TARRANT REGIONAL WATER DISTRICT v. HERRMANN
Tarrant Regional Water District (Tarrant) supplies water to north-central Texas. In 1955, Congress allowed Arkansas, Louisiana, Oklahoma, and Texas to negotiate an agreement allocating the water from the Red River, which forms the boundary between southeastern Oklahoma and northeastern Texas. In 1980, the states signed the Red River Compact and Congress ratified it.
In 2007, Tarrant sought to appropriate water from three locations in Oklahoma for use in Texas and applied to the Oklahoma Water Resources Board (OWRB), which was established to regulate in-state and out-of-state water usage. On November 1, 2007, Tarrant sued the OWRB and sought declaratory and injunctive relief against the Oklahoma statutes on water usage. Tarrant argued that the statutes placed burdens on interstate water commerce that are unconstitutional under the Commerce Clause and overstep the bounds of the Compact that Congress allowed the states to establish. OWRB moved for summary judgment, and the district court granted it. The U.S. Court of Appeals for the Tenth Circuit affirmed.
Did Congress’ approval of an interstate water compact illustrate congressional intent to allow state laws to interfere with interstate commerce in water?
Does the Compact preempt protectionist state laws that restrict state access to water to which they are entitled under the Compact?
Legal provision: Red River Compact
No, no. Justice Sonia Sotomayor delivered the opinion for the unanimous Court. The Court held that the Compact’s silence regarding state lines indicated an understanding that the Compact was meant to respect state lines, so state statutes do not conflict with the Compact’s allocation of water. Long-running precedent supports the principle that states do not cede water rights within their own territories. Any other reading of the Compact would create jurisdictional and administrative confusion. The Court also held that the Compact does not violate the Commerce Clause by allowing states to interfere in interstate commerce because the Compact does not leave water unallocated for states statutes to affect.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
TARRANT REGIONAL WATER DISTRICT, PETITIONER v. RUDOLF JOHN HERRMANN et al.
on writ of certiorari to the united states court of appeals for the tenth circuit
[June 13, 2013]
Justice Sotomayor delivered the opinion of the Court.
The Red River Compact, (or Compact), 94Stat. 3305, allocates water rights among the States within the Red River basin as it winds through Texas, Oklahoma, Arkansas, and Louisiana. Petitioner Tarrant Regional Water District (Tarrant), a Texas agency, claims that it is entitled to acquire water under the Compact from within Oklahoma and that therefore the Compact pre-empts several Oklahoma statutes that restrict out-of-state diversions of water. In the alternative, Tarrant argues that the Oklahoma laws are unconstitutional restrictions on interstate commerce. We hold that Tarrant’s claims lack merit.I A
The Red River (or River) begins in the Llano Estacado Mesa on the border between New Mexico and Texas. From this broad plain, it first runs through the Texas Panhandle and then marks the border between Texas and Oklahoma. It continues in an easterly direction until it reaches the shared border with Arkansas. Once the River enters Arkansas, it turns southward and flows into Louisiana, where it empties into the Mississippi and Atchafalaya Rivers.
As an important geographic feature of this region, the Red River has lent its name to a valley, a Civil War campaign, and a famed college football rivalry between the Longhorns of Texas and the Sooners of Oklahoma. But college pride has not been the only source of controversy between Texas and Oklahoma regarding the Red River. The River has been the cause of numerous historical conflicts between the two States, leading to a mobilization of their militias at one time, Oklahoma v. Texas, 258 U. S. 574, 580 (1922) , and the declaration of martial law along a stretch of the River by Oklahoma Governor “Alfalfa Bill” Murray at another, see Okla. H. Res. 1121, 50th Legislature, 2d Sess. (2006) (resolution commemorating “Alfalfa Bill” Murray’s actions during the “Red River Bridge War”). Such disputes over the River and its waters are a natural result of the River’s distribution of water flows. The River’s course means that upstream States like Oklahoma and Texas may appropriate substantial amounts of water from both the River and its tributaries to the disadvantage of downstream States like Arkansas and especially Lou-isiana, which lacks sufficiently large reservoirs to store water.
Absent an agreement among the States, disputes over the allocation of water are subject to equitable apportionment by the courts, Arizona v. California, 460 U. S. 605, 609 (1983) , which often results in protracted and costly legal proceedings. Thus in 1955, to forestall future disputes over the River and its water, Congress authorized the States of Arkansas, Louisiana, Oklahoma, and Texas to negotiate a compact to apportion the water of the Red River basin among themselves. See Act of Aug. 11, 1955, Pub. L. 346, 69Stat. 654. These negotiations lasted over 20 years and finally culminated in the signing of the Red River Compact in 1978. Congress approved the Compact in 1980, transforming it into federal law. See Act of Dec. 22, 1980, 94Stat. 3305; Compact, 1 App. 7–51.
One of the Compact’s principal purposes was “[t]o provide an equitable apportionment among the Signatory States of the water of the Red River and its tributaries.” §1.01(b), id., at 9. The Compact governs the allocation of water along the Red River and its tributaries from the New Mexico and Texas border to its terminus in Louisiana. §§2.12(a)–(e), id., at 13. This stretch is divided into five separate subdivisions called “Reach[es],” ibid., each of which is further divided into smaller “subbasins,” see, e.g., §§5.01–5.05, id., at 22–26 (describing subbasins 1 through 5 of Reach II). (See Appendix A, infra, for a map.)
At issue in this case are rights under the Compact to water located in Oklahoma’s portion of subbasin 5 of Reach II, which occupies “that portion of the Red River, together with its tributaries, from Denison Dam down to the Arkansas-Louisiana state boundary, excluding all tributaries included in the other four subbasins of Reach II.” §5.05(a), 1 App. 24–25. (See Appendix B, infra, for a map.) The Compact’s interpretive comments 1 explain that during negotiations, Reach II posed the greatest difficulty to the parties’ efforts to reach agreement. Comment on Art. V, 1 App. 27. The problem was that Louisiana, the farthest downstream State, lacks suitable reservoir sites and therefore cannot store water during high flow periods to meet its future needs. The upstream States (Texas, Oklahoma, and Arkansas), which control the River’s flow, were unwilling to release water stored within their own reservoirs for the benefit of any downstream States, like Louisiana. Without any such release, there would be no guaranteed flow of water to Louisiana.
The provisions of the Compact relating to Reach II were crafted to address this problem. To this end, Reach II was divided into five subbasins. The upstream subbasins, numbered 1 through 4, were drawn to end at “existing, authorized or proposed last downstream major damsites,” see, e.g., §5.01(a), id., at 22, on the tributaries leading to the Red River before reaching the main stem of the River. These dams allow the parties managing them to control water along the tributaries before it travels farther downstream and joins the flow of the main stem of the River. For the most part, the Compact granted control over the water in these subbasins to the States in which each subbasin is located. 2 The remaining subbasin, subbasin 5, instead requires that water be allowed to flow to Louisiana through the main stem of the River at certain minimum levels, assuring Louisiana an allocation of the River’s waters and solving its flowthrough problem.
The provision of the Compact central to the present dispute is §5.05(b)(1), which sets the following allocation during times of normal flow:
“(1) The Signatory States shall have equal rights to the use of runoff originating in subbasin 5 and undesignated water flowing into subbasin 5, so long as the flow of the Red River at the Arkansas-Louisiana state boundary is 3,000 cubic feet per second [hereinafter CFS] or more, provided no state is entitled to more than 25 percent of the water in excess of 3,000 [CFS].” 3 Id., at 25.
In these normal circumstances (i.e., when flows at the Arkansas-Louisiana border are above 3,000 CFS), this provision and its interpretive comment make clear that “all states are free to use whatever amount of water they can put to beneficial use.” Comment on Art. V, id., at 30. But if the amount of water above 3,000 CFS cannot satisfy all such uses, then “each state will honor the other’s right to 25% of the excess flow.” Ibid. However, when the flow of the River diminishes at the Arkansas-Louisiana border, the upstream States must permit more water to reach Louisiana. 4 Subbasin 5’s allocation scheme allows upstream States to keep the water that they have stored, but also ensures that Louisiana will receive a steady supply of water from the Red River, with each upstream State contributing during times of low flow.
To ensure that its apportionments are honored, the Compact includes an accounting provision, but an accounting is not mandatory “until one or more affected states deem the accounting necessary.” §2.11, id., at 13; see Comment on Art. II, id., at 15–16. This is because the “extensive gaging and record keeping required” to carry out such an accounting would impose “a significant financial burden on the involved states.” Id., at 16. Given these costs, the signatory States did “not envisio[n] that it w[ould] be undertaken as a routine matter.” Ibid. Indeed, it appears that no State has ever asked for such an accounting in the Compact’s history. See Brief for Respondents 45; Reply Brief 11–12.
While the Compact allocates water rights among its signatories, it also provides that it should not “be deemed to . . . [i]nterfere with or impair the right or power of any Signatory State to regulate within its boundaries the appropriation, use, and control of water, or quality of water, not inconsistent with its obligations under this Compact.” §2.10, 1 App. 12. Rather, “[s]ubject to the general constraints of water availability and the apportionment of the Compact, each state [remains] free to continue its existing internal water administration.” Comment on Art. II, id., at 14. Even during periods of water shortage, “no attempt is made to specify the steps that will be taken [by States to ensure water deliveries]; it is left to the state’s internal water administration.” Ibid.B
In the years since the Red River Compact was ratified by Congress, the region’s population has increased dramatically. In particular, the population of the Dallas-Fort Worth metropolitan area in north Texas has grown from roughly 5.1 million inhabitants in 2000 to almost 6.4 million in 2010, a jump of over 23 percent and among the largest in the United States during this period. See Dept. of Commerce, Census Bureau, P. Mackun & S. Wilson, Population Distribution and Change: 2000 to 2010 (Mar. 2011). This growth has strained regional water supplies, and north Texas’ need for water has been exacerbated in recent years by a long and costly drought. See generally Galbraith, A Drought More Than Texas-Size, International Herald Tribune, Oct. 3, 2011, p. 4.
Against this backdrop, petitioner Tarrant, a Texas state agency responsible for providing water to north-central Texas (including the cities of Fort Worth, Arlington, and Mansfield), has endeavored to secure new sources of water for the area it serves. From 2000 to 2002, Tarrant, along with several other Texas water districts, offered to purchase water from Oklahoma and the Choctaw and Chickasaw Nations. See 2 App. 336–382. But these negotiations were unsuccessful and Tarrant eventually abandoned these efforts.
Because Texas’ need for water only continued to grow, Tarrant settled on a new course of action. In 2007, Tarrant sought a water resource permit from the Oklahoma Water Resources Board (OWRB), 5 respondents here, to take 310,000 acre feet 6 per year of surface water from the Kiamichi River, a tributary of the Red River located in Oklahoma. Tarrant proposed to divert the Kiamichi River, at a point located in subbasin 5 of Reach II, before it discharges into the Red River and, according to Tarrant, becomes too saline for potable use.
Tarrant knew, however, that Oklahoma would likely deny its permits because various state laws (collectively, the Oklahoma water statutes) effectively prevent out-of-state applicants from taking or diverting water from within Oklahoma’s borders. These statutes include a requirement that the OWRB consider, when evaluating an application to take water out of State, whether that water “could feasibly be transported to alleviate water shortages in the State of Oklahoma.” Okla. Stat., Tit. 82, §105.12(A)(5) (West 2013). The statutes also require that no permit issued by the OWRB to use water outside of the State shall “[i]mpair the ability of the State of Oklahoma to meet its obligations under any interstate stream compact.” §105.12A(B)(1). A separate provision creates a permitting review process that applies only to out-ofstate water users. §105.12(F). Oklahoma also requires legislative approval for out-of-state water-use permits, §105.12A(D), and further provides that “[w]ater use within Oklahoma . . . be developed to the maximum extent feasible for the benefit of Oklahoma so that out-of-state downstream users will not acquire vested rights therein to the detriment of the citizens of this state,” §1086.1(A)(3). Interpreting these laws, Oklahoma’s attorney general has concluded that “we consider the proposition unrealistic that an out-of-state user is a proper permit applicant before the [OWRB]” because “[w]e can find no intention to create the possibility that such a valuable resource as water may become bound, without compensation, to use by an out-of-state user.” 1 App. 118.
When Tarrant filed its permit application, it also filed suit against respondents in Federal District Court. As relevant here, Tarrant sought to enjoin enforcement of the Oklahoma water statutes by the OWRB. Tarrant argued that the statutes, and the interpretation of them adopted by Oklahoma’s attorney general, were pre-empted by federal law and violated the Commerce Clause by discriminating against interstate commerce in water.
