In Deep Water: U.S. Supreme Court to decide how states share the drying Rio Grande, and New Mexico could lose big

As severe drought returns to New Mexico, farmers and skiers alike fret over the state’s lack of snow. Meanwhile, on a cold, cloudy Monday morning in Washington, D.C., attorneys for New Mexico, Texas, Colorado and the United States government grappled over the muddy waters of the Rio Grande. In its U.S. Supreme Court case against New Mexico and Colorado, the State of Texas says that by letting farmers in southern New Mexico pump from wells near the Rio Grande, our state has failed to send its legal share of water downstream. The water fight has some New Mexicans gnawing their nails—and not just southern farmers whose water rights could be cut if Texas prevails. See all of NM Political Report’s stories on Texas v. New Mexico to date. Monday’s oral arguments before the court, over whether the feds can intervene under the Rio Grande Compact, drew a large crowd from the Land of Enchantment.

New Mexico hits the high court on the Rio Grande

WASHINGTON, DC—On a frigid Monday morning in the nation’s capital, as most of the press corps turned its attention toward a water dispute between Florida and Georgia, attorneys for New Mexico and Colorado tried to fend off the ability of the United States government to protect its water interests on the Rio Grande. Attorneys for the U.S. Bureau of Reclamation and the states of Texas, Colorado and New Mexico presented oral arguments to the US Supreme Court. The issue at hand is whether the United States has the right to intervene in the longstanding interstate water dispute under the Rio Grande Compact. Each attorney had 10 to 20 minutes to weigh in on whether the federal government has a right to join the case based on the interstate compact the three states signed to divvy up the Rio Grande’s waters. In 2013, Texas sued its two northern neighbors, alleging that by allowing farmers in southern New Mexico to pump groundwater, which is hydrologically connected to the Rio Grande, New Mexico wasn’t sending its legal share of water to Texas under the Rio Grande Compact.

What Trump’s Supreme Court pick holds for Indian Country

During the Senate hearings that put Neil Gorsuch on the Supreme Court this year, Democrats made it clear they were leery of his conservative judicial record. Gorsuch was confirmed in April along party lines, and no Western Democrat voted in his favor. But Gorsuch has a strong background in Indian law and a record of recognizing tribal sovereignty and self-determination, and, those concerns notwithstanding, his nomination may well represent a potential positive development on big cases in Indian Country. In a court dominated by East Coast justices, Gorsuch is from the West, the source of many Indian law cases. He grew up in Denver, where he later spent 10 years as a circuit court judge.

Suspect evidence informed a momentous Supreme Court decision on criminal sentencing

More than 30 years ago, Congress identified what it said was a grave threat to the American promise of equal justice for all: Federal judges were giving wildly different punishments to defendants who had committed the same crimes. The worries were many. Some lawmakers feared lenient judges were giving criminals too little time in prison. Others suspected African-American defendants were being unfairly sentenced to steeper prison terms than white defendants. In 1984, Congress created the U.S. Sentencing Commission with remarkable bipartisan support.

AG asks Supreme Court to let states tax internet sales

New Mexico’s Attorney General is joining with others who say the state should be able to collect sales or gross receipts taxes on all internet sales. Hector Balderas announced Monday that he filed an amicus curiae, or friend of the court, brief in a case challenging a 1992 U.S. Supreme Court decision. In all, 36 attorneys general from 35 states and the District of Columbia signed onto the brief, led by Colorado AG Cynthia H.Coffman. That decision, Quill Corp. v. North Dakota, was aimed at determining whether a state could collect taxes on sales originating from a company with no physical presence, or “nexus,” in that state.

