As noted by Supreme Court Justice Sonya Sotomayor, there is a long history of battles involving the Red River, including a Civil War campaign, 1920’s mobilization of state militias, and the college football rivalry between the Sooners and the Longhorns.  Earlier this year, the United States Supreme Court decided another Red River battle.  In the unanimous decision, the Court ruled that a Texas water district could not enter into Oklahoma and divert water from the Red River to serve its customers.

The battle began when Tarrant County Regional Water District (“Tarrant”), a state agency charged with providing water to north-central Texas, including Fort Worth, determined it would seek water from Oklahoma to meet its long-term water needs.  Tarrant sought a permit for 310,000 acre-feet per year of surface water from an Oklahoma Red River tributary. 

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Oklahoma laws, however, effectively prevent any out of state applicant from obtaining a permit to acquire water.  Knowing that its permit would be denied, Tarrant filed suit in federal court seeking an order that it was entitled to the water from Oklahoma.  Both the trial and appellate courts dismissed the appeal.

Tarrant argued the Red River Compact (an agreement between Oklahoma, Texas, Louisiana and Arkansas ratified by Congress in 1980) allowed Texas to enter Oklahoma and divert water from the Kiamichi River, a tributary of the Red River.  Oklahoma took the opposite position, arguing that no such right existed under the Compact.

The Supreme Court found that the Compact was ambiguous as to whether Texas was permitted to enter into Oklahoma and divert water from this portion of the Red River.  Where a contract is ambiguous, courts then look to other evidence to determine the intent of the parties.  In this case, that evidence favored Oklahoma for three reasons.

First, states do not easily give up sovereign powers, and when they do so, it is usually expressly stated.  The Court refused to construe silence in the Compact as discharge of Oklahoma sovereignty regarding its state waters. 

Second, other compacts contain language expressly allowing one state entry into another to acquire water, but the Red River Compact does not, indicating it was not intended.

Finally, Tarrant’s own conduct cut against its arguments.  From 2000 to 2002, Tarrant offered by buy water from Oklahoma, but negotiations were abandoned.  If Tarrant believed it had a legal right to the water, it would not have attempted to purchase it.  Further, neither Texas, nor any of the other states involved previously sought to cross the Oklahoma border and acquire water from the Red River, implying the states did not believe this right existed under the Compact.

In light of this, the Court held the Red River Compact does not create any cross-border rights that would allow Texas to obtain water from Oklahoma and Tarrant’s lawsuit was dismissed.  While the Supreme Court’s decision was based heavily on the specific provisions of the Red River Compact, it will likely be cited by states looking to secure rights to their water against out-of-state appropriations.

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