Legal Docket – Thirsty states beg for high court relief


MARY REICHARD, HOST: It’s Monday morning and time to get to work for another week of The World and Everything in It. Today is March 1st, 2021. Thanks for joining us! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

The U.S. Supreme Court ruled last week against a college student severely beaten by undercover FBI agents who’d mistaken him for someone else. Instead of charging the officers, authorities charged King and tried him for assault because he’d fought the agents—in his mind, fighting back against what he says he believed was a mugging. 

The jury believed it, too, and acquitted him.

In turn, James King sued the officers for violating his 4th Amendment right, which protects against unreasonable search and seizure. In the same lawsuit, he also sued under a federal law called the Federal Tort Claims Act.

Part of that statute says once a court rules on the merits of a case involving that law, then that’s it: the law prohibits any further litigation against government agents on the same facts. Because the agents claimed qualified immunity from suit, a lower court dismissed King’s case.

The high court agreed with that interpretation of the Federal Tort Claims Act, that it bars further litigation against these officers. But the case isn’t over, and some legal issues remain muddled. 

King may still pursue other legal arguments in lower court.

REICHARD: The Supreme Court also last week struck down two lawsuits that concerned voting irregularities in Pennsylvania during the November general election. 

Six justices decided the challenges are now moot because Donald Trump conceded the election to Joe Biden. 

In a sharp dissent, Justice Clarence Thomas wrote that these cases were “an ideal opportunity to address just what authority non-legislative officials have to set election rules, and to do so well before the next election cycle.” 

He found the court’s refusal to do so “inexplicable.”

Justices Samuel Alito and Neil Gorsuch also dissented—and would also have taken the cases for review—in order to head off problems in the future.

EICHER: Now on to our oral argument for today.

ROBERTS: We will hear argument this morning in Original Case 142, Florida against Georgia. Mr. Garre.

That was a little different. Did you notice Chief Justice John Roberts saying “original case”? Hearing argument in Original Case 142. Original case. That means this dispute originated at the high court instead of making its way slowly through the trial courts and the appeals courts.

Article III, Section 2 of the US Constitution says that a lawsuit between two or more states lands directly at the high court, as does this dispute between Florida and Georgia.  

That’s the meaning of “original jurisdiction.” 

And because of that, this is a rare case in which the justices get to act as fact finders.

REICHARD: Right, Florida and Georgia are in an epic three-decade battle over water. 

If that sounds familiar to you, it’s with good reason. It’s not the first time. This is round two before the Supreme Court. 

Florida says Georgia is taking too much water from the river system both states depend upon. 

It’s  the Apalachicola-Chattahoochee-Flint river system. 

Florida once had a flourishing oyster industry in the Apalachicola Bay. But it’s collapsed. And Florida says the reason is because Georgia farmers are using up more and more water and Atlanta’s human population keeps growing. 

So Florida wants a cap on how much water Georgia can use.

Here’s how its lawyer Gregory Garre put it. Note that I’ve edited for flow.

GARRE: Denying relief in these circumstances not only would be a death sentence for Apalachicola but would extinguish Florida’s equal right to the reasonable use of the waters at issue.Those findings alone compel the conclusion that Georgia’s unrestrained consumption is unreasonable.

But Georgia says, hold on. Whatever part Georgia plays in the water woes of Florida, it’s a small one. Most of the problem is with Florida itself. It’s wrong to expect another state to pay for that. Listen to Georgia’s lawyer, Craig Primis:

PRIMIS: The record shows that Florida allowed oyster fishing at unprecedented levels in the years preceding the collapse. As one Florida official said at the time, they bent their oyster fishery until it broke. To remedy this self-inflicted wound, Florida asks the Court to impose draconian caps on Georgia. But a 50 percent cut in irrigation would cost hundreds of millions of dollars to Georgia and all for an increase in oysters of about 1 percent.

You may be wondering, why wasn’t this all hashed out last time this case was before the Supreme Court? 

Well, the ruling in the case from 2018 didn’t solve it. The majority justices asked for better information from the person appointed to find facts and assess fault. That person is known as the Special River Master.

