Experts urge caution in taking Colorado River negotiations to Supreme Court

Most who work on the Colorado River concur: A courtroom is the last place decisions about water should be made.

But as total agreement between the Upper and Lower Basin seems more like a pipe dream with each passing month, a court battle has become a possibility while U.S. states, Native American tribes and Mexico chart a path forward as operating guidelines for the river expire in 2026.

It would be an expensive, decadeslong legal fight against the Bureau of Reclamation’s decision that would likely make its way to the Supreme Court. At the annual Colorado River Water Users Association conference in Las Vegas on Wednesday, a panel of legal experts who have worked on interstate water cases spoke about the challenges such a case might bring.

The bottom line: Engineers are far better equipped to solve water issues than judges, and all efforts should be made to keep post-2026 Colorado River negotiations out of the courtroom.

“The court has a limited understanding of technical water cases,” said Jeff Kightlinger, ex-general manager of the Metropolitan Water District of Southern California. “It has a very limited ability to draft nuanced, long-term solutions.”

Some signs point toward court

The breakdown of talks between the Upper and Lower Basin states has centered on whether the Upper Basin states should be required to take cuts to their allocations from the river as climate change reduces water availability.

In November, the Biden administration released a bulleted list of five plans it would consider going forward — none of them being the proposals that the Lower and Upper basins separately filed. Rather, a so-called “Basin Hybrid” plan was included, suggesting that compromise may be necessary.

A spokesman for the Southern Nevada Water Authority, the agency that negotiates Colorado River policy on behalf of Nevada, declined to answer questions about the possibility of a lawsuit or if the state is preparing for one.

Arizona’s river negotiator, however, has publicly signaled that the state is eyeing $1 million in state funds to retain a lawyer if it becomes necessary. But that doesn’t mean leaders are satisfied with that option.

“I do not want litigation. There is uncertainty with litigation,” Arizona Department of Water Resources Director Tom Buschatzke said at a meeting earlier this year. “We see that in other basins, with judges running rivers. It’s not good for anybody.”

Could legal threat stir progress?

As panelists highlighted, history doesn’t look favorably upon states that have decided to elevate their squabbles to the Supreme Court. In most cases, neither party is happy with the outcome, they said.

Michael Connor, former deputy secretary of the Interior Department, said the looming threat of spending time and money for an outcome that is not guaranteed could help negotiations along.

“Litigation is a great motivator for coming to consensus,” he said. “Litigation is just yet another risk to the system.”

A court case won’t necessarily cure a drought that’s been called a crisis, said Tanya Trujillo, deputy state engineer of New Mexico. What’s often missed from conversations about lawsuits is how long they can take: In the interim, while lawyers hash out the case, the same issues will face the Colorado River basin, she said.

“Along that same time frame, the hydrology is shifting, and the operations haven’t ceased,” Trujillo said. “People haven’t stopped planting crops or drinking water in their homes.”

Contact Alan Halaly at ahalaly@reviewjournal.com. Follow @AlanHalaly on X and @alanhalaly.bsky.social on Bluesky.