HO HO HO – THERE’S HOLIDAY CHEER IN THE WATER WARS!
Clyde Morris, Legal Counsel to the Lake Lanier Association, wrote the following summary of the most recent happenings with the U.S. Supreme Court for the benefit of Lake Lanier Association members. Thank you Clyde!
Admittedly, a case management order from a federal court judge is an unlikely source for holiday cheer. But sometimes you find happiness in places you didn’t expect.
Such is the case in the long-standing bout between Florida and Georgia over the waters of the ACF. LLA members will recall that the case is now in the hands of a new Special Master, Paul J. Kelly, Jr. of Santa Fe, New Mexico, Senior Circuit Judge of the 10th Circuit Court of Appeals. Judge Kelly issued an order on November 6 dealing with how the case will proceed. He quickly made it clear that he does not intend to expand the proceedings or drag this case out any more than is necessary. Even more promising is that he does not want to contribute to the states’ financial burdens, either.
The parties had submitted a joint memorandum on the issues of additional evidence, discovery, stipulations, hearings, and possible settlement. After reviewing it, Judge Kelly ruled that the existing record is sufficient to resolve the case, no additional discovery is needed, and only an additional non-evidentiary hearing may be beneficial.
In his words, “Given the voluminous record in the case resulting from virtually unlimited discovery and a lengthy trial, additional discovery will only lengthen the proceedings, delay the outcome, and increase litigation costs. There is ample evidence in the record pertaining to Georgia’s water use in the ACF basin, and Florida has not explained why a material change since 2016 appears likely. As for the effect of the revised manual, both the prior Special Master and the United States indicated that the revised manual was unlikely to change relevant flow conditions.”
Judge Kelly went on to say, “Finally, a major focus of the prior trial was the 2012 oyster fishery collapse and its causes; though Florida says that there is more information from 2016-2018 that might justify increased streamflow, there is ample lay and expert evidence in the record about these issues. The Special Master is not persuaded that more evidence pertaining to this harm is merited because the likely additional value of such evidence is outweighed by the significant cost and delay that will accompany producing and presenting it.”
While all of this is cause for cheer among those of us anxiously awaiting an end to the case, there is even more to be found in Judge Kelly’s reminder that, “Ultimately, Florida must prove by clear and convincing evidence that the benefits of an equitable apportionment decree substantially outweigh any harm that might result.”
Floridians may perceive Judge Kelly as more like Ebenezer Scrooge than Santa Claus as a result of this order. But bringing the case to the soonest possible close – and focusing on the extremely high standard of proof Florida must meet – certainly gives Georgians reason to be cheerful this holiday season.