Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State of Florida v. State of Georgia, Orig

United States Supreme Court

June 27, 2018

STATE OF FLORIDA, PLAINTIFF
v.
STATE OF GEORGIA

          Argued January 8, 2018

         ON EXCEPTIONS TO REPORT OF SPECIAL MASTER

         This original action concerns the proper apportionment of water from an interstate river basin. Three rivers form the heart of the Basin. The Chattahoochee and Flint Rivers begin near Atlanta, flow south through Georgia, and ultimately converge at Lake Seminole, just north of Florida, where the Apalachicola River begins and flows 106 miles south into the Gulf of Mexico. In 2013, Florida, the downstream State, sued Georgia, the upstream State, asking the Court to issue a decree equitably apportioning the Basin's waters. The Court agreed to exercise its original jurisdiction and appointed a Special Master. The United States declined to waive its sovereign immunity from suit in the case. After conducting lengthy evidentiary proceedings, the Master submitted a Report recommending that the Court dismiss Florida's complaint. That recommendation, the parties agree, turns on a single issue-namely, whether Florida met its initial burden in respect to redressability. The Master concluded that Florida failed to make the requisite showing because it did not present clear and convincing evidence that its injuries could be redressed by a decree capping Georgia's upstream water consumption if the decree does not also bind the Corps. Florida has filed exceptions to the Master's Report.

         Held:

         1. The Special Master applied too strict a standard in concluding that Florida failed to meet its initial burden of demonstrating that the Court can eventually fashion an effective equitable decree. Pp. 10-18.

(a) Where, as here, the Court is asked to resolve an interstate water dispute raising questions beyond the interpretation of specific language of an interstate compact, the doctrine of equitable apportionment applies. In this realm, several related but more specific sets of principles guide the Court's review. First, both Georgia and Florida possess "an equal right to make a reasonable use of the waters of the Flint River. United States v. Willow River Power Co., 324 U.S. 499, 505. Second, when confronted with competing claims to interstate water, the Court's "effort always is to secure an equitable apportionment without quibbling over formulas." New Jersey v. New York, 283 U.S. 336, 343. Third, in light of the sovereign status and "equal dignity" of States, a complaining State's burden is "much greater" than the burden ordinarily shouldered by a private party seeking an injunction. Connecticut v. Massachusetts, 282 U.S. 660, 669. Among other things, it must demonstrate, by" 'clear and convincing evidence, '" that it has suffered a" 'threatened invasion of rights'" that is" 'of serious magnitude.'" Washington v. Oregon, 297 U.S. 517, 522. And to the extent the Court has addressed the "initial burden" a State bears in respect to redressability, the Court has said that "it should be clear that [the complaining] State has not merely some technical right, but also a right with a corresponding benefit" as a precondition to any equitable apportionment. Kansas v. Colorado, 206 U.S. 46, 102, 109. An effort to shape a decree cannot be "a vain thing." Foster v. Mansfield, C & L. M. R. Co., 146 U.S. 88, 101. Finally, because equitable apportionment is" 'flexible, '" not "formulaic," this Court will seek to "arrive at a' "just and equitable" apportionment' of an interstate stream" by "consider[ing] 'all relevant factors, '" South Carolina v. North Carolina, 558 U.S. 256, 271, including, inter alia, " 'physical and climatic conditions, the consumptive use of water in the several sections of the river, the character and rate of return flows, the extent of established uses, the availability of storage water, the practical effect of wasteful uses on downstream areas, [and] the damage to upstream areas as compared to the benefits to downstream areas if a limitation is imposed on the former.'" Colorado v. New Mexico, 459 U.S. 176, 183. Because all relevant factors must be weighed, extensive and specific factual findings are essential for the Court to properly apply the doctrine of equitable apportionment. See Nebraska v. Wyoming, 325 U.S. 589, 618. Pp. 10-15.
(b) The Special Master applied too strict a standard when he determined that the Court would not be able to fashion an appropriate equitable decree. The Master referred to this as a "threshold" showing. But it is "threshold" only in the sense that the Master has not yet determined key remedy-related matters, including the approximate amount of water that must flow into the Apalachicola River in order for Florida to receive a significant benefit from a cap on Georgia's use of Flint River waters. Unless and until the Special Master makes the findings of fact necessary to determine the nature and scope of likely harm caused by the absence of water and the amount of additional water necessary to ameliorate that harm significantly, the complaining State should not have to prove with specificity the details of an eventually workable decree by "clear and convincing" evidence. Rather, the complaining State should have to show that, applying the principles of "flexibility" and "approximation," it is likely to prove possible to fashion such a decree. To require "clear and convincing evidence" about the workability of a decree before the Court or a Special Master has a view about likely harms and likely amelioration is, at least in this case, to put the cart before the horse. Pp. 15-18.

