Mississippi v. Tennessee

• Decision Date: 22 November 2021
• Docket Number: 143, Orig.
• Citation: 142 S.Ct. 31,211 L.Ed.2d 230
• Parties: STATE OF MISSISSIPPI, Plaintiff v. TENNESSEE, City of Memphis, Tennessee, and Memphis Light, Gas & Water Division
• Court: U.S. Supreme Court

142 S.Ct. 31

211 L.Ed.2d 230

STATE OF MISSISSIPPI, Plaintiff

v.TENNESSEE, City of Memphis, Tennessee, and Memphis Light, Gas & Water Division

No. 143, Orig.

Supreme Court of the United States.

Argued October 4, 2021

Decided November 22, 2021

John V. Coghlan, Deputy Solicitor General, for Plaintiff.

Frederick Liu for the United States as amicus curiae, by special leave of the Court, in support of overruling plaintiff's exceptions

Jim Hood, Attorney General, State of Mississippi, Geoffrey C. Morgan, Assistant Attorney General, George W. Neville, Harold E. Pizzetta, III, Alison E. O'Neal, Mississippi Attorney General's Office, Jackson, MS, C. Michael Ellingburg, Counsel of Record, Larry D. Moffett, Daniel Coker Horton & Bell, P.A., Jackson, MS, John W. (Don) Barrett, David M. McMullan, Jr., Barrett Law Group, P.A., Lexington, MS, George B. Ready, George B. Ready Attorneys, Hernando, MS, Charles Barrett, Charles Barrett, P.C., Nashville, TN, for Plaintiff.

Lynn Fitch, Attorney General, State of Mississippi, Tricia Beale, Ta'shia S. Gordon, Mississippi Attorney, General's Office, Jackson, MS, C. Michael Ellingburg, Counsel of Record, Ellingburg Law Firm, Pllc, Flowood, MS, Larry D. Moffett, Law Office of Larry D., Moffett, Pllc, Oxford, MS, Charles Barrett, William J. Harbison, II, Neal & Harwell, Plc, Nashville, TN, Edward C. Taylor, Daniel Coker Horton & Bell, P.A., Gulfport, MS, for Plaintiff.

David C. Frederick, Joshua D. Branson, Grace W. Knofczynski, Alejandra Avila, Derek T. Ho, Kellogg, Hansen, Todd Figel & Frederick P.L.L.C., Washington, D.C., Herbert H. Slatery III, Attorney General, Andrée Sophia Blumstein, Solicitor General, Sohnia W. Hong, Senior Counsel, Counsel of Record, Nashville, TN, David L. Bearman, Counsel of Record, Kristine L. Roberts, Baker, Donelson, Bearman, Caldwell & Berkowitz, Pc, Memphis, TN, Cheryl W. Patterson, Charlotte Knight Griffin, Memphis Light, Gas & Water Division, Memphis, TN, Jennifer Sink, City of Memphis, TN, for Defendants.

Herman Morris, Jr., Regina Morrison Newman, Philip Oliphant, Memphis, TN, Leo M. Bearman, Baker, Donelson, Bearman, Memphis, TN, for Defendants.

Robert E. Cooper, Jr., Attorney General, Joseph F. Whalen, Acting Solicitor General, Barry Turner, Deputy Attorney General, for Defendants.

Chief Justice ROBERTS delivered the opinion of the Court.

The City of Memphis sits on the banks of the Mississippi River in the southwest corner of Tennessee. Arkansas marks the City's western border, and Mississippi its southern. Hundreds of feet beneath Memphis lies one of the City's most valuable resources: the Middle Claiborne Aquifer. Workers discovered the aquifer in 1886 while drilling a well for the Bohlen-Huse Ice Company. Ever since, water pumped from the aquifer has provided Memphis with an abundant supply of clean, affordable drinking water.

The Middle Claiborne Aquifer underlies other States too, including Mississippi. This case began in 2014 when Mississippi invoked our original jurisdiction and sought leave to file a bill of complaint against Tennessee. Mississippi alleges that Tennessee's pumping has taken hundreds of billions of gallons of water that were once located beneath Mississippi. It seeks at least $615 million in damages, as well as declaratory and injunctive relief. We granted Mississippi leave to file its complaint and appointed a Special Master to oversee proceedings. The Special Master has now issued his report, which recommends that this Court dismiss Mississippi's complaint with leave to amend. Both Mississippi and Tennessee have filed exceptions.

I

A

Layers of rock, clay, silt, sand, and gravel exist below the Earth's surface. Groundwater percolates through the spaces in and around these materials, sometimes forming underground reservoirs of water known as aquifers. Some aquifers are small, while others span tens of thousands of square miles. The Middle Claiborne Aquifer is one of the latter. It underlies portions of eight States in the Mississippi River Basin: Alabama, Arkansas, Illinois, Kentucky, Louisiana, Mississippi, Missouri, and Tennessee. See Report of Special Master 16; Hearing Tr. 278–279. Many of these States, including Mississippi and Tennessee, draw significant amounts of groundwater from the aquifer. Id., at 660–662, 1038–1040; Joint Exh. J–71.

