Case No. 10-6184 UNITED STATES COURT OF APPEALS … · 29/06/2011 · Case No. 10-6184 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT TARRANT REGIONAL WATER DISTRICT, a Texas

Case No. 10-6184

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

TARRANT REGIONAL WATER DISTRICT, a Texas State Agency, Plaintiff/Appellant,

v. RUDOLF JOHN HERRMANN, JESS MARK NICHOLS, LINDA LAMBERT,

FORD DRUMMOND, JOSEPH E. TARON, ED FITE, JACK W. KEELEY, KENNETH K. KNOWLES, AND RICHARD SEVENOAKS, in their official

capacities as members of the Oklahoma Water Resources Board (“OWRB”) and the Oklahoma Water Conservation Storage Commission,

Defendants/Appellees.

On Appeal from the United States District Court for the Western District of Oklahoma

Case No. CIV-07-45-HE The Honorable Joe Heaton

TARRANT’S ANSWER TO DEFENDANTS’ JUNE 29, 2011 SUPPLEMENTAL BRIEF

KEVIN L. PATRICK, OBA #19619 SCOTT C. MILLER PATRICK, MILLER & KROPF, P.C. 730 East Durant Avenue, Suite 200 Aspen, Colorado 81611 Telephone: (970) 920-1028 Facsimile: (970) 925-6847 [email protected] [email protected] July 7, 2011

CLYDE A. MUCHMORE, OBA #6482 HARVEY D. ELLIS, OBA #2694 L. MARK WALKER, OBA #10508 CROWE & DUNLEVY 20 North Broadway, Suite 1800 Oklahoma City, Oklahoma 73102-8273 Telephone: (405) 235-7734 Facsimile: (405) 272-5211 [email protected] [email protected] [email protected]

COUNSEL FOR APPELLANT TARRANT REGIONAL WATER DISTRICT

Appellate Case: 10-6184 Document: 01018671610 Date Filed: 07/07/2011 Page: 1

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................. ii

1. Tarrant’s Article III Standing Is Gauged by Tarrant’s Allegations, Not Defendants’ Ponderings About Them ....................................................3

2. Texas Is Entitled to Speak for Itself in Articulating Its Position About Tarrant’s Claims, and Has Done So...................................................6

3. Defendants’ Subordinate, Irrelevant, and Improper Extra-Record Assertions Are Also Materially Inaccurate....................................................9

4. Defendants’ Excursions into Compact Interpretation ................................14

5. Skull Valley ...................................................................................................16

6. Prudential standing.......................................................................................17

CERTIFICATE OF SERVICE ............................................................................19

CERTIFICATIONS UNDER ECF PROCEDURES..........................................20


ii 2213519.01

TABLE OF AUTHORITIES

CASES

Alabama v. North Carolina, 130 S. Ct. 2295 (2010)...............................................................................6, 15

Bond v. U.S., 564 U.S. ___, 131 S.Ct. 2355 (June 16, 2011) ..............................................17

Ex Parte Young, 209 U.S. 123 (1908).......................................................................................16

Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92 (1938).........................................................................................17

Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir. 2004) ...................................................14, 15, 16, 17

Tarrant v. Sevenoaks, 545 F.3d 906 (10th Cir. 2008) .....................................................................2, 4

The Wildernesss Society v. Kane County, Utah, 632 F.3d 1162 (10th Cir. 2011) .....................................................................17

OTHER AUTHORITIES

Wright & Miller, 17A Federal Practice and Procedure, §4232 (3d ed.) ...............17


TARRANT’S ANSWER TO DEFENDANTS’ JUNE 29, 2011 SUPPLEMENTAL BRIEF

Pursuant to this Court’s June 15, 2011 Order for supplemental briefing,

Tarrant answers Defendants’ June 29, 2011 supplemental brief.

