Alabama v. U.S. Army Corps of Engineers, No. 03-16424.

• Decision Date: 19 September 2005
• Docket Number: No. 05-11123.,No. 03-16424.
• Parties: State of ALABAMA, Plaintiff-Appellee, State of Florida, Intervenor-Plaintiff-Appellee, v. UNITED STATES ARMY CORPS OF ENGINEERS, Robert B. Keyser, Colonel, in his capacity as District Engineer, Mobile District, United States Army Corps of Engineers, Randall R. Castro, Major General, in his capacity as Division Engineer, South Atlantic Division, United States Army Corps of Engineers, Robert B. Flowers, Lt. General, in his capacity as the Chief of Engineers, United States Army Corps of Engineers, Defendants-Appellants, State of Georgia, in its individual capacity as Trustee of its natural resources and in its representative capacity as parens patriae for the citizens of the State of Georgia, Intervenor-Defendant-Appellant, Gwinnett County, Intervenor-Appellant, Atlanta Regional Commission, Intervenor-Defendant-Intervenor. Alabama, State of, Plaintiff-Appellee, Florida, State of, Intervenor-Plaintiff-Appellee, v. United States Army Corps of Engineers, Peter F. Taylor, Colonel, in his capacity as District Engineer, Mobile District, United States Army Corps of Engineers, Michael J. Walsh, Brigadier General, in his capacity as Division Engineer, South Atlantic Division, United States Army Corps of Engineers, Carl A. Strock, Lt. General, in his capacity as the Chief of Engineers, United States Army Corps of Engineers, Defendants-Appellants, Georgia, State of, in its individual capacity as Trustee of its natural resources and in its representative capacity as parens patriae for the citizens of the State of Georgia, Atlanta Regional Commission, Water Supply Intervenor, Intervenor-Defendant-Appellant, Lake Lanier Association, Intervenor-Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1118

424 F.3d 1118

State of ALABAMA, Plaintiff-Appellee, State of Florida, Intervenor-Plaintiff-Appellee, v. UNITED STATES ARMY CORPS OF ENGINEERS, Robert B. Keyser, Colonel, in his capacity as District Engineer, Mobile District, United States Army Corps of Engineers, Randall R. Castro, Major General, in his capacity as Division Engineer, South Atlantic Division, United States Army Corps of Engineers, Robert B. Flowers, Lt. General, in his capacity as the Chief of Engineers, United States Army Corps of Engineers, Defendants-Appellants, State of Georgia, in its individual capacity as Trustee of its natural resources and in its representative capacity as parens patriae for the citizens of the State of Georgia, Intervenor-Defendant-Appellant, Gwinnett County, Intervenor-Appellant, Atlanta Regional Commission, Intervenor-Defendant-Intervenor.

Alabama, State of, Plaintiff-Appellee, Florida, State of, Intervenor-Plaintiff-Appellee, v. United States Army Corps of Engineers, Peter F. Taylor, Colonel, in his capacity as District Engineer, Mobile District, United States Army Corps of Engineers, Michael J. Walsh, Brigadier General, in his capacity as Division Engineer, South Atlantic Division, United States Army Corps of Engineers, Carl A. Strock, Lt. General, in his capacity as the Chief of Engineers, United States Army Corps of Engineers, Defendants-Appellants, Georgia, State of, in its individual capacity as Trustee of its natural resources and in its representative capacity as parens patriae for the citizens of the State of Georgia, Atlanta Regional Commission, Water Supply Intervenor, Intervenor-Defendant-Appellant, Lake Lanier Association, Intervenor-Defendant.

No. 03-16424.

No. 05-11123.

United States Court of Appeals, Eleventh Circuit.

September 19, 2005.

COPYRIGHT MATERIAL OMITTED

Michael T. Gray, Robert H. Oakley, U.S. Dept. of Justice, Environment & Nat. Res. Div., App. Sec., Washington, DC, William Middleton Droze, Troutman Sanders, LLP, R. Todd Silliman, Bruce Perrin Brown, McKenna, Long & Aldridge, LLP, Atlanta, GA, for Defendants-Appellants.

Matthew H. Lembke, Joel M. Kuehnert, Bradley, Arant, Rose & White, LLP, Wiliam S. Cox, III, W. Larkin Radney, IV, Nikaa Baugh Jordan, Lightfoot, Franklin & White, L.L.C., Birmingham, AL, James T. Banks, Hogan & Hartson, L.L.P., Washington, DC, Christopher M. Kise, FL Sol. Gen., Jonathan Alan Glogau, Tallahassee, FL, Parker D. Thomson, Hogan &amp Hartson, LLP, Miami, FL, Donald G. Blankenau, Fennemore Craig, PC, Lincoln, NE, Richard Craig Kneisel, William Duncan Little, Montgomery, AL, Lauren James Caster, Fennemore Craig, P.C., Phoenix, AZ, Stephen E. O'Day, Andrew McFee Thompson, Smith, Gambrell & Russell, Atlanta, GA, for Alabama and Florida.

David Acton Fitzgerald, Edward McGrath, Clinton A. Vince, Sullivan & Worcester, LLP, Washington, DC, James H. Curry, Autry, Horton & Cole, LLP, Tucker, GA, for Amicus Curiae.

Lewis B. Jones, Patricia T. Barmeyer, Randy J. Butterfield, King & Spalding, Atlanta, GA, for Intervenor.

Appeals from the United States District Court for the Northern District of Alabama.

Before BARKETT and MARCUS, Circuit Judges, and GEORGE^*, District Judge.

