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In: Canada and Transboundary Waters, Public Trust, Water Law Reform

In an unanimous opinion by Chief Justice Roberts, the U.S. Supreme Court has rejected Mississippi’s claims of state ownership of groundwater within its territorial boundaries. The Court instead, as a matter of first impression, extended the equitable apportionment doctrine for flowing waters and resources to the disputed Memphis aquifer.

Over two decades of litigation in federal courts, Mississippi has pressed its claim of sovereign ownership of groundwater in the aquifer within its state boundaries. Based on its claim of state “ownership,” Mississippi has sought hundreds of millions of dollars for the alleged unlawful conversion of its groundwater by neighboring Tennessee. This claim of ownership is at odds with a line of Supreme Court doctrines, starting with equitable apportionment, as Chief Justice Roberts writes for the Court (slip. op., at 9-10):

Mississippi contends that it has sovereign ownership of all groundwater beneath its surface, so equitable apportionment ought not apply. We see things differently. It is certainly true that “each State has full jurisdiction over the lands within its borders, including the beds of streams and other waters.” Kansas v. Colorado, 206 U. S. 46, 93 (1907). But such jurisdiction does not confer unfettered “ownership or control” of flowing interstate waters themselves. Wyoming v. Colorado, 259 U. S. 419, 464 (1922). Thus, we have “consistently denied” the proposition that a State may exercise exclusive ownership or control of interstate “waters flowing within her boundaries.” Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 102 (1938). Although our past cases have generally concerned streams and rivers, we see no basis for a different result in the context of the Middle Claiborne Aquifer…. Mississippi’s ownership approach would allow an upstream State to completely cut off flow to a downstream one, a result contrary to our equitable apportionment jurisprudence.

Thus the Chief Justice succinctly ended the Court’s discussion of the issue and Mississippi’s nearly two-decade legal quest for ownership of groundwater within its territory as property. It is a resounding win for neighboring Tennessee, Memphis, and the Memphis Light, Gas and Water Division, vindicating their long-standing legal position that the dispute must be plead as a request for equitable apportionment before arguing the merits of their water use and impacts.

How might the opinion in Mississippi v. Tennessee shape water law? The Court is explicit that it is deciding as a matter of first impression “whether equitable apportionment applies to interstate aquifers.” (slip op., at 7.). While the Chief Justice attempts to narrow the discussion to the Middle Claiborne Aquifer at issue in this dispute, the Court’s equitable apportionment holding would apply to (1) any interstate resource with (2) a measurable flow that (3) allows one state to interfere with the resource without trespassing into another state’s territory.

Mississippi v. Tennessee thus makes clear that states do not own the groundwater within their territory, and that interstate disputes over groundwater are subject to the Court’s equitable apportionment doctrine and procedures. However, the case makes no mention of the legal basis for denying state ownership and the long-standing alternative to state ownership of waters – the public trust doctrine. The Court’s silence on this background principle is striking, especially as public trust advocates are pushing to clarify and expand the doctrine in federal courts.

In my view, the Court’s holding on the equitable apportionment doctrine is logical and sound but could have gone further. I filed an amicus brief with a small crew of water law professors (Joe Regalia, Robert Abrams, Burke Griggs, and Jesse Richardson) to share with the Court the doctrines and implications beyond equitable apportionment in considering claims of state ownership of water as property. Beginning with a law review article in 2013 (Interstate Groundwater Law in the Snake Valley: Equitable Apportionment and a New Model for Transboundary Aquifer Management, with Benjamin L. Cavataro, 2013 Utah L. Rev. 1553) and again in 2016 (Interstate Groundwater Law Revisited: Mississippi v. Tennessee, with Joseph Regalia, 34 Virginia Environmental L. J. 1520), I have advanced and detailed how equitable apportionment should and can apply to groundwater. The more difficult question is what then explains the state’s relationship to waters within its territory, if not ownership? Joe Regalia and I explored this question, with implications for public water rights and protections, in our most recent article Waters of the State (59 Nat. Res. J. 59 2019). In short, it comes back to the public trust doctrine. And with a succinct opinion in Mississippi v. Tennessee, fundamental questions about the scope and power of the public trust doctrine for our waters remain unanswered.