Defendants’ Article III standing analysis proceeds as follows:

(i) Tarrant may sometimes argue that it has pled a preemption claim, but its

claim is really to enforce Texas’ Red River Compact (“RRC”) rights, as a

surrogate for Texas (pp.9-14);

(ii) Texas does not believe that Texas suffered a shortage of RRC water from

2005-2009, and Texas opposes Tarrant’s preemption claim and disagrees with

Tarrant’s compact interpretation that would permit Tarrant to access more water in

subbasin 5 than Texas is now receiving (pp.5-8);

(iii) Texas could not enforce the RRC in its own name without

demonstrating a past or current shortage of RRC water receipts, so Tarrant cannot

pursue this action as Texas’ “surrogate” to enforce Texas’ RRC rights (pp.14-17).

The numerous problems that underlie this analysis are both factual and legal.

Factually, Tarrant’s Count I is clear that Tarrant is asserting a Supremacy

Clause claim. In both Tarrant’s original and amended complaints, Count I

explicitly says it asserts a Supremacy Clause claim. Aplt.App. 42 and 814-15. Any

uncertainty on the question has been long settled; both the District Court and this

Court (in Tarrant’s prior appeal) have stated their understanding that Tarrant is


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asserting a preemption claim under the Supremacy clause.1 If Defendants still

have doubt, Tarrant unequivocally declares yet again that it is asserting a

preemption claim under the Supremacy Clause.2 Legally, Tarrant is entitled to rely

on the Compact as a preempting federal law without also directly enforcing the

Compact, as numerous authorities illustrate. See ¶1, infra.

Factually, Texas unqualifiedly supports Tarrant’s preemption claim and

position in this action, as Texas has said in amicus filings in both this Court and the

District Court. See ¶2, infra. And while Defendants’ digression into the question

of whether Texas could bring a compact enforcement action is immaterial to

Tarrant’s standing (since Tarrant is suing on its own behalf to assert its Supremacy

Clause rights), their assertion that Texas could not do so is wrong in addition to

being irrelevant. Texas could of course seek to enforce its own right to invalidate

Oklahoma’s laws repudiating Oklahoma’s Compact obligations. See ¶1, infra.

Factually, Texas has never declared that it is receiving all the RRC water to

which it is entitled; its agency only forecast in 2005 that its existing water

permittees using RRC water were not projected to experience water shortages for 1 6/29/11 Br. at 12 n.14 and 5 n.5; Tarrant v. Sevenoaks, 545 F.3d 906, 909 (10th Cir. 2008). 2 As for Defendants’ further assertion that “[o]n appeal, [Tarrant] has abandoned” its preemption claim and now asserts a compact-enforcement claim (Defs. 6/29/11 Supp. Br. at 18), Tarrant has no idea as to the origin of that notion, which is unsupported by citation.


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the years 2005-2009. Legally, even if Texas were to declare that it had received all

the RRC water apportioned to it for the years 2005-2009, that would not forever

limit Texas to those same water receipts or foreclose its other water

instrumentalities from acquiring additional quantities of RRC water apportioned to

Texas in future years to address their future water shortages. See ¶3, infra.

The salient portion of the remainder of Defendants’ argument contains

baseless legal assertions addressed in ¶¶5-7, infra.

1. Tarrant’s Article III Standing Is Gauged by Tarrant’s Allegations, Not

Defendants’ Ponderings About Them. The most fundamental of the defects in

Defendants’ arguments regarding Article III standing is that Defendants are not

entitled to rewrite Tarrant’s complaint (or as discussed in ¶2, Texas’ position about

that complaint).

In Count I of Tarrant’s complaint it asserts its own right under the

Supremacy Clause and Declaratory Judgment Act to invalidate Oklahoma’s

embargo on the ground that it conflicts with and is preempted by federal law in the

form of a Congressionally approved interstate water compact. As Tarrant detailed

in its 6/29/11 supplemental brief, it has asserted that Oklahoma’s embargo impedes

and obstructs its efforts, including its pending OWRB applications, to import water

from Oklahoma into Texas to meet an imminent, future water shortage.


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Despite this clear request for relief, Defendants argue that Tarrant instead

asserted that it is entitled, as a “surrogate” for Texas, to directly “enforce” Texas’

rights under federal law – the Compact. Tarrant has recited the salient portions

(for purposes of standing) of its own allegations, and a representative portion of the

kinds of evidence underlying them, in its answer to this Court’s Question No. 2 in

Tarrant’s 6/29/11 Supp. Br. at 2-7.

Neither the District Court nor this Court has had difficulty in understanding

Tarrant’s preemption claim. Tarrant has cited the District Court’s several

statements accurately characterizing Tarrant’s claim, in Tarrant’s 6/29/11 Supp.

Br. at 12 n.14 and 5 n.5. This Court similarly understood that Tarrant’s claim was

that “the Red River Compact preempts Oklahoma’s ‘anti-export laws’ under the

Supremacy Clause ….” Tarrant, supra, 545 F.3d at 909. Determining whose

rendition of Tarrant’s claim is correct does not require legal analysis, but reference

to Count I of the Amended Complaint itself (Aplt.App. 814-15) and its related

allegations, already discussed.

Although never made explicit, the underlying tone of Defendants’ argument

seems to be that Tarrant has pled a preemption claim as a pretext, and the Court

should hold that what Tarrant is really doing is vicariously asserting a Compact

violation claim on behalf of Texas. The same kind of contention could of course

be made by any defendant in any preemption case where the preempting federal


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law confers rights on third parties -- e.g., ERISA, antitrust laws, securities laws,

consumer credit protection laws, etc. Although Tarrant and the Court are again left

to speculate, Defendants may mean to imply that this case is somehow different

because the federal law here arises from an interstate compact. However, they fail

to respond to Tarrant’s authority showing this is not a meaningful distinction. On

April 7, 2011, Tarrant cited numerous authorities involving adjudication of

preemption claims based on interstate compacts as the preempting federal law, at 4

n.3 of “Tarrant’s Reply Relating to Its 3/18/11 Motion to Strike Improperly Filed

Material.” That footnote contains most of the same authorities cited in Tarrant’s

6/29/11 Supp. Br. at 12-13 n.16. None of those cases suggests that relying on an

interstate compact as the preemptive federal law should be regarded as a

subterfuge for enforcing the compact itself. Defendants have had awareness of

most of these authorities for 2½ months before filing their 6/29/11 brief, yet still

make the same arguments without addressing them, or citing any contrary

authorities.3

3 Just as Defendants refuse to acknowledge Tarrant’s right to plead its own claim, they simply refuse to acknowledge the District Court’s rejection of their contention that Oklahoma’s HB 1483 impliedly repealed all the other statutes comprising Oklahoma’s embargo (Order, Aplt.App. 783-785). See Def. 6/29/11 Supp. Br. at 20, stating that this case has now been reduced to a challenge solely against HB 1483: “The challenged statute here (HB1483) simply directs the OWRB to …”


6

Finally, Defendants' whole effort to replead for Tarrant is directed to

supporting Defendants’ Proposition II (at 14-17) -- that Texas can’t bring a

Compact enforcement action, so Tarrant also can’t bring one acting as Texas’

“surrogate.” That argument also wrongly assumes that Texas cannot enforce the

Compact to challenge Oklahoma’s embargo until its citizens are already suffering a

water shortage, a contention pressed by Defendants at 15 without citing a single

compact enforcement case. If that were a relevant inquiry, Defendants would still

fail. Briefing has already established that federal courts apply both contract

principles and legislative interpretation to interstate compacts, and it is well settled

that a contracting party’s repudiation of its promises are actionable – a principle

actually recognized in a compact enforcement action just last year, by the U.S.

Supreme Court (albeit finding no repudiation of the compact in that case).

Alabama v. North Carolina, 130 S. Ct. 2295, 2312 (2010). Thus, although

Defendants’ argument is immaterial since Tarrant is enforcing its own Supremacy

Clause rights (not Texas’ compact rights, which Texas may also be entitled to

enforce), the argument is also founded on an erroneous and unsupported legal

premise.

2. Texas Is Entitled to Speak for Itself in Articulating Its Position About

Tarrant’s Claims, and Has Done So. Defendants also assert that Texas repudiates

Tarrant’s claims and efforts to import water to meet a future water shortage in


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North Texas, and rejects Tarrant’s interpretation of the Compact. Just as

Defendants are not entitled to plead for Tarrant, they are no more empowered to

rewrite “Texas’ positions” about Tarrant’s pleadings. Their various renditions of

Texas’ view of this case4 are superfluous, both because Tarrant is not asserting

Texas’ rights, and because Texas has spoken for itself. Texas has done so in its

amicus filings which, starting with even their titles,5 unambiguously disclose its

support for Tarrant, its claims, and its construction of RRC §5.05. These are not

questions upon which Defendants may legitimately speculate. Tarrant will let

Texas’ words speak for themselves:

The District Court’s judgment would thwart Tarrant Regional’s ability to act under Texas law to obtain water supplies in the Red River Basin to which Texas has an equal right of use under the Compact.

Texas Tenth Circuit Amicus Brief filed 10/12/10, at iv. (Emphasis added.)

Thus, this suit arises precisely from an “effort…to acquire water allocated to [Texas] by the compact [that was] thwarted by one or more of the challenged [Oklahoma] statutes.”

4 E.g., “Texas’ view of the Compact is …” (Defs. 6/29/11 Supp. Br. at 8), “Texas does not appear to agree with Tarrant’s interpretation under the Compact” (id.), “…based on a reading of the Compact not supported by Texas” (id. at 16), “This theory of the Compact, however, has been rejected by Texas …” (id. at 27). 5 They are, respectively, “Brief of the State of Texas, as Amicus Curiae, in Support of Plaintiff’s Request for Declaratory and Injunctive Relief” and “Brief in Support of Appellant.” The amicus briefs are Aplt.App. 890, 1099 (Dist.Ct.), and Texas’ October 12, 2010 amicus filing herein.


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Id. at 3.

Accordingly, Tarrant Regional, as a lawful applicant for the use of Texas water, possesses a right to acquire water from Reach II, Subbasin 5 that is equal to the right of any lawful user of water in this Subbasin.

Id. at 3-4 (footnote omitted). (Emphasis added.)

Because Tarrant Regional is a proper permittee of Texas’s water rights, including rights granted to Texas under the Compact, it is an entity that is directly harmed by Appellees’ administration of Oklahoma statutes in a manner that conflict with and burden those rights. Accordingly, to the extent that Tarrant Regional has brought this suit to challenge those Oklahoma statutes that impede its lawful effort to acquire Compact-allocated waters to which Texas has an equal right of use, Tarrant Regional should be permitted to challenge those laws as inconsistent with the Compact. The trial court erred in holding otherwise.

Id. at 5. (Emphasis added.)

…Tarrant Regional should be permitted to maintain its Supremacy Clause claim challenging those Oklahoma laws that are impeding its effort to appropriate water to which Texas has been granted equal access under the Compact. As set forth below, Tarrant Regional is an entity permitted under Texas law to seek out and acquire water that Texas has a right to use; this is true even where the acquisition requires importation of the water into Texas. Accordingly, Tarrant Regional, as a lawful applicant for the use of Texas water, possesses a right to acquire water from Reach II, Subbasin 5 that is equal to the right of any lawful user of Oklahoma water.

Texas District Court Amicus Brief, Aplt.App. 891. (Emphasis added.)

Accordingly, to the extent Tarrant Regional has brought this suit to challenge Oklahoma statutes that impede its lawful importation of Compact waters to which Texas has an equal right of use, Tarrant Regional should be permitted to challenge those laws.


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Id., Aplt.App. 892. (Emphasis added.)

3. Defendants’ Subordinate, Irrelevant, and Improper Extra-Record

Assertions Are Also Materially Inaccurate. Defendants’ arguments are all

founded on the fictitious positions they impute to Tarrant and Texas. While this is

sufficient reason to reject them, Defendants also attempt to indirectly support their

premise that Texas rejects Tarrant’s position by citing references to the extra-

record materials upon which the District Court expressly refused to allow them to

rely to support their motion below (Aplt.App. 799, Order at 20). Notably, Tarrant

had sought to respond to those extra-record materials when Defendants belatedly

proffered them below, and the District Court’s refusal to consider them mooted that

