Upper Oconee Basin Water Auth. v. Jackson County, A10A0455.
| Decision Date | 14 July 2010 |
| Docket Number | No. A10A0455.,A10A0455. |
| Citation | 305 Ga.App. 409,699 S.E.2d 605 |
| Parties | UPPER OCONEE BASIN WATER AUTHORITYv.JACKSON COUNTY. |
| Court | Georgia Court of Appeals |
Ekonomou, Atkinson & Lambros, Paul E. Nystrom III, Atlanta, for appellant.
Balch & Bingham, Michael J. Bowers, Marlie A. McDonnell, Atlanta, for appellee.
Appellee Jackson County filed a petition for declaratory judgment against appellant Upper Oconee Basin Water Authority (the “ Authority”). The Authority filed a motion to dismiss, arguing that the County's action was barred by sovereign immunity and, alternatively, that the petition failed to state a claim under OCGA § 9-11-12(b)(6). The County then amended its petition to include counts for breach of contract/specific performance and injunctive relief. The trial court denied the motion to dismiss, and the Authority appeals.
Ga. L. 1994, pp. 5123, 5125, § 4. Athens-Clarke, Barrow, Jackson and Oconee Counties comprise the “Member Counties” under the Act. Ga. L. 1994, p. 5126, § 5(a)(6).
In 1996, the Authority and the Member Counties entered into a 50-year Intergovernmental Reservoir and Raw Water Supply Agreement (“Agreement”) to further the purposes of the Act to construct reservoirs and treat and transmit that water to the Member Counties. Pursuant to the Agreement, the Authority was to plan, build and manage the Bear Creek Reservoir, which would serve as a source of water to the Member Counties.
As is pertinent here, Article II of the Agreement states:
The Authority shall provide or cause to be provided and each Member County may take from the Authority its Entitlement Share of the Water Supply pursuant to Section 306. The Authority will be responsible for planning, negotiating, designing financing, acquiring or constructing, contracting for, administering, operating, and maintaining the Project as necessary to effect the delivery and sale of such Water Supply to each Member County.
Section 102(k) of the Agreement expressly assigns “Entitlement Shares” to each Member County,1 and Section 302 of the Agreement obligates the Authority to “cause to be delivered or make available for delivery to the Member Counties during each month of each Water Supply Year its Entitlement Share....” Section 306 further specifies how much water each Member County is allowed to withdraw. Pursuant to that section, “the maximum quantity that may be withdrawn by any Member County ... shall be limited to a quantity equal to the EPD approved Established Yield of the Project multiplied by the Member County's Entitlement Share of the Project.” “EPD approved Established Yield” is not defined in the Agreement, but subsection (a)(1) of Section 306 defines “Established Yield” to mean “the maximum rate of withdrawal which can be sustained during critical dry periods as established by a mathematical simulation of the reservoir operation as it would have occurred during the worst historic drought for which applicable streamflow records are available.”
In 2008, the County requested that the Authority hire an independent third party to recalculate the Established Yield. The County made this request based on assertions that the Established Yield was originally miscalculated by the Authority because the initial mathematical simulation to determine that Yield wrongly assumed the use of variable instead of single speed pumps, which had the effect of falsely increasing the Established Yield and which allegedly allows the Member Counties to consume more of the Reservoir's output than the members are entitled to use. Further, the County contended that the Authority should recalculate the Established Yield to incorporate the streamflow records for the year 2007 because those records reflect the “worst historic drought for which applicable stream flow records are available.” The County contended that recalculations based on those records would also result in a reduction of the Established Yield.2
The Authority denied the County's request to recalculate the Established Yield, and the County filed its petition, as amended, seeking: (1) A judgment that the Authority has breached Section 306 of the Agreement and an order requiring the Authority to comply with the terms of the Agreement; (2) An injunction prohibiting the Authority from operating the Reservoir with the current Established Yield; and (3) A declaration that the current Established Yield does not conform to the definition set forth in the Agreement and a determination requiring the Authority to recalculate the Established Yield.
1. Under the Georgia Constitution, sovereign immunity extends to the state, political subdivisions of the state, and all of its departments and agencies. Ga. Const. of 1983 Art. I, Sec. II, Par. IX (e); Hennessy v. Webb, 245 Ga. 329, 264 S.E.2d 878 (1980). The General Assembly has the power in creating an Authority to deem it a political subdivision of the State Henderman v. Walton County Water, etc., Auth., 271 Ga. 192, 193, 515 S.E.2d 617 (1999), and the legislation creating the Authority in this case specifically provides that it “shall be deemed to be a political subdivision of the State of Georgia....” Ga. L. 1994, p. 5125, § 3. Thus, the Authority is immune from suit unless immunity has been “waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). The threshold issue in this case is thus whether there has been an applicable exception or waiver to the claims asserted here.
A motion to dismiss asserting sovereign immunity ... is based upon the trial court's lack of subject matter jurisdiction rather than the merits of the plaintiff's claim. The party seeking to benefit from the waiver of sovereign immunity has the burden of proof to establish waiver, and the trial court's pretrial ruling on factual issues necessary to decide the OCGA § 9-11-12(b)(1) motion is reviewed on appeal under the any evidence rule.
Bonner v. Peterson, 301 Ga.App. 443, 687 S.E.2d 676 (2009). We are also mindful that the courts may not abrogate or modify the State's immunity, and any consent to be sued must be strictly construed. E.g. Sawnee Elec. Membership Corp. v. Ga. Dept. of Revenue, 279 Ga. 22, 23(2), 608 S.E.2d 611 (2005); Bonner, 301 Ga.App. at 450-451, 687 S.E.2d 676.
The County argues that the claim asserted in its amended petition “derives from terms and obligations set forth in the [Agreement]” and thus the waiver of immunity to actions based on written contracts applies here. See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (c) (“The state's defense of sovereign immunity is hereby waived as to any action ex contractu for the breach of any written contract now existing or hereafter entered into by the state or its departments and agencies”); OCGA § 50-21-1 (). Specifically, the County argues that its amended petition sets forth a breach of contract action alleging the Authority breached the Agreement by failing to recalculate the Established Yield and seeking specific performance to remedy that alleged breach. It points to the fact that it is also seeking injunctive relief to enjoin the Authority from operating the Reservoir in such a way that will allow a Member County to use another Member County's Entitlement Share. And it argues it seeks a declaratory judgment that the Authority has failed to comply with the Agreement because the Established Yield was calculated improperly with...
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