U.S. Supreme Court: Equitable Apportionment

Posted in: Natural Resources

In October 2013, Florida asked the U.S. Supreme Court for permission to sue Georgia for an “equitable apportionment” of the waters of the ACF Basin. This type of case—where one state is directly suing another state—can only be heard in the U.S. Supreme Court.

An equitable apportionment action is very different from other litigation surrounding Lake Lanier. Each of the other cases have been brought against the federal agencies (e.g., the U.S. Army Corps of Engineers, U.S. Fish & Wildlife Service), and focused on particular aspects of the Corps’ operation of the ACF Basin reservoirs—for example, its compliance with environmental laws like NEPA or the Endangered Species Act, or the Corps’ legal authority to meet metro Atlanta’s water supply needs from Lake Lanier and the Chattahoochee River.

An equitable apportionment action, in contrast, asks the U.S. Supreme Court to issue a decree stating how much water each State can use. In essence, Florida has asked the Court to divide the waters of the ACF Basin between the two states.

Florida’s lawsuit against Georgia requests a decree restricting Georgia’s consumptive water use to levels that existed in 1992. According to Florida, this restriction is necessary because Georgia’s use of water from the basin has harmed environmental interests in the Apalachicola River and Bay. Florida claims Georgia’s water use has increased salinities in Apalachicola Bay, which in turn has caused the bay’s oyster fishery to collapse. For its part, Georgia denies that its water use has harmed Florida, explaining that its current and projected future water use will have only “a minor impact on the flow in the Apalachicola River at the state line,” and that the collapse of the Apalachicola Bay oyster fishery is the result of environmental factors and mismanagement by the State of Florida.

Florida must prove by “clear and convincing evidence” that Georgia’s use causes “real or substantial injury or damage” to its “substantial interests,” including the oyster fishery in Apalachicola Bay. If Florida can make this case, then the Court must decide whether the nature and magnitude of Florida’s claimed injuries are sufficient to justify impacts that would result from the reductions Florida seeks.

The U.S. Supreme Court granted Florida’s request to file suit against Georgia in November 2014. The Court appointed a private attorney in Maine named Ralph Lancaster, Jr. to serve as “Special Master” to oversee the litigation and make a recommendation about how the Court should decide the case.

The Special Master held a lengthy hearing in the case in late 2016. Following this, in February 2017, the Special Master issued a report recommending that the Supreme Court deny Florida’s request for relief.

The Special Master’s report is only a recommendation and it is not legally binding itself. The Supreme Court therefore can adopt the Special Mater’s recommendation, or it can resolve the case in a manner different from the Special Master’s recommendation. The Special Master’s report is still very significant, however, as it will inform the Court’s view of the evidence presented at trial and provide the Special Master’s recommendation about how the law should be applied in this case.

After the Special Master’s report was provided to the Supreme Court, the States were given an opportunity to file “exceptions” to the report with the Court, explaining their views regarding the Special Master’s recommendation. Other parties, including the United States, the State of Colorado, and ARC, also filed “friend of the court” briefs supporting the State of Georgia. The Supreme Court will consider the exceptions and other briefs, and hold oral argument in the case in January 2018, before making its final decision.

The case is Florida v. Georgia, No. 142 Original. The Supreme Court’s docket can be accessed here, while filings in the Special Master’s proceeding are available here.

A timeline of significant events in the Supreme Court litigation:

 

October 2013  

Florida submits a request to the U.S. Supreme Court for permission to file a lawsuit against Georgia requesting an “equitable apportionment” of the waters of the ACF Basin. An equitable apportionment is a decree stating how much water each State can use. Florida’s lawsuit can only proceed if the Court agrees to hear the case.

November 2014 

The Supreme Court grants Florida’s motion to file its case against Georgia. The Court appoints a Special Master (Maine Attorney Ralph Lancaster, Jr.) to oversee the case.

November 2015 

All written discovery is completed.

July 2016 

All depositions, including expert depositions, are completed.

September 2016  

The Special Master grants requests by the Atlanta Regional Commission and other entities to file amicus curiae (“friend of the court”) briefs. All amicus briefs must be filed by October 21, 2016. 

October 12, 2016  

The States file pretrial briefs identifying the major claims and issues to be resolved at trial.

October 14, 2016

Florida files written testimony for its witnesses.

October 26, 2016

Georgia files written testimony for its witnesses.

October 31, 2016

Trial begins before the Special Master in Portland, Maine.

December 2, 2016

The trial before the Special Master concludes. The Special Master sets a schedule, directing the states to file post-trial briefs two weeks after the conclusion of trial. The states are also directed to file an additional round of responsive briefs two weeks later.

December 15, 2016

Georgia and Florida file post-trial briefs with the Special Master. Download the states’ post-trial briefs here: Georgia and Florida.

December 29, 2016

Georgia and Florida file responsive post-trial briefs with the Special Master. Download the states’ response briefs here: Georgia and Florida.

January 3, 2017

The Special Master enters an order directing the states to engage in further mediation in an effort to reach a settlement. The Special Master directs the states to file a confidential report by January 26, 2017 describing their efforts to reach an agreement.

February 14, 2017 

The Special Master issues his report. He recommends that the Supreme Court deny Florida’s request for relief because Florida has not proven by clear and convincing evidence that any injury could be remedied without the US Army Corps of Engineers as a party to the case.

 

March 20, 2017

The Supreme Court issues an order setting a briefing schedule for the case.

April 7, 2017

Florida’s request for an extension of time was granted as follows: Exceptions to the Special Masters Report are due on or before May 31, 2017; Replies are due on or before July 31, 2017; Sur-replies are due on or before August 30, 2017.

May 31, 2017

The State of Florida files its exceptions to the Special Master’s Report.

July 31, 2017

The State of Georgia files its “reply” to Florida’s exceptions.

August 7, 2017

The United States, the State of Colorado, and ARC and other Metro Atlanta water providers file amicus curiae (or “friend of the court”) briefs supporting Georgia.

November 6, 2017

The Supreme Court grants the United States’ request to participate in oral argument.

January 8, 2018

The Supreme Court held oral argument. A decision is expected by the end of June 2018.

Page last updated on May 18, 2018