January 4, 2013

Today the Supreme Court granted certiorari in one case of interest to the business community:

• Interstate Compacts—Commerce Clause—Water Rights

Interstate Compacts—Commerce Clause—Water Rights

Today, the Supreme Court granted certiorari in Tarrant Regional Water District v. Herrmann, No. 11-889, a case that concerns a state’s water rights under an interstate compact governing water allocation. The Supreme Court’s decision will have important implications for both water management and the administration of interstate compacts.

Texas’ Tarrant Regional Water District sought to acquire water from Oklahoma by exercising its rights under the Red River Compact, which governs the allocation and use of water from the Red River Basin among Texas, Oklahoma, Louisiana, and Arkansas. Oklahoma has laws that prohibit the export of water from the state. Tarrant filed a lawsuit against nine members of the Oklahoma Water Resources Board to challenge those Oklahoma laws, asserting that Congress’s approval of the Red River Compact preempts Oklahoma’s contrary laws and that Oklahoma’s statutes restrict interstate commerce in water and thereby violate the dormant Commerce Clause. The district court granted summary judgment in favor of Oklahoma on both grounds, and the Tenth Circuit affirmed.

On the Supremacy Clause claim, the Tenth Circuit applied the presumption against preemption, which it called “particularly strong in this case,” to conclude that the Red River Compact does not conflict with the Oklahoma laws. On the dormant Commerce Clause issue, the Tenth Circuit held that the language of the Red River Compact provides the “unmistakably clear” statement of congressional intent required by Supreme Court precedent to authorize state interference with interstate commerce.

The Supreme Court granted certiorari to determine (1) whether the Red River Compact preempts the Oklahoma laws, and (2) whether Congress’ approval of the Red River Compact, which uses language present in almost all interstate water compacts, manifests “unmistakably clear” Congressional consent to the Oklahoma laws.

Mayer Brown represents the petitioner in this case. Absent extensions, amicus briefs in support of the petitioner will be due on February 25, 2013, and amicus briefs in support of the respondents will be due on March 3, 2013. Any questions about the case should be directed to Charles Rothfeld (+1 202 263 3233) in our Washington DC office or Tim Bishop (+1 312 701 7829) in our Chicago office.

The Supreme Court also granted review today in a non-business case, Adoptive Couple v. Baby Girl, No. 12-399, in which one of the respondents is represented by Mayer Brown LLP in conjunction with the Yale Law School Supreme Court Clinic (which is taught by members of Mayer Brown’s Supreme Court and Appellate Practice). The case will address the application of the Indian Child Welfare Act of 1978 to certain child-custody determinations.

Mayer Brown's Supreme Court & Appellate practice ordinarily distributes a Docket Report when the Supreme Court grants certiorari in a case of interest to the business community and a Docket Report-Decision Alert when the Court decides such a case. We hope that you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Richard B. Katskee, their general editor, at rkatskee@mayerbrown.com or +1 202 263 3222).

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Mayer Brown's Supreme Court & Appellate practice distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community and distributes a Docket Report-Decision Alert whenever the Court decides such a case. We hope you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Andrew Tauber, their general editor, at atauber@mayerbrown.com or +1 202 263 3324).

Mayer Brown Supreme Court Docket Reports provide information and comments on legal issues and developments of interest to our clients and friends. They are not a comprehensive treatment of the subject matter covered and are not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed.