U.S. Supreme Court: Equitable Apportionment

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 the all of the prior litigation surrounding Lake Lanier. Each of the prior cases was 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 increased use has increased salinities in Apalachicola Bay, which in turn has caused the bay’s oyster fishery to collapse. For its part, Georgia has denied 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 will have to 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 has appointed a private attorney in Maine named Ralph Lancaster, Jr. to serve as “Special Master” to oversee the litigation. The filings in the case are available on the Special Master’s docket in Florida v Georgia. A decision by the Special Master is expected in 2017.

A timeline of significant events in the Supreme Court litigation is below:

  • 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 lawsuit.

    The Special Master’s report is not legally binding itself—the Supreme Court can adopt the Special Mater’s recommendation and rule accordingly, 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.

    The States will have an opportunity to file “exceptions” to the report with the Supreme Court, explaining their views regarding the Special Master’s recommendation. The States’ exceptions will be considered by the Supreme Court prior to making its decision. The Supreme Court is expected to schedule oral argument on the case after the exceptions have been filed. 
  • March 20, 2017
    The Supreme Court issues an order setting a briefing schedule for the case. Exceptions to the Special Master’s report are due May 4, 2017. Responses (known as “replies”) are due on Monday, June 5, 2017. Final briefs (known as “sur-replies”) are due Wednesday, July 5, 2017.

     
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