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.
To contact the reporter on this story: Lars-Eric Hedberg in Washington at email@example.com
To contact the editor responsible for this story: Larry Pearl at firstname.lastname@example.org
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)