Alabama v. U.S. Army Corps of Engineers

• Decision Date: 10 August 2005
• Docket Number: No. CV-90-BE-1331-E.,CV-90-BE-1331-E.
• Citation: 382 F.Supp.2d 1301
• Parties: State of ALABAMA, Plaintiff, and State of Florida, Intervenor-Plaintiff v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

382 F.Supp.2d 1301

State of ALABAMA, Plaintiff, and State of Florida, Intervenor-Plaintiff v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

No. CV-90-BE-1331-E.

United States District Court, N.D. Alabama, Eastern Division.

August 10, 2005.

COPYRIGHT MATERIAL OMITTED

John M. Johnson, Warren B. Lightfoot, William S. Cox, III, Nikaa Baugh Jordan, W. Larkin Radney, IV, Lightfoot Franklin & White LLC, Joel M. Kuehnert, Matthew H. Lembke, Bradley Arant Rose & White, Andrew P. Campbell, Caroline Smith Gidiere, Charles W. Reed, Jr., Campbell Waller & Poer LLC, Birmingham, AL, R. Craig Kneisel, William D. Little, III, Office of the Attorney General, Montgomery, AL, John W. Costigan, Teri L. Donaldson, F. Perry Odom, State of Florida Department of Environmental Protection, Jonathan A Glogau, Christopher M. Kise, Florida Attorney General's Office, Department of Legal Affairs P.L.-01, Tallahassee, FL, Thomas R. Wilmoth, Donald G. Blankenau, Fennemore Craig PC, Lincoln, NE, Sharon M. Mattox, Vinson & Elkins LLP, Houston, TX, James T. Banks, Hogan & Hartson LLP, Washington, DC, Lauren J. Caster, Fennemore Craig PC, Phoenix, AZ, Parker D. Thomson, Hogan & Hartson LLP, Miami, FL, for Plaintiffs.

Adrienne A. Allen, Deborah Shoemake, Joseph A. Gonzales, U.S. Army Corps of Engineers, District Counsel, Mobile, AL, Anthony P. Hoang, Charles W. Findlay, III, Robin N. Michael, Ruth Ann Storey, U.S. Department of Justice, Environment & Natural Resources, Washington, DC, George C. Batcheler, City of Irondale, Irondale, AL, John C. Bell, Sharon D. Simmons, Alice H. Martin, U.S. Attorney's Office, William N. Clark, Redden Mills &amp Clark, Eddie Leitman, Lynne StephensO'Neal, Christopher R. Hood, Leitman Siegal & Payne, PC, James S. Robinson, James S. Robinson PC, Birmingham, AL, Barbara H. Gallo, Epstein Becker & Green PC, Isaac Byrd, Robert S. Bomar, Thurbert E. Baker, Georgia State Attorney General's Office, R. Todd Silliman, Bruce P. Brown, Clay C. Long, Jack H. Watson, Jr., Geroge W. Darden, Phillip A. Bradley, McKenna Long & Aldridge LLP, Edward A. Kazmarek, Kilpatrick Stockton LLP, Lewis B. Jones, Patricia T. Barmeyer, King & Spalding LLP, Andrew M. Thompson, Stephen E. O'Day, Smith Gambrell & Russell LLP, Atlanta, GA, Clyde Y Morris, Jr., Alpharetta, GA, Paul E. Andrew, Lawrenceville, GA, for Defendants.

J. Greg Allen, Beasley Allen Crow Methvin Portis & Miles PC, Ray Vaughan, Wildlaw, Montgomery, AL, for Amicus.

MEMORANDUM OPINION

BOWDRE, District Judge.

Before the court are Florida's [second] Motion to Amend (Doc. 269) and Alabama's [second] Motion to Amend (Doc. 270). For the reasons set forth below, and for the reasons stated at the June 30, 2005 hearing on the motions, the court grants the motions.

Further, the court orders Alabama and Florida to revise their amended complaints to clarify exactly which agency actions they are challenging under each claim, and to make other changes only as necessary to clearly articulate the basis of this court's jurisdiction.

I. Facts and Procedural History

On June 28, 1990, Alabama filed a complaint against the United States Army Corps of Engineers and several of the Corps' officers in their official capacities challenging a number of the Corps' activities, plans, and actions primarily regarding the management of three reservoirs in Georgia: Carters Lake, Lake Allatoona, and Lake Lanier. Carters Lake and Lake Allatoona are part of the Alabama-Coosa-Tallapoosa (ACT) river basin. Lake Lanier is part of the Apalachicola-Chattahoochee-Flint (ACF) river basin. Alabama and its citizens are downstream from these reservoirs and rely on water from both the ACT and ACF river basins.

Beginning soon after Alabama filed suit, a number of entities moved to intervene in the case, including Florida,¹ Georgia, and the Atlanta Regional Commission (ARC). See Doc. 21, Florida's [Original] Motion to Intervene; Doc. 31, Georgia's [Original] Motion to Intervene; Doc. 34, Water Supply Intervenors' Motion to Intervene. Florida sought to intervene as a plaintiff, and Georgia and ARC sought to intervene as defendants.

