ELR Citation: ELR 20755
No(s). 80-730 HB (D.N.M. Jan 17, 1983)

The court rules that provisions in the New Mexico Constitution and statutory law barring export of New Mexico groundwater violate the Commerce Clause. First, the court dismisses jurisdictional defenses to the suit based on standing, justiciable controversy, the Eleventh Amendment, and joinder of indispensable parties. Then, the court rejects defendants' and intervenors' arguments that the Rio Grande River Compact governs the dispute. Turning to the constitutional issues, the court holds that water regulations are subject to the Commerce Clause. The court holds that New Mexico's embargo violates the Commerce Clause because it is facially discriminatory against interstate commerce but not narrowly tailored to serve the legitimate local purpose of conserving water for New Mexico citizens. While a state may regulate its water resources and may require out-of-state users to comply with state laws, a state may restrict export of water only to the extent necessary to protect human survival. Any further restrictions only serve to protect the state's economic interests and cannot stand up to a Commerce Clause challenge.

Counsel for Plaintiffs
Harry M. Reasoner, Charles L. Berry, P. M. Schenkkan, Jeffrey Civins, Charles W. Schwartz
Vinson & Elkins
First City Tower, Houston TX 77002
(713) 651-2222

Harold L. Hensley Jr., K. Douglas Perrin
Hinkle, Cox, Eaton, Coffield & Hensley
P.O. Box 10, Roswell NM 88201
(505) 622-6510

Counsel for Defendants
Stephen D. Dillon, Jeffrey L. Fornaciari, Richard A. Simms, Douglas Meiklejohn, Ass't Attorneys General
Division of Water Resources
Department of Natural Resources, Bataan Memorial Bldg., Sante Fe NM 87503
(505) 827-2127