request.6 This doesn’t stop Defendants from arguing to this Court in their first

proposition that Tarrant “deliberately made no attempt” (original emphasis) to

dispute the factual assertions which Defendants unsuccessfully sought to make

below -- in support of a motion that did even raise the viability of the preemption

claim to which those assertions related. Defs. 6/29/11 Supp. Br. at 3, Prop. I.7

6 “In view of Defendants having raised new factual issues, should the Court grant Defendants Motion to Supplement, Plaintiff respectfully requests that the Court allow Plaintiff a formal response addressing the new documents and arguments.” Tarrant’s 11/12/09 response to Defs. Mot. to Supplement in Dist. Ct., attached as Ex. A to Tarrant’s 3/18/11 Mot. to Strike, at 4, last sentence. 7 That is, a motion which sought a merits dismissal of only the dormant Commerce Clause claim, and raised the preemption claim at all solely to argue that primary (Continued …)


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Notwithstanding the District Court’s denial of leave for Defendants to rely

on those materials, Defendants included them in their Appendix, in violation of

this Court’s rules -- as set forth in Tarrant’s pending 3/18/11 Motion to Strike and

its 4/7/11 Reply on that motion8 – and even now describe them as “the only record

evidence at all on the question whether Texas has received its full allotment in this

subbasin ….” Defs. Supp.Br. at 5 (emphasis added).

Although Defendants’ further, extra-record factual assertions are irrelevant

and improper, they are also materially inaccurate and so must be rectified. Tarrant

does so below.

Had the District Court granted Defendants’ motion and allowed Tarrant to

respond, Tarrant would have shown that Defendants took Mr. Settemeyer’s

deposition out of context and misrepresented it; that Mr. Settemeyer was testifying

only as to whether the existing Texas water users currently using RRC water under

Texas permits were projected to incur shortages, between the years 2005-2009, of

the water to which they were individually entitled under their individual permits;

and that Texas’ subbasin 5 in-state streams consistently fall far short of providing jurisdiction barred its consideration – a contention rejected by the District Court and not raised by Defendants on appeal. 8 See also Tarrant’s 11/24/10 Reply Brief on the merits at 5-6, citing in n.10 this Court’s jurisprudence that disallows consideration of such materials which were not properly before the District Court when it rendered the decision from which appeal is taken.


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Texas all the Compact water to which it is entitled as a State. Since neither that

issue – nor even the viability of Tarrant’s preemption claim – was raised by

Defendants’ dispositive motion, Tarrant had no occasion for presenting such

responsive evidence.

However, even the Settemeyer deposition on its face suffices to disprove

Defendants’ assertions. Herman Settemeyer is an employee of the Texas

Department of Environmental Quality (TCEQ) and an appointed engineering

representative to the Texas Red River Compact Commission. Defendants cite Mr.

Settemeyer’s answers to deposition questions concerning the Agency Strategic

Action Plan dated February 1, 2005 (not 2009). Def. App. 44. Accordingly, Mr.

Settemeyer’s references to that plan concerned the plan’s goal projections for its

current water licensees during that time period, not a record of their historical

water usage.9 More important, those projections did not purport to legally posit

Texas’ water entitlements under the Red River Compact – but instead, as Mr.

Settemeyer repeatedly explained and is set forth in the Plan itself – pragmatically

applied a mere “proxy” for that admittedly undetermined question, focusing

9 All Texas State Agencies prepare forward looking, Agency Strategic Action Plans to be used as internal and budgetary tools for the long-term, future oriented process of agency strategies and goal setting to assist in aligning resources responsive to needs of an agency. Chapter 2056, Strategic Action Planning, Texas Government Code. They are not reports of occurrences, but forecasts of efficiencies.


12

instead on whether the water licensees were expected to experience individual

shortages.10 Even if Defendants could plausibly urge that their repeated,

unsuccessful attempts to extract contrary admissions from Mr. Settemeyer11

somehow justify their assertions to this Court, the Agency Strategic Plan’s explicit

contrary declaration cannot be ignored:

Data Limitations: The Red River Compact Commission has not initiated formal accounting of water deliveries to each state, therefore “water shortages” is used as a proxy for determining whether Texas has received its equitable share of waters under the terms of the compact. … If shortages occur, and once the commission approves rules for the basin-wide accounting, a formal water accounting will commence.

