Wednesday, June 27, 2018

For now, U.S. Supreme Court Rules for Florida and Against Georgia, in Water Rights litigation. (June 27, 2018 SCOTUS slip opinion)

By the skin of our teeth, luckily, mirabile dictu, Florida prevailed on a procedural issue, allowing the Attorney General to continue our State's decades-long efforts to protect our rivers from Georgia water hogs.   Lucky day.

The Supreme Court held this morning that its Special Master erred by failing to consider remedies.  Justice Stephen Breyer wrote for the 5-4 Supreme Court majority for himself and Chief Justice Roberts and Justices Kennedy, Ginsburg and Sotomayor.   Dissenting were Justices Thomas, Kagan, Gorsuch and Alito.

This water rights litigation has taken tens of millions of dollars, doled out to private law firms hired by Florida Attorney General PAMELA JO BONDI.

Footnote: Justice Stephen Breyer is a 1994 Bill Clinton appointee, a wit, a scholar, an administrative law expert, former chief counsel to the Judiciary6 Committee chaired by Sen. Ted Kennedy (my first boss), former Chief Judge of the United States Court of Appeals in Boston, a longtime member of the Administrative Conference of the United States, and friend of my mentor, former U.S. Department of Labor Administrative Law Judge Nahum Litt.  I shall always remember the private talk between Chief Judge Nahum Litt and then Appeals Court Chief Judge Stephen Breyer at a 1992 ACUS meeting.
This was three years before Congress heeded our concerns, which I first expressed in a 1989 Common Cause Magazine article, "Business As Usual."  (corrected -- 1994, not 1995).   
We, the People. won.  Again.
Congress rightly abolished ACUS for some fifteen years, 1995-2010.
Under President Reagan, ACUS was converted into an abominable basket of deplorables, a bunch of bullies, corporate lawyers and government lawyers allied against the public interest.

From 1986-1995, Judge Litt and I exposed ACUS noted for being:
  • Unaccountable,
  • Unproductive, producing dubious "studies" by academics,
  • Dominated by government and corporate lawyers, 
  • A lapdog and not a watchdog, 
  • Repeatedly violating the Federal Advisory Committee, 
  • Infested with an unbalanced membership a/k/a "The Swamp,
  • Wasteful of government funds on misguided advocacy of altering or abolishing laws protecting administrative law judge independence, 
  • Supportive of efforts to narrow Freedom of Information Act, 
  • A cheerleader for "alternative dispute resolution," including inflicting mandatory arbitration on unsuspecting workers and consumers, violating Seventh Amendment rights to jury trial. 
In 1989, when I became Legal Counsel for Constitutional Rights of the Government Accountability Project, then ACUS Research Director Jeffrey Lubbers (now an American University Law Professor), emotionally described me to GAP General Counsel, retired Judge Joseph B. Kennedy, as being "LITT's HITMAN." 
In 1995, after Congress took its money away -- "zeroed it out" over protests of two Supreme Court Justices -- ACUS had a giveaway of surplus books as it dissolved.  I stopped by ACUS's office on L Street in Washington, D.C. while Brian waited in the car, stocking up on paperback administrative law materials from the once-formidable agency.   Great souvenirs of a battle won.

Procedure matters.

As U.S. Rep. John Dingell once said, "if I write the procedure and you write the law, I will win every time."

Florida's procedural rights were violated by the Special Master, who applied a too-narrow standard on remedy.
In the Florida v. Georgia case, Justice Breyer's liberal procedural ruling promises justice for our Florida oystermen and protection of our Florida water.
Thank God for Article III federal courts and judicial independence.
Three cheers for Justice Stephen Breyer!

Updated to add AP story:

Justices give Florida narrow win in water fight with Georgia
By Jessica Gresko and Gary Fineout / The Associated Press
Posted Jun 27, 2018 at 12:39 PM
Updated Jun 27, 2018 at 5:15 PM

Florida officials celebrated the decision even though it means that the expensive battle, which has cost the state’s taxpayers $57 million in the last four years, will continue.

TALLAHASSEE — Florida’s governor is cheering and his Georgia counterpart is digging in for a fight after the U.S. Supreme Court allowed Florida to press its case in a decades-long battle between the two states over a river that serves them both.

The justices’ 5-4 ruling Wednesday concerns a dispute over Georgia’s use of water from the Chattahoochee and Flint rivers that serve booming metro Atlanta, Georgia’s powerful agricultural industry and Florida’s oyster fisheries beyond the river’s mouth.

The court said a special master appointed to hear the lawsuit should reconsider Florida’s argument that limiting how much water Georgia uses would provide more water downstream to the Apalachicola River that flows into Apalachicola Bay and the nearby Gulf of Mexico.

Florida officials celebrated the decision even though it means that the expensive battle, which has cost the state’s taxpayers $57 million in the last four years, will continue forward.

“Today’s ruling is a huge win for the entire state of Florida,” said Gov. Rick Scott, who pushed to have the state sue Georgia directly. “After decades of failed negotiations, we took our historic action to protect families all the way to the U.S. Supreme Court. I am glad that the court ruled in Florida’s favor today and we look forward to further securing a healthy Apalachicola Bay while protecting the thousands of jobs that depend on this natural resource. The best interest of these families will always come first.”

Georgia Gov. Nathan Deal, however, said he “remained confident” in his state’s legal position.

“Georgia remains committed to the conservation efforts that make us amicable stewards of our water resources,” said Deal, adding that both he and Attorney General Chris Carr “remain committed to making every effort to defend Georgia’s water resources for our current and future citizens. We look forward to obtaining a positive ruling on the merits in this case.”

The states’ battle over water use dates back to 1990, and includes drawn-out negotiations and several lawsuits. Alabama, which has the Chattahoochee on its eastern border, is not part of the current lawsuit that was first filed nearly five years ago.

The special master the court appointed to hear the lawsuit had recommended that the court side with Georgia and reject Florida’s call for limiting water consumption from the Flint river. But five of the justices did not agree with his decision.

“Five of us believe that the special master, as Florida said, did apply too strict a standard and that under a proper standard, Florida did adequately show that relief may be possible,” Justice Stephen Breyer said in announcing the opinion. “We hold that the master should go on to make further factual findings in the case, such as whether Georgia is, in fact, using too much Flint River water, and if so, whether Florida could benefit significantly from a cap on Georgia’s use of that water.”

Breyer was joined in his opinion by Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg and Sonia Sotomayor

In announcing the decision Wednesday, on the last day of the Supreme Court’s term before summer recess, Breyer said that if the public wishes to “learn something of the beauty and emotional appeal of this southeastern river basin,” he could recommend songs: Alan Jackson’s song “Chattahoochee” or Bing Crosby and Bob Hope performing “Apalachicola, Fla.” But he said if “you wish to learn about water rights” and “equitable apportionment of river water among states” he’d recommend reading the opinions in the case.

Justice Clarence Thomas, who grew up in Georgia, wrote that he would have sided with Georgia

“In the final analysis, Florida has not shown that it will appreciably benefit from a cap on Georgia’s water use,” Thomas wrote in a dissent for himself and Justices Samuel Alito, Elena Kagan and Neil Gorsuch.

Though the decision in the case was 5-4, the justices did not split along ideological lines, with two conservative justices joining three liberal justices in the majority and Kagan, a liberal, joining three conservatives in dissent.


Associated Press writer Ben Nadler contributed to this story from Atlanta

Huge procedural victory for the State of Florida and oystermen protecting our state from the greedy water depredations of Georgia and Atlanta developers.

What's next: remedies phase before Court's Special Master.

Here's the Court's decision:

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