One clarification: when I mentioned that a trial was set for 31 October 2016, that referred to the Georgia v. Florida water case. I did not see the original written message from Bennett Bearden. I apologize for misleading my viewers.
In a few days I will post answers to some unanswered questions received at the end of the webinar.
Click here for the recording. Sorry for the minute or two of confusion and the beginning - the Internet connection was lost for a while and we were scrambling to get going.
Here is the PowerPoint: Download MS_MEM_campana_awra_16august2016
The PDF: Download MS_MEM_Campana_AWRA_16August2016
John Wells pointed out that the Constitution's Commerce Clause might be relevant, and John is correct. The clause gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” If something is declared an 'article of commerce' then the states may be limited in trying to regulate its export or import. In the famous Sporhase v. Nebraska case SCOTUS field that water is an rtcile of commerce. I posted on this case in April 2016 [click here]. SCOTUS found for irrigator Joy Sporhase in 1982 when he used water from a Nebraska well on his land to irrigate land he also owned in Colorado. Here is what I said:
The case is significant because it: 1) established water as an article of interstate commerce whose export a state could not prohibit altogether; 2) set forth a national policy governing interstate groundwater allocation; and 3) asserted that state 'ownership' of water resources is a 'legal fiction'.
Update from Gabriel Eckstein, received on 16 August 2016, just after the webinar concluded:
Just found out that on 12 August, the Special Master [SM; Hon. Eugene Siler] decided to deny the Defendants’ [Memphis and Tennessee] motion to: (1) dismiss the case and (2) hold an evidentiary hearing “on the limited issue of whether the water that is at issue in this case is interstate in nature.”
On the denial, the SM stated that “the complaint appears to fail to plausibly allege that the Sparta Sand [aka Memphis Sand] aquifer (“Aquifer”) or the water in it is not an interstate resource.” That is why he proposed the evidentiary hearing on that limited issue.
The SM also requested the parties to decide whether they would prefer that he submit his memorandum (in which he recommends denying the Defendant’s motion to dismiss) to the Supreme Court as an “Interim Order” for the Court’s immediate review, or whether they prefer to hold the evidentiary hearing first, and then submit a report to the Court on the findings of the hearing. The parties have 14 days (until August 28) to respond to the SM’s request.
Some interesting statements from the SM’s memorandum:
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When discussing the absence of precedence for applying equitable apportionment to ground water resources: “… the mere fact that the subject water is contained underground rather than on the surface does not appear to have a meaningful impact on whether an equitable apportionment is required.”
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On Mississippi’s argument that the “equal footing” doctrine endowed the state with full sovereignty to govern all aspects of its territory, the SM stated that Mississippi’s discussion “does not appear to show that the doctrine applies to disputes concerning a State’s pumping from an interstate resource.”
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With regard to Mississippi’s state law-based arguments (trespass, conversion, intentional tortious conduct, and restitution,” the SM stated that “its arguments are unpersuasive.” The SM stated bluntly that “the Supreme Court has stated that equitable apportionment is the federal common-law principle that applies to disputes over interstate waters.” Hence, “the threshold question is whether the water at issue is interstate in nature.”
It's really a shame that this has to be solved through litigation. However it is resolved, I hope sound science is involved. Can't be to sure of that whenever the courts get in the way.
What can I say? Stay tuned!
"The greatest and most important problems of life are fundamentally unsolvable. They can never be solved, but only outgrown." - Carl Jung
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