         2. The Court reserves judgment as to the ultimate disposition of this case, addressing here only the narrow "threshold" question the Master addressed below-namely, whether Florida has shown that its "injur[ies can] effectively be redressed by limiting Georgia's consumptive use of water from the Basin without a decree binding the Corps." Report 30-31. Florida has made a legally sufficient showing as to the possibility of fashioning an effective remedial decree. Pp. 18-37.

(a) The Report makes several key assumptions. First, the Master assumed Florida has suffered harm as a result of decreased water flow into the Apalachicola River. Second, the Master further assumed that Florida has shown that Georgia, contrary to equitable principles, has taken too much water from the Flint River. Third, the Master assumed that Georgia's inequitable use of the water injured Florida. At this stage of the proceeding and in light of these assumptions, Florida made a sufficient showing that the extra water that would result from its proposed consumption cap would both lead to increased streamflow in Florida's Apalachicola River and significantly redress the economic and ecological harm that Florida has alleged. In addition, the United States has made clear that the Corps will cooperate in helping to implement any determinations and obligations the Court sets forth in a final decree in this case. While the Corps must take account of a variety of circumstances and statutory obligations when it allocates water, it cannot now be said that an effort to shape a decree here will prove "a vain thing," Foster, supra, at 101, since the record indicates that, if necessary and with the help of the United States, the Special Master, and the parties, the Court should be able to fashion a decree. Pp. 20-35.
(b) Further findings, however, are needed on all of these evidentiary issues. Florida will be entitled to a decree only if it is shown that "the benefits of the [apportionment] substantially outweigh the harm that might result." Colorado, 459 U.S., at 187. On remand, before fashioning a remedy, the Special Master must address several evidentiary questions that are assumed or found plausible here. Pp. 35-37. Case remanded.

          BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and Kennedy, Ginsburg, and Sotomayor, JJ., joined.

          OPINION

          BREYER, JUSTICE

         This case concerns the proper apportionment of the water of an interstate river basin. Florida, a downstream State, brought this lawsuit against Georgia, an upstream State, claiming that Georgia has denied it an equitable share of the basin's waters. We found that the dispute lies within our original jurisdiction, and we appointed a Special Master to take evidence and make recommendations.

         After lengthy evidentiary proceedings, the Special Master submitted a report in which he recommends that the Court deny Florida's request for relief on the ground that "Florida has not proven by clear and convincing evidence that its injury can be redressed by an order equitably apportioning the waters of the Basin." Report of Special Master 3. The case is before us on Florida's exceptions to the Special Master's Report.

         In light of our examination of the Report and relevant portions of the record, we remand the case to the Master for further findings and such further proceedings as the Master believes helpful.

         I

         A

         This original action arises out of a dispute over the division of water from an interstate river basin known as the Apalachicola-Chattahoochee-Flint River Basin. The Basin drains an area of more than 20, 000 square miles across the southeastern United States. Three interstate rivers form the heart of the Basin and are central to this case. They are the Chattahoochee River, the Flint River, and the Apalachicola River. It is easiest to think of these three rivers as forming the capital letter "Y," with each branch starting at a different point in northeastern Georgia near Atlanta and the stem running through the Florida panhandle and emptying into Apalachicola Bay in the Gulf of Mexico. See Appendix, infra.

         The Chattahoochee River is the western branch of this Y-shaped river system. It runs from the foothills of Georgia's Blue Ridge Mountains, through most of Georgia, down to Lake Seminole, just north of Florida. The United States Army Corps of Engineers operates several dams and reservoirs along the Chattahoochee where it both stores water and controls the amount of water that flows downstream to Florida in accordance with the terms of its recently revised Master Water Control Manual (Master Manual). As we shall discuss in more detail, Part IV, infra, the Corps' operations are important to the resolution of this case.

