Hood ex rel. Mississippi v. City of Memphis, Tenn.

• Decision Date: 06 February 2008
• Docket Number: No. 2:05CV32-D-B.,2:05CV32-D-B.
• Citation: 533 F.Supp.2d 646
• Court: U.S. District Court — Northern District of Mississippi
• Parties: Jim HOOD, Attorney General, ex rel., The State of MISSISSIPPI, acting for itself and Parens Patriae for and on behalf of the People of the State of Mississippi, Plaintiff v. The CITY OF MEMPHIS, TENNESSEE; and Memphis Light, Gas & Water Division, Defendants.

Page 646

533 F.Supp.2d 646

Jim HOOD, Attorney General, ex rel., The State of MISSISSIPPI, acting for itself and Parens Patriae for and on behalf of the People of the State of Mississippi, Plaintiff v. The CITY OF MEMPHIS, TENNESSEE; and Memphis Light, Gas & Water Division, Defendants.

No. 2:05CV32-D-B.

United States District Court, N.D. Mississippi, Delta Division.

February 6, 2008.

Alan B. Cameron, Daniel, Coker, Horton & Bell, Oxford, MS, David Malcolm McMullan, Jr., John W. (Don), Barrett, Barrett Law Offices, Lexington, MS, George B. Ready, George B. Ready, Attorney, Hernando, MS, for Plaintiff.

David L. Bearman, Kristine L. Roberts, Chad D. Graddy, Leo Bearman, Jr., Baker, Donelson, Bearman & Caldwell, Sara Hall, Office of the City Attorney, Christopher S. Campbell, Harris, Shelton, Hanover Walsh, PLLC, Memphis, TN, Walker W. Jones, III, Baker, Donelson, Bearman & Caldwell, Jackson, MS, for Defendants.

BENCH OPINION DISMISSING ACTION WITHOUT PREJUDICE

GLEN H. DAVIDSON, Senior District Judge.

The United States Supreme Court held, in Steel Company v. Citizens for a Better Environment, 523 U.S. 83, 101-102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), that Article III generally requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case and that "for a court to pronounce upon [the merits] when it has no jurisdiction to do so is for a court to act ultra vires." See also Villarreal v. Smith, 201 Fed.Appx. 192, 194 (5th Cir.2006) ("A federal court has the affirmative duty to inquire into jurisdiction whenever the possibility of a lack of jurisdiction aims."); Warren v. United States, 874 F.2d 280, 281-82 (5th Cir.1989) (holding that "federal courts are under a continuing duty to inquire into the basis of jurisdiction ..."); Giannakos v. M/V Bravo Trader, 762 F.2d 1295, 1297 (5th Cir.1985) ("United States District Courts ... have the responsibility to consider the question of subject matter jurisdiction sua sponte ... and to dismiss any action if such jurisdiction is lacking."); Fed.R.Civ.P. 12(h)(3) ("Whenever it, appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.").

Discussion

The Plaintiff initiated this action seeking past and future damages as well as equitable relief related to the Defendants' alleged wrongful appropriation of groundwater from the Memphis Sands Aquifer.

Although it is the Defendants that seek a ruling that the State of Tennessee is an indispensable party to this action, "when an initial appraisal of the facts indicates that a possibly necessary party is absent, the burden of disputing this initial appraisal falls on the party who opposes joinder." Pulitzer-Polster v. Pulitzer, 784 F.2d 1305, 1309 (5th Cir.1986). Because the court has indicated that a possibly necessary party is absent from this action, the burden of disputing joinder falls on the Plaintiff

Rule 19(a) of the Federal Rules of Civil Procedure provides in part that:

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (I) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.

Fed. R. Civ. P. 19(a).

Rule 19(b) states that:

If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors a court should consider in determining whether a party is indispensable include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

Fed.R.Civ.P. 19(b).

Under Rule 19, the court's analysis is conducted as follows:

The court initially must determine whether the absent person's interest in the litigation is sufficient to satisfy one or more of the tests set out in the first sentence of Rule 19(a). There is no precise formula for determining whether a particular nonparty must be joined under Rule 19(a). Rather, the decision has to be made in terms of the general policies of avoiding multiple litigation, providing the parties with complete and effective relief in a single action, and protecting the absent persons from the possible prejudicial effect of deciding the case without them. If joinder under Rule 19(a) is not feasible because, e.g., it will deprive the court of subject matter jurisdiction, the court must examine the four considerations described in Rule 19(b) to determine whether the action may go forward (without the absentee) or must be dismissed, the absent person being thus regarded as indispensable.

