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Ch1 PP5 Managing Governmental Conflicts (Hooch) (2.7.08)

Ch1 PP5 Managing Governmental Conflicts (Hooch) (2.7.08) -...

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Unformatted text preview: CH1. Why We Have Law PP5. Management of Governmental Conflicts Legal Reading Article: The Battle over the "Hooch" Lesson: One reason we have law is to manage governmental conflicts Some Relevant Terms Defined To understand the reading and its lesson, you need to understand certain of the terms it uses: Legal doctrine = legal principle Compact = agreement between two or more governments Congressional apportionment = allocation by Congress of a resource between States Some Relevant Terms Defined, cont. Equitable apportionment = when the courts decide what is just use of a resource that is in dispute between two or more States De jure = according to law De facto = according to custom, history Riparian rights = rights of a landowner whose land borders a body of water The `Hooch' The Hooch, one of the principal rivers in the Southeast, runs from its source in the northeast mountains of Georgia (GA) across a large portion of the border between western GA and eastern Alabama (AL) to its junction with the Flint River near the Florida (FL) border on the south Along its southwesterly route it passes the city of Atlanta Hooch is developed by a series of dams Buford Dam, which forms Lake Sidney Lanier, is the largest source of water for the Atlanta metropolitan area The lake is "owned, operated, and managed" by the U.S. Army Corps of Engineers, which has the primary voice in water control management projects Hooch is a vital source of water for hydroelectric power and other related uses Government Dispute: GA v. AL Beginning in 1986, the Army Corps of Engineers entered into contracts with local municipalities in GA to increase water withdrawals from Lake Lanier In 1989 the Corps proposed to permit further withdrawals from Lake Lanier AL filed suit to stop the proposed contracts Why? The Agreement Around the same time, an agreement was signed that committed AL, GA, FL and the Army Corps of Engineers to a "process for cooperative management and development of regional water resources" The Agreement The agreement required a 3-year comprehensive study of local water resources This action defused the immediate danger of lengthy and expensive litigation and encouraged constructive input from the parties During this time, the Army Corps of Engineers would withdraw its 1989 proposals to reallocate water from Lake Lanier, while AL would request that its lawsuit against the Corps be placed on an inactive docket Potential Problems with the Agreement (1) The Agreement could be viewed as: a delaying tactic, having little effective binding power, and having little or no enforceability (2) The parties may not agree to the initial system for handling the water rights dispute (3) Even if the initial system is agreed to, the dispute resolution tools agreed to in the agreement (negotiation & non-binding mediation) can still result in litigation if the parties disagree (Continued on Next Slide) Potential Problems, cont. (4) The parties to the preliminary agreement may not be negotiating from the same relative positions of power To understand the dispute and its proposed solutions... It is helpful to have familiarity with the two water rights doctrines that dominated U.S. law: Prior Appropriation Doctrine (PAD) PAD = prior in time is prior in right PAD emerged as the dominant for water rights doctrine west of the Mississippi (where there were arid and semi-arid lands) Cont. on next slide Appropriation of water right under PAD One acquires a property right (an appropriation) by taking the water of a natural stream and applying it to "beneficial use" Cease use and you lose that right The earliest appropriator senior rights subsequent appropriators junior (lesser) rights If and when the water supply can no longer meet the demands of all appropriators, the most junior appropriator must cease taking water so that the more senior appropriators will continue to have water available Riparian Water Rights Doctrine (RWRD) RWRD applied to water east of the Mississippi where water was more plentiful Waters are classified as either: Diffused surface waters Waters in a watercourse Cont. on next slide Which Doctrine applies to the AL-GA Dispute? Riparian rights attach only to waters in watercourses (e.g., Hooch) Thus, RWRD applied to the AL-GA dispute Possible Solution To The Riparian Dispute So who had riparian rights to the Hooch? In 1859 the U.S. Supreme Court ruled that when GA sold its rights to all of its territory west of the Chattahoochee in 1802, it specifically intended to maintain control of The Hooch AL--Counter Argument GA's acquiescence to AL's use of the Hooch changed the original agreement (a de facto argument) Specific language found in documents describing territorial boundaries is not always interpreted by the U.S. Supreme Court to provide absolute rights to one State over the other over time AL always had navigation rights on the river AL had been withdrawing water from the river, and this fact was known by GA officials GA voluntarily ceded to AL at least a portion of its right to control the Hooch by allowing AL to discharge waste into it So are there other methods for resolving this dispute? Congressional Apportionment (CA) The U.S. Constitution (Article I, Section 8) gives Congress the authority to apportion waters of interstate rivers, through its use of the power to regulate commerce among the states Through the Supremacy Clause (i.e., Federal law and treaties made in furtherance of the Constitution are supreme over state law) But CA is rarely used because of political reasons. Litigation and The Equitable Apportionment Doctrine The U.S. Supreme Court has original jurisdiction and is the final arbiter of these disputes, but: The Supreme Court as an institution is not equipped to deal with the mass of economic and environmental impact data introduced into evidence in equitable apportionment litigation Not surprisingly, in the first equitable apportionment announced by the U.S. Supreme Court, it was decided that states should follow a sharing rule Interstate Compacts The U.S. Constitution's Compact Clause (Article I, Section 10, Clause 3) enables States to construct agreements with other States if they have congressional approval An advantage of this approach is that the States are likely to create political institutions (e.g., an Interstate Water Management Commission) that can help break down barriers that have prevented more effective interstate discussion and cooperation in water management The latest news I read about the dispute indicated that AL, GA & FL entered into two interstate water Compacts that allow the governors of each state and one federal appointee to analyze the study's finding and divide the water supplies accordingly. Issues to Consider Despite the power of governments, these entities, like private citizens and businesses, can get into disputes with all three E.g., Private citizens suing the federal government over tax issues E.g., State governments suing the federal government over release of federal transportation funds What are the issues that the GA-AL-FL Compacts are likely to consider in reaching a resolution? ...
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