To extract water from an aquifer, people drill wells. Pumps then draw water to the surface, where it is processed and piped to customers. Pumping does not just bring water to the surface; it also lowers water pressure at the site of the well. Water is naturally drawn to this area of lower pressure. This, in turn, "causes a pattern of lower or depressed water levels around the wells." Report of Special Master 13. Hydrogeologists call such areas "cones of depression." These cones of depression can be local—say, the size of a backyard. Or they can be regional, stretching out for many miles from a pumping site. See id., at 21–23; Hearing Tr. 176, 188, 435.

The City of Memphis, through its public utility, the Memphis Light, Gas and Water Division (MLGW), pumps approximately 120 million gallons of groundwater from the Middle Claiborne Aquifer each day. Id., at 186, 200; Pl. Exh. P–157. It does so using more than 160 wells located in and around Memphis. Joint Statement of Stipulated and Contested Facts 101. Some of these wells are located just a few miles from the Mississippi-Tennessee border, though all are drilled straight down such that none crosses the physical border between the States. Id., at 101–102, 106. MLGW's pumping contributes to a cone of depression that underlies both the City of Memphis and DeSoto County, Mississippi. Report of Special Master 21–23; Hearing Tr. 206, 435–436, 525.

Mississippi argues that MLGW's pumping has altered the historic flow of groundwater within the Middle Claiborne Aquifer. Mississippi concedes that some water naturally flows from the part of the aquifer beneath Mississippi to the part beneath Tennessee. But only to the extent of some 30 to 60 feet per year. See Exceptions Brief for Mississippi 8; see also Report of Special Master 24 ("Mississippi does not dispute the expert consensus that at least some quantity of groundwater ... crossed the border under natural conditions."). Mississippi contends that MLGW's pumping has substantially hastened this existing flow, allowing Memphis to take billions of gallons of groundwater that otherwise would have remained under Mississippi for thousands of years.

B

In 2005, prior to the present litigation, the Attorney General of Mississippi sued the City of Memphis and MLGW in Federal District Court. The suit alleged that Memphis had wrongfully appropriated groundwater belonging to Mississippi through its pumping activities. Mississippi sought hundreds of millions of dollars in damages.

The District Court dismissed the suit for failure to join Tennessee, which it determined was an indispensable party. Hood ex rel. Miss. v. Memphis , 533 F.Supp.2d 646, 651 (N.D. Miss. 2008). The Fifth Circuit then affirmed. Hood ex rel. Miss. v. Memphis , 570 F.3d 625 (2009).

Both decisions turned in large part on what is known as "equitable apportionment." Under that doctrine, this Court allocates rights to a disputed interstate water resource after one State sues another under our original jurisdiction. See Kansas v. Colorado , 206 U.S. 46, 97–98, 27 S.Ct. 655, 51 L.Ed. 956 (1907). Traditionally, equitable apportionment has been the exclusive judicial remedy for interstate water disputes, unless a statute, compact, or prior apportionment controls. This Court has never before held that an interstate aquifer is subject to equitable apportionment, so Mississippi's suit implicated a question of first impression.

The Court of Appeals, affirming the District Court, held that interstate aquifers are comparable to interstate rivers and are thus subject to equitable apportionment. It reasoned that an aquifer "flows, if slowly." Hood ex rel. Miss. , 570 F.3d at 630. And it said the fact that an aquifer is "located underground, as opposed to resting above ground," was of "no analytical significance." Ibid. Because determining "Mississippi and Tennessee's relative rights to the Aquifer" brought the case within the equitable apportionment doctrine, the Court of Appeals affirmed the District Court's holding that Tennessee was an indispensable party. Id., at 630–631 ; see also Fed. Rule Civ. Proc. 19(a). Joinder of Tennessee in the lower federal courts was not possible, however, because this Court has exclusive jurisdiction over suits between States. See U.S. Const., Art. III, § 2; 28 U.S. C. § 1251(a). So the Fifth Circuit held that the District Court had properly dismissed the suit. Hood ex rel. Miss. , 570 F.3d at 632–633 ; Fed. Rule Civ. Proc. 19(b).

Mississippi then petitioned for a writ of certiorari. It also sought leave to file a bill of complaint against Tennessee, Memphis, and MLGW under our original jurisdiction. The proposed complaint requested over $1 billion in damages for the alleged taking of Mississippi's water. In the alternative, it sought equitable apportionment of the aquifer, with a damages award for past diversions of groundwater. We declined to grant certiorari, 559 U.S. 904, 130 S.Ct. 1319, 175 L.Ed.2d 1074 (2010), and denied without prejudice Mississippi's request for leave to file a bill of complaint, 559 U.S. 901, 130 S.Ct. 1317, 175 L.Ed.2d 1071 (2010).

C

In 2014, Mississippi again sought leave from this Court to file a bill of complaint against Tennessee, Memphis, and MLGW. That is the basis of this suit. Mississippi's complaint alleges that MLGW "has forcibly siphoned into Tennessee hundreds of billions of gallons of high quality groundwater owned by Mississippi." Complaint ¶23. It says that MLGW's "mechanical pumping" is to blame and that the "groundwater taken by Defendants from within Mississippi's borders would have never under normal, natural circumstances been drawn into Tennessee." Id., ¶24. This "wrongful taking," the State ...