Faloon v. Sunburst Bank, 158 F.R.D. 378, 380 (N.D.Miss.1994).

While there are apparently no reported cases dealing with interstate subsurface water or aquifers, it is admitted by all parties and revealed in exhibits that the Memphis Sands or Sparta aquifer lies under several States including the States of Tennessee arid Mississippi.

In applying the dictates of Rule 19 to the facts of this case, the court holds that the State of Tennessee is a necessary and indispensable party. First, the doctrine of equitable apportionment has historically been the means by which disputes over interstate waters are resolved. The United States Supreme. Court has held that it possesses a "serious responsibility to adjudicate cases where there are actual existing controversies over how interstate streams should be apportioned among States." Arizona v. California, 373 U.S. 546, 564, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963); see Texas v. New Mexico, 462 U.S. 554, 567, 103 S.Ct. 2558, 77 L.Ed.2d 1 (1983) (The Supreme Court held that "[t]here is no doubt that this court's jurisdiction to resolve controversies between two states ... extends to a properly framed suit to apportion the waters of an interstate stream between States through which it flows ...").

The subject aquifer in the case sub judice has not been apportioned, neither by agreement of the involved States nor by the U.S. Supreme Court. However, absent apportionment, this court cannot afford relief to the Plaintiff and hold that the Defendants are pumping water that belongs to the State of Mississippi, because it has not yet been determined which portion of the aquifer's water is the property of which State. It is simply not possible for this court to grant the relief the Plaintiff seeks without engaging in a de facto apportionment of the, subject aquifer; such relief, however, is in the original and exclusive jurisdiction of the United States Supreme Court because such a dispute is necessarily between the State of Mississippi and the State of. Tennessee. Throughout the years, the Supreme Court has adjudicated many such disputes pursuant to its original and exclusive jurisdiction, including one between the States of Mississippi and Louisiana involving the Mississippi. River. See, e.g., Louisiana v. Mississippi, 516 U.S. 22, 116 S.Ct. 290, 133 L.Ed.2d 265 (1995); Mississippi v. Louisiana, 506 U.S. 73, 113 S.Ct. 549, 121 L.Ed.2d 466 (1992); Virginia v. Maryland, 540 U.S. 56, 124 S.Ct. 598, 157 L.Ed.2d 461 (2003); Kansas v. Colorado, 514 U.S. 673, 115 S.Ct. 1733, 131 L.Ed.2d 759 (1995); Nebraska v. Wyoming, 515 U.S. 1, 115 S.Ct. 1933, 132 L.Ed.2d 1 (1995); Colorado v. New Mexico, 467 U.S. 310, 104 S.Ct. 2433, 81 L.Ed.2d 247 (1984); Arizona v. California, 373 U.S. 546, 83 S.Ct. 1468, 10 L.Ed.2d 542 (1963); New Jersey v. New York, 345 U.S. 369, 73 S.Ct. 689, 97 L.Ed. 1081 (1953); Nebraska v. Wyoming, 325 U.S. 665, 66 S.Ct. 1, 89 L.Ed. 1857 (1945); Connecticut v. Massachusetts, 282 U.S. 660, 51 S.Ct. 286, 75 L.Ed. 602 (1931); Kansas v. Colorado, 206 U.S. 46, 27 S.Ct. 655, 51 L.Ed. 956 (1907). In another analogous case, the Fifth Circuit held that the United States was an indispensable party in a suit filed by a Texas municipality and other individual landowners against several defendants who claimed irrigation rights to the Rio Grande River; while the Plaintiffs in that case did join the United States as a defendant, the Fifth Circuit held that sovereign immunity prevented joinder of the United States, but because it was a necessary and indispensable party and the suit could therefore not go forward without it as a party, the suit was dismissed. Miller v. Jennings, 243 F.2d 157 (5th Cir. 1957).

While this court, in initially denying the Defendants' motion seeking relief under Rule 19, relied upon another Supreme Court case, Illinois v. City of Milwaukee, Wisconsin, 406 U.S. 91, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972), for the proposition that a State need not be joined in a nuisance action brought by a neighboring State against cities and local commissions in that State and involving an interstate waterway, the court finds that cases such as Louisiana v. Mississippi are more closely analogous to the case sub judice because the partition of an interstate body of water is a necessary condition of affording the Plaintiff...