HomeMy WebLinkAboutResolution 4174-01-2013 A Resolution
NO. 4174-01-2013
AUTHORIZING THE EMPLOYMENT OF MARK T. STANCIL AND THE LAW FIRM
OF ROBBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER & SAUBER LLP,
AS OUTSIDE LEGAL COUNSELTO FILE AN AMICUS CURIAE BRIEF IN THE
CASE OF TARRANT REGIONAL WATER DISTRICT V. HERRMANN,
NO. 11-889, PENDING IN THE U.S. SUPREME COURT
AND AUTHORIZING PAYMENT OF COUNSEL FEES
WHEREAS, The Supreme Court recently granted a petition for writ of certiorari in Tarrant
Regional Water District v. Herrmann, No. 11-889, in which it will decide questions concerning states'
rights under interstate compacts governing water allocation; and
WHEREAS, the Supreme Court's resolution of the case will have important implications for
water management in Texas and nationwide and for the administration of interstate compacts; and
WHEREAS, Oklahoma has adopted a series of laws that effectively prohibit the export of water
from the State, specifically from water in the Red River, Reach II, sub-basin 5 within the State of
Oklahoma; and
WHEREAS, Tarrant Regional Water District ("TRWD") filed a lawsuit against the Oklahoma
Water Resources Board ("OWRB") to challenge those Oklahoma laws, which prevent the OWRB from
issuing a permit for TRWD to access its allocated water; and
WHEREAS, the Federal District Court ruled for Oklahoma and the Court of Appeals for the
Tenth Circuit affirmed. TRWD sought review by the U.S. Supreme Court and that Court asked for the
views of the United States Solicitor General who informed the Supreme Court that the Court of Appeals
has misinterpreted the language of the Compact and that the Supreme Court should review the case to
correct the Court of Appeals' error.
WHEREAS, the Supreme Court has granted TRWD's petition for writ of certiorari on both the
meaning of the Compact and the Commerce Clause issues and TRWD has asked the City of Fort Worth
and various other governmental entities to file amicus curiae briefs in support of its position; and
WHEREAS, because of the extraordinary complexity of this area of law, the City Manager and
the City Attorney recommend that the City retain outside legal counsel with knowledge and expertise in
matters involving water allocation and the Commerce Clause of the U.S. Constitution; and
WHEREAS, Mark T. Stancil and the law firm of Robbins, Russell, Englert, Orseck, Untereiner
& Sauber LLP, possess the required knowledge and expertise concerning states' rights under interstate
compacts governing water allocation and the Commerce Clause of the U.S. Constitution, which
guarantees free trade among States.
ORT WORT
Resolution No. 4174-01-2013
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FORT WORTH, TEXAS, THAT:
1.
The City is authorized to retain Mark T. Stancil and the law firm of Robbins, Russell, Englert,
Orseck, Untereiner & Sauber LLP, as outside legal counsel pursuant to Chapter V1, Section 3, of the
City Charter to represent the City in the above referenced lawsuit, and any other litigation related to the
filing of an amiCLIS curiae brief in the case of Tarrant Regional Water District v. Herrmann, No. 11-889
pending before the U.S. Supreme Court.
The City is hereby authorized to compensate Mark T. Stancil and the law firm of Robbins,
Russell, Englert, Orseck, Untereiner & Sauber LLP, for its representation of the City in this matter in an
amount up to $50,000.00.
Adopted this 29"' day of January, 2013.
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COUNCIL ACTION: Approved"on 1/2912013 - Resolution No. 4174-012013
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DATE: Tuesday, January 29, 2013 REFERENCE NO.: **G-17790
LOG NAME: 12TRWDAMICUSBRIEF
SUBJECT:
Adopt Resolution Authorizing the Employment of Mark T. Stancil and the Law Firm of Robbins, Russell,
Englert, Orseck, Untereiner & Sauber LLP, as Outside Counsel to Assist the City in Filing an Amicus
Curiae Brief in the Case of Tarrant Regional Water District v. Herrmann, No. 11-889 Pending in the U.S.
Supreme Court and Authorizing Payment of Counsel Fees in a Total Amount Up to $50,000.00 (ALL
COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the City Manager to retain Mark T. Stancil and the law firm of Robbins, Russell, Englert,
Orseck, Untereiner & Sauber LLP, of Washington, D.C. as outside counsel, pursuant to Chapter VI,
Section 3, of the City Charter, to represent the City in filing an amicus curiae brief in the case of Tarrant
Regional Water District v. Herrmann, No. 11-889, pending in the U.S. Supreme Court; and
2. Adopt the attached resolution fixing in advance, as far as practicable, the amount to be paid to Mark T.
Stancil and the law firm of Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, in an amount not
to exceed $50,000.00.