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Great Lakes Law

Great Lakes Law

https://www.greatlakeslaw.org/blog/2021/11/supreme-court-rejects-states-claim-of-ownership-of-groundwater-extends-equitable-apportionment-doctr.html

Noah Hall

On:
In: Canada and Transboundary Waters, Environmental Justice, Environmental Rights, Politics, Public Trust, Water Law Reform

On February 26, 2019, voters in Toledo, Ohio overwhelmingly passed the Lake Erie Bill of Rights, fully stated-

ESTABLISHING A BILL OF RIGHTS FOR LAKE ERIE, WHICH PROHIBITS ACTIVITIES AND PROJECTS THAT WOULD VIOLATE THE BILL OF RIGHTS

We the people of the City of Toledo declare that Lake Erie and the Lake Erie watershed comprise an ecosystem upon which millions of people and countless species depend for health, drinking water and survival. We further declare that this ecosystem, which has suffered for more than a century under continuous assault and ruin due to industrialization, is in imminent danger of irreversible devastation due to continued abuse by people and corporations enabled by reckless government policies, permitting and licensing of activities that unremittingly create cumulative harm, and lack of protective intervention. Continued abuse consisting of direct dumping of industrial wastes, runoff of noxious substances from large scale agricultural practices, including factory hog and chicken farms, combined with the effects of global climate change, constitute an immediate emergency.

We the people of the City of Toledo find that this emergency requires shifting public governance from policies that urge voluntary action, or that merely regulate the amount of harm allowed by law over a given period of time, to adopting laws which prohibit activities that violate fundamental rights which, to date, have gone unprotected by government and suffered the indifference of state-chartered for-profit corporations.

We the people of the City of Toledo find that laws ostensibly enacted to protect us, and to foster our health, prosperity, and fundamental rights do neither; and that the very air, land, and water – on which our lives and happiness depend – are threatened. Thus it has become necessary that we reclaim, reaffirm, and assert our inherent and inalienable rights, and to extend legal rights to our natural environment in order to ensure that the natural world, along with our values, our interests, and our rights, are no longer subordinated to the accumulation of surplus wealth and unaccountable political power.

We the people of the City of Toledo affirm Article 1, Section 1, of the Ohio State Constitution, which states: “All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.”

We the people of the City of Toledo affirm Article 1, Section 2, of the Ohio State Constitution, which states: “All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; and no special privileges or immunities shall ever be granted, that may not be altered, revoked, or repealed by the general assembly.”

And since all power of governance is inherent in the people, we, the people of the City of Toledo, declare and enact this Lake Erie Bill of Rights, which establishes irrevocable rights for the Lake Erie Ecosystem to exist, flourish and naturally evolve, a right to a healthy environment for the residents of Toledo, and which elevates the rights of the community and its natural environment over powers claimed by certain corporations.

Section 1 – Statements of Law – A Community Bill of Rights

(a) Rights of Lake Erie Ecosystem. Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish, and naturally evolve. The Lake Erie Ecosystem shall include all natural water features, communities of organisms, soil as well as terrestrial and aquatic sub ecosystems that are part of Lake Erie and its watershed.

(b) Right to a Clean and Healthy Environment. The people of the City of Toledo possess the right to a clean and healthy environment, which shall include the right to a clean and healthy Lake Erie and Lake Erie ecosystem.

(c) Right of Local Community Self-Government. The people of the City of Toledo possess both a collective and individual right to self-government in their local community, a right to a system of government that embodies that right, and the right to a system of government that protects and secures their human, civil, and collective rights.

(d) Rights as Self -Executing. All rights secured by this law are inherent, fundamental, and unalienable, and shall be self-executing and enforceable against both private and public actors. Further implementing legislation shall not be required for the City of Toledo, the residents of the City, or the ecosystems and natural communities protected by this law, to enforce all of the provisions of this law.

Section 2 – Statements of Law – Prohibitions Necessary to Secure the Bill of Rights

(a) It shall be unlawful for any corporation or government to violate the rights recognized and secured by this law. “Corporation” shall include any business entity.

(b) No permit, license, privilege, charter, or other authorization issued to a corporation, by any state or federal entity, that would violate the prohibitions of this law or any rights secured by this law, shall be deemed valid within the City of Toledo.

Section 3 – Enforcement

(a) Any corporation or government that violates any provision of this law shall be guilty of an offense and, upon conviction thereof, shall be sentenced to pay the maximum fine allowable under State law for that violation. Each day or portion thereof, and violation of each section of this law, shall count as a separate violation.

(b) The City of Toledo, or any resident of the City, may enforce the rights and prohibitions of this law through an action brought in the Lucas County Court of Common Pleas, General Division. In such an action, the City of Toledo or the resident shall be entitled to recover all costs of litigation, including, without limitation, witness and attorney fees.

(c) Governments and corporations engaged in activities that violate the rights of the Lake Erie Ecosystem, in or from any jurisdiction, shall be strictly liable for all harms and rights violations resulting from those activities.