The District Court granted summary judgment for the OWRB on both of Tarrant’s claims. See No. CIV–07–0045–HE, 2010 WL 2817220, *4 (WD Okla., July 16, 2010); No. CIV–07–0045–HE (WD Okla., Nov. 18, 2009), App. to Pet. for Cert. 72a–73a, 2009 WL 3922803, *8. The Tenth Circuit affirmed. 656 F. 3d 1222, 1250 (2011). 7
We granted Tarrant’s petition for a writ of certiorari, 568 U. S. ___ (2013), and now affirm the judgment of the Tenth Circuit.II A
Tarrant claims that under §5.05(b)(1) of the Compact, it has the right to cross state lines and divert water from Oklahoma located in subbasin 5 of Reach II and that the Oklahoma water statutes interfere with its ability to exercise that right. Section 5.05(b)(1) provides:
“The Signatory States shall have equal rights to the use of runoff originating in subbasin 5 and undesignated water following into subbasin 5, so long as the flow of the Red River at the Arkansas-Louisiana state boundary is 3,000 [CFS] or more, provided no state is entitled to more than 25 percent of the water in excess of 3,000 [CFS].” 1 App. 25.
In Tarrant’s view, this provision essentially creates a borderless common in which each of the four signatory States may cross each other’s boundaries to access a shared pool of water. Tarrant reaches this interpretation in two steps. First, it observes that §5.05(b)(1)’s “equal rights” language grants each State an equal entitlement to the waters of subbasin 5, subject to a 25 percent cap. Second, Tarrant argues §5.05(b)(1)’s silence concerning state lines indicates that the Compact’s drafters did not intend to allocate water according to state borders in this section. According to Tarrant, “the ‘25 percent’ language [of §5.05(b)(1)] makes clear that, in exercising its ‘equal rights’ to the common pool of water, no State may take more than a one-quarter share,” Reply Brief 3, but any of the signatory States may “cross state lines to obtain [its] shar[e] of Subbasin 5 waters,” Brief for Petitioner 32.
The OWRB disputes this reading. In its view, the “equal rights” promised by §5.05(b)(1) afford each State an equal opportunity to make use of the excess water within subbasin 5 of Reach II but only within each State’s own borders. This is because the OWRB reads §5.05(b)(1)’s silence differently from Tarrant. The OWRB interprets that provision’s absence of language granting any cross-border rights to indicate that the Compact’s drafters had no intention to create any such rights in the signatory States.
Unraveling the meaning of §5.05(b)(1)’s silence with respect to state lines is the key to resolving whether the Compact pre-empts the Oklahoma water statutes. 8 If §5.05(b)(1)’s silence means that state borders are irrelevant to the allocation of water in subbasin 5 of Reach II, then the Oklahoma water laws at issue conflict with the cross-border rights created by federal law in the form of the Compact and must be pre-empted. But if §5.05(b)(1)’s silence instead reflects a background understanding on the part of the Compact’s drafters that state borders were to be respected within the Compact’s allocation, then the Oklahoma statutes do not conflict with the Compact’s allocation of water.B
Interstate compacts are construed as contracts under the principles of contract law. Texas v. New Mexico, 482 U. S. 124, 128 (1987) . So, as with any contract, we begin by examining the express terms of the Compact as the best indication of the intent of the parties, see also Montana v. Wyoming, 563 U. S. ___, ___, and n. 4, ___, (2011) (slip op., at 5, and n. 4, 17); Restatement (Second) of Contracts §203(b) (1979).
Tarrant argues that because other provisions of the Compact reference state borders, §5.05(b)(1)’s silence with respect to state lines must mean that the Compact’s drafters intended to permit cross-border diversions. For example, §5.03(b), which governs subbasin 3 of Reach II, provides that
“[t]he States of Oklahoma and Arkansas shall have free and unrestricted use of the water of this subbasin within their respective states, subject, however, to the limitation that Oklahoma shall allow a quantity of water equal to . . . 40 percent of the total runoff originating below the following existing, authorized or proposed last major downstream damsites in Oklahoma to flow into Arkansas.” 1 App. 23–24 (emphasis added).
Section 6.03(b), which covers subbasin 3 of Reach III, similarly provides that “Texas and Louisiana within their respective boundaries shall each have the unrestricted use of the water of this subbasin subject to the following [conditions].” Id., at 33 (emphasis added). Thus, §5.03(b) and §6.03(b) mimic §5.05(b)(1) in allocating water rights within a subbasin, but differ in that they make explicit ref-erence to water use “within” state boundaries. Relying on the expressio unius canon of construction, Tarrant finds that §5.05(b)’s silence regarding borders is significant because “ ‘[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed [that] Congress acts intentionally and purposely in the disparate inclusion or exclusion.’ ” Brief for Petitioner 29 (quoting Russello v. United States, 464 U. S. 16, 23 (1983) ).
But Tarrant’s argument fails to account for other sections of the Compact that cut against its reading. For example, §5.05(b)(3), which governs the waters of subbasin 5 in Reach II when flows are below 1,000 CFS, requires that during such periods, Arkansas, Texas, and Oklahoma allow water “within their respective states to flow into the Red River as required to maintain a 1,000 [CFS] flow at the Arkansas-Louisiana state boundary.” 1 App. 25 (emphasis added). Obviously none of the upstream States can redirect water that lies outside of their borders, so the phrase “within their respective states” is superfluous in §5.05(b)(3). In contrast, §5.05(b)(2), which governs when the River’s flow at the Arkansas-Louisiana border is above 1,000 CFS but below 3,000 CFS, requires that upstream States allow a flow to Louisiana equivalent to 40 percent of total weekly runoff originating within the subbasin and 40 percent of undesignated water flowing into subbasin 5 of Reach II. Id., at 25. This language can only refer to water within each State’s borders because otherwise each State would have to contribute 40 percent to the total water flow, which would add up to more than 100 percent. Read together and to avoid absurd results, §§5.05(b)(2) and (3) suggest that each upstream State is individually responsible for ensuring that sufficient subbasin 5 water located within its respective borders flows down to Louisiana, even though §5.05(b)(2) lacks any explicit reference to state lines.
Applying Tarrant’s understanding of §5.05(b)(1)’s silence regarding state lines to other of the Compact’s provisions would produce further anomalous results. Consider §6.01(b). That provision states that “Texas is apportioned sixty (60) percent of the runoff of [subbasin 1 of Reach III] and shall have unrestricted use thereof; Arkansas is entitled to forty (40) percent of the runoff of this subbasin.” Id., at 32. Because Texas is upstream from Arkansas, water flows from Texas to Arkansas. Given this situation, the commonsense reason for §6.01(b)’s 60-to-40 allocation is to prevent Texas from barring the flow of water to Arkansas. While there is no reference to state boundaries in the section’s text, the unstated assumption underlying this provision is that Arkansas must wait for its 40 percent share to go through Texas before it can claim it. But applying Tarrant’s understanding of silence regarding state borders to this section would imply that Arkansas could enter into Texas without having to wait for the water that will inevitably reach it. This counterintuitive outcome would thwart the self-evident purposes of the Compact. Further, other provisions of the Compact share this structure of allocating a proportion of water that will flow from an upstream State to a downstream one. 9 Accepting Tarrant’s reading would upset the balance struck by all these sections.
At the very least, the problems that arise from Tarrant’s proposed reading suggest that §5.05(b)(1)’s silence is ambiguous regarding cross-border rights under the Compact. We therefore turn to other interpretive tools to shed light on the intent of the Compact’s drafters. See Oklahoma v. New Mexico, 501 U. S. 221 , n. 5 (1991). 10 Three things persuade us that cross-border rights were not granted by the Compact: the well-established principle that States do not easily cede their sovereign powers, including their control over waters within their own territories; the fact that other interstate water compacts have treated cross-border rights explicitly; and the parties’ course of dealing.1
The background notion that a State does not easily cede its sovereignty has informed our interpretation of interstate compacts. We have long understood that as sovereign entities in our federal system, the States possess an “absolute right to all their navigable waters and the soils under them for their own common use.” Martin v. Lessee of Waddell, 16 Pet. 367, 410 (1842). Drawing on this principle, we have held that ownership of submerged lands, and the accompanying power to control navigation, fishing, and other public uses of water, “is an essential attribute of sovereignty,” United States v. Alaska, 521 U. S. 1, 5 (1997) . Consequently, “ ‘[a] court deciding a question of title to [a] bed of navigable water [within a State’s boundaries] must . . . begin with a strong presumption’ against defeat of a State’s title.” Id., at 34 (quoting Montana v. United States, 450 U. S. 544, 552 (1981) ). See also Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159, 174 (2001) ; Utah Div. of State Lands v. United States, 482 U. S. 193, 195 (1987) .
Given these principles, when confronted with silence in compacts touching on the States’ authority to control their waters, we have concluded that “[i]f any inference at all is to be drawn from [such] silence on the subject of regulatory authority, we think it is that each State was left to regulate the activities of her own citizens.” Virginia v. Maryland, 540 U. S. 56, 67 (2003) . Cf. New Jersey v. New York, 523 U. S. 767 , n. 6 (1998) (“[T]he silence of the Compact was on the subject of settled law governing avulsion, which the parties’ silence showed no intent to modify”).
Tarrant asks us to infer from §5.05(b)(1)’s silence regarding state borders that the signatory States have dispensed with the core state prerogative to control water within their own boundaries. 11 But as the above demonstrates, States rarely relinquish their sovereign powers, so when they do we would expect a clear indication of such devolution, not inscrutable silence. We think that the better understanding of §5.05(b)(1)’s silence is that the parties drafted the Compact with this legal background in mind, and therefore did not intend to grant each other cross-border rights under the Compact.
In response, Tarrant contends that its interpretation would not intrude on any sovereign prerogative of Oklahoma because that State would retain its authority to regulate the water within its borders. Because anyone seeking water from Oklahoma would still have to apply to the OWRB, receive a permit, and abide by its conditions, Tarrant argues that Oklahoma’s sovereign authority remains untouched by its interpretation. But Tarrant cannot have it both ways. Adopting Tarrant’s reading would necessarily entail assuming that Oklahoma and three other States silently surrendered substantial control over the water within their borders when they agreed to the Compact. Given the background principles we have described above, we find this unlikely to have been the intent of the Compact’s signatories.2
Looking to the customary practices employed in other interstate compacts also helps us to ascertain the intent of the parties to this Compact. See Alabama v. North Carolina, 560 U. S. 330 ___, ___ (2010) (slip op., at 9); Oklahoma, 501 U. S., at 235, n. 5; Texas v. New Mexico, 462 U. S. 554, 565 (1983) . See also Restatement (Second) of Contracts §203(b) (explaining that “usage of trade” may be relevant in interpreting a contract). Many of these other compacts feature language that unambiguously permits signatory States to cross each other’s borders to fulfill obligations under the compacts. See, e.g., Amended Bear River Compact, Art. VIII(A), 94Stat. 12 (“[N]o State shall deny the right of another signatory State . . . to acquire rights to the use of water . . . in one State for use of water in another”). 12 The absence of comparable language in the Red River Compact counts heavily against Tarrant’s reading of it.
Tellingly, many of these compacts provide for the terms and mechanics of how such cross-border relationships will operate, including who can assert such cross-border rights, see, e.g., Kansas-Nebraska Big Blue River Compact, Art. VII(1), 86Stat. 198, who should bear the costs of any cross-border diversions, see, e.g., Belle Fourche River Compact, Art. VI, 58Stat. 96–97, and how such diversions should be administered, Arkansas River Basin Compact, Kansas-Oklahoma, Art. VII(A), 80Stat. 1411. See also Brief for Professors of Law and Political Science as Amici Curiae 11–14 (giving more examples).
Provisions like these are critical for managing the complexities that ensue from cross-border diversions. Consider the mechanics of a cross-border diversion or taking of water in this case. If Tarrant were correct, then applicants from Arkansas, Texas, and Louisiana could all apply to the OWRB for permits to take water from Oklahoma. The OWRB would then be obligated to determine the total amount of water in Oklahoma beyond the 25 percent cap created in §5.05(b)(1), given that the Compact would only obligate Oklahoma to deliver water beyond its quarter share. This alone would be a herculean task because the Compact does not require ongoing monitoring or accounting, see Compact §2.11, 1 App. 13, and not all of the water in subbasin 5 is located or originates in Oklahoma. Moreover, the OWRB would be tasked with determining the priority under the Compact of applicants from other States. This would almost certainly require the OWRB to not only determine whether Oklahoma had received more or less than its 25 percent allotment, but whether other States had as well. Put plainly, the end result would be a jurisdictional and administrative quagmire. The pro-visions in the other interstate water compacts resolve these complications. The absence of comparable provisions in the Red River Compact strongly suggests that cross-border rights were never intended to be part of the States’ agreement.
