VOL. 124 | NO. 110 | Monday, June 8, 2009
Appeals Court Upholds Dismissal Of Mississippi Water Rights Case
By Bill Dries
A federal appeals court has upheld the dismissal of a water rights lawsuit filed by the state of Mississippi against the city of Memphis and Memphis Light, Gas and Water Division.
The Fifth U.S. Circuit Court of Appeals ruled Friday that Mississippi authorities failed to include the state of Tennessee as an “indispensable party.”
At issue in the case was groundwater from the Memphis Sands aquifer that runs beneath Memphis as well as parts of Mississippi and Arkansas. It is the primary water source for Shelby County as well as DeSoto County.
Mississippi officials first filed suit in 2005 seeking damages and relief from what they claimed was Memphis’ use of groundwater that was Mississippi’s sovereign property.
Attorneys for the city of Memphis and the utility moved to dismiss the case shortly after it was filed, arguing any actions the city and MLGW took in using the water aquifer were regulated by the state of Tennessee.
The motion to dismiss was denied in Oxford federal court several times. Then in January 2008, as the case was about to go to trial, the court decided to review the issue again. That’s when the court dismissed the lawsuit on the grounds Tennessee was an “indispensable party.”
“The aquifer is an interstate water source,” the appeals court opinion read. “And the amount of water to which each state is entitled from a disputed interstate water source must be allocated before one state may sue an entity for invading its share. Allocation of an interstate water source is accomplished through a compact approved by Congress or an equitable apportionment.”
The last two words – equitable apportionment – represent a doctrine in federal common law for determining how such resources as water and wildlife, even fish, are to be allocated.
“It is clear the aquifer is not a fixed resource like a mineral seam, but instead migrates across state boundaries,” wrote Appeals Court Judge Carl E. Stewart, in Friday’s ruling.
“The (U.S.) Supreme Court has consistently rejected the argument … that state boundaries determine the amount of water to which each state is entitled from an interstate water source.”
The appeals court ruling also held that the district court couldn’t simply make Tennessee a defendant in the suit because the U.S. Supreme Court has “original and exclusive” jurisdiction over such a legal conflict between states.
If Mississippi wants to pursue the issue, it will have to include Tennessee and make its case directly to the U.S. Supreme Court.