         The Flint River, the eastern branch of the "Y," runs from just south of Atlanta down to the same lake, namely, Lake Seminole. Unlike the Chattahoochee, there are no dams along the Flint River; it flows unimpeded through southern Georgia's farmland, where the greatest share of the Basin's water is consumed by agricultural irrigation.

         After water from the Flint and Chattahoochee Rivers mixes at Lake Seminole, the mixed water (now forming the stem of the Y) continues its southward journey. At the southern end of Lake Seminole, it flows through the Woodruff Dam-a dam also controlled by the Corps. The mixed waters then change their name. They are called the Apalachicola River, and under that name they flow 106 miles through the Florida Panhandle and finally empty into the Gulf of Mexico. There, the fresh water of the Apalachicola River mixes with the Gulf's saltwater, forming Apalachicola Bay, which the United Nations, the United States, and the State of Florida have all recognized as one of the Northern Hemisphere's most productive estuaries. In total, the Apalachicola River accounts for 35% of the fresh water that flows along Florida's western coast. See Joint Exh. 168, p. 39.

         B

         Florida and Georgia have long disputed the apportionment of the Basin's waters. Florida contends that Georgia is consuming more than its equitable share of Flint River water. It adds that, were Georgia to consume less water from the Flint River, more water would flow into Lake Seminole, pass through the Woodruff Dam and subsequently flow down the Apalachicola River (the Y's stem) and into Apalachicola Bay. The additional water that would result from a cap on Georgia's consumption would, Florida argues, help (among other things) to recover and maintain its oyster industry, which collapsed following a drought in 2012. Georgia believes that it should not have to cut back on its Flint River water consumption because, in its view, it consumes no more than its equitable share.

         "This Court has recognized for more than a century its inherent authority, as part of the Constitution's grant of original jurisdiction, to equitably apportion interstate streams between States." Kansas v. Nebraska, 574 U.S. ___, ___ (2015) (slip op., at 7). But we have long noted our "preference" that States "settle their controversies by 'mutual accommodation and agreement.'" Arizona v. California, 373 U.S. 546, 564 (1963) (quoting Colorado v. Kansas, 320 U.S. 383, 392 (1943) (Kansas II)); see also id., at 392 ("[Interstate] controversies may appropriately be composed by negotiation and agreement, pursuant to the compact clause of the federal Constitution"); Kansas v. Nebraska, supra, at ___ (slip op., at 2-3) (describing codification of Republican River Compact); Montana v. Wyoming, 563 U.S. 368, 372 (2011) (interpreting Yellowstone River Compact); Kansas v. Colorado, 543 U.S. 86 (2004) (resolving dispute over Arkansas River Compact).

         We recognize that Florida and Georgia (sometimes with the help of the Federal Government) have long tried to do so. But so far they have failed.

         In 1992, for example, the States signed a memorandum of agreement in which they "committed to a process for cooperative management and development" of the three-river Basin and agreed to "participate fully as equal partners" in a "comprehensive, basin-wide study" of its waters. Joint Exh. 004, at 1. Five years later, the States signed- and Congress approved-a compact, the Apalachicola-Chattahoochee-Flint River Basin Compact, in which they agreed:

"to develop an allocation formula for equitably apportioning the surface waters of the ACF Basin among the states while protecting the water quality, ecology and biodiversity of the ACF." 111 Stat. 2222-2223.

         But five years of negotiations under the Compact proved fruitless, and in 2003, the Compact expired.

         More than a decade later, in 2014, Congress again recognized the need for an equitable apportionment of Basin waters. See Water Resources Reform and Development Act of 2014, Pub. L. 113-121, §1051(a), 128 Stat. 1259. But once again, despite drought, expanding city populations, and a dramatic increase in acreage devoted to agricultural irrigation, no agreement has been reached. The "last effort to reach an amicable resolution of this complex equitable apportionment proceeding" in 2017 was "unsuccessful." Report 24. The States instead have come to this Court.

         II

         A

         In 2013, Florida, the downstream State, sought to sue Georgia, the upstream State, asking us to exercise our "original and exclusive jurisdiction" and issue a decree equitably apportioning the waters of the Basin. 28 U.S.C. §1251(a); see U.S. Const. Art. Ill. §2; see also this Court's Rule 17. In its complaint, Florida alleged that Georgia's consumption of Flint River water "reduce[s] the amount of water flowing to the Apalachicola River at all times," and noted that "the effects are especially apparent during the low flow summer and fall periods." Complaint 9, ¶21; see also id., at 17, ¶49 (complaining that the impact of Georgia's water consumption "is significant, particularly during dry periods"). In addition, Florida alleged that "[a]s Georgia's upstream storage and consumption grows over time, low flow events will become more frequent and increase in severity, diminishing the likelihood that key species will survive and precluding any chance of recovery over the long term." Id., at 20, ¶59. To remedy these harms, Florida seeks a cap on Georgia's consumption of water from the Flint River. Id., at 21.