Tarrant counters that not all interstate compacts that permit cross-border diversions have explicit language to this effect. On this front, Tarrant manages to identify one interstate compact that it contends permits cross-border diversions without express language to that effect, the Upper Niobrara River Compact, Pub. L. 91–52, 83Stat. 86. Tarrant observes that this compact, which deals with a river mostly located in Nebraska with only a small portion in Wyoming, provides that “[t]here shall be no restrictions on the use of the surface waters of [the river] by Wyoming.” See Art. V(A)1, id., at 88. Tarrant suggests that this language, coupled with the fact that the bulk of the river is in Nebraska, implicitly indicates that the compact grants Wyoming a right to enter Nebraska and use the river’s water. First, we are not convinced that a single compact’s failure to reference state borders does much to detract from the overall custom in this area. See supra, at 16–18, and n. 12. Second, the Upper Niobrara River Compact is not a helpful counterexample for Tarrant. The general provision that Tarrant quotes is paired with a host of detailed conditions. See Arts. V(A)1(a)–(f), 83Stat. 88. Contrary to Tarrant’s position, then, assuming that the Upper Niobrara River compact does create any cross-border rights, it does so not through silence, but through the detailed scheme that would apply to any such contemplated diversions.
Tarrant also argues that §2.05(d) of the Red River Compact, which provides that “[e]ach Signatory State shall have the right to” “[u]se the bed and banks of the Red River and its tributaries to convey stored water, imported or exported water, and water apportioned according to this Compact,” 1 App. 11, in fact authorizes cross-border diversions. Because the present border between Texas and Oklahoma east of the Texas Panhandle is set by the vegetation line on the south bank of the River, Red River Boundary Compact, 114Stat. 919, Tarrant contends that §2.05(d) reflects an understanding on the part of the Compact’s drafters that state borders could be crossed. But the issue is not as simple as Tarrant makes it out to be. When the Compact was drafted, the Texas-Oklahoma border was fixed at the south bank of the River. See Texas v. Oklahoma, 457 U. S. 172 (1982) . If Texas was able to access water through the south bank of the River—an issue left unbriefed by the parties—the Compact’s framers may have believed that Texas could reach the River and take water from it without having to enter Oklahoman land, casting doubt on Tarrant’s theory. In any event, even if §2.05(d) is read to establish a cross-border right, it does so through express language setting forth the location and purposes under which such an incursion is permissible. This is different from the inference from silence that Tarrant asks us to draw in §5.05(b)(1).3
The parties’ conduct under the Compact also undermines Tarrant’s position. A “part[y’s] course of performance under the Compact is highly significant” evidence of its understanding of the compact’s terms. Alabama v. North Carolina, 560 U. S., at___ (slip op., at 14). Since the Compact was approved by Congress in 1980, no signatory State had pressed for a cross-border diversion under the Compact until Tarrant filed its suit in 2007. Brief for Respondents 26, 49–51. Indeed, Tarrant attempted to purchase water from Oklahoma over the course of 2000 until 2002, see supra, at 7, a strange offer if Tarrant believed it was entitled to demand such water without payment under the Compact.
In response, Tarrant maintains that there were “compelling business reasons” for it to purchase water. Reply Brief 17. We are unpersuaded. If Tarrant believed that it had a right to water located in Oklahoma, there would have been “compelling business reasons” to mention this right given that billions of dollars were at stake. See 2 App. 362–363 (summarizing Texas purchase proposal). Yet there is no indication that Tarrant or any other Texas agency or the State of Texas itself previously made any mention of cross-border rights within the Compact, and none of the other signatory States has ever made such a claim.4
The Compact creates no cross-border rights in Texas. Tarrant’s remaining arguments do not persuade us otherwise.
First, Tarrant argues that its interpretation of the Compact is necessary to realize the “structure and purpose of Reach II.” Brief for Petitioner 34–38. Tarrant contends that because the boundary of subbasin 5 is set by the location of the last existing, authorized, or proposed sites for a downstream dam before the Red River, see Compact §§5.01(a), 5.02(a), 5.03(b), 5.04(a), 1 App. 22–24, the Compact allows each of the States upstream from Louisiana to prevent water from flowing from its tributaries into subbasin 5. Tarrant reasons that each State will therefore hold whatever water it needs in its upstream basins. Given this, Tarrant maintains that any water that a State voluntarily allows to reach subbasin 5 must be surplus water that State did not intend to use, and if the upstream State has no need for that water, then there is no reason not to allow other States to access and use it, even across borders.
This argument is founded on a shaky premise: It assumes that flows from these dammed-up tributaries are the sole source of water in subbasin 5. But §5.05(b)(1) explains that “[s]ignatory States shall have equal rights to the use of runoff originating in subbasin 5,” as well as “water flowing into subbasin 5,” which would include flows from the main stem of the River itself. Id., at 25. Thus, there are waters that are specific to subbasin 5 separate from those originating in the tributaries covered by subbasins 1 through 4. Tarrant’s account of the purposes of subbasin 5 does not explain how these waters were to be allocated.
Tarrant’s second argument regarding the purposes of Reach II is that §5.05(b)(1)’s 25 percent cap on each State’s access to excess water in subbasin 5 should be read to imply that if a State cannot access sufficient water within its borders to meet its share under the cap, then it must be able to cross borders to reach that water. Were it otherwise, Tarrant explains, the 25 percent cap would have no purpose. To support this argument, Tarrant draws on a 1970 engineering report that it contends shows that only 16 percent of the freshwater flowing into subbasin 5 was located in Texas. Brief for Petitioner 9, n. 5. The OWRB challenges this percentage with its own calculations drawn from the report, and asserts that Texas had access to at least 29 percent of the excess water in subbasin 5 within its own borders. Brief for Respondents 26, 47–48, and n. 17.
Fortunately, we need not delve into calculations based on a decades-old engineering report to resolve this argument. As we have explained, supra, at 4–6, Texas does not have a minimum guarantee of 25 percent of the excess water in subbasin 5. If it believes that Oklahoma is using more than its 25 percent allotment and wishes to stop it from doing so, then it may call for an accounting under §2.11 of the Compact and, depending on the results of that accounting, insist that Oklahoma desist from taking more than its provided share. See Compact §2.11, and Comment on Art. II, 1 App. 13–16. This is the appropriate remedy provided under the Compact. But Texas has never done so and Tarrant offers no evidence that in the present day Texas cannot access its 25 percent share on its own land.C
Under the Compact’s terms, water located within Oklahoma’s portion of subbasin 5 of Reach II remains under Oklahoma’s control. Accordingly, Tarrant’s theory that Oklahoma’s water statutes are pre-empted because they prevent Texas from exercising its rights under the Compact must fail for the reason that the Compact does not create any cross-border rights in signatory States.III
Tarrant also challenges the constitutionality of the Oklahoma water statutes under a dormant Commerce Clause theory. Tarrant argues that the Oklahoma water statutes impermissibly “ ‘discriminat[e] against interstate commerce’ for the ‘forbidden purpose’ of favoring local interests” by erecting barriers to the distribution of water left unallocated under the Compact. Brief for Petitioner 47–48 (quoting Department of Revenue of Ky. v. Davis, 553 U. S. 328, 338 (2008) ). Tarrant’s argument is premised on the position that if we “adopt the Tenth Circuit’s or respondent’s interpretation [of the Compact], . . . a substantial amount of Reach II, Subbasin 5 water located in Oklahoma is not apportioned to any State and therefore is available to permit applicants like Tarrant.” Brief for Petitioner 47. So, Tarrant continues, because Oklahoma’s laws prevent this “unallocated water” from being distributed out of State, those laws violate the Commerce Clause.
Tarrant’s assumption that that the Compact leaves some water “unallocated” is incorrect. The interpretive comment for Article V of the Compact makes clear that when the River’s flow is above 3,000 CFS, “all states are free to use whatever amount of water they can put to beneficial use,” subject to the requirement that “[i]f the states have competing uses and the amount of water available in excess of 3000 CFS cannot satisfy all such uses, each state will honor the other’s right to 25% of the excess flow.” 1 App. 29–30. If more than 25 percent of subbasin 5’s water is located in Oklahoma, that water is not “unallocated”; rather, it is allocated to Oklahoma unless and until another State calls for an accounting and Oklahoma is asked to refrain from utilizing more than its entitled share. 13 The Oklahoma water statutes cannot discriminate against interstate commerce with re-spect to unallocated waters because the Compact leaves no waters unallocated. Tarrant’s Commerce Clause argument founders on this point.* * *
The Red River Compact does not pre-empt Oklahoma’s water statutes because the Compact creates no cross-border rights in its signatories for these statutes to infringe. Nor do Oklahoma’s laws run afoul of the Commerce Clause. We affirm the judgment of the Court of Appeals for the Tenth Circuit.
It is so ordered.
1 Interpretive comments were included in the Compact so that future readers “might be apprised of the intent of the Compact Negotiation Committee with regard to each Article of the Compact.” Compact, Comment on Preamble, 1 App. 9.
2 Within subbasins 1, 2, and 4, water was fully apportioned to a single State. See Compact §5.01(b), id., at 22–23 (apportioning water of subbasin 1 and its “unrestricted use” to Oklahoma); §5.02(b), id., at 23 (same for Texas with respect to subbasin 2); §5.04(b), id., at 24 (same for Texas with respect to subbasin 4). Only subbasin 3, which includes portions of Oklahoma and Arkansas, breaks from this pattern and was divided along the lines of a 60-to-40 split, with both States having “free and unrestricted use of the water of this subbasin within their respective states, subject, however, to the limitation that Oklahoma shall allow a quantity of water equal to the 40 percent of the total runoff originating below the following existing, authorized or proposed last major downstream damsites in Oklahoma to flow into Arkansas.” §5.03(b), id., at 23–24.
3 The Compact defines “undesignated water” as “all water released from storage other than ‘designated water.’ ” §3.01(l), id., at 17. “[D]esignated water” means “water released from storage, paid for by non-Federal interests, for delivery to a specific point of use or diversion.” §3.01(k), ibid.
4 In such circumstances, the two relevant paragraphs provide: “(2) Whenever the flow of the Red River at the Arkansas-Louisiana state boundary is less than 3,000 [CFS], but more than 1,000 [CFS],the States of Arkansas, Oklahoma, and Texas shall allow to flow into the Red River for delivery to the State of Louisiana a quantity of water equal to 40 percent of the total weekly runoff originating in subbasin5 and 40 percent of undesignated water flowing into subbasin 5; pro-vided, however, that this requirement shall not be interpreted to require any state to release stored water. “(3) Whenever the flow of the Red River at the Arkansas-Louisiana state boundary falls below 1,000 [CFS], the States of Arkansas, Oklahoma, and Texas shall allow a quantity of water equal to all the weekly runoff originating in subbasin 5 and all undesignated water flowing in subbasin 5 within their respective states to flow into the Red River as required to maintain a 1,000 [CFS] flow at the Arkansas-Louisiana state boundary.” §5.05(b), id., at 25.
5 Under §2.10 of the Compact each signatory State retains “the right or power . . . to regulate within its boundaries the appropriation, use, and control of water.” Id., at 12. Thus, the Compact does not expressly pre-empt any state laws that address the control of water. Oklahoma law, in turn, requires that any “state or federal governmental agency” that “intend[s] to acquire the right to the beneficial use of any water” in Oklahoma must apply to the OWRB for “a permit to appropriate” water before “commencing any construction” or “taking [any water] from any constructed works.” Okla. Stat., Tit. 82, §105.9 (West 2013).
6 An acre-foot is equivalent to the volume of one acre of surface area filled to a depth of one foot. Webster’s Third New International Dictionary 19 (1966).
7 The parties have stipulated that OWRB will not take action onTarrant’s application until this litigation has concluded. Brief for Peti-tioner 16.
8 The Compact Clause of the Constitution provides that “[n]o State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State.” Art. I, §10, cl. 3. Accordingly, before a compact between two States can be given effect it must be approved by Congress. See Virginia v. Maryland, 540 U. S. 56, 66 (2003) . Once a compact receives such approval, it is “transform[ed] . . . into a law of the United States.” Ibid. (internal quotation marks omitted). The Supremacy Clause, Art. VI, cl. 2, then ensures that a congressionally approved compact, as a federal law, pre-empts any state law that conflicts with the Compact. See Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U. S. 141 –153 (1982).
9 See Compact §4.01(b), 1 App. 18 (“The annual flow within this subbasin is hereby apportioned sixty (60) percent to Texas and forty (40) percent to Oklahoma”); §6.02(b), id., at 32 (“Arkansas is apportioned sixty (60) percent of the runoff of this subbasin and shall have unrestricted use thereof; Louisiana is entitled to forty (40) percent of the runoff of this subbasin”).
