Tarrant Regional Water Dist. v. Herrmann (11-889)

argument 11-889

Tarrant Regional Water Dist. v. Herrmann

Supreme Court of the United States 57 min 7 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the Red River Compact and why is Oklahoma trying to back out?

John G. Roberts 0:00

We'll hear an argument next this morning in Case 11-88-9, Tarrant Regional Water District v. Herman. Mr. Rothfeld.

Paul D. Clement 0:07

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. But 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.

Paul D. Clement 0:48

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 to 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 sub-basin are drawn not by state lines, but by reference to the last downside dam sites before tributaries of the Red River flow into the river itself.

Ruth Bader Ginsburg 1:44

JUSTICE GINSBERG. Mr. Rothfield, 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? 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.

Paul D. Clement 2:29

Well, the provision that we are relying on, I would say, is not sketched 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 sub-basin, so long as no state uses more than 25 percent of the water. That is quite expressed as to what is required. In — it's difficult to read that language to mean anything other than that the States can take this — What is the exact language? You want to read the exact language? The exact language — Just to refresh our recollection. It appears — it is reprinted on page 8 of the Blue Brief in the indented text, and it says, within this sub-basin, 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 —

Paul D. Clement 3:22

at times of normal flow within the flow of the Red River is 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 good amount. So the gist of the language is states have — all four signatory states have equal rights to the use

Stephen G. Breyer 3:43

of — It doesn't say that. It says no state is entitled to more than 25 percent. It says — 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's entitled. It just doesn't say anything about it.

Paul D. Clement 4:04

Well, I have to disagree with that. Where does

Stephen G. Breyer 4:06

it say something about

Paul D. Clement 4:06

it? 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 the runoff. That's the first part of it. The second part of it then says, provided that, no state is entitled to more than 25. All

Stephen G. Breyer 4:22

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?