Def.App. 56-57 (emphasis added).12

10 Mr. Settemeyer repeatedly testified that the matrix for projected agency performance which Defendants were questioning him upon was one of whether the “Texas users or Texas water right holders in existence at this time … identified any shortages …. If our water users don’t report any shortages…then we use that as to indicate that Texas was receiving the waters under the compact that it believed it should receive.” Defs. App. 29-30 (emphasis added). Mr. Settemeyer’s definition is taken straight from the Agency Action Plan itself. Defs. App. 56. 11 Defendants tried four times to solicit the response which they now proclaim, without success, finally triggering an objection for harassing the deponent from the Texas Attorney General. Defs. App. 31-34. 12 Whether the few existing permittees diverting between 2005-2009 have been satisfied in those years says nothing as to the amount of water which Texas has been apportioned. Even when there are competing uses Texas is entitled to 25% of Subbasin 5’s flow above 3000 cfs. Current RRC water use by Texas’ permittees is far less than the “equal share” assured to Texas within the entire Subbasin when there are competing uses, and does not impact at all the unlimited share to which it is entitled when there are none.


13

Plainly none of this can warrant Defendants’ assertion to this Court that Mr.

Settemeyer’s testimony and the Plan evince an acknowledgment by the State of

Texas that it received its full lawful entitlement to all water available to it under the

Red River Compact from 2005 through 2009 (e.g., Defs. 6/29/11 Supp. Br. at 5,

stating that Settemeyer “testified in his deposition that Texas has received its full

compact allotment for at least the years 2005-2009”).13

Returning to fundamentals: as Tarrant detailed in its 6/29/11 Supplemental

Brief, Tarrant’s claim is not based on whether Texas has received or is now

receiving its RRC apportionment (although it is not), but on Oklahoma’s unlawful

obstruction of Tarrant’s future acquisition of water to meet a projected water

shortage based on population growth data for Tarrant’s service area, one of the

most populated areas of the nation. Defendants’ contentions constitute an effort to

13 Defendants also mischaracterize TCEQ’s action in declining to act on an application for Interbasin Transfer Permit under Texas law. Defendants assert that TCEQ declined to exercise jurisdiction because it disagreed with Tarrant’s interpretation of the Compact. Again Defendants misstate the facts. As the application reflects, Tarrant specifically stated that pursuant to the Compact it had submitted an application to the Oklahoma Water Resources Board to appropriate the waters apportioned to Texas, but the law in Texas requires a separate interbasin transfer permit of any “waters of Texas” which remove water from one watershed into another, to insure that once water is imported it is not claimed by others in Texas. Aplt. App. 709. All that TCEQ did was return the application after finding that it did not have jurisdiction at that stage to process an application for interbasin transfer permit appropriating water from Oklahoma. Aplt. App. 707. See also Texas’ 10/12/10 amicus filing in this Court at 3-5.


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improperly inject and then distort non-record evidence in support of a factual

assertion that is irrelevant to Tarrant’s claim.

4. Defendants’ Excursions into Compact Interpretation. Although this

Court’s Order inquires only about Tarrant’s standing to assert its preemption

claim, Defendants take the opportunity to repeat their interpretational arguments.

They first do so at pp.3-4 with no semblance of justification. Later they do so at

pp.19-20, prefaced by the observation that this Court recognizes that standing

issues may sometimes warrant examination of the merits of the underlying claim --

citing Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223 (10th Cir.

2004) -- i.e., the same decision this Court inquired about on a different issue.