         Georgia filed a brief in opposition, arguing that Florida failed to allege an injury sufficient to warrant this Court's exercise of original jurisdiction. See State of Georgia's Opposition to Florida's Motion for Leave to File a Complaint 31 ("Florida has not pleaded facts plausibly suggesting that it will be able to establish clear and convincing evidence that it suffers substantial injury as a result of Georgia's consumption of water"). At our request, the United States filed a brief in which it told us that "Florida has pleaded an interstate water dispute of sufficient importance to warrant this Court's exercise of its original jurisdiction, and no other judicial forum is suitable for resolving the overall controversy." Brief for United States as Amicus Curiae 12 (Sept. 18, 2014). But, the United States also warned that "[p]ractical considerations . . . weigh against the Court's resolution of Florida's claims before the Corps has completed its process of updating the Master Manual for the federal projects in the ACF Basin." Ibid. It suggested that the Court could "grant Florida leave to file, but stay or provide for tailoring of any further proceedings until the Corps has issued the revised Master Manual" in March 2017, id., at 13 (which Florida has now done, see Brief for United States as Amicus Curiae 3, n. 1, 10-12).

         We subsequently agreed to exercise our original jurisdiction and appointed a Special Master "with authority to . . . direct subsequent proceedings," "take such evidence as may be introduced and such as he may deem it necessary to call for," and "submit Reports as he may deem appropriate." 574 U.S. ___ (2014).

         At the outset, the United States declined to waive its sovereign immunity from suit in this case. And shortly thereafter, Georgia asked the Special Master to dismiss the case on the grounds that the United States was a necessary party but could not be forced to intervene. See Fed. Rule Civ. Proc. 19(b). The Master concluded that the motion to dismiss Florida's complaint should be denied. The Master reasoned that a decree binding the Corps might not prove necessary. Order on State of Georgia's Motion To Dismiss 14-15 (June 19, 2015). Rather, the Master concluded that "the few facts before me at this stage of the proceeding support the conclusion that" a cap on Georgia's Flint River water consumption could, at least in principle, redress Florida's injuries either by increasing the amount of water that flows into Florida's Apalachicola River or by "render[ing] periods of reduced flow releases [into the Apalachicola River] fewer and further between because of the increased reservoir levels that would result from Georgia's reduced consumption." Id., at 14, and n. 5. The Special Master pointed out that Florida would have to show that "a consumption cap is justified and will afford adequate relief." Id., at 13.

         B

         The Master then held lengthy discovery and evidentiary proceedings. See Brief for Georgia 11; post, at 23 (opinion of THOMAS, J.) ("During their 18 months of discovery, the parties produced 7.2 million pages of documents"). Ultimately, the Master submitted a 70-page Report to this Court in February 2017. He recommended that the Court dismiss Florida's complaint. In particular, despite the very large factual record amassed and "the extensive testimony bearing on numerous issues," the Special Master stated:

"I have concluded that there is a single, discrete issue that resolves this case: even assuming that Florida has sustained injury as a result of unreasonable upstream water use by Georgia, can Florida's injury effectively be redressed by limiting Georgia's consumptive use of water from the Basin without a decree binding the [Army] Corps [of Engineers]? I conclude that Florida has not proven that its injury can be remedied without such a decree. The evidence does not provide sufficient certainty that an effective remedy is available without the presence of the Corps as a party in this case." Report 30-31 (emphasis added).

         For present purposes, we note that Florida and Georgia agree that the Master's recommendation "turned on a 'single, discrete issue'-whether Florida had shown that a cap on Georgia's consumption would redress its injury if the decree did not bind the Corps as well." Florida Brief in Support of Exceptions 23-24; see also Georgia's Reply to Florida's Exceptions 23 ("The Special Master reserved ruling on any issue other than effective redress"); Brief for United States as Amicus Curiae 19-20 (Aug. 7, 2017) (same).