10 There is, however, one interpretive tool that is inapplicable here: the presumption against pre-emption. The Court of Appeals repeatedly referenced and relied upon the presumption in its opinion. See 656 F. 3d 1222, 1239, 1242, 1245–1246 (CA10 2011). Yet the presumption against pre-emption is rooted in “respect for the States as ‘independent sovereigns in our federal system’ ” and “assume[s] that ‘Congress does not cavalierly pre-empt’ ” state laws. Wyeth v. Levine, 555 U. S. 555 –566, n. 3 (2009). When the States themselves have drafted and agreed to the terms of a compact, and Congress’ role is limited to approving that compact, there is no reason to invoke the presumption.
11 Of course, the power of States to control water within their borders may be subject to limits in certain circumstances. For example, those imposed by the Commerce Clause. See Sporhase v. Nebraska ex rel. Douglas, 458 U. S. 941 –958 (1982). Here we deal only with whether the parties’ silence on state boundaries in the allocation of water under a compact suggests that borders are irrelevant for that allocation. As noted infra, at 23–24, Tarrant has not raised any Commerce Clause challenge to Oklahoma’s control of the water allocated to it by the Compact.
12 See also Amended Costilla Creek Compact, Art. III(2), 77Stat. 353 (“Each State grants for the benefit of the other . . . the rights . . . in one State for use in the other”); Klamath River Basin Compact, Art. V(A), 71Stat. 500 (“Each state hereby grants for the benefit of the other . . . the right . . . in one state for use in the other”); Snake River Compact, Art. VIII(A), 64Stat. 32 (“[N]either State shall deny the right of the other State to acquire rights to the use of water . . . in one State for use in the other”); South Platte River Compact, Art. VI(1), 44Stat. 198 (“Colorado consents that Nebraska and its citizens may . . . divert water from the South Platte River within Colorado for use in Nebraska”); Upper Colorado River Basin Compact, Art. IX(a), 63Stat. 37 (“[N]o State shall deny the right of another signatory State . . . to acquire rights to the use of water . . . in an upper signatory State for consumptive use in a lower signatory State”).
13 Moreover, even if Oklahoma utilized less than 25 percent of the excess subbasin 5 water within its territory and allowed the rest to flow down the River, that water would pass from Reach II into Reach V, see Compact §2.12, 1 App. 13, the waters of which are completely allocated to Louisiana, §8.01, id., at 38. Again, no water is left “unallocated.”
ORAL ARGUMENT OF CHARLES A. ROTHFELD ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We will hear argument next this morning in Case 11-889, Tarrant Regional Water District v. Herrmann.
Charles A. Rothfeld: Thank you, Mr. Chief Justice, and may it please the Court:
In the Red River Compact, Oklahoma agreed that Texas would be allowed to use a specified quantity of water that is located in Oklahoma.
Oklahoma is now trying to back out of that bargain.
What its argument to this Court in support of its position is essentially that the Court should disregard language that appears in the Red River Compact because that language is superfluous, that the Court should read into the Compact language that does not appear there, and that the Court should not give the text of the Compact what Oklahoma in its brief describes as talismanic significance.
Our very different view is that the plain text of the Compact must control.
Now, in the Red River Compact, Texas and Oklahoma, along with Louisiana and Arkansas, agreed to allocate among themselves the waters of the Red River Basin.
The Compact divides that basin into large areas called reaches and subdivides the reaches into subbasins.
As to some of those areas, the Compact expressly allocates entitlement to water by State line.
It says that the States may use the water within their boundaries exclusively.
But in the section of the Compact which is at issue here, Reach 2, Subbasin 5, the Compact uses a very different and unique language.
That section -- that subbasin includes the territory of three of the four compacting States.
The boundaries of that subbasin are drawn not by State lines, but by reference to the -- the last downside dam sites before tributaries to the Red River Basin -- Red River flow into the river itself.
Justice Ruth Bader Ginsburg: Mr. Rothfeld, we are told that in other compacts when they really mean to give one State the right to take another State's water, the provision in the compact is much clearer, much more definite.
This clause, the one that you rely on, is kind of sketchy, isn't it?
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 A. Rothfeld: Well, the provision that we are relying on, I would say is not 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.
That -- that is quite express as to what is required.
In -- it's difficult to read that language to mean anything other than that the States can take--
Justice Antonin Scalia: What is the exact language?
Do you want to read the exact language just to refresh our recollection?
Charles A. Rothfeld: --It appears -- it is reprinted on page 8 of the blue brief in the indented text, and it says,
"Within this -- within this subbasin, the signatory States have equal rights to the use of. "
and then it defines the water that they have the rights to the use of, “ at times of normal flow ” -- with the flow of the Red River at 3,000 cubic feet per second at the Arkansas/Louisiana border --
"provided that no State is entitled to more than 25 percent of the water in excess of this amount. "
So the -- the gist of the language is States have -- all -- all four signatory States have equal rights to the use of--
Justice Stephen G. Breyer: It doesn't say that.
"No State is entitled to more than 25 percent. "
It doesn't say -- I mean that language doesn't say what happens if in fact there's a State that because of cliffs or something can't get the 25 percent to which it is entitled.
It just doesn't say anything about it.
Charles A. Rothfeld: --Well, I have to disagree with that.
Justice Stephen G. Breyer: Where does it say something about it?
Charles A. Rothfeld: It says that -- the section is designed to allocate the water of the subbasin, and it says,
"Within the subbasin, States have equal rights to use of the runoff. "
That's the first part of it.
Justice Stephen G. Breyer: Yes.
Charles A. Rothfeld: The second part of it then says,
"provided that no State is entitled to more than 25 percent-- "
Justice Stephen G. Breyer: All right.
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?
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, and there is no such mechanism, rather if there is such a right, which it doesn't say anything about, it's left to the State courts in different States to try to do what is an extremely complex and controversial administrative job.
Charles A. Rothfeld: --A couple points to say about that.
First of all, it is not at all a complex job.
Justice Stephen G. Breyer: It's not at all complex when Oklahoma is going to say, Texas, go run the pipe to the south of the Red River, and Texas is going to say, I'm sorry, we can't get there, there's too much cactus.
And then they're going to say, don't you know that, in fact, when you put your pipeline into Oklahoma, you are going to be taking part of the 25 percent that belongs to us.
And Texas will say, no, we aren't.
And then we'll have to have a way of measuring how much goes into the river at different places and what are all these different pipelines are going to take out.
You understand what I'm saying.
Charles A. Rothfeld: Right.
Justice Stephen G. Breyer: I would have thought a mechanism would be set up to do that and there is none.
Charles A. Rothfeld: --Okay.
Again, several things about that.
First of all, in all these other compacts to which Justice Ginsburg alludes that are cited by our opponents, which expressly allow for cross-border -- virtually none of them provide any of the kinds of details that you are describing.
Justice Stephen G. Breyer: Fine.
But they do say expressly, and I don't know what the terrain is like in the other areas.
And here it does not say anything about it.
That's why I think we're here in the Court, because all it says is you can't take more than 25 percent.
It doesn't say what happens when Texas is unable to get its 25 percent from the south.
I'm now repeating myself, but you point to the language that says what I just say is not consistent with the language.
Charles A. Rothfeld: What I say -- I guess I will say two things about that.
One, I think what you just say is, in fact, with respect, is not consistent with the language.
I think that--
Justice Stephen G. Breyer: Which language is it not consistent with?
Charles A. Rothfeld: --Equal rights to use of specified water.
It -- the -- the subbasin is defined, again, not by State lines; it's defined by -- by downstream dam sites.
So it has created a pool of water in the -- in this subbasin, and it says that all four States have equal rights to use of this water, provided that none takes more than 25 percent.
It seems to me that on the face of it, that is saying State lines are not relevant and that what we are looking at is a pool of water the States can come and get it.
And it is particularly so--
Justice Sonia Sotomayor: Excuse me.
Charles A. Rothfeld: --If I may just -- I'm sorry.
Justice Sonia Sotomayor: No, no.
Charles A. Rothfeld: And I think to the extent that there could be any ambiguity in the -- in that language viewed in isolation, in the context of the rest of the Compact, there are places where the drafters of the Compact, in fact, did refer to State lines.
They said that States are entitled to use the water within their State values, the respective States may use the water within their boundaries.
They did not -- the framers did not use that language in this provision.
Justice Sonia Sotomayor: I think under your argument, and you can correct me if I'm wrong, that Louisiana could decide it doesn't want to wait for the flow of water to come to it, and it could just go right into Oklahoma, in which it shares no border, and I don't know how it's going to do that, and take its 25 percent.
Does that make sense in terms of the language?
Charles A. Rothfeld: Well, I will--
Justice Sonia Sotomayor: I mean, you're talking about Texas, but Texas shares a border and so it may be a little easier to cross the borderline.
But what's Louisiana going to do?
Charles A. Rothfeld: --Well, let me make two points about that.
First of all, I think that not only does it make sense in the language; it's compelled by the language, because the language says within this subbasin all four States have equal rights.
Separately, there is another separate reach.
Reach V of the Compact is Louisiana's, and so the water flows into Louisiana.
When the water gets to Louisiana, it's no longer within the subbasin, it's somewhere else.
So the plain language of the Compact compels the reading -- compels the -- the point that Louisiana could take its water from within the subbasin.
Now, could it do that?
The subbasin runs through to Arkansas to Louisiana, so it could go to Louisiana--
Justice Stephen G. Breyer: Go back to the first one, because what you have done is you've pushed me back to the equal rights.
And now if I am going to fight you on it, I have to say the equal rights to water means equal rights to water arising within its boundaries.
And all you have to say is equal rights to water arising anywhere in the subbasin.
And if I just heard that, then I might say okay, I think yours is a little better.
But -- but we have this enormous administrative mess that would seem to be created, and both those interpretations seem possible.
So let's go back to that and let me hear quite clearly, now that I've focused it: What's the answer?
Charles A. Rothfeld: --If I may just finish with Justice Sotomayor and I will turn to that?
I think the second answer to the question is, the States are going to take the water from the closest point where they can get it.
And so Louisiana is not going to go to Oklahoma.
If it's going to go into Subbasin 5, it's going to go to Arkansas directly across the State line.
Justice Ruth Bader Ginsburg: How -- how does it do it?
Does it have to apply to Texas?
Charles A. Rothfeld: It has to apply to whichever--
Justice Ruth Bader Ginsburg: To Oklahoma.
Charles A. Rothfeld: --If it's going to Oklahoma, and this is partially responsive to Justice Breyer, it would have to apply to the water authorities within Oklahoma.
So what is going on here, Tarrant, the Texas water district, is applying to the Oklahoma Water Resources Board.
It will seek a permit.
This will operate precisely in the same way as if an Oklahoma applicant is seeking a permit.
You will go to -- you will go and say, I want to take water out of this point.
The Water Resources Board will apply its ordinary standards to determine whether or not that can be granted.
Justice Ruth Bader Ginsburg: Who -- who erects the facilities to accomplish this diversion?
Charles A. Rothfeld: Tarrant presumably will do that.
If Tarrant needs to obtain rights of way, Oklahoma law provides for exercise of eminent domain, or Tarrant can simply purchase the property to do that.
Justice Anthony Kennedy: It's -- it's my understanding that there is a place where Texas can put a line into the river, and then a subset of that question is, the main stem of the river, through -- without going through Oklahoma property, other than perhaps just the bank itself.
Charles A. Rothfeld: That -- that I think is not correct as a factual matter.
The -- the Red River lies entirely within Oklahoma, and so Oklahoma, in order to get water out of the main stem, if -- if Texas were to do that, it would have to go into Oklahoma.
And -- and in fact, this is in response to -- in part to what--
Justice Anthony Kennedy: But you say entirely within Oklahoma, just because of ownership of the banks?
Charles A. Rothfeld: --Because--
Justice Anthony Kennedy: --or because of there's also some intervening property between Texas and the bank that Oklahoma owns?
Charles A. Rothfeld: --The -- the border between Oklahoma and Texas is the south vegetation line of the Red River, so therefore it is out of the river past the bank to the vegetation line.
So in order to get water out of the main stem, Oklahoma and -- Texas would have to go into Oklahoma.
Now, there is--
Justice Anthony Kennedy: Do -- do the current laws prohibit that--
Charles A. Rothfeld: --Oklahoma's current laws would, I would think, prevent--
Justice Anthony Kennedy: --At any point?
Charles A. Rothfeld: --At any point, because the laws that Tarrant is challenging here are laws that are discriminatory Oklahoma laws that prevent any use of water originating in Oklahoma outside.