BARKETT, Circuit Judge:

These two interlocutory appeals arise out of one lawsuit pertaining to the allocation of water stored in Georgia's Lake Lanier, which is controlled by the Army Corps of Engineers ("Corps"). The dispute involves the Corps, the States of Georgia, Florida, and Alabama, which are all affected by the amount of water flowing out of Lake Lanier through the Apalachicola-Chattahoochee-Flint river basin ("ACF Basin"), and several local governmental bodies in Georgia seeking a greater allocation of water from Lake Lanier for municipal and industrial water supply use. These bodies include the Atlanta Regional Commission ("ARC") and Gwinnett County.

There are two ancillary proceedings which are relevant to these appeals. The first is a lawsuit which involves similar water allocation issues filed in the U.S. District Court for the District of Columbia ("D.C. court") by the Southeastern Federal Power Customers ("SeFPC"), who are purchasers of hydropower generated at the dam which formed Lake Lanier. Southeastern Federal Power Customers, Inc. v. United States Army Corps of Engineers, 00-CV-2975 (D.D.C.) (the "D.C. case"). The second is a lawsuit filed by Georgia against the Corps in the Northern District of Georgia, seeking to compel the Corps to increase the amount of water Georgia can withdraw from Lake Lanier for water supply. Georgia v. U.S. Army Corps of Engineers, 2:01-CV-00026-RWS (the "Georgia case"). The Georgia district court abated those proceedings pending resolution of the Alabama case appealed here. We affirm that decision in a separate opinion.

In appeal No. 03-16424 ("Alabama I"), the Corps,¹ Georgia, Gwinnett County, and the ARC,² pursuant to 28 U.S.C. § 1292(a)(1), appeal an interlocutory order (which the district court has termed a "preliminary injunction") granting the motion of Alabama and Florida to bar the Corps and Georgia from implementing a settlement agreement reached in the D.C. case. In interlocutory appeal No. 05-11123 ("Alabama II"), the Corps, Georgia, and the ARC appeal the district court's denial of their motion to vacate or dissolve that order, likewise pursuant to 28 U.S.C. § 1292(a)(1).

I. BACKGROUND

In order to resolve the issues in this case it is necessary to review the history of Lake Lanier and the ACF Basin, the procedural histories of the Alabama and D.C. lawsuits, and the nature of the orders appealed here to determine if they meet the requirements of 28 U.S.C. § 1292(a)(1) for an interlocutory appeal.

A. Lake Lanier and the ACF Basin

Pursuant to congressional authority in the River and Harbors Act of 1945, Pub.L. No. 79-14, 59 Stat. 10, 10-11, the Corps built Buford Dam across the Chattahoochee River approximately fifty miles northeast of Atlanta. The Dam forms the reservoir known as Lake Sidney Lanier. The Chattahoochee River flows from North Georgia into and out of Lake Lanier, then across the state and along the border between Alabama and Georgia. At the Florida-Georgia border the Chattahoochee joins the Flint River and they become the Apalachicola River, which eventually flows into the Apalachicola Bay and the Gulf of Mexico. The three rivers, their tributaries, and the associated drainage area form the ACF Basin.

Lake Lanier was created for the explicitly authorized purposes of flood control, navigation, and electric power generation. To fulfill the latter purpose, hydropower generated at Buford Dam is sold to suppliers, which re-sell the electricity to their customers. Flood control, navigation, and electric power generation are "flow-through" uses that do not reduce the amount of water available downstream from Lake Lanier.

In addition to these uses, and although not explicitly authorized by Congress, the Corps has historically maintained that water supply use is an "incidental benefit" flowing from the creation of the reservoir. Thus, the Corps has allowed some of the Lake capacity to be used for municipal and industrial water supply use. Unlike flood control, navigation and power generation, allocating water stored in the Lake for water supply may diminish the quantity of water flowing downstream.

Beginning in the 1970s, in accordance with the Corps' view that water supply was an appropriate "incidental benefit" of the creation of the Lake, the Corps entered into interim contracts with local government entities in Georgia to allocate storage capacity in the Lake for local water supply for a specified period of time.³ As demand for water increased and the local governmental entities desired an assured permanent supply, the Corps in 1989 announced plans to seek congressional approval in accordance with the Water Supply Act of 1958 ("WSA"), 43 U.S.C. § 390b (2003), to enter into permanent water storage contracts with the local governmental bodies, proposing a draft allocation plan (the "Post Authorization Change (`PAC') Notification Report") for congressional approval.⁴

B. Alabama Suit

In June of 1990, Alabama sued the Corps in the Northern District of Alabama for declaratory and injunctive relief. The specific relief sought was, first, a declaration that the Corps had failed to comply in several respects with the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq. (2003), before entering into existing contracts for water withdrawal from Lake Lanier.⁵ Second, Alabama asked for a preliminary and permanent injunction requiring the Corps "to comply with the provisions and regulations of NEPA" and "to recall and to refrain" from executing proposed contracts for withdrawals of water from Lake Lanier and prohibiting any increase in withdrawals of water until a requested Comprehensive Studies Plan⁶ was completed.

In September 1990, Alabama and the Corps jointly moved for a stay of the proceedings ("1990 Joint Stay"), to attempt to negotiate an agreement, with proposed intervenors⁷ Florida (plaintiff) and Georgia (defendant) participating in those negotiations. In the Joint Stay, the Corps agreed "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." However, either party could unilaterally terminate the 1990 Joint Stay upon written notice,⁸ but had to abide by the terms of the stay for an eighty-day period after notice of termination. The Court entered an order granting the motion for a stay.

However, in 1992, the same parties entered into another agreement — the "Memorandum of Agreement" ("1992 MOA") — that allowed existing withdrawals of water from Lake Lanier to continue or to increase in response to reasonable demand. In accordance with the 1992 MOA, the Corps abandoned the PAC Notification Report.

In 1997, Congress and each of the three states passed the Apalachicola-Chattahoochee-Flint...