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Oct. 21, 2019
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Legal expert puzzled by lawsuit delay

By Jane Harrison
 
Georgia Gov. Brian Kemp last month poured $8 million more into a water war with Florida in a legal case that appeared stalled as of July 21. The governor’s expenditure from the state’s emergency fund came after more than three months of inactivity on the case docket, which has run cold since March 22. Lack of activity posted on the docket by Special Master Paul J. Kelly, Jr. has puzzled observers of the 2013 lawsuit.
 
“I think Florida and Georgia would be pretty interested in getting this done,” said Lara Fowler, environmental law expert for SCOTUS.blog. The Penn State Law senior lecturer deemed the unprecedented delay in this case “very strange.” Especially unusual is Kelly’s silence after Florida’s March 12 request for oral argument. “Why? What happened?” Fowler wondered. Kelly seemed to be progressing quickly until the docket went blank after a March 22 change of address list.
 
Fowler posited that if the states were headed into drought, they’d be making noise about the wait. Officials from both states have declined comment.
 
Water flow has been abundant on the Chattahoochee River, where lakes Lanier, West Point, and Eufaula are at or slightly above full pool. Lanier is the largest reservoir on the ACF, managed by the U.S. Army Corps of Engineers.
 
However, Lake Seminole, fed by the Chattahoochee and the Flint River near the Florida line, measured half a foot low in mid-July. Flint River flow at Bainbridge, Ga. just north of Lake Seminole, was running about 10 percent lower than its 67-year median daily discharge. Apalachicola River discharge on the northern end and in the Florida Panhandle, where oyster beds await freshwater nutrients, was running about 10 percent low.
 
Fowler offered a couple of speculations about why Kelly, described as a punctual justice with no back log, might have slowed down on this one. She theorized that the legacy of former Special Master Ralph Lancaster, who died in January, lingers on through Kelly’s hiring of legal assistant Joshua Dunlap, who worked alongside Lancaster during his term as special master. Lancaster presided from Oct. 2014 until Kelly’s appointment a year ago. Lancaster ruled against Florida, recommending justices deny Florida’s claims because regardless of Georgia’s water use, the court could do nothing because Corps controls the volume of water that flows downstream. 
 
Kelly, 78, a senior judge with the U.S. 10th District Court of Appeals in Santa Fe, N.M., originally ruled the existing record, consisting of millions of pages of physical and electronic documents, would be sufficient to decide the case. However, he composed a list of questions about the volume of water Florida needs, the cost of cutting Georgia’s water use, and other inquiries regarding conservation, Corps projects, and irrigation. Both states responded, with Florida following up with a request for brief oral arguments. Georgia posted no objections.
 
Fowler noted that after Kelly hired Dunlap early this year, the pace dropped off.  “He was handling it matter-of-factly, moving quickly until Dunlap was hired,” she said. Perhaps it was then that the enormity of the case hit. More than a year before he passed away Lancaster pondered aloud whether he would live to see the case resolved. “It’s a heck of a lot of work to go through the record,” Fowler said.
 
It’s anyone’s guess whether Kelly’s delay might be a tactic to urge settlement. “I don’t know about any settlement discussion,” Fowler said.

Posted online 7/26/19
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