H\n@b"7HDbb[,xAT$qt8\}}1^XGwkzz\axNN}VU.n^MYmlvgkv6%v+jxJKtetIk}}n1_};*kZekoeS0fU\xjQ#__K yE~g~G#k77d. In Sporhase v. Nebraska, 458 U.S. 941, 953-954 (1982), the Supreme Court applied the dormant Commerce Clause in holding that groundwater is an article of interstate commerce, and thus Nebraska could not impose an unreasonable burden on interstate commerce by preventing the transfer of groundwater from Nebraska to another state. Instead, the plaintiff must file a motion in the Supreme Court for leave to file a bill of complaint, and the Court then decides whether to grant the motion and hear the case. We have even applied the doctrine to anadromous fish--such as Chinook salmon and steelhead trout--that migrate between the Pacific Ocean and spawning grounds in the Columbia-Snake River system, "travel[ing] through several States during their lifetime." 0000001264 00000 n The evidence shows that wells in Memphis and wells in northwest Mississippi are "pumping from the same aquifer." As Mississippi itself emphasizes--literally--it has "not yet requested equitable apportionment." 19 0 obj <> endobj U.S. Florida v. Georgia, 592 U.S. __, __. In Mississippi v. Tennessee, the City of Memphis, a city in Tennessee located near Tennessees border with Mississippi, pumped groundwater from a vast interstate aquifer, the Middle Claiborne Aquifer, that underlies both states. The Court did not, however, specifically preclude Mississippi from filing a motion for leave to file a complaint seeking equitable apportionment.
The United States sought additional water rights for the Pyramid Lake Indian Tribe beyond those awarded to the Tribe in a 1944 judicial decree. See Colorado v. New Mexico, 459 U.S. 176, 183 (1982). See Exceptions Brief for Mississippi 28. It argues that the Special Master erred in finding the water in the Middle Claiborne Aquifer subject to equitable apportionment. This Court has never before held that an interstate aquifer is subject to equitable apportionment, so Mississippi's suit implicated a question of first impression. (a) The doctrine of equitable apportionment aims to produce a fair allocation of a shared water resource between two or more States, see Colorado v. New Mexico, 459 U.S. 176, 183, based on the principle that States have an equal right to reasonable use of shared water resources. The Middle Claiborne Aquifer is one of the latter.
Mississippi alleges that Tennessee's pumping has taken hundreds of billions of gallons of water that were once located beneath Mississippi.
Because Mississippi's complaint did not seek equitable apportionment, the Special Master recommended that the Court dismiss the complaint but grant Mississippi leave to amend.
We disagree. Water is naturally drawn to this area of lower pressure. See U.S. Tennessee's pumping has contributed to a cone of depression that extends miles into northern Mississippi, and Mississippi itself contends that this cone of depression has reduced groundwater storage and pressure in northern Mississippi. But only to the extent of some 30 to 60 feet per year. Groundwater percolates through the spaces in and around these materials, sometimes forming underground reservoirs of water known as aquifers. Hood exrel. Pennsylvania v. New Jersey, 426 U.S. 660, 666 (1976). Miss., 570 F.3d, at 632-633; Fed. Thus, we have "consistently denied" the proposition that a State may exercise exclusive ownership or control of interstate "waters flowing within her boundaries."
That is the basis of this suit. Slip Op. v. Memphis, 570 F.3d 625 (2009). Also pertinent is that the Middle Claiborne Aquifer contains water that flows naturally between the States. 9. 0000009892 00000 n 19(a), as Mississippi and Tennessee are not the only States that rely on the Middle Claiborne Aquifer for groundwater, see Hearing Tr. 0000021966 00000 n The Court has "consistently denied" the proposition that a State may exercise exclusive ownership or control of interstate "waters flowing within her boundaries." Id. Hood exrel.
But that feature alone cannot place the resource outside the doctrine itself. v. Herrmann, 569 U.S. 614, does not support Mississippi's position. For these reasons, we hold that the waters of the Middle Claiborne Aquifer are subject to the judicial remedy of equitable apportionment. Hood exrel. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 102 (1938). Mississippi filed a motion in the Supreme Court for leave to file a complaint against Tennessee and Memphis under the Courts original jurisdiction. That some of the water was previously located in Mississippi is of no moment, just as it was not dispositive that the river at issue in Colorado v. New Mexico started in Colorado, 459 U.S., at 181, n.8, or that certain fish at issue in Idaho ex rel. This, in turn, "causes a pattern of lower or depressed water levels around the wells." As the Court stated, Mississippis argument would allow an upstream state to completely cut off the flow of groundwater to a downstream state, contrary to the Courts equitable apportionment jurisprudence. Mississippi brought an original action against Tennessee for damages and other relief related to the pumping of groundwater by the City of Memphis from the Middle Claiborne Aquifer, a valuable water resource that lies beneath eight States. Fed. Following motions practice, discovery, and a five-day evidentiary hearing, the Special Master issued a report recommending that we dismiss Mississippi's complaint, but with leave to amend. Ever since, water pumped from the aquifer has provided Memphis with an abundant supply of clean, affordable drinking water. Nebraska v. Wyoming, 325 U.S. 589 (1945); New Jersey v. New York, 283 U.S. at 342-343; Kansas v. Colorado, 206 U.S. 46 (1907). Florida v. Georgia, 592 U.S. ___, ___ (2021) (slip op., at 4) (internal quotation marks omitted). This article will describe the facts of Mississippi v. Tennessee; the Supreme Courts original jurisdiction over interstate water disputes; the doctrine of equitable apportionment that the Supreme Court has fashioned in resolving such disputes; the Courts decision and analysis in Mississippi; and will then provide a brief comment on state ownership of water. Under the Judiciary Act of 1789, the Supreme Court has original and exclusive jurisdiction over disputes between states. He found that the aquifer is a "single hydrogeological unit," that Tennessee's pumping affects groundwater beneath Mississippi, and that prior to such pumping, "groundwater flowed between Mississippi and Tennessee"--a fact Mississippi "does not dispute." 7. 0000002998 00000 n Evans hatched in Idaho, 462 U.S., at 1028, n.12. The proposed complaint requested over $1 billion in damages for the alleged taking of Mississippi's water. Under that doctrine, this Court allocates rights to a disputed interstate water resource after one State sues another under our original jurisdiction. Mississippis claim that it owns the groundwater in its portion of the interstate aquiferwhich was the predicate for its claim that Tennessee was liable in tort for taking groundwater from the aquiferis not without foundation. The aquifer underlies many other states in the Mississippi River Basin as wellAlabama, Arkansas, Illinois, Kentucky, Louisiana and Missouri. Most importantly, the Court held that pumping of groundwater from the aquifer in Tennessee affects groundwater in the aquifer in Mississippi, in that pumping in Tennessee creates a cone of depression that reduces groundwater storage and pressure in Mississippi. See Kansas v. Colorado, 206 U.S., at 115. We decline to decide whether Mississippi should be granted such leave, because the State has never sought it. Resolving the dispute, the Court held that equitable apportionment applies to the Middle Claiborne Aquifer because the dispute over the aquifer is sufficiently similar to past interstate water disputes in which equitable apportionment has been applied.
While Mississippi contends the natural transboundary flow of the Middle Claiborne Aquifer is slower than some streams and rivers, the Court has applied equitable apportionment even to streams that run dry from time to time. The Court has also applied the doctrine to anadromous fish that migrate between the Pacific Ocean and spawning grounds in the Columbia-Snake River system, "travel[ing] through several States during their lifetime." Exh.
The origin of an interstate water resource may be relevant to the terms of an equitable apportionment. The Court exercises its exclusive jurisdiction only if it is appropriate to do so.
So the Fifth Circuit held that the District Court had properly dismissed the suit.
In one notable case, California brought an original action in the Supreme Court against Texas and other states that had imposed an embargo on fruits and vegetables grown in California. The Supreme Court issued a temporary restraining order (TRO) prohibiting the states from imposing their embargo, even though the Court does not have specific authority to issue a TRO and apparently had never issued a TRO before. It also alleges that Tennessee's pumping is "siphoning" tens of millions of gallons of groundwater each day from Mississippi's portion of the aquifer. Not a single justice supported Mississippis ownership claim as applied to the interstate aquifer. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 102 (1938). This equitable principle limits the states authority to allocate interstate water to its own users, because the amount of water that the state allocates among its users cannot exceed the amount of the states equitable share of the waters. In sum, while Mississippi rejected Mississippis claim that it owned the groundwater in an interstate aquifer and could assert a tort claim against Tennessee for pumping groundwater from the aquifer, Mississippi did not suggest that states do not have an ownership interest in groundwater, or other waters, within their borders. And it said the fact that an aquifer is "located underground, as opposed to resting above ground," was of "no analytical significance."
It is certainly true that "each State has full jurisdiction over the lands within its borders, including the beds of streams and other waters." He first determined that the Middle Claiborne Aquifer is an interstate water resource. Idaho ex rel. The Court also rejected the Special Masters recommendation that the Court should allow Mississippi to amend its complaint to seek equitable apportionment, because, the Court stated, Mississippi has not sought to amend its complaint to seek equitable apportionment and the Court cannot assume that Mississippi would do so. 0000006499 00000 n
The Court's decision in Tarrant Regional Water Dist. Arkansas marks the City's western border, and Mississippi its southern.
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He has ably discharged his duties. The Court relied on this principle in its seminal decision establishing the public trust doctrine, which held that the states, having acquired title and ownership of navigable waters and lands, hold the water and lands in trust for the publics common use. Thus, while equitable apportionment generally applies to interstate disputes over water, the same principle also applies to interstate disputes over fishery resources in the water. 28 U.S.C. Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 102 (1938). In the early twentieth century, southern California was taking increasing amounts of water from the Colorado River to meet its growing needs, and Arizona claimed that California was taking more than its fair share and depriving Arizona of water necessary to meet its anticipated future needs.
Many of these States, including Mississippi and Tennessee, draw significant amounts of groundwater from the aquifer. Mississippi argues that our decision in Tarrant Regional Water Dist. Indeed, the Articles of Confederation, which preceded the Constitution, provided for the creation of a special court with power to resolve interstate disputes, and a special court resolved a boundary dispute between Pennsylvania and Connecticut, as a result of which the City of Scranton is located in Pennsylvania today. 206, 435-436, 525. Proc.
Const., Art. See Complaint 38 ("This case does not fall within the Court's equitable apportionment jurisprudence.").
The Supreme Court has great flexibility in fashioning rules governing original jurisdiction actions. Although the Court acknowledged that a state has full jurisdiction over the lands within its borders, including the beds of streams and other waters, the Court held that such jurisdiction does not confer unfettered ownership or control of flowing interstate waters themselves. Id. It says that MLGW's "mechanical pumping" is to blame and that the "groundwater taken by Defendants from within Mississippi's borders would have never under normal, natural circumstances been drawn into Tennessee." 0000018482 00000 n Under its original jurisdiction, the Supreme Court has resolved several interstate water rights disputes. If Mississippi were to file such a motion, the Court presumably would consider the motion based on the Courts established equitable apportionment principles.
Under the congressional apportionment, the Court ruled, California was entitled to 4.4 million acre-feet of Colorado River water each year, Arizona 2.8 million acre-feet, and Nevada 300,000 acre-feet. 0000012919 00000 n The Court applied this principle in establishing the public trust principle that the states hold the waters and lands in trust for the publics common use.
Mississippi then petitioned for a writ of certiorari. This "wrongful taking," the State contends, "is evidenced by a substantial drop in pressure and corresponding drawdown of stored groundwater" in northwest Mississippi, and by a cone of depression extending miles into its territory.
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