High court to decide if Mississippi water suit is all wet

In a decision hailed by the city, the Fifth Circuit Court of Appeals in New Orleans on Friday affirmed a lower court’s dismissal of Mississippi’s 2005 lawsuit against Memphis and its municipal utility over the use of water from a aquifer beneath several states.

Appeals court decision on water rights

The case must be refiled with the Supreme Court, which has exclusive jurisdiction in disputes between states, the court said. Tennessee is an “indispensable party” to the suit, the judges said, even though it wasn’t named as a defendant.

Despite the setback, attorneys for Mississippi said they’re prepared to take the case to the higher court.

“Either way, Mississippi will get its day in court and Memphis will have to answer and account for its theft of Mississippi’s water,” Don Barrett, lead counsel for the state, said in a text message Friday afternoon.

Mississippi Atty. Gen. Jim Hood, who filed the suit, said the ruling addresses only the proper court for the case, not its merits.

“We look forward to stopping the flow of our pure water to the Memphis pumps and recouping restitution for the loss of Mississippi resources,” he said in a statement.

The ruling brought a measure of relief to the city and Memphis Light, Gas and Water Division, which had faced an estimated $1 billion in damages sought by Mississippi for lost water.

“From the beginning we knew this lawsuit did not have merit. The trial court, and now the Court of Appeals, have both upheld our position,” said Charlotte Knight-Griffin, MLGW manager of legal services.

Elevating the case to the nation’s highest court promises to add to lawyers’ expenses that already have exceeded $1 million on each side.

In the suit, originally filed in U.S. District Court in Oxford, Hood charged that through excessive pumping from the Memphis sand aquifer, the city and MLGW stole water from under his state.

Large depressions created in the Memphis sand by city wells have diverted water that’s been beneath Mississippi for thousands of years, sucking it across the state line into MLGW’s well fields, according to the suit. Of the water pumped by the utility, about one-third comes from Mississippi.

City and utility officials, while emphasizing that all the wells lie within Tennessee and were drilled straight down, don’t dispute that the pumping has pulled water from Mississippi. But they contend MLGW’s use of the aquifer is fair and causes no harm to Mississippi.

“The city and Light, Gas and Water are very good stewards of the aquifer,” co-lead counsel Leo Bearman said Friday.

“Mississippi is not in danger of going dry or being unable to use its share of the aquifer.”

Affirming a February 2008 decision by U.S. Dist. Judge Glen H. Davidson, the appellate court said that because the aquifer is an interstate resource, the water must be formally divvied up before one state can sue another for “invading its share.”

Commercial Appeal