Justice Samuel Alito: When you say Texas has the right to go into Oklahoma, just -- just think about that phrase.
That's -- that's very striking.
I mean, it sounds like they are going to send in the National Guard or the Texas Rangers.
Charles A. Rothfeld: Right.
And that -- if I may, Justice Alito, that is -- that's a very misleading way of looking at it.
And I think Oklahoma's brief suggests that the Texas Rangers are going to descend on Oklahoma and seize the water.
That is not what -- what is contemplated.
Justice Samuel Alito: But you were saying that Oklahoma -- that Texas has the right to force Oklahoma to take private property in Oklahoma by eminent domain if necessary.
Charles A. Rothfeld: No, I -- there is an -- there is an Oklahoma statute that says in order to -- someone who has a permit to obtain water can exercise eminent domain.
An Oklahoma person can do this.
A Texas person can do this.
Chief Justice John G. Roberts: How does -- how does Oklahoma apply its law in this situation?
I assume there is normal priorities and they will get applications from a lot of people.
But they have to -- what do they have to give Texas?
Up to 25 percent?
I mean, they can't just say -- deny it, because another Oklahoma user has priority, or all this.
How does that fit in with the existing administrative structure?
Charles A. Rothfeld: Well, Oklahoma cannot use more than 25 percent of the water within the subbasin.
I think that our friends concede that, because the language of the Compact says no State is entitled to more than 25 percent.
Within each State's 25 percent allocation, a resident water user of the State will apply to the Oklahoma -- if they are seeking to take their water from Oklahoma, it will apply to the Oklahoma Water Resources Board, which will assess that permit precisely as it assesses permits from Oklahoma residents.
Chief Justice John G. Roberts: But it's got to give Texas at least up to its 25 percent, right?
Charles A. Rothfeld: If -- if there is a request for that much water from a Texas user, and the Texas user has priority as a permit applicant against others who are seeking to take water from this particular--
Chief Justice John G. Roberts: I guess what I'm asking is, does the Compact give Texas special priority apart from what Oklahoma -- Oklahoma's priorities would be?
Charles A. Rothfeld: --No, it does not.
It's -- all -- all the Compact says is that Texas is entitled to take water from within the subbasin, its 25 percent.
Now when it applies in a particular place, as Tarrant has done here, it's going to apply -- be consistent with the Oklahoma Water Resources Board permit application policies, as it has done.
The resources board will assess that permit application just as it would assess an application from--
Justice Elena Kagan: And what does that mean exactly?
What would Oklahoma do to evaluate that application and to compare it to other applications from Oklahomans, and also maybe to compare it -- maybe there is more than one Texas application.
How does the Oklahoma board make those decisions?
Charles A. Rothfeld: --It -- a permit applicant submits an application, which has to demonstrate that it satisfies the standards for obtaining the water.
That will be assessed on its merits by the Water Resources Board.
If there are competing applications for the same water, then it's -- it's done in the terms of priority -- of--
Justice Elena Kagan: I'm really asking you to tell me what the Oklahoma board is going to do.
I mean, why doesn't the Oklahoma board just say, you know, sorry, we like Oklahomans?
Would that be all right?
Charles A. Rothfeld: --Well, that is their current policy.
That would not be all right.
Justice Elena Kagan: What -- what -- what different kind of priorities do they have to use, and why do they have to use them, as I think -- somewhere along the lines of what the Chief Justice was asking?
Charles A. Rothfeld: I suppose there -- there are two points there.
One is, if there is enough water to go around for everyone, as in fact there is, then they simply assess it in terms of priority in time.
Whoever makes the first application will get it.
However, Oklahoma can only get -- use 25 percent of the water.
And therefore, Texas has the right, so long as there is water available and Texas has not used its 25 percent of the subbasin water, Texas has the right to seek that anywhere it can get it in the subbasin.
If I may, Mr. Chief Justice.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF ANN O'CONNELL, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER
Ann O'connell: Mr. Chief Justice, and may it please the Court:
The court of appeals concluded that Oklahoma may categorically foreclose Texas water users from accessing Reach II Subbasin 5 water in Oklahoma, and the court reached that conclusion for reasons that in the view of the United States are wrong.
First, the court of appeals erred in applying a presumption against preemption to determine whether the challenged Oklahoma laws conflict with the Compact.
The rationale for that presumption where it has been applied is one of federalism, but the States themselves created the terms of the interstate Compact, and respect for the States as sovereigns in that context requires enforcement of the Compact according to its terms.
Second, the court of appeals relied on general Compact provisions to conclude that the Compact gives States unrestricted authority to regulate the water within their boundaries.
But the general provisions of the Compact make clear that a State's regulation of water has to be consistent with the allocations made under the Compact, and each State's obligations under the Compact.
Justice Anthony Kennedy: Well, I -- I am not quite sure I agree with your reading of the court of appeals' opinion.
It seems to me the court of appeals' opinion is consistent with the Respondents' argument that they looked at the terms of the Compact.
And it seems to me that you may be right that the Compact either says you get the water or you don't, and the dormant Commerce Clause is just irrelevant.
But I read the opinion of the court of appeals as being quite consistent with that proposition.
You win or you lose, up or down, under the Compact.
The dormant Commerce Clause doesn't -- just doesn't have much to do with it.
Ann O'connell: Well, we agree with that.
We don't think that the dormant Commerce Clause comes into play here.
We think that whether Texas can access the water in Oklahoma through the Oklahoma permitting process depends entirely on whether the Compact gives them that right or not.
Justice Anthony Kennedy: But that's the way I read the analytic approach of the court of appeals at 39A, when it starts talking about the point of -- Section 5.05.
Ann O'connell: Right.
And we don't disagree with that, that the -- that the commerce clause shouldn't come into play here.
Where we disagree with the Court of Appeals is with the Court of Appeals' conclusion that, regardless of whether a State law would frustrate the purpose or pose an obstacle to a State obtaining its share of water under the Compact, that that State law should prevail under the Compact.
So the Compact makes clear that those general provisions preserving State water law need to be consistent with each State's obligations under the Compact.
And if I could--
Chief Justice John G. Roberts: Well, where, if you're relying on the Compact and its language, where do you come up with this idea that States first have to try to get their 25 percent from water within their borders?
I don't see that anywhere.
Ann O'connell: --Well, first of all, we think that that's an issue that, if the Court decided that -- that there are errors in the court of appeals opinion that should be corrected, we think that's something the court of -- that the lower courts could consider on remand.
But I'll tell you where it comes from, which is Sections 2.01 and 2.10(a) of the Compact, which preserve the application of State water law.
Section 2.01 says that,
"Each State may freely administer water rights and uses in accordance with the laws of that State, but that such -- such uses shall be subject to the availability of water in accordance with the Compact. "
Chief Justice John G. Roberts: Well, it seems to me that you like some provisions of State law, but not others.
Ann O'connell: No.
What we're saying is that if there's a State law that conflicts with the allocation or poses an obstacle to the allocation of water under the Compact, then it's preempted.
But, for example, if Texas could access 25 percent of the water from within its State, then the -- the application of a State law that would bar Texas water users from obtaining a portion of its water in Oklahoma wouldn't necessarily be preempted, because it wouldn't pose an obstacle to the allocation.
Chief Justice John G. Roberts: What do you do -- what do you do with a situation -- let's say there's Oklahoma water available to Tarrant that is closer than the water they would get from somewhere else in Texas.
Do they have to incur the additional expense to get Texas water, or can they take the cheaper route and get Oklahoma water?
Ann O'connell: Well, we think -- again, we think this is a -- an issue for the court of -- for the lower courts to look at on remand, but we think there's a -- there's a good argument to be made that, so long as Texas could access 25 percent of the water within its boundaries, then application of an Oklahoma law that would prohibit Texas from going through the Oklahoma permitting process wouldn't necessarily be preempted.
And again, we -- these -- these -- there are lots of issues, as we point out in our brief and we did at the invitation stage, that would need to be addressed, perhaps, in further proceedings or perhaps before the--
Justice Elena Kagan: Ms. O'Connell, isn't that a reason why we shouldn't accept your basic view?
I mean, if -- if you think of all the issues that you laid out that are going to have to be decided and the difficulty of those issues -- I mean, you read this brief that you submitted, it gives you kind of a headache.
That -- that -- you know, and it -- it suggests how difficult the process is.
And then you look at this provision, and maybe this provision can be read as an entitlement, but it can just as easily, as -- as Justice Breyer suggested, be read as a cap, “ no more than 25 percent ”.
So as between those two possible readings, the complexity of your way of reading this, which would have -- why?
Ann O'connell: --Justice Kagan, I'd like to, if I could, go to the second point, which is on the -- the -- whether you read this as a 25 percent entitlement or a cap, and I would like to point the Court, not just to the language of the Compact, which we think weighs in favor of the idea that each right -- each State has an equal right and that the -- the equal right to use the water in the subbasin implies an equal right, not just an opportunity.
But the interpretive comments that follow Section 5.05(b) -- this is at page 30 of the is Joint Appendix -- refer to a “ right ”.
The first full paragraph there says, “ When the flows ” -- I'm sorry; it's the -- the second line.
"If the States have competing uses and the amount of water available in excess of 3,000 cubic feet per second cannot satisfy all such uses, each State will honor the other State's right to 25 percent of the excess flow. "
The Red River Compact Commission also approved rules and regulations, and those say -- they're on page, I think, 19 of the Joint Appendix.
I might have that page -- yeah, I have that page wrong.
But the -- the Red River Compact Commission's rules and regulations say that when the flow is above 12,000 cubic feet per second, so that Louisiana could get its 3,000 cubic feet per second,
"each of the signatory States shall be entitled to 25 percent of the total runoff in undesignated flow. "
So I think it -- it's pretty clear that based on the -- both the text of the Compact and the interpretive comments in the rules that the Red River Compact Commission came up with, that there is not just that you can take whatever is in your borders even if that doesn't amount to 25 percent, but -- but that each State is entitled to 25 percent of the water, and that if that involves going into another State within this geographic area that's not defined with respect to State boundaries, then that is permissible under the Compact.
And as the Petitioner pointed out, when the States wanted to impose a State boundary restriction in the Compact, they did so.
There are several subbasins that span more than one geographic -- or more than one State, and the Compact in those provisions says that you can take whatever you want within your boundaries.
And I also don't think that this is going to be particularly troublesome to administer.
I mean, there may need to be some further proceedings on that, but Oklahoma law provides the backdrop for what would happen when a Texas water user goes in to -- to ask for a permit to appropriate and divert water from within Oklahoma.
Justice Elena Kagan: And what does that mean?
What would Oklahoma do?
Ann O'connell: Well, the Oklahoma Water Resources Board would just apply its normal procedures and laws to determine whether this particular use of water could be put to beneficial use.
If -- they would just apply whatever laws they would apply to any applicant, regardless of whether they are from Texas or Oklahoma.
Justice Elena Kagan: Well, people keep on saying that, and I -- I guess I just still don't understand quite what it means.
Ann O'connell: Well--
Justice Elena Kagan: I mean, let's say Oklahoma, the board is sitting there and it gets lots of applications from Oklahoma users.
And let's say it also gets multiple applications from Texas users.
That it's not just one county, it's four counties.
What does Oklahoma do to -- to decide who gets the water?
Ann O'connell: --Well, I think just as -- as Petitioner's counsel pointed out, there's a -- a priority in water law, where whoever submits the application first would -- would get the water if it's available and they can put it to beneficial use.
And I -- and I -- the Court shouldn't be concerned.
I know all -- I know there are amicus briefs submitted by other Texas entities that would like to have water from this particular subbasin as well.
They're all part of the same Region C, and they -- I think they have some way to work it out.
It's not like they--
Justice Samuel Alito: Well, I don't understand your answer.
If -- if you're correct, wouldn't the Oklahoma board have to give priority to the Texas applicants in order to make sure that Texas got its share of the water?
It couldn't just treat -- it couldn't just be indifferent as to whether it was an Oklahoma or Texas applicant.
Ann O'connell: --That -- true, to the extent that Texas was not receiving its water.
I mean, under -- under our theory, which we think could be developed more in the lower courts, if Texas was already receiving 25 percent of the water, then Oklahoma would not have to give it any kind of special priority.
But if it -- if it was not, then the Oklahoma Water Resources Board would treat it just like an Oklahoma applicant.
Justice Samuel Alito: Is it correct that -- that there are reservoirs in Texas that flow into -- from which water is released into the Red River?
Ann O'connell: Yes.
Justice Samuel Alito: Okay.
Ann O'connell: And in Oklahoma as well.
Justice Samuel Alito: --And what if Texas didn't -- what if Texas could get -- could -- could release that water and increase the flow of the river, but it chose not to do so, so it could take other water out of the river?