         In reviewing this determination, we do not agree with the dissent's view that the Master applied the "ordinary balance-of-harms test" that our equitable apportionment cases require. Post, at 14 (opinion of THOMAS, J.); see also Part III-A, infra, (describing equitable apportionment doctrine). As we shall explain, the dissent's assertion that "the balance of harms cannot tip in Florida's favor" is, at best, premature. Post, at 34-35. That judgment may eventually prove right or it may prove wrong. Here, as we just said, we consider only the "single" and "threshold" question of "redressability" upon which the Master rested his conclusion and which the parties have now argued here. In determining precisely what we now review, we rely upon (and do not go beyond) the Report's specific and key statements, which include the following:

"As a threshold matter, equitable apportionment is only available to a state that has suffered 'real and substantial injury' as a result of proposed or actual upstream water use" and "the injury must be re-dressable by the Court" Report 24 (emphasis added).
• "Florida points to real harm and, at the very least, likely misuse of resources by Georgia. There is little question that Florida has suffered harm from decreased flows in the [Apalachicola] River," including "an unprecedented collapse of its oyster fisheries in 2012." Id., at 31.
• "Much more could be said and would need to be said on these [and other] issues . . . ." Id., at 34.
• "I need only address the narrow question of which party bears the burden of proving injury and re-dressability." Id., at 28-29 (emphasis added).
• "Florida bears the burden to prove that the proposed remedy will provide redress for Florida's injury." Id., at 30.
• "Florida has not proven by clear and convincing evidence that any additional streamflow in the Flint River or in the Chattahoochee River would be released from Jim Woodruff Dam into the Apalachicola River at a time that would provide a material benefit to Florida (i.e., during dry periods), thereby alleviating Florida's injury." Id., at 47 (emphasis added).
• "Florida has provided no evidence that a decree in this case could provide an effective remedy during normal (i.e., non-drought) periods." Id., at 68.
• "[T]he Corps can likely offset increased streamflow in the Flint River by storing additional water in its reservoirs along the Chattahoochee River during dry periods [and so] . . . [t]here is no guarantee that the Corps will exercise its discretion to release or hold back water at any particular time." Id., at 69 (emphasis added).
• "[W]ithout the Corps as a party, the Court cannot order the Corps to take any particular action." Id., at 69-70.

         C

         Florida has filed exceptions to the Special Master's Report. Florida first challenges the legal standard the Master applied in resolving what the Master called the "threshold" question whether Florida had "proven. . . that its injury can be redressed by an order equitably apportioning the waters of the Basin." Id., at 24, 3. The Master wrote that Florida must meet a "clear and convincing evidence" evidentiary burden. Id., at 3. Second, Florida argues that, in any event, its showing in respect to re-dressability was sufficient. We consider each of these exceptions in turn.

         III

         A

         We note at the outset that our role in resolving disputes between sovereign States under our original jurisdiction "significantly differs from the one the Court undertakes 'in suits between private parties." Kansas v. Nebraska, 574 U.S., at ___ (slip op., at 6) (internal quotation marks and alterations omitted). "In this singular sphere," we have observed, "'the court may regulate and mould the process it uses in such a manner as in its judgment will best promote the purposes of justice.'" Id., at(slip op., at 6-7) (quoting Kentucky v. Dennison, 24 How. 66, 98 (1861)). We must approach interstate disputes "in the untechnical spirit proper for dealing with a quasi-international controversy, remembering that there is no municipal code governing the matter, and that this court may be called on to adjust differences that cannot be dealt with by Congress or disposed of by the legislature of either State alone." Virginian. West Virginia, 220 U.S. 1, 27 (1911) (Holmes, J.).

         Where, as here, the Court is asked to resolve an interstate water dispute raising questions beyond the interpretation of specific language of an interstate compact, the doctrine of equitable apportionment governs our inquiry. See Colorado v. New Mexico, 459 U.S. 176, 183 (1982) (Colorado I); Virginia v. Maryland, 540 U.S. 56, 74, n. 9 (2003) ("Federal common law governs interstate bodies of water, ensuring that the water is equitably apportioned between the States and that neither State harms the other's interest in the river"). In this realm, we have kept in mind several related but more specific sets of principles.

