June 29 — Mississippi can proceed with its complaint against Tennessee alleging that groundwater pumping by Memphis Light, Gas & Water Division from the Memphis Sand Aquifer has caused water to flow from Mississippi into the Volunteer State, the U.S. Supreme Court said in a June 29 order.
Mississippi seeks more than $615 million in natural resources damages from its neighbor rather than an equitable apportionment of aquifer water because the groundwater at issue “is not a shared resource.”
The groundwater, according to Mississippi, naturally accumulated within Mississippi before the formation of the states and would never naturally have moved into Tennessee but for the pumping.
There is no compact governing the states' use of the aquifer, which underlies parts of both states and Arkansas.
In its order, the court also directed Tennessee to file its answer by June 29.
The Supreme Court typically appoints a special master to conduct proceedings in interstate water disputes.
“The state of Tennessee's position is that the Memphis Sand/Sparta Aquifer is an interstate water source to be shared by Tennessee, Mississippi and multiple other states in the region,” Harlow Sumerford, communications director for Tennessee's Attorney General's Office, told Bloomberg BNA in a June 29 e-mail. “We look forward to defending our position through the normal legal process.”
Both Tennessee and the U.S. had urged the Supreme Court to deny Mississippi's motion for leave to file its complaint.
The U.S. wrote in its May 12 amicus brief that the court shouldn't exercise its exclusive original jurisdiction because “Mississippi cannot claim that Tennessee is taking Mississippi’s water until the Aquifer has been apportioned, and Mississippi expressly does not seek an equitable apportionment here.”
The U.S. reasoned that there is no way for the court to determine whether groundwater pumping in Tennessee is causing injury to Mississippi because the court hasn't apportioned aquifer water.
Tennessee argued that issue preclusion, also called collateral estoppel, bars Mississippi from asserting its property rights claim because the courts have already ruled that equitable apportionment is the correct claim for Mississippi here. In its September 2015 brief in opposition, Tennessee said the court should deny the motion to file the complaint because Mississippi has failed to show that it has been injured by Memphis's groundwater pumping.
Mississippi alleged in a 2005 lawsuit against Memphis that water withdrawals from the aquifer by the city and its utility violated and diminished the rights and interests of Mississippi and its residents to its groundwater. It filed tort claims and sought injunctive and declaratory relief, as well as compensatory damages.
The U.S. District Court for the Northern District of Tennessee granted Memphis's motion to dismiss on the grounds that Tennessee should be a party to the suit under Rule 19 of the Federal Rules of Civil Procedure.
Because the Supreme Court exercises original jurisdiction over cases between two states, the district court found that the high court should hear the case instead (Hood ex rel. Mississippi v. City of Memphis, 533 F. Supp. 2d 646, 2008 BL 77084 (N.D. Miss. 2008)).
The U.S. Court of Appeals for the Fifth Circuit concluded that Mississippi must file an equitable apportionment action in the Supreme Court and affirmed the lower court (Hood ex rel. Miss. v. City of Memphis, 570 F.3d 625, 2009 BL 122204 (5th Cir. 2009)).
Mississippi filed a petition in the Supreme Court for argument on the Fifth Circuit's decision. It also moved for leave to file an original action, alleging that Memphis's groundwater pumping amounted to a taking or conversion of Mississippi's resources and wrote that an equitable apportionment was only appropriate if the court determined that Mississippi doesn't own its groundwater resources.
The court denied the motion and petition in January 2010.
C. Michael Ellingburg Sr. of Daniel Coker Horton & Bell PA in Jackson, Miss., is counsel of record for Mississippi.
David C. Frederick of Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC in Washington, D.C., is counsel of record for Tennessee.
Leo M. Bearman of Baker, Donelson, Bearman, Caldwell & Berkowitz PC in Memphis, Tenn., is counsel of record for Memphis Light, Gas & Water.
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