Texas loses court battles over Oklahoma water purchases
BY ROBERT BOCZKIEWICZ World Correspondent
Thursday, September 08, 2011
9/08/11 at 7:27 AM
DENVER - Texas municipalities lost court battles Wednesday in their efforts to buy billions of gallons of Oklahoma water.
The 10th U.S. Circuit Court of Appeals ruled against Texas' challenge of Oklahoma laws that restrict exportation of stream water.
The Oklahoma Water Resources Board, which enforces those laws, said the ruling by the Denver-based court may end four years of litigation precipitated by 2009 changes to state laws.
The changes clarified that the Legislature must approve the sale of water that is subject to an interstate compact.
The board's position was that all of the water Texas wanted from Oklahoma is allocated by the Red River Compact, a 30-year-old interstate agreement, for in-state use.
The city of Irving, Texas, and the city of Hugo, Okla., filed a lawsuit claiming the laws violated the U.S. Constitution by unduly restricting interstate commerce. The Tarrant Regional Water District made the same claim in a separate lawsuit.
Irving and the Tarrant County district, which serves the Fort Worth and Arlington areas, had been willing to pay billions of dollars over many years to public and private water owners in Oklahoma.
All the water in the court battles is from southeastern Oklahoma tributaries of the Red River.
Hugo contracted to sell water to Irving.
Hugo, Irving and the Tarrant district had sued unsuccessfully in lower federal courts to overturn the anti-exportation laws.
Federal court judges in Oklahoma City and Muskogee had ruled against Tarrant and against Hugo-Irving, respectively. The municipalities appealed.
The appeals court ruled 3-0 against Tarrant in a 52-page decision.
The judges said the Red River Compact "insulates Oklahoma water statutes" from being challenged on the basis of unduly interfering with interstate commerce.
"Our role is not to pass judgment on the economic policy implications of the Red River Compact," they wrote. They said their role is "to ascertain what the compact says about state regulation" of water that is apportioned among the states which signed the 1980 compact: Oklahoma, Texas, Arkansas and Louisiana.
A Tarrant district official said his agency was reviewing the decision to determine the district's next steps.
The court ruled 2-1 against Irving and Hugo in a 28-page decision, concluding it did not have standing to bring the challenge of the commerce claim their lawsuit was based on.
The appellate judges said a political subdivision, such as Hugo, cannot sue its parent state "under a substantive provision of the Constitution," such as the interstate commerce issue.
The third judge in the Hugo-Irving case dissented, saying he thinks the cities do have standing to raise the commerce claim.
An attorney for Hugo and Irving did not respond immediately to a request for comment.
Gov. Mary Fallin and Attorney General Scott Pruitt said they were pleased with Wednesday's decisions. They affirmed they will continue to fight for the water the state is entitled to under the compact.
Tarrant's general manager, Jim Oliver, said the water district is disappointed by the ruling, but "we are committed to pursuing a water purchase agreement with the state of Oklahoma."
"We remain hopeful to sit down with Oklahoma officials to open a productive dialogue to seek an agreement beneficial to all parties," he said. "The water flowing out of Oklahoma every day could bring investment capital to Oklahoma to create jobs and build a better Oklahoma-Texas region, which would be good for everyone's future."
Original Print Headline: Texas loses battles over state water