         First, as the Special Master pointed out, "the relevant guiding principle in this case" is a simple one. Report 26-27. Given the laws of the States, both Georgia and Florida possess "'an equal right to make a reasonable use of the waters of the stream'"-which, in this case, is the Flint River. Id., at 26 (quoting United States v. Willow River Power Co., 324 U.S. 499, 505 (1945)); see also Colorado I supra, at 184 ("Our prior cases clearly establish that equitable apportionment will only protect those rights to water that are 'reasonably required and applied.' . . . [W]asteful or inefficient uses will not be protected (quoting Wyoming v. Colorado, 259 U.S. 419, 484 (1922))); Idaho ex rel. Evans v. Oregon, 462 U.S. 1017, 1025 (1983) (Idaho II) ("States have an affirmative duty under the doctrine of equitable apportionment to take reasonable steps to conserve and even to augment the natural resources within their borders for the benefit of other States"); Nebraska v. Wyoming, 325 U.S. 589, 618 (1945); Kansas II, 320 U.S., at 394; Washington v. Oregon, 297 U.S. 517, 522, 527-528 (1936); New Jersey v. New York, 283 U.S. 336, 342-343 (1931); North Dakota v. Minnesota, 263 U.S. 365, 372 (1923) (reaffirming that an upstream State may not "burden his lower neighbor with more than is reasonable"); Kansas v. Colorado, 206 U.S. 46, 102 (1907) (Kansas I); Tyler v. Wilkinson, 24 F. Cas. 472, 474 (No. 14, 312) (CC RI 1827) (Story, J.) (setting forth the principle of "reasonable use).

         Second, our prior decisions emphasize that, when we are confronted with competing claims to interstate water, the Court's "effort always is to secure an equitable apportionment without quibbling over formulas." New Jersey v. New York, 283 U.S., at 342-343 (Holmes, J.). Where "[b]oth States have real and substantial interests in the River," those interests "must be reconciled as best they may be." Id., at 342-343. We have added that "[uncertainties about the future ... do not provide a basis for declining to fashion a decree." Idaho II, 462 U.S., at 1026; see also ibid. ("Reliance on reasonable predictions of future conditions is necessary"); Colorado v. New Mexico, 467 U.S. 310, 322 (1984) (Colorado II) (requiring "absolute precision in forecasts . . . would be unrealistic"); North Dakota v. Minnesota, supra, at 386 (emphasizing the need to "draw inferences as to the probabilities"); Kansas I, supra, at 97-98.

         Third, in light of the sovereign status and "equal dignity" of States, a complaining State must bear a burden that is "much greater" than the burden ordinarily shouldered by a private party seeking an injunction. Connecticut v. Massachusetts, 282 U.S. 660, 669 (1931); see Kansas II, supra, at 392 ("The reason for judicial caution in adjudicating the relative rights of States in such cases is that, while we have jurisdiction of such disputes, they involve the interests of quasi-sovereigns, present complicated and delicate questions, and, due to the possibility of future change of conditions, necessitate expert administration rather than judicial imposition of a hard and fast rule" (footnote omitted)). In particular, "'[b]efore this court can be moved to exercise its extraordinary power under the Constitution to control the conduct of one State at the suit of another, '" the complaining State must demonstrate that it has suffered a "'threatened invasion of rights'" that is "'of serious magnitude.'" Washington v. Oregon, supra, at 524 (quoting New York v. New Jersey, 256 U.S. 296, 309 (1921)). The State must make that showing by "'clear and convincing evidence.'" Washington v. Oregon, supra, at 522 (quoting New York v. New Jersey, supra, at 309); see also Idaho II, supra, at 1027 ("A State seeking equitable apportionment under our original jurisdiction must prove by clear and convincing evidence some real and substantial injury or damage"); Colorado I, supra, at 187-188, n. 13 ("[A] state seeking to prevent or enjoin [an upstream] diversion by another State" must "bear the initial burden of showing that a diversion by [the upstream State] will cause substantial injury to [the downstream State's] interests" (emphasis added)).

