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Court official in FL v. GA water case issues confidentiality order

Mon, Apr 13, 2015

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By BRUCE RITCHIE

FLORIDAPOLITICS.COM

An official appointed by the U.S. Supreme Court to oversee a lawsuit filed by Florida against Georgia over water use on Monday issued an order providing for confidential talks among the states.

An oysterman harvests oysters from Apalachicola Bay in December 2013.

An oysterman harvests oysters from Apalachicola Bay in December 2013.

Robert I. Lancaster, a Maine attorney who’s special master in the case, in a conference call also called the media “relentless and ruthless” and said, “They will do everything they can to publish everything that they can find out.”

Contending that Georgia’s unchecked growth and water use was harming Apalachicola Bay oysters and the seafood industry, Florida Gov. Rick Scott in 2013 asked the Supreme Court to allocate water between the two states. The Supreme Court in November appointed Lancaster to oversee the case.

In March, Scott asked Georgia Gov. Nathan Deal to forward a proposal for resolving differences between the states. Scott’s letter was in response to Deal’s request in February to meet on the issue.

On April 2, Florida and Georgia together asked Lancaster to order that meetings, other communications and documents involving negotiations be kept confidential. In a telephone transcript filed Friday, Lancaster told attorneys from the states that he would issue such an order.

“You can be sure that I will enter a confidentiality order shortly,” Lancaster said in the transcript of an April 7 conference call. “I have not taken a look at the — the points that you made; but if you’re confident that it would act as a shield from the freedom of access laws, that’s fine.”

Ralph I. Lancaster.

Ralph I. Lancaster.

Soon after he was appointed in November, Lancaster encouraged Florida and Georgia to work on settling the case while also urging them against talking to news reporters.

Lancaster told the states on a Dec. 1 conference call to “use restraint in correspondence with or discussions with the media.”

“My long-term experience with them is that they will take things out of context,” Lancaster said, “and you’ll be trying to explain them for the rest of your lives.”

Scott and Deal used a federal court order in 2010 to shield records involving water talks that led to Florida filing the 2013 lawsuit with the Supreme Court.

When Scott announced his lawsuit, he said Georgia had not negotiated in good faith over water. But Deal said his state had offered a “comprehensive framework” for a water agreement and Florida had never responded.

Both states refused to release records involving the talks because of the confidentiality order issued in 2010 by U.S. District Judge Paul A Magnuson. There have been no filings in that district court case since April 2013.

Alabama, Florida and Georgia have been fighting in federal court since 1990 over water from the Apalachicola, Chattahoochee and Flint rivers. Florida now says Alabama doesn’t need to be involved in the Supreme Court case because the dispute focuses on Georgia’s water use.

(Bruce Ritchie (@bruceritchie) covers environment, energy and growth management in Tallahassee. Story and photos copyrighted by Bruce Ritchie and Floridaenvironments.com. Do not copy, republish or forward without permission, which can be obtained from bruceBritchie@gmail.com.)

Florida in a bad spot with argument in water dispute, professor says

Mon, Mar 16, 2015

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The federal government says it agrees with Florida that a water-sharing allocation could be reached without altering dam operations. Photo by Bruce Ritchie.

The federal government says it agrees with Florida that a water-sharing allocation could be reached without altering dam operations. Photo by Bruce Ritchie.

By BRUCE RITCHIE

A legal dispute in the U. S. Supreme Court between Florida and Georgia over water can proceed without the involvement of federal government that operates dams on the Chattahoochee and Apalachicola Rivers, federal officials say.

That argument highlights how the water dispute between the states has changed. And if the argument holds true, then Florida is in a bad position for arguing its case before the U. S. Supreme Court, said Robin Kundis Craig, a University of Utah water law professor.

Alabama, Florida and Georgia have been fighting in federal court since 1990 over water from the Apalachicola, Chattahoochee and Flint rivers. Those cases have focused on how the Corps controlled reservoirs and the amount of water flowing through dams and whether Georgia was permitted under federal law to take water from those federal reservoirs.

But the dispute took a dramatic turn in direction in 2013 when Gov. Rick Scott blamed Georgia for using too much water and asked the U. S. Supreme Court to step in.

Florida said Georgia’s water use was harming fish and wildlife along the Apalachicola River and caused Apalachicola Bay’s oyster population to collapse. Alabama and the federal government were largely excluded from the case.

And Georgia responded in court that Florida’s own mismanagement allowed oysters to be over-harvested and caused the collapse, although University of Florida scientists disagree.

And now Georgia is arguing that the case cannot proceed because the federal government is a “required party” that was excluded from the case by Florida’s lawsuit. The U. S. Army Corps of Engineers operates a series of dams along the Chattahoochee River along with Jim Woodruff Dam along the state line where the Apalachicola River begins.

“Indeed, without the Corps as a party, neither Florida nor this court can ensure that the Corps will use any increased inflows into the ACF Basin from Georgia to maintain a minimum flow in the Apalachicola River — as opposed to serving other federal purposes such as water supply, hydroelectric power generation, water quality or navigation,” Georgia said in its motion to dismiss.

