Dear List Members, Earlier this week the US Supreme Court made a decision as to whether the court would hear the appeal of a case concerning water storage in Lake Lanier.
Our attorney, Clyde Morris, who is representing us in the Tri-States litigation, has provided the following information about this decision and its relevance to Lake Lanier.
U.S. SUPREME COURT’S DENIAL OF CERTIORARI IN GEORGIA vs FLORIDA
In this case, the Corps, Georgia, the Atlanta area water supply providers, and the Southeastern Federal Power Customers (SeFPC) entered into a settlement agreement in a lawsuit filed by the SeFPC to obtain compensation for power generation that was allegedly being foregone due to management of LakeLanier for water supply purposes. Florida and Alabama intervened and challenged the agreement. The primary issue in the case was whether the settlement agreement should be upheld. The DC District Court ruled that it would, but later the DC Circuit Court of Appeals reversed and said it would not. Georgia appealed the Circuit Court’s ruling to the Supreme Court.
On January 12, 2009, the US Supreme Court denied certiorari in the case, meaning that it refused to entertain Georgia’s appeal. There was a very small chance that the Supreme Court would accept the appeal, because only a very small percentage of cases appealed to the Supreme Court are accepted and those that are must present questions that the Court deems worthy of its review. So, the Court’s decision not to allow the appeal is of little surprise to anyone. The question is: what, if any, affect will the Supreme Court’s decision NOT to hear the appeal have on us?
The immediate effect is that there is no change in the status quo in the Water Rights litigation. While it could have been beneficial if the Supreme Court had granted the appeal, we would have benefited only if the Court had ruled in Georgia’s favor on the merits of the case. Since that avenue is now moot, we will simply continue with the Water Rights litigation already going on in Florida, according to the schedule already established by that Court.
It is important to understand that it was primarily dicta (language in the DC Circuit Court’s ruling that isn’t authoritative) that has given rise to Florida’s and Alabama’s now-famous argument that water supply is not an authorized purpose of LakeLanier. I expect Judge Magnuson to include a ruling regarding that argument as part of our litigation. That issue will be addressed in Phase 1, while the claims of primary importance to the LLA – regarding the Corp’s draw-down of water in the Lake – will be addressed later, in Phase 2.