(d) The Lake Erie Ecosystem may enforce its rights, and this law’s prohibitions, through an action prosecuted either by the City of Toledo or a resident or residents of the City in the Lucas County Court of Common Pleas, General Division. Such court action shall be brought in the name of the Lake Erie Ecosystem as the real party in interest. Damages shall be measured by the cost of restoring the Lake Erie Ecosystem and its constituent parts at least to their status immediately before the commencement of the acts resulting in injury, and shall be paid to the City of Toledo to be used exclusively for the full and complete restoration of the Lake Erie Ecosystem and its constituent parts to that status.

Section 4 – Enforcement – Corporate Powers

(a) Corporations that violate this law, or that seek to violate this law, shall not be deemed to be “persons” to the extent that such treatment would interfere with the rights or prohibitions enumerated by this law, nor shall they possess any other legal rights, powers, privileges, immunities, or duties that would interfere with the rights or prohibitions enumerated by this law, including the power to assert state or federal preemptive laws in an attempt to overturn this law, or the power to assert that the people of the City of Toledo lack the authority to adopt this law.

(b) All laws adopted by the legislature of the State of Ohio, and rules adopted by any State agency, shall be the law of the City of Toledo only to the extent that they do not violate the rights or prohibitions of this law.

Section 5 – Effective Date and Existing Permit Holders

This law shall be effective immediately on the date of its enactment, at which point the law shall apply to any and all actions that would violate this law regardless of the date of any applicable local, state, or federal permit.

Section 6 – Severability

The provisions of this law are severable. If any court decides that any section, clause, sentence, part, or provision of this law is illegal, invalid, or unconstitutional, such decision shall not affect, impair, or invalidate any of the remaining sections, clauses, sentences, parts, or provisions of the law. This law would have been enacted without the invalid sections.

Section 7 – Repealer

All inconsistent provisions of prior laws adopted by the City of Toledo are hereby repealed, but only to the extent necessary to remedy the inconsistency.

Update: The day after this historic vote, a lawsuit challenging the Lake Erie Bill of Rights was filed in federal court by a polluting farm (Drewes Farm v. City of Toledo). Some of the issues raised were previewed in an analysis released just before the election by the Ohio State University Extension's Farm Office. 

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Great Lakes Law

Great Lakes Law

http://feedproxy.google.com/~r/GreatLakesLaw/~3/Z_VD1Xc2Eng/lake-erie-bill-of-rights.html

Noah Hall

On:
In: Public Trust, Water Law Reform

The following guest post is by Jeffrey B. Hyman, Senior Staff Attorney with the Conservation Law Center in Bloomington, Indiana. Jeff is counsel for respondent/intervenors Alliance for the Great Lakes and Save the Dunes in the Gunderson v. State of Indiana litigation.

Early this year the Indiana Supreme Court delivered a landmark public trust and equal footing decision in Gunderson v. State of Indiana. The Indiana Supreme Court ruled that at statehood, under these doctrines, Indiana acquired the bed of Lake Michigan within Indiana’s borders below the common-law “natural” ordinary high water mark (OHWM), including temporarily exposed shores. The Indiana Supreme Court also ruled that the state never conveyed the disputed shore to any private owner, including the Gundersons, and that the state continues to hold the shore in an inalienable trust for traditional public uses such as fishing and walking. With regard to ownership of the lakeshore, this is a unique decision for the Great Lakes region, where most states have relinquished their shores to private ownership.

The Indiana Supreme Court defined the natural OHWM based on the traditional concept used for non-tidal navigable waterbodies: the point on the shore where soil, vegetation, or other physical marks change from those characteristic of a water-influenced environment to those characteristic of terrestrial uplands.

The Gundersons had initiated their lawsuit in the trial court with the claim that under their private deed and plat, they held exclusive title to the disputed lakeshore down to the instant edge of the water where it laps at the shore at any given moment. The Gundersons were undoubtedly encouraged by recent public trust cases in Michigan and Ohio. In 2005, a majority of the Michigan Supreme Court held in Glass v. Goeckel that the public has the right to walk along the exposed shore below the traditional OHWM, even if the shore is privately owned to the low water mark. Even though this majority holding was not favorable for the Gundersons, the long and biting dissent in Glass argued that the boundary of public rights should instead be the instant water’s edge. In Ohio’s 2011 public trust case of State ex rel. Merrill, the Ohio Supreme Court came to a conclusion different from both the majority and the dissent in Glass, ruling that the boundary of state title and public rights on Lake Erie shores extends to the “line at which the water usually stands when free from disturbing causes.” Although the Merrill court did not explain this line in terms of physical marks, the court said that this line is not the traditional OHWM. But, said the Ohio court, neither is it the instant water’s edge. (For more on the Merrill decision, see Professor Ken Kilbert’s prior guest post.)

