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Solicitor General recommends double denials in invitation briefs

The water wars return to the Court again, this time in an original action – that is, a lawsuit that begins in the Supreme Court – brought by Mississippi against Tennessee. The dispute centers around water from the Sparta-Memphis Aquifer, which spans the Tennessee-Mississippi border. The city of Memphis has long pumped water from the aquifer, leading to lower water levels in the part of the aquifer located below the city. Those lower water levels in turn result in different water pressures in that section of the aquifer, on the one hand, and sections of the aquifer under other parts of Tennessee, Arkansas, and Mississippi. As a result, Mississippi contends, water stored in the aquifer in Mississippi moves north toward Memphis, even though it would normally remain in Mississippi.

In June 2014, Mississippi asked the Supreme Court for leave to file a complaint against Tennessee, Memphis, and the city’s water utility. It is seeking a declaration that it alone has the right to the water that is naturally stored in the aquifer beneath Mississippi, as well as $615 million in damages and interest for the loss of the water and an order requiring the city and the utility to take action to eliminate the lower water pressure in the aquifer beneath Memphis. The Court asked the Solicitor General to weigh in last fall; he filed his brief last week.

The Solicitor General has recommended that the Court deny Mississippi’s motion for leave to file a bill of complaint. In his view, the state has not alleged a cause of action: it cannot contend that Tennessee is taking its water until the waters from the aquifer have been apportioned. Not only has there been no apportionment, he emphasizes, but Mississippi “expressly does not seek an equitable apportionment here.” As such, he concludes, although the motion should be denied, the Court should do so “without prejudice to refiling a properly framed complaint for an equitable apportionment of the Aquifer premised on concrete allegations of real and substantial injury.”

Dollar General v. Mississippi Band of Choctaw Indians arises from allegations that in 2003 a manager at a Dollar General store within the tribe’s reservation sexually molested a thirteen-year-old member of the tribe who was interning at the store.  The boy and his parents filed a lawsuit in tribal court in which they sued both the manager and the store, seeking to hold it liable for the manager’s conduct and alleging that the store was negligent in hiring and supervising him.

As a general rule, Indian tribes don’t have authority over the conduct of non-members on non-Indian land, and hence they lack jurisdiction over disputes arising out of that conduct. However, there are two exceptions to that general rule, outlined in the Court’s 1981 decision in Montana v. United States. Under the exception at issue in this case, a tribe “may regulate, through taxation, licensing, or other means, the activities of non-members who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.”

After the tribal courts ruled in favor of the boy and his family, the store filed suit in federal district court in Mississippi to stop the tribal-court proceedings. But both the district court and the Fifth Circuit ruled against them. In its decision, the Fifth Circuit acknowledged a dissenting judge’s “assertion that ‘no circuit court has upheld Indian-court jurisdiction’ over a “tort claim against a nonmember defendant.” But in its view, tribal courts have jurisdiction over tort claims against defendants who are not members of the tribe as long as there is “a ‘logical nexus’ between the activity giving rise to the tort claim and ‘some consensual relationship between a business and the tribe or its members’” – a nexus that it found present in this case. After the court of appeals – over the dissent of five judges – denied rehearing en banc, the store filed a petition for certiorari; last fall the Court invited the Solicitor General to file a brief expressing the views of the United States, which it did last week.

The Solicitor General recommended that the Court deny the store’s petition. In his view, the Fifth Circuit’s holding that the tribal court has jurisdiction over the boy’s claims is correct. There is, he says, “no foundation” for the store’s argument that that there is a “categorical prohibition” of private tort claims in tribal court against defendants who are not members of the tribe.

We expect the Justices to consider the Dollar General case at their June 4 Conference and the water case at the June 11 Conference.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as co-counsel to Dollar General. However, I am not affiliated with the firm.]

Recommended Citation: Amy Howe, Solicitor General recommends double denials in invitation briefs, SCOTUSblog (May. 20, 2015, 12:16 PM),