Ann O'connell: This -- this is the last point made in the Respondent's brief--
Justice Samuel Alito: Yes.
Ann O'connell: --and -- and the response to that would just be that all of the States would have the opportunity to do that.
In fact, the whole subbasin is defined by the last major dam site on the tributaries that are running in.
So Oklahoma could do the same thing.
And also, when the reservoirs are full, they're full.
It's not like Texas could keep all of the water that's -- that's there from flowing into the bottom portion of that tributary.
Justice Stephen G. Breyer: Well, we're only considering the instance where there isn't enough water to meet the 25 percent in Texas.
And in that instance, I guess there are 50,000 places, not just in Oklahoma, but also in Arkansas, where they might get some.
And all my question, and I think that was being asked, is there anything else you want to say as to why that's an easy matter to decide?
Ann O'connell: Well, I -- it's -- we don't think it needs to be decided in this particular proceeding.
I think there are two errors that the court of appeals made in applying a presumption against preemption and in concluding that a Texas water user could never divert water from outside of its State.
Those could be developed -- those additional problems could be dealt with by the Oklahoma Water Resources Board or as you said, perhaps in the original action.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF LISA S. BLATT ON BEHALF OF THE RESPONDENTS
Lisa S. Blatt: Thank you, Mr. Chief Justice, and may it please the Court:
If I could just address two sort of factual questions.
Under the -- the actual Red River Boundary Compact, the lawyer for Tarrant was wrong.
There's actually a strip called Shawnee Creek, from the Denison Dam to the Shawnee Creek, that actually belongs to Texas.
So there's a piece of the Red River in this very subbasin that is -- it's in the express Boundary Compact.
Moreover, all of the Red River and Lake Texoma that is in Texas is part of the main stem, and that is not only in the land of Texas, Texas users draw water, quite a lot of water, from Lake Texoma.
So that's two places on the main stem.
Chief Justice John G. Roberts: Are they licensed?
Justice Sonia Sotomayor: So I'm sure -- you're -- you're saying that the State of Texas can take water directly from the main stem?
Lisa S. Blatt: It can and does.
Justice Sonia Sotomayor: That's my point, yes.
Chief Justice John G. Roberts: Anywhere close to of the 25 percent they claim entitlement to?
Lisa S. Blatt: Well, who knows?
Chief Justice John G. Roberts: I was hoping you did.
Lisa S. Blatt: Who knows?
Texas has more than a dozen fresh tributaries running from Subbasin 2 and Subbasin 4.
Chief Justice John G. Roberts: I'm talking about Subbasin 5.
Lisa S. Blatt: Subbasin 5, these are all -- excuse me -- these are tributaries that run into Subbasin 5.
There is more than a dozen tributaries in Subbasin 5.
For 30 years no one has ever kept track of any kind of accounting whatsoever, so when we say “ who knows ”?
that is the way the drafters -- it's not only the way the drafters intended, but that has been the state of play for 30 years.
So nobody -- and in the laws of Louisiana and Arkansas don't even track diversions.
Justice Anthony Kennedy: Just to be clear, in your view, Texas can, without going on Oklahoma property, take water from the main stem in Basin 5?
Lisa S. Blatt: --In Subbasin 5, there is only up from Denison Dam east to Shawnee Creek.
So that's just anywhere from a half a mile to three-quarters.
It runs from the -- from the middle of the channel.
East -- excuse me, west is Lake Texoma, and if you want to look at the map, it's a big old lake.
That is a lot of water.
And they definitely do take -- and that's in the brief -- they take lots of water from that lake from the Texas side.
Justice Anthony Kennedy: But my question was, can they take it from the main stem--
Lisa S. Blatt: Only in that -- that little slip of land to Shawnee Creek.
It's -- it's a part of Texas--
Justice Anthony Kennedy: --Is that the part that, under their allegation at least, is saline?
Lisa S. Blatt: --Well, again, they drink the water in Subbasin 5.
Justice Anthony Kennedy: All right.
Is that the part that--
Lisa S. Blatt: Yes.
Justice Anthony Kennedy: --they are referring to--
Lisa S. Blatt: --Yes.
Justice Anthony Kennedy: --when they say it's too saline?
Lisa S. Blatt: Yes.
They think all the water that their residents drink is salty, but they still are drinking it.
Chief Justice John G. Roberts: Texans.
Lisa S. Blatt: They're drinking it.
In fact, they're -- footnote 3 and footnote 4, their water planning documents, say this is a -- quite a -- a drinkable source of water.
Justice Antonin Scalia: When they--
Lisa S. Blatt: I understand they think it's salty, but they drink it.
Justice Antonin Scalia: --When they take water from the main stream of the Red River, how do they know how much of that water is from Reach V?
Lisa S. Blatt: Well, the--
Justice Antonin Scalia: They are -- they are entitled to -- to no more than 25 percent from Reach V.
Is everything that -- that comes into Texas in the main channel of the Red River water from Reach V?
Lisa S. Blatt: --So if you look at the -- if you look at the map in the red brief that's got all the -- the colors, and the pink is Subbasin 5.
So where they divert water from is all up and down those blue tributaries that are in pink south of the Red River.
Justice Antonin Scalia: Now what page are you looking at?
Lisa S. Blatt: This is 33A--
Justice Antonin Scalia: Yeah, okay.
Lisa S. Blatt: --this map.
Justice Antonin Scalia: Yeah, yeah, yeah.
I didn't know--
Lisa S. Blatt: So they -- and then if you look at that -- that blue lake that looks like a dragon, that is also where they are -- they are taking water.
Justice Antonin Scalia: --What--
Lisa S. Blatt: That just happens to be in Reach I.
Justice Antonin Scalia: --Reach I.
Lisa S. Blatt: But their water planning documents show that all the water in the pink on the Texas side is a very valuable source of drinking water.
And if you see, all the way down to Lake Texarkana, they can -- they are taking that water, too.
And when we say about what we know, no one has ever done any accounting because the Equal Rights Clause has always been read as equal rights to the use of the water without prejudice to or from each other's State, and, in that sense, it means that if one State took an earlier use of the water, it wouldn't gain a priority indefinitely over the other States.
Chief Justice John G. Roberts: Well, it never -- it never says that.
I mean, that's why we have a case.
It never says it has to be from your State.
And I appreciate your -- the focus in your argument on State sovereignty, but this is an interstate Compact.
And the whole point of interstate compacts is that we have to -- each State has to give up a little here or a little there to solve a problem.
So I -- I guess it's -- I don't know why these basic principles of State sovereignty apply in the context of an interstate compact.
Lisa S. Blatt: Right.
I mean, it is our position that the States would have never agreed to this extraordinary right without an -- an unequivocal explicit statement.
But I do think it is absolutely critical to understand that what they are asking for is unprecedented, Mr. Chief Justice.
There has never been a cross-border diversion -- ever -- under any State water compact.
And the two examples they cite in their reply brief are inexplicable -- absolutely inexplicable.
They cite the Niobrara Compact with no cite.
They -- they cite the Compact, but they never say there has been a cross-border diversion.
And if you look on the map--
Justice Ruth Bader Ginsburg: Say that again, because we have a green brief that gives us samples of provisions for cross border.
Lisa S. Blatt: --Yeah, under explicit right.
There has never been a cross-border diversion without an explicit statement.
Justice Ruth Bader Ginsburg: Because there have been many, many--
Lisa S. Blatt: --Many with explicit statements and then the essential bells and whistles as to eminent domain, points of diversion, and which choice of law.
And what they tried to say, because we have been saying all along how unprecedented this would be to sort of read in silence on borders, they tried to come up with two examples in their reply brief.
And that's what I'm talking about.
The reply brief is not only -- is devoid of a citation, but Nebraska and Wyoming told both us, and Wyoming told Tarrant's counsel, that there have never been diversions.
And Nebraska was quite -- like,
"Wow, we hadn't known that. "
And it shows the danger of their position.
They think if it's silent as to borders, the State of Wyoming can go hundreds of miles into Nebraska and take the water across the border.
The other example they cite is fascinating because it's a lawsuit before you.
They cite the Rio Grande Compact as a basis of saying El Paso can walk into New Mexico, but their lawsuit to you is based on the notion that Texas can't go into New Mexico.
It's New Mexico has a downstream delivery.
Justice Stephen G. Breyer: But there was a point, it seems to me, to favor them, which is go back to 1970 -- the '70s, when they drafted this.
Lisa S. Blatt: --I'm there.
Justice Stephen G. Breyer: So they are in the room, and there are representatives of all four States, and as they argue, there is going to be more than 3,000 feet, what happens?
And Louisiana would say, we want at least 25 percent; done.
Arkansas, 25 percent; done.
Oklahoma, same; done.
Texas, same; done.
But everybody in the room knows that Texas could never get more than 12 percent within its borders.
And since it could never get 12 -- more than 12 percent, Louisiana would be sitting there with not really 25 percent but with 38.
And so -- so--
Lisa S. Blatt: But with all due -- sorry.
Justice Stephen G. Breyer: --that would suggest that, hey, no, they all knew this and so they meant there must be some way for Texas to get the extra; otherwise, why were they saying 25 percent for Texas?
Lisa S. Blatt: Justice Breyer.
It's just not true.
What they cite to is a 1970 engineering report--
Justice Stephen G. Breyer: --You know, this is an example I made up, because I think--
Lisa S. Blatt: --Oh.
Justice Stephen G. Breyer: --an imaginary conversation.
Lisa S. Blatt: --Oh.
Justice Stephen G. Breyer: But if in an imaginary conversation--
Lisa S. Blatt: Well, okay.
34 percent of the watershed is in Texas, so there is no reason to think anyone thought Texas couldn't get its share.
Justice Stephen G. Breyer: --Why?
Lisa S. Blatt: There's no -- because there's no evidence there was any discussion about any State and whether -- Texas never complained.
No one ever said Texas couldn't get its water.
Justice Stephen G. Breyer: Wouldn't that be a fairly easy thing to check going back to 1970--
Lisa S. Blatt: If you--
Justice Stephen G. Breyer: --to found out whether, you know, Texas was just on some little salt flat--
Lisa S. Blatt: --Sure.
Justice Stephen G. Breyer: --near the river and--
Lisa S. Blatt: We did.
They did in their brief, and they came up with an 11 to 16 percent.
Our engineers ran the numbers after correcting their three-series method -- methodological errors, and we came up with 29 percent.
They -- they double-counted streams.
They forgot that Subbasin 5 is not only runoff but also rain.
And then -- this one's humorous -- they didn't count the excess.
So all the -- all the math that they did favored Texas, so the math didn't come out that way.
But what's interesting about the Tarrant's view in juxtaposing with the United States' view, Tarrant's view is it could have all the water, but they could get all of it still from Oklahoma.
So Louisiana, Arkansas, and -- and Texas could come take all their share from Oklahoma, forcing Oklahoma to have to go south.
Now the United States' view, and this is I -- they read a border limitation in there.
"Look, borders are here, but if Texas really needs it, you got to let them come in. "
That -- that's the United States.
They definitely -- which I don't understand their reliance on the Russello principle, because they read borders into this.
Texas has actually disavowed this view.
Tarrant's disavowed it.
They disavowed it to the Tenth Circuit when the Tenth Circuit asked for what their standing would to be to press it.
They said, “ We've never claimed this ”.
Justice Sonia Sotomayor: So what do you think is the remedy?
Lisa S. Blatt: The remedy?
Justice Sonia Sotomayor: --I -- let me just posit the point; okay?
I understand your point to the Chief that there's been no proof that Texas doesn't get its 25 percent or that it couldn't get it from the main stem or somewhere.
I accept that.
But let's, for the hypothetical, say that there's a major drought and Texas can't get it from its portion.
What's its remedy?
Lisa S. Blatt: Okay.
Justice Sonia Sotomayor: So that -- that it's not getting--
Lisa S. Blatt: Okay.
Justice Sonia Sotomayor: --25 percent--
Lisa S. Blatt: Yeah.
Justice Sonia Sotomayor: --as the Compact entitles it to.
Lisa S. Blatt: --Okay.
It's the last statement.
The Compact no way, no how entitles the parties to equal 25 percent.
It just doesn't say equal rights to a numerical share.
It doesn't say equal rights to a numerical quantity.
Justice Sonia Sotomayor: It says
"shall have equal rights to the use of runoff originating in Subbasin 5. "
Lisa S. Blatt: Right.
And you and I could have equal rights to the use of the family car or equal rights to the use of the highway.
That doesn't tell me anything about how many hours I can spend on the highway.
But here's the problem.
The real problem is with the cap.
Their view is that the first clause gives you an absolute equal right to a fixed 25 percent; no exceptions.