Responding in a brief filed last week, the U. S. solicitor general says the case can proceed and that the court can divide water among the states without involving federal agencies.

“The complaint indicates that Florida believes that it can be made whole without any action by the corps to implement a decree if Georgia reduces its (water) consumption,” the federal response said.

Florida now is seeking to cap Georgia’s water use, the solicitor general said, rather than address how the Corps is operating its reservoirs, which has been the focus of litigation back to a 1990 lawsuit filed by Alabama and Georgia against the Corps of Engineers.

Craig, who specializes in water law and Supreme Court equitable apportionment cases, said she hasn’t done the research to evaluate the veracity of Georgia’s claim that the federal government cannot be involved because it has not waived its sovereign immunity. And she said if Georgia is right, then dismissing the case would be a major development in the law dealing with water disputes before the Supreme Court.

And if Florida is right, the state will be stuck with arguing for a resolution that does not involve how the federal dams on the rivers are managed.

“If they (Georgia) are right about that then that’s why Florida is being put in the position they are being put in,” Craig said. “It is a bad position to be put in given the realities of the (federal operation of the river) system.”

(Story and photo copyrighted by Bruce Ritchie (@bruceritchie) and Floridaenvironemnts.com.  Do not copy, reprint or forward without permission, which can be obtained from brucebritchie@gmail.com).

Apalachicola group fires back at Georgia subpoena in water lawsuit

Sat, Feb 21, 2015

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By BRUCE RITCHIE

FLORIDA ENVIRONMENTS

Two Florida universities, two counties and more groups in Apalachicola have received subpoenas from Georgia in its water dispute with Florida before the U. S. Supreme Court, prompting more criticism of Florida’s lawsuit.

Florida in 2013 asked the U. S. Supreme Court to divide water in the Apalachicola-Chattahoochee-Flint (ACF) system among Alabama, Florida and Georgia. Florida blamed Georgia’s water use for depriving Apalachicola of fresh water and causing a collapse of oyster populations, but Georgia says overfishing and Florida’s own actions are to blame.

Meanwhile, Georgia is asking the Supreme Court to dismiss the case because the federal government was not named by Florida as a party in the litigation and is declining to join in the case.

Florida State University and the University of Florida received subpoenas this week for research data and computer modeling related to Apalachicola Bay oysters. Late last week, Apalachicola Riverkeeper, the Apalachicola Bay Oyster Dealers Association and the Apalachicola Bay Chamber of Commerce received subpoenas along with Bay and Washington counties.

Georgia wants Apalachicola Riverkeeper to turn over information on a wide array of issues including fisheries management, Apalachicola River water use and pollution, and records involving the Seafood Management and Resource Recovery Team in Apalachicola.

Apalachicola Riverkeeper also is a member of the ACF Stakeholders group which has been working on a sustainable water use plan for the region and has called on Florida to drop its lawsuit, called an “original action,” in the Supreme Court. ACF Stakeholders received a subpoena earlier this month from Florida.

Dan Tonsmeire

Dan Tonsmeire

“It is frustrating to me the lawyers are making most of them somewhere between $300 and $700 an hour, and we are now being drug into this at their behest after we tried so hard to work toward a resolution,” said Dan Tonsmeire of Apalachicola Riverkeeper. “And it’s going to cost us legal fees now to try to respond to these inquiries for information.”

And while lawyers on both sides are requiring information from the groups, they’ve been unwilling to say what their strategy or plans are for the basin, Tonsmeire said.

“Nobody knew this (Supreme Court action by Florida) was going to be filed outside of the small litigation team,” he said.

There was no response from Florida officials to a request for comment. Georgia officials also did not respond to the criticism of the lawsuit.

Georgia said in a motion this week the case should be dismissed because the federal government controls water flowing into Florida through Jim Woodruff dam on the state line but isn’t named as a party in the case.

“Thus, even if Florida were to prevail in its suit against Georgia, the Supreme Court could not guarantee Florida what it considers to be an adequate flow of water into the Apalachicola River unless the United States can be bound by the court’s decree,” Georgia wrote.

Also this week, Rep. Mark Pafford, the House Democratic leader from West Palm Beach, said a water bill being pushed through the House should be expanded to include Apalachicola Bay and other regions of the state.

When told that Apalachicola Bay involves an interstate water fight, Pafford said, “It could be. It doesn’t have to be.”

Earlier this month, Florida issued subpoenas to 13 utilities, cities, counties and conservation groups in Georgia.

In Florida, all six counties along the Apalachicola River received subpoenas from Georgia as did the cities of Carrabelle and Apalachicola in Franklin County, Florida Sea Grant at the University of Florida and the Franklin County Seafood Workers Association.

(Story and photo copyrighted by Bruce Ritchie and Floridaenvironments.com. Do not copy, forward or reproduce without permission, which can be received from bruceBritchie@gmail.com.)

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