DISCUSSION:
The Supreme Court recently granted a petition for writ of certiorari in Tarrant Regional Water District v.
Herrmann, No. 11-889, in which it will decide questions concerning states' rights under interstate
compacts governing water allocation. The Supreme Court's resolution of the case will have important
implications for water management in Texas and nationwide and for the administration of interstate
compacts.
Tarrant Regional Water District (TRWD) seeks to acquire water inside Oklahoma by exercising Texas'
rights under the Red River Compact, which governs the allocation of water from the Red River Basin
among Texas, Oklahoma, Louisiana, and Arkansas. In particular, TRWD plans to draw water from Reach
Il, Sub-basin 5, which is defined by the Compact to encompass parts of Oklahoma, Texas, and
Arkansas. The Compact explicitly allocates "equal rights" to the water in that sub-basin to the four
signatory States, entitling each to up to a 25 per cent share. TRWD seeks to draw its allocated share of
water from the Kiamichi River in Oklahoma before it flows into the Red River (at which it becomes too
saline to be potable). In terms of project cost and environmental impact, this plan is far preferable to
alternatives of seeking water far to the east and south in Texas as the next source of water for the region.
Oklahoma has adopted a series of laws that effectively prohibit the export of water from the State. TRWD
filed a lawsuit against the Oklahoma Water Resources Board (OWRB) to challenge those Oklahoma laws,
which prevent the OWRB from issuing a permit for TRWD to access its allocated water. Tarrant argued,
first, that the allocation of water by the Red River Compact preempts Oklahoma's contrary laws and
Logname: 12TRWDAMICUSBRIEF Page 1 of 2
requires that Texas be able to obtain its "equal rights" to water in Reach 11, sub-basin 5 within
Oklahoma. It argued, second, that Oklahoma's protectionist statutes restrict interstate commerce in water
and thereby, violate the Commerce Clause of the U.S. Constitution, which guarantees free trade among
States.
The Federal District Court ruled for Oklahoma, and the Court of Appeals for the Tenth Circuit
affirmed. TRWD sought review by the U.S. Supreme Court, and that Court asked for the views of the
United States Solicitor General who informed the Supreme Court that the Court of Appeals has
misinterpreted the language of the Compact and that the Supreme Court should review the case to correct
the Court of Appeals' error. The Supreme Court then granted TRWD's petition for writ of certiorari on both
the meaning of the Compact and the Commerce Clause issues.
TRWD will argue to the Supreme Court that the Red River Compact plainly allocates to Texas equal rights
to water in Reach 11, sub-basin 5, which Texas can access only inside Oklahoma, and that the terms of the
Compact trump contrary Oklahoma laws designed to prevent water exports to Texas. TRWD will also
argue that boilerplate language in the Red River Compact intended to preserve State water laws that do
not conflict with the Compact—language that appears in many other Compacts nationwide-does not
authorize protectionist State laws that do conflict with the Compact's allocation of water. These issues of
Compact interpretation and interstate water access are of critical importance. The erroneous decisions of
the lower courts, if not corrected, threaten to wreak havoc with carefully negotiated Compacts allocating
water throughout the country. The Court will benefit from hearing the views of interested organizations
about how best to resolve the issues presented.
The parties are now briefing the case and have requested that the City file an amicus curiae brief in
support of TRWD's position, due on February 25, 2013. The Court will hear argument in April and decide
the case by late June. The City Manager and the City Attorney recommend, due to the potential shortage
of water given projected population growth in the Dallas-Fort Worth Metroplex, that the City of Fort Worth
submit an amicus curiae brief. Due to the complexity of Federal law and the appearance before the U.S
Supreme Court, it is recommended that the City hire Mark T. Stancil and the law firm of Robbins, Russell,
Englert, Orseck, Untereiner & Sauber LLP, of Washington D.C., to prepare the amicus curiae brief on
behalf of the City of Fort Worth.
FISCAL INFORMATION CERTIFICATION:
The Financial Management Services Director certifies that funds are available in the current operating
budget of the water and sewer operating fund, as appropriated.
FUND CENTERS:
TO Fund/Account/Centers FROM Fund/Account/Centers
PE45 531200 0601000 $50,000.00
CERTIFICATIONS:
Submitted for City Manager's Office by: Fernando Costa (6122)
Originating Department Head: Sarah Fullenwider (7606)
Gerald Pruitt (7616)
Additional Information Contact: Frank Crumb (8246)
Lognarne: 12TRWDAMICUSBRIEF Page 2 of 2