The defendant state and the two sets of intervenors argued that the case was governed not by the Gundersons’ private deed and plat but rather by the federal public trust and equal footing doctrines. According to these doctrines, upon winning the Revolutionary War, each of the original 13 states acquired title (previously held by the sovereign in England) to the beds of its navigable water bodies, up to the high-water mark, to hold in trust for its citizens. To ensure that each new state subsequently carved out of the territories is admitted to the Union on an “equal footing” with the original states, the equal footing doctrine constitutionally mandates that each new state automatically receive at statehood the same right of title to the beds of its navigable waterbodies as that held by the original states.

The Indiana trial court, intermediate appellate court, and high court all agreed that these doctrines governed the dispute, but with significant twists. The trial court ruled that the state acquired the shore under the equal footing doctrine, owns it up to an administrative water-elevation line advocated by the Indiana DNR, and holds it for general public recreational uses. (See this prior post on the trial court decision by Kyle Peczynski.) The intermediate Court of Appeals ruled that the state acquired the shore to the natural OHWM, but now the Gundersons own legal title down to the low water mark, subject to public rights of use. The Indiana Supreme Court, unraveling the tangle, ruled that the state acquired exclusive title to the shore below the traditional natural OHWM and still owns it to that boundary, but that public rights on the shore are limited in scope. Update: In February 2019, the United States Supreme Court denied certiorari, preserving this landmark state court decision on the public trust doctrine.

Resources:

Gunderson v. State of Indiana, Indiana Supreme Court Opinion, published at 90 N.E.3d 1171 (2018)

Gunderson v. State of Indiana, Petition for Writ of Certiorari in the Supreme Court of the United States

Gunderson v. State of Indiana, Petition for Writ of Certiorari in the Supreme Court of the United States, Supporting Appendix (includes all state court decisions)

Gunderson v. State of Indiana, Opposition to Certiorari by Alliance for the Great Lakes and Save the Dunes

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Great Lakes Law

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Noah Hall

On:
In: Canada and Transboundary Waters, Water Law Reform

The US Supreme Court issued a pair of opinions this term dealing with the role of the federal government in ongoing interstate water disputes: (1) Texas v. New Mexico and Colorado; and (2) Florida v. Georgia. The cases are before the Court under “original jurisdiction” - they are being heard on first impression rather than on appeal (although they have been reviewed and reported on by appointed Special Masters).

Substantively, both cases involve disputes between neighboring states regarding obligations and rights to shared waters, whether by agreement (interstate compact) or common law (equitable apportionment). Texas argues that New Mexico is violating the terms of their 1938 Rio Grande Compact with a self-serving interpretation of that agreement’s obligation on New Mexico to deliver water to a reservoir (in New Mexico) for use in Texas. Florida argues that Georgia is taking more than its equitable share of water for municipal and agricultural use from the Apalachicola-Chattahoochee-Flint basin and harming the downstream ecosystem in Florida. But before reaching the merits of these interstate disputes, the Court first had before it questions balancing federal and state control of shared interstate waters.

In the Rio Grande Compact dispute, the United States weighed in to protect downstream flows that it must deliver to Mexico pursuant to an international treaty. Justice Neil Gorsuch, writing for a unanimous Supreme Court, allowed the United States to bring its claims to defend "distinctly federal interests" - namely treaty obligations and the federal government's role in the Rio Grande compact operations. The case now moves forward with the United States as a key player.

In the Apalachicola-Chattahoochee-Flint basin dispute, Georgia argued that the Supreme Court could not decide the case without the U.S. Army Corps of Engineers at the table. The Corps controls the upstream water in Georgia that Florida wants conserved, and the United States sided with Georgia, stating it would not alter its control of the upstream water (ostensibly for navigation and flood control). The Special Master had sided with Georgia. The Supreme Court, by a 5-4 majority, instead sided with Florida and held that further proceedings were necessary to determine if the Court can provide redress for Florida's alleged harms.

For more detailed analysis of the Florida v. Georgia case and the Supreme Court's closely divided 2018 opinion, see Reed Benson's article: "Can a State's Water Rights Be Damned? Environmental Flows and Federal Dams in the Supreme Court." And check out the “infographic argument explainers” for Texas v. New Mexico and Florida v. Georgia at Subscript Law. 

