Legal Docket – Water rights fight


NICK EICHER, HOST: It’s Monday morning and this is The World and Everything in It. Today is the 26th of October, 2020. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Well, lots of goings-on at the Supreme Court. Last week the justices placed more cases on the docket for this term—the total now at 40. As I’ve said frequently, the court hears 70 to 80 cases per term on average.

One new question the court will consider is a big and timely one. It’s this: When may law-enforcement officers enter a home without a warrant?

Another case will decide some questions around the Trump administration’s immigration policies.

EICHER: On now to oral arguments today. We have two of them.

To set up the first case, think of this: Let’s say you agree to bring a barrel of apple cider to a friend. The friend opens the barrel. He finds it’s three-quarters full. The rest is gone. It’s evaporated.

Nevertheless, could you be said to have delivered a full barrel?

Answer: as with so many complicated legal questions, that depends.

AUDIO: [Pecos River sound]

This first case concerns evaporation. Not evaporation of cider, but of river water—the one you’re hearing.

Texas and New Mexico divvy up the waters of the Pecos River. That’s a tributary of the Rio Grande. The Pecos runs about 900 miles through both states.

REICHARD: The two negotiated a compact as far back as 1948 to manage the river. Basically, New Mexico agreed not to deplete the river before it got to Texas.

Details, though. Since the 1970s, the states have been sparring over some aspect of that compact.

A little background to this specialized area of the law: the Supreme Court appoints an official known as a river master to figure out who owes what amount of water based on a formula. And only the justices can judicially review what the river master decides.

EICHER: The most recent dispute began when Hurricane Odile in 2014 caused widespread flooding in the southwest. The water reservoir in Texas overran and the state needed New Mexico to hold some of the Pecos River water in its reservoir, about 50 miles upstream. 

New Mexico agreed. Over time, both states allowed water to flow from the reservoirs. But during that time, New Mexico lost a lot to evaporation.

REICHARD: That’s where we find the dispute.

The river master in this case counted evaporated water as delivered water, crediting New Mexico for making good on its end of the deal. And Texas objects.

Kyle Hawkins is Texas solicitor general:

HAWKINS: I can try to make it easy for Your Honor just by pointing out that the River Master has awarded a delivery credit that the compact doesn’t allow for. And if the Court reaches that conclusion — and to reach that conclusion, the Court only has to look at the compact and the manual — everything else drops away.

His argument: Why should New Mexico receive credit for delivering water Texas never received? The river master exceeded his authority here and besides that, made his decision retroactive. And that’s a no-no under the compact.

New Mexico’s lawyer is Jeff Wechsler. He countered Hawkins point by point.

WECHSLER: There is no dispute that Texas requested that the stormwater be stored for its benefit, and there is no dispute that New Mexico conditioned its consent on the agreement that all of the evaporation would be charged to Texas. Nor is there any purchase to Texas’s argument that the credit to New Mexico was untimely. Both states knew from the time of the flood that a retroactive adjustment to the accounting would be made.

Hawkins, for Texas, endured the toughest questioning. 

Listen to Justice Elena Kagan:

KAGAN: And then, you know, if you look at the record that way, it’s you lost, and all of a sudden you think the process isn’t any good because you came out on the short side of the process. But, you know, isn’t this a process that you agreed to and went forward with for years? 

HAWKINS: No, Justice Kagan, I think that the record tells a very different story.

Hawkins pointed to a record that says New Mexico changed its stance along the way. 

Justice Stephen Breyer tried to simplify.

BREYER: So the question is, is Texas given a debit for the amount that had belonged to Texas, the evaporated water, which you can’t get because it’s in the sky. And the River Master says yes. That seems to make sense. That’s why we appoint River Masters, to figure those things out. You say: Oh, no, nothing in the basic document here, the agreement, the compact, nothing allows that.

Hawkins pointed out that the only way New Mexico can be credited the evaporated water is if some exception applies. And none does. 

So that’s that.

HAWKINS: New Mexico has the equities all wrong. New Mexico is asking this Court to give it something for nothing. It wants credit for water that it never delivered to Texas, that neither state could have used, and that would have caused an environmental catastrophe in New Mexico had it been released by the federal government. Under these circumstances, it would be extraordinarily inequitable to deprive the farmers and businesses of west Texas of a year’s worth of irrigation water.

