Environmental & Land Use

Water Rights

 

State of Florida vs. State of Georgia

US Supreme Court Case No. 22O142 ORG

In October 2013, the State of Florida filed a Motion for Leave to File a Complaint, invoking the Supreme Court’s original jurisdiction, asking the Court to equitably apportion the waters of the Apalachicola-Chattachoochee-Flint River Basin. This action includes all waters hydrologically connected to the Chattachoochee and Flint Rivers (including, without limitation, groundwater, rivers, streams, crreks, draws, and drainages). Essentially, Florida argues that the water storage and consumption in GA also affects how water is released to FL from the federal reservoirs. The Corps of Engineers determines how much water to release from its reservoirs based, in part, upon calculated inflows to the ACF Basin. GA’s storage and comumption reduces those inflows. As a result, as GA’s uses increase, the calculated inflows to the ACF Basin decline, and even less water is released from the Corps’ reservoirs. The net result of GA’s unmitigated water use is that less water reaches FL due to both the hydrologic depletions and the Corps’ operational protocol. Florida seeks relief in the form of a court order, prohibiting Georgia from interfering with Florida’s water rights, and capping Georgia’s overall water uses at the level then existing on January 3, 1992.

Georgia’s response raised three main arguments against Florida’s claim for original jurisdiction: (1) that Georgia is not the correct party to file suit against, (2) that this is not a case for which the Supreme Court has original jurisdiction, and (3) that the timing is early for such action. Georgia does not consider itself a defendant party in this action; Georgia instead points to the Corps of Engineers as the key actor in operations of the ACF Basin, i.e. the flow of water. Moreover, because there can be no possible determination of injury until after the Corps adopts a new Master Manual, Georgia contends that Florida cannot bring any such action against them until after an injury occurs that is directly related to Georgia’s water use.

Finally, Georgia argues that Florida cannot persuasively allege that it suffered from a “substantial injury” via clear and convincing evidence because one of Florida’s main arguments (that the flow from the Woodruff Dam has harmed the Apalachicola oyster fisheries) cannot be plausibly linked to any action by Georgia. Georgia alleges that Florida has not shown any facts that can reasonably connect the Florida’s injuries to Georgia’s consumption of water and that therefore the Supreme Court is not the correct forum for Florida’s common-law claim against Georgia.

The Court has appointed a special master to order certain pleadings, take testimony, and issue a report to the Court. In early 2015, briefs were still being filed.

 

Regulation of State Lands

 

Sturgeon v. Masica

No. 14-1209, Cert. Granted October 1, 2015

Appeal of 768 F.3d 1066 (9th Cir. 2014)

This matter is on appeal from the Ninth Circuit wherein the Court ruled in favor of the U.S. government and against an Alaskan moose hunter, John Sturgeon, who objected to the U.S. government, via the National Park Service, telling him that he could not ride his hovercraft on hunting trips on the Nation River, part of which falls within the Yukon-Charley Rivers National Preserve (federally owned preserve).

The State of Alaska intervened in this matter, challenging the National Park Service’s authority to require its researchers to obtain a permit before engaging in studies of chum and sockeye salmon on the Alagnak River, part of which falls within the boundaries of the Katmai National Park and Preserve.

The State of Alaska and Sturgeon presented the same legal argument to the Ninth Circuit and now the U.S. Supreme Court: whether §103(c) of the Alaska National Interest Lands Conservation Act precludes the National Park Service from regulating activities on state-owned lads and navigable waters that fall within the boundaries of National Park System parts in Alaska.

The Ninth Circuit affirmed the lower court’s granting of summary judgment in favor of the U.S. Government and vacated the judgment against the State of Alaska due to its lack of standing. Sturgeon appealed to the U.S. Supreme Court and certiorari was granted on October 1, 2015. Briefs have been filed and oral argument was held on January 20, 2016.

On March 22, 2016, the Supreme Court held, that the Ninth Circuit's interpretation of Section 103(c) of the Alaska National Interest Lands Conservation Act, which addresses the scope of the National Park Service’s authority over lands within the boundaries of conservation system units in Alaska, to ban hovercrafts on state-owned waters flowing through federally managed preservation areas, is inconsistent with both the act’s text and context.  The case was remanded back to the Ninth Circuit.