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Great Lakes Law

Great Lakes Law

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Noah Hall

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In: Book Reviews, Environmental Rights, Students, Water Law Reform

Our new Second Edition of Modern Water Law: Private Property, Public Rights, and Environmental Protections has been published by Foundation Press and is available on Amazon. Co-authored again with Robert Adler, the Jefferson B. and Rita E. Fordham Presidential Dean, and Robin Kundis Craig, the James I. Farr Presidential Endowed Chair of Law, both at the University of Utah College of Law.

Modern Water Law provides a comprehensive text to study the range of legal issues and doctrines that affect water resources. We begin with private water use rights, including common law doctrines for riparian reasonable use and prior appropriation, as well as groundwater rights and the statutory schemes for administering water use rights. The book next details the range of public rights in water, including navigation, the public trust doctrine, federal reserved rights for tribal and public lands, and interstate water management. The book then explores modern challenges and environmental protection goals, focusing on the energy-water nexus, water pollution, and endangered species conflicts. The final chapters combine these concepts in the context of complex watershed restoration challenges and water rights takings litigation.

The second edition begins with entirely new coverage of the human right to water, including a 2017 federal case – Boler v. Earley/Mays. v. Snyder – regarding constitutional rights in the wake of the Flint, Michigan water crisis. (And great timing, as the Supreme Court denied review of the case just this week as our book came out in print.) Other major changes and developments include new cases on water use permitting, “takings” of private water rights, tribal rights to groundwater, interstate water disputes, and U.S.-Mexico water diplomacy. The second edition continues the logical organization that presents the field in appropriate depth for a semester course, with clear explanations and helpful questions and comments.

MWL2d_Mays_v_Snyder

Below is a summary of contents (for more details, see the full Table of Contents and Cases):

1. Introduction
PART I: PRIVATE PROPERTY RIGHTS TO USE WATER
2. Riparian Law
3. History and Principles of Prior Appropriation
4. Groundwater
5. Modern Application of Water Law
PART II: PUBLIC RIGHTS AND INTERESTS IN WATER
6. Control and Ownership of Navigable Waters
7. Public Rights in Water: The Public Trust Doctrine
8. Federal Water Interests
9. Interstate Water Pollution, Apportionment and Management
10. The Water-Energy Nexus
PART III: ENVIRONMENTAL PROTECTION OF WATER RESOURCES
11. The Intersection of Water Quality and Water Quantity
12. The Federal Endangered Species Act, Water Management, and Water Rights
13. Protecting and Restoring Watersheds and Water Systems
14. Public Interests, Private Rights in Water, and Constitutional Takings Claims

 

 

Original Article

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Noah Hall

On:
In: Book Reviews, Students, Water Law Reform

Water_Law_Cover
I have a new book out this year – it’s about water law and aptly named “Water Law.” Water Law: Concepts and Insights (full title) is another collaboration with Robin Kundis Craig, the James I. Farr Presidential Endowed Chair of Law, and Robert Adler, the Jefferson B. and Rita E. Fordham Presidential Dean, both at the University of Utah College of Law. (The cover photo of the Detroit River was taken from Belle Isle State Park last fall.)

“Water Law” is intended for lawyers, students, and anyone interested in understanding what water law is all about and how it shapes freshwater use and protection in the United States. The book provides a general overview of basic water law doctrines and an exploration of how water law – the law and policies governing allocation of freshwater – fit into broader ecological and environmental issues. Presented in 14 chapters, it begins with an overview of water use and protection challenges (including climate change) and a ‘hydrology for lawyers’ crash course. The next several chapters cover private water use rights under state law – riparian reasonable use for lakes and rivers in the east, prior appropriation for water in the west, and a spectrum of groundwater rules across the 50 states. It then explores public rights to water, notably the public trust doctrine and water rights reserved for Native American tribes. Constitutional law melds with water law in chapters about interstate disputes and federal powers, focusing on compacts and treaties governing the Great Lakes and Colorado River. Final chapters put the laws governing water use into a broader context, exploring intersections with energy policy, water quality, endangered species protections, and broader watershed management. “Water Law” concludes by looking at conflicts between private rights to water (constitutionally protected as property) and public and governmental interests in water (commonly decried as “takings”).

The final chapter tees up the fundamental question of water law – is water a private good, a person’s property, to be bought and sold like books or stocks? Or is water something different, a public and common treasure for all, to be stewarded for the greater good as a human right? “Water Law” does not presume a single answer, but gives the reader an organized tour of the field so she can reach her own conclusions.

“Water Law: Concepts and Insights” (331 pages) is published by Foundation Press. Available on Amazon (and consider making Great Lakes Environmental Law Center your AmazonSmile charity), order through your favorite bookseller, check out on Google Books, and preview the table of contents.

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Great Lakes Law

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Noah Hall