         In addition, to the extent the Court has addressed the "initial burden" a State bears in respect to redressability, our prior decisions make clear that, as a general matter, "[t]o constitute a justiciable controversy, it must appear that the complaining State has suffered a wrong through the action of the other State, furnishing a ground for judicial redress, or is asserting a right against the other State which is susceptible of judicial enforcement according to the accepted principles of the common law or equity systems of jurisprudence." Massachusetts v. Missouri, 308 U.S. 1, 15 (1939)); see also Wyoming v. Oklahoma, 502 U.S. 437, 447, 452 (1992) (same); Maryland v. Louisiana, 451 U.S. 725, 735-736 (1981). More specifically, we have said that "it should be clear that [the complaining] State has not merely some technical right, but also a right with a corresponding benefit" as a precondition to any equitable apportionment. Kansas I, supra, at 109. An effort to shape a decree cannot be "a vain thing." Foster v. Mansfield, C. & L. M. R. Co., 146 U.S. 88, 101 (1892). A State "will not be granted [relief] against something merely feared as liable to occur at some indefinite time in the future," Connecticut v. Massachusetts, supra, at 674, or when there is "no other or better purpose [at stake] than to vindicate a barren right." Washington v. Oregon, supra, at 523; cf. Idaho II, supra, at 1026 (assessing whether "the formulation of a workable decree is impossible").

         Fourth, in an interstate water matter, where a complaining State meets its "initial burden of showing 'real or substantial injury, '" Colorado II, supra, at 317 (quoting Colorado I, 459 U.S., at 188, n. 13), this Court, recalling that equitable apportionment is "'flexible, '" not "formulaic," will seek to "arrive at a '"just and equitable" apportionment' of an interstate stream" by "considering] 'all relevant factors.'" South Carolina v. North Carolina, 558 U.S. 256, 271 (2010) (quoting Colorado I, 459 U.S., at 183); see also id., at 190 ("Whether [relief] should be permitted will turn on an examination of all factors relevant to a just apportionment"); Kansas II, 320 U.S., at 393-394 ("[I]n determining whether one State is using, or threatening to use, more than its equitable share of the benefits of a stream, all the factors which create equities in favor of one State or the other must be weighed") (emphasis added). These factors include (but are not limited to):

"physical and climatic conditions, the consumptive use of water in the several sections of the river, the character and rate of return flows, the extent of established uses, the availability of storage water, the practical effect of wasteful uses on downstream areas, [and] the damage to upstream areas as compared to the benefits to downstream areas if a limitation is imposed on the former." Nebraska v. Wyoming, 325 U.S., at 618.

         Because "all the factors which create equities in favor of one State or the other must be weighed," Kansas II, supra, at 394 (emphasis added), extensive and "specific factual findings" are essential for the Court to properly apply the doctrine of equitable apportionment. Colorado I, supra, at 189-190 (emphasis added). And given the complexity of many water-division cases, the need to secure equitable solutions, the need to respect the sovereign status of the States, and the importance of finding flexible solutions to multi-factor problems, we typically appoint a Special Master and benefit from detailed factual findings.

         Without the full range of factual findings, we have said, the Court may lack an adequate basis on which to make "the delicate adjustment of interests" that the law requires. Nebraska v. Wyoming, supra, at 618; Washington v. Oregon, 297 U.S., at 519, 523-524 (emphasizing that "the Master's Report finds the facts fully"); see also Colorado I, supra, at 183, 189-190 (remanding "with instructions to the Special Master to make further findings of fact"); Colorado II, 467 U.S., at 312-315 (explaining that because "the Master's report [was] unclear," the Court remanded to the Special Master "for additional factual findings on five specific issues" even after "a lengthy trial at which both States presented extensive evidence" in order "to assist this Court in balancing the benefit and harm"); Texas v. New Mexico, 462 U.S. 554, 575-576, and n. 21 (1983) ("[W]e return this case to the Special Master for determination of the unresolved issues framed in his pretrial order"); 3 A. Kelley, Water and Water Rights §45.02(c), p. 45-14 (3d ed. 2018) ("If the factual findings in the report are insufficient for the Court to decide whether the master correctly applied the doctrine of equitable apportionment, the Court may refer the case back to the master for additional findings").

         B

         Applying the principles just described, we conclude that the Special Master applied too strict a standard when he determined that the Court would not be able to fashion an appropriate equitable decree. See Report 3 ("Florida has not proven by clear and convincing evidence that its injury can be redressed by an order equitably apportioning the waters of the Basin"); see also id., at 31 ("The evidence does not provide sufficient certainty that an effective remedy is available without the presence of the Corps as a party in this case").

