Typically, the real legal maneuvering begins once a lawsuit is filed.
But the latest legal battle in the 20-year “water wars” involving Georgia and Florida isn’t your ordinary legal challenge, starting with the team of lawyers on either side.
Since October, when the U.S. Supreme Court accepted Florida’s newest claim against Georgia, there’s been considerable drama, from an appointed special master’s rants against the media to a flurry of subpoenas to governments and agencies in both states.
But particularly, there have been hints the sides are closer to agreement.
“The parties continue to work cooperatively to arrange a meeting between Georgia Gov. Nathan Deal and Florida Gov. Rick Scott to the potential for settlement of this dispute,” states an April 3 Florida filing in the case.
Ryan Rowberry, a Georgia State University law professor who once served as a lawyer representing Florida, for one, isn’t surprised by the friendly movement.
Just the court’s acceptance of the case alone — after a couple years of Georgia with the apparent upper hand — “ratchets up the pressure on Georgia,” he said.
“That’s when you start getting, ‘Hey, we should try to work this out outside the courts,’ and that’s when you get the movement for (Georgia Gov. Nathan) Deal and (governors) of Florida and Alabama to get together,” said Rowberry, who still closely watches the case.
Also, what could fuel talks is the amount of time and taxpayer money it might take to resolve issues through the courts.
“For a case like this, it’s going to be about three to five years to assemble all the evidence,” Rowberry said. “Really, the only people profiting from it are lawyers and … hydrologists.”
He also noted that this case is somewhat different than previous legal water-sharing battles, which seemed to focus on whether Congress had intended Lake Lanier to be a water spigot for thirsty metro Atlantans.
The courts eventually determined water supply was an authorized use.
The latest arguments focus on the economic impact of Georgia’s water withdrawals from the Apalachicola-Chattahoochee-Flint river basin, including Lanier, on Florida’s oyster and seafood industry in the Apalachicola Bay.
“That’s a valid economic concern and there’s some Supreme Court precedent to back up Florida’s claim,” Rowberry said.
In its Nov. 3 complaint, Florida alleged “large and ever-increasing amounts of water” have been consumed for government, industrial, recreational and agricultural uses permitted by Georgia.
“These uses are forcing Floridians to shoulder the heavy burden of Georgia’s growth,” Florida has charged.
Georgia, meanwhile, has denied that the Apalachicola region is “suffering serious harm.”
In its Jan. 8 response, Georgia stated: “Those allegations are inconsistent with Gov. Scott’s representation to the Department of Commerce that the collapse was caused by drought conditions and illegal overharvesting.
“Florida should therefore be (prevented) from arguing that Georgia’s ... water use caused a decline in oyster populations in the Apalachicola Bay.”
Stepping in between the parties is Ralph I. Lancaster, a lawyer from Portland, Maine, serving as special master.
Appointed by the Supreme Court, Lancaster is authorized to set the time and conditions for the filing of additional pleadings, direct the proceedings, summon witnesses and issue subpoenas.
He’s has been forceful from the get-go, especially in his advice to parties in dealing with the media.
“My long-term experience with them is that they will take things out of context, and you’ll be trying to explain them for the rest of your lives,” Lancaster said early on.
And then, in an April 7 transcript, he told lawyers, “I think the media is relentless and ruthless. And so they will do everything they can to publish everything that they can find out.”
In that same conversation, he prods the lawyers. “Let’s talk a little bit about settlement discussions.”
“I’m a little more encouraged after having read what I read about the Iran negotiations, because apparently nothing is beyond settlement,” Lancaster said.
On April 2, Florida and Georgia were able to agree on something — asking Lancaster to declare “any and all settlement negotiations” between the states confidential and inadmissible.
“If you’re concerned about the media and confidentiality, you will be careful what your spokespersons are saying,” Lancaster told lawyers on April 7.
This past week, when asked about the case, Deal spokesman Brian Robinson said, “Per the special master, the governor’s office is not allowed to discuss this topic.”
Scott spokesman John Tupps couldn’t be reached for comment.
In a March 17 chat with lawyers, Lancaster encouraged mediation between the parties, citing an offer from the United States.
“As I have said before, this thing is going to cost millions, if not billions, of dollars before we’re finished,” he said. “... I have said before and I will continue to say, until you’re sick and tired of hearing it, that I think that the best possible result is a settlement between the two states.”
Clyde Morris, lawyer for the Gainesville-based Lake Lanier Association said he believes “it’s going to be pretty important to see” how Lancaster handles one of the case’s earliest tests — Georgia’s motion to dismiss the suit based on the failure to include the U.S. as a party.
“Florida’s alleged injuries stem from purportedly inadequate flows from Georgia into the Apalachicola River,” Georgia’s motion states.
“But the amount of water that flows into the Apalachicola River is controlled by the United States through its operation of the Woodruff Dam and the integrated system of federal dams and reservoirs upstream on the Chattahoochee.”
The Army Corps of Engineers operates Lake Lanier.
“The (U.S.) isn’t inclined to join the fray, nor is Florida interested in having them join the fray,” Morris said.
Another piece of drama unfolding in the case is Florida issuing a subpoena to the Apalachicola-Chattahoochee-Flint Stakeholders for documents.
The ACF Stakeholders is a private group seeking its own solution to the water-sharing conflict. It has a confidentiality agreement among members — a wide array of people who benefit from the basin and live in Georgia, Alabama and Florida — as it develops its “sustainable water management” plan.
ACF lawyers “are discussing with (Florida) what a proper response is (to the subpoena),” said Jim McClatchey, the organization’s chairman. “But we intend to fulfill our responsibility under (it).”
The group’s next meeting is May 12-13 in Apalachicola to continue talking about the plan.
“I would characterize it as coming along well,” McClatchey said. “I don’t want to prejudice what the group may do, but we’ve made an awful lot of progress and we’re feeling good about where we are.”
As far as when the plan may be released publicly, “I think I can give a better answer to that question after May 13.”