South Carolina sues in Supreme Court over water
UPDATE Friday a.m.
The Original lawsuit has been docketed as 138 Original, and the application for a preliminary injunction has been put on the docket as 06A1150.
UPDATE 10:47 PM: The state of South Carolina on Thursday filed an Original lawsuit in the Supreme Court, and at the same time sought temporary help from Chief Justice John G. Roberts, Jr., in a dispute over alleged diversion of water from the Catawba River. The text of a news release issued on Thursday can be found here. South Carolina’s Application for Preliminary Injunction can be found here, the Affadavits from Concerned Parties are here, and the state’s Motion for Leave to File Complaint, Complaint, and Brief, is here.
With “moderate drought conditions” now existing in the two states, South Carolina’s Attorney General Henry D. McMaster told the Chief Justice in an application for a preliminary injunction, the state of North Carolina has approved transfers out of the Catawba in amounts that “already exceed its equitable share of the Catawaba River.” Those diversions, McMaster added, “have directly harmed South Carolina and its citizens by severely reducing the flow of water into South Carolina that is available for the generation of hydroelectric power, economic development and commerce, and recreation.”
Those extra diversions, the application went on, “have exacerbated the already fragile state of the Catawba River and reduced further the often limited flow of water into South Carolina.” McMaster’s filing said that permission was being sought to file the new lawsuit directly in the Supreme Court because negotiations to settle the dispute have not succeeded.
The request for a preliminary injunction seeks to bar North Carolina temporarily from authorizing any excess diversions until after the Supreme Court disposes of the new lawsuit.
Here is the question South Carolina raised in its Original complaint:
“Whether North Carolina’s interbasin transfer statute is invalid under the Supremacy Clause of the United States Constitution and the constitutionally based doctrine of equitable apportionment because North Carolina, pursuant to that statute, has authorized and continues to authorize transfers of water from the Catawba River in excess of its equitable share of the waters of that interstrate river, thereby harming South Carolina and its citizens.”
North Carolina will have a chance to respond to the complaint and to the request for temporary relief, before the Supreme Court acts on either.
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The Supreme Court has original jurisdiction in actions between states. As a practical matter, how does this work? Is the court to be treated as a trial court and forced to handle mundane discovery motions? There must be precedent for this. Does anyone have any thoughts?
Comment by Dennis Bedard — June 8, 2007 @ 6:28 am
Dennis, see NJ v. Delaware, NJ. vs Nevada, Virginia v. Maryland, etc. These are all original lawsuits, between states, (often over water rights). Lately, SCOTUS has been appointing a Special Master (the famous Ralph Lancaster from Pierce Atwood in Maine) to handle all the details. The Special Master proceedings take a very long time, and all the discovery and arguments and research happen there. The Special Master then makes a recommendation which he submits to the court. The court ensures there is nothing else to report, that the Special Master has been duly paid by the parties, and then they decide what to do (either through a written decision or by ordering more actions to be taken [oral arguments, briefs, sending it back to the Special Master, etc.]).
Comment by David.Huberman — June 8, 2007 @ 11:10 am
Whats the average length of time it takes a Special Master to complete their work? I guess what I’m asking is does the Court have to render a decison in this by the end of OT 07?
Also, how likely does the Court accept the SM’s recommendations without further proceedings?
Comment by Phillip Edens — June 8, 2007 @ 1:46 pm
My impression is that proceedings before a Special Master generally proceed rather slowly. Some of these cases have dragged on for years. It is rather unlikely that the matter would be resolved in OT 07.
Comment by Marc Shepherd — June 8, 2007 @ 2:01 pm
As one example of how long original cases take, Virginia v. Maryland was submitted to SCOTUS in 2000 (530 U.S. 1201). SCOTUS handed down its decision in December 2003. As a second example, New Jersey v. Delaware has been going on since July 2005 and might be decided in OT2007. For a good look-see at the Special Master proceedings, take a look at the history of New Jersey v. Delaware to-date:
http://www.pierceatwood.com/custompagedisplay.asp?Show=2
Comment by David.Huberman — June 8, 2007 @ 3:33 pm