disputes.

But applying the notion to this particular situation, is New Mexico, as an upstream state, in an position where she should be happy with the Compact. She is satisfied with the Compact, but lest the Court be confused about what New Mexico's doing under the Compact, she limited her uses to the 1947 condition. She made a compromise and she has been shutting down users.

She has been controlling use on that river. She shut down about 14,000 acres in the 1950s and '60s to comply with the Compact. When people use water illegally we have a Special Master, we have metered wells in that area. That is an unusual requirement. We go out and we track violation and we enforce this requirement.

We take our statutory obligation very seriously and we -- that is why we are before the Court asking for it and trying to explain our view that the Court really can't change a requirement on us 50 years down the road or 40 years down the road, doesn't have the authority to do that. Only the Commission can change a requirement.

What the Court's role is is to review the Commission dispute that brought the parties to the Court.

QUESTION: But having said all that -- and I'm sure the state is acting in good faith -- it nevertheless remains true that even in good faith you may be shortchanging the downstream state, because they obviously in good faith think they're getting less water than the Compact calls for.

MS. URAM: And the --

QUESTION: And if there's a stalemate, that can't help them.

MS. URAM: That's correct, Your Honor. The stalemate is something that may cause a problem to Texas. It may shortchange Texas if New Mexico is not delivering the correct amount of water to Texas.

We are not taking advantage of that situation, though, Your Honor. I assure you that New Mexico has continued to enforce the 1947 condition obligation as she understands it, and if the Commission -- and as the Commission decided, you know, we're relying on the Commission's earlier decision which we have been defending all through the law suit.

QUESTION: That decision showed there had been some shortage, 5,300 acre feet, and that --

MS. URAM: It's a total of 5,000 acre feet, but it did not go on to decide that New Mexico was responsible for that shortage.

QUESTION: Was it attributable to man's activities?

MS. URAM: Well, they didn't make a decision one way or the other. That's an unusually small amount of deficiency, but that indicated to New Mexico that she was doing something right. If upon completion of judicial review it turns out that New Mexico was doing something wrong, New Mexico -- let's say the Master reviews the remaining issues and says that certain things were done improperly.

The Commission then goes on, having the benefit of judicial resolution of that particular dispute. Let's say the Commission goes on to make the further determinations. Then the situation would be one where New Mexico would say all right, we have a deficit of this amount and would then proceed to take the necessary action to shut down users on the river, as required by the deficit.

QUESTION: May I ask one other question? Your basic position is the Court can't rewrite the Compact, in your exception.

MS. URAM: That's correct.

QUESTION: Didn't the Court do exactly that a few years ago?

MS. URAM: I'm sorry. I didn't hear the rest.

QUESTION: Didn't the Court do exactly that a few years ago in accepting the Master's redefinition of the 1947 condition?

MS. URAM: No, Your Honor, I don't think they did. The difference here -- we had a term to be interpreted there, a 1947 condition, and there was a question of when it began and whether it was a real or artificial condition. Did it begin on December 1, December 30, March 20? Was it a condition that was meant to be reflected on the river, or was it a condition technically defined somewhere regardless of what the real condition was?

So there the Court was defining a particular term. The difference here is that Texas is asking the Court not to define a particular term in a statute but go to into uncharted areas and regardless of what the Compact requires require a tie-breaker or require a new method or make certain findings that are delegated to the Commission.

So it's not a matter of interpreting, which is a standard judicial function. It is a matter of taking on the entire administration of the Compact and rewriting it, as Texas sees fit as well. So that is the basic dichotomy in the presentation of the two states. It's two completely different ways of -- two completely different ideas of what the Court's role should be in interstate compact commission disputes.

New Mexico asks the Court not to take that broader role and throw itself into the suit as if this were an equitable apportionment suit, when it is in fact a compact suit, to recognize that the states agreed to shoulder that responsibility under the Compact. They agreed to do that. They agreed that the Compact would be binding and that agreement is something which New Mexico, as I indicated before, has tried to honor through all the years of this dispute.

New Mexico asks the Court to put this case back on course first by recognizing the binding nature of the interstate Compact, secondly by giving structure and form to judicial review in interstate compact commission cases and, third, by returning the appropriate responsibility to the administrative compact -- by returning the responsibility under the Compact to the appropriate administrative body, which is the Commission.

Thank you.

CHIEF JUSTICE BURGER: Do you have anything further, Mr. Townsend?

ORAL ARGUMENT OF R. LAMBETH TOWNSEND, ESQ. ON BEHALF OF PLAINTIFF - REBUTTAL

Mr. Townsend: Thank you, Mr. Chief Justice.

The upstream state benefits from delay in decision and confusion in the Commission. Such injures Texas. This is not a suit to review administrative actions, and I believe counsel for New Mexico misspoke herself about the Compact providing for a review.

It clearly states that the findings of fact made by the Commission shall not be conclusive in any court but shall constitute prima facie evidence. That is not the language used in the conventional standard of review, the conventional standard of review being that the administrative decisions are conclusive if they are supported by substantial evidence and not the result of arbitrary and capricious actions.

That is the standard that New Mexico is trying to impose upon this particular Compact, and this Compact Commission is quite different. First, it's not a Federal agency. Second, it does not use the language of -- the conventional language of substantial evidence review. It has no enforcement powers, and the Court in Dyer versus Sims recognizes that this Court finally determines the nature and scope and enforcement of these compacts.

QUESTION: So you think any determination of the Commission would be subject to de novo determination in a court.

MR. TOWNSEND: According to its express terms, it would be prima facie evidence and the party would have an opportunity to rebut and to contradict findings of the Commission.

QUESTION: So you wouldn't review it on the record?

MR. TOWNSEND: You would not review it on the record. There's no due process procedural mechanism to protect and to present a record as Mr. Justice Stevens, I believe, pointed out. There's not an objective, non-biased body that's reviewing the facts, that can take the testimony of both sides, and make a decision.

QUESTION: Tell me. Your opposition says that the Commission adopted the BRD or whatever it is, and directed that a manual be prepared, and then what happened? When did all this so-called disagreement start?

MR. TOWNSEND: The disagreement started --

QUESTION: This deadlock.

MR. TOWNSEND: -- I believe after the RBD was used for findings of the delivery between 1950 and 1961.

QUESTION: Yes.

MR. TOWNSEND: For that period it directed them to continue to perfect and to iron out problems that were even in that.

QUESTION: The Commission anticipated that that method be used in the future, didn't it?

MR. TOWNSEND: Well, it anticipated that a river routing be used and that the river routing for the findings for that period be continually perfected, so it was not saying here is the yardstick and this is the yardstick we're using forever. It said keep on working on it. And that's where disagreement came and there has been --

QUESTION: A disagreement ever since.

MR. TOWNSEND: -- there is not a decision since then.

QUESTION: Since '61?

MR. TOWNSEND: Since '61. And, as a matter of fact, using RBD, the findings did find a substantially more than 5,000 acre feet as being under-delivered, but Texas excused a substantial portion -- I believe 40,000 or something in that neighborhood -- but excused it.

And so the result was this 5,000 that they didn't go forward with. So it was not a complete -- a small amount.

Thank you, Your Honor.

CHIEF JUSTICE BURGER: Very well. Thank you, counsel. The case is submitted.

(Whereupon, at 11:11 o'clock a.m., the case in the above-entitled matter was submitted.)