To foster settlement negotiations, on September 14, 1990 Alabama and the Federal Defendants² filed a Joint Motion to Stay Proceedings, agreeing that, "until such time as the stay is terminated [under the terms of the joint motion], Defendants agree not to execute any contracts or agreements which are the subject of the complaint in this action unless expressly agreed to, in writing, by Alabama and Florida." See Doc. 41. The court³ granted the Joint Motion to Stay, noting that "the court views the parties to this action as bound by the terms of their joint motion." Doc. 44. That stay was repeatedly extended by every judge who has presided over this case.

Following a 1992 stay Order, which preserved rather than superseded the conditions of the 1990 stay Order,⁴ the court denied several pending motions, including Florida's, Georgia's, and ARC's motions to intervene, without prejudice to refile in the event the stay was lifted. See February 5, 1992 Order, Doc. 54.

In January, 2003, without the Corps first complying with the termination provisions of the 1990 Joint Motion to Stay, the Corps and Georgia entered into a settlement agreement ("the D.C. agreement") with other parties in related litigation in the United States District Court for the District of Columbia (the "D.C. Case"). Alabama responded on January 27, 2003 by filing a motion in this case for a temporary restraining order and preliminary injunction against the Corps, arguing that the Corps had violated the terms of the 1990 stay Order. Limited litigation activity commenced, interspersed with more stay orders, as requested by the parties, to permit them opportunities to settle the dispute over the D.C. agreement among themselves.

On September 8, 2003, Florida renewed its motion to intervene, which was not accompanied by a new proposed complaint.⁵ See Doc. 158, Florida's First Amended Motion to Intervene. In an Order setting the case for a hearing on Alabama's request for a TRO and preliminary injunction, the court granted Florida's motion to intervene and permitted Florida to file its complaint in intervention by September 12, 2003. Doc. 161, September 10, 2003 Order Granting Florida's Motion to Intervene. On September 12, 2003, Florida filed its first complaint, which it styled as its "First Amended Complaint" because that complaint was different from its original 1990 proposed complaint in intervention. See Doc. 165, Florida's First Amended Complaint. No Defendants answered Florida's First Amended Complaint, presumably because, as discussed below, on November 24, 2003, the court again stayed the case.

On September 11, 2003, Georgia renewed its motion to intervene as a defendant, and the court granted the motion. See Doc. 162, Georgia's Renewed Motion to Intervene; Doc. 183, September 23, 2003 Order Granting Georgia's Motion to Intervene.

On September 23, 2003, Alabama moved to amend its complaint because, "[d]uring the thirteen years which have passed since Alabama filed its original complaint and the six years which have passed since the execution of the ACF and ACT compacts, new factual developments have taken place which warrant additional and supplemental factual allegations and legal counts against the Corps and its officials." See Doc. 184. Alabama attached to its motion a copy of its proposed "First Amended Complaint." See Doc. 184 Attachment 1.

On October 15, 2003, after a hearing on September 24, 2003, the court found that the Corps had violated the September 19, 1990 stay Order, and entered a preliminary injunction prohibiting the Corps from "filing the settlement agreement in [the D.C. Case], implementing the settlement agreement, ... or, [without this court's approval,] entering into any other new storage or withdrawal contracts affecting the [ACF] river basin." See Doc. 192, October 15, 2003 Preliminary Injunction Order. The court specified that the injunction would last only until this case is resolved on the merits, and may be lifted earlier "for just cause." Id. p. 11.

On November 6, 2003 ARC attempted to make a "special appearance" to contest this court's jurisdiction to enter the October 15, 2003 preliminary injunction. See Doc. 196. In December, Georgia, the Corps, and ARC (who was not a yet a party) each filed Notices of Appeal from the October 15, Preliminary Injunction Order. See Docs. 204-206.

Meanwhile, no party filed an opposition to Alabama's motion to amend. On November 24, 2003, "recogniz[ing] that the complexion of this litigation has changed considerably over the last thirteen years[,] ... in an effort to ensure this dispute resolves on timely matters," the court granted Alabama's first Motion to Amend. See November 24, 2003 Order, Doc. 203. In the same Order, the court stayed the case "until Judge Thomas Penfield Jackson makes an order in Southeastern Federal Power Customers, Inc., v. United States Army Corps of Engineers, C.A. No. 00-2975 (T.P.J.) (D.D.C.), deciding the validity of the proposed settlement in that case." Id. The court required Alabama to file its amended complaint within 10 days after the lifting of the stay. Id.

On February 10, 2004, Judge Jackson entered an Order declaring that the D.C. agreement was "valid and approved, and may be executed and filed and thereafter performed in accordance with its terms; provided, however, that the preliminary injunction entered by N.D. Ala. on October 15, 2003, is first vacated." Southern Federal Power Customers, Inc. v. Caldera, 301 F.Supp.2d 26, 35 (D.D.C.2004) (the "D.C. Order"). Accordingly, the due date for Alabama's amended complaint was February 25, 2004. On February 24, 2004, Alabama and Florida filed a joint, unopposed motion to extend the time to file amended complaints.⁶ See Doc. 217. The court granted the motion (Doc. 218), and extended the deadline to March 10, 2005. Both Alabama and Florida filed "Second...