Young, out-of-state lawyer could be a new federal judge for NM

A federal court of appeals judge from New Mexico, who is expected to step down soon, could be replaced by a lawyer with less than 10 years of legal work under his belt and very loose ties to the state. NM Political Report learned the White House sent a short list of possible replacements for the 10th Circuit Court of Appeals Judge Paul Kelly Jr. Names on the list include  prominent judges and lawyers who currently practice in New Mexico—and one is a lawyer from Washington D.C. who previously worked for a Utah senator and whose family owns a cattle ranch in New Mexico. William Levi, a lawyer in his early 30s who graduated law school in 2010, spent a year as a clerk for U.S. Court of Appeals Judge Anthony Scirica and later for U.S. Supreme Court Justice Samuel Alito. Levi also spent about two years as a staffer for Utah Senator Mike Lee, a libertarian-leaning member of the Republican Party. NM Political Report left a voice message for Levi at his Washington D.C. office and emailed him, but only received an out of office reply.

U.S. Supreme Court tosses cross-border shooting case back to lower court

The nation’s highest court on Monday sent a case involving the cross-border shooting death of a Mexican teenager back to the U.S. 5th Circuit Court of Appeals for reconsideration. 

That leaves the question of whether the teen’s family can sue the U.S. Border Patrol agent who fired across the Rio Grande and killed him unanswered.  

The case involves the 2010 death of Sergio Adrian Hernandez Guereca during what officials called a “rock-throwing incident.” The teen was shot and killed by agent Jesus Mesa Jr., who was patrolling the banks of the Rio Grande in El Paso. Hernandez Guereca was on the Mexican side of the border, in Ciudad Juárez, when Mesa fatally shot him from the Texas side. 

The teen’s family initially sued the U.S. government, U.S. Customs and Border Protection, the Department of Homeland Security and Mesa, alleging the teen’s civil rights had been violated. A district judge dismissed the charges because Hernandez was a Mexican national and was on Mexican soil when the shooting occurred. 

An appellate court ruled in 2014 that Mesa could be sued in his individual capacity although the American agencies could not. Then, in April 2015, the U.S. 5th Circuit Court of Appeals sided with Mesa, saying he was entitled to immunity because Hernandez was south of the Rio Grande when the shooting happened.  

The teenager’s family appealed to the U.S. Supreme Court, and in October 2016, the high court agreed to consider the case. On Monday, the Supreme Court sent the case back to the 5th Circuit, ordering the court to revisit its previous ruling in light of other court decisions that have happened since.  

“The facts alleged in the complaint depict a disturbing incident resulting in a heartbreaking loss of life,” the court wrote.

Heinrich will vote against Gorsuch confirmation

U.S. Sen. Martin Heinrich will vote against the confirmation of Neil Gorsuch to the U.S. Supreme Court. He cited ties between the Donald Trump administration and Russia as one reason. Heinrich also indicated he would join other Democrats in a rare filibuster of the Supreme Court nominee by not voting to invoke cloture. Sixty senators are needed to invoke cloture and end debate, moving toward a final vote. There are 52 Republicans in the Senate.

Udall will vote against Gorsuch, says should need 60 votes

Senator Tom Udall will not vote to confirm Neil Gorsuch to the Supreme Court and will support the need for 60 votes for the confirmation. The Democratic U.S. Senator made the announcement Friday in a statement to media. Udall, one of the more liberal members of the U.S. Senate, was never likely to vote for Gorsuch. But his decision to support the filibuster of Gorsuch is significant. If enough senators oppose cloture—which ends debate on the nomination—it would require 60 votes to move forward to a final vote, essentially blocking Gorsuch.

House panel passes bill to remove pre Roe v. Wade law criminalizing abortion

A Democratic-majority House committee voted along party lines Thursday afternoon to remove pre-Roe v. Wade language in state statute that criminalizes abortion practices. The original state law, passed in New Mexico in 1968, makes “criminal abortion” subject to a fourth-degree felony. It defines “criminal abortion” as any action or attempt at an “untimely termination” of a pregnancy that is not “medically justified.” A medically justified abortion, according to state law, is limited to abortions in cases of pregnancy from rape, incest or when the pregnant woman’s life is in danger. The landmark 1972 Roe v. Wade decision, which legalized abortion in most cases across the country, made state laws like this obsolete. Related story: House committee stalls another round of abortion bills

But proponents of the bill to strike the old state statute argue that the state language would go right back into law should the U.S. Supreme Court change Roe v. Wade in the future.