Water Log 29.4, February, 2010

U.S. Supreme Court Rejects Mississippi
Water Suit Against Memphis

Mississippi v. City of Memphis, Tenn., —- S.Ct. —-, 2010 WL 250602 (Jan. 25, 2010).

Niki L. Pace, J.D., LL.M.

Five years after filing its first complaint, Mississippi’s lawsuit against Memphis over withdrawals from the Memphis Sands Aquifer may have finally reached the end of the road. In late January, the U.S. Supreme Court denied Mississippi’s petition for writ of certiorari1 in the ongoing dispute between Mississippi and Memphis over water withdrawals from the aquifer. The Supreme Court also denied Mississippi’s alternate petition to file an original action with the Court for resolution of the interstate dispute.

Background
As previously covered by Water Log,2 Mississippi sued the City of Memphis and its utility company, Memphis Light, Gas and Water Division, over withdrawals from an aquifer underlying Mississippi, Tennessee, and Arkansas. Mississippi claimed that Memphis withdrew water that belonged to Mississippi and sought damages.
      Agreeing with the lower court, the Fifth Circuit determined that Mississippi’s claims required an equitable apportionment of water from the aquifer between the appropriate states. The Fifth Circuit affirmed the lower court’s dismissal of the suit for failure to join indispensable parties. Specifically, the court held that resolution of the matter necessitated that Tennessee be joined as a party in the lawsuit. The Fifth Circuit, therefore, lacked subject-matter jurisdiction because the U.S. Supreme Court has original jurisdiction over disputes between states.3
      On September 2, 2009, Mississippi appealed the Fifth Circuit opinion to the U.S. Supreme Court.4 In the event that the Supreme Court denied Mississippi’s request for appeal, Mississippi also filed an alternative motion for leave to bring an original action before the Supreme Court in this matter.5 Without issuing an opinion, the Supreme Court denied both requests.

Appeal of Fifth Circuit Decision
To distinguish between Mississippi’s two requests, the appeal of the Fifth Circuit decision requested the Supreme Court to reconsider the holding of the lower court. As stated above, the lower court found that any resolution of the case would require an equitable apportionment of the aquifer and thus the joinder of Tennessee as a necessary party. In its request for appeal, Mississippi maintained, instead, that equitable apportionment was inapplicable because the groundwater in question was the sovereign property of Mississippi.6
      The Supreme Court has never explicitly ruled that the doctrine of equitable apportionment governs transboundary aquifers like the Memphis Sands Aquifer. However, as noted by the Fifth Circuit, existing caselaw supports treating aquifers as “any other part of the interstate water supply.”7 One inference that can be drawn from the Supreme Court’s denial to reconsider this issue on appeal is that the Court considers this area of law settled, agreeing with the conclusions of the Fifth Circuit.

Original Action
The Court also denied Mississippi’s motion for leave to file an original complaint in this matter.8 Although no opinion was issued, the Court did cite two prior decisions dealing with interstate water disputes: Virginia v. Maryland and Colorado v. New Mexico. Both cases deal with equitable apportionment lending further support to the inference that the Court considers this a settled area of law.       
      In Virginia v. Maryland, Maryland sought to regulate Virginia’s exercise of its riparian rights on the Virginia shore of the Potomac River.9 An existing compact between the states regulated use and control of the Potomac River. In resolving the dispute, the Court noted that “[f]ederal common law governs interstate bodies of water, ensuring that the water is equitably apportioned between the States and that neither State harms the other’s interest in the river.”10 In denying Mississippi’s motion, the Court specifically references this principle from Virginia v. Maryland, suggesting that equitable apportionment does in fact govern a dispute over a transboundary aquifer.
      The Court’s reference to Colorado v. New Mexico adds even greater support to this conclusion. In Colorado v. New Mexico, Colorado sought to divert 4,000 acre-feet per year from an interstate river for future use. New Mexico challenged this decision. The Court held that the principle of equitable apportionment governed the situation and required a showing of harm: “Our cases establish that a state seeking to prevent or enjoin a diversion by another state bears the burden of proving that the diversion will cause it ‘real or substantial injury or damage.’”11 The Court went on to note that, in this instance, New Mexico bore the initial burden of proving that Colorado’s diversion would cause substantial injury to New Mexico.
      In other words, Mississippi, in challenging Tennessee’s withdrawals from the aquifer, bears the burden of showing that Tennessee’s withdrawals are causing, or will cause, real or substantial harm to Mississippi. The Court’s dismissal of Mississippi’s request for an original action suggests that the Court does not consider Mississippi’s burden met at this time.
Conclusion
The Supreme Court has effectively closed the door on Mississippi’s current claims over withdrawals from the aquifer. However, Mississippi’s request to file an original action was dismissed without prejudice. This frees Mississippi to file an original action with the Supreme Court in the future should Mississippi be able to sufficiently demonstrate injury. Current accounts suggest that Mississippi may seek to work with Tennessee and Memphis to reach a resolution of the matter without further litigation.12

Endnotes:
1 .   A writ of certiorari is used by the U.S. Supreme Court to review the cases that it wants to hear. Black’s Law Dictionary 228 (6th ed. 1990). By petitioning the Supreme Court for a writ of certiorari, Mississippi is asking the Supreme Court to review the Fifth Circuit decision in this case.
2.   Joanna C. Abe, Fifth Circuit Dismisses Mississippi’s Groundwater Claim, 29:2 Water Log 6-7 (2009).
3.   Hood v. City of Memphis, Tenn., 570 F.3d 625 (2009).
4.   See Petition for Writ of Certiorari, Mississippi v. City of Memphis, Tenn., 2010 WL 250602 (Jan. 25, 2010) (No. 09-289).
5.   See Mississippi’s Motion for Leave to File Bill of Complaint in Original Action, Mississippi v. Memphis, No. 139 Original (2010).
6.   Petition for Writ of Certiorari, supra note 4, at i.
7.  Hood v. Memphis, 570 F.3d at 630, n. 5.
8.  559 U.S. ___ (Jan. 25, 2010), available at http://www.supremecourtus.gov/orders/courtorders/ 012510zor.pdf.
9.   Virginia v. Maryland, 540 U.S. 56 (2003).
10. Id. at 74 n. 9.
11. Colorado v. New Mexico, 459 U.S. 176, 187, n.13 (1982).
12. Jack Elliot Jr., Hood Weighs Options on Miss.-Tenn. Water Dispute, Sun Herald (Biloxi, Miss.), Jan. 27, 2010, http://www.sunherald.com/218/ story/1900727.html.

Recommended citation: Niki L. Pace, U.S. Supreme Court Rejects Mississippi
Water Suit Against Memphis, 29:4 WATER LOG 4 (2010).