In 2018, the high court held that the first Special River Master had used the wrong standard of review. So the court sent the case back for more analysis.

In the meantime, a second Special River Master took the job. This one said Florida failed to prove by a preponderance of the evidence that the benefit to the sunshine state outweighed the harm to Georgia.

Given that, Chief Justice Roberts started his questions with reference to a novel by Agathie Christie:

ROBERTS: How should we analyze the case if we think based on the record that Georgia contributed to the collapse of the oyster harvest but not enough to cause that on its own? That the situation is like that on “Murder on the Orient Express.” A lot of things took a stab at the fishery: drought, overharvesting, Florida regulatory policies. But also lower salinity that was caused by Georgia’s use of the water. But you can’t say that any one of those things is responsible for — for killing the – the fishery. How should we analyze the case from that perspective?

GARRE: Sure. Under basic causation principles.

Garre essentially argued that if Georgia’s use of too much water is a substantial cause of Florida’s problems, that’s all he has to prove. 

But Georgia rejected that, saying something more is required, like a “but-for” causation analysis. Meaning, Georgia would only have responsibility if Florida proves that “but for” Georgia’s actions, its oyster farms would thrive.

Justice Samuel Alito expressed frustration with the nature of this case:

ALITO: This is about the most fact-bound case that we have heard in recent memory. And we have two comprehensive reports by two outstanding masters and they are not — to put the point perhaps mildly, not entirely consistent on a number of key points. What do we do with that?

GARRE: So, Your Honor, ultimately, this Court has responsibility as fact-finder and would take de novo review of all the evidence.

Garre—for Florida—pointed out that the first Special River Master sat through the trial and heard the cross-examinations. Ergo, that report is likely more reliable.

Garre argued that even the second Special River Master said the true test of unreasonable water consumption was harm. And Georgia’s huge spike in water use is the cause. 

But Justice Stephen Breyer wasn’t convinced.

BREYER: Well, what is the evidence? Give me your best evidence. I mean, you have — you — you — you have some oyster fishermen who went out and said, hey, there are a lot of dead oysters around here. And if we over harvested them, why are there all these dead oysters? And — but the other side says there are not that many and the water wasn’t that saline and there are a few more conches but not too many, and you did overharvest the oysters after the oil spill, particularly because you thought, get them now or never. So we have conflicting evidence.

GARRE: But you don’t have conflicting evidence about this.

Florida’s lawyer pointed to evidence aplenty: Not just dead oysters. Invasive predators and failed efforts to re-stock the area, as well.

Georgia, he said, could at least do a few things that wouldn’t cost it much at all, like don’t over-water, and enforce its permit laws.

Attorney Garre came in for the emotional close:

GARRE: It’s hard to imagine New England without lobsters or, say, the Chesapeake without crabs, but, in effect, that’s a future that Apalachicola now faces when it comes to its oysters and other species. And yet, just to be clear, no one is asking or saying to Georgia farmers, sorry, you can’t grow your crops anymore because there’s no water left for you. Under the decree Florida is requesting, all farmers could continue to grow their crops. A decree would simply require them to prevent outright waste and adopt more efficient measures to save water while still irrigating. That’s hardly asking too much.

Perhaps Justice Amy Coney Barrett posed the ultimate question to Georgia’s lawyer Primis:

BARRETT: Let’s just imagine that Georgia could take measures that cost less and help Florida preserve the Apalachicola oysters. How do we put a price on an environmental benefit like that?

PRIMIS: Right. Well, that is a difficult question, and the experts at trial debated whether one could put a monetary or economic value on that.

Based on the tenor of the questions—always a risky proposition—I’m going out on a limb to predict that Florida’s going to be disappointed in the outcome here. 

And it’s not simply the questions: Florida has such a high burden of proof, and the Special River Masters’ reports favored Georgia in most respects. Not to mention that “science data” can be interpreted subjectively and conflicting expert reports flummox non-scientists.

And that’s this week’s Legal Docket.


(AP Photo/J. Scott Applewhite) In this Nov. 5, 2020 file photo, the Supreme Court is seen in Washington. 

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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