Skull Valley itself shows that Defendants are mistaken in their notion that the

standing inquiry is properly collapsed into the merits in this case. Like this case,

Skull Valley was addressing a preemption claim, and the court there rejected the

Utah officials’ assertion that standing could be collapsed into the merits for such a

claim. Id. at 1236-37. As this Court stated, while the merits can be considered

when plaintiff lacks a “legally protected interest” because its claim has “no

foundation in law” (id. at 1236, citing cases), in the preemption case before it

plaintiffs had asserted a legally protected interest with a foundation in law -- i.e.,

their rights under the Supremacy Clause to seek state licenses without obstruction

of preempted state laws:


15

Here, at the time the district court issued its summary judgment ruling, [plaintffs’] claims did have ‘a foundation in law.’ … PFS asserted a right under the Supremacy Clause to seek a federal license pursuant to these established procedures without interference from allegedly preempted state statutes.

Id. at 1236 (emphasis added).

In any event, Defendants’ interpretation of the RRC is demonstrably wrong,

given §5.05(b)(1)’s unambiguous provision for the signatories to have “equal

rights” to the Subbasin’s water, as detailed in Tarrant’s merits briefs. The Supreme

Court has made clear that concerns of federalism and separation of powers deter

courts from reading absent terms into an interstate compact,14 and no contortions of

Compact language would have been necessary for the drafters to achieve one of

Defendants’ many alternative interpretations. The Compact could have done that

in one concise sentence: “Each state shall have the right to use only the water

within its own borders.”15

14 E.g., Alabama v. North Carolina, supra, 130 S.Ct. at 2312-13. 15 Not only is Defendants’ interpretation unsupported by §5.05’s “equal rights” provision, it is irreconcilable with the Compact’s comment on that provision that unless there are “competing uses” for the same water, “all states are free to use whatever amount of water they can put to beneficial use.” Aplt.App. 435, p.17 (emphasis added). Under Defendants’ view, Texas could never invoke this right to freely use the Subbasin’s water for which Oklahoma had no competing use, since as Defendants now finally acknowledge, that water does not flow from Oklahoma into Texas.


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5. Skull Valley: Defendants’ eight-page discursive on Skull Valley

concludes with their recital of all the factual differences between that case and this

one that they could identify. However, those differences are no more meaningful

than pointing out that Skull Valley concerned nuclear fuel, a lease of land, and Utah

laws, while this one concerns stream water, no lease, and Oklahoma laws.

Defendants do not discuss Skull Valley’s material holdings: that a license

applicant may challenge as preempted a state’s laws obstructing obtainment of a

license on the ground that those laws conflict with federal law; and that

justiciability is not impaired by the presence of other potential obstacles to

plaintiff’s ultimate objective. That an OWRB rather than a NRC license is

involved here is immaterial, as are each of the other distinctions Defendants recite

without explanation of their significance to the two holdings in Skull Valley

relating to standing.

While purporting to discuss Skull Valley, Defendants take the opportunity to

tender an argument that Tarrant cannot obtain meaningful relief here because

RRC’s signatories are not parties. Id., pp.20-21. Defendants even go so far as to

assert that because the State of Oklahoma is not a named party it is “not bound by

the result” of this case – a pronouncement without citation to authority which

contradicts more than a century of federal jurisprudence under Ex Parte Young,

209 U.S. 123 (1908) as explicated in numerous treatises including, for example,


17

Wright & Miller, 17A Federal Practice and Procedure, §4232, n.9 (3d ed.)

(discussing power to enforce state’s “future compliance”). Defendants similarly

inject a related contention at p.27 to conclude their discussion of “prudential

standing,” arguing that the Compact should not be interpreted without

“participation” of its signatories, again without citing authority, including the

Supreme Court’s contrary decision in Hinderlider v. La Plata River & Cherry

Creek Ditch Co., 304 U.S. 92, 110-11 (1938) (quoted in Tarrant’s 6/29/11 Supp.

Br. at 14).16

6. Prudential standing: Defendants offer only a pro forma response to the

Court’s prudential standing question (an issue waived by Defendants in any event).