         The Special Master referred to the relevant showing that Florida must make in this respect as a "threshold" showing. Report 24. We agree that the matter is "threshold" in one particular sense-namely, the sense that the Master has not yet determined several key remedy-related matters, including the approximate amount of water that must flow into the Apalachicola River in order for Florida to receive a significant benefit from a cap on Georgia's use of Flint River waters. See infra, at 28. The Master also wrote that Florida had failed to show "with sufficient certainty that the Corps must (or will choose to) operate its projects so as to permit all additional flows in the Flint River" or "the entire marginal increase in streamflow" to reach Florida "without any substantial delay." Id., at 48 (emphasis added); see also id., at 24, 70 (similar). He added that there "is no guarantee" that the Corps will exercise its relevant discretion. Id., at 69 (emphasis added). And he said that Florida must show the existence of a workable remedy by "clear and convincing evidence." Id., at 3; see also, e.g., id., at 28-29, 47, 51, 69-70.

         We believe the Master's standard, as indicated by these statements, is too strict. In our view, unless and until the Special Master makes the findings of fact necessary to determine the nature and scope of likely harm caused by the absence of water and the amount of additional water necessary to ameliorate that harm significantly, the complaining State should not have to prove with specificity the details of an eventually workable decree by "clear and convincing" evidence. Rather, the complaining State should have to show that, applying the principles of "flexibility" and "approximation" we discussed above, it is likely to prove possible to fashion such a decree. See supra, at 12.

         To require more definite proof at the outset may well (at least on some occasions) make little sense. Suppose, for example, downstream State A claims that upstream State B wastes at least 10, 000 cubic feet per second (cfs) of water. And suppose further that no decree could enforce a 10, 000 cfs consumption cap but that it may well prove possible to enforce a lesser requirement. If so, we would have to know at least approximately how much water will significantly ameliorate State As water problem before we could know whether it is possible to shape a workable decree. And the workability of decrees themselves, approximate as they may be, may depend upon more precise findings in respect to the nature and scope of the range of likely harms and likely benefits that a Special Master finds are actually likely to exist. To require "clear and convincing evidence" about the workability of a decree before the Court or a Special Master has a view about likely harms and likely amelioration is, at least in this case, to put the cart before the horse. And that, we fear, is what the Master's statements, with their apparent references to a "clear and convincing" evidence standard in respect to "redressability" (where that refers to the availability of an eventual decree) have done here. Cf. post, at 17-19.

         That is also why our cases, while referring to the use of a "clear and convincing" evidentiary standard in respect to an initial showing of "invasion of rights" and "substantial injury," have never referred to that standard in respect to a showing of "remedy" or "redressability." See Nebraska v. Wyoming, 515 U.S. 1, 8 (1995) (repeating that as a threshold matter, a "'threatened invasion of rights must be of a serious magnitude and it must be established by clear and convincing evidence'" without addressing the required initial burden in respect to remedy (quoting New York v. New Jersey, 256 U.S., at 309)); Colorado II, supra, at 317 (describing the "initial burden" a State bears to show "'real or substantial injury'" (quoting Colorado I, 459 U.S., at 187-188, n. 13)); Idaho II, 462 U.S., at 1027; Colorado I, supra, at 187-188, and n. 13 ("[A] State seeking to prevent or enjoin [an upstream] diversion by another State" must "bear the initial burden of showing that a diversion by [the upstream State] will cause substantial injury to [the downstream State's] interests" (emphasis added)); Washington v. Oregon, 297 U.S., at 522; Connecticut v. Massachusetts, 282 U.S., at 672; New Jersey v. New York, 283 U.S., at 344-345; Kansas II, 320 U.S., at 393-394. The dissent does not dispute this. See post, at 12.

         As discussed, supra, at 12-13, our prior decisions have said that the "right" a complaining State asserts must be more than "merely some technical right" and must be "a right with a corresponding benefit," Kansas I, 206 U.S., at 109 (emphasis added)-an effort to shape an equitable apportionment decree cannot be "a vain thing." Foster, 146 U.S., at 101; see also Idaho II, supra, at 1026 (assessing whether "the formulation of a workable decree is impossible"); Washington v. Oregon, supra, at 523. But these statements apply to the general availability of judicial relief-not to the details of a final decree or to the workability of a decree that will depend on those details. Cf. Idaho ex rel. Evans v. Oregon444 U.S. 380, 392 (1980) (Idaho I) (explaining that the question whether a State's proposed remedy will have an "appreciable effect" is a question that "goes to the merits" of the equitable apportionment inquiry). And, of course, to insist upon the use of such a strict standard, in respect to an eventual ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.