Texas had a tough time. Comparatively, New Mexico had it easy. I don’t expect an ideological split among the justices. Based on the lopsided questioning, I think New Mexico is going to win here. If not, the state will take a huge hit to its budget and farmers may be forced to reduce groundwater pumping that keeps crops alive.

If you’ve ever been frustrated by a big city parking ticket—and its system of fines and fees—draw near.

This one involves the city of Chicago. Its practice is to impound cars whose owners fail to pay fines and fees. To get your car back, you have to pay up. And it can cost thousands of dollars. For one woman, the city demanded nearly $12,000 for her 54 separate violations.

She earned a net monthly income of $2,000, and had a child to raise. Tough to fork over $12,000. So she worked out a payment plan with the city. She asked for her car back so she could get to work, but the city refused, saying the car secured her debt.

She filed for bankruptcy and then tried to get her car back. So  did three other people similarly situated for this lawsuit.  

Filing for bankruptcy stops most collection actions against the debtor, until the court can sort things out. 

The legal question is whether the bankruptcy code favors the debtors or the creditors when it comes to impounded cars.

Justice Brett Kavanaugh got to the purpose of bankruptcy in this exchange with the city’s lawyer, Craig Goldblatt. He included a little side swipe at Chicago.

KAVANAUGH: If the goal of bankruptcy is a fresh start, according to this brief, Chicago’s system is thwarting that, making the Northern District of Illinois a leader in the country in  non-business Chapter 13 bankruptcy filings because of what Chicago’s doing. I just wanted to give you a chance to respond to that.  

GOLDBLATT: Sure. So — so two points if I may, Justice Kavanaugh.

Goldblatt said the important thing is that the city impounded the cars before these people filed for bankruptcy. So it’s too late now to get them back.

But Justice Neil Gorsuch managed to get in his own swipe at Chicago before getting the the merits:

GORSUCH: Good morning counsel. I know your client’s practice of holding onto cars is well established and highly controversial. But looking to the bankruptcy code…

The trouble is the meaning of a phrase in the bankruptcy code. It prohibits after bankruptcy proceedings start “any act … to exercise control over property of the (debtor’s) estate.”

Key word: act. Chicago argues it’s not an “act” to continue doing what it’s already doing: that is, preserving the status quo. Creditors have no obligation to return property already in its possession, until a bankruptcy judge tells it to.

Justice Sonia Sotomayor wondered about the limits of that “status quo.”

SOTOMAYOR: Counsel, would permitting a car to sit out in weather, in bad weather, or to be broken into or bumped into while in the City’s possession — does that change the status quo? 

GOLDBLATT: So, Justice Sotomayor, I don’t believe those actions or — or violations of duties or what have you violate the automatic stay.

She didn’t seem persuaded. Chicago’s lawyer argued that preserving things as they are is the “metaphysical philosophy” of bankruptcy.

Chief Justice John Roberts picked up on that.

ROBERTS: Once the debtors ask you to give back the car, that resolves this metaphysical debate, right? You make the action at that point to decide either to return it or not, correct?

GOLDBLATT: Your honor, our fundamental position is the work of the automatic stay, as long as we’re preserving the status quo, is not violating.

Lawyer for the debtors is a retired bankruptcy judge, Eugene Wedoff. He pointed to other language in the bankruptcy code that could mean what the city is doing here is illegal.

But several justices brought up the idea that Congress should be the body to fix this problem. Justice Gorsuch:

GORSUCH: Isn’t the simplest thing in the world and the most natural, though, if Congress wanted to get at retaining possession, just to say obtain or — obtain or retain possession, something like that? 

WEDOFF: That certainly would have been another way to do it…

This is one of those cases that leave you frustrated. Creditors are entitled to protection for what’s owed them. Debtors in trouble need their cars to get to work. I’m sure the court will deal with the temptation to play Solomon here because the bankruptcy code isn’t solving problems in its current design. But as you heard Justice Gorsuch hinting, I have a sense the court’s going to say: Congress, you made this mess. You clean it up.

And that’s this week’s Legal Docket!


(AP Photo/J. Scott Applewhite, File) This June 15, 2020 file photo shows the columns of the Supreme Court with the Capitol at background right in Washington. 

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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