Defendants’ failure to cite, let alone discuss the critical case law on this question –

Bond v. U.S., 564 U.S. __, 131 S.Ct. 2355 (June 16, 2011) and The Wildernesss

Society v. Kane County, Utah, 632 F.3d 1162 (10th Cir. 2011) – is difficult to

16 Defendants are not even deterred from repeating their argument that the lower court should not decide this case because if §5.05 is construed to allow Tarrant to meet its shortfall with 460,000 of the 6 ½ million acre feet that Oklahoma is discharging into the Gulf, the salinity of the Red River may increase to the purported detriment of the downstream states, who are not parties to this action. Defs. 6/29/11 Supp. Br. at 21. Hinderlider is alone sufficient answer to this assertion, but Tarrant also addressed it in its 11/24/10 Reply Brief at 16 n.23. Additionally, the argument is contrary to the tenet of Skull Valley and Tarrant’s 10/5/10 Opening Br. Prop. IV(B) that obstacles to Tarrant’s OWRB applications that may conceivably be tendered, independent of the validity of Oklahoma’s embargo, do not impair the justiciability of Tarrant’s constitutional claim.


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understand. Whatever Defendants’ reason, their response is no more than a

reiteration of their factually baseless efforts to force their own recharacterizations

of Tarrant’s allegations and Texas’ position on them, and to distort the same

evidence they were denied leave to belatedly file in support of their dispositive

motion below. This is adequately discussed above with Tarrant’s answer to

Defendants’ arguments on Article III standing.

Respectfully submitted,

s/Clyde A. Muchmore CLYDE A. MUCHMORE, OBA #6482

HARVEY D. ELLIS, OBA #2694 L. MARK WALKER, OBA #10508 -Of the Firm- CROWE & DUNLEVY 20 North Broadway, Suite 1800 Oklahoma City, Oklahoma 73102-8273 Telephone: (405) 235-7734 Facsimile: (405) 272-5211 [email protected] [email protected] [email protected] -AND-

KEVIN L. PATRICK, OBA #19619 SCOTT C. MILLER -Of the Firm- PATRICK, MILLER & KROPF, P.C. 730 East Durant Avenue, Suite 200 Aspen, Colorado 81611 Telephone: (970) 920-1028 Facsimile: (970) 925-6847 [email protected] [email protected]


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ATTORNEYS FOR PLAINTIFF/ APPELLANT TARRANT REGIONAL WATER DISTRICT

CERTIFICATE OF SERVICE

I hereby certify that on this 7th day of July, 2011, I electronically

transmitted the foregoing document to the Clerk of Court using the ECF system.

Based on the electronic records currently on file, the Clerk of Court will transmit a

Notice of Docket Activity to the following ECF registrants:

M. Daniel Weitman [email protected] Gregory Thomas Metcalfe [email protected] Oklahoma Attorney General’s Office Litigation Division 313 N.E. 21st Street Oklahoma City, Oklahoma 73105

Charles T. DuMars, Esq. Stephen Curtice (admitted pro hac vice) [email protected] Law Resource Planning Associates 201 3rd Street NW, Suite 1750 Albuquerque, New Mexico 87102 Dean A. Couch, General Counsel [email protected] Oklahoma Water Resources Board 3800 N. Classen Oklahoma City, Oklahoma 73118

I further certify that on the 7th day of July, 2011, seven true and correct

copies of the foregoing Answer to Defendants’ June 29, 2011 Supplemental Brief

were dispatched to Federal Express for delivery within 2 business days to:

Ms. Elisabeth A. Shumaker Clerk of the Court United States Court of Appeals for the Tenth Circuit Byron White United States Courthouse 1823 Stout Street Denver, Colorado 80257


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CERTIFICATIONS UNDER ECF PROCEDURES

The undersigned certifies, pursuant to the Court’s ECF procedures adopted

in General Order 95-01 (March 18, 2009) as follows:

1. All required privacy redactions have been made;

2. If a hard copy of the foregoing document has also been submitted, the

ECF submission is an exact copy of such hard copy;

3. The ECF submission of this document was scanned for viruses with the

most recent version of a commercial virus scanning program Trend Micro

OfficeScan Client, Version 10.0, licensed by Trend Micro Inc., which is the most

current version of such program and is updated hourly, and, according to the

program is free of viruses.

s/Clyde A. Muchmore

2213437


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Case No. 10-6184 UNITED STATES COURT OF APPEALS … · 29/06/2011 · Case No. 10-6184 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT TARRANT REGIONAL WATER DISTRICT, a Texas