But then you have this provided clause which does no work for them.
The provided clause, which says you don't get any more than 25 percent, they are saying,
"Well, by definition, if you get exactly 25 percent, the State can take no more than 25 percent. "
So they actually just sort of combine the two.
The other -- I hate to point this out, because I -- I feel a lot of affinity for the United States, but their proof--
Chief Justice John G. Roberts: You feel a lot of what?
Lisa S. Blatt: --Affinity for them.
Chief Justice John G. Roberts: Oh.
Lisa S. Blatt: But listen to their proof for why there's an equal 25 percent.
Chief Justice John G. Roberts: You are representing Oklahoma.
Lisa S. Blatt: I am, but I used to work for them.
They say well, we're guaranteed an equal 25 percent share, and they cite the compliance rules on page 19.
And entertainingly so, the rules that they cite just disprove what they said.
The first rule they cite only gave 3 States.
They divided it by 3 instead of 4.
Their view, the United States' view, is there's a guarantee of 25 percent of any amount that's in excess of 3,000.
Justice Anthony Kennedy: Well, this is a -- a perfectly legitimate argument for you to make, but I want to go back to Justice Sotomayor's question.
At least as I understood it, it's this: I want you to assume -- I know you don't agree with that -- I want you to assume that the Compact gives Texas a right to 25 percent of the -- of the excess -- of the water above the cubic foot.
Lisa S. Blatt: The excess, yeah.
Justice Anthony Kennedy: I want you to assume that.
Now, wouldn't the Compact be meaningless if Texas couldn't actually reach that water?
Lisa S. Blatt: That is -- that is the United States' view, and they'd have to go above it.
What they would have to do, which no one else -- no one has done -- and I think the drafters thought it was ultimately impossible because of Arkansas and Louisiana, is call for an accounting and actually figure out what the total was, figure out what the excess was, divvy up the 4 shares, do exactly what Tarrant wants I guess to happen, which has never happened, and it's not clear to the drafters of the compliance rules that it could in fact ever happen because of the riparian laws of Arkansas and Louisiana.
But -- so in other words, if we lost this case, which is probably why Tarrant is disavowing the United States' view, is Texas would be in quite of a pickle trying to prove they couldn't get their 25 percent.
And so I read Tarrant as saying, don't you dare send us back to try to prove that.
We want to be able to go whole hog into Oklahoma.
And if I could get to the point that Justice Kagan was talking about, what's on the ground happening, and why Oklahoma would have never agreed to this type of cross-border right, because what Tarrant is doing is exploiting Oklahoma's law, which proceeds on the assumption that water in Oklahoma is a public trust that's held for the exclusive benefits of Oklahoma.
And there are three ways where Oklahoma would not have agreed to this, and it would have been carefully articulated in a Compact.
The first is prior appropriation.
There are 4 Texas entities that have signed up for permits: The Upper Trinity, the North Texas Municipal Water District, Irving and Tarrant.
And poor Oklahoma City got sandwiched in the middle.
It beat -- it beat Trinity to the permit office by 24 hours.
And so, not surprisingly, it's open season for Oklahoma water, all of north Texas has come in and sought a permit and there's priority.
Chief Justice John G. Roberts: But that's the same problem.
Even if you take within State, all of these people, if they were applying for water in Texas as well, there'd be the same issue there.
One of them would beat the other one.
It's a question of priority.
You're just claiming that everybody from Oklahoma should have -- well, not absolute priority, but--
Lisa S. Blatt: Well, I have two points.
First, had -- had Oklahoma seen this coming, since they hadn't heard about this until Tarrant filed its application, Oklahoma City certainly would have gotten in line faster.
And second of all, the whole point of this Compact -- and if you think about your equitable apportionment doctrines, which whoever gets to the water first gets a prior -- gets a priority permanently -- this was the point of the Compact.
Louisiana and Arkansas wouldn't have to develop their water, Texas and Oklahoma were much more economically developed States, and the equal rights prevented a race to the permit office.
Let me get to the second aspect what's a problem, and that is, compacts usually spell out the points of diversion.
The last place Oklahoma would have picked as the point of diversion is the Kiamichi River, and Tarrant is saying, not surprisingly, it's the most desirable.
And the third is the eminent domain.
Eminent domain law in Oklahoma proceeds on the assumption that those are Oklahomans who got the permit, and thus can exercise a core sovereign power, and Tarrant, not surprisingly, would like to come in and do that.
And none of this is happening with the normal political checks in Oklahoma.
Oklahoma can't vote out of office the Tarrant officials.
It cannot vote out of office the Upper Trinity or the North Texas Municipal Water District.
Justice Ruth Bader Ginsburg: --Ms. Blatt, does Oklahoma law in any circumstance permit an appropriation of water -- water in Oklahoma for out-of-State use?
Lisa S. Blatt: Well, it's -- if it's compacted water, you have to get legislative approval and--
Justice Ruth Bader Ginsburg: Just here and now, does Oklahoma ever--
Lisa S. Blatt: --Yes, it can.
Justice Ruth Bader Ginsburg: --permit out-of-State use of its water?
Lisa S. Blatt: It has not.
It could, but the -- but Tarrant is correct that there are facial differences with respect to out-of-State.
So out-of-State users would have to get the water going faster, it's subject to a review.
And there's a statement in there that you need to look and see if there's a better use for Oklahoma.
Now, I hope you ask them this, because I gather their view is under the dormant Commerce Clause is all of those laws are constitutional with respect to 99 percent of the Compact, which is it's allocated to -- to Oklahoma for its free and unrestricted use.
So they're basically saying there's 1 percent of this Compact that's unconstitutional.
And not only is it 1 percent, the minute it drops below 3,000, all of a sudden, it became.
And on this, we'd like to talk to the Russello principle.
I also hope you ask them, this is on page 15A of -- 14A of the 15A brief.
There are border references arbitrarily and they're missing, they're there.
It's completely inconsistent.
And this -- their view would make complete mincemeat out of 4 other provisions of the Compact.
And ironically, it would march a lot of States into Texas.
But back to (b) -- (b)(2) and 5.05(c) operate identical in that they're basically downstream delivery, where all States have to release 40 percent of the water downstream.
So they -- they're the same.
They're absolutely identical.
You hold on to 60, you let 40 percent go.
But only (c) contains that border reference.
Only (c) says “ within their respective States ”.
And yet even in (c), it's completely redundant and unnecessary, because you can't release water from without your State.
Justice Antonin Scalia: Where is this?
Where is this?
Where is this?
Lisa S. Blatt: This is on page 14A and 15A -- sorry -- of the red brief.
So only (c) says within their respective States, but (b)(2) is the exact same functioning provision, and it's missing the border reference.
And I -- you don't have time now to ask the United States' view, but I think the United States would agree with us that if you give this border thing kind of the magical meaning, borders kind of appear and disappear with the water flow, which is very strange.
Tarrant thinks that there's some heretofore unheard of crediting system, but they don't have an explanation on how (b)(2) and (c) -- but more importantly, if you could just turn to 9A for just a minute, which is 402, I want to walk you through this -- I'm sorry, 401(b).
This is a provision that -- this is water wholly within Texas.
And you don't have to understand much to know that Texas keeps 60, Oklahoma gets 40.
So you have a big chunk of Texas, and Texas is allocated 60 and Oklahoma is allocated 40.
Now, under Tarrant's view, because this is silent as to borders and because Oklahoma is not in this reach, it's not actually located within the subbasin, Oklahoma either is entitled to or has to go get all of its water from Texas.
And this pattern repeats itself -- this is on page 41 of our brief -- throughout the Compact, where the Compact is silent as to borders, and under their view -- and their Louisiana view is somewhat entertaining.
I can't tell if they think Louisiana can go into Oklahoma or has to move one inch up to the border to take it out as opposed to just waiting, but under this view -- and again, it repeats itself throughout the contract -- the State that's not in the basin, because there are no borders and because, I guess under their view, the only way that Oklahoma to get its water would be to go into Texas, and that's why they're sort of taking this bit about, oh, this Russello principle, if it's here, it must mean -- it must have had significance, would make a complete mess of the Compact.
If I could also just turn to the remand of the United States.
I just wanted to make -- to make three points.
And that is, I do think it is significant that it's pointed -- it is addressed to a problem that Texas itself has never asserted.
They're saying well, poor Texas can't get its water.
And remember, Texas is upstream, so this sort of poor Texas is only to Texas.
No other State is going to have this problem because the rest are downstream.
So this you have to be able to get to your 25 percent is a uniquely pro-Texas provision that apparently at the same time for 20 years of drafting history when Texas was trying to buy this water, and the three States were saying “ no way, no how ”, they either subconsciously or unconsciously or unintentionally enacted this provision for Texas's benefit.
Justice Stephen G. Breyer: --In Subbasin 1, that's mostly in Oklahoma, but Texas gets a lot of the water or the other way around?
It looked to me like Subbasin 1's in Oklahoma.
Lisa S. Blatt: Which reach?
Justice Stephen G. Breyer: Subbasin 1.
It says Subbasin 1.
Lisa S. Blatt: Are you talking about 401?
Justice Stephen G. Breyer: Yes, 401.
Lisa S. Blatt: Okay.
So that's in Reach 1.
So that's on this map -- the next map.
So none of it -- it's all within the green, the same with the panhandle of Texas.
Justice Stephen G. Breyer: Okay.
I get it.
I get it.
Lisa S. Blatt: Yes.
Justice Stephen G. Breyer: --because of that and because during the time when, let's say, there's 5,000 feet of the -- of the 2,000 extra, you know, Louisiana has to get 500.
How do they know whether they're getting it?
I mean, how -- there must be some system of measurement going on or how does this all work?
Lisa S. Blatt: Justice Breyer, you have to trust me.
There has never been an accounting ever, ever, ever, ever under this Compact.
Justice Stephen G. Breyer: So, so -- in other words--
Lisa S. Blatt: No measurements have ever been taken with respect to this.
Justice Stephen G. Breyer: --Fine.
So that -- I don't know how that cuts, because certainly the people who drew this must have thought at least in those other provisions they are going to develop a measurement system in case of controversy.
Lisa S. Blatt: Well, there are gauges.
So they -- I mean, it would not be impossible, although very expensive.
And just so you know, Section 211, and in the interpretive comments of 211, the State said the last thing we want is this accounting because it's expensive and burdensome.
And Louisiana and Arkansas, if you look at the minutes, they are complaining because their laws are not set up for accounting.
They are riparian States, so they don't track diversions.
They just -- they don't do it.
So this was -- this is -- when you talk about how this cuts, you have 20 years of silence--
Justice Antonin Scalia: I -- I don't understand what you just said: They're riparian States, so they don't track diversions.
Lisa S. Blatt: --Okay.
So when you comment--
Justice Antonin Scalia: Why does that follow?
Lisa S. Blatt: --Right.
So in the -- the Oklahoma and Texas, in their permitting system, what they permit, they track how much you take under the permit.
Justice Antonin Scalia: Okay.
Lisa S. Blatt: Louisiana, if you are a landowner, you just draw from the water and it's a -- it's a voluntary reporting system, so you don't necessarily have to tell the State how much you took out.
Justice Antonin Scalia: Okay.
Lisa S. Blatt: So one is a permitting system, and in Louisiana and Arkansas -- and, I think, again, the minutes just talk about we hope Louisiana and Arkansas will develop their laws to do better tracking of diversions.
But again, this would be the problem of an accounting.
But I -- so in terms of the 20 years of history, you have complete silence on this, even though, under our view, it always--
Justice Stephen G. Breyer: The relevant legal argument, I think, is look at what you just cited to us about this reach in the subbasin.
60 percent goes to Texas, 40 percent to Oklahoma.
Lisa S. Blatt: --Right.
Justice Stephen G. Breyer: Okay.
Now, they've never measured it.
That's because they never fought about it, I guess.
And now we have a fight.
So why is it any easier to develop the necessary measuring system there--
Lisa S. Blatt: Well--
Justice Stephen G. Breyer: --than it would be here?
Lisa S. Blatt: --the--
Justice Stephen G. Breyer: And that argues against you because your main point, really, is that this is all too complicated.
Lisa S. Blatt: --Justice Breyer, the disaster would be and the affront to sovereignty is throughout the Compact, not so much the measuring that's a problem: Oklahoma would be able to insist on crossing Texas's borders to draw that 40 percent.
And no one has ever, ever envisioned any of the Compact as not applying borders.
It's not so much the measurement.
Chief Justice John G. Roberts: --Well, I thought that was what your -- the other side does envision, that it doesn't -- it's not bound by the borders but it's bound by the agreement, the Compact.
Compacts compromise the individual State sovereignty.
That's the whole point of them.
Lisa S. Blatt: Okay.
But their view -- I mean, it is that they have to -- again, our view is that if they had wanted, like all the other cross-border rights, to allow for an extraordinary right, they would have made an explicit statement and then spelled out exactly what that meant, most importantly the point of diversion.
Here, at most you have silence on the issue.
Now, the Government reads into borders sometimes, because they say you do have borders unless there is a need.
Under Tarrant's view, which I think is the most jarring and remarkable view, this is all a borderless common, and every State could have criss-crossing pipelines into every State, because you don't have an exhaustion requirement.
So Texas, even though it's got plenty of water in its fresh water streams and currently uses them, could take their whole 25 percent from Oklahoma; Oklahoma could take its whole 25 percent from Texas; Arkansas could come into Oklahoma -- and that's their view of the world.
And I think the United States thought, no, that doesn't make too much sense.
Let's at least make Texas exhaust.
But the provision -- the Compact doesn't say this.
Again, the United States and Tarrant proceed on the assumption that there is a numerical share, that it's equal rights to an exact 25 percent, exact 25 percent.
Well, that's not what it says.
It just says equal rights to the use subject to a cap, and we think a cap by limiting the use is not a guarantee that you can reach the cap, much less that you can cross borders to reach the cap.
And if I could just make one more sense--
Justice Elena Kagan: Ms. Blatt, the solicitor general here today spoke of lots of different examples where the language of entitlement and rights was used.
Do you have a view as -- as to that?
Lisa S. Blatt: --So they -- you mean the two compliance rules they cited?
They cited -- so they say -- that's what I was saying that was sort of sad is because what they cited disproved what they were trying to assert it for.
So if you -- you don't even have to read the -- you don't even have to read the compliance rules.
Just read page 19 of their brief.
They say in the same sentence that we have an equal -- there's an equal right to one-fourth of an excess above 3,000.
So that means you take whatever is above 3,000 and divide by four equally.
And then they cite a provision that only divides by 3.
And then the next provision they cite didn't divide the excess, it divided the total water.
I don't know why they -- it's inexplicable.
I can't tell you why they did that.
And the only other thing I want to say on the extrinsic evidence, and I do think -- if you think there's any ambiguity in here, which I think there clearly is, you have 30 years of post ratification, which the States immediately did long-term water planning without so mentioning of this right.
And Tarrant actually offered to buy the same water for $1.7 billion in 2002, which is a little bit inconsistent with the notion that they had this right all along.
They just, in 18 months of negotiating history, never mentioned that they thought they owned the water, they were actually offering to pay 1.7 million.
And the amicus brief filed by the Tribes, on page 4, says we were at the negotiating table and we never heard Tarrant mention this right.
And the other thing, I do think the water planning documents are highly significant because not so much Louisiana and Arkansas, but Oklahoma and Texas take water planning very seriously because of their prior appropriation systems.
There are hundreds of thousands of pages on the Internet and none of them mention this right.
Again, they cited something in their reply brief, but if you go look at it, it doesn't come close to mentioning a right of Subbasin 5.
Again, ironically it mentioned a portion of Oklahoma where Texas would have to actually buy the water.
We'd ask you to affirm.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Rothfeld, you have four minutes remaining.
REBUTTAL ARGUMENT OF CHARLES A. ROTHFELD ON BEHALF OF THE PETITIONER
Charles A. Rothfeld: Thank you, Mr. Chief Justice.
A couple of points.
First, my friend, Ms. Blatt, said that it would make mincemeat and a complete mess out of the Compact to apply its terms as they were written.
We think that this Compact was negotiated over a period of 25 years.
If you look at the Joint Appendix, you will very painfully see that there are reams and reams of commentary on the -- on the negotiations.
I think the Court has to assume that when the drafters of the Compact used language and referred to State lines in one place and not in another place, they had some idea of what they were doing and they made these different choices intentionally.
So I think the Court simply should read the terms of the Compact--
Justice Sonia Sotomayor: So how do you deal with all the provisions she was mentioning with respect to the 60/40 division?
I can't make rhyme or reason of those provisions that don't use within State boundaries, but it has to mean that.
Charles A. Rothfeld: --Well, I don't think that it has to mean that.
If Oklahoma wants to enter Texas to take -- if it makes more sense for them to do it, they can.
If not, they can just wait for the water to flow down.
I think one thing which -- which Ms. Blatt did not address is the practicalities of how Subbasin 5 operates.
If you look at the map that was pointed out to you, Subbasin 5, which is what we're talking about here, is a very wide -- hundreds of miles wide, but extremely narrow.
It's 10 to 20 miles wide -- north to south for most of its length.
The reason the drafters drew this is because the States all take -- the assumption was all of the water in this Subbasin was going to be surplus water, literally excess water.
The States all take the water that they want to use outside of Subbasin 5, and so the -- the allocations that Ms. Blatt was referring to by Oklahoma are all in Subbasin 1; they are not in Subbasin 5.
The water that flows into Subbasin 5 is water that the States assumed was going to be surplus.
And so it would make no sense, having divided this water evenly between the compacting States, to think that the drafters would have required a water user in Texas at the far west end, which would get its portion of the 25 percent share two miles across the border in Oklahoma, instead to have to go 200 miles to the east to get it out of Texas.
That is not what the drafters intended to accomplish by this.
They created, by the plain terms of the -- of the language, a common pool of water defined by dam site, not by State line, and gave each State equal rights to access that water so long as they did not use more than 25 percent.
Your response to a question which was raised by Justice Kagan both to me and Ms. Blatt, I think the practical application of this is very simple.
One simply has to apply to the permitting authorities, wherever you're submitting your application from, they will apply their ordinary standards.
Oklahoma Water Resources Board does that now for applications from within Oklahoma; it can do it just as well for applications from Texas or other from other States.
And, again, the practicality of this is, water users are going to want to use water as close to where they are located as they can.
They're going to go right across the State line within Subbasin 5 if that's the place to get the water.
It makes no sense to require them to go hundreds of miles distant to get it.
Ms. Blatt suggested that we are reading the 25 percent limitation out of the Compact.
I think her reading reads the equal rights language out of the Compact.
They read the Subbasin 5 language as being all capped and no entitlement.
It does two things: It gives equal rights to the water, and then says that you can't take more than 25 percent within your State.
So it's designed to do two things.
It's designed to give you an entitlement and to say you can only use 25 percent of it.
And finally, Ms. Blatt raised questions of sovereignty and political concern.
As the Chief Justice suggested, this is a Compact that's an agreement between coordinate sovereigns.
They have decided what they want to do.
And the thing that gives respect to sovereignty is to read the plain language of the Compact as the framers wrote it.
Again, they spent 25 years writing it.
They took considerable care, as you can tell if you look at the negotiating history, in using the words for each provision.
Those words should be given meaning.
If there are no further questions.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Chief Justice John G. Roberts: Justice Sotomayor has our opinion this morning in case 11-889, Tarrant Regional Water District versus Herrmann.
Justice Sonia Sotomayor: The Red River is an important geographic feature of the southwest.
Both it and its tributaries are critical sources of waters for communities across four states.
Since 1980, the Red River Compact, a congressionally sanctioned agreement among the States of Oklahoma, Texas, Arkansas, and Louisiana, has -- has governed the allocation of water within the Red River basin.
The region, the Compact governs is divided into five geographic areas called “Reaches,” and each reach is further subdivided into smaller subbasins.
The case before us today deals with water rights within subbasin 5 of Reach II which covers portions of all four States.
Petitioner Tarrant Regional Water District is a Texas State agency responsible for supplying water to several cities located in the northern portion of the State.
A population boom coupled with a devastating drought has substantially increased Texas' need for water.
And so for years, Tarrant have been trying to locate suitable sources of potable water.
As part of its efforts from 2000 to 2002, Tarrant attempted to purchase water from the State of Oklahoma and some other parties, but these negotiations proved unsuccessful.
In 2007, Tarrant applied for a water permit to the Oklahoma Water Resources Board, the OWRB, the respondents here.
Tarrant sought to divert water from a tributary of the red base -- Red River located in Oklahoma's portion of subbasin 5 of Reach II of the Compact.
However, Tarrant was concern that a package of Oklahoma laws which plays restrict -- which plays conditions on the out of State export of water which wore its application.
Consequently, Tarrant also file a suit in Federal District Court alleging that these Oklahoma laws conflict with the Compact's water allocation and are therefore preempted by it.
I think every student in the audience is going to look up the word preempted today.
Tarrant also argued in the alternative that the Oklahoma water laws violate the dormant Commerce Clause.
The District Court granted summary judgment for respondents on both of Tarrant's claims and the Tenth Circuit affirmed its judgment.
We granted Tarrant's petition for a writ of certiorari and now we affirm the judgment of the Tenth Circuit.
Tarrant's preemption argument centers on Section 5.05 (b)(1) of the Compact which governs the distribution of water within subbasin 5 during times of normal flow.
In such circumstances, (b)(1) provides that each of the “Signature States shall have equal rights to the use of runoff originating in subbasin 5 and undesignated water following -- flowing -- following into subbasin 5, so long as the flow of the Red River at the Arkansas-Louisiana state boundary is 3,000 cubic feet per second or more, provided no state is entitled to more than 25% of the water in excess of 3,000 cubic feet per second.”
In other words, a minimum flow of water, 3000 cubic feet per second must be allowed to reach Louisiana, but above this level of flow, each state is entitled to use up to 25% of water in subbasin 5.
Tarrant contends that (b)(1) silence with respect to the role of state boarders in allocating water rights means that subbasin 5 must be treated as something of a borderless common in which each of the four signature states may cross each others boundaries to access a shared pool of water.
Whether the Compact preempts the Oklahoma Water Statute depends on the meaning of this silence because the Red River Compact is at core, a contract among its signature -- signatory states.
We construe it under the principles of contract law and seek to ascertain to intent of the parties who agreed to it.
Applying these principles to the Compact, three things persuade us that Tarrant's reading of (b)(1)'s ambiguous silence is wrong.
The first is that our jurisprudence has long recognized that the states do not easily or quietly cede their sovereign powers including their control over the waters within their border.
Accordingly, when confronted with silence and Compacts touching on the states' authority to control their waters, we have previously stated that if any inference at all is to be drawn from such silence on the subject of regular authority, we think it is that each state was left to regulate the activities of her own citizens.
Tarrant's position asked us to infer that the signatory states silently dispense with the core state prerogative to control waters within their own boundaries.
But we think that (b)(1) silence is best understood to indicate that the contracting parties drafted the Compact with this legal background in mind and therefore, did not intent to grant each other cross border rights under the Compact.
Indeed, the drafting of other interstate water compacts, many of which specifically provide for any cross border rights is a second factor that tips against Tarrant's reading.
This customary practice of explicitly including cross border rights and providing for the mechanics of managing any cross border diversions of water means that the present Compact silence regarding state borders is best understood as an indication that the parties to the Compact never intended to provide for any cross border rights.
Finally, the party's course of performance under the contract also count against Tarrant's position.
Tarrant attempts to purchase water from Oklahoma over the course of 2000 until 2002 was a strange move if Tarrant believed it was entitled to demand such water without payment under the Compact.
Prior to Tarrant's suit, none of the signatories to the Compact ever pressed for such a right.
And so again, the implication is that (b)(1) silence was not intended to create any cross border rights.
In some, we conclude that (b)(1) cannot be read to create a cross border right in the Compact's signatory and so Tarrant's argument that Oklahoma's water laws conflict with the Compact must fail.
This brings us to Tarrant's other argument that the Compact violates the dormant Commerce Clause by impermissibly discriminating against interstate commerce' for the forbidden purpose of favoring local interest by creating barriers to the distribution of water left unallocated under the Compact.
But Tarrant's arguments rest on the assumption that a substantial amount of Reach II subbasin 5 water located in Oklahoma is not a portion to any state and therefore is available to permit applicants like it.
That assumption is incorrect.
The interpretive comment for the Compact makes clear but during periods of normal flow, all states are free to use whatever amount of waters they can put to beneficial use.
Subject to the requirement that if the states have competing uses and the amount of water available and excess of 3000 cubic feet per second cannot satisfy all such uses.
Each state will utter the others right to 25% of the excess flow.
This means that if more than 25% of subbasin's 5 waters is located in Oklahoma, that water is not unallocated as Tarrant assumes, rather it is allocated to Oklahoma unless and until another state calls for an accounting and Oklahoma is asked to reframe from utilizing more than it's entitled share.
The Oklahoma water statutes cannot discriminate against interstate commerce in any unallocated water because the Compact leaves no water unallocated.
The judgment of the Court of Appeals for the Tenth Circuit is affirmed.
Our decision is unanimous.