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Dec. 11, 2017
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Supreme Court to hear water dispute case January 8

By Jane Harrison
 
U.S. Supreme Court justices will hear oral arguments Jan. 8 in the long-running dispute between Florida and Georgia over water in the river system that includes Lake Lanier. Justices will listen to and question objections Florida raised to a Special Master’s report that denied Florida’s requests in a 2013 lawsuit.
 
After more than two years of pre-trial discovery and a lengthy evidentiary hearing, Supreme Court appointee Ralph Lancaster recommended last February that justices deny Florida’s request to limit Georgia’s water consumption and pay reparation for alleged environmental and ecological harm to Florida’s water interests downstream. The federal court invests a lot of credibility in Special Masters’ findings and often concurs with them. However, exceptions are granted, as has been the case in at least one other case Lancaster worked on for the court.
 
Georgia officials rejoiced after Lancaster’s report, while Florida attorneys filed exceptions, including an assertion that the Special Master erred in his statement that the U.S. Army Corps of Engineers’ discretion in operating its dams on the rivers prevents a remedy to Florida’s water woes. Lancaster wrote that since Florida did not include the Corps in the lawsuit, the federal agency could not be bound to allow more water flow into Florida, even if a court order limited Georgia’s water consumption and resulted in more water to send downstream.
 
However, Florida attorneys pointed to a section of the Corps’ recent operation manual for the river system that stated it would take any legal, congressional, or states’ agreements on water allocation into account and possibly adjust its water operations. The U.S. Justice Department’s amicus brief filed Aug. 8 on the Corps’ behalf took exception to Lancaster’s finding and noted that the Corps could potentially change operations on the river system after a lengthy public hearing process and environmental review.
 
In the Jan. 8 hearing, Florida attorneys will plea for what they have called the Apalachicola region’s last chance for survival. The lawsuit alleges Georgia hoards water on the river system and harms Apalachicola Bay’s oyster fisheries, which need fresh water to produce. Georgia officials and Lake Lanier advocates claim the Sunshine State’s desire to cap Georgia’s water use would thwart economic development and threaten the lake’s water level. Lake Lanier is the largest reservoir on the river system that reaches from the Georgia mountains to the Florida Panhandle.
 
The Supreme Court is expected to make relatively quick work of the case that has taken years to make it to their courtroom. According to SCOTUSblog.com, the official online Supreme Court blog site, the court usually allots “one hour of argument time for each case, with each side speaking for 30 minutes.”
 
Since the Solicitor General requested and was granted time to speak regarding Florida’s exceptions, he or another lawyer from his office, will get 10 minutes to talk.
 
Justices frequently ask questions or request elaborations during oral arguments. Much of the hearing time is actually dominated by responses to justices’ inquiries. Attorneys generally reserve time from their presentation to rebut arguments from the opposing side.
 
Justices generally hold a private conference later in the hearing week to vote on how to decide the case. The senior justice in the majority appoints a justice to write the majority opinion; the minority opinion is composed by the senior justice voting on the minority side.
 
Justices writing opinions then share written opinions among themselves, summarizing their reasons. The length of time it takes to finalize an opinion “depends on several factors, including how divided the justices are, which justice is writing the opinion, and the court’s schedule,” according to the overview. “Typically, all cases are decided by the time the court recesses for the summer at the end of June or the beginning of July.” Decisions are announced in open court.
 
Justices will get an earful of water arguments Jan. 8. Before they commence hearing Florida and Georgia’s dispute, they will listen to the Justice Department’s exceptions to a special master’s ruling in a Texas Vs. New Mexico and Colorado lawsuit regarding a water compact between the states.
 
Georgia and Florida have each spent more than $40 million in the legal action. Both will rely on the same Washington, D.C. based attorneys they employed during the preliminary period. Craig Primis, of Kirkland & Ellis, will argue Georgia’s case. His presentation during the evidentiary hearing earned him “Litigator of the Week” in February from the National Law Journal, which declared him as “winning the water war.”
 
Former U.S. Solicitor General from 2008-2009, Gregory G. Garre, will open the hearing with Florida’s arguments. It will be his 42nd time to take the floor before Supreme Court justices, according to the Lathem & Watkins law firm, where he is a partner.
 
Officials from numerous states warring over water rights likely will be paying attention to how the court rules in both cases this session. Numbered number 141 and 142 respectively, the lawsuits from the Southwest and Deep South represent the 141st and 142nd state water disputes the federal court has ever granted hearings.

Posted online 12/1/17
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