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Jan. 26, 2020
4:12 pm


Oral argument in water lawsuit set for next month

By Jane Harrison
The special master overseeing the Florida versus Georgia legal battle over water wants to hear states’ attorneys final arguments next month. In a surprise order, Special Master Paul J. Kelly moved the date two months earlier than the December showdown he initially ordered. On Aug. 29, he set the date for Oct. 17 in New Mexico. A month earlier, he had granted Florida’s request for oral argument and planned the face-off for Dec. 16. 
The sudden fast forward in the case came after a four-month delay in responding to Florida’s request for face-to-face arguments between water war parties. The wait did not surprise some followers of Fla. V. Ga. No. 142 Original. Wading through the tremendous volume of evidence submitted since Florida filed suit in 2013 would require months of review, especially for one whose decisions will impact long term relationships between states, say water law experts familiar with the case. They expect the special master to seek answers to specific questions during oral argument Oct. 17 and possibly render his report within months.
On July 29, Kelly granted Florida’s March 22 request to plead its case before he makes recommendations to the Supreme Court. Oral argument is set to commence at 10 a.m. in a courtroom in Albuquerque, N.M, about an hour’s drive from the federal courtroom where Kelly serves as a senior judge in the U.S. 10th Circuit Court of Appeals. Kelly allotted each party 45 minutes, with Florida permitted extra time for rebuttal.
Florida seeks federal apportionment of water in the Apalachicola, Chattahoochee, Flint river basin. It also aims to limit Georgia water consumption. The complaint alleges that Georgia hoards water on the Chattahoochee and Flint and causes ecological and environmental harm across the state line. Lake Lanier is the largest reservoir on the rivers regulated by U.S. Army Corps dams.
Kelly’s delay in responding to Florida’s request “frankly doesn’t surprise me, particularly,” said attorney John B. Draper, who for 36 years has represented states in environmental disputes. The Santa Fe lawyer has an office across the street from Kelly’s and knew Ralph Lancaster, Jr., the initial special master in Fla. V. Ga.
“There’s a pretty big record to deal with and make decisions on,” Draper said. “Even for an experienced judge like Judge Kelly, there’s a lot to go through even to determine if he needs oral argument.” Draper’s experience with special masters and Supreme Court cases includes more than 300 trail days, mostly accrued in Kansas V. Colorado, a 22-year legal battle over water in the Arkansas River with roots near the turn of the 20th century.
“(Kelly) has obviously decided having access to the attorneys would be helpful, probably pertaining to some specific questions for each side to be sure he’s understanding their positions correctly,” Draper said. Special masters “are a special breed” in U.S. legal history, he said. The Supreme Court is responsible for deciding facts in disputes between states. Since the early 20th century, special masters have acted like trial judges, making recommendations on how justices might rule. In Fla.-Ga., the former special master held a 5-week trail in a Portland, Maine courtroom before giving justices his opinion.
The court remanded Lancaster’s Feb. 2017 recommendations and appointed Kelly in Aug. 2018. Lancaster had denied Florida’s claims based on his assertion that regardless of court action, the Corps controls water flow between the states. The Florida suit did not target the Corps.
Draper noted the remand decision was a close majority, 5-4. The majority stated that Lancaster used “too strict a standard” for Florida to prove its case. During the court hearing, several justices voiced concern about Florida’s woes. Draper speculated that the fact that the court took the case to begin with and later remanded it might expose a court desire “to provide a remedy for Florida, if one is justified.”  
“(Justices) want to make sure they have a very thorough consideration of the case,” Draper said. “They want a full record before they rule on what will set up a relationship for many years.” He added that rather than leave water decisions up to “nine judges who have no experience whatsoever in water matters,” many states rely on interstate compacts or “treaties” approved by Congress. In the Sunshine/Peach State dispute, the states attempted a compact many years ago but could not reach agreement.
Chris Manganiello, Chattahoochee Riverkeeper Water Policy Director, pointed out that Florida, in its December post-remand brief, referenced a proposed agreement composed by the independent ACF Stakeholders, which in 2015 published a Sustainable Water Maintenance Plan outlining potential solutions. In that brief, Florida also tweaked its original demand to cap Georgia’s water at 1992 levels, revising its request for a limit at current levels until 2050.
“It seems Florida realized what it was asking is not attainable, not justified by evidence,” Manganiello said. Florida’s change presents Kelly with more factors to ponder. He speculated that Kelly already has “recommendations in his head, but wants to give both parties one more chance” in oral argument.
CRK legal counsel Kevin Jeselnik agreed. “I think (Kelly) is formulating it as we speak and will dial it in” at oral arguments. Both CRK officials predicted Kelly’s report by late winter or early spring.

Posted online 8.29.19; Updated 9.3.19
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