May 12, 2021

Mississippi Hasn’t Got a Chance (Bless its Heart), But its Original Action Against Tennessee is Still a Case to Watch

Posted on May 12, 2021 by Lewis B. Jones

Mississippi thinks Tennessee is stealing its groundwater, and it has filed an original action in the United States Supreme Court to stop it. State of Mississippi v. State of Tennessee, City of Memphis, and Memphis Light, Gas & Water Division, S. Ct. Orig. No. 143. The suit is directed at the City of Memphis, which draws its municipal supply from the Sparta Sands Aquifer. Because Memphis borders on Mississippi, the cone of depression from Memphis’s pumping naturally extends across the state line. Mississippi thus claims that Memphis is liable for trespass and conversion for “pull[ing] into Tennessee for capture and sale billions of gallons of high-quality groundwater that was located in Mississippi and subject to Mississippi’s exclusive authority and control as a sovereign under the United States Constitution.”

Mississippi seeks a declaratory judgment establishing its “sovereign right, title and exclusive interest in the groundwater stored naturally” in its soils. It also seeks an injunction and monetary damages not less than $615 million. Mississippi is represented by plaintiffs’ lawyer Don Barrett, of tobacco settlement and Katrina fame, who is working on a contingency basis. In its request for leave to file, Mississippi expressly disclaimed any remedy based on “equitable apportionment,” the doctrine employed for more than a century to apportion interstate resources.

The case is currently before the Court on exceptions to the report of Special Master Eugene E. Siler, Jr., a Senior Judge on the United States Court of Appeals for the Sixth Circuit. Judge Siler sided with Tennessee. After hearing evidence to confirm the Sparta Sands Aquifer is an interstate resource, Judge Siler concluded that equitable apportionment, not a claim for conversion, is the appropriate remedy for the alleged harm. Judge Siler recommended that Mississippi’s complaint be dismissed with leave to amend to state a claim for equitable apportionment, “unless Mississippi declines the favor, in which the case the complaint should be dismissed with prejudice.”

All parties have filed exceptions—Mississippi to the recommendation that its conversion claim be dismissed; the Tennessee parties to granting leave to amend. The United States has participated as an amicus, urging the Court to dismiss the conversion claim. Briefing will be completed on June 7. The only real suspense, however, is whether Mississippi, having now accepted the Special Master’s favor, will be allowed to amend. Notwithstanding the lack of drama, this case is one to watch for at least three reasons.

First, it will determine whether the doctrine of equitable apportionment applies to groundwater as well as surface water. Most assume it does. Originally developed to apportion interstate streams, the doctrine recognizes that neighboring states each have a real and substantial interest in interstate waters, and that conflicting interests must be reconciled to the extent possible. The effort is always to secure an equitable apportionment without quibbling over formulas. Beyond interstate streams, the doctrine has also been applied to other shared natural resources, including anadromous fish. And as Special Master Siler noted, Mississippi has failed to identify any compelling reason it should not also apply to an interstate aquifer.

Second, the fact the Court granted Mississippi leave to initiate this case suggests a loosening of the Court’s standards for allowing original actions to proceed. The case is almost a laboratory- controlled experiment, given that Mississippi requested leave to file twice, once in 2009 and again in 2014, with no material change in circumstances, and leave was granted the second time after being denied the first. This change suggests the Court may now be inclined to grant leave more freely to resolve interstate controversies.

The Court has repeatedly stated that it cannot be moved to control the conduct of one state at the suit of another unless a threatened invasion of rights of “serious magnitude” is “established by clear and convincing evidence.” Previously, there had been some debate as to whether this demanding standard applied, not only to the granting of a decree, but also to the granting of leave to file a complaint. The granting of leave in Mississippi v. Tennessee strongly suggests otherwise.

It may also reflect questions raised by some of the Justices regarding the discretionary nature of the Court’s original jurisdiction. For example, Justices Thomas and Alito in 2016 dissented from the denial of a motion for leave to file an original action in Nebraska v. Colorado. There, Justice Thomas expressed his view that the Court’s original jurisdiction over controversies between States is mandatory, and not discretionary: “If there is a controversy between two States, this Court—and only this Court—has jurisdiction over it. Nothing in § 1251(a) suggests the Court can opt to decline jurisdiction over such a controversy. Context confirms that § 1251(a) confers no such discretion.”

Third, the Court’s disposition of Mississippi’s claims is likely to provide needed clarification regarding the nature of the States’ “ownership” of water and wildlife and other “ferae resources.” Several Nineteenth Century cases described the States’ relationship to these resources in terms of title or ownership. Many State constitutions use similar language. The modern view, however—as emphasized by a cadre of leading water law professors writing as friends of the court—is that property concepts do not map neatly onto ferae resources, and that property language was used primarily as a short-hand to describe the States’ police power to manage natural resources. The State of Mississippi is not the first to have been led astray. It may be